may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
Chauncey Lenell Jackson,
Hennepin County District Court
File No. 01056967
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55417 (for appellant)
Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of felon in possession of a firearm, appellant Chauncey Lenell Jackson argues that the district court (1) erred when it denied his motion to suppress evidence, (2) abused its discretion by denying his request to disclose the identities of confidential informants, and (3) failed to conduct a complete in camera review of files he requested concerning the arresting officer’s job history. We affirm.
On July 11, 2001, at about 12:50 a.m., Minneapolis Police Officers Burns and Geere stopped a car in Minneapolis. The occupants told the officers that there were several people at 2020 Penn Avenue North and that one of them, a black male wearing a white T-shirt and denim shorts, had a .357 handgun in his possession. The occupants also told the officers that a nine-millimeter handgun was hidden in the yard.
Burns and Geere called for back-up before approaching 2020 Penn Avenue North. Officers Ochs and Sanden responded to the call. At the Rasmussen hearing, Ochs testified that the residence at 2020 Penn Avenue North was a well-known drug house. Ochs testified that Burns and Geere did not provide detailed information about the tip they had received; they said only that they had stopped a car and received a tip from the occupants, who had just left 2020 Penn Avenue North, and that there were people outside the residence who had guns and were selling crack cocaine.
Ochs approached the house from the south on foot and stationed himself in the alley behind a chain-link fence surrounding the property. The other officers approached from the north. After hearing the other officers identify themselves and tell the people in the yard to stop and get on the ground, Ochs heard someone running toward the back of the house and then saw a person, later identified as Jackson, climb over the fence. Ochs testified:
A He jumped over the fence, hit the ground, got to his feet, had his back towards me and I observed him with his right hand doing something in front of his waistband and then I observed him drop a handgun.
Q Did you actually see the gun in his hand?
A Yes, I did.
Q Up to the point had you said anything to [Jackson]?
A After he hit the ground, I said something to the effect of, “Stop. Come here.”
* * * *
Q When you said “stop, come here,” what happened?
A Nothing. I don’t think he heard me. He kept his back towards me and that’s when I seen him drop the handgun and he went the opposite direction.
* * * *
Q When did you next see Mr. Jackson?
A He ran out towards the sidewalk and then he went south. I lost sight of him for a few seconds. I ran towards where the handgun was at, kept an eye on that, and then I kind of walked out towards the alley where my partner had been yelling at [Jackson] to stop. He eventually took him into custody. * * *
Ochs estimated that he was about 20 to 30 feet away from Jackson when Jackson jumped over the fence.
Ochs testified that he was later able to identify Jackson by the clothing he was wearing. Only about ten seconds elapsed from when Ochs lost sight of Jackson until Sanden arrested him. Ochs did not see any other people in the area where Jackson went over the fence, and Jackson was arrested about 25 to 30 feet away from where the gun was dropped.
Jackson was charged by complaint with one count of ineligible person in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2000) (prior conviction for crime of violence). Jackson moved to compel the state to disclose the identities of informants and Ochs’s civilian-review, employment, and internal-affairs records. Following a hearing, the district court denied the motion. Following a Rasmussen hearing, the district court denied Jackson’s motion to suppress the gun that Ochs saw Jackson drop.
In exchange for a downward durational departure in sentencing, Jackson waived his right to a jury trial, and the parties submitted the case to the district court for decision on stipulated facts. The court found Jackson guilty as charged and sentenced him, as negotiated, to an executed term of 40 months in prison to run concurrently with any federal parole-revocation sentence.
D E C I S I O N
1. When reviewing pretrial orders on motions to suppress evidence, this court independently reviews the facts and determines as a matter of law whether the district court erred in suppressing, or not suppressing, the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).
The Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution, prohibit unreasonable searches and seizures. 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) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)).
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, 1323-24 (1983), and United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (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.”
In re E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quoting Mendenhall, 446 U.S. at 554-55, 100 S. Ct. at 1877); 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 555, 100 S. Ct. at 1877). 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 requests is required.” State v. Harris, 590 N.W.2d at 98 (quoting Florida v. Bostick, 501 U.S. 429, 435, 111 S. Ct. 2382, 2386 (1991)).
Before the district court, Jackson relied on E.D.J. to support his contention that he was seized before Ochs discovered the gun. Jackson cites no additional authority on appeal. In E.D.J., officers on routine patrol of a corner known to be an area of heavy drug trafficking saw three men standing on a street corner. 502 N.W.2d at 780. Upon seeing the police, the men turned and began walking away, looking back as they did so. Id. The officers pulled up behind the men and ordered them to stop. Id. Two of the men stopped instantly, but E.D.J. continued walking for about five steps, dropped something, took two more steps, then stopped and turned around. Id. The supreme court concluded that a seizure occurred when the police directed E.D.J. to stop walking, and because the police did not articulate a sufficient basis for the seizure, the supreme court held that the crack cocaine that E.D.J. abandoned after he was unlawfully directed to stop was the suppressible fruit of the illegality. Id. at 783.
The state argues that this case is factually distinguishable from E.D.J. because unlike E.D.J., there is no evidence that Jackson heard Ochs’s command to stop. If Jackson did not hear the command, the state contends, there is no basis to conclude that Jackson’s liberty was restrained by a show of authority, and therefore, there was no seizure. But it is not necessary for us to determine whether Jackson’s failure to hear Ochs’s command means that there was no seizure because even if Ochs’s command constituted a seizure, the seizure was permitted under E.D.J.
A 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.’” 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)). The officer may justify a 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.
In E.D.J., the supreme court concluded that there was not a sufficient basis for the seizure when the circumstances revealed only that E.D.J. was in an area of heavy drug trafficking and upon seeing police officers, turned and began walking away, looking back as he did so. But the supreme court distinguished the facts in E.D.J. from the facts in State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992). 502 N.W.2d at 783. The distinction that the court made was that in Dickerson, where the court concluded that an investigatory stop was constitutional, the defendant was not only present in a high-drug-trafficking area, but also came out of a well-known crack house before exhibiting evasive conduct after making eye contact with the police. Id. This factual distinction provided a sufficient basis for the stop in Dickerson. Like the defendant in Dickerson, Jackson was not simply present in a high-drug-trafficking area; he was leaving a well-known site of drug activity.
When Ochs told Jackson to stop, Ochs knew about the informants’ tip that people at 2020 Penn Avenue North had guns and were selling crack cocaine. When making a seizure, a police officer may rely on information provided by another officer. Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 555 (Minn. 1985). Whether the evidence uncovered in the course of the seizure is admissible depends on whether the person who provided the information to the officer making the stop was in possession of specific, articulable facts supporting a reasonable suspicion. Id. In this case, Geere and Burns knew that the informants were admitted crack-cocaine users who had just left 2020 Penn Avenue North. Furthermore, the tip was consistent with the officers’ knowledge that the residence at 2020 Penn Avenue North was a well-known drug house. See State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (probable cause exists under totality of circumstances if, when viewed together, the individual components “reveal an internal coherence”).
Jackson argues that the evidence does not indicate that he was attempting to evade the officers because no one saw him in the yard of 2020 Penn Avenue North and that he could have been running toward the residence rather than away from it. This argument is not persuasive. Ochs approached the property from the south and stationed himself on the property’s southeast corner. The other officers approached from the north. Ochs testified that Jackson went over the fence, ran west to Penn Avenue, and then went south on Penn. This testimony indicates that Jackson was leaving the property at 2020 Penn Avenue North, not entering it.
2. Jackson sought disclosure of the identities of the occupants of the car stopped by Burns and Geere. Jackson argued that their testimony was necessary to determine whether a reasonable suspicion existed to stop him and to provide information about other individuals present at 2020 Penn Avenue North who could have possessed the gun found by Ochs. The state opposed disclosure for safety reasons and on the ground that the informants were not material witnesses. The district court denied disclosure.
Whether to require the state to disclose the identity of an informant is within the district court’s discretion. State v. Martinez, 270 N.W.2d 121, 122 (Minn. 1978). The defendant has the burden of proving the need for disclosure of the informant’s identity. State v. Smith, 448 N.W .2d 550, 556 (Minn. App. 1989), review denied (Minn. Dec. 29, 1989). When deciding whether a confidential informant's identity should be disclosed, courts should consider whether: (1) the informant was a material witness; (2) the informant’s testimony will be material to the issue of guilt; (3) the testimony of police officers is suspect; and (4) the informant’s testimony might disclose entrapment. Syrovatka v. State, 278 N.W.2d 558, 561-62 (Minn. 1979). Disclosure is not required if the informant was merely a tipster and was neither a participant in nor a witness to the crime. State v. Marshall, 411 N.W.2d 276, 280 (Minn. App. 1987), review denied (Minn. Oct. 26, 1987).
Jackson argues that the informants’ testimony was necessary to his defense that someone else possessed the gun. The informants described the person with the gun as a black male wearing a white T-shirt and denim shorts. Jackson contends that other people at 2020 Penn Avenue North that evening could have been wearing similar clothing and that the informants might have been describing someone other than Jackson.
The informants were neither participants in nor material witnesses to the crime, and their testimony was not material to the issue of guilt. The case against Jackson was not based on the informants’ description of the person with the gun; it was based on Ochs’s testimony that he saw Jackson drop the gun.
Jackson argues that the informants’ testimony was necessary to his defense because if the informants testified that someone else possessed the gun, it would cast doubt on Ochs’s testimony. Jackson contends that Ochs’s testimony was suspect because he was the only person who saw Jackson with the gun. But Ochs’s testimony was consistent with the report by Burns, who saw a black male wearing a white T-shirt and denim shorts running southbound through the yard of 2020 Penn Avenue North towards a chain-link fence. Also, there is no evidence that Ochs found the gun at a location other than where he testified he found it, Sanden arrested Jackson within 30 feet from where the gun was dropped, and no one else was seen in that area.
Jackson also contends that Ochs’s testimony was suspect because Ochs had repeatedly harassed Jackson. But no evidence in the record supports this contention.
Jackson argues that if this court does not require disclosure of the informants’ identities, it should remand for an in camera hearing to consider whether the informants’ testimony is necessary.
For an in camera inquiry, a lesser showing is required; however, a defendant must make a minimal showing of a basis for inquiry that is more than mere speculation.
Smith, 448 N.W.2d at 556. Because the evidence in the record does not support Jackson’s claims that the informants were material witnesses or that Ochs’s testimony was suspect, the district court did not err by denying Jackson’s request for disclosure without conducting an in camera review.
3. The district court has broad discretion in granting or denying discovery requests, and its decision will not be reversed absent a clear abuse of discretion. State v. Renneke, 563 N.W.2d 335, 337 (Minn. App. 1997).
In 1995, Ochs arrested Jackson for a firearm offense. Jackson claimed that after he was released from prison on that offense, Ochs harassed him on several occasions. Jackson requested that the district court conduct an in camera review of Ochs’s internal-affairs, civilian-review, and employment records to determine whether any other individuals had made similar complaints against Ochs. The district court conducted the in camera review but declined to disclose any information to Jackson. The court explained:
[Defense counsel], you indicated in your initial motion that you thought some things would be present that frankly aren’t there, in terms of the civilian review records and disciplinary records regarding Officer Ochs. So, from what I’ve gotten so far, there’s nothing to disclose, and whatever information you have is incorrect, frankly.
* * * I have looked at all the civilian review files regarding Officer Ochs, and according to that, there’s nothing pending at the present time; and any complaints in the past, he was exonerated on or the complaint was dismissed.
Jackson argues that the district court’s in camera review of Ochs’s records was incomplete, but the district court’s comments demonstrate that the court reviewed Ochs’s civilian-review and internal-affairs records. Jackson does not claim that other records may have contained the type of information he sought. Ochs’s civilian-review file did not contain any pending complaints; all previous complaints had either been dismissed or Ochs was exonerated. The record shows that there were no past or pending internal-affairs proceedings against Ochs. The district court did not abuse its discretion by refusing to disclose Ochs’s records.
Jackson contends that the district court should have at least disclosed the names of complainants against Ochs. But before the district court, Jackson did not specifically request the identities of complainants. Furthermore, the identities of persons who file complaints against police officers are public data under the Minnesota Government Data Practices Act. Demers v. City of Minneapolis, 468 N.W.2d 71, 73-74 (Minn. 1991). Because that information is public data, a court order is not required for disclosure. Jackson could simply have gone to the relevant public authority and inspected the records.