                          This opinion will be unpublished and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
                                     A14-1910

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Curtis Leroy Johnson,
                                        Appellant.

                                Filed November 2, 2015
                                       Affirmed
                                    Johnson, Judge

                             Hennepin County District Court
                               File No. 27-CR-13-39034

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Kirk, Presiding Judge; Johnson, Judge; and Bjorkman,

Judge.

                         UNPUBLISHED OPINION

JOHNSON, Judge

         Curtis Leroy Johnson was convicted of a second-degree controlled substance

crime based on evidence that he possessed 23 bindles of crack cocaine. On appeal, he
argues that the district court erred by denying his motion to suppress evidence that was

obtained in a search of a vehicle of which he was an occupant. We conclude that police

officers had a reasonable, articulable suspicion of criminal activity, which justified a brief

investigatory detention of the vehicle. Therefore, we affirm.

                                          FACTS

       On November 25, 2013, Minneapolis police officers Christopher Kelley and

Karina Landmesser were on patrol on Nicollet Avenue South. At approximately 2:15

a.m., the officers observed an unoccupied vehicle that was parked along the curb on a

mixed residential and commercial street with its engine idling and its parking lights on.

Because they were concerned about thefts of idling vehicles in that area, the officers

decided to drive around the block and return to investigate further.

       When the officers returned, they saw two persons in the vehicle, one in the

driver’s seat and one in the back seat directly behind the driver’s seat. The positioning of

the occupants was suspicious to Officer Kelley because he previously had seen persons

seated in such positions while engaging in drug transactions. Officer Kelley decided to

conduct a brief investigation.

       Officer Kelley stopped the squad car three-quarters of a car length behind the

parked vehicle. Both officers got out of the squad car and approached the parked vehicle,

one on each side. As they approached, the person sitting in the driver’s seat rolled down

his window. As he did so, Officer Kelley immediately smelled a strong odor of burnt

marijuana.




                                              2
       Because of the smell of marijuana, Officer Kelley asked the person in the driver’s

seat to get out of the vehicle. After he did so, the person in the back seat, who was later

identified as Johnson, jumped to the front seat and exited from the passenger-side door in

an attempt either to flee the scene or to assault Officer Landmesser. Johnson and Officer

Landmesser engaged in a struggle, forcing Officer Kelley to run to the other side of the

parked vehicle to help Officer Landmesser.        Johnson fought and wrestled with the

officers as they attempted to restrain him. As the struggle continued, Johnson reached for

Officer Kelley’s firearm. The officers eventually were able to subdue Johnson and take

him into custody. During a subsequent search of the vehicle, the officers found 23

individually wrapped bindles of crack cocaine in the back seat, near where Johnson had

been seated.

       The state charged Johnson with (1) second-degree controlled substance crime, in

violation of Minn. Stat. § 152.022, subd. 2(a)(1) (2012), based on his alleged possession

of crack cocaine, and (2) attempting to disarm a police officer, in violation of Minn. Stat.

§ 609.504, subd. 2 (2012), based on his alleged attempt to take Officer Kelley’s firearm.

The state later amended the complaint to allege in the first count possession with intent to

sell, see Minn. Stat. § 152.022, subd. 1(1), and to add a third count, third-degree

controlled substance crime, in violation of Minn. Stat. § 152.023, subd. 2(a)(1) (2012),

based on his alleged unlawful possession of more than three grams of cocaine.

       In May 2014, Johnson moved to suppress the evidence that was obtained as a

result of the investigatory detention and the search of the vehicle. The district court

conducted an evidentiary hearing, at which only Officer Kelley testified.           At the


                                             3
conclusion of the hearing, the district court orally denied Johnson’s motion on the ground

that the positions of the occupants of the vehicle gave Officer Kelley a reasonable,

articulable suspicion of criminal activity, which justified the investigatory detention of

the parked vehicle.

       After the district court denied the motion to suppress evidence, the parties agreed

to a stipulated-evidence court trial. See Minn. R. Crim. P. 26.01, subd. 4. The district

court found Johnson guilty on count 1. In August 2014, the district court sentenced

Johnson to 95 months of imprisonment on count 1 and, by agreement of the parties,

dismissed counts 2 and 3. Johnson appeals.

                                     DECISION

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

evidence. He contends that the officers did not have a reasonable, articulable suspicion

of criminal activity so as to justify the investigatory detention of the vehicle of which he

was an occupant.

       The Fourth Amendment to the United States Constitution guarantees the “right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures.” U.S. Const. amend. IV; see also Minn. Const. art. I, § 10. The

Fourth Amendment also protects the right of the people to be secure in their motor

vehicles. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). But a law enforcement

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,


                                             4
528 U.S. 119, 123, 120 S. Ct. 673, 675 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.

Ct. 1868, 1884 (1968))).

       A reasonable, articulable suspicion exists if, “in justifying the particular intrusion

the police officer [is] able to point to specific and articulable facts which, taken together

with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392

U.S. at 21, 88 S. Ct. at 1880. The reasonable-suspicion standard is not high, but the

suspicion must be “something more than an unarticulated hunch,” State v. Davis, 732

N.W.2d 173, 182 (Minn. 2007) (quotation omitted), and more than an “inchoate and

unparticularized suspicion,” Timberlake, 744 N.W.2d at 393 (quotation omitted). An

officer “must be able to point to something that objectively supports the suspicion at

issue.” Davis, 732 N.W.2d at 182 (quotation omitted); see also Terry, 392 U.S. at 21-22,

88 S. Ct. at 1880. If the relevant facts are undisputed, this court applies a de novo

standard of review to a district court’s conclusion that a seizure is justified by a

reasonable, articulable suspicion. State v. Yang, 774 N.W.2d 539, 551 (Minn. 2009).

       The district court concluded that the officers’ investigatory detention of the

vehicle of which Johnson was an occupant was justified by a reasonable, articulable

suspicion of criminal activity. The district court based this conclusion on its finding that

the totality of the circumstances justified the seizure. The district court found that the

time of year, the time of night, and the idling vehicle would have justified an

investigatory detention when the officers passed the vehicle the first time. The district

court further found that the positions of the occupants justified an investigatory detention

after the officers returned to the vehicle. The district court found that the marijuana the


                                             5
officers smelled as they approached the vehicle gave the officers grounds for further

investigation.

       Johnson argues that the district court erred because Officer Kelley did not

articulate objective facts that are sufficient to give rise to a reasonable, articulable

suspicion of criminal activity so as to justify the officers’ initial investigatory detention of

the vehicle and its occupants.1 Johnson’s primary contention is that Officer Kelley’s

initial concern about thefts of idling vehicles dissipated after he saw two occupants in the

vehicle, thereby leaving the officers with no justification for their investigation. Johnson

also contends that Officer Kelley approached the parked vehicle simply because he was

curious. In support of the latter contention, Johnson relies on State v. Sanger, 420

N.W.2d 241 (Minn. App. 1988), in which this court concluded that a police officer lacked

a reasonable, articulable suspicion to justify his seizure of a parked vehicle based on his

“rather candid admission that he approached the car ‘to see what was going on.’” Id. at

242.




       1
         The state also argues, in a footnote, that there was no Fourth Amendment
violation because there was no seizure. The state did not present that argument to the
district court, and the district court did not address the issue. The officers obviously
seized the vehicle and its occupants at some point in the sequence of events. We
understand Johnson to challenge the officers’ initiation of an investigatory detention but
not to challenge the officers’ expansion of the investigation after they smelled marijuana.
Accordingly, we understand the state to contend in the footnote that the officers did not
engage in any type of seizure by stopping the squad car near the parked vehicle and
walking toward the vehicle. Because that issue was not contested in the district court and
is not thoroughly briefed on appeal, we will assume without deciding that the officers’
initiation of the investigatory detention is a seizure for which a reasonable, articulable
suspicion is required.

                                               6
       The district court’s ruling, however, was not based on Officer Kelley’s initial

concern about thefts of idling vehicles or on mere curiosity. The district court’s ruling

was based on Officer Kelley’s suspicion that the occupants of the parked vehicle might

be engaging in drug-trafficking. In considering a law-enforcement officer’s assertion of a

reasonable, articulable suspicion, courts must be “deferential to police officer training

and experience and recognize that a trained officer can properly act on suspicion that

would elude an untrained eye.” Britton, 604 N.W.2d at 88-89. Even conduct that is

“wholly lawful” may give rise to a reasonable, articulable suspicion of criminal activity.

Id. at 89. Officer Kelley testified that he has been a police officer in Minneapolis for

fifteen years and that he previously served for five years on the community response

team, which deals specifically with narcotics offenses. He also testified that he has

experience with drug transactions inside motor vehicles and, more specifically, has

investigated drug transactions in which persons are positioned as Johnson and the other

man were positioned in this case, with one person in the driver’s seat and the other person

in the back seat directly behind the driver. In light of Officer Kelley’s experience and his

testimony concerning the particular circumstances of this case, we conclude that the

officer identified facts that objectively give rise to a reasonable, articulable suspicion of

criminal activity so as to justify the initiation of the investigatory detention that led to

evidence of a controlled substance. See id.




                                              7
       In sum, the district court did not err by denying Johnson’s motion to suppress

evidence.2

       Affirmed.




       2
         The state also argues, in the alternative, that if the officers did not have a
reasonable, articulable suspicion of criminal activity, the district court’s denial of
Johnson’s motion to suppress should be affirmed on the ground that Johnson’s resistance
and attempted flight should cause the evidence to not be suppressed. Johnson argues in
reply that we should not consider the argument because the state did not present it to the
district court. Nonetheless, “the respondent on appeal in a criminal case may present to
this court an alternative reason for affirming the district court, if the alternative reason is
permitted by both the law and the factual record and would not expand the relief
granted.” State v. Bennett, 867 N.W.2d 539, 543 n.1 (Minn. App. 2015) (citing State v.
Grunig, 660 N.W.2d 134, 137 (Minn. 2003) (applying Minn. R. Crim. P. 29.04, subd. 6,
to state’s alternative ground for affirmance)). The prerequisites of the Grunig principle
are not satisfied in this case. The state’s alternative argument has a valid legal basis, but
the record of the suppression hearing does not reveal whether Johnson intended to assault
a police officer or intended only to flee. Compare State v. Ingram, 570 N.W.2d 173
(Minn. App. 1997), review denied (Minn. Dec. 22, 1997) (concluding that appellant’s
flight and “brushing” against officer while taking flight purged taint of unlawful seizure)
with State v. Bergerson, 659 N.W.2d 791, 797 (Minn. App. 2003) (concluding that
appellant’s mere flight did not purge taint of unlawful seizure). Thus, we will not address
the issue for the first time on appeal.

                                              8
