Hennepin County District Court File No. 01033029
Considered and decided by Shumaker, Presiding Judge, Minge, Judge, and
1. A gun thrown by a suspect during a chase can be admitted into evidence when police officers have a reasonable, articulable suspicion to question and pursue the suspect.
2. The failure to give the jury an instruction that "fleeting control" is not possession of a firearm is not reversible error.
The opinion of the court was delivered by: Minge, Judge
Appellant seeks review of his felony conviction, arguing, inter alia, that the police officers did not have a reasonable, articulable suspicion to stop appellant and seize evidence and that the jury should have been given a specific instruction that "fleeting" control of a firearm does not constitute possession. We affirm.
At 2:00 a.m. on April 19, 2001, Minneapolis police officers Brian Thureson and Stephen McBride heard what they thought was a single gunshot or a car backfiring in a high-crime area of Minneapolis. The officers stopped a person on the street and asked if he heard the possible gunshot. He pointed south. As the officers continued in that direction, they spotted three men emerging from an alley. When the officers pulled alongside the men, two of the men stopped. Appellant Verdel Houston, the third man, continued walking.
Both of the officers testified that as they approached the three, appellant appeared nervous, that as he walked away he looked over his shoulder, and that he grabbed the waistband of his pants in a gesture that was described as either preventing an object from falling out of his pants or preventing his pants from falling down. According to the officers, it was possible that appellant had any kind of object in his pants, including a cell phone, knife, bottle, hairbrush, narcotics, or some other contraband or weapon.
After walking a short distance, appellant started running. At that point, Officer McBride got out of the patrol car and started chasing appellant on foot. While McBride was running, he used his radio to tell Officer Thureson what was happening. Officer McBride communicated that he saw appellant toss what appeared to be a gun over a fence and into the yard of a house.
Officer Thureson turned on the emergency lights on the patrol vehicle and followed appellant, cutting him off at the corner. While Officer Thureson apprehended appellant, Officer McBride retrieved the gun. Officers McBride and Thureson advised appellant of his rights, questioned him, and arrested him for unlawful possession of a firearm.
As a result of this incident, appellant was charged with felony possession of a firearm. The complaint alleged violations of Minn. Stat. §§ 624.713, subd. 1(b), 609.11 (2000) (stating in Minn. Stat. §á624.713, subd. 1(b) that a person convicted as a juvenile for a violent crime is ineligible to possess certain weapons). Appellant had a prior criminal record including second-degree murder and illegal possession of a firearm. Appellant claimed at trial that the police did not have a reasonable, articulable suspicion to detain him and that the resulting chase and recovery of the gun should be excluded from the evidence presented to the jury. The trial court ruled against appellant.
At trial, appellant took the stand in his own defense. He contended that the gun was originally in the possession of his companions. Appellant testified that those men had shown him the gun earlier in the evening. He stated that when he and his companions were exiting the alley where the police first saw them, the gun was still in the possession of one of the other men. Appellant claimed that his companion placed the gun in appellant's jacket pocket as the officers were approaching. Appellant stated that he ran because he thought he would be "taken down" if the police saw that he had a gun or if he tried to surrender with a gun. Appellant further stated that he did not give the police officers this explanation the night of the arrest because he was afraid they would not believe him. When the prosecutor pressed him on cross-examination about why he did not explain this to the police when he was first detained, appellant objected to the line of questioning as violating his constitutional right to remain silent.
Appellant claimed at trial that because his possession of the gun was fleeting possession, he was entitled to a special jury instruction that he did not violate the law if he handled the gun for the sole purpose of disposal. The court agreed that the appellant could not be convicted if the gun was planted on him. The court did not give a special instruction on fleeting control but instead gave a general instruction on possession.
The jury found appellant guilty of felony possession of a firearm. The trial court sentenced appellant to 60 months in prison. This appeal followed.
1. Did the district court err by determining that the police officers had a reasonable, articulable suspicion to stop appellant ...