COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Petty and Senior Judge Willis
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY
v. Record No. 1932-06-1 JUDGE ROBERT P. FRANK
DECEMBER 28, 2006
CARL L. DESEI
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Alice T. Armstrong, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on briefs), for appellant.
Charles B. Lustig (Lawrence H. Woodward, Jr.; Shuttleworth,
Ruloff, Giordano & Swain, P.C., on brief), for appellee.
Pursuant to Code § 19.2-398, the Commonwealth appeals the judgment of the trial court
granting Carl Desei’s motion to suppress his statements to the police. The Commonwealth contends
the Child Protective Services (CPS) worker’s actions were not the “functional equivalent” of
interrogation designed to elicit incriminating statements by Desei. Alternatively, the
Commonwealth argues that it was Desei, and not government authorities, who initiated the
exchange that resulted in Desei’s incriminating statements. For the reasons stated, we reverse the
judgment of the trial court and remand for further proceedings.
BACKGROUND
Detective Neives of the Virginia Beach Police Department arrested Desei on one charge of
taking indecent liberties with a minor, in violation of Code § 18.2-370(A)(1), and two charges of
taking indecent liberties with a minor, in violation of Code § 18.2-370(A)(3). At the time of his
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
arrest, Neives read Desei the warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Desei
responded that he “wanted his attorney.” Neives contacted Desei’s attorney, who told Neives not to
speak to his client.
Neives, accompanied by Virginia Beach Department of Human Services CPS workers
Megan Revis and Kristin Kovak,1 took Desei to central processing for booking. Desei appeared
before a magistrate, who denied him bond.
While Neives was in the magistrate’s office completing paperwork to process Desei in the
jail, Revis approached Desei and introduced herself. She gave Desei a pamphlet entitled “Virginia
Cases About Children and Their Families.” Revis completed the last page of the pamphlet, filling
in Desei’s name, the allegations, and the name of the victim. She also completed the appropriate
blanks with her name, agency, and telephone number.
The pamphlet advises the victim’s family and the alleged perpetrator, inter alia, of the
investigative procedures for a CPS complaint, the disposition of CPS reports, the procedure for
appealing a CPS finding, and the right to review the report. Revis characterized the meeting with
Desei as “a very routine procedure” mandated by department policy.2 Revis testified that she did
not ask Desei any questions during this meeting.
1
At the time of Desei’s arrest, Revis was training Kovak to be a social worker with CPS.
2
Code § 63.2-1516.01 provides, in part:
The local department shall, at the initial time of contact with the
person subject to a child abuse and neglect investigation, advise
such person of the complaints or allegations made against the
person, in a manner that is consistent with laws protecting the
rights of the person making the report or complaint.
Further, the Virginia Administrative Code, 22 VAC 40-705-80 (2006), dealing with the
Department of Social Services and Child Protective Services, requires, in relevant part:
B. During the course of the investigation, the child protective
services (CPS) worker shall make and record in writing in the state
automated system the following contacts and observations. When
any of these contacts or observations is not made, the CPS worker
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She also advised Desei of the name of the victim and that he had the right to speak with
Revis about the allegations. She gave Desei her phone number and “explained to him if he wanted
to talk to me, that was how he could reach me.” Revis also presented Desei with a “protective
agreement,” which is an agreement for Desei not to have any contact with the victim. Desei signed
the agreement. Revis testified:
While I was explaining [the protective agreement] to him, he
began to ask questions about [R.M.], who was the alleged victim.
How was he doing? What was going to happen to [R.M.]? Telling
me how much he cared for [R.M.] and I explained to him that
[R.M.] would have to go to therapy because -- that [R.M.] had
disclosed that he had been harmed, and he wanted to know what
that entailed, and I explained to him what that entailed -- about
validation for victims is important in sexual abuse. In the
meantime, Mr. Neives was filling out paperwork, because he had
already -- [Desei] was not going home that night.
Revis reiterated that if Desei wanted to speak to her he could call her. Revis told Desei that, if he
wanted her to talk only to his attorney, he must sign a release allowing her to share information
with Desei’s attorney.
Revis testified that as they were “leaving the jail house . . . [Desei said] wait, wait, wait.
Don’t leave. I want to talk to you.” She stated:
As we were leaving, he asked us to talk to us. He was reminded by
-- a couple times he tried to talk to Detective Neives. He kept
shall record in writing why the specific contact or observation was
not made.
* * * * * * *
2. The child protective services (CPS) worker shall conduct a
face-to-face interview with the alleged abuser and/or neglector.
a. The CPS worker shall inform the alleged abuser and/or
neglector of his right to tape record any communication pursuant to
§ 63.2-1516 of the Code of Virginia.
b. The local department shall provide the necessary equipment
in order to tape record the interview and retain a copy of the tape
for the record.
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telling him, I cannot talk to you; and then when we were leaving
and he asked to talk to us, Detective Neives reminded him, as I
reminded him, that he didn’t -- he had a lawyer who told him not
to talk to us; and he said, No, he wanted to. For [R.M.’s] sake, he
wanted to talk to us.
Neives corroborated the testimony of Revis. Neives stated that while Revis was explaining
the CPS process to him, Desei began to ask questions about the victim. Neives advised Desei that
they could not talk to him about the incident because he had invoked his right to counsel. Desei
persisted in asking questions, and Neives again told Desei that if he wanted to talk to them, he
would have to waive his right to his attorney. Desei indicated that he wished to waive his rights.
Neives contacted a Commonwealth’s attorney, explaining the situation to him, and had someone
bring him a Miranda rights waiver form. Revis retrieved a tape recorder from her car in order to
record the interview. Approximately 15-20 minutes elapsed between Desei’s first indication that
he wished to waive his rights and the beginning of the taped interview.
At the outset of the interview, Desei was again advised of his Miranda rights. Desei
received two waiver forms, one provided by Neives and one provided by Revis. Desei initialed
by each of the rights as it was explained to him, and signed the bottom of both forms. Neives
and Revis both testified that they did not promise Desei anything in exchange for his statements
about the incident.
In granting the motion to suppress, the trial court found Revis to be a state actor who
engaged in the “functional equivalent” of interrogation. The trial court determined that Revis
initiated the contact with appellant “concerning the allegations against him.” The trial court
concluded in its written opinion:
The statements made by Revis to Desei were not mandated by
either Virginia statute . . . or Virginia Department of Social
Services, Child Protective Services, regulation . . . indeed, these
words and actions on the part of this state actor are not normally
attendant to arrest and custody and a reasonable observer would
view Revis [sic] statements as reasonably likely to and designed to
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elicit an incriminating response from the suspect. Therefore, these
statements must be suppressed as unlawfully obtained because the
suspect did not re-initiate the conversation following the
invocation of his Fifth Amendment rights.
This appeal follows.
ANALYSIS
The Commonwealth maintains that Revis had a legitimate reason, mandated by the Code
of Virginia and by CPS administrative regulations, for approaching Desei and that her actions
were similar to routine booking procedures. The Commonwealth argues that merely advising
Desei of his statutory and procedural rights in a CPS investigation is not the “functional
equivalent” of interrogation. Alternatively, the Commonwealth contends that Desei reinitiated
contact with Revis and Neives after they terminated their discussion with him.
On appeal from a trial court’s denial of a motion to suppress, the burden is on the
appellant to show that the trial court’s decision constituted reversible error. See Stanley v.
Commonwealth, 16 Va. App. 873, 874, 433 S.E.2d 512, 513 (1993). We view the evidence in
the light most favorable to the prevailing party, granting to it all reasonable inferences fairly
deducible therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991). We review the trial court’s findings of historical fact only for “clear error,” but we
review de novo the trial court’s application of defined legal standards to the particular facts of a
case. See Shears v. Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996); see also
Ornelas v. United States, 517 U.S. 690, 699 (1996).
The facts here are not in dispute. Thus, we determine de novo the issues before us.
Included among the safeguards established in Miranda v. Arizona, 384 U.S. 436 (1966),
is the right of a suspect to have counsel present at any custodial interrogation and to terminate
the interrogation by invoking this right. See Edwards v. Arizona, 451 U.S. 477, 485-86 (1981);
Miranda, 384 U.S. at 469, 475. “[A]n accused . . . , having expressed his desire to deal with the
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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.” Edwards, 451 U.S. at 484-85.
Only if the accused initiates further “communication, exchanges, or conversations with
the police,” and only if those communications result in the accused changing his or her mind and
freely and voluntarily waiving the right to counsel, may the police resume interrogation without
violating the Edwards rule. Arizona v. Roberson, 486 U.S. 675, 682 (1988).
Once an accused asserts his or her right to counsel, subsequent
waiver of that right is not sufficient to make admissible any
incriminating statements thereafter obtained, even if investigators
have re-Mirandized the accused, unless the statements are initiated
by the defendant and shown to be based on a knowing, intelligent,
and voluntary waiver.
Giles v. Commonwealth, 28 Va. App. 527, 531, 507 S.E.2d 102, 105 (1998). The
Commonwealth bears the burden of proving, by a preponderance of the evidence, that the
defendant’s waiver of counsel was voluntary, knowing, and intelligent. Colorado v. Connelly,
479 U.S. 157, 168 (1986).
In evaluating the admissibility of a statement under the Edwards rule, we apply a
three-part analysis.
First, the trial court must determine whether the accused
“unequivocally” invoked his or her right to counsel. Second, the
trial court must determine whether the accused, rather than the
authorities, initiated further discussions or meetings with the
police. Third, if the accused did initiate further discussions or
conversations with police, the trial court must then ascertain
whether the accused knowingly and intelligently waived the
previously invoked right to counsel.
Giles, 28 Va. App. at 532, 507 S.E.2d at 105. Because the Commonwealth concedes that Desei
properly invoked his right to counsel, the first element of the Edwards inquiry is not at issue
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here. Thus, we determine de novo whether Desei initiated the discussion that resulted in his
statements to Neives and Revis.
To make such a determination, we must establish whether Desei’s statements
“represent[ed] a desire . . . to open up a more generalized discussion relating directly or
indirectly to the investigation.” Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983). “[I]nquiries
or statements, by either an accused or a police officer, relating to routine incidents of the
custodial relationship, will not generally ‘initiate’ a conversation.” Id.
The trial court held that, when Revis introduced herself to Desei and explained the
procedures of the CPS investigation to him, this was the “functional equivalent” of an
interrogation by Revis. The trial court found that Revis initiated the discussion by approaching
Desei and that no statute authorized Revis to talk to Desei once he invoked his right to counsel.3
Thus, the trial court ruled that, by initiating an interrogation of Desei, Revis had violated the
Edwards rule and Desei’s statements were suppressed.4
However, an examination of the record reveals that Desei made no incriminating
statements during the initial conversation with Revis. Revis introduced herself to Desei,
explained the CPS procedures by going over a pamphlet she provided to Desei, and reviewed the
contents of the “protective agreement” with Desei. At that time, Desei asked Revis how the
victim was doing, asked what could happen to the victim, and stated that he cared about the
victim. Desei inquired as to what therapy would entail for the victim, and Revis responded that
“validation” for the victim would be important. Revis concluded their conversation by advising
3
Because of our holding today, we need not decide whether Revis had statutory authority
to talk to Desei once he invoked his right to counsel.
4
As the trial court found that the Commonwealth could not satisfy the second prong of
the Edwards analysis, the trial court never made a determination as to the third prong, whether
Desei knowingly and intelligently waived his previously invoked right to counsel.
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Desei that he could contact her at the number she had provided on the CPS pamphlet if he had
any questions for her. The interview ceased when Revis and Neives began to leave the jail.
At this point, Desei had made no statements to Revis or Neives that were incriminating.
Because there were no statements to suppress as a result of this exchange, we need not address
whether Revis’s conduct during the first conversation was the “functional equivalent” of
interrogation. 5 See Wilson v. Commonwealth, 45 Va. App. 193, 206, 609 S.E.2d 612, 618
(2005) (ruling that the court need not decide whether the officer’s conduct in administering field
sobriety tests violated the Fourth Amendment; the accused refused to submit to the tests, so there
was no evidence that resulted from the officer’s conduct to suppress); see also People v. Kinnard,
467 N.E.2d 886, 887 (N.Y. 1984) (holding that, where police officers unlawfully continued to
question the accused after he had invoked his Miranda rights, this did not affect his later
spontaneous confession, as the accused made no incriminating statements during the first
interview, officers ended that interview, and the accused later initiated contact by indicating that
he wanted to make a statement).
Clearly, Neives and Revis terminated their contact with Desei when they began to leave
the jail. Desei recognized this termination, as he asked them not to leave because he wanted to
talk to them. Neives repeatedly advised Desei that he could not talk to him without an attorney,
yet Desei insisted on speaking with Neives and Revis without his attorney present. By persisting
in his requests to talk to them, Desei reinitiated the contact with authorities that led to his
incriminating statements. See Bradshaw, 462 U.S. at 1045-46 (holding that the accused, after
invoking his right to counsel, reopened the dialogue with police officers by inquiring, “Well,
what is going to happen to me now?”); King v. Commonwealth, 243 Va. 353, 362, 416 S.E.2d
5
On remand, the trial court may consider the effect of Revis’s contact with Desei on the
voluntariness of Desei’s waiver of his Miranda rights.
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669, 673 (1992) (finding that the accused initiated the exchange with officers after invoking his
right to counsel by asking why they were gathering evidence and by stating, “if you got
questions, just ask me”); Foster v. Commonwealth, 8 Va. App. 167, 173-74, 380 S.E.2d 12,
15-16 (1989) (holding that the accused initiated the conversation with officers after invoking his
right to counsel by continuing to assert his intent to talk to officers “no matter what his attorney
advised”).
Therefore, we find that Desei initiated the contact with Neives and Revis that resulted in
his incriminating statements.
Because the trial court found that the government had initiated the contact with Desei, the
trial court never reached the third prong of the Edwards analysis, namely whether Desei
knowingly and intelligently waived his previously invoked right to counsel. See Quinn v.
Commonwealth, 25 Va. App. 702, 714, 492 S.E.2d 470, 476 (1997) (holding that, because
meeting was initiated by authorities after the accused had invoked his right to counsel, the
Commonwealth was precluded from proving that a valid waiver of his rights occurred at that
meeting). This is a question of fact that must be resolved by the trial court, based on the totality
of the circumstances. See Harrison v. Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160, 163
(1992) (holding that “the inquiry whether a waiver of Miranda rights was made knowingly and
intelligently is a question of fact” based upon the totality of the circumstances that must be
determined by the trial court). Thus, we must remand this case to the trial court for a
determination of whether Desei, having initiated the dialogue with Revis and Neives, knowingly
and intelligently waived his previously invoked right to counsel.
CONCLUSION
We conclude the trial court erred in finding that the government initiated the contact with
Desei and in granting Desei’s motion to suppress. We reverse the judgment of the trial court and
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remand for a determination of whether Desei knowingly and intelligently waived his previously
invoked right to counsel.
Reversed and remanded.
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