This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
State of Minnesota,
James Darrell Vandevender,
Reversed and remanded
Stearns County District Court
File No. K1-06-4256
Lori Swanson, Attorney General, 1800
Janelle P. Kendall,
Jacob T. Erickson, Vermeulen Law Office, P.A.,
Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Minge, Judge.
September 4, 2006, two
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 do not consider matters unless argued and considered in the court
below. Roby v. State, 547 N.W.2d 354, 357 (
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.
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.” State
v. Othoudt, 482 N.W.2d 218, 221 (
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;
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 (
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 (
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. 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.
 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
 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 (
 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 (