The opinion of the court was delivered by: LORD, III
Defendants were indicted for conspiring to defraud the United States in violation of 18 U.S.C. § 1341 in that they sold to Drug Enforcement Administration (DEA) agents a white powder which defendants had represented was cocaine but in fact was not. After his arrest, movant Mack Johnson made three oral statements which the Government intends to introduce at trial: on March 5, 1981, the day of his arrest, he told DEA agents, inter alia, that the substance he distributed was not cocaine; on the morning of March 6, 1981, before his bail hearing, he again asserted that the white powder was not cocaine; and at his bail hearing, later that morning, he stated "that it wasn't no cocaine." Transcript of Bail Hearing at 6. Movant seeks to suppress these three statements. I discuss the three statements seriatim.
A. The post-arrest statement
On March 5, 1981, DEA undercover Agent Davis went to Matt's Bar in Philadelphia in order to buy cocaine from defendants. The defendants and Davis went into the bathroom where defendant Wesley Johnson gave Davis a brown paper bag which supposedly contained cocaine. Davis told defendant Mack Johnson that his money was out in his car and the two men then left the bar and walked to Davis's automobile. When they reached the car, Davis gave a prearranged arrest signal to other DEA agents who then arrested defendant Mack Johnson.
At this time, the DEA agents had no reason to suspect that this white powder was not cocaine, especially since an earlier sample obtained from defendants had field tested positive.
After his arrest, movant was driven to DEA offices at 6th and Arch Streets. He was taken to a detention room where he was informed of his Miranda rights. Movant immediately responded:
"You're not going to arrest me, are you?" I (Davis) said, "Yes, I am."
He (movant) said, "Well, why?" So, I (Davis) told him (movant), for violation of the Controlled Substance Act.
So, he (movant) said, "Well, look, that stuff that I gave you wasn't anything." So, I (Davis) said, "What do you mean by that?"
He (movant) said, "That stuff that I gave you isn't anything. I got that stuff at the Head Shop."
Transcript of Suppression Hearing at 12.
These statements are admissible at trial since movant was not subjected to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694 (1966). Although movant was in custody, see generally Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977) (per curiam), there was no "interrogation," see Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). When Davis informed movant of his constitutional rights it cannot be said that Davis should have known that this information was reasonably likely to elicit an incriminating response from movant. Id. at 301, 100 S. Ct. at 1689-90. Rather, movant voluntarily waived his right to remain silent when he spontaneously made these statements which now have proven to be incriminating. " "Volunteered statements ... are not barred by the Fifth Amendment ....' " Estelle v. Smith, 451 U.S. 454, 101 S. ...