Medley v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank,
Humphreys, Clements, Felton and Kelsey
Argued at Richmond, Virginia

KARING BETHEL MEDLEY
OPINION BY
v. Record No. 1576-02-1 JUDGE ROBERT J. HUMPHREYS
SEPTEMBER 21, 2004
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Glen A. Tyler, Judge

William P. Robinson, Jr., for appellant. No brief on rehearing
submitted for appellant.

Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.

This matter comes before the Court on a rehearing en banc from an unpublished panel

decision rendered December 9, 2003. See Medley v. Commonwealth, 03 Vap UNP 1567021

(2003). In that decision, a divided panel of this Court reversed Medley’s convictions for

possession of cocaine with intent to distribute (in violation of Code § 18.2-248) and transporting

more than one ounce of cocaine into the Commonwealth with the intent to distribute (in violation

of Code § 18.2-248.01), finding that police officers failed to “scrupulously honor” Medley’s

invocation of his Miranda rights and, therefore, that the trial court should have granted Medley’s

motion to suppress evidence.

By order dated January 13, 2004, we granted the Commonwealth’s petition for a

rehearing en banc, stayed the mandate of that decision, and reinstated the appeal. Upon

rehearing this case en banc, we affirm Medley’s convictions.
 I. Background

On appeal of a denial of a motion to suppress, we consider the evidence presented below

in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly

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

(1991).

So viewed, the evidence presented during the hearing on Medley’s motion to suppress the

evidence established that on the afternoon of August 17, 2000, State Police Officer C.S. Wade

and several other officers were assigned to monitor southbound traffic at the toll plaza of the

Chesapeake Bay Bridge in Northampton County and to “intercept people smuggling guns and

drugs . . . from the New York area . . . to the Tidewater area.” While looking “for violations on

the vehicles and . . . for any unusual responses or reactions as [occupants] approach[ed] the toll

booth,” Officer Wade observed a 1996 Pontiac Sunfire approach the booth. The car’s license

plate number had a prefix on it that Officer Wade was not “familiar with as being issued over

here on this side of the water,” so he “assumed that this vehicle was from across the bay.”

Officer Wade, who was standing near the toll booth where he could be seen by the driver, looked

into the car and noticed that the driver’s “eyes were bugged out,” “[t]hey were great big and

round.” For that reason, Officer Wade asked one of his fellow officers, Trooper Hawkins, to

check the car “when it came up in his lane of travel.”

When Medley, the driver, stopped to pay the toll, Trooper Hawkins observed that the car

had a “dark window tint” and that there was a “dangling object in the rear-view mirror.” Trooper

Hawkins advised Medley “that his window tint appeared to be too dark under Virginia law and

[that] it was also a violation to have any objects hanging from the mirror that could obstruct your

view.” He then asked Medley to pull over so that he could “talk to him about those violations.”
 When Trooper Hawkins asked Medley for his driver’s license and registration, Medley

said he had no identification. After a female passenger indicated that the automobile was hers

and gave Trooper Hawkins the registration, Trooper Hawkins walked Medley to his car so that

he could “r[u]n him through DMV.” While Trooper Hawkins and Medley waited for the report

concerning Medley’s driving status, Hawkins asked Medley “where he was coming from.”

Medley said he and his passenger intended to drive to New York from Norfolk, but they had had

an argument and were returning to Norfolk. At some point, Trooper Hawkins learned that

Medley’s driver’s license was suspended.

During that time, another officer, Special Agent Wendell, questioned Medley’s female

passenger about her travel. After talking with her, Wendell advised Hawkins as to their

conversation, and the two officers determined that the stories “didn’t match.” Officer Wade,

who had also spoken with Medley’s passenger, then approached Trooper Hawkins’s patrol car

and advised that he was “going to run a K-9 on the vehicle.” Medley’s female passenger

“became very excited, very nervous.”

As Officer Wade guided the dog around the Pontiac, the dog alerted near a rear door.

Based upon the alert, Officer Wade looked inside the car and found, behind the driver’s seat, a

black, semi-transparent plastic bag containing a cereal box. Inside the box, he found

“approximately 250 grams of what [he] believed to be . . . cocaine.”

At that point, Trooper Hawkins handcuffed Medley and left him alone in his patrol car.

Special Agent Wendell handcuffed the passenger and read her the Miranda warnings. Wendell

then, in conjunction with Officer Wade, questioned the passenger again about “her trip up

north.” The passenger stated: Medley promised her $200 for taking him to New York; she

noticed Medley had about $2,500 in a roll of money during the trip; she left the car to go to the

bathroom when they arrived in New York, while Medley was talking with “a bunch of people”;
she and Medley then “rode around for awhile,” but eventually drove back to the same place; she

left the car again and bought a “juice and some gum”; they then “left and came straight back” to

Virginia; she noticed the cereal box when they were driving through Delaware, and Medley told

her “his people gave it to him and not to worry about it.”

After speaking with Medley’s passenger, Special Agent Wendell went to Trooper

Hawkins’s vehicle and read Medley his Miranda rights. When he asked Medley if he understood

those rights, Medley replied that he did. Special Agent Wendell then asked Medley if he wished

to waive his rights and talk with him. Medley responded that “he would talk to [Special Agent

Wendell], but he didn’t want to waive his rights.” Special Agent Wendell testified that the

following then occurred:

For several minutes I continued to talk to Mr. Medley saying I read
him his Miranda rights. I asked him which rights he wished —
that he wanted to invoke, and he said he wanted all of his rights. I
told him that I cannot talk to him because of the third right — you
have the right to talk to a lawyer for advice before we ask you any
questions and to have a lawyer with — excuse me — with you
during questioning; and at that time he stated, I want all my rights,
but I still want to talk to you. I again explained to him, I cannot
talk to you — and I overemphasized that I cannot talk to him at all
without having his waiver of rights; and he said, I don’t want to
waive anything on this. I want this sheet to remain the same —
and this would be the sheet that I marked yes and then no — but I
will talk to you.

Special Agent Wendell testified that he then asked another officer, Sergeant Clark, to join

him. Both officers “tried to explain over and over again to him that if he wishes to enact his

Miranda rights, [they could not] talk to him.” Medley responded that he understood his rights

and said he “did not want to waive his rights, but . . . would talk to [them].” The officers then

told Medley that if he wanted to speak with them, he would have to initiate the conversation.

They then walked away from the patrol car and joined the other officers in searching the Pontiac.
 A few moments later, Trooper Hawkins returned to his vehicle and read Medley his

Miranda rights once again. Medley “wasn’t talking at that point,” and “he wouldn’t say that he

understood his rights.” When Trooper Hawkins asked Medley if he wanted to waive his rights,

Medley “[went] as far as acknowledging his understanding; but he would not say, I waive my

rights.” Trooper Hawkins then “determined, unless [Medley] approached [him] and wanted to

talk to [him] again, [he] wasn’t going to have any more conversation.”

The record is silent as to what occurred immediately thereafter. However, within

approximately thirty minutes after Special Agent Wendell had begun searching the Pontiac,

Trooper Hawkins came to him and said, “[Medley] wants to talk to you.” During the

suppression hearing, Special Agent Wendell testified that the following then occurred:

I then proceeded back to the vehicle and asked Mr. Medley, Do
you want to talk to me? He said, Yes, I want to talk to you.

I again explained to him, if you’re not willing to waive your rights,
I cannot talk to you. He said, I — quote and unquote — Mr.
Medley stated that he could talk to me because she had nothing to
do with the investigation. I then explained to Mr. Medley, I don’t
want to talk to you unless you’re willing to waive your rights; and
he said, I’ll talk to you. I just don’t want anything to be used
against me. I’ll talk to you off record, and I told him that he
cannot talk to me off the record because he invoked his rights.
Again, he consistently told me that he wanted to talk to me; and,
therefore, I began talking to him.

Special Agent Wendell further testified that Medley responded to his “questioning” and

said that his passenger knew nothing, that he was being paid $1,500 for taking “the item” to

Norfolk, that another car was following them to Norfolk, and that he was to deliver the item to

the occupants of the other car in Norfolk.

Medley, a convicted felon, testified that he told all the officers he did not want to waive

his rights and denied telling them he wanted to talk to them. He testified that when he told them

he would not make a statement, he gave them his lawyer’s business card. Medley claimed one of
the officers ripped it while talking to him. He testified that Trooper Hawkins “kept asking

questions” and talked for thirty to forty minutes about waiving his rights. Medley denied making

any statements to Special Agent Wendell about going to New York or making a delivery to the

people in a car following him.

The trial judge denied Medley’s motion to suppress, ruling as follows:

I think he had a right to stop him, and . . . if you believe his
testimony, he didn’t make any statements. So there is nothing to
be suppressed. If you believe the officers’ testimony, he didn’t
waive his rights; but he initiated the conversation. So I would
overrule the motion.

Medley subsequently entered “conditional” pleas of guilty to the charges, purportedly based

upon North Carolina v. Alford, 400 U.S. 25 (1970).1 This appeal followed.

II. Analysis

We begin by recognizing the well-settled maxim that on an appeal of a ruling on a motion

to suppress, “we are bound by the trial court’s findings of historical fact unless ‘plainly wrong’

or without evidence to support them,” McGee v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc), but we review de novo the trial court’s application of defined

legal standards such as probable cause and reasonable suspicion to the particular facts of the

case, Ornelas v. United States, 517 U.S. 690, 699 (1996).

We next note that in the appellant’s brief Medley filed before the panel, the issue Medley

presented is whether, “[t]he trial court erred in dismissing appellant’s motion to suppress the

evidence seized from the vehicle and appellant’s incriminating statement, as the same were

seized in violation of the Fourth, Fifth and Fourteenth Amendments to the United States

Constitution.” However, in an apparent violation of Rule 5A:20(e), Medley’s panel brief

1
The Commonwealth conceded during oral argument that Medley entered his pleas of
guilty upon the condition that he maintain the right to appeal the trial court’s denial of his motion
to suppress. Thus, we assume without here deciding, that Medley properly preserved this appeal
contained no argument or authority suggesting any Fourth Amendment violation. We thus, have

no basis to consider the application of the Fourth Amendment further. See Rule 5A:20(e) (“The

opening brief of appellant shall contain . . . [t]he principles of law, the argument, and the

authorities relating to each question presented.”).

Medley asserted during oral argument that the police conduct at issue here, violated his

“right not to incriminate himself as secured by the Fifth and Fourteenth Amendments.”

Specifically, Medley has contended on appeal (at least implicitly) that police violated his right to

remain silent, as well as his right to counsel under Miranda v. Arizona, 384 U.S. 436 (1966).

Assuming, without here deciding, that Medley’s broad and unfocused question presented was

sufficient to preserve both arguments, we find that the evidence below established police did not

violate Medley’s “right not to incriminate himself as secured by the Fifth and Fourteenth

Amendments.” Therefore, we affirm his convictions.

A.

We first address Medley’s argument that police violated his Miranda right to counsel. An

issue of whether an accused “clearly requested an attorney during a custodial interrogation is a

mixed question of law and fact.” Commonwealth v. Redmond, 264 Va. 321, 326, 568 S.E.2d

695, 697 (2002) (plurality opinion). “‘[T]he 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. at 327, 568

S.E.2d at 698 (quoting United States v. Uribe-Galindo, 990 F.2d 522, 523 (10th Cir. 1993) (other

citation omitted)).

In the appellate brief Medley filed before the panel, Medley cited only Edwards v.

Arizona, 451 U.S. 477 (1981), as authority in support of his position that police violated his

– despite the fact that the trial court’s final order makes no mention of a conditional guilty plea.
rights “under the Fourth, Fifth and Fourteenth Amendments.” In Edwards the United States

Supreme Court recognized that:

In Miranda v. Arizona, [384 U.S. 436 (1966)], the Court
determined that the Fifth and Fourteenth Amendments’ prohibition
against compelled self-incrimination required that custodial
interrogation be preceded by advice to the putative defendant that
he has the right to remain silent and also the right to the presence
of an attorney. 384 U.S., at 479. The Court also indicated the
procedures to be followed subsequent to the warnings. If the
accused indicates that he wishes to remain silent, “the interrogation
must cease.” If he requests counsel, “the interrogation must cease
until an attorney is present.” Id., at 474.

451 U.S. at 481-82.

In order to “prevent police from badgering a defendant into
waiving his previously asserted Miranda rights” and to “protect the
suspect’s ‘desire to deal with the police only through counsel,’” the
United States Supreme Court established the “Edwards rule” as a
“second layer of prophylaxis for the Miranda right to counsel.”
See Davis [v. United States, 512 U.S. 452, 458 (1994)]; McNeil v.
Wisconsin, 501 U.S. 171, 176, 178, 111 S. Ct. 2204, 2208, 2209,
115 L. Ed. 2d 158 (1991); Michigan v. Harvey, 494 U.S. 344, 350,
110 S. Ct. 1176, 1180, 108 L. Ed. 2d 293 (1990).

Quinn v. Commonwealth, 25 Va. App. 702, 710-11, 492 S.E.2d 470, 474-75 (1997).

Specifically, Edwards extended the principles set forth in Miranda “to subsequent

interrogation, holding that, ‘. . . an accused, . . ., having expressed his desire to deal with the

police only through 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.” Commonwealth v. Gregory, 263 Va. 134, 146-47,

557 S.E.2d 715, 722 (2002) (quoting Edwards, 451 U.S. at 484-85). Thus, “[t]he 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.” Id. at 147, 557

S.E.2d at 722 (emphasis added).
 However, “[w]hether the Edwards rule renders a statement inadmissible is determined by

a three-part inquiry.” Quinn, 25 Va. App. at 712, 492 S.E.2d at 475. The first part of that

inquiry calls for a determination of whether “‘the accused actually invoked his right to counsel.’”

Id. (quoting Tipton v. Commonwealth, 18 Va. App. 832, 834, 447 S.E.2d 539, 540 (1994))

(emphasis added). The evidence in the case at bar does not satisfy that first portion of the

analysis.

The United States Supreme Court has “ruled that the test for determining whether the

accused invoked the right to counsel is an objective one.” McDaniel v. Commonwealth, 30

Va. App. 602, 605, 518 S.E.2d 851, 853 (1999) (citing Davis, 512 U.S. at 457-59). Thus, a court

“must determine whether the accused ‘articulate[d] his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances would understand the statement to be

a request for an attorney.’” Id. (quoting Davis, 512 U.S. at 459); see also Gregory, 263 Va. at

147, 557 S.E.2d at 723 (“The Edwards rule does not apply unless the prior interrogation was

custodial and during that custodial interrogation, the suspect clearly and unequivocally invoked

his right to counsel.”).

Here it is clear, as the trial court found, that Medley indicated to police he did not wish to

waive his “rights.” Nevertheless, contrary to Medley’s assertions, such a general refusal to

waive his rights, standing alone, is hardly sufficient to convey to police a clear and unequivocal

request for counsel. As the United States Supreme Court explained in Davis, “[i]nvocation of

the Miranda right to counsel ‘requires, at a minimum, some statement that can reasonably be

construed to be an expression of a desire for the assistance of an attorney.’” 512 U.S. at 459

(quoting McNeil, 501 U.S. at 178).

[T]he suspect must unambiguously request counsel. As we have
observed, “a statement either is such an assertion of the right to
counsel or it is not.” Smith v. Illinois, [469 U.S. 91, 97-98 (1984)]
(brackets and internal quotation marks omitted). . . . Although a
 suspect need not “speak with the discrimination of an Oxford
don,” . . . he must articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request for
an attorney. If the statement fails to meet the requisite level of
clarity, Edwards does not require that the officers stop questioning
the suspect. See Moran v. Burbine, [475 U.S. 412, 433 n.4] (1986)
(“The interrogation must cease until an attorney is present only if
the individual states that he wants an attorney”) (citations and
internal quotation marks omitted).

Id. (emphasis in original). In explanation of the underlying rationale, the Supreme Court stated:

In considering how a suspect must invoke the right to counsel, we
must consider the other side of the Miranda equation: the need for
effective law enforcement. Although the courts ensure compliance
with the Miranda requirements through the exclusionary rule, it is
police officers who must actually decide whether . . . they can
question a suspect. The Edwards rule — questioning must cease if
the suspect asks for a lawyer — provides a bright line that can be
applied by officers in the real world of investigation and
interrogation without unduly hampering the gathering of
information. But if we were to require questioning to cease if a
suspect makes a statement that might be a request for an attorney,
this clarity and ease of application would be lost. Police officers
would be forced to make difficult judgment calls about whether the
suspect in fact wants a lawyer even though he has not said so, with
the threat of suppression if they guess wrong.

Id. at 461.

No clear request for an attorney can reasonably be found in Medley’s broad statements

pertaining to his “rights.” See Eaton v. Commonwealth, 240 Va. 236, 252-53, 397 S.E.2d 385,

395-96 (1990) (“We share the U.S. Supreme Court’s preference for ‘bright-line’ rules for the

guidance of those who must conduct and evaluate custodial interrogations. In further

explication . . . we hold that the Edwards rule is invoked, and that custodial interrogation must

cease, when the accused, having received Miranda warnings and having begun to respond to the

questions of the authorities, ‘has clearly asserted his right to counsel’” (quoting Edwards, 451

U.S. at 485) (emphasis in original)). To the contrary, the most that one could reasonably glean

from Medley’s statements is that he did not wish to speak generally about the drugs found in the
car. See, e.g., Anderson v. Smith, 751 F.2d 96, 101 (2d Cir. 1984) (noting that where an accused

“did not expressly ask for a lawyer,” but indicated he did not wish to waive “these rights,” after

Miranda warnings were read to him, a court will assume “that all that he did was to assert his

right to remain silent”); see also Edwards, 451 U.S. at 484 (noting a distinction between an

invocation of the right to remain silent and the right to counsel stating, “additional safeguards are

necessary when the accused asks for counsel” (emphasis added)). For these reasons, an Edwards

analysis is not appropriate under the circumstances at issue in this case. It is thus clear that

police did not violate Medley’s Miranda right to counsel. Accordingly, we affirm his

convictions on this basis.

B.

Turning to Medley’s claim that police violated his Miranda right to silence, we note first

Miranda recognized that if a suspect “indicates in any manner, at any time prior to or during

questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at

473-74. As previously noted, our standard of review requires us to conduct a de novo review of

the application of the protections afforded by Miranda to the historical facts as found by the trial

court. Burket v. Commonwealth, 248 Va. 596, 611, 450 S.E.2d 124, 132 (1994) (“Whether a

statement is voluntary is ultimately a legal rather than factual question. Subsidiary factual

questions, however, are entitled to a presumption of correctness.” (citations omitted)); Correll v.

Thompson, 63 F.3d 1279, 1290 (4th Cir. 1995). Thus, the issue of whether Medley waived his

rights under Miranda is a mixed question of law and fact, and while we are bound by the facts

and reasonable inferences that flow from those facts as they relate to Medley’s words and

conduct, we are not bound by the legal conclusion of the trial court that Medley “didn’t waive his

rights.” Id.
 Assuming without here deciding that Medley’s statements and conduct were initially

sufficient to equate to a clear and unambiguous assertion of his right to remain silent, we find

that the factual circumstances as found by the trial court plainly reveal that, subsequently, when

Medley reinitiated contact with Special Agent Wendell and insisted on giving a statement

relating to his passenger’s involvement with the drugs, by his own actions, he knowingly,

intelligently and voluntarily waived that right.

Indeed, it is well settled that even if invoked, the Miranda right to silence can “be waived

by the suspect if the waiver is made knowingly and intelligently.” Jackson v. Commonwealth,

266 Va. 423, 432, 587 S.E.2d 532, 540 (2003). In fact, in Michigan v. Mosley, 423 U.S. 96, 102

(1975), the United States Supreme Court expressly acknowledged that “a blanket prohibition

against the taking of voluntary statements or a permanent immunity from further interrogation,

regardless of the circumstances, would transform the Miranda safeguards into wholly irrational

obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to

make informed and intelligent assessments of their interests.” (Emphasis added). Thus, while

[a]n express written or oral statement of waiver of the right to
remain silent or of the right to counsel is usually strong proof of
the validity of that waiver, [it] is not inevitably either necessary or
sufficient to establish waiver. The question is not one of form, but
rather whether the defendant in fact knowingly and voluntarily
waived the rights delineated in the Miranda case. As was
unequivocally said in Miranda, mere silence is not enough. That
does not mean that the defendant’s silence, coupled with an
understanding of his rights and a course of conduct indicating
waiver, may never support a conclusion that a defendant has
waived his rights. The courts must presume that a defendant did
not waive his rights; the prosecution’s burden is great; but in at
least some cases waiver can be clearly inferred from the actions
and words of the person interrogated.

North Carolina v. Butler, 441 U.S. 369, 373 (1979) (emphasis added).

Here, it is clear that police were initially confused as to whether Medley wished to invoke

his right to silence. Indeed, after being read his Miranda rights, Medley told Special Agent
Wendell that he “would talk to [him], but that he didn’t want to waive his rights.” Special Agent

Wendell then explained to Medley that he could not continue to talk to him, “because of the third

right — you have the right to talk to a lawyer for advice before we ask you any questions.”

Medley responded, “I want all my rights, but I still want to talk to you.” Medley stated, “I don’t

want to waive anything on this,” but again stated, “I will talk to you.” After several attempts to

explain the Miranda rights to Medley, Medley continued to claim that he “did not want to waive

his rights, but . . . would talk to [police].” In light of this, police consistently informed Medley

that they could not continue to talk with him because they understood that he had invoked his

rights under Miranda.

However, approximately thirty minutes after Special Agent Wendell left Medley to wait

in the patrol car, Trooper Hawkins approached Wendell and stated, “[Medley] wants to talk to

you.” Special Agent Wendell testified that he went to the patrol car and:

again explained to [Medley], if you’re not willing to waive your
rights, I cannot talk to you. He said, I — quote and unquote —
Mr. Medley stated that he could talk to me because she had
nothing to do with the investigation. I then explained to Medley, I
don’t want to talk to you unless you’re willing to waive your
rights; and he said, I’ll talk to you. I just don’t want anything to be
used against me. I’ll talk to you off record, and I told him that he
cannot talk to me off the record because he invoked his rights.
Again, he consistently told me that he wanted to talk to me; and,
therefore, I began talking to him.

(Emphasis added). This course of conduct clearly and reasonably indicated to Special Agent

Wendell that Medley understood his right to remain silent, understood the fact that “he [had]

invoked his rights,” but wished to waive his previously invoked right to remain silent and speak

to police about his passenger’s involvement with his activities.

Nevertheless, as indicated above, we recognize that:

The inquiry into whether an individual waived effectuation of the
rights conveyed in the Miranda warnings has two distinct
dimensions. [Edwards, 451 U.S. at 482]. First, the relinquishment
 of the right “must have been voluntary in the sense that it was the
product of free and deliberate choice rather than intimidation,
coercion, or deception.” [Moran, 475 U.S. at 421]. Second, “the
waiver must have been made with a full awareness of both the
nature of the right being abandoned and the consequences of the
decision to abandon it. Only if the ‘totality of the circumstances
surrounding the interrogation’ reveal both an uncoerced choice and
the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived.” Id.

United States v. Cristobal, 293 F.3d 134, 139-40 (4th Cir. 2002).

As to the first prong of the analysis - the voluntariness of Medley’s ultimate waiver - the

United States Supreme Court has held “the admissibility of statements obtained after [a] person

in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off

questioning’ was ‘scrupulously honored.’” Mosley, 423 U.S. at 104. “A statement procured in

violation of Mosley is presumed to have been obtained by an involuntary waiver of Fifth

Amendment rights and, therefore, it is inadmissible.” Pugliese v. Commonwealth, 16 Va. App.

82, 88, 428 S.E.2d 16, 21 (1993).

The question of “[w]hether a person’s decision to remain silent has been ‘scrupulously

honored’ requires an independent examination of the circumstances.” Id. “This question is one

of law subject to de novo review; however, the subsidiary factual findings of the [trial] court are

entitled to a presumption of correctness.” Correll, 63 F.3d at 1290 (citing Miller v. Fenton, 474

U.S. 104, 112 (1985)); see also Pugliese, 16 Va. App. at 88, 428 S.E.2d at 21 (“In making this

determination, an appeals court is ‘bound by the trial court’s subsidiary factual findings unless

those findings are plainly wrong.’” (quoting Wilson v. Commonwealth, 13 Va. App. 549, 551,

413 S.E.2d 655, 656 (1992)).

In so reviewing this issue, we must keep in mind that the United States Supreme Court, in

Davis, advised that “when a suspect makes an ambiguous or equivocal statement it will often be

good police practice for the interviewing officers to clarify whether [the suspect] actually wants”
to invoke a specified right. Davis, 512 U.S. at 461. When viewed properly - in the light most

favorable to the Commonwealth as the party prevailing below - the record establishes that the

“good police practice” described in Davis, is all that took place here. Indeed, from the beginning

of their interaction with Medley, the officers here reasonably believed, based upon Medley’s

course of conduct, that he was confused or ambivalent about whether to invoke his right to

remain silent. Moreover, once Medley decided to invoke that right, the officers reasonably

believed that he was confused or ambivalent about whether to waive the right. In fact, credible

evidence in the record suggests that it was only because of Medley’s consistently equivocal and

contradictory conduct that police inquired further of Medley to determine whether he understood

his rights and/or whether he intended to waive them.

Under these circumstances, we find no reason to conclude that the officers failed to

“scrupulously honor” Medley’s right to remain silent. Indeed, there was “nothing coercive or

deceitful” in the officers’ conduct toward Medley – particularly given Medley’s consistently

contradictory statements. See Land v. Commonwealth, 211 Va. 223, 229, 176 S.E.2d 586, 590

(1970). Furthermore, as his dialog with police officers makes clear, there is no question that

Medley was aware of the nature of his right to remain silent and the potential consequences of

abandoning that right.

Thus, by consistently reasserting his intent to communicate with police about the

involvement of his passenger, and by ultimately doing so – despite the numerous warnings given

to him by the officers involved – we find that the officers here reasonably believed, based upon

the totality of Medley’s conduct, that he knowingly, intelligently and voluntarily chose to waive

any previously invoked right to remain silent. See Connecticut v. Barrett, 479 U.S. 523, 529

(1987) (“Miranda gives the defendant a right to choose between speech and silence, and [the

defendant] chose to speak.”).
 For these reasons, we hold that the trial court did not err in denying Medley’s motion to

suppress on these grounds,2 and we thus, affirm his convictions on this basis as well.

Affirmed.

2
In light of this holding, we do not address the Commonwealth’s alternative theory that
any error on the part of the trial court was harmless, given the magnitude of the remaining
evidence against Medley, as well as his pleas of guilty.
Benton, J., with whom Elder, J., joins, dissenting.

When a defendant files a motion to suppress a statement and alleges a Miranda violation,

the Commonwealth bears the burden of proving that the defendant waived his Miranda rights.

Tague v. Louisiana, 444 U.S. 469, 470 (1980) (per curiam) (citing Miranda v. Arizona, 384 U.S.

436, 475 (1966)). The evidence in this case is demonstrable that Karing Bethel Medley did not

waive his Miranda rights and that the Commonwealth failed in its burden to prove he did.

Indeed, when, as in this case, a trial judge finds that the defendant “didn’t waive his rights,” we

are bound by that finding of historical fact unless it is “plainly wrong” or “without evidence to

support [it].” McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en

banc). See also Chawla v. BurgerBusters, Inc., 255 Va. 616, 622-23, 499 S.E.2d 829, 833

(1998) (defining waiver); Stewart v. Commonwealth, 245 Va. 222, 231, 427 S.E.2d 394, 401

(1993) (holding that waiver is a question of fact). I therefore dissent.

I.

Medley unambiguously invoked his Miranda rights when police began interrogating him.

Even after repeated police attempts, Medley refused to waive those rights.

The evidence proved that Medley was in custody in a police officer’s vehicle and in

handcuffs when Special Agent Wendell began interrogating him. After Special Agent Wendell

read Miranda rights to Medley, he asked Medley if he understood those rights. Medley said he

did. When Special Agent Wendell asked Medley if he wished to waive those rights and talk with

him, Medley responded that “he would talk to [Special Agent Wendell], but he didn’t want to

waive his rights.”

Although the record does not contain the precise language . . .
[used to convey] the Miranda rights, those rights typically are
worded to inform an accused as follows:
 MIRANDA WARNING

1. You have the right to remain silent.

2. Anything you say can and will be used against you in court.

3. You have the right to talk to a lawyer and have him present
while you are being questioned.

4. If you cannot afford to hire a lawyer, one will be appointed to
represent you, without cost, before any questioning, if you desire
one.

McDaniel v. Commonwealth, 30 Va. App. 602, 606, 518 S.E.2d 851, 853 (1999) (en banc). See

also Harrison v. Commonwealth, 244 Va. 576, 578, 423 S.E.2d 160, 161 (1992). When Special

Agent Wendell continued to talk to Medley and “asked him which rights . . . he wanted to

invoke,” Medley “said he wanted all of his rights.” Given this context in which the officer had

just advised Medley of these four specific rights, nothing is ambiguous about Medley’s response.

He invoked each of the four rights as itemized.

Rather than accepting Medley’s invocation of his “rights” and ceasing the interrogation,

Special Agent Wendell continued to interrogate Medley. He testified that the following

occurred:

For several minutes I continued to talk to Mr. Medley saying I read
him his Miranda rights. I asked him which rights he wished -- that
he wanted to invoke, and he said he wanted all of his rights. I told
him that I cannot talk to him because of the third right -- you have
the right to talk to a lawyer for advice before we ask you any
questions and to have a lawyer with -- excuse me -- with you
during questioning; and at that time he stated, I want all my rights,
but I still want to talk to you. I again explained to him, I cannot
talk to you -- and I overemphasized that I cannot talk to him at all
without having his waiver of rights; and he said, I don’t want to
waive anything on this. I want this sheet to remain the same -- and
this would be the sheet that I marked yes and then no -- but I will
talk to you.
 I acknowledge the Supreme Court’s recognition that “good practice suggests that the

police should attempt to clarify ambiguous statements,” Midkiff v. Commonwealth, 250 Va.

262, 266, 462 S.E.2d 112, 115 (1995) (citing Davis v. United States, 512 U.S. 452, 460-61

(1994)), however, the facts in this case show that the encounters between Medley and the police

went beyond mere clarification. Medley’s statement that “he wanted all of his rights” was not

ambiguous. Indeed, Special Agent Wendell specifically acknowledged at trial that he understood

Medley invoked his right to an attorney and did not want to talk without a lawyer. Although he

knew Medley had not waived his rights, he continued his efforts to elicit a waiver.

To assist in obtaining a waiver, Special Agent Wendell asked Sergeant Clark to join him

and talk to Medley. He described their extensive efforts as follows:

At that particular point in time after minutes and numerous
times trying to explain about I cannot talk to him if he does not
wish to waive them, I brought Sergeant Clark in. Sergeant Clark
and I both tried to explain over and over again to him that if he
wishes to enact his Miranda rights, I cannot talk to him; and at that
time Sergeant Clark also advised him of that. From that
standpoint, Sergeant Clark and I closed the door -- I closed the
door myself; and Sergeant Clark advised him that if he wants to
talk to us, he’s going to have to initiate the conversation for us to
continue to talk to him.

Sergeant Clark confirmed that, after he joined Special Agent Wendell and again

explained the Miranda rights to Medley, Medley responded that he understood his rights and said

he “did not want to waive his rights, but . . . would talk to us.” Sergeant Clark testified that after

trying three more times, he told Medley that Medley would have to initiate the conversation

otherwise they would not talk to him anymore. Special Agent Wendell and Sergeant Clark then

left Medley alone in the vehicle. At that point, both officers knew that Medley refused to waive

his Miranda rights.

Special Agent Wendell joined the other officers who were searching the passenger’s

automobile, and he told Trooper Hawkins that Medley “didn’t give a statement.” Nevertheless,
after only a momentary cessation, Trooper Hawkins entered the vehicle and renewed the attempt

to get a statement. Trooper Hawkins, the third officer to violate Medley’s election to terminate

questioning, began by repeating for at least the third time, the Miranda rights as follows:

You have the right to remain silent. Anything you say can and
will be used against you in a court of law. You have the right to
talk to a lawyer and have him present while you’re being
questioned. If you cannot afford to hire a lawyer, one will be
appointed to represent you before any questioning if you wish one;
and then I always go into the waiver. Do you understand each of
these rights I’ve explained to you? And having these rights in
mind, do you wish to talk to us now? He would never go into with
me --

Q: Don’t paraphrase or describe. Tell me exactly what he said to
you.

A: I don’t know verbatim how he responded to that; but I know it
was to the point that he did not want to talk to me at that point, so I
cut my conversation off then.

Q: You understood then that Mr. Medley did not waive his
Miranda rights?

A: With me, he did not.

Trooper Hawkins further explained as follows:

I sat back with Mr. Medley for a little while after his Miranda
warnings were read to him. Special Agent Wendell had read them,
and I had read them again, and he wasn’t talking at that point when
I was with him. He just said that everything -- when I read them to
him, he would say -- he wouldn’t say that he understood his rights.
He wouldn’t go that far with me.

* * * * * * *

When I talked to him, he -- he wouldn’t -- when I asked him the
question about will you waive your rights, he would never say I
waive my rights. He would go as far as acknowledging his
understanding; but he would not say, I waive my rights.

He testified that he then “determined, unless [Medley] approached [him] and wanted to talk to

[him] again, [he] wasn’t going to have any more conversation.”
 Special Agent Wendell testified that, within a half an hour of his departure from seeking

a statement from Medley, Trooper Hawkins came to him and said, “he wants to talk to you.”

The record contains no testimony from Trooper Hawkins about the circumstances which gave

rise to the conversation with Medley and which led Trooper Hawkins to seek out Special Agent

Wendell. The record clearly establishes, however, that when Special Agent Wendell returned to

the vehicle to re-interrogate Medley, less than a half hour had lapsed from his initial efforts.

Thus, during a half-hour period Medley had been given at least three sets of Miranda warnings

and subjected to interrogation by Trooper Hawkins, Sergeant Clark, and twice by Special Agent

Wendell. At no time did Medley say he was waiving his Miranda rights. Indeed, Medley said at

all times and on each reading of his Miranda rights that he would not waive his rights.

Special Agent Wendell testified that the following occurred.

I then proceeded back to the vehicle and asked Mr. Medley, Do
you want to talk to me? He said, Yes, I want to talk to you.

I again explained to him, if you’re not willing to waive your
rights, I cannot talk to you. He said, I -- quote and unquote -- Mr.
Medley stated that he could talk to me because [the passenger] had
nothing to do with the investigation. I then explained to Mr.
Medley, I don’t want to talk to you unless you’re willing to waive
your rights; and he said, I’ll talk to you. I just don’t want anything
to be used against me. I’ll talk to you off record, and I told him
that he cannot talk to me off the record because he invoked his
rights. Again, he consistently told me that he wanted to talk to me;
and, therefore, I began talking to him.

Denying Medley’s motion to suppress his statements, the trial judge made the following

ruling:

I think [the officers] had a right to stop him, and . . . if you
believe [Medley’s] testimony, he didn’t make any statements. So
there is nothing to be suppressed. If you believe the officer’s
testimony, he didn’t waive his rights; but he initiated the
conversation. So I would overrule the motion.
 II.

I would hold that the Commonwealth failed to prove Medley waived his Miranda rights.

I would further hold that the conduct of the officers violated both Medley’s right to remain silent

and his right to have the questioning ceased until he had consulted an attorney.

The majority is correct that Medley never specifically mentioned his “right to counsel.”

Special Agent Wendell did testify, however, that he told Medley he could “not talk to him

because of the third right -- you have the right to talk to a lawyer for advice before we ask you

any questions and to have a lawyer with . . . you during questioning.” Special Agent Wendell

also testified that Medley responded to that comment by saying, “I want all my rights.”

Therefore, Special Agent Wendell, who was the first officer to read Miranda rights to Medley,

was aware that Medley did not want to waive his right to talk to his attorney before being

interrogated. In view of this circumstance, Special Agent Wendell and any other reasonably

trained officer certainly “‘would understand the statement to be a request for an attorney.’”

McDaniel, 30 Va. App. at 605, 518 S.E.2d at 853 (citation omitted). The record further reflects

that after Sergeant Clark and Trooper Hawkins read Miranda rights to Medley, Special Agent

Wendell returned to the vehicle and again questioned Medley. He was fully aware of Medley’s

earlier refusal to waive his right to an attorney, and he initiated the interrogation with full

knowledge that the other two officers had conversed with Medley and were unsuccessful in their

attempts to obtain Medley’s waiver.

The prosecution may not use statements, whether exculpatory
or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates . . . [that] the waiver [of the right]
is made voluntarily, knowingly and intelligently. If . . . he
indicates in any manner and at any stage of the process that he
wishes to consult with an attorney before speaking there can be no
questioning. Likewise, if the individual is alone and indicates in
any manner that he does not wish to be interrogated, the police
may not question him. The mere fact that he may have answered
 some questions or volunteered some statements on his own does
not deprive him of the right to refrain from answering any further
inquiries until he has consulted with an attorney and thereafter
consents to be questioned.

Miranda, 384 U.S. at 444-45 (emphasis added). The violation in this case is patent.

III.

The trial judge’s assertion that Medley “initiated the conversation” ignores the evidence

which shows that the police failed to “scrupulously honor” Medley’s request to remain silent and

his repeated assertion that “he wanted all his rights.” Noting that Edwards v. Arizona, 451 U.S.

477 (1981), has been misapprehended, the Supreme Court of the United States explained its

ruling as follows:

We did not there hold that the “initiation” of a conversation by a
defendant such as respondent would amount to a waiver of a
previously invoked right to counsel; we held that after the right to
counsel had been asserted by an accused, further interrogation of
the accused should not take place “unless the accused himself
initiates further communication, exchanges, or conversations with
the police.” 451 U.S., at 485. This was in effect a prophylactic
rule, designed to protect an accused in police custody from being
badgered by police officers in the manner in which the defendant
in Edwards was. . . .

But even if a conversation taking place after the accused has
“expressed his desire to deal with the police only through counsel,”
is initiated by the accused, where reinterrogation follows, the
burden remains upon the prosecution to show that subsequent
events indicated a waiver of the Fifth Amendment right to have
counsel present during the interrogation. . . .

* * * * * * *

Thus, the . . . Court of Appeals was wrong in thinking that an
“initiation” of a conversation or discussion by an accused not only
satisfied the Edwards rule, but ex proprio vigore sufficed to show a
waiver of the previously asserted right to counsel. The inquiries
are separate, and clarity of application is not gained by melding
them together.

Oregon v. Bradshaw, 462 U.S. 1039, 1044-45 (1983) (citations omitted).
 Medley argued on brief, as he did at trial, that the trial judge must determine: “First . . .

whether the accused unequivocally invoked his right to counsel. Second, . . . whether the

accused rather than the authorities initiated further discussions . . . . Third, if the accused did

initiate further discussions . . . [,] whether the accused knowingly and intelligently waived the

previously invoked right to counsel.” He argues, and the Supreme Court has held, the Fifth

Amendment right against self-incrimination protects an accused as follows:

“Once [Miranda] warnings have been given, the subsequent
procedure is clear. If the individual indicates in any manner, at any
time prior to or during questioning, that he wishes to remain silent,
the interrogation must cease. At this point he has shown that he
intends to exercise his Fifth Amendment privilege; any statement
taken after the person invokes his privilege cannot be other than
the product of compulsion, subtle or otherwise. Without the right
to cut off questioning, the setting of in-custody interrogation
operates on the individual to overcome free choice in producing a
statement after the privilege has been once invoked.” 384 U.S. at
473-74.

* * * * * * *

A reasonable and faithful interpretation of the Miranda opinion
must rest on the intention of the Court in that case to adopt “fully
effective means . . . to notify the person of his right of silence and
to assure that the exercise of the right will be scrupulously
honored . . . .” 384 U.S. at 479. The critical safeguard identified
in the passage at issue is a person’s “right to cut off questioning.”
Id. at 474. Through the exercise of his option to terminate
questioning he can control the time at which questioning occurs,
the subjects discussed, and the duration of the interrogation. The
requirement that law enforcement authorities must respect a
person’s exercise of that option counteracts the coercive pressures
of the custodial setting. We therefore conclude that the
admissibility of statements obtained after the person in custody has
decided to remain silent depends under Miranda on whether his
“right to cut off questioning” was “scrupulously honored.”

Michigan v. Mosley, 423 U.S. 96, 100-04 (1975) (footnotes omitted).

The evidence clearly establishes that the officers made repeated efforts to elicit a waiver

after Medley said he understood his rights and did not want to waive any of them. In addition,
no evidence proved that Medley initiated contact, communication, or exchange with Sergeant

Clark or Trooper Hawkins. Special Agent Wendell brought Sergeant Clark to question Medley

even after Medley said he would not waive his rights. Trooper Hawkins testified that he initiated

his exchange with Medley after Special Agent Wendell said Medley “didn’t give a statement.”

Indeed, all of the officers testified that Medley communicated to them that he did not wish to

waive his rights. Each officer who questioned him within that half-hour period also knew

Medley previously had received Miranda warnings. Thus, the record clearly established that

Medley’s right to not be further questioned was not “scrupulously honored.” Mosley, 423 U.S.

at 104. This pattern of repeating Miranda warnings to Medley and then questioning him about

his intent represents a “continuation of custodial interrogation after a momentary cessation,”

which the Supreme Court has recognized as conduct that “would clearly frustrate the purposes of

Miranda by allowing repeated rounds of questioning to undermine the will of the person being

questioned.” Mosley, 423 U.S. at 102.

Although the evidence does not prove Medley initiated the conversation with the officers,

even if he had the Supreme Court has held that such an initiation does not act as a waiver.

Bradshaw, 462 U.S. at 1044-45. The trial judge was in error when he assumed that it did

because Bradshaw requires a two-pronged analysis. Once the trial judge found that Medley

initiated conversation, he then was required to determine if Medley knowingly and voluntarily

waived his Miranda rights. There was no such showing.

Moreover, even if Medley implicitly waived his Miranda rights by talking with police,

demonstrating such an “implied waiver” is a much harder standard for the Commonwealth to

meet. An implied waiver requires a “clear and unmistakable proof of the intention to waive such

right, for the essence of waiver is voluntary choice.” Chawla, 255 Va. at 623, 499 S.E.2d at 833

(emphasis added). This higher standard to show an implied waiver is in keeping with the
Edwards prophylactic function: to keep police from badgering a suspect once he has invoked his

rights. As the United States Supreme Court has emphasized, once an accused has ‘“expressed

his own view that he is not competent to deal with the authorities without legal advice, a later

decision at the authorities’ insistence to make a statement without counsel’s presence may

properly be viewed with skepticism.’” Arizona v. Roberson, 486 U.S. 675, 681 (1988) (quoting

Mosley, 423 U.S. at 110, n.2).

Finding a confession inadmissible, the Supreme Court recently reiterated the explanation

it gave in Miranda, “that the ‘voluntariness doctrine . . . encompasses all interrogation practices

which are likely to exert such pressure upon an individual as to disable him from making a free

and rational choice.’” Missouri v. Seibert, 124 S. Ct. 2601, 2607 (2004) (quoting Miranda, 384

U.S. at 464-65). The Court noted that “it would be absurd to think that mere recitation of the

[warning] litany suffices to satisfy Miranda in every conceivable circumstance,” id. at 2610, and

the Court warned against approving a “police strategy adapted to undermine the Miranda

warnings.” Id. at 2612. As the Court noted in Seibert, some officers are now trained “to

continue questioning after the suspect invokes his rights.” Id. at 2609 n.2.

This training is reflected in the reported cases involving deliberate
questioning after invocation of Miranda rights. See, e.g.,
California Attorneys for Criminal Justice v. Butts, 195 F.3d 1039,
1042-1044 (CA9 2000); Henry v. Kernan, 197 F.3d 1021, 1026
(CA9 1999); People v. Neal, 31 Cal. 4th 63, 68, 72 P.3d 280, 282
(2003); People v. Peevy, 17 Cal. 4th 1184, 1189, 953 P.2d 1212,
1215 (1998). Scholars have noted the growing trend of such
practices. See, e.g., Leo, Questioning the Relevance of Miranda in
the Twenty-First Century, 99 Mich. L. Rev. 1000, 1010 (2001);
Weisselberg, In the Stationhouse After Dickerson, 99 Mich. L.
Rev. 1121, 1123-1154 (2001).

Id.

This case presents just another example of an interrogation strategy designed to

undermine Miranda. Simply put, the officers in this case sought by their repeated approaches to
undermine Medley’s resolve not to waive his Miranda rights after he declared that “he wanted all

of his rights.” Within less than a half hour, three officers “persisted in repeated efforts to wear

down [Medley’s] resistance and make him change his mind.” Mosley, 423 U.S. at 105-06. In

view of Medley’s express intention to exercise his Fifth Amendment privilege, the statement

taken from him after officers questioned him on four occasions within a half hour “cannot be

other than the product of compulsion, subtle or otherwise.” Miranda, 384 U.S. at 474. In view

of the Supreme Court’s warning in Miranda “that ‘illegitimate and unconstitutional practices get

their first footing . . . by silent approaches and slight deviations from legal modes of procedure,’”

384 U.S. at 459 (quoting Boyd v. United States, 116 U.S. 616, 635 (1886)), I would hold that the

persistent questioning on four occasions within a half hour by officers who read Miranda rights

to Medley on at least three of those occasions demonstrated that Medley’s refusal to waive his

rights was not “scrupulously honored.”

IV.

For these reasons, I would hold that the trial judge erred in denying the motion to

suppress Medley’s statements and I would reverse the convictions and remand for a new trial.
 Tuesday 13th

January, 2004.

Karing Bethel Medley, Appellant,

against Record No. 1576-02-1
Circuit Court Nos. CR00000145-00 and CR00000145-01

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner,
Frank, Humphreys, Clements, Felton and Kelsey

On December 23, 2003 came the appellee, by the Attorney General of Virginia, and filed

a petition praying that the Court set aside the judgment rendered herein on December 9, 2003,

and grant a rehearing en banc thereof.

On consideration whereof, the petition for rehearing en banc is granted, the mandate

entered herein on December 9, 2003 is stayed pending the decision of the Court en banc, and the

appeal is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule 5A:35. The appellee shall attach as

an addendum to the opening brief upon rehearing en banc a copy of the opinion previously

rendered by the Court in this matter. It is further ordered that the appellee shall file with the clerk

of this Court twelve additional copies of the appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk
 COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Hodges
Argued at Chesapeake, Virginia

KARING BETHEL MEDLEY
MEMORANDUM OPINION* BY
v. Record No. 1576-02-1 JUDGE JAMES W. BENTON, JR.
DECEMBER 9, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Glen A. Tyler, Judge

William P. Robinson, Jr. (Robinson, Neeley & Anderson, on brief),
for appellant.

Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.

Pursuant to Code § 19.2-254 and Alford v. North Carolina, 400 U.S. 25 (1970), Karing

Bethel Medley conditionally pled guilty to the charges of possession of cocaine with the intent to

distribute and of transporting one ounce or more of cocaine into the Commonwealth with the intent

to distribute. On appeal, he contends the trial judge erred in denying his motion to suppress

statements he made to the state police. Based on the trial judge’s finding that Medley did not waive

his rights, we reverse the convictions.

I.

At the suppression hearing, State Police Officer Wade testified that he and other officers

were assigned to monitor southbound traffic at the toll plaza of the Chesapeake Bay Bridge in

Northampton County and to “intercept people smuggling guns and drugs . . . from the New York

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
- 29 -
area . . . to the Tidewater area.” While looking “for violations on the vehicles and . . . for any

unusual responses or reactions [by the occupants] as they approach[ed] the toll booth,” Officer

Wade noticed the lettering on a license plate of an automobile approaching the toll booth. Based

upon his knowledge that “certain letters are issued from the Eastern Shore area” for Virginia license

plates, Officer Wade “assumed that this vehicle was from across the bay.” He testified that he

watched the driver approach the toll plaza where the officers stood and noticed that the driver’s

“eyes . . . were great big and round.” He testified that these factors caused him to ask Trooper

Hawkins to check the automobile.

When Medley, the driver, stopped to pay the toll, Trooper Hawkins told him “that his

window tint appeared to be too dark under Virginia law and [that] it was also a violation to have any

objects hanging from the mirror that could obstruct your view.” Trooper Hawkins then directed

Medley to stop his automobile at the side of the highway. When he asked for Medley’s driver’s

license and registration, Medley said he had no identification. After the passenger indicated that the

automobile was hers and gave Trooper Hawkins the registration, Trooper Hawkins walked Medley

to his vehicle and contacted the dispatcher. While Trooper Hawkins and Medley waited for the

report concerning Medley’s driving status, Trooper Hawkins asked Medley about his travel

destination. Medley said he and the passenger had intended to drive to New York from Norfolk, but

they had an argument and were returning to Norfolk.

Special Agent Wendell questioned the passenger about her travel. After talking with her,

Special Agent Wendell went to Trooper Hawkins, who was still sitting in his vehicle with Medley,

and told him about his conversation with the passenger. Trooper Hawkins testified that he and

Special Agent Wendell determined that the passenger’s and Medley’s replies were inconsistent.

Officer Wade also talked to the passenger and told Trooper Hawkins her version of their travel,

which contradicted Medley’s version.

- 30 -
 Officer Wade testified that he explained to the passenger that they intended to use a drug

detection dog around the outside of her automobile because of her nervous actions and the

inconsistent statements made by her and Medley. As Officer Wade guided the dog around the

automobile, the dog alerted near a rear door. Based upon the alert, Officer Wade looked in the

automobile and found, behind the driver’s seat, a black plastic bag containing a box of cereal.

Inside the box, he found “approximately 250 grams of what [he] believed to be . . . cocaine.”

Trooper Hawkins handcuffed Medley, and Special Agent Wendell handcuffed the passenger. Over

Medley’s objection, Officer Wade testified about the following statements the passenger made: that

Medley promised her $200 for taking him to New York, that she noticed Medley had about $2,500

in a roll of money, that she left the automobile to go to the bathroom in New York while Medley

was talking with some people, that she noticed the cereal box when they were driving through

Delaware, and that Medley told her “his people gave it to him and not to worry about it.”

Officer Wade also testified that neither Medley nor the passenger was charged with any

violations concerning the tinted window or the object on the rearview mirror. He further testified as

follows:

Q: So this was nothing more than a pretextual stop, was it?

A: As far as I’m concerned, you’re correct. Yes, sir.

After Trooper Hawkins put handcuffs on Medley, he left Medley in his vehicle and went to

the automobile that was being searched. Special Agent Wendell went to Trooper Hawkins’s vehicle

and read Medley his Miranda rights. Special Agent Wendell testified he asked Medley if he

understood those rights. Medley said he did. When Special Agent Wendell asked Medley if he

wished to waive his rights and talk with him, Medley responded that “he would talk to [Special

Agent Wendell], but he didn’t want to waive his rights.” Special Agent Wendell testified that the

following then occurred:

- 31 -
 For several minutes I continued to talk to Mr. Medley
saying I read him his Miranda rights. I asked him which rights he
wished -- that he wanted to invoke, and he said he wanted all of his
rights. I told him that I cannot talk to him because of the third
right -- you have the right to talk to a lawyer for advice before we
ask you any questions and to have a lawyer with -- excuse me --
with you during questioning; and at that time he stated, I want all
my rights, but I still want to talk to you. I again explained to him, I
cannot talk to you -- and I overemphasized that I cannot talk to him
at all without having his waiver of rights; and he said, I don’t want
to waive anything on this. I want this sheet to remain the same --
and this would be the sheet that I marked yes and then no -- but I
will talk to you.

Special Agent Wendell testified that he then asked Sergeant Clark to join him and talk to

Medley.

At that particular point in time after minutes and numerous
times trying to explain about I cannot talk to him if he does not
wish to waive them, I brought Sergeant Clark in. Sergeant Clark
and I both tried to explain over and over again to him that if he
wishes to enact his Miranda rights, I cannot talk to him; and at that
time Sergeant Clark also advised him of that. From that
standpoint, Sergeant Clark and I closed the door -- I closed the
door myself; and Sergeant Clark advised him that if he wants to
talk to us, he’s going to have to initiate the conversation for us to
continue to talk to him.

Sergeant Clark confirmed that after he joined Special Agent Wendell and again explained

the Miranda rights to Medley, Medley responded that he understood his rights and said he “did

not want to waive his rights, but . . . would talk to us.” Sergeant Clark testified that after trying

three more times, he told Medley that Medley would have to initiate the conversation otherwise

they would not talk to him anymore. Special Agent Wendell and Sergeant Clark then left

Medley alone in the vehicle. Special Agent Wendell joined the other officers who were

searching the passenger’s automobile.

Trooper Hawkins testified that Special Agent Wendell told him Medley did not give a

statement. Trooper Hawkins testified that he then returned to his vehicle and read Miranda rights

to Medley again. He explained those events as follows:

- 32 -
 I sat back with Mr. Medley for a little while after his
Miranda warnings were read to him. Special Agent Wendell had
read them, and I had read them again, and he wasn’t talking at that
point when I was with him. He just said that everything -- when I
read them to him, he would say -- he wouldn’t say that he
understood his rights. He wouldn’t go that far with me.

* * * * * * *

When I talked to him, he -- he wouldn’t -- when I asked
him the question about will you waive your rights, he would never
say I waive my rights. He would go as far as acknowledging his
understanding; but he would not say, I waive my rights.

Trooper Hawkins testified that he then “determined, unless [Medley] approached [him] and

wanted to talk to [him] again, [he] wasn’t going to have any more conversation.”

Special Agent Wendell testified that within a half an hour after he began searching the

automobile, Trooper Hawkins came to him and said, “he wants to talk to you.” Special Agent

Wendell testified that the following occurred.

I then proceeded back to the vehicle and asked Mr. Medley,
Do you want to talk to me? He said, Yes, I want to talk to you.

I again explained to him, if you’re not willing to waive
your rights, I cannot talk to you. He said, I -- quote and unquote --
Mr. Medley stated that he could talk to me because she had
nothing to do with the investigation. I then explained to Mr.
Medley, I don’t want to talk to you unless you’re willing to waive
your rights; and he said, I’ll talk to you. I just don’t want anything
to be used against me. I’ll talk to you off record, and I told him
that he cannot talk to me off the record because he invoked his
rights. Again, he consistently told me that he wanted to talk to me;
and, therefore, I began talking to him.

Special Agent Wendell testified Medley responded to his questioning and said that the passenger

knew nothing, that he was being paid $1,500 for taking “the item” to Norfolk, that another car

was following them to Norfolk, and that he was to deliver the item to the occupants of the other

car in Norfolk.

Medley, a convicted felon, testified that he told all the officers he did not want to waive

his rights and denied telling them he wanted to talk to them. He testified that when he told them
- 33 -
he was not making statements, he gave them his lawyer’s business card. He said one of the

officers ripped it while talking to him. He testified that Trooper Hawkins “kept asking

questions” and talked for thirty to forty minutes about waiving his rights. Medley further denied

making any statements to Special Agent Wendell about going to New York or making a delivery

to the people in a car following him.

The trial judge denied the motion to suppress, ruling as follows:

I think he had a right to stop him, and . . . if you believe his
testimony, he didn’t make any statements. So there is nothing to
be suppressed. If you believe the officers’ testimony, he didn’t
waive his rights; but he initiated the conversation. So I would
overrule the motion.

This appeal challenges this ruling.

II.

At trial, Medley’s attorney argued that Medley “did not waive his Miranda rights and that

any statement attributed to him would, therefore, be inadmissible.” At trial and on appeal

Medley cited Edwards v. Arizona, 451 U.S. 477 (1981), as authority supporting his position.

The Commonwealth contends Edwards is inapplicable because Medley never invoked his right

to counsel.

The United States Supreme Court held as follows in Edwards:

[W]hen an accused has invoked his right to have counsel present
during custodial interrogation, 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. We further hold that an accused, . . . , having
expressed his desire to deal with the police only through 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.

451 U.S. at 484-85. “The Edwards rule does not apply unless the prior interrogation was

custodial and during that custodial interrogation, the suspect clearly and unequivocally invoked

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his right to counsel.” Commonwealth v. Gregory, 263 Va. 134, 147, 557 S.E.2d 715, 723

(2002).

The record establishes that Medley was in custody and consistently indicated he did not

waive his rights on each occasion when the officers read Miranda rights to him. Although

Medley testified that he gave one of the officers his lawyer’s card, Special Agent Wendell denied

that Medley did so. The trial judge believed the officer’s testimony.

The Commonwealth correctly notes that no officer testified that Medley specifically

mentioned his “right to counsel.” Special Agent Wendell did testify, however, that he told

Medley he could not “talk to him because of the third right -- you have the right to talk to a

lawyer for advice before we ask you any questions and to have a lawyer with . . . you during

questioning.” Special Agent Wendell also testified that Medley responded to that comment by

saying, “I want all my rights.” Therefore, Special Agent Wendell, who was the first officer to

read Miranda rights to Medley, was aware that Medley did not waive his right to talk to his

attorney before being interrogated. In view of this circumstance, Special Agent Wendell

certainly “‘would understand the statement to be a request for an attorney.’” McDaniel v.

Commonwealth, 30 Va. App. 602, 605, 518 S.E.2d 851, 853 (1999) (citation omitted). The

record further reflects that after Trooper Hawkins and Sergeant Clark read Miranda rights to

Medley, Special Agent Wendell returned to the vehicle and again questioned Medley. He was

fully aware of Medley’s earlier refusal to waive his right to an attorney, and he initiated the

interrogation with full knowledge that the other two officers had conversed with Medley.

Because Medley never specifically mentioned “his right to counsel,” Gregory, 263 Va. at

147, 557 S.E.2d at 723, and because Medley generally indicated he was not waiving any of his

rights, we believe the following extended excerpt from Michigan v. Mosley, 423 U.S. 96, 100-04

(1975), guides our resolution of this issue:

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Resolution of the question turns almost entirely on the interpretation of a
single passage in the Miranda [v. Arizona, 384 U.S. 436 (1966),] opinion . . . :

“Once warnings have been given, the subsequent procedure
is clear. If the individual indicates in any manner, at any time prior
to or during questioning, that he wishes to remain silent, the
interrogation must cease. At this point he has shown that he
intends to exercise his Fifth Amendment privilege; any statement
taken after the person invokes his privilege cannot be other than
the product of compulsion, subtle or otherwise. Without the right
to cut off questioning, the setting of in-custody interrogation
operates on the individual to overcome free choice in producing a
statement after the privilege has been once invoked.” 384 U.S., at
473-474.

This passage states that “the interrogation must cease”
when the person in custody indicates that “he wishes to remain
silent.” It does not state under what circumstances, if any, a
resumption of questioning is permissible. The passage could be
literally read to mean that a person who has invoked his “right to
silence” can never again be subjected to custodial interrogation by
any police officer at any time or place on any subject. Another
possible construction of the passage would characterize “any
statement taken after the person invokes his privilege” as “the
product of compulsion” and would therefore mandate its exclusion
from evidence, even if it were volunteered by the person in custody
without any further interrogation whatever. Or the passage could
be interpreted to require only the immediate cessation of
questioning, and to permit a resumption of interrogation after a
momentary respite.

It is evident that any of these possible literal interpretations
would lead to absurd and unintended results. To permit the
continuation of custodial interrogation after a momentary cessation
would clearly frustrate the purposes of Miranda by allowing
repeated rounds of questioning to undermine the will of the person
being questioned. At the other extreme, a blanket prohibition
against the taking of voluntary statements or a permanent
immunity from further interrogation, regardless of the
circumstances, would transform the Miranda safeguards into
wholly irrational obstacles to legitimate police investigative
activity, and deprive suspects of an opportunity to make informed
and intelligent assessments of their interests. Clearly, therefore,
neither this passage nor any other passage in the Miranda opinion
can sensibly be read to create a per se proscription of indefinite
duration upon any further questioning by any police officer on any
subject, once the person in custody has indicated a desire to remain
silent.

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 A reasonable and faithful interpretation of the Miranda
opinion must rest on the intention of the Court in that case to adopt
“fully effective means . . . to notify the person of his right of
silence and to assure that the exercise of the right will be
scrupulously honored. . . .” 384 U.S., at 479. The critical
safeguard identified in the passage at issue is a person’s “right to
cut off questioning.” Id., at 474. Through the exercise of his
option to terminate questioning he can control the time at which
questioning occurs, the subjects discussed, and the duration of the
interrogation. The requirement that law enforcement authorities
must respect a person’s exercise of that option counteracts the
coercive pressures of the custodial setting. We therefore conclude
that the admissibility of statements obtained after the person in
custody has decided to remain silent depends under Miranda on
whether his “right to cut off questioning” was “scrupulously
honored.”

(Footnotes omitted).

The evidence proved that Medley was in custody in the officer’s vehicle and in handcuffs

when Special Agent Wendell interrogated him. After Special Agent Wendell read Miranda

rights to Medley, Medley told him “he didn’t want to waive his rights.” When Special Agent

Wendell continued to talk to Medley and “asked him which rights . . . he wanted to invoke,”

Medley “said he wanted all of his rights.” Rather than accepting Medley’s invocation of his

“rights” and ceasing the interrogation, Special Agent Wendell brought Sergeant Clark to assist

him. They both talked to Medley extensively but Medley refused to waive his rights. When they

left Medley alone in the vehicle, both were aware that Medley expressed his wish not to waive

his Miranda rights.

Special Agent Wendell told Trooper Hawkins that Medley “didn’t give a statement.”

Nevertheless, after only a momentary cessation, Trooper Hawkins entered the vehicle, read

Miranda rights again to Medley, and renewed the attempt to get a statement. Thus, Trooper

Hawkins violated Medley’s option to terminate questioning. He began by repeating for at least

the third time, the Miranda rights.

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 A: You have the right to remain silent. Anything you say can and
will be used against you in a court of law. You have the right to
talk to a lawyer and have him present while you’re being
questioned. If you cannot afford to hire a lawyer, one will be
appointed to represent you before any questioning if you wish one;
and then I always go into the waiver. Do you understand each of
these rights I’ve explained to you? And having these rights in
mind, do you wish to talk to us now? He would never go into with
me --

Q: Don’t paraphrase or describe. Tell me exactly what he said to
you.

A: I don’t know verbatim how he responded to that; but I know it
was to the point that he did not want to talk to me at that point, so I
cut my conversation off then.

Q: You understood then that Mr. Medley did not waive his
Miranda rights?

A: With me, he did not.

Special Agent Wendell testified that within a half hour of his departure from seeking a

statement from Medley, Trooper Hawkins said Medley wanted to speak to Special Agent

Wendell. The record contains no testimony from Trooper Hawkins about the circumstances

giving rise to the conversation with Medley that led him to seek Special Agent Wendell. The

record clearly establishes, however, that when Special Agent Wendell returned to the vehicle to

re-interrogate Medley, less than a half hour had lapsed from his initial efforts. Thus, during a

half-hour period Medley had been given at least three sets of Miranda warnings and subject to

interrogation by Trooper Hawkins, Sergeant Clark, and twice by Special Agent Wendell. At no

time did Medley say he was waiving his Miranda rights. Indeed, he said at all times and on each

reading of Miranda that he would not waive his rights.

The evidence supports the trial judge’s finding that Medley “didn’t waive his rights.”

The Fifth Amendment right against self-incrimination protects an accused as follows:

[T]he prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates . . . [that] the waiver [of the right]
- 38 -
 is made voluntarily, knowingly and intelligently. If . . . he
indicates in any manner and at any stage of the process that he
wishes to consult with an attorney before speaking there can be no
questioning. Likewise, if the individual is alone and indicates in
any manner that he does not wish to be interrogated, the police
may not question him. The mere fact that he may have answered
some questions or volunteered some statements on his own does
not deprive him of the right to refrain from answering any further
inquiries until he has consulted with an attorney and thereafter
consents to be questioned.

Miranda, 384 U.S. at 444-45.

The evidence clearly establishes that the officers made repeated efforts to elicit a waiver

after Medley said he understood his rights and did not want to waive any of them. In addition,

no evidence proved that Medley initiated contact, communication, or exchange with Sergeant

Clark or Trooper Hawkins. Special Agent Wendell brought in Sergeant Clark even after Medley

said he would not waive his rights. Trooper Hawkins testified that he initiated his exchange with

Medley after Special Agent Wendell said Medley “didn’t give a statement.” The pattern of

repeating Miranda warnings to Medley and then questioning him about his intent represents a

“continuation of custodial interrogation after a momentary cessation,” which the Supreme Court

has recognized as conduct that “would clearly frustrate the purposes of Miranda by allowing

repeated rounds of questioning to undermine the will of the person being questioned.” Mosley,

423 U.S. at 102. All of the officers testified that Medley communicated to them that he did not

wish to waive his rights. Each officer who questioned him within that half-hour period also

knew Medley previously had received Miranda warnings. Thus, the record clearly established

that Medley’s right to not be further questioned was not “scrupulously honored.” Mosley, 423

U.S. at 104.

Simply put, the officers sought by their repeated approaches to undermine Medley’s

resolve not to waive his Miranda rights. Within less than a half hour, four officers “persist[ed] in

repeated efforts to wear down [Medley’s] resistance and make him change his mind.” Mosley,
- 39 -
423 U.S. at 105-06. In view of Medley’s express intention to exercise his Fifth Amendment

privilege, the statement taken from him after officers questioned him on four occasions within a

half hour “cannot be other than the product of compulsion, subtle or otherwise.” Miranda, 384

U.S. at 474. Noting the Supreme Court’s warning in Miranda “that ‘illegitimate and

unconstitutional practices get their first footing . . . by silent approaches and slight deviations

from legal modes of procedure.’” 384 U.S. at 459 (quoting Boyd v. United States, 116 U.S. 616,

635 (1886)), we hold that the persistent questioning on four occasions within a half hour by

officers who read Miranda rights to Medley on at least three of those occasions demonstrated

that Medley’s refusal to waive his rights was not “scrupulously honored.” Accordingly, we

reverse the order denying the motion to suppress Medley’s statements, and we remand for a new

trial if the Commonwealth be so advised.

Reversed and remanded.

- 40 -
Humphreys, J., concurring.

I concur with the majority in the judgment, but write separately because I do not believe

the record in this case demonstrates that the officers failed to “scrupulously honor[]” Medley’s

refusal to waive his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). See Michigan

v. Mosley, 423 U.S. 96, 100-04 (1975). I also disagree with the majority’s implicit suggestion

that Medley affirmatively invoked his right to an attorney.

Miranda recognized that if a suspect “indicates in any manner, at any time prior to or

during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384

U.S. at 473-74. As the majority recognizes, the United States Supreme Court has held that “the

admissibility of statements obtained after [a] person in custody has decided to remain silent

depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously

honored.’” Mosley, 423 U.S. at 104. However, the Supreme Court of Virginia has recognized

that “Miranda should not be read so strictly as to require the police to accept as conclusive any

statement, no matter how ambiguous, as a sign that the suspect desires to cut off questioning.”

Lamb v. Commonwealth, 217 Va. 307, 312, 227 S.E.2d 737, 741 (1976); Midkiff v.

Commonwealth, 250 Va. 262, 267, 462 S.E.2d 112, 115 (1995). Indeed, in Mosley, the Court

acknowledged that “a blanket prohibition against the taking of voluntary statements or a

permanent immunity from further interrogation, regardless of the circumstances, would

transform the Miranda safeguards into wholly irrational obstacles to legitimate police

investigative activity, and deprive suspects of an opportunity to make informed and intelligent

assessments of their interests.” Mosley, 423 U.S. at 102 (emphasis added). Thus, while

[a]n express written or oral statement of waiver of the right to
remain silent or of the right to counsel is usually strong proof of
the validity of that waiver, [it] is not inevitably either necessary or
sufficient to establish waiver. The question is not one of form, but
rather whether the defendant in fact knowingly and voluntarily
waived the rights delineated in the Miranda case. As was
- 41 -
 unequivocally said in Miranda, mere silence is not enough. That
does not mean that the defendant’s silence, coupled with an
understanding of his rights and a course of conduct indicating
waiver, may never support a conclusion that a defendant has
waived his rights. The courts must presume that a defendant did
not waive his rights; the prosecution’s burden is great; but in at
least some cases waiver can be clearly inferred from the actions
and words of the person interrogated.

North Carolina v. Butler, 441 U.S. 369, 373 (1979) (emphasis added).

Here, after being read his Miranda rights, Medley told Special Agent Wendell that he

“would talk to [him], but that he didn’t want to waive his rights.” Special Agent Wendell then

explained to Medley that he could not continue to talk to him, “because of the third right – you

have the right to talk to a lawyer for advice before we ask you any questions.” Medley

responded, “I want all my rights, but I still want to talk to you.” Medley stated, “I don’t want to

waive anything on this,” but again stated “I will talk to you.” After several attempts to explain

the Miranda rights to Medley, Medley continued to claim that he “did not want to waive his

rights, but . . . would talk to [police].” Each time, police informed Medley that they could not

continue to talk with him because he had invoked his rights under Miranda.

Approximately thirty minutes later, Trooper Hawkins approached Special Agent Wendell

and stated, “[Medley] wants to talk to you.” Special Agent Wendell testified that he again

explained to Medley that he could not talk with him if he was “not willing to waive [his] rights.”

Medley responded that “he could talk to [Wendell] because [the passenger] had nothing to do

with the investigation.” Medley stated, “I’ll talk to you. I just don’t want anything to be used

against me. I’ll talk to you off record.” Special Agent Wendell quite properly explained that

Medley could not talk with him “off the record because he invoked his rights.” Medley again

“consistently told [Wendell] that he wanted to talk to [him].”

In my opinion, just as a suspect’s silence may be equivocal, his invocation of unspecified

“rights,” coupled with a course of conduct clearly indicating that he wishes to talk to police, may
- 42 -
reflect the suspect’s indecision, ambivalence, or even calculation about whether to cooperate – as

opposed to a clear understanding of his rights, and a clear invocation of his right to remain silent.

See Midkiff, 250 Va. at 267-68, 462 S.E.2d at 115-16 (noting that statements such as “I’ll be

honest with you, I’m scared to say anything without talking to a lawyer,” and “I don’t got to

answer that, Dick, you know,” did not establish “a desire to cease all questioning”); see also

Burket v. Commonwealth, 248 Va. 596, 610, 450 S.E.2d 124, 131-32 (1994) (holding no

violation of Miranda where defendant stated “I just don’t think that I should say anything” and “I

need somebody that I can talk to,” but elected to proceed with the interrogation and failed to

exercise his right to terminate questioning); see also United States v. Johnson, 529 F.2d 581, 584

(8th Cir. 1976) (holding no reversible error in admitting statement where police failed to inquire

further to determine if suspect’s “seemingly contradictory” actions in refusing to sign a waiver

but agreeing to answer questions “was the product of intelligence and understanding or of

ignorance and confusion”); Works v. State, 362 N.E.2d 144, 152 (Ind. 1977) (DeBruler, J.,

dissenting) (noting that “[i]n refusing to sign the waiver and in indicating a willingness to speak,

appellant was taking contradictory positions. Under such circumstances the police should have

made further inquiry to determine whether appellant’s decision to relinquish the right to remain

silent was being made out of ignorance and confusion. Without such an inquiry, no conclusion

could reasonably be reached that appellant had intelligently and voluntarily relinquished the right

to remain silent.”).

In my view, the facts here support the conclusion that police “scrupulously honored”

Medley’s right to remain silent. In fact, credible evidence in the record suggests that it was only

because of Medley’s conduct that police inquired further of Medley to determine whether he

understood his right to remain silent, and/or was ambivalent as to whether to invoke it or to

waive it.

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 Nevertheless, the parties – both below and on appeal – argue this issue in terms of

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

In order to “prevent police from badgering a defendant into
waiving his previously asserted Miranda rights” and to “protect the
suspect’s ‘desire to deal with the police only through counsel,’” the
United States Supreme Court established the “Edwards rule” as a
“second layer of prophylaxis for the Miranda right to counsel.”
See Davis [v. United States, 512 U.S. 452, 458 (1994)]; McNeil v.
Wisconsin, 501 U.S. 171, 176, 178, 111 S. Ct. 2204, 2208, 2209,
115 L. Ed. 2d 158 (1991); Michigan v. Harvey, 494 U.S. 344, 350,
110 S. Ct. 1176, 1180, 108 L. Ed. 2d 293 (1990). Pursuant to
Edwards and its progeny, once the defendant invokes his Miranda
right to counsel, all police-initiated interrogation regarding any
criminal investigation must cease unless the defendant’s counsel is
present at the time of questioning. See Minnick v. Mississippi, 498
U.S. 146, 153, 111 S. Ct. 486, 491, 112 L. Ed. 2d 489 (1990);
Arizona v. Roberson, 486 U.S. 675, 683, 108 S. Ct. 2093, 2099,
100 L. Ed. 2d 704 (1988); Edwards, 451 U.S. at 484-85, 101 S. Ct.
at 1885; see also Jackson v. Commonwealth, 14 Va. App. 414,
416, 417 S.E.2d 5, 6-7 (1992). If the police initiate interrogation
of a defendant after he has invoked his Miranda right to counsel
and before his counsel is present, “a valid waiver of this right
cannot be established . . . even if he has been advised of his rights.”
Edwards, 451 U.S. at 484, 101 S. Ct. at 1884-85.

Quinn v. Commonwealth, 25 Va. App. 702, 710-11, 492 S.E.2d 470, 474-75 (1997).

Whether the Edwards rule renders a statement inadmissible is
determined by a three-part inquiry. First, the trial court “must
determine whether the accused actually invoked his right to
counsel” and whether the defendant remained in continuous
custody from the time he or she invoked this right to the time of
the statement. Second, if 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
defendant or attended by his lawyer. Third, if the first two parts of
the inquiry are met, the trial court may admit the statement if it
determines that the defendant thereafter “knowingly and
intelligently waived the right he had invoked.”

Id. at 712, 492 S.E.2d at 475 (quoting Smith v. Illinois, 469 U.S. 91, 96 (1984)) (other citations

omitted).

- 44 -
 In the case at bar, the trial court held “[Medley] didn’t waive his rights; but he initiated

the conversation. So I would overrule the motion [to suppress].” It is clear from the record that

Medley did not, affirmatively or otherwise, unequivocally invoke his right to an attorney. Thus,

an Edwards analysis was never triggered and was not appropriate then nor is such an analysis

appropriate now. See Commonwealth v. Gregory, 263 Va. 134, 147, 557 S.E.2d 715, 723 (2002)

(“The Edwards rule does not apply unless the prior interrogation was custodial and during that

custodial interrogation, the suspect clearly and unequivocally invoked his right to counsel.”).

Indeed, the only question to be answered on this record is whether the police questioned Medley

in violation of his Miranda rights.

The trial court specifically found that Medley did not waive his rights. While it is well

settled that “[a] defendant’s waiver of his Miranda rights is valid only if the waiver is made

knowingly, voluntarily and intelligently . . . [and] [w]hether a statement is voluntary is ultimately

a legal rather than factual question, [s]ubsidiary factual questions . . . are entitled to a

presumption of correctness.” Gray v. Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157, 163

(1987) (citations omitted). Here, the trial court concluded factually that Medley “didn’t waive

his rights.” Accordingly, contrary to the approach taken by the majority, there is no need to

determine the legal issues of either the voluntariness of Medley’s statement, or the applicability

of Edwards. I therefore disagree with the majority’s analysis concerning the police conduct at

issue here, but I am bound to concur in its judgment because of the trial court’s factual finding

that Medley never explicitly or implicitly waived any of his rights under Miranda.

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