State of Minnesota v. Anthony Alan Early

This opinion will be unpublished and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
A15-0180

State of Minnesota,
Respondent,

vs.

Anthony Alan Early,
Appellant.

Filed January 19, 2016
Affirmed
Halbrooks, Judge

Hennepin County District Court
File No. 27-CR-13-25181

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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Ross, Presiding Judge; Halbrooks, Judge; and Chutich,

Judge.

UNPUBLISHED OPINION

HALBROOKS, Judge

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

and argues that his case should be remanded for an additional hearing in order to
reconcile conflicting testimony. Because we find no error in the denial of appellant’s

motion to suppress, we affirm.

FACTS

At approximately 11:30 p.m. on August 3, 2013, AlliedBarton Security Services

shift supervisor Cordarryl Thames was conducting regular video surveillance in

downtown Minneapolis when he observed appellant Anthony Alan Early unbutton his

pants and “fix himself up.” Thames continued watching as Early pulled an object

resembling a gun out of his girlfriend’s purse and put it into the waistband of his pants.

While observing Early, Thames received a phone call from a local, regular hot dog

vendor who reported seeing a man fitting Early’s description place a gun in his

waistband. Thames radioed for off-duty police officer Steven Laux to assist him in

confronting Early.

Thames and Laux approached Early in tandem. Thames testified that he had Early

place his hands against the wall so that Laux could perform a Terry frisk for weapons.

Laux frisked Early and felt the butt of a handgun in the front center of his waistband.

Both Early and his girlfriend were placed in handcuffs for safety reasons as the bus stop

was very busy. After Early was placed in handcuffs, the gun was removed, and Early and

his girlfriend were taken to the security office for further questioning because Laux felt

greatly outnumbered by the number of people on the street. There, Early consented to a

search of his person and was asked whether he had a permit to carry the weapon. He did

not have a permit, claiming he was holding it for his girlfriend. He was then arrested.

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 At the time of the arrest, Laux knew only that Early was in violation for

possessing the gun without a permit. During a subsequent investigation, the state

discovered that Early was convicted in 2002 of first-degree criminal sexual conduct.

Based on that conviction, the state charged Early with one count of prohibited person in

possession of a firearm. See Minn. Stat. § 624.713, subd. 1(2) (2012). Early moved to

suppress all evidence concerning the firearm and all findings from the police before the

arrest, arguing that the gun was the fruit of an illegal search incident to arrest.

The district court denied Early’s motion, finding that Thames and Laux properly

conducted a lawful Terry frisk based on actual observations by Thames and the vendor.

Early agreed to a Lothenbach stipulated-facts procedure and validly waived his jury-trial

rights. The district court convicted Early and sentenced him to 42 months in prison.

Early now appeals the denial of his motion to suppress evidence.

DECISION

I.

“When reviewing pretrial orders on motions to suppress evidence, we may

independently review the facts and determine, as a matter of law, whether the district

court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590

N.W.2d 90, 98 (Minn. 1999). We review the district court’s findings of fact under a

clearly erroneous standard, but legal determinations are reviewed de novo. State v.

Bourke, 718 N.W.2d 922, 927 (Minn. 2006).

Early argues that the district court erred by denying his motion to suppress

evidence of the gun after an illegal search incident to arrest, contending that (1) Laux was

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required to independently corroborate the reports from Thames and the vendor and

(2) Laux lacked probable cause to arrest Early when he handcuffed him at the bus stop.

The United States and Minnesota Constitutions prohibit unreasonable searches and

seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Whether the constitution has

been violated is dependent upon the specific police conduct at issue. State v. Timberlake,

744 N.W.2d 390, 393 (Minn. 2008). The conduct at issue here is an investigative stop

conducted after suspicion arose of a concealed gun on public property. “Warrantless

searches ‘are per se unreasonable under the fourth amendment—subject only to a few

specifically established and well-delineated exceptions.’” State v. Dickerson, 481

N.W.2d 840, 843 (Minn. 1992) (quoting Katz v. United States, 389 U.S. 347, 357, 88

S. Ct. 507-514 (1967)).

One such exception was recognized in Terry v. Ohio, which set forth the

circumstances in which police may constitutionally “stop and frisk” suspicious persons

without a warrant. 392 U.S. 1, 30-31, 88 S. Ct. 1868, 1884-85 (1968). Under Terry,

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.” Dickerson, 481 N.W.2d

at 843. Police may conduct an investigative Terry frisk if “specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant that

intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. at 1880.

Early first argues that Laux was required to independently corroborate reports of

Early’s suspicious behavior before arresting him and urges this court to employ the

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constitutional requirements for an unreliable informant. But here, both Thames and the

vendor were known, reliable informants. Thames was a security officer who, in the

course of his professional duties, observed Early transfer a handgun from his girlfriend’s

purse to his waistband late at night in a busy part of town. Early concedes that “Thames

would likely be considered a reliable source of information” but takes issue with the

vendor’s reliability. But “‘[w]e presume that tips from private citizen informants are

reliable,’” especially “‘when informants give information about their identity so that the

police can locate them if necessary.’” Timberlake, 744 N.W.2d at 394 (quoting State v.

Davis, 732 N.W.2d 173, 182-83 (Minn. 2007)).

The vendor qualifies as a reliable informant because he was able to be located by

police, which Laux did after the arrest. See, e.g., City of Minnetonka v. Shepherd, 420

N.W.2d 887, 888, 890 (Minn. 1988) (holding that a tip from an informant identifying

himself as ‘a station attendant at the Q Petroleum Station in Minnetonka’ who 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). Thames knew the vendor because the vendor worked in the area Thames

was charged with monitoring. Thames relayed this information to Laux, and Laux

located and spoke with the vendor after the arrest. Laux also testified that he recognized

the vendor as someone who regularly worked in the same location during the warmer

months. For these reasons, Laux was not required to corroborate reports of Early before

conducting his investigation.

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 Early also asserts that the gun should be suppressed because Laux did not have

probable cause to stop him. Early argues that Thames and Laux had no reason to believe

that he was involved in the commission of a crime, nor any reason to believe that he

unlawfully possessed the gun. It is undisputed that Early was cooperative and compliant

with Thames and Laux. He made no furtive movements and did not discard anything

when he was approached. But Thames and Laux did not need probable cause to approach

Early; they needed only reasonable suspicion. Terry permits a protective frisk for

weapons. Dickerson, 481 N.W.2d at 844. “The officer need not be absolutely certain

that the individual is armed; the issue is whether a reasonably prudent man in the

circumstances would be warranted in the belief that his safety or that of others was in

danger.” Terry, 392 U.S. at 27, 88 S. Ct. at 1883. “The purpose of this limited search is

not to discover evidence of crime, but to allow the officer to pursue his investigation

without fear of violence . . . .” Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921,

1923 (1972). When determining whether an officer reasonably conducted a pat-frisk,

“due weight must be given . . . to the specific reasonable inferences which he is entitled

to draw from the facts in light of his experience.” Terry, 392 U.S. at 27, 88 S. Ct. at

1883.

While some police actions can turn a Terry frisk into a de facto arrest, not every

action does so. State v. Flowers, 734 N.W.2d 239, 254 n.16 (Minn. 2007) (providing

examples of police actions not resulting in de facto arrests). “[A] person who is being

detained temporarily is not free to leave during the period of detention, yet that does not

[necessarily] convert the detention into an arrest.” State v. Moffatt, 450 N.W.2d 116, 120

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(Minn. 1990). Even Early concedes that “briefly handcuffing a suspect while the police

sort out a scene of an investigation does not per se transform an investigatory detention

into an arrest.” See State v. Munson, 594 N.W.2d 128, 137 (Minn. 1999).

Laux testified that the particular area they responded to was a “very, very busy bus

stop” and that “[a] lot of problems . . . occur there.” Because of this, he felt “greatly

outnumbered.” So Laux handcuffed Early before he and Thames took him to the

AlliedBarton office. Once there, Laux continued the investigation because he “felt [he]

was in a controlled environment, at least for [his] safety and everyone else’s safety.” The

district court agreed that the event happened “late at night in a busy and, unfortunately,

dangerous part of town at that hour,” concluding that Thames’s actual observations of

Early combined with a corroborated report by the vendor provided Thames and Laux

with the reasonable suspicion necessary to perform an investigatory stop of Early.

Further investigation in the AlliedBarton office revealed that Early was unable to

produce a permit to carry a gun. It was at this point that Laux acquired probable cause to

continue his investigation and arrest because, as the district court correctly noted, “it is

illegal to carry a concealed weapon in public unless the individual has a permit; the

permit is an affirmative defense to the offense.” See State v. Williams, 794 N.W.2d 867,

872 (Minn. 2011). When the officer confiscated the weapon, he found a full magazine of

rounds with one loaded in the chamber. The district court found that the officers had

reasonable suspicion to conclude that criminal activity was afoot and that Early was

armed and dangerous based on Thames’s first-hand account of Early’s actions and the

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vendor’s first-hand account of the same. For these reasons, the district court’s factual

determinations are not clearly erroneous.

II.

In the alternative, Early contends that this court must remand for further omnibus

hearings because Thames and Laux “diverged in significant respects critical to the

resolution of the disputed legal issue” of when Early was handcuffed. The state asserts

that this issue was waived when Early agreed to a Lothenbach stipulated-facts procedure

under Minn. R. Crim. P. 26.01, subd. 3, and argues that, even if Early had not stipulated

to the testimony at trial, the conflicting testimony is not critically determinative.

Early correctly notes that the appeal falls under rule 26.01, subdivision 4, and not

subdivision 3. This properly preserved the dispositive issue for appellate review, which

the district court indicated by acknowledging the dispositive nature of the issue with

counsel. Although Early is correct that the issue was properly preserved for appellate

review, his argument nevertheless fails because the testimony is not critically

determinative. The arrest did not occur at the moment Early contends it did—when his

hands were placed against the wall while still at the bus stop. Early was handcuffed

during the investigatory search because the officers had legitimate safety concerns,

including reports that he was armed, Laux feeling outnumbered, and the possibility that

the location itself was unsafe. Early was not arrested until he was in the AlliedBarton

security office with Thames and Laux. For these reasons, we affirm the district court’s

decision.

Affirmed.

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