V. Virginia Analysis
Should this Court find that Virginia’s application of federal law applies, the result is the same—suppression should be granted.
Virginia adheres to federal analysis regarding the attachment of Sixth Amendment right to counsel and affords no greater protection. See Commonwealth v. Malvo, 63 Va.Cir. 22 (Fairfax) (2003). Recently, the United States Supreme Court has reaffirmed its holdings in Brewer and Jackson, supra, in Rothgery v. Gillespie County, 128 S.Ct. 2578, 2008 U.S. LEXIS 5057 (June 23, 2008) by stating,” ...a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”
Because Kerekes’ statements were given prior to any appearance before a judicial officer, under Virginia analysis his Sixth Amendment right to counsel had not yet attached. However, his Fifth Amendment right to counsel had.
The Fifth Amendment provides that “no person... shall be compelled in any criminal case to be a witness against himself.” The United States Supreme Court has held that this guarantee encompasses a right to counsel:
[The Fifth Amendment right to counsel is] found... in this Court’s jurisprudence relating to he Fifth Amendment guarantee [compelled self-incrimination]. In Miraridaf[, supra], we established a number of prophylactic rights designed to counteract the “inherently compelling pressures” of custodial interrogation, including the right to have counsel present.
In Edwards [v. Arizona, 451 U.S. 477, 486-87, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981)], we established a second layer of prophylaxis for the Miranda right to counsel: once a suspect asserts the right, not only must the current interrogation cease, but he may not be approached for further interrogation “until counsel has been made available to him,” 451 U.S. at 484-85, 101 S.Ct. At 1884-85—which means... that counsel must be present, Minnick v. Misissippi, 498 U.S. [ 111 S.Ct. 486,112 L.Ed.2d 489(1990). If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver... The Edwards rule, moreover is not offense specific: once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be re-approached regarding any offense unless counsel is present. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).
McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).
In the instant case, Kerekes was clearly in custody. He had received Miranda warnings and invoked his right to counsel. The police subsequently initiated an encounter in the absence of counsel by requesting “background information” and reading the affidavit of probable cause and charges against Kerekes. Any statements elicited from Kerekes were obtained in violation of his Fifth Amendment right to counsel.
The Commonwealth seeks support for its proposition that Kerekes’ Fifth Amendment rights were not violated under Virginia analysis in Gates v. Commonwealth, 30 Va.App. 352, 516 S.E.2d 731 (1999). However, Gates is inapposite.
In Gates, a defendant arrested on other charges was served with new arrest warrants by police. He was not Mirandized, nor did he invoke his right to counsel before police read the charges to him, Gates at 354. The police asked no questions of the defendant and the defendant made statements following the reading of the charges. ld. at 354-355. The Virginia court determined that this circumstance was not the “functional equivalent” of interrogation. ld. at 356.
The Gates case was different in fundamental aspects from the instant case. Here, Kerekes was Mirandized and invoked his right to counsel. In Gates, the defendant was not Mirandized and did not invoke his right to counsel. Therefore, the analysis was not the same. Further, the Gates court found facts specific to that case as reasons for the finding that the encounter with the defendant did not rise to the “functional equivalent” of interrogation including that the officers did not have any paper or tape recorder and were thus unprepared to record any statement, showing they did not intend to elicit a statement. See Gates at 356.
When the facts of the instant case are analyzed under the Fifth Amendment standard adopted by Virginia, the result is that Kerekes was in custody, he was advised of his Miranda warnings, he invoked his right to counsel and questioning did not cease, The Pennsylvania officers asked questions relating to his background, family history, educational and military background, religion and personal relationships and then proceeded to read to him the affidavit of probable cause and complaint, confronting him with statements of third parties. This was the functional equivalent of custodial interrogation. Therefore, all statements and information provided by the defendant and all fruits thereof should be suppressed as they were obtained in violation of Kerekes’ Fifth Amendment rights.
2 copy of all Virginia case law cited herein is attached to this Brief as an Appendix for the Court’s convenience.
3 is the primary difference between Virginia and Pennsylvania law. Where Pennsylvania and some federal circuits find that magisterial approval of a criminal complaint and issuance of an arrest warrant by a magistrate who is apprised of “information upon oath” is sufficient to commence adversarial proceedings thereby triggering the Sixth Amendment right to counsel, Virginia follows Brewer, Jackson and Rothgery in finding that the Sixth Amendment right attaches at the equivalent of formal arraignment. See Commonwealth v. Richman, 320 A.2d 351 at 353; United States ex rel. Robinson v. Zelker, 468 F,2d 159, 163 (2d Cir. 1972).
Should this Court find that Virginia’s application of federal law applies, the result is the same—suppression should be granted.
Virginia adheres to federal analysis regarding the attachment of Sixth Amendment right to counsel and affords no greater protection. See Commonwealth v. Malvo, 63 Va.Cir. 22 (Fairfax) (2003). Recently, the United States Supreme Court has reaffirmed its holdings in Brewer and Jackson, supra, in Rothgery v. Gillespie County, 128 S.Ct. 2578, 2008 U.S. LEXIS 5057 (June 23, 2008) by stating,” ...a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”
Because Kerekes’ statements were given prior to any appearance before a judicial officer, under Virginia analysis his Sixth Amendment right to counsel had not yet attached. However, his Fifth Amendment right to counsel had.
The Fifth Amendment provides that “no person... shall be compelled in any criminal case to be a witness against himself.” The United States Supreme Court has held that this guarantee encompasses a right to counsel:
[The Fifth Amendment right to counsel is] found... in this Court’s jurisprudence relating to he Fifth Amendment guarantee [compelled self-incrimination]. In Miraridaf[, supra], we established a number of prophylactic rights designed to counteract the “inherently compelling pressures” of custodial interrogation, including the right to have counsel present.
In Edwards [v. Arizona, 451 U.S. 477, 486-87, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981)], we established a second layer of prophylaxis for the Miranda right to counsel: once a suspect asserts the right, not only must the current interrogation cease, but he may not be approached for further interrogation “until counsel has been made available to him,” 451 U.S. at 484-85, 101 S.Ct. At 1884-85—which means... that counsel must be present, Minnick v. Misissippi, 498 U.S. [ 111 S.Ct. 486,112 L.Ed.2d 489(1990). If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver... The Edwards rule, moreover is not offense specific: once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be re-approached regarding any offense unless counsel is present. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).
McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).
In the instant case, Kerekes was clearly in custody. He had received Miranda warnings and invoked his right to counsel. The police subsequently initiated an encounter in the absence of counsel by requesting “background information” and reading the affidavit of probable cause and charges against Kerekes. Any statements elicited from Kerekes were obtained in violation of his Fifth Amendment right to counsel.
The Commonwealth seeks support for its proposition that Kerekes’ Fifth Amendment rights were not violated under Virginia analysis in Gates v. Commonwealth, 30 Va.App. 352, 516 S.E.2d 731 (1999). However, Gates is inapposite.
In Gates, a defendant arrested on other charges was served with new arrest warrants by police. He was not Mirandized, nor did he invoke his right to counsel before police read the charges to him, Gates at 354. The police asked no questions of the defendant and the defendant made statements following the reading of the charges. ld. at 354-355. The Virginia court determined that this circumstance was not the “functional equivalent” of interrogation. ld. at 356.
The Gates case was different in fundamental aspects from the instant case. Here, Kerekes was Mirandized and invoked his right to counsel. In Gates, the defendant was not Mirandized and did not invoke his right to counsel. Therefore, the analysis was not the same. Further, the Gates court found facts specific to that case as reasons for the finding that the encounter with the defendant did not rise to the “functional equivalent” of interrogation including that the officers did not have any paper or tape recorder and were thus unprepared to record any statement, showing they did not intend to elicit a statement. See Gates at 356.
When the facts of the instant case are analyzed under the Fifth Amendment standard adopted by Virginia, the result is that Kerekes was in custody, he was advised of his Miranda warnings, he invoked his right to counsel and questioning did not cease, The Pennsylvania officers asked questions relating to his background, family history, educational and military background, religion and personal relationships and then proceeded to read to him the affidavit of probable cause and complaint, confronting him with statements of third parties. This was the functional equivalent of custodial interrogation. Therefore, all statements and information provided by the defendant and all fruits thereof should be suppressed as they were obtained in violation of Kerekes’ Fifth Amendment rights.
2 copy of all Virginia case law cited herein is attached to this Brief as an Appendix for the Court’s convenience.
3 is the primary difference between Virginia and Pennsylvania law. Where Pennsylvania and some federal circuits find that magisterial approval of a criminal complaint and issuance of an arrest warrant by a magistrate who is apprised of “information upon oath” is sufficient to commence adversarial proceedings thereby triggering the Sixth Amendment right to counsel, Virginia follows Brewer, Jackson and Rothgery in finding that the Sixth Amendment right attaches at the equivalent of formal arraignment. See Commonwealth v. Richman, 320 A.2d 351 at 353; United States ex rel. Robinson v. Zelker, 468 F,2d 159, 163 (2d Cir. 1972).
