PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GAVIN YEPA, Defendant - Appellant. No. 16-2060

________________ _________________ 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 Pub lic 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 Me xico, for Plaintiff-Appellee.

________________ _________________ Before TYMKOVICH , Chief Judge, BALDOCK , and HARTZ , Circuit Judges.

________________ _________________ HARTZ , Circuit Judge.

________________ _________________ The sole issue on appeal is whether se lf-incriminating statements by Defendant Gavin Yepa during a search of his person aut horized by a warrant were spontaneous or were the result of interrogation. We affirm th e district court’s ruling that the statements FILED United States Court of Appeals Tenth Circuit 

### July 17, 2017
Elisabeth A. Shumaker Clerk of Court2 were spontaneous. Exercising jurisdicti on under 28 U.S.C. § 1291, we affirm Defendant’s conviction.
I. BACKGROUND Defendant was convicted by a jury in th e United States District Court for the District of New Mexico of fi rst-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 Decembe r 28–29, 2011, Defendant k nocked on the d oor 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 B ecenti’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 advi sed of his rights. He said he wanted a lawyer. He was then driven to the Jemez Pueblo Police Depa rtment about 2:45 a.m. FBI Special Agent Ben Bourgeois obtained a telep honic warrant to search Defendant’s home and his body. The warrant authorized p hotographing Defendant, ta king 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 executin g 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 Eviden ce Response Team (ERT), Diana Parker; and another ERT member, Norm Sedill o. The search, which took a bit more than 50 minutes, was audio-recorded; the recording was later transcribed. During the search, Defendant3 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 quot e in some detail the transcript of the conversation during the search of his pers on. The officers’ st atements alleged by Defendant to constitute interrogation are italic ized. We have deleted most expletives from the transcript, but all the expletives were Defendant’s; we have reproduced the officers’ statements unaltered. The record ing shows the time that has elapsed during the search, and we provide that in formation for the portions we quote. What is striking from the recording is that Defendant’s incrimin ating statements are scattered throughout, without any apparent connection to what is going on at the tim e, and that the officers are focused on performing their sear ch, rarely reacting in any wa y to what Defendant says about the offense. Bourgeois began the search by informing Defendant that he and his team would take some photos of Defenda nt 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 ho w 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 g uy, man. I came home, tried to get some pussy, and pussy got me.” Id. at 6 (CD at 4:18–4:32). Bo urgeois responded: “Okay. Just follow Diana’s directions for right now.” Id. (CD at 4:32–4:35).4 As the officers were taking photo s, 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) (em phasis 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 a bout the cold, but followed that up with, “I can take more clothes off.” Id. at 7–8 (CD at 7:00–7:09). After furthe r photos, Defendant stated, “Be in this predicament. I don’t (inaudible) get in trouble for killing anybody. I di dn’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 co ld, 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). Defe ndant 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 photo s, Defendant asked them to notify his mother of his arrest. After Chief Toya sa id he would talk to her, Defendant again asserted his innocence, stati ng, “You know, I’m not a murderer, man. This happened at my house, dude. You know, of course I’m tr ying 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 mothe r’s name and phone number. Bourgeois then pointed out abrasions on Defendant’s body that he wanted documented:5 Bourgeois: Did you guys get this -- it almost look s 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. (In audible). 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 w ith 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 th e officers in conversa tion about the killing: Sedillo: Go ahead and leav e the toes flattened out. Defendant: You guys really think I killed that chick or something? Off the top of your head. Sedillo: Diana should ha ve a pack of swabs and get some of those. Defendant: What do you think -- yo u 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 trippi ng hard core, man. Like, man. Bourgeois: Okay. (Inaudible) scale.6 Defendant: Just died at my house, dude. And I don’t know. Sedillo: You can go ahead an d 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 th is 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 cont inued to remark on the circumstances of Ms. Becenti’s death: Parker: We might as well photo the clot hes 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 clothe s 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 28:57–2 9:33) (emphasis added). The photography continued. When Chief Toya reported to Defendant that he had talked to Defendant’s mother, Defendant comp lained that the victim had died in his7 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 th e feed store. (Inaudible). Male Speaker: (Inaudible). [Perhaps “ What’s that? ”] Defendant: (Inaudibl e). 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 (ina udible). (Inaudibl e), you know, and everything was good. She had (inaudib le). 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 bleedi ng 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 (inaudi ble). 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 an d “Male Speaker,” who is likely Chief Toya. The officers conclude d the search soon after this exchange.8 Defendant moved to suppress his statements from this recording, arguing that they were the incriminating product of unlawful in terrogation. 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 we re 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 spontan eous volunteered statements, and did not constitute interrogation . . . . I also find that they were not ob tained 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 de fendant at all times. There is absolutely no evid ence that I can see here of any implied or explicit threats or coercion or any other form of law enforcement overreach ing. The agents were in a position to hear the defenda nt’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 ceas e 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 incriminati ng response from the suspect.” Rhode Island v. Innis , 446 U.S. 291, 301 (1980). We ask whether the offi cers “should have kn own that their words9 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 percepti ons of a reasonable person in the suspect’s position rather than the intent of the investigating officer.” Id. (internal quotation marks omitted). Evid ence 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). Bu t “[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 “cust ody does not automatically render [every] exchange an interrogation.” Fox v. Ward , 200 F.3d 12 86, 1298 (10th Cir. 2000). Although someone in custody may feel psychol ogical pressure to speak arising from the fact of custody alone, we emphasize that “wor ds 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 constitu tes 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 unrespons ive.” Wayne R. LaFave, et. al, 2 Crim. Proc. § 6.7(d) (4th ed. 2016 updat e) (LaFave); see United States v. Gay , 774 F.2d 368, 379 (10th Cir. 1985) (evidence admi ssible 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 was10 not responsive to the inquiry about th e 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 th at decision de novo because the facts are undisputed, while the government advoc ates for clear-error review of the district court’s finding that Defendant’s statements were spontaneous. Ther e is some merit to each position. “[W]hen reviewing the district court’s order denying a motion to suppress statements under the Fifth Am endment, we accept the district court’s factual findings unless clearly erroneous and view the evid ence 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. 2 014) (Baldock, J., sitting by designation) (“[T]he determination as to whether police interrogation occurred at all depends on the totality of th e circumstances, a balancing analysis commonly considered amenable to plenary review where, as here , the underlying historical facts are not in dispute.” (original brackets and in ternal 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 di d not transform the meeting into an interrogation . . . .”). But even when it is determin ed that officers engaged in interrogation, whether the suspect’s statemen t was spontaneous (or instead made as a result of the interrogation) is a factual finding that we review for clear error. See United11 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 incriminati ng statements that he made during the search of his body. His opening brief re fers to “Mr. Yepa acknowledging blood and scratches on his body, admitting he wanted to go to sleep, implyi ng he had be en naked while blood was flying, indicating he wa s 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 mu st 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 sear ch was not in itself interrogation. See Innis , 446 U.S. at 301 (“words or actions on the pa rt 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 clarif y [Defendant’s] spontaneous, volunteered statements, and did not c onstitute 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, fe et, and face were bloody, and that he had12 abrasions on his body. He cl aims that those statements we re the product of Bourgeois’s question: “Do you have any scars? Marks? Anything like th at?” 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 De fendant pointed out some abrasions on his body. The district court did not clearly err in finding that Defenda nt’s statements were spontaneous, not made in response to Bourgeois’s much earlier question. Defendant next argues that Bourgeoi s 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 thes e 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., Vo l. 4 at 1137. Bourgeois’s tw o comments do not appear rude or combative in context. A lthough their meanings are not entirely clear from the record, the first appears to be a refe rence to Defendant’s coping w ith the cold, while the second to his comfort with being photographed. Ne ither do Defendant’s responses to those two comments suggest that he interp reted them as goading or coercive. We conclude that the two comments did not constitute interrogation. Moreover, no reasonable person could13 have found that Defendant’s statements 16, 18, and 29 minutes afte r the second of the two comments were induced by the comments. Defendant claims that he was particul arly vulnerable because he was tired, intoxicated, and under tremendous emotional st ress. He argues that a reasonable officer would necessarily conclude th at it would not take much (s ay, a little goading) to induce him to make incriminating statements, a nd 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 th e unusual susceptibility of a defenda nt 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 r easonably likely to elicit an incriminating response from the suspect.”). We are not pers uaded. Given the district court’s fact finding about the tone of the officers’ stat ements, we do not believe that a reasonable officer would think that his statements wo uld likely lead Defenda nt to incriminate himself. Finally, Defendant argues that 45 minutes into the search the officers explicitly interrogated him about the homic ide. 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 th e feed store. (Inaudible). Male Speaker: (Inaudible). [Perhaps “ What’s that? ”] Defendant: (Inaudibl e). That chick.14 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 (ina udible). (Inaudibl e), you know, and everything was good. She had (inaudib le). 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 bleedi ng 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 (inaudi ble). Thank you, bro. Tr. at 29–31 (CD at 44:27–4 9:20) (emphasis added). The first of Defendant’s statements about th e murder in this passage is: “Oh, man, it got sick, dude.” The district court was clear ly 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 tr anscript, 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 constitu ted interrogation, because they “were simply neutral efforts to clarify [Def endant’s] spontaneous volunteere d statements.” R., Vol. 415 at 1136. We agree regarding the first two questions: “What’s that?” and “With who?” Perhaps there could be some doubt about th e final two questions—in which an officer asked, “Who were you with?”—because the o fficers appeared to be pressing the point after Defendant declined to respond initially. But we need not resolv e the issue, because Defendant never answered the questions. Th e statements after t hose questions that Defendant seeks to suppress were not respon sive 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, th at 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 To ya 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 portio n of the possibly Towa conver sation spoken by anyone other than Defendant is very brie f, at most only a few words. The brevity makes it unlikely that it consisted of any signifi cant 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 alr eady 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 unde rstand any conversation in Towa that might be audible on the recording is Defendant; yet he has16 presented no evidence regardin g what was said. In this circumstance, we decline to reverse and remand for the district court to make findings regardi ng the meaning of any recorded conversation in Towa.
III. CONCLUSION We AFFIRM Defendant’s conviction.