22. The agents did not tell Rusin the specifics of their investigation and stressed that they wanted his cooperation because they wanted Rusin to talk to them.
23. The agents did not formally arrest Rusin at any time on April 24, 1990. So far as the agents were concerned, Rusin was free to leave at any time and free to decline to answer any question.
24. Rusin believed that he was not free to leave the car. Further, he felt intimidated being in the car and being questioned by the agents.
25. The car was hot, but Rusin did not complain about the heat to the agents.
26. The agents did not pressure Rusin to answer any questions.
27. Rusin answered the agents' questions.
28. Meanwhile, back at Butya's office, Butya returned and received Rusin's message sometime after 1:05 p.m.
29. Butya placed a call to the office of John Zagari, Esquire. As Zagari was not in his office, Butya left a message.
30. Dan Rusin, the Defendant's son, was waiting for Butya's return at his office or arrived shortly after Butya's return. Dan Rusin was excited and insisted that Butya accompany him to the Eat 'N Park to find his father. Butya and Dan Rusin left hurriedly in Dan Rusin's truck to find Rusin at the Robinson Eat 'N Park.
31. After Butya left his office, Butya's secretary received, at 2:40 p.m., a message from Zagari stating that he could be reached through his office, he was in New York and Rusin should not answer any questions unless he is granted immunity.
32. Butya and Dan Rusin looked for Rusin inside the Eat 'N Park but could not find him. They got back in the truck and drove around the parking lot in search of Rusin or his car. They didn't see either. They drove to the nearby State Police barracks, drove through the parking lot and concluded that Rusin was not there. They returned to the Eat 'N Park, where they found Rusin in the Pontiac Bonneville with the agents.
33. Butya approached the car where Rusin was answering the agents questions. After Butya and the agents identified themselves to each other, Butya joined Rusin in the back seat of the car.
34. The agents disclosed to Butya the general subject of the interview and what questioning had transpired before he arrived. Butya remained in the car until the end of the interview.
35. Butya asked if the interview was being tape-recorded, and the agents told him it was not. Butya did not ask whether notes were being taken. Butya asked whether Rusin was the subject of the investigation. The agents told Butya that Rusin was not the subject of the investigation. Butya left with the impression that Rusin's statement would not be used against him.
36. Butya never complained about the heat of the car.
37. The interview continued in Butya's presence.
38. The interview lasted approximately one hour.
Butya was present for the last fifteen to thirty minutes of the interview.
39. Rusin was not offered, and did not request, food or drink during the course of the one-hour interview.
Conclusions of Law
40. The advisement of constitutional rights set forth in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966) is required only when a suspect is questioned while in custody. California v. Beheler, 463 U.S. 1121, 1123, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 (1983); Oregon v. Mathiason, 429 U.S. 492, 494-95, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977); Miranda, 384 U.S. at 444.
41. A person is "in custody" when the police have formally arrested the person or have restricted his or her freedom of action in any significant way. Beheler, 463 U.S. at 1125; Mathiason, 429 U.S. at 494; Miranda, 384 U.S. at 444; cf. Michigan v. Chesternut, 486 U.S. 567, 573, 100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988) (reiterating that a "seizure" of a person for Fourth Amendment purposes occurs only if, under the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave). Whether the police have restricted a person's freedom of action in any significant way is determined under the totality of circumstances. Beheler, 463 U.S. at 1125.
42. The Supreme Court has emphasized the following:
[A] noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a "coercive environment." Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of the law enforcement system may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him "in custody." It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.
Mathiason, 429 U.S. at 495 (emphasis in original).
43. Under the totality of circumstances, Rusin was not in custody at any time on April 24, 1990. Rusin contacted the agents in response to their inquiries and voluntarily appeared at the Robinson Eat 'N Park, a location familiar to, and chosen by, Rusin. Of his own free-will, he followed the agents' car to a parking space. Rusin entered the car of his own accord and without direction from the agents. That one of the agents opened the door for Rusin is not evidence of coercion; rather, it merely accommodated Rusin's intention, expressed by his conduct, to conduct the interview in the car. At any time, Rusin could have left the car by opening the door and stepping to the outside.
44. The agents' conduct did not restrain Rusin's freedom of action to any significant degree. Rusin's misapprehension of his ability to end the interview and leave was not objectively reasonable.
45. As Rusin was not in custody, his statements are not subject to suppression for the agents' not having advised him of his Miranda rights.
Right to Counsel
46. A person's right to be represented by counsel emanates from both the Fifth and Sixth Amendments. Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 491, 112 L. Ed. 2d 489 (1990); Michigan v. Jackson, 475 U.S. 625, 629-30, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986); Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981).
47. The Fifth Amendment-based right to counsel does not require government agents to advise a person of his or her right to have counsel present during questioning or to furnish the person with counsel, unless the person is "in custody." Beheler, 463 U.S. at 1123.
48. The Sixth Amendment-based right to counsel is not implicated until the government institutes formal, judicial, adversarial proceedings against a person. Compare Jackson, 475 U.S. at 629-30; and Kirby v. Illinois, 406 U.S. 682, 688-90, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972).
49. The agents did not elicit Rusin's statements in violation of his right to counsel. Rusin was not in custody when he made his statements to the agents, and no formal judicial proceedings had been instituted against him by April 24, 1990.
50. Statements that were not obtained in violation of a person's Miranda rights or right to counsel are nonetheless subject to suppression as violative of due process if they are "coerced" or "involuntary." See, e.g., Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 1253-54, 113 L. Ed. 2d 302 (1991); Lego v. Twomey, 404 U.S. 477, 483, 30 L. Ed. 2d 618, 92 S. Ct. 619 (1972); Miller v. Fenton, 796 F.2d 598, 603, cert. denied, 479 U.S. 989, 107 S. Ct. 585, 93 L. Ed. 2d 587 (1986). While it is the government's burden to show by a preponderance of the evidence that the challenged statements are voluntary, Lepo, 404 U.S. at 489, the ultimate issue of voluntariness is a question of law for the court. Fulminante, U.S. at , 111 S. Ct. at 1252.
51. "It is well established that an involuntary confession may result from psychological, as well as physical, coercion." Miller, 796 F.2d at 603-03 (citing cases). Whether a confession is voluntary is determined under the totality of the circumstances. Fulminante, U.S. at , 111 S. Ct. 1246, 113 L. Ed. 2d 302. In making its assessment, a court should look to the following:
the youth of the accused; his lack of education or his low intelligence; the lack of any advise to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of physical punishment such as deprivation of food or sleep.
Miller, 796 F.2d at 604 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973)). The court should consider the tactics employed by the government, the details of the interrogation and the specific characteristics of the accused. Id. The focus of the inquiry is the person's "ability to make an unconstrained, autonomous decision to confess." Id. at 605.
52. Rusin's statements to the agents on April 24, 1990 were not coerced.
53. Rusin was not detained or in custody; he voluntarily met the agents at the Eat 'N Park, entered their car and answered their questions. The Court has found as fact that Rusin did not, at any point in the interview, decline to answer the agents questions for any reason. Cf. Miller, 796 F.2d at 601-03.
54. At fifty-four, Rusin is not youthful. Although Rusin has only a ninth-grade education and cannot read or write, the lack of these skills was not any great handicap to him during the interview. He was not asked to sign or read any document. The agents were interested in facts within his personal knowledge.
55. It is undisputed that the agents did not advise Rusin of his constitutional rights. Rusin's seeking the advise and presence of counsel of at least one of his counsel before the interview indicates that he had some knowledge of the utility of having counsel at the interview. Yet, he attended the interview as scheduled, without counsel, and he never requested that the interview await the arrival of counsel. Indeed, he never mentioned counsel until Butya arrived at the car. In assessing voluntariness, the Court does not give great weight to the agents' failure to advise Rusin of his rights prior to the noncustodial interview.
56. Rusin was not "detained" during the interview. Moreover, the interview lasted approximately one hour, and Rusin was represented by counsel at the interview for fifteen to thirty minutes. The agents may have repeated certain questions. The car was hot, but not oppressive. The Court concludes that, in intent and effect, the length and nature of the interview is not indicative of coercion.
57. Rusin suffered no physical punishment or deprivation. During the one-hour interview in the mid-afternoon, Rusin did not request either food or drink. Both were readily available at the Eat 'N Park, in whose parking lot the interview occurred.
58. S.A. Duffy and S.A. Hanlon did not engage in tricks and subterfuge relative to this interview. They made no promises or threats to secure Rusin's cooperation. The agents did not disclose to Rusin all they knew; they were under no duty to do so. Although the agents most assuredly had at heart the best interests of their investigation, rather than Rusin, the conduct of the agents was not coercive or deceptive. Cf. United States v. Velasquez, 885 F.2d 1076, 1088 (3d Cir. 1989), cert. denied, 494 U.S. 1017, 108 L. Ed. 2d 497, 110 S. Ct. 1321 (1990) (police deception, under the circumstances, did not make statement involuntary); Miller, 796 F.2d at 607 (same).
59. Rusin's statements to S.A. Duffy and S.A. Hanlon on April 24, 1990 were not the product of an overborne will. They were not "coerced" or "involuntary" within the meaning of due process.
60. For the foregoing reasons, Rusin's Motion to Suppress Statement of April 24, 1990 will be denied. An appropriate order will be entered.
ORDER OF COURT
AND NOW this 30th day of April, 1993, upon consideration of the Court's Memorandum Opinion of even date, it is hereby ORDERED that Defendant William E. Rusin's Motion to Suppress Statement of April 24, 1990 (Document No. 415) is DENIED.
Donald J. Lee
United States District Judge