This opinion will be unpublished and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,
Willie Montrelle Bryant,
Filed November 28, 2000
Affirmed in part, reversed in part, and remanded
Lyon County District Court
File No. K900109
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Richard R. Maes, Lyon County Attorney, 607 West Main Street, Marshall, MN 56258 (for appellant)
Mark D. Nyvold, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Anderson, Presiding Judge, Kalitowski, Judge, and Shumaker, Judge.
Ruling that a police officer had illegally seized respondent Willie Montrelle Bryant, the district court granted Bryant’s motions to suppress controlled substances found in his jacket and to dismiss charges of illegal drug possession and obstruction of legal process. We affirm in part, reverse in part, and remand.
On February 13, 2000, a Marshall police officer stopped a car in a convenience store parking lot for having only one headlight illuminated. The car was owned by Agnes Walker, the mother of respondent Willie Montrelle Bryant, and Bryant was riding in it as a passenger with two companions, one of whom was the driver. The officer recognized all three individuals from prior police contacts.
Bryant and the driver got out of the car, and the driver tried to repair the defective light while Bryant spoke with the officer. When the driver’s repair efforts failed, the officer told the driver to get the headlight fixed as soon as possible and said he was “free to go at that time.”
Before the driver got back into the car the officer asked him if there were any weapons or drugs in the car. The driver replied that there were not. The officer asked if he could search the car. The driver responded that he did not care but that the car belonged to Bryant. Bryant consented to a search.
With the three individuals outside the car, the officer began his search. As he did so, Bryant started “slowly walking away, kind of side-stepping as he was going to leave the area.” The officer told him to stay by the car but Bryant continued to walk slowly toward the convenience store, saying that he was going to use the telephone.
When Bryant reached the store he turned the corner and the officer could no longer see him. The officer ran to the corner of the store and saw Bryant running. The officer yelled, “stop” and then gave chase. Bryant ran into the store, removed his jacket and threw it into an office, and continued to run until he reached a closed entrance. The officer caught him and told him to turn around and put his hands behind his back. Instead of complying, Bryant ran out of the store. The officer caught him on the street and arrested him.
The officer then retrieved Bryant’s jacket and found in it cocaine, marijuana, and $180. The state charged Bryant with controlled substance crimes and obstructing legal process.
Arguing that an illegal seizure occurred when the officer ordered him not to leave the vicinity of the car while the officer searched it, Bryant moved to suppress the drugs as “fruit of the poisonous tree.” The trial court granted the motion and dismissed all charges. The state brought this pretrial appeal.
Legality of the stop
We review de novo a trial court’s determination of the legality of a limited investigatory stop. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). This court will review findings of fact for clear error and give “due weight to the inferences drawn from those facts” by the district court. State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657 (1996).
For purposes of Article 1, Section 10 of the Minnesota Constitution, which prohibits unreasonable searches and seizures, a person has been seized 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.
State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). The finding of a seizure is not dependent on actual use of force by the police or a suspect’s physical submission to a show of authority. See In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (declining to follow the Supreme Court decision in California v. Hodari, 499 U.S. 621, 111 S. Ct. 1547 (1991), that required physical force or submission to be present for determining a seizure occurred). Circumstances that may indicate a seizure include the presence of several officers, the display of a weapon, or the “use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” United States v. Mendenhall, 446 U.S. 544, 555, 100 S. Ct. 1870, 1877 (1980).
An officer must possess reasonable suspicion that criminal activity is afoot to justify a stop. See Terry v. Ohio, 392 U.S. 1, 21, 29, 88 S. Ct. 1868, 1880, 1884 (1968). The officer must point to specific, articulable facts to sustain a showing of reasonable suspicion. Cripps, 533 N.W.2d at 391. An “officer’s determination is made in light of his or her experience that criminal activity may be afoot.” State v. Ingram, 570 N.W.2d 173, 176 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997) (quotation omitted). In determining whether an investigative stop is justified, appellate courts review all the events and circumstances surrounding the stop. Britton, 604 N.W.2d at 87.
There were two stops here. The first occurred when the officer stopped the car because of the headlight defect. The second happened when the officer instructed Bryant to stay near the car while the officer searched it. When Bryant began to move away from the area, the officer made it clear that Bryant was not free to leave. We believe that a reasonable person faced with a uniformed police officer’s command not to leave the area would understand that he was not free to go. It is the second stop that is in issue, and the question is whether the officer had a reasonable suspicion of criminal activity that would justify the second stop. We hold that he did not.
After the first stop, the officer told the driver of Bryant’s car that he was free to leave. Nothing occurred immediately after that to give the officer a reasonable suspicion of criminal activity, which is a prerequisite for an additional stop. Neither Bryant nor his companions acted suspiciously. On the contrary, Bryant readily consented to the search of his car. The officer saw nothing in the car or in the possession of any of the individuals that would arouse his suspicion.
The state argues that the circumstances reveal that the officer knew Bryant and the others from prior contacts, that the traffic stop occurred after dark in a parking lot, and that the officer was alone and was unsuccessful in his efforts to call for a backup. But none of these circumstances reasonably raised suspicion of criminal activity and they all existed before the officer unequivocally released the individuals after the proper traffic stop. The state points to no additional facts that would justify the second stop.
We also reject the state’s argument that Bryant was not actually stopped until he began to run away and the officer commanded him to stop. The state suggests that, until that moment, there occurred only an attempted stop. However, it is the officer’s conduct, and not a suspect’s physical acquiescence, that determines whether a stop has occurred. See In re Welfare of E.D.J., 502 N.W.2d at 781 (holding that juvenile was seized the moment an officer ordered him to stop, not moments later when the juvenile actually acquiesced to the order).
Similarly, we reject the state’s arguments that Bryant was committing the offense of leaving the scene of a traffic stop and that the officer had to keep Bryant near the car during the search to obviate allegations of missing or damaged items. As to the first argument, the traffic stop had ended and the officer had released Bryant and the others. The second argument is unsupported by any authority. See Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971) (unsupported arguments will not be considered). We affirm the trial court’s ruling that the second stop was an illegal seizure.
The exclusionary rule prohibits the admission at trial of any evidence obtained by the police in the course of violating an accused’s constitutional rights. Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 416 (1963). The rule applies also to any evidence obtained as the fruit of any improper police conduct. Id. at 485, 83 S. Ct. at 416. Courts have held that evidence discarded by a suspect in response to an illegal stop is subject to the exclusionary rule as “fruit of the poisonous tree.” See, e.g., In re Welfare of E.D.J., 502 N.W.2d at 783 (finding that cocaine dropped after the suspect was unlawfully directed to stop inadmissible as “fruit of the poisonous tree”).
It was in response to the illegal stop that Bryant discarded his jacket. The trial court did not err in suppressing the contents of the jacket as “fruit of the poisonous tree.”
Although it was proper for the trial court to suppress the contents of Bryant’s jacket, it was error to dismiss the charge of obstructing legal process. Two rules apply. First, the application of the “fruit of the poisonous tree” doctrine to discarded objects has yielded this rule in Minnesota:
An attempt to dispose of incriminating evidence, however, is a predictable and common response to an illegal search. The proper application of the exclusionary rule requires that evidence of such an attempt be suppressed if the initial police intrusion was illegal.
State v. Balduc, 514 N.W.2d 607, 611 (Minn. App. 1994) (citation omitted). This rule establishes that the taint of the illegal seizure continues as to the contents of the jacket.
The second rule focuses not on discarded objects but rather on a suspect’s conduct in response to the illegal police procedure. Despite an initial illegality by police, evidence that a suspect responded by assaulting an officer, resisting arrest, or obstructing legal process is not suppressible. See City of St. Louis Park v. Berg, 433 N.W.2d 87, 89-90 (Minn. 1988) (holding that evidence of defendant’s resistance to arrest by officers who illegally entered his home was not suppressible). Citing State v. Bale, 267 N.W.2d 730, 732-33 (Minn. 1978), the supreme court in Berg said that suppression depends on whether the evidence sought to be suppressed arose from an exploitation of the initial police illegality. Berg, 433 N.W.2d at 90.
Specifically, the test is
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 Sun, 371 U.S. at 488, 83 S. Ct. at 417-18).
Here the officer was going to search for drugs or weapons. His illegal seizure of Bryant resulted in the discovery of illegal drugs. That discovery was a product of the illegal seizure. Accordingly, suppression was appropriate.
However, evidence of the conduct that resulted in the charge of obstructing legal process came about by means sufficiently distinguishable from the exploitative behavior. Thus, that evidence was not suppressible and the trial court erred in holding otherwise. This ruling is reversed and the matter is remanded for further proceedings on that charge.
Affirmed in part, reversed in part, and remanded.