State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0656

State of Minnesota,
Respondent,

vs.

Vincent Edward Britton,
Appellant.

Filed February 19, 2019
Reversed
Cleary, Chief Judge

Hennepin County District Court
File No. 27-CR-17-13676

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin Coun ty Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Roden berg, Presiding Judge; Cleary, Chief Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
On appeal from his conviction for ineligible possession of a f irearm in violation of
Minn. Stat. § 624.713, subd. 1(2) (2016), appellant Vincent Edward Britton argues that the

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district court: (1) erred by denying his request to represent himself; (2) erred by denying
his motion to suppress the firearm; and (3) abused its discreti on by excluding alternative-
perpetrator evidence. Because the police officer improperly ex panded the scope of the
investigative stop, we suppress the evidence and reverse the conviction.
FACTS
On June 2, 2017, Officer Sean Lessard, of the Minneapolis Poli ce Department, was
on patrol in a marked squad car in North Minneapolis. At the suppression hearing, Officer
Lessard testified that he observed a vehicle with a non-operabl e brake light and activated
his overhead lights to conduct a traffic stop. After initiatin g the stop, Officer Lessard
testified that he observed the driver, Britton, make a furtive movement, reaching under his
seat as if to take something out or place something under his s eat. Officer Lessard also
testified that he saw Britton make a side-to-side movement prior to stopping his vehicle.
Officer Lessard exited his squad car and approached the stoppe d vehicle. Officer
Lessard testified that as he approached the vehicle, he observe d, what he believed to be,
marijuana flakes on the rear driver-side floorboard. Officer L essard asked Britton for his
driver’s license and proof of insurance; Britton did not have p roof of insurance, but
p r o v i d e d h i s d r i v e r ’ s l i c e n s e . A f t e r n o t i c i n g t h a t t h e p a s s e n ger in the vehicle was not
wearing a seatbelt, Officer Less ard also asked the passenger fo r identification. The
passenger provided a name, but he did not have any identification.

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Officer Lessard returned to his squad car to verify Britton’s driver’s license and the
passenger’s name.1 The name that the passenger provided did not appear in any of the
police databases. Because he was working alone that day and be lieved the passenger had
given him a false name, Officer Lessard called for an additional squad car.
After a second police officer arrived, Officer Lessard asked t he passenger to step
out of the vehicle. As the passenger stepped out, Officer Lessard noticed an empty “corner
baggie” on the front passenger-sid e floorboard, an item that he testified is often used to
package narcotics. After he brought the passenger back to his squad car, Officer Lessard
separately questioned the passe nger and Britton as to how they knew each other. The
passenger told Officer Lessard that he knew Britton through his uncle; Britton told Officer
Lessard that he knew the passenger “through a girl.”
After questioning Britton about the passenger, Officer Lessard asked Britton if he
had a gun. He responded that he did not. Officer Lessard aske d Britton to step out of the
vehicle. He searched Britton and found around $1,700 in cash i n his pockets. Officer
Lessard then searched under the driver’s seat, and discovered a loaded handgun in a sock.
Officer Lessard arrested Britton and confined him in a squad car.
A few days after the incident, the state charged Britton with ineligible possession of
a firearm in violation of Minn. Stat. § 624.713, subd. 1(2) due to his prior felony
convictions. Britton challenged the admission of the firearm into evidence. Britton argued

1 At trial, Officer Lessard testif ied that he also ran a search for the vehicle’s license plate
number in the police databases, but the results of the search indicated that the vehicle was
not on file. There was no mention of this search at the suppression hearing.

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that the firearm should be excluded from admissible evidence because the officer expanded
the scope of the traffic stop without reasonable, articulable s uspicion of illegal activity.
The district court denied Britton’s motion, finding that the se arch was justified based on
Officer Lessard’s observations of Britton’s furtive movement prior to the stop, in addition
to the alleged marijuana flakes and “corner baggie” in the vehicle.
Britton stipulated that he was an ineligible person to possess a firearm, and trial
proceeded on the issue of possession. A jury found Britton guilty of the charged offense.
Following the jury verdict, Britton waived his right to a jury trial as to whether he was a
dangerous offender under Minn. Stat. § 609.1095, subd. 2 (2016) (increased sentence for
dangerous offender who commits a third violent crime). The dis trict court, pursuant to a
joint sentencing recommendation, sentenced Britton to a 90-month prison term.
D E C I S I O N
The district court clearly erre d by denying Britton’s motion t o suppress the
firearm.

Britton challenges the district court’s denial of his suppress ion motion. When
considering the denial of a pretrial suppression motion, this c ourt reviews the district
court’s factual findings for clear error and its legal conclusions de novo. State v. Molnau,
904 N.W.2d 449, 451 (Minn. 2017). A finding of fact is clearly erroneous if, after
reviewing the record, this court “reaches the firm conviction that a mistake has been made.”
State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983). A determination as to the existence of
reasonable, articulable suspicion or probable cause is reviewed de novo. State v. Munson,
594 N.W.2d 128, 135 (Minn. 1999). “The State bears the burden of establishing that the

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challenged evidence was obtained in accordance with the constitution.” State v. Edstrom,
916 N.W.2d 512, 517 (Minn. 2018), pet. for cert. filed (U.S. Nov. 19, 2018).
The United States and Minneso ta Constitutions guarantee the ri ght to be secure
against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. 1,
§ 10. But a law enforcement officer may conduct a brief invest igatory stop of a person if
the officer has a reasonable, articulable suspicion that the pe rson might be engaged in
criminal activity. State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011) (citing Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-81 (1968)).
A Terry analysis involves a dual inquiry. State v. Askerooth, 681 N.W.2d 353, 364
(Minn. 2004). First, we ask whether the stop was justified at its inception. Id. Second, we
ask whether 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 pl ace.” Id. Because Britton
concedes that the initial stop was justified, we focus on the second Terry prong.
“An initially valid stop may be come invalid if it becomes ‘int olerable’ in its
‘intensity or scope.’” Id. (quoting Terry, 392 U.S. at 17-18, 88 S. Ct. at 1878). A stop is
valid so long as each increment al intrusion is strictly tied to and justified by the
circumstances which rendered th e initiation of the stop permiss ible. State v. Smith , 814
N.W.2d 346, 350 (Minn. 2012). An intrusion not strictly tied t o the circumstances that
rendered the initiation of the st op permissible must be support ed by at least a reasonable
suspicion of additional illegal activity. Id.
The reasonable-suspicion standard is “not high.” Diede, 795 N.W.2d at 843
(quotation omitted). But it “requires at least a minimal level of objective justification.”

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State v. Timberlake , 744 N.W.2d 390, 393 (Minn. 20 08) (quotation omitted). A poli ce
officer’s “hunch, intuition, gut r eaction, [or] instinctive sen se” is insufficient to meet the
standard. State v. Baumann , 759 N.W.2d 237, 240 (Minn. App. 2009), review denied
(Minn. Mar. 31, 2009). “Reasonable suspicion must be based on specific, articulable facts
that allow the officer to be able to articulate at the omnibus hearing that he or she had a
particularized and objective basi s for suspecting the seized pe rson of criminal activity.”
Diede, 795 N.W.2d at 842-43 (quotation omitted).
Here, Officer Lessard initiated a traffic stop after observing a v e h i c l e w i t h a n
inoperable brake light. It concerns us that the district court credited Officer Lessard’s
testimony regarding an alleged “furtive movement” by Britton when that testimony is not
supported by the squad video, by the district court’s own admis sion. Police squad and
body cameras capture direct video evidence. But the “furtive movement,” as described by
Officer Lessard, does not appear on the squad video. Moreover, at the suppression hearing,
Officer Lessard did not explain why the movement did not appear on the squad video and
did not pinpoint on the squad video when the movement occurred. Nor did he suggest that
the movement occurred out of the range of the video recording.2 The district court credited
Officer Lessard’s testimony, even while acknowledging that “you can’t necessarily see that
on the squad video.” Because the officer’s testimony is not supported by the squad video,

2 In contrast to his testimony at the suppression hearing, at trial, Officer Lessard pointed to
the moment on the video where he observed Britton make the “fur tive movement” and
explained that the movement occurred off camera. Because we ar e reviewing the district
court’s suppression ruling, we view the record evidence presented to the district court and
do not consider testimony from the trial when assessing reasona ble, articulable suspicion
at a pretrial suppression hearing.

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we conclude that the district court’s finding that Britton made a “furtive movement” is
clearly erroneous.
Officer Lessard also testified th at, as he approached the stopped vehicle, he briefly
observed what he thought to be marijuana flakes on the floorboard of the rear driver-side.
But the photograph admitted at the suppression hearing shows a few unidentifiable green
flakes, and given the dearth of evidence—a momentary glance at the footwell of the empty
rear passenger area as confirmed by the squad video—it was unre asonable for the officer
to conclude that the flakes justified further intrusion.
After Officer Lessard approached the vehicle, Britton was unab le to produce proof
of insurance, a ticketing offense. See Minn. Stat. § 169.791, subd. 2 (2016). At this point,
the individualized suspicion relating to the driver is complete . Officer Lessard testified
that after confirming the driver had no proof of insurance, he observed that the passenger
was not wearing a seatbelt and asked him for identification. B ritton argues that Officer
Lessard unreasonably expanded the scope of the stop when he sou ght the passenger’s
identification to cite him for a seatbelt violation pursuant to Minn. Stat. § 169.686, subd. 1
(2016). But Britton did not raise the argument that occupants of a vehicle are only required
to wear a seatbelt when the car is in motion at the district court. Generally, appellate courts
will not consider matters not argued to and considered by the district court. Roby v. State,
547 N.W.2d 354, 357 (Minn. 1996). We therefore decline to consider this argument.
At the time that Officer Lessard returned to his squad car to verify Britton’s driver’s
license and the passenger’s name, he was aware that Britton did not have proof of insurance
and that the passenger was not wearing a seatbelt. After he wa s unable to confirm the

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passenger’s name, Officer Lessard reasonably suspected that the passenger had given him
a false name. Officer Lessard subsequently removed the passeng er from the stopped
vehicle, and as he stepped out, Officer Lessard observed an empty “corner baggie” on the
front passenger-side floorboard. Officer Lessard brought the passenger back to the squad
car and asked for additional identifying information. The pass enger provided an address,
but the address did not match Officer Lessard’s database information.
At this point in the stop, Officer Lessard testified that his concern was that the
passenger was lying about his name. Officer Lessard was permit ted to question Britton
about the passenger to investigat e his suspicions that the pass enger had provided a false
name. However, reasonable suspic ion that the passenger engaged in illegal activity by
providing a false name does not provide a basis to expand the scope of the stop to force the
driver out of the car; fully search that driver (not just pat-search him for officer safety); and
then search the vehicle. See Askerooth, 681 N.W.2d at 365 (“[T]he basis for the intrusion
must be individualized to the person toward whom the intrusion is directed.”).
The record does not support a finding that Officer Lessard dev eloped reasonable,
articulable suspicion that Br itton engaged in additional illega l activity other than the
original basis for the stop. On the day of the incident, Britt on operated a vehicle with a
non-working brake light and failed to produce proof of insuranc e for the vehicle—both
minor traffic violations that do not justify custodial arrest. See Minn. Stat. § 169.89,
subd. 1 (2016) (stating that a t raffic violation is generally a petty misdemeanor); State v.
Ortega, 770 N.W.2d 145, 150 (Minn. 2009 ) (“The crime for which probab l e c a u s e [ t o
arrest] exists must be one for which a custodial arrest is auth orized.”); Minn. R. Crim.

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P. 6.01, subd. 1(a) (directing o fficers to issue citations for misdemeanor offenses absent
certain circumstances). Given t he circumstances individualized to Britton, there was no
reasonable, articulable suspicion of any additional criminal ac tivity beyond the original
circumstances of the stop. The district court erred in denying Britton’s motion to suppress
the firearm.
Because we reverse the district court’s denial of Britton’s su ppression motion, we
need not address his arguments that the district court erred in denying his request to
represent himself or abused its discretion in excluding alternative-perpetrator evidence.
Reversed.