author: KAPSNER, Justice. VANDE WALLE, Chief Justice,

text:
    2004 ND 158
    Gary A. FICEK and Rhonda K. Ficek, Plaintiffs and Appellees v. James P. MORKEN and Carol C. Morken, Defendants and The City of Fargo, Defendant and Appellant.
    No. 20030295.
    Supreme Court of North Dakota.
    Aug. 4, 2004.
    Ronald H. McLean (argued) and Timothy G. Richard (appeared), Serkland Law Firm, Fargo, ND, for plaintiffs and appel-lees.

      Patricia Ann Roscoe, Assistant City Attorney (argued), and Garylle B. Stewart, City Attorney (appeared), Solberg Stewart Miller and Tjon, Fargo, ND, for defendant and appellant.
    Jerald A. Hjelmstad, North Dakota League of Cities, Bismarck, ND, for ami-cus curiae.
    David L. deCourcy, Falls Church, VA, and Garylle B. Stewart, City Attorney, Solberg Stewart Miller and Tjon, Fargo, ND, for amicus curiae International Code Council.
   KAPSNER, Justice.

[¶ 1] The City of Fargo appealed from a judgment entered on a jury verdict awarding Gary A. Ficek and Rhonda K. Ficek $107,000 plus costs and disbursements in the Ficeks’ action against James P. Morken, Carol C. Morken, and the City. We reject the City’s invitation to adopt the public duty doctrine because it is incompatible with North Dakota law, and we conclude the district court did not err in instructing the jury that the City had a duty to properly inspect the construction of the Ficeks’ residence and to enforce the building codes at the time the house was constructed. We affirm.

I

[¶2] In 1988 the Morkens began constructing a two-story addition to their home at 1831 Third Street North in Fargo. On June 27, 1988, the City issued the Morkens a building permit listing them as the “Contractor,” and James Morken performed much of the construction work by himself, including forming and pouring a new foundation. During the approximately two-year period it took to complete the house, the City’s building inspectors visited and inspected the house more than 40 times for compliance with the building code. On July 10, 1990, the City issued the Morkens a certificate of occupancy, certifying that the building met applicable building codes.

[¶ 3] The Ficeks purchased the house from the Morkens in May 1996, and as time passed, the Ficeks noticed problems with the home’s construction. Experts inspected the home and determined it does not comply with the City’s building code in several respects. The natural gas piping did not meet code requirements. Windows and roof vents were installed without proper flashing, siding had not been installed and sealed properly, and no vapor barrier existed in most of the interior walls, causing water leaks and condensation to form. The structural supports in the house were significantly overloaded and the house foundation did not have adequate frost depth footings. The structure was built on uncontrolled fill, causing the house to heave and settle in different directions and damaging the structure. In April 2002, a structural engineer advised the Ficeks to either fix the foundation of the house immediately or vacate the residence.

[¶ 4] The Ficeks brought this action against the Morkens and the City, asserting the City “owed a duty to ensure that all buildings are constructed according to relevant building codes and to properly inspect buildings under construction to ensure the builder is following all relevant building codes,” and the City “breached its duty by negligently inspecting and approving the construction of the foundation of the subject residence, as said foundation does not meet the required building code.” The Ficeks asserted the Morkens had committed constructive and actual fraud, breach of warranty, negligence, and consumer fraud. The Ficeks also sought equitable rescission and punitive damages from the Morkens.

[¶ 5] During the trial, the City requested the following instruction based on the public duty doctrine:

MUNICIPAL BUILDING INSPECTION
A municipality has the power, granted to it by law, to provide for the inspection of all building construction within the limits of the municipality.
Duty of Municipality
Building codes, building permits, and building inspections are devices for the protection of the general public and are not for the specific benefit of an individual. The issuance of a building permit does not make a municipality an insurer against defective construction. Unless there is a special relationship between the plaintiffs and the municipality, the municipality owes no duty of care to insure compliance with the building code.
A special relationship requires that there be direct contact or privity with the public building official who, in response to a specific inquiry, represented that the building complied with the building code, coupled with reasonable reliance on that representation by the plaintiff.

Instead, the district court gave the jury an instruction fashioned after the Ficeks’ requested instruction based on Tom Beuchler Constr., Inc. v. City of Williston, 392 N.W.2d 403 (N.D.1986):

NEGLIGENT

INSPECTIONS/APPROVAL — CITY OF FARGO

The City of Fargo owed a duty to the Ficeks and any other purchaser to properly inspect the construction of the house in this case and to enforce the building codes in force at the time the house was constructed. Because the City can only act through its employees, the City is liable for the negligence of its employees William Eide and Ronald Strand. The City of Fargo is liable for all damages proximately caused by its employees’ negligent inspection and approval of the construction of the house as being in compliance with applicable building codes.

[¶ 6] During closing arguments to the jury, the attorney for the City conceded the City was negligent but argued its negligence was not the proximate cause of the Ficeks’ damages. The jury found in favor of the Ficeks on all claims. The jury found the Morkens and the City each 50 percent at fault in causing the Ficeks’ damages in the amount of $214,000. The City appealed from the judgment entered against it, inclusive of costs and disbursements, for $133,821.89.

II

[¶ 7] The sole issue on appeal is whether the district court committed reversible error in instructing the jury that the City owed the Ficeks a duty to properly inspect the construction of the house and to enforce the applicable building codes at the time the house was constructed.

[¶ 8] Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury. Nesvig v. Nesvig, 2004 ND 37, ¶12, 676 N.W.2d 73. We review jury instructions as a whole to determine their correctness, and instructions will be allowed if, as a whole, they fairly advise the jury of the law on the essential issues in the case. Rittenour v. Gibson, 2003 ND 14, ¶ 15, 656 N.W.2d 691.

[¶ 9] Actionable negligence consists of a duty on the part of the allegedly negligent party to protect the plaintiff from injury, a failure to discharge that duty, and a resulting injury proximately caused by the breach of that duty. Groleau v. Bjornson Oil Co., Inc., 2004 ND 55, ¶ 6, 676 N.W.2d 763. To establish a cause of action for negligence, the plaintiff must show the defendant had a duty to protect the plaintiff from injury. Grewal v. North Dakota Ass’n of Counties, 2003 ND 156, ¶ 9, 670 N.W.2d 336. Whether a duty exists is generally a question of law for the court, but if the existence of a duty depends upon the resolution of factual issues, the facts must be resolved by the trier of fact. Iglehart v. Iglehart, 2003 ND 154, ¶ 11, 670 N.W.2d 343. If no duty exists on the part of the alleged tortfeasor, there is no actionable negligence. Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D.1996).

A

[¶ 10] The City argues it owed no duty to the Ficeks because of the public duty doctrine.

[¶ 11] This Court has never adopted, or even specifically addressed, the public duty doctrine. Simply stated, under the public duty doctrine, when a statute or common law “imposes upon a public entity a duty to the public at large, and not a duty to a particular class of individuals, the duty is not one enforceable in tort.” 1 D. Dobbs, The Law of Torts § 271, at p. 723 (2000) (footnote omitted) (“Dobbs”). The judicially-created public duty doctrine is rooted in a mid-19th century United States Supreme Court decision:

The origin of the public duty doctrine can be traced to South v. Maryland, 59 U.S. (18 How.) 396, 15 L.Ed. 433 (1855). In South, the plaintiff alleged that he was kidnapped and held for a period of four days and released only when he secured the ransom money demanded by his kidnappers. He also asserted that the local sheriff knew that he had been unlawfully detained yet did nothing to obtain his release. The plaintiff sued the sheriff for refusing to enforce the laws of the state and for failing to protect the plaintiff. The circuit court awarded plaintiff a substantial judgment. The Supreme Court reversed and declared that a sheriffs duty to keep the peace was “a public duty, for neglect of which he is amenable to the public, and punishable by indictment only.” 59 U.S. (18 How.) at 403.
The public duty doctrine was. apparently accepted by most state courts in the late nineteenth and early twentieth centuries. The leading treatise on tort law during the era stated:
The rule of official responsibility, then, appears to be this: That if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages.
T. Cooley, A Treatise on the Law of Torts 379 (1879).

Leake v. Cain, 720 P.2d 152, 155 & n. 6 (Colo.1986).

[¶ 12] The public policy concerns underlying the public duty doctrine have been summarized in 18 E. McQuillin, The Law of Municipal Corporations § 53.04.25, at p. 199 (3rd ed. 2003) (footnotes omitted) (“McQuillin”):

Courts give several reasons for the rule. First, it is impractical to require a public official charged with enforcement or inspection duties to be responsible for every infraction of the law. Second, government should be able to enact laws for the protection of the public without exposing the taxpayers to open-ended and potentially crushing liability from its attempts to enforce them. Third, exposure to liability for failure to adequately enforce laws designed to protect everyone will discourage municipalities from passing such laws in the first place. Fourth, exposure to liability would make avoidance of liability rather than promotion of the general welfare the prime concern for municipal planners and policymakers. Fifth, the public duty rule, in conjunction with the special relationship exception, is a useful analytical tool to determine whether the government owed an enforceable duty to an individual claimant.

[¶ 13] A majority of jurisdictions appear to adhere to some form of the public duty doctrine. See, e.g., Gordon v. Bridgeport Hous. Auth., 208 Conn. 161, 544 A.2d 1185, 1197 (1988); Ruf v. Honolulu Police Dep’t, 89 Hawaii 315, 972 P.2d 1081, 1091 n. 7 (1999); Muthukumarana v. Montgomery County, 370 Md. 447, 805 A.2d 372, 395 (2002); Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158, 160 (1972); Massee v. Thompson, 321 Mont. 210, 90 P.3d 394, 403 (2004); Beaver v. Gosney, 825 S.W.2d 870, 873 (Mo.App.1992); E.P. v. Riley, 604 N.W.2d 7, 14 (S.D.1999); Ezell v. Cockrell, 902 S.W.2d 394, 399 (Tenn.1995); Taylor v. Stevens County, 111 Wash.2d 159, 759 P.2d 447, 450 (1988); Holsten v. Massey, 200 W.Va. 775, 490 S.E.2d 864, 873 (1997); Annot., Modem status of rule excusing governmental unit from tort liability on theory that only general, not particular, duty was owed under circumstances, 38 A.L.R.4th 1194, 1197 (1985); Annot., Municipal liability for negligent performance of building inspector’s duties, 24 A.L.R.5th 200, 322 (1994); 18 McQuillin § 53.04.25, at p. 194.

[¶ 14] An exception to the public duty doctrine’s immunity provision arises when a “special relationship” exists between the victim and the public official. See Muthukumarana, 805 A.2d at 394-95; Massee, 90 P.3d at 403.

The public duty rule does not protect a municipality where there was a “special relationship” between a public official and a particular individual that gave rise to a duty to that individual separate from the official’s duty to the general public. The special relationship rule is not only an exception to the public duty doctrine, but also to the tort principle that a person is not liable for the harm caused by others. Special duties can be grounded in reliance, dependence, or the creation by the public entity of a known risk. Courts have identified a variety of criteria which help identify a special relationship. These criteria include the following: direct contact between municipal agents and the plaintiff; an assumption by the municipality, through promises or actions, of an affirmative duty to act on the plaintiffs behalf; knowledge by the municipal agent that inaction could lead to harm; the plaintiffs justifiable reliance on the municipal agent, occurrence of the injury while the plaintiff is under the direct control of municipal agents, municipal action that increases the risk of harm, and the existence of a statute that imposes a duty to a narrow class of individuals rather than to the public at large.

18 McQuillin § 53.04.25, at pp. 199-203 (footnotes omitted). Under the public duty rule, courts generally hold that services such as inspections mandated by municipal building or fire codes or other inspection laws are services provided to the public in general and are not services rendered to a particular individual. Id. at § 53.04.25, at p. 205; Annot., 24 A.L.R.5th 200, § 24, at p. 322.

B

[¶ 15] In Tom Beuchler Constr., Inc. v. City of Williston, 392 N.W.2d 403 (N.D.1986) (“Beuchler I”), the city leased four lots near an airport to a lessee who planned to build a hanger and office complex. The lease contained height restrictions on the development, but the contractor for the project was unaware of the restrictions. The city’s building inspector approved the plans. After the project was substantially completed, the city informed the lessee and the contractor that the building was 10 feet higher than allowed under the lease and ordered the lessee to remove the building. The lessee sued the city for negligent issuance of the building permit, and the district court dismissed the action, concluding the building inspector had no duty to check the restrictive covenant in the lease.

[¶ 16] This Court reversed and remanded, concluding “a building inspector’s duty is not limited solely to ensuring compliance with the Uniform Building Code but comports with the general principles of negligence to exercise reasonable care under the circumstances in issuing a building permit. J & B Development Co. Inc. v. King County, 100 Wash.2d 299, 669 P.2d 468 (1983).” Beuchler I, 392 N.W.2d at 405-06. On remand, the city was held liable for damages and this Court affirmed, concluding the law of the case doctrine precluded the city from raising the defense of governmental immunity in the second appeal. See Tom Beuchler Constr., Inc. v. City of Williston, 413 N.W.2d 336, 339 (N.D.1987) (“Beuchler II”). The public duty doctrine was not mentioned in either Beuchler I or Beuchler II.

[¶ 17] In Myers v. Moore Eng’g, Inc., 42 F.3d 452 (8th Cir.,1994), the Eighth Circuit Court of Appeals considered the Beuchler decisions in an appeal from a summary judgment dismissing an action against a city and its building inspector. The trial court had concluded the city, in inspecting buildings and issuing building permits, did not owe the plaintiffs a duty as members of the general public. The plaintiffs argued Beuchler I established that the city, in performing building inspections and in issuing building permits, owed a duty of reasonable care to all future owners and users of the buildings. The Eighth Circuit disagreed, predicted that this Court would adopt the public duty doctrine, and affirmed the summary judgment.

[¶ 18] The Eighth Circuit agreed with the trial court that “Beuchler is a classic case of special relationship or duty,” and noted that J & B Dev. Co., which this Court relied upon for the duty proposition in Beuchler I, had been expressly overruled by the Washington Supreme Court in Taylor, 759 P.2d at 452. Myers, 42 F.3d at 456. The Eighth Circuit stated:

After reviewing Beuchler and Taylor, the district court concluded that, if presented with the issue raised in this case, the North Dakota Supreme Court would distinguish Beuchler. The facts in Beu-chler satisfy the special relationship criteria defined in Taylor and other cases — there was privity of contract, direct personal contact between plaintiff and the building inspector, a specific request for and assurances of compliance, and reasonable reliance on the inspector’s assurances and the building permit. Because there was no such special relationship between appellants and the City in this case, the district court concluded that the Supreme Court of North Dakota would adopt the approach of either the majority or concurring justices in Taylor and hold that the City-owed no duty to appellants.
We agree with the district court that the Supreme Court of North Dakota would likely construe its decision in Beuchler so as to keep this aspect of municipal tort liability in line with the majority . rule that is followed in Minnesota and South Dakota, much as the Supreme Court of Washington in Taylor limited its earlier decision in J & B Dev. Co.

Id. at 456-57.

[¶ 19] The City urges that we construe Beuchler I as did the Eighth Circuit Court of Appeals in Myers, adopt the public duty doctrine, and conclude as a matter of law that it owed no duty to the Ficeks in this case.

C

[¶ 20] “While a sizeable number of jurisdictions still adhere to the public duty rule, ... the trend has been to abolish the rule.” Jean W. v. Commonwealth, 414 Mass. 496, 610 N.E.2d 805, 312 (1993) (Liacos, C.J., concurring) (footnote omitted). See, e.g., Adams v. State, 555 P.2d 235, 241 (Alaska 1976); Ryan v. State, 134 Ariz. 308, 656 P.2d 597, 599 (1982); Leake, 720 P.2d at 160; Martinez v. City of Lakewood, 655 P.2d 1388, 1390 (Colo.App.1982); Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1015 (Fla.1979); Wilson v. Nepstad, 282 N.W.2d 664, 674 (Iowa 1979); Maple v. City of Omaha, 222 Neb. 293, 384 N.W.2d 254, 260 (1986); Schear v. Board of County Comm’rs, 101 N.M. 671, 687 P.2d 728, 731 (1984); Thompson v. Waters, 351 N.C. 462, 526 S.E.2d 650, 652 (2000); Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 773 N.E.2d 1018, 1032 (2002); Brennen v. City of Eugene, 285 Or. 401, 591 P.2d 719, 725 (1979); Hudson v. Town of East Montpelier, 161 Vt. 168, 638 A.2d 561, 566 (1993); Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132, 139 (1976); Natrona County v. Blake, 81 P.3d 948, 956 (Wyo.2003). See also Prosser and Keeton on the Law of Torts § 131, at p. 1049 (5th ed. 1984) (footnote omitted) (noting the foundations of the public duty doctrine “may have been eroded in part by a number of decisions that have rejected, discounted or narrowed the scope of that doctrine”); Dobbs § 271, at p. 725 (footnote omitted) (noting “[i]n a few states, contemporary courts have rejected the public duty doctrine altogether”); 18 McQuillin § 53.04.25, at p. 206 (footnote omitted) (noting the “public duty rule has been abrogated or limited in a number of jurisdictions”).

[¶21] Courts have relied on several reasons for abrogating or refusing to adopt the public duty doctrine. First, the “major criticism leveled at the public duty rule is its harsh effect on plaintiffs who would be entitled to recover for their injuries but for the public status of the tortfeasor.” Leake, 720 P.2d at 159. There has been a “reasoned reluctance to apply a doctrine that results in a duty to none where there is a duty to all.” Schear, 687 P.2d at 731. See also Martinez, 655 P.2d at 1390 (recognizing application of the “public duty — special duty dichotomy results in ‘a duty to none where there is a duty to all’ ”); Commercial Canter Corp., 371 So.2d at 1015 (recognizing “ ‘general duty’‘special duty’ dichotomy” and stating it is “circuitous reasoning to conclude that no cause of action exists for a negligent act or omission by an agent of the state or its political subdivisions where the duty breached is said to be owed to the public at large but not to any particular person”); Jean W., 610 N.E.2d at 313 (noting “|j]udges and commentators criticizing the rule have focused on the unfairness inherent in a rule that results in a duty to none when there is a duty to all, and pointed out the tortured analyses that result when courts seek to avoid such harsh results without squarely facing the underlying problem”).

[¶ 22] Second, courts have said the public duty doctrine “creates needless confusion in the law and results in uneven and inequitable results in practice.” Leake, 720 P.2d at 159. See also Ryan, 656 P.2d at 599 (stating “[w]e shall no longer engage in the speculative exercise of determining whether the tort-feasor has a general duty to the injured party, which spells no recovery, or if he had a specific individual duty which means recovery.... [T]he parameters of duty owed by the state will ordinarily be coextensive with those owed by others”); Jean W., 610 N.E.2d at 313 (noting Massachusetts courts, like “ ‘other courts, have not managed to draw an intellectually defensible line between immune “public” duties and actionable negligence’ ”); Maple, 384 N.W.2d at 260 (refusing to engage in “ ‘speculative exercise’ ”); Hudson, 638 A.2d at 566 (noting the public duty doctrine “is confusing and leads to inequitable, unpredictable, and irreconcilable results”).

[¶ 23] Third, courts have reasoned that, “although the doctrine is couched in terms of duty rather than liability, in effect, it resurrects the governmental immunities that have been abrogated or limited by most jurisdictions over the last thirty-five years.” Hudson, 638 A.2d at 566. See also Ryan, 656 P.2d at 598 (noting the public duty doctrine “is the old proprietary-governmental distinction in a bright new word-package”); Leake, 720 P.2d at 160 (noting “the effect of the rule is identical to that of sovereign immunity. Under both doctrines, the existence of liability depends entirely upon the public status of the defendant”); Schear, 687 P.2d at 731 (holding “the ‘public duty-special duty’ rule has no viability outside the context of sovereign immunity”); Thompson, 526 S.E.2d at 651 (noting in “some states where sovereign immunity has been either legislatively or judicially abrogated, courts have abandoned the public duty doctrine as another form of sovereign immunity”); Coffey, 247 N.W.2d at 139 (noting the “ ‘public duty’— ‘special duty’ distinction ... set[s] up just the type of artificial distinction between ‘proprietary’ and ‘governmental’ functions which this court sought to dispose of in” abrogating governmental immunity) Na-trona County, 81 P.3d at 954 (noting the “public-duty/special-duty rule was in essence a form of sovereign immunity and viable when sovereign immunity was the rule”).

[¶ 24] Fourth, courts have reasoned “the underlying purposes of the public duty rule are better served by the application of conventional tort principles and the protection afforded by statutes governing sovereign immunity than by a rule that precludes a finding of an actionable duty on the basis of the defendant’s status as a public entity.” Leake, 720 P.2d at 158. See also Ryan, 656 P.2d at 599 (noting “plaintiffs still must show that a duty was owed to the plaintiff, that this duty was breached, and that an injury was proximately caused by the breach”); Jean W., 610 N.E.2d at 313 (noting concerns over excessive financial burdens are addressed by the language of the tort claims act and “traditional tort principles”); Maple, 384 N.W.2d at 260 (noting “plaintiff still must show that a duty was owed to him, that this duty was breached, and that an injury was proximately caused by that breach”); Wallace, 773 N.E.2d at 1031 (noting “conventional negligence principles already provide some measure of protection against the possibility of the state becoming the de facto guarantor of every injury somehow attributable to the actions of a state tortfeasor” and that a “state defendant, just like any private defendant, remains protected by traditional tort concepts of duty, including foreseeability and pertinent public-policy considerations”); Hudson, 638 A.2d at 566 (noting “concerns over excessive government or public employee liability are baseless considering the limitations on liability afforded by conventional tort principles, various types of official immunity, or exceptions to waivers of sovereign immunity”).

[¶ 25] Fifth, and foremost, numerous courts have ruled that the public duty doctrine is simply incompatible with tort claims acts mandating that suits against public defendants be determined in accordance with rules of law applicable to private persons. In Adams, 555 P.2d at 241-42 (footnote omitted), the court said:

[W]e consider that the “duty to all, duty to no-one” doctrine is in reality a form of sovereign immunity, which is a matter dealt with by statute in Alaska, and not to be amplified by court-created doctrine. An application of the public duty doctrine here would result in finding no duty owed the plaintiffs or their decedents by the state, because, although they were foreseeable victims and a private defendant would have owed such a duty, no “special relationship” between the parties existed. Why should the establishment of duty become more difficult when the state is the defendant? Where there is no immunity, the state is to be treated like a private litigant. To allow the public duty doctrine to disturb this equality would create immunity where the legislature has not.

See also Leake, 720 P.2d at 159 (noting “[i]n apparent contravention of [tort claims] statutes, the public duty rule makes the public status of the defendant a crucial factor in determining liability”); Martinez, 655 P.2d at 1390 (noting the “concept of a public duty cannot stand either with the enactment of the statute abrogating sovereign immunity, nor in instances where there is a common law duty of a public entity to the plaintiff’); Commercial Carrier Corp., 371 So.2d at 1016 (stating “a plain reading of the statute” precludes construction that public duty doctrine survived statute’s enactment); Jean W., 610 N.E.2d at 312 (stating “[b]y recognizing that the public duty rule is incompatible with the [tort claims] Act, we align ourselves with most jurisdictions that have squarely considered the issue”); Maple, 384 N.W.2d at 260 (noting “[n]owhere [in tort claims act] is there found an exemption for the exercise of a duty owed to the public generally”); Schear, 687 P.2d at 730, 734 (stating “[n]othing in the [tort claims] statute refers to performance of either public or special duties” and refusing to “breathe new life into a rule which, as a ghost of sovereign immunity, operates as a denial of a cause of action and is inconsistent with ... [the] Act”); Wallace, 773 N.E.2d at 1028 (holding “the public-duty rule is incompatible with [tort claims statute’s] express language requiring that the state’s liability ... be determined ‘in accordance with the same rules of law applicable to suits between private parties’ ”); Bremen, 591 P.2d at 725 (stating “the Legislature specifically provided for certain exceptions under which immunity would be retained, ... and we find no warrant for judicially engrafting an additional exception onto the statute”); Natro-na County, 81 P.3d at 954 (holding the “public duty only rule, if it ever was recognized in Wyoming, is no longer viable”).

[¶ 26] In rejecting the “superficial appeal” of an argument that a statute mandating governmental liability be determined in accordance with rules of law applicable to suits between private parties is compatible with the public duty doctrine because private persons do not possess public duties, the court in Wal lace, 773 N.E.2d at 1026-27, 1028 (footnote omitted), reasoned:

To accept the state’s contention that the public-duty rule is applicable here because it “determines whether a defendant has any duty to begin with” ignores a vital feature of the doctrine that is incompatible with R.C. 2743.02(A)(1). The applicability of the public-duty rule depends upon the public status of the particular defendant raising it as a bar to liability. In other words, only governmental entities and their employees may rely on the rule. It is spurious logic to conclude that a doctrine that is, by definition, available only to public defendants can be consistent with a statute mandating that suits be determined in accordance with rules of law applicable to private parties.... Given the unambiguous directive of R.C. 2743.02(A), there is no legal or logical basis to conclude that the public-duty rule, which is by definition unavailable to private litigants, can apply to suits against the state in the Court of Claims.

See also Commercial Carrier Corp., 371 So.2d at 1017 (refusing “to place such a gloss on our waiver statute” because “[t]o do so would be to essentially emasculate the act and the salutary purpose it was intended to serve”); Jean W., 610 N.E.2d at 312 (noting the “fact that a public employee’s employment imposes on him an affirmative duty to act where a private person would not have such a duty does no more than identify the source of the duty”).

D

[¶ 27] In Kitto v. Minot Park Disk, 224 N.W.2d 795 (N.D.1974), this Court abolished the doctrine of governmental immunity of political subdivisions, concluding the doctrine had a judicial basis and was not mandated by the state constitution. In doing so, this Court “retainfed] no distinction between governmental and proprietary functions.” Id. at 797. In 1977 the Legislature enacted N.D.C.C. ch. 32-12.1 to limit the liability of political subdivisions in the wake of the Kitto decision. See Binstock v. Fort Yates Pub. Sch. Disk, 463 N.W.2d 837, 841 (N.D.1990). Preceding a list of specific limitations on and exceptions to political subdivision liability, N.D.C.C. § 32-12.1-03(1) provides:

Each political subdivision is liable for money damages for injuries when the injuries are proximately caused by the negligence or wrongful act or omission of any employee acting within the scope of the employee’s employment or office under circumstances where the employee would be personally liable to a claimant in accordance with the laws of this state, or injury caused from some condition or use of tangible property, real or personal, under circumstances where the political subdivision, if a private person, would be liable to the claimant.

This legislation resulted from an interim study by the Committee on Political Subdivisions of the North Dakota Legislative Council, see Nelson v. Gillette, 1997 ND 205, ¶ 32 n. 2, 571 N.W.2d 332, and the committee intended that “public employees be held liable for their intentional or malicious acts to make them accountable to the public they serve.” Report of the North Dakota Legislative Council, Forty-Fifth Legislative Assembly, 1977, at p. 175.

[¶ 28] We are persuaded by the reasoning of the minority view and refuse to adopt the public duty doctrine as a part of North Dakota law. Section 32-12.1-03(1), N.D.C.C., specifically provides that political subdivisions are liable for damages caused by an employee’s negligence “under circumstances where the employee would be personally liable to a claimant in accordance with the laws of this state.” The statute contains no exceptions for “public duties,” creates no distinction between “public duties” and “special duties,” and our review of the statute’s legislative history reveals no indication that public duties in general were intended to be excepted from liability. Indeed, N.D.C.C. § 32-12.1-03(3)(d), which specifically excepts a political subdivision from liability for fire protection activities, cuts against such an interpretation. See also N.D.C.C. § 18-10-17.

[If 29] We recognize that J & B Dev. Co., relied upon in Beuchler I, has been overruled by the Washington Supreme Court, but other jurisdictions continue to recognize potential liability under similar circumstances regardless of the public duty doctrine. See Annot., 24 A.L.R.5th 200, § 49, at p. 322, and cases collected therein. Furthermore, the Eighth Circuit Court of Appeals, when predicting in Myers that this Court would adopt the public duty doctrine, did not consider N.D.C.C. § 32-12.1-03(1).

[¶ 30] We also recognize that good public policy arguments can be made for excepting a political subdivision from liability under the circumstances of this case, but those arguments are more appropriately addressed to the legislature rather than to the judiciary. In Rodenburg v. Fargo-Moorhead YMCA, 2001 ND 139, ¶ 29, 632 N.W.2d 407, we said:

“Our function is to interpret the statute .... ‘The justice, wisdom, necessity, utility and expediency of legislation are questions for legislative, and not for judicial determination.’ ” Stokka v. Cass County Elec. Coop., Inc., 373 N.W.2d 911, 914 (N.D.1985) (quoting Syllabus ¶ 11, Asbury Hospital v. Cass County, 72 N.D. 359, 7 N.W.2d 438 (1943)). The legislature is much better suited than courts to identify or set the public policy in this state. Haff v. Hettich, 1999 ND 94, ¶ 22, 593 N.W.2d 383; Martin v. Allianz Life Ins. Co., 1998 ND 8, ¶ 20, 573 N.W.2d 823. “[T]he legislature ‘can do studies, gather evidence, hold hearings, and come to a decision’ and ‘broad public policy issues are best handled by legislatures with their comprehensive machinery for public input and debate’ (citations and quotations omitted).” Allianz, 1998 ND 8, ¶ 20, 573 N.W.2d 823.

If the legislature believes certain activities conducted by political subdivisions require more stringent protection than the limitations currently provided in N.D.C.C. ch. 32-12.1, it may provide that protection. See, e.g., Jean W., 610 N.E.2d at 314; Wallace, 773 N.E.2d at 1029.

[¶ 31] We conclude the public duty doctrine is incompatible with North Dakota law and we refuse to adopt it. The City’s sole complaint in this case is that the district court instructed the jury based on Beuchler I rather than on the public duty doctrine. We conclude the challenged jury instruction correctly and adequately informed the jury of the applicable law.

Ill

[¶ 32] The judgment is affirmed.

[¶ 33] MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., concur.

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 34] Because I believe the public duty doctrine is contrary to the wording in N.D.C.C. § 32-12.1-03(1), I concur in the majority opinion. I do so with the understanding, at least my understanding, that a certification a building meets applicable building codes of the issuing governmental entity is not a guarantee there are no defects in that building or, if there are defects, that the issuing governmental entity is not automatically liable. The rhetoric at least, if not the results, in the cases cited at ¶ 24 in the opinion for the Court by Justice Kapsner support that understanding. Cf. Fast v. State, 2004 ND 111, 680 N.W.2d 265 (holding no liability for fall on icy sidewalk).

[¶ 35] Many of the eases cited in support of the “minority” position, ie., that no public duty doctrine should be adopted, wax eloquently about the proposition that a governmental entity should not be immune from liability for injury to one of its citizens when liability attaches if the same injury is caused by a private citizen. Section 32-12.1-03(1), N.D.C.C., says as much. It may be that such a formula overlooks the much greater responsibility placed on the governmental entity by statute or the responsibility voluntarily assumed by the governmental entity. I am concerned that if the exposure of the governmental entity, because of its responsibility to protect the public from all manner of perceived ills, is too great the inclination will be to reduce the exposure by reducing the protections or limiting them to only minimal requirements. Neither is necessarily good public policy in my mind.

[¶ 36] An example of a comparable situation is found in N.D.C.C. ch. 53-08, which was enacted to encourage landowners to open their land to the public for recreational purposes by limiting the liability of the landowners for injuries. Olson v. Bismarck Parks & Recreation Dist., 2002 ND 61, 642 N.W.2d 864. But see Hovland v. City of Grand Forks, 1997 ND 95, 563 N.W.2d 384 (applying recreational use statute to political subdivision liability statute would circumvent legislature’s intent under N.D.C.C. § 32-12.1-03). It may be necessary to reduce the liability to an individual in order to obtain other desirable benefits for the general public. But, it is for the Legislature to weigh conflicting public policy arguments and to enact accordingly.

[¶ 37] DALE V. SANDSTROM, J., concurs.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2004 ND 160
    STATE of North Dakota, Plaintiff and Appellee v. Douglas HILGERS, Defendant and Appellant.
    No. 20030169.
    Supreme Court of North Dakota.
    Aug. 4, 2004.
    Rehearing Denied Sept. 15, 2004.

      Douglas Hilgers, pro se, Duluth, MN, defendant and appellant; submitted on brief.
    Robert P. Bennett, Assistant Attorney General, Bismarck, N.D., for plaintiff and appellee; submitted on brief.
   NEUMANN, Justice.

[¶ 1] Douglas Hilgers appeals from a criminal judgment and sentence for the offense of removing or detaining a child in violation of a custody decree, a class C felony in violation of N.D.C.C. § 12.1-18-05. We affirm.

I

[¶ 2] Douglas Hilgers and Brenda Hil-gers divorced in 1998. They have four children, one of whom is a minor. The trial court awarded Brenda Hilgers custody of the minor child, and awarded Douglas Hilgers visitation. Brenda Hilgers currently lives in Bottineau, North Dakota, and Douglas Hilgers lives in Duluth, Minnesota.

[¶ 3] In June 2001, Douglas Hilgers removed his minor child from Bottineau, North Dakota, and moved the child to his home in Duluth, Minnesota. Hilgers made several unsuccessful attempts to change custody in Minnesota. On September 13, 2001, the trial court issued an order for the immediate return of the child, subject to contempt and other sanctions, including criminal charges, if Hilgers failed to comply. Hilgers did not comply with the court’s order, and a warrant was issued for his arrest. The minor child was eventually returned to his mother in late September 2001. Hilgers was subsequently arrested. Counsel was appointed at Hilgers’ initial appearance, but that appointment was later withdrawn when the trial court found Hilgers was not indigent. A trial was held and the jury found Hilgers guilty of removing his minor child from the state in violation of the custody decree. Hilgers appeals, raising approximately thirty-one issues relating to his conviction. Among his numerous issues, Hilgers argues (1) the trial court erred in finding him ineligible for court-appointed counsel based on its finding he was not indigent; (2) the trial court erred in denying his request for a continuance; (3) the trial court erred in failing to issue all requested subpoenas; (4) the trial court erred in failing to issue his requested jury instructions; and (5) the trial court abused its discretion in the admission of testimony and evidence at trial.

II

A

[¶ 4] Hilgers argues the trial court erroneously determined he was not indigent, and therefore, did not qualify for court-appointed counsel at public expense. Hilgers argues he should have been granted counsel both during the trial and appellate stages of this case. We review a trial court’s denial of appointment of counsel under an abuse of discretion standard. State v. DuPaul, 527 N.W.2d 238, 240 (N.D.1995).

An abuse of discretion by the trial court is never assumed, and the burden is on the party seeking relief to affirmatively establish it. A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. The party seeking relief must show more than that the trial court made a “poor” decision, but that it positively abused the discretion it has under the rule.

Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 7, 660 N.W.2d 558 (citations omitted).

[¶ 5] “The Sixth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Article I, § 12 of the North Dakota Constitution guarantee a criminal defendant effective assistance of counsel.” Garcia v. State, 2004 ND 81, ¶ 5, 678 N.W.2d 568.

[¶ 6] North Dakota Rules of Criminal Procedure sets forth the right to appointed counsel:

Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent the defendant at every stage of the proceedings from initial appearance ... through appeal in the courts of this state in all felony cases.

N.D.R.Crim.P. 44(a); DuPaul, 527 N.W.2d at 241.

[¶ 7] “There is no legal reason to appoint counsel for someone who can afford and obtain his own.” DuPaul, 527 N.W.2d at 241. Before counsel will be appointed, a defendant has the burden of establishing he is indigent and qualifies for appointment of counsel. State v. Schneeweiss, 2001 ND 120, ¶ 10, 630 N.W.2d 482.

[¶ 8] On December 5, 2002, the trial court removed Hilgers’ appointed counsel, finding Hilgers was not indigent “[b]ased on an income of $31,000 gross per year and [Hilgers’] claim that he transferred real estate to his children without consideration.”

Hilgers contends the trial court erred in finding he had assets, in the form of real property in Wisconsin, that disqualified him from appointment of counsel. However, the trial court does not appear to have adjudicated Hilgers as indigent because he owns the property, as argued by Hilgers on appeal. Based on the record, it appears the trial court found Hilgers ineligible for counsel because he transferred the real property without receiving consideration, not because he owned or had an interest in the property. Clearly, Hilgers’ own statements show that, at one time, he did own the property. Under our guidelines, the trial court, when determining indigency, should consider: “[a]ny indication of anticipatory transfer of assets by defendant to create the conditions for eligibility for defense services should be scrutinized and dealt with decisively.” N.D. Legal Counsel for Indigent’s Comm’n, N.D. Sup.Ct., Indigent Defense Procedures and Guidelines, Aug. 2002, at 1.2.

[¶ 9] Additionally, in his application for court-appointed counsel, Hilgers noted he earned approximately $31,000 per year. An individual with no dependents is eligible for indigent defense services if the annual gross income is at or below $11,075. N.D. Legal Counsel for Indigent’s Comm’n, N.D. Sup.Ct., Indigent Defense Procedures and Guidelines, Aug. 2002, at 1.4. While Hilgers makes reference to his fiancee and several of his children as possible dependants in his application, Hilgers would only be eligible for services, under the guidelines, if there were at least seven persons in his household, based on his listed income of $31,000. Under the guidelines, a person with a household of seven persons is eligible if his annual gross income is at or below $34,175, while a person with a household of six persons is eligible for services if his annual gross income is at or below $30,325. At most, six persons reside in Hilgers’ household. Therefore, he would not qualify under the suggested annual gross income of the guidelines.

[¶ 10] In Hilgers’ Addendum to Application for Appointed Defense Services, dated December 5, 2002, he stated,

I own no real estate.... Mrs. Hilgers, herself, requested that the Wisconsin home be given over to the four children; ... I concluded as well, that it was appropriate.... I regularly seek the children’s input on their interests and intentions. Attempting, with the children’s knowledge, to rent the property to put toward the tax debt....

We have reviewed the information before the trial court, specifically, Hilgers’ own claim that he transferred the property to his children, Hilgers’ allusion to the fact that he retained control over the property, documents showing tax payments, listed income, and other information contained in Hilgers’ application. Because Hilgers did not meet his burden of proving indigency, we conclude the trial court did not abuse its discretion in determining Hilgers did not qualify for appointment of counsel during both the trial and appellate proceedings.

B

[¶ 11] Hilgers also raises several issues with regard to the indigency guidelines used by trial courts within this state. According to Hilgers, the criteria for establishing indigency are unpublished, available only to judges and counsel and, therefore, unavailable to him. He claims he is therefore unable to rebut the criteria set forth in the guidelines. Hilgers also questions, on appeal, “is this issue of ‘assets’ the only criteria required to be evaluated in considering the assignment of appointed counsel, public or otherwise?”

[¶ 12] There is nothing in the record to indicate Hilgers requested access to the indigency guidelines. In addition, we fail to see how knowledge of the guidelines would have assisted Hilgers in meeting his burden of proving indigency. Hilgers presented all of his issues related to health, travel, occupation, and a number of other factors he believed create exceptional circumstances in his case to the trial court. Despite this information, the trial court still found Hilgers ineligible to receive indigent defense services.

[¶ 18] With regard to Hilgers’ final issue regarding the criteria to be considered, the guidelines provide consideration should be given to, “(1) income resources; (2) non-income resources; (3) any extraordinary financial conditions that would prevent the defendant from hiring an attorney; and (4) estimated cost of defense services.” Legal Counsel for Indigent’s Comm’n, N.D. Sup.Ct., Indigent Defense Procedures and Guidelines, Aug. 2002, at 1.3. Additionally, the guidelines also provide a list of “Exceptional Factors,” to be taken into consideration, stating that, “[a] defendant whose income resources or non-income resources exceed these guidelines may still be eligible to receive legal assistance.” Guidelines, 1.7. These factors include, “age or physical infirmity of household members.” Id.

C

[¶ 14] Hilgers argues his appointed counsel, later removed after the trial court determined Hilgers was not indigent, was “negligent/incompetent.” Specifically, Hilgers argues his counsel failed to petition for review of the trial court’s order removing him as counsel. Hilgers also argues appointed counsel was negligent, “having petitioned for: recusal and preserving his right to reassignment (one petition) well knowing that, upon review of the file, that Orders had already been issued.” We will treat Hilgers’ issue as a claim of ineffective assistance of counsel.

[¶ 15] On appeal, we review the entire record when a claim of ineffective assistance of counsel is raised. State v. Lefthand, 523 N.W.2d 63, 69 (N.D.1994). “If we cannot readily determine that assistance of counsel was plainly defective and there exist no other grounds for reversal, then the defendant can later pursue his claim at a post-conviction proceeding where an adequate record can be developed.” Id.

[¶ 16] To establish ineffective assistance of counsel, a petitioner must prove that his counsel’s performance was so deficient as to fall below an objective standard of reasonableness and that counsel’s deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Garcia, 2004 ND 81, ¶ 5, 678 N.W.2d 568. Generally, the second, or prejudice, prong of the Strickland test can only be met if the defendant “establish[es] a reasonable probability that, but for his counsel’s errors, the result of the proceeding would have been different.” Syvertson v. State, 2000 ND 185, ¶ 22, 620 N.W.2d 362.

[¶ 17] Hilgers has not demonstrated the “probable different result” that would have occurred, had his counsel petitioned for review of the trial court’s order. See Lefthand, 523 N.W.2d at 70. Therefore, he has failed to demonstrate prejudice. After reviewing the entire record available to us, we cannot determine counsel’s performance was plainly defective.

Ill

[¶ 18] Hilgers has raised several evi-dentiary issues on appeal. Hilgers asserts the trial court erred in preventing him from offering impeachment evidence against Brenda Hilgers during trial. Additionally, Hilgers argues the trial court erred, causing Hilgers undue prejudice, by barring a witness from testifying; erred in refusing to issue subpoenas and allow out-of-state testimony; improperly referred, during his sentencing hearing, to sealed files and an incident involving his alleged locking of the family freezer; and improperly interrupted him during his arguments at his sentencing hearing.

A

[IT 19] Under Rule 10(b), North Dakota Rules of Appellate Procedure, an appellant is required to file a trial transcript with the Court on appeal. Christianson v. Christianson, 2003 ND 186, ¶ 13, 671 N.W.2d 801. If the appellant fails to comply, he assumes the risks and consequences of such failure. Flattum-Riemers, 2003 ND 70, ¶ 8, 660 N.W.2d 558. A pro se litigant is not granted leniency solely because of his status as such. Id. We have repeatedly held, “we will decline to review an issue if the record on appeal does not allow a meaningful and intelligent review of the trial court’s alleged error.” Id.

[¶ 20] Hilgers has not filed a transcript. Because we have not been provided a transcript, we are unable to provide meaningful review of Hilgers’ issues related to the attempted impeachment of his ex-wife’s testimony, the trial court’s references to sealed files and the freezer incident during sentencing, and the trial court’s interruption of Hilgers’ statements during sentencing. Only a review of the transcript would allow us to fully consider each of these alleged errors. Therefore, we conclude the above-listed issues are without merit.

[¶ 21] We must address Hilgers’ arguments related to the trial court’s denial of a witness from testifying and refusal of out-of-state testimony. In his brief, Hil-gers fails to state the identify of the witness, nor does he offer the nature of the out-of-state testimony. Therefore, we are unsure as to whether this issue was raised in the record before us, or solely during the course of the trial, for which we do not have a transcript. We will assume, however, that Hilgers is referring to the trial court’s refusal to allow a Minnesota social worker and Hilgers’ fiancee, residing in Minnesota, to testify by telephone.

[¶ 22] We have recently addressed the issue of telephonic testimony in a criminal trial:

Under Rule 26, North Dakota Rules of Criminal Procedure, “in all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute or these rules.” North Dakota case law does not address whether telephonic testimony may be admitted in a criminal trial. The civil rule equivalent, Rule 43, N.D.R.Civ.P., requires testimony be taken orally in open court, but allows for deviation from this requirement under certain circumstances if all parties agree.
Because there is no precedent for such a practice in criminal trials and such testimony appears to possibly violate Rule 26, N.D.R.Crim.P., the trial court did not act arbitrarily, unreasonably, or capriciously in denying [the defendant’s] request to allow [his witness] to testify by telephone. Additionally, even if the extended provisions of the civil rule were deemed applicable in this case, there was no agreement between the parties because the State objected. Therefore, the trial court properly refused to allow [the witness] to testify by telephone.

State v. Lemons, 2004 ND 44, ¶¶ 10-11, 675 N.W.2d 148. We have held that a “trial court has broad discretion in determining evidentiary matters.” Id. at ¶ 12.

[¶ 23] In this case, after reviewing the record available to us, the trial court did not abuse its discretion in refusing' to allow Hilgers’ witnesses to testify by telephone.

B

[¶ 24] Hilgers argues the trial court erred in denying several of his requested subpoenas to procure witnesses in his favor. According to Hilgers, “did the trial court error [sic] in canceling his subpoenas and not allowing them because the defendant had no funds for witness fees and other costs?”

[¶ 25] Under the Sixth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment, a criminal defendant “shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor.” However, we have stated that this is not an absolute right and “the defendant must show the testimony would have been both favorable and material to his defense.” State v. Treis, 1999 ND 136, ¶ 11, 597 N.W.2d 664. “Whether the district court’s refusal to issue a subpoena violates the Sixth Amendment is a question of law, and our standard of review for a claimed violation of a constitutional right is de novo.” Id.

[¶ 26] The • procedure for issuing subpoenas is set forth in Rule 17, North Dakota Rules of Criminal Procedure. Under Rule 17(b), N.D.R.Crim.P.:

Defendants Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders a subpoena to be issued, the costs incurred by the process and the fees of the witness so subpoenaed must be paid in the same manner in which similar costs and fees are paid in the case of a witness subpoenaed in behalf of the prosecution.

[¶ 27] On February 21, 2003, the trial court informed Hilgers that he “may petition the court ex-parte for subpoenas of certain parties as witnesses at trial. The Court will sign the subpoenas if you can show the Court that the witnesses will have relevant testimony to give in your defense.... You will also have to request that because of financial hardship the witness fees and service fees be paid by the State.” The trial court also enclosed a copy of Rule 17 of the North Dakota Rules of Criminal Procedure and a sample subpoena to assist Hilgers in his efforts.

[¶ 28] On March 5, 2003, the trial court ordered the Clerk of Court to issue subpoenas to the following persons, as Hil-gers’ requested: Robyn Englestad; Cyndi Mclntee, Bottineau County Social Services; Mary Rothman, Bottineau County Social Services; Bottineau County Sheriff Steve Watson; Bottineau County Deputy Sheriff Sean Murphy. In this order, the trial court stated that, although Hilgers remained responsible for the expenses associated with the service and execution of a subpoena, it would “insure that the witnesses named be paid said expenses. The witnesses are to be give [sic] expense vouchers upon their appearance in court and said expenses will be paid by the Court.” We also note Cyndi Mclntee raised an objection to the subpoena prior to trial, but the trial court still ordered her to appear, stating again that it would provide her with any expenses and witness fees.

[¶ 29] In another order, dated March 5, 2003, the trial court denied four subpoenas, stating the subpoenas were not in compliance with Rule 17, N.D.R.Crim.P. The persons not required to appear under subpoena were: attorney Michael Mcln-tee, Bottineau County State’s Attorney Swain Benson, District Court Judge Gerald Rustad, and Rolette County State’s Attorney Mary O’Donnell.

[¶ 30] It does not appear to us, based on the record, that the subpoenas were denied because Hilgers was unable to afford witness fees and costs. Although Hil-gers correctly states the trial court denied several of his requested subpoenas, the trial court did issue several of the other requested subpoenas. On at least two occasions, the trial court stated it would ensure that all witness fees were paid. The trial court advised Hilgers he would need to comply with the requirements of Rule 17, N.D.R.Crim.P, before a subpoena would be issued. When the trial court determined Hilgers had failed to meet this requirement, it denied several subpoenas.

[¶ 31] In State v. Treis, we held the trial court took reasonable steps to ensure the defendant was afforded due process, even though the court would not issue subpoenas that failed to satisfy N.D.R.Crim.P. 17. Treis, 1999 ND 136, ¶ 12, 597 N.W.2d 664 In Treis, the trial court also required that, before it would allow the defendant to issue a subpoena, “the defendant would have to present to this court in an in camera proceeding the factual basis that would make the testimony of particular witnesses relevant before it would cause the State of North Dakota to be burdened with witness fees and costs.” Id.

[¶ 32] We come to the same conclusion today. Hilgers was afforded due process, despite the trial court’s refusal to issue several of his requested subpoenas. A trial court is not obligated to issue every subpoena requested by a defendant. The record before us does not provide an adequate basis showing the testimony would have been both favorable and material to Hilgers’ defense. We cannot conclude Hil-gers’ Sixth Amendment right to compulsory process was violated. Therefore, we affirm the trial court’s denial of Hilgers’ requested subpoenas.

IV

[¶ 33] Hilgers asserts several grounds for error regarding jury instructions. Specifically, Hilgers argues the trial court refused each of his requested jury instructions, and further failed to provide a basis for such refusal. According to Hilgers, the trial court erred in failing to provide several instructions, including instructions for: (1) legislative intent, (2) required intent, (3) his pro se effort, (4) a definition of “willful,” and (5) the factual existence of the Uniform Child Custody Jurisdiction Enforcement Act, as set forth in N.D.C.C. § 14-14.1-15. Hilger’s issue on appeal states, “Where as the Trial Court permits reference to case law, in determining/answering questions re: Jury Instruction, i.e. age of the child, reference to legislative intent is denied to the defendant to answer questions? Did the Court err? [sic]” Hil-gers asserted the trial court was obligated to issue an instruction so as not to “lead the jury to believe that the defendant exerted free choice in representing himself and influencing the Jury to believe the defendant of such demeanor or poor judgment to do so .... [sic]”

[¶34] Under Rule 30(c), N.D.R.Crim. P., “[t]he giving of instructions and the failure to instruct the jurors are deemed excepted to unless the court, before instructing the jurors, submits to counsel the written instructions it proposes to give to the jurors and asks for exceptions to be noted.” Without a transcript, we are unable to determine whether the trial court complied with this rule, whether the trial court submitted its proposed jury instructions to the State and Hilgers, and whether the trial court afforded Hilgers an opportunity to note exceptions. We are therefore wholly unable to determine whether Hilgers raised and preserved the jury instruction issues.

[¶ 35] We reiterate that our rules require an appellant to file a trial transcript and the consequences of failing to do so fall on the appellant. N.D.R.Civ.P. 30(b); Christianson, 2003 ND 186, ¶ 13, 671 N.W.2d 801; Flattum-Riemers, 2003 ND 70, ¶ 8, 660 N.W.2d 558. “We will decline to review an issue if the record on appeal does not allow a meaningful and intelligent review of the trial court’s alleged error.” Flattum-Riemers, at ¶ 8.

V

[¶ 36] ■ In his brief, Hilgers seems to argue he was not afforded “review by a Jury of peers.” In North Dakota, we have a statutory scheme setting forth the proper method of both summoning a jury panel and challenging a jury panel. See N.D.C.C. ch. 29-17. Under N.D.C.C. § 29-17-19, “[a] challenge to a panel can be founded only on a material departure from the forms prescribed by law in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn.” Additionally, “[a] challenge to a jury panel must be taken before a juror is sworn and must be in writing specifying plainly and distinctly the facts constituting the ground of challenge.” N.D.C.C. § 29-17-20. There is no transcript of the voir dire proceedings. Without a transcript, we cannot provide meaningful review of the trial court’s alleged error. Flattum-Riemers, 2003 ND 70, ¶ 8, 660 N.W.2d 558. We do not know the composition of the jury pool, nor do we know whether anyone was excluded and, if so, a basis for such exclusion. We are unable to determine whether the jury selection proceedings were prejudicial to Hil-gers.

VI

[¶ 37] On appeal, Hilgers argues the trial court erred in denying his re-quests for a continuance. Hilgers moved for a continuance on March 4, 2003, and, after the trial court’s denial on March 5, 2003, Hilgers moved for reconsideration on March 17, 2003, and again requested a continuance on March 21, 2003. According to Hilgers, he showed good cause for a continuance because he did not have adequate time to prepare, despite his clear demonstration of “diligence in his pro se efforts.” Hilgers also argues the trial court erred because there was an “irrational, unreasonable time constraint upon all process of the criminal accusation, far out of proportion to similar cases.” We assume Hilgers is again referring to the trial court’s denial of his motions for continuance.

[¶ 38] Under the North Dakota Rules of Court, motions for a continuance will be granted only if the movant shows good cause. N.D.R.Ct. 6.1(b). ‘We will not reverse a trial court’s decision to deny a continuance absent an abuse of discretion.” Interest of R.O., 2002 ND 154, ¶ 10, 652 N.W.2d 327.

[¶ 39] In this case, the trial court denied Hilgers’ request for a continuance because,

[t]here exists no compelling reason to grant a continuance. The Court recognizes the difficult task before the defendant in representing himself. However, it is the Court’s view that it is the defendant’s refusal to use his resources to hire an attorney rather than indigen-cy that places him in this predicament.

Based on the record before us, including the trial court’s rationale for denying Hil-gers’ request, we conclude the trial court did not act arbitrarily, unreasonably, or unconscionably in denying Hilgers’ requests for a continuance. We find no error in the trial court’s decision.

[¶ 40] In a related matter, Hilgers also argues that, after the “suspicious disappearance” of a “cooperative” witness, the trial court refused to grant a continuance to secure the presence of this witness. We assume this request was made orally during trial because there is no evidence of this request in the record before us and Hilgers has not provided us with a transcript.

[¶ 41] Without a transcript, we are unable to provide a meaningful review of this issue. We do not know if, in fact, Hilgers requested such a continuance, or even whether the witness, who is not identified by Hilgers on appeal, failed to appear. We cannot determine, based on the information before us, whether the trial court abused its discretion -in failing to continue the proceedings.

[¶ 42] Hilgers also argues the trial court erred in failing to continue any of his challenges, despite Rule 12(b)(2), N.D.R.Crim.P., which states defects can be raised at “any time during the pendency of the proceedings.” Hilgers misapplies this rule. This rule applies to “defects in the indictment, information, or complaint.” Clearly, Hilgers’ arguments do not relate to the sufficiency of the charging document. This argument is without merit.

VII

[¶ 43] Hilgers has raised additional issues on appeal. We find these issues without merit.

VIII

[¶ 44] The judgment of the trial court is affirmed.

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


author: SANDSTROM, Justice. VANDE WALLE, Chief Justice,

text:
    2004 ND 157
    STATE of North Dakota, Plaintiff and Appellee v. Ryan C. MITZEL, Defendant and Appellant.
    No. 20030359.
    Supreme Court of North Dakota.
    Aug. 4, 2004.

      Cynthia M. Feland, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
    Tom P. Slorby and Eric P. Baumann, Slorby Law Office, Minot, ND, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Ryan Mitzel is appealing from a South Central Judicial District Court criminal judgment and conviction upon a conditional plea of guilty for possession of marijuana with intent to deliver, a class B felony, and possession of drug paraphernalia, a class A misdemeanor. Mitzel argues the district court erred in denying his motion to suppress evidence that he claims was obtained in violation of his Fourth and Fifth Amendment rights. We reverse and remand, concluding the district court erred in denying Mitzel’s motion to suppress.

I

[¶ 2] On February 15, 2003, Bismarck Police Officers Mike McMerty and Jason Stugelmeyer went to Mitzel’s apartment to investigate a report of a domestic dispute. While in the apartment, Officer McMerty followed Mitzel down the hall toward a back bedroom and observed the odor of marijuana. Mitzel later admitted to smoking marijuana. Officer McMerty asked Mitzel for permission to search the bedroom of the apartment, but Mitzel denied the request. Mitzel was arrested for possession of marijuana. He later consented to a search of the bedroom, and officers found marijuana and marijuana paraphernalia.

[¶ 3] On February 16, 2003, Mitzel was charged with possession of drug paraphernalia and with possession of marijuana with intent to deliver within 1000 feet of a school. On May 15, 2003, Mitzel moved to suppress the evidence found in his apartment. On July 8, 2003, a suppression hearing was held. At the hearing, Officer McMerty testified he was called to respond to a domestic disturbance. He testified he spoke with a neighbor who informed him that people in Mitzel’s apartment had been yelling and that he had heard banging noises in the apartment. He testified he knocked on Mitzel’s door and explained he was there to investigate a domestic disturbance. He testified that he asked whether Mitzel minded if he came inside and that Mitzel let him in. He testified Mitzel said that he was arguing with his girlfriend and that both of them were all right. He testified Mitzel asked him whether he would like to talk to his girlfriend, and he said he would. He testified that Mitzel began walking to the back bedroom and that when he took a step, Mitzel said, “I’ll go get her.” He testified he told Mitzel, “For my safety going back in the bedroom where there has been a domestic I don’t know what’s back there. I’ll come with you.” He testified that Mitzel shrugged and began walking toward the back bedroom.

[¶ 4] The officer testified that as he was walking toward the bedroom, he detected the odor of marijuana. He stated that when Mitzel opened the bedroom door, the odor of marijuana was strong and distinguishable. The officer testified that a female in the room yelled, “You can’t be here!” He testified that the bedroom door was slammed shut and that he pushed the door back open and told the girl to come out. He testified that he instructed Mitzel and the girl to go with Officer Stugelmeyer. He testified he did a quick check for people and returned to the living room.

[¶ 5] The officer testified that he told Mitzel he believed there was marijuana in the back bedroom. He testified Mitzel admitted to smoking marijuana, and he asked Mitzel for consent to search the bedroom, but Mitzel denied the request. He testified that he left to apply for a search warrant after Officer Stugelmeyer arrested Mitzel and the girl for possession of marijuana. The officer testified he did not obtain a search warrant, because he was informed that Mitzel had decided to consent to a search.

[¶ 6] Officer Kenan Kaizer, a detective with the Bismarck Police Department, testified that he volunteered to assist with the case and that he went to Mitzel’s apartment. He arrived after Officer McMerty had left to obtain a search warrant. Officer Kaizer testified he explained to Mitzel and the girl that “it might be awhile; that the State’s Attorney was busy, and that we were trying to contact someone else to issue the Search Warrant for us, but we were just going to have to wait.” He testified that Mitzel said he did not want to wait any longer and that Mitzel and the girl gave consent for a search. He testified he went through a written consent form with them, “had them both read it and sign it, then went through their Miranda rights, had them read that and sign that form also.”

[¶ 7] On August 11, 2003, an order denying Mitzel’s motion to suppress was filed. On August 13, 2003, Mitzel entered a conditional plea of guilty under N.D.R.Crim.P. 11(a)(2) to amended charges, reserving the right to appeal the denial of his motion to suppress. On November 17, 2003, Mitzel was convicted of possession of marijuana with intent to deliver and possession of drug paraphernalia.

[¶ 8] The trial court had jurisdiction under N.D. Const, art. YI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 29-01-12 and 29-28-06.

II

[¶ 9] Mitzel argues the district court erred in denying his motion to suppress evidence found during the search of his apartment, because he did not give his consent for police to follow him to the rear of his apartment, because there were no exigent circumstances to . justify the search, and because his later consent to a search was obtained in violation of his Miranda rights and was involuntary.

[¶ 10] A trial court’s findings of fact in preliminary proceedings of a criminal ease will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence.

City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994); State v. Bollingberg, 2004 ND 30, ¶ 13, 674 N.W.2d 281 (motion to suppress). This standard recognizes the importance of the district court’s opportunity to observe the witnesses and assess their credibility, and great deference is given to the district court in suppression matters. State v. Matthews, 2003 ND 108, ¶8, 665 N.W.2d 28. Questions of law are fully reviewable on appeal. State v. Ova, 539 N.W.2d 857, 858 (N.D.1995); Bollingberg, at ¶ 13. Whether a finding of fact meets a legal standard is a question of law. City of Jamestown v. Dardis, 2000 ND 186, ¶ 7, 618 N.W.2d 495.

[¶ 11] The Fourth Amendment provides protection from unreasonable searches and seizures. U.S. Const, amend. IV. A search and seizure has occurred if a person has a reasonable expectation of privacy in an area searched or in materials seized. Matthews, 2003 ND 108, ¶ 10, 665 N.W.2d 28. Warrantless searches inside a person’s home are presumptively unreasonable. Id. (citing Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). Searches inside a home are not unreasonable, however, if the search falls under one of the exceptions to the search warrant requirement. Id.

[¶ 12] When no exception exists, the evidence obtained must be suppressed as inadmissible under the exclusionary rule. State v. Gregg, 2000 ND 154, ¶ 23, 615 N.W.2d 515. It is the State’s burden to show that a warrantless search falls within an exception to the warrant requirement. State v. Avila, 1997 ND 142, ¶ 16, 566 N.W.2d 410.

A

[¶ 13] One of the exceptions to a warrantless search is consent. State v. DeCoteau, 1999 ND 77, ¶9, 592 N.W.2d 579. The existence of consent is a question of fact to be determined from the totality of the circumstances. United States v. Patacchia, 602 F.2d 218, 219 (9th Cir.1979); United States v. Miller, 589 F.2d 1117, 1130 (1st Cir.1978). The scope of consent is measured objectively by what a reasonable person would have understood by the exchange between the police and the suspect. State v. Guthmiller, 2004 ND 100, ¶ 5, 680 N.W.2d 235.

[¶ 14] In cases involving consent to enter a home, we have held, “ ‘to sustain a finding of consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions to stop the police...'" City of Jamestown v. Dardis, 2000 ND 186, ¶ 11, 618 N.W.2d 495 (quoting DeCoteau, 1999 ND 77, ¶ 11, 592 N.W.2d 579 (citation omitted)). Outside the context of consent to enter a home, it has been found that if police do not request consent, expressly or impliedly, consent cannot reasonably be implied from silence and failure to object. See United States v. Jams, 86 F.3d 383, 390-91 (5th Cir.1996) (consent to search suitcase could not be implied). Although it has been held that consent cannot be implied from silence or failure to object, consent can be implied. Judge James Cis-sell, Federal Criminal Trials § 2-5(h) (6th ed. 2003). Failing to object to the continuation of a consent search makes the continued search objectively reasonable. 1 William E. Ringel, Searches & Seizures, Arrests and Confessions § 9.3 (2d ed. 2004); United States v. Alcantar, 271 F.3d 731, 738 (8th Cir.2001).

[¶ 15] In this case, it is undisputed that the police were invited in by the defendant. The trial court found that when the defendant went to the back bedroom, the police officer advised him that he would need to accompany him if he was going to another part of the house. The trial court found that “the officer could follow the defendant in the absence of an express statement denying him that privilege by the defendant. The defendant in this case had voluntarily let the officer in.”

[¶ 16] Although the findings of fact are supported by the evidence, the district court has misapplied the law, because these findings are insufficient to show consent. See Diemert v. Johnson, 299 N.W.2d 546, 548 (N.D.1980) (holding that the Court is not bound by findings based on an erroneous conception of law). This is not a case in which Mitzel failed to object to the officer’s following him down the hall. But see State v. Perseke, 1999 Minn.App. Lexis 550 *3 (finding voluntary consent where appellant allowed police officer to follow him downstairs). This also is not a case in which the officer requested consent. In this case, the officer began following Mitzel, and Mitzel said, “I’ll go get her.” The officer replied, “For my safety going back in the bedroom where there has been a domestic I don’t know what’s back there. I’ll come with you.” The officer did not ask for Mitzel’s consent; he made a statement of authority. In response to the officer’s statement, Mit-zel “kind of shrugged and started walking back to the bedroom.” Mere acquiescence to police authority is insufficient to show consent. 1 W.E. Ringel, Searches & Seizures, Arrests and Confessions § 9.3 (2d ed. 2004); see United States v. Jaras, 86 F.3d 383, 390 (5th Cir.1996).

[¶ 17] Even if the officer’s statement could be interpreted as asking Mitzel for consent to search, a reasonable person would not believe Mitzel’s conduct showed consent. In determining whether a suspect has consented to an officer’s request to search, the question is not subjective but is whether a reasonable person would believe the conduct showed consent. 1 W.E. Ringel, Searches & Seizures, Arrests and Confessions § 9.3 (2d ed. 2004). Consent should not be lightly inferred. People v. Cameron, 73 Misc.2d 790, 342 N.Y.S.2d 773, 782 (1973); United States v. Patacchia, 602 F.2d 218, 219 (9th Cir.1979). Consent must be proven by clear and positive testimony. United States v. Scott, 578 F.2d 1186, 1188 (6th Cir.1978); United States v. McCaleb, 552 F.2d 717, 721 (6th Cir.1977). Consent must be unequivocal. Cameron, at 784 (finding action of shrugging insufficient to constitute consent); McCaleb, at 721. A shrug is ambiguous; it can “ ‘express aloofness, indifference, or uncertainty.’ ” People v. Raibley, 338 Ill.App.3d 692, 273 Ill.Dec. 345, 788 N.E.2d 1221, 1230 (2003) (quoting Merriam Webster’s Collegiate Dictionary 1084 (10th ed. 2000)). Even Officer McMerty interpreted the shrug to mean “whatever.”

[¶ 18] We conclude the district court’s findings of fact are based on an erroneous conception of law and are therefore insufficient to constitute consent.

B

[¶ 19] Another exception to the warrant requirement is exigent circumstances, meaning an “emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” DeCoteau, 1999 ND 77, ¶¶ 14-15, 592 N.W.2d 579 (citations omitted). We apply a de novo standard of review to determine whether the facts constitute exigent circumstances. Id. at ¶ 15. Mitzel argues that no exigent circumstances existed when the officer followed him through his apartment.

[¶ 20] The district court concluded the officer acted appropriately under the circumstances. The district court stated:

The officer was aware that shouting etc. had emanated from the premises and had no idea what was at the rear of the apartment. He was entitled to protect himself from what may be at the rear of the apartment once the defendant was out of his view. These are often explosive situations and one in which the officer had a right to protect himself. The defendant could have called out to the other occupant to come to the living room and he chose not to do so.

In Fletcher v. Town of Clinton, 196 F.3d 41, 50 (1st Cir.1999), the court stressed:

On the spot reasonable judgments by officers about risks and dangers are protected. Deference to those judgments may be particularly warranted in domestic disputes. In those disputes, violence may be lurking and explode with little warning. Domestic violence victims may be intimidated or suffer from a dependence inherent in the abusive relationship. The signs of danger may be masked.

[¶ 21] The court in Fletcher also stated that police must often make balanced choices. “Domestic violence situations require police to make particularly delicate and difficult judgments quickly.” Id. The court, however, also recognized that “officers must respect basic freedoms guaranteed by the Fourth Amendment. A person’s home is her sanctuary, not ordinarily to be entered by the police unless that entry is authorized by a warrant.” Id.

[¶ 22] Although domestic disputes can be explosive, there are insufficient specific facts in this case indicating that an immediate search of the apartment was warranted. In this case, the police received a call from a neighbor who reported banging and yelling coming from inside Mitzel’s apartment. There was no disturbance in progress when the officers arrived, and Mitzel informed the police that he and his girlfriend had had a fight and that they were both fine. There was no testimony that Mitzel was trying to prevent the police from entering the apartment or that he was being evasive. There was no testimony that Mitzel had any violent tendencies, and there were no initial signs of intoxication. There was no testimony to indicate that Mitzel was not calm, and there was no evidence of an altercation, such as blood, bruising, or raw knuckles. Mitzel asked whether the officers wanted to talk to his girlfriend, and he went to get her. These circumstances are insufficient to show exigent circumstances. See DeCoteau, 1999 ND 77, ¶¶ 17-18, 592 N.W.2d 579 (no exigent circumstances found while police investigated a domestic situation); see also Tamborino v. Superior Court, 41 Cal.3d 919, 226 Cal.Rptr. 868, 719 P.2d 242, 244 (1986) (officer justified in searching home for a potential victim when he observed a person wounded and bleeding and there had been a report of a robbery); State v. Sailas, 129 Idaho 432, 925 P.2d 1131 (Ct.App.1996) (exigent circumstances found when officers saw blood on a woman’s hands and nose and the domestic disturbance continued in their presence); State v. Wiedenheft, 136 Idaho 14, 27 P.3d 873 (Ct.App.2001) (exigent circumstances found when a 911 call was received, police observed injuries, and person answering door was visibly upset); People v. Mascarenas, 972 P.2d 717 (Colo.Ct.App.1998) (exigent circumstances found when police observed injuries); Fletcher v. Town of Clinton, 196 F.3d 41 (1st Cir.1999) (exigent circumstances found when there was a restraining order and prior conduct with alleged abuser); State v. Greene, 162 Ariz. 431, 784 P.2d 257 (1989) (exigent circumstances found when victim told the police that she had been beaten); State v. Lynd, 54 Wash.App. 18, 771 P.2d 770 (1989) (exigent circumstances found when there was a hang-up call to 911).

[¶ 23] Because the facts do not show an emergency requiring swift action to prevent imminent danger to life or property, exigent circumstances do not justify the search of Mitzel’s apartment. Because no exceptions to a warrantless search apply, we conclude the officer’s action in following Mitzel through his home constitutes an unlawful search and all evidence obtained from the warrantless search must be suppressed as inadmissible under the exclusionary rule. See State v. Gregg, 2000 ND 154, ¶ 23, 615 N.W.2d 515.

C

[¶ 24] Mitzel also argues the district court erred in finding his subsequent consent to search was valid. He argues his consent to search was invalid because it was obtained in violation of his Miranda rights and was involuntary.

[¶ 25] Whether consent to search is voluntary is a question of fact. United States v. Larson, 978 F.2d 1021, 1023 (8th Cir.1992). A trial court must determine whether, under the totality of the circumstances, the consent was voluntary. DeCoteau, 1999 ND 77, ¶ 9, 592 N.W.2d 579. The government has the burden to prove that consent was voluntarily given. United States v. McCaleb, 552 F.2d 717, 720 (6th Cir.1977).

[¶ 26] When consent is the product of a free and unconstrained choice and not the product of duress or coercion, it is voluntary. Larson, 978 F.2d at 1023. To determine voluntariness, we focus on two elements: (1) the characteristics and condition of the accused at the time of the consent, and (2) the details of the setting in which the consent was obtained, with no one factor being determinative. City of Fargo v. Ellison, 2001 ND 175, ¶ 13, 635 N.W.2d 151; see also State v. Guscette, 2004 ND 71, ¶ 11, 678 N.W.2d 126.

[¶ 27] In deciding that Mitzel’s consent was valid, the district court does not appear to have considered the totality of the circumstances. The district court, to the exclusion of all other factors, appears to have based its decision solely on the fact that Mitzel signed a consent as a result of having been informed that it would take a few hours to obtain a search warrant. The trial court’s rationale for its finding was that it was satisfied Mitzel was aware of his right to wait until a search warrant had been secured.

[¶ 28] Before Mitzel consented to the search, without the benefit of a Miranda warning, he was told the officers “would” get a search warrant, but that it “might take awhile” and would be “time consuming.” Lack of a Miranda warning, by itself, does not invalidate a consent to search. United States v. Lee, 356 F.3d 831, 834 (8th Cir.2003); United States v. Newton, 259 F.3d 964, 966-67 (8th Cir.2001). Stating that a search warrant will be obtained is also insufficient to render consent involuntary. See United States v. Bramble, 894 F.Supp. 1384, 1392 (D.Haw.1995) (consent to search was voluntary when officers said they would get a search warrant but did not claim to have a search warrant or to be able to obtain one immediately); see also United States v. Miller, 589 F.2d 1117, 1132 n. 13 (1st Cir.1978) (consent is not made involuntary by an assertion that a warrant would be obtained if no consent is given to search).

[¶ 29] When Mitzel consented to the search, he had been arrested and was in handcuffs. Because all of the evidence obtained from the initial search must be excluded under the exclusionary rule, there was no basis for his arrest. The mere fact that a person has been arrested in violation of his constitutional rights casts grave doubt upon the volun-tariness of a subsequent consent. United States v. McCaleb, 552 F.2d 717, 721 (6th Cir.1977); United States v. Bazinet, 462 F.2d 982, 989 (8th Cir.1972); but see United States v. Watson, 423 U.S. 411, 424-25, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (consent to search valid while defendant in custody after lawful arrest). There were also two officers present when he consented, and Mitzel was not given his Miranda warning until after he had consented to the search. Miranda warnings are a factor to consider under the voluntariness test. United States v. Payne, 119 F.3d 637, 643-44 (8th Cir.1997). Miranda warning cannot support voluntariness of consent when it is given after the consent. United States v. Perez-Lopez, 348 F.3d 839, 847 (9th Cir.2003).

Ill

[¶ 30] Although the trial court found Mitzel’s written consent to search was valid, that determination was based upon an incorrect application of the law. We therefore reverse the criminal judgment, vacate the order denying the motion to suppress, and remand for a determination of whether Mitzel’s consent was voluntary under the totality of the circumstances. If, applying the law set forth above, the trial court determines Mitzel’s consent was involuntary, Mitzel must be permitted to withdraw his guilty plea.

[¶ 31] WILLIAM A. NEUMANN, and CAROL RONNING KAPSNER, JJ., concur.

VANDE WALLE, Chief Justice,

dissenting.

[¶ 32] The majority opinion has outlined the facts and the applicable law. Because I do not agree the trial court misapplied the law to the facts, I respectfully dissent to Section II B of the majority opinion and the reversal of the judgment of conviction. Under the circumstances of this case I believe exigent circumstances justified the actions of the police officers as an exception to the requirement of a search warrant under the Fourth Amendment of the United States Constitution. I would therefore affirm the order denying the suppression of the evidence and the judgment of conviction.

[¶ 33] There is no doubt that Mitzel invited the police into the home. For purposes of this dissent I agree with the majority that once in the home, Mitzel’s subsequent actions were not consent for the officer to accompany Mitzel to the back bedroom. But, the facts of this case are significantly different than those in State v. DeCoteau, 1999 ND 77, 592 N.W.2d 579. First, as has been noted, the police were invited into the home. In DeCoteau, the issue was whether or not the police were justified in entering the home. We held they were not. Although an invitation or consent to enter a home does not alone entitle the police to roam at will through the entire house, once inside the home, it seems to me the potential danger to the officers is considerably greater than when the officers were outside or in a common hall. Officer McMerty’s testimony that “For my safety going back in the bedroom where there has been a domestic I don’t know what’s back there. I’ll come with you” indicates as much. While Mitzel’s silence may not have been consent to the officer to accompany him, that consent is not necessary under these facts.

[¶ 34] The other significant fact which distinguishes this from DeCoteau is that in DeCoteau both adults were outside the home when the police arrived. The woman assured the police there was nothing wrong and asked the police to leave. The police saw a broken window, were told by a child standing in the street that he heard the sound of breaking glass. The officer’s justification for entering the home was the officer wanted to see if the children were all right although it is not clear from the opinion there were children in the home.

[¶35] Here, the woman with whom Mitzel was arguing was not outside the home nor visibly present in the home, although Mitzel’s statements to the officer and subsequent actions clearly indicated she was present.

[¶ 36] It is well known that law enforcement officers may be in considerable danger when called to the scene of domestic violence. Here, the officer was invited into the home and told by the defendant he had been arguing with his girlfriend, who was not visible in the home. Out of concern for the woman and his own protection, I believe the officer was justified under the exigent circumstances exception to the warrant requirement in the Fourth Amendment in following the defendant to the rear of the home where he smelled the marijuana. As a result, I believe the ensuing arrest was not illegal and that the subsequent consent to search the home was voluntary and therefore valid under these circumstances.

[¶ 37] MARY MUEHLEN MARING, J„ concurs.