This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


James Darrell Vandevender,


Filed July 17, 2007

Reversed and remanded

Minge, Judge


Stearns County District Court

File No. K1-06-4256



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


Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303-4701 (for appellant)


Jacob T. Erickson, Vermeulen Law Office, P.A., 26 North Seventh Avenue, St. Cloud, MN 56303 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Minge, Judge.


U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Appellant State of Minnesota challenges the district court’s pretrial order suppressing a handgun and dismissing the complaint charging respondent with ineligible possession of a firearm.  Appellant argues that the district court erred in concluding that respondent was arrested and that the evidence was obtained as the result of an illegal seizure and subsequent search.  Because we conclude that the arrest was supported by probable cause, we reverse and remand.



            On September 4, 2006, two St. Cloud police officers were patrolling the St. Cloud State University campus on student move-in day.  The officers were on foot.  After 9:00 p.m. that evening, two young women approached the officers, pointed out respondent, and told the officers that respondent “had a gun around his waistband, was showing it to people and talking about ‘capping’ people.”   At this time respondent was less than a quarter of a block away.  As the officers then walked toward respondent, two young men approached the officers and told them that “[respondent] had a gun in his waistband and was flashing it around to people.” 

            When one of the officers was approximately 12 feet away from respondent, he identified himself as a police officer and immediately told respondent he was under arrest.  The officer then directed respondent to put his hands on his head and placed respondent in handcuffs “to detain him.”  The officers patted down respondent, discovered a 22-caliber handgun in his right-front pants pocket, and removed the gun.              

            Ultimately, respondent was charged with possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (2006).  Respondent moved to suppress the handgun, arguing that he was arrested at the outset, that there was not probable cause to justify an arrest, and that the search was conducted and the gun was discovered incident to an illegal arrest.  The prosecution argued that respondent was not arrested but merely stopped at the outset of the encounter, that there was a reasonable, articulable suspicion for the stop, and that the search incident to the stop was legal.  Because the prosecution had insisted that there was no arrest, only a stop, it did not argue that probable cause existed.  The district court analyzed the initial events surrounding the officers’ encounter with respondent and decided that respondent was arrested at the outset.  The district court concluded that the arrest was not supported by probable cause, suppressed the handgun, and dismissed the complaint.  This appeal follows.


            We begin by considering whether the officers had probable cause to arrest respondent for the suspected crime of terroristic threats.[1]  If we conclude that the officers had probable cause to arrest at the time of the seizure, the question whether the officers arrested or merely stopped respondent at the outset of the encounter is not significant.  But before we reach the merits, we consider respondent’s threshold contention that we may not consider whether the officers had probable cause to arrest him for terroristic threats because the state did not raise the probable-cause claim with the district court

            Generally, we do not consider matters unless argued and considered in the court below.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996); State v. Dickerson, 469 N.W.2d 462, 467 (Minn. App. 1991), aff’d, 481 N.W.2d 840 (Minn. 1992), aff’d, 508 U.S. 366, 113 S. Ct. 2130 (1993).  But we may consider an argument that merely refines an issue already considered by the district court, as long as we can properly evaluate the refined argument based on the record.  See Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 523 (Minn. 2007).  Such consideration of a matter is consistent with appellate courts’ responsibility to decide cases in accordance with the law.  See State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990).  

            Here, our consideration of the state’s probable-cause argument is proper.  The district court expressly considered whether the officers had probable cause to arrest respondent and concluded that “no probable cause to arrest [respondent] existed at the time the arrest occurred.”  The state’s probable-cause argument, based on the crime of terroristic threats, is merely a refinement of the probable-cause issue considered by the district court.  And, here, the district court found the facts necessary to our resolution of that issue.  Still further, our consideration of the issue does not unfairly surprise respondent.  The state clearly raised the probable cause argument in its brief, and respondent had ample opportunity to reply to the state’s argument. 

            When the state challenges a pretrial suppression order, we will reverse only where the state shows “clearly and unequivocally that the [district] court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.”[2]   State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (quotation omitted).  The question whether a search or seizure is justified is a legal question, which we review de novo.  State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005).   

            The Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution protect the “right of the people to be secure in their persons, houses, papers, and effects” against “unreasonable searches and seizures.”  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Warrantless searches are per se unreasonable, subject to limited exceptions.  Burbach, 706 N.W.2d at 488.  One such exception allows police to search a suspect incident to the suspect’s arrest, provided that the arrest is supported by probable cause.  In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997).  If arresting officers have probable cause to arrest, they may search the suspect for weapons or evidence.  In re Welfare of T.L.S., 713 N.W.2d 877, 880 (Minn. App. 2006). 

            Officers have probable cause to arrest when “the objective facts are such that under the circumstances, a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.”  G.M., 560 N.W.2d at 695.  We apply an objective standard that is independent of the officers’ subjective intentions at the time of the arrest.  State v. Hawkins, 622 N.W.2d 576, 579-80 (Minn. App. 2001).  If the objective probable-cause standard is met, we will not invalidate an arrest or search “even if the officer making the arrest or conducting the search based his or her action on the wrong ground.”  State v. Olson, 482 N.W.2d 212, 214 (Minn. 1992).

            The state argues that the arresting officers had probable cause to arrest respondent for the crime of terroristic threats.  Minn. Stat. § 609.713, subd. 1 (2006) defines the crime of terroristic threats and provides:

Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another . . . or in a reckless disregard of the risk of causing such terror . . . may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both. 


“[T]errorize means to cause extreme fear by use of violence or threats.”  Sykes v. State, 578 N.W.2d 807, 811 (Minn. App. 1998) (citation omitted), review denied (Minn. July 16, 1998).  And the statute’s scope is not limited to spoken words that terrorize another individual; physical acts alone may constitute “terroristic threats.”  State v. Murphy, 545 N.W.2d 909, 916 (Minn. 1996).   

            Here, two pairs of individuals approached the officers within minutes of each other and told them that respondent had a gun around his waistband and was showing it to others.  And the first pair to approach the officers told them that respondent was talking about “capping” people.[3]  An officer testified that “capping” meant shooting someone.  Both officers testified that the individuals appeared frightened when they reported appellant’s conduct.  At the time, respondent was less than a quarter of a block from the officers and the individuals were able to identify respondent. 

            Based on respondent’s reported statement about shooting someone and his possession and display of a handgun, we conclude that a reasonable person had probable cause to believe that respondent was indirectly threatening to commit a crime of violence and that respondent was acting in reckless disregard of the risk of causing others to be in terror of that violent conduct.  Accordingly, we conclude that the officers had probable cause both to stop and to arrest respondent, and that the district court erred in suppressing the handgun and dismissing the complaint. 

            Reversed and remanded.



[1] Although we refer to this seizure as an arrest throughout the opinion, we do not decide whether, as a matter of law, the seizure was an arrest or stop.  For a discussion of that distinction in a variant fact situation, see State v. Balenger, 667 N.W.2d 133 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003).


[2] The state argues that the district court’s error will have a critical impact on the outcome of the case because the state’s prosecution of respondent for ineligible possession of a firearm has little, if any, probability of success without the suppressed handgun.  See State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (defining “critical impact”).  Because the district court dismissed the complaint upon its suppression of the handgun, we agree.  Respondent does not appear to dispute the critical impact of the district court’s suppression order.

[3] Respondent disputes the district court’s finding that the first pair of individuals told the officers that respondent made comments about “capping” people before the officers arrested him.  But the district court’s finding is supported by the testimony of one of the officers.  It is well established that we defer to the district court’s weighing of conflicting evidence.  State v. Miller, 659 N.W.2d 275, 279 (Minn. App. 2003), review denied (Minn. July 15, 2003).