In one of three published opinions released today, the Supreme Court of Virginia clarifies that an Edwards violation—continued questioning of an accused who has invoked the right to counsel—does not automatically make all subsequent statements inadmissible.
Brian Fayne was detained and Mirandized following a fatal shooting. After roughly four hours of questioning, during which he called his father, who urged him to “lawyer up,” Fayne unequivocally invoked his right to counsel. Notwithstanding that invocation, detectives continued questioning for another hour and fifteen minutes in violation of Edwards v. Arizona. During that continued questioning, Fayne made incriminating statements about drug activity but initially resisted confessing to the shooting.
Eventually, one detective told Fayne he could do nothing more for him, left the room, and closed the door. Fayne was alone. Within approximately twenty seconds, Fayne opened the door himself, asked for a different detective, and indicated that he was ready to talk. When that detective entered the room, Fayne confessed and provided details of the offense.
Fayne moved to suppress those statements, but the circuit court denied suppression, finding that Fayne had reinitiated contact and validly waived counsel. The Court of Appeals reversed, relying on Ferguson v. Commonwealth to hold that because the Edwards violation had never been cured by a meaningful cessation of questioning, Fayne could not have reinitiated contact in any legally cognizable sense, and that in any event his waiver was not knowing and intelligent.
But the Supreme Court of Virginia reversed the Court of Appeals and reinstated the circuit court’s ruling, holding that the “admissibility of post-invocation statements turns on whether interrogation ceased, whether the accused reinitiated communication, and whether a valid waiver followed.”
First, the Court found that the interrogation in fact ended. The detectives’ departure, the closed door, and Fayne’s solitude were not just a pause, but marked a genuine conclusion of the interview. The earlier Edwards violation did not change this. Edwards requires that questioning cease, and here it did.
Second, the Court found that Fayne reinitiated communication. His decision to open the door, request a specific detective, and signal his readiness to speak, reflected a willingness to engage in generalized discussion of the investigation, which was unprompted by any further police conduct. The Court distinguished Ferguson because there the interrogation never meaningfully stopped and the entire encounter was one continuous exchange, making any purported reinitiation illusory. Here, there was a genuine break before Fayne acted on his own initiative.
Third, the Court found that Fayne knowingly and intelligently waived his right to counsel. He had been Mirandized, acknowledged understanding his rights, and demonstrated awareness of the right to counsel by having invoked it earlier. His post-cessation conduct of voluntarily reopening the door, requesting a different detective, stating he was ready to talk, and then confessing reflected a deliberate choice rather than confusion or continuing coercion.
A Virginia Appellate Law Blog 