Criminal – Custody – Search At Booking – Miranda Warnings

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A defendant who was seized for violating a no-trespass order in a Norfolk public housing project, and who did not receive Miranda warnings prior to being asked at the police station whether he had any drugs, can suppress his statement, “Yes, I have the dope in my ass,” but he cannot suppress the drugs that he had hidden in his body cavity, and the Court of Appeals affirms the suppression order.

The officer learned of the location of the drugs after he questioned defendant in custody without having first issued Miranda warnings, and the transcript of the pretrial suppression hearing suggests that both the parties and the trial judge believed the Fifth Amendment exclusionary rule applied to prevent the admission of any evidence obtained as a result of defendant’s unwarned statement unless the police would inevitably have discovered the drugs in the absence of the Miranda violation.

However, in U.S. v. Patane, 542 U.S. 630 (2004), the U.S. Supreme Court restricted the scope of the exclusionary rule applicable to violations of the Miranda rule. The Supreme Court held that the exclusionary rule does not affect admissibility of “nontestimonial physical fruits” of the unwarned statements, unless the defendant’s statement was involuntary within the meaning of the Fifth Amendment.

The facts here are that, without first giving Miranda warnings, the officer asked defendant a question that led to the discovery of the drugs. Given counsel’s concession that defendant’s unwarned statement was voluntary, we do not need more facts to recognize that Patane’s limitation to the scope of the Fifth Amendment exclusionary rule applies to this case. The trial court ruling granting defendant’s motion to suppress his statement but denying his motion to suppress the drugs, properly enforced the exclusionary rule applicable to voluntary statements obtained in violation of Miranda. Given the facts in the record, Whitehead v. Commonwealth, 278 Va. 105 (2009), is perfectly consistent with our recognition that Patane applies to this case.

Bowe v. Commonwealth (Haley, J.) No. 0685-09-1, April 6, 2010; Norfolk Cir.Ct. (Jones) J. Barry McCracken, APD, for appellant; Gregory W. Franklin, AAG, for appellee. VLW 010-7-132(UP), 10 pp.