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This opinion will be unpublished and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
A18-1635

State of Minnesota,
Respondent,

vs.

Willie Alonso Smith,
Appellant.

Filed June 17, 2019
Affirmed
Larkin, Judge

Ramsey County District Court
File No. 62-CR-16-3176

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Bratvold, Judge; and Slieter,
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
Appellant challenges his conviction of fifth -degree possession of a controlled
substance, arguing that the district court erred by denying his motion to suppress. We
affirm.
FACTS
Respondent State of Minnesota charged appellant Willie Alonso Smith with fifth -
degree possession of a controlled substance after the police found marijuana in a bag , on
the ground, near a vehicle that Smith had been driving . Smith moved the district court to
suppress the marijuana evidence, and the district court held a contested evidentiary hearing
on Smith’s motion. Smith limited the contested issues to “whether law enforcement had
probable cause to stop and seize [him] and his vehicle [,] and whether the subsequen t
warrantless search of [ his person] and the vehicle was in violation of his constitutional
rights.”
At the hearing, the state presented the testimony of former St. Paul Police Officer
Anthony Spencer 1 and St. Paul Police Officer Matthew Bravo. At aroun d 6:00 pm on
February 23, 2016, Officer Spencer was on patrol and observed a vehicle that he visually
estimated to be traveling in excess of 40 miles per hour in a 30-mile-per-hour zone. Officer
Spencer testified that as he pursued the vehicle, he believed that the vehicle’s driver could
see his marked squad car in the vehicle’s rearview mirror. The vehicle quickly turned into

1 Even though Spencer was no longer a police officer at the time of the evidentiary hearing,
we refer to him as Officer Spencer in this opinion.

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a driveway that led to a residence. Officer Spencer testified that at that point, he thought
that the driver might be attempting to evade him, that the driver might be in the process of
committing a crime, or the vehicle might be stolen. Officer Spencer passed the vehicle,
turned around, and continued to observe the vehicle. He saw t he driver exit the vehicle
and approach the resi dence, but the driver did not make contact with anyone at the
residence. The driver returned to the vehicle and entered it through the driver’s door.
Officer Spencer continued to observe the vehicle and realized that, although he had
not seen any of the vehicle’s doors open, he could no longer see anyone in the driver’s seat.
Officer Spencer testified that he could only “see ankles and feet on the passenger ’s side”
and that he considered this behavior suspicious when combined with the high rate of speed
at which the vehicle had been traveling, the quick turn into the driveway, the lack of contact
with the homeowner at the address, and the driver’s exit of the vehicle on the passenger
side, where Officer Spencer could not see him.
Officer Spencer drove toward the vehicle and called the driver, later identified as
Smith, down into the street. As Smith approached, Officer Spencer observed that his fist
was closed, concealing an unkno wn object. Officer Spencer testified that Smith was
“belligerent and uncooperative,” refused to identif y himself, and refused to answer when
asked why he had exited the vehicle through the passenger side. Smith denied that he had
been in the vehicle that Officer Spencer had seen him driving. Based on Smith’s attitude
and his denial, Officer Spencer thought that Smith might h ave been engag ed in illegal
activity.

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Officer Spencer asked Smith to open his fist , but Smith refused. Officer Spencer
pried open Smith’s hand and saw that he was holding a key. Officer Spencer took the key,
handcuffed Smith, placed Smith in his squad car, and explained that he was detaining Smith
while he conducted an investigation. Officer Spencer determined that the key fit the door
of the vehicle that he had seen Smith driving.
Officer Spencer testified that he called for backup based on Smith’s refusal to
cooperate. Officers Matthew Bravo and Pil Jeon of the St. Paul Police Department arrived
on the scene. Officer Bravo approached Smith’s vehicle and found a black plastic bag on
the ground near the rear tire , on the passenger side . Officer Bravo opened the bag and
observed what appeared to be marijuana. The officers subsequently searched Smith’s
vehicle, but they did not find any contraband.
The district court denied Smith’s m otion to suppress, and Smith stipulated to the
prosecution’s case to obtain review of the court’s pretrial ruling under Minn. R. Crim. P.
26.01, subd. 4. The district court found Smith guilty, entered judgment of conviction,
stayed imposition of sentence, and placed him on probation for five years. Smith appeals.
D E C I S I O N
I.
The United States and Minnesota Constitutions guarantee “[t]he right of the people
to be secure in their persons, houses, papers, and effects” against “unrea sonable searches
and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. “The touchstone of the
Fourth Amendment is reasonableness.” State v. Johnson, 813 N.W.2d 1, 5 (Minn. 2012)
(quotation omitted).

5
Generally, warrantless searches and seizures are per se unreasonable. State v. Horst,
880 N.W.2d 24, 33 (Minn. 2016). But a police officer may stop and detain a person without
a warrant for investigative purposes based on specific and articulable facts that create a
reasonable suspicion of illegal activity. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000)
(citing Terry v. Ohio , 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)) . “[T]he reasonable
suspicion standard is not high,” but it requires more than an unarticulated “hunch.” State
v. Timberlake, 744 N.W.2d 3 90, 393 (Minn. 2008) (quotations omitted). An officer may
not stop a person based on “mere whim, caprice, or idle curiosity.” Marben v. State, Dep’t
of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (quotation omitted).
In determining whether reasonable suspicion exists, Minnesota courts “consider the
totality of the circumstances and acknowledge that trained law enforcement officers are
permitted to make inferences and deductions that would be beyond the competence of an
untrained person.” State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001). This court
reviews a district court’s determination of reasonable suspicion de novo, but accepts the
district court’s factual findings unless they are clearly erroneous. State v. Smith , 814
N.W.2d 346, 350 (Minn. 2012).
“[E]ach incremental intrusion during a stop must be ‘strictly tied to and justified by
the circumstances which rendered [the initiation of the stop ] permissible.’” State v.
Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (alteration in original) (quoting Terry, 392
U.S. at 19, 88 S. Ct. at 1878) (other quotation marks omitted). Under the Minnesota
Constitution, “an intrusion not strictly tied to the circumstances that rendered the initiation

6
of the stop permissible must be supported by at least a reasonable suspicion of additional
illegal activity.” Smith, 814 N.W.2d at 350.
Smith argues that “the stop of [his] vehicle was justified at its inception because
Officer Spencer observed [him] speeding” and that “Spencer expanded the scope and
duration of the stop beyond its original purpose when he seized Smith not for the purpose
of investigating the speeding but for the purpose of investigating his ‘very suspicious’
behavior after he pulled into and parked in the driveway.” See State v. George, 557 N.W.2d
575, 578 (Minn. 1997) (“[I]f an officer observes a violation of a traffic law, however
insignificant, the officer has an objective basis for stopping the vehicle.”). Smith further
argues that “Spencer lacked a reasonable, articulable suspicion that [he] was engaged in
criminal activity” and that Officer Spencer unlawfully seized him by “direct[ing] him to
approach Spencer and respond to questions.”
Under the Minnesota Constitution, a seizure occurs when, given the totality of the
circumstances, “a r easonable person in the defendant’ s shoes would have concluded that
he or she was not free to leave.” In re Welfare of E.D.J. , 502 N.W.2d 779, 783 (Minn.
1993); see also Askerooth, 681 N.W.2d at 362 (explaining that article I, section 10 of the
Minnesota Constitution provides greater protection than the Fourth Amendment, under
which a seizure only occurs when the police use physical force or a person submits to a
show of authority by the police). Smith’s argument suggests that there were two seizures
in this case: “t he stop of [his] vehicle” and Officer Spencer’s act of “direct [ing] him to
approach [the officer] and respond to questions.”

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As to Smith’s reference to “the stop of [his] vehicle,” there is no evidence that
Officer Spencer stopped Smith’s vehicle. Officer Spencer did not use his squad car
lights—or any other means —to lead Smith to conclude that he was required to stop his
vehicle. See State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993) (noting that an officer’s
use of flashing squad lights in many situations “would signal to a reasonable person that
the officer is attempting to seize the person for investigative purposes”). Instead, the record
indicates that Smith pulled off of the roadway, parked, and got out of his vehicle based on
his own volition. Thus, Smith’s seizure did not begin with a “stop” of his vehicle.
Instead, Smith’s seizure began when Officer Spencer approached Smith , as Smith
stood outside of his vehicle , and directed Sm ith to approach the officer for questioning.
See E.D.J., 502 N.W.2d at 782-83 (stating that although the police generally may approach
an individual and ask questions without seizing that individual, it is a seizure where the
police direct the individual to stop); State v. Day, 461 N.W.2d 404, 407 (Minn. App. 1990)
(holding that police officer’s action of “summoning” defendant to “approach the officer’s
squad car to provide identification and to respond to questioning” constituted a seizure
under the Fourt h Amendment) , review denied (Minn. Dec. 20, 1990) . We therefore
disagree with Smith’s suggestion that this case involves an unlawful expansion of a vehicle
“stop.” Officer Spencer did not stop Smith’s vehicle ; he seized Smith after Smith parked
and exited his vehicle. We therefore consider whether Officer Spencer had reasonable ,
articulable suspicion when he did so.
Officer Spencer testified that Smith’s evasive conduct caused him to suspect that he
“may have interrupted a crime in progress.” Evasive b ehavior is a pertinent factor in a

8
reasonable-suspicion determination. Illinois v. Wardlow , 528 U.S. 11 9, 124, 120 S. Ct.
673, 676 (2000). In fact, e vasive conduct alone may give rise to reasonable suspicion
justifying an investigat ive seizure. See State v. Petrick , 527 N.W.2d 87, 87 -89 (Minn.
1995) (concluding that officer articulated sufficient grounds for traffic stop based solely on
evasive driving conduct).
For example, in State v. Johnson, 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 reaso nable
police officer would not infer any wrongdoing from the
driver’s response, then the officer does not have a particular
and objective basis for suspecting 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 police officer would suspect the driver of
criminal activity, then the officer may stop the driver.

444 N.W.2d 824, 826-27 (Minn. 1989) (emphasis added).
The supreme court in Johnson concluded that evasive driving conduct justified an
investigative seizure, reasoning:
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 [the] defendant’s
behavior may have been consistent with innocent behavior, it
also reasonably caused the officer to suspect that [the]
defendant was deliberately trying to evade him. In short, the

9
record we have on appeal in this case indicates that the trooper
reasonably inferred that [the] defendant was deliberately trying
to evade him and that, as a result, the trooper reasonabl y
suspected petitioner of wrongdoing.

Id. at 827 (quotation omitted).
Like the driver in Johnson, Smith deviated from the direction that he had been
traveling after he noticed a police presence. Smith turned into a driveway , approached a
residence, returned to his vehicle without contacting anyone in the residence, and later
exited the vehicle on the passenger side, where Officer Spencer was less likely to see him.
That evidence of evasive conduct is as strong as the evasive conduct in Johnson. Moreover,
Smith’s initial seizure was not based on evasive conduct alone; it was also based on his
traffic violation . Smith’s traffic violation, combined with his evasive conduct, created
reasonable suspicion of criminal activity, justifying his seizure for investigatory purposes.
Smith relies on State v. Davis , 910 N.W.2d 50 (Minn. App. 2018), to argue that
Officer Spencer did not have reasonable suspicion to seize him. In Davis, police saw a
vehicle turn without signaling. 910 N.W.2d at 53. The officers lost sight of the vehicle,
and when they saw it again, it was pulling away from a curb. Id. The officers saw Davis
standing in a yard and suspected that he had been a passenger in the vehicle. Id. Davis
looked away from the officers and s tarted walking away quickly. Id. An officer grabbed
Davis, handcuffed him, and began asking him questions. Id.
This court stated that Davis’s suspected presence in a vehicle that had failed to signal
a turn, combined with his actions indicating he did not want to interact with police,
“support[ed] nothing more than a hunch, a mere whim, or a guess that Davis had violated

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or was about to violate some law.” Id. at 54. This court affirmed the district court’s ruling
that the stop was unconstitutional because the circumstances “fell far short of constituting
specific and articulable facts that create a reasonable suspicion of illegal activity.” Id.
Davis is distinguishable from this case. In Davis, the police handcuffed the
defendant and began questioning him based on his suspected presence in a vehicle that had
been used in the commission of a minor traffic violation and on his apparent lack of interest
in speaking to police. Id. at 53. Here, Smith himself violated a traffic law and then engaged
in evasive conduct after noticing a police presence. Unlike Davis, the circumstances here
created reasonable suspicion of criminal activity , which justified Smith’s seizure for
investigative purposes.
II.
Smith contends that “because S pencer lacked probable cause to believe [he] had
committed or was about to commit a crime,” he was subjected to “an unlawful de facto
arrest when, moments after seizing him, Spencer search ed [him], handcuffed him, and
confined him in a squad car.” 2 “[A] district court’s legal conclusions related to a Fourth
Amendment search and seizure are reviewed de novo.” State v. Zornes, 831 N.W.2d 609,
621 (Minn. 2013).
[T]here is a fine line between an arrest and an i nvestigatory
detention. It is not always apparent at what precise moment an
arrest occurs. The action of the police officers must be judged

2 The search to which Smith refers is Officer Spencer ’s act of prying his hand open.
Although Smith contends that Officer Spencer’s act was an unconstitutional search, he
does not argue that he is entitled to suppression on that ground. Instead, he argues that the
act was a use of force that contributed to the conversion of his investigatory seizure to a de
facto arrest.

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according to the circumstances existing at the time. But the
determination whether an arrest occurs at the initial stop should
not be decided solely by the conduct of the arresting officers or
the amount of force they exhibit at the time.

State v. O’Neill, 216 N.W.2d 822, 827-28 (Minn. 1974) (citations omitted).
“The ultimate test to be used in determining whether a suspect was under arrest is
whether a reasonable person would have concluded, under the circumstances, that he was
under arrest and not free to go.” State v. Beckman , 354 N.W.2d 432, 436 (Minn. 1984)
(citing Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319 (1983)). But as explained below,
courts also consider officer safety when determining whether police conduct turned an
investigative seizure into an arrest requiring probable cause.
There is no brigh t-line test separating a legitimate
investigative stop from an unlawful arrest. Instead, common
sense and ordinary human experience m ust govern over rigid
criteria. In determining whether a police officer’s conduct
turned an investigative stop into an unlawful arrest, courts must
specifically consider the aggressiveness of the police methods
and the intrusiveness of the stop against the justification for the
use of such tactics, i.e., whether the officer had a sufficient
basis to fear for his or her safety.

State v. Balenger , 667 N.W.2d 133, 139 (Minn. App. 2003) (quotation and citations
omitted), 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. The trend has been to
grant officers greater latitude in using force in order to “neutralize” potentially dangerous
suspects during an investigative stop. Id. (quotation omitted). “Thus, the use of force
reasonable under the circumstances will be permitted without a showing of probable cause

12
when force is necessary for the protection of the investigating officers and the degree of
force used is reasonable.” Id.
This case is somewhat similar to State v. Carver , in which an officer stopped the
defendant’s vehicle after observing it speeding. 577 N.W.2d 245, 247 (Minn. App. 1998).
The officer ordered the defendant to get out of his vehicle and assume the prone position
on the road. Id. The officer then approached the defendant, handcuffed him, and placed
him in the officer’s patrol car. Id. The officer testified that he took those precautions
because of the way the vehicle went speeding past his patrol car without slowing down,
because it was not clear to the officer why the defendant was speeding , and because the
officer did not know the location of the nearest backup. Id. The district court granted the
defendant’s motion to suppress evidence obtained after the defendant had been handcuffed
and placed in the squad car. Id.
On appeal, the state argued that the Carver defendant was not under arrest when he
was ordered to assume the prone position on the roadway and handcuffed. Id. This court
reasoned that although ordering the defe ndant to lie on the ground did not constitute an
arrest, the officer’s additional action of handcuffing the defendant “sufficiently restrained
freedom of movement so as to give a reasonable person the belief that he was not free to
go.” Id. at 248.
Like the circumstances in Carver, the police seized Smith, in part, for speeding,
handcuffed him, and placed him in a squad car. But the circumstances here provide greater
justification for the use of handcuffs and the squad-car detention because Smith’s seizure
was also based on his evasive conduct and his uncooperative, belligerent behavior. In

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addition, Officer Spencer told Smith that he was being detained for an investigation, which
undercuts Smith’s argument that a reasonable person would hav e concluded, under the
circumstances, that he was under arrest . See State v. Moffatt, 450 N.W.2d 116, 117, 119-
20 (Minn. 1990) (holding that hour-long detention in squad cars was investigative seizure,
and not de facto arrest, in part because suspects wer e told that they were being detained
and were not under arrest).
We are also influenced by the short duration of Smith’s seizure. “[B]riefly
handcuffing a suspect while the police sort out the scene of an investigation does not per
se transform an investigatory detention into an arrest, nor does placing the suspect in the
back of a squad car while the investigation proceeds.” State v. Munson, 594 N.W.2d 128,
137 (Minn. 1999). We note that t he record indicates that the police found the marijuana
outside of Smith’s vehicle not long after Smith was detained in the squad car for
investigatory purposes . Smith does not dispute that the d iscovery of that marijuana
provided probable cause for his arrest. State v. Carlson , 267 N.W.2d 170, 173 (Minn.
1978) (“Probable cause exists where the facts would lead a person of ordinary care and
prudence to entertain an honest and strong suspicion that the person under consideration is
guilty of a crime.”). Thus, the record does not indicate that Smith’s pre-probable-cause
investigatory detention was unreasonably prolonged.
Ultimately, we must determine whether, under the totality of the circumstances, the
facts available at the moment of the stop “would cause a person of reasonable caution to
believe that the action taken was appropriate.” Balenger, 667 N.W.2d at 139. Given the
circumstances, it was reasonable for Officer Spencer to temporarily ha ndcuff Smith and

14
detain him in the squad car while Officer Spencer completed his investigation, which
quickly led to the discovery of marijuana and probable cause for an arrest . Officer
Spencer’s act of prying open Smith’s clenched fist does not tip the balance in favor of a
conclusion that his use of force was unreasonable and therefore resulted in a de facto arrest.
See id. (stating that “use of force reasonable under the circu mstances will be permitted
without a showing of probable cause when force is necessary for the protection of the
investigating officers and the degree of force used is reasonable”).
In sum, Smith’s investigative seizure was supported by reasonable suspici on, and
Officer Spencer’s actions during the seizure did not convert it to a de facto arrest. We
therefore reject Smith’s argument that the marijuana should have been suppressed as the
fruit of an illegal seizure or an illegal arrest. See State v. Jackson, 742 N.W.2d 163, 177-
78 (Minn. 2007) (“Generally, evidence seized in violation of the constitution must be
suppressed.”).
III.
Smith contends , for the first time on appeal , that “[e]ven if [he] was lawfully
detained, and even if the marijuana was not suppressible as fruit of the poisonous tree, the
warrantless seizure and search of the black plastic bag in which the marijuana was found
was unconstitutional.” Smith “acknowledges he did not make this specific argument in the
district court” but nonethel ess argues that this court can review the seizure and search of
the bag.
Appellate courts generally do not decide issues that are raised for the first time on
appeal. State v. Roby, 463 N.W.2d 506, 508 (Minn. 1990). Moreover, when a defendant

15
stipulates to the prosecution’s case to obtain review of a dispositive pretrial ruling, as is the
case here, this court’s review is limited to that pretrial ruling. See Minn. R. Crim. P. 26.01,
subd. 4(a) (“When the parties agree that the [district] court’s rulin g on a specified pretrial
issue is dispositive of the case, . . . the following procedure must be used to preserve the
issue for appellate review.” (emphasis added )); id., subd. 4(f) (stating that “appellate
review will be of the pretrial issue”). The district court’s order indicates that Smith limited
the pretrial issues to “whether law enforcement had probable cause to stop and seize [him]
and his vehicle and whether the subsequent warrantless search of [him] and the vehicle was
in violation of his constitutional rights.” Smith did not separately challenge the search of
the black plastic bag ; instead, he relied on the theory that the contents of the bag were
suppressible as the fruit of his illegal seizure . Thus, the legality of that search is not
properly before this court on appeal.
Smith argues that we should consider the search of the black plastic bag because we
are obligated to decide cases in accordance with law. He relies on State v. Hannuksela, in
which the supreme court said that “it is the responsibility of appellate courts to decide cases
in accordance with law, and that responsibility is not to be diluted by counsel’s oversights,
lack of research, failure to specify issues or to cite relevant authorities.” 452 N.W.2d 668,
673 n.7 (Minn. 1990) (quotation omitted).
In Hannuksela, the defendant challenged , in district court, the legality of a search ,
arguing that the underlying search warrant was not adequately particular. Id. at 670, 672.
On appeal, the supreme court agreed that one line i n the warrant allowed unconstitutional
“rummaging” and was not adequately particular. Id. at 673. The parties had not briefed

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whether the severance doctrine should be applied to limit the suppression of evidence based
on the unlawful search to evidence discovered as a result of the single unconstitutional line.
Id. at 673 & n.7. In sum, the new issue that the supreme court considered related to the
remedy for the constitutional violation that was properly before the court. Those are not
the circumstances here. Smith attempts to assert an entirely new constitutional violation
as a basis for suppression: the constitutional validity of the search of the black plastic bag.
Smith may not do so in this appeal.
Affirmed.