COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Senior Judge Cole 

Argued by Teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 0265-97-4 JUDGE ROSEMARIE ANNUNZIATA 

 JULY 15, 1997 

MOUNCEY FERGUSON, JR. 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

James H. Chamblin, Judge 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellant. 

 Rodney G. Leffler (Timothy B. Hyland; Delmara 

F. Bayliss; Leffler, Hyland & Thompson, on 

brief), for appellee. 

 Mouncey Ferguson, Jr. is charged with possession of 

marijuana with intent to distribute. Ferguson filed a motion to 

suppress certain statements he made to the police during the 

search of his home. Following an evidentiary hearing, the trial 

court granted Ferguson's motion in part. The Commonwealth 

appeals the suppression order pursuant to Code § 19.2-398. We 

find that Ferguson was not in custody for purposes of Miranda and 

reverse the trial court's suppression order. 

 On appeal from a trial court's decision to suppress 

evidence, this Court views the evidence in the light most 

favorable to the prevailing party. O'Toole v. Commonwealth, 20 

Va. App. 540, 541, 458 S.E.2d 595, 596 (1995). 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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 On the evening in question, Ferguson returned home to find 

police officers searching his house. Deputy Beaver met Ferguson 

at the driveway and escorted him to Investigator Pratt, who was 

standing outside the house. Pratt told Ferguson what was going 

on, read him the search warrant and gave him Miranda warnings. 

Pratt and Beaver believed that Ferguson had invoked his right to 

counsel when he inquired whether he could call his lawyer. Pratt 

conveyed his belief to the other officers on the scene and 

instructed them not to question Ferguson. 

 Ferguson returned with Beaver to the driveway area where 

Beaver allowed Ferguson to make a call from a telephone in his 

car. Pratt had refused to allow Ferguson to enter the house, 

intending to wait until the officers conducting the search had 

secured an area in which Ferguson could be placed. After about 

an hour, Pratt allowed Ferguson to enter a first floor room of 

the house which the officers had finished searching. Deputy 

Finney, who had relieved Deputy Beaver, supervised Ferguson for 

the next two hours while the search continued, waiting with 

Ferguson in the living room and escorting him to the bathroom and 

elsewhere to smoke. During that time, the officers brought 

snacks to Ferguson and prepared his dinner, although, as Pratt 

testified, Ferguson was not free to leave. 

 Investigator Garis, assigned to search the rooms on the 

first floor of the house, completed his search and remained on 

the first floor while another officer collected evidence. Garis 
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and Ferguson then engaged in discourse, the substance of which 

was the impetus for Ferguson's motion to suppress. 

 Following the search, Ferguson was arrested for possession 

of marijuana with intent to distribute. 

 The trial court found that "Ferguson was in custody for 

Miranda purposes when he arrived at his house and was told that 

he must remain with an officer." "A person in Ferguson's 

position," the court found, "would have then reasonably perceived 

that he was not free to leave." The court suppressed statements 

made by Ferguson during his discourse with Garis, having found 

Ferguson had invoked his right to counsel and that Garis had 

posed the functional equivalent of an investigative question. 

 The trial court's finding that Ferguson was in custody for 

Miranda purposes is a mixed question of law and fact which is, 

ultimately, reviewable on appeal. Thompson v. Keohane, __ U.S. 

__, __, 116 S. Ct. 457, 465 (1995). 

 The officers in the present case were justified in detaining 

Ferguson while they executed the search of his home. See

Michigan v. Summers, 452 U.S. 692, 705 (1982). Contrary to the 

trial court's conclusion, that "Ferguson was in custody for 

Miranda purposes when he arrived at his house and was told that 

he must remain with an officer," "custody" for purposes of 

Miranda does not result ipso facto from the detention of a 

suspect during the execution of a search of the suspect's home. 
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See id.1

 "`In determining whether an individual was in custody, a 

court must examine all of the circumstances . . . but "the 

ultimate inquiry is simply whether there [was] a `formal arrest 

or restraint on freedom of movement' of the degree associated 

with a formal arrest."'" Novak v. Commonwealth, 20 Va. App. 373, 

385, 457 S.E.2d 402, 407 (1995) (citations omitted). The issue 

is whether "the objective circumstances would lead a reasonable 

person to believe he was under arrest, thereby subjecting him or 

her to pressure impairing the free exercise of the privilege 

against self-incrimination." Cherry v. Commonwealth, 14 Va. App. 

135, 139, 415 S.E.2d 242, 244 (1992). 

 Here, Ferguson remained on the premises of his own house for 

the duration of his detention. While a number of police officers 

occupied the scene, Ferguson was supervised by only one officer. 

 At no time was Ferguson physically restrained by the officer or 

handcuffed, and the officers brought Ferguson dinner and 

permitted him to use the telephone in his car and to move about 

his house. The evidence established that Ferguson was not free 

to leave his home and that he was given Miranda warnings by the 

police. In view of the totality of the circumstances, however, 

we believe that Ferguson was not placed under formal arrest nor 

 

 1This is not to suggest, however, that the execution of a 

search warrant renders, ipso facto, such a detention 

"non-custodial" for purposes of Miranda. See Wass v. 

Commonwealth, 5 Va. App. 27, 33-35, 359 S.E.2d 836, 839-41 

(1987). 
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was his freedom of movement restrained to the degree associated 

with a formal arrest. 

 The purposes of the safeguards prescribed by 

Miranda are to ensure that the police do not 

coerce or trick captive suspects into 

confessing, to relieve the "`inherently 

compelling pressures'" generated by the 

custodial setting itself, "`which work to 

undermine the individual's will to resist'" 

. . . . 

May v. Commonwealth, 3 Va. App. 348, 354-55, 349 S.E.2d 428, 431 

(1986) (quoting Berkemer v. McCarty, 468 U.S. 420, 433 (1984)). 

Such concerns are simply not implicated by the facts of the 

present case. We find that Ferguson was not subject to 

"custodial" interrogation and that he made his statements 

voluntarily. Accordingly, the trial court should not have 

suppressed them. 

 The trial court's order is reversed. 

Reversed.