State v. TimberlakeState v. Timberlake
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- Before:
- Gildea
Aрpellant Tavon Tarrel Timberlake was charged as a felon in possession of a firearm, in violation of
We begin with a brief discussion of the facts giving rise to this offense. While on routine patrol on May 30, 2004, St. Paul police officers Robert Jerue and Axel Henry monitored a dispatch call that came in at approximately 11:30 p.m. The dispatch informed squads in the area that the department had received a 911 call from an identified private citizen. The caller told police that a black male and black female were just seen leaving a gas station in a white Pontiac Grand Prix. The female was the driver and the male was the passenger. The caller further explained that while at the gas station “[h]e saw the male get out,” and “[w]hen the male exited the vehicle, something fell off of his lap or out of his pocket, out of his hand.” The caller saw “what he described as a gun to the dispatcher, laying on the ground.” 1 He “then saw the black male passenger quickly pick up the gun and get back into the car.” The caller gave police his name and phone number and said that he would testify if necessary.
The officers were in the area of the gas station, and within a half-minute of hearing the dispatch information, officers Jerue and Henry saw a black female driving a white Grand Prix with a black male riding in the passenger seat. Based on the information they received from the dispatch call, the officers stopped the Grand Prix. After removing the driver and the passenger, who was subsequently identified as Timberlake, police found a loaded semiautomatic handgun under the front passenger seat. Timberlake was then arrested and subsequently charged as a felon in possession of a firearm, in violation of
Prior to trial, Timberlake asked the district court to suppress the gun. The court denied the motion. Following a jury trial, Timberlake was found guilty of violating
We are asked to determine whether the district court erred when it denied Timberlake’s motion to suppress the gun. When we review a pretrial order on a motion to suppress where the facts are not in dispute, as here, we review the decision de novo and “determine whether the poliсe articulated an adequate basis for the search or seizure at issue.” State v. Flowers, 734 N.W.2d 239, 247-48 (Minn.2007).
Both the United States and Minnesota Constitutions protect against “unreasonable searches and seizures.”
We have recognized that “the reasonable suspicion standard is ‘not high.’ ” State v. Bourke, 718 N.W.2d 922, 927 (Minn.2006) (quoting Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997)). While the standard is less demanding than probable cause or a preponderance of the evidence, it “requires at least a minimal level of objective justification for making the stop.” Wardlow, 528 U.S. at 123, 120 S.Ct. 673 (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). Police “must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch”’ of criminal activity.” Id. at 123-24, 120 S.Ct. 673 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). They must articulate a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). That standard is met when an officer “observes unusual conduct that leads the officer to rеasonably conclude in light of his or her experience that criminal activity may be afoot.” In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn.1997).
The reasonable suspicion standard can also be met based on information provided by a reliable informant.
Id.
But information given by an informant must
Timberlake contends that because it is legal in Minnesota for a private citizen to carry a permitted gun in public, police may not conduct an investigatory stop without additional evidence that the possession itself is illegal. For example, Tim-berlаke argues the police would need to suspect that the person carrying the gun does not have a valid permit or that some other criminal activity is afoot to warrant an investigatory stop. The State argues that police may conduct an investigatory stop of a motor vehicle without running afoul of the Constitution based on a report of gun possession inside the vehicle, because it is unlawful in Minnesota to possess a gun in a public place without a permit. Because the parties’ arguments are based on Minnesota’s firearm permit law, we turn first to an examination of that statute and our jurisprudence construing it. 5
Minnesota Statutes § 624.714, subdivision la (2006), provides that “[a] person * * * who * * * possesses a pistоl in a motor vehicle * ⅜ * without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor.” We first construed this language in
State v. Paige
and concluded that “[t]he statute is * * * properly characterized as a ‘general prohibition’ ” on the possession of firearms in public because “[a]nyone having a firearm in a public place may be prosecutеd if he has no permit.” 256 N.W.2d 298, 303 (Minn.1977);
see also State v. Folstrom,
331 N.W.2d 231, 233 (Minn.1983) (“[Possession of a pistol without a permit [is] a crime * * *.”). We determined in
Paige
that the “without a permit” language does
The State argues that consistent with our determination in Paige that lack of a permit was not an element of the offense, the police in this case did not need to know whether Timberlake had a permit in order to havе a reasonable suspicion that Tim-berlake was engaged in criminal activity. We agree that our analysis in Paige supports the conclusion that the officers had a reasonable basis to suspect that Timber-lake was engaged in criminal activity, even without knowing whether he had a permit, based on the caller’s report that he saw Timberlake with a gun in the vehiсle. But Timberlake notes that the statute has been amended since Paige, and he appears to suggest that these amendments overrule our construction of the statute in Paige.
Timberlake is correct that the legislature has amended the statute since
Paige.
Indeed, the legislature made extensive changes to the permitting provisions in the statute.
Compare
Not only is the operative language in the statute the same as it was when we decided
Paige,
but the legislature also added other provisions to the statute that reinforce our conclusion in
Paige
that the nonexistence of a permit is not an element of the crime, but that the permit holder has the obligation to provide evidence of his permit as a way to avoid criminal responsibility. For example, the legislature has placed the obligation on the permit holder to carry his permit card with him at all times when carrying the pistol and to “display the permit card and identification document upon lawful demand by a peace officer.”
We conclude that the legislature did not intend to overrule
Paige
through the Minnesota Citizens’ Personal Protection Act and in fact added provisions that buttress our analysis in
Paige. See
In addition to his argument about the effect of the statutory amendments, Tim-berlake also argues that
Paige
has been undermined because, subsequent to
Paige,
we have treated similar language in other criminal statutes as creating an element of the offense.
See State v. Burg,
648 N.W.2d 673, 678-79 (Minn.2002) (interpreting the phrase “without lawful excuse” in the nonsupport of a child statute as an element of the offense and observing that “[b]y embedding the phrase ‘without lawful excuse’ in the definition of the offense, the lеgislature demonstrated its intent to include the absence of a lawful excuse as one of the facts necessary for a conviction”);
State v. Brechon,
352 N.W.2d 745, 750 (Minn.1984) (holding that a claim of right in a criminal trespass case is not a defense but a basic element of the State’s case that the State must prove beyond a reasonable doubt). But we have said that in distinguishing between an element of a crime and an exception to a statute, “[i]n order to
Timberlake finally relies on our decision in
State v. Cripps,
533 N.W.2d 388 (Minn.1995), to support his argument that the investigatory stop in the present case was unlawful because officers had no reason to suspect that unlawful activity was afoot. In
Cripps,
an officer conducting a check for identification of bar patrons to enforce minimum alcohol consumption age requirements approached the defendаnt in a bar and asked for identification.
Id.
at 389-90. When the defendant gave police false identification, she was arrested.
Id.
at 390. We held that the seizure was unlawful because police failed to articulate “a sufficient individualized suspicion of criminal activity.”
Id.
at 392. In the case of underage drinking, however, age is an element of the offense.
In sum, we reaffirm our interpretation of
Reversed.
Notes
. The informant did not describe the gun in any way or identify it as a pistol.
. Because the only issue before us is whether the police had a sufficient basis to support a stop of the vehicle, we do not discuss or analyze their post-stop conduct.
. Timberlake does not argue that police needed probable cause to stop the vehicle. Rather, he assumes that reasonable, articulable suspicion is the applicablе standard, and he contends that standard was not met here.
. Timberlake cites Florida v. J.L. as standing for the proposition that the United States Supreme Court rejected an ” ‘automatic firearm exception’ to the rule in Terry.” United States v. Ubiles, 224 F.3d 213, 218 (3d Cir.2000) (quoting Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)). But the issue in J.L. was whether the informant was reliable and the Court held that he was not. J.L., 529 U.S. at 274, 120 S.Ct. 1375. The Court “did not consider under what circumstances a reliable tip that someone was carrying a gun would provide the police with reasonable suspicion.” United States v. Valentine, 232 F.3d 350, 354 (3d Cir.2000). J.L. therefore does not inform the issue presented in this case.
. To support his position, Timberlake cites cases from other jurisdictions. See Ubiles, 224 F.3d 213; United States v. DeBerry, 76 F.3d 884 (7th Cir.1996). Cases from other jurisdictions are not particularly helpful because they depend on interpretation of a particular state’s or territory’s gun licensing statute. Here, we rely only on our own interpretation of Minnеsota‘s statute.
. In Paige, we generally used the phrase “without a permit” rather than specifically referring to the “without first having obtained a permit” language contained in the statute. See 256 N.W.2d at 303.
. Timberlake contends that our discussion in Paige about whether the phrase “without a permit” is an element of the offense is dictum and therefore not binding. Dicta are generally “considered to be expressions in a court’s oрinion which go beyond the facts before the court and therefore are the individual views of the author of the opinion and not binding in subsequent cases.” State ex rel. Poster v. Naftalin, 246 Minn. 181, 208, 74 N.W.2d 249, 266 (1956). In Paige, we held that a conviction for carrying a pistol in a public place had to be reversed because the county attorney introduced the pistol at trial in contravention of a suppression оrder. 256 N.W.2d at 302. We interpreted the “without a permit” language in order to guide the defendant’s retrial following our remand. Id. That discussion therefore is not dictum.
. We also noted that if the defendant presents evidence of a permit, the burden shifts back to the State to show that the permit is invalid or has been violated. Paige, 256 N.W.2d at 304.
. In the 2003 amendments, the legislature added the recognition and declaration “that the seсond amendment of the United States Constitution guarantees the fundamental, individual right to keep and bear arms. The provisions of this section are declared to be necessary to accomplish compelling state interests in regulation of those rights.”