State v. Timberlake, No. A06-72.

• Decision Date: 14 February 2008
• Docket Number: No. A06-72.
• Citation: 744 N.W.2d 390
• Parties: STATE of Minnesota, Respondent, v. Tavon Tarrel TIMBERLAKE, Appellant.
• Court: Minnesota Supreme Court

744 N.W.2d 390

STATE of Minnesota, Respondent, v. Tavon Tarrel TIMBERLAKE, Appellant.

No. A06-72.

Supreme Court of Minnesota.

February 14, 2008.

Heard, considered, and decided by the court en banc.

OPINION

GIL DEA, Justice.

Appellant Tavon Tarrel Timberlake was charged as a felon in possession of a firearm, in violation of Minn.Stat. § 624.713, subd. 1(b) (2006). Timberlake moved to suppress the gun, arguing that the search was unlawful because police did not have a sufficient basis to stop the motor vehicle in which he was a passenger. The district court denied the motion, and the court of appeals reversed. Because we conclude that police had a sufficient basis to conduct an investigatory stop of the vehicle, we reverse.

We begin with a brief discussion of the facts giving rise to this offense. While on routine patrol on May 30, 2004, St. Paul police officers Robert Jerue and Axel Henry monitored a dispatch call that came in at approximately 11:30 p.m. The dispatch. informed squads in the area that the department had received a 911 call from an identified private citizen. The caller told police that a black male and black female were just seen leaving a gas station in a white Pontiac Grand Prix. The female was the driver and the male was the passenger. The caller further explained that while at the gas station "[h]e saw the male get out," and "[w]hen the male exited the vehicle, something fell off of his lap or out of his pocket, out of his hand." The caller saw "what he described as a gun to the dispatcher, laying on the ground."¹ He "then saw the black male passenger quickly pick up the gun and get back into the car." The caller gave police his name and phone number and said that he would testify if necessary.

The officers were in the area of the gas station, and within a half-minute of hearing the dispatch information, officers Jerue and Henry saw a black female driving a white Grand Prix with a black male riding in the passenger seat. Based on the information they received from the dispatch call, the officers stopped the Grand Prix. After removing the driver and the passenger, who was subsequently identified as Timberlake, police found a loaded semiautomatic handgun under the front passenger seat. Timberlake was then arrested and subsequently charged as a felon in possession of a firearm, in violation of Minn.Stat. § 624.713, subd. 1(b) (prohibiting "a person who has been convicted of * * * a crime of violence" from possessing a pistol or other firearm).²

Prior to trial, Timberlake asked the district court to suppress the gun. The court denied the motion. Following a jury trial, Timberlake was found guilty of violating Minn.Stat. § 624.713, subd. 1(b), convicted, and sentenced to 60 months in prison. On appeal, the court of appeals reversed, holding that the police did not have a sufficient basis to stop the vehicle. State v. Timberlake, 726 N.W.2d 509, 516 (Minn.App. 2007). Specifically, the court concluded that "mere suspicion that a person possesses a gun is insufficient to warrant a Terry stop, absent additional particular and objective facts which create a reasonable suspicion that the possessor does not have a permit or is otherwise about to commit a crime." Id. at 514. We granted the State's petition for review.

We are asked to determine whether the district court erred when it denied Timberlake's motion to suppress the gun. When we review a pretrial order on a motion to suppress where the facts are not in dispute, as here, we review the decision de novo and "determine whether the police articulated an adequate basis for the search or seizure at issue." State v. Flowers, 734 N.W.2d 239, 247-48 (Minn.2007),

Both the United States and Minnesota Constitutions protect against "unreasonable searches and seizures." U.S. Const. amend. IV; Minn. Const. art. I, § 10. To determine whether this constitutional prohibition has been violated, we examine the specific police conduct at issue. See State v. Davis, 732 N.W.2d 173, 178 (Minn.2007). The conduct at issue here is the investigatory stop of a motor vehicle. The 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." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). We have held that the "principles and framework of Terry [apply when] evaluating the reasonableness of [searches and] seizures during traffic stops even when a minor law has been violated." State v. Askerooth, 681 N.W.2d 353, 363 (Minn.2004); see also State v. Wiegand, 645 N.W.2d 125, 133 (Minn.2002) (concluding that "the Terry principles are appropriately applied * * * when a motor vehicle is stopped"). The question before us therefore is whether a report from an identified private citizen that a person is carrying a gun in a motor vehicle provides police with a reasonable, articulable suspicion of criminal activity sufficient to justify an investigatory stop of the motor vehicle.³

We have recognized that "the reasonable suspicion standard is `not high.'" State v. Bourke, 718 N.W.2d 922, 927 (Minn.2006) (quoting Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997)). While the standard is less demanding than probable cause or a preponderance of the evidence, it "requires at least a minimal level of objective justification for making the stop." Wardlow, 528 U.S. at 123, 120 S.Ct. 673 (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). Police "must be able to articulate more than an `inchoate and unparticularized suspicion or "hunch"' of criminal activity." Id. at 123-24, 120 S.Ct. 673 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). They must articulate a "particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). That 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." In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn.1997).

The reasonable suspicion standard can also be met based on information provided by a reliable informant. Id. But information given by an informant must bear indicia of reliability that make the alleged criminal conduct sufficiently likely to justify an investigatory stop by police. See Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (face-to-face information from a known informant "carried enough indicia of reliability to justify the officer's forcible stop of [the defendant]."). "We presume that tips from private citizen informants are reliable." Davis, 732 N.W.2d at 182. This is especially the case "when informants give information about their identity so that the police can locate them if necessary." Id. at 183 (citing City of Minnetonka v. Shepherd, 420 N.W.2d 887, 888, 890 (Minn. 1988), for the proposition "that a tip from an informant identifying himself as `a station attendant at the Q Petroleum Station in Minnetonka' that he had `observed an intoxicated driver leave the gas station' in a vehicle he identified by color and license plate was sufficient to give police reasonable suspicion that the driver was intoxicated"). Timberlake does not dispute the caller's reliability in this case. Rather, his argument hinges on the legality of possessing a firearm in public.⁴

Timberlake contends that because it is legal in Minnesota for a private citizen to carry a permitted gun in public, police may not conduct an investigatory stop without additional evidence that the possession itself is illegal. For example, Timberlake argues the police would need to suspect that the person carrying the gun does not have a valid permit or that some other criminal activity is afoot to warrant an investigatory stop. The State argues that police may conduct an investigatory stop of a motor vehicle without running afoul of the Constitution based on a report of gun possession inside the vehicle, because it is unlawful in Minnesota to possess a gun in a public place without a permit. Because the parties' arguments are based on Minnesota's firearm permit law, we turn first to an examination of that statute and our jurisprudence construing it.⁵

Minnesota Statutes § 624.714, subdivision 1a (2006), provides that "[a] person * * * who * * * possesses a pistol in a motor vehicle * * * without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor." We first construed this language in State v. Paige and concluded that "[t]he statute is * * * properly characterized as a `general prohibition'" on the possession of firearms in public because "[a]nyone having a firearm in a public place may be prosecuted if he has no permit." 256 N.W.2d 298, 303 (Minn.1977); see also State v. Folstrom, 331 N.W.2d 231, 233 (Minn.1983) ("[P]ossession of a pistol without a permit [is] a crime * * *".). We determined in Paige that the "without a permit" language does not add another element to the crime of carrying a pistol in a public place.⁶ 256 N.W.2d at 203. Instead of an element of the crime, we said that the "without a permit" language creates an exception to criminal liability that places a burden on the defendant to come forward with some evidence of a permit. Id. at 303-04. Accordingly, we held that the State did not have to prove as part of its case-in-chief that the defendant did not have a permit. Id. at 303.⁷

The State argues that consistent with our determination in Paige that lack of a permit was not an element of the offense, the police in this case did not need to know whether Timberlake had a permit in order to have a reasonable suspicion that Timberlake...