If an incarcerated defendant converses with an
undercover agent or government informant without
knowing he or she is speaking to a law enforcement agent,
no custodial interrogation has occurred. Under these
circumstances, the coercive “police-dominated atmo-
sphere” underlying the necessity of Miranda warnings is
simply absent. Illinois v. Perkins, 496 U.S. 292 (1990).
Indeed, if an incarcerated defendant is directly questioned
by law enforcement officers in a setting or atmosphere far
removed from the coercive environment of a station house,
Miranda warnings need not be given. See e.g., State v.
Williams, N.J. 493 (1971) (holding that a incarcerated
witness testifying in open and public courtroom in the
presence a judicial officer was not in custody for Miranda
purposes); see also State v. Malik-Ismail, 292 N.J. Super.
590 (App. Div. 1996) (holding that an incarcerated
defendant who agreed to plead guilty and to cooperate
against a codefendant was not in custody during post-plea
interviews conducted by investigators).
C. What Constitutes Interrogation?
As emphasized by the United States Supreme Court in
Miranda, volunteered statements are admissible even if the
defendant was in custody when the statement was made
and no warnings were given. See State v. Bohuk, 269 N.J.
Super. 581 (App. Div.), certif. denied, 136 N.J. 29, cert.
denied, 513 U.S. 865 (1994); State v. Mujahid, 252 N.J.
Super. 100 (App. Div.), certif. denied, 127 N.J. 561 (1991);
State v. Marks, 201 N.J. Super. 514 (App. Div. 1985), certif.
denied, 102 N.J. 393 (1986); State v. Elysee, 159 N.J. Super.
380 (App. Div. 1978).
In Rhode Island v. Innis, 446 U.S. 291 (1980), the
United States Supreme Court defined “interrogation” for
purposes of Miranda as encompassing both express
questioning and its “functional equivalent.” The
“functional equivalent” of express questioning is “any
words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating
response from the suspect”
Elaborating on the “functional equivalent” form of
“interrogation”, the Court in Innis held that it “focuses
primarily upon the perceptions of the suspect, rather than
the intent of the police.” In other words, the officer’s
subjective intent to elicit an incriminating response by his
words or actions is not dispositive. Rather, the Innis test is
primarily objective: should the officer have realized that his
acts or words were reasonably likely to result in an
incriminating response. Nonetheless, the Court cautioned
that “any knowledge the police may have had concerning
the susceptibility of a suspect to a particular form of
persuasion might be an important factor in determining
whether the police should have known that their words or
actions were reasonably likely to elicit an incriminating
response.”In Arizona v. Mauro, 481 U.S. 520 (1987), the United
States Supreme Court concluded that a defendant who
asserted his right to counsel was not subjected to
interrogation or its “functional equivolent” when police
allowed defendant’s wife to speak to him in the presence of
another officer who tape recorded their conversation. The
police officer asked no questions about the crime, and there
was no indication that the police sent defendant’s wife in to
see him for the purpose of eliciting incriminating
statements.Applying the test enunciated in Innis, the Appellate
Division concluded that inquiry about a suspect’s comfort
is not “reasonably likely” to evoke an incriminating
response. State v. Lozado, 257 N.J. Super. 260 (App. Div.),
certif. denied, 130 N.J. 595 (1992). It likewise rejected an
assertion that an inquiry made by an arresting officer
regarding the whereabouts of a suspect’s glasses while
effectuating his arrest was intended to elicit incriminating
evidence. State v. Ramos, 217 N.J. Super. 530 (App. Div.
1987); see also State v. M.L. 253 N.J. Super. 13 (App. Div.
1991), certif. denied, 127 N.J. 560 (1992); State v. Sanchez,
224 N.J. Super. 231 (App. Div. 1988); State v. Coburn, 221
N.J. Super. 586 (App. Div. 1987), certif. denied, 110 N.J.
300 (1988).Routine ministerial questions asked during the
booking of a suspect have not usually been held to require
Miranda warnings. Pennsylvania v. Muniz, 496 U.S. 582
(1990) (holding that questions to defendant regarding his
name, address, height, weight, etc. did not require
Miranda warnings even though video tape of the questions
and defendant’s answers was introduced at trial to
demonstrate defendant’s intoxication); State v. Bohuk;
State v. Cunningham, 153 N.J. Super. 350 (App. Div.
1977). Although informing a suspect of charges against
him during a booking procedure does not amount to
interrogation for Miranda purposes, see State v. Mallozzi,
246 N.J. Super. 509 (App. Div.), certif. denied, 126 N.J.
331 (1991), confronting a suspect with incriminating
evidence during questioning has been found to constitute
the functional equivalent of interrogation. State v. Brown,
282 N.J. Super. 538 (App. Div.), certif. denied, 143 N.J.
322 (1995); see also State v. Hall, 253 N.J. Super. 84 (Law.
Div. 1990), aff’d, 253 N.J. Super. 32 (App. Div. 1991);
State v. Ward, 240 N.J. Super. 412 (App. Div. 1990).