The opinion of the court was delivered by: ACKERMAN
Rigoberto Mesa has been indicted in six counts alleging violations of 18 U.S.C. § 113(a), (c) and (f) in connection with the shooting of his "common-law wife", Karin Little, and his daughter, Sonia Mesa. He was arrested by the Federal Bureau of Investigation after a four and one-half hour confrontation at the El Sombrero Motel in Browns Mills, New Jersey. For approximately three and one-half hours of this confrontation, Mr. Mesa spoke over a mobile telephone unit with Theodore Viater, an FBI Agent who has had special training in hostage negotiation. Mr. Viater taped almost all of this conversation. In the course of his three and one-half hour talk with Mr. Viater, Mr. Mesa made several inculpatory statements that the prosecution would like to make a part of its case in chief. The defense has moved, pursuant to 18 U.S.C. § 3501, for the suppression of this evidence due to the failure of Mr. Viater to read to Mr. Mesa the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Miranda warnings must, of course, be given whenever law enforcement authorities engage in a "custodial interrogation." The Supreme Court has defined that term as follows: "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S. Ct. at 1612, quoted in Oregon v. Mathiason, 429 U.S. 492, 494, 97 S. Ct. 711, 713, 50 L. Ed. 2d 714 (1977). Mr. Mesa's motion presents the novel question of whether an armed suspect, who has not yet been formally arrested but who is barricaded in a motel room surrounded by nearly thirty law enforcement officers, is sufficiently within police custody to require Miranda warnings. The motion also raises the question of whether Mr. Viater's conversation with Mr. Mesa constituted interrogation. I have concluded that the answer to both of these questions is yes, and that the evidence should be suppressed.
On April 3, 1980 I conducted a hearing in accordance with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) and 18 U.S.C. § 3501, in order to ascertain the facts surrounding Mr. Mesa's conversation with Mr. Viater. See United States v. Arcediano, 371 F. Supp. 457, 459 (D.N.J.1974). At this hearing I heard testimony concerning Mr. Mesa's suppression motion from two FBI Agents, Dominic D. Di Domenico and Theodore Viater, and also received several exhibits, including the tape recording of the conversation at issue, in evidence for purposes of this motion. On the basis of this hearing I have made the following findings of fact:
On January 29, 1980, Mr. Di Domenico, along with two other FBI Agents, was investigating the shooting of Ms. Little and Ms. Mesa that had occurred the day before. In particular, he was trying to locate the defendant, Rigoberto Mesa, for whom he had an arrest warrant charging assault with intent to commit murder. At about 2:00 P.M. Mr. Di Domenico's information led him to the El Sombrero Motel, where he learned that Mr. Mesa had barricaded himself into his room sometime before 10:00 A.M. Upon being informed of this, the three Agents evacuated the rooms on each side of Mr. Mesa's room and proceeded to barricade the adjoining area including blockading the streets that afforded ingress and egress to the Motel. The Agents also notified the Military Police, the local police, and other law enforcement authorities. After taking these preliminary steps, the Agents parked their car directly in front of Mr. Mesa's room and, utilizing a bullhorn on the top of the car, said: "Mr. Mesa, this is the FBI, we have a warrant for your arrest, come out with your hands raised." There was no response from inside the room.
Within a few minutes of this initial announcement, additional police officers began to arrive on the scene to assist the three FBI Agents. In less than twenty minutes nearly thirty law enforcement officials were on the scene. The FBI repeated their statement over the bullhorn more than ten times during the first hour of the confrontation, but Mr. Mesa continued to refuse to surrender. At sometime early in this confrontation, Mr. Di Domenico called the Trenton FBI office and requested the assistance of Theodore Viater of the Newark office, because of Mr. Viater's special training in hostage negotiation. It was apparently unclear to the Agents at that time whether Mr. Mesa was holding any hostages and what weapons, if any, Mr. Mesa possessed. It later developed that he had no hostages, but did have a .25 calibre pistol.
By the time Mr. Viater arrived on the scene at approximately 3:00 P.M., Mr. Mesa had already passed three notes from his room to the FBI Agents on the outside. These notes were picked up by Mr. Di Domenico who removed them from under the door. At no time were any shots fired. These notes were entered into evidence and read as follows:
Note one (Exhibit D-1) : "Have a little patience. I will give myself up. My mind is too confused. I won't hurt anybody so wait till dark and call the M.P. I give you my words I really need to see a psychiatrist. To many people. Please tonight and will come out only to the M.P."
Note two (Exhibit D-2) : "If I say I have a gun you will storm the place. I said I don't want to hurt anybody. If you really know what I have been through this inner voice what don't let me alone. I have been done everything. I am not a criminal but please give me a little more time. Your wife will be impatient. At least you have someone to come. I never have that. I try so hard to make so good."
Note three (Exhibit D-3) : "The guy that pick up my note, please tell him that if I want to hurt him I got the chance twice so if he bring the phone act like a man. I am not a criminal."
When Mr. Viater arrived it was determined that there was no commercial telephone in Mr. Mesa's room and that it would be necessary to use a mobile telephone if Mr. Viater was to talk with Mr. Mesa. Accordingly, the FBI used the bullhorn to ask Mr. Mesa if he would take a telephone receiver into his room in order to talk to Mr. Viater. Using hand signals, Mr. Mesa indicated that he would. At that point a telephone was placed outside the door and after the Agents left the immediate vicinity of the doorway Mr. Mesa took the telephone into his room.
For the next three and one-half hours or so Mr. Viater and Mr. Mesa spoke over the telephone. At the end of this conversation, Mr. Mesa surrendered peacefully. Mr. Viater tape recorded this conversation on three cassettes that have been marked in evidence as Exhibit G-9, and I have listened to these recordings. At no time in the conversation were Miranda warnings given. Throughout the conversation Mr. Viater lends a sympathetic ear to Mr. Mesa's tale of troubles. For example, the first thing Mr. Viater is heard to say on the tape is:
Yes, Rigoberto, I am listening to you very intently, I can, I have empathy for what you're saying, I understand exactly the things you are expressing to me. And I want you to know I understand and be aware of the fact that I am here to help you. Are you, are you aware of that?
At other times, Mr. Viater asks questions. For example, early in the first cassette, the ...