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This opinion is nonprecedential except as provided by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
A20-1474

State of Minnesota,
Respondent,

vs.

Gregory James Head,
Appellant.

Filed November 29, 2021
Reversed and remanded
Reilly, Judge

Beltrami County District Court
File No. 04-CR-19-2850

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

David L. Hanson, Beltrami County Attorney, David P. Frank, Chief Assistant County
Attorney, Bemidji, Minnesota (for respondent)

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

Considered and decided by Gaïtas, Presiding Judge; Ross, Judge; and Reilly, Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant challenges his conviction for unlawful firearm possession and third-
degree drug possession, arguing that the district court: (1) erred in denying his motion to
suppress, (2) violated his constitutional rights, and (3) erred in its sentencing decision. We
determine that the district court erred in considering evidence that was not presented at the
2
suppression hearing when it made its finding that there was reasonable, articulable
suspicion for the stop. W e therefore reverse and remand for the district court to consider
whether the police officer had reasonable, artic ulable suspicion to stop, based exclusively
on the record of the evidence elicited at the suppression hearing.
FACTS
In September 2019, an anonymous tipster, who was later identified as a law
enforcement investigator, saw appellant Gregory James Head in a Walmart parking lot.
The investigator was familiar with appellant and suspected that he had an outstanding
warrant for his arrest. The investigator called the Bemidji Police Department to report
appellant’s location. The police department dispatched a p olice officer to the Walmart
parking lot to arrest appellant on the outstanding warrant.
The officer drove to Walmart and saw a vehicle in the parking lot that he believed
matched the description provided by the dispatcher. The officer activated his emergency
lights and stopped the vehicle. The squad video depicts two people sitting in a large, dark-
colored vehicle. The officer identified appellant as the front passenger in the vehicle and
placed him under arrest. The officer saw a baggie between the passenger seat and the door,
which contained a substance that field tested positive for heroin. The officer also found a
loaded firearm and a box of ammunition under the front passenger seat where appellant
had been sitting.
Respondent State of Minneso ta charged appellant with ineligible possession of a
firearm and possession of heroin. Appellant moved to suppress the evidence discovered in
the vehicle, arguing that the police officer did not have a reasonable basis to stop the vehicle
3
and conduct a search. Following a contested omnibus hearing, the district court denied
appellant’s suppression motion. Appellant then pleaded not guilty to the charged offenses
and the matter proceeded to trial. The jury found appellant guilty of both crimes and the
district court imposed sentence.
This appeal follows.
DECISION
Appellant challenges the district court ’s order denying his motion to suppress
evidence. When reviewing a pretrial order on a motion to suppress evidence, an appellate
court independently review s the facts and determines, as a matter of law, whether the
district court erred by denying the motion. State v. Harris , 590 N.W.2d 90, 98 (Minn.
1999). We review the district court’s factual findings for clear error. State v. Gauster, 752
N.W.2d 496, 5 02 (Minn. 2008). A factual finding “is not clearly erroneous if it is
reasonably supported by the evidence as a whole.” State v. Barshaw , 879 N.W.2d 356,
366 (Minn. 2016). We also defer to the district court’s credibility determinations. State v.
Klamar, 823 N.W.2d 687, 691 (Minn. App. 2012).
We begin with the state’s argument that it lacked sufficient notice at the omnibus
hearing that appellant was challenging the constitutionality of the vehicle stop. A pretrial
suppression motion must specify with reasonable particularity the grounds for suppression,
so that the state has advance notice and can meet its burden at the hearing . State v.
Needham, 488 N.W.2d 294, 296-97 (Minn. 1992). But “[i]n practice, the defense counsel
at the outset of an omnibus hearing often makes a rather general statement of the issues.”
Id. at 296; see also State v. Balduc, 514 N.W.2d 607, 609-10 (Minn. App. 1994) (holding
4
that defense provided prosecutor with suffi cient notice through a letter stating that “all
usual omnibus hearing issues” would be contested). Here, appellant moved to suppress
evidence on the grounds that: (1) the “evidence was obtained in violation of [appellant’s]
constitutional and statutory pr otections against unreasonable searches and seizures,” and
(2) the informant’s tip to the dispatcher “did not possess sufficient indicia of reliability.”
Before the suppression hearing, the state advised the defense that the tip came from a law
enforcement investigator. In response to the state’s disclosure, appellant focused his
argument on the constitutionality of the stop. T hus, the state had sufficient notice of the
issues relating to appellant’s constitutional claims before the hearing.
Next, appellant argues that the district court erred in denying the motion to suppress
because it incorrectly determined that the officer had reasonable, articulable suspicion of
criminal activity to conduct a traffic stop. Both the United States and Minnesota
Constitutions protect individuals against unreasonable searches and seizures. U.S. Const.
amend. IV; Minn. Const. art. I, § 10. The “[t]emporary detention of individuals during the
stop of an automobile by the police, even if only for a brief period and for a limited purpose,
constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].”
Whren v. United States , 517 U.S. 806, 809 -10 (1996) (citations omitted) . Warrantless
seizures are generally unreasonable. State v. Hummel, 483 N.W.2d 68 , 72 (Minn. 1992) .
But a law enforcement officer may initiate a limited, investigatory stop without a warrant
if the officer has a reasonable, articulable suspicion of criminal activity. State v. Munson,
594 N.W.2d 128, 136 (Minn. 1999) (citing Terry v. Ohio , 392 U.S. 1, 22 (1968) ). The
reasonable suspicion showing is “not high,” State v. Bourke, 718 N.W.2d 922, 927 (Minn.
5
2006), but requires more than an unarticulated “hunch,” State v. Timberlake, 744 N.W.2d
390, 393 (Minn. 2008). “Reasonable suspicion must be based on specific, articulable facts
that allow the o fficer to be able to articulate . . . that he or she had a particularized and
objective basis for suspecting the seized person of criminal activity.” State v. Morse, 878
N.W.2d 499, 502 (Minn. 2016) (quotations omitted) . The state bears the burden of proof
at a suppression hearing. State v. Othoudt, 482 N.W.2d 218, 223 (Minn. 1992).
Here, the district court held a contested omnibus hearing on appellant’s motion to
suppress. The arresting police officer testified at the hearing. The officer testified th at he
received a report from dispatch that appellant was in a Walmart parking lot and had an
outstanding arrest warrant. The information came from a law enforcement investigator,
who did not testify. According to the officer, he learned that appellant “was at [Walmart]
and eventually leaving in a vehicle with Red Lake plates.” Appellant argues that the “bare,
non-specific description” of a “vehicle with Red Lake plates” could not establish
reasonable, articulable suspicion of criminal activity. We agree.
Minnesota courts have routinely held that an officer’s decision to stop a vehicle that
is similar to a suspect vehicle “ cannot be considered mere caprice or whim.” State v.
Waddell, 655 N.W.2d 803, 810 (Minn. 2003). In Waddell, the Minnesota Supreme Court
upheld the stop of a vehicle that was “very similar in body style but slightly lighter in color”
to a suspect vehicle. Id. (upholding stop of gray vehicle although crime vehicle was
described as dark blue or black). Similarly, in State v. Yang, the supreme court upheld the
stop of a dark blue Honda, when the suspect vehicle was a black “Honda -type vehicle.”
774 N.W.2d 539, 549, 552 (Minn. 2009). But here, by contrast, the state did not put any
6
evidence into the record about the investigator’s description of the vehicle. The officer did
not testify about color, make, model, or body type of the reported vehicle. Instead, the
officer simply described it as a “vehicle with Red Lake plates.”
The district court order implicitly acknowledges that t he police officer did not
provide an adequate description of the suspect vehicle, because the district court relied on
the complaint—rather than the officer’s testimony at the hearing —to deny the motion to
suppress. The complaint was not part of the record at the suppression hearing.1 The district
court stated:
According to the complaint, [the investigator] told dispatch
that Defendant ‘was in a black Ford Explorer.’ [The arresting
officer’s] squad car video . . . shows what clearly appears to be
a blac k Ford Explorer driving through the parking lot and
heading toward the exit —just as [the i nvestigator] had
described. Thus, when [the arresting officer] activated his
lights to stop the SUV, he knew that [the investigator] had very
recently positively ide ntified Defendant to be in a black Ford
Explorer with Red Lake plates that was beginning to leave
[Walmart]—an exact description of the vehicle that [the
arresting officer] saw driving toward him.
Appellant argues that the district court erred by relying on the assertions in the
complaint in denying the suppression motion. Caselaw supports appellant. A suppression
ruling must be made “[u]pon the record of the evidence elicited” at the suppression hearing.
State ex rel. Rasmussen v. Tahash, 141 N.W.2d 3, 13 (Minn. 1965); see also State v. Cripps,

1 The district court relied on Minn. R. Crim. P. 11.04, subd. 1(c), for the proposition that a
“court may find probable cause based on the complaint or the entire record, including
reliable hearsay.” See, e.g. , State v. Florence , 239 N.W.2d 892, 902 ( Minn. 1976)
(permitting district court to rely on police report in probable-cause challenge). But
appellant did not assert a probable -cause challenge here and instead sought to suppress
evidence arising out of an illegal stop. Rule 11.04, subd. 1(c), does not apply.
7
533 N.W.2d 388, 391 (Minn. 1995) (noting that r easonable suspicion must be “based on
specific, articulable facts” that allow the officer “to articulate at the omnibus hearing that
he or she had a p articularized and objective basis for suspecting the seize d person of
criminal activity”). While the complaint asserted that appellant was in a black Ford
Explorer, the state did not elicit any testimony from the officer at the omnibus hearing
establishing that he was looking for a vehicle of that description. Nor did the state offer
the complaint as an exhibit at the omnibus hearing or call the original investigator to testify
about the vehicle . The district court clearly erred by relying on documents o utside the
record at the suppression hearing.2
If the district court made factual finding s based on information in the complaint ,
those findings are not supported by the record and are clearly erroneous. The district court
made the following factual findings:
At around 8:30 p.m. on September 20, 2019, [the investigator]
reported to Beltrami County dispatch that he had seen
Defendant in a vehicle in the parking lot of the Bemidji
[Walmart] store. [The investigator] knew that Defendant had
an outstanding felony warrant for his arrest. [The investigator]
informed the dispatch operator that Defendant was beginning
to leave the parking lot in a black Ford Explorer with Red Lake
plates. [The police officer] responded to the scene, and as he
entered the [Walmart] parking lot, could see a black Ford

2 We have reached similar decisions in other recent nonprecedential cases. See, e.g., State
v. Winge , No. A20 -1609, 2021 WL 4059319, at *6 n.2 (Minn. App. Sept. 7, 2021)
(declining to consider report from 911 call because district court did not receive pol ice
report into evidence at suppression hearing and confin ing our analysis “to the facts
presented to the district court at the suppression hearing”) ; State v. Miller, No. A20-0558,
2021 WL 1522665, at *6 n.5 (Minn. App. Apr. 19, 2021) (stating that if the district court
made factual findings based on transcript of 911 call, which was not in the record from the
suppression hearing, those findings were not supported by the record and appeared clearly
erroneous).
8
Explorer traveling westbound across the lot, and then turn
southbound and drive directly toward him. [The officer]
immediately activated his emergency lights and stopped the
vehicle. Defendant was a passenger in the vehicle, and
[officers] removed him from the Explorer and placed him
under arrest.
Without the complaint, there is no support in the suppression record for the district
court’s findings that: (1) appellant “was beginning to leave the parking lot in a black Ford
Explorer,” (2) the officer “could see a black Ford Explorer traveling westbound across the
lot, and then turn southbound and drive directly toward him,” or (3) officers removed
appellant “from the Explorer.”
Based on the evidence and testimony presented at the hearing, and without the
factual findings arising from the complaint, it is not clear that the officer had a
particularized and objective basis for the vehicle stop. A district court’s erroneous denial
of a defendant ’s motion to suppress evidence requires an appellate court to reverse and
remand. See, e.g., State v. Carter, 697 N.W.2d 199, 212 (Minn. 2005) (“Because the error
in admitting the seized evidence was prejudicial to appellant, we reverse his conviction and
remand for a new trial.”).3 The district court erred in relying on evidence not in the record.
As a result, we reverse the district court’s suppression order and remand for the district

3 We have remanded in similar situations in other nonprecedential cases. See, e.g., State v.
Vanguilder, No. A19 -1274, 2020 WL 4280044, at *5 (Minn. App. July 27, 2020)
(reversing denial of suppression motion and remanding for further proceedings); State v.
Mattson, No. A18-1145, 2019 WL 2079468, at *4 (Minn. App. May 13, 2019) (remanding
with instructions to consider only the record of evidence elicited at suppression hearing),
rev. denied (Minn. Aug. 6, 2019); State v. Sundrum, No. A13-0506, 2014 WL 502929, at
*7 (Minn. App. Feb. 10, 2014) (determining that defendant was entitled to a new trial when
state introduced unlawfully obtained evidence, and reversing and remanding for further
proceedings).
9
court to consider whether the police officer had a r easonable, articulable suspicion to stop
the vehicle, based solely “[u]pon the record of the evidence elicited” at the suppression
hearing. Tahash, 141 N.W.2d at 13. Because we reverse and remand, we do not reach
appellant’s remaining issues.
Reversed and remanded.