author: CROTHERS, Justice.

text:
    2006 ND 44
    STATE of North Dakota, Plaintiff and Appellee v. Daniel James ANDERSON, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee v. Jesse Mikal Anderson, Defendant and Appellant.
    Nos. 20050202, 20050229.
    Supreme Court of North Dakota.
    Feb. 23, 2006.

      Aaron Grayson Birst, Assistant State’s Attorney, Fargo, N.D., for plaintiff and appellee.
    Monty Grant Mertz (on brief), Fargo, N.D., for defendant and appellant Daniel James Anderson.
    Jesse N. Lange, Larivee & Light, Fargo, N.D., for defendant and appellant Jesse Mikal Anderson.
   CROTHERS, Justice.

[¶ 1] Jesse Anderson (“Jesse”) and Daniel Anderson (“Daniel”) appeal from a criminal conviction for carrying a concealed weapon or dangerous firearm, entered upon a conditional guilty plea after the district court denied their motions to suppress evidence. We affirm, concluding: (1) law enforcement officers had a reasonable and articulable suspicion to stop the vehicle; (2) the officers’ actions during the vehicle stop were reasonable; (3) a statement Jesse made to law enforcement officers before being given a Miranda warning was not illegally obtained; (4) the search of the vehicle falls within a safety exception to the warrant requirement.

I

[¶ 2] On the evening of February 7, 2005, Gregory Anderson (“Greg”) called Barnes County Deputy Joseph Gress regarding Greg’s brother, Jesse, and Greg’s son, Daniel. When he called Deputy Gress, Greg was in Jamestown, North Dakota. Greg told Deputy Gress he had received a call from Jesse, who was traveling to Fargo, informing Greg of Jesse’s plan to settle some bad drug deals in Fargo. Greg told Deputy Gress he believed Jesse was heavily armed, was wearing a bulletproof vest, and was with Daniel. Deputy Gress testified Greg provided him with the information because Greg was worried about Jesse and Daniel’s safety and Greg wanted Deputy Gress’ help.

[¶ 3] Deputy Gress was familiar with Daniel, Jesse, and Greg through prior investigations as a narcotics officer. Deputy Gress previously had arrested Greg for drug violations. After Greg’s arrest, he began voluntarily providing Deputy Gress with information on drug deals. Deputy Gress testified that Greg was very truthful, except for one occasion when he lied about a neighbor selling drugs.

[IF 4] Deputy Gress knew Jesse was from Kathryn, North Dakota, and Jesse usually drove a green four-door Ford Pickup or an Intrepid. In December 2004, Deputy Gress received information from Jesse’s ex-wife, who believed Jesse had a handgun in the console of his pickup and that he often carried an AK-47 rifle. According to Deputy Gress, she had asked Jesse why he carried weapons and Jesse replied, “In case the law tries to fuck with me!”

[¶ 5] Later on February 7, 2005, Deputy Gress received another call from Greg, informing him that Jesse was at a McDonald’s or a Stop-N-Go convenience store in north Fargo awaiting further directions to the intended target’s residence. Deputy Gress provided the Fargo Police Department with all of his information, and the Fargo Police Department relayed that information to its officers, including Officer Jared Crane.

[¶ 6] Officer Crane observed a green four-door Ford Pickup matching the description of the suspect’s vehicle at a McDonald’s drive-through in north Fargo. Officer Crane ran a license check on the vehicle and determined the pickup was registered to Hjalmer and Laraine Anderson of Kathryn, North Dakota. Based on his corroboration and the information relayed from Deputy Gress to the Fargo Police Department, Officer Crane testified he believed a high-risk stop was necessary for officer safety.

[¶ 7] After other officers arrived at the scene and the suspect’s vehicle had pulled into a parking spot, the vehicle was stopped. Two squad cars blocked the vehicle, and six officers exited their squad cars, positioning themselves around the vehicle with their weapons drawn. Officer Crane instructed the driver, later identified as Jesse, to turn the vehicle off, throw the keys out the window, exit the vehicle, put his hands in the air, and turn around in a 860 degree circle. Officer Crane repeated those commands several times because Jesse was not cooperating. Fargo Police Officer Messmer instructed Jesse to walk backwards toward him. Officer Mess-mer asked Jesse several times to get on his knees, and eventually Jesse complied. Officer Messmer then instructed Jesse to lay on the ground so the officers could handcuff him. Jesse did not cooperate, and eventually Officer Messmer had to physically put Jesse on the ground. Upon placing his hands on Jesse, Officer Mess-mer physically determined Jesse was wearing a bulletproof vest. Officer Mess-mer informed the other officers that Jesse was wearing a bulletproof vest. Once on the ground, Jesse continued to lift his head and chest off the ground, disregarding the officers’ instructions. The officers handcuffed Jesse, but told him he was not under arrest. Jesse was advised he was being detained pending investigation and that he was being handcuffed for officer safety. While handcuffing Jesse, but before giving him a Miranda warning, Officer Crane asked Jesse if he had any weapons. Jesse stated there was a rifle in the truck. Jesse was then placed in the back of a squad car.

[¶ 8] Another officer repeated the same procedure with Daniel, who fully cooperated with the officer’s requests. After officers secured Daniel, Officer Crane testified he was not sure if anyone else was in the vehicle and he asked any other occupants to exit the vehicle. The incident took place at night and the pickup had tinted windows. Officer Crane testified he could not visually determine if anyone else was inside the vehicle. Officer Crane and a second officer approached the passenger side of the vehicle and opened the rear door. Upon opening the door, Officer Crane immediately saw an uncased AK-47 style rifle lying on the floor of the vehicle. He informed the other officers that he had found a weapon. Officer Crane searched the vehicle and seized the rifle, a switch blade, ammunition, a machete, and a 9 millimeter handgun.

[¶ 9] The police took Jesse and Daniel to the police department, where they were given Miranda warnings before making statements. Daniel and Jesse were subsequently charged with carrying a concealed firearm or dangerous weapon in violation of N.D.C.C. § 62.1-04-02. They moved to suppress the evidence seized in the parking lot and Jesse’s statements, claiming the officers’ conduct violated the Fourth and Fifth Amendments of the United States Constitution and N.D. Const, art. I, §§ 8 and 12. The district court denied their motions to suppress, concluding: (1) the officers had a reasonable and articula-ble suspicion to stop the vehicle; (2) the officers’ seizure of Jesse and Daniel was reasonable; (3) a statement by Jesse before he was given a Miranda warning was an officer safety issue and not Fifth Amendment activity; (4) the search of the vehicle was appropriate; and (5) Jesse and Daniel were not under arrest when they were handcuffed and placed in the squad car. Jesse and Daniel conditionally pled guilty to the charge under N.D.R.Crim.P. 11(a)(2), reserving their right to appeal the denial of their motions to suppress.

II

[¶ 10] When reviewing a district court’s denial of a motion to suppress, we defer to the district court’s findings of fact. State v. Kitchen, 1997 ND 241, ¶ 11, 572 N.W.2d 106. We resolve conflicts in testimony in favor of affirmance, because we recognize the district court is in a better position to assess the credibility of witnesses and weigh the evidence. Id. “[A] trial court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court’s findings, and if its decision is not contrary to the manifest weight of the evidence.” Id. Although we defer to the district court’s findings of fact, questions of law are fully reviewable. State v. Linghor, 2004 ND 224, ¶ 3, 690 N.W.2d 201.

III

[¶ 11] Jesse and Daniel argue the police officers did not have a reasonable and articulable suspicion to stop their vehicle. They argue the information the officers received from the informants was not sufficient to establish reasonable suspicion to justify the stop of the vehicle.

[¶ 12] In order to legally stop a vehicle, “an officer must have a reasonable and articulable suspicion that the motorist has violated or is violating the law.” State v. Miller, 510 N.W.2d 638, 640 (N.D.1994). An objective standard is used to determine if an officer has reasonable suspicion to make an investigatory stop. State v. Bryl, 477 N.W.2d 814, 816 (N.D.1991). “‘The question is whether or not 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 criminal activity.’ ” Id. (quoting State v. Lykken, 406 N.W.2d 664, 666 (N.D.1987)). The determination of whether the facts in a case support a reasonable and articulable suspicion is fully reviewable on appeal. State v. Smith, 2005 ND 21, ¶ 11, 691 N.W.2d 203.

[¶ 13] Information from an informant may provide the factual basis to establish reasonable suspicion for an investigatory stop. Miller, 510 N.W.2d at 640. In evaluating the factual basis for an investigatory stop, we must consider the totality of the circumstances, including the quantity, or content, and quality, or degree of reliability, of the officer’s information. Id. “As a general rule, the lesser the quality or reliability of the tip, the greater the quantity of information required to raise a reasonable suspicion.” Id.

[¶ 14] Jesse and Daniel argue the information provided to law enforcement was insufficient to establish a reasonable and articulable suspicion because Greg Anderson is a member of the “criminal milieu” and therefore the information he provided was not reliable.

[¶ 15] A member of the “criminal milieu” is someone “who is himself involved in criminal activity or is, at least, someone who enjoys the confidence of criminals.” State v. Dahl, 440 N.W.2d 716, 718 (N.D.1989). The reliability of an informant who is a member of the “criminal milieu” must be established. Id. Unlike information provided by a citizen informant, the information provided by a member of the criminal milieu is not presumed reliable. Id. Reliability may be established in a number of ways, including corroboration through independent investigation. See State v. Ochoa, 2004 ND 43, ¶ 13, 675 N.W.2d 161. A citizen informant is “ ‘someone who volunteers] information, [does] not want anything in return for the information, and [is] not at risk or in fear of going to jail.’ ” State v. Roth, 2004 ND 23, ¶ 10, 674 N.W.2d 495 (quoting State v. Rangeloff, 1998 ND 135, ¶ 4 n. 3, 580 N.W.2d 593). Information provided by a citizen informant is presumed reliable. Id.

[¶ 16] We conclude it is unnecessary to determine whether Greg is a citizen informant or a member of criminal milieu because it does not influence the outcome of the case. See Trinity Medical Center, Inc. v. Rubbelke, 389 N.W.2d 805, 807 n. 3 (N.D.1986) (unnecessary to address issues that do not influence the outcome of the case).

[¶ 17] Greg’s information has a higher indicia of reliability because he was a known informant who voluntarily gave Deputy Gress information on prior occasions. Deputy Gress testified that, except for the one occasion, Greg was always truthful. The information Greg gave in this case also had a higher indicia of reliability because Greg was in Jamestown and the information involved events in Fargo, which Officer Crane verified. Greg volunteered the information knowing his son, Daniel, could be arrested if law enforcement learned about Jesse and Daniel’s plan. Greg contacted Deputy Gress because he was worried about Jesse and Daniel’s safety and he wanted Deputy Gress’ help. Greg did not ask for anything in exchange for the information, and he was not at risk of going to jail in connection with this incident.

[¶ 18] We also recognize some of the information came from multiple sources, further increasing its reliability. Jesse’s ex-wife is a citizen informant, and the information she provided about Jesse carrying a handgun in his pickup and an AK-47 is presumed reliable. The information Deputy Gress provided is also presumed reliable because it was based on his personal knowledge of Jesse and Daniel.

[¶ 19] Deputy Gress provided his information to the Fargo Police Department, which relayed all the information to the Fargo Police Officers, including Officer Crane. Officer Crane verified that a green four-door Ford Pickup was located at a particular location in north Fargo and that the pickup was registered to someone with the same last name from the same small town as Jesse. Officer Crane corroborated enough information provided by the informants to reasonably believe the vehicle belonged to Jesse and Jesse was involved in criminal activity.

[¶ 20] Under the totality of the circumstances, we conclude the officers had a reasonable and articulable suspicion to justify an investigatory stop of the vehicle.

IV

[¶ 21] Jesse and Daniel argue even if the police officers had a reasonable and articulable suspicion to stop their vehicle, the investigatory stop immediately became an arrest when officers ordered them out of the vehicle at gunpoint, ordered them to lie on the ground, handcuffed them, and placed them in the back of a squad car. They argue the officers did not have probable cause to arrest them and any evidence seized as a result of that unlawful arrest must be suppressed.

[¶ 22] The Fourth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, and N.D. Const, art. 1, § 8 guarantees “[t]he right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” An arrest occurs when “circumstances existed that would have caused a reasonable person to conclude he was under arrest and not free to leave.” State v. Linghor, 2004 ND 224, ¶ 14, 690 N.W.2d 201. A court looks at the totality of the circumstances in determining whether an arrest occurred. Id.

[¶ 23] The existence of an arrest is a question of law, fully reviewable on appeal. City of Wahpeton v. Johnson, 303 N.W.2d 565, 567 (N.D.1981). There is no bright line rule for determining when a seizure becomes a defacto arrest. State v. Heitzmann, 2001 ND 136, ¶ 18, 632 N.W.2d 1. A seizure occurs “whenever an officer stops an individual and restrains his freedom, and that seizure must be reasonable.” Id. at ¶ 9. In determining if a seizure is reasonable, we must “balanc[e] the public interest with the individual’s right to personal security free from arbitrary interference by police officers.” Id. One important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion is the invasion of the individual’s Fourth Amendment interests. Id. at ¶ 18. But we must also consider the law enforcement purposes served by the stop and the time needed to achieve those purposes. Id. Officer safety is a legitimate and weighty interest, which also must be considered when determining if a seizure is reasonable. Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

[¶ 24] In the context of an investigatory stop, this Court has applied a reasonableness balancing test and concluded:

[t]he right to make an investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it, and the test of reasonableness under the Fourth amendment requires careful attention to the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting the seizure or attempting to evade the seizure by flight.

Heitzmann, 2001 ND 136, ¶ 18, 632 N.W.2d 1. It is “unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry v. Ohio, 392 U.S. 1, 23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Officers are entitled to use forcible means “reasonably necessary to protect their personal safety and to maintain the status quo” to achieve the purpose of the stop. United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985).

[¶ 25] The totality of the circumstances in this case lead us to the conclusion the officers took reasonable safety precautions and conducted an investigatory stop rather than a defacto arrest. The police officers had information that Jesse and Daniel were “heavily armed” and on their way to a known drug dealer’s home to settle the score over a bad drug deal. Based on reliable information they received from informants, the officers also believed Jesse was wearing a bulletproof vest and he had weapons for use if he encountered trouble with law enforcement. Under these circumstances, the officers’ fear for their personal safety was reasonable and justified the safety precautions used to remove Jesse and Daniel from the vehicle.

[¶ 26] After Jesse got out of the vehicle, he actively resisted law enforcement, which required Officer Messmer to physically place Jesse on the ground. When Officer Messmer determined Jesse was wearing a bulletproof vest, the officers had verified a significant portion of the information provided to them by the informants. The verified information and the suspect’s non-cooperative nature justified the continued escalation of the safety precautions. Although the intrusion on Jesse’s and Daniel’s personal liberty was significant, it was brief and did not outweigh significant public policy concerns for the safety of police officers and members of the public.

[¶ 27] Other courts have reached a similar conclusion under similar facts, and our application of the Fourth Amendment’s reasonableness standard in this case is consistent with its application in other jurisdictions. See Flowers v. Fiore, 359 F.3d 24, 30 (1st Cir.2004) (officers’ actions in drawing their weapons, using backup officers, handcuffing the suspect and placing the suspect in the back of the squad car, did not amount to a defacto arrest because officers had information that the suspect was armed and a violent crime could soon occur); United States v. Tilmon, 19 F.3d 1221, 1226-28 (7th Cir.1994) (investigatory stop did not evolve into an arrest when officers blocked the suspect’s vehicle, had their weapons drawn, ordered the suspect to exit the vehicle and to lie face down on the shoulder of the road, the suspect was handcuffed and placed in the back of the squad car); United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir.1987) (officers’ actions constituted an investigatory stop rather than an arrest without probable cause when officers stopped a vehicle, ordered the suspects out at gun point, and forced them to lie face down on the wet pavement).

[¶ 28] We conclude the officers seizure of Jesse and Daniel in the parking lot was reasonable and did not amount to a defacto arrest.

V

[¶ 29] Jesse argues the statement he made to Officers Crane and Mess-mer in the McDonald’s parking lot was illegally obtained because the officers had not given him a Miranda warning. He argues the statement was made during a custodial interrogation. Jesse also claims his subsequent statement at the police station was illegally obtained, because any Miranda warning given after the initial statement was ineffective.

[¶ 30] The Fifth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, and N.D. Const, art. 1, § 12 require that “[n]o person shall ... be compelled in any criminal case to be a witness against himself.” Exculpatory or inculpa-tory statements resulting from a custodial interrogation may not be used as evidence against the individual who made the statements unless procedural safeguards, such as a Miranda warning, are used to secure the privilege against self-incrimination. State v. Fasching, 453 N.W.2d 761, 762-63 (N.D.1990). Custodial interrogation is “ ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” State v. Connery, 441 N.W.2d 651, 654 (N.D.1989) (quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).

[¶ 31] Public safety is one exception to the general requirement for a Miranda warning. New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). “[T]he need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” Id. at 657. An officer may question someone in custody without first giving a Miranda warning, if the answer to the question is necessary to secure officer safety or the safety of the public. Id. at 658-59, 104 S.Ct. 2626. The question must not be designed solely to elicit testimonial evidence from the person. Id.

[¶ 32] Before giving Jesse a Miranda warning, Officer Crane testified that he asked Jesse if he had a weapon. Jesse replied that there was a weapon in the vehicle. Officer Crane did hot ask Jesse if he had a weapon for the purpose of collecting evidence; rather, Officer Crane questioned Jesse for purposes of officer and public safety. We conclude Jesse’s statement in the parking lot falls within the public safety exception to Miranda, and is admissible. We further conclude his subsequent statement at the police station after a Miranda warning is also admissible.

VI

[¶ 33] Jesse and Daniel argue the evidence seized during the search of the vehicle should be suppressed because the search was a warrantless search that did not fall within a recognized exception to the warrant requirement.

[¶ 34] The Fourth Amendment of the United States Constitution protects individuals from unreasonable searches and seizures. A warrantless search is unreasonable under the Fourth Amendment unless it falls within a recognized exception to the warrant requirement. State v. Tognotti, 2003 ND 99, ¶ 7, 663 N.W.2d 642. Officer safety is a recognized exception to the warrant requirement. State v. Haverluk, 2000 ND 178, ¶¶ 20-24, 617 N.W.2d 652.

[¶ 35] In this case, a search of the vehicle was necessary to determine if there were other occupants in the vehicle, and therefore was a valid search under the officer safety exception to the warrant requirement. Cf. New York v. Class, 475 U.S. 106, 114-19, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (public safety exception applies to warrantless search of vehicle for VIN); Maryland v. Buie, 494 U.S. 325, 332-35, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (warrantless search of home for individuals when officers have reasonable belief there may be individuals posing a danger to officers); Haverluk, 2000 ND 178, ¶¶ 20-24, 617 N.W.2d 652 (public safety exception and warrantless search of vehicle for weapon).

[¶ 36] In United States v. Stanfield, 109 F.3d 976, 981 (4th Cir.1997), the Fourth Circuit Court of Appeals held that if a vehicle’s heavily tinted windows prevent officers from seeing the interior of the vehicle, an officer may open at least one of the vehicle’s doors and visually inspect the vehicle’s interior to determine if the driver is armed or has access to weapons, or if there are other occupants of the vehicle that may pose a danger to the officers. The court found a contrary holding would be irreconcilable and would undermine case law recognizing the importance of protecting officer safety. Id. (citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)).

[¶ 37] Officer Crane testified that after Jesse and Daniel were ordered out of the vehicle, he could not see inside the pickup to determine if there were any other occupants. The incident occurred at night, and the pickup had tinted windows and sat high off the ground. When the potential danger to officers and the public is weighed against the minor intrusion on the individual’s privacy interest, safety outweighs the individual’s interest. Under these circumstances, Jesse and Daniel’s right to be free from unreasonable search was not infringed when the officers opened the door of the vehicle to determine if there were any other occupants in the vehicle. We conclude the search was reasonable.

[IT 38] Upon opening the door, Officer Crane immediately saw an uncased AK-47 style rifle lying on the floor, in plain view. An uncased rifle of this type is a violation of a Fargo ordinance. Fargo Municipal Code § 10-0304. At that point, the officers had probable cause to arrest Jesse and Daniel and seizure of the evidence was incident to a lawful arrest. See State v. Bartelson, 2005 ND 172, ¶ 17, 704 N.W.2d 824.

VII

[¶ 39] Sufficient evidence supports the district court’s findings, and its decision is not contrary to the manifest weight of the evidence. We conclude the trial court did not err in denying Jesse and Daniel’s motions to suppress, and we affirm the convictions.

[¶ 40] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ, concur.


source: Caselaw Access Project

license: Public Domain

text:
    2006 ND 39
    STATE of North Dakota, Plaintiff and Appellee v. Reed James STEWART, Defendant and Appellant.
    Nos. 20050079, 20050080, 20050081, 20050082, 20050083, 20050084, 20050085, 20050086.
    Supreme Court of North Dakota.
    Feb. 23, 2006.

      Kevin B. Spaeth, Grand Forks, N.D., for defendant and appellant.
    Sarah Elizabeth Cannon, Assistant State’s Attorney, Grafton, N.D., for plaintiff and appellee.
   CROTHERS, Justice.

[¶ 1] Reed James Stewart appeals from criminal judgments entered after a jury found him guilty of felony possession of methamphetamine with intent to distribute, two counts of felony possession of stolen property, two counts of felony possession of drug paraphernalia, two counts of felony possession of prescription drugs with intent to deliver, and misdemeanor possession of drug paraphernalia. We affirm the district court’s judgments.

I

[¶ 2] Stewart was suspected of numerous crimes involving methamphetamine. The district court issued a search warrant after police obtained information from four criminal informants and conducted surveillance on Stewart’s property. All four informants were members of the “criminal milieu,” meaning they are themselves criminals or keep the company of criminals. Surveillance revealed suspicious visits from seven or eight vehicles per night, but no criminal activity was directly observed. The warrant authorized the officers to search Stewart’s home and the interior of his shop, Reed’s Midwest Auto.

[¶ 3] During execution of the search warrant, one officer’s plain sight viewing of two vehicles on Stewart’s property revealed a “Coleman can,” paper towels, and a propane tank with a new valve, all possible instruments in the manufacture of methamphetamine. Inside the shop, another officer saw a number of tools matching the descriptions of those on inventory lists from recent burglaries. Following these observations, officers sought to expand their search and applied by telephone for the second warrant. The district court issued a warrant, authorizing the officers to search Stewart’s auto shop, including approximately 200 “junked” vehicles on his property, for a variety of items not identified specifically, including controlled substances, drug paraphernalia, monies derived from drug transactions, records pertaining to drug trafficking, and stolen property from Walsh and Grand Forks counties.

[¶ 4] During Stewart’s trial, testimony was admitted from a witness concerning his prior dealings with Stewart-involving stolen property. Although Stewart was given a transcript of an interview with the witness, he was not specifically notified of the State’s intent to admit such prior bad acts testimony. He timely objected.

[¶ 5] Stewart argues insufficient probable cause existed to execute the first search warrant, the second search warrant was over-broad and unspecific, and the prior bad acts testimony should have been excluded from trial.

II

[¶ 6] Whether probable cause exists is a question of law. State v. Metzner, 338 N.W.2d 799, 804 (N.D.1983). Whether a search warrant was supported by probable cause is reviewed by this Court using the “totality of the circumstances” approach, making an assessment independent of the trial court’s determination. State v. Hage, 1997 ND 175, ¶ 11, 568 N.W.2d 741. We defer to a magistrate’s determination of probable cause so long as a substantial basis for the conclusion exists, and we resolve doubtful or marginal cases in favor of the magistrate’s determination. State v. Donovan, 2004 ND 201, ¶ 6, 688 N.W.2d 646; State v. Ochoa, 2004 ND 43, ¶ 7, 675 N.W.2d 161; State v. Roth, 2004 ND 23, ¶ 6, 674 N.W.2d 495; State v. Dodson, 2003 ND 187, ¶ 10, 671 N.W.2d 825; State v. Ballweg, 2003 ND 153, ¶ 12, 670 N.W.2d 490.

[¶ 7] Stewart argues the first warrant was not supported by probable cause because the informants, as part of the “criminal milieu,” were inherently unreliable and the police surveillance failed to reveal any criminal activity. We conclude these informants’ reliability was established and their statements, combined with the officers’ surveillance, provided adequate probable cause for the first search warrant to be issued.

[¶ 8] “[T]here would probably be few search warrants issued if the information had to come only from saints.” State v. Dahl, 440 N.W.2d 716, 720 (N.D.1989). However, the reliability of informants within the criminal milieu must be established. See id. at 718. Reliability of an informant can be established numerous ways, such as corroboration through independent investigation, see State v. Ochoa, 2004 ND 43, ¶ 13, 675 N.W.2d 161, by the affiant’s vouching or assertion that the informant is reliable, see State v. Roth, 2004 ND 23, ¶ 15, 674 N.W.2d 495, or by the informant giving detailed information overcoming any doubt, see State v. Holzer, 2003 ND 19, ¶ 14, 656 N.W.2d 686. Here, all four informants gave detailed, firsthand information, much of which was internally corroborated.

' [¶ 9] Additionally, the district court’s consideration of the police officers’ surveillance testimony was reasonable in establishing probable cause. Although the officers did not see any crimes being committed, testimony of suspicious activity is relevant in establishing probable cause because an issuing judge or magistrate may consider “inferences and deductions that a trained and experienced officer makes.” State v. Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861 (quoting State v. Mische, 448 N.W.2d 415, 419 (N.D.1989)).

[¶ 10] Viewing the “totality of the circumstances” and deferring to the district court, we conclude the statements of the criminal informants plus the trained officers’ deductions from the surveillance yielded probable cause for the first search warrant.

Ill

[¶ 11] A search warrant must describe with particularity the places to be searched and items to be seized. N.D. Const, art. I, § 8. Though this requirement is set forth to prevent “exploratory rummaging,” the degree of particularity required remains flexible. State v. Dallmann, 441 N.W.2d 912, 914 (N.D.1989). Whether a warrant is sufficiently particular depends upon the surrounding circumstances, including the purpose of the warrant, the crime involved, the place to be searched, and the nature of the items sought. Id.

[¶ 12] Here, the second warrant was sought to search approximately 200 “junked” vehicles on Stewart’s property after a plain sight viewing of two vehicles revealed items potentially related to the manufacture of methamphetamine. Additionally, after the initial search of Stewart’s shop revealed numerous tools matching the description of some stolen in recent burglaries, officers sought permission to seize such items. Stewart argues the warrant was over-broad in the area it authorized the officers to search — specifically, all vehicles on his property. He also argues the warrant was over-broad in the items it authorized the officers to seize — authorizing seizure of “stolen property from the Walsh and Grand Forks counties” rather than listing specific items.

[¶ 13] Although Stewart is correct that warrants based on what officers “may” find rather than on probable cause are invalid, we do not find that the warrant issued in this case involved such a vague and improper search and seizure authorization.

[¶ 14] The flexible particularity requirement allows an issuing judge or magistrate to consider the circumstances at hand. Dallmann, 441 N.W.2d at 914. Here, the search was of a business premises and vehicles — most “junked” or immobile — located there. There was no risk of confusion over which vehicles were to be searched or whether vehicles would have come and gone in the meantime, as the search under the first warrant was simultaneously occurring. Additionally, although the prohibition on unreasonable searches and seizures extends to business premises, the expectation of privacy on commercial premises is less than the expectation in an individuars home. New York v. Burger, 482 U.S. 691, 699-700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). We find the district court did not err in concluding a search of the entire business premises including the vehicles thereon was reasonable and supported by probable cause.

[¶ 15] Though Stewart is correct that “property stolen from the Walsh and Grand Forks counties” gives no indication to an ignorant party what property is to be seized, we do not find the warrant to be fatally unspecific. The officers here were not ignorant parties. Those seeking the warrant had a detailed list of the stolen property and, in fact, offered to fax the list to the issuing judge. See Dallmann, 441 N.W.2d at 918 (finding when officers have special knowledge concerning the property sought, a lesser likelihood exists that officers would exceed the scope of a search or seize the wrong property). The warrant and its execution, therefore, were reasonable and proper, and we affirm the decision of the district court.

IV

[¶ 16] Rule 404(b), N.D.R.Ev., requires the State to provide notice of its intention to admit prior bad acts testimony. Testimony involving Stewart’s prior dealings with stolen property was admitted at trial without specific, written notice. The State argues its “open file” discovery agreement with Stewart, which included submission of an interview transcript with the witness who ultimately provided the bad acts testimony, constituted notice under Rule 404(b). We reject the suggestion that a clear requirement of “notice” can be satisfied through means such as open file agreements.

[¶ 17] Although the State failed to satisfy the Rule 404(b) notice requirement, error under this rule is subject to a harmless error analysis. State v. Thompson, 552 N.W.2d 386, 390 (N.D.1996). That is, reversal of a conviction is warranted only if the admitted testimony is “so prejudicial that substantial injury occurred” and absent the error “a different decision would have resulted.” Id (quoting State v. Eugene, 536 N.W.2d 692, 696 (N.D.1996)). Ample evidence and testimony existed to support the conclusion that Stewart knew he was dealing with stolen property. Therefore, despite the State’s failure to properly notify Stewart, error was harmless and we affirm the decision of the district court.

V

[¶ 18] The criminal judgments entered by the district court are affirmed.

[¶ 19] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.


author: SANDSTROM, Justice.

text:
    2006 ND 45
    STATE of North Dakota, Plaintiff and Appellee v. Zachary BERGSTROM, Defendant and Appellant.
    No. 20050110.
    Supreme Court of North Dakota.
    Feb. 23, 2006.

      Zachary Bergstrom, pro se, Federal Correctional Institution, Oxford, WI, defendant and appellant; submitted on briefs.
    Cynthia M. Feland, Assistant State’s Attorney, and Sara J. Gerhardt, third-year law student, Bismarck, N.D., for plaintiff and appellee; submitted on briefs.
   SANDSTROM, Justice.

[¶ 1] Zachary Bergstrom appeals from the district court’s amended order on his motion for return of property and the State’s motion for forfeiture of evidence. He argues the property was not forfeita-ble, the district court’s findings are contrary to this Court’s decision in State v. One Black 1989 Cadillac, 522 N.W.2d 457 (N.D.1994), and his due process rights have been violated by the delay between the end of his criminal case and the State’s forfeiture action. The district court’s finding of fact regarding the State!s probable cause to bring this forfeiture action is inadequate to provide this Court with an understanding of the district court’s factual basis used to reach its conclusion. Furthermore, we conclude the district court’s amended order is clearly erroneous, because it is based on incorrect facts. For that reason, we reverse and remand for a new hearing.

I

[¶2] Facts of the underlying criminal case were outlined in State v. Bergstrom, 2004 ND 48, 676 N.W.2d 83. We reiterate the facts pertinent to this appeal. In September 2001, the State charged Bergstrom with possession of marijuana and methamphetamine with intent to deliver, delivery of marijuana and methamphetamine, possession of drug paraphernalia, and possession of a firearm by a felon. The delivery of marijuana and methamphetamine and possession of a firearm by a felon charges were dismissed. Bergstrom was tried for possession of marijuana with intent to deliver, possession of methamphetamine with intent to deliver, and possession of drug paraphernalia. On June 6, 2003, he was acquitted of the possession of marijuana and methamphetamine charges and convicted of the drug paraphernalia charge. On that same day, he appealed the conviction.

[¶ 3] Items seized as evidence in the case included marijuana, methamphetamine, drug paraphernalia, two vehicles and keys, $1,536 in cash,' a television, a VCR, and electronics used for a home security system. On August 20, 2003, only seventy-five days after the district court’s judgment, Bergstrom moved for return of the keys, the $1,536, the television, the VCR, and the home security system. The record does not reflect that he served his motion on the state.

[¶ 4] On February 27, 2004, this Court affirmed the conviction. Bergstrom, 2004 ND 48, 676 N.W.2d 83. On March 22, 2004, this Court’s mandate was entered. Responding to the court’s request for information on the status of the seized property, Assistant State’s Attorney Cynthia Feland wrote the district court on April 20, 2004. She wrote that some property of Bergstrom’s had already been returned to his mother, other property was ready to be picked up, and the Bismarck police would advise Feland on what property remained in its custody. The record does not reflect that a copy of the letter was sent to Berg-strom.

[¶ 5] On April 22, 2004, the district court wrote on Bergstrom’s motion for return of property: “GRANTED. Asst SA Feland said all that remains to be returned is a VCR which the police are attempting to return to Bergstrom’s parents. Robert Wefald 4/22/04.” The record does not reflect that a copy of the order was sent to Bergstrom or the State, nor was it listed in the register of actions.

[¶ 6] On September 16, 2004, the State moved to forfeit the $1,536, the drugs, and drug paraphernalia. The State’s motion mentioned Bergstrom’s motion, but omitted the date. The State’s motion did not mention its April 20, 2004, letter to the court.

[¶ 7] The State’s motion to forfeit the property was 468 days after Bergstrom’s acquittal of possession with intent to deliver, 393 days after his motion to return his property, and 201 days after this Court’s opinion affirming Bergstrom’s paraphernalia conviction. The district court found that the property had already been returned to Bergstrom or his agents, except for the $1,536, the drugs, and the drug paraphernalia. The court then granted the State’s motion to forfeit the $1,536, the drugs, and the drug paraphernalia. It found that the 201-day delay between the opinion affirming the conviction and the motion for forfeiture was justified. In its analysis, the district court used September 8, 2004, not April 20, 2003, as the date of Bergstrom’s motion. It also found:

The Court, having presided over the trial and the reception of evidence, is completely satisfied that the cash seized in the amount of $1,536 was acquired from the proceeds of illegal activities. Although the State was not able to prove to the unanimous satisfaction of the jury that Bergstrom was guilty of other crimes charged in connection with the large quantity of drugs received into evidence, the Court finds there is overwhelming evidence that the cash in the amount of $1,536 is the result of illegal activities, and thus the State’s motion for its forfeiture is GRANTED.

[¶ 8] On appeal, Bergstrom argues the district court erred in granting forfeiture because the $1,536 was earned legally; the district court’s findings are contrary to this Court’s decision in One Black 1989 Cadillac, 522 N.W.2d at 457; and, his due process rights were violated by the 201-day delay. The State argues that the district court properly found the property is forfeitable and that Bergstrom’s due process rights were not violated, because the 201-day delay was justified. In its brief the State says Bergstrom’s motion for return of property was made on September 13, 2004, not on August 20, 2003, as reflected by the register of actions.

[¶ 9] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 19-03.1-36.3 and 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 10] Bergstrom argues forfeiture of the $1,536 is inappropriate because the money was not the proceeds of a criminal drug offense but was earned legally, and, therefore, it is not within the statutory definition of “forfeitable property.” A trial court’s decision on whether an item of property is .forfeitable is a finding of fact that will not be overturned unless it is clearly erroneous. See State v. One 1990 Chevrolet Pickup, 523 N.W.2d 389, 395 (N.D.1994) (whether probable cause exists for the property seizure and whether the preponderance of the evidence supported forfeiture were factual findings for the district court to make); N.D.R.Civ.P. 52 (“[f]indings of fact ... shall not be set aside unless clearly erroneous”). “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made.” Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215 (citation omitted).

[¶ 11] Chapter 29-31.1, N.D.C.C., allows for the forfeiture and disposition of certain seized property related to a criminal offense. A forfeiture action is a civil proceeding and is governed by N.D.C.C. §§ 19-03.1-36.1 through 19-03.1-36.7. N.D.C.C. § 29-31.1-04. “Forfeitable property” includes “[p]roperty that is acquired as or from the proceeds of a criminal offense.” N.D.C.C. § 29-31.1-01(l)(c).

[¶ 12] Forfeiture is a two-stage process. See N.D.C.C. § 19-03.1-36.6; One 1990 Chevrolet Pickup, 523 N.W.2d at 395. The State must first show probable cause exists for the forfeiture action. N.D.C.C. § 19-03.1-36.6; One 1990 Chev-

rolet Pickup, at 394. Probable cause for forfeiture exists when “reasonable grounds exist to believe that the property was ‘probably connected with criminal activity.’ ” One 1990 Chevrolet Pickup, at 394 (quoting State v. Rydberg, 519 N.W.2d 306, 308 (N.D.1994)). The burden then shifts to the claimant to prove the property is not subject to forfeiture. N.D.C.C. § 19-03.1-36.6; One 1990 Chevrolet Pickup, at 394. The claimant’s burden of proof is a preponderance of the evidence. N.D.C.C. § 19-03.1-36.2. Thus, property may be forfeited if it is more probable than not that the property was used in a criminal offense. See One 1990 Chevrolet Pickup, 523 N.W.2d at 395 (the claimant had to prove that his vehicle was not used in a felony, removing it from the vehicle forfeiture provision of § 29-31.1-01(l)(e)).

[¶ 13] .Because forfeiture under chapter 29-31.1 is a separate civil proceeding, apart from any underlying criminal proceeding, the burden of each party does not change when the defendant is acquitted of the criminal charge. Forfeiture is “not dependent upon a prosecution for, or conviction of, a criminal offense.... ” N.D.C.C. § 29-31.1-04(1); see also One 1990 Chevrolet Pickup, 523 N.W.2d at 393 (“neither a criminal charge nor a criminal conviction of a felony is a prerequisite to civil forfeiture of the vehicle used in that felony”); United States v. One Parcel Property Located at 427 and 429 Hall Street, 74 F.3d 1165, 1169 (11th Cir.1996) (“the acquittal, or even non-prosecution, of the owner on criminal charges is irrelevant as to the forfeitability of the property”). North Dakota’s forfeiture statutes are similar to the forfeiture procedures once used in federal court. One 1990 Chevrolet Pickup, 523 N.W.2d at 394 n. 3. The federal and North Dakota statutes both required the government first prove probable cause for the forfeiture action and the burden then shifted to the claimant to prove the property is not subject to forfeiture. Id.; see United States v. U.S. Currency in the Amount of $228,536.00, 895 F.2d 908, 916 (2d Cir.1990) (citing Drug Abuse Prevention and Control Act, 21 U.S.C. § 881 (1988)). Because of the lesser burden of proof in a civil forfeiture action, the government’s probable cause burden was not modified:

“[T]he burden of proof in a criminal trial differs from that involved in a forfeiture action. The government need not prove beyond a reasonable doubt that a substantial connection exists between the forfeited property and the illegal activity;” rather, probable cause is sufficient. Thus, the subsequent acquittal of the claimant on the underlying criminal charges does not mean that the government failed, ipso facto, to meet the more lenient probable cause requirement.

United States v.1988 Oldsmobile Cutlass Supreme 2 Door, 983 F.2d 670, 675 (5th Cir.1993) (footnote and citations omitted) (superseded by CAFRA as discussed in United States v. Melrose East Subdivision, 357 F.3d 493, 501-02 (5th Cir.2004)). Therefore, the jury’s verdict, finding Berg-strom not guilty of the felony drug possession charges and guilty of the misdemean- or drug paraphernalia charge, is irrelevant to the district court’s decision on whether the State had probable cause to bring a forfeiture action.

[¶ 14] The district court may not rely, however, on its prior probable cause determination made when the search warrant was issued. The facts showing probable cause at the pretrial investigative stage of a case may or may not be facts showing probable cause to bring the civil forfeiture. The forfeiture’s probable cause determination must take into account all relevant facts before the court at the time the court considers the forfeiture. For example, a law enforcement officer may have probable cause to arrest a driver the officer believes to be impaired because the driver may show signs of impairment such as dilated eyes, unsteady posture, and slurred speech. After further investigation, however, the State may discover the driver suffers from physical impediments, accounting for the impaired symptoms. The State could no longer claim that it still has probable cause to believe the driver was impaired on the basis of the facts known at the time of arrest. Under that scenario, the facts revealed defeat the probable cause and additional facts would be needed to show the driver was impaired. The State must show that, under the facts as presently before the court, there was probable cause for the forfeiture action. By following the procedure in the Rules of Evidence, judicial notice of facts may be taken, if appropriate. See N.D.R.Ev. 201.

[¶ 15] The district court was required to make specific findings of fact regarding the forfeiture of the $1,536. See N.D.R.Civ.P. 52(a). Rule 52(a) states, in part:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; ... It will be sufficient if the findings of fact and conclusions of law ... appear in an opinion or memorandum .of decision filed by the court.

Findings of fact are adequate if they provide this Court with an understanding of the district court’s factual basis used in reaching its determination. VND, LLC v. Leevers Foods, Inc., 2003 ND 198, ¶ 27, 672 N.W.2d 445. Lack of specificity alone does not make findings of fact erroneous. Id.

[¶ 16] In its amended order, the district court made the following finding and conclusion regarding probable cause:

The Court, having presided over the trial and the reception of evidence, is completely satisfied that the cash seized in the amount of $1,536 was acquired from the proceeds of illegal activities. Although the State was not able to prove to the unanimous satisfaction of the jury that Bergstrom was guilty of other crimes charged in connection with the large quantity of drugs received into evidence, the Court finds there is overwhelming evidence that the cash in the amount of $1,536 is the result of illegal activities, and thus the State’s motion for its forfeiture is GRANTED.

These findings were made after a forfeiture hearing in which Bergstrom appeared from federal prison by telephone. The State’s only offer of proof was the State’s Attorney’s argument that the civil forfeiture was not dependent on a conviction for the drug delivery charges and the $1,536 was proceeds of drug activity. The State requested the district court take judicial notice of the criminal trial and all evidence received at it. Bergstrom argued the State’s forfeiture motion did not comply with summons and complaint notice requirements, denying him due process. He also argued the State’s delay denied him due process. His final argument was the evidence used against him at the criminal trial could not be used again because he was acquitted of the felony charges and convicted of the misdemeanor charges, and a misdemeanor could not support forfeiture. The State argued that whether a defendant was convicted or acquitted and the level of the charge is irrelevant for a forfeiture under N.D.C.C. ch. 29-31.1. Neither party called a witness nor presented evidence. At the hearing, the district court neither granted nor denied the request to take judicial notice of the trial evidence.

[¶ 17] After reviewing the district court’s amended order and the hearing transcript, we conclude the district court’s findings of fact are inadequate to provide an understanding of the district court’s factual basis used to reach its decision to forfeit the $1,536. The findings do not disclose what facts from the criminal trial the district court relied on to conclude that the State had probable cause to bring the forfeiture action. Without this, we cannot properly review, on appeal, the district court’s finding that the State had probable cause to bring the forfeiture action. The district court’s decision is reversed for lack of adequate findings of fact and remanded for a new hearing.

[¶ 18] At the new hearing, the district court may take judicial notice of the evidence received in the criminal trial. Rule 201, N.D.R.Ev., provides, in part:

(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

A district court may take judicial notice of trial evidence the judge heard while presiding over that trial. Santibanez v. Wier McMahon & Co., 105 F.3d 234, 240 (5th Cir.1997) (citing MacMillan Bloedel Ltd. v. Flintkote Co., 760 F.2d 580, 587 (5th Cir.1985)). The court may only take judicial notice of the evidence as presented, and not for the truth of the matters asserted by the evidence. See Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir.1992) (“A court may take judicial notice of a document filed in another court ‘not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.’ ”) (quoting Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.1991)). Because the district judge presided over Bergstrom’s criminal trial, the judge, on remand, may take judicial notice of the evidence presented in the criminal trial. The court must specifically state if it has taken judicial notice of the trial evidence. Berg-strom must be provided with an opportunity to present evidence that the $1,536 was legally obtained. The court must weigh all the evidence, including the evidence for which it takes judicial notice and the evidence Bergstrom presents. After reviewing all the evidence, the district court must then specifically find facts as to whether there is probable cause for the forfeiture action and whether, by a preponderance of the evidence, the $1,536 was proceeds of a criminal offense.

Ill

[¶ 19] Bergstrom argues that the 201-day delay between this Court’s opinion affirming his conviction and the State’s motion to forfeit property violated due process and that the State did not meet its duty to bring a forfeiture action promptly as required by N.D.C.C. § 19-03.1-36(3) and discussed in One Black 1989 Cadillac, 522 N.W.2d 457, 461 (N.D.1994). The district court’s decision of whether the State’s delay in bringing a forfeiture action violated a claimant’s due process rights is a question of fact that will not be reversed unless clearly erroneous. See One Black 1989 Cadillac, 522 N.W.2d at 464 (“[T]he question of whether the State has fulfilled its duty to act promptly is a question of fact.”); N.D.R.Civ.P. 52 (“Findings of fact ... shall not be set aside unless clearly erroneous”).

[¶20] The State moved for forfeiture under N.D.C.C. ch. 29-31.1, not § 19-03.1-36. In State v. Koble, we held the prompt-, ness requirement of § 19-03.1-36(3) does not apply to a chapter 29-31.1 forfeiture. 2000 ND 29, ¶ 9, 606 N.W.2d 521. Therefore, Bergstrom’s reliance on N.D.C.C. § 19-03.1-36(3) and our discussion of it in One Black 1989 Cadillac is misplaced. A forfeiture under chapter 29-31.1 does have due process protections against undue delay, however. See Koble, at ¶ 12.

[¶ 21] In One Black 1989 Cadillac, this Court held the United States Supreme Court’s speedy trial test adopted in Barker v. Wingo is the appropriate standard to decide whether a state forfeiture has violated the claimant’s due process rights. One Black 1989 Cadillac, 522 N.W.2d at 464 (discussing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). One Black 1989 Cadillac followed the United States Supreme Court’s decision in United States v. $8,850, holding the Barker test applied in deciding whether a claimant’s due process rights had been violated by a delay in the forfeiture. 461 U.S. 555, 564, 103 S.Ct. 2005, .76 L.Ed.2d 143 (1983). The Barker test involves balancing four factors: “length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182). Under the Barker test, no single factor- is determinative, and all relevant facts must be considered. One Black 1989 Cadillac, 522 N.W.2d at 464.

[¶ 22] The first factor to consider is . the length of the delay, which the Supreme Court has called the “overarching factor.” $8,850, 461 U.S. at 565, 103 S.Ct. 2005. There is no bright line as to when delay becomes unreasonable and violates a claimant’s due process rights. Id. Section 29-31.1-08, N.D.C.C., requires the State retain forfeitable property that is evidence in a criminal proceeding until it is no longer needed in that -proceeding. A criminal proceeding does not toll consideration of due process, but it may justify a delay. Koble, 2000 ND 29, ¶ 12, 606 N.W.2d 521 (citing In re Search Warrants, 117 F.R.D. 591, 594 (W.D.Mich.1987); United States v. $19,440.00 in U.S. Currency, 829 F.Supp. 303, 305 (D.Alaska 1993)).

[¶ 23] The second and closely-related factor is the State’s reason for the delay. $8,850, 461 U.S. at 565, 103 S.Ct. 2005. “The Government must be allowed some time to decide whether to institute forfeiture proceedings.” Id. An underlying criminal case can justify a forfeiture delay, because the property may be evidence in the criminal case or the civil forfeiture action could hamper the government’s prosecution. Id. at 567, 103 S.Ct. 2005; Koble, 2000 ND 29, ¶ 12, 606 N.W.2d 521.

[¶ 24] The third factor is “the claimant’s assertion oí the right to a judicial hearing.” $8,850, 461 U.S. at 568-69, 103 S.Ct. 2005. A claimant has some ability to speed up the forfeiture process, such as, for example, requesting a court order compelling a forfeiture or filing a motion for return of property. Id. at 569, 103 S.Ct. 2005. The failure of a claimant to assert his right is an indication that the claimant did not want an early judicial hearing. Id.

[¶ 25] The final factor to weigh is whether the claimant has been prejudiced by the delay. $8,850, 461 U.S. at 569, 103 S.Ct. 2005. “The primary inquiry here is whether the. delay has hampered the claimant in presenting a defense on the merits, through, for example, the loss of witnesses or other important evidence.” Id. The claimant may also show prejudice by showing the State’s seizure deprived him of his ownership right to the property. One Black 1989 Cadillac, 522 N.W.2d at 465.

[If 26] After reviewing the record, we conclude the district court clearly erred in its due process analysis. First, the delay argued by both parties is 201 days, the time between our opinion affirming Bergstrom’s conviction and the State’s motion of forfeiture. The State needed to retain Bergstrom’s property as evidence until the relevant criminal matters were completed. This Court affirmed Berg-strom’s conviction for possession of drug paraphernalia on February 27, 2004. State v. Bergstrom, 2004 ND 48, 676 N.W.2d 83. The $1,536, however, would not be evidence in a retrial for possession of drug paraphernalia. The $1,536 could have been evidence of possession of a controlled substance with intent to deliver, the charges of which Bergstrom was acquitted. Therefore, the delay clock began when he was acquitted on June 5, 2003. The district court analyzed a much shorter delay.

[¶ 27] Second, in its amended order forfeiting the $1,536, the district court stated, “On September 8, 2004, Bergstrom filed his Motion for Return of Property.” The State, however, in its brief and appendix, claims Bergstrom moved for return of his property on September 13, 2004. The date-stamp placed on Bergstrom’s motion, which was then entered into the record, shows the motion was received and filed on August 20, 2003, over a year before either the court or the State contend the motion was filed. According to the register of actions, nothing was filed between April 23, 2004, when the State filed a letter updating the court on the status of Berg-strom’s seized property, and September 13, 2004, when the district court released the trial evidence to the State. The record is unclear as to whether Bergstrom served a copy of his motion for return of property on the State. The district court, however, still used the wrong date in its due-process analysis. The correct date of Bergstrom’s motion is important to weighing the third factor of Bergstrom’s conduct in pursuing prompt action. The court’s finding that Bergstrom moved for return of his property on September 8, 2004, is clearly erroneous.

[¶ 28] Finally, and perhaps most puzzling, is the State’s April 20, 2004, letter to the district court informing the court of the status of the seized property and the handwritten order the court wrote on Bergstrom’s motion for return of property. The State’s letter informed the court Bergstrom’s vehicles and some other personal property had been released to Berg-strom’s mother. It also stated Berg-strom’s mother still had to pick up some other personal items. The court’s handwritten order read, “GRANTED. Asst SA Feland said all that remains to be returned is a VCR which the police are attempting to return to Bergstrom’s parents. Robert Wefald 4/22/04.” This notation is incorrect, because the $1,536 had not been returned to Bergstrom despite his request for its return. Therefore, we are left with a definite and firm conviction that a mistake has been made and hold the district court’s amended order is clearly erroneous.

rv

[¶29] We reverse and remand for a new hearing consistent with this opinion.

[¶ 30] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

      . In 2000, Congress passed the Civil Asset Forfeiture Reform Act C'CAFRA”) ”[t]o provide a more just and uniform procedure for Federal civil forfeitures, and for other purposes.” Civil Asset Forfeiture Reform Act of 2000, Pub.L. No. 106-185 (2000). CAFRA changed the burden of proof for federal forfeiture actions. Now, the government has the burden to prove by a preponderance of evidence that the property is subject to forfeiture. 18 U.S.C. 983(c)(1) (2000). The former probable cause, preponderance-of-the-evidence, burden shifting approach has been superseded. See United States v. Melrose East Subdivision, 357 F.3d 493, 501-02 (5th Cir.2004) (discussing the effect of CAFRA on federal civil forfeiture actions).


author: KAPSNER, Justice.

text:
    2006 ND 46
    Meryem M. BERGE, Plaintiff and Appellant v. Mark A. BERGE, Defendant and Appellee.
    No. 20050124.
    Supreme Court of North Dakota.
    Feb. 23, 2006.

      Christopher M. McShane (argued), third-year law student, Duane R. Breitling (appeared), Ohnstad Twichell, P.C., Fargo, N.D., and Mark Samuel Douglas (appeared), Child Support Enforcement Unit, Jamestown, N.D., for plaintiff and appellant.
    Erin M- Conroy, Jeffries, Olson & Flom, PA, Fargo, N.D., for defendant and appel-lee.
   KAPSNER, Justice.

[¶ 1] Meryem M. Berge appealed from an amended judgment setting Mark A. Berge’s child support obligation at $572 per month. We conclude the trial court erred as a matter of law in calculating Mark Berge’s child support obligation, and we reverse and remand for recalculation of his net income accompanied by an explanation of how the court determined the amount.

I

[¶ 2] • The parties married in 1981 and divorced in 1999. During the marriage, Mark Berge farmed near Litchville. At the time of the divorce, the trial court adopted the parties’ stipulation and property settlement agreement, awarded Mer-yem Berge custody of the couples’ two minor children, and ordered Mark Berge to pay Meryem Berge $526 per month in child support. The divorce decree awarded Mark Berge the farmland to allow him to continue the farming operation and ordered Mark Berge to pay Meryem Berge $150,000 “[t]o equalize the distribution of the marital estate.” To pay the funds to Meryem Berge, Mark Berge increased his mortgage on the farmland.

[¶ 3] In 2001 Mark Berge found employment in Valley City, sold some of his farmland, and decided to farm only one quarter section of his land, renting the remainder of the land to others. In 2002 Mark Berge decided to discontinue his farming operation and began working full-time as a contractor for Pipeline Services of Iowa, an affiliate of Alliance Pipeline. He sold all of his farm equipment at an auction to lessen his debt load. As a result of these transactions, Mark Berge’s 2001 and 2002 tax returns reflected large capital gains. Mark Berge continues to own 850 acres of farmland that he rents to others.

[¶ 4] In July 2004 Meryem Berge moved to modify Mark Berge’s child support obligation under N.D.C.C. § 14-09-08.4 for the minor child who remained in her custody. At the September 2004 hearing on the motion,- Mark Berge’s tax returns for tax years 1999 through 2003, recent employee pay stubs, and child support guidelines worksheets were submitted. Following the hearing, Mark Berge’s attorney sent the court a letter dated September 24, 2004, attempting to distinguish caselaw relied upon by Meryem Berge and setting forth Mark Berge’s farm rental income from 1999 through 2003. The letter was accompanied by a pay stub and correspondence from Mark Berge’s employer, and two sets of child support guidelines worksheets. In one set of worksheets, Mark Berge’s child support obligation is calculated to be $572 per month using a three-year average of his self-employment income, and in the other set of worksheets Mark Berge’s obligation is calculated to be $540 per month using a five-year average of his self-employment income. These calculations apparently excluded the capital gains from Mark Berge’s sale of farmland and equipment reflected in his 2001 and 2002 tax returns. In correspondence to the court dated September 17, 2004, Mer-yem Berge submitted a child support guidelines worksheet that apparently included Mark Berge’s capital gains and used a five-year average of all of his income. Under Meryem Berge’s calculations, Mark Berge’s child support obligation was $942 per month.

[¶ 5] The trial court issued a memorandum decision in January 2005 stating:

The above captioned matter came before this Court pursuant to the Plaintiffs Motion to Modify Judgment. All the information has now been received by the Court. The Court appreciates the parties’ patienfce] and determines that the appropriate support based upon the Defendant’s calculations, as submitted with counsel’s letter September 24, 2004, is $572.00 per month, which is retroactive to the month of August, 2004. The Motion was made on July 28, 2004. Counsel for the Plaintiff (IV-D Unit) shall prepare the appropriate Judgment papers consistent with this Memorandum Opinion.

Meryem Berge appealed.

II

[¶ 6] Meryem Berge argues the trial court erred in computing the child support obligation because the court did , not include capital gain income Mark Berge received when he sold the farmland and the farm equipment. She contends the court should have combined the capital gain income with wages he earned and rental income he received from the farmland and averaged that amount over a longer period of years to account for fluctuations in his income. In the alternative, Meryem Berge argues if Mark Berge’s entire income is not averaged, the child support obligation should be based on his most recent earnings for a full one-year period. Meryem Berge also argues the trial court’s decision should be reversed because the court failed to adequately explain how the child support obligation was calculated.

[¶ 7] Child support determinations involve questions of law which are subject to a de novo standard of review, findings of fact which are subject to a clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to an abuse-of-discretion standard of review. Bladow v. Bladow, 2005 ND 142, ¶ 19, 701 N.W.2d 903 (citing Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215). Resolution of the issues raised by Meryem Berge is hampered by the cryptic nature of the trial court’s decision.

[¶ 8] Under N.D. Admin. Code § 75-02.04.1-02(10), “[e]ach child support order must include a statement of the net income of the obligor used to determine the child support obligation, and how that net income was determined.” Because a proper finding of net income is essential to determine the correct amount of child support under the child support guidelines, we have said that, as a matter of law, a trial court must clearly set forth how it arrived at the amount of income and the level of support. See, e.g., Bladow, 2005 ND 142, ¶ 19, 701 N.W.2d 903; Olson v. Olson, 2002 ND 30, ¶ 12, 639 N.W.2d 701; Heinz v. Heinz, 2001 ND 147, ¶ 17, 632 N.W.2d 443; Lauer v. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450; Buchholz v. Buchholz, 1999 ND 36, ¶ 12, 590 N.W.2d 215; Berg v. Ullman ex rel. Ullman, 1998 ND 74, ¶ 18, 576 N.W.2d 218. When a trial court does not clearly state how it calculated the amount of child support, this Court will reverse and remand for an explanation even if the record contains adequate evidence for the trial court to make a precise finding. See Buchholz, at ¶¶ 12, 17; Wolf v. Wolf, 557 N.W.2d 742, 744 (N.D.1996); see also Heley v. Heley, 506 N.W.2d 715, 721 (N.D.1993) (“A mere recitation that the guidelines have been considered in arriving at the amount of a child support obligation is insufficient to show compliance with the guidelines”); Spilovoy v. Spilovoy, 488 N.W.2d 873, 877 (N.D.1992) (same).

[¶ 9] The trial court in this case did not clearly state in its memorandum opinion how it calculated Mark Berge’s child support obligation. The court simply adopted Mark Berge’s calculations contained in one of the child support guidelines worksheets he provided to the court. The worksheets contain no explanation of how the various figures were calculated, what evidence supports their inclusion in the calculations, or what evidence supports the exclusion of other income. We conclude the trial court erred as a matter of law in setting Mark Berge’s child support obligation, and we remand for the court to make the factual findings necessary to support a child support award.

Ill

[¶ 10] We briefly address other issues raised which are likely to arise again on remand.

A

[¶ 11] One troubling aspect about the trial court’s adoption of Mark Berge’s calculations is that he totally excluded his capital gain income from the sale of farmland in 2001 and from the sale of his farm equipment in 2002.

[¶ 12] “Income” for child support purposes is broadly defined in N.D.C.C. § 14-09-09.10(9) as:

any form of payment, regardless of source, owed to an obligor, including any earned, unearned, taxable or nontaxable income, workforce safety and insurance benefits, disability benefits, unemployment compensation benefits, annuity and retirement benefits, but excluding public assistance benefits administered under state law.

Examples of “gross income” listed in N.D. Admin. Code § 75-02-04 .1 — 01(5)(b) include “gains.” Support must be calculated on the obligor’s “net income,” which is “total gross annual income less” the exclusions allowed under N.D. Admin Code § 75-02-04.1-01(7). The child support guideline’s definition of income is very broad and is intended to include any form of payment to an obligor, regardless of source, which is not specifically excluded under the guidelines. Cook v. Eggers, 1999 ND 97, ¶ 9, 593 N.W.2d 781.

[¶ 13] Under the child support guideline’s all-inclusive definition of gross income, this Court has consistently held that nonrecurrent payments are includable in an obligor’s income for determining child support. In Otterson v. Otterson, 1997 ND 232, ¶ 20, 571 N.W.2d 648, we held that proceeds from a personal injury settlement must be considered in calculating the obligor’s income for child support purposes. In Longtine v. Yeado, 1997 ND 166, ¶ 9, 567 N.W.2d 819, we concluded that profits from an auction sale of farm machinery and the capital gain from insurance proceeds from a fire that destroyed the parties’ former homestead must be considered in determining the obligor’s child support income. In Helbling v. Helbling, 541 N.W.2d 443, 447 (N.D.1995), this Court concluded that excess reimbursed relocation expenses paid by the obligor’s employer must also be considered under the broad definition of gross income contained in the child support guidelines. As we said in Otterson, at ¶ 17, the “guidelines do not authorize a deduction for nonrecur-rent payments, and our law and public policy dictate that children should share in the obligor’s receipt of such payments.”

[¶ 14] Mark Berge argues Helbling is no longer valid law because it was decided under'the 1991 version of the child support guidelines, and the “guidelines were revised in 1995 and 2008 since the Helbling decision to reflect the legislature’s consideration of the issue of non-recurrent payments.” We acknowledge that the guidelines were amended in 1995, 1999, and 2008, but Mark Berge has not directed our attention to any new or altered guidelines that address nonrecurrent payments, and we have found none. “Gross income” continues to be broadly defined under the current version of the guidelines as including “gains.” N.D. Admin. Code § 75-02-04.1 — 01(5)(b). Nonrecurrent payments still are not listed as excludáble under N.D. Admin. Code § 75-02-04.1-01(7).

[¶ 15] To the extent Mark Berge is relying on N.D. Admin. Code § 75-02-04.1-02(8), we discussed this provision in Longtine, 1997 ND 166, ¶ 11, 567 N.W.2d 819. Section 75-02-04.1-02(8), N.D. Admin. Code, was adopted in 1995 to provide:

8. Calculations made under this chapter are ordinarily based upon recent past circumstances because past circumstances are typically a reliable indicator of future circumstances, particularly circumstances concerning income. If circumstances that materially affect the child support obligation are very likely.to change in the near future, consideration may be given to the likely future circumstances.

In Longtine, at ¶ 12, a majority of this Court construed N.D. Admin. Code § 75-02-04.1-02(8) to not require a different result than in Helbling for the treatment .of nonrecurrent income. The referee in Longtine, at ¶4, had included the capital gain and profit from the auction sale, less a debt repayment on a depreciable asset from the auction 'proceeds, in the child support determination and increased the obligor’s child support based on the nonre-current income for only a twelve-month period. The majority of the Court held the “referee recognized the ‘likely future circumstances’ that those • proceeds were nonrecurring and increased Longtine’s child support obligation for one year to provide his children with a benefit from those proceeds.” Id. at ¶ 13.

[¶ 16] It is unclear why the trial court excluded the 2001 and 2002 capital gains from the computation of Mark Berge’s child support obligation. Neither the child support guidelines nor this Court’s precedents allow nonrecurrent payments to be simply ignored in determining an obligor’s child support obligation.

B

' [¶ 17] The trial court apparently based Mark Berge’s annual income from employment on a mid-year pay stub rather than o'n his employment income reflected on his 2003 tax return.

[¶ 18] In Korynta v. Korynta, 2006 ND 17, ¶¶ 17-18, 708 N.W.2d 895, we concluded that the trial court misapplied the law in calculating the obligor’s child support obligation by extrapolating income , based on a recent pay stub for only a six-month period, where the record contained the obligor’s tax returns for the prior four years and the trial court provided no reasons for its extrapolation of income. We held, “unless the trial court makes a determination that evidence of an obligor’s recent past circumstances is not a reliable indicator of his future circumstances, the trial court must not extrapolate an obli-gor’s income under N.D. Admin. Code § 75-02-04.1-02(8).” Korynta, at ¶ 17. See also Helbling, 541 N.W.2d at 448 (trial court erred in calculating an obligor’s child support based on a pay stub reflecting only eight months of employment income by extrapolating that amount into a twelve-month figure where there was evidence in the record showing the obligor’s total income for the prior year); Brandner v. Brandner, 2005 ND 111, ¶ 18, 698 N.W.2d 259 (because N.D. Admin. Code § 75-02-04.1-07(9) requires a court to calculate imputed income based on the obli-gor’s actual income in a prior twelvemonth period, a court cannot use income earned during less than the twelve-month period and extrapolate that to a twelvemonth period); Christoffersen v. Giese, 2005 ND 17, ¶ 8, 691 N.W.2d 195 (same); Logan v. Bush, 2000 ND 203, ¶ 21, 621 N.W.2d 314 (same). Section 75-02-04.1-02(6), N.D. Admin. Code, has not been changed since Helbling was decided.

[¶ 19] It is improper to calculate an obligor’s annual employment income based on a mid-year pay stub when, as here, the obligor’s employment income is reflected on the prior year’s tax return.

C

[¶ 20] Mark Berge argued that his farm rental income should be based on a three-year average of rental income rather than a five-year average, and the court apparently used the three-year average when it adopted Mark Berge’s child support guidelines worksheet.

[¶ 21] “Self-employment” includes “any activity that generates income from rental property.” N.D. Admin. Code § 75-02-04.1-01(10). Section 75-02-04.1-05(4), N.D. Admin. Code, provides:

4. Self-employment activities may experience significant changes in production and income over time. To the extent that information is reasonably. available, the average of the most recent five years of each self-employment activity, if undertaken on a substantially similar scale, must be used to determine self-employment income. When self-employment activity has not been operated on a substantially similar scale for five years, a shorter period may be used.

Meryem Berge argued the trial court should not have averaged the self-employment income alone because Mark Berge currently owns 850 acres of farmland that he rents for $40 per acre and, therefore, the rental is not subject to fluctuation. If an obligor’s most recent annual earnings are a more “reliable indicator of future circumstances,” N.D. Admin. Code § 75-02-04.1-02(8), the most recent annual earnings may be used to calculate a child support obligation. See Mahoney v. Mahoney, 1997 ND 149, ¶ 19, 567 N.W.2d 206. Meryem Berge also argued the court should have averaged all of Mark Berge’s income on a three-year or five-year basis because this would provide a more accurate basis for assessing his future earnings. The trial court must disclose its reasons for choosing one method over another.

IV

[¶ 22]. We reverse the amended judgment and remand for recalculation of Mark Berge’s net income accompanied by an explanation of how the court determined the amount.

[¶ 23] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.


author: MARING, Justice.

text:
    2006 ND 42
    WARD COUNTY FARM BUREAU, a North Dakota Non-Profit Corporation, and Jim Lee, Plaintiffs and Appellants v. Jim POOLMAN, Insurance Commissioner for the State of North Dakota, in his official capacity and personally, and State of North Dakota, by and through its Insurance Commissioner, Defendant and Appellee.
    No. 20050170.
    Supreme Court of North Dakota.
    Feb. 23, 2006.
    Lynn M. Boughey, Boughey Law Firm, Minot, ND, for plaintiffs and appellants.
    Douglas A. Bahr, Solicitor General, Office of Attorney General, Bismarck, ND, for defendant and appellee.
   MARING, Justice.

[¶ 1] The Ward County Farm Bureau and Jim Lee (“Bureau”) appealed from a district court judgment denying their request for a writ of mandamus ordering the Insurance Commissioner to direct the board of directors of Nodak Mutual Insurance Company (“Nodak”) to .implement recommendations contained in a prior order issued by the . Commissioner lifting administrative supervision over Nodak. We conclude the trial court properly denied the writ because the Bureau has no clear legal right to the relief it seeks, and we affirm.

I

[¶ 2] Nodak is an insurance company serving more than 26,000 policyholders. The Bureau is a non-profit corporation consisting of about 1,200 members and most of the members carry insurance policies with Nodak. On September 23, 2002, the Commissioner placed Nodak under administrative supervision after receiving a letter from corporate officers who expressed management concerns. See Nodak Mut. Ins. Co. v. Ward County Farm Bureau, 2004 ND 60, ¶ 3, 676 N.W.2d 752. The Bureau objected to a change in No-dak’s bylaws concerning nominations for the board of directors. Nodak proposed forming a nominating committee to screen nominations for directors rather than allowing policyholders to nominate candidates for the board of directors.

[¶ 3] On May 15, 2003, a market conduct examiner appointed by the Commissioner under N.D.C.C. § 26.1-03-19.2 reported that the proposed changes to Nodak’s bylaws did not allow “for multiple candidates for the same Board seat,” and a “more reasonable approach would be for a person who wanted to run for a Board of Directors opening to become eligible by presenting a petition signed by a specified number of policyholders” because “[t]his would provide for multiple candidates for the open Board seat to be voted on at the next annual meeting.” The market conduct examiner recommended that Nodak’s “Board should review the Bylaw provisions relating to nominations for candidates for the Board of Directors to allow ■ policyholders to vote for multiple candidates for an open Board seat.”

[¶ 4] On June 2, 2003, the Commissioner adopted the market conduct examination report and ordered that Nodak “comply with all of the examiner’s recommendations listed in the examination report insofar as they relate to a specific statutory requirement.” On July 29, 2003, the Commissioner lifted the order placing Nodak under administrative supervision and ordered that “[t]he new Board will review its Bylaw relating to the nominations for candidates for the Board of Directors to allow policyholders to vote for multiple. candidates for an open Board seat.” Nodak subsequently reported to the Commissioner that it had accomplished a “full review” of its bylaws and articles, but Nodak did not change its bylaws to allow direct nomination of directors by shareholders and to allow multiple candidates for open-board positions. Nodak reported:

A full review of all Bylaws and Articles has now been accomplished. Recommended changes will be the subject of a new proxy in 2004. This Board of Directors will have its first experience with the nominating procedure set forth in the Nodak Mutual Insurance Company Bylaws in the annual meeting to be held in 2004. This will also give the Board insight and opportunity to appropriately assess whether or not any amendment is necessary or appropriate to the bylaw provision relating to nominations for candidates to the Board of Directors.

[¶ 5] In October 2004, the Bureau and Lee, a policyholder nominated for a board seat by the president of the Bureau, sought a writ of mandamus requesting the district court to order the Commissioner to:

require the enforcement of his [July 29, 2003] order and direct the Nodak board of directors to immediately implement the recommendations accepted by the company and ordered by the commissioner by changing its bylaws to lessen the time frame for the submission of nominations to the nominating committee, to require multiple candidates for the same board seat, and to allow a person to become eligible to run for a board of director position by presenting a petition signed by a specified number of policyholders (for example: 100).

The district court granted the Commissioner’s motion to dismiss the request for a writ of mandamus because the Commissioner’s order instructed Nodak only to “review” its bylaws on nominations for candidates for the board of directors and because a writ was not the only plain, speedy, or adequate remedy in the law.

II

[¶ 6] The Bureau argues that the district court erred in refusing to issue a writ of mandamus.

[¶7] Section 32-34-01, N.D.C.C., governs issuance of writs of mandamus and provides:

The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is precluded unlawfully by such inferior tribunal, corporation, board, or person.

[¶ 8] It is well established that a petitioner for a writ of mandamus must first demonstrate a clear legal right to performance of the particular act sought to be compelled by the writ. See, e.g., Edinger v. Governing Authority of Stutsman County Corr. Ctr. and Law Enforcement Ctr., 2005 ND 79, ¶ 8, 695 N.W.2d 447; Kouba v. Hoeven, 2004 ND 185, ¶ 5, 687 N.W.2d 491. Issuance of a writ of mandamus is left to the sound discretion of the district court. Edinger, at ¶ 8; Kouba, at ¶ 5. A district court abuses its discretion if it acts in an arbitrary, unreasonable, or capricious manner, or if it misapplies or misinterprets the law. Edinger, at ¶ 8; Kouba, at ¶ 5.

[¶ 9] The act the Bureau seeks to be compelled by the writ is implementation of the recommendations of the market conduct examiner relating to nominations for candidates for the board of directors. However, as the district court ruled, the Commissioner’s order did not mandate that Nodak adopt those recommendations, but only required that the recommendation be “reviewed]” by the board. “Review” means “to examine or study again ... to go over or examine critically or deliberately.” Merriam-Webster’s Collegiate Dictionary 1067 (11th ed. 2003). The record shows that Nodak reviewed the recommendation. The Bureau does not cite, nor have we found, any authority requiring nomination of directors by shareholders or multiple candidates for open board positions. Contrary to the Bureau’s argument, the Commissioner’s order cannot be fairly characterized as requiring that No-dak adopt the market conduct examiner’s recommendations, even if we assume that the Commissioner has the authority to so order.

[¶ 10] We conclude the Bureau has not shown a clear legal right to performance of the act sought to be compelled by the writ, and therefore, the district court did not abuse its discretion in dismissing the mandamus action.

Ill

[¶ 11] It is unnecessary to address the other issues raised by the parties. The judgment is affirmed.

[¶ 12] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.