This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Antoine Lamont Hollins,



Filed May 7, 2002

Affirmed in part, reversed in part and remanded

Hanson, Judge


Ramsey County District Court

File No. K9 01 718


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


Susan Gaertner, Ramsey County Attorney, Richard J. Dusterhoft, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)


Earl P. Gray, Gray & Malacko Law Offices, 46 East Fourth Street, Suite 1030, St. Paul, MN 55102; and


Lisa Lodin Peralta, 205 Commerce at the Crossings, 250 Second Avenue South, Minneapolis, MN 55401 (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


Appellant challenges his conviction of possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (2000), arguing that the district court erred in denying his motion to suppress certain evidence.  Because the police lacked probable cause to seize appellant, all statements made by appellant after his seizure were obtained in violation of his constitutional rights and should be suppressed.  Accordingly, we reverse the conviction and remand to the district court.


            On Thursday, February 22, 2001, at about 11:20 a.m., Officer Robert Kosloske, a St. Paul Police Department undercover narcotics officer, noticed “a [black male], who appeared to be a teenager,” exiting 920 Western Avenue North carrying what Officer Kosloske identified as a gun case suitable for carrying a long gun.  The male was appellant Antoine Lamont Hollins.  As Officer Kosloske slowed his vehicle, he observed Hollins place the case into the trunk of a taxi cab.  Kosloske parked to continue his observation.  Hollins went back into the house and returned with several large, plastic garbage bags and placed them in the cab's trunk as well.  Hollins then got into the cab, and it drove away.

            Officer Kosloske followed the cab, which drove to Arnelia’s Bar at 1183 West University Avenue.  The cab pulled up to the back door of the bar.  After Hollins entered the bar through the back door, the cab driver repositioned the cab with the trunk near the back door.  Officer Kosloske radioed for a marked squad car to assist with what he described as suspicious activity.

            Officer Bob Luna arrived at the scene while Hollins was still inside the bar.  Officers Kosloske and Luna approached the cab driver and “advised him of why [they] were there.”  Hollins then exited the back door of the bar, and “was startled by [the officers'] presence.”  The report states, “[t]he cabbie had already opened the trunk and the items in the trunk were visible.”  The officers asked Hollins if the items in the trunk were his, and he admitted they were.  The officers asked if the gun was his.  Hollins said it was a shotgun and was his, then stated the gun belonged to his father.

            The report then notes that Hollins

appeared to begin to get nervous and to avoid the subject fleeing the scene, Officer Luna and [Officer Kosloske] escorted [him] to the marked squad where he was pat-searched and then placed in the rear seat of the squad. 


As Hollins sat in the rear seat “with the door open [Officer Kosloske] asked if he was a convicted felon and he said that he was.”  The report states: “[Hollins] was then identified by a court document as HOLLINS, Antoine Lamont,” which also listed his birth date and address. [2]

            Officer Kosloske informed Hollins he was under arrest for possession of a firearm by an ineligible person.  The gun was then removed from the case at the scene, and found to be an unloaded 12-gauge, Remington pump shotgun, bearing a serial number indicating the gun had not been stolen.  The garbage bags contained clothing, shoes, and photographs.

            Hollins requested a Rasmussenhearing on his motion to suppress the physical evidence and oral statements made to police, claiming that this evidence was obtained as a result of an illegal stop.  The district court denied his motion.  The parties submitted the matter to the court pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), based on the police report.  The district court found Hollins guilty.  This appeal followed.  


            The parties argue this case under the standards announced in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968) and its progeny, for the legality of an investigative stop.  The district court addressed the motion to suppress in the same manner, concluding that the officers had “reasonable suspicion that [Hollins] may have been engaged in criminal activity by transporting a long gun and entering a bar,” and, thus, that none of the evidence need be suppressed.  We conclude that the incident must be divided into two distinct stages, with the separation occurring when Hollins was placed in the squad car.  


            Hollins argues that the officers' actions prior to placing him in the squad car violated his constitutional rights.  Hollins suggests that a seizure occurred when Hollins exited the bar and Officer Kosloske began to question him because Hollins was not, as a practical matter, free to enter the cab and direct the driver to leave.  We analyze this stage of the incident differently. 

To begin with, the officer did not stop Hollins’ vehicle.  Instead, the cab stopped on its own.  Officer Kosloske simply drove on the public roadways and observed activity in a public location.  The cab driver opened the trunk, revealing the gun case that Officer Kosloske had already observed, again from his car on a public street.  This does not constitute a “stop.”  See State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (stating that it is not a seizure to walk up to a person standing in a public place or sitting in an already stopped car).

            We do not believe that the Terry standard applies to this set of facts.  The officers’ observations and initial questioning of Hollins occurred without any government intrusion under the law.  Officer Kosloske observed Hollins’ conduct from the public streets and the parking lot of a public business.  Then, the officers approached the cab and cab driver after the cab had already stopped.  When evidence is in plain sight in a vehicle that has already stopped, no "seizure" under constitutional analysis has occurred.  Id.

Similarly, police officers generally are allowed to approach someone in a public place and to ask some preliminary questions.  State v. Harris, 590 N.W.2d 90, 98-99 (Minn. 1999).  The United States Supreme Court has indicated that police questioning in public places is a legitimate investigative tool and is not, without some additional coercive or intimidating circumstances, a “seizure” for Fourth Amendment purposes.  United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 1877 (1980).  Thus, when Hollins exited the bar and approached the cab, the officers were allowed to ask him whether the items in the trunk, including the gun, were his.  Because those preliminary questions did not violate Hollins’ constitutional rights, the district court did not err in refusing to suppress his answers to those questions.


            After Hollins had approached the officers at the cab and answered some initial questions regarding the contents of the trunk, the officers pat searched him and placed him in the squad car.  The police report states that Hollins

appeared to begin to get nervous and to avoid the subject fleeing the scene, [the officers] escorted [Hollins] to the marked squad where he was pat-searched and then placed in the rear seat of the squad.


While the police report suggests that Hollins was not arrested until after Hollins admitted that he was a felon and "was then identified by a court document,” we conclude that Hollins was arrested when he was placed in the squad car. 

            An arrest occurs 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) (citing Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L.Ed.2d 229 (1983)).

            In analyzing whether a reasonable person in Hollins’ circumstances would have concluded that he was not free to go, we are handicapped because the state relied solely on the police report and offered no live testimony at the Rasmussen hearing.  Accordingly, we are limited to a strict construction of the police report and cannot make assumptions in favor of the state’s case.  While detaining a suspect in the squad car would not necessarily constitute an arrest, see, e.g. State v. Harrem, 384 N.W.2d 880, 883 (Minn. 1986), we conclude, under the bare facts presented in the police report and in the absence of any further evidence by the state, that the pat down search of Hollins and his detention in the squad car was an arrest.

First this was not a traffic stop, which is “presumptively temporary and brief” and the “motorist stopped expects a short delay while some questions are answered and his or her license is verified * * * .”  Hareem, 384 N.W.2d at 882 (noting that the questioning incident to an ordinary traffic stop is not generally considered custodial interrogation).  The coercive aspects of the interrogation of Hollins were greater than that present in an ordinary traffic stop, heightening Hollins’ sense of vulnerability.  Second, while Hollins’ liberty had not previously been restrained, he was placed in the squad car for the express purpose of restraining his liberty, to prevent him from “fleeing the scene.”  A reasonable person in these circumstances, having been searched and placed in a squad car after only a brief encounter with police by the cab, and with his belongings still in the cab, would conclude that he was not free to go or to terminate the discussion.

The police report gives no indication that Hollins' detention in the squad car was necessary for the officers' safety while continuing an investigation.  See State v. O'Neill, 216 N.W.2d 822, 828 (Minn. 1974) (stating “[t]he purpose of this limited search is not to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence,” and quoting Adams v. Williams, 407 U.S. 143, 146, 147, 92 S. Ct. 1921, 1923 (1972)).  In fact, the police report does not indicate that the officers conducted any further investigation other than asking Hollins if he was a felon and identifying him.  There is no evidence to suggest that the officers wanted to determine whether any crime other than the status offense – such as transportation of drugs or stolen property, robbery or attempted robbery of the place of business – had occurred or was about to occur.  Accordingly, we conclude that Hollins was arrested when the officers searched him and placed him in the squad car.  We next turn to the question of whether that arrest was lawful. 

            An officer may make an arrest without a warrant when that officer has probable cause to believe that a felony has been committed.  Minn. Stat. § 629.34 (2000); State v. Harrison, 279 Minn. 310, 315, 156 N.W.2d 763, 767 (1968).  In Harris, the supreme court set down the definition of reasonable cause:

Reasonable cause has been defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.


265 Minn. at 264, 121 N.W.2d at 330-31 (quoting People v. Ingle, 53 Cal.2d 407, 412, 348 P.2d 577, 580 (1960)).

            Prior to the arrest, the police did not have reasonable grounds to believe that Hollins had committed a crime.  Transporting the cased gun was not, by itself, unlawful.  It is only Hollins’ status as a felon that makes this conduct criminal and, prior to the arrest, the police did not have sufficient information to create probable cause to believe that Hollins was a felon.

            While the officers could have discovered that Hollins was a felon if they knew his identity, the police report is clear that Hollins’ identity was not established until after the arrest.  Moreover, without having sufficient information to create a belief that Hollins was a felon, it is doubtful that police could have lawfully required Hollins to provide his identity even before the arrest.  Our supreme court has held that a request for a person’s identification was unlawful where the officer was not able to provide an independent and objective basis for suspecting that the person was committing a status offense, and the resulting identification was suppressed as the fruit of an illegal seizure.  State v. Cripps, 533 N.W.2d 388, 391-92 (Minn. 1995).

            Evidence obtained as the product of an illegal arrest is generally inadmissible.  State v. Hoven, 269 N.W.2d 849, 854 (Minn. 1978).  When “the arrest plays a significant role in inducing the confession, it will be suppressed just like any other product of an illegal arrest.”  Id.  The Hoven court stated that the

apt question * * * is whether * * * the evidence [at issue] * * * has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.


Id. (emphasis added) (quoting Brown v. Illinois, 422 U.S. 590, 599, 95 S. Ct. 2254, 2259 (1975)) (other quotation omitted).

            Even if we were to analyze the police action as a Terry stop, we would come to the same conclusion.  While Terry allows a limited investigative detention, that detention becomes custodial, requiring a Miranda warning, when “a reasonable person would believe that he was in custody and was being restrained to a degree associated with a formal arrest.”  State v. Rosse, 478 N.W.2d 482, 486 (Minn. 1991).  See also State v. Molik, 552 N.W.2d 730 (Minn. 1996) (stating detainee “was being restrained to a degree associated with a formal arrest once trooper patted him down and placed him in the squad car, and this driver should have been given a Miranda warning before trooper questions him * * * ”). 

Hollins’ admission to his status as a felon – which, for all practical purposes, is a confession under the circumstances – was the product of the illegal arrest.  Nor was there any basis to conclude that the “primary taint” of that confession was purged.  The confession occurred immediately after the arrest, prior to Hollins being advised of his rights or allowed to speak with counsel, and there was no alternative, independent source for the officers to have obtained the information.  See United States v. Bazinet, 462 F.2d 982, 990 (8th Cir. 1972) (citing the above factors as determinative of whether arrestee’s act was voluntary or the product of the illegal arrest).  Accordingly, we reverse Hollins’ conviction and hold that the district court erred in refusing to suppress all statements made by Hollins after he was placed in the squad car, and all evidence obtained as a result of those statements.

            Affirmed in part, reversed in part and remanded. 



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

[1] The facts are taken from the police report, which was the only evidence submitted by the state at the suppression hearing, and was the factual basis upon which the parties submitted the case pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).

[2] The record does not indicate how this “court document” was accessed, nor whether or at what point Hollins provided identification or supplied his name.  The only reasonable conclusion to draw from the report is that Hollins told the officer he was a convicted felon and supplied his name, and the court document provided the additional information.