State of Minnesota v. Otis Redmond Ware

• Court: Court of Appeals of Minnesota
• Decided: March 25, 2024
• Docket: a230578
• Status: Unpublished

Opinion

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA IN COURT OF APPEALS A23-0578

State of Minnesota, Respondent,

vs.

Otis Redmond Ware, Appellant.

Filed March 25, 2024 Affirmed Wheelock, Judge

Ramsey County District Court File No. 62-CR-21-65

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Alexandra Meyer, Assistant County Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rebecca Ireland, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Schmidt, Judge; and Reilly,

Judge. *

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. NONPRECEDENTIAL OPINION

WHEELOCK, Judge

Appellant challenges his conviction and sentence for possession of a firearm by a

prohibited person, arguing that (1) the officers did not have a reasonable, articulable

suspicion to stop him and unlawfully exceeded the scope of the stop and (2) the district

court abused its discretion by denying his motion for a downward dispositional departure

from the statutory-minimum sentence. We affirm.

FACTS

On January 4, 2021, around 3:00 p.m., the gang and gun unit of the St. Paul Police

Department conducted an operation at an intersection in St. Paul. Uniformed officers

cleared the intersection of civilians, then the officers promptly dispersed before civilians

returned to the area, all while plainclothes officers surveilled the intersection. Among the

people who returned after the uniformed officers cleared the area was appellant Otis

Redmond Ware.

An officer watched as Ware walked to the back of a parked tan sport utility vehicle

and reached for something under the vehicle, then went to a parked white sedan and did

the same. The officer then heard a gunshot and saw Ware jump up, put something in his

front pocket, and quickly walk away. The officer identified the gunshot as coming from

underneath the white sedan. He relayed the information to other officers over the radio,

and a second officer spotted a man matching Ware’s description less than a block away.

Over the radio, the second officer confirmed with the first that the man was the suspect,

then the second officer initiated a stop.

2 The second officer ordered Ware onto the ground with his arms outstretched in a

prone position, and Ware immediately complied. The second officer asked Ware if he had

a gun, and Ware responded that he did, so the second officer radioed for backup. Because

of the gang-and-gun-unit operation, numerous officers were in the area with radios turned

on, and approximately ten officers responded to the request for backup within minutes.

Officers handcuffed Ware and asked him if his gun accidentally went off, and Ware

confirmed that it did. An officer then reached into Ware’s pocket and retrieved a

.380-caliber handgun with a loaded magazine. Officers helped Ware to his feet and placed

him in a squad car. The entire encounter lasted ten minutes. Officers searched the scene

of the gunshot and retrieved a .380-caliber bullet casing from under the white sedan.

Respondent State of Minnesota charged Ware with unlawful possession of a firearm

under Minn. Stat. § 624.713, subd. 1(2) (2020). Ware moved to suppress the evidence

from the encounter, arguing that the second officer conducted an unlawful stop and that it

was also unlawful to expand the stop to search Ware. In September 2021, the district court

denied the motion to suppress and determined that both the initial stop and subsequent

arrest and search of Ware were lawful. Ware waived his right to a jury trial and proceeded

to a stipulated-evidence trial pursuant to Minn. R. Crim. P. 26.01, subd. 3. In September

2022, the district court found Ware guilty.

Ware moved for a downward dispositional departure from the statutory-minimum

sentence, arguing that he was particularly amenable to supervision and treatment in a

probationary setting, and alternatively, he moved for a stay of the sentence pending this

appeal. In January 2023, the district court sentenced Ware to 60 months in prison, the

3 statutory minimum, but stayed the sentence pending this appeal pursuant to Minn. R. Crim.

P. 28.02, subd. 7.

Ware appeals.

DECISION

Ware argues that the district court erred by denying (1) his motion to suppress

evidence as the fruit of an unlawful search and seizure and (2) his request for a downward

dispositional departure from the statutory-minimum sentence.

I. The district court did not err by denying Ware’s motion to suppress evidence because the officers lawfully stopped Ware and searched him incident to a lawful arrest.

Ware makes two arguments that the stop and the search were unlawful. First, he

argues that, because the first officer did not see Ware with a gun and provided only a vague

description of Ware, the second officer’s stop of him was unlawful under Terry v. Ohio as

the officer did not have objective and particular facts to form the required reasonable,

articulable suspicion for the stop. 392 U.S. 1, 21 (1968). Second, Ware argues that even

if the initial stop was lawful, it became unlawful when the second officer responded with

unreasonable force. To support this argument, Ware asserts that the initial suspicions that

provided the basis for the stop were tenuous, that he complied with every request the second

officer made, and that he was seized at gunpoint by ten officers.

The state responds that the second officer had a reasonable, articulable suspicion

based on the totality of the circumstances, including the inferences of the trained officers.

Furthermore, the state contends that officers may proceed with caution and a greater show

of force when a suspect is armed and that the number of officers was reasonable in this

4 circumstance because a large number of officers were in the vicinity due to the

gang-and-gun-unit operation.

The district court denied Ware’s motion to suppress because the first and second

officers had a reasonable, articulable suspicion that, when combined with their rational

inferences, provided a lawful basis for the stop. The district court determined that the

second officer’s initial stop of Ware was lawful because the second officer received

credible information from the first officer, who identified Ware as the source of the gunshot

and saw him immediately stand up after the shot was fired and place something in his

pocket. The district court balanced Ware’s Fourth Amendment rights with the nature of

the government’s intrusion, determining that the officers did not exceed the scope of the

Terry stop despite the use of force.

As part of its analysis of the scope and duration of the stop, the district court also

determined that the officers searched Ware incident to a lawful arrest. The court

specifically stated that after Ware admitted that his gun had fired accidentally, officers

searched him incident to a valid arrest and discovered the .380-caliber handgun during that

search. In his brief to this court, Ware did not distinguish between the stop, which occurred

first in time, and the subsequent search, during which the officers located the firearm on

his person. Because it is relevant to our analysis, we address the stop and the search

separately below.

When the facts are not in dispute, we review pretrial orders on a motion to suppress

evidence de novo to discern whether the police had an adequate basis for the search and

seizure. State v. Williams, 794 N.W.2d 867, 871 (Minn. 2011).

5 The United States and Minnesota Constitutions prohibit unreasonable searches and

seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. If a search or seizure is

unlawful, then any evidence obtained therefrom must be suppressed. State v. Bradley,

908 N.W.2d 366, 369 (Minn. App. 2018). “A Terry stop permits an officer who suspects

that an individual is engaged in illegal activity and also believes that a suspect may be

armed and dangerous to frisk the suspect in order to reduce concerns that the suspect poses

a danger to officer safety.” State v. Flowers, 734 N.W.2d 239, 250-51 (Minn. 2007). We

review the validity of a Terry stop by applying a two-step inquiry: first, we consider

“whether the stop was justified at its inception”; second, we consider whether the actions

of the police during the stop “were reasonably related in scope to the circumstances that

justified the stop.” State v. Balenger, 667 N.W.2d 133, 137 (Minn. App. 2003) (quotation

omitted), rev. denied (Minn. Oct. 21, 2003).

A. Initial Stop of Ware

To conduct a lawful Terry stop, officers must have a reasonable, articulable

suspicion of criminal activity. State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008).

This is not a high standard, but the suspicion must be based on specific, articulable facts

that, when combined with rational inferences, warrant the brief stop. State v. Pike,

551 N.W.2d 919, 921-22 (Minn. 1996). Officers may use their training to make rational

inferences and deductions. State v. Smith, 814 N.W.2d 346, 352 (Minn. 2012). An officer

who has a reasonable belief that the suspect is armed “is justified in proceeding cautiously

with weapons ready.” State v. Munson, 594 N.W.2d 128, 137 (Minn. 1999) (quotation

omitted). The reviewing court looks at the facts objectively and weighs the totality of the

6 circumstances to determine the reasonableness of the officer’s conduct. Balenger,

667 N.W.2d at 139. The officer initiating a stop or an arrest may rely on information from

other officers, and that knowledge is imputed to the officer initiating the stop or arrest.

State v. Conaway, 319 N.W.2d 35, 40 (Minn. 1982).

Here, the second officer had a reasonable, articulable suspicion to stop Ware. The

first officer observed Ware appear to retrieve items from underneath two different parked

cars at an intersection under surveillance because of known drug and gang activity in the

area. The first officer heard a single gunshot and identified the sound as coming from

where Ware reached underneath the white sedan. The first officer observed Ware

immediately place something in his pocket and hasten away from the vehicle. The first

officer informed other officers over the radio that he heard a gunshot and provided the

location and Ware’s description. Relying on this information, the second officer stopped

Ware moments later and only one block from the intersection, drew his weapon, and

ordered Ware onto the ground. The second officer asked Ware if he had a gun, and Ware

responded that he did, so the second officer radioed for backup.

The totality of the circumstances, including the officers’ training and inferences,

provided a reasonable, articulable suspicion for the second officer to stop Ware.

Furthermore, because the first officer’s observations provided a basis for a reasonable

belief that Ware was armed, it was not unlawful for the second officer to approach Ware

with his weapon drawn. Here, as in State v. O’Neill, a radio report informed an officer that

the suspect was armed, so “the officer[ was] justified for their own protection in holding

the [suspect] at gunpoint until they were frisked for weapons.” 216 N.W.2d 822, 828

7 (Minn. 1974). Given these particular facts, the totality of the circumstances provided the

second officer with reasonable, articulable suspicion to conduct a Terry stop with his

weapon drawn.

B. Search of Ware

Although a stop may be lawful at its inception, it may become unlawful if the the

duration of the stop or the actions of the officers are not reasonably related to the

circumstances that gave rise to the stop. Balenger, 667 N.W.2d at 139. There must be a

balance between the individual’s interest in the right to be free from unlawful searches and

seizures and the government’s interest in preventing crime and protecting officer safety.

Id. To determine whether the officer’s conduct exceeded the scope of the investigative

stop, courts consider the aggressiveness and intrusiveness of the tactics used against their

justifications. Id.

An officer may arrest a suspect without a warrant in a public place so long as the

officer has probable cause to believe that person committed a felony. Minn. Stat. § 629.30,

subd. 2(2) (2020); State v. Dickey, 827 N.W.2d 792, 798 (Minn. App. 2013). Recklessly

discharging a firearm in a municipality is a felony. Minn. Stat. § 609.66, subd. 1a(a)(3)

(2020). “Probable cause to arrest exists when a person of ordinary care and prudence,

viewing the totality of the circumstances objectively, would entertain an honest and strong

suspicion that a specific individual has committed a crime.” Williams, 794 N.W.2d at 871

(quotation omitted). This inquiry is objective, and a court must consider all of the facts in

an individual case. Id. If a person is lawfully arrested, then officers may conduct a search

8 of the person and the area within the person’s control incident to that arrest. Bradley,

908 N.W.2d at 369.

Here, the officers did not pat Ware down as part of a Terry stop but reached into his

pocket to remove the firearm pursuant to a lawful arrest. After the second officer stopped

Ware and Ware confirmed that he had a gun, the second officer radioed for backup, which

alerted every officer in the area. Because of the gang-and-gun-unit operation, there were

more officers in the vicinity than usual, and several officers responded to the second

officer’s call for backup. Given these facts, the large number of officers who responded

was not unreasonable and did not cause the stop to become unreasonable as Ware argues.

After backup arrived, officers asked Ware whether he had fired the gun and Ware

confirmed that he had, providing probable cause to arrest Ware for firing a gun within a

municipality in violation of Minn. Stat. § 609.66, subd. 1a(a)(3). See State v. Engle,

743 N.W.2d 592, 596 (Minn. 2008) (holding that a person need not intend the discharge of

a firearm to commit reckless discharge of a firearm within a municipality). The officers

retrieved the firearm from Ware’s pocket only after they had probable cause to arrest him.

Because the officers searched Ware only after confirming that he discharged a firearm in

St. Paul, this search was incident to a lawful arrest. We therefore conclude that, because

the officers had a reasonable, articulable suspicion to stop Ware initially and within

moments developed probable cause to arrest him and to search him incident to that arrest,

the district court did not err when it denied Ware’s motion to suppress evidence.

9 II. The district court did not abuse its discretion when it denied Ware’s motion for a downward dispositional departure from the statutory-minimum sentence.

Ware asserts that the district court should have exercised its discretion to grant his

motion for a downward dispositional departure from the statutory-minimum sentence

imposed under Minn. Stat. § 609.11, subd. 5(b) (2020), because he presented substantial

and compelling circumstances that permit a departure pursuant to the Minnesota

Sentencing Guidelines and State v. Soto, 855 N.W.2d 303, 310 (Minn. 2014). The state

responds that the district court needed only to consider Ware’s information but was not

obligated to use its discretion to grant the motion. Although the district court considered

statements from Ware and his attorney and a letter from the behavioral-health program

Ware attended, it denied the motion, sentencing Ware to the statutory-minimum 60-month

prison sentence.

The Minnesota Sentencing Guidelines require a district court to impose a sentence

within the presumptive range “unless there exist identifiable, substantial, and compelling

circumstances to support a departure.” Minn. Sent’g Guidelines 2.D.1 (2020). “Because

the guidelines’ goal is to create uniformity in sentencing, departures are justified only in

exceptional cases.” State v. Solberg, 882 N.W.2d 618, 625 (Minn. 2016). We review the

district court’s decision on a departure request for an abuse of discretion; without clear

evidence of abuse, we will not overturn the district court’s decision. See State v. Givens,

544 N.W.2d 774, 776 (Minn. 1996) (“This court is loath[] to overturn the exercise of that

discretion without clear evidence of its abuse.”). “Only the rare case will merit reversal

based on the district court’s refusal to depart.” State v. Johnson, 831 N.W.2d 917, 925

10 (Minn. App. 2013) (quotation omitted), rev. denied (Minn. Sept. 17, 2013). So long as the

district court considered all the testimony and information presented, the court of appeals

will affirm the district court’s decision, and the district court does not need to explain its

reasons for imposing the presumptive sentence. State v. Van Ruler, 378 N.W.2d 77, 80-81

(Minn. App. 1985).

The Minnesota Sentencing Guidelines permit the district court to consider whether

a person is “particularly amenable to probation” when deciding the sentence to impose.

Minn. Sent’g Guidelines 2.D.3.a(7) (2020). Particular amenability to probation can be

demonstrated by such factors as the defendant’s age, prior record, remorse, cooperation,

attitude while in court, and the support of friends and family. State v. Trog, 323 N.W.2d

28, 31 (Minn. 1982). The district court may also consider anything else that may be

relevant. Soto, 855 N.W.2d at 310.

Here, the district court considered the testimony and information Ware and his

attorney provided, and the district court acted within its broad discretion when it decided

not to grant Ware’s dispositional-departure motion.

Affirmed.