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This opinion will be unpublished and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
A17-0924

State of Minnesota,
Respondent,

vs.

Qumari Kenneth Spencer,
Appellant.

Filed January 22, 2018
Affirmed
Schellhas, Judge

Hennepin County District Court
File No. 27-CR-16-26185

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

Michael O. Freeman, Hennepin County Attorney, Minneapolis, Minnesota; and

Nicholas A. Hydukovich, Special Assistant County Attorney, Stillwater, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Pres iding Judge; Peterson, Judge; and Kirk,
Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
On appeal from his conviction of fel on in possession of a firearm, appellant
challenges the district court’s denial of hi s suppression motion, arguing that the police
lacked a reasonable articulable suspicion that appellant was involved in criminal activity
at the time of his seizure. We affirm.
FACTS
After police detained appellant Qumari Spen cer as he left the scene of a downtown
Minneapolis shooting, officers discovere d a loaded handgun on Spencer’s person.
Respondent State of Minnesota charged Spen cer with being a felon in possession of a
firearm. Spencer moved to suppress the handgu n, arguing that he was unlawfully seized
because the officer lacked reasonable articulab le suspicion that Spen cer was involved in
criminal activity.
Officer Efrem Hamilton testified at the suppression hearing that at approximately
1:15 a.m. on the morning in question, he re sponded to shots fired at the intersection of
Fourth Street and First Aven ue in Minneapolis. Approximat ely ten minutes later, police
heard more gunshots, this time near Hennepin Avenue and Fourth Street. Officer Hamilton
observed people running from the scene in all directions and a majority of the police
officers “running eastbound.” Officer Hamilton “went southbound through an alley that is
between the Gay 90’s and the First Precinct,” because he believed, based on his experience,
that the shooters “weren’t going to stay . . . where the shooting was at.”

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Officer Hamilton arrived at the parking lot of the Gay 90’s and observed two
individuals who “looked nervous.” The individuals kept running and stopping as if unsure
where to go. One of the indivi duals, later identified as Spence r, “had his hand on his left
hip and he was manipulating something that was on his . . . left hip side.” Officer Hamilton
testified that he heard Spencer say “something to the effect of, ‘I need to get out of here
and I need to get rid of this.’”
Officer Hamilton testified that he be lieved that Spencer’s words and actions
indicated that he had a gun. Officer Hamilt on therefore removed his service weapon and
began walking toward the two individuals. But Spencer “turned around” and saw Officer
Hamilton and began running westbound. Spencer continued to run after Officer Hamilton
commanded him to “drop down.” While chas ing Spencer, Officer Hamilton radioed for
assistance. Officer Alexander Brown obse rved the chase and tackled Spencer. A
subsequent search of Spencer’s person revealed a 9mm handgun.
In denying Spencer’s suppre ssion motion, the district court found that Officer
Hamilton “observed that [Spencer] appeared nervous and was running and stopping as if
he was unsure as to where to go.” The distri ct court also found that “Officer Hamilton
noticed that [Spencer] had his hand on his left hip and was manipulating something,” and
that Officer Hamilton “heard [Spencer] say something to the effect of, ‘I need to get out of
here and I need to get rid of this.’” Moreover, the district court found that Spencer “began
running” after seeing Officer Hamilton, who was in full uniform, and “failed to stop even
after being given numerous verbal commands. ” The court concluded that looking at the

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“totality of the circumstances, . . . Officer Hamilton had a particularized and objective basis
for at least suspecting [Spencer] had been involved in the shots fired incident.”
Spencer waived his righ t to a jury trial and other trial rights and stipulated to the
prosecution’s case under Minn. R. Crim. P. 26.01, subd. 4. The district court found Spencer
guilty of the charged offense a nd sentenced him to 60 months in prison, the legislatively
mandated sentence. This appeal follows.
D E C I S I O N
The United States and Minnesota Constitutions guarantee “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV; Minn. Const. art. 1, § 10. A search or seizure that is
conducted without a warrant is presumptively unreasonable. State v. Lugo , 887 N.W.2d
476, 486 (Minn. 2016). One exception to the warrant requirement that permits police to
“conduct a brief, investigatory stop” occurs when police have “a reasonable, articulable
suspicion that criminal activity is afoot.” Id. (quoting State v. Timberlake, 744 N.W.2d 390,
393 (Minn. 2008)).
“In reviewing a district court’s determ inations of the legality of a limited
investigatory stop, we review questions of reasonable suspicion de novo.” State v. Morse,
878 N.W.2d 499, 502 (Minn. 2016) (quotation omitted). “R easonable suspicion must be
based on specific, articulable facts that allow the officer to be able to articulate . . . that he
or she had a particularized and objective basis for suspecting the seized person of criminal
activity.” Id. (alteration in original) (quotations omitted). “The reasonable-suspicion
standard is not high.” Id. (quotations omitted). “A trained police officer is entitled to draw

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inferences on the basis of all of the circumstances . . . inferences and deductions that might
well elude an untrained person.” Id. (alteration in original) (quotations omitted). When
reviewing the district court’s determination of the legality of a limited investigatory stop,
we assess the question of reasonable suspicion based on the “totality of the circumstances.”
United States v. Cortez , 449 U.S. 411, 417–18, 101 S. Ct. 690, 695 (1981). “When
reviewing a pretrial order on a motion to su ppress evidence, [appellate courts] review the
district court’s factual findings under a cl early erroneous standard and its legal
determinations de novo.” State v. deLottinville, 890 N.W.2d 116, 119 (Minn. 2017).
Spencer argues that the district cour t erred by denying his suppression motion
because the police lacked a reasonable articulabl e suspicion that he was involved in
criminal activity at the time of his seizure. We disagree. The supreme court has articulated
the following nonexclusive factors, known as the Appelgate factors, when determining
whether an officer has reasonable suspicion supporting a stop near the scene of a recently
committed crime:
(1) the particularity of the description, if any, of the offender;
(2) the size or extent of the area in which the offender may be
found as indicated by such fact s as the elapsed time since the
crime occurred; (3) the number of persons about in the area;
(4) the known or possible direction of a person’s flight, if any;
(5) the observed activity of the person stopped; (6) knowledge
or suspicion that the person st opped has been involved in
criminality of the type presently under investigation.

Wold v. State, 430 N.W.2d 171, 174 (Minn. 1988); see also Appelgate v. Comm’r of Pub.
Safety, 402 N.W.2d 106, 108 (Minn. 1987) (d iscussing factors isolated by Professor

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LaFave, 3 Wayne R. LaFave, Search and Seizure: A Trea tise on the Fourth Amendment
§ 9.3(d), at 461 (2d ed. 1987)).
The state concedes that certain Appelgate factors weigh against it; for example,
Officer Hamilton did not have a description of the shooter and had no knowledge or
suspicion that Spencer was involved in criminal activity. Moreover, “a substantial number
of civilians in the part of downtown Minne apolis where the shooting occurred” were
present and the size of the area in which the offender might have be en found was rather
large. But these factors are not exclusive. Th e police may take into account the degree of
potential danger being investigated. United States v. Ramos, 629 F.3d 60, 66–67 (1st Cir.
2010). And the Appelgate factors are not meant to supplant an analysis of the “totality of
the circumstances” surrounding a stop. See Appelgate, 402 N.W.2d at 108–09 (discussing
LaFave’s factors, but reaching conclusion about legality of stop based on “tot ality of the
circumstances”).
Here, taking into account all of the relevant factors, the totality of the circumstances
supports a determination that Officer Hamilt on had the requisite re asonable, articulable
suspicion to conduct an investigatory stop. The circumstances involved multiple shots from
a firearm in an urban area near midnight in the vicinity of numerous pedestrians who were
in the zone of danger. The gravity of the da nger to the public supports the investigatory
stop. Moreover, Spencer’s suspicious conduct of walking and running nervously through
the parking lot while manipula ting something on his hip and muttering about needing to
get out of the vicinity and wanting to get rid of something weighs heavily in support of the
state.

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Spencer argues that his nervous behavior “cannot be relied upon to justify the
seizure” because it was “understandable” in light of the recent gunshots and
indistinguishable from other people in the area. He also contends that the district court
clearly erred by relying on Officer’s Hami lton’s testimony that he overheard Spencer
making statements about wanting to get rid of something. Bu t the law is well settled that
we defer to the district court’s assessment of witness credibility at pretrial suppression
hearings. See State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (stating that “at a pretrial
suppression hearing the [district] court acts as finder of facts, deciding for purposes of
admissibility which evidence to believe and whether the state has met its burden of proof”
(quotation omitted)). Officer Hamilton testified about what he heard Spencer say without
contradiction in the record. The district court was free to believe Officer Hamilton’s
testimony, and we defer to that credibility de termination. Moreover, although Spencer is
correct that most people would likely leave the scene of a shooting in a nervous manner,
this conduct, when combin ed with Spencer’s statemen ts, and his manipulation of
something on his left hip side, demonstrated suspicious conduct.
Spencer further argues that because the seizure occurred before he began to flee, the
district court “erred by relying on [his] post-seizure flight from Hamilton and [his] conduct
while fleeing Hamilton to justify the prior seizur e.” Indeed, Spencer is correct that if the
seizure occurred before he fled, 1 his flight cannot be used to support Officer Hamilton’s

1 We note that it is unclear if the seizure actually occurred before Spencer fled. Although
Officer Hamilton testified that he “believe[d] that he had his service weapon drawn when
Spencer saw him and started to flee,” video from Officer Hamilton’s body camera reveals
that the officer said nothing to Spencer until after he started to run away. Moreover, video

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suspicion of criminal activity. See State v. Diede, 795 N.W.2d 836, 843−44 (Minn. 2011)
(noting that only facts that existed at time of seizure are appropriate for consideration when
determining whether officer had objective basis for seizing defendant). But within less than
a minute of the shooting, Officer Hamilt on observed Spencer nervously running and
walking away from the scene, “manipulating something that was on his . . . left hip side,”
which Officer Hamilton believed was a gun. Spencer’s flight from Officer Hamilton was
not necessary to support a determination that Officer Hamilton seized Spencer with the
requisite reasonable, articulable suspicion.
We conclude that Officer Hamilton’s ar ticulation of Spencer’s conduct, when
viewed together with the recen t shooting, provided the officer with an objective basis to
seize Spencer. Accordingly, the district court did not err by denying Spencer’s suppression
motion.
Affirmed.

from Officer Hamilton’s body camera, as we ll as surveillance video of the Gay 90’s
parking lot, is inconclusive because it fails to definitively show where the officer was
pointing his service weapon at the time Spencer saw the officer, or whether the officer had
unholstered his service weapon. And video from Officer Hamilton’s body camera shows
that as soon as Spencer noticed the officer, he began to flee. Therefore, despite the state’s
concession that the seizure occurred before Spencer fled, the seizure arguably occurred
after Spencer started to flee because Spencer began to flee before Officer Hamilton ordered
Spencer to stop, and because the record fails to indicate where the officer was pointing his
service weapon when Spencer noticed him. But we need not decide when the seizure
occurred because the issue was neither raised nor argued by the parties.