This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Joseph Jermaine Henderson,
Hennepin County District Court
File No. 00101595
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Caroline Durham, 425 South Third Street, Minneapolis, MN 55415 (for appellant)
Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Anderson, Judge.
Appellant challenges the trial court’s denial of his motion to suppress the evidence obtained from a stop that appellant believes was unwarranted. Because we find that the officers effectuated a seizure and lacked reasonable, articulable suspicion supporting the stop, we reverse.
In the afternoon of October 23, 2000, appellant Joseph Henderson was walking north on Park Avenue near 19th Street, a high-crime area of south Minneapolis. Driving east on 19th Street in their marked squad car, Officers Todd Harder and Steve Moore saw appellant and thought he looked “nervous.” After initially driving past the intersection, the officers turned their car around and headed back, driving west on 19th Street.
The officers also noticed an individual, believed to be a known crack user, walking several feet ahead of appellant. Due to their proximity, Officer Harder believed appellant was “probably a drug dealer,” although the officers observed no communication between appellant and the individual believed to be a crack user. Pulling alongside appellant, the officers asked to speak with him. Appellant walked over to the squad car and proceeded to answer the officers’ questions while they remained seated in the squad car.
The officers asked appellant if he had any drugs or guns on his person. After he replied that he did not, one officer asked him to lift up his jacket for a visual inspection. When appellant lifted his jacket above his waistline, the officers saw the handle of a gun. Officer Harder immediately got out of the squad car and arrested appellant. He then searched appellant and found what he suspected to be crack cocaine in appellant’s right front coat pocket.
At a contested Rasmussen hearing, when Officer Harder was asked if appellant would have been free to go if he refused to talk to the officers, Harder said that they “probably would have left him alone.” But initially, the officer testified that he did not know if he and Officer Moore would have driven away if appellant had refused to talk to them.
Finding that the officers’ conduct did not constitute a seizure of appellant under the Fourth Amendment, the trial court denied appellant’s motion to suppress evidence leading to his conviction for fifth-degree controlled substance crime and for illegal possession of a firearm. This appeal followed.
When reviewing pretrial orders on motions to suppress evidence, appellate courts may independently review the facts and determine, as a matter of law, whether the trial 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 (1) whether a police officer’s actions constitute a seizure; and (2) if so, whether the officer articulated an adequate basis for the seizure. State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988).
Here, the facts are not in dispute. The first issue is whether the police officers seized appellant when they pulled alongside him and summoned him to the squad car. The state argues that the contact between appellant and the police officers did not rise to the level of a seizure, or, alternatively, that the officers had reasonable, articulable suspicion to seize appellant.
Not all encounters between the police and citizens constitute seizures. In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993). “A person generally is not seized merely because a police officer approaches him in a public place or in a parked car and begins to ask questions.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citations omitted). Moreover, seizure does not result when a person, due to “moral or instinctive pressure to cooperate,” complies with a request to search because the other party to the encounter is a police officer. Id. at 99 (quoting Wayne R. LaFave, “Seizures” Topology: Classifying Detentions of the Person to Resolve Warrant, Grounds, and Search Issues, 17 U. Mich. J.L. Ref. 417, 424-25 (1984) (footnotes omitted)).
Seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (citing Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S. Ct. 1868, 1879 n.16 (1968)). The key is whether, when police officers ask questions of an individual or request consent to a search, they “convey a message that compliance with their request is required.” Harris, 590 N.W.2d at 98 (quoting Florida v. Bostick, 501 U.S. 429, 435, 111 S. Ct. 2382, 2386 (1991)); see E.D.J., 502 N.W.2d 779, 782 (applying LaFave’s analysis of the Mendenhall/Royer standard of whether a stop or seizure has occurred by comparing the encounter to that between ordinary citizens).
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.
Cripps, 533 N.W.2d at 391 (citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324 (1983); United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870 (1980)). Some 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.
E.D.J., 502 N.W.2d at 781 (quoting Mendenhall, 446 U.S. at 554-55, 100 S. Ct. 1870); see also Cripps, 533 N.W.2d at 391 (identifying similar circumstances).
In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.
E.D.J., 502 N.W.2d at 781 (quoting Mendenhall, 446 U.S. at 554-55, 100 S. Ct. at 1870).
Here, the encounter took place in the middle of the afternoon on a public street and the adjacent sidewalk. Although the officers remained in their squad car when they approached appellant, they nonetheless summoned him to their car and began questioning him. In State v. Day, we concluded that the summoning of an individual by a uniformed police officer, requiring that individual to approach the officer’s squad car to provide identification and to respond to questioning, constituted a restraint and seizure under the Fourth Amendment. 461 N.W.2d 404, 407 (Minn. App. 1990), review denied (Minn. Dec. 20, 1990). Here, although the record does not reveal whether the officers asked appellant who he was, they did question him as to where he was going, what he was doing, and whether he had any guns or drugs on his person. See State v. Pfannenstein, 525 N.W.2d 587, 589 (Minn. App. 1994) (finding the act of summoning an individual to a squad car and questioning him to be more intrusive than a mere request for identification), review denied (Minn. Mar. 14, 1995). And these were not circumstances where the officers displayed an aim to assist appellant or otherwise to serve some purpose other than the investigation of possible criminal conduct. See State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993) (finding no seizure by officer checking to determine if help is needed). Under the circumstances, a reasonable person would not believe he was free to leave or end the encounter.
A brief seizure of a person for investigatory purposes is not unlawful if an officer has a “particular and objective basis for suspecting the particular person [seized] of criminal activity.” State v. Johnson, 444 N.W.2d 824, 825 (Minn. 1989) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)). An 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.” Cripps, 533 N.W.2d at 391 (citation omitted). However, a mere hunch, absent other objectively reasonable articulable facts, will not justify a seizure. Harris, 590 N.W.2d at 99.
Officer Harder testified that appellant appeared “very nervous,” stating that appellant’s walking pace slowed down, he dropped his head, and he tried not to look at the officers. We have previously determined that nervousness alone is not an objective factor, but rather a subjective assessment derived from the officer’s perceptions. State v. Tomaino, 627 N.W.2d 338, 342 (Minn. App. 2001). Although an officer’s perception of a defendant’s nervousness may contribute to the officer’s reasonable suspicion, this indicator is not sufficient by itself and must be coupled with other particularized and objective facts. State v. Johnson, 444 N.W.2d 824, 826 (Minn. App. 1989).
Officer Harder’s testimony did not articulate additional objective facts outside of appellant’s apparently nervous behavior. And there is no evidence appellant exhibited any evasive reactions, such as repeated glances at the officers, or that he changed directions in an attempt to avoid the police, or that he fled at the sight of the officers. See Johnson, 444 N.W.2d at 826 (stating that such conduct may be taken into account by the police to justify an investigative stop). Additionally, nothing in the record suggests that appellant was loitering or that his activity was in any way consistent with persons dealing in narcotics. See State v. Ingram, 570 N.W.2d 173, 176 (Minn. App. 1997) (citing with approval Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889 (1968), wherein the court held that the inference that persons who talk to narcotics addicts are engaged in the criminal traffic of narcotics is insufficient to reach the threshold of reasonable articulable suspicion), review denied (Minn. Dec. 22, 1997).
Appellant was walking down a public sidewalk several feet behind a known crack addict, but there is no evidence that appellant talked to the individual or even knew who he was.
Absent a basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant’s right to personal security and privacy tilts in favor of freedom from a seizure to obtain information.
Day, 461 N.W.2d at 407 (citing Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 2641 (1979)).
We hold that appellant was unlawfully seized upon being summoned to the squad car, and all evidence gathered thereafter must be suppressed as the fruit of an illegal seizure. See Cripps, 533 N.W.2d at 392 (citing E.D.J., 502 N.W.2d at 783). Because we conclude that an unlawful seizure did occur, we need not examine the further dispute of the parties concerning whether the search subsequently occurred with appellant’s consent.
 LaFave’s test examines the nature of the encounter between a police officer and a private citizen by comparing it to inoffensive conduct that occurs between ordinary citizens. Interrogating in a “conversational manner” may be an acceptable interaction if it is not “overbearing or harassing” in nature. State v. Sanger, 420 N.W.2d 241, 242-43 (Minn. App. 1988) (citing 3 W. LaFave, Search and Seizure § 9.2(h) at 412-13 (2d ed. 1987)).