State of Minnesota, Respondent, vs. Jerrol Delshan Holmes, Appellant.

This opinion will be unpublished and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

C2-02-770

 

State of Minnesota,

Respondent,

 

vs.

 

Jerrol Delshan Holmes,

Appellant.

 

Filed May 20, 2003 Affirmed Halbrooks, Judge

 

 

Hennepin County District Court

File No. 01069760

 

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

 

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

 

Michael McGlennen, 425 South 3rd Street, Minneapolis, MN 55415 (for appellant)

 

            Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Jerrol Holmes challenges his conviction of being an ineligible person in possession of a firearm, arguing that the evidence supporting his conviction was obtained in violation of the Minnesota and United States Constitutions after he was seized without a reasonable suspicion of criminal activity.  Appellant also argues that the mandatory minimum sentence required by Minn. Stat. § 609.11, subd. 8(b) (2000), is unconstitutional as applied in this case.  Because we conclude that appellant was not seized without a reasonable suspicion of criminal activity and that Minn. Stat. § 609.11, subd. 8(b), is constitutional as applied, we affirm.  

FACTS

On August 21, 2001, appellant Jerrol Holmes found a gun in the bushes while riding his bicycle in South Minneapolis.  Appellant picked up the gun, wrapped it in a small towel, and placed it in a plastic bag.[1]  Using the handles on the plastic bag, appellant then hung the bag from the handlebars of his bike.

            A short time later, at approximately 7:45 p.m., appellant and two friends were standing, straddling their bikes at the end of an alley on the south side of 24th Street.  They had stopped and were talking to two girls.  After the girls walked away, a police car that was traveling west on 24th Street drove across the lane of oncoming traffic and stopped to talk to appellant and his friends.  Minneapolis Police Officer Alan Williams was driving the police car and was accompanied by Officer Jason Reimer.  The officers did not activate the lights on their car, did not draw their weapons, and did not ask the men to approach the car. 

Officer Williams testified that he rolled down his window and asked the men some general questions, such as their names, what they were doing, and if they lived in the area.  He testified that, at this point, the men were not under arrest and were free to leave.  While talking to the men, Officer Williams noticed the plastic bag hanging from the handlebars of appellant's bike.  He testified that he could see something in the plastic bag that appeared to be the shape of a handgun.  Officer Williams asked the three men if they had any guns.  In response, the men opened their coats, lifted up their shirts, and told the officers that they were not carrying guns.  Officer Williams then asked appellant what was in the plastic bag, and appellant told Officer Williams that it contained a gun that he found in the bushes.  Officer Williams took the bag, found a handgun inside, and placed appellant under arrest.

One of appellant's friends, Michael Richardson, testified to a slightly different version of events.  According to Richardson, the officers pulled up and Officer Williams started talking to them.  During the conversation, Officer Williams asked the three men if they had any guns, and the three of them emptied their pockets and lifted up their shirts.  But Richardson testified that appellant did not tell the officers that there was a gun in the plastic bag.  Instead, he testified that the officers got out of the car and, without appellant telling them what it contained, took the bag and found the gun.

Appellant was taken to the Hennepin County Jail where he was interviewed by Sergeant Manuel Granroos of the Minneapolis Police Department.  During the interview, appellant admitted to finding the gun in the bushes, wrapping it in a towel, putting it in a plastic bag, and hanging the plastic bag from his bicycle handlebars.  The transcript of the taped interview was entered into evidence at trial. 

Appellant had several prior criminal convictions.  As a juvenile, he was convicted of possession of marijuana in 1995, burglary in the third degree in 1996, and theft of a motor vehicle in 1997.  In 1998, as an adult, appellant was convicted of being an ineligible person in possession of a firearm. 

Appellant was charged with being an ineligible person in possession of a firearm under Minn. Stat. § 624.713, subds, 1(b), 2 (2000).  Appellant's motion to suppress the gun as the fruit of an unlawful seizure in violation of the Minnesota and United States Constitutions was denied by the trial court.  Appellant waived his right to a jury trial.  After a bench trial on stipulated facts, he was found guilty.  The trial court sentenced appellant to 60 months, the mandatory minimum sentence under Minn. Stat. § 609.11, subd. 5(a) (2000).  This appeal follows.

D E C I S I O N

1.         Seizure

 

            Appellant argues that the police officers seized him without reasonable suspicion of criminal activity in violation of the Minnesota and United States Constitutions.

When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing or not suppressing the evidence.

 

State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted).

            The Fourth Amendment of the United States Constitution states:

            The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. 

 

U.S. Const. amend. IV.  The language of article I, section 10 of the Minnesota Constitution is virtually identical to the language of the Fourth Amendment of the United States Constitution. 

            The Minnesota Supreme Court has held that it may interpret the Minnesota Constitution as offering greater protection from unreasonable seizure than that provided by the United States Constitution.  Matter of Welfare of E.D.J.¸ 502 N.W.2d 779, 781 (Minn. 1993) (explaining that a state supreme court may interpret the state constitution to provide greater protection of individual rights than the federal constitution and refusing to adopt the United States Supreme Court's more restrictive definition of when a person has been seized under the Fourth Amendment).  Because the Minnesota Supreme Court has not adopted the United States Supreme Court's more restrictive definition of when a person has been seized, it follows that if appellant was not seized under the Minnesota Constitution, he was not seized under the United States Constitution.     

For there to be a violation of an individual's constitutional right to be free from unreasonable seizures, there must first be a seizure.  The Minnesota Supreme Court has held that "[n]ot all contact between citizens and police constitutes a seizure."  State v. Cripps, 533 N.W.2d 388, 390 (Minn. 1995) (citation omitted).  A seizure generally occurs "‘when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.'"  E.D.J., 502 N.W.2d at 781 (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)).  A person is seized under article I, section 10 of the Minnesota Constitution if

in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter. 

 

Cripps, 533 N.W.2d at 391 (stating that the reasonable-person standard is an objective standard that does not vary with a person's subjective state of mind).  Some examples of circumstances where a seizure may have occurred, even though a person did not attempt to leave, might include

the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

 

E.D.J., 502 N.W.2d at 781 (quotation omitted).  But, generally, the mere act of approaching a person standing on a public street and asking questions is not a seizure.  Cripps, 533 N.W.2d at 391; E.D.J., 502 N.W.2d at 782.

            Here, appellant argues that the officers seized him without a reasonable suspicion of criminal activity when they pulled over to talk to appellant and his friends.  The evidence shows that appellant and his friends were stopped at the time, straddling their bikes at the mouth of an alley.  The police car pulled across a lane of on-coming traffic, and stopped in front of the alley.  Officer Williams rolled down his window and asked the men what they were doing and if they lived in the area.  The officers did not have the vehicle's emergency lights on, did not get out of the car, did not ask the three men to approach the car, and did not prevent appellant from ending the encounter and leaving.  The officers merely approached appellant and his friends who were already stopped and standing on a public street and asked them general questions.  Cripps, 533 N.W.2d at 391 (holding that the mere act of approaching a person standing on a public street and asking that person general questions is not a seizure).  On this record, we conclude that the officers did not seize appellant when they pulled over to talk to him.

            The next question is whether Officer Williams' eventual seizure of appellant and the plastic bag was constitutional.  A police officer may temporarily seize a person if the officer reasonably suspects that person of criminal activity.  Id.  Here, Officer Williams testified that, while he was talking to the three men, he noticed a plastic bag hanging from the handlebars of appellant's bike.  The bag contained an object that appeared to be a handgun.  When Officer Williams asked the three men if they were carrying any guns, they said that they were not.  Officer Williams then asked appellant what was in the bag, and appellant told Officer Williams that there was a gun in the bag.  While Michael Richardson testified that Officer Williams got out of the car and seized the bag without appellant stating that it contained a gun, the trial court's findings credit Officer Williams' testimony. 

On appeal, we defer to the trial court's determination of witness credibility.  See State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998) (stating that it is the exclusive role of the fact-finder to determine the weight and credibility of witness testimony).  Because Officer Williams saw the shape of a handgun in appellant's plastic bag and appellant admitted that he had a handgun in the bag, we conclude that Officer Williams had a reasonable suspicion of criminal activity and was justified in seizing appellant and the plastic bag to conduct an investigatory search.  

 

2.         Mandatory Minimum Sentence

 

            Appellant contends that the mandatory minimum sentence required by Minn. Stat. § 609.11, subd. 8(b) (2000), is unconstitutional as applied to him because the punishment does not fit the crime.  Appellant also argues that the statute violates the separation-of-powers doctrine.  This court reviews constitutional challenges to statutes de novo.  State v. Behl, 564 N.W.2d 560, 566 (Minn. 1997).

 

            A.        Cruel or Unusual Punishment

 

Generally, a statute is presumed to be constitutional, and a person challenging a sentence as cruel and unusual faces the heavy burden of demonstrating that our culture and laws emphatically and universally reject the sentence.  State v. Chambers, 589 N.W.2d 466, 479 (Minn. 1999). 

            Minn. Stat. § 609.11, subd. 5(a) (2000), states, in relevant part:

Any defendant convicted of a second or subsequent offense in which the defendant or an accomplice, at the time of the offense, had in possession or used a firearm shall be committed to the commissioner of corrections for not less than five years, nor more than the maximum sentence provided by law.  

 

In addition, Minn. Stat. § 609.11, subd. 8(b), states:

 

            The court may not, on its own motion or the prosecutor's motion, sentence a defendant without regard to the mandatory minimum sentences established by this section if the defendant previously has been convicted of an offense listed in subdivision 9 in which the defendant used or possessed a firearm or other dangerous weapon. 

 

Appellant's 1998 conviction of being a prohibited person in possession of a firearm is one of the offenses listed in Minn. Stat. § 609.11, subd. 9 (2000).  Therefore, as the trial court concluded, appellant was subject to a mandatory minimum sentence of 60 months. 

            Article I, section 5 of the Minnesota Constitution prohibits punishments that are cruel or unusual.  In determining whether a punishment is cruel or unusual, this court focuses on "the proportionality of the crime to the punishment."  State v. Mitchell, 577 N.W.2d 481, 489 (Minn. 1998).  We also must determine whether the punishment is in accord with "the evolving standards of decency that mark the progress of a maturing society."  Id. (quotation omitted).  We look to the standards expressed by the legislature, because it is the legislature that is constituted to respond to the will and moral values of the people.  Chambers, 589 N.W.2d at 480.   

            A person is subject to a mandatory minimum sentence of 36 months for being convicted of certain specified offenses while possessing a firearm.  Minn. Stat. § 609.11, subd. 5(a).  But the prosecutor or the court may move to have the person sentenced without regard to the mandatory minimum sentence if there are substantial and compelling reasons to do so.  Minn. Stat. § 609.11, subd. 8(a) (2000).  The legislature has determined that subsequent offenses committed while possessing a firearm warrant a harsher penalty.  A repeat offender is subject to a mandatory minimum sentence of 60 months, and the legislature specifically provided that neither the prosecutor nor the court has the discretion to move to disregard the mandatory minimum sentence.  Minn. Stat. § 609.11, subds. 5(a), 8(b).

            Crimes involving handguns and other firearms have become a significant public-safety issue in this state and the rest of the country.  The Minnesota legislature, mirroring the will and values of the citizens of Minnesota, has determined that persons involved in multiple firearm-related offenses constitute a great danger to society and that they should be subject to strict, mandatory punishments.  In Minnesota, there are other crimes that call for mandatory minimum sentences.  See, e.g., Minn. Stat. § 609.185 (mandating a life sentence for a conviction of murder in the first degree), .109, subds. 3, 4 (2002) (mandating a 30-year sentence or a life sentence under certain circumstances for repeat sex offenders).  Under the circumstances, appellant has not met the heavy burden of demonstrating that a mandatory minimum 60-month sentence is a disproportionate punishment for a second conviction of being an ineligible person in possession of a firearm.  Appellant also has not demonstrated that the punishment imposed in this case is unusual or that the punishment is not in accord with the evolving standards of decency that mark the progress of a maturing society.  We conclude that appellant's sentence is not cruel or unusual. 

 

            B.        Separation of Powers

 

            Appellant next argues that Minn. Stat. § 609.11, subd. 8(b), is unconstitutional because it violates the separation-of-powers doctrine.  Appellant asserts that the legislature has taken a power that was originally vested in the judiciary by the Minnesota Constitution by dictating the sentence that must be imposed on a defendant regardless of the circumstances.

            Because the legislature is equipped to deal with the policy concerns necessary to determine what sanctions serve the interests of the people, the severity of criminal sanctions is a legislative concern.  Mitchell, 577 N.W.2d at 488.  While the imposition of a sentence that is within the limits prescribed by the legislature is a judicial function, it is within the legislature's power to define the sentencing limits.  State v. Olson, 325 N.W.2d 13, 18 (Minn. 1982).  Accordingly, the legislature may authorize the courts to exercise broad discretion in sentencing and "may restrict the exercise of judicial discretion in sentencing, such as by providing for mandatory sentences."  Id.  Further, this court has specifically held that "the legislature has mandated that courts have no discretion to depart from minimum sentences under those circumstances described in section 609.11, subd. 8(b)."  State v. Sheppard, 587 N.W.2d 53, 56 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999).  

            It is clear that the legislature has the power to prescribe criminal penalties even penalties that leave a trial court with no discretion to impose a less severe sentence.  Therefore, even though Minn. Stat. § 609.11, subd. 8(b), dictates the minimum sentence that the court must impose regardless of the circumstances, the statute does not violate the separation-of-powers doctrine. 

            Affirmed.

 

[1] Minneapolis Police Officer Alan Williams testified that the plastic bag was a "see-through plastic bag," and stated in his report that it was a clear plastic bag.  But during cross-examination, he testified that the plastic bag was "[n]ot totally clear."  The trial court described the bag as a "plastic white bag" in its November 16, 2001 findings and order.