State of Minnesota v. Drew Douglas Wiskow Davis

This opinion is nonprecedential except as provided by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
A23-0755

State of Minnesota,
Respondent,

vs.

Drew Douglas Wiskow Davis,
Appellant.

Filed April 15, 2024
Reversed
Slieter, Judge

Washington County District Court
File No. 82-CR-22-1441

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

Kevin M. Magnuson, Washington County Attorney, Andrew T. Jackola, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Adam G. Chandler, Special Assistant Public Defender, Taft Stettinius & Hollister LLP,
Minneapolis, Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Slieter, Judge; and Schmidt,

Judge.

NONPRECEDENTIAL OPINION

SLIETER, Judge

In this direct appeal from judgments of conviction of unlawful possession of

ammunition, receiving stolen property, and check forgery, appellant argues that the district
court erred in denying his pretrial motion to suppress evidence obtained during an illegal

seizure. Because the officer failed to articulate a reasonable suspicion of criminal activity,

the seizure of appellant was illegal, and we reverse.

FACTS

Respondent State of Minnesota charged appellant Drew Douglas Wiskow Davis

with possession of ammunition in violation of Minn. Stat. § 624.713, subd. 1(2) (2020);

receiving stolen property in violation of Minn. Stat. § 609.53, subd. 1 (2020); and check

forgery in violation of Minn. Stat. § 609.631, subd. 3 (2020).

Davis filed a pretrial motion to suppress all evidence obtained from his encounter

with law enforcement, claiming the officer seized him without a reasonable, articulable

suspicion of criminal activity.

The following facts derive from the suppression hearing. In April 2022, law

enforcement received a citizen report that “a black man and white woman were sitting in a

black [Chevrolet] Suburban SUV and smoking something” in a Walgreens parking lot.

The caller provided a license plate number for the vehicle and “stated that the female was

acting erratically.”

The responding officer ran a check of the license plate prior to his arrival and found

that the “[p]late given [by the informant] did not match the vehicle description” because it

was registered to “a blue GMC Yukon” rather than the black Chevrolet Suburban that was

reported by the informant.

Upon arriving at Walgreens, the responding officer observed a vehicle matching the

description provided in the citizen report. The officer approached the parked vehicle and

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observed a male in the driver’s seat and a “visibly upset” female in the passenger seat, but

it “was unknown at that point” whether the female was in danger. The officer did not smell

anything consistent with burning illegal substances. Still, the officer gestured for the driver

to roll his window down, which he did.

The officer asked the driver and passenger for identification. Before either could

provide identification, the officer asked the driver to step out of the vehicle. Instead of

exiting the vehicle, the driver fled the scene in the vehicle, leading the officer on a ten-mile

chase. The driver was later apprehended, and the evidence supporting the charges was

located during a subsequent search of the vehicle.

The district court denied the suppression motion, finding that the officer “had a basis

for the initial seizure” and that “even if there was no basis for the initial seizure, [Davis’]

act of fleeing in the vehicle was an independent and intervening circumstance that purged

the taint of an illegal seizure.”

Following a stipulated-facts trial, the district court found Davis guilty of all three

counts. The district court convicted Davis and executed concurrent prison sentences for

each count, which resulted in a total of 40 months’ imprisonment.

Davis appeals.

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 DECISION

I. The officer failed to articulate a reasonable suspicion of criminal activity to
support a seizure of Davis.

We review a district court’s factual findings in a pretrial suppression order under a

clearly erroneous standard. State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008). Whether

a seizure is justified by reasonable suspicion of criminal activity is reviewed de novo. State

v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005).

Evidence obtained during an unconstitutional stop or seizure must be suppressed,

but an officer may conduct a limited stop without offending the constitution if the officer

has a reasonable, articulable suspicion of criminal activity. State v. Timberlake, 744

N.W.2d 390, 393 (Minn. 2008). Although the standard for demonstrating reasonable,

articulable suspicion is “not high,” officers “must articulate a particularized and objective

basis for suspecting the particular person stopped of criminal activity.” Id. (quotations

omitted). Thus, “[a] hunch, without additional objectively articulable facts,” is not enough.

State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011). We consider the totality of the

circumstances when determining whether an officer had reasonable, articulable suspicion

of criminal activity supporting the seizure. State v. Davis, 732 N.W.2d 173, 182 (Minn.

2007).

The parties agree that Davis was seized when the officer asked Davis for his

identification and to step out of the vehicle. They disagree, however, about whether the

officer articulated reasonable suspicion of criminal activity at the point of seizure.

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 Davis claims that the information that the officer possessed at the time of the seizure

was limited to the citizen report—which did not allege criminal activity—and, therefore,

the officer lacked reasonable, articulable suspicion to support the seizure. We agree.

A citizen-informant enjoys a presumption of credibility. State v. Jones, 678 N.W.2d

1, 12 (Minn. 2004). However, the information “must provide at least some specific and

articulable facts to support the bare allegation of criminal activity” if it is to form the sole

basis of the seizure. Olson v. Comm’r of Pub. Safety, 371 N.W.2d 556, 556 (Minn. 1985).

Here, the citizen reported that two individuals were “smoking something” and that one of

them was “acting erratically.” When the officer arrived on scene, he did not smell anything

suggesting that something illegal had been smoked. Therefore, the citizen report, alone,

did not provide the officer with reasonable, articulable suspicion supporting Davis’ seizure.

During the officer’s direct examination, he stated that Davis’ seizure was based on

the citizen report. No additional facts were developed at the suppression hearing regarding

the officer’s basis for seizing Davis.

During cross-examination, the following colloquy occurred:

Q: Okay. When you approached the vehicle the person in the
driver’s seat appeared awake and alert, correct?
A: Correct.

Q: And, similarly, with the passenger, she seemed awake and
alert and not in any apparent danger, correct?
A: No. She was visibly upset and crying. So, I –

Q: You classify that as danger?
A: No.

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 Q: Okay. So, then the answer to my question that she didn’t
appear to be in danger would be, no, she didn’t appear in
danger, correct?
A: It was unknown at that point.

....

Q: Okay. Your report does not indicate smelling anything
consistent with, say, burning illegal substances, correct?
A: Correct.

Q: Okay. In fact, your report doesn’t make any mention of the
scent of even burning tobacco, correct?
A: Correct.

....

Q: You, yourself, saw no violations of any law when you
encountered Mr. Davis behind the wheel, correct?
A: Correct.

Q: But yet you initiated the contact?
A: Correct.

....

Q: Where is the suspicion then, Officer?
A: It’s in what the caller told us and they – in doing so they –
it’s our job to go investigate that further to see if there is
criminal activity.

Q: But you said you saw none as you approached the vehicle,
correct?
A: Correct.

There was no redirect by the prosecutor.

Here, the officer articulated no objective basis to suspect criminal activity to support

the seizure of Davis. See State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (“The officer

must be able to articulate at the omnibus hearing that he or she had a particularized and

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objective basis for suspecting the seized person of criminal activity.”). Instead, the officer

specifically admitted during cross-examination that his suspicion was based on the citizen

report, which, as we have already explained, contained no facts suggesting Davis was

engaged in criminal activity. The officer testified that he observed no illegal conduct

during the interaction but was instead investigating the citizen report. Timberlake, 744

N.W.2d at 393 (“Police must be able to articulate more than an inchoate and

unparticularized suspicion or hunch of criminal activity.” (quotations omitted)). Because

the officer failed to articulate an objective basis for suspecting Davis of criminal activity,

the seizure was illegal. 1

II. The act of Davis fleeing is not an intervening circumstance that purged the
state of an illegal seizure.

The exclusionary rule provides that evidence seized in violation of the constitution

generally must be suppressed. State v. Jackson, 742 N.W.2d 163, 178 (Minn. 2007).

Whether the exclusionary rule prohibits the admission of evidence in a particular case is a

question of law reviewed de novo. State v. Askerooth, 681 N.W.2d 353, 359 (Minn. 2004).

There are several factors to consider when determining whether evidence is fruit of

the poisonous tree, including:

(1) the purpose and flagrancy of the officer’s misconduct,
(2) the presence of intervening circumstances, (3) whether it is
likely the evidence would have been obtained in the absence of

1
The state did not argue before the district court, nor before this court, that mismatched
license plates formed the basis of illegal conduct. See, e.g., Diede, 795 N.W.2d at 845
(“Using license plates on any vehicle other than the one to which it is registered is a
misdemeanor that could be a sufficient basis for a traffic stop.”). During oral argument,
counsel for the respondent explained that ownership of the vehicle used by Davis was a
cause of confusion and, in any event, was not known by the officer when Davis was seized.

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 the illegality, and (4) the temporal proximity of the illegality
and the evidence alleged to be the fruit of the illegality.

State v. Bergerson, 659 N.W.2d 791, 797 (Minn. App. 2003) (citing State v. Warndahl,

436 N.W.2d 770, 776 (Minn. 1989)). Because “we must balance all of these factors,” we

consider each in turn. Id. (“No single factor is dispositive.” (citing State v. Weekes, 268

N.W.2d 705, 709 (Minn. 1978))).

Purpose and Flagrancy of the Misconduct

The conduct of the officer was not particularly flagrant. Because the officer lacked

reasonable suspicion, the seizure of Davis was illegal, which is precisely the type of

conduct that the exclusionary rule is intended to prevent. Id. at 798. This factor favors

suppression.

Presence of Intervening Circumstances

Resisting arrest and flight from an officer, even if prompted by an illegal arrest, may

be “intervening circumstances sufficient to purge the illegality of its primary taint.” State

v. Ingram, 570 N.W.2d 173, 178 (Minn. App. 1997), rev. denied (Minn. Dec. 22, 1997).

However, fleeing without confrontation involving physical resistance to arrest, is

insufficient to purge the state of its illegal conduct. Bergerson, 659 N.W.2d at 798

(“Bergerson’s flight, without physical resistance, did not present an intervening

circumstance sufficient to purge the taint of illegality.”).

The record indicates that Davis shut the door and slowly reversed the vehicle,

avoiding the officer’s squad car which was partially obstructing the rear driver side of the

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vehicle, and then fled. Davis did not physically confront or interfere with the officer and,

instead, merely fled. This factor favors suppression.

Likelihood of Discovery Without the Illegality

Without the illegal seizure, it is unlikely that the state would have discovered the

illegal weapon or the evidence of receiving stolen property and check forgery. 2 This factor

favors suppression.

Temporal Proximity

“A close temporal proximity favors exclusion.” State v. Olson, 634 N.W.2d 224,

229 (Minn. App. 2001). Davis and the evidence obtained were apprehended immediately

following his flight. This factor favors exclusion.

Upon balancing the four factors, we conclude that the evidence was the fruit of the

poisonous tree, and Davis fleeing did not create an intervening circumstance that purged

the state of its illegal seizure.

Reversed.

2
We note that the state did not argue inevitable discovery on appeal. Given Davis’ flight
that resulted in a high-speed chase exceeding 100 miles per hour, police likely had
independent probable cause to arrest Davis for reckless driving. Once lawfully arrested,
the state may have had an argument for inevitable discovery of the otherwise illegally
seized evidence. See State v. Robb, 605 N.W.2d 96, 104 (Minn. 2000) (citing Nix v.
Williams, 467 U.S. 431, 444 (1984)) (explaining the inevitable-discovery doctrine and
noting that “[o]nce a vehicle is in police custody, warrantless inventory searches are
constitutional”). But respondent did not argue—or even mention—the
inevitable-discovery doctrine as a separate basis to affirm and, therefore, that argument is
forfeited. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

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