ND unconstitutionally shifts burden of proof to def to show she was not seized

A car with two passengers was pulled over for a headlight violaiton, and the driver gave a false name and had a warrant. She was arrested. A drug dog was called. The defendant passenger was free to leave at the time of the arrest of the driver but didn’t. The drug dog arrived in five minutes and alerted on the car, and the defendant ended up arrested, too. The court “refuses” to find she was detained [even though Brendlin says that passengers are detained with the car and she wasn’t told she could drive the car off or walk down the highway in the night]. State v. Bell, 2017 ND 157, 2017 N.D. LEXIS 161 (June 29, 2017). The court shifts the burden to the defendant:

[*P12] Here, Bell was detained as a passenger of Solvie’s vehicle for the duration of the traffic stop. However, the traffic stop ended when Solvie was placed under arrest on her warrant. Bell presented no evidence at the suppression hearing showing she was not free to leave after Solvie’s arrest and a review of the record does not suggest otherwise. Rather, Bell urges us to assume she was not free to leave; we refuse to do so. Cf. Hammeren v. North Dakota State Highway Com’r, 315 N.W.2d 679, 682 (N.D. 1982) (declining to assume the defendant was confused). Bell was not seized at the time of the dog’s drug sniff and therefore, Bell’s Fourth Amendment rights were not violated. The district court properly denied Bell’s motion to suppress evidence.

Where was the state’s proof during this warrantless detention and search that the defendant was free to leave? The state has the burden of proof throughout in a warrantless seizure and search.

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