author: ZINTER, Justice. KONENKAMP, Justice, SABERS, Justice,

text:
    2003 SD 93
    STATE of South Dakota, Plaintiff and Appellee, v. Pedro Garcia CHAVEZ a/k/a Alfredo Garcia Chavez, Defendant and Appellant.
    No. 22438.
    Supreme Court of South Dakota.
    Argued March 25, 2003.
    Decided July 30, 2003.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Jeffery D. Collins, Barker, Wilson, Reynolds & Burke, Rapid City, South Dakota, and Kenneth R. Dewell, Viken, Viken, Pechota, Leach & Dewell, Rapid City, South Dakota, Attorneys for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Alfredo Garcia Chavez was stopped by a South Dakota highway patrolman for a traffic violation. While stopped, the patrolman engaged Chavez in questioning and had his drug dog sniff the exterior of Chavez’s vehicle. The dog allegedly alerted to the odor of illegal drugs. A search of the car revealed large quantities of marijuana, methamphetamine, and cocaine. Although drug charges were subsequently filed in federal district court, that court suppressed the evidence. After the federal charges were dismissed, the Lawrence County State’s Attorney initiated state drug charges. The state circuit court subsequently conducted a suppression hearing in which the State introduced evidence that was not presented to the federal court. The state circuit court declined to suppress the evidence. Chavez was ultimately found guilty of two counts of possession of a controlled substance with intent to distribute and one count of possession of marijuana. Chavez appeals. We affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶ 2.] On September 30, 2000, Chavez’s automobile was stopped by South Dakota Highway Patrolman Brian Swets. Although Chavez disputes the matter, Swets testified that he initiated the traffic stop because an object was hanging from the interior rear view mirror, which interfered with vision in violation of SDCL 32-15-6.

[¶ 3.] There were three others in the vehicle: an adult male was in the front passenger seat, and an adult female and child were in the back seat. Swets testified that Chavez and the front seat passenger were extremely nervous. Swets indicated that Chavez’s hand was “significantly, noticeably” trembling when he handed his driver’s license to Swets. While conceding that most people who get pulled over react nervously to some extent, Swets stated that Chavez’s nervousness “was out of the ordinary ... greater than I would expect to see.”

[¶ 4.] In the course of checking Chavez’s driver’s license, Swets asked Chavez and the front seat passenger various general questions. In response, Chavez told Swets that Chavez was coming from Seattle, Washington and was traveling to North Carolina. Chavez also identified the male passenger as Aurelio Meja-Cas-tillo. Swets testified that Meja-Castillo “had a jacket in his hands and was rolling it in his hands.” Swets indicated that Meja-Castillo’s nervousness was also “unusual both in length and degree.” Swets indicated that “most people after the original stop, have relaxed, settled down some. Especially passengers, as they aren’t usually the focus.” Meja-Castillo, however, was “still nervous, agitated, rolling the jacket, very fidgety.” Moreover, when asked, Meja-Castillo told Swets that he did not have a “green card.” Based on this admission, Swets then asked Chavez if he had a “green card,” and Chavez replied “no.”- Swets asked Chavez “[i]f I call INS to check, are you going to be here legally,” and Chavez answered “no.”

[¶ 5.] Before this license, registration and INS check were completed, Swets informed Chavez that Swets had a drug dog. Swets then stated, “so if I take my drug dog around the car, is he going to tell me there’s drugs in the car.” Chavez shrugged his shoulders and said “probably, if he’s trained, probably but I don’t think so.” Swets then proceeded to have his dog (Crockett) sniff the exterior of the vehicle.

[¶ 6.] The officers on the scene contend, and the state court found, that Crockett “alerted” to the odor of an illegal drug coming from the vehicle. Swets testified that an alert occurred because he observed Crockett’s sniff intensify, increase, and his body posture tightened. Swets stated that the dog “locked up on the trunk. He did not go any further.” After the sniff, Swets told Trooper Michael Thomas that “Crockett showed some interest.” Trooper Thomas testified that he paid particular attention to Crockett’s sniff of the vehicle because of Chavez’s statement that the dog would probably alert to drugs in the vehicle. Thomas testified that the dog “sniffed a little bit more, stiffened up, and then [Swets] gave him a toy.”

[¶ 7.] After the dog sniff, the officers followed up on the occupants’ immigration status. Meja-Castillo indicated that he did not have INS documentation or an immigrant card. Swets asked how he was able to get a drivers license without these documents. Meja-Castillo did not answer, but he did consent to the trooper looking though his wallet. While looking through the wallet, Swets discovered what appeared to be a counterfeit social security card. Furthermore, while still at the scene of the traffic stop, the border patrol put a hold on both Chavez and Meja-Castillo.

[¶ 8.] With the further assistance of Crockett, the officers subsequently searched the vehicle. During the search, they removed a back portion of the back seat and some carpet padding that disclosed an access panel. Once that panel was removed, the officers uncovered a hidden compartment containing several cellophane wrapped packages. Field tests yielded positive results for cocaine and methamphetamine. The vehicle was then towed to the Spearfish Police Department while officers obtained a search warrant. The ultimate search produced packages that contained 450.1 grams of methamphetamine, over four pounds of marijuana, and 18.6 pounds of “almost pure” cocaine.

[¶ 9.] Chavez’s first criminal charges were initiated by indictment in United States federal district court. He was charged with: 1) knowingly and intentionally possessing with intent to distribute five kilograms or more of cocaine, and 2) knowingly and intentionally possessing with intent to distribute fifty grams or more of methamphetamine. Following a suppression hearing, a United States magistrate concluded that Chavez was unconstitutionally questioned about his alienage, and therefore, Chavez’s answers should be suppressed along with all derivative evidence subsequently obtained. A United States district judge considered that decision and remanded the case to the magistrate for further findings on whether the dog actually alerted to the odor of illegal drugs during the initial sniff of the vehicle. On remand, the United States magistrate found that the dog did not alert to the odor of illegal drugs during the initial sniff of the vehicle. The United States district judge adopted the magistrate’s findings and recommendations, and suppressed all evidence from the vehicle. The United States government did not appeal that decision.

[¶ 10.] Upon dismissal of the federal criminal action, Chavez was indicted in state court on five drug counts. Chavez moved to suppress the evidence and to dismiss the case because of the evidence suppression and prior prosecution in federal court. Those motions were denied by Circuit Court Judge Timothy Johns. After a trial to the court, Judge Johns found Chavez guilty of possession of a controlled substance with intent to distribute and possession of marijuana.

[¶ 11.] Chavez appeals, raising these issues:

1. Whether the trial court erred in denying Chavez’s motion to suppress, and specifically:
A. Whether there was a reasonable suspicion sufficient to stop Chavez’s vehicle.
B. Whether Chavez’s constitutional rights were violated by the questioning about his alienage when the stop was for a traffic offense.
C. Whether Chavez’s Miranda rights were violated in the questioning about Chavez’s alien-age.
D. Whether the drug dog alerted to the odor of illegal drugs during the sniff of Chavez’s vehicle.
2. Whether the trial court erred in denying Chavez’s motion to dismiss on grounds of collateral es-toppel, res judicata, and double jeopardy.

[¶ 12.] At the outset, we note that Chavez does not argue that the timing or the performance of the dog sniff during the traffic stop was unconstitutional. Therefore, if the dog sniff provided probable cause for the auto search, we need not consider Issues IB and 1C. We need not consider those issues because the challenged questioning in Issues IB and 1C would not be necessary to prolong the stop or provide independent probable cause for the search. Because we ultimately conclude that the drug dog alerted and provided probable cause, we do not reach Issues IB or 1C. We affirm on Issues 1A (reasonable suspicion to stop), ID (drug dog alert), and Issue 2 (double jeopardy/collateral estoppel/res judicata).

STANDARD OF REVIEW

[¶ 13.] We recently reiterated the standard of review of a trial court’s decision on a motion to suppress.

A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo. We review findings of fact under the clearly erroneous standard. Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo.

State v. Hodges, 2001 SD 93, ¶ 8, 631 N.W.2d 206, 209 (internal citations omitted).

DECISION

[¶ 14.] 1A. Swets had a reasonable suspicion sufficient to stop Chavez’s vehicle.

[¶ 15.] The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. Although this protection generally requires probable cause to search, “[t]he requisite level of suspicion necessary to effectuate the stop of a vehicle is not equivalent to probable cause necessary for an arrest or a search warrant.” State v. Barton, 2001 SD 52, ¶ 13, 625 N.W.2d 275, 279. All that is required is that the police officer has “a reasonable suspicion to stop an automobile.” Id. Therefore, the factual basis needed to support a traffic stop is minimal. Id. State v. Sleep, 1999 SD 19, ¶ 7, 590 N.W.2d 235, 238.

[¶ 16.] While the stop may not be the product of mere whim, caprice or idle curiosity, it is enough that the stop is based upon “specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” State v. Herrboldt, 1999 SD 55, ¶ 7, 593 N.W.2d 805, 808 (quoting Spenner v. Pity of Sioux Falls, 1998 SD 56, ¶ 14, 580 N.W.2d 606, 611). Under these standards, it is well established that a traffic violation, however minor, creates sufficient cause to stop the driver of a vehicle. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89, 95-96 (1996); State v. Kenyon, 2002 SD 111, ¶ 16, 651 N.W.2d 269, 274.

[¶ 17.] The trial court found that “based upon [Swets’] observation of the violation of SDCL 32-15-6 (object dangling from the rear view mirror), [he] initiated a traffic stop.” Chavez has not established that this finding was clearly erroneous. We agree that the trooper had a specific and articulable suspicion of a traffic violation sufficient to justify the initial stop of Chavez’s vehicle.

[¶ 18.] Chavez, however, argues the stop was pre-textual. He relies on a statement Swets made prior to the stop that “what the hell, I’m going to stop them anyway.” Chavez argues that this statement established “that Swets’ only purpose was to go on a fishing expedition of a non-Caucasian in an attempt to elicit incriminating evidence of a larger crime.” Chavez argues that “nothing is more telling nor true, in this case than Swets’ declaration prior to the stop.”

[¶ 19.] Chavez’s argument is taken out of content. It also ignores other evidence explaining why Swets made the statement. The record reflects that Swets originally followed Chavez’s vehicle because it did not have a front license plate. When Swets saw the rear license plate, he realized that the car was from North Carolina, and he determined that North Carolina did not require a front license plate. However, Swets also noticed the “dangling object.” Therefore, he decided (and made the statement) to stop the vehicle “anyway.” Consequently, Swets articulated specific non-pretextual facts which, taken together with’ rational inferences from those facts, reasonably warranted the traffic stop. Kenyon, 2002 SD 111, ¶ 15, 651 N.W.2d at 273-274; Barton, 2001 SD 52, ¶ 16, 625 N.W.2d at 279. This type of traffic stop, based on a “dangling object,” has been upheld on a number of occasions. State v. Ashbrook, 1998 SD 115, ¶ 13, 586 N.W.2d 503, 508; State v. Ramirez, 535 N.W.2d 847, 849 (S.D.1995); State v. Krebs, 504 N.W.2d 580, 585 (S.D.1993).

[¶ 20.] We finally note that because Swets was legally authorized to stop the vehicle, any additional “underlying intent or motivation” would not have invalidated the stop. United States v. Bloomfield, 40 F.3d 910, 915 (8thCir.1994) cert. denied, 514 U.S. 1113, 115 S.Ct. 1970, 131 L.Ed.2d 859 (1995); United States v. Cummins, 920 F.2d 498, 501 (8thCir.1990). Even if Swets had other motivations to stop Chavez, those subjective reasons were not relevant. They were not relevant because this stop was objectively reasonable, and an objectively reasonable stop is not invalidated even if the stop was pretextual. State v. Lamont, 2001 SD 92, ¶ 21, 631 N.W.2d 603, 610 (citing Arkansas v. Sullivan, 532 U.S. 769, 772, 121 S.Ct. 1876, 1878,149 L.Ed.2d 994, 998 (2001)).

[¶ 21.] ID. The drug dog alerted, which provided independent probable cause to search Chavez’s vehicle.

[¶ 22.] Although the videotape does not display Chavez’s vehicle, he argues, as the federal district court concluded, that “the videotape as a whole makes it clear that Crockett did not alert during the first sniff of the vehicle and therefore any reliance on the dog to justify the search of Chavez’s vehicle is without merit.” (emphasis added). On the other hand, the state circuit court found that “the dog alerted to the vehicle thereby indicating the presence of illegal drugs.” We first examine whether this state court finding of fact is clearly erroneous.

[¶23.] The circuit court heard considerable evidence supporting its finding. Moreover, a significant amount of that evidence was not available in the federal court hearings. The evidence heard by the circuit court included Swets’ sworn testimony that the dog alerted. Swets testified that he “saw and heard [Crockett’s] sniff intensify, increase, and his body posture tightened. He locked up on the trunk. He did not go any further.” Although the videotape does not provide video confirmation of this testimony, the alert was corroborated by three other witnesses who did not testify in the federal court proceedings.

[¶ 24.] The first additional witness was Kyle Heyen, the dog’s trainer. Heyen, a highly experienced dog trainer, described the behavior Crockett exhibited when he alerted to the odor of illegal drugs. He stated: “[h]is tab intensifies in its wagging and he gets an increase — -very intense sucking in through his nose that-^is very audible[.]” Although our untrained review of the audio portion of the videotape does not disclose an obvious “sucking sound,” there is some audio evidence of dog sniffing. Moreover, Heyen testified that he had listened to the videotape of the stop at least a dozen times. He opined that the dog had alerted because he “heard the dog’s increased breathing, which had not been present during whatever else he was doing around the vehicle .... his nose started inhaling, sucking in, and being a Hoover vacuum.”

[¶ 25.] Trooper Thomas further corroborated an alert. He testified that he observed Crockett alert on “dozens” of occasions. He further testified that he observed Crockett during this sniff and observed that the dog “sniffed a little bit more, stiffened up, and then [Swets] gave him a toy.” The videotape confirms that Crockett returned from' Chavez’s vehicle with the toy in his mouth. According to Swets, “that’s his praise or reward at the end of the search.” Swets testified that he would not give Crockett the toy if the dog did not alert to the odor of illegal drugs in a real life search situation.

[¶ 26.] Finally, confirmation of an alert came from Deputy Sheriff Mike Schafer and the fact that, shortly after the sniff, Swets stated to Meja-Castillo “[is] there any reason why my drug dog would alert to your vehicle today?” All of the foregoing evidence supports the trial court’s finding that an alert occurred.

[¶ 27.] Chavez, however, argues that Swets’ subsequent conversation with Deputy Schafer indicated that Crockett did not alert to the odor of an illegal substance. Chavez contends the conversation suggests that the officers searched the car based solely on the suspected false documents in Meja-Castillo’s possession. In that conversation the officers stated:

Swets: He’s got falsified documents.
Schafer: Yeah.
Swets: That’s a crime. We got probable cause for a search.
Schafer: Yeah.
Swets: I mean I think that, that’s what I’m gonna go ahead with.

However, these statements when viewed in context are equivocal. The statement “I think that, that’s what I’m gonna go ahead with,” actually raises two possible inter-enees. First, it could support the State’s position that Swets had probable cause to arrest Meja-Castillo for false identification, also had probable cause (from the dog sniff) for a search, and was proceeding to search on the dog sniff. Or, it could imply that the probable cause to search only developed from the discovery of the falsified document.

[¶ 28.] While we only have a cold transcript and inconclusive videotape to resolve this dispute, the trial court heard live witness testimony including extensive cross-examination on this very issue. The trial court heard direct evidence of the officers’ observations of an alert, defense counsel’s cross-examination of Swets about the equivocal statement, and Swets’ denial that the false document was the only source of probable cause for the search:

Attorney: You agree that before the search started that in your discussion with Shafer and/or Thomas that you never articulated to them that your dog had alerted as a probable cause for that search.
Swets: I never directly stated that, sir.
Attorney: In fact, it was a falsified social security card which was the only basis articulated in that discussion; correct?
Swets: No, sir.
(After Swets denied that the suspected false document was the only justification for the search, defense counsel began asking questions on an unrelated topic.)

, [¶ 29.] The trial court reviewed the tape, watched Swets testify, and listened to defense counsel’s cross-examination and suppression arguments. The trial court ultimately judged four witnesses’ credibility after listening to their live testimony. The trial court believed Swets, Thomas, Schafer and Heyen, and we do not. conclude that its findings were clearly erroneous by second-guessing the trial court’s credibility determinations. We therefore conclude that there was sufficient evidence in the record to support a finding that the drug dog alerted to the odor of an illegal substance. • ■

[¶ 30.] Based on the trial court’s finding of a drug alert, Swets had probable cause to search the vehicle. In State v. De La Rosa, 2003 SD 18, 657 N.W.2d 683, we upheld a vehicle search based on a drug dog alert even though the officer had no other reason to believe that drugs were present. Other courts agree. See U.S. v. Sundby, 186 F.3d 873, 875-876 (8thCir.1999) (A dog’s positive indication alone is enough to establish probable cause for the presence of a controlled substance if the dog is rehable) (citing United States v. Owens, 167 F.3d 739, 749 (1stCir.1999); See also United States v. Kennedy, 131 F.3d 1371, 1376-77 (10thCir.1997), cert. denied, 525 U.S. 863, 119 S.Ct. 151, 142 L.Ed.2d 123 (1998); United States v. Berry, 90 F.3d 148, 153 (6thCir.1996); United States v. Carrazco,. 91 F.3d 65, 67 (8thCir.1996); United States v. Delaney, 52 F.3d 182, 188 (8thCir.1995); United States v. Lingenfelter, 997 F.2d 632, 639 (9thCir.1993)).

[¶ 31.] Because Swets initiated a legal traffic stop, and because there is sufficient evidence in the record to support the trial court’s finding that Crockett alerted to illegal drugs in the vehicle, the officers had probable cause to search. Because the officers had probable cause to search independent of any alleged incriminating statements made by Chavez and Meja-Castillo, we uphold the search.

[¶ 32.] 2. The trial court did not err in denying Chavez’s motion to dismiss on the grounds of collateral estoppel, res judicata, and double jeopardy.

[¶33.] Chavez argues that the state charges should have been dismissed under double jeopardy, res judicata, or collateral estoppel analysis because of the federal prosecution and the federal court’s determination that the search violated the Fourth Amendment. However, we rejected this argument in State v. West, 260 N.W.2d 215 (S.D.1977).

[¶ 34.] With respect to double jeopardy, West held that when both state and federal courts have jurisdiction over a criminal act, the acquittal by one sovereign will not preclude a conviction by the other absent a statute to the contrary. Id. at 219. At the time West was decided, South Dakota had two statutes that prevented a prosecution in state court if the defendant had already been convicted or acquitted for the same criminal activity by another sovereign. However, immediately after the West decision, the South Dakota Legislature repealed those statutes. Therefore, under our analysis in West, there are “no statutes to the contrary,” and the principle of dual sovereignty permits these successive prosecutions.

[¶35.] Because double jeopardy does not bar successive prosecutions by dual sovereigns, we proceed to examine whether res judicata or collateral estoppel barred the state trial court from relitigat-ing the suppression issues. In that regard, “it is clearly established that collateral estoppel and res judicata,' although applicable to successive prosecutions for the same criminal act by the same sovereign (see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)), are not applicable to successive prosecutions by different sovereigns.” West, 260 N.W.2d at 219. The rule is that as long as the initial prosecution is by a different sovereign, there' is no reason “why the dual sovereignty doctrine should not leave states free to pursue prosecutions of their own criminal law unencumbered by either thé ‘same offense’ or ‘collateral estoppel’ branches of federal double jeopardy jurisprudence.” State v. Shafranek, 576 N.W.2d 115, 117 (1998). Other federal and state courts agree with this conclusion. Id.

[¶ 36.] A good example is People v. Meredith, 11 Cal.App.4th 1548, 15 Cal.Rptr.2d 285 (1992). There, a state trial court found that the initial stop of Meredith was reasonable and that he consented to a search of his luggage. Those findings were dramatically at variance with a federal district court’s findings on the same factual issues. Id. at 289. Meredith argued that the federal court’s findings constituted a final determination on the merits of the reasonableness of the search, and the. state was barred by collateral estoppel from relitigating those issues. However, the California Court of Appeals held that the state was not collaterally estopped from relitigating the legality of a search.

[¶ 37.] The California court rejected the defendant’s argument because “[a]n essential element for collateral estoppel [or res judicata] to apply is the requirement that the party sought to be bound by a prior determination must have been a party to the prior proceeding or in privity with a party.” Id. at 291 (citing Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980)). Because “the People of the State of California were not a party to the federal proceeding and were not in privity with the United States, the party against whom the federal ruling was made,” the relitigation was permitted. Id.

[¶ 38.] Chavez, however, asserts an exception to this rule, which was recognized in Bartkus v. Illinois, 359 U.S. 121, 122-124, 79 S.Ct. 676, 678, 3 L.Ed.2d 684, 686-687 (1959). Chavez argues that under the exception, “if one sovereign’s prosecutors are merely a ‘tool of a separate sovereign’ or are a ‘sham and cover’ for another prosecution by the same sovereign, then the double jeopardy guarantee is implicated.” Chavez contends that in this case, “the United State’s Attorney worked closely with the state’s agents throughout the federal prosecution.” Chavez concludes that the state “was in privity with the federal government and must be bound by the federal court’s decision to suppress all evidence in this matter.”

[¶ 39.] Although some of the state law enforcement officers who made this stop testified in federal court, cooperation between state and federal law enforcement officers does not, by itself, affect the identity of the prosecuting sovereign. Johnson, 169 F.3d at 1096 (citing Bartkus, 359 U.S. at 123, 79 S.Ct. at 678, 3 L.Ed.2d at 687). See also Meredith, 15 Cal.Rptr.2d at 292 n.7 (citing United States v. Davis, 906 F.2d 829, 834 (2dCir.1990)). Stated another way, “[m]ere participation in a prosecution is not enough to establish privity.” Londono-Rivera v. Virginia, 155 FSupp2d 551, 566 (D.Va.2001) (use of the same detective as witnesses in each prosecution does not create privity, where the detectives did not have the authority to act in the state’s name or to decide how the prosecution would proceed); Davis, 906 F.2d at 834 (defendant must show substantial participation); Stephens v. Attorney General of California, 23 F.3d 248, 249 (9thCir.1994). So also, the fact that the state provided assistance to federal authorities in the gathering of evidence does not create an estoppel. Shajranek, 576 N.W.2d at 117. The critical factor is whether or not the state was acting independently. Johnson, 169 F.3d at 1096 (citing Bartkus, 359 U.S. at 124, 79 S.Ct. at 678, 3 L.Ed.2d at 686-687). The tool-ofthe-same-authorities exception “may only be established by proof that the State officials had little or no independent volition in their proceedings.” Londono-Rivera, 155 F.Supp.2d at 566 (quoting In re Kunstier, 914 F.2d 505, 517 (4thCir.1990)).

[¶ 40.] Therefore, Chavez’s point that “the officers involved in the initial arrest and questioning of Chavez were state officials,” is of little consequence. The record here reflects that the state officials instituted and controlled the state court prosecution, while federal officials instituted and controlled independent federal court proceedings. As the circuit court stated “there are no factors in this case which would lead me to believe, from what I’ve heard so far, that there was any privity between the State of South Dakota, the State’s Attorney’s office and the United States Government in the prosecution of this case.” The trial court also found that, “the State of South Dakota made its own independent decision to prosecute and had no control over the prosecution of the federal case.” The trial court finally found that “[the State’s Attorney] and his office obviously did not have any control over the prosecution of the federal case, nor did their office have any participation in the decision not to appeal the decision of the federal district court judge.” Chavez has not established that these findings are clearly erroneous.

[¶ 41.] Chavez finally argues that we should defer to the federal court’s suppression ruling based on the doctrine of comity. Comity is a well established principle in our case law. The party seeking relief under this doctrine must satisfy four conditions precedent:

1. The foreign court actually had jurisdiction over both the subject matter and the parties;
2. The decree was not obtained fraudulently;
3. The decree was rendered by a system of law reasonably assuring the requisites of an • impartial administration of justice — due notice and a hearing; and
4. The judgment did not contravene the public policy of the jurisdiction in which it is relied upon.

State v. Daly, 454 N.W.2d 842, 344 (S.D.1990).

[¶ 42.] Chavez is not entitled to comity under condition one because the State was not subject to the jurisdiction of the federal court in the prior proceeding. “It would of course be impossible for the federal prosecutor proceeding in a federal court to act as an agent for the State ... in the prosecution of crimes arising under the laws of this state. Neither the federal prosecutor nor the federal court would have authority to do that.” Shafranek, 576 N.W.2d at 117. Because the federal court did not have jurisdiction over the State of South Dakota in the prior proceeding, comity is inapplicable.

[¶ 43.] For all of the foregoing reasons, we affirm.

[¶ 44.] GILBERTSON, Chief Justice, concurs.

[¶ 45.] KONENKAMP, Justice, concurs in result.

[¶ 46.] SABERS and MEIERHENRY, Justices, dissent.

KONENKAMP, Justice,

concurring in result.

[¶ 47.] I agree with the conclusion of the Court, but arrive at it by different means. On some factual and legal points, I disagree with both the Court and the dissent on how this case should be resolved. Trooper Swets may not have acted or relied on his dog’s “alert,” but his subjective state of mind is not relevant to our inquiry. If the dog alerted and if Swets knew it alerted, he had probable cause to search, even if he expressed at the time some other legal justification to search. State v. DeLaRosa, 2003 SD 18, 657 N.W.2d 683 (drug dog alert is sufficient probable cause). On the other hand, if he did not know or believe that his dog alerted, then, regardless of whether the dog in fact alerted, Swets did not have probable cause.

[¶ 48.] Whether a Fourth Amendment violation occurred “turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting [the officer] at the time,” and not on the officer’s actual state of mind at the time the challenged action was taken. Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). We review two elements in probable cause determinations. First, we identify all relevant facts known to the officer at the time of the search; and second, we decide, under a standard of objective reasonableness, whether those facts would give rise to a reasonable suspicion justifying probable cause to search. Ornelas v. United States, 517 U.S. 690, 696-697, 116 S.Ct. 1657, 1661-62,134 L.Ed.2d 911 (1996). A search cannot be retrospectively transformed into an unlawful seizure by virtue of the officer’s subjective intent. Maryland v. Macon, 472 U.S. 463, 471, 105 S.Ct. 2778, 2783, 86 L.Ed.2d 370 (1985).

[¶ 49.] Before we begin to examine this case, we must establish the legal reference point from which we view the trial court’s decision. As explained in State v. Lamont, 2001 SD 92, ¶ 21, 631 N.W.2d 603, 610, it is essential in these cases to keep in mind that fact findings in suppression hearings are reviewed for clear error, but ultimately, in reviewing decisions on motions to suppress evidence taken in warrantless searches, our standard of review is de novo. See State v. Morato, 2000 SD 149, ¶ 10, 619 N.W.2d 655, 659 (citing Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663, 134 L.Ed.2d at 920). It is our duty to make our own legal assessment of the evidence to decide under the Fourth Amendment whether the officer’s actions were “objectively reasonable.” See Maryland v. Buie, 494 U.S. 325, 330, 110 S.Ct. 1093, 1096, 108 L.Ed.2d 276 (1990). Consequently, we are not constrained by the trial judge’s legal rationale for upholding the search. Equally important, we are not bound by a police officer’s subjective rationale. rkansas v. Sullivan, 532 U.S. 769, 771-72, 121 S.Ct. 1876, 1878, 149 L.Ed.2d 994 (2001); Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996).

1. Did Crockett alert?

[¶ 50.] This question is important, but not in the way that both the Court and the dissenters approach it. We need not decide whether the dog alerted based on how Trooper Swets reacted to the dog’s behavior. That is a backward analysis, made unnecessary by the expert testimony. We know the dog alerted because there is uncontradicted expert opinion that he did. The circuit court accepted that opinion. If we apply the clearly erroneous standard of review to that finding, as we must, then we are bound by it, for there is evidence in the record to support it.

[¶ 51.] I realize that the federal district court found to the contrary. But that court did not have the benefit of hearing the State’s expert. The federal court had to discern whether the dog alerted based on Trooper Swets’s response to the dog. With only that evidence, I concede the answer is equivocal. But the State’s expert on Crockett’s behavior settled the issue. Kyle Heyen is familiar with Crockett: he trained him and he re-certified him. Heyen described Crockett’s alert: “his tail intensifies in its wagging and he gets an increased — very intense sucking in through his nose that — it’s very audible, and you can hear it.” As the video tape was played for the circuit judge, Heyen pinpointed the exact time of Crockett’s alert as heard on the tape: “his nose started inhaling, sucking in, being a Hoover vacuum.” For the benefit of the circuit judge, Heyen himself indicated how this sounds. With Heyen’s assistance, the circuit court was evidently able to hear it because the court specifically found that the dog alerted.

[¶ 52.] Although my personal viewing of the videotape is not dispositive on this point, in listening to it myself, at the point where Heyen stated that the dog alerted, I can hear increased sniffing, and some additional sounds, not inconsistent with the way Heyen described them. In declaring Heyen “not credible,” the dissent wrests from the trial judge a question that every appellate court in this land has said is ultimately a factual determination to be made by trial judges.

2. Did Trooper Swets “know” Crockett alerted?

[¶ 53.] This is a more difficult question. The answer is crucial, however, because probable cause must be based on the facts “known” to the officer at the time of the search. Ornelas, 517 U.S. at 696-97, 116 S.Ct. at 1661-62. We have both direct and circumstantial evidence to examine on this question. First, Trooper Swets testified that, although he never told his fellow officers, he nonetheless believed that Crockett had alerted to the trunk area of defendant’s vehicle. He referred to the alert in his affidavit in support of a search warrant, signed the same day as the incident, and in his report of October -9, 2000. On the question whether Swets had knowledge that his dog alerted, the court simply found that the dog did alert and that thereafter Swets had probable cause to search.

[¶ 54.] The remainder of the evidence is circumstantial. And it is mixed, i.e., some of it supports his belief that the dog alerted, and some does not. Let us examine the supporting evidence. Swets gave Crockett a toy immediately after the alert on the trunk. The toy is Crockett’s reward as Heyen explained:

The toy is the reward for the dog, which is delivered or the dog retrieves upon conclusion of a search. The only purpose for that is to show the search is done. They’ve hunted; they’ve alerted; they’ve found. They’ve pinpointed; the exercise is done.

Does Crockett get a reward if he does not alert in a search? In the federal hearing, Swets confirmed that if he gives the dog the toy that means that he has seen an alert or an indication. The videotape shows the dog returning to the patrol car with a toy in his mouth. Immediately after putting the dog back in the patrol car, and making a radio call, Swets went over to defendant and asked him if he had any marijuana in the car -or had used marijuana. Swets had asked defendant shortly after the stop if he had any marijuana or cocaine in the car and now asking him again after the sniff search could suggest that Swets felt there was reason to re-inquire. Also corroborating Swets’s belief that the dog alerted is the fact that shortly afterwards he asked one of defendant’s passengers “if there is any reason why my drug dog would alert to your vehicle today.” Of course, that is essentially the same question he asked defendant before he took the dog to sniff around the car.

[¶ 55.] The evidence against Swets’s knowledge that the dog alerted is significant. The dissent outlines this evidence and most of it need not be recited again here. Most troubling is the conversation between Swets and Deputy Shafer. Swets took Shafer aside, presumably to be out of the hearing of the defendant and his passengers, and suggested that the false identification gave them probable cause to search. Swets said, “Something is up.” But he said not a word about Crockett alerting or even that he suspected that drugs were in the car. ■

[¶56.] These remarks are perplexing. But as for the comment Swets made to Shafer — “Crockett shows some interest, but” — I think there is an explanation. ' In listening to the tape,' this remark was made in connection with the fact that Swets noticed that the passenger had a large amount of cash in his pocket. It was then that Swets remarked about Crockett showing interest. Significantly, Swets’s report of October 9, 2000, written long before the issue of whether the dog alerted, states:

Deputy Shafer stated he felt the card was fraudulent. I informed Shafer the passenger had quite a bit of cash on [sic] his pocket and my dog showed some interest on the passengers [sic] side door seam.

This comment in the report is separate from the comment on the dog’s alert: “I took my dog around the vehicle. He alerted to the odor of an illegal drug coming from the vehicle at the trunk seam.”

[¶ 57.] The question is, from this contradictory evidence, was there sufficient evidence in the record to support the trial court’s implicit finding that Swets knew his dog alerted and therefore had probable cause to search the vehicle based on that alert? Aside from the conflicting evidence from Trooper Swets, we have what the trial court considered as corroborative testimony. Here is where I part company •with the Court and the trial judge most decidedly. The trial court placed reliance on the other two officers to corroborate Trooper Swets. A careful reading of the record fails to support the trial court’s findings. First, there is the testimony of Trooper Thomas. He testified that the “the dog sniffed a little bit more, stiffened up, and then the officer gave him a toy.” This corroborates Swets’s testimony to the extent that it confirms that the dog’s behavior changed at the trunk of the car. It does not establish that Swets knew the dog alerted, or, for that matter, that Thomas knew that the dog alerted.

[¶ 58.] Yet the trial court found that “Trooper Thomas witnessed Crockett alert to the presence of the odor of illegal drugs in the trunk area of the defendant’s vehicle.” How the court reached this finding is questionable. In response to, the prosecutor’s question, “what did the dog do?” Thomas volunteered the opinion that “he appeared to alert on the vehicle.” Defense counsel immediately objected to that remark because there was no foundation to establish that Thomas knew how to determine a drug dog alert. The trial court sustained the objection and later sustained another defense objection for the same reason. To use that answer, then, as the trial court did, was erroneous. After all, the judge had agreed that Thomas had not been qualified to give this opinion but it nonetheless used the opinion in its findings. Certainly, we should not rely on that opinion. But even if Thomas’s opinion was properly considered, Thomas did not communicate his opinion to Swets. Thomas was there in a backup capacity. He did not prepare a report because he saw his role as purely secondary. It was Swets who decided to search the car; he was the trained drug dog officer; his knowledge was essential to create the basis for probable cause.

[¶ 59.] Even more doubtful, however, is the trial court’s reliance on Deputy Shafer’s testimony that Swets told him that the dog had alerted. First, Swets denied or did not recall that he told either Thomas or Shafer that his dog had alerted. Second, in explaining the way Swets had informed him, Shafer testified that he interpreted Swets’s remark, “Crockett shows some interest ....” to mean that the dog alerted. But that was obviously a misinterpretation. Indeed, Swets confirmed for the trial court that “showing some interest” is not an alert. Thus, Shafer’s testimony that Swets told him the dog alerted was a misinterpretation of what Swets said. The trial court was clearly erroneous in this finding.

[¶ 60.] The Court takes the view that because the circuit court believed Swets, we should defer to the trial judge’s firsthand perception of credibility. It is true that we leave credibility decisions to the trial court, unless we can say that its finding was clearly erroneous. However, the trial court’s reliance on the “corroboration” from the other two officers is problematic' Now, after reviewing the videotape, I cannot ignore the witness of my own eyes. What I see causes me to doubt. I see no verbal indication in the videotape that Trooper Swets thought he was searching based on his dog’s alert. To the contrary, his remarks seem to indicate that he was seeking to search on some other basis.

[¶ 61.] On the other hand, how much weight should we give to the indirect and passing remarks made by the officers as they went about their business? This is not a case like State v. Hanson, 243 Ga.App. 532, 532 S.E.2d 715 (Ga.App.2000), where a videotape showed that a Deputy Sheriff was not credible in contending that he smelled marijuana during a traffic stop. In that case, the Deputy commented outside the hearing of the driver, solely for purposes of the videotape, that the driver and his passenger appeared to be very nervous. He was using the videotape, to make verbal notes of his observations during the traffic stop. But, tellingly, he made no remark, as an aside or otherwise, that he smelled the odor of marijuana. Id. at 533, 532 S.E.2d at 717. The trial court found: “The inclusion of an assertion in the officer’s report that he smelled marijuana is not persuasive in light of the officer’s obvious effort to inject relevant comments sotto voce, which convinces the Court the officer’s testimony on that issue is not credible.” Id. The appellate court agreed, concluding that credibility decisions are for the trial judge. Here, on the other hand, it is obvious from viewing the tape that the officers were not using the video recording to make “verbal notes” or to intentionally record their internal thought processes for the benefit of some future decision maker.

[¶62.] In the end, we have an expert opinion that the dog alerted, although this opinion does not retrospectively create probable cause at the time of the search. Probable cause must be formed on the information confronting the officers at the time, not as later revealed. State v. Meyer, 1998 SD 122, ¶ 23, 587 N.W.2d at 724 (citing State v. Heumiller, 317 N.W.2d 126, 129 (S.D.1982)). The State bears the burden of justifying a warrantless entry into a constitutionally protected area. Lamont, 2001 SD 92 at ¶22, 631 N.W.2d at 610. The trial court found that the State met its burden. I conclude, based on my own legal assessment of the evidence, that the videotape is inconclusive. All we have, then, is whether Trooper Swets is to be believed. Questions of witness credibility are reserved to the trial court, and we have no authority to substitute our judgment for that of the trial judge, unless we can say that the record clearly refutes it. Regardless of whether Trooper Swets communicated his knowledge of his dog’s alert, if the dog alerted and if Swets knew it alerted, he had probable cause to search, even if he expressed some other legal justification to search. The trial judge believed him when Swets testified that he saw his dog alert. With only an inconclusive videotape to rebut Swets’s testimony, the trial judge’s credibility finding must stand. Therefore, I concur in result.

SABERS, Justice,

dissenting.

[¶ 63.] I dissent on Issue ID because the evidence as a whole indicates that the trial court erred in determining that the drug dog “alerted” on the vehicle of Chavez.

[¶ 64.] Unfortunately, the videotape of this stop, search and subsequent arrest does not capture the initial drug sweep by Trooper Swets and his dog, Crockett. However, the evidence that the tape does reveal indicates that actions and comments by Trooper Swets fail to support his assertion that the dog alerted to the presence of drugs.

1. Despite the alleged “alert” by Crockett, Trooper Swets pursued his investigation regarding alien status for over twenty minutes before he commenced the search of the vehicle.
2. In discussing the possibility of searching the car, Trooper Swets stated, “[Aurelio’s] got falsified documents. That’s a crime. We got probable cause for a search. I think that’s what I’m going to go ahead with.” ■ It is significant that Trooper Swets did not suggest Crockett’s alleged alert as probable cause for a search.
3. Trooper Swets did not commence or even seem to become interested in conducting a search until after he became aware that INS' was not interested in the suspects.
4. Although he testified that the dog alerted on the trunk of the car, Trooper Swets began his search with the sunroof because he believed it was “out of alignment.”
5. After the search began, Trooper Swets said to Trooper Thomas, “[s]o we’re not sure what we got, if we got anything. Mike’s pretty sure there’s dope here” (emphasis supplied). Once again, Trooper Swets gives no indication that his dog, Crockett, alerted to the presence of drugs in the vehicle. In fact, he does not even indicate that he personally believes there are drugs in the car.
6. The United States Federal District Court viewed the tape and determined that Crockett did not alert. At the state suppression hearing, the state presented additional evidence that it contends supports the finding that the dog did alert. However, that evidence has little value because the video and audio recording of the stop directly refutes it.

[¶ 65.] Trooper Swets’ behavior after the dog allegedly alerted is inconsistent with his assertion that he performed the search based on the dog having alerted to the presence of drugs. Immediately after returning the dog to his patrol car, the trooper resumed his questioning regarding the alien status of the Defendant and his passengers. At that time, he also radioed dispatch with a request that INS be contacted.

[¶ 66.] At no time during the course of the stop did Trooper Swets inform the other officers that the dog had alerted in the initial search. Although Trooper Swets provided a possible justification for not sharing that information with the suspects, he offered no justification for' withholding such information from his fellow investigating officers. Speaking with Officer Schafer, Trooper Swets stated, “Crockett shows some interest, but ...” The tone of his voice coupled with his actions and subsequent discussions with other officers makes it clear that Trooper Swets did not believe the dog had alerted.

[¶ 67.] The majority opinion relies heavily on the testimony of Kyle Heyen, a dog trainer, that he heard Crockett alert when he viewed the videotape. The testimony is not credible for two reasons:

1) In listening to the videotape, one can clearly hear the sound of Trooper Swets breathing as the “drug sniff’ proceeds. The sound of Trooper Swets’ breathing stops whenever he speaks to the dog. Heyen admitted on cross examination that he did not hear Trooper Swets breathing. If Heyen could not hear the trooper’s audible breathing, the question becomes how could he have heard the dog alert?
2) Careful review of the video does not support Heyen’s testimony at trial. He testified that when Crockett alerts “he gets increased — very intense sucking in through his nose that — It’s very audible, and you can hear it.” He also testified that he heard the dog on the videotape and that “[Crockett’s] nose started inhaling, sucking in, being a Hoover vacu- ■ um.” However,-as the majority opinion notes at ¶ 24, there is no obvious sucking sound.

[¶ 68.] The evidence taken as a whole simply does not support the trial court’s finding that the dog alerted to the presence of drugs in the vehicle. This Court should hold that the trial court clearly erred in this finding and proceed to determine whether Chavez’s Miranda and other constitutional rights were violated by the questioning about his alienage in a traffic stop.

[¶ 69.] MEIERHENRY, Justice, joins this dissent.

      . SDCL 32-15-6 provides:
      It is a petty offense for any person to drive any vehicle upon a highway with any object or gadget dangling between the view of the driver and the windshield of the vehicle.

      . Trooper Thomas's testimony was not presented at the federal suppression hearing. Thomas testified at the state hearing that he had worked with Swets and Crockett several times and had observed how Crockett reacted when he detected the odor of illegal drugs. In addition, Thomas had assisted Swets when Swets practiced and trained Crockett.

      . The evidence reflects that when Crockett alerts to the odor of illegal drugs, the officer gives the dog a toy. The arrest videotape does not show Chavez’s vehicle, but it does show that when Crockett returned to the officer’s car after sniffing the Chavez vehicle, Crockett had the toy in his mouth.

      . Chavez argues that if the dog did not alert and provide probable cause, the officers had no justification to expand the traffic stop into a complete search of his vehicle. Chavez raises a number of arguments contending that the evidence obtained through questioning should be suppressed under Issues IB and 1C. Those contentions include: that the questioning concerning immigration status was unrelated to the objective purpose of the traf-fie stop; that the expansion of the scope of the stop was not permitted because Chavez and the passenger were not unusually nervous, did not tell conflicting stories about the purpose of the trip, and were not inconsistent about the passenger's residence; that the trooper should not have considered Seattle as a '"source city” for illegal drugs; and, that Chavez’s statements were obtained without required Miranda warnings.

      . See the evidence in note 2 supra, and note 7 infra.

      . A review of the videotape reveals no improper motive in the positioning of the video camera that was mounted inside Swets’ vehicle. Because Chavez made a 90-degree turn immediately before stopping, Swets’ vehicle and Chavez's vehicle were simply pointed in different directions.

      . Heyen presented extensive testimony at the state suppression hearing explaining how Crockett had been trained; how Crockett reacted to the odor of illegal drugs; how Crockett had passed his recertification in 2000 without problem; and, that he had listened to the tape of Chavez’s arrest approximately a dozen times, and based on what he heard on the tape, it was his opinion that Crockett had in fact alerted to the odor of illegal drugs.

        .See note 9, infra.

      . We should be loath to reverse a trial court's finding that it believed four live witnesses, especially in the absence of any direct evidence contradicting their testimony. The dissent would nevertheless do so solely by the use of a rhetorical question and "appellate inferences" that it draws from the record. The appropriate scope of appellate review should leave such inference making to the fact finder who actually observed those witnesses being cross-examined on the very inferences now drawn by the dissent. Under the appropriate scope of review, "[w]here there are two permissible views of the evidence, the fact finder's choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 528 (1985). Our clearly erroneous review of this factual dispute makes it especially difficult to agree with the dissent’s appellate inference that "it is clear that Trooper Swets did not believe the dog had alerted.” ¶ 66, infra, (emphasis added).
      Other inferences of fact drawn by the dissent also demonstrate the impropriety of appellate second-guessing the fact finder’s credibility inferences on live witnesses. The first example is aptly demonstrated by the dissent's inference that Heyen proffered an "unsupportable” opinion that Crockett's breathing patterns, changed sufficiently to signal an alert. It is suggested that Heyen’s confirmation of an alert is unsupported because the videotape does not reveal an obvious sucking sound like a "Hoover vacuum.” 1167, infra. However, this criticism actually demonstrates the frailty of appellate second-guessing credibility determinations. It does so because the dissent’s inference drawn from Heyen’s opinion was specifically presented to the witness and the trial court. In fact, the videotape was played to the trial court while Heyen was required to identify the noises he relied upon to form his opinion. Heyen explained that he relied not only on the "sucking through the nose sound,” but also upon: the dog’s change in breathing; a lack of other "sniffing"; Swets' tap, whistle and other noise; Swets' use of the words "good boy”; and, the dog leaving with a toy. Although these facts are omitted from the dissent’s analysis, they were presented to the trial court.

        Heyen was also able to answer other inferences rejected by the trial court, but adopted by the dissent. For example, Hey-en was able to identify for the trial court, the distinction between Swets' breathing and the dog’s breathing that the dissent finds missing. So also, Heyen explained to the trial court why Swets may not have orally emphasized an alert to all of the other officers.
      Finally, it must be noted that Lawrence County Deputy Sheriff Michael Shafer provided evidence refuting the dissent's inference that Swets failed to tell anyone that the drug dog alerted. Deputy Shafer specifically testified that he arrived at the scene within minutes of the alert, and Swets immediately informed him upon his anrival that the dog had "showed interest,” which Schafer understood to be an alert. Moreover, Shafer's confirmation of Swets’ contemporaneous indication of an alert was corroborated by Shafer's written report prepared well before the issue of the alert surfaced in the federal proceedings. All of this evidence was considered by the trier of fact, and absent some direct evidence to the contraiy, we should not second-guess that fact finder.
      In the final analysis, it is significant that the trial court initially expressed extreme reluctance to reconsider the federal court findings. Nevertheless, it proceeded after being told it would hear different evidence. Moreover, the trial court had the benefit of live testing of the witnesses on the dissent’s suggested inferences, but the trial court rejected them. It apparently did so because this record consists of the sworn testimony of four witnesses supporting an alert, with no contrary testimony. Under those circumstances, we are certainly not in a position to now make better inferences than the trial court, including a finding that four witnesses lied.

      . “The Double Jeopardy Clause of the Fifth Amendment declares that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb.' South Dakota’s Constitution provides that 'No person shall . .V be twice put in jeopardy for the same offense.' SD Const Art VI, § 9.” State v.

        Dillon, 2001 SD 97, ¶ 13, 632 N.W.2d 37, 43. "The principle of criminal collateral estoppel is embodied in the double jeopardy clause of the [F]ifth [A]mendment[.]” State v. Flittie, 318 N.W.2d 346, 348 (S.D.1982).

      . SDCL 22-5-8 provided:
      Whenever it appears that the accused has already been acquitted or convicted upon any criminal prosecution under the laws of another state, government, or country founded upon the act or omission in respect to which he is upon trial, this is a sufficient defense.
      SDCL 23-2-13 provided in part:
      When an act charged as a public offense is within the jurisdiction of another territory, state, or country as well as this state, a conviction of [sic] acquittal thereof in the former is a bar to a prosecution therefor in this state.

        West, 260 N.W.2d at 220.

      . Under the dual sovereignty doctrine "successive prosecutions by the state and federal governments do not constitute double jeopardy.” Turley v. Wyrick, 554 F.2d 840, 841 (8thCir.1977). The dual sovereignty doctrine was recently reaffirmed in United U.S. v. Johnson, 169 F.3d 1092 (8thCir.1999) (stating that a subsequent prosecution by a separate sovereign does not violate the constitution). Courts have consistently upheld the dual sovereignty doctrine. Id.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2003 SD 91
    Lanaya GOEDEN, Petitioner and Appellee, v. Dennis DAUM, Respondent and Appellant.
    No. 22709.
    Supreme Court of South Dakota.
    Considered on Briefs May 27, 2003.
    Decided July 30, 2003.

      William J. Klimisch of Goetz & Klimisch, Yankton, South Dakota, Attorneys for petitioner and appellee.
    Michael D. Stevens of Blackburn & Stevens, Yankton, South Dakota, Attorneys for respondent and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Lanaya Goeden (Goeden) filed a petition and affidavit for a protection order against Dennis Daum (Daum) for stalking. The trial court entered an ex-parte temporary protection order. A hearing on the permanent protection order was held, and as a result of the hearing, the trial court entered a protection order against Daum for a period of three years. Daum appeals. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] At the permanent protection order hearing, the parties presented conflicting testimony to the court involving contact between the parties since their divorce. Goeden alleged that Daum was verbally and physically abusive during the marriage and that he continually contacted her after the divorce pressing her to work out their problems and to get remarried. Although Goeden eventually married someone else, Daum continued to contact her. Goeden claimed that Daum called her repeatedly at home and at work and was constantly leaving messages that normally ended in a threat. Eventually, Goeden disconnected her answering machine to prevent Daum from leaving messages. Goeden testified that Daum would let the phone ring forty to fifty times. She claimed his behavior forced her to buy a telephone with a security device that would disconnect after ten rings if the caller failed to enter a security code. In opposition to her claims, Daum denied letting the phone ring forty to fifty times and denied placing harassing phone calls. Daum asserted that he only called , to talk about-the children or issues regarding insurance or visitation. He said the only messages he left on her phone related to the children.

[¶ 3.] In addition to the harassing phone calls, Goeden alleged that Daum was ■ following and spying on her. One occasion occurred when Goeden and Daum exchanged children for purposes of visitation at the visitation center in Yankton, SD. At the visitation center, the parents are not to have contact with each other and are required to enter and leave by different doors. During one of the exchanges, Goeden claimed that Daum parked his car in an alley to watch her as she exited the visitation center. On another occasion, Goeden claimed that Daum was watching her at her place of employment. She had gone to the bank where she worked after 11:00 p.m. to pick up some files and saw Daum parked by the automated teller machine (ATM) outside the bank. Goeden claimed that the security log from the bank showed no ATM transaction during that time frame. Daum denied spying on Goeden from the ATM and denied sitting outside the visitation center. On another occasion, Goeden claimed that Daum followed her to her residence. Daum denied following her intentionally. He testified that both he and Goeden live a few blocks of each other and travel the same street to their respective houses. Daum said he may have inadvertently followed her on his way home or viceversa. .

[¶ 4.] At the conclusion of the hearing, the trial court granted the protection order against Daum for a period- of three years. Daum appeals the following issue:

1. Whether the trial court abused its discretion in granting a protection order.

STANDARD OF REVIEW

[IF 5.] The grant or denial of a protection order is reviewed under the same standard used to review the grant or denial of an injunction. Marks v. Clark, 2001 SD 122, ¶ 9, 635 N.W.2d 278, 280. We must first determine if the trial court’s findings of fact were clearly erroneous. Id.

In applying the clearly erroneous standard, our function is not to decide factual issues de novo. The question is not whether this court would have made the same findings that the trial court did, but whether on the entire evidence we are left with a definite and firm conviction that a mistake has been committed. This court is not free to disturb the lower court’s findings unless it is satisfied that they are contrary to a clear preponderance of the evidence. Doubts about whether the evidence supports the court’s findings of fact are to be resolved in favor of the successful party’s ‘version of the evidence and of all inferences fairly deducible therefrom which are favorable to the court’s action.’

Id. (citations omitted). If the findings of fact are not clearly erroneous, this Court must then determine whether the trial court abused its discretion in granting or denying the protection order. Id.

DECISION

[¶ 6.] The trial court concluded that stalking had occurred under SDCL 22-19A; however, the trial court failed to enter findings of fact in support of that conclusion. Daum claims that the trial court erred in entering a protection order because the evidence did not support a finding of stalking. The parties presented conflicting versions of the events, and the trial court as the fact finder had to judge whose version was credible. State v. McGarrett, 535 N.W.2d 765, 768 (S.D.1995). “It is well-settled law that it is the trial court’s duty to make required findings of fact, and the failure to do so constitutes reversible error.” Grode v. Grode, 1996 SD 15, ¶ 29, 543 N.W.2d 795, 803 (citations omitted).

[¶ 7.] We cannot meaningfully review the trial court decision without the trial court’s reasons for ruling the way it did. The standard of review requires that we first determine whether the findings of fact are clearly erroneous. Marks, 2001 SD 122 at ¶ 9, 635 N.W.2d at 280. Without findings of fact, there is no way to determine the basis for the trial court’s conclusions that stalking had occurred or whether those findings were clearly erroneous. Secondly, we are to determine whether the trial court abused its discretion in light of those findings in granting the protection order. “An abuse of discretion can simply be an error of law or it might denote a discretion exercised to an unjustified purpose, against reason and evidence.” Sjomeling v. Stuber, 2000 SD 103, ¶ 11, 615 N.W.2d 613, 616.

[¶ 8.] The trial court’s only pronouncement, at the conclusion of the testimony, was a general statement that he found stalking had occurred under SDCL 22-19A. He did not indicate which version of the evidence he believed. Nor did he indicate how the evidence met the statutory elements of stalking. The order of protection form used by the courts provides a section which the court completes. The order specifically provides a place for the court to check the .stalking restraint. This portion of the order, prohibits the respondent from doing one or both of the following:

□ a) willfully, maliciously, and repeatedly following or harassing the Petitioner, or making any credible threat with the intent to place the Petitioner in reasonable fear of death or great bodily injury, SDCL 22-19A;
□ b) committing any acts of physical injury as a result of an assault or a crime of violence, SDCL 22-1-2(9).

In completing the order of protection, the trial court did not check either provision. The court only restrained “the respondent [Daum] from coming within a distance 200 feet of the Petitioner [Goeden] personally and' of the Petitioner’s residence” and “work.” The court also added, as other relief, that the order would not preclude Daum from driving by Goeden’s home or using the ATM at the bank where she worked.

[¶ 9.] In making a decision, the trial court must set forth the basis for its con-elusions with sufficient specificity to permit a meaningful review. We realize that the parties to a petition for a protection order regularly appear pro se and that trial judges frequently conduct protection order hearings in a manner designed to expedite a large volume of requests. The legislature’s mandate requiring the court to set a hearing within 30 days of receiving the petition also forces scheduling burdens in many courts. SDCL 25-10-4. In order to accommodate the litigants, judges tend to relax procedural and evidentiary rules normally applied in other civil or divorce proceedings. The rules of civil procedure, however, should not be relaxed to the point of skipping a crucial element of a court trial involving contested facts. Unless waived, the judge must insure that findings of fact and conclusions of law are clearly entered. This may be done orally on the record following the hearing, or with a written memorandum, or by filing formal findings of fact and conclusions of law, or by incorporating them into the protection order itself. In the present case, both parties were represented by attorneys and the court could have requested proposed findings from the attorneys.

[¶ 10.] We reverse and remand to allow the trial court to enter findings of fact and conclusions of law.

[¶ 11.] Based on the above holding, we need not address the other issues raised by Daum.

[¶ 12.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

       "Findings of fact and conclusions of law are waived by failing to appear at the trial, by consent in writing filed with the clerk, by oral consent in open court, or by entering into a stipulation of facts for consideration by the court.” SDCL 15-6-52(b).


author: HUDSON, Judge.

text:
    In re The Matter of the John R. HORTON Irrevocable Trust Dated February, 1981.
    No. C1-02-2266.
    Court of Appeals of Minnesota.
    Aug. 26, 2003.

      Donald F. Ryan, Crow Wing County Attorney, Candace Prigge, Assistant County Attorney, Brainerd, MN, for appellant Crow Wing County Social Services.
    John H. Erickson, Erickson, Pearson & Aanes, Brainerd, MN, for respondent trustee Bernhard Warling.
    Considered and decided by WILLIS, Presiding Judge, HUDSON, Judge, and FORSBERG, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

HUDSON, Judge.

Trust beneficiary John R. Horton is incapacitated and has been civilly committed by Crow Wing County to the Brainerd Regional Treatment Center. Crow Wing County Social Services (CWCSS) seeks review of a district court order concluding that the assets of the John R. Horton Irrevocable Trust were not “available” liquid assets, thus relieving the trustee from any obligation to fund Horton’s placement in a less-restrictive, adult-care facility. Because we conclude that the John R. Horton Irrevocable Trust is a discretionary trust and the settlor did not intend for the trust to supplant public assistance, we affirm. Because our review is confined to statements supported by the record, CWCSS’s motion to strike statements in respondent’s brief as outside the trial record is denied.

FACTS

In the late 1970s, John R. Horton (Horton) was injured in a boating accident in which he sustained a severe head injury. In a subsequent trial, Horton was awarded damages. See Horton v. Orbeth, Inc., 342 N.W.2d 112 (Minn.1984). In 1981, the John R. Horton Irrevocable Trust (Horton Trust) was created, funded by the lawsuit damage award; Horton’s parents, Edward and Francis Horton, served as the initial trustees of the Horton Trust. Bernhard Warling (respondent) became trustee approximately two years ago. Horton, though unmarried at the time the trust was created, subsequently married and has two children. Horton, his wife Rita Horton, and their two children are the trust beneficiaries. Currently, the trust has approximately $293,000 in assets.

In August 2001, Rita Horton lost her job; subsequently, she and John Horton applied to the Minnesota Department of Human Services for medical assistance but were denied assistance because of excess assets. The Hortons appealed the denial. On December 12, 2001, the Minnesota Department of Human Services affirmed the denial of medical assistance, concluding that the assets in the Horton Trust, which exceeded the $3,000 (or $6,000 for a household) limit for personal assets, were available assets for the purpose of determining medical-assistance eligibility. The Horton children, who have special needs, continue to receive medical assistance.

Horton’s medical condition deteriorated, and on February 19, 2002, Horton was civilly committed by petition of Crow Wing County to the Brainerd Regional Treatment Center. In compliance with the Minnesota civil-commitment statute, CWCSS determined that the least-restrictive alternative placement for Horton is an adult foster-care facility in Pequot Lakes, Minnesota. The monthly care cost is approximately $3,500.

CWCSS requested that respondent approve Horton’s placement plan and guarantee payment for the monthly cost. Respondent has not agreed to expend funds for Horton’s placement in the adult-care facility and believes authorizing such funds would exceed the scope of his authority as trustee. Respondent contends that CWCSS should be responsible for financing Horton’s placement if it believes that such placement is in Horton’s best interests. Respondent further contends that because the trustee currently owns a home in which Horton could reside, a separate housing expense is unnecessary.

On July 11, 2002, pursuant to Minn.Stat. § 501B.16 (2002), CWCSS petitioned the district court for an order directing respondent to make trust assets available for any placement it deemed medically necessary for Horton. Pursuant to Minn.Stat. § 501B.18 (2002), CWCSS published a copy of the order for hearing in a legal newspaper. CWCSS then mailed a copy of the hearing order to respondent’s attorney and to Horton in care of the Brainerd Regional Human Services Center.

In respondent’s answer to CWCSS’s petition, he argued, among other things, that CWCSS lacked standing to petition the district court for an order; that CWCSS failed to state a claim on which relief could be granted; and that the district court lacked subject-matter jurisdiction and personal jurisdiction over respondent. Pursuant to stipulation, the parties agreed that the only issue the district court was to decide was whether respondent is obligated to expend monies for the care of John R. Horton. The district court decided in the negative, concluding that the Horton Trust assets are unavailable as Horton’s liquid assets. This appeal follows.

ISSUES

I. Did CWCSS have standing as an “interested person” within the meaning of Minn.Stat. § 501B.16 (2002) to petition the district court for an order determining the availability of trust assets?

II. Did the district court err in concluding that the Horton Trust assets were unavailable?

ANALYSIS

I

Whether a party has standing is a question of law that appellate courts review de novo. Joel v. Wellman, 551 N.W.2d 729, 730 (Minn.App.1996), review denied (Minn. Oct. 29, 1996). This court is not bound by and need not give deference to the district court’s decision on a purely legal issue. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). Statutory construction is a question of law which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

We begin by noting that, apparently because of the parties’ stipulation, the district court did not address the standing issue in its order determining the availability of the Horton Trust assets. Generally, this court will not consider matters not argued and considered in the district court. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988). But the question of standing cannot be waived and may be raised at anytime. See Patzner v. Schaefer, 551 N.W.2d 736, 737 (Minn.App.1996) (stating “[t]he question of standing is not subject to waiver ...: we are required to address the issue even if the courts below have not passed on it, and even if the parties fail to raise the issue before us”) (quoting United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995)); see also Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 433 (Minn.App.1995) (stating “[standing may be raised at any time”), review denied (Minn. May 31, 1995).

A trustee of an express trust or a “person interested in the trust” may petition the district court for an order with respect to matters enumerated in the statute. Minn.Stat. § 501B.16 (2002). Specifically, for the purposes of this appeal, an “interested person” may petition the district court for an order to construe or interpret the terms of a trust, or to instruct the trustee, beneficiaries, and any other interested parties in any matter relating to the administration of the trust and the discharge of the trustee’s duties. Id., (4)(23). Chapter 501B, however, does not define “interested person.”

CWCSS argues that in its capacity as a “designated agency” under Minn.Stat. § 253B.15 (2002), and as an administrating agency of public-assistance programs, it is an “interested person” and may bring a petition for an order under section 501B.16. CWCSS also relies on the definition of “interested person” contained in the probate code, which provides, “ ‘[i]nterest-ed person’ includes heirs, devisees, children, spouses, creditors, beneficiaries and any others having a property right in or claim against the estate of a decedent, ward or protected person which may be affected by the proceeding.” Minn.Stat. § 524.1-201(24) (2002).

Respondent contends that CWCSS lacks standing because it is not a creditor of the Horton Trust or a trust beneficiary. Respondent argues further that the “interested person” definition in the probate code is inapplicable to an action involving a trust because there is no estate in question and the probate laws are significantly different from the law of trusts.

We agree with respondent that the definition of “interested person” contained in the probate code is inapplicable because this controversy concerns the availability of trust assets — there are no heirs, devisees, or a decedent’s estate to consider. We conclude that in the context of chapter 501B, an “interested person” is more accurately defined as a person or entity with a specific financial stake in or a specific claim against the trust. Therefore, CWCSS has standing if it can be determined that, as a social-service agency coordinating Horton’s discharge plans, it has a financial stake in or claim against the Horton Trust.

The record does not support a finding that CWCSS has a claim against the Horton Trust. There is no evidence, for example, that respondent, on behalf of the Trust, contracted with CWCSS for services and then failed to pay for those services. But CWCSS contends that as a designated agency, it has a financial stake in the determination of respondent’s obligation under the Horton Trust as it relates to Horton’s medical care. CWCSS argues that if the trustee is not required to pay for reasonable and necessary medical expenses, Horton has no other means of support, making Horton then eligible for public assistance. We are persuaded by CWCSS’s argument. A finding that the Horton Trust assets are not available to pay for Horton’s placement would place CWCSS in a position of having to locate alternative funding. Therefore, CWCSS does have a specific financial stake in whether the Horton Trust is an asset available to Horton. We conclude that CWCSS is an “interested person” for purposes of section 501B.16 and has standing to petition the district court for an order determining the availability of trust assets for Horton’s medical care.

Next, respondent contends that notice of the hearing was improper. CWCSS argues notice of the hearing was properly served in compliance with Minn. Stat. § 501B.18 (2002). Determination of whether service of process was proper is a question of law. Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn.App.1992), review denied (Minn. July 16, 1992). Upon review of the record, it does not appear that this issue was ever presented to the district court. Similarly, respondent argues for the first time on appeal that CWCSS has not exhausted all administrative remedies in ascertaining available funds for Horton’s placement. We generally do not consider matters not presented to and considered by the district court. Thiele, 425 N.W.2d at 582. Accordingly, we decline to consider these issues here on appeal.

II

CWCSS argues that the district court’s conclusion that the Horton Trust assets were unavailable to Horton is erroneous because the Horton Trust is a support trust. Therefore, CWCSS argues, respondent must pay all of Horton’s necessary medical and living expenses. Respondent counters that the Horton Trust is a discretionary trust in which Horton has no property interest and therefore the trust assets are unavailable to Horton. We agree.

Whether a trust is an available asset is a question of law. In re Carlisle Trust, 498 N.W.2d 260, 263 (Minn.App.1993). This court is not bound by and need not give deference to the district court’s determination of a purely legal question. Frost-Benco Elec., 358 N.W.2d at 642. Two factors are relevant in determining whether a trust is an available asset: “(1) the type of trust involved, and (2) the settlor’s intent in creating the trust.” Carlisle, 498 N.W.2d at 264.

1. Type of Trust

The general rule is that a support trust is an available asset, while a discretionary trust is not. Id. at 264. A support trust is considered to be an available asset because the beneficiary can legally compel the trustee to distribute trust assets to him or her. Id. The beneficiary of a discretionary trust has no such power because a discretionary trust grants the trustee absolute discretion to disburse the trust assets. Id.

The trust of which Horton is a beneficiary expressly states:

If the donor shall be incapacitated by illness, accident or other misfortune, the trustees may pay to or apply directly for the benefit of the donor, his wife or persons dependent upon him for support such sums from the income or principal of the trust estate from time to time as the trustees, in the exercise of their sole discretion deem necessary or advisable in order to provide for the proper support and maintenance of the donor, his wife or persons dependent upon him for support.

(Emphasis added.)

CWCSS argues that this language makes the Horton Trust a support trust because it is virtually identical to the trust language in McNiff v. Olmsted County Welfare Dept. in which the supreme court concluded that the trust was a liquid asset. See 287 Minn. 40, 45, 176 N.W.2d 888, 892 (1970). The McNiff trust agreement provided,

[u]ntil the death of the survivor of either my wife, ..., or my daughter, ..., the trustee shall administer the trust estate for the benefit of my wife and my said daughter, or the survivor of either, and the trustee shall apply the income in such proportion together with such amounts of the principal as the trustee, in its discretion, deems advisable for the maintenance, care, support and education of both my wife and my said daughter.

Id. at 891 (emphasis added).

We disagree that McNiff necessitates a conclusion that the Horton Trust is a support trust. The two agreements are readily distinguishable. The McNiff trust agreement provides that the trustee “shall apply” the trust assets to the maintenance and support of the trust beneficiaries, while the Horton Trust agreement directs that the trustee “may pay” the trust assets toward the trust beneficiaries’ maintenance and support. The “shall apply” language mandates the payment of trust assets for the support and maintenance of the trust beneficiaries. This language is consistent with the nature of a support trust, which directs the trustee to distribute trust income or principal as necessary for the support and maintenance of the beneficiary. See, e.g., Carlisle, 498 N.W.2d at 264.

Conversely, the Horton Trust agreement does not direct the trustee to distribute the trust assets to Horton. The “may pay” language places the power to distribute trust assets solely within the discretion of the trustee. See United States v. O’Shaughnessy, 517 N.W.2d 574, 577 (Minn.1994) (concluding that the words “may pay” revealed settlors’ intent to create a discretionary trust). Unlike the McNiff trust beneficiaries, neither Horton nor the other Horton Trust beneficiaries can compel the trustee to distribute trust assets on their behalf. Under Minnesota law, a beneficiary of a discretionary trust has only a “mere expectancy” in the non-distributed income and principal until the trustee elects to make a distribution of the trust assets. Id. Before the trustee has exercised his discretionary power of distribution under the trust agreement, a beneficiary does not have “property” or any “right to property” in the non-distributed trust principal or income. Id. at 578. We conclude that the Horton Trust is a discretionary trust, and therefore Horton has no authority to compel distribution of trust assets to himself.

2. Settlor’s Intent

The second consideration in determining whether the trust assets are “available” to Horton requires us to ascertain the settlor’s intent in creating the Horton Trust. The trust settlor’s intent will be carried out if it is not contrary to law and public policy. McNiff, 287 Minn, at 48, 176 N.W.2d at 891. When the set-tlor’s intent is to supplement rather than supplant government financial assistance available to the trust beneficiary, courts give effect to the settlor’s intent and find the trust is not an available asset. Carlisle, 498 N.W.2d at 265.

CWCSS argues the Horton Trust agreement lacks language like the trust agreement in Carlisle that expressly stated the trust was to supplement and not supplant public assistance. CWCSS contends the absence of this language makes the Horton Trust an available asset. We disagree.

The purpose of a trust is to ensure the beneficiary access to the trust corpus and to close avenues by which he or others might acquire, dispose of, impair, or encumber the property. See In re Thome’s Estate, 145 Minn. 412, 417, 177 N.W. 638, 639 (Minn.1920). It is considered an abuse of discretion for a trustee, even where the trustee has absolute, unlimited, or uncontrolled discretion, to violate the settlor’s intent or the trust’s purpose. O’Shaughnessy, 517 N.W.2d at 577.

In Carlisle, the trust agreement expressly prohibited the trustee from making any distributions for the beneficiary’s “basic necessities as provided or to be provided by any governmental unit” and directed that the trustee “shall make distributions only to supplement and not to supplant such public assistance available for maintenance, health care or other benefits.” Carlisle, 498 N.W.2d at 265. The evidence in the record persuades us that, even absent language expressly prohibiting the distribution of trust assets where government assistance is available, the settlor of the Horton Trust did not intend for the trust to supplant public assistance. First, Article VII of the Horton Trust agreement provides:

Neither principal nor income of the trust nor any beneficiary’s interest therein, while undistributed in fact, shall be subject to alienation, assignment, encumbrance, appointment or anticipation by the beneficiary, nor to garnishment, attachment, execution or bankruptcy proceedings, nor to claims for alimony or support or any other claims of any creditor or other person against the beneficiary, nor to any other transfer, voluntary or involuntary, from the beneficiary.

This provision supports the conclusion that it was the Horton Trust settlor’s intent to protect the trust assets from anyone asserting a claim of right to the trust assets based on an association with any of the trust beneficiaries. In other words, any claims against undistributed trust assets are prohibited. Second, in his affidavit, respondent indicates that he discussed the Horton Trust with earlier trustees who indicated the trust was created in part to protect its assets from Horton’s potential creditors. Moreover, respondent indicated that it was his understanding that the trust was created as an attempt to protect the trust assets from having to be expended for Horton’s support if Horton became a ward of the state. Third, Frances Horton, a former trustee of the Horton Trust, stated in her affidavit that the trust was created to protect Horton from others and their possible interest in getting at the assets in the trust. We agree with the district court that the settlor’s intent was to protect the Horton Trust assets from others and to grant the trustee sole discretion in distributing the trust assets.

Because the Horton Trust is a discretionary trust and it was not the settlor’s intent for it to supplant public assistance, we conclude that the Horton Trust is not an available asset. While the Horton Trust is meant to provide care and maintenance to Horton, respondent, as trustee, has the final and sole discretion as to how such funds should be distributed. Furthermore, we cannot say that the extent of the discretion conferred here is contrary to public policy, especially in light of the fact that the trust beneficiaries include not just Horton, but his wife and children as well. Under these circumstances respondent, as trustee, must consider both Horton and his family in making trust distributions. Therefore, on this record, we conclude that the district court was correct in finding that the Horton Trust assets are unavailable to Horton.

Lastly, CWCSS moved to strike statements in respondent’s brief, arguing that the statements are outside the record on appeal. Because this court has confined its review to statements supported by the record, any statements outside the record have not been considered, thus the motion is denied.

DECISION

Crow Wing County Social Services is an “interested party” within the meaning of Minn.Stat. § 501B.16 (2002). Because the Horton Trust is a discretionary trust, and the settlor’s intent in creating the trust was not to supplant any governmental assistance that may be available to Horton, the district court properly concluded that the Horton Trust is not an available asset.

Affirmed; motion denied.

      . In Minnesota, "Medicaid” is known as "medical assistance.” In re Carlisle Trust, 498 N.W.2d 260, 263 n. 1 (Minn.App.1993).

      . See Minn.Stat. § 256B.056, subd. 3 (2002). Neither John nor Rita Horton appealed the department's determination that the trust assets were “available” for the purpose of determining medical-assistance eligibility. That ruling is not being considered in this appeal.

        .See Minn.Stat. § 253B.09, subd. 1 (2002) (requiring commitment to the least-restrictive treatment program that can meet the patient’s treatment needs).

      . An aftercare plan specifying the services and treatment to be provided to a patient released on provisional discharge, the financial resources available to pay for the services specified, “the expected period of provisional discharge, the precise goals for the granting of a final discharge, and conditions or restrictions on the patient during the period of the provisional discharge,” is to be provided to the patient, the patient’s attorney, and the "designated agency." Minn.Stat. § 253B.15, subd. 1 (2002) (emphasis added). A "designated agency” is defined as any agency selected by the county board to provide the social services required under chapter 253B. Minn. Stat. § 253B.02, subd. 5 (2002).

      . A notice of the hearing, unless waived, must be given,
      (1) by publishing, at least 20 days before the date of the hearing, a copy of the order for hearing one time in a legal newspaper for the county in which the petition is filed; and (2) by mailing, at least 15 days before the date of the hearing, a copy of the order for hearing to those beneficiaries of the trust who are known to or reasonably ascertainable by the petitioner.
      Minn.Stat. § 501B.18.

      . While the McNiff court termed the trust a discretionary trust, we concluded in Carlisle that the McNiff trust was not a "true discretionary trust” because of the McNiff court’s conclusion that the beneficiary could compel the trustee to disburse at least a portion of the trust assets for her benefit. Carlisle, 498 N.W.2d at 265.