standard procedure because an agent never never delivers to a defendant an article of clothing which might contain weapons or narcotics without first searching the garment. Tr. 18. In the pocket of the coat, Agent Cucinelli found two $ 20 bills, Tr. 25, which were identified to be pre-recorded money used in the narcotics transaction that preceded the execution of the search warrant. Tr. 14, 18, 25.
It is well-settled that not every question asked in a custodial setting constitutes "interrogation" such that Miranda warnings need be given. See, e.g., United States v. Gonzalez-Mares, 752 F.2d 1485, 1489 (9th Cir. 1985). The Supreme Court has stated that "interrogation" for Miranda purposes encompasses "only words or actions on the part of police officers that they should have known were reasonably likely to produce an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 302, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). "The questions asked must have been both likely to elicit an incriminating response and to produce psychological pressures that will subject the individual to the "will" of his examiner. United States v. Morales, 834 F.2d 35, 38 (2d Cir. 1987); see also, United States v. Cota, 953 F.2d 753, 758 (2d Cir. 1992) ("only questioning that reflects a measure of compulsion above and beyond that inherent in custody itself constitutes interrogation the fruits of which may be received only after Miranda warnings have been given"). In this Circuit, "routine questions . . . ordinarily innocent of any investigative purpose do not pose the dangers Miranda was designed to check." United States v. Carmona, 873 F.2d 569, 573 (2d Cir. 1989) (citing United States v. Gotchis, 803 F.2d 74, 79 (2d Cir. 1986). Questions "normally attendant to arrest and custody" ordinarily do not constitute interrogation. Gotchis, 803 F.2d at 79. In analyzing whether the question asked by Agent Cucinelli was interrogative, we must consider the totality of the circumstance surrounding his actions. Cota, 953 F.2d at 758. "The subjective intent of the agent is relevant but not conclusive" and "the relationship of the question asked to the crime suspected is highly relevant." Gonzales-Mares, 752 F.2d at 1489.
Under the foregoing totality of the circumstances test, we cannot find that Agent Cucinelli's question regarding ownership of the coat constitutes "interrogation" under Miranda and its progeny. Initially, we note that Agent Cucinelli's actions with respect to Vigo are highly probative of his motivation in inquiring as to the coat located near Casiano. After reading Vigo his Miranda rights and requesting his cooperation, Agent Cucinelli asked Vigo, who was inappropriately dressed for the weather outside, whether he had any clothes he wished to change into before being taken outside. He followed precisely the same routine with Casiano. Thus, in a circumstance where no possibly incriminating evidence was available nearby (i.e., the interaction with Vigo), Agent Cucinelli behaved exactly in accord with the motivation to which he ascribed his questioning of Casiano regarding the coat. Agent Cucinelli's behavior, then, comports with his testimony regarding his subjective intent in posing the question.
Second, we must emphasize that merely because Casiano's answer to Agent Cucinelli's question ultimately provided incriminating information does not in itself render the question interrogative. See, e.g., Carmona, 873 F.2d at 573-74 (declining to suppress defendant's use of an alias in response to an officer's inquiry as to his name, even though defendant contended that the officer knew suspect's name and that he used aliases, because officer's inquiry was meant to gather ordinary administrative information); Gotchis, 803 F.2d at 79 (finding that defendant's statement that he had been unemployed for eight years, which ultimately proved incriminating insofar as it indicated intent to distribute drugs, was admissible because such information is in most instances innocent and useful in the booking and arraignment of defendants).
Finally, there is simply insufficient evidence that, based on the information Agent Cucinelli possessed at the time he posed the question, he should have known Casiano possessed a coat. As noted, he testified that he was not at the premises prior to Casiano's arrival, did not have a physical description of Casiano prior to execution of the search warrant, and had been given no specific information that Casiano was wearing or possessed a coat. Tr. 52. Casiano suggests that because Agent Cucinelli's team, which consisted of a confidential informant ("CI") and an undercover agent ("UC"), would subsequently describe Casiano, and because the cold weather on November 3 would likely cause such description to include a coat, Agent Cucinelli "should have known that the coat was reasonably likely to dovetail with a physical description of the drug seller." Def. Br. at 3. This contention assumes speculation on the part of Agent Cucinelli that is simply not contemplated under the totality of the circumstances test we are compelled to employ here. First, it presumes that Agent Cucinelli knew at the time of the question that the UC saw Casiano enter the building, a presumption contradicted by Agent Cucinelli's testimony. Tr. 51. Second, Casiano's argument requires Agent Cucinelli to have speculated both as to who would later give him a description of Casiano (the UC or the CI) and whether that description would derive from a sighting which occurred before or after Casiano entered the building.
Nor is there any merit to Casiano's argument that Agent Cucinelli should have known that his question was reasonably likely to elicit an incriminating response because "a coat worn by the suspect during the transaction, which began outdoors in the cold weather, would surely seem a likely place to look for the marked money." Def. Br. at 3. This assertion ignores that Agent Cucinelli had no evidence that the transaction took place outdoors. Tr. 51. Nor did Agent Cucinelli have any reason to believe that Casiano wore a coat during the transaction, or even had a coat in his possession-- the first time Agent Cucinelli encountered Casiano, in the apartment, Casiano was not wearing a coat. Tr. 31, 36, 51-53.
In sum, after thorough review of the record of the suppression hearing, and the submissions of counsel, we are persuaded that Agent Cucinelli's question was routine in nature, with the intention solely of preparing the defendant for transport in cold weather, and that Agent Cucinelli could not reasonably be expected to have known that his question was reasonably likely to elicit an incriminating response. Accordingly, defendant's motion to suppress his post-arrest statements is denied.
Dated: New York, New York
August 24, 1994
ALLEN G. SCHWARTZ, U.S.D.J.