text:
    2005 ND 16
    STATE of North Dakota, Plaintiff and Appellee v. Orvin McKinley IGOU III, Defendant and Appellant.
    No. 20040093.
    Supreme Court of North Dakota.
    Jan. 19, 2005.

      Cynthia Mae Feland, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Kent M. Morrow, Bismarck, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Orvin McKinley Igou, III, appealed from a judgment of conviction entered upon a jury verdict finding him guilty of gross sexual imposition, solicitation of a minor, and failure to register as a sex offender. We hold there is substantial evidence to support Igou’s convictions on all counts. We further hold, however, that Igou’s conviction for solicitation of a minor was wrongly designated a class C felony, instead of a class A misdemeanor. We, therefore, affirm all convictions, but reverse and remand for resentencing on all counts, in consideration that Igou’s conviction on count II is a class A misdemeanor.

I. Facts

[¶ 2] Igou moved to Bismarck in 2002 and registered with the Bismarck Police Department as a sexual offender for a prior conviction in Nevada of possession of child pornography. While in Bismarck, Igou met M.T. (“Mary,” a pseudonym) with whom he began a relationship, through which he met Mary’s daughter, N.T. (“Nancy,” a pseudonym), age 15, and her friend, K.W. (“Kate,” a pseudonym), age 14.

[¶ 3] In June 2003, Igou was charged with sexually assaulting Kate and soliciting sex from Nancy. He was also charged with failing to register as a sex offender for not notifying the Bismarck Police Department that he had changed his Bismarck address. A jury found Igou guilty on all counts.

II. Sufficiency of the Evidence

[¶ 4] On appeal Igou asserts there is insufficient evidence to support his convictions. At the close of the State’s case, Igou moved for a judgment of acquittal under N.D.R.Crim.P. 29, thereby preserving the issue of sufficiency of the evidence. See State v. Mathre, 2004 ND 149, ¶ 19, 683 N.W.2d 918. The motion was denied.

[¶ 5] Our standard, of review is well established for cases in which a defendant challenges the sufficiency of the evidence to support a criminal conviction. A defendant bears the burden of showing the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt. State v. Wilson, 2004 ND 51, ¶ 6, 676 N.W.2d 98. On appeal, this Court merely reviews the record to determine if there is competent evidence that allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. Id. A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor. State v. Knowels, 2003 ND 180, ¶ 6, 671 N.W.2d 816.

A. Gross Sexual Imposition

[¶ 6] The jury found Igou guilty of gross sexual imposition, a class A felony, in violation of N.D.C.C. § 12.1 — 20—03(l)(d), which provides:

1. A person who engages in a sexual act with another, or who causes another to engage in a sexual act, is guilty of an offense if:
d. The victim is less than fifteen years old.

[¶ 7] In viewing the evidence most favorable to the verdict, we conclude it is sufficient to support Igou’s conviction of gross sexual imposition for having sex with Kate, who at the time was 14 years old. The evidence shows that during Memorial Day weekend in 2003, Igou, Mary, Nancy, and Kate all went camping at a nearby lake. The four of them slept in one large tent. Kate testified that late in the evening, when they were all lying in the tent, Igou began touching her vaginal area under her clothes. Nancy testified that Kate “grabbed my hand and had me feel her pants,- and his [Igou’s] -hand was in her pants.” At 2:30 a.m., Igou drove Kate back to Bismarck so she could deliver newspapers and Nancy went with them. Kate and Nancy both testified that when they arrived in Bismarck Igou stopped at his apartment to take out his contact lenses. Nancy testified “we were going to go to his place, and they were going to have sex, and then we were going to drop her off and then' come back and finish, me and him were going to.” Kate testified that she and Igou had sex in his bedroom while Nancy watched television in the living-room. The three of them then left Igou’s apartment and Igou dropped off Kate at her house so she could deliver her paper route. Nancy testified that she slid into the front seat when Kate got out of the car and “then we were driving, and he asked me if I wanted to have sex, and then I said no I didn’t, that I wanted my boyfriend to be my first.”

[¶ 8] Nancy testified that at first she was afraid to tell anyone, because Igou said he would kill them if they told. However, about a week later, Nancy told her boyfriend’s mother about what had happened. The police were then notified.

[¶ 9] Mary testified that about a week after the camping trip, Nancy told her what happened:

[S]he told me the reason why she was sick to her stomach because, she goes something happened between [Igou] and [Kate]. And I’m going what’s going on here, and she goes, she goes, well she told me they did it. And that’s how she said it. And I’m going really. I said really. I said, and then I really got upset. And [Nancy] told me that he had asked her to do it. And she had said no. And she demanded to come back to the campground where I was. And then she told me that he said, [Igou] had said if they were to tell anybody, that he was going to kill them.

[¶ 10] In viewing the evidence in the light most favorable to the verdict, we conclude the jury could reasonably have found beyond a reasonable doubt that Igou committed gross sexual imposition in violation of N.D.C.C. § 12.1 — 20—03(l)(d) by having sexual intercourse with Kate, who was then 14 years old.

III. Solicitation of a Minor

[¶ 11] Igou was also charged and convicted of solicitation of a minor, in violation of N.D.C.C. § 12.1-20-05, which provides:

1. An adult who engages in, solicits with the intent to engage in, or causes another to engage in a sexual act with a minor, is guilty of a class A misdemeanor if the victim is a minor fifteen years of age or older.
2. An adult who solicits with the intent to engage in a sexual act with a minor under age fifteen or engages in or causes another to engage in a sexual act when the adult is at least twenty-two years of age and the victim is a minor fifteen years of age or older, is guilty of a class C felony.

[¶ 12] On this count, the trial court instructed the jury as follows:

The Information charges the offenses to have been committed as follows, to-wit:
COUNT 2: The defendant, Orvin McKinley Igou III, solicited with the intent to engage in a sexual act with a minor fifteen years of age or older and the defendant is at least twenty-two years of age; specifically the defendant solicited [Nancy], D.O.B. 01/20/88....
SOLICITATION OF A MINOR: An adult who willfully solicits a minor over the age of fifteen (15) years of age to engage in a sexual act is guilty of the crime of Solicitation of a Minor....
COUNT II: Solicitation of a Minor
1. That on or about May 31, 2003;
2. In Burleigh County, North Dakota,
3. The defendant, Orvin Igou III,
4. Willfully
5. Solicited [Nancy] to engage in a sexual act and
6. [Nancy] was a minor over the age of fifteen (15) years old.

A.

[¶ 13] Igou asserts there is not sufficient evidence to prove that Igou was guilty of “soliciting” in violation of the statute. While not defined by our criminal statute, Black’s Law Dictionary 723 (5th ed.1983) defines “solicit” to mean:

To appeal for something; to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving; to endeavor to obtain by asking or pleading; to entreat, implore, or importune; to make petition to; to plead for; to try to obtain;, and though the word implies a serious request, it requires no particular degree of importunity, entreaty, im-ploration, or supplication.

[¶ 14] Nancy testified that, while she and Igou were riding in his car, after Igou had dropped Kate off at her home, Igou twice asked Nancy to have sex with him. She declined and told him she wanted to go back to be with her mother at the campsite. Viewed in the light most favorable to the verdict, there is sufficient evidence for the jury to have reasonably found that Igou earnestly requested Nancy to have sex with the intent of engaging in sexual intercourse with her and that his conduct violated N.D.C.C. § 12.1-20-05.

B.

[¶ 15] Under N.D.R.Crim.P. 52(b), “[o]bvious errors or defects affecting substantial rights may be. noticed although they were not brought to the attention of the court.” The power to notice .obvious error on the court’s own motion is one which should be exercised cautiously and only in exceptional circumstances. State v. Smith, 1999 ND 109, ¶ 14, 595 N.W.2d 565. An appellate court may notice error that was not brought to the attention of the trial court if there was: (1) error, (2) that is plain, and (3) affects substantial rights. State v. Flanagan, 2004 ND 112, ¶ 6, 680 N.W.2d 241. We have discretion to correct obvious error and should correct it if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. State v. Clark, 2004 ND 85, ¶ 6, 678 N.W.2d 765.

[¶ 16] Although not brought to the trial court’s attention, we take notice on our own motion that the charge on count II, and Igou’s conviction thereof, has been designated a class C felony, but under the statute it is clearly a class A misdemeanor. In entering the judgment and sentence, the trial court improperly designated Igou’s conviction on count II as a class C felony, but Igou’s wrongful conduct as charged and proven could only constitute a class A misdemeanor under the statute. The jury was correctly instructed and the verdict could not have been prejudicially impacted by this error. However, the trial court may have imposed a different sentencing structure for the three convictions if count II had been properly designated a class A misdemean- or instead of a class C felony. We, therefore, find it necessary to reverse and remand this case for resentencing on all counts, in consideration that Igou’s conviction on count II is a class A misdemeanor.

IV. Failure to Register as Sex Offender

[¶ 17] Igou was also charged and convicted of failing to register as a sex offender, a class A misdemeanor, in violation of N.D.C.C. § 12.1-32-15, which provides in relevant part:

1.... If an individual required to register pursuant to this section has a change in name, school, or address, that individual shall inform in writing, within ten days, the law enforcement agency with whom that individual last registered of the individual’s new name, school, residence address, or employment address.

The trial court instructed the jury on the following essential elements of this offense:

COUNT III: Failure to Register as a Sex Offender
1. Some time between April 1, 2003, and June 11, 2003, in Burleigh County, North Dakota, the defendant, Or-vin Igou III, relocated to a new address in Bismarck, North Dakota;
2. That Orvin Igou III was a person required to register as a sexual offender;
3. That within 10 days of relocation by the defendant;
4. He willfully failed to register with local Bismarck authorities.

Igou asserts the only element the State failed to prove beyond a reasonable doubt was the final element that Igou willfully failed to register with local Bismarck authorities. Igou testified that he mailed a letter to the Bismarck Police Department about his change of address in Bismarck. However, Jean Leuwer,,the supervisor of records for the Bismarck Police Department testified that although the department would accept a handwritten notification of a sex offender’s change of address, there are no records on file that the department ever received such a letter from Igou or that Igou otherwise attempted to notify the department of his change of address.

[¶ 18] It is the exclusive function of the jury to weigh the evidence and judge the credibility of witnesses, and we will not substitute our judgment for that of the jury where the evidence is conflicting, if one of the conflicting inferences reasonably tends to prove guilt and fairly warrants a conviction. State v. Schill, 406 N.W.2d 660, 661 (N.D.1987). Viewing the evidence in a light most favorable to the verdict, we conclude the jury could reasonably have found beyond a reasonable doubt that Igou willfully failed to register as a sex offender in violation of N.D.C.C. § 12.1-32-15.

IV

[¶ 19] Viewing the evidence in the light most favorable to the verdict, we conclude there is substantial evidence upon which a jury could reasonably find Igou guilty on all charges brought against him. Because Igou’s conviction on count II was wrongly designated a class C felony, rather than a class A misdemeanor, we affirm the conviction on all counts but reverse and remand for resentencing on all counts, in consideration that the conviction on count II is a class A misdemeanor.

[¶ 20] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM, and WILLIAM A. NEUMANN, JJ., concur.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2005 ND 11
    STATE of North Dakota, Plaintiff and Appellee v. Dawn Marie NELSON, Defendant and Appellant.
    No. 20040084.
    Supreme Court of North Dakota.
    Jan. 19, 2005.

      Michael R. Hoffman, Bismarck, N.D., for defendant and appellant.
    Michel W. Stefonowicz, Assistant State’s Attorney, Crosby, N.D., for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] Dawn Nelson appeals from the trial court’s order deferring imposition of sentence entered on a conditional plea of guilty. Nelson challenges the trial court's denial of her motion to suppress evidence obtained from her home. We reverse and remand for further proceedings consistent with this opinion.

I

[¶ 2] Law enforcement were dispatched to pick up Dawn Nelson at her home in Stanley, North Dakota, and transport her to Trinity Hospital in Minot pursuant to a district court emergency treatment order. Nelson lives in a multi-level home with three levels and a basement. The first level has a den with a door to the garage; the second level has a living room, dining room, and bathroom; and, the third level has three bedrooms. When law enforcement arrived Nelson was in the den, on the first level. As she was escorted out the door into the garage, Nelson allegedly stated, “he made it right here.” Law enforcement interpreted that statement to mean her husband had manufactured methamphetamine at the residence. Nelson also stated she needed to find her inhaler because she was having an asthma attack. Nelson indicated she thought the inhaler was in the den in a milk crate. The officers and Nelson searched for her inhaler. Chief Deputy Bristol and Chief Halvorson searched other areas of the home while the remaining officers and Nelson searched in the den. Bristol testified he entered an upstairs bedroom and found a “foil bindle” sitting on a dresser. Immediately after discovering the bindle, he heard someone say they found the inhaler. He confiscated the foil bindle and returned to the den where the inhaler was found in Nelson’s purse. Nelson testified the length of the search was less than a minute. Bristol testified the search was about a minute to a minute and a half. Whether Nelson told Bristol the inhaler was not in any other part of the house is disputed.

[¶ 3] Bristol applied for a search warrant of Nelson’s home based, in part, on the foil bindle found in her home. The search warrant was granted and executed. Halvorson requested the presence of Gary Nelson, Dawn Nelson’s father-in-law, during the search. The State argues Gary Nelson was present to allow entry to the home and ensure against future allegations of officer impropriety. Gary Nelson called Tammy Chrest, a child protection worker, and requested she come to the home to observe the home’s condition. Neither Gary Nelson or Tammy Chrest participated in the searph.

[¶ 4] The search resulted in Dawn Nelson’s arrest for possession of marijuana and drug paraphernalia. The trial court denied her motion to suppress evidence. She conditionally pled guilty and reserved the right to appeal.

II

[¶ 5] Dawn Nelson’s notice of appeal indicates she is appealing from the order deferring imposition of sentence. Under N.D.C.C. § 29-28-06, an order deferring imposition of sentence is not an appealable order. The trial court did not enter a separate judgment of conviction. However, when the order deferring imposition of sentence complies with the requirements of N.D.R.Crim.P. 32(b) for criminal judgments and no separate judgment of conviction has been entered, the order serves as the judgment of conviction. State v. Berger, 2004 ND 151, ¶ 8, 683 N.W.2d 897. In this case, the order satisfies the requirements of N.D.R.Crim.P. 32(b) and serves as the judgment of conviction. Therefore, the appeal is properly before us.

Ill

[¶ 6] When reviewing a trial court’s ruling on a motion to suppress, we defer to the trial court’s findings of fact and resolve conflicts in testimony in favor of affirmance. City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 774 (N.D.1996). After resolving conflicting evidence in favor of affirmance, we affirm the trial court’s decision unless there is insufficient competent evidence to support the decision, or the decision goes against the manifest weight of the evidence. State v. Haverluk, 2000 ND. 178, ¶ 7, 617 N.W.2d 652. Questions of law are fully renewable. Id.

[¶ 7] On appeal, Dawn Nelson argues the evidence should be suppressed because the search warrant was obtained based on evidence illegally seized during the war-rantless search of her home. The State argues the officer’s presence in Nelson’s bedroom, where he saw and seized the foil bindle, was justified because it fell under the emergency exception to the warrant requirement.

[¶ 8] The trial court did not clearly articulate the legal basis for its decision permitting the use of the foil bindle as evidence supporting the issuance of the search warrant. The officers did not have a search warrant at the time the bindle was discovered. Therefore, an exception to the warrant requirement must apply before the foil bindle can support probable cause for the search warrant that was subsequently issued. In its initial order denying suppression, the trial court failed to explain what exception to the warrant requirement, if any, applied. On a subsequent motion for reconsideration, the trial court held whether Nelson’s asthma attack presented officers with an actual emergency was debatable, however, the emergency exception did not apply because the officers were already legitimately inside Nelson’s home. The trial court erred in denying Nelson’s motion to suppress without clearly explaining why the bindle could be considered, and it misinterpreted the law regarding the application of the emergency doctrine.

[¶ 9] The Fourth Amendment of the United States Constitution and Article I, Section 8, of the North Dakota Constitution protect individuals from unreasonable searches and seizures. City of Fargo v. Ternes, 522 N.W.2d 176, Í78 (N.D.1994). The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The United States Supreme Court has noted that searches and seizures inside' a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). A warrantless search is not unreasonable if the government can prove the search or seizure is subject to one of the few well-delineated exceptions. State v. DeCoteau, 1999 ND 77, ¶7, 592 N.W.2d 579. One such exception is the emergency doctrine. Ternes, 522 N.W.2d at 178. “The emergency doctrine allows police to enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress.” Id.

[¶ 10] Generally, the emergency exception is used when the police need to gain entry into a residence without a warrant. E.g., Lubenow v. ND State Highway Comm’r, 438 N.W.2d 528 (N.D.1989) (holding emergency exception applied when officer entered a garage to check on a person lying on the garage floor beside a vehicle). In the present case, the trial court correctly noted the officers were already legally inside Nelson’s home. However, the trial court incorrectly concluded that because the officers were legally inside, the emergency exception could not apply.

[¶ 11] In State v. Mitzel, 2004 ND 157, 685 N.W.2d 120, we analyzed whether the exigent circumstances exception to the warrant requirement applied when a police officer was already inside a residence. Id. at ¶¶ 19-23. Although we ultimately determined exigent circumstances did not exist in Mitzel, the application of the doctrine is analogous to applying the emergency exception in Nelson’s case. See id. at ¶ 23.

[¶ 12] This Court has outlined the requirements for applying the emergency exception:

(1)The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest and seize evidence.
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

State v. Matthews, 2003 ND 108, ¶ 28, 665 N.W.2d 28. The officer’s reasonable belief an emergency existed is judged by an objective standard. Lubenow, 438 N.W.2d at 532.

[¶ 13] Under the first requirement that law enforcement have reasonable grounds to believe an emergency is at hand and an immediate need for their assistance exists for the protection of life or property, we have applied the emergency doctrine when officers have a reasonable belief a situation involves a serious threat to an individual’s health. See, e.g., Lubenow, 438 N.W.2d at 533 (holding an officer had a reasonable belief an emergency existed when he observed a body lying beside a vehicle in a garage); Ternes, 522 N.W.2d at 178 (holding officers had reasonable grounds to believe an emergency existed when they knew Ternes was in a serious vehicle accident and a large amount of blood was inside the vehicle and led to his home). A review of other jurisdictions applying the emergency exception in cases involving a health risk yields similar results. See, e.g., Sheikr-Abdi v. McClellan, 37 F.3d 1240, 1244 (7th Cir.1994) (holding police entry proper when called by paramedics to assist with a person who consumed too much alcohol); Arizona v. Mata, 125 Ariz. 233, 609 P.2d 48, 54 (1980) (holding police entry justified when a man repeatedly stated his baby was shot); Illinois v. Paudel, 244 Ill.App.3d 931, 184 Ill.Dec. 317, 613 N.E.2d 344, 351 (1993) (holding emergency exception applied when officer entered a home in response to a report of an unconscious male); Montana v. District Court, 176 Mont. 257, 577 P.2d 849, 853 (1978) (holding emergency exception applied when officers entered through an open -door to determine whether a young man slumped over a table in the middle of the afternoon needed assistance); c.f. Colorado v. Smith, 40 P.3d 1287, 1290-91 (Colo.2002) (holding emergency exception did not apply because an immediate crisis did not exist when defendant briefly passed out and immediately regained consciousness).

[¶ 14] In this case, the officers were inside Nelson’s home to transport her to Trinity Medical Center under a district court emergency treatment order. Before the officers left her home, Nelson started to have an asthma attack and informed the officers she needed her inhaler. Nelson testified she could not breathe, she was wheezing and struggling to breathe, and the search for the inhaler took “less than a minute because otherwise I would have started to black out.” Officer Bristol testified:

Q. In your testimony this morning on direct examination by the prosecutor, it didn’t sound to me like you made an observation of her that this was somehow an emergency situation.
A. As far as her asthma?’
Q. Yes,
A. I guess it didn’t. She appeared to be — you know, upset. Yeah, I will agree to that.
Q. Okay. My "question is, from your point of view she’s asking for an inhaler, but you’re not looking at it as an emergency situation, you know, if she doesn’t get her inhaler she’s going to die.
A. No, I didn’t look at it from that point of view. My point of view for her wanting it was, you know, she knew she was going to be gone and it was something that she needed, you know, it was a medication, so we were going to make sure she went with it.-

[¶ 15] There is conflicting testimony regarding whether Nelson’s condition was an actual emergency. Weighing the evidence and determining the credibility of witnesses is a task that belongs exclusively to the trier of fact. City of Jamestown v. Tahran, 2003 ND 35, ¶ 4, 657 N.W.2d 235. We will not resolve conflicts in evidence. Id: Accordingly, we reverse the trial court’s determination the emergency doctrine did not apply, and we remand for a factual determination of whether an objective person would believe an emergency 'existed.

IV

[¶ 16] Dawn Nelson argues the evidence should be suppressed because she did not give the officers consent to search her entire home. The trial court did not specifically decide whether Nelson consented to the search. Whether Nelson gave consent is a question of fact deter-minéd by the totality of the circumstances. See State v. Mitzel, 2004 ND 157, ¶ 13, 685 N.W.2d 120.

[¶ 17] Consent is one of the exceptions to the Fourth Amendment’s warrant requirement. Mitzel, 2004 ND 157, ¶ 13, 685 N.W.2d 120. Whether consent is given is a question of fact. Id. “The scope of consent is measured objectively by what a reasonable person would have understood by the exchange between the police and the suspect.” Id. To prove consent, the State must show affirmative conduct that is consistent with giving consent. City of Jamestown v. Dardis, 2000 ND 186, ¶ 11, 618 N.W.2d 495. Merely showing a person took no affirmative action to stop the police from searching is not enough. Id. We have noted consent to search other items, such as a suitcase, cannot be implied from silence or the failure to object. Mitzel, 2004 ND 157, ¶ 14, 685 N.W.2d 120.

[¶ 18] In Nelson’s case, the officers did not specifically request her consent to search the home. She stated she needed her inhaler, but did not verbally ask the officers for help finding it. The officers told her they would help and asked where she last had it. In response to the officers’ question, she said it was probably in a milk crate in the den. While other officers were searching in the den, Bristol went upstairs to search for the inhaler. Bristol testified Nelson never told him not to go upstairs. Nelson testified she noticed Bristol going upstairs and said, “No, it’s not up there.”

[¶ 19] Even if we disregard Nelson’s testimony that she told officer Bristol the inhaler was not upstairs, a reasonable person would not believe her conduct showed consent to search her entire home. We have stated, “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. Consent should not be lightly inferred. Consent must be proven by clear and positive testimony. Consent must be unequivocal.” Mitzel, 2004 ND 157, ¶17, 685 N.W.2d 120 (citations omitted). None of the testimony in the record clearly proves language or conduct amounting to consent. Dawn Nelson’s conduct cannot reasonably be interpreted to show she consented to the search of her home.

V

[¶ 20] The State argues the search warrant is supported by probable cause without the foil bindle. Although the trial court found the foil bindle was legally discovered and did not consider this issue, we address it because of the likelihood of its reoccurrence on remand if the foil bindle is excluded. See State v. Egan, 1999 ND 59, ¶ 15, 591 N.W.2d 150.

[¶ 21] Probable cause to search exists if “the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.” State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995). We consider whether sufficient evidence is presented to establish probable cause independent of the trial court’s findings. State v. Ballweg, 2003 ND 153, ¶ 12, 670 N.W.2d 490. The totality-of-the-circumstances test is used to determine whether probable cause existed. Id. The magistrate must be presented with more than “bare-bones” information to establish probable cause. State v. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912.

Although each bit of information ..., by itself, may not be enough to establish probable cause and some of the information may have an innocent explanation, probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers ... which is not weighed in individual layers but in the laminated total.

Id.

[¶ 22] If the foil bindle is excluded, the remaining evidence includes Dawn Nelson’s delusional erratic behavior, and the statement her husband “made it right here,” which Bristol interpreted to mean her husband, Scott Nelson, made methamphetamine in their home. The magistrate also knew Scott Nelson was currently in a drug rehabilitation program.

[¶ 23] During the application for the search warrant, the issuing magistrate inquired how Bristol knew Nelson’s statement “he made it right here” meant Scott Nelson made methamphetamine in the home. Bristol never directly answered the question. Officer Bristol later testified, in response to a different issue, that Scott Nelson had voluntarily committed himself to a drug rehabilitation program three or four weeks ago. If Bristol correctly believed Scott Nelson made methamphetamine in their home, it would have been three or four weeks since it last occurred.

Stale information of previous misconduct does not establish probable cause that similar or other improper conduct is continuing to occur.... Staleness is determined after reviewing the particular facts of each case, and passage of time may be unimportant to the validity of probable cause when the course of conduct is of a protracted or continuous nature.... Drug use can also be a habituating and continuing offense.

State v. Roth, 2004 ND 23, ¶ 17, 674 N.W.2d 495 (citations omitted). In State v. Hage, 1997 ND 175, ¶ 14, 568 N.W.2d 741, we held the magistrate could properly rely on information pertaining to drug trafficking that was acquired one to four months before the search warrant. The defendant in Hage was suspected of possessing a controlled substance. Id. Likewise, Dawn Nelson was suspected of possessing a controlled substance and the information about her husband’s use or manufacturing of methamphetamine was around three to four weeks old. We conclude staleness is not an issue in this case.

[¶ 24] Officer Bristol did not supply the issuing magistrate with information supporting his conclusion that Dawn Nelson’s statement “he made it right here” meant Scott Nelson made methamphetamine in their home. The magistrate did not further inquire how Bristol arrived at this conclusion. Previously, courts have found spouse’s statements regarding their spouse’s involvement in illegal activity sufficient to support probable cause. The reliability of a spouse’s statement has been assumed once it was disclosed the informant was the defendant’s spouse and resided at the address to be searched. Kansas v. Cowdin, 25 Kan.App.2d 176, 959 P.2d 929, 933 (1998).

[¶ 25] In Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001), police officers accompanied a woman to her home while she removed her belongings from the residence she shared with her husband. Id. at 328, 121 S.Ct. 946. After removing her possessions, she told the officers “Chuck had dope in there” and she had seen him “slide some dope underneath the couch.” Id. at 329, 121 S.Ct. 946. The United States Supreme Court noted police had probable cause to believe the home contained evidence of a crime. Id. at 331, 121 S.Ct. 946. The Court stated, “The police had had an opportunity to speak with [her] and make at least a very rough assessment of her reliability. They knew she had had a firsthand opportunity to observe her husband’s behavior, in particular with respect to the drugs at issue.” Id. at 332, 121 S.Ct. 946.

[¶ 26] Like McArthur, Bristol had an opportunity to make an assessment of Dawn Nelson’s reliability. He also knew she had an opportunity to observe Scott Nelson’s behavior in their home. However, the spouse’s statements courts have found supporting probable cause contained a level of specificity and detailed facts that Dawn Nelson’s statement did not. E.g., Cowdin, 959 P.2d at 931 (wife’s statement included specific details of the location of stolen goods, drugs, and guns her husband possessed); Kansas v. Arculeo, 29 Kan.App.2d 962, 36 P.3d 305, 309 (2001) (common law wife’s statement included details of drug use and drugs stored in her husband’s safe); New Hampshire v. Wilkinson, 136 N.H. 170, 612 A.2d 926, 927 (1992) (wife notified police her husband was involved in a hit and run accident and the vehicle was parked in the garage); New York v. Butchino, 152 A.D.2d 854, 544 N.Y.S.2d 64, 65 (1989) (wife signed a statement detailing her husband’s involvement in trafficking cocaine). Dawn Nelson merely stated “he made it right here.” Bristol’s testimony during the application for the search warrant does not elaborate on the basis for his assumption that Dawn Nelson was specifically referring to the manufacture of methamphetamine. Without any further information regarding the conversation surrounding the statement or corroborating information that Scott Nelson actually manufactured methamphetamine, the statement alone cannot be used to support probable cause. Bristol did not supply the issuing magistrate with information sufficiently explaining why he thought Dawn Nelson’s vague statement meant Scott Nelson manufactured methamphetamine in their home. Without supporting information, we are left with Bristol’s speculation that her statement indicated methamphetamines were manufactured in the home. “An affidavit expressed in conclusions without detailing underlying information is insufficient for probable cause.” State v. Rangeloff, 1998 ND 135, ¶ 19, 580 N.W.2d 593.

[¶ 27] The magistrate was also presented with information regarding Dawn Nelson’s delusional behavior in the days before she was committed. Bristol testified this behavior was consistent with methamphetamine use. The magistrate noted her behavior was also consistent with several mental illnesses. Conduct that appears innocent may support probable cause. State v. Thieling, 2000 ND 106, ¶ 9, 611 N.W.2d 861. “The relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

[¶ 28] The officers were present at Dawn Nelson’s home on an emergency commitment order. Her behavior, although possibly related to drug activity, could also be explained by noncriminal sources. In Thieling, we noted baggies, tinfoil and plastic altered in a manner consistent with drug packaging, discovered during a garbage search, but not containing drug residue, did not raise a high degree of suspicion. Thieling, at ¶ 9. We concluded the garbage search evidence, containing no drug residue, combined with other minimal evidence of drug activity, was “merely a thin layer to be measured in the probable cause analysis.” Id. Likewise, Dawn Nelson’s delusional behavior, consistent with either drug use or mental illness, is merely a thin layer in the probable cause analysis.

[¶ 29] If the foil bindle is excluded, very little evidence remains to conclude drugs would be found in Nelson’s home. The “very few and very thin layers together” do not support probable cause to search Nelson’s home. Thieling, at ¶ 13. If the trial court determines the foil bindle was discovered during an unconstitutional warrantless search, the evidence stemming from the search of Dawn Nelson’s home must be suppressed.

VI

[¶ 30] Dawn Nelson argues the evidence found during the execution of the search warrant should be suppressed because the warrant and her constitutional rights were violated by the presence of Gary Nelson and Tammy Chrest during the execution of the search warrant. The State argues the presence of Gary Nelson and Tammy Chrest did not violate Dawn Nelson’s constitutional rights and, even if it did, suppression of the evidence is not the appropriate remedy. The trial court denied Nelson’s motion to suppress based on the presence of third parties.

[¶ 31] In Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999), the United States Supreme Court held the presence of third parties in a home during the execution of a warrant, who are not in aid of the execution of the warrant, is a violation of the Fourth Amendment. The Wilson Court noted the violation of the Fourth Amendment was the presence of third parties, not the presence of the police. Id. at n. 2. Since Wilson, courts have held that exclusion of evidence is not the correct remedy for this type of Fourth Amendment violation. See, e.g., United States v. Hendrixson, 234 F.3d 494, 497 (11th Cir.2000) (holding exclusion was not the appropriate remedy because the media presence did not expand the scope of the search); United States v. Workcuff, No. 02-00189-01-CR-W-GAF, 2002 WL 31927426, at *14, 2003 U.S. Dist. LEXIS 23775, at *42 (W.D.Mo. Dec.18, 2003) (holding suppression was not the appropriate remedy when a photographer reporter was present, but did not aid in the search); Artis v. United States, 802 A.2d 959, 968 (D.C.2002) (holding the mere presence of the media during the execution of a search warrant did not require the remedy of exclusion). These courts have noted the exclusionary rule might apply to evidence discovered by third parties present during the execution of the warrant, but not to the evidence lawfully found by law enforcement. E.g., Hendrixson, 234 F.3d at 497.

[¶ 32] In Nelson’s case, the officers asked Gary Nelson to attend the execution of the search warrant. The officers’ stated reason for Gary Nelson’s presence was to let them into the house and help ensure against future allegations of misconduct. Although Gary Nelson was arguably there to aid in the execution of the warrant by allowing the officers entry into the house, his presence after allowing entry may not have been necessary. Dawn Nelson has not presented any evidence that Gary Nelson did anything other than unlocking the doors and sitting beside an officer while inventorying items. Dawn Nelson does not argue, nor does she present any evidence showing Gary Nelson actually discovered any of the- evidence seized from her home during the execution of the warrant. Gary Nelson’s presence did not expand the scope of the warrant and does not necessitate the suppression of evidence found during the search. See Hendrixson, 234 F.3d at 497.

[¶ 33] Dawn Nelson argues Tammy Chrest’s presence requires suppression of the evidence. Tammy Chrest was invited to Dawn Nelson’s home by Gary Nelson, not by law enforcement. The Supreme Court in Wilson held- the presence of third parties invited by the police violated the Fourth Amendment. Wilson, 526 U.S. at 614,119 S.Ct. 1692. In the present case, the officers did not invite Tammy Chrest, Gary Nelson did.

[¶ 34] Relying on Wilson, the Ohio Court of Appeals held that because the police did not invite the third party along during the execution of a warrant, their presence did not violate the Fourth Amendment. Ohio v. Covey, No. L-98-1173, 2000 WL 638951 (Ohio App. 6 Dist. May 19, 2000). Likewise, because the officers did not invite- Tammy Chrest to Nelson’s home during the execution of the warrant, her presence did not violate Dawn Nelson’s Fourth Amendment rights. The trial court did not err in its denial of Nelson’s motion to suppress based on the presence of Gary Nelson and Tammy Chrest during the execution of the search warrant.

VII

[¶ 35] We reverse the order deferring imposition of sentence and the denial of Nelson’s motion to suppress, and also the determination that the emergency exception did not apply because the officers were legally inside Nelson’s home. We vacate the order denying the motion to suppress, and remand for withdrawal of Nelson’s guilty plea and a determination of whether the officers were presented with an emergency situation justifying the search of Dawn Nelson’s home, and whether probable cause existed for the issuance of the warrant. If the trial court determines there was not probable cause to support the issuance of the search warrant, the evidence obtained during the search of Nelson’s home must be suppressed. We reverse and remand for further proceedings consistent with this opinion.

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


text:
    2005 ND 13
    STATE of North Dakota, Plaintiff and Appellee v. Maurice Robert THILL, Defendant and Appellant.
    No. 20040074.
    Supreme Court of North Dakota.
    Jan. 19, 2005.

      Robert V. Bolinske, Jr., Bismarck, N.D., for defendant and appellant.
    Brian D. Grosinger, Assistant State’s Attorney, Mandan, N.D., for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] Maurice Thill appeals from the trial court’s judgment of conviction after a jury convicted him of gross sexual imposition. We affirm the judgment of conviction.

I

[¶ 2] On June 1, 1999, Maurice Thill was charged with gross sexual imposition. The charges arose from a party Thill attended the night of May 30, 1999, at S.M.’s home, during which S.Y., a child under the age of fifteen, accused Thill of inappropriate touching. A trial was set for January 2000. Before the trial began, Thill fled the jurisdiction of the court and did not return until December 2002.

[¶ 3] In September 2003, Thill moved for dismissal of the case based on the destruction of. videotapes and physical evidence by the Mandan Police Department in January 2002. The trial court denied the motion, finding no evidence of misconduct or intentional destruction of evidence by the police and finding the lost evidence would not be exculpatory even if it were available to Thill. The trial was rescheduled for November 2003.

[¶ 4] During a trial break, a jury member was in the hallway when S.M. made a statement about Thill’s past improper conduct. Thill moved for a mistrial. When the trial court asked the juror if she heard anything being discussed in the hallway, the juror repeatedly stated she was not paying attention and did not hear what was said. After informing the juror, she could only consider what was presented in the court room, the trial court denied Thill’s motion for a mistrial. , The jury convicted Thill, and this appeal followed.

II

[¶ 5] On appeal, Thill argues the trial court erred when it denied his motion to dismiss. He argues the evidence was intentionally destroyed and would have been exculpatory to his case. The State argues the evidence was destroyed in error, and the destruction was partially a result of the .delay in trial created by Thill’s extended absence from the court’s jurisdiction.

[¶ 6] We have outlined the standard of review for preliminary proceedings, such as a motion to dismiss, in criminal cases:

We will not reverse a trial court’s findings of fact in preliminary criminal proceedings if, after the conflicts in the testimony are resolved in favor of affir-mance, there is sufficient competent evidence fairly capable of supporting the findings and if the trial court’s decision is not contrary to the manifest weight of the evidence.... This deferential standard of review recognizes the importance of the opportunity of the trial court to observe and assess the credibility of witnesses.

State v. Berger, 2001 ND 44, ¶ 11, 623 N.W.2d 25 (citations omitted).

[¶ 7] A prosecutor’s failure to preserve evidence that is material and favorable to a' defendant may violate a defendant’s constitutional right to due process and a fair trial. State v. Steffes, 500 N.W.2d 608, 612 (N.D.1993); N.D.R.Crim.P. 16(d)(2). In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the State failed to preserve clothing and semen samples for proper testing in a molestation case. Id. at 55, 109 S.Ct. 333. The United States Supreme Court noted, when the evidence is neither plainly exculpatory or inculpato-ry, the defendant must show the police acted in bad faith. Id. at 57-58, 109 S.Ct. 333. Unless a defendant can prove the State acted in bad faith, “failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58, 109 S.Ct. 333. We have defined bad faith:

Bad faith, as used in cases involving destroyed evidence or statements, means that the state deliberately destroyed the evidence with the intent to deprive the defense of information; that is, that the evidence was destroyed by, or at the direction of, a state agent who intended to thwart the defense.

Steffes, 500 N.W.2d at 613.

[¶ 8] In Steffes, an officer taped over an audio tape of a field sobriety test because he assumed the case was “over and done with.” Id. The Court noted that although his' actions “could be termed reckless, intentional, negligent, or merely that of following or failing to follow regular police procedure,” it did not meet the high evidentiary standard necessary to prove bad faith destruction of evidence. Id. at 613-14. The tape was erased under the belief the case was finished and the tape would no longer be needed, not to thwart the defense. Id. at 614. The Court found absent the State’s bad faith, the case' did not implicate the due process violation test. Id.; see also State v. Barnett, 543 N.W.2d 774, 777 (N.D.1996) (finding be-' cause “there was no bad faith, there was no federal due process violation”).

[¶ 9] Thill argues the State acted in bad faith when it destroyed evidence of videotaped interviews. Thill does not offer any evidence showing the tapes were exculpatory or the State acted in bad faith. The trial court found the evidence was likely not exculpatory. The trial court heard evidence from the officer who destroyed the tapes and found no-bad faith existed. The officer testified he was cleaning up the evidence room and, at the time, thought he had permission to destroy the tapes. The officer may have failed to follow regular police procedure by destroying the evidence without proper permission, but that action does not constitute bad faith. See Steffes, 500 N.W.2d at 613-14. Thill has not met the high evidentiary standard to prove the State acted in bad faith when the evidence was destroyed. The trial court’s decision denying Thill’s motion to dismiss is not contrary to the manifest weight of the evidence.

Ill

[¶ 10] Thill argues the trial court erred when it failed to grant a mistrial after the jury member allegedly heard inadmissible statements about Thill’s past improper conduct.

[¶ 11] We have stated:

Generally, granting a mistrial is an extreme remedy which should be resorted to only when there is a fundamental defect or occurrence in the proceedings of the trial which makes it evident that further proceedings would be productive of manifest injustice.

State v. Klose, 2003 ND 39, ¶ 14, 657 N.W.2d 276.

[¶ 12] Thill has not presented any evidence the juror actually heard the statement S.M. made or that the juror disregarded the trial court’s cautionary instruction “your decisions have to be based strictly on sworn testimony that is given in the courtroom.” Even if the juror had heard the statement, jurors are presumed to follow jury instructions and the trial court’s statement would have removed any improper prejudice. State v. Welch, 426 N.W.2d 550, 553 (N.D.1988). Thill has failed to present any evidence the failure to grant a mistrial resulted in a manifest injustice. Accordingly, the trial court did not err in denying Thill’s motion for a mistrial.

IV

[¶ 13] We affirm the judgment of conviction.

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


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

text:
    2005 ND 15
    STATE of North Dakota, Plaintiff and Appellant v. Christopher FIELDS, Defendant and Appellee.
    No. 20040037.
    Supreme Court of North Dakota.
    Jan. 19, 2005.

      Allen M. Koppy (argued), State’s Attorney, Mandan, N.D., for plaintiff and appellant.
    Steven M. Light (argued) and Lindsey D. Haugen, Larivee & Light, Grand Forks, N.D., for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] The State appealed from the trial court’s grant of Christopher Fields’ motion to suppress evidence related to a search of his home on May 15, 2003. We hold the nighttime search violated N.D.R.Crim.P. 41(c)(1), and affirm the order suppressing the evidence obtained as a result of the illegal search.

I

[¶ 2] On May 13, 2003, Officer Eisen-mann testified at a hearing in support of a warrant to search Fields’ home. Eisen-mann testified that during a garbage search law enforcement discovered five corner baggies with white residue powder, one of which tested positive for methamphetamine, three burnt “tinfoilies” regularly used for smoking methamphetamine, and a cut up hanger with the strong smell of marijuana. Eisenmann also testified he had personal knowledge Fields used his vehicle to transport narcotics. Eisenmann testified that during a traffic stop in May 2002, law enforcement discovered a handgun, cash, and drugs in Fields’ vehicle! This evidence was a result of an illegal search of Fields’ vehicle. State v. Fields, 2003 ND 81, ¶ 21, 662 N.W.2d 242.

[¶ 3] Fields moved to suppress any evidence found as a result of the 2003 search of his home, arguing the illegally obtained evidence from the 2002 traffic stop could not be used to support the warrant. Fields argued that without the tainted evidence, the warrant was not supported by probable cause. The trial court granted the motion after finding the search warrant was improperly supported by evidence of a previous illegal search of Fields’ vehicle. See Fields, 2003 ND 81, 662 N.W.2d 242 (holding evidence obtained due to an unlawful detention during a traffic stop must be suppressed). The trial court held that without the evidence from the illegal search, the warrant would not have been issued because it lacked the necessary finding of probable cause.

[¶ 4] On appeal, the State does not dispute the evidence from the illegal search of Fields’ vehicle cannot support a valid search warrant. The State argues the search warrant was supported by enough independent evidence, even without the tainted evidence, to establish probable cause. Fields argues, even if the warrant was supported by probable cause, the evidence did not support a separate finding of probable cause sufficient to support the nighttime warrant. Fields argues the evidence obtained as a result of the deficient warrant should be suppressed.

II

[¶ 5] The State argues the evidence was improperly suppressed because, after excising the illegally obtained evidence, the remaining evidence is sufficient to establish probable cause for the search warrant. We have addressed probable cause stating:

Probable cause is required for a search warrant under the Fourth Amendment to the United States Constitution, and Article I, Section 8 of the North Dakota Constitution. Whether there is probable cause to issue a search warrant is a question of law. The totality-of-the-cireumstances test is used to review whether information before the magistrate was sufficient to find probable cause, independent of the trial court’s findings.
* * * *
Probable cause to search does not require the same standard of proof necessary to establish guilt at trial. Probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place. Circumstantial evidence may alone establish probable cause to support a search warrant. The information available for a probable cause determination is considered together, not separately.

State v. Wamre, 1999 ND 164, ¶¶ 5-6, 599 N.W.2d 268 (internal quotations and citations omitted).

[¶ 6] It is well established that illegally obtained evidence cannot be used to establish probable cause to issue a search warrant. State v. Corum, 2003 ND 89, ¶ 9, 663 N.W.2d 151 (citing Alderman v. United States, 394 U.S. 165, 177, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); State v. Winkler, 1997 ND 144, ¶ 12, 567 N.W.2d 330; State v. Runck, 534 N.W.2d 829, 833-34 (N.D.1995); State v. Kunkel, 455 N.W.2d 208, 211-12 (N.D.1990)). To determine whether probable cause exists, we excise the tainted information from the affidavit and consider the remaining legal evidence presented to the issuing magistrate. See State v. Winkler, 552 N.W.2d 347, 353 (N.D.1996) (noting to have a valid search, a search warrant must be based upon a source independent of information gained from an illegal entry). After removing the tainted evidence from consideration, evidence from the garbage search and from police surveillance of Fields’ home remain to establish probable cause for the search. The garbage search produced five corner baggies with white residue powder, one of which tested positive for cocaine, three burnt “tinfoilies” regularly used for smoking methamphetamine, and a cut up hanger with the strong smell of marijuana.

[¶ 7] Probable cause to issue a search warrant “exists if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.” Corum, 2003 ND 89, ¶ 22, 663 N.W.2d 151 (citations omitted). Relying on the Eighth Circuit Court of Appeals, this Court stated, “Where drug residue is discovered in the garbage, ‘it is well established that affidavits based almost entirely on the evidence garnered from garbage may be sufficient to support a finding of probable cause.’ ” State v. Jones, 2002 ND 193, ¶ 17, 653 N.W.2d 668 (quoting United States v. Sumpter, 669 F.2d 1215, 1221 (8th Cir.1982)). This Court has previously held probable cause to issue a search warrant existed when probable cause was “primarily established from drug residue in the garbage.” Id. (citing State v. Duchene, 2001 ND 66, ¶¶ 15-17, 624 N.W.2d 668 (holding probable cause to issue a search warrant was supported by marijuana seeds and stems found in the garbage along with prior drug convictions); State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995) (holding the presence of marijuana seeds in the garbage provided a substantial basis to support probable cause); State v. Erickson, 496 N.W.2d 555, 559 (N.D.1993) (holding evidence of marijuana combined with citation and envelope with Erickson’s name in the garbage supported a determination of probable cause)).

[¶ 8] In State v. Thieling, 2000 ND 106, 611 N.W.2d 861, we noted baggies, plastic and tin foil, common household items found during a garbage search, did not support probable cause to believe illegal drugs were being packaged in the home. Id. at ¶¶ 9, 13. The baggies were torn and tied but did not contain drug residue. Id. at ¶ 9. We stated that the garbage evidence without drug residue did not create a high degree of suspicion and was “merely a thin layer to be measured in the probable cause analysis.” Id. Fields’ garbage also contained baggies. However, one of the baggies tested positive for a methamphetamine residue. The garbage also contained burnt tin foil consistent with methamphetamine use and a cut up hanger with the strong smell of marijuana. This actual drug evidence, rather than items that may be indicia of drugs, is enough to support probable cause. Considering the totality of the circumstances, the evidence obtained from the search of Fields’ garbage and police surveillance “would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.” Corum, 2003 ND 89, ¶ 22, 663 N.W.2d 151 (citations omitted). After excising the tainted evidence, the search warrant was supported by probable cause.

Ill

[¶ 9] Fields argues the search warrant was not supported by a separate finding of probable cause for the nighttime search and, therefore, the evidence should be suppressed. Rule 41(c)(1), N.D.R.Crim.P., requires the issuing magistrate find a suffi-dent showing of probable cause to justify the authorization of a nighttime search. See State v. Knudson, 499 N.W.2d 872, 875 (N.D.1993) (concluding reasonable cause is synonymous with probable cause) (overruled on other grounds State v. Herrick, 1997 ND 155, 567 N.W.2d 336). We have stated, “The purpose of Rule 41(c), N.D.R.Crim.P., is to protect citizens from being subjected to the trauma of unwarranted nighttime searches. Courts have long recognized that nighttime searches constitute greater intrusions on privacy than do daytime searches.” State v. Schmeets, 278 N.W.2d 401, 410 (N.D.1979).

[¶ 10] When analyzing what constitutes probable cause for a nighttime warrant, we have previously stated,

Although there may be a variety of circumstances that justify the authorization of a nighttime search, we have indicated that probable cause for a nighttime search exists upon a showing that the evidence sought may be quickly and easily disposed of, and we have taken judicial notice that drugs are such evidence.

Knudson, 499 N.W.2d at 875 (citations omitted). To the extent our prior decisions approved a pér-se rule justifying the issuance of nighttime warrants in drug cases, they are overruled. See Herrick, 1997 ND 155, ¶ 21, 567 N.W.2d 336 (overruling per-se rule allowing no-knock warrants in drug cases). “Merely alleging the presence of marijuana and methamphetamine does not allow .one to infer the drugs were easily disposable.” State v. Utvick, 2004 ND 36, ¶ 21, 675 N.W.2d 387. An officer must set forth some facts for believing the evidence will be destroyed other than its mere existence. See Herrick, at ¶ 23 (noting an insufficiency of proof when an officer offered no reason for the no-knock warrant other than the drugs were easily disposable).

[¶ 11] In State v. Berger, 285 N.W.2d 533 (N.D.1979), we concluded a nighttime warrant was properly issued when the “property sought would probably be removed or destroyed because it could be easily disposed of if the search warrant was not promptly served.” Id. at 539. The evidence- sought included marijuana and marked bills used to purchase marijuana from Berger earlier that night. Id. at 534-38. A survey of other jurisdictions reveals similar justifications for nighttime warrants. See, e.g., Arizona v. Jackson, 117 Ariz. 120, 571 P.2d 266, 268 (1977) (finding nighttime warrant proper when presented with evidence of nighttime drug sales); Arizona v. Eichorn, 143 Ariz. 609, 694 P.2d 1223, 1227-28 (Ct.App.1984) (finding evidence of two suspected prior nighttime drug sales, rather than mere allegations drugs are sold at night, was sufficient for a nighttime warrant because the drugs might not be there in the morning); Idaho v. Fowler, 106 Idaho 3, 674 P.2d 432, 439-40 (Ct.App.1983) (finding a nighttime warrant was properly issued when surveillance established nighttime drug sales, and it was reasonable to believe the drugs might not be present by daybreak); People v. Walker, 250 Cal.App.2d 214, 58 Cal.Rptr. 495, 498 (1967) (finding a nighttime warrant was proper when the defendant was not home during the day and often took the drugs with him); People v. Mardian, 47 Cal.App.3d 16, 121 Cal.Rptr. 269, 281-82 (1975) (finding a nighttime warrant was proper when defendant was moving the contraband and would be gone by six a.m.).

[¶ 12] In Fields’ case, the magistrate authorized the nighttime warrant because of “the odd hours maintained by the subject, and the propensity to violence demonstrated by the subject.” Fields keeping odd hours is insufficient to justify a nighttime warrant. Rule 41(d), N.D.R.Crim.P., does not require the defendant’s presence during the execution of the warrant. The “odd hours” Fields kept were irrelevant because the warrant could have been executed whether or not he was actually present in his home. Furthermore, in People v. Watson, 75 Cal.App.3d 592, 142 Cal.Rptr. 245 (1977), the court found a defendant’s late and inconsistent hours was not a sufficient justification for a nighttime warrant. Id. at 246-48. The court noted the officer had no information indicating the evidence would not be there in the morning.. Id. at 248. Likewise, Fields’ odd hours cannot support a finding of probable cause for the nighttime warrant. See id.; N.D.R.Crim.P. 41(d).

[¶ 13] The magistrate also noted Fields’ propensity for violence as a justification for the nighttime warrant. However, the record does not support this conclusion." The only evidence the magistrate could have relied on for support is the gun obtained during the prior illegal search of Fields’ vehicle. Generally, the mere belief firearms are present in a home, without any other supporting evidence, is insufficient to justify a nighttime warrant. Cf. State v. Johnson, 1999 ND 33, ¶ 12, 590 N.W.2d 192 (noting, standing alone, a reasonable belief a firearm is present is not enough to justify a no-knock warrant). The magistrate was not presented with any corroborating evidence showing Fields had a propensity for violence through a prior violent criminal history or other supporting information. The nighttime warrant cannot be justified ’by Fields’ purported propensity for violence when it is unsupported by the record.

[¶ 14] Therefore, considering the totality of circumstances, the -officer did not meet the burden necessary to demonstrate the need for a nighttime warrant. On this record, there is no evidence to support a finding of probable cause for a nighttime warrant." We conclude the search was unreasonable because probable cause for the nighttime warrant, as required under N.D.R.Crim.P. 41(c)(1), did not exist. The evidence obtained as a result of the unwarranted nighttime search must be suppressed.

IV

[¶ 15] Because the nighttime warrant was not supported by probable cause, we affirm the trial court’s order suppressing the evidence obtained from the May 15, 2003, nighttime search of Fields’ home.

[¶ 16] MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 17] I concur in the majority opinion. We rely on or distinguish many of our precedents involving “no-knock” warrants in deciding the issue of the validity of a search warrant authorizing a nighttime search. Indeed, much of the underlying constitutional rationale is the same, and, under our current statutes and rules, probable cause is required for both the “no-knock” and nighttime search warrants. We have rejected a per-se rule justifying a “no-knock” warrant and we now reject a per-se rule on the issuance of nighttime warrants.

[¶ 18] I write separately to note that while we reject the per-se presumption that drugs are “easily disposed of” to justify either the “no-knock” or nighttime search warrant, the term “easily disposed of’ has significantly different temporal meanings in the two contexts. In the “no-knock” warrant the term “easily disposed of’ refers to the ability to dispose of drugs in the very brief time between the knock and the entry if a knock were required. In the context of the nighttime search warrant the time which would elapse between execution and the entry, if no nighttime search warrant were issued, is much greater and the term “easily disposed of’ logically refers to disposition other than, for example, flushing down the toilet or swallowing the drug. Thus evidence that a subject of a search warrant consumed or delivered drugs within a few hours of their receipt or made deliveries in the nighttime hours would justify issuance of a nighttime search warrant. Perhaps that is what the magistrate, relying on similar words Officer Eisenmann used in testifying at the hearing on the Application for Search Warrant, meant in this instance when authorizing the nighttime warrant because of “the odd hours maintained by the subject. ...” However that is far from clear to me and it would be speculation at best to determine that is what the officer or magistrate meant and, further, that meaning would not be substantiated by .the evidence offered in support of the Application.

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


author: MARING, Justice. SANDSTROM, J.,

text:
    2005 ND 9
    Michael E. SCHMIDT, Plaintiff and Appellant v. Kelley BAKKE, f/k/a Kelley Jo Schmidt, Defendant and Appellee.
    No. 20030377.
    Supreme Court of North Dakota.
    Jan. 19, 2005.

      Patti J. Jensen, Galstad, Jensen & McCann, PA, East Grand Forks, MN, for plaintiff and appellant.
    Mary Ellen Seaworth, Howe & Sea-worth, Grand Forks, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Michael Schmidt appeals a district court order granting Kelley Bakke’s request to move two of their four children to Belle Plaine, Minnesota. We affirm.

I

[¶ 2] Schmidt and Bakke were married in November 1985 and divorced in February 1993. They had four children during their marriage. After the divorce, Bakke lived in Larimore and had permanent custody of the four children. Schmidt had liberal visitation rights and continued to live in the parties’ original farmhouse near Larimore. Bakke has remarried since the divorce and has one minor child with her new husband.

[¶ 3] Bakke petitioned the district court on September 17, 2003, to move the three younger children to Belle Plaine, Minnesota, after Schmidt refused to consent to the move. Their eldest son lived with Schmidt during the summer of 2003 to accommodate his employment and continued to live with Schmidt after he reached the age of majority in August 2003. He graduated from Larimore High School in 2004. After learning of Bakke’s desire to move to Belle Plaine, the second-eldest child, who was 15 years old at the time of the hearing, expressed a preference to stay in Larimore and live with his father so he could finish high school in Larimore. Bakke consented to the change of custody, and both older siblings have been living with Schmidt since the summer of 2003. After Bakke agreed to the change of custody, her petition to move to Belle'-Plaine concerned only the two younger children, who were 12 and 9 years old at the time of the trial.

[¶ 4] At the hearing on the proposed move, Bakke testified that the company she was working for in Grand Forks, North Dakota, had closed and relocated to Bloomington, Minnesota, and she could continue working for the company at the new location. Bakke testified Belle Plaine is only about 20 minutes from Blooming-ton, and the new position will pay her $6.45 more per hour than she was earning at her job in Grand Forks. Bakke also testified her new husband was working in the Minneapolis area, and moving to Belle Plaine would eliminate the need for him to commute between Minneapolis and Grand Forks. Bakke testified Belle Plaine is a smaller community that provides many of the advantages that living in North Dakota provides, along with other activities facilitated by a larger community.

[¶ 5] The second-youngest child has been diagnosed with attention deficit hyperactivity disorder and , oppositional'defiant disorder. Bakke believes the Belle Plaine. area and school have the resources to accommodate his disorders, including a community center, a YMCA center, and extracurricular activities'such as tae kwon do, which was recommended by his doctor as a self-esteem builder.

[¶ 6] Schmidt argued the move is not in the children’s best interest, because all of the activities touted as a benefit by Bakke are also available in the Larimore and Grand Forks area. Schmidt also contended the relocation was not financially viable, because of a large restitution order resulting from the criminal conviction of Bakke’s new husband’s employer, and Schmidt argued the district court should have admitted evidence of the criminal restitution order. Schmidt also argued that any advantage of Bakke’s following her most recent employer was negated by her history of frequent job changes, Bakke having changed employment 10 to 12 times since she graduated from high school. He also argued that separating the siblings would be detrimental to the younger brothers, especially to the second-youngest child because of his need for stability and a strong sibling relationship.

[¶ 7] The district court ruled the two younger children could move with Bakke to Belle Plaine, Minnesota, because the move would benefit both Bakke and the children under the Stout-Hawkinson factors. See Stout v. Stout, 1997 ND 61, 560 N.W.2d 903; Hawkinson v. Hawkinson, 1999 ND 58, 591 N.W.2d 144. Under the first Stout-Hawkinson factor, the district court cited Belle Plaine’s additional social, recreational, and academic opportunities for the two boys and said Bakke will not have to drive them around after work because these activities will be close to their home. The district court also said the job in Minneapolis is the difference between no job and a $16.50-per-hour job because of the closing of the Grand Forks plant. The district court found there was no improper motive under the Stout-Hawkinson second and third factors, and stated it believed Bakke would comply with the Stout-Hawkinson fourth factor by adhering to a new visitation agreement.

II

[¶ 8] Bakke contends Schmidt failed to adequately raise or preserve his objection to her move to Minnesota. Bakke argues Schmidt’s response to her “Motion to Move Out of the State of North Dakota” and supporting brief was improper because he responded with a “Brief in Support of Motion for Temporary Order, Change of Custody and Suspending Child Support.” Schmidt’s brief was not accompanied by a motion or notice of service, and Bakke argues it thus fails under N.D.R.Ct. 3.2.

[¶ 9] Rule 3.2(a), N.D.R.Ct., provides, in part:

Notice must be served and filed with a motion. The notice must indicate the time of oral argument, or that the motion will be decided on briefs unless oral argument is timely requested.

[¶ 10] To effectively appeal any proper issue, a party must have raised the matter in the district court so that the court could rule on it, and a failure to object to an irregularity at trial is a waiver of the issue. Kautzman v. Kautzman, 2008 ND 140, ¶ 10, 668 N.W.2d 59 (citing Piatz v. Austin Mut. Ins. Co., 2002 ND 115, ¶ 7, 646 N.W.2d 681).

[¶ 11] Rule 3.2(b), N.D.R.Ct., provides:

Failure to file a brief by the moving party may be deemed an admission that, in the opinion of party or counsel, the motion is without merit. Failure to file a brief by the adverse party may be deemed an admission that, in the opinion of party or counsel, the motion is meritorious. Even if an answer brief is not filed, the moving party must still demonstrate to the court that it is entitled to the relief requested.

[¶ 12] “ ‘Although a party who fails to respond or make an appearance assumes a substantial risk that the trial court will act favorably on the motion, the moving party has the burden of demonstrating to the trial court’s satisfaction that he is entitled to the relief requested.’ ” Follman v. Upper Valley Special Educ. Unit, 2000 ND 72, ¶ 15, 609 N.W.2d 90 (quoting City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 774 (N.D.1996)). A district court does not abuse its discretion by not considering an untimely response an admission. State v. Haverluk, 2000 ND 178, ¶ 27, 617 N.W.2d 652. In Haverluk, the defendant argued this Court should affirm the district court’s holding because the State did not comply with N.D.R.Ct. 3.2(a) and N.D.R.Civ.P. 6(e). Id. at ¶ 25. We held the State assumed the risk of an unfavorable action by not responding on time with a brief, but the defendant still had to demonstrate he was entitled to the relief requested. Id. at ¶ 27.

[¶ 13] The district court never ruled on Bakke’s objection to Schmidt’s possibly untimely response and continued to hold hearings on the relocation motion. Bakke also said in her opening statements, after the court asked her where they were procedurally, that she would waive her objection to the timeliness of Schmidt’s response.

[¶ 14] We hold Schmidt preserved his right to appeal because the district court did not consider Schmidt’s response to be untimely and because it continued to hold hearings regarding the motion in which Schmidt objected to the move. Bakke, furthermore, waived any right she had to object to the timeliness of the motion when she told the district court, during opening statements, that she would waive her objection to the issue of timely response.

III

[¶ 15] The custodial parent has the burden of proving, by a preponderance of the evidence, that a move is in the best interest of the child. Dickson v. Dickson, 2001 ND 157, ¶ 7, 634 N.W.2d 76. A district court’s decision whether a proposed move to another state is in the best interest of a child is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Id. at ¶ 8. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there 'is some evidence to support it, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made.” Keller v. Keller, 1998 ND 179, ¶ 10, 584 N.W.2d 509.

IV

[¶ 16] Schmidt argues the district court improperly found it was in the children’s best interest for them to move to Minnesota with their mother.

[¶ 17] North Dakota statute requires a custodial parent to seek court approval to move out of state with the children if the noncustodial parent refuses to consent to the move. N.D.C.C. § 14-09-07. The statute and its application are based on the “best interest of the child” standard. Hearing on H.B. 1585 Before the Senate Social Welfare & Veterans Affairs Commn., 46th N.D. Legis. Sess. (March 2, 1979) (testimony of Rep. Wayne Stenehjem, co-sponsor of bill); Burich v. Burich, 314 N.W.2d 82, 85 (N.D.1981); Stout, 1997 ND 61, ¶ 13, 560 N.W.2d 903; Negaard v. Negaard, 2002 ND 70, ¶ 7, 642 N.W.2d 916.

In every relocation dispute, the court must try to accommodate the competing interests of the custodial parent who desires to seek a better life for herself and the children in a different geographical area; the child’s interest in maintaining a meaningful relationship with the noncustodial parent; the noncustodial parent’s interest in maintaining a meaningful relationship with the child; and finally, the state’s interest in protecting the best interests of the child.

Stout, 1997 ND 61, ¶ 32, 560 N.W.2d 903. Our Court has held the relevant factors in evaluating whether a custodial parent should be allowed to move children out of state are:

1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life, .
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the move,
4.The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

Hawkinson, 1999 ND 58, ¶¶ 6, 9, 591 N.W.2d 144. No.single factor is dominant, and a minor factor in one case may have a greater impact in another.. Hentz v. Hentz, 2001 ND 69, ¶ 7, 624 N.W.2d 694.

[¶ 18] An analysis of the best interests of the child in a relocation case involves a weighing of the advantages and disadvantages of a move while recognizing the importance of maintaining continuity and stability. Hawkinson, 1999 ND 58, ¶ 11, 591 N.W.2d 144. Therefore, the effect of the separation of siblings is a consideration in the trial court’s analysis of the best interests of the child and whether to grant a motion to relocate a child out of this state. The Stout-Hawkinson factors are to be applied by the trial courts in relocation cases with the best interests of the child remaining the trial court’s primary concern. Stout, 1997 ND 61, ¶ 34, 560 N.W.2d 903.

[¶ 19] Our Court has said that the preference of a mature child should be considered in determining a child’s best interests. Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 11, 562 N.W.2d 390. We have also said it should be considered in the context of a motion to remove a child from the state. Sumra v. Sumra, 1997 ND 62, ¶ 14, 561 N.W.2d 290 (holding the preference of a child is a consideration in determining the best interests of a child in deciding a motion to relocate a child).

[¶ 20] It is true that “[a]s a general rule the courts do not look favorably upon separating siblings in custody cases.” BeauLac, v. BeauLac, 2002 ND 126, ¶ 16, 649 N.W.2d 210. We have not prohibited, however, the separation of children in every case and have affirmed the separation of siblings in a number of cases where children of sufficient maturity have stated preferences. See id. (affirming the trial court’s decision to have the daughter remain in her father’s custody and the son in his mother’s custody, even though the mother moved with the son from Minot to Bismarck); Loll v. Loll, 1997 ND 51, 561 N.W.2d 625 (affirming the trial court’s decision to split custody of twins, based upon the children’s preferences, where one parent lived in North Dakota and one lived in Missouri); Freed v. Freed, 454 N.W.2d 516 (N.D.1990) (affirming a trial court’s decision to separate two children primarily because the 15-year-old son stated a strong preference to live with his father). But see McAdams v. McAdams, 530 N.W.2d 647 (N.D.1995) (reversing the trial court’s splitting custody of the parties’ two children because the parent awarded custody would likely continue to alienate child from the mother); Leppert v. Leppert, 519 N.W.2d 287 (N.D.1994) (reversing the trial court’s decision to separate the children between the mother and the father in part because of the mother’s poisoning of the children’s minds against the father).

[¶ 21] In the present case, Bakke had original custody of all four of the parties’ children. In her motion to relocate, she requested that all three minor boys be allowed to relocate with her. After her motion, the second-eldest boy, who was then 15 years old, stated a preference to remain with his father so that he could finish high school in Larimore. Bakke agreed to stipulate to a change of custody to Schmidt. We recognize that this is not an initial custody determination. The trial court’s analysis is made in the context of a motion to relocate with the children in Bakke’s custody. Under the facts of this case, to deny a motion to relocate without more, would place the outcome in the hands of a 15-year-old, who after learning of the motion decides he does not want to move so he can complete high school with his friends.

[¶ 22] Although the issue of separating siblings was raised, the evidence in the record of the relationship between the 15-yearTold and his two younger brothers, age 12, and age 9, is lacking in detail and substance. There is no evidence they spend a substantial amount of time together or share any activities or interests. When Schmidt was asked about the impact of the move on the children he merely said: “[T]he relationship wouldn’t be as strong and they both look up to their older brother very much.” He then added: “I shouldn’t say they play together because there’s such an age difference but they horse around together when they are at my place. I’m sure they will miss each other.” This is not persuasive evidence upon which to deny a relocation motion. Further, the argument that the move will have a harmful effect is made against the backdrop of the parents stipulating to the separation of the children with the 15-year-old living with his father and the two younger boys living with their mother, stepfather, and half-sister. The record indicates that at the time of trial, the boys had been living apart already since the summer of 2003 and would not have been living together in any event. They perhaps would have seen one another through visitations with their parents, which is the same occasion they will see one another under the trial court’s order. As admitted by their father, the boys have quite an age difference. Within two years, it is conceivable the 15-year-old will graduate from high school and leave Larimore to further his education elsewhere and the boys could be separated by more than a four-hour drive. Here, the likelihood of the 15-year-old living in the same household with his younger brothers for any appreciable time is remote. Finally, it was the 15-year-old’s stated preference not to move with his mother, two younger brothers, and half-sister. Again, a decision with which his parents agreed.

[¶ 23] The trial court recognized the preference of the 15-year-old to live with his father, which is in accordance with our case law regarding separation of siblings and preferences of a mature child. The trial court in its analysis stated: “[Schmidt] believes that this court should hesitate to separate the children from one another.” The trial court then stated: “Dr. Yager [sic] felt that the children could adapt.” Dr. Yeager is a clinical psychologist, who testified that she has worked with the parties’ 12-year-old son. She was asked on direct examination whether a move would be harmful to him. She testified that “given the fact that he’s a kid, moves are typically stressful for kids as they are for anyone in the family. I would expect that, you know, ... it would cause some stress.” She went on to testify that she would expect some deterioration in the 12-year-old’s behavior for a time, but that she would expect that he would return to his baseline just like other kids do. She was told at trial that the 15-year-old would remain with his father in North Dakota. Although perhaps, we would prefer to have more of an analysis than the trial court made on this particular issue, it is clear that the trial court did consider the fact that relocation would separate the siblings and the effect it would have on them.

[¶ 24] The trial court gave the effect of separation of siblings proper consideration in the context of a relocation motion and on the record of this case. We, therefore, affirm the trial court’s order granting Bakke’s motion to relocate.

Y

[¶ 25] Schmidt argues the district court erred by denying his request to enter into evidence a certified copy of a criminal conviction against the employer of Bakke’s new husband.. The district court ruled the evidence was not admissible because it was not relevant.

[¶ 26] Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be vvithout the evidence.” N.D.R.Ev. 401; Interest of Lukens, 1998 ND 224, ¶ 11, 587 N.W.2d 141. A district court has broad discretion when ruling whether proffered evidence is relevant, and we will not reverse that decision absent a showing of an abuse of discretion. Lukens, at ¶ 12. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Id.

[¶ 27] Schmidt claims the restitution judgment in the sum of $363,916.76 against Bakke’s husband’s employer is evidence the couple’s move to the Minneapolis area is not financially feasible. Schmidt says this evidence is relevant to show the stability of the income to the Bakke family.

[¶ 28] Bakke claims this evidence is not relevant and Schmidt failed to make a proper offer of proof. Bakke claims the context of Schmidt’s request for an offer of proof shows it was not made to preserve evidence for appellate review but was rather a statement taking exception to the district court’s exclusion of the evidence. Schmidt asked the district court to have the record reflect the exhibit as an offer of proof.

[¶ 29] North Dakota Rules of Evidence require the parties to create a record that will permit informed appellate review. Wagner v. Peterson, 430 N.W.2d 331, 333 (N.D.1988) (citing N.D.R.Ev. 103(a)(2), Explanatory Note). This Court recognizes the necessity of an offer of proof in order to review a district court’s exclusion of evidence. Wagner, at 333 (citing Estate of Kjorvestad, 375 N.W.2d 160, 167 (N.D.1985)). Without an offer of proof, we are unable to determine whether the exclusion of testimony was prejudicial to the appellant. Wagner, at 333. “No offer of proof is needed, however, if the substance of the evidence was apparent from the context within which questions were asked.” Id. at 332 (citing N.D.R.Ev. 103(a)(2)). The language of Rule 103(a)(2) may excuse the failure to make an offer of proof if the question was in proper form on its face and was so framed as to clearly admit an answer favorable to the claim or defense of the party producing it. Wagner, at 332-33.

[¶ 30] We conclude Schmidt properly preserved this issue for appeal and the district court did not abuse its discretion by not allowing the judgment into evidence.

Vi

[¶ 31] The order of the district court is affirmed.

[¶ 32] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, and CAROL RONNING KAPSNER, JJ., concur.

SANDSTROM, J.,

dissenting.

[¶ 33] I agree with the majority that the separation of siblings properly should be considered in move-away cases. I disagree with the majority’s assertion that the district court considered the negative effect of separating siblings or that the district court knew it should or even could consider those effects. The separation of siblings has not previously been enunciated as a consideration under the move-away factors set forth in Stout and modified in Hawkinson. See Stout v. Stout, 1997 ND 61, 560 N.W.2d 903; Hawkinson v. Hawkinson, 1999 ND 58, 591 N.W.2d 144. Therefore, I respectfully dissent.

I

[¶ 34] The majority relies heavily on Dr. Yeager’s testimony to support its conclusion that proper consideration was given to the effect of separating the siblings.

[¶ 35] Dr. Yeager’s testimony was related to how the second-youngest child would cope with the move, given his attention deficit hyperactivity and his oppositional defiant disorder, not to his ability to adjust to life without his older siblings. The line of questioning was related to how the new school and community would affect him and whether he would be able to adjust to the new environment. Dr. Yeager’s testimony also indicates she is unsure how he will cope with the move.

Question: Do you have any opinion in whether a move would be harmful to [the second-youngest child]?
Answer: You know, I can’t really. I don’t really feel like I can say very specifically what a move would be like for him because I don’t have anything to base it on. Since I’ve known him he’s never moved. I don’t have anything that would specifically tell me yes or no with [the second-youngest child]. I would say given his, you know, .given the fact that he’s a kid, moves are typically stressful for kids as they are for anyone in the family. I would expect that, you know, he would, he would, be, it would cause some stress. We might see some deterioration in his behavior for a time. I don’t have any reason to believe, though, that he wouldn’t eventually. Just like most kids do. I think that given the previous behavioral kind of difficulties he’s had, whatever deterioration in his behavior might be somewhat more significant for him but, again, I would expect that he would return to his baseline just like other kids do.

[¶ 36] The testimony from Dr. Yeager regarding the family relationship seems, if anything, to indicate that separation from his father and siblings may be negative.

Question: And you [Dr. Yeager], ... talk[ ] about with regard to [the second-youngest child’s] relationship with family members?
Answer: Mm-hmm.
Question: You go on, “his relationship with his mother and stepfather is quite strained and as mentioned above, he tends to direct a lot of negativity and defiance towards his stepfather.”
Answer: Mm-hmm.
Question: “His mother also has had difficulties in managing his behaviors and [the second-youngest child’s] relationship with her has been stressed as a result.”
Answer: Mm-hmm

[¶ 37] Dr. Yeager’s testimony is not in regard to how well the child will cope with being separated from his siblings. It seems, conversely, to indicate that being separated from his father and the rest of his siblings may adversely affect him.

[¶ 38] The majority attempts to bolster Dr. Yeager’s testimony by saying that she was told at the trial that the second-eldest child would remain with his father in North Dakota. The transcript indicates she did not know until she was told during the trial — after the testimony relied on by the majority — that the second-eldest brother would be separated from the younger siblings. The testimony relied on by the majority is located on page 202 of the transcript while Dr. Yeager’s following testimony is located on pages 221 and 222 of the transcript:

Question: And are you aware what agreements have been reached with respect to the relocation of any of the other siblings?
Answer: I believe that one sibling was old enough to decide where he was going to stay and he preferred to stay back. Other than that I don’t know.
Question: If I told you there’s been an agreement placed on the record in the courtroom that of the four Schmidt children between my client and Ms. Bakke two of them will remain with their father and the parties are in dispute about where the other two will be or whether the relocation will be allowed.
Answer: Mm-hmm.
Question: So there would be two boys here, it would be [the second-youngest child] and his younger brother that she’s asking to relocate.
Answer: Okay.
Question: And then you understand that [Schmidt] has another child here, correct?
Answer: Yes.
Question: And that Ms. Bakke has another child?
Answer: Mm-hmm.
Question: So all you knew was that one child was staying behind, correct?
Answer: That’s all I knew although I know that there had been some — I know that given the other boy’s age that moving was going to be, would maybe be difficult and I didn’t know that there had been any agreement about where he would go.

[¶ 39] Dr. Yeager did not testify to the effect the separation would have on the siblings, and the record reflects that she did not even know the second-eldest boy was going to stay with Schmidt before she was told during the trial by Schmidt’s lawyer. This is not enough relevant testimony to conclude whether the separation would harm the children.

II

[¶ 40] The majority concludes the “trial court gave the effect of separation of siblings proper consideration in the context of a relocation motion and the record of this case.” The district court mentioned only that “[Schmidt] believes that this Court should hesitate to separate the children from one another.” That is all the district court said about the issue; there is no discussion, analysis, finding, or ruling on it. The district court merely reiterated Schmidt’s concern that the separation would harm the siblings. This highlights how important'it was for the district court to determine how the separation may affect the siblings.

[¶ 41] The district court’s failure to consider the effects of separating the siblings is evident when viewing this Court’s past holdings. This Court has generally looked unfavorably upon decisions that result in splitting siblings. BeauLac v. BeauLac, 2002 ND 126, ¶ 16, 649 N.W.2d 210 (citing Leppert v. Leppert, 519 N.W.2d 287, 291 (N.D.1994)); McAdams v. McAdams, 530 N.W.2d 647, 650 (N.D.1995).

[¶ 42] In cases involving relocation, this Court has long emphasized the importance of maintaining the continuity and stability of the family. Hawkinson v. Hawkinson, 1999 ND 58, ¶ 11, 591 N.W.2d 144; see, e.g., Paulson v. Bauske, 1998 ND 17, ¶¶ 10-12, 574 N.W.2d 801; Thomas v. Thomas, 446 N.W.2d 433, 435 (N.D.1989); Novak v. Novak, 441 N.W.2d 656, 658 (N.D.1989).

[¶ 43] Other courts have generally held that siblings should not be separated in a relocation proceeding. See In re Paternity of B.D.D., 779 N.E.2d 9 (Ind.Ct.App.2002) (custody should be transferred from mother to father, if mother moved out of state, in order to keep the siblings together); Richardson v. Richardson, 802 So.2d 726 (La.App.2001) (in a relocation case, under the best-interest-of-the-child standard, the trial court erred in determining the interests of the children could be served by splitting their custody); In re Williams, 88 Cal.App.4th 808, 105 Cal.Rptr.2d 923 (2001) (reversing a lower court order splitting the children and ruling one parent should be awarded custody of both children if the other parent moves out of state); In re Thielges, 623 N.W.2d 232 (Iowa Ct.App.2000) (the court will not separate an older sibling from her younger sibling despite the older sibling’s preference not to move).

[¶ 44] In light of this Court’s consistent hesitation, and the number of other courts denying the separation of siblings in a relocation motion, the district court’s reiteration that Schmidt is concerned with the separation falls far below the proper and necessary consideration needed to determine the best interest of the children. To ensure proper consideration is given to the decision to separate the siblings, I would require the district court to include “the potential negative effect of separating siblings” as a relevant factor that must be considered along with the other factors identified in Stout and modified in Hawkinson.

[¶ 45] Because the district court did not consider .and reach a conclusion whether the separation of the siblings would have a- negative effect on them, I would reverse and remand this case to ensure the move is in the best interest of the children.

[¶ 46] DALE V. SANDSTROM


text:
    2005 ND 14
    STATE of North Dakota, Plaintiff and Appellant v. Grady JACKSON, Defendant and Appellee.
    No. 20040199.
    Supreme Court of North Dakota.
    Jan. 19, 2005.
    Lloyd C. Suhr, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellant.
    Susan Schmidt, Bismarck, N.D., for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] The State appeals from the district court’s memorandum opinion and order granting Jackson’s motion to suppress evidence. We reverse and remand for further proceedings.

I

[¶ 2] Grady Jackson was driving to work at approximately 3:00 a.m. Officer Roger Marks observed Jackson’s vehicle and mistakenly believed the license plates indicated the vehicle was stolen. In verifying the license plate number, Officer Marks realized the stolen vehicle’s license plate number was identical or similar to Jackson’s vehicle, except the stolen vehicle plates were Maryland (MD), not North Dakota (ND) as on Jackson’s vehicle. Officer Marks continued to follow Jackson for approximately twelve city blocks. Officer Marks stopped the vehicle after observing what he considered erratic driving. He observed Jackson’s vehicle move into the turning lane and then abruptly return to the driving lane. Subsequent to the stop and investigation that followed, Jackson was charged with driving while under suspension.

[¶ 3] Jackson moved to suppress the evidence obtained from the stop. The dis-triet court granted the motion, finding Officer Marks improperly continued to follow Jackson after determining the vehicle was not stolen.

n

[¶ 4] On appeal, the State argues the distance Officer Marks followed Jackson was not relevant in determining whether the traffic stop was appropriate.

[¶ 5] In State v. Gregg, 2000 ND 154, ¶ 19, 615 N.W.2d 515 (citations omitted), we outlined our review of a motion to suppress.

When reviewing a district court’s ruling on a motion to suppress, we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. We affirm the district court’s decision unless we conclude there is .insufficient competent evidepce to support the decision, or unless, the decision goes against 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. Overby, 1999 ND 47, ¶ 5, 590 N.W.2d 703.

[¶ 6] The district court granted the motion to suppress, finding it was improper for Officer Marks' to continue following Jackson’s vehicle once the officer knew there was no valid reason for a stop. We have previously declined to hold it unreasonable, as a matter of law, for an officer to follow a vehicle for a distance before making a stop. See State v. Loh, 2000 ND 188, ¶ 13, 618 N.W.2d 477; Johnson v. North Dakota Dep’t of Transp., 530 N.W.2d 359, 361 (N.D.1995). We have noted it would be “unwise for us to attempt to craft a bright-line rule limiting the distance an officer may follow a driver, suspected of violating the law, before initiating a stop.” Johnson, 530 N.W.2d at 361. Our research has not uncovered any jurisdiction limiting the distance an officer may follow a vehicle before making a traffic stop. Officer Marks’ act of following Jackson for approximately twelve city blocks does not abrogate any legally sufficient basis for the stop.

III

[¶ 7]. We reverse the district court’s order suppressing the evidence obtained during the stop and remand for further proceedings consistent with this opinion.

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