text:
    2007 ND 89
    STATE of North Dakota, Plaintiff and Appellee v. William FALCONER, Defendant and Appellant.
    No. 20060210.
    Supreme Court of North Dakota.
    June 7, 2007.

      Tyrone Jay Turner, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Kent M. Morrow, Bismarck, N.D., for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] William Falconer appeals from a criminal judgment entered after a jury found him guilty of possession of methamphetamine with intent to manufacture, possession of drug paraphernalia for use with methamphetamine, possession of methamphetamine, and aggravated assault. We affirm in part, reverse in part, and remand.

I

[¶ 2] On April 20, 2005, Bismarck Police Officer Darrin Heinert was dispatched to a convenience store where he found Bridget Niska, who appeared to be the victim of an assault. Niska was being treated by medical personnel, and Officer Heinert observed she was covered in blood, had a bruised and swollen eye, and was visibly upset. Niska told Officer Hei-nert Falconer assaulted her in her apartment.

[¶ 3] Once Niska was transported to the hospital, Officer Heinert and a second police officer went to Niska’s apartment. The officers entered and performed an initial sweep of the apartment. No one was in the apartment, but the officers found evidence of the assault and items appearing to be illegal drug paraphernalia and other contraband. The officers believed they had found the crime scene and notified a supervisor, who requested detectives be dispatched to the location.

[¶ 4] Detective Cody Trom responded, after briefly interviewing Niska at the hospital. Detective Trom obtained Niska’s consent to search the apartment, but he was advised that Falconer also lived in the apartment and may be the only tenant listed on the lease. Based on this information, the officers sought and obtained a search warrant after they were unable to locate Falconer to get his consent to search the apartment.

[¶ 5] While Detective Trom was obtaining the search warrant, Detectives Roger Marks and Jason Stuglemeyer continued interviewing Niska at the hospital. The detectives observed Niska had heavy bruising on her eyes, a cut on her left eyelid, red marks and scratches on her throat, and scratches on her arms and legs. Niska told the detectives she had been using methamphetamine with Falconer during the early morning hours of April 20, 2005. She said she went into the bathroom and locked the door around 9:00 a.m. and Falconer kicked in the bathroom door surprising her. She stated Falconer was very upset, she was not able to calm him down, and he hit her in the face ten times before leaving the room. Niska told the detectives she went into the living room and Falconer followed her carrying a two and a half foot metal rod from a halogen lamp. She said they started arguing and Falconer removed her glasses because he did not want to break them. She told the detectives she tried to get clothes on to leave, but Falconer began choking her with the metal rod. She said she was able to get away from Falconer, grab the rod, and hit him on the head causing a laceration which bled profusely. Niska told the detectives she was afraid and tried to leave, but Falconer attacked her again, knocked her down, and choked her four or five times almost to the point of unconsciousness. She said she was eventually able to get away and run to a nearby convenience store, but she was afraid he would kill her for reporting the incident to the police. The detectives also questioned her about the drug paraphernalia in her apartment, and she said it belonged to Falconer. Detectives Marks and Stuglem-eyer finished the interview and went to Niska’s apartment to assist with executing the search warrant.

[¶ 6] While executing the search warrant, officers found a metal rod and blood splattered in the area Niska claimed the assault occurred, and they found the bathroom door’s latch was damaged and parts of the door jamb were shattered. The officers also found evidence of methamphetamine manufacturing and the use of controlled substances, including spoons with crusted white residue, empty pseu-doephedrine blister multi-packs, unopened pseudoephedrine blister multi-packs, plastic bottles with writing on the outside partially filled with a chemical solution later identified as containing methamphetamine, empty bottles containing a residue and chemical smell, a broken light bulb used as a smoking device for methamphetamine, a baggie of marijuana, a film canister containing a white crystalline substance later identified as methamphetamine, a mirror with a crystalline substance on its surface, funnels, coffee filters, a syringe, dishes with residual substances on them, cigarette rolling papers, and a cotton ball with methamphetamine residue on it. The officers observed the apartment’s vents were sealed off with duct tape. Officers also found clothes and shoes appearing to belong to a man of Falconer’s size. The evidence from the apartment was sent to the North Dakota State Crime Laboratory for analysis; many of the items tested positive for marijuana, methamphetamine, or chemicals that are the by-product of the methamphetamine manufacturing process.

[¶ 7] Niska was released from the hospital on April 20, 2005, after she was diagnosed with a possible rib fracture and her other injuries were treated. On April 21, 2005, Detectives Trom and Marks conducted a follow-up interview with Niska at her apartment. Niska was advised of her Miranda rights and was informed the detectives were conducting a more thorough investigation of the incident. Niska agreed to talk to the detectives. She told the detectives she would sometimes assist Falconer in manufacturing methamphetamine, but she claimed her role was limited to purchasing pseudoephedrine, removing the pills from the blister packages, and bringing Falconer clean water during the cook-off stage of the manufacturing process. She stated Falconer did most of the manufacturing alone and some parts of the process were completed at another location. Niska said Falconer completed part of the manufacturing process at their apartment on April 19, 2005, and he put a solution of methamphetamine and other solvents in plastic bottles with writing on them. She also told the detectives Falconer used duct tape to close off the apartment’s vents to contain the chemical smell during the methamphetamine manufacturing process.

[¶ 8] Based on the information the officers received from Niska and the evidence collected from the apartment, Falconer was arrested and charged with possession of methamphetamine with intent to manufacture, possession of methamphetamine, possession of drug paraphernalia for use with methamphetamine, possession of drug paraphernalia for use with marijuana, and aggravated assault.

[¶ 9] On January 26, 2006, Niska contacted Detective Marks advising him she wanted to recant her previous statements. Detective Marks asked Niska if the incident did not happen as she claimed. She said no and informed the detective she did not want to pursue the prosecution any further.

[¶ 10] A jury trial was held on March 28 and 29, 2006. The State subpoenaed Niska to testify, but she invoked her Fifth Amendment privilege against self-incrimination. She was granted use immunity under N.D.C.C. § 31-01-09 and was required to testify. Her trial testimony contradicted her previous statements to law enforcement. Niska testified Falconer was a close friend at the time of the incident and would stay with her occasionally, but she lived in the apartment by herself. She testified Falconer stayed with her on April 19, 2005, and she used methamphetamine that night, but she could not recall whether Falconer used any. Niska testified she was in the bathroom on the morning of April 20, 2005, when Falconer pushed the door open. She said he was mad at her for doing more drugs, and she testified about the assault:

THE STATE: And at any point did this turn physical?
NISKA: Yes, it did.
THE STATE: And is this the point when he struck you?
NISKA: I struck him.
THE STATE: Did he strike you in the face approximately 10 times?
NISKA: After I hit him.
THE STATE: Where did you hit him?
NISKA: I hit him in the back of the head with a metal rod.
THE STATE: It’s your testimony that he did not strike you 10 times while you were in the bathroom?
NISKA: No.
THE STATE: And where did you get the metal rod?
NISKA: It was part of a halogen lamp, and I had taken the lamp apart, and I had the rod sitting by the door.
THE STATE: That was in the bathroom with you?
NISKA: That happened out in the bedroom area.
THE STATE: Then he struck you 10 times in the face?
NISKA: No. He just kind of just, not really hit me, just kind of pushed me, asking me why.
THE STATE: Where did he just kind of hit you?
NISKA: Right here (indicating).
THE STATE: On the lower part of your face?
NISKA: Mm-hmm.
THE STATE: Did it hurt?
NISKA: No.
THE STATE: Were you crying?
NISKA: No.

She testified she could not recall whether he took her glasses off, but she said Falconer pushed her against the wall and choked her to calm her down after she hit him on the head. Niska said she fell down at some point and he kicked her in the ribs, but she eventually left and ran to a nearby convenience store to end the fight and prevent both of them from further harming each other. She also testified she manufactured methamphetamine by herself and Falconer did not help her. She did not remember talking to any of the detectives on April 20 or 21, 2005, and she testified that she lied in her previous statements to police. She could only recall contacting Detective Marks to recant her previous statements.

[¶ 11] The jury found Falconer guilty on all counts, except possession of drug paraphernalia for use with marijuana. Falconer appeals from the judgment of conviction.

II

[¶ 12] Prior to trial, Falconer submitted a list of proposed and requested jury instructions, including self-defense. The State objected, arguing Falconer was not entitled to a self-defense jury instruction because he was the initial aggressor and was not justified in using force. The district court agreed Falconer was the initial aggressor and denied his request for the self-defense instruction. Falconer argues the court erred in refusing to give the proposed self-defense jury instruction.

[¶ 13] “Jury instructions must correctly and adequately inform the jury of the applicable law....” State v. Olander, 1998 ND 50, ¶ 18, 575 N.W.2d 658. A defendant cannot be found guilty unless the State proves every element of the offense beyond a reasonable doubt, and an element of an offense means “ ‘the nonexistence of a defense as to which there is evidence in the case sufficient to give rise to a reasonable doubt on the issue.’ ” Id. at ¶¶ 19-20 (quoting N.D.C.C. § 12.1-01-03(l)(e)). A defendant is entitled to a jury instruction on a defense if there is evidence that creates a reasonable doubt about an element of the charged offense. Id. at ¶20. A defendant is entitled to a self-defense jury instruction if there is evidence to support it, and the State must prove beyond a reasonable doubt the defendant did not act in self-defense. State v. Gresz, 2006 ND 135, ¶ 6, 717 N.W.2d 583; Olander, at ¶ 20. Whether there is sufficient evidence to support a jury instruction is viewed in the light most favorable to the defendant. Gresz, at ¶ 6.

[¶ 14] Self-defense is defined in N.D.C.C. § 12.1-05-03:

A person is justified in using force upon another person to defend himself against danger of imminent unlawful bodily injury ... except that:
2. A person is not justified in using force if:
b. He has entered into a mutual combat with another person or is the initial aggressor unless he is resisting force which is clearly excessive in the circumstances. A person’s use of defensive force after he withdraws from an encounter and indicates to the other person that he has done so is justified if the latter nevertheless continues or menaces unlawful action.

[¶ 15] The district court concluded Falconer was not entitled to a self-defense jury instruction because he kicked in the bathroom door and therefore was the initial aggressor. The court’s finding that Falconer was the initial aggressor is supported by the evidence. However, an initial aggressor is justified in using force and is entitled to a self-defense jury instruction if he is resisting force which is clearly excessive under the circumstances. N.D.C.C. § 12.1 — 05—03(2) (b).

[¶ 16] Niska testified Falconer was mad at her and pushed in the bathroom door. But, Niska further testified Falconer left the bathroom and she followed him, grabbed a metal rod, and hit him over the head, causing a laceration that bled profusely. Niska testified Falconer did not hit her until after she hit him on the head and he choked her to calm her down. There was evidence Falconer was the initial aggressor but Niska responded with force that was clearly excessive under the circumstances and Falconer had to use force to resist her. Viewing the evidence in a light most favorable to Falconer, we conclude there was evidence to support a self-defense claim. Whether Niska’s testimony is credible and whether Falconer’s conduct in resisting Niska’s possible excessive use of force was reasonable are questions for the jury. Cf. State v. Cox, 532 N.W.2d 384, 388 (N.D.1995) (reasonableness of defendant’s conduct in resisting an unlawful arrest is a question for the jury).

[¶ 17] After carefully reviewing the record, we conclude evidence supported a self-defense claim and Falconer was entitled to a jury instruction on self-defense. The district court erred by failing to instruct the jury on self-defense, and We reverse Falconer’s aggravated assault conviction and remand for a new trial.

III

[¶ 18] Falconer claims the district court erred when it allowed the State to issue a grant of use immunity to Niska under N.D.C.C. § 31-01-09 because the statutory requirements were not met.

[¶ 19] The ability to challenge a grant of immunity is personal, like the ability to assert the privilege against self-incrimination, and therefore a defendant does not have standing to challenge a grant of immunity to another person. See, e.g., United States v. Neal, 743 F.2d 1441, 1445 (10th Cir.1984); United States v. Lewis, 456 F.2d 404, 409 (3d Cir.1972); State v. Kingbird, 412 N.W.2d 350, 354 (Minn.Ct.App.1987). We conclude Falconer does not have standing to challenge whether Niska’s immunity was properly granted.

IV

[¶ 20] Falconer argues his convictions for possession of methamphetamine with intent to manufacture, possession of methamphetamine, and possession of drug paraphernalia for use with methamphetamine should be reversed because there was insufficient independent evidence to corroborate Niska’s testimony. The district court concluded Niska was an accomplice to the drug offenses and, therefore, N.D.C.C. § 29-21-14 requires her testimony be corroborated by some independent evidence tending to connect Falconer with the drug offenses. Falconer claims the evidence presented at trial was insufficient because there was no evidence that he actually possessed any of the drugs or paraphernalia or that he was even in Nis-ka’s apartment.

[¶ 21] A defendant cannot be convicted of a crime solely upon an accomplice’s testimony. State v. Hogie, 454 N.W.2d 501, 503 (N.D.1990). Section 29-21-14, N.D.C.C., requires an accomplice’s testimony be corroborated by independent evidence:

A conviction cannot be had upon the testimony of an accomplice unless he is corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.

Corroborative evidence is used to demonstrate an accomplice is a reliable and credible witness. Hogie, at 503. We have said,

every fact given by an accomplice need not be corroborated. All that is needed is other evidence corroborating one or more material details or facts which tend to connect the defendant with the crime. The prosecution need not point to a single, isolated item which in itself is corroborative. Rather, the combined and cumulative evidence other than the testimony of an accomplice may tend to connect the defendant to the crime. Circumstantial as well as direct evidence can be corroborative.

Id. at 503-504 (citations omitted).

[¶22] The existence of corroborating evidence is a question of law, but whether evidence is sufficient to corroborate the accomplice’s testimony is a question for the jury. Hogie, 454 N.W.2d at 503. If independent evidence tends to connect a defendant to the crime, it is for the jury to weigh the evidence with the accomplice’s testimony and decide the guilt or innocence of the defendant. Id. at 504. This court may reverse a judgment based upon a verdict of guilty only when there is no corroborating evidence. State v. Haugen, 449 N.W.2d 784, 785 (N.D.1989).

[¶ 23] Here, the district court found there was some corroborating evidence, and submitted the issue of the sufficiency of the evidence to the jury. We reverse only if there is no corroborating evidence, and in this case, we conclude there was corroborating evidence. The police officers found clothing in the apartment, including shoes, that were too big for Niska and appeared to be Falconer’s size. Niska testified Falconer stayed at her apartment the night before the assault and he would often bring clothing when he stayed overnight. The officers found a metal rod and fresh blood splattered in the area between the living room and bedroom, where Niska claimed she hit Falconer over the head with the metal rod. Niska’s clothing was covered in blood, and she did not have any large lacerations where the blood may have come from. Officers found the damaged bathroom door and the shattered door jamb, which corroborated Niska’s initial account of the assault. While much of this evidence is circumstantial, it corroborates Niska’s initial statements to law enforcement.

[¶ 24] Falconer claims this evidence is insufficient because there was no evidence that he actually possessed any of the drugs or paraphernalia. But the corroborating evidence does not have to be sufficient, in itself, to warrant a conviction or establish a prima facie case. Haugen, 449 N.W.2d at 786. Moreover, the corroborating evidence does not have to be direct evidence of the defendant’s participation in the crime. State v. Fraser, 2000 ND 53, ¶ 21, 608 N.W.2d 244. “While evidence of presence alone may not always be enough to convict, ‘presence at or near the scene of a crime, together with other circumstances, is sufficient to corroborate an accomplice’s testimony and to convict.’ ” State v. Esparza, 1998 ND 13, ¶ 10, 575 N.W.2d 203 (quoting State v. Torres, 529 N.W.2d 853, 855 (N.D.1995)).

[¶ 25] Here, the independent evidence corroborates Niska’s initial statements to law enforcement and her testimony that Falconer was at her apartment on April 20, 2005. This independent evidence placing Falconer at Niska’s apartment is sufficient to tend to connect Falconer to the drug offenses. “A person may be guilty of willful possession of a controlled substance by either being in actual or constructive ... possession.” State v. Woinarowicz, 2006 ND 179, ¶ 29, 720 N.W.2d 635. “Constructive possession may be established by showing the defendant had the power and ability to exercise dominion and control over the controlled substance.” In re L.A.G., 1999 ND 219, ¶ 12, 602 N.W.2d 516. The accused’s presence in the place where the substance is found, the accused’s proximity to the place where the substance is found, and whether the substance is in plain view may be considered. Woinarowicz, at ¶ 29.

[¶ 26] According to the police officers’ testimony, Niska’s apartment was small. Officer Darrin Heinert testified that when he first entered Niska’s apartment he saw a mirror with what appeared to be methamphetamine on it on the kitchen counter between the stove and sink in plain view. Detective Marks testified he found a wooden bucket containing two spoons with what appeared to be methamphetamine residue in the bathroom next to the toilet. Detective Stugelmeyer testified a spoon and cotton ball with methamphetamine residue were found in plain view in the kitchen. The officers also found glass dishes with a residue next to the kitchen sink, plastic bottles with a chemical residue and emitting a chemical odor in the kitchen, and packs of pseudoephedrine in the living room couch. The officers found methamphetamine, methamphetamine manufacturing equipment, and paraphernalia in plain view.

[¶ 27] While much of the corroborating evidence is circumstantial, the combined and cumulative evidence places Falconer in Niska’s apartment and tends to connect him to the drug offenses. Whether the evidence was sufficient is a question for the jury, and we will not reverse so long as there is some corroborating evidence. Haugen, 449 N.W.2d at 785. We conclude the requirements of N.D.C.C. § 29-21-14 were met, the court did not err in submitting the case to thi'e jury. We affirm Falconer’s drug convictions.

V

[¶ 28] We affirm Falconer’s convictions for possession of methamphetamine, possession of methamphetamine with intent to manufacture, and possession of methamphetamine paraphernalia. We reverse Falconer’s aggravated assault conviction and remand for a new trial.

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


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2007 ND 86
    STATE of North Dakota, Plaintiff and Appellee v. Ronald Gene ALBAUGH, Defendant and Appellant.
    No. 20060334.
    Supreme Court of North Dakota.
    June 7, 2007.

      Tracy Jo Peters, Assistant State’s Attorney, Fargo, ND, for plaintiff and appellee.
    William Kirschner, Fargo, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Ronald Albaugh appeals from a judgment entered upon a N.D.R.Crim.P. 11 conditional plea agreement, which reserved the right to appeal the court’s denial of his motion to suppress evidence. Concluding the officer was engaged in a valid community caretaking encounter when he entered the premises and was acting upon the express consent of the defendant when he discovered the illegal contraband in plain view, we affirm.

I

[¶ 2] On September 17, 2005, West Fargo police officer Ken Zeeb was dispatched to a commercial shop structure in West Fargo. The building’s landlord, Norm Diede, had called the police department to check on his property after he had served an eviction notice on a tenant. Die-de was concerned someone was still in possession of the premises. Diede stated he wanted the police present just in case someone was there and to prevent any problems that may arise if he encountered anyone at the shop.

[¶ 3] Upon arriving at the shop, Zeeb spoke with Diede outside. Diede informed the officer that he was “there to verify that everybody and everything had been removed, and he wanted the West Fargo Police there in case somebody was there and there would be problems that would arise.” While Diede entered the building, Zeeb stood in the doorway. Zeeb heard Diede speaking with someone inside, so he entered the shop until he could see the person with whom Diede was speaking. Diede was speaking with the defendant, Albaugh. Albaugh’s brother, Robert, owned Albaugh Construction, the tenant business. Albaugh had been sleeping at the shop in the upstairs office/loft area with Robert Albaugh’s permission.

[¶ 4] Zeeb asked Albaugh if he had any identification on him. Albaugh tried to find his identification in a vehicle inside the shop. When he could not find it, he told Officer Zeeb it might be upstairs. Zeeb asked if Albaugh minded if he came up with him. Albaugh responded, “Okay, and motioned with his hand for [Zeeb] to follow him.” Zeeb followed Albaugh upstairs. In plain view on the coffee table, Zeeb noticed a small baggie of what he thought was methamphetamine and some marijuana paraphernalia. Upon seeing this contraband, Zeeb arrested Albaugh.

[¶ 5] Immediately following the arrest, Zeeb searched the area in the immediate vicinity of the defendant. During this search, Officer Zeeb located additional drug paraphernalia. Zeeb then moved Al-baugh from the upstairs area and placed him in the patrol car. Zeeb called in a detective to question Albaugh. Detective Brad Berg arrived at the scene shortly after the call. Berg Mirandized Albaugh and questioned him. During the questioning, Albaugh conceded the drug paraphernalia Officer Zeeb found was his. Albaugh told Detective Berg that there was more paraphernalia in one of the cars outside the shop. Before retrieving the paraphernalia, Detective Berg asked Albaugh if he would consent to a broader search of the shop and the vehicles. Albaugh orally consented, but Detective Berg prepared a written consent to memorialize the agreement. The written consent allowed the officers to search the entire shop and several vehicles located on the premises. The written consent provided that the search was voluntary and was not premised on any threats or promises being made. Al-baugh was informed verbally and in writing that he could refuse to sign the consent form. Albaugh was given time to read the consent form and to ask questions about it. After reading the consent, Albaugh signed it. The officers then retrieved the drug paraphernalia Albaugh had mentioned during his conversation with Detective Berg.

[¶ 6] Albaugh moved to suppress the evidence on the basis that Officer Zeeb illegally entered the shop without a warrant and all subsequently found items should be suppressed because they are the “fruit of the poisonous tree.” The district court denied Albaugh’s motion.

II

[¶ 7] On appeal, Albaugh argues the evidence should have been suppressed because Officer Zeeb did not have a warrant and had no permission or authority to enter the shop. The State argues Officer Zeeb was engaged in a proper community caretaking function, which did not constitute a “search” for Fourth Amendment purposes. The State also argues the evidence seized without a warrant falls within the “plain view” exception to the search warrant requirement and the subsequent searches of the shop and vehicles were valid under the “consent” exception to the search warrant requirement.

III

[¶ 8] The standard of review for a district court’s decision on a motion to suppress evidence is well established. As this Court recently wrote in State v. Goebel, 2007 ND 4, 725 N.W.2d 578:

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. State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. We recognize that the district court is in a superior position to assess the credibility of witnesses and weigh the evidence. State v. Woinarowicz, 2006 ND 179, ¶ 20, 720 N.W.2d 635 (citations omitted). Generally, a district court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the district court’s findings, and if its decision is not contrary to the manifest weight of the evidence. Id. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law. Graf, at ¶ 7.

Goebel, at ¶ 11. In this case, the district court held:

1. The entry of Officer Zeeb into the premises was a legitimate activity, not protected by the Fourth Amendment.
2. The subsequent seizure of items found on the coffee table was pursuant to the plain view exception after the Defendant consented to have the officer follow him upstairs.
3. The items in Defendant’s immediate area were found subsequent to a search incident to a valid arrest.
4. After the Defendant’s arrest, the rest of the [property] was found pursuant to a signed written consent, and is therefore valid.
5. The motion to suppress is DENIED.

IV

[¶ 9] Albaugh argues Officer Zeeb’s initial entry into the shop was illegal. Under the circumstances, we conclude Zeeb’s entry was reasonable.

[¶ 10] “Unreasonable searches and seizures are prohibited by the U.S. Const, amend. IV and N.D. Const. art. I, § 8.” Woinarowicz, 2006 ND 179, ¶ 21, 720 N.W.2d 635. Generally, a warrantless entry and search is constitutionally impermissible unless it falls within a recognized exception to the search warrant requirement. See id.; State v. Genre, 2006 ND 77, ¶ 17, 712 N.W.2d 624. The warrant requirement protects an individual’s reasonable expectations of privacy. See State v. Proell, 2007 ND 17, ¶ 8, 726 N.W.2d 591. As a long-term guest, Albaugh had a reasonable expectation of privacy in the shop. State v. Oxen, 2006 ND 138, ¶¶ 8-9, 717 N.W.2d 593; State v. Ackerman, 499 N.W.2d 882, 884 (N.D.1993) (citing Minne sota v. Olson, 495 U.S. 91, 98-99, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990)). Because this property was commercial, however, Al-baugh’s expectation of privacy is less than it would be in a residential property. See New York v. Burger, 482 U.S. 691, 699-700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (“An expectation of privacy in commercial premises ... is different from, and indeed less than, a similar expectation in an individual’s home.”).

[¶ 11] Not all police encounters implicate the Fourth Amendment. This Court has recognized “several permissible types of law enforcement-citizen encounters, including: (1) arrests, which must be supported by probable cause; (2) ‘Terry* stops, seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) community caretaking encounters, which do not constitute Fourth Amendment seizures.” State v. Boyd, 2002 ND 203, ¶ 6, 654 N.W.2d 392 (quotations omitted). A Fourth Amendment “seizure” occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.... ” State v. Bachmeier, 2007 ND 42, ¶ 10, 729 N.W.2d 141 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

[¶ 12] The district court in this ease considered Zeeb’s entry into the shop a legitimate activity under the community caretaker law enforcement function. The community caretaker function can be described as citizen-law enforcement encounters “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Boyd, 2002 ND 203, ¶ 7, 654 N.W.2d 392 (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)). When considering whether an encounter can be properly characterized under the community caretaker function, this Court has considered the manner in which the encounter occurred, any orders directed at the citizen, or a demand for a response. Id.; State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992). “However, even a casual encounter can become a seizure if a reasonable person would view the officer’s actions — if done by another private citizen — as threatening or offensive.” Boyd, at ¶ 7 (citing Langseth, at 300). “This may occur through an order, a threat, or a weapon display.” Id. (citing Langseth, at 300). In situations where it is obvious that a citizen neither needs nor desires assistance, the community caretaker function is inapplicable. Rist v. N.D. Dep’t of Transp., 2003 ND 113, ¶ 9, 665 N.W.2d 45; City of Jamestown v. Jerome, 2002 ND 34, ¶ 8, 639 N.W.2d 478; State v. DeCoteau, 1999 ND 77, ¶ 21, 592 N.W.2d 579.

[¶ 13] The essential inquiry is whether Zeeb had the right to enter the shop. The district court found “Officer Zeeb entered the premises through an open and unlocked door at the request of the landlord. ...” (Emphasis added). By the tenant’s concession and the terms of the lease, the landlord had the right to enter the shop. The tenant, Albaugh’s brother, testified he was three months behind in rent and acknowledged the landlord had the right of entry if he defaulted on the terms of the lease. The landlord was the individual for whom Zeeb was performing the community caretaker function. The landlord requested Zeeb to be present in case he encountered a tenant or problems arose. Officer Zeeb had a reasonable belief that the shop was expected to be empty and in the event the landlord encountered someone in the shop, his assistance would be needed. Zeeb waited outside the shop, which, according to Detective Berg, was “a public business,” with one door “apparently for public access to what appeared to be a public business.”

[¶ 14] In State v. Kitchen, 1997 ND 241, ¶¶ 13-15, 572 N.W.2d 106, this Court acknowledged certain areas of a home were entitled to extremely limited Fourth Amendment protection because no individual could reasonably expect a great amount of privacy in an area where the public was welcome. See also 1 Wayne R. LaFave, Search and Seizure § 2.3(f) at 600-603 (4th ed.2004). Similarly, no individual could reasonably expect a great amount of privacy in a commercial business location, where the public was apparently welcome. Cf. Kitchen, at ¶¶ 13-15; see also Burger, 482 U.S. at 699-700, 107 S.Ct. 2636 (noting the limited expectation of privacy in a commercial premises). We conclude Officer Zeeb’s entry was reasonable under the circumstances in light of the landlord’s request for and consent to the officer’s presence, the expectation the shop was supposed to be vacant, and the lesser expectation of privacy due to the commercial nature of the property.

V

[¶ 15] Albaugh also claims Officer Zeeb had no authority to demand he produce his identification. Albaugh claims the officer’s request was an order or demand for compliance under Boyd, 2002 ND 203, ¶ 10, 654 N.W.2d 392, which removes the officer’s actions from the realm of a community caretaker. Albaugh misehar-acterizes the facts on appeal. The record indicates Officer Zeeb did not demand Al-baugh produce his identification. Officer Zeeb testified he asked Albaugh “if he had any identification on him.” Albaugh could have refused Officer Zeeb’s request. See State v. Halfmann, 518 N.W.2d 729, 731 (N.D.1994) (holding that where an officer interacts with a citizen in a conversational manner, makes no orders, and does not demand a response, no Fourth Amendment seizure has occurred). There is no indication in the record that this conversation was anything but casual, consensual, and civil. Albaugh’s claim fails.

VI

[¶ 16] Albaugh claims the evidence seized during the encounter must be suppressed under the exclusionary rule unless the warrantless seizure fits within a clearly delineated exception to the warrant requirement. Having held the entry into the shop was reasonable under the circumstances, we address the clearly delineated exceptions to the search warrant requirement applicable in this case.

A

[¶ 17] Albaugh claims his consent for the officer to follow him upstairs, where the officer observed drug contraband in plain view, was merely an acquiescence “to the officer’s apparent authority to do whatever he wished.” The district court, however, found it was undisputed that Albaugh consented to the officer’s request to follow Albaugh upstairs. Al-baugh presented no evidence his consent was not genuine or that it was coerced in any manner. We defer to the district court’s findings of fact that consent was given. See Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. We conclude Albaugh consented to the officer’s request to follow him to the upstairs area.

B

[¶ 18] Once upstairs, Officer Zeeb observed drug paraphernalia in plain view on the coffee table. Plain view is a clearly delineated exception to the search warrant requirement. Under the plain view exception, police officers may seize a clearly incriminating object without a warrant if the officers are lawfully in a position from which they view an object and the object’s incriminating character is immediately apparent. State v. Wamre, 1999 ND 164, ¶ 16, 599 N.W.2d 268 (citing Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Horton v. California, 496 U.S. 128, 135-36, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). In Wamre, we held:

[I]f contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no “search” ... or at least no search independent of the initial intrusion that gave the officers their vantage point.

Id. at ¶ 16 (quotations omitted). Here, Officer Zeeb was in a lawful vantage point when he observed the marijuana paraphernalia and the baggie of what appeared to be methamphetamine. Officer Zeeb properly seized the evidence without a warrant and arrested Albaugh for its possession. See id.

C

[¶ 19] After Albaugh was arrested, the search of the immediate area was valid as a search incident to an arrest. A search incident to a valid custodial arrest is one exception to the warrant requirement. The U.S. Supreme Court defined the scope of this exception in Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which held an officer making a lawful custodial arrest may search the arrestee and the area within the arrestee’s immediate control. See also State v. Linghor, 2004 ND 224, ¶ 5, 690 N.W.2d 201. “A search incident to arrest is justified because ‘[a] custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification ... [i]t is the fact of the lawful arrest which establishes the authority to search.’ ” State v. Overby, 1999 ND 47, ¶ 7, 590 N.W.2d 703 (quoting United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)).

[¶ 20] Here, Albaugh was told he was under arrest. After Officer Zeeb arrested Albaugh, the officer conducted a search of the immediate area, where Zeeb found additional drug paraphernalia. Zeeb testified he searched “the coffee table, and the couch, and there might have been another stand, all kind of right there where we were standing.” This additional drug paraphernalia was located within Albaugh’s immediate area. Therefore, this search was reasonable under the search incident to the arrest exception to the search warrant requirement.

D

[¶ 21] Albaugh consented to the subsequent searches of the shop and vehicles surrounding the shop area. Consent is another clearly delineated exception to the warrant requirement. Woinarowicz, 2006 ND 179, ¶ 21, 720 N.W.2d 635; Genre, 2006 ND 77, ¶ 17, 712 N.W.2d 624. Whether an officer has consent is a question of fact. State v. Mitzel, 2004 ND 157, ¶ 13, 685 N.W.2d 120. Here, the district court found Albaugh had consented to the searches. On appeal, Albaugh acknowledges he consented to the searches conducted shortly after his arrest. Albaugh signed a written “Permission to Search” form, which was witnessed by Detective Berg and Officer Zeeb. The consent form provides:

I am giving this written permission to these officers freely and voluntarily, without any threats or promises having been made, and after having been informed by said officer that I have a right to refuse this search and/or seizure.

Detective Berg testified he explained this form to Albaugh, allowed him to read it, and then offered to answer any of Al-baugh’s questions about the consent form. On this record, there is no indication Al-baugh lacked the capacity to consent, was illiterate, was underage, or did not give the consent, freely, voluntarily, or in an intelligent manner. The written consent, along with oral consent, clearly indicated Al-baugh granted Zeeb and Berg authority to search the shop and the vehicles. The subsequent searches were valid under the consent exception to the warrant requirement.

VII

EH 22] We affirm the district court’s judgment.

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


author: SANDSTROM, Justice.

text:
    2007 ND 90
    STATE of North Dakota, ex rel. Wayne STENEHJEM, Attorney General, Plaintiff and Appellee v. PHILIP MORRIS, INCORPORATED, Brown & Williamson Tobacco Corporation, Lorillard Tobacco Company, R.J. Reynolds Tobacco Company, Liggett Group Inc., United States Tobacco Manufacturing Company Inc., and United States Tobacco Sales and Marketing Company Inc., Defendants Philip Morris, Incorporated, Lorillard Tobacco Company, and R.J. Reynolds Tobacco Company, Defendants and Appellants State of North Dakota, ex rel. Wayne Stenehjem, Attorney General, Plaintiff and Appellee v. Philip Morris, Incorporated, Brown & Williamson Tobacco Corporation, Lorillard Tobacco Company, R.J. Reynolds Tobacco Company, Liggett Group Inc., United States Tobacco Manufacturing Company Inc., and United States Tobacco Sales and Marketing Company Inc., Defendants Commonwealth Brands, Inc., Daughters & Ryan, Inc., Farmers Tobacco Company of Cynthiana, Inc., House of Prince A/S Japan Tobacco International U.S.A., Inc., King Maker Marketing, Inc., Kreteck International, Inc., Liberty Brands, LLC, Liggett Group LLC, Peter Stokkebye Tobaksfabrik A/S, P.T. Djarum, Santa Fe Natural Tobacco Company, Inc., Sherman’s 1400 Broadway N.Y.C., Inc., Top Tobacco, L.P., Vibo Corporation d/b/a General Tobacco, Virginia Carolina Corporation, Inc., and Von Eicken Group, Appellants.
    Nos. 20060207, 20060213.
    Supreme Court of North Dakota.
    June 7, 2007.

      Todd Adam Sattler, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for plaintiff and appellee.
    Stephen R. Patton (argued on behalf of Original Participating Manufacturers), Kirkland & Ellis LLP, Chicago, Ill., and Lawrence Bender (appeared), Pearce & Durick, Bismarck, N.D., for defendant and appellant R.J. Reynolds Tobacco Company.
    Patrick J. Ward (appeared) and Lawrence E. King (appeared), Zuger Kirmis & Smith, Bismarck, N.D., for defendants Philip Morris, Incorporated and Brown & Williamson Tobacco Corporation; and Thomas J. Frederick (appeared), Winston & Strawn, Chicago, Ill., for defendant and appellant Philip Morris, Incorporated.
    Gayle E. Rosenstein (on brief), Weil, Gotshal & Manges LLP, Shores, Cal., for defendant and appellant Lorillard Tobacco Company.
    Robert J. Brookhiser (argued on behalf of Subsequent Participating Manufacturers) and Elizabeth B. McCallum (on brief), Howrey LLP, Washington, DC, and Gary R. Wolberg (appeared), Fleck, Mather & Strutz, Bismarck, N.D., for appellants Commonwealth Brands, Inc., Daughters & Ryan, Inc., Farmers Tobacco Company of Cynthiana, Inc., House of Prince A/S Japan Tobacco International U.S.A., Inc., King Maker Marketing, Inc., Kreteck International, Inc., Liberty Brands, LLC, Liggett Group LLC, Peter Stokkebye To-baksfabrik A/S, P.T. Djarum, Santa Fe Natural Tobacco Company, Inc., Sherman’s 1400 Broadway N.Y.C., Inc., Top Tobacco, L.P., Vibo Corporation d/b/a General Tobacco, Virginia Carolina Corporation, Inc., and Von Eicken Group.
   SANDSTROM, Justice.

[¶ 1] Philip Morris, Inc., and several other tobacco manufacturers appealed from a district court order denying their motion to compel arbitration of a dispute with the State over the payment of tobacco settlement funds. We conclude the plain and unambiguous language of the parties’ settlement agreement requires arbitration of their dispute over application of the diligent enforcement exemption to the agreement’s non-participating manufacturer adjustment. We reverse and remand for entry of an order compelling arbitration.

I

[¶ 2] In the mid-1990s, North Dakota and numerous other states sued Philip Morris, Inc., Brown & Williamson Tobacco Corp., R.J. Reynolds Tobacco Co., Inc., and Lorillard Tobacco Co., Inc., alleging that the tobacco companies had conspired for decades to conceal the health risks related to smoking and the addictiveness of nicotine from the American public, and that the companies had intentionally targeted minors through their marketing and promotional efforts. The states sought damages for the cost to the public of treating smoking-related illnesses. On November 23, 1998, North Dakota, 45 other states, the District of Columbia, the Commonwealth of Puerto Rico, and four United States territories entered into a comprehensive “Master Settlement Agreement” with the tobacco companies.

[¶ 3] Under the master settlement agreement, the plaintiffs are referred to as the “Settling State[s],” and the defendant tobacco companies are referred to as the “Original Participating Manufacturers.” The settlement agreement allowed other tobacco companies not named as defendants to join the agreement, and those that joined are referred to as “Subsequent Participating Manufacturerfe].” The original and subsequent manufacturers are collectively referred to in the settlement agreement as “Participating Manufactur-erfe],” and tobacco companies that did not join the agreement are referred to as “Non-Participating Manufacturerfe].”

[¶ 4] The settlement agreement provided that the settling states would dismiss their lawsuits and release past and future claims against the participating manufacturers in exchange for regular annual payments from the participating manufacturers and extensive restrictions on their marketing, advertising, and lobbying. The participating manufacturers are required to make a single nationwide payment into an escrow account by April 15 of each year, and the payment is then allocated among the settling states in accordance with agreed upon percentages. North Dakota receives 0.3660138 percent of each payment. Of the more than $47 billion dollars paid to the settling states since the agreement became effective, North Dakota has received more than $174 million, which has been deposited in the Tobacco Settlement Trust Fund established under N.D.C.C. § 54-27-25.

[¶ 5] The participating manufacturers’ annual payment obligation is determined by an “Independent Auditor,” currently PricewaterhouseCoopers, under a detailed formula. An aggregate base payment amount is determined for the calendar year according to a list of yearly payments contained in the settlement agreement, and then various adjustments and offsets are applied. One of the adjustments is the “[Non-Participating Manufacturer] Adjustment.” Because non-participating manufacturers are not subject to the settlement agreement’s payment obligations and marketing restrictions, the settlement agreement allows a reduction of the participating manufacturers’ annual payment obligation if: (1) the participating manufacturers prove they have collectively lost market share of more than two percent to the non-participating manufacturers compared to their combined market share before the settlement agreement went into effect, and (2) an independent firm of economic consultants finds that the settlement agreement was a “significant factor” contributing to that market share loss.

[¶ 6] A settling state, however, may avoid the non-participating manufacturer adjustment under subsection IX(d)(2)(B) of the agreement “if such Settling State continuously had a Qualifying Statute ... in full force and effect during the entire calendar year immediately preceding the year in which the payment in question is due, and diligently enforced the provisions of such statute during such entire calendar year.” A “Qualifying Statute” is defined in subsection IX(d)(2)(E) of the agreement as a “Settling State’s statute ... that effectively and fully neutralizes the cost disadvantages that the Participating Manufacturers experience vis-a-vis Non-Participating Manufacturers within such Settling State as a result of the provisions of this Agreement.” North Dakota enacted its qualifying statute in 1999 on the basis of a model statute included as an exhibit in the settlement agreement. See N.D.C.C. ch. 51-25. If a settling state is subject to this “diligent enforcement” exemption, the agreement requires that the independent auditor reallocate that state’s share of the non-participating manufacturer adjustment among other settling states that do not qualify for the exemption pro rata in proportion to their respective allo-cable shares.

[¶ 7] In each settling state, the court that approved the settlement agreement and entered the corresponding consent decree is that state’s master settlement agreement court. The December 23, 1998, consent decree gives the District Court of Cass County, East Central Judicial District, jurisdiction over the implementation and enforcement of the settlement agreement. Subsection VII(a) of the agreement provides in relevant part:

(a) Jurisdiction. Each Participating Manufacturer and each Settling State acknowledge that the Court: (1) has jurisdiction over the subject matter of the action identified in Exhibit D in such Settling State and over each Participating Manufacturer; (2) shall retain exclusive jurisdiction for the purposes of implementing and enforcing this Agreement and the Consent Decree as to such Settling State; and (3) except as provided in subsections IX(d), XI'(c) and XVII(d) and Exhibit 0, shall be the only court to which disputes under this Agreement or the Consent Decree are presented as to such Settling State,

(emphasis added). The relevant exception here, subsection XI(c) of the agreement, provides:

(C) Resolution of Disputes. Any dispute, controversy or claim arising out of or relating to calculations performed by, or any determinations made by, the Independent Auditor (including, without limitation, any dispute concerning the operation or application of any of the adjustments, reductions, offsets, carry-forwards and allocations described in subsection IX(j) or subsection XI(i)) shall be submitted to binding arbitration before a panel of three neutral arbitrators, each of whom shall be a former Article III federal judge. Each of the two sides to the dispute shall select one arbitrator. The two arbitrators so selected shall select the third arbitrator. The arbitration shall be governed by the United States Federal Arbitration Act.

[¶ 8] The dispute in this case concerns the independent auditor’s refusal to apply the non-participating manufacturer adjustment to the participating manufacturers’ April 2006 annual payment, a dispute which actually began in 2004. In March 2004, the independent auditor determined that the participating manufacturers had experienced a market share loss in 2003, and the economic consulting firm determined that the settlement agreement was a significant factor contributing to that market share loss. The independent auditor calculated the non-participating manufacturer adjustment but did not apply the adjustment to reduce the participating manufacturers’ payment. Settling states, including North Dakota, had urged the independent auditor to “presume” their qualifying statutes had been diligently enforced, and the independent auditor concluded: “[A]ll Settling States have enacted Model Statutes and represent [sic] to have been in full force and effect continuously since the indicated effective date; therefore, no possible [non-participating manufacturer] adjustment is allocated to the [participating manufacturers].” Some participating manufacturers commenced litigation over the issue in states other than North Dakota.

[¶ 9] Faced with the same situation in 2006, the independent auditor refused to offset the participating manufacturers’ annual payment by the non-participating manufacturer adjustment. In a March 7, 2006, notice of preliminary calculations, the independent auditor explained:

The Independent Auditor has received information request responses from some [Participating Manufacturers] denying that some Settling States have “continuously had a Qualifying Statute in full force and effect during the entire calendar year immediately preceding the year in which the payment in question is due [1999-2005], and diligently enforced the provisions of such statute during such entire calendar year” (subsection IX(d)(2)(B) of the [Master Settlement Agreement]). The Settling States do not agree with this position. The Independent Auditor is not charged with the responsibility under the [Master Settlement Agreement] of making a determination regarding this issue. More importantly, the Independent Auditor is not qualified to make the legal determination as to whether any particular Settling State has “diligently enforced” its Qualifying Statute. Additionally, the Independent Auditor is aware of certain litigation that is ongoing related to this issue. Until such time as the parties resolve this issue or the issue is resolved by a trier of fact, the Independent Auditor will not modify its current approach to the calculation.

Following further objections by the participating manufacturers, the independent auditor again refused to offset their payment, stating in its March 29, 2006, notice of final calculation that “[u]ntil such time as the parties resolve this issue or the issue is resolved by a trier of fact, the Independent Auditor will not modify its current approach to the application of the [non-participating manufacturer] Settlement Adjustment.”

[¶ 10] After the participating manufacturers disputed the independent auditor’s failure to apply the non-participating manufacturer adjustment, North Dakota and other settling states began actions in their respective master settlement agreement courts seeking declaratory judgments to prevent reduction of their payments by the 2003 non-participating manufacturer adjustment. In the present action for declaratory relief, the State requested that the district court enforce the settlement agreement, declare that North Dakota has “diligently enforced” its qualifying statute, and declare that North Dakota’s payments under the settlement agreement not be reduced by the non-participating manufacturer adjustment. In response, the original participating manufacturers moved to compel arbitration of this dispute under the terms of the master settlement agreement’s arbitration provision, and the subsequent participating manufacturers joined in the motion.

[¶ 11] The district court denied the motion to compel arbitration, concluding “the issue of whether the State of North Dakota diligently enforced its Qualifying Statute was not a ‘dispute, controversy or claim arising out of [or] relating to calculations performed by, or any determination made by, the Independent Auditor’ ” under the arbitration provision of the settlement agreement. Both the original participating manufacturers and the subsequent participating manufacturers appealed from the district court’s order denying their motion to compel arbitration.

[¶ 12] The district court had jurisdiction under N.D. Const, art. VI, § 8; N.D.C.C. §§ 27-05-06 and 32-29.3-26; and under the master settlement agreement and resulting consent decree. The separate appeals by the original participating manufacturers and the subsequent participating manufacturers were timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 32-29.3-28(l)(a).

II

[¶ 13] Although we have not previously stated a standard of review for an appeal from the denial of a motion to compel arbitration, most courts apply the de novo standard, see, e.g., Brown v. Denson, 895 So.2d 882, 885 (Ala.2004); The Hillier Group, Inc. v. Torcon, Inc., 932 So.2d 449, 452 (Fla.Dist.Ct.App.2006); State ex rel. Wagner v. Kay, 15 Neb.App. 85, 722 N.W.2d 348, 353 (2006), unless the lower court’s decision was based on factual findings, in which case the clearly erroneous standard applies. See Nitro Distrib., Inc. v. Alticor, Inc., 453 F.3d 995, 998 (8th Cir.2006); Robertson v. Health Net of California, Inc., 132 Cal.App.4th 1419, 34 Cal.Rptr.3d 547, 551 (2005). In this case, the district court’s decision does not rest upon any factual findings, but is based on the court’s interpretation of the master settlement agreement. The master settlement agreement is a contract, and the construction of a written contract to determine its legal effect is a question of law, fully reviewable on appeal. See Peoples State Bank of Truman, Inc. v. Molstad Excavating, Inc., 2006 ND 183, 1119, 721 N.W.2d 43. Consequently, we apply the de novo standard in this case.

[¶ 14] In Grynberg v. Dome Petroleum Corp., 1999 ND 167, ¶ 10, 599 N.W.2d 261, we summarized some of the rules for construing contracts:

Contracts are construed to give effect to the mutual intention of the parties at the time of contracting. N.D.C.C. § 9-07-03; Lire, [Inc. v. Bob’s Pizza Inn Restaurants, Inc., 541 N.W.2d 432, 433-34 (N.D.1995)]. The parties’ intention must be ascertained from the writing alone, if possible. N.D.C.C. § 9-07-04; Lire, at 434. A contract must be construed as a whole to give effect to each provision if reasonably practicable. N.D.C.C. § 9-07-06; Lire, at 434_Words in a contract are construed in their ordinary and popular sense, unless used by the parties in a technical sense or given a special meaning by the parties. N.D.C.C. § 9-07-09. If the parties’ intention in a written contract can be ascertained from the writing alone, the interpretation of the contract is a question of law for the court to decide. Ohio Farmers Ins. Co. v. Dakota Agency, Inc., 551 N.W.2d 564, 565 (N.D.1996).

We also recognize that there is a strong state and federal public policy favoring the arbitration process, and where there is a broad arbitration clause and no exclusion clause, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. See Gratech Co., Ltd. v. Wold Eng’g, P.C., 2003 ND 200, ¶ 14, 672 N.W.2d 672; State v. Stremick Constr. Co., 370 N.W.2d 730, 732 (N.D.1985).

Ill

[¶ 15] The issue in this case is whether the parties’ dispute involving application of the diligent enforcement exemption to the non-participating manufacturer adjustment is subject to arbitration under the terms of the master settlement agreement.

[¶ 16] Under subsection VII(a) of the agreement, North Dakota’s master settlement agreement court is given “exclusive jurisdiction for the purposes of implementing and enforcing this Agreement ... and ... except as provided in subsections IX(d) [and] XI(c) ..., shall be the only court to which disputes under this Agreement ... are presented as to such Settling State.” Subsection IX(d) sets forth the method for calculating the non-participating manufacturer adjustment, and subsection IX(d)(2)(B) specifically sets forth an exemption to the adjustment “if such Settling State continuously had a Qualifying Statute ... in full force and effect during the entire calendar year immediately preceding the year in which the payment in question is due, and diligently enforced the provisions of such statute during such entire calendar year.” (Emphasis added.) Subsection XI(e), in broad language, requires arbitration of “[a]ny dispute, controversy or claim arising out of or relating to calculations performed by, or any determinations made by, the Independent Auditor (including, without limitation, any dispute concerning the operation or application of any of the adjustments, reductions, offsets, carry-forwards and allocations described in subsection IX(j) or subsection XI(i).)” Subsection IX(j) addresses the “Order of Application of Allocations, Offsets, Reductions and Adjustments,” and states the non-participating manufacturer adjustment “shall be applied to the results of clause ‘Fifth’ pursuant to subsections IX(d)(l) and (d)(2) [or] ... IX(d)(I).” (Emphasis added.) Subsection XI(i) of the agreement is entitled “Miscalculated or Disputed Payments” and again refers to the independent auditor’s “adjustments or offsets.” Construing these provisions together, we believe the plain and unambiguous language of the settlement agreement requires arbitration of the parties’ dispute.

[¶ 17] Our conclusion comports with the decisions of every other state court that has decided the issue to date. The subsequent participating manufacturers have informed this Court that 35 of the 36 cases addressing the issue have ordered arbitration. While many of the cases are unreported lower court decisions, at least five reported appellate court decisions declare the issue arbitrable under the terms of the master settlement agreement. See State v. The Honorable Timothy J. Ryan, No. 1 CA-SA 07-0083, 2007 WL - (Ariz.Ct.App., Div.One, Dept.E, May 24, 2007); State v. Philip Morris, Inc., 279 Conn. 785, 905 A.2d 42 (2006); People v. Lorillard Tobacco Co., 372 Ill.App.3d 190, 310 Ill.Dec. 222, 865 N.E.2d 546 (2007); Commonwealth v. Philip Morris Inc., 448 Mass. 836, 864 N.E.2d 505 (Mass.2007); State v. Philip Morris, Inc., 30 A.D.3d 26, 813 N.Y.S.2d 71 (N.Y.App.Div.), leave to appeal granted, 7 N.Y.3d 716, 826 N.Y.S.2d 181, 859 N.E.2d 921 (N.Y.2006); see also State v. Philip Morris USA, Inc., No. 657, 2006, 2007 WL 1138472 (Del. April 17, 2007) (unreported decision affirming lower court judgment compelling arbitration). The district court in this case, however, found this line of cases “[un]persuasive.” The court ruled, “the issue of whether the State of North Dakota diligently enforced its Qualifying Statute was not a ‘dispute, controversy or claim arising out of [or] relating to calculations performed by, or any determinations made by, the Independent Auditor,’ ” mainly because “the Independent Auditor did not settle and end the controversy whether or not the State of North Dakota diligently enforced its Qualifying Statute nor did the Independent Auditor resolve that question by argument or reasoning,” but merely made “a presumption or an assumption on that issue.” The court also relied on the doctrine of ejusdem generis and a California decision, In re Tobacco Cases I, 124 Cal.App.4th 1095, 21 Cal.Rptr.3d 875 (2004), to support its conclusion. None of these reasons support the court’s holding that the parties’ dispute is not subject to the arbitration provision of the settlement agreement.

[¶ 18] First, we agree with the rationale of the Supreme Judicial Court of Massachusetts in rejecting the claim that the arbitration provision does not apply because the independent auditor did not actually settle the diligent enforcement controversy:

We find unconvincing the contention that, because the auditor demurred on the question of diligent enforcement, there were for present purposes no “calculations” or “determinations” to submit to an arbitrator. The Commonwealth argues that this fact excludes the diligent enforcement dispute from the settlement agreement arbitration clause, which by its terms only applies to “calculations performed by, or any determinations made by” the independent auditor. Focusing on this language in the arbitration clause ignores, or at least reduces the force of, the preceding phrase, which brings under the clause “[ajny dispute, controversy or claim arising out of or relating to ” the auditor’s calculations or determinations (emphasis added). Settlement agreement, § XI(c). This language must be read broadly. See Carpenter v. Pomerantz, 36 Mass.App.Ct. 627, 630, 634 N.E.2d 587 (1994) (phrase “as broad as [‘arising out of or relating to’]” creates “strong presumption of arbitrability”).
Further undermining the Commonwealth’s position, there is nothing in the arbitration clause limiting arbitration to those questions actually determined. Rather, it specifically includes “any dispute concerning the operation or application of any of the adjustments ... described in subsection IX(j),” which discusses the [non-participating manufacturer] adjustment. This language includes disputes over issues not actually determined, just as well as those over issues which are actually determined. Furthermore, because the economic consultants had determined that the settlement agreement was a significant factor in the loss of market share by the participating manufacturers in 2003, the only means by which the auditor could have denied the [non-participating manufacturer] adjustment for that year was by affirmatively finding that there was diligent enforcement by the States. It is therefore logically necessary that the auditor did make a diligent enforcement determination. Whether the auditor made this determination explicitly, or impliedly, or by employing a presumption makes no difference.

Commonwealth v. Philip Morris Inc., 864 N.E.2d at 513; see also People v. Lorillard Tobacco Co., 310 Ill.Dec. 222, 865 N.E.2d at 553.

[¶ 19] Second, the district court’s reliance on the doctrine of ejusdem generis is misplaced. Under the rule of ejusdem generis, when general words follow specific words in a statutory or contractual enumeration, the general words are construed to embrace only objects similar in nature to those objects specifically enumerated. Larsen v. Zarrett, 498 N.W.2d 191, 194 (N.D.1993); Resolution Trust Corp. v. Dickinson Econo-Storage, 474 N.W.2d 50, 52 (N.D.1991). Applying this principle, the district court concluded that the phrase in subsection IX(e), “ ‘(including, without limitation, any dispute concerning the operation or application of any of the adjustments, reductions, offsets, carry forwards and allocations described in subsection IX(j) or subsection XI(i)),’ ” must be “confined to the specific language in the arbitration clause, which states ‘relating to calculations performed by, or determinations made by, the Independent Auditor.’ ” The district court’s conclusion rests on the faulty premise that the independent auditor made no “calculation” or “determination” on the diligent enforcement issue, and is inconsistent with the requirement that the rule of ejusdem gen-eris must be used to carry out the intention of the legislature or contracting parties, not to defeat or subvert that intent. See Aanenson v. Bastien, 438 N.W.2d 151, 156 (N.D.1989). The doctrine of ejusdem generis has no application when the statute or document manifests a contrary intention. In re Estate of Nelson, 419 N.W.2d 915, 917 n. 6 (N.D.1988). Use of the words, “including, without limitation,” reflects a contrary intention that an enumeration is not exhaustive, rendering the doctrine of ejusdem generis inapplicable. See, e.g., Cintech Indus. Coatings, Inc. v. Bennett Indus., Inc., 85 F.3d 1198, 1202 (6th Cir.1996); Cooper Distrib. Co. v. Amana Refrigeration, Inc., 63 F.3d 262, 280 (3rd Cir.1995); In re Forfeiture of $5,264, 432 Mich. 242, 439 N.W.2d 246, 251 n. 7 (1989). The rule of ejusdem generis does not support the district court’s decision.

[¶20] Third, the district court’s reliance on the California Court of Appeal’s decision in In re Tobacco Cases I, 124 Cal.App.4th 1095, 21 Cal.Rptr.3d 875, is misplaced. In In re Tobacco Cases I, 21 Cal.Rptr.3d at 876-78, a subsequent participating manufacturer sought to compel arbitration of the question whether United States sales of cigarettes by the subsequent participating manufacturer’s foreign-affiliated company were required to be reported to the independent auditor as cigarette sales subject to the master settlement agreement. The court held this question was not subject to arbitration under the terms of the settlement agreement because the independent auditor had not made any “calculation” or “determination” regarding the cigarettes at issue. Id. at 885. The court noted that “any challenge of those future calculations or determinations, when made by Auditor, presumably will then be subject to section XI(c)’s arbitration requirement.” Id. at 885 n. 7.

[¶ 21] Here, the independent auditor has made a “calculation” or “determination” of the diligent enforcement issue by its denial of the non-participating manufacturer adjustment. Moreover, California’s master settlement agreement court, in ordering arbitration of the present dispute, specifically found the independent auditor had made a “determination ... as to the diligent enforcement” issue, and distinguished In re Tobacco Cases I because the appellate court in that case “did not address the interpretation of XI(c) in its relation to IX(j) or IX(d) and the Qualifying Statute or the [non-participating manufacturer] adjustment. Nor did the court interpret section IX(j) in its relation to section IX(d).” In re Tobacco Cases II, No. JCCP 4041, slip op. at pp. 4-5 (Superior Court of California, County of San Diego, August 23, 2006). In re Tobacco Cases I does not support the district court’s decision.

[¶ 22] The State acknowledges the wealth of authority rejecting its position, but contends those courts “identified the wrong dispute and applied the wrong test for arbitrability” under the master settlement agreement. The State contends the test is not whether a dispute is related to the non-participating manufacturer adjustment, but whether the dispute arises out of or relates to a calculation or determination made by the independent auditor. According to the State, this “error[] ... led to the rash of State opinions” compelling arbitration. However, the State concedes that the diligent enforcement dispute “certainly” relates to or arises out of the nonparticipating manufacturer adjustment, and the courts cited above did address whether the dispute arises out of or relates to a calculation or determination made by the independent auditor. As the Connecticut Supreme Court reasoned in State v. Philip Morris, Inc., 905 A.2d at 49:

As we have discussed previously herein, § IX(j) describes the steps that the independent auditor must take in calculating the participating manufacturers’ annual payments and the sixth step in that process is the application of the nonparticipating manufacturer adjustment. Thus, the independent auditor, in calculating the annual payments, had to determine whether to apply that adjustment. Accordingly, we conclude that the underlying dispute over the independent auditor’s decision not to apply the adjustment falls within the scope of the arbitration provision because it directly involves determination of the independent auditor. Moreover, this dispute also arises out of or relates to the independent auditor’s calculation of the annual payments because its determination not to apply the nonparticipating manufacturer adjustment resulted in it calculating higher annual payments than if it had determined that the adjustment should apply.

See also People v. Lorillard Tobacco Co., 310 Ill.Dec. 222, 865 N.E.2d at 553-54; Commonwealth v. Philip Morris Inc., 864 N.E.2d at 513; State v. Philip Morris Inc., 813 N.Y.S.2d at 75-76. These courts did not identify the “wrong dispute” or apply the “wrong test” for arbitrability. Arbitration is the result under either formulation of the issue.

[¶ 23] The State argues the participating manufacturers’ interpretation of the master settlement agreement is “absurd[]” because it would result in “unworkable” year-long diligent enforcement “mega-proceedings” before the independent auditor and the arbitration panel involving all of the settling states. We doubt that litigating diligent enforcement issues in the trial and appellate courts of 52 jurisdictions would be any more timely and efficient than litigating the issue before an arbitration panel. See State v. Philip Morris USA, Inc., No. 657, 2006, 2007 WL 1138472, at *1. We agree with the observations of the court in State v. Philip Morris, Inc., 813 N.Y.S.2d at 76:

We note, as did the Connecticut Superior Court when it addressed this identical issue on a motion to compel arbitration in that state, that there is a compelling logic to having these disputes handled by a single arbitration panel of three federal judges, rather than numerous state and territorial courts. It saves all parties to the agreement from having to relitigate the Independent Auditor’s determinations “on multiple occasions, with potentially conflicting decisions by multiple tribunals” (“State of Connecticut v. Philip Morris, Inc., 2005 WL 2081763, *39, 2005 Conn. Super LEXIS 2067, *115).” The chaos that can result from numerous tribunals addressing identical issues with varying results is underscored by the fact that the Connecticut court reached the opposite conclusion from that of the IAS court here. Since the granting of an exemption by one settling state will automatically lead to the reallocation of its allocated portion of the [Non-Participating Manufacturer] adjustment to all other non-exempt settling states, each governmental signatory has its own self-interest at stake in the outcome of this issue, which is necessarily in conflict with every other state. Such a result defeats the whole purpose of having a Master Settlement Agreement. The mechanism of submitting disputes involving the decisions of the Independent Auditor to a neutral panel of competent arbitrators, who are guided by one clearly articulated set of rules that apply universally in a process where all parties can fully and effectively participate, obviates this problem and ensures fairness for all parties to the [Master Settlement Agreement], To hold otherwise is contrary to both the spirit and the plain language of the Master Settlement Agreement.

[¶24] We have considered the other arguments raised by the State. They are unpersuasive and do not alter the result in this case. We conclude the plain and unambiguous language of the settlement agreement requires arbitration of the parties’ dispute over application of the diligent enforcement exemption to the non-participating manufacturer adjustment, and the district court erred as a matter of law in denying the motion to compel arbitration.

IV

[¶ 25] We reverse the district court’s order and remand for entry of an order compelling arbitration.

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