State of Minnesota, Respondent, v. Arnez Hawthorne, Appellant.

State of Minnesota, Respondent, v. Arnez Hawthorne, Appellant. A04-397, Court of Appeals Unpublished, March 15, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-397

 

State of Minnesota,

Respondent,

 

v.

 

Arnez Hawthorne,

Appellant.

 

Filed March 15, 2005

Affirmed

Huspeni, Judge*

 

 

Hennepin County District Court

File No. 03056995

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent) 

 

John M. Stuart, State Public Defender, Davi E.F. Axelson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

In challenging his conviction of felon in possession of a firearm, appellant argues that officers who surrounded an apartment building that was a gathering place for public drinking and trespassing did not have articulable suspicion to stop him.  Because there was no seizure of appellant until he ran from the officers and, even if there was an illegal seizure, the illegality was cured by appellant's flight from the officers, we affirm.

FACTS

In early August 2003, police officers began driving by an apartment building because it had become "a problem address" and the landlord had asked for extra patrolling.  Officer Stephen McBride testified that over the summer, there had been numerous calls at that address for parties, drinking, shots fired, loitering, and trespassing.  "No trespassing" signs had been posted.  The owner had attempted to investigate on August 8 when people had gathered there, but someone threw a beer bottle at him and his car.  The police followed up that incident by identifying some of the people there and making two arrests.  Although officers saw people gathering there the next night, they were unable to identify anyone, because when the squad car would pull up the people ran inside or to the back.  Those who ran inside the secure building pulled the door closed behind them.

On August 9, after experiencing the same problem, the officers arranged to have five squad cars converge on the property, some from the back and some from the front, and to stop the people and determine whether they were tenants.  In the early hours of August 10, approximately ten officers, half from the back and half from the front, approached the 12- to 20-person gathering.  McBride testified that it would not have been safe for a single squad car to approach the gathering. 

Officer Stephen Moore with his partner, Officer Hien Dinh, approached the property from the rear.  Moore did not observe anyone as he approached from the alley.  But when he was alongside the building, he heard officers yelling at people to stop.  At that moment three black males, including appellant Arnez David-Deon Hawthorne, ran around the building to the back.  When the three saw Officer Moore and the others, they stopped and turned around and ran back toward the front.  Both Officers Moore and Dinh saw appellant running to the back, his hand on his waistband, pulling out a gun.  When appellant saw the officers, he turned around, dropped the gun, and ran back toward the front.  Officer Moore yelled at him to stop, but appellant kept on running.  Officer Moore chased him and apprehended him two or three blocks away.  Officer Dinh stayed with the gun and took photos.   

Both Officers Moore and Dinh testified that the objective that night was to identify the people gathering at the building and to determine if any of the people lived there.  They had not observed any illegal activity when they drove past, but they wanted to investigate possible trespassing.  When Moore saw appellant drop the gun, an arrest resulted.    

The trial court concluded that there was no illegal seizure and denied appellant's motion to suppress the firearm.  A jury convicted appellant on the charge of prohibited person in possession of a firearm.

D E C I S I O N

"[W]hen reviewing a pretrial order suppressing evidence [or denying suppression] where the facts are not in dispute and the trial court's decision is a question of law, the reviewing court may independently review the facts and determine as a matter of law, whether the evidence need be suppressed."  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

Appellant argues that he was seized before the officers had reasonable, articulable suspicion that he was conducting illegal or suspicious activity.  A seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen."  In re E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quotation omitted).  No seizure occurs unless the officers "convey a message that compliance with their request is required."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (quotation omitted).

Here, there was a show of authority but no restraint of appellant's liberty when the squad cars arrived in front of the apartment building, when the officers exited their cars, and when they approached the group.  The three officers who testified explained that they appeared in numbers because previous efforts with fewer officers had only caused the group to disperse and reform.  The district court, in denying appellant's motion to suppress, stated:

When the officers attempted to approach the group of people . . . their purpose was to determine whether the individuals had a legitimate purpose for being there, whether they lived there or were guests of the residence.  This is a legitimate practice that the police perform.  Speaking to a person on the street or on the stoop is not intrusive and it does not rise to the level of a detention or a seizure. 

 

We agree with the district court, and note that the credibility of the stated objective of the officers is strengthened by the lack of any evidence that they drew their weapons or shouted orders.  Because there were no authoritarian actions by the police as they approached the people in the gathering, it is reasonable to conclude that the people were not restrained by the officers' approach.

As in State v. Houston, 654 N.W.2d 727, 732 (Minn. App. 2003), however, appellant's own actions gave the officers a reasonable basis to stop him.  In Houston, the suspect walked out of an alley with two others in a high crime area not long after a single gunshot was heard in the vicinity.  When two officers approached the three individuals, the suspect appeared nervous, walked away, looked over his shoulder, grabbed the waistband of his pants, and then ran.  In Houston, the suspicious actions and accompanying circumstances were deemed to be a reasonable basis for a stop.  Id. at 733-34.

Similarly, under the totality of the circumstances here, appellant's actions suggested wrongdoing and provided the officers with a reasonable basis for a seizure.  Appellant was in a large gathering at a location that had been the site of disturbances throughout the summer and two recent arrests.  The location was marked "no trespassing," and the appellant fled as the officers approached.  The officers in the front yelled "stop," but appellant did not stop.  When he saw Officer Moore, he turned to run in the other direction and dropped a handgun.  We agree with the district court in concluding that there was no illegal seizure under these circumstances.

Even if we assume for the sake of further analysis that the police actions prior to appellant's flight constituted an illegal seizure, we nonetheless reach the conclusion that admission of the handgun was proper.  This court has held that flight from the police is "an act of free will sufficient to purge the police illegality of its primary taint."  State v. Ingram, 570 N.W.2d 173, 179 (Minn. App. 1997).  "Headlong flightwherever it occursis the consummate act of evasion:  It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such."  Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000).  "[U]nprovoked flight is simply not a mere refusal to cooperate.  Flight, by its very nature, is not ‘going about one's business'; in fact, it is just the opposite."  Id.  Particularly here, where there is no evidence the police exploited an illegal seizure or deliberately provoked appellant into committing a new crime, see City of St. Louis Park v. Berg, 433 N.W.2d 87, 90 (Minn. 1988), the exclusionary rule does not apply. 

In summary, even if an initial show of force by police officers constituted an illegal seizure, that illegality was purged when appellant fled, abandoning his handgun.  At that point the officers had probable cause to believe appellant had committed an offense.  His arrest was proper, as was the admission of the handgun into evidence at trial.

            Affirmed.

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