of a letter which suggests that inmates were communicating to each other the substance of their testimony.
31. The interview of Vasquez by S.A. Thompson and S.I.A. Aponte began at 8:47 p.m., so that approximately three to three-and-one-half hours passed between the reading of the Miranda warnings by C.O. Geiswite and the interview.
32. Vasquez' "rap sheet" provided by the government, Exhibit 2 to Government's Memorandum in Support of the Admission of the Defendant's Pre-Trial Statement, indicates that, between March 14, 1973, and July 18, 1984, he was arrested fourteen times on charges including armed robbery, bank robbery, possession of narcotics, unlawful possession of firearms, importing heroin, giving false information to the police, and possession of "dum-dum" bullets.
33. Vasquez' inmate history (a printout of computer records maintained by the BOP), id., Exhibit 1, indicates that Vasquez has been placed in disciplinary segregation or administrative detention at USP-Lewisburg on ten separate occasions.
III. CONCLUSIONS OF LAW
1. The fact that an inmate is incarcerated does not necessarily indicate that he is in "custody" for purposes of Miranda. United States v. Conley, 779 F.2d 970 (4th Cir. 1985), cert. denied, 479 U.S. 830, 93 L. Ed. 2d 61, 107 S. Ct. 114 (1986).
2. The hand-cuffing of Vasquez after the incident and his placement in SHU constituted further restraints on his liberty than is customary in USP-Lewisburg, and constituted "custody" for purposes of Miranda. See generally Garcia v. Singletary, 13 F.3d 1487, 1489-1491 (11th Cir.), reh'g and reh'g en banc denied, 22 F.3d 1101 (11th Cir.)(table), cert. denied, 115 S. Ct. 276, 130 L. Ed. 2d 193 (1994).
3. Based on the questions posed by S.A. Thompson, the interview of Vasquez on March 19, 1991, constituted interrogation for purposes of Miranda.
4. Miranda warnings must be given prior to custodial interrogation in the prison setting. Mathis v. United States, 391 U.S. 1, 20 L. Ed. 2d 381, 88 S. Ct. 1503 (1968).
5. Vasquez was entitled to be given Miranda warnings prior to the interview of March 19, 1991.
6. The standard for the sufficiency of Miranda warnings and a waiver of the rights enumerated therein is a totality of the circumstances test. United States v. Velasquez, 885 F.2d 1076, 1086 (3d Cir. 1989), reh'g denied, cert. denied, 494 U.S. 1017, 108 L. Ed. 2d 497, 110 S. Ct. 1321 (1990).
7. The circumstances reviewed include the background, experience, and conduct of the suspect. Id.
8. The passage of time between the issuance of Miranda warnings and custodial interrogation does not necessarily render statements responsive to the questioning inadmissible. See Stumes v. Solem, 752 F.2d 317, 321 (8th Cir.) (six and one-half hour gap between warnings and second interview did not violate Miranda because "to require the police to reissue Miranda rights under these circumstances would serve no real purpose."), cert. denied, 471 U.S. 1067, 85 L. Ed. 2d 502, 105 S. Ct. 2145 (1985).
9. In the circumstances presented in this case, S.A. Thompson was not required to re-warn Vasquez with respect to his Miranda rights, as Vasquez was well aware of his rights.
10. A waiver of the right to remain silent need not be affirmative, but may be found to exist based upon the totality of the circumstances, including the failure to indicate a desire to remain silent in the face of questioning by a police officer following the reading of Miranda warnings. See, e.g., United States v. Cruz, 910 F.2d 1072, 1080 (3d Cir. 1990).
11. Vasquez made a voluntary, knowing, and intelligent waiver of his Miranda rights by answering the questions posed during the custodial interrogation of March 19, 1991.
12. The statement made by Vasquez during the custodial interrogation on March 19, 1991, is admissible at trial.
Several courts have examined the question of whether the passage of time before interrogation may dissipate the effect of Miranda warnings, although the issue appears somewhat infrequently. In Stumes v. Solem, 752 F.2d 317 (8th Cir. 1985), the defendant was requestioned six and one-half hours after warnings were given and five hours after the first interview terminated. The facts strongly suggested, however, that he was well aware of his rights, including: the defendant was an intelligent and articulate adult; the defendant had discussed his rights previously with his attorney; Miranda warnings had been provided twice; and the defendant was familiar with the criminal justice system. 752 F.2d at 320.
In evaluating the circumstances of the case, the Eighth Circuit noted that they were consistent with the facts presented in Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975), with the main difference being the delay between the warnings and the interrogation. Since the circumstances were such that the delay was of no consequence, the Eighth Circuit concluded that the outcome should be the same as in Mosley, i.e. the waiver of the rights enumerated in Miranda was effective. Specifically, the Eighth Circuit stated:
To require the police to reissue Miranda rights under these circumstances would serve no real purpose. If [the defendant] had thought that the police would ignore his rights even if he asserted them, it is hardly likely that the mere reiteration of the rights would have disabused him of that idea.
Stumes, 752 F.2d at 321.
Other courts have concluded that a delay between Miranda warnings and interrogation does not automatically render an ensuing statement inadmissible. See Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir.)(lapse of four hours did not render warnings "stale" because defendant was aware of his rights, knew that he was a suspect in the case, and was not naive, mentally deficient or pressured), reh'g denied, 740 F.2d 979 (11th Cir. 1984), cert. denied, 471 U.S. 1103, 85 L. Ed. 2d 848, 105 S. Ct. 2331, reh'g denied, 473 U.S. 921, 87 L. Ed. 2d 670, 105 S. Ct. 3547 (1985); United States v. Hopkins, 433 F.2d 1041 (5th Cir. 1970), cert. denied, 401 U.S. 1013, 28 L. Ed. 2d 550, 91 S. Ct. 1252 (1971) (while warnings are not accorded unlimited efficacy or perpetuity, initial warnings sufficient because time lapse significant, suspect questioned regarding same subject matter, and nothing happened in interim to dilute efficacy of warnings).
One case remarkable for its direct approach to the issue is United States v. Smith, 679 F. Supp. 410 (D. Del. 1988). In that case, a Delaware State Police corporal stopped the defendant for a minor traffic offense at 11:20 a.m. When a pat-down of the defendant revealed cocaine in the defendant's pants pocket, the defendant was placed under arrest and read his Miranda rights. The time of the arrest was 11:25 a.m. The defendant stated that he understood his rights, and there was no reason to question the answer. 679 F. Supp. at 411.
A Delaware State Police trooper arrived on the scene and transported the defendant back to the troop headquarters without discussing the case. The corporal interviewed the defendant at about 12:30 p.m. without repeating the Miranda warnings. The defendant provided a statement at that time. Id.
The corporal then transported the defendant to the office of the Drug Enforcement Agency (DEA), where he again was interviewed without a repetition of the Miranda warnings. The time of the second interview, this one by the DEA special agent, was approximately 2:00 p.m. Id.
The defendant moved to suppress both statements. Following a suppression hearing, the district court ruled immediately from the bench that the statement to the corporal was voluntary, but deferred its decision as to whether too much time elapsed prior to the statement to the DEA special agent. In its opinion, the court first reviewed the applicable law, including Wyrick v. Fields, 459 U.S. 42, 47, 74 L. Ed. 2d 214, 103 S. Ct. 394 (1982), in which the Supreme Court overruled an Eighth Circuit decision establishing a per se rule that Miranda warnings must be reissued, and established a totality of the circumstances test. 679 F. Supp. at 412.
The court then reviewed a number of cases in which a delay between Miranda warnings and interrogation did not affect the admissibility of a defendant's statement to police, 679 F. Supp. at 412-413, and analyzed the facts of the case as follows:
Considering the totality of the circumstances, the Court concludes that Agent Glanz's failure to repeat the Miranda warnings does not mandate suppression of Mr. Smith's statement to Agent Glanz. Approximately two and a half hours elapsed from the time Corporal Durnan gave Mr. Smith the warnings and Agent Glanz's interview. Mr. Smith indicated to Corporal Durnan that he understood his rights, and a gap of two and a half hours is insufficient for Mr. Smith to have forgotten. At no time did Mr. Smith request an attorney or indicate that he did not want to continue talking. Although Mr. Smith was transported from I-95 to Troop 6 and then to the DEA office, nothing occurred during his travels to invalidate his waiver. Neither Corporal Durnan, nor Trooper Thomas, nor Agent Glanz in any way coerced or threatened or made promises to Mr. Smith. Agent Glanz knew that Corporal Durnan had given the suspect his warnings. Importantly, both Agent Glanz and Corporal Durnan questioned Mr. Smith concerning the same subject matter.
679 F. Supp. at 413.
Each of these cases, and especially Smith, provides an example of the circumstances under which a suspect may waive his or her rights under Miranda despite a lapse of time between Miranda warnings and interrogation. Because of the infinite variety of circumstances a case and a suspect may present, a court determining the admissibility of a statement given in such a situation necessarily accords differing weight to a number of potential factors, and a determinative factor may be non-existent in another case. In Stumes, for example, an important consideration was the defendant's statements and conduct between the time Miranda warnings were provided and the time of the interview. In the interim, the defendant indicated in a number of ways that he continued to know and understand his rights, and so the waiver was valid. In Smith, the defendant did nothing more than travel between the offices of the State Police and the DEA, and so had no reason to forget something he knew and understood within the previous two hours.
Based upon a review of these cases, it appears that the question of whether a time lapse renders Miranda warnings "stale" may be reduced to answering two questions: (1) At the time the Miranda warnings were provided, did the defendant know and understand his rights? (2) Did anything occur between the warnings and the statement, whether the passage of time or other intervening event, which rendered the defendant unable to consider fully and properly the effect of an exercise or waiver of those rights before making a statement to law enforcement officers?
Because of the infinite variety of circumstances which may arise, no court has attempted to set forth a list of requirements which must be met before a statement taken after a delay from the time Miranda warnings have been given will be admissible. Pennsylvania courts, however, have applied a list of factors which appears to be extremely helpful in making this determination. These include:
(1) the time lapse between the last Miranda warnings and the appellant's statement; (2) interruptions in the continuity of the interrogation; (3) whether there was a change of location between the place where the last Miranda warnings were given and the place where the appellant's statement was made; (4) whether the same officer who gave the warnings also conducted the interrogation resulting in the appellant's statement; and (5) whether the statement elicited during the complained-of interrogation differed significantly from other statements which had been preceded by Miranda warnings.