This opinion will be unpublished and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

C4-02-1404

 

State of Minnesota,

Respondent,

 

vs.

 

Carlos A. Rios,

Appellant.

 

Filed May 20, 2003

Affirmed

Willis, Judge

 

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

WILLIS, Judge

            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.

FACTS

Appellant Carlos A. Rios was convicted of possession of a firearm by an ineligible person under Minn. Stat. § 624.713, subd. 1(b) (2000).  Rios was arrested on January 11, 2002, after the Saint Paul police received an anonymous tip that someone matching Rios’s description had brandished a gun at a downtown nightclub.  At the time of his arrest, Rios was on supervised release from a prison sentence for first-degree assault.

The anonymous tip was the result of a 911 call.  According to the call transcript, the caller reported seeing two men with guns at the nightclub.  The caller identified the men as “Francisco Vargas” and “Carlos Rios” and stated that both men were Hispanic and had “gang tattoos.”  The caller described Vargas’s car and stated that Vargas had an outstanding arrest warrant.  The caller also described the men’s guns, stating that one was “a big black one” with “a long nose” and the other one was “a short one.”

At Rios’s March 2002 Rasmussen hearing, Saint Paul Police Officer Darren Johnson testified that he was patrolling downtown Saint Paul at about 3 a.m. on January 11, 2002, when he heard a police radio broadcast announcing an “officer-safety message,” which repeated the information provided by the 911 caller.  According to a transcript of the officer-safety message, the police dispatcher stated that police records showed that there was an outstanding arrest warrant for Vargas.

Officer Johnson testified that (1) shortly after hearing the officer-safety message, he heard another officer respond to the message and say that she had seen two men within six blocks of the nightclub who possibly matched the descriptions given by the 911 caller; (2) he volunteered his assistance and drove to the area where the other officer reported seeing the two men; (3) he looked around the area and, not seeing anyone, drove by the nightclub where the 911 caller reported seeing Rios; and (4) as he drove past the nightclub he noticed a man standing inside the recessed doorway of an exit from the nightclub, and he thought the man might be one of those described in the officer-safety message because he was “a Hispanic male” and “matched the description” given by the 911 caller.  Officer Johnson also noted that there is typically very little activity in downtown Saint Paul at 3:00 a.m.

Officer Johnson further testified that (1) another Saint Paul police officer arrived on the scene at about the same time as Officer Johnson; (2) the two officers exited their cars and approached the man; (3) the other officer asked the man his name and he responded, “Carlos Rios”; (4) Officer Johnson instructed Rios to put his hands on his head, and when Rios did so, a gun was visible in one of Rios’s pockets; and (5) the other officer recovered a loaded .357 magnum, and Officer Johnson placed Rios under arrest.

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.

D E C I S I O N

I.

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.

II.

Rios also argues that the district court erred by denying him credit for time served.  The granting of jail credit is not discretionary with the trial court.  State v. Doyle, 386 N.W.2d 352, 354 (Minn. App. 1986).  The Minnesota Sentencing Guidelines provide that:

Pursuant to Minn. Stat. § 609.145, subd. 2, and Minn. R. Crim. P. 27.03, subd. 4(b), when a convicted felon is committed to the custody of the Commissioner of Corrections, the court shall assure that the record accurately reflects all time spent in custody in connection with the offense * * * for the offense or behavioral incident for which the person is sentenced, which time shall be deducted by the Commissioner of Corrections from the sentence imposed * * * .

 

Minn. Sent. Guidelines III.C.

Rios contends that the 127 days that he served between his arrest and his sentencing for the firearm charge was time served “in connection with” that charge and that he should, therefore, receive jail credit for the 127 days.  But Rios served the 127 days because the firearm charge violated the terms of his supervised release.  Further, his 60-month sentence for the firearm charge was ordered to be served consecutively to the sentence he was serving for assault, and the sentencing guidelines provide that no jail credit is awarded “when a current offense is sentenced consecutive to a prior offense for which the offender is already serving time in a prison or jail * * * .”  Minn. Sent. Guidelines III.C.03.  Allowing Rios to receive jail credit for the 127 days would result in “de facto concurrent sentences.”  Id.

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.

Affirmed.