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This opinion is nonprecedential except as provided by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
A20-0254

State of Minnesota,
Respondent,

vs.

Dillon Farkon Howard, Jr,
Appellant.

Filed February 8, 2021
Reversed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-18-22523

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

Michael O. Freeman, Hennepin County Attorney, Jacquelin e Bailey, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Jesson, Judge; and
Slieter, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Appellant Dillon Howard was driving a dirt bike without a headlight or a license
plate on city streets in north Minneapolis when he was stopped by police. What began as
a routine traffic stop quickly turned into a seizure, with Howard’s hands cuffed behind his

2
back and, shortly thereafter, the fanny pack draped across his chest searched. The pack
contained Howard’s ID, drugs, and a gun. The state charged Howard with possession of a
firearm or ammunition by a prohibited person.
In response to Howard’s subsequent mo tion to suppress eviden ce of the gun, the
district court ruled that handc uffing Howard was an illegal e xpansion of the traffic stop,
unjustified by reasonable suspicion. But th e district court concluded that Howard’s
“resistive” behavior after being handcuffed purged the taint of the officers’ illegal conduct
and denied Howard’s motion to suppress the gun. Howard appeals.
We conclude that the district court app lied the wrong legal standard when assessing
whether Howard’s behavior after the illegal seizure c onstituted an “intervening
circumstance” which purged the taint of the ille gal stop. Further, whether an intervening
circumstance occurred is only one of four factors we consider in assessing this suppression
issue. Based on our review of all the factor s—and applying the correct legal standard to
the facts found by the district court—we conclude the gun should have been suppressed as
“fruit of the poisonous tree.” Accordingly, we reverse.
FACTS
Below is a summary of the district cour t’s findings of facts derived from its order
denying Howard’s motion to suppress evidence , followed by a summary of the district
court proceedings.
During a routine patrol in north Minneapolis, two law enforcement officers spotted
appellant Dillon Howard driving a dirt bike along Penn Avenue. The bike was unlicensed,
did not have a headlight or taillight, and was not legal to drive on city streets. Concerned

3
that Howard might flee on his bike when st opped, the officers decided to stop him by
pulling in front of the bike. As the officers testified, it is their typical practice after stopping
the drivers of these types of vehicles to “just ID them, and you know, advise them to park
it . . . .”
The dirt bike then slowed and came to a stop near the squad car. The body-camera
footage (which the district court credited) shows that Howard neither backpedaled nor
looked around. When the first officer approached Howard, he either asked Howard for his
name or ID.
1 Howard immediately looked down at his chest and reached toward a fanny
pack on the upper-left side of his chest. Although the offi cers testified that Howard was
told many times to stop reaching and did not comply, the district court found that Howard
“was told not to reach and quickly complied with officers’ dema nds.” And when the
officers began to handcuff Howard, the district court found that the officers were able to
do so “without incident.”
After handcuffing Howard, the first office r moved him off his bike and toward the
squad car. Upon reaching the vehicle, the first officer su ddenly pushed Howard against
the side of the car. The offi cer yelled, “No, no. Don’t be f---ing reaching!” as he held
Howard against the car. Howard responded, “I’m just trying to get my ID, sir.” A moment
later, the officers took Howard to the ground as they yelled at him to stop reaching.
With Howard now on the gro und, the first officer yelled “Are you stupid?” and “You
want to be another statistic for being stupid ?” The second officer asked Howard why he

1 Although the first officer testified to only asking for Howard’s name, the second officer
reported that Howard was advised “of the reason for the stop and asked if he had an ID.”

4
had been reaching, to which he again responded that he was trying to get his ID. Backup
officers then arrived and assisted in getting Ho ward to his feet, removing his fanny pack,
and frisking him. A search of the fanny pack revealed a .380-caliber semiautomatic
handgun, some white pills, a baggie of mar ijuana, and Howard’s ID. Based on the
discovered gun, Howard was charged with possession of a firearm or ammunition by a
prohibited person.2
Before trial, Howard moved the district court to suppress the evidence found in his
fanny pack, alleging that the evidence had been tainted by the officers’ misconduct. At an
evidentiary hearing on the mo tion, the district court heard testimony from the officers
involved in the initial stop. Because the officers’ testimony “didn’t jive with the way the
video depicted [the first officer’s] a nger, his commands, [and] his comments,” and
“differed quite a bit” from th e body-camera footage, the di strict court did not find the
officers’ testimony credible. Based on that credibility determin ation and the facts
summarized above, the district court found th at the officers impermissibly expanded the
scope of the stop when they handcuffed Howard.
Nevertheless, the district court concluded that Howard’s “erratic, resistive behavior”
upon being handcuffed created independent jus tification to search Howard and his fanny
pack. Citing Terry v. Ohio, the district court determined that the officers had reason to be
concerned for their safety, wh ich was reasonable under the circumstances, and therefore
could search Howard for weapons. 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968) (holding

2 Minn. Stat. § 624.713, subd. 1(2) (2018 ). Howard was previo usly convicted of
fourth-degree assault.

5
that police may conduct a limited warrantle ss search of a person for weapons when “a
reasonably prudent man in the circumstances would be warrant ed in the belief that his
safety or that of others was in danger”). Ac cordingly, the district court found that the
discovery of the gun was lawful and denied Howard’s motion to suppress.
Following a stipulated-facts hearing, th e district court convicted Howard of
possession of a firearm or ammunition by a prohibited person. Minn. Stat. § 624.713,
subd. 1(2). But because this was Howard’s first gun convic tion and he was particularly
amenable to probation, and because of the officers’ conduct during the stop, the district
court granted a downward dispositional departure. 3 The district court sentenced Howard
to 60 months’ incarceration, bu t stayed the sentence for five years’ supervised probation
with conditions.
Howard appeals the district court’ s denial of his motion to suppress.
DECISION
Howard appeals from his conviction by arguing that the district court’s denial of his
motion to suppress was in error. Here, no party challenge s the district court’s pretrial
factual findings, which we would review for clear error. State v. Gauster, 752 N.W.2d 496,
502 (Minn. 2008). And we review de novo the district court’s legal conclusions regarding
a motion to suppress. Id.

3 According to the sentencing tr anscript, the district court f ound the officers’ conduct so
concerning it contacted the Minneapolis Chief of Police to inform him of their actions
during the stop.

6
We begin our de novo review with the observation that Howard does not contest the
initial stop. Nor does the stat e contest the district court’s holding that officers
impermissibly expanded the scope of that stop by handcuffi ng Howard. These positions
are grounded in the Unite d States and Minnesota Co nstitutions which prohibit
unreasonable searches and seizures. U.S. Cons t. amend. IV; Minn. Const. art. I, § 10.
Generally, a seizure conducted without a warrant is per se unreasonable. State v. Burbach,
706 N.W.2d 484, 488 (Minn. 20 05). But an officer may c onduct a limited investigatory
traffic stop if (1) the stop is justified at its inception; and (2) the officer’s actions are
reasonably related to and justified by the circ umstances that gave rise to the stop.
State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004).
Here, the absence of a headlight and a licen se plate on a dirt bike driven on a city
street provided justification for a limited traffic stop. But the district court concluded that
no justification stood behind the officers’ ac t to expand the stop by handcuffing Howard,
which amounted to a seizure. No reasonable suspicion existed that Howard was involved
in other criminal activity or armed and dangerous at the moment he was handcuffed.4
Which brings us to th e question before us: base d upon this unconstitutional
expanded stop, did the district court err in allowing evidence of the handgun during
Howard’s trial? Typically, evidence that “would not have come to light but for the illegal
actions of the police” is excluded from evid ence as “fruit of the poisonous tree.” Wong

4 We further observe that for suspected petty misdemeanors, such as operating a vehicle
without a headlight or license plate, officers deciding to prosecute the individual “ must
issue a citation and release the defendant.” Minn. R. Crim. P. 6.01 (emphasis added); see
also Minn. Stat. § 169.89, subd. 1 (2018).

7
Sun v. United States , 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963). The reason for this
exclusionary rule? Deterrence. To dete r misconduct by law enforcement officers.
State v. Lindquist, 869 N.W.2d 863, 868-69 (Minn. 2015) (“Although the Court has noted
other purposes of the exclusionary rule, deterring police miscondu ct has become its
touchstone.”); see also Davis v. United States , 564 U.S. 229, 236, 131 S. Ct. 2419, 2426
(2011) (“The [exclusionary] rule’s sole purpose, we have repeatedly held, is to deter future
Fourth Amendment violations.”). This exclusionary rule is not ironclad. But once illegal
actions by police are established—as they are here—the burden is on the state to prove that
the evidence later obtained was “purged of the primary taint.” Wong Sun, 371 U.S. at 488,
83 S. Ct. at 417.
Our de novo review of whether the ensuing search of the fanny pack, yielding a gun,
was purged of the underlying illegal police c onduct is guided by fo ur factors. We
weigh: (1) the purpose and flagrancy of the misconduct; (2) the temporal proximity
between the misconduct and the discovery of the evidence in question; (3) the likelihood
that the evidence would have been found despite the misconduct; and (4) whether any
intervening circumstances occurred to purge the taint of the misconduct. State v. Sickels,
275 N.W.2d 809, 814 (Minn. 1979). We consider these factors in light of the state’s burden
to prove that the evidence in question was obtained in a way “sufficiently distinguishable”
from the misconduct. Wong Sun, 371 U.S. at 488, 83 S. Ct. at 417. But no one factor is
dispositive—all must be weighed. Sickels, 275 N.W.2d at 814.
Here, the purpose of the misconduct was not related to the initial traffic stop. Id.
And only brief minutes separated Howard’s seizure and the discovery of the gun. A short

8
period of time between the misc onduct and the discovery of evidence further weighs in
favor of suppression. Id. Furthermore, although it is im possible to know with certainty
whether the gun would have been found without the impermissible expansion of the stop,
it appears possible that the officers might never have seen it. Not only was it dark during
the stop, Howard’s ID was located in a sepa rate pocket of his fanny pack, away from the
gun. Our de novo review of these first three factors, we observe, aligns with the analysis
of the district court: all favor suppression of the gun.
The fourth factor lies at th e heart of this analysis. Was Howard’s “erratic, resistive
behavior” after being handcuffed an intervening circumstance? We begin our analysis with
the foundational premise that the exclusionary rule is designed to deter police misconduct,
but not to embolden those subjec t to an illegal arrest to physi cally attack officers or to
commit new crimes. 6 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth
Amendment § 11.4(j) (6th ed. 2020). As a result, evidence discovered “after the intervening
circumstances of a new crime” is generally admissible. Id. (emphasis omitted) (quotations
omitted).
Applying this logic in the seminal case of State v. Ingram , this court addressed a
situation where, after officers conducted an illegal stop of defendant and sought to frisk
him, the defendant darted away from the bus shelter, pushing the officer away in the
process. 570 N.W.2d 173, 178 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997).
The question before the court: did these actions constitute new and intervening facts
sufficient to justify the subs equent pursuit and arrest of the defendant? Our court,
beginning with the statement that “evidence of a crime committed in response to an illegal

9
police arrest or search is not suppressed as the fruit of the prior illegality,” concluded they
did. Id. Resisting arrest and fleeing police, we held, stood in contrast to more predictable
actions like the disposal of incriminating evidence. Id.; see also State v. Balduc ,
514 N.W.2d 607, 611 (Minn. App. 1994) (d escribing the disposal of incriminating
evidence as a “predictable and common response” to an illegal search).
We now take the question posed in Ingram and apply it to the case before us: where
does Howard’s “erratic, resistive behavior” fall on the spectrum of behavior between
evidence of a crime (like resisting arrest or fleeing) and a “predictable response” to an
illegal seizure?
Here, we conclude that the state has not met its burden to demonstrate that Howard’s
behavior after being handcuffed rose to the level of an intervening circumstance as set out
by Ingram and other controlling precedent. In resistive behavior—with his hands in cuffs
behind his back—Howard sought to reach the fanny pack on his chest. Certainly, Howard
was not fleeing officers, after pushing them aside, as in Ingram. And this behavior is a far
cry from the assaultive acts towards officers which Minnesota courts have concluded
constitutes an otherwise “int ervening circumstance.” See, e.g., State v. Kittleson ,
305 N.W.2d 787, 789 (Minn. 1981) (appellant pointed a gun at an officer who had entered
the room to investigate a call on an assault with a dangerous weapon); State v. Bale ,
267 N.W.2d 730, 731 (Minn. 1978) (appellant pointed a pistol at the arresting officer
before engaging in a “s cuffle” with the officer); State v. Combs , 392 N.W.2d 567, 569
(Minn. App. 1986), rev’d in part on other grounds , 398 N.W.2d 563 (Minn. 1987)
(arresting officer’s arm beca me trapped in a car window when appellant rolled up the

10
window and attempted to flee). Nor is State v. Olson, as the state suggests, to the contrary.
634 N.W.2d 224 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). There, the
defendant’s “twisting and turning,” which resu lted in a subsequent charge of obstruction
of legal process, “went beyond an ordinary , predictable” response to an illegal stop. Id.
at 230. We observe that in Olson, appellant did not dispute th at his actions established
probable cause to arrest him for obstruction of legal proce ss, whereas here, Howard was
never charged with a crime such as resisting arrest (or obstruction of legal process) based
upon his behavior towards police. And while we are mindful that a lack of such charges is
not dispositive,5 the state did not even argue to the district court that Howard’s actions rose
to the level of a criminal offense.6
Further, these “resistive behaviors” right after being handcuffed, must be examined
in light of Howard’s overall reactions during the stop. As the district court found, Howard
was cooperative and quick to comply with the officers’ co mmands throughout the stop.
When the interaction first began, Howard “qui ckly complied” when to ld not to reach for

5 Ingram, 570 N.W.2d at 179 (stating that under the specific facts in Ingram’s case, it was
“immaterial whether Ingram was charged with a ssault of a police officer, resisting arrest,
or obstructing legal process”).
6 On appeal, the state now argues that Howard’s actions amounted to obstruction of legal
process. While the state can raise alterna tive arguments on appeal in defense of an
underlying decision when there are sufficient fact s in the record for the appellate court to
consider the alternative theories, State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003), given
the lack of factual development before the district court, the facts to support this argument
are sorely lacking. For reasons similar to the ones which lead us to conclude that Howard’s
behavior did not clearly rise to the level of an intervening circumstance, we do not view
the facts before us as establishing obstructi on of legal process. His resistive behaviors
(particularly given that his ha nds were cuffed behind his back during this short period of
time) did not have the effect of substantially frustrating or hindering officers in the
performance of their duties. Minn. Stat. § 609.50, subd. 1(a)-(b) (2018).

11
his fanny pack and “immediately paused and stopped attempting to access the contents of
his fanny pack.” When the officers then moved to detain Howard, he “allowed officers to
almost immediately guide his ha nds behind his back to be ha ndcuffed without incident.”
There were no guns pointed at officers. No fight s. No attempts to flee. In sum, when
placed on the spectrum of behavior (evidenc e of a subsequent cr ime at one end and
“predictable response” to an illegal seizure on the other) Howard’s behaviors were more
akin to a predictable response to an illegal seizure rather than a new criminal act.
In concluding otherwise—that Howard’s behavior clearly created an intervening
circumstance—the district court applied the standard established in Terry, which assesses
whether an officer can search an individual for weapons during a stop. 392 U.S. at 24-27,
88 S. Ct. at 1881-83. And if after a legal stop, Howard then engage d in these “erratic,
resistive behaviors,” Terry could well provide authority for the officers to frisk Howard for
weapons. State v. Payne, 406 N.W.2d 511, 513 (Minn. 1987) (“An officer may conduct a
limited protective weapons frisk of a lawfully stopped person.” (emphasis added)). 7 But
that is not the case before us. 8 To analyze whether the state proved an intervening

7 We observe that even if Terry provided a rationale for a frisk for weapons, the search of
the fanny pack took place (accordi ng to the district court’s f actual findings) after it was
removed from Howard’s chest. This distin ction, however, was not raised by counsel and
we decline to address it here.
8 We reiterate that while the initial traffic stop was justified, the handcuffing of Howard
was an illegal expansion of that stop, unju stified by reasonable su spicion of additional
circumstances. The state cites no precedent for the proposition that the authority of Terry
for a “frisk” extends to a situation following an unlawful expanded search. Nor have we
found that authority in Minnesota law.

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circumstance which removed the taint of ille gal police conduct by reference to the Terry
standard was error.
Applying the correct legal standard set forth in our precedent, and based on the
district court’s factual findings, we conclude that Howard’s actions were not sufficient
intervening circumstances to purge the taint of the officers’ impermissible expansion of the
stop. At most, Howard’s actions, given the circumstances as a whol e, render the fourth
“intervening circumstances” factor neutral. These actions certainly do not “tip the scales
heavily” toward suppression as the district court concluded. And we do not consider this
factor in a vacuum. When we weigh—as we must—the intervening circumstances factor
with the first three factors, all of which favor suppression, the gun should have been
excluded from evidence. Again, the purpose of the exclusionary rule is to deter police
misconduct. Deterrence is called for here.
In sum, our de novo review regarding wh ether the search of the fanny pack was
purged of the undisputed illegal police misconduct—balancing all four relevant factors—
leads us to conclude the district court e rred in denying Howard’s motion to suppress
evidence of the gun as fruit of the illegal expanded stop.
Reversed.