                        This opinion will be unpublished and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
                                   A15-0337


                                 State of Minnesota,
                                     Respondent,

                                         vs.

                              Andrew John Wondrasek,
                                    Appellant.


                                 Filed April 25, 2016
                                      Affirmed
                                  Halbrooks, Judge


                            Ramsey County District Court
                              File No. 62-CR-14-1457

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, St. Paul,
Minnesota (for appellant)

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

Kalitowski, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

HALBROOKS, Judge

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

and to dismiss. Because we conclude that the police had reasonable, articulable suspicion

of criminal activity to justify an investigatory stop of appellant, we affirm.

                                          FACTS

       On February 28, 2014, an anonymous person called 911 and reported that a man

was playing with a gun with a child in the front yard. Police dispatch sent Officer Joseph

Allen to respond. While he was en route, dispatch informed Officer Allen and another

responding officer that the anonymous person had called again to report that the man had

placed the gun in the back of a white Chevy Tahoe parked in the driveway. Officer Allen

arrived at the address and stopped his squad car on the street, partially blocking the

driveway where a white Chevy Tahoe was parked.

       Officer Allen saw a man, later identified as appellant Andrew Wondrasek, and a

little boy in the front yard, standing about two feet from an open rear passenger door of

the Chevy Tahoe. Officer Allen immediately ordered Wondrasek in a commanding and

authoritative voice to step away from the vehicle and to show his hands. Wondrasek

complied. Officer Allen then approached the Chevy Tahoe and saw what looked like the

handle of a black gun in the back seat. In response to a question, Wondrasek told Officer

Allen that it was a BB gun. Officer Allen’s partner put herself between Wondrasek and

the Chevy Tahoe. Once she did this, Officer Allen secured the weapon.




                                              2
       Officer Allen testified that he recognized Wondrasek from “past dealings”1 and

was aware that he is a convicted felon. After the firearm was secured, Officer Allen

confirmed Wondrasek’s identity and discussed with him whether he was allowed to

possess a firearm. Wondrasek stated that he knew that he was not supposed to possess

anything that shoots a projectile because he is a convicted felon. The two officers then

placed him under arrest.

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

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

Wondrasek moved to suppress the evidence of the firearm and to dismiss based on a lack

of reasonable, articulable suspicion that criminal activity was afoot prior to the

investigatory stop. The district court denied the motion and concluded that the stop was

justified because Officer Allen recognized Wondrasek as a convicted felon and therefore

had reasonable, articulable suspicion that he is an ineligible person in possession of a

firearm. Both parties agreed that the district court’s ruling on the motion to suppress was

dispositive. Wondrasek waived his right to a jury trial and agreed to a stipulated-

evidence trial according to Minn. R. Crim. P. 26.01, subd. 4. The district court found that

Wondrasek is ineligible to possess a firearm and that he did possess it. As a result,

Wondrasek was convicted.

       At the sentencing hearing, the district court stayed the presumptive 60-month

prison sentence, imposed a $50 fine, ordered Wondrasek to serve 365 days in the

1
  The dealings include a call pertaining to a medical emergency of the former owner of
the home and a call to help Wondrasek corral some dogs that had escaped from the
property.

                                            3
workhouse, and required that he complete a chemical-dependency evaluation.             The

district court scheduled a follow-up hearing for 120 days after Wondrasek began to serve

his time at the workhouse.      At the subsequent hearing, the district court ordered

Wondrasek’s release from the workhouse. This appeal follows.

                                     DECISION

       Wondrasek argues that the police lacked reasonable, articulable suspicion that

criminal activity was afoot prior to performing an investigatory stop. “We review de

novo a district court’s determination of reasonable suspicion of illegal activity. But in

that review, we accept the district court’s factual findings unless they are clearly

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

       Both the United States and Minnesota Constitutions protect against unreasonable

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

resulting from an unreasonable seizure must be suppressed. Smith, 814 N.W.2d at 350.

Searches and seizures conducted without a warrant are per se unreasonable—subject only

to a few specifically established and well delineated exceptions or circumstances.

Thompson v. Louisiana, 469 U.S. 17, 19-20, 105 S. Ct. 409, 410 (1984).

       “[A]n officer may, consistent with the Fourth Amendment, conduct a brief

investigatory stop” without a warrant “when the officer has a reasonable, articulable

suspicion that criminal activity is afoot.” Illinois v. Wardlow, 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)).

The justification for the investigatory stop must precede the stop itself.      O’Neill v.

Comm’r of Pub. Safety, 361 N.W.2d 471, 473 (Minn. App. 1985).


                                            4
       An officer seizes a citizen when the officer restrains the citizen’s liberty by using

physical force or a show of authority. State v. Cripps, 533 N.W.2d 388, 391 (Minn.

1995). “[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.” Id. The supreme

court has held that a seizure takes place when police direct an individual to stop what

they are doing. In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993).

       The parties agree that the investigatory stop occurred no later than when Officer

Allen ordered Wondrasek to move away from the Chevy Tahoe and to put his hands

where the officers could see them. The issue is whether Officer Allen had a reasonable,

articulable suspicion that criminal activity was afoot to justify the investigatory stop.

“Reasonable suspicion must be based on specific, articulable facts that allow the officer

to be able to articulate at the omnibus hearing that he or she had a particularized and

objective basis for suspecting the seized person of criminal activity.” State v. Diede, 795

N.W.2d 836, 842-43 (Minn. 2011) (quotation omitted). While not as demanding as the

probable-cause or preponderance-of-the-evidence standards, “the Fourth Amendment

requires at least a minimal level of objective justification for making the stop.” Wardlow,

528 U.S. at 123, 120 S. Ct. at 675-76. The police may seize a person if the facts

objectively “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).

       The district court denied Wondrasek’s motion to suppress the evidence of the gun

and dismiss based on its determination that Wondrasek was seized when the officers


                                              5
blocked his reasonable access to the street by partially blocking the driveway and that

Officer Allen had reasonable, articulable suspicion that criminal activity was afoot

because he recognized Wondrasek and believed that he is a person ineligible to possess a

firearm. On appeal, the state does not rely on the district court’s basis for denying the

motion to suppress. Instead, it argues that the investigatory stop was justified because

Officer Allen had reasonable, articulable suspicion that criminal activity was afoot based

on any of three other crimes: (1) recklessly handling a firearm (Minn. Stat. § 609.66,

subd. 1(a)(1) (2014)); (2) illegal possession of a firearm by a minor (Minn. Stat.

§ 624.713, subd. 1(1) (2014)); or (3) disorderly conduct (Minn. Stat. § 609.72, subd. 1(3)

(2014)).

       The state’s theory based on the three other crimes was not briefed or argued to the

district court. Typically, we do not consider matters not argued to and considered by the

district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But we “may permit a

party, without filing a cross-petition, to defend a decision or judgment on any ground that

the law and record permit that would not expand the relief that has been granted to the

party.” Minn. R. Crim. P. 29.04, subd. 6. Addressing rule 29.04, subdivision 6, the

supreme court has held that “[a] respondent can raise alternative arguments on appeal in

defense of the underlying decision when there are sufficient facts in the record for the

appellate court to consider the alternative theories, there is legal support for the

arguments, and the alternative grounds would not expand the relief previously granted.”

State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003).




                                            6
       Wondrasek contends that this principle from Grunig does not permit the state to

argue for the first time on appeal that other possible crimes justified an investigatory stop.

Relying on Cripps, he contends that the officer must provide the justification for the stop

at the omnibus hearing.

       In Cripps, two police officers were enforcing the minimum-age requirement for

the consumption of alcohol by asking patrons in some Mankato bars to produce

identification. 533 N.W.2d at 389. Cripps showed the officers her sister’s driver’s

license. Id. at 390. The officers did not think that Cripps looked like the photo on the

license, and Cripps eventually admitted that she was only 20 and using her sister’s

identification without her permission.      Id.   Cripps was charged with three counts,

including underage drinking. Id. Cripps moved to suppress the evidence obtained after

she was asked to produce identification. Id. At the omnibus hearing, one of the arresting

officers testified that she did not have criteria to identify the patrons who were asked to

produce identification, “It was basically just the first person I came up to in the bar.” Id.

at 392. The officer did not provide any individualized suspicion with respect to Cripps.

Id. The district court denied the motion to suppress and this court affirmed without

reaching the issue of individualized suspicion. Id. at 390. The supreme court reversed,

holding that “no evidence exist[ed] in the record with respect to [the officer’s]

conclusions regarding Cripps’ individual appearance.” Id. at 392.

       Here, Officer Allen testified at the omnibus hearing that dispatch informed him

and his partner that an anonymous person called and stated that “an adult was playing

with a gun with a juvenile” in the front yard of the home. Dispatch updated the officers


                                              7
while they were en route that the caller contacted the police again to say that the adult

had placed the gun in the back of a white Chevy Tahoe. Officer Allen further testified

that upon arrival, he saw an adult male and a boy standing two feet from a white Chevy

Tahoe, which was consistent with the caller’s information.

       Under Minn. Stat. § 609.66, subd. 1(a)(1), a person is guilty of a crime if he

“recklessly handles or uses a gun or other dangerous weapon or explosive so as to

endanger the safety of another.” “[O]ne acts recklessly by creating a substantial and

unjustifiable risk that one is aware of and disregards.” State v. Engle, 743 N.W.2d 592,

595 (Minn. 2008). The use of the word “playing” implies that the adult was behaving

carelessly or indifferently with the firearm. See The American Heritage Dictionary of the

English Language 1351 (5th ed. 2011) (defining “playing” as dealing or behaving

“carelessly or indifferently”). Behaving in such a manner could create a substantial and

unjustifiable risk to the safety of another.

       In contrast to Cripps, the factual record in this case contains sufficient evidence of

Officer Allen’s individualized suspicion of criminal activity at the time that he arrived at

Wondrasek’s home. Because Officer Allen had an objectively reasonable, articulable

suspicion that criminal activity was afoot before making the investigatory stop, the

district court did not err by denying the motion to suppress evidence of the gun and to

dismiss.

       Affirmed.




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