This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,





Anthony Russell Chevre,



Filed August 8, 2000

Reversed and remanded

Poritsky, Judge*

Dissenting, Schumacher, Judge


Ramsey County District Court

File No. K899613



Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)


Daniel S. Adkins, Richard Sand, Sand & Associates, 168 Nina Street, St. Paul, MN 55102 (for appellant);


            Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Anthony Russell Chevre appeals his conviction of illegal possession of a firearm, arguing that the trial court erred when it admitted his statement acknowledging possession of the firearm, and basing his argument on a claim that the statement was made during custodial interrogation without a Miranda warning.  Chevre also contends the trial court erroneously imposed the mandatory minimum five-year sentence for the weapons offense, under Minn. Stat. § 609.11, subd. 5(b), basing his argument in this respect on a claim that he had no prior felony conviction.  Because the trial court erroneously admitted Chevre’s statement made during custodial interrogation without a Miranda warning, we reverse and remand for a new trial.  Consequently, it is not necessary to decide whether Chevre’s sentence was appropriate.


            In the early morning hours of February 3, 1999, approximately six St. Paul police officers executed a search warrant on a residence located at 1920 East Larpenteur Avenue.  The warrant authorized the search of the home and a vehicle for narcotics and related items.  The officers, with guns drawn, gained entry by ramming down a door.  Once inside, the officers encountered Chevre’s girlfriend, Candace Hawthorne.  They ordered her to the kitchen floor and proceeded to the basement where they found Chevre and another man, Robert Hess.  The police ordered Chevre and Hess to get on the floor.  Chevre and Hess were handcuffed and searched for weapons. The police did not find any weapons on either of them.  Chevre and Hess were then seated and detained on a couch in the basement while the police searched and secured the area.

            After searching the basement for 30 to 35 minutes, the officers moved Chevre and Hess upstairs and detained them on another couch.  Although the search revealed no narcotics, the police found a .25 caliber Berretta pistol in a dresser drawer containing women’s clothing in an upstairs bedroom shared by Chevre and his girlfriend.  Other officers informed Officer Scott Payne that the firearm had been found.  Officer Payne testified he did not know that Chevre was prohibited from possessing a firearm but nonetheless offered to question Chevre about the firearm because Chevre had cooperated with him on a prior occasion.

Officer Payne approached Chevre on the couch, removed his handcuffs, led him to an upstairs bedroom, and partially closed the bedroom door to discuss the firearm found in that room.  Payne testified that he questioned Chevre about the gun for five to ten minutes, but before doing so, he informed Chevre that he was neither under arrest nor being taken to jail.  However, Payne also testified that the police were prepared to use force, including deadly force if necessary, to prevent Chevre from leaving.  At some point during the questioning, Chevre told Officer Payne that he and his girlfriend had acquired the gun for protection and that he last handled the gun about a month earlier.

            At the Rasmussen hearing on May 17, 1999, Chevre moved to suppress the statement acknowledging his ownership and possession of the firearm, arguing that the statement was the product of a custodial interrogation without a Miranda warning.  The trial court denied the motion.  Based on the testimony and documentary evidence, the trial court found that Chevre and his girlfriend shared a bedroom and that the firearm was found in the girlfriend’s dresser drawer in the bedroom they share.  The court also found Chevre told the officer that he purchased the gun, knew about the gun, and knew where it was located.  Although Chevre’s girlfriend testified that she was present when the warrant was executed, that she knew about the gun, and that she had purchased the gun without Chevre’s knowledge and had never shown it to him, the trial court found Chevre’s statements to the officer more credible and concluded that at the least he jointly possessed the gun with his girlfriend.  Because Chevre stipulated that he was ineligible to possess a firearm, the trial court found Chevre guilty of the charge and imposed the mandatory minimum 60-month sentence.  The trial court stayed execution of the sentence pending the outcome of this appeal.


            When an individual is in custody, a Miranda warning is required before interrogation commences.  Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966); State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991).  “[W]hether a defendant was ‘in custody’ at the time of interrogation is a mixed question of law and fact.”  State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).  Therefore, an appellate court reviews the trial court’s findings of fact regarding the circumstances surrounding the interrogation under a clearly erroneous standard, but reviews the trial court’s decision regarding custody and the need for a Miranda warning de novo.  Id.  The dissent notes that the appellate court is to give considerable deference to the trial court’s resolution of the issue as to when an interrogation becomes custodial.  But such deference is not unlimited.  State v. Champion, 553 N.W.2d40, 44 (Minn. 1995).

There is no “bright-line rule” for determining whether a defendant is in custody.  Wiernasz, 584 N.W.2d at 2.  But the Miranda rule, which is designed to protect an individual’s Fifth Amendment right against compelled self-incrimination, uses an objective test of custody:

whether the identified circumstances would prompt a reasonable person to believe that he or she was under formal arrest or restraint in freedom of movement to a degree associated with formal arrest.


Id. at 3 (citing Stansbury v. California, 511 U.S. 318, 324, 114 S. Ct. 1526, 1529 (1994); Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151 (1984)).  Custodial interrogation can still exist even where questioning occurs in the suspect’s home.  See Orozco v. Texas, 394 U.S. 324, 325-26, 89 S. Ct. 1095, 1096-97 (1969) (holding defendant was in custody requiring Miranda warning where police questioned suspect in bedroom at 4 a.m.); Wiernasz, 584 N.W.2d at 2 (explaining that in-home questioning does not itself mean interrogation was noncustodial).

            Because Chevre did not testify or present evidence at the suppression hearing, the police officers’ descriptions of the circumstances surrounding the interrogation are essentially undisputed.  Officer Payne testified that he: (1) handcuffed, searched, and detained Chevre on a couch in the basement for 30-35 minutes while police searched the basement; (2) brought Chevre upstairs and placed him on a couch while police searched the upstairs of the residence; (3) removed Chevre’s handcuffs to question him in an upstairs bedroom about the gun found in that room; (4) informed Chevre that he was neither under arrest nor being taken to jail; and (5) questioned Chevre about the gun for five to ten minutes. 

The trial court denied Chevre’s motion to exclude his statement regarding possession of the firearm because the court concluded that on the totality of the circumstances Chevre was not in custody at the time of the interrogation and no Miranda warning was required.  In doing so, the court made findings that the police: (1) removed Chevre’s handcuffs; (2) informed Chevre he was not under arrest or being taken to jail; (3) questioned Chevre in his own home; (4) separated Chevre from any other suspects for general investigative questioning; and (5) did not remove Chevre from the scene.  Because the record supports the trial court’s findings of fact relating to the circumstances of the interrogation, they were not clearly erroneous.  However, this court must independently review the trial court’s legal conclusion that since Chevre was not in custody, no Miranda warning was required.  See id. at 3 (explaining that appellate courts apply clearly erroneous standard to findings of fact, but review custody determinations de novo).

Chevre contends the trial court erroneously concluded he was not in custody when he made a statement acknowledging possession of the firearm.  We agree.  In Rosse, the defendant was: (1) blocked in her car by two police cars during a drug-violation investigation; (2) initially confronted by at least seven police officers at gun point; (3) separated from her two handcuffed companions and searched; (4) told she could go free, but only after the police had sorted everything out; and (5) questioned alone in a police car by one officer while others stood nearby.  478 N.W.2d at 486.  The supreme court explained that while none of the circumstances taken separately created custodial interrogation, the facts and circumstances, taken as a whole, could lead a reasonable person to believe he or she was in police custody and was being restrained to a degree associated with a formal arrest.  Id.  Because the defendant’s incriminating statement was made during custodial interrogation without a Miranda warning, the supreme court held that the statements were improperly admitted into evidence.  Id.  Accordingly, the supreme court reversed the conviction and granted a new trial.  Id.

The circumstances in the present case are similar to those in Rosse.  Like the defendant in Rosse, Chevre was confronted at gunpoint at night by a number of police officers as a part of a narcotics investigation.  Chevre was in his home; Rosse was in her car.  While Chevre, unlike Rosse, was handcuffed during the police officers’ search of his home, this fact makes Chevre’s situation even more custodial than Rosse’s.  After removing Chevre’s handcuffs, Officer Payne led Chevre to an upstairs bedroom and closed the door to question him about the firearm.  Chevre, like Rosse, was separated from his companions, questioned alone by one police officer in a confined area, and told he was neither being arrested nor taken to jail.  Indeed, neither Chevre nor Rosse was arrested or taken to jail.

While Chevre was in effect told he was free to go, we regard such a statement as meaningless and in no way making the situation any less custodial: we find it hard to conceive that anyone would simply walk out of his or her home in the early morning hours in the middle of a police search.  We conclude that a reasonable person in Chevre’s position would believe he was being restrained to a degree associated with a formal arrest.  Thus, the totality of the circumstances in this case shows Chevre was in custody at the time of Officer Payne’s interrogation.  Because Chevre’s incriminating statement regarding ownership of the firearm occurred without a Miranda warning, we believe the trial court erred in admitting the statement as evidence.

            Having determined that Chevre’s statement was erroneously admitted, we must determine whether admission of the statement “reasonably could have impacted the [trial court’s] decision.”  State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997) (clarifying that the erroneous admission of statements is not harmless beyond a reasonable doubt unless the verdict rendered is surely unattributable to the error).  In finding Chevre guilty of the firearm-possession charge, the trial court considered all the testimony and documentary evidence, but specifically found Chevre’s statement to Officer Payne--that Chevre jointly possessed the firearm--to be more credible than his girlfriend’s contrary testimony.

The relevant inquiry is not whether sufficient evidence exists to support the conviction but whether the trial court’s decision is “surely unattributable” to the error.  Id.  Although there is some other evidence to support the trial court’s conclusion that Chevre at least jointly possessed the firearm, it is clear, in light of the trial’s court express rationale for its decision, that Chevre’s statement impacted the conviction, and thus the verdict is attributable, at least in part, to the statement.  Therefore, any error in admitting Chevre’s statement was not harmless beyond a reasonable doubt and warrants reversal of Chevre’s conviction and a new trial.  Consequently, we need not decide the sentencing issue.[1]

Reversed and remanded.

SCHUMACHER, Judge (dissenting)

            I respectfully dissent.  "A district court's conclusions concerning custody are reviewed under the 'clearly erroneous' standard."  United States v. Griffin, 922 F.2d 1343, 1347-48 (8th Cir. 1990); see State v. Herem, 384 N.W.2d 880, 884 (Minn. 1986) (applying clearly erroneous standard).  The trial court determined Chevre was not in custody at the time of the interrogation and therefore no Miranda warning was required.  While we independently review the trial court’s custody determination and need for a Miranda warning, there is no bright line rule for determining when an individual is in custody. State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998). 

Whether a reasonable person would believe he or she is in custody depends on an evaluation of the facts and circumstances of the particular case.  State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993).  Here, the trial court heard the testimony, observed the witnesses, and reviewed the documentary evidence.  The trial court was in the best position to assess and weigh the evidence.  A trial court’s fact-specific custody determination is given considerable deference when the court applies the proper legal standard.  State v. Champion, 533 N.W.2d 40, 44 (Minn. 1995) (citing Minnesota v. Olson, 495 U.S. 91, 100, 102, 110 S. Ct. 1684, 1690, 1691 (1990)).  On the state of the record before us I cannot say that the trial court clearly erred in concluding Chevre was not in custody.  I would affirm.


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.


[1]  We note, however, that an issue was raised concerning the appropriateness of the predicate offense for a mandatory prison sentence.