                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 06-4464



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


JOEY TREMAINE SMITH,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (7:04-cr-0046-F)


Submitted:   January 9, 2007                 Decided:   January 30, 2007


Before WILKINS, Chief Judge, and WILLIAMS and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Diana H. Pereria, Research and
Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Eric D. Goulian, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Joey Tremaine Smith entered a conditional guilty plea to one

count of being a felon in possession of a firearm, in violation of

18 U.S.C.A. §§ 922(g)(1) & 924 (West 2000).             Smith appeals the

partial   denial   of   his   motion   to   suppress   statements   that   he

contends were obtained in violation of Miranda v. Arizona, 384 U.S.

436 (1966).   Because Smith did not make the statement at issue on

appeal in response to interrogation or its functional equivalent,

we affirm.



                                       I.

     It is undisputed that on August 8, 2003, officers from the

Wilmington, North Carolina Police Department obtained warrants to

search Smith’s residence and vehicle, and decided to execute the

vehicle search warrant when they initiated a traffic stop of the

vehicle. The officers initiated the stop because Smith was driving

with a suspended or revoked license and the car had a burned-out

tail light.   During the traffic stop, the officers arrested Smith

for driving without a license.         A K-9 unit was called to the scene

in reference to the possible presence of narcotics in the vehicle,

and the K-9 alerted to the car’s trunk.        The officers then searched

the trunk and found a quantity of cocaine base.           After his arrest

for the traffic violation, Smith was not advised of his Miranda




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rights.       He was transported directly to his residence, which was

approximately one block away.

       At     least   seven   police   officers    escorted    Smith    to   the

residence, where they executed the residential search warrant.

When the officers and Smith arrived at the house, two people were

inside: Smith’s visibly pregnant girlfriend, Latasha Pearson, who,

like Smith, had a previous felony conviction, and an unidentified

man.       Upon entering the house, the officers separated.           Detective

Eubanks,      along   with    Detective   Cully   and   two   other    officers,

escorted Smith and Pearson to the living room.                Detective Cully

asked Smith and Pearson “if there was anything in the house he

needed to know about.”         (J.A. at 64.)*     Pearson replied that there

were two firearms in the bedroom and also apparently implied that

the firearms belonged to her. Detective Eubanks asked where in the

bedroom the guns were located, and she replied that one was in the

pocket of a coat hanging in the closet and one was on a shelf in

the closet. Detective Eubanks then proceeded to the bedroom, where

he located the two firearms in the closet.              Officers photographed

the recovered firearms and otherwise secured the residence.

       The above facts are undisputed, but there exists some dispute

as to the timing of the statement that is the subject of Smith’s

appeal.       The record is clear that Smith said, “Everything in the



       *
      Citations to the “J.A.” refer to the joint appendix filed
with this appeal.

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house that’s found is mine.     It’s all mine.”          (J.A. at 47) (the

“It’s all mine” statement).    Smith’s brief indicates that he made

the statement “[c]ontemporaneously to the firearms being located,”

(Appellant’s Br. at 7), while the Government’s brief indicates that

he made the statement “[a]fter the guns were recovered,” (J.A. at

5). The district court found that Smith made the statement “[u]pon

hearing that the firearms had been located.” (J.A. at 109.)               On

appeal, the Government concedes that “[t]he record reflects that

the district court’s finding that the defendant made his admission

‘[u]pon hearing that the firearms had been located’ . . . is

unsupported,” but argues that “[t]he imminent discovery of the

firearms   would   have   provided       the   same   motivation   for   the

defendant’s statement as the actual recovery of the firearms,”

making the district court’s error irrelevant.           (Appellee’s Br. at

11-12.)

     It is undisputed that after Smith claimed ownership of the

guns, Sergeant Pettus informed Detective Eubanks that Smith had

asserted responsibility for the guns. Detective Eubanks confronted

Smith and Pearson with their inconsistent statements, stating that

someone was lying about ownership of the guns.           Pearson responded

that she was trying to protect Smith, and Detective Eubanks asked

Smith, “You’re going to let her go to jail for you?”           (J.A. at 66,

109-10.)   In response, Smith admitted that the guns belonged to

him, and in response to further questioning           by Detective Eubanks,


                                     4
he stated that he obtained the guns from a “crackhead” or “base

head.”     (J.A. at 67.)   Smith was then taken to the police station

for processing, where he was advised of his Miranda rights and

chose to assert his right to counsel and his right to remain

silent.

        In April 2004, a grand jury in the Eastern District of North

Carolina returned a one-count indictment charging Smith with being

a felon in possession of a firearm, in violation of 18 U.S.C. §§

922(g)(1) & 924.    Smith sought to suppress both his initial “It’s

all mine” statement and his later statements admitting ownership of

the guns and acknowledging their source.         After conducting a

hearing on the suppression motion, the district court granted the

motion in part and denied it in part.      The district court granted

the motion to suppress with respect to the later statements, which

the Government conceded were obtained in violation of Miranda, but

denied suppression of the earlier “It’s all mine” statement,

finding that it was made voluntarily.

     Pursuant to a plea agreement in which Smith reserved the right

to appeal the order partially denying his suppression motion,

Smith entered a conditional guilty plea.         The district court

sentenced him to 63 months’ imprisonment to be followed by a three-

year term of supervised release and ordered him to pay a $3,160

fine.    Smith timely appealed.   We have jurisdiction pursuant to 28

U.S.C.A. § 1291 (West 2006).


                                    5
                                       II.

     Miranda prohibits the prosecution from using “statements . .

. stemming from custodial interrogation of [a] defendant unless it

demonstrates the use of procedural safeguards effective to secure

the [Fifth Amendment] privilege against self-incrimination.”                384

U.S. at 444.    The district court found that Smith was in custody at

the time he made the challenged statement, and the Government does

not dispute that finding.            Thus, the sole question at issue on

appeal is whether the district court erred in concluding that Smith

made the “It’s all mine” statement voluntarily.

     In Rhode Island v. Innis, 446 U.S. 291 (1980), the Supreme

Court     defined     interrogation    as    “express   questioning   or    its

functional equivalent,” which the Court further defined as “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.”        Id. at 300-01.    Innis cautioned, however, that not

all statements obtained from a suspect in custody are to be

considered     the    product   of    interrogation.     Id.   at   300    (“Any

statement given freely and voluntarily without any compelling

influences is, of course, admissible in evidence.”).

        Smith argues that he made the statement in response to Officer

Cully’s question asking whether there was anything in the house the

officers should know about.             We disagree.      Smith’s statement


                                        6
acknowledging ownership of the house’s contents cannot logically be

described as directly responsive to Cully’s general inquiry into

whether there was anything in the house of which the officers

should be aware.    The record is clear that Pearson’s response and

subsequent brief exchange with detective Eubanks identifying the

precise location of the guns, coupled with the knowledge that their

discovery was imminent, prompted Smith’s admission.             We conclude

that   the   exchange   between   Pearson   and   the   officers   did    not

represent the functional equivalent of interrogation of Smith, as

the officers could not reasonably have foreseen that their exchange

with Pearson would prompt such an incriminating response from

Smith.   See Innis, 446 U.S. at 302-03; United States v. Calisto,

838 F.2d 711, 718 (3d Cir. 1988) (concluding that, even if it would

be reasonable to expect a suspect in custody during a search of his

home to make “a protest of some kind” upon hearing an officer

suggest that, because both men’s and women’s clothing was found in

the room in which drugs were discovered, it might be necessary to

secure an arrest warrant for the suspect’s daughter, it would not

be   “reasonable   to   expect    an   inculpatory   response    from    [the

suspect]” (emphasis added)).           Accordingly, we agree with the

district court that the statement Smith seeks to suppress was not

made in response to interrogation or its functional equivalent.




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                               III.

     In sum, we conclude that the district court did not err in

partially denying Smith’s motion to suppress inculpatory statements

he made during the search of his house.      We therefore affirm the

judgment of the district court.       We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.

                                                            AFFIRMED




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