author: SANDSTROM, Justice. KAPSNER, Justice,

text:
    2003 ND 108
    STATE of North Dakota, Plaintiff and Appellee, v. Anthony Charles MATTHEWS, Defendant and Appellant.
    No. 20020261.
    Supreme Court of North Dakota.
    July 16, 2003.
    Rehearing Denied Aug. 20, 2003.

      Mark R. Boening, Assistant State’s Attorney, Fargo, N.D., for plaintiff and ap-pellee.
    Steven D. Mottinger of Johnson, Ram-stad & Mottinger, PLLP, Fargo, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Anthony Charles Matthews appealed from a criminal judgment entered following conditional pleas of guilty for possession of a controlled substance with intent to deliver and possession of drug paraphernalia. We affirm the judgment of the trial court, concluding that under the circumstances, law enforcement officers were able to enter Matthews’ residence and conduct a warrantless search for information under the emergency doctrine.

I

[¶ 2] In the early morning hours of October 24, 2001, a dispatcher at the Fargo Police Department received a 911 emergency call from a woman reporting that two men were being held at gunpoint at “some farm house on [sic] Horace.” The two men reported as being held in Horace by four or five individuals with guns were B. Murray and his boss, later identified as Anthony Matthews. The caller identified herself as Murray’s mother-in-law. The caller said Murray was crying and called her house because the gunmen were allowing him an opportunity to make one last phone call to say goodbye. The caller told the dispatcher that Murray’s boss was “in the garage ... with guns to his head.” The caller informed the dispatcher that Murray worked for a company called “Leak Seekers” and Murray and his boss “went to collect or something for a job.”

[¶ 3] The dispatcher called the telephone company to place a trace on the caller’s telephone in order to determine where Murray’s call had originated. While waiting for the phone company to trace the call, the dispatcher learned Leak Seekers was owned by Anthony Matthews. A description of the two cars registered to Matthews was relayed to the Cass County Sheriffs Department so deputies could begin looking for the cars in the Horace area. Fargo police officers were also dispatched to the location of Matthews’ business, which was at his home. When the police officers arrived at Matthews’ residence, they found neither of Matthews’ registered cars, but Murray’s girlfriend’s car was parked outside. Lights were on in the house, but no one answered the door when the officers knocked. Officers could hear Matthews’ telephone ringing inside when a dispatcher called to try to make contact, but no one answered the phone. The officers looked in Matthews’ garage and did not report anything suspicious to Sergeant Pallas, who was the shift commander that morning and was investigating the case at the police department. After the officers relayed to Sergeant Pallas what they observed at Matthews’ residence, they left the house.

[¶ 4] The phone company reported to the dispatcher that it was unable to trace the phone call from Murray. Sergeant Pallas decided the police had to enter the home to gain information or to check for possible victims. Three officers met Sergeant Pallas at Matthews’ house and entered the home without a search warrant, approximately 30 to 45 minutes after the dispatcher received the 911 call. Once inside the house, Sergeant Pallas started looking for business records that might show a client located in the Horace area. Sergeant Pallas directed the other officers to search the house to see whether either the victims or the gunmen were inside and to look for any business records that might identify the Horace location. In an upstairs bedroom located at the front of the house, an officer discovered marijuana in a clear plastic bag on a glass mirror on the floor. Lying next to it on the floor were a digital scale and plastic packaging for two or three marijuana bricks, which appeared to the officers to have recently contained marijuana. Another officer found a black plastic garbage bag containing 12 to 15 bundles of marijuana in the bedroom closet. Following these discoveries, the police secured a search warrant for the house. During the search, officers seized marijuana and other evidence of drug activity.

[¶ 5] Claiming an unlawful search, Matthews moved to suppress any evidence found during the warrantless search of his home and any evidence obtained in the execution of the search warrant. The trial court denied Matthews’ motion to suppress. Matthews entered conditional pleas of guilty to the charges, reserving his right to challenge the trial court’s denial of the suppression motion under N.D.R.Crim.P. 11(a)(2). After conditionally pleading guilty, Matthews appealed the criminal judgment entered following the trial court’s memorandum opinion and order denying the motion to suppress.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 7] Matthews argues the evidence seized in his house should have been suppressed because the State did not meet its burden to prove the warrantless search was justified by an exception to the warrant requirement. Matthews contends the information provided by the 911 call and the details the officers discovered while investigating at Matthews’ residence indicated that no one was at the residence, and the officers did not have probable cause.

[¶ 8] 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. City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 774 (N.D.1996). We affirm the district court’s decision unless, after resolving conflicting evidence in favor of affirmance, we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence. City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). “That standard of review recognizes the importance of the trial court’s opportunity to observe the witnesses and assess their credibility, and we ‘accord great deference to its decision in suppression matters.’” State v. Bjornson, 531 N.W.2d 315, 317 (N.D.1995) (quoting State v. Brown, 509 N.W.2d 69, 71 (N.D.1993)). “Questions of law are fully reviewable.” State v. Zimmerman, 529 N.W.2d 171, 173 (N.D.1995).

[¶ 9] The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Article I, section 8, of the North Dakota Constitution protect individuals from unreasonable searches and seizures. City of Jamestown v. Dardis, 2000 ND 186, ¶ 8, 618 N.W.2d 495. The Fourth 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 the plain language of the first clause of the Fourth Amendment condemns unreasonable searches or seizures conducted without a warrant. Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

[¶ 10] “[I]f an individual has a reasonable expectation of privacy in the area searched or the materials seized, then a search and seizure within the protection of the Fourth Amendment has been conducted.” Lubenow v. N.D. State Highway Comm’r, 438 N.W.2d 528, 531 (N.D.1989); see Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The United States Supreme Court has indicated a “basic principle of Fourth Amendment law” is that warrantless searches and seizures inside a home are presumptively unreasonable. Payton, 445 U.S. at 586, 100 S.Ct. 1371. Nevertheless, the Fourth Amendment’s prohibition of searches inside a home without a warrant is not absolute. Searches and seizures without a warrant are not unreasonable under the Fourth Amendment if the government can show the search or seizure falls under one of the well-delineated exceptions to the search warrant requirement. State v. DeCoteau, 1999 ND 77, ¶ 7, 592 N.W.2d 579.

[¶ 11] One such exception is that law enforcement officers may enter a home and conduct a warrantless search if both probable cause and exigent circumstances exist. Kirk v. Louisiana, 536 U.S. 635, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002); Payton, 445 U.S. at 589-90, 100 S.Ct. 1371; United States v. Davis, 785 F.2d 610, 615 (8th Cir.1986).

[¶ 12] This Court has said, “ ‘Probable cause exists when the facts and circumstances within a police officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed.’ ” State v. Kolb, 239 N.W.2d 815, 817 (N.D.1976) (quoting Witte v. Hjelle, 234 N.W.2d 16, 17-18 Syllabus 3 (N.D.1976)). The Eleventh Circuit in United States v. Holloway, 290 F.3d 1331, 1337-38 (11th Cir.2002), however, articulated how the probable-cause element differs in cases in which law enforcement officers enter a residence due to an emergency:

In emergencies, however, law enforcement officers are not motivated by an expectation of seizing evidence of a crime. Rather, the officers are compelled to search by a desire to locate victims and the need to ensure their own safety and that of the public. See generally Note, The Emergency Doctrine, Civil Search and Seizure, and the Fourth Amendment, 43 Fordham L.Rev. 571, 582 (1975) (“Generally it is not difficult to determine when the emergency doctrine is being applied. The police usually are acting to help a person in distress, not to find evidence of criminal acts.”). Thus, in an emergency, the probable cause element may be satisfied where officers reasonably believe a person is in danger. See Koch v. Town of Brattleboro, 287 F.3d 162 (2d Cir.2002) (stating probable cause for forced entry in response to exigent circumstances requires probability a person is in danger); Tierney v. Davidson, 133 F.3d 189, 196—97 (2d Cir.1998) (holding police officers may enter dwelling without warrant if, based on objective standard, they reasonably believe individual is in distress); Root v. Gauper, 438 F.2d 361, 364-65 (8th Cir.1971) (holding warrantless search based on emergency requires assessment of whether officers reasonably believe such action is necessary).

In Holloway, at 1338, Koch, at 169, Tierney, at 197, and Root, at 363, the officers, without a warrant, entered the residence where the emergency was reported to have occurred or was occurring, and the searches were upheld under the emergency exception.

[¶ 13] “ ‘Unlike exigent circumstances, the emergency exception does not involve officers investigating a crime; rather, the officers are assisting citizens or protecting property as part of their general caretaking responsibilities to the public.’” State v. Muir, 67 WashApp. 149, 835 P.2d 1049, 1053 (1992) (quoting State v. Swenson, 59 Wash.App. 586, 799 P.2d 1188, 1189 (1990)). To the extent that the emergency doctrine has been held to be distinguishable from exigent circumstances, the emergency doctrine does not require probable cause but must be “actually motivated by a perceived need to render aid or assistance.” Id. (citations omitted). Nonetheless, “a warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation.’ ” Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (quoting Terry v. Ohio, 392 U.S. 1, 26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). In addition, “the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.” Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).

[¶ 14] This Court has defined “exigent circumstances as ‘an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.’ ” City of Jamestown v. Dardis, 2000 ND 186, ¶ 15, 618 N.W.2d 495 (quoting State v. Nagel, 308 N.W.2d 539, 543 (N.D.1981)).

[¶ 15] This Court has also recognized the emergency doctrine, noting, in Lubenow v. N.D. State Highway Comm’r, 438 N.W.2d 528 (N.D.1989):

“The emergency doctrine had its origin in a dictum enunciated by Justice Jackson in Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948): ‘There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate’s warrant for search may be dispensed with.’ The Supreme Court later suggested such a situation might occur ‘where the officers, passing by on the street, hear a shot and a cry for help and demand entrance in the name of the law.’ [Citations omitted]. The doctrine has been applied in many varying circumstances....
“For purposes of the instant case, the emergency or exigency doctrine may be stated as follows: police officers may enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance. In applying this doctrine, two principles must be kept in mind. (1) Since the doctrine is an exception to the ordinary Fourth Amendment requirement of a warrant for entry into a home, the burden of proof is on the state to show that the warrantless entry fell within the exception. [Citations omitted]. (2) An objective standard as to the reasonableness of the officer’s belief must be applied.”

Lubenow, at 532 (quoting Root v. Gauper, 438 F.2d 361, 364-65 (8th Cir.1971)). Lubenow involved a police officer’s entry into an open garage to assist a person in apparent physical distress.

[¶ 16] We have set out our standard for reviewing a trial court’s determination of the existence of exigent circumstances, which equally applies to the emergency doctrine:

The district court’s findings of fact are reviewed giving “ ‘due weight to the inferences drawn from those facts by ... judges and law enforcement officers.’ ” United States v. Cooper, 168 F.3d 336, 338 (8th Cir.1999) (citing United States v. Ball, 90 F.3d 260, 262 (8th Cir.1996) (quoting Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996))). “A de novo standard of review is applied to the ultimate determination of whether the facts constitute exigent circumstances ....” Id. at 339. This is similar to our review of probable cause. See State v. Kitchen, 1997 ND 241, ¶¶ 12-13, 572 N.W.2d 106 (we defer to a trial court’s findings of fact in the disposition of a motion to suppress, but whether findings of fact meet a legal standard is a question of law which is fully reviewable).

State v. DeCoteau, 1999 ND 77, ¶ 15, 592 N.W.2d 579.

[¶ 17] The trial court, in denying Matthews’ suppression motion, found an emergency was occurring and exigent circumstances existed to enter Matthews’ home without a warrant because “[t]he police were facing a situation where it was reasonable to assume that the two men could be killed at any minute” and “[t]he officers reasonably believed that the Matthewsf] residence, which coupled as the business address for Leak Seekers, might contain some kind of a record of the underlying debt that the men had gone to collect.” The trial court concluded the circumstances of this case fit the definition of exigent circumstances, stating:

The facts which undergird this conclusion include: (1) a reasonable belief that the two men were being held at gunpoint; (2) that the gunmen had threatened to kill the men in the immediate time frame; (3) that the telephone trace had come up empty; (4) that there were lights on in the residence but no one answered a knock on the door; (5) that there might be someone present on the premises who might know something of the affair; and (6) that unless swift action was take[n], there was a reasonable likelihood that Matthews and Murray would be killed.

[¶ 18] “[T]he Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.” Mincey, 437 U.S. at 392, 98 S.Ct. 2408. Here the police also received a 911 call reporting the emergency. A 911 call reporting an emergency can be enough to support a warrantless search under the exigent circumstances exception, particularly when the caller identifies himself or herself. See, e.g., United States v. Cunningham, 133 F.3d 1070, 1072-73 (8th Cir.1998), cert. denied, 523 U.S. 1131, 118 S.Ct. 1823, 140 L.Ed.2d 960 (1998); United States v. Richardson, 208 F.3d 626, 630 (7th Cir.2000).

A 911 call is one of the most common— and universally recognized — means through which police and other emergency personnel learn that there is someone in a dangerous situation who urgently needs help. This fits neatly with a central purpose of the exigent circumstances (or emergency) exception to the warrant requirement, namely, to ensure that the police or other government agents are able to assist persons in danger or otherwise in need of assistance.

Richardson, at 630.

Ill

[¶ 19] Matthews argues the search should not be upheld because the search was conducted in Fargo and the emergency circumstances were occurring somewhere in Horace. The dissent argues the search was not justified because the officers were not under the belief that Matthews and Murray were inside the Matthews residence at the time of entry. The dissent cites no other jurisdiction holding that for the emergency doctrine to apply, a victim must be in danger within the dwelling to be searched. Instead, the general premise in federal case law is that “[t]he right of the police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as peace officers.” United States v. Barone, 330 F.2d 543, 545 (2nd Cir.1964); see also Root v. Gauper, 438 F.2d 361, 364 (8th Cir.1971); Wayne v. United States, 318 F.2d 205, 211-12 (D.C.Cir.1963); United States v. Goldenstein, 456 F.2d 1006, 1010 (8th Cir.1972). The United States Supreme Court has concluded exigent circumstances were present, and “a warrantless intrusion may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence, or the need to prevent a suspect’s escape, or the risk of danger to the police or to other persons inside or outside the dwelling.” Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (citations omitted).

[¶ 20] In applying the emergency doctrine, jurisdictions have upheld a warrant-less search in circumstances in which the presence of a person inside the searched dwelling was unknown at the time of entry. Some jurisdictions have upheld a warrantless search of a dwelling under the emergency doctrine for the purpose of investigation when the primary intent of the investigation was to gather evidence to render aid or assistance to someone in a dangerous situation. Chaney v. State, 612 P.2d 269 (Okla.Crim.App.1980); People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607 (1976); People v. Bondi, 130 Ill.App.3d 536, 85 Ill.Dec. 773, 474 N.E.2d 733 (1984); Oliver v. United States, 656 A.2d 1159 (D.C.App.1995).

[¶ 21] In Chaney v. State, 612 P.2d 269 (Okla.Crim.App.1980), an Oklahoma court upheld the defendant’s arrest in a kidnapping case, holding there was reasonable cause to enter defendant’s residence, given the circumstances. The woman had been abducted. Id. at 277. Her abductor called her husband the night she was kidnapped and told the husband it would cost him $500,000 to ransom his wife. Id. The husband contacted the FBI, and agents made arrangements to trace any further calls. Id. The next evening the kidnapper made a second call, outlining instructions for payment of the ransom. That call was traced to the defendant’s residence. Id. Law enforcement officers did not go there immediately. Instead, the husband attempted to comply with the ransom demands, hoping to recover his wife alive. Id.

[¶ 22] Later that evening, the kidnapper, calling a third time, accused the husband of failing to follow instructions and threatened to kill the man’s wife. This call was traced to a public telephone booth, and the defendant’s palm print was found on the telephone. It was at this point that officers entered the defendant’s house without a warrant. Id.

[¶ 23] Because an emergency existed, the court found that the officers acted correctly in organizing and carrying out the entry and arrest as quickly as possible. The court found, because of the immediate need to minimize any harm to the individuals being held hostage, it did not matter that the officers could have obtained a warrant between the first and third calls. Id. The court held that if the time required to secure a warrant could result in the loss of evidence, the escape of a suspect, or, above all, the death of a victim, then law enforcement officials may act without a warrant if probable cause exists. The court stated:

From the content of the third and last call, the police could justifiably believe that the kidnap victims were still alive, but that their deaths were imminent. Time was of the essence. We hold that the officers were justified in conducting a warrantless search for either the victims or evidence of their location.

Id. (emphasis added).

[¶ 24] The cases citing Chaney have held the emergency doctrine applies when “a risk of injury or death would likely be magnified if the search were delayed due to the time involved in obtaining a warrant.” Gipson v. State, 82 S.W.3d 715, 720 (Tex.App.2002). Under the emergency doctrine, the consistent requirement is that it must be clear the police have a reasonable belief there is an immediate need to protect or preserve life. Brimage v. State, 918 S.W.2d 466, 483 n. 16 (Tex.Crim.App.1996). The cases applying the emergency doctrine in missing persons investigations hold that the doctrine clearly encompasses “searches for evidence that would lead to a kidnap victim as well as searches for the victim himself.” Brimage, at 483 n. 16; Travis v. State, 921 S.W.2d 559, 570 (Tex.App.1996). The court in Brimage stated:

Given the information known to the police at the time and based on the above excerpts from the testimony of Captain Gomez at the suppression hearing, there was sufficient evidence for the trial court to find that the warrantless search of appellant’s residence was objectively reasonable under the Emergency Doctrine, the intent of the search being to locate complainant or, alternatively, to find evidence hopefully leading to the discovery of complainant at a different location.

Brimage, at 502-03.

[IT 25] In People v. Lucero, 44 Cal.3d 1006, 245 Cal.Rptr. 185, 750 P.2d 1342 (1988), two young girls were playing in a park near one girl’s home. About a half hour after the girls arrived at the park, a neighbor heard the defendant’s goose cackling and saw the defendant walking toward the girls, telling them the goose would not hurt them. The girls appeared to be going into the defendant’s yard. A short time later, the father of one of the girls became concerned about their failure to return. He and his wife made separate trips to the park but were unable to find the girls. They then called the San Ber-nardino County Sheriffs Department.

[¶ 26] The sheriffs department set up a temporary command post almost directly across the street from the defendant’s house. About two hours later, a neighbor heard the defendant’s ear start up and drive down the street. Ten minutes later, she saw the car return to the defendant’s driveway. Three to five minutes later, she saw the defendant drive away in the car. Within minutes of the car’s second departure, she saw a fire in the rear portion of the defendant’s house. Firefighters arrived at the scene, and a sergeant from the sheriffs department informed the fire captain of the missing girls and asked that he direct his men to search the burning house. After the fire was contained, the firefighters alerted the sheriffs deputies to a large bloodstain on the carpet of the defendant’s living room. Several officers viewed the bloodstain. At about the time the deputies were examining the bloodstain, the bodies of the two girls were found in a nearby dumpster, wrapped in green trash bags. The defendant was convicted of two counts of first-degree murder and one count of arson.

[¶ 27] The court upheld the search of the defendant’s house under the emergency exception to the warrant requirement, stating:

A long-recognized exception to the warrant requirement exists when “exigent circumstances” make necessary the conduct of a warrantless search. “ ‘[E]xigent circumstances’ means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.”
We believe the search for the missing girls justified the officers’ brief entries into the house. We must consider the facts as known to the officers. Two young girls are missing. A fire of unknown origin ignites in a house directly across the street from the park where the girls had gone to play. The girls, their bodies, or clues to their location might be somewhere in the burning house. Thus, when the firefighters first arrived at the scene, Sergeant Anton advised Captain Bryant of the missing children and asked him to order his men into the burning house with oxygen equipment to look for the girls.

Lucero, 245 Cal.Rptr. 185, 750 P.2d at 1347 (citations omitted) (emphasis added). The court further stated, “Whether the officers were primarily interested in finding a lead to the missing girls or in investigating the fire is irrelevant. Either purpose would have justified their brief warrantless entries.” Id.

IV

[¶ 28] Most jurisdictions have not applied strict criteria to determine whether to uphold a warrantless search under the emergency exception to the warrant requirement under the Fourth Amendment; however, this Court, in Lubenow v. N.D. State Highway Comm’r, 438 N.W.2d 528, 533 (N.D.1989), quoted with approval the criteria developed in People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607, 609 (1976):

“(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.”

See also Gallmeyer v. State, 640 P.2d 837, 842 (Alaska App.1982) (explicitly adopting three-prong test from Mitchell); State v. Fisher, 141 Ariz. 227, 686 P.2d 750, 760-61 (1984); People v. Bondi, 130 Ill.App.3d 536, 85 Ill.Dec. 773, 474 N.E.2d 733, 736 (1984); State v. Illig, 237 Neb. 598, 467 N.W.2d 375, 381 (1991); State v. Follett, 115 Or.App. 672, 840 P.2d 1298, 1302 (1992).

[¶ 29] In Mitchell, a maid had not been seen for hours and had not responded when summoned. 383 N.Y.S.2d 246, 347 N.E.2d at 608. “It was highly probable that she was somewhere in the hotel,” and all of the circumstances led to the conclusion that she could be in danger. Id. at 610. Officers searched hotel rooms, and the defendant objected to evidence seized during the search. Id. at 608-09, 383 N.Y.S.2d 246, 347 N.E.2d 607. The first requirement under the test is that the police have valid reasons for the belief that an emergency exists, and such belief “must be grounded in empirical facts rather than subjective feelings.” Id. at 609-10.

[¶ 30] The second requirement is that the motivation for the search must be the officers’ protection of human life or property in imminent danger, rather than a desire to apprehend a suspect or gather evidence for use in a criminal proceeding. Id. at 610. In Mitchell, the detective “testified at the suppression hearing that he had no reason to believe a crime was being committed in defendant’s room when he entered; the police report of the hotel’s call for assistance stated that a possible kidnapping had taken place.” Id. The judge at the suppression hearing made the express factual finding, affirmed by the appellate court, that “[a]t the time entry was made into defendant’s room, it was more for the purpose of rendering aid to a possibly ill person than to look for evidence of a crime.” Id. The primary motivation for entering the defendant’s room and the other rooms in the hotel was to locate the maid and render assistance to her. Id.

[¶ 31] Under the third requirement, the court stated that the limited privilege afforded to “law enforcement officials by the emergency exception does not give them carte blanche to rummage for evidence if they believe a crime has been committed. There must be a direct relationship between the area to be searched and the emergency.” Id. For example, in United States v. Goldenstein, 456 F.2d 1006, 1010 (8th Cir.1972), the police, under emergency circumstances, validly entered the defendant’s hotel room in search of him and, not finding him there, proceeded to search through his belongings. The court suppressed evidence obtained from one of the defendant’s suitcases.

[¶ 32] The court in Mitchell expressly stated it hastened to admonish that the limited privilege to investigate emergencies without a search warrant is subject to judicial scrutiny. 347 N.E.2d at 611. “Constitutional guarantees of privacy and sanctions against their transgression do not exist in a vacuum but must yield to paramount concerns for human life and the legitimate need of society to protect and preserve life.” Id. at 611. “The United States Supreme Court has stated that ‘[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the fives of others.’ ” Id. (quoting Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)).

[¶ 33] Our case law has applied an objective standard as to the Mitchell reasonableness criteria of law enforcement officers’ actions. State v. Boyd, 2002 ND 203, ¶ 14, 654 N.W.2d 392. The Eighth Circuit has stated:

“[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.... And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?”

Root, 438 F.2d at 364-65 (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

[¶ 34] In People v. Bondi, 130 Ill.App.3d 536, 85 Ill.Dec. 773, 474 N.E.2d 733, 735 (Ill.App.1984), an Illinois court held in a missing persons ease that no warrant was necessary when the authorities’ entry into and search of the premises was for the purpose of providing aid to persons or property in need thereof. In applying the Mitchell test, the court concluded:

(1) that the fact that Genevieve Bondi was reported missing gave the authorities reasonable grounds to believe that she may be in imminent danger of death or serious bodily harm, (2) that as such the primary intent of the search of the premises was to locate her and provide assistance to her, not to seize evidence against the defendant, and (3) that her residence and the property surrounding it were the most likely places to search for evidence of the whereabouts of a missing occupant.

Bondi, at 736.

[¶ 35] In upholding that an emergency exception exists, some courts have limited the doctrine and held some situations automatically fall outside its scope, such as a delayed response to the emergency, or a planned warrantless search with an accompanying intent to arrest or to obtain evidence. Johnson v. State, 97 Nev. 621, 637 P.2d 1209, 1211 (1981); Root v. Gauper, 438 F.2d 361, 365 (8th Cir.1971); Thompson v. Louisiana, 469 U.S. 17, 21, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984). Nevada has affirmatively quoted E. Mascolo, The Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buff. L.Rev. 419, 426-27 (1973):

Law enforcement officers may enter private premises without either an arrest or a search warrant to preserve life or property, to render first aid and assistance, or to conduct a general inquiry into an unsolved crime, provided they have reasonable grounds to believe that there is an urgent need for such assistance and protective action, or to promptly launch a criminal investigation involving a substantial threat of imminent danger to either life, health, or property, and provided, further, that they do not enter with an accompanying intent to either arrest or search. If, while on the premises, they inadvertently discover incriminating evidence in plain view, or as a result of some activity on their part that bears a material relevance to the initial purpose for their entry, they may lawfully seize it without a warrant.

Geary v. State, 91 Nev. 784, 544 P.2d 417, 421 n. 3 (1975).

[¶ 36] In the case of a child kidnapping, it has been held that unlike some other emergency categories for which police officers must point to articulable facts beyond the initial report to make a showing of a reasonable need for immediate action, the very nature of a kidnapping presents “unusually compelling circumstances.” Oliver v. United States, 656 A.2d 1159, 1167 (D.C.App.1995).

[¶ 37] The court articulated that it is unreasonable to expect police to leave the victim in the control of the captor while officers obtain a warrant. Id. This is true even if the victim apparently is being well-treated. Id. A kidnapping victim is placed in continuing danger of harm at the hands of his or her captor. Id. Police must not delay rescue to obtain a warrant if probable cause exists to believe that a kidnapping victim is being held, because in such circumstances, time is of the essence. Id.

[¶ 38] The guidelines in Mitchell, as well as the holdings announced in Chaney, 612 P.2d 269, Bondi, 130 Ill.App.3d 536, 85 Ill.Dec. 773, 474 N.E.2d 733, and Oliver, 656 A.2d 1159, fully apply in the instant case, justifying the emergency exception under the exigent circumstances doctrine and allowing the officers to enter the Matthews residence without a warrant.

[¶ 39] The investigating officer, Sergeant Pallas, and the other officers had a justifiable reason to believe that an emergency existed. The district court found the evidence led to a reasonable assumption “that the two men could be killed at any minute, thus dire circumstances existed.” The district court’s findings were supported by sufficient and competent evidence. The officers’ beliefs were grounded in empirical facts. A 911 call informed them that Matthews and Murray were being held at gunpoint at an unknown location and were in need of police intervention or emergency first aid. Mitchell, 383 N.Y.S.2d 246, 347 N.E.2d at 609.

[¶ 40] At the suppression hearing, Sergeant Pallas testified that after the 911 call came in, law enforcement officers were dispatched to the Horace area and to the address of Leak Seekers, which was also the address of Matthews’ residence, in Fargo. While at Matthews’ residence, the officers found Murray’s girlfriend’s vehicle parked out front. The officers could hear the telephone ringing when dispatch called the home, but no one inside the house answered it, and although the officers saw fights on in the house, nobody answered the door when the officers knocked. The officers then left Matthews’ residence.

[¶ 41] Sergeant Pallas testified he decided to enter Matthews’ residence when the phone call from Murray to his mother-in-law could not be traced, which was also a short time after the investigating officers communicated what they initially found at Matthews’ residence. Two officers and a trainee were dispatched back to the residence to meet Sergeant Pallas. When questioned during direct examination at the suppression hearing about what Sergeant Pallas thought he might find inside Matthews’ residence, Sergeant Pallas testified:

Information in relation to where this person was at. The defendant has a business “Leak Seekers”. The information that we received from the mother-in-law stated that he was going to go out and get payment or services rendered from a job. I was hoping to recover information as far as a[n] address or a receipt book or business ledger in this address.

When asked if he had any other reason, apart from looking for information, to enter Matthews’ residence, Sergeant Pallas stated: “Other than possibly if subjects were inside. The actual caller, being the vehicle was out front. There was always that possibility that they were calling from there and not the Horace area.” On cross-examination, Sergeant Pallas testified:

Q. Did you believe they were at the residence at 1335?
A. At that point I wasn’t sure if they were there or they were in Horace without knowing what was inside that home.
Q. Did you have any reason to believe anybody was at 1335?
A. Could of been. I guess without being able to trace where the phone call came from initially anything was possible.

[¶ 42] It is clear from the evidence that the officers had no intent to enter Matthews’ premises to arrest anyone or to search for criminal behavior; instead, the sole motive for entering was to offer aid or assistance to Matthews and Murray. The district court found the officers’ sole intent in entering Matthews’ residence was to look for Matthews and Murray or for information that might lead to their location. The officers did not enter the premises until they were told the phone call from Murray to his mother-in-law could not be traced. Then the officers believed an emergency existed and immediate action needed to be taken. Sergeant Pallas testified at the suppression hearing that the primary reason for entering Matthews’ residence was to offer assistance to the two men in danger and search for the men or information regarding the location in Horace where the men were being held, not to make an arrest or investigate a crime scene.

[¶ 43] They had a reasonable basis, approximating probable cause, for associating the emergency with the place to be searched. The officers were unable to trace where the phone call to Murray’s mother-in-law came from. It is reasonable the officers would have searched Matthews’ residence, which was also his place of business, Leak Seekers, because it was mentioned in the 911 call with Murray’s mother-in-law. It is reasonable to believe that the officers’ search would produce either Matthews or Murray or information leading to their location. In upholding the search, the district court stated, “The officers reasonably believed that the Matthews residence, which coupled as the business address for Leak Seekers, might contain some kind of a record of the underlying debt that the men had gone to collect.” The police officers in this circumstance, however, could have also reasonably believed there remained a possibility that the men may have been inside the house. The warrantless search of Matthews’ residence was for Matthews’ and Murray’s safety, to either find the men inside the house or find information that could have led the officers to the location in Horace where the two men were being held.

[¶ 44] Applying the Mitchell principles to this case, the officers’ entry of Matthews’ house without a warrant was justified under the circumstances. All of these factors taken into account make it clear the district court did not err in concluding that the officers did not have an intent to arrest or to make an unreasonable search when they entered Matthews’ residence but had, in fact, one single interest — to provide Matthews and Murray with emergency aid. That action falls completely within the emergency doctrine exception to the Fourth Amendment prohibition against warrantless, nonconsensual searches. Chaney, 612 P.2d 269; Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607; Bondi, 130 Ill.App.3d 536, 85 Ill.Dec. 773, 474 N.E.2d 733; and Oliver, 656 A.2d 1159. The scope of the search was reasonable in view of its objectives. The district court was correct in refusing to suppress the evidence seized through the warrants obtained by reason of the officers’ entry into Matthews’ residence.

[¶45] Professor LaFave concludes his discourse on this topic by noting:

[I]f ... it is permissible to enter premises to rescue a threatened kidnap victim thought to be within, then surely it must likewise be permissible to make an immediate warrantless entry upon a reasonable belief that information therein will disclose where that victim is being held.

3 Wayne R. LaFave, Search and Seizure § 6.5(d) (3d ed.2002). His logic and reason are compelling.

V

[¶ 46] Under the circumstances in this case, the police officers’ actions fall within the emergency exception to the Fourth Amendment protections from unreasonable searches and seizures, justifying a warrantless entry into the Matthews residence. We affirm.

[¶ 47] GERALD W. VANDEWALLE, C.J., and WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.

KAPSNER, Justice,

dissenting.

[¶ 48] I respectfully dissent. I would reverse the judgment of the trial court and remand the case to allow Matthews to withdraw his guilty pleas.

[¶ 49] A “basic principle of Fourth Amendment law” is that warrantless searches and seizures inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In Payton, the United States Supreme Court reiterated that “the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” 445 U.S. at 585, 100 S.Ct. 1371 (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1980)).

[¶ 50] The Fourth Amendment’s prohibition of searches inside a home without a warrant is not absolute; searches and seizures without a warrant are not unreasonable under the Fourth Amendment if the government can show the search or seizure falls under one of the well-delineated exceptions to the search warrant requirement. State v. DeCoteau, 1999 ND 77, ¶ 7, 592 N.W.2d 579. For example, law enforcement officers may enter a home and conduct a warrantless search if both probable cause and exigent circumstances exist. Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002); Payton, at 589-90, 100 S.Ct. 1371; United States v. Davis, 785 F.2d 610, 615 (8th Cir.1986). In such circumstances, “the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.” Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).

[¶ 51] The majority concludes law enforcement officers were able to enter Matthews’ residence and conduct a warrant-less search for information under the emergency doctrine. In my opinion, the emergency doctrine does not provide an exception to the warrant requirement under the facts of this case. The emergency was reported as occurring at a farmstead in or near Horace. The warrantless search was conducted at Matthews’ residence in Fargo. In upholding the search, the trial court stated, “[t]he officers reasonably believed that the Matthews[’] residence, which coupled as the business address for Leak Seekers, might contain some kind of a record of the underlying debt that the men had gone to collect.” The majority, at ¶ 43, contends the law enforcement officers could also have reasonably believed there remained a possibility that the men may have been inside the house. However, apart from Sergeant Pallas’ testimony alluding to the notion that “[t]here was always that possibility that [the men] were calling from [the residence],” there is nothing in the record to support the majority’s contention. The 911 caller reported that Matthews and Murray were at a farmstead in Horace and that Matthews was being held at gunpoint in the garage. The investigating officers looked in Matthews’ garage in Fargo and communicated to Sergeant Pallas nothing suspicious about the garage. No one answered the door when the officers knocked on it. There was no movement reported from inside the house. The officers left the residence after finding nothing suspicious to warrant an immediate entry.

[¶ 52] The State did not argue, as the majority relies for support, that Matthews and Murray could have been in the Fargo residence. In its brief the State argued “[t]he peace officers in this case weren’t sure where Matthews was, but they did not enter his residence principally because they believed he was in it, ... Rather the officers entered Matthews’ home because they hoped to. find some document leading them to where he and Murray were being held at gun point in rural Horace.” The State reemphasized at oral argument the warrantless search of Matthews’ residence was for information which might lead the officers to the location in Horace where the two men were being held; the officers did not search Matthews’ residence because they believed the two men were being held at gunpoint inside the residence.

[¶ 53] In this case, the officers believed an emergency existed elsewhere; their intent was to enter the premises for investigative purposes, in the mere hope of finding some information that could lead them to the location of the emergency. This Court, in Lubenow v. N.D. State Highway Comm’r, 438 N.W.2d 528, 533 (N.D.1989), emphasized “there must be' a direct relationship between the area to be searched and the emergency.” The premises searched in this case had no direct relationship to the emergency that was reported to be occurring.

[¶ 54] The majority, at ¶ 28, acknowledges the third prong of the Mitchell test. “There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.” With respect to the search of Matthews’ house, the police had nothing more than the hope that the residence might contain information which might lead them to the location where they believe the two men were endangered. The place to be searched must have a “direct relationship” to the emergency. Lubenow, at 533. This prong is not satisfied when the police enter with the mere hope of finding information that might lead them to the location of the emergency.

[¶ 55] The trial court, in denying the suppression motion, reviewed the circumstances of both police visits to Matthews’ home. Regarding the first visit, the court noted the officers found nothing suggesting an emergency at that location: “Unable to make contact with anyone and not finding anything obviously amiss, the officers left the premises.” When the officers went back to Matthews’ home a second time, it was with an investigative purpose. The court found: “The officers reasonably believed that the Matthews[’] residence, which coupled as the business address for Leak Seekers, might contain some kind of a record of the underlying debt that the men had gone to collect.” The trial court did not find that the police believed there could be someone on the premises who needed the type of assistance which is contemplated by the emergency doctrine. Rather the trial court found, as one of the facts which supported the application of the exigent circumstances, “that there might be someone present on the premises who might know something of the affair.”

[¶ 56] In the cases cited by the majority in which the emergency doctrine has been applied and the location of a person associated with the searched dwelling was unknown at the time of entry, the officers who entered the premises without a warrant had an objectively reasonable belief that the premises searched were intimately connected with the emergency need for assistance. In Chaney v. State, 612 P.2d 269, 277 (Okla.Crim.App.1980), a kidnapping case, officers traced a ransom call to the defendant’s home. Officers traced a later call to a public phone where the defendant’s palm print was found. In the later call, the defendant threatened to kill the kidnapped victim because his demands had not been met. It was at this point the officers organized the entry into the defendant’s home. Although the opinion quoted by the majority refers to finding “evidence of their location,” the entry into the residence was based on facts rising to probable cause to relate the defendant’s residence to the emergency.

[¶ 57] The majority also cites Brimage v. State, 918 S.W.2d 466, 501-02 (Tex.Crim.App.1996), for the proposition that officers may conduct a warrantless entry under the emergency doctrine to search for evidence that would lead to a kidnap victim or the victim himself. In Brimage, prior to the officers’ decision to search the defendant’s home without a warrant, the officers knew: (1) a woman had been missing for over two days; (2) the defendant was acquainted with the woman and her car had been found unlocked with her purse in plain view and parked near defendant’s residence in an area where, according to the woman’s boyfriend, she never parked; (3) the woman was observed on the morning of her disappearance driving near the defendant’s house; (4) the woman was wearing a red blouse when last seen and a suitcase abandoned by the defendant contained a piece cut from a red blouse which appeared to have a bloodstain, scissors, and a piece of fabric from a pair of blue pajama pants; and (5) the defendant’s uncle who, on his own, had entered defendant’s home reported finding part of a pair of blue pajamas, other evidence of cut-up women’s clothing, and evidence of a “violent struggle” in the master bedroom. Brimage, at 501-02. The officers had an objective basis to reasonably believe the woman was injured, in need of assistance, and her disappearance was connected with the defendant’s home.

[¶ 58] Similarly, in People v. Lucero, 44 Cal.3d 1006, 245 Cal.Rptr. 185, 750 P.2d 1342, 1347 (1988), officers entered the defendant’s home located across from the park where two missing girls had last been seen when firefighters, who had just been inside the house, reported a large bloodstain on the living room carpet. Although the opinion makes reference to the fact that “clues to their location” may be inside, the entry of the home was based on objective factors, not the mere hope of finding clues about the missing girls current location.

[¶ 59] In each of the cases cited by the majority, the courts found specific, articu-lable and objective facts that directly related the location searched to the emergency that was occurring. In this case, the entry into Matthews’ residence was based only on the hope that, because the residence was also the business location of Matthews, the officers might find some information about the debt Matthews and his companion had gone to collect. If law enforcement could enter without a warrant, solely for investigative purposes, merely hoping to find information which would lead them to the place that an emergency was believed to be occurring, the investigative purpose would swallow the warrant requirement.

[¶ 60] The situation appeared to the officers to be dire; they believed there was a real threat to Matthews and Murray. But all information known to the officers indicated the threat existed somewhere near Horace, not at Matthews’ residence. It is tempting to hold that with a threat so serious as the possible murder of two men, the warrant requirement should give way to the need to act quickly. But the United States Supreme Court has specifically stated the seriousness of the alleged incident that police are investigating is not a basis for finding exigent circumstances to justify a warrantless search. Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Payton v. New York, 445 U.S. 573, 583-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Thompson v. Louisiana, 469 U.S. 17, 21, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984). The Fourth Amendment protections from unreasonable searches and seizures erects a “firm line at the entrance to the house.” Payton, at 590, 100 S.Ct. 1371. “[P]olice officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.” Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002).

[¶ 61] The State failed to meet its burden to demonstrate an exception to the warrant requirement and overcome the presumption of unreasonableness which attaches to warrantless home entries. Under the circumstances in this case, without a reasonable belief someone was in danger inside the residence, or some other objective basis to directly relate Matthews’ house to the emergency, the officers’ war-rantless entry into Matthews’ home to search for information was unreasonable.

[¶ 62] Carol Ronning Kapsner


source: Caselaw Access Project

author: YANDE WALLE, Chief Justice.

license: Public Domain

text:
    2003 ND 113
    Robert Shawn RIST, Petitioner and Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
    No. 20020303.
    Supreme Court of North Dakota.
    July 16, 2003.

      Chad C. Nodland, Chad C. Nodland, P.C., Bismarck, ND, for petitioner and ap-pellee.
    Reid A. Brady, Assistant Attorney General, Bismarck, ND, for respondent and appellant.
   YANDE WALLE, Chief Justice.

[¶ 1] The North Dakota Department of Transportation (“Department”) appealed from a district court judgment reversing an administrative hearing officer’s decision to suspend Robert Rist’s driving privileges for 91 days. We reverse the district court judgment and reinstate the suspension of Rist’s license.

I

[¶ 2] In June 2002, at around 1:00 a.m., a Burleigh County deputy sheriff noticed a pickup parked in an area south of Bismarck by a boat dock. The deputy observed Rist “slumped behind the [steering] wheel with his chin in his chest.” The deputy parked his vehicle behind the pickup in a “tactical position” he used in all traffic stops, although he did not park in a manner which blocked the pickup from leaving. He decided to perform a welfare check to determine if Rist needed assistance. The deputy walked to the driver’s side window, which was completely rolled down, and shouted several times, “Sheriffs Department, wake up!” When this failed to rouse Rist, the deputy reached inside the pickup through the open window and shook Rist’s left shoulder. Rist awoke and told the deputy he was “okay” and was fishing.

[¶ 3] The deputy smelled the odor of alcohol coming from inside the vehicle and did not see any fishing poles in the water. He asked Rist for identification. When Rist exited the vehicle to retrieve his identification from the back of the pickup, the deputy noticed an open beer can on the pickup’s console; he also observed Rist had bloodshot eyes, walked unsteadily, and slurred his words. Rist consented to field sobriety tests and failed the horizontal gaze nystagmus and one-leg stand tests. On the basis of these tests and the results of an Intoxfiyzer test, the deputy arrested Rist for actual physical control of a vehicle while under the influence of intoxicating liquor. A subsequent blood test showed Rist’s blood-alcohol content was .13 percent. During his encounter with Rist, the deputy apparently did not determine the location of the pickup’s ignition key.

[¶ 4] Rist requested an administrative hearing. The hearing officer suspended Rist’s driving privileges for 91 days, concluding the deputy had acted as a community caretaker when approaching Rist and had reasonable grounds to believe Rist was in actual physical control of a vehicle in violation of N.D.C.C. § 39-08-01 or equivalent ordinance. The district court reversed the hearing officer’s decision and remanded for dismissal. The court concluded the deputy’s actions exceeded the scope of community caretaking and the offense of actual physical control requires ignition keys or evidence the vehicle can be started without keys.

[¶ 5] The Department argues the initial encounter between Rist and the deputy was justified by the community caretaking exception. It further argues that as the deputy observed Rist, the deputy formed a reasonable and articulable suspicion Rist was in actual physical control of his vehicle while under the influence of intoxicating liquor and the deputy had probable cause to arrest Rist for actual physical control.

II

[¶ 6] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of an administrative agency decision to suspend a driver’s license. Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 7, 663 N.W.2d 161. On appeal, we review the findings and decisions of the administrative agency. Obrigewitch v. Director, N.D. Dept. of Trcmsp., 2002 ND 177, ¶ 7, 653 N.W.2d 73. We defer to the administrative agency’s ruling by not making independent findings of fact or by substituting our own judgment for the agency’s, but “the ultimate conclusion of whether the facts meet the legal standard, rising to the level of probable cause, is a question of law, fully reviewable on appeal.” Sonsthagen, at ¶ 7. Although our review is limited to the record before the administrative agency, “the district court’s analysis is entitled to respect if its reasoning is sound.” Obrigewitch, at ¶¶ 7-8 (quoting Kraft v. N.D. State Bd. of Nursing, 2001 ND 131, ¶ 10, 631 N.W.2d 572). Under N.D.C.C. § 28-32-46, this Court must affirm the agency’s order unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

Ill

[¶ 7] The Department argues the district court erred when it concluded the deputy was not acting as a community caretaker when he initially approached Rist. The district court found as a matter of law the deputy’s actions were not those of a community caretaker.

A

[¶ 8] The Fourth Amendment of the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” However, the law distinguishes between approaching an already stopped vehicle and stopping a moving one. State v. Franklin, 524 N.W.2d 603, 604 (N.D.1994) (citing State v. Halfmann, 518 N.W.2d 729 (N.D.1994)). No seizure within the context of the Fourth Amendment occurs when an officer approaches a parked vehicle “if the officer inquires of the. occupant in a conversational manner, does not order the person to do something, and does not demand a response.” State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992) (citing Wibben v. N.D. State Highway Comm’r, 413 N.W.2d 329, 334-35 (N.D.1987) (VandeWalle, J., concurring)). Not all citizen-law enforcement encounters implicate a citizen’s Fourth Amendment rights; a seizure occurs only when a law enforcement officer, by means of physical force or show of authority, in some manner restrains the liberty of a citizen. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Boline, 1998 ND 67, ¶ 25, 575 N.W.2d 906.

[¶ 9] For example, community caretaking allows citizen-law enforcement contact without an officer’s reasonable suspicion of criminal conduct. State v. Glaesman, 545 N.W.2d 178, 181 (N.D.1996). The law recognizes community caretaking functions as those citizen-law enforcement encounters which are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In situations where it is obvious that a citizen neither needs nor desires assistance, an officer has no community caretaking role to fill. City of Jamestown v. Jerome, 2002 ND 34, ¶ 8, 639 N.W.2d 478 (citing State v. DeCoteau, 1999 ND 77, ¶ 21, 592 N.W.2d 579). However, we do not conclude an individual slumped over a steering wheel in the circumstances of this case presents such an “obvious” situation. Cf. Lapp v. N.D. Dep’t of Transp., 2001 ND 140, ¶¶ 14-15, 632 N.W.2d 419 (concluding an officer’s encounter with an individual was justified by the officer’s community caretaking role when the individual was slumped over the steering wheel of a vehicle with its engine running); Franklin, 524 N.W.2d at 605 (determining officers’ approach of individuals parked at night in motel parking lot and slumped down in their seats was more of a community caretaking encounter than a stop or seizure).

[¶ 10] While no seizure occurs during a community caretaking encounter, “even a casual encounter can become a seizure if the officer acts in a manner that a reasonable person would view as threatening or offensive if done by another private citizen-through an order, a threat, or display of a weapon.” Langseth, 492 N.W.2d at 300 (citing Wibben, 413 N.W.2d at 335 (VandeWalle, J., concurring)). See also Halfmann, 518 N.W.2d at 731. For example, in State v. Boyd, we concluded a deputy had not acted as a community caretaker and stated:

Deputy Schuh “pulled in behind” Boyd and her companions, blocking their vehicle’s rear exit. Deputy Schuh did not converse with them in a casual manner; she ordered them to go to the front of their vehicle and put their hands on the hood. By issuing orders and demanding compliance, Deputy Schuh removed herself from the scope of acceptable actions for officers acting as community caretakers.

2002 ND 203, ¶ 10, 654 N.W.2d 392 (citations omitted). Although an officer acting as a community caretaker may not exceed the basic scope of permissible conduct described in our cases, such as those cited above, he or she may encounter an individual whose state of consciousness prevents a conversational inquiry from occurring. Under those circumstances, the officer must determine what actions need to be taken to get the individual to respond and therefore may need to approach a person who does not respond differently from a person who is conscious and able to converse with the officer.

[¶ 11] Because the deputy could not be sure whether Rist was simply sleeping in his vehicle or in need of assistance, we conclude the deputy’s shouts at Rist were part of a welfare check. In the circumstances of this case, we do not construe the deputy’s statement — “Sheriffs Department, wake up!”- — as the show of authority or the order to do something which removes a law enforcement officer’s actions from the scope of community caretaking. The deputy’s loud voice in this situation was a vehicle to awaken a nonresponsive individual, and his words served to alert Rist to the deputy’s presence. Although the deputy’s statement arguably could be considered an “order” to wake up we do not interpret his statement to be the kind of demand for compliance contemplated by our previous cases. Cf. Boyd, 2002 ND 203, ¶ 10, 654 N.W.2d 392. Furthermore, by announcing a law enforcement title or affiliation, officers may alleviate unnecessary fear on behalf of an individual they approach, thereby facilitating a safer encounter both for the officer and the individual. An officer trying to awaken a person wants to avoid provoking a defensive response from a startled individual who might think he has been accosted by an unidentified person.

B

[¶ 12] If an officer learns something during a caretaking encounter that causes a reasonable suspicion or probable cause, the encounter can lead to further investigation, seizure, and even arrest. City of Fargo v. Sivertson, 1997 ND 204, ¶ 9, 571 N.W.2d 137 (citing City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 775 (N.D.1996)). Here, after initially approaching Rist, the deputy testified he observed an open beer can inside the vehicle and noticed Rist had bloodshot eyes, walked unsteadily, and slurred his words.

[¶ 13] The hearing officer found:

Deputy Messmer saw a pickup parked by a boat dock south of Bismarck. A person was slumped over in the driver’s seat, so Deputy Messmer approached in order to do a welfare check.... The vehicle’s engine was not running; the ignition key may have been in the ignition, but Deputy Messmer is not certain about the key’s location. Deputy Mess-mer tried to wake the driver first by yelling at him, then reached in and shook his shoulder. The driver, Robert Rist, then awoke. Mr. Rist had an odor of alcohol on his breath, so field tests were requested. Tests done were horizontal gaze nystagmus, 1-leg stand, and S-D2; results were unsatisfactory or failing on all three tests. Robert Rist was arrested for being in actual physical control of a vehicle in violation of NDCC [§ ] 39 — 08[—]01 or equivalent ordinance. Blood was drawn by an R.N. within two hours of the time Deputy Messmer first saw Mr. Rist. Blood testing was done in accordance with the state toxicologist’s approved method, with results showing an alcohol concentration of .13%.

The district court concluded the hearing officer’s finding of fact that “the ignition key may have been in the ignition” was not supported by a preponderance of the evidence and was refuted by the deputy’s uncertainty about the key’s location. The court stated “[t]here must be keys to have actual physical control or there must be evidence the vehicle can be started without keys.”

[¶ 14] However, the essential elements of actual physical control are “(1) the defendant is in actual physical control of a motor vehicle on a highway or upon public or private areas to which the public has a right of access; and (2) the defendant was under the influence of intoxicating liquor, drugs, or other substances.” State v. Haverluk, 2000 ND 178, ¶ 15, 617 N.W.2d 652. The primary factor in determining the offense of actual physical control is whether the defendant has the ability to manipulate the controls of the vehicle. Obrigewitch, 2002 ND 177, ¶ 13, 653 N.W.2d 73. As we stated in Haverluk:

“Actual physical control of a vehicle does not solely depend on the location of the ignition key. The location of the key is one factor among others to consider.” Because the location of the vehicle keys is only one factor, the vehicle keys are “not necessary to support probable cause to arrest.”

2000 ND 178, ¶ 18, 617 N.W.2d 652 (citations omitted). See also Obrigewitch, at ¶ 13; City of Fargo v. Theusch, 462 N.W.2d 162, 163-64 (N.D.1990).

[¶ 15] “Reasonable grounds” is synonymous with the term “probable cause.” Henderson v. Director, N.D. Dep’t of Transp., 2002 ND 44, ¶ 8, 640 N.W.2d 714. “Probable cause to arrest exists when the facts and circumstances within police officers’ knowledge and of which they have reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing an offense has been or is being committed.” Id. (quoting Fargo v. Egeberg, 2000 ND 159, ¶ 8, 615 N.W.2d 542). The hearing officer made the following conclusions of law:

Deputy Messmer had a proper basis for approaching Robert Rist’s pickup; this was a part of his community caretaking duties. Deputy Messmer had reasonable grounds to believe that Robert Rist was in actual physical control of a vehicle in violation of NDCC [§ ] 89-08-01 or equivalent ordinance. Mr. Rist was arrested, was properly tested, and had an alcohol concentration of at least .10%.

After reviewing the record, we conclude the evidence in the record from the administrative hearing supports the hearing officer’s conclusion that the deputy acted as a community caretaker when he approached Rist, and as a result of his encounter with Rist, the deputy had reasonable grounds to believe that Rist was in actual physical control of the vehicle.

C

[¶ 16] Rist’s counsel has asserted he was unable to offer evidence about the inoperability of the pickup because he learned about the absence of the ignition key for the first time at the administrative hearing. The district court denied Rist’s request to remand the matter for the limited purpose of taking additional testimony on the issue of the vehicle’s operability. He makes the same request of this Court. Section 28-32-45, N.D.C.C., provides, in part:

If an application for leave to offer additional testimony, written statements, documents, exhibits, or other evidence is made to the court in which an appeal from a determination of an administrative agency is pending, and it is shown to the satisfaction of the court that the additional evidence is relevant and material and that there were reasonable grounds for the failure to offer the evidence in the hearing or proceeding, or that the evidence is relevant and material to the issues involved and was rejected or excluded by the agency, the court may order that the additional evidence be taken, heard, and considered by the agency on terms and conditions as the court may deem proper.

[¶ 17] As we have previously stated, the presence of an ignition key is not dispositive to the offense of actual physical control. Similarly, whether or not a vehicle is operable also is not dispositive of this offense. See, e.g., Haverluk, 2000 ND 178, ¶ 16, 617 N.W.2d 652 (stating “[w]e have frequently upheld APC convictions even when the vehicles were inoperable”). Furthermore, Rist’s counsel explains that no evidence about the inoperability of the pickup was offered at the administrative hearing because he first learned about the issue when the deputy testified. We conclude this explanation does not provide “reasonable grounds for the failure to offer evidence in the hearing,” and therefore, the standard for remanding the matter for consideration of additional evidence under N.D.C.C. § 28-32-45 has not been met.

IV

[¶ 18] We reverse the district court judgment and reinstate the hearing officer’s suspension of Rist’s license.

[¶ 19] DALE V. SANDSTROM, CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., concur.

      . The Department filed a notice of appeal on October 23, 2002, stating it was appealing from the district court's "Order Reversing Hearing Officer's Decision and Remanding for Dismissal.” Section 28-32-49, N.D.C.C., governing administrative agency appeals, authorizes only appeals from judgments. See N.D.C.C. § 28-32-49 (previously § 28-32-21); Sowatzki v. N.D. Workers Comp. Bureau, 1997 ND 137, ¶ 10, 567 N.W.2d 189. We have stated an administrative agency appeal from an order is properly before this Court if the record contains a judgment consistent with the order. Olson v. Job Serv. North Dakota, 379 N.W.2d 285, 287 (N.D.1985). On December 10, 2002, the district court entered a judgment consistent with its earlier order. Therefore, this appeal is properly before us.


author: VANDE WALLE, Chief Justice.

text:
    2003 ND 119
    STATE of North Dakota, Plaintiff and Appellee, v. Anna Marie SCHWAB, Defendant and Appellant.
    No. 20020306.
    Supreme Court of North Dakota.
    July 16, 2003.

      John J. Mahoney, State’s Attorney, Center, for plaintiff and appellee.
    Ronald A. Reichert, Reichert & Herauf, P.C., Dickinson, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Anna Marie Schwab appealed a judgment entered on a verdict finding her guilty of driving while under the influence of alcohol “and/or” with a blood alcohol concentration of at least .10 percent by weight. We conclude there were no reversible errors in amending the complaint and denying a continuance, or in the jury selection process. We affirm.

I

[¶ 2] At approximately 10:30 p.m., on May 18, 2002, Schwab was involved in a motor vehicle accident in Oliver County. The vehicle Schwab was operating collided with farm equipment being pulled by a tractor operated by Darrell Schulte, who was turning onto a highway while pulling an air seeder, grain cart and anhydrous ammonia tank. Schulte was cited for failure to yield the right of way. Schwab was issued a uniform complaint and summons citing N.D.C.C. § 39-08-01 and charging her with driving under the influence of alcohol or drugs. An analysis of blood drawn from Schwab by a nurse at a Bismarck hospital at 12:20 a.m., on May 19, 2002, revealed a blood alcohol concentration of .15 percent by weight.

[¶ 3] After a trial on October 10, 2002, the jury returned a verdict finding Schwab guilty:

We ... find the defendant, Anna Marie Schwab, GUILTY of the offense of:
X driving while under the influence of an alcoholic beverage
and/or
X driving at a time when she had a blood alcohol concentration of at least .10 by weight as measured by a chemical test performed within two hours after driving.

[¶ 4] The trial court entered judgment of guilty and sentenced Schwab to 15 days in jail, suspended for 18 months, a fine of $350, with $100 suspended, a victim witness program fee of $25, and completion of a chemical dependency evaluation by a certified addiction counselor. Schwab on appeal contends the trial court’s error in allowing amendment of the complaint and in denying a continuance, and an improper jury-selection process require reversal of her conviction.

II

[¶ 5] The uniform complaint and summons issued to Schwab cited N.D.C.C. § 39-08-01, but specifically charged only driving under the influence of alcohol or drugs. In an amended complaint, the prosecutor also charged driving with a blood alcohol content of .10 percent or greater. Schwab argues the trial court erred in allowing amendment of the complaint and in denying a continuance.

[¶ 6] After jury selection on the day of trial, Schwab’s attorney said: “I notice the instructions that the Court has talks about .10. Well, I have the ticket here and there is no charge of .10.” Schwab’s attorney told the court he had not received a motion to amend the complaint and moved “not to allow the amended complaint” and also to exclude evidence regarding that charge of driving with a blood alcohol concentration of .10 or greater. The trial court concluded there was no surprise and denied Schwab’s motion.

[¶ 7] After acknowledging that “I have been aware that there was a test in this case, a blood test in this case,” Schwab’s attorney requested a continuance:

[I]f we’re going to talk about the chemical test and anhydrous ammonia can affect the results of a chemical test, and, therefore, if the Court is going to allow this amendment, then I would ask for a continuance.

The trial court denied the request, noting “I see the arguments, but the record also would indicate that this isn’t a complete surprise here today, so let’s proceed.”

[¶ 8] Section 39-08-01(1), N.D.C.C., provides, in part:

A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply:
a. That person has an alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle.
b. That person is under the influence of intoxicating liquor.

Subsections (l)(a) and (l)(b) address two different conditions:

The crime created by subsection (l)(a) is driving with a blood alcohol concentration of .10, without regard to its influence or effect upon the driver. Conversely, the crime created by subsection (l)(b) is driving while under the influence of intoxicating liquor, regardless of the driver’s blood alcohol concentration. Violations of subsections (l)(a) and (l)(b) of Section 39-08-01 may be pleaded alternatively.

City of Minot v. Bjelland, 452 N.W.2d 348, 350 (N.D.1990).

[¶ 9] The primary purpose of the complaint is to inform the defendant of the charge, so the defendant can mount a defense. State v. Treis, 1999 ND 136, ¶ 17, 597 N.W.2d 664. Rule 3(b), N.D.R.Crim.P., provides: “The magistrate may permit a complaint to be amended at any time before a finding or verdict if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” “This language implies that the ... complaint may be amended only with permission of the court.” State v. Klose, 334 N.W.2d 647, 649 (N.D.1983). “The Explanatory Note to Rule 3, N.D.R.Crim.P., recognizes that ‘complaints are often hastily drawn,’ and ‘often contain inadequacies in construction.’ This is particularly true of uniform traffic complaints, which are generally not drawn by an attorney or reviewed by a magistrate before the arrest.” Bjelland, 452 N.W.2d at 351. Under N.D.R.Crim.P. 3(b), allowing amendment of a complaint is within the district court’s discretion. Treis, at ¶ 18. “To violate Rule 3(b), NDRCrimP, an amendment to a complaint not only must charge an additional or different offense but also must prejudice the defendant’s substantial rights.” State v. Schuh, 496 N.W.2d 41, 46 (N.D.1993). Absent an abuse of discretion, a trial court’s decision on a motion for continuance will not be set aside on appeal. State v. Entzi, 2000 ND 148, ¶ 22, 615 N.W.2d 145.

[¶ 10] On July 2, 2002, Schwab filed a demand for discovery and inspection of, among other things, “results of all chemical and field tests administered to Defendant.” On September 30, 2002, Schwab received an amended complaint, signed by the prosecutor, charging Schwab with “DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL AND/OR WITH A B.A.C. OF .10 OR GREATER.” On October 1, 2002, Schwab filed requested jury instructions addressing both driving with a blood alcohol concentration of .10 or greater and driving while under the influence of intoxicating liquor. On October 1, 2002, the prosecutor filed a one-page trial brief stating, in part:

The State alleges that on or about the 18th day of May, 2002, at about 10:33 p.m. on Highway 25 about 3 miles west of Center, in Oliver County, North Dakota, the Defendant, Anna Marie Schwab, was driving her car and collided with farming equipment being hauled by a tractor driven by Darrell Schulte. Anna was under the influence of alcohol at the.time, and had a B.A.C. of .15 at the time she was tested within two hours of driving.

The prosecutor filed the amended complaint, with the district judge’s approval, on October 3, 2002. Schwab called a forensic scientist to testify at the trial about the effect of anhydrous ammonia on the metabolism of blood alcohol.

[¶ 11] It is clear Schwab anticipated her blood alcohol concentration would be an issue and she prepared for a trial on both driving with a blood alcohol level in excess of .10 and for driving under the influence of intoxicating liquor. Schwab has not demonstrated any way in which the amendment or the denial of a continuance could “prejudice the defendant’s substantial rights,” Schuh, 496 N.W.2d at 46, or how she would have defended differently if a motion to amend had been made before trial or if a continuance had been granted. We conclude the trial court did not abuse its discretion in allowing the complaint to be amended or in denying Schwab’s request for a continuance.

Ill

[¶ 12] Schwab contends an improper jury selection process requires reversal of her conviction. “We review the trial court’s jury selection procedure using an abuse of discretion standard of review.” State v. Barth, 2001 ND 201, ¶ 8, 637 N.W.2d 369.

[¶ 13] The trial court excused and replaced two members of the panel of prospective jurors. The court excused a third panel member and said, “we’ll fill that chair again.” The clerk responded, “[w]e’re out.” The court thereafter excused two more panel members. Schwab’s attorney then moved “to strike for cause all those people who know Darrell Schulte.” The trial court granted Schwab’s request and excused seven potential jurors who had indicated they know Darrell Schulte. The court then informed counsel:

We’re going to have to take about 15 minute break now, and we’re going to have to summon some more jurors. I asked the clerk to do that earlier. I don’t know what kind of progress she made.

When four additional jurors came in, Schwab’s attorney asked the clerk about her selection process. The clerk explained:

I basically went down my jury wheel list to see who is up next and if they were available, or if I knew they were working, just anybody that we could kind of think of that was not a working person, and I just gave them a call to see if they could come in on the spot.

She further explained that the prosecutor’s secretary helped her bring in additional jurors. Schwab’s attorney then asked for a mistrial, after which the clerk further explained that she did not call people who were related “[t]o the driver of the farming equipment, or to [the prosecutor], or that worked with him previously” whom she “knew would be excluded.” The clerk explained the prosecutor’s secretary did not participate in determining who would be called, but “I took a name off my jury wheel, and then she was with the phone book, and I asked her to give me the phone number.” The trial court denied Schwab’s motion for a mistrial:

THE COURT: The record should further reflect that when it became evident that we were going to be unable to select a jury from the panel that we had, I instructed the clerk to call at least four — or at least three additional jurors, and that’s when she left the courtroom and came out and went through this procedure that she’s now described.
So the record is made, and I’ll deny the motion for a mistrial. I think the fact that they are from the panel and that she was doing what she could to get people here that could be available for voir dire and so that we could not have to delay the trial, those were not inappropriate considerations. I don’t find that the screening amounts to anything more than trying to make sure that we’ve got enough people to pick a jury today.

[¶ 14] In contending her conviction should be reversed for failure to properly select the jurors, Schwab asserts: “The trial court, in not following the Jury Selection Plan in the jury selection process, discriminated against men, rural jurors and working folk, and predetermined challenges for cause, all without notice to the Appellant nor seeking Appellant’s input.” Schwab further argues:

Section 27-09.1-02 NDCC prohibits discrimination on the basis of sex or economic status. In this ease the clerk and the secretary called only women who they knew would be home and available, thereby eliminating the chance that any men would be selected for jury service and discriminated against people who were working (economic status) because the clerk acknowledged that if she knew they were working, she would not call them....
The result was that four women were selected for the jury and although four [women] jurors is [sic] not statistically impossible in a random selection, it appears that there was a sexual bias in this determination because the court can take judicial notice of the fact that as it is more likely the man, master of the household and provider for the family, who is more likely to be working than the woman, so there was sexual discrimination in this particular selection.

[¶ 15] “Persons accused of crimes have a right to trial by an impartial jury.” State v. Entzi, 2000 ND 148, ¶ 14, 615 N.W.2d 145. Section 27-09.1-01, N.D.C.C., “declares that it is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court.” Section 27-09.1-02, N.D.C.C., provides “[a] citizen may not be excluded from jury service in this state on account of race, color, religion, sex, national origin, physical disability, or economic status.”

A.

[¶ 16] “We review a trial court’s decision on whether to excuse a juror for cause under an abuse of discretion standard.” State v. Smaage, 547 N.W.2d 916, 919 (N.D.1996). Section 27-09.1-08, N.D.C.C., specifies a number of factors disqualifying people from jury service, none of which have been alleged to be applicable to any of the persons struck in this case. Section 29-17-33, N.D.C.C., provides a challenge for cause to a particular juror may be general or particular. Section 29-17-35, N.D.C.C., provides that particular causes of challenge are an implied bias, or an actual bias, which is defined as “[t]he existence of a state of mind on the part of the juror, with reference to the case or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially.” “[T]here is no evidence in the record that the jurors [Schwab] challenged for actual bias had an ‘actual predisposition against [her]’.” Smaage, at 919.

[¶ 17] Section 29-17-36, N.D.C.C., provides:

A challenge for implied bias of a juror may be taken for all or any of the following causes, and for no other:
1. Consanguinity or relationship to the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or to the defendant.
2. The relationship of guardian and ward, attorney and client, master and servant, landlord and tenant, or debtor and creditor, or membership in the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint, the prosecution was instituted, or employment by either.
3. Being a party adverse to the defendant in a civil action, or having complained against or been accused by him in a criminal prosecution.
4. Having served on the grand jury which found the indictment, or on a coroner’s jury which inquired into the death of a person whose death is the subject of the action.
5. Having served on a trial jury which has tried another person for the offense charged.
6. Having been one of a jury formerly sworn to try the same charge, and whose verdict was set aside, or which was discharged without a verdict, after the cause was submitted to it.
7. Having served as a juror in a civil action brought against the defendant for the act charged as an offense.
8. Repealed by S.L.1975, ch. 106, § 673.
9. Having served as a member of the jury panel within two years.

Section 29-17-36, N.D.C.C., does not specify a potential juror’s acquaintance with a possible witness as a cause for an implied bias challenge. See also People v. Levine, 99 Ill.App.3d 141, 55 Ill.Dec. 240, 426 N.E.2d 215, 233 (1981) (stating “mere fact that a prospective juror may be acquainted with prospective witnesses ... in the case is in and of itself not sufficient grounds to challenge for cause”); Fox v. State, 717 N.E.2d 957, 962 (Ind.Ct.App.1999) (stating a juror who knows a witness, but can “render a fair and impartial verdict,” need not be dismissed for cause); State v. Owens, 620 S.W.2d 448, 450 (Mo.Ct.App.1981) (stating “prolonged friendship by a venireman with a witness for a party, of itself, does not sustain a contention that the refusal of the challenge for cause by the trial court was an abuse of discretion — absent a clearly drawn prejudice”); 47 Am.Jur.2d Jury § 309 (1995) (stating a prospective juror is not disqualified by acquaintance with a witness). Furthermore, excusing potential jurors because of acquaintance with a possible witness would oftentimes make seating a jury difficult. As Justice Meschke observed, “in our state ... most jurors know something about every other person in the county, their families, or their businesses.” State v. Brooks, 520 N.W.2d 796, 802 (N.D.1994) (Meschke, J., concurring). While there was no basis for the trial court to grant Schwab’s motion “to strike for cause all those people who know Darrell Schulte,” the record reflects no objection to the motion. The State asserts it had no opportunity to object before the motion was granted but there was no objection by the State after the motion was granted.

B.

[¶ 18] “[A] criminal defendant has a right to a jury trial with an impartial jury selected from a representative cross-section of the community.” State v. Robles, 535 N.W.2d 729, 731 (N.D.1995). In a fair-cross-section challenge, a defendant must show the group alleged to be excluded is a distinctive group in the community, the representation of the group is not fair and reasonable in relation to the number of such persons in the community, and the group was systematically excluded in the jury selection process. Id. at 732-33. To prove systematic exclusion, a defendant must show the exclusion is inherent in the jury selection process used. Id. at 733. “A mere observation that there are no persons of the allegedly excluded class on a jury venire that was drawn from a population containing members of that class is not sufficient to demonstrate a systematic exclusion.” Id. at 733. Bare assertions, standing alone, are insufficient to show an underrepresentation of a distinct group. State v. Fredericks, 507 N.W.2d 61, 65 (N.D.1993). “To establish there was a substantial failure to comply with the statutory process requiring reversal, the complaining party must provide a factual basis showing the jury panel selection process was prejudicial, actually excluded, systematically excluded, or statistically excluded a fair cross section of the population.” State v. Palmer, 2002 ND 5, ¶ 6, 638 N.W.2d 18. A party’s “failure to provide any factual basis showing prejudice or systematic exclusion does not develop the record sufficiently to establish ‘a substantial failure to comply with [Chapter 27-09.1].’ See N.D.C.C. § 27-09.1-12(2).” State v. Torgerson, 2000 ND 105, ¶ 16, 611 N.W.2d 182.

[¶ 19] We conclude Schwab’s bare assertions of systematic exclusion of distinct groups are insufficient to show underrepresentation of any distinct groups and systematic exclusion of potential jurors.

[¶ 20] The trial court’s decision to grant Schwab’s improper motion created an unanticipated shortage of petit jurors. Rules have been adopted concerning selection of jurors.

[¶ 21] N.D. Sup.Ct. Admin. Order 9 provides, in part:

1. All courts conducting jury trials shall use jurors selected only pursuant to the Uniform Jury Selection and Service Act (N.D.C.C. ch. 27-09.1) and this Administrative Rule.
2. All courts conducting jury trials shall obtain jury panels in the manner prescribed by the jury selection plan filed with the Clerk of the North Dakota Supreme Court.

The jury selection plan filed with the clerk of this Court provides, in part:

All disqualifications and excuses, temporary or permanent, must be granted by the court. The judge of the court may delegate these duties or issue a policy covering normal circumstances, by attaching an order to that effect to this plan. The clerk will note the disqualifications and excuses on the master jury fist so that the status of prospective jurors is current at all times.
The judge of' the court may delegate routine decisions relating to qualifications and excuses to the clerk of court, court administrator, or other qualified person. The extent of the delegation and guidelines to be followed shall be in ■writing and attached to the selection plan.

By order of April 17, 2002, the presiding judge of the South Central Judicial District “delegate[d] routine decisions relating to qualifications and temporary excuses for jurors to Kim Wilkens, Clerk of District Court, Oliver County, North Dakota.”

[¶ 22] Legislation has been enacted to deal with a shortage of jurors.

[¶ 23] Section 27-09.1-09(2), N.D.C.C., provides:

If there is an unanticipated shortage of available petit jurors, the court may require the sheriff to summon a sufficient number of petit jurors selected at random by the clerk in a manner prescribed by the court.

See also N.D.C.C. § 29-17-13, which provides, in part:

If a sufficient number of jurors cannot be obtained from the box to form a trial jury, the court, as often as is necessary, may order the sheriff to summon from the body of the county as many persons qualified to serve as jurors as the court deems sufficient to form a jury.

[¶ 24] Because the prescribed procedures do not specifically govern the shortage of jurors at the time of trial, when the shortage developed, the trial court should have prescribed a selection procedure for the clerk of court to follow in summoning additional jurors. However, we agree with the trial court’s determinations that the additional jurors were “from the panel,” the clerk “was doing what she could to get people here that could be available for voir dire” without delaying the trial, and that the clerk’s screening process was nothing more “than trying to make sure that we’ve got enough people to pick a jury today.” Schwab has shown no prejudice from the process employed by the trial court and the clerk of court to remedy the shortage of jurors caused by granting Schwab’s motion.

[¶ 25] The judgment is affirmed.

[¶ 26] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.