Unpublished

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
partial
denial
of
his
motion
to
suppress
Smith appeals the

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 Smiths 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 cars 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
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: Smiths visibly pregnant girlfriend, Latasha Pearson, who,
like Smith, had a previous felony conviction, and an unidentified
man.
Upon entering the house, the officers separated.
Eubanks,
along
with
Detective
Cully
and
two
escorted Smith and Pearson to the living room.
other
Detective
officers,
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 Smiths
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.
3
house thats found is mine.

Its all mine statement).
Its all mine.
(J.A. at 47) (the
Smiths brief indicates that he made
the statement [c]ontemporaneously to the firearms being located,

(Appellants Br. at 7), while the Governments 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 courts 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
defendants statement as the actual recovery of the firearms,

making the district courts error irrelevant.
(Appellees 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, Youre going to let her go to jail for you?
109-10.)
(J.A. at 66,
In response, Smith admitted that the guns belonged to
him, and in response to further questioning
by Detective Eubanks,
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 Its
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 Its 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 threeyear 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).
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.
U.S. at 444.
384
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 Its 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
Cullys question asking whether there was anything in the house the
officers should know about.
We disagree.
Smiths statement
acknowledging ownership of the houses contents cannot logically be

described as directly responsive to Cullys general inquiry into
whether there was anything in the house of which the officers
should be aware.
The record is clear that Pearsons 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 Smiths admission.
that
the
exchange
between
Pearson
and
the
We conclude
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 mens and womens clothing was found in
the room in which drugs were discovered, it might be necessary to
secure an arrest warrant for the suspects daughter, it would not
be
reasonable
to
expect
an
suspect] (emphasis added)).
inculpatory
response
from
[the
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.
III.
In sum, we conclude that the district court did not err in
partially denying Smiths motion to suppress inculpatory statements
he made during the search of his house.
judgment of the district court.
We therefore affirm the
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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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

January 30, 2007

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Unpublished opinions are not binding precedent in this circuit.

Smith appeals the

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

Because Smith did not make the statement at issue on

appeal in response to interrogation or its functional equivalent,

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,

The officers then searched

the trunk and found a quantity of cocaine base.

After his arrest

He was transported directly to his residence, which was

approximately one block away.

residence, where they executed the residential search warrant.

Upon entering the house, the officers separated.

escorted Smith and Pearson to the living room.

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

Pearson replied that there

the recovered firearms and otherwise secured the residence.

The record is clear that Smith said, Everything in the

Citations to the J.A. refer to the joint appendix filed

house thats found is mine.

Its all mine.

(J.A. at 47) (the

Smiths brief indicates that he made

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

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

defendants statement as the actual recovery of the firearms,

In response, Smith admitted that the guns belonged to

him, and in response to further questioning

he stated that he obtained the guns from a crackhead or base

Smith was then taken to the police station

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

Smith sought to suppress both his initial Its

all mine statement and his later statements admitting ownership of

hearing on the suppression motion, the district court granted the

The district court granted

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

The district court

Smith timely appealed.

We have jurisdiction pursuant to 28

U.S.C.A. 1291 (West 2006).

The district court found that Smith was in custody at

Thus, the sole question at issue on

appeal is whether the district court erred in concluding that Smith

functional equivalent, which the Court further defined as any

Innis cautioned, however, that not

all statements obtained from a suspect in custody are to be

statement given freely and voluntarily without any compelling

acknowledging ownership of the houses contents cannot logically be

The record is clear that Pearsons response and

subsequent brief exchange with detective Eubanks identifying the

represent the functional equivalent of interrogation of Smith, as

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

suspect] (emphasis added)).