Appellate Brief: Hurie Tyrone Boclair v. State of Minnesota

No.
A23-0626
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Respondent,
vs.
Hurie Tyrone Boclair
Appellant.
________________________________________________
BRIEF OF APPELLANT HURIE TYRONE BOCLAIR

________________________________________________
Minnesota Attorney General’s Office SARAH R. GAD, ATTY REG NO. 0403228
Keith Ellison GAD & GAD LAW OFFFICES
445 Minnesota Street, Suite 1400 916 Emerson Ave, Suite D
Saint Paul, MN 55101-2131 Minneapolis, Minnesota 55441
Telephone: (651) 296-3353 612-512-1870
Counsel for Respondent Counsel for Defendant, Appellant
TABLE OF CONTENTS
TABLE OF CONTENTS.…………………………………………………………………………i
TABLE OF AUTHORITIES……………………………...…………………………………....…ii
STATEMENT OF THE ISSUES ………………………………………………………….……..1
STATEMENT OF THE CASE ……………………………………………………...……………2
STATEMENT OF FACTS ………………………………………………………………….........4
STANDARD OF REVIEW ……………………………………………………………………..13
ARGUMENT ……………………………………………………………………………………14
I. THE DISTRICT COURT ERRED IN DENYING MR. BOCLAIR’S MOTION TO

SUPPRESS THE FIREARM SEIZED FROM HIS JACKET BECAUSE THE OFFICERS
LACKED REASONABLE SUSPICION TO STOP AND FRISK HIM…………………14
II. MR. BOCLAIR’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE
OR CHALLENGE NUMEROUS ERRORS IN THE PROSEUCTION’S CASE THAT
WERE DISPOSITIVE TO THE DISTRICT COURT’S DENIAL OF MR. BOCLAIR’S
MOTION TO SUPPRESS……………………………………………………………….32
CONCLUSION ……………………………………………………………………………….…41
CERTIFICATES OF COMPLIANCE ………………………………………………………......42
ADDENDUM………………………………………………………………………………..…..43
i
TABLE OF AUTHORITIES
CASES
Adams v. Williams, 407 U.S. 143, 146 (1972) …………………………………………...15, 19-21
Beck v. Ohio, 379 U. S. 89, 96- 97 (1964) ……………………….………………………...……30
Brinegar v. United States, 338 U. S. at 160, 175 (1949) ………………………………………..16
Brady v. Maryland, 373 U.S. 83 (1963) ………………………………………………………...33
Camara v. Municipal Court, 387 U.S. 523 (1967) ………………......…………………….........31
Carroll v. United States, 267 U.S. 132 (1925) ………………...……………………….…..........16
Elkins v. United States, 364 U. S. 206, 222 (1960) ………………………………………….26, 30
Florida v. Royer, 460 U.S. 491 (1983 )……………………………………………...…29, 31, 27
Illinois v. Wardlow, 528 U.S. 119 (2000) )……………..………………………………………..28
Katz v. United States, 389 U.S. 347, 357 (1967) ………………………………………...……...14
McMann v. Richardson, 397 U.S. 759, 768–71 (1970) …………………..……………………..33
Michigan v. Long, 463 U.S. 1032 (1983)……………………………………………………18, 38
Michigan v. Summers, 452 U.S. 692 (1981)………………………………………………..……31
Minnesota v. Dickerson, 508 U.S. 377 (1993) …………………………………………...……...14
Preston v. United States, 376 U. S at 364, 367 (1964)…..………………………………………16
Rios v. United States, 364 U. S. 253 (1960)…………………………………......…………..15, 16
Sibron v. New York, 392 U.S. 40, 42 (1968)………………..……………………………………16
Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) ………………………….……30
State v. Alesso, 328 N.W.2d 685, 688 (Minn. 1982)……………………...………………….25-26
State v. Baumann, 759 N.W.2d 237, 240 (Minn. App. 2009)…………..……………………28, 29
State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000) …………….….………..…………….……..14
State v. Cavegn, 294 N.W.2d 717, 722 (Minn. 2980) ………………………………………..….15
ii
State v. Dickerson, 481 N.W.2d 840 (1992)…………………………………………..…………16
State v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017)…………………………………14
State v. Flowers, 734 N.W.2d 239, 247-48 (Minn. 2007)……………………………………….27
State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008) ……………..……….……………….…..14
State v. Gray, 456 N.W.2d 251, 256 (1990) ………...…………………………..…………..14, 26
State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999)……………………………………………….14
State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) ………………………….……….…….14, 29
State v. Jordan, 742 N.W.2d 149, 152 (Minn. 2007)……………..……………………………..13
State v. Lothenbach, 296 N.W.2d 854 (Minn.1980)……………………….……….………..13, 30
State v. Richmond, 602 N.W.2d 647, 651 (Minn. App. 1999)…………………………………..26
State v. Smith, 814 N.W.2d 346, 351– 52 (Minn. 2012). ………………………...………….15, 31
State v. Sterling, 782 N.W.2d 579, 581 (Minn. App. 2010)………………………………..……13
State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998)…………………..………………25-26, 38
Strickland v. Washington, 466 U.S. 668 (1984). ……………………………………...…….32, 35
Terry v. Ohio, 392 U.S. 1 (1968) …...…………………………...……9, 15, 16, 17, 18, 26, 27, 30
Tollett v. Henderson, 411 U.S. 258, 266–69 (1973) ………..………………………………...…33
United States v. Agurs, 427 U.S. 97, 102 (1976)…...………………………………………...…33
Warden v. Hayden, 387 U. S. 294, 310 (1967) ………………………………………..…….19, 30
Weeks v. United States, 232 U. S. 383, 391-393 (1914) ………………………………………...30
Wong Sun v. United States, 371 U.S. 471 (1963) )……………………………………………....16
iii
CONSTITUTIONAL PROVISIONS
MINN. CONST. Art. I, § 6. ……………………………………………………………………..32
MINN. CONST. Art. I, § 10. …………………………………………………………………....14
U.S.CONST. amend. IV……………..…………………………………………………………..14
U.S.CONST. amend. VI……………..…………………………………………………………..32
RULES
MINN. R. Crim. P. 26.01, Subd. 4………………………………………………………………13
iv
STATEMENT OF THE ISSUE PRESENTED FOR REVIEW
I. WHETHER THE DISTRICT COURT ERRED BY DENYING MR. BOCLAIR’S

MOTION TO SUPPRESS EVIDENCE SEIZED DURING A TERRY FRISK
THAT WAS NOT JUSTIFIED BY A REASONABLE SUSPICION THAT MR.
BOCLAIR WAS ARMED AND DANGEORUS.
On May 27, 2022, Appellant Hurie Boclair (“Mr. Boclair”) was charged with Possession
of Ammunition/AnyFirearm - Conviction or Adjudicated Delinquent for Crime of Violence, in
violation of Minn. Stat. § 624.713.1(2). The charges arose from a single-person car accident on
December 16, 2021, in which Mr. Boclair was the driver. Mr. Boclair was not subject to an
investigatory stop when a firearm was seized from his jacket; he was being evaluated by medics,
when a police officer ordered him to put his hands up and submit to a search. Mr. Boclair filed a
motion to suppress, arguing that the search ran afoul of his Federal and State constitutional rights
because it was not justified by an articulable suspicion that he was armed and presently dangerous
or engaged in criminal activity.
On February 16, 2023, the District Court issued an Order Denying Defendant’s Motion to
Suppress, finding that the officer’s actions were appropriate under Terry v. Ohio based on the
following logic: single-person car accidents often involve intoxicated drivers, and driving while
intoxicated is a crime, which therefore meant that the officer had a reasonable suspicion that Mr.
Boclair was engaged in criminal activity; and Mr. Boclair had a pocketknife hanging from the
waistband of his pants, which also meant that he was armed and presently dangerous to the safety
of the officers and medics evaluating him. Notwithstanding that Mr. Boclair did not make any
furtive gestures towards his pants, the object seen hanging from Mr. Boclair’s pants was his belt,
not a pocketknife.
Most apposite authority: Terry v. Ohio, 392 U.S. 1 (1968).
1
II. WHETHER MR. BOCLAIR’S TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO CHALLENGE GLARING MISREPRESENTATIONS OF
MATEIRAL FACTS IN THE PROSEUCTION’S CASE THAT WERE
DISPOSITIVE TO THE DISTRICT COURT’S DENIAL OF MR. BOCLAIR’S
MOTION TO SUPPRESS.
Joseph Vaccaro (“Mr. Vaccaro”) was privately retained by Mr. Boclair on to defend him
in these proceedings, which occurred in the Hennepin County District Court before Judge Lisa
Janzen. Mr. Boclair was charged being a Possession of a Firearm - Conviction or Adjudicated
Delinquent, pursuant to Minn. Stat. § 624.713.1(2). Mr. Vaccaro negotiated an agreement wherein
the trial court’s ruling on the suppression issue would be dispositive to these proceedings pursuant
to Minn. R. Crim. P. 26.01, Subd. 4 and State v. Lothenbach, 296 N.W.2d at 854 (1980). Mr.
Vaccaro did not file a written brief in support of Mr. Boclair’s motion to suppress to establish a
factual basis to support the motion to suppress, or a reply brief to the State’s memorandum
opposing Mr. Boclair’s motion to dismiss. The district court denied Mr. Boclair’s motion to
suppress on February 16, 2023. Mr. Boclair was adjudicated guilty and sentenced to the mandatory
minimum of 60 months in the Minnesota Department of Corrections.
Most apposite authority: Strickland v. Washington, 466 U.S. 668 (1984).
STATEMENT OF THE CASE
This is a criminal case that originated in the Hennepin County District Court, Fourth
Judicial District, with Judge Lisa Janzen (“Judge Janzen”) presiding. On May 27, 2022, Appellant
Hurie Tyrone Boclair (“Mr. Boclair”) was charged with Possession of Ammunition/Any Firearm -
Conviction or Adjudicated Delinquent for Crime of Violence, in violation of Minn. Stat. §
624.713.1(2). The dispositive issue in this case was the constitutional propriety of the Terry frisk
that led to the discovery of the firearm in the right pocket of Mr. Boclair’s jacket on the morning
of December 16, 2021. Mr. Boclair moved to suppress the fruits of the Terry frisk on grounds that
2
it was not justified by a reasonable suspicion that he was engaged in criminal activity or armed
and presently dangerous to the safety of the officers or medics evaluating him. Terry v. Ohio, 392
U.S. 1, 26-28.
The district court denied the motion to suppress, finding that the single-person accident
Mr. Boclair was involved in that morning invoked a reasonable suspicion that he was possibly on
drugs when he crashed his car, and therefore was engaged in criminal activity. The district court
separately found that Mr. Boclair was armed and presently dangerous to the safety of the officers
because: (1) he had a pocketknife hanging from his waistband; and (2) was standing with his hands
in his jacket pockets. From these findings, the district court drew the conclusion that Mr. Boclair
was armed, dangerous, and engaged in criminal activity.
The stipulated evidence in this case directly refutes Judge Janzen’s findings of fact,
demonstrating that the so-called pocketknife that rendered him armed and dangerous was Mr.
Boclair’s belt; Mr. Boclair’s demeanor was objectively lucid as opposed inebriated; and the reason
his hands were in his pockets was because he was standing outside in mid-December, shivering,
without gloves on. Somehow, all of this was overlooked by Mr. Vaccaro. Even though Mr. Vaccaro
negotiated an agreement in which the trial court’s ruling on the suppression issue would be
dispositive, Mr. Vaccaro failed to file a written brief establishing an adequate factual basis for why
the district court should rule in his client’s favor with respective to this dispositive pretrial issue.
The State misrepresented several material facts that were left unchallenged by Mr. Vaccaro. The
combination of Mr. Vaccaro’s omissions and the State’s unrefuted misrepresentations led to the
district court’s denial of the motion to suppress.
Following the dispositive pretrial ruling on the suppression motion, Mr. Boclair agreed to
stipulate to the prosecution’s evidence pursuant to preserve appellate review of the district court’s
3
pretrial ruling on the suppression motion. Dkt # 61. Mr. Boclair filed a timely notice of appeal on
May 1, 2023, with proof of service to all parties; and the transcript delivery certificates were filed
with the clerk of the appellate court on June 19, 2023.
Mr. Boclair, by and through his appellate counsel Sarah Gad, files this brief in support of
his position that: (1) the firearm seized from Mr. Boclair’s jacket was the product of an
unreasonable search and seizure because it was not predicated on a reasonable, articulable
suspicion that Mr. Boclair was armed, dangerous, and engaged in criminal activity; and (2) Mr.
Boclair’s defense counsel was ineffective for failing to properly investigate the case and challenge
inaccurate findings that were deeply prejudicial to his client’s case. For the foregoing reasons, Mr.
Boclair respectfully request that the district court’s Order Denying Defendant’s Motion to
Suppress (Dkt. #65) be reversed and seeks that this matter be remanded to the district court for an
Order dismissing the charge.
STATEMENT OF THE FACTS
The following facts are taken from the following items of stipulated evidence: Minneapolis
Police Report, General Offense #2021-287294, State Exhibit (“SE”) 001; Transcript of Officer
Moore’s BWC, SE 002; Officer Davids’ BWC video footage, SE 005; Officer Oppegard’s BWC
video footage, SE 006; Officer Moore’s BWC video footage, SE 007. 1
On or around the morning of December 16, 2021,2 at approximately 6:26 AM, squad
partners Officers Ezra Moore (“Officer Moore”) and Nicholas Davids (“Officer Davids”) of the
Minneapolis Police Department (“MPD”) were dispatched to the intersection of East 24th Street
1
The State’s full exhibit list is accessible on the Registrar of Actions, Document Index (Dkt.) #75.
2
The District Court’s Order Denying Motion to Suppress (“Order”) incorrectly cites December 16, 2022, as the date
of the accident. See Dkt 60. The correct date is December 16, 2021.
4
and Nicollet Avenue South3 in response to a 9-11 call regarding a personal injury car accident.
SE 001. The caller reported that a dark green sedan had crashed into a metal post on the corner of
Nicollet Avenue South and that the driver, a black male, appeared to be unconscious or asleep.
Id. The driver of the green sedan was identified as Hurie Tyrone Boclair (“Mr. Boclair”)
(DOB: 01/13/1982). Id.
Officers Moore and Davids pulled up to the scene of the crash in an unmarked squad car
at approximately 6:30 AM. SE 005 at 06:30:08 AM. Upon information and belief, the temperature
outside was approximately 12°F/-10°C.4 Mr. Boclair was dressed in blue jeans, a grey-hooded
sweatshirt, an oversized Minnesota Twins windbreaker, and a black winter hat. Mr. Boclair was
not wearing gloves. Id. At 06:30:25 AM. Mr. Boclair was standing with his hands inside of his
jacket pockets when police arrived. Id. The two Caucasian male medics who were evaluating Mr.
Boclair when police were also standing with their hands in their own pockets. Id.
When the two officers arrived on foot, medics immediately began briefing them on the
details of the accident—namely, that a 9-11 caller reported that Mr. Boclair had fallen asleep at
the wheel and crashed into a light pole, but that Mr. Boclair was uninjured and medically cleared
to leave. SE 001 at 12. As the medics were debriefing the two officers on the details of the crash,
a third fire medic is seen in the background reversing Mr. Boclair’s vehicle from the curb and
parking it on the street for him to drive home. SE 005 at 06:30:18 AM.
While waiting for Mr. Boclair to regain access to his car, Officer Moore began making
small talk by asking Mr. Boclair, “Hey, what happened man?!” Id. at 06:30:29 AM. Upon being
3
The District Court’s Order incorrectly lists the location of the accident as 24th Street North and Nicollet Avenue
South. See Dkt 60. Upon information and belief, there is no such intersection in the city of Minneapolis. The correct
location is East 24th Street and Nicollet Avenue South.
4
See Minneapolis, MN Weather Report – 6:30 AM, December 16, 2021. Weather Underground. Available at:
<https://www.wunderground.com/history/daily/us/mn/minneapolis/ date/2021-12-16>, (Last Accessed: August 1,
2023)
5
asked this question, Mr. Boclair shrugged his shoulders and said, “I dunno [sic] I mean haven’t
been on no drugs or nothing.”5 Id. At 06:30:33 AM. As Mr. Boclair was speaking, Officer Davids
suddenly interrupted and told him to empty out his pockets. Id. at 06:30:35 AM.
Throughout the encounter, from the moment the two officers arrived on foot until he was
shoved face-down to the pavement with force, Mr. Boclair’s disposition was objectively calm and
collected. SE 007 at 06:30:18 AM – 06:30:44 AM. He was being evaluated by medics when the
officers approached, and Mr. Boclair and the medics were casually bantering and laughing. Id. at
06:30:18 AM. Mr. Boclair’s demeanor or body language did not change after the two officers
arrived on foot. Id. From that point forward, Mr. Boclair stood quietly with his hands in his pockets
and his gaze averted to the ground. Id. at 06:30:18 AM – 06:30:34 AM. After being asked
happened by Officer Moore, but before Mr. Boclair could finish his response, Officer Davids
suddenly approached Mr. Boclair by ordering Mr. Boclair to put his hand above his head. SE 005
at 06:30:34 AM. Mr. Boclair immediately did as he was told. Id. at 06:30:35 AM.
Without saying anything further, Officer Davids started patting down the left front pocket
of Mr. Boclair’s windbreaker6. Id. at 06:30:38 AM. When Officer Moore saw his squad partner
frisking the left side of Mr. Boclair’s clothing, he started frisking the right side.
In his written report, Officer Davids falsely states that he prefaced the Terry frisk with a
verbal warning to Mr. Boclair that he intended to search him for weapons—
DAVIDS: I told A1 to remove his hands and that I was going to

pat him for weapons for his safety and my safety and ours. A1
said "I haven't done drugs or nothing.” SE 001 at 12.
5
Officer Davids did not investigate Mr. Boclair for driving while intoxicated (“DWI”) by, say, requiring him to submit
to a breathalyzer, a field sobriety test, or any other objective chemical use assessment to confirm his statistically
inspired suspicion that Mr. Boclair was intoxicated when he crashed his car moments earlier.
6
Officer Davids misrepresented in his report that he prefaced the frisk with a disclaimer that he intended to search
Mr. Boclair for weapons for his safety, when Officer Davids made no such statement.
6
Officer Davids never gave any verbal indication he ever suspected that Mr. Boclair was
armed or dangerous in the first place. To this end, Mr. Boclair’s remark, “I haven’t done no drugs
or nothing” was not a defensive response to a fabricated verbal warning from Officer Davids that
he intended to search Mr. Boclair for weapons. Rather, it was in direct response to Office Moore’s
question asking how the accident had happened. Id. at 06:30:29 AM.
While patting down Mr. Boclair’s right front jacket pocket, Officer Moore happened upon
a dense metal object in his right jacket pocket. Id. at 06:30:41 AM. Officer Moore asked Mr.
Boclair if the object was a gun. Mr. Boclair calmly replied “Yes, sir.” Id. at 06:30:42 AM. After
Mr. Boclair confirmed to Officer Moore that the object was a firearm, Officer Davids started
shouting obscenities and the squad partners conducted a “forward takedown” of Mr. Boclair with
excessive force to retrieve the firearm. Id. at 06:30:42 AM - 06:30:50 AM; SE 001 at 13.
The full the discussion between Mr. Boclair, medics, and officer is as follows:
Medic [06:30:22] He says he’s not injured. He’s the driver here. He said
*muffled* not injured. I knocked on the side door *muffled* right here on
the curb . . .
O. Moore [06:30:29] What happened man?!
Mr. Boclair [06:30:33] I *muffled* [sic] I mean I haven’t been on no drugs or nothing
*muffled*…
O. Davids [00:06:34] Empty out your pockets. Hands up real quick.
** frisk commences**
O. Moore [06:30:41] What’s this? Is that a gun?
Mr. Boclair [06:30:42] Yes, sir.
O. Davids [06:30:44] Motherfucker! Get on the ground now! Don’t you fucking
move!
7
Mr. Boclair [06:30:47] Alright.
O. Davids [00:06:47] Get your hands! Back!
Mr. Boclair [06:30:50] I’m not moving.
**
SE 005 at 06:30:18 AM - 06:30:50; SE 007 at 06:30:18 AM - 06:30:50AM; SE 002.
While Officers Davids and Moore were in the process of handcuffing Mr. Boclair, who
was lying face-down on the pavement, they were joined by two additional MPD Officers—squad
partners Daniel Oppegard (“Officer Oppegard”) and Mitch Erickson (“Officer Erickson”). SE 006
at 06:30:50 AM. Officers Oppegard’s and Erickson’s presence at the scene preceded Officers
Davids’ and Moore’s arrival by approximately 20 seconds, but they remained in their squad car to
run the license plate of Mr. Boclair’s crashed vehicle. Id. at 06:30:11 AM - 06:30:50 AM. Once
they saw their colleagues initiating an arrest, Officer Oppegard can be heard saying to his squad
partner, Officer Erickson, “Wait, why are they doing that?” to which Erickson responded, “I don’t
know.” Id. at 06:30:41 AM.
Mr. Boclair was wearing a baggy windbreaker, which covered the waistline of his pants.
When Mr. Boclair shrugged his shoulders, his belt appeared in the BWC footage. SE 005 at
06:30:33 AM. Mr. Boclair did also, however, have a black switchblade pocketknife affixed inside
of the right pocket of his jeans, which was discovered approximately 68 seconds into the search
incident to arrest. SE 006 at 06:31:38 AM This is notable because Officer Davids testified, and
ultimately, Judge Janzen relied on his testimony, that the pocketknife is what prompted the
search. Dkt. 60 (“Officer Davids testified that he saw a knife in Mr. Boclair’s right pants
pocket prior to patting him down. The BWC corroborates this testimony, showing that as Mr.
Boclair shrugged his shoulders, an object can be seen hanging from the waistband. . .”). This is
false.
8
As previously noted, the object that was seen hanging from Mr. Boclair’s waistband when
she shrugged was his belt. SE 005 at 06:30:33 AM. The pocket was not discovered, seized, or even
mentioned until almost one minute into the search incident to arrest. SE 006 at 06:31:38 AM. It is
important to also note that the pocketknife was not discovered by either Officer Davids or Moore;
rather, it was discovered by Erickson. Id. who did not arrive until after Mr. Boclair was handcuffed
on the pavement in the prone position. Id. This distinction is important because the pocketknife
was discovered during the search-incident to arrest—not as a precursor justification for the original
Terry frisk. Rather, the Terry frisk led to the discovery of the firearm, which led to the search
incident to arrest, which then led to the discovery of the pocketknife. Id.
Procedural History
On May 27, 2022, Mr. Boclair was charged by complaint with Possession of
Ammunition/AnyFirearm - Conviction or Adjudicated Delinquent for Crime of Violence, in
violation of Minn. Stat. § 624.713.1(2). Dkt # 1. Mr. Boclair moved to suppress the fruits of the
Terry frisk on grounds that the original search was not preempted by a reasonable suspicion that
he armed and dangerous or engaged in criminal activity. Terry, 392 U.S. at 1, 26-28. Appropriately,
he argued that the Terry frisk and seizure of the firearm ran afoul of his constitutional rights and
warranted suppression because it was not justified by a reasonable suspicion that he was armed,
dangerous, and engaged in criminal activity. Id.
i. Rasmussen Hearing – January 30, 2023
A Rasmussen hearing was held on January 30, 2023, before Judge Janzen in Hennepin
County District Court for consideration of whether the Terry frisk that led to the discovery of the
firearm was lawful. Officer Davids testified that he initiated the stop and frisk of Mr. Boclair was
predicated on a suspicion that he was on drugs.
9
STATE: Do you recall if the Defendant said anything to you as you
were approaching?
DAVIDS: Yeah, so I had walked up -- he was there and he said, I

haven't done drugs today.
STATE: And in your experience, people who aren't using drugs, so

they typically volunteer I'm not on drugs?
Evidentiary Hearing Transcript (“Evid. Hrg. Tr.”) 8.
Officer Davids testified on cross-examination that Mr. Boclair did not smell like alcohol
and conceded that Mr. Boclair did not exhibit signs of intoxication or inebriation, and that for this
reason, he elected not to perform a field sobriety test or other objective indicator of DWI—
DEFENSE: There was no report of a drunk driver?
DAVIDS: Not that I can recall, sir.
DEFENSE: No report of a driver on drugs?
DAVIDS: Correct, sir.
DEFENSE: So, was Mr. Boclair ever administered field sobriety tests?
DAIVDS: Not that I know of, sir.
DEFENSE: Was he ever administered a PBT?
DAIVDS: I don't know, sir.
DEFENSE: Was he ever -- was a warrant ever drawn for his blood?
DAIVDS: I don't know, sir.
DEFENSE: Did you ever smell alcohol on Mr. Boclair?
DAIVDS: No . . .
Id. at 19.
10
Officer Davids also testified on cross-examination that there were no signs that Mr. Boclair
was armed and dangerous to the safety of himself or those around him—
DEFENSE: No report of anybody threatening anyone?
DAVIDS: No, sir. . . .
DEFENSE: Then when you arrived on the scene, Mr. Boclair was
talking with medical personnel, correct?
DAVIDS: Yes, sir.
DEFENSE: He wasn't behaving in any way that was threatening

towards them?
DAVIDS: No, sir.
DEFENSE: He wasn't making any threats towards them?
DAVIDS: Not that I know of, sir.
DEFENSE: No one screamed that he was a danger to them?
DAVIDS: No, sir.
DEFENSE: And his hands were in his jacket pocket?
DAVIDS: Yes, sir.
DEFENSE: And at that time, you did not know what was in his jacket
pocket?
DAVIDS: No, sir.
DEFENSE: And at that point, you had no reason to believe that his
jacket pockets contain any evidence of a crime?
DAVIDS: Yes, sir.
Id. at 16-.18.
ii. Order Denying Motion to Suppress – February 16, 2023
11
On February 16, 2023, Judge Janzen issued an Order Denying the Motion to Suppress.
Registrar of Actions Document Index (“Dkt”) # 60, finding that the “totality of
circumstances” warranted suspicion that Mr. Boclair was engaged in criminal activity. Judge
Janzen found that “Officer Davids testified that Mr. Boclair’s unprompted statement that he
“hadn’t been doing drugs,” in Officer Davids experience, gave the officers more reason to believe
that he may have been under the influence of something when he crashed his vehicle . . . [t]he
unexplained car accident in conjunction with Mr. Boclair’s unprompted statement created a
reasonable, articulable suspicion that Mr. Boclair was engaged in criminal activity.” Id. .
Judge Janzen also found that the “totality of circumstances” gave officers a reasonable
basis to believe that Mr. Boclair was armed with a pocketknife, and possibly intoxicated or had
drugs on him at the time of the accident and was therefore engaged in criminal activity. Id. at 5
(“Officer Davids testified that he saw a knife in Mr. Boclair’s right pants pocket prior to
patting him down. The BWC corroborates this testimony, showing that as Mr. Boclair shrugged
his shoulders, an object can be seen hanging from the waistband or pocket of his pants”). As
previously noted, the object that appeared on Mr. Boclair’s pants when he shrugged was his belt.
A-01. The pocketknife was not discovered until after the search-incident-to-arrest was already
underway. SE 006 at 06:31:18 AM.
iii. Stipulated Evidence Trial - February 21, 2023
The parties agreed to have a stipulated facts trial due to the dispositive weight of the denied
suppression motion. Mr. Boclair’s defense counsel, Joseph Vaccaro (“Mr. Vaccaro”) and the State,
by and through Assistant Hennepin County Attorney Maria Mulvihill, agreed to a Lothenbach plea
that would preserve the right to appeal the denial of his motion to suppress evidence on
12
constitutional grounds without a jury trial. See Minn. R. Crim. P. 26.01, Subd. 4; Lothenbach, 296
N.W.2d at 854 (1980).
iv. Disposition and Sentencing - March 2, 2023
On March 2, 2023, Judge Janzen issued a Finding of Fact and Conclusions of Law Order
(Dkt # 69) adjudicating Mr. Boclair guilty of Possession of Ammunition/AnyFirearm - Conviction
or Adjudicated Delinquent for Crime of Violence, in violation of Minn. Stat. § 624.713.1(2), and
sentenced Mr. Boclair to a mandatory minimum term of sixty months confinement.
v. Mr. Boclair’s Present Appeal
Mr. Boclair now appeals his March 2, 2023, conviction for being a Prohibited Person in
Possession of a Firearm, in violation of § Minn. Stat. § 624.713.1(2). Mr. Boclair stipulated to the
prosecution’s case for the appellate review of the district court’s dispositive pretrial ruling
upholding the constitutionality of the Terry frisk that led to the discovery of the firearm. Mr.
Boclair filed a timely notice of appeal on May 1, 2023.
STANDARD OF REVIEW
District Court’s Ruling on Defendant’s Motion to Suppress:
On a stipulated-evidence trial pursuant to Minn. R. Crim. P. 26.01, Subd. 4, the Appellate
Court’s review "is limited to the pretrial order that denied the motion to suppress." State v. Sterling,
782 N.W.2d 579, 581 (Minn. App. 2010). A two-part standard of review is applied to a Court’s
pretrial ruling on the motion to suppress:
(1) the district court’s factual findings are reviewed for clear error,
warranting reversal where a court’s finding is against the manifest
weight of the evidence; and
(2) the district court’s decision as to whether suppression is warranted is

reviewed de novo.
13
See State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008) (quoting State v. Jordan, 742
N.W.2d 149, 152 (Minn. 2007) (“[w]hen 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. Harris, 590 N.W.2d 90,
98 (Minn. 1999) ("[W]hen reviewing pretrial orders on motions to suppress evidence, we may
independently review the facts and determine, as a matter of law, whether the district court erred
in suppressing—or not suppressing—the evidence”). State v. Britton, 604 N.W.2d 84, 87 (Minn.
2000) (“[B]ut we accept the district court’s findings of fact regarding a motion to suppress unless
they are clearly erroneous).
Ineffective Assistance of Counsel:
An appellate court reviews a claim of ineffective assistance of counsel de novo. State v.
Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017) (“[w]hen an ineffective assistance of
counsel claim is properly raised in a direct appeal, we examine the claim under the two-prong test
set forth in Strickland v. Washington . . .”).
ARGUMENT
I. THE DISTRICT COURT ERRED IN DENYING MR. BOCLAIR’S MOTION TO

SUPPRESS THE FIREARM SEIZED FROM HIS JACKET BECAUSE THE
OFFICERS LACKED REASONABLE SUSPICION TO STOP AND FRISK HIM.
Federal and Minnesota Constitutions protect the right of people to be free from
unreasonable searches and seizures by the government. U.S. Const. amend. IV; Minn. Const. art.
I, § 10. Warrantless searches "are per se unreasonable” unless they fall under a clearly delineated
exception to the warrant requirement. See, e.g., Minnesota v. Dickerson, 508 U.S. 377 (1993); Katz
v. United States, 389 U.S. 347, 357 (1967); State v. Hummel, 483 N.W.2d 68, 72 (Minn.
1992); State v. Gray, 456 N.W.2d 251, 256 (1990).
14
One exception to the warrant requirement is a protective pat-down of a person’s outer
clothing to search for weapons. State v. Cavegn, 294 N.W.2d 717, 722 (Minn. 1980) (quoting
Terry, 392 U.S. at 26-27). Called a “Terry frisk” in the vernacular, a protective pat-down of a
person’s outer clothing for the limited purpose of ameliorating imminent harm to that officer is
permissible. See, e.g., Terry 392 U.S. at 26-27 (holding that a law enforcement officer may stop
and frisk someone if the officer has a “reasonable and articulable suspicion” that the person is
armed and dangerous). Stated otherwise, the purpose of a Terry frisk is not to discover evidence
of crime, but to allow the officer carry out his duties without fear of violence. See, e.g., Adams v.
Williams, 407 U.S. 143, 146 (1972) (citing Terry, 392 U.S. at 21, 26-27) (emphasis added).
The “reasonableness standard is an “objective, totality-of-the-circumstances test,” which
asks, “whether the facts available to the officer at the moment of the [search would] warrant a man
of reasonable caution in the belief that the action taken was appropriate.” State v. Smith, 814
N.W.2d 346, 351– 52 (Minn. 2012). To overcome a civilian’s reasonable expectation of privacy
in the absence of a warrant, the officer must be able to articulate facts to justify intruding on a
person’s fundamental rights to be free of unreasonable searches, and the articulable facts, in turn,
must speak to the bigger picture—to the “totality of circumstances,” so to speak. Gray, 456 N.W.2d
at 251, 256 (citing Terry, 392 U.S. at 21, 26-28).
B. The Totality of the Evidence Demonstrates that the Terry Frisk Was Not Justified
by a Reasonable Suspicion that Mr. Boclair Armed and Presently Dangerous.
Decades of Minnesota and United States Supreme Court jurisprudence have told us that
the standard for “reasonable suspicion” is not a subjective one; but rather, it is an “objective,
totality-of-the-circumstances test,” which asks, “whether the facts available to the officer at the
moment of the [search would] warrant a man of reasonable caution in the belief that the action
taken was appropriate.” State v. Smith, 814 N.W.2d 346, 351– 52 (Minn. 2012); see also, Rios v.
15
United States, 364 U. S. 253 (1960); Adams supra at 146 (citing Terry, 392 U.S. at 27-29) (“The
sole justification of the search in the present situation is the protection of the police officer and
others nearby . . .”). ; see also Sibron v. New York, 392 U.S. 40, 42 (1968) (finding that “[t]here
were no adequate grounds for the officer to search Sibron for weapons, since the officer had no
reason to believe that Sibron was armed and dangerous . . .”) (citing Terry, 392 U.S. at 1, 27). If
the officer conducts a Terry frisk without these essential precursors, the frisk is unreasonable and
its fruits merit suppression. Id.; State v. Dickerson, 481 N.W.2d 840 (1992) (quoting Wong Sun v.
United States, 371 U.S. 471, 484, (1963).
There is an obvious corollary to the “reasonableness” requirement: without a reasonable
suspicion that a person is a threat to their safety, the officer cannot lawfully detain or frisk that
person. Terry, 392 U.S. at 1, 27 (quoting Preston, 376 U. S at 364, 367 (1964)) (noting that ‘a
search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to
prevent the disappearance or destruction of evidence of crime”). Overall, whether the officer is
justified their belief that the suspect is dangerous turns on whether “a reasonably prudent man, in
the circumstances, would be warranted in the belief that his safety or that of others was in danger
. . .” Terry, 392 U.S. at 20-21(citing Carroll v. United States, 267 U.S. 132 (1925)).
In assessing reasonableness, the law permits rational inferences to be drawn from the
officer’s experience that he is dealing with an armed and dangerous individual. Brinegar, 338 U.S.
at 160, 174-176. The law does not, however, permit inferences to be drawn from officer’s inchoate
and unparticularized suspicion or ‘hunches’ that the person might be armed with a weapon or
harboring contraband. Id. at 174, 176. Even if the office finds contraband that confirms their hunch,
it will not be admissible if they cannot point to articulable facts to justify the intrusion. Terry, 392
U.S. at 20-21, 27-29.
16
i. Officer Davids’ testimony did not provide a reasonable justification for a search.
In Terry v. Ohio, 392, the Supreme Court upheld the validity of a protective search for
weapons in the absence of probable cause to arrest because “[i]t is unreasonable to deny a police
officer the right to neutralize the threat of physical harm." Id. at 392 U. S. 24, when he possesses
an articulable suspicion that an individual is armed and dangerous. It then follows that the absence
of imminent harm obviates the need to imminently search because there is no threat to neutralize.
Id.
In his written report, Davids seemingly articulates “facts” to justify the intrusion, none of
which are objective, reasonable, or even consistent. For starters, the observations cited by Davids
in his written narrative, drafted the same day as the incident, are entirely inconsistent with BWC
footage of the incident—both of which are inconsistent with his Rasmussen hearing testimony.
Altogether, between his written report and in-court testimony, Davids offers three primary
justifications for frisking Mr. Boclair in the immediate aftermath of his car accident: (1) he said he
was not on drugs; (2) he had a pocketknife; and (3) his hands were in his pockets—
DAVIDS: I told A1 to remove his hands and that I was going to pat
him for weapons for his safety and my safety and ours. A1 said "I
haven't done drugs or nothing.” I told A1 to remove his hands and
that I was going to pat him for weapons for his safety and my safety
and ours. A1 said "I haven't done drugs or nothing . . .”
It is first important to note that Officer Davids did not tell Mr. Boclair that he intended to
search him for weapons. The last words uttered by Officer Davids prior to the frisk were, “Empty
your pockets. Hands up real quick.” SE 005 at 06:30:31. It is also important to note that Mr.
Boclair’s statement, “I haven’t done no drugs or nothing” came before Officer Davids ordered Mr.
Boclair to put his hands up. In fact, Mr. Boclair was in the middle of that sentence, in response to
17
being asked what happened by Officer Moore, when Officer Davids interrupted him and ordered
him to put his hands above his head. Id.
Officer Davids’ written narrative claiming that he gave Mr. Boclair a verbal, and that this
remark was in response to his fabricated verbal warning, suggests that he recognized that Mr.
Boclair had a reasonable expectation because he was not a detained suspect, thereby necessitating
consent to search. Michigan v. Long, 463 U.S. 1032 (1983) (explaining that non-detained suspects
do not need to submit to a search but may consent). At the Rasmussen hearing, Officer Davids
changes the sequence yet again, stating that as soon as he arrived on foot, Mr. Boclair threw his
hands up and said, “I haven’t done drugs or nothing.” Based on his written narrative and testimony,
one can reasonably infer that Officer Davids was frisking Mr. Boclair to confirm a vague hunch
about nonviolent drug use. While the law does permit inferences to be drawn from an officer’s
experience, the inferences must be directly related to the officer’s safety. Terry 392 U.S. at 26-27.
1. “I haven’t done no drugs or nothing.”
Officer Davids’ linkage of his fabricated verbal notice “I told him that . . . I was going to
pat him for weapons for his safety and my safety and ours” with Mr. Boclair’s statement, “I haven’t
done no drugs or nothing” implies that Mr. Boclair knew that Officer Davids was going to search
him, and he responded defensively by denying drug use. It also implies that Davids told Mr.
Boclair he intended to reach for weapons despite only believing he was under the influence. Taken
together, Officer Davids’ asserted basis for frisking Mr. Boclair was to confirm an inchoate
suspicion that Mr. Boclair was possibly on drugs because Mr. Boclair said he was not on drugs.
Evid. Hrg. Tr. 8. It is not clear how Mr. Boclair’s denial that the accident was drug related aroused
suspicion that he was engaged in criminal activity that prevented him to do his job safely. Terry
18
392 U.S. at 26-27 (explaining that the purpose for the search must be legitimately related to the
officer’s safety).
At the January 30, 2023, Rasmussen hearing, Davids took Mr. Boclair’s remark even
further out of context, testifying that it was entirely unprompted; the first thing out of Mr. Boclair’s
mouth when they arrived on foot—
STATE: Do you recall if the Defendant said anything to you

as you were approaching?
DAVIDS: Yeah, so I had walked up -- he was there and he

said, I haven't done drugs today.
STATE: And in your experience, people who aren't using

drugs, so they typically volunteer I'm not on drugs?
As previously noted, Mr. Boclair’s inchoate statement, “I haven’t done drugs today” was
not unprompted by any means; it was part of his response to the question, “What happened man?!”
from Davids’ squad partner Moore. SE 005 at 06:30:32 AM; SE 002. Mr. Boclair was not
defensively denying drug use; he was denying that the accident was drug related—
Medic [06:30:22] He says he’s not injured. He’s the driver

here. He said *muffled* not injured. I knocked on
the side door *muffled* right here on the curb . . .
O. Moore [06:30:30] What happened man?!
Mr. Boclair [06:30:32] I dunno [sic] I mean I haven’t been on

no drugs or nothing *muffled*…
O. Davids [00:06:35] Empty out your pockets. Hands up real

quick.
** frisk
The inconsistency in Davids’ commences**
versions of events greatly undermines his claim that he had
any legal justification to search Mr. Boclair. Moreover, the cited justification—confirming vague
suspicions of drug use—is not a basis for a Terry stop. Terry and its’ progeny cases “stands only
for the proposition that police officers have a narrowly drawn authority to . . . search for weapons’
19
without a warrant.” Adams, supra at 154 (quoting Terry at 392 U.S. 27). While an officer may
draw reasonable inferences based on his training and experience, Brinegar, 338 U.S. at 160, 174-
176, it is reasonable to expect that an experienced officer would be aware that confirming
suspicions of intoxication not an adequate basis for a Terry frisk.
The allegation that Mr. Boclair may have been under the influence was nothing more than
an unsubstantiated suspicion, and one wholly unrelated to his personal safety. Id. at 33 (noting that
“in determining whether the officer acted reasonably in such circumstances, due weight must be
given not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable
inferences which he is entitled to draw from the facts in light of his experience”). What is perhaps
most troubling than Officer Davids’ the grossly inadequate basis for the frisk is Judge Janzen’s
willingness to breathe air into it—finding that the totality of circumstances supported that he was
under the influence when he crashed his car, and in turn, gave Davids an adequate basis to search
him. See Dkt #60 Order (“ . . . [a]nother notable circumstance was the officer’s interaction with
Mr. Boclair himself.
Officer Davids testified that Mr. Boclair’s unprompted statement that he “hadn’t been
doing drugs,” in Officer Davids experience, gave the officers more reason to believe that he may
have been under the influence of something when he crashed his vehicle . . .”). But by Davids own
admission, no one reported that he smelled of alcohol or that he appeared intoxicated or
inebriated—
DEFENSE: So when you arrived on the scene, you arrived at

what was a traffic accident, correct?
DAIVDS: I believe it was a -- either a traffic accident or

personal injury accident, sir.
DEFENSE: Okay. But there was no report of a drunk driver?
20
DAIVDS: Not that I can recall, sir.
DEFENSE: No report of a driver on drugs?
Davids: Correct, sir.
DEFENSE: So, was Mr. Boclair ever administered field

sobriety tests?
DAIVDS: Not that I know of, sir . . .
DEFENSE: Did you ever smell alcohol on Mr. Boclair?
DAIVDS: No . . .
Evid. Hrg. Tr. 17-18.
Curiously, Judge Janzen still found that Officer Davids’ unparticularized suspicion that Mr.
Boclair was intoxicated was a valid basis for the stop. Dkt 60. (“Officer Davids testified that Mr.
Boclair’s unprompted statement that he “hadn’t been doing drugs,” in Officer Davids
experience, gave the officers more reason to believe that he may have been under the influence of
something when he crashed his vehicle . . . [t]he unexplained car accident in conjunction with Mr.
Boclair’s unprompted statement created a reasonable, articulable suspicion that Mr. Boclair was
engaged in criminal activity”). As previously stated, Mr. Boclair’s statement that he had not done
drugs was not unprompted at all; it was a reasonable response to being asked how the accident
occurred. Mr. Boclair was merely denying that the accident was drug related and nothing more.
Even if Terry stops were permissible to investigate vague suspicions of crimes, there were
also no articulable facts to support Davids’ suspicion that Mr. Boclair may have been under the
influence when he crashed his vehicle; see Terry 392 U.S. at 26-27. But even if there were
articulable facts to support Officer Davids’ suspicion that Mr. Boclair was on drugs, or drugs
contributed to the crash, this alone would not suffice as a justification for a stop. Adams, 407 U.S.
21
at 143, 146 (noting “[t]he purpose of a Terry frisk is not to discover evidence of crime, but to allow
the officer carry out his duties without fear of violence).
2. The Pocketknife
In Davids’ written report, he curiously justified the Terry frisk by stating Mr. Boclair had
a pocketknife, while simultaneously reporting that a pocketknife was not discovered until the
search incident to arrest.7 Much like Davids’ tale about the verbal warning and “unprompted”
statement, Davids also misrepresents key facts about the discovery of the pocketknife. In his
written statement, he indicates that he saw the pocketknife immediately when he walked up—
DAVIDS: I walked up to A1 and immediately saw a knife in his

right pants pocket. A1 was with fire and medical staff with his
hands in his pockets. I told A1 to remove his hands and that I was
going to pat him for weapons for his safety and my safety and ours.
A1 said "I haven't done drugs or nothing".
SE 001 at 12.
BWC footage does not corroborate the assertion that Officer Davids had discovered, let
alone was concerned, about a pocketknife. First and foremost, the pocketknife was not found or
mentioned until the search incident to arrest was already underway. SE 006 at 06:31:38 AM. BWC
from all three officers.summarily refute the notion that Officer Davids was inspired to search Mr.
Boclair because he had a pocketknife dangling from his pants. Id. It further refutes the assertion
that Officer Davids predated the frisk with verbal notice, let alone that Mr. Boclair defensively
denied being on drugs to him without prompting. Id. Finally, BWC footage depicts the context in
which Mr. Boclair denied being on drugs, and irrefutably dispels Officer Davids’ assertion that he
7
In his written narrative, Davids reveals that the knife was discovered during the search incident to arrest, stating, “I
searched A1 incident to arrest . . . [w]hile searching I found multiple narcotics related items in different locations . . .
front right pants pocket was a switch blade knife, front right inner hooded sweatshirt pocket a small plastic bag with
suspected marijuana buds.”
22
found the firearm through the right side of Mr. Boclair’s jacket. SE 005 at 06:30:44 AM. Most
notably, the pocketknife was not even discovered by either Officers Davids or Moore.
The frisk of Mr. Boclair commenced at approximately 06:30:35 AM, with Davids wiggling
his hands in Mr. Boclair’s face and saying, “Hands up real quick.” At 06:30:45 AM, Mr. Boclair
was thrown to the ground with excessive force, and Davids and Moore proceeded to handcuff
and aggressively search Mr. Boclair. SE 001 at 1-12. At no point in between did Davids look
down towards or pat Mr. Boclair’s right pants pocket where the pocketknife was later found. SE
005 at 06:30:35 AM. It is worth reiterating that the pocketknife was found inside Mr. Boclair’s
right pocket; it was not hanging out of Mr. Boclair’s pocket or even visible from Davids’ point of
view. SE 005 at 06:30:18 AM - 06:30:41 AM.
At approximately 06:31:38 AM, while rolling Mr. Boclair’s body over from the prone
position to the belly-up position, Erickson pulled the black switchblade pocketknife out of Mr.
Boclair’s right pants pocket and announced, “He’s got a knife too!” and threw it in a pile on the
sidewalk with the rest of Mr. Boclair’s confiscated property. SE 006. Officer Davids, who had
been searching Mr. Boclair incident to arrest for nearly one minute before the pocketknife was
discovered, did not bother to secure or confiscate the pocketknife that he claimed preempted his
suspicion that Mr. Boclair might be armed and dangerous. SE 005 at 06:30:18 AM - 06:30:41
AM.
When Davids testified at the January 30 Rasmussen hearing, he attempted to draw a
connection between his suspicion that Mr. Boclair was possibly under the influence and the
pocketknife. Drawing on his false testimony that Mr. Boclair suspiciously denied being on drugs
23
with no prompting—an unequivocally false assertion—Davids then proceeded to testify that the
accident was shaping up to be a DWI investigation,8 which warranted a search for weapons:
STATE: And as you approached him, did you observe any weapons
on him?
DAVIDS: I saw a knife..
STATE: Okay. And where was –
DAVIDS. In his –
STATE: -- that knife located?
DAVIDS: I believe it was his right pocket. . . so on seeing the knife

and being that it was a possible DDWI [sic] investigation or medical
type issue, I was going to check further for weapons . . .
EH Tr. 9.
**
The causal connection between the pocketknife and the DWI suspicion is unclear. Barring
the fact that the pocketknife was not seen or discovered until the search incident to arrest, there
was no objective indication whatsoever that Mr. Boclair had been driving under the influence.
Moreover, Mr. Boclair never reached inside of his clothing pockets or made any furtive gestures
towards his knife. State v. Varnado, 582 N.W.2d 886, 890-92 (Minn. 1998) (holding that the Terry
frisk of the defendant was unjustified because the defendant did not make any furtive or evasive
movements towards his weapon). More notably, Officer Davids himself never made never
mentioned this pocketknife that he claimed to be so concerned about. SE 005 at 06:30:18 AM –
06:31:38 AM.
8
This is also demonstratively false. Mr. Boclair was never investigated for a DWI; the cause of the accident was never
investigated or determined.
24
Davids’ testimony surrounding the pocketknife is contradictory and frankly nonsensical. If
his narrative were to be believed, that would suggest that Davids walked up and saw a pocketknife
lodged inside of Mr. Boclair’s pocket, ignored the pocketknife until he heard Mr. Boclair deny
being on drugs, and then started patting Mr. Boclair’s left upper body, even though the pocketknife
was inside of Mr. Boclair’s right jeans pocket. Judge Janzen lends credence to Davids’
contradictory observations in finding that the frisk was merited. Dkt. # 60 (“Officer Davids
testified that he saw a knife in Mr. Boclair’s right pants pocket prior to patting him down. The
BWC corroborates this testimony, showing that as Mr. Boclair shrugged his shoulders, an object
can be seen hanging from the waistband or pocket of his pants . . .”).
Judge Janzen’s findings concerning the pocketknife also conflict with Davids’ testimony.
Whereas Davids testified that the pocketknife was inside of Mr. Boclair’s right pocket, Judge
Janzen twice asserted that the search was merited because Davids saw a pocketknife dangling
from the outside of his pants. Dkt # 60. (“Officer Davids testified that he saw a knife in Mr.
Boclair’s right pants pocket prior to patting him down. The BWC corroborates this testimony,
showing that as Mr. Boclair shrugged his shoulders, an object can be seen hanging from
the waistband or pocket of his pants . . .”). As previously noted, the object that appeared on the
front of Mr. Boclair’s pants was his belt—not a knife. A-01.
Notwithstanding that the object hanging from Mr. Boclair’s waistband was his belt as
opposed to a pocketknife, Mr. Boclair never reached for, grabbed onto, or made any furtive
gestures towards anything inside of his pockets or clothing. Varnado, 582 N.W.2d at 890 (holding
that the Terry frisk of the defendant was unjustified because the defendant was did not make any
furtive or evasive movements towards his weapon); see also State v. Alesso, 328 N.W.2d 685, 688
(Minn. 1982) (an officer reasonably could reach into defendant's pocket where “defendant made a
25
furtive movement of his hand toward the pocket, causing the officer to suspect that he might be
reaching for a weapon”). Mr. Boclair’s hands were inside of his jacket pockets throughout the
entire encounter leading up to the Terry frisk; he did not move his hands at any point.
It is worth reiterating that Terry stands for the proposition that officers should be permitted
to frisk a person so that they may carry out their duties without fear of violence. Adams, supra.
While Courts afford wide latitude to the officer’s subjective interpretation of his environment when
performing a Terry stop, it is well-known and documented that an officer must be able to point to
articulable facts that justify the intrusion. Id. Without objective, articulable facts that the person is
armed and dangerous, the Court must not ratify the intrusion. See, e.g., Elkins v. United States, 364
U. S. 206, 222 (1960) (noting that “Courts which sit under our Constitution cannot and will not be
made party to lawless invasions of the constitutional rights of citizens by permitting unhindered
governmental use of the fruits of such invasions”).
There can be no dispute that the search of Mr. Boclair was an unjustified and lawless
invasion that merits suppression It is difficult to fathom that two-armed police officers would be
unable to carry out their duties safely because there was a traffic accident victim standing
motionless on the sidewalk with a pocketknife lodged inside of his right pants pocket—a
pocketknife that he never even reached for. Varnado, 582 N.W.2d at 890.
3. Mr. Boclair’s Hands in his Pockets.
In the context of a warrantless intrusion, authoritative courts consistently rely on objective
cues like body language, furtive or evasive gestures, and overall demeanor in the “totality of
circumstances” assessment. Gray, 456 N.W.2d 251, 256 (citing Terry, 392 U.S. at 21, 26-28).
Body movements have time and again proven reliable in assessing whether officers are warranted
in a belief that they are dealing with a dangerous individual. See, e.g., State v. Richmond, 602
26
N.W.2d 647, 651 (Minn. App. 1999) (holding that a person’s body language and demeanor are
important considerations in the “totality of circumstances” analysis of whether a Terry frisk was
reasonable); citing Terry, 392 U.S. at 1; State v. Alesso, 328 N.W.2d 685, 688 (Minn. 1982)
(finding that the defendant’s furtive movement of his hand toward his pocket was reasonably
suspicious); contra Varnado, 582 N.W.2d at 890 (concluding that a weapons search was not
justified where the suspect did not make any furtive or evasive movements).
First, officers were summoned to a traffic accident—not a crime scene. SE 001. As the two
officers were approaching on foot, Mr. Boclair could clearly be seen on BWC footage standing
with both hands inside of his jacket pockets. SE 005 at 06:30:18 AM. When officers walked up to
Mr. Boclair, he was calmly speaking with medics, who were laughing and smiling. Id Mr. Boclair’s
position did not change when the officers arrived and announced their presence. Id. Mr. Boclair
remained standing calmly with his hands in his pockets. Id. at 06:30:18 AM – 06:30:44 AM. Mr.
Boclair was not moving objects around or grabbing ahold of an object when officers were
approaching,9 and the fifteen seconds between when Davids and Moore arrived and starting
frisking Mr. Boclair, he did not lunge or try to flee. Varnado, supra at 890 (holding that a weapons
search was not justified where the suspect did not make any furtive or evasive movements towards
him weapon). Mr. Boclair was also cooperative and obedient throughout the entire encounter; and
his whole body was always visible before officers started frisking him. Flowers, 734 N.W.2d 239,
250 (Minn. 2007) (holding that, where defendant’s lunging and inability to view defendant during
a traffic stop provided basis for Terry frisk).
With the incriminating emphasis on the fact that Mr. Boclair’s hands were in his pocket,
the “totality of circumstances” analysis also requires consideration of “possible innocent
9
In addition to a firearm, officers seized beef jerkey sticks, condoms, cigarettes, fake currency, marijuana buds,
among other objects. SE 001 at 12.
27
explanations for the alleged suspicious activity.” State v. Baumann, 759 N.W.2d 237, 240 (Minn.
App. 2009). One very plausible, innocent explanation is that Mr. Boclair was standing outside and
not property dressed for the weather. Mr. Boclair’s body language was truly no different than the
medics he was standing with during the encounter. While this would arguably be suspicious under
different circumstances—say, if Mr. Boclair was inside of his car or indoors—in this context, it
was an entirely normal human behavior. See, e.g., Illinois v. Wardlow, 528 U.S. 119 (2000)
(differentiating between evasive behaviors and normal behaviors in assessing the propriety of a
protective pat down)
In sustaining the constitutionality of the frisk, Judge Janzen afforded great weight to the
fact that Mr. Boclair had his hands inside of his pockets. Dkt. #60 (“Mr. Boclair did not remove
his hands from his large front jacket pocket throughout his interaction with medical personnel and
law enforcement warranted the officers’ concerns that Mr. Boclair may be in possession of
additional weapons or firearms . . .”). While it is true that Mr. Boclair did not remove his hands
from his pockets until he was asked to, that conduct simply is not suspicious of car accident victim
who was not dressed appropriately to stand outside while receiving emergency services.
Most importantly, Mr. Boclair took his hands out of his pockets immediately after he was
ordered to by Davids. SE 005 at 06:30:34 AM. This was the first time Mr. Boclair moved any part
of his body, and it was to place his hands above his head in conformity with what he was told. Id.
Boclair did not resist Davids’ efforts to search him, and he never tried to reach back into his pockets
any time after he was told to remove them. Id. Mr. Boclair did not become angry, loud, or
boisterous, when Davids abruptly started frisking him. Id. In fact, by Davids own admission, Mr.
Boclair did not exhibit any tendencies that objectively signified that officers were dealing with a
dangerous individual. Evid. Hrg. Tr. 16-17.
28
To conclude, Davids justified the Terry frisk that led to the discovery of the firearm with
three articulable “facts”: (1) he denied being intoxicated; (2) he had a pocketknife; and (3) he had
his hands inside of his jacket pockets. BWC footage refutes his written report and testimony on
almost every level; however, even if taken together, the totality of these articulable suspicion
would not merit a Terry frisk because they inarguably would not have merited a belief that Mr.
Boclair was a dangerous individual. Terry, 392 U.S. at 26-28;. Florida v. Royer, 460 U.S. 491
(1983) (holding that there where there is nothing to indicate the officers had any concern for their
safety, then a Terry frisk is not merited).
By Davids’ own admission, he did not believe that Mr. Boclair was armed, dangerous, or
had contraband in his pockets when he started frisking him; he was suspicious that Mr.
Boclair was under the influence. Evid. Hrg. Tr. 8-9. But, as in Terry, Sibron, and Adams,
supra, there is no occasion in this case to determine whether police officers have a right to seize
and to restrain a citizen with a reasonable expectation of privacy to confirm vague, uncorroborated
suspicions of crime that are wholly unrelated to public of personal safety. Even if Mr. Boclair was
under the influence when he crashed his car, this would not have prevented Davids or Moore from
being able to perform their duties without fear of violence. Adams, 407 U.S. at 143, 146; Beck v.
Ohio, 379 U. S. 89, 96- 97 (1964); Terry, 392 U.S. at (“the proper balance that has to be struck in
this type of case leads us to conclude that there must be a narrowly drawn authority to permit a
reasonable search for weapons for the protection of the police officer, where he has reason to
believe that he is dealing with an armed and dangerous individual”) (emphasis added).
C. The Firearm Inadmissible Under the “Exclusionary Rule” Because it Was

Seized in Violation of Mr. Boclair’s Fourth Amendment rights.
The fruits of unreasonable Terry frisk are inadmissible under the Fourth Amendment
“exclusionary rule.” Hummel, 483 N.W.2d 68, 72 (Minn. 1992). Evidence seized during an
29
unreasonable search “should find no sanction in the judgments of the courts . . . ," Weeks v. United
States, 232 U. S. 383, 391-393 (1914); and that such evidence "shall not be used at all."
Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). For "what the Constitution forbids
is not all searches and seizures, but unreasonable searches and seizures." Elkins v. United States,
364 U. S. 206, 222 (1960).
In Terry, the Supreme Court held that a person who is walking down a public street has a
reasonable expectation of privacy. Terry, 392 U.S. at 9 (citing Beck v. Ohio, 379 U. S. 89, 96-97
(1964) (noting that anything less than objective, articulable facts “would invite intrusions upon
constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches”).
Without objectively suspicious or threatening circumstances, a person’s reasonable expectation of
privacy persists, even during an encounter with law enforcement. Id.; Camara v. Municipal Court,
387 U.S. 523, 534-535, 536-537 (1967) (“[a]nd, in justifying the particular intrusion, the police
officer must be able to point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion”) (emphasis added).
The fruits of a frisk may not be retroactively validating the officer’s hunch that a person is
under the influence. See, e.g., Terry, 392 U.S. at 21, 27-28; (citing Warden v. Hayden, 387 U. S.
294, 310 (1967) (explaining that the scope of the search must be "strictly tied to and justified by
the circumstances which rendered its initiation permissible”). More to the point, a Terry stop is not
intended to be used to discover or investigate a crime, but rather, to obliterate threats of harm that
stand in the way of an officer doing their job. Terry, 392 U.S. at 8 (distinguishing between the
rationale for a “frisk” versus an arrest).
Judge Janzen’s willingness to accept unparticularized hunches as assertions of facts and
readiness to neatly package them into the skeletal framework of Terry is troubling. The scheme of
30
the Fourth Amendment becomes meaningful only when it is assured that, at some point, the conduct
of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of
a judge who must evaluate the reasonableness of a particular search or seizure considering the
circumstances. Michigan v. Summers, 452 U.S. 692 (1981). The was no relationship between the
hunch that he was intoxicated, and the threat allegedly imposed by his pocketknife, which renders
the search unreasonable and unjustified based on the totality of the evidence. Royer, 460 U.S. 491
(holding that a Terry stop is not a tool to investigate vague suspicions of criminal conduct without
a legitimate purpose related to the officer’s safety).
Court’s assessment of whether a law-enforcement officer acted reasonably under the
circumstances must be based on articulable facts. The corollary is also true: a Court’s assessment
of whether a law-enforcement officer acted reasonably under the circumstances must not be based
on unparticularized hunches or speculation. Terry, 392 U.S. at 38. Judge Janzen’s Orders not only
lend credence to Davids’ unparticularized suspicions, but in doing so, enable the exact type of
conduct that the Constitution and clarifying laws were designed to proscribe. See, e.g., Camara,
387 U. S. 523, 534-535 (holding that, in justifying the intrusion, “the police officer must be able
to point to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion”).
Returning to the question of what is a “reasonable” suspicion in Smith, 814 N.W.2d 346,
which asks, “whether the facts available to the officer at the moment of the [search would] warrant
a man of reasonable caution in the belief that the action taken was appropriate,” the answer in this
matter is a resounding “no.” The totality of the circumstances compels the conclusion that Mr.
Boclair was that of an ordinary civilian who had a reasonable expectation of privacy, and the search
of his person for all the cited justifications fall grossly short of a “reasonable and articulable
31
suspicion.” To this end, the district court’s justifications for the Terry frisk are fundamentally
flawed and set a dangerous precedent for public law enforcement—the exact type of excessive
obtrusion by public law enforcement that Terry and decades of Supreme Court jurisprudence were
intended to expressly proscribe. To this end, the district court’s ruling on the issue of suppression—
and the court’s reasoning—merits careful review, and ultimately, an order remanding the case back
to the district court for an order dismissing the charge.
II. MR. BOCLAIR’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO

RAISE OR CHALLENGE NUMEROUS ERRORS IN THE PROSEUCTION’S
CASE THAT WERE DISPOSITIVE TO THE DISTRICT COURT’S DENIAL OF
MR. BOCLAIR’S MOTION TO SUPPRESS.
Liberty is inherently tied to human dignity, to the extent that our Constitution offers several
protections for it. One of these protections is the Sixth Amendment right to effective assistance of
counsel. U.S. Const amend. VI. The intent behind the Sixth Amendment is to ensure that another
human being does not end up confined to a cage arbitrarily or inadvertently. Strickland, 466 U.S.
at 668. The Minnesota Constitution likewise affords a guarantee to competent counsel for the. See
Minn. Const. Art. I, § 6 (“[i]n all criminal prosecutions . . .wherein the crime shall have been
committed, which county or district shall have been previously ascertained by law . . . [t]he
accused shall enjoy the right to . . . have the assistance of counsel in his defense”); See also
American Bar Association Rule 1.1 (“[a] lawyer shall provide competent representation to a
client”).
Competent representation, at minimum, requires the legal knowledge, skill, thoroughness,
and preparation reasonably necessary for the representation. See Minn. Rule. 1.1. Effective
representation, in turn, requires competence, preparation, investigation, thoughtful analysis, or at
minimum, ensuring that the finder of fact has all the accurate, exculpatory facts. Id. In assessing
effectiveness of counsel, the analysis requires another “reasonable,” and “totality of the
32
circumstances,” inquiry. The overall inquiry is two-pronged one: (1) whether the attorney's
performance fell below an objective standard of reasonableness; and (2) whether the attorney,
whose performance was objectively deficient towards their client, prejudiced the outcome of their
client’s case. Strickland, 466 US at 668-69.
A. Mr. Vaccaro’s Performance In these Proceedings Fell Grossly Short of the

Standard of scceptable.
The standard for acceptable performance is not clearly delineated, but appropriate factors
to consider are thoroughness of the investigation; analysis of the evidence; challenging false,
adverse evidence at its’ disposal, and communication. See, e.g., McMann v. Richardson, 397 U.S.
759, 768–71 (1970). The obligation to present favorable, exculpatory evidence extends to opposing
counsel as well. Brady v. Maryland, 373 U.S. 83 (1963) (holding that government's withholding
of evidence that is material to the determination of either guilt or punishment of a criminal
defendant violates the defendant's constitutional right to due process); see also United States v.
Agurs, 427 U.S. 97, 102 n.5 (1976). Considering Brady, coupled with the guarantees of effective
representation and due process, it stands to reason that an effective advocate must review the
evidence before them, raise exculpatory information and challenge inculpatory misinformation
before the case reaches the factfinder.
i. Mr. Vaccaro did not establish an adequate factual basis for the suppression motion.
Evidently, Mr. Vaccaro recognized that that this proceeding would turn on the district
court’s ruling on the constitutionality of the Terry stop. For this reason, Mr. Vaccaro advised Mr.
Boclair to enter a Lothenbach plea, which entailed stipulated to the prosecution’s case to avoid the
unnecessary expense of a jury trial, while simultaneously preserving the issue for appellate review
33
if the ruling was unfavorable.10 Lothenbach, 296 N.W.2d at 854; Minn. R. Crim. P. 26.01, Subd.
4. Mr. Boclair accepted the plea and signed a waiver of his rights. Dkt. #64.
Lack of preparation and failing to review the evidence are factors considered in the context
of an ineffectiveness claim. From a distance, Mr. Vaccaro went through the appropriate motions:
he informed Mr. Boclair that the pretrial ruling would be dispositive, counseled him on the rights
he would be waiving, appeared at the Rasmussen hearing and cross-examined the testifying officer,
showed up at the disposition and sentencing hearing. See Registrar of Actions, Court File No. 27-
CR-22-10162. At a substantive level, however, Mr. Vaccaro’s performance fell grossly short of
acceptable.
One of Mr. Vaccaro’s most serious omissions was forging an agreement with the State that
the district court’s ruling on the pretrial suppression issue, without Mr. Vaccaro did not file a
proper motion to suppress, or at minimum, present an adequate, or even arcuate basis to establish
why the Terry frisk and its’ fruits merited suppression. Following the Rasmussen hearing, Judge
Janzen requested briefs from both in support of their respective positions and would take the matter
under advisement. The State filed a four-page memorandum, with a factual history, in opposition
to the motion to suppress; it was shrouded with material misrepresentations. Mr. Vaccaro filed a
two-paragraph letter ignoring the content of the State’s memorandum, perpetuating some of these
same misrepresentations.
The district court’s ruling was premised on three primary findings: (1) Mr. Boclair denied
that his accident was drug-related, which, according to Judge Janzen, aroused a “reasonable”
10
It is worth noting that the State neglected to submit copies of Mr. Boclair’s felony convictions as stipulated evidence,
which theoretically ought to have acquitted him. The underlying intention between parties was not stipulate that Mr.
Boclair had a prior conviction for the same offense and be subjected to the mandatory minimum; however, Judge
Janzen unilaterally reopened the record only after adjudicating Mr. Boclair guilty to include his prior felony
convictions, including his prior ineligible person conviction, and sentenced him to the mandatory minimum. Judge
Janzen relied on three authorities, all pertaining to jury trials, one dating back to the 1920s, to support this decision.
34
suspicion that he was engaged in criminal activity; (2) Mr. Boclair had a pocketknife dangling
from his waistband, which rendered him an immediate danger to the safety of the officers and
medics surrounding him; and (3) Mr. Boclair’s hands were in his pockets when the officers were
speaking with him. Dkt. #65. All these falsehoods could have been observed by glancing at the
first thirty seconds of the BWC footage from either of the two officers. And considering that Judge
Janzen’s ruling was premised on the BWC footage from the three officers, and the testimony from
Officer Davids, and nothing more, it necessarily follows that Mr. Vaccaro’s failure to review the
BWC footage carefully was unacceptable, unreasonably, and a neglect that was so serious that no
other reasonable advocate would do the same under the circumstances. Accordingly, the district
ruled adversely on the suppression issue, which was dispositive to the entire case.
B. Mr. Vaccaro’s Deficient Performance Prejudiced Mr. Boclair’s Case to the Extent
That, But for His Deficient Performance, The Outcome Would Have Been Different.
In addition to showing deficient performance, the defendant must demonstrate that the
attorney's errors or omissions had a significant impact on the outcome of their case. Strickland,
466 U.S. 691-696. The defendant must prove that there is a reasonable probability that, but for the
attorney's errors, the result of the trial would have been different. Id. Given that Mr. Vaccaro
created an agreement wherein the pretrial ruling on the motion to suppress would be dispositive,
and then failed to make a case for why the district court should suppress the evidence, he sabotaged
his client’s case. What’s even more troubling is that the evidence stipulated to was largely
exculpatory to Mr. Boclair’s case, but none of this was offered in Mr. Boclair’s defense.
1. Mr. Vaccaro’s Failure to Address Material Misrepresentation’s in the State’s Case

Prejudiced the Outcome of Mr. Boclair’s Case.
The encounter between Mr. Boclair and officers commenced at 06:30:18 AM on December
16, 2021, with Officer Davids walking up on foot. SE 005 at 06:30:18 AM. While his squad
35
partner, Officer Moore, lagged for a few seconds to put on two pairs of gloves. Id.at 06:30:20 AM.
Immediately, was noticeable that the medics were not only safe, and Mr. Boclair was standing
upright with no discernable gait issues. Id. Mr. Boclair. Yet somehow, a misrepresentation that
Mr. Boclair looked to be drunk and “stumbling around,” which surfaced in the first piece of
stipulated evidence—the police report—was perpetuated in writing by the State and ultimately,
Judge Janzen’s Order, the BWC footage from both officers showing that he was standing upright
and was objectively lucid.
This glaringly apparent observation, readily available to Mr. Vaccaro in BWC footage from
both Officer Moore (SE 005) and Officer Davids (SE 007) but was never challenged by Mr.
Vaccaro. It is not quite clear how Mr. Boclair having possibly been stumbling around would have
been an immediate justification for a Terry frisk. What is clear that this was a falsehood should
not have gone unnoticed to a diligent representative who carefully reviewed the evidence and was
an omission that prejudiced Mr. Boclair’s case. Strickland, 466 U.S. at 668
i. Failing to address misrepresentations of material facts from which the district

courts conclusions were derived.
1. “I haven’t done drugs today.”
At the Rasmussen hearing on January 30, 2023, Officer Davids testified expounded on his
written narrative that, as soon as he and his squad partner approach, Mr. Boclair
immediately aroused suspicions of drug use by denying being on drugs. SE 001 at 12. The
narrative set forth by Officer Davids is that as soon as they approached, the first words that came
out of anyone’s mouth were form Mr. Boclair, and the words were, “I did no drugs today or
nothing.” Id.. This misrepresentation telephoned its’ way through the remainder of the
proceedings, first in the State’s memorandum in opposition of motion to dismiss, Dkt #57, until
it landed in the Order Dkt. # 60.
36
The false narrative that Mr. Boclair instantly threw his hands up and said, “I haven’t done
drugs today” could have easily been dispelled by anyone with access to the first 15 seconds of
the BWC camera footage from Officer Moore (SE 005) or Officer Davids (SE 007).11 See also
Dkt. #75 Exhibit List, item SE 002: Transcript of Video/Audio Officer Moore’s BWC footage.
Not only was this put forth in a misleading fashion, but there was no evidence to
substantiate that Mr. Boclair was on drugs. To be sure, at the Rasmussen hearing, Officer
Davids that Mr. Boclair appeared drunk; that anyone mentioned him smelling of alcohol; and
even his own suspicion that Mr. Boclair was drunk by admitting that he never did a field sobriety
test or objective measure of intoxication. Evid. Hrg. Tr. 18-19.
Despite the contradictions in Officer Davids’ justifications for the frisk, and which
the BWC footage from the encounter overwhelmingly refutes, Mr. Vaccaro did not raise or
challenge them. There was nothing objectively suspicious about Mr. Boclair’s behavior, which
was a point conceded to by Officer Davids. This ought to have been the building block for a
written brief, complete with a statement of facts, or at least an oral motion, arguing that
the officer’s unparticularized suspicion of drug use or intoxication was not only fictious, but not
a justification for a Terry frisk. Terry does not permit carte blanch access to ordinary civilians
based on vague, unfounded suspicions that are not tied to imminent danger.
11
Mr. Boclair filed an ethics complaint against Mr. Vaccaro for his failure to adequately prepare for his defense. In
his response, Mr. Vaccaro effectively stated that he could not have done a better job because Mr. Boclair’s behavior
was inherently suspicious. Specifically, Mr. Vaccaro stated that as soon as officers approached Mr. Boclair, he threw
his hands up and said, “I’m not on drugs.” This is a falsehood that is irrefutably dispelled by the first thirty seconds
of the BWC Footage.
37
It remains unclear how the suspicion that Mr. Boclair might have been high when he
crashed his car gave rise to a “reasonable suspicion” that Mr. Boclair was dangerous to those
around him to the extent that the search could not wait. Any diligent, reasonable person who
reviewed the evidence, and watched the first fifteen seconds of the BWC footage from either
officer, would have surmised that the narrative relied on by the district court was false, if not
entirely fictious. To this end, Mr. Vaccaro performance was objectively deficient and fell grossly
short of the standard of for effective, competent counsel, and the omission was one so serious that
it directly prejudiced the outcome of his case. Strickland, supra.
2. The Pocketknife/Belt.
As noted, the pocketknife that was “immediately apparent” when Mr. Boclair shrugged his
shoulders was his belt. A-01; SE 005 at 6:30:24 AM. Mr. Boclair did have a pocketknife affixed
to the inside of the right pocket of his jeans, but this was not found, or even mentioned, until the
search incident to arrest was underway. It is worth reiterating that when the pocketknife had
contributed to the “bigger picture,” totality of the evidence analysis. Strickland, 466 U.S. 691-696
(holding that court hearing an ineffectiveness claim must consider the totality of the evidence
before the judge). discovered, the Terry frisk had already occurred. SE 006 at 06:31:38 AM (“He’s
got a pocketknife too”). In other words, the pocketknife could not have been the justification,
because it was not even discovered by the officers conducting the frisk. This omission is self-
explanatory.
Hypothetically speaking, if the object was a pocketknife, then the question of whether the
Terry frisk was lawful turns on whether the visibility of the pocketknife rendered him immediately
dangerous to the safety of those around him. In other words, the visibility of the pocketknife must
Mr. Boclair was casually conversing with the medics when officers arrived. The medics began
38
briefing officers on what happened, while Mr. Boclair waited for his car keys. Officer Moore asked
Mr. Boclair “what happened,” and Mr. Boclair denied that the accident was the result of drugs.
There was no mention of a pocketknife, or even a pocketknife in view on the BWC footage before
Officer Davids walked up to Mr. Boclair, wiggled his fingers him his face, and said “hands up
really quick.”
Mr. Boclair immediately obeyed the orders of Officer Davids and put his hands above his
head. Officer Davids proceeded to aimlessly frisk the left side of Mr. Boclair’s jacket, and Officer
Moore joined in from the right. Officer Moore says, “What’s this? Is this a gun?” to which Mr.
Boclair replied, “Yes, sir.” At no point were any furtive gestures made in the direction of his pants
to suggest he intended on grabbing ahold of the pocketknife. Even after the firearm was found, he
remained calm and obeyed orders. He did not resist or deny that he had a firearm on him, or being
shoved face-down on the pavement with excessive force after it was discovered. Thus, in looking
at the “bigger picture,” complete with accurate facts, it is not clear how the pocketknife prevented
the officers from safely doing their jobs.
The fact that this exculpatory fact was not used in Mr. Boclair’s defense is jarring on two
levels. First, the object cited by Judge Janzen was not a weapon; it was a piece of clothing A-01.
Second, even if Judge Janzen were correct in the assessment that the belt was a pocketknife, the
question remains: how a pocketknife affixed to Mr. Boclair’s pants, that he made no furtive
gestures towards during the encounter, be dangerous to the safety of the officers. Varnado, 582
N.W.2d 886, 890-92. Mr. Boclair was outnumbered by armed officers, and when they arrived, the
medics who had already completed their evaluation of Mr. Boclair and he was waiting to go home.
SE 005 at 06:30:18 AM- 06:30: 31AM. Mr. Vaccaro nevertheless failed to raise either one of these
two points: that the pocketknife was not discovered before the Terry frisk, and necessarily could
39
not be a justification for it. As a result of this omission, the fact that Mr. Boclair was wearing a
belt compelled the district court to conclude that he was armed and dangerous, and the Terry frisk
was justified.
3. Mr. Boclair’s hands in his pockets.
Mr. Boclair was standing with his hands in his pockets from the moment officers arrived.
Id. As previously noted, there was a very plausible and innocent explanation for this: Mr. Boclair
is a human being, who reacts to external stimuli such as cold weather. Baumann, 759 N.W.2d 237,
240 (holding that the “totality of circumstances” analysis also requires consideration of “possible
innocent explanations for the alleged suspicious activity”). To be sure, the medics standing with
Mr. Boclair at the exact same time also had their hands in their pockets. SE 005 at 06:30:18 AM.
While the case law tells us that body language, such as standing with one’s hands in their pockets,
is pertaining to the “reasonableness” assessment, so are innocent explanations for otherwise
seemingly suspicious activity.
Overall, Mr. Vaccaro’s performance fell grossly short of acceptable, and his deficient
performance directly prejudiced Mr. Boclair’s case. By crafting an agreement with the State
wherein the district court’s pretrial ruling on the suppression issue, and then failing to establish a
factual basis for why suppression was merited, is alarming. By failing to investigate the case and
review the evidence, Mr. Vaccaro overlook material misrepresentations in the State’s case, and
glaringly erroneous findings of fact that led to the denial of Mr. Boclair’s motion to suppress. Had
Mr. Boclair reviewed the BWC footage, presented an accurate sequence of events, there is a
substantial likelihood that the outcome would have been different. Accordingly, Mr. Vaccaro’s
performance was grossly deficient as a matter of law, and but for his performance, Mr.
Boclair likely would have prevailed. Accordingly, Mr. Vaccaro deprived Mr. Boclair of his Sixth
Amendment right to effective assistance of counsel,. Strickkland, supra.
40
CONCLUSION
For the reasons set forth above, Mr. Boclair respectfully requests that this Court reverse
the district court’s pretrial ruling denying the Motion to Suppress and remand the case to the district
course for an order dismissing the case.
Dated: August 21, 2023. Respectfully submitted,
/s/Sarah Gad
Attorney Reg. No. 403328
Gad & Gad Law Offices
916 Emerson Ave. N.
Minneapolis, MN 55411
(612)-512-1870
sarah@gadlawoffice.com
41
CERTIFICATE OF COMPLIANCE
I hereby certify that Appellant’s Brief in case A23-0626 complies with the Minnesota Rules
of Appellate Procedure 132.01, Subdiv. 3(a)(1), and that the brief contains 12,616 words. The
Brief was prepared using Microsoft Word for Mac (2016) and complies with the typeface
requirements for Rule 132.01.
Dated: August 14, 2023 / s/ Sarah Gad____

Sarah Gad, 0403328
Attorney for Appellant
916 Emerson Avenue
Minneapolis, MN 5541
Phone: 612-512-1870
sarah@gadlawoffice.com
42
APPELLANT’S ADDENDUM
BWC Frame from Officer Moore’s BWC Footage…………………………………………A-01
43
ADDENDUM: A-01
SE 005: BWC Footage from Officer Moore demonstrating that Mr. Boclair, the medic, and
Officer Davids all had their hands in their pockets.
SE 005: BWC Footage from Officer Moore demonstrating that the item seem hanging from Mr.
Boclair's pants when he shrugged was his belt.
A-01

Appellate Brief: Hurie Tyrone Boclair v. State of Minnesota

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Appellate Brief: Hurie Tyrone Boclair v. State of Minnesota

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No.

Hurie Tyrone Boclair

BRIEF OF APPELLANT HURIE TYRONE BOCLAIR

STATEMENT OF THE ISSUES ………………………………………………………….……..1

STATEMENT OF THE CASE ……………………………………………………...……………2

STATEMENT OF FACTS ………………………………………………………………….........4

STANDARD OF REVIEW ……………………………………………………………………..13

I. THE DISTRICT COURT ERRED IN DENYING MR. BOCLAIR’S MOTION TO

CERTIFICATES OF COMPLIANCE ………………………………………………………......42

Adams v. Williams, 407 U.S. 143, 146 (1972) …………………………………………...15, 19-21

Beck v. Ohio, 379 U. S. 89, 96- 97 (1964) ……………………….………………………...……30

Brinegar v. United States, 338 U. S. at 160, 175 (1949) ………………………………………..16

Brady v. Maryland, 373 U.S. 83 (1963) ………………………………………………………...33

Camara v. Municipal Court, 387 U.S. 523 (1967) ………………......…………………….........31

Carroll v. United States, 267 U.S. 132 (1925) ………………...……………………….…..........16

Elkins v. United States, 364 U. S. 206, 222 (1960) ………………………………………….26, 30

Florida v. Royer, 460 U.S. 491 (1983 )……………………………………………...…29, 31, 27

Illinois v. Wardlow, 528 U.S. 119 (2000) )……………..………………………………………..28

Katz v. United States, 389 U.S. 347, 357 (1967) ………………………………………...……...14

McMann v. Richardson, 397 U.S. 759, 768–71 (1970) …………………..……………………..33

Michigan v. Long, 463 U.S. 1032 (1983)……………………………………………………18, 38

Michigan v. Summers, 452 U.S. 692 (1981)………………………………………………..……31

Minnesota v. Dickerson, 508 U.S. 377 (1993) …………………………………………...……...14

Preston v. United States, 376 U. S at 364, 367 (1964)…..………………………………………16

Rios v. United States, 364 U. S. 253 (1960)…………………………………......…………..15, 16

Sibron v. New York, 392 U.S. 40, 42 (1968)………………..……………………………………16

State v. Alesso, 328 N.W.2d 685, 688 (Minn. 1982)……………………...………………….25-26

State v. Baumann, 759 N.W.2d 237, 240 (Minn. App. 2009)…………..……………………28, 29

State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000) …………….….………..…………….……..14

State v. Cavegn, 294 N.W.2d 717, 722 (Minn. 2980) ………………………………………..….15

State v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017)…………………………………14

State v. Flowers, 734 N.W.2d 239, 247-48 (Minn. 2007)……………………………………….27

State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008) ……………..……….……………….…..14

State v. Gray, 456 N.W.2d 251, 256 (1990) ………...…………………………..…………..14, 26

State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999)……………………………………………….14

State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) ………………………….……….…….14, 29

State v. Jordan, 742 N.W.2d 149, 152 (Minn. 2007)……………..……………………………..13

State v. Lothenbach, 296 N.W.2d 854 (Minn.1980)……………………….……….………..13, 30

State v. Richmond, 602 N.W.2d 647, 651 (Minn. App. 1999)…………………………………..26

State v. Smith, 814 N.W.2d 346, 351– 52 (Minn. 2012). ………………………...………….15, 31

State v. Sterling, 782 N.W.2d 579, 581 (Minn. App. 2010)………………………………..……13

State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998)…………………..………………25-26, 38

Strickland v. Washington, 466 U.S. 668 (1984). ……………………………………...…….32, 35

Tollett v. Henderson, 411 U.S. 258, 266–69 (1973) ………..………………………………...…33

United States v. Agurs, 427 U.S. 97, 102 (1976)…...………………………………………...…33

Warden v. Hayden, 387 U. S. 294, 310 (1967) ………………………………………..…….19, 30

Weeks v. United States, 232 U. S. 383, 391-393 (1914) ………………………………………...30

Wong Sun v. United States, 371 U.S. 471 (1963) )……………………………………………....16

MINN. CONST. Art. I, § 6. ……………………………………………………………………..32

MINN. CONST. Art. I, § 10. …………………………………………………………………....14

U.S.CONST. amend. IV……………..…………………………………………………………..14

U.S.CONST. amend. VI……………..…………………………………………………………..32

MINN. R. Crim. P. 26.01, Subd. 4………………………………………………………………13

I. WHETHER THE DISTRICT COURT ERRED BY DENYING MR. BOCLAIR’S

of Ammunition/AnyFirearm - Conviction or Adjudicated Delinquent for Crime of Violence, in

or engaged in criminal activity.

Most apposite authority: Terry v. Ohio, 392 U.S. 1 (1968).

minimum of 60 months in the Minnesota Department of Corrections.

Most apposite authority: Strickland v. Washington, 466 U.S. 668 (1984).

STATEMENT OF THE CASE

Conviction or Adjudicated Delinquent for Crime of Violence, in violation of Minn. Stat. §

was armed, dangerous, and engaged in criminal activity.

district court’s denial of the motion to suppress.

with the clerk of the appellate court on June 19, 2023.