Category: guns

Knowledge that you are carrying a gun into a public place required before a conviction

Most people assume that in order to commit a crime the person must have knowledge that their act is criminal.  This criminal intent is known as mens rea in Latin.  Without such knowledge, the crime is essentially strict liability.  Do the act, even if you had no idea that you were committing a criminal act, and you are guilty.    While this does not seem fair, our legislature to show they are tough on crime has created several crimes where knowledge of a certain element is not required for a conviction.  In the Minnesota Supreme Court case of State v. Ndikum, The Court noted that such statutes that do not require criminal intent are disfavored.  Furthermore, where a statute does not specifically exclude criminal intent, then the State is required to prove knowledge of the criminal act with proof beyond a reasonable doubt before a Defendant may be convicted.  Read below for a summary of this case and click here to read the entire opinion.

State v Ndikum (SUP CT, 07-11-2012, A10-1728, Hennepin Co)

Possession of Pistol, Elements, Knowing Possession, MS 624.714

Defendant is an attorney who lawfully purchased a pistol. As instructed, he only carried the pistol between office and home. However, one day he went to court and the pistol was in his briefcase.

At trial, the Defendant said he didn’t know the pistol was in the briefcase.  The Defendant asked for a jury instruction that required the State to prove he had knowledge that the gun was in his briefcase when he brought the brief case to court.

The Trial court granted the jury instruction on the felony count, but refused to give the instruction on the gross misdemeanor count.  After jury deliberations, the Defendant was found not guilty on the felony, but guilty on the gross misdemeanor count.

On appeal, the court of appeals reversed the conviction and the State appealed the reversal to the State Supreme Court.  The Minnesota Supreme Court affirmed the  reversal of conviction. In their Opinion, the Minnesota Supreme Court notes that offenses that do not require no mens rea are disfavored.   (As a side note, Mens Rea means “guilty mind” Latin.  In more common language, As an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and willfulness.) In making its decision, The Minnesota Supreme Court also notes that when a statute is silent as to mens rea, as the statute is here, that is not enough to not require mens rea as an element for the State to prove beyond a reasonable doubt at trial.

Is carrying a gun on private property reasonable suspicion for a stop and search?

Carrying a gun in a private yard is not suspicion of criminal activity and does not give police a reason to stop or search you.

Read below to see how our Constitution limits the ability for law enforcement to search you and how probable cause to believe that you are committing a crime, which allow for a stop and search, is determined.

STATE v. THENG YANG
814 N.W.2d 716 (2012)
STATE of Minnesota, Respondent,
v.
THENG YANG, Appellant.
No. A11-1008.
Court of Appeals of Minnesota.
June 18, 2012.
Lori Swanson, Attorney General, St. Paul, MN; and John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, MN, for respondent.
Jodie L. Carlson, Assistant Public Defender, St. Paul, MN; and Tara Reese Duginske, Special Assistant Public Defender, Briggs and Morgan, P.A., Minneapolis, MN, for appellant.
Considered and decided by RODENBERG, Presiding Judge; HALBROOKS, Judge; and ROSS, Judge.
________________________________________

OPINION
ROSS, Judge.
A 911 operator received a report that an Asian male, who was wearing red pants at a specific St. Paul residence, had a gun. Police arrived and saw an Asian male with red pants in the front yard. They handcuffed the male, Theng Yang, asked him about the gun, and retrieved a handgun from his coat pocket. The district court convicted Yang of unlawful possession of a firearm by an ineligible person because a prior conviction made it a felony for him to possess a firearm anywhere. In this appeal from the denial of Yang’s pretrial motion to suppress evidence, we must decide whether the officers’ stop violated Yang’s constitutional right to be free of unreasonable police seizures. We hold that the officers’ actions violated Yang’s constitutional rights because they had no reason to suspect that his conduct met the restrictive elements of Minnesota’s handgun law.
FACTS
On a November 2010 afternoon, Officers Michael McNeill and Seth Wilson were patrolling the St. Paul Frogtown neighborhood when a police dispatcher relayed a 911 report that an Asian male wearing red pants had a gun at a particular residential address in their area. The officers recognized the address, associating it with drugs and arrests.
Officers McNeill and Wilson, and others, arrived and saw four or five men of Asian descent entering the front yard from the porch, one of the men wearing red pants. The officers immediately took cover behind their squad cars, drew their handguns, and ordered the men to the ground. Officer Wilson handcuffed the man wearing red pants, Theng Yang, and asked him where the gun was. Yang told him that it was in his coat pocket. Officer Wilson found a handgun there. We assume that the officers at some point learned that the home was Yang’s, but the record is silent about it.
[ 814 N.W.2d 718 ]

Because he was previously convicted of a felony, Yang could not lawfully possess any firearm anywhere, so the state charged him with unlawful firearm possession. See Minn.Stat. §§ 624.713, subds. 1(2), 2(b), 609.11, subd. 5(b) (2010). Yang moved the district court to suppress evidence of the gun, arguing that the detaining police officers lacked a reasonable, articulable suspicion that he was involved in criminal activity. The district court denied the motion, deeming the stop to have been justified.

Yang waived his right to a jury and the state submitted the case to the district court judge in a stipulated-facts trial. See State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn.1980); Minn. R.Crim. P. 26.01, subd. 4. The district court found Yang guilty and convicted him of unlawful firearm possession. It sentenced him to 60 months in prison over his motion for a downward dispositional sentencing departure. Yang appeals, challenging the denial of his motion to suppress and the denial of his sentencing motion.
ISSUE
Did the officers’ investigatory stop violate Yang’s Fourth Amendment right to be free of unreasonable searches and seizures?
ANALYSIS
Yang challenges the denial of his motion to suppress evidence of the firearm, arguing that the stop violated his Fourth Amendment rights because the police officers did not have a reasonable, articulable suspicion that criminal activity was afoot. Where, as here, the district court denies a motion to suppress on undisputed facts, we independently consider whether those facts support the decision. See State v. Timberlake, 744 N.W.2d 390, 393 (Minn.2008).
The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A warrantless seizure is unreasonable unless it falls into a recognized exception. State v. Flowers, 734 N.W.2d 239, 248 (Minn.2007). The Supreme Court has recognized that warrantless, investigatory seizures that are limited in scope, duration, and purpose are reasonable if supported by circumstances that create an objectively reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968). And when circumstances exist to create an objectively reasonable concern for officer safety, the officer engaged in a valid stop may also conduct a brief pat-down search for weapons. Id.
The moment when the constitutionally significant seizure occurred here is not in dispute. The seizure occurred once the officers drew their guns and ordered Yang and his companions to the ground. See Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979) (noting that a seizure occurs when an officer “accosts an individual and restrains his freedom to walk away”) (quotation omitted). Yang recognizes that this initial seizure was not an arrest requiring probable cause and that it was justified if the circumstances preceding it meet Terry’s lesser investigatory stop standard.

The state argues that the officers justifiably detained Yang on their suspicion that Yang was violating Minnesota’s statute generally prohibiting a person from carrying a handgun in a public place. The relevant statute criminalizes public handgun possession without a permit: “A person… who carries, holds, or possesses a pistol … on or about the person’s clothes or the person … in a public place, as
[ 814 N.W.2d 719 ]

defined in section 624.7181, subdivision 1, paragraph (c), without first having obtained a permit to carry the pistol is guilty of a [crime].” Minn.Stat. § 624.714, subd. 1a (2010) (emphasis added). The parties’ dispute focuses on whether Yang’s front yard is “a public place.”
Asserting that a person not otherwise prohibited may lawfully carry a firearm on any private residential property regardless of whether that person holds a handgun-carry permit (because a residential yard is not a “public place”), Yang contends that the officers lacked justification for the seizure because they knew his yard was private property. Under these circumstances, argues Yang, the Terry standard was not met. The state counters by asserting that Minnesota law prohibits any person who lacks a handgun-carry permit from possessing a firearm anywhere outside his home or business, even on his own residential property (because a yard is a “public place”), so police may detain a person with a firearm in a private yard to determine whether he possesses a permit. Under these circumstances, argues the state, the Terry standard was met.
We look to the statute to determine whether the district court and the parties have accurately framed its meaning. Statutory interpretation is a question of law, which we review de novo. State v. Larsen, 650 N.W.2d 144, 147 (Minn.2002). We think that both Yang’s and the state’s arguments hang on flawed analyses of the statutory definition of “public place.” We consider each argument.
“Public Place”
Yang and the state come to different interpretations of “public place,” each focusing largely on how the statute describes what is not a public place and then arguing for a different, purportedly necessary, negative inference. Section 624.714, subdivision 1a, prohibits only carrying a handgun “in a public place, as defined in section 624.7181, subdivision 1, paragraph (c).” The parties emphasize and argue from the following negative language of section 624.7181, subdivision 1(c): “`Public place’… does not include: a person’s dwelling house or premises, the place of business owned or managed by the person, or land possessed by the person.” (Emphasis added.). Yang’s attorney focused at oral argument on the indefinite article in the first clause of this passage — “a person’s dwelling house or premises” — and would have us infer that this must mean any person’s dwelling or premises. Under this theory, a large exclusion from the universe of “public places” is every private yard that adjoins some person’s house, not merely the yard adjoining the house of the person carrying the handgun. Accordingly, argues Yang, even though police may not have known the yard was Yang’s, they had no reason to stop him and inquire about the gun because they knew he was standing in a yard that of course belonged to some person.
We cannot accept Yang’s interpretation of the exclusion because the interpretation arises unreasonably from the phrase, “a person’s dwelling house or premises,” ignoring the remainder of the provision, which also excludes “land possessed by the person.” It is contextually evident that when the exclusion refers to “a person’s dwelling house or premises,” it cannot mean any person’s house or premises, as Yang urges; it instead refers to the house or premises of the person whose handgun possession is at issue, just as it expressly refers to the land of “the person” whose handgun possession is at issue. In other words, for the exclusion to apply, the person referred to in section 624.714, subdivision 1a, who possesses the handgun, must be the same person referred to in
[ 814 N.W.2d 720 ]

section 624.7181, subdivision 1(c), who possesses the property.
We also cannot accept the state’s interpretation of the exclusion. The state asserted at oral argument that the officers reasonably investigated the handgun report by seizing persons in the residential yard because the exclusion’s reference to “land possessed by the person” regards only rural, agricultural land, not residential land. As with Yang’s argument, the state’s argument fails under the plain wording of the statute. Nothing in the language of the exclusion supports the state’s constrained definition of land. “Land” appears in the statute with no categorical qualification. And the statute expressly also excludes the person’s “dwelling house or premises.” If the legislature wanted a narrower exclusion based on the nature or location of the “land possessed by the person” it would have drafted the statute in that fashion. “[C]ourts cannot supply that which the legislature purposely omits or inadvertently overlooks.” Wallace v. Comm’r of Taxation, 289 Minn. 220, 230, 184 N.W.2d 588, 594 (1971).
But rejecting the parties’ reasoning about what is not a public place does not answer whether Yang’s front yard is a public place. For that, we look to the statutory language of what is a public place, and that language is plain:
“Public place” means property owned, leased, or controlled by a governmental unit and private property that is regularly and frequently open to or made available for use by the public in sufficient numbers to give clear notice of the property’s current dedication to public use.
Minn.Stat. § 624.7181, subd. 1(c). So a “public place” comes in two forms: (1) property that is governmentally owned, leased, or controlled, and (2) private property that has been dedicated to the public for its use. Land dedication to the public may occur by statute or by common law, but, like governmental land, dedicated private land is in the nature of publicly useable space, not in the nature of a person’s front yard. See, e.g., Minn.Stat. § 462.358, subd. 2b (2010) (authorizing municipal subdivision regulations to require that certain developable land be “dedicated to the public… for public use as streets, roads, sewers, electric, gas, and water facilities, storm water drainage and holding areas or ponds and similar utilities and improvements, parks, recreational facilities, … playgrounds, trails, wetlands, or open space”); see also Wojahn v. Johnson, 297 N.W.2d 298, 306-07 (Minn.1980) (discussing similarities between statutory and common-law dedication as both demonstrating the landowner’s intent “to have his land appropriated and devoted to a public use, and an acceptance of that use by the public”).
Focusing on that part of the statute that defines what is a public place rather than on the definition of what is not, it is easy to conclude that Yang’s residential front yard does not fit either statutory category of a “public place.” Neither party contends that a reasonable officer would have perceived Yang’s yard to be governmental property or a space dedicated to and accepted by the public for public use. Rather than yield to the temptation to define a public place by negative inference from what the statute says is not a public place, as the parties’ arguments suggest, we decide this issue without resolving the question of whether the yard is one of the excluded places. It is enough that it is not one of the included places.
We recognize that the statute leaves a substantial gap between the included and excluded classes of property, describing
[ 814 N.W.2d 721 ]

narrowly what is a public place and describing narrowly what is not a public place; many properties seem to fit neither class (like, for example, the front yard of a person who is not suspected of carrying a handgun). And there is no apparent overlap between what is said to be a public place and what is said not to be. It would therefore appear that the legislature did not really intend for its list in the negative portion of the definition to be read as a list of exceptions to the positive portion of the definition. We also recognize that, under our reading, the negative portion has little apparent legal significance except in those few (if any) circumstances when some overlap might be found. In any event, the state’s reasonable suspicion argument rests on the theory that Yang was reported to have a handgun in a public place, but he was found in an area that we hold is not a “public place.”
Three cases might, on their surface, seem to suggest a different conclusion. On a closer look, they do not.
The first of these is State v. DeLegge, 390 N.W.2d 10 (Minn.App.1986). In DeLegge, we construed a prior version of the same statute to define “public place” broadly, reasoning that a person could not carry a handgun on any private property where discharging it might harm others, particularly in an urban setting. Id. at 12. But we constructed a definition there only because the statute at the time did not define “public place.” See id. at 11. We were left to provide a judicial definition consistent with perceived legislative intent. Id. at 11-12. After DeLegge was decided, however, by enacting the Personal Protection Act of 2003 the legislature amended the statute into its current form, incorporating expressly the definition of “public place” in section 624.7181. See 2003 Minn. Laws ch. 28, art. 2, § 4 at 274. DeLegge’s “public place” definition therefore does not control.
The second case is State v. Gradishar, where we held that, “[f]or purposes of section 624.7142, … `public place’ shall be defined as: generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not.” 765 N.W.2d 901, 903 (Minn.App.2009). We are convinced that Gradishar also does not apply here because it involved the carrying of a pistol in a public place while under the influence of alcohol, an offense that we held also lacked any statutory definition of “public place” and that called for a broader definition than the one embodied in section 624.7181. Id. at 903-04. And in coming to the broad definition, we expressly recognized that cases involving a person carrying a handgun in a public place under section 624.714, which is the proffered basis for Yang’s detention, would instead trigger the narrow definition of 624.7181. Id. at 904.
The third case, State v. Timberlake, 744 N.W.2d at 391, also does not control here. Applying Fourth Amendment principles, the Timberlake court determined that police officers may briefly detain and frisk a person reported to be carrying a gun in a public place. Id. at 395-96. The officers in that case had detained Timberlake based on a tip that he was carrying a gun while driving from a gas station onto the public road. Id. at 392. Similar to Yang’s argument, Timberlake contended that the officers could not have developed a reasonable suspicion of criminal activity because the tipster never mentioned that Timberlake lacked a permit; so, for all the officers knew, Timberlake might have been carrying the reported gun lawfully. Id. at 394. The supreme court rejected the argument, concluding that police properly
[ 814 N.W.2d 722 ]

conducted a Terry stop to determine whether Timberlake had a carry permit. Id. at 395, 397; see also State v. Hollins, 789 N.W.2d 244, 250 (Minn.App.2010) (following Timberlake and holding that defendant’s possession of a handgun at a nightclub was sufficient to create reasonable suspicion that he carried the gun unlawfully, absent any indication that he held a permit, justifying a Terry detention), review denied (Minn. Dec. 22, 2010).
Again, Timberlake does not help the state here. Timberlake’s holding rests on the supreme court’s reasoning that lacking a handgun permit is not an element of the crime of carrying a gun in a public place; rather, having a permit is a mere exception to the crime. Id. at 396. So police developed reasonable suspicion that Timberlake’s conduct met all the elements of the crime because he was reportedly carrying his handgun in a public place. See id. at 392, 397 (describing report that Timberlake was carrying a gun in a motor vehicle that had entered the public roadway from a gas station). Unlike the fact of a handgun-carrier’s possibly lacking a handgun permit (the factor analyzed in Timberlake), a handgun-carrier’s being in a public place is an element of the crime. See Minn.Stat. § 624.714, subd. 1(a). (“A person … who carries … a pistol … in a public place … is guilty of a [crime].”). And Yang contends that police lacked any reasonable suspicion that he was in a public place, touching on a central statutory element of the only suspected crime the state offered as its basis for the stop.
In sum, the negative implications of the statute’s exclusions do not define a public place, the positive declarations of the statute define public place in a manner that does not include a residential yard, and the factually similar cases are legally distinguished.
Stop Justification
Applying the legislature’s definition of “public place,” we must now decide whether police were justified in seizing Yang. We hold that police lacked reasonable suspicion to seize him. We can surmise that the officers mistakenly understood that the handgun law generally prohibits persons from carrying a handgun in a private residential yard. An officer’s mistaken interpretation of a statute cannot form an objectively reasonable basis for suspecting criminal activity and detaining a person. State v. Anderson, 683 N.W.2d 818, 823-24 (Minn.2004); State v. George, 557 N.W.2d 575, 578-79 (Minn.1997). When the police arrived, Yang was “coming out the front porch into the front yard,” apparently nowhere near governmental property — a sidewalk or street, for example — and the state makes no claim of it. Although it turned out that Yang illegally possessed a firearm anyway because a previous conviction prohibited his possession, this is of no consequence to the stop because police had no reason to know that and because the state has attempted to justify the seizure instead only on the supposed suspected violation of the handgun statute. Similarly, the officers’ awareness that drugs had been found and arrests had occurred previously at the home do not create reasonable suspicion to detain an occupant on a new report that he possesses a handgun.
Because police lacked reasonable suspicion to detain Yang, and because the unconstitutional detention and search produced the evidence that led to his conviction, we reverse his conviction.
Sentencing Departure
Yang also argues that the district court abused its discretion by denying his sentencing motion for a downward dispositional departure. Because we reverse his conviction,
[ 814 N.W.2d 723 ]

we do not reach his sentencing challenge.
DECISION
Carrying a pistol without a permit in a private yard is not carrying a pistol in a public place under sections 624.714 and 624.7181. Police unconstitutionally detained Yang then found the incriminating evidence on him in his front yard when they unreasonably suspected that his reported and observed conduct constituted the crime of carrying a pistol in a public place.
Reversed.

Cop isn’t exactly Robin Hood

Courts do not take kindly to government officials abusing their powers against citizens. In the case of United States v. Jackson, a police officer learned where thieves would house stolen goods. The officer would then obtain those goods and keep the goods for himself and another officer. Government agents set up a fake stash house for stolen goods. The officer took the bait and was ultimately convicted for stealing government property, the property the government used in the sting. What is noteworthy is that at sentencing the Court increased the officer’s sentence for being in possession of a weapon while committing the theft. Read below to see the case summary and complete opinion.

UNITED STATES v. JACKSON (E.D. Mo., Stohr) (5-9-2011)

Factual Summary: Defendant Jackson was a police officer. Agents received information that Defendant Jackson had been using his authority as
uniformed police officer to seize stolen goods. Then, Defendant Jackson would either keep those items for him, share the goods with another officer and also a finder of the stolen goods. Federal Investigators then set up a sting. The federal investigators caught Defendant Jackson in this sting illegally keeping the property. This amounted to theft. While taking the property, Defendant Jackson had his uniform and duty weapon with him. He was convicted of stealing government property. The government property, was the property used by federal agents in the sting. Defendant Jackson’s sentence was then enhanced for possessing a firearm in
connection with the felony, and for his role in organizing and leading the
theft.

The Federal Court of Appeals affirmed the conviction and sentence, holding an officer having his duty weapon on his person when his uniform is used to show authority in committing a theft satisfies the firearm enhancement. Furthermore, the evidence supported his role as a leader because the information about the original “thief” came to him, he recruited the other officer, and he distributed the stolen goods.

UNITED STATES v. JACKSON
UNITED STATES of America, Appellee, v. Ronald JACKSON, Appellant.
No. 10–2027.
— May 09, 2011
Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.
Hal Goldsmith, AUSA, argued, St. Louis, MO, for Appellee.V. Clyde Cahill, argued, St. Louis, MO, for Appellant.
Ronald Jackson, formerly a police officer with the St. Louis, Missouri, police department, pleaded guilty to the theft of federal-government property, a violation of 18 U.S.C. § 641. At sentencing, the district court,1 among other things, added eight levels to Jackson’s base offense level for his possession of a dangerous weapon—his duty firearm—in connection with the offense. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2B1.1(b)(13)(B) (2009). It then added two additional levels for his role in organizing and leading the theft. See U.S.S.G. § 3B 1.1(c). Jackson appeals, arguing that because his firearm played no role in facilitating the offense, and because he was not a leader, but rather was a mere “equal part[y]” with his codefendant (another officer), the adjustments found in §§ 2B 1.1(b)(13)(B) and 3B 1.1(c) do not apply. We affirm.
I.
On July 27, 2009, Jackson was on duty as a police officer when an informant tipped him off that a woman, described in the proceedings below only as “Jane Doe,” was in possession of stolen electronics. Unknown to Jackson, the “tip” had been generated by federal investigators, who suspected that Jackson had been “conduct[ing] police stops of vehicles that were supposedly containing stolen goods, [and] would then seize those items and then split those items with a third party.” Sentencing Tr. at 14:13–20. Their plan was to catch Jackson in the act.
The informant gave Doe’s location to Jackson, and the two agreed that Jackson would find her, seize the electronics, and share some of them with the informant. Jackson, a 30–year officer, contacted his co-defendant Christian Brezill, an officer with only 18 months’ experience, and asked if Brezill would help with the theft of the electronics. Brezill agreed to do so, and the two drove to the location the informant had provided, where they found Doe sitting in her car. After a computer check of her name revealed outstanding warrants for minor traffic violations, the officers arrested Doe, handcuffed her, and placed her in the back of Brezill’s police cruiser. They then searched the trunk of her car, recovering the “stolen” electronics, which they put in the trunk of Brezill’s cruiser. The officers booked Doe on the outstanding traffic warrants, but never charged her with possession of the stolen electronics and never reported their recovery to the police department.
Later, after the end of their shift, Jackson and Brezill met to divide the property. Jackson gave part of his share to the informant, kept an XBox gaming system for himself, and sold the rest for cash; Brezill kept a Wii gaming system and a laptop computer for himself, and sold the rest for cash. The total value of the property, all of which belonged to the United States government, was $1480.35.
Jackson and Brezill both pleaded guilty to theft of federal-government property. See 18 U.S.C. § 641. At Jackson’s sentencing, the district court applied—over Jackson’s objection—two upward adjustments to his base offense level. The first was for Jackson’s possession of a dangerous weapon in connection with the theft. See U.S.S.G. § 2B1.1(b)(13)(B). The second was for Jackson’s role in organizing and leading the offense. See U.S.S.G. § 3B1.1(c). The district court then calculated a total offense level of 15 and sentenced Jackson to 18 months’ imprisonment, the low end of the guidelines range. This appeal followed.
II.
“This court reviews the district court’s construction and application of the sentencing guidelines de novo, and we review its factual findings regarding enhancements for clear error.” United States v. Bastian, 603 F.3d 460, 465 (8th Cir.2010) (citation and quotation marks omitted).
Guidelines § 2B 1.1(b)(13)(B) provides a two-level enhancement for “possession of a dangerous weapon (including a firearm) in connection with” a theft. Furthermore, “[i]f the resulting offense level is less than level 14,” it is “increase[d] to level 14.” Jackson had a base offense level of six, see U.S.S.G. § 2B1.1(a)(2), which meant that § 2B 1.1(b)(13)(B) worked an eight-level increase to his base offense level.
Jackson acknowledges that he was in possession of a firearm—his duty weapon—when he committed the theft. But, he argues, there was no “nexus” between the firearm and the offense such that the enhancement found in § 2B1.1(b)(13)(B) could apply. In his view, that section applies only when the weapon advances the criminal enterprise, for example, by “enhanc[ing] the benefits of the offense,” “mak[ing] the offense easier to commit,” “inject[ing] a degree of fear,” or “increas[ing] the seriousness of the crime,” to name a few possibilities. And, Jackson argues, his firearm was just a necessary part of his uniform, “inconsequential” to the commission of the theft.
Section 2B 1. 1(b)(13)(B) requires that the possession of the weapon be “in connection with” the theft. See also U.S.S.G. § 2B 1.1 cmt. background (“Subsection (b)(13)(B) implements, in a broader form, the instruction to the Commission in section 110512 of Public Law 103–322.”); Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103–322, § 110512, 108 Stat. 1796, 2019 (1994) (“[T]he United States Sentencing Commission shall amend its sentencing guidelines to provide an appropriate enhancement of the punishment for a defendant convicted of a felony under chapter 25 of title 18, United States Code, if the defendant used or carried a firearm ․ during and in relation to the felony.” (emphasis added)).
But Jackson goes too far in arguing that his firearm was unconnected to his theft of the electronics. As the district court explained:
While the presence of a firearm will not always warrant [application of § 2B1.1(b)(13)(B) ], with regard to this case and this defendant, it’s clear that the presence of defendant’s firearm was not accidental or coincidental. It was available to help to deter resistance or intimidate the victim, and was available to help to protect the defendant in the event that the victim attempted to resist or harm him. In other words, the defendant used his status as a police officer with all the trappings, including the carrying of a service firearm, to commit the [theft].
Sentencing Tr. at 28:20–29:6. Indeed, it was Jackson’s police uniform, which included the firearm, that cloaked him with the apparent authority to arrest Doe, search her vehicle, and confiscate the electronics. Had he not been in uniform, it is not improbable that Doe would have regarded him as just another civilian. In those circumstances, we think it unlikely that she would have complied so readily, if at all, with his directives.
Furthermore, an officer’s visible possession of a firearm, even when it remains holstered, is a signal of authority that will usually promote compliance in an ordinary citizen. Accord Florida v. Bostick, 501 U.S. 429, 448, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (Marshall, J., dissenting) (“Our decisions recognize the obvious point, however, that the choice of the police to ‘display’ their weapons during an encounter exerts significant coercive pressure on the confronted citizen.” (citing cases)). That the department required Jackson to possess the firearm as one of the “certain tools or items in order to perform and carry out his duties,” Appellant’s Br. at 7, only furthers that view. We therefore agree with the district court that Jackson’s possession of a firearm was sufficient to support the enhancement.
III.
Jackson’s next argument—that he was not an organizer or leader for the purposes of guidelines § 3B1.1(c), but rather a mere “equal part[y]” with his co-defendant—fares no better.
Guidelines § 3B1.1(c) provides a two-level enhancement “[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity” involving fewer than five participants and that was not “otherwise extensive.” See U.S.S.G. § 3B1.1 (criminal activity involving “five or more participants” or that is “otherwise extensive” is covered in parts (a) and (b)). Section 3B1.1(c) differs from § 3B1.1(a) and (b) in that it does not distinguish an “organizer or leader” from a “manager or supervisor”—both are treated to the same two-level enhancement. The background commentary explains:
In relatively small criminal enterprises that are not otherwise to be considered as extensive in scope or in planning or preparation, the distinction between organization and leadership, and that of management or supervision, is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility. This is reflected in the inclusiveness of § 3B1.1(c).
U.S.S.G. § 3B1.1 cmt. background. Therefore, when considering whether § 3B1.1(c) applies, it is unnecessary to determine whether the defendant was a mere “manager or supervisor” or instead was a more responsible “organizer or leader.” Still, we think that application note 4, which explains how to “distinguish[ ] a leadership and organizational role from one of mere management or supervision” for the purposes of § 3B 1.1(a) and (b), is a helpful guide in determining whether § 3B1.1(c) should be applied to a defendant. See U.S.S.G. § 3B1.1 cmt. n.4.
That note provides:
In distinguishing a leadership and organizational role from one of mere management or supervision, ․ [f]actors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
Id.
Reviewing the facts regarding Jackson’s role in the offense, we conclude that the district court did not err in applying the enhancement. At sentencing, the district court heard testimony that it was Jackson who initially planned the offense, that it was Jackson who recruited an accomplice in Brezill, that Jackson was, by some three decades, the senior officer, that when the two officers found Doe it was Jackson who “made the decision to take the property,” that it was Jackson’s decision to split up the property at Brezill’s parents’ house, and that it was Jackson who shared some of the stolen electronics with the informant. Given those circumstances, a § 3B1.1(c) enhancement was appropriate.
IV.
Jackson’s final claim of error is that the district court punished him “for criminal behavior for which he was not charged,” specifically, that it relied on evidence that Jackson had committed similar “rip off[s]” on numerous prior occasions. Doing so, Jackson argues, conflicted with the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
At sentencing, the government called as a witness FBI Special Agent Anthony Bernardoni, who testified that in “the spring or early summer of 2009” he had received information that Jackson had been “conduct[ing] police stops of vehicles that were supposedly containing stolen goods, [and] would then seize those items and then split those items with a third party.” It was that information that led to the sting operation that gave rise to this prosecution. Furthermore, an addendum to Jackson’s Presentence Investigation Report (PSR) remarked that “Jackson had engaged in this type of illegal activity for quite some time, and he purposely conducted this type of illegal business armed with a weapon in order to intimidate the victims.” Addendum to PSR at 1.
Although Jackson did not object to Bernardoni’s testimony (he did object to the PSR addendum), he repeatedly urged the district court not to consider any “other incidents, crimes, or alleged crimes” that had not been charged. And it seems that the district court took Jackson’s objections to heart, for the record contains no indication that the district court gave any weight to Jackson’s prior, uncharged conduct or that it made reference to such conduct while imposing its sentence. Rather, it noted Jackson’s “lack of a criminal history.” We therefore find meritless Jackson’s contention that the district court’s sentence was based, even in part, on uncharged conduct.
In any event, judge-found facts regarding uncharged conduct may be considered by the district court in selecting a sentence. See United States v. Red Elk, 426 F.3d 948, 951 (8th Cir.2005). So long as the district court treats the guidelines as advisory, as it did here, Booker is not to the contrary. See Booker, 543 U.S. at 233, 259–60; United States v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir.2006).
V.
The sentence is affirmed.
FOOTNOTES
1. The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri.
WOLLMAN, Circuit Judge.

Alternative Perpetrator, First Degree Murder

There are certain defenses that are called affirmative defenses. In such a defense, the Defendant offers evidence that will negate guilt. This is different than a standard not guilty defense. In a standard not guilty defense, the defendant does not present evidence. The Constitution does not require the Defendant to introduce evidence as the Defendant is already presumed innocent and the government bears the burden to prove the Defendant guilty beyond a reasonable doubt.

There are certain rules that go along with Affirmative Defenses before the trial court will allow the jury to hear such evidence. This includes notice requirements and evidentiary weight thresholds. The analysis by the Court should also consider the Defendant’s Right to present a defense. Read below to view a summary on a case about a first degree murder case where the Minnesota Supreme Court ruled that a trial court should have allowed Defendant to argue that an alternative perpetrator committed the crime. A link to the complete case is at the end of the summary.

State v Ferguson (SUP CT, 10-19-2011, A10-0499, Hennepin Co)

Alternative Perpetrator

Defendant Ferguson was convicted of First Degree Murder. The trial court prohibited Defendant Ferguson from introducing alternative perpetrator evidence to the jury. In order for alternative perpetrator evidence to be admissible, the evidence about the alternative perpetrator must create must connect the alternative perpetrator to the crime.

Defendant Ferguson proffered that the alternative perpetrator he was suggesting committed the crime, had similar physical features to the Defendant Ferguson, drove car similar to Defendant Ferguson and was identified as being in the area at time of crime.

The Supreme Court Ruled that the Trial Court erred and Defendant Ferguson met the threshold for the admission of alternative perpetrator evidence and the jury should have been allowed to consider this evidence. The Supreme Court of Minnesota ruled that it was error to exclude it.

The Supreme Court also noted that only one person identified the defendant as the shooter. The Supreme Court therefore, also analyzed whether the denial of Defendant’s defense of alternative perpetrator was harmless beyond a reasonable doubt. The Supreme Court this error was not harmless and therefore, Defendant Ferguson’s right to present a complete defense was violated.

The Conviction reversed and a new trial was ordered by the Supreme Court of Minnesota.

Here is a link to the complete opinion: http://minnesotasupremecourtopinions.justia.com/2011/10/20/state-v-ferguson/

Probationers and Parolees have a limited expectation of privacy

A Parolee or a person on probation soon finds out that the application of their Constitutional Rights is analyzed much different than a person not on Parole or probation. The person may be required to do drug testing, make scheduled meetings, or as the following case shows, be subjected to searches of their person or residence without the requirement of a search warrant. In this case, the parolee learned from the Court that his expectation of Privacy under the 4th Amendment of the Constitution is much less than the citizen not on parole or probation. I have included a summary of the case first, followed by the entire opinion for you to read how the application of your Rights are analyzed by the Court when you are on probation or parole.

State of Minnesota v Heaton
(CT APPS, 05-07-2012, A11-659, St. Louis Co)

Issue: Search of parolee’s person and residence

In this case, the court holds that a parolee’s house and person can be searched pursuant to a valid parole condition and upon reasonable suspicion.

The facts which gave rise to the reasonable suspicion were as follows:

Defendant Heaton was a passenger in a car that was stopped by the police. An occupant, not Defendant Heaton, was arrested on an outstanding warrant. Defendant Heaton had $3000 in cash on his person which he said he got from a sale of his car. However, Defendant Heaton could not provide proof of the transaction, or the name of the person to whom he sold the car.

Defendant Heaton’s Parole officer was notified by police about the stop. The Parole Officer waited for Defendant Heaton to return to his apartment and then searched him. During the search, the Parole Officer found methamphetamine, $2,600 in cash and a gun in Defendant Heaton’s apartment. Defendant Heaton was subsequently convicted of a drug offense and gun possession. Defendant Heaton was then sentenced to 60 months and 100 months concurrent.

Conviction affirmed there was reasonable suspicion to search. The concurring opinion states that a Parole Officer does not even need reasonable suspicion to search.

STATE OF MINNESOTA IN COURT OF APPEALS
State of Minnesota, Respondent,
vs.
Stirling Michael Heaton, Appellant.
Filed May 7, 2012

Affirmed

Hudson,Judge
Concurring specially, Ross, Judge
St. Louis County District Court File No. 69DU-CR-10-2498

Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, Minnesota; andMark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent) David W. Merchant, Chief Appellate Public Defender, Jodie Lee Carlson, Assistant Public Defender,
St. Paul, Minnesota; andBradley T. Smith, Special Assistant Public Defender, Dorsey & Whitney LLP, Minneapolis, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge;Halbrooks, Judge; and
Hudson,Judge
.
S Y L L A B U S

No more than reasonable suspicion is required to search a parolee’s home
when the search is conducted pursuant to a valid parole condition.

O P I N I O N

HUDSON,Judge

On appeal from his convictions of possession of a firearm by a felon and possession of methamphetamine, appellant argues that (a) his right to be free from warrantless searches was violated when his parole officer conducted a search of his apartment and (b) because he did not consent to the warrantless search, the district court erred by not suppressing evidence
discovered during the search. Because a valid, warrantless search of a parolee’s home may be conducted if the search was conducted pursuant to a valid parole condition and was supported by reasonable suspicion, we affirm.

FACTS
On July 13, 2009, appellant was released from prison after his incarceration for unlawful possession of a firearm by a prohibited person;
appellant was then placed on intensive supervised release. Before appellant’s release, the parole officer assigned to supervise appellant
familiarized himself with appellant’s criminal history and prior contacts with law enforcement, including a previous parole compliance search in 2006
that resulted in the discovery of a loaded pistol. Discovery of the firearm led to appellant’s conviction. Appellant’s release status was reduced on July 13, 2010, from intensive supervised release to supervised release status. Appellant’s conditions of release stated: “The offender will submit at any time to an unannounced visit and/or search of the offender’s person, vehicle or premises by the agent/designee.” There is no dispute that appellant signed the conditions of release.

On July 22, 2010, appellant was a passenger in a vehicle stopped by Carlton County law enforcement. Another occupant of the vehicle was arrested on an outstanding warrant. During the stop, appellant was searched, and officers found that he was carrying $3,000 in cash. Appellant told the officers that the cash came from the sale of his car, but he was unable to provide documentation regarding the transaction. The
next day, appellant’s parole officer was informed by law enforcement
about the traffic stop. Appellant also contacted the parole officer that day, as required by his parole release conditions, and told him of the contact with law enforcement. The parole officer thought it “very odd” that appellant, with a modestly paying job, would carry $3,000 in cash with no documentation to explain the source of the income. Based on the discovery of the cash and the parole officer’s knowledge of the 2006 search, the parole officer determined that “there was a strong possibility” that appellant’s apartment contained contraband. The parole officer, accompanied by three plain clothes police officers, went to appellant’s apartment and knocked on the door, but appellant was not there. The parole officer then went to the restaurant where appellant worked as a cook, but he was unable to speak with him because the restaurant wa
s busy. The parole officer returned to appellant’s apartment, where the officers remained, and waited for appellant to return.

Around midnight, appellant was dropped off at home by a co-worker and found the parole officer and the police officers waiting for him in an alley behind his apartment. Appellant was handcuffed and searched, during which approximately $2,600 in cash was found on appellant, and appellant’s apartment key was removed from his pocket.
The parole officer then directed everyone to enter appellant’s apartment and used appellant’s key to unlock the front door of the apartment. After entering the apartment, the parole officer with all three police officers present asked appellant about the traffic stop and the large amount of cash he had been carrying. Appellant told the parole officer that he had sold his car to a man from the Mille Lacs/Hinckley area and knew the buyer’s first name but not his last. Appellant could not provide a receipt or any other documentation regarding the sale.

At this point, the parole officer explained his concerns about the stop and the cash appellant had been carrying and told appellant he wanted to conduct a compliance search of the apartment. The parole officer testified that he then asked appellant for consent to search the apartment. The parole officer further testified that appellant “was silent. He did not say
no, he did not say yes.” One of the officers escorted appellant to the bathroom and stayed with him for the duration of the search. During t
he search, a pistol wrapped in a bandana was found under the kitchen sink and suspected methamphetamine and drug paraphernalia were located
on top of the kitchen cabinets. These items were seized and inventoried.
The state charged appellant with possession of a firearm by a felon, in violation of Minn. Stat. § 624.713, subd. 1 (Supp. 2009), and two counts of second degree possession or sale of methamphetamine, in violation of Minn. Stat. § 152.022, subds. 1, 2 (2008).

Appellant moved to suppress the evidence of the firearm and drugs, claiming that he did not consent to the search, that the parole officer who authorized and conducted the search lacked reasonable suspicion, and the search was pretextual. The district court denied appellant’s motion to suppress, calling the decision “a very close case.”

The district court applied two distinct tests to its analysis of whether the agents conducted a valid search: the special needs test under Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164(1987), and the totality of the circumstances test under State v. Anderson, 733 N.W.2d 128 (Minn. 2007)
(citing United States v. Knights, 534 U.S. 112, 122 S. Ct. 587 (2001)). Under both, the district court determined that the search was supported by reasonable suspicion and therefore valid.

Appellant waived his right to a jury trial and agreed to a bench trial on stipulated facts. The district court found appellant guilty of the firearms offense and one count of possession of methamphetamine and sentenced him to concurrent executed prison terms of 60 months for the gun offense and 100 months for the drug offense. This appeal follows.

ISSUE

Did the district court err by not suppressing evidence discovered during the warrantless search of appellant’s residence on the ground that the officers lacked reasonable suspicion?

ANALYSIS

A district court’s ruling on constitutional questions involving searches and
seizures is reviewed de novo. Anderson, 733 N.W.2d at136. We review
the district court’s factual findings for clear error. Id. Appellant argues that the district court erred by denying his motion to suppress the evidence discovered during the warrantless search because his parole officer lacked reasonable suspicion of wrongdoing.

An individual’s right to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution. The Fourth Amendment is a personal right, the protection of which may be invoked by showing that a person “has an expectation of privacy in the place searched, and that his expectation is reasonable.” Minnesota v. Carter
, 525 U.S. 83, 88, 119 S.Ct. 469, 472 (1998). The Minnesota Supreme Court has held that probationers have a diminished expectation of privacy, and, accordingly, their homes may be searched without a warrant as long as a valid condition of probation exists and authorities have reasonable suspicion of criminal conduct. Anderson, 733 N.W.2d at 139–40. But Minnesota courts have not addressed whether an appellant’s status as a
parolee similarly diminishes the expectation of privacy and likewise permits a warrantless search when police officers can establish reasonable suspicion or whether police officers need any suspicion at all.

Respondent asserts that a suspicionless search of a parolee’s home is permitted, relying on Samson v. California, 547 U.S. 843, 126 S. Ct. 2193 (2006). Samson and the instant case share factual similarities, but Samson differs substantively. In Samson, the applicable statute stated that a parolee “shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Id. at 846, 126 S. Ct. at 2196 (citing Cal. Penal Code Ann. §3067(a) (West 2000)). The parole search condition imposed under Minnesota law states that “the offender shall submit at any time to an Appellant does not dispute the validity of his parole conditions. Unannounced search of the offender’s person, vehicle, or premises.” Minn. Stat. §244.14, subd. 4 (2008). Unlike the search condition recited in California law, appellant’s search condition pursuant to Minnesota law contains no language explicitly eliminating suspicion or cause in connection with the search of a parolee. And although respondent suggests that the “at any time” language in Minn. Stat. § 244.14, subd. 4, allows a suspicionless search, in our view, the “at any time” language merely provides a temporal condition, allowing a search at any point during the day, such as the search that occurred here shortly after midnight.

Accordingly, Samson’s authorization of a suspicionless search does not
Apply here. Therefore, as in Anderson, we begin by balancing the parolee’s right to privacy against any legitimate government interests to determine if reasonable suspicion, rather than a warrant and probable cause, is required to search a parolee’s home. Anderson, 733 N.W.2d at 140. In doing so, we note that appellant’s expectation of privacy was diminished simply by his status as a parolee, just as a probationer’s expectation of privacy is diminished by his status as a probationer. Id.
at 139–40; see also Samson, 547 U.S. at 850, 126 S. Ct. at 2198 (“[P]arolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.”). Additionally, it is undisputed that appellant signed the conditions of the state’s reliance on State v. Bartylla, 755 N.W.2d 8 (Minn. 2008), is likewise
unavailing. Citing Samson, Bartylla held that the warrantless, suspicionless collection of DNA as a result of a prior felony conviction did not violate the Fourth Amendment. Id. at 17–19. Notably, Bartylla involved an ncarcerated person rather than a conditional releasee. And nothing in Bartylla suggests that its holding is applicable to other, more intrusive suspicionless searches, such as the search of a home.

Defendant’s release, which stated that he would “submit at any time to an unannounced visit and/or search of the offender’s person, vehicle or premises by the agent/designee.” By agreeing to this condition of parole, appellant diminished his reasonable expectation of privacy. Knights, 534 U.S. at 119–20, 122 S. Ct. at 591–92; Anderson, 733 N.W.2d at 139.
And, as with probationers, the state has a legitimate, substantial interest in ensuring that parolees abide by the terms of parole and “protecting potential victims from illegal conduct” the parolee may commit. Anderson, 733 N.W.2d at 140; see also Samson, 547 U.S. at 844, 126 S.Ct. at 2195 (“A State has an ‘overwhelming interest’ in supervising parolees because ‘parolees . . . are more likely to commit future criminal offenses.’” (quotation omitted)).

Accordingly, we hold that these legitimate government interests extend to parolees and probationers alike and conclude that the search of a parolee’s home requires only reasonable suspicion. Therefore, a warrantless search of appellant’s apartment was lawful if reasonable suspicion of criminal conduct can be established.

Reasonable suspicion requires specific, articulable facts that, taken together with rational inferences from the facts, reasonably warrant the intrusion at issue. State v. Davis, 732 N.W.2d 173, 182 (Minn. 2007). The showing required is not high, but it requires “more than an unarticulated hunch” and the ability of an officer “to point to something that objectively supports the suspicion at issue.” Id. (quotation omitted). In determining whether reasonable suspicion exists, we weigh the totality of the circumstances, which may include otherwise innocent factors. State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998). The district court determined that the search of appellant’s apartment was based on
“more than an unarticulated hunch” and was therefore supported by reasonable suspicion.

The district court identified four facts to support its determination: (1) the parole officer knew that appellant, as a parolee, had recently been placed
on a reduced supervision status; (2) the parole officer knew that appellant possessed a significant amount of cash and had a “thin” explanation for why he possessed it; (3) the parole officer knew of appellant’s limited financial means; and (4) the parole officer knew that, when stopped, appellant was with an individual who had an outstanding warrant.

Appellant argues that these four factors separately and collectively point to innocent behavior that cannot give rise to reasonable suspicion. But individual factors consistent with innocent behavior may, when taken
together, amount to reasonable suspicion. Id. (citing Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754 (1980) (stating circumstances could arise where innocent factors together may justify suspicion that criminal activity was afoot)).
Appellant first argues that, absent other indications of wrongdoing, possessing a large amount of cash does not establish reasonable suspicion. Appellant contends that the two cases cited by the district court on the cash possession factor, United States v. Johnigan, 90 F.3d 1332 (8th Cir. 1996) and United States v. Stephenson, 924 F.2d 753 (8th Cir. 1991) are inapposite. In Stephenson, appellant argues, possession of cash was not the sole reason upon which the district court determined that reasonable suspicion existed. Stephenson, 924 F.2d at 759. Though true, this observation actually supports the district court’s reasoning because the district court here, likewise, did not rely solely on 10 the possession of cash to support its determination that the officers had reasonable suspicion for the search.

In its order, the district court stated that “possessing a large quantity of cash without an adequate explanation, in light of the surrounding circumstances, is sufficient to establish reasonable suspicion.” (Emphasis added.) Here, the surrounding circumstances included appellant’s recent change in supervision status, his lack of documentation for the large amount of money he possessed, and his previous parole violation for possessing drugs and a firearm.

Appellant is correct, however, that the district court’s reliance on Johnigan
was misplaced because reasonable suspicion in Johnigan was based on the suspect’s outstanding warrants, not the cash later found in a search incident to arrest. Johnigan, 90 F.3d at 1336. On its own, the possession of
$3,000 may be an innocent circumstance, but when considered as part of
the totality of the circumstances, it supports the district court’s finding that the parole officer had reasonable suspicion for the warrantless search.

Second, appellant argues that his status as a parolee and his criminal history, on their own, do not give rise to reasonable suspicion. Specifically, appellant argues that all parolees have criminal records and to allow criminal history to be a basis for reasonable suspicion would result in unlimited warrantless searches in the homes of parolees.

Appellant’s argument has some merit, but this record persuades us that appellant’s argument nevertheless fails. We note first that the district court’s rationale was not based on appellant’s criminal history per se. Rather, the district court supported its reasonable-suspicion determination based on the change in appellant’s supervisory status, not his criminal history. And although the parole officer did rely on appellant’s history regarding the 2006 search and his subsequent conviction, the parole officer’s knowledge of appellant’s 2006 parole violation was also information “that objectively supports” the parole officer’s suspicion that criminal activity was afoot. Davis, 732 N.W.2d at 182. Third, appellant argues that the fact that appellant was in the presence of an individual with an outstanding warrant, on its own, does not indicate that appellant was engaged in criminal activity.

Appellant notes that suspicion must be particularized to the suspect and
that association with a person previously engaged in criminal activity does
not support reasonable suspicion. Anderson, 733 N.W.2d at 138 (quotation omitted); State v. Diede, 795 N.W.2d 836, 844 (Minn. 2011); see also State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998) (holding that mere association with suspected drug dealer, including driving dealer’s car, did not provide reasonable basis to suspect person may be armed and dangerous). Appellant asserts that, though his companion at the time of the stop in Carlton County had an outstanding warrant, there was no indication that appellant was engaged in criminal activity. Appellant’s argument is persuasive because our supreme court has held that particularized suspicion of appellant’s criminal activity is required. State v. Martinson, 581 N.W.2d at 850 (stating that reasonable suspicion requires “a particularized and objective basis for suspecting the person . . . of criminal activity”) (quotations omitted). But even discounting this factor, based on the totality of the circumstances, we conclude that the search was supported by reasonable suspicion. Fourth, appellant argues that his limited financial means should not be used to support reasonable suspicion. Appellant provides no caselaw to support this argument.
He simply asserts that he provided a plausible explanation for being in possession of the cash—the sale of his car—which was corroborated by the fact that his car was not parked at his home when officers arrived, and appellant was later dropped off by a coworker. But appellant neglects to mention that he could not provide the last name of the purchaser or verify the sale of the car with documentation of any kind. Appellant also asserts a policy argument, noting that if reasonable suspicion can be predicated upon limited financial means, many innocent people of limited means will be implicated. This argument again mistakenly presumes that appellant’s limited means is viewed in isolation, when, in fact, it is but one part of a totality-of-the-circumstances analysis.

We conclude that ample reasonable suspicion existed to conduct a search of appellant’s home, given that the parole officer knew that appellant possessed a large amount of cash unsupported by documentation, even though he held a low-paying job, and had previously violated his parole by possessing drugs and a firearm. Because we conclude that reasonable suspicion existed to search appellant’s apartment, we need not reach appellant’s consent argument.

Appellant additionally argues that his right against warrantless searches was violated under the state constitution. Courts look to the state Constitution as a basis for individual rights “with restraint and some delicacy,” particularly when the right at stake is guaranteed by the same language in the federal constitution. Bartylla, 755 N.W.2d at 18; Anderson, 733 N.W.2d at 140 (quotation omitted). Bartylla and Anderson deemed the
federal precedent on warrantless searches as adequate protection of the basic rights and liberties of state citizens and not a radical departure from Fourth Amendment precedent. 13 Bartylla, 755 N.W.2d at 19; Anderson, 733 N.W.2d at 140. The same reasoning applies here, eliminating the need for a separate analysis under the state constitution.

D E C I S I O N

Because appellant was a parolee when officers searched his home and the search was conducted pursuant to a condition of parole and supported by reasonable suspicion, the district court did not err when it refused to suppress the firearms, drugs, and drug paraphernalia that were seized in the search of appellant’s home.

Affirmed.

CS-1
ROSS, Judge (concurring specially)

I respectfully disagree with the majority’s declaration that the reasonable suspicion standard applies to searches of parolees, and so I write separately, concurring only in the result. The United States Supreme Court’s black-letter holding in Samson v. California seems to provide the unambiguous standard that we must apply to Heaton’s Fourth Amendment challenge: “[W]e conclude that the Fourth Amendment does not prohibit a
police officer from conducting a suspicionless search of a parolee.” 547 U.S. 843, 857, 126 S. Ct. 2193, 2202 (2006). We should follow that holding.

I believe that two mistaken premises have led the majority to its mistaken conclusion that Samson does not apply to measure the constitutionality of the parolee search in this case. The majority first mistakenly adopts the reasonable suspicion standard by assuming that State v. Anderson, 733 N.W.2d 128 (Minn. 2007), is more factually similar to this case than Samson. I believe that the assumption is wrong. Samson involved the
suspicionless search of a parolee who was on supervised release from prison while serving a sentence for possession of a firearm as a felon. 547 U.S. at 846, 126 S.Ct. at 2196. This case identically involves the suspicionless search of a parolee who was on supervised release from prison while serving a sentence for possession of a firearm as a felon. In contrast to these mirror-image cases, Anderson involved the search of a probationer, not a parolee, 733 N.W.2d at 131, and, as the Samson court explained, a parolee has less of an expectation of privacy for Fourth Amendment search purposes than does a probationer. Samson, 547 U.S. at 850, 126 S. Ct. at 2198 (“On this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment.”).

The majority’s second mistake is that it renders significant what seems to be an insignificant difference between the parolee-release agreement in Samson and the similar agreement in this case. In Samson, the applicable parole agreement provided that the parolee was required “to be subject to search or seizure by a parole officer or other peace officer at any time . . . with or without a search warrant and with or without cause.” 547 U.S. at 846, 126 S. Ct. at 2196 (quotation omitted). Similarly in this case, consistent with state statutory and administrative law, Heaton’s parole agreement acknowledged that he “will submit at any time to an unannounced visit and/or search of [his] person, vehicle, or premises by the agent/designee.” It is true, as Heaton and the majority point out, that, unlike the parole agreement in Samson, Heaton’s agreement here did not expressly include the words “with or without cause.” But this is merely a semantic, not substantive, difference. The difference between having to
“submit . . . to” an “unannounced search” occurring “any time” and having to be “subject to” a “search . . . with or without cause” occurring “at any time” is not constitutionally material; each provision delivers the same obliterating blow to any reasonable parolee’s expectation of privacy. This is because each informs the parolee that he is subject to an unanticipated search at any time, and the suspicionless nature of that potential search is just as implicitly clear under the Minnesota language as it is explicitly clear under Samson’s California language. “Anytime” means anytime; and it cannot really be anytime if it is limited only to those times when reasonable suspicion exists.

For just $0.99, now you too can create your own independent Nation online.

The case of United States v. Reed is an interesting case. In an attempt to avoid federal laws as an independent American Indian nation, Mr. Reed became a member of an online tribal nation. Only problem is that this internet nation is not a recognized nation by the Federal Government. Mr. Reed then relied upon his believed sovereignty to threaten a federal court judge, convey the threat to the Federal Bureau of Investigation (FBI) and then threaten jail members with the use of his 9 mm hand gun. Read below to find out more about this truth is stranger than fiction case, or call me at 651-200-3484

UNITED STATES v. REED
Federal District Court of North Dakota

Defendant was convicted of possession of a firearm by a fugitive and
asserted insufficient evidence to support “constructive possession”
verdict. He also challenged the court’s instruction defining “fugitive”.

Although not a Native American, the defendant used the internet to become a
member of the unrecognized Little Shell Nation Indian Tribe and then became
the self proclaimed tribal attorney general. He challenged a federal
court’s jurisdiction over fellow non-Native American tribal members by
leaving a threat to harm a federal court judge on the judge’s voice mail.
The defendant repeated this threat in a voice mail to the FBI.

In the meantime, a Nevada state court issued a capias warrant for the defendant’s
failure to appear for a non-related state prosecution. The FBI tracked him
to North Dakota where he was arrested on the capias warrant. While incarcerated,
the defendant had a jail visit and made a phone call, both taped, repeating
the threat and mentions his 9mm hand gun. When a fellow non-Native
American tribal member was prevented from seeing the defendant at the jail,
the defendant broadened his threats and defiantly yelled that he would
use his 9mm hand gun in the safe in his house. The subsequent search
warrant discovered a 9 mm. hand gun and personal venue in the defendant’s
safe in his home.

The court found the evidence was sufficient to find that Defendant was a fugitive from justice regarding the capias warrant from Nevada and that he possessed a firearm while a fugitive.

Is This How Ma Barker Got Started?

People are often amazed to find out what they did in the past that may not be considered illegal, or even minor and unrelated to a current charge, can be used as evidence in a current trial by the prosecution. One such scenario is Federal Rule of Evidence 404. This Rule deals with character and acts of an accused. The general rule is that a person’s character or a trait of his character can’t be used at the instant trial to prove that because he acted that way in the past, he must have acted that in the current accusations. Of course, as with everything else, there are exceptions. To see how exceptions were applied in one case where a son taught mom how to shoot a machine gun read the case below

One exception is if the accused offers up a particular trait. Once the accused brings his character into play, then evidence showing this claim not to be true, may be heard by the jury.

Another exception includes matters that include not only previous crimes, but also non criminal acts that are considered wrongs or bad acts. In this instance, again, this information may not be used to prove the character of the person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake.

Such scenarios are outlined in the case below. In this case, the Defendant chose to video tape himself showing mom how to shoot a machine gun. While this act in itself may not have been a crime, the Court said the video could show the jury the Defendant’s motive to possess, intent to posses, his plan to possess, his knowledge to possess, his lack of mistake in knowing what was possessed and his identity toward the possession of the machine gun.

The Defendant chose to take the stand and raised his character as a proud military person protecting his country as character for the jury to consider before passing judgment of guilty or not guilty. Once this door was opened, the government prosecutor was then able to bring up the Defendant’s dishonorable Discharge. This is an example as to why a Defendant should think long and hard before ever waiving their 5th Amendment Rights to Remain Silent and choose to testify at their trial.

United States v. Guy Allen Op.
App. from E.D. Mo.

Fact Summary: A Federal Jury convicted Defendant Allen of one count of possession of illegal machine guns. The Federal District Court in Missouri sentenced defendant Allen to 24 months in Federal Prison.

Defendant Allen Appealed and argues that the Federal District Court erred with its evidentiary ruling at trial by allowing the federal government to show a video of him teaching his mother to fire a machine gun and also to cross-examine him about his military service and discharge.

Issues:

(1) Video Footage

A. The 8th Circuit Federal Court of Appeals Ruled:

1. The Government offered the video under Federal Rule of Evidence 404(b).

2. This court characterizes 404(b) as a rule of inclusion rather than exclusion and will reverse the trial court only when such evidence clearly has no bearing on the issues in the case and was introduced solely to prove defendant’s propensity to commit criminal acts.

3. Evidence is admissible under 404(b) if its:

a. Relevant to a material issue;

b. Similar in kind and not overly remote in time to the crime charged;

c. supported by sufficient evidence;

d. higher in probative value than its prejudicial effect;

4. In this case the video was admissible to show motive, intent, knowledge
or other permissible purposes.

a. Doesn’t matter if the prior act was a crime or not.

(2) Military Service including arrests, charges, subsequent discharge.

a. The 8th Circuit Federal Court of Appeals noted that evidence of character is admissible in criminal cases where the defendant introduces evidence aimed at portraying his own character in a positive light and the prosecution is only
rebutting the inference drawn from such statements.
1. Allen opened the door to being cross examined on his military failings on direct examination by saying he was proud of his military service.

Possession of Ammunition leads to 15 years in prison

Possession of Ammunition leads to 15 years in Federal Prison.

Many people are unaware of the consequences that may result from their convictions. A conviction in State Court can have not only consequences on future convictions in State Court by enhancing the penalties, or the charges, but can also effect employment opportunities, housing opportunities and criminal charges in Federal Court.

In the case below, a young man with a prior felony conviction was sentenced to 15 years in Federal Prison for possessing, not a weapon, but ammunition. Possessing Ammunition when a felon is violation of Federal Law. This Defendant’s prison sentence was extended because the Court increased his incarceration for what the federal law considers violent crimes. There are many convictions that may be considered violent crimes in the Federal System. Many people are surprised to find out their Drunk Driving conviction in State Court can have an effect on their criminal history sentencing score in Federal Court.

f you have questions about how prior convictions may effect a sentence, please call me at 651-200-3484, or see my video on my main page to understand how I might help.

To understand what the court was considering when determining a crime of violence in this case, here is the Minnesota Statute on Burglary in the Second Degree. It is important to remember that Burglary is different than Robbery.

MINNESOTA §609.582 BURGLARY.
Subdivision 1.Burglary in the first degree.
Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $35,000, or both, if:
(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building;
(b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive; or
(c) the burglar assaults a person within the building or on the building’s appurtenant property.
Subd. 1a.Mandatory minimum sentence for burglary of occupied dwelling.
A person convicted of committing burglary of an occupied dwelling, as defined in subdivision 1, clause (a), must be committed to the commissioner of corrections or county workhouse for not less than six months.
Subd. 2.Burglary in the second degree.
(a) Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if:
(1) the building is a dwelling;
(2) the portion of the building entered contains a banking business or other business of receiving securities or other valuable papers for deposit or safekeeping and the entry is with force or threat of force;
(3) the portion of the building entered contains a pharmacy or other lawful business or practice in which controlled substances are routinely held or stored, and the entry is forcible; or
(4) when entering or while in the building, the burglar possesses a tool to gain access to money or property.
(b) Whoever enters a government building, religious establishment, historic property, or school building without consent and with intent to commit a crime under section 609.52 or 609.595, or enters a government building, religious establishment, historic property, or school building without consent and commits a crime under section 609.52 or 609.595 while in the building, either directly or as an accomplice, commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

United States v. Thomas Boldt Per Curiam
App. from Dist. of Minn.
POSSESSION OF AMMUNITION

Fact Summary: Defendant Boldt was a convicted felon. Defendant Boldt pleaded guilty to unlawful possession of ammunition by a felon. Defendant Bold was sentenced under the Armed Career Criminal Act (ACCA ), 18 U.S.C. § 924.

The Court then sentenced Defendant Boldt to 15 years in prison.

Defendant Boldt appealed his sentence claiming that his prior convictions do not qualify as violent felonies under the Armed Career Criminal Act and also that the sentence violated the 8th Amendment of the Constitution as cruel and unusual punishment.

Issues:

(1) Defendant’s Prior Convictions were for Burglary 2nd Degree.

a. The 8th Circuit Court of Appeals said these are considered violent felonies under Federal law.

(2) Federal Constitution 8th Amendment, Cruel and Unusual Punishment.

a. Defendant Boldt said he didn’t know it was illegal to possess bullets.

b. The 8th Circuit Court of Appeals said there is no 8th Amendment violation. The law applies whether a person is aware that his actions were illegal or not.

Double Jeopardy and Private Searches – “He got weed, He got weed”

Double Jeopardy stands for the principle that a person can’t be convicted for the same crime twice. Sometimes laws are created that involve the exact same action. A conviction for both crimes can have an effect on sentencing and how many years someone may spend in prison.

Below is a case that discusses what the courts look to when considering Double Jeopardy. This case also has a good discussion on when the right to invoke counsel has taken place and when Miranda is necessary.

Miranda is not required for statements taken from people not in custody. In determining custody status, the Courts will look to the objective facts and not the subjective intent of the officers.

Finally, this case also discusses when the 4th Amendment of the Constitution applies for searches and why a search by a private party not acting on the behalf of the government is not governed by the 4th Amendment of the Constitution.

When reading this case, I couldn’t help but think of the Chris Rock video where he plays a man who upsets his girlfriend in the car. When the officers pull them over, the woman starts yelling, “he got weed, he got weed”

United States v. Randall Muhlenbruch
App. from S.D. Iowa

CONVICTION OF RECEIPT AND POSSESSION OF CHILD PORNOGRAPHY BASED
ON SAME ACT VIOLATES DOUBLE JEOPARDY CLAUSE

Factual Summary:

Defendant Muhlenbruch was assaulted by his wife. The wife was ordered to move out of the apartment, but she still stayed. The then Wife claimed she found Child Pornography on her husband’s computer. The wife claims when she confronted Defendant Muhlenbruch he agreed to delete the images but she then convinced him not to do so. When Defendant Muhlenbruch left the home to run errands, the wife had a friend come to the home and copy the Child Pornograpy files onto a CD. The wife’s friend then took the images to the police.

The officers viewed the images and prepared a search warrant. Officers conducted surveillance on the apartment. When Defendant Muhlenbruch and his wife showed up, officers approached Defendant Muhlenbruch. Defendant Muhlenbruch was not placed under arrest but was taken to the police station in the back of a patrol car for questioning. The wife told officers she found the Child Pornography and had friend make copies of it to turn over to the police.

Defendant Muhlenbruch was interrogated and the interrogation was recorded on DVD. Officers said he was free to leave. Defendant Muhlenbruch asked if he needed an attorney. Offices said that was up to him. Muhlenbruch then confessed. After the confession, Defendant Muhlenbruch again asked if he should have an attorney. Finally, Defendant Muhlenbruch asked for a lawyer.

The facts are clear that Defendant Muhlenbruch was not advised of his Miranda rights before his statement was taken. Defendant Muhlenbruch eventually consented to the search of his computer as well. Defendant Muhlenbruch was not arrested and was taken back home.

Defendant Muhlenbruch was indicted by a Grand Jury. Defendant Muhlenbruch filed motions to suppress his statements and the evidence obtained during search of his apartment and the computers hard drive.

The Federal District Court denied the motions. The Federal District Court sentenced Defendant Muhlenbruch to two concurrent 120 month. sentences after jury verdict of guilty on knowingly receiving Child Pornography and knowingly possession Child Pornography.

Issues:

(1) Motion to Suppress Statements and Evidence
a. Defendant Muhlenbruch asserts that his statements should be suppressed because he was nott advised of his Miranda rights and the statements were involuntary.

b. The Federeal 8th Circuit Court of Appeals ruled:

1. Miranda warnings are required when interrogation is initiated by officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

2. Custody is determined under totality of circumstances. The Court looks to whether a reasonable person in his position would consider his freedom of movement restricted to the degree associated with formal arrest.

3. The focus of the analysis is on the objective circumstances, not the subjective opinions or determinations of the officers.

4. The factors to consider are:

a. whether the suspect was informed he was free to
leave and answering was voluntary;

b. whether the suspect possessed freedom of movement;

c. whether the suspect initiated contact or voluntarily
acquiesced to the statement;

d. whether the strong arm tactics or strategies were
employed by law enforcement;

e. whether the atmosphere of the interview was police dominated;

f. whether the suspect was placed under arrest at end
of questioning.

5. In this case the Federal Court of Appeals Ruled that the Defendant was not in custody.

a. Since he was not in custody there is no need to
provide Miranda and no need to evaluate argument that officers denied his unambiguous request for counsel.

b. Regarding the voluntary nature of his statement, the Federal Court of Appeals 8th Circuit said:
1. A conviction based on involuntary confession, obtained through police coercion violates Due Process and any such conviction must be overturned.

2. A statement is considered involuntary if it was extracted by threats, violence, or express or implied promises sufficient to overbear the Defendant’s will and critically impair his capacity for self-determination.

3. The Court will look at the totality of the ircumstances and the conduct of the officers and characteristics of the accused.

4. In this case, The Federal Court of Appeals 8th Circuit ruled that the confession was voluntary.

a. there was no indication he was sleep deprived or under influence of alcohol thus making him more susceptible to coercion.

6. Regarding the motion to suppress the evidence found on the Computer, the Federal Court of Appeals 8th Circuit ruled-

A . A search by a private citizen is not subject to the
strictures of the 4th Amendment of the Constitution unless the private citizen is acting as a government agent.

B. In order for a citizen to be considered a government agent, the Court looks to:

a. whether the gov’t had knowledge of and
acquiesced in the search;

b. whether the citizen intended to assist law
enforcement to further his own purposes; and

c. whether the citizen acted at the gov’t’s request.

C. In this case, the wife did her own independent investigation and her friend copied the files at the request of the wife, not law enforcement. Therefore, there was no government involvement in the initial search and the 4th Amendment of the Constiution does not apply.

7. The Court then ruled on Double Jeopardy for Possession and Receipt conviction for same images.

a. The 8th Circuit Federal Court of Appeals said:

1. In order to establish a violation of the clause, the Defendant must show he was convicted of two offenses that are in law and fact the same offense.

2. if the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offense or only one is whether each provision
requires a proof of a fact which the other does not.

3. For the analysis, the Court looked to Ball v. U.S. 470 U.S. 856 (1985).

a. The Court determined that Congress did not intend to
punish felons for both possessing and receiving the same firearm under different statutes because proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon.

b. The Federal Court of Appeals in the 9th Circuit in the case of U.S. v. Schales 546 F.3d 965, determined possession of Child Pornography is lesser included offense of receipt of Child Pornography.

4. The 8th Circuit Court of Appeals agreed that that proof of receiving child pornography necessarily includes that of receiving child pornography and therefore the multiple convictions violate double jeopardy.