Welfare of E.D.J., Matter of, C0-92-862

• Decision Date: 09 July 1993
• Docket Number: No. C0-92-862,C0-92-862
• Citation: 502 N.W.2d 779
• Parties: In the Matter of the WELFARE OF E.D.J.
• Court: Minnesota Supreme Court

Page 779

502 N.W.2d 779

62 USLW 2099

In the Matter of the WELFARE OF E.D.J.

No. C0-92-862.

Supreme Court of Minnesota.

July 9, 1993.

Syllabus by the Court

Police officer's directive to person to stop constituted a "seizure" of the person under Minn. Const. art. I, § 10, even though person did not immediately comply with order.

Warren R. Sagstuen, Asst. Public Defender, Minneapolis, William R. Kennedy, Hennepin County Public Defender, for appellant.

Hubert H. Humphrey, III, Minnesota Atty. Gen., St. Paul, Michael Richardson, Asst. County Atty., Minneapolis, for respondent.

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

OPINION

KEITH, Chief Justice.

In a series of decisions, we have articulated and reiterated the standard to be used by a trial court in determining at a suppression hearing in a criminal case whether an investigatory "seizure" of the person of the defendant by the police occurred. We have made it clear that the trial court should determine objectively, on the basis of the totality of the circumstances, whether a reasonable person in the defendant's shoes would have concluded that he or she was not free to leave.

Recently, the United States Supreme Court, in a sharp departure from this approach, concluded that, under the Fourth Amendment, a "seizure" of the person occurs only when police use physical force to restrain a person or, absent that, when a person physically submits to a show of authority by the police. California v. Hodari, --- U.S. ----, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

Exercising our independent authority to interpret our own state constitution, Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983), we have concluded that trial courts in Minnesota, in determining whether a "seizure" of the person of the defendant by police occurred, should not follow the recently adopted Hodari approach but should continue to apply the familiar approach we have previously articulated and reiterated. Following this familiar approach, we conclude that an unlawful "seizure" of the person occurred in this case and that the trial court erred in denying the motion to suppress evidence abandoned by appellant in response to the unlawful conduct of the police. Accordingly, we reverse the decision of the court of appeals and vacate the district court's determination that appellant, a juvenile, committed a delinquent act.

At 6:45 p.m. on February 22, 1992, two Minneapolis police officers on routine patrol saw three men--two were adults, one was a juvenile--standing on the southeast corner of 38th Street and Fourth Avenue South. The officers knew this corner to be an area of heavy trafficking in crack cocaine. When the three men saw the police car approaching from the west, they turned and began walking in an easterly direction on 38th, looking back again as they did so. The officers pulled up behind the men and ordered them to stop. The two older men stopped instantly. However, E.D.J., the juvenile, continued walking for approximately five steps, dropped something, took two more steps, then stopped and turned around.

E.D.J. was arrested and subsequently charged in juvenile court with having committed a delinquent act, specifically, fifth-degree possession of a controlled substance, namely crack cocaine. Minn.Stat. § 152.025, subd. 2(1) (1992). The trial court denied E.D.J.'s motion to suppress. Relying on Hodari, it reasoned that E.D.J. abandoned the cocaine before he was seized and that therefore the abandonment was not the suppressible fruit of any illegal conduct. See State v. Dineen, 296 N.W.2d 421, 422 (Minn.1980).

At the trial on the merits, the trial court found that E.D.J. had committed a delinquent act. The trial court then placed E.D.J. on probation and ordered him to perform 40 hours of community service.

The court of appeals, also relying on Hodari, affirmed. In re E.D.J., 492 N.W.2d 829 (Minn.App.1992). We granted E.D.J.'s petition for review.

In State v. Fuller, 374 N.W.2d 722 (Minn.1985), in an opinion by Justice Peterson, we said:

It is axiomatic that a state supreme court may interpret its own state constitution to offer greater protection of individual rights than does the federal constitution. Indeed, as the highest court of this state, we are " 'independently responsible for safeguarding the rights of [our] citizens.' " State courts are, and should be, the first line of defense for individual liberties within the federalist system. This, of course, does not mean that we will or should cavalierly construe our constitution more expansively than the United States Supreme Court has construed the federal constitution. Indeed, a decision of the United States Supreme Court interpreting a comparable provision of the federal constitution that, as here, is textually identical to a provision of our constitution, is of inherently persuasive, although not necessarily compelling, force.

Id. at 726-27 (citations omitted) (footnote omitted). The language of Minn. Const. art. I, § 10, is identical to that of the Fourth Amendment of the United States Constitution. The decisions of the United States Supreme Court interpreting and applying the Fourth Amendment are therefore decisions to which we invariably turn in the first instance whenever we are asked in a criminal case whether the police conduct constitutes an unreasonable search and seizure.

In this case the issue is whether a "seizure" occurred when the police pulled up and ordered E.D.J. to stop or whether it occurred moments later when he actually submitted to the order. The answer to the question given by the United States Supreme Court in its recent decision in Hodari is that the "seizure" did not occur until E.D.J. actually submitted to the authority of the police by stopping. Hodari, 111 S.Ct. at 1552.

We do not "cavalierly" reject the Hodari approach. Rather, we reject it because (a) we have had considerable experience in applying the standard which the Court in Hodari rejected, (b) we are not persuaded by the arguments favoring the Hodari approach, and (c) we are persuaded that there is no need to depart from the pre-Hodari approach.

In Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968), Chief Justice Warren, speaking for the United States Supreme Court, stated that "not all personal intercourse between policemen and citizens involves 'seizures' of persons" and that a "seizure" occurs only "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen."

In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), the Court elaborated on this. Justice Stewart, announcing the judgment of the Court in an opinion joined by one other justice, said:

We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

On the facts of this case, no "seizure" of the respondent occurred. The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents. They requested, but did not demand to see the respondent's identification and ticket. Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest. The respondent was not seized simply by reason of the fact that the agents approached her, asked if she would show them her ticket and identification, and posed to her a few questions. Nor was it enough to establish a seizure that the person asking the question was a law enforcement official.

Id. at 554-55, 100 S.Ct. at 1877 (citations omitted). Three concurring justices did not comment on the Stewart standard; four dissenters did not question the standard used by Stewart but said he had overlooked certain facts that would support a determination that a "seizure" occurred.

The standard articulated by Justice Stewart in Mendenhall was fully accepted by a majority of the Court in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), which we summarized in detail in State v. Lande, 350 N.W.2d 355, 357 n. 1 (1984). Specifically, a majority of the Court agreed that it was not a "seizure" for the police to merely approach the defendant in the airport and ask to see his ticket and his driver's license. Royer, 460 U.S. at 501, 103 S.Ct. at 1326. In Royer the "line was crossed" only when the police went beyond this and identified themselves as narcotics officers, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to a police room without telling him that he was free to leave. Id.

As stated by Professor LaFave, the Mendenhall/ Royer standard:

rests upon the proposition that police, without...