author: KAPSNER, Justice. SANDSTROM, Justice,

text:
    2008 ND 84
    STATE of North Dakota, Plaintiff and Appellant v. David GAY, Defendant and Appellee.
    No. 20070348.
    Supreme Court of North Dakota.
    May 15, 2008.

      Nicole E. Foster (argued), State’s Attorney, Williston, ND, for plaintiff and appellant.
    Faron E. Terry (argued), Minot, ND, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] The State of North Dakota (“State”) appeals a district court order granting a motion to suppress evidence against defendant, David Gay. We affirm the order of the district court.

I

[¶ 2] On May 3, 2007, the Northwest Narcotics Task Force received a tip claiming that a probationer, Ben Smith, would be selling drugs in Williston, North Dakota. The tip claimed Smith planned to meet with an unknown male driving a black car at Smith’s workplace after Smith finished work that day. According to the tip, the unknown male would be coming from New Town, North Dakota. The tip provided the person meeting Smith intended to purchase methamphetamine. This tip was relayed to probation Officers Cote and Haagenson and to several other law enforcement officers. Officer Kvande, from the Williams County Sheriffs Office, was one of the officers who was made aware of the tip, was involved in the investigation, completed a police report, and gave testimony at the suppression hearing. The identity and nature of the tipper was not disclosed in any of the police reports, testimony, or affidavits submitted during the hearing on the motion to suppress.

[¶ 3] Officer Kvande was the only witness called by the State at the suppression hearing to testify regarding the investigation, charging, and arrest of Gay. The district court did not create written findings of fact; instead, the district court explained its legal rationale for its decision, with very limited discussion of specific facts, on the record at the suppression hearing.

[¶ 4] According to Officer Kvande’s police report and his testimony at the suppression hearing, several law enforcement officers watched Smith’s workplace after receiving the tip and saw another male get into Smith’s vehicle with him. Officer Kvande’s report states he was called to assist with the investigation at a location several blocks from Smith’s workplace after several officers had already stopped Smith’s car. Officer Kvande’s report and testimony state that when he arrived on the scene, the investigating officers were conducting a probation search of Smith and Smith’s vehicle and had handcuffed Smith’s passenger, David Gay. Officer Kvande testified one of the officers had already read Gay his Miranda rights and had handcuffed Gay for officer safety prior to Officer Kvande’s arrival. Officer Kvande’s report states that after he arrived, he re-read Gay his Miranda rights, kept him handcuffed, and, with Gay’s consent, conducted a pat-down search for weapons. Officer Kvande’s testimony indicates he believed Gay had already been searched for weapons before Officer Kvande arrived. No drugs, weapons, or other illegal material was found on Gay during Officer Kvande’s pat-down. While Officer Kvande did not find any drugs or other contraband on Gay, the officers searching Smith found a large sum of cash in Smith’s pocket and what they believed to be methamphetamine paraphernalia' in Smith’s car. It is unclear from Officer Kvande’s testimony or report whether the cash and paraphernalia were found before the first officers at the scene handcuffed Gay.

[¶ 5] Officer Kvande testified he spoke with Gay after the pat-down and the Mi randa recitation while Gay was still handcuffed. Officer Kvande testified Gay told him he was not involved in any drug deal, but he had smoked marijuana on the previous day. Officer Kvande testified that at this point, Gay had been in handcuffs for about fifteen minutes. Officer Kvande then placed Gay under arrest for ingestion of a controlled substance.

[¶ 6] Gay brought a motion to suppress his statement, and the district court granted the motion at a pretrial suppression hearing:

THE COURT: The Court tends to— well, let me point out what I see.
Law enforcement officials have significant authority to stop Mr. Smith, I believe, because of his probationary status. And they apparently thought they had a lead on some illegal activity going on. Um, that alleged illegal activity in and of itself was insufficient for any kind of arrest.
So what we really have is a stop made on authority of a probation search of someone who is not the defendant, and the search of the defendant and others for officer safety. At that point, I can find nothing untoward about the activity of the officers. And had they found something in Mr. Smith’s pocket — or Mr. Gay’s pocket at that time, I see nothing which would potentially throw out any discovery.
Their basis of dealing with Mr. Gay, however, was protection of the officers. After that had been established that that was not a risk, Mr. Gay continued to be in handcuffs. Which triggers some use of authority that subjects Mr. Gay to certain rights. The mere fact that— well, he was in custody. He was under arrest in effect at that time. He was in handcuffs. And nothing he could do about that. After the basis for him being in handcuffs was eliminated, that is after the search showed he was not at risk, the police no longer had a unfettered basis for questioning.
And when you have someone in handcuffs, that is intimidating enough so that merely saying the Miranda warnings did not clear the taint. There was no probable cause for his continued arrest at the time that the questioning occurred.
I am going to grant the motion on that ground.

[¶ 7] The State appeals, arguing the district court erred in suppressing Gay’s statements because the search and seizure of Gay was not unreasonable under the United States or North Dakota Constitutions.

II

A. Proper Appeal Under N.D.C.C. § 29-28-07(5)

[V 8] Gay argues the State has not properly taken its appeal in this case. “The prosecution’s right to appeal in a criminal case is strictly limited by statute.” City of Harvey v. Fettig, 2001 ND 12, ¶ 5, 621 N.W.2d 324 (citing State v. Norton, 2000 ND 153, ¶ 5, 615 N.W.2d 531; State v. Schindele, 540 N.W.2d 139, 141 (N.D. 1995)). Section 29-28-07(5), N.D.C.C., allows the prosecution to appeal from:

An order granting the return of property or suppressing evidence, or suppressing a confession or admission, when accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding. The statement must be filed with the clerk of district court and a copy must accompany the notice of appeal.

“The prosecutor’s statement cannot be a mere paraphrase of the statutory language, but must have substance.” Fettig, at ¶ 6 (citing Norton, 2000 ND 153, ¶ 5, 615 N.W.2d 531; Schindele, 540 N.W.2d at 141). “Prosecutors must support their appeals with an explanation of the relevance of the suppressed evidence.” Id. “The purpose of the statutory requirement is to ensure that the prosecutor has carefully evaluated the State’s case, and the actual effect of the suppression order, before filing the notice of appeal.” Id. (emphasis in original and citations omitted). “The State’s right to appeal hinges on a favorable review of the prosecutor’s statement by this Court.” Id. (citing Schindele, at 141).

[¶ 9] In Fettig, this Court dismissed a prosecutor’s appeal, noting the State failed to address both prongs of N.D.C.C. § 29-28-07(5) because “[t]he ‘statement’ in the prosecutor’s affidavit at best merely paraphrases one of the two prongs required by the statute, and fails to outline the specific relevance of and need for the evidence which was suppressed.” Id. at ¶ 8. The Court also noted the State failed to reference the applicable statute in its notice of appeal. Id. at ¶ 7.

[¶ 10] Here, the State does reference N.D.C.C. § 29-28-07(5) and both prongs of the statute in its notice of appeal. The State does not, however, in its notice of appeal or prosecutor’s statement, “outline the specific relevance of and need for the evidence which was suppressed.” Fettig, at ¶ 8. A review of the facts clearly demonstrates the relevance of the evidence suppressed; namely, the statement made by Gay which the lower court suppressed is the only evidence that the State has suggesting Gay ingested a controlled substance. In this case, the relevance of the evidence is plain and would not require explanation. Because the State referenced the appropriate statute, addressed both prongs of the statute, and the relevance of the suppressed evidence is plain, we allow the State’s appeal to proceed.

B. Suppression of Gay’s Statements

[¶ 11] When this Court reviews a trial court’s ruling on a motion to suppress, we defer to the trial court’s factual findings and resolve conflicts in evidence in favor of affirmance. State v. Guscette, 2004 ND 71, ¶ 5, 678 N.W.2d 126. Questions of law, however, are fully renewable on appeal. State v. Mitzel, 2004 ND 157, ¶ 10, 685 N.W.2d 120.

[¶ 12] Here, law enforcement stopped a vehicle driven by a probationer, Ben Smith, who was known to and identified by the probation officers who assisted in the investigative stop. As this Court has explained in prior decisions, a probationer’s Fourth Amendment rights are limited by the terms of his or her probation. See, e.g., State v. Hurt, 2007 ND 192, ¶¶ 18-20, 743 N.W.2d 102; State v. Krous, 2004 ND 136, ¶ 19, 681 N.W.2d 822. The stop and search of the vehicle in which Gay chose to ride is not problematic because Gay was riding with probationer Smith, and law enforcement premised the stop on a probation search, which does not require reasonable and articulable suspicion or probable cause, like other stops, searches, or seizures. Krous, at ¶ 19. The stop and search of the car itself was not unreasonable under Fourth Amendment standards, even though the record does not otherwise establish a reasonable and articulable suspicion of criminal activity when the vehicle was stopped.

[¶ 13] The law enforcement officers who first arrived at the scene removed Gay from Smith’s vehicle, placed him in handcuffs, and conducted a pat-down search for weapons. The State argues, and the district court agreed, that the initial pat-down search of Gay was constitutionally permissible because it was based on officer safety.

[¶ 14] The Fourth Amendment of the United States Constitution, enforceable against the States through the Fourteenth Amendment, prohibits unreasonable searches and seizures. City of Jamestown v. Dardis, 2000 ND 186, ¶ 8, 618 N.W.2d 495. “A person may be seized without being arrested.” State v. Heitzmann, 2001 ND 136, ¶ 9, 632 N.W.2d 1 (citing State v. Boline, 1998 ND 67, ¶ 26, 575 N.W.2d 906). “Within the meaning of the Fourth Amendment, a seizure occurs whenever an officer stops an individual and restrains his freedom, and that seizure must be reasonable.” Heitzmann, at ¶ 9 (citing State v. Gilberts, 497 N.W.2d 93, 95 (N.D.1993)). A seizure occurs “ ‘[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’ ” Boline, at ¶ 25 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “A determination of reasonableness requires balancing the public interest with the individual’s right to personal security free from arbitrary interference by police officers.” Heitzmann, at ¶ 9 (citing Gilberts, at 95). The Fourth Amendment speaks to unreasonable searches as well. U.S. Const, amend. IV; see also N.D. Const, art. I, § 8 (prohibiting both “unreasonable searches and seizures”). A search, within the meaning of the Fourth Amendment, occurs when “the government intrudes upon an individual’s reasonable expectation of privacy.” State v. Dunn, 2002 ND 189, ¶ 4, 653 N.W.2d 688 (citing State v. Winkler, 552 N.W.2d 347, 351 (N.D.1996)).

[¶ 15] “There is no automatic search rule for companions of an arrestee.” Heitzmann, at ¶11 (citing Wyoming v. Houghton, 526 U.S. 295, 303, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999); Ybarra v. Illinois, 444 U.S. 85, 92-96, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); United States v. Menard, 95 F.3d 9, 11 (8th Cir.1996); United States v. Flett, 806 F.2d 823, 827 (8th Cir.1986); United States v. Bell, 762 F.2d 495, 498 (6th Cir.1985)). “Rather, a law enforcement officer may conduct a frisk, or a pat-down search, of a person only when the officer possesses an articu-lable suspicion that an individual is armed and dangerous.” Id. (citing State v. Haverluk, 2000 ND 178, ¶22, 617 N.W.2d 652 (internal quotations omitted)). The United States Supreme Court has explained the prerequisites for and the purposes underlying a “frisk” or “pat-down” search:

[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (internal citations and footnote omitted).

[¶ 16] It is reasonable for a police officer to request and require that a passenger step out of a vehicle while the officer conducts a search of the vehicle, “even though the passenger ha[s] not violated any traffic laws and [i]s not suspected of committing any crime[;]” however, a frisk or pat-down search of the passenger requires articulable suspicion that the passenger is armed and dangerous. See He-itzmann, at ¶¶ 10-11 (citing Gilberts, 497 N.W.2d at 96) (explaining that when law enforcement requires a passenger to exit a vehicle to conduct a search it is constitutionally permissible because when weighing “the minor intrusion on a passenger’s liberty in momentarily leaving a vehicle [against the safety of the officers conducting the search], safety predominates”). It was constitutionally permissible for law enforcement to ask Gay to exit the vehicle. While “[a] patdown is not simply a routine preliminary to a more extensive searchf,]” Heitzmann, at ¶ 13, the district court concluded, based upon the testimony of Officer Kvande, that the pat-down search, along with Gay’s initial placement in handcuffs, was warranted and constitutional because of the investigating officers’ concerns for safety.

[¶ 17] The district court found the initial pat-down search and handcuffing was constitutionally permissible, but that the police conduct following the pat-down search was unreasonable under the Fourth Amendment. A seizure occurs “ ‘[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’” Boline, 1998 ND 67, ¶25, 575 N.W.2d 906 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Here, Gay’s liberty was restrained by show of authority and force when law enforcement handcuffed him, and this seizure continued after the purpose of the pat-down had been realized by law enforcement. In Heitzmann, we explained:

An officer is authorized to detain a person for as long as is reasonably necessary to effectuate the purpose of the detention. The right to make an investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it, and the test of reasonableness under the Fourth amendment requires careful attention to the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting the seizure or attempting to evade the seizure by flight. Officers are entitled to use the forcible means reasonably necessary to effectuate the detentive goals of investigation, maintenance of the status quo, or officer safety.

Heitzmann, 2001 ND 136, ¶ 18, 632 N.W.2d 1 (internal citations omitted).

[¶ 18] At the suppression hearing, the district court found Gay was handcuffed for “officer safety” prior to the frisk, but was kept in handcuffs after concerns of officer safety had dissipated. Based upon Officer Kvande’s testimony, the district court found that after law enforcement completed the first frisk of Gay, the search of Smith, and the search of Smith’s car, none of which produced any evidence of weapons, the continued seizure of Gay, by handcuffing, violated the Fourth Amendment’s prohibition against unreasonable seizure, and would warrant the application of the exclusionary rule for any evidence the officers obtained following the unlawful seizure. We agree; the exclusionary rule prohibits the admission of physical and testimonial evidence gathered illegally. Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

[¶ 19] Officer Kvande was called to the scene after Gay had been handcuffed, subjected to a frisk, and read his Miranda rights for the first time. According to his police report, Officer Kvande “asked [Gay] if [Officer Kvande] could check him for weapons.” After the second pat-down search, Officer Kvande left Gay in handcuffs and re-read Gay his Miranda rights. According to his report, Officer Kvande “began to question [Gay] about being with Ben [Smith] and the circumstances surrounding the reason that we had stopped their vehicle.” Apparently Gay spoke at length about why he was with Smith and then told Kvande “he used marijuana the previous day at his residence in New Town and that he smoked it using a joint.” After Gay told Officer Kvande about his use of marijuana, Officer Kvande placed Gay under arrest for ingestion of a controlled substance. The district court found Gay’s statements occurred during an illegal seizure and, applying the exclusionary rule to this testimonial evidence, suppressed Gay’s statements.

[¶ 20] Because we defer to the district court’s factual findings when we review a district court’s ruling on a motion to suppress, and Officer Kvande’s testimony and police reports support the factual conclusions of the district court, we affirm the order of the district court.

Ill

[¶ 21] Gay had twice been made aware of his Miranda rights, but was unlawfully seized at the time he made this alleged admission. These facts beg the question of whether a Miranda warning, guarding against violations of the Fifth Amendment, is sufficient to dissipate the taint of the ongoing unreasonable seizure, under the Fourth Amendment, making the statement admissible where it might otherwise be suppressed under the exclusionary rule. The interaction between the Fourth and Fifth Amendments was not raised nor argued by the parties on appeal. However, the district court did analyze this issue, finding “merely saying the Miranda warnings did not clear the taint [of the Fourth Amendment violation].” Because the district court spoke to the intersection of the Fourth and Fifth Amendments in Gay’s case, we conclude the trial court’s holding was not in error.

[¶ 22] In Brown v. Illinois, the United States Supreme Court spoke specifically to the effect of giving Miranda warnings following Fourth Amendment violations:

Although, almost 90 years ago, the Court observed that the Fifth Amendment is in “intimate relation” with the Fourth, the Miranda warnings thus far have not been regarded as a means either of remedying or deterring violations of Fourth Amendment rights.... The exclusionary rule, however, when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth. It is directed at all unlawful searches and seizures, and not merely those that happen to produce incriminating material or testimony as fruits. In short, exclusion of a confession made without Miranda warnings might be regarded as necessary to effectuate the Fifth Amendment, but it would not be sufficient fully to protect the Fourth. Miranda warnings, and the exclusion of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation.
If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted.... Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a “cure-all,” and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to “a form of words.”

Brown v. Illinois, 422 U.S. 590, 601-02, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (internal citations and footnotes omitted).

[¶ 23] The United States Supreme Court laid out four factors to consider when determining whether the exclusionary rule should be applied to statements given during or following an unlawful seizure. Id. at 604, 95 S.Ct. 2254. The Eighth Circuit Court of Appeals, relying on Brown, adopted the following four-prong test to determine whether a Miranda warning is sufficient to cure Fourth Amendment violations, making the defendant’s statement admissible:

(1) whether the suspect has been advised of his Miranda rights prior to giving his statement; (2) the temporal proximity of his statements to his illegal seizure; (3) the existence of intervening causes between the illegal arrest and the statements; and (4) the purpose or flagrancy of the official misconduct.

United States v. Reinholz, 245 F.3d 765, 779 (8th Cir.2001) (citing Brown, at 603-04, 95 S.Ct. 2254).

[¶ 24] In applying these factors to the present case, we conclude the district court properly suppressed the statements. The district court found Gay was read his Miranda rights, which weighs against suppression. The district court found Gay’s statements took place during the unlawful Fourth Amendment activity, which means the temporal proximity of his statements to his unlawful detention weigh in favor of suppression. The district court did not discuss any intervening causes that would dissipate the taint. The district court found that the purpose of the detention was officer safety, but Gay was kept in handcuffs for approximately fifteen minutes, and was not released from handcuffs after officer safety was no longer an issue. The district court ultimately found that giving Gay Miranda warnings, to protect his Fifth Amendment rights, did not dissipate the taint of the ongoing Fourth Amendment violations. Because “we defer to the court’s findings of fact and resolve conflicts in the evidence in favor of affir-mance!],]” State v. Guscette, 2004 ND 71, ¶ 5, 678 N.W.2d 126, and because there is evidence in the record to support the factual and legal conclusions of the district court, Gay’s statements were properly suppressed.

IV

[¶ 25] We affirm the order of the district court.

[¶ 26] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, JJ., concur.

SANDSTROM, Justice,

dissenting.

[¶ 27] At the intersection of the Fourth and Fifth Amendments to the United States Constitution, the majority follows the district court in making a wrong turn. I respectfully dissent.

[¶ 28] The district court suppressed the defendant’s statement because he was kept in handcuffs for fifteen minutes, including time after he had been frisked for weapons. I would reverse and remand because the actions of law enforcement were reasonable and the district court misapplied the law. There is no evidence that the handcuffs in any way coerced the defendant into incriminating himself. Even though the defendant testified at the suppression hearing, he offered no testimony of coercion. Indeed, after twice having been advised of his right to remain silent, that anything he said could and would be used against him in a court of law, and that he had the right to an attorney, the defendant made his incriminating statement in the nature of a taunt:

He stated that he used marijuana the previous day at his residence in New Town and that he smoked it using a joint. He stated that if he was to be UA’d that he would test positive for THC. He stated that it is not illegal to smoke the drugs and that there was nothing that we could do about it.

Unfortunately for the defendant, his taunt also reflected his apparent misunderstanding of the law.

[¶ 29] Law enforcement had received a tip of a drug transaction to happen in Williston, specifically that Ben Smith was supposed to be selling a half ounce of methamphetamine to an unknown male coming from New Town, possibly in a black car, and that the unknown male would meet Smith at Smith’s place of employment and they would go to a residence for the purchase. Smith’s probation officer had advised that he was on probation. Law enforcement “staked out” Smith’s place of employment. An unknown male met Smith at his place of employment. The unknown male arrived in a black vehicle registered to a person from New Town — a small North Dakota town. The unknown person and Smith traveled to the residence of Bryce Raad. Smith went into the residence and emerged after about twenty minutes. The officers apparently approached the vehicle with weapons drawn and removed and handcuffed the occupants, Smith and the unknown person. The unknown person was identified as the defendant, David Gay, from New Town. Both Gay and Smith were frisked. No weapons were found on either, but a large sum of cash was found on Smith. The occupant of the residence, Bryce Raad, emerged from the residence and was also outside at the scene of the stop. The stopping officers called for additional law enforcement assistance, apparently before Smith’s vehicle was searched. Officers also sought permission to search Raad’s pickup and his garage/shop at the location. The search of Smith’s vehicle found methamphetamine paraphernalia and a duffle bag containing a “Whizzinator” — a device used to defeat drug tests.

[¶ 30] Under similar situations, other courts have held that keeping vehicle occupants handcuffed for periods longer than fifteen minutes was reasonable. The U.S. Court of Appeals for the Sixth Circuit said keeping vehicle occupants handcuffed for 35 minutes or even an hour after they had been frisked was reasonable:

The investigative stop included several steps, all of them reasonably necessary to ensure the officers’ safety or to confirm or dispel their suspicions: pulling over the vehicle, forcing the suspects to exit the car, patting down the suspects, physically restraining then questioning them about the events at Chuck’s, confirming their identities by completing “field investigation cards,” thoroughly searching their car for weapons, and sending and receiving various communications to and from the officers at the crime scene. It is not surprising or disturbing that these steps would together last thirty-five minutes (as the defendants claim) or even an hour (as Houston and Perkins maintain). In either case, we conclude that the officers’ inquiries and safety precautions were reasonably related to the initial basis for stopping the car.

Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 815 (6th Cir.1999).

[¶ 31] ■ Despite the testimony that the officers continued the handcuffs for reasons of safety, the District Court held, apparently as a matter of law, that once a defendant had been frisked and no weapons found on his person, handcuffs were unreasonable.

So what we really have is a stop made on authority of a probation search of someone who is not the defendant, and the search of the defendant and others for officer safety. At that point, I can find nothing untoward about the activity of the officers. And had they found something in Mr. Smith’s pocket — or Mr. Gay’s pocket at that time, I see nothing which would potentially throw out any discovery.
Their basis of dealing with Mr. Gay, however, was protection of the officers. After that had been established that that was not a risk, Mr. Gay continued to be in handcuffs. Which triggers some use of authority that subjects Mr. Gay to certain rights. The mere fact that— well, he was in custody. He was under arrest in effect at that time. He was in handcuffs. And nothing he could do about that. After the basis for him being in handcuffs was eliminated, that is after the search showed he was not at risk, the police no longer had a[sie] unfettered basis for questioning.
And when you have someone in handcuffs, that is intimidating enough so that merely saying the Miranda warnings did not clear the taint. There was no probable cause for his continued arrest at the time that the questioning occurred.
I am going to grant the motion on that ground.

The district court’s reasoning has been thoroughly rejected by state and federal courts. See U.S. v. Miller, 974 F.2d 953, 957 (8th Cir.1992) (“[A] police officer’s use of handcuffs can be a reasonable precaution during a Terry stop.”); U.S. v. Bautista, 684 F.2d 1286, 1289-90 (9th Cir.1982) (Initial handcuffing of suspects did not convert investigatory stop into complete arrest where initial handcuffing was not excessive, it was not unreasonable for officer to take adequate protective measures before remaining with two men suspected of unarmed bank robbery, there may have been third robber in the vicinity, and handcuffs eliminated possibility of assault or escape attempt during questioning.); U.S. v. Taylor, 716 F.2d 701, 709 (9th Cir.1983) (Handcuffing and frisk of codefendant who was in defendant’s truck which was subject of investigatory stop was justified after codefendant had disobeyed order to raise his hands and had made furtive movements inside truck where his hands could not be seen and, further, having codefen-dant lie down and be handcuffed during frisk did not convert it into an arrest necessitating probable cause.); U.S. v. Kapperman, 764 F.2d 786, 791 (11th Cir.1985) (Neither handcuffing nor other restraints will automatically convert a Terry stop into a de facto arrest requiring probable cause, for just as probable cause to arrest will not justify using excessive force to detain a suspect, use of a particular method to restrain person’s freedom of movement does not necessarily make police action tantamount to an arrest; inquiry in either context is reasonableness.); U.S. v. Crittendon, 883 F.2d 326, 329 (4th Cir.1989) (Fact that burglary suspect was handcuffed during frisk did not turn encounter into arrest; officer could anticipate that he might be required to go to aid of fellow officers and that suspect, like his companion, might attempt to flee.); State v. Munson, 594 N.W.2d 128, 137 (Minn.1999) (“[Bjriefly handcuffing a suspect while the police sort out the scene of an investigation does not per se transform an investigatory detention into an arrest.”); People v. Soun, 34 Cal.App.4th 1499, 40 Cal.Rptr.2d 822, 831-33 (1995) (Initial seizure of defendant which occurred when police officers stopped car in which defendant was riding was detention, not de facto arrest, for purposes of determining whether warrantless seizure of defendant was constitutional, even though defendant was removed from car at gunpoint by large number of police officers, forced to lie on the ground, handcuffed, and placed in patrol car; since police officer who initiated detention was aware defendant and others in car were suspects in homicide and were probably armed, police officers were authorized to make “felony stop” of car in order to protect officers’ personal safety.); Thomas v. Com., 16 Va.App. 851, 434 S.E.2d 319, 323 (1993) (Brief, complete deprivations of suspect’s liberty, including handcuffing, do not convert stop and frisk into arrest so long as methods of restraint used are reasonable to the circumstances.).

[¶ 32] The evidence reflects that law enforcement proceeded reasonably. The detailed tip was borne out in detail. An individual in a black vehicle from New Town arrived at Smith’s place of work. Smith and the person then traveled to a residence in Williston. Smith then went inside for twenty minutes. A large sum of money was found on Smith. Initially, there were two unsearched vehicles in immediate proximity, as well as a garage/shop and a residence. Another individual, the occupant of the residence, was then outside. Other officers were called to the scene. The search of Smith’s vehicle yielded drug paraphernalia. All this happened in about fifteen minutes. The officer testified that they were concerned about their safety while they tried to sort things out. The district court held that as soon as they frisked the defendant, there was no basis to keep him handcuffed. Whether the officers acted reasonably is a question of law that we review de novo. State v. Higgins, 2004 ND 115, ¶ 7, 680 N.W.2d 645. The actions of law enforcement in keeping the defendant handcuffed were wholly reasonable under the circumstances. That he was not armed does not mean the defendant posed no danger. He could have had access to a weapon in either Smith’s or Raad’s vehicle or in Raad’s shop/garage. Further search discoveries could have led to physical action by the defendant.

[¶ 33] Because the district court was mistaken as to the law, the officers acted reasonably, and the principle advanced by the district court and the majority unreasonably imperils officer safety, I would reverse and remand for trial.

[¶ 34] DALE V. SANDSTROM, MARY MUEHLEN MARING.


source: Caselaw Access Project

author: KAPSNER, Justice. VANDE WALLE, Chief Justice, SANDSTROM, Justice,

license: Public Domain

text:
    2008 ND 96
    STATE of North Dakota, Plaintiff and Appellee v. $33,000.00 UNITED STATES CURRENCY, Defendant and Lam Bao Tran, Owner, Defendant and Appellant.
    No. 20070336.
    Supreme Court of North Dakota.
    May 15, 2008.

      Gary E. Euren (argued), Assistant State’s Attorney, and Charles J. Sheeley (on brief), third-year law student, appearing under the Rule on the Limited Practice of Law by Law Students, Courthouse, Fargo, ND, for plaintiff and appellee.
    Brian W. Nelson (argued), Brian W. Nelson & Associates, Fargo, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Lam Bao Tran, as the owner of $33,000 United States currency, appeals a district court order denying his motion to vacate a default judgment that forfeited $33,000. We affirm.

I

[¶ 2] In July 2007, law enforcement officers searched Tran’s residence and seized various controlled substances and $33,000 in cash. The State brought an action for forfeiture of the $33,000, filing a summons and complaint on August 17, 2007. A deputy from the Cass County Sheriffs Office executed a Sheriffs Return, indicating the summons and complaint had been served upon Tran’s brother, who lived at Tran’s residence, on August 15, 2007. The State did not serve the summons and complaint upon the attorney the State knew to be representing Tran in the underlying criminal matter. Tran did not reply to the summons and complaint. On September 14, 2007, the State filed an application for default judgment with the district court; neither Tran nor his criminal defense attorney were served with the State’s affidavit alleging default. The district court granted the application for default judgment on September 21, 2007. The State mailed Tran and his criminal defense attorney notice of entry of the default judgment on September 26, 2007.

[¶ 3] On October 10, 2007, Tran moved the district court to vacate the default judgment. In his motion to vacate the judgment at the district court, Tran argued he had not yet been officially charged with any crime allegedly related to the money; his attorney for the underlying criminal matter had not been served with the summons and complaint for the forfeiture; the State should have provided Tran’s attorney with the summons and complaint under Tran’s N.D.R.Crim.P. Rule 16 criminal discovery request; English was not Tran’s first language and he did not comprehend the summons and complaint; and the seizure of the cash occurred during an illegal search of Tran’s home. For these reasons, Tran argued the default judgment should be vacated.

[¶ 4] The district court denied Tran’s motion to vacate the default judgment, finding the forfeiture statute did not require a conviction, preliminary hearing, or arraignment. The district court found service of the summons and complaint was proper, despite the fact that they were written in English, rather than Tran’s first language. The district court held the summons and complaint were properly served upon Tran at his residence, rather than upon the attorney representing Tran in the criminal matter. The district court found a N.D.R.Crim.P. Rule 16 discovery request was not tantamount to a discovery request in a related, but separate, civil proceeding and did not constitute an “appearance” for the purposes of Rule 55(a), N.D.R.Civ.P. Finally, the district court found Tran’s allegation that his $33,000 had been unlawfully seized under the Fourth Amendment did not affect the State’s ability to bring a forfeiture proceeding, and the allegation of illegality was immaterial under a Rule 55(a) analysis.

[¶ 5] On appeal, Tran argues the district court’s order denying his motion to vacate the default judgment was an abuse of discretion because Tran appeared in the forfeiture action when his attorney filed a criminal discovery request, making default judgment improper. Tran argues the summons, complaint, and notice of entry of default judgment did not provide sufficient notice. Tran further argues that even if his discovery request did not constitute an appearance for the purposes of default judgment, Tran’s reliance on his attorney to take care of matters related to the criminal case would constitute mistake, inadvertence, or excusable neglect. Tran argues he had a meritorious defense to the forfeiture action. For these reasons, Tran argues the district court erred in failing to allow Tran to reopen the default judgment.

II

[¶ 6] “We review the trial court’s denial of a motion for relief from a default judgment to determine whether the court abused its discretion.” Citibank v. Reikowski, 2005 ND 133, ¶ 6, 699 N.W.2d 851 (citing Fed. Land Bank of St. Paul v. Lillehaugen, 370 N.W.2d 517, 518 (N.D.1985)). An abuse of discretion occurs when a trial court acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law. Citibank, at ¶ 6 (citing US Bank Nat’l Assoc. v. Arnold, 2001 ND 130, ¶ 21, 631 N.W.2d 150). “Because we prefer decisions on the merits, trial courts should be more lenient when entertaining motions to vacate default judgments as distinguished from judgments entered after a trial on the merits.” Id. (citing Suburban Sales & Serv., Inc. v. District Court of Ramsey County, 290 N.W.2d 247, 252 (N.D.1980); Perdue v. Sherman, 246 N.W.2d 491, 495-96 (N.D.1976)). “As Wilson v. Wilson, 364 N.W.2d 113 (N.D.1985), indicates, we are more inclined to reverse an order denying vacation of a default judgment than one granting vacation, because we favor trials on the merits.” Workers Comp. Bureau v. Kostka Food Serv., Inc., 516 N.W.2d 278, 280 (N.D.1994).

A

[¶ 7] Under the North Dakota Rules of Civil Procedure, a district court may enter default judgment against a party who fails to plead or “otherwise appear.” N.D.R.Civ.P. 55(a). There is no dispute in this case regarding Tran’s failure to plead; following the service of the summons and complaint, Tran did not answer within the 20-day time period allotted for answer and did not file any motions for approximately three weeks after the default judgment had been entered. Tran argues, however, that he “otherwise appeared” because he submitted a criminal discovery request in the underlying criminal case.

[¶ 8] Whether an appearance has been made for purposes of Rule 55(a) of the North Dakota Rules of Civil Procedure is a question of law. Hatch v. Hatch, 484 N.W.2d 283, 286 (N.D.1992). Questions of law are fully reviewable on appeal. US Bank Nat’l Assoc, v. Arnold, 2001 ND 130, ¶ 12, 631 N.W.2d 150. “If the district court’s interpretation of disputed facts is not clearly erroneous, we fully review whether the facts support the ultimate legal conclusion of an appearance.” US Bank, at ¶ 12. Here, there are no disputed facts and therefore no allegation that the district court’s factual findings are clearly erroneous. Rather, this issue turns solely on a question of law: whether a Rule 16, N.D.R.Crim.P., discovery request constitutes an appearance for a separate civil forfeiture proceeding.

[¶ 9] An appearance has been defined as “any response sufficient to give the plaintiff or his or her attorney notice of an intent to contest the claim.” Throndset v. Hawkenson, 532 N.W.2d 394, 397 (N.D. 1995) (citation omitted). Rule 1(b)(4)(B), N.D.R.Crim.P., expressly provides that rules of criminal procedure “do not apply to ... forfeiture of property for violation of a statute of this state.” Further, N.D.C.C. § 29-31.1-04(1) provides “[forfeiture is a civil proceeding not dependent upon a prosecution for, or conviction of, a criminal offense and forfeiture proceedings are separate and distinct from any related criminal action.” Tran’s argument that the Rule 16 criminal discovery request constituted an appearance in the “separate and distinct” forfeiture proceeding is incorrect. A discovery request in a related, but separate, criminal proceeding is not a “response sufficient to give the plaintiff or his or her attorney notice of an intent to contest the [civil] claim.” Throndset, 532 N.W.2d at 397.

[¶ 10] Case law in North Dakota defines appearance broadly, but even so, the appearance must take place in the context of the proceeding at issue; we find no North Dakota case law suggesting that an appearance in a related, but wholly separate, proceeding constitutes an appearance for both proceedings. See Fed. Land Bank of St. Paul v. Lillehaugen, 370 N.W.2d 517, 519 (N.D.1985) (finding an appearance when personal contact was made at the time the defendant visited the plaintiff in person to receive the summons and complaint); Svard v. Barfield, 291 N.W.2d 434, 437 (N.D.1980) (concluding a meeting attended by the defendant with the plaintiffs for the purpose of negotiating the dispute involved in the lawsuit was an appearance); Perdue v. Sherman, 246 N.W.2d 491, 493 (N.D.1976) (holding a conversation between the defendant and the plaintiffs attorney constituted an appearance).

[¶ 11] The criminal discovery request shows Tran’s intent to contest or participate in the resolution of the criminal charges, but does not put the State on notice that Tran intended to contest the civil forfeiture action. Because civil forfeiture proceedings are separate and distinct from the related criminal charges, the district court did not err in finding Tran’s Rule 16, N.D.R.Crim.P., discovery request did not constitute an appearance under Rule 55(a), N.D.R.Civ.P.

B

[¶ 12] A motion to vacate a judgment under N.D.R.Civ.P. 60(b)(i) lies within the sound discretion of the trial court, and the trial court’s decision will not be disturbed on appeal unless the court abused its discretion. Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 13, 637 N.W.2d 681 (citations omitted). A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Id. “A trial court acts in an arbitrary, unreasonable, or unconscionable manner when its decision is not the product of a rational mental process by which the facts and law relied upon are stated and considered together for the purpose of achieving a reasoned and reasonable determination.” Id.

[¶ 13] Tran argues that because he is only semi-literate and he had retained and was relying upon his counsel for the underlying criminal matter, his failure to read and respond to the complaint constitutes excusable neglect, inadvertence, or mistake. Tran argues he is therefore entitled to vacate the default forfeiture judgment. In his brief, Tran concedes the summons and complaint were properly served upon him because these documents were served on Tran’s brother at Tran’s residence. However, Tran argues he “assumed if any papers were served involving [Tran] then his attorney would receive them and take care of all matters.” Tran does not argue that his attorney had been retained for the civil forfeiture action and that attorney error was the sole cause of the entry of default judgment, which may have provided Tran relief from the judgment under Rule 60(b). See Beaudoin v. So. Texas Blood & Tissue Ctr., 2005 ND 120, ¶ 36, 699 N.W.2d 421 (“Although the district court is correct in noting we are reluctant to attribute a third-party’s errors to an innocent defendant, this fact does not foreclose N.D.R.Civ.P. 60(b)(i) relief when a defendant has personally erred.”); CUNA Mortgage v. Aafedt, 459 N.W.2d 801, 803 (N.D. 1990) (citing King v. Montz, 219 N.W.2d 836, 839-40 (N.D.1974)) (finding a mov-ant’s “failure to timely respond was the result of lawyer error, which we are reluctant to attribute to a client who has not been personally negligent”).

[¶ 14] The fact that Tran ignored the summons and complaint, properly served upon him, does not constitute excusable neglect, inadvertence, mistake, or surprise under Rule 60(b)(i), N.D.R.Civ.P. “ ‘A simple disregard of legal process is, of course, not excusable neglect under the rule.’ ” Royal Indus., Inc. v. Haugen, 409 N.W.2d 636, 638 (N.D.1987) (quoting Bender v. Liebelt, 303 N.W.2d 316, 318 (N.D.1981)). In Royal Industries, Inc. v. Haugen, this Court explained a district court did not abuse its discretion in denying a Rule 60(b)(i) motion to vacate when the party moving to vacate default judgment

completely disregarded service of process, without seeking legal advice, based upon a mere assumption that the matter would be handled in bankruptcy court and that the court would not allow entry of judgment against him personally. We conclude that the trial court did not abuse its discretion in denying the motion.

409 N.W.2d at 638. Like the party moving to vacate default judgment in Royal Industries, Tran completely disregarded service of process and failed to seek the advice of counsel because he assumed his criminal defense attorney would “take care of all matters.” Tran’s disregard of service does not constitute excusable neglect under Rule 60(b)(i). Id. Tran did not review the documents. Nor did he immediately seek the advice of his attorney and timely submit the documents to his attorney for review. The district court did not abuse its discretion in denying Tran’s motion to vacate on this ground.

C

[¶ 15] Unlike Tran, the movant in Royal Industries was a literate and “experienced businessman.” Id. Tran argues the judgment should be vacated because the summons and complaint were served in English, which is not his first language. Tran argues he did not have “actual knowledge and comprehension” of the contents of the summons and complaint, and his lack of ability to understand the contents is a ground to vacate the judgment under Rule 60(b), N.D.R.Civ.P.

[¶ 16] Tran does not cite any law in North Dakota that would require the State to write a summons and complaint in his primary language, Vietnamese, rather than English. Because there is no law supporting this argument, the district court did not abuse its discretion in denying the motion to vacate on this ground. The district court did not act in an arbitrary, unreasonable, or unconscionable manner, and its decision regarding the use of English in the summons and complaint was “the product of a rational mental process by which the facts and law relied upon are stated and considered together for the purpose of achieving a reasoned and reasonable determination.” Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 13, 637 N.W.2d 681. The district court considered and analyzed Tran’s argument, but Tran did not present the district court with any law that would support the necessity of serving him in Vietnamese. The district court did not abuse its discretion in denying the motion to vacate on this ground, because the “facts and law relied upon are stated and considered together” in denying Tran’s motion. Gepner, at ¶ 13.

D

[¶ 17] Tran next argues he asserted a meritorious defense, which under N.D.R.Civ.P. 60(b) constitutes a ground to vacate the default judgment against his $33,000. “When a defaulting party has a meritorious defense and timely seeks relief, ‘doubt, if any, should be resolved in favor of the motion to set aside the judgment.’ ” Murdoff v. Murdoff, 517 N.W.2d 402, 404 (N.D.1994) (quoting CUNA Mortgage, 459 N.W.2d at 803). North Dakota did not adopt the F.R.Civ.P. 55(c), which is the federal rule for setting aside a default judgment if the movant can show a meritorious defense. See N.D.R.Civ.P. 55, Explanatory Note. Instead, North Dakota permits a party moving to vacate judgment to raise a meritorious defense under Rule 60(b), N.D.R.Civ.P. N.D.R.Civ.P. 55, Explanatory Note. Interpretations of the Federal Rules of Civil Procedure are not binding, but are considered persuasive, when interpreting similar North Dakota Rules of Civil Procedure. E.g., N.D.R.Civ.P. 1, Explanatory Note. Therefore, the federal interpretation of F.R.Civ.P. 55(c), with regard to stating a meritorious defense to set aside a default judgment, is helpful in discerning what is required for such a defense in North Dakota.

[¶ 18] Generally, under F.R.Civ.P. 55(c), the party moving to set aside the judgment must not only state the basis of the meritorious defense, but must deliver something more than “[a] mere conclusory statement that such a defense exists” and such a conclusory statement, without more “will generally be regarded as insufficient for this purpose.” 29 A.L.R. Fed. 7, at § 6(a) (1976). See also 49 C.J.S. Judgments § 405 (1997) (“The requisite meritorious defense must be set forth in sufficient detail ... to permit the court to determine whether or not it is meritorious and sufficient.... The allegations set forth to establish a meritorious defense, for the purpose of setting aside a default judgment, must be more than bare legal assertions; they must counter the allegations in the complaint with specific legal grounds substantiated by a basis of credible fact.”).

[¶ 19] Tran argues his two meritorious defenses are (1) the alleged illegality of the search and seizure leading to the forfeiture and (2) Tran earned and kept the money not in connection with any drug transaction. In stating these defenses, both in the affidavit he submitted to the district court and in his appellate brief, Tran does not provide specific, credible fact regarding the alleged illegality of the warrant. He merely states, in his affidavit accompanying his motion to vacate judgment, the “money was taken as a result of an illegal search and seizure which was in excess of the warrant.” His brief repeats this position and does not deliver additional factual details regarding the alleged illegality of the search warrant. Regarding the defense that the money was not made or kept in connection with any drug transaction, Tran states, “I have earned this money over the years.” Tran did not provide additional facts in his motion to vacate or in his appeal to substantiate this defense. Tran has not provided enough credible facts or specific legal grounds to vacate the judgment. While we recognize that if there is any doubt that the defenses may prevail, the judgment should be vacated, Murdoff, 517 N.W.2d at 404 (citations omitted), Tran has provided nothing more than bare assertions, which do not give rise to an allegation of a meritorious defense under N.D.R.Civ.P. 60. The district court did not err in denying Tran’s motion to vacate on these grounds.

[¶ 20] We affirm the order of the district court.

[¶ 21] MARY MUEHLEN MARING and DANIEL J. CROTHERS, JJ., concur.

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 22] I reluctantly agree with the result reached by the majority opinion. I write to note that it is unfortunate our rules do not require service of the motion for default judgment upon a defendant who has not appeared. Under Article VI, § 3 of the North Dakota Constitution, this Court has the authority to promulgate rules of procedure. A proposal to amend N.D.R.Civ.P. 55 to require service of the motion on the defendant regardless of whether or not there has been an appearance has been rejected for reasons which I do not understand. Over the years there have been several cases in which this Court has struggled with whether or not an appearance has been made in an action such as to require service of a motion for default. E.g., Throndset v. Hawkenson, 532 N.W.2d 394 (N.D.1995); Hatch v. Hatch, 484 N.W.2d 283 (N.D.1992); Wallwork Lease & Rental Co. v. Schermerhorn, 398 N.W.2d 127 (N.D.1986); Federal Land Bank v. Lillehaugen, 370 N.W.2d 517 (N.D.1985); Svard v. Barfield, 291 N.W.2d 434 (N.D.1980); Perdue v. Sherman, 246 N.W.2d 491 (N.D.1976).

[¶ 23] If the reason for opposing the requirement to serve the application for default is cost or inconvenience, the time, effort and money expended by the parties at the trial court level on the motion to vacate the default judgment and the time, effort and money expended in this court on the appeal from the order on the motion or on the appeal from the default judgment far outweigh the cost and inconvenience of mailing a notice of motion for default judgment to the defendant. That is especially true when this Court ultimately decides notice of application for default judgment should have been given and the matter is remanded to the trial court. E.g., Svard v. Barfield.

[¶ 24] I cannot speak for my colleagues who have not joined this writing. But I believe we could better use our time dealing with matters of substance rather than deciding whether or not a default judgment should have been vacated because a telephone call was an appearance, Perdue v. Sherman, a meeting in a restaurant was an appearance, Svard v. Barfield, or whether notice should have been given for some other reason, particularly when a simple rule change could avoid many of those issues with seemingly little cost or inconvenience to the plaintiff and save the plaintiff the much greater cost of defending an expensive appeal even when the plaintiff prevails on appeal.

[¶ 25] If the reason for not requiring the plaintiff to serve notice of motion for default on the defendant is a fear the defendant might then appear with a meritorious defense, I firmly disagree with that reason. It flies in the face of our often expressed position that we prefer decisions on the merits, Perdue v. Sherman, and, if that is the reason, it does not reflect well on our system of justice.

[¶ 26] I understand the belief that a defendant properly served with the summons and complaint who purposefully chooses not to answer should not be given another opportunity to defend. On the other hand not all failures to answer are purposeful and requiring service of the application for default judgment would serve to distinguish between the purposeful and the unwitting, unknowing or, yes, negligent failure to respond to the summons and complaint. Although requiring service of the motion for default judgment might also give the scofflaw another opportunity to appear and respond, that is preferable to me if the alternative is denying the unwitting, unknowing or negligent the opportunity to advance their defense to the complaint.

[¶ 27] Of course, Rule 55 does not prohibit the plaintiff from serving notice of the motion for default judgment on a defendant who has not appeared, and I expect many lawyers representing plaintiffs do serve the notice to avoid the expense and delay of dealing with the issues raised by this appeal or the issues in the cases cited above. Unfortunately the plaintiff in this case chose not to serve notice of the motion and that notice may have avoided this appeal. If our rule required service Tran might have made the appearance to present the defense he now asks us to allow him to do. On the other hand he might not have responded to the notice of application for default. However, the failure to appear after service of the application for default judgment makes a much less compelling case.

[¶ 28] Nevertheless, there was no appearance in this instance, even under our liberal interpretation of what constitutes an appearance for purposes of requiring service of notice of the motion for default judgment. In view of the current status of our rule I must agree with the conclusion reached by the majority opinion.

[¶ 29] Under the circumstances of this case had I been the trial judge I might nevertheless have granted the motion to vacate the default judgment for the reasons urged by Tran. But, I was not the trial judge and, under our standard of review, I cannot conclude there was an abuse of discretion by the trial judge in this case.

[¶ 30] GERALD W. VANDE WALLE, C.J.

SANDSTROM, Justice,

concurring specially.

[¶ 81] The State did not serve Tran or his criminal defense attorney with the application for default, but both were subsequently served with the notice of entry of default judgment. Under N.D.R.Civ.P. 55, the State was not required to serve the application for default judgment upon Tran or his criminal defense attorney. Such service upon both Tran and his attorney, however, is not barred by any procedural or ethical rule when the attorney is known to be representing the party in a related criminal proceeding. While the State is not required to serve the application for default judgment, it is not prohibited from serving these documents on both the defendant and the defendant’s attorney. Because serving the application for default judgment upon both Tran and his attorney would provide additional notice of the State’s claim, the State should serve the application for default judgment under similar circumstances even though it is not required under N.D.R.Civ.P. 55.

[¶ 32] The actions of the State in this case may be perceived as “sharp practice” and thus tend to undercut respect for the rule of law.

[¶ 33] Dale V. Sandstrom


author: KAPSNER, Justice.

text:
    2008 ND 91
    Raymond VOISINE, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20070313.
    Supreme Court of North Dakota.
    May 15, 2008.

      Raymond Voisine (argued), pro se, Jamestown, ND, petitioner and appellant.
    Walter M. Lipp (argued), State’s Attorney, McClusky, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Raymond Voisine appeals a district court order denying his petition for post-conviction relief. We reverse the order of the district court and vacate the June 2, 2005, criminal judgment and commitment revoking Voisine’s probation.

I

[¶ 2] In October 2004, Voisine pled guilty to one count of gross sexual imposition under a plea agreement. For this offense, the district court sentenced Voi-sine to serve five years’ imprisonment, with four years suspended. The district court further ordered Voisine be placed on five years’ supervised sex offender probation. During the suspended period of his sentence, Voisine’s probation was subject to several conditions set forth in an attachment to the criminal judgment and commitment. The district court amended the criminal judgment and commitment in March 2005; the amended criminal judgment, like the original criminal judgment, provided that one of the conditions of Voi-sine’s probation required Voisine successfully follow and complete a sex offender treatment program and admit responsibility for his offense as part of the treatment requirements. However, this condition did not specifically state the sex offender treatment program must be successfully completed prior to Voisine’s release. At the sentencing hearing, the district court told Voisine:

You will serve the balance of your time at the North Dakota State Penitentiary. Upon your release you will have the following conditions of probation:
You shall attend, participate in, and cooperate with and successfully follow and complete all sex offender treatment program rules and requirements and you must admit responsibility for your offenses as part of the treatment requirements.

(Emphasis added).

[¶ 3] In May 2005, while Voisine was still imprisoned, the State petitioned the district court to revoke Voisine’s probation, alleging Voisine had failed to comply with the probation condition related to successful completion of a sex offender treatment program. In particular, the State alleged Voisine failed to successfully complete treatment because he did not accept responsibility for or admit to the offense during the treatment program while in prison. The district court conducted a revocation hearing in June 2005.

[¶ 4] At the revocation hearing, Voisine stated he attended sex offender treatment while incarcerated, but admitted he failed to successfully complete the treatment while in prison. The district court revoked Voisine’s probation at the hearing and resentenced Voisine to. serve ten years’ imprisonment, with five years suspended, and to five years’ supervised probation following Voisine’s release. Voisine did not appeal the criminal judgment and commitment that revoked his probation and resentenced him.

[¶ 5] In November 2006, Voisine filed a petition for post-conviction relief, arguing his original sentence and probation were unlawfully revoked. Following the State’s motion to dismiss Voisine’s petition, the district court entered an order summarily denying Voisine’s post-conviction relief petition.

[¶ 6] Voisine appeals the order denying his petition for post-conviction relief, arguing the district court erred when it revoked his probation for a probation violation that occurred while Voisine was in prison, rather than on probation.

II

[¶ 7] “Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure.” State v. Steen, 2004 ND 228, ¶ 8, 690 N.W.2d 239 (citing Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687 N.W.2d 454; Ernst v. State, 2004 ND 152, ¶ 6, 683 N.W.2d 891). “The petitioner for post-conviction relief has the burden of establishing a basis for relief.” Steen, at ¶ 9 (citing Ernst, at ¶ 6). Here, Voisine alleges the basis for relief is the unlawful revocation of his probation.

[¶ 8] Voisine premises his post-conviction relief claim upon the argument that his revocation was unlawfully revoked. Voisine did not appeal the order revoking his probation. Instead, he appeals the order denying his petition for post-conviction relief. Under N.D.C.C. § 29-32.1-12(2), the State may raise, as an affirmative defense, misuse of process. Misuse of process occurs in three situations, one of which is relevant here:

[Fjailure to take a direct appeal bars relief in a post-conviction action under Chapter 29-32, N.D.C.C., on the ground of abuse of process as to factual and legal contentions that the post-conviction applicant raised and litigated at the time of the original trial court proceedings and which he deliberately or inexcusably failed to pursue on direct appeal.

Clark v. State, 1999 ND 78, ¶ 16, 593 N.W.2d 329 (quoting State v. Willey, 381 N.W.2d 183, 186 (N.D.1986)) (alteration in original). Voisine did not take a direct appeal from the order revoking his probation. In this regard, his post-conviction relief claim could be construed as misuse of process because Voisine failed to pursue the alleged unlawful revocation of probation on direct appeal from the order revoking his probation.

[¶ 9] However, abuse of process is an affirmative defense under N.D.C.C. § 29-32.1-12(3). The State must plead misuse of process and bears the burden of proof. N.D.C.C. § 29-32.1-12(3). At the district court, Voisine’s response to the State’s motion to dismiss his petition for post-conviction relief asserted his claim was not barred by either res judicata or misuse of process, affirmative defenses listed in N.D.C.C. § 29-32.1-12(3). The State did not address this assertion at the district court. Nor does the State address this issue on appeal. As a result, where Voisine’s complaint may have been barred for misuse of process, the State’s failure to plead this defense requires this Court to review the merits of Voisine’s appeal from the order denying his petition for post-conviction relief.

[¶ 10] Voisine argues a district court may not revoke probation for violations occurring while the defendant is incarcerated because the terms of the probation he dormant until the defendant is actually released on probation. Under Voisine’s theory, no probation violation could occur while a defendant is incarcerated. Voisine is incorrect in his reading of the law. Whether a defendant is incarcerated does not control whether a term of a defendant’s probation may be applicable while the defendant is in prison. See Davis v. State, 2001 ND 85, ¶ 7, 625 N.W.2d 855 (citing State v. Shepherd, 554 N.W.2d 821, 822-23 (N.D.1996)) (“[W]e have concluded a trial court may require a defendant to successfully complete a sex offender treatment program while in prison as a prior condition of probation.”). Rather, the language of the sentence including the conditions of probation controls whether a term of probation is applicable to a prisoner or only applicable once a defendant has been released from prison on probation. Id. at ¶¶ 7-8.

[¶ 11] Section 29-32.1-09(1), N.D.C.C., provides that a district court may summarily deny an application for post-conviction relief, if there is no genuine issue of material fact and as a matter of law the moving party is entitled to judgment. Davis, at ¶ 5 (citing Clark v. State, 1999 ND 78, ¶ 5, 593 N.W.2d 329). “Our review of a summary denial of an application for post-conviction relief is akin to our review of a denial of summary judgment under N.D.R.Civ.P. 56.” Davis, at ¶ 5 (citing Abdi v. State, 2000 ND 64, ¶ 8, 608 N.W.2d 292). “The ‘party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding, and is entitled to an evidentia-ry hearing if a reasonable inference raises a genuine issue of material fact.’ ” Id. (quoting Syvertson v. State, 2000 ND 185, ¶ 13, 620 N.W.2d 362). A district court’s findings of fact in a post-conviction proceeding will not be disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). State v. Steen, 2004 ND 228, ¶ 8, 690 N.W.2d 239 (citations omitted).

[¶ 12] However, questions of law are fully reviewable on appeal, and the interpretation of a condition of probation is a question of law. State v. McAvoy, 2007 ND 178, ¶ 11, 741 N.W.2d 198 (citing State v. Wardner, 2006 ND 256, ¶22, 725 N.W.2d 215). “Conditions of probation are strictly construed in favor of the offender; however, the conditions are construed as mandatory because of the duty to regulate a probationer’s activities to help in his or her rehabilitation and at the same time to guard against continued criminal behavior.” McAvoy, at ¶ 11 (citation omitted).

[¶ 13] There are no disputed facts in this case; Voisine concedes he failed to successfully complete sex offender treatment while in prison. The legal, rather than factual, issue is whether his amended criminal judgment and commitment, which contained the terms of his probation, required his sex offender treatment to be successfully completed prior to release, or whether sex offender treatment compliance and completion became effective only after his release from prison and while on supervised probation. If the latter, then Voisine’s probation was unlawfully revoked and Voisine is entitled to relief under N.D.C.C. § 29-32.1-01(l)(g).

[¶ 14] In Davis v. State, this Court found a post-conviction relief petitioner’s probation was not unlawfully revoked. 2001 ND 85, ¶ 8, 625 N.W.2d 855. In Davis, one of the conditions of the petitioner’s probation stated that he must “ ‘[a]t-tend, participate in, cooperate with and successfully complete ... the sex offender treatment program at the North Dakota State Penitentiary.’” Id. (alterations in original and emphasis added). Further, Davis was told by the district court at a sentencing hearing that if he did not complete the rehabilitation program and was subject to release, the failure to complete the treatment would be a violation of probation and Davis would be subject to probation revocation before he was released from incarceration. Id. This Court held the revocation was lawful because “Davis admitted he did not complete the program, and both the Criminal Judgment and the trial court’s statements make it clear he was required to complete the program as a prior condition to probation.” Id. This Court further found Davis’s probationary condition to be unambiguous and upheld the revocation of his probation, even though the probation violation occurred while Davis was incarcerated.

[¶ 15] Here, condition 13 of the amended criminal judgment and commitment dated March 30, 2005, which provides Voi-sine’s probation requirements regarding sex offender treatment, reads:

You shall attend, participate in, cooperate with and successfully follow and complete all sex offender treatment program rules and requirements and admit responsibility for your offense(s) as part of the treatment requirements. You shall attend aftercare if recommended by the Probation Officer or treatment staff.

Unlike the probationary condition in Davis, Voisine’s probationary condition does not provide Voisine’s treatment must be successfully completed, or even attended, while “at the North Dakota State Penitentiary.” The plain language of Voisine’s probationary condition does not require attendance, participation, cooperation, or completion of a sex offender treatment program while Voisine was incarcerated. Even if the language in this condition could be construed to be ambiguous, Voi-sine could not be found to have violated this condition because “[e]onditions of probation are strictly construed in favor of the offender[.]” McAvoy, 2007 ND 178, ¶ 11, 741 N.W.2d 198 (citation omitted). The district court erred in reading Voisine’s sex offender treatment program condition to apply while Voisine was incarcerated, rather than when he is released on probation.

[¶ 16] In its order denying Voi-sine’s petition for post-conviction relief, the district court also stated the sentencing court “did not specifically order [ ] Voisine to complete the sex offender treatment program while at the penitentiary!,]” but that ‘Voisine attended the sex offender treatment program at the apparent direction of the department of corrections.” We find no authority permitting the Department of Corrections to alter an offender’s probation conditions.

[¶ 17] A review of the sentencing transcript and the plain language of Voisine’s conditions of probation unambiguously provide Voisine’s conditions of probation, unlike Davis’s, did not become effective until Voisine was released. For these reasons, the State was not entitled to judgment as a matter of law. Voisine’s probation was unlawfully revoked, and the district court erred in denying the petition. We reverse the district court order denying his petition for post-conviction relief. The criminal judgment and commitment dated June 2, 2005, is vacated.

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