Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ., 

and Lacy and Koontz, S.JJ.

COMMONWEALTH OF VIRGINIA

v. Record No. 110775 OPINION BY JUSTICE WILLIAM C. MIMS

January 13, 2012

JERROD TYREE QUARLES

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we review the en banc judgment of the Court of 

Appeals, which reversed the denial by the Circuit Court of the City 

of Richmond of a motion to suppress and held that the defendant’s 

confession was obtained in violation of his Miranda rights under the 

Fifth Amendment of the United States Constitution.

FACTS AND PROCEEDINGS BELOW

On October 21, 2008, Jerrod T. Quarles and then 11-year-old 

K.T. decided to “rob a white lady” near the area of Virginia 

Commonwealth University in Richmond. The first person they 

encountered was Kimberly Johnson, who was walking home and talking 

on her cellular telephone. Quarles asked K.T. for his shirt, which 

Quarles used to wrap a brick. Quarles struck Johnson in the head 

with the brick. Johnson fell to her knees. K.T., wielding a knife 

that Quarles had provided him, demanded Johnson’s phone, which

Johnson gave to him. Johnson then chased Quarles and K.T. for six 

or seven blocks and later called police.

Hours later, Detective Michael Alston visited K.T.’s home and 

spoke with his mother and later with K.T. K.T. and his mother led 
2

police to Johnson’s cellular telephone and to the knife that K.T. 

used during the robbery. K.T. provided an address where Quarles was 

located. Quarles was placed under custodial arrest and brought to 

the precinct.

At the precinct, Detective Alston took K.T. into his 

lieutenant’s office for interrogation. Quarles remained in a

larger, open office with Officer Darin Papeo. Detective Alston 

spoke with K.T. for 45 minutes to an hour and obtained a full 

confession. He then obtained a full confession from Quarles. 

Quarles was placed under arrest and subsequently indicted for 

robbery and conspiracy to commit robbery in violation of Code 

§§ 18.2-22 and 18.2-58.

Prior to trial, Quarles moved to suppress the evidence on the 

grounds that Detective Alston obtained the confession in violation 

of his Miranda rights under the Fifth Amendment of the United States 

Constitution. At the suppression hearing, Detective Alston 

testified that following his interview of K.T., he walked into the 

hallway and saw Officer Papeo and Quarles in the large open office. 

Officer Papeo approached Detective Alston with a waiver of rights 

form and stated that Quarles wished to talk to an attorney.1

 Quarles 

was sitting approximately 10 or 15 feet away. At this time, the

evidence against Quarles consisted of Johnson’s cellular telephone, 

 1 The parties do not dispute that Quarles had invoked his 

Miranda rights when speaking with Officer Papeo.
3

the knife used in the robbery, and a full, detailed confession from 

K.T. Detective Alston also was aware of two independent witnesses 

with whom he had not yet spoken, as well as Johnson, the victim, who 

presumably could identify Quarles as her attacker.

Detective Alston testified that in response to Officer Papeo’s 

statement, he said to Officer Papeo: “[T]hat’s fine if he doesn’t 

want to talk to me. I wasn’t the person that robbed a white lady 

and hit her in the head with a brick.” He explained that at the 

time of that statement, he believed nothing remained to be done in 

the investigation of Quarles, and that “the case was made.” 

Quarles, upon hearing Detective Alston’s statement, expressed a 

desire to speak with him. Detective Alston responded, “no, that’s 

fine, you don’t have to talk to me. I’m good.” Quarles persisted, 

and later made a full confession.

On cross-examination, Detective Alston was asked if he also 

said “If that’s the story you want to tell the judge, that’s fine.” 

He responded that he may have. He indicated that his recollection 

was limited since he had not recorded the conversation. He 

explained that he used the term “white lady” because K.T. had used 

that term and it was “in his head” from K.T.’s confession. He 

testified that while his statement was not part of the booking 

process, it was not out of the ordinary under the circumstances.

At the conclusion of the hearing, the circuit court made the 

following findings of fact:
4

I find that Detective Alston’s statement to [Officer]

Papeo, having learned that the defendant, Mr. 

Quarles, declined to be interviewed and asked for his 

attorney, the statement [“]that’s fine. I’m not the 

person who robbed the white lady and hit her in the 

head with a brick[”] and the statement that may have 

followed that [“]if that’s the story he wants to tell 

the judge, then, that’s fine,[”] those statements 

were said by Detective Alston to [Officer] Papeo in 

response to what [Officer] Papeo had said to 

Detective Alston.

(Emphasis added.) The circuit court then found that the statements 

were not a re-initiation of interrogation or the functional 

equivalent of interrogation, and that Quarles’ confession was 

initiated by Quarles. It denied Quarles’ motion to suppress the 

confession.

Following a bench trial, the circuit court found Quarles guilty 

of robbery and conspiracy to commit robbery. Quarles appealed to the 

Court of Appeals. A divided panel of that court affirmed his 

convictions. See Quarles v. Commonwealth, Record No. 1988-09-2, 

(Aug. 10, 2010). The Court of Appeals granted his petition for en 

banc review and reversed the judgment of the panel, holding that the 

circuit court erred in denying Quarles’ motion to suppress. Quarles 

v. Commonwealth, 58 Va. App. 13, 26, 707 S.E.2d 7, 13 (2011). The 

Court of Appeals also rejected the trial court’s finding that 

Detective Alston used the pronoun “he” rather than “you” when 

suggesting that Quarles could maintain his innocence “to the judge.” 

Id. at 18 n.1. We granted the Commonwealth’s petition for appeal, 

and now reverse.
5

DISCUSSION

The Commonwealth assigns error to the Court of Appeals holding 

that the police impermissibly reinitiated communication with Quarles 

after he invoked his right to counsel in violation of his rights 

under the Fifth Amendment, and that Quarles’ subsequent waiver of 

his Miranda rights therefore was not voluntary.2

The question of whether Detective Alston’s statement violated 

Quarles’ Fifth Amendment rights is a mixed question of law and fact. 

See Brooks v. Commonwealth, 282 Va. 90, 94, 712 S.E.2d 464, 466 

(2011). 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. Id. at 94-95, 712 S.E.2d at 466; see also

Commonwealth v. Redmond, 264 Va. 321, 327, 568 S.E.2d 695, 698 

(2002) (“ ‘the determination of what [the defendant] actually said 

is a question of fact that we review only for clear error. . . . 

Whether those words are sufficient to invoke the right to counsel is 

a legal determination that we review de novo.’ ”) (quoting United 

States v. Uribe-Galindo, 990 F.2d 522, 523 (10th Cir. 1993)).

 2 The Commonwealth does not assign error to the Court of 

Appeals’ holding that Detective Alston used the pronoun “you” rather 

than “he” and therefore has abandoned any argument on that issue 

before this Court. See Dowdy v. Commonwealth, 278 Va. 577, 597 

n.16, 686 S.E.2d 710, 721 n.16 (2009) (due to failure to assign 

error to a Court of Appeals’ holding, argument not before this 

Court). See Rule 5:17(c)(1)(i) (“ Only assignments of error assigned 

in the petition for appeal will be noticed by this Court.”).
6

The legal principles that govern the outcome of this case are 

familiar and largely not disputed by the parties. 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.” When police interrogate a suspect in their 

custody, they first must give a Miranda warning informing the 

suspect of the right to an attorney and the right to have that 

attorney present during the interrogation. Miranda v. Arizona, 384 

U.S. 436, 469-73 (1966). If the suspect invokes the right to 

counsel, the interrogation must cease until an attorney has been 

made available to the suspect or the suspect reinitiates the 

interrogation.3 Redmond, 264 Va. at 328, 568 S.E.2d at 698 (applying

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)); see also Correll 

v. Commonwealth, 232 Va. 454, 462, 352 S.E.2d 352, 356 (1987) (once 

a suspect invokes the right to counsel, “further discussions between 

the police and the accused must [be] initiated by the accused.”).

The narrow question this case presents is whether Quarles 

reinitiated the interrogation or whether Detective Alston engaged 

Quarles in interrogation or its functional equivalent. See Rhode 

 3 If the police initiate a subsequent interrogation, “the 

suspect’s statements are presumed involuntary and therefore 

inadmissible as substantive evidence at trial,” even where the 

suspect executes a waiver. McNeil v. Wisconsin, 501 U.S. 171, 177

(1991). This rule is “ ‘designed to prevent police from badgering a 

defendant into waiving his previously asserted Miranda rights.’ ” 

Id. (quoting Michigan v. Harvey, 494 U.S. 344, 350 (1990)).
7

Island v. Innis, 446 U.S. 291, 300-01 (1980). The United States 

Supreme Court’s holding in Innis controls the outcome of this case.

In Innis, the police, in the course of investigating a murder 

and a robbery committed by a man using a sawed-off shotgun, arrested 

Innis, who was unarmed. Id. at 293-94. After being advised of his 

Miranda rights, and having asked to speak to a lawyer, Innis was 

placed in a “caged wagon” with three officers for transport to the 

police station. Id. at 294.

While en route to the station, one of the officers said to 

another officer that because there was a school for handicapped 

children nearby, “ ‘there's a lot of handicapped children running 

around in this area, and God forbid one of them might find a weapon 

with shells and they might hurt themselves.’ ” Id. at 294-95. The 

other officer responded that “ ‘it would be too bad if the little 

. . . girl [] would pick up the gun, maybe kill herself.’ ” Id. at 

295. Innis then interrupted to show the officers the location of 

the shotgun. Id.

The Innis court observed that under Miranda, police need not 

engage in express questioning for the exchange to constitute 

interrogation. Id. at 299. However, the Court noted that not all 

statements obtained by police after a person is taken into custody 

are the product of interrogation. Rather, “ ‘[i]nterrogation,’ as 

conceptualized in the Miranda opinion, must reflect a measure of 
8

compulsion above and beyond that inherent in custody itself.” Id.

at 300.

The Court set forth the following test to determine whether 

police conduct constitutes questioning for Miranda purposes:

We conclude that the Miranda safeguards come into 

play whenever a person in custody is subjected to 

either express questioning or its functional 

equivalent. That is to say, the term “interrogation”

under Miranda refers not only to express questioning, 

but also to any words or actions on the part of the 

police (other than those normally attendant to arrest 

and custody) that the police should know are 

reasonably likely to elicit an incriminating response 

from the suspect. . . . A practice that the police 

should know is reasonably likely to evoke an 

incriminating response from a suspect thus amounts to 

interrogation. But, since the police surely cannot 

be held accountable for the unforeseeable results of 

their words or actions, the definition of 

interrogation can extend only to words or actions on 

the part of police officers that they should have 

known were reasonably likely to elicit an 

incriminating response.

Id. at 300-02 (emphasis added) (footnotes omitted). Applying this 

test, the Court held that Innis was not interrogated within the 

meaning of Miranda. Id. at 302.

The Court explained:

That the officers’ comments struck a responsive chord 

is readily apparent. Thus, it may be said . . . that 

the respondent was subjected to ‘subtle compulsion.’

But that is not the end of the inquiry. It must also 

be established that a suspect’s incriminating 

response was the product of words or actions on the 

part of the police that they should have known were 

reasonably likely to elicit an incriminating 

response.
9

Id. at 303 (emphasis added); see also Arizona v. Mauro, 481 U.S. 

520, 529 (1987) (recognizing “subtle compulsion” standard of Innis).

Under Innis, our inquiry, which “focuses primarily upon the 

perceptions of the suspect,” Innis, 446 U.S. at 301, is whether 

Detective Alston should have known that his statement was 

“reasonably likely to elicit an incriminating response” from 

Quarles. Id. In concluding that he should have known, the Court of 

Appeals identified two aspects of Detective Alston’s statement that

distinguished it from Innis. First, part of the statement was 

directed at Quarles with the pronoun “you,” whereas Innis involved a 

conversation ostensibly between two officers in the presence of 

Innis. Second, Detective Alston’s use of the term “white lady” 

amounted to a specific warning to Quarles that K.T. had implicated 

him in the robbery.

We are not persuaded that these minor distinctions actually 

make a substantive difference. The possible use of the secondperson “you” rather than third-person “he” alone does not make the 

statement the functional equivalent of an interrogation under Innis.

While a second-person, direct address is different from the

“dialogue between . . . two officers” considered in Innis, 446 U.S. 

at 302, it is the content of the entire statement in light of the 

circumstances that controls whether it was functionally the 

equivalent of interrogation. The statement here contained no 

implicit request for information or even for response. Rather, it 
10

conveyed exactly the opposite: that the detective did not desire to 

hear Quarles’ account and that Quarles could “tell [it to] the 

judge.” Such a statement, according to Detective Alston, while not 

part of the booking process, was not out of the ordinary based on 

the circumstances. According to Innis, to constitute interrogation, 

the circumstances “must reflect a measure of compulsion above and 

beyond that inherent in custody itself.” 446 U.S. at 300. Simply 

put, we do not find compulsion in the use of the second-person

personal pronoun in this context. Even assuming, arguendo, some 

measure of compulsion, at best it was of the subtle variety approved 

by the United States Supreme Court and therefore acceptable under 

Innis.

Likewise we are not persuaded that the use of the term “white 

lady” created the functional equivalent of interrogation. The 

Unites States Court of Appeals for the Fourth Circuit has previously 

approved the exposure of criminal suspects to information that could 

be interpreted as evidence of guilt. In United States v. Payne, 954 

F.2d 199, 201 (4th Cir. 1992) (vacated on other grounds), the 

defendant was riding in a car with three FBI agents en route to the 

United States Marshal’s office. Agent Martin, who was riding in the 

back seat beside Payne, received a call on the cellular car phone. 

Id. In that call, she learned “that a handgun had been found at 

Payne's residence during the execution of the search warrant.” 

Sometime thereafter, Agent Martin said to Payne, “ ‘They found a gun 
11

at your house.’ ” Payne responded, “ ‘I just had it for my 

protection.’ ” Id.

In holding that the agent’s statement was permissible under 

Innis, the court observed in Payne that “mere declaratory 

descriptions of incriminating evidence do not invariably constitute 

interrogation for Miranda purposes.” Id. at 202. Rather, “[t]he 

inquiry mandated by Innis into the perceptions of the suspect is 

necessarily contextual, and whether descriptions of incriminating 

evidence constitute the functional equivalent of interrogation will 

depend on circumstances that are too numerous to catalogue.” Id. at 

203 (emphasis added) (citing Nelson v. Fulcomer, 911 F.2d 928, 934 

(3d Cir. 1990)).

Other circuits adhere to the rule that exposure to inculpating 

evidence is not, by itself, interrogation. See e.g., United States 

v. Suggs, 755 F.2d 1538, 1541-42 (11th Cir. 1985) (no interrogation 

where defendant was shown a copy of his indictment and made a 

spontaneous exclamation concerning guilt); see also United States v. 

Peoples, 748 F.2d 934, 936 (4th Cir. 1984) (no interrogation where 

victim of shooting entered interrogation room and defendant 

immediately apologized for shooting him).4 Quarles may have inferred 

 4 Other states interpret Innis as allowing such an exposure to 

evidence of guilt. See, e.g., Smith v. State, 995 A.2d 685, 688-90

(Md. 2010) (no interrogation where officer showed defendant cocaine 

found in his bedroom); State v. Gibson, 422 N.W.2d 570, 572, 577 

(Neb. 1988) (no interrogation where officer said, “Oh, look what I 

found” after discovering loaded revolver in the defendant’s 
12

that K.T. had confessed based on the use of the term “white lady.” 

However, based on the “necessarily contextual” inquiry, Payne, 954 

F.2d at 203, we do not find that such minor exposure to evidence 

constitutes an event which is reasonably likely to elicit an 

incriminating response under the circumstances present in this case.

In summation, considering the content and context of the 

statement, we cannot say that Detective Alston should have known 

that Quarles was likely to respond. Unlike the conversation in 

Innis, the statement here did not subtly invite Quarles to reveal a 

missing piece of evidence. To the contrary, Detective Alston 

expressed that he did not need or desire Quarles’ cooperation, which 

was reasonable based on the extensive evidence he had gathered. 

Unlike the circumstances reviewed in Innis, Quarles was not riding 

in a “caged wagon” with three other officers at the time of the 

statement. Rather, the statement came in response to Officer Papeo 

as the detective was passing from a hallway into a large office and 

while Quarles remained 10 to 15 feet away. And, as in Innis, there 

is nothing in the record before us to show that Quarles was 

“particularly susceptible” to such an exposure. We therefore find 

that the circuit court did not err in denying Quarles’ motion to 

suppress.

 

presence, and defendant responded by acknowledging his ownership of 

the weapon).
13

CONCLUSION

For the reasons stated, we will reverse the judgment of the 

Court of Appeals and reinstate Quarles’ convictions.

Reversed and final judgment.