COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judge Humphreys and Senior Judge Annunziata 

Argued by videoconference

NICHOLAS LEE THOMAS

OPINION BY

v. Record No. 0176-20-2 JUDGE ROBERT J. HUMPHREYS

DECEMBER 1, 2020

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Phillip L. Hairston, Judge

Daniel W. Hall (Law Office of Daniel W. Hall, on brief), for 

appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. 

Herring, Attorney General, on brief), for appellee.

On May 23, 2018, a grand jury for the Circuit Court of the City of Richmond (“circuit 

court”) indicted appellant Nicholas Lee Thomas (“Thomas”) on one count each of: first-degree 

murder, in violation of Code § 18.2-32; use of a firearm in the commission of first-degree 

murder, in violation of Code § 18.2-53.1; robbery, in violation of Code § 18.2-58; and use of a 

firearm in a robbery, in violation of Code § 18.2-53.1. 

Thomas filed a motion to suppress statements he made to police while in custody. After 

an evidentiary hearing on the motion to suppress, the circuit court found the statements 

admissible and denied Thomas’s motion. Thomas then entered a conditional nolo contendere

plea to first-degree murder, pursuant to Code § 19.2-254, and the Commonwealth agreed to 

move for a nolle prosequi on each of the three remaining charges. The plea agreement preserved 

Thomas’s right to appeal the ruling on the motion to suppress. Subsequently, the circuit court 

sentenced Thomas to fifty years’ incarceration and three years of post-release supervision.

PUBLISHED
- 2 -

On appeal, Thomas argues that the circuit court erred in denying his motion to suppress 

because police interrogated him in violation of his Fifth Amendment rights after he 

unequivocally invoked his right to remain silent.

I. BACKGROUND

On May 11, 2018, Russell Long (“Long”) was fatally shot seven times during a robbery. 

Detective Mark Godwin (“Detective Godwin”), of the Richmond Police Department, identified 

Thomas as a suspect in the murder investigation. On May 15, 2018, police detained Thomas 

during the execution of a search warrant at his home and subsequently took him to the Richmond 

Police Department Headquarters to be interviewed. Thomas’s interview with police was 

recorded, and the video of Thomas’s interactions with the detectives is part of the record before 

us. During the interview, Thomas told Detective Godwin that it was not the first time his rights 

had been read to him. Detective Godwin advised Thomas of his right to remain silent and his 

right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 479 (1966),

1

and Thomas 

subsequently signed a written waiver of his so-called “Miranda rights.” Detective Godwin 

interviewed Thomas for less than an hour. The detective felt the interview was not productive 

and ended it, asking Thomas if he would be willing to give them a DNA sample instead of 

continuing the conversation, to which Thomas consented. 

Detectives Russell (“Detective Russell”) and Bridges (“Detective Bridges”) entered the 

interview room a short time later. They questioned Thomas while taking a DNA swab and 

continued questioning him after it was complete. After several moments, Thomas stated, “Imma 

stop talking.” Detective Russell immediately stood up and asked him, “Listen to me. Did we treat 

you right?” Thomas nodded affirmatively. Detective Russell continued, “Nobody mistreated you, 

1 Thomas does not contest that Detective Godwin properly advised him of his Miranda

rights before and during any questioning. 
- 3 -

right? We gave you every opportunity to talk to us, is that fair?” Thomas nodded yes again. 

Detective Russell asked, “Okay, so you can’t say we didn’t try, right?” The detective paused until 

Thomas answered, “Yes.” Detective Russell then stated, “Okay, I’m asking, I want to be fair, if 

there’s something you need me to correct, let’s do it.” Thomas was silent and nonresponsive. 

Detective Russell then asked, “Okay, we’re basically friends here, right? It’s just a job, right? Can 

you shake my hand?” and put his outstretched hand in front of Thomas, who did not respond. 

Detective Russell asked, “You can’t do that for me?” When Thomas did not respond, Detective 

Russell patted him on the arm. Detective Bridges then asked for Thomas’s mother’s phone number 

so he could call her. Thomas provided his mother’s name and number. 

Immediately afterward, as Detective Russell was on his way out of the room, he turned and 

asked Thomas if he knew what charges were pending against him. Thomas did not respond. The 

detective turned toward Thomas and said, “What do you think it is?” Thomas was silent. Detective 

Bridges suggested, “Robbery?” Thomas flicked his hand and said “Robbery.” Detective Russell 

said, “Robbery, use of a firearm, first-degree murder, and use of a firearm.” Detective Russell then 

asked if Thomas was aware of the penalties for those crimes. Thomas said nothing and rubbed his 

face. Detective Russell said, “I’ll be more than glad to explain it if you’d like me to.” Thomas 

nodded yes. Detective Russell stated the penalties: “First-degree murder carries a life sentence. 

Life. Robbery is five to forty.2 Of course, they’re gonna ask for a jury, because of this guy’s, you 

know, how he was. And the jury sentences you, you’re twenty, the other young man is seventeen, 

he’s going to catch a break.” Thomas immediately asked Detective Russell why the other suspect

would “catch a break” and if it was because he was a juvenile. Detective Russell replied, “Well, he 

2 The detective was mistaken. Robbery is punishable in Virginia by a minimum sentence 

of five years and a maximum of life imprisonment. Code § 18.2-58.
- 4 -

talked.” Detective Bridges said, “He got the story. You don’t think he should get as much of a 

break?” Shortly afterward, Thomas admitted his involvement in Long’s killing. 

On May 22, 2019, Thomas filed a motion to suppress the statements he made to police

asserting that the detectives violated his right to remain silent by continuing to question him after he 

invoked his right to silence. The circuit court denied the motion to suppress. Specifically, the 

circuit court held that Thomas’s statement was not a clear and unequivocal invocation of his right to 

remain silent and that his statements to police were entirely voluntary. This appeal follows. 

II. ANALYSIS

A. Invocation of the Right to Remain Silent

“We review the circuit court’s factual findings in denying a motion to suppress for clear 

error but review its application of the law de novo.” Commonwealth v. Quarles, 283 Va. 214, 220 

(2012) (citing Brooks v. Commonwealth, 282 Va. 90, 94-95 (2011)). The contents of a defendant’s

statements are a question of fact that we review only for clear error. Commonwealth v. Redmond, 

264 Va. 321, 327 (2002). Whether a statement sufficiently invokes or waives the right to silence is 

a legal question we review de novo. Id. (citing United States v. Uribe-Galindo, 990 F.2d 522, 523 

(10th Cir. 1993)). “In reviewing the [circuit] court’s denial of the motion to suppress, we view the 

evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences 

deducible therefrom.” Giles v. Commonwealth, 28 Va. App. 527, 532 (1998). 

The Fifth Amendment of the United States Constitution guarantees that, “[N]o person . . .

shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. 

Upon taking a suspect into custody, police are required to warn him of his right to an attorney and 

the right to remain silent during questioning by police. Miranda, 384 U.S. at 479. If the defendant 

indicates that he wishes to remain silent at any point prior to or during questioning, “the 
- 5 -

interrogation must cease.” Edwards v. Arizona, 451 U.S. 477, 482 (1981). Here, Thomas argues 

that he affirmatively invoked his right to remain silent by saying, “Imma stop talking.” 

Both the right to remain silent and the right to counsel require the suspect to unambiguously 

invoke them. Berghuis v. Thompkins, 560 U.S. 370, 381 (2010). In the context of the right to 

counsel, “[A]mbiguity arises from the circumstances leading up to the statement, along with the 

statement itself, rather than the words of the statement alone.” Stevens v. Commonwealth, 57 

Va. App. 566, 577 (2011). Similarly, in determining whether a suspect unambiguously invoked his 

right to silence, we consider the substance of the statement as well as the context in which it was

made. See Midkiff v. Commonwealth, 250 Va. 262, 267 (1995).

This Court has previously held that a suspect’s statement that he “didn’t have anything more 

to say” and the questioning detective should “buckle up for the long ride,” accompanied by the 

suspect’s turning his chair away, putting his foot up on the wall, and closing his eyes was not a clear 

and unambiguous assertion of the right to remain silent. Green v. Commonwealth, 27 Va. App. 

646, 654 (1998). The Supreme Court of Virginia has held that “Do I have to talk about it now?” 

was not a valid invocation of the right to silence, nor was “I just don’t think that I should say 

anything.” Burket v. Commonwealth, 248 Va. 596, 610 (1994); Akers v. Commonwealth, 216 Va. 

40, 45-46 (1975). Similarly, the statement “I ain’t got shit to say to y’all” did not constitute a 

sufficiently unambiguous invocation of the right to counsel. Mitchell v. Commonwealth, 30 

Va. App. 520, 526-27 (1990). 

Here, when Thomas stated, “Imma stop talking,” Detective Russell immediately stood up 

and moved away from the interview table. Because Thomas had his head in his hands and spoke 

the words very softly, the audio of his statement is such that it is difficult to clearly discern whether 

this statement was directed at the detectives or himself. Assuming without deciding that Thomas’s 

statement amounted to a clear and unambiguous assertion of his right to remain silent, we must 
- 6 -

decide whether the detectives’ questioning violated Thomas’s right to remain silent, and whether he 

waived that right. 

B. The Roots of Miranda

The Fifth Amendment privilege is part of a broader evidentiary family of “testimonial 

privileges.” See Hartigan v. Commonwealth, 31 Va. App. 243, 249 (1999). Other members of 

the family include the spousal privilege, the attorney-client privilege, the doctor-patient 

privilege, and the priest-penitent privilege. However, the privilege against compelled 

self-incrimination is the only one that enjoys constitutional status. See Husske v. 

Commonwealth, 252 Va. 203, 204 (1996) (discussing the constitutional privilege against 

answering questions in either civil or criminal proceedings where the suspect’s answers may 

incriminate him). Nevertheless, as with all testimonial privileges, the privilege against 

self-incrimination is a limited exemption from a basic obligation. 

The fundamental societal rule is that in the pursuit of full disclosure in the courtroom, in 

civil and criminal trials alike, “the public has a right to every man’s evidence.” Kastigar v. 

United States, 406 U.S. 441, 443 (1972). However, public policy sometimes justifies an 

exemption from that testimonial obligation. Because such exemptions are generally disfavored, 

the party asserting a testimonial privilege bears the burden of first, expressly claiming it, Rogers 

v. United States, 340 U.S. 367, 370 (1951), and second, demonstrating an entitlement to it,

Hoffman v. United States, 341 U.S. 479, 486 (1951).

The [Fifth A]mendment speaks of compulsion. It does not 

preclude a witness from testifying voluntarily in matters which 

may incriminate him. If, therefore, he desires the protection of the 

privilege, he must claim it or he will not have been considered to 

have been “compelled” within the meaning of the Amendment.

United States v. Monia, 317 U.S. 424, 427 (1943).
- 7 -

Although Miranda was held by Dickerson v. United States, 530 U.S. 428, 438 (2000) to 

be of “constitutional status,” the Supreme Court has consistently held Miranda’s dual warnings 

or advisements to be purely a set of prophylactic rules designed to implement the foundational

Fifth Amendment privilege. See id. at 437-38.

In Oregon v. Elstad, 470 U.S. 298, 309 (1985), Justice O’Connor distinguished Miranda’s

implementing rules from the underlying constitutional privilege: “If errors are made by law 

enforcement officers in administering the prophylactic Miranda procedures, they should not 

breed the same irremediable consequence as police infringement of the Fifth Amendment itself.”

In Connecticut v. Barrett, 479 U.S. 523, 528 (1987) (emphasis added), the Supreme Court 

similarly stated, “It remains clear, however, that this prohibition on further questioning . . . is not 

itself required by the Fifth Amendment’s prohibition on coerced confessions, but is instead 

justified only by reference to its prophylactic purpose.”

The Supreme Court observed in Davis v. United States, 512 U.S. 452 (1994), with 

respect to the Miranda right to counsel: “The right to counsel established in Miranda was one of 

a ‘series of recommended “procedural safeguards” . . . [that] were not themselves rights 

protected by the Constitution but were instead measures to insure that the right against 

compulsory self-incrimination was protected.’” Id. at 457 (alteration in original) (emphasis 

added). See also Montejo v. Louisiana, 556 U.S. 778 (2009); Withrow v. Williams, 507 U.S. 

680, 690-91 (1993) (“Miranda’s safeguards are not constitutional in character.”); McNeil v. 

Wisconsin, 501 U.S. 171, 176-77 (1991); Michigan v. Harvey, 494 U.S. 344, 350-51 (1990); 

Duckworth v. Eagan, 492 U.S. 195 (1989); Solem v. Stumes, 465 U.S. 638, 644-45 (1984).

Distinguishing between a mere implementing rule and the underlying constitutional 

protection it implements is important to any Miranda analysis. To understand the coverage of an 

implementing rule, in terms of both its reach and its limits, one must necessarily understand the 
- 8 -

coverage of the thing that the rule implements; the latter that controls the former. As the

Maryland Court of Special Appeals explained in Reynolds v. State, 594 A.2d 609, 614 (Md. Ct. 

Spec. App. 1991), “The scope of an implementing rule can be no broader than the scope of the 

undergirding constitutional protection being implemented.” 

The starting point for any inquiry into the coverage of Miranda is the Fifth Amendment 

to the Constitution of the United States. That amendment is broad in its scope. One of its five 

provisions is the privilege against compelled self-incrimination. U.S. Const. amend. V. The 

confluence of the implementing rule and the thing implemented was squarely stated in United 

States v. Mandujano, 425 U.S. 564, 579 (1976): “[Miranda] expressly rested on the privilege 

against compulsory self-incrimination; the prescribed warnings sought to negate the 

‘compulsion’ thought to be inherent in police station interrogation.” 

A Fifth Amendment and Miranda analysis is incomplete without examining the facts for 

an element of compulsion. Miranda’s prophylactic safeguards are designed to protect the 

individual’s constitutional right to be free from being “compelled in any criminal case to be a 

witness against himself.” U.S. Const. amend. V. The constitutional privilege guards against 

only one form of self-incrimination: compelled self-incrimination. Elstad, 470 U.S. at 306-07 

(“The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled

testimony.”). Because volunteered statements of any kind do not implicate the Fifth 

Amendment, they are unaffected by Miranda’s precautionary evidentiary rules. Miranda, 384 

U.S. at 478. There is no such thing as a general constitutional privilege against 

self-incrimination. Nor does there exist a constitutional privilege against inadvertent 

self-incrimination or against self-incrimination as a result of stupidity. See United States v. 

Washington, 431 U.S. 181, 186-87 (1977) (“[I]t is . . . axiomatic that the [Fifth] Amendment 

does not automatically preclude self-incrimination, whether spontaneous or in response to 
- 9 -

questions put by government officials.”). The constitutional privilege guards against only one 

form of self-incrimination: compelled self-incrimination.

C. Custodial Interrogation

Miranda announced a bright-line formula that the combination of custody and 

interrogation will be deemed to be presumptively coercive, though as with most presumptions, it 

is rebuttable. See Miranda, 384 U.S. at 467. Nevertheless, custodial interrogation gives rise to 

the presumption of compulsion, catalyzing the therapeutic, implementing rule of Miranda. See

Edwards, 451 U.S. at 481-82. Absent the combination of both custody and interrogation, there is 

no presumption of compulsion and there is, therefore, no call for Miranda’s implementing 

countermeasures. See Washington, 431 U.S. at 187-88 (“The Constitution does not prohibit 

every element which influences a criminal suspect to make incriminating admissions . . . [t]he 

constitutional guarantee is only that the witness not be compelled to give self-incriminating 

testimony.”). 

In the case before us here, there is no question that Thomas was in custody. The question 

is whether his incriminating statements were the result of interrogation and, if so, whether he 

voluntarily waived his right to silence before making them.

In its simplest form, interrogation is an easy concept to grasp. It is a police officer asking 

a suspect about his involvement in a crime after the suspect has been taken into custody or 

otherwise deprived of his freedom of action in any significant way. See Miranda, 384 U.S. at

444. The exact definition of what constitutes an interrogation is nebulous and, at times, not 

well-defined. See Blain v. Commonwealth, 7 Va. App. 10, 15 (1988) (discussing the functional 

equivalent of interrogation). It is not always an orchestrated set of alternating questions and 

answers. Every “question” by police does not necessarily actually end with a question mark. 

See Gates v. Commonwealth, 30 Va. App. 352, 355-56 (1999).
- 10 -

Fourteen years after Miranda, the Supreme Court first took up this problem in Rhode Island 

v. Innis, 446 U.S. 291 (1980). Innis held that for Miranda purposes, interrogation includes police 

communication that is the functional equivalent of questioning. Id. at 300-01. Words or actions 

constitute the functional equivalent of questioning when the officers should know their 

communication is “reasonably likely to elicit an incriminating response from the suspect.” Timbers 

v. Commonwealth, 28 Va. App. 187, 195 (1998) (quoting Innis, 446 U.S. at 301). Coercive police 

activity is a “necessary predicate” to finding that a confession was involuntary. See Colorado v. 

Connelly, 479 U.S. 157, 167 (1986). Further, a suspect may be visibly emotional, confused, or 

depressed during questioning, but that does not automatically render his confession or waiver 

invalid, nor does it necessarily indicate that the police methods were coercive. Harrison v. 

Commonwealth, 244 Va. 576, 583 (1992) (citation omitted). The ultimate test is whether, 

considering the totality of the circumstances, the free will of the suspect was overborne. See Rogers 

v. Richmond, 365 U.S. 534, 544 (1961). When making a voluntariness determination, we examine 

the specific facts of the case to determine whether the officers’ methods constituted coercive police 

activity. See id. at 584.

Put another way, in the context of their brief conversation with Thomas, we must 

determine if the detectives should have known that Thomas would likely be moved to make a 

self-incriminating response to their questions and statements. If they did not, we must then 

decide if Thomas’s responses to the detectives’ statements constituted a voluntary waiver of his 

previous decision to remain silent.

Whereas straightforward interrogation can be easily identified, there is also ambiguous 

police behavior that may or may not be deemed the functional equivalent of interrogation. When 

determining if an interaction between a suspect and the police constituted interrogation, the

reviewing court must look outside the box of literal “interrogation” to the larger picture. See
- 11 -

Gwaltney v. Commonwealth, 19 Va. App. 468, 472 (1995) (“Whether [such] a statement was 

voluntary or the result of coercive police activity is a legal question to be determined from a 

review of the totality of the circumstances.”). The court must examine whether police behavior 

involved the sort of coercion, defined as conduct that actually implicates the compulsion element 

of the privilege against compelled self-incrimination, that Miranda was designed to prevent. See

Blain, 7 Va. App. at 15 (“If a suspect’s statement was not foreseeable, then it was volunteered.”). 

In deciding whether particular police conduct is interrogation, we must remember that the 

purpose behind the Miranda and Edwards decisions was preventing government officials from 

using the coercive nature of confinement to extract confessions that would not be given in an 

unrestrained environment. See Doe v. United States, 487 U.S. 201, 212 (1988); Hartigan, 31 

Va. App. at 249. We think the Sixth Circuit most accurately and succinctly described the scope 

of Fifth Amendment Miranda rights: “If a reasonable person, using all of the facts and 

circumstances available, would view the police as attempting to obtain a response to use at trial, 

it is an ‘interrogation.’” Bachynski v. Stewart, 813 F.3d 241, 246 (6th Cir. 2015).

D. Waiver of the Right to Silence

“[I]t is well settled that even if invoked, the Miranda right to silence can ‘be waived by the 

suspect if the waiver is made knowingly and intelligently.’” Medley v. Commonwealth, 44 

Va. App. 19, 34 (2004) (en banc) (quoting Jackson v. Commonwealth, 266 Va. App. 423, 432 

(2003)).

Miranda and its progeny do not require a waiver regarding the right to silence be in writing 

or verbally expressed, nor do they preclude a conclusion that a waiver occurred based on the 

defendant’s course of conduct. See Angel v. Commonwealth, 281 Va. 248, 259 (2011) (citing 

Harrison, 244 Va. at 582). As such, waiver may be inferred from the words and actions of the 
- 12 -

person being interrogated. Harrison, 244 Va. at 582 (quoting North Carolina v. Butler, 441 U.S. 

369, 373 (1979)).

We find our prior holding in Medley instructive. In that case, we found that while Medley 

understood his right to remain silent and his choice to invoke his rights, he affirmatively waived his 

previously invoked right to silence by voluntarily reinitiating conversation with the police. Medley, 

44 Va. App. at 36-37. An individual’s relinquishment of his right to silence must be a voluntary, 

free, and deliberate choice and not the result of police intimidation, coercion, or deception. Id. at 37 

(quoting United States v. Cristobal, 293 F.3d 134, 139-40 (4th Cir. 2002)).

Additionally, any waiver must be made with a full awareness of the nature of the right being 

abandoned and the consequences of the decision to abandon it. Id. (quoting Cristobal, 293 F.3d at 

139-40). We determine whether both prongs of this test are met by evaluating the totality of the 

circumstances surrounding the interrogation. Id. (quoting Cristobal, 293 F.3d at 139-40). “Factors 

relevant to this determination include ‘the defendant’s age, intelligence, mental and physical 

condition, background and experience with the criminal justice system, the conduct of the police, 

and the circumstances of the interview.’” Keepers v. Commonwealth, 72 Va. App. 17, 37 (2020) 

(quoting Washington v. Commonwealth, 43 Va. App. 291, 302-03 (2004)). 

Thomas relies upon the last two factors and argues that despite his assertion of his right to 

silence, the detectives continued to interrogate him in order to obtain incriminating evidence. 

Once a suspect invokes his right to remain silent, police are prohibited from interrogating 

him further unless the suspect voluntarily reinitiates questioning or a significant amount of time 

passes. See Michigan v. Mosley, 423 U.S. 96, 106 (1975). This Court has previously recognized a 

routine booking question exception “which exempts from Miranda’s coverage questions to secure 

the biographical data necessary to complete booking or pretrial services.” Watts v. Commonwealth, 

38 Va. App. 206, 215-16 (2002). However, the exception “does not mean . . . that any question 
- 13 -

asked during the booking process falls within that exception. . . . [T]he police may not ask 

questions, even during booking, that are designed to elicit incriminatory admissions.” Id. at 216 

(alterations in original) (quoting Pennsylvania v. Muniz, 496 U.S. 582, 602 n.14 (1990)).

We held that the test to determine if there was a police interrogation is “whether an objective 

observer would view an officer’s words or actions as designed to elicit an incriminating response.” 

Id. at 217 (quoting Gates v. Commonwealth, 30 Va. App. 352, 355-56 (1999)). The issue in this 

case is whether the detectives’ statements regarding Thomas’s charges and their potential penalties,

as well as their reference to the minor defendant being treated more leniently, were objectively 

designed to elicit an incriminating admission.

We find our jurisprudence on the right to counsel to be instructive:

[T]here are undoubtedly situations where a bare inquiry by either a 

defendant or by a police officer should not be held to ‘initiate’ any 

conversation or dialogue. There are some inquiries, such as a 

request for a drink of water or a request to use a telephone, that are 

so routine that they cannot be fairly said to represent a desire on 

the part of the accused to open up a more generalized discussion 

relating directly or indirectly to the investigation.

Giles v. Commonwealth, 28 Va. App. 527, 534 (1998) (quoting Oregon v. Bradshaw, 462 U.S. 

1039, 1045 (1983)). 

Similarly, not every statement by an accused can fairly be considered further conversation 

that effectively waives the accused’s right to silence. Nor can every statement made by an officer, 

after a suspect invokes his or her right, be accurately described as communication designed to elicit 

an incriminating response. Questions that arise out of and during the routine incidents of the 

custodial relationship are distinct from those coercive in nature. See id.

As we noted in Giles, asking a suspect if he would like something to eat or drink or if he 

would like to use the bathroom would not be considered coercive as likely to elicit an incriminating

response. Id. However, those questions do not seek biographical “booking” information, either. 
- 14 -

The lack of a coercive element to police conduct and not strictly the content of any statement is the 

distinguishing factor between what Miranda allows and what it forbids. See Gwaltney, 19 Va. App. 

at 472 (“The burden is upon the Commonwealth to prove that extra-judicial inculpatory statements 

were made voluntarily before they can be admitted in evidence . . . .”). “Fidelity to the doctrine 

announced in Miranda requires that it be enforced strictly, but only in those types of situations in 

which the concerns that powered the decision are implicated.” Berkemer v. McCarty, 468 U.S. 420, 

437 (1984).

Although not previously comprehensively addressed by the appellate courts of the 

Commonwealth, many of our sister federal and state courts have addressed the parameters of 

questions and conduct by the police that do not constitute interrogation. These included police 

conduct that was uncoercive in nature, questions by police that did not relate to a suspect’s 

involvement in a crime, or communication that did not constitute biographical information 

necessary for case processing or pre-trial services, all of which fall outside the prophylactic remedy 

of Miranda.

3

Indeed, as the United States Supreme Court has noted, “[F]ar from being prohibited 

by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable.”

Washington, 431 U.S. at 187.

Therefore, if a suspect’s statements “represent a desire on the part of an accused to open up 

a more generalized discussion relating directly or indirectly to the investigation,” officers may 

3 See, e.g., Illinois v. Perkins, 496 U.S. 292 (1990) (statements to undercover officer 

posing as a prisoner while in prison were not the result of custodial interrogation); United States 

v. Payne, 954 F.2d 199 (4th Cir. 1992) (declaratory statement by federal agent that police had 

found a gun in defendant’s house did not constitute interrogation requiring Miranda warnings); 

Prioleau v. State, 984 A.2d 851 (Md. 2009) (“What’s up?” was a general term of salutation, and 

it was not reasonable to view phrase as designed to elicit an incriminating response); State v. 

Spencer, 826 A.2d 546 (N.H. 2003) (showing a defendant bank surveillance photographs prior to 

apprising her of her Miranda rights was not the functional equivalent of custodial interrogation);

State v. Hambly, 726 N.W.2d 697 (Wis. Ct. App. 2006) (detective’s statement to defendant that 

his arrest was related to three cocaine sales to a named informant was not functional equivalent 

of interrogation for Miranda purposes), aff’d, 745 N.W.2d 48 (Wis. 2008).
- 15 -

reasonably conclude that the suspect has implicitly waived his right to remain silent and may 

resume interrogation. Bradshaw, 462 U.S. at 1045. In Harrison, the Supreme Court of Virginia 

held that a suspect validly reopened the dialogue with police and waived his Miranda rights by 

inquiring “what was going to happen to him.” Harrison, 244 Va. at 583.

We find two cases with factual similarities to this case particularly persuasive. The Ninth 

Circuit has held that a government agent’s statements to an arrestee after he had received his 

Miranda warnings and had invoked his right to remain silent did not constitute interrogation as the

agent merely told the arrestee that a large quantity of cocaine had been seized and that the arrestee 

“was in serious trouble.” United States v. Moreno-Flores, 33 F.3d 1164, 1169 (9th Cir. 1994).

Such statements were not express questions that reasonably would call for an incriminating 

response, and the fact that police statements to the suspect “may have struck a responsive chord” 

was insufficient to find them the functional equivalent of interrogation. Id. at 1169-70.

Likewise, the Seventh Circuit considered a factually similar case and held that an officer’s 

statement regarding the evidence and possible consequences of a conviction did not rise to the level 

of interrogation. Easley v. Frey, 433 F.3d 969 (7th Cir. 2006). “As the Fourth Circuit observed in 

United States v. Payne, ‘information about the evidence against a suspect may also contribute to the 

intelligent exercise of his judgment regarding what course of conduct to follow.” Id. at 974 (quoting 

United States v. Payne, 954 F.2d 199, 202 (4th Cir. 1992)).

The questions posed to Thomas by Detectives Russell and Bridges after he said “Imma stop 

talking now” were not of the variety that police should know are reasonably likely to elicit an 

incriminating response. Likewise, telling a suspect about the charges filed against him and their 

corresponding penalties would not reasonably call for an incriminating response. Neither were the 

detectives’ statements regarding the minor co-defendant coercive or deceitful. Pursuant to current 

Code § 19.2-291.1, the Commonwealth requires that adult defendants be both tried and sentenced 
- 16 -

by a jury. Conversely, although juvenile offenders may be tried by jury, they may only be 

sentenced by a judge. Code § 16.1-272. Detective Russell simply explained that sentencing 

distinction to Thomas when Thomas re-engaged in conversation with the officers. Instead of 

remaining silent, Thomas re-opened the conversation with Detective Russell when he asked why his 

co-defendant would likely get a lesser sentence and then inquired if it was because the co-defendant 

was a juvenile. 

Thomas clearly indicated his waiver of the right to remain silent by his voluntary verbal 

interactions with the detectives. The totality of the circumstances reveals that Thomas had already 

been informed of his right to counsel and his right to remain silent. Further, Thomas confirmed to 

Detective Godwin that his Miranda rights were communicated to him on a previous occasion in 

police custody and that he was familiar with them. 

When all the facts in this case are considered in conjunction with one another and in the 

light most favorable to the Commonwealth as the party that prevailed in the circuit court, we 

conclude that Thomas was not subject to the type of police conduct that would compel a reasonable 

person to incriminate themself in violation of the Fifth Amendment and Thomas’s voluntary 

communication with police demonstrated a knowing, intelligent, and voluntary waiver of any 

previously invoked right to silence. The judgment of the circuit court is therefore affirmed.

Affirmed.