This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Theodore James Kolk,


Filed December 22, 1998


Amundson, Judge

Hennepin County District Court

File No. 97102562

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101;

Jay M. Heffern, Minneapolis City Attorney, Mary Ellen Fanning, Assistant Minneapolis City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for appellant)

William E. McGee, Fourth District Defender, Peter W. Gorman, Assistant Fourth District Defender, Elizabeth Fowlds, certified student attorney, 317 Second Avenue South, # 200, Minneapolis, MN 55401 (for respondent)

Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Mulally, Judge.[*]



This appeal involves a state challenge to a pretrial order suppressing evidence of a BB gun discovered after Kolk was stopped. We affirm.


On November 12, 1997, at approximately 10:00 p.m., Officer Christopher Bishop was called to investigate a burglary. The suspects were described to Officer Bishop as two young white males, one wearing a dark-colored hooded sweatshirt and the other wearing a stocking cap. At approximately 11:30 p.m., Officer Bishop was patrolling approximately 13 blocks from the site of the burglary, where he observed two males walking on the sidewalk, one wearing a black or dark blue hooded sweatshirt and the other wearing a black "hat." Officer Bishop testified at the hearing that one of the males was white and the other was black. Defendant Theodore Kolk was the white male.

When Officer Bishop saw the two males, he pulled his squad car over, without using the lights, exiting the car to speak with them. Officer Bishop did not recall whether he "asked" to speak with Kolk or whether he "told" Kolk that he wanted to speak with him. Upon Officer Bishop's approach, Kolk raised his hands over his head and informed the officer that he had a BB gun in the front jacket pocket of his sweatshirt.

Kolk was charged with the offense of carrying a BB gun in a public place in violation of Minn. Stat. § 624.7181 (1996). At the Rasmussen hearing, Kolk moved to suppress the evidence. Finding that Officer Bishop failed to articulate a reasonable basis to support his suspicions of criminal activity, the district court suppressed the evidence and dismissed the case against Kolk. The state now appeals, challenging the district court's suppression of the evidence.


In an appeal from a pretrial order suppressing evidence in a criminal case, we defer to the district court's determination unless "the state demonstrates clearly and unequivocally that the trial 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. Edrozo, 578 N.W.2d 719, 722 (Minn. 1998) (quoting State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977)). Because the charge against Kolk was dismissed, it is undisputed that the district court's order has had a critical impact on the prosecution of this alleged crime. Therefore, to prevail in this appeal, the state must clearly and unequivocally demonstrate that the district court erred in its suppression of the evidence of the BB Gun.

The state first contends that the district court erred in determining that Kolk was seized. Minnesota's standard for determining whether a seizure has occurred is whether a reasonable person in the defendant's position would believe that "he or she was neither free to disregard the officers questions nor free to terminate the encounter." State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). An officer does not effectuate a seizure by simply approaching a person standing in a public place or a driver sitting in an already stopped car. State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980). Further, the United States Supreme Court has repeatedly held that mere police questioning does not constitute a seizure. Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991). An encounter, however, may trigger Fourth Amendment scrutiny if it loses its consensual nature. Id.

In this matter, Officer Bishop and his partner, both in uniform, exited the squad car, walking toward Kolk to speak with him. Bishop admitted at the hearing that, at the point of his approach, Kolk was not free to leave. More importantly, it is apparent that Kolk was greatly influenced by Officer Bishop's show of authority and, as a result of the request, immediately raised his hands in the air and informed the officer of his BB gun. The circumstances surrounding this encounter indicate that the situation was one in which Kolk had reason to believe that he was neither free to leave or disregard Officer Bishop's questioning. In any event, the district court did not err in its finding that Officer Bishop's actions constituted a seizure, triggering Fourth Amendment protections.

The second question to be considered is whether Officer Bishop articulated sufficient facts to justify the stop. Under certain circumstances, officers may stop an individual "for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." Wold v. State, 430 N.W.2d 171, 174 (Minn. 1988) (quoting Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968)). For an investigatory stop to be lawful, the 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. Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880. Evidence seized as a result of an unlawful stop may be excluded. Id. at 12-13, 88 S. Ct. at 1875.

The standard for determining the officer's reasonableness in making a stop is an objective one. Based upon all the circumstances, the officer must have 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); see also State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989) (holding officer must be able to point to something that objectively supports position).

In ruling on Kolk's motion to suppress, the district court stated on the record that

the testimony as I heard it was that Mr. Kolk was stopped in an area 13 blocks from the crime scene, a crime scene where the crime occurred an hour and a half before. So he was not stopped close in time to the crime. He did not meet the description, nor did his companion meet the description given of the suspects. And for that reason I am finding that the officer has failed to articulate a reasonable basis to support a belief that Mr. Kolk was engaged in criminal activity, and I am suppressing the gun.

The district court found that Officer Bishop's observation of Kolk and his companion was too distant in both time and location from the burglary to justify a reasonable basis for the stop. Additionally, the district court found that Officer Bishop's testimony regarding the description of Kolk and his companion did not sufficiently match that of the burglary suspects so as to constitute a reasonable, articulable basis for the stop. The state has failed to clearly and unequivocally demonstrate that the district court erred in its finding that Officer Bishop's stop of Kolk was unlawful. The district court acted properly in suppressing the evidence of the BB gun.


[*]Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.