Fred’s ability to leave when he was done with the interview, as Mahoney testified, is quite different than Fred’s ability to leave at any time, as the district court erroneously found. We agree that the emphasized portion of Mahoney’s testimony “resounds more as a compulsion that he is not leaving until he talks.” Mahoney’s testimony does not support the district court’s conclusion that Fred was informed he was free to leave at any time.
. . . .
Taking all of these facts into consideration, we conclude that a reasonable person in Fred’s position would have understood that he was in custody during the interview. Fred was in an enclosed room at the FBI office with two FBI agents, seated with his back to a door he reasonably thought was closed. The agents wore badges and guns. The interview lasted between one and a half and two hours. McClanahan was not permitted to be present in the room while her husband was interviewed. As Mahoney testified, Fred was told he could leave when he was done. Miranda warnings were not given prior to Fred’s custodial interrogation, and the district court should have suppressed Fred’s statements.
The Tenth Circuit went on to hold that the improper admission of the statements was not harmless and reversed.
Kudos to David Freund for the case tip.