State v. Casson, No. 20190028

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: Jensen, Justice.
• Citation: 932 N.W.2d 380
• Decision Date: 22 August 2019
• Docket Number: No. 20190028
• Parties: STATE of North Dakota, Plaintiff and Appellee v. John Edward CASSON, Jr., Defendant and Appellant

932 N.W.2d 380

STATE of North Dakota, Plaintiff and Appellee
v.
John Edward CASSON, Jr., Defendant and Appellant

No. 20190028

Supreme Court of North Dakota.

Filed August 22, 2019

Jessica J. Binder, State’s Attorney, Stanton, ND, for plaintiff and appellee.

Todd N. Ewell, Bismarck, ND, for defendant and appellant.

Jensen, Justice.

¶1] 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.

[¶2] 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.

[932 N.W.2d 382

[¶3] 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 produce identification.

¶4] 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 ...." Casson told the officer he did not want them to search his vehicle.

[¶5] 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."

[¶6] 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.

[¶7] "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 ).

[¶8] 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 court.

[¶9] The facts of this case differ from Fields . The defendant in Fields had been 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

[932 N.W.2d 383

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 position.

¶10] 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 investigation. A reasonable person would not have been under the impression this was a welfare check or community caretaker...