State of Minnesota, Appellant,

This opinion is nonprecedential except as provided by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
A20-1183

State of Minnesota,
Appellant,

vs.

Nicholas Gage Carr,
Respondent.

Filed May 17, 2021
Affirmed
Bryan, Judge

Hennepin County District Court
File No. 27-CR-20-2205

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

James R. Rowader, Jr., Minneapolis City Atto rney, Amy J. Tripp-Steiner, Assistant City
Attorney, Minneapolis, Minnesota (for appellant)

Coley J. Grostyan, Minneapolis, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Ju dge; Bryan, Judge; and
Halbrooks, Judge.
*

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
BRYAN, Judge
In this pretrial appeal, appellant challe nges the district court’s order suppressing
evidence. Because we conclu de that the officer’s verbal and nonverbal directives
amounted to an unreasonable investigative seiz ure of respondent, we affirm the district
court’s decision granting respondent’s motion to suppress evidence.
FACTS
Appellant State of Minnesota charged respondent Nicholas Gage Carr with
possessing a pistol without a permit in violati on of Minnesota Statut es section 624.714,
subdivision 1a (2018), and carrying a pistol while under the influence of alcohol in
violation of Minnesota Statutes section 624.7142, subdivision 1(4) (2018). Carr moved to
suppress evidence, arguing th at the state obtained this evidence—namely, the firearm—
after an unlawful investigative seizure of his person. The di strict court held a hearing,
admitted testimony from Carr and the arresting officer, and received the officer’s squad car
video recording of the encounter into evidence.
The district court granted Carr’s motion to suppress and made the following findings
of fact. In the early morning hours of January 24, 2020, Officer Matthew Williams was on
duty and standing outside of his squad car near the Hennepin County Medical Center. At
approximately 2:52 a.m., Carr approached Williams. Carr explaine d that he was on his
way back to his hotel and wa nted directions because his cell phone was dead. Williams
smelled alcohol coming from Carr and observed a wet spot on Carr’s pants. Williams used
his cell phone to determine the address of Ca rr’s hotel. Carr confirmed that the address

3
was correct. After seeing the information on Williams’s cell phone, Carr now knew where
he was going. Carr intended to walk the nine blocks back to his hotel.1 At this point in the
encounter, Williams made a nonverbal gesture and a verbal declaration: “Williams made
the motion to open the door of the squad car for Mr. Carr, and told Mr. Carr that he was
going to search him.”2 Carr felt compelled to do as Williams directed: “Mr. Carr did not
feel that he had a choice ab out getting into the squad car. . . . Officer Williams never
informed Mr. Carr whether he had a choice ab out getting into the squad car, or whether
Mr. Carr had a choice about a pat search.” Williams asked Carr if he had a weapon, and
Carr said that he was carrying a firearm in his waistband. Williams called two passing
officers over for assistance, placed Carr in handcuffs, removed the gun, and arrested Carr.
The district court concluded that the officer unlawfully seized Carr without
reasonable suspicion of criminal activity when Williams “motioned toward his squad car,
indicating that Mr. Carr should get inside, a nd simultaneously told Mr. Carr that he was
going to pat search him.” The district cour t noted that, like Carr, “a reasonable person
would not have felt free to ignore [the officer] or to walk away.” The district court also

1 The district court found that Carr “credibly testified that, after seeing . . . [the officer’s]
cell phone, he knew where he wa s going and he intended to wa lk the nine blocks to his
hotel.” Neither party challenges the district court’s credibility determinations.
2 The state characterizes Williams’s nonverbal communication as a “silent gesture,” but
does not dispute that Williams simultaneously made verbal comments. The video
recording shows the following : Williams snapped his fingers as he walked by Carr,
motioned for Carr to follow him, and declared “Before you get in, I’m just gonna pat you
down quick, make sure you don’t got any weap ons on you.” In resp onse, Carr stated, “I
do got a weapon on me.” Williams put Carr’s hands on top of his head, interlocking his
fingers, and asked, “You got a knife?” Carr responded, “I got a gun.” Neither party
challenges the factual findings, and given the actions and statements captured on the video
recording, we discern no error in the district court’s findings.

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determined that “there was no reason to belie ve that Mr. Carr was in need of medical
assistance, or that there was an emergency situation” because although Carr smelled of
alcohol, he exhibited no other signs of intoxication, had no difficulty communicating, and
did not ask for a ride. Accordingly, the dist rict court suppressed the evidence. The state
appeals.3
DECISION
The state argues that the district court erred when it suppressed the evidence of the
firearm. Because Williams’s gesture a nd simultaneous statement indicated that
compliance was required, and because the state concedes it lacked a sufficient basis for an
investigatory seizure at that point in the en counter, we conclude that Carr was unlawfully
seized.
The Fourth Amendment to the United St ates Constitution and article I of the
Minnesota Constitution protect citizens from unr easonable searches and seizures. U.S.
Const. amend. IV; Minn. Const. art. I, § 10. “Under the Minnesota Constitution, ‘a person
has been seized if in view of all the circ umstances surrounding the incident, a reasonable
person would have believed that he or she was neither free to disregard the police questions
nor free to terminate the encounter.’”4 State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999)

3 As a threshold matter, we agree with the parties that the state has satisfied the
requirements for review of the pretrial order. See Minn. R. Crim. P. 28.04, subd. 2(2)(b)
(requiring showing of critical impact); State v. Kim , 398 N.W.2d 544, 551 (Minn. 1987)
(defining the critical impact threshold).
4 The Minnesota Supreme Court has interpreted article I of the Minnesota Constitution to
offer more protection than the Fourth Amendment to the United States Constitution. For
example, although California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547 (1991) held that
a seizure occurs when police use physical for ce or when a person submits to a show of

5
(quoting State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995)). Examples of circumstances
that indicate a seizure has occu rred include: “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.” Id. (quotations omitted). “In the ab sence of some such evidence,
otherwise 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 791, 783
(concluding that a seizure occurred once the police officer directed E.D.J. to stop (quoting
United States v. Mendenhall, 446 U.S. 544, 555, 100 S. Ct. 1870, 1877 (1980))). “Further,
when a person is seized, courts must suppress evidence gathered as a result of that seizure
only when the seizure was unreasonable.” Harris, 590 N.W.2d at 99.
The state argues that the district court e rred in determining that an investigatory
seizure occurred when Williams made the ve rbal and nonverbal directives to Carr.
According to the state, Harris established four factors that district courts must apply in
order to determine whether and when a seizur e occurred. The state then argues that the
district court did not balance or specifically weigh each of these fact ors. Given that the
state does not assign error to a ny of the factual findings of th e district court, the state’s

authority, the Minnesota Supreme Court determined that under the Minnesota Constitution,
a person could be seized even in the absence of force, if a reasonable person would not feel
free to leave under the totality of the circumstances. In re Welfare of E.D.J., 502 N.W.2d
779, 783 (Minn. 1993) (“[W]e are not persuaded by the majority opinion in Hodari, and
we are persuaded that there is no need to depart from the pre-Hodari approach.” (emphasis
omitted)); see also State v. Askerooth , 681 N.W.2d 353, 363 (Mi nn. 2004) (declining to
adopt the holding in Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536 (2001),
and instead applying Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80 (1968)).

6
argument raises a question of law that we review de novo. State v. Gauster, 752 N.W.2d
496, 502 (Minn. 2008) (quota tion omitted) (“When reviewing a district court’s pretrial
order on a motion to suppress evidence, we review the district court’s factual findings under
a clearly erroneous standard and the district court’s legal determinations de novo.”);
Harris, 590 N.W.2d at 98 (“Specifically, when th e facts are not in dispute, a reviewing
court must determine whether a police office r’s actions constitute a seizure and if the
officer articulated an adequate basis for the seizure.”).
We disagree with the state’s argument for two reasons. First, contrary to the state’s
argument, Harris lists examples that may or may not be present in a given case, not a list
of factors for the district court to individually weigh in every case. 590 N.W.2d at 98.
Under Harris, a district court determines whether the conduct present, like the conduct in
the listed examples, indicates that a seizure has occurred. Id. The circumstances of this
case most closely re semble the fourth Harris example: “the use of language or tone of
voice indicating that compliance with the o fficer’s request might be compelled.” Id.
(quotation omitted). Here, the district c ourt did not misapply th e law, but properly
considered whether the totality of Williams’s actions, statements, la nguage, and tone of
voice indicated that Williams would compel Carr to comply with his directives.
Second, the state’s argument overlooks the compulsory nature of Williams’s actions
and statements. The initial encounter began when Carr asked the uniformed police officer
for help locating his hotel. Carr did not request a ride. Af ter Williams explained to Carr
the hotel’s location, the purpose for initiating contact was complete. At this point Carr was
no longer lost, and he intended to walk the nine blocks back to the hotel. Before Carr could

7
walk away, however, Williams directed Carr to the back seat of the squad car. At the same
time, the officer declared that he was now going to search Carr. We agree with the district
court that a reasonable person would not re spond to Williams’s ve rbal and nonverbal
directives by disregarding them and walking away. In addition, Williams did not ask Carr
any questions, present Carr with any options, or communicate that Carr had the opportunity
to make a choice or otherwise walk away from Williams.5 By directing Carr into the back
seat of the squad car, declari ng that Carr would be searched, and not indicating that Carr
had any other options, Williams commenced an investigative seizure.
Having concluded that an investigative se izure occurred prior to Carr’s statement
that he had a weapon, we next address whet her that seizure was reasonable. “A police
officer may stop and temporarily seize a pers on to investigate that person for criminal
wrongdoing if the officer reas onably suspects that pers on of criminal activity.” Cripps,
533 N.W.2d at 391; Terry, 392 U.S. at 19-21, 88 S. Ct. at 1879-80. The state acknowledges
that Williams did not have reasonable suspicion that Carr was engaged in criminal activity
when he gestured to the back seat of the squad car and told Carr that he was going to search
him. The state however argues that the inve stigative seizure was reasonable because the
officer had a valid safety concern for both Carr and himself.6

5 The state cites a nonprecedential case for the proposition that offering a citizen a ride is
not a seizure. State v. Stigen, No. A11-0452, 2012 WL 686079, at *6 (Minn. App. Mar. 5,
2012), review denied (Minn. May 30, 2012). We are not persuaded that this case supports
reversal. In Stigen, the officer offered the choice of a ride or walking into town. Id. at *2.
Here, the officer did not offer Carr any choices or give any indication that compliance with
the verbal and nonverbal directives was optional.
6 The state also alludes to the community-caretaker and em ergency-aid exceptions to the
warrant requirement, but does not cite any le gal authority regarding either theory. We

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The state cites three cases to support its position that officer safety concerns permit
a search in the absence of reasonable suspicion: State v. Lemert , 843 N.W.2d 227, 230
(Minn. 2014); State v. Varnado, 582 N.W.2d 886, 891 (Minn. 1998); State v. Curtis, 190
N.W.2d 631, 636 (Minn. 1971). These aut horities, however, do not support the state’s
argument because each hol ding applies after a lawful investigative seizure has occurred
and none allows a search in the absence of reasonable suspicion of criminal activity. See
Lemert, 843 N.W.2d at 231-32 (noting that “our task is to determine whether, under the
totality of the circumstances at the inception of the pat search, the officers had a reasonable,
articulable suspicion that Lemert might ha ve been armed and dangerous” and concluding
that “the officers had a reasonable, articulab le suspicion that Lemert might have been
armed and dangerous”); Varnado, 582 N.W.2d at 890-91 (rejec ting the state’s requested
exception to Terry, declining to adopt “a blanket rule a llowing officers . . . to frisk . . .
citizens before they enter a squad car,” and instead holding that “when an officer has a
valid reasonable basis for placing a lawfully st opped citizen in a squa d car, a frisk will
often be appropriate without additiona l individual articulable suspicion”); Curtis, 190
N.W.2d at 636 (holding that police may, under limited circumstances for their own
protection, “search a person before placing him in a squad car if there is a valid reason for
requiring him to enter the vehicle and it is not merely an excuse for an otherwise improper
search”).

decline to address these exceptions in the absence of adequate briefing. State, Dep’t of
Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997).

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Because the state agrees th at Williams had no basis to suspect Carr of criminal
activity at the time that Williams made the ve rbal and nonverbal dir ectives to Carr, none
of these cases justifies a search out of a conc ern for officer safety, and we conclude that
Carr was unlawfully seized.
Affirmed.