                                                                                  FILED
                                                                      United States Court of Appeals
                                        PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          July 17, 2017

                                                                          Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                            Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                             No. 16-2060

GAVIN YEPA,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                           for the District of New Mexico
                         (D.C. No. 1:12-CR-00163-MCA-1)
                       _________________________________

Brian A. Pori, Office of the Federal Public Defender, Albuquerque, New Mexico, for
Defendant-Appellant.

James R.W. Braun, Assistant United States Attorney, (Damon P. Martinez, United States
Attorney, with him on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.
                        _________________________________

Before TYMKOVICH, Chief Judge, BALDOCK, and HARTZ, Circuit Judges.
                 _________________________________

HARTZ, Circuit Judge.
                         _________________________________

       The sole issue on appeal is whether self-incriminating statements by Defendant

Gavin Yepa during a search of his person authorized by a warrant were spontaneous or

were the result of interrogation. We affirm the district court’s ruling that the statements
were spontaneous. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm

Defendant’s conviction.

       I.     BACKGROUND

       Defendant was convicted by a jury in the United States District Court for the

District of New Mexico of first-degree felony murder in the perpetration of aggravated

sexual abuse in Indian country. See 18 U.S.C. §§ 1153 & 1111. Evidence at trial showed

that near midnight on December 28–29, 2011, Defendant knocked on the door of his

neighbor, Clint Sando, and told him that there was a woman at his house who was not

breathing. They ran to the house, where Sando found Lynette Becenti’s naked body on

the floor, covered in blood. A later autopsy determined that she was likely killed by a

shovel that was forced 15–16 inches into her vagina.

       Defendant was arrested at his home and advised of his rights. He said he wanted a

lawyer. He was then driven to the Jemez Pueblo Police Department about 2:45 a.m. FBI

Special Agent Ben Bourgeois obtained a telephonic warrant to search Defendant’s home

and his body. The warrant authorized photographing Defendant, taking his clothes for

analysis, taking a blood sample for intoxication, and swabbing areas of his body for DNA

testing.

       About 4:20 a.m. Bourgeois began executing the search of Defendant’s body in a

police-department conference room. He was assisted by the chief of the Jemez Police,

Mike Toya; the leader of the FBI’s Evidence Response Team (ERT), Diana Parker; and

another ERT member, Norm Sedillo. The search, which took a bit more than 50 minutes,

was audio-recorded; the recording was later transcribed. During the search, Defendant

                                            2
made various statements, some of which were apparently in Towa, the language of the

Jemez Pueblo. The record contains no translation of those portions.

       To analyze Defendant’s claim, we must quote in some detail the transcript of the

conversation during the search of his person. The officers’ statements alleged by

Defendant to constitute interrogation are italicized. We have deleted most expletives

from the transcript, but all the expletives were Defendant’s; we have reproduced the

officers’ statements unaltered. The recording shows the time that has elapsed during the

search, and we provide that information for the portions we quote. What is striking from

the recording is that Defendant’s incriminating statements are scattered throughout,

without any apparent connection to what is going on at the time, and that the officers are

focused on performing their search, rarely reacting in any way to what Defendant says

about the offense.

       Bourgeois began the search by informing Defendant that he and his team would

take some photos of Defendant and would then seize his clothes “because they’ve got

blood on them.” Supp. R., Vol. 1 at 3 (Tr.) (CD at 1:28–1:38). Next, Bourgeois

introduced Defendant to Diana Parker, stating “Gavin, this is my partner, Diana, she’s

gonna snap some pictures of you.” Id. at 5 (CD at 3:37–3:43). He also removed

Defendant’s handcuffs and instructed him how to stand for the photos. Without any

prompting, Defendant stated, “I’m not a killer, man. I’m not a murderer, man. I’m not

nothing like that, man. I’m just a normal guy, man. I came home, tried to get some

pussy, and pussy got me.” Id. at 6 (CD at 4:18–4:32). Bourgeois responded: “Okay.

Just follow Diana’s directions for right now.” Id. (CD at 4:32–4:35).

                                             3
       As the officers were taking photos, Bourgeois stated, “Hold on. Do you have any

scars? Marks? Anything like that? Hold on. Hold on. Let’s take one thing at a time.

Turn back around.” Id. at 7 (CD at 5:36–5:48) (emphasis added). The next thing

Defendant said was, “Don’t they have my file here already?” Id. (CD at 6:11–6:25). He

then complained about the cold, but followed that up with, “I can take more clothes off.”

Id. at 7–8 (CD at 7:00–7:09). After further photos, Defendant stated, “Be in this

predicament. I don’t (inaudible) get in trouble for killing anybody. I didn’t do anything.”

Id. at 8 (CD at 7:50–8:00). Parker responded, “Don’t worry about it. It’ll work out.

Face the wall.” See id. (CD at 8:00–8:03).

       Apparently responding to Defendant’s comment about the cold, Sedillo then

stated, “I’m trying to warm this up,” and Bourgeois added, “He’s a tough guy.” Id. at 8–

9 (CD at 8:04–8:10) (emphasis added). Defendant responded, “Yeah, man. Well, when

it comes to my son (inaudible). I wanna see my son. (Inaudible) accuse of me of killing

this lady.” Id. at 9 (CD at 8:10–8:34).

       While the officers continued taking photos, Defendant asked them to notify his

mother of his arrest. After Chief Toya said he would talk to her, Defendant again

asserted his innocence, stating, “You know, I’m not a murderer, man. This happened at

my house, dude. You know, of course I’m trying to get some pussy. I didn’t do shit,

man.” Id. at 11 (CD at 12:21–12:32). The officers did not respond to his assertion; but

Bourgeois asked for his mother’s name and phone number. Bourgeois then pointed out

abrasions on Defendant’s body that he wanted documented:



                                             4
      Bourgeois: Did you guys get this -- it almost looks like an abrasion right
      here.
      Parker: Behind the ears, yeah.
      Male Speaker: On the eyebrow there?
      Bourgeois: Yeah. Almost.
      Male Speaker: Yeah. That side.
      Defendant: That’s a pimple, man. (Inaudible). I don’t know what I did
      with my face. You guys are trying to figure out some. (Inaudible), man.
      (Inaudible). I’ve told you guys. I thought you guys were investigators,
      man.
      Parker: (Inaudible).
      Defendant: (Inaudible).
      Bourgeois: You’re not a real modest guy, are you?
      Defendant: Nope. No.
      Bourgeois: Okay. Tell you what we’re gonna do. I’m gonna do you a
      favor. Norm and I are gonna sit in here --
      Defendant: (Inaudible).
      Bourgeois: I’m gonna ask Frank to stay here, too.
      Defendant: That’s what I was thinking, I was like. Is he gay or something?
      Bourgeois: Let me have you back up against the wall a little bit more.
      Parker: You gotta focus with the very top ring, very top ring. You see it?
      Male Speaker: Okay. Let’s see.
      Defendant: My toes are bloody. My feet are bloody.
      Bourgeois: Hold on. Hold on.
      Defendant: My face is bloody.

Id. at 13–14 (CD at 14:43–16:19) (emphasis added).

      After the officers took some more photos and Defendant made some irrelevant

comments, he again attempted to engage the officers in conversation about the killing:

      Sedillo: Go ahead and leave the toes flattened out.
      Defendant: You guys really think I killed that chick or something? Off the
      top of your head.
      Sedillo: Diana should have a pack of swabs and get some of those.
      Defendant: What do you think -- you think I killed her? Or what?
      Bourgeois: No. We’re -- we’re just doing all the stuff that we normally
      would do.
      Defendant: What’s this procedure for real though? (Inaudible) like
      somebody killed her? Or what, man? What’s really going on, man? I
      don’t even know, man. I’m tripping hard core, man. Like, man.
      Bourgeois: Okay. (Inaudible) scale.

                                            5
      Defendant: Just died at my house, dude. And I don’t know.
      Sedillo: You can go ahead and stand up. Thank you.

Id. at 17–18 (CD at 22:08–23:20).

      As the officers proceeded with their examination, Defendant pointed out some

abrasions on his body:

      Sedillo: Okay. Other knee. A little abrasion. Okay.
      Defendant: That one and this one.
      Bourgeois: (Inaudible).
      Defendant: I’ve got a bunch more on this side and that side. I’ve got one
      right here (inaudible).
      Sedillo: Take a look at the knee over here.
      Defendant: I’ve got some over here.

Id. at 19 (CD at 24:32–24:55). And he continued to remark on the circumstances of Ms.

Becenti’s death:

      Parker: We might as well photo the clothes before we put them in the bags,
      too, huh?
      Bourgeois: Yeah.
      Sedillo: Okay. Right foot.
      Parker: Right foot.
      Defendant: You guys are investigators, right?
      Ms. Parker: Pardon?
      Defendant: You guys are investigators, right?
      Parker: Uh-huh.
      Defendant: I was really wearing clothes at that time? Really? You guys
      really think that?
      Parker: What are you talking about?
      Defendant: I was really wearing clothes?
      Sedillo: Left foot.
      Parker: Two left foot.

Id. at 21–22 (CD at 28:57–29:33) (emphasis added).

      The photography continued. When Chief Toya reported to Defendant that he had

talked to Defendant’s mother, Defendant complained that the victim had died in his


                                           6
house. He said that he was tired and twice said that he wanted to sleep. He then

requested some water. That led to the following exchange:

      Sedillo: I’ll get you some water.
      Defendant: Oh, man, it got sick, dude. (Inaudible). (Inaudible) at my
      house or what?
      Male Speaker: (Inaudible).
      Defendant: How come you -- dude. (Inaudible).
      Male Speaker: (Inaudible).
      Defendant: (Inaudible). By the feed store. (Inaudible).
      Male Speaker: (Inaudible). [Perhaps “What’s that?”]
      Defendant: (Inaudible). That chick.
      Bourgeois: With who?
      Defendant: She was by herself. Me -- I was with -- I don’t wanna mention
      no names right now and get anybody in trouble, you know. But we picked
      her up over there, and then (inaudible). (Inaudible), you know, and
      everything was good. She had (inaudible). All that doing herself, man.
      Guarantee crazy, man. We were in that room on this side of my mom’s. I
      said, my mom’s gonna be home, let’s go on the other side, man. I didn’t
      even know she was bleeding like that, man. Nobody else was there. We
      just got dropped off over there at the house.
      Male Speaker: Dropped off --
      Defendant: Yeah. (Inaudible).
      Bourgeois: Who were you with?
      Male Speaker: They won’t get in any trouble for just dropping you off.
      Who were you with?
      Defendant: I’m not gonna say anything if I -- I’ll probably talk to maybe
      later, dude.
      Male Speaker: Okay.
      Defendant: I’m gonna be in trouble. (Inaudible).
      Bourgeois: Maybe you don’t wanna sit down, but I wanna sit down.
      Defendant: I just wanna lay down. I wanna (inaudible). Aye, there’s no
      way I would do such a thing, man. After five months sober (inaudible), I
      took two shots (inaudible), bro. Three shots. And then all of this stupid
      drama happens. I’ve been good, man. (Inaudible). I changed for my boy
      man. Oh man. My son (inaudible). Thank you, bro.

Id. at 29–31 (CD at 44:27–49:20) (emphasis added). Some portions labeled “inaudible”

in this exchange appear to be statements in Towa by Defendant and “Male Speaker,” who

is likely Chief Toya. The officers concluded the search soon after this exchange.

                                            7
       Defendant moved to suppress his statements from this recording, arguing that they

were the incriminating product of unlawful interrogation. The district court overruled the

objection, stating:

               I find that defendant’s statements during the execution of the search
       warrant for the defendant’s person were spontaneous and were not the
       result of interrogation. I further find that his responses to the very few
       follow-up questions noted, I believe, at Exhibit 195 at Page 29, were simply
       neutral efforts to clarify his spontaneous volunteered statements, and did
       not constitute interrogation . . . .
               I also find that they were not obtained in violation of the Fifth
       Amendment’s Due Process Clause. As previously noted, the statements
       were spontaneous, not the products of questioning by the agents executing
       the search warrant.
               The audio transcript reveals that the agents executing the warrant
       were business-like but polite toward defendant at all times. There is
       absolutely no evidence that I can see here of any implied or explicit threats
       or coercion or any other form of law enforcement overreaching. The agents
       were in a position to hear the defendant’s statements because they were
       executing a search warrant for his person, and the requisite course in
       [coercive?] police activity . . . is totally absent in this case.

R., Vol. 4 at 1136–37.

       II.    ANALYSIS

             A. Governing Law

       When an individual who is subjected to custodial police interrogation requests an

attorney, “the interrogation must cease until an attorney is present.” Miranda v. Arizona,

384 U.S. 436, 474 (1966). “[T]he term ‘interrogation’ . . . refers not only to express

questioning, but also to 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.” Rhode Island v. Innis, 446

U.S. 291, 301 (1980). We ask whether the officers “should have known that their words

                                             8
or actions—whether framed as a question or not—were reasonably likely to elicit an

incriminating statement.” United States v. Cash, 733 F.3d 1264, 1277 (10th Cir. 2013).

This is an “objective [inquiry,] . . . and we focus on the perceptions of a reasonable

person in the suspect’s position rather than the intent of the investigating officer.” Id.

(internal quotation marks omitted). Evidence obtained as a result of a custodial

interrogation after an individual requested an attorney must be suppressed. See Edwards

v. Arizona, 451 U.S. 477, 479–80 (1981). But “[a]ny statement given freely and

voluntarily without any compelling influences is, of course, admissible in evidence.”

Miranda, 384 U.S. at 478.

       It is essential to recognize that “custody does not automatically render [every]

exchange an interrogation.” Fox v. Ward, 200 F.3d 1286, 1298 (10th Cir. 2000).

Although someone in custody may feel psychological pressure to speak arising from the

fact of custody alone, we emphasize that “words or actions on the part of the police . . .

normally attendant to arrest and custody” are not interrogation. Innis, 446 U.S. at 301.

Also, “[n]ot every sentence punctuated by a question mark constitutes an interrogation.”

Cash, 733 F.3d at 1277 (follow-up question to clarify remark by defendant was not an

interrogation). And “a statement following a police officer’s question may qualify as at

least the equivalent of being volunteered when it is unresponsive.” Wayne R. LaFave, et.

al, 2 Crim. Proc. § 6.7(d) (4th ed. 2016 update) (LaFave); see United States v. Gay, 774

F.2d 368, 379 (10th Cir. 1985) (evidence admissible when “the incriminating portion of

the statement was unresponsive to the [police] request”); Parson v. United States, 387

F.2d 944, 946 (10th Cir. 1968) (“The statement to the effect that the car was stolen was

                                              9
not responsive to the inquiry about the key and was completely voluntary. Miranda . . .

does not prohibit such voluntary statements.”).

             B. Standard of Review

       The district court held that Defendant’s statements were spontaneous and that no

interrogation occurred. Defendant asks that we review that decision de novo because the

facts are undisputed, while the government advocates for clear-error review of the district

court’s finding that Defendant’s statements were spontaneous. There is some merit to

each position. “[W]hen reviewing the district court’s order denying a motion to suppress

statements under the Fifth Amendment, we accept the district court’s factual findings

unless clearly erroneous and view the evidence in the light most favorable to the

Government.” Cash, 733 F.3d at 1276. Whether, based on that view of the evidence, an

officer’s statement is interrogation is a legal matter we review de novo. See id. at 1276–

78; United States v. Davis, 773 F.3d 334, 338 (1st Cir. 2014) (Baldock, J., sitting by

designation) (“[T]he determination as to whether police interrogation occurred at all

depends on the totality of the circumstances, a balancing analysis commonly considered

amenable to plenary review where, as here, the underlying historical facts are not in

dispute.” (original brackets and internal quotation marks omitted)); United States v.

Rommy, 506 F.3d 108, 134 (2d Cir. 2007) (“On de novo review of [the defendant’s] legal

challenge, we conclude that such [follow-up] questions did not transform the meeting

into an interrogation . . . .”). But even when it is determined that officers engaged in

interrogation, whether the suspect’s statement was spontaneous (or instead made as a

result of the interrogation) is a factual finding that we review for clear error. See United

                                             10
States v. Sherwood, 98 F.3d 402, 409 (9th Cir. 1996), as amended (Oct. 28, 1996); United

States v. Zuber, 485 F. App’x 921, 923 (10th Cir. 2012) (unpublished).

             C. Defendant’s Arguments

       Defendant seeks to suppress incriminating statements that he made during the

search of his body. His opening brief refers to “Mr. Yepa acknowledging blood and

scratches on his body, admitting he wanted to go to sleep, implying he had been naked

while blood was flying, indicating he was alone with Ms. Becenti and describing

conscious movement from one part of his house to the other that matched the blood

spatter testimony.” Aplt. Br. at 42. He must establish that the challenged statements

were (1) the result of words or actions of law-enforcement officers (2) that constituted

interrogation. In our view he fails in that endeavor.

       To begin with, the conduct of the search was not in itself interrogation. See Innis,

446 U.S. at 301 (“words or actions on the part of the police . . . normally attendant to

arrest and custody” are not interrogation). Further, the district court found that all

Defendant’s statements “were spontaneous and were not the result of interrogation.” R.,

Vol. 4 at 1136. In particular, the court noted that the questions “with who?” and “who

were you with?” about 45 and 47 minutes into the search were follow-up questions that

“were simply neutral efforts to clarify [Defendant’s] spontaneous, volunteered

statements, and did not constitute interrogation.” Id.

       Defendant disputes the district court’s findings and conclusions, but we are not

persuaded that the court committed reversible error. First, Defendant seeks to suppress

his statements acknowledging that his toes, feet, and face were bloody, and that he had

                                             11
abrasions on his body. He claims that those statements were the product of Bourgeois’s

question: “Do you have any scars? Marks? Anything like that?” Tr. at 7. We reject the

argument. Bourgeois asked his question five minutes and 37 seconds into the search, and

Defendant’s next statement—“Don’t they have my file here already?”—was not

responsive. Tr. at 7 (CD at 5:37–6:15). It was not until more than 10 minutes later, as he

was being photographed, that Defendant stated that his toes, feet, and face were bloody.

And it was eight minutes after that when Defendant pointed out some abrasions on his

body. The district court did not clearly err in finding that Defendant’s statements were

spontaneous, not made in response to Bourgeois’s much earlier question.

       Defendant next argues that Bourgeois goaded him into making incriminating

statements by saying, “He’s a tough guy,” Tr. at 9, and “You’re not a real modest guy,

are you?” id. at 14. He seeks to suppress statements that he was tired, see id. at 24, 25,

and that “it got sick,” id. at 29, as the fruits of these two comments. Defendant’s

argument depends on a strained interpretation of what Bourgeois said. The district court

did not clearly err in finding that Bourgeois and the others were “business-like but polite”

throughout the search. R., Vol. 4 at 1137. Bourgeois’s two comments do not appear rude

or combative in context. Although their meanings are not entirely clear from the record,

the first appears to be a reference to Defendant’s coping with the cold, while the second

to his comfort with being photographed. Neither do Defendant’s responses to those two

comments suggest that he interpreted them as goading or coercive. We conclude that the

two comments did not constitute interrogation. Moreover, no reasonable person could



                                             12
have found that Defendant’s statements 16, 18, and 29 minutes after the second of the

two comments were induced by the comments.

       Defendant claims that he was particularly vulnerable because he was tired,

intoxicated, and under tremendous emotional stress. He argues that a reasonable officer

would necessarily conclude that it would not take much (say, a little goading) to induce

him to make incriminating statements, and Bourgeois’s comments must therefore be

considered interrogation. See Innis, 446 U.S. at 302 n.8 (“Any knowledge the police may

have had concerning the unusual susceptibility of a defendant 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 from the suspect.”). We are not persuaded. Given the district court’s fact

finding about the tone of the officers’ statements, we do not believe that a reasonable

officer would think that his statements would likely lead Defendant to incriminate

himself.

       Finally, Defendant argues that 45 minutes into the search the officers explicitly

interrogated him about the homicide. To keep the context clear, we repeat in full the

exchange that included the most incriminatory statements that he challenges:

       Sedillo: I’ll get you some water.
       Defendant: Oh, man, it got sick, dude. (Inaudible). (Inaudible) at my
       house or what?
       Male Speaker: (Inaudible).
       Defendant: How come you -- dude. (Inaudible).
       Male Speaker: (Inaudible).
       Defendant: (Inaudible). By the feed store. (Inaudible).
       Male Speaker: (Inaudible). [Perhaps “What’s that?”]
       Defendant: (Inaudible). That chick.

                                            13
       Bourgeois: With who?
       Defendant: She was by herself. Me -- I was with -- I don’t wanna mention
       no names right now and get anybody in trouble, you know. But we picked
       her up over there, and then (inaudible). (Inaudible), you know, and
       everything was good. She had (inaudible). All that doing herself, man.
       Guarantee crazy, man. We were in that room on this side of my mom’s. I
       said, my mom’s gonna be home, let’s go on the other side, man. I didn’t
       even know she was bleeding like that, man. Nobody else was there. We
       just got dropped off over there at the house.
       Male Speaker: Dropped off --
       Defendant: Yeah. (Inaudible).
       Bourgeois: Who were you with?
       Male Speaker: They won’t get in any trouble for just dropping you off.
       Who were you with?
       Defendant: I’m not gonna say anything if I -- I’ll probably talk to maybe
       later, dude.
       Male Speaker: Okay.
       Defendant: I’m gonna be in trouble. (Inaudible).
       Bourgeois: Maybe you don’t wanna sit down but I wanna sit down.
       Defendant: I just wanna lay down. I wanna (inaudible). Aye, there’s no
       way I would do such a thing, man. After five months sober (inaudible), I
       took two shots (inaudible), bro. Three shots. And then all of this stupid
       drama happens. I’ve been good, man. (Inaudible). I changed for my boy
       man. Oh man. My son (inaudible). Thank you, bro.

Tr. at 29–31 (CD at 44:27–49:20) (emphasis added).

       The first of Defendant’s statements about the murder in this passage is: “Oh, man,

it got sick, dude.” The district court was clearly correct in finding that the statement was

not in response to interrogation. No one could possibly construe, “I’ll get you some

water,” as an interrogation.

       In the remainder of this portion of the transcript, the officers asked three or four

questions: “What’s that?”; “With who?”; and “Who were you with?” The district court

stated that none of those questions constituted interrogation, because they “were simply

neutral efforts to clarify [Defendant’s] spontaneous volunteered statements.” R., Vol. 4


                                             14
at 1136. We agree regarding the first two questions: “What’s that?” and “With who?”

Perhaps there could be some doubt about the final two questions—in which an officer

asked, “Who were you with?”—because the officers appeared to be pressing the point

after Defendant declined to respond initially. But we need not resolve the issue, because

Defendant never answered the questions. The statements after those questions that

Defendant seeks to suppress were not responsive and therefore should be considered

spontaneous and volunteered. See Gay, 774 F.2d at 379 (unresponsive statement is

admissible); Parson, 387 F.2d at 946 (same); LaFave § 6.7(d) (unresponsive answer may

qualify as equivalent of being volunteered).

       Defendant suggests on appeal, however, that some interrogation took place in the

“inaudible” parts of this exchange. Some of those parts may have been in Towa, and

Defendant asserts: “Although a conversation with Chief Toya apparently started in

Towa, the audible English words [Defendant] spoke seemed as though he were answering

a question.” Aplt. Br. at 48. But without a better factual foundation, that assertion is

speculation. First, the portion of the possibly Towa conversation spoken by anyone other

than Defendant is very brief, at most only a few words. The brevity makes it unlikely

that it consisted of any significant questioning. Second, an interrogation at that point in

the execution of the search warrant would have been totally out of character with the

conduct of the officers for the preceding 45 minutes. As already noted, the officers were

focused on executing the warrant and did nothing to draw Defendant out regarding the

death of Ms. Becenti. And third, the one person who undoubtedly could understand any

conversation in Towa that might be audible on the recording is Defendant; yet he has

                                               15
presented no evidence regarding what was said. In this circumstance, we decline to

reverse and remand for the district court to make findings regarding the meaning of any

recorded conversation in Towa.

      III.   CONCLUSION

      We AFFIRM Defendant’s conviction.




                                           16
