State of Minnesota, Appellant,

This opinion will be unpublished and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
A17-1753

State of Minnesota,
Appellant,

vs.

Michael Alexander Johnson,
Respondent.

Filed May 7, 2018
Reversed and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-CR-17-22239

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

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for appellant)

Mary F. Moriarty, Fourth District Public Defender, Paul J. Maravigli, Assistant Public
Defender, Minneapolis, Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Larkin, Judge; and Bratvold,
Judge.
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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
In this pretrial appeal, the state challenges the district court’s order suppressing a
gun recovered during a warrantless investigative seizure and dismissing the resulting
charge of unlawf ul possession of a firearm. The district court ruled that the arresting
officers did not articulate reasonable suspicion of criminal activity justifying the underlying
seizure and that the seizure was therefore unlawful. Because respondent’s immediate,
unprovoked, headlong flight from the officers supported a reasonable inference that
respondent was deliberately trying to evade the police and the officers reasonably
suspected that respondent was engaged in criminal activity based on this evasive conduct ,
we hold that the seizure was lawful. We therefore reverse and remand.
FACTS
Appellant State of Minnesota charged respondent Michael Alexander Johnson with
unlawful possession of a firearm. Respondent moved to suppress the firearm, arguing that
it was obtained as the result of an unlawful seizure. The district court held a hearing on
respondent’s motion and found the relevant facts to be as follows.
On September 4, 2017, Minneapolis police officers Jacob Spies and Daniel Ledman
were on patrol in a mar ked police vehicle around 5:45 a.m. in north Minneapolis. They
drove down an alley and observed respondent walking down the alley ahead of them,
wearing a dark sweatshirt or jacket. Within seconds of the officers observing respondent,
respondent looked o ver his shoulder toward the officers and immediately ran through a
backyard off the alley. Officer Spies got out of the vehicle and pursued respondent on foot.
3
The foot chase spanned two blocks. When Officer Spies caught up to respondent, he was
sitting on the front steps of a house. Officer Spies ordered respondent to the ground, held
him at gunpoint, and handcuffed him. The officers traced the path of the chase and
discovered a cell phone, a sweatshirt, a hat, a glove, and a firearm.
Officer Spies t estified that after the squad car turned down the alley behind
respondent, respondent looked back, saw the squad car, and took off running. Officer Spies
testified that the neighborhood where he apprehended respondent was a “high crime area
known for . . . robberies, burglaries, car break -ins, shootings.” Officer Spies further
testified that he considered the time of day significant in interpreting respondent’s actions
because officers do not normally encounter many people in the alley or walking around a t
that time of day. Officer Spies testified that during the ensuing foot chase, he saw
respondent “flailing his arms and attempting to shed his jacket.”
Officer Ledman testified that he had responded to “dozens and dozens” of calls from
the neighborhood where respondent was apprehended. He also testified that the time of
day factored into his decision to pursue respondent “because it’s dark out, things happen
with the cover of darkness.” He testified that “[i]t’s in an alley” and “things happen in
alleys in that area . . . . It could be burglaries. It could be auto thefts. It could be, you
know, who knows what.”
The state conceded that respondent was seized when the foot chase began and
argued that the seizure was justified by the following circumsta nces: respondent was
walking through an alley in a high -crime neighborhood at 5:45 a.m. and fled through
residential yards without provocation when he observed a marked police vehicle.
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The district court rejected the state’s proffered grounds for the seizure. The district
court reasoned that it was “unclear why the time, 5:45 a.m., played into the officers’
decision on how to respond in the situation,” because “crimes can be committed at any
time of night or day” and there was “no evidence that 5:45 a.m. is a common time for
crimes to be committed or that the officers had a heightened response because of the fact
that it was 5:45 a.m.” The district court further reasoned that there was no evidence that
“the blocks in question . . . needed particular or e xtra patrol for any specified reason” and
that there was “no specificity to this particular alley in question.” The district court rejected
the state’s reliance on cases in which flight from police officers justified seizures,
explaining that “[w]hile fle eing contributed to a finding of [a lawful seizure] in case law
cited by [the parties], the [grounds for seizure] in those cases [were] born out of additional
facts that are not present here.”
The district court further explained:
[N]one of these things occurred here and thus differentiate this
case from case law cited by both parties. It is undisputed that
[respondent] looked over his shoulder toward the squad car and
then ran away. Flight is not necessarily indicative of criminal
behavior though the amb iguity surrounding the reason for
[respondent’s] flight does not preclude the officers from
chasing and stopping [him]. In this case, the chase is made
different because Officer Spies had his gun drawn the entire
time. Officers were not responding to a 911 call or complaint,
they did not see [respondent] do anything criminal, they did not
see him in an area specifically known for illegal activity, and
they did not see him attempt to conceal anything illegal.

The district court concluded,
For these reasons, the Court finds that the officers had
no reasonable articulable suspicion to seize [ respondent].
5
There were no specifics articulated by the officers as to why
they chased [respondent] other than it was 5:45 a.m., in a high
crime neighborhood, and [respondent] looked in their direction
then ran.

The district court then dismissed the case based on its suppression of the firearm. The state
appeals.
D E C I S I O N
When the state appeals a pretrial suppression order, it “must ‘clearly an d
unequivocally’ show both that the [district] court’s order will have a ‘critical impact’ on
the state’s ability to prosecute the defendant successfully and that the order constituted
error.” State v. Scott , 584 N.W.2d 412, 416 (Minn. 1998) (quoting State v. Zanter , 535
N.W.2d 624, 630 (Minn. 1995)). “The critical impact requirement has evolved into a
threshold issue, so that in the absence of critical impact [appellate courts] will not review
a pretrial order.” State v. Underdahl , 767 N.W.2d 677, 681 (Minn. 2009) (quotation
omitted).
Critical impact is established if “the lack of the suppressed evidence significantly
reduces the likelihood of a successful prosecution.” State v. Kim, 398 N.W.2d 544, 551
(Minn. 1987). The dismissal of a criminal complaint following the suppression of evidence
satisfies the critical -impact requirement. State v. Varnado , 582 N.W.2d 886, 889 & n.1
(Minn. 1998). Thus, the critical -impact requirement is satisfied here, and we review the
merits of the pretrial suppression order.
“When reviewing a pretrial order on a motion to suppress evidence, [appellate
courts] may independently review the facts and determine whether, as a matter of law, the
6
district court erred in suppressing or not suppressing the evidence.” State v. Askerooth ,
681 N.W.2d 353, 359 (Minn. 2004). We review a district court’s determination of
reasonable suspicion de novo and accept the district court’s factual findings unless they are
clearly erroneous. State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012).
Basis for the Seizure
The United States and Minnesota Constitutions prohibit unreasonable search es and
seizures by the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. “The Fourth
Amendment applies to seizures of the person, including brief investigatory stops . . . . An
investigatory stop must be justified by some objective manifestation that the person
stopped is, or is about to be, engaged in criminal act ivity.” United States v. Cortez , 449
U.S. 411, 417, 101 S. Ct. 690, 694 -95 (1981) (citations omitted). “The touchstone of the
Fourth Amendment is reasonableness.” State v. Johnson, 813 N.W.2d 1, 5 (Minn. 2012)
(quoting United States v. Knights , 534 U.S. 112, 118, 122 S. Ct. 587, 591 (2001)). In
justifying a particular warrantless seizure, a “police officer must be able to point to specific
and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Terry v. Ohio , 392 U.S. 1, 21, 88 S. Ct. 1868, 1880
(1968)).
Whether an officer has reasonable suspicion to conduct an investigative seizure
depends on the totality of the circumstances and a showing that the seizure was not “the
product of mere whim, capr ice, or idle curiosity.” In re Welfare of M.D.R. , 693 N.W.2d
444, 448 (Minn. App. 2005) (quotation omitted), review denied (Minn. June 28, 2005).
The factual basis required to justify an investigative seizure is minimal. Magnuson v.
7
Comm’r of Pub. Safety, 703 N.W.2d 557, 560 (Minn. App. 2005). The police may seize a
person so long as the facts “support at least one inference of the possibility of criminal
activity.” State v. Schrupp , 625 N.W.2d 844, 8 47-48 (Minn. App. 2001), review denied
(Minn. July 24, 2001).
There is no fixed or definitive test for the
reasonableness of an investigatory [seizure]. Rather, we must
balance the need for the [seizure] against the invasion [it]
entails. There can be no rational disagreement that an
investigatory [seizure] is necessary when the totality of the
circumstances points to some observable unusual conduct that
leads the officer reasonably to conclude in light of his
experience that criminal activity may be afoot. But the officer
must articulate specific facts that, taken together with rational
inferences from those facts, reasonably justify the [seizure].
The officer need not be absolutely certain of the possibility of
criminal activity, but he cannot satisfy the test of
reasonableness by relying on an inchoate and unparticularized
suspicion or “hunch.”

Id. at 846-47 (quotations and citations omitted).
Evasive behavior, such as unprovoked flight upon noticing the presence of police,
is a pertinent factor in a reasonable-suspicion determination. Illinois v. Wardlow, 528 U.S.
119, 124-25, 120 S. Ct. 673, 676 (2000). “Headlong flight—wherever it occurs —is the
consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly
suggestive of such.” Id. at 124, 120 S. Ct. at 676.
In arguing that respondent’s seizure was lawful, the state relies on respondent’s
immediate flight upon observing the officers, as well as the officers’ testimony that
respondent was seized in an alley in a high -crime area, in the early morning hours , while
wearing dark clothing. The time, the location, and the defendant’s clothing have been
8
recognized as relevant in determining whether the totality of the circumstances justified an
investigative seizure. See State v. Lande , 350 N.W.2d 355, 357 -58 ( Minn. 1984)
(“Although the police apparently did not need articulable suspicion to approach defendant,
they arguably had it, given the totality of the circumstances (including the time, the place,
defendant’s manner of dress, and his suspiciou s be havior).” (citation omitted)).
Nevertheless, we share the district court’s reluctance to rule that walking down an alley in
north Minneapolis at 5:45 a.m. while wearing dark clothing creates reasonable suspicion
of criminal activity. In our view, the issue is whe ther respondent’s evasive conduct alone
justified the seizure. We therefore focus on that issue.
In State v. Johnson, this court concluded that “[a]n evasive act alone, in the absence
of other indicia of criminal activity or other extreme behavior, is no t a sufficient basis for
conducting a Terry stop.” 439 N.W.2d 400, 400 (Minn. App. 1989) , rev’d, 444 N.W.2d
824 (Minn. 1989). On further review, t he Minnesota S upreme Court rejected that
conclusion, reasoning that “the United States Supreme Court’s decisions do not support
the court of appeals’ new rule” and that “[t]he Court has also suggested quite strongly that
it would not agree with the court of appeals’ new rule.” State v. Johnson, 444 N.W.2d 824,
825-26 (Minn. 1989). The supreme court quoted Professor LaFave’s analysis of the issue.
Id. at 826. Although the quoted passage is long, we repeat it here because it is instructive.
Another rather common situation is that in which police
suspicions are based in whole or in part upon the reactions of
the suspect in response to the appeara nce of police in the
vicinity. Police are trained to be suspicious of such reactions,
and stops are not inf requently made because of them. As one
empirical study concluded: A person who manifests concern
for the presence of the police, who repeatedly glances at the
9
officer, who changes his direction in an apparent attempt to
avoid confronting the officer, or who flees at the sight of an
officer will commonly be detained and questioned. It is not to
be doubted that such reactions may be taken into account by
the police and that together with other suspicious
circumstances these reactions may well justify a stopping for
investigation. Courts have so held when person s already
suspected to some degree kept a watch upon the police, turned
to conceal something from the police, tried to conceal
themselves from the police, or drove away, ran away or walked
off at a fast pace upon the approach of the police.

More difficult, however, is the question of whether such
actions as these may, in and of themselves, justify a stopping
for investigation. Perhaps at least some of them do, for, as the
Supreme Court acknowledged in Peters v. New York, [392 U.S.
40, 88 S. Ct. 1912, 20 L.Ed.2d 917 (1968)], “deliberately
furtive actions and flight at the approach of strangers or law
officers are strong indicia of mens rea. ” However, some
actions which may fairly be said to be in response to an
awareness that police are in th e vicinity are not of that type;
persons on the street watch police and engage in similar
activities out of interest in what the police are doing and out of
a desire to avoid some minor misstep, such as a minor traffic
violation, which would involve them unnecessarily with the
police. Thus, it has properly been held that the hesitancy of a
car to pass a police cruiser and a glance at the officer [sic] by a
passenger, a startled look at the sight of a police officer,
appearing nervous when a police car pass ed, looking away
from police activity in the vicinity, pointing toward police, or
quickening one’s pace upon seeing the police are not, standing
alone, sufficient ba ses for an investigative stop. By contrast,
such stops have been upheld when the individua l made
repeated efforts to avoid police contact, when he engaged in a
combination of several different possibly furtive actions, and
when the person engaged in a rather extreme means of
avoidance such as high-speed flight.

Id. (second emphasis added) (alt eration in original) (quoting 3 W. LaFave, Search and
Seizure § 9.3(c) at 448-51 (2d ed. 1987) (citations omitted)) (quotation marks omitted).
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Our supreme court applied LaFave’s analysis in determining whether evasive
driving conduct in Johnson justified an investigative seizure. Id. at 827. The supreme
court reasoned:
As we see it, the issue is partly a semantic question
depending on what one means when one says that the
defendant engaged in evasive conduct. On the one hand, if a
driver merely appears startled at the sight of a police officer
passing him and then slows down a bit and if a reasonable
police officer would not infer any wrongdoing from the
driver’s response, then the officer does not have a particular
and objective basis for su specting the driver of criminal
activity and may not stop the driver. On the other hand, if the
driver’s conduct is such that the officer reasonably infers that
the driver is deliberately trying to evade the officer and if, as a
result, a reasonable polic e officer would suspect the driver of
criminal activity, then the officer may stop the driver.

Id. at 826-27 (emphasis added). The supreme court concluded:
In this case, the trooper did not base his decision to stop
on mere whim, caprice, or idle curiosity. Moreover, the trooper
did not base his decision to stop solely on the fact that the
defendant made a quick turn off the highway seconds after he
looked the trooper in the eye. The trooper also observed the
defendant turn off the secondary street into a driveway or side
street and then resume his driving on the highway within a
minute after turning off the highway. While defendant’s
behavior may have been consistent with innocent behavior, it
also reasonably caused the officer to suspect that defend ant
was deliberately trying to evade him. In short, the record we
have on appeal in this case indicates that the trooper reasonably
inferred that defendant was deliberately trying to evade him
and that, as a result, the trooper reasonably suspected petitioner
of wrongdoing.

Id. at 827 (quotation and citation omitted).
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In sum, Johnson establishes that evasive conduct alone may give rise to reasonable
suspicion of criminal activity justifying an investigative seizure. See, e.g., State v. Petrick, 527 N.W. 2d 87 , 87 -89 (Minn. 1995) (relying on Johnson and concluding that officer
articulated sufficient grounds for traffic stop based solely on evasive driving conduct).
Notwithstanding Johnson’s holding, respondent argues that “courts have
consistently regarded evasive conduct as justifying a seizure only with additional evidence
of criminal activity.” Although there are cases in which seizures were determined to be
lawful based on evasive conduct combined with other evidence of criminal activity , see,
e.g., Wardlow, 528 U.S. at 124-25, 120 S. Ct. at 676 (assessing flight in the context of
police convergence on an area known for heavy narcotics trafficking); State v. Houston ,
654 N.W.2d 727, 732 -34 (Minn. App. 2003) (assessing flight in the context of possible
gunfire), review denied (Minn. Mar. 26, 2003), Johnson makes it clear that additional
suspicion of criminal activity is not always necessary: reasonable suspicion may be b ased
on evasive conduct alone if the conduct gives rise to reasonable suspicion of c riminal
activity. 444 N.W.2d at 827.
Respondent also argues that “ Johnson was a traffic stop case, which is not in the
same category of investigative stops as those in [pedestrian stop cases].” He suggests that
the standard for stopping a motorist is low er than the standard for stopping a pedestrian.
Cf. State v. Davis , ___ N.W.2d ___, ___, 2018 WL 1569783 , at *5 (Minn. App. Apr. 2,
2018) (noting absence of caselaw as to “whether the Johnson holding applies to pedestrian
stops” but “offer[ing] no opinion” on the issue). We disagree. The standard for a
warrantless investigative seizure requires “only that the officer have a ‘particular and
12
objective basis for suspecting the particular person stopped of criminal activity.’” Johnson,
444 N.W. 2d at 825 (quoting Cortez, 449 U.S. at 417 -18, 101 S. Ct. at 695). Johnson
clarifies that some evasive conduct alone may reasonably cause the police to suspect
criminal activity. Although Johnson involved a traffic stop, nothing in the language of the
opinion suggests that the supreme court was adopting a new standard that would apply only
to traffic stops. The supreme court explained:
We simply reaffirm the standard which we have followed in
numerous cases: that a police officer may make a brief limited
investigative stop if the officer has a particular and objective
basis for suspecting the person stopped of criminal activity.
Because we conclude that the rule adopted by the court of
appeals makes an unjustified refinement of this standard . . .
we reverse the decisi on of the court of appeals and reinstate
defendant’s judgment of conviction.

Id. at 827.
We do not discern a principled basis to limit the rule from Johnson to traffic stops
and thereby create different standards for assessing the constitutional validity of seizures
of pedestrians and motorists. As the Minnesota Supreme Court stated in Johnson, “in all
stop cases, the decision for the [district] court at the suppression hearing depends on
whether the officer is able to articulate at the hearing a ‘partic ular and objective basis for
suspecting the particular person stopped of criminal activity.’” Id. (emphasis added)
(quoting Cortez, 449 U.S. at 417 -18, 101 S. Ct. at 695). We therefore hold that the rule
from Johnson applies to both traffic and pedestrian stops.
We now apply Johnson to the facts of this case. H ere, “[w]ithin seconds” of
observing respondent, the police saw him look “over his shoulder toward the squad car and
13
. . . run though a back yard off the alley. ” On these facts, the officers reasonably inferred
that respondent was deliberately trying to evade them.
We next consider whether respondent’s deliberately evasive conduct caused the
officers to reasonably suspect respondent of criminal activity. Immediately after observing
the police behind him in a marked vehicle, respondent took off running, away from the
police and through a residential yard. Although respondent’s presence in a north
Minneapolis alley at 5:45 a.m. while wearing dark clothing did not give rise to reasonable
suspicion of criminal activity, his immediate, unprovoked, headlong flight from the police
through a residential yard supported a reasonable inference that he was involved in criminal
activity. See Wardlow, 528 U.S. at 129 -30, 120 S. Ct. at 679 (Stevens, J., con curring in
part, dissenting in part) (explaining that the inference that can reasonably be drawn about
the motivation for a person’s flight will depend on a number of different circumstances,
including the direction and speed of the flight). Because respondent’s flight caused the
officers to reasonably suspect him of criminal activity, respondent’s seizure was
constitutional.
In Johnson, the supreme court stated that its decision “should not be interpreted in
any way as making it easier for police to justify stopping motor vehicles.” 444 N.W.2d at
827. Similarly, this court does not intend its application of the Johnson rule to a pedestrian
stop to in any way make it easier for the police to justify stopping pedestrians. However,
“[t]he touchstone of the Fourth Amendment is reasonableness.” Johnson, 813 N.W.2d at
5 (quotation omitted). And in rare cases such as this one involving immediate, unprovoked,
14
headlong flight from the police, deliberately evasive conduct alone can give rise to
reasonable suspicion of criminal activity justifying a warrantless investigative seizure.
Use of Service Weapon
Respondent’s brief suggests that his seizure was unlawful because Officer Spies had
his gun drawn during the foot chase. He argues, “[T] he police chasing down someone at
gunpoint on the street, who has run away for no particular reason, should be discouraged,
not earn endorsement from prosecutors and courts.” He further argues that the police
should have followed respondent, “without guns drawn, [found] him, and simply ask[ed],
‘Why are you running?’”
It is unclear why Officer Spies’s use of his service weapon during the chase is
relevant to the determination of whether there was a lawful basis to initiate the chase .
Although Officer Spi es’s use of his service weapon is relevant to a determination of
whether a seizure occurred, that issue was not contested in district court or on appeal. See
In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (stating that “the display of a
weapon by an officer” is among the circumstances that may indicate a seizure has occurred
(quotation omitted)).
Officer Spies’s use of his service weapon may also be relevant to a determination
of whether the seizure was reasonably executed. “A Terry analysis involves a dual
inquiry.” Askerooth, 681 N.W.2d at 364. “ First, [an appellate court] ask[s] whether the
stop was justified at its inception. Second, [it] ask[s] 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.” Id. (citations omitted). But in this case, the issue raised and
15
determined in district court was whether the seizure was justified at its inception, and not
whether the use of a firearm during the seizure rendered its execution unreasonable.
Indeed, in district court, respondent did not argue that the seizure was unreasonably
executed because Officer Spies had his gun drawn during the chase.
Nonetheless, at oral argument to this court, respondent encouraged this court to hold
that the seizure was unreasonable based on the manner of its execution. We decline to
consider the manner of execution because we are not satisfied that the factual record is
adequately developed or that the issue is adequately briefed. See State v. Grunig , 660
N.W.2d 134, 137 (Minn. 2003) (“ A respondent can raise alternative arguments on appeal
in defense of the underlying decision when there are sufficient facts in the record for the
appellate court to consider the alternative theories, there is legal support for the arguments,
and the alternative grounds would not expand the relief previously granted.”).
We limit our review to the district court’s ruling that “the officers had no reasonable
articulable suspicion to seize [respondent],” because “[t]here were no specifics articulated
by the officers as to why they chase d [respondent] other than it was 5:45 a.m., in a high
crime neighborhood, and [respondent] looked in their direction then ran.” Based on the
reasoning of Johnson, we conclude that respondent’s deliberately evasive conduct alone
provided reasonable suspicion of criminal activity that justified his warrantless seizure.
Conclusion
Because the Johnson holding that evasive conduct alone may justify an investigative
seizure is not limited to traffic stops, we apply it here. Under that holding, respondent’s
deliberately evasive conduct gave rise to reasonable suspicion of criminal activity
16
justifying his seizure by the police . We therefore reverse the d istrict court’s order
suppressing the gun and dismissing the charge against respondent, and we remand for
further proceedings.
Reversed and remanded.