Arapahoe County District Court Case No. 24CR53 Honorable
David N. Karpel, Judge
Attorneys for Plaintiff-Appellant:
Amy L.
Padden, District Attorney, Eighteenth Judicial District
Laura
Wood, Deputy District Attorney
Centennial, Colorado
Attorneys for Defendant-Appellee:
Tucker
Grosgebauer, P.C.
Grant
W. Grosgebauer
Jason
C. Fisher
Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court, in which
CHIEF JUSTICE MARQUEZ, JUSTICE BOATRIGHT, JUSTICE GABRIEL,
JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER
joined.
2
OPINION
HOOD
JUSTICE
¶1
Defendant, Patrick Nkongolo, has been charged with multiple
counts of sexual assault on a child, A.K., as a pattern of
abuse. In this interlocutory appeal, the prosecution
challenges the trial court's pretrial order, which
suppressed a textmessage conversation between Nkongolo and
A.K.'s father, D.K., that occurred on November 15, 2023.
The trial court concluded that the statements Nkongolo made
during that conversation were the product of police coercion,
which rendered them involuntary and inadmissible at trial.
¶2
D.K. initiated the conversation at the behest of law
enforcement, and a police officer guided D.K. through the
questioning. So, it's undisputed that D.K. acted as an
agent of the police during the November 15 conversation. We
conclude, however, that D.K.'s conduct wasn't
coercive. And even if it had been, this alleged coercion
didn't play a significant role in inducing Nkongolo's
side of the text exchange. Consequently, we reverse the
portion of the trial court's order that suppressed
Nkongolo's November 15 statements.
I.
Facts and Procedural History
¶3
In 2023, A.K. told a therapist that Nkongolo had repeatedly
sexually assaulted her over the previous three years,
beginning when she was eleven years old. A.K. referred to
Nkongolo as her uncle, even though they are not related, and
explained that he was a close family friend who had lived
with her family for
3
several years. The therapist reported the outcry to Arapahoe
County Human Services ("ACHS"), and a case worker
at ACHS reported it to the police.
¶4
As part of the police investigation into the allegations, the
investigating officer asked D.K. to initiate a "pretext
conversation" with Nkongolo by text message. As the
officer later explained at the pretrial hearing, a pretext
conversation is "an investigative tool, to see how a
suspect is going to respond to involved parties in the
case." The officer testified that she told D.K. ahead of
time what type of messages she wanted him to send, and during
the conversation, she made suggestions to D.K. about what to
say and, more specifically, what questions to ask.
¶5
D.K.'s first attempt at the pretext conversation on
November 2 was unsuccessful. Nkongolo sent D.K. a message a
few days later, on November 7, but D.K. said he couldn't
talk. Finally, on November 15, the pretext conversation at
issue occurred.[1]
¶6
At the beginning of the conversation, D.K. told Nkongolo that
he wanted to talk about what had happened with A.K. He then
told Nkongolo, "[Y]ou are a
4
member of the family, you must tell me sincerely that it is
happening to see what we can do." D.K. let Nkongolo know
that A.K. had already spoken to him, but said he wanted to
hear from Nkongolo. Nkongolo downplayed what had occurred,
explaining it involved nothing more than hugs and jokes. But
D.K. said that didn't align with what A.K. had told him
and that he "need[ed] the truth to see what we can do to
keep this in the family." When Nkongolo again said it
was just a hug, D.K. confronted him with A.K.'s
accusation that Nkongolo had put his "mouth [o]n her
breasts." Nkongolo's version remained the same.
Although, during this conversation, Nkongolo never explicitly
admitted to any unlawful sexual contact, he eventually
apologized for upsetting A.K. and admitted to giving her
"a little friendly kiss" when she hugged him.
¶7
D.K. asked Nkongolo several more times whether he had kissed
A.K.'s breasts, imploring Nkongolo to be honest, but
Nkongolo never confirmed or denied that allegation. Finally,
D.K. ended the conversation by saying, "I wanted this to
be dealt with in the family but apparently you don't want
to so I'm going to do what [my wife] wants us to
do."
¶8
The prosecution subsequently charged Nkongolo with five
counts of sexual assault on a child as a pattern of abuse.
Before trial, Nkongolo moved to suppress all three of the
November text exchanges.
5
¶9
At the hearing on the motion, the trial court heard testimony
from the investigating officer and reviewed the text
messages. It then concluded that the statements Nkongolo made
on the first two dates, November 2 and 7, were voluntary and
admissible, and it denied suppression of those statements.
¶10
The trial court also concluded, however, that the prosecution
had failed to show by a preponderance of the evidence that
the November 15 statements were voluntary. The court found
that D.K.'s repeated assertions that he wanted to
"keep this in the family" were implied promises
that D.K. wouldn't go to the police if Nkongolo confessed
to what he'd done. The court found that these repeated
implied promises were coercive and that the totality of the
circumstances overbore Nkongolo's will, rendering his
statements involuntary. So, the court granted Nkongolo's
motion to suppress those statements.
¶11
The prosecution now appeals that ruling.
II.
Jurisdiction and Standards of Review
¶12
We may consider an interlocutory appeal filed by the
prosecution, seeking relief from a trial court's
suppression order. § 16-12-102(2), C.R.S. (2024); C.A.R.
4.1(a); People v. Brown, 2022 CO 11, ¶ 13, 504
P.3d 970, 974.
¶13
Because a suppression ruling presents a mixed question of law
and fact, we "defer to the trial court's findings of
historical fact, if supported by competent evidence in the
record," but "we review the trial court's
conclusions of law de
6
novo." Brown, ¶ 14, 504 P.3d at 975. So
here, we defer to the trial court's factual findings
regarding the circumstances surrounding Nkongolo and
D.K.'s conversation, but we consider anew whether those
circumstances rendered Nkongolo's statements involuntary.
See People v. Matheny, 46 P.3d 453, 461-62 (Colo.
2002); People v. McIntyre, 789 P.2d 1108, 1111
(Colo. 1990).
¶14
"If the defendant makes a prima facie showing of
involuntariness at a suppression hearing, the prosecution
then bears the burden of establishing by a preponderance of
the evidence that he in fact made the statements
voluntarily." People in Int. of Z.T.T., 2017 CO
48, ¶ 11, 394 P.3d 700, 703 (quoting People v.
McIntyre, 2014 CO 39, ¶ 15, 325 P.3d 583, 587). And
although we must consider the totality of the circumstances,
People v. Davis, 187 P.3d 562, 563-64 (Colo. 2008),
on appeal "we look solely to the record created at the
suppression hearing" to determine whether the trial
court properly suppressed the evidence, People v.
Thompson, 2021 CO 15, ¶ 16, 500 P.3d 1075, 1078.
III.
Analysis
¶15
"Under the due process clauses of the United States and
Colorado constitutions, a defendant's statements must be
voluntary to be admissible as evidence." People v.
Ramadon, 2013 CO 68, ¶ 18, 314 P.3d 836, 841;
see also U.S. Const. amends. V, XIV; Colo. Const.
art. II, § 25. These constitutional requirements exist
even if the defendant was not in custody when the statements
were made.
7
People v. Medina, 25 P.3d 1216, 1225 (Colo. 2001);
see also Colorado v. Connelly, 479 U.S. 157, 163-67
(1986). This is to say nothing more remarkable than
determining whether the safeguards established in Miranda
v. Arizona, 384 U.S. 436 (1966), apply and were followed
and determining whether a statement was voluntary are
different analyses, even though the relevant legal
considerations are intertwined. As a result, even though a
statement by phone doesn't constitute custodial
interrogation, People v. Platt, 81 P.3d 1060, 1066
(2004), the trial court was still obligated to address the
voluntariness of Nkongolo's statements, see id.
("Statements and confessions received as a result of a
non-custodial interrogation are admissible, if they are
voluntary.").
¶16
"To be voluntary, a statement must be the product of an
essentially free and unconstrained choice by its maker."
Ramadon, ¶ 19, 314 P.3d at 842. A
defendant's statements are therefore involuntary if an
officer's coercive conduct played a significant role in
overbearing the defendant's will and inducing the
statements. Z.T.T., ¶ 12, 394 P.3d at 703.
¶17
Thus, an involuntary statement has three attributes. First,
we must identify some form of governmental coercion.
Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); see
also Connelly, 479 U.S. at 166 ("The most
outrageous behavior by a private party seeking to secure
evidence against a defendant does not make that evidence
inadmissible under the Due Process Clause."). State
action may seem obvious
8
when the allegedly coercive actors are uniformed police
officers but less so when law enforcement uses a private
party to interrogate a suspect.
¶18
Second, we consider whether the state actor's conduct was
actually coercive; meaning, sufficiently forceful to
implicate constitutional limits on governmental
interrogation. Connelly, 479 U.S. at 167. Coercive
conduct may include physical abuse or threats as well as more
"subtle forms of psychological coercion."
Effland v. People, 240 P.3d 868, 877 (Colo. 2010).
But context is king. So, "we examine 'both the
defendant's ability to resist coercive pressures and the
nature of the police conduct.'" Z.T.T.,
¶ 13, 394 P.3d at 703 (quoting Ramadon, ¶
20, 314 P.3d at 842). The following non-exhaustive list of
factors helps guide this determination:
1. whether the defendant was in custody;
2. whether the defendant was free to leave;
3. whether the defendant was aware of the situation;
4. whether the police read Miranda rights to the
defendant;
5. whether the defendant understood and waived
Miranda rights;
6. whether the defendant had an opportunity to confer with
counsel or anyone else prior to or during the interrogation;
7. whether the statement was made during the interrogation or
volunteered later;
8. whether the police threatened [the] defendant or promised
anything directly or impliedly;
9
9. the method [or style] of the interrogation;
10. the defendant's mental and physical condition just
prior to the interrogation;
11. the length of the interrogation;
12. the location of the interrogation; and
13. the physical conditions of the location where the
interrogation occurred.
Id. (alterations in original) (quoting
McIntyre, ¶ 17, 325 P.3d at 587).
¶19
Third, even if the conduct was coercive, a final step
remains. Id. at ¶ 12, 394 P.3d at 703. For us
to conclude that a defendant's statement was involuntary,
we must determine that coercive police conduct played a
"significant role" in inducing it. Id.
¶20
With these legal concepts in mind, we return to the case at
hand.
A.
Government Actor
¶21
Because D.K. was not a police officer, we must first
determine whether he was acting as an agent of the government
in eliciting Nkongolo's statements. We begin by
considering "(1) whether the government
'encourage[d], initiate[d], or instigate[d] the private
action,' and (2) whether 'the party performing the
[interrogation] intended to assist law enforcement efforts or
to further his own ends.'" People v.
Pilkington, 156 P.3d 477, 479 (Colo. 2007) (first three
alterations in original) (quoting United States v.
Smythe, 84 F.3d 1240, 1242-43 (10th Cir. 1996)).
10
¶22
Here, D.K. contacted Nkongolo at law enforcement's
behest, and an officer told D.K. which questions to ask. The
trial court found that D.K. was an agent of the police, and
neither party disputes this finding.
B.
Coercive Conduct
¶23
Next, we must consider whether D.K.'s conduct was
coercive. We examine coercion from the suspect's
perspective. Illinois v. Perkins, 496 U.S. 292, 296
(1990).
¶24
We recognize that the "police-dominated atmosphere"
of a prototypical custodial interrogation generates
"inherently compelling pressures which work to undermine
the individual's will to resist and to compel him to
speak where he would not otherwise do so freely."
Id. (quoting Miranda, 384 U.S. at 445,
467); accord Matheny, 46 P.3d at 462-63. But these
"inherently compelling pressures" are missing when
an individual speaks to a friend; that is, when an individual
doesn't know he is speaking with the police.
Perkins, 496 U.S. at 296-97 (quoting
Miranda, 384 U.S. at 467). Therefore, it isn't
inherently coercive for police officers to use an agent, like
D.K., to try to get a suspect to speak. See id. at
297 (explaining that "mere strategic deception by taking
advantage of a suspect's misplaced trust" in someone
the suspect doesn't know is an agent of the police
doesn't offend due process). Accordingly, we must
consider the totality of the circumstances and the remaining
factors to determine whether Nkongolo's statements were
voluntary.
11
¶25
First, Nkongolo wasn't in custody during the November 15
conversation. Although D.K.'s questions constituted an
interrogation, see Rhode Island v. Innis, 446 U.S.
291, 301 (1980), Nkongolo wasn't subjected to a
custodial interrogation. Thus, he wasn't
entitled to a Miranda warning. See People v.
Wakefield, 2018 COA 37, ¶ 47, 428 P.3d 639, 649.
These circumstances therefore weigh against a finding of
coercion. See Effland, 240 P.3d at 874.
¶26
Second, Nkongolo arguably had the opportunity to speak with
an attorney before this conversation but chose not to. He
told D.K. that he had received a letter from ACHS with a
number he could call, but he wanted to speak with D.K. first.
As the trial court observed, however, it's unclear that
Nkongolo knew he could speak with an attorney or even that he
might want to. So, this factor doesn't tilt the scales
one way or the other.
¶27
Third, we note that the nature of the conversation-text
messaging-weighs strongly against coercion. See People v.
Munoz-Diaz, 2023 COA 105, ¶ 15, 543 P.3d 402, 406.
Nkongolo could choose the timing, his location, and the
duration of the conversation. He could also choose to respond
or to stop responding at any time. And nothing about these
messages indicates that Nkongolo was mentally or physically
impaired.
¶28
Lastly, D.K. told Nkongolo at the beginning of the
conversation that he wanted to talk about what had happened
with A.K., so Nkongolo was aware of
12
the situation. D.K. also said A.K. had told him what
happened, but he wanted to hear it from Nkongolo so they
could "see what we can do." D.K. repeatedly said
that he wanted Nkongolo to be truthful and that he wanted
"to keep this in the family." After Nkongolo failed
to answer D.K.'s questions about whether he had kissed
A.K.'s breasts, D.K. ended the conversation by saying,
"I wanted this to be dealt with in the family but
apparently you don't want to so I'm going to do what
[my wife] wants us to do."
¶29
The trial court found that D.K.'s statements about
wanting "to keep this in the family" were implied
promises that if Nkongolo told D.K. the truth, D.K.
wouldn't go to the police. Because the record supports
this finding, we defer to it. We disagree, however, with the
trial court's legal conclusion that these circumstances
were coercive.
¶30
We generally don't consider it coercive for law
enforcement officers to tell a suspect the factual
allegations against him. People v. Cerda, 2024 CO
49, ¶ ¶ 42-43, 559 P.3d 206, 215. Nor do we
generally consider it coercive for law enforcement officers
to tell a suspect the possible consequences that may result
from his decision to speak or to remain silent. People v.
Smiley, 2023 CO 36, ¶ 39, 530 P.3d 639, 649;
see also 2 Wayne R. LaFave et al., Criminal
Procedure § 6.2(c) n.100, Westlaw (4th ed. database
updated Nov. 2024) ("[A] mere threat to take action
which would be lawful and necessary absent cooperation is not
objectionable."); United States v. Perez,
13
127 F.4th 146, 173 (10th Cir. 2025) (explaining that courts
generally don't consider it coercive to accurately
explain the reality of a suspect's situation and the
consequences of cooperation versus silence). And "[t]he
practice of encouraging a suspect to be honest is
well-established . . . as noncoercive conduct."
United States v. Pena, 115 F.4th 1254, 1263 (10th
Cir. 2024); see also People v. Miranda-Olivas, 41
P.3d 658, 662-63 (Colo. 2001).
¶31
Therefore, considering the totality of the circumstances
surrounding the November 15 conversation, we conclude that
the prosecution failed to prove that D.K.'s conduct was
coercive. See Z.T.T., ¶¶ 14-15, 394 P.3d
at 703-04; Munoz-Diaz, ¶¶ 15-21, 543 P.3d
at 406-07.
C.
Significant Factor
¶32
Finally, even if D.K.'s conduct had been coercive, we
would still need to determine whether this conduct played a
significant role in inducing Nkongolo's statements. The
trial court concluded that D.K.'s implied promises not to
go to the police, combined with "the fact that it's
unknown whether . . . Nkongolo[] was aware of the
situation" because the contents of the letter from ACHS
weren't in the record, were circumstances that played a
significant role in overbearing Nkongolo's will.
Accordingly, the court concluded Nkongolo's statements
were involuntary. We disagree.
14
¶33
An officer's repeated exhortations for a suspect to be
honest don't necessarily overbear a defendant's free
will. See Pena, 115 F.4th at 1264. Similarly, an
officer may generally "make a truthful statement
regarding a possible punishment without it overbearing a
defendant's will," Dowell v. Lincoln Cnty.,
762 F.3d 770, 776 (8th Cir. 2014), as long as the officer
isn't intentionally exploiting a suspect's known
weaknesses with such statements, see Ramadon,
¶¶ 24-28, 314 P.3d at 844-45.
¶34
Here, there is no evidence that Nkongolo was particularly
vulnerable to D.K.'s implied promises that he would keep
the situation in the family and not involve the police if
Nkongolo told him the truth or that these promises were an
attempt to exploit some weakness. And Nkongolo never changed
his story, maintaining throughout the conversation that he
had just been joking around. So, it's clear that neither
D.K.'s implied promises, nor the circumstances as a
whole, overbore Nkongolo's will or induced him to speak.
Cf. People v. Springsted, 2016 COA 188, ¶¶
34-49, 410 P.3d 702, 712-15 (concluding that the coercive
environment created by the officers played a significant role
in overbearing the defendant's will, as evidenced, in
part, by the fact that the defendant changed his story as the
coercive tactics mounted).
¶35
We therefore conclude that Nkongolo's statements were
voluntary.
15
IV.
Conclusion
¶36
We reverse the portion of the trial court's order
suppressing the November 15 statements, and we remand the
case to the trial court for further proceedings.
---------
Notes:
[1] Nkongolo and D.K. are originally from
the Democratic Republic of the Congo and primarily speak
Tshiluba. In text messages, however, they typically use
French. The investigating officer had the transcripts of the
three relevant text exchanges translated from French to
English, which the court admitted into evidence at the
suppression hearing. We rely on that translation in this
opinion.