STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Marcus Maurice Mack,
Filed July 28, 1998
Olmsted County District Court
File No. K19633204
Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)
Duane A. Kennedy, 724 First Avenue Southwest, 4 Durst Building, Rochester, MN 55902 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.
At approximately 10:00 p.m. on October 30, 1996, a robbery occurred at the Brentwood Motor Inn. The desk manager described the robbery suspect as a black male, approximately 5'9", 20-30 years old, stocky, approximately 160 pounds, wearing a dark-colored stocking cap, a dark-colored pullover sweatshirt with a pocket on the front, and dark nylon sweatpants.
Sergeant Terry Mays responded to the call and drove around the immediate area of the Brentwood Inn. At about 11:00 p.m., he noticed an individual, later identified as Mack, run across Sixth Avenue, which was approximately two blocks from the Brentwood Inn. Mack fit the physical description given to Mays and also was wearing a dark, hooded sweatshirt. Upon taking a closer look, Mays noticed that Mack's race also matched the description of the robbery suspect.
Mays approached Mack and ordered him to stop. When Mays requested some identification, he noticed Mack appeared nervous and seemed to want to put his hand in his pocket. When Mays attempted to prevent Mack from putting his hand back in his pocket, Mack ran away. While in pursuit, Mays noticed Mack throw a white sock over a fence. Shortly thereafter, Mack was apprehended and the sock was recovered. The officers discovered 21.5 grams of cocaine in the sock.
Mack was charged with four counts of controlled substance crime violations. At the omnibus hearing, Mack argued that the evidence must be suppressed because Mays violated his Fourth Amendment right against unreasonable search and seizure. Mack's motions were denied. Mack then agreed to submit his case to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). Mack was found guilty of controlled substance crime in the second degree and sentenced to 68 months. This appeal followed.
As a general rule, officers may not search or seize an individual without an arrest warrant, search warrant, or probable cause. Wold v. State, 430 N.W.2d 171, 174 (Minn. 1988). One exception to this general rule allows officers, under certain circumstances, to stop or seize an individual "for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." Id. (quoting Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968)).
In this case, there is no dispute that Mack was seized. Mays, while in uniform, exited his patrol car, ordered Mack to stop, and told him that he wanted to talk to him. In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993) (finding "seizure" occurs once officer orders suspect to stop.)
Having concluded that Mack was seized, this court must determine whether Mays articulated sufficient facts justifying a seizure. State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). For an investigatory stop or seizure to be lawful, the police officer must be able to point to specific, articulable facts that would lead to a reasonable suspicion that an individual is or may be engaged in criminal activity. Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 2135 (1993); Terry, 392 U.S. at 21-22, 30, 88 S. Ct. at 1880, 1884-85. Based upon all the circumstances, the officer must articulate at the omnibus hearing a "particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981); Cripps, 533 N.W.2d at 391.
Mays articulated sufficient facts at the omnibus hearing to justify a stop. Mays suspected Mack of the robbery based on the similarities between Mack and the description of the robber, namely, the height, weight, hooded sweatshirt, age, and race. Mack was stopped two blocks away from the Brentwood Inn and was acting nervous when Mays ordered him to take his hand out of his pocket. These facts, taken as a whole, provide a sufficient basis to justify a limited Terry stop. Cf. State v. Saffeels, 484 N.W.2d 429, 430-31 (Minn. App. 1992) (finding reasonable, articulable suspicion where suspect matched description of armed robber, was picked up near scene of crime, and avoided eye contact with police), review denied (Minn. June 1, 1992).