COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued by Teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 0730-97-1 JUDGE NELSON T. OVERTON 

 AUGUST 5, 1997 

JOHN EDWARD McBRIEN 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Benjamin A. Williams, Jr., Judge Designate 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General; Margaret Ann B. Walker, Assistant 

Attorney General, on brief), for appellant. 

 Douglas Early Ballard for appellee. 

 In this appeal pursuant to Code § 19.2-398, the Commonwealth 

contends that the trial judge erred in suppressing statements 

made by John Edward McBrien to police in connection with an 

offense with which he is currently charged. For the reasons that 

follow, we reverse the decision of the trial court and remand the 

case for trial. 

 The parties are fully conversant with the record in the 

cause, and because this memorandum opinion carries no 

precedential value, we recite only those facts necessary to the 

disposition of this appeal. 

 On appeal from a trial court's decision to suppress 

evidence, we view the evidence in the light most favorable to the 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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defendant, the prevailing party below. See O'Toole v. 

Commonwealth, 20 Va. App. 540, 541, 458 S.E.2d 595, 596 (1995). 

 Upon request by a Virginia Beach Police detective, McBrien 

went to the police station where he was questioned about an 

alleged offense. McBrien gave a detailed statement to the 

detective at that time. After the statement, the detective 

placed McBrien under arrest. At this point the detective also 

read McBrien his Miranda rights from a standardized form and had 

McBrien initial that he understood each right. McBrien further 

initialed the line marked "Yes" that he understood all of the 

rights and initialed another line marked "Yes" that, having these 

rights in mind, he wished to talk to the police. After that, 

according to the detective's testimony at the hearing, he and 

McBrien "went back over his statement again in the same detail 

that I've already testified and [McBrien] gave [the detective] 

all the facts again that happened." 

 The trial judge found that McBrien was in custody for 

purposes of Miranda during his questioning at the station and 

thus should have been given his Miranda warnings before he made 

any statements. He granted McBrien's motion to suppress all 

statements, but did not make a specific ruling as to the 

statements made after the Miranda warnings were given. 

 We will assume without deciding that McBrien was in custody 

for the pre-Miranda questioning, and that his statements during 

that period of time should be suppressed. After McBrien 
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knowingly and intelligently, and voluntarily waived his right to 

remain silent, however, any statements made to the police may be 

used against him in court. See Roberts v. Commonwealth, 18 Va. 

App. 554, 557, 445 S.E.2d 709, 711 (1994). The detective 

testified that after McBrien waived his right to remain silent, 

he gave the detective "in the same detail . . . all the facts 

again." Nothing at the hearing, including McBrien's own 

testimony, contradicts this. Any statements made by McBrien 

after his waiver are admissible against him and should not have 

been suppressed. 

 The trial court's order is reversed and the case remanded 

for further proceedings consistent with this opinion. 

 Reversed and

remanded.