This opinion will be unpublished and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

A06-1438

 

State of Minnesota,

Respondent,

 

vs.

 

McClendon Miller,

Appellant.

 

Filed September 18, 2007

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 04067990

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant McClendon Miller challenges his conviction of ineligible person in possession of a firearm in violation of Minn. Stat. §§ 624.713, subd. 1(b); 609.11 (2004), arguing that the district court erred by denying his motion to suppress because the stop was not supported by reasonable suspicion.  We affirm.

D E C I S I O N

            A Minneapolis police officer and his partner were driving on Bryant Avenue when they heard ten gunshots fired in quick succession, less than a block away.  The officers drove their squad car toward the gunshots and saw two men running away from the approximate location of the gunshots.  The officers then witnessed the men jump into a van that was stopped in the middle of the street with its headlights on and both the passenger and side doors open.  As the van drove off with the doors open, the officers blocked the van’s path, at which point appellant exited the van and ran in the opposite direction.  One of the officers chased appellant into the backyard of a residence, where he saw appellant take a handgun from his waistband and drop it on the ground.  Once appellant was apprehended and escorted back to the van, the officer testified that he returned to the area where he saw appellant drop the handgun.  There the officer found a 9-mm semiautomatic handgun with its slide locked back, which occurs after the last round of a magazine is fired.  

            Appellant was charged with ineligible person in possession of a firearm in violation of Minn. Stat. §§ 624.713, subd. 1(b); 609.11 (2004).  He moved to suppress the firearm, arguing that the stop of the van was not supported by reasonable suspicion or probable cause.  The district court denied appellant’s motion, and he was convicted following a stipulated-facts trial.

            Appellant now argues that the gun should be suppressed because at the time of the stop the officers did not have any indication that a crime had been committed.  We disagree.

When reviewing pretrial orders on motions to suppress evidence, this court “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) (citation omitted).  We “review de novo a [district] court’s determination of reasonable suspicion as it relates to Terry stops . . . .”  In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997) (citation and footnote omitted).  When reviewing a district court’s determination of the legality of a limited investigatory stop, this court reviews findings of fact for clear error.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). 

It is undisputed by the parties here that the stop occurred when the squad car blocked the van’s path.  And “[a] brief investigatory stop requires only reasonable suspicion of criminal activity.”  State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003) (citation omitted).  Thus, the only issue before this court is whether the stop was supported by reasonable suspicion.

            The United States and Minnesota Constitutions protect against unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  “The brief seizure of a person for investigatory purposes is not unreasonable if an officer has a particular and objective basis for suspecting the particular person [seized] of criminal activity.”  Harris, 590 N.W.2d at 99 (quotation and citation omitted).  But “a mere hunch, absent other objectively reasonable articulable facts, will not justify a seizure.”  Id. (citation omitted).  Suspicion is reasonable if the stop was “not the product of mere whim, caprice, or idle curiosity.”  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996). 

“The officer may justify his decision to seize a person based on the totality of the circumstances and may draw inferences and deductions that might elude an untrained person.”  Harris, 590 N.W.2d at 99 (quotation and citation omitted).  The justification may be “based upon the officer’s experience that criminal activity may be taking place and that the individual with whom the officer is confronted may be armed and capable of immediately causing serious harm.”  Wold v. State, 430 N.W.2d 171, 174 (Minn. 1998).  Otherwise innocent acts may also be considered factors in forming a reasonable suspicion.  In re Welfare of M.D.R., 693 N.W.2d 444, 449 (Minn. App. 2005) (citing State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998)). 

            In Applegate v. Comm’r of Pub. Safety, police responded within minutes to an early-morning call reporting a burglary in progress at a large apartment complex.  402 N.W.2d 106, 107 (Minn. 1987).  Arriving at the complex minutes later, an officer observed a vehicle leaving the parking lot of the complex and followed the vehicle.  Id.  When the vehicle made two prolonged stops at two intersections, the officer pulled the vehicle over.  Id. at 107-08.  The court held that the officer had a particularized and objective basis for stopping the defendant based on the totality of the circumstances, including the fact that the officer responded to the area of the reported crime within minutes, there was “very little if any” traffic in the area, and the defendant probably saw the marked police car, adding significance to his prolonged stops.  Id. at 108-09.

We reject appellant’s argument that Applegate is distinguishable because in this case there was no underlying reported crime and the officers did not come upon a crime scene.  Here, the totality of the circumstances provided the officers with a greater objective basis for the investigatory stop than the officer had in Applegate.  The district court made a factual determination that the officer could correctly identify the sound of gunshots and the sound of ten gunshots in rapid succession alerted the officers to a possible crime.  And even if discharging a firearm did not constitute a crime, it was an act that properly contributed to the officers’ reasonable suspicion. 

            In addition, the officers immediately responded to their personal observation of a rapid succession of gunshots, which leads to a strong inference of general criminal activity.  And the inference of general criminal activity was strengthened and became particularized to appellant by the officers’ nearly contemporaneous viewing of appellant running away from the area from which the gunshots emanated.  Finally, the inference that appellant may have been involved in the criminal activity was supported by his immediate entrance into a waiting van, which then attempted to leave the scene in haste.

            We conclude the stop was justified because the totality of the facts presented the officers with a particular and objective basis to reasonably suspect that appellant was involved in criminal activity.  Because the investigatory stop was based on reasonable suspicion the district court’s denial of appellant’s motion to suppress the firearm he abandoned while being chased by police was not erroneous.

            Affirmed.