This opinion will be unpublished and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

C5-01-1191

 

State of Minnesota,
Respondent,

vs.

Tyrone Leeron Dabney,
Appellant.

 

Filed June 18, 2002

Affirmed

Randall, Judge

 

Ramsey County District Court

File No. K4002642

 

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

 

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 W. Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)

 

Barry V. Voss, Voss & Hickman, P.A., 527 Marquette Avenue, Suite 2355, Minneapolis, MN 55402 (for appellant)

 

 

Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Foley, Judge.*


U N P U B L I S H E D O P I N I O N

R. A. RANDALL, Judge

After the district court denied his pretrial motion to suppress evidence, appellant entered into a Lothenbach stipulation and was found guilty of theft of moveable property having a value greater than $500 in violation of Minn. Stat. 609.52, subds. 2(1), 3(3)(a) (2000). Appellant now challenges his conviction alleging the police lacked probable cause to arrest appellant. We affirm.

FACTS

In August 2000, Officers Amy Boyer and Kathleen O'Reilly of the Saint Paul Police Department received a call reporting that a black male, approximately 170 pounds and 5' 7" tall, wearing dark clothing was seen in the area of 290 Birmingham Street, St. Paul, carrying a sledgehammer.

Boyer and O'Reilly responded to the call, and, as they were driving west on Burns Avenue, they observed a black male, matching the description, getting into a vehicle facing east, on Burns Avenue. As the officers drove past the vehicle they saw the man get into the vehicle and begin to leave, traveling east on Burns Avenue. Boyer and O'Reilly turned the police vehicle around and began to follow appellant's vehicle, which stopped after traveling approximately 15 feet. Boyer and O'Reilly saw the driver exit the vehicle and walk briskly to the curb. Boyer again noticed that the male matched the height and weight description. The officers then pulled the squad car to the curb and parked five to ten feet behind the car.

Believing that the man they saw may be the male carrying the sledgehammer, Boyer and O'Reilly approached the man, later identified as appellant Tyrone Dabney. When Boyer asked the man to identify himself, appellant turned around and the officers noticed that appellant was sweating, appeared nervous, and had a silver film on his forehead, the inside of his forearms, and his palms.

After Boyer asked appellant where he was coming from, appellant replied that he had finished delivering newspapers and was on the way to meet a friend. Based on experience, Boyer knew that the silver film on appellant's head, arms, and hands was inconsistent with delivering newspapers. In response to Boyer's request for the friend's name and where they were meeting, appellant stated that his friend's name was Lee, that he did not know Lee's last name, and did not know where they were to meet.

While speaking with appellant, Boyer and O'Reilly received a radio message stating that the black male had been seen rolling tires into the woods, approximately one block from where Boyer, O'Reilly, and appellant were standing. The officers then handcuffed appellant and placed him in the squad car. Boyer and O'Reilly did not frisk appellant or state that he was under arrest. When Boyer and O'Reilly approached appellant's vehicle and looked through the window they spotted a tire, a tire rim, and a tool to remove tires from a car.

Boyer and O'Reilly then received a radio call from Officer Brady Harrison reporting that Harrison observed a vehicle without tires and found two tires in a wooded area. Harrison then brought the individual who reported the suspicious activity to where Boyer and O'Reilly were located. The individual identified appellant as the individual she saw rolling the tires into the woods because she recognized an insignia on appellant's T-shirt. Boyer and O'Reilly called for a tow truck to tow appellant's vehicle, opened the trunk, and observed a tire matching the one in the back seat.

D E C I S I O N

1. Arrest

Appellant argues that he was arrested when he was handcuffed and placed in the police vehicle and that police lacked probable cause for the warrantless arrest. The state contends that appellant was seized for investigatory purposes and to maintain the status quo and was not arrested until after the show-up identification.

When there is no factual dispute, a reviewing court determines "if a police officer's actions constitute a seizure and if the officer articulated an adequate basis for the seizure." State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted).

We disagree with the state's argument that appellant was lawfully seized but "short of arrest." A 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) (citation omitted). Officers must not "convey a message that compliance with their requests is required." Florida v.Bostick, 501 U.S. 429, 435, 111 S. Ct. 2382, 2386 (1991).

The Minnesota Constitution has been interpreted to mean that "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." Cripps, 533 N.W2d at 391.

The state relies on State v. Munson, 594 N.W.2d 128 (Minn. 1999) for the proposition that when police handcuffed appellant he was not under arrest but simply detained. The supreme court in Munson found that frisking, handcuffing, and placing multiple individuals in the rear of squad cars was not an arrest and were "reasonable steps taken by the officers to safely conduct their investigation." Id. at 137.

Munson is not applicable to this case and can be distinguished on the facts. First, in Munson the police handcuffed the appellants while frisking them, removed the handcuffs, and then placed the appellants in the squad cars without being handcuffed. Id. In this case, appellant was continually handcuffed, including while he was in the squad car.

Second, the court in Munson determined that the appellants were not arrested because they were handcuffed only while being frisked for weapons and because the purpose of handcuffing appellants was for officer safety while the suspects were frisked. Id. The court further determined that because there were multiple suspects it was reasonable for police safety to briefly handcuff them and then place them in the squad cars while continuing the investigation. Id. In the present case, concern for officer safety was minimal, if non-existent, given that appellant was the only suspect and there were two officers. And unlike Munson, the officers here had not been informed that the suspect might be armed. See id. (recognizing that officers were acting on information that the suspects may be armed). The state did not argue, and there is no evidence in the record to support a conclusion, that police handcuffed appellant due to safety issues. In fact, the state argued that appellant was handcuffed to continue the investigation.

We conclude that a reasonable person in appellant's position would not have felt free to terminate the encounter when handcuffed and placed in a police car and, thus, for fourth amendment purposes, appellant was arrested. The issue then is whether there was probable cause for appellant's warrantless arrest.

2. Probable Cause

Appellant argues that police lacked sufficient probable cause for a warrantless arrest because they did not personally observe appellant with a sledgehammer or tires.

Probable cause for arrest exists when facts and circumstances would warrant a prudent person in the officer's position to reasonably conclude that the person committed a crime. In re Welfare G.M., 560 N.W.2d 687, 695 (Minn. 1997). Probable cause requires more than a suspicion of criminal activity but less evidence than is required for a conviction. State, Lake Minnetonka Conservation Dist. v. Horner, 617 N.W.2d 789, 797 (Minn. 2000).

To determine if probable cause exists for a warrantless arrest, an appellate court "independently reviews the facts to determine the reasonableness of the conduct of police." State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997) (citation omitted). The existence of probable cause is reviewed under the "totality of the circumstances" test. State v. McCloskey, 453 N.W.2d 700, 702-03 (Minn. 1990).

Although the police did not personally observe appellant with the sledgehammer and tires, they had sufficient evidence from which they could infer, for probable cause purposes, that appellant was stealing tires. The evidence is as follows: police received a call at approximately 3:00 a.m. that a black male, approximately 5' 7" tall and 170 pounds, wearing dark clothing, was seen carrying a sledgehammer; appellant was seen by the police, approximately one-and-one-half blocks from the scene of the suspicious sighting and matched the height, weight and clothing description given to the police; and, as the police passed by appellant's vehicle, he entered it and began to head east, then pulled to the side of the road after traveling approximately 15 to 20 feet when the police car turned around. Appellant then exited the vehicle and walked briskly from the car; the officers, while speaking to appellant, noticed that he was sweating profusely and had an unusual silver film on his head, hands, and arms, and when the officers asked appellant where he was coming from and where he was going to, appellant's answers were evasive. Appellant stated that he was delivering newspapers and was going to meet a friend, but he could not provide his friend's last name or where they were to meet, and the officers, based on their experiences, knew that the silver film on appellant was inconsistent with delivering newspapers.

Boyer testified that the officers received a radio call that a

black male matching the description of the gentleman [they] were talking to had removed four tires from a vehicle, and complainant had last seen him rolling the tires up into the woods which was just * * * northwest of our location.

 

It was at this point that appellant was handcuffed and placed in the squad car. Although these facts may not be sufficient for a conviction, they are sufficient, given the totality of the circumstances, to "lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person under consideration is guilty of a crime." State v. Carlson, 267 N.W.2d 170, 173 (Minn. 1978). We conclude that police could reasonably infer that appellant was the individual seen rolling the tires into a wooded area. The evidence was sufficient to at least provide probable cause for appellant's warrantless arrest. Because we conclude that appellant was legally arrested before the officers saw the tires in appellant's vehicle, the evidence need not be suppressed. Evidence seized incident to lawful arrest need not be suppressed and the district court properly considered it when making a determination. See State v. Walker, 584 N.W.2d 763,766 (Minn. 1998) (stating police may conduct warrantless search incident of a valid arrest without any additional justification).

Affirmed.



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