This opinion will be unpublished and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

A03-102

 

 

State of Minnesota,
Respondent,

vs.

Lamar Javis Burgess,
Appellant.

 

 

Filed December 16, 2003

Affirmed

Peterson, Judge

 

 

Hennepin County District Court

File No. 02062527

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

 

Philip S. Resnick, 527 Marquette Avenue South, Suite 1925, Minneapolis, MN  55402 (for appellant)

 

 

            Considered and decided by Minge, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a conviction of felon in possession of a firearm, appellant Lamar Javis Burgess argues that because the police stop of the vehicle he was driving was not a valid investigatory stop and because the search that followed was not permitted by any exception to the warrant requirement, the district court erred when it did not suppress the evidence obtained through the illegal seizure and search.  We affirm.

FACTS

 

            On August 1, 2002, a sergeant at the Minneapolis Police Department sent an e-mail alert to other officers that stated:

ON 7/27/02 SHOTS WERE FIRED DOWNTOWN IN FRONT OF SEX WORLD. WITNESSES COULD ONLY GIVE A POSSIBLE DESCRIPTION OF THE VEHICLE. A GM FULLSIZED SUV 1994 TO 1999 TAN OR GOLD IN COLOR WITH TINTED WINDOWS.  A POSSIBLE PLATE SIMILAR TO CCR332 OCCUPIED BY AT LEAST TWO BLACK MALES, NO DESCRIPTION AVAILABLE.  A SHOTGUN WAS BELIEVED TO HAVE BEEN USED.  * *  USE CAUTION WHEN STOPPING SIMILAR VEHICLES.  * *

 

Minneapolis Police Officer Michael Geere reviewed the e-mail on August 1, and Officer James Burns reviewed the e-mail on August 3rd or 4th.

At approximately 1:30 a.m. on August 5, 2002, Geere and Burns were parked in their squad car at an all-night gas station on Washington Avenue in Minneapolis when they saw a tan, 1999 Chevy Suburban with tinted windows and license-plate number CCR325 drive briefly into the gas-station lot before pulling out onto Washington Avenue.  Because the Suburban appeared to match the description of the car that was involved in the shots-fired incident the previous week, the officers stopped the vehicle.

Before approaching the Suburban, the officers illuminated its interior with their overhead lights.  They approached the vehicle with their firearms drawn, but at their sides.  Both officers saw the driver, later identified as appellant, lean to his right and reach downward into the center console.  When Burns reached the Suburban, he saw that appellant had nothing in his hands.  Appellant stepped out of the vehicle at Burns’s request, and the officers pat-searched him and placed him in the rear of the squad car.  No weapons or contraband were found, and appellant was not handcuffed.  While Geere obtained appellant’s identification, Burns walked back to the Suburban, saw that the center console was not securely closed, and opened the console.  He saw that the interior liner for the console was ajar, lifted out the liner, and found a loaded handgun inside.  Burns placed appellant under arrest for a weapons violation.  While waiting for a tow truck to arrive to transport the impounded vehicle, appellant made several statements to the officers.

Following an evidentiary hearing on appellant’s motion to suppress the handgun and the statements he made to the officers, the district court concluded that the handgun was seized during a lawful search following a valid investigatory stop and the statements were not made in response to interrogation, and, therefore, the handgun and the statements were admissible.  Appellant was tried on stipulated facts pursuant to Minn.  R. Crim. P. 26.01, subd. 3, and found guilty of the illegal possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2002).  This appeal is from the district court’s pretrial order denying appellant’s motion to suppress, but only as it relates to the firearm.  Appellant makes no argument with respect to the admissibility of the statements.

D E C I S I O N

Appellant argues that because there was not a valid investigatory stop and because the search that followed was not permitted by any exception to the warrant requirement, the handgun obtained through the illegal search and seizure must be suppressed.

When reviewing pretrial orders on motions to suppress evidence, appellate courts 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. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  “In reviewing a district court’s determinations of the legality of a limited investigatory stop, we review questions of reasonable suspicion de novo.  In doing so, we review findings of fact for clear error, ‘giving due weight to the inferences drawn from those facts by the district court.’”  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000) (citation omitted) (quoting State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998)).  “Findings of fact are not clearly erroneous if there is reasonable evidence to support them.”  Asfaha v. State, 665 N.W.2d 523, 526 (Minn. 2003) (quotation omitted).

“[B]rief investigatory stops are permissible if the officer can be said to have had a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.’”  State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)).  A brief investigatory stop requires only reasonable suspicion of criminal activity, which is a lesser quantum of proof than probable cause.  Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968); State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999).  The principles of a Terry stop apply to automobiles.  State v. McKinley, 305 Minn. 297, 303-04, 232 N.W.2d 906, 910-11 (1975).

Reasonable, articulable suspicion requires a showing that the stop was not the result of “mere whim, caprice, or idle curiosity.”  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996).  Police may make a Terry stop to investigate a past felony crime based on a police bulletin, provided that the bulletin was issued on the basis of articulable facts supporting a reasonable suspicion.  United States v. Hensley, 469 U.S. 221, 232, 105 S. Ct. 675, 682 (1985); State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991).  Police bulletins can support a stop “to check identification, to pose questions to the person, or to detain the person briefly while attempting to obtain further information.”  Hensley, 469 U.S. at 232, 105 S. Ct. at 682 (citation omitted).

Appellant argues that the information in the August 1 e-mail was too vague and too remote to support a Terry stop of the vehicle he was driving.  Appellant asserts that because the e-mail lacks details about the shots-fired incident, such as who was shot at, and whether the occupants of the vehicle were victims or participants, it does not support a lawful investigatory stop.  We disagree.

Although the e-mail states that witnesses “could only give a possible description of the vehicle,” the information provided included the make, style, and color of the vehicle, a description of the windows, and a possible license-plate number.  The vehicle appellant was driving matched the description, except that it had license number CCR325, not CCR332.  But this slight discrepancy between the “possible” license number provided by witnesses and the license number of appellant’s vehicle does not invalidate the stop.  Compare State v. Ferraro, 290 N.W.2d 177, 178-79 (Minn. 1980) (police were justified in stopping van with license number which, except for one digit, was the same as vehicle license number reported following theft) with Blaisdell v. Comm’r of Pub. Safety, 381 N.W.2d 849, 850 (Minn. 1986) (no reasonable suspicion where witness gave no license number, no suspect description, and no details of two-month-old theft).  See State v. Okegbenro, 409 N.W.2d 1, 3 (Minn. App. 1987) (stating suspicion attached to vehicle was not affected by difference in one letter in license number). 

Appellant argues that suspicion about his vehicle did not provide a reasonable, articulable suspicion to detain him personally.  Appellant contends that Hensley only authorizes stopping an individual suspected of a past crime based on a police bulletin.  In Hensley, officers stopped the vehicle Hensley was driving after an officer recognized Hensley in the driver’s seat.  469 U.S. at 223-24, 103 S. Ct. at 677.  Thus, stopping the vehicle was incidental to stopping Hensley.  However, it is well-established that “[t]he authority and limits of the [Fourth] Amendment apply to investigative stops of vehicles.” United States. v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 1573 (1985) (citing  Hensley, 469 U.S. at 226, 105 S. Ct. at 679).

In Ferraro, officers stopped a van that, except for one digit in the license-plate number, matched the description of a van involved in a theft four days earlier.  290 N.W.2d at 178.  After stopping the van and seeing that the driver matched the description of the suspect in the earlier theft, officers arrested the driver.  Id.   The stop was based solely on the description of the van; the officers did not see the van or the driver do anything that suggested current involvement in criminal activity.  Id.  The facts do not indicate that the officers were aware of the nature of the van’s involvement in the earlier theft or that they recognized the driver before stopping the van.  Id.  Nonetheless, the supreme court held that “[t]he stop of defendant’s van was based on reasonable, articulable suspicion.”  Id. at 179.

As in Ferraro, appellant’s vehicle was stopped because it closely matched the description of a vehicle involved in a shots-fired incident several days earlier.  We, therefore, conclude that the stop of appellant’s vehicle was based on reasonable, articulable suspicion.

Appellant also argues that the shots-fired incident was too remote in time to support a Terry stop.  But officers may make a Terry stop to investigate completed offenses; a vehicle stopped for investigatory purposes need not be engaged in suspicious activity when it is stopped.  Okegbenro, 409 N.W.2d at 3.   Justification for a stop does not evaporate when a felony is completed.  Hensley, 469 U.S. at 234, 105 S. Ct. at 683; State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993).  “A brief stop and detention at the earliest opportunity after the suspicion arose is fully consistent with the principles of the Fourth Amendment.”  Hensley, 469 U.S. at 234, 105 S. Ct. at 683.  The stop that the Court upheld in Hensley, which was based on information in a police bulletin issued shortly after an armed robbery, occurred 12 days after the robbery was completed.  Hensley, 469 U.S. at 223, 105 S. Ct. at 677.  We, therefore, conclude that the information about the shots-fired incident, which occurred nine days before appellant was stopped, created reasonable, articulable suspicion for the stop, and the stop was not the result of mere whim, caprice, or idle curiosity. 

Appellant next argues that even if the officers had reasonable, articulable suspicion to stop the vehicle he was driving, the search that followed was not justified by any exception to the warrant requirement.  Subject to certain narrow exceptions, warrantless searches are prohibited under the United States Constitution.  State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000). 

One of the exceptions to the warrant requirement that was acknowledged in Robb “permits a search of a vehicle’s passenger compartment, even when not incident to arrest, if an officer possesses a reasonable belief based on specific and articulable facts that a suspect is dangerous and may gain immediate control of weapons.”  Robb, 605 N.W.2d at 100 (citing Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3481 (1983)).  It is immaterial that the suspect is under police control during the search, because “if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside.”  Long, 463 U.S. at 1051-52, 103 S. Ct. at 3482.

Officers acting on information in an e-mail that instructed them to “use caution when stopping similar vehicles,” stopped appellant’s vehicle late at night.  As they approached the vehicle, the officers saw appellant lean to his right and reach downward into the center console of the vehicle.  When Burns reached the vehicle, he saw that appellant’s hands were empty.  These specific and articulable facts formed the basis for a reasonable belief that the driver of the stopped vehicle was dangerous and might gain immediate control of weapons.  Accordingly, we conclude that the search of appellant’s lawfully stopped vehicle without a warrant was permitted under the warrant exception recognized in Long.  Because the search was permitted under this exception, we will not address appellant’s argument that the search was not permitted as a search incident to arrest.

            Affirmed.