This opinion will be unpublished and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
Hennepin County District Court
File No. 0305656986
Mike Hatch, Attorney General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, Minnesota Public Defender, Theodora Gaïtas, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.
Appellant Sir Charles McCurtis challenges his conviction of felon in possession of a firearm and gross-misdemeanor possession of a pistol without a permit, arguing that the evidence was obtained as a result of an unconstitutional seizure and the district court erred by denying his motion to suppress. Because, under the totality of the circumstances, officers had reasonable articulable suspicion to make an investigatory stop of appellant, we affirm.
On the relevant date, Officer John
Biederman and Sergeant Andrew Schmidt of the Minneapolis Police Department were
on foot patrol in downtown
Biederman and Schmidt began walking
toward the parking lot, and Schmidt saw two men, with clothes similar to those
described by the tipster, walking with another man. Schmidt knew all three by name: Adam Moore,
DeMario Booker, and Sir Charles McCurtis, appellant. Schmidt had spoken with Moore and Booker
earlier in the evening.
Schmidt knew that all three had histories of activity with the Mickey Cobras gang, a faction of the Vice Lords gang. And Schmidt knew that Moore and appellant had been previously arrested while carrying firearms. Schmidt pointed the three out to Biederman and called out something like, “Hey guys, come here” to the three men. The officers testified that in their experience it was common for someone in a group to pass a weapon or other contraband to another member of the group, therefore they decided to investigate all three men in this group.
Biederman, who also recognized Moore
and Booker and was aware that they were “fairly serious gang members” from
Officer Heidi Weeks, who was also in the vicinity and had heard the dispatch, saw Biederman grab appellant and saw appellant running away. She joined in the pursuit and ordered appellant to stop, but he continued to run, removing his jacket and throwing it on the ground as he ran.
Officer John LaLuzerne was in a squad car when he saw appellant running, being chased by Weeks. LaLuzerne testified that appellant matched the description given in the “person-with-a-gun” tip. LaLuzerne got out of his squad car, drew his gun, and ordered appellant to stop running, show his hands, and get on the ground. Appellant stopped and turned but again tried to run. He was stopped after about two steps by Weeks and other officers with their guns drawn. Appellant was arrested and charged with felon in possession of a firearm and possession of a pistol without a permit. The district court denied his motion to suppress. Appellant was found guilty of both charges by a jury and sentenced. This appeal followed.
When reviewing a pretrial order on a
motion to suppress evidence, appellate courts 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 (
The parties agree that a seizure occurred, but appellant argues that the seizure occurred when Biederman physically grabbed his jacket, and the state contends that the seizure occurred when Schmidt called to the three men to come to him. A seizure occurs if
in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
In re Welfare of E.D.J., 502 N.W.2d 779,
A limited investigative stop is
lawful if the state can show that the investigating officers had a
“particularized and objective basis for suspecting the particular person
stopped of criminal activity.”
An officer may base an investigative
stop on an informant’s tip if the tip has sufficient indicia of
reliability. In re Welfare of G.M., 560 N.W.2d 687, 691 (
In this case, because the tipster did not give any identifying information and did not state a basis for the tip, the tip alone was not sufficient to justify an investigatory stop, and the state does not argue otherwise. See Olson, 371 N.W.2d at 556 (involving a stop based on anonymous tip of a possible drunk driver, stating that if officers choose to stop on the basis of a tip alone, the anonymous caller must provide at least some specific and articulable facts to support a bare allegation of criminal activity).
If an anonymous tip alone is not
sufficient to give rise to reasonable suspicion, corroborating evidence
combined with the tip may be sufficient to establish reasonable suspicion for
an investigative stop. See Illinois v. Gates, 462
An officer’s awareness of a suspect’s criminal history or criminal involvement with offenses similar to the offense under investigation is part of the totality of the circumstances that may support an officer’s reasonable suspicion for an investigatory stop. See, e.g. State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980) (holding police knowledge that suspect may have been involved in homicide and, a year earlier, was involved in firearms-related incident were factors contributing to reasonableness of suspicion and propriety of Terry stop); State v. Bellikka, 490 N.W.2d 660, 663 (Minn. App. 1992) (stating officer’s knowledge that stopped vehicle’s owner had history of burglary offenses strengthened officer’s reasonable suspicion that driver was involved in recently committed burglary), review denied (Minn. Nov. 25, 1992); State v. Munoz, 385 N.W.2d 373, 376 (Minn. App. 1986) (holding officer’s knowledge of suspect’s prior sale and use of drugs, tendency to carry guns and previous felony convictions corroborated tip that suspect was carrying narcotics).
The Minnesota Supreme Court has held
in at least one case that evasive conduct alone created reasonable suspicion
justifying an investigative stop.
Appellant argues that even if the
officers had adequate reason for an investigatory stop, they exceeded the scope
of the stop by grabbing his jacket, impermissibly transforming the stop into an
arrest. This court rejected a similar
argument in State v. Balenger, 667
N.W.2d 133, 141 (Minn. App. 2003), review
 The tipster called from a cell phone, and the dispatcher recorded the number of the phone, but the state has not argued that the tipster could have been identified from the cell-phone number.