City of Jamestown v. Jerome2/20/2002
seizure if the officer "inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response." State v. Langseth, 492 N.W.2d 298, 300 (N.D. 1992). We have recognized also it is not a seizure for an officer to walk up to and talk to a person in a public place. State v. Steinmetz, 552 N.W.2d 358, 359 (N.D. 1996). A seizure occurs within the context of the Fourth Amendment only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. State v. Boline, 1998 ND 67, 25, 575 N.W.2d 906.
[ ] 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. We affirm the decision of a trial court on a motion to suppress, after resolving conflicting evidence in favor of affirming the decision, unless we conclude there is insufficient evidence to support the decision or the decision goes against the manifest weight of the evidence. State v. Loh, 2000 ND 188, 4, 618 N.W.2d 477. Recognizing the importance of the trial court's opportunity to observe witnesses and assess their credibility, we accord great deference to the trial court's findings of fact in suppression matters. Id.
[ ] The relevant facts in this case are not in dispute. Upon receiving the dispatch of an anonymous tip that Jerome was intoxicated and driving her vehicle, Shahin located and followed Jerome's vehicle. He did not, however, make any attempt to pull over or stop Jerome. After Jerome voluntarily parked her vehicle in her driveway and exited from it, Shahin asked, in a conversational and non-threatening manner, if he could speak with her for a minute. Jerome turned, recognized the officer, and without hesitation or condition responded, "yes." In denying the motion to suppress evidence, the trial court found Shahin was merely conducting a caretaking activity when he talked with Jerome, and the court concluded Shahin did not, therefore, "stop" Jerome within the Fourth Amendment context of search and seizure.
[ ] We disagree with the trial court's finding that Shahin, in talking with Jerome, was conducting a community caretaking function. The community caretaking function is an activity "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." State v. Langseth, 492 N.W.2d 298, 300 (N.D. 1992). Shahin's request to talk with Jerome does not fall within the "community caretaking" role, because his objective was to investigate the possibility of a law violation, not to help a person in possible need of assistance. In circumstances where it is obvious that a citizen is neither in need of nor desires assistance there is no community caretaking role to fill. State v. DeCoteau, 1999 ND 77, 21, 592 N.W.2d 579.
[ ] We agree, however, with the trial court's conclusion that, under these circumstances, Shahin's approach toward and conversation with Jerome was not a stop within the context of the Fourth Amendment and did not implicate Jerome's rights against unreasonable search and seizure. When Shahin approached Jerome he requested permission to speak with her and she readily agreed to talk with him. Shahin did not escalate this casual encounter into a seizure by ordering Jerome to do something, by demanding a response, or by threatening her with a show of authority or command. There is no assertion or evidence that Jerome's cons
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