Opinion
No. C9-02-247.
Filed December 31, 2002.
Appeal from the District Court, Hennepin County, File No. 01056406.
John Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, (for appellant)
Mike Hatch, Attorney General,; and Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, (for respondent)
Considered and decided by Anderson, Presiding Judge, Toussaint, Chief Judge, and Wright, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
This is an appeal from appellant's conviction for felon in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2000). Prior to his jury trial, appellant challenged evidence as fruit of an illegal seizure. The district court denied appellant's suppression motion. Because we hold that appellant's flight and abandonment of a firearm constituted intervening events that provided law enforcement with independent reasonable suspicion of criminal activity, we affirm appellant's conviction and conclude the district court did not abuse its discretion by denying appellant's motion to suppress.
FACTS
At approximately 10:00 p.m. on July 8, 2001, Bloomington Police Officer Michael Roepke was patrolling the Mall of America parking lots and ramps. He was uniformed and in a marked squad car parked in the fifth level of the east parking ramp, known as level P5. Roepke was talking to Christopher Jones, a mall security officer, and conducting random checks on license plates.
As a car drove by the men, Roepke checked the plate of the vehicle and learned that the registered owner, who fit the description of the driver, had a suspended driver's license. Roepke testified that the car attracted his attention because the driver and the front seat passenger (subsequently identified as appellant) were looking at him "in a nervous manner." Roepke followed the vehicle down one level to P4. Without activating his lights or siren, Roepke followed the car as it pulled into a parking spot. By the time Roepke parked his police cruiser approximately ten feet behind the suspect's car, appellant was out of the vehicle and walking toward the mall entrance.
Roepke shouted to appellant to come back to the car but there was no response. Appellant walked toward the mall's skyway entrance on the third floor and Jones followed him. As Roepke and Jones later testified, nothing on the third floor was open at that time. At 10:00 p.m., only the bars and restaurants are open and they are all located on the fourth floor where appellant's vehicle was originally parked (level P5 of the parking ramp). When Jones caught up to appellant, Jones introduced himself and told appellant that the Bloomington police officer where the car was parked wanted to talk to him. Jones's hands remained on his bicycle and he made no physical contact with appellant. Appellant began walking with Jones back through the skyway towards the parking ramp where Roepke was located. Before reaching Roepke's car, appellant suddenly took off and ran down stairwell C. Seeing this from where he was pat-searching the driver, Roepke yelled to Jones to grab appellant.
While pursuing appellant down stairwell C, Jones radioed a description of appellant to other Mall of America security guards. Another security officer, Brandon Pablo, heard the radio transmission. He started walking to stairwell C when appellant ran past him going from stairwell C toward stairwell B. Security officer Pablo, unarmed and wearing a security guard uniform, yelled at appellant to stop and talk to him. Appellant did not stop. Instead, appellant, with Pablo following him, ran down stairwell B leading from the third to the second level of the parking ramp.
When appellant reached the railing on the second level, appellant began to climb over the railing and Pablo saw him pull out a black handgun. Appellant jumped down to level one (P1), still holding the gun, and continued running towards the exit ramp. Appellant then ran to the back of the first level of the parking ramp, climbed over a railing, and again jumped, this time onto 24th Avenue.
There is some inconsistency in Pablo's testimony about whether appellant pulled the gun from his pants or his shorts, but not about appellant's possession of the firearm.
Security officers subsequently took appellant into custody at the direction of Bloomington police. Appellant did not have a gun in his possession when the officers arrested him. Pablo later went back to the area where he saw appellant jump over the railing and found a loaded magazine and a handgun in the bushes. Police unsuccessfully tested the handgun for fingerprints.
At the Rasmussen hearing on appellant's suppression motion, the district court concluded that the police did not seize appellant when Roepke told appellant to "come back" and instructed mall security to detain him. The district court concluded that appellant's flight from the police and his abandonment of the gun created independent suspicion and, therefore, denied appellant's motion to suppress the handgun.
DECISION
The main issue in this appeal is whether Bloomington police and Mall of America security unlawfully seized appellant and, if so, whether the abandoned handgun is "fruit" of that illegal search that the district court erred in refusing to suppress. Appellant admits that although reasonable suspicion likely existed as to the driver of the vehicle based on the suspended driver's license, there was no reasonable suspicion to seize him based solely on his nervousness and walking away from a police officer.
We examine the district court's decision de novo:
[w]hen 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). If the facts are not in dispute, this court must determine whether a police officer's actions constitute a seizure and if the officer articulated an adequate basis for the seizure. Id.
Roepke originally stopped the driver and appellant to investigate whether the driver was operating the motor vehicle with a suspended license. Such stops to investigate criminal activity are known as Terry stops. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Terry and its progeny allow police to lawfully stop a person when a reasonable, articulable suspicion indicates that criminal activity is afoot. See id.; In re Welfare of E.D.J., 502 N.W.2d 779, 781-82 (Minn. 1993). We conclude the motor vehicle stop was permissible under the Fourth Amendment and appellant does not argue otherwise. Rather, appellant claims that once the officer stopped the car, Roepke did not have adequate suspicion of his activities to justify seizing him.
The cases cited by the state address the propriety of stopping a car and whether an articulable suspicion of criminal activity was present. See, e.g., State v. Elvig, No. C6-00-1741 (Minn.App. Apr. 17, 2001); State v. Johnson, No. CX- 00-589 (Minn.App. Jan. 2, 2001). These cases are not applicable here because appellant concedes that reasonable suspicion existed to stop the car based on the driver's suspended license.
Not all encounters between citizens and police officers constitute seizures. E.D.J., 502 N.W.2d at 781. A police officer may seize a person if the officer has a "particular and objective basis for suspecting the particular person [seized] of criminal activity." Harris, 590 N.W.2d at 99 (quotation omitted). The officer may justify the decision to seize a person based on the totality of the circumstances and by drawing inferences and deductions that might not be obvious to an untrained person. Id. (quotation omitted). An officer's mere hunch, however, will not justify a seizure "absent other objectively reasonable articulable facts." Id. (citation omitted).
Based on these standards, law enforcement did not have a reasonable articulable suspicion that criminal behavior was afoot when Roepke first yelled to appellant as appellant walked towards the mall entrance. Mere nervousness at the sight of a police officer and walking away from a car in a parking ramp does not necessarily lead to the conclusion that appellant was engaged in illegal actions. Cf. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676 (2000) (stating that nervous and evasive behavior can be a pertinent factor in determining reasonable suspicion). Further, appellant's walking towards a closed area of the mall also does not provide articulable suspicion that he was involved in any illegal act.
We also conclude that Officer Roepke's order to appellant to stop and return to the officer's car did not constitute a Terry stop. Even if appellant heard the officer's order, and there is no evidence that he did so, appellant's freedom of movement was not restrained by means of physical force or a show of authority. See U.S. v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1877 (1980). Because we conclude that under the circumstances, a reasonable person would have believed that he was free to leave, no seizure occurred. See id. at 554, 100 S.Ct. at 1877.
Once appellant fled from the officers, though, law enforcement gained independent reasonable suspicion that appellant was engaged in criminal activity. The intervening flight permitted the officers to confront appellant lawfully and conduct a Terry stop because flight is "the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." Wardlow, 528 U.S. at 124, 120 S.Ct. at 676. Instead of fleeing, appellant could have refused to cooperate with the officers and gone about his business. Such a refusal to cooperate with law enforcement does not provide the minimum level of reasonable suspicion necessary to justify a seizure. Id. at 125, 120 S.Ct. at 676 (citation omitted). Appellant's flight, however, is the opposite of "going about one's business." Id. Instead of remaining silent in the presence of law enforcement, appellant's flight provided reasonable suspicion to the officers that criminal activity was potentially afoot. We conclude that Roepke and the mall security guards did not violate the Fourth Amendment by suspecting, after his flight, that appellant was involved in criminal activity.
Our holding is also consistent with State v. Ingram, 570 N.W.2d 173 (Minn.App. 1997), review denied (Minn. Dec. 22, 1997). In Ingram, police officers did not have reasonable suspicion to seize the defendant simply because he was talking in a lowered voice to a known drug dealer in a bus shelter. Id. at 178. The court stated that numerous explanations other than criminal activity could account for two people lowering their voices upon seeing police approach. Id. The defendant's intervening flight and assault on a police officer, however, provided the articulable suspicion needed by law enforcement to seize the defendant. Id. at 178. Similarly, appellant's flight here provided reasonable, articulable suspicion of wrongdoing.
Because we conclude appellant's flight from the police and abandonment of a gun created independent articulable suspicion, we affirm appellant's conviction and conclude the district court did not abuse its discretion by denying appellant's motion to suppress.