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Statements after invoking right to be silent admissible

Virginia Lawyers Weekly//March 28, 2022

Statements after invoking right to be silent admissible

Virginia Lawyers Weekly//March 28, 2022

The court denies defendant’s motion to suppress her statements to the police after she invoked her right to remain silent.


Defendant was arrested for her “suspected involvement in the death of Salahuddin Ibn Shabazz.” She was placed in an interrogation room with two detectives and was advised of her Miranda rights. “[A] detective asked if Defendant wanted to speak about the incident.” She shook her head to indicate “no.”

A detective told her if she changed her mind and wanted to talk, she could. Both detectives left the room. One returned about an hour and 15 minutes later. The detective twice said she was waiting on a search warrant. Then she noted that defendant “didn’t really want to talk today.” Defendant said “um-hum.”

The detective then told defendant that she wanted to talk with her to get her side of the story. The detective said that she knew defendant was involved and offered her phone number if defendant wanted to talk.

The detective repeated that she knew defendant was involved and that she wanted to hear defendant’s side of the story. Defendant then spoke to the detective.

Defendant’s motion to suppress her statement to the detective is before the court.

Legal standards

“The Court of Appeals of Virginia in Thomas recently held that ‘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 [noting that a minor co-defendant would likely get a lesser sentence] coercive or deceitful.’ Thomas v. Commonwealth, 72 Va. App. 560, 586, 850 S.E.2d 400,412 (2020). …

“Though the Thomas case calls into question whether the statements in the case at bar constituted the functional equivalent of interrogation, this Court will assume without deciding that an interrogation occurred, and will apply the Mosley [Michigan v. Mosley, 423 U.S. (1975)] ‘scrupulously honored’ standard. …

“Once a defendant has invoked her right to remain silent, the police must honor that invocation. … If police reapproach the defendant, then the Court will analyze five factors, put forth by the United States Supreme Court in Mosley, to determine whether the defendant’s right to remain silent was ‘scrupulously honored.’ …

“The five factors from Mosley, as summarized by the Virginia Supreme Court in [Weeks v. Commonwealth, 248 Va. 460 (1994)], are: ‘First, whether defendant “was carefully advised” before the initial interrogation “that he was under no obligation to answer any questions and could remain silent if he wished.”

“‘Second, whether there was an immediate cessation of the initial interrogation, and no attempt to persuade defendant to reconsider his position. Third, whether the police resumed questioning “only after the passage of a significant period of time.”

“‘Fourth, whether Miranda warnings preceded the second questioning. Fifth, whether the second interrogation was limited to a crime that had not been the subject of the earlier interrogation.’”

Five factors analysis

“Overall, this Court finds Defendant’s right to remain silent was ‘scrupulously honored.’ The first factor goes to the Commonwealth. … Here, the officers clearly Mirandized the suspect before the first interrogation.

“The second factor likewise goes to the Commonwealth. Before the initial interrogation, the officers read Defendant her Miranda rights and asked her if she wanted to talk to them. When Defendant shook her head no, the officers immediately stopped asking her interrogation questions.

“The third factor states that ‘a significant period of time’ should pass between interrogations. … [T]he Court finds that this factor should go to the Commonwealth. Particularly informative to this analysis is the Fourth Circuit Court of Appeals definition of the ‘significant period of time’ factor from Mosley:

“‘A significant period of time between interrogations does not require a durational minimum. … Instead, a “significant period of time” is a function of to what degree the police “persist[ed] in repeated efforts to wear down [the suspect’s] resistance and make him change his mind.”’ …

“[I]n the facts of the Mosley case, the police waited ‘over two hours’ before reinitiating interrogation with the arrestee. In the instant case, the amount of time between the interrogations, about an hour and fifteen minutes, is comparable.

“While the amount of time here is shorter than Mosley, … this Court does not view this as a consequential difference in the length of time. Additionally, as in Mosley, the police here did not persist with interrogation during the break.

“Thus, in the present case, the officers waited a ‘significant period of time’ under Mosley and this third factor favors the Commonwealth.

“The fourth factor favors the defense. As seen in the video, Miranda warnings did not precede subsequent questioning. However, the Court notes that this fact is not determinative. …

“In Weeks, the Virginia Supreme Court expressly disagreed with Weeks’ contention that the fact that the police did not re-Mirandize him violated his constitutional rights. …

“The fifth factor also favors the defense because the crime was not the subject of earlier interrogation. However, it should be noted that [under Weeks] this fact is not determinative.”

Defendant’s motion to suppress is denied.

Commonwealth v. Jackson, Case No. CR21001086-01 through CR21001086-04, Feb. 8, 2022, City of Newport News Circuit Court (Mills). Andrea Booden for the commonwealth, Timothy G. Clancy for defendant. VLW 022-8-009, 8 pp.

VLW 022-8-009

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