Filed 03/19/20 by Cler k 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 Wa rd County, North Central Judicial District, the Honorable St acy 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, Bi smarck, 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 distr ict court properly concluded Chief Schmidt’s seizure of Cook was not justified by reason able suspicion, we affirm.

I
[¶2] In early April 2019, Be rthold Police Chief Alle n 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 ob tained Cook’s driver’s license. Officer Pinske returned to the squad car with Cook’s license. Officer Pinske did not report to Chief Schm idt that he observed any su spicious behavior by Cook during the initial encounter.
[¶3] Officer Pinske ran a records check us ing 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 ap proached Cook’s ve hicle and explained to Cook that he was performing drug in terdiction that even ing. Chief Schmidt asked Cook if he could se arch his car. Cook refu sed. 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 Schmid t patted down the outside of Cook’s clothes. Chief Schmidt found a conceale d switchblade knife on Cook’s person. Chief Schmidt then deployed his canine, and the canine alerte d to the presence of drugs. Chief Schmidt searched the car and found drugs and paraphernalia. Cook was arrested and charge d with several offenses.
[¶5] A preliminary hear ing was held in May 2019 . Chief Schmidt testified about the details of the stop. During cro ss-examination, the State objected to defense question ing and stated:
MR. ENSRUD: Your Honor, I’m going to object as far as the—a lot of questioning as far as this Re d Card stuff. I de finitely thought2 earlier when we were going towa rds probable cause, potential suppression issues is worth givi ng Mr. Turner quite a bit of latitude rather than making hi m go through a whole separate hearing on suppression. But we’r e 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, th e district court found probable cause.
[¶6] Cook moved to suppress evidence gathered du ring the traffic stop, alleging he was illegally se ized in violation of th e Fourth Amendment. In Cook’s brief, he referenc ed Chief Schmidt’s prelim inary hearing testimony.
[¶7] A hearing was held on Cook’s motion to suppress in August 2019. The district court called on the State to pres ent its evidence. The State argued it was not required to pres ent evidence because Cook had not yet presented evidence to establish a prima facie illega l 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 pr ima facie illegal seizure.
[¶8] The State then called Chief Schmidt to testify. At the en d of the hearing, the district court concluded Chief Schmid t violated Cook’s Fourth Amendment right against unlawful seizures by prol onging the stop for a drug investigation. The court suppressed all ev idence obtained during th e 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 stateme nt of the prosecuting attorney asserting that th e 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 prosecut ing attorney here merely recites the statutory language. We have in dicated that the State should do more than “parrot[] the3 language of N.D.C.C. § 29-28-07(5).” State v. Beane , 2009 ND 146, ¶ 6, 770 N.W.2d 283. Despite the Stat e’s mere recitation of the statutory standard, it is clear that the district court order would suppress all of the St ate’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 di strict court erred in sh ifting the burden of persuasion from the defe ndant to the State with out first requiring the defendant to establish a pr ima facie illegal seizure.
A person alleging her rights ha ve 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. Afte r the person alleging a Fourth Amendment violation has made a pr ima 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 38 8 (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 de fendant then has the burden of establishing a prima facie

case at the motion hearing before the State is requir ed to put on evidence.” 2013 ND 236, ¶ 7, 840 N.W.2d 620 (empha sis added). The phrase “at the motion hearing” was not necessa ry to our holding in Canfield . It does appear in State

v. Fitterer , 2002 ND 170, ¶ 10, 652 N.W.2d 908, which Canfieldrelies on, but that case also does not confront a situation like the one here where the necessary prima facie showing was alread y 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 any4 jurisdiction that impose s 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 th e record. Cook characteri zes the district court’s consideration of Chief Sc hmidt’s preliminary hearin g testimony as the court taking judicial notice. A court does not ne ed 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 wa s part of the record of the case and it established a prima faci e illegal seizure, we conc lude the district court did not err in shifting the burden to the State to present ev idence in su pport of an exception to the warrant requirement.

IV
[¶13] The State argues the district court e rred in granting Cook’s motion to
suppress ev idence.
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 fi ndings, and the decision is not contrary to the manifest weight of the evidence. [This standard] recognizes the importance of th e trial court’s opportunity to observe the witnesses and assess th eir credibility, and we “accord great deference to its decisi on 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 un reasonably seized for the drug investigation because the seizure was ju stified by reasonable suspicion. In Vetter , we summarized the law on when a traffic stop be comes an illegal seizure:5 Traffic violations justify a stop by police offi cers. When an officer seizes an individual for a tr affic 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 comple te the “mission” of th e stop, to “address the traffic violation that warranted the stop and atte nd to related safety concerns,” is a permissible le ngth of time to detain someone. However, a stop may not extend lo nger than the amount of time necessary to effectuate the purpose of the tra ffic stop. An officer’s seizure of a person is permitted only until the tasks tied to the traffic infraction are—or re asonably should have been— completed. A traffic stop prolonge d beyond the “time reasonably required to complete the stop’s mission” is unlawful. Unrelated inquiries are permitted du ring a stop as long as they do not prolong the stop and extend the time the in dividual is detained. A stop may be prolonged only if the officer ha s reasonable suspicion to justify detaining the individual for in quiries unrelate d to the stop.
2019 ND 138, ¶ 6, 927 N.W.2d 4 35 (internal citations omitted).
[¶15] The parties do not dispute that Chie f Schmidt lawfully stopped Cook for an unilluminated license plate. From th e outset, the lawful “mission” of the stop was to issue a warning or citation for the equipment viol ation. The district court found that Chief Schmidt initiate d 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 investigati on. Because the equipment violation was no longer th e justification for the stop , Chief Schmidt’s continued seizure of Cook to pursue a controll ed substances offe nse was unreasonable unless justified by reasonabl e 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 stopp ed pursuing the traffic stop and began investigating a drug offense.
[¶16] When determining whether an office r had reasonable suspicion, we employ an objective standard looking at the totality of the circumstances and taking into consideration the reason able inferences an d deductions an6 investigating officer may make. State v. Hall , 2017 ND 124, ¶ 21, 894 N.W.2d 836. “Whether the facts support a reas onable 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 objectiv e 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 re asonable suspicio n to extend the traffic stop because he ob served Cook had constric ted pupils and a 2016 drug conviction. Mindful of th e district court’s superior position to assess the credibility of witnesses, we do not reweigh the ev idence. The district court appears to have relied on Officer Pinske ’s report of seeing nothing suspicious on his first approach to Cook’s vehicle, an d the court placed little, if any, weight on Chief Schmidt’s ob servation of Cook’s constricted pupils. Th is 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 th e manifest weight of the evidence. We affirm the distric t court order supp ressing evidence.

V
[¶18] Because the district court properly co ncluded 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