State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-2080

State of Minnesota,
Respondent,

vs.

Brenden Reynolds,
Appellant.

Filed January 11, 2021
Affirmed
Segal, Chief Judge
Dissenting, Bratvold, Judge

Ramsey County District Court
File No. 62-CR-18-6582

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

John J. Choi, Ramsey County Attorney, St. Paul, Minnesota; and

Lyndsey M. Olson, St. Paul City Attorney, Maureen J. Dolan, Assistant City Attorney,
St. Paul, Minnesota (for respondent)

Casey T. Rundquist, Minneapolis, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Segal, Chief Judge; and Kirk,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

2
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
Appellant challenges his conviction of possessing a pistol without a perm it in a
public place, a gross -misdemeanor offense. Appellant contends that law enforcement’s
use of a “felony stop ,” involving guns drawn and handcuffing, violated his Fourth
Amendment rights and that the search of his person, during which the handgun was found,
exceeded the permissible scope of an investigative search under Terry v. Ohio, 392 U.S. 1,
88 S. Ct. 1868 (1968). Because the state proved that law enforcement’s actions were
permissible under the circumstances in this case, we conclude that the stop and subsequent
search were lawful and we affirm.
FACTS
On the morning of September 7, 2018, the police were called to the scene of a
homicide. The police suspected that the homicide stemmed from a drug robbery gone bad
after three males tried to rob another male. The police believed that the robbery victim was
armed along with at least two of the other males , and a shootout occurred that involved
several firearms. One of the presumed “robbers” was killed during the exchange of gunfire.
Within hours of the homicide, the police arrested one of the two suspects, but were
still looking for the second suspect and one of the guns involved in the homicide. The
police then learned from a family member of the deceased that an impromptu memorial
service was being held at the home of the homicide victim. Police were told that the second
suspect (target suspect) was there and likely had a gun.

3
Surveillance was set up at the house with a special agent from the United States
Bureau of Alcohol, Tobacco , Firearms and Explosives (ATF)1 responsible for primary
surveillance on the north and west sides of the house. Officers saw the target suspect enter
the house. The special agent observed an individual, later identified as appellant Brenden
Reynolds, outside the house and spotted what he believed to be a firearm concealed in the
pocket of Reynolds’s sweatshirt. The special agent radioed this information to the other
officers involved in the investigation , but made it clear that Reynolds was not the target
suspect. Based on the information from the special agent that Reynolds was likely carrying
a gun and the fact that one of the guns used in the homicide had not yet been recovered,
the police decided to follow Reynolds when he left in a car and to stop him after he was a
few blocks away from the house.
Officers ordered Reynolds out of the vehicle at gunpoint. Reynolds complied and
was placed in handcuffs. At least five officers were on the scene. An officer pat searched
Reynolds’s person and felt a hard object t hat he believed to be a firearm. Police then
recovered a loaded Glock 9 millimeter semiautomatic pistol tucked in Reynolds’s
underwear.
Reynolds was charged with carrying a firearm without a permit in a public place, in
violation of Minn . Stat. § 624.714, subd. 1a (2018). Prior to trial, Reynolds moved to
suppress evidence of the recovered gun, challenging the validity of the stop and search. An
evidentiary hearing was held on the motion. The state presented testimony from five law-

1 The homicide occurred in the City of St. Paul and the homicide was being investigated
jointly by the St. Paul Police Department and the ATF.

4
enforcement witnesses, including the special agent, and provided body-camera video from
one of the involved officers. The sergeant in charge of the stop testified that he thought
there was a high likelihood tha t the gun spotted on Reynolds could have been one of the
guns involved in the homicide because firearms are “easily movable” and “can be passed
from one person to another.” The district court denied the motion to suppress on the
grounds that there was reasonable, articulable suspicion to stop Reynolds’s vehicle and to
perform a search of his person for weapons. The district court concluded that the scope of
the stop did not exceed the constitutional bounds of a Terry stop.
A bench trial was held pursuant to Minn. R. Crim. P. 26.01, subd. 4, based on
stipulated evidence to preserve the right to appellate review of the suppression ruling. The
district court found Reynolds guilty of gross misdemeanor possessing a pistol without a
permit under Minn. Stat. § 624.714, subd. 1a. Reynolds now appeals.
DECISION
The sole issue presented here is whether the district court erred in concluding that
law enforcement’s use of a “felony stop,” where guns were drawn and Reynolds was
handcuffed, was a lawful investigative Terry stop that required only reasonable, articulable
suspicion. Reynolds does not contest the right of law enforcement to initiate a Terry stop.
Instead, he contends that , by drawing guns and placing him in handcuffs , the stop was
converted from a Terry stop to an arrest requiring probable cause and that the conviction
should, therefore, be reversed and the case remanded to the district court for a
determination of whether there was probable cause for the arrest.

5
The issue raised by Reynolds is a question of law which we review de novo. State
v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008).
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures of people’s persons and property . U.S. Const. amend. IV; Minn. Const. art. I,
§ 10. Generally, a warrantless search is per se unreasonable unless a well -delineated
exception to the warrant requirement applies. State v. Flowers , 734 N.W.2d 239 , 248
(Minn. 2007) . If a search is unreasonable and violates the Fourth Amendment , any
evidence seized as a result of the search must be suppressed. Mapp v. Ohio, 367 U.S. 643,
648-49, 81 S. Ct. 1684, 1688 (1961); State v. Anderson, 415 N.W.2d 57, 60 (Minn. App.
1987).
A Terry stop is an exception to the warrant requirement that allows officers to stop
and search a person based on a lesser standard than is required for an arrest. Under Terry,
police may “stop and frisk a person when (1) they have a reasonable, articulable suspicion
that a suspect might be engaged in criminal activity and (2) the officer reasonably believes
the suspect might be armed and dangerous.” State v. Dicker son, 481 N.W.2d 840, 843
(Minn. 1992) (citing Terry, 392 U.S. at 30 , 88 S. Ct. at 1884 ), aff’d, 508 U.S. 366 , 113
S. Ct. 2130 (1993).
A Terry stop should be minimally invasive, and any invasiveness should be limited
to the protective purpose of allowing the officer to pursue the investigation without fear of
violence. Adams v. Williams , 407 U.S . 143, 146 , 92 S. Ct. 1921, 1923 (1972); see also
State v. Balenger, 667 N.W.2d 133, 139 (Minn. App. 2003) (citing Terry, 392 U.S. at 19-
20, 88 S. Ct. at 1879), review denied (Minn. Oct. 21, 2003). A Terry detention and search

6
may become more invasive, and the restraint more significant , if the officer believes the
subject is armed and presently dangerous. Terry, 392 U.S. at 24 , 88 S. Ct. at 1881; State
v. O’Neill, 216 N.W.2d 822, 828 (Minn. 1974). Each incremental intrusion on the subject’s
rights must be strictly tied to and justified by the circumstances. State v. Askerooth, 681
N.W.2d 353, 364 (Minn. 2004). Thus, “[a]n initially valid stop may become invalid if it
becomes intolerable in its intensity and scope.” Id. (quotations omitted).
To determine whether the “intensity and scope” of a stop was permissible, we
balance the nature and degree of intrusion on an individual’s rights versus the governmental
interest in crime prevention and law -enforcement safety. Id. at 364 -65; Balenger, 667
N.W.2d at 139. Facts are to be judged against an objective standard and the determination
made based upon the totality of the circumstances. Askerooth, 681 N.W.2d at 364. In
balancing the totality of the circumstances, we may look at such factors as the strength of
the officers’ articulable, objective suspicions at the time the person was “seized”; the
duration of the “ seizure”; the number of officers involved; and, finally, the need for
immediate action by the officers and lack of opportunity for them to have made the stop
under less threatening circumstances. United States v. Sharpe , 470 U.S . 675, 686, 105
S. Ct. 1568, 1575 (1985); Flowers, 734 N.W.2d at 253; State v. Munson, 594 N.W.2d 128,
137-38 (Minn. 1999).
Here, where Reynolds does not dispute that the officers had a valid basis for the
stop, the question is whether the intensity and scope of that stop converted a lawful stop

7
under Terry into a de facto arrest requiring probable cause.2 The district court, in denying
Reynolds’s motion to suppress, noted that the police “had ample reasonable, articulable
suspicion” that Reynolds possessed a gun based on the special agent’s observations and
that the agent testified in “great and credible detail about how he came to his conclusion .”
The district court also noted that the special agent had “extensive training and experience
with firearms.” See Flowers, 734 N.W.2d at 251 -52 (“[B]y virtue of the special training
they receive, police officers articulating a reasonable suspicion may make inferences and
deductions that might well elude an untrained person.”); see also Askerooth, 681 N.W.2d
at 369. Thus, the officers had a strong basis for their suspicion that Reynolds was carrying
a gun.
The duration of the “seizure” was also limited and no longer than was necessary to
conduct the pat search for weapons. The length of time from the stop of the vehicle to the
discovery of the handgun was only about three minutes. The entire encounter only took
slightly over four minutes. The duration then was short.

2 The Minnesota Supreme Court in State v. Timberlake , 744 N.W.2d 390, 397 (Minn.
2008), held that law enforcement can initiate a Terry stop based solely on a reasonable,
articulable suspicion that an individual is carrying a gun. The supreme court observed in
Timberlake that, even though it is lawful to carry a gun in public if the carrier has a lawful
permit, the state’s firearm statute, Minn. Stat. § 624.714, subd 1a (2006), serves as a general
prohibition on possessing firearms in public. Timberlake, 744 N.W.2d at 394 ; see also
State v. Williams , 794 N. W.2d 867, 872 (Minn. 2011). Thus, it is permissible for law
enforcement to perform a Terry stop based solely on reasonable, articulable suspicion that
a person is in possession of a gun in public . Williams, 794 N.W.2d at 872 ; Timberlake,
744 N.W.2d at 396-97. The right under the statute to carry a firearm in public with a permit
merely serves as an exception to be asserted as an affirmative defense by the gun holder.
Timberlake, 744 N.W.2d at 396-97.

8
With regard to the other factors, the district court pointed to the following
circumstances:
[the] police were in the midst of investigating a homicide, had
not yet recovered all of the firearms used in the incident, and
[Reynolds] was observed just hours after the killing with an
apparent firearm at an impromptu wake at a house associate d
with the homicide victim and one of the suspects.

The district court determined that these factors justified the number of officers involved
and the use of “felony stop” tactics where the officers stayed back by their squads with
guns drawn while Reynolds exited the car and was then handcuffed for the pat search.
Reynolds challenges the district court’s ruling on the grounds that “a reasonable
person would have concluded, under the circumstance s, that he was under arrest and not
free to go.” State v. Beckman, 354 N.W.2d 432, 436 (Minn. 1984). Reynolds’s argument,
however, ignores the broad swath of protection recognized in caselaw for officer safety.
As this court noted in Balenger, “the trend has been to ‘grant[] officers greater latitude in
using force in order to ‘neutralize’ potentially dangerous suspects during an investigatory
[stop].’” 667 N.W.2d at 139 (quoting United States v. Perdue , 8 F.3d 1455, 1464 (10th
Cir. 1993)); see also Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 9.2(d) (6th ed. 20 20) (“For better or for worse . . . the trend has led to the
permitting of the use of handcuffs, the placing of suspects in police cruisers, the drawing
of weapons and other measures of force more traditionally associated with arrest than with
investigatory detention.” (quotation omitted)).
For example, in O’Neill, the supreme court held that the law-enforcement officers
were “justified for their own protection in holding the occupants [of the car] at gunpoint

9
until they were frisked for weapon s” based on the radio report transmitted to the officers
that the occupants of the car were armed. 216 N.W.2d at 828. The supreme court stated:
[T]he determination whether an arrest occurs at the initial stop
should not be decided solely by the conduct o f the arresting
officers or the amount of force they exhibit at the time. If an
officer making a reasonable investigatory stop has cause to
believe that individual is armed, he is justified in proceeding
cautiously with weapons ready.

Id.
The supreme court came to a similar conclusion in Munson involving a vehicle stop
where a confidential informant had advised police that a car contained a large amount of
cocaine and that it was possible the occupants may be armed. 594 N.W.2d at 132. The
police approac hed the car “with drawn guns, ordered the occupants out of the [car],
handcuffed the occupants and frisked them for weapons.” Id. at 137. The occupants were
detained for 20 minutes from the time of the initial stop to the time that drugs were
discovered in the car. The supreme court concluded that the officers had acted reasonably
under these circumstances to “safely conduct their investigation.” Id.
There are a number of other cases that are analogous. For example, in State v.
Ailport, the supreme court found that it was permissible under Terry for law enforcement
to order defendant out of his car in a motel parking lot at gunpoint, handcuff him , and
detain him in the back of a squad car while they executed a search warrant of a motel room
related to juvenile prostitution. 413 N.W.2d 140, 144 (Minn. App. 1987), review denied
(Minn. Nov. 18, 1987). The court noted that law enforcement was aware that the defendant
had a violent criminal history. Id.

10
And in State v. Bitterman , the supreme court held that a forcible stop of the
defendant at gunpoint was lawful under Terry when the defendant arrived at a duplex where
a search warrant was being executed for drugs. 232 N.W.2d 91, 93-94 (Minn. 1975). The
defendant was not an occupant of the apartment. Police, however, recognized defendant
as a heavy heroin user and “knew” from their training and experience that heroin users, as
a general matter, could often be armed. Id. at 94.
We further note that there are a number o f nonprecedential opinions of this court
that are also in accord.3

3 These cases include, for example: State v. Manuel, No. A20-0269, 2020 WL 5107299, at
*5 (Minn. App. Aug. 31, 2020) (police responded to a call that a man had fallen asleep or
was unconscious in a mini -van stopped in a White Castle drive -through lane; police did
not exceed permissible limits of a Terry stop when they handcuffed Manuel for purposes
of officer safety based on t heir observation that he appeared to be reaching toward the
backseat of the vehicle before exiting the car and officers suspected that he might have
reached for a weapon) , review denied (Minn. Nov. 25, 2020) ; State v. Palmer, No. A18-
1073, 2019 WL 2079803, at *5-7 (Minn. App. May 13, 2019) (the use of force by officers
stayed within the permissible bounds of a Terry stop even though police used their squad
cars to box in defendant’s car, several officers approached defendant with guns drawn and
pointed, police removed him from his vehicle, ordered him down on the ground and then
handcuffed and searched him based on a report from a confidential informant that the
informant had seen men with firearms and illegal drugs in the car being stopped by police);
State v. Bass , No. A16-0744, 2017 WL 1 210114, at * 4 (Minn. App. Apr. 3, 2017)
(permissible under Terry, for officer safety, for police to order two men out of a car at
gunpoint and handcuff them based on a radio transmission that a 911 caller had reported
there was a possible person with a gun inside of a vehicle in a parking ramp and, when the
officers arrived at the scene, they saw three occupied cars parked next to each other), review
denied (Minn. June 28, 2017) ; State v. Gray, No. A08-0468, 2009 WL 1586714 , at *2-3
(Minn. App. June 9, 2009) (the use of force was found reasonable for officer safety under
Terry when an officer spotted a man with a semiautomatic gun in the waistband of his pants
and four officers with a canine responded to the call for assistance and ordered the man to
the ground at gunpoint) , review denied (Minn. Aug. 11, 2009) ; and State v. Tennin , No.
A03-1805, 2004 WL 1152938 , at * 2 (Minn. App. May 25, 2004) (district court erred in
suppressing evidence of a gun seized during an incident in which police were responding
to a “man -with-gun” report; fact that officers exited their squad with guns drawn and

11
Reynolds compares his circumstances to those in State v. Carver where this court
found that when an officer pulled the defendant over for speeding, forced him to lie prone
on the ground, and put handcuffs on him, the officer’s actions exceeded a Terry stop and
the defendant had been arrested. 577 N.W.2d 245, 247 (Minn. App. 1998) . The facts in
Carver, however, are quite different from those presented here. In Carver, the defendant’s
vehicle was stopped by police for speeding —a noncriminal offense. The officer ordered
Carver out of the car and to lie down on the road. Id. The officer then handcuffed him and
escorted him back to the patrol car. Id. The officer’s justification for taking these measures
included the fact that the car continued to speed (75 miles per hour in a 55 mile -per-hour
zone) even though the officer was in a marked squad (but had not yet activated its lights or
siren) and the officer was alone and did not know where the closest “backup” was located.
Id. This court held that Carver was arrested without probable cause because none of the
circumstances identified by the officer justified requiring Carver to lie down on the road
and to be handcuffed. Id. at 249.
In this case, the stop was made because of credible evidence reported by a trained
ATF special agent that Reynolds was carrying a gun —a stop for suspicion of a criminal
offense, not a noncriminal traffic violation.4 Carver and other cases where officer conduct

ordered a group of men that included a man who fit the description provided by the 911
caller to show their hands did not convert the detention from a valid Terry stop to an arrest
without probable cause), review denied (Minn. Aug. 25, 2004).

4 It is worth noting that the fact that the offense level was that of a gross misdemeanor as
opposed to a felony is not relevant to the analysis . In O’Neill, for example, the offense
level was only a misdemeanor under a municipal ordinance. 216 N.W.2d at 827.

12
has often been found to exceed the reasonable bounds of Terry typically involve stops for
noncriminal, minor traffic offenses, whether it is speeding as in Carver, id. at 247, the lack
of a rear license-plate light as in Flowers, 734 N.W.2d at 243, or for failure to obey a stop
sign as in Askerooth, 681 N.W.2d at 356 -57. By contrast, here, the officers knew at the
time of the stop that a firearm was likely involved. Firearms inherently present at least the
potential for significant danger and, as t his court has previously stated , “the use of
reasonable force is almost invariably justified in cases involving persons suspected of being
armed.”5 Balenger, 667 N.W.2d at 140.
Moreover, in this case, the officers involved in stopping Reynolds were actively
investigating a homicide that had happened only four to five hours earlier that same day.
While Reynolds was not a suspect in the homicide , he was observed carrying what law
enforcement believed was a gun at the impromptu wake of the homicide victim where the
target suspect was present. In addition, the officers were still searching for one of the
weapons involved in the homicide, which was believed to be a semiautomatic firearm. The
sergeant in charge of the stop also testified that guns were often passed around and, thus,
they suspected that Reynolds may have taken possession of the gun used in the homicide
since he was at the same house as the target suspect. These facts distinguish this case from

5 We also note that, in Timberlake, the supreme court relied on the fact that the act of
carrying a firearm is inherently dangerous such that it would not be proper to impose what
would amount to an “impossible burden” on the state to prove that a person did not have a
permit. 744 N.W.2d at 396 -97. The supreme court explained that, i n making the
assessment of whether to place the burden of proving an exception on the defendant instead
of the state, the “court must decide that the act in itself, without the exception is ordinarily
dangerous to society or involves moral turpitude.” Id. at 397 (quotations omitted).

13
Carver. These facts also lend support to the final factor in the balancing test—the need for
immediate action.
As to the question of whether the stop might have been made under less threatening
circumstances, we can speculate that law enforcement could have deployed fewer officers,
but we are not persuaded that the intensity of the stop was outside the bounds of the scope
of conduct allowed under applicable precedent, particularly when considering the totality
of the factors. Here, the basis for the officers’ suspicions of criminal activity was strong,
the duration of the seizure was only a few minutes and the state established a reasonable
need for immediate action based on the ongoing investigation of a homicide that occurre d
within no more than five hours before the stop of Reynolds.
The result we reach , however, is not a foregone conclusion. We are mindful , for
example, of the fact that the police did not know who Reynolds was at the time of the stop.
He just happened to be at the house of the homicide victim and, aside from observing that
he likely possessed a gun, there was no other evidence that he had engaged in criminal
conduct. We are also mindf ul that there were numerous officers present at the stop, with
at least three who had their guns drawn. Under other circumstances, this alone could be
enough to convert a stop from one permissible under Terry to an arrest requiring probable
cause. As can be discerned from the well-argued dissent, this is a close case. Nevertheless,
under the totality of the circumstances presente d here, we conclude that the officers’
actions were within the permissible zone of conduct allowed under established case
precedent for purposes of officer safety during a Terry stop.

14
The district court did not err in denying the motion to suppress the evidence of the
gun and we affirm the conviction.
Affirmed.

D-1
BRATVOLD, Judge (dissenting)
I respectfully dissent. I agree with the majority that law-enforcement officers
stopped Reynolds because they reasonably suspected he carried a firearm, and that this was
an investigative stop requiring less than probable cause. But Terry and over five decades
of caselaw require that a n investigative stop be reasonable in its scope, duration, and
intensity. Terry v. Ohio , 392 U.S. 1, 18, 88 S. Ct. 1868, 1878 (1968); State v. Smith ,
814 N.W.2d 346, 351 (Minn. 2012). While most Terry cases address the scope or duration
of a stop, a stop may violate the Fourth Amendment “by virtue of its intolerable
intensity . . . .” Terry, 392 U.S. at 18, 88 S. Ct. at 1878. Because the Terry stop here was
unreasonable in its intensity, it violated Reynolds’s Fourth Amendment right to be free of
unreasonable searches and seizures. Thus, I would grant the motion to suppress the
handgun on this basis and reverse the district court.
The United States and Minnesota Constitutions guarantee “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. I agree with the majority’s
thoughtful discussion of the Terry rule, as well as the determination that the officers had
reasonable suspicion to stop Reynolds for further investigation. Law enforcement may
conduct a Terry stop based solely on reasonable, articulable suspicion that a person is in
possession of a gun in public. State v. Timberlake, 744 N.W.2d 390, 396-97 (Minn. 2008).
Even though officers testified that Reynolds was not a “target” in the homicide
investigation, I agree with the majority that o fficers had reasonable, articulable suspicion
that Reynolds had what a special agent “believed to be a firearm.” The agent testified that

D-2
he “observed [Reynolds] sitting at the table 1 with what [he] thought appeared to be a
firearm at the time.”2 This is sufficient to allow a brief investigative stop under Timberlake.
“An initially valid stop may become invalid if it becomes ‘intolerable’ in its
‘intensity or scope.’” State v. Askerooth , 681 N.W.2d 353, 364 (Minn. 2004) (quoting
Terry, 392 U.S. at 17-18, 88 S. Ct. at 1868). In our review of Terry stops, we balance “the
nature and degree of the intrusion on an individual’s Fourth Amendment rights against the
governmental interest in crime prevention and legitimate concerns about the safety of
law-enforcement officers.” State v. Balenger , 667 N.W.2d 133, 139 (Minn. App. 2003) ,
review denied (Minn. Oct. 21, 2003); see also Askerooth, 681 N.W.2d at 365. “[I]t is the
state’s burden to show that a seizure was sufficiently limited to satisfy these conditions. ”
Askerooth, 681 N.W.2d at 365 (citing Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319,
1326 (1983) ). Balenger instructs that when we determine whether officer conduct
transformed an investigative stop into an unlawful arrest, we “must specifically consider
the aggressiveness of the police methods and the intrusiveness of the stop against the

1 On cross-examination, the agent corrected his testimony and said that he saw Reynolds
at the side of the house, and that there was no table.

2 The agent testified that he “couldn’t see a distinct firearm,” yet gave three reasons for his
belief that Reynolds was carrying a firearm. First, “[t]he way he was holding it,” because
Reynolds “wouldn’t take a hand off of it, which told me it was heavy enough that doing so
would make it cumbersome to move.” Second, the agent “could see it was black or dark in
color.” And third, “the way the fabric moved around, it made dist inct hard angles, telling
me it was a hard object.” The agent also testified that, based on his training and experience,
and “based on the size and shape of the object, that it was larger than a cell phone and
heavier than a cell phone.”

D-3
justification for the use of such tactics, i.e., whether the officer had sufficient basis to fear
for his or her safety.” 667 N.W.2d at 139 (emphasis added).
Caselaw following Terry also requires us to consider the totality of circumstances
when determining the reasonableness of a stop. State v. Martinson, 581 N.W.2d 846, 852
(Minn. 1998). As the majority notes, those non -exclusive factors include (1) the strength
of the officer’s articulable, objective suspicio ns when the person was seized ; (2) the
duration of the seizure; (3) the number of officers involved; and (4) the need for immediate
action by the officers and lack of opportunity for them to have made the stop under less
threatening circumstances. United States v. Sharpe , 470 U.S. 675, 686, 105 S. Ct. 1568,
1575 (1985) ; State v. Flowers, 734 N.W.2d 239, 253 (Minn. 2007) ; State v. Munson ,
594 N.W.2d 128, 137 -38 (Minn. 1999) . I would follow Balenger and add a fifth fac tor,
“the aggressiveness of the police methods,” to the majority’s nonexclusive list. See
Balenger, 667 N.W.2d at 139. Based on my review of the district court’s findings and this
record, the balance of these factors is wanting.
First, the officers’ suspic ion of Reynolds was particularly thin, based only on a
missing suspect and firearm from the homicide, Reynolds’s attendance at the wake for one
of the suspected robbers, the general fact that firearms are “easily moveable ,” and what
looked like a firearm in Reynolds’s sweatshirt.3 Well before the stop, officers confirmed

3 The officers did not have reason to suspect that Reynolds carried the missing firearm.
While the police sergeant testified that “one of the officers actually saw [the homicide
suspect] there,” the state produced no evidence or testimony that the suspect interacted with
Reynolds. The agent observed Reynolds “[o]ver a period of several minutes,” but did not
testify about any interaction between Reynolds and the suspect. The agent also did not
testify that he lost sight of Reynolds at any time. Thus, it was not reasonable to infer that

D-4
Reynolds was not a suspect in the homicide. Officers also agreed that Reynolds is not in
their gang-member database, although it is not clear when they learned this. And officers
conceded that they had no descriptive information about the missing firearm. They only
believed it was a semiautomatic firearm —either a handgun or possibly a long gun. Any
connection between the missing firearm and the firearm in Reynolds’ s possession was
conjecture, at best.
In fact, the officers’ suspicion of Reynolds appears to have stemmed from his
association with the wake. Minnesota has long rejected suspicion by “mere association” as
unreasonable. See State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998); see also State v.
Diede, 795 N.W.2d 836, 844 (Minn. 2011) (“Mere proximity to, or association with, a
person who may have previously engaged in criminal activity is not enough to support
reasonable suspicion.”). It is concerning that, while deciding to stop Reyn olds, a police
sergeant tied Reynolds to the homicide even though the sergeant confirmed that Reynolds
was not a suspect. The sergeant stated, “[i]f we think we saw a gun come out of his
waistband, we can articulate it enough with the crime that happened e arlier, I think we’re
good to stop him.”
The majority is correct that the sergeant testified that he decided to stop Reynolds
after he left the wake because he “felt like there was a high likelihood that there was
evidence from that homicide leaving in tha t vehicle.” But he also testified that this
likelihood rested on two things—“that there was a weapon involved, and [Reynolds was]

the suspect would have had the time or opportunity to hand the missing firearm to
Reynolds.

D-5
coming from that address associate d with the homicide .” (Emphasis added.) Thus, his
suspicion was particular to the wake and presumably included everyone in attendance. This
is simply too generalized and too prone to unwarranted bias to support reasonable
suspicion.
Turning to the second factor, I agree with the majority that the duration of the seizure
was objectively brief. The state’s brief to this court argues that the stop “was approximately
only five minutes in duration.” Even so, from the perspective of a young Black man, five
minutes at the end of four officers’ weapons may have felt like an eternity.
The state’s case fail s, however, on the third, fourth, and fifth factors —the number
of officers involved, the need for immediate action, and the aggressiveness of police tactics.
I am troubled that the district court made no findings about any of these factors. Based on
my review of one officer’s body -camera video, five police cars and five officers stopped
Reynolds—at least four of whom had weapons drawn. The state’s brief to this court states
the number of officers with weapons drawn: “Four officers executed a felony stop of the
vehicle with their weapons drawn.”4
The state offered little evidence of the need for immediate action and lack of
opportunity for the officers to stop Reynolds under less threatening circumstances. This
court should not second-guess law enforcement’s own assessment of the dangerousness of

4 The view that the officers remained by their squad cars with guns drawn is not persuasive
and is tentative, at best. The district court made no finding on this point and the record has
only one officer’s body-camera video. It is true that this particular officer drew her gun and
stayed by her squad car until after Reynolds was handcuffed. This fact, however, does not
affect the analysis: four officers wi th drawn weapons pointed at a suspect is a significant
show of force regardless of the officers’ distance from the suspect.

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a situation, and officers have a special insight based on their training and experience. See
Flowers, 734 N.W.2d at 251 -52. But it is concerning that the state did not offer any
evidence that police assessed the danger before making this stop, nor did the state establish
the need for an immediate stop with an overwhelming show of force. Our caselaw states
that “[i]f an officer making a reasonable investigatory stop has cause to believe that the
individual is armed, he is justified in proceeding cautiously with weapons ready.” State v.
O’Neill, 216 N.W.2d 822, 828 ( Minn. 1974) (emphasis added). Thus, the intensity of the
stop must be reasonable, or proportional, to the danger perceived. 5
The only information officers had about Reynolds was that he had attended the wake
of a homicide victim and probably had a handgun in his sweatshirt. As the majority notes,
“aside from observing that he likely possessed a gun, there was no other evidence that he
had engaged in any unlawfu l conduct.” Supra at 13. Under Timberlake and O’Neill, this

5 The importance of “proportionality” is borne out in the cases cited by the majority, supra
at 9 -10, to show officers may respond r easonably to safety concerns under particular
circumstances. See O’Neill, 216 N.W.2d at 828 (two officers informed that three suspects
shot out streetlights within previous half hour); State v. Ailport , 413 N.W.2d 140, 144
(Minn. App. 1987) (officers knew that appellant was armed, had a violent criminal history,
and observed furtive movements), review denied (Minn. Nov. 18, 1987). I am not
persuaded by caselaw discussing the scope of a Terry stop and search where officers knew
of appellant’s ongoing drug ac tivity and had personally seen drug sales at the premises,
although this caselaw also reflects that police response must be proportional to the danger.
See, e.g., State v. Bitterman, 232 N.W.2d 91, 93-94 (Minn. 1975) (officers recognized that
the defendant was a heavy heroin user and “knew” from their training and experience that
heroin users were often armed). I would not include Munson in this analysis because the
supreme court’s focus was on probable cause for the arrest of three vehicle occupants.
594 N.W.2d at 136 (“Specifically at issue are whether the police had probable cause to
search the Blazer and whether, even if probable cause to search the Blazer existed, the
scope of the search and the detention of Munson were unreasonable.”). In short, Bitterman
and Munson involve additional circumstances that distinguish these cases from Reynolds’s
circumstances.

D-7
was reasonable suspicion for one or two officers to stop Reynolds with weapons ready or
drawn. But it was not reasonable suspicion to conduct an immediate stop by five police
cars with five officers, four of whom had guns drawn from the outset. In short, the use of
a “felony stop” of this intensity when Reynolds was not suspected of a felony is deeply
concerning. Given these circumstances, the show of force used to detain Reynolds was
excessive.
Thus, based on the totality of the circumstances, I would conclude that the nature
and degree of intrusion into Reynolds’s Fourth Amendment rights was great. Reynolds was
stopped by five squad cars and five officers. At least four of the officers had weapons
drawn from the very outset of the stop. At gunpoint, officers ordered Reynolds out of his
vehicle with hands shown, commanded him to walk backward facing away from officers,
handcuffed him, and searched him. While I acknowledge that the officers had reaso nable
suspicion to stop Reynolds because they believed that he carried a handgun, I conclude that
the governmental interest in crime prevention was minimal. Reynolds’ s link to the
homicide was, as best, a justification bordering on “inchoate and unparticularized suspicion
or ‘hunch.’” See Terry, 392 U.S. at 27, 88 S. Ct. at 1883. Reynolds was decidedly not a
suspect in the homicide and was stopped because he carried a gun that might have been
used in the homicide. Balancing the grave intrusion into Reynold s’s Fourth Amendment
rights against the government’s limited interest in crime prevention and safety, I would
hold that the intensity of this stop exceeded the reasonable bounds of Terry.
For these reasons, I respectfully dissent and would reverse the district court’s order
denying suppression of the evidence seized during the stop. See, e.g., Diede, 795 N.W.2d

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at 842-46 (reversing district court’s denial of motion to suppress evidence because officer’s
search exceeded scope of investigatory stop and stemmed from appellant’s association with
suspected criminal).