This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Kendrick Lee Robbins,
Filed August 29, 2000
Hennepin County District Court
File No. 99031584
Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103-2106; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Davies, Presiding Judge, Amundson, Judge, and Stoneburner, Judge.
Appellant Kendrick Lee Robbins challenges his conviction for felony possession of a pistol in violation of Minn. Stat. § 624.713, subd. 1(b) (1998). He asserts the district court erred in refusing to suppress evidence of a pistol found when he was arrested. We affirm.
About 3:30 a.m. on April 2, 1999, while on routine patrol, a Minneapolis police officer observed a group of 20 to 30 people gathered in the alley behind a tippling house. The officer then heard 15 to 20 gunshots. He also noticed smoke and muzzle flashes, but was unable to see who had fired the shots. He then called for support.
One of the officers who responded was told by two women that someone had come out of the tippling house, fired a gun, and gone back into the building. Based on this information, and the earlier observation of shots being fired, the police knocked at the rear door and were admitted.
Because the officers determined that as many as 50 patrons were in the basement, they ordered the patrons to come up the stairs one at a time. When the patrons reached the main floor, each was pat-searched for weapons, then told to leave. Although most patrons complied, three officers testified that appellant attempted to race past the officers when he reached the top of the stairs. The police testified that it took about five officers to restrain him, and that they had to use a sleeper hold, mace, and handcuffs. Appellant disputes this account, stating that he did not attempt to elude officers conducting the pat-searches.
While attempting to restrain appellant, one officer felt a hard object. A second officer asked appellant if he had a gun. Appellant told the officer that he had “a nine.” Another officer then found a loaded nine-millimeter handgun and a separate magazine in appellant’s pockets. Appellant now suggests that the gun and magazine were planted by police.
At the omnibus hearing, appellant moved to suppress the gun, the magazine, and his statement about having a gun. The district court granted appellant’s motion to suppress the statement, but denied the motion to suppress the gun and magazine. The court found that the officers’ entry into the building was justified by exigent circumstances. The court also concluded that the pat-searches of appellant and the other patrons were justified by concern for police-officer safety.
This appeal follows appellant’s conviction.
Pretrial orders to suppress evidence are reviewed by independently examining the facts and determining, as a matter of law, “whether the district court erred in suppressing * * * the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citing State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992)).
Appellant claims the evidence of the gun and magazine should have been suppressed as the fruit of an illegal police search, arguing that both the police entry and the subsequent pat-search of the patrons were illegal.
Appellant also claims that the gun should be suppressed as fruit of the poisonous tree. The state responds that the police conduct was justified at each step. The state also argues that, even if there was police misconduct at some earlier point, appellant’s actions in fighting with the police and attempting to flee constituted obstructing an officer in the performance of official duties, a gross misdemeanor, and provided probable cause for arrest. See Minn. Stat. § 609.50, subds. 1(2), 2(2) (1998). Accordingly, the state claims the search was proper as a search incident to arrest.
Exigent circumstances provide an exception to the ban on warrantless searches. State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992). The state has the burden of showing that exigent circumstances exist. State v. Gray, 456 N.W.2d 251, 256 (Minn. 1990).
As to the original entry of the building, exigent circumstances existed. A police officer personally witnessed several shots being fired in a crowd of people. Discharging a weapon in that circumstance presented a grave risk to human life. Once the officers were told by two witnesses that they had seen a person who had fired a weapon run into the building, the officers had reason to be concerned, both that there might be injured victims inside and that those inside might be at risk of further injury.
Appellant asserts that, had the police truly been searching for injured people, they would have immediately entered the basement where a large group of people was located. But the physical layout of the building, the large number of people in the basement, and the limited number of officers at the scene make the officers’ method of investigation reasonable.
A pat-search for weapons is permitted without a warrant when the police reasonably believe the suspect might be engaged in criminal activity and believe he or she might be armed and dangerous. Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85 (1968). On these facts, the police reasonably suspected that appellant and other patrons might harm individuals inside the building and that they might be armed and dangerous. Accordingly, the police lawfully pat-searched appellant and the other patrons. See Terry, 392 U.S. at 30, 88 S. Ct at 1884-85 (permitting limited pat-search for weapons when both factors are present).
A warrantless search incident to arrest is also permitted. Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040 (1969). A search incident to arrest is justified by the need to remove weapons and prevent destruction of evidence. Chimel,395 U.S. at 762-63, 89 S. Ct. at 2040. A critical factor is whether there is probable cause to arrest at the time of the search. State v. Cornell, 491 N.W.2d 668, 670-71 (Minn. App. 1992). The state asserts that appellant’s action in fighting with police and attempting to flee gave them probable cause to arrest him for obstructing an officer engaged in the performance of official duties. Minn. Stat. § 609.50, subds. 1(2), 2(2). Because the officers had probable cause to arrest appellant for obstructing legal process, a gross misdemeanor, the warrantless search was lawful under the incident-to-arrest exception.
Appellant asserts that the evidence of the gun must be suppressed as the fruit of prior illegal police conduct. But even if the police had engaged in earlier conduct that might have violated appellant’s constitutional rights, appellant’s own actions constitute intervening circumstances sufficient to purge the taint of any police illegality. See State v. Ingram, 570 N.W.2d 173, 178 (Minn. App. 1997) (explaining that Minnesota courts will not suppress evidence when defendant resisted arrest and attempted to flee from police), review denied (Minn. Dec. 22, 1997).
There is some case law in Minnesota suppressing evidence obtained as a result of a search after the suspect attempted to flee police following an illegal search. See State v. Hardy, 577 N.W.2d 212, 217 (Minn. 1998) (excluding evidence of crack pellets when police misconduct occurred before and after defendant attempted to flee police officers). But Hardy is distinguishable. In Hardy, the defendant was convicted of possession of cocaine after he was found to have 13 crack pellets in his mouth when stopped by police. Id. at 214-15. The defendant attempted to flee after being ordered by police to open his mouth, but was caught, repeatedly struck with a flashlight, and maced. Id. at 215. The defendant spit out the drugs while coughing in reaction to the mace. Id.
The court suppressed the evidence, noting the primary purpose of the exclusionary rule is to deter police misconduct. Id. at 217. In Hardy, unlike the case with appellant, the alleged police misconduct was not limited to a prior illegality, but rather continued after the defendant attempted to flee. In this case, appellant does not allege police misconduct after he attempted to run from the officers.
The district court did not err in denying appellant’s motion to suppress evidence. Exigent circumstances existed to justify the officers’ original entry into the building and the pat-search of appellant was lawful because the police had reason to believe he might be armed and dangerous. A search of his person was also proper under the search-incident-to-arrest exception. Appellant’s choice to flee and to resist police investigation constitutes intervening circumstances that would purge the taint of any prior police illegality.