This opinion will be unpublished and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

A04-1224

State of Minnesota,
Respondent,

vs.

Sir Charles McCurtis,
Appellant.

 

Filed August 2, 2005

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 0305656986

 

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

 

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

 

John M. Stuart, Minnesota Public Defender, Theodora Gaïtas, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 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

 

STONEBURNER, Judge

 

            Appellant Sir Charles McCurtis challenges his conviction of felon in possession of a firearm and gross-misdemeanor possession of a pistol without a permit, arguing that the evidence was obtained as a result of an unconstitutional seizure and the district court erred by denying his motion to suppress.  Because, under the totality of the circumstances, officers had reasonable articulable suspicion to make an investigatory stop of appellant, we affirm.

FACTS

 

            On the relevant date, Officer John Biederman and Sergeant Andrew Schmidt of the Minneapolis Police Department were on foot patrol in downtown Minneapolis dressed in “raid gear” that clearly identified them as police.  Just after bar closing, Schmidt received a dispatch report of an anonymous tip[1] that there was a man with a gun in the Gay 90’s parking lot.  The suspect was described as a black male wearing a blue and white hat and blue jeans. 

            Biederman and Schmidt began walking toward the parking lot, and Schmidt saw two men, with clothes similar to those described by the tipster, walking with another man.  Schmidt knew all three by name: Adam Moore, DeMario Booker, and Sir Charles McCurtis, appellant.  Schmidt had spoken with Moore and Booker earlier in the evening.  Moore was wearing a blue hat and blue jeans.  Appellant was wearing a black, silver, and white hat and dark pants with a white stripe. 

            Schmidt knew that all three had histories of activity with the Mickey Cobras gang, a faction of the Vice Lords gang.  And Schmidt knew that Moore and appellant had been previously arrested while carrying firearms.  Schmidt pointed the three out to Biederman and called out something like, “Hey guys, come here” to the three men.  The officers testified that in their experience it was common for someone in a group to pass a weapon or other contraband to another member of the group, therefore they decided to investigate all three men in this group.

            Moore came toward Schmidt, but appellant and Booker walked away from the officers at a faster pace.  Schmidt had specific training in Minneapolis gang activity from having supervised the Gang Strike Force.  He was surprised that Booker did not respond to his request because he, Moore, and Booker knew each other, Moore and Booker usually approached Schmidt when they saw him, and the three had talked earlier in the evening.

            Biederman, who also recognized Moore and Booker and was aware that they were “fairly serious gang members” from Minneapolis who had been “arrested a number of times for violent crimes, including crimes involving handguns” went after Booker and appellant.  Biederman identified himself as a police officer, and when they failed to stop, grabbed them by their clothing.  Booker stopped.  Appellant continued forward and as Biederman pulled on his jacket, appellant spun around toward Biederman with a handgun in his hand.  Appellant dropped the handgun, which hit Biederman’s thigh then dropped to his foot.  Schmidt heard a “clang” and saw a handgun at Biederman’s feet.  Appellant, who was within a foot of Biederman when the gun dropped, spun away and fled, running north on Hennepin Avenue.  Biederman picked up the gun and chased appellant.

            Officer Heidi Weeks, who was also in the vicinity and had heard the dispatch, saw Biederman grab appellant and saw appellant running away.  She joined in the pursuit and ordered appellant to stop, but he continued to run, removing his jacket and throwing it on the ground as he ran. 

            Officer John LaLuzerne was in a squad car when he saw appellant running, being chased by Weeks.  LaLuzerne testified that appellant matched the description given in the “person-with-a-gun” tip.  LaLuzerne got out of his squad car, drew his gun, and ordered appellant to stop running, show his hands, and get on the ground.  Appellant stopped and turned but again tried to run.  He was stopped after about two steps by Weeks and other officers with their guns drawn.  Appellant was arrested and charged with felon in possession of a firearm and possession of a pistol without a permit.  The district court denied his motion to suppress.  Appellant was found guilty of both charges by a jury and sentenced.  This appeal followed.

D E C I S I O N

 

            When reviewing a pretrial order on a motion to suppress evidence, appellate courts 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).  We give deference to the district court’s findings of fact unless they are clearly erroneous.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  The district court gave its ruling from the bench, stating only that, based on the tip and the officer’s testimony, the officers had sufficient reason to inquire, that Moore matched the description given by the tipster, and the gun falling out justified appellant’s arrest.

            The parties agree that a seizure occurred, but appellant argues that the seizure occurred when Biederman physically grabbed his jacket, and the state contends that the seizure occurred when Schmidt called to the three men to come to him.  A seizure occurs if

in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.  Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

 

In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quoting United States v. Mendenhall,446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)).  “[G]enerally the mere act of approaching a person who is standing on a public street . . . and asking questions is not a ‘seizure.’”  Id. at 782 (emphasis omitted).  In a recent case, we concluded that a defendant was not seized when officers followed him out of a bus shelter and asked him to return to answer some questions, but was seized “the moment [the officer] told him that he was going to pat him down and search for weapons and narcotics.”  State v. Ingram, 570 N.W.2d 173, 176 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997).  Given Schmidt’s relationship with Moore and Booker, we conclude that his request for the group to “come here” was not a seizure, but seizure occurred when Biederman grabbed appellant’s jacket.

            A limited investigative stop is lawful if the state can show that the investigating officers had 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).  A brief investigatory stop requires only reasonable suspicion of criminal activity, rather than probable cause.  Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968).

            An officer may base an investigative stop on an informant’s tip if the tip has sufficient indicia of reliability.  In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn. 1997).  Appellant argues that the anonymous tip about a person with a gun in this case lacked sufficient indicia of reliability to justify an investigative stop.  In assessing the reliability of a tip, courts examine the informant and the basis of the informant’s knowledge in light of all of the circumstances.  Id.  Case law involving Terry stops and the reliability of informant tips focuses on two factors: 1) the sufficiency of the informant’s self-identification and 2) the existence of information or objective facts giving at least some indication as to why the citizen-informant believes the suspect is engaging in illegal behavior.  Rose v. Comm’r of Pub. Safety, 637 N.W.2d 326, 328 (Minn. App. 2001), review denied (Minn. Mar. 12, 2002).  See also Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985); Playle v. Comm’r of Pub. Safety, 439 N.W.2d 747, 748 (Minn. App. 1989) (discussing enhanced reliability of tip when caller, who did not give his name, identified himself as an employee of a particular restaurant such that caller could be found and held accountable for information he gave).  Neither factor is independently dispositive, and the overall determination of reasonable suspicion is based on the “totality of the circumstances.”  Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000) (citing Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)).

In this case, because the tipster did not give any identifying information and did not state a basis for the tip, the tip alone was not sufficient to justify an investigatory stop, and the state does not argue otherwise.  See Olson, 371 N.W.2d at 556 (involving a stop based on anonymous tip of a possible drunk driver, stating that if officers choose to stop on the basis of a tip alone, the anonymous caller must provide at least some specific and articulable facts to support a bare allegation of criminal activity).

            If an anonymous tip alone is not sufficient to give rise to reasonable suspicion, corroborating evidence combined with the tip may be sufficient to establish reasonable suspicion for an investigative stop.  See Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 2329 (1983) (rejecting a rigid approach to evaluation of reliability of tips in context of probable cause to support issuance of a warrant and reiterating that probable cause is determined under totality of circumstances standard).  The state argues that, in this case, the tip, combined with the officer’s nearly instantaneous spotting of two individuals at the location identified by the tipster, wearing clothing described by the tipster and known by the officers to be gang members with prior arrests involving firearms, plus appellant’s and Booker’s evasive conduct when asked to approach the officers sufficiently established reasonable suspicion for an investigative stop.  We agree. 

            An officer’s awareness of a suspect’s criminal history or criminal involvement with offenses similar to the offense under investigation is part of the totality of the circumstances that may support an officer’s reasonable suspicion for an investigatory stop.  See, e.g. State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980) (holding police knowledge that suspect may have been involved in homicide and, a year earlier, was involved in firearms-related incident were factors contributing to reasonableness of suspicion and propriety of Terry stop); State v. Bellikka, 490 N.W.2d 660, 663 (Minn. App. 1992) (stating officer’s knowledge that stopped vehicle’s owner had history of burglary offenses strengthened officer’s reasonable suspicion that driver was involved in recently committed burglary), review denied (Minn. Nov. 25, 1992); State v. Munoz, 385 N.W.2d 373, 376 (Minn. App. 1986) (holding officer’s knowledge of suspect’s prior sale and use of drugs, tendency to carry guns and previous felony convictions corroborated tip that suspect was carrying narcotics).

            The Minnesota Supreme Court has held in at least one case that evasive conduct alone created reasonable suspicion justifying an investigative stop.  See State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989), and evasive action in conjunction with other circumstances can constitute reasonable suspicion for an investigative stop.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (citing Johnson and holding that evasive conduct after eye contact with police combined with defendant’s departure from building with history of drug activity justified investigative stop).  Cf. Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324 (1983) (noting that a person approached by an officer “need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way”).  In this case, Booker and appellant did not simply assert their right to decline to speak with the officers, but walked quickly away, avoiding any contact with the officers.  Under the circumstances, this behavior constituted an evasive action.

            Appellant argues that even if the officers had adequate reason for an investigatory stop, they exceeded the scope of the stop by grabbing his jacket, impermissibly transforming the stop into an arrest.  This court rejected a similar argument in State v. Balenger, 667 N.W.2d 133, 141 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003), in which an officer grabbed a jersey, forcing a person to stop.  Noting that an investigative stop must be limited in scope and duration to its initial justification, we said in Balenger that there is no bright-line test separating a legitimate investigative stop from an unlawful arrest, and the determination of reasonableness must account for the fact that officers often must make split-second judgments in tense and uncertain situations.  Id.  We conclude that the officer’s grabbing of appellant’s jacket did not exceed the scope of the stop.

            Affirmed.