so the question is whether the statement was one that Walsh should have known was reasonably likely to elicit an incriminating response from Miller.
Although the proper focus of this inquiry is not on Agent Walsh's intent, it is generally true that a statement intended to elicit an incriminating response is one which the police know is likely to do so. See Innis, 446 U.S. at 301 n.7, 100 S. Ct. at 1690 n.7. However, while this Court is skeptical of Agent Walsh's testimony that he made his remark to Miller in order to "calm her down" (Tr. at 25), neither does this Court believe that Walsh intended to elicit any incriminating statements. Rather, Miller's statement "This ain't right, Walsh" was clearly an accusation that the arrest was unfair, and Walsh's statement was, in effect, a fairly normal response to such a charge -- an attempt to defend or justify his actions in making the arrest.
Walsh's intent is, however, not dispositive. Even if the police do not intend to elicit incriminating statements, the law holds them to the duty of refraining from speech which they should know is reasonably likely to do so. Nevertheless, this Court is persuaded that Walsh's statement was not a breach of that duty. The statement, "You knew we were coming," does not seem to invite any response. Under the facts as described at the hearing, the Court concludes that the statement was a declaratory response to Miller, not an inquisitive one.
Unlike other cases in which statements by the police were found to be interrogative, there is no suggestion in Walsh's remark that statements by Miller would be welcomed by the police or beneficial to her. See, e.g., United States v. Montana, 958 F.2d 516, 518-19 (2d Cir. 1992) (unsolicited statement by agent that cooperation would be beneficial constitutes interrogation). Nor does the statement compel any sort of refutation. Even if one were to construe the statement "You knew we were coming" to be a comment on the strength of the charges against Miller (implying, perhaps, that there was so much evidence that she could not possibly have expected to avoid charges), such a comment does not constitute interrogation. Although it is true that cases have found that confronting a suspect with the evidence against him may, if unsolicited, constitute interrogation, see United States v. Szymaniak, 934 F.2d 434, 439 (2d Cir. 1991) (confronting suspect with statement of accomplice "was calculated to elicit an incriminating response"), or similarly that "positing the guilt" of the suspect may also constitute interrogation, see Innis, 446 U.S. at 299, 100 S. Ct. at 1688; United States v. Perez, 948 F. Supp. 1191, 1198 (S.D.N.Y. 1996) (officer's statement to suspect that "we know you are a Latin King" violates Innis, all of those cases have involved specific charges or specific evidence and not a general declaratory statement made in response to a defendant's statements. A specific charge is much more likely to elicit a response than the vague, general comment made by Walsh in this case.
Under the totality of the circumstances, this Court finds that the statement by Walsh was not reasonably likely to elicit an incriminating response, and therefore it is not inadmissible under Innis.
Defendant Miller's motion to suppress is therefore denied.
Dated: New York, New York
February 12, 1998