Ferguson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Clements, Kelsey, McClanahan,
Haley, Petty, Beales and Millette
Argued at Richmond, Virginia

MICHAEL RAY FERGUSON, JR.
OPINION BY
v. Record No. 0748-06-3 JUDGE ROBERT P. FRANK
JULY 22, 2008
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge

Glenn L. Berger (Berger & Thornhill, on brief), for appellant.

Josephine F. Whalen, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on brief), for appellee.

Michael Ray Ferguson, Jr., appellant, was convicted of burglary, in violation of Code

§ 18.2-91, and grand larceny, in violation of Code § 18.2-95. 1 On appeal, appellant contends that

1
Appellant noted an appeal to the revocation of his suspended sentence. However, he
never challenged this revocation before the panel considering the merits of his appeal, and, thus,
the panel’s opinion did not address the issue.
In his brief on rehearing en banc, appellant argued that “[t]he revocation of [appellant’s]
suspended sentence was based solely on his convictions for breaking and entering and grand
larceny. A reversal of these convictions removes the basis for the revocation and the revocation
should therefore be reversed.” Appellant does not provide any argument or reasoning for this
conclusion, and he cites no authority for his proposition.
A reversal of an underlying conviction does not necessarily require the reversal of the
revocation of a suspended sentence that flows from that conviction. Resio v. Commonwealth, 29
Va. App. 616, 621-22, 513 S.E.2d 892, 895 (1999) (holding that the suspension of a suspended
sentence can be revoked based on “substantial misconduct,” that such revocation does not hinge
on the “conviction” of a criminal offense based on that misconduct, and that the pendency of a
conviction on appeal does not necessarily impact the trial court’s decision to revoke a suspended
sentence).
It is clear from the record that the trial court considered the conduct underlying the
conviction in revoking appellant’s suspended sentence. At the time appellant pled guilty to
burglary and grand larceny, the Commonwealth recited the factual details of those offenses to the
trial court. Appellant agreed with the Commonwealth’s recitation. Thus, the trial court heard
the trial court erred in denying his motion to suppress statements he made to police officers.

Appellant argues that these statements were taken in violation of his Fifth Amendment right to

counsel. A panel majority of this Court found that the trial court erred in denying appellant’s

motion to suppress, and reversed appellant’s convictions. We granted a petition for rehearing

en banc at the request of the Commonwealth, and stayed the mandate of the panel decision. Upon

rehearing en banc, we reverse appellant’s convictions for burglary and grand larceny.

BACKGROUND

On July 28, 2005, police officers stopped appellant’s vehicle in the town of Altavista, which

is located in Campbell County. These officers detained appellant in his vehicle until police officers

from the neighboring jurisdiction responded to the scene, since appellant’s vehicle matched the

description of a vehicle involved in a breaking and entering of a home in Pittsylvania County.

When Investigator Hagerman of the Pittsylvania County Sheriff’s Department arrived on

scene, he asked appellant to go with the officers to the police department in the Town of Hurt in

Pittsylvania County to “talk.” This police department was located approximately one-half of a mile

from where appellant’s vehicle was stopped. Appellant drove his vehicle to the police department,

followed by five police officers in their police vehicles. Three of those police officers, including

Investigator Hagerman, accompanied appellant into the police department. 2

The interview began at 1:25 p.m. Investigator Hagerman told appellant that they were

interviewing him “in reference to a B & E that occurred at the Mark Worley residence” the previous

evidence of “substantial misconduct,” independent of the criminal convictions, on which to base
its revocation of appellant’s suspended sentence. Indeed, the trial court noted in the revocation
order that it had made its decision based on the “evidence adduced in open court in the presence
of [appellant].” As appellant presents no argument as to why we should depart from our
reasoning in Resio, we find that the evidence of substantial misconduct was sufficient,
independent of the criminal convictions, to revoke appellant’s suspended sentence.
2
The Hurt Police Department is located in the town hall building, and the interview with
appellant occurred in the chamber of the town council.
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day.3 Investigator Hagerman then asked appellant for permission to search his vehicle. Appellant

responded, “Nah, I want a lawyer, you know what I’m saying?” Investigator Hagerman replied,

“Okay. But anyway . . . .” Investigator Hagerman then read appellant his Miranda rights, and asked

appellant to sign a document acknowledging that he had been read his Miranda rights.

Investigator Hagerman continued the conversation with appellant:

Hagerman: Michael, I’ll just tell you what the offense was that
we were talking about uh, do you want to go ahead
and talk with me?

[Appellant]: Uh, my moma [sic] said that if I get in any more
trouble I need a lawyer.

Hagerman: Okay, well, you don’t have to talk to me. Let me
talk to you now.

Investigator Hagerman did not ask appellant any questions regarding his request for counsel, but

instead proceeded to talk to appellant about the instant offenses.

Hagerman: I’ve got positive identification of your car as it was
pulling out of that house yesterday. Uh, there was
about four thousand dollars worth of items stolen.
Now, if you’re willing to talk. If you want to go
ahead and talk to me about this fine, if you don’t,
you know you’re in trouble right now. Uh, I’m not,
I’m not playing with you. I’m not, I’m –

[Appellant]: I understand.

Hagerman: [Unintelligible] straight out. Uh, the only hope
you’ve got right now is to come clean as you can
get. Let me try to get this stuff back that was stolen,
that was taken, and uh, if, you know, you’re on
probation, I mean you need to think for yourself,
you’re twenty years old. [Unintelligible] saw the
vehicle come down the hill right behind your car
when you was [sic] pulling out spinning wheels.

[Appellant]: I don’t nothing [sic] about that.

3
The conversation between appellant and the police officers was recorded, and a
transcript of that recording was entered into evidence at the hearing on the motion to suppress.
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 Hagerman: Okay. Where was [sic] you at yesterday?

[Appellant]: I was with my daddy up at the house.

Investigator Hagerman then obtained from appellant his address, his father’s name, and

whether any of his friends were with him the day before. Investigator Hagerman questioned

appellant’s alibi, saying, “[Y]ou think your daddy is going to say that you were home all day

yesterday?” He also asked appellant about his employment status and how he got his money.

At that point, Investigator Hagerman told appellant that he was going to let him “sit here for

a few minutes” and that “this concludes the interview.” Investigator Hagerman then turned off the

tape recorder, and told appellant that if he returned to Pittsylvania County in the future, Investigator

Hagerman would put him in jail. Investigator Hagerman left the room with Deputy C.W. Glass,

asking Chief Brian Marr of the Hurt Police Department to stay in the room with appellant. Chief

Marr knew appellant, through appellant’s mother, prior to his interaction with him that day.

For twenty minutes, Chief Marr and appellant sat in silence in the room. Appellant then

stated either “I messed up” or “This is messed up.” 4 Chief Marr testified that they then began to

discuss appellant’s family and his job status, and Chief Marr told appellant that “he needed to help

his [sic] self.” About 10 minutes of discussion occurred between appellant and Chief Marr before

Chief Marr asked Investigator Hagerman to return to the room. At that time, Chief Marr began

recording the second part of the interview.

The transcript of the second part of the interview indicates a portion of what appellant and

Chief Marr discussed before the tape began recording. At one point, Chief Marr stated, “I’ve

adivsed [sic] you that you can help yourself, okay.” Later in the statement, Chief Marr

acknowledged part of the earlier, unrecorded conversation, “[J]ust like I’ve told you before, we

4
Chief Marr testified that he did not know exactly what appellant said that broke the
silence, and appellant testified at the suppression hearing that appellant had said that he “[didn’t]
want to go to jail.”
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know more than what you’re telling us. . . . Help yourself out. You come [sic] this far man. You

want me to help you and you want the investigator to help you.” Chief Marr also alluded to

promises made by himself and Investigator Hagerman that were not recorded, saying “The man

[Investigator Hagerman] has already given you his word to help you. I’ve give [sic] you my word

to help you.”

Chief Marr read appellant his Miranda rights again, and “asked him would he speak with

[Chief Marr] rather than Investigator Hagerman, would he feel more comfortable with that.”

Appellant indicated that he would. Appellant gave a statement regarding the offenses at

approximately 2:00 p.m.

After making these statements, appellant was arrested.

The trial court determined that appellant made a clear and unambiguous request for counsel,

and suppressed any statements made to Investigator Hagerman before he left the room. However,

the trial court found that appellant “reinitiated the conversation” and “broke the silence.” The trial

court denied appellant’s motion to suppress his statements made to Chief Marr. Appellant then

entered a conditional plea of guilty pursuant to Code § 19.2-254, preserving for appeal the alleged

violation of his Fifth Amendment right to counsel.

This appeal follows.

ANALYSIS

Appellant contends that, after he “clearly asserted his right to counsel,” police officers

engaged in “coercive tactics,” failed to provide counsel, and continued to interrogate him, in

violation of the Fifth Amendment. 5 Appellant argues that, as a result, any statements he made

must be suppressed.

5
Appellant, in his question presented, also argued that his statements were taken in
violation of his Sixth Amendment right to counsel. However, appellant did not make any
argument, nor did he cite to any authority, in support of his contention. As such, we do not
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 On appeal from a trial court’s ruling on a motion to suppress, the appellant must show

that the trial court’s decision constituted reversible error. See Stanley v. Commonwealth, 16

Va. App. 873, 874, 433 S.E.2d 512, 513 (1993). We view the evidence in the light most

favorable to the prevailing party, granting to it all reasonable inferences fairly deducible

therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48

(1991). We review the trial court’s findings of historical fact only for clear error. See Shears v.

Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996). However, we review de

novo the trial court’s application of defined legal standards to the particular facts of a case.

Ornelas v. United States, 517 U.S. 690, 697 (1996).

The Fifth Amendment Right to Counsel

“The right of a criminal suspect to have an attorney present during custodial interrogation

was first articulated by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 469-73 (1966).”

Commonwealth v. Hilliard, 270 Va. 42, 49, 613 S.E.2d 579, 584 (2005). The Court in Miranda

“held that before interrogating a suspect who is in police custody, law enforcement officers must

inform the suspect of certain rights, including the right to the presence and assistance of counsel.”

Id. “Miranda conditioned the admissibility at trial of any custodial confession on warning a suspect

of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial

questioning generally requires exclusion of any statements obtained.” Missouri v. Seibert, 542 U.S.

600, 608 (2004).

In Edwards v. Arizona, 451 U.S. 477 (1981), the Court “established a second layer of

prophylaxis for the Miranda right to counsel[,]” McNeil v. Wisconsin, 501 U.S. 171, 176 (1991),

holding that, “an accused, . . . having expressed his desire to deal with the police only through

consider this issue on appeal. Rule 5A:20(c); Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992) (“Statements unsupported by argument, authority, or citations to the
record do not merit appellate consideration.”).
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counsel, is not subject to further interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further communication, exchanges, or

conversations with the police.” Edwards, 451 U.S. at 484-85.

Thus, the prophylactic protections that the Miranda warnings
provide to counteract the “inherently compelling pressures” of
custodial interrogation and to “permit a full opportunity to exercise
the privilege against self[-]incrimination,” are implemented by the
application of the Edwards corollary that if a suspect believes that
he is not capable of undergoing such questioning without advice of
counsel, then it is presumed that any subsequent waiver that has
come at the authorities’ behest, and not at the suspect’s own
instigation, is itself the product of the “inherently compelling
pressures” and not the purely voluntary choice of the suspect.

Arizona v. Roberson, 486 U.S. 675, 681 (1988) (quoting Miranda, 384 U.S. at 467).

Only if the accused initiates further “communication, exchanges, or conversations with the

police,” and only if those communications result in the accused changing his or her mind and freely

and voluntarily waiving the right to counsel, may the police resume interrogation without violating

the Edwards rule. Roberson, 486 U.S. at 682.

In evaluating the admissibility of a statement under the Edwards rule, we apply a three-part

analysis. First, the trial court must determine whether the accused

“unequivocally” invoked his or her right to counsel. Second, the trial
court must determine whether the accused, rather than the authorities,
initiated further discussions or meetings with the police. Third, if the
accused did initiate further discussions or conversations with police,
the trial court must then ascertain whether the accused knowingly
and intelligently waived the previously invoked right to counsel.

Giles v. Commonwealth, 28 Va. App. 527, 532, 507 S.E.2d 102, 105 (1998).

Once an accused asserts his or her right to counsel, subsequent
waiver of that right is not sufficient to make admissible any
incriminating statements thereafter obtained, even if investigators
have re-Mirandized the accused, unless the statements are initiated
by the defendant and shown to be based on a knowing, intelligent,
and voluntary waiver.

Id. at 531, 507 S.E.2d at 105.
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 Request for Counsel

We must consider the first prong of the Edwards analysis: whether appellant made an

unequivocal request for counsel. 6

The Commonwealth contends that appellant’s first request for counsel “related solely to

the issue of consent to search” and that appellant’s second request for counsel “was merely a

restatement of his mother’s advice.” The Commonwealth argues that neither “comment” would

have been “understood by a reasonable police officer under the circumstances to be a request to

have counsel present during the interrogation.” We disagree.

“[W]hether an accused ‘clearly requested an attorney during a custodial interrogation is a

mixed question of law and fact.’” Medley v. Commonwealth, 44 Va. App. 19, 30, 602 S.E.2d

411, 416 (2004) (en banc) (quoting Commonwealth v. Redmond, 264 Va. 321, 326, 568 S.E.2d

695, 697 (2002) (plurality opinion)). “‘The determination of what [the accused] actually said is a

question of fact that we review only for clear error. . . . Whether those words are sufficient to

invoke the right to counsel is a legal determination that we review de novo.’” Id. (quoting

Redmond, 264 Va. at 327, 568 S.E.2d at 698).

“[The Supreme] Court has consistently held that a clear and unambiguous assertion of the

right to counsel is necessary to invoke the Edwards rule.” Midkiff v. Commonwealth, 250 Va.

262, 266, 462 S.E.2d 112, 115 (1995). “[A] suspect must state his desire to have counsel present

with sufficient clarity that a reasonable police officer under the circumstances would understand

the statement to be a request for counsel.” Hilliard, 270 Va. at 49, 613 S.E.2d at 584 (citing

Davis v. United States, 512 U.S. 452, 459 (1994)). If, however, a suspect’s reference to an

attorney is either ambiguous or equivocal, such that a reasonable officer under the circumstances

6
The trial court found that appellant’s first request for counsel was clear and unequivocal
and that, while “his second statement [was] not clear,” it “tend[ed] to support his first statement
that he wants a lawyer at that point.”
-8-
would only have understood that the suspect might be invoking his right to counsel, the officer is

not required to stop questioning the suspect. Davis, 512 U.S. at 459, 461; Redmond, 264 Va. at

328-29, 568 S.E.2d at 699.

At the outset of the interview, Investigator Hagerman asked appellant for consent to

search his vehicle. Appellant responded, “Nah, I want a lawyer, you know what I’m saying?” In

context, appellant clearly wanted an attorney before he was interrogated. Police officers told

appellant he was being interviewed in connection with a breaking and entering. Further, nothing

in appellant’s first statement indicated that he wanted a lawyer only if the police were going to

search his vehicle. Appellant denied consent to search his vehicle, and then he stated his request

to have counsel present.

We find appellant’s first request for counsel clear and unambiguous. 7 We hold that a

reasonable officer under the circumstances would understand that appellant was invoking his

right to counsel.

Initiation of Discussion After Request for Counsel

As appellant asserted his right to counsel, we then turn to the second prong of the

Edwards analysis: whether police officers or appellant initiated further discussions after

appellant invoked his right to counsel.

The Supreme Court in Miranda and Edwards made clear that “‘[i]f the individual states

that he wants an attorney, the interrogation must cease until an attorney is present.’”

Commonwealth v. Gregory, 263 Va. 134, 146, 557 S.E.2d 715, 722 (2002) (quoting Miranda,

384 U.S. at 474). “The Edwards rule provides a ‘relatively rigid requirement’ that police and

prosecutors must observe.” Hines v. Commonwealth, 19 Va. App. 218, 221, 450 S.E.2d 403,

7
Because we find appellant’s first request sufficient to invoke his right to counsel, we
need not consider whether his second statement referring to an attorney was clear and
unequivocal.
-9-
404 (1994) (quoting Fare v. Michael C., 442 U.S. 707, 718 (1979)). “[T]he rigid rule [was

fashioned to announce] that an accused’s request for an attorney is per se an invocation of his

Fifth Amendment rights, requiring that all interrogation cease.” Michael C., 442 U.S. at 719;

see also Gregory, 263 Va. at 147, 557 S.E.2d at 722 (“The prophylaxis of Miranda and Edwards

provides the right to have counsel present during interrogation as an additional safeguard in the

exercise of the right against self-incrimination.”). Thus, the rule in “Edwards focuses on the

state of mind of the suspect and not of the police.” Roberson, 486 U.S. at 687.

The facts in the instant case are markedly similar to those in Hines, 19 Va. App. 218, 450

S.E.2d 403. There, detectives from two different jurisdictions were present in the interview

room with Hines in order to question him about separate criminal offenses that had occurred in

their respective cities. Id. at 220, 450 S.E.2d at 403. The Hampton detective read Hines his

Miranda rights, and then began questioning him about a criminal offense in Hampton. Id. Hines

became aggravated and stated that he wanted to return to his jail cell and to speak to his attorney.

Id. In response, the Hampton detective said, “‘All I wanted to know is whether you’re going to

be a witness or a defendant in the matter.’” Id. Hines asked the detective what he meant by

“witness,” and the discussion between the two continued. Id. Hines made inculpatory

statements regarding the Hampton offenses. Id. A Newport News detective was present in the

room for this entire exchange. Id.

When the Hampton detective concluded his interview, he exited the room, leaving Hines

with the Newport News detective. Id. The Newport News detective then asked Hines if he

understood his Miranda rights, and Hines stated that he did. Id. Hines then made incriminating

statements regarding the Newport News offenses, and these statements and offenses were the

subject of the appeal. Id. at 220, 450 S.E.2d at 403-04.

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 After finding that Hines made a “specific and unambiguous request to consult with his

lawyer,” this Court analyzed the conversation that occurred after his request under the second

prong of Edwards. This Court held that

[b]y asking Hines “whether [he was] going to be a witness or a
defendant in the matter,” the officer continued the conversation that
he was bound to cease. This inquiry was a reinitiation of the
dialogue that Hines sought to terminate. . . . Thus, the ensuing
“communication, exchanges, or conversation with the police,”
Edwards, 451 U.S. at 485, was initiated by the police officer’s further
inquiry to Hines.

Hines, 19 Va. App. at 221, 450 S.E.2d at 404 (second alteration in original).

In Hines, this Court did not evaluate whether the defendant “reinitiated” the conversation

with police by asking what the officer meant by “witness,” nor did we parse out the

conversations between the two different detectives. Instead, this Court found that, “[w]hen the

officer continued the dialogue without first giving Hines access to his lawyer, the statements that

he elicited did not follow upon a valid waiver of Hines’s Fifth Amendment rights.” Id. at 222,

450 S.E.2d at 405. We ruled that Hines’s statement to the Newport News detective should have

been suppressed on those grounds. Id.

Any consideration of whether a defendant “re-initiated” the dialogue with police

necessarily presumes that police officers have stopped the interrogation upon a defendant’s

request for counsel. Indeed, the analysis under Edwards presupposes that police will cease all

interrogation after a suspect invokes his right to counsel. When police do not cease

interrogation, their statements constitute an “initiation” of further discussions with a suspect, and

any incriminating statements gained during that discussion are deemed inadmissible. Hines, 19

Va. App. at 221, 450 S.E.2d at 404.

Here, as in Hines, despite appellant’s invocation of his right to counsel, the interview

never ceased. Investigator Hagerman and Chief Marr continued questioning appellant as if his

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request for counsel had never been made. Investigator Hagerman ignored appellant’s initial

request, saying, “Okay. But, anyway . . . .” When appellant made a second statement

referencing an attorney, Investigator Hagerman acknowledged that appellant sought to terminate

the interview, saying, “Okay, well, you don’t have to talk to me. Let me talk to you now.” Chief

Marr was present during this entire exchange, and was aware that appellant had invoked his right

to counsel. In response to Investigator Hagerman’s subsequent questions, appellant denied any

involvement in the crime, provided an alibi for his whereabouts, and furnished an explanation for

how he had money when he did not hold any gainful employment.

Investigator Hagerman’s continued inquiry was interrogation. “[T]he term

‘interrogation’ under Miranda refers not only to express questioning, but also to any words or

actions on the part of the police (other than those normally attendant to arrest and custody) that

the police should know are reasonably likely to elicit an incriminating response from the

suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (footnote omitted). The “Innis

standard” thus presents a question of law, “requiring a determination whether an objective

observer would view an officer’s words or actions as designed to elicit an incriminating

response.” Blain v. Commonwealth, 7 Va. App. 10, 15, 371 S.E.2d 838, 841 (1988).

Investigator Hagerman’s questions were clearly “designed to elicit an incriminating

response.” Investigator Hagerman told appellant that a witness could place his vehicle at the

crime scene at the time of the crime, and then advised appellant that “the only hope” he had was

to “come clean as you can get.” Investigator Hagerman told appellant that someone had

identified his car leaving the crime scene. Investigator Hagerman said that if appellant did not

want to talk to him “about this,” that appellant knew that he was “in trouble right now.”

Investigator Hagerman stated that appellant’s “only hope” was to confess, and mentioned

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appellant’s probationer status. Investigator Hagerman questioned whether appellant’s alibi

would hold up, and inquired as to how he had any money when he was not working at the time. 8

Then, as in Hines, Investigator Hagerman left appellant in the company of Chief Marr,

who knew appellant prior to their interaction that day. Chief Marr was present during the entire

exchange between Investigator Hagerman and appellant, and had heard appellant’s request for

counsel. Appellant had the opportunity to consider Investigator Hagerman’s statements while he

sat in silence for twenty minutes with Chief Marr.

This period of silence did not suffice as a “break” in the interrogation sufficient to render

appellant’s later statements admissible. In Seibert, 542 U.S. 600, 9 the United States Supreme

Court found that a twenty-minute break in questioning of the suspect did not separate the

interview into two independent interrogations, as “it would ordinarily be unrealistic to treat two

spates of integrated and proximately conducted questioning as independent interrogations

subject to independent evaluation simply because Miranda warnings formally punctuate them in

8
It is of no consequence that appellant did not make any inculpatory statements during
his first discussion with Investigator Hagerman. As the Supreme Court of Virginia observed in
Gregory, “it is not the fruits of the investigation that are at issue; rather, it is the coercive
atmosphere of the custodial interrogation itself.” Gregory, 263 Va. at 147-48, 557 S.E.2d at 723
(holding that the Court of Appeals erred in utilizing a harmless error analysis as to the
defendant’s first interrogation where nothing inculpatory came from that interrogation).
9
The dissent takes issue with our reliance on Seibert, 542 U.S. 600, noting that it is a
“plurality opinion.” However, that it is a plurality opinion is relevant only if we are citing to
Seibert for a proposition that is not endorsed by the majority of the Court. As Justice Kennedy’s
concurring opinion noted, he agreed “with much in the careful and convincing opinion for the
plurality,” though he noted that his approach did “differ in some respects.” Seibert, 542 U.S. at
618 (Kennedy, J. concurring). Justice Kennedy’s divergence from the opinion of Justice Souter
focused solely on whether a sort of “good faith” exception applied in the context of a two-stage
interrogation. Justice Kennedy did not take issue with Justice Souter’s conclusion that the break
in the interview did not suffice to transform the questioning into two discrete interrogations
entitled to separate reviews. Indeed, the very fact that Justice Kennedy concurred in the
judgment reversing Seibert’s conviction hinges on his agreement that the two-stage interrogation
process in Seibert was a single course of conduct, despite the break in the interview, that violated
the defendant’s rights under Miranda. That is the very proposition for which we cite to Seibert,
and that is the very proposition with which five Justices of the United States Supreme Court
agreed.
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the middle.” Seibert, 542 U.S. at 614 (emphasis added). Police officers questioned Seibert at a

police station and engaged in an interrogation technique that intentionally withheld Miranda

warnings during initial questioning. Id. at 605. Police then allowed Seibert to have a

twenty-minute “coffee and cigarette break,” though she remained in continuous police custody.

Id. After this break, officers read Seibert her rights under Miranda, and elicited incriminating

information by using statements she had made before she received the warnings. Id. The Court

found that this break was not sufficient to turn the interview into two distinct interrogations. Id.

at 614. The Court characterized this break as merely a “pause” in the interrogation, and held that

the Miranda violation that occurred before the break served as grounds to exclude statements

made after the break in questioning. Id. at 616-17.

The same rationale applies in the instant case. Investigator Hagerman purposefully

exited the interview room, after ignoring appellant’s requests for counsel and cajoling him into

making statements, and left him in the company of Chief Marr, a friend of appellant’s mother.

After a conversation with Chief Marr about appellant’s family and after Chief Marr and

Investigator Hagerman promised to “help” appellant in the case, appellant waived his Miranda

rights and made incriminating statements. This course of conduct, undertaken by both

Investigator Hagerman and Chief Marr, was clearly tailored to “elicit an incriminating response

from appellant,” despite his repeated requests for counsel. As in Seibert, the Commonwealth

cannot rely on a twenty-minute “pause” in the questioning to save the violation of appellant’s

right to counsel. Appellant’s incriminating statements were the direct result of Investigator

Hagerman’s continued interrogation of appellant after he invoked his right to counsel and the

ensuing period of silence in the custody of Chief Marr. “[I]f the accused has invoked his or her

right to counsel and has remained in continuous custody, the statement is inadmissible unless the

trial court finds that the statement was made at a meeting with the police that was initiated by the

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defendant or attended by his lawyer.” Quinn v. Commonwealth, 25 Va. App. 702, 712, 492

S.E.2d 470, 475 (1997); see also Seibert, 542 U.S. at 614.

By questioning appellant in this manner after he requested counsel, Investigator

Hagerman and Chief Marr “continued the conversation that [they were] bound to cease.” Hines,

19 Va. App. at 221, 450 S.E.2d at 404. “Once [appellant] invoked his right to confer with his

counsel, ‘a valid waiver of that right cannot be established by showing only that he responded to

further police-initiated custodial interrogation even if he has been advised of his rights.’” Id.

(quoting Edwards, 451 U.S. at 484 (footnote omitted)).

“If the police do subsequently initiate an encounter in the absence
of counsel (assuming there has been no break in custody), the
suspect’s statements are presumed involuntary and therefore
inadmissible as substantive evidence at trial, even where the
suspect executes a waiver and his statements would be considered
voluntary under traditional standards. This is ‘designed to prevent
police from badgering a defendant into waiving his previously
asserted Miranda rights.’” McNeil, 501 U.S. at 177 [(quoting
Michigan v. Harvey, 494 U.S. 344, 350 (1990)].

Gregory, 263 Va. at 148, 557 S.E.2d at 723.

At first glance, Mundy v. Commonwealth, 11 Va. App. 461, 390 S.E.2d 525, aff’d on

reh’g en banc, 399 S.E.2d 29 (1990), and Correll v. Commonwealth, 232 Va. 454, 352 S.E.2d

352 (1987), appear to be factually analogous to the instant case. Both Correll and Mundy

involve situations where, during the course of interrogation, a suspect requests counsel and

police officers continue to question the suspect in complete disregard of this request. However, a

closer reading of each case reveals legally significant distinctions between those cases and the

one presently before this Court.

In Mundy, police officers were questioning Mundy at the police department about his

involvement in a robbery and shooting. Mundy, 11 Va. App. at 467, 390 S.E.2d at 528. During

the initial interrogation, officers advised Mundy of his Miranda rights and Mundy made two

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requests for counsel. Id. Officers ignored these requests, and continued their interrogation

without providing Mundy with an attorney. Id. at 468, 390 S.E.2d at 528. After making the first

statement, where he confessed to participating in the robbery but denied any involvement in the

shooting, Mundy was transferred to a different area of the building. Id. Three hours later,

Mundy asked to speak with the officers again, and, after waiving his Miranda rights, Mundy

made a second statement. Id. The next day, while in court, Mundy expressed his desire to talk

to the Commonwealth’s attorney. Id. After waiving his Miranda rights again, Mundy made his

third statement. Id.

At the hearing on his motion to suppress his statements, Mundy argued only that he was

coerced into making the three statements. Id. at 469, 390 S.E.2d at 529. As to the first

statement, Mundy contended that officers denied him the use of the bathroom, resulting in his

personal discomfort. Id. Additionally, Mundy maintained that the officers’ refusal to provide

him with an attorney at his request coerced him into making his first statement. Id. Further,

Mundy argued that, because he had “let the cat out of the bag” in making the first statement, the

coercion present in the first statement caused the second and third statements to be coerced. Id.

The Commonwealth in Mundy conceded that the first statement was inadmissible, but denied

that there was any coercion present when Mundy made any of the statements. Id.

Mundy framed his argument to the trial court, and on appeal, under the third prong of the

Edwards analysis, namely whether his waivers of his Miranda rights were voluntary. Id. Mundy

did not contend that police officers reinitiated interrogation in violation of Edwards; indeed, an

argument based on the third prong of the Edwards analysis presumes that the defendant reinitiated

the interrogation. Giles, 28 Va. App. at 532, 507 S.E.2d at 105 (“Third, if the accused did initiate

further discussions or conversations with police, the trial court must then ascertain whether the

accused knowingly and intelligently waived the previously invoked right to counsel.” (emphasis

- 16 -
added)). In Mundy, this Court based its analysis solely on the arguments before the court, 10 and

evaluated Mundy’s statements under the third prong of Edwards. Mundy, 11 Va. App. at 470, 390

S.E.2d at 529 (“We, therefore, must decide whether the waivers of the Miranda rights obtained

before the two statements were knowingly and intelligently given.”).

In Correll, a Roanoke police officer questioned Correll following his arrest for robbery

and murder. Correll, 232 Va. at 460, 352 S.E.2d at 355. During that questioning, Correll

requested counsel, “but said he could not afford to hire a lawyer.” Id. Correll did not consult

with an attorney, “but discussions continued between Correll and the police.” Id. Correll was

questioned on the day of his arrest, as well as on the following day, but the statements Correll

made on these days were not offered into evidence. 11 Id. On the third day, Correll took a

polygraph test and was returned to the jail in Franklin County. Id. There, he told a Franklin

County police officer that he wanted to talk to him and to explain the polygraph results; this

officer was unaware that Correll had requested an attorney when he was incarcerated in

Roanoke. Id. The Franklin County officer read Correll the warnings under Miranda, and Correll

waived his rights. Id. Correll then confessed to the crimes. Id.

On appeal, Correll never alleged that his request for counsel on the first day of

interrogation was linked to any subsequent violations of his Fifth Amendment rights. Instead,

Correll argued that his conversation with the Franklin County officer on the third day was “an

extension of the interrogation that began that morning . . . [with] a polygraph test.” Id. at 463,

10
In fact, the Court in Mundy could not consider whether the officers reinitiated the
interrogation under the second prong of the Edwards analysis, as that argument was not
presented to the trial court and was not before them on appeal. See Belmer v. Commonwealth,
36 Va. App. 448, 458, 553 S.E.2d 123, 128 (2001) (“‘We do not address’ issues that the parties
failed to raise at trial and failed to present or develop on appeal.” (quoting Powell v.
Commonwealth, 36 Va. App. 231, 232, 548 S.E.2d 926, 927 (2001))); see also Rules 5A:18 and
5A:20.
11
The opinion does not contain any information about the details of the conversation
between Correll and Roanoke police officers during either of the first two interviews.
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352 S.E.2d at 357. However, the opinion contains no information about the circumstances

surrounding Correll’s polygraph test. 12 Instead, the Court had only the testimony of the Franklin

County police officer and Correll that indicated that Correll initiated the third interview. Id. at

461, 352 S.E.2d at 356. Based on the information before the Court on appeal, the Court held that

Correll had initiated the third interview and proceeded to analyze whether Correll’s waiver of his

Miranda rights was knowing and voluntary. Id. at 464, 352 S.E.2d at 357.

Here, as in Hines, Investigator Hagerman and Chief Marr violated appellant’s Fifth

Amendment rights by continuing to interrogate appellant after he invoked his right to counsel.

See McDaniel v. Commonwealth, 30 Va. App. 602, 607, 518 S.E.2d 851, 854 (1999) (en banc)

(reversing the trial court’s denial of the defendant’s suppression motion because “the detective

gained [the defendant’s] confession by continuing the interrogation after [the defendant] had

invoked his Fifth Amendment right to counsel”). Since appellant was in the continuous custody

of police officers from the time he first invoked his right to counsel until he made incriminating

statements to Chief Marr, his confession to Chief Marr is presumed to be involuntary and is

inadmissible at trial. Gregory, 263 Va. at 148, 557 S.E.2d at 723.

We need not address whether appellant’s statement to Chief Marr that broke the period of

silence “reinitiated” a dialogue with police; Investigator Hagerman’s and Chief Marr’s continued

interrogation of appellant after he invoked his right to counsel initiated the dialogue with

appellant under the second prong of Edwards. Hines, 19 Va. App. at 222, 450 S.E.2d at 405.

12
The federal appellate court considering Correll’s federal habeas claim noted that

there is a complete dearth of information in the record concerning
the circumstances surrounding Correll’s decision to submit to the
polygraph examination or any further information pertaining to the
timing or events surrounding the disclosure of the results. Correll
simply failed to develop these facts during the state court
proceedings.

Correll v. Thompson, 63 F.3d 1279, 1288 (4th Cir. 1995).
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Because Investigator Hagerman and Chief Marr failed to cease questioning and interrogation of

appellant after appellant made an unequivocal request for counsel, “the statements that he

elicited did not follow upon a valid waiver of [appellant’s] Fifth Amendment rights.” Id. As

such, we find that appellant’s statements should have been suppressed.

CONCLUSION

We hold that appellant, while in police custody, made a clear and unequivocal request for

counsel. Police officers did not cease their interrogation in honor of that request, violating

appellant’s Fifth Amendment rights. This violation tainted any subsequent confession made by

appellant while he remained in the continuous custody of police officers. 13 We hold that the trial

court erred in denying appellant’s motion to suppress the statements he made to the officers.

Accordingly, we reverse appellant’s convictions and remand the case for a new trial if the

Commonwealth be so advised.

Reversed and remanded.

13
We do not suggest that the taint of an Edwards violation can never be attenuated under
any circumstances; however, it is clear from the case law that the circumstances here could not
and did not dissipate the taint in this case.
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Kelsey, J., with whom McClanahan, Haley, and Beales, JJ., join, dissenting.

I. REINITIATION FOLLOWING AN EDWARDS VIOLATION

This case illustrates well Justice Frankfurter’s aphorism that “the right answer usually

depends on putting the right question.” Estate of Rogers v. Comm’r, 320 U.S. 410, 413 (1943).

I respectfully disagree that we “need not address whether appellant’s statement to Chief Marr

that broke the period of silence ‘reinitiated’ a dialogue” with Chief Marr. Ante at 18. That

seems to me the very question this case must answer. And the answer given by the trial judge,

who heard from both Ferguson and Chief Marr on this subject, was that Ferguson — after about

twenty minutes of total silence — reinitiated the dialogue. I agree with the trial court and would

affirm its denial of Ferguson’s suppression motion.

To begin with, Ferguson does not argue (and I would not accept it if he did) that Chief

Marr’s unbroken silence was the functional equivalent of an interrogation. It would take a

remarkably potent — and, to date, unprecedented — legal fiction to deem an utterly mute police

officer the functional equivalent of an interrogator. Although “staring silently” at a suspect may

make him a bit ill at ease, it is hardly the equivalent of an interrogation. United States v.

Thongsophaporn, 503 F.3d 51, 57 (1st Cir. 2007). “While silence may feel awkward or

uncomfortable under some circumstances, there is no requirement that the police engage in small

talk.” Id.

Police officers, after all, “do not interrogate a suspect simply by hoping that he will

incriminate himself.” Arizona v. Mauro, 481 U.S. 520, 529 (1987); see also Jenkins v.

Commonwealth, 244 Va. 445, 453, 423 S.E.2d 360, 365 (1992). Nor is the “subtle compulsion”

of being confined to an “interview room,” by itself, the functional equivalent of a Miranda

interrogation. Gates v. Commonwealth, 30 Va. App. 352, 356, 516 S.E.2d 731, 733 (1999).

“‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion

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above and beyond that inherent in custody itself.” Rhode Island v. Innis, 446 U.S. 291, 300, 303

(1980) (rejecting an interpretation of Miranda “equating ‘subtle compulsion’ with

interrogation”); see also United States v. Kimbrough, 477 F.3d 144, 149-50 (4th Cir. 2007).

To his credit, Ferguson advances his argument on appeal along a far narrower path.

Ferguson admits he “did speak first” and thereby broke the long silence. See Appellant’s Br. at

11. 14 He does not claim his remark was in reply to something Investigator Hagerman may have

said prior to leaving the room. Instead, Ferguson contends only that his silence-breaking remark

was simply not “a request to waive his rights or to be interrogated.” Id. 15 My response to

Ferguson’s argument is equally simple: It does not have to be.

While an accused who clearly invokes his right to counsel is “not subject to further

interrogation by authorities until counsel has been made available,” Edwards v. Arizona, 451

U.S. 477, 484-85 (1981), the prophylactic bar on further interrogation lifts away when “the

accused himself initiates further communication, exchanges, or conversations with the police.”

Medley v. Commonwealth, 44 Va. App. 19, 31, 602 S.E.2d 411, 416 (2004) (en banc) (quoting

Commonwealth v. Gregory, 263 Va. 134, 146-47, 557 S.E.2d 715, 722 (2002), in turn quoting

Edwards, 451 U.S. at 484-85). Indeed, the Court in Edwards stressed, “we do not hold or imply

that Edwards was powerless to countermand his election” for counsel. Edwards, 451 U.S. at

485. For it would “make no sense to hold that once an accused has requested counsel, ‘[he] may

14
This fact alone distinguishes Hines v. Commonwealth, 19 Va. App. 218, 221, 450
S.E.2d 403, 404 (1994), which involved an Edwards violation followed by a conversation
“initiated by the police officer’s further inquiry” directed to the suspect.
15
Ferguson’s en banc brief argues: “Although the defendant did speak first, it was not a
request to waive his rights or to be interrogated. . . . A mere statement in the presence of the
officer is not a waiver of the right to counsel or an indication that Ferguson wanted to make a
statement or that he wanted to engage in conversation with the police concerning the offenses.”
Appellant’s Br. at 11-12. Ferguson’s reinitiation point is simply that he did not reinitiate, not
that he was legally incapable of reinitiating.

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never, until he has actually talked with counsel, change his mind and decide to speak with the

police without an attorney being present.’” Id. at 486 n.9 (quoting in parenthetical United States

v. Rodriguez-Gastelum, 569 F.2d 482, 486 (9th Cir. 1978) (en banc)).

The reinitiating remark by the suspect need not itself be an express waiver of the

suspect’s rights. It is enough that the remark evinces “a willingness and a desire for a

generalized discussion” about the investigation. Giles v. Commonwealth, 28 Va. App. 527, 535,

507 S.E.2d 102, 107 (1998) (quoting Foster v. Commonwealth, 8 Va. App. 167, 174, 380 S.E.2d

12, 16 (1989), in turn quoting Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983)).

Under this standard, “a request for a drink of water or a request to use a telephone” would

not qualify as a reinitiating remark. Bradshaw, 462 U.S. at 1045. But any other kind of remark

would qualify if it could be “fairly said to represent a desire on the part of an accused to open up

a more generalized discussion relating directly or indirectly to the investigation.” Id. So, an

uninvited statement like “Well what is going to happen to me now?” constitutes a reinitiating

remark. Id. at 1042. Similarly, a suspect’s mere inquiry into “what was going to happen to him”

would be enough to reinitiate a dialogue with police officers. Harrison v. Commonwealth, 244

Va. 576, 582-83, 423 S.E.2d 160, 164 (1992). When police officers hear such remarks, they

have every right to confirm the suspect’s true intentions and to inquire whether he “has changed

his mind about speaking to them without an attorney.” Giles, 28 Va. App. at 535, 507 S.E.2d at

107 (quoting Foster, 8 Va. App. at 174, 380 S.E.2d at 16).

In short, Ferguson’s argument on appeal — that his silence-breaking remark did not

constitute a “request to waive his rights or to be interrogated,” Appellant’s Br. at 11 — assumes

too much. Under settled principles, a reinitiating remark need not go that far. It need only

express “a willingness and a desire for a generalized discussion” about the investigation.

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Bradshaw, 462 U.S. at 1045-46. Ferguson’s uninvited remark, breaking a complete silence of

about twenty minutes, fully satisfied this standard.

I also find no relevance in the assertion that Investigator Hagerman, prior to leaving

Ferguson alone with Chief Marr, continued to question Ferguson after he invoked his Miranda

right to counsel. Ante at 11-15. The trial court suppressed all of Ferguson’s answers to these

questions. The trial court’s suppression order fully remedied any ostensible violation of

Ferguson’s Miranda rights by Hagerman. 16 Nothing in Miranda or any variant of the tainted-

fruit doctrine requires the suppression of Ferguson’s later confession given after he reinitiated a

dialogue with Chief Marr and after he expressly waived his Miranda rights. 17

Sitting en banc, we have reaffirmed that “the Miranda case, though requiring suppression

of admissions unlawfully obtained, does not require that subsequent statements or their fruits be

discarded as inherently tainted.” Mundy v. Commonwealth, 11 Va. App. 461, 473, 390 S.E.2d

525, 531, aff’d on reh’g en banc, 399 S.E.2d 29 (1990) (adopting en banc “the reasons stated in

the panel’s majority opinion”). Instead, Mundy explained, “the admissibility of any subsequent

statement should turn in these circumstances solely on whether it is knowingly and voluntarily

made.” Id. at 474, 390 S.E.2d at 532 (quoting Oregon v. Elstad, 470 U.S. 298, 309 (1985)).

16
I assume arguendo that Ferguson was in custody to the degree required by Miranda,
that his request for counsel was clear and unequivocal, and that some (but not all) of Investigator
Hagerman’s questions after the invocation of counsel could be characterized as continued
interrogation.
17
Reinitiation by a suspect can take place after an Edwards violation, even by a suspect
held continuously in custody. See Height v. State, 642 S.E.2d 812, 814 (Ga. 2007) (holding that
any “‘taint’ of the prior Edwards violation” was overcome when the accused “initiated the
further discussions with police leading to the statement in question, was re-apprised of his
Miranda rights in full, and signed a written waiver prior to giving his statement”); People v.
Bradford, 929 P.2d 544, 566 (Cal. 1997) (“[I]f the statement made after an Edwards violation is
voluntary, ‘the admissibility of any subsequent statement should turn in these circumstances
solely on whether it is knowingly and voluntarily made.’” (citation omitted)). A reinitiated
interrogation by the police, following an Edwards violation, cannot take place absent a break in
custody. Cf. Ante at 15 (indirectly quoting McNeil v. Wisconsin, 501 U.S. 171, 177 (1991)).
- 23 -
Thus, even in situations where an “officer’s question during processing was improper

interrogation,” the fact that the suspect “initiated the later police contact eliminates any taint that

might have arisen from the earlier questioning.” Savino v. Murray, 82 F.3d 593, 600 (4th Cir.

1996) (rejecting habeas collateral attack of conviction upheld by Savino v. Commonwealth, 239

Va. 534, 391 S.E.2d 276 (1990)); see also Height v. State, 642 S.E.2d 812, 814 (Ga. 2007).

Properly framed, then, the question we face “is whether a statement made in violation of

Edwards taints a subsequent confession not made in violation of Edwards.” See Howard v.

Moore, 131 F.3d 399, 414 n.16 (4th Cir. 1997). Absent some evidence that the subsequent

confession was truly involuntary — and none is alleged here — the answer is no.

II. SEIBERT’S INAPPLICABLE PLURALITY OPINION

This case also demonstrates how not to read plurality opinions of the United States

Supreme Court. The majority in our case states Missouri v. Seibert, 542 U.S. 600 (2004),

“found” that “a twenty-minute break in questioning” separating an un-Mirandized confession

from a later, nearly identical, Mirandized confession rendered both subject to the exclusionary

rule. Ante at 13. “The same rationale applies in the instant case,” the majority concludes. Id. at

14.

This reasoning, however, collapses upon its first premise. The plurality opinion in

Seibert was the opinion of four of nine Justices. “Because Seibert is a plurality decision and

Justice Kennedy concurred in the result on the narrowest grounds, it is his concurring opinion

that provides the controlling law.” United States v. Street, 472 F.3d 1298, 1313 (11th Cir. 2006)

(citing Romano v. Oklahoma, 512 U.S. 1, 9 (1994); Marks v. United States, 430 U.S. 188, 193

(1977); United States v. Gonzalez-Lauzan, 437 F.3d 1128, 1136 n.6 (11th Cir. 2006)); see United

- 24 -
States v. Mashburn, 406 F.3d 303, 308-09 (4th Cir. 2005). 18 This point is not a digression

unique to Seibert but a larger principle central to the proper understanding of stare decisis.

“When a fragmented Court decides a case and no single rationale explaining the result enjoys the

assent of five Justices, the holding of the Court may be viewed as that position taken by those

Members who concurred in the judgments on the narrowest grounds.” Mashburn, 406 F.3d at

308 (quoting Marks, 430 U.S. at 193); see also Panetti v. Quarterman, 127 S. Ct. 2842, 2856

(2007) (“When there is no majority opinion, the narrower holding controls.”).

By citing, quoting, and relying upon the reasoning of the four-Justice plurality in Seibert

as authoritative — instead of the narrower reasoning of Justice Kennedy’s concurrence — the

majority in our case misapplies settled principles of stare decisis. Ante at 13-15. The error is of

no small moment because the Seibert plurality sought to greatly limit the continuing precedential

effect of Oregon v. Elstad, 470 U.S. 298 (1985). Elstad held that “subsequent administration of

Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily

should suffice to remove the conditions that precluded admission of the earlier statement.” Id. at

314. Under Elstad, the only “relevant inquiry is whether, in fact, the second statement was also

voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding

18
See also United States v. Carter, 489 F.3d 528, 535 (2d Cir. 2007); United States v.
Courtney, 463 F.3d 333, 338 (5th Cir. 2006) (“[W]e find Seibert’s holding in Justice Kennedy’s
opinion concurring in the judgment.”); United States v. Ollie, 442 F.3d 1135, 1142 (8th Cir.
2006); United States v. Williams, 435 F.3d 1148, 1158 (9th Cir. 2006) (holding the “narrower
test” of Justice Kennedy’s concurrence “represents Seibert’s holding”); United States v. Kiam,
432 F.3d 524, 532-33 (3d Cir. 2006) (applying “the Seibert plurality opinion as narrowed by
Justice Kennedy”); United States v. Naranjo, 426 F.3d 221, 231-32 (3d Cir. 2005); United States
v. Black Bear, 422 F.3d 658, 664 (8th Cir. 2005); United States v. Stewart, 388 F.3d 1079,
1086-90 (7th Cir. 2004); United States v. Stewart, 388 F.3d 1079, 1090 (7th Cir. 2004); People
v. Loewenstein, 883 N.E.2d 690, 697 (Ill. App. Ct. 2008); Ford v. United States, 931 A.2d 1045,
1051-52 (D.C. 2007); State v. Pitts, 936 So. 2d 1111, 1136 (Fla. Dist. Ct. App. 2006); Cooper v.
State, 877 A.2d 1095, 1107 (Md. Ct. Spec. App. 2005).

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circumstances and the entire course of police conduct with respect to the suspect in evaluating

the voluntariness of his statements.” Id. at 318.

In contrast to Siebert’s plurality opinion, Justice Kennedy’s concurrence did not sideline

Elstad or cast any doubt on its continuing precedential value. Instead, the concurrence

recognized a narrow exception to Elstad “applicable only in the infrequent case” where the

police have used “a two-step questioning technique based on a deliberate violation of Miranda.”

Seibert, 542 U.S. at 620-22 (Kennedy, J., concurring in judgment) (emphasis added). In this

respect, “Seibert, rather than overruling Elstad, carved out an exception to Elstad for cases in

which a deliberate, two-step strategy was used by law enforcement to obtain the postwarning

confession.” United States v. Carter, 489 F.3d 528, 535-36 (2d Cir. 2007) (emphasis added)

(joining “all of our sister circuits that have decided the issue” in holding that “Siebert lays out an

exception to Elstad”). 19

In a footnote, ante at 13 n.9, the majority defends its reliance on the four-Justice Seibert

opinion on the ground that Justice Kennedy agreed with the plurality’s assertion that the twenty-

minute period did not convert the episode into two wholly separate interrogations. Maybe so,

but this benign observation leads to no end. The point of Justice Kennedy’s concurrence is that,

absent proof of a deliberate effort by police interrogators to thwart Miranda, the curative

principle of Elstad holds true even in the context of a single interrogation where the

constitutional violation takes place only twenty minutes prior to the voluntary, fully-warned,

confession. In other words, had Seibert not been a case “in which the two-step interrogation

19
See also Courtney, 463 F.3d at 338 (“Seibert requires the suppression of a post-
warning statement only where a deliberate two-step strategy is used and no curative measures are
taken; where that strategy is not used, [the admissibility] ‘continue[s] to be governed by the
principles of Elstad.’” (citation omitted)); Kiam, 432 F.3d at 532 (“Once we determine that the
Miranda violation was not deliberate, we must fall back on Elstad as instructed by Justice
Kennedy.”).

- 26 -
technique was used in a calculated way to undermine the Miranda warning,” Seibert, 542 U.S. at

622, Justice Kennedy would have not voted to reverse the conviction. The plurality’s failure to

differentiate between “intentional and unintentional two-stage interrogations,” Justice Kennedy

explained, “cuts too broadly.” Id. at 621-22. It was for this reason that Justice Kennedy (unlike

Justice Breyer) concurred not in the plurality’s reasoning, but only in its result. Cf. id. at 617

(Breyer, J., “concurring”), with id. at 618 (Kennedy, J, “concurring in the judgment”).

In our case, Ferguson did not argue in the trial court that the police deliberately tricked

him into confessing by obtaining an incriminating statement in violation of Miranda and then

waiting in silence for twenty minutes for his expected reinitiation in order to set up another

Miranda waiver opportunity. Nor did Ferguson make that argument on appeal either before the

panel or the en banc Court. To be sure, Ferguson has not once cited Seibert in any brief, at any

stage, of this case.

In sum, the majority’s misreading of Siebert serves only to compound its error in failing

to address the one truly dispositive question in this case: Did Ferguson reinitiate a conversation

with police and thereafter voluntarily waive his Miranda rights?

Because he did both, I respectfully dissent.

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