State of Minnesota, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0479

State of Minnesota,
Appellant,

vs.

Spencer Charles Nichols,
Respondent.

Filed October 22, 2018
Affirmed
Larkin, Judge

Hennepin County District Court
File No. 27-CR-17-4684

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for appellant)

Steven L. Schleicher, Melissa Muro LaM ere, Maslon LLP, Minneapolis, Minnesota (for
respondent)

Considered and decided by Larkin, Presiding Judge; Cleary, Chief Judge; and
Schellhas, Judge.

2
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
In this pretrial appeal by the state , appellant challenges the district court’s order
suppressing respondent’s statements to law enforcement , as well as drug evidence found
as a result of those statements. The state argues that the district court erred in determining
that respondent was in custody when he was interrogated by law-enforcement officers in
his dorm room and that he therefore should have been provided a Miranda warning. We
affirm.
FACTS
Appellant State of Minnesota charged respondent Spencer Charles Nichols with
attempted first-degree controlled-substance sale and attempted second -degree controlled-
substance possession of MDMA. 1 The charges were based on statements Nichols made
when law-enforcement officers visited his dorm room at the University of Minnesota, as
well as drug evidence seized as a result of those statements.
Nichols came to the attention of the Department of Homeland Security when the
department identified an encrypted conversat ion between Nichols and another individual
regarding Nichols’s purchase of drugs on the dark web. 2 At approximately 9:15 a.m. on

1 Methylenedioxymethamphetamine, otherwise known as MDMA, is a hallucinogen and a
Schedule I controlled substance. Minn. Stat. § 152.02, subd. 2(d)(2) (2016); Minn. R.
6800.4210, subp. C(7) (2015).
2 The “dark web” is an isolated part of the internet made up of websites not accessible by
common internet search engines. Because the dark web is designed so that users are
difficult to trace, it is a host for marketplaces that advertise a variety of crimi nal activity
such as the sale of illegal drugs.

3
February 21, 2017, University of Minnesota Police Sergeant James Nystrom, as well as
Department of Homeland Security Special Agents Heidi Whereatt and Jesse Tabolich and
their supervisor Mike Hillis, went to Nichols’s dorm room on the University of
Minnesota’s Minneapolis campus to seek Nichols’s cooperation with an ongoing narcotics
investigation. The officers knocked on the do or to Nichols’s dorm room, and Nichols
answered. The officers introduced themselves as law -enforcement officers and showed
Nichols their credentials. After a brief conversation at the door about the reason for the
visit, Special Agent Whereatt asked to enter Nichols’s room, and Nichols agreed.
Upon entering the room, the officers immediately saw drug paraphernalia, including
a bong, a vacuum sealer, vacuum sealer bags, and a large amount of plastic -wrapped U.S.
currency. Nichols asked the officers if they had a search warrant. One of the officers told
Nichols that they did not have a warrant but that they could freeze the scene while they
sought a warrant to search his room.3 Special Agent Whereatt sat down with Nichols and
discussed why the officers were there, explaining that they knew that Nichols had ordered
marijuana on the dark web. Whereatt asked Nichols if he had ordered drugs over the
internet, and Nichols admitted that he had. Nichols asked if he was going to be arrested ,
and Whereatt t old him that the Department of Homeland Security had no intention of
arresting him because the amount of drugs Nichols allegedly ordered did not meet federal
thresholds.

3 The record is inconsistent regarding precisely when the officers told Nichols that they
could freeze the scene, but it is clear that it occurred early in the encounter.

4
Nichols signed a Consent to Search form , and Supervisor Hillis and Special Agent
Tabolich searched his dorm room. Nichols pointed out where the officers could find certain
items, including a marijuana grinder in a backpack, steroids and syringes in a locked safe,
and a large amount of U.S. curr ency underneath a garbage bin. However, Nichols denied
the officers permission to search his cell phone and his computer, and they did not do so.
Nichols had use of his cell phone during the encounter and sent texts to his girlfriend
that said, “I’m literally tempted to just beat the s --t out of all these ppl” and “I’m pretty
sure I won’t be getting arrested.” At one point during the encounter, Nichols asked to use
the restroom. Sergeant Nystrom escorted Nichols to the restroom, entered and re mained
in the restroom with Nichols, and escorted Nichols back to his dorm room. Later in the
encounter, Special Agent Whereatt asked Nichols if he was expecting any other packages
from the dark web. Nichols answered that he was expecting a shipment of “ molly” or
MDMA. Law enforcement had previously been unaware of any orders for or shipments of
MDMA to Nichols. The officers left Nichols’s dorm room at approximately 11:15 a.m.
They did not provide a Miranda warning to Nichols during the two-hour encounter.
Based on Nichols’s statements, law enforcement seized a package addressed to
Nichols at his dormitory the day after their visit. Officers opened the package pursuant to
a search warrant and found 53.9 grams of MDMA. On March 8, 2017, law enforceme nt
seized another package addressed to Nichols at his dormitory. Officers opened the package
pursuant to a search warrant and found 124.389 grams of MDMA.
Nichols moved to suppress the statements that he made to the officers in his dorm
room and the drug evidence discovered as a result of those statements . The district court

5
held a two-day evidentiary hearing on the motion and heard testimony from Special Agents
Whereatt and Tabolich, and Sergeant Nystrom.4 Following the hearing, Nichols submitted
a me morandum of law in which he argued that his statements and the resulting drug
evidence should be suppressed because he was in custody for Miranda purposes during his
encounter with law enforcement and should have been given a Miranda warning.5
The district court granted Nichols’s motion to suppress, ruling that the statements
were inadmissible because they were obtained during in -custody interrogation and the
officers did not read Nichols a Miranda warning. The district court suppressed the
MDMA, reasoning that law enforcement would not have known about and seized that
evidence but for Nichols’s un-Mirandized statements. The state appeals.
D E C I S I O N
I.
The state’s ability to appeal in a criminal case is limited. State v. Lugo, 887 N.W.2d
476, 481 (Minn. 2016). The state may generally appeal “from any pretrial order” where
the “district court’s alleged error, unless reversed, will have a critical impact on the
outcome of the trial.” Minn. R. Crim. P. 28.04, subds. 1(1), 2(2)(b). “Critic al impact is
shown where the lack of the suppressed evidence significantly reduces the likelihood of a
successful prosecution.” State v. Hunn , 899 N.W.2d 541, 544 (Minn. App. 2017)

4 The recitation of facts above is based on the district court’s findings of fact following the
evidentiary hearing.
5 Nichols also argued that his statements and the drug evidence should be suppressed
because the statements were not recorded, the statements were involuntary, the officers
violated his right to counsel, and the officers exceeded the scope of his consent to search.
The district court did not rule on these issues.

6
(quotation omitted), aff’d on other grounds, 911 N.W.2d 816 (Minn. 2018). “[G]enerally
the suppression of a confession will have a critical i mpact on the prosecution. ” State v.
Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citation omitted).
The state contends that the critical-impact requirement is satisfied because “without
[Nichols’s] statements, the MDMA shipments” that form the basis for the controlled -
substance charges in this case “would not have been discovered.” Nichols does not dispute
that the state has satisfied the critical-impact requirement.
We agree that the suppression of Nichols’s statements and the drug evidence
significantly reduces the likelihood of a successful prosecution. Indeed, the district court’s
suppression order appears to leave the state without any evidence that Nichols attempted
to procure MDMA. We therefore conclude that the critical-impact requirement is satisfied.
II.
The state contends that the “district court erred in suppressing [Nichols’s] voluntary
statements made in his dorm room and the evidence seized as a result of those statements
because [Nichols] was not in custody and a Miranda [warning] was not required.”
Miranda v. Arizona provides procedural safeguards to protect an individual’s Fifth
Amendment privilege against self -incrimination. 384 U.S. 436, 478 -79, 86 S. Ct. 1602,
1630 (1966). Statements made by a suspect during a custodial interrogation are admissible
only if the st atements were preceded by a Miranda warning. State v. Thompson , 788
N.W.2d 485, 491 (Minn. 2010). There are two components to the Miranda rule: custody
and interrogation. Id. The interrogation component is not disputed in this case. The

7
disputed issue is whether Nichols was in custody for Miranda purposes when he made the
incriminating statements in his dorm room.
“[A]n interrogation is custodial if, based on all the surrounding circumstances, a
reasonable person would believe he or she was in police c ustody to the degree associated
with formal arrest.” State v. Scruggs, 822 N.W.2d 631, 637 (Minn. 2012). The test is not
merely “whether a reasonable person would believe he or she was not free to leave.” State
v. Champion , 533 N.W.2d 40, 43 (Minn. 1995). A determination regarding whether a
suspect was in custody is “based on all the surrounding circumstances” and “no factor alone
is determinative.” Thompson, 788 N.W.2d at 491. The determination is an “objective
inquiry,” and the suspect’s subjective beliefs about whether he was in custody are therefore
irrelevant. See State v. Miller, 573 N.W.2d 661, 670 (Minn. 1998) (noting that the standard
refers to “a reasonable person in the suspect’s situation”).
Factors suggesting that a person is in custody include:
(1) the police interviewing the sus pect at the police station;
(2) the suspect being told he or she is a prime suspect in a
crime; (3) the police restraining the sus pect’s freedom of
movement; (4) the suspect making a significantly
incriminating statement; (5) the presence of multiple officers;
and (6) a gun pointing at the suspect.

Scruggs, 822 N.W.2d at 637 (quotation omitted).
Factors suggesting that a person is not in custody include:
(1) questioning the suspect i n his or her home; (2) law
enforcement expressly informing the suspect that he or she is
not under arrest; (3) the suspect’s leaving the police station
without hindrance; (4) the brevity of questioning; (5) the
suspect’s ability to leave at any time; (6) t he existence of a

8
nonthreatening environment; and (7) the suspect’s ability to
make phone calls.

Id. (quotation omitted). However, “the mere fact that questioning occurred in a suspect’s
home does not by itself mean that the questioning was not custodial in nature.” State v.
Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).
A determination of whether a suspect was in custody involves a mixed question of
law and fact. State v. Horst , 880 N.W.2d 24, 31 (Minn. 2016). This court reviews the
district court’s underlying factual findings for clear error. Id. The state does not challenge
the district court’s factual findings in this case. Whether the facts support a determination
that the suspect was in custody is a legal conclusion reviewed de novo. Id.
However, if a district court “used the proper legal standard and made a fact-specific
determination that [a] police interrogation” was custodial, an appellate court gives
“considerable, but not unlimited, deference to a [district] court’s fact-specific resolution of
such an issue when the proper legal standard is applied. ” Champion, 533 N.W.2d at 44
(citing Minnesota v. Olson, 495 U.S. 91, 100, 102, 110 S. Ct. 1684, 1690-91 (1990) (stating
that the Supreme Court was “ not inclined to disagree with [the Minnesota Sup reme
Court’s] fact -specific application of the proper legal standard” for determining the
existence of exigent circumstances)).
Because t he Minnesota Supreme Court has consistently applied the Champion
deferential standard when reviewing a custody determination for Miranda purposes, we
apply this deferential standard when reviewing the district court’s determination that

9
Nichols was in custody for Miranda purposes.6 See, e.g., Horst, 880 N.W.2d at 31 (“If the
district court applies the correct legal standard, we grant considerable, but not unlimited,
deference to the district court’ s fact-specific resolution of whether the interrogation was
custodial.” (quotation omitted)); State v. Sterling, 834 N.W.2d 162, 167-68 (Minn. 2013)
(stating that even though an appellate court “makes an independent review of the [district]
court[’s] determination regarding custody and the need for a Miranda warning,” it grants
“considerable, but not unlimited, deference to a [district] court’s fact-specific resolution of
such an issue when the proper legal standard is applied” (quotations omitted)); Scruggs,
822 N.W.2d at 637 (citing Champion, 533 N.W.2d at 44, for the proposition that “[w]e
give considerable, but not unlimited, deference to a [district] court’ s fact -specific”
determination of custody) ; State v. Heden , 719 N.W.2d 689, 694 -95 (Minn. 2006) (“We
make an independent determination about whether a sus pect was in custody . We grant
considerable, but not unlimited, deference to a [district] court’s fact-specific resolution of
such an issue when the proper legal standard is applied.” (quotation and citation omitted)).
The district court articulated and applied the custody -determination standard and
factors set forth above. It reasoned that the following facts supported a finding that

6 Although neither party cited or discussed the supreme court’s opinion in Lugo, we are
aware that the opinion discusses the Champion standard of review, referring to it as a
“purported deferential standard.” Lugo, 887 N.W.2d at 485. We do not read the supreme
court’s discussion of Champion in Lugo as changing the deferential standard that the
supreme court has consistently used to review a custody determination for Miranda
purposes. We note that the standard -of-review issue in Lugo was whether an appellate
court must apply “ a deferential standard of review on [all] pretrial State appeals, even as
to legal issues,” and that the legal issue in Lugo was not whether a suspect was in custody
for Miranda purposes. Id. at 479, 483.

10
Nichol’s interrogation was custodial: (1) the officers observed drug paraphernalia in plain
sight in Nichols’s dorm room; (2) an officer told Nichols the officers could “freeze the
room” to get a search warrant if Nichols were to withdraw consent to search or attempt to
leave the room; 7 (3) Nichols admitted to ordering marijuana products online and was
expecting a shipment of them in the mail; (4) the officers outnumbered Nichols four to one;
(5) three officers stood between Nichols and the door throughout the encounter; (6) Nichols
admitted that he was expecting a shipment of MDMA; (7) an officer escorted Nichols to
the rest room, followed him into the restroom, and escorte d him back to his room; and
(8) Nichols’s encounter with the officers lasted approximately two hours.
The district court reasoned that the following facts supported a finding that Nichols
was not in custo dy: (1) Nichols was not put in any restraints, (2) the location of the
interrogation was familiar to Nichols, (3) the officers were in plainclothes and did not
display any weapons, (4) Nichols willingly signed a consent -to-search form, (5) Nichols
retained possession of his cell phone and continual ly used it during the encounter,
(6) Nichols denied the officers permission to search his phone and his computer, and
(7) Nichols was never placed in formal custody or arrested.

7 The parties dispute whether the officers told Nichols that he could le ave during the
encounter. There is no evidence that the officers made any statements to Nichols that
expressly addressed his ability to leave. However, the officer’s statement about freezing
the room suggested that Nichols’s ability to terminate the enco unter with the officers was
limited, and the district court reasonably interpreted that statement as communicating that
Nichols was not free to leave. Indeed, at oral argument, the state seemed to agree that if
Nichols had insisted on a warrant and the officers had frozen the scene, it is not likely that
Nichols would have been allowed to leave.

11
On balance, the district court co ncluded that the totality of the circumstances
supported a finding that Nichols’s interrogation was custodial, reasoning:
where [Nichols] was being questioned in a small room with
four law enforcement officers, where [Nichols] was warned
that the room coul d be “frozen” to allow the officers to get a
search warrant if [Nichols] wished to leave or if [Nichols]
withdrew consent to search, where [Nichols] felt the need to
ask to use the restroom, where [Nichols] was escorted to the
bathroom, followed into the bathroom, and escorted back to his
room, and where [Nichols] made several severely
incriminating statements in direct response to officer
questioning, a reasonable person in [Nichols’s] position would
have felt themselves to be in custody to the degree asso ciated
with formal arrest.

The state assigns error to the district court’s analysis in two respects. First, the state
criticizes the district court’s failure to consider “the text message [Nichols] sent to his
girlfriend during the encounter stating, ‘I’m pretty sure I won’t be getting arrested.’” The
state also notes that Nichols told his girlfriend that he was “literally tempted to just beat
the s--t out of all these ppl.” The state argues that these messages show that Nichols “did
not believe that he was in custody.” This criticism is unavailing because, as the district
court correctly explained in its order, its determination “whether [Nichols] was in custody
[did] not turn on whether [Nichols] felt he was in custody to the degree associated with
formal arrest. The test, instead, is whether a reasonable person in [Nichols’s] position
would feel they were in custody to the degree associated with formal arrest.”
Second, t he state criticizes the district court’s weighing of the custody factors,
arguing that the district court over emphasized whether Nichols was seized during the
encounter and therefore improperly applied the standard for determining custody . But

12
police restraint of the suspect’s freedom of movement is a factor suggesting custody .
Scruggs, 822 N.W.2d at 637. The district court considered that factor in light of all of the
custody factors, including the circumstances that weighed against a finding of custody. We
do not discern error in the district court ’s application of the standa rd for determining
custody.
The state also relies on several cases to show that Nichols was not in custody,
including State v. Horst, 880 N.W.2d at 32, and State v. Vue, 797 N.W.2d 5, 11-13 (Minn.
2011). But, as Nichols argues, these cases are factually d istinguishable. For example, in
Horst, the defendant voluntar ily accompanied officers to a police station, a single
investigator interviewed the defendant in a conference room containing a telephone and a
door without a lock, the defendant did not make any significantly incriminating statements
during the course of the interview, and the investigator treated the defendant “as a grieving
widow” rather than as a suspect. 880 N.W.2d at 31 -32. And in Vue, the defendant
voluntarily went to a police station to give a statement, officers left the defendant alone in
the lobby of the police station for a long enough time that the defendant could have left if
he had wanted to leave, the defendant freely left the police station at the close of the
interview, and the officers did not stay with the defendant at his home after he accepted
their offer to give him a ride home. 797 N.W.2d at 12 -13. The state notes that a law-
enforcement officer escorted the defendants in Horst and Vue to restrooms during their
interrogations. 880 N.W.2d at 31; see 797 N.W.2d at 12-13 (noting that the police allowed
defendant to use the restroom and accompanied him through secured areas of the police
station). But again, the circumstances here are distinguishable: the restrooms in Horst and

13
Vue were at police stations, and not in the suspects’ homes. 880 N.W.2d at 31; 797 N.W.2d
at 12-13.
Nichols argues that other cases support a finding of custody, such as State v. Rosse,
478 N.W.2d 482, 486 (Minn. 1991), in which the supreme court concluded that a defendant
was in custody despite later being told she was free to go when, prior to being questioned
by law enforcement, law enforcement blocked the defendant’s car, multiple officers
approached the defendant’s car with t heir guns drawn, the defendant was ordered out of
the car and pat searched for weapons, and the car was searched. See also State v. Lynch ,
477 N.W.2d 743, 746 (Minn. App. 1991) (affirming custody determination where officers
observed “immediate and appare nt indications” that defendant was involved in a crime
upon stopping him, law enforcement searched defendant’s vehicle, and law enforcement
questioned defendant regarding that crime rather than about the traffic violation that was
the basis for the stop).
The cases cited by the parties illustrate that a custody determination for Miranda
purposes is heavily fact -driven and that each case must be decided b ased on its own
circumstances. In the end, we are not aware of any case that compels a conclusion that
Nichols was not in custody , for purposes of Miranda, as a matter of law. Moreover, we
recognize that the district court’s decision was based on the testimony of three witnesses,
which was presented over the course of a two-day evidentiary hearing. The district court’s
first-hand observation of the testimony of Special Agent s Whereatt and Tabolich, and
Sergeant Nystrom, no doubt influenced its decision. We do not have the benefit of those
observations. We must rely on the written record.

14
As to that record , our independent review leads us to conclude that the following
facts support a finding of custody : (1) four law-enforcement officers approached Nichols
in his dorm room to advise him that he was suspected of purchasing controlled substances
on the internet, and Nichols readily admitted his involvement in that activity; (2) the four
officers remained in or near Nichols’s dorm room during the ensuing two -hour
interrogation and search; (3) the officers effectively communicated to Nichols that he was
not free to leave when they told him that they could freeze the scene while they sought a
warrant to search his room; (4) the officers searched Nichols’s room while they questioned
him about his drug -trafficking activity and found evidence of such activity ; (5) Nichols
was under the supervision of one or more of the four officers during the entire encounter;
and (6) an officer escorted Nichols to his dormitory restroom, entered and remained in the
restroom with Nichols, and escorted Nichols back to his room.
We have also considered the facts that do not support a finding of custody , such as
the federal officers’ assurance that Nichols would not be arrested for a federal crime ,
Nichols’s unlimited use of his cell phone during the encounter, an d the lack of a formal
arrest at the end of the encounter . But those facts do not necessarily negate a conclusion
that the totality of circumstances during the two -hour encounter would have caused a
reasonable person to believe he was in police custody to the degree associated with formal
arrest.
In sum, we have independently considered the relevant custody factors. Although
another judge could have decided the custody issue differently, that is not a basis to reverse.
See Champion, 533 N.W.2d at 44 (“In this case, while individual members of this court

15
might well have resolved the dispute differently, we conclude that the trial court did not
clearly err in resolving the matter as it did.”). Moreover, because the district court applied
the correct stan dard in making its custody determination, we give some deference to the
district court’s custody determination. See id.
We hold that the district court did not err by determining that Nichols was in custody
during his dorm -room interrogation and that th e officers’ failure to provide Nichols a
Miranda warning required suppression of Nichols’s statements and the drug evidence
discovered as a result of his statements. 8 See Segura v. United States, 468 U.S. 796, 804,
104 S. Ct. 3380, 3385 (1984) (noting that exclusionary rule applies to “evidence later
discovered and found to be derivative of an illegality or fruit of the poisonous tree”
(quotation omitted)); State v. Jackson, 742 N.W.2d 163, 177-78 (Minn. 2007) (“Generally,
evidence seized in violation of the constitution must be suppressed.”). Because we affirm
on this ground, we do not consider Nichols’s additional appellate arguments that the
evidence should be suppressed because his statements were not voluntary and because the
officers violated his right to counsel.
Affirmed.

8 The state does not challenge the district court’s conclusion that the drug evidence was
obtained as a result of Nichols’s statements.