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This opinion will be unpublished and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
A16-1887

State of Minnesota,
Respondent,

vs.

Chakotay Bobbie Johnson,
Appellant.

Filed December 11, 2017
Affirmed
Reyes, Judge
Jesson, Judge, Dissenting

St. Louis County District Court
File No. 69DU-CR-15-4365

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

Mark S. Rubin, St. Louis County Attorney, Jessica J. Fralich, Assistant County Attorney,
Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Reilly, Judge; and Reyes,
Judge.

2
U N P U B L I S H E D O P I N I O N
REYES, Judge
On appeal from his convic tion of first-degree sale of a controlled substance,
appellant argues that the district court erre d in denying appellant’s motion to suppress
evidence obtained during an unlawful seizure. We affirm.
FACTS
In November and December 2015, law enforcement received information from two
confidential reliable informants (CRIs) that an apartment located on Grand Avenue in
Duluth was being used to sell heroin. The CRIs informed the officers that two residents of
the apartment were working with a group of black males from Chicago, Illinois, and selling
heroin in an area behind the apartment. The CRIs did not know the apartment residents by
name. The investigating officers conducted surveillance of the apartment and observed the
two residents, A.C. and A.R., engage in hand-to-hand drug transactions. The officers also
learned that the group from Ch icago was in Duluth at that time and typically brought
substantial quantities of heroin. On December 6, 2015, the officers obtained a warrant to
search the apartment.
The next morning, the offi cers surveilled the apartment prior to executing the search
warrant. At approximately 10:43 a.m., the officers observed A.C., A.R., and an unknown
black male, later identified as appellant Chakotay Bobbie Johnson, arrive in a white Toyota
Corolla registered to A.C. and park near the apartment. They exited the vehicle and walked
toward the front door of the apartment. The officers observed appellant carrying a bulky
object, later determined to be a black bag, concealed underneath a blanket.
3
After they walked past the front of the apartment building, two officers in plain
clothes drew their guns and ordered all thr ee to lie face down on the ground. Three
additional officers joined to secure and handcuff them. One officer approached appellant
to place handcuffs on him, and a second officer knelt by appella nt to move the black bag
from his reach. From their va ntage points, both officers could see inside appellant’s
unzipped right jacket pocket and observed a baggie containing numerous smaller baggies
and what appeared to be heroin in plain view.
The officers placed appellant under arrest and searched him. They discovered 61
individually wrapped baggies of suspected heroin, weighing 32 .4 grams, on his person.
The suspected heroin field-tested positive for heroin. The officers also discovered $7,440
in U.S. currency and assorted clothing and personal items within the black bag. The state
charged appellant with felony first-degree sale of a controlled substa nce in violation of
Minn. Stat. § 152.021, subd. 1(1) (2014).
Prior to trial, appellant filed a motion to suppress the heroin, arguing that it was the
fruit of an unlawful seizure. The district co urt denied appellant’s motion and determined
that the officers’ seizure of appellant was re asonable in view of the circumstances of the
situation and law-enforcement interests, par ticularly officer safety. Appellant filed a
motion to reconsider, which the district court denied.
Appellant waived his right to a jury trial and agreed to proceed to trial before the
district court to preserve appellate review of the pretrial suppression ruling pursuant to
Minn. R. Crim. P. 26.01, subd. 4. The distri ct court convicted appellant of felony first-
degree sale of a controlled substance. This appeal follows.
4
D E C I S I O N
On a stipulated-evidence trial pursuant to Minn. R. Crim. P. 26.01, subd. 4, our
review “is limited to the pretrial order that denied the motion to suppress.” State v. Sterling,
782 N.W.2d 579, 581 (Minn. App. 2010). “[W]e may independently review the facts and
determine, as a matter of law, whether th e 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 factual findings for clear error. State v. Gauster, 752 N.W.2d 496, 502
(Minn. 2008). When the facts are not in disput e, as here, we review the pretrial 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).
Here, the parties agree that the officers seized appellant. The only issue in dispute
is whether the officers lawfully seized appellant.
I. The officers’ seizure of appellant was not authorized as a detention incident to
the execution of a search warrant be cause appellant did not occupy the
apartment subject to the search warrant.

The district court analyzed the facts using a Summers analysis. Appellant challenges
the district court’s denial of his motion to suppress evidence, arguing that the Michigan v.
Summers rule, which authorizes detention incident to the execution of a search warrant, is
inapplicable because appellant was a nonoccupant of the apartment subject to the search
warrant. See 452 U.S. 692, 705, 101 S. Ct. 2587, 2595-96 (1981). We agree.
The Fourth Amendment to the United States Constitution and Article I, Section 10,
of the Minnesota Constitution guar antee the “right of the peop le to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
5
Const. amend. IV; Minn. Const. art. 1, § 10. As a general rule, a seizure is unreasonable
unless it is based on probable cause to believe that the person has committed a crime.
Bailey v. United States, 568 U.S. 186, 192, 133 S. Ct. 1031, 1037 (2013). As an exception
to this general rule, the United States Supreme Court held in Michigan v. Summers that a
search warrant “implicitly carries with it the limited authority to detain the occupants of
the premises while a proper search is conducted.” 452 U.S. at 705, 101 S. Ct. at 2595.
The Supreme Court did not define “occupant” in the Summers decision and has not
since expanded on a definition. United States v. Johnson, 640 F.3d 843, 845 n.3 (8th Cir.
2011). However, the Supreme Court’s rationale in Summers suggests that it limited its
holding to individuals residing at the place to be searched. 452 U.S. at 704-05, 101 S. Ct.
at 2595. The Supreme Court concluded that, on balance, the interests of law enforcement
during the execution of a search warrant are substantial compared to the slight increase in
the intrusion on individual liber ty when a person whose reside nce is already subject to a
search is also detained. Id. at 703, 101 S. Ct. at 2594; Muehler v. Mena, 544 U.S. 93, 98
125 S. Ct. 1465, 1469 (2005). An “occupant” is “one who o ccupies a particular place;
especially: RESIDENT.” Merriam-Webster’s Collegiate Dictionary 858 (11th ed. 2014).
Neither the State nor the district court cited caselaw where the detention of a nonoccupant
was justified based solely on the Summers rule.
Here, no facts show that appe llant resided at or occupied the apartment subject to
the search warrant and the officers detained him outside of the apartment. Appellant
produced an Illinois ID after his arrest, a nd the officers had no t observed him at the
apartment before detaining him. Moreover, the district cour t referred to appellant as a
6
nonoccupant of the apartment. The state also conceded in its brief and at oral argument
that appellant was a nonoccupant. We conclude that appellant was neither an occupant of
the apartment nor subject to the search warrant and his detention cannot be justified solely
on the basis of Summers.1
II. The officers’ seizure of appellant was authorized as an investigatory detention
because the officers possessed a reason able, articulable basis to suspect
appellant of criminal activity.

The state alternatively argues that the officers had a reasonable, articulable
suspicion to detain appellant. We may consid er an alternative argument when the record
contains sufficient facts to support our consideration. State v. Bunce, 669 N.W.2d 394, 400
(Minn. App. 2003) (citing State v. Grunig, 660 N.W.2d 134 (Minn. 2003)), review denied
(Minn. Dec. 16, 2003). At the hearing on a ppellant’s motion to reconsider, the district
court suggested that the police reports did no t support the state’s argument. However, in
its order denying appellant’s suppression motion, the district court relied in part on State v.
Bitterman, 304 Minn. 481, 232 N.W.2d 91 (1975). In Bitterman, the Minnesota Supreme
Court affirmed the detention and frisk of a nonoccupant who had arrived at a residence
during the execution of a search warrant. Id. at 484-85, 232 N.W.2d at 94. The supreme
court concluded that the detention was jus tified because the officers had reasonable,
articulable suspicion in light of the circumstances and facts of the situation. Id.
Here, the district court evaluated both the Summers law-enforcement interests and
the circumstances and facts known to the officer s at the time of appellant’s detention and

1 We need not address appellant’s additiona l arguments concerning the inapplicability of
the Summers rule.
7
determined that it was reasonable to detain appellant. We conclude that the reasonable-
suspicion argument is properly before this court.
A. The officers had a reason able, articulable suspicion of criminal activity.

Appellant argues that the officers did not articulate a reasonable basis for detaining
him. We disagree.
Under Terry v. Ohio, a police officer may temporarily seize a person if the officer
has a reasonable, articulable basis to suspect that person of criminal activity. State v. Diede,
795 N.W.2d 836, 842 (Minn. 2011) (discussing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868
(1968)). To determine whether an investigatory detention is reasonable, we ask “whether
the stop was justified at its inception . . . [and] whether the actions of the police during the
stop were reasonably related to and justified by the circumstances that gave rise to the stop
in the first place.” State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (citing Terry,
392 U.S. at 19-20, 88 S. Ct. at 1879).
The reasonable-suspicion standard is not high, but cannot be based solely on a
hunch. Diede, 795 N.W.2d at 843. The subjective be liefs of the officer are not the focus
of our inquiry. State v. Lemert, 843 N.W.2d 227, 231 (Minn. 2014). We apply a totality-
of-the-circumstances test to review the officer’s suspic ion from the perspective of a
reasonable officer in light of any inferenc es and deductions drawn from the officer’s
training and experience. State v. Smith 814 N.W.2d 346, 351- 352 (Minn. 2012). We
review the constitutional basis for the seizure de novo. Flowers, 734 N.W.2d at 248.
The district court noted the following fa cts and circumstances available to the
officers at the time of appellant’s detention: (1) information of illegal drug trafficking
8
occurring at the apartment o ccupied by A.C. and A.R.; (2) observation of A.C. and A.R.
selling heroin; (3) possession of a probable-ca use warrant to search the apartment for
narcotics; (4) information that a group of black males from Chicago was supplying
substantial quantities of heroin to the area, was working with A.C. and A.R. to sell heroin,
and had recently brought a supply; (5) observation of appellant, a black male, arriving with
A.C. and A.R. in their car; and (6) observatio n of appellant accompanying A.C. and A.R.
toward the front door of the apartment the officers were about to search. The officers also
observed appellant carrying a bulky object concealed underneath a blanket as he
accompanied the occupants toward their apartment.
In light of the circumstances presented he re, where appellant arrived in the company
of A.C. and A.R., suspected heroin dealers, matched the race and gender description of
individuals suspected of supplying heroin to A.C. and A.R., accompanied them toward the
precise location for which law enforcement ha d obtained a narcotics search warrant, and
carried a large concealed object, we conclude that the officers had a reasonable, articulable
basis to suspect appellant of criminal activity sufficient to temporarily detain him.
B. The officers did not exceed the pe rmissible scope of the investigatory
detention.

Appellant argues that, even if the officers justifiably detained him, they exceeded
the permissible scope of an in vestigatory detention by perform ing a de facto arrest when
they drew their weapons, ordered him to lie face down on the ground, and handcuffed him.
We disagree.
9
An investigatory detention justified at its inception “may become invalid if it
becomes ‘intolerable’ in its ‘intensity or scope.’” Askerooth, 681 N.W.2d at 364 (quoting
Terry, 392 U.S. at 17-18, 88 S. Ct. at 1878). There is no bright- line test to distinguish an
investigatory detention from an unlawful arrest. State v. Balenger, 667 N.W.2d 133, 139
(Minn. App. 2003), review denied (Minn. Oct. 21, 2003). “Unduly intrusive police conduct
may, but does not automatically, transform an otherwise legitimate investigative stop into
an unlawful arrest.” Id. Police officers may take re asonable precautions to protect
themselves during an investigatory detention and may order suspects to lie on the ground.
State v. Nading, 320 N.W.2d 82, 84 (Minn. 1982). Th ey may also proceed with weapons
ready when the officers have a reasonable suspicion that a person may be armed. State v.
O’Neill, 299 Minn. 60, 68, 216 N.W.2d 822, 828 (1974). In addition, “briefly handcuffing
a suspect while the police sort out the scene of an investiga tion does not per se transform
an investigatory detention into an arrest . . . .” State v. Munson , 594 N.W.2d 128, 137
(Minn. 1999). In these situations, we balance the intrusiveness and forcefulness of the stop
against the legitimate officer-safety concerns, and determine, in light of the available facts,
whether a person of reasonable caution would believe that the action taken is appropriate.
Balenger, 667 N.W.2d 133, 139.
Here, the investigatory detention involve d multiple suspects, two of whom law
enforcement had observed selling heroin. The officers reporte d officer safety as their
primary concern in securing appellant along with A.C. and A.R. In light of their training
and experience, the officers understood the pot ential volatility and officer safety risks
involved in executing a search warrant for narcotics, and the potential for weapons to be
10
present. The officers had an additional r eason to be cautious when they approached
appellant because he carried a large concealed object. Because “a substantial nexus exists
between drug dealing and violence ,” it is reasonable for police officers to believe that a
person suspected of being involved in drug transaction may be armed and dangerous.
Lemert, 843 N.W.2d at 232. Further, the execution of a warrant to search for narcotics may
elicit sudden violence. Summers, 452 U.S. at 702-03, 101 S. Ct. at 2594. Under these
circumstances, “the risk of harm . . . is minimized if officers exercise unquestioned
command of the situation.” Id. W e c o n c l u d e t h a t t h e officers did not exceed the
permissible scope of the inve stigatory detention and acted reasonably. The officers
lawfully observed, from their vantage points, the baggie of suspected heroin, justifying the
custodial arrest and full search of appellant incident to arrest. The evidence was therefore
lawfully seized.
Affirmed.
D-1

JESSON, Judge (dissenting)
I respectfully dissent. While I agree with the majority’s careful analysis of the
Michigan v. Summers rule, as well the conclusion that the officers had a reasonable,
articulable suspicion for thei r initial seizure of Johnson, reasonableness is not without
limits. The officers did not detain Johnson for a traditional “stop and frisk.” Rather, they
drew their guns, forced Johns on at gunpoint to lie prone on the ground, and began to
handcuff him—simply because Johnson was in the company of suspected drug dealers and
matched the race of men who may have been associated w ith possible drug dealing
activities. By the time Johnson was handcuffed, there were a total of five officers on the
scene. While this show of force may have been justified with regard to the two suspects—
given that the officers had a search warrant fo r their apartment—the aggressive nature of
the stop lacked justification with regard to Johnson.
The Fourth Amendment prot ected Johnson as he walked down the sidewalk in
Duluth. It protected him from unreasonable search es and seizures just as it protects each
of us from any government overreach. But the Constitution generally permits a search and
seizure where police obtain a warrant from a neutral and detached magistrate who has
determined that there is probable cause for this governmental intrusion. State v. McBride,
666 N.W.2d 351, 362 (M inn. 2003). This does not mean th at officers must allow crimes
to unfold before them, or that they should place themselves in harm’s way while they apply
for search warrants. To the contrary, if po lice have a reasonable suspicion that criminal
activity is brewing, a tempor ary seizure is justified. Terry v. Ohio, 392 U.S. 1, 30, 88 S.
Ct. 1868, 1884 (1968). Bu t to “be reasonable under th e Fourth Amendment, an
D-2

investigative stop must be limited in scope and duration to its initial justification.” State v.
Balenger, 667 N.W.2d 133, 139 (Minn. App. 2003) (citing Terry, 392 U.S. at 19-20, 88 S.
Ct. at 1879 (1968)), review denied (Minn. Oct. 21, 2003).
For Johnson, the initial justific ation for the stop was slender . As the district court
correctly noted, “[I]t does not appear from the record that the officers had any information
regarding [Johnson] specifically.” What the officers knew, according to the district court,
was that the suspected drug dealers “were operating with at least one other individual,
likely a black man from Chicago; and that [Johnson] was going to walk into the residence
with suspected drug dealers right before a search warrant was going to be executed.”
I agree that this slender reed provided justification to detain Johnson under Terry.
As the Minnesota Supreme Court noted in State v. Lemert, a car passenger will often be
involved in a common enterprise with the driver, an important fact in a totality-of-the-
circumstances analysis. 843 N.W. 2d 227, 232 (Minn. 2014). But a Terry analysis does
not end here. It also inquires whether th e actions of the police during the stop were
“reasonably related to and justified by the circ umstances that gave rise to the stop in the
first place.” State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004). Here, neither the facts
nor our precedent justify the scope and aggressive nature of this Terry stop.
What did police know about Johnson at th e time? They knew he was a black man,
matching the race of men purportedly working with the apartment tenants to distribute
drugs. They also knew that Johnson was in a vehicle with the tenants and was walking
D-3

with them toward the apartment.2 And police knew that, by the time they forced Johnson
to the ground and began placing him in handcuffs, five officers were on the scene.3 Given
the limited information the police knew about Johnson at th e time of detention (his race,
gender, and the company he kept) and the numbe r of officers at the scene, a reasonable
person would not think desce nding upon Johnson with weapon s drawn was appropriate.
See, e.g. , Balenger, 667 N.W.2d at 139 (applying an objective standard to determine
whether forceful tactics were justified, given what police knew at time of detention).
Minnesota precedent cautions restraint, not aggressive tactics, where police detain
a person without individualized suspicion. In Lemert, for example, where the court upheld
the detention of the passenger in a car driven by a suspected drug dealer, the question before
the court was the legality of a pat search for weapons. Lemert, 843 N.W.2d at 231-32; see
also State v. Varnado , 582 N.W.2d 886, 890 (Minn. 1998) (concluding that a pat search
for weapons was unreasonable where suspect was stopped for a minor traffic violation and
there was no reasonable basis to suspect she was armed or dangerous). Only where there

2 The majority points out that, according to police reports, Johnson was carrying a bag and
a blanket, but the record is inconsistent on this point. For instan ce, one officer’s report
states that Johnson was holding an item wra pped in a blanket which, after unwrapping,
revealed the bag. Another officer’s report says that Johnson was carrying a blanket and a
bag when he was detained. But importantly, no ne of the officers’ reports stated that the
bag was a factor in their decision to detain and search Johnson. They relied only on the
fact that he was a black man in the company of suspected drug dealers.
3 The record shows that two officers appr oached Johnson and the tenants with their
weapons drawn and ordered them to the ground. Three more officers quickly arrived and
began handcuffing the three individuals. In weighing whether police have exceeded the
scope of a permissible Terry stop, the Minnesota Supreme Court considers a variety of
factors, including the number of officers present. State v. Flowers, 734 N.W.2d 239, 253
(Minn. 2007) (quotation omitted).
D-4

is specific information that an individual may be armed an d dangerous have the courts
upheld aggressive tactics in making a reasonable investigatory stop. See, e.g., State v.
Bitterman, 304 Minn. 481, 484-85, 232 N.W.2d 91, 93-94 (1975) (concluding a forcible
stop of defendant at gunpoint was justified where defendant arrived with another person at
duplex that was subject of search warrant and police recognized defendant as a heavy
heroin user and officers knew it was common for heroin users to carry weapons); Balenger,
667 N.W.2d at 140 (concluding that grabbing an individual and forcing him to halt may
elevate investigative stop into an arrest in ot her cases, but in this case it was reasonable
given information that Balenger was arme d and had pointed a gun at someone); State v.
Ailport, 413 N.W.2d 140, 144 (Minn. App. 1987) (holding forceful investigatory detention
of appellant, described as rough-looking, believed to be dangerous, known to carry
weapons, and believed to be a fence involved in narcotics sales, was lawful), review denied
(Minn. Nov. 18, 1987).
The majority’s position is that Johnson was in the company of suspected drug
dealers, and because there is a link between drug deali ng and violence, then it was
reasonable for officers to link Johnson to violence. While it is true that the law recognizes
an inference connecting drug dealing and violence,4 the majority goes one step further to
build an inference upon this inference. That is, not only are suspected drug dealers assumed
to be dangerous, but someone in the compan y of drug dealers is also assumed to be
dangerous. This is an inference—and a bridge—too far. And it is an inference the supreme

4 Lemert, 843 N.W.2d at 232 (stating that there is a substantial nexus between drug dealing
and violence).
D-5

court held is improper to draw. Varnado, 582 N.W.2d at 890 (“[M]ere association with a
suspected drug dealer does not provide a reasonable basis to suspect that a person may be
armed and dangerous.”).
Caselaw from other jurisdictions is also instructive. I acknowledge the recent trend
of increased acceptance of more aggressive police tactics during Terry stops. Wayne R.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.2(d) (5th ed. 2017).
But in other jurisdictions, as well as Minnes ota, tactics traditionally associated with
arrest—such as the drawing of weapons and handcuffing individuals—are almost
universally seen in cases where there is spec ific information that the suspect presents a
danger. See, e.g. , El-Ghazzawy v. Berthiaume , 636 F.3d 452, 45 7 (8th Cir. 2011)
(determining that using handcuffs violated the Fourth Amendment where there was no
suggestion suspect was armed or dangerous and did not exhib it any erratic or suspicious
behavior); Flowers v. Fiore , 359 F.3d 24, 30 (1st Cir. 200 4) (upholding police use of
firearms during Terry stop where officers were responding to a report of armed suspects);
United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 199 3) (upholding officers pointing
guns at suspects and ordering them to the ground where guns ha d been found on the
property being searched); United States v. Tilmon , 19 F.3d 1221, 1227 (7th Cir. 1994)
(determining that multiple officers surrounding a suspected bank robb er’s car with guns
drawn was not unreasonable wh ere officers were told that the suspect was armed and
dangerous). As the Ninth Circuit concluded in Washington v. Lambert , 98 F.3d 1181,
1187, 1189 (9th Cir. 1996), under typical circumstan ces, without some reasonable
inclination that the suspect presents an actual threat or is possibly armed, drawing weapons,
D-6

using handcuffs, or a ny other aggressive police restra ints will violate the Fourth
Amendment.
A Fourth Amendment violation, in my opinion, occurred here. To be a reasonable
search and seizure, the investigative stop “must be limited in scope and duration to its initial
justification.” Balenger , 667 N.W.2d at 139. But rath er than a limited detention and
protective pat and frisk, a man was forced to lie face down on the pavement at gunpoint
and handcuffed. This exceeds the bounds of a reasonable search and seizure under Terry,
based upon the sparse information the police held about Johnson.5

5 I do not reach the issue, ar gued by Johnson, that the polic e conduct here constituted an
arrest. But see State v. Hill, 130 P.3d 1, 8, 10 (Kan. 2016) (concluding Hill was arrested,
not detained, when he was ordered from truck at gunpoint and handc uffed, and that the
police officers lacked probable cause to arrest Hill where they did not know him, he was
not named in the search warrant, not anticipated to be a resident of the house that was the
subject of the search warrant, and there wa s no reason to believe he was involved in
manufacturing methamphetamine at the residence).