The opinion
SCHWELB, Associate Judge,
dissenting:
My views regarding the legal issues in this appeal are set forth in my separate opinion in Jones v. United States, 726 A.2d 186, 190-91 (D.C.1999) (Jones I). I adhere to those views, and I continue to believe that the government waived the issue whether Jones-was in custody.
*564 In its petition for rehearing or, in the alternative, for rehearing en banc, the government alleges that the majority and concurring opinions in Jones I are both predicated on a misapprehension as to the correct sequence of events. Specifically, the government notes the finding by the trial judge that Jones’ incriminating remark to the effect that he was holding the drugs for two other men was made spontaneously, and that Jones made this statement before the officers asked Jones from whom he had purchased the drugs. Jones’ response to the petition essentially concedes the government’s point. 1
If we accept, as we must, the finding that Jones’ incriminating statement preceded, the officers’ inquiry as to the source of the drugs, then that statement was not made in response to questioning. Moreover, on this record, the request that Jones identify himself did not, in my opinion, constitute the “functional equivalent of interrogation.” See Rhode Island v. Innis, 446 U.S. 291, 300-01 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980); Thomas v. United States, 731 A.2d 415, 420-21 (D.C.1999). Accordingly, I would affirm Jones’ conviction. 2
. In footnote 2 to her response, counsel for Jones states:
The government is correct that the majority, in its description of the events, suggests that appellant’s statement was made in response to a specific inquiry regarding “from whom he had bought the drugs.” Jones [I], [ 726 A.2d at 189 ], In fact, as the government notes, the trial court had held that the question about the source of the drugs was asked later, after appellant had already made the statement at issue, and her holding was supported by the record.
To the extent that this was a misstatement of the facts, however, it had no impact on the court's ruling....
. In Part III of the majority opinion, my colleagues have accommodated one of the government's concerns by acknowledging that "[cjustody is present for purposes of entitling an individual to Miranda warnings only when that person’s freedom of movement is curtailed to the degree associated with formal arrest.” (Citing Patton v. United States, 633 A.2d 800 ,.815-16 (D.C.1993)) (internal quotation marks omitted). We recently reiterated this point in Morris v. United States, 728 A.2d 1210, 1216 (D.C.1999).