COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Pe tty 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, Assistan t 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 ap peals the judgment of the trial court granting Carl Desei’s motion to suppress his statem ents to the polic e. The Commonwealth contends the Child Protective Services (CPS) worker’s act ions 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 th e reasons stated, we reverse the judgment of the trial court and remand for further proceedings.
BACKGROUND Detective Neives of th e Virginia Beach Police Department arrested Desei on one charge of taking indecent liberties with a minor, in viola tion of Code § 18.2-370(A) (1), and two charges of taking indecent liberties with a minor, in violati on of Code § 18.2-370(A)(3). At the time of his

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - arrest, Neives read Desei the warnin gs pursuant to Mi randa 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 De partment of Human Se rvices 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 De sei and introduced herself. She ga ve Desei a pamphlet entitled “Virginia Cases About Children and Their Fami lies.” Revis completed the last page of the pamphlet, filling in Desei’s name, the alle gations, and the name of the victim. She also completed the appropriate blanks with her name, agen cy, and telephone number. The pamphlet advises the victim’s family and the alleged perpetrator, inter alia , of the investigative procedures for a C PS complaint, the disp osition of CPS reports, the procedure for appealing a CPS finding, and the ri ght to review the report. Revi s characterized the meeting with Desei as “a very routin e procedure” mandated by department policy. 2 Revis testified that she did not ask Desei any questi ons during this meeting.

1 At the time of Desei’s arrest, Revis was trai ning 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 a nd neglect investigation, advise such person of the complaints or allegations made against the person, in a manner that is consis tent with laws protecting the rights of the person making th e report or complaint. Further, the Virginia Administrative C ode, 22 VAC 40-705-80 (2006), dealing with the Department of Social Services and Child Prot ective Services, requires, in relevant part: B. During the course of the i nvestigation, the child protective services (CPS) worker shall make a nd record in writing in the state automated system the following co ntacts and observations. When any of these contacts or observat ions is not made, the CPS worker- 3 - 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 wa s 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 th e victim. Desei signed the agreement. Re vis testified: While I was explaining [the prot ective 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 th erapy 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 importa nt 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 he r he could call her. Revis told Desei that, if he wanted her to talk only to his attorney, he mu st 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 sp ecific contact or observation was not made. * * * * * * * 2. The child protective services (CPS) worker shall conduct a face-to-face interview with the a lleged abuser and/or neglector. a. The CPS worker shall inform the alleged abuser and/or neglector of his right to tape r ecord 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 interv iew and retain a copy of the tape for the record.- 4 - 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 testimon y 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 ta lk to them, he would have to waive his right to his attorney. Dese i indicated that he wished to waive his rights. Neives contacted a Comm onwealth’s attorney, explaining the situation to him, and had someone bring him a Miranda rights waiver form. Revis retrieved a ta pe 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, De sei was again advised of his Miranda rights. Desei received two waiver forms, one provided by Neiv es and one provided by Revis. Desei initialed by each of the rights as it was explained to hi m, and signed the bottom of both forms. Neives and Revis both testified that th ey did not promise Desei anything in exchange for his statements about the incident. In granting the motion to suppress, the tria l court found Revis to be a state actor who engaged in the “functional equivalent” of interro gation. 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 reas onably likely to and designed to- 5 - elicit an incriminating response from the suspect. Therefore, these statements must be suppressed as unlawfully obtained because the suspect did not re-initiate th e 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 pro cedural rights in a CPS invest igation 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 cour t’s denial of a motion to s uppress, 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 co urt’s findings of historical fact only for “clear error,” but we review de novo the trial court’s application of defined le gal standards to the pa rticular 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 di spute. Thus, we determine de novo the issues before us. Included among the safeguards es tablished in Miranda v. Arizona , 384 U.S. 436 (1966), is the right of a suspect to have counsel presen t at any custodial interr ogation 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 . . . , havi ng expressed his desire to deal with the- 6 - police only through counsel, is not subject to fu rther 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 initiate s further “communication, exchanges, or conversations with the police,” and only if those communications re sult in the accused changing his or her mind and freely and voluntarily waiving the right to couns el, 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 he r right to counsel, subsequent waiver of that right is not su fficient 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 in telligent. 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 disc ussions or meetings with the police. Third, if the accused did initiate further discussions or conversations with police, the tr ial 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- 7 - here. Thus, we determine de novo whether Desei initiated the di scussion 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 mo re generalized discussi on relating directly or indirectly to the investig ation.” 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 genera lly ‘initiate’ a c onversation.” Id. The trial court held that, when Revis intr oduced 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 authori zed 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 ma de no incriminating statements during the initial c onversation with Revis. Revis introduced herself to Desei, explained the CPS procedures by going over a pamphl et she provided to Desei, and reviewed the contents of the “protective agreement” with De sei. At that time, Desei asked Revis how the victim was doing, asked what could happen to th e victim, and stated that he cared about the victim. Desei inquired as to what therapy woul d 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 de cide whether Revis had statutory authority to talk to Desei once he i nvoked his right to counsel.

4 As the trial court found that the Commonweal th could not satisfy the second prong of the Edwards analysis, the trial court never made a de termination as to the third prong, whether Desei knowingly and intelligently waived hi s previously invoked right to counsel.- 8 - 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 wh en 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 th e “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 wh ether 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 unlawf ully continued to question the accused after he had invoked his Miranda rights, this did no t 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 co ntact by indicating that he wanted to make a statement). Clearly, Neives and Revis terminated their c ontact 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 atto rney present. By persisting in his requests to talk to them, Desei reinitiate d the contact with authorities that led to his incriminating statements. See Bradshaw , 462 U.S. at 1045-46 (holdi ng that the accused, after invoking his right to counsel, reopened the dial ogue with police officer s 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 cont act with Desei on the voluntariness of Desei’s waiver of his Miranda rights.- 9 - 669, 673 (1992) (finding that the accu sed initiated the exchange w ith 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 continui ng to assert his intent to talk to officers “no matter what his attorney advised”). Therefore, we find that Desei in itiated the contact with Neives and Revis that resulted in his incriminating statements. Because the trial court found that the government had initiated the cont act 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 wa iver 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 initiate d the dialogue with Revi s and Neives, knowingly and intelligently waived his prev iously invoked right to counsel.
CONCLUSION We conclude the trial court erred in finding that the government initi ated the contact with Desei and in granting Desei’s motion to suppress. We reverse the judgment of the trial court and- 10 - remand for a determination of whether Desei knowi ngly and intelligently waived his previously invoked right to counsel. Reversed and remanded.