                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2016).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0445


                                 State of Minnesota,
                                     Respondent,

                                         vs.

                                 Gary Wayne Wright,
                                     Appellant.


                               Filed January 23, 2017
                                      Affirmed
                                  Halbrooks, Judge


                           Hennepin County District Court
                             File No. 27-CR-15-19578

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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and

Kirk, Judge.
                         UNPUBLISHED OPINION

HALBROOKS, Judge

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

arguing that the police lacked reasonable, articulable suspicion to justify an investigatory

stop and frisk of appellant. We affirm.

                                          FACTS

       Just before midnight on July 3, 2015, a 911 caller reported that five people riding in

a black Chevy Impala were acting strangely in her neighborhood. She stated that she saw

someone get out of the vehicle and look into her neighbor’s car. After the vehicle entered

a cul de sac, she saw a white man with a shaved head, wearing a white shirt and baggy

jeans, exit the vehicle and start walking around the neighborhood.

       Police dispatch sent Sergeant Curtis Smith and Officer Scott Whiteford, among

other officers, to respond. Sgt. Smith arrived first at the cul de sac and approached the man

matching the caller’s description, later identified as appellant Gary Wayne Wright. Sgt.

Smith asked Wright what he was doing, and Wright replied that he was waiting for his

friend, Pixie, who had gone into one of the nearby homes. Wright was unable to say which

house Pixie went into and stated that he did not know Pixie’s full name. Sgt. Smith

observed the vehicle parked approximately 40 feet away and asked Wright whether he was

affiliated with the people inside the vehicle. Wright confirmed that he was. Sgt. Smith

asked Wright for his identification. Wright stated that he did not have identification but

orally identified himself and his birth date. Sgt. Smith then inquired whether Wright had

been arrested before. Wright said that he had previously been in prison for felony assault


                                             2
with a weapon. Throughout their conversation, Sgt. Smith had to repeatedly tell Wright to

keep his hands out of his pockets.

      When Officer Whiteford arrived at the scene, Sgt. Smith directed him toward the

parked Chevy Impala. Officer Whiteford spoke with the vehicle’s occupants and asked

them if they knew Wright. The occupants replied that Wright was not with them. Officer

Whiteford then walked back to Sgt. Smith and informed him that the occupants were not

with Wright. Officer Whiteford noticed that Wright appeared fidgety and nervous.

      At this point, Sgt. Smith told Wright that he was going to be detained. Believing

that Wright may have been prowling cars and may have tools, such as screwdrivers, or

weapons, Sgt. Smith patted down Wright and felt what appeared to be a gun at the bottom

of his pant leg. Sgt. Smith told Officer Whiteford that he felt a gun and placed Wright in

handcuffs. Sgt. Smith then retrieved a loaded semi-automatic handgun from Wright’s

pants. He also found ten rounds of ammunition in Wright’s pocket. After verifying

Wright’s identity and criminal history, Sgt. Smith discussed with Wright whether he was

allowed to possess a firearm. Wright acknowledged that he knew it was illegal for him to

possess a handgun. Sgt. Smith then placed Wright under arrest.

      The state charged Wright with one count of being an ineligible person in possession

of a firearm in violation of Minn. Stat. § 624.713, subd. 1(2) (2014). The case proceeded

to a bench trial. But before the district court rendered a verdict, Wright requested a

Rasmussen hearing to address whether Sgt. Smith’s stop and frisk of Wright was

constitutionally valid. The district court granted Wright’s request and held a hearing.

Wright moved the district court to suppress the evidence from the pat-down search. The


                                            3
parties agreed to admit the testimony provided at the bench trial as well as the criminal

complaint and the police officers’ reports. After listening to the parties’ oral arguments,

the district court orally denied Wright’s motion. The district court found that Wright is

ineligible to possess a firearm and that Wright knew that he unlawfully possessed a

handgun on July 3, 2015. Wright was convicted and sentenced to 60 months in prison.

This appeal follows.

                                     DECISION

       Wright argues that the police lacked reasonable, articulable suspicion of criminal

activity prior to conducting an investigatory stop and subsequent frisk. We review de novo

whether a search or seizure is justified by reasonable suspicion. State v. Burbach, 706

N.W.2d 484, 487 (Minn. 2005). But we accept the district court’s factual findings unless

they are clearly erroneous. State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012).

       The Fourth Amendment to the United States Constitution and article I of the

Minnesota Constitution protect citizens from unreasonable searches and seizures. U.S.

Const. amend. IV; Minn. Const. art. I, § 10. A search or seizure conducted without a

warrant is per se unreasonable unless it falls under one of the few established exceptions

to the warrant requirement. State v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009). If

evidence is discovered as a result of a warrantless and unreasonable search or seizure, the

evidence must be suppressed. Smith, 814 N.W.2d at 350.

A.     Reasonable Suspicion for Investigatory Stop

       Wright argues that he was unlawfully seized because Sgt. Smith did not have

reasonable, articulable suspicion that criminal activity was afoot. A seizure occurs “when


                                            4
the officer, by means of physical force or show of authority, has in some way restrained

the liberty of a citizen.” In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993)

(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)). In other

words, “a person has been seized if in view of all of the circumstances surrounding the

incident, a reasonable person would have believed that he or she was neither free to

disregard the police questions nor free to terminate the encounter.” State v. Cripps, 533

N.W.2d 388, 391 (Minn. 1995).

       Citing Cripps, Wright contends that Sgt. Smith seized him when Sgt. Smith asked

for his identification. See id. In Cripps, a police officer asked the defendant, who was

drinking alcohol at a bar, to produce identification to ensure that she met the age

requirement for alcohol consumption. Id. at 389. The defendant gave false information

and was then arrested. Id. at 389-90. The supreme court determined that the request for

identification was “more than a simple inquiry into [the defendant’s] identity, but a request

“to prove . . . her innocence of the crime of underage consumption of alcohol.” Id. at 391.

The supreme court held that the request constituted a seizure because “an objectively

reasonable person would have believed that he or she was neither free to disregard the

officer’s request nor free to terminate the encounter.” Id. Unlike in Cripps, Sgt. Smith’s

request for Wright’s identification was a simple inquiry into Wright’s identity. Therefore,

we conclude that Cripps is distinguishable.

       Here, the district court denied Wright’s motion to suppress the evidence, stating,

“This was an investigatory stop.” We agree. Notwithstanding how Wright characterizes

the encounter, we agree with the state that we must determine whether Sgt. Smith had a


                                              5
reasonable, articulable suspicion of criminal activity when he stopped and subsequently

conducted a protective frisk of Wright. A limited investigatory stop is an exception to the

warrant requirement if the state can demonstrate that the police officer had specific and

articulable facts that created a “particularized and objective basis for suspecting the

particular person stopped of criminal activity.” State v. Pike, 551 N.W.2d 919, 921 (Minn.

1996) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)).

A brief investigatory stop requires only reasonable suspicion, a standard less demanding

than probable cause. State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008); Pike, 551

N.W.2d at 921-22.

       In this case, dispatch informed Sgt. Smith that the identified caller saw someone get

out of a black Chevy Impala and look into her neighbor’s car. The caller also told the

dispatcher, who relayed the information to Sgt. Smith, that the Chevy Impala was parked

in a nearby cul de sac and that an individual got out of the vehicle. The caller described

the individual as a white male with a shaved head who was wearing a white shirt and baggy

jeans. When Sgt. Smith arrived at the scene, he saw the individual, later identified as

Wright, and the vehicle, both matching the caller’s description.

       Wright argues that Sgt. Smith did not have reasonable suspicion to conduct an

investigatory stop because looking into a person’s car is not illegal conduct. But reasonable

suspicion does not require that criminal activity has already occurred, only that criminal

activity may be afoot. See Cortez, 449 U.S. at 417, 101 S. Ct. at 695 (“An investigatory

stop must be justified by some objective manifestation that the person stopped is, or is

about to be, engaged in criminal activity.”). Though the police cannot rely on a “hunch”


                                             6
to justify seizing a person, the police may seize that person if objective facts “support at

least one inference of the possibility of criminal activity.” State v. Klamar, 823 N.W.2d

687, 693 (Minn. App. 2012) (quotation omitted).

       Here, Sgt. Smith had a reasonable inference, supported by particularized facts, that

Wright may have been prowling cars in search of items to steal. It was nearly midnight

when the caller, whose credibility was never challenged, told dispatch that she witnessed a

person exit the black Chevy Impala and look into her neighbor’s car. While it is unclear

whether Wright was the person who looked into the car, Wright did inform Sgt. Smith that

he was with the individuals in the Chevy Impala. Sgt. Smith asked Wright what he was

doing and he responded that he was waiting for a female named Pixie who was in a nearby

home. But Wright was unsure which house Pixie was in and did not know Pixie’s last

name. Sgt. Smith testified that, based on his training and experience, along with the detail

provided in the 911 call, his suspicions were raised by how Wright’s answers to his

questions raised his suspicions. See State v. Britton, 604 N.W.2d 84, 88-89 (Minn. 2000)

(“We are deferential to police officer training and experience and recognize that a trained

officer can properly act on suspicion that would elude an untrained eye.”). Sgt. Smith also

had to tell Wright at least a couple of times to keep his hands out of his pockets. Under

these circumstances, Sgt. Smith had reasonable, articulable suspicion to conduct an

investigatory stop.

B.     Reasonable Suspicion for Subsequent Frisk

       Wright argues that even if Sgt. Smith’s stop of Wright was justified, Sgt. Smith

lacked reasonable, articulable suspicion to support the pat-down search or “Terry frisk” of


                                             7
Wright. Another exception to the Fourth Amendment’s warrant requirement permits a

police officer to conduct a protective but limited pat-down search of an individual for

weapons. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992). Terry establishes that

“police may stop and frisk a person when (1) they have a reasonable, articulable suspicion

that a suspect might be engaged in criminal activity and (2) the officer reasonably believes

the suspect might be armed and dangerous.” Id. (citing Terry, 392 U.S. at 30, 88 S. Ct. at

1884). The search is limited to patting down the individual’s outer clothing in order to

determine if they are armed. See State v. Harris, 590 N.W.2d 90, 104 (Minn. 1999). But

if, during the pat-down search, the officer locates an object that gives him probable cause

to believe that it is evidence of a crime, the officer may seize the object. Id.

       As previously discussed, Sgt. Smith had a reasonable suspicion that Wright was

engaging or about to engage in criminal activity when he conducted the stop. His suspicion

was further raised when, prior to the frisk, Officer Whiteford notified him that the

individuals in the black Chevy Impala told Officer Whiteford that they were not associated

with Wright. This informed Sgt. Smith that either Wright or the individuals with whom he

claimed to be affiliated were not being entirely truthful. Officer Whiteford also noticed

that Wright appeared nervous and was fidgeting with his hands.1 These facts further



1
  A person’s nervous demeanor is not a strong indication to support an officer’s suspicion
of criminal activity. See Burbach, 706 N.W.2d at 490 (noting Minnesota courts’ reluctance
to rely on nervous behavior to support finding reasonable suspicion). But, in this case, the
combined circumstances of Wright’s fidgeting in addition to Sgt. Smith having to
repeatedly tell Wright to remove his hands from his pockets may lead an officer to
reasonably believe that Wright may be involved in criminal activity or armed with a
weapon. See State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998) (stating that in

                                              8
support the district court’s conclusion that Sgt. Smith had reasonable suspicion sufficient

to detain Wright and conduct a pat-down search.

       Wright next argues that Sgt. Smith could not have reasonably believed that Wright

was either armed or dangerous. But based on Sgt. Smith’s experience, he knew that

individuals who prowl cars tend to carry burglary tools or weapons. And Wright’s repeated

fidgeting with his pockets, even after Sgt. Smith told him to keep his hands out of his

pockets, may have alerted Sgt. Smith that Wright may be armed with a weapon. See State

v. Flowers, 734 N.W.2d 239, 252 (Minn. 2007) (noting that the defendant’s “suspicious

movements” and failure to comply with the police officers’ requests made it reasonable for

the officers to fear for their safety). It was reasonable for Sgt. Smith to be concerned for

his safety as well as the safety of the other officers at the scene. Under these circumstances,

Sgt. Smith had sufficient reasonable suspicion, supported by particularized and objective

facts, that Wright may be involved in criminal activity and may be either armed or

dangerous. Sgt. Smith’s decision to conduct a pat-down search of Wright was justified.

       Because Sgt. Smith had reasonable, articulable suspicion that criminal activity was

afoot prior to stopping Wright and before conducting a pat-down search, we conclude that

the district court did not err by denying Wright’s motion to suppress the evidence.

       Affirmed.




applying the reasonable suspicion standard, Minnesota courts examine the totality of the
circumstances).

                                              9
