This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2010).
STATE OF MINNESOTA
IN COURT OF APPEALS
A11-836
State of Minnesota,
Respondent,
vs.
Lavell Edward Lovelady,
Appellant.
Filed March 19, 2012
Affirmed
Randall, Judgeïª
Hennepin County District Court
27-CR-10-32986
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant
County Attorney, Minneapolis, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Jodie L. Carlson, Assistant Public
Defender, St. Paul, Minnesota; and
Matthew R. Brodin, Special Assistant State Public Defender, Minneapolis, Minnesota
(for appellant)
Considered and decided by Connolly, Presiding Judge; Johnson, Chief Judge; and
Randall, Judge.
ïª
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
RANDALL, Judge
On appeal from his conviction of prohibited person in possession of a firearm,
appellant challenges the district courtâs denial of his motion to suppress evidence
obtained as a result of a stop. We affirm.
FACTS
The state charged appellant Lavell Edward Lovelady with felony prohibited
person in possession of a firearm, in violation of Minn. Stat. §§ 624.713, subds. 1(2),
2(b), 609.11 (2008). Appellant filed a motion to suppress the evidence obtained as a
result of the stop.
At the evidentiary hearing on appellantâs motion, Minneapolis Police Officer
Christopher Cushenbery testified that at about 1:15 in the morning he and his partner
received a report from dispatch of shots fired in the area of Lake Street and Portland
Avenue. They responded to the report and arrived in the area within minutes. When they
arrived, an ambulance was parked on the corner of Fifth Avenue and Lake Street, near a
victim who had been shot in the foot. Officer Cushenbery and his partner used their
squad car to block westbound traffic. Many other police officers also responded to the
report. Officer Cushenbery testified that there were people in the area when he arrived,
but it was not very busy. He testified that a caller, who provided his name and phone
number, reported that he had seen a black male wearing a blue shirt and blue jean shorts
running in an alley near the crime scene. The same caller also reported that he saw two
black males in a garden area north of Lake Street.
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When Officer Cushenbery received the information about the possible suspect, he
jogged across a parking lot and jumped a fence to reach an alley between Fifth Avenue
and Portland Avenue. He testified that he was in the southeast corner of the alley, along
the fence line, when he saw two males walk around the corner about 50 feet away from
him. He explained that: âThey came up around this white house, right up here inside the
garden [indicating]. So we were right here and they kind of walked up in the corner,
right up in here [indicating].â Officer Cushenbery stated that â[w]e were looking for
guys with guns, and there were two guys walking around the corner. So we wanted to
talk to them.â
He testified that the two people saw him, stopped, and then âran
northbound on the east side of the street.â Officer Cushenbery testified that he said
âcome here!â before they started running. He yelled at them to stop, but they continued
to run away and he chased after them.
Officer Cushenbery testified that he could tell that one person, who was later
identified as appellant, was male, but the other person was smaller and he could not tell if
the person was male or female. He stated that it was dark, but he mentally compared
what the individuals were wearing to the description of the suspect that he had received.
He testified that:
We have it all the time where somebody will say it was a
male with a black shirt or a blue shirt, but a lot [of] times the
lighting is not good and so they donât accurately see it. Itâs a
different case if you see somebody with a red shirt, you know,
compared to aâhe didnât explain that it was a dark blue shirt
or a light blue shirt.
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Officer Cushenbery testified that appellant was wearing a black t-shirt and blue jeans at
the time of his arrest.
Officer Cushenbery commanded appellant and the other person to stop as he
chased them. The officer testified that he was concerned that appellant was holding some
type of weapon because appellant was holding up the front of his pants as he ran. Officer
Cushenbery caught up to appellant after he started to lose his shoes and stumbled, and he
jumped on top of appellant. Officer Cushenbery pinned appellant to the ground and then
punched appellant because appellant did not comply with the officerâs commands to get
both of his hands behind his back and the officer was concerned that appellant had a
weapon. After Officer Cushenbery handcuffed appellant, he called for an ambulance
because appellant was bleeding.
When he picked appellant up to walk him to the
ambulance, a gun fell out of appellantâs pant leg. Officer Cushenbery testified that he
apprehended appellant âwithin a half blockâ of where the shooting victim was found,
about 20 minutes after he received the report that shots were fired.
The district court denied appellantâs motion to suppress evidence. The district
court concluded that appellant was stopped when Officer Cushenbery told him to âcome
here!â but concluded that, â[r]egardless of discrepancies in the general clothing
description, the totality of the circumstances, taken together with rational inferences,
provided Officer Cushenbery with a reasonable articulable suspicion warranting his
attempt to conduct a brief investigatory stop of [appellant].â The district court based its
conclusion on the following findings: (1) the police officers had âa particular description
of the time and location of a shootingâ based on the âshotspotterâ system and 911 calls;
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(2) a 911 caller gave a physical description of a possible suspect and the location where
the caller saw the suspect running; (3) Officer Cushenbery was familiar with the area,
which he referred to as âa âhigh crime area,ââ and he searched the location that the 911
caller described; (4) there were few people in the area; (5) Officer Cushenbery saw two
black males âwearing dark clothing and jeansâ in the area described by the 911 caller;
and (6) the two males âimmediately turned and walked [in] a different directionâ when
they saw Officer Cushenbery.
A jury found appellant guilty of prohibited person in possession of a firearm, and
the district court sentenced him to 60 months in prison. This appeal follows.
DECISION
âWhen reviewing pretrial orders on motions to suppress evidence, we review the
facts to determine whether, as a matter of law, the court erred when it failed to suppress
the evidence.â State v. Flowers, 734 N.W.2d 239, 247 (Minn. 2007). An appellate court
reviews a district courtâs findings of fact for clear error, but reviews its legal
determinations de novo. State v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009).
Both the United States and Minnesota Constitutions protect against unreasonable
searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A police officer
may âconduct a brief, investigatory stop when the officer has a reasonable, articulable
suspicion that criminal activity is afoot.â State v. Timberlake, 744 N.W.2d 390, 393
(Minn. 2008) (quotation omitted). âReasonable suspicion must be based on specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.â State v. Davis, 732 N.W.2d 173, 182 (Minn. 2007)
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(quotation omitted). The standard for reasonable suspicion is âless demanding than
probable cause or a preponderance of the evidence,â but it does require âa minimal level
of objective justification for making the stop.â
Timberlake, 744 N.W.2d at 393
(quotation omitted). The seizure may not be the product of âmere whim, caprice or idle
curiosity.â State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996).
The reviewing court considers the totality of the circumstances surrounding a stop,
taking into account the officerâs law-enforcement experience. State v. Wiggins, 788
N.W.2d 509, 513 (Minn. App. 2010). The following factors may be considered when
determining the validity of an investigatory stop near the scene of a recent crime:
(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.
Appelgate v. Commâr of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987).
Appellant argues that the totality of the circumstances did not give Officer
Cushenbery reasonable suspicion for the stop and seizure. Appellant argues that he did
not fit the description of the suspect, other than being a black male, and that a significant
amount of time passed between the time of the shooting and when Officer Cushenbery
saw him in the alley. Based on the totality of the circumstances, we disagree. While
appellant did not meet the exact description of the suspect because he was wearing a
black t-shirt and blue jeans, Officer Cushenbery first saw appellant when it was dark
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outside. As he noted, the witness âdidnât explain that it was a dark blue shirt or a light
blue shirt,â and in the dark a blue shirt and a black shirt look very similar. Further, as the
district court noted, because the witness gave a description at night, the police officer
could âmake a rational inference as to the general color and nature of clothing the suspect
may have been wearing.â It was reasonable for Officer Cushenbery to take into account
that a witnessâs description of a suspect is not always correct, especially when the witness
observes the suspect when it is dark outside. In addition, Officer Cushenbery testified
that he apprehended appellant about 20 minutes after he received the report that shots
were fired and about half a block from where the shooting victim was found. While the
suspect certainly could have traveled further away from the crime scene in 20 minutes if
he chose, it is also possible that he remained in the immediate area. The hard evidence
supporting probable cause is not overwhelming. The factors considered do support the
district courtâs conclusion that the totality of the circumstances gave Officer Cushenbery
âarticulable suspicion of criminal activityââenough to stop appellant.
Appellant contends that he was not acting suspiciously before he was stopped but
was simply walking down an alley. He argues that the district court clearly erred when it
concluded that he âimmediately turned and walked [in] a different directionâ when he
saw Officer Cushenbery. In response, the state argues that the district courtâs conclusion
is supported by Officer Cushenberyâs testimony because he indicated on a map that
appellant changed direction.
Officer Cushenbery testified that appellant stopped walking as soon as he saw
him. He testified that he then shouted to appellant to âcome here!â before appellant ran
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away. In addition, the record establishes that Officer Cushenbery indicated on a map
during his testimony the direction that appellant was walking. Officer Cushenbery did
not testify that appellant changed direction before he told appellant to âcome here!â
While the record does not support the district courtâs finding that appellant engaged in
âevasive behavior,â we conclude that, considering the totality of the circumstances,
Officer Cushenbery had a reasonable, articulable suspicion to conduct an investigatory
stop of appellant. The district court properly denied appellantâs motion to suppress
evidence.
Affirmed.
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