COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Kelsey and Beales 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION*

 BY 

v. Record No. 1122-06-2 JUDGE ROBERT P. FRANK 

 OCTOBER 3, 2006 

CARLOS FERNANDO WIMBISH 

 FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Gary A. Hicks, Judge 

Alice T. Armstrong, Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on briefs), for appellant. 

 Jeffrey L. Everhart (Rice, Everhart & Baber, on brief), for appellee. 

 The Commonwealth, appellant, appeals, pursuant to Code § 19.2-398, the trial court’s 

decision to grant Carlos Fernando Wimbish’s motion to suppress his statements. The trial court 

ruled that the police failed to repeat the Miranda warnings after the initial interrogation ended and 

after appellee was placed under formal arrest. For the reasons stated, we find the trial court erred in 

granting the motion to suppress. We reverse and remand. 

BACKGROUND

 Appellee was taken to the Public Safety Building in Henrico County for questioning 

concerning a “shooting.” Investigator Andrew Stromberg advised appellee he was not under arrest 

but he was being detained. At 7:12 a.m., Stromberg advised appellee of his rights under Miranda v. 

Arizona, 384 U.S. 436 (1966). Stromberg presented appellee with a Rights Waiver Form, and 

appellee initialed each “right” on the form. Appellee then signed the form acknowledging he 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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understood each of his “rights.”1

 The interview, including appellee’s waiver of rights, was recorded 

on a DVD. 

 Approximately thirty minutes into the interview, Stromberg, believing that appellee was 

lying to him, became frustrated. He stated, “We’re not going to continue with this” and left the 

interview room. As Stromberg left the room, appellee made some comment or response, but 

Stromberg testified he did not hear the statement at the time and did not know that appellee had said 

something to him until he subsequently reviewed the DVD recording of the interview. The trial 

court reviewed the DVD and concluded that he could not understand what appellee had said. 

 After leaving the interview room, Stromberg met with Investigator Hanna, the lead 

investigator in the shooting. Investigator Hanna had determined that appellee was going to be 

arrested in relation to the shooting; however, Stromberg testified that at that point he (Stromberg) 

was unaware of the specific charges to be brought against appellee. 

 Approximately ten minutes after leaving the interview room, Stromberg returned and told 

appellee he was now under arrest. Neither Stromberg nor Hanna repeated the Miranda warnings at 

that point, and Stromberg did not specifically advise appellee of the charges. Stromberg then 

resumed the interview. Appellee ultimately made inculpatory statements regarding the shooting. 

 The trial court granted appellee’s motion to suppress his statements made to Stromberg. 

The court found that Stromberg terminated the interview and the interrogation ended. The trial 

court further found that when Stromberg returned and advised appellee that he was now under 

arrest, these changes in circumstances mandated a renewal of appellee’s Miranda rights. 

 This appeal follows. 

 1

 Appellant does not contest the validity of the initial Miranda warnings. 
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ANALYSIS

 On appeal, the Commonwealth contends the trial court erred in ruling the Commonwealth 

was required to repeat the Miranda warnings before resuming the interrogation. 

 When this Court reviews a trial court’s ruling on a motion to suppress, “‘the burden is 

upon the [losing party] to show that the ruling, when the evidence is considered most favorably 

to the [prevailing party], constituted reversible error.’” McGee v. Commonwealth, 25 Va. App. 

193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 

1010, 265 S.E.2d 729, 731 (1980)). 

In order for a confession to be admissible, the Commonwealth bears the burden of 

proving the defendant voluntarily made a knowing and intelligent waiver of his constitutional 

privilege against self-incrimination and his right to counsel. Miranda, 384 U.S. at 475. 

Therefore, the Commonwealth first must show that the police complied with the necessary 

procedural safeguards by advising the defendant of his Miranda rights. See Blain v. 

Commonwealth, 7 Va. App. 10, 13, 371 S.E.2d 838, 840 (1988) (“Failure to give Miranda

warnings prior to custodial interrogation requires suppression of any illegally obtained 

statements.”). 

 The Miranda warnings protect a suspect’s constitutional 

privilege by “ensuring that a suspect knows that he may choose not 

to talk to law enforcement officials, to talk only with counsel 

present, or to discontinue talking at any time. The Miranda

warnings ensure that a waiver of these rights is knowing and 

intelligent by requiring that the suspect be fully advised of this 

constitutional privilege, including the critical advice that whatever 

he chooses to say may be used as evidence against him.” Colorado 

v. Spring, 479 U.S. 564, 574 (1987). Furthermore, “[t]he purposes 

of the safeguards prescribed by Miranda are to ensure that the 

police do not coerce or trick captive suspects into confessing . . . 

and as much as possible to free courts from the task of scrutinizing 

individual cases to try to determine, after the fact, whether 
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particular confessions were voluntary.” May v. Commonwealth, 3 

Va. App. 348, 354-55, 349 S.E.2d 428, 431 (1986). 

Shell v. Commonwealth, 11 Va. App. 247, 252, 397 S.E.2d 673, 675-76 (1990). 

 The Supreme Court of the United States, in Missouri v. Seibert, 542 U.S. 600 (2004), 

stated: 

 In Miranda, we explained that the “voluntariness doctrine 

in the state cases . . . 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[.]” [Miranda, 384 U.S. 

at 464-65]. We appreciated the difficulty of judicial enquiry post 

hoc into the circumstances of a police interrogation, [Dickerson v. 

United States, 530 U.S. 428, 444 (2000)], and recognized that “the 

coercion inherent in custodial interrogation blurs the line between 

voluntary and involuntary statements, and thus heightens the risk” 

that the privilege against self-incrimination will not be observed[.] 

[Id. at 435]. Hence our concern that the “traditional totality-of-the 

circumstances” test posed an “unacceptably great” risk that 

involuntary custodial confessions would escape detection. [Id. at 

442]. 

 Accordingly, “to reduce the risk of a coerced confession 

and to implement the Self-Incrimination Clause,” [Chavez v. 

Martinez, 538 U.S. 760, 790 (2003) ( Kennedy, J., concurring in 

part and dissenting in part)], this Court in Miranda concluded that 

“the accused must be adequately and effectively apprised of his 

rights and the exercise of those rights must be fully honored.” 

[Miranda, 384 U.S. at 467]. Miranda conditioned the admissibility 

at trial of any custodial confession on warning a suspect of his 

rights: failure to give the prescribed warnings and obtain a waiver 

of rights before custodial questioning generally requires exclusion 

of any statements obtained. 

Id. at 608. 

 Here, it is uncontroverted that appellee was properly advised of his Miranda rights. The 

issue before us is whether the Commonwealth was required to repeat the warnings when the 

interrogation resumed. 

 We start with the premise that “where a person, after receiving Miranda warnings, has 

once given a knowing and intelligent waiver of his constitutional rights, such waiver will be 
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presumed to continue in effect throughout subsequent custodial interrogations until the suspect 

manifests, in some way which would be apparent to a reasonable person, his desire to revoke it.” 

Washington v. Commonwealth, 228 Va. 535, 548-49, 323 S.E.2d 577, 586 (1984). 

 Appellee contends on brief that he revoked his decision to speak to the police by 

responding to Stromberg’s statement, “We’re not going to continue with this,” by stating, “No, 

we’re not going to continue this.” However, during oral argument appellee conceded that this 

issue is not before this Court since it was not part of the trial court’s ruling. We agree. 

 The trial court seemed to conclude that since Stromberg, rather than appellee, terminated 

the interrogation, any new interrogation must be accompanied by a new Miranda warning. 

Appellee conceded at oral argument that he could point to no authority to support this argument. 

Clearly, the police cannot revoke appellee’s intent to speak to the police. Cf. Miranda, 384 U.S. 

at 473 (“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 . . . .” (emphasis added)). Stromberg’s 

termination of the interrogation for a period of approximately ten minutes does not, in itself, 

impact the presumption that the waiver continues. 

 The other basis of the trial court’s granting the motion to suppress was a “change in 

circumstance.” The trial court held, and appellee argues herein, that when the investigative 

detention changed to a formal arrest, the police were obligated to again give appellee Miranda

warnings. Again, we disagree. “Whether a suspect is ‘in custody’ under Miranda is determined 

by the circumstances of each case, and ‘the ultimate inquiry is simply whether there is a formal 

arrest or restraint on freedom of movement of the degree associated with formal arrest.’” Harris 

v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257, 262 (1998) (quoting California v. 

Beheler, 463 U.S. 1121, 1125 (1983)). For Miranda purposes, a formal arrest is no different than 

“restraint on freedom of movement of the degree associated with formal arrest.” The safeguards 
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guaranteed by Miranda apply equally to both categories of “custodial interrogation.” To the 

extent that appellee was subject first to investigative detention and then to a formal arrest, this 

change in circumstance has no Miranda consequence requiring a re-advisement of the Miranda

warnings. 

 Appellee relies on Michigan v. Mosley, 423 U.S. 96 (1975), to support his argument that 

appellee experienced a change in circumstances requiring renewal of his Miranda warnings. We 

find appellee’s reliance on Mosley misplaced. In Mosley, the Supreme Court addressed the 

admissibility of Mosley’s confession after he invoked his right to silence and was subsequently 

questioned by a different police officer about a different crime. Id. at 98. The Court’s analysis 

focused on whether the police “scrupulously honored” Mosley’s right to terminate questioning. 

Id. at 104. As previously discussed, the issue of appellee’s revocation is not before this Court. 

Thus, the holding in Mosley does not apply to the facts of this case. 

 We conclude the trial court erred in granting the motion to suppress. We reverse and 

remand for further proceedings. 

Reversed and remanded.