United States v. Nahkai

139 F.4th 859

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 3, 2025
• Docket: 24-4058
• Status: Published

Opinion

Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 3, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. No. 24-4058

ANDY NAHKAI,

Defendant - Appellee. _________________________________

Appeal from the United States District Court for the District of Utah (D.C. No. 4:22-CR-00030-DN-PK-1) _________________________________

Joseph Palmer, Assistant United States Attorney (and Trina A. Higgins, United States Attorney, with him on the briefs), Salt Lake City, Utah, for Plaintiff - Appellant.

Jessica Stengel, Assistant Federal Public Defender, (and Scott Keith Wilson, Federal Public Defender, with her on the brief), Salt Lake City, Utah, for Defendant - Appellee. _________________________________

Before HARTZ, KELLY, and ROSSMAN, Circuit Judges. _________________________________

KELLY, Circuit Judge. _________________________________

Defendant-Appellee, Andy Nahkai, was charged with two counts of abusive

sexual contact with a child while within Indian country, 18 U.S.C. § 2244(c) & 1153,

and one count of abusive sexual contact with a child age 12-16 while within Indian

country, 18 U.S.C. § 2244(a)(3) & 1153. I Aplt. App. 13–14. The district court Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 2

granted Mr. Nahkai’s motion to suppress statements that he made to law enforcement

and the government now appeals. Id. at 126–27. On appeal, the government argues

that when officers interviewed Mr. Nahkai in an unlocked police vehicle parked

outside his home he was not “in custody” for purposes of Miranda v. Arizona, 384

U.S. 436 (1966), and therefore his statements were voluntary. Aplt. Br. 1, 11–12.

We agree. Our jurisdiction arises under 18 U.S.C. § 3731, and we reverse.

Background

On February 10, 2022, FBI Agent Jarrod Girod and Navajo Criminal

Investigator Reeder Nez 1 went to Mr. Nahkai’s home to investigate allegations of

sexual abuse made by Mr. Nahkai’s wife’s niece (“the minor”). I Aplt. App. 89.

Agent Girod drove in an unmarked Ford F-150 truck, and Investigator Nez drove in

an unmarked SUV. Id. at 90. Investigator Nez wore a dark shirt with a law

enforcement star and had a visible weapon on his right side. Id. at 92. Agent Girod

wore civilian clothing –– hiking pants and a button up shirt –– and carried a

concealed firearm. Id. Both officers’ weapons remained holstered at all times

relevant to this appeal. Id. at 94.

When the officers arrived at Mr. Nahkai’s property, Mr. Nahkai’s wife, Martha

Nahkai, was standing at the front gate. Id. at 91. Mrs. Nahkai spoke with

Investigator Nez before allowing the officers to enter the property. Id. at 92. Agent

Girod drove toward the house and parked his truck facing the home about 30 to 40

1 Mr. Nahkai is a member of the Navajo nation. I Aplt. App. 90. 2 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 3

feet from the front door. Id. Mr. Nahkai came outside, and Investigator Nez asked in

Navajo, “can we talk with you a while?” Id. at 93. Mrs. Nahkai asked whether the

officers wanted to speak with “just him” (referring to Mr. Nahkai), to which

Investigator Nez replied, “we will get back with you.” Id.

Investigator Nez introduced himself and identified Agent Girod as a “friend

from Monticello.” Id. Investigator Nez showed his badge and explained that they

were there to “ask about some things[.]” Id. at 93–94. Agent Girod took over in

English asking, “Why don’t we, why don’t we jump in the ride? Why don’t you sit

— do you want to sit in my passenger seat?” Id. at 94. Mr. Nahkai did not audibly

reply, but he sat in the passenger seat of Agent Girod’s truck. Id. Agent Girod sat in

the driver’s seat and Investigator Nez sat in the back seat directly behind Agent

Girod. Id. Mrs. Nahkai was inside the home. Id. The interior of the truck had two

indicia of law enforcement: a radio control with a microphone (which Agent Girod

silenced during the questioning), and a rifle rack in the back. Id. at 94–95.

Before Mr. Nahkai got into the truck, neither officer asked him if he had

weapons, handcuffed him, or touched him in any way. Id. at 94. Mr. Nahkai was not

told that he was or was not under arrest. Id. The truck doors remained unlocked. Id.

at 95. Although the officers did not tell Mr. Nahkai that the doors were unlocked,

Agent Girod testified that one “could look down and see” that they were. Id. Neither

officer administered Miranda warnings, and Mr. Nahkai was never told that he could

terminate the interview or decline to answer questions. Id. The officers also never

told him that he was required to stay and answer questions. Id.

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Inside the truck, Agent Girod identified himself as a member of the FBI and

questioned Mr. Nahkai for 41 minutes. Id. According to Agent Girod, the exchange

was “conversational,” but eventually became “confrontational,” though nobody

raised their voice. Id. at 96. A few minutes in, Agent Girod asked why the minor no

longer lived in Mr. Nahkai’s home. Gov. Ex. 1, at 09:18–09:24. Mr. Nahkai

explained that Social Services removed the minor because she reported Mrs. Nahkai

for physical abuse and Mr. Nahkai for sexual abuse. Id. at 09:25–10:40.

A few minutes later, Agent Girod asked Mr. Nahkai about “massages” that the

minor gave him. Id. at 14:33–14:37. Mr. Nahkai explained that he asked the minor

to massage his leg after sustaining a hip injury from being bucked off a horse. Id. at

14:38–14:56. Without intervention from the officers, Mr. Nahkai continued that the

massage “got out of hand” when the minor “slipped” her hand and he told her, “No.

Don’t do it.” Id. at 14:57–15:25. According to Mr. Nahkai, this happened during a

camping trip when the minor was seven years old. Id. at 19:15–21:00. Mr. Nahkai

said that it only happened once. Id. at 15:39–16:03. Agent Girod responded:

I don’t believe you. I think more happened than what you’re saying. . . . You can’t convince me that more than that didn’t happen. . . . I’m not saying you’re a bad guy, you’re not a rapist, you didn’t rape her. . . . But I think some of the massages kind of went a little farther than you’re telling me about. . . . Tell me about her touching your penis and stroking it.

Id. at 17:00–17:45. When Mr. Nahkai continued to deny the allegations, Agent Girod

made similar assertions, stating that he knew the minor was telling the truth, that he

knew Mr. Nahkai didn’t rape the minor but that he thought things got out of hand,

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and that he knew it happened more than once. Id. at 17:57–20:00. Eventually, Agent

Girod stated:

I don’t think you’re a bad guy, but I do think things got a little out of hand, maybe went a little too far. And I want to help you out here, but the thing is, like, this is your chance to come clean. This is your chance to tell the truth about what happened. . . . You need to tell me about the other times that it happened. . . . Tell me about the times it happened here at the house.

Id. at 23:45–24:20. Mr. Nahkai continued to deny the allegations, but eventually

stated that it happened again inside the home when the minor was about ten years

old. Id. at 24:20–28:30.

Thus, Mr. Nahkai admitted that the minor touched his penis on two occasions.

I Aplt. App. 97, 99. But he maintained throughout the questioning –– despite Agent

Girod confronting him with his beliefs and the victim’s accusations –– that the minor

was responsible for the contact by either slipping her hand or initiating the

encounters. Id. at 97–99. At the end of the questioning Agent Girod stated, “Alright,

well uh, I think we’re gonna talk with Martha here for just a second now if that’s

alright. You’re good to go inside.” Gov. Ex. 1, at 45:00–45:10. Mr. Nahkai exited

the truck and went back inside the home. I Aplt. App. 99.

In pretrial proceedings, Mr. Nahkai moved to suppress the statements he made

on the grounds that they were made during a custodial interrogation without Miranda

warnings and were not voluntary under the Fifth Amendment. Id. at 16–21. The

district court held an evidentiary hearing at which the officers testified. II Aplt. App.

132–213. Pursuant to the district court’s instruction, the parties drafted competing

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proposed orders. Id. at 189. The government’s proposed order concluded that the

statements should not be suppressed because the interrogation was not custodial, and

the statements were voluntarily obtained under the Fifth Amendment. I Aplt. App.

29–40. Mr. Nahkai’s proposed order concluded the opposite. Id. at 50–60.

The district court suppressed the statements. Id. at 88–126. The court

analyzed “non-exhaustive factors” under “the totality of the circumstances” in

concluding that the interrogation was custodial. Id. at 101–02. Three factors were

dispositive: (1) the officers’ failure to notify Mr. Nahkai that he was free to leave, (2)

the accusatory nature of the questioning, and (3) the police domination of the

encounter. Id. at 102–22. The district court recognized that some facts favored the

government but found that they did not outweigh the facts favoring suppression. Id.

at 122–24. On appeal, the government argues that the district court gave “inordinate

weight to the fact that agents did not explicitly advise [Mr.] Nahkai that he could

refuse to speak with them” in deciding the issue of custody. Aplt. Br. at 12.

Discussion

On review of an order granting a motion to suppress, the district court’s factual

findings are accepted “unless they are clearly erroneous, and we view the evidence in

the light most favorable to the district court’s determination.” United States v.

Burleson, 657 F.3d 1040, 1044 (10th Cir. 2011) (quotations omitted). On the other

hand, we review the district court’s legal conclusions de novo. Id. The government

does not challenge any of the historical facts found by the district court. Aplt. Reply

Br. at 17. The only question before us is whether those facts support the conclusion

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that Mr. Nahkai was in custody while being questioned. Id. at 17–18. The

determination of whether an interrogation was “custodial” is a legal conclusion which

we review de novo. United States v. Lamy, 521 F.3d 1257, 1261 (10th Cir. 2008).

It is well-established that law enforcement need not administer Miranda

warnings every time a suspect is questioned. United States v. Rogers, 391 F.3d 1165,

1169 (10th Cir. 2004). Rather, Miranda’s protections “only apply when an individual

is subject to ‘custodial interrogation.’” Id. (quoting Miranda, 384 U.S. at 439). A

suspect is deemed to be in custody when their “freedom of action is curtailed to a

degree associated with formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 440

(1984) (quotations omitted). The custody inquiry is objective and asks “whether ‘a

reasonable person in the suspect’s position would have understood the situation . . .

as the functional equivalent of formal arrest.’” United States v. Chee, 514 F.3d 1106,

1112 (10th Cir. 2008) (quoting Berkemer, 468 U.S. at 442).

Under Tenth Circuit precedent, “several non-exhaustive factors” are helpful in

assessing whether an interrogation is custodial. United States v. Jones, 523 F.3d

1235, 1240 (10th Cir. 2008). These include: (1) whether officers advise the suspect

that he or she is not required to answer questions and/or that he or she may terminate

the interview, (2) the nature of the questioning, and (3) whether police dominated the

atmosphere of the encounter. Id. Still, we must not lose the forest for the trees but

“look to the totality of the circumstances and consider the police-citizen encounter as

a whole[.]” Id. Applying these principles, the questioning of Mr. Nahkai did not

amount to a custodial interrogation.

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I. Lack of Police Advisement

The officers never advised Mr. Nahkai that he could refuse to speak with them.

I Aplt. App. 95. The district court properly concluded that the lack of police

advisement weighs in favor of finding that Mr. Nahkai was in custody. Id. at 102–09.

The government conceded as much at oral argument. Oral Arg. at 04:33–04:44.

True, “the lack of a police advisement that the suspect is at liberty to decline to

answer questions or free to leave is a significant indication of a custodial detention.”

United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993). But we have been clear

that the police advisement factor is not dispositive. It is “only one factor to

consider.” United States v. Guillen, 995 F.3d 1095, 1109 (10th Cir. 2021). If this

factor were dispositive in every case, it would displace other factors which we have

consistently deemed relevant to the custody analysis. Thus, although the lack of

police advisement here favors a finding of custody, our focus remains on the totality

of the circumstances because we cannot “pick[] some facts and ignor[e] others.”

Jones, 523 F.3d at 1240.

II. Nature of the Questioning

We next examine the nature of the questioning. “[P]rolonged accusatory

questioning is likely to create a coercive environment from which an individual

would not feel free to leave.” Griffin, 7 F.3d at 1518. In assessing this factor, we

consider facts like the length of the questioning, the substance of the questions and

whether they were accusatory, and whether the tone was threatening. See Guillen,

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995 F.3d at 1110. These considerations inform whether the questioning rose “to the

level of coercion.” Id.

The district court noted that the questioning of Mr. Nahkai was short, and we

agree. I Aplt. App. 112. Mr. Nahkai was questioned for approximately 41 minutes

which is not so long as to render it coercive. E.g., Jones, 523 F.3d at 1238, 1241

(finding no custody where interrogation lasted for 45 minutes to an hour).

With respect to the substance of the questions, this court has recognized that a

reasonable person would likely not believe they are effectively under arrest when

officers focus their questioning on someone other than the suspect. Jones, 523 F.3d

at 1241–42. Here, the officers focused only on Mr. Nahkai’s involvement in the

alleged sexual abuse. Nevertheless, the questioning was typical in terms of what one

would expect during police questioning and was not so coercive as to make a

reasonable person understand that they were effectively under arrest.

Indeed, “[a]ny interview of one suspected of a crime by a police officer will

have coercive aspects to it, simply by virtue of the fact that the police officer is part

of a law enforcement system which may ultimately cause the suspect to be charged

with a crime.” California v. Beheler, 463 U.S. 1121, 1124 (1983) (quotations

omitted). Agent Girod’s insistence that Mr. Nahkai was not telling the truth, and his

statement that he knew there was more to the story than Mr. Nahkai was letting on do

not render his tactics coercive. Before arriving to Mr. Nahkai’s house, Agent Girod

reviewed the minor’s forensic interview, and knew that the minor was removed from

the Nahkai residence due to sexual abuse allegations. I Aplt. App. 89. It is no

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surprise, then, that Agent Girod continued to ask Mr. Nahkai about these matters. In

this regard, “[t]here is no indication that [Agent Girod’s] questioning was any more

coercive than what would be expected in any questioning by a police officer of an

individual suspected of a crime.” United States v. Simmonds, 641 F. App’x 99, 103

(2d Cir. 2016) (noting that the form of questioning did not “necessarily support a

conclusion that the interrogation was custodial” where the defendant was accused of

lying, confronted with incriminating evidence, and advised that it was in his best

interest to be honest). When confronted with alleged wrongdoing, regardless of

innocence, most suspects are likely to disagree and that alone does not render further

questioning coercive. Although Agent Girod testified that the conversation became

confrontational, it never became “unusually confrontational.” Lamy, 521 F.3d at

1263. The extent to which the conversation may have become confrontational was

not enough to have caused a reasonable person to understand the situation as the

“‘functional equivalent of formal arrest.’” Chee, 514 F.3d at 1112 (quoting

Berkemer, 468 U.S. at 442).

In concluding otherwise, the district court held that the questioning was similar

to that in United States v. Guillen. I Aplt. App. 110–13. That case is distinguishable.

In Guillen, law enforcement went to the suspect’s home after his ex-girlfriend found

an improvised explosive device under her bed. 995 F.3d at 1101. Initially, two

officers questioned the suspect for 50 minutes while other officers searched the

suspect’s bedroom. Id. at 1101–02. The suspect repeatedly denied involvement but

confessed after the searching officers “laid out the evidence discovered during the

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search, told [the suspect] it pointed to him, and asked if he created the improvised

explosive device.” Id. at 1102. We recognized that the situation escalated when the

officers pressed the suspect despite repeated denials “and then confronted him with

the mounting information and evidence collected during the search.” Id. at 1110. It

was only then that “a reasonable person in [the suspect’s] position would not have

felt free to leave or otherwise end the interview.” Id.

Mr. Nahkai was never confronted with “mounting” physical evidence that

“pointed to him.” Id. at 1102, 1110. Agent Girod pressed Mr. Nahkai despite his

denials, but Guillen required more to render the questioning coercive. The district

court here stated that “[t]he relevant issue is whether the questioning is accusatory

and coercive, not whether the officers used physical evidence during the

questioning.” I Aplt. App. 114. But in Guillen, the precise reason that the officers’

questioning became coercive was that they eventually confronted the suspect with

substantial incriminating evidence. 995 F.3d at 1110. At that point, “an arrest was

likely, and –– after being confronted with that evidence –– a reasonable person in

[the suspect’s] shoes . . . would have reasonably understood his situation as the

functional equivalent of formal arrest.” Id. at 1111. Thus, the nature of the

questioning here is different from that in Guillen.

Finally, Agent Girod’s questioning “even when directed at soliciting a

confession . . . remained calm and conversational.” United States v. Wagner, 951

F.3d 1232, 1251 (10th Cir. 2020) (quotations omitted). At no point did anyone raise

their voice. I Aplt. App. 96; see Guillen, 995 F.3d at 1110 (noting that questioning

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was not coercive in part because officers did not speak in a threatening tone).

Indeed, our review of the audio recording satisfies us that Mr. Nahkai was never

threatened or unduly pressured into answering Agent Girod’s questions. In fact, Mr.

Nahkai’s first mention of sexual contact with the minor seemingly occurred on his

own volition. After Agent Girod asked about the massages, Mr. Nahkai explained

that the minor would massage his injured hip and, without intervention, continued

that the minor’s hand “slipped.” Gov. Ex. 1, at 14:33–15:25. Thus, we do not

believe that the nature of the questioning rose to the level of coercion that would

make a reasonable person in Mr. Nahkai’s position understand the situation to be the

“‘functional equivalent of formal arrest.’” Chee, 514 F.3d at 1112 (quoting

III. Police-Dominated Atmosphere

The Miranda Court was primarily concerned with combatting oppressive

forces created by an “incommunicado police-dominated atmosphere.” 384 U.S. at

456. Accordingly, “[w]here police are in full control of the questioning environment,

custody is more easily found.” Griffin, 7 F.3d at 1518–19. Several factors bear on

whether police dominated the encounter, including:

separation of the suspect from family or colleagues who could offer moral support; isolation in nonpublic questioning rooms; threatening presence of several officers; display of a weapon by an officer; physical contact with the subject; and an officer’s use of language or tone of voice in a manner implying that compliance with the request might be compelled.

Id. at 1519. Again, although the factors are helpful, the ultimate inquiry is one

of the totality of the circumstances. Jones, 523 F.3d at 1240.

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We first note that a few of these factors are plainly absent here. First, at

no point did the officers touch Mr. Nahkai. It is significant that Mr. Nahkai

“retained freedom of movement throughout the interview[.]” United States v.

Johnson, 39 F.4th 1047, 1051 (8th Cir. 2022). Mr. Nahkai was never searched,

handcuffed, or physically restrained, the doors remained unlocked, and he

“entered and exited the front seat of the vehicle on his own.” Id.; I Aplt. App.

94–95, 99. Mr. Nahkai’s “voluntary decision to accompany police argues

against police domination.” Lamy, 521 F.3d at 1264; Jones, 523 F.3d at 1242.

It is also notable that Mr. Nahkai sat in the front seat of Agent Girod’s truck –

– not in the back seat behind physical barriers –– which suggests a lack of

arrest. Lamy, 521 F.3d at 1264. And we have already explained that the tone

of the interview remained calm and non-threatening.

The presence of two officers in mostly plain clothing is not considered

coercive. Wagner, 951 F.3d at 1251 (noting that “only two” officers interviewed the

suspect); Jones, 523 F.3d at 1242 (noting the officers’ plain clothes in finding a lack

of police domination). True, Investigator Nez’s firearm was visible, but it remained

holstered and there is no indication that he displayed or brandished it in a threatening

or coercive manner. See Jones, 523 F.3d at 1238 (“At no point did the agents

brandish or unholster their concealed weapons[.]”). That Investigator Nez’s firearm

was visible does not automatically render the encounter custodial, or else nearly

every such encounter will be custodial given that officers investigating serious crimes

will almost always carry firearms. See United States v. Drayton, 536 U.S. 194, 205

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(2002) (noting in the context of Fourth Amendment consent searches that “[t]he

presence of a holstered firearm thus is unlikely to contribute to the coerciveness of

the encounter absent active brandishing of the weapon”).

We recognize that Mr. Nahkai and Mrs. Nahkai were in separate

locations while Mr. Nahkai was questioned. But context matters. Our prior

decisions have placed weight on the isolation factor when officers specifically

deny a request for another person to be present during questioning. E.g.,

United States v. Fred, 322 F. App’x 602, 603–04 (10th Cir. 2009). In Fred, the

suspect asked for his wife to be present during his questioning, but the officers

denied her access to the interview room. Id. at 607. Here, nobody specifically

requested that Mrs. Nahkai be present for the questioning. True, Mrs. Nahkai

asked whether the officers wanted to speak with “just him,” but there is no

indication that the officers would have rebuffed any request for Mrs. Nahkai to

be present during questioning. I Aplt. App. 93; cf. Yarborough v. Alvarado,

541 U.S. 652, 665 (2004) (noting that officers rebuffed the suspect’s parent’s

request to be present during the interview which favored a finding of custody).

Further, though technically separated from Mr. Nahkai, Mrs. Nahkai

“remained nearby” in the house which was only 30 to 40 feet away. Wagner,

951 F.3d at 1251; I Aplt. App. 92, 94.

With respect to the location of the interview, Mr. Nahkai was not

questioned at a station house where there are “inherently coercive pressures[.]”

Howes v. Fields, 565 U.S. 499, 509 (2012). At the same time, Mr. Nahkai was

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not questioned inside his home where “courts are much less likely to find the

circumstances custodial[.]” United States v. Ritchie, 35 F.3d 1477, 1485 (10th

Cir. 1994) (quotations omitted). Still, the questioning occurred on Mr.

Nahkai’s property, in close proximity to his home in an unmarked and

unlocked police vehicle that had no physical restraints. Jones, 523 F.3d at

1242 (“Police need not administer Miranda warnings simply because the

questioning is conducted in a certain place, i.e., a patrol car.” (quotations

omitted)). And Agent Girod’s truck “lacked virtually any official indicia that

might normally intimidate a person placed into a fully equipped police

vehicle” apart from a silenced radio and a rifle rack in the back. Id. at 1243; I

Aplt. App. 94. There is no evidence as to whether the rifle rack was equipped

with firearms. See I Aplt. App. 94. And although the officers could have

asked to interview Mr. Nahkai inside his home, it was also understandable for

them “to be cognizant of [Mr. Nahkai’s] privacy and ask to speak inside [their]

car,” given that the questioning related to a sensitive topic: sexual assault

allegations made by Mrs. Nahkai’s niece. Jones, 523 F.3d at 1242.

In concluding that the encounter was police-dominated, the district court

relied on United States v. Fred. I Aplt. App. 116–22. In that case, several

factors indicated that the atmosphere was police-dominated. Namely: (1)

officers’ badges and weapons were visible, (2) the suspect’s wife was denied

the ability to be present, (3) Social Services had already notified the suspect of

the accusations against him such that he understood that the conversation

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could be about those accusations. Fred, 322 F. App’x at 607. But in addition

to those facts, the suspect was questioned for over an hour and a half in an FBI

room where he had to pass through a metal detector. Id. The suspect’s view

also did not allow him to see whether the door to the questioning room was

closed. Id. And the suspect was specifically told that he could leave “when he

was done.” Id. Many of these additional factors suggesting a police-

dominated atmosphere are not present here. Rather, this case is similar to the

non-custodial interrogation in United States v. Johnson, where the suspect was

questioned in an unlocked police vehicle outside his home, was not touched,

entered and exited the vehicle by himself, acquiesced to the interviews, was

not subjected to strong-arm tactics, and was not arrested when the interview

ended. 39 F.4th at 1051–52.

IV. The Dissent

The dissent explains that we apply significant deference to not only the district

court’s factual findings but also to the prevailing party, thereby constraining our

appellate review. All agree that the district court’s factual findings are accepted, and

the evidence is viewed “in the light most favorable to the district court’s

determination.” Burleson, 657 F.3d at 1044 (quotations omitted). The ultimate

question of whether an interrogation was custodial is a legal conclusion which we

review de novo. Id. Therefore, we determine whether the historical facts as found by

the district court, unchallenged by either party, support the legal conclusion that the

interrogation was custodial. On this legal question, we are not a rubber stamp for the

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district court’s conclusion. See United States v. Erving L., 147 F.3d 1240, 1246

(10th Cir. 1998) (noting that the overall custody analysis is a mixed question of fact

and law reviewed de novo, “with proper deference to the district court’s findings of

historical fact”).

The premise of the dissent seems to be that law enforcement questioning is per

se coercive. The dissent views this case as analogous to Guillen, but merely

informing a suspect of the victim’s allegations does not result in a coercive

environment suggesting that a suspect must answer the questions and is not free to

leave. After all, from start to finish Mr. Nahkai maintained his story that the minor

initiated the encounters and that she was to blame because her hand “slipped” onto

his penis. Nor is there any evidence that the presence or absence of Mrs. Nahkai had

any effect on Mr. Nahkai. The officers told Mrs. Nahkai they would “get back with

[her]” after speaking with Mr. Nahkai. I Aplt. App. 93. When the interview ended,

the officers told Mr. Nahkai he was “good to go inside” and that they were “gonna

talk with Martha.” Gov. Ex. 1, at 45:00–45:10. Moreover, we have held that

Miranda warnings are not required merely because the questioning occurs in a law

enforcement vehicle. Jones, 523 F.3d at 1242.

The dissent also does not address several facts which weigh against a finding

of custody including the fact that (1) the vehicle remained unlocked, (2) one could

look down and see that the vehicle was unlocked, (3) Mr. Nahkai was never searched,

handcuffed, or touched, (4) Mr. Nahkai was the first to mention sexual abuse and

(without any officer intervention) that the massages “got out of hand” when the

17 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 18

minor’s hand “slipped,” and (5) Mr. Nahkai sat in the passenger seat of the vehicle

without any physical restraints.

In sum, based on the totality of the circumstances and the underlying historical

facts, Mr. Nahkai was not in custody and Miranda warnings were not required. We

conclude that Mr. Nahkai’s statements were not made during a custodial

interrogation. Although Mr. Nahkai was not advised that he was free to leave, a

reasonable person in his position would not have understood the situation as the

“‘functional equivalent of formal arrest.’” Chee, 514 F.3d at 1112 (quoting

Berkemer, 468 U.S. at 442). The district court’s order granting Mr. Nahkai’s motion

to suppress is therefore

REVERSED, and the case is REMANDED for further proceedings.

18 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 19

United States v. Nahkai, No. 24-4058

ROSSMAN, J., dissenting

The Supreme Court has long recognized “in-custody interrogation of

persons suspected or accused of crime contains inherently compelling

pressures which work . . . to compel him to speak where he would not

otherwise do so freely.” Miranda v. Arizona, 384 U.S. 436, 467 (1966).

Consistent with the Fifth Amendment right against self-incrimination,

Miranda warnings “guard against this danger.” United States v. Guillen,

995 F.3d 1095, 1108 (10th Cir. 2021). “Without these warnings, custodial

confessions are . . . generally inadmissible.” Id. at 1109. Because it targets

pressures that are most prominent in the setting of custody, “Miranda

applies only to ‘custodial interrogation[s].’” United States v. Jones, 523 F.3d

1235, 1239 (10th Cir. 2008) (quoting Miranda, 384 U.S. at 444).

Pursuant to Miranda, Mr. Nahkai moved to suppress statements he

made during an interrogation by law enforcement. The district court

granted the motion. I would affirm the district court’s well-reasoned order.

Because the majority concludes otherwise, I respectfully dissent.

I

Nobody disputes Mr. Nahkai was interrogated without receiving

Miranda warnings. The “question before us,” as the majority correctly

explains, “is whether [the] facts support the conclusion that Mr. Nahkai was

1 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 20

in custody while being questioned.” Op. at 6–7. To determine whether

someone was in “custody” when interrogated, we consider, based on the

totality of the circumstances, whether “a reasonable person in the suspect’s

position would have understood the situation as the functional equivalent

of formal arrest.” Jones, 523 F.3d at 1239 (quoting United States v. Chee,

514 F.3d 1106, 1112 (10th Cir. 2008)); see also California v. Beheler, 463

U.S. 1121, 1125 (1983) (“[T]he ultimate inquiry is simply whether there is

a ‘formal arrest or restraint on freedom of movement’ of the degree

associated with a formal arrest.” (quoting Oregon v. Mathiason, 429 U.S.

492, 495 (1977)). Three factors guide our “fact-intensive inquiry”:

(1) whether “the suspect is made aware that he or she is free to refrain

from answering questions or to end the interview at will”;

(2) “the nature of the questioning”; and

(3) “whether the environment was ‘police dominated.’”

Chee, 514 F.3d at 1112–13 (quoting United States v. Griffin, 7 F.3d 1512,

1518 (10th Cir. 1993)).

Before turning to the analysis, I want to emphasize our standard of

review—which the majority acknowledges and the government does not

contest. When a district court grants a motion to suppress, an appellate

court “accepts the district court’s factual findings unless clearly erroneous

and views the evidence in the light most favorable to the prevailing party.”

2 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 21

Jones, 523 F.3d at 1239 (quoting United States v. Hudson, 210 F.3d 1184,

1190 (10th Cir. 2000)); see also Griffin, 7 F.3d at 1514 (explaining, even

when district court does not make factual findings in ruling on a motion to

suppress, “we look to the evidence supporting [the prevailing party’s] case

and give to this evidence the benefit of every reasonable inference”). The

government has not argued any of the district court’s factual findings are

clearly erroneous, so we must accept them, even if we would have weighed

the evidence differently had we been the trier of fact. See Jones, 523 F.3d

at 1239. And Mr. Nahkai won his suppression motion, so we view the

evidence in the light most favorable to him. See id. These principles

establish significant deference—to the district court’s factual findings and

to the prevailing party—which constrains our appellate review of the

district court’s suppression order in meaningful ways. We then consider de

novo “[t]he ultimate question of whether Miranda applies.” Id.

II

I would affirm the district court’s conclusion that Mr. Nahkai was in

custody when Agent Girod and Investigator Nez interrogated him. As to the

first factor, all agree it supports custody. We have repeatedly stated “the

lack of a police advisement that the suspect is at liberty to decline to answer

questions or free to leave is a significant indication of a custodial detention.”

Griffin, 7 F.3d at 1518; Guillen, 995 F.3d at 1109 (same). The record shows

3 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 22

the officers never told Mr. Nahkai he could decline questioning or end the

interview. See Op. at 8. Unlike the majority, however, I also conclude the

second and third factors show Mr. Nahkai underwent a custodial

interrogation. Any “totality of the circumstances” inquiry confirms as much.

See Jones, 523 F.3d at 1240 (explaining the factors are “non-exhaustive”

and are not “hard line rules”).

A

I begin with the nature of the questioning. “[P]rolonged accusatory

questioning is likely to create a coercive environment.” Griffin, 7 F.3d at

1518. The majority does “not believe that the nature of the questioning rose

to the level of coercion that would make a reasonable person in Mr. Nahkai’s

position understand the situation to be the ‘functional equivalent of formal

arrest.’” Op. at 12 (quoting Chee, 514 F.3d at 1112). I respectfully disagree.

First, as the district court correctly observed, “the questioning [of Mr.

Nahkai] was . . . similar to the questioning in United States v. Guillen[,]

where the Tenth Circuit held the questioning weighed in favor [of] finding

custody.” RI.110; see Guillen, 995 F.3d at 1110.

In Guillen, police officers “questioned [a suspect] . . . for about 50

minutes, during which time he repeatedly denied any involvement with

making [a] pressure cooker bomb.” Id. at 1102. The officers “then laid out

4 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 23

the evidence discovered” during their investigation, “told [the suspect] it

pointed to him, and asked if he created the . . . explosive device.” Id. We

held the suspect was in custody at this point. See id. at 1111. In so holding,

we emphasized the officers “pressed [the suspect] despite his repeated

denials of involvement and then confronted him with the mounting

information and evidence collected during the search.” Id. at 1110.

“Considering the evidence the agents had discovered, an arrest was likely,”

we reasoned, “and—after being confronted with that evidence—a

reasonable person in [the suspect’s] shoes would have recognized as much.”

Id. at 1111; see also id. (“It is difficult to ignore the effect that [the officers’]

accusatory questioning had on the nature of the interrogation.”). Given the

totality of the circumstances, the interrogation in Guillen was custodial

even though no officers “spoke in a threatening tone” to the suspect. Id. at

1110.

The similarities between Guillen and this case are readily apparent.

Here, like in Guillen, the officers questioned Mr. Nahkai for just over 40

minutes. See id. at 1102. And Mr. Nahkai, too, “repeatedly denied any”

wrongdoing. Id. During the interrogation, Mr. Nahkai told the officers:

• The alleged victim “all of [a] sudden just slipped. And I said no.

Don’t do it.”;

• “[S]he just touch[ed] it . . . . I said . . . don’t. That’s enough.”; and

5 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 24

• “I don’t tell her to do this for me.”

RI.97–98. Despite these repeated denials, the officers here, like in Guillen,

continued to press the issue. For example, Agent Girod told Mr. Nahkai:

• “I don’t believe you, all right?”;

• “[Y]ou can’t convince me that more than that didn’t happen . . . .

I know what happened between you”; and

• “I don’t think you’re telling me the whole truth there. There’s

still things you’re leaving out.”

RI.97–99; see RI.114. The officers also confronted Mr. Nahkai with

“mounting information and evidence” against him. Guillen, 995 F.3d at

1110. Agent Girod told Mr. Nahkai:

• “I know she stroked your penis on the skin until you ejaculated

. . . That’s what I know.”; and

• “You pulled it out and you had her stroke it on the skin. I know

she’s telling me the truth when she says that.” 1

RI.97, 99; see RI.114.

1 Guillen even features parallel language from law enforcement. There, an officer similarly told the suspect “we know that you purchased a pressure cooker and it’s gone. We know that a soldering iron was used in this device, and your dad’s soldering iron is missing.” United States v. Guillen, 995 F.3d 1095, 1110 (10th Cir. 2021) (emphasis added). If anything, the questioning here was more accusatory because the officers told Mr. Nahkai they believed he was guilty. In Guillen, the officers only told the suspect “the evidence . . . pointed to him.” Id. at 1102. 6 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 25

Guillen is no outlier. As the district court observed, “the successive

revelation[]” of incriminating facts has always been a mark of custodial

interrogation. RI.114; see United States v. Revels, 510 F.3d 1269, 1276 (10th

Cir. 2007) (“[I]t is difficult to ignore the effect that the display of the

recently seized drugs had on the tone of the interrogation. After being

confronted with the drugs in an accusatory manner, we have no doubt that

[the suspect] would have reasonably felt compelled to cooperate with the

police.” (citation omitted)); United States v. Rith, 164 F.3d 1323, 1332 (10th

Cir. 1999) (holding the suspect was in custody once “he was confronted with

the illegal shotgun”); Griffin, 7 F.3d at 1519 (in finding the suspect was in

custody, explaining the interrogation “continued even after it was obvious

defendant was incriminated”); cf. Jones, 523 F.3d at 1242 (explaining that

when questions “focus[] primarily on someone other than” the suspect, they

“point[] away from a finding of custody”).

Second, I find persuasive Mr. Nahkai’s argument that “Agent Girod

intensified the effects of isolation in the very ways Miranda identified as

psychological coercion.” Ans. Br. at 36. In Miranda, the Supreme Court

described “tactics” that “highlight . . . isolation and unfamiliar

surroundings” and “put the subject in a psychological state where his story

is but an elaboration of what the police purport to know already—that he is

guilty.” 384 U.S. at 450. To achieve these manipulative ends, Miranda

7 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 26

observed, officers first “display an air of confidence in the suspect’s guilt,”

and thereafter, “minimize the moral seriousness of the offense,” “cast blame

on the victim or on society,” and suggest the suspect is “[l]ike other men.”

Id. When officers use these coercive tactics, suspects experience a

“psychological state” more akin to formal arrest. 2 Id.

The record confirms Agent Girod used the tactics described in

Miranda. Agent Girod first “display[ed] an air of confidence in [Mr.

Nahkai’s] guilt”—as described above. Id. at 450. Then Agent Girod

“minimize[d] the moral seriousness of the offense,” Miranda, 384 U.S. at

450, by insisting:

• “I’m not saying you’re a bad guy. Right? You’re not a rapist,

right? You didn’t rape her.”;

• “You never raped her, right?”;

• “Like I said. I don’t think you’re a bad guy . . . And I want to

help you out here.”

2 The government responds “th[e]se portions of Miranda’s rationale

explain why warnings are required when suspects are subject to custodial interrogation, not whether the suspect is in custody in the first place.” Reply Br. at 16. I am unpersuaded. These excerpts from Miranda describe precisely the most coercive aspects of custodial interrogation. When we find those traits present in a given setting, therefore, that setting is both more likely to be custodial and more likely to involve coercion. 8 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 27

RI.97–98. He also “cast blame on . . . society,” Miranda, 384 U.S. at 450, by

suggesting:

• “There’s people out there that think you’re a rapist and you did

terrible things to her. But I, I don’t think that.”;

• “I want to be able to go and be like this guy is a good person.

He is sorry for what he did. . . . It didn’t go beyond that.”

RI.98–99. Finally, Agent Girod said Mr. Nahkai was “like other men,”

Miranda, 384 U.S. at 450:

• “I mean you got a girl touching you on the legs and stuff like

things happen. We’re all guys here. That’s normal.” RI.99.

The nature of the questioning, therefore, shows a custodial

interrogation and counsels in favor of affirmance. 3

I am unpersuaded by the majority’s contrary conclusion and

reasoning.

To begin, the majority misses the import of Guillen. The majority

claims Guillen “is distinguishable” because “Mr. Nahkai was never

3 The majority states “the premise of the dissent seems to be that law

enforcement questioning is per se coercive.” Op. at 17. That is not the case. I recognize only that, according to binding precedent, certain questioning tactics make an environment more coercive. And the officers used those tactics here. 9 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 28

confronted with ‘mounting’ physical evidence that ‘pointed to him.’” Op. at

10–11 (quoting Guillen, 995 F.3d at 1102, 1110). That Agent Girod

confronted Mr. Nahkai with the alleged victim’s testimony—and not with

physical evidence, as in Guillen—is a factual distinction that makes no legal

difference. Guillen emphasized officers “confronted [the suspect] with the

mounting information and evidence collected”—a statement that applies

equally to testimonial evidence. 995 F.3d at 1110. Neither Guillen nor

common sense supports the majority’s view that a coercive environment

depends on the precise type of incriminating evidence presented to a

suspect.

Further, the majority makes claims about the record that stand in

tension with the district court’s factual findings. According to the majority,

the interrogation “never became ‘unusually confrontational.’” Op. at 10

(quoting United States v. Lamy, 521 F.3d 1257, 1263 (10th Cir. 2008)). Yet

the district court made no such finding, instead quoting Agent Girod’s

admission the interrogation “became confrontational,” with no

qualifications. RI.96. The court later described the interrogation as

“accusatory.” RI.110. We must accept the district court’s factual findings—

which nobody says are clearly erroneous—and view the evidence for Mr.

Nahkai, who prevailed in the district court. Jones, 523 F.3d at 1239.

10 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 29

The majority also insists the interrogation of Mr. Nahkai was “typical

in terms of what one would expect during police questioning.” Op. at 9.

Again, the district court did not make this finding. Nor does the majority

explain what “typical” police questioning involves. In my view, a reasonable

suspect who went through Agent Girod’s questioning would know an arrest

was imminent. Unsurprisingly, Mr. Nahkai was indicted only a few weeks

after the interrogation. 4

On the basis of the district court’s unchallenged factual findings and

viewing the evidence in the light most favorable to Mr. Nahkai, I conclude

a reasonable person in Mr. Nahkai’s position would have understood the

interrogation as the functional equivalent of an arrest. 5

4 The majority relies on case law to support its reasoning. See, e.g.,

Op. at 9 (“Any interview of one suspected of a crime by a police officer will have coercive aspects to it.” (quoting California v. Beheler, 463 U.S. 1121, 1124 (1983)); Op. at 11 (suggesting the questioning “remained calm and conversational” (quoting United States v. Wagner, 951 F.3d 1232, 1251 (10th Cir. 2020)); see also Op. at 16 (citing United States v. Johnson, 39 F.4th 1047, 1051–52 (8th Cir. 2022)). But these cases are instructive only if one accepts the majority’s view of the facts rather than the district court’s unchallenged findings.

5 The majority says the 41-minute interrogation here was “short.” Op.

at 9. The temporal component of the custody inquiry seems relatively neutral in this case. A suspect questioned for 41 minutes is less likely to doubt their freedom than one questioned for four hours, but more likely to doubt it than one questioned for four minutes. And in Guillen, we concluded the nature of the questioning supported a finding of custody, even though the interrogation lasted a similar amount of time. See Guillen, 995 F.3d at 11 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 30

B

I now address whether Agent Girod and Investigator Nez

“dominate[d] the encounter” with Mr. Nahkai. Jones, 523 F.3d at 1240. To

assess this factor, we consider “the following helpful guideposts”:

separation of the suspect from family or colleagues who could offer moral support; isolation in nonpublic questioning rooms; threatening presence of several officers; display of a weapon by an officer; physical contact with the subject; and an officer’s use of language or tone of voice in a manner implying that compliance with the request might be compelled.

Id. (quoting Griffin, 7 F.3d at 1519). The district court held “police

domination of the encounter weighs in favor of finding Nahkai was in

custody.” RI.116. I discern no error. At least three of the sub-factors—

separation from family, isolation in a nonpublic questioning space, and

threatening language—show the officers commanded their encounter with

Mr. Nahkai.

First, the district court concluded “Nahkai’s wife, Martha, was denied

the opportunity to accompany Nahkai to the interview, and the agents

separated Martha from her husband.” RI.121; see Griffin, 7 F.3d at 1519.

According to the district court, the officers showed up unannounced at the

1102, 1110–11 (stating 50 minutes is not “an especially long period of time,” but not calling it a short period of time). 12 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 31

Nahkai home and informed Martha they wished to speak with only Mr.

Nahkai. The officers then instructed Mr. Nahkai alone to enter Agent

Girod’s truck. We have repeatedly held this kind of separation demonstrates

an interrogation was custodial. See Griffin, 7 F.3d at 1519 (holding a

suspect was in custody in part because she “was separated from her friend”);

Revels, 510 F.3d at 1276 (same when “[o]fficers purposefully separated [the

suspect] from her boyfriend and children and removed her to a back room”);

United States v. DiGiacomo, 579 F.2d 1211, 1214 (10th Cir. 1978) (same

when the “[d]efendant was kept apart from his companion”).

Second, the district court found “[t]he interrogation took place in an

unmarked police vehicle in an area that was isolated and private.” RI.120;

see Griffin, 7 F.3d at 1519. When Mr. Nahkai entered Agent Girod’s truck,

he could see it was armed with a rifle rack and a police radio, and Agent

Girod identified himself as an FBI agent. The district court found Mr.

Nahkai lived in a remote area and “the home and yard were readily

available locations for a discussion.” RI.119; see RI.91, 94. Under the

circumstances, the district court rightly concluded, a reasonable suspect

would have felt the “agents were in ‘full control’ of the . . . place of the

encounter.” RI.120 (quoting Griffin, 7 F.3d at 1518–19); see Griffin, 7 F.3d

at 1519 (finding a police-dominated atmosphere when the suspect was

13 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 32

“asked to accompany an officer to a small private office within a police-

controlled area of the airport”).

Third, the district court found the officers “used language that

suggested Nahkai’s confession was required.” RI.121; see Griffin, 7 F.3d at

1519. Agent Girod told Mr. Nahkai “you need to tell me about the other

times.” RI.98. Agent Girod also said “this is your chance to tell the truth,”

and “[t]here’s people out there that think you’re a rapist and you did terrible

things to her. . . . But I can’t help you out if you’re not telling me the whole

truth, right?” RI.98, 121–22. This encounter would suggest to a reasonable

suspect that he must answer the questions posed by law enforcement. See

DiGiacomo, 579 F.2d at 1213–14 (holding a suspect was in custody when

“[h]e was told he could choose between immediate arrest and ‘voluntary’

appearance at the Secret Service office”). Notably, after the interview

ended, Agent Girod told Mr. Nahkai he was “good to go.” RI.99. The district

court correctly reasoned “this language demonstrates that the agents were

in full control over the duration of the interrogation, and it was over when

the agents decided it was over.” RI.122.

I acknowledge the officers did not use physical force, and only two

officers interrogated Mr. Nahkai. See Griffin, 7 F.3d at 1519 (listing these

as relevant sub-factors). But we have never suggested police domination

14 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 33

requires the actual use of physical force or the involvement of a large group

of officers. 6

Guided by our standard of review, I cannot accept the majority’s

conclusion the officers did not dominate the interrogation’s atmosphere.

The majority says Mr. Nahkai made a “voluntary decision to

accompany police,” which “argues against police domination.” Op. at 13

(quoting Lamy, 521 F.3d at 1264). To the extent the majority suggests Mr.

Nahkai offered himself for questioning, our standard of review forbids that

finding on appeal. See Jones, 523 F.3d at 1239 (explaining we “view[] the

evidence in the light most favorable to” Mr. Nahkai (quoting Hudson, 210

F.3d at 1190)). The district court found Investigator Nez showed Mr. Nahkai

his badge and said he wanted “to ask about some things.” RI.93–94. Agent

Girod then told Mr. Nahkai, “Why don’t we, why don’t we jump in the ride?,”

Investigator Nez said “[o]kay,” and Mr. Nahkai offered no response. RI.94.

Only then did Mr. Nahkai enter the vehicle. Reviewing the evidence in the

light most favorable to Mr. Nahkai, I find he did not act with any

6 The final subfactor in Griffin—“display of a weapon”—favors neither

party. United States v. Griffin, 7 F.3d 1512, 1519 (10th Cir. 1993). Investigator Nez possessed a visible firearm, but he did not unholster it. Similarly, while Agent Girod’s truck contained a rifle rack, no one ever reached for any weapons. 15 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 34

meaningful willingness. See Griffin, 7 F.3d at 1519 & n.8 (declining to find

a “wholly voluntary . . . environment,” even when the suspect acted

somewhat “voluntarily”).

The majority also says “context” explains why “Mr. Nahkai and Mrs.

Nahkai were in separate locations while Mr. Nahkai was questioned.” Op.

at 14. “[N]obody specifically requested that Mrs. Nahkai be present for the

questioning,” the majority explains. Op. at 14. The majority cites no

authority that such a specific request is required. 7 In any event, Mrs.

Nahkai did indicate she wanted to accompany her husband during his

questioning, as the district court found. See RI.93, 121 (Mrs. Nakhai asking

whether the officers wanted to speak with “just him?”—meaning Mr.

Nahkai). 8

7 The majority likewise states there is no “evidence that the presence

or absence of Mrs. Nahkai had any effect on Mr. Nahkai,” Op. at 17, again without citing any authority that such evidence is required.

8 The majority also says “Mrs. Nahkai ‘remained nearby’ in the house.”

Op. at 14 (quoting Wagner, 951 F.3d at 1251). I do not see why that matters. In other cases where suspects have remained “nearby” potential supporters, we have held that separating them favored a finding of custody. See United States v. DiGiacomo, 579 F.2d 1211, 1212 (10th Cir. 1978) (explaining the “defendant and the young lady were separated from each other by some 25 to 30 feet”—less than the 30 to 40 feet here, see Op. at 14); United States v. Revels, 510 F.3d 1269, 1276 (10th Cir. 2007) (explaining the suspect was in the same house as her family, but was “separated . . . to a back room”). 16 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 35

The majority next declines to view the truck as an isolated, nonpublic

space. It reasons “Agent Girod’s truck ‘lacked virtually any official indicia

that might normally intimidate a person’”; “the questioning occurred on Mr.

Nahkai’s property”; and it was “understandable” for the officers “‘to be

cognizant of [Mr. Nahkai’s] privacy and ask to speak inside [their] car,’

given that the questioning related to a sensitive topic: sexual assault.” Op.

at 15 (quoting Jones, 523 F.3d at 1242). Again, I disagree.

For one, Agent Girod’s truck had a rifle rack and a radio—clear indicia

of law enforcement. The majority says “there is no evidence as to whether

the rifle rack” in Agent Girod’s truck “was equipped with firearms.” Op. at

15. But an inference that the rifle rack was empty is impermissible because

it favors the government. See Griffin, 7 F.3d at 1517 (drawing “reasonable

inferences” in favor of district court’s ruling). Regardless, the setting here

was unlike the car in Jones, where “besides the police radio, which . . . was

inconspicuously located . . . nothing inside the car revealed it to be a police

unit.” 523 F.3d at 1243. Agent Girod also identified himself as an FBI agent

when Mr. Nahkai entered the police vehicle.

Next, I do not see the truck’s location on Mr. Nahkai’s property as

inconsistent with police domination. It is true “courts are much less likely

to find the circumstances custodial when the interrogation occurs in

familiar . . . surroundings.” United States v. Ritchie, 35 F.3d 1477, 1485

17 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 36

(10th Cir. 1994) (citation omitted). During the interrogation, however, Mr.

Nahkai was inside an unfamiliar vehicle that belonged to law enforcement.

The officers could have transported Mr. Nahkai off his property at their

discretion.

Nor do I assume, as the majority does, that the officers were

“understandabl[y]” protecting Mr. Nahkai’s privacy by interrogating him

inside the truck. Op. at 15. The record does not suggest the officers isolated

Mr. Nahkai to protect his privacy, and the district court made no such

finding. Even when officers have conducted an interrogation about sensitive

accusations in a private place, we have recognized that isolating the suspect

demonstrates police domination. Compare United States v. Fred, 322 F.

App’x 602, 607 (10th Cir. 2009) 9 (finding a suspect in custody when

questioned about sexual abuse, in part because he was questioned “in an

enclosed room” and his wife “was not permitted to be present”), and Revels,

510 F.3d at 1276 (finding a suspect in custody when questioned about

cocaine distribution, in part because officers “removed her to a back room”),

with Lamy, 521 F.3d at 1263 (finding a suspect not in custody when

questioned about sexual abuse, in part because the suspect was questioned

9 I cite this unpublished case for its persuasive value only. See 10th

Cir. R. 32.1 (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”); Fed. R. App. P. 32.1.

18 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 37

“in a common area of his home” and “his mother came and went from the

room”), and Guillen, 995 F.3d at 1100, 1109 (finding a suspect not in a

police-dominated environment when questioned about an explosive device,

in part because the suspect “moved freely about his home” and his “father

and brother were also present”). 10

The district court correctly held each of our three guiding factors—

advisement of the right to decline questioning, nature of the questioning,

and police-dominated atmosphere—favors a finding of custody.

C

Our inquiry depends on the “totality of the circumstances,” and the

three factors are “non-exhaustive.” Jones, 523 F.3d at 1240. Acknowledging

this principle, the district court carefully reasoned “[u]nder the totality of

the circumstances, Nahkai was in custody during the interrogation.”

RI.123. I agree. This is a case where officers arrived unannounced on Mr.

Nahkai’s property, separated him from his wife, questioned him inside a

police vehicle, repeatedly accused him of committing child abuse despite his

repeated denials, referenced the alleged victim’s graphic testimony, and

10 Assuming Mr. Nahkai’s privacy should factor into our analysis, the

officers still had no reason—other than dominating the encounter—to proactively isolate Mr. Nahkai in Agent Girod’s truck. They could have simply asked Mr. Nahkai if he wanted to speak alone. And the district court stressed they could have spoken with him in “Nahkai’s house or the front yard,” rather than in the single nearby space they controlled. RI.120. 19 Appellate Case: 24-4058 Document: 48-1 Date Filed: 06/03/2025 Page: 38

then minimized the abuse itself because “we’re all guys here.” RI.97–99,

114. The officers never told Mr. Nahkai he could decline to answer their

questions or end the interrogation. Like the district court, I have no doubt

this experience would have constituted “the functional equivalent of formal

arrest” to a reasonable suspect. Jones, 523 F.3d at 1239 (quoting Chee, 514

F.3d at 1112); RI.124.