COURT OF APPEALS OF THE STATE OF MINNESOTA

State of Minnesota v. Bernard Connie

UNPUBLISHED OPINION

Appellant challenged his conviction of fifth-degree controlled-substance sale, arguing that the district court erred by denying his motion to suppress a pistol and marijuana that officers discovered during a search of appellant. The district court held that the search was lawful, relying on the consent and search-incident-to-arrest exceptions to the warrant requirement. Because the state did not meet its burden of establishing that appellant’s consent was voluntary and because the search was not a valid search incident to arrest, the court held that the search was illegal. The court reversed and remanded.

Officers observed Connie and three other males “loitering” on a street corner in Minneapolis.  Officers parked their unmarked squad car approximately one block away and observed what appeared to be a drug transaction between Connie and another male.  Officers approached the males shortly thereafter with weapons drawn and ordered them to put their hands in the air.

After Connie complied, Blackmon asked Connie for permission to search him for “guns, knives [or] drugs.” Connie replied “yes,” and he told the officer that he was carrying a pistol in his waistband and claimed he had a permit to carry the firearm.

The officer reached into Connie’s waistband and removed the firearm. He then handcuffed Connie and told him he was under arrest. The officer continued to search Connie and discovered cash and five baggies of marijuana during the process. Connie was subsequently charged with fifth-degree controlled-substance crime.

Connie moved to suppress the firearm and marijuana on the grounds that the search violated his Fourth Amendment constitutional right to be free from unreasonable search and seizure. The district court denied the motion and Connie was subsequently convicted and later appealed.

The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution prohibit the unreasonable search and seizure of “persons, houses, papers, and effects.” Warrantless searches are per se unreasonable, subject to limited exceptions.  To justify a warrantless search based on consent, the state must prove that the consent was freely and voluntarily given. Consent must be received, not extracted.

In the analysis, the court considered the “totality of the circumstances” surrounding the giving of consent in this case which led the court to conclude the state did not satisfy its burden of proving that Connie’s consent was voluntary. The court observed that Connie was standing on a street corner when, without warning, four law-enforcement officers pulled up to the corner and exited their vehicle with guns drawn. They identified themselves as police officers and instructed Connie and his companions to put their hands up in the air. An officer then directed Connie to turn away from the officer and to place his hands on a fence. As Connie stood with his back to the officer and with his hands up against the fence, the officer asked to search Connie for “guns, knives or drugs.” The court concluded that a reasonable person would not have felt free to decline the officer’s request or to otherwise terminate this encounter. The court further concluded that the officer’s immediately ensuing request for Connie’s consent to a search was not severable or distinguishable from the multiple commands that preceded it. The court was not persuaded that the facts that the officer had holstered his gun and used “a calm voice” eliminated the coercive nature of the encounter.

State of Minnesota  v. Bobby Vang

UNPUBLISHED OPINION

Appellant challenges his conviction of felony firearm possession by an ineligible person, arguing that the district court should have suppressed the evidence as the product of an illegal search and seizure. Because the search of the car that resulted in the discovery of the firearm was supported by a reasonable, articulable suspicion, the court affirms

Vang was the passenger seated in the backseat behind the driver.  As officers in a marked squad car passed the vehicle driving in the opposite direction, the driver raised his left arm and shielded his face with his hand.  Officers found that behavior suspicious and turned to follow the vehicle.  As the squad turned, the vehicle made an abrupt turn without signaling.  The officers initiated a stop and the vehicle pulled over immediately.  Officers ran the license plate and found the registered owner to be a gang member with a violent history.  As officers approached the vehicle they observed Vang make “unusual leaning movement to his right” as if he were “digging behind his back with his left arm.”  Officers ordered all four occupants to exit the vehicle.  Upon searching the vehicle officers found a handgun behind the seat where Vang was seated.  Vang was charged with felony possession of a firearm by an ineligible person.  He was sentenced to 36 months in prison.

Appellant argues that the search of the vehicle in which he was a passenger, and the seizure of his gun, violated his rights under both constitutions, and that the district court was therefore required to suppress the gun as evidence in the state’s case against him.

Although U.S. Supreme Court cases have cast doubt on whether the Fourth Amendment still requires reasonableness under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), during a “very minor” traffic stop when the stop is supported by probable cause, the Minnesota Constitution independently requires that the Terry framework be used to evaluate “the reasonableness of seizures during traffic stops even when a minor law has been violated.”

After an exhaustive analysis of Terry, the court affirmed the conviction reasoning that Vang made “suspicious movements” as they approached the vehicle.  The driver as well, by shielding his face.  Further, the court found that the driver’s gang affiliation as well as Vang’s clothing matched that typically worn by Crips gang members as relevant.  Finally, the stop occurred in a high crime area raising officer’s suspicion.  The court reasoned that although no single act may be sufficient alone, a Terry analysis considers the “totality of the circumstances.”  Vang’s conviction affirmed.

State of Minnesota v. Antonio Collins

UNPUBLISHED OPINION            

On appeal from his conviction of third-degree controlled substance crime, appellant argues that the prosecutor committed prejudicial misconduct by inflaming the passion and prejudices of the jury during closing argument. The court affirms.

Appellant objected to the following remark made by the prosecutor in his closing statement:

“Dealing with what this case is about from the police perspective, it must be–seem like an insurmountable difficult task at times to try to have a significant impact on street-level drug dealing, to be able to feel like they can make a significant dent in that particular problem.”

For prosecutorial misconduct that is objected to at trial, the standard of review varies based on the severity of the perceived misconduct.” If the misconduct is less serious, the court determines whether it “likely played a substantial part” in influencing the jury. Although appellant concedes that the alleged misconduct is “somewhat less serious,” he contends that he is entitled to a new trial because the alleged misconduct likely played a substantial part in influencing the jury to convict him.

The court affirmed the conviction reasoning that “when viewed as a whole” it is unlikely that the prosecutor’s statements inflamed the passions and prejudices of the jury. See Taylor, 650 N.W.2d at 208 (stating that the reviewing court considers the prosecutor’s closing argument as a whole and does not focus on selected phrases taken out of context).

State of Minnesota v. Stanton Williams

UNPUBLISHED OPINION

Appellant challenges his first-degree aggravated robbery conviction, arguing that, among other issues, the district court abused its discretion by refusing to instruct the jury on a lesser-included offense.

Appellant Stanton Williams was convicted of first-degree aggravated robbery. He argues that the district court abused its discretion by refusing to instruct the jury on fifth-degree assault. Failure to give a lesser-included-offense instruction is grounds for reversal if the defendant is prejudiced. Prejudice exists when there was a rational basis to convict on the lesser offense and acquit on the greater offense.

In considering whether to give a lesser-included-offense instruction, the district court must determine whether (1) the offense is a lesser-included, (2) the evidence provides a rational basis for a conviction on the lesser offense, and (3) the evidence provides a rational basis for an acquittal on the greater offense. A lesser offense is included if it is impossible to commit the greater offense without committing the lesser. In determining whether an offense is a lesser-included, the court looks at the elements of the offense, not the facts of the particular case. If the offense is a lesser-included, the court must then determine whether the evidence provides a rational basis for a conviction on the lesser offense and an acquittal on the greater offense.

Because fifth-degree assault is a lesser-included offense of simple robbery, and simple robbery is a lesser-included offense of first-degree aggravated robbery, fifth-degree assault is a lesser-included offense of first-degree aggravated robbery. The next step is to determine whether the evidence provides a rational basis for a conviction on the lesser offense and an acquittal on the greater.

While at a barbeque, appallant asked to speak with the victim, and when the men went outside, appellant immediately punched him in the face.  The victim fell to the ground, and whiule others continued the attack, appellant reached into the victims pocket and pulled out victim’s money and cell phone.

Appellant argued that there was a rational basis for the jury to acquit on the first-degree aggravated-robbery charge because there were no eyewitnesses and the allegedly stolen items were never recovered. However, the court disagreed reasoning that even viewing the evidence in the light most favorable to appellant, the evidence does not provide a rational basis for an acquittal on first-degree aggravated robbery as the victim testified that he had been robbed.

Related posts:

1. Minnesota Criminal Caselaw Update for the Week of November 23 – 27, 2009
2. Minnesota Criminal Caselaw Update for the Week of November 30 – December 4, 2009
3. Minnesota Criminal Caselaw Update for the Week of December 14-18, 2009
4. Minnesota Criminal Caselaw Update for the Week of December 7-11, 2009
5. Minnesota Criminal Caselaw Update For the Week of January 4-8, 2010