State of Minnesota, Respondent, vs. Marlo Marcus Andrews, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A03-2001

 

State of Minnesota,
Respondent,
 
vs.
 
Marlo Marcus Andrews,
Appellant.

 

Filed December 7, 2004

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 03038482

 

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

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, William L. Davidson, Special Assistant Public Defender, 150 South Fifth Street, Suite 1700, Minneapolis, MN  55402-4217 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a conviction of possession of a firearm without a permit, appellant Marlo Marcus Andrews argues that police who intended to stop appellant and another person for impeding traffic at an intersection and saw the other person discard what appeared to be marijuana lacked reasonable, articulable suspicion to seize appellant because neither his walking away from the seizure of his companion nor his reaction to the incident provided reasonable, articulable suspicion of criminal activity.  We affirm.

FACTS

            Minneapolis Police Officers David Ligneel and Richard Hand were on patrol in a marked squad car when they saw appellant and Leon Williams standing next to one another in a lane of oncoming traffic on Fremont Avenue.  After seeing cars change lanes to avoid hitting appellant and Williams, the officers made a U-turn and parked, intending to cite Williams and appellant for impeding traffic.

            The officers saw Williams throw a number of baggies to the ground, which they believed to be bags of marijuana.  As Ligneel got out of the squad car, he saw appellant begin to walk south across Broadway Avenue, appearing nervous, repeatedly looking back and forth.  Ligneel walked over to appellant and grabbed him by the left arm, and after appellant attempted to pull away, Ligneel used an arm-bar technique to restrain him.  Ligneel handcuffed appellant's left hand, and when Ligneel pulled appellant's right arm back, he saw a .25-caliber semi-automatic handgun in appellant's jacket pocket.

Appellant was charged by complaint with one count of felony possession of a firearm by an ineligible person.  Appellant moved to suppress evidence, arguing that the firearm was discovered as a result of an illegal search and seizure.  Following a hearing, the district court denied appellant's motion.  The district court specifically found the officers' testimony credible.  The district court determined that the officers had a reasonable basis to stop Williams and appellant for the offense of obstructing or impeding traffic; appellant acted in a manner indicating that he was about to flee; Ligneel's act of grabbing appellant's left arm to prevent him from leaving the scene was lawful; appellant's resistance justified the use of handcuffs; and even if Ligneel's seizure of appellant was improper, appellant's resisting arrest was an intervening circumstance justifying the use of handcuffs, which resulted in the discovery of the handgun.

The parties submitted the case to the district court for decision on stipulated facts.  The district court found appellant guilty as charged and sentenced him to 36 months in prison.   This appeal followed.

D E C I S I O N

I.

"In reviewing [district] court rulings on fourth amendment issues, this court accepts the [district] court's findings of fact, unless clearly erroneous, but independently applies fourth amendment case law to the facts so found."  State v. Saffeels, 484 N.W.2d 429, 430 (Minn. App. 1992), review denied (Minn. June 1, 1992).

The United States and Minnesota Constitutions protect against unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  When a police officer directs an individual to stop, it constitutes a "seizure" within the meaning of the Minnesota Constitution.  In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993).

Appellant argues that the police did not have a reasonable, articulable basis for stopping him.  But, "[g]enerally, if an officer observes a violation of a traffic law, no matter how insignificant the traffic law, that observation forms the requisite particularized and objective basis for conducting a traffic stop."  State v. Anderson, 683 N.W.2d 818, 823 (Minn. 2004).  Here, the officers' observed appellant impeding traffic in violation of Minneapolis City Code § 385 and Minn. Stat. § 169.21 (2002).  Therefore, the officers had a particularized and objective basis for stopping appellant to issue a citation for impeding traffic.

            Citing State v. Askerooth, 681 N.W.2d 353, 363 (Minn. 2004), appellant argues that Ligneel's reaching out and grabbing appellant's arm to effect the stop was not justified by the circumstances that rendered the initiation of the stop permissible because Ligneel could have effected the stop by simply telling appellant to stop.  In Askerooth, the supreme court concluded that article I, section 10, of the state constitution requires application of Terry principles to traffic stops.[1]  The supreme court explained the application of Terry as follows:

A Terry analysis involves a dual inquiry.  First, we ask whether the stop was justified at its inception.  Second, we ask whether the actions of the police during the stop were reasonably related to and justified by the circumstances that gave rise to the stop in the first place.

 

Id. at 364 (citations omitted).

The second Terry prong constrains the scope and methods of a search or seizure.  An initially valid stop may become invalid if it becomes "intolerable" in its "intensity or scope."  Thus, each incremental intrusion during a stop must be "‘strictly tied to and justified by' the circumstances which rendered [the initiation of the stop] permissible."  An intrusion not closely related to the initial justification for the search or seizure is invalid under article I, section 10 unless there is independent probable cause or reasonableness to justify that particular intrusion.

 

Id. (citations omitted) (quoting Terry v. Ohio, 392 U.S. 1, 17-18, 19, 88 S. Ct. 1868 (1968)).

            Here, the district court found:

As Officer Ligneel was proceeding to the rear of the squad car, he observed [appellant] begin to cross the street behind the squad car headed south across Broadway.  He observed [appellant] quickly look from side to side, a motion he associated with an effort to determine where [appellant] might run.

 

            When Officer Ligneel observed [appellant] begin to leave the scene, he grabbed [appellant] by the left arm.

 

            These findings demonstrate that there was independent reasonableness to justify Ligneel's grabbing appellant's arm rather than telling him to stop because it appeared to Ligneel that appellant was about to run.  Although commanding appellant to stop might have been sufficient, Ligneel could not know whether a command would be sufficient.  If a command were insufficient, simply telling appellant to stop would have given him a chance to start running and potentially evade police.  Under these circumstances, the minor incremental intrusion of grabbing appellant's arm was reasonably related to and justified by the circumstances that gave rise to the initial stop.

            When Ligneel grabbed appellant's arm, appellant resisted, causing the situation to escalate and requiring Ligneel to be more aggressive to control appellant.  Ligneel used an arm-bar technique to restrain appellant and then handcuffed appellant's left hand.  In the process of handcuffing appellant, Ligneel saw a gun in appellant's pocket and seized it.  Restraining and handcuffing appellant were reasonable in light of appellant's resistance.  See 4 Wayne R. LaFave, Search and Seizure § 9.2(d) (3d ed. 1996) (handcuffing a suspect during an investigatory stop is permissible "when necessary to thwart the suspect's attempt ‘to frustrate further inquiry'"); United States v. Purry, 545 F.2d 217, 220 (D.C. Cir. 1976) (when officer lawfully stopped defendant to investigate a robbery, the officer was entitled to maintain the status quo momentarily while obtaining more information and use of handcuffs to do so was reasonable).

II.

            Even if seizing appellant was improper in some way, resisting arrest and fleeing from a police officer can be intervening circumstances sufficient to purge the illegality of a primary taint, even if the resistance and flight are prompted by illegal police conduct,.  State v. Ingram, 570 N.W.2d 173, 178 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997).

            Appellant resisted Ligneel's effort to stop him.  Under Ingram, appellant's conduct provided the officers with probable cause to arrest appellant for obstructing legal process and, thus, the gun was discovered as the result of a lawful search incident to arrest.  See State v. Olson, 634 N.W.2d 224, 229-30 (Minn. App. 2001) (applying Ingram), review denied (Minn. Dec. 11, 2001).

            Affirmed.

*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1]  For purposes of analyzing appellant's argument, we assume that Terry principles apply to police stopping a pedestrian.