This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1185

 

In the Matter of the Welfare of

W.C.A.R.

 

Filed April 5, 2005

Affirmed

 Klaphake, Judge

 

Hennepin County District Court

File No. JX-03-66887

 

Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant W.C.A.R.)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant W.C.A.R. was adjudicated delinquent of being a felon in possession of a firearm in violation of Minn. Stat. §§ 624.713, subd. 1(b); .7181 (2002).  Appellant challenges the district court’s order refusing to suppress evidence discovered as the result of a pat search.  Appellant argues that the search was improper because it was based on an anonymous tip that lacked indicia of reliability.

            Because the officers who performed the search had a reasonable and articulable fear for their own safety based not on the anonymous tip, but on observations made at the scene, we affirm.

D E C I S I O N

This court reviews the district court’s determination of the legality of a limited investigatory stop and seizure de novo.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  The district court’s findings of fact are reviewed for clear error.  Id.  The parties here stipulated to the facts by submission of the police reports; no testimony was taken.  Although appellant argues that the record here is too limited, all of the district court’s findings are supported by information in the police reports and no evidence was introduced contradicting the reports.  We conclude that the district court’s findings are not clearly erroneous and that the issue before us is solely limited to the legality of the stop.

A police officer is permitted to make a limited investigatory stop, if the officer can describe specific and articulable facts that reasonably justify the intrusion.  Id.  If there are sufficient indicia of reliability, an anonymous tip can provide the basis for an investigatory stop.  In re Welfare of G.M., 560 N.W.2d 687, 690-91 (Minn. 1997).  Generally, this requires some facts about the informant that suggest reliability and some indication of the source of the informant’s knowledge.  Id. at 691.  A private citizen who is identified or identifiable is presumed to be reliable.  Rose v. Comm’r of Pub. Safety, 637 N.W.2d 326, 328 (Minn. App. 2001) (stating that informant who provides sufficient identifying information is not anonymous, even if not named), review denied (Minn. March 19, 2002).  The informant’s information must include some specific and articulable facts that support the allegation of criminal activity, beyond a bare assertion or mere opinion.  Id. at 329.

Here, the anonymous caller gave no identifying facts and no basis for the claim or the source of the caller’s knowledge that a group of young men was involved in suspicious activity.  An investigative stop and search based solely on the call would be improper.  But police may approach and question an individual in a public place without violating the Fourth Amendment.  State v. Martinson, 581 N.W.2d 846, 850 (Minn. 1998).  Thus the officers’ approach to appellant and his companions to ask some questions, even if this action was provoked by the anonymous call, was not a seizure.  The seizure here occurred when, having observed appellant step back and furtively drop something on the ground, the police officers drew their guns and ordered appellant to submit to a pat search.

Clearly, the officers did not observe any violation of the law, however minor, that independently would justify an investigatory seizure.  However, a court must consider the totality of the circumstances when determining if reasonable suspicion exists.  Id. at 852.  Innocent actions taken together can justify a suspicion that criminal activity is occurring.  Id. (approving seizure of airline passenger who walked around luggage area, picked up small suitcase and had one way airline tickets); see Terry v. Ohio, 392 U.S. 1, 5-7, 88 S. Ct. 1868, 1871-72 (1968) (describing observations of experienced detective, who observed two or three men pacing back and forth before a store over a period of time). 

In State v. Schrupp, 625 N.W.2d 844, 847-48 (Minn. App. 2001), review denied (Minn. July 24, 2001), this court suggested that Terry provides guidance for determining when seemingly innocent actions can justify suspicion of criminal activity: by the nature, quality, repetition or pattern of conduct or by conduct that is unusually furtive or evasive.  We concluded there that there must be a certain quality that elevates otherwise innocent conduct into the “category of unusual behavior” that would permit an inference of possible criminal activity.  Id. at 848.

Nervousness alone will not justify an investigatory search.  In re Welfare of M.D.B., 601 N.W.2d 214, 216 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000).  Location in a high crime area alone is not sufficient.  See State v. Fort, 660 N.W.2d 415, 419 (Minn. 2003).  Association with a known criminal, standing alone, is not sufficient.  State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998).  But we review the legality of an investigatory stop by considering the totality of the circumstances.  Britton, 604 N.W.2d at 87.

Evasive conduct can provide a basis for an investigatory stop.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d., 508 U.S. 366, 113 S. Ct. 2130 (1993).  In Dickerson, the defendant, upon leaving a building that officers described as a crack house, made eye contact with the officers and abruptly changed directions.  Id. at 842.  The Dickerson court, while disapproving of the search of the defendant, approved the officers’ initial stop of the defendant, because of this evasive conduct and presence at a building with a history of drug activity.  Id. at 843. 

Here, the police officers were responding to a suspicious activity call; the activity was occurring at night in a high crime area; the officers were outnumbered by the young men at the scene; there was a flashlight on top of the automobile that tended to support the anonymous caller’s description of suspicious activity; and appellant made a furtive gesture as the officers approached.  All of these factors taken together gave the officers a reasonable concern for their safety.

It is important to remember that the United States Supreme Court considered the question of officer safety to be the major justification for an investigatory search or seizure.  Terry, 392 U.S. at 25-27, 88 S. Ct. at 1882-83.  Terry approved a limited search for weapons when a police officer has

reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.  The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

 

Id. at 27, 88 S. Ct. at 1883.   

            Based on the totality of the circumstances, we conclude that the district court did not err by refusing to suppress evidence discovered as the result of the pat search.  We therefore affirm.

            Affirmed.