This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In the Matter of the Welfare of
Filed April 5, 2005
Hennepin County District Court
File No. JX-03-66887
Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant W.C.A.R.)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Crippen, Judge.*
Appellant W.C.A.R. was adjudicated delinquent of being a felon in possession of a firearm in violation of Minn. Stat. §§ 624.713, subd. 1(b); .7181 (2002). Appellant challenges the district court’s order refusing to suppress evidence discovered as the result of a pat search. Appellant argues that the search was improper because it was based on an anonymous tip that lacked indicia of reliability.
Because the officers who performed the search had a reasonable and articulable fear for their own safety based not on the anonymous tip, but on observations made at the scene, we affirm.
This court reviews the district
court’s determination of the legality of a limited investigatory stop and
seizure de novo. State v. Britton,
604 N.W.2d 84, 87 (
A police officer is permitted to make a limited investigatory stop, if
the officer can describe specific and articulable facts that reasonably justify
Here, the anonymous caller gave no identifying facts and no basis for
the claim or the source of the caller’s knowledge that a group of young men was
involved in suspicious activity. An
investigative stop and search based solely on the call would be improper. But police may approach and question an
individual in a public place without violating the Fourth Amendment. State
Clearly, the officers did not observe any violation of the law, however
minor, that independently would justify an investigatory seizure. However, a court must consider the totality
of the circumstances when determining if reasonable suspicion exists.
In State v. Schrupp, 625 N.W.2d 844, 847-48 (Minn. App. 2001), review denied (Minn. July 24, 2001), this court suggested that Terry provides guidance for determining when seemingly innocent actions can
justify suspicion of criminal activity: by the nature, quality, repetition or
pattern of conduct or by conduct that is unusually furtive or evasive. We concluded there that there must be a
certain quality that elevates otherwise innocent conduct into the “category of
unusual behavior” that would permit an inference of possible criminal
Nervousness alone will not justify an investigatory search. In
re Welfare of M.D.B., 601 N.W.2d
214, 216 (Minn. App. 1999), review
Evasive conduct can provide a basis for an investigatory stop. State
v. Dickerson, 481 N.W.2d 840, 843
Here, the police officers were responding to a suspicious activity call; the activity was occurring at night in a high crime area; the officers were outnumbered by the young men at the scene; there was a flashlight on top of the automobile that tended to support the anonymous caller’s description of suspicious activity; and appellant made a furtive gesture as the officers approached. All of these factors taken together gave the officers a reasonable concern for their safety.
It is important to remember that the United States Supreme Court
considered the question of officer safety to be the major justification for an
investigatory search or seizure.
reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.
Based on the totality of the circumstances, we conclude that the district court did not err by refusing to suppress evidence discovered as the result of the pat search. We therefore affirm.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.