                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 14-10224
                  Plaintiff-Appellee,
                                                      D.C. No.
                      v.                           4:12-cr-00583-
                                                    DCB-CRP-4
 BRIGIDO LUNA ZAPIEN,
               Defendant-Appellant.                  OPINION



        Appeal from the United States District Court
                 for the District of Arizona
       David C. Bury, Senior District Judge, Presiding

              Argued and Submitted May 9, 2016
                  San Francisco, California

                        Filed July 3, 2017

Before: M. Margaret McKeown and Michelle T. Friedland,
 Circuit Judges, and Richard F. Boulware, * District Judge.

                       Per Curiam Opinion




     *
       The Honorable Richard F. Boulware, United States District Judge
for the District of Nevada, sitting by designation.
2                   UNITED STATES V. ZAPIEN

                          SUMMARY **


                          Criminal Law

    The panel affirmed the district court’s denial of the
defendant’s motion to suppress his confession volunteered
after he was arrested for alleged involvement in an illegal
drug sale, Mirandized, and accused by DEA agents of being
a drug dealer.

    The panel disagreed with the defendant’s argument that
the agents’ questioning following the invocation of his right
to counsel constituted interrogation, and concluded that the
questioning was covered by the booking exception, which is
an exemption from Miranda’s coverage for questions posed
to secure the biographical data necessary to complete
booking or pretrial services. The panel agreed with the
district court that the questions asked of the defendant were
biographical questions and were not reasonably likely to
elicit an incriminating response.


                            COUNSEL

Francisco León (argued), Law Office of Francisco León,
Tucson, Arizona, for Defendant-Appellant.

Christina Cabanillas (argued), Assistant United States
Attorney; Robert L. Miskell, Appellate Chief; John S.


    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. ZAPIEN                    3

Leonardo, United States Attorney; United States Attorney’s
Office, Tucson, Arizona, for Plaintiff-Appellee.


                         OPINION

PER CURIAM:

    Brigido Luna Zapien was arrested for his alleged
involvement in an illegal drug sale. After being Mirandized,
Luna Zapien invoked his right to counsel after Drug
Enforcement Administration (DEA) agents accused him of
being a drug dealer. Following his invocation, the agents
began asking him biographical questions. Luna Zapien then
said he wanted to provide further information. Again, the
agents advised him of his rights under Miranda, but he
explicitly said he wanted to talk without counsel and then
told the agents that he had been involved in drug trafficking.
The district court concluded that Luna Zapien’s
incriminating statements were admissible because the
biographical questions did not constitute interrogation. We
agree and affirm the district court’s denial of the motion to
suppress Luna Zapien’s confession.

I. BACKGROUND

    The DEA’s investigation of Luna Zapien began in
January 2012 with an informant’s tip that Luna Zapien was
a drug dealer. Over the course of a few days, agents
observed Luna Zapien interacting with a confidential
informant.    These interactions culminated in a drug
transaction involving Luna Zapien. After this transaction,
on February 10, 2012 at approximately 7:30pm, Luna Zapien
was stopped while driving his truck by Sahuarita Police
Department (SPD) Officer Carl Navarette. Luna Zapien was
detained for twenty to thirty minutes at the location where
4                UNITED STATES V. ZAPIEN

his vehicle had been stopped, and then Officer Navarrete
arrested Luna Zapien and transported him to the SPD station.

    Navarette took Luna Zapien to a secluded hallway
behind the holding cells, but did not place him in a holding
cell. Subsequently, DEA Agent Jerome Souza, DEA Task
Force Officer Mark Ramirez, and DEA Special Agent Erika
Dorado approached Luna Zapien to interview him. Luna
Zapien had been detained at the SPD station for less than one
hour before this interview began. The agents questioned
Luna Zapien in the hallway area, where there were tables and
chairs available. Luna Zapien was seated and was not
handcuffed during the interview. As Luna Zapien did not
speak English, Officer Ramirez, a Spanish speaker, initiated
the questioning in Spanish, and he took questions from the
agents and translated them into Spanish.

    Before the questioning began, Officer Ramirez read
Luna Zapien his Miranda rights in Spanish from a plastic
wallet card. Luna Zapien stated that he understood his rights
and was willing to speak to the agents without an attorney
present. Officer Ramirez then asked him about his
involvement in drug trafficking. Luna Zapien stated he had
never been involved in the sale or purchase of drugs, at
which point Officer Ramirez told Luna Zapien that Ramirez
had evidence of Luna Zapien’s involvement in drug
trafficking. Luna Zapien then explicitly invoked his right to
counsel. All questioning about drug trafficking stopped
immediately. This occurred approximately five minutes
after the interview had begun.

     After Luna Zapien invoked his right to counsel, Officer
Ramirez began asking Luna Zapien for certain biographical
information, such as Luna Zapien’s name, birth date, and
residence, and the names of his wife, parents, and children.
It is unclear whether Ramirez told Luna Zapien that he had
                 UNITED STATES V. ZAPIEN                    5

to answer the biographical questions or Ramirez simply
requested that he answer these questions. Officer Ramirez
did tell Luna Zapien that he was not going to ask anything
“about the case, about the evidence,” but that he needed the
information to “fill out the form”—a DEA Form 202.

    At some point after providing answers to Officer
Ramirez’s questions concerning biographical information,
Luna Zapien told the officers that he wanted to give a
statement regarding drug trafficking.             The agents
immediately reminded Luna Zapien of his constitutional
rights and told him they did not want to ask any questions
because of his earlier request for an attorney. Luna Zapien
said that he understood those rights, he wanted to waive
them, and he wished “to speak to [the agents] without the
presence of an attorney.” It was only after this exchange that
the agents asked about his participation in drug activity and
that he admitted selling drugs. Luna Zapien told the officers
that he had been involved “in making phone calls and
meeting with an unknown [H]ispanic male, and that he did
sell narcotics.”

    On March 7, 2012, Luna Zapien was indicted by a grand
jury with (1) conspiracy to possess with intent to distribute
approximately 450 grams of methamphetamine, in violation
of 21 U.S.C. § 846; and (2) possession with intent to
distribute approximately 450 grams of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii).
On March 23, 2012, he was arraigned and pleaded not guilty
to the indictment.

    Before trial, Luna Zapien filed a motion to suppress the
statements he made to the DEA agents after his arrest,
arguing in part that the statements were obtained in violation
of Miranda v. Arizona, 384 U.S. 436 (1966) because he had
asserted his right to counsel.
6                UNITED STATES V. ZAPIEN

    The magistrate judge conducted an evidentiary hearing
on Luna Zapien’s motion to suppress. The government
presented three witnesses at the hearing: DEA Agent Souza,
DEA Task Force Officer Ramirez, and SPD Officer
Navarrete. Officer Ramirez testified that he regularly asks
DEA Form 202 questions to gather emergency contact
information to provide to the Marshals.

     In his Report and Recommendation (R&R), the
magistrate judge determined that (1) Luna Zapien was
properly advised of his Miranda rights; (2) Luna Zapien
initially invoked his right to counsel, after which all
questioning concerning drug trafficking ceased; (3) Officer
Ramirez’s questions regarding biographical information did
not constitute interrogation for purposes of Miranda;
(4) after the biographical questions, Luna Zapien reinitiated
conversation about his drug trafficking and knowingly and
voluntarily waived his right to counsel; and (5) there was no
evidence of coercion. The magistrate judge therefore
recommended that Luna Zapien’s incriminating statements
were admissible and that his motion to suppress be denied.
The district court overruled Luna Zapien’s objections to the
R&R, adopted it in its entirety, and denied Luna Zapien’s
motion to suppress. In adopting the R&R, the district court
adopted the magistrate judge’s finding that the agents had
testified credibly.

    After a five-day jury trial, the jury returned a verdict of
guilty as to Luna Zapien on both counts. He was sentenced
to concurrent terms of imprisonment of ten years and
supervised release terms of five years for each count.

   On appeal, Luna Zapien challenges the district court’s
denial of the motion to suppress and his sentence. We
address the suppression issue in this opinion and consider the
                 UNITED STATES V. ZAPIEN                    7

sentencing issue in a separate memorandum disposition filed
concurrently.

II. DISCUSSION

    Luna Zapien argues that the questioning following the
invocation of his right to counsel constituted interrogation.
We disagree. We conclude that the questioning was covered
by the booking exception.

   A. Standard of Review

    “We review the district court’s denial of [a] motion to
suppress de novo and the underlying factual findings for
clear error.” United States v. Rodriguez-Preciado, 399 F.3d
1118, 1125, amended by 416 F.3d 939 (9th Cir. 2005). We
also review de novo whether a defendant was subject to
“interrogation” within the meaning of Miranda. United
States v. Foster, 227 F.3d 1096, 1102 (9th Cir. 2000).

   B. Custodial Interrogation          and    the   Booking
      Exception

    “Pursuant to Miranda v. Arizona, a person has a right to
the assistance of counsel during custodial interrogations.”
Id. (citation omitted). Following Miranda, the Supreme
Court explained in Edwards v. Arizona that “when an
accused has invoked his right to have counsel present during
custodial interrogation,” he must not be “subject to further
interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the
police.” 451 U.S. 477, 484–85 (1981). “The term
‘interrogation’ means ‘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
8                UNITED STATES V. ZAPIEN

elicit an incriminating response.’”      United States v.
Washington, 462 F.3d 1124, 1132 (9th Cir. 2006) (quoting
Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).

    Importantly, the “routine gathering of background
biographical information, such as identity, age, and address,
usually does not constitute interrogation.” Id.; see also
Foster, 227 F.3d at 1103; United States v. Booth, 669 F.2d
1231, 1238 (9th Cir. 1981). What is called the “booking
exception,” then, is in fact an “exemp[tion] ‘from Miranda’s
coverage’” for questions posed “‘to secure the biographical
data necessary to complete booking or pretrial services.’”
United States v. Williams, 842 F.3d 1143, 1147 (9th Cir.
2016) (quoting Pennsylvania v. Muniz, 496 U.S. 582, 601
(1990) (plurality opinion)).

    Nonetheless, we have “recognize[d] the potential for
abuse by law enforcement officers who might, under the
guise of seeking ‘objective’ or ‘neutral’ information,
deliberately elicit an incriminating statement from a
suspect.” Booth, 669 F.2d at 1238. To account for this risk,
we apply an “objective” test to determine whether the
questioning constituted interrogation. Washington, 462 F.3d
at 1132. Seemingly routine biographical questions can
constitute interrogation if, in light of all the circumstances,
the officers should have known that their words or actions
were reasonably likely to elicit an incriminating response.
Booth, 669 F.2d at 1238. In making this determination, “the
focus is upon the defendant’s perceptions.” United States v.
Moreno-Flores, 33 F.3d 1164, 1169 (9th Cir. 1994).

    Once the import of the booking exception is properly
understood as part and parcel of the question whether there
has been “interrogation,” it becomes clear that the
determinative issue is whether the officer “should have
known that his questions were reasonably likely to elicit an
                    UNITED STATES V. ZAPIEN                          9

incriminating response.” United States v. Poole, 794 F.2d
462, 466, amended on denial of reh’g by 806 F.2d 853 (9th
Cir. 1986). Thus, courts must determine whether “the
questions are reasonably likely to elicit an incriminating
response in a particular situation.” United States v. Mata-
Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983). This analysis
includes consideration of both the questions and the context.
See United States v. Pacheco-Lopez, 531 F.3d 420, 424–25
(6th Cir. 2008) (“The location, the nature of the questioning,
and the failure to take notes or document the defendant’s
identity also support our conclusion that the booking
exception is not applicable in this case.”). In undertaking
this analysis, courts have looked to a range of particularized
circumstances. See, e.g., Mata-Abundiz, 717 F.2d at 1280
(whether the government agency conducting the questioning
ordinarily booked suspects); United States v. Disla, 805 F.2d
1340, 1347 (9th Cir. 1986) (whether officers knew that the
questions were related to an element of the crime); United
States v. Salgado, 292 F.3d 1169, 1174 (9th Cir. 2002)
(whether a “true booking” had already occurred and the
agency therefore already had access to the information);
Foster, 227 F.3d at 1103 (whether the questions were
separated in time and place from the incriminating
statements); Poole, 794 F.2d at 466–67 & n.3 (whether the
questioning had an “investigatory purpose” or was
conducted as part of “clerical processing” when a defendant
is received into jail). 1




    1
       We need not address the question of who has the burden of
establishing the applicability of the booking exception as our decision
would be the same whether Luna Zapien or the government had the
burden.
10                  UNITED STATES V. ZAPIEN

     C. The Booking Exception Applies to Questioning of
        Luna Zapien

    Contrary to Luna Zapien’s argument, the booking
exception can apply to questioning even after a defendant
has invoked his right to counsel. Foster, 227 F.3d at 1103;
Clayton v. Gibson, 199 F.3d 1162, 1172 (10th Cir. 1999).
The district court found that the questions asked of Luna
Zapien were biographical questions and concluded that they
were not reasonably likely to elicit an incriminating
response. We agree.

    In our de novo review of the record, we note that there is
no evidence that the agents made any “reference whatsoever
to the offense for which [he] had been arrested” or that “the
requested information [was] so clearly and directly linked to
the suspected offense.” United States v. Reyes, 225 F.3d 71,
77 (1st Cir. 2000). No factual findings by the district court
or evidence suggest that the agents “played upon” Luna
Zapien’s “weaknesses” or “knew that [he] ‘was unusually
disoriented or upset at the time.’” Foster, 227 F.3d at 1104
(quoting Innis, 446 U.S. at 303). And no findings indicate
that Luna Zapien “was particularly susceptible to [the] line
of questioning” or that the agents “used the questions as
‘mere pretext’ to elicit incriminating information.” United
States v. Clark, 982 F.2d 965, 968 (6th Cir. 1993). In all, the
record does not show that the agents should have known that
their questions were reasonably likely to elicit Luna Zapien’s
confession. 2


     2
      We do note that the DEA form in this case indicated that Luna
Zapien was illegally in the country. We have no indication or finding,
however, about when agents learned this information—whether this was
during or after the interview. Consequently, we have no basis for finding
                  UNITED STATES V. ZAPIEN                      11

    Both the questions themselves and the context in which
they were asked support the district court’s decision. The
biographical questions had no relation to Luna Zapien’s
crime. See Mata-Abundiz, 717 F.2d at 1280 (“The
relationship of the question asked to the crime suspected is
highly relevant.”). And by crediting the agents’ testimony,
the district court also confirmed that the questions were
asked in the context of booking procedures. That testimony
included Officer Ramirez’s explanation that he regularly
asks DEA Form 202 questions to gather emergency contact
information to provide to the Marshals. This explanation
provides both the officer’s subjective intent and an objective
reason for asking the questions. From an objective point of
view, the biographical questions did not amount to
interrogation because they were not reasonably likely to
elicit Luna Zapien’s incriminating response. See Booth,
669 F.2d at 1238.

   We affirm the district court’s invocation of the booking
exception and its denial of the motion to suppress Luna
Zapien’s voluntary confession.

    AFFIRMED.




that Luna Zapien’s immigration status was used or leveraged by the
agents when questioning him.
