La Crescent Concrete, Inc., d/b/a Croell Redi-Mix, Appellant, vs. Reliance National Indemnity Co., Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-264

 

State of Minnesota,
Respondent,
 
vs.
 
Donald E. Bradley,
Appellant.

 

Filed December 5, 2000

Reversed

Stoneburner, Judge

 

Hennepin County District Court

File No. 99064567

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

 

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

 

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Stoneburner, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant Donald E. Bradley appeals the district court's denial of his motion to suppress a gun as fruit of an illegal stop.  Because we find that Bradley's act of throwing away a gun while he was in flight was an abandonment of incriminating evidence resulting from an illegal stop, we reverse. D E C I S I O N

 

The district court found, and the parties do not dispute, that on July 2, 1999 Officers James Harder and Anthony Olsen illegally stopped appellant Donald E. Bradley at about 12:20 a.m. in a high-crime area of Minneapolis.  The officers asked Bradley if he had any drugs, then asked him to pull out his pants pockets and to unfold a ten-dollar bill, which fell out of his pocket.  When asked to open his mouth and raise his shirt, Bradley ran away from the officers.  As Officer Harder pursued Bradley on foot, he saw Bradley throw a handgun into a yard, after which Bradley surrendered by lying on the ground a few blocks away.  Bradley appeals the district court's refusal to suppress the gun as fruit of the illegal stop.

On review of motions to suppress evidence, when the facts are not in dispute, we independently review the facts and determine, as a matter of law, whether the district court erred in its decision.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  In determining whether to exclude evidence as fruit of an illegal stop, we inquire:

 

whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

 

State v. Doughty, 472 N.W.2d 299, 305 (Minn. 1991) (quoting Wong Sung v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417 (1962)). 

            Resisting arrest and flight from a police officer, even if prompted by an illegal police stop, generally constitute intervening circumstances that are sufficient to purge the initial illegality of its primary taint.  State v. Ingram, 570 N.W.2d 173, 178 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997); see City of St. Louis Park v. Berg, 433 N.W.2d 87, 90 (Minn. 1988) (holding that evidence of defendant's resistance to arrest may not be excluded as fruit of the poisonous tree).  Resisting arrest and flight from a police officer are different from situations in which the defendant flees to abandon illicit contraband.  Ingram, 570 N.W.2d at 178..  "An attempt to dispose of incriminating evidence * * * is a predictable and common response to an illegal search."  State v. Balduc, 514 N.W.2d 607, 611 (Minn. App. 1994) (citation omitted).  "Evidence abandoned as a result of an illegal search or seizure constitutes the fruit of the search."  State v. Hardy, 577 N.W.2d 212, 217 (Minn. 1998) (citing Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993)); see Welfare of M.D.B., 601 N.W.2d 214, 218 (Minn. App. 1999); see also State v. Dineen, 296 N.W.2d 421, 422 (Minn. 1980) (finding where officer did not have probable cause to search defendant, contraband abandoned in defendant's car as a result of the search was properly suppressed).  If the defendant abandoned evidence because of an illegal police seizure, the evidence has not been come at independent of the primary taint.

            In E.D.J., the defendant was walking down the street with two adults when police pulled up behind them and ordered them to stop.  502 N.W.2d at 780.  The defendant took about five steps, dropped some cocaine on the ground, took two more steps, and then stopped.  Id.  The court found that the defendant abandoned the cocaine after he was unlawfully seized, and the abandonment of the cocaine was the suppressible fruit of the illegality.  Id. at 783.  Similarly in this case, Bradley fled from the illegal stop, threw the gun into a yard, ran a little farther, and surrendered by lying on the ground.  Bradley's flight in order to throw away the gun constitutes abandonment of evidence as the result of the illegal stop. 

            The state relies on Ingram for the proposition that flight and abandonment of the gun were independent acts sufficient to purge the taint of the illegal stop.  570 N.W.2d at 179 (finding Ingram's resistance to arrest and flight acts of free will).  In Ingram, however, the defendant first brushed the police officer out of the way, committing the additional act of resisting arrest before he fled.  Id. at 175.  Also, Ingram did not abandon evidence during his flight.  Id.  Instead, Ingram voluntarily revealed that he was carrying a gun when he was finally apprehended.  Id.  The intervening crimes of resisting arrest and flight were not connected to the abandonment of evidence.  See id. (noting "at no time did [the police] see Ingram drop, abandon, or attempt to conceal anything").  In the instant case, abandonment of the incriminating evidence is a predictable consequence of the illegal stop.  The district court erred in failing to suppress the gun as fruit of the illegal stop.

Reversed and remanded.