This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,


David G. McClellon,


Filed February 27, 2007


Stoneburner, Judge


Dakota County District Court

File No. K2051571


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


James C. Backstrom, Dakota County Attorney, Vance B. Grannis, III, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)


John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender,, 2221 University Avenue Southeast, Suite 425, Minneapolis , MN 55414 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant challenges his conviction of third-degree controlled-substance crime, arguing that the district court erred in denying his motion to suppress evidence obtained as a result of what he argues was an illegal seizure.  Appellant also challenges the sufficiency of the evidence to establish that he possessed at least three grams of crack cocaine.  Because appellant was illegally seized and the evidence of the cocaine should have been suppressed, we reverse.



            At 11:49 p.m. on a June night, Burnsville police officers Steven Stoler and Maksim Yakovlev were on foot patrol in an area about which the Burnsville police had received calls complaining of drug activity.  The officers heard people yelling, as if arguing, and saw a group of five or six people come from the side of an apartment building.  Several in the group were holding beer bottles and yelling at each other.  The officers “advised the parties to stop,” saying, “Police, stop.”  Everyone stopped except appellant David McClellon, who began to walk away.  Stoler then told McClellon, “Police, stop, come here,” but McClellon kept walking and said, “What the f-ck for?”  When Stoler again ordered McClellon to stop, McClellon began to run. 

            As Stoler chased McClellon, he saw McClellon throw something into a nearby bush.  After McClellon was apprehended and arrested, Stoler searched the bush and found a plastic baggie containing two large and several small “rocks” of suspected crack cocaine.  The rocks had a total weight of 3.22 grams. 

            In preliminary testing, samples from all of the rocks tested positive for cocaine.  A subsequent gas chromatography/mass spectrometry test (GCMS) was performed on samples taken from only the smaller rocks, which again tested positive for cocaine.  The samples tested by GCMS had a total weight of only a few milligrams. 

            McClellon was charged with one count of third-degree controlled-substance crime.  He moved to suppress evidence of the cocaine, arguing it was the fruit of an illegal seizure.  The district court denied the motion to suppress, and a jury found McClellon guilty.  McClellon was sentenced to the presumptive sentence for third-degree controlled-substance crime, and this appeal followed.




            “When reviewing a pretrial order denying a motion to suppress evidence where the facts are undisputed and the trial court’s decision is a question of law, we independently review the facts and determine as a matter of law whether the evidence must be suppressed.”  State v. Bergerson, 659 N.W.2d 791, 794 (Minn. App. 2003). 

            In Minnesota, if there is a determination that, “under all of the circumstances, a reasonable person would have believed that because of the conduct of the police he was not free to leave, then there was a seizure, and the police must be able to articulate reasonable suspicion to justify the seizure, else any evidence that is the fruit of the seizure is suppressible.”  In re E.D.J., 502 N.W.2d 779, 783 (Minn. 1993).  Absent reasonable suspicion by police justifying a seizure, a person has the right to ignore the police and “go about his business” when approached by the police.  State v. Houston, 654 N.W.2d 727, 733 (Minn. App. 2003) (citing Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 676 (2000)), review denied (Minn. Mar. 26, 2003).  But unprovoked flight on noticing the police may give rise to an articulable suspicion to justify a seizure.  Id.

            The state argues that the officers did not seize McClellon until after he began to run away and that his flight supplied reasonable, articulable suspicion to support a seizure.  The state takes a view of the evidence that would replicate the circumstances in State v. Houston, in which this court held that Houston’s unprovoked flight on officers’ initial approach gave rise to reasonable suspicion to seize Houston.  Id. at 733-34.  The district court likewise found Houston applicable, concluding that McClellon was not seized before he ran.  The district court characterized the officers’ request for the group to stop as a “show of authority” that “did not rise to the level of a stop and seizure.”  But the record establishes that after the group was asked to stop, McClellon individually was twice ordered to stop before he began to run.  McClellon did not flee merely on seeing the police.  We conclude appellant was seized before he attempted to flee, and the record does not support an analogy to Houston.

            Alternatively, the state argues that the officers had reasonable, articulable suspicion to seize the group before McClellon ran, because the “volume or content of an argument may rise to the level of disorderly conduct.”  But the officers did not testify that they considered the group to be involved in disorderly conduct, and they did not articulate any other suspicion of criminal activity that would justify seizing the group.  The officers testified that they had not received any complaints about noise or disorderly conduct on the evening in question, and one officer testified that neither possession of beer nor arguing loudly constituted criminal conduct.  The record therefore does not support an argument that the officers had a reasonable, articulable suspicion to stop the group. 

            If the group was seized, the seizure was unlawful, and McClellon’s flight and discarding of cocaine was the result of that unlawful seizure.  If the group was not seized, and the officers were merely requesting that the group voluntarily stop and answer questions, McClellon had a right to ignore the request and “go about his business.”  Id. at 733.  The exercise of that right cannot be the basis for reasonable suspicion justifying his seizure.  But when McClellon exercised his right to go about his business, he was clearly seized when police twice ordered him to stop.  At that point, any reasonable person would have concluded that he or she was not free to leave.  It was only after this seizure that McClellon began to run, and his flight cannot justify his pre-flight seizure. 

            This case is similar to the circumstances in In re E.D.J., 502 N.W.2d at 780.  There, two officers on patrol saw two men and a juvenile standing on the corner in an area known for heavy drug-trafficking.  Id.  When the group saw the squad car approaching, they turned and began walking away from the squad car, looking back as they did so.  Id.  The officers pulled up behind the men and ordered them to stop.  Id.  The two men stopped, but E.D.J. continued walking for about five steps, dropped something, took two more steps, then stopped and turned around.  Id.  The supreme court stated that “there clearly was a ‘seizure’ once the police directed E.D.J. to stop” and concluded that the police did not articulate a sufficient basis for the stop.  Id. at 783.  Here, as in E.D.J., the officers have not articulated any reasonable suspicion for stopping McClellon before he ran.  We conclude that discovery of the drugs is the result of McClellon’s illegal seizure, and the district court erred in denying McClellon’s motion to suppress the drugs.


            Because we are reversing on the basis of the illegality of McClellon’s seizure, we need not address McClellon’s challenge to the sufficiency of evidence supporting the weight-of-the-drugs element of the crime charged.  In the interest of judicial economy however, we briefly address the issue.  The nature and weight of a controlled substance may be determined through extrapolation from random samples in appropriate circumstances.  State v. Traxler, 583 N.W.2d 556, 561 (Minn. 1998) (citing State v. Robinson, which stated that there “may be instances when the controlled substance seized is such that extrapolation of weight through random testing would be legitimate, depending upon the composition and form of the substance, the type of substance involved, and the circumstances in which the substance is found or seized”).

            In this case, the rocks were not separately packaged, but were contained in the same baggie.  And the state’s expert chemist testified that the entire sample appeared to be uniform in nature and that, in her professional opinion, the entire 3.22-gram sample contained cocaine.  We conclude that the use of random testing in this case was sufficient to establish the required weight of the mixture.