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This opinion will be unpublished and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
A17-0771

State of Minnesota,
Respondent,

vs.

Song John Vue,
Appellant.

Filed April 2, 2018
Affirmed
Reyes, Judge

Ramsey County District Court
File No. 62-CR-16-6444

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

John Choi, Ramsey County At torney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Kate M. Baxter-Kauf, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Sc hellhas, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
On appeal from his convictions of being an ineligible person in possession of a
firearm and ammunition, appellant argues that: (1) the district court erred in denying his
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motion to suppress evid ence; (2) his due-process rights were violated because the state
failed to preserve crucial evidence; and (3) his trial counsel was ineffective. Appellant also
makes a number of arguments in his pro se supplemental brief. We affirm.
FACTS
Shortly before 5:00 p.m. on September 6, 2016, Officer Wilkinson and Officer
Conley, two Metro Transit Police Officers st ationed in the Metro Transit office in
downtown St. Paul, were monitoring the inte rsection of Fifth Street and Cedar Avenue
through their office window. Officer Wilkinson saw a man holding a duffel bag, later
identified as appellant Song John Vue, who appeared to be approaching, selling, and
distributing cigars to numerous people over the span of several minute s in violation of a
St. Paul City ordinance. The officers exited the Metro Transit office to speak with appellant
and called for backup from the St. Paul Police Department.
Officer Wilkinson made eye contact with a ppellant as they approached him. He
told appellant that he wanted to speak with him and instructed him to put his hands behind
his back. Appellant backed away from the officers and l ooked around, which Officer
Wilkinson perceived was an attempt to find an escape route. Officer Wilkinson grabbed
appellant’s arm and repeatedly told him to put his hands behind his back. Appellant did
not do so. The struggle continued, and Officer Wilkinson told appellant that he was under
arrest numerous times. Officer Wilkinson ev entually attempted to render appellant
unconscious through a vascular neck restrain t because he was physically resisting arrest,
but was ultimately unsuccessful.
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Officer Wilkinson saw appellant’s right ar m and hand reach toward his right hip
area. Appellant pulled out a loaded .38 revolver and Officer Wilkinson yelled, “Gun! He’s
got a gun!” Officer Wilkinson didn’t see wh at happened next, but he did see the gun on
the ground and Officer Conley stepping on it as he brought appellant to the ground and
secured him in handcuffs. The officers searched the duffel bag on appellant’s person and
found cigars, a pack of cigarettes, and six rounds of ammunition.
On September 8, 2016, the state charged appellant with one count of possession of
a firearm by an ineligible person and one count of possession of ammunition by an
ineligible person. Both are violations of Mi nn. Stat. § 624.713, subd. 1(2). That day,
appellant was arraigned and filed a motion to suppress.
After a contested omnibus hearing, the dist rict court denied appellant’s motion to
suppress. Appellant stipulated to the state’s ca se in order to obtain review of the district
court’s pretrial ruling pursuant to Minn. R. Cr im. P. 26.01, subd. 4. The district found
appellant guilty of both charges, sentenced him to 60 months imprisonment, and denied his
motion for a downward dispositional departure.
This appeal follows.
D E C I S I O N
I. The district court did not err in denying appellant’s motion to suppress.

Appellant argues that the district court erred in denying his motion to suppress
evidence because: (1) the officers did not observe any behavior that gave rise to reasonable
suspicion that justified an investigatory stop; (2) appellant did not violate the St. Paul City

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Ordinance; and (3) appellant’s presence in a high-crime-rate area did not justify his
investigatory stop. We are not persuaded.
When reviewing a pretrial order on a moti on to suppress, we review the district
court’s factual findings for clear error. State v. Milton, 821 N.W.2d 789, 798 (Minn. 2012).
We review the district court’s legal determinations, including a determination of reasonable
suspicion, de novo. State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011).
Both the United States and Minnesota Co nstitutions protect against “unreasonable
searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. A police officer
may temporarily detain a suspect without probable cause if (1) “the stop was justified at its
inception” by reasonable articulable suspicion of wrongdoing and (2) “the actions of the
police during the stop were r easonably related to and justif ied 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 v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1878- 1880 (1968)). The
reasonable-suspicion standard is not high. Diede, 795 N.W.2d at 843. An officer need
only have a reasonable, particularized suspicion that criminal activity is afoot to justify an
investigatory stop. Terry, 392 U.S. at 30, 88 S. Ct. at 1884.
Here, the officers had reasonable suspic ion of appellant engaging in criminal
activity. During the omnibus hearing, Office r Wilkinson testified that he and Officer
Conley were monitoring that particular area because it is a high-crime area that generates
the most calls to the Metro Transit Police. He also testified that he observed appellant
receive money in exchange for cigars. This , coupled with inferences that a reasonable
officer would have in that situation, includi ng a potential violation of a St. Paul City
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ordinance for the illegal sale of tobacco, is sufficient to justify approaching appellant to
briefly detain him.
Appellant argues that the officers did not have reasonable suspicion to justify an
investigatory stop, specifically because he did not commit an actual violation of a St. Paul
City ordinance. Appellant’s argument is unavailing because “an actual violation is not
necessary.” State v. Haataja, 611 N.W.2d 353, 354 (Minn. App. 2000) (quotation omitted),
review denied (Minn. July 25, 2000).
Appellant also argues that he did not have a ny small bills on his person, which is
demonstrative of the officers’ lack of reasonable suspicion. This also does not contribute
to the reasonable-suspicion analysis because reasonable suspicion does not focus on what
the officers subsequently learned after arresting appellant when they searched the contents
of his duffel bag. See State v. Martinson , 581 N.W.2d 846, 850 (Minn. 1998) (“The
principal components of a determination of reasonable suspicion will be the events which
occurred leading up to the stop or search . . . .” (quotation omitted)).
Finally, appellant asserts that his presence in a high-crime area alone does not satisfy
the reasonable-suspicion requirements. Although an individual’s presence in a high-crime
area does not by itself justify a stop, State v. Dickerson, 481 N.W.2d 840, 843 (Minn.
1992), “officers are not required to ignore the relevant ch aracteristics of a location in
determining whether the circumstances are su fficiently suspicious to warrant further
investigation.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000). Here,
appellant’s presence in a high-crime area was not the sole factor justifying the officers’
reasonable suspicion; rather, it was factor that contributed to their suspicion of wrongdoing.
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Therefore, the investigatory stop was authorized and the district court did not err in denying
appellant’s motion to suppress evidence of the firearm and ammunition.
II. The district court did not err when it determined that appellant’s due-process
rights were not violated.

Appellant argues that the district court erred in denying his motion to suppress
evidence because the state viol ated his due-process rights when it destroyed or failed to
retain exculpatory evidence, as exhibited by the jump in one of the state’s video exhibits.
1
We disagree.
“When constitutional issues involving due process are raised, this court reviews the
trial court’s legal conclusions de novo.” State v. Heath, 685 N.W.2d 48, 55 (Minn. App.
2004), review denied (Minn. Nov. 16, 2004). “A defend ant’s right to due process of law
is implicated when the State loses, destroys, or otherwise failed to preserve material
evidence.” State v. Jenkins, 782 N.W.2d 211, 235 (Minn. 2010). “To establish reversible
error, a defendant must establish that the de struction of the evidence was intentional,”
Heath, 685 N.W.2d at 55, and that the evidence mu st have had an excu lpatory value that
was apparent prior to its destruction. California v. Trombetta , 467 U.S. 479, 489, 104
S. Ct. 2528, 2534 (1984). When the exculpatory value of evidence is not apparent, as here,
a defendant is required to show the state’s bad faith. Heath, 685 N.W.2d at 55-56.
Here, the district court did not err when it determined that appellant’s due-process
rights were not violated. During the omnibus hearing, Officer Wilkinson testified that he

1 One of the state’s video exhibits did not record the portion of the encounter where Officers
Wilkinson and Conley approached appellant, the struggle ensued, and the officers arrested
him.
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had no involvement in the chain of custody for the state’s video exhibit and that he had no
reason to believe that Metro Tr ansit would alter any of its vi deo evidence. Appellant did
not testify during the omnibus hearing or offer any evidence to support its due-process
claim or refute the officer’s testimony. Appe llant’s due-process rights were not violated
because he did not show bad faith on the part of the state. See Jenkins, 782 N.W.2d at 235.
III. Appellant’s ineffective-assistance-of-counsel claim and pro se claims are not
properly before this court.

Appellant argues that he received ineffectiv e assistance of coun sel. In addition,
appellant argues in his pro se brief that: (1) his right to confront witnesses was violated;
(2) the district court abused its discretion in giving the appearance of impropriety; and
(3) his right to a fair trial was violated because the chain of custody of the video could not
be accounted for. These issues were not part of the district court’s pretrial order denying
appellant’s motion to suppress ev idence. Thus, they are not properly before this court
because, 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).
Affirmed.