This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







State of Minnesota,





Joshua Michael Gillen,




Filed May 1, 2007

Klaphake, Judge


Meeker County District Court

File No. K6-05-163



Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Stephanie L. Beckman, Meeker County Attorney, Rick F. Lanners, Assistant County Attorney, Meeker County Courthouse, 325 North Sibley Avenue, Litchfield, MN  55355-2155 (for respondent)


John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Joshua Michael Gillen challenges his conviction and sentence for first-degree burglary, arguing that police lacked probable cause to arrest him and used coercive tactics to obtain his confession.  Because the district court did not err in denying appellant’s pretrial motions to dismiss for lack of probable cause or to suppress appellant’s confession, and because the district court did not abuse its discretion in imposing the presumptive sentence and refusing to depart, we affirm.



            Police may arrest a person suspected of committing a felony without a warrant when they have probable cause.  Minn. Stat. § 629.34, subd. 1(c)(3) (2004).  Probable cause is examined under the “totality of the circumstances” and exists when police have “facts and circumstances that would warrant a prudent person in the officer’s position to reasonably conclude that the person committed a crime.”  State v. Vereb, 643 N.W.2d 342, 347-48 (Minn. App. 2002).  This court independently reviews the facts to determine whether probable cause existed to justify an arrest.  State v. Olson, 436 N.W.2d 92, 94 (Minn. 1989).

            Here, a number of facts linked appellant to a string of burglaries that occurred in rural Meeker County, including a January 12, 2005 burglary at the Christenson residence.  During that burglary, a number of items were taken, including blank checks, a .410-gauge, bolt-action rifle, a pellet gun, an antique railroad lantern, and a Johnson six-horsepower boat motor.  One of the stolen checks was later cashed for $130 at a local convenience store.

            On March 2, 2005, a confidential informant contacted an investigator with the Meeker County Sheriff’s Office to report that he or she had seen appellant unloading what the informant believed were stolen items at the trailer home of James Oswald, Jr.  Appellant had been living at Oswald’s trailer for a few months.  The informant also informed the investigator that approximately one month earlier, appellant had been attempting to sell a .22-gauge pump rifle and a .410-gauge, bolt-action rifle.

            On March 3, 2005, police arrested Oswald at his trailer on an unrelated outstanding warrant.  Police thereafter questioned Oswald about the string of burglaries and thefts in the area.  Oswald was concerned about going back to jail, and police told him that his cooperation would go a long way in helping him.  Oswald initially spoke in generalities about stealing scrap metal and knowing that appellant had stolen items.  Police continued to ask Oswald for more tangible information on appellant.  Oswald eventually told them that he knew appellant had guns but claimed that he had never seen any of them, and that appellant had cashed a check at a local convenience store.

            Oswald thereafter consented to a search of his trailer and identified various items that he claimed appellant had brought to the trailer.  Some of the items were found in the bedroom where Oswald claimed appellant was staying, including a boat motor matching the description of the one stolen from the Christenson residence.  Local units were notified to locate appellant, and on March 4, 2005, at approximately 4:00 a.m., appellant was arrested at a friend’s trailer.

            Appellant argues that police did not have probable cause to arrest him because they had nothing more than a mere suspicion that he was involved in the burglary at the Christenson residence.  But several pieces of information obtained from various sources directly linked appellant to items taken during that burglary, including a gun that an informant had claimed appellant was trying to sell and a boat motor that was found in the bedroom where appellant was staying.  Appellant also argues that the statements given by Oswald and the search of Oswald’s trailer “yielded marginally relevant pieces of information” linking appellant to the Christenson burglary and that this information was not reliable because it was “procured [by the investigator] through highly suspect tactics.”  But the information obtained from Oswald was corroborated by other information already held by police.  Considering the totality of the circumstances, we conclude that police had probable cause to arrest appellant because they had facts and circumstances that would warrant a “prudent person” to reasonably conclude that appellant had committed a crime.  See Vereb, 643 N.W.2d at 347-48.


            Appellant argues that the district court erred by refusing to suppress his confession, which he claims was the product of coercive police tactics.  Even when a defendant has knowingly, intelligently, and voluntarily waived his or her rights to remain silent under Miranda, the state still must show the voluntariness of a confession by a preponderance of the evidence.  State v. Andrews, 388 N.W.2d 723, 730 (Minn. 1986).  A confession is not voluntary when “the actions of the police, together with other circumstances surrounding the interrogation were so coercive, so manipulative, so overpowering that [the defendant] was deprived of his ability to make an unconstrained and wholly autonomous decision to speak as he did.”  State v. Jones, 566 N.W.2d 317, 326 (Minn. 1997) (quotation omitted).

            A court must examine the totality of the circumstances surrounding the confession and must weigh factors that include “the defendant’s age, maturity, intelligence, education, experience and ability to comprehend; the lack of or adequacy of warnings; the length and legality of detention; the nature of the interrogation; and whether the defendant was deprived of physical needs or denied access to friends.”  Id.; see also State v. Blom, 682 N.W.2d 578, 614 (Minn. 2004).  While police should not make promises to encourage a defendant to confess, a promise does not automatically render a confession involuntary as long as the promise does not rise to the level of nonprosecution or escape from punishment.  See In re Welfare of D.S.N., 611 N.W.2d 811, 814 (Minn. App. 2000).

            Appellant insists that police intimidation began immediately:  he was arrested at 4:00 a.m., transported to jail in a squad car with a barking K-9 dog in the back seat, and held in jail for more than six-and-one-half hours before his interrogation began.  Appellant also insists that he was questioned for more than an hour and a half, which he characterizes as “lengthy.”  Appellant further insists that during the interrogation, the investigator “intimidated [him] with threats of going back to prison in Texas and of avoiding looking bad in the eyes of the court by having to appear more than once.”  Appellant further claims that he was particularly susceptible to the investigator’s coercive and intimidating tactics because he was “coming down off of a methamphetamine high.”

            A reading of the transcript, however, shows that appellant’s confession was voluntary and not the product of impermissibly coercive police tactics.  Appellant served time in Texas on a prior conviction and was familiar with the criminal justice system.  He was given a Miranda warning and chose to speak without legal counsel.  Appellant appears to have fully understood the questions asked of him and the implications of his statements.  The interrogation itself included two breaks and was not unusually long.  During the interrogation, appellant was offered water several times and was even offered food at one point, which he declined.  Most important, no promises were made to appellant regarding release from custody or nonprosecution in exchange for his confession.  While the investigator’s methods were designed to obtain information from appellant, those methods were not so oppressive as to overcome appellant’s will and produce an involuntary admission of guilt.

            Appellant also argues, for the first time on appeal, that police violated the 48-hour rule by failing to obtain a judicial probable cause determination within 48 hours after his arrest.  See Minn. R. Crim. P. 4.03, subd. 1.  Generally, appellate courts decline to decide issues that have not been addressed by the district court, but are raised for the first time on appeal, even if the issues involve constitutional questions regarding criminal procedure.  State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).  Appellant’s failure to raise this issue earlier leaves us with a record that fails to provide an explanation for the delay.  See State v. Jackson, 472 N.W.2d 861, 863 (Minn. 1991) (stating “probable cause determination made later than 48 hours after arrest is unconstitutional unless the state can demonstrate the existence of a bona fide emergency or other extraordinary circumstance”); State v. Case, 412 N.W.2d 1, 4 (Minn. App. 1987) (refusing to vacate defendant’s conviction due to passage of more than 36 hours between time of his arrest and time he first appeared in court, when defendant was not prejudiced by the delay), review denied (Minn. Oct. 28, 1987).  Because we cannot determine whether the delay in this case was deliberate or whether appellant was prejudiced by the delay, we decline to address this issue for the first time on appeal.


            A sentencing court may depart from the presumptive sentence if substantial and compelling circumstances are present.  Minn. Sent. Guidelines II.D.  A downward dispositional departure may be appropriate if a defendant is “particularly amenable to probation or if offense-related mitigating circumstances are present.”  State v. Donnay, 600 N.W.2d 471, 473-74 (Minn. App. 1999) (quotation omitted), review denied (Minn. Nov. 17, 1999).  When considering whether a defendant is particularly amenable to treatment, a court may consider the defendant’s age, prior record, remorse, cooperation, attitude while in court, and support of family or friends.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1981).  This court, however, will not reverse the district court’s departure decision absent an abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

            Appellant argues that the district court abused its discretion by refusing to grant his request for a downward dispositional departure from the sentencing guidelines so as to allow him to complete the Teen Challenge program to which he had been accepted and was participating in at the time of sentencing.  He insists that departure was warranted given his participation in this program, his expressions of remorse, and the support he received from family and community members.

            The district court refused to depart from the presumptive sentence, explaining that although appellant had led a “tough life,” he had made “a lot of other people’s lives tough also.”  The court emphasized that “[c]rimes such as this, invasion - - invading someone’s home, it’s like an assault, assaulting someone’s person.  It stays with them for their whole life.”  The court further noted that appellant would have opportunities in prison to access vocational training, drug and alcohol treatment, and religious programs.  Because the district court’s decision was well within its discretion, we affirm the sentence imposed on appellant.