Opinion
No. C3-98-1498.
Filed January 26, 1999.
Appeal from the District Court, Hennepin County, File No. 97091649.
Michael A. Hatch, Attorney General, and
Jay M. Heffern, Minneapolis City Attorney, Cheri A. Townsend, Assistant City Attorney, (for appellant)
William E. McGee, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, (for respondent)
Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant State of Minnesota challenges the district court's suppression of a gun from evidence, claiming the arresting officer had the reasonable articulable suspicion of criminal activity necessary to support a stop and frisk. We affirm.
DECISION
A Minneapolis police officer, while on patrol, was waved over by an individual who told the officer that three black males had just received some guns and were arguing, and that he thought somebody was going to get shot. The individual pointed to a house and indicated the three people were behind it. The individual neither gave his name, nor described the persons in question even though the officer asked him to do so. The officer testified that the individual was "kind of scared said he didn't really want to be a part of it. He just said, `I know something's gonna go on there and somebody should go back there.'"
The officer called for backup support and drove his car around the block and into the alley. He parked his car and began to walk up the alley when he observed five or six black males in the back yard of a side-by-side double bungalow two lots and one building away from the house pointed at by the individual. The men were drinking beer in the yard. The officer testified that he observed no sign of an argument. The officer pulled his gun out, trained it on the individuals, and ordered the men to put their hands up. Within minutes, the backup officers arrived. At the officer's request, one of the backup officers began to frisk the men. Before frisking respondent, the officer asked whether he had any weapons. Respondent informed him that he had a gun, which the officer then retrieved from respondent's right rear pocket. Respondent was subsequently charged with possession of a pistol without a permit.
A Rasmussen hearing was held on August 10, 1998. The district court found that the officer did not articulate a reasonable suspicion that respondent was engaged in, or about to be engaged in, criminal activity. The district court suppressed the gun from evidence.
Under the Minnesota Rules of Criminal Procedure, the prosecution may appeal "in any case, from any pretrial order of the trial court * * *." Minn.R.Crim.P. 28.04 subd. 1(1). In order to prevail on a pretrial appeal from an order suppressing evidence in a criminal prosecution, the state must establish
`clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.' However, when reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court's decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.
State v. Othoudt , 482 N.W.2d 218, 221 (Minn. 1992) (quoting State v. Webber , 262 N.W.2d 157, 159 (Minn. 1977)).
Here, because there are no facts in dispute, we review the facts and make an independent determination of whether the evidence was properly suppressed. Generally, the search or seizure of an individual is not constitutionally permissible unless the officer making the search or seizure has an arrest warrant, search warrant, or probable cause to arrest. Wold v. State , 430 N.W.2d 171, 174 (Minn. 1988). However, in certain circumstances officers may "stop and frisk" individuals to investigate possible criminal behavior even without the probable cause otherwise necessary to make an arrest. Id. (citing Terry v. Ohio , 392 U.S. 1, 22, 88 S.Ct. 1868, 1880 (1968)).
"An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 695 (1981). "Whether the officer has acted reasonably depends on the `specific reasonable inferences' which the officer is entitled to draw from the facts in light of his or her experience." State v. Crook , 485 N.W.2d 726, 729 (Minn.App. 1992), review denied (Minn. Aug. 4, 1992) (quoting Terry , 392 U.S. at 27, 88 S.Ct. at 1883). The officer must have a "particular and objective basis for suspecting the particular person stopped of criminal activity." Cortez , 449 U.S. at 417-18, 101 S.Ct. at 695.
An investigative Terry stop need not be based upon the officer's personal observation. In re Welfare of G.M. , 560 N.W.2d 687, 691 (Minn. 1997). Instead, the officer may base an investigative stop on an informant's tip if the tip has sufficient indicia of reliability. Id. In assessing the indicia of reliability of a tip, courts examine the credibility of the informant and the basis of the informant's knowledge in light of all the circumstances. Id.
Tips vary in reliability from an anonymous telephone tip to a face-to-face tip by a known informant. State v. Warren , 404 N.W.2d 895, 897 (Minn.App. 1987). Where a tip is given by a face-to-face informant who may be traced, there is a greater presumption of reliability because the tipster is less likely to give false or misleading information. State v. Davis , 393 N.W.2d 179, 181 (Minn. 1986).
Assessment of the informant's basis of knowledge involves two primary factors. First, the quantity and quality of detail in the informant's report are important. See Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 2416 (1990) (noting that the details of the informant's report are important in assessing the weight to give the tip). Second, the officer's independent verification of the details in the informant's report is important in assessing the informant's basis of knowledge. Id. at 331-32, 2417.
Here, the record indicates the informant was not previously known to the officer and did not give his name. Further, the informant was not in a vehicle, and there was no evidence indicating the informant could be traced. We thus conclude this informant does not have the same indicia of reliability as face-to-face informants whose identities are more easily traceable.
The level of detail in the tip does little to support its reliability. The officer testified that the informant told him the location of the persons in question, that the persons had just received guns and were arguing, and that the informant thought "something's gonna go on there * * *." However, the informant, even when prompted by the officer, did not give any description of the individuals in question except to say they were black. Because the record indicates this was a largely African American neighborhood, the skin color of these individuals was not an important descriptive feature. Thus, the only fact tending to reinforce the tip's credibility was the close proximity of the informant to the actions he was describing.
The officer's independent verification of the details of the tip did little to corroborate it. The tip specified three individuals at a particular location. The officer observed five or six individuals two lots down. The tip specified that the individuals were arguing and about to fight. The officer testified that he observed five or six individuals in a yard drinking beer, with no sign of an argument. The only aspect of the tip corroborated by the officer was the general location of the individuals and the color of their skin. Because the tip in question came from an anonymous informant, lacked detail, and was almost wholly uncorroborated, we conclude the tip failed to establish the reasonable articulable suspicion necessary to support a stop.
Moreover, because the officer testified that he did not see anything to indicate criminal activity was occurring or was about to occur, the officer lacked a particular and objective basis for suspecting respondent of criminal activity. We conclude the district court properly determined the officer may not, consistent with the Fourth Amendment, stop and frisk individuals based upon a relatively undetailed, anonymous tip where none of the important details of the tip are corroborated and the officer sees no sign of criminal activity. Therefore the district court did not err in suppressing evidence obtained as a result of the search.