COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata, and Overton 

Argued at Richmond, Virginia 

NEAL NATHANIEL CARROLL 

 MEMORANDUM OPINION* BY 

v. Record No. 2353-95-2 JUDGE NELSON T. OVERTON 

 FEBRUARY 25, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Robert N. Johnson (Anne M. Johnson; Derek E. 

Leake; Robert N. and Anne M. Johnson, Inc., 

on briefs), for appellant. 

 Eugene Murphy, Assistant Attorney General 

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

brief), for appellee. 

 Neal Nathaniel Carroll appeals his conviction for possession 

of cocaine with the intent to distribute in violation of Code 

§ 18.2-248. He contends that the trial court erroneously 

admitted (1) the cocaine found in his jacket and (2) statements 

he made during the search. We affirm the decision of the lower 

court as to the first issue, but reverse as to the second and 

remand for a new trial. 

 On January 31, 1995, the Drug and Firearm Strike Force of 

the Richmond Police Department executed a search warrant for 

cocaine and related items at the residence of Cecil James. The 

defendant, Carroll, did not reside there but was present on that 

 

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

designated for publication. 
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day. After a forced entry into the rear door, the police secured 

the apartment, which included handcuffing Carroll on the floor. 

 A leather jacket was on a chair near Carroll. One police 

officer asked Carroll if it was his; Carroll answered that it was 

not. The officer searched the pockets, finding store receipts 

and a bag of cocaine. The officer asked Carroll if the jacket 

contained anything with Carroll's name on it. Carroll replied 

affirmatively, and the officer read Carroll his Miranda rights. 

He again asked Carroll if the jacket was his, and this time 

Carroll admitted that it was. 

 At trial, the prosecutor argued in his closing statement: 

 But, if you have sixty-six grams of cocaine 

in that coat, your first reaction when 

someone says, hey, is this your coat? No, 

that is not my coat. Especially if it is an 

officer, a police officer. First thing, no, 

that is not my coat. That is why when the 

officer said, "Is it your coat?" He said, 

"No, it is not my coat." Why would he say 

that? There is no reason except for the fact 

that he knew there was sixty-six grams of 

cocaine in the pocket, stuffed in the pocket. 

 That is the only reason. 

 Carroll contends on appeal, as he did before and during the 

trial, that the physical evidence of the cocaine should have been 

suppressed, as should the statements he made before he was read 

his Miranda rights. 

 The cocaine itself was admissible. The police were 

searching the apartment for narcotics pursuant to a valid search 

warrant. They would have searched the jacket because it was 

clearly a place where narcotics may have been hidden. Even if 
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the unlawful questioning of Carroll in fact led to the search of 

the jacket, evidence tainted by an unlawful seizure is admissible 

when the Commonwealth shows "'(1) a reasonable probability that 

the evidence in question would have been discovered by lawful 

means but for the police misconduct, (2) that the leads making 

the discovery inevitable were possessed by the police at the time 

of the misconduct, and (3) that the police also prior to the 

misconduct were actively pursuing the alternative line of 

investigation.'" Walls v. Commonwealth, 2 Va. App. 639, 656, 347 

S.E.2d 175, 185 (1986) (quoting United Stated v. Cherry, 759 F.2d 

1196, 1204 (5th Cir. 1985)). Consequently, the evidence shows 

that the cocaine would have been discovered by other lawful 

means, and is not the fruit of Carroll's statements. 

 The statements, however, were made by Carroll in response to 

police questions before he was read his rights and are not 

admissible. Carroll was in custody at the time that he was 

questioned. He was surrounded by several armed police officers 

who had forced their way into the apartment; he was ordered to 

lie down; he was handcuffed; and then he was questioned. A 

police officer testified that he would not have let Carroll leave 

if he had asked and admitted that Carroll was suspected of drug 

activity. See Wass v. Commonwealth, 5 Va. App. 27, 359 S.E.2d 

836 (1987). "A reasonable man confronted with [an] armed display 

of manpower at his house, even though earlier told he was not 

under arrest and was free to leave, could only conclude that he 
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was in fact not free to leave and was expected to cooperate. The 

atmosphere was exactly the type of police dominated environment 

described in Miranda." Id. at 34, 359 S.E.2d at 840. 

 Carroll then was directly questioned by a police officer, 

which constituted an interrogation or its functional equivalent. 

 The police officer's questions were obviously designed to elicit 

incriminating responses from Carroll and were therefore the 

functional equivalent of an interrogation. See Blaine v. 

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

 The admission of Carroll's statements at trial was not 

harmless error. The Commonwealth stressed that Carroll had 

initially denied ownership of the jacket and then admitted it 

when the officer found receipts bearing his name. The 

Commonwealth suggested to the jury that, because he denied 

ownership, Carroll must have known that the cocaine was in the 

jacket. 

 The Commonwealth was required to prove that Carroll 

intentionally and consciously possessed the cocaine. Without the 

denial of ownership, the Commonwealth could not have implied that 

Carroll consciously possessed it with knowledge of its nature and 

character. Admission of Carroll's statements was therefore 

reversible error. 

 We affirm the denial of the suppression of the cocaine. We 

reverse the denial of the suppression of Carroll's statements 
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made before the Miranda rights and remand the cause for a new 

trial not inconsistent with our ruling. 

 Affirmed in part,

reversed in part,

and remanded.
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Annunziata, J., concurring. 

 I concur in the opinion of the majority. I write separately 

to address the Commonwealth's contention that Carroll's detention 

was not the functional equivalent of an arrest because it was 

authorized as incident to the execution of a lawful search 

warrant, under the holding in Michigan v. Summers, 452 U.S. 705 

(1981). Under the facts of this case, there is no dispute that 

Carroll's detention was lawful under the Fourth Amendment: "for 

Fourth Amendment purposes . . . a warrant to search for 

contraband founded on probable cause implicitly carries with it 

the limited authority to detain the occupants of the premises 

while a proper search is conducted." Id. at 705. Such 

detentions are typically analogous to limited, Terry-type 

intrusions, id. at 699-703, "[a]lthough special circumstances, or 

possibly a prolonged detention, might lead to a different 

conclusion in an unusual case." Id. at 705 n.21. 

 In the comparatively nonthreatening, noncoercive environment 

of a typical Terry-type detention, a reasonable person would not 

believe that his or her freedom of action had been restrained in 

any significant way so as to invoke Miranda. Berkemer v. 

McCarty, 468 U.S. 420, 436-37 (1984); United States v. Burns, 37 

F.3d 276, 281 (7th Cir. 1994). Contrary to the Commonwealth's 

contention, however, it does not necessarily follow that because 

the type of detention at issue is analogous to a Terry-type stop, 

the detainee is not entitled to Miranda's protections. See, 
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e.g., Cherry v. Commonwealth, 14 Va. App. 135, 139, 415 S.E.2d 

242, 244 (1992). Instead, 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." 

Id. at 140, 415 S.E.2d at 245. The reviewing court must decide 

"`whether there is a formal arrest or restraint on freedom of 

movement' of the degree associated with a formal arrest." Id. at 

140-41, 415 S.E.2d at 245 (citations omitted). 

 The circumstances of the present case were far more 

intrusive and threatening than those characterizing a typical 

Terry-type stop. That both the detention and the questioning of 

appellant were of short duration and were out of public view, is 

not sufficient to dispel the "custodial" environment in which the 

interrogation was conducted in this case. See Wass, 5 Va. App. 

at 34, 359 S.E.2d at 840.