This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-28

 

State of Minnesota,

Respondent,

 

vs.

 

Jimmy Dawayne Lester, a/k/a Dwayne Bass,

Appellant

 

Filed September 25, 2007

Reversed

Randall, Judge

Dissenting, Halbrooks, Judge

 

Ramsey County District Court

File No. K7-05-1665

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Parker, Judge.[1]

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from conviction for felon in possession of a firearm and order denying postconviction petition challenging the conviction, appellant argues that the seizure that occurred when police told him to stop as he walked away from a vehicle that had drawn a citizen’s suspicions was not supported by an articulable suspicion.  The citizen was merely reporting that three black men were sitting in a lawfully parked car for what she considered to be an unusual length of time.  Appellant also argues that his attorney’s failure to challenge the seizure denied him the effective assistance of counsel.  Because there are no facts supporting a reasonable articulable suspicion of criminal activity, we reverse.

FACTS

            On May 12, 2005, at approximately 2:00 p.m., a 911 complaint was received from a caller who worked at Selene’s Hair Salon.  The caller indicated to the 911 dispatcher that she was calling because there were three guys “parking in the front and has been like about forty-five minutes [mixed conversation] and they just parking on the street and I’m just kinda [wary] . . . .”  The dispatcher asked the caller:  “Why are you [wary], what are they doing?”  The caller replied:  “I don’t know.  They are just inside the car.  I just think I don’t feel comfortable, ya know.” 

 

            The caller identified the vehicle as a maroon, four-door car.  She also identified the men inside the vehicle as three black males.  Although the caller told the dispatcher that she had not seen any weapons, she stated “[h]e has been there for too long, ya know, and I’m tired of complaining, ya know.”  The dispatcher responded that someone would be sent to talk to them.

            The dispatcher referred the call to Officers Trygve Sand and Robert Buth.  The dispatcher requested that the officers

swing by Selene’s Hair Salon, 912 Arcade. [inaudible] suspicious, three males have been parked in front of that business staring at the employee there sitting in a maroon, four-door vehicle, [inaudible] three black males, [inaudible] like to be told to move along. 

 

Approximately one minute later, Officer Sand and his partner arrived at the scene and found a vehicle meeting the description with three occupants.  The officers passed the vehicle, conducted a U-turn, pulled in directly behind the maroon vehicle, and turned on their emergency lights.  The officers did not turn on the siren.   

            As the squad car came to a complete stop, two individuals exited the vehicle and proceeded to walk in the southbound direction, away from the officers (the driver remained in the vehicle).  Officer Sand then directed the two individuals to walk back to the car where they were walking away from.  One of them, later identified as Tyrone Burton, walked back after the first time he was asked.  However, the other individual, later identified as appellant James Dawayne Lester, continued walking away. 

            Officer Sand commanded appellant three times to come back to the car.  After the third command, appellant slowly walked back to the side of the car.  According to Officer Sand, appellant had both hands in his front pockets, and it seemed like he was trying to adjust something, so he asked appellant to take his hands out of his pockets.  Officer Sand repeated this command three times, and after the third time, appellant responded by taking his hands out of his pockets.  Officer Sand, who was standing about five feet away from appellant, observed appellant pull a black handgun out of his right pocket.  Appellant dropped the gun “to the ground into the gutter area right in front of him between the car and the gutter.”  A black firearm was subsequently recovered from the gutter. 

            Appellant was charged with possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (2004).  An omnibus hearing was conducted on May 27, 2005.  Defense counsel did not challenge the legality of the stop or move to suppress the firearm evidence at the omnibus hearing.  On July 26, 2005, a jury found appellant guilty of possession of a firearm by an ineligible person, and the district court sentenced appellant to 60 months in prison.  Appellant filed a direct appeal to this court.  However, appellant subsequently moved to stay the appeal to pursue postconviction relief from the district court on the basis of ineffective assistance of counsel.  This court granted appellant’s motion to stay the appeal.

            On August 22, 2006, appellant filed a petition for postconviction relief claiming ineffective assistance of counsel due to defense trial counsel’s failure to challenge the legality of the stop.  Following an evidentiary hearing at which testimony was received from appellant’s defense trial counsel, the postconviction court denied appellant’s request for relief.  In its attached memorandum, the court held that appellant failed to meet his “burden of proving that his trial counsel’s representation fell below an objective standard of reasonableness.”  The court also found that even if appellant had met this first prong, his claim of ineffective assistance of counsel would nevertheless fail.  The court held that “[b]ecause the police were able to articulate a reasonable suspicion . . . to justify an investigatory seizure, the seizure was defensible and legal” and, therefore, there was no reasonable probability that a motion to suppress would have been granted.  Appellant subsequently reinstated this appeal.

D E C I S I O N

            Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.  The court abuses its discretion if it misinterprets or misapplies the law.  State v. Babcock, 685 N.W.2d 36, 40 (Minn. App. 2004), review denied (Minn. Oct. 20, 2004).  “A postconviction court’s factual findings will be sustained if they are supported by sufficient evidence, but we independently determine the law as it applies to the facts.”  Johnson v. State, 733 N.W.2d 834, 836 (Minn. App. 2007) (citations omitted).

            Appellant argues that he was unlawfully seized when police ordered him to stop as he walked away from the vehicle.[2] This court reviews a district court’s determination of the legality of a limited investigatory stop de novo.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  “In doing so, we review the findings of fact for clear error giving due weight to the inferences drawn from those facts by the district court.”  Id. (quotation omitted).    

            To make a legal investigatory stop or seizure, the police must be able to show a reasonable suspicion based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”  State v. Davis, 732 N.W.2d 173, 182 (Minn. 2007)(quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).  The Minnesota Supreme Court has stated that “reasonable suspicion requires something more than an unarticulated hunch, [and] that the officer must be able to point to something that objectively supports the suspicion at issue.”  Id. (citation omitted).  The court has further stated that the “totality of the circumstances” will be
considered “when determining whether reasonable suspicion exists, and seemingly innocent factors may weigh into the analysis.”  Id. (citing State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998)). 

            Appellant argues that since police had no indication that he was engaged in any criminal behavior, the seizure was unreasonable.  We agree.  In some circumstances, “innocent activity might justify the suspicion of criminal activity.”  State v. Johnson, 444 N.W.2d 824, 826 (Minn. 1989).  However, this court has stated that articulable, objective facts that would justify an investigatory stop are “facts that, by their nature, quality, repetition, or pattern become so unusual and suspicious that they support at least one inference of the possibility of criminal activity . . . .”  State v. Schrupp, 625 N.W.2d 844, 847-48 (Minn. App. 2001) (emphasis added).  There are no such facts in the record before this court. 

            Here, there are no allegations of illegal or improper parking, nor any allegation of suspicious movement or conversation among the occupants of the vehicle.  The vehicle was parked across the street and was not even directly in front of the salon.  The record does not indicate there was any contact between the salon employee (the 911 caller) and the occupants of the vehicle.  The record reflects a complete lack of any indicia of illegal activity.  The 911 caller simply decided that after just 45 minutes, it was “suspicious” that three black males were still sitting in a parked car.  When the 911 dispatcher asked the
caller “[w]hy are you [wary], what are they doing,” the caller responded:  “I don’t know.  They are just inside the car.”  The caller stated that she had not seen any weapons, just that “[h]e has been there for too long” and she was “tired of complaining.”  Dispatch then described the vehicle to the patrol officer and suggested the occupants of the vehicle “be told to move along.” 

            This case is similar to State v. Day, where the district court admitted evidence that was obtained after a uniformed police officer pulled in near the defendant at a gas station, exited his squad car, and summoned the defendant to approach his squad car and provide certain information and respond to questioning.  461 N.W.2d 404, 405 (Minn. App. 1990), review denied (Minn. Dec. 20, 1990).  The defendant provided the officer with his name, address, and date of birth, and upon checking the defendant’s license status and premised on the officer’s earlier observation that the defendant was driving, the officer cited the defendant for driving after revocation.  Id. at 406.  On appeal, this court concluded that “the summoning by the police officer, who was in uniform and armed, requiring appellant to approach the officer’s squad car to provide identification and to respond to questioning, constitutes a restraint and seizure under the fourth amendment.”  Id. at 407.  This court then held that “the police officer indicated no basis for suspicion of crime, nor is there any evidence he had actually formulated any suspicion of criminal activity.”  Id.

 

            As in Day, where this court noted there was no evidence to suggest that the “conduct of appellant in the parking lot was unlawful,” there is nothing in the record here to suggest that appellant’s conduct in the parked car was unlawful.  Id.  This court has noted that “[a]bsent a basis for suspecting [a defendant] of misconduct, the balance between the public interest in crime prevention and [a defendant’s] right to personal security and privacy tilts in favor of freedom from a seizure to obtain information.”  Id.(emphasis added).  Such is the case here.

            We take no issue with the 911 caller placing the call to the police, nor with dispatch forwarding the complaint to police in the area.  However, the 911 caller did not articulate any facts which were so unusual and suspicious that they would support the reasonable, articulable suspicion of criminal activity necessary to justify an investigatory seizure [investigatory “look-see” – okay; investigatory “seizure” – no] of appellant.  Individuals sitting in a legally parked vehicle having a conversation on a rainy afternoon do not supply police with reasonable, articulable suspicion of criminal activity.  A jumpy or “concerned citizen’s” 911 complaint that three black males sitting in a parked car for 45 minutes looked suspicious to her, without more, does not rise to the level of reasonable articulable suspicion of criminal activity, at least none that an independent judiciary should validate.  There are simply no facts in the record to support an inference of criminal activity. 

 

            Appellant’s claim of ineffective assistance of counsel is based solely on defense counsel’s failure to challenge the legality of the seizure.  Because we reverse the determination of the district court on that issue, we need not address whether appellant was denied the effective assistance of counsel.

            Reversed. 

 

 

HALBROOKS, Judge (dissenting)

            I respectfully dissent.  Unlike the majority, I would affirm appellant’s conviction.  First, it is undisputed that the legality of the investigatory stop was not challenged in an omnibus or pretrial hearing before the district court.  It is well settled that this court will generally decline to consider arguments not raised in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Furthermore, without an omnibus hearing on the issue, there are doubts as to whether the record is adequate for our review.  See Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001) (concluding that because the factual record with respect to an issue not raised before the district court was insufficient, resolution of that issue was not in the interests of justice).  Because appellant waived the issue by failing to raise it in the district court, I would decline to address the issue on appeal. 

            Second, although the issue was not raised in the district court, I believe the evidence contained in the record supports a determination that the seizure was constitutional.  To conduct an investigative seizure, a law-enforcement officer must have a reasonable, articulable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968).  The officer need not be absolutely certain of the possibility of criminal activity, but he cannot satisfy the test of reasonableness by relying on an “inchoate and unparticularized suspicion or ‘hunch.’”  Id. at 27, 88 S. Ct. at 1883.  Nor will the officer’s subjective good-faith belief suffice.  Id. at 22, 88 S. Ct. at 1880.  Yet, the threshold required to support a stop is very low, and an actual violation is not necessary.  State v. Lopez, 631 N.W.2d 810, 814 (Minn. App. 2001), review denied (Minn. Sept. 25, 2001).  Sometimes even lawful conduct can provide the suspicion that criminal activity is afoot.  United States v. Sokolow, 490 U.S. 1, 9, 109 S. Ct. 1581, 1586 (1989).

            Here, a concerned citizen called 911 to report what she considered to be suspicious activity.  The citizen identified herself as Irma and reported to the 911 dispatcher that three males had been sitting in a parked vehicle in front of her hair salon for about 45 minutes.  Irma told the dispatcher that she was suspicious of the three men and that she didn’t “feel comfortable” with their presence.  The 911 dispatcher contacted the police, informing them of three suspicious males who had been sitting in a car across the street from a hair salon for approximately 45 minutes “staring” at a hair-salon employee.  When the police arrived at the scene, the officers’ observations corroborated the complaint provided by Irma. 

            I believe that under these factual circumstances, the officers had reasonable articulable suspicion to conduct a limited investigatory stop for the purpose of responding to the citizen complaint.  The officers did not stop appellant on a mere whim or curiosity.  Rather, they were investigating a valid complaint by a concerned citizen regarding behavior that she considered to be suspicious.  See Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (indicating a tip provided by a private, identifiable citizen is presumed to be reliable because the informant can be held responsible for the tip).  Although the three men were exhibiting lawful conduct, even lawful conduct can provide the suspicion that criminal activity is afoot.  See Sokolow, 490 U.S. at 9, 109 S. Ct. at 1586.  Moreover, the information provided by the citizen is supportive of at least the possibility of criminal activity.  Accordingly, on this record, I cannot agree with the majority that the officers did not have a reasonable articulable suspicion to conduct a limited investigatory stop.