People v. Mayfield1/2/1997
) But we determine independently, based on the undisputed facts and those properly found by the trial court, whether the challenged statements were legally obtained. (Ibid.)
We consider first the statements defendant made on the telephone while inside the Haverstick residence.
Although the issue appears not to have arisen often, every court that has faced it has decided that telephone conversations between police negotiators and an armed suspect who has taken refuge in a building that is surrounded by law enforcement officers do not constitute custodial interrogation for purposes of the Miranda rule. (See, e.g., United States v. Mesa (3d Cir. 1980) 638 F.2d 582, 586 (lead opn. by Seitz, C. J.); id. at p. 589 (conc. opn. of Adams, J.); People v. Treier (1995) 165 Misc.2d 665, 669 [630 N.Y.S.2d 224, 227]; State v. Pejsa (1994) 75 Wn.App. 139, 149 [876 P.2d 963, 969]; State v. Stearns (1993) 178 Wis.2d 845, 846-847 [506 N.W.2d 165, 167-168]; People v. Brewer (Colo.Ct.App. 1985) 720 P.2d 583, 586.) As these courts have emphasized, an officer who is talking to a suspect under these conditions is not physically in the suspect's presence and thus lacks immediate control over the suspect, who retains a degree of freedom of action inconsistent with a formal arrest; indeed, the suspect can readily terminate communications at any time by hanging up the phone. ( United States v. Mesa, (supra) , at pp. 585-587 (lead opn. by Seitz, C. J.); State v. Pejsa, (supra) , 75 Wn.App. 139, 149 [876 P.2d 963, 969]; People v. Brewer, (supra) , 720 P.2d at p. 586.) Moreover, the main purpose of the officers in communicating with the suspect is not to investigate a crime but to convince the suspect to surrender peacefully; accordingly, there is little risk that the officers will use coercive techniques to elicit incriminating information. Finally, giving the Miranda warnings might make the officers' task more difficult, thereby increasing the risk of a violent confrontation. ( United States v. Mesa, (supra) , 638 F.2d at p. 590 (conc. opn. of Adams, J.); State v. Stearns, (supra) , 178 Wis.2d 845, 851-852 [506 N.W.2d 165, 167-168].)
We agree with the reasoning of these courts. We also agree with the court in People v. Treier, (supra) , 165 Misc.2d 665, 670-671 [630 N.Y.S.2d 224, 227-228], that the "public safety" exception to Miranda applies during police negotiations to obtain the release of a hostage held at gunpoint. Accordingly, we conclude that the statements defendant made while speaking to police negotiators over the telephone from the Haverstick residence were not unlawfully obtained and that, accordingly, the trial court properly denied the defense motion to exclude them from evidence under Miranda v. Arizona, (supra) , 384 U.S. 436.
We consider next the statements defendant made to Deputy Stein after he had been formally arrested and handcuffed. There is no dispute that defendant was in custody when he made these statements and that he had not previously been advised of his constitutional rights under Miranda v. Arizona, (supra) , 384 U.S. 436. The admissibility of these statements turns on whether they were the product of police interrogation or instead were freely volunteered.
Defendant concedes that Deputy Stein did not expressly question defendant, but he argues that at the time of his surrender the police engaged in actions that they should have known were "reasonably likely to evoke an incriminating response from" defendant ( Rhode Island v. Innis (1980) 446 U.S. 291, 301 [64 L. Ed. 2d 297, 308, 100 S. Ct. 1682]). In particular, he cites evidence that police negotiators told defendant that they would or might permit him to speak to his father if he surrendered. After
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