Opinion
No. C7-98-337.
Filed January 5, 1999.
Appeal from the District Court, Hennepin County, File No. 97082043.
Michael A. Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, (for respondent)
William E. McGee, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, (for appellant)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
This appeal is from a judgment of conviction for first-degree controlled substance offense in violation of Minn. Stat. § 152.021, subds. 2(1), 3(a) (1996). After the trial court denied his motion to suppress evidence, Jeremy O. Loudermilk waived a jury trial and stipulated to the facts in order to expedite appellate review of the suppression issue. Because we conclude the police officer had a reasonable, articulable suspicion justifying the investigative stop, we affirm.
DECISION
In reviewing a pretrial suppression order where the facts are not in dispute, we independently examine 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).
Loudermilk argues he was seized when the first officer began questioning him as he attempted to get into a taxi. However, no seizure takes place when an officer approaches a citizen and questions him. Florida v. Royer , 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324 (1983); see also In re Welfare of E.D.J. , 502 N.W.2d 779, 782 (Minn. 1993) (" [G]enerally the mere act of approaching a person who is standing on a public street or sitting in a car that is parked and asking questions is not a `seizure.'" (citations omitted)). A seizure occurs "`when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.'" E.D.J. , 502 N.W.2d at 781 (quoting Terry v. Ohio , 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16 (1968)). In other words, a seizure occurs if a reasonable person would believe he or she is not free to leave or otherwise terminate the encounter because of actions by the police. Id. at 783.
The record demonstrates: (1) as he was about to enter a cab at a taxi stand, Loudermilk was approached by a police officer; (2) the officer displayed his badge, introduced himself as a narcotics officer who was interviewing suspected drug couriers, and asked Loudermilk if he would answer a few questions; (3) Loudermilk agreed to answer some questions, but spoke in a "stuttering, broken voice"; and (4) a second officer assured the cab driver, within Loudermilk's hearing, that Loudermilk's departure would not be impeded. Under these circumstances, we conclude the momentary interruption of Loudermilk's physical activity was consensual and not a seizure. See Royer , 460 U.S. at 501, 103 S.Ct. at 1326 (noting that asking for and temporarily examining defendant's airline ticket and driver's license would not constitute a seizure); United States v. Hathcock , 103 F.3d 715, 718-19 (8th Cir. 1997) (stating circumstances indicating seizure rather than consensual stop include threatening presence of several officers, display of weapon by officer, physical touching of person or use of language or tone indicating compliance), cert. denied , 117 S.Ct. 2528 (June 27, 1997); see also Florida v. Bostick , 501 U.S. 429, 436, 111 S.Ct. 2382, 2387 (1991) (holding focus should be whether police conduct coercive, not on independent factors restricting person's freedom of movement). Because we conclude Loudermilk was not seized when a police officer approached and began questioning him, we need not address his argument that the stop was based on a mere hunch consisting of a few drug courier profile characteristics.
Loudermilk also argues the officers had no reasonable, articulable suspicion that he was involved in criminal activity. We disagree. The state concedes that Loudermilk was "seized" after he fled, when police ordered him to stop. Cf. State v. Ingram , 570 N.W.2d 173, 176 (Minn.App. 1997) (holding defendant who walked away from bus stop after police seized other suspect was seized when police told defendant he was going to be pat-searched), review denied (Minn. Dec. 22, 1997). In some circumstances, a request for identification can constitute a seizure. State v. Day , 461 N.W.2d 404, 407 (Minn.App. 1990), review denied (Minn. Dec. 20, 1990). We need not decide whether there was a seizure at that point, however, because police had a reasonable, articulable suspicion before asking Loudermilk for his bus pass and identification.
The record shows: (1) Loudermilk was arriving from Chicago (a drug source city) and was carrying only one carry-on bag (one factor in the drug courier profile); (2) Loudermilk appeared to be quite young, possibly a truant; (3) officers observed Loudermilk quickly scan the bus terminal and make a brief phone call; (4) police heard Loudermilk hurriedly say over the phone that he had arrived and was taking a cab; (5) when approached by the police officer, Loudermilk acted nervous, engaged in "eye flight," and responded in a broken voice; and (6) officers observed a large bulge in Loudermilk's pants pocket. The totality of these circumstances provided a reasonable, articulable suspicion supporting an investigative stop. See State v. Martinson , 581 N.W.2d 846, 852 (Minn. 1998) (noting determination of reasonable suspicion requires consideration of totality of circumstances); State v. McKinley , 305 Minn. 297, 303-04, 232 N.W.2d 906, 911 (1975) (noting basis required for stop is minimal).
Affirmed.
I respectfully dissent. On these facts, the district court erred in concluding that Loudermilk was not seized. Then the district court erred in concluding in the alternative that the officers had a reasonable, articulable suspicion to support a seizure.
I.
As the majority correctly notes, there is no seizure where an officer merely approaches an individual and questions him. Florida v. Royer , 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324 (1983). A seizure does occur, however, when police actions would cause a reasonable person to believe he is not free to leave. In re Welfare of E.D.J. , 502 N.W.2d 779, 783 (Minn. 1993).
Here, police officers never informed Loudermilk that he was free to leave. Officer Hauglid asked Loudermilk whether he would be willing to answer some questions, and Loudermilk responded affirmatively. See United States v. Mendenhall , 446 U.S. 544, 555, 100 S.Ct. 1870, 1878 (1980) (holding voluntariness of responses does not depend on whether person being questioned has been told he or she can refuse to cooperate). Conceivably Loudermilk could have refused to answer Hauglid's questions, but, again, the test is whether a reasonable person would believe he is free to go.
It is clear from Hauglid's testimony that Loudermilk would not have been free to leave if he declined to answer Hauglid's questions. On direct examination, Hauglid testified that prior to the time Loudermilk began to run, Hauglid "believed" that Loudermilk was free to leave. Despite this testimony, the district court itself questioned Hauglid further about whether Loudermilk was free to leave:
Court: Officer, I have a question. As I understand it, when you first approached the defendant at the cab and he had the cab door open, he was free to leave?
Hauglid: My opinion was he was free to leave.
* * * *
Court: In this case if you told him that he was free to go when you came up and identified yourself, if he got in the cab and closed the door, are you telling me you would not have stopped the cab?
Hauglid: No, I would have stopped the cab. If he would have walked away, I would have stopped him.
Court: So he wasn't free to go?
Hauglid: I would have — in that particular situation, if he was stopped, I would hold him and his bag — he had a carry-on bag — for the drug dog to sniff that bag.
Court: So when you approached him and gave — showed him the ID, you intended to detain him so that dog could sniff him out, right?
Hauglid: This particular one was a funny one because as soon as I approached with my badge, I knew the guy wanted to run.
Court: So based upon what you saw up to there, he was going to be detained and you were going to have him sniffed out?
Hauglid: Yes.
The state attempted to clarify Hauglid's comments after the court's questioning:
Prosecutor: Okay. Up to the point where you approached the defendant, show him your badge and you see his reaction, up until that point if he had gotten in the cab and left before you got there, are you going to call a squad to stop the cab?
Hauglid: This particular person, yes, I was. It was drawn to one major — one real one was he was a young juvenile that I thought — I thought a young enough juvenile and I thought he should have been in school. Yes, I would have stopped him and had — if he wouldn't have said, yeah, I'll answer questions, I would have had the drug dog sniff his bag and I would have detained him for the drug dog.
The fact that Loudermilk was not free to leave, the fact that the police had him under direct suspicion, and the fact that the police officer testified that had Loudermilk tried to leave he would have stopped him, are supported and validated by the fact that when Loudermilk did leave, the police followed him and arrested him.
Evidence that Hauglid would not have let Loudermilk go if he had tried to leave does not "prove" that a reasonable person would have believed that he was not free to leave. See id. at 554 n. 6, 100 S.Ct. at 1877 n. 6 (noting subjective intent of officer is irrelevant "except insofar as that may have been conveyed to the respondent"). But the officer's actions here are no proof at all that a reasonable person would have believed that he was free to leave. To the contrary, it is far more probable that a reasonable person would not have believed that he was free to leave, meaning, that he felt seized or under arrest, even though the buzz-word "arrest" had not been uttered. Hauglid stood in front of Loudermilk, Officer Ireland stood behind the open door, and another officer was approaching behind Hauglid. Additionally, Ireland asked the taxi driver to wait while they talked to Loudermilk. Under these circumstances it would have been apparent to Hauglid, or to any reasonable person, that he was not free to get in the taxi and leave. "Free to leave" must be free to say, "No, I'm leaving" and to leave. Therefore, Loudermilk was seized when Hauglid stopped him as he was attempting to get into a taxi.
II.
Because Loudermilk was seized when Hauglid stopped him as he was getting into a taxi, Hauglid must have held a reasonable, articulable suspicion of criminal activity at that moment. See State v. Pike , 551 N.W.2d 919, 921 (Minn. 1996) (investigatory stop, or seizure, requires "reasonable suspicion of criminal activity"). An investigatory stop must be based on "`specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion,'" and must not be based on "mere whim, caprice or idle curiosity." Id. at 921-22 (quoting Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 1880 (1968)).
Although the supreme court recently validated a controlled substance crime conviction in State v. Martinson , the supreme court stated that it was "reluctant to rely solely upon a drug courier profile for purposes of asserting reasonable suspicion." State v. Martinson , 581 N.W.2d 846, 851 (Minn. 1998). The supreme court based its decision that police had a reasonable suspicion that Martinson possessed drugs on the totality of the circumstances. Id. at 852. Notably, the court observed that police officers based their stop on 10 different facts, including the fact that Martinson: (a) arrived on an airplane from a "source city"; (b) behaved unusually while waiting for his bags; (c) clutched his bag tightly; (d) checked a bag small enough to be a carry-on; (e) answered Arizona when first asked where he was coming from and then changed his answer to Las Vegas; (f) removed a Norwest ticket for a one-way trip to Phoenix from his bag before producing an America West ticket; (g) had used cash to pay for a one-way ticket from Phoenix; (h) carried a birth certificate as his only identification, which officers had no way of verifying; (i) told officers he had made several recent trips to Arizona and said he was looking for work; and (j) was unusually nervous during the conversation. Id. at 851-52.
In contrast to Martinson , here, the only reasons articulated by Hauglid in support of his decision to stop Loudermilk were that Loudermilk: (a) arrived on a bus from Chicago; (b) was young; (c) had only one carry-on bag; and (d) looked around after exiting the bus as though looking for someone, then made a short telephone call. Hauglid also claimed that he observed a large bulge in Loudermilk's pants pocket and observed Loudermilk looking around continuously. But the record is clear that these additional facts, and they are not very weighty either, were not observed until after Hauglid stopped Loudermilk. Hauglid's observations before he stopped Loudermilk (a-d listed above, which are the only observations that can be used to judge "reasonable articulable suspicion") were only "a hunch" that Loudermilk was a drug courier. But a hunch does not equate to a reasonable suspicion that someone is engaged in criminal activity. See State v. Cripps , 533 N.W.2d 388, 391-92 (Minn. 1995) (stating officer "must be able to point to objective facts and may not base his or her conclusion on a `hunch'" (citations omitted)). The facts in this case, viewed as a whole, do not give rise to a reasonable suspicion that Loudermilk was carrying drugs. Putting together, "a bus from Chicago"; "was young"; "had one carry-on bag" and "looked around after exiting the bus as though looking for someone" identifies, conservatively, maybe several hundred thousand American citizens, of all colors, maybe a couple million, using buses, trains, or airlines on a daily basis.
Because the police officers seized Loudermilk without having a reasonable, articulable suspicion that Loudermilk was engaged in criminal activity, the district court erred in refusing to suppress the evidence obtained as a result of this stop. Therefore, I would reverse Loudermilk's conviction.