State v. Balenger

• Decision Date: 04 August 2003
• Docket Number: No. C8-02-2152.,C8-02-2152.
• Citation: 667 N.W.2d 133
• Parties: STATE of Minnesota, Appellant, v. Nikia Kylene BALENGER, Respondent.
• Court: Minnesota Court of Appeals

667 N.W.2d 133

STATE of Minnesota, Appellant, v. Nikia Kylene BALENGER, Respondent.

No. C8-02-2152.

Court of Appeals of Minnesota.

August 4, 2003.

Mike Hatch, Attorney General, St. Paul, and Jay M. Heffern, Minneapolis City Attorney, Michelle M. Jacobson, Assistant City Attorney, Minneapolis, for appellant.

Phillip S. Resnick, Resnick & Associates, PLLP, Minneapolis, for respondent.

Considered and decided by WILLIS, Presiding Judge, HUSPENI, Judge,¹ and FORSBERG, Judge.¹

OPINION

WILLIS, Judge.

After receiving a tip that respondent Nikia Balenger had just pointed a gun at another person, police approached Balenger and seized her by grabbing the back of her jersey and forcing her to stop. During the seizure, a gun fell from Balenger's person. The state charged Balenger with carrying a weapon without a permit, in violation of Minn.Stat. § 624.714, subd. 1(a) (2000). On appeal from an order suppressing evidence of the gun and dismissing the complaint, the state argues that the district court erred in concluding that the police exceeded the scope of a legitimate investigative stop by grabbing Balenger's jersey. Because we conclude that the court erred, we reverse and remand for further proceedings.

FACTS

At 1:20 a.m. on September 2, 2002, Minneapolis Police Officer Jeffrey Peterson was assisting with crowd control at the intersection of Fifth Street and Hennepin Avenue, when a female tapped him on the shoulder and told him that a person wearing a hat and an L.A. Lakers jersey had just pointed a gun at her friend. The tipster pointed at respondent Nikia Balenger and identified her as the person who had pointed the gun. The tipster then left the area before Officer Peterson had a chance to ask her any questions about her identity.

Officer Peterson reported the tip to his partner and began walking toward Balenger while radioing the information he had received to other officers in the area. Officer Peterson testified that as he approached Balenger, he saw her hands tucked under her jersey by her waist and that, based on his training and experience, he suspected that Balenger was hiding a gun.

In the meantime, Officer Scott Taylor, who had received Officer Peterson's call, saw Balenger walking across the street and began following her. He testified that (1) he could not see Balenger's hands but noticed that she was carrying a purse; (2) he called several times for Balenger to stop, saying, "Ma'am, stop," but Balenger continued walking briskly toward a crowded pizza restaurant; (3) the last time he commanded Balenger to stop he was within one or two feet of her; (4) concerned that Balenger posed a risk both to the public and to himself, he grabbed the back of her jersey and pulled her back just before she reached the restaurant's front door; (5) as he did so, he heard the sound of metal hitting the ground and saw a gun at Balenger's feet; and (6) there were no other people directly in front of the restaurant when he grabbed Balenger. Officer Peterson, who had seen the gun come "flying out," testified that he ran to secure it while his partner handcuffed Balenger. The officers determined that the gun was loaded and arrested Balenger.

The state charged Balenger with carrying a weapon without a permit, in violation of Minn.Stat. § 624.714, subd. 1(a) (2000). Balenger moved to suppress evidence of the gun, challenging the constitutionality of the stop. The court granted Balenger's motion and dismissed the complaint, ruling that although the tip was sufficiently reliable to justify an investigative stop and even a frisk, once Officer Taylor grabbed Balenger's jersey, he exceeded the scope of an investigative stop and "seized" Balenger without probable cause. By concluding that probable cause was necessary to justify Officer Taylor's conduct, the district court appears to have used the term "seizure" to mean "arrest."

The court noted on the record at the hearing that although the anonymous tip contained sufficient indicia of reliability to justify an investigative stop, the officers observed no independent criminal activity or furtive glances to justify "seizing" Balenger. The court discredited Officer Taylor's testimony that Balenger's hand was tucked under her jersey, giving him reason to believe that she was concealing something. The court also found that Balenger might not have heard Officer Taylor's command to stop. In its written order, the court specifically found that Officer Taylor's testimony that he asked Balenger to stop was not credible because Officer Taylor was confused about the location of the pizza restaurant and stated that there were no other people in front of the restaurant when he stopped Balenger.

This appeal follows the court's order suppressing the gun and dismissing the complaint.

ISSUES

I. Did Officer Taylor have a reasonable suspicion of criminal activity sufficient to justify an investigative stop of Balenger?

II. Did Officer Taylor transform an otherwise legitimate investigative stop into an arrest by grabbing the back of Balenger's jersey and forcing her to stop?

ANALYSIS

When reviewing pretrial orders on motions to suppress evidence, this court independently reviews the facts to determine, as a matter of law, whether the district court erred by suppressing, or not suppressing, the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

The Fourth Amendment protects "the right of the people to be secure * * * against unreasonable searches and seizures." U.S. Const. amend. IV; see also Minn. Const. art. I, § 10 (guaranteeing the right of people to be secure against unreasonable searches and seizures). A seizure occurs when, under the totality of the circumstances, a reasonable person would conclude that he or she is not free to leave. In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn.1993) (rejecting, in the exercise of its independent authority to interpret the state constitution, the U.S. Supreme Court's determination that a seizure occurs only when police use physical force to restrain a person or when a person physically submits to show of authority by police, and holding that juvenile was seized when police asked him to stop).

The state concedes that Officer Taylor seized Balenger when he grabbed the back of her jersey and forced her to stop, but it argues that the seizure was reasonable. Whether such a seizure, known as an investigative or Terry stop, is reasonable depends on (1) whether the stop was justified "at its inception" and (2) whether the actions of the police were reasonably related in scope to the circumstances that justified the stop in the first place. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).

I.

The district court concluded that the anonymous tip in this case was sufficiently reliable to justify the stop. Balenger argues, however, that the tip was insufficiently reliable because it was based on uncorroborated information provided by an anonymous tipster.² We disagree.

An investigative stop is justified when the police can point to specific and articulable facts that, together with rational inferences drawn from those facts, create reasonable suspicion of criminal activity. Terry, 392 U.S. at 21,88 S.Ct. at 1880. The suspicion must exist at the inception of the stop. Olson v. Comm'r of Pub. Safety, 371 N.W.2d 552, 556 (Minn.1985) (stating that "fourth amendment protection applies at the time the police intrusion is undertaken and is not to be judged by what the police learn after the intrusion").

Ordinarily, uncorroborated anonymous tips provided by private citizens are sufficient to justify an investigative stop because the reliability of the tipster may be presumed. Marben v. State, Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (concluding that CB radio communication from unidentified trucker was sufficient to support investigative stop of car, even though trooper saw nothing improper in operation of car, because trucker was private citizen and his reliability could be presumed); State v. Siegfried, 274 N.W.2d 113, 115 (Minn.1978) (concluding that first-time citizen informer's credibility is generally presumed); see also State v. Lindquist, 295 Minn. 398, 400, 205 N.W.2d 333, 335 (1973)

(considering fact that tipster was first-time private citizen informer not involved in the criminal event himself in assessing reliability of tip).

Similarly, uncorroborated anonymous tips provided to police face to face are sufficiently reliable to justify an investigative stop, because the tipster puts himself in a position where his identity might be traced, and he might be held accountable for providing any false information. State v. Davis, 393 N.W.2d 179, 181 (Minn.1986) (holding that tip provided by female passenger who leaned out of car window and, motioning to only car in view, shouted that car had just run red light was sufficiently reliable to justify investigative stop, even though officer did not see any improper driving before stopping suspect car); see also United States v. Lloyd, 36 F.3d 761, 763 (8th Cir.1994)

(holding that anonymous tip that several men were holding guns and drugs in lower level of nearby apartment complex was sufficiently reliable to justify further investigation where "witness spoke directly to the officers who were in a position to evaluate the credibility of the information provided").

Some federal courts have concluded that officers receiving an anonymous tip that a person is armed are almost invariably justified in conducting an investigative stop. See, e.g., United States v. DeBerry, 76 F.3d 884, 886 (7th Cir.1996)

(stating that "as a realistic matter [a tip that a person is armed] will require a stop in all cases"). But see United States v. McLeroy, 584 F.2d 746, 748 (5th Cir.1978) (holding stop unreasonable where tip indicated that defendant might be in possession of sawed-off shotgun). The element of imminent danger distinguishes a tip that a person is armed from...