author: KAPSNER, Justice.

text:
    2000 ND 188
    STATE of North Dakota, Plaintiff and Appellee, v. Wayne LOH, Defendant and Appellant.
    No. 20000095.
    Supreme Court of North Dakota.
    Oct. 26, 2000.
    Bruce A. Romanick, Assistant State’s Attorney, Bismarck, for plaintiff and ap-pellee.
    Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Wayne J. Loh appeals from his judgment of conviction, raising the issue of the trial court’s denial of his motion to suppress evidence, arguing the law enforcement officer did not have a reasonable and articulable suspicion to justify stopping Loh’s vehicle. We affirm, concluding the officer had probable cause to conduct the investigatory vehicle stop.

I

[¶ 2] On May 6, 1999, at around 9:30 p.m., a law enforcement officer noticed Loh’s vehicle traveling slowly, confirmed by radar to be traveling 32 miles per hour in a 55-mph zone. The officer followed the vehicle for approximately five miles, observing the vehicle cross the fog line twice and the center line once, as well as noticing “a lot of in-lane weaving.” After the police dispatcher indicated Loh was the registered owner of the vehicle, the officer ran a driver’s license check and determined Loh’s license was suspended. When the officer stopped the vehicle to investigate whether the driver was under the influence of alcohol, Loh identified himself to the officer and admitted he had a suspended driver’s license. The officer detected an odor of alcohol and conducted field sobriety tests. The officer arrested Loh for driving under suspension. After searching the vehicle, the officer found alcohol in the vehicle, including one opened bottle that was almost empty. The officer did not cite Loh for driving while intoxicated or having an open container of an alcoholic beverage.

[¶ 3] Subsequently, Loh filed a motion to suppress the evidence obtained from the investigatory stop. Loh testified he had slowed down to read the street sign because he was looking for a particular street. Loh testified he did not cross the center line or fog .lines and did not believe he had weaved in the traffic lane. The trial court denied Loh’s motion to suppress, finding the officer had probable cause to stop the vehicle because the officer observed Loh cross the fog and center lines. Because Loh had been drinking, the trial court concluded Loh had a less clear recollection of the erratic driving than the officer. Loh appeals.

II

[¶ 4] We affirm the decision of a trial court on a motion to suppress, after resolving conflicting evidence in favor of affirming the decision, unless we conclude there is insufficient evidence to support the decision or the decision goes against the manifest weight of the evidence. State v. Kenner, 1997 ND 1, ¶7, 559 N.W.2d 538. Recognizing the importance of the trial court’s opportunity to observe witnesses and assess their credibility, we accord great deference to the trial court’s decision in suppression matters. Id.

[¶ 5] The law is clear regarding investigative stops of vehicles. To legally stop a vehicle, an officer must have a reasonable and articulable suspicion that a motorist has violated or is violating the law. Id. at ¶ 8. Although the concept of reasonable suspicion is not readily reduced to a neat set of legal rules, we have held that reasonable suspicion does require more than a “mere hunch.” Id. Reasonable suspicion is a less stringent standard than probable cause. Kahl v. Director, N.D. Deft of Transp., 1997 ND 147, ¶ 12, 567 N.W.2d 197. To establish probable cause, an officer must have reasonable trustworthy information sufficient to warrant a person of reasonable caution to believe an offense has been or is being committed. City of Bismarck v. Glass, 1998 ND App 1, ¶ 13, 581 N.W.2d 474. Probable cause to believe a motorist has violated a traffic law renders a stop reasonable and the evidence obtained from the stop admissible. Kahl, at ¶ 12 (citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)).

A

[¶ 6] Loh argues the officer did not have a reasonable and articulable suspicion Loh was violating a law when the officer observed slow speed, crossing the fog line twice, crossing the center line once, and in-lane weaving. Loh contends the officer was unable to identify Loh as the driver before the stop. Thus, Loh asserts the officer improperly stopped Loh’s vehicle based on a mere hunch, and evidence obtained from the stop should be suppressed. We disagree.

[¶ 7] It is well settled that even minor traffic violations provide officers with the requisite grounds for conducting investigatory vehicle stops. In re T.J.K., 1999 ND 152, ¶ 9, 598 N.W.2d 781. Under N.D.C.C. § 39-10-08(1), driving or weaving on the wrong half of the roadway is a traffic violation. Thus, we previously have determined that a driver’s crossing the center line gave the officer probable cause to stop the vehicle for purposes of investigation. Kahl, 1997 ND 147, ¶ 14, 567 N.W.2d 197; see also Zimmerman v. North Dakota Dep’t of Transp. Dir., 543 N.W.2d 479, 482 (N.D.1996) (upholding an investigatory vehicle stop when an officer observed the traffic violation of crossing the center line once).

[¶ 8] At the suppression hearing, Loh disputed the officer’s observations. Loh testified he did not cross the center line, fog line, or weave in his own lane. However, the trial court was “satisfied that [Loh], who not only had a suspended license, but also was drinking on the evening in question, has a less clear recollection of the driving involved.” The trial court found the officer had probable cause to stop Loh’s vehicle. We agree that once the officer observed Loh crossing the center line, the officer had probable cause to believe Loh violated N.D.C.C. § 39-10-08(1), which was sufficient grounds for conducting an investigatory vehicle stop.

B

[¶ 9] Loh also argues the officer never indicated he suspected any alcohol-related or criminal activity after following Loh on “a five mile odyssey.” Loh insists officers must be held to their true reasons for stopping a vehicle, and a court should not be allowed to justify a stop with reasons on which the officers did not actually act. Loh’s argument is misplaced.

[¶ 10] Traffic violations provide a proper basis for stops, even if pretextual, and evidence discovered during such stops is admissible. Wheeling v. Director of N.D. Dep’t of Transp., 1997 ND 193, ¶ 9, 569 N.W.2d 273 (citing Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (rejecting the argument that the reasonableness of traffic stops depends on the actual motivations of the officers)).

[¶ 11] In State v. Smith, 452 N.W.2d 86, 89-90 (N.D.1990), we upheld an investigatory vehicle stop, although the officer’s articulated reason for the stop was inadequate, because the officer had other observations sufficient for probable cause to stop the vehicle. We explained when an officer makes an arrest properly supported by probable cause for a certain offense, the arrest is not vitiated by the officer’s subjective reliance on an offense for which there is no probable cause. Id. at 88-89; see also State v. Hawley, 540 N.W.2d 390, 392 (N.D.1995) (stating the objective standard of reasonable suspicion does not hinge on the subjective beliefs of the arresting officer).

[¶ 12] Similarly, in Zimmerman v. North Dakota Dep’t of Transp. Dir., 543 N.W.2d 479, 483 (N.D.1996), we concluded the validity of an investigatory stop was not vitiated merely because the officer subjectively stopped the vehicle for another reason which, in itself, may not have provided an adequate basis for the stop. We found persuasive the rationale that an otherwise valid stop does not become unreasonable merely because the officer has intuitive suspicions of some other criminal activity; that is, an officer’s state of mind does not have to perfectly match his or her legitimate actions. Id. at 482-83.

[¶ 13] We have previously declined to hold unreasonable, as a matter of law, an officer following a suspect driver for nearly five miles before stopping the vehicle. Johnson v. North Dakota Dep’t of Transp., 530 N.W.2d 359, 361 (N.D.1995). We conceded an officer may show poor judgment in permitting a suspected drunk driver to continue driving once the officer has formed a reasonable and articulable suspicion the driver is violating the law, yet we concluded it would be “equally unwise ... to craft a bright-line rule limiting the distance an officer may follow a driver, suspected of violating the law, before initiating a stop.” Id.

Ill

[¶ 14] Accordingly, we affirm Loh’s conviction and the trial court’s denial of Loh’s motion to suppress evidence because the officer not only had a reasonable and artic-ulable suspicion but had probable cause to justify the investigatory vehicle stop, which was not invalidated when the officer suspected other criminal activity and followed Loh for five miles before initiating the stop.

[¶ 15] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2000 ND 183
    Kevin Lowell ANDERSON and Kaylen Marie Resler, a minor child by and through her guardian ad litem, Dee Larson, Plaintiffs and Appellees, v. Marsha RESLER, Defendant and Appellant.
    No. 990254.
    Supreme Court of North Dakota.
    Oct. 26, 2000.

      Leslie Johnson Aldrich, Johnson Law Office, Fargo, for plaintiffs and appellees.
    Alan J. Sheppard, Fargo, for defendant and appellant.
   MARING, Justice.

[¶ 1] Marsha Resler (Resler) appealed from a judgment changing custody of Res-ler’s daughter from Resler to the child’s father, Kevin Anderson (Anderson). We hold the court’s finding there has been a substantial change of circumstances compelling a change of custody is not clearly erroneous, and we affirm.

I

[¶ 2] Resler and Anderson were never married, but together they conceived a daughter, who was born November 29, 1992. In November 1994, a judgment was entered declaring Anderson to be the father, awarding custody to Resler with reasonable visitation for Anderson, and ordering Anderson to pay child support of $207 per month and arrearages in the amount of $2,000. The judgment was subsequently amended to establish a more specific visitation schedule and to increase the child support award.

[¶ 3] Anderson is 29 years old and employed as a foreman supervisor for a roofing company. He is also employed with the North Dakota National Guard. Anderson is married and resides in Fargo with his wife Kim, and their daughter, Olivia. Resler is 28 years old and is employed full-time at Meritcare Hospital in Fargo. She is unmarried and resides with her parents in Davenport. She has a son but she is not married to the boy’s father, and neither the boy nor his father are parties to these proceedings.

[¶ 4] In October 1998, Anderson filed several motions requesting the court to find Resler in contempt for denial of visitation and requesting the court to change custody of their daughter from Resler to Anderson. Anderson also requested the court to appoint a guardian ad litem to represent the child’s best interests, and the court appointed Dee Larson as guardian ad litem for that purpose. On December 7, 1998, the court entered a temporary order directing the guardian ad litem to conduct a custody study, directing visitations to occur through a local visitation program called Rainbow Bridge, and ordering the parties to “cooperate with the scheduling and requirements of Rainbow Bridge.” The court directed the parties to neither “undermine the other parent or speak poorly of the other parent in front of the child.” The court delayed a ruling on the motions regarding contempt and change of custody until the guardian ad litem’s report was completed.

[¶ 5] On April 12,1999, the court entered an order holding Resler in contempt of court, predicated upon the following findings of fact:

[T]here is no evidence of abuse or neglect regarding [the child] that would give reason for denial of visitation.
■[Resler] was to cooperate with scheduling and the use of Rainbow Bridge, and it was her direct course of conduct at Rainbow Bridge and her abusive behavior that caused the termination of services from Rainbow Bridge, in direct violation of this Court’s Order.
[Resler] has also failed to provide reasonable telephone contact. In fact, she put a block on her phone and there was a block placed on the phone of her parents.

The court ordered Resler incarcerated in the Cass County jail for 30 days for her contempt of the court’s order and informed Resler she could purge herself and avoid the incarceration by strict compliance with the court’s order and by allowing visitation. The court ordered facilitation of visitation by the Fargo Police Department, directing Resler to leave the child with the police at 5:50 p.m. and Anderson to pick up the child at 6:00 p.m. on visitation dates.

[¶ 6] A trial was held in June 1999 on the change-of-custody request, after which the trial court made the following relevant findings:

[T]he minor child ... appears to be basically a normal happy child having formed strong bonds of attachment for both parents.
[TJhere exists between the parents and minor child love, affection, and emotional ties.
[T]he parents have the capacity and disposition to give the child love, affection, and guidance and to continue the education of the child.
[T]he parents have the disposition to provide the child with food, clothing, medical care, and ... other material needs.
[T]he behavior and attitudes of [Resler] make the minor child’s continued healthy relationship with [Anderson] difficult if not unlikely.
[Resler] during the course of the last two years has engaged in conduct either intentionally or subconsciously that [has] totally frustrated the visitation rights of [Anderson],
[Resler] throughout the course of these proceedings has accused [Anderson] of intoxication, injury to the child while in his custody, inappropriate and offensive comments of a sexual nature, letters written explicitly describing having sex with [Resler], telephone calls with intent to harass, and threats of physical abuse, none of which allegations have in anyway been substantiated or corroborated.... [Resler] has in particular made the exchange of the child for visitation purposes so difficult that recent exchanges for visitation purposes have occurred at the Fargo Police Department and has made telephone contact concerning visitation an impossibility.
[I]n spite of attempted remedial measures employed both by the parties and the Court visitation continues to be frustrated by [Resler’s] conduct.
This Court is unable at this stage of these proceedings to fashion a visitation schedule on behalf of [Anderson] that would assure peaceful exchanges and the visitation rights of [Anderson],
There is a significant need for [the child] to have a continued healthy relationship with [Anderson], which [Resler] does not or will not recognize.
[Resler] has been very uncooperative, not only with the guardian ad litem, but with the Andersons, this Court and other service agencies.... Resler’s un-cooperativeness also goes to Rainbow Bridge, the visitation exchange center, where she sabotaged their efforts in having peaceful visitation exchanges by combative and angry behavior which caused the parties to be terminated from services from Rainbow Bridge Exchange Center in March of 1999. The Court tried to fashion a clear, specific and fair visitation schedule without success. The Court warned [Resler] that continued visitation problems could mean a change of custody or jail. The warning went unheeded.

Based upon these findings of fact, the trial court made the following conclusions:

[T]here has been a significant change in the circumstances of the parents and the minor child to compel in the child’s best interest a change of custody.
[Without a change of custody of the minor child of the parties, the continuity of the parent/child relationship between [Anderson] and the minor child is unlikely.
[A] change of custody would not have a significant negative impact upon the child and would be in the best interest of the child.

[¶ 7] The court entered an amended judgment awarding Anderson custody with substantial visitation for Resler. The court also ordered Resler to pay child support of $228.50 per month. Resler appealed.

II

[¶ 8] Resler has raised numerous issues on appeal. She first contends the trial court’s finding there has been a significant change of circumstances compelling a change of custody is clearly erroneous. In 1997, the legislature codified this Court’s two-step approach for deciding a change of custody request. See Holtz v. Holtz, 1999 ND 105, ¶¶9-10, 595 N.W.2d 1, citing Hill v. Weber, 1999 ND 74, ¶ 9, 592 N.W.2d 585. Section 14-09-06.6(6), N.D.C.C., provides:

6. The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.

Under this codification the court, in deciding whether to change custody, must consider whether there has been a significant change of circumstances since the original custody decree, and, if so, whether the change requires the court to change custody to serve the best interest of the child. Holtz, at ¶ 10. The party seeking modification of a custody order bears the burden of showing a change of custody is required, and the trial court’s decision on the issue is a finding of fact subject to the clearly erroneous standard of review. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 16, 603 N.W.2d 896. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if it is clear to the reviewing court that a mistake has been made. Id.

[¶ 9] In Blotske v. Leidholm, 487 N.W.2d 607, 609 (N.D.1992), this Court reversed a trial court’s decision to change custody of the parties’ daughter from her mother to her father, emphasizing there is an aversion to changing the custody of a happy child who has been living with one parent for a substantial time. When the request for a change of custody is primarily predicated upon the custodial parent’s frustration of the noncustodial parent’s visitation rights, the court must act with restraint and caution:

Visitation between a child and her noncustodial parent is presumed to be in the best interests of the child. Visitation is not only a privilege of the noncustodial parent, but also a right of the child. Only when visitation “is likely to endanger the child’s physical or emotional health,” may it be withheld.
Having recognized and acknowledged the importance of the noncustodial parent’s visitation privilege, we have also emphasized that frustration of visitation does not alone constitute a sufficient change in circumstances to warrant a change in custody. Before visitation problems justify changing custody, there must be a finding that the visitation problems had worked against the child’s best interests. In this case, while the district court found that [the mother’s] efforts to frustrate visitation, in effect, deprived [the child] of contact with loving family members, that deprivation is better remedied at first by resort to a more rigid visitation schedule, rather than a change of custody.

Blotske, at 610 (citations omitted).

[¶ 10] In Hendrickson v. Hendrickson, 1999 ND 37, ¶ 13, 590 N.W.2d 220, this Court again recognized a change of custody is a drastic measure in resolving visitation conflicts:

Although, we recognize methods other than a change of custody should be used initially to remedy a parent’s misbehavior, we also recognize that, after exhausting other remedies, a change in custody may be the only method to correct the damage of a particularly stubborn and defiant custodial parent. If the alternative remedies fail, the district court should consider a change of custody-

(Citation omitted.) In upholding a change of custody to the father where the mother had exhibited a persistent and willful interference with the father’s visitation rights and had attempted to alienate the children from the father, this Court in Hendrickson v. Hendrickson, 2000 ND 1, ¶ 18, 603 N.W.2d 896, reiterated and further explained the process for deciding a change of custody request where frustration of visitation is the primary allegation of wrongdoing:

In Blotske v. Leidholm, we stated “frustration of visitation does not alone constitute a sufficient change in circumstances to warrant a change in custody,” and a court should first resort to a more rigid visitation schedule, rather than change custody. 487 N.W.2d 607, 610 (N.D.1992). However, we also explained visitation problems may justify a change in custody when a court finds such problems have worked against a child’s best interests. Id. In addition, in Hendrick-son II, we stated that, though other methods should be used initially to remedy misbehavior by a parent, “after exhausting other remedies, a change in custody may be the only method to correct the damage of a particularly stubborn and defiant custodial parent.” 1999 ND 37, ¶ 13, 590 N.W.2d 220. Finally, we note the Legislature has expressly recognized frustration of visitation may require a change of custody. Under N.D.C.C. § 14-09-06.6(5), a trial court may not change custody within two years after the date of entry of a custody order. This time limit does not apply, however, if the trial court finds both that a modification is necessary to serve the best interest of the child and also that there has been a “persistent and willful denial or interference with visitation.” N.D.C.C. § 14-09-06.6(5)(a).

[¶ 11] In a change of custody proceeding, the best interests of the child must be measured against the backdrop of the stability of the child’s relationship with the custodial parent. Blotske, 487 N.W.2d at 610. The important factor in weighing stability is the stability of the child’s relationship with the custodial parent. Id. at 610-11. However, notwithstanding a happy normal child with strong bonds of attachment to the custodial parent, egregious violations of specific court ordered visitation, evidence of an intransigent attitude against visitation rights and alienating behavior can weigh against the child’s best interests.

[¶ 12] In this case, the trial court found Resler had, for the past two years, totally frustrated Anderson’s visitation rights with their daughter. The trial court found Resler simply “will not recognize” that Anderson and the child have a right to a father and daughter relationship. The record evidence shows Resler has repeatedly denied visitation privileges to Anderson during these formative years of the child’s life. Resler has told others her specific intent is to terminate Anderson’s rights as a parent to the girl. There is also evidence Resler has attempted to alienate the child’s affection for Anderson. During more than one phone conversation between the girl and Anderson, she was coached to say such things as, “I don’t like you anymore,”' “you are a bad daddy,” and “pay your support.”

[¶ 13] The court attempted various remedies to assure visitation, but to no avail. Resler was so uncooperative with the Rainbow Bridge visitation exchange program that the director terminated those services. The record shows Resler’s intent in not cooperating was to get “kicked out” of the program. Resler’s objective in avoiding and denying visitation has been so focused that, against specific warnings by the court, she violated the court’s visitation orders and, as a result, was sentenced to 30 days in jail for contempt. The court also tried visitation exchanges at the Fargo Police Department with drop off and pick up to occur 10 minutes apart so the parties would not have to meet for the exchanges. For reasons not entirely clear in the record, this attempt also failed.

[¶ 14] After working to find a solution, the trial court concluded that because Res-ler’s objective was to prevent Anderson from having a relationship with the child there was no remedy or course of action which would guarantee that relationship if Resler remained the custodial parent. The court attempted to resolve Resler’s frustration of Anderson’s visitation rights by methods other than changing custody. When those methods failed, because of Resler’s actions, the court ordered a custody change.

[¶ 15] We conclude the trial court’s decision is not clearly erroneous and we are not left with a definite and firm conviction that the trial court made a mistake.

Ill

[¶ 16] Resler asserts the evidence was clearly insufficient to sustain the court’s findings that Resler had a personality disorder that had a negative impact on the child’s life. The trial court did specifically find Resler had been diagnosed with a personality disorder, but the court made no finding that the disorder has had a negative impact on the child’s life. In fact, the court specifically found both parents have the capacity and disposition to give the child love, affection, and guidance as well as the necessities of life, such as food, clothing, and medical care.

[¶ 17] Jan Witte-Bakken, Ph.D., a licensed psychologist, with the Lakeland Mental Health Center in Moorhead, Minnesota, conducted a psychological evaluation of Resler and concluded in her report that Resler has a significant personality disorder. We conclude the record evidence supports the trial court’s findings on this matter and they are not clearly erroneous.

IV

[¶ 18] Resler asserts the trial court erred in limiting Resler’s introduction of evidence to show that Resler and her daughter have a good parent-child relationship and that Resler is a good mother. The trial court limited Resler’s introduction of evidence on this issue on the ground that it was irrelevant and immaterial because Resler’s parenting and relationship with the child were not at issue and because the trial court was prepared to find that Resler is a good mother and has a good relationship with the child. The trial court’s admission or exclusion of evidence on relevance grounds will not be overturned on appeal unless the trial court has abused its discretion. State v. Osier, 1999 ND 28, ¶5, 590 N.W.2d 205. The trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process. Id. The trial court’s change-of-custody decision is based upon Resler’s persistent denial of visitation privileges between the child and her father and Res-ler’s refusal to recognize Anderson and the child’s right, as father and daughter, to have a relationship. The court found Res-ler has good parenting skills and has a good relationship with her daughter. We, therefore, conclude the trial court did not abuse its discretion in limiting the evidence on this issue upon relevancy grounds.

V

[¶ 19] Resler asserts the trial court erred in giving too much weight to the guardian ad litem’s report. The guardian ad litem recommended the court change custody from Resler to Anderson and provide liberal visitation for Resler. The trial court noted this recommendation in its findings of fact. A guardian ad litem’s opinion is appropriate to consider in determining custody, and the trial court has discretion to assign the weight given to such evidence. Kjelland v. Kjelland, 2000 ND 86, ¶ 13, 609 N.W.2d 100. There is a presumption the trial court gives proper consideration to the testimony presented by a guardian ad litem. Olson v. Olson, 2000 ND 120, ¶ 7, 611 N.W.2d 892. We conclude Resler has failed to overcome the presumption the trial court properly weighed and considered the testimony and recommendation of the guardian ad litem.

VI

[¶ 20] Resler asserts the trial court erred in changing the child’s name from Resler to Anderson without following the proper statutory procedure under N.D.C.C. § 32-28-02. We can find no direction in the trial court’s order for judgment or in the third amended judgment changing the child’s name from Resler to Anderson. Anderson agrees on appeal that the trial court did not change the child’s name from Resler to Anderson. We conclude Resler’s argument is without merit.

VII

[¶ 21] Resler also asserts the trial court erred in refusing to rule on child support and, instead, referring the matter to the Child Support Enforcement Unit. In its judgment the trial court specifically ordered Resler to pay child support of $228.50 per month beginning in July 1999 and continuing until the child’s 18th birthday or graduation from high school, whichever occurs later. Following entry of the court’s judgment, Resler requested a modification of the child support award. The trial court concluded Resler presented insufficient evidence ,to justify modification under the child support guidelines, and the court denied the motion. We find no error in the trial court’s rulings on this issue.

[¶ 22] The judgment of the trial court is in all respects affirmed.

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


author: VANDE WALLE, Chief Justice.

text:
    2000 ND 186
    CITY OF JAMESTOWN, Plaintiff and Appellee, v. John Timothy DARDIS II, Defendant and Appellant.
    Nos. 20000109, 20000110.
    Supreme Court of North Dakota.
    Oct. 26, 2000.

      Charles J. Gilje, City Prosecutor, Jamestown, for plaintiff and appellee.
    Lawrence P. Kropp, Kropp Law Offices, Jamestown, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] John Timothy Dardis II appealed his convictions for minor in possession/consumption of alcohol and disorderly conduct. Dardis entered a conditional plea of guilty, with right to appeal the denial of his motion to suppress evidence seized as a result of entry into his home. We reverse and remand because the police officer entered Dardis’s home without a warrant or a valid exception to the warrant requirement, in violation of the Fourth Amendment, and the evidence should have been suppressed.

[¶ 2] On the evening of January 29,1999, at about 11:30 p.m., the Jamestown Police Department responded to a call to investigate a loud party at an apartment in Jamestown. Officer Nagel was the first to arrive. He noticed an unusual number of cars parked nearby, as well as loud music and talking coming from the top floor apartment. Officer Nagel climbed the stairs to the upstairs apartment and knocked on the door. He heard people warning “It’s the cops. The cops are here.” By this time there were three officers around the apartment.

[¶ 3] Officer Nagel continued to knock and could hear people scrambling around inside, he also heard people making comments, and what he believed to be a window breaking. He directed another officer to go and make sure no one was jumping out of the windows. By this time a fourth officer had arrived. Officer Nagel requested assistance from the county sheriff s department and continued to knock on the apartment door.

[¶ 4] A young woman opened the door. Officer Nagel testified he could smell the odor of alcoholic beverage coming from inside the apartment and could see a number of young people inside. From the door, Officer Nagel could see a short hallway with three open doors to adjoining rooms. There is conflict in the testimony about whether or not Officer Nagel stepped into the apartment at this point. The trial court found the officer walked into the apartment once the door was opened. Officer Nagel asked the young woman who opened the door if she lived in the apartment, she said she did not. Officer Nagel asked if she knew who did live there and said he needed to talk to the person who lived in the apartment.' The legal resident of the apartment, John Dar-dis, came out of the bedroom.

[¶ 5] Officer Nagel told Dardis he' could smell the odor of an alcoholic beverage and asked if anyone in the apartment was 21 years old or older, Dardis shook his head to indicate no. Dardis walked toward Officer Nagel and Officer Nagel established Dardis’s breath smelled of alcohol. Officer Nagel asked for some identification from Dardis, who turned to go to another room and then turned back to answer loudly that he did not have any identification. Officer Nagel observed Dardis’s eyes were heavily bloodshot.

[¶ 6] At this point Officer Nagel testified Dardis became very obnoxious and disorderly. Dardis turned and walked away from Officer Nagel, who told Dardis to stop and come back. Officer Nagel repeated this twice and Dardis continued walking away. A young man grabbed hold of Dardis in an attempt to calm Dardis down, which Officer Nagel said resulted in a shoving match. Officer Nagel called for assistance. Dardis broke away from the young man and continued to walk away. At this point Officer Nagel stepped further into the apartment and grabbed hold of Dardis to stop him from walking away. Dardis grabbed hold of Officer Nagel’s wrist. Officer Nagel told Dardis to let go of his hand, which he did. Officer Nagel then arrested Dardis for consumption of alcohol and disorderly conduct.

[¶ 7] Our standard of review of a district court’s denial of a suppression motion is well-established. We defer to a district court’s findings of fact in the disposition of a motion to suppress, resolving conflicts in testimony in favor of affir-mance, as we recognize the district court is in a superior position to assess credibility of witnesses and weigh the evidence. State v. Wanzek, 1999 ND 163, ¶ 5, 598 N.W.2d 811. In general, we will not reverse a district court’s decision to deny a motion to suppress 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. However, while we defer to the district court’s findings of fact, questions of law are fully reviewable. State v. Overby, 1999 ND 47, ¶ 5, 590 N.W.2d 703. Additionally, ’ whether findings of fact meet a legal standard is a question of law. State v. Kitchen, 1997 ND 241, ¶ 12, 572 N.W.2d 106.

[¶ 8] The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, as well as Article I, Section 8, of the North Dakota Constitution prohibit unreasonable searches and seizures. State v. Wanzek, 1999 ND 163, ¶ 7, 598 N.W.2d 811(citing State v. Lanctot, 1998 ND 216, ¶ 5, 587 N.W.2d 568). A physical entry into a home is a chief evil against which the Fourth Amendment protects. State v. DeCoteau, 1999 ND 77, ¶8, 592 N.W.2d 579 (citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). The United States Supreme Court stated in Payton that warrantless searches and seizures in a home are presumptively unreasonable. 445 U.S. at 586, 100 S.Ct. 1371. See Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990); Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)(confirming the Fourth Amendment provides great protection for persons inside their home). The United States Supreme Court also determined: “[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton, 445 U.S. at 590, 100 S.Ct. 1371.

[¶ 9] Warrantless searches are unreasonable unless they are within one of the few recognized exceptions to the requirement for a search warrant. Wanzek, 1999 ND 163, ¶ 7, 598 N.W.2d 811. The burden is on the government to show a warrantless search is within an exception to the warrant requirement. City of Fargo v. Lee, 1998 ND 126, ¶ 8, 580 N.W.2d 580 (citing State v. Avila, 1997 ND 142, ¶ 16, 566 N.W.2d 410). Consent is one of the exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); DeCoteau, 1999 ND 77, ¶ 9, 592 N.W.2d 579; Lee, 1998 ND 126, f 9, 580 N.W.2d 580 (citing Avila, 1997 ND 142, ¶ 16, 566 N.W.2d 410).

[¶ 10] Although the trial court found Officer Nagel did not remain at the door of the apartment but rather walked into the apartment when the door was opened, the State argues he had the implicit consent to do so from the young woman who opened the door. The trial court acknowledged the State is required to show affirmative conduct that is consistent with the giving of consent. The trial court found the young woman who opened the door consented to Officer Nagel’s entry into the home by her act of opening the door widely.

[¶ 11] We held in DeCoteau “to sustain a finding of consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions to stop the police from entering.” 1999 ND 77, ¶ 11, 592 N.W.2d 579 (quoting Avila, 1997 ND 142, ¶ 17, 566 N.W.2d 410). See also United States v. Jaras, 86 F.3d 383, 390 (5th Cir.l996)(hold-ing consent cannot reasonably be implied from silence and failure to object when police do not expressly or impliedly request consent); United States v. Shaibu, 920 F.2d 1423, 1427 (9th Cir.1990)(deciding absent specific request by police for permission to enter a home, government may not show consent to enter from defendant’s failure to object to entry because “[t]o do so would be to justify entry by consent and consent by entry”); United States v. Wenzel, 485 F.Supp. 481, 483 (D.Minn.1980)(holding failure to order uninvited officer to leave apartment is “hardly enough to establish consent”); 1 William E. Ringel, Searches & Seizures, Arrests and Confessions § 9.3 (2d ed.2000).

[¶ 12] In DeCoteau, the officers responded to an anonymous report of domestic disturbance and followed the woman, who was standing in the yard when they arrived, into the trailer home. 1999 ND 77, ¶¶ 2 4, 592 N.W.2d 579. We affirmed the trial court’s finding “[h]er act of opening the door and allowing the police to follow her into the home was not consent and was not enough to obviate the warrant requirement for entry into a person’s home.” Id. at ¶ 12. The trial court distinguished De-Coteau and found significant differences between DeCoteau and this case because here the young woman was a college student, knew the police were outside the door, and knew they wanted to come inside. On this basis, the trial court found by opening the door and allowing Officer Nagel inside, it was clear the young woman “was doing more than merely acquiescing to the police by letting them follow her into an apartment.”

[¶ 13] The trial court also relied on People v. Carpenter, 120 Mich.App. 574, 327 N.W.2d 523 (1982) to support the finding that opening the door is adequate affirmative conduct to give consent to entry. In Carpenter two suspects were in the apartment, aware of the presence of the police outside the door. 327 N.W.2d at 526. The police knocked on the door, one of the suspects opened the door a crack, saw it was the police, then closed the door to remove the chain and opened the door completely. Id. The Michigan court found this action constituted consent to entry. Id. In this case the young woman did not open the door a crack initially and then remove a chain to open the door completely, an activity the Michigan court found to be adequate affirmative conduct for tacit consent to entry; rather she simply opened the door.

[¶ 14] As we stated in Avila, “[c]on-trary to the trial court’s apparent reasoning, to sustain a finding of consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions to stop the police from entering.” 1997 ND 142, ¶ 17, 566 N.W.2d 410. Absent some finding of a more specific act or conduct of the young woman which indicated affirmative consent, we cannot conclude she did anything more by opening the door. There is no record or finding of any affirmative act sufficient to establish consent to Officer Nagel’s entry into the home. We have not held, and we are unaware of a holding in another jurisdiction, that opening the door with the knowledge a police officer is on the threshold, is an invitation to enter the home.

[¶ 15] Exigent circumstances provide another exception to the warrant requirement. The United States Supreme Court has determined that before agents of the government may “invade the sanctity of the home” the government bears the burden to demonstrate exigent circumstances exist that overcome the presumption of unreasonableness of a warrantless home entry. Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). We recently confirmed our definition of exigent circumstances as “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” DeCoteau, 1999 ND 77, ¶ 15, 592 N.W.2d 579(quoting State v. Nagel, 308 N.W.2d 539, 543 (N.D.1981)).

[¶ 16] The trial court found even if Officer Nagel did not have consent to go beyond the doorway, he had probable cause and there were exigent circumstances that made it necessary for him to enter further into the apartment. The prosecution originally argued the smell of alcohol and admission by Dardis of being a minor constituted probable cause to believe a crime was being committed in Officer Nagel’s presence and justified his entry into the home. The trial court rejected this on the basis of Lee in which we held probable cause to believe minors were illegally consuming alcohol was a relatively minor infraction and did not create exigent circumstances to justify a warrantless entry into a home. 1998 ND 126, ¶ 13, 580 N.W.2d 580 (relying on Welsh, 466 U.S. at 753, 104 S.Ct. 2091, “application of the exigent circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense ... has been committed.”).

[¶ 17] However, the trial court did find the exigent circumstances of protecting the public’s safety or helping someone in distress existed. The situation was tense because Dardis appeared to be intoxicated and made an aggressive move against the young man who had grabbed him. The court relied on the fact Officer Nagel was only a few feet away from this commotion and could easily diffuse the situation to justify the exception. Therefore, despite the fact this was not a life threatening emergency, the court decided it would be unreasonable to forbid a peace officer to break up a fight occurring right in front of him.

[¶ 18] Key to the court’s justification for this further entry into the apartment is the finding that Officer Nagel had the initial consent to be inside the apartment, only a few feet away from the interaction between Dardis and the other young man. Significantly, the interaction was not independent of Officer Nagel’s presence in the apartment. Rather, the evidence reflects the altercation occurred because the young man grabbed Dardis to calm him down after the confrontation with the officer. Law enforcement’s inappropriate actions, even if unintentional, cannot ordinarily create the exigent circumstances to justify the entry for the purpose of the suppression motion.

[¶ 19] At the time of Officer Na-gel’s entry into the home, there was no consent nor did any exigent circumstances exist. Absent one of these exceptions to the warrant requirement at the time of the entry, evidence gained in violation of the Fourth Amendment’s protections against unreasonable searches and seizures is inadmissible under the exclusionary rule and must be suppressed. State v. Kitchen, 1997 ND 241, ¶ 9, 572 N.W.2d 106 (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)).

[¶ 20] We conclude the district court erred in denying Dardis’s motion to suppress evidence. The convictions of the district court are reversed and the cases are remanded to allow Dardis to withdraw his guilty pleas.

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


text:
    2000 ND 190
    Rachel M. KAUTZMAN, n/k/a Rachel M. Dietz, Plaintiff and Appellee, v. Robert A. KAUTZMAN, Defendant and Appellant.
    No. 20000083.
    Supreme Court of North Dakota.
    Oct. 30, 2000.
    As Amended on Denial of Rehearing, Dec. 29, 2000.

      Steven A. Johnson, Vogel, Weir, Hunke & McCormick, Ltd., Fargo, N.D., for plaintiff and appellee.
    Jonathan T. Garaas, Garaas Law Firm, Fargo, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Robert A. Kautzman appealed from a memorandum opinion rejecting his claim of exemptions from execution, and from an order confirming a sheriffs sale. We conclude the trial court did not err in rejecting Kautzman’s claim of exemptions and in confirming the sheriffs sale. We affirm.

I

[¶ 2] This is Kautzman’s fourth appeal stemming from a 1995 divorce action brought against him by Rachel M. Kautz-man, now known as Rachel M. Dietz. The original 1997 divorce decree awarded Dietz property valued at $850,160, awarded Kautzman property valued at $851,962, and ordered Kautzman to pay spousal support of $4,000 per month until December 2002, and $2,000 per month thereafter. In Kautzman v. Kautzman, 1998 ND 192, ¶¶ 26, 28, 585 N.W.2d 561, this Court affirmed in part, but concluded the trial court had incorrectly valued the parties’ construction company, KCI. We reversed and “remanded for a redetermination of the value of KCI and a redetermination of the property distribution in light of the revaluation of KCI, for consideration of an award of attorney fees to Rachel for Robert’s actions increasing the time spent on this dispute, and for a determination on Rachel’s request for attorney fees on appeal.” Id. at ¶ 38.

[¶ 3] On remand, the trial court increased the valuation of KCI by $280,859, and ordered Kautzman to pay Dietz an additional $140,429 as a property distribution. The court also awarded Dietz attorney fees of $50,000 because Kautzman substantially increased the cost of litigation, awarded Dietz $10,000 in attorney fees for the initial appeal, found Kautzman in contempt of court, entered money judgments against Kautzman, and denied Kautzman’s request to eliminate or reduce his spousal support obligation. Kautzman filed two appeals, raising numerous issues. Among the issues raised in those appeals were his challenge to the valuation of KCI and to the entry of money judgments against him in the amounts of $1,500 for household goods and personal effects, $50,000 for money withdrawn from a bank account awarded to Dietz, $322,139.18 for unpaid property distribution payments and interest, $41,893.88 for past-due spousal support, and $60,000 for attorney fees. In Kautzman v. Kautzman, 2000 ND 116, ¶¶ 6-8, 611 N.W.2d 883, we affirmed the court’s decisions and rejected his arguments about the trial court’s revaluation of KCI. We summarily disposed of the bulk of Kautzman’s other arguments by affirming under N.D.R.App.P. 35.1(a)(2) and (4). Id. at ¶ 10.

[¶ 4] In November 1999, writs of execution were issued in Cass County, North Dakota, and Otter Tail County, Minnesota, on the $322,139.18 money judgment for past-due property distribution payments. Dietz garnished an annuity, valued at $95,-249.13, Kautzman held with Minnesota Mutual Life Insurance Company in North Dakota. The sheriff levied on the annuity and Kautzman’s home in West Fargo. Kautzman filed an objection to the levy on the annuity and filed a claim of exemptions, which were rejected by the trial court in January 2000.

[¶ 5] In the meantime, Kautzman and his brother formed a new corporation, Kautz-man Millwright, Inc., in December 1998. Kautzman received 10,000 shares of Kautz-man Millwright stock in exchange for KCI’s assets, and then sold his 10,000 shares to his brother for $35,000. In December 1999, Kautzman Millwright paid the $8,675.97 balance due on the mortgage for the West Fargo home, and received an assignment of the mortgage. Kautzman Millwright also paid two years of property taxes on the home. Kautzman then deeded the West Fargo home, valued by the trial court at $150,000, to Kautzman Millwright “in lieu of foreclosure.... ”

[¶ 6] The West Fargo home was sold at a sheriffs sale on February 3, 2000, to Dietz, who submitted the highest bid, $130,000. The trial court confirmed the sheriffs sale and set a redemption period of 30 days from the date of service of the order. This appeal followed.

II

[¶ 7] Kautzman raises numerous issues relating to the levy on the annuity and the sheriffs sale of the West Fargo home.

A

[¶ 8] Kautzman argues the trial court erred in ruling his annuity was not absolutely exempt from execution under N.D.C.C. §§ 26.1-33-36 and 28-22-03.1(3).

[¶ 9] The trial court entered the $322,139.18 money judgment against Kautzman because he failed to make the property distribution payments required by the divorce decree. We affirmed this money judgment in Kautzman, 2000 ND 116, ¶¶ 4, 10, 611 N.W.2d 883. Section 14-05-25.1, N.D.C.C., provides:

Money judgment to secure division of property enforceable by contempt proceedings — Exemptions from process not available. Failure to comply with the provisions of a divorce decree relating to distribution of the property of the parties constitutes contempt of court. A party may also execute on a money judgment, and the obligor is entitled only to the absolute exemptions ■ from process set forth in section 28-22-02.

The absolute exemptions under N.D.C.C. § 28-22-02 do not include life insurance policies or annuities.

[¶ 10] Kautzman’s reliance on Vitko v. Vitko, 524 N.W.2d 102 (N.D.1994), and Seablom v. Seablom, 348 N.W.2d 920 (N.D.1984), in arguing the exemptions under N.D.C.C. §§ 26.1-33-36 and 28-22-03.1(3) remain available to him in this case is misplaced. Not only is Vitko not in point, but it works against his position. In Vitko, 524 N.W.2d at 103, we rejected the contention exemption statutes govern the distribution of marital property in a divorce. In Seablom, 348 N.W.2d at 925, this Court held civil contempt is an improper remedy for the enforcement of a distribution of property. This Court concluded a husband could claim the property he received from the divorce distribution as exempt under N.D.C.C. ch. 28-22 from enforcement of the divorce judgment, but opined:

Although this case may involve obvious injustice, we recognize that the Legislature, not this court, is the proper body to amend the statutes governing this matter. It is for the Legislature to specify the exemptions which should be applicable in proceedings to enforce the provisions of property division in a divorce judgment.

Seablom, at 925-26.

[¶ 11] In 1985, during the next legislative session following our Seablom decision, the Legislature enacted N.D.C.C. § 14-05-25.1 “to correct the law because of a decision by the [S]upreme [C]ourt.” Hearing on H.B. H86 Before the Senate Judiciary Committee, 49th N.D. Leg. Sess. (February 19, 1985) (testimony of Senator Wayne Stenehjem). That decision was obviously Seablom, and to the extent N.D.C.C. § 14-05-25.1 conflicts with it, Seablom has been superseded by the statute. Kautzman’s reliance on the exemptions in N.D.C.C. §§ 26.1-33-36 and 28-22-03.1(3) is therefore without merit. See generally Mees v. Ereth, 492 N.W.2d 72, 74-76 (N.D.1992).

B

[¶ 12] The divorce judgment specifically granted Dietz liens on the parties’ Minnesota lake cabin, the West Fargo home, and Kautzman’s stock and interest in KCI, to secure the property distribution payments, and Kautzman contends Dietz was, therefore, limited to foreclosing those liens in enforcing the $322,139.18 money judgment.

[¶ 13] Nothing in the divorce judgment or the trial court’s subsequent orders states Dietz must look solely to those three items to enforce the property distribution payments. Moreover, nothing in N.D.C.C. § 14-05-25.1 restricts enforcement of a money judgment to particular property. We conclude Dietz was not limited to the three items of property mentioned in the divorce decree in enforcing the money judgment.

C

[¶ 14] Kautzman argues Dietz’s lien in the West Fargo home granted by the trial court to secure the property distribution payments should be viewed as a mortgage lien, thus mandating compliance with the mortgage foreclosure provisions of N.D.C.C. ch. 32-19. The divorce decree specified, “Rachel shall have liens on the following property, until such time as Robert has fully satisfied his obligation [to make monetary payments]: . . . the parties’ homestead, [in West Fargo].” The decree also provided, “[s]ubject to the provisions herein, Robert shall be entitled to the West Fargo home;. ..”

[¶ 15] The specific lien granted by the trial court in the divorce judgment was in the nature of an equitable lien under N.D.C.C. § 14-05-25, and a “trial court may enforce an equitable lien by whatever means it deems appropriate to do justice between the parties.” Martian v. Martian, 399 N.W.2d 849, 854 (N.D.1987). See also Moen v. Moen, 519 N.W.2d 10, 12 (N.D.1994). Kautzman was not statutorily entitled to a one-year redemption period, and, under the circumstances, we conclude the trial court did not abuse its discretion in granting a 30-day redemption period.

D

[¶ 16] Kautzman claims he was entitled to a homestead exemption under N.D.C.C. ch. 47-18. However, as we point out above, the trial court granted Dietz an equitable lein on the West Fargo home.

[¶ 17] A trial court has broad equitable powers under N.D.C.C. § 14-05-25 to fashion a “remedy applicable to the case,” and a court is justified in implying a lien as a result of wrongful conduct by a spouse which results in a breach of an obligation adjudicated in a divorce decree. See Strankowski v. Strankowski, 447 N.W.2d 323, 325 (N.D.1989). The equitable lien granted to Dietz on the West Fargo home does not specifically preserve Kautzman’s homestead exemption. Rather, the distribution of the homestead to Kautzman was subject to the provisions in the judgment. In view of Kautzman’s wrongful conduct and the inequity which would result if Kautzman were allowed to claim the homestead exemption, the trial court did not err in refusing to make the homestead exemption available to him. See Martian, 399 N.W.2d at 854. Furthermore, Dietz’s equitable lien was not extinguished by Kautzman’s transfer of the West Fargo home to Kautzman Millwright. See generally, Moen, 519 N.W.2d at 13-14.

[¶ 18] We conclude Kautzman’s claim of a homestead exemption was properly rejected by the trial court.

E

[¶ 19] Kautzman contends the sheriffs sale is void because he was not “mailed notice” of the sale.

[¶ 20] In Principal Residential Mortg., Inc. v. Nash, 2000 ND 21, ¶17, 606 N.W.2d 120, we held notice of a sheriffs sale in a foreclosure action must be personally served on the debtor. Personal notice of the time and place of sale enables the debtor to attend and ascertain whether the sale is being properly conducted in accordance with statutory requirements, and further enables the debtor to bid on the property if the debtor desires. Id. at ¶ 12. In Nash, at ¶ 4, the debtor claimed she did not learn of the sheriffs sale until five months after it occurred.

[¶ 21] In this case, Kautzman was personally served with the notice of sale on January 26, 2000, but in his capacity as president of Kautzman Millwright. Kautz-man’s attorneys filed objections to the sale and appeared at the sale on his behalf. If a party cannot demonstrate prejudice resulting from an allegedly defective notice, there is generally no right to redress. See, e.g., Wahl v. Morton County Social Services, 1998 ND 48, ¶ 8, 574 N.W.2d 859; State v. Hass, 264 N.W.2d 464, 467-68 (N.D.1978). Kautzman has failed to establish prejudice from not being personally served with the notice of sheriffs sale in his individual capacity.

Ill

[¶ 22] We have considered Kautzman’s other arguments and conclude they are without merit. The memorandum opinion and order confirming the sheriffs sale are affirmed.

[¶ 23] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., RICHARD W. GROSZ, D.J., concur.

[¶ 24] The Honorable RICHARD W. GROSZ, D.J., sitting in place of KAPSNER, J., disqualified.

      . Generally, appeals cannot be taken from a memorandum opinion, but an appeal may be taken from a final order affecting a substantial right. See In Interest of A.S., 1998 ND 181, ¶ 1 n. 1, 584 N.W.2d 853; N.D.C.C. § 28-27-02. We treat this memorandum opinion as a final judgment because it was clearly intended to be final. See Austin v. Towne, 1997 ND 59, ¶ 7, 560 N.W.2d 895.


author: NEUMANN, Justice.

text:
    2000 ND 192
    CENTER MUTUAL INSURANCE COMPANY, Plaintiff and Appellee, v. Larry THOMPSON, Defendant and Appellant.
    No. 20000118.
    Supreme Court of North Dakota.
    Oct. 31, 2000.

      Jason R. Vendsel, McGee, Hankla, Backes & Dobrovolny, Minot, N.D., for plaintiff and appellee.
    Ralph A. Vinje, Vinje Law Firm, Bismarck, N.D., for defendant and appellant.
   NEUMANN, Justice.

[¶ 1] Larry Thompson appealed a declaratory judgment ruling Center Mutual Insurance Company (“Center Mutual”) had no duty to defend or indemnify him in a civil action brought against him by his son, John Thompson. We affirm.

[¶ 2] On January 11, 1992, John Thompson, an eighteen-year-old high school senior, was injured when his arms became entangled in a power takeoff shaft for an auger on his family’s farm, where he lived with his parents, Larry and Karen Thompson. At the time of John’s injury, his parents had a farm owner’s insurance policy with Center Mutual that included a Farm Employer’s Liability Coverage endorsement.

[¶ 3] John Thompson sued Larry Thompson in 1997 to recover damages resulting from his 1992 injury. Center Mutual sued Larry Thompson for a declaratory judgment ruling it had no duty to defend or indemnify him in the suit brought against him by John. In its complaint, Center Mutual alleged it denied coverage because John Thompson “was a resident of the Larry Thompson household,” and his claims were excluded by the following exclusion:

Coverage L does not apply to:

1. bodily injury to you, and if residents of your household, your relatives, and persons under the age of 21 in your care....

In an October 22, 1997, letter to John Thompson’s attorney, Center Mutual said:

As you know, Center Mutual has filed a declaratory action pertaining to Larry Thompson’s insurance policy. It appears clear that his insurance policy does not provide coverage for resident relatives or employees, and as a result, there is no liability coverage for John Thompson. However, if you are aware of any facts which would affect coverage under Larry Thompson’s policy, please inform us in order that we may reevaluate our position and settlement posture.

On December 18, 1997, Larry Thompson answered Center Mutual’s complaint, denying the claims were excluded from coverage, and asserting the policy was ambiguous and should be interpreted to provide coverage. Larry also counterclaimed against Center Mutual for $3,000,000, alleging he had agreed to entry of judgment against him and in favor of John Thompson for $3,000,000.

[¶ 4] The liability coverage section of the Center Mutual farm owner’s policy defines a farm employee as “an employee of an insured whose duties are in connection with the farming operations of the insured.” It provides for Coverage L — Personal Liability, and Coverage M — Medical Payments to Others. In the exclusions to coverages L & M, it provides:

This policy does not apply to:

12. bodily injury to a farm employee of an insured if it occurs in the course of employment....

For Coverage L, it also excludes:

1. bodily injury to you, and if residents of your household, your relatives, and persons under the age of 21 in your care ...;

For Coverage M, it excludes bodily injury to “an insured or other person who resides on the insured premises, except a domestic employee.”

[¶ 5] The Farm Employer’s Liability Coverage endorsement to the farm owner’s policy does not specify any number of employees to be covered and does not indicate any farm employees not to be covered in spaces provided for such disclosures. It provides coverage:

Coverage L — Personal Liability and Coverage M — Medical Payments to Others are extended to apply to bodily injury to a, farm employee while performing duties in connection with the farming operations of an insured.

This coverage includes the following:

1. Coverages L and M apply to bodily injury to a person while performing duties as a farm employee if the bodily injury results;
b. From the ownership, maintenance, use, loading or unloading of a motorized vehicle ....

It provides the following exclusion:

4. Coverage under this endorsement does not apply to liability for bodily injury excluded under the Liability Coverage Section and not specifically covered under this endorsement.

[¶ 6] Center Mutual sought partial summary judgment that there was no coverage under the liability coverage section because John Thompson was a member of Larry Thompson’s family, living on the family farm, and excluded under the household resident exclusion. Larry Thompson moved for summary judgment on the ground John was an employee under the farm employer’s liability endorsement. The trial court denied both motions.

[¶ 7] After a trial, the trial court found John Thompson “was a ‘family member’ and a ‘resident relative’ of Larry and Karen Thompson’s as those words were used for the Center Mutual Farm Owner’s Policy in effect,” and “for purposes of coverage under the Farm Employer’s Liability Coverage of that Farm Owner’s Insurance Policy, John Thompson was not a farm employee on the date of his suffering the severe injuries on January 11, 1992.” The court concluded John Thompson was not an employee:

While he did work on the farm as a member of the family and did work that would be constituting farm work, he was not a farm employee nor was he an independent contractor. Rather, he was merely doing what his father expected ■ him to do which was do certain responsibilities as a member of the family growing up on the farm.

The court ordered a declaratory judgment ruling Center Mutual had no duty to defend or indemnify Larry Thompson, “since John Thompson was not a farm employee and was a ‘resident relative’ and ‘family member’ of Larry and Karen Thompson.” Larry Thompson appealed the judgment entered on April 10, 2000.

I

[¶ 8] Relying on General Accident Ins. Group v. Cirucci, 46 N.Y.2d 862, 414 N.Y.S.2d 612, 387 N.E.2d 223, 225 (1979), and D.E.M. v. Allickson, 555 N.W.2d 596 (N.D.1996), Larry Thompson contends Center Mutual waived “its right to challenge liability on the grounds that the endorsement does not apply,” because it initially denied coverage on the ground John Thompson was a resident relative of the Larry Thompson household.

[¶ 9] Generally, an insurer denying liability on specified grounds may not subsequently attempt to deny liability on different grounds. Allickson, 555 N.W.2d at 599. As we noted in Allickson, 555 N.W.2d at 600, Cirucci, 414 N.Y.S.2d 512, 387 N.E.2d at 225, explained the rationale for the rule:

Although an insurer may disclaim coverage for a valid reason ... the notice of disclaimer must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated. Absent such specific notice, a claimant might have difficulty assessing whether the insurer will be able to disclaim successfully. This uncertainty could prejudice the claimant’s ability to ultimately obtain recovery. In addition, the [insurer’s] responsibility to furnish notice of the specified ground on which the disclaimer is based is not unduly burdensome, the insurer being highly experienced and sophisticated in such matters.

In Allickson, 555 N.W.2d at 601, this Court held an insurer that failed to apprise its insured of its reliance upon a bodily injury provision when the insured was in a position to cure an alleged lack of notice, was estopped to raise the alleged lack of notice of a bodily injury claim as a defense.

[¶ 10] Larry Thompson argues “[i]t appears that under the holding in D.E.M. v. Allickson, Id., that Center Mutual cannot be allowed to argue that the endorsement does not apply to John.” However, that case was decided on the basis of es-toppel. “The crucial elements of estoppel in this context are the insurer’s stated reliance upon one ground for denying liability without stating additional known grounds, and resulting prejudice to the claimant.” Allickson, 555 N.W.2d at 601. Larry Thompson has not shown he was prejudiced by Center Mutual’s initial disclaimer of coverage under the resident relative exclusion and its later, additional, argument John Thompson was not an employee covered by the endorsement. We conclude Center Mutual was not estopped from asserting there was no coverage because John Thompson was not an employee of Larry Thompson.

II

[¶ 11] Larry Thompson asserts the Center Mutual insurance policy should be construed to provide coverage in accordance with his reasonable expectations. He argues “a policy holder’s reasonable expectations regarding the nature, scope and terms of his insurance coverage should be honored by the Courts even though a careful review of the policy language reveals a particular limitation or exclusion.” He asserts “[t]he Reasonable Expectations Doctrine has been adopted by the North Dakota Supreme Court,” and he contends “[i]t certainly is not unreasonable for Larry Thompson to expect that a farm employee’s liability endorsement would apply when his only farm employee was his son John.”

[¶ 12] In affirming a judgment against an insurer, two justices in Mills v. Agrichemical Aviation, Inc., 250 N.W.2d 663 (N.D.1977), relied, in part, on the doctrine of reasonable expectations. Three justices concurred specially, reaching the same result without relying on the doctrine of reasonable expectations. As we said in RLI Ins. Co. v. Heling, 520 N.W.2d 849, 854-55 (N.D.1994), “[t]he doctrine of reasonable expectations [] is an interpretive tool in the construction of contracts,” which “has yet to be accepted by a majority of this court.” Furthermore, Larry Thompson’s testimony showed he did not expect coverage of his children when he bought the insurance. We conclude the trial court properly determined “[t]he Reasonable Expectations Doctrine set forth by [Larry Thompson] in his brief is inapplicable in this case.”

III

[¶ 13] Larry Thompson contends the trial court was legally incorrect in concluding John Thompson was not a farm employee under the policy definition of a farm employee. He argues 1) the policy does not require a farm employee to be paid; 2) “[t]he trial judge appears to have adopted the definition of employee as somebody who was performing farm labor and was paid by cash, check or other means of monetary compensation;” and 3) “John Thompson was an employee, by definition of the policy, in that he engaged in duties in connection with the farming operations of the insured.”

[¶ 14] We recently addressed our review of a trial court’s interpretation of an insurance policy in DeCoteau v. Nodak Mut. Ins. Co., 2000 ND 3, ¶ 19, 603 N.W.2d 906:

The interpretation of an insurance policy is a question of law, fully reviewable on appeal. Close, 1998 ND 167, ¶ 12, 583 N.W.2d 794. We review a trial court’s interpretation of an insurance policy by independently examining and construing the policy. Id. We look first to the language of the policy as a whole, and if the language is clear on its face, there is no room for construction. See Thompson v. Nodak Mut. Ins. Co., 466 N.W.2d 115, 119 (N.D.1991). The determination of whether or not a policy is ambiguous is a question of law for the court. Sellie v. North Dakota Ins. Guar. Ass’n, 494 N.W.2d 151, 156 (N.D.1992).

“[TJerms of an insurance policy are given their ordinary, usual and commonly accepted meaning.” Thedin v. United States Fidelity & Guar. Ins. Co., 518 N.W.2d 703, 706 (N.D.1994). “An ambiguity exists when good arguments can be made for two contrary positions about the meaning of a term in a document.” Fisher v. American Family Mut. Ins. Co., 1998 ND 109, ¶ 5, 579 N.W.2d 599.

[¶ 15] “The absence of a definition in and of itself does not establish ambiguity.” Fireman’s Fund Ins. Cos. v. Ex-Cell-O Corp., 702 F.Supp. 1317, 1323 n. 7 (E.D.Mich.1988). See also Carey Canada, Inc. v. Columbia Cas. Co., 940 F.2d 1548, 1556 (D.C.Cir.1991) (stating “neither the mere absence of a policy definition nor the presence of a dispute as to meaning of the provision necessarily renders the policy or term ambiguous”); Hanneman v. Continental Western Ins. Co., 1998 ND 46, ¶ 28, 575 N.W.2d 445 (stating “merely because a contract term is undefined, disputable, or vague does not mean the issue is automatically resolved in favor of the insured”). “When an insurance policy fails to define a term, we often turn to the dictionary to determine the plain, ordinary meaning of that term.” Dundee Mut. Ins. Co. v. Marifjeren, 1998 ND 222, ¶ 14, 587 N.W.2d 191.

[¶ 16] Center Mutual’s failure to define an employee does not render the policy ambiguous or require construing the policy against Center Mutual. The policy defines a farm employee as “an employee of an insured whose duties are in connection with the farming operations of the insured.” Thus, the existence of coverage requires a finding that an individual is an employee, which the policy does not define. Because the insurance policy does not define “employee,” we must apply the plain, ordinary meaning of the term. Webster’s New World Dictionary of the American Language (2d College ed.1980) defines an employee as “a person hired by another, or by a business firm, etc., to work for wages or salary.” The American Hentage Dictionary of the English Language (1973) defines an employee as a “person who works for another in return for financial or other compensation.” Thus, in ordinary usage, an employee is a person who works for another in exchange for compensation.

[¶ 17] An employer-employee relationship is based on a contract. “We are satisfied that absent an indication of a different meaning in an insurance contract, the word ‘employee,’ understood in its common and usual sense, signifies one who is a party to an employment contract, express or implied,” Savoie v. Fireman’s Fund Ins. Co., 347 So.2d 188, 191 (La.1977). “A contract of employment is a contract by which one, who is called the employer, engages another, who is called the employee, to do something for the benefit of the employer or of a third person ” N.D.C.C. § 34-01-01. “A contract is an agreement to do or not to do a certain thing,” N.D.C.C. § 9-01-01(1), and requires “consent of the parties ... and ... cause or consideration,” N.D.C.C. § 9-01-02.

[¶ 18] We conclude the trial court did not err, as a matter of law, in determining an employee covered by the endorsement is one who works for another in exchange for consideration.

IV

[¶ 19] Larry Thompson contends the trial court erred in determining John was not, in fact, an employee.

[¶20] “[T]he existence of an employment relationship is ordinarily a question of fact.” Great West Cas. Co. v. Bergeson, 550 N.W.2d 418, 420 (S.D.1996). “No single factor can be determinative; each case must be decided on its own facts.” Id. “The existence of a contract is a question of fact.” Lonesome Dove Petroleum, Inc. v. Nelson, 2000 ND 104, ¶ 15, 611 N.W.2d 154 (citing Stout v. Fisher Industries, Inc., 1999 ND 218, ¶ 11, 603 N.W.2d 52, where we held the existence of an oral employment contract was a question of fact). Our review of fact questions is governed by the “clearly erroneous” standard of N.D.R.Civ.P. 52(a). Lonesome Dove Petroleum, Inc., at ¶ 15. “[A] finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made.” Id. A trial court’s choice between two permissible views of the weight of the evidence is not clearly erroneous. Tishmack v. Tishmack, 2000 ND 103, ¶ 8, 611 N.W.2d 204. On appeal, we do not reweigh conflicts in the evidence. Habeck v. MacDonald, 520 N.W.2d 808, 813 (N.D.1994). A trial court’s findings of fact are presumed correct. Peterson v. Peterson, 1999 ND 191, ¶6, 600 N.W.2d 851.

[¶ 21] In determining if an individual is an employee under an insurance policy, courts look to such factors as the alleged employer’s control over the individual, the alleged employer’s ability to discharge the individual, whether the employer furnished materials, tools, or equipment, the regularity of work, and if the employer compensated the individual for work performed. Illinois Founders Ins. Co. v. Barnett, 304 Ill.App.3d 602, 237 Ill.Dec. 605, 710 N.E.2d 28, 36 (1999). The court in Hudson v. Allstate Ins. Co., 169 So.2d 598, 602 (La.Ct.App.1964), found there was no employer-employee relationship:

Here, Ted Hudson was a minor. He was a nephew (by marriage) of Herbert L. Miller. He lived nearby, and as was natural, Mr. Miller sometimes invited Ted or his brother to assist him in small jobs. Never was any pay stipulated or expected. Never was any length of employment discussed or contemplated. Ted was free to help or not to help. He was free to do the job as Mr. Miller wanted it done, or he could have declined. It was always a pure and simple accommodation on the part of Ted Hudson. Never did he tell his uncle, “You owe me so much,” but always “I charge you nothing.” Every time Mr. Miller gave the boy any money, it was a gratuity in appreciation for the help rather than a wage given in payment of service.

Ordinarily, a family relationship does not achieve the status of an employment relationship without characteristics peculiar to employment, such as compensation, regularly scheduled hours, and continuity of service. Farm Bureau Mut. Ins. Co. v. Weber, 310 Minn. 52, 245 N.W.2d 238, 239 Syll. 1 (Minn.1976).

[¶ 22] Larry Thompson testified: 1) John “was expected, just like every other farm boy around the country, to help out on the farm and do the chores and activities”; 2) “there was no formal arrangement as to a certain salary or wage. [He] simply gave [his sons] spending money when they needed it”; 3) he bought and fed 4-H steers for his sons, “[p]lus they had cars, they had motorcycles, they had four-wheelers. I mean it was all kind of figured in”; 4) he never gave John a W-2 for 1991 or earlier years; and 5) he controlled the work, furnished the tools and supplies, and could terminate his sons’ services at any time.

[¶ 23] John Thompson testified: 1) he never referred to his father as his employer or to himself as an employee; 2) he was “doing the farm work just as all the other farm boys in — in the area would”; 3) he never had a contractual arrangement about what to do with his father, who “just told us what to do”; and 4) there was never a written or verbal arrangement to be paid “like monthly salaries.”

[¶ 24] There is evidence supporting the trial court’s finding “John Thompson was not a farm employee on the date of his suffering the severe injuries on January 11, 1992,” and we conclude the finding is not clearly erroneous.

[¶ 25] Affirmed.

[¶ 26] MARY MUEHLEN MARING, DALE V. SANDSTROM, JJ., ALLAN L. SCHMALENBERGER, D.J., CAROL RONNING KAPSNER, Acting C.J., concur.

[¶ 27] The Honorable ALLAN L. SCHMALENBERGER, D.J., sitting in place of VANDE WALLE, C.J., disqualified.

      . Coverage L covers personal liability for bodily injury or property damage.

      . On January 29, 1998, judgment was entered in John's suit against Larry. It provided judgment against Larry and in favor of John for $3,000,000, and provided John "may seek only to satisfy this judgment from Center Mutual Insurance Company and/or the agent or any insurance company insuring the agent who sold Larry Thompson the policy.”


author: GILBERTSON, Justice.

text:
    2000 SD 133
    STATE of South Dakota, Plaintiff and Appellant, v. Robert Owen WILSON, Defendant and Appellee. State of South Dakota, Plaintiff and Appellant, v. Nicholas Palmer Blommer, Defendant and Appellee.
    Nos. 21304, 21305.
    Supreme Court of South Dakota.
    Argued Sept. 21, 2000.
    Decided Oct. 18, 2000.

      Mark Barnett, Attorney General, Ann D. Meyer, Assistant Attorney General, Pierre, for plaintiff and appellant.
    James R. Haar, Tripp, for defendant and appellee Wilson.
    William J. Klimisch of Goetz and Klim-isch, Yankton, for defendant and appellee Blommer.
   GILBERTSON, Justice.

[¶ 1.] The defendants were arrested in a motel room, which was searched pursuant to a search warrant. The trial court suppressed the evidence seized as to both defendants because the judge who issued this warrant acted outside the circuit to which he had been elected. The State appeals the orders suppressing the evidence seized pursuant to an intermediate appeal granted by this Court. We affirm.

FACTS AND PROCEDURE

[¶ 2.] In the early hours of October 9, 1999, Officer Wentzel of Parkston, South Dakota, was approached by a confidential informant. The informant told Wentzel that defendant Wilson had shown her a green leafy, substance, in a drawer in room 22 of the Rainbow Motel located in Park-ston, South Dakota. In addition, the informant notified Wentzel, that Wilson had identified the substance as marijuana. When asked by Wilson if she knew anyone in Parkston that dealt in drugs, she replied that her cousin had in the past. Wilson then informed her that he could supply marijuana cheaper to her cousin than what her cousin was currently paying. Finally, the informant also told Wentzel that Wilson was driving a large maroon vehicle with Minnesota license plates, which was parked in front of Wilson’s motel room.

[¶ 3.] Accompanied by Police Chief Weekly, Wentzel verified that there was a vehicle matching the informant’s description parked by the motel. Wentzel contacted the management of the motel and confirmed that Wilson was the driver of the car and that he was registered in room 22. The manager informed Wentzel that she had discovered a green leafy substance while cleaning, but had thrown it in the trash. The trash bag was retrieved by the manager and the green leafy substance inside was removed. After performing field tests on the substance, Wentzel verified that the substance was in fact marijuana.

[¶ 4.] Wentzel then attempted to locate a judge to secure a warrant to search room 22 of the Rainbow Motel. Parkston is situated in Hutchinson County which is located in the First Judicial Circuit, but Wentzel’s attempts to reach a judge of that circuit were unsuccessful. Wentzel then telephoned Judge Lee D. Anderson of the Fourth Judicial Circuit, in Mitchell, South Dakota, because Wentzel believed that Judge Anderson was authorized to issue the warrant. Judge Anderson also believed that he was authorized to issue the warrant pursuant to an order, issued On March 3, 1993, by the Chief Justice of the Supreme Court, assigning him to assist the First Judicial Circuit. However, the March 3, 1993 order had been rescinded by the Chief Justice on September 29, 1998 and copies thereof were distributed to Judge Anderson and other affected officials.

[¶ 5.] After Judge Anderson signed the warrant, Wilson’s room at the Rainbow motel was searched by Wentzel. Wentzel discovered two bags of green leafy substance and related drug paraphernalia. Blommer and Wilson were arrested and subsequently indicted in the First Judicial Circuit for possession of more than one-half pound but less than one pound of marijuana, a Class 5 felony.

[¶ 6.] Each defendant filed a motion to suppress all the evidence seized from the motel room and all statements made to law enforcement pursuant to the search. The trial court granted the defendants’ motions pursuant to article V, section 11 of the South Dakota Constitution on the grounds that Judge Anderson, as a Fourth Circuit Judge, was not authorized to judicially act in the First Circuit. The trial court found that because the Chief Justice had revoked his earlier order, Judge Anderson was'no longer assigned to the First Circuit, therefore, he had no authority to issue the search warrant. As a result, the trial court determined the search was illegal and all fruits thereof were improperly seized.

STANDARD OF REVIEW

[¶ 7.] A trial court’s decision to suppress evidence has traditionally been reviewed under an abuse of discretion standard. State v. Durke, 1999 SD 39, ¶ 11, 593 N.W.2d 407, 409. However, no discretion would exist here as the interpretation of Constitutional provisions is a matter of law reviewed under the de novo standard. Steinkruger v. Miller, 2000 SD 83, ¶ 8, 612 N.W.2d 591, 595. The interpretation of statutes is also reviewed under the rife novo standard as a matter of law. Welsh v. Centerville Township, 1999 SD 73, ¶ 7, 595 N.W.2d 622, 624.

ANALYSIS AND DECISION

[¶ 8.] South Dakota’s original constitution was adopted on October 1, 1889. From 1889 to 1970, it was amended 79 times, each time adding more complexity to the document. Inconsistencies began to appear, and in general, any amendments dealt only with minor problems, leaving “the larger deficiencies untouched.” South Dakota Constitutional Revision Commission, Third Annual Report 1 (1972). In 1969, the legislature created the Constitutional Revision Commission “to enter into a comprehensive study of the constitution of the State of South Dakota to determine ways and means to improve and simplify the constitution.” Id. As part of the revision process, the commission recommended that the various state and local court systems be consolidated into a unified judicial system. This new structure was recommended to streamline the court system by “eliminating overlapping jurisdiction between courts.” 1 Recommendations of the Constitutional Revision Corn-mission (Recommendations) 34 (1971). With an eye towards the most efficient allocation of resources, the commission recommended establishing the office of Chief Justice as administrative head of this unified court system. Id. These recommendations were adopted by the voters of South Dakota in 1972, and the current Unified Judicial System was thereby established.

[¶ 9.] The foundation of today’s decision was recognized in our holding in State v. Horst, 504 N.W.2d 862 (S.D.1993).

Except as is permitted by constitutional or statutory provision, a judge cannot act for a court other than the one for which he was selected. The jurisdiction of a judge being incident to, and growing out of, the jurisdiction of the court of which he is a member, a judge cannot, in the absence of authority of law, exercise the judicial functions of a court for which he has not been selected.

Id. at 863-64 (quoting 48A CJS, Judges § 69 (1981). See also State v. Springer-Ertl, 1997 SD 128, 570 N.W.2d 39. Judge Anderson was selected by the voters to be on the Fourth Judicial Circuit Court. South Dakota Legislative Manual 493 (1999-2000 ed.). It was from there that he was subsequently re-elected in 1998. Id. Therefore, his authority to act in the First Circuit, if any, must arise from a constitutional or statutory provision not inconsistent therewith.

[¶ 10.] We first examine relevant constitutional provisions in an attempt to discern authority for Judge Anderson’s actions. In South Dakota, there are three constitutional methods by which a circuit judge is authorized to act. First, a judge may be elected by the voters of the represented circuit. S.D.Const. art. V, § 7. Second, a judge may be appointed by the Governor in the case of a vacancy in the circuit. Id. Finally, a judge may be assigned to another circuit by the Chief Justice of the Supreme Court. Id. § ll.

[¶ 11.] As Judge Anderson was neither elected to, nor appointed to the First Circuit, we shall begin our constitutional analysis with article V, section 11. That section provides, in relevant portion that:

The chief justice shall have power to assign any circuit judge to sit on another circuit court, or on the Supreme Court in case of a vacancy or in place of a justice who is disqualified or unable to act. The chief justice may authorize a justice to sit as a judge in any circuit court.

Id. The previous applicable constitutional provision stated that “[t]he judges of the circuit courts may hold courts in other circuits than their own, under such regulations as may be prescribed by law.” S.D.Const. of 1899, art. V, § 29. Under the former section 29, a circuit court judge was allowed to orally request that a judge from another circuit preside over an action in the former circuit. State v. Montgomery, 26 S.D. 589, 541, 128 N.W. 718, 719 (1910). It was also legally allowable for a judge of one circuit to issue a writ of mandamus as to a proceeding in another circuit. Holden v. Haserodt, 3 S.D. 4, 5-6, 51 N.W. 340, 340-41 (1892). The Constitutional Revision Commission found that this process, whereby judges could transact business in another circuit at the request of that circuit, contributed to the overall inefficiency of the judicial system. Therefore, in 1972, this system was repealed and replaced with the provisions of article V, section 11. In the words of the Commission, allowing the Chief Justice to assign circuit judges to another circuit “provides for the best possible utilization of judicial personnel.” Recommendations 55.

[¶ 12.] The State asserts that article V, section 11 is not the exclusive method by which circuit judges may be appointed to another circuit. To support this argument, the State claims that, while section 11 may apply to “everyday situations,” it does not apply in times of emergency, “like the urgent need for the execution of a search warrant.” The State has not alerted us to any substantive authority for this proposition, nor have we discovered any such authority. When an ambiguity exists in constitutional language, we look to “the legislative history and historical background” for guidance. Cummings v. Mickelson, 495 N.W.2d 493, 498-99 (S.D.1993). It appears to us that Judge Anderson’s actions are included in what the framers of the current constitutional provision intended to prohibit. Under the 1889 Constitution, judges were allowed much more flexibility when crossing circuit boundaries. The framers of the 1972 amendments instead provided for a more efficient model when they drafted a provision which granted the power to assign judicial personnel to the Chief Justice. Recommendations 34. By repealing the former section 29, the people of South Dakota expressly forbid circuit judges from acting outside their boundaries without an assignment from the Chief Justice.

[¶ 13.] When interpreting statutory provisions “[w]e presume the Legislature does not insert surplusage into its enactments.” Mid-Century Ins. Co. v. Lyon, 1997 SD 50, ¶9, 562 N.W.2d 888, 892. The same rationale applies to constitutional provisions. If, as the State claims, there is some other method by which Judge Anderson could have acted within the First Circuit, there would be no need to give the Chief Justice this assignment power. In addition, there would have been no need for the Chief Justice to previously authorize Judge Anderson to assist with the business of the First Circuit. Nor would it have been necessary to subsequently revoke that authorization. The State’s argument ignores the wording of section 11, as well as the framer’s intent, and hence must fail.

[¶ 14.] The State also argues that article V, section 5 of the South Dakota Constitution would allow Judge Anderson to act across circuit boundaries. That provision states that “[t]he circuit courts have original jurisdiction in all cases except as to any limited original jurisdiction granted to other courts by the Legislature. The circuit courts and judges thereof have the power to issue, hear and determine all original and remedial writs.” S.D.Const. art. V, § 5. The State argues that this provision somehow supercedes all circuit boundaries, granting statewide jurisdiction. We do not agree. Whenever possible, this Court will “construe terms in a constitutional provision in pari materia.” Poppen v. Walker, 520 N.W.2d 238, 247 (S.D.1994). In addition, we will not construe a constitutional provision to arrive at a strained, unpractical, or absurd result. Nelson v. State Bd. of Dentistry, 464 N.W.2d 621, 624 (S.D.1991). The State’s reliance on the phrase “all cases” to mean “all cases in any circuit” is unfounded. To reach such a conclusion we would have to ignore the entire structure of the Unified Judicial System, as well as its constitutional foundation. The State’s interpretation would indeed be “strained, unpractical, [and] absurd.” Id. If judges are able to hear any and all cases brought in the State of South Dakota, there would be no need to establish circuit boundaries. In addition, the provision states that the power to issue, hear, and determine all writs is granted to the “circuit courts and judges thereof.” S.D.Const. art. V, § 5 (emphasis added). Use of the word “thereof’ implies that the power attaches to judges of that particular circuit See Black’s Law Dictionary 1488 (7th ed.1999). When viewed in conjunction with article V, section 11, section 5 is construed to mean that a judge properly elected, appointed or assigned to a circuit has the power to transact business only within that circuit.

[¶ 15.] As no constitutional mandate exists to support Judge Anderson’s actions, we now address the State’s claim of separate statutory authority. The State argues that SDCL 16-6-29 gives a circuit judge the jurisdiction to hear matters throughout the state, even without appointment by the Chief Justice. That statute, in relevant part, provides as follows:

A judge of the circuit court is a judge of the circuit court in the State of South Dakota and in any circuit in which he acts as a judge. The orders, judgments, and decrees of a circuit judge acting in a county other than one in his own circuit shall be as effectual for all purposes as though made by a judge regularly elected and qualified therein ....

SDCL 16-6-29. According to the State, “clearly, no jurisdictional limitation on a circuit court judge’s authority to execute search warrants is contemplated by this statute.” We do not agree. When examining statutes in the context of constitutional provisions, it bears repeating that “[statutes must conform to the Constitution, not vice versa.” Poppen, 520 N.W.2d at 242 (citations omitted). As we have determined that article V, section 11 gives the Chief Justice the exclusive authority to assign judges to another circuit, this statute must conform to the Constitution, “not vice versa.” To reconcile these two provisions, we need only interpret the terms “acts” and “acting” to mean “acts or acting in a manner authorized by the Constitution.” When a circuit judge acts in another circuit pursuant to assignment by the Chief Justice, then and only then, will its “orders, judgments, and decrees ... be as effectual ... as though made by a judge regularly elected and qualified therein ....” SDCL 16-6-29.

[¶ 16.] The State also finds support for Judge Anderson’s actions in SDCL 23A-35-2. That statute provides that “[a] search warrant authorized by this chapter may be issued by a committing magistrate in the county where the property sought is located, on the request of a law enforcement officer or prosecuting attorney.” Id. The definition of a “committing magistrate” includes “a judge of the circuit court.” SDCL 23A-45-9(3)(b) (emphasis added). Therefore, the statute requires that when a circuit judge acts as a committing magistrate, it must be a circuit judge authorized to act in the circuit that encompasses the county wherein the property sought is located. Here, the evidence was seized from a motel room located in Hutchinson County, which is part of the First Circuit. Because Judge Anderson was not a circuit judge authorized to act in the First Circuit, the State’s argument fails.

[¶ 17.] There being no constitutional or statutory authority permitting Judge Anderson to sign a search warrant to be executed in Hutchinson county, the warrant was invalid.

[¶ 18.] The State asserts that if we find Judge Anderson’s execution of the search warrant to be improper, we should apply the common law defacto officer doctrine to justify his actions. The common-law is in force in South Dakota, except where it conflicts with the Constitution or statutes of this state. SDCL 1-1-23, -24. As any application of this doctrine would conflict with the Constitution and statutes of this state as we have previously discussed, the doctrine is inapplicable.

[¶ 19.] In addition, the State argues that exigent circumstances excused the actions of Judge Anderson. “Exigent circumstances exist when there is a situation that demands immediate attention and there is no time to get a warrant.” State v. Buchholz, 1999 SD 110, ¶ 18, 598 N.W.2d 899, 903 (emphasis added) (citing State v. Hanson, 1999 SD 9, ¶ 35, 588 N.W.2d 885, 892). In this case, a warrant was secured and therefore, the doctrine does not apply.

[¶ 20.] The State’s final argument rests upon an application of the good faith doctrine to the facts of this case. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The State argues that it should have been entitled to present evidence to establish the good faith attempts made by the police officer to locate a judicial officer empowered to act in the First Judicial Circuit. However, the case authority brought forth by the State is inapplicable to the facts now before us. The cases cited by the State deal with technical violations of statutes or procedural rules, not actions prohibited by the jurisdiction’s constitution. One case cited by the State explicitly recognizes the difference:

[violations of the rule which do not amount to constitutional error are considered ‘nonfundamental,’ and nonfunda-mental violations require suppression only where there is prejudice in the sense that the search would not have occurred or would not have been so abrasive had the rule been followed, or where there is evidence of intentional and deliberate disregard of the rule.

People v. Ruiz, 217 Cal.App.3d 574, 265 Cal.Rptr. 886, 892 (3 Dist.1990) (emphasis added). Actions by a police officer cannot be used to create jurisdiction, even when done in good faith.

[¶ 21.] The trial court’s suppression of the evidence seized pursuant to a search warrant issued by Judge Anderson was not an abuse of discretion and is affirmed.

[¶ 22.] MILLER, Chief Justice, and SABERS, AMUNDSON and, KONENKAMP, Justices, concur.

      . Effective July 1, 2000 per SDCL 16-5-1.2 the former Fourth Judicial Circuit was abolished and its counties divided into the First and Third Judicial Circuits. Davison County and Judge Anderson's office were assigned to the First Judicial Circuit. Hereafter all references to circuits are as they existed as of the date of the issuance of the search warrant, that being October 9, 1999.

      . Blommer was sharing the room with Wilson while they worked on a local construction project.

      . As previously noted, the 1972 constitutional revisions also established the newly created office of Chief Justice of the South Dakota Supreme Court.
      The Chief Justice concept is established with a chain of command down to the lowest court. This allows the Chief Justice, as administrator of the court system, to assign judicial personnel to areas of increased litigation, thus providing better service without increased costs .... The Chief Justice is the administrative head, not only of the Supreme Court, but also the entire integrated court system of the State.

        Recommendations 34, 49. Clearly Circuit Judges such as Judge Anderson possess, by virtue of the Constitution and statutes, independent judicial powers to act within their judicial circuits. Had he issued the warrant for service within his judicial circuit, it would have been a valid act legally sufficient for execution. He possesses these independent powers unlike other Unified Judicial System employees who are under the control of an administrative chain of command that is ultimately supervised by, and accountable to the Chief Justice. However, as will be established, when a circuit judge attempts to act outside his judicial circuit, this independent judicial power does not exist, and pursuant to the constitutional mandate of article V, § 11, any authority to act is dependent upon an order by the Chief Justice setting forth the extent and limits of this out-of-circuit authority-

      . The State also argues that use of the term ''may” in article V, section 11 implies that the Chief Justice’s power is discretionary and therefore, not the exclusive method of transferring authority across circuit boundaries. This argument ignores the obvious fact that "may” modifies the Chief Justice’s power to appoint a justice to act as a judge in a circuit court. It clearly does not apply to the Chief Justice's power to appoint circuit court judges to another circuit court.