This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Rashee N. Henry,



Filed May 22, 2007


Shumaker, Judge


Ramsey County District Court

File No. K1-05-141




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


Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)


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

            Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Willis, Judge.



U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of unlawful possession of a firearm, arguing that the district court erred by not suppressing evidence obtained during an allegedly unlawful stop-and-frisk.  Appellant also argues that the district court violated his right to a fair trial by promising to find him guilty.  Because the police officer had reasonable, articulable suspicion that appellant was engaged in criminal activity, and the district court did not violate his right to a fair trial, we affirm.


            On February 1, 2004, at 2:30 a.m., St. Paul Police received a report of a stabbing.  Responding officers were informed that the suspect fled, but no suspect description was immediately provided. 

            Two minutes after receiving the call and approximately five blocks from the scene, an officer en route to the scene observed appellant Rashee Henry jogging away from the direction of the stabbing.  Henry clutched the left side of his coat as he ran, as though he was carrying something in his coat.  The officer suspected that Henry was involved in the stabbing and was holding a knife in his coat.

            The officer stopped Henry and questioned him.  Henry told the officer that he was going to his girlfriend’s house.  He seemed excited, but did not appear agitated, scared, or upset.  Henry’s cell phone rang during the conversation, and he answered it.  At that point, the officer reached towards Henry’s coat to frisk him for weapons, but Henry turned his left side away from the officer.  After Henry continued turning away, the officer asked to search Henry.  Henry did not answer, but he stopped turning away and raised his arms in the air.  The officer frisked Henry and felt a large gun in the left pocket of his coat.

            Henry was charged with unlawful possession of a firearm by a felon in violation of Minn. Stat. § 624.713, subds. 1(b), 2(b) (2004).  Henry challenged the admissibility of the gun at a pretrial hearing, arguing that the evidence was obtained in violation of the constitutional prohibition against unreasonable searches and seizures.  The district court held that the officer had a reasonable, articulable suspicion that Henry was involved in a crime and that the evidence was admissible.

            Henry submitted the matter to the district court under a Lothenbach stipulation in order to preserve the pretrial suppression ruling for appeal.  He waived all rights to a trial.  The following exchange took place at the stipulation hearing:

THE COURT:  Have you had enough time to talk to your attorney about all of the rights at a trial and what it means to enter this type of plea of guilty?


THE DEFENDANT:  Yes, I have.


THE COURT:  Do you understand that part of what it means is that I will make a finding of guilty based upon the Complaint and the testimony at this suppression hearing in which the officer testified about finding the firearm in the pocket of your jacket?




THE COURT:  You understand that would be the basis for my accepting the plea?




            The defense then questioned whether Henry’s prior burglary conviction in Illinois met the definition of a crime of violence in Minnesota, which would make Henry ineligible to possess a firearm.  Neither the prosecution nor the district court was aware that was an issue, and the district court explained that the state has the burden of proof and continued the matter to allow the state to investigate.

            After the state investigated Henry’s prior conviction, the district court determined that Henry was convicted of the predicate crime of violence, found him guilty of unlawful possession of a firearm, and sentenced him to 60 months.  This appeal followed.


1.         Search and Seizure

            Appellant Rashee Henry challenges the district court’s order denying his motion to suppress evidence obtained during a stop-and-frisk, arguing that the evidence was obtained from an unlawful search and seizure.

            “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).  When the facts are undisputed, this court must determine “whether a police officer’s actions constitute[d] a seizure and if the officer articulated an adequate basis for the seizure.”  Id.

The United States and Minnesota constitutions prohibit unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Generally, a search or seizure without a warrant is per se unreasonable.  State v. Burbach, 706 N.W.2d 484, 488 (Minn. 2005).  This generalized rule is subject to some “specifically established and well delineated exceptions.”  Id. (quotation omitted).  One exception to the warrant requirement applies when law-enforcement officers reasonably believe that a crime has been or is about to be committed.  The officers may conduct a limited stop of a person to investigate further.  Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85 (1968).  Once an officer lawfully stops a person, the officer may conduct a limited protective weapons frisk if the officer has an objective, articulable basis for thinking that the person may be armed and dangerous.  Id. at 24, 27, 30, 88 S. Ct. at 1881, 1883, 1884.

“To conduct a limited stop for investigatory purposes, a so-called Terry stop, the police must have reasonable, articulable suspicion of criminal activity.”  State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999).  “To establish reasonable articulable suspicion, the police need only show that the stop was not the product of mere whim, caprice, or idle curiosity.”  Id. (quotation omitted).  The officer’s decision to stop a person for investigatory purposes is viewed under all of the circumstances, including “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.”  Appelgate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987).  See also United States v. Cortez, 449 U.S. 411, 417-418, 101 S. Ct. 690, 695 (1981).

            It is undisputed in this case that a seizure occurred when the officer ordered Henry to stop.  Henry argues that the officer lacked reasonable, articulable suspicion to stop him.  He relies on several factors set forth in Wayne R. LaFave, Search and Seizure § 9.5(g), at 550-51 (4th ed. 2004).  Although Minnesota cases have analyzed similar factors, they are not an exclusive list and are not meant to supplant an analysis of the “totality of the circumstances” surrounding a stop.  See Appelgate, 402 N.W.2d at 108-09 (discussing LaFave’s factors, but reaching a conclusion about the legality of a stop based on the totality of the circumstances). 

            We hold that the circumstances in this case show that the officer had a reasonable, articulable basis for stopping Henry.  The officer received a call at 2:30 a.m. about a stabbing after which the perpetrator fled.  Approximately two minutes later, the officer observed Henry jogging away from the scene, about five blocks from the stabbing.  Henry also clutched one side of his coat while he ran as though he was carrying something.  Given the time, location, suspected crime, and unusual manner in which Henry moved, the officer reasonably suspected that Henry was involved in the stabbing.  Although the officer did not base his stop on a physical description of a suspect, viewing the objective facts and all reasonable inferences drawn from those facts, the officer had a reasonable, articulable basis for stopping Henry.

            Henry also argues that even if the stop was lawful, his initial encounter with the officer dispelled any suspicion about his possible involvement in the stabbing, and, thus, the weapons frisk was unreasonable.  See Terry, 392 U.S. at 24, 27, 30, 88 S. Ct. 1881, 1883, 1884.

            After the initial stop, Henry told the officer where he was going and appeared excited, but not agitated or upset.  While there may be nothing extraordinary about Henry’s initial police encounter, the officer reasonably suspected that Henry was involved in a recently reported violent crime.  The manner in which Henry ran led the officer to suspect that Henry had a knife in his coat, and Henry did not answer when asked about the contents of his pockets.  We cannot say that Henry’s actions after the initial stop reasonably dispelled any suspicion that Henry was involved in the stabbing. 

            Additionally, as the officer reached to pat Henry’s coat, but before he made contact, Henry moved to shield his left side from the officer, the side that the officer suspected contained a knife.  Under the totality of the circumstances, we hold that the officer had a reasonable, articulable suspicion that Henry was armed or dangerous, and thus a protective weapons frisk was permissible.  The district court correctly held that the stop-and-frisk was lawful, and the evidence was properly admitted.

2.         Judicial Misconduct

            Henry also challenges his conviction, arguing that the district court deprived him of a fair trial because it was predisposed to finding him guilty.

“The Sixth Amendment of the United States Constitution guarantees criminal defendants the right to be tried by an impartial jury.”  State v. Dorsey, 701 N.W.2d 238, 249 (Minn. 2005); see also Minn. Const. art. 1, § 6.  Although the right to a trial before an impartial judge is not specifically enumerated in the Constitution, this principle has long been recognized by the United States Supreme Court.  Rose v. Clark, 478 U.S. 570, 577, 106 S. Ct. 3101, 3106 (1986); see also Greer v. State, 673 N.W.2d 151, 155 (Minn. 2004) (“[I]mpartiality is the very foundation of the American judicial system.”).  “To maintain public trust and confidence in the judiciary, judges should avoid the appearance of impropriety and should act to assure that parties have no reason to think their case is not being fairly judged.”  Pederson v. State, 649 N.W.2d 161, 164-65 (Minn. 2002).  Partiality or prejudging of the merits constitutes a structural defect that is not subject to harmless-error analysis.  Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 1265 (1991).

An impartial trial requires that conclusions reached by the trier of fact be based on the facts in evidence, Johnson v. Hillstrom, 37 Minn. 122, 123, 33 N.W. 547, 548 (1887), and prohibits the trier of fact from reaching conclusions based on evidence sought or obtained beyond that adduced in court, Spinner v. McDermott, 190 Minn. 390, 392, 251 N.W. 908, 908 (1933).  A judge’s conduct must be “fair to both sides,” and a judge should “refrain from remarks which might injure either of the parties to the litigation.”  Hansen v. St. Paul City Ry. Co., 231 Minn. 354, 360, 43 N.W.2d 260, 264 (1950).

            Henry first argues that he submitted the matter to the district court on stipulated facts pursuant to Minn. R. Crim. P. 26.01, subd. 3, and not under a Lothenbach stipulation.  He contends that it was not a Lothenbach stipulation because he did not stipulate that he was ineligible to possess a firearm.

            Although Henry is correct that a Lothenbach proceeding is a concession that the state’s facts are accurate, he did not have to concede that he was ineligible to possess a firearm to enter into a Lothenbach stipulation.  Doing so would be admitting guilt, which is different from stipulating to the accuracy of the state’s facts.  Henry did not dispute the existence of his predicate burglary conviction from Illinois, and the final determination as to whether the stipulated facts proved beyond a reasonable doubt that he was ineligible to possess a firearm was for the district court.  Therefore, Henry submitted the case to the district court pursuant to a Lothenbach stipulation. 

            Henry waived his trial rights at the Lothenbach stipulation and does not challenge his waiver on appeal.  But the district court misspoke as to the effect of the Lothenbach stipulation.  The district court referred to it as a “plea of guilty” and told Henry that it would “make a finding of guilty based upon the [c]omplaint and the testimony at this suppression hearing . . . .”  Henry argues that these comments show that the district court was predisposed to finding him guilty and did not afford him a fair trial.

            This court has explained that “a Lothenbach proceeding does not involve a guilty plea.  A true Lothenbach stipulation does not involve a concession of guilt and is intended only to preserve the defendant’s right of appeal while avoiding an unnecessary jury trial.”  State v. Johnson, 689 N.W.2d 247, 252-53 (Minn. App. 2004) (quotations omitted), review denied (Minn. Jan. 20, 2005).  Therefore, the district court mischaracterized Henry’s Lothenbach stipulation as a guilty plea.

            Nevertheless, we do not find that the district court’s comments deprived Henry of a fair trial.  Before making the comments about Henry’s guilt, the district court had already heard the evidence in the suppression hearing and had ruled that the gun was admissible, and Henry did not dispute the existence of his prior burglary conviction.  At that point, there was little doubt as to the evidence that Henry was guilty, which is evidenced by the defense’s own comments in Henry’s presence about a finding of guilt and the likely sentence to be imposed.  When the defense questioned whether Henry’s prior conviction fit the definition of a crime of violence, the district court explained that the state has the burden of proof, and granted a continuance to allow the state to investigate the status of that conviction.  It was only after the district court determined that Henry’s prior conviction fits the definition of a crime of violence that it found Henry guilty.

            Therefore, despite the misstatements about the Lothenbach stipulation, the district court did not show bias or deprive Henry of a fair trial.  A thorough review of the record shows that the district court considered all of the facts, held the state to its burden of proof for every element of the charged crime, and properly found Henry guilty.