This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Carlos A. Rios,
Filed May 20, 2003
Ramsey County District Court
File No. K202117
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s denial of his suppression motion, arguing that information from an anonymous informant was not sufficiently reliable to create reasonable suspicion to justify an investigative stop. Appellant also argues that the district court erred by denying him jail credit for time served. Because we conclude that there was a reasonable suspicion to justify the investigative stop and that appellant was not entitled to jail credit, we affirm.
Rios moved to suppress the gun evidence, and the district court denied his motion. Rios waived his right to a jury trial, and the district court found him guilty of possession of a firearm by an ineligible person. The court imposed the mandatory minimum sentence of 60 months and ordered it to be served consecutively to the sentence that Rios was serving on supervised release. Rios had been remanded to the custody of the Commissioner of Corrections because the firearm charge was a violation of the terms of his supervised release, and he served 127 days between his arrest and his sentencing for the firearm offense. The district court did not credit Rios for the 127 days. This appeal follows.
Rios argues first that the district court erred by denying his suppression motion. “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, 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) (citation omitted).
As a preliminary matter, we note that when he approached Rios in a public place and asked for his name, Officer Johnson did not effect a “seizure” under the Fourth Amendment. See Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324 (1983); United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 1877 (1980); State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980). Such inoffensive contact “between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.” Mendenhall, 446 U.S. at 555, 100 S. Ct. at 1877; see also In re Welfare of E.D.J., 502 N.W.2d 779, 782 (Minn. 1993) (noting that reasonable person would not believe that he was seized if officer merely approached him in a public place and began to ask questions).
But Officer Johnson effected a seizure when Rios complied with the instruction to put his hands on his head. See California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 1551 (1991) (requiring physical force or “submission to the assertion of authority” for a seizure). The seizure was a limited investigatory stop, which was lawful only if Officer Johnson had a “‘particularized and objective basis for suspecting the particular person stopped of criminal activity.’” State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)). An investigatory stop “requires only reasonable suspicion of criminal activity, rather than probable cause.” State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968)). “The officer * * * must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.” United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989) (quotation omitted). When evaluating the validity of an investigatory stop, courts must consider “the totality of the circumstances.” Id. at 8, 109 S. Ct. at 1585 (quotation omitted). An informant’s tip may carry sufficient “indicia of reliability” to justify an investigatory stop, and “an informant’s veracity, reliability, and basis of knowledge [are] highly relevant” when evaluating reliability. Alabama v. White, 496 U.S. 325, 328, 110 S. Ct. 2412, 2415 (1990) (quotations omitted).
Rios contends that there were insufficient indicia of the caller’s reliability to justify an investigatory stop because the caller stated that she had left the room before Rios allegedly brandished the gun and the caller did not identify Rios as Hispanic. But the record shows otherwise. The caller said that she left the nightclub after Rios displayed his gun. Further, when the 911 operator asked the caller if both men were Hispanic, the caller responded, “Yeah.”
Further, the 911 caller provided detailed information about the suspects. She gave both of their names, she described Vargas’s car in detail, and she stated that there was an outstanding warrant for Vargas. The warrant information was corroborated before the dispatcher issued the officer-safety warning.
Finally, when we consider the totality of the circumstances, we conclude that the stop was valid. If a police officer “observes unusual conduct” and reasonably concludes “that criminal activity may be afoot, the officer may briefly stop the suspicious person and make reasonable inquiries” to confirm or dispel the officer’s suspicions. Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 2135 (1993) (quotations omitted). Here, Officer Johnson testified that it was unusual to see anyone in downtown Saint Paul at 3:00 a.m. Further, he found Rios standing outside an exit door of a nightclub that had been closed for two hours.
We have also considered the arguments in Rios’s pro se supplemental brief related to the denial of his suppression motion, and we find them to be without merit.
The information from the 911 call, when combined with Officer Johnson’s observations, justified an investigatory stop of Rios. The district court did not, therefore, err by denying Rios’s suppression motion.
Because the sentencing guidelines provide that jail credit is not awarded when a current offense is sentenced consecutively to a prior offense, the district court did not err by denying Rios jail credit.