This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Michael James Silberg,



Filed April 16, 2002


Poritsky, Judge*


Hennepin County District Court

File No. 00037055


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

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Poritsky, Judge.

U N P U B L I S H E D  O P I N I O N


On appeal from a conviction of being a felon in possession of a firearm, appellant argues that police lacked both articulable suspicion to stop him and probable cause to arrest him, and that therefore evidence acquired in a search of a car in which he was found should have been suppressed.  We affirm.


At approximately 7:25 p.m. on April 16, 2000, Sergeant Daniel McShane of the Minneapolis Police Department was on routine patrol when he received a dispatch that people with guns were surrounding a house at 3801 39th Avenue South.  The dispatch specified that several cars were involved, at least one of which was red, and that an Asian male was one of the individuals involved.  McShane responded immediately and arrived at that location within one minute of the dispatch.  Because he arrived from the south, he blocked off traffic headed in that direction.  McShane observed four occupied vehicles in the area immediately surrounding the address in question: a purple Acura, a red Mitsubishi, a black Acura, and a silver Mercedes.  McShane observed a white male in a black leather coat walking from the Mercedes.  That individual was later identified as Matthew Anderson.  McShane exited his car, drew his weapon, took up a defensive position, and called for backup, requesting that it come from the north so as to block flight in that direction.

Shortly thereafter, several squad cars arrived from the north.  Officers arriving from the north saw a black sport utility vehicle (SUV) leaving as they arrived.  As they were arriving, another dispatch was received, relaying information from a neighbor that a gray Mercedes and a black SUV were involved.  Officers stopped the black SUV a few blocks away, and the occupants were returned to the scene.  Matthew Anderson was in that vehicle.

Officer Patrick Slater, who had arrived from the north with his partner, operated the PA system to order the individuals out of the cars, one by one.  Officer Chad Fuchs assisted in the removal of individuals from the four cars.  Appellant Michael James Silberg was removed from the silver Mercedes, handcuffed, and passed back to Officer Martin Werner, who had recently arrived.  Werner escorted Silberg to his squad car, where he asked if there were any guns in the Mercedes.  Appellant said there was a handgun under the front passenger seat.

As Fuchs was walking toward the next car, but before Werner had talked to Silberg about the presence of guns in the car, Fuchs saw an SKS assault rifle with a large capacity magazine in plain view in the back seat of the Mercedes, and relayed this information to the other officers.  When Werner was done with Silberg, he took a position by the Mercedes, also noting the assault rifle in the back seat.  After all of the occupants of the four vehicles were removed and their cars secured, Werner checked the front passenger compartment of the Mercedes and found a .22 caliber handgun and two ammunition magazines under the floor mat.

Silberg was charged with one count of being a felon in possession of a firearm.  Before trial, Silberg moved to suppress the evidence acquired at the stop, including the handgun, as the fruit of an improper stop and arrest.  The district court concluded that the stop and frisk and the search and seizure were valid.  Silberg waived his right to a jury trial, and the parties submitted the case for a court trial on stipulated facts.  The district court found Silberg guilty as charged and sentenced him to 60 months in prison.  This appeal followed.


Silberg’s first challenge is to the validity of the initial stop.  This challenge raises the issue of whether the officers had a “particularized and objective basis for suspecting the particular person stopped of criminal activity.”  See Appelgate v. Commissioner of Public Safety, 402 N.W.2d 106, 108 (Minn. 1987) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981). 

The first dispatch to McShane included the facts that people with guns were surrounding a house at 3801 39th Avenue South and that several cars, one of which was red, were involved.  When McShane arrived, he observed several vehicles, one of which was a red car, in the immediate area.  As other police officers were arriving, a second dispatch was received, stating that a silver Mercedes and a black SUV were also involved in the incident.  The police observed a silver Mercedes in the area and a black SUV leaving.  At that point the police clearly had a particularized and objective basis for stopping the persons in and around the cars that had been described in the dispatches.  The district court’s findings concerning the stop were not clearly erroneous.  See State v. Capers, 451 N.W.2d 367, 370 (Minn. App. 1990) (findings concerning a stop reviewed for clear error), review denied (Minn. Apr. 25, 1990). 

The district court ruled that when the police removed Silberg from his car, handcuffed him, and placed him in a squad, it was a lawful stop and frisk.  Although the district court did not address the issue of probable cause, both parties argued the issue on appeal.  In our opinion, the issue of probable cause to make an arrest is determinative.

 Thus, the first question is whether or not the police effected an arrest when they removed Silberg from his car.  An arrest takes place when police officers restrain a suspect's liberty of movement.  State v. Lohnes, 344 N.W.2d 605, 610 (Minn. 1984).  The ultimate test to be used in determining whether a suspect was under arrest is “whether a reasonable person would have concluded, under the circumstances, that he was under arrest and not free to go.”  State v. Beckman, 354 N.W.2d 432, 436 (Minn. 1984).  Here Silberg was handcuffed and placed in the back of the squad car.  It is clear that at that point he was under arrest.  See, e.g., U.S. v. Thompson, 906 F.2d 1292, 1296 (8th Cir. 1990) (investigatory stop was transformed into arrest when suspects were detained and placed in separate squad cars); State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993) (defendant was under arrest from time he was ordered to ground at police officers’ gunpoint, handcuffed, and put in squad car); Lohnes, 344 N.W.2d at 610 (suspect who was ordered into police squad car, left there for three hours, handcuffed during removal from car to police station, accompanied in all his movements by police, and not free at any time to leave, was considered under arrest because there was complete intrusion on suspect’s liberty, regardless of whether he was formally placed under arrest). 

Having determined that Silberg was arrested, we turn to the second question: whether the police had probable cause to make the arrest.  Where the facts are undisputed and the decision is a question of law, this court may independently review the facts and determine whether the evidence should be suppressed.  State v. Schauer, 501 N.W.2d 673, 674 (Minn. App. 1993) (“On given facts, a reviewing court may determine probable cause as a matter of law.”)

Although Silberg was ordered out of his car before the police had any specific knowledge that there was a handgun and assault rifle in the car, the police nonetheless had probable cause to arrest him.  When Silberg was ordered out of his car, the police knew from the initial call that people with guns were surrounding 3801 39th Avenue and that several cars were involved, one of which was red.  McShane, arriving at that address within a minute of the call, observed four occupied vehicles, one of which was red.  He also observed a silver Mercedes.  From the second call, the police learned that the silver Mercedes and a black SUV were involved in the incident.  The police observed a black SUV leaving the area.  Before the police ordered Silberg to do anything, he was observed in the Mercedes.  At the time they ordered Silberg out of the car, the police had probable cause to believe that he was in the process of committing any number of attempted felonies—including homicide, first or second degree assault, and first or second degree burglary.

Silberg’s assertion that he and his car did not match the description of the Asian male and the red car is wide of the mark.  That description indicated only that the red car and an Asian male were part of the contingent involved in the incident.  If anything, the fact that McShane observed the red car upon arriving serves to confirm the accuracy of his suspicion that the group he observed matched the group described in the call. 

It followed that once Silberg was lawfully arrested, any guns recovered from the Mercedes were admissible.


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.