This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-01-1059

 

 

State of Minnesota,

Respondent,

 

vs.

 

Lincoln Terrell Freeman,

Appellant.

 

Filed November 6, 2001

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 00110923

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.


U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Lincoln Terrell Freeman challenges his conviction of felon in possession of a firearm, arguing that the police officers, who responded to a report of a large group loitering around a restaurant, did not have a reasonable, articulable suspicion to stop him after he refused to show the officers what he had in his hand.  We affirm.

FACTS

            On the evening of October 5, 2000, Minneapolis police officers Michael Potocnik and Kurt Radke responded to a disturbance call stating that 15 unwanted males were loitering around the A & J Fish and Chicken restaurant.  Potocnik testified that this area of Minneapolis experiences a high degree of narcotic offenses and weapon possession and that there had been several shootings in the area.  Potocnik also testified that he had been assigned to a murder that occurred in the rear of this restaurant just three months prior to this event.

Upon arrival, the officers observed Freeman standing outside of the restaurant.  Freeman saw the officers, made eye contact with Potocnik, turned around, and went inside the restaurant.  Just inside the door, Freeman stopped at a garbage can and lifted the lid.  Potocnik testified that he saw a silver object in Freeman's hand and, although he could not clearly see the object at that time, he thought it might be a gun or a knife.  Potocnik testified that it looked like Freeman was going to throw the silver object into the garbage can.  When Freeman saw Potocnik exit the squad car and enter the restaurant, he shut the lid to the garbage can and quickly "turned around and tucked his right hand under his chest" as he approached the restaurant counter.  Potocnik testified that at the counter Freeman "turned his right hand under and laid his left hand over the counter * * * ."  Potocnik then approached Freeman at the counter and instructed him to show him his right hand.  Potocnik testified:

At that point I kept instructing him and he wouldn't show me his right hand.  I grabbed his right arm and he began to struggle with me.  I was kind of scared he might have a gun or knife; and there were other customers in there and the owner was also in there across the counter.  So after the struggle, Officer Radke came with me and we took him to the ground and we kept yelling at him to stop resisting us and show us his right hand.  He still wouldn't.  Finally we got him on the ground and got both hands on his back and he opened up his right arm and there was a small silver revolver frame in his right hand. 

 

After discovering the revolver frame, the officers handcuffed Freeman and searched him incident to arrest.  The officers found a cylinder with five live rounds of ammunition in it and the cylinder pin for the revolver in Freeman's front jacket pocket.  It was discovered that Freeman had pleaded guilty to the felony offense of theft of a motor vehicle in February 1995.

Freeman was charged with possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (2000).  A contested omnibus hearing and a court trial on stipulated facts were held.  Freeman challenged the admissibility of the gun, arguing that it was the fruit of an illegal seizure.  The district court denied Freeman’s suppression motion, found him guilty, and sentenced him to the presumptive sentence of 60 months.  This appeal followed.


D E C I S I O N

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. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  Specifically, when the facts are not in dispute, a reviewing court must determine whether a police officer's actions constitute a seizure and if the officer articulated an adequate basis for the seizure.  See State v. Storvick, 428 N.W.2d 55, 58 n. 1 (Minn. 1988). 

 

State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  Freeman contends that his constitutional rights were violated when officers Potocnik and Radke seized him without having an articulable basis for suspecting he was involved in criminal activity.  Both the United States and Minnesota Constitutions protect against unreasonable searches and seizures by the state.  U.S. Const. amend. IV; Minn. Const. art. I, § 10. 

            Freeman contends that he was seized when the officers approached him and demanded that he open his right hand. 

Under the Minnesota Constitution, a person has been seized if in view of all 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. * * * [S]ome of the circumstances that might indicate a seizure has taken place 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.

 

Harris, 590 N.W.2d at 98 (quotations and citations omitted).  Here, two officers were present, Potocnik "instructed" Freeman to show him his right hand, and, when Freeman refused, Potocnik grabbed his right arm.  When Potocnik asked Freeman to open his right hand, this was not merely a request, but an instruction or a demand, indicating that compliance was compelled.  Potocnik acknowledged on cross-examination that he was determined to see what was in Freeman's right hand before allowing him to leave.  Under the circumstances, no reasonable person would believe that they were free to leave or end the encounter.  The actions of the police officers constituted a seizure of Freeman. 

[W]hen a person is seized, courts must suppress evidence gathered as a result of that seizure only when the seizure was unreasonable.  The brief seizure of a person for investigatory purposes is not unreasonable if an officer has a particular and objective basis for suspecting the particular person seized of criminal activity.  The officer may justify his decision to seize a person based on the totality of the circumstances and may draw inferences and deductions that might elude an untrained person.  However, a mere hunch, absent other objectively reasonable articulable facts, will not justify a seizure. 

 

Id. at 99 (quotations and citations omitted).  Freeman argues that the officers did not possess a particular and objective basis for suspecting him of criminal activity.  The Minnesota Supreme Court determined in State v. Dickerson:

[While] merely being in a high-crime area will not justify a stop, * * * defendant's evasive conduct after eye contact with police, combined with his departure from a building with a history of drug activity, justified police in reasonably suspecting criminal activity.

 

State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (citation omitted), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993).

            Also, this court has stated:

Police may stop and frisk a person when: (1) they have a reasonable, articulable suspicion that the suspect might be engaged in criminal activity; and (2) they reasonably believe the suspect might be armed and dangerous.  If both of these factors are present, police may conduct a limited search of the outer clothing of a suspect in an attempt to discover weapons that might be used to assault officers.

 

State v. Richmond, 602 N.W.2d 647, 651 (Minn. App. 1999) (citations omitted) (protective search justified by suspect's furtive movement, suspect's nervous and fidgety appearance, and suspect's inability or unwillingness to answer officer's questions during a stop), review denied (Minn. Jan. 18, 2000). 

Additionally, in State v. Alesso, 328 N.W.2d 685, 688 (Minn. 1982), a police officer "noticed that defendant was either trying to conceal or remove an object of some sort from his right pocket."  The officer "testified and the trial court found that he believed this might be a weapon."  Id.  The Minnesota Supreme Court concluded that

the officer, having lawfully approached defendant, was justified in grabbing the object if he reasonably suspected that it might be a weapon and that defendant might be dangerous. 

 

Id. (citations omitted).  Here, not only did Potocnik testify that he observed Freeman's evasive conduct but also his attempt to conceal what appeared to be a gun or knife.  We conclude that the officers articulated an adequate basis for the seizure and that the district court did not err in denying Freeman’s suppression motion.             

Affirmed.