decided: October 30, 1980; As Amended November 12, 1980.
Before Seitz, Chief Judge, Adams, Circuit Judge, and Weiner, District Judge.*fn*
This is an appeal by the government from an interlocutory order of the district court, 487 F. Supp. 562, granting the motion of the defendant, Rigoberto Mesa, to suppress a tape-recorded conversation between Mesa and an FBI agent. Jurisdiction is based on 18 U.S.C. § 3731 (1976).
The facts are undisputed. On January 28, 1980, Karin Little, Mesa's "common-law" wife, and Sonia Mesa, his daughter, were shot and wounded. Later that day, the victims, both of whom survived, informed the FBI that Mesa had inflicted their injuries. The FBI was unable to locate Mesa on January 28 and obtained a warrant for his arrest from a United States Magistrate the next morning. At approximately 2:00 p. m. on January 29, three FBI agents went to the El Sombrero Motel in Brown Mills, New Jersey and inquired about Mesa. They learned that Mesa had barricaded himself in his room sometime before 10:00 a. m. that day. The agents evacuated the rooms on each side of Mesa's room and blocked off traffic in the vicinity.
The agents then called to Mesa through a bullhorn, informed him that they were FBI agents, that they had a warrant for his arrest, and that he should come out with his hands raised. Mesa did not respond. The agents repeated their statement between ten and twelve times over the course of approximately one hour, but Mesa still did not respond. During this period, additional law enforcement officials arrived at the scene. Eventually, between twenty-five and thirty officers surrounded the motel.
The agents believed that Mesa was armed, and they did not know whether he had hostages. Because they deemed it inadvisable to forcibly take Mesa into their custody, the agents requested the assistance of Special Agent Theodore Viater, the FBI's hostage negotiator for the area.
When Agent Viater arrived, the agents decided that because there was no commercial telephone in Mesa's room it would be necessary to use a mobile telephone to talk with Mesa. An FBI agent then used the bullhorn to ask Mesa if he would take a telephone receiver into the room to talk with Viater. Mesa indicated by hand signals that he would take the phone.*fn1
Viater and Mesa then conversed over the mobile phone for approximately three and one half hours. This conversation primarily involved long narrative monologues by Mesa, with Viater passively listening. Viater had been informed that Mesa had been under psychiatric care and that he might have suicidal tendencies. The comments Viater made during the conversation were supportive and seemed designed to keep Mesa talking in order to establish a relationship of trust. The following comment is representative:
I'm concerned about you Rigoberto, I'm concerned about your welfare, and I'm concerned about your health and I want to make absolutely certain that you and I trust each other and we can bring this problem to a successful solution.
During this conversation, Mesa discussed his experiences in Vietnam, his relationship with his family during his childhood in Cuba, his relationship with his "common-law" wife and children, other events of his life, and the events surrounding the shooting on January 28. Viater generally limited his interjections into this narrative to comments such as "Umhum" and "I understand," with an occasional question concerning Mesa's most recent statement or a longer comment evidencing understanding for Mesa's situation. Viater hoped that by establishing this atmosphere of trust he could convince Mesa to surrender without harming himself or any of the officials in the area.
Mesa finally surrendered peacefully at approximately 6:30 p. m. At this point, the FBI agents gave Mesa the warnings specified in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After he had surrendered, Mesa thanked Viater for listening to him and stated that he would have killed himself had it not been for Viater.
At no time during the taped conversation did Viater give Mesa Miranda warnings. Mesa argues that the contents of the conversation should be suppressed because of the failure to give these warnings. The district court conducted a hearing on Mesa's motion to suppress on April 3, 1980. It held that the taped conversation must be suppressed because Viater's conversation with Mesa constituted "custodial interrogation" within the meaning of Miranda. I now will consider whether the FBI's conduct was "custodial interrogation" as contemplated by the Miranda Court.
Miranda held that when the government conducts a "custodial interrogation," it may not introduce statements made by the defendant at this interrogation unless he first had been given the now-familiar Miranda warnings.*fn2 This court has recognized that "custodial interrogation" is not susceptible of an exact definition; thus the determination whether statements are the product of such "custodial interrogation" must be made on a case-by-case basis. See Steigler v. Anderson, 496 F.2d 793, 799 (3d Cir.), cert. denied, 419 U.S. 1002, 95 S. Ct. 320, 42 L. Ed. 2d 277 (1974); United States v. Clark, 425 F.2d 827 (3d Cir.), cert. denied, 400 U.S. 820, 91 S. Ct. 38, 27 L. Ed. 2d 48 (1970). Because the application of Miranda to the present fact situation is novel, I think that it is necessary to examine the precepts underlying the Miranda rule to determine whether this evidence must be suppressed, rather than relying on a more rigid definitional approach.
Miranda warnings are designed to protect against the evils of "custodial interrogation," and they are not intended to unduly interfere with a proper system of law enforcement or to hamper the police's traditional investigatory functions. See Miranda v. Arizona, 384 U.S. at 481, 86 S. Ct. at 1631, 16 L. Ed. 2d 694. Therefore, the warnings need be given only "when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning." Id. at 478, 86 S. Ct. at 1630. Since Miranda, the Court has indicated that to determine whether there has been a "custodial interrogation," a court must make two discrete inquiries. First, it must determine whether the suspect was in "custody." See Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969). If the suspect was in "custody", the court then must decide whether the police interrogated him. See Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). Therefore I will look to the Miranda decision itself and the meaning the Court ascribed to "custody" to determine whether Mesa was in the custody of the FBI.
In Miranda, the Supreme Court reviewed four cases to determine whether the police had violated the criminal defendants' fifth amendment privilege against self-incrimination. The Court recognized that each of these cases involved "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights." 384 U.S. at 445, 86 S. Ct. at 1612, 16 L. Ed. 2d 694. The Court reasoned that Miranda warnings were required in this setting to inform a suspect of his rights in order to protect him from the compulsion inherent in in-custody interrogation. The Court considered this protection necessary to ensure that any statement he made was the product of free choice.
The Court examined in detail the "in-custody" setting in which the warnings were needed to protect a suspect from police interrogation. The Court first recognized that physical coercion during interrogation was sufficiently widespread to be the object of concern, but it emphasized that the "modern practice of in-custody interrogation is psychologically rather than physically oriented." 384 U.S. at 448, 86 S. Ct. at 1614, 16 L. Ed. 2d 694.
The fact that in-custody interrogation takes place in private was central to the Court's decision that Miranda warnings were necessary to ensure that statements made by a suspect during interrogation are the product of free choice. The Court noted that the private nature of police interrogation results in secrecy and thus makes it impossible for a court to determine exactly what transpires in interrogation rooms. More important, the Court recognized that police interrogation manuals inform interrogating officers that privacy is the "principal psychological factor contributing to a successful interrogation." 384 U.S. at 449, 86 S. Ct. at 1615, 16 L. Ed. 2d 694 (quoting Inbau & Reid, Criminal Interrogation and Confessions 1 (1962)).
The Court reviewed different interviewing techniques discussed in the police manuals that trade on the suspect's insecurity about himself or his surroundings-insecurity that is greatly exacerbated by the fact that he is alone with the law enforcement official who is interrogating him. The Court was concerned about the interrogator's ability to employ these interviewing strategems and thus compel the suspect to incriminate himself. The Court described the atmosphere of "custodial interrogation":
To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed.... It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights.
Id. at 455, 86 S. Ct. at 1617 (emphasis added). The Court felt that the suspect's isolation in this police-dominated atmosphere mandated that his statements not be admitted into evidence unless warnings had been given before the interrogation.
The evils inherent in this custodial setting were the secrecy involved, the fact that the interrogator was alone with the suspect and thus could employ any number of subtle psychological pressures, and the fact that the suspect's will was much more likely to be worn down when he was interrogated while alone in an atmosphere controlled by the police. Therefore, the key aspect of the custodial setting as described in Miranda is the isolation of the suspect in a room that is dominated by the law enforcement officials who will interrogate him. In this setting, the police have immediate control over the suspect-they can restrain him and subject him to their questioning and apply whatever psychological techniques they think will be most effective. As the Court noted, "(a)n individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak." Id. at 461, 86 S. Ct. at 1621. Moreover, in this setting, it is feasible for the police to give the suspect these warnings; they need not be concerned that giving these warnings may have devastating ramifications.
The circumstances under which Mesa talked with Viater can be distinguished from the custodial setting that concerned the Miranda Court. Mesa successfully had barricaded himself in his motel room in such a way that he prevented the law enforcement officials from exercising immediate control over his actions. They could not compel Mesa even to listen to any questions they might want to ask, much less subject him to the interviewing techniques or "tricks" that concerned the Miranda Court. They had no power to handcuff him or use other reasonable means to confine him in such a manner that he had no choice but to listen to questioning.
The conversation between Mesa and Viater did not occur in a setting where Viater was alone in a room or other enclosed area with Mesa and thus had eliminated all possible distractions. Mesa was free to terminate the phone conversation at any time, either completely or temporarily whenever he was tired of talking. The tape transcript indicates that, although Viater wanted to keep the conversation going to ensure that Mesa would not harm himself, he was always agreeable when Mesa wanted to take a break and would interrupt those breaks only to determine that Mesa had not harmed himself. Mesa in fact took several breaks to smoke cigarettes and to rest.
The FBI agents not only were prevented from controlling the timing of the conversation with Mesa, they also could not control its substance. Mesa was not in a police-dominated atmosphere in which the police could dictate the subjects to be discussed. In this situation, Mesa himself controlled the direction of the conversation and he was free to discuss anything he wanted. There is no indication on the tape that Viater attempted to control the direction of Mesa's conversation*fn3 in fact, the facts indicate that Viater could not have forced Mesa to even listen to, much less respond to, any particular line of questioning. The FBI therefore did not have the same power to wear down Mesa's will that the Miranda Court believed was present in a custodial setting. Until Mesa had surrendered, any attempt by the FBI to compel him to incriminate himself through either a display of power or the use of psychological tricks would have been extremely dangerous.
Law enforcement officials, when confronted with a situation such as the one in this case, do not have the same psychological advantage over the suspect that is present in "custodial interrogation" as described by the Miranda Court. The suspect may hold the police at bay by threatening to harm himself, any hostages he might have, or any of the officials outside his room. If he allows the police to establish a line of communication with him, as Mesa did in this case, he retains control over the timing and substance of these conversations. Although the police may have some psychological advantage by virtue of the fact that if the suspect chooses to leave the motel room he will be placed under arrest, the suspect in this situation, unlike the suspect in a custodial setting, retains the psychological advantage of being able to "call the shots" to some degree.
The custodial setting described by the Miranda Court was one in which the suspect was isolated in a police-dominated atmosphere where the police had immediate control over the suspect and thus could easily compel him to incriminate himself. Having barricaded himself inside the motel room with a gun, Mesa was not in such an atmosphere when he decided that he wanted to talk with Viater. I therefore conclude that Mesa was not in "custody" within the meaning of Miranda.
I do not retreat from this conclusion because the presence of law enforcement officials surrounding the motel restricted Mesa's freedom to leave the motel. The defendant argues that this fact establishes "custody" because Miranda requires warnings when the suspect is taken into custody or "otherwise deprived of his freedom by the authorities in any significant way." 384 U.S. at 478, 86 S. Ct. at 1630, 16 L. Ed. 2d 694. The defendant further points out that subsequent cases have interpreted this language to focus on the suspect's freedom to leave. This broad language, however, as well as its interpretation in subsequent cases, must be read in conjunction with the Miranda Court's discussion of the custodial setting that formed the basis for the Miranda decision.
Supreme Court decisions after Miranda have relied on this broad language to determine whether the suspect was in "custody." See Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977) (per curiam); Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969). In these cases, the Court construed this language as focusing on the suspect's "freedom to come and go as he pleased." In Orozco, police officers interrogated the defendant in his bedroom at approximately 4:00 a. m. The Court held that, because the defendant "was not free to go where he pleased but was under arrest," 394 U.S. at 325, 89 S. Ct. at 1096, 22 L. Ed. 2d 311, this was "custodial interrogation" despite the fact that it occurred at the defendant's home and not at the police station. In Mathiason, the Court held that the defendant had not been subjected to "custodial interrogation" even though he had been questioned at the police station for approximately one half hour. Although the defendant was interrogated while he was alone in the police station, the presence of other factors convinced the Court that he was not in "custody." He had come to the station voluntarily upon the police's request; he was told that he was not under arrest, that he was free to leave, and he actually left after the questioning. Therefore statements he made during this interrogation were admissible despite the absence of Miranda warnings.
The Court's focus in these cases on the suspect's freedom to come and go as he pleases must be considered in conjunction with the concerns underlying the custody requirement detailed above. The Miranda Court's description of the custodial setting demonstrates that, at a minimum, the police must have immediate control over the suspect. Mathiason and Orozco stand for the proposition that when the police have a suspect within their immediate control, the proper inquiry to determine whether he is in "custody" is not to ask if he was at the police station, but to ask if he was free to leave. My decision in this case is not inconsistent with this analysis.*fn4
In Mathiason and Orozco, each defendant was within the immediate control of the police when he was interrogated. The police could physically compel him to listen to their questions, or subject him to the psychological ploys that concerned the Miranda Court. The Court determined that Miranda warnings were not required in Mathiason but were required in Orozco because the defendant in the former case could come and go as he pleased while the defendant in the latter case could not. Once the police have immediate control over a suspect, if he cannot leave and thus avoid their control, then the potential for the intimidation of his will that concerned the Miranda Court is present-he is being interrogated in a police-dominated atmosphere. If, however, the police have not yet isolated the suspect in a police-dominated atmosphere where they have immediate control over him, the question whether he is free to leave need not be reached.
Because Mesa, by barricading himself in his motel room with a gun, successfully prevented the FBI from exercising any control over his immediate actions or forcing him to be subjected to their questioning, he was not in custody within the meaning of Miranda. I do not reach the inquiry whether he was free to leave because the FBI could not exercise the type of control over Mesa that the police did in Orozco and Mathiason. The fact that Mesa ...