This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Dustin Joe Gilligan,



Filed January 14, 2003


Gordon W. Shumaker, Judge


Rice County District Court

File No. K701946




Mike Hatch, Attorney General, Robert Stanich, Assistant Attorney General, Suite 1400, 445 Minnesota Street, St. Paul, MN 55101; and


Timothy L. Morisette, Northfield City Attorney, P.O. Box 240, 105 East Fifth Street, Northfield, MN 55057 (for respondent)


Thomas G. Dunnwald, 1150 E. Grain Exchange, 412 South Fourth Street, Minneapolis, MN 55415 (for appellant)


            Considered and decided by Shumaker, Presiding Judge, Minge, Judge, and Mulally, Judge.*


U N P U B L I S H E D  O P I N I O N


            Appellant Dustin Joe Gilligan was convicted after a bench trial of alcohol-related driving offenses and leaving the scene of an accident.  On appeal, Gilligan contends that the alleged admission upon which the district court relied in finding him guilty was obtained in violation of his Miranda rights and that the circumstantial evidence was insufficient to establish beyond a reasonable doubt that he was the driver of a motor vehicle involved in an accident.  Because Gilligan’s inculpatory statement was obtained in violation of Miranda and because the circumstantial evidence does not support the convictions, we reverse.


            This case arises out of a motor-vehicle accident in Northfield at about 11:00 p.m. on April 20, 2001.  A pickup truck struck some parked cars near the city hospital.  No one saw the collision but a resident two blocks away heard the crash and went to the hospital area to investigate.  The resident saw a pickup truck on the boulevard and two males walking briskly away from the scene.

The police investigated and determined that the registered owner of the truck was Garrett Crosby.  Inside the truck’s glove box was an insurance card identifying Gilligan as the insured.  There was also a magazine with Gilligan’s name and address inside the truck.

As other officers investigated the scene, Sergeant Mark Murphy drove around the area trying to locate the two men who had been seen walking away from the accident site.  Murphy had general descriptions of both.

About eight blocks from the scene, Murphy saw Gilligan and noted that he fit the general description of one of the males.  When Murphy drove his squad car alongside him, Gilligan veered off in another direction.  Murphy interpreted this conduct as an “avoidance move” and believed that Gilligan was about to run away.  Murphy then “jumped the squad up onto the boulevard” and “started driving towards him and then he stopped.”

Murphy asked Gilligan what he was doing and then asked if he had been in an accident.  Gilligan said he had not.  The officer asked if he knew Garrett Crosby and Gilligan said he did.  Murphy asked again if Gilligan had been in an accident, and this time, Gilligan admitted he had been in an accident.  Upon further questioning, Gilligan said that Crosby was the driver and told the officer that they had been at a friend’s house.  Murphy asked whether Crosby might have gone back to the friend’s house, and Gilligan said that was possible.  The officer asked if Gilligan could show him where the friend’s residence was, and Gilligan said he would try.  Murphy put him in the back seat of the squad car.  By this time, the officer had also concluded that Gilligan was intoxicated.

On the way to the friend’s residence, the officer first drove to the accident scene and asked Gilligan if he remembered being there.  Gilligan said he did.  When the officer arrived at the friend’s apartment complex, he received a cell-phone call from another officer who had located Crosby.  This officer told Murphy that Crosby said he had sold the pickup to Gilligan.  The officer also told Murphy that Crosby had been sleeping at his residence when the officer found him.

At this point Murphy, ruled out Crosby as the driver of the pickup and “knew that the information that Gilligan was giving me was not all correct.”  Murphy confronted Gilligan with what the other officer had reported.  Gilligan did not believe it.  Murphy then called Crosby on the squad’s speaker phone and allowed Gilligan to listen while Crosby confirmed the information.  Murphy testified that

after we hung up, I basically confronted him again about being the driver, and, you know, if he -- you know, if he believed, -- you know, believed me now.  He didn’t really have any -- anything to say other than, “Just arrest me.”


With that statement by Gilligan, Murphy drove him to a location where the resident who had described the two males at the scene was waiting.  The resident was not able to positively identify Gilligan as one of the males, but at trial the resident said Gilligan had the same build and clothing as one of the males.  The resident said he was concerned about identifying Gilligan because he feared for the safety of his home and family.

Because Gilligan displayed signs of intoxication and because Murphy had concluded that Gilligan had been the pickup’s driver, officers arrested him.  An intoxilyzer test showed Gilligan’s alcohol content to be 0.20.

The district court denied Gilligan’s pretrial motion to suppress his statement, “Just arrest me,” and after a bench trial, the court found Gilligan guilty of second-degree driving under the influence, second-degree driving with 0.10 or more alcohol concentration, and leaving the scene of an accident.

The court expressly found that there had been an accident; a witness saw two people walking away from the scene; Gilligan was the owner of the pickup truck; Crosby was not the driver; either Gilligan or “an unnamed or unlocated person seen walking from the scene” was the driver; Gilligan took evasive action when he first saw the police; Gilligan twice lied to the police; and Gilligan admitted being at the accident scene.  The court then found:

[W]hen [Gilligan] was allowed to hear the phone call with Mr. Crosby, his statement was “Arrest me,” or “You can arrest me.”  That’s an admission, and the court finds that very strong in this case, an admission that he was the driver.


Gilligan appeals, contending his statement, “arrest me,” was improperly elicited in violation of his Miranda rights, and the circumstantial evidence is not sufficient to establish beyond a reasonable doubt that he was the driver of the pickup.


         We review the district court’s findings of fact to determine whether they are clearly erroneous.  State v. Shoen, 578 N.W.2d 708, 716 (Minn. 1998).  But we make an independent review of the district court’s determination regarding custody and the need for a Miranda warning.  Id.  Gilligan’s statements must be suppressed as violating Miranda if they were made while Gilligan was in custody and while Gilligan was being interrogated.  Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).

1.         Custody

Gilligan’s first argument on appeal is that he was in custody when he made the statement upon which the district court relied as an admission that he was the driver and, therefore, he was entitled to a Miranda warning before any interrogation.

In Miranda, the seminal case, the Supreme Court held that the product of a custodial interrogation may not be used in a criminal prosecution unless procedural safeguards are applied, stating:

the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self‑incrimination.



There is no bright-line rule that the courts apply to determine whether a person is in police custody.  State v. Wiernasz, 584 N.W.2d 1, 2 (Minn. 1998).

The test is whether a reasonable person under the circumstances would believe that he or she was in police custody of the degree associated with formal arrest.


State v. Champion, 533 N.W.2d 40, 43 (Minn. 1995) (citing State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991).  “[T]he only relevant inquiry is how a reasonable person in the suspect’s position would have understood the situation.”  Id. (citing Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151 (1984)).

We first look at Gilligan’s initial encounter with Sergeant Murphy.  Murphy “jumped” his squad car up onto the boulevard to block Gilligan’s movement.  This aggressive police conduct, although not improper, would at the very least suggest to the reasonable person that he was not free to continue with his journey.  Unlike the situation in which there is a more casual detention that escalates to a more definitive restraint after investigative inquiry, here a definitive restraint came first.  That fact situation would likely cause a reasonable person to believe that he was not free to leave until the officer said he could leave.  What followed was the officer’s request that Gilligan ride in the squad car to show the officer where Gilligan’s friend lived.  Considering the officer’s manner of stopping Gilligan, it is unlikely that a reasonable person under the circumstances would believe that he was free to decline the officer’s invitation and to continue unfettered on his way.  It is arguable, then, that Gilligan might have understood that he was being arrested when he entered the squad car.  But we need not so hold because later circumstances show that Gilligan was effectively in custody before his statement, “Just arrest me,” which the district court found to be an admission that he was the driver.

When Sergeant Murphy drove off in the squad car with Gilligan in the back seat, the officer suspected that the driver of the pickup was either Crosby or Gilligan.  After receiving the cell‑phone call from the officer who had located Crosby, Murphy ruled out Crosby as a suspect.  He then focused his investigation entirely on Gilligan and confronted him with the Crosby information for the sole purpose of obtaining Gilligan’s admission that he had been the pickup driver.  On cross‑examination, Sergeant Murphy testified as follows:

Q.        Okay.  And at that point, given the other information, you then – I think you had indicated you confronted him, you were attempting to show or demonstrate that he in fact was the driver of this vehicle, right?


A.        Correct.


Q.        Okay.  And this is gone over obviously in the pre-trial, but at no time was he ever given any advisory as to his Miranda rights?


A.        Not by me, no.


Q.        Okay.  And the purpose in asking or in calling back to Faribault to talk to the other gentleman, the other potential driver, Mr. Crosby, was not to ascertain who the guy in your car was, but to see if you could get him to admit he was driving?


A.        Correct.


Before the cell‑phone call from the other officer, Gilligan, or any other reasonable person, might have believed that Murphy thought Crosby was the driver and was merely using Gilligan to help locate Crosby.  As such, Gilligan, or any other reasonable person, arguably might have concluded that he was not in custody.  But when the officer received the cell‑phone call and then told Gilligan that Crosby had been home in bed and had said that he sold the truck to Gilligan, neither he, nor any other reasonable person, would likely believe that he was not in custody to a degree ordinarily associated with formal arrest.  Thus, before Gilligan said, “Just arrest me,” he was in custody and the officer was required to give a Miranda warning before any further interrogation.

2.         Interrogation

Information that the police obtained from a suspect through an interrogation that violates Miranda is to be suppressed.  State v. Provost, 490 N.W.2d 93, 96 (Minn. 1992) (citing Miranda, 384 U.S. at 444-45, 86 S. Ct. at 1612-13).  The supreme court has defined “interrogation” as

express questioning or its functional equivalent.  This is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonable likely to elicit an incriminating response from the suspect.


Rhode Island v. Innis, 446 U.S. 291, 300‑01, 100 S. Ct. 1682, 1689‑90 (1980).

Sergeant Murphy’s approach was first to confront Gilligan with the information that the other officer had obtained about Crosby, and, when that did not produce an admission, to have Crosby himself confirm the information.  The officer not only knew that these approaches were “reasonably likely to elicit an incriminating response” from Gilligan but that that was the officer’s sole objective.  Sergeant Murphy’s statements constituted interrogation.  The district court erred in refusing to suppress Gilligan’s statement, “Just arrest me.”

3.         Sufficiency of the Evidence

Without Gilligan’s statement, the case against him is entirely circumstantial.  We review the evidence to determine whether it is sufficient to support the findings.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The only finding at issue is that Gilligan was the driver of the pickup, and when a conviction is based solely on circumstantial evidence, we conduct our review with stricter scrutiny than a conviction based in part on direct evidence.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  Id.  

It is undisputed that Gilligan owned the pickup and that the pickup was involved in the accident.  It is also uncontested that no one saw any actual driving, but only that two men were seen walking away from the site after the crash.  Gilligan admitted that he was in the accident.  It is also clear that Gilligan lied when he first denied being in the accident.

It would be disingenuous to suggest that the evidence does not preponderate against Gilligan.  But the best inference to be drawn from the circumstantial evidence is that it is more likely that Gilligan was driving than that his companion was driving.  It is not unreasonable to conclude, however, that the companion might have been the driver.  The evidence simply is not sufficient to support a finding beyond a reasonable doubt that Gilligan was the driver.  Therefore, Gilligan’s convictions must be reversed.


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