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This opinion will be unpublished and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
A19-1726

State of Minnesota,
Respondent,

vs.

Denarro Jesse Cunningham,
Appellant.

Filed December 14, 2020
Affirmed
Bryan, Judge

Hennepin County District Court
File No. 27-CR-18-25682

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

Michael O. Freeman, Hennepin County Attorney, Adam E. Petras, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Melissa Sheridan, Assistant Public Defender, Eagan, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Ross, Judge; and Bjorkman,
Judge.
U N P U B L I S H E D O P I N I O N
BRYAN, Judge
In this direct appeal from the judgment of conviction for unlawful possession of a
firearm, appellant challenges the district court’s denial of his motion to suppress evidence.

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Because the officers involved had a particularized and objective basis to suspect appellant’s
involvement in criminal activity, we affirm the district court’s decision.
FACTS
At around 11:00 p.m. on October 14, 2018, a confidential informant saw a male at
Pennwood Market attempt to get into a closed store. The man then displayed and pointed
a firearm at a car before leaving the store on foot. The informant described the person as
a Black man wearing a brown jacket over a hoodie, blue jeans, white tennis shoes, and
headphones. The informant told a police sergeant that the man headed north on Penn
Avenue, on the west side of the street, towards Olson Memorial Highway.
The police sergeant relayed the information to two officers who were on patrol and
near the location described by the informant. A few minutes after receiving the
information, the two officers saw a man who matched the suspect’s description in all
respects except one. He was wearing blue jeans, white shoes, headphones, and a black
jacket over a gray hoodie. He was walking north on Penn Avenue at Olson Memorial on
the west side of the street . The officers did not see any other male who matched the
description in the area. The officers stopped their squad car and immediately exited,
frisked the man, and discovered two firearms. This man was identified as appellant Denero
Jesse Cunningham.1 Respondent State of Minnesota charged Cunningham with possession
of a firearm by an ineligible person.

1 The caption in the district court lists defendant as “Denarro Jesse Cunningham,” and that
spelling is used in the caption on appeal. Minn. R. Civ. App. P. 143.01 (directing that the
title of an action “not be changed in consequence of [an] appeal”). Because Cunningham
spells his name as Denero, we use that spelling here.

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Cunningham moved to suppress evidence of the firearms as a result of an unlawful
search. The district court deni ed Cunningham’s motion. It found that the seizure was
reasonable based on what the officers knew at the time —that an individual attempted to
enter a locked store, that the suspect pointed a firearm at a car, that the suspect was traveling
north on Penn Avenue, and that the suspect was wearing jeans, light colored shoes, a dark
coat, a hooded sweatshirt, and headphones.
Regarding the color of Cunningham’s jacket, the district court found that “ [t]he
difference in color between brown and black is not substan tial enough to undercut the
weight of the other corroborated details linking [Cunningham] to the suspected criminal
activity, especially considering both brown and black are dark colors and the incident
occurred in the dead of night.” The district court found that, not only did Cunningham
match the suspect’s description, Cunningham was in the area that the informant described
and traveling in the same direction as the suspect. Based on these facts, the district court
concluded that the officers had a part icularized and objective basis for suspecting
Cunningham of criminal activity and that they legally stopped him to conduct an
investigation.
Cunningham waived his right to a jury trial and agreed that the state could submit
the case to the district court o n stipulated facts, preserving for appeal his challenge to the
investigatory stop . See Minn. R. Crim. P. 26.01, subd. 4. The district court found
Cunningham guilty of possession of a f irearm by an ineligible person. Cunningham
appeals, challenging the district court’s denial of his pretrial suppression motion.

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D E C I S I O N
Cunningham argues that the police officers lacked reasonable suspicion because his
description did not exactly match t he information that the officers ha d received. The
informant had described a person wearing a brown jacket, not a black jacket, like the one
that Cunningham was wearing. We are not persuaded and affirm the district court’s
decision to deny Cunningham’s suppression motion because the infor mation provided the
officers with a particularized and objective basis to suspect Cunningham of criminal
activity.
Both t he United States and Minnesota C onstitutions prohibit “unreasonable
searches and seizures.” U.S. Const. amend IV; Minn. Const. art. I, § 10. “To determine
whether this constitutional prohibition has been violated, we examine the specific police
conduct at issue.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008). The conduct
at issue here is an investigative stop based on information received from a confidential
source who observed illegal activity.
“To lawfully seize a person temporarily to investigate a crime, a police officer must
have a reasonable, articulable suspicion that the person was or will be engaged in criminal
activity.” State v. Wiggins, 788 N.W.2d 509, 513 (Minn. App. 2010) (citing Terry v. Ohio, 392 U.S. 1, 21 -22, 88 S. Ct. 1868, 1880 (1968) ), review denied (Minn. Nov. 23, 2010 ).
“[T]he reasonable suspicion showing is ‘not high.’” State v. Bourke, 718 N.W.2d 922, 927
(Minn. 2006) (quoting Richards v. Wisconsin , 520 U.S. 385, 394 , 117 S. Ct. 1416, 1422
(1997)). But it must be based on specific, articulable facts that allow the officer to articulate
“that he or she had a particularized and objective basis for suspe cting the seized person of

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criminal activity.” State v. Diede , 795 N.W.2d 836, 842 -43 (Minn. 2011) (quotation
omitted). “Evidence obtained as a result of a seizure without reasonable suspicion must be
suppressed.” Id. at 842.
Information provided by a r eliable informant can satisfy the reasonable suspicion
standard. Timberlake, 744 N.W.2d at 393. “But information given by an informant must
bear indicia of reliability that make s the alleged criminal conduct sufficiently likely to
justify an investigatory stop by police.” Id. at 393-94. There are six factors for determining
the reliability of a confidential, but not anonymous, informant:
(1) a first-time citizen informant is presumably reliable; (2) an
informant who has given reliable information in the past is
likely also currently reliable; (3) an informant’s reliability can
be established if the police can corroborate the information;
(4) the informant is presumably more reliable if the informant
voluntarily comes forward; (5) in narcotics cases, “controlled
purchase” is a term of art that indicates reliability; and (6) an
informant is minimally more reliable if the informant makes a
statement against the informant's interests.

State v. Ross, 676 N.W.2d 301, 304 (Minn. App. 2004) (citing State v. Ward, 580 N.W.2d
67, 71 (Minn. App. 1998)), review denied (Minn. June 15, 2004). Only the third factor is
at issue in this case and, according to Cunningham, this factor precludes a determination
of reasonable suspicion. When reviewing a district court’s pretrial-suppression ruling, we
“accept the district court’s factual findings unless they are clearly erroneous” and “review
de novo a district court’s determination of reasonable suspicion of illegal activity .” State
v. Smith, 814 N.W.2d 346, 350 (Minn. 2012). In this case, neither party contests the district
court’s factual findings on appeal, so we review the district court’s determination of
reasonable suspicion de novo.

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Cunningham maintains that the officers did not have a basis to suspect him of
criminal activity because the informant stated that the suspect wore a brown jacket, and
Cunningham wore a black one. We disagree. As the district court observed, both brown
and black are darker colors and can appear similar to one another. This is especially true
at 11:00 p.m. on an October night. Moreover, the informant’s description included several
other details that matched Cunningham’s clothing. As described by the informant,
Cunningham wore the dark colored jacked over a hoodie, and had on blue jeans, white
shoes, and headphones. Finally, Cunningham was headed in the same direction and on the
same side of the street as described by the informant. The officers —who arrived within
minutes of receiving the information —did not see any other male who m atched the
description in the area . Therefore, the officers had reasonable, articulable suspicion that
Cunningham was the person described by the informant who attempted to get into a closed
store, displayed a firearm, and pointed it at a car.2
Cunningham also argues that, based on our holding in State v. Cook , 610 N.W.2d
664, 668 (Minn. App. 2000), review denied (Minn. July 25, 2000), the police corroborated
insufficient details to establish reasonable suspicion. We disagree for two reasons. First,
Cook involved the review of a district court’s determination of probable cause, not
reasonable suspicion. 3 See 610 N.W.2d. at 669 (holding that the officer may have had
“reasonable suspicion” to legally stop and question the defendant , but insufficient facts to

2 Cunningham does not contest t he finding that the informant saw the suspect point a
firearm at a car.
3 Cunningham also does not argue that an arrest occurred or that the encounter required
probable cause.

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support probable cause to arrest at that time). Second, the analysis in Cook concerned the
basis for the suspicion of illegal activity, not the identity of the suspect. Id. at 668. In
Cook, this court concluded that while the informant provided a n accurate physical
description, the information could not support a finding of probable cause because the
information failed to show “a basis of knowledge” and failed to support the claim that Cook
sold drugs. Id. We stated that the informant’s suspicio n of illegal activity must “be
supplied directly, by first-hand information . . . or indirectly through self-verifying details”
that go beyond general reputation or rumor. Id. The information provided by the informant
in Cook regarding Cook’s illegal activity (selling drugs) included no direct or indirect basis
of knowledge. Id. By contrast, the informant in this case explained the direct, first -hand
basis for the informant’s suspicion: the informant personally saw the suspect point a gun
at a car. For those reasons, Cook does not apply.
In sum, the responding officers sufficiently corroborated several specific details
from the information reported to believe that Cunningham was the person described by the
informant. Therefore, the officers had a specific, articulable, and objective basis to suspect
Cunningham of criminal activity when they initiated the investigative stop in this case.
Affirmed.