State of Minnesota, Respondent, vs. Clifford NMN Upshaw, Jr., Appellant.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1255

 

 

State of Minnesota,

Respondent,

 

vs.

 

Clifford NMN Upshaw, Jr.,

Appellant.

 

 

Filed August 24, 2004

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 03008529

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Sara Lynne Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Anderson, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

 

U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge

 

On appeal from his conviction of attempted first-degree burglary, appellant argues that the police officers did not have articulable suspicion to stop him and that his identification by a one-person show-up was unduly suggestive.  Because the officers had articulable suspicion to stop appellant and the identification was admissible under the totality of the circumstances, we affirm.

D E C I S I O N

When reviewing pretrial orders on motions to suppress evidence, this court may independently review the facts and determine, as a matter of law, whether the district court erred in refusing to suppress the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  The underlying factual findings are subject to a clearly erroneous standard of review.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

I.

Appellant Clifford Upshaw, Jr., was stopped by two police officers after they received a 911 dispatcher's call regarding an attempted burglary.  Upshaw argues that (1) he was stopped solely because he is a black man; and (2) the only other reported characteristic of the suspect was that he was wearing a green jacket but Upshaw was wearing a brown jacket.

Police are allowed to stop and temporarily detain or seize an individual to investigate if they have a reasonable, articulable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).  Underlying all Terry stops is a balancing test that requires a court to determine the reasonableness of police action by balancing the individual's Fourth Amendment interests against the importance of the governmental interests at stake.  Id. at 20-21, 88 S. Ct. at 1879-80.  The governmental interests include not only the interest in investigating possible criminal activity, but also the need for law-enforcement officers to protect themselves.  Id. at 22-24, 88 S. Ct. at 1880-81.  This court reviews questions of reasonable suspicion de novo.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

Police may conduct limited stops to investigate suspected criminal activity when the police can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."  392 U.S. at 21, 88 S. Ct. 1868.  The reviewing court considers the events surrounding the stop and the totality of the circumstances in determining whether the police had a reasonable basis justifying the stop.  United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 690 (1981).

On February 1, 2003, two officers responded to the dispatch call of an attempted burglary at a duplex near Pleasant and Franklin Avenues in Minneapolis.  The officers, who were six to eight blocks away from the incident at the time they received the call, responded immediately.  It was just after noon and visibility was good.

A resident who was inside the duplex on Pleasant Avenue had witnessed a stranger crouching down outside his front door.  The resident approached the stranger and realized that the stranger was using a tool to pry off the window molding on his front door.  The stranger saw the resident, claimed that he had been knocking on his door, and asked the resident to open the door.  When the resident refused, the man walked away.  The resident then called 911 to report the incident.

The record at the Rasmussen hearing reflects that the officers had more than the suspect's race to narrow the search for the attempted burglar.  First, the location of Upshaw matched the timing and location of the attempted burglary.  The resident had reported the direction the suspect was headed and that he was on foot, so the brief passage of time placed Upshaw close to where the fleeing suspect would be expected to be.  Second, the resident reported to the 911 dispatcher, a green jacket that the suspect wore and both officers noticed green in Upshaw's jacket.  Third, as the officers approached to inquire, they observed Upshaw looking back and forth nervously and then walking off of the public sidewalk into a private yard.  When he then became very agitated and belligerent, the officers pat-searched him for their safety and found a screwdriver.  These facts, together with the report of his race and gender, constituted reasonable suspicion to stop, investigate, and pat-search.

II.

After the stop, one of the officers called to have the resident brought for a show-up identification.  The officer met the resident on the sidewalk and said, "I would like you to see if this person looks familiar to you."  The officer opened the squad door and had Upshaw stand outside of the car.  The resident immediately said, "Yeah, that's him.  That's the guy."  It had been about 12 minutes from the time of the dispatch call to the identification.  Upshaw argues that the one-person show-up was unfairly suggestive and inadmissible. 

"When determining the admissibility of identification testimony, the reliability of the identification is critical."  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).  If the techniques used by police officers "are tainted by suggestion, the result may be irreparable misidentification."  Id. 

In determining whether pretrial eyewitness identification evidence must be suppressed, a two-part test is applied.  The first inquiry focuses on whether the procedure was unnecessarily suggestive.  Whether a pretrial identification procedure is unnecessarily suggestive turns on whether the defendant was unfairly singled out for identification. . . . However, under the second prong of the test, the identification evidence, even if suggestive, may be admissible if the totality of the circumstances establishes that the evidence was reliable.  If the totality of the circumstances shows the witness' identification has adequate independent origin, it is considered to be reliable despite the suggestive procedure.  The test is whether the suggestive procedures created a very substantial likelihood of irreparable misidentification.

 

State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995) (citations omitted). 

            It is unnecessarily suggestive for police to single out an individual based on a description, bring the individual back to the witness, and present the suspect to the witness in handcuffs.  See State v. Anderson, 657 N.W.2d 846, 851 (Minn. App. 2002); see also Taylor, 594 N.W.2d at 162.  Here, the resident reported that a black male wearing a green jacket had attempted to enter his house.  He had told the 911 operator that the man had left walking toward Franklin Avenue from his duplex on Pleasant Avenue.  He had also told the 911 operator that the man had some kind of tool because he was using it to take the window molding off his door.  

Although the officers did not tell the resident that they had a suspect meeting the description of the attempted burglar, the resident was called to identify the suspect so close in time and location to the incident that he could easily have concluded that the officers had apprehended the attempted burglar.  Also, the suspect was in handcuffs and in the squad car just before the identification.  On these facts, the identification procedure was unnecessarily suggestive.

Considering the totality of the circumstances, however, the identification was reliable.  Ostrem, 535 N.W.2d at 921 (listing five factors set out in United States v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253 (1977)).  The resident saw Upshaw face-to-face and spoke to him.  Upshaw walked away.  The resident reported the incident within minutes and correctly described Upshaw by race and gender.  He also observed the jacket color, the direction the person was walking, and that the person had a tool.  The resident did not hesitate in identifying Upshaw when asked within minutes of the incident.  Therefore, the trial court properly determined the identification was reliable.

The jury also had additional evidence presented at trial that was not presented at the Rasmussen hearing.  The tape of the 911 call contained the resident's observations that the suspect carried a black backpack and was in his late thirties, both of which were accurate.   The jury also saw the screwdriver found in Upshaw's front jacket pocket and photographs of bootprints matching Upshaw's boots running from the crime scene to where he was apprehended.  Therefore, even if there was error in admitting the identification, it was harmless.

Affirmed.