VA: Lack of particularity in motion to suppress was waiver under statute

Defendant’s failure to refer to a Miranda violation as a product of an illegal arrest in the motion to suppress was a waiver. It did come up at the hearing, but it’s still considered waived. [See Treatise § 60.31] Gregory v. Commonwealth, 2014 Va. App. LEXIS 385 (November 25, 2014):

Nowhere in appellant’s “Motion, Memorandum and Notice to Suppress Pursuant to Va. Code § 19.2-266.2” did appellant ever refer to Miranda or even to “custodial interrogation.” As the Commonwealth argues, there are a number of rights enumerated in the Fifth Amendment so even a blanket referral to the Fifth Amendment does not necessarily give the Commonwealth or the trial judge notice of a Miranda argument by appellant, as required by Code § 19.2-266.2.3 Furthermore, the Commonwealth argues that Rule 3A:9(b) applies here, which states:

Any motion made before trial shall be in writing if made in a circuit court, unless the court for good cause shown permits an oral motion.

A motion shall state with particularity the ground or grounds on which it is based. (emphasis added)

Because a Miranda claim is not actually raised — and certainly not raised “with particularity” — in the pre-trial written motion to suppress, the Commonwealth asserts that appellant failed to satisfy Rule 3A:9(b) with respect to her Miranda claim that she later raised at the suppression hearing. Appellant actually had at least two ways to argue in her written motion to suppress that her statements to the officer should be suppressed. First, she could argue, as she did, that the statements were derivative of an illegal search (that was not consensual) and seizure under the Fourth Amendment (i.e., “fruit of the poisonous tree”). Second, she could argue that the statements were illegally obtained — independent of any Fourth Amendment violation — because the statements were the product of an unlawful custodial interrogation. Here, appellant’s counsel made the first argument (i.e., fruit of the poisonous tree) in her written motion to suppress. While never making the second argument in the written motion to suppress, appellant changed course during the actual suppression hearing and tried to make that argument based on Miranda. Because her written motion failed to refer to Miranda or to allege an improper custodial interrogation, the trial court ruled correctly that Code § 19.2-266.2 would not allow appellant to make such an argument in the actual suppression hearing.