A04-1195

State of Minnesota,

Respondent,

vs.

David Natee,

Appellant.

Filed July 26, 2005

Affirmed

Hudson, Judge

Hennepin County District Court

File No. 03087132

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

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)

John M. Stuart, State Public Defender, Suzanne Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

Appellant David Natee appeals from his conviction of possession of a firearm by an ineligible person, arguing that police who received a report of a robbery in the area did not have reasonable, articulable suspicion to stop him. Specifically, appellant argues that because the stop (1) occurred more than three hours after the robbery, (2) was based on a generic description of the robbery suspect, and (3) occurred in a busy urban area, from which the robbery suspect could have easily escaped in three hours, the stop violated his Fourth Amendment rights. We affirm.

FACTS

Appellant was found in possession of a handgun on December 8, 2003. He was subsequently charged with possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (Supp. 2002). Appellant moved to suppress the handgun, arguing that the officer who seized him and conducted a pat search did so without reasonable, articulable suspicion and, thus, violated his Fourth Amendment rights.

At the omnibus hearing, the arresting officer testified that, on December 8, 2003, he and his partner were on patrol in the vicinity of 28th Street and Bloomington Avenue when he spotted appellant walking on the sidewalk. Appellant caught the officer’s attention because “of his description and the clothing that he was wearing.” The officer stated that appellant fit the description given by a victim of a robbery that had occurred approximately three hours earlier south of appellant’s location. The victim reported that one of the robbery suspects “was a black male, approximately 5’7”, wearing dark blue or black pants, a dark blue or black coat.” Further, the officer testified that “the thing that stuck out in [the victim’s] mind was the tennis shoes that the suspect was wearing . . . they were dark blue or black shoes with a white line or stripe going down the sides.” And the victim told the officer that the shoe the robber was wearing “reminded her of a Nike tennis shoe, but it wasn’t a Nike because it didn’t have the swoosh, it was more of an upside down type of configuration.”

The officer also identified appellant in court and stated that, when he saw appellant on December 8, appellant “had dark pants, like dark black pants, as well as a dark jacket . . . [and] shoes which were black and they had like a white stripe or line going.” The officer testified that he and his partner “thought this was a possible match in our suspect, so [they] stopped him.”

Finally, the officer testified that, when he stopped appellant, he conducted a pat search because “the other information [he] received was that this suspect had a handgun. And [he] wanted to make sure before [he and his partner] talked to [appellant] that [appellant] wasn’t armed.” The officer stated that “when I got up to the jacket I could feel through the jacket what I could tell was a handgun.” Appellant was subsequently taken into custody.

The district court denied appellant’s motion to suppress the gun. In its oral explanation, the court pointed out that “the level of proof . . . to make a Terry stop is not the same as probable cause.” And the court stated, “[T]he officer indicated that although he had seen other people in the area and there was no question about whether he had arrested them or stopped them but the officer indicated that they did not meet all of the criteria given by the victim. So this was the first person who seemed to meet all of the criteria.”

Appellant subsequently opted for a Lothenbach proceeding and was found guilty by the district court. This appeal follows.

D E C I S I O N

“When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). In addition, a district court’s determination of reasonable, articulable suspicion as it relates to investigatory stops under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), is reviewed de novo. State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003). Where, as here, the facts are not in dispute, this court must “analyze the testimony of the officer[] and determine whether, as a matter of law, his observations provided an adequate basis for the stop.” Id. (quoting Berge v. Comm’r of Public Safety, 374 N.W.2d 730, 732 (Minn. 1985)).

First, it is axiomatic that the Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Minnesota v. Dickerson, 508 U.S. 365, 372, 113 S. Ct. 2130, 2135 (1993) (quotation omitted). And searches and seizures “conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions.” Id. (quotations omitted).

A police officer may stop and temporarily seize a person in order to investigate if the officer reasonably suspects that person of criminal activity. State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). “Reasonable, articulable suspicion requires a showing that the stop was ‘not the product of mere whim, caprice, or idle curiosity.’” Waddell, 655 N.W.2d at 809 (quoting State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996)). Thus, to meet this standard, “the officer’s suspicion must be based on specific, articulable facts.” Cripps, 533 N.W.2d at 391.

Appellant argues here, as he did before the district court, that the description relied on by the arresting officer as a basis for stopping him was too general to provide reasonable, articulable suspicion. In fact, appellant argues, allowing such a common description to suffice—when coupled with the three-hour span of time between the robbery and the search of appellant—equates to allowing the Minneapolis Police Department the right to search any young, African-American male in Minneapolis after a single crime is reported.

But at the omnibus hearing the officer pointed to the specific facts that he relied on in determining to stop appellant. Namely, appellant’s physical description: he is around 5’7” and African-American. And the clothes appellant was wearing: appellant “had dark pants, like dark black pants, as well as a dark jacket . . . and shoes which were black and they had like a white stripe or line going.” Both appellant’s physical description and his clothing closely matched the description of the robber as given by the victim. In addition, the officer testified that there were a number of people on the street at the same time as appellant that he did not stop—this fact adds credence to the officer’s assertion that appellant was stopped because he closely resembled the description given by the robbery victim. Accordingly, we conclude that the officer’s determination to stop appellant was supported by reasonable, articulable suspicion that appellant had been involved in criminal activity. See State v. Johnson, 444 N.W.2d 824, 825–26 (Minn. 1989) (stating that the officer must point to objective facts and may not base his or her determination on a “hunch”).

Finally, because the officer stopped appellant based on the fact that his description matched that of an armed robber, it is clear that a pat search was justified. See State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (“[a]n officer may conduct a limited protective weapons frisk of a lawfully stopped person if the officer reasonably believes that the suspect might be armed and dangerous and capable of immediately causing permanent harm”) (citing Terry, 392 U.S. at 27, 88 S. Ct at 1883). Thus, the pat search revealing the handgun in appellant’s pocket did not violate appellant’s Fourth Amendment rights.

Affirmed.