                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.
                                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

                                       1
      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


                                       2
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


                                       3
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:

                                        4
             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


                                          5
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




                                         6
