from the District Court of Mercer County, South Central
Judicial District, the Honorable Bruce A. Romanick, Judge.
Jessica J. Binder, State's Attorney, Stanton, ND, for
plaintiff and appellee.
N. Ewell, Bismarck, ND, for defendant and appellant.
John Casson appeals from a criminal judgment entered after
his conditional plea of guilty to possession of a controlled
substance and drug paraphernalia, reserving the right to
appeal the denial of his motion to suppress evidence. On
appeal, Casson argues the district court erred in denying his
motion to suppress because law enforcement lacked reasonable
suspicion to detain him and unlawfully seized him by stating
a K-9 unit would be called to complete a "sniff" of
Casson's vehicle. We conclude that although Casson was
seized, sufficient reasonable suspicion existed to detain
Casson and we affirm the judgment of the district court.
While off-duty, a narcotics task force officer observed
Casson traveling to a local park known for drug use and
sales. Previous reports had identified Casson as part of the
drug trade in the park. Law enforcement cameras set up in the
area had captured images of Casson's truck in the
immediate vicinity of the park on numerous occasions. The
off-duty narcotics officer contacted an on-duty Sheriff's
deputy, and the two met to "check on" the truck.
The two law enforcement officers parked somewhere behind
Casson's vehicle in a secluded area of the park. The
officers, during their conversation with Casson, informed him
the reason they had approached him was because of increased
drug activity in the park. Casson complied with a request to
Law enforcement testified "after I explained everything
to Mr. Casson, I did ask him if I could get consent to have
the deputy check his vehicle . . . ." Ca sson told the
officer he did not want them to search his vehicle.
Upon denying the request to search his vehicle, Casson was
told a K-9 unit would perform a "sniff" of the
vehicle. Casson's response, as testified to by the
narcotics officer, was an immediate concession that calling
the K-9 wouldn't be "necessary."
Casson contends he was seized without sufficient reasonable
suspicion to justify the seizure. The State contends Casson
was not seized and, if determined to have been seized, his
seizure was justified by reasonable suspicion Casson was
engaged in or about to engage in criminal activity.
"The Fourth Amendment of the United States Constitution
and Article I, Section 8 of the North Dakota Constitution
protect individuals from unreasonable searches and
seizures." State v. Gagnon, 2012 ND 198, ¶
8, 821 N.W.2d 373. We have previously recognized a
"person alleging a Fourth Amendment violation has an
initial burden of establishing a prima facie case of an
illegal search or seizure." State v. Schmidt,
2016 ND 187, ¶ 8, 885 N.W.2d 65 (citing State v.
Lanctot, 1998 ND 216, ¶ 8, 587 N.W.2d 568; City
of Fargo v. Sivertson, 1997 ND 204, ¶ 6, 571 N.W.2d
137). "However, after the defendant has made a prima
facie case, the burden of persuasion is shifted to the State
to justify its actions." Sivertson, at ¶
6. "The movant initially has the burden to make specific
allegations of illegality and to produce evidence to persuade
the court the evidence should be suppressed." State
v. Pogue, 2015 N.D. 211, ¶ 10, 868 N.W.2d 522
(citing State v. Glaesman, 545 N.W.2d 178, 182 n. 1
(N.D.1996)). "Whether law enforcement violated
constitutional prohibitions against unreasonable search and
seizure is a question of law." Schmidt, at
¶ 8 (citing State v. Uran, 2008 ND 223, ¶
5, 758 N.W.2d 727).
A person has been "seized" within the meaning of
the Fourth Amendment if, in view of all of the circumstances
surrounding the incident, a reasonable person would have
believed that they were not free to leave. State v.
Fields, 2003 ND 81, ¶ 11, 662 N.W.2d 242. In
Fields, after being stopped for a traffic violation,
the defendant refused to consent to a search of his vehicle.
Id. at ¶ 12. The defendant was told that a K-9
unit would be called to "sniff" the defendant's
vehicle. Id. The defendant was asked to get out of
his vehicle and stand next to the officer. Id. This
Court concluded "it is reasonable to believe that a
person in Fields' position would not have felt free to
leave the scene. We conclude that Fields was seized within
the meaning of the Fourth Amendment when he was held awaiting
the arrival of the drug detection dog." Id.
Both parties relied on our opinion in Fields to
support their arguments on appeal and before the district
The facts of this case differ from Fields. The
defendant in Fields ha d be e n the subject of a
traffic stop, while in this case Casson was parked when the
officers approached. In Fields, the defendant was
asked to get out of his vehicle in conjunction with the
comment a K-9 unit was being called to the scene while Casson
was already out of his vehicle. Although factually different
from Fields, this case still requires us to
determine whether a reasonable person would have felt they
were not free to leave had they been in Casson's
Upon initially approaching Casson, the law enforcement
officers made a clear statement to Casson that they were in
contact with him because of increased drug activity in the
area. A reasonable person would have believed law enforcement
had initiated the contact for the purpose of an
investigation. Additionally, the lack of a traffic stop would
have likely reenforced the perception to any reasonable
person they were the subject of an ...