State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1708

State of Minnesota,
Respondent,

vs.

Jamaul Anthony Brisco-Turner,
Appellant.

Filed August 7, 2017
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CR-14-35251

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, St. Paul, Minnesota; and

Sean R. Somermeyer, Special Assistant Public Defender, Faegre Baker Daniels LLP,
Minneapolis, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Johnson, Judge; and
Kalitowski, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
The Hennepin County District Court found Jamaul Anthony Brisco -Turner guilty
of being an ineligible person in possession of a firearm. Before trial, the district court
denied Brisco-Turner’s motion to suppress evidence of a firearm that was found on his
person in a pat-search. We conclude that the law-enforcement officer who performed the
pat-search had a reasonable, articulable suspicion that Brisco-Turner was engaging in
criminal activity and had a reasonable belief that he was armed and dangerous. Therefore,
we affirm.
FACTS
On December 3, 2014, Officer Buzicky of the Metro Transit Police Department was
conducting fare-compliance checks at the light-rail station at the Mall of America . The
officer stood on the platform at the end of the “paid-fare zone,” where passengers must exit
after walking off the train, and asked all passengers to show that they paid the required
fare.
As a group of passengers walked off a recently arrived train, Officer Buzicky
became suspicious of Brisco-Turner because he walked slowly toward the end of the
platform, as if he was avoiding the fare-compliance check. As Brisco-Turner got closer,
Officer Buzicky saw a clear plastic bag that appeared to contain marijuana hanging out of
a front pocket of Brisco-Turner’s pants. Officer Buzicky grabbed the bag and removed it
from Brisco-Turner’s pocket. Officer Buzicky asked Brisco-Turner to step to the side of
the platform. Brisco -Turner did not respond and did not make eye contact but, rather,
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looked past Officer Buzicky, which caused the officer to believe that Brisco-Turner might
either fight or flee. Officer Buzicky grabbed Brisco-Turner’s arm to guide him to the side
of the platform . As the officer did so , Brisco -Turner tried to walk past him. Officer
Buzicky placed Brisco-Turner in handcuffs and informed him that he was being detained.
After he was handcuffed, Brisco-Turner placed both of his hands down the back of
his pants. Officer Buzicky became concerned because he thought Brisco-Turner might be
reaching for a weapon. Officer Buzicky pulled Brisco-Turner’s hands out of his pants and
asked him for identification. Officer Buzicky saw that Brisco-Turner had a wallet in a back
pocket of his pants and removed it from the pocket. Brisco-Turner again placed his hands
down the back of his pants.
Officer Buzicky decided to conduct a pat -search of Brisco-Turner to determine
whether he had a weapon in his pants . Officer Buzicky walked Brisco-Turner a short
distance to the police substation. While walking, Officer Buzicky noticed that Brisco -
Turner was walking abnormally, as if he was trying to conceal a weapon. After arriving at
the substation, Officer Buzicky conducted a pat-search of Brisco-Turner. As he did so, a
handgun fell out of Brisco-Turner’s pants onto the floor. The substance in the clear plastic
bag that Officer Buzicky seized from Brisco -Turner’s pocket was tested and weighed and
was determined to be 5.2 grams of marijuana.
The next day, the state charged Brisco-Turner with one count of being an ineligible
person in possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(2) (2014).
In December 2015, Brisco-Turner moved to suppress the evidence of the handgun on the
ground that it was discovered in an unlawful search. After a two-day evidentiary hearing,
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the district court issued an order denying Brisco -Turner’s motion. The district court
reasoned that the search was valid for two reasons: first, because Officer Buzicky had
arrested Brisco-Turner and was permitted to conduct a search incident to arrest and, second,
because Officer Buzicky had a reasonable, articulable suspicion of criminal activity for an
investigatory stop and a reasonable belief that Brisco-Turner was armed and dangerous.
In July 2016, Brisco-Turner waived his right to a trial by jury and stipulated to the
prosecution’s case, and the parties agreed that the district court’s ruling on the motion to
suppress would be dispositive. See Minn. R. Crim. P. 26.01, subd. 4. The district court
found Brisco -Turner guilty and sentenced him to 60 months of imprisonment. Brisco-
Turner appeals.
D E C I S I O N
Brisco-Turner argues that the district court erred by denying his motion to suppress
evidence. He first contends that the search is not justified as a search incident to arrest
because Officer Buzicky did not have probable cause to arrest him for possession of
marijuana or for not paying the required fare . He also contends that the search is not
justified by a valid investigatory stop and a reasonable belief that he was armed and
dangerous. In its responsive brief, the state argues that the search is justified for both of
the reasons identified by the district court. At oral argument, the state suggested that the
more appropriate justification for the search is Officer Buzicky’s reasonable belief that
Brisco-Turner was armed and dangerous. Accordingly, we first will analyze that basis of
the district court’s order.
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A.
The Fourth Amendment to the United States Constitution guarantees the “right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV; see also Minn. Const. art. I, § 10. A law-
enforcement officer may not arrest a person without a warrant unless the officer has
probable cause to believe that the person has committed a crime. Ker v. California , 374
U.S. 23, 34 -35, 83 S. Ct. 1623, 1630 (1963) (plurality opinion); State v. W illiams, 794
N.W.2d 867, 871 (Minn. 2011). An officer may briefly detain a person for an investigation
of limited scope if the officer has a reasonable, articulable suspicion that the person has
engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968).
A reasonable, articulable suspicion exists if, “in justifying the particular intrusion the police
officer [is] able to point to specific and articulable facts which, taken together with rational
inferences from those facts , reasonably warrant that intrusion.” Id. The reasonable -
suspicion standard is not high, but the suspicion must be “something more than an
unarticulated hunch,” State v. Davis , 732 N.W.2d 173, 182 (Minn. 2007) (quotation
omitted), and more than an “inchoate and unparticularized suspicion,” State v. Timberlake,
744 N.W.2d 390, 393 (Minn. 2008). An officer “must be able to point to something that
objectively supports the suspicion at issue.” Davis, 732 N.W.2d at 182 (quotation omitted);
see also Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880.
As a general rule, a warrantless search is unreasonable. Missouri v. McNeely, 569
U.S. 141, ___, 133 S. Ct. 1552, 1558 (2013). But if, during an investigatory stop, an officer
has a reasonable belief that a suspect is armed and dangerous, the officer may conduct a
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pat-search of the suspect to find and remove any weapon that may present a risk to the
officer’s safety or the safety of others . Terry, 392 U.S. at 26-27, 88 S. Ct. at 1883. “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 wa s in danger.” Id. at 27, 88 S. Ct. at 1883. “The protective pat
search ‘must be strictly “limited to that which is necessary for the discovery of weapons
which might be used to harm the officer or others nearby.”’” State v. Lemert, 843 N.W.2d
227, 230 ( Minn. 2014) (quoting Minnesota v. Dickerson , 508 U.S. 366, 373, 113 S. Ct.
2130, 2136 (1993) (quoting Terry, 392 U.S. at 26, 88 S. Ct. at 1882)).
This court applies a clear -error standard of review to a district court’s findings
concerning the facts on which the officer based his actions. State v. Gauster, 752 N.W.2d
496, 502 (Minn. 2008). If the facts are established, we apply a de novo standard of review
to a district court’s determination whether a pat -search is valid. Lemert, 843 N.W.2d at
231.
B.
Officer Buzicky testified that he suspected that Brisco-Turner had not paid the
required fare because Brisco-Turner engaged in evasive conduct. Shortly thereafter, the
officer observed a bag of marijuana protruding from Brisco-Turner’s pocket. The district
court found the officer’s testimony to be “completely credible.” The officer’s testimony
establishes a reasonable, articulable suspicion of criminal activity that is sufficient to justify
his decision to conduct a limited investigatory detention . See State v. Dickerson , 481
N.W.2d 840, 843 (Minn. 1992) (stating that “defendant’s evasive conduct after eye contact
7
with police . . . justified police in reasonably suspecting criminal activity”), aff’d, 508 U.S.
366, 113 S. Ct. 2130 (1993).
Officer Buzicky also testified that, when he attempted to conduct a limited
investigation, Brisco-Turner did not cooperate but, rather, gave the officer the impression
that he might fight or flee . Th at testimony establishes a valid reason f or the officer ’s
decision to move Brisco-Turner to the side of the platform and to handcuff him. See
Michigan v. Summers , 452 U.S. 692, 70 2-03, 101 S. Ct. 2587, 2594 (1981) (stating that
officer may “exercise unquestio ned command of the situation” during investigatory
detention to ensure officer safety and prevent suspect from fleeing ). Brisco-Turner
contends that he was placed under arrest when he was handcuffed. But “briefly
handcuffing a suspect while the police so rt out the scene of an investigation does not per
se transform an investigatory detention into an arrest.” State v. Munson, 594 N.W.2d 128,
137 (Minn. 1999). An investigative detention cannot be characterized as a de facto arrest
if “the police diligentl y pursued a means of investigation that was likely to confirm or
dispel their suspicions quickly, during which time it was necessary to detain the defendant.”
United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575 (1985); see also Florida
v. Royer, 460 U.S. 491, 506, 103 S. Ct. 1319, 1329 (1983) ; State v. Moffatt, 450 N.W.2d
116, 119 (Minn. 1990); State v. Beckman , 354 N.W.2d 432, 436 (Minn. 1984 ). Thus,
Officer Buzicky did not extend the scope of Brisco-Turner’s detention by handcuffing him
in the course of the limited investigation.
Officer Buzicky further testified that, after being handcuffed, Brisco-Turner twice
attempted to put his hands inside his pants, which caused the officer to suspect that Brisco-
8
Turner might be trying to reach for a weapon. Officer Buzicky’s suspicion intensified
when he saw Brisco-Turner walking in an unusual way toward the police substation. That
testimony is sufficient to establish a reasonable belief that Brisco -Turner was armed and
dangerous during the inves tigatory detention , which justifies a pat -search to ensure t he
officer’s safety and the safety of other persons . See Terry, 392 U.S. at 27, 88 S. Ct. at
1883; State v. Alesso , 328 N.W.2d 685, 688 (Minn. 1982) ( concluding that officer was
justified in searching suspect who “made a furtive movement of his hand toward [his]
pocket, causing the officer to suspect that he might be reaching for a weapon ”). During
that pat-search, Officer Buzicky found the handgun tha t Brisco-Turner was ineligible to
possess.
In sum, the district court did not err by denying Brisco-Turner’s motion to suppress
evidence because, before conducting a pat-search of Brisco-Turner, Officer Buzicky had a
reasonable, articulable suspicion of criminal activity and a reasonable belief that Brisco -
Turner was armed and dangerous. In light of that conclusion, we need not consider Brisco-
Turner’s argument that the search was not a search incident to a valid arrest.
Affirmed.