                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        May 19, 2010
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                        TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                 No. 09-4170
                                                   (D. Ct. No. 2:08-CR-00604-TC-1)
 PAUL CASEY KREHBIEL,                                          (D. Utah.)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, TACHA, and O’BRIEN, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Defendant-appellant Paul Casey Krehbiel appeals from the district court’s order

denying his motion to suppress statements he made during an encounter with law

enforcement officers in a motel room. Mr. Krehbiel contends that he was subject to a

custodial interrogation and was not informed of his rights under Miranda v. Arizona, 384


       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
U.S. 436 (1966). We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.

                                       I. DISCUSSION

          The following facts, which are undisputed on appeal, are taken from the district

court’s order denying the motion to suppress.

          On August 4, 2007, at approximately 9:00 p.m., Detective Brett Miller of the

Taylorsville City Police Department was investigating a possible stolen vehicle incident

at the Intown Suites in Midvale, Utah. Just as he arrived at the Intown Suites, Detective

Miller saw two men walking away from a red Pontiac. The men crossed the driveway in

front of Detective Miller’s car, and he saw that they carried items that could be shotguns.

One man carried a long, soft gun case and the other was carrying an object concealed

under a blanket or sheet that had the shape of a shotgun. The men entered the Intown

Suites.

          Detective Miller decided to approach the men in the hotel and called the Midvale

Police Department to ask for assistance. Sergeant Gregg Olsen and Officer Kresdon

Bennett responded to his request. All three officers entered the hotel and spoke with an

employee who told them that he believed the Pontiac was associated with the occupants

of room 341.

          The officers went to room 341. When they knocked on the door, Mr. Krehbiel

answered. Detective Miller was in plainclothes, while the other officers were in uniform.

Sergeant Olson had his gun out and pointed down when Mr. Krehbiel answered the door.

When he saw that Mr. Krehbiel was not armed, he put the gun in its holster. Detective

                                              -2-
Miller asked Mr. Krehbiel if he had been outside at the Pontiac and Mr. Krehbiel

answered that he had. Detective Miller recognized Mr. Krehbiel as the individual

carrying the object underneath the blanket or sheet. Mr. Krehbiel told Detective Miller

that the other man he was with was not in the room.

        When asked who was in the room, Mr. Krehbiel told the officers that a woman,

who the room belonged to, and a child were in the room sleeping. Detective Miller again

asked Mr. Krehbiel who was in the room and Mr. Krehbiel responded, “well, you can

come in and check.” Mr. Krehbiel opened the door and motioned the officers in with his

hand.

        The room was small, with a small entryway, a bathroom off the entryway, and two

beds. The officers entered the room and stood with their backs to the door. The door

swung shut behind them. Because of the number of officers and the size of the room, if

Mr. Krehbiel had wished to leave the room one of the officers would have had to move to

make way for him.

        The officers could see a woman sleeping on one of the beds. Detective Miller

asked Mr. Krehbiel where the guns were and Mr. Krehbiel pointed towards the other bed

and said they were under the bed and “you can check them.” Detective Miller looked

under the bed and found a rifle and a shotgun. Detective Miller called dispatch to check

the serial numbers of the guns to determine if they were stolen. The officers also saw a

spent shotgun shell in a trash can in the entryway.

        Mr. Krehbiel continued speaking with Sergeant Olson and Officer Bennett.

                                            -3-
Officer Bennett asked Mr. Krehbiel when was the last time he had “used”; Mr. Krehbiel

told him that it had been about a week. He told the officers that the other man they had

seen by the Pontiac was Mike Emery and that Mr. Emery had recently been released from

prison.

          Detective Miller checked Mr. Krehbiel’s criminal history with dispatch. This

check turned up several warrants for Mr. Krehbiel’s arrest. At this time, Mr. Krehbiel

was put under arrest. Post-arrest, Mr. Krehbiel was given Miranda warnings and made

further statements; those statements, however, are not relevant to this appeal.

          Mr. Krehbiel was later charged with being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Thereafter, he moved to suppress evidence of his pre-

arrest incriminating statements. The district court denied the motion, concluding that Mr.

Krehbiel was not in custody such that the officers were required to inform him of his

Miranda rights:

          Mr. Krehbiel was not in custody before his formal arrest. Significantly, Mr.
          Krehbiel himself asked the officers into the hotel room. The questioning of
          Mr. Krehbiel was brief and the officers did not raise their voices nor is there
          any evidence that their questioning was hostile or aggressive. The court has
          considered the fact that Mr. Krehbiel was faced with three officers, two of
          whom were in uniform. Moreover, one of the officers had his weapon
          drawn when Mr. Krehbiel answered the door. The tone of the encounter
          was somewhat accusatory when Detective Miller told Mr. Krehbiel that he
          had seen him with guns and asked him where the guns were. But when all
          the factors are weighed, the court finds that Mr. Krehbiel was not in
          custody.

          Mr. Krehbiel then pleaded guilty while reserving the right to appeal the denial of

his motion to suppress.

                                               -4-
                                     II. DISCUSSION

         Statements obtained during a custodial interrogation may not be used against a

defendant unless the government demonstrates that he was informed of certain rights

mandated by the Supreme Court’s decision in Miranda. See United States v. Chee, 514

F.3d 1106, 1112 (10th Cir. 2008). Accordingly, “two requirements must be met before

Miranda is applicable; the suspect must be in ‘custody,’ and the questioning must meet

the legal definition of ‘interrogation.’” See United States v. Perdue, 8 F.3d 1455,

1463 (10th Cir. 1993). In this case, the only dispute on appeal is whether Mr. Krehbiel

was in custody.

         A person is in custody for purposes of Miranda when his “freedom of action is

curtailed to a degree associated with formal arrest.” See id. (quotations omitted). This is

an objective question, focusing on whether, given the totality of the circumstances, “a

reasonable [person] in the [defendant’s] position would have understood [the] situation . .

. as the functional equivalent of a formal arrest.” See Berkemer v. McCarty, 468 U.S.

420, 442 (1984). We review de novo the district’s determination of whether the

defendant was in custody, but we give deference to the facts found by the district court to

support that legal conclusion. See United States v. Revels, 510 F.3d 1269, 1273 (10th Cir.

2007).

         Several factors are relevant to the custody determination, including whether the

nature and length of the officers’ questioning was accusatory or coercive and whether the

police informed the defendant that he was free to decline to answer the officers’ questions

                                             -5-
or that he could end the interview. See id. at 1275. We also consider whether the

circumstances demonstrated a police-dominated atmosphere, see id., which turns on the

following guideposts:

       [S]eparation 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.

United States v. Jones, 523 F.3d 1235, 1240 (10th Cir. 2008) (quoting United States v.

Griffin, 7 F.3d 1512, 1518–19 (10th Cir. 1993)).

       In this case, we agree with the district court that Mr. Krehbiel was not in custody.

Mr. Krehbiel emphasizes that at least one officer had his gun drawn when he entered the

motel room, the questioning was “accusatory,” the officers were blocking the only exit,

and the officers never told him that he was free to leave or that he did not have to answer

their questions. But the officer only had his gun out and pointed down as he entered the

room; it was not directed toward Mr. Krehbiel or anyone else, the officer holstered it

when he saw that Mr. Krehbiel was unarmed, and the gun was not out or brandished when

the officers began questioning him. And although Mr. Krehbiel contends that the officers

took an accusatory tone when they asked him the last time he had “used,” the totality of

the questioning was not accusatory, forceful, or long. Indeed, the district court found that

“[t]he questioning of Mr. Krehbiel was brief and the officers did not raise their voices nor

is there any evidence that their questioning was hostile or aggressive.” In addition, the

evidence suggests that the fact the officers were blocking the exit to the room was simply

                                            -6-
the result of the size and layout of the room rather than any show of authority or action on

the part of the officers themselves, and the fact that Mr. Krehbiel invited the officers into

the room in the first place counsels against a finding that he did not feel free to disregard

the officers’ questioning or to leave the room. We further note that the questioning took

place in a motel room which Mr. Krehbiel had visited in the past; the site of the

questioning was thus “neutral” and did not occur at an isolated, nonpublic space such as

at the police department. See Jones, 523 F.3d at 1240; see also United States v. Ritchie,

35 F.3d 1447, 1485 (10th Cir. 1994) (“Courts are much less likely to find the

circumstances custodial when the interrogation occurs in familiar or at least neutral

surroundings”) (alterations and quotations omitted). Finally, while the officers did not

tell Mr. Krehbiel that he was free to decline to answer the officers’ questions or that he

could end the interview, we do not find this single fact dispositive given the totality of the

circumstances. See United States v. Rith, 164 F.3d 1323, 1332 (10th Cir. 1999) (the fact

that the individual was not told that he did not have to answer the officers’ questions is

insufficient to overcome other facts indicating that a reasonable person would have felt

free to leave); see also Jones, 523 F.3d at 1240 (“[W]e must look to the totality of the

circumstances and consider the police-citizen encounter as a whole, rather than picking

some facts and ignoring others.”).

       We conclude that a reasonable person in Mr. Krehbiel’s position would not have

understood the motel room encounter as the functional equivalent of a formal arrest.

Accordingly, Mr. Krehbiel was not in custody, and the officers were not required to

                                             -7-
inform him of his Miranda rights.

                                    II. CONCLUSION

      For the foregoing reasons, we AFFIRM the judgment of the district court.

                                        ENTERED FOR THE COURT,



                                        Deanell Reece Tacha
                                        Circuit Judge




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