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This opinion is nonprecedential except as provided by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
A20-0558

State of Minnesota,
Respondent,

vs.

Ezekiel John Miller,
Appellant.

Filed April 19, 2021
Reversed
Gaïtas, Judge
Concurring in part, dissenting in part, Larkin, Judge

Ramsey County District Court
File No. 62-CR-19-5753

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

John J. Choi, Ramsey County Attorney, Thom as R. Ragatz, Assist ant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Laura Geyer Heinrich, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Larkin, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Ezekiel John M iller was convicted of aggrav ated robbery and unlawful
possession of a firearm following a stipulated-e vidence court trial to preserve dispositive

2
issues for appeal. He now appeals his convic tions, challenging the district court’s denial
of his motion to suppress evidence obtained from an unlawful seizure and his motion to
exclude suggestive eyewitness identifications. Because we conclude that officers
unreasonably seized Miller when they detained him for 27 minutes in the back of their
moving squad car, we reverse.
FACTS1
In August 2019, M.B. and M.V., a young co uple, went to a St. Paul gas station in
the middle of the afternoon to sell a gaming system to a buyer they had connected with
online. While there, they were robbed at gunpoint by the purported buyer.
The buyer—a man who appeared to be in his mid-20s to mid-30s—spoke with M.B.
and M.V. in the gas-station parking lot for about four minutes before robbing them. During
their conversation, a few juveniles who seemed to know the buyer approached and then
walked away. At the end of the four-minute encounter, the buyer pulled out a gun, pointed
it at M.B. and M.V., took M.B.’s bag, and ran away. M.V. chased the robber, and, while
he did so, the juveniles approached M.B. a nd one of them stole her cellphone. M.B.
contacted 911, and officers were immediately dispatched to the scene.

1 Our summary of the facts comes from the district court record of the evidentiary hearing
on Miller’s motion to suppress and exclude evidence. This record evidence includes officer
testimony and exhibits, including extensive squad-car- and body-worn-camera footage.

3
Police encounter with Miller
Shortly after the robberies, Miller entere d a store a few blocks away from the gas
station declaring that he had just been robbed. Someone in the store2 called the police, and
two St. Paul Police officers, referred to here as Officer A and Officer B, responded to the
call. These two officers were already awar e of the gas-station robbery when they
responded to the store because a large team of officers was looking for the suspects and
had established a perimeter.
When the officers entered th e store, they asked an employee if someone had been
robbed, and the employee directed them to Miller. They approached Miller and asked what
had happened. Miller told the officers that “a bunch of guys” had come running at him and
had pushed him to the ground. Officer A asked if the guys took anything from Miller, and
Miller replied that they tried but were unsuccessful. He said that he was able to get up and
run and that the guys who pushed him kept running. The officers asked Miller for
identification, and Miller handed them a tem porary license. They also asked if Miller
would be able to recognize the guys that pushed him, and he replied that he would.
Miller then told the officer s that he was waiting on a car from a ride-share service,
and asked if he could make a phone call. Of ficer A replied that there was no car outside
when they arrived and asked if the address on Miller’s identification was current. Miller
replied that it was not and provided a different address. Miller then answered an incoming

2 The record from the suppression hearing does not clearly establish who called the police,
but it appears to suggest that a store employee was the caller, as the officers indicate in
video footage that they were responding to a “suspicious call” and a store employee at the
front counter directed them, upon their arrival, to the person claiming to be robbed.

4
call and told the person on the other end that he was talking to the police about the people
who tried to rob him and that he was waiting on the ride-share car. Officer A continued to
ask Miller about the people who had pushed him, and Miller told him that they were two
Black males and that one was wearing all red and the other was wearing tan shorts and a
white or gray shirt. Miller then asked if he could check on his ride-share car, and Officer
A replied, “Yeah, we can go walk outside for a second.” Officer A and Miller proceeded
out of the store together.
Miller’s ride-share car was waiting outside. He thanked Officer A and attempted to
walk to the car, but the officer responded, “G ive me one second. Let me just check with
my partner, we might have you identify these gu ys.” Miller replied that he needed to get
going because he had a meeting and wanted to get to the trai n station. Officer A stated
“Okay,” and asked “so y ou can’t hang out and do that then ?” Miller responded that the
officers had his phone number and could call him, or that he could come back later. Officer
A indicated that would be fine, telling Miller “you’re good to go.” At that moment, though,
Officer B, who was still in the store, came out . Officer B, observing Miller preparing to
leave, exclaimed “no, no, no, no, you’re coming with us! We’re going to probably do a
show-up.” Officer A then reversed course and agreed, explaining to Miller that they needed
him “to do a show up to . . . to get these guys.” By this time, the officers had been speaking
with Miller for almost five minutes.
Miller, who was standing by the open door of the car, objected again, stating “Sir, I
really gotta go. I really gotta go.” Officer B replied, “We really need your help, so you’re
coming so . . . you’re coming with us. We ne ed you to I.D. someb ody. They’re wanted

5
for a robbery.” Miller asked if the officers could bring the suspects to the store, and Officer
B replied that they had to bring Miller to them. Additionally, Mill er expressed concern
that the suspects would see him, but the officers explained th at he would not be visible
from the back of the squad car. As Officer A continued to reassure Miller, noting that the
identifications would not take long, they walked towards the squad car, which was parked
right in front of the ride-share car.
As they walked to the s quad car, Miller handed his cellphone to Officer A to speak
with the person who had called Miller earlier and was still on the line. Officer A spoke
briefly with the caller, who identified himself as Miller’s “mentor” and gave the officer his
number before ending the call. Officer A then opened the door to th e back of the squad
car for Miller, again assuring hi m that it would not take long to identify the guys who
robbed him and emphasizing that they did not want anyone else to get robbed.
The officers did not search Miller before he got in the squad ca r. Officer A later
testified that the officers did not search him because they believed he was a victim; he was
not a suspect for the gas-station robbery in their minds. At the time, the officers believed
the robbers from the gas station had also attempted to rob Miller.
With Miller in the backseat of the s quad car, the officers drove around for
approximately 27 minutes. They initially drove a few blocks to where other officers had a
suspect in custody and asked Miller whether that suspect had knocked him down. Miller
positively identified the suspect, stating that he was 100% certain about his identification.
The officers showed Miller two other people he did not recognize. Then, they told Miller

6
he had been “a big help” and as ked where he wanted to go. He gave them the address of
his meeting, and they proceeded in that direction.
When the squad car neared Miller’s meeting location, the officers received notice
from dispatch about another susp ect in custody. They turned around to take Miller back
for another identification. Miller objected, telling the officers that he really needed to get
to his meeting. The officers reiterated that Miller had been a huge help, and, when Miller
asked to charge his phone, willingly plugged it in for him. When they arrived for the show-
up involving a fourth suspect, Miller stated he did not re cognize the individual. The
officers again began to drive Miller back to his meeting location.
Just as they were again nearing that loca tion, the officers received a photograph on
their computer from a closed-c ircuit television (CCTV) camer a at the gas station that
reportedly showed the person who robbed M.B. and M.V. at gunpoint. The officers showed
the photograph to Miller and as ked if he recognized the person. Miller replied that the
person in the photograph looked like him, and the officers brushed off this comment and
laughed. However, as the officers pulled up to the meeting location and took a closer look
at the photograph, they realized that the pe rson in the photo was wearing the exact same
clothing as Miller—both wore khaki shorts and a distinctive shirt that was gray on the torso
area, with red sleeves and a big front logo. The officers removed Miller from the squad
car, conducted a pat search, and handcuffed him. During the search, they found a small
handgun in Miller’s pocket.

7
Officers A and B remained where they were with Miller until other officers brought
M.B. and M.V. for a show-up. M.B. and M.V. positively id entified Miller as the person
who robbed them at gunpoint, and the officers took him into custody.
M.B. and M.V.’s iden tification of Miller
While Officers A and B were driving Mille r to various sites for show-ups, other
officers did the same with M.B. and M.V.
After M.B. had contacted 911, an officer arrived but spoke with M.B. only briefly
before the officer left on foot to chase suspects possibly heading into an alleyway. Before
the foot pursuit, M.B. told the officer that a man had robbed her at gunpoint, that a girl took
her phone, and that the girl who took her phone was with a group of people including a
male wearing all red.
Shortly after the first officer left, another officer, referred to here as Officer C, and
his partner arrived at the gas station to meet with M.B. and M.V. and bring them to show-
ups of potential suspects. M. B. and M.V. got into the back of Officer C’s squad car, and
the officer asked whether they could identify the person who r obbed them with the gun.
Both replied that they could. When asked to describe the person with the gun, they
described him as “Black” and “taller,” and M.V. said that he was “heavier set” and had
“jagged teeth.” M.B. added that the suspect ha d a hat and that his shirt was “gray, khaki,
it was mixed colors I’m pretty sure.” When pressed, she stated that she was not sure about
the specific shirt color.
When asked about the robber’s pants, M. V. responded that the robber was wearing
full-length pants. Together, M.B. and M.V. estimated that the robber’s age was between

8
mid-20s and 35. They described the gun as small, almost “mini,” silver, and perhaps a
“handheld .22.” M.B. and M.V. said that th e robber pointed the gun at both of them, and
that M.V. chased the robber for a few blocks before he lost track of him and came back to
the gas station.
Over the course of about an hour, Officer C and his partner showed M.B. and M.V.
multiple suspects. M.B. and M.V. identified a few people as members of the group that
had been in the parking lot, but were also shown multiple pe ople who they said were not
part of the group. All of M.B.’s and M.V.’s responses were quick, confident, and nearly
simultaneous. M.B. in particular maintained a confident tone throughout the identification
process.
About 30 minutes into the process, the officers received a CCTV photograph from
the gas station showing a person in the park ing lot. When shown the photograph, both
M.B. and M.V. immediately exclaimed “that’s him!” and then confirmed that the person
in the photo was the robber with the gun. Officer C then relayed to dispatch through police
radio that the person in the CCTV photograph was “the guy with the gun.”
During the drive, communications from disp atch were broadcast through the police
radio into the squad car. Several minutes af ter M.B. and M.V.’s identification of the
robber, dispatch announced th at a suspect was in custody and a gun had been recovered.
Officer C responded to this information with “sounds like they’ve got the guy,” and, shortly
thereafter, told M.B. and M.V. “We’re going to go over there and ID him okay? The guy
that had the gun.” Officer C’s partner then relayed to other officers, “They’ve got the guy,
we’re going to do a show-up over there. They’ve got the guy and the gun.”

9
As Officer C and his partner transported M.B. and M.V. to th e show-up involving
Miller, they discussed how other officers had the suspect in custody but did not initially
know it. When they arrived at the show-up site, M.B. confidently stated without hesitation:
“that’s the guy who robbed us at gun point,” and M.V. agreed.
Officer C later testified th at police officers do not ordi narily interview witnesses
together because they do not want the witnesses to influence each other. He confirmed that
the same principle applies to show-up identifications, wh ere witnesses are typically
separated. He also confirmed that Miller was standing outside a s quad car in handcuffs
when M.B. and M.V. were asked whether they could identify him.
Proceedings in this case
The state charged Miller with four felony counts: first-degree aggravated robbery,
Minnesota Statutes section 6 09.245, subdivision 1 (2018) (c ount one); prohibited person
in possession of a firearm, Minnesota Statutes section 624.713, su bdivision 2(b) (2018)
(count two); prohibited person in possession of ammunition, Minnesota Statutes section
624.713, subdivision 2(b) (c ount three); and second-degree assault with a dangerous
weapon, Minnesota Statutes section 609.222, subdivision 1 (2018) (count four). Miller
moved to suppress any evidence obtained as a result of an unlawful seizure and to exclude
M.B. and M.V.’s show-up identifications, along with any potential in-court identifications,
as violations of due process. The district court held an evidentiary hearing on the motions.
After the hearing, the district court issued an order denying Miller’s motions.
Following the district court’s order, the pa rties agreed to proceed with a stipulated-
evidence court trial pursuant to rule 26.01, s ubdivision 4(a), of the Minnesota Rules of

10
Criminal Procedure, which allows a defendant to preserve a dispositive pretrial ruling on a
specific issue for appellate review. The st ate dismissed counts two and four, and Miller
submitted the issue of his guilt on counts one and three to the district court based on
stipulated evidence. The district court foun d Miller guilty of both counts and sentenced
him to concurrent prison terms of 84 months3 for count one and 60 months for count three.
This appeal follows.
DECISION
Miller argues that his convictions must be reversed on two independent bases. First,
he contends that the district court erred in denying his motion to suppress the evidence
stemming from the officers’ seizure of his pers on. Miller claims that the officers seized
him in violation of the Minnesota Constitution when they ordered him to participate in their
investigation and confined him in the back of their moving squad car for approximately 27
minutes. Second, Miller challenges the district court’s denial of his motion to exclude any
evidence showing that M.B. and M.V. iden tified him as the robber during a show-up
identification procedure. He argues that the show-up was unnece ssarily suggestive and
violated his constitutional right to due process. The state disputes that any constitutional
violation occurred and argues that, even if it did, Miller’s convictions need not be reversed.
We address each issue in turn.

3 Miller’s 84-month sentence for first-degr ee aggravated robbery was a downward
durational departure from the sentencing guide lines by agreement of the parties based on
the fact that the offense was less serious than a typical such offense.

11
I. The officers’ detention of M iller in the back of their moving squad car for 27
minutes over his objections was an unreasonable seizure under the Minnesota
Constitution.

The Minnesota Constitution, like the United States Constitu tion, guarantees “[t]he
right of the people to be secure in their persons, houses, papers , and effects against
unreasonable searches and seizures.” Minn. Const. art. I, § 10; see U.S. Const. amend. IV.
This constitutional protection recognizes “the in terests of ordinary c itizens in not having
their privacy or their freedom of movement interfered with by police investigators who do
not have any reason to suspect them of wrongdoing.” Ascher v. Comm’r of Pub. Safety,
519 N.W.2d 183, 186 (Minn. 19 94). If police officers seize a person, and that seizure is
not constitutionally reasonable, all evidence obtained as a result of the seizure is subject to
suppression in a criminal trial. State v. Harris, 590 N.W.2d 90, 99 (Minn. 1999); see also
In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993) (explaining that “any evidence
that is the fruit of the [unlawful] seizure is suppressible”).
Here, the district court held that Officers A and B seized Miller when they removed
him from their squad car and handcuffed hi m approximately 30 minutes into their
encounter. The district court further conc luded that the seizur e was constitutionally
permissible because, at that point, the office rs reasonably suspected that Miller was the
robber.
Miller argues that the seizure occurred much earlier in the encounter. He contends
that the police initially seized hi m when they told him that he needed to come with them
and directed him to sit in the back of their squad car. And according to Miller, because the
officers did not suspect he was involved in a ny crime when they ordered him into their

12
squad car, the seizure was unreasonable and violated his rights under the Minnesota
Constitution.
In considering a challenge to a district c ourt’s pretrial ruling on a motion to suppress
evidence, the appellate court reviews fa ctual findings for clear error and legal
determinations de novo. State v. Diede, 795 N.W.2d 836, 849 (M inn. 2011). If the facts
are not in dispute, appellate courts appl y de novo review to examine whether an
unreasonable seizure occurred. State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005).
In reviewing the district court’s order he re, we first determine when the officers
seized Miller. Then, we consider whether the seizure was reasonable.
A. The officers seized Miller when th ey stopped him fr om leaving and
directed him into the back of their squad car.

A seizure occurs “when [an] officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen.” E.D.J., 502 N.W.2d at 781
(quoting Terry v. Ohio , 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n. 16 (1968)). To
determine whether a person has been seized within the meani ng of the Minnesota
Constitution, reviewing courts examine whether, “in view of all of the circumstances
surrounding the incident, a reasonable person would have believed th at he or she was
neither free to disregard the police questions nor free to terminate the encounter.” State v.
Cripps, 533 N.W.2d 388, 391 (Minn. 1995); see also E.D.J., 502 N.W.2d at 780.4

4 The United States Supreme Court held in California v. Hodari D. that a seizure occurs
under the Fourth Amendment when the police use physical force or a person submits to a
police show of authority. 499 U.S. 621, 626, 111 S. Ct. 1547, 1551 (1991). Our supreme
court has expressly declined to follow the Hodari D. holding when interpreting the
Minnesota Constitution, concluding that the Minnesota Constitution affords more

13
The following circumstances suggest a seizure: “the threatening presence of several
officers, the display of a weapon by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that compliance with the officer’s
request might be compelled.” Harris, 590 N.W.2d at 98 (quotations omitted). Absent
these circumstances or some similar show of authority, “o therwise inoffensive contact
between a member of the public and the police cannot, as a matter of law, amount to a
seizure of that person.” E.D.J., 502 N.W.2d at 781 (quoting Mendenhall, 446 U.S. at 554-
55, 100 S. Ct. at 1877).
The district court conclude d that a reasonable person in Miller’s situation would
have felt free to terminate th e encounter, emphasizing the officers’ “exceedingly polite
tone” and their willingness to charge Miller’s cell phone in their squad car. Additionally,
the district court noted that Miller was not a crime suspect when he entered the squad car;
rather, he was a purported crime victim who had sought police assistance.5

protection than the Unite d States Constitution. E.D.J., 502 N.W.2d at 783. Instead, our
supreme court endorsed the Mendenhall-Royer test for a seizure, derived from two United
States Supreme Court opinions that predate Hodari D., which asks whether “a reasonable
person would have believed that because of the conduct of the police he was not free to
leave.” Id.; see Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1323-24 (1983);
United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980).

5 To the extent that the district court made a factual finding that Miller initiated contact
with the police, that finding is not supported by the record and appears to be clearly
erroneous. The record from th e suppression hearing does not contain a transcript of the
911 call to which the officers responded, but the body-worn-camera footage indicates that
a store employee, rather than Miller, called the police to report “suspicious” activity.

14
Miller directs us to the officers’ explicit statements—“no, no, no, no, you’re coming
with us!” He also points out that despite hi s repeated efforts to terminate the encounter,
the officers insisted that he come with them.
Notably, the state takes no position on appeal regarding the timing of the seizure.
Instead, as discussed below, the state argue s that even if a seizure occurred, it was
reasonable under the circumstances.6
Our careful review of the record, which includes body-worn-camera and squad-car-
camera footage of the entire encounter, convinces us that no reasonable person in Miller’s
position would have felt free to terminate the encounte r and disregard the officers’
instructions that he was “coming with [them].” Indeed, Miller initia lly tried to terminate
the encounter, but he was unsuccessful. When he attempted to leave by opening the door
of his ride-share car, Officer B stopped him by firmly exclai ming “no, no, no, no, you’re
coming with us. We’re going to probably do a sh ow-up.” Miller objected, emphasizing
that he “really [had to] go,” but Officer B insisted: “We rea lly need your help, so you’re
coming . . . you’re coming with us.” The o fficers then walked Miller to their squad car,
which was parked right in front of Miller’s ride-share car.
That the officers used a polite tone with Miller, did not physically touch him, and
did not brandish their weapons did not transform the situation into a voluntary encounter.
See Harris, 590 N.W.2d at 98. We have previously observed that seizures can occur when

6 In the district court, the state took the opposite approach, arguing that the seizure occurred
when the officers handcuffed Mi ller. The state made no alternative argument about the
reasonableness of the officers’ earlier conduct.

15
police “summon” a person—as in State v. Day where we held that “the summoning by [a]
police officer, who was in uniform and armed, requiring appellant to approach the officer’s
squad car to provide identification and to re spond to questioning, constitute[d] a restraint
and seizure” subject to constitu tional protections. 461 N.W. 2d 404, 407 (Minn. App.
1990), review denied (Minn. Dec. 20, 1990). Here, Miller was not only asked to approach
the squad car, but was directed to get into the squad car. The officers outnumbered Miller
two to one. And their squad car was positio ned in front of Miller’s ride. Moreover, no
matter how “polite” the officers were here, we cannot overlook the dynamic that exists
when police officers interact with a young Black man. Cf. Harris, 590 N.W.2d at 106
(Page, J., dissenting) (noting, in the contex t of an encounter betw een two police officers
and a “young African-American male,” that “[t]he reality of the world is such that a person
in [the defendant’s] position would likely feel compelled to comply with the police
officers’ requests”).
In view of all of these circumstances, a reasonable person in Miller’s position would
not have felt free to ignore the police instructions and end the encounter. We accordingly
conclude that Miller was seized within th e meaning of the Minnesota Constitution when
the officers stopped him from leaving and directed him into their squad car.
B. The seizure was not constitutionally reasonable.
The next step in analyzing the officers’ detention of Miller is to determine whether
the seizure comported with the constituti onal requirement of reasonableness. See Minn.
Const. art. I, § 10. Initially, we note that the district court did not consider the
reasonableness of the seizure that we have identified because it concluded that Miller was

16
seized later in the encounter. Although questions that a dist rict court did not decide are
generally not amenable to appellate review, the supreme court has held that “[a] respondent
can raise alternative arguments on appeal in defense of the underlying decision when there
are sufficient facts in the record for the appellate court to consider the alternative theories,
there is legal support for the arguments, and the alternative grounds would not expand the
relief previously granted.” State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003); see also
Minn. R. Crim. P. 28.02, subd. 11 (stating th at “[o]n appeal from a judgment, the court
may review any order or ruling of the district court or any other matter, as the interests of
justice require”). Neither party requests a remand to the district court, and the parties have
briefed the issue of reasonableness. Moreover, the record is sufficiently developed for our
review. We thus consider the issue in the interests of justice and judicial efficiency.
1. Warrantless seizures are ge nerally unreasonable unless a
warrant-requirement exception applies.

Again, the Minnesota Constitution prohibits unreasonable seizures. Minn. Const.
art. I, § 10. Constitutional prohibitions on unreasonable searches and seizures are designed
“to prevent arbitrary and oppressive interference by enforcement officials with the privacy
and personal security of individuals.” Wold v. State, 430 N.W.2d 171, 174 (Minn. 1988)
(quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S. Ct. 3074, 3081 (1976)).
As a general rule, warrantless searches and se izures of persons are per se unreasonable.
Id.; see State v. Horst, 880 N.W.2d 24, 33 (Minn. 2016). When police officers search or
seize a citizen without a warrant, “[t]he state bears the burden of establishing an exception
to the warrant requirement” to justify their actions. State v. Ture, 632 N.W.2d 621, 627

17
(Minn. 2001). Because the po lice seized Miller without a warrant, we consider whether
the state established that an exception to the warrant requirement applied.
2. The officers did not have reason able, articulable suspicion of
criminal activity to justify a traditional Terry stop.

A frequently invoked exception to the warra nt requirement, applicable to seizures
of persons, allows a law-enforcement officer to initiate a limited, investigatory stop—
known as a Terry stop—if the officer has reasonable, articulable suspicion of criminal
activity. State v. Munson, 594 N.W.2d 128, 13 6 (Minn. 1999) (citing Terry v. Ohio, 392
U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968)). Wh ether an officer has the requisite reasonable
suspicion to conduct a limit ed, investigatory stop depe nds on the totality of the
circumstances. State v. Klamar, 823 N.W.2d 687, 691 (Minn. App. 2012).
The traditional Terry-stop inquiry does not support the seizure here, however. Both
parties agree that, when the officers detained Miller in their squad car, he was not a suspect
in the gas-station robbery. The record confir ms that fact; the offi cers viewed Miller as a
victim of a second attempted robbery by the gas-station robbery suspects. Indeed, Officer
A testified that if he had suspected Miller of robbery, he would ha ve pat-searched him
before placing him in the squad car. Accordi ngly, the officers’ warrantless seizure of
Miller was not supported by reasonable, articul able suspicion of criminal activity. See
Munson, 594 N.W.2d at 136.
Miller argues that this determination shou ld end the inquiry. In his view, because
the officers seized him without a warrant or re asonable, articulable suspicion of criminal

18
activity,7 the seizure was necessarily unconstitutional. The state, on the other hand, argues
that the officers did not unlawfully seize Miller because they were “dealing with the exigent
circumstance of an at-large armed robber.”
We disagree with Miller that the lack of justification for the seizure under the
traditional Terry-stop analysis ends the inquiry. Because the touchstone of the
constitutional inquiry is “reasonableness,” Brigham City v. Stuart, 547 U.S. 398, 403, 126
S. Ct. 1943, 1944 (2006), the state may offe r, for our consideration, an alternative
justification for this type of nona rrest police detention of a citizen. See Grunig, 660
N.W.2d at 137. We accordingly turn to the state’s alternative arguments.
3. The freezing-the-scene framework from the Appelgate and Wold
line of cases does not justify the seizure.

The state contends that no unlawful se izure occurred “because the police merely
took a reasonable step—taking appellant to show-ups—to freeze the situation under the
exigent circumstance of an ar med robbery and unrecovered gu n.” The state’s exigency
argument is based on the following cases: Appelgate v. Comm’r of Pub. Safety , 402
N.W.2d 106, 108 (Minn. 1987), Wold v. State, 430 N.W.2d 171, 173-74 (Minn. 1988), and
State v. Stavish, 868 N.W.2d 670, 675 (Minn. 2015).
In Appelgate, a police officer stopped a car that was coming from an area where
there was a reported “burglary in progress.” 402 N.W.2d at 107-08. The driver, Appelgate,

7 Another exception to the warrant requirement provides that police officers can arrest a
felony suspect in a public place if they have probable cause. State v. Walker, 584 N.W.2d
763, 766 (Minn. 1998); State v. Cook, 610 N.W.2d 664, 667 (Minn. App. 2000). Neither
party suggests that the heightened requirement of probable cause justified the seizure here
though, nor would the record support that contention.

19
who was ultimately charged with DWI, challenged the validity of the stop arguing that the
stop had been unlawful. Id. At the evidentiary hearing, the officer explained that there
was “very little” traffic in the area at the ti me and Appelgate was driving erratically. Id.
Thus, because Appelgate’s vehicle was seen coming from the burgled apartment complex,
the officer suspected that Appelgate was involved in the burglary and initiated a stop. Id.
at 109.
In reviewing the constituti onality of the officer’s “limit ed investigatory stop,” the
supreme court noted that it was presented with “the specific issue of the stop of a motor
vehicle near a recent crime.” Id. at 108. The supreme court explained that in such an
evolving crime-scene situati on, “experience has shown that when a victim or witness
cannot name the offender[,] his apprehension is unlikely unless he is rather promptly found
in the immediate area.” Id. (quoting 3 Wayne R. LaFave, Search and Seizure: A Treatise
on the Fourth Amendment , § 9.3(d), at 460 (2d ed. 1987 )). In these circumstances,
therefore, “‘the police must have some authority to freeze the situation.’ Indeed, ‘[e]ven if
the circumstances are such that no one person can be singled out as the probable offender,
the police must sometimes be allowed to take some action intermediate to that of arrest and
nonseizure activity.’” Id. (quoting 3 LaFave, supra, at 461). The supreme court then
applied six factors from a leading Fourth Amendment treatise for assessing whether an
officer can conduct an investigative stop of a person in connection with a recently
committed, nearby crime.8 Id. at 108-09. After doing so, the supreme court held, “Looking

8 These six factors are:

20
at the totality of the circumstances—the whole picture—we conclude that the officer had a
particularized and objective basis for at least suspecting that Appelgate had been involved
in the burglary and that the officer therefor e was justified in subjecting Appelgate to a
limited investigative stop for the purpose of ‘freezing’ the situation.” Id. at 109.
In Wold—the second case that the state cite s to justify Miller’s seizure—a police
officer arrived at the scene of a violent stabbing and found Wold and another man shouting
at paramedics who were attending to a coma tose victim. 430 N.W.2d at 173. Another
officer instructed Wo ld to stand by an adjacent wall and patted him dow n, discovering
incriminating evidence in the process. Id. The supreme court analyzed whether the
officer’s limited, investigatory seizure of Wold was reasonable, applying the framework
from Appelgate. Id. at 174. In doing so, the supreme court noted that it “ha[s] recognized
that in order to ‘freeze’ the situation, the stop of a person present at the scene of a recently
committed crime of violence may be permissible without trampling on the [constitutional]
prohibition against unreasonable search and seizure.” Id. Ultimately, the supreme court
affirmed the district court’s conclusion that the officer was “justified in stopping [Wold]

(1) the particularity of the desc ription of the offender or the
vehicle in which he fled; (2) the size of the area in which the
offender might be found, as indicated by such facts as the
elapsed time since the crime oc curred; (3) the number of
persons about in that area; (4) the known or probable direction
of the offender’s flight; (5) observed activity by the particular
person stopped; and (6) knowledge or suspicion that the person
or vehicle stopped has been involved in other criminality of the
type presently under investigation.

Appelgate, 402 N.W.2d at 108 (citing 3 LaFave, supra, at 461).

21
for the purpose of questioning him to ascert ain the extent of his knowledge of, or
participation in, the stabbing.” Id. at 175.
In the final case cited by the state, Stavish, the supreme court assessed the
reasonableness of a warrantless blood draw —considered a “search” for purposes of
constitutional protections—in the context of a DWI investigation. 868 N.W.2d at 674-75.
The supreme court concluded that the stat e established, under the totality of the
circumstances, that exigent circumstances justified the specific search at issue. Id. at 67-
78.
We do not agree w ith the state that th e above exigent-circumstances line of cases
supports the officers’ seizure of Miller. These cases support—at most—limited,
investigatory stops of a person present at or near an active crime-scene in order to ascertain
the nature of the person’s potential involvement in the crime. See Appelgate, 402 N.W.2d
at 108-09; Wold, 430 N.W.2d at 175. Miller was not at the scene of the armed robbery—
the gas station. Although he was only a fe w blocks away, the events occurred in a busy
urban area. Further, the officers did not “freeze the scene” by momentarily keeping Miller
at the scene. Instead, they placed him in the back of their squad car and proceeded to drive
him around. And finally, unlike the defendants in the above-three cases, Miller was not
considered a potential suspect at the time the officers seized him. The officers in Appelgate
and Wold briefly seized individuals to discern whether they had committed or witnessed a
recent crime; they were not dealing with a person who had alrea dy been questioned and
determined (mistakenly) to be a victim or witness. See Appelgate, 402 N.W.2d at 107-08;
Wold, 430 N.W.2d at 174.

22
Moreover, even if we were to draw a broader “exigenc y” rule from the above line
of cases and apply it to seizures of nonsuspects, who are not present at a crime scene, the
record here simply does not support a finding of exigent circumstances that required police
to seize Miller and keep him in their moving squad car for 27 minutes. Miller cooperated
with the officers when they asked him what happened. His allegations did not create any
particular exigency. Miller claimed he was pushed. He did not report seeing a gun. Miller
told the officers how to reac h him for additional informati on, providing his name and
contact information, including an updated local address. And when Miller asked to leave,
he offered to come back later to identify any suspects.
In fact, one officer was willing to let Mille r leave, telling him that he was “good to
go.” That officer testified that he did not believe any circumstances at that point required
Miller’s continued presence. But Officer B— who did not testify at Miller’s suppression
hearing—decided to detain Miller for the purpose of identifying suspects.
Given these circumstances, we cannot conclude that the state’s cited exigency—“an
at-large armed robber”—justified the exte nded detention of Miller, who had already
provided the police with deta ils about what happ ened to him and who had not reported
seeing a gun. Ultimately, the stat e has not demonstrated, under the Appelgate and Wold
line of reasoning, that the type of exigency that would justify detaining a purported crime
victim existed here.

23
4. The seizure was not reasonable under the framework articulated
by the United States Supreme Court in Brown v. Texas.

In addition to the exigency argument based on Appelgate and Wold, the state also
urges us to simply assess the “reasonableness” of the police actions here. Although not
cited by the state, there is some authority fo r the proposition that a limited, investigatory
seizure of a nonsuspect witness or victim may be reasonable under certain circumstances.
That authority stems from the United States Supreme Court’s decision in Brown v. Texas,
which interprets the Fourth Amendment. 443 U.S. 47, 52, 99 S. Ct. 2637, 2641 (1979).9
In Brown, the Court considered the constitutionality of Brown’s encounter with two
officers in an alley located in an area known for drug trafficking. Id. at 48-52, 99 S. Ct. at
2639-41. The officers stopped Brown as he walked away from another individual because
“he looked suspicious” and unfamiliar. Id. at 48-49, 99 S. Ct. at 2639. When the officers
asked Brown to identify himself, he refused. Id. at 49, 99 S. Ct. at 2639. The officers then
arrested Brown under a Texas statute penalizi ng a refusal to provide identification to an
officer on request. Id.
The Court explained that the “reasonableness of seizures that are less intrusive than
a traditional arrest depends on a balance between the public in terest and the individual’s
right to personal security free from ar bitrary interference by law officers.” Id. at 50, 99
S. Ct. at 2640 (quotation and citations omitted). “Consideration of the constitutionality of

9 Minnesota courts can interpret Article I, section 10, of the Minnesota Constitution as
providing more—but not less—protection against unreasonable searches and seizures than
the Fourth Amendment of the United States Constitution. See State v. McMurray , 860
N.W.2d 686, 690 (Minn. 2015); see also Askerooth, 681 N.W.2d at 361-62.

24
such seizures,” the Court explained, “invol ves a weighing of the gravity of the public
concerns served by the seizure, the degree to which the seizure advances the public interest,
and the severity of the interference with individual liberty.” Id. at 50-51, 99 S. Ct. at 2640.
Concluding that Brown was stopped without reasonable, articulable suspicion that he was
involved in criminal activity, the Court went on to note that “[i]n the absence of any basis
for suspecting appellant of misconduct, the balance between the public interest and
appellant’s right to personal security and privacy tilts in favor of freedom from police
interference.” Id. at 52, 99 S. Ct. at 2641.
Other jurisdictions have, on occasion, cons idered the reasonableness of victim or
witness seizures using a framework si milar to the general one proposed in Brown. But
those cases—relied upon by the di ssent here—suggest that victims and witnesses have a
greater liberty interest than crimin al suspects. In other word s, victims and witnesses are
entitled to more protection from police interference. See, e.g., United States v. Ward, 488
F.2d 162, 170 (9th Cir. 1973) (reversing conviction en banc, holding that FBI agents’ stop
of a motorist in order to question him about a third party who was suspected of a crime was
unreasonable); Maxwell v. County of San Diego , 708 F.3d 1075, 10 84 (9th Cir. 2013)
(explaining that “in the hierarchy of state in terests justifying deten tion, the interest in
detaining witnesses for informati on is of relatively low value”); State v. Fair , 302 P.3d
417, 431 (Or. 2013) (holding that “officers constitutiona lly may, in appropriate
circumstances, stop and temporarily detain for questioning a person whom they reasonably
believe is a potential material witness to a crime”); see also 4 Wayne R. LaFave , Search
and Seizure: A Treatise on the Fourth Amendment , § 9.2(b) at 379-94 (6th ed. 2020)

25
(surveying cases invol ving witness seizures and observ ing that the actions of law
enforcement officers are more “narrowly circ umscribed” when they are dealing with
witnesses as opposed to suspects).
Without referencing Brown or any other authority regarding the liberty interests of
victims and witnesses, the stat e argues that “[w]hat the polic e did here was reasonable in
light of the fact that appellant claimed to have been robbed, an armed robbery had just
occurred nearby, the gun had not been recovered, and suspects were in custody.” But given
the actual circumstances here—where Miller was blocks away from the robbery, where he
did not claim to have seen a gun, where the police had already taken his statement, where
the officers had his contact information, wher e he asked to leave in a waiting ride-share
car, and where other officers were with the victims of the armed robbery—we cannot agree.
Moreover, we note that the in trusion here was significant. In addition to ordering Miller
into the back of a squad car against his wishes, the officers continued to detain him in their
moving squad car for over 27 minutes. Even under the authority from other jurisdictions—
which the state does not cite and which has not been directly applied by an appellate court
in Minnesota—we cannot conclude that the seizure of Miller was reasonable.10 The interest
in public safety simply did not outweigh a purported crime victim’s liberty interest.

10 The intrusion here significantly exceeded th e scope of the intrusions in the cases relied
on by the dissent. See Fair, 302 P.3d at 421-22 (in respon se to an aborted 911 call and
indicators of a domestic assault, officers or dered suspected victim from inside her home
onto her front porch to verify her identity and inquire about incident); State v. Pierce, 787
A.2d 1284, 1286 (Vt. 2001) (officer approa ched potential witnes s, whose vehicle was
parked next to suspected drunk driver’s car, and immediately observed that potential
witness smelled of alcohol, leading to DWI investigation of potential witness).

26
While we are quite concerned that Miller was dishonest with the officers about his
involvement in the robbery, that does not change our analysis. We assess the
constitutionality of the police action from the perspective of reasonable officers under the
circumstances, see Askerooth, 681 N.W.2d at 364, and these officers were presented with
circumstances where they reasonably thought th ey were interacting with a crime victim
rather than a suspect.
Because the officers seized Miller within the meaning of the Minnesota Constitution
without a warrant, and the state has not shown that an exigency justifying the warrantless
seizure existed, and because we do not find that the seizure was otherwise reasonable, we
conclude that the officers’ detention of Miller violated his constitutional rights. Given this
constitutional violation, all evidence stemmi ng from the seizure must be suppressed.
Harris, 590 N.W.2d at 99. The district court accordingly erred by denying Miller’s
suppression motion.
II. The show-up identification procedure used in this case, while highly suggestive,
did not create a substantial likelihoo d of irreparable misidentification
considering the totality of the circumstances.

Miller next argues that the district c ourt erred by holding that the eyewitness
identifications by M.B. and M.V. violat ed his due-process ri ghts. Although the
eyewitnesses’ identifications likely resulted from Miller’s unlawful seizure, and should be
excluded on that basis, we nonetheless brie fly address the arguments presented by the
parties here.
The United States and Minnesota Constitu tions guarantee criminal defendants the
right to due process of law. U.S. Const. am end. XIV; Minn. Const. art. I § 7. “The

27
admission of pretrial identification evidence violates due process if the procedure ‘was so
impermissibly suggestive as to give rise to a very substantial like lihood of irreparable
misidentification.’” State v. Hooks , 752 N.W.2d 79, 83-84 (Mi nn. App. 2008) (quoting
Simmons v. United States , 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968)). Whether an
identification procedure is so suggestive as to violate due process is an issue appellate
courts review de novo. Id. at 83.
Appellate courts follow a two-part pr ocess in addressing the admissibility of
identification testimony. State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995). First, the
appellate court determines whether the proced ure used to elicit the identification was
“unnecessarily suggestive.” Id. In doing so, the court looks at “whether the defendant was
unfairly singled out for identification.” Id. (citing Simmons, 390 U.S. at 383, 88 S. Ct. at
970-71). If the court finds that the identific ation process was unnecessarily suggestive, it
must then determine whether the totality of the circumstances surrounding the
identification created “a very substantial likelihood of irreparable misidentification.” State
v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999) (quotation om itted). If the totality of the
circumstances did not create such a likelihood, then the identification is considered reliable
despite any suggestive procedure. Ostrem, 535 N.W.2d at 921.
Here, the district court determined that “while the show-up method used by the
police in this matter was undoubtedly suggestive,” the tactics used by the police were not
so suggestive as to render the victims’ identifications of Miller unreliable.

28
Miller argues that the district court erred, asserting that the show-up procedure used
was unnecessarily suggestive an d the identification was not reliable under the totality of
the circumstances. Each argument is addressed in turn.
A. The identification procedure was unnecessarily suggestive.
In determining whether an identificati on procedure is unnecessarily suggestive,
courts ask “whether the defendant was unfairly singled out for identification.” Taylor, 594
N.W.2d at 161 (quotation omitted). The concern is whether “ police influence rather than
the witness’s own reasoning and recollection le d to the witness’s identification of the
defendant.” Hooks, 752 N.W.2d at 84 (emphasis omitted).
The state appears to concede that the proc edure used by law enforcement officers in
this case was unnecessarily suggestive. Such a concession, if made, is well supported by
the record. Before the office rs drove M.B. and M.V. to the show-up identification of
Miller, they stated that other officers had “got the guy and the gun.” Officer C specifically
told M.B. and M.V. “We’re going to go over there and ID him okay? The guy that had the
gun.” When the officers showed Miller to M.B. and M.V., he was handcuffed and standing
outside of a squad car. Additionally, the officers had M.B. and M.V. together in one squad
car, which created a risk that they would influence each other. Under these circumstances,
we conclude that the procedure used was unnecessarily suggestive.
B. Despite the suggestive identifica tion procedure, there was not a
substantial likelihood of irreparable misidentification.

Even if an identification procedure is unnecessarily suggestive, the identification
will not be excluded unless the totality of the surrounding circ umstances created “a very

29
substantial likelihood of irreparable misidentification.” Taylor, 594 N.W.2d at 161
(quotation omitted). Under th e controlling precedent, we consider the following five
factors to assess the totality of the circumst ances: (1) the “opportuni ty of the witness to
view the criminal at the time of the crime;” (2) the “witness[’s] degree of attention;” (3) the
“accuracy of the witness[’s] prior description of the criminal;” (4) the “level of certainty
demonstrated by the witness at the show-up;” and (5) the “time between the crime and the
confrontation.” Ostrem, 535 N.W.2d at 921.
After a careful review of the record ev idence—particularly, a CCTV video of the
parking-lot interaction between M.B. and M.V. and the robber, and the squad-car video of
Officer C driving M.B. and M.V. to various show-ups—we conclude that these five factors
weigh in favor of reliability of the identifications here.
As to the first and second factors, M.B. and M.V. interacted with the robber during
daylight. His face was uncovered and they spoke for about four minutes within just feet of
each other before the robbery. And despite Miller’s claim that M.B. and M.V. were
distracted by the general busyness of the park ing lot and nearby street, the video footage
shows that they were engaged in the interaction.
Regarding the third factor, although some details of M. B. and M.V.’s description
ultimately did not match Miller (i.e., that the robber was wearing pants, not shorts), their
descriptions largely lined up. Miller, from the body-camera footage, indeed appears to be
“taller” and “heavier set,” between the mid-20s and 35 years old, and Black. That M.B.
and M.V. did not precisely describe his shir t color seems understandable, as the robber’s
shirt—as seen in the CCTV photograph—was gray on the to rso area but had red sleeves

30
and a logo in the middle (as di d Miller’s shirt). This aligne d with M.B.’s statement that
the shirt was “gray” or “mixed colors,” though she was not certain.
As to the fourth factor, M.B. and M.V. immediately and confidently identified
Miller as the robber when they saw him. And despite Miller’s suggestion in his brief, M.B.
and M.V. did not seem to be so frazzled or emotional from the robbery as to cast doubt on
their recollection. M.B., in particular, se emed composed and self-assured throughout the
hour-long show-up process. Notably, she an d M.V. responded right away when asked if
other people were part of the group in the parking lot, confidently identifying a few suspects
affirmatively and a few negatively.
For the fifth and final factor, only an hour or so had elapsed between the robbery
and the identification. This short period of time certainly supports the reliability of the
identifications.
Ultimately, despite the unnecessarily suggestive procedure used by the police in this
case, the totality of the circumstances did not create “a very substantial likelihood of
irreparable misidentification.” Taylor, 594 N.W.2d at 161 (quotation omitted). The district
court accordingly did not err by declining to exclude the id entifications on due-process
grounds.
III. Because the parties agreed to a stipul ated-evidence trial under rule 26.01,
subdivision 4, Miller’s convictions must be reversed.

Following the district court’s pretrial ru lings on Miller’s motions to suppress and to
exclude the eyewitness identifications, Miller waived his right to a jury trial and agreed to
a stipulated-evidence court trial under rule 26.01, subdivision 4(a), of the Minnesota Rules

31
of Criminal Procedure. Although the purpose of this rule is to allow a criminal defendant
to preserve a dispositive issue for appeal, the state now argues that Miller’s appellate issues
are not dispositive.
Under rule 26.01, subdivision 4(a), “[w]hen the parties agree that the court’s ruling
on a specified pretrial issue is dispositive of the case, or that the ruling makes a contested
trial unnecessary,” the parties may use the pr ocedure outlined in that subdivision “to
preserve the issue for appellate review.” Under this procedure, the defendant maintains a
not-guilty plea, and both the defendant and state “must acknowledge that the pretrial issue
is dispositive, or that a trial will be unnecessary if the defendant prevails on appeal.” Minn.
R. Crim. P. 26.01, subd. 4(b)-(c). Then, “[t]he defendant must stipulate to the prosecution’s
evidence in a trial to the court, and ackno wledge that the court will consider the
prosecution’s evidence, and that the court may enter a finding of guilt based on that
evidence.” Id., subd. 1(e). The defendant “must also acknowledge that appellate review
will be of the pretrial issue, but not of the de fendant’s guilt, or of ot her issues that could
arise at a contested trial.” Id., subd. 1(f).
Miller waived his right to a jury trial and agreed to a stipulated-evidence trial on the
record, with his counsel and counsel for the state present. He responded affirmatively when
asked if he agreed appellate review would be of the pretrial issues and that review of those
issues would be dispositive. He also signed a written waiver acknowledging the same. The
state did not voice any objection during the waiver on the r ecord, and later submitted the
stipulated body of evidence to the court.

32
In its brief to this court, the state argued th at the district court’s rulings on the pretrial
motions should be reviewed for harmless error. But the state withdrew this contention at
oral argument, correctly recognizing that harmless-error analysis does not apply to
convictions obtained pursuant to a stipulated-evidence trial. See In re R.J.E., 642 N.W.2d
708, 713 (Minn. 2002) (explaining that harm less-error review should not be applied to
trials on stipulated facts). Instead, the state asserted—for the first time at oral argument—
that the procedure followed by the parties in the district court was invalid because the
prosecutor did not sign an acknowledgment that the pretrial rulings were dispositive.
We reject the state’s new argument for se veral reasons. Initially, we observe that
strict compliance with rule 26.01, subdivision 4, is not required. State v. Myhre , 875
N.W.2d 799, 803-04 (Minn. 2016). Indeed, appe llate courts “have tolerated a substantial
amount of procedural error when the record shows that the partie s clearly intended to
achieve the outcome contemplated by [the rule.]” Id. at 804. Here, the intention of the
parties was clearly to proceed with a stipulated-evidence trial. The prosecutor was present
while Miller went through the required rule 26.01, subdivision 4, acknowledgments on the
record and did not object, and later submitted the stipulated body of evidence to the court.
At no point did the prosecutor object to the defense’s characterization of the pretrial rulings
as dispositive.11

11 We also observe that the state made no argument in connection with the suppression
motion that the exclusionary ru le would not apply if the dist rict court concluded that the
officers seized Miller in violation of the Minnesota Constitution.

33
Moreover, we ordinarily do not consider errors that were not objected to in the
district court. See State v. Osborne , 715 N.W.2d 436, 441 (Minn. 2006). Nor do we
consider challenges raised for the first time during oral arguments and not included in the
parties’ briefs. See State v. Tracy , 667 N.W.2d 141, 145 (M inn. App. 2003). We
accordingly deem the state’s challenge to the procedural validity of the stipulated-evidence
trial forfeited.
Because we have determined that the dist rict court erred by denying Miller’s motion
to suppress the evidence stemming from his unconstitutional seizure, and the parties agreed
that issue is dispositive during the proceedings in the dist rict court, we reverse his
convictions.
Reversed.

C/D-1

LARKIN, Judge (concurring in part, dissenting in part)
I agree with the majority that a seizure occurred when the responding officers told
Miller that he was “coming with [them]” to identify a potential suspect in a recent armed
robbery, that the late r show-up identifications of Miller as the perpetrator of the robbery
were constitutional, and that the state’s ch allenge to the procedural validity of the
stipulated-evidence trial is forfeited. But I write separately because I conclude that under
the totality of the circumstances, the officers did not violate the Minnesota or United States
Constitutions by temporarily detaining Miller based on his claim that he could identify the
armed robber. I would therefore affirm Miller’s convictions.
This case requires us to decide whether th e seizure of an alleged crime victim for
approximately 30 minutes to conduct show-up identifications was reasonable. “When facts
are not in dispute, as here, we review a pretrial order on a motion to suppress de novo and
determine whether the police arti culated an adequate basis fo r the search or seizure at
issue.” State v. Williams, 794 N.W.2d 867, 871 (Minn. 2011) (quotation omitted).
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures by the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Generally,
a seizure conducted w ithout a warrant is per se unreasonable. State v. Burbach , 706
N.W.2d 484, 488 (Minn. 2005); State v. Dotson, 900 N.W.2d 445, 450 (Minn. App. 2017).
A police officer may, however, initiate a limited investigative seizure without a warrant if
the officer has reasonable, articulable suspicion that the person to be seized is involved in
criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968). Whether
the police have reasonable suspicion to conduc t an investigative seizure depends on the

C/D-2

totality of the circumstances, and a showing that the seizure was not “the product of mere
whim, caprice, or idle curiosity.” In re Welfare of M.D.R. , 693 N.W.2d 444, 448 (Minn.
App. 2005) (quotation omitted), review denied (Minn. June 28, 2005).
The analysis of an investigative seizure involves a dual inquiry. State v. Askerooth,
681 N.W.2d 353, 364 (Minn. 2004 ). First, we ask “whether the [seizure] was justified at
its inception.” Id. Second, we ask “whether the actions of the police during the [seizure]
were reasonably related to and justified by the circumstances that gave rise to the [seizure]
in the first place.” Id. The second prong of the inquiry “constrains the scope and methods
of a search or seizure.” Id. A seizure that is initially va lid “may become invalid if it
becomes intolerable in its intensity or scope.” Id. (quotations omitted). “[E]ach
incremental intrusion during a [seizure] must be strictly tied to and justified by the
circumstances which rendered the initiation of the [seizure] permissible.” Id. (quotations
omitted).
This case involves the temporary seizure of an alleged crime victim—as opposed to
a criminal suspect—for investigative purposes. As explained by one leading legal scholar,
“[t]he Model Code of Pre-Arraignment Procedure takes the sensible position that the power
to stop may constitutionally be extended so as to encompass the brief detention of potential
witnesses in at least certain s ituations.” 4 Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment § 9.2(b) (6th ed. 2020); see State v. Degroot , 946
N.W.2d 354, 361 n.10 (Minn. 2020) (citing LaFave). Under the Model Code, an officer
may stop a person if:

C/D-3

(i) the officer has reasonable cause to believe that a
misdemeanor or felony, involving danger of forcible injury to
persons or of appropri ation of or danger to property, has just
been committed near the place where he finds [the] person [to
be stopped], and
(ii) the officer has reasonable cause to believe that such
person has knowledge of material aid in the investigation of
such crime, and
(iii) such action is reasonably necessary to obtain or
verify the identification of such person, or to obtain an account
of such crime.

Model Code of Pre-Arraignment Procedure § 110.2(1)(b) (1975).
The standard established in the Model Code was contemplated in United States v.
Ward, 488 F.2d 162 (9th Cir. 1973 ). In that case, federal agents stopped a driver whom
they wanted to question about some federal fugitives. Ward, 488 F.2d at 163. The federal
appellate court concluded that the stop was unreasonable, reasoning that “there was no
crime ‘afoot.’ The [federal] agents did not stop appellant’s car in connection with any
particular crime, but rather the stop was pursua nt to a general criminal investigation that
had begun several months before.” Id. at 169. The court also stated that “significantly, the
stop was not made pursuant to the agent’s founded suspicion that the detainee was involved
or about to be involved in cr iminal activity. Rather the stop was made for the purpose of
questioning the appellant about a third person.” Id. (emphasis and footnote omitted).
However, the court recognized that there were no “exigent circumstances” such as an
emergency situation necessitating the “need for immediate action.” Id.
LaFave explains that Ward “should not be read so broadly” to mean that it is never
constitutionally permissible to stop a potential witness. LaFave, supra, § 19.2(b). Rather,
the “central point in Ward is that there were no exigent circumstances.” Id.

C/D-4

Other courts have conclude d that a stop and temporary detention of a material
witness is constitutional when exigent circumstances are present. For example, in State v.
Fair, police temporarily seized a woman because they reasonably believed that she was a
material witness to or a victim of a recent as sault. 302 P.3d 417, 421-22, 429 (Or. 2013).
After giving “due regard” both to the “practic al necessities of effective law enforcement”
and to the protected liberty interests at stake, the Oregon Supreme Court relied on the
Model Code and held that the stop and on-the-scene detention of a likely material witness
will be constitutional if:
(1) the officer reasonably believes that an offense involving
danger of forcible injury to a person recently has been
committed nearby; (2) the officer reasonably believes that the
person [to be stopped] has kno wledge that may aid the
investigation of the suspected cr ime; and (3) the detention is
reasonably necessary to obtain or verify the identity of the
person, or to obtain an account of the crime.

Id. at 430-31 (stating that “[w]e have found no jurisdiction, and defendant cites none, that
rejects the basic approach endor sed by the Model Code and by other authorities, such as
Professor LaFave” (emphasis omitted)).
The Oregon Supreme Court concluded th at the detention of the woman was
reasonable because the officers detained her “with probable cause to believe that [her]
husband had just assaulted her and under exigent circumstances that arose in the context of
the officers’ emergency response to an apparent incident of domestic violence.” Id. at 435.
The Oregon Supreme Court reas oned that the officers had responded to an aborted 911
call, which was made by the woman and which the court considered a “tacit invitation by
[the woman] to come to her aid.” Id. at 426.

C/D-5

Similarly, in State v. Pierce, the Vermont Supreme Court held that an officer’s brief
seizure of the defendant for questioning was reasonable even though the defendant was not
suspected of criminal activity. 787 A.2d 1284, 1288-89 (Vt. 2001). In that case, the police
stopped the defendant’s vehicle because the defendant had been stopped next to the vehicle
of another motorist who was suspected of driving under the influence (DUI). Id. at 1285.
The Vermont Supreme Court applied the sta ndard articulated in the Model Code and
determined that the following circumstances supported the reasonableness of the stop:
(1) the defendant was a witness to a DUI offens e, which is an offense involving a danger
of “forcible injury to persons”; (2) the defendant had a “perfect vantage point” from which
to observe erratic operation of the suspect ve hicle; and (3) “a fresh witness account was
desirable because the officer had to make i mmediate decisions about how to handle the
situation before him.” Id. at 1288-89 (quotation omitted).
In light of the lack of precedential author ity regarding the issue presented in this
case, I conclude that the standard discussed by LaFave, as articulated in the Model Code
and applied in Fair and Pierce, is persuasive and supports a conclusion that the actions of
the police in this case were constitutionally re asonable. The police were investigating an
armed robbery that had just occurred at a gas station in broad daylight. One of the suspects
had pointed a gun at the victims, creating a da nger of “forcible injury to persons.” The
suspects ran from the sc ene and were at large in the community, creati ng an exigent
circumstance.
Shortly after the robbery, an individual called 911 to report that Miller had entered
a store located a few blocks aw ay from the gas station and decl ared that he had just been

C/D-6

robbed. Two officers responded to the store and approached Miller. Miller spoke with the
officers and told them that two guys pushed him to the ground and attempted to rob him.
He also told the officers that he would be able to identify the suspects, reasonably causing
the officers to believe that Miller had know ledge that would materially aid in the
investigation of the robbery.
Not long after the responding officers appr oached Miller at the store, they learned
that a suspect had been apprehended. It wa s reasonable for them to briefly detain Miller
for the purpose of conducting a show-up identification. Although Miller initially expressed
a desire to leave the scene, he did not demand to leave. Nor did he refuse to cooperate with
the police. Moreover, the police treated Miller as a crime victim, and not a suspect; they
did not search him, handcuff him, threaten him, or physically restrain him.12 In fact, when
Miller remarked that the person in the surveillance video looked like him, one officer said,
“That ain’t you.” The officers spoke to Mille r’s mentor on the phone, thanked Miller for
his cooperation, charged his cell phone, and drove him to his destination. Importantly, the
officers did not interfere with Miller’s libert y any longer than was necessary for him to
participate in the two show-u p identification procedures, which took less than one-half
hour.
In sum, during the time that the police reasonably believed that Miller was a crime
victim, their actions never strayed from the orig inal purpose of the investigative seizure:
transporting Miller to the location of a show-u p identification to see if he could identify

12 The police were therefore unaware that Miller was riding in the back of their squad car,
unrestrained, with a gun in his pocket.

C/D-7

suspects in a recent armed robbery. Miller’s seizure was reasonable at its inception, in its
duration, and in its intensity.
Ultimately, the “touchstone of the Fourth Amendment is reasonableness.” State v.
Johnson, 813 N.W.2d 1, 5 (Minn. 2012) (quotation omitted). The “reasonableness of [a]
seizure under the Fourth Amendment depends upon a weighing or balancing of ‘(1) the
gravity of the public concerns served by the seizure, (2) the degree to which the seizure
advances the public interest, and (3) the se verity of the interfere nce with individual
liberty.’” Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183, 185 (Minn. 1994) (quoting
Brown v. Texas, 443 U.S. 47, 50-51, 99 S. Ct. 2637, 2640 (1979)).
Here, important public concerns were se rved by the seizure, which significantly
advanced the public’s intere st in apprehending individual s who had just committed an
armed robbery in broad dayli ght. Given the totality of th e circumstances, including the
length of the detention and the officers’ favorable treatment of Miller during the detention,
the interference with Miller’s liberty was not severe. On balance, I conclude that Miller’s
temporary detention for the purpose of par ticipating in show-up identifications was
constitutionally reasonable. I would therefore affirm.