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State v. Balenger

August 04, 2003

STATE OF MINNESOTA, APPELLANT,
v.
NIKIA KYLENE BALENGER, RESPONDENT.



Hennepin County District Court File No. 02070504

Considered and decided by Willis, Presiding Judge, Huspeni, Judge,*fn1 and Forsberg, Judge.*fn2

SYLLABUS BY THE COURT

I. An uncorroborated anonymous tip that a person is armed and has committed a criminal offense is sufficiently reliable to justify an investigative stop when the tip is provided by a private citizen to police face to face.

II. The use of force no more intrusive than necessary to effect a stop does not transform an investigative stop into an arrest.

The opinion of the court was delivered by: Willis, Judge

Reversed and remanded

OPINION

After receiving a tip that respondent Nikia Balenger had just pointed a gun at another person, police approached Balenger and seized her by grabbing the back of her jersey and forcing her to stop. During the seizure, a gun fell from Balenger's person. The state charged Balenger with carrying a weapon without a permit, in violation of Minn. Stat. §á624.714, subd. 1(a) (2000). On appeal from an order suppressing evidence of the gun and dismissing the complaint, the state argues that the district court erred in concluding that the police exceeded the scope of a legitimate investigative stop by grabbing Balenger's jersey. Because we conclude that the court erred, we reverse and remand for further proceedings.

FACTS

At 1:20 a.m. on September 2, 2002, Minneapolis Police Officer Jeffrey Peterson was assisting with crowd control at the intersection of Fifth Street and Hennepin Avenue, when a female tapped him on the shoulder and told him that a person wearing a hat and an L.A. Lakers jersey had just pointed a gun at her friend. The tipster pointed at respondent Nikia Balenger and identified her as the person who had pointed the gun. The tipster then left the area before Officer Peterson had a chance to ask her any questions about her identity.

Officer Peterson reported the tip to his partner and began walking toward Balenger while radioing the information he had received to other officers in the area. Officer Peterson testified that as he approached Balenger, he saw her hands tucked under her jersey by her waist and that, based on his training and experience, he suspected that Balenger was hiding a gun.

In the meantime, Officer Scott Taylor, who had received Officer Peterson's call, saw Balenger walking across the street and began following her. He testified that (1) he could not see Balenger's hands but noticed that she was carrying a purse; (2) he called several times for Balenger to stop, saying, "Ma'am, stop," but Balenger continued walking briskly toward a crowded pizza restaurant; (3) the last time he commanded Balenger to stop he was within one or two feet of her; (4) concerned that Balenger posed a risk both to the public and to himself, he grabbed the back of her jersey and pulled her back just before she reached the restaurant's front door; (5) as he did so, he heard the sound of metal hitting the ground and saw a gun at Balenger's feet; and (6)áthere were no other people directly in front of the restaurant when he grabbed Balenger. Officer Peterson, who had seen the gun come "flying out," testified that he ran to secure it while his partner handcuffed Balenger. The officers determined that the gun was loaded and arrested Balenger.

The state charged Balenger with carrying a weapon without a permit, in violation of Minn. Stat. § 624.714, subd. 1(a) (2000). Balenger moved to suppress evidence of the gun, challenging the constitutionality of the stop. The court granted Balenger's motion and dismissed the complaint, ruling that although the tip was sufficiently reliable to justify an investigative stop and even a frisk, once Officer Taylor grabbed Balenger's jersey, he exceeded the scope of an investigative stop and "seized" Balenger without probable cause. By concluding that probable cause was necessary to justify Officer Taylor's conduct, the district court appears to have used the term "seizure" to mean "arrest."

The court noted on the record at the hearing that although the anonymous tip contained sufficient indicia of reliability to justify an investigative stop, the officers observed no independent criminal activity or furtive glances to justify "seizing" Balenger. The court discredited Officer Taylor's testimony that Balenger's hand was tucked under her jersey, giving him reason to believe that she was concealing something. The court also found that Balenger might not have heard Officer Taylor's command to stop. In its written order, the court specifically found that Officer Taylor's testimony that he asked Balenger to stop was not credible because ...


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