(concurring):
A person is “in custody” where “there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 713, 50 L.Ed.2d 714 (1977)). When Judge Sprizzo considered Morales’s motion to suppress statements made following his prison physical, he assumed that Morales was in custody. Many other courts, including the Supreme Court, have assumed that prisoners are “in custody.” See, e.g., Mathis v. United States, 391 U.S. 1, 4, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968) (state prisoner in custody when questioned by Internal Revenue Service investigator); Flittie v. Solem, 775 F.2d 933, 943 n. 17 (8th Cir.1985) (dictum) (en banc) (prisoner in state penitentiary in custody), cert. denied, 425 U.S. 1025, 106 S.Ct. 1223, 89 L.Ed.2d 333 (1986); United States v. Cassell, 452 F.2d 533, 540 (7th Cir.1971) (federal prisoner in prerelease guidance center in custody); Carter v. McGinnis, 351 F.Supp. 787, 792 (W.D.N.Y.1972) (prisoners at Attica Correctional Facility in custody); Blyden v. Hogan, 320 F.Supp. 513, 519 (S.D.N.Y. 1970) (prisoner at Manhattan House of Detention in custody); United States v. Harrison, 265 F.Supp. 660, 662 (S.D.N.Y.1967) (prisoner at Dannemora State Prison in custody).
Recently, several circuits have concluded that “a prison inmate is not automatically always in ‘custody’ within the meaning of Miranda." United States v. Conley, 779 F.2d 970, 973 (4th Cir.1985), cert. denied, — U.S.—, 107 S.Ct. 114, 93 L.Ed.2d 61 (1987); see also Cervantes v. Walker, 589 F.2d 424, 428 (9th Cir.1978). In their view, a prisoner is in custody only where his or her freedom is restricted “over and above that in his normal prisoner setting.” Cervantes, 589 F.2d at 428; see also Conley, 779 F.2d at 973. These courts purport to articulate objective criteria for assessing restrictions including “the language used to summon the individual, the physical surroundings of the interrogation, the extent to which he is confronted with evidence of his guilt, and the additional pressure exerted to detain him.” Cervantes, 589 F.2d at 428. However, courts applying these factors invariably conclude that the challenged interrogations are noncustodial, suggesting that the factors may merely disguise a denial of prisoners’ Fifth Amendment rights. See, e.g., United States v. Cooper, 800 F.2d 412, 414-15 (4th Cir.1986) (prisoners moved from cells to conference room and questioned by correctional treatment specialist ten days after stabbing incident not in custody); Conley, 779 F.2d at 973-74 (prisoner in handcuffs and full restraints in conference area awaiting medical treatment not in custody); Cervantes, 589 F.2d at 426-27 (prisoner *40moved from cell to six-by four-foot jail library and questioned by shift commander and sheriffs deputy standing one and one-half to two feet away about stabbing incident and green odorless substance in matchbox not in custody). Cf. United States v. Scalf, 725 F.2d 1272, 1276 (10th Cir.1984) (prisoner involved in stabbing incident questioned by security officer standing outside prison cell not in coercive environment; focus on interrogation prong).
The principles of Miranda support a rule that prisoners are per se “in custody.” Prisoners are obviously “deprived of [their] freedom of action in a[ ] significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). They are aware that they cannot escápe persistent custodial interrogation. Cf. Minnesota v. Murphy, 465 U.S. 420, 433, 104 S.Ct. 1136, 1145, 79 L.Ed.2d 409 (1984). Prison is “inherently coercive,” Roberts v. United States, 445 U.S. 552, 560, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980), and is a setting particularly susceptible to abuse. Questioning in prison involves neither brief detention nor public scrutiny, essential qualities of situations not requiring Miranda warnings. See, e.g., Berkemer v. McCarty, 468 U.S. 420, 437-38, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (Miranda warnings need not precede roadside questioning of motorists detained pursuant to routine traffic stops).
Moreover, the policy reasons for rejecting prison as per se custodial are not persuasive. Such a rule would not seriously disrupt prison administration. Warnings would not be required prior to informal conversations between inmates and prison guards. The sole consequence would be that statements elicited during interrogation would be admissible in criminal proceedings only if Miranda warnings were given. This rule would provide equal protection to prisoners and nonimprisoned persons.
Assuming Morales was in custody, Miranda warnings were required if there were questions “that the police should [have] know[n] [were] reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980), cited with approval in Arizona v. Mauro, — U.S.—, 107 S.Ct. 1931, 1935, 95 L.Ed.2d 458 (1987). Questions by a prison official, even a physician’s assistant, asking a prisoner to identify a white package that fell from his pants following a prison-mandated examination were likely to evoke an incriminating response and therefore constituted interrogation. See United States v. Moody, 649 F.2d 124, 128 (2d Cir.1981) (customs officer’s question asking suspect to identify plastic bag that fell after patdown was interrogation). But cf. Scalf, 725 F.2d at 1276 (prison officer’s conversation with prisoner from outside cell shortly after stabbing was “on-the-seene” inquiry). Although the physician’s assistant was not trained as an investigator nor responsible for investigating prison infractions or criminal violations, he did have security training. He questioned Morales after he thought the plastic bag might contain contraband which would have to be seized because possession might be an infraction. The suggestion that the repeated questions were products of normal curiosity is not persuasive.
Moreover, Judge Lumbard’s opinion appears to look only to the interrogator’s purpose in asking the questions. The In-nis Court, like the Mauro Court after it, stated that the definition of interrogation— “any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect” — “focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” 446 U.S. at 301, 100 S.Ct. at 1689, quoted in Mauro, 107 S.Ct. at 1935.
As Morales was subject to custodial interrogation without being advised of his Miranda rights, the district court erred in admitting his statements. Morales argues that this error was not harmless beyond a reasonable doubt; had the jury not heard the statements, he contends, it might have concluded he found rather than possessed the drugs. I disagree. Although his responses were arguably false exculpatory statements, his reply that he did not know *41what the package contained was consistent with his defense. Moreover, field tests revealed the package that fell from Morales pants did contain cocaine, making the admission of his statements harmless error. See Moody, 649 F.2d at 128 (denial of motion to suppress statement made without Miranda warnings during custodial interrogation harmless error where defendant charged with importing and possessing heroin with intent to distribute, statement described contents of plastic bag on defendant’s body as heroin, and plastic bag in fact contained heroin); cf. United States v. Vasquez, 638 F.2d 507, 525 (2d Cir.1980) (denial of motion to suppress evidence found in house pursuant to search made without warrant or consent had de minimis effect where defendant charged with possession of cocaine and cocaine found in defendant’s car), cert. denied, 454 U.S. 847, 102 S.Ct. 165, 70 L.Ed.2d 135 (1981).
Accordingly, I concur in the judgment affirming Morales’s conviction.