State of Minnesota, Respondent, vs. Lamont NMN Johnson, 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This opinion will be unpublished and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

C8-02-1826

 

State of Minnesota,

Respondent,

 

vs.

 

Lamont NMN Johnson,

Appellant.

 

Filed September 23, 2003

Affirmed Willis, Judge

 

Hennepin County District Court

File No. 02030692

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

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

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

U N P U B L I S H E D  O P I N I O N

WILLIS, Judge

            On direct appeal from his convictions of first- and second-degree controlled-substance crime, appellant challenges the district court's denial of his pretrial motion to suppress evidence.  We affirm.

FACTS

Minneapolis police arrested appellant Lamont Johnson on April 17, 2002, for possession of crack cocaine.  The state charged Johnson with one count of first-degree controlled-substance crime (possession with intent to sell), in violation of Minn. Stat. § 152.021, subd. 1(1) (2000); one count of second-degree controlled-substance crime (sale), in violation of Minn. Stat. § 152.022, subd. 1(1) (2000); and one count of second-degree controlled-substance crime (possession), in violation of Minn. Stat. § 152.022, subd. 2(1) (2000).  Johnson moved to suppress evidence of the crack cocaine as the fruit of an illegal seizure.

            At the suppression hearing, Minneapolis Police Officer Lucas Peterson, who had arrested Johnson, testified that at approximately 1:43 a.m. on April 17, he was on routine patrol in a marked squad car with his partner, Officer Mark Johnson.  Officer Johnson was driving and stopped for a red light at the intersection of Franklin Avenue and Park Avenue South.  Officer Peterson described the area as having "free-flowing narcotics all day and all night."  Officer Peterson saw two men having a conversation on the northeast corner of the intersection.  One of the men, later identified as Johnson, put out his hand, the "other party did the same, and they passed something between their hands."  Officer Peterson testified that the men did not shake hands, but appeared to exchange something, with Johnson giving and the other man receiving the unseen object.   Officer Peterson testified that he had been on the force for almost two years and that on approximately 50 occasions, he had seen similar behavior used in drug transactions.  Believing he had just witnessed a drug transaction, Officer Johnson activated the squad car's lights and drove directly toward Johnson and the other man.  Both men fled, and Officer Peterson pursued Johnson on foot.  Officer Peterson testified that he saw Johnson first throw "a handful of suspected crack cocaine to the ground" and then throw to the ground a large plastic bag, which Officer Peterson believed contained narcotics.  Johnson was eventually captured by police and arrested.  It was later determined that during the pursuit Johnson had in fact discarded a handful of crack cocaine and that the plastic bag he threw down contained crack cocaine.

            The district court denied Johnson's motion to suppress, concluding that Johnson was "seized" when Officer Johnson turned on the squad car's lights and drove toward Johnson and that the seizure was supported by reasonable suspicion.  Following a bench trial, Johnson was convicted of one count of first-degree controlled-substance crime (possession with intent to sell) and one count of second-degree controlled-substance crime (possession), with respect to the crack cocaine found in the plastic bag.  Johnson was acquitted of possession with intent to sell the handful of crack cocaine that Officer Peterson had seen him throw to the ground.  This appeal follows.

D E C I S I O N

            On appeal, Johnson argues that he was illegally seized and claims that Officer Peterson's "assumption that [Johnson] was engaged in a drug transaction . . . was not objectively reasonable" because Johnson's behavior at the intersection "was not itself incriminating."  When reviewing pretrial orders on motions to suppress evidence, this court independently reviews the facts to determine, as a matter of law, whether the district court erred by suppressing, or not suppressing, the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

            Both the federal and state constitutions prohibit unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  A police officer may make an investigative or Terry stop of a person when the officer "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot."  Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968).  In deciding whether a Terry stop is reasonable,

the totality of the circumstancesthe whole picturemust be taken into account.  Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.

 

United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981).  "A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct."  United States v. Arvizu, 534 U.S. 266, 277, 122 S. Ct. 744, 753 (2002).

            The Minnesota courts "are deferential to police officer training and experience and recognize that a trained officer can properly act on suspicion that would elude an untrained eye."  State v. Britton, 604 N.W.2d 84, 88-89 (Minn. 2000).  Innocent behavior will frequently provide the basis for a reasonable suspicion.  United States v. Sokolow, 490 U.S. 1, 10, 109 S. Ct. 1581, 1587 (1989).  The U.S. Supreme Court has explained that "in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation" and that Terry thus permits officers to detain individuals to resolve such an ambiguity.  Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 677 (2000).

            Here, Officer Peterson testified that (1) Johnson was standing in an area in which drug transactions were frequent, if not continuous; (2) Johnson appeared to exchange something with the other man; and (3) Officer Peterson had, on approximately 50 occasions, seen a similar exchange used to effect a drug transaction.  While Johnson's behavior could have been innocent, the possibility of an innocent explanation for what an officer has observed does not render an officer's suspicion unreasonable.  See id.  Thus, there is sufficient evidence for us to conclude that Officer Peterson reasonably suspected that Johnson was engaged in a drug transaction before he seized Johnson.

            Johnson argues that State v. Britton requires a reversal.  In Britton, a police officer pulled over a car with a broken window on the suspicion that the car was stolen because, in the officer's experience, thieves often break car windows to steal cars.  604 N.W.2d at 86.  Noting that "broken windows are a fact of urban life," the supreme court concluded that the officer could not have reasonably suspected that the broken window on the particular car that he stopped indicated that the car was stolen.  Id. at 88-89.  We conclude, however, that a broken car window is a more ambiguous indicator of criminal activity than is a hand-to-hand exchange frequently used in drug transactions and performed in an area where drug transactions are common.  Britton does not require a reversal, and we conclude that the district court did not err by denying Johnson's suppression motion.

            Affirmed.