In the Matter of the Welfare of: D.L.R., Child.

This opinion will be unpublished and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

A03-1906

 

In the Matter of the Welfare of:

 

D.L.R., Child.

 

Filed ­­­September 7, 2004

Affirmed

Harten, Judge

 

St. Louis County District Court

File No. J4-03-650929

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue Southwest, Suite 425, Minneapolis, MN 55414 (for appellant D.L.R.)

 

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

 

Alan L. Mitchell, St. Louis County Attorney, Angela K. Shambour, Assistant County Attorney, 403 Government Service Center, 320 West Second Street, Duluth, MN 55802 (for respondent St. Louis County)

 

            Considered and decided by Harten, 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

 

HARTEN, Judge

            Appellant juvenile challenges his adjudication of delinquency on one count of carrying a handgun without a permit, arguing that the investigative officers lacked reasonable suspicion to stop him.  Because the officers articulated a reasonable suspicion for the stop, we affirm.

FACTS

            On 17 July 2003, the Duluth 911 dispatch received a call reporting an individual threatening others with a handgun at Lake Avenue and Fourth Street.  But when Duluth Police Officer Michael LaFontaine responded to the location, nobody was there.  Police dispatch then reported updated information that the suspect was in an alley behind the Mesaba Place Apartments, near Mesaba Avenue and Fourth Street.  As Officer LaFontaine traveled west on Fourth Street, he passed the house at 307 West Fourth Street and noticed four black males and three black females leaving the front porch and also heading east on Fourth Street.

Once Officer LaFontaine reached the area of the Mesaba Place Apartments, dispatch reported that the suspect was a black male in dark clothing with a first name that started with "D," possibly Darrell or Dwayne.  Officer LaFontaine advised other officers that four black males were currently heading east on Fourth Street from the house at 307 Fourth Street; the other officers arrived at that address soon after Officer LaFontaine.  The officers left their vehicles and ordered the people to the ground at gunpoint.

Minnesota State Trooper Gabriel Cornish also arrived at the address and noticed two black males walking away from the group and not responding to the other officers.  He noticed that one of these males, later identified as 17-year-old appellant D.L.R., had on a dark sports jersey and blue jeans, which fit the description of dark clothing.  D.L.R. looked back at Trooper Cornish, made eye contact, and then quickly looked away.  Trooper Cornish then noticed that appellant had both arms tucked under the front of his shirt causing him to believe that appellant was trying to conceal something.  Trooper Cornish reached appellant and the other male and ordered them to the ground.  When they did not respond, Trooper Cornish drew his service revolver and shouted again for them to lie on the ground and for appellant to show his hands.  Trooper Cornish then performed a pat-down search of appellant and felt a hard object bulging from the right rear pocket of appellant's jeans.  After Trooper Cornish felt what he recognized to be a gun barrel and a trigger guard, he removed from the pocket a loaded small-caliber handgun.[1]

On 21 July 2003, the state filed a delinquency petition, charging appellant with possession of a handgun by an ineligible person (count one) and carrying a concealed weapon without a permit (count two).  At the omnibus hearing, appellant moved to suppress the fruit of Trooper Cornish's search, arguing that the officers had insufficient information to stop appellant and the other individuals leaving the house at 307 West Fourth Street; the district court denied the motion.  Appellant waived his right to a jury trial pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found appellant guilty on both counts but noted that no separate disposition would be imposed on count two.

At the disposition hearing, appellant was adjudicated delinquent on count one, placed on supervised probation for one year, and ordered to enter and successfully complete the Woodland Hills Chisholm House 40/60 Day Program.[2]  Appellant now challenges his adjudication.

D E C I S I O N

            When reviewing pretrial orders on motions to suppress evidence, appellate courts may independently review the facts to determine whether the district court erred in not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  The district court's factual findings are subject to a clearly erroneous standard of review.  State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. 20 Nov. 1996).

            Both the United States and the Minnesota constitutions protect against unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  A person has been seized when, under the totality of the circumstances, a reasonable person would believe that he or she is not free to leave.  In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993).  Law enforcement officers may conduct an investigative stop or seizure, often called a Terry stop, so long as the officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."  Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968).  Appellant argues that neither the seizure by Officer LaFontaine (who ordered everyone at the house to the ground) nor the seizure by Trooper Cornish (who stopped appellant and another individual as they attempted to walk away) was supported by reasonable suspicion.[3]

            The determination of whether law enforcement officers have reasonable suspicion to conduct an investigative stop is based on the totality of the circumstances.  United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981).  The determination is also made in light of the officer's experiences.  State v. Ingram, 570 N.W.2d 173, 176 (Minn. App. 1997), review denied (Minn. 22 Dec. 1997).  Innocent behaviors generally may not provide reasonable suspicion; but the innocent factors in their totality, combined with an officer's experience, may be a sufficient basis for finding reasonable suspicion to make an investigative stop.  State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998).  The basis for a stop must be more than an "unarticulated hunch," State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000) (quotation omitted), or "mere whim, caprice, or idle curiosity," State v. Haataja, 611 N.W.2d 353, 354 (Minn. App. 2000), review denied (Minn. 25 July 2000).

            Appellant argues that the seizure by Officer LaFontaine was unjustified because the description of the suspect was generic and vague, the house was not included in the area where the suspect had been seen, and race was the primary factor used to justify the stop.  But law enforcement personnel have limited authority to "freeze the situation" of a recent crime.  Appelgate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987) (quotation omitted).  Whether an officer is justified in subjecting an individual to a limited investigative stop for purposes of freezing the situation depends on six factors:

 (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.

Id. at 108.

            At the omnibus hearing, Officer LaFontaine testified that the suspect was described as a black male wearing dark clothing.  He stated that when he drove by the house he saw several black males in dark clothing, which matched the description of the suspect.  Officer LaFontaine also testified that, although an early report stated that a white male was with another individual of an unknown race, he did not see any white males while driving through the street.  Officer LaFontaine testified that the suspect was first seen at the intersection of Fourth Street and Lake Avenue and next seen at the Mesaba Place Apartments, near the intersection of Fourth Street and Mesaba Avenue.  He testified that he first saw the house when he was en route to the second location.  Although there was a later report of the suspect heading north on Mesaba Avenue, the house was located within an area where the suspect reasonably could have been.

Although the race of the suspect was one part of the description, race was not the only factor that Officer LaFontaine relied on when he made the investigative stop at the house.  See State v. Mallory, 337 N.W.2d 391, 393-94 (Minn. 1983) (investigative stop not motivated by racial prejudice where objective basis existed to suspect individual was involved in criminal activity).  The totality of the circumstances reveals that Officer LaFontaine sufficiently articulated a reasonable basis for conducting the investigative stop at the house.

            The state also argues that the evidence was properly admitted because Trooper Cornish had an independent reasonable suspicion to stop appellant.  "Minnesota courts have generally held that resisting arrest and flight from a police officer, even if prompted by illegal police conduct, are intervening circumstances sufficient to purge the illegality of its primary taint."  Ingram, 570 N.W.2d at 178.

Trooper Cornish testified that, by the time he arrived at the house, Officer LaFontaine and other law enforcement officers were ordering everyone to the ground.  Trooper Cornish then noticed two black males who were ignoring the orders and briskly walking east on Fourth Street.  He noticed that one of the two, appellant, wore dark clothing, matching the description of the suspect.  Appellant looked over his shoulder at Trooper Cornish and made eye contact before quickly moving away.  Trooper Cornish noticed that appellant's arms were tucked under the front of his shirt.  He testified that appellant's behaviors were suspicious:

That's what drew my attention, kind of the look from my training and experience that people are kind of that look away like I hope he didn't see me look up, and so when I saw that I looked then too, and I saw that he had both of his arms tucked up underneath the front of his shirt and they were hidden, and that struck me as very odd because it's a warm night and sunny out and it wasn't cold at all and he had his hands shoved up under the front of his shirt as I believed he was attempting to conceal something.

Appellant argues that his conduct was not a sufficient intervening cause.  But Trooper Cornish testified that appellant was not complying with the other officers' orders to lie on the ground; he was attempting to leave the area, which is evidence of "flight from a police officer" that was considered in Ingram.  See id. (flight from police officer and resisting arrest provide independent justification for an investigative stop even where initial police conduct was illegal). 

We conclude that the totality of the circumstances justifies that Trooper Cornish's stopping of appellant for investigation.  Accordingly, the district court did not err in refusing to suppress the evidence.

            Affirmed.

[1] After further investigation, the officers discovered that none of the individuals at 307 West Fourth Street, including appellant, had been involved in the incident first reported at Lake Avenue and Fourth Street.

[2] D.L.R. was originally ordered to complete the 40/60 Day Program at Arrowhead Juvenile Center, but no vacancies were available.

[3] Once an individual has been lawfully seized for an investigative stop, police officers may conduct a pat-down search for weapons where there is reasonable suspicion that the individual is armed and dangerous.  Harris, 590 N.W.2d at 104 (citing Terry, 392 U.S. at 30, 88 S. Ct. at 1884-85).  Appellant concedes that, if his seizure was lawful, Trooper Cornish was justified in performing a pat-down search of appellant.