This opinion will be unpublished and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
Hennepin County District Court
File No. 02087782
Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Jay M. Heffern, Minneapolis City Attorney, Lee C. Wolf, Assistant City Attorney, 300 Accenture Tower, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)
Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, Suite 200, 317 Second Avenue South, Minneapolis, MN 55401 (for appellant)
Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Wright, Judge.
On appeal from a conviction of carrying a pistol without a permit, appellant Jonas Lee Martin, argues that police did not have reasonable suspicion to stop and frisk him and evidence obtained as a result was the fruit of an illegal seizure that should have been suppressed. We affirm.
On November 1, 2002, at approximately 9:15 p.m., Thomas Bushard heard what he described as a “loud scuffle” and the sound of a gunshot at the house next door to Bushard’s. Bushard saw two vehicles, a gold car and a light-blue pickup, leave the house after the incident. Bushard called 911, and officers arrived shortly thereafter. Bushard reported what he had heard and seen to the officers who then checked the house next door to Bushard’s and found it empty. After about an hour of investigation, the officers left.
Bushard stayed awake and waited for the occupants of the house to return. At about 1:25 A.M., he saw the blue pickup return. Although it was dark, Bushard was able to see a male individual go into the house. He again called 911, telling dispatch that the truck that had left after the shot was fired had returned. Bushard testified that while he often saw the blue pickup at the house next door, he did not think the driver was a tenant there. Bushard knew that the pickup’s driver was male but could provide no further description.
Officer Jeffrey Hoff responded to Bushard’s second call. Hoff was not one of the officers who had responded to the original call, so Hoff spoke with Bushard, who informed him about the events surrounding the original disturbance. On his way to the house to investigate, Hoff shined a flashlight into the blue pickup and noticed a bullet on the front passenger seat. Hoff and his backup officer were going to knock on the back door of the house when they saw a man, later identified as appellant, coming down the back stairs of the house. The officers drew their guns and waited outside the stairwell’s exit. The moment appellant emerged from the house the officers told him why they were there and that, because of the shot-fired call and the bullet on the seat of the pickup, they intended to conduct a pat-search for weapons for officer safety. Appellant immediately admitted that he had a gun in his jacket pocket. The officers retrieved the gun.
Appellant was charged with one count of carrying a pistol without a permit in violation of Minn. Stat. § 624.714, subd. 1(a) (2002). Appellant moved to suppress the evidence of his admission and the gun based on a challenge to the stop-and-frisk conducted by the officers. The district court denied appellant’s motion. Appellant agreed to a court trial on stipulated facts. The district court found appellant guilty, stayed imposition of the sentence for two years, and imposed conditions of probation. This appeal followed.
I. Validity of stop
“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). The facts of this case are not in dispute and respondent concedes that appellant was seized when the two officers confronted him and told him that they intended to pat-search him as he left the house.
An exception to the general rule that search or seizure of an individual is not constitutionally permissible unless the officers making the search have an arrest warrant, search warrant, or probable cause to make an arrest has been carved out, permitting officers, under certain circumstances, to stop and frisk an individual “for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.” Wold v. State, 430 N.W.2d 171, 174 (Minn. 1988) (citing Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968)). The officer must demonstrate that the suspicion was based on objective facts and not a mere hunch. State v. Cripps, 533 N.W.2d 388, 391-92 (Minn. 1995). “The officer makes his assessment on the basis of ‘all the circumstances’ and draws inferences and makes deductions based on his training and experience in law enforcement.” State v. Riley, 667 N.W.2d 153, 156 (Minn. App. 2003) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)), review denied (Minn. Oct. 21, 2003). “These circumstances include the officer’s general knowledge and experience, the officer’s personal observations, information the officer has received from other sources, the nature of the offense suspected, the time, the location, and anything else that is relevant.” Id. (quoting Appelgate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987)). Review of the legality of a limited investigatory stop and questions of reasonable suspicion is de novo. Id.
Appellant points to the four-hour gap between the shots-fired report and his seizure and the fact that Bushard could not describe anyone involved in the shots-fired incident or the driver who returned in the blue pickup and could not say that it was the driver of the pickup who entered the house to argue that the officers had no reasonable suspicion that appellant was engaged in any criminal activity.
Both appellant and respondent argue extensively about how the facts of this case are similar to or different from the numerous cases cited. The relevant inquiry, however, is not how close the facts of this case are to another case but whether, under the totality of the circumstances of this case, the officers were justified in making a limited investigatory stop-and-frisk of appellant. We conclude that they were.
First, the officers knew that a shot had been fired at the house four hours earlier. Second, they knew that a light-blue pickup truck had left the house after the shot was fired and that the same pickup had recently returned. Third, they knew that the driver of the pickup truck was male and that a man had entered the house after the pickup returned and was the only person observed to have entered the house after the initial investigation determined that the house was empty. Fourth, they knew that there was a bullet on the front seat of the pickup truck. Under the totality of the circumstances, we conclude that the officers had a reasonable suspicion that the person coming out of the house might be connected to the pickup truck and might have some connection to a weapon. The district court did not err in concluding that the officers had a reasonable, articulable suspicion to justify the limited investigatory stop they initiated.
II. Validity of search
Generally, an officer may conduct a limited, protective weapons frisk of a lawfully stopped person if the officer has an objective, articulable basis for thinking that the person may be armed and dangerous. In re Welfare of M.D.B., 601 N.W.2d 214, 216 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000). Appellant argues that the district court erred in concluding that the officers had a reasonable suspicion that he might be armed and dangerous because of the four-hour gap between the shots-fired call and his seizure. But appellant ignores the evidence of the bullet on the front seat of the pickup truck. Many courts view the right to frisk as being automatic whenever the suspect has been stopped for a type of crime for which the offender would likely be armed. Wold, 430 N.W.2d at 175-76 (citing 3 W. LaFave, Search & Seizure, §9.4(a) at 506 and noting that Professor LaFave was cited with approval in sustaining validity of a “pat down” search in State v. Payne, 406 N.W.2d 511 (Minn.1987)). We conclude that the nature of the shot-fired incident coupled with the bullet on the seat of the pickup truck that appellant was reasonably suspected of driving justified the limited search for weapons conducted in this case.
Appellant claims that because he was cooperative with the police they had no basis for suspecting he might be dangerous. See State v. Evans, 373 N.W.2d 836, 837, 839 (Minn. App. 1985) (concluding that frisking a defendant observed smoking marijuana with a group was invalid because he was cooperative when approached in a park during the daytime, and the officers had no reasonable basis for believing that he might be armed), review denied (Minn. Nov.1, 1985); State v. Eggersgluess, 483 N.W.2d 94, 97-98 (Minn. App. 1992) (concluding that a “pat down” search following a traffic stop was invalid because the stop occurred in broad daylight, there was no evidence suggestive of a gun and defendant did not make any sudden or furtive movements). The facts of this case are distinguishable. There were no reports of shots fired in the cited cases, and no bullets or other weapon-related evidence was observed in the vehicles of the defendants in the cited cases. Appellant’s cooperation after the officers told him he would be searched for weapons did not negate the articulable suspicion that led the officers to conduct the search.
Appellant’s argument that his admission that he had a gun was the result of an illegal detention and search and should have been suppressed is without merit based on our conclusion that the officers had a reasonable, articulable basis for detaining and frisking him.