                Filed 8/22/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA


                                  2019 ND 216


State of North Dakota,                                        Plaintiff and Appellee

      v.

John Edward Casson, Jr.,                                  Defendant and Appellant


                                  No. 20190028


       Appeal from the District Court of Mercer County, South Central Judicial
District, the Honorable Bruce A. Romanick, Judge.

      AFFIRMED.

      Opinion of the Court by Jensen, Justice.

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

      Todd N. Ewell, Bismarck, ND, for defendant and appellant.
                                   State v. Casson
                                    No. 20190028


       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.
[¶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.”

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[¶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

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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
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 encounter.
[¶11] Casson, after having a reasonable belief he was part of a law enforcement
investigation, was then asked to consent to a search of his vehicle. When he refused
to allow the search, he was told a K-9 unit would be called to conduct a “sniff” of the
vehicle.
[¶12] The statement by law enforcement that a K-9 would be called is significant
because it allows insight into what a reasonable person would have been thinking. If
law enforcement truly intended to call a K-9 unit, they must have been fairly certain
Casson felt he was not free to leave. If law enforcement didn’t intend to call a K-9
unit, but instead intended to trick Casson into giving his consent to search the vehicle,
law enforcement must have felt Casson would believe he was not free to leave. The
trickery, while not impermissible, does provide support for the conclusion that a
reasonable person would not have felt free to leave. Casson’s immediate concession
that calling a K-9 wouldn’t be “necessary” is further indicia he felt he was required

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to stay until the search occurred and the result was inevitable. Because Casson had
already demonstrated he was willing and able to decline a voluntary request to search
his vehicle, his immediate reversal consenting to a search upon the officer’s statement
that a dog would be called leads us to conclude that a reasonable person in his
position would have believed he was not free to leave.
[¶13] The statement law enforcement officers were investigating drug activity, the
request for identification, the lack of a traffic stop, the denied consent to search
followed by the assertion a K-9 unit would be called, and Casson’s response the K-9
would not be necessary, are sufficient for Casson to satisfy his burden to provide a
prima facie evidence he had been seized.
[¶14] Having concluded Casson was seized, it becomes necessary to consider
whether his seizure violated his right to be protected from unreasonable searches and
seizures provided by the Fourth Amendment of the United States Constitution, and
art. I, § 8 of the North Dakota Constitution. We have applied the “Terry” test to
determine whether a seizure is justified, noting if there is reasonable and articulable
suspicion that a person has committed or is about to commit a crime, the seizure is
justified. State v. Mercier, 2016 ND 160, ¶ 8, 883 N.W.2d 478 (citing Terry v. Ohio,
392 U.S. 1, 16 (1968)).       We have articulated the Terry test as requiring a
determination of whether the facts warranted the intrusion of the individual’s Fourth
Amendment rights, and if so, whether the scope of the intrusion was reasonably
related to the circumstances which justified the interference in the first place.
Mercier, at ¶ 9 (citing State v. Sarhegyi, 492 N.W.2d 284, 286 (N.D. 1992). “We use
an objective standard: would a reasonable person in the officer’s position be justified
by some objective evidence in believing the defendant was, or was about to be,
engaged in unlawful activity?” State v. Boyd, 2002 ND 203, ¶ 14, 654 N.W.2d 392.
[¶15] Our determination of whether an officer had a reasonable and articulable
suspicion that a person has committed or is about to commit a crime is limited to the
information known to the officer at the time of the stop. State v. Robertsdahl, 512
N.W.2d 427, 428 (N.D.1994). We have noted the justification for a stop under the

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reasonable-and-articulable-suspicion standard requires the officer to possess “more
than just a vague ‘hunch’ or other non-objective facts; and . . . the articulable facts
must produce, by reasonable inference, a reasonable suspicion of unlawful conduct.”
Bryl v. Backes, 477 N.W.2d 809, 811, n. 2 (N.D.1991) (quoting State v. VandeHoven,
388 N.W.2d 857, 858, n. 1 (N.D.1986)). We have recently stated the following
regarding our determination of whether the officer had reasonable and articulable
suspicion to justify the stop:
       The determination of whether the facts in a case support a reasonable
       suspicion is a question of law which is fully reviewable on appeal. We
       affirm the district court’s decision unless we conclude there is
       insufficient competent evidence to support the decision, or unless the
       decision goes against the manifest weight of the evidence.

State v. Bornsen, 2018 ND 256, ¶ 5, 920 N.W.2d 314 (internal citations omitted).
[¶16] At the suppression hearing, a narcotics task force officer testified that while he
was off duty, he observed Casson traveling to a local park known for drug use and
sales. Previous reports labeled Casson as part of the drug trade in the park, and law
enforcement cameras set up in the area captured images of his truck in the area on
numerous occasions. We conclude the State presented sufficient evidence during the
hearing to conclude law enforcement had reasonable and articulable suspicion Casson
was engaged in criminal activity or about to engage in criminal activity to justify the
intrusion of Casson’s Constitutional rights, and the scope of the intrusion was
reasonably related to the circumstances which justified the interference.
[¶17] We agree with Casson that he was seized and his right to be free from
unreasonable search and seizure implicated. However, we conclude the facts
warranted the intrusion of Casson's Fourth Amendment rights, and scope of the
intrusion was reasonably related to the circumstances which justified the intrusion.




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The district court’s denial of the motion to suppress was appropriate and we affirm
the criminal judgment.
[¶18] Jon J. Jensen
      Jerod E. Tufte
      Gerald W. VandeWalle, C.J.


         Crothers, Justice, specially concurring.
[¶19] The majority concludes Casson was seized for Fourth Amendment purposes
when the deputies threatened to get a drug sniffing dog. I respectfully disagree.
[¶20] In reviewing a district court’s decision on a motion to suppress we defer to the
district court’s findings of fact, and we resolve conflicts in testimony in favor of
affirmance because the district court is in a superior position to assess the witnesses’
credibility and weigh evidence. State v. Schmidt, 2015 ND 134, ¶ 5, 864 N.W.2d 265.
“A district court’s findings of fact on a motion to suppress will not be reversed if there
is sufficient competent evidence fairly capable of supporting the court’s findings, and
the decision is not contrary to the manifest weight of the evidence.” Id. (quoting State
v. DeCoteau, 1999 ND 77, ¶ 6, 592 N.W.2d 579). Questions of law are fully
reviewable, and whether a finding of fact meets a legal standard is a question of law.
Id.
[¶21] Here, the district court agreed with the State’s argument that this was a casual
encounter, and that the deputies did not use lights, sirens or other indicia of law
enforcement control. The district court also found Casson was not seized when law
enforcement merely stated a K-9 would be called to complete a vehicle perimeter
sniff.
[¶22] The Fourth Amendment of the United States Constitution and art. I, § 8 of the
North Dakota Constitution protects individuals from unreasonable searches and
seizures. Not all encounters between law enforcement and citizens are seizures
implicating the Fourth Amendment.           Garcia v. Levi, 2016 ND 174, ¶ 11,
883 N.W.2d 901. An officer approaching and speaking with a citizen is not a Fourth
Amendment seizure. Id. A Fourth Amendment seizure occurs if a reasonable person

                                            6
would believe, viewing all the circumstances surrounding the incident, that he or she
is not free to leave. State v. Fields, 2003 ND 81, ¶ 11, 662 N.W.2d 242. An officer’s
approach of a parked vehicle is not a seizure if the officer inquires of the occupant
conversationally, does not order the person to do something, and does not demand a
response. Garcia, at ¶ 11.
[¶23] Based on this record and the district court’s findings, I agree with the district
court that a Fourth Amendment seizure did not occur when law enforcement made
contact with Casson. The deputies did not engage in a show of force when they
located Casson in the park. Casson exited the truck on his own and met a deputy at
the back of the vehicle. The deputy asked if Casson was carrying identification but
did not demand to see it. The deputy asked for permission to search Casson’s truck.
Casson clearly felt free to refuse the search request and said no. When the deputy
indicated a K-9 would be called, he did not direct Casson to wait outside of or stay
away from his truck. Importantly, upon mention of a K-9 sniff, Casson immediately
consented to a search.
[¶24] I do not agree with the majority that law enforcement’s mere mention of
obtaining additional resources objectively constitutes a Fourth Amendment seizure.
See majority opinion, ¶ 12. If that was the case, law enforcement seemingly would
escalate every casual encounter into a seizure by doing nothing more than calling for
a backup officer. Under the majority’s logic, a backup officer would serve no purpose
if the driver is free to leave, and the driver and car could be gone when backup
arrives. Yet I doubt many would conclude an officer’s singular act of calling for
backup transforms a non-custodial encounter into a seizure. We also know without
extensive citation to authority that officers often ask to search a vehicle, sometimes
without sufficient legal suspicion or cause to do so. See, e.g., State v. Schneider,
855 N.W.2d 399, ¶ 3, 2014 ND 198 (deputy sheriff approached parked car and asked
to search). If a driver in such a case refuses to permit the search, and the officer bluffs
by stating in response that a warrant could be obtained, I seriously doubt many courts
would conclude a seizure occurred simply because the officer made a statement about

                                            7
getting (or even threatened to get) a warrant. So too here, I do not agree that an
officer merely stating he was going to call for a K-9 transformed this non-custodial
encounter into a Fourth Amendment seizure.
[¶25] Because a seizure under the Fourth Amendment did not occur, I would not
address whether the facts support reasonable articulable suspicion to detain Casson.
Rather, I would affirm the district court based on the lack of a Fourth Amendment
seizure.
[¶26] Daniel J. Crothers
      Lisa Fair McEvers




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