Petition for Writ of Certiorari — Brian Fayne, Petitioner v. Virginia

Supreme Court briefAug 12, 2026

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No. _______

In The

Supreme Court of the United States

BRIAN FAYNE,

Petitioner,

v.

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of Virginia

PETITION FOR A WRIT OF CERTIORARI

James O. Broccoletti

Counsel of Record, pro bono

Zoby & Broccoletti, P.C.

6663 Stoney Point S

Norfolk, VA 23502

Tel. (757) 466-0750

Fax (757) 466-5026

james@zobybroccoletti.com

S. Mario Lorello

Of Counsel, pro bono

Zoby & Broccoletti, P.C.

6663 Stoney Point S

Norfolk, VA 23502

Tel. (757) 466-0750

Fax (757) 466-5026

mario@zobybroccoletti.com

QUESTION PRESENTED

The police must immediately cease questioning a suspect who invokes his right

to counsel. Edwards v. Arizona, 451 U.S. 477 (1981). The State conceded at every

stage of the proceedings that Petitioner Fayne unequivocally invoked his right to

counsel and that the police continued to interrogate him for approximately ninety

minutes in violation of Edwards. Seconds after police left the room, Fayne knocked

on the door and indicated that he was willing to talk to the investigators, leading to

incriminating statements. The Supreme Court of Virginia held that Edwards only

requires that the questioning cease, and that the failure to honor Fayne’s invocation

was not relevant to the analysis as to whether the interrogation ultimately ceased.

The court did not inquire as to whether the reinitiation was the result of the violation.

The Question Presented is:

Whether, after police continue interrogating a suspect in violation of

Edwards v. Arizona despite his unequivocal invocation of counsel, the

State may rely solely on the suspect's subsequent reinitiation of

communication to admit his statements, or whether the Fifth

Amendment requires the State to establish that the suspect’s

reinitiation and subsequent waiver were not the product of the

unlawful interrogation.

i

LIST OF PARTIES

I.

II.

Brian Fayne, appellant

Commonwealth of Virginia, appellee

ii

PROCEEDINGS BELOW

III.

Commonwealth v. Fayne, Case No. CR21000769 (Hampton Circuit Court,

Sept. 18, 2023)

IV.

Fayne v. Commonwealth, 83 Va. App. 686, 911 S.E.2d 842 (2025)

V.

Commonwealth v. Fayne, 928 S.E.2d 406 (Va. 2026)

iii

TABLE OF CONTENTS

QUESTION PRESENTED ..............................................................................................i

LIST OF PARTIES ........................................................................................................ ii

PROCEEDINGS BELOW ............................................................................................. iii

TABLE OF AUTHORITIES .......................................................................................... vi

OPINIONS BELOW........................................................................................................ 1

JURISDICTION .............................................................................................................. 1

CONSTITUTIONAL PROVISION ................................................................................. 1

INTRODUCTION ........................................................................................................... 1

STATEMENT OF THE CASE ........................................................................................ 4

I.

Factual History .............................................................................................. 4

II. The Proceedings Below .................................................................................. 9

REASONS FOR GRANTING PETITION .................................................................... 10

I.

Lower courts are now split as to whether a reinitiation can be voluntary if

it is the product of a prolonged Edwards violation, and they are split as to

whether a violation precludes a finding that the invocation was ever

honored. ........................................................................................................ 10

A. The Virginia Supreme Court’s decision conflicts with federal

appellate decisions ............................................................................ 11

B. The Virginia Supreme Court stands alone among state courts of

last resort as well as the DC federal circuit. ................................... 14

II. The Supreme Court of Virginia erred by holding that an accused’s

reinitiation may be voluntary when it follows from continued

interrogation after invocation. .................................................................... 20

A. Reinitiation cannot be voluntary when it is the product of a

prolonged Edwards violation ........................................................... 22

B. The requirement that police honor an invocation imposes an

affirmative and immediate duty to cease the interrogation. .......... 24

III. This Court has never resolved whether an accused may voluntarily

reinitiate questioning after police have failed to actually honor an

invocation of counsel. ................................................................................... 26

A. This case is an ideal vehicle to resolve this important and recurring

question ............................................................................................. 27

IV. The decision below permits police to circumvent Edwards’s protections by

continuing interrogation in hopes that a suspect later reinitiates. .......... 28

CONCLUSION .............................................................................................................. 30

iv

APPENDIX

APPENDIX A:

Supreme Court of Virginia Opinion (April 23, 2026).…...…App. 1

APPENDIX B:

Virginia Court of Appeals Opinion (March 4, 2025)..…….App. 11

APPENDIX C:

Hearing Transcript of Motion to Suppress, Hampton

Circuit Court (April 21, 2023)…………...………………..….App. 29

APPENDIX D:

Order Denying Petition for Rehearing in the

Supreme Court of Virginia (May 27, 2026)……………….App. 103

v

TABLE OF AUTHORITIES

Cases

Benjamin v. State, 116 So. 3d 115 (Miss. 2013) .......................................................... 16

Blake v. State, 381 Md. 218, 849 A2d 410 (Md. 2004)................................................. 15

Bradley v. Commonwealth, 327 S.W.3d 512, 517 (Ky.2010) ....................................... 16

Collazo v. Estelle, 940 F.2d 411 (9th Cir. 1991) .......................................................... 12

Colorado v. Spring, 479 U.S. 564, 107 S. Ct. 851 (1987) ............................................ 22

Commonwealth v. Fayne, 928 S.E.2d 406 (Va. 2026). ................................................... 1

Commonwealth v. Ferguson, 278 Va. 118, 677 S.E.2d 45 (2009) ............................... 20

Dorsey v. United States, 60 A.3d 1171 (D.C. 2013) ..................................................... 18

Edwards v. Arizona. 451 U.S. 477 (1981). ..................................................................... 2

Fayne v. Commonwealth, 83 Va. App. 686, 911 S.E.2d 842 (2025) .............................. 1

Ferguson v. Commonwealth, 51 Va. App. 48, 654 S.E.2d 328 (2007) ......................... 20

Ferguson v. Commonwealth, 52 Va. App. 324, 663 S.E.2d 505 (2008) ....................... 20

Mack v. State, 296 Ga. 239, 765 S.E.2d 896 (Ga. 2014) .............................................. 18

Maryland v. Blake, 546 U.S. 72 (2006)) ....................................................................... 15

Maryland v. Shatzer 559 U.S. 98, 130 S. Ct. 1213 (2010) .......................................... 22

Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321 (1975)................................................ 19

Miranda v. Arizona, 384 U.S. 436 (1966) ...................................................................... 3

Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141 (1986); ........................... 2

Offutt v. United States, 348 U.S. 11, 14 (1954) ........................................................... 30

Olmstead v. United States, 277 U.S. 438, 72 L. Ed. 944, 48 S. Ct. 564 (1928) .......... 27

Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285 (1985) .............................................. 13

People v. Boyer, 768 P2d 610 (Cal. 1989) ..................................................................... 19

vi

Plascencia v. Estelle, No. 91-55558, 1993 U.S. App. LEXIS 8205, at *1 (9th Cir. Apr.

13, 1993) ..................................................................................................................... 12

Shelly v. State, 262 So. 3d 1 (Fla. 2018)....................................................................... 17

State v. Penna, 385 So. 3d 595 (Fla. 2024) .................................................................. 17

State v. Yo80 Vt. 317, 910 A2d 853, 861 (Vt. 2006) ..................................................... 17

United States v. Anderson, 929 F.2d 96 (2d Cir. 1991) ............................................... 13

United States v. Carpentino, 948 F.3d 10 (1st Cir. 2020) ........................................... 14

Welch v. State, 992 So. 2d 206 (Fla. 2008) ................................................................... 17

Statutes

28 U.S.C. § 1257(a). ........................................................................................................ 1

vii

Petitioner Brian Fayne respectfully petitions for a writ of certiorari to review

the judgment of the Supreme Court of Virginia.

OPINIONS BELOW

The published opinion of the Virginia Supreme Court is at Commonwealth v.

Fayne, 928 S.E.2d 406 (Va. 2026). The opinion of the Court of Appeals is at Fayne v.

Commonwealth, 83 Va. App. 686, 911 S.E.2d 842 (2025). The opinion of the Hampton

Circuit Court was issued from the bench and is not reported, but the transcript of the

ruling is reprinted at App. 29.

JURISDICTION

On April 23rd, 2026, the Supreme Court of Virginia entered an order

overturning the Virginia Court of Appeals and reinstating Fayne’s conviction. On

May 27, 2026 the Virginia Supreme Court entered a final order denying Fayne’s

petition for a rehearing. This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION

United States Constitution, Amendment V, in relevant part: “No person …

shall be compelled in any criminal case to be a witness against himself …”

INTRODUCTION

This case presents an important question left unresolved this Court’s long

history of ensuring accused’s rights under the Fifth Amendment are protected:

whether an accused can voluntarily reinitiate questioning when that purported

reinitiation is the product of a prolonged and egregious Edwards violation. Edwards

1

v. Arizona. 451 U.S. 477 (1981). The holdings and spirit of this Court’s holdings

protecting an accused’s rights under the Fifth Amendment dictate that the police

cannot create the very "reinitiation" required to resume interrogation by continuing

the interrogation that Edwards v. Arizona forbids.

Yet, that is exactly what

happened to Fayne and what was approved by the Virginia Supreme Court, which

held that investigators leaving the room an hour and a half after the illegal

interrogation began qualified as a “cease” in the interrogation, and no further inquiry

or analysis was required beyond finding who reinitiated the conversation; the

Edwards violation had no impact.

On December 18, 2020, Brian Fayne was detained as a suspect in a homicide

in the city of Hampton, Virginia before being advised of his rights and interrogated.

Fayne made a clear and unambiguous invocation of his right to counsel. Nonetheless,

the detectives ignored it and continued to interrogate him. The ensuing Edwards

violation was neither slight nor inadvertent. Instead, for over seventy-five minutes

the detectives egregiously pressure, berate, coerce, and otherwise employ every

interrogation tactic they could to try and secure a confession from him. They told him

they knew he wanted to make a statement, that he would sleep better if he did, and

that this was his only opportunity. They tell him that a lawyer will make things

difficult for him to talk to the detectives, that lawyers might not want him to talk,

and that this would be his last opportunity to talk face-to-face if a lawyer was

involved.

2

They ask him to stand up, tell him to breathe, and then corner him as they

continue to try and get him to talk. Fayne—upset and overwhelmed—says that he

thought he could just make one statement with his attorney there along with the

prosecutor. They tell him that’s not going to happen.

Finally, after nearly an hour and a half after Fayne invoked his right to an

attorney, they give up and leave the room, telling him that there is nothing more they

can do for him. Twenty seconds later, Fayne taps on the door and asks to speak to the

other detective. The Virginia Supreme Court found this to be a voluntary reinitiation.

In overturning the Virginia Court of Appeals and reinstating Fayne’s

conviction, the Supreme Court of Virginia wrongfully applied this Court’s holdings in

Edwards and its progeny, and explicitly held that questioning must only “cease”

without regard to when that cessation actually occurs or whether there was a

violation of rights prior to the cessation. The Supreme Court of Virginia ignored the

prolonged, flagrant violation of Fayne’s rights under Miranda, and erroneously found

this reinitiation to be voluntary. Miranda v. Arizona, 384 U.S. 436 (1966).

Since Edwards, this Court has not ruled on whether a reinitiation can be

voluntary if it occurs only after a significant and prolonged violation of the rule. The

staggering opinion by the Virginia Supreme Court completely ignores the impact of

an Edwards violation on the voluntariness or willfulness of an alleged reinitiation,

and completely ignores the impact of an Edwards violation on a subsequent waiver.

It transforms the Court’s requirement that an innovcation be honored and

questioning must immediately cease, in to a requirement that simply looks to see if

3

there is ever a gap in the interrogation. Furthermore, Virginia’s decision conflicts

with federal appellate decisions and the state supreme court of every state that has

taken up the issue. Therefore, review is warranted by this Court.

STATEMENT OF THE CASE

I.

Factual History

The facts of the case are not in dispute. Fayne was taken into custody on

December 21st, 2020 pursuant to a homicide investigation in the city of Hampton.

Detective Daniel Smith transported Fayne to the Hampton Police Division

Investigations interview room, where the subsequent interrogation was video and

audio recorded. Detective Smith advised Fayne of his rights under Miranda, and

Fayne acknowledged he understood those rights. Fayne initially agreed to speak with

Detective Smith and the other detective in the room.

Throughout the interrogation, Fayne told Detective Smith on multiple

occasions that he was interested in giving a statement but that he would prefer an

attorney to be present when he did so. Detective Smith told Fayne that this would be

his one and only opportunity to the police, as he believed—based on his training and

exerpeince—that an attorney would not allow him to make a statement with him.

Fayne stated that he wanted to make one, single statement in the presence of his

lawyer and the Commonwealth’s Attorney.

At approximately four hours into the interrogation, Fayne emphatically states

“I feel like this is a waste of your time, my time or money towards a

lawyer. That is why I strongly request him here. I hate to do this in

front, but before I give a statement, I’m going to give, even before talking

him to him, I just want him.”

4

The Commonwealth of Virginia conceded that this was an invocation of his

right to an attorney. Detective Smith, on the recording, replied “That’s your choice.”

At the suppression hearing, however, Detective Smith testified that he asked

questions to clarify what Fayne meant. The recording made it clear that this

testimony was untrue, and no such questions were ever actually asked. In fact,

Detective Smith previously failed to honor a suspect’s invocation of a right to an

attorney and previously lied to the Hampton Commonwealth’s Attorney about this

fact. Such information was included in a Brady disclosure to Fayne’s counsel.

After the invocation, the police did not end the interrogation. Instead, the

detectives continued interrogating him for over 75 more minutes. Less than a minute

after the invocation, Detective Smith tells Fayne:

“I know you want to make a statement … I get it. I completely

understand. My only—let me just. Let me say my peace on that.

That is your right. You can tell me at anytime you want one. The

fact is, after we leave this room, I don’t know what’s going to happen.

After we walk out of here, after you go next door, I can’t promise you

that a defense attorney will want to talk to me for even a second.”

Detective Smith then continues the interrogation, explicitly trying to talk

Fayne out of invoking rather than honoring his invocation, saying:

“That’s the

problem. I know you want to make a statement. I think it would be good for your

mental health for you to make a statement. I think you would sleep better if you made

a statement.”

Detective Smith then tells Fayne:

“I know you want it. I think you need it personally, but at the end of

the day that defense attorney can do whatever the hell they want.

5

Money or not, your request or not. … You’re n ot going to have a

direct line to me. I can give you my number, and you can call me,

but” that his father could shred his business card if an attorney was

hired.

Afterward, the detectives tell Fayne1:

§

“This might be the last time you and I have a face to face like this”

§

“You can request it all day, but unless your attorney makes it happen, I don’t

know if he will. That’s why I’m putting so much stress on this one meeting,

because I never get another opportunity”

§

“When we walk out of this precinct, and we go to the magistrate’s office, that

is it.”

§

“If you have an attorney, I can’t just come over and talk to people like that. I

have to go through them.”

§

“You can tell me to pack sand all you want and I’ll shut my mouth and walk

out of here.”

§

“I’ll happily meet with you every day of the week … but that will be up a a

third party [a lawyer]. Whatever a third party does, I have no control.’

§

“You can tell third party A, your lawyer, and he can say “Sure I’ll get right on

that” …That’s why I put so much effort and progress into this room.”

Fayne reiterates his concerns, saying “I don’t want to mess up right now.” Six

minutes after his invocation, both Detective Smith and the other office remain in the

room, continuing with the following:

§

“The statement you want to make, and I’m going to guess, if that’s okay. I’m

thinking the statement you want to make is bout the why? … Why did this

happen? But you don’t want to make a mistake.”

1 The statements by the detectives following Fayne’s invocation, contained

throughout this brief, are not inclusive of every question and statement the

detectives made during the 90 minute period after the invocation.

6

§

“The evidence is the evidence. It speaks for itself.”

§

“You’ve already said you can better elaborate things to me. Say it straight to

me, man.”

§

“Start at the beginning. We are asking for 2 minutes. When Cierra got into

that car, what was said between the two of you?

Approximately twelve minutes after his invocation, Detective Smith exits the

interview room leaving the other officer present with Fayne. The officer also does not

honor Fayne’s invocation, and continues asking questions before Detective Smith

renters 15 minutes later and states the following:

§

“I’m going to be very blunt. Almost mean. Do you think your cards really

matter when you look at just the evidence I’ve shown you?”

§

“You can hold onto cards for a deal later … If we are playing spades, and my

Commonwealth is holding spades, how willing is she going to be to play with

somebody who just has clubs?”

§

Detective Smith asks Fayne whose narcotics were found in their home, his or

his girlfriend’s, saying “I’m not trying to get your girl hooked up in this BS,”

and reminding him that she is pregnant

Detective Carpenter joined the interview and takes a more aggressive approach

with Fayne, telling him “I can’t put words into your mouth about what happened. But

I need to know what happened. So be up front and honest with us. … Help me and

out and tell me what happened, man. Be honest with me.” Detective Smith tells

Fayne, “Tell him the truth, that’s what relieves the pressure.”

Detective Carpenter then stands up, tells Fayne to stand up, and tells him to

breathe. Fayne remains standing in the corner as Detective Carpenter and Detective

Smith corner him. Carpenter tells him “Tell me the story about what happened. Why

7

did you shoot at the car? … You have to explain to us, or you go down as a cold blooded

killer.”

Approximately 50 minutes after the invocation, Detective Carpenter offers

Fayne a cigarette, and Detective Smith offers him water. The detectives say to him:

§

“You gotta talk to me man. I’m going to help you the best I can help you, but

you gotta tell me what’s going on.”

§

“I’m going to give you a fair shake man … Sometimes people make mistakes.

I’m not saying that was a mistake. Maybe there was a reason why that

happened. But I need you to explain to me.”

§

“Once I can get you down the right path of being up front and honest, I can lay

it out for everyone else ... I’m here to help you”

§

“I know it’s tough. But you owe it to that young lady.”

§

“I’m here to help you get out with what you need to get off your chest.”

§

“Explain to me what happened, man.” (5:30:00)

After nearly an hour and a half after he invoked his right to an attorney, and

under consistent and persistent aggressive interrogation, Fayne tells Detective

Carpenter: “He told me he would let me do it all at once,” referring to Detective Smith,

saying he could have a one single interview with the Commonwealth Attorney and his

attorney present. Detective Carpenter tells him “I’m telling you right now that’s not

going to happen.”

Detective Carpenter leaves the room nearly an hour and a half after the

invocation, telling Fayne “There’s nothing else I can do for you Brian.”

8

A few seconds later, Fayne knocks on the door and asks to speak to the

detectives. They do not readvise him of his Miranda right, nor inquire about his

previous invocation. Fayne proceeds to make incriminating statements.

II. The Proceedings Below

On April 21, 2023 the Hampton Circuit Court presided over a Motion to

Suppress, ultimately denying the motion on the grounds that Fayne reinitiated. The

court ruled from the bench rather than issuing a written opinion. A conditional guilty

plea was entered on June 20, 2023, preserving his right to appeal, and Fayne was

ultimately sentenced to thirty-five years of active incarceration on September 18,

2023.

A timely appeal to the Court of Appeals of Virginia followed, where the

appellate court overturned the trial court and found that it was an error not to exclude

Fayne’s statements. Fayne v. Commonwealth, 83 Va. App. 686, 911 S.E.2d 842

(2025). The intermediate court held that the police misconduct tainted the

subsequent confession.

The Virginia Supreme Court accepted the appeal from the Commonwealth and

overturned the Court of Appeals. Commonwealth v. Fayne, 928 S.E.2d 406 (Va. 2026).

That court acknowledged in its opinion that Fayne’s invocation was clear and

unambiguous, and that it was not immediately honored by law enforcement. The

court further recognized that for nearly an hour and a half, Fayne was subjected to

an unlawful interrogation that is well-documented in the audio recording in terms of

the tenor and nature.

9

However, the Virginia Supreme Court held the moment the police left the

room, the interrogation “ceased” for the purposes of Edwards, even though it took an

hour and a half of interrogation following the invocation. When Fayne knocked on

the door 22 seconds later, the Court found that there was no “continued coercion” that

resulted in that reinitiation, and thus found it willing and voluntary.

The court

further held that the subsequent waiver was knowing and intelligent.

In its holding, the Virginia Supreme Court stated:

Edwards does not turn on whether a violation occurred in the first

instance; it turns on what follows—whether the interrogation ceased,

whether the suspect reinitiated communication, and whether a valid

waiver ensued. The premise underlying the Court of Appeals'

analysis—that the initial violation continued to control the

admissibility of Fayne's later statements absent a meaningful cessation

of questioning—is inconsistent with that framework. Id. at 410-411.

The court then held that once the officers left the room, that was cessation,

stating:

The fact “[o]fficers earlier failed to honor Fayne’s invocation of his right to

counsel does not change this analysis. The rule requires that questioning

cease. It does not resolve the admissibility of statements made after

questioning in fact ends. Id.

Petitioner now seeks relief from this Court through the granting of a writ of

certiorari.

REASONS FOR GRANTING PETITION

I.

Lower courts are now split as to whether a reinitiation can be

voluntary if it is the product of a prolonged Edwards violation, and

they are split as to whether a violation precludes a finding that the

invocation was ever honored.

10

The Virginia Supreme Court ruled that once the interrogation ceased,

regardless of the previous prolonged violation, the courts simply needed to look next

as to whether the suspect reinitiated the communication. The court did not consider

the previous violation, and specifically whether the reinitiation was in fact the

product of the violation and thus not voluntary. Though this Court has never ruled

on this issue, several appellate courts and many other state supreme courts have

rendered decisions that conflict with Virginia.

All of those other courts which have been faced with this issue uniformly issued

rulings that split from the Virginia Supreme Court. They found that the courts must

consider whether or not the invocation was in fact honored, and require a

determination as to whether or not the reinitiation and subsequent waiver were in

fact voluntary or the result of the prior Edwards violation. The latter, of course,

would essentially render the reinitiation at the behest of the authorities—as

prohibited by this Court.

A. The Virginia Supreme Court’s decision conflicts with federal

appellate decisions

In Collazo v. Estelle, the Ninth Circuit—sitting en banc in a habeas appeal

from the state court—reversed the lower court and excluded the petitioner’s

statement under a very similar fact pattern, finding that the purported reinitiation

was instead the product of an Edwards violation rather than a voluntary act. 940

F.2d 411, 413 (9th Cir. 1991)(en banc)(cert denied). Collazo was detained by police

on suspicion of murder, and during his interrogation he invoked his right to an

attorney. In response, he was told by the police that by invoking, “It might be worse”

11

for him. Three hours later, Collazo changed his mind about his invocation, was

readvised of his Miranda rights, and agreed to speak.

The Ninth Circuit found that the decision to reinitiate was involuntary because

of the coercive nature of the Edwards violation. Specifically, the Ninth Circuit ruled

that “initiation of the communication leading to the second interrogation was the

product of coercive statements made by the police during the first, illegal

interrogation." Id. at 420. The court found that the detectives conduct was a direct

violation of "the general Constitutional prohibition against coercive interrogation

practices likely to result in involuntary responses." Id. at 419. See also Plascencia v.

Estelle, No. 91-55558, 1993 U.S. App. LEXIS 8205, at *1 (9th Cir. Apr. 13,

1993)(finding appellant's statement and confession were the product of police coercion

and involuntary.)

Compared to this case, the Edwards violation in Collazo was relatively benign.

However, the Collazo decision became the foundation for several of the state supreme

court decisions, discussed infra, that conflict with Virginia’s decision. In its decision,

the court eloquently stated:

“This is a nation where the rule of law prevails, where ends do not

justify inappropriate means. Miranda has been part of our law since

1966. Most law enforcement officers abide faithfully by its

requirements even though they find them on occasion to be

frustrating. As long as Miranda is on the books, it must be respected.

In this case, it was not honored. It was disobeyed." Id. at 419.

The same rationale applies for Fayne, and it warrants review by this Court.

The Second Circuit employs a similar analysis to the Ninth Circuit’s, and one

in which the Virginia Supreme Court rejected. United States v. Anderson presented

12

that circuit with a dissimilar scenario but with a similar overarching legal issue: how

should the court’s manage the taint of police misconduct? 929 F.2d 96, 102 (2d Cir.

1991) In it, the police coerced a first confession and despite being re-Mirandized, a

second confession was ruled to be inadmissible. The court found that

“nothing in the record suggests that the taint clinging to the first

confession was dissipated. No significant time elapsed between the

first questioning [and the second, and] The suspect was at all times

in custody and under close police supervision with the same agents

present on both occasions.” Id. at 103.

The court suppressed the confession, relying on this Court’s holding in Oregon

v. Elstad, 470 U.S. 298, 105 S. Ct. 1285 (1985). Again, while the facts are not

analogous to Fayne, the legal analysis—specifically, determining whether or not the

“taint” of a Fifth Amendment violations extends to the later actions of the accused,

whether it be reinitiation or waiver—appropriately aligned with this Court’s prior

holdings and the overarching purpose of those holdings in deterring coercive police

misconduct. This type of analysis was eschewed by the Virginia Supreme Court in

favor of a mechanical application of Edwards without regard to the taint, and it

justifies review by this Court so that the lower courts have clear guidance in the

future that the taint of an Edwards violation must be examined as it relates to the

reinitiation and waiver.

While there are no factually similar cases in the First Circuit, they have held

that “[t]o qualify for [the reinitiation by the accused] exception, the suspect must

initiate this further communication without coercion or probing.” United States v.

Carpentino, 948 F.3d 10, 21-22 (1st Cir. 2020).

13

B. The Virginia Supreme Court stands alone among state courts

of last resort as well as the DC federal circuit.

Virginia is the only state supreme court to mechanically find that a break of

any sort following an extended violation of the Edwards rule was sufficient to be

viewed as honoring the invocation, and that the reinitiation was voluntary. All other

of the highest courts in other states have ruled that the court must determine

whether the reinitiation was the product of the Edwards violations, including

Maryland, Vermont, Kentucky, Mississippi, California, Florida, as well as the DC

Court of Appeals. In none of those states was the violation as egregious as it is here.

In Blake v. State, Maryland’s high court held that when an accused’s

reinitiation “was in direct response to … unlawful interrogation,” then the accused

did not voluntarily reinitiate and that it was instead “a product of the unlawful policeinitiated interrogation which violated Edwards.” 381 Md. 218, 230 , 849 A2d 410, 417

(Md. 2004) In that case, the accused invoked his right and the police certainly honored

that right by terminating the interview. However, the police brought him to the police

station and told him, “I bet you want to talk now, huh!” after he sees that the penalty

for murder is potentially death. The police then left him for an hour and a half before

he asked if they can talk.

The Blake court held that, “[a]lthough the accused technically may begin a

conversation with the police, if this occurs after the police have interrogated the

accused in violation of Edwards, the voluntariness of such ‘reinitiation’ is suspect and

statements subsequently obtained are inadmissible.’” Id. at 35 (quoting United

States v. Gomez, 927 F2d 1530, 1539 (11th Cir. 1991)) (emphasis added). This is

14

exactly the type of rule that is in accordance with both the explicit holdings and more

importantly the purpose of this Court’s rules from Edwards onward.

Importantly, this Court previously granted a writ of certiorari for Maryland v.

Blake, 546 U.S. 72 (2006)).

However, the case was ultimately dismissed as

improvidently granted. Fayne presents this Court with a new opportunity, under a

straightforward factual scenario to rule on this incredibly important issue. Although

the Court did not reach the merits in Blake, its grant of certiorari underscores the

recurring and substantial importance of the issue and that it is worthy of this Court’s

review. Notably, this writ was granted before any split was present throughout the

states.

Kentucky is also split from Virginia in its holding and analyses on this issue.

While the case of Bradley v. Commonwealth is factually distinct in that it does not

appear there was a break in the interrogation after invocation, the Kentucky

Supreme Court nonetheless addressed the issue in holding that, “the authorities

cannot continue to cajole or otherwise induce the suspect to continue to speak without

first affording the suspect an attorney.” 327 S.W.3d 512, 517 (Ky.2010). There, the

defendant unequivocally stated that “I need a lawyer or something.” The police

continued to unlawfully interrogate him thereafter before he made incriminating

statements. Relying on Bradley, the Kentucky Supreme Court in its unpublished

opinion, Ruff v. Commonwealth, held “[a]n accused's post-invocation reinitiation of

questioning must be independently made, and cannot be considered voluntary if it is

15

the product of police inducement or encouragement.” No. 2011-SC-000640-MR, 2013

WL 1789861 (Ky. Apr. 25, 2013) (emphasis added).

In Benjamin v. State, the Supreme Court of Mississippi held that the trial court

erred in failing to a suppress a statement because the police subjected the defendant

to interrogation after he invoked his right to counsel. Benjamin v. State, 116 So. 3d

115 (Miss. 2013).

In that case, the juvenile defendant invoked his right to an

attorney, but ultimately began to speak with the police again upon pressure by his

mother. The Mississippi high court established as a matter of law that its lower

courts were required to analyze the pressures of post-invocation continued

interrogation in determining whether subsequent reinitiation and waiver were in fact

voluntary.

The Supreme Court in Florida, unlike Virginia, also requires an analysis as to

whether a reinitiation or waiver is actually the product of the violation of the

accused’s rights. In Shelly v. State, the court found that "[the accused's] subsequent

waiver was the product of Detective Consalo's coercively persistent and repeated

efforts to wear down Shelly's resistance and induce Shelly to continue the

interrogation and eventually confess."2 262 So. 3d 1 (Fla. 2018)

In State v. Yoh, the Vermont high court interpreted the Constitution as

requiring that a defendant’s statement would only be admissible if his “[d]ecision to

2 At the time, Florida provided for greater constitutional protections by requiring

police to re-Mirandize suspects upon reinitiation. Welch v. State, 992 So. 2d 206

(Fla. 2008). This requirement was subsequently abandoned by the Florida Supreme

Court. State v. Penna, 385 So. 3d 595 (Fla. 2024)

16

initiate [another] interview was voluntary, and not the product of the coercion that

took place” beforehand. 80 Vt. 317, 910 A2d 853, 861 (Vt. 2006)(emphasis added). Yoh

ultimately concluded that a lapse of time sufficiently attenuated the reinitiation from

the prior Edwards violation. Compare with Dorsey v. United States, 60 A.3d 1171

(D.C. 2013)(finding that reinitiation was the product of the earlier violation despite a

significant lapse in time after the termination of the interview)(discussed infra) The

rule established in Vermont is at odds with Virginia’s analysis where no consideration

is given to determine whether a reinitiation is the product of prior coercion or not.

Similarly, Georgia requires that the courts determine whether the invocation

was ever actually honored in the first place. In Mack v. State, the court ruled:

The determination as to whether the police have scrupulously honored

the defendant's right to remain silent rests in part upon their immediate

response to the defendant's invocation of the right; a showing of respect

for the defendant's right, by immediately ceasing questioning upon its

invocation, is a significant factor in this analysis. 296 Ga. 239, 765

S.E.2d 896 (Ga. 2014).

The District of Columbia’s Court of Appeals ruled on this issue in Dorsey v.

United States, 60 A.3d 1171 (D.C. 2013)(en banc). In a divided en banc decision, they

held that the defendant could not voluntarily reinitiate after a prolonged, grueling

period of unlawful interrogation following a valid invocation. Id. This was despite the

fact that a seven hour break occurred following the termination of the interrogation.

Id. The court stated, “[i]n the present case, of course, the police did not ‘scrupulously

honor’ Dorsey’s Fifth Amendment rights,” and that “to condone such tactics would be

contrary to the principles of Miranda and Mosley.” Id. at 74. (relying in part on Yoh

v. State). See Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321 (1975)(requiring that an

17

invocation to the right to remain silent be “scrupulously honored”) Two judges

dissented in the Dorsey panel, highlighting the uncertainty as to this issue.

Finally, in People v. Boyer, the California Supreme Court faced a factually similar

scenario as Fayne and yet reached the opposite conclusion. 768 P2d 610 (Cal. 1989)

There, Boyer undoubtedly invoked his right to an attorney, and the police undoubtedly

continued to question and interrogate him in violation of that right. When police turned

and left, letting only a few seconds pass by, Boyer called out, “Hey, wait a minute. Come

back here and sit down. You're right, I can't live with it. I did it. I didn't mean to do it.

But I did it." Id. at 619. The detective returned and the interrogation continued. The

California high court refused to find that this was a reinitiation because it was preceded

by an ongoing violation of Boyer’s previously invoked rights.

The Boyer case highlights the split created by Virginia’s decision in Fayne, as it is

remarkably similar in its facts and particularly the timing. In both cases invocation is

clear, the Edwards violation is lengthy, and the time between “termination” and

purported reinitiation is minimal. Yet, the two courts reached dramatically different

outcomes.

Even within Virginia itself, its own state Supreme Court has now issued

conflicting decisions in an identical factual scenario without overruling the prior

decision. While this is not in and of itself a reason for this Court to grant review, the

Virginia Supreme Court created uncertainty within its own state and misapplied

federal law, further demonstrating that there is no consistent rule for dealing with

prolonged Edwards violations. Specifically, the Virginia Supreme Court’s holding in

this case contradicts its own holding in Commonwealth v. Ferguson, 278 Va. 118, 677

18

S.E.2d 45 (2009)(affirming Ferguson v. Commonwealth, 52 Va. App. 324, 663 S.E.2d

505 (2008)(en banc)(Ferguson v. Commonwealth, 51 Va. App. 48, 654 S.E.2d 328

(2007)).

The facts of Fayne and Ferguson are identical: in both cases the accused

invoked his right to a counsel and the police deliberately ignored it. In Ferguson, as

here, the detective then stepped out of the room only for suspect to knock on the door

and allegedly reinitiate. Unlike in Fayne, though, in Ferguson, the court held that it

was “one continuous custodial interrogation conducted in such a manner as to

deliberately disregard a clear, unambiguous and unequivocal invocation of the right

to counsel and coerce Ferguson to incriminate himself.” There was no meaningful

factual distinction between the facts of Fayne and Ferguson.3 In discussing the

reinitiation, the Supreme Court of Virginia in Ferguson held:

“Whatever the significance of Ferguson’s comments that broke the

silence, they were the product of the coercive interrogation and

environment created by police. Surely, police may not use the product

of such techniques as proof of a voluntary reinitiation of

communication and subsequent waiver of the right to counsel.” Id.

(emphasis added)

Ferguson has not been overruled. In fact, it was cited and relied upon by the

D.C. Court of Appeals in Dorsey. The very fact that Virginia’s own highest court is

inconsistent in its application of Edwards, particularly when faced with an identical

3 While in Ferguson there was a silent, non-interrogator who remained in the room,

even the dissenting opinions in the affirmed Court of Appeals case recognized that

“[his] unbroken silence was [not] the functional equivalent of an interrogation. It

would take a remarkably potent -- and, to date, unprecedented -- legal fiction to

deem an utterly mute police officer as the functional equivalent of an interrogator.”

52 Va. App. 324, 663 S.E.2d 505 (2008)(dissent)

19

fact pattern, is further evidence that this issue is of such importance that the writ

for review should be granted.

No other state Supreme Court has ruled similarly to Virginia. No other state

allows the lower courts to ignore the Miranda and Edwards violations and not

consider it at all in the analysis as to whether or not a reinitiation or waiver was in

fact voluntary. Virginia’s split from federal interpretation and the interpretations of

the courts of last resort from its sister states warrants review by this Court,

particularly in light of the importance of this Constitutional issue on future accused.

II. The Supreme Court of Virginia erred by holding that an accused’s

reinitiation may be voluntary when it follows from continued

interrogation after invocation.

Simply put, Virginia’s Supreme Court does not view Edwards’ as requiring

that an interrogation cease immediately. Instead, it ruled that the interrogation did

“cease”—albeit an hour and a half later—and that afterwards Edwards merely

requires the court to next determine who reinitiated the communication.

The

violation had no impact on the analysis. The decision of the Virginia Supreme Court

stands in stark contrast to the decisions, and the purpose behind those decisions, by

this Court.

In Moran v. Burbine, this Court wrote “[t]he relinquishment of the right must

have been voluntary in the sense that it was the product of a free and deliberate

choice rather than intimidation, coercion, or deception.” 475 U.S. 412, 421, 106 S. Ct.

1135, 1141 (1986); see also Colorado v. Spring, 479 U.S. 564, 107 S. Ct. 851 (1987).

Further, this Court has continuously noted the inherent coercive nature of police

20

custody and interrogation, which was a driving factor behind the initial Miranda

decision and the cases thereafter. See Maryland v. Shatzer 559 U.S. 98, 130 S. Ct.

1213 (2010). The coercive nature of Fayne’s unlawful hour-and-a-half interrogation

were not merely inherent though; they were outright, prevalent, and ongoing.

Yet, the Virginia Supreme Court disregarded this Court’s holdings regarding

that coercive nature and found that once the detectives left the room, the analysis

simply moved on to the first prong of the Edwards test without consideration of that

prior extensive violation. The Virginia high court explicitly stated that “Edwards

does not turn on whether a violation occurred in the first instance; it turns on whether

the interrogation ceased, whether the suspect reinitiated communication, and

whether a valid waiver ensued.”

In other words, they applied a mechanical

application of Edwards to the actions of Fayne without regard to whether those

actions were a product of the unlawful interrogation.

They found that once the

interrogation ceased, the only question left was to determine whether Fayne was the

one who reinitiated; there was no analysis as to whether or not the unconstitutional

interrogation had any impact on his decisions, or whether the cessation needed to be

immediate or not.

This was error. The Virginia Supreme Court was required to determine if the

reinitiation was in fact voluntary or at the behest of the authorities through that

prolonged violation of his rights, and the Court further was required to assess

whether or not the police in fact honored his invocation in the first place. (emphasis

added). As Justice Scalia wrote in Maryland v. Shatzer, “[i]t is easy to believe that a

21

suspect may be coerced or badgered into abandoning his earlier refusal to be

questioned without counsel in the paradigm Edwards case.” Id. at 98.

The Virginia Supreme Court opinion begins with “[t]his case turns on

sequence. Fayne invoked his right to counsel. The police continued questioning in

violation of Edwards. The interrogation then ended. Fayne—not the police—resumed

communication.” Fayne at 409. However, this Court has always required that the

analysis involve a totality of the circumstances, and that attention be given to the

“lingering effects” of custody. Instead, Virginia created a new legal rule inapposite to

this Court’s holdings and analyses, wherein the court mechanically analyzes the facts

in sequence under Edwards without regard to the impact of the violation in

considering either voluntariness or whether the invocation was in fact ever honored.

Worse, the Virginia Supreme Court’s interpretation of Edwards does not require the

police to cease the interrogation immediately; an hour and a half later is sufficient.

In fact, a proper mechanical analysis would have ended the inquiry entirely

upon a finding that Fayne’s invocation was never honored. Instead, the Virginia

Supreme Court foundt that once the interview “ceased”, despite that cessation being

an hour and a half after the invocation, the Court simply needed to only analyze who

reinitiated communication without regard to the violation or its coercive impact. This

new rule should be reviewed by this Court.

A. Reinitiation cannot be voluntary when it is the product of a

prolonged Edwards violation

When law enforcement willfully violates the rights of an accused in their

custody over an extended period of time, and in a manner that is undoubtedly police

22

misconduct, the goal is clearly to persuade and coerce the accused into giving a

statement. Here, the police gave up and left the room. The Supreme Court of Virginia

viewed this as sufficient to be considered “ceased”, and an honoring of his right. The

court treated the break in time of 20 seconds a sufficient termination of the interview.

So because it was Fayne who knocked on the door, the Fayne court simply looked to

see who initiated the re-interview rather than considering the prior circumstances

and the taint of the Edwards violation.

In fact, the Virginia Supreme Court wrote that there was no “continued

coercion.” In writing these words, they implicitly recognized that the 90 minutes

preceding the knock on the door was in fact rife with coercion. How can it be said

then that Fayne’s decision to knock on the door was not the product of that coercion?

It appears as if the Virginia Supreme Court would only take issue with the

“reinitiation” if the officers were actively on the other side of the door encouraging

him to knock. This is an absurd thought, of course, but it demonstrates that the

lengthy and extreme Edwards violation in this case must have had an impact on

Fayne.

If they honored his invocation in the first place, he likely would have been

brought before a magistrate and then moved into custody until an attorney was hired

or appointed. If, during that time his rights were honored, he decided to reinitiate

conversation with the police then it would fall squarely within Edwards. However,

his decision to knock on the door just twenty second after a lengthy illegal

interrogation, and the subsequent statements which were made, was plainly the

23

result of the detectives coordinated effort to disregard his rights and violate Edwards,

and ultimately they were not voluntary. The taint of the earlier misconduct cannot

be separated from his actions in such a brief period of time, and this Court should

grant review to address Virginia’s error.

B. The requirement that police honor an invocation imposes an

affirmative and immediate duty to cease the interrogation.

More importantly, the requirement that an interrogation “cease” nearly

explicitly requires that the cessation be immediate. The Supreme Court of Virginia

found that a cessation occurring after 90 minutes of unconstitutional interrogation

was sufficient, and that the next step in the analysis was to look at who reinitiated

the communication. The Virginia Supreme Court essentially applied Edwards in a

mechanical fashion without a full consideration of the full circumstances.

Once the detectives left the room, the court viewed that as an honoring of

Fayne’s right4.

Because it was Fayne, and not the police, who reinitiated the

conversation the court then next found that they could proceed to a waiver analysis.

Addressing the right to remain silent, this Court in Mosley found that an invocation

must be “scrupulously honored.” 423 U.S. 96, 96 S. Ct. 321 (1975). Those words have

import. The invocation must not merely be honored, but “scrupulously” so.

The

Mosley court could have simply used the term “honored,” but it did not.

“Scrupulously” must have meaning rather than being surplusage.

Notably, the detective at the suppression hearing testified that he did not actually view any of

Fayne’s statements as an invocation.

4

24

The same logic applies for the right to counsel, an arguably more scrupulously

protected right. The cessation must be immediate.

This is an affirmative and

immediate duty incumbent upon the police, not a duty delayed by an hour and a half

of unlawful interrogation.

Justice Brandeis once wrote in a dissent:

In a government of laws, existence of the government will be imperiled if it

fails to observe the law scrupulously. Our Government is the potent, the

omnipresent teacher. For good or for ill, it teaches the whole people by its

example. Crime is contagious. If the Government becomes a law-breaker, it

breeds contempt for law; it invites every man to become a law unto himself; it

invites anarchy.

Olmstead v. United States, 277 U.S. 438, 485, 72 L. Ed. 944, 48 S. Ct. 564

(1928):

In Maryland v. Shatzer, one of the factors that this Court considered in

determining whether there was violation under Edwards was whether the accused

“regained a sense of control or normalcy after they were initially taken into custody

for the crime under investigation.” 559 U.S. 98, 130 S. Ct. 1213 (2010). This was in

the context of a suspect who was arrested, invoked, and importantly his invocation

was immediately honored. He was then released from custody. The court established

a brightline 14-day rule because it “provides plenty of time for the suspect to get

reacclimated to his normal life, to consult with friends and counsel, and to shake off

any residual coercive effects of his prior custody.” Id. at 110.

This case now presents a different scenario that is worthy of judicial review

by this Court. Fayne was taken into custody and stripped of the “normalcy” described

by the Shatzer court. However, his rights were ignored, and for an hour and a half

25

he was coerced and aggressively interrogated. There can be no doubt that the mere

22 seconds he was left alone prior to knocking was insufficient to “shake off” the

coercive effects of custody that this Court is often concerns with. Ultimately, the

police failed to observe the law. They outright disregarded it. Any ambiguity as to

the obligations and duties of a police officer, and what “honored” truly means, should

be ruled upon by this Court.

III. This Court has never resolved whether an accused may voluntarily

reinitiate questioning after police have failed to actually honor an

invocation of counsel.

This Court has long recognized the coercive nature of police custody, and the

inherent pressures upon the accused.

This recognition led to Miranda, then to

Edwards, and the long line of cases that expanded or explained the afforded

protections. This case presents two separate yet interrelated issues that have never

been resolved by this Court, and which are the split seen now in Virginia with the

other state supreme courts and federal court. First, under Edwards can an accused

voluntarily reinitiate questioning if it after an extended violation? And second, what

is the definition of an honored invocation? If a detective terminates an accused’s

invocation, but only after an hour and a half of violating his rights, is that considered

“honored?” Certainly in the context of the right to remain silent that would not be

“scrupulous.”

Several states have adopted an analysis that goes beyond Mosley,

explicitly finding one factor to consider in determining whether the invocation was

scrupulously honor” “rests in part upon their immediate response to the defendant’s

26

invocation of the right.” Mack v. State, 296 Ga. 239 765 S.E.2d 896 (Ga. 2014). The

very same analysis applies to the invocation of the right to counsel.

The conflict between Virginia’s holding and the holding of the other state

supreme courts, as well as the federal opinion, is indicative of a clear ambiguity as it

relates to Edwards.

A. This case is an ideal vehicle to resolve this important and

recurring question

The facts of this case reflect exactly the type of police misconduct and coercive

behavior that this Court has sought to deter and eliminate since 1936, and the issue

is clearly presented for review under the facts. See Brown v. Mississippi, 297 U.S.

278, 80 L. Ed. 682, 56 S. Ct. 461 (1936) (use of a defendant's coerced confession in a

state criminal trial denies due process).

First, there is no question that Fayne

invoked his right to counsel; Virginia conceded this point at every stage of the

proceedings. Second, and most importantly, the Edwards violation here was not a

brief or spontaneous instance from the police, but rather it was a lengthy and

egregious period after Fayne’s invocation where the police simply did not care. The

police yelled at Fayne, berated him, coerced him, and intimidated him over a 75minute span.

Similarly, the “break” in the interrogation was de minimis. Unlike other state

supreme court decisions where the time between the actual end of the interrogation

and the purported “reinitiation” was several hours long, here the break was a mere

twenty seconds. See, e.g., Dorsey. There thus can be little room for reasonable minds

to disagree as to whether or not this was a sufficient time for the “lingering effects”

27

of the coercive nature of not only custody, but more importantly the extended

violation of Fayne’s right through an aggressive and prolonged interrogation, to

dissipate. See Maryland v. Shatzer, 559 U.S. 98, 209 (2010)

The facts of this case therefore cleanly and squarely frame the question for the

Court: can a reinitiation be voluntary after an extended Edwards violation, and can

an invocation truly be considered honored if it is only after that extended Edwards

violations. There is little room for debate as to the extent of the Edwards violation,

and therefore the issues to potentially resolve before this Court are pinpointed for

review.

This Court already signaled the importance of this issue by previously granting

a writ in Maryland v. Blake, before its dismissal as improvidently granted. While the

rationale behind that dismissal are unknown, the facts of this case are

straightforward and ripe for review.

Finally, Fayne has been accused, and is now convicted and sentenced, for the

most serious of crimes and faces thirty-five years of incarceration. The rights provided

by the Constitution apply to all persons, no matter the severity of the charge or the

underlying facts and circumstances. This is exactly the type of case that is worthy of

review, as the implications of a Court’s ruling extend far beyond Fayne but to

countless accused in the future, as well as law enforcement and the duties imposed

upon them by the rule of law.

IV. The decision below permits police to circumvent Edwards’s

protections by continuing interrogation in hopes that a suspect later

reinitiates.

28

This is a particularly important case. The implications of the Virginia’s decision

upon law-enforcement agencies in Virginia and their tactics potentially turns back the

clock on nearly a century of appellate decisions and reforms aimed specifically to curb

that very misconduct. Justice Frankfurter wrote the oft cited maxim that “justice

must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1954).

Yet, the Virginia Supreme Court’s holding in Fayne absolves the police of egregious

and repugnant misconduct. For approximately ninety minutes, the police engaged in

deliberate, coordinated, and systemic wrongdoing by ignoring Fayne’s invocation,

coercing him, and aggressively interrogating him with the single goal of a confession.

There was never, at any point, a deterrence upon their misconduct.

This exact concern was addressed by California in Boyer, where the stated

unsuccessfully argued that Boyer “ended the encounter by turning away, defendant

must be deemed to have initiated a new conversation by calling [him] back.” Id. at

625. The California Supreme Court rejected this, finding that, “[o]ur concurrence in

that view would violate the spirit of Edwards. It would allow circumvention of the

prophylactic rule against new approaches by the authorities once the suspect has

invoked his Miranda right to counsel.” Id. at 625.

However, Virginia now signals to law enforcement that they are free to

deliberately ignore an invocation and engage in prolonged coercive interrogation as

they please, with the hope that the suspect knocks on the door a few seconds later if

he changes his mind. Then, they are free to reenter the room, not re-Mirandize the

suspect, and continue to engage in aggressive questioning despite the earlier

29

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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