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Motion to suppress erroneously granted

The trial court applied an incorrect standard when it granted appellant’s motion to suppress his post-Miranda statements.


After being stopped by two police officers, Skillman and Kirby, appellant Thornhill consented to a vehicle search. The search revealed a baggy containing white power.

Skillman asked Thornhill “‘mind saying what that is in the front seat there in the white baggy, the baggy with the white stuff in it?’ Thornhill responded quietly. Officer Skillman asked Thornhill to repeat himself, and Thornhill repeated, ‘probably cocaine.’”

Skillman finished his search and gave Thornhill Miranda warnings. “Officer Skillman then asked, ‘so you said a minute ago, what was in that the front seat in the white baggy?’ During the ensuing questioning, Thornhill admitted that the baggy contained cocaine, the cocaine belonged to him, and that he put it on the floorboard when he saw the police.”

Thornhill challenged the admission of both his pre- and post-Miranda statements. The trial court excluded both sets of statements. The commonwealth contests only the exclusion of the post-Miranda statements. The commonwealth argues that the trial court applied an incorrect test when making its ruling.

Two-step interrogations

This case involves two-step police interrogations. A two-step interrogation occurs when a suspect makes incriminating statements before being advised of Miranda rights and then repeats those statements after Miranda the warnings have been given. The issue is whether such statements are admissible evidence.


“In Oregon v. Elstad, 470 U.S. 298 (1985), the police questioned a suspect about a burglary, without first providing Miranda warnings. The suspect, who was in custody, admitted to being present during the crime. …

“Later, the police read the suspect his Miranda rights before questioning him again. The suspect waived his rights and again confessed to the crime. … The Supreme Court considered whether the questioning of the suspect without first providing Miranda warnings rendered the subsequent post-Miranda statement involuntary.

“The Court concluded that ‘absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion.

“‘A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.’ …

“The Supreme Court revisited the issue in Missouri v. Seibert, 542 U.S. 600 (2004). In Seibert, police officers intentionally applied a two-step interrogation technique. … Using this technique, officers would try to obtain a confession without Miranda warnings.

“If successful, officers would then provide the required Miranda warnings and attempt to elicit the same statements that had been made without the required warnings. … Although a majority of the Court concluded the practice was unlawful, no single opinion spoke for the Court. …

“A plurality of four justices concluded that the threshold issue in every two-step interrogation is ‘whether it would be reasonable to find that in these circumstances the warnings could function “effectively” as Miranda requires.’ …

“The plurality set out a multi-factor test to assess whether the ‘midstream’ warnings could be effective. … Justice Kennedy, however, thought that the plurality approach was too broad because it would apply to both intentional and unintentional two-step interrogations. … Thus, he concurred on ‘narrower’ grounds. …

“Under his approach, if the police deliberately used a two-step approach, then the ‘postwarning statements that are related to the substance of the prewarning statements must be excluded absent specific, curative steps.’ …

“But if the police did not deliberately conduct a two-step interrogation, then the ‘admissibility of postwarning statements should continue to be governed by the principles of Elstad.’”


“The trial court here mistakenly determined that the plurality opinion in Seibert controlled. It incorrectly referred to the plurality opinion as the ‘majority’ and concluded that the plurality opinion modified the Elstad rule.

“Thus, it applied the plurality’s multi-factor test to determine whether the ‘midstream’ Miranda warnings were effective. But both this Court and the Supreme Court of Virginia have adopted Justice Kennedy’s approach as the governing rule in Virginia. …

“Thus, ‘unless police deliberately employ the “question first” strategy, the admissibility of postwarning statements is governed by Elstad.’ …

“[T]he trial court concluded that the officers did not deliberately employ a two-step interrogation. It recognized that Skillman was still in training and that there ‘wasn’t any intent by the officers to circumvent the Constitutional and procedural safeguards of [Thornhill’s] constitutional rights.’

“Because the trial court concluded that it was not a deliberate strategy, admissibility of the postwarning statements is governed by Elstad. The trial court did not apply Elstad; therefore, it did not apply the correct legal standard.”


“Viewing ‘the surrounding circumstances and the entire course of police conduct,’ …  we find that the statements Thornhill made after he received the Miranda warnings were voluntary.

“Officer Skillman was polite and courteous in his questioning of Thornhill – so much so that another officer commented on it in a separate body camera video of the events. The officers did not use any force, threats, or intimidation.

“There is no suggestion that Thornhill was under the influence of any substance or otherwise impaired. And ‘there is no warrant for presuming coercive effect where [Thornhill’s] initial inculpatory statement, though technically in violation of Miranda, was voluntary.’ …

“‘A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.’ …

“Thornhill’s decision to ‘speak after being informed of his rights is … highly probative.’ …Even the trial court recognized that if Elstad was the ‘end of the analysis,’ a different conclusion than suppression was required.”

Reversed and remanded.

Commonwealth v. Thornhill, Record No. 0890-22-3, Oct. 25, 2022. CAV (AtLee Jr.). From the Circuit Court of the City of Lynchburg (Yeatts). Nathan D. Freier for appellant. Ruth Hocker for appellee. VLW 022-7-483, 8 pp.

VLW 022-7-483

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