                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A14-0991

                                     State of Minnesota,
                                        Respondent,

                                              vs.

                                 Ricardo Leonard Bowman,
                                         Appellant.

                                     Filed June 8, 2015
                                         Affirmed
                                      Schellhas, Judge

                               Hennepin County District Court
                                 File No. 27-CR-12-34681

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Reyes,

Judge.

                          UNPUBLISHED OPINION

SCHELLHAS, Judge

         Appellant challenges the district court’s denial of his motion to suppress evidence.

We affirm.
                                          FACTS

       Minneapolis Police Officers Brandy Steberg and his partner were on a directed

patrol shift in the Fourth Precinct on October 16, 2012, and were not required to respond

to 911 calls. Their primary responsibility was to respond to livability issues, i.e., street-

level crimes. Around 11:00 p.m., the officers were patrolling the area of 16th Avenue

North and Logan Avenue North, due to several recent 911 calls and a shots-fired call that

had been placed about a half-hour earlier near 15th Avenue North and Irving Avenue

North. Although the officers were not investigating the shots-fired call, it was one of the

reasons they were patrolling the area.

       While the officers were traveling westbound on 16th Avenue North, slowly

approaching James Avenue North, Officer Steberg observed a male, later identified as

appellant Ricardo Leonard Bowman, lurking in the alley of James Avenue North and

Knox Avenue North behind a small tree near the window of a residence. Officer Steberg

thought it strange that someone would be standing next to a window in an alley, late at

night, not walking to or from anywhere. When Bowman spotted the officers’ squad car,

he immediately started walking northbound out of the alley, toward the officers. When

Bowman reached 16th Avenue North, he turned and walked westbound. From a distance

of approximately 15 to 20 feet away, Officer Steberg shined the squad-car spotlight on

Bowman and observed that Bowman was carrying a large beer can.

       From the squad car, Officer Steberg asked Bowman to stop and talk to him, and

Bowman acquiesced. Officer Steberg then exited the squad car and approached Bowman.

When Officer Steberg was within arm’s reach of him, Bowman began to look around,


                                             2
tensed up, grabbed his waistband, and ran eastbound on the sidewalk. Concerned that

Bowman might have a concealed weapon in his waistband, Officer Steberg pursued and

tackled him within a few yards, and the officers pinned him to the ground. Officer

Steberg then observed a two-tone handgun sticking out of Bowman’s waistband. The

officers took possession of the handgun and discovered that it was loaded. They also

discovered that the beer can that Bowman had been carrying was unopened and that

Bowman lived on the same block as the residence near which the officers first spotted

him. The officers arrested Bowman and inventoried the handgun.

       Respondent State of Minnesota charged Bowman with being a prohibited person

in possession of a firearm and gave notice of its intention to use evidence obtained as a

result of the search and seizure. Bowman moved to suppress the firearm, arguing that it

was obtained in violation of his constitutional protections against unreasonable searches

and seizures. At a Rasmussen hearing, the district court heard testimony from Officer

Steberg and denied Bowman’s suppression motion. Bowman then waived his rights to a

jury trial, and the parties submitted the case to the court on stipulated facts. The court

found Bowman guilty and sentenced him to 60 months’ imprisonment.

       This appeal follows.

                                     DECISION

       Bowman argues that the district court erred by denying his motion to suppress the

firearm. “When reviewing a district court’s pretrial order on a motion to suppress

evidence, [an appellate court] review[s] the district court’s factual findings under a

clearly erroneous standard and the district court’s legal determinations de novo.” State v.


                                            3
Gauster, 752 N.W.2d 496, 502 (Minn. 2008) (quotation omitted). “When the facts are not

in dispute, [an appellate court’s] review is de novo, and [it] must determine whether the

police articulated an adequate basis for the search or seizure at issue.” State v. Flowers,

734 N.W.2d 239, 248 (Minn. 2007).

       Both the United States Constitution and the Minnesota Constitution guarantee

“[t]he right of the people to be secure in their persons, houses, papers, and effects” from

“unreasonable searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10.

But “[t]he United States Supreme Court has held that ‘an officer may, consistent with the

Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable,

articulable suspicion that criminal activity is afoot.’” State v. Timberlake, 744 N.W.2d

390, 393 (Minn. 2008) (quoting Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673,

675 (2000)); see also Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884–85 (1968).

Moment of seizure

       Bowman argues that he was seized when Officer Steberg shined the squad-car

spotlight on Bowman and asked him to stop and talk. The state takes the position that the

officers did not seize Bowman until he fled and Officer Steberg took pursuit.

       “Not all encounters between the police and citizens constitute seizures.” State v.

Harris, 590 N.W.2d 90, 98 (Minn. 1999). A seizure occurs when, “objectively and on the

basis of the totality of the circumstances, . . . a reasonable person in the defendant’s shoes

would have concluded that he or she was not free to leave.” In re Welfare of E.D.J., 502

N.W.2d 779, 783 (Minn. 1993). The Minnesota Supreme Court has adopted the

Mendenhall-Royer standard for judging the totality of the circumstances surrounding an


                                              4
encounter. See id. at 781–83 (citing Florida v. Royer, 460 U.S. 491, 501, 103 S. Ct. 1319,

1326 (1983); United States v. Mendenhall, 446 U.S. 544, 554–55, 100 S. Ct. 1870, 1877

(1980)).

               Under that standard, some of the circumstances that might
               indicate a seizure has taken place include: the threatening
               presence of several officers, the display of a weapon by an
               officer, some physical touching of the person of the citizen, or
               the use of language or tone of voice indicating that
               compliance with the officer’s request might be compelled.

Harris, 590 N.W.2d at 98 (quotations omitted). “In the absence of some such evidence,

otherwise inoffensive contact between a member of the public and the police cannot, as a

matter of law, amount to a seizure of that person.” Mendenhall, 446 U.S. at 555, 100 S.

Ct. at 1877.

       Under the totality of circumstances in this case, we conclude that a reasonable

person in Bowman’s position would not have felt free to leave after Officer Steberg

shined the spotlight on him and asked that he stop and talk. At that moment, the officers

seized Bowman. We next must determine whether Officer Steberg had reasonable

suspicion of criminal activity when he seized Bowman.

Reasonable suspicion for seizure

       The Minnesota Supreme Court has recognized that “the reasonable suspicion

standard is not high,” but a seizure cannot be based on a mere “inchoate and

unparticularized suspicion or hunch.” Timberlake, 744 N.W.2d at 393 (quotations

omitted). An officer “must articulate a ‘particularized and objective basis for suspecting




                                              5
the particular person stopped of criminal activity.’” Id. (quoting United States v. Cortez,

449 U.S. 411, 417–18, 101 S. Ct. 690, 695 (1981)).

       “[Appellate courts] consider the totality of the circumstances when determining

whether reasonable, articulable suspicion exists.” Flowers, 734 N.W.2d at 251.

“[Appellate courts] evaluate whether a reasonable, articulable suspicion exists from the

perspective of a trained police officer, who may make ‘inferences and deductions that

might well elude an untrained person.’” State v. Lemert, 843 N.W.2d 227, 230 (Minn.

2014) (quoting Cortez, 449 U.S. at 418, 101 S. Ct. at 695).

       Here, the officers were patrolling an area that had several recent 911 calls,

complaints about livability issues, and a very recent shots-fired call. Although mere

presence in a high-crime area alone is insufficient to justify a stop, the character of a

location is a factor that may support reasonable suspicion. See Wardlow, 528 U.S. at 124,

120 S. Ct. at 676) (“[O]fficers are not required to ignore the relevant characteristics of a

location in determining whether the circumstances are sufficiently suspicious to warrant

further investigation.”); State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992)

(“[D]efendant’s evasive conduct after eye contact with police, combined with his

departure from a building with a history of drug activity, justified police in reasonably

suspecting criminal activity.”).

       Officer Steberg observed Bowman in an alley late at night, standing behind a tree

next to a window of a residence. While Officer Steberg acknowledged that he did not

observe Bowman looking into the window and did not know whether Bowman lived at

the residence, he stated that Bowman’s behavior appeared strange and suspicious. “A


                                             6
determination that reasonable suspicion exists . . . need not rule out the possibility of

innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277, 122 S. Ct. 744, 753

(2002). And as the United States Supreme Court has explained, an officer is permitted to

detain an individual to resolve an ambiguity resulting from conduct that may be

susceptible of an innocent explanation. See Wardlow, 528 U.S. at 125, 120 S. Ct. at 677

(“[I]n Terry, the conduct justifying the stop was ambiguous and susceptible of an

innocent explanation. . . . Terry recognized that the officers could detain the individuals

to resolve the ambiguity.”). The officers stopped Bowman to investigate his conduct in

the alley and his possession of the beer can. Loitering on public property, or private

property without consent of the owner, while in possession of an open container of

intoxicating liquor or non-intoxicating malt liquor with intent to consume is a violation of

Minneapolis, Minn., Code of Ordinances § 364.45 (2012). Officer Steberg testified that

he frequently had seen the type of beer can carried by Bowman and that he stopped

Bowman, in part, to investigate further whether Bowman was violating section 364.45.

       Bowman immediately reacted upon spotting the officers’ squad car, by walking

away from the residence, out of the alley, and down the sidewalk. This conduct

reasonably could suggest to the officers that Bowman did not live at the residence.

Furthermore, this court has observed the United States Supreme Court’s recognition

“‘that nervous, evasive behavior is a pertinent factor in determining reasonable

suspicion.’” State v. Houston, 654 N.W.2d 727, 733 (Minn. App. 2003) (quoting

Wardlow, 528 U.S. at 124, 120 S. Ct. at 676), review denied (Minn. Mar. 26, 2003).

Regardless of whether Bowman’s conduct can be characterized as “evasive,” the


                                             7
immediacy of Bowman’s physical response to the presence of the squad car can be

interpreted as “nervous” behavior. And although nervousness alone may not justify

reasonable suspicion, nervousness is a circumstance that this court may consider. Cf.

State v. Smith, 814 N.W.2d 346, 353 (Minn. 2012) (acknowledging that “[the supreme

court] ha[s] been reluctant to rely on nervous behavior as evidence to support a

reasonable, articulable suspicion of criminal activity” but considering defendant’s

nervousness in conjunction with evasive explanation for his shakiness and officers’

inferences or deductions based on their training and experience). “[W]holly lawful

conduct might justify the suspicion that criminal activity is afoot.” State v. Britton, 604

N.W.2d 84, 89 (Minn. 2000). “[The reasonable suspicion] standard is met when an

officer observes unusual conduct that leads the officer to reasonably conclude in light of

his or her experience that criminal activity may be afoot.” Timberlake, 744 N.W.2d at

393 (quotation omitted).

      Given the totality of the circumstances in this case, we conclude that Officer

Steberg’s seizure of Bowman was not based on “mere whim, caprice or idle curiosity,”

State v. Anderson, 683 N.W.2d 818, 823 (Minn. 2004) (quotation omitted), but was

supported by “reasonable, articulable suspicion,” Timberlake, 744 N.W.2d at 393

(quotation omitted). The district court did not err by concluding that the stop was

reasonable.

      Affirmed.




                                            8
