This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1115
State of Minnesota, Respondent,
vs.
Ashad Jemeir Mayo, Appellant.
Filed June 15, 2015 Affirmed Connolly, Judge
Hennepin County District Court File No. 27-CR-13-31042
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Worke, Judge; and
Chutich, Judge. UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant challenges his conviction of first-degree aggravated robbery. He argues
that the district court erred in denying (1) his motion to suppress evidence of $130 in cash
an officer found in appellant’s pocket because it was speculative to conclude that the
officer would have inevitably found the cash during a search incident to arrest for
appellant’s outstanding warrant and (2) his motion to suppress the victim’s show-up
identification because the show-up procedure was highly suggestive and substantially
likely to result in misidentification. Because we conclude that the cash would inevitably
have been discovered during a search of appellant and that the show-up procedure was
not defective, we affirm.
FACTS
Around 4:30 a.m. on September 20, 2013, T.S. called 911 from a gas station to say
that he had just been robbed at the corner of Lake Street and Harriet Avenue,
Minneapolis, by two men he described as black, having medium builds, and riding
bicycles. He reported that the younger of the two men was in his early 20’s and about
5’6” or 5’7” tall, had a handgun with an extended barrel, and rode a dirt bike; the older
man was in his 30’s, about 6’0” to 6’1” tall, and rode a yellow, 10-speed bicycle.
One block south and five blocks east of the site of the robbery, at 31st Street and
Nicollet Avenue, an officer working in the fifth precinct heard the dispatch report. The
officer looked out the window and saw two black men, one on a yellow 10-speed bicycle
and the other on a smaller, BMX-style bicycle, riding east on 31st Street; no one else was
2 on the street. The officer reported the men’s location and watched them ride east on 31st
Street until they went under the 35W bridge.
Two officers in a squad car near the precinct drove to 31st and Clinton, two blocks
east of the 35W bridge, where they saw appellant riding east on a yellow, 10-speed
bicycle. No one else was on the street.1 The officers drove in front of him, ordered him
to the ground, and conducted a thorough search because T.S. had reported that one of the
robbers had a gun. The officer felt a bulge in appellant’s pants pocket, reached inside the
pocket, and pulled out $130. When appellant was told the police were investigating a
possible robbery, he said he was not involved. The officers ran appellant’s name in their
computer and discovered an outstanding warrant on him.
Meanwhile, another officer went to the gas station to speak to T.S., who told him
that the men who robbed him had fled south down an alley between Harriet Avenue and
Grand Avenue. T.S. got into the officer’s squad car; they drove through the alley to
search for T.S.’s property. The officer heard that a possible suspect was now at Park
Avenue and 31st Street and told T.S. the police wanted him to look at “a possible person
involved in the robbery.” T.S. said he could identify the men who had robbed him. The
officer did not tell T.S. that they had a suspect in custody.
When T.S. arrived, the officer with him parked so the lights of his squad car shone
on the car in which appellant was sitting. Appellant, who was handcuffed, was then
removed from the car and stood outside for about 30 seconds, illuminated by the squad
1 The other suspect was seen by a different officer and chased on foot, but not caught. An abandoned BMX bike was found in the area of the chase.
3 car’s lights and overhead street lights. T.S. told the officer with him that appellant “was
the guy that was involved in the armed robbery that was . . . riding the yellow 10-speed
bike.” The officer said that T.S. seemed sure about the identification. About 25 or 30
minutes passed between the robbery and T.S.’s identification of appellant.
Appellant was charged with and convicted of first-degree aggravated robbery. He
challenges his conviction, arguing that his motions to suppress the cash taken from him
and the victim’s identification of him should have been granted.
DECISION
1. The motion to suppress the cash
“When reviewing a district court’s pretrial order on a motion to suppress evidence,
we review the district court’s factual findings under a clearly erroneous standard and the
district court’s legal determinations de novo.” State v. Gauster, 752 N.W.2d 496, 502
(Minn. 2008) (quotation omitted).
The district court concluded that, although the cash was illegally seized from
appellant’s pocket, it was admissible because it would have been discovered inevitably.2
5. Illegally seized evidence is nonetheless admissible if the State can establish by a preponderance of the evidence that the fruits of the challenged search ultimately or inevitably would have been discovered by lawful means. The inevitable discovery doctrine is closely related to the independent source doctrine, which will countenance introduction of otherwise illegally-seized evidence if the police could have retrieved it
2 The district court also concluded that the cash was admissible because the officer had probable cause to arrest appellant, and appellant challenges this conclusion. Because we affirm the admission of the cash on the ground of inevitable discovery, we do not address the probable-cause argument.
4 on the basis of information obtained independent of their illegal activity. 6. Here, [the o]fficer . . . conducted a lawful pat down search as the reported crime was a robbery with a weapon. While the cash in [appellant’s] pocket was not obvious contraband, [he] would have been identified by [the] officer . . . and [his] outstanding DOC warrant would have led to his arrest, and [he] would have been searched incident to his arrest [when] the cash would have been inevitably discovered as the result of a lawful search incident to a lawful arrest.
(Quotations and citations omitted). We agree.
Appellant challenges this conclusion, arguing that, when the cash was discovered,
the officer had not yet learned of appellant’s outstanding warrant and would not have
learned of it if he had not illegally found the cash first. But “in the course of a Terry-type
stop, . . . [s]ometimes the officer [investigating] will communicate with others, either
police or private citizens, in an effort . . . to confirm the identification or determine
whether a person of that identity is otherwise wanted.” Michigan v. Summers, 452 U.S.
692, 700, 101 S. Ct. 2857, 2593 n.12 (1981).
The officer stopped appellant because his appearance matched the description of
one of the robbers and he was riding a bicycle that matched the description of one of the
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1115
State of Minnesota, Respondent,
vs.
Ashad Jemeir Mayo, Appellant.
Filed June 15, 2015 Affirmed Connolly, Judge
Hennepin County District Court File No. 27-CR-13-31042
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Worke, Judge; and
Chutich, Judge. UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant challenges his conviction of first-degree aggravated robbery. He argues
that the district court erred in denying (1) his motion to suppress evidence of $130 in cash
an officer found in appellant’s pocket because it was speculative to conclude that the
officer would have inevitably found the cash during a search incident to arrest for
appellant’s outstanding warrant and (2) his motion to suppress the victim’s show-up
identification because the show-up procedure was highly suggestive and substantially
likely to result in misidentification. Because we conclude that the cash would inevitably
have been discovered during a search of appellant and that the show-up procedure was
not defective, we affirm.
FACTS
Around 4:30 a.m. on September 20, 2013, T.S. called 911 from a gas station to say
that he had just been robbed at the corner of Lake Street and Harriet Avenue,
Minneapolis, by two men he described as black, having medium builds, and riding
bicycles. He reported that the younger of the two men was in his early 20’s and about
5’6” or 5’7” tall, had a handgun with an extended barrel, and rode a dirt bike; the older
man was in his 30’s, about 6’0” to 6’1” tall, and rode a yellow, 10-speed bicycle.
One block south and five blocks east of the site of the robbery, at 31st Street and
Nicollet Avenue, an officer working in the fifth precinct heard the dispatch report. The
officer looked out the window and saw two black men, one on a yellow 10-speed bicycle
and the other on a smaller, BMX-style bicycle, riding east on 31st Street; no one else was
2 on the street. The officer reported the men’s location and watched them ride east on 31st
Street until they went under the 35W bridge.
Two officers in a squad car near the precinct drove to 31st and Clinton, two blocks
east of the 35W bridge, where they saw appellant riding east on a yellow, 10-speed
bicycle. No one else was on the street.1 The officers drove in front of him, ordered him
to the ground, and conducted a thorough search because T.S. had reported that one of the
robbers had a gun. The officer felt a bulge in appellant’s pants pocket, reached inside the
pocket, and pulled out $130. When appellant was told the police were investigating a
possible robbery, he said he was not involved. The officers ran appellant’s name in their
computer and discovered an outstanding warrant on him.
Meanwhile, another officer went to the gas station to speak to T.S., who told him
that the men who robbed him had fled south down an alley between Harriet Avenue and
Grand Avenue. T.S. got into the officer’s squad car; they drove through the alley to
search for T.S.’s property. The officer heard that a possible suspect was now at Park
Avenue and 31st Street and told T.S. the police wanted him to look at “a possible person
involved in the robbery.” T.S. said he could identify the men who had robbed him. The
officer did not tell T.S. that they had a suspect in custody.
When T.S. arrived, the officer with him parked so the lights of his squad car shone
on the car in which appellant was sitting. Appellant, who was handcuffed, was then
removed from the car and stood outside for about 30 seconds, illuminated by the squad
1 The other suspect was seen by a different officer and chased on foot, but not caught. An abandoned BMX bike was found in the area of the chase.
3 car’s lights and overhead street lights. T.S. told the officer with him that appellant “was
the guy that was involved in the armed robbery that was . . . riding the yellow 10-speed
bike.” The officer said that T.S. seemed sure about the identification. About 25 or 30
minutes passed between the robbery and T.S.’s identification of appellant.
Appellant was charged with and convicted of first-degree aggravated robbery. He
challenges his conviction, arguing that his motions to suppress the cash taken from him
and the victim’s identification of him should have been granted.
DECISION
1. The motion to suppress the cash
“When reviewing a district court’s pretrial order on a motion to suppress evidence,
we review the district court’s factual findings under a clearly erroneous standard and the
district court’s legal determinations de novo.” State v. Gauster, 752 N.W.2d 496, 502
(Minn. 2008) (quotation omitted).
The district court concluded that, although the cash was illegally seized from
appellant’s pocket, it was admissible because it would have been discovered inevitably.2
5. Illegally seized evidence is nonetheless admissible if the State can establish by a preponderance of the evidence that the fruits of the challenged search ultimately or inevitably would have been discovered by lawful means. The inevitable discovery doctrine is closely related to the independent source doctrine, which will countenance introduction of otherwise illegally-seized evidence if the police could have retrieved it
2 The district court also concluded that the cash was admissible because the officer had probable cause to arrest appellant, and appellant challenges this conclusion. Because we affirm the admission of the cash on the ground of inevitable discovery, we do not address the probable-cause argument.
4 on the basis of information obtained independent of their illegal activity. 6. Here, [the o]fficer . . . conducted a lawful pat down search as the reported crime was a robbery with a weapon. While the cash in [appellant’s] pocket was not obvious contraband, [he] would have been identified by [the] officer . . . and [his] outstanding DOC warrant would have led to his arrest, and [he] would have been searched incident to his arrest [when] the cash would have been inevitably discovered as the result of a lawful search incident to a lawful arrest.
(Quotations and citations omitted). We agree.
Appellant challenges this conclusion, arguing that, when the cash was discovered,
the officer had not yet learned of appellant’s outstanding warrant and would not have
learned of it if he had not illegally found the cash first. But “in the course of a Terry-type
stop, . . . [s]ometimes the officer [investigating] will communicate with others, either
police or private citizens, in an effort . . . to confirm the identification or determine
whether a person of that identity is otherwise wanted.” Michigan v. Summers, 452 U.S.
692, 700, 101 S. Ct. 2857, 2593 n.12 (1981).
The officer stopped appellant because his appearance matched the description of
one of the robbers and he was riding a bicycle that matched the description of one of the
bicycles in the vicinity of the robbery shortly after the robbery. The officer testified that,
knowing the robbery had involved a gun, he wanted to be “a little more thorough [in his
pat search] before [he] put [appellant] in the squad [car].” But, regardless of what the
search produced, the officer would have asked appellant his name and run the name
through the police computer, thus revealing the warrant; appellant would have been
arrested, see State v. Robb, 605 N.W.2d 96, 101 n.2 (Minn. 2000) (once a warrant is
5 discovered, officers must make an arrest); a search would have been performed incident
to the arrest, see State v. Ortega, 770 N.W.2d 145, 149-50 (Minn. 2009) (listing search
incident to a lawful arrest as one of the exceptions to the warrant requirement); and the
cash would have been discovered.
2. The identification
In reviewing whether a defendant has been denied due process by an identification
procedure, this court independently reviews the facts and determines, as a matter of law,
whether suppression was warranted. State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).
A two-part test determines whether a pretrial identification is admissible evidence.
The first question is “whether the procedure was unnecessarily suggestive,” which
includes “whether the defendant was unfairly singled out for identification,” and
ultimately asks “whether the procedure used by the police influenced the witness’[s]
identification of the defendant.” Id. (quotations and citations omitted). T.S., having been
told that he would be shown “a possible person involved in the robbery,” saw appellant,
in handcuffs, taken from a squad car by an officer. “In dictum, the supreme court in
Taylor stated that a one-person show-up is unnecessarily suggestive if the police single
out a suspect from the general population based on a victim’s description and present the
suspect in handcuffs to the victim for identification. Taylor, 594 N.W.2d at 162.” State v.
Anderson, 657 N.W.2d 846, 851 (Minn. App. 2002). Arguably, appellant was not singled
out from the general population because no one else was in the area at the time.3
3 Appellant argues that, because Minneapolis contains many people who match T.S.’s description of him and many bicycles that match the description of his bicycle, he could
6 But “[a]n unnecessarily suggestive identification procedure does not preclude
admission of the identification testimony unless there is a substantial likelihood of
irreparable misidentification.” Id. The second question is “whether the identification
created a very substantial likelihood of irreparable misidentification” and involves a
consideration of the “totality of the circumstances.” Taylor, 594 N.W.2d at 161
(quotations and citations omitted).
Five factors are relevant to whether an “irreparable misidentification” was likely
to have occurred: (1) the witness’s opportunity to see the suspect when the crime
occurred; (2) the witness’s degree of attention to the suspect; (3) the witness’s ability to
describe the suspect accurately; (4) the witness’s certainty about the identification when
confronted with the suspect; and (5) the amount of time between the crime and the
confrontation. State v. Adkins, 706 N.W.2d 59, 62-63 (Minn. App. 2005). T.S. saw
appellant clearly during the crime; T.S. paid attention to appellant’s age, his height, and
the type of bicycle he was riding; T.S. could describe both appellant and the bicycle
accurately; T.S. was certain about appellant’s identity as one of the robbers; and the
confrontation occurred only about 30 minutes after the robbery. No irreparable
misidentification of appellant is likely to have occurred.
Appellant relies on In re Welfare of M.E.M., 674 N.W.2d 208, 215 (Minn. App.
2004) (concluding that the admission of evidence on the defendant’s identification was
not clearly erroneous, although the defendant was “singled out” for presentation to the
have been misidentified, but he does not address the fact that no other persons or bicycles of any description were seen near the time and place of the robbery.
7 victim), to argue that he was unfairly singled out for identification. But M.E.M. is
distinguishable: in that case, the victim did not see the robbers’ faces during the crime,
saw them only when they fled, and could describe them only by what they were wearing,
a yellow jersey and a gray sweatshirt. Id. at 211. When the defendant was shown to her,
she could identify him by his jersey as one of the men she saw running from the scene,
but could not identify him in court. Id. at 212. Two witnesses, who had passed a man
wearing that jersey on the street shortly before the robbery, corroborated the victim’s
identification of the defendant as the wearer of the jersey. Id. at 215. Here, the victim
saw the robbers clearly during the crime and was able to identify appellant as one of
them; he was also able to identify appellant in court.
Even if appellant was unfairly singled out for identification, a consideration of the
five factors indicates that no misidentification would have occurred. There was no basis
to suppress the evidence of T.S.’s identification of appellant.
Affirmed.