when he had reason to doubt the defendant's "mental acumen". Inspector Smaeder did testify that he was concerned with the defendant's psychiatric condition. (N.T. 1-34, 1-35). However, Inspector Smaeder did not question the defendant's mental ability and the record does not disclose any evidence that the defendant was unable to understand any of the events which occurred during his apprehension and the custodial interrogation.
Finally, the defendant contends that the statement written by him was no more than the dictation of Inspector Smaeder. The record clearly reveals, however, that Inspector Smaeder asked the defendant questions and the defendant wrote his own answers in his own handwriting. (N.T. 1-38). The record reveals that the facts as recorded in the written statement could have come from no other source than the defendant.
The defendant next contends that his statement to Inspector Smaeder was the result of a statement originally elicited from the defendant by bank detective Smith without Smith having given the defendant his Miranda warnings. Mr. Smith testified that he asked the defendant if he was Barney Tratenberg and the defendant replied that he was not and said that his name was Willis. (N.T. 1-49). When asked how he came into possession of the check payable to Barney Tratenberg, the defendant responded that he had gotten it out of the mail. (N.T. 1-50). The defendant was then asked to accompany Mr. Smith to his office. (N.T. 1-50).
While it is true that bank detective Smith did not give the defendant the warnings required by Miranda, it is also true that such warnings are only required when there is a "custodial interrogation", which is defined by the Supreme Court as ". . . 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 v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Assuming Arguendo that the defendant was in custody, bank detective Smith had no official or de facto connection with any public law enforcement agency. He was an employee of the Philadelphia Bank Detectives, a private organization which protected private property in private banks. Furthermore, there is no hint on this record of any Governmental knowledge or instigation of, influence on, or participation in any of the actions surrounding the taking of the defendant into custody, which produced the statements to Mr. Smith.
The Fifth Amendment privilege against self-incrimination does not require the giving of constitutional warnings by private citizens or security personnel employed thereby who take a suspect into custody. United States v. Bolden, 461 F.2d 998 (8th Cir. 1972); United States v. Antonelli, 434 F.2d 335 (2d Cir. 1970); United States v. Fioravanti, 412 F.2d 407 (3d Cir. 1969). The Federal exclusionary Rule enforcing adherence to the Fifth Amendment is a restraint upon the activities of sovereign authority and not a limitation upon other than government agencies. United States v. Antonelli, supra.
Since the questioning by Mr. Smith was not custodial interrogation by a law enforcement officer, Miranda is not applicable and no warnings were required. United States v. Casteel, 476 F.2d 152 (10th Cir. 1973); United States v. Fioravanti, supra. Moreover, since there is no "poisonous tree" the statement made to Inspector Smaeder cannot be a "fruit" and the defendant's contention that his statement to Inspector Smaeder was the result of unlawful conduct by the bank detectives must be rejected.
Accordingly, the following Order is entered:
And now, this 7th day of July, 1975, upon consideration of the defendant's Motion for a New Trial, it is hereby ordered that the Motion is denied.
UNITED STATES POSTAL INSPECTION SERVICE
WARNING AND WAIVER OF RIGHTS
Place: Bank Detective Agency
Date: 12/12/74 Time: 1:53
BEFORE YOU ARE ASKED ANY QUESTIONS, YOU MUST UNDERSTAND YOUR RIGHTS.
You have a right to remain silent.
Anything you say can be used against you in court.