This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Deryl Atwort Young,




Filed December 23, 2003


Toussaint, Chief Judge


Hennepin County District Court

File No. 02006738



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 Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Poritsky, Judge.*


U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            On appeal appellant Deryl Atwort Young challenges his conviction, after a bench trial on stipulated facts, of second-degree controlled substance crime in violation of Minn. Stat. § 152.021, subds. 1(1) and 3(a) (2002).  Young argues that the district court erred in not suppressing the drugs.  Because the district court did not err in denying Young’s motion to suppress, we affirm.


            Police officers received information that crack cocaine was being sold from a house where four search warrants had already been executed.  A controlled buy was set up using a confidential reliable informant.  Based on this controlled buy, an officer applied for a warrant to search the house for narcotics, drug and controlled substances, and anything else associated with the illegal sale of the controlled substances, including firearms and ammunition.  The search warrant was considered “high-risk” because a shotgun had previously been found in a search of this house, and the same people still lived in the house.  Because the search warrant was high risk, the Minneapolis Police Department’s SWAT team, known as the Emergency Response Unit (ERU), executed it.

Police officers rammed the door of the house and the lead officer entered, yelling, “Police, search warrant.”  One person in the dining room got down on the floor and at the same time Young ran into another room.  The lead officer followed Young, yelling, “Police, search warrant, get down.”  Three other people in the room got down on the floor, but Young did not.  Young had his left hand behind his back and would not show it to the lead officer when ordered to do so.  He refused to comply when the lead officer repeatedly ordered him to get down on the floor and show his hands.  The lead officer then “poke-checked” Young, i.e., struck him with the flashlight part of a submachine gun, which extends beyond the barrel of the weapon in the chest area, because he feared Young had a weapon behind his back.  As a result of the poke-checks, Young fell to the floor and placed both hands behind his back.  When he refused to show his hands, the lead officer poke-checked Young in the chest area again.  Young struggled on the floor.

At the same time another officer, also part of the ERU, announced that a live round, or a shell casing with a bullet inside it, was on the ground.  This officer then came to assist the lead officer with Young.  Using both hands, the second officer tried to pull Young’s left hand from behind his back.  The lead officer had one hand on his gun; his other hand was pinning Young’s right hand against the wall.  The lead officer kept one hand on his gun to keep control of it.  Young physically struggled with both officers but did not assault them. 

When the lead officer felt Young’s right arm slipping out of his grasp, he poke-checked Young, first in the cheek area, then several times in the head.  The lead officer felt his life and the other officer’s would be in danger if Young got his right hand free. Young stopped struggling, brought his left hand from behind his back, and released a clear baggy containing crack cocaine.  Officers were able to handcuff Young and continue to search and secure the area.

Young was then taken to the hospital.  In the ambulance Young told the officer accompanying him that he had taken a “hit” of crack just before the police officers entered the house to execute the search warrant, that his heart was pumping due to the crack, and that he resisted the officers executing the search warrant.  Young also told the officer that he was in the house to answer the door when people came to buy crack, in return for which he was given a piece of crack.

Young moved to suppress the evidence and the statements he made to the police officer, arguing that, because the officers had used inappropriate force, the seizure was unreasonable and violated both his United States and Minnesota Constitutional rights.  The district court found that, even though the police used deadly force, the force was reasonable under the circumstances and therefore the drug evidence and Young’s statements were admissible. Young then waived his right to a jury trial. After a bench trial on stipulated facts, he was found guilty.  The district court sentenced Young to 88 months, the presumptive sentence under the sentencing guidelines.  This appeal follows. 


            In reviewing a pretrial suppression order, this court independently reviews the facts and determines, as a matter of law, whether the district court erred in denying suppression of the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). 


Young argues that he was illegally seized, and therefore, the district court erred in denying his motion to suppress the drugs.  Article I, Section 10 of the Minnesota Constitution provides “the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.”  This provision mirrors the provision against unreasonable searches and seizures found in the Fourth Amendment to the United States Constitution.  U.S. Const. amend. IV.

While executing a search warrant police officers may detain individuals present on the premises without violating the Fourth Amendment.  State v. Blacksten, 507 N.W.2d 842, 847 (Minn. 1993) (citing Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595 (1981)).  Police officers may seize an individual present on the premises to conduct a protective frisk for weapons only when Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)elements arise.  State v. Burton, 556 N.W.2d 600, 601 (Minn. App. 1996) (citing Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S. Ct. 338, 343 (1979)), review denied (Minn. Feb. 26, 1997).  Under Terry, a police officer may stop and pat down a suspect for weapons if the officer has a reasonable articulable suspicion that the suspect might be engaged in criminal activity and might be armed and dangerousTerry, 392 U.S. at 30, 88 S. Ct. at 1884.  If a person is illegally seized, evidence gathered thereafter must be suppressed.  Harris, 590 N.W.2d at 97. 

The record supports an inference that the lead officer had a reasonable articulable suspicion that Young might have been engaged in criminal activity and might have been armed and dangerous.  A shotgun had been found in a previous search of the house and the same people were living in it.  In spite of the officer’s repeated orders, Young would not get down on the floor and would not show his hands.  Therefore, the officers’ seizure of Young was lawful.


            Next, Young argues that the officers’ use of deadly force in seizing him was unreasonable.  Although police officers’ use of unreasonable force may not itself be a basis for suppressing evidence, the use of unreasonable force may change a legal seizure into an illegal seizure.  See State v. Balenger, 667 N.W.2d 133, 139 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003) (noting the use of unreasonable force may change a legal seizure into an unlawful arrest); cf. Johnson v. Morris, 453 N.W.2d 31, 36 (Minn. 1990) (noting excessive force used by a police officer in making an arrest may be the basis for a claim under 42 U.S.C. § 1983); Baker v. Chaplin, 517 N.W.2d 911, 914 (Minn. 1994) (holding law regarding use of excessive force by police officers being a constitutional violation was clearly established and actionable under 42 U.S.C. § 1983). 

The totality of the circumstances must be examined to determine whether a particular sort of seizure was justified.  Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S. Ct. 1694, 1700 (1985).  Whether an officer used excessive force in seizing a free citizen is determined under an objectively reasonable standard.  Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872 (1989).  Whether force was objectively reasonable “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest.”  Id. at 396, 109 S. Ct. at 1872.  The reasonableness of the use of force must not be judged in hindsight; it must rather be analyzed from the perspective of a reasonable officer at the scene.  Id.  Reasonable force may be used when necessary to protect

investigating officers without a showing of probable cause.  Balenger, 667 N.W.2d at 139.  “[C]ourts must consider the aggressiveness of the police methods and the intrusiveness of the stop against the justification for the use of such tactics, i.e., whether the officer had a sufficient basis to fear for his or her safety.” Id.  

            The district court concluded that the lead officer used deadly force pursuant to Minn. Stat. § 609.066, subd. 1 (2002) and section 5-302 of the Minneapolis Police Department (MPD) Code of Conduct and Use of Force because the poke-checks were administered to Young’s head and chest.  According to the MPD Code of Conduct these areas are particularly susceptible to cause death or severe injury when struck and unless deadly force is justified these areas should be avoided.

            Here, objectively reasonable officers could have concluded that Young was a risk to their safety.  A gun had previously been found in the house where the officers were struggling with Young, and an officer had seen a live ammunition round on the floor.  Young did not comply when the lead officer told him to show his hands and instead kept his hands behind his back even when he was on the floor.  Young continued to physically struggle with officers as they tried to pull his arms from behind his back.  Based on the totality of the circumstances the lead officers’ use of deadly force in seizing Young was reasonable.  Therefore, the district court did not err in denying Young’s motion to suppress.


Finally, Young argues that the district court erred in finding that the lead officer had been shot at by a suspect when executing a previous search warrant at this particular house.  This court accepts the district court's findings of fact unless they are clearly erroneous.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).  Here, the lead officer testified only that he was shot at twice while executing search warrants; he did not testify that he was shot while executing a search warrant at this particular house.  But while the finding is unsupported by the record, a totality of circumstances would nevertheless have us conclude that the lead officer’s use of deadly force was reasonable under the circumstances.   Therefore, the district court did not err in denying Young’s motion to suppress the drugs.


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.