Filed 03/19/20 by Clerk of Supreme Court 

IN THE SUPREME COURT 

STATE OF NORTH DAKOTA 

2020 ND 69 

State of North Dakota, Plaintiff and Appellant 

 v. 

Richard Dwayne Cook, Defendant and Appellee 

No. 20190305 

Appeal from the District Court of Ward County, North Central Judicial 

District, the Honorable Stacy J. Louser, Judge. 

AFFIRMED. 

Opinion of the Court by Tufte, Justice. 

Christopher W. Nelson, Assistant State’s Attorney, Minot, N.D., for plaintiff 

and appellant. 

Tyrone J. Turner, Bismarck, N.D., for defendant and appellee. 
1 

State v. Cook 

No. 20190305 

Tufte, Justice. 

[¶1] The State of North Dakota appeals from a district court order 

suppressing evidence. Because the district court properly concluded Chief 

Schmidt’s seizure of Cook was not justified by reasonable suspicion, we affirm. 

I 

[¶2] In early April 2019, Berthold Police Chief Allen Schmidt and Reserve 

Officer Greg Pinske stopped a car driven by Richard Cook for an unilluminated 

license plate. At the time of the stop, Pinske was not a licensed peace officer. 

Officer Pinske approached the car and obtained Cook’s driver’s license. Officer 

Pinske returned to the squad car with Cook’s license. Officer Pinske did not 

report to Chief Schmidt that he observed any suspicious behavior by Cook 

during the initial encounter. 

[¶3] Officer Pinske ran a records check using Cook’s driver’s license, which 

revealed Cook had a 2016 drug conviction. At that point, Chief Schmidt took 

over the traffic stop. Chief Schmidt approached Cook’s vehicle and explained 

to Cook that he was performing drug interdiction that evening. Chief Schmidt 

asked Cook if he could search his car. Cook refused. Chief Schmidt then 

ordered Cook out of the car so he could perform a canine sniff around the car. 

[¶4] Cook exited the car, and Chief Schmidt patted down the outside of Cook’s 

clothes. Chief Schmidt found a concealed switchblade knife on Cook’s person. 

Chief Schmidt then deployed his canine, and the canine alerted to the presence 

of drugs. Chief Schmidt searched the car and found drugs and paraphernalia. 

Cook was arrested and charged with several offenses. 

[¶5] A preliminary hearing was held in May 2019. Chief Schmidt testified 

about the details of the stop. During cross-examination, the State objected to 

defense questioning and stated: 

MR. ENSRUD: Your Honor, I’m going to object as far as the—a lot 

of questioning as far as this Red Card stuff. I definitely thought 
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earlier when we were going towards probable cause, potential 

suppression issues is worth giving Mr. Turner quite a bit of 

latitude rather than making him go through a whole separate 

hearing on suppression. But we’re kind of past any type of 

suppression issues and we’re just onto probable cause. I think 

we’ve pretty well covered the stop at this point. 

At the conclusion of the hearing, the district court found probable cause. 

[¶6] Cook moved to suppress evidence gathered during the traffic stop, 

alleging he was illegally seized in violation of the Fourth Amendment. In 

Cook’s brief, he referenced Chief Schmidt’s preliminary hearing testimony. 

[¶7] A hearing was held on Cook’s motion to suppress in August 2019. The 

district court called on the State to present its evidence. The State argued it 

was not required to present evidence because Cook had not yet presented 

evidence to establish a prima facie illegal seizure and therefore the burden of 

persuasion had not yet shifted to the State. The district court treated the 

prosecutor’s statement at the preliminary hearing as a tacit admission that 

Cook had established a prima facie illegal seizure. 

[¶8] The State then called Chief Schmidt to testify. At the end of the hearing, 

the district court concluded Chief Schmidt violated Cook’s Fourth Amendment 

right against unlawful seizures by prolonging the stop for a drug investigation. 

The court suppressed all evidence obtained during the traffic stop. The State 

appealed from the suppression order, and filed the following statement with 

its notice of appeal: “This appeal is not taken for purpose of delay and the 

evidence is a substantial proof of a fact material in the proceeding.” 

II 

[¶9] Under N.D.C.C. § 29-28-07(5), the State may appeal from an order 

suppressing evidence when accompanied by a statement of the prosecuting 

attorney asserting that the appeal is not taken for purpose of delay and that 

the evidence is a substantial proof of a fact material in the proceeding. The 

statement of the prosecuting attorney here merely recites the statutory 

language. We have indicated that the State should do more than “parrot[] the 
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language of N.D.C.C. § 29-28-07(5).” State v. Beane, 2009 ND 146, ¶ 6, 770 

N.W.2d 283. Despite the State’s mere recitation of the statutory standard, it is 

clear that the district court order would suppress all of the State’s evidence on 

elements of the crimes charged, and thus it is substantial proof of a fact 

material in the proceeding. We conclude that the appeal is properly before us. 

III 

[¶10] The State argues the district court erred in shifting the burden of 

persuasion from the defendant to the State without first requiring the 

defendant to establish a prima facie illegal seizure. 

A person alleging her rights have been violated under the 

Fourth Amendment has the initial burden of establishing a prima 

facie case of illegal seizure. City of Fargo v. Sivertson, 1997 ND 

204, ¶ 6, 571 N.W.2d 137. After the person alleging a Fourth 

Amendment violation has made a prima facie case, the burden of 

persuasion is shifted to the State to justify its actions. Id.

City of Jamestown v. Jerome, 2002 ND 34, ¶ 6, 639 N.W.2d 478. A prima facie 

case is established if the party bearing the burden of proof presents evidence 

strong enough, if uncontradicted, to support a finding in his favor. In re Estate 

of Clemetson, 2012 ND 28, ¶ 8, 812 N.W.2d 388 (describing the standard as “a 

bare minimum”). Whether a prima facie case has been established is a question 

of law. Id.

[¶11] The State argues the moving party’s evidentiary showing must be made 

at the suppression hearing. In support, the State cites State v. Canfield, in 

which we said, “A defendant then has the burden of establishing a prima facie 

case at the motion hearing before the State is required to put on evidence.” 

2013 ND 236, ¶ 7, 840 N.W.2d 620 (emphasis added). The phrase “at the motion 

hearing” was not necessary to our holding in Canfield. It does appear in State 

v. Fitterer, 2002 ND 170, ¶ 10, 652 N.W.2d 908, which Canfield relies on, but 

that case also does not confront a situation like the one here where the 

necessary prima facie showing was already part of the record in the case 

through testimony at a prior hearing. The phrase does not appear in our other 

cases describing the same procedure, and we have found no case in any 
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jurisdiction that imposes such a requirement. See, e.g., Jerome, 2002 ND 34, 

¶ 6, 639 N.W.2d 478; Sivertson, 1997 ND 204, ¶ 6, 571 N.W.2d 137; State v. 

Glaesman, 545 N.W.2d 178, 182 n.1 (N.D. 1996). 

[¶12] The district court was familiar with Chief Schmidt’s preliminary hearing 

testimony, which was in the record. Cook characterizes the district court’s 

consideration of Chief Schmidt’s preliminary hearing testimony as the court 

taking judicial notice. A court does not need to take judicial notice of matters 

that are already in the record in that case. Rule 201, N.D.R.Ev., does not apply 

here. The preliminary hearing testimony established that law enforcement 

officers seized Cook without a warrant. If uncontradicted, this would be the 

minimum showing required to support a finding in Cook’s favor. Because Chief 

Schmidt’s preliminary hearing testimony was part of the record of the case and 

it established a prima facie illegal seizure, we conclude the district court did 

not err in shifting the burden to the State to present evidence in support of an 

exception to the warrant requirement. 

IV 

[¶13] The State argues the district court erred in granting Cook’s motion to 

suppress evidence. 

The trial court’s disposition of a motion to suppress will not 

be reversed if, after conflicts in the testimony are resolved in favor 

of affirmance, there is sufficient competent evidence fairly capable 

of supporting the trial court’s findings, and the decision is not 

contrary to the manifest weight of the evidence. [This standard] 

recognizes the importance of the trial court’s opportunity to 

observe the witnesses and assess their credibility, and we “accord 

great deference to its decision in suppression matters.” 

State v. Vetter, 2019 ND 138, ¶ 5, 927 N.W.2d 435 (quoting State v. 

Montgomery, 2018 ND 20, ¶ 4, 905 N.W.2d 754). 

[¶14] The State argues Cook was not unreasonably seized for the drug 

investigation because the seizure was justified by reasonable suspicion. In 

Vetter, we summarized the law on when a traffic stop becomes an illegal 

seizure: 
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Traffic violations justify a stop by police officers. When an 

officer seizes an individual for a traffic violation, it justifies a police 

investigation of that violation. Because a routine traffic stop is 

relatively brief, it is more like a “Terry stop” than an arrest. The 

time it takes to complete the “mission” of the stop, to “address the 

traffic violation that warranted the stop and attend to related 

safety concerns,” is a permissible length of time to detain someone. 

However, a stop may not extend longer than the amount of time 

necessary to effectuate the purpose of the traffic stop. An officer’s 

seizure of a person is permitted only until the tasks tied to the 

traffic infraction are—or reasonably should have been—

completed. A traffic stop prolonged beyond the “time reasonably 

required to complete the stop’s mission” is unlawful. Unrelated 

inquiries are permitted during a stop as long as they do not prolong 

the stop and extend the time the individual is detained. A stop may 

be prolonged only if the officer has reasonable suspicion to justify 

detaining the individual for inquiries unrelated to the stop.

2019 ND 138, ¶ 6, 927 N.W.2d 435 (internal citations omitted). 

[¶15] The parties do not dispute that Chief Schmidt lawfully stopped Cook for 

an unilluminated license plate. From the outset, the lawful “mission” of the 

stop was to issue a warning or citation for the equipment violation. The district 

court found that Chief Schmidt initiated a controlled substances investigation 

and abandoned the equipment violation when he took over from Officer Pinske. 

The testimony before the court included nothing to indicate Chief Schmidt or 

Officer Pinske did anything to further pursue the equipment violation and all 

further actions related only to the drug investigation. Because the equipment 

violation was no longer the justification for the stop, Chief Schmidt’s continued 

seizure of Cook to pursue a controlled substances offense was unreasonable 

unless justified by reasonable suspicion of a controlled substances offense. The 

parties disagree as to whether Chief Schmidt had established reasonable 

suspicion of a crime at the time he stopped pursuing the traffic stop and began 

investigating a drug offense. 

[¶16] When determining whether an officer had reasonable suspicion, we 

employ an objective standard looking at the totality of the circumstances and 

taking into consideration the reasonable inferences and deductions an 
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investigating officer may make. State v. Hall, 2017 ND 124, ¶ 21, 894 N.W.2d 

836. “Whether the facts support a reasonable and articulable suspicion is a 

question of law.” Id. “The question is whether a reasonable person in the 

officer’s position would be justified by some objective manifestation to suspect 

the defendant was, or was about to be, engaged in unlawful activity.” State v. 

Franzen, 2010 ND 244, ¶ 12, 792 N.W.2d 533. 

[¶17] The State argues Chief Schmidt had reasonable suspicion to extend the 

traffic stop because he observed Cook had constricted pupils and a 2016 drug 

conviction. Mindful of the district court’s superior position to assess the 

credibility of witnesses, we do not reweigh the evidence. The district court 

appears to have relied on Officer Pinske’s report of seeing nothing suspicious 

on his first approach to Cook’s vehicle, and the court placed little, if any, weight 

on Chief Schmidt’s observation of Cook’s constricted pupils. This leaves Cook’s 

2016 drug conviction as the basis for Chief Schmidt’s suspicion. Knowledge of 

a person’s criminal history by itself is not enough to support a finding of 

reasonable suspicion. State v. Fields, 2003 ND 81, ¶ 15, 662 N.W.2d 242. We 

conclude there is sufficient competent evidence fairly capable of supporting the 

trial court’s findings and the decision is not contrary to the manifest weight of 

the evidence. We affirm the district court order suppressing evidence. 

V 

[¶18] Because the district court properly concluded Chief Schmidt’s seizure of 

Cook was not justified by reasonable suspicion, we affirm the order 

suppressing evidence. 

[¶19] Jerod E. Tufte 

Daniel J. Crothers 

Lisa Fair McEvers 

Gerald W. VandeWalle 

Jon J. Jensen, C.J