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UNITED STATES v. THOMAS

March 7, 1997

UNITED STATES OF AMERICA,
v.
EVERETT THOMAS, Defendant.



The opinion of the court was delivered by: FOSCHIO

REPORT and RECOMMENDATION

 JURISDICTION

 This matter was referred to the undersigned by the Hon. Richard J. Arcara on February 5, 1997 for disposition of all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and for report and recommendation pursuant to § 636(b)(1)(B). It is presently before the court on the Defendant's motion to suppress statements. All non-dispositive motions were resolved on the record on January 30, 1997.

 BACKGROUND

 The Defendant was charged, in an indictment dated November 14, 1996, with two counts of violating 18 U.S.C. § 111. Specifically, he was charged with the forcible assault of and interference with two officers of the Department of Veteran Affairs. On August 26, 1996, while employed at the Veteran's Administration Medical Center, the Defendant allegedly assaulted two hospital security guards.

 The instant motion was filed on December 18, 1996, seeking the suppression of statements made by him while he was in custody and prior to the administration of Miranda warnings. The Government filed its response on January 6, 1997. An evidentiary hearing was conducted before this court on February 6, 1997. Oral argument was heard at that time. For the reasons that follow, the motion to suppress should be DENIED.

 FACTS

 The Government called one witness, Jeffrey M. Peterkin, the Assistant Chief of Police Security Service at the Veteran's Administration Medical Center in Buffalo, New York. (T.4). *fn1" While on duty on August 26, 1996, Peterkin received a radio call from a patrolman to report to the mail room. (T.5). When he arrived, he saw defendant Thomas, a mail room employee, face down on the floor with his hands cuffed behind his back. (T.6). Another officer, Patrolman McDonald, was leaning against a wall looking dazed and acting confused. (T.6). Patrolman Heinz explained that the officers had fought with Thomas regarding Thomas' alleged refusal to show his identification to enter the mailroom. (T.6). Peterkin and Heinz then helped Thomas to his feet to escort him to the police office. (T.7, 23). While walking down the hallway, with Patrolman McDonald following behind, Peterkin heard Thomas mumbling to himself that "this is bullshit, I don't have to show them anything." (T.8). Peterkin then asked Thomas, "Well, why didn't you just show him your ID?" (T.8). Thomas said "it goes back to the clothing room ... this has been brewing for a long time," and then stated that, if the "big officer" (Heinz) had not been present, "he would have killed him (McDonald)." (T.8-9). Peterkin then said "forget it, just be quiet," and they proceeded to the office. (T.9).

 Assistant Chief Peterkin testified that he did not intend to elicit an incriminating statement, but was merely engaging in casual conversation. (T.16). Thomas was in custody, not free to leave and was going to be charged with a crime. (T.12, 24). Later, in the police office, Thomas was advised of his Miranda rights. (T.39).

 DISCUSSION

 It is well settled that statements made during custodial interrogation are generally inadmissible unless a suspect has first been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). As the Government has conceded that Thomas was in custody at the time that he made the challenged statements, the only question before the court is whether Thomas was subject to interrogation.

 Interrogation is "express questioning or its functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 300-01, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). The functional equivalent of interrogation is "any words or actions ... that the police should know are reasonably likely to elicit an incriminating response," Innis, supra, at 301, 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) (citations omitted). While this definition focuses on the perceptions of the suspect, rather than the intent of the police, interrogation also "must reflect a measure of compulsion above and beyond that inherent in custody itself." Innis, supra, at 301; United States v. Moody, 649 F.2d 124, 127-28 (2d Cir. 1981).

 Custodial interrogation exists

 
when a law enforcement officer questions an individual and that questioning was (1) conducted in custodial settings that have inherently coercive pressures that tend to undermine the individual's will to resist and to compel him to speak, ... and (2) when the inquiry is conducted by officers who ...

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