State of Minnesota, Appellant, vs. Marc Alan Sundberg, Respondent.

State of Minnesota, Appellant, vs. Marc Alan Sundberg, Respondent. A07-1098, Court of Appeals Unpublished Decision, December 4, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-1098

 

State of Minnesota,
Appellant,
 
vs.
 
Marc Alan Sundberg,
Respondent.

 

Filed December 4, 2007

Affirmed in part, reversed in part, and remanded

Willis, Judge

 

Sherburne County District Court

File No. 71-CV-07-109

 

 

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

 

Kathleen A. Heaney, Sherburne County Attorney, Sean C. Dillon, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN  55330-4601 (for appellant)

 

Bradford S. Delapena, Special Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Minge, Judge. 

 

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant State of Minnesota challenges a pretrial order suppressing identification evidence and dismissing charges against respondent of attempted third-degree burglary, Minn. Stat. §§ 609.582, subd. 3, 609.17, subd. 1 (2006); and first-degree criminal damage to property, Minn. Stat. § 609.595, subd. 1(3) (2006).  The state argues that the district erred by determining that (1) the police lacked a reasonable, articulable suspicion to support an investigative stop of respondent's car and (2) the procedure used to identify respondent was unnecessarily suggestive and the witness lacked an independently reliable basis for the identification.  Because we conclude that the investigative stop was supported by a reasonable, articulable suspicion of criminal activity, but that the identification procedure was unnecessarily suggestive and the identification was not supported by an independently reliable basis, we affirm in part, reverse in part, and remand.

FACTS

At approximately 12:30 a.m. on January 8, 2007, police responded to a reported burglary at Casey's General Store in Big Lake.  The report came from a witness, S.H., who was driving near Casey's when he heard the store's alarm.  S.H. saw two people running from the store in a northwesterly direction; he called the police and provided a description of the suspects as two young, white males wearing winter jackets and caps.

            A K-9 unit responded to the scene, and the dog detected a track heading north along Powell Street away from the store.  Approximately 25 to 30 minutes after the first dispatch, Deputy Ryan Sturm of the Sherburne County Sheriff's Department was in his squad car, on Powell Street, five blocks north of the store.  Sturm saw a car traveling south on Powell and noticed that the car's occupants, respondent Marc Alan Sundberg and another person, appeared to match the description provided by S.H.  Sturm eventually stopped the car, detained Sundberg and his companion, and had them transported in separate police vehicles to the scene of the crime for a show-up identification, at which S.H. identified both Sundberg and his companion as the persons he had seen running from Casey's General Store.  Sundberg was charged with attempted third-degree burglary, Minn. Stat. §§ 609.582, subd. 3; 609.17, subd. 1 (2006), and first-degree criminal damage to property, Minn. Stat. § 609.595, subd. 1(3) (2006).

After a contested omnibus hearing, the district court concluded that the initial stop of Sundberg's car was not supported by a reasonable, articulable suspicion of criminal activity and was thus invalid.  The district court further concluded that the identification procedure used by the police was unnecessarily suggestive and that S.H. lacked an independently reliable basis to identify Sundberg.  Accordingly, the district court granted Sundberg's motions to suppress the identification evidence and dismiss the charges.  The state appeals.

D E C I S I O N

 

When the state appeals from a pretrial suppression order, it "must clearly and unequivocally show both that the trial court's order will have a ‘critical impact' on the state's ability to prosecute the defendant successfully and that the order constituted error."  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)).  If critical impact is established, this court then independently reviews the facts and determines, as a matter of law, whether the district court erred in its ruling.  State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006).  The district court's factual findings are reviewed under the clearly erroneous standard, but we review the district court's legal determinations de novo.  Id.

The parties agree that the order suppressing the identification evidence and dismissing the charges in this case had a critical impact on the state's ability to prosecute Sundberg.

I.         There was a sufficient basis for the investigative stop of Sundberg's vehicle.

 

The state first contends that the district court erred by concluding that Deputy Sturm did not have a reasonable, articulable suspicion of criminal activity sufficient to support an investigative stop of Sundberg's vehicle.

A police officer may stop and briefly detain a person if the officer has a reasonable, articulable suspicion that the person is involved in criminal activity.  Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968).  Reasonable, articulable suspicion exists "when the police can ‘point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'"  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000) (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880).  But the stop cannot be "the product of mere whim, caprice, or idle curiosity."  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996).

When reviewing the stop of a motor vehicle in the vicinity of a recent crime, Minnesota courts apply a six-factor analysis to determine whether the stop was justified: (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 people present in the area; (4) the known or probable direction of the offender's flight; (5) observed activity of 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.  Appelgate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987).  In analyzing these factors, "the court should consider the totality of the circumstances and should remember that trained law-enforcement officers are permitted to make ‘inferences and deductions that might well elude an untrained person.'"  State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)).  And if a "driver's conduct is such that the officer reasonably infers that the driver is deliberately trying to evade the officer and if, as a result, a reasonable police officer would suspect the driver of criminal activity, then the officer may stop the driver."  State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989).

Sturm testified that he inferred that Sundberg was deliberately trying to evade the police based on the following: (1) when Sturm first saw Sundberg's car it was parked in a driveway with its lights out, but pulled onto Powell Street immediately after another police vehicle passed it; (2) at the point at which Sturm assumed that Sundberg had noticed his squad car, he saw Sundberg's car make a sudden right turn; and (3) after Sturm began following the car, the driver parked in a convenience-store parking lot, approached the store and began to enter it, while focusing his attention on Sturm's squad car, and then ran back toward his car when Sturm drove out of the lot.  Based on these facts, we conclude that Strum's inference that Sundberg was deliberately trying to evade the police was reasonable.  This inference, in conjunction with the facts that Sundberg and his companion matched the general description of the suspects and were first seen a few blocks away from Casey's General Store along the offenders' suspected route of flight, led Sturm to suspect that Sundberg and his companion had been involved in the attempted burglary.  We conclude that Sturm's suspicion was reasonable, was based on articulable facts, and was sufficient to satisfy the "very low" threshold for justifying an investigative stop of a motor vehicle.  State v. DeRose, 365 N.W.2d 284, 286 (Minn. App. 1985).  Accordingly, we reverse the district court's ruling regarding the legality of the stop.

II.        The show-up identification procedure was unnecessarily suggestive, and the witness lacked an independently reliable basis for the identification.

 

            The state also claims that the district court erred by determining that the show-up procedure used to identify Sundberg was unnecessarily suggestive and that the witness lacked an independently reliable basis for the identification. 

A.        The identification procedure was unnecessarily suggestive.

An out-of-court identification may be suppressed if the procedure used to produce the identification was unnecessarily suggestive.  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995) (citing Manson v. Brathwaite, 432 U.S. 98, 104, 97 S. Ct. 2243, 2247-48 (1977)).  If "the procedure used by the police influenced the witness['s] identification of the defendant," it is unnecessarily suggestive.  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).  Although a one-person show-up is inherently suggestive, it is not per se unnecessarily suggestive.  Id. at 162.  In delineating this distinction, the "reliability [of the identification] is the linchpin."  Manson, 432 U.S. at 114, 97 S. Ct. at 2253; accord Taylor,594 N.W.2d at 161 (stating that "the reliability of the identification is critical").

The supreme court has warned, in dictum, that if "the police single[] [an individual] out from the general population based on a description given to them by a victim, and then proceeded to present him to the victim, in handcuffs, for identification in a one-person show-up," the procedure is "unnecessarily suggestive because of the potential for the show-up procedure, by itself, to influence the identification."  Taylor, 594 N.W.2d at 162. And we have held that if an officer's instructions to an eyewitness suggest that the suspect is guilty, the reliability of the resulting identification is tainted.  State v. Anderson, 657 N.W.2d 846, 851 (Minn. App. 2002).

Here, circumstances similar to those warned against in Taylor were present:  police brought Sundberg to the scene of the crime in a squad car and presented him to S.H. for a one-person show-up by placing him at the front of the car while shining a spotlight in his face.  And the district court found that the police gave suggestive instructions to S.H. before the show-up, stating that they had "caught" Sundberg and that he was "currently being detained," which further tainted the procedure.  See Anderson, 657 N.W.2d at 851 ("Rather than simply asking the eyewitness whether he could identify anyone, [the officer]'s statements suggested to the eyewitness that the police actually had one of the burglars in custody.").  The state contends that this finding was clearly erroneous.  A finding is not clearly erroneous if it is supported by reasonable evidence.  Sykes v. State, 578 N.W.2d 807, 812 (Minn. App. 1998), review denied (Minn. July 16, 1998).  The record shows that, at the suppression hearing, neither S.H. nor Pearson could recall the exact instructions given to S.H. before the show-up.  But in a recorded interview with S.H. taken immediately after the show-up, Pearson stated, in reference to the earlier instructions, "I had told you that we had a couple of people that we caught a short distance away and I wanted to know if you could identify them."  The district court's finding is supported by reasonable evidence and was not clearly erroneous. 

Given the totality of these circumstances, the district court did not err by concluding that the identification procedure was unnecessarily suggestive.

B.        The witness lacked an independently reliable basis for the identification.

 

            The state's final claim is that the district court erred by concluding that S.H. did not have an independently reliable basis for his identification of Sundberg. 

If an identification procedure is found to be unnecessarily suggestive, a court examines the totality of the circumstances to determine if the witness had an independently reliable basis for the identification.  Taylor, 594 N.W.2d at 161.  If so, the evidence is considered reliable, and admissible, despite the suggestive procedure.  Id.

In evaluating whether a witness had an independently reliable basis for an identification, Minnesota courts use a five-factor analysis: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the identification procedure; and (5) the time between the crime and the confrontation.  Ostrem, 535 N.W.2d at 921.

Here, S.H. was driving in his car after dark when he heard the sound of an alarm and saw two people running away from Casey's General Store.  He saw them from behind, at a distance of 60 to 70 feet, heading away from his location.  Although he watched them for a total of 30 to 40 seconds, they were in illuminated areas for only ten to 15 seconds and at one point a fence obstructed S.H.'s view.  He did not see their faces.  His description of two young males in hats, winter jackets, and tennis shoes was not particularly detailed or unique, given the time of year.  Also, he testified that he concluded that they were young and male based only on the speed at which they ran, not on any observation of physical features.  Although the show-up occurred relatively soon after the crime and S.H. testified that Sundberg appeared to be "standing heavier on one foot, favoring the other," and that one of the people he had seen running from the store had a limp, S.H.'s overall ability to observe the individuals and to note any distinct characteristics was very limited.  Under these circumstances, we conclude that the district court did not err in ruling that the show-up identification of Sundberg did not have an independently reliable basis sufficient to overcome the unnecessarily suggestive procedure.

            Because we conclude that the initial stop of Sundberg's car was supported by a reasonable, articulable suspicion of criminal activity, we reverse the portion of the district court's order dismissing the charges against Sundberg and remand for further proceedings.  We affirm the portion of the district court's order suppressing the identification evidence obtained as a result of the unnecessarily suggestive show-up procedure.

            Affirmed in part, reversed in part, and remanded.