This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Jesse Joe Castillo,


Filed June 16, 1998


Peterson, Judge

Anoka County District Court

File No. K69769

Steven M. Tallen, Tallen & Baertschi, 4640 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant),

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent).

Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Mansur, Judge.*

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



Appellant challenges his conviction for possession of stolen property in excess of $500, arguing that the district court erred in denying his motion to suppress evidence because (1) the police officer who stopped his automobile lacked a particularized and objective basis for suspecting him of criminal activity; and (2) police officers lacked probable cause to arrest him for attempted burglary. We affirm.


On January 3, 1997, at 1:06 a.m., Blaine police officer Jeffery Warner received a report that a witness had observed two males in their early twenties, one wearing a black jacket and the other wearing a blue jean jacket, attempting to break into the Homestead Antiques store at 12800 Central Avenue. The witness reported that the men left the scene in a white Honda Civic driving north on the Central Avenue service road, with the man in the black jacket driving.

Warner drove north on Central Avenue, toward the antique store, and at 1:10 a.m., saw a car that appeared to be a darker blue Honda Civic with "a couple of males in the vehicle" traveling south on Central. Warner made a u-turn and followed the car. Warner testified that he believed that the driver was speeding because he had to speed up to between 70 and 80 miles per hour to catch up with the car.

As Warner caught up to the car, the driver suddenly applied the brakes at an intersection even though the car had a green light. At that point, Warner was approximately two car lengths behind the car and was able to confirm that it was a blue Honda Civic with two young males in it.

At 1:13 a.m., Warner stopped the Civic. As Warner approached the vehicle, he saw that the driver was wearing a black leather jacket and the passenger was wearing a blue jean jacket. Warner ordered the driver, appellant Jesse Joe Castillo, out of the car, searched him for weapons, and asked him where he had been. Castillo said that he was traveling from his home in Coon Rapids to St. Paul and denied stopping anywhere in between. While patting Castillo down, Warner noticed fresh snow falling from Castillo's pants cuff. When asked why there was fresh snow in his cuff when he had just come from home, Castillo said that he had stopped at Food and Fuel on University Avenue to pick up his passenger, Jason Moore. Warner placed Castillo in his squad car.

Warner then spoke to Moore, who said that Castillo had picked him up at the Tom Thumb on Jefferson Street. Warner searched Moore and found two screwdrivers and a utility knife in his pocket. These items were seized and Moore was placed in a different squad car than Castillo.

Warner returned to his squad car and asked Castillo if he had anything illegal in the car. Castillo replied that he had just purchased some truck speakers from a friend and did not think they were stolen, but he was not sure. Castillo consented to a search of the car, and police found a large screwdriver between the driver and passenger seats.

In the meantime, two other Blaine police officers went to Homestead Antiques and spoke with two witnesses. The witnesses reported that they saw two men near the store, one in a black jacket who was kicking and prying at the front door with a bar, and another in a blue jean jacket just watching. The officers found fresh scratches and pry marks on the front door of the store, two sets of footprints that led up to the front door and continued around the building, and tire tread marks in the store parking lot. One of the officers drove to where Castillo was stopped to compare the footprints to Castillo's and Moore's shoes and the tire tread marks to the tires on the Civic. The parties stipulated that the tire tread patterns were dissimilar and that one set of the footprints found at the crime scene was similar to the tread pattern on Moore's boots.

Castillo was arrested, and in a search incident to the arrest, two checks drawn on a bank account in someone else's name were found in his wallet. The total amount of the checks was $566.42. Castillo was charged with (1) attempted second-degree burglary in violation of Minn. Stat. § 609.582, subd. 2(d) (1996); (2) possession of burglary tools in violation of Minn. Stat. § 609.59 (1996); (3) and possession of stolen property with a value exceeding $500 in violation of Minn. Stat. §§ 609.53, subd. 1, 609.52, subd. 3(3)(a) (1996).

Castillo moved to suppress the evidence seized by police on the grounds that there was not a sufficient basis for stopping or arresting him. The district court found that (1) Warner had a reasonable, articulable suspicion for stopping the Civic; and (2) police had probable cause to arrest Castillo for attempted burglary.

Castillo waived his right to a jury trial and submitted the case on stipulated facts, while preserving his right to appeal the omnibus ruling. The district court found Castillo not guilty of attempted burglary and possession of burglary tools, but convicted him of possession of stolen property exceeding $500.



If the trial court credits the testimony of the arresting officers, or if the facts are not significantly in dispute, this court will independently review the application of law to determine the adequacy of the basis for the stop in view of the officers' testimony. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985); see also State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988) (citing Berge).

A limited investigative stop is lawful if the officer is able to articulate at the judicial hearing on the validity of the stop that he had a "particularized and objective basis for suspecting the particular person stopped of criminal activity." The officer makes his assessment on the basis of "all the circumstances" and "draws inferences and makes deductions-inferences and deductions that might well elude an untrained person." These circumstances include the officer's general knowledge and experience, the officer's personal observations, information the officer has received from other sources, the nature of the offense suspected, the time, the location, and anything else that is relevant.

Appelgate v. Commissioner of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981).

Police have authority to freeze the situation in the vicinity of a recent crime. Id. Six factors that may be taken into account in determining the propriety of the stop of a motor vehicle in such a situation are

(1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender's flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.


Applying these factors to the present case, we conclude that Warner had a particularized and objective basis for suspecting Castillo of criminal activity. First, Warner had a description of the suspects and the vehicle in which they fled. Although, the witnesses said that the vehicle was white, Warner testified that he stopped the Civic because (1) it was the right make and model; (2) it had a lot of road salt and dirt on it; (3) during his two and a half years of police experience, witnesses had often made mistakes identifying the color of vehicles; and (4) the age and sex of the occupants matched the suspect descriptions given by witnesses. Second, the Civic was first seen between three and four miles from Homestead Antiques, approximately four minutes after witnesses saw a Civic fleeing the scene. The Civic could have taken several different routes away from the store, but if it traveled south, it would probably have been about where it was when Warner spotted it. Third, there was other traffic, but the number of persons about in the area was limited at one a.m. Fourth, the Civic was seen going north on the service road, but there was no information about whether it turned onto the highway. When Warner saw the Civic, it was traveling southbound on Central, headed away from Homestead Antiques. Fifth, Castillo's fast and erratic driving was consistent with someone fleeing. Based upon these factors, Warner had a particularized and objective basis for suspecting that the occupants of the Civic had been involved in an attempted burglary. Because Warner's stop of Castillo's vehicle was based on a particularized and objective suspicion that the occupants of the Civic had been involved in an attempted burglary, we need not determine whether there was also a sufficient basis for Warner to stop Castillo for a traffic violation.


A determination of whether the police had probable cause to arrest is a determination of constitutional rights, and this court makes an independent review of the facts to determine the reasonableness of the police officer's actions.

State v. Olson, 436 N.W.2d 92, 94 (Minn. 1989), aff'd, 495 U.S. 91, 110 S. Ct. 1684 (1990).

Probable cause for an arrest has been defined to be "a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty."

State v. Olson, 342 N.W.2d 638, 640 (Minn. App. 1984) (quoting Garske v. United States, 1 F.2d 620, 623 (8th Cir. 1924)). The court must examine the totality of the circumstances to determine whether probable cause exists. Eggersgluss v. Commissioner of Pub. Safety, 393 N.W.2d 183, 185 (Minn. 1986).

When Castillo was arrested, Warner knew that (1) Castillo's and Moore's sex, approximate ages, and clothing matched the suspect descriptions given to the police by witnesses at Homestead Antiques; (2) Castillo was driving the same make and model of car seen by witnesses at the crime scene; (3) Castillo was stopped within three to four miles of Homestead Antiques, approximately four minutes after witnesses reported the suspects leaving; (4) Castillo was driving erratically; (5) Castillo had fresh snow in the cuffs of his pants, which was inconsistent with his initial claim that he had driven directly from his home to where he was stopped and consistent with the witnesses' account of the suspects' actions at Homestead Antiques; (6) Castillo and Moore gave inconsistent stories; (7) Moore had two screwdrivers and a utility knife in his pocket; (8) a large screwdriver was found between the driver and passenger seats of the Honda Civic; and (9) the suspects at Homestead Antiques tried to pry the door open.

These facts and circumstances provided Warner with a reasonable ground of suspecting that Castillo had attempted to break into the Homestead Antique store.