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This opinion will be unpublished and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
A18-1735

State of Minnesota,
Respondent,

vs.

Russell Edward Brown,
Appellant.

Filed January 6, 2020
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27-CR-18-12792

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

Erik Nilsson, Acting Minneapolis City Attorney, Zenaida Chico, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Reilly, Judge; and Cochran,
Judge.

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U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his conviction of loitering with intent to solicit the illegal sale,
distribution, purchase, or possession of narcotics, arguing that his conduct did not amount
to loitering within the meaning of a Minneapolis ordinance. We affirm.
FACTS
In the early evening of April 11, 2018, Minneapolis police were remotely
monitoring a surveillance camera located at the intersection of 10th Street North and Currie
Avenue, an area well-known for crack cocaine sales. Officer Craig Williams observed
appellant Russell Edward Brown standing in front of an abandoned building and engaging
in two encounters that he believed were hand -to-hand narcotics transactions. On both
occasions, individuals app roached Brown and placed money in his hand . Brown then
removed a small item from his mouth and gave it to the individual. Officer Williams
believed the items were baggies containing crack cocaine. Sergeant Darcy Klund also
monitored the c amera and saw Brow n “conduct at least two hand -to-hand” narcotics
transactions.
At trial, the two officers testified about their observations. And portions of the
surveillance video were admitted into evidence. The first video clip, which according to
its time stamp, begins at 5:44:14 p.m. and ends at 5:46:42 p.m. , shows Brown leaning
against the building when a man approaches and hands him what appears to be crumpled
papers. Brown then takes a small item out of his mouth and passes it into the hands of the
man, who turns and walks away. In the second clip, which runs from 6:02:23 p.m. to

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6:02:52 p.m., a different man approaches Brown, who is standing in the same place. The
man makes an open-hand gesture to Brown, and removes what appears to be paper currency
from his pocket and places it in Brown’s pocket. Brown then turns toward the man, spits
something into the man’s hand, and the man walks away. Sergeant Klund testified that he
and Officer Williams “continued to monitor the area for . . . roughly 20 minu tes or so”
before patrol officers moved in to arrest Brown. The arresting officers found multiple
denominations of currency, some crumpled up, on Brown’s person. But they did not find
any narcotics.
Brown testified on his own behalf. He stated that he knew police were monitoring
the area and described his conduct as a ploy to fool them. He denied being involved in a
controlled-substance transaction. He also testified that there was a “long gap” between the
two video clips.
The jury found Brown guilty. Brown appeals.
D E C I S I O N
The Minneapolis ordinance at issue prohibits individuals from “loiter[ing] on the
streets or in a public place or in a place open to the public with intent to solicit for the
purposes of . . . i llegal narcotic sale, distribution, purchase or possession.” Minneapolis,
Minn., Code of Ordinances (MCO) § 385.50(a) (2016). 1 If the language of a statute or
ordinance is unambiguous, the plain meaning of the language controls. State v. Boecker,

1 Various acts, such as transferring small objects or currency “in a furtive fashion” and
carrying “small objects or packages in one’s mouth” may demonstrate “inten[t] to loiter
for the purpose of engaging in distributing illegal narcotics.” MCO § 385.50(d)(4), (5)
(2016). Brown does not challenge the intent element of his conviction.

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893 N.W.2d 348, 351 (Minn. 2017); Yeh v. County of Cass, 696 N.W.2d 115, 128 (Minn.
App. 2005) (stating that rules governing statutory interpretation also apply to the
interpretation of ordinances) , review denied (Minn. Aug. 16, 2005) . We review the
interpretation of an ordinance de novo. Eagle Lake of Becker Cty . Lake Ass’n v. Becker
Cty. Bd. of Comm’rs, 738 N.W.2d 788, 792 (Minn. App. 2007).
The ordinance does not define “ loitering.” But our supreme court considers it “a
term of common us age with a mean ing reasonably understood by persons of common
intelligence.” State v. Armstrong , 162 N.W.2d 357, 360 (Minn. 1968). We may apply
dictionary definitions to analyze the term’s plain and ordinary meaning. State v. Peck, 773
N.W.2d 768, 772 (Minn. 2009). Black’s Law Dictionary defines “loitering” as “remaining
in a certain place (such as a public street) for no apparent reason.” Black’s Law Dictionary
1084 (10th ed. 2014). Consistent with the patterned criminal jury instructions, the district
court told the jury that “[l]oitering means to be slow in moving, delaying, lingering,
sauntering or lagging behind.” See 10 Minnesota Practice , CRIMJIG 12.73 (201 5)
(defining “loitering” for purposes of the offense of loitering with intent to commit
prostitution as “to be slow in moving, delaying, lingering, sauntering, or lagging behind”).
Brown’s sole argument is that the evidence did not establish the loitering element
of the offense. 2 He does not c ontend the word “loitering” is ambiguous or challenge the
jury instruction. Rather, he asserts that “the videos capturing [his] conduct were, in total,

2 Brown does not deny the observed hand-to-hand transfer of narcotics.

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three minutes long,” which is an insufficient period of time to constitute loitering as a
matter of law. We are not persuaded.
First, Brown’s argument mischaracterizes the evidence. The first of the two video
clips begins at 5:44 p.m. and the second clip ends at 6:02 p.m. In both clips, Brown is
standing in the same location and wearing the same clothe s. Officer Williams observed
Brown standing there prior to and during the two transactions, and up until his arrest, a
period that exceeds the 18 minutes captured in the two video clips. Brown himself testified
that there was a “long gap” between the two video clips.
Second, t he caselaw does not support Brown’s argument that the state failed to
prove he was loitering. I n State v. Hawkins, the defendant was arrested for violating the
same ordinance after he was observed riding a bike in an area for about 15 minutes, hailing
motorists, and engaging in hand -to-hand exchanges an officer deemed consistent with a
drug transaction. 622 N.W.2d 576, 578 (Minn. App. 2001). This court concluded that
these circumstances were sufficient to permit the reasonabl e belief that Hawkins engaged
in drug sales. Id. at 581. Likewise, in State v. Smith, the supreme court held that police
had probable cause to arrest the defendant for violating the ordinance when they observed
him for 30 minutes, and “the location and defendant’s conduct were consistent with crack
dealing.” 476 N.W.2d 511, 517 (Minn. 1991).
Citing an unpublished decision of this court, Brown asserts that his mere presence
in a high -crime area does not support the conclusion that he was loitering. See State v.
Braziel, No. A11-748, 2012 WL 1813281, at *3 (Minn. App. May 21, 2012). We agree.
But this general proposition is not implicated here because Brown was not merely present

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in a high-crime area. He stood against an abandoned building located in a high-crime area
for over 18 minutes. And police saw him conduct two hand-to-hand transactions that were
consistent with narcotics sales. On this record, we are satisfied that Brown’s conduct
constitutes loitering under the plain language of the ordinance.
Affirmed.