This opinion will be unpublished and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

A03-1805

 

State of Minnesota,

Appellant,

 

vs.

 

Todd Larry Tennin,

Respondent.

 

Filed May 25, 2004

Reversed and remanded
Klaphake, Judge

 

Hennepin County District Court

File No. 03057092

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for appellant)

 

Leonardo Castro, Chief Fourth District Public Defender, Melissa Haley, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN  55401 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            The State of Minnesota appeals from a pretrial order suppressing a gun seized from respondent Todd Larry Tennin during an incident in which police were responding to a man-with-gun report.  The district court determined that Tennin was unlawfully seized when police pulled up to a group of men, one of whom matched the detailed description of the suspect given by the 911 citizen caller, quickly exited their squad car with guns drawn, and ordered the men to show their hands.  Tennin, who was in the group and standing next to the suspect, threw a gun to the ground.  Tennin was later charged with being a felon in possession of a firearm under Minn. Stat. § 624.713, subd. 1(b) (Supp. 2003).

            Because the officers had reasonable articulable suspicion to suspect one of the men in the group of criminal activity and because the officers’ show of force and intrusion upon the entire group was reasonable under the circumstances, we conclude that the district court erred in determining that Tennin was unlawfully seized.  We therefore reverse the suppression order and remand for further proceedings.

D E C I S I O N

            The relevant facts of this case are undisputed.  On undisputed facts, we determine whether, as a matter of law, the district court erred in suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

            On appeal from a pretrial suppression order, this court will reverse only if the state clearly and unequivocally demonstrates that the district court erred and that the court’s error will have a critical impact on the state’s ability to prosecute a case.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).  Critical impact has been shown here:   Tennin was charged with being a felon in possession of a firearm;  without the gun, the state will be unable to prosecute him.

            Police are allowed to stop and temporarily detain or seize an individual to investigate if they have a reasonable, articulable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).  Underlying all Terry stops is a balancing test that requires a court to determine the reasonableness of police action by balancing the individual’s Fourth Amendment interests against the importance of the governmental interests at stake.  Id. at 20-21, 88 S. Ct. at 1879-80.  The governmental interests include not only the interest in investigating possible criminal activity, but also the need for law enforcement officers to protect themselves.  Id. at 22-24, 88 S. Ct. at 1880-81.

            The district court here concluded that because Tennin was not free to leave, the stop was an unlawful arrest.  A lawful stop or temporary investigatory detention, however, is not converted into an unlawful arrest merely because an individual is not free to leave or because police use a show of force, when the circumstances warrant such a show.  See, e.g., State v. Nading, 320 N.W.2d 82, 84 (Minn. 1982) (holding that where officers had reason to believe that defendant was armed and dangerous, they were entitled to take reasonable precautions during temporary detention and to order defendant to lie on ground); State v. Ailport, 413 N.W.2d 140, 144 (Minn. App. 1987) (“An officer is justified in proceeding cautiously with weapons ready if he is making a reasonable investigatory stop and has cause to believe an individual may be armed.”), review denied (Minn. Nov. 18, 1987).  Given the circumstances surrounding the stop here, including the details of the 911 report, the late hour, the location, the officers’ earlier felony narcotics arrest at that address, and the fact that the officers were outnumbered, we conclude that the officers acted reasonably in approaching the group with guns drawn and ordering the men to show their hands.

            The district court further concluded that the officers could not lawfully seize or detain Tennin because they lacked any reasonable articulable suspicion to believe that he had committed a crime.  As support for this conclusion, the district court relied on Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338 (1979), State v. Eggersgluess, 483 N.W.2d 94 (Minn. 1992), and State v. Ingram, 570 N.W.2d 173 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997).  The court cited these cases for the proposition that the “conduct of a third party, even when in close proximity to [the person engaged in criminal activity], cannot and will not provide the basis to seize the person unless the person’s own actions provide independent suspicion.”  While this may be a correct statement of the law in a case involving probable cause to search or arrest, it is not necessarily a correct statement of the law when a third person is in close proximity to the suspect during a Terry stop.

            Once police have some reasonable, articulable suspicion of criminal activity, Terry allows them to act reasonably by balancing individual interests against the importance of the governmental interests at stake.  Thus, in Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333 (1977), the Supreme Court concluded that the officer’s command that a driver get out of his car during a legitimate Terry stop was reasonable, given the balancing of officer safety against the intrusion on the driver’s liberty interest that was occasioned by the command.  And in Maryland v. Wilson, 519 U.S. 408, 413-15, 117 S. Ct. 882, 886 (1997), the Court affirmed that Mimms applies to all occupants of a vehicle, not just the driver.  Similarly, here, police have the right to temporarily detain a group of individuals surrounding a person whom they have articulable suspicion to believe has a gun in order to gain control of the situation and investigate.

            We therefore conclude that the district court erred in determining that the officers could not detain Tennin because he was not the subject of the 911 call.  When the governmental interests, including the need for officer safety, are balanced against the intrusion on Tennin’s privacy interests, the officers here acted reasonably and within the confines of the Fourth Amendment.

            Reversed and remanded.