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This opinion is nonprecedential except as provided by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
A20-1609

State of Minnesota,
Respondent,

vs.

Brian Curtis Winge,
Appellant.

Filed September 7, 2021
Reversed and remanded
Cochran, Judge

Beltrami County District Court
File No. 04-CR-20-67

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

David Hanson, Beltrami County Attorney, Ashley A. Nelson, Assistant County Attorney,
Bemidji, Minnesota (for respondent)

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

Considered and decided by Cochran, Presiding Judge; Worke, Judge; and
Slieter, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Appellant Brian Curtis Winge argues that the district court erred by denying his
motion to suppress evidence obtained after police seized him on the basis of an anonymous
2
tip. Because the tip did not have sufficient indicia of reliability to provide police with
reasonable suspicion of criminal activity by Winge, we reverse and remand.
FACTS
Around 2:00 a.m. on January 8, 2020, poli ce received an anonymous call that a man
wearing dark clothes and carrying a large bac kpack had offered drugs to the caller as the
caller walked by the local post office. The caller did not pr ovide their name or any other
identifying information. Two police officers arrived at the post office in their squad car
shortly after receiving the call. After circling the building, the officers saw an individual,
later identified as Winge, in the post office parking lot. Winge was wearing dark clothing
and had a large backpack.
The officers parked the squad car near Winge and approached him on foot. One
officer immediately asked Winge the following questions in quick succession: “What are
you doing?” “Not offering anyone drugs?” “No? Why would someone call and say that?”
“Specifically you.” “What’s your name?” After Winge identified himself, the officer
continued: “No drugs on you at all? Find that hard to belie ve.” Winge then admitted to
having a small amount of methamphetamine in his pocket. During the questioning, two
more officers arrived in another squad car. With Winge’s consent, police searched Winge’s
pocket and located a plastic bag containing a small amount of methamphetamine. Police
then arrested Winge. The st ate charged Winge with felony fifth-degree possession of a
controlled substance.
Later in January 2020, Wi nge moved for an order suppressing all evidence obtained
as a result of the seizure that culminated in his arrest “on the grounds [that] law enforcement
3
lacked reasonable articulable su spicion to initiate a seizure.” The district court held a
hearing on Winge’s motion to suppress. Only one witness testified at the hearing—the
officer who questioned Winge when police arrived at the post office. Through that witness,
the state introduced footage from the officer’s body-worn ca mera showing the officer’s
interaction with Winge and Winge’s subsequent arrest.
At the hearing, Winge’s counsel argued th at Winge “was seized within just a few
seconds of law enforcement having initial contact with him.” Winge’s counsel then argued
that the seizure was not supported by reasonable suspicion of criminal activity because the
anonymous caller’s tip was not corroborated and the tip lacked sufficient indicia of
reliability. The state argued that the district court should deny Winge’s motion because he
was not seized when he admitted to possessing methamphetamine. The district court took
the matter under advisement.
In an order filed March 27 , 2020, the district court denied Winge’s motion to
suppress. The district court concluded that Winge was seized when the officer started
asking him questions, noting that an objectively reasonable person in Winge’s situation
would not have felt free to terminate the encounter. The district court then determined that
the officers had a specific and articulable ba sis to suspect Winge of being involved in
criminal activity, and thus the investigative seizure of Winge was reasonable.
After the district court denied Winge’s motion to suppress, the parties agreed to
proceed with a bench trial on stipulated evidence pursuant to Minnesota Rule of Criminal
Procedure 26.01, subdivision 4. Winge decided to proceed in this manner to preserve the
suppression issue for appeal. In September 2020, the district court entered its Findings of
4
Fact, Conclusions of Law, and Verdict of Guilt and adjudicated Winge guilty of
gross-misdemeanor fifth-degree possession of a controlled substance. Winge now appeals
the district court’s denial of his motion to suppress.
DECISION
Winge argues that the district court e rred by denying his moti on to suppress the
evidence obtained as a result of his seizure because police lacked reasonable, articulable
suspicion of illegal activity to stop him. “When considering the denial of a pretrial motion
to suppress, we review the district court’s factual findings for clear error and its legal
conclusions de novo.” State v. Edstrom, 916 N.W.2d 512, 517 (Minn. 2018). Because the
parties in this case do not contest the district court’s factual findings, we review only the
district court’s legal conclusions. State v. Flowers, 734 N.W.2d 239, 248 (Minn. 2007).
In conducting our de novo review, our analysis focuses on whether Winge was
subject to an unconstitutional seizure. Both the United States and Minnesota Constitutions
safeguard against “unreasonable searches an d seizures.” U.S. Const. amend. IV; Minn.
Const. art. I, § 10. “A police officer may stop and temporarily seize a person to investigate
that person for criminal wrongdoing if the officer reasonably susp ects that person of
criminal activity.” State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). “To reasonably
suspect a person of criminal ac tivity, the officer’s suspicion must be based on specific,
articulable facts.” Id.
With this constitutional framework in mind , we consider first whether Winge was
“seized.” We next consider whether the officers had a reasonable, articulable suspicion of
criminal activity to support the seizure. And, finally, we consider whether the district court
5
correctly denied Winge’s motion to suppress the evidence obtained as a result of his
seizure.
I. The district court properly co ncluded that Winge was seized.
The district court concluded that police seized Winge. The parties do not challenge
this conclusion. Based on our independent re view, we agree with the district court that
Winge was seized. See State v. Hannuksela , 452 N.W.2d 668, 673 n.7 (Minn. 1990)
(requiring appellate courts “to decide cases in accordance with law” even when the parties
do not raise an issue).
“A seizure occurs when the officer, by means of physical force or show of authority,
has in some way restrained the liberty of a citizen.” Cripps, 533 N.W.2d at 391 (quotation
omitted). A person has been “seized” if an ob jective, reasonable person in the same
position would conclude, under the totality of the circumstances, that they were not free to
terminate an encounter with law enforcement. In re Welfare of E.D.J. , 502 N.W.2d 779,
783 (Minn. 1993). Generally, a reasonable pers on would not believe that they have been
seized merely because a police officer “approaches that person in a public place and begins
to ask questions.” Cripps, 533 N.W.2d at 391. But a person may be seized when a police
officer approaches them and immediately begins to ask them questions aimed at
determining whether they have committed a criminal offense. Id.
In reaching its conclusion that Winge was seized, the district court relied on Cripps.
In Cripps, an officer approached the defendant while she was drinking at a bar and asked
to see her identification. Id. at 390. The supreme court re asoned that when the officer
asked to see the defendant’s identification, th e officer was asking her “to prove that she
6
was of legal age to consume alcohol.” Id. at 391. Thus, the supreme court concluded that
“an objectively reasonable person would have be lieved that he or she was neither free to
disregard the officer’s request nor free to term inate the encounter, knowing that he or she
was being asked to prove his or her innocence of the crim e of underage consumption of
alcohol.” Id.
Here, two police officers approached Wi nge in the post office parking lot. The
officers approached on foot wearing their st andard issued uniforms and gear, including
visible weapons. As noted, one officer immediately barraged Winge with questions about
whether he had offered anyone drugs and whether he had any drugs in his possession. Two
more officers arrived less than a minute after the first two ap proached Winge. Similar to
Cripps, police immediately asked Winge if he had committed a criminal act. Considering
the nature of the questions, th e tone of voice used, and the proximity of the officers to
Winge, a reasonable person in Winge’s situation would not have felt free to disregard the
officer’s questions or terminate the encounter. Accordingly, the district court correctly
determined that police seized Winge when they conducted the investigative stop of Winge
in the post office parking lot. The questi on becomes whether that investigative stop was
reasonable.
II. The district court erred by concluding that police had reasonable, articulable
suspicion to stop Winge.
Police may conduct a limited stop to investigate suspected criminal activity if they
can point to specific, articulable facts that reasonably warrant the intrusion. In re Welfare
of M.D.R., 693 N.W.2d 444, 448 (Minn. App. 2005), review denied (Minn. June 28, 2005).
7
“A determination of whether the police have reasonable suspicion . . . is based on the
totality of the circumstances.” Id.
Here, officers relied solely on the anonymou s tip as the basis for the investigative
stop of Winge. The officers who seized Winge did not identify any other facts as the basis
for the stop. At the suppression hearing, the officer who testified explained that, when he
approached Winge, he immediately began questioning Winge about drugs because he
wanted to “[s]ave time.” The police officer st ated that it was 2:00 a.m. and “not a lot of
[officers] get calls [about] people just randomly offering” drugs. Accordingly, to the extent
the officers reasonably suspected Winge of criminal activity, they did so based on the
anonymous tip alone.
“[P]olice can base an investigative stop on an informan t’s tip if it has sufficient
indicia of reliability.” In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn. 1997). Whether
a tip supplies police with the requisite indicia of reliability to justify reasonable suspicion
for an investigative stop depends on two fact ors: (1) identifying information provided by
the informant, and (2) objective facts that provide a basis for the citizen-informant’s belief
that the suspect is engagi ng in illegal behavior. Rose v. Comm’r of Pub. Safety ,
637 N.W.2d 326, 328 (Minn. App. 2001), review denied (Minn. Mar. 19, 2002). Neither
factor is dispositive alone. Id. “[T]he determination of whether the officer had a reasonable
suspicion of criminal activity at the time of the stop is based on the totality of the
circumstances.” Id.
Regarding the first factor, the reliability of a tip is en hanced when the informant
provides information that would allow police to id entify the informant. City of
8
Minnetonka v. Shepherd, 420 N.W.2d 887, 890 (Minn. 1988). The informant need not give
their name as long as they provide police with sufficient information so that the police have
“a way to locate the caller and hold him accoun table if he was knowingly providing false
information.” Id. Even when a caller provides very little specific identifying information,
a tip can be reliable if police are able to corroborate that the caller is who they say they are.
Marben v. State, Dep’t of Pub. Safety , 294 N.W.2d 697, 699 (Minn. 1980). And a
face-to-face tip is more reliable than a ca lled-in tip because th e informant can be
held accountable for giving false information. State v. Davis , 393 N.W.2d 179, 181
(Minn. 1986).
Regarding the second factor, even an anonymous tip can pr ovide reasonable
suspicion if the informant provides “specific and articulable facts to support the bare
allegation of criminal activity.” Olson v. Comm’r of Pub. Safety , 371 N.W.2d 552, 556
(Minn. 1985). The United States Supreme Court has concluded that an anonymous tip can
justify an investigative stop when the tip pr ovides predictive information that the police
can corroborate. Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 2417 (1990). And,
even without predictive information, a tip justifies an investigative stop where it bears other
adequate indicia of reliability such as firsth and observation of crim inal activity, a report
that is roughly contemporaneous with the obse rved activity, and the tipster’s use of the
911 emergency system. Navarette v. California, 572 U.S. 393, 399-401, 134 S. Ct. 1683,
1689-90 (2014). But a tip that merely identifies a specific person without providing police
means to corroborate the accusation of wrongdo ing does not bear sufficient indicia of
reliability. Florida v. J.L., 529 U.S. 266, 272, 120 S. Ct. 1375, 1379 (2000).
9
In J.L., an anonymous caller reported to police that a young Black man standing at
a particular bus stop wearing a plaid shirt was carrying a gun. Id. at 268, 120 S. Ct. at
1377. An unknown amount of time later, police arrived at the bus stop and saw three Black
men standing in the area. Id. One of the men, J.L., wore a plaid shirt. Id. Police
approached the three men, frisked all of them, and found a gun on J.L. Id. The state argued
that the tip was reliable because it accurately described the individual accused of criminal
activity. Id. at 271, 120 S. Ct. at 1379. The Supr eme Court rejected this argument, and
explained:
An accurate description of a subject’s readily
observable location and appearance is of course reliable in this
limited sense: It will help th e police correctly identify the
person whom the tipster means to accuse. Such a tip, however,
does not show that the tipster has knowledge of concealed
criminal activity. The reasona ble suspicion here at issue
requires that a tip be reliable in its assertion of illegality, not
just in its tendency to identify a determinate person.

Id. at 272, 120 S. Ct. at 1379 (emphasis a dded). Accordingly, the Supreme Court
concluded that an anonymous tip that was nothing more than a “bare report of an unknown,
unaccountable informant who neither explained how he knew about the gun nor supplied
any basis for believing he had inside informa tion” was not sufficien tly reliable in its
assertion of illegality to support the stop and frisk. Id. at 271, 120 S. Ct. at 1379.
Based on this United States Supreme Court precedent, Winge argues that the tip at
issue in this case did not have sufficient i ndicia of reliability to give police reasonable
suspicion to seize him. Winge emphasizes that the tip contained no predictive information
of future behavior that could be corroborated by police, the anonymous caller did not claim
10
to have seen any drugs, there is no direct information in the record to demonstrate that the
report was contemporaneous with the alleged offer of drugs, and the state produced no
evidence that the informant used the 911 emergency system to make the report. The state
counters that the tip was reliable because th e informant accura tely described Winge, the
caller made the report based on an offer of drugs made directly to them. The state also
asserts that the police responded to the call minutes after it wa s made to the police
“dispatch” system.
To evaluate the reliability of the anonymous tip at i ssue here, we find additional
guidance from the Minnesota Supreme Court’s decisions in Marben and Olson. In Marben,
a state patrol trooper received a message from an unidentified trucker via a citizen’s band
radio communication. 294 N.W.2d at 698. The trucker told the trooper that a car had been
tailgating the trucker for the last 60 to 70 miles. Id. The trooper did not get the trucker’s
name, but he was able to verify that the trucker was in the area, and consequently had been
in close proximity to the ta ilgating car at the time the trooper received the report. Id. at
699. The trooper located the car described by the trucker and stopped it, despite the trooper
not personally observing improper driving. Id. at 698. In reviewing the reliability of the
tip, the supreme court noted th at information from a private citizen is presumed to be
reliable. Id. at 699. The Minnesota Supreme Court also noted that th e reliability of the
trucker’s communication was “enhanced” by the fact that the trooper was able to verify
that the trucker was in cl ose proximity to the car. Id. Accordingly, the supreme court
concluded that the trooper “had a specific and articulable suspicion that a traffic violation
had occurred” to warrant a stop of the car based on the trucker’s report of tailgating. Id.
11
Conversely, in Olson, the Minnesota Supreme Court concluded that an anonymous
tip received by police lacked sufficient indicia of reliability to support a reasonable,
articulable suspicion of criminal activity. In Olson, deputies out on patrol received a radio
dispatch alerting them that “a citizen had called in reporting that he observed a—possibly
drunken driver.” 371 N.W.2d at 553. The caller described the vehicle, which the deputies
located and stopped despite not independen tly observing any erratic driving. Id. Like in
Marben, the report came from a private citizen and was presumed reliable. Id. at 555. But
the supreme court did not rest on this presumption. Instead, the supreme court explained
that the tip “must have indicia of reliability,” and concluded that it did not. Id. at 556. The
supreme court noted that there was no information about the informant, and no information
about what the informan t saw that led the informant to be lieve that the car’s driver was
“possibly” drunk. Id. The supreme court emphasized that “[i]t would have been a simple
matter for the dispatcher to have elicited some minimal specific and articulable facts from
the anonymous caller to su pport the caller’s bare assertion of a possibly drunk driver on
the road.” Id. The supreme court concluded that to stop a driver on the basis of a tip alone,
“the anonymous caller must provide at least some specific and articulable facts to support
the bare allegation of criminal activity.” Id. With this United St ates Supreme Court and
Minnesota Supreme Court precedent in mind , we consider whether police reasonably
suspected Winge of criminal activity based on the anonymous tip when they seized him.
Here, an anonymous caller contacted polic e around 2:00 a.m. The caller provided
no identifying information. The caller reported that a man had offered drugs to the caller
when the caller walked by the post office. The caller re ported that the man was wearing
12
dark clothes and had a large backpack. The caller did not report any other details. Police
arrived approximately four minu tes after receiving the call. The officers initially circled
the post office building and saw no one. When the officers entered the post office parking
lot, they saw Winge wearing dark clothing and carrying a large backpack. The post office
is not open at 2:00 a.m. The officers imme diately exited the squad car and confronted
Winge.
Based on this record, we conclude that the anonymous tip lacked sufficient indicia
of reliability to give the offi cers reason to suspect Winge of criminal activity. First, the
caller provided no information that the police could use to identify, or even find, the caller.
See Shepherd, 420 N.W.2d at 890 (concluding inform ant who told police he worked at a
specific gas station gave police means of holding him accountable for providing false
information). The caller was completely anonymous. Second, the tip was a bare allegation.
The caller alleged only that Winge offered them drugs. The caller did not claim that they
saw any drugs in Winge’s possession. Nor did the caller provide any other information to
corroborate the allegation. Further, the caller did not provide any predictive information
that would show that the caller was familiar w ith Winge’s activities. Like the tip at issue
in Olson, the tip here lacked “e ven the most minimal indicia of reliability.” See
371 N.W.2d at 556. Consequently, the officers lacked reasonable, articulable suspicion to
seize Winge on the basis of the tip.
13
Our conclusion is reinforced by the Third Circuit’s decision in United
States v. Roberson, 90 F.3d 75 (3d Cir. 1996). 1 In Roberson, an anonymous informant
called 911 and reported that “a heavy-set, black male weari ng dark green pants, a white
hooded sweatshirt, and a brown leather jacket was selling drugs” on a certain city block
known by police to be a “hot spot” for drug activity. 90 F.3d at 75-76. Police officers
arrived at the block about 30 to 40 seconds after the inform ant’s tip was relayed to them
over the radio. Id. at 76. Upon arriving, the officers “saw a man meeting the tipster’s
description standing on the corner.” Id. Despite not observing any “indicia of drug
activity,” the officers exited their car and approached the man with guns drawn. Id. The
Third Circuit concluded that the tip did not provide reasonable suspicion for the officers to
stop the man. Id. at 79.
In reaching this conclusion, the court acknow ledged that the officers were able to
corroborate much of the information provided by the informant. Id. But the tip did not
provide reasonable suspicion b ecause the informant’s descri ption, while accurate, was
comprised entirely of facts that existed at the time of the call. Id. Because the tip lacked
any predictive information, any basis for assessing the reliability of the informant, and any
basis for assessing “the grounds on which the informant believed that a crime was being
committed,” the tip alone did not justify the investigative stop of the described suspect. Id.
at 80. The Third Circuit concluded that wh ere police “receive a fleshless anonymous tip

1 The Third Circuit’s decision in Roberson is not binding on this court, but we find the
decision persuasive on the issue of whethe r an anonymous tip provides a reasonable,
articulable suspicion of criminal activity.
14
of drug-dealing that provides only readily observable information, and they themselves
observe no suspicious behavior,” the police are not justified in conducting an investigative
stop. Id. “To hold otherwise would work too great an intrusion on the Fourth Amendment
liberties, for any citizen could be subject to police detention pursuant to an anonymous
phone call describing his or her present loca tion and appearance and representing that he
or she was selling drugs.” Id. Similarly, in this case, police relied on a “fleshless
anonymous tip of drug-dealing” and did not testify to observing any suspicious behavior
by Winge prior to seizing him. Accordingl y, the tip failed to provide police with a
reasonable, articulable suspicion of criminal activity by Winge.
We are not persuaded otherw ise by the state’s reliance on Navarette and
State v. Balenger, 667 N.W.2d 133 (Minn. App. 2003), review denied (Minn. Oct. 21,
2003), to argue that police were justified in stopping Winge. In Navarette, police received
a tip from a 911 caller that the driver of a pickup truck had just run the caller off the
highway. 572 U.S. at 395, 134 S. Ct. at 1686-87. A police officer encountered the
described truck approximately 20 minutes later and stopped it. Id., 134 S. Ct. at 1687. The
United States Supreme Court concluded that the tip provided reasonable suspicion
justifying the stop because the caller provided a basis for police to conclude that the caller
had eyewitness knowledge of the reported da ngerous driving, the caller’s report was
roughly contemporaneous with the incident, and the caller used the 911 emergency system
to make the report. Id. at 399-401, 134 S. Ct. at 1689-90.
There are important differenc es between this case and Navarette. Unlike the
eyewitness observation of erratic driving in Navarette, the anonymous caller here did not
15
claim to have seen Winge in possession of any contro lled substances. And unlike
Navarette, the record here does not show that the caller used the 911 emergency system to
make their report. The state implies that the caller did so but produced no evidence either
of the call itself or the circum stances under which it was placed. 2 Accordingly, the state
cannot rely on the alleged use of the 911 emer gency system to augment the reliability of
the anonymous tip here.
Balenger is also distinguishable from the cu rrent case in important ways. In
Balenger, a woman tapped a police officer on the shoulder and told the officer that someone
had just pointed a gun at her fri end. 667 N.W.2d at 136. As noted ab ove, a face-to-face
interaction between an informant and the police augments the reliability of the tip. Davis,
393 N.W.2d at 181. Unlike in Balenger, there was no face-to-face interaction between the
informant and the police in this case. Second, a tip that a person has just threatened
someone with a gun creates a greater public safe ty concern than a tip solely about drugs.
As the Balenger court stated, “[t]he element of imminent danger distinguishes a tip that a
person is armed from one invol ving, for example, the possession of drugs.” 667 N.W.2d
at 138. Accordingly, neither Navarette nor Balenger persuades us that the officers had
reasonable suspicion to stop Winge based on the bare tip provided by the anonymous caller.

2 The state suggests in its brief that the caller used the 911 emergency system to make the
report and appears to rely on the police report to support this assertion. But the district
court did not receive the police report into evid ence at the suppression hearing. We must
confine our analysis to the fact s presented to the district cour t at the suppression hearing.
See State ex rel. Rasmussen v. Tahash , 141 N.W.2d 3, 13 (Minn. 1965) (requiring
suppression motion to be deci ded “[u]pon the record of th e evidence elicited” at the
suppression hearing).
16
In sum, the anonymous tip here is much closer to the tips addressed in J.L., Olson,
and Roberson, which were found to lack sufficient indicia of re liability, than the tips at
issue in Navarette and Balenger. Here, the caller did not give police any self-identifying
information. Nor did the ca ller provide any pred ictive information about Winge that
showed familiarity with him be yond circumstances that existe d at the time of the call.
Finally, the officers did not corroborate any details regarding the alleged illegal activity
prior to the seizure of Winge. Because the tip did not bear sufficient indicia of reliability,
and the state has no other basis to justify the investigative stop, the officers lacked
reasonable, articulable suspicion to seize Winge.
III. The district court erred by denying Winge’s motion to suppress.
Lastly, we consider whether the district court properly denied Winge’s motion to
suppress evidence obtained during the investigative stop. Evidence obtained as a result of
an investigative stop that is not justified by reasonable, articulable suspicion of criminal
activity must be suppressed. State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011). Because
the officers’ investigative stop of Winge wa s not supported by reasonable, articulable
suspicion of criminal activity , the district court erred by denying Winge’s motion to
suppress. Accordingly, we reverse the district court’s denial of Winge’s motion to suppress
and remand this case to the district court.
Reversed and remanded.