COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felt on, Judges Benton and Petty Argued by teleconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 2783-06-4 CHIEF JUDGE WALTER S. FELTON, JR. APRIL 10, 2007 CINDY CARRUITERO

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Jane Marum Roush, Judge Craig W. Stallard, Assistant Atto rney General (Robert F. McDonnell, Attorney General, on briefs), for appellant. Malik N. Drake for appellee.

Pursuant to Code § 19.2-398 1 , the Commonwealth app eals a pretrial ruling granting Cindy Carruitero’s motion to su ppress statements and evidence obtained during a search of her residence pursuant to a search warrant base d on her statements. The Commonw ealth contends the trial court erred in finding that Carruitero’s non-custodial request for an attorney prohibited law enforcement officers from “speaking with her further” regard ing her participation in a suspected gang-related graffiti incident. For the reason s that follow, we reverse the tr ial court’s ruling and remand for further proceedings consiste nt with this opinion.
I. BACKGROUND When a pretrial motion to suppress is reviewed on app eal, the burden is on the Commonwealth to show that the ruling, when the evidence is cons idered in the ligh t most favorable

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 The Court will review the Commonwealth’s appeal of the pretrial suppression order only insofar as it pertains to the felony indictment.- 2 - to the prevailing party below, here Carruitero, co nstituted reversible erro r. Ford v. Commonwealth , 28 Va. App. 249, 255, 503 S.E.2d 803, 805 (1998). Although “we are bound by th e trial court’s findings of historical fact unless ‘plainly wrong’ or without evidence to support them,” McGee v. Commonwealth , 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) ( en banc ), “we review de novo the trial court’s application of defined legal standards . . . to the particular fact s of the case.” Medley v. Commonwealth , 44 Va. App. 19, 20, 602 S.E.2d 411, 41 5 (2004) (citing Orne las v. United States , 517 U.S. 690, 699 (1996)). So viewed, the evidence show s that Detective Claudio Saa of the Herndon Police Department telephoned Carruitero on November 25, 2005 regarding his inves tigation of an October 24, 2005 suspected gang-related graffiti incident. He had “developed” Carruitero as a suspect after receiving a tip from a conf idential informant. During the teleph one call, he advise d Carruitero that she was a possible suspect in the ca se and that he wanted to conduct a voluntary interview with her to “clarify her involvement.” Carruitero told him that she “had already gotte n into some trouble and that [she] didn’t want to get [h er]self into more trouble by sayi ng something and that [she] wanted to talk to [her] lawyer.” Det ective Saa requested the name and nu mber of her lawyer so that he “could contact and try to set something up.” Th e telephone conversation then ended. Approximately thirty minutes after the conclu sion of the first tele phone call, Carruitero telephoned Detective Saa and provi ded him with the name and teleph one number of her attorney. She also asked him “what the inves tigation was about.” He told her that it involved the destruction of property and 18th Street Gang graffiti, to which Carruitero resp onded, “I was there.” Detective Saa then ended the call. The record contains no evidence that the detec tive contacted Carruitero’s attorney. He teleph oned Carruitero later that evening and informed her that he still wished to speak with her regarding the graffiti inci dent. She agreed to ta lk with him the follow ing day, if he would come to her residence.- 3 - Detective Saa arrived at Carru itero’s residence for the interview dressed in plain clothes. Carruitero, an adult, was present with both of her parents. Prior to co mmencing the interview, Detective Saa did not give Carruitero Miranda warnings, although he tes tified that he informed Carruitero that she was not obligated to speak with him and could stop the interview at any time. Carruitero’s mother testif ied that Carruitero told the detective she wanted to speak with her attorney “before saying anything,” and the detective responde d by stating, “don’t wo rry because nothing that you will say is going to be taken into consideration. This is just a friendly investigation that we are doing.” However, when asked if she had “ever indicate[d] to [Detec tive Saa] that [she] wanted an attorney present[,]” Carru itero stated, “I said th at to him on the phone, not when he was there because when he talked to me on the phone, he made it seem like he just wanted to come and talk not that, like, everything I say is going to come ag ainst you in court.” Carru itero also testified she did not recall the detective saying she could stop the interview at any time. During the interview, Carruitero made statements incriminating herself in the graffiti incident. Detective Saa told her that he “would be pressing charges, but [that] [he] would notify the Assistant Commonwealth’s Attorney who would be on the case of her cooperatio n.” He did not arrest her at that time. Some four months la ter on March 30, 2006, De tective Saa prepared an affidavit in support of a search wa rrant for Carruitero ’s residence. In the affidavit, he stated the incriminating statements Carruitero made during the interview were the basis for the search warrant. During the execution of the s earch warrant, unspecified inculpatory evidence was seized. Carruitero was indicted for knowingly and w illfully participating in the destruction of private property, committed for the benefit of, or at the direction of, or in a ssociation with a criminal street gang in violation of Co de § 18.2-46.2, a fel ony, and unlawfully dest roying or damaging private property valued less th an $1,000 in violation of Co de § 18.2-137, a misdemeanor.- 4 - On October 13, 2006, Carruitero moved to suppress her statem ents and the fruits of the search warrant, contending that her statements “were obtained in violation of the Fifth and Fourteenth Amendm ents of the United States and Article I of the Constitu tion of Virginia” and that the “[e]vidence resulting from [the ] statements was obtained in vi olation of [her] right against self-incrimination.” In response, the Commonwealth cited Miranda v. Arizona , 384 U.S. 436 (1966), and argued the statements were admissibl e because Carruitero was not in custody when she spoke with Detective Saa. At the suppression hearing, the Comm onwealth argued there were “two particular issues here, one being the question of the voluntariness of [Carruitero’s] statements[,]” and the other being that “[i] t doesn’t appear . . . this is a situation where Miranda warning would apply . . . [because] [s]he wasn’t in custody and [the detective] a dvised her that she wasn’t under
arrest.” Carruitero’s attorney asserted that, “even if Your Honor is inclined to think . . . Miranda was not appropriate, those statements we re obtained in bad fa ith.” When he began to “move to the next point,” the trial court interrupted, granting Carruitero’s moti on to suppress. Sp ecifically, the trial court ruled that Carruitero invoked her Fifth Amendment right to coun sel during the initial telephone conversation with Detective Saa when she stated she wanted to sp eak with her attorney. It found that her phone call providing her attorn ey’s name and number di d not constitute voluntary reinitiating contact with the dete ctive and that the evidence obtai ned during the execution of the search warrant was suppressed under the “fruit of the poisonous tree” doctri ne. Absent from the trial court’s ruling was a finding that Carruitero was subjected to custodial interrogation when she stated her desire to consult with her attorney. The tria l court did not address the voluntariness issue in its ruling.- 5 - II. ANALYSIS The Commonwealth’s sole contenti on on appeal is that “the trial court erred in finding that Carruitero invoked her [Fifth Amen dment] right to counsel and the police were then prohibited from further contact with her.” “The right of a criminal suspect to have an attorney present during custodial interrogation was first articulated by the Supreme Court in Miranda v. Arizona , 384 U.S. 436, 469-73 (1966).” Commonwealth v. Hilliard , 270 Va. 42, 49, 613 S.E.2d 579, 584 (2005). The Court held that, before an individual may be questioned by police, he must be warned of his right to rema in silent and his right to [have] an attorney [present] only when that “individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning.” Bailey v. Commonwealth , 259 Va. 723, 745, 529 S.E.2d 570, 583 (2000) (quoting Miranda , 384 U.S. at 478). In Edwards v. Arizona , 451 U.S. 477 (1981), the Court, in a post-arrest setting, “‘established a second layer of prophylaxis for the Miranda right to counsel . . . [,]’” Commonwealth v. Gregory , 263 Va. 134, 146, 557 S.E.2d 715, 722 (2002) (quoting McNeil v. Wisconsin , 501 U.S. 171, 176 (1991)), holding that, “an ac cused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made availabl e to him, unless the accused himself initiates further communication, exchanges, or conve rsations with the police.” Edwards , 451 U.S. at 484-85. The protections afforded by Miranda , Edwards , and their progeny “appl[y] only when a suspect is subjected to custodial interrogation.” We bber v. Commonwealth , 26 Va. App. 549, 557, 496 S.E.2d 83, 86 (1998) (citing Davis v. Allsbrooks , 778 F.2d 168, 170-71 (4th Cir. 1985)). See also Tipton v. Commonwealth , 18 Va. App. 832, 835, 447 S.E.2d 539, 540 (1994)- 6 - (holding that “[t]he Edwards rule has not been expanded to in clude non-custodial demands for an attorney . . .”). The Commonwealth contends De tective Saa’s initial tele phone conversation with Carruitero, during wh ich she stated she wanted to speak with her attorn ey, was non-custodial and therefore did not trigger the prop hylactic protections of Miranda and Edwards

. Whether a suspect is “in cu stody” for purposes of Miranda and Edwards “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 associ ated with formal arrest.’” Aldridge v. Commonwealth , 44 Va. App. 618, 642, 606 S.E.2d 539, 551 (2004) (quoting Harris v. Commonwealth , 27 Va. App. 554, 564, 500 S.E.2d 257, 262 (1998)). See also California v. Beheler , 463 U.S. 1121, 1125 (1983). “In making that determination, the situation must be viewed from the vantage point of ‘how a reas onable man in the suspect’s position would have understood his situation. ’” Wass v. Commonwealth , 5 Va. App. 27, 32, 359 S.E.2d 836, 839 (1987) (quoting Berkemer v. McCarty , 468 U.S. 420, 442 (1984)). Courts must also consider “‘a host of factors,’” id. (quoting United States v. Streijel , 781 F.2d 953, 961 (1st Cir. 1986)), when determin ing whether a suspect was “in custody” for Miranda and Edwards purposes. These factors include: (1) the manner in which the individual is summoned by the police, (2) the familiarity or neutrality of the surroundings, (3) the number of officers present, (4) the degr ee of physical restraint, (5) the duration and character of the inte rrogation, and (6) the extent to which the officers’ beliefs concerning the potential culpability of the individual being questioned were manifested to the individual. Aldridge , 44 Va. App. at 642, 606 S.E.2d at 551 (citati ons omitted). “However, no single factor alone may necessarily establish custody . . . and not all factors may be relevant in a given case.”
Wass , 5 Va. App. at 33, 359 S.E.2d at 839. The record reflects Detective Saa initia lly contacted Carruitero for a “voluntary interview” by telephone in order to “clarify he r involvement” in the graffiti incident. She was- 7 - not restrained in any manner, and could have ea sily ended the conversati on at any time by simply disconnecting the call. The durat ion of the telephone call was br ief. Although Detective Saa did advise Carruitero that she was a suspect in the case, “‘[e]ven a clear statement from an officer that the person under interrogation is a prime susp ect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest.’” Aldridge , 44 Va. App. at 646, 606 S.E.2d at 553 (quoting Stansbury v. California , 511 U.S. 318, 324-25 (1994)). See also Commonwealth v. Thornton , 24 Va. App. 478, 488, 483 S.E.2d 487, 492 (1997) (“[The application of Miranda [is not] triggered ‘simply because the . . . questioned person is one whom the police suspec t.’” (quoting Pruett v. Commonwealth , 232 Va. 266, 271, 351 S.E.2d 1, 4 (1986))). Considering these circ umstances, a reasonable person would not have believed that Carruitero’s “freedom of movement” was restrained [t o] the degree associated with formal arrest. Aldridge , 44 Va. App. at 642, 606 S.E.2d at 551. Accordingly, Carruitero was not in custody during her initial te lephone conversation with Detec tive Saa, and, therefore, the prophylactic protections of Miranda and Edwards were not triggered. From the record presented, we conclude that the trial court erred in determining that Carruitero’s request to speak w ith her attorney invoked her Fi fth Amendment right to counsel and that Detective Saa was prohibite d from further contact with her. Likewise, we conclude that the subsequent interview at Carruitero’s re sidence was also non-cu stodial in nature. Consequently, the inculpatory statements Carruitero made during the interview are not inadmissible as the result of a Miranda or Edwards violation. Carruitero argues on appeal that we should affirm the trial court’s ruling because her inculpatory statements to Detective Saa were invol untary. As the trial cour t failed to address the issue of whether Carruitero’s statements were voluntarily made, “there is no ruling for us to review on appeal.” Ohree v. Commonwealth , 26 Va. App. 299, 308, 494 S.E.2d 484, 489 (1998).- 8 - Accordingly, we will not consider the issue. We therefore re verse the trial cour t’s judgment and remand for further proceedings consistent with this opinion. Reversed and remanded.