This opinion will be unpublished and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
A15-0337
State of Minnesota,
Respondent,
vs.
Andrew John Wondrasek,
Appellant.
Filed April 25, 2016
Affirmed
Halbrooks, Judge
Ramsey County District Court
File No. 62-CR-14-1457
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, St. Paul,
Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Bjorkman, Judge; and
Kalitowski, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
HALBROOKS, Judge
Appellant challenges the district court’s denial of his motion to suppress evidence
and to dismiss. Because we conclude that the police had reasonable, articulable suspicion
of criminal activity to justify an investigatory stop of appellant, we affirm.
FACTS
On February 28, 2014, an anonymous person called 911 and reported that a man
was playing with a gun with a child in the front yard. Police dispatch sent Officer Joseph
Allen to respond. While he was en route, dispatch informed Officer Allen and another
responding officer that the anonymous person had called again to report that the man had
placed the gun in the back of a white Chevy Tahoe parked in the driveway. Officer Allen
arrived at the address and stopped his squad car on the street, partially blocking the
driveway where a white Chevy Tahoe was parked.
Officer Allen saw a man, later identified as appellant Andrew Wondrasek, and a
little boy in the front yard, standing about two feet from an open rear passenger door of
the Chevy Tahoe. Officer Allen immediately ordered Wondrasek in a commanding and
authoritative voice to step away from the vehicle and to show his hands. Wondrasek
complied. Officer Allen then approached the Chevy Tahoe and saw what looked like the
handle of a black gun in the back seat. In response to a question, Wondrasek told Officer
Allen that it was a BB gun. Officer Allen’s partner put herself between Wondrasek and
the Chevy Tahoe. Once she did this, Officer Allen secured the weapon.
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Officer Allen testified that he recognized Wondrasek from “past dealings”1 and
was aware that he is a convicted felon. After the firearm was secured, Officer Allen
confirmed Wondrasek’s identity and discussed with him whether he was allowed to
possess a firearm. Wondrasek stated that he knew that he was not supposed to possess
anything that shoots a projectile because he is a convicted felon. The two officers then
placed him under arrest.
The state charged Wondrasek with one count of being an ineligible person in
possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(2) (2014).
Wondrasek moved to suppress the evidence of the firearm and to dismiss based on a lack
of reasonable, articulable suspicion that criminal activity was afoot prior to the
investigatory stop. The district court denied the motion and concluded that the stop was
justified because Officer Allen recognized Wondrasek as a convicted felon and therefore
had reasonable, articulable suspicion that he is an ineligible person in possession of a
firearm. Both parties agreed that the district court’s ruling on the motion to suppress was
dispositive. Wondrasek waived his right to a jury trial and agreed to a stipulated-
evidence trial according to Minn. R. Crim. P. 26.01, subd. 4. The district court found that
Wondrasek is ineligible to possess a firearm and that he did possess it. As a result,
Wondrasek was convicted.
At the sentencing hearing, the district court stayed the presumptive 60-month
prison sentence, imposed a $50 fine, ordered Wondrasek to serve 365 days in the
1
The dealings include a call pertaining to a medical emergency of the former owner of
the home and a call to help Wondrasek corral some dogs that had escaped from the
property.
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workhouse, and required that he complete a chemical-dependency evaluation. The
district court scheduled a follow-up hearing for 120 days after Wondrasek began to serve
his time at the workhouse. At the subsequent hearing, the district court ordered
Wondrasek’s release from the workhouse. This appeal follows.
DECISION
Wondrasek argues that the police lacked reasonable, articulable suspicion that
criminal activity was afoot prior to performing an investigatory stop. “We review de
novo a district court’s determination of reasonable suspicion of illegal activity. But in
that review, we accept the district court’s factual findings unless they are clearly
erroneous.” State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012).
Both the United States and Minnesota Constitutions protect against unreasonable
searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Evidence
resulting from an unreasonable seizure must be suppressed. Smith, 814 N.W.2d at 350.
Searches and seizures conducted without a warrant are per se unreasonable—subject only
to a few specifically established and well delineated exceptions or circumstances.
Thompson v. Louisiana, 469 U.S. 17, 19-20, 105 S. Ct. 409, 410 (1984).
“[A]n officer may, consistent with the Fourth Amendment, conduct a brief
investigatory stop” without a warrant “when the officer has a reasonable, articulable
suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120
S. Ct. 673, 675 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968)).
The justification for the investigatory stop must precede the stop itself. O’Neill v.
Comm’r of Pub. Safety, 361 N.W.2d 471, 473 (Minn. App. 1985).
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An officer seizes a citizen when the officer restrains the citizen’s liberty by using
physical force or a show of authority. State v. Cripps, 533 N.W.2d 388, 391 (Minn.
1995). “[A] person has been seized if in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he or she was neither free to
disregard the police questions nor free to terminate the encounter.” Id. The supreme
court has held that a seizure takes place when police direct an individual to stop what
they are doing. In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993).
The parties agree that the investigatory stop occurred no later than when Officer
Allen ordered Wondrasek to move away from the Chevy Tahoe and to put his hands
where the officers could see them. The issue is whether Officer Allen had a reasonable,
articulable suspicion that criminal activity was afoot to justify the investigatory stop.
“Reasonable suspicion must be based on specific, articulable facts that allow the officer
to be able to articulate at the omnibus hearing that he or she had a particularized and
objective basis for suspecting the seized person of criminal activity.” State v. Diede, 795
N.W.2d 836, 842-43 (Minn. 2011) (quotation omitted). While not as demanding as the
probable-cause or preponderance-of-the-evidence standards, “the Fourth Amendment
requires at least a minimal level of objective justification for making the stop.” Wardlow,
528 U.S. at 123, 120 S. Ct. at 675-76. The police may seize a person if the facts
objectively “support at least one inference of the possibility of criminal activity.” State v.
Klamar, 823 N.W.2d 687, 693 (Minn. App. 2012) (quotation omitted).
The district court denied Wondrasek’s motion to suppress the evidence of the gun
and dismiss based on its determination that Wondrasek was seized when the officers
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blocked his reasonable access to the street by partially blocking the driveway and that
Officer Allen had reasonable, articulable suspicion that criminal activity was afoot
because he recognized Wondrasek and believed that he is a person ineligible to possess a
firearm. On appeal, the state does not rely on the district court’s basis for denying the
motion to suppress. Instead, it argues that the investigatory stop was justified because
Officer Allen had reasonable, articulable suspicion that criminal activity was afoot based
on any of three other crimes: (1) recklessly handling a firearm (Minn. Stat. § 609.66,
subd. 1(a)(1) (2014)); (2) illegal possession of a firearm by a minor (Minn. Stat.
§ 624.713, subd. 1(1) (2014)); or (3) disorderly conduct (Minn. Stat. § 609.72, subd. 1(3)
(2014)).
The state’s theory based on the three other crimes was not briefed or argued to the
district court. Typically, we do not consider matters not argued to and considered by the
district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But we “may permit a
party, without filing a cross-petition, to defend a decision or judgment on any ground that
the law and record permit that would not expand the relief that has been granted to the
party.” Minn. R. Crim. P. 29.04, subd. 6. Addressing rule 29.04, subdivision 6, the
supreme court has held that “[a] respondent can raise alternative arguments on appeal in
defense of the underlying decision when there are sufficient facts in the record for the
appellate court to consider the alternative theories, there is legal support for the
arguments, and the alternative grounds would not expand the relief previously granted.”
State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003).
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Wondrasek contends that this principle from Grunig does not permit the state to
argue for the first time on appeal that other possible crimes justified an investigatory stop.
Relying on Cripps, he contends that the officer must provide the justification for the stop
at the omnibus hearing.
In Cripps, two police officers were enforcing the minimum-age requirement for
the consumption of alcohol by asking patrons in some Mankato bars to produce
identification. 533 N.W.2d at 389. Cripps showed the officers her sister’s driver’s
license. Id. at 390. The officers did not think that Cripps looked like the photo on the
license, and Cripps eventually admitted that she was only 20 and using her sister’s
identification without her permission. Id. Cripps was charged with three counts,
including underage drinking. Id. Cripps moved to suppress the evidence obtained after
she was asked to produce identification. Id. At the omnibus hearing, one of the arresting
officers testified that she did not have criteria to identify the patrons who were asked to
produce identification, “It was basically just the first person I came up to in the bar.” Id.
at 392. The officer did not provide any individualized suspicion with respect to Cripps.
Id. The district court denied the motion to suppress and this court affirmed without
reaching the issue of individualized suspicion. Id. at 390. The supreme court reversed,
holding that “no evidence exist[ed] in the record with respect to [the officer’s]
conclusions regarding Cripps’ individual appearance.” Id. at 392.
Here, Officer Allen testified at the omnibus hearing that dispatch informed him
and his partner that an anonymous person called and stated that “an adult was playing
with a gun with a juvenile” in the front yard of the home. Dispatch updated the officers
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while they were en route that the caller contacted the police again to say that the adult
had placed the gun in the back of a white Chevy Tahoe. Officer Allen further testified
that upon arrival, he saw an adult male and a boy standing two feet from a white Chevy
Tahoe, which was consistent with the caller’s information.
Under Minn. Stat. § 609.66, subd. 1(a)(1), a person is guilty of a crime if he
“recklessly handles or uses a gun or other dangerous weapon or explosive so as to
endanger the safety of another.” “[O]ne acts recklessly by creating a substantial and
unjustifiable risk that one is aware of and disregards.” State v. Engle, 743 N.W.2d 592,
595 (Minn. 2008). The use of the word “playing” implies that the adult was behaving
carelessly or indifferently with the firearm. See The American Heritage Dictionary of the
English Language 1351 (5th ed. 2011) (defining “playing” as dealing or behaving
“carelessly or indifferently”). Behaving in such a manner could create a substantial and
unjustifiable risk to the safety of another.
In contrast to Cripps, the factual record in this case contains sufficient evidence of
Officer Allen’s individualized suspicion of criminal activity at the time that he arrived at
Wondrasek’s home. Because Officer Allen had an objectively reasonable, articulable
suspicion that criminal activity was afoot before making the investigatory stop, the
district court did not err by denying the motion to suppress evidence of the gun and to
dismiss.
Affirmed.
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