This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Jimmy Dijon Warren,
Hennepin County District Court
File No. 0822516
John Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.
In this appeal from his conviction for possession of a firearm by an ineligible person, appellant Jimmy Warren argues that, as the product of an unlawful seizure, the firearm should be suppressed. We affirm.
On the evening of November 16, 2001, Minneapolis Police Officer Alan Williams learned during roll call at the beginning of his shift that several citizen complaints had been received regarding gunshots, crack-cocaine trafficking, and gang activity in the area of 38th Street and Portland Avenue in Minneapolis. Based on this information, Williams and his partner, Officer Jason Reimer, patrolled the area of 38th Street and Portland Avenue that evening.
Shortly before 10:00 p.m., the officers turned onto Portland Avenue and noticed three individuals, who were approximately 50 feet from them, near a convenience store at the corner of 38th Street and Portland Avenue. Williams drove the marked squad car slowly with the headlights off to allow the officers to approach the individuals without being seen. The corner was well lit by the convenience-store lights and the streetlights. Reimer observed one of the three, later identified as appellant Jimmy Warren, holding a black object next to his right leg. The squad car moved within 30 feet of Warren. With a view of Warren’s back and right side, Reimer saw Warren turn slightly, quickly move his arm from his side, and shove the object into his waistband. The officers accelerated, pulled within 10 to 20 feet of Warren, and illuminated Warren with a spotlight. Reimer then observed what appeared to be the handle of a gun protruding from Warren’s waistband. As Reimer prepared to exit the squad car, Warren started to run.
Although Reimer did not direct Warren to stop, he pursued Warren on Portland Avenue from about five feet behind. In an attempt to intercept Warren, Williams drove the squad car parallel to the path of the foot chase. But Warren cut through a yard and continued to run until he came to a high chain-link fence. As Warren tried to open the latch on the fence, Reimer reached Warren and ordered him to put his hands up. Warren scaled the fence. As Warren was facing Reimer, the black object fell from Warren’s waistband. Without stopping to retrieve the object, Warren ran toward the back of the yard, scaled the back fence, and proceeded into the alley. Reimer followed as the foot chase circled back to Portland Avenue, where Reimer apprehended Warren.
Reimer eventually handcuffed Warren and placed him in the custody of two backup officers. Reimer returned to the location where the object had fallen from Warren’s waistband and retrieved a semi-automatic nine-millimeter handgun.
When reviewing a pretrial suppression order, we “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). A challenge to the district court’s assessment of the legality of an investigatory stop requires us to review the question of reasonable suspicion de novo. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). In doing so, we review factual findings for clear error, “giving due weight to the inferences drawn from those facts by the district court.” Id. (quoting State v. Lee,585 N.W.2d 378, 383 (Minn. 1998)).
Warren argues that Reimer seized him without the requisite reasonable suspicion because Reimer’s testimony that he observed Warren, in the dark, at a distance of 30 to 50 feet, holding an object that appeared to be a gun, is not credible. The state contends that the stop was lawful based not only on Reimer’s observations, but also Warren’s flight when the squad car stopped.
The Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution protect against unreasonable searches and seizures. Our analysis of whether Warren was unlawfully seized begins with our determination of the point of seizure. A seizure occurs when, under the totality of the circumstances, a reasonable person would believe that, because of the police conduct, he or she is not free to terminate the encounter. In re Welfare of E.D.J., 502 N.W.2d 779, 781-82 (Minn. 1993); State v. Bergerson, 659 N.W.2d 791, 795 (Minn. App. 2003); State v. Houston, 654 N.W.2d 727, 732 (Minn. App. 2003). In other words, a seizure occurs when officers “convey a message that compliance with their request is required.” Harris,590 N.W.2d at 98(quotation omitted).
It is not necessary for a police officer to possess reasonable, articulable suspicion before approaching a person in public. E.D.J., 502 N.W.2d at 783. But at the point when a seizure occurs, “the police must be able to articulate reasonable suspicion justifying the seizure.” Id.
In E.D.J., the Minnesota Supreme Court determined that the Minnesota Constitution affords greater protection in defining the point of seizure. Id. In doing so, the E.D.J. court analyzed Article I, Section 10, of the Minnesota Constitution, which is textually identical to the Fourth Amendment to the United States Constitution, and declined to follow California v. Hodari, 499 U.S. 621, 111 S. Ct. 1547 (1991) (analyzing Fourth Amendment). E.D.J., 502 N.W.2d at 781, 783. In Hodari, the United States Supreme Court held that seizure occurs only when police officers use physical force to restrain an individual or when a person submits to a show of authority by police. Hodari, 499 U.S. at 625-26, 111 S. Ct. at 1550. In E.D.J., two police officers on patrol observed three individuals standing on a corner known for heavy crack-cocaine trafficking. E.D.J., 502 N.W.2d at 780. Upon seeing the officers, the individuals began walking away. Id. The officers pulled up behind the individuals and ordered them to stop. Id. Two of the individuals complied immediately. Id. But E.D.J. took five steps, dropped crack cocaine, took two more steps, and then complied. Id. The issue in E.D.J. was whether the seizure occurred when the police pulled up and ordered E.D.J. to stop or whether it occurred when E.D.J. actually stopped. Id. at 781. The Minnesota Supreme Court held that, under the Minnesota Constitution, the seizure took place when the order was given because a reasonable person in E.D.J.’s “shoes” would not have felt free to leave or to terminate the encounter once the police ordered that person to stop. Id. at 783.
Applying E.D.J., we recently held that, when a squad car trailing behind a vehicle activates the flashing red lights to initiate a stop, a seizure occurs because a reasonable driver would not feel free to terminate the encounter. Bergerson, 659 N.W.2d at 795-96. Accordingly, we conclude that, under the totality of the circumstances, when Reimer began to chase Warren on foot, a reasonable person would not have felt free to terminate the encounter. In fact, Reimer’s action in pursuing Warren demonstrates that Warren could not terminate the police contact. Thus, the seizure occurred when Reimer initiated the foot chase.
We next turn to whether Reimer had reasonable suspicion of criminal activity at the time of the seizure. See Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1979-80 (1968); State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999). A police officer’s investigative stop or seizure must not be “the product of mere whim, caprice or idle curiosity.” State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880)). Rather, it must be based on specific and articulable facts which, taken together with a rational inference from those facts, reasonably warrant the stop. Pike, 551 N.W.2d at 921-22. Furtive actions, evasive behavior, and flight upon seeing the police have been determined to establish reasonable suspicion of criminal activity. Houston, 654 N.W.2d at 732-33 (citing Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000)).
Warren challenges the credibility of the officers’ testimony by arguing that it was impossible for the officers to observe these actions from their location under the lighting conditions that existed. That is not a fact apparent on the face of the record and, thus, we must rely on the district court’s determination of credibility. Credibility determinations are the province of the trier of fact, not this court on review. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d, 508 U.S. 366, 113 S. Ct. 2130 (1993); State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). In reviewing the record, we find no basis to set aside any of the factual findings for clear error. Britton, 604 N.W.2d at 87.
When Reimer initiated the foot chase, he knew of crack-cocaine trafficking, gang activity, and recently received citizen complaints of gunshots in the vicinity of 38th Street and Portland Avenue. Reimer had observed Warren, who carried an object that appeared to be a gun, turn away as the squad car approached and make a furtive motion consistent with shoving this object into his waistband. With the assistance of a spotlight, Reimer had observed, from 10 to 20 feet away, what appeared to be the handle of a gun sticking out of Warren’s waistband. Based on this record, we conclude that Reimer had reasonable, articulable suspicion of criminal activity at the time the seizure occurred. Accordingly, we affirm the district court’s order denying the motion to suppress evidence.
 Warren was ineligible to possess a firearm because he was adjudicated delinquent in 1999 for attempted aggravated robbery.