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 COUR T 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, Everha rt & 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 suppre ss his statements. The trial court ruled that the police faile d to repeat the Miranda warnings after the initia l interrogation ended and after appellee was placed unde r formal arrest. For the reasons stated, we find the trial court erred in granting the motion to suppres s. We reverse and remand.
BACKGROUND Appellee was taken to the Public Safety Building in Henrico C ounty for questioning concerning a “shooting.” Investigator Andrew Stromberg advi sed appellee he was not under arrest but he was being detained. At 7: 12 a.m., Stromberg advised appelle e of his rights under Miranda v. Arizona , 384 U.S. 436 (1966). Stro mberg presented appellee with a Rights Waiv er Form, and appellee initialed each “right” on the form. Appellee then sign ed the form ac knowledging he

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - understood each of his “rights.” 1 The interview, includi ng appellee’s waiver of rights, was recorded
on a DVD. Approximately thirty minutes into the interv iew, Stromberg, believi ng that appellee was lying to him, became frustrated. He stated, “We’re no t going to continue wi th 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. I nvestigator 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, Stromber g returned and told appellee he was now under arrest. Neither Stromberg nor Hanna re peated 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 appelle e’s motion to suppress his statem ents made to Stromberg. The court found that Stromberg terminated the in terview and the interrogat ion ended. The trial court further found that when Stromberg returned and advised appellee that he was now under arrest, these changes in circumstances ma ndated a renewal of appellee’s Miranda rights. This appeal follows.

1 Appellant does not contest the validity of the initial Miranda warnings.- 3 - ANALYSIS On appeal, the Comm onwealth 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 ru ling on a motion to suppress, “‘the burden is upon the [losing party] to show that the ruling, wh en the evidence is considered most favorably to the [prevailing party], constituted reve rsible 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 admissibl e, 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 fi rst must show that the police complied with the necessary procedural safeguards by advisi ng 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 re quires suppression of any illegally obtained statements.”). The Miranda warnings protect a suspect’s constitutional privilege by “ensuring that a susp ect knows that he may choose not to talk to law enforcement offici als, to talk only with counsel present, or to discontinue talk ing 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 captiv e suspects into confessing . . . and as much as possible to free cour ts from the task of scrutinizing individual cases to try to dete rmine, after the fact, whether- 4 - 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 Unite d States, in Missouri v. Seibert , 542 U.S. 600 (2004), stated: In Miranda , we explained that th e “voluntariness doctrine in the state cases . . . encompasse s all interrogation practices which are likely to exert such pressure upon an individual as to disable him from making a free and ra tional 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 in terrogation blurs the line between voluntary and involuntary statements , and thus heightens the risk” that the privilege against self-inc rimination 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 prescr ibed warnings and obtain a waiver of rights before custodial questi oning generally requires exclusion of any statements obtained. Id. at 608. Here, it is uncontroverted that appell ee was properly advised of his Miranda rights. The issue before us is whether the Commonwealth wa s required to repeat the warnings when the interrogation resumed. We start with the premise that “w here a person, after receiving Miranda warnings, has once given a knowing and intelligent waiver of his constitutional rights, such waiver will be- 5 - presumed to continue in effect throughout subs equent custodial interr ogations 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 revoke d 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 appell ee conceded that this issue is not before this Court since it was not part of the tr ial court’s ruling. We agree. The trial court seemed to conclude that sin ce 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 interroga tion must cease . . . .” (emphasis added)). Stromberg’s termination of the interrogation for a period of approximately te n minutes does not, in itself, impact the presumption that the waiver continues. The other basis of the trial court’s gran ting the motion to suppress was a “change in circumstance.” The trial court held, and appell ee argues herein, that when the investigative detention changed to a formal arrest, the police were obligated to agai n 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 si mply 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- 6 - guaranteed by Miranda apply equally to both categories of “custodial interrogation.” To the extent that appellee was subject first to investigat ive 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 circum stances 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 silenc e and was subsequently questioned by a different police offi cer about a different crime. Id. at 98. The Court’s analysis focused on whether the police “scr upulously honored” Mosley’s ri ght 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.