Edwards rule in Virginia

2004In order to “prevent police from badgering a defendant into waiving his previously asserted Miranda rights” and to “protect the suspect’s ‘desire to deal with the police only-through counsel,’ ” the United States Supreme Court established the “Edwards rule” as a “second layer of prophylaxis for the Miranda right to counsel.” See Davis [v. United States], 512 U.S. [452] at 458, 114 S.Ct. [2350] at 2355 [ 129 L.Ed.2d 362 (1994)]; McNeil v. Wisconsin, 501 U.S. 171, 176, 178 , 111 S.Ct. 2204, 2208, 2209 , 115 L.Ed.2d 158 (1991); Michigan v. Harvey, 494 U.S. 344, 350 , 110 S.Ct. 1176, 1180 , 108 L.

2004In order to “prevent police from badgering a defendant into waiving his previously asserted Miranda rights” and to “protect the suspect’s ‘desire to deal with the police only-through counsel,’ ” the United States Supreme Court established the “Edwards rule” as a “second layer of prophylaxis for the Miranda right to counsel.” See Davis [v. United States], 512 U.S. [452] at 458, 114 S.Ct. [2350] at 2355 [ 129 L.Ed.2d 362 (1994)]; McNeil v. Wisconsin, 501 U.S. 171, 176, 178 , 111 S.Ct. 2204, 2208, 2209 , 115 L.Ed.2d 158 (1991); Michigan v. Harvey, 494 U.S. 344, 350 , 110 S.Ct. 1176, 1180 , 108 L.

2015“Only if the accused initiates further ‘communication, exchanges, or conversations with the police,’ and only if those communications result in the accused changing his or her mind and freely and voluntarily waiving the right to counsel, may the police resume interrogation without violating the Edwards rule.” Id. at 532 , 507 S.E.2d at 105 (quoting Roberson, 486 U.S. at 682 , 108 S.Ct. at 2098 ).

2015“Only if the accused initiates further ‘communication, exchanges, or conversations with the police,’ and only if those communications result in the accused changing his or her mind and freely and voluntarily waiving the right to counsel, may the police resume interrogation without violating the Edwards rule.” Id. at 532 , 507 S.E.2d at 105 (quoting Roberson, 486 U.S. at 682 , 108 S.Ct. at 2098 ).

2025In Quinn, we said that “[w]hether the Edwards rule renders a statement inadmissible is determined by a three-part inquiry.” 25 Va. App. at 712 . • “First, the trial court ‘must determine whether the accused actually invoked his right to counsel’ and whether the defendant remained in continuous custody from the time he or she invoked this right to the time of the statement.” Id. (quoting Smith v. Illinois, 469 U.S. 91, 95 (1984)). - 10 - • “Second, if the accused has invoked his . . . right to counsel and has remained in continuous custody, the statement is inadmissible unless the trial court f

2025In Quinn, we said that “[w]hether the Edwards rule renders a statement inadmissible is determined by a three-part inquiry.” 25 Va. App. at 712 . • “First, the trial court ‘must determine whether the accused actually invoked his right to counsel’ and whether the defendant remained in continuous custody from the time he or she invoked this right to the time of the statement.” Id. (quoting Smith v. Illinois, 469 U.S. 91, 95 (1984)). - 10 - • “Second, if the accused has invoked his . . . right to counsel and has remained in continuous custody, the statement is inadmissible unless the trial court f

2024The Edwards rule, however, “has not been expanded to include non-custodial demands for an attorney.” Id.

2024The Edwards rule, however, “has not been expanded to include non-custodial demands for an attorney.” Id.

2007Under well-settled law, if an accused has “clearly asserted his right to counsel,” all interrogation must stop “until counsel has been made available to [the accused], unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). “[The Supreme] Court has consistently held that a clear and unambiguous assertion of the right to counsel is necessary to invoke the Edwards rule.” Midkiff v. Commonwealth, 250 Va. 262, 266 , 462 S.E.2d 112, 115 (1995) (citing Mueller v. Commonwealth, 244 Va. 386 , 422 S.E.2d

2007Under well-settled law, if an accused has “clearly asserted his right to counsel,” all interrogation must stop “until counsel has been made available to [the accused], unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). “[The Supreme] Court has consistently held that a clear and unambiguous assertion of the right to counsel is necessary to invoke the Edwards rule.” Midkiff v. Commonwealth, 250 Va. 262, 266 , 462 S.E.2d 112, 115 (1995) (citing Mueller v. Commonwealth, 244 Va. 386 , 422 S.E.2d

2008Whether those words are sufficient to invoke the right to counsel is a legal determination that we review de novo.’ ” Id. (quoting Redmond, 264 Va. at 327 , 568 S.E.2d at 698 ). “[The Supreme] Court has consistently held that a clear and unambiguous assertion of the right to counsel is necessary to invoke the Edwards rule.” Midkiff v. Commonwealth, 250 Va. 262, 266 , 462 S.E.2d 112, 115 (1995). “[A] suspect must state his desire to have counsel present with sufficient clarity that a reasonable police officer under the circumstances would understand the statement to be a request for counsel.” H

2008Whether those words are sufficient to invoke the right to counsel is a legal determination that we review de novo.’ ” Id. (quoting Redmond, 264 Va. at 327 , 568 S.E.2d at 698 ). “[The Supreme] Court has consistently held that a clear and unambiguous assertion of the right to counsel is necessary to invoke the Edwards rule.” Midkiff v. Commonwealth, 250 Va. 262, 266 , 462 S.E.2d 112, 115 (1995). “[A] suspect must state his desire to have counsel present with sufficient clarity that a reasonable police officer under the circumstances would understand the statement to be a request for counsel.” H

2015“Only if the accused initiates further ‘communication, exchanges, or conversations with the police,’ and only if those communications result in the accused changing his or her mind and freely and voluntarily waiving the right to counsel, may the police resume interrogation without violating the Edwards rule.” Id. at 532 , 507 S.E.2d at 105 (quoting Roberson, 486 U.S. at 682 , 108 S.Ct. at 2098 ).

2015“Only if the accused initiates further ‘communication, exchanges, or conversations with the police,’ and only if those communications result in the accused changing his or her mind and freely and voluntarily waiving the right to counsel, may the police resume interrogation without violating the Edwards rule.” Id. at 532 , 507 S.E.2d at 105 (quoting Roberson, 486 U.S. at 682 , 108 S.Ct. at 2098 ).

2012In Edwards, the Court “extended the principles set forth in Miranda to subsequent interrogation,” Commonwealth v. Gregory, 263 Va. 134, 146 , 557 S.E.2d 715, 722 (2002), by holding that, after a suspect “expressed his desire to deal with the police only through counsel,” interrogation must cease until either his counsel has been made available to him or until “the accused himself initiates further communication, exchanges, or conversation with the police,” Edwards, 451 U.S. at 484-85 . -9- To determine the admissibility of a statement under the Edwards rule, we apply a three-part analysis.

2012In Edwards, the Court “extended the principles set forth in Miranda to subsequent interrogation,” Commonwealth v. Gregory, 263 Va. 134, 146 , 557 S.E.2d 715, 722 (2002), by holding that, after a suspect “expressed his desire to deal with the police only through counsel,” interrogation must cease until either his counsel has been made available to him or until “the accused himself initiates further communication, exchanges, or conversation with the police,” Edwards, 451 U.S. at 484-85 . -9- To determine the admissibility of a statement under the Edwards rule, we apply a three-part analysis.

2008“The Edwards rule provides a ‘relatively rigid requirement’ that police and prosecutors must observe.” Hines v. Commonwealth, 19 Va.App. 218, 221 , 450 S.E.2d 403, 404 (1994) (quoting Fare v. Michael C., 442 U.S. 707, 718 , 99 S.Ct. 2560, 2568 , 61 L.Ed.2d 197 (1979)). “[T]he rigid rule [was fashioned to announce] that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.” Michael C., 442 U.S. at 719 , 99 S.Ct. at 2568 ; see also Gregory, 263 Va. at 147 , 557 S.E.2d at 722 (“The prophylaxis of Miranda and Edwards pro

2008“The Edwards rule provides a ‘relatively rigid requirement’ that police and prosecutors must observe.” Hines v. Commonwealth, 19 Va.App. 218, 221 , 450 S.E.2d 403, 404 (1994) (quoting Fare v. Michael C., 442 U.S. 707, 718 , 99 S.Ct. 2560, 2568 , 61 L.Ed.2d 197 (1979)). “[T]he rigid rule [was fashioned to announce] that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.” Michael C., 442 U.S. at 719 , 99 S.Ct. at 2568 ; see also Gregory, 263 Va. at 147 , 557 S.E.2d at 722 (“The prophylaxis of Miranda and Edwards pro

2008Whether those words are sufficient to invoke the right to counsel is a legal determination that we review de novo.’ ” Id. (quoting Redmond, 264 Va. at 327 , 568 S.E.2d at 698 ). “[The Supreme] Court has consistently held that a clear and unambiguous assertion of the right to counsel is necessary to invoke the Edwards rule.” Midkiff v. Commonwealth, 250 Va. 262, 266 , 462 S.E.2d 112, 115 (1995). “[A] suspect must state his desire to have counsel present with sufficient clarity that a reasonable police officer under the circumstances would understand the statement to be a request for counsel.” H

2008Whether those words are sufficient to invoke the right to counsel is a legal determination that we review de novo.’ ” Id. (quoting Redmond, 264 Va. at 327 , 568 S.E.2d at 698 ). “[The Supreme] Court has consistently held that a clear and unambiguous assertion of the right to counsel is necessary to invoke the Edwards rule.” Midkiff v. Commonwealth, 250 Va. 262, 266 , 462 S.E.2d 112, 115 (1995). “[A] suspect must state his desire to have counsel present with sufficient clarity that a reasonable police officer under the circumstances would understand the statement to be a request for counsel.” H

2018See Rashad v. Commonwealth, 50 Va. App. 528 , 651 S.E.2d 407 (2007) (declining to address the third prong of the Edwards v. Arizona, 451 U.S. 477 (1981), analysis regarding subsequent interrogation following the invocation of the right to counsel because it was “not before the Court,” in that defendant did “not argue the third prong of the Edwards analysis”). -5- 584, 586 (2008) (quoting Rawls v. Commonwealth, 272 Va. 334, 349 , 634 S.E.2d 697, 705 (2006)).

2018See Rashad v. Commonwealth, 50 Va. App. 528 , 651 S.E.2d 407 (2007) (declining to address the third prong of the Edwards v. Arizona, 451 U.S. 477 (1981), analysis regarding subsequent interrogation following the invocation of the right to counsel because it was “not before the Court,” in that defendant did “not argue the third prong of the Edwards analysis”). -5- 584, 586 (2008) (quoting Rawls v. Commonwealth, 272 Va. 334, 349 , 634 S.E.2d 697, 705 (2006)).

2025In Quinn, we said that “[w]hether the Edwards rule renders a statement inadmissible is determined by a three-part inquiry.” 25 Va. App. at 712 . • “First, the trial court ‘must determine whether the accused actually invoked his right to counsel’ and whether the defendant remained in continuous custody from the time he or she invoked this right to the time of the statement.” Id. (quoting Smith v. Illinois, 469 U.S. 91, 95 (1984)). - 10 - • “Second, if the accused has invoked his . . . right to counsel and has remained in continuous custody, the statement is inadmissible unless the trial court f

2025In Quinn, we said that “[w]hether the Edwards rule renders a statement inadmissible is determined by a three-part inquiry.” 25 Va. App. at 712 . • “First, the trial court ‘must determine whether the accused actually invoked his right to counsel’ and whether the defendant remained in continuous custody from the time he or she invoked this right to the time of the statement.” Id. (quoting Smith v. Illinois, 469 U.S. 91, 95 (1984)). - 10 - • “Second, if the accused has invoked his . . . right to counsel and has remained in continuous custody, the statement is inadmissible unless the trial court f

2010It is clear that “[o]nly if the accused initiates further ‘communication, exchanges, or conversations with the police,’ and only if those communications result in the accused changing his or her mind and freely and voluntarily waiving the right to counsel, may the police resume interrogation without violating the Edwards rule.” 6 Ferguson v. Commonwealth, 52 Va. App. 324, 335 , 663 S.E.2d 505, 510 (2008) (quoting Arizona v. Roberson, 486 U.S. 675, 682 (1988)), aff’d, 278 Va. 118 , 677 S.E.2d 45 (2009).

2010It is clear that “[o]nly if the accused initiates further ‘communication, exchanges, or conversations with the police,’ and only if those communications result in the accused changing his or her mind and freely and voluntarily waiving the right to counsel, may the police resume interrogation without violating the Edwards rule.” 6 Ferguson v. Commonwealth, 52 Va. App. 324, 335 , 663 S.E.2d 505, 510 (2008) (quoting Arizona v. Roberson, 486 U.S. 675, 682 (1988)), aff’d, 278 Va. 118 , 677 S.E.2d 45 (2009).

2018See Rashad v. Commonwealth, 50 Va. App. 528 , 651 S.E.2d 407 (2007) (declining to address the third prong of the Edwards v. Arizona, 451 U.S. 477 (1981), analysis regarding subsequent interrogation following the invocation of the right to counsel because it was “not before the Court,” in that defendant did “not argue the third prong of the Edwards analysis”). -5- 584, 586 (2008) (quoting Rawls v. Commonwealth, 272 Va. 334, 349 , 634 S.E.2d 697, 705 (2006)).

2018See Rashad v. Commonwealth, 50 Va. App. 528 , 651 S.E.2d 407 (2007) (declining to address the third prong of the Edwards v. Arizona, 451 U.S. 477 (1981), analysis regarding subsequent interrogation following the invocation of the right to counsel because it was “not before the Court,” in that defendant did “not argue the third prong of the Edwards analysis”). -5- 584, 586 (2008) (quoting Rawls v. Commonwealth, 272 Va. 334, 349 , 634 S.E.2d 697, 705 (2006)).

2009After the invocation of the right to counsel, “further interrogation of the accused should not take place ‘unless the accused himself initiates further communication, exchanges, or conversations with the police.’” Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983) (plurality opinion) (quoting Edwards, 451 U.S. at 485 ).

1992Smith v. Illinois, 469 U.S. 91, 95 (1984); Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983). “[T]he Edwards rule is invoked, and . . . custodial interrogation must cease, when the accused, having received Miranda warnings and having begun to respond to the questions of authorities, ‘has clearly asserted his right to counsel.’ ” Eaton v. Commonwealth, 240 Va. 236, 253-54 , 397 S.E.2d 385, 395-96 (1990) (emphasis in original) (quoting Edwards, 457 U.S. at 485), cert. denied, 112 S. Ct. 88 (1991).

2008Request for Counsel We must consider the first prong of the Edwards analysis: whether appellant made an unequivocal request for counsel. 6 The Commonwealth contends that appellant’s first request for counsel “related solely to the issue of consent to search” and that appellant’s second request for counsel “was merely a restatement of his mother’s advice.” The Commonwealth argues that neither “comment” would have been “understood by a reasonable police officer under the circumstances to be a request to have counsel present during the interrogation.” We disagree. “[W]hether an accused ‘clearly r

2008Request for Counsel We must consider the first prong of the Edwards analysis: whether appellant made an unequivocal request for counsel. 6 The Commonwealth contends that appellant’s first request for counsel “related solely to the issue of consent to search” and that appellant’s second request for counsel “was merely a restatement of his mother’s advice.” The Commonwealth argues that neither “comment” would have been “understood by a reasonable police officer under the circumstances to be a request to have counsel present during the interrogation.” We disagree. “[W]hether an accused ‘clearly r

2007Under well-settled law, if an accused has “clearly asserted his right to counsel,” all interrogation must stop “until counsel has been made available to [the accused], unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). “[The Supreme] Court has consistently held that a clear and unambiguous assertion of the right to counsel is necessary to invoke the Edwards rule.” Midkiff v. Commonwealth, 250 Va. 262, 266 , 462 S.E.2d 112, 115 (1995) (citing Mueller v. Commonwealth, 244 Va. 386 , 422 S.E.2d

2007Under well-settled law, if an accused has “clearly asserted his right to counsel,” all interrogation must stop “until counsel has been made available to [the accused], unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). “[The Supreme] Court has consistently held that a clear and unambiguous assertion of the right to counsel is necessary to invoke the Edwards rule.” Midkiff v. Commonwealth, 250 Va. 262, 266 , 462 S.E.2d 112, 115 (1995) (citing Mueller v. Commonwealth, 244 Va. 386 , 422 S.E.2d

2008See Belmer v. Commonwealth, 36 Va.App. *346 448, 458, 553 S.E.2d 123, 128 (2001) (" 'We do not address' issues that the parties failed to raise at trial and failed to present or develop on appeal." (quoting Powell v. Commonwealth, 36 Va.App. 231, 232 , 548 S.E.2d 926, 927 (2001))); see also Rules 5A:18 and 5A:20. 11 .

2008See Belmer v. Commonwealth, 36 Va.App. *346 448, 458, 553 S.E.2d 123, 128 (2001) (" 'We do not address' issues that the parties failed to raise at trial and failed to present or develop on appeal." (quoting Powell v. Commonwealth, 36 Va.App. 231, 232 , 548 S.E.2d 926, 927 (2001))); see also Rules 5A:18 and 5A:20. 11 .

2008See Belmer v. Commonwealth, 36 Va.App. *346 448, 458, 553 S.E.2d 123, 128 (2001) (" 'We do not address' issues that the parties failed to raise at trial and failed to present or develop on appeal." (quoting Powell v. Commonwealth, 36 Va.App. 231, 232 , 548 S.E.2d 926, 927 (2001))); see also Rules 5A:18 and 5A:20. 11 .

2008See Belmer v. Commonwealth, 36 Va.App. *346 448, 458, 553 S.E.2d 123, 128 (2001) (" 'We do not address' issues that the parties failed to raise at trial and failed to present or develop on appeal." (quoting Powell v. Commonwealth, 36 Va.App. 231, 232 , 548 S.E.2d 926, 927 (2001))); see also Rules 5A:18 and 5A:20. 11 .

2008See Height v. State, 281 Ga. 727 , 642 S.E.2d 812, 814 (2007) (holding that any " 'taint' of the prior Edwards violation" was overcome when the accused "initiated the further discussions with police leading to the statement in question, was re-apprised of his Miranda rights in full, and signed a written waiver prior to giving his statement”); People v. Bradford, 14 Cal.4th 1005 , 60 Cal.Rptr.2d 225 , 929 P.2d 544, 566 (1997) ("[I]f the statement made after an Edwards violation is voluntary, 'the admissibility of any subsequent statement should turn in these circumstances solely on whether it i

2008See Height v. State, 281 Ga. 727 , 642 S.E.2d 812, 814 (2007) (holding that any " 'taint' of the prior Edwards violation" was overcome when the accused "initiated the further discussions with police leading to the statement in question, was re-apprised of his Miranda rights in full, and signed a written waiver prior to giving his statement”); People v. Bradford, 14 Cal.4th 1005 , 60 Cal.Rptr.2d 225 , 929 P.2d 544, 566 (1997) ("[I]f the statement made after an Edwards violation is voluntary, 'the admissibility of any subsequent statement should turn in these circumstances solely on whether it i

2008See Height v. State, 281 Ga. 727 , 642 S.E.2d 812, 814 (2007) (holding that any " 'taint' of the prior Edwards violation" was overcome when the accused "initiated the further discussions with police leading to the statement in question, was re-apprised of his Miranda rights in full, and signed a written waiver prior to giving his statement”); People v. Bradford, 14 Cal.4th 1005 , 60 Cal.Rptr.2d 225 , 929 P.2d 544, 566 (1997) ("[I]f the statement made after an Edwards violation is voluntary, 'the admissibility of any subsequent statement should turn in these circumstances solely on whether it i

2008See Height v. State, 281 Ga. 727 , 642 S.E.2d 812, 814 (2007) (holding that any " 'taint' of the prior Edwards violation" was overcome when the accused "initiated the further discussions with police leading to the statement in question, was re-apprised of his Miranda rights in full, and signed a written waiver prior to giving his statement”); People v. Bradford, 14 Cal.4th 1005 , 60 Cal.Rptr.2d 225 , 929 P.2d 544, 566 (1997) ("[I]f the statement made after an Edwards violation is voluntary, 'the admissibility of any subsequent statement should turn in these circumstances solely on whether it i

2004In order to “prevent police from badgering a defendant into waiving his previously asserted Miranda rights” and to “protect the suspect’s ‘desire to deal with the police only-through counsel,’ ” the United States Supreme Court established the “Edwards rule” as a “second layer of prophylaxis for the Miranda right to counsel.” See Davis [v. United States], 512 U.S. [452] at 458, 114 S.Ct. [2350] at 2355 [ 129 L.Ed.2d 362 (1994)]; McNeil v. Wisconsin, 501 U.S. 171, 176, 178 , 111 S.Ct. 2204, 2208, 2209 , 115 L.Ed.2d 158 (1991); Michigan v. Harvey, 494 U.S. 344, 350 , 110 S.Ct. 1176, 1180 , 108 L.

2004In order to “prevent police from badgering a defendant into waiving his previously asserted Miranda rights” and to “protect the suspect’s ‘desire to deal with the police only-through counsel,’ ” the United States Supreme Court established the “Edwards rule” as a “second layer of prophylaxis for the Miranda right to counsel.” See Davis [v. United States], 512 U.S. [452] at 458, 114 S.Ct. [2350] at 2355 [ 129 L.Ed.2d 362 (1994)]; McNeil v. Wisconsin, 501 U.S. 171, 176, 178 , 111 S.Ct. 2204, 2208, 2209 , 115 L.Ed.2d 158 (1991); Michigan v. Harvey, 494 U.S. 344, 350 , 110 S.Ct. 1176, 1180 , 108 L.

2001Thus, if, in violation of these rights, "the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda, 384 U.S. at 475 , 86 S.Ct. at 1628 (citing Escobedo v. Illinois, 378 U.S. 478, 490 , 84 S.Ct. 1758, 1765, n. 14 , 12 L.Ed.2d 977 (1964)). *236 In order to "prevent police from badgering a defendant into waiving his previously asserted Miranda rights" and to "pro

2001Thus, if, in violation of these rights, "the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda, 384 U.S. at 475 , 86 S.Ct. at 1628 (citing Escobedo v. Illinois, 378 U.S. 478, 490 , 84 S.Ct. 1758, 1765, n. 14 , 12 L.Ed.2d 977 (1964)). *236 In order to "prevent police from badgering a defendant into waiving his previously asserted Miranda rights" and to "pro

2007Under well-settled law, if an accused has “clearly asserted his right to counsel,” all interrogation must stop “until counsel has been made available to [the accused], unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). “[The Supreme] Court has consistently held that a clear and unambiguous assertion of the right to counsel is necessary to invoke the Edwards rule.” Midkiff v. Commonwealth, 250 Va. 262, 266 , 462 S.E.2d 112, 115 (1995) (citing Mueller v. Commonwealth, 244 Va. 386 , 422 S.E.2d

2007Under well-settled law, if an accused has “clearly asserted his right to counsel,” all interrogation must stop “until counsel has been made available to [the accused], unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). “[The Supreme] Court has consistently held that a clear and unambiguous assertion of the right to counsel is necessary to invoke the Edwards rule.” Midkiff v. Commonwealth, 250 Va. 262, 266 , 462 S.E.2d 112, 115 (1995) (citing Mueller v. Commonwealth, 244 Va. 386 , 422 S.E.2d

2008“The Edwards rule provides a ‘relatively rigid requirement’ that police and prosecutors must observe.” Hines v. Commonwealth, 19 Va.App. 218, 221 , 450 S.E.2d 403, 404 (1994) (quoting Fare v. Michael C., 442 U.S. 707, 718 , 99 S.Ct. 2560, 2568 , 61 L.Ed.2d 197 (1979)). “[T]he rigid rule [was fashioned to announce] that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.” Michael C., 442 U.S. at 719 , 99 S.Ct. at 2568 ; see also Gregory, 263 Va. at 147 , 557 S.E.2d at 722 (“The prophylaxis of Miranda and Edwards pro

2008“The Edwards rule provides a ‘relatively rigid requirement’ that police and prosecutors must observe.” Hines v. Commonwealth, 19 Va.App. 218, 221 , 450 S.E.2d 403, 404 (1994) (quoting Fare v. Michael C., 442 U.S. 707, 718 , 99 S.Ct. 2560, 2568 , 61 L.Ed.2d 197 (1979)). “[T]he rigid rule [was fashioned to announce] that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.” Michael C., 442 U.S. at 719 , 99 S.Ct. at 2568 ; see also Gregory, 263 Va. at 147 , 557 S.E.2d at 722 (“The prophylaxis of Miranda and Edwards pro

1990The trial court, relying on Poyner v. Commonwealth, 229 Va. 401 , 329 S.E.2d 815 , cert. denied, 474 U.S. 888 , 106 S.Ct. 208 , 88 L.Ed.2d 178 (1985) and Bunch v. Commonwealth, 225 Va. 423 , 304 S.E.2d 271 , cert. denied, 464 U.S. 977 , 104 S.Ct. 414 , 78 L.Ed.2d 352 (1983), concluded that the standard prevailing in Virginia is that a request for counsel must be "unambiguous and unequivocal" in order to trigger the Edwards rule.

1990The trial court, relying on Poyner v. Commonwealth, 229 Va. 401 , 329 S.E.2d 815 , cert. denied, 474 U.S. 888 , 106 S.Ct. 208 , 88 L.Ed.2d 178 (1985) and Bunch v. Commonwealth, 225 Va. 423 , 304 S.E.2d 271 , cert. denied, 464 U.S. 977 , 104 S.Ct. 414 , 78 L.Ed.2d 352 (1983), concluded that the standard prevailing in Virginia is that a request for counsel must be "unambiguous and unequivocal" in order to trigger the Edwards rule.

2008Request for Counsel We must consider the first prong of the Edwards analysis: whether appellant made an unequivocal request for counsel. 6 The Commonwealth contends that appellant’s first request for counsel “related solely to the issue of consent to search” and that appellant’s second request for counsel “was merely a restatement of his mother’s advice.” The Commonwealth argues that neither “comment” would have been “understood by a reasonable police officer under the circumstances to be a request to have counsel present during the interrogation.” We disagree. “[W]hether an accused ‘clearly r

2008Request for Counsel We must consider the first prong of the Edwards analysis: whether appellant made an unequivocal request for counsel. 6 The Commonwealth contends that appellant’s first request for counsel “related solely to the issue of consent to search” and that appellant’s second request for counsel “was merely a restatement of his mother’s advice.” The Commonwealth argues that neither “comment” would have been “understood by a reasonable police officer under the circumstances to be a request to have counsel present during the interrogation.” We disagree. “[W]hether an accused ‘clearly r