author: SANDSTROM, Justice.

text:
    2005 ND 178
    Donna BJERKLIE, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee.
    No. 20050111.
    Supreme Court of North Dakota.
    Oct. 18, 2005.

      Steven L. Latham, Wheeler Wolf, Bismarck, N.D., for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, N.D., for ap-pellee.
   SANDSTROM, Justice.

[¶ 1] Donna Bjerklie appeals a district court judgment affirming Workforce Safety and Insurance’s (“WSI”) order discontinuing her disability and rehabilitation benefits after an alleged second instance of noncompliance with vocational rehabilitation requirements. We affirm, concluding that a claimant has not shown good cause for failure to attend a scheduled medical assessment when the claimant has a reasonable opportunity to inform WSI why she cannot or will not attend and fails to do so.

I

[¶ 2] Bjerklie injured her right arm on the job in 1991 while employed by North Dakota State University. WSI accepted her claim and began paying her disability benefits. Bjerklie’s injury lead to “reflex sympathetic dystrophy,” also known as “complex regional pain syndrome.” As part of Bjerklie’s treatment, her physician had prescribed several medications, some of which allegedly affect her ability to drive safely. Bjerklie first failed to comply with vocational rehabilitation requirements in 2002 when she refused to sign a WSI release allowing WSI to obtain her college transcripts. She ultimately signed the release, and her benefits were reinstated.

[¶ 3] On December 9 and 10, 2003, WSI notified Bjerklie she was to attend an independent medical examination (“IME”) on January 12, 2004, in Fargo. Attending the IME would have required Bjerklie to travel from Bismarck to Fargo. On December 26, she wrote to WSI, stating, “I am unable to go to Fargo for IME scheduled for Jan[uary] 12, 2004.” WSI replied on January 6, 2004, asking her why she could not attend and warning her that if she did not have good cause to miss the IME, her benefits would be discontinued. She replied by letter on January 9, 2004, citing an inability to travel to Fargo because of her physical condition and medication. Her letter was received by WSI on January 12. She did not attend the IME, and WSI notified her that her benefits were being discontinued. Bjerklie requested a hearing.

[¶ 4] After a hearing, the Administrative Law Judge (“ALJ”) concluded she did not have good cause for failing to cooperate with WSI or appear at the IME and recommended her benefits be discontinued. WSI adopted the ALJ’s recommended findings of fact and conclusions of law. Bjerklie appealed to the district court, which affirmed WSI’s order.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06, 65-10-01, and 28-32-42. Bjerklie’s appeal was timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶ 6] Bjerklie raises three issues on appeal: did WSI act outside its authority by requiring Bjerklie to attend the IME; did WSI act outside its authority by requiring her to travel to Fargo; and did she have good cause to not attend the IME? We decline to address the first two issues because they were not presented at the administrative level. This Court has repeatedly said it will not review an issue that was not properly raised by a party at the administrative level. Unser v. N.D. Workers Comp. Bureau, 1999 ND 129, ¶ 8, 598 N.W.2d 89; see also Alerus Financial, N.A. v. Lamb, 2003 ND 158, ¶17, 670 N.W.2d 351 (“We have repeatedly held that issues not raised in the trial court cannot be raised for the first time on appeal.’ ”) (quoting Questa Res., Inc. v. Stott, 2003 ND 51, ¶ 6, 658 N.W.2d 756).

[¶ 7] Bjerklie argued at oral argument that her Specifications of Error filed with the district court preserved the issues for appeal. The Administrative Agencies Practice Act requires that alleged errors from the administrative level be specifically enumerated for the district court. N.D.C.C. § 28-32^42(4). This Court will summarily affirm the agency’s decision if the appellant “ ‘fail[s] to specifically identify any error with any particularity.’ ” Vetter v. N.D. Workers Comp. Bureau, 554 N.W.2d 451, 454 (N.D.1996) (quoting Maginn v. N.D. Workers Comp. Bureau, 550 N.W.2d 412, 417 (N.D.1996) (Sandstrom, J., concurring specially); Held v. N.D. Workers Comp. Bureau, 540 N.W.2d 166, 171 (N.D.1995) (Sandstrom, J., concurring specially)). None of Bjerklie’s Specifications of Error enumerate as issues whether WSI acted outside its authority by requiring Bjerklie to attend the IME and by requiring her to travel to Fargo. The errors that are enumerated are all related to Bjerklie’s third issue: did Bjerklie have good cause to not attend the IME? Therefore, that is the only issue we will address.

Ill

[¶ 8] The decision of an administrative agency is reviewed as provided in the Administrative Agencies Practice Act, N.D.C.C. § 28-32-46, which provides, in part:

A judge of the district court must review an appeal from the determination of an administrative agency based only on the record filed with the court. After a hearing, the filing of briefs, or other disposition of the matter as the judge may reasonably require, the court must affirm the order of the agency unless it finds that any of the following are present:
1. The order is not in accordance with the law.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.

[¶ 9] On appeal, we review the agency decision in the same manner as the district court. N.D.C.C. § 28-32^19. This court does not “make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). “Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision.” Barnes v. Workforce Safety and Ins., 2003 ND 141, ¶ 9, 668 N.W.2d 290. WSI is responsible for weighing the credibility of witnesses and resolving conflicts in the evidence. Grotte v. N.D. Workers’ Comp. Bureau, 489 N.W.2d 875, 878 (N.D.1992).

[¶ 10] Bjerklie argues she had good cause for failing to attend the IME because no person in her physical condition would attempt to travel from Bismarck to Fargo. WSI argues that because she did not timely notify WSI why she could not attend, she did not have good cause.

[¶ 11] WSI may require a claimant to undergo an IME at any time for a review of the claimant’s diagnosis, prognosis, treatment, or fees. N.D.C.C. § 65-05-28(3). Section 65-05.1-04(6), N.D.C.C., provides, in part:

If, without good cause, the injured employee fails to attend a scheduled medical or vocational assessment, fails to communicate or cooperate with the vocational consultant, or fails to attend a specific qualified rehabilitation program within ten days from the date the rehabilitation program commences, the employee is in noncompliance with vocational rehabilitation.

Thus, under this section, a claimant is in noncompliance if she fails to attend a medical or vocational assessment or fails to communicate or cooperate with WSI. If a claimant engages in two instances of noncompliance without good cause, the claimant’s benefits are permanently discontinued. N.D.C.C. § 65-05.1-04(6).

[¶ 12] Under this Court’s caselaw, a claimant has good cause for not attending an IME if the claimant has a reason that would cause a reasonably prudent person to refuse to attend the IME under the same or similar circumstances. See Fuhrman v. N.D. Workers Comp. Bureau, 1997 ND 191, ¶ 9, 569 N.W.2d 269 (“A claimant has good cause for failing to attend a rehabilitation program if the claimant has a reason that would cause a reasonably prudent person to refuse to attend the rehabilitation program under the same or similar circumstances.”).

[¶ 13] The ALJ’s Recommended Findings of Fact, which WSI adopted, state:

11. The record does not show that Ms. Bjerklie contacted WSI regarding the IME or her need for accommodations at any time prior to the scheduled IME. Ms. Bjerklie’s testimony at the hearing that she did have conversations with WSI is not credible. The only documentation of her contact with WSI is her letter of December 26, 2003, which offered no explanation for her decision not to attend the IME and requested no modifications; and her letter of January 9, 2004, which WSI received on the day of the scheduled IME, and again stated only that she couldn’t drive and any IME should be done in Bismarck. She had no intention of attending the IME and waited until the last possible moment to say so.
12. The greater weight of the evidence does not show that Ms. Bjerklie had good cause for her failure to attend the IME with Dr. Cooper. Ms. Bjerklie says she can’t drive and she has no reliable vehicle. She also says that in 1994 and 1996, nearly ten years ago, WSI paid for and arranged her transportation to medical evaluations and accordingly, it should have known that she needed transportation this time too. First, the evidence does not show that Ms. Bjerklie was physically incapable of getting to Fargo. She admitted at the hearing that she could have tolerated the drive to Fargo, if a friend had driven her. Second, the evidence shows that she did have access to reliable vehicles. In any event, even assuming that Ms. Bjerklie could not drive to Fargo herself; that does not explain why she did not attend the IME. She was specifically advised that if she needed special accommodations she was to contact WSI immediately. She did not. The record shows that had she done so, WSI would have accommodated her, as it had done before, by providing transportation and assistance. Ms. Bjerklie has no explanation for her failure to request accommodations, except to offer contradictory and incredible testimony that on the one hand, WSI should have known she needed accommodations and in the alternative, that she discussed the need for accommodations with WSI and WSI somehow failed her. Neither explanation is supported by the record.
15.... Finally, Ms. Bjerklie’s letter of December 26, 2003, informing WSI that “I am unable to go to Fargo” communicates nothing but her intent not to go and demonstrates her lack of cooperation. WSI has issued four Notices of Intention to Discontinue/Reduce Benefits related to Ms. Bjerklie’s willful failure and deliberate refusal to comply with her vocational rehabilitation plan. Ms. Bjerklie’s actions certainly do not speak to a good faith effort to communicate or cooperate with the vocational consultant.

[¶ 14] The ALJ’s Recommended Conclusions of Law, which WSI also adopted, state:

1. If, without good cause, the injured employee fails to attend a scheduled medical or vocational assessment, fails to communicate or cooperate with the vocational consultant ... the employee is in noncompliance with vocational rehabilitation. N.D.C.C. § 65-05.1-04(6). The greater weight of the evidence does not show that Ms. Bjerklie had good cause for her failure to attend the medical assessment with Dr. Cooper on January 12, 2004. Ms. Bjerklie has not shown that her physical condition or any other circumstance prevented her from going to Fargo. She admitted that she could tolerate a ride to Fargo and she was specifically advised to contact WSI if she needed accommodations. Had she done so, she would have been accommodated. Pursuant to the Notice to Attend Medical Assessment she was obligated to advise WSI of her need for transportation or she was obligated to attend the medical assessment. Her failure to do either is contrary to what a reasonable and prudent person under similar circumstances would have done and does not support a finding of good cause. It constitutes noncompliance with section 65-05.1-04(6) and prevented WSI from assessing her capability to work and her need for rehabilitation.
2. Ms. Bjerklie has, without good cause, failed to communicate or cooperate with the vocational consultant. She refused to attend medical assessments, an FCA, she refused to sign releases, and instructed her college advisor not to speak with the vocational consultant. Most recently, and with regard to her failure to attend the IME scheduled for January 12, 2004, she ignored the direction to contact WSI immediately if she needed accommodation to attend the IME. Instead, she waited until the last possible moment to send a letter stating that she would not attend the IME. She then sent an “explanatory” letter to WSI on Friday, January 9, but she admits that she had no intention of attending the IME. As expected, WSI didn’t receive the letter until Monday, January 12, the date of the IME. Ms. Bjerklie’s actions do not speak to a good faith effort to communicate and cooperate and do, in themselves, constitute noncompliance. See N.[D].C.C. 65-05.1-04.

[¶ 15] WSI’s findings that Bjerklie failed, without good cause, to cooperate with WSI by failing to communicate with the agency or by failing to attend the IME are supported by the record. Bjerklie was originally notified of the IME on December 9 and 10, 2003. Bjerklie sent WSI a very brief letter on December 26, stating merely that she could not attend. WSI responded on January 6, 2004, explaining that without an explanation of good cause, the IME would not be rescheduled. WSI clearly communicated to her on December 9 and 10, 2003, and on January 6, 2004, that she should contact WSI if she needed accommodations. These communications simply relayed to Bjerklie her responsibility under N.D.C.C. § 65-05.1-04(6) to communicate with WSI. Bjerklie was also aware that her benefits would be suspended if she did not attend the IME. A reasonable person would have contacted WSI and stated specifically why he or she could not attend, because there was the risk that the person’s benefits would be discontinued. The record supports the conclusion that had Bjerklie cooperated with WSI by timely contacting the agency, WSI would have made travel arrangements for her, as it had in the past, so she could have attended the IME. Her testimony regarding whether she intended to attend the IME was also inconsistent. She testified that she was willing to attend the IME, but also admitted that as of January 9, 2004, three days before the IME, she did not intend to go. If she had been willing to attend the IME, she would have cooperated with WSI either by contacting the agency for travel accommodations or by finding a way to travel to Fargo herself. The record supports WSI’s finding that she could have traveled to Fargo. She admitted at the hearing that although she could not drive herself to Fargo, she could have tolerated the trip had someone else driven. At the time of the IME, there were four vehicles registered in her name, two of which had current licenses. Instead of timely contacting WSI, Bjerklie waited until January 9 to tell WSI why she could not travel to Fargo. WSI did not receive her letter until January 12, the day of the appointment. Bjerklie’s explanation was untimely. She did not comply with her statutory responsibility to cooperate with WSI nor act as a reasonable person.

[¶ 16] It was disputed at the hearing whether or not Bjerklie telephoned WSI during the exchange of letters, but WSI concluded that Bjerklie’s testimony was not credible and that no calls were made. WSI found the only communications Bjerklie had with WSI were her two letters dated December 26, 2003, and January 9, 2004. Bjerklie was noncooperative when she did not immediately contact WSI and explain why she could not attend. The WSI’s findings of fact are supported by the record and are not against the preponderance of the evidence. We will not substitute our judgment for that of the agency’s. Barnes v. Workforce Safety and Ins., 2003 ND 141, ¶ 9, 668 N.W.2d 290. We hold that when a claimant who has a reasonable opportunity to inform WSI that she cannot attend an IME fails to do so, the claimant’s responsibility to cooperate with WSI has not been fulfilled, the claimant has not communicated properly with WSI, the claimant does not have good cause to not attend the IME, and the claimant is in noncompliance with rehabilitation requirements.

[¶ 17] Bjerklie argues that WSI was on notice that she needed travel assistance to attend medical examinations because WSI had known she needed accommodations to attend examinations in 1994 and 1996. This argument is without merit. Those examinations were eleven and nine years ago. It would be unreasonable to conclude that WSI should have known Bjerklie would need travel accommodations because she had needed assistance nine and eleven years ago. Circumstances change over time. A claimant’s condition could improve or worsen in nine years. Equally, the claimant’s need for assistance could change with it. A claimant must fully and timely communicate with WSI.

IV

[¶ 18] We conclude that a reasonable claimant would cooperate with WSI either by timely contacting WSI to communicate why she could not attend an IME or by attending the IME. Bjerklie, having failed to do so, failed to fulfill her statutory duty to cooperate with WSI and did not have good cause to not attend the IME. WSI’s findings of fact are supported by a preponderance of the evidence. Therefore, we affirm the district court judgment affirming WSI’s discontinuation of Bjerklie’s benefits.

[¶ 19] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, and CAROL RONNING KAPSNER, JJ., concur.

MARY MUEHLEN MARING, J., I concur in the result.


source: Caselaw Access Project

author: KAPSNER, Justice. MARING, Justice,

license: Public Domain

text:
    2005 ND 172
    STATE of North Dakota, Plaintiff and Appellee v. Brent BARTELSON, Defendant and Appellant.
    No. 20040266.
    Supreme Court of North Dakota.
    Oct. 18, 2005.

      Eric P. Baumann, Slorby Law Office, Minot, ND, for defendant and appellant.
    Mark A. Flagstad, Assistant State’s Attorney, Minot, ND, for plaintiff and appel-lee.
   KAPSNER, Justice.

[¶ 1] Brent Bartelson appeals from a criminal judgment entered on a conditional plea of guilty for possessing marijuana with the intent to deliver, reserving his right to review a denial of his motion to suppress the marijuana found in his car. Bartelson claims the marijuana was unconstitutionally seized as a result of an “extremely pretextual” stop. We conclude the district court properly refused to suppress the marijuana obtained from a search of Bartelson’s vehicle, and therefore, affirm the criminal judgment of the district court.

I.

[¶ 2] Around 3:30 p.m., Bartelson was stopped on Highway 83 south of Minot and cited for a tinted window violation by Officer Pat Hudson. An anonymous caller informed the Ward County Sheriffs Office that a vehicle stopped south of Minot on Highway 83 contained a large amount of marijuana. After investigation, Agent Michael Marchus learned that Officer Pat Hudson had recently stopped Bartelson on Highway 83. Marchus knew from previous intelligence that Bartelson transported large amounts of marijuana from Colorado in his vehicle. Marchus learned this information during a federal debriefing when he was informed that an individual known as “Bart” drove a Mazda with the license plate number GRR 105 to transport drugs. Marchus ran the number and discovered the vehicle was registered to Brent Bartelson. Marchus also knew, from two separate sources, that a large amount of marijuana had recently been stolen from Bartelson’s home. Marchus asked Officers Pat Hudson and Kevin Huston to help in the search for Bartelson’s Mazda.

[¶ 3] Traveling in an unmarked vehicle, Marchus was the first officer to locate Bartelson’s car. Marchus followed Bartel-son for a few miles until Officer Kevin Huston caught up to him, followed by Officer Pat Hudson. Approximately forty-two minutes after Bartelson was first stopped by Officer Pat Hudson, Officer Kevin Huston passed Marchus and stopped Bartel-son’s vehicle. Marchus, Hudson, and three other task force officers also arrived at the scene.

[¶ 4] Bartelson explained to the officer that he had just been pulled over for the same tinted window violation. Officer Kevin Huston then went back to his police car to issue a written warning for the violation. As Officer Kevin Huston was writing out the warning, Marchus approached Bartelson and asked if he could search his vehicle. Marchus testified Bar-telson gave his consent to search the vehicle during the stop. A video recording of the stop shows Bartelson assisting the officers with the search.

[¶ 5] When the search began, Officer Pat Hudson checked the driver’s license of Bartelson’s passenger, Lance Cotton. Cotton was arrested for possession of a suspended license. While searching the vehicle, law enforcement found marijuana in the passenger compartment of the car. Bartelson was arrested for possession of marijuana with intent to deliver. Bartel-son moved to suppress the evidence, arguing the stop and resulting search were unconstitutional. The trial court denied the motion. Bartelson conditionally pled guilty, reserving his right to appeal.

II.

[¶ 6] On appeal, Bartelson argues the trial court erred in denying his motion to suppress because the stop of his vehicle was unconstitutional. The State argues the stop was constitutional because the officer had reasonable articulable suspicion that Bartelson was committing a tinted window violation. The State argues whether the stop was pretextual is irrelevant because the officer had observed a traffic violation.

[¶ 7] When reviewing the denial of a suppression motion, we defer to the trial court’s findings of fact. State v. Kitchen, 1997 ND 241, ¶ 11, 572 N.W.2d 106. Although we defer to the trial court’s findings of fact, questions of law are fully reviewable. State v. Overby, 1999 ND 47, ¶ 5, 590 N.W.2d 703. The trial court determined:

Trooper Huston had a valid basis to stop of [sic] Bartelson’s vehicle on the date and time in question. Trooper Huston observed that Bartelson’s vehicle had tinted windows in violation of N.D.C.C. § 39-21-39. That Trooper Huston had been asked by Agent Marehus to locate and stop the described vehicle based on the anonymous tip Marehus had received does not vitiate the reasonableness or validity of the stop.

[¶ 8] The Fourth Amendment of the United States Constitution and Article I, § 8 of the North Dakota Constitution guarantee “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” The United States Supreme Court has stated:

Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a “seizure” of “persons” within the meaning of [the Fourth Amendment]. An automobile stop is thus subject to the constitutional imperative that it not be “unreasonable” under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.

Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (citations omitted). Traffic violations, even if pretextual, provide the requisite probable cause to conduct an investigatory vehicle stop. State v. Loh, 2000 ND 188, ¶ 10, 618 N.W.2d 477. Under Whren, a police officer’s subjective intentions in making a stop are not important as long as a traffic violation has occurred. Whren, 517 U.S. at 813, 116 S.Ct. 1769. As we have noted, “a party ‘is going to have difficulty in using subjective motive to attack an arrest which is otherwise objectively justified by probable cause.’ ” State v. Gregg, 2000 ND 154, ¶ 46, 615 N.W.2d 515 (citing Holland v. City of Portland, 102 F.3d 6, 11 (1st Cir.1996)).

[¶ 9] After learning Officer Pat Hudson had recently stopped Bartelson on Highway 83, Marehus requested Officer Kevin Huston’s help to locate and stop Bartel-son’s vehicle because Marehus had information that Bartelson might be transporting illegal drugs. Officer Kevin Huston testified he observed a black vehicle with tinted windows in violation of N.D.C.C. § 39-21-39. Officer Kevin Huston testified he probably would not have stopped a vehicle for the same violation, at that time, if the vehicle did not match the vehicle description given to him by Marehus. But under Whren, an officer’s subjective intent is not relevant in determining probable cause. Whren, 517 U.S. at 813, 116 S.Ct. 1769.

[¶ 10] In Whren, the United States Supreme Court held that an officer’s actual motivation for initiating a traffic stop did not affect the constitutional reasonableness of a stop based on probable cause. Id. While patrolling a high drug area, plain clothed officers became suspicious of a truck at a stop sign with temporary license plates and young occupants. Id. at 808, 116 S.Ct. 1769. The truck remained at the stop sign for an unusually long time, turned suddenly without signaling, and sped off at an “unreasonable” speed. Id. The officers stopped the vehicle, and large quantities of illegal drugs were found. Id. at 808-09, 116 S.Ct. 1769. The defendants did not dispute the officers had probable cause to believe they had committed a traffic violation. Id. at 810,116 S.Ct. 1769. They argued, because the use of automobiles is so heavily regulated and total compliance is nearly impossible, an officer will be able to catch any person with a violation. Id. This allows officers to use a traffic stop as a means for investigating other possible violations for which there is no probable cause. Id. The defendants argued probable cause should not be the standard for traffic stops, but rather, whether a reasonable police officer would have made the stop for the given reason. Id. The Whren court rejected this argument finding an officer’s subjective intent did not affect the constitutionality of a traffic stop based on probable cause. Id. at 813, 116 S.Ct. 1769. We have similarly held a valid stop is not vitiated because the officer’s actual reason for stopping the vehicle was not adequate. State v. Loh, 2000 ND 188, ¶ 14, 618 N.W.2d 477; Wheeling v. Director, N.D. Dep’t of Transp., 1997 ND 193, ¶ 11, 569 N.W.2d 273; Kohl v. Director, N.D. Dep’t of Transp., 1997 ND 147, ¶ 14, 567 N.W.2d 197; Zimmerman v. N.D. Dep’t of Transp., 543 N.W.2d 479, 483 (N.D.1996).

[¶ 11] Based on Whren, other jurisdictions have also held stops based on probable cause are not invalidated because they are pretextual. In Sanchez v. State, 847 So.2d 1043, 1044 (Fla.Dist.Ct.App.2003), officers received an anonymous tip that Sanchez was transporting cocaine. Law enforcement began surveillance of his home and followed him when he did not take his normal route to work. Id. Local law enforcement requested assistance from other jurisdictions in locating his vehicle. Id. The officers were told to look for a green Suburban possibly carrying drugs and were given the license plate number. Id. Approximately a half hour later, an officer located and followed Sanchez’s vehicle. Id. The officer paced the vehicle at eight miles per hour over the posted speed limit and initiated a stop. Id. Sanchez argued the stop was a pretext, and the “egregious” facts of the officers’ “lying in wait” until he committed a traffic offense took his case outside of the Whren rationale. Id. at 1045. The court disagreed finding the stop did not violate the Fourth Amendment under the objective standard in Whren. Id. at 1045-46 (citing Whren, 517 U.S. at 817-19,116 S.Ct. 1769).

[¶ 12] In Damato v. State, 64 P.3d 700, 702 (Wyo.2003), an officer stopped Damato for exceeding the posted speed limit by seven miles per hour. During the stop, the officer became suspicious of Damato for a number of reasons. Id. After questioning Damato, the officer released him without issuing a speeding citation. Id. The officer radioed dispatch and informed other officers of his suspicions, requesting they look for the vehicle. Id. at 702-03. A second officer received the call and proceeded to look for Damato’s vehicle. Id. at 703. He located the vehicle, turned around, and followed the vehicle looking for probable cause to initiate a stop. Id. The officer stopped Damato for traveling two miles per hour over the seventy-five mile per hour posted speed limit. Id. The court noted that although it was concerned about this “tag-team” approach to stopping vehicles, the stop was valid because the officer had observed a traffic violation. Id. at 705-06.

[¶ 13] Here Officer Kevin Huston had probable cause to stop Bartelson’s vehicle the second time because of the tinted window traffic violation. Officer Kevin Huston testified that it is not uncommon for the same vehicle to be pulled over for the same violation twice in one evening by two different officers. We can imagine a scenario where an officer repeatedly stops the same vehicle for the same violation. In such a situation, the unreasonableness of the officer’s action may violate the Fourth Amendment, but this is not such a case.

[¶ 14] Bartelson’s vehicle was stopped twice by two different officers in a short period of time for the same tinted window violation. At the suppression hearing, Officer Kevin Huston gave unclear testimony about his knowledge of the prior stop of Officer Pat Hudson. He testified he was not aware that the vehicle he stopped was the same vehicle Officer Pat Hudson had stopped:

Q. And you were informed that this is the second time that it had been stopped for tinted windows by Hudson by Underwood?
A. After I stopped the vehicle?
Q. After you stopped it?
A. Correct.
Q. How long after you stopped it?
A. After I talked to Mr. Bartelson.
Q. That’s the first thing you learned after you stopped the vehicle was that he had already been given a citation?
A. That’s correct.

Officer Kevin Huston also testified that he thought it possibly was the same vehicle:

A. It’s possible that that vehicle could have been stopped, yes.
Q. Well, were you aware of that fact?
A. At the — when I met the vehicle and saw it, I wasn’t sure if that was the particular vehicle or not, no. The only description I got was a black 4-door vehicle with tinted windows.

When questioned by defense counsel, he further testified:

Q. So you initiated a stop of a vehicle, presumably what your belief was, believing that this vehicle had just previously been stopped and ticketed for a tinted window violation. That was your knowledge and belief that this vehicle had just been stopped and ticketed for a tinted window violation, and your purpose then was to simply give it another warning for the same tinted window violation?
A. Correct.

[¶ 15] The trial court acknowledged the ambiguity of Officer Kevin Huston’s knowledge of the prior stop, but made no factual findings about Officer Kevin Huston’s credibility in describing his motives for the stops. The trial court relied instead on our prior case law that motivation is irrelevant if probable cause exists citing State v. Loh, 2000 ND 188, ¶ 10, 618 N.W.2d 477: “Traffic violations provide a proper basis for stops, even if pretextual, and evidence discovered during such stops is admissible.”

[¶ 16] Whren does not require us to delve into an officer’s intent. An officer’s probable cause does not disintegrate simply because another police officer had previously stopped the same vehicle for the same violation. It is not unreasonable for officers to request assistance locating a vehicle. It is not unreasonable for different law enforcement officers to stop a vehicle twice for the same tinted window infraction in a short period of time. Officer Kevin Huston observed the traffic violation. He testified: “I saw the vehicle with the tinted windows and made the stop.” Accordingly, the stop of Bartelson’s vehicle was constitutional because Officer Kevin Huston had probable cause to believe Bar-telson was committing a tinted window violation.

III.

[¶ 17] Bartelson argues he did not voluntarily consent to the vehicle search. The State argues that whether Bartelson consented to the search is immaterial because the search was valid as a search incident to the arrest of his passenger, Lance Cotton. When a vehicle’s occupant is arrested, law enforcement can conduct a search of the vehicle’s passenger compartment contemporaneous to the arrest. State v. Tognotti, 2003 ND 99, ¶ 8, 663 N.W.2d 642. A search incident to a valid custodial arrest is an exception to the warrant requirement. Id. at ¶ 7.

[¶ 18] Officer Kevin Huston testified that Lance Cotton was asked for his identification and subsequently arrested for possession of a suspended driver’s license when the “consent search was being conducted.” The officers started the consent search in the vehicle’s trunk. A review of the video tape made during the stop indicates that law enforcement began searching inside the passenger compartment of Bartelson’s vehicle before Cotton’s arrest. The contraband which is the subject of the suppression motion was found in the passenger compartment, although it is unclear whether it was discovered before Cotton’s arrest. We do not need to decide whether the evidence was discovered before or after Cotton’s arrest.

[¶ 19] We have stated, “ ‘[w]here the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa’ so long as the fruits of the search were ‘not necessary to support probable cause to arrest.’ ” State v. Wanzek, 1999 ND 163, ¶ 17, 598 N.W.2d 811 (citations omitted). Because Cotton possessed a suspended driver’s license, the officer had independent probable cause to arrest Cotton before the drug evidence was discovered. Cotton was arrested moments after the search of the passenger compartment began. Therefore, the search was a valid search incident to arrest. We conclude, therefore, the trial court properly refused to suppress the evidence obtained during the search of Bartelson’s vehicle.

IV.

[¶ 20] Because we conclude the stop did not violate the Fourth Amendment and the search was a valid search incident to arrest, the criminal judgment is affirmed.

[¶ 21] DALE V. SANDSTROM and DANIEL J. CROTHERS, JJ., concur.

MARING, Justice,

dissenting.

[¶22] I respectfully dissent. Because I believe the second stop of Bartelson violated the Fourth Amendment, I would reverse the trial court’s denial of Bartelson’s motion to suppress.

[¶ 23] The Fourth Amendment of the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. The United States Supreme Court has stated:

Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a “seizure” of “persons” within the meaning of [the Fourth Amendment]. An automobile stop is thus subject to the constitutional imperative that it not be “unreasonable” under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.

Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (emphasis added, citations omitted). Probable cause to believe a driver has violated a traffic law renders a stop reasonable under the Fourth Amendment, and the evidence obtained from the stop admissible. Kahl v. Director, N.D. Dep’t of Transp., 1997 ND 147, ¶ 12, 567 N.W.2d 197 (citing Whren, 517 U.S. at 810, 116 S.Ct. 1769).

[¶ 24] It is without dispute that the Supreme Court’s central holding in Whren eliminates the argument that a stop violates the Fourth Amendment solely because the actual motivation of the officer was not the traffic violation. I do not question that, if a stop is made based on probable cause, the officer’s subjective motivation for the stop — the pretext — is irrelevant. But, I do not, nor do I believe does the majority, read Whren as eliminating the need to determine if a stop was reasonable under the Fourth Amendment. “We can imagine a scenario where an officer repeatedly stops the same vehicle for the same violation. In such a situation, the unreasonableness of the officer’s action may violate the Fourth Amendment ...” Majority opinion, ¶ 13.

[¶ 25] Implicit in the Whren analysis is a finding that the officer making the stop had probable cause and, using an objective standard, behaved reasonably:

Our cases make clear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.”

Devenpeck v. Alford, 543 U.S. 146, 125 S.Ct. 588, 593-94, 160 L.Ed.2d 537 (2004) (citations omitted) (quoting Whren, at 813, 116 S.Ct. 1769). It is because the circumstances — the facts known to Huston at the time of the second stop — when viewed objectively do not justify a second stop that I cannot agree with the majority.

[¶ 26] As Alford makes clear, there is a distinguishable difference between an arresting officer’s state of mind and the facts that an arresting officer knows. The bright line rule adopted by Whren applies only to the state of mind element and, rightly so, takes courts out of the guessing game of trying to determine an officer’s motivation. I do not see, however, Whren, or any of its progeny, suggesting a court should be blind to facts that are directly applicable to an officer’s determination of whether probable cause exists, or whether the officer’s actions are justified based on those facts.

[¶ 27] The facts surrounding the stop of Bartelson’s vehicle are significantly different from the cases cited by the majority involving pretextual stops based on Whren’s rationale. Hudson originally stopped Bartelson on Highway 83 south of Minot for a tinted window violation. Hudson testified the traffic stop ended around 3:30 p.m. At 3:28 p.m., Marchus received a call notifying him that an anonymous tip indicated a vehicle stopped on Highway 83 south of Minot contained a large amount of marijuana. Marchus contacted local law enforcement and learned Hudson had just released Bartelson on a tinted window violation. Marchus requested area law enforcement to help locate Bartelson’s vehicle. Hudson, Marchus, Huston, and other area law enforcement began looking for the vehicle. At 4:12 p.m., Huston initiated the second stop of Bartelson’s vehicle for the same tinted window violation.

[¶ 28] Marchus testified that before Huston stopped Bartelson, he informed Huston about the anonymous tip, gave him the description of the vehicle — a black four door with tinted windows — and gave him the license plate number. Marchus also informed Huston that Hudson had previously stopped the vehicle for a tinted window violation. Huston testified he knew the vehicle’s description and that it had been stopped earlier that day. Marchus testified he was in constant radio and telephone contact with the officers involved in the search for Bartelson’s vehicle. Traveling in an unmarked vehicle, Marchus was the first officer to locate the vehicle. He then informed Huston he had located the vehicle. Marchus followed behind Bartel-son for a few miles until Huston caught up to him. Huston then passed Marchus, activated his lights, and stopped Bartelson’s vehicle.

[¶ 29] The constitutional violation in the second stop of Bartelson is not the agent’s request for help from local law enforcement to locate the vehicle. In Damato v. State, the Wyoming Supreme Court held that a “tag-team” approach similar to the one used on Bartelson did not invalidate a stop. See Damato, 64 P.3d 700, 705-06 (Wyo.2003). In Sanchez v. Florida, officers were asked to locate a vehicle with specific license plates. 847 So.2d 1043, 1044 (Fla.Dist.Ct.App.2003). Unlike Bartelson, however, Damato and Sanchez were engaged in a violation independent of the initial stop when stopped. The officer in Damato observed the defendant violating the posted speed limit. 64 P.3d at 703 The officer in Sanchez located the defendant and observed a speeding violation. 847 So.2d at 1044. Huston did not observe Bartelson commit an independent or separate traffic violation nor did Huston have probable cause to believe that Bartelson was committing any violation other than the tinted window infraction for which he knew Bartelson had just been stopped. As a general matter, a decision to stop a vehicle is reasonable when probable cause exists to believe a traffic violation has occurred. However, it is simply unreasonable to knowingly stop a vehicle repeatedly for the same, fine-only, equipment infraction. See N.D.C.C. § 39-21-46(1) (providing a person violating N.D.C.C. § 39-21-39 is guilty of an infraction).

[¶ 30] This Court has said a determination of probable cause is an objective determination based on what a reasonable person in that officer’s circumstances and with that officer’s knowledge would do. See State v. Corum, 2003 ND 89, ¶ 10, 663 N.W.2d 151. Addressing the matter at greater length, the United States Supreme Court has said probable cause and reasonable suspicion are:

[C]ommonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. As such, the standards are not readily, or even usefully, reduced to a neat set of legal rules. We have described reasonable suspicion simply as a particularized and objective basis for suspecting the person stopped of criminal activity, and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found. We have cautioned that [reasonable suspicion and probable cause] are not “finely-tuned standards,” comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence. They are instead fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed.

Ornelas v. United States, 517 U.S. 690, 695-96, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (citations omitted); see also Corum, 2003 ND 89, ¶ 10, 663 N.W.2d 151. I do not believe a reasonable and prudent person, especially a reasonable and prudent law enforcement officer, would find probable cause to stop a person a second time within forty-two minutes for the same tinted windows violation.

The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.

Ornelas, 517 U.S. at 696.

[¶ 31] I do not dispute that another officer, who had no knowledge of Bartel-son’s previous stop for a tinted window violation, would have had probable cause to stop Bartelson. Where I part from the majority is in its view that an objective officer, knowing Bartelson had already just been stopped for tinted windows, would have made a second stop for the same violation.

[¶ 32] During the July 17, 2003, preliminary hearing, Huston testified he told Bartelson that, “because [Bartelson] was already stopped for the illegal tint [Huston] wasn’t going to issue [Bartelson] a citation, however I would just be issuing a warning for it. It’s our policy that if we do stop a vehicle for any type of violation we either give them a written citation or written warning.” Huston further testified later in that hearing:

Q: You have given citations for tinted windows?
A: Several.
Q: After you give the ticket the person drives off in your view with those tinted windows?
A: Correct.
Q: Then you are not going to drive down the road ten miles and give them another ticket, are you?
A: Heavens no.

During the November 26, 2003, hearing on the motion to suppress, the following exchange occurs during examination of Huston:

Q: So you initiated a stop of a vehicle, presumably what your belief was, believing that this vehicle had just previously been stopped and ticketed for a tinted window violation. That was your knowledge and belief that this vehicle had just been stopped and ticketed for a tinted window violation, and your purpose then was to simply give it another warning for the same tinted window violation? A: Correct.

Huston as much as concedes an officer, when viewing the situation objectively, would not have made the second stop. Huston knew that the purpose of the initial stop for a tinted window violation had been accomplished. I do not believe an objective, reasonable law enforcement officer, in this particular context, would have made this second stop.

[¶ 33] “The touchstone of the Fourth Amendment is reasonableness.” State v. GuthmiUer, 2004 ND 100, ¶ 5, 680 N.W.2d 235 (quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)). In Whren, the United States Supreme Court stated, “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren, 517 U.S. at 813, 116 S.Ct. 1769. The Court held, “[f]or the run-of-the-mine case ... we think there is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure.” Id. at 819, 116 S.Ct. 1769. Law enforcement’s knowing repeated stops of Bartelson’s vehicle are neither “ordinary” nor “run-of-the-mine.” If the Fourth Amendment’s reasonableness requirement is going to mean anything, we must at least hold law enforcement to the standard Whren sets out. Whren only forecloses an argument that a stop is unreasonable solely because it was based on pretext. The stop still must be reasonable.

[¶ 34] We have held that it is reasonable for an officer to temporarily detain a traffic violator when conducting a traffic stop, but also explained the bounds of that reasonableness. See State v. Mertz, 362 N.W.2d 410, 412 (N.D.1985).

The constitutionality of an investigative detention is judged under the framework established in Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), requiring that an investigative detention be “reasonably related in scope to the circumstances which justified the interference in the first place.” This Court has explained that for traffic stops, “a reasonable period of detention includes the amount of time necessary for the officer to complete his duties resulting from the traffic stop.”

State v. Fields, 2003 ND 81, ¶ 8, 662 N.W.2d 242 (quoting Mertz, at 412). Those duties may include:

[Requesting the driver’s license and registration, requesting that the driver step out of the vehicle, requesting that the driver wait in the patrol car, conducting computer inquiries to determine the validity of the license and registration, conducting computer searches to investigate the driver’s criminal history and to determine if the driver has outstanding warrants, and making inquiries as to the motorist’s destination and purpose.

Fields, at ¶8 (citing United States v. Jones, 269 F.3d 919, 924 (8th Cir.2001)). Once made, the investigative detention may continue only so “long as reasonably necessary to conduct these activities and to issue a warning or citation.” Fields, at ¶ 8; see also Mertz, at 412. “A traffic violator is subject to the arresting officer’s authority and restraint until the officer completes issuance of the traffic citation and expressly releases the violator.” Fields, at ¶ 8 (citing Mertz, at 412). Once the purpose of the initial traffic stop is complete, the continued seizure of the driver violates the Fourth Amendment, unless the officer has reasonable suspicion of unlawful activity. State v. Guscette, 2004 ND 71, ¶ 7, 678 N.W.2d 126. The purpose of the initial stop was to issue a citation to Bartelson for his equipment violation of tinted windows. That purpose was fulfilled when Hudson issued the citation and released Bartelson. In this case, all of the duties related to a stop for a tinted window violation had been accomplished forty-two minutes prior to the second stop, and the officer making the second stop knew it.

[¶ 35] I am not contending that the second stop is a continuation of the first. But, to allow, as the majority does, law enforcement to knowingly, repeatedly, and successively stop and cite for the same equipment offense within forty-two minutes is inconsistent with the limited detention permissible for traffic violations under Terry. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Fields, 2003 ND 81, ¶ 8, 662 N.W.2d 242. Law enforcement cannot circumvent Terry by calling in another officer to make a second stop, unless an independent traffic violation has occurred. It is reasonable to stop for an independent violation, but not for the same violation when the officer knows the State’s purpose has been fulfilled.

[¶ 36] The Fourth Amendment’s policy of protecting citizens from unreasonable searches and seizures is meant to minimize governmental confrontations with individuals. Therefore, searches and seizures must be reasonable to comply with the Fourth Amendment’s protections. In determining reasonableness, a balancing between the government’s interest in protecting its citizens and an individual’s privacy interests occurs. In Whren, the United States Supreme Court concluded that, when probable cause exists, this “balancing” analysis is only necessary for searches or seizures conducted in an “extraordinary manner.” Whren, 517 U.S. at 818, 116 S.Ct. 1769. In my opinion the facts in this case were extraordinary. Stopping Bartelson the second time simply neither benefitted public safety nor furthered any governmental interest. Therefore, the State cannot justify its intrusion.

[¶ 37] Whren gives law enforcement expanded authority to stop a vehicle. Bar-telson clearly could have been stopped again for speeding, straying over the center or fog line, or any other of the myriad traffic offenses found within our statutes. He could have been stopped by an officer with no knowledge he had already been stopped. However, unless Whren is intended to mean the State has unchecked authority to intrude on the liberty of a motor vehicle driver even when the State’s interest in protecting its citizens’ safety while traveling on the highway has been fulfilled, the facts presented here simply stretch the actions an objective officer would reasonably take further than I am willing to accept. I think it is a mistake to interpret Whren as allowing law enforcement officers to repeatedly stop a vehicle to issue a traffic citation or warning for the very same equipment violation. It is the officer’s knowledge that Bartelson had already been stopped earlier for the same violation — his knowledge that the State’s purposes had already been fulfilled — that makes this second stop unreasonable under the Fourth Amendment.

[¶ 38] The evidence obtained during the search of Bartelson’s vehicle may still be admissible if, as the State argues, he voluntarily consented to the search. The trial court determined Bartelson’s consent was voluntary under the totality of the circumstances. Consent is an exception to the Fourth Amendment’s prohibition against warrantless searches. State v. De-Coteau, 1999 ND 77, ¶ 9, 592 N.W.2d 579. Whether consent exists is a question of fact determined from the totality of circumstances. State v. Mitzel, 2004 ND 157, ¶ 13, 685 N.W.2d 120. We have explained:

In order to be a valid waiver, there must be a clear and unqualified consent on the part of the defendant. The failure to object to a search is not a waiver. To be a valid waiver, it must clearly appear that the defendant voluntarily waived his rights and knowingly permitted the search by some express consent.

State v. Manning, 134 N.W.2d 91, 97 (N.D.1965). The trial court found Bartelson’s words and actions indicated consent.

[¶ 39] Neither of the law enforcement officers present during the time Bartelson allegedly consented remember what he said, only that he consented. Bartelson’s attorney asserted that he said “you’re going to search it anyway.” Because Huston had his microphone off during this exchange, there is no evidence of what Bar-telson or the officers actually said. The trial court found the words “you’re going to search it anyway” indicated consent. The record does not contain any evidence that Bartelson said, “you’re going to search it anyway” because only Bartelson’s attorney asserted that was his statement. Therefore, this statement is not supported by the record. The trial court’s finding that Bartelson made a statement indicating consent is clearly erroneous because it is not supported by any evidence in the record. See In Re D.P.O., 2005 ND 39, ¶ 12, 692 N.W.2d 128. Marchus’ and Huston’s sole assertion that Bartelson consented without more specific evidence of the words exchanged cannot, by itself, support a finding of consent.

[¶ 40] The State argues Bartelson’s consent was evident because he voluntarily helped law enforcement remove items from the vehicle’s trunk. This Court has delineated the test for whether consent is voluntary:

Whether consent to search is voluntary is a question of fact. A trial court must determine whether, under the totality of the circumstances, the consent was voluntary. The government has the burden to prove that consent was voluntarily given.
When consent is the product of a free and unconstrained choice and not the product of duress or coercion, it is voluntary. To determine voluntariness, we focus on two elements: (1) the characteristics and condition of the accused at the time of the consent, and (2) the details of the setting in which the consent was obtained, with no one factor being determinative.

Mitzel, 2004 ND 157, ¶¶ 25-26, 685 N.W.2d 120 (citations omitted). “To be voluntary, the consent must not be coerced by explicit or implicit means or by implied threat or covert force.” DeCoteau, 1999 ND 77, ¶ 9, 592 N.W.2d 579. A defendant’s submission to the apparent authority of an officer is not necessarily consent to search and a mere showing of acquiescence without at least tacit consent is insufficient to prove consent. State v. Avila, 1997 ND 142, ¶ 17, 566 N.W.2d 410 (citing Ingram v. State, 364 So.2d 821, 822 (Fla.Ct.App.1978)). “A distinction is recognized between submission to the apparent authority of an officer and unqualified consent.” Ingram, 364 So.2d at 822.

[¶ 41] Hudson released Bartelson from the initial traffic stop around 3:30 p.m. Bartelson continued traveling north on Highway 83 toward Minot. Approximately five minutes later, Hudson received a call from Marchus inquiring whether he had recently stopped a vehicle. Marchus requested help locating the vehicle. As a result, Hudson drove north, attempting to relocate Bartelson’s vehicle. At this time, Marchus, Huston and other local task force officers drove south on Highway 83 out of Minot attempting to locate Bartel-son. Marchus was the first person to locate Bartelson’s vehicle. Marchus turned around and drove north on Highway 83 behind Bartelson’s vehicle. Marchus informed Huston he had located Bartelson’s vehicle. Huston then turned around and drove north on Highway 83. Marchus followed behind Bartelson for a few miles before Huston arrived. When Huston reached Marchus, Hudson was approximately a mile behind Huston’s vehicle. Huston passed Marchus, turned on his lights, and initiated the stop at 16:12:03 pulling up behind Bartelson’s vehicle. Within seven seconds, a task force officer in an unmarked vehicle passed Bartelson, stopped on the highway’s shoulder, backed up his vehicle, and stopped directly in front of Bartelson’s vehicle.

[¶ 42] Twenty-five seconds after the vehicles stopped, Huston approached Bar-telson’s door. Six seconds after Huston approached, Marchus approached the back of Bartelson’s vehicle, followed by Hudson two seconds later. At 16:12:37, Hudson approached passenger Cotton and began questioning him. Forty-three seconds after the stop, Bartelson’s vehicle was surrounded by two highway patrol officers and three task force officers. Huston informed Bartelson the reason for the stop was his tinted windows, briefly questioned him, and returned to the back of the vehicle with Marchus. Both Marchus and Huston approached Bartelson to presumably gain consent to search. Marchus opened Bartelson’s door and leaned inside the vehicle while Huston leaned over the open car door. According to Marchus’s Report of Investigation, he informed Bartelson they had information he was transporting drugs in his car, gained his consent to search and “asked Bartelson if he would exit his vehicle and assist officers in taking items out of the trunk of the vehicle.” Less than one minute and thirty seconds after Marchus approached Bartelson, or about three minutes after he was stopped, Bartelson got out of his vehicle and opened the vehicle’s trunk. Bartelson was surrounded by a highway patrol officer and three task force officers when an officer asked “mind taking some of this stuff out.” Huston then asked “you don’t mind” to which Bartelson replied, “no.”

[¶ 43] Several factors in Bartelson’s alleged consent militate against a finding of voluntary consent. The number of law enforcement present during the request for consent is a significant factor. See 4 Wayne R. Lafave, Search and Seizures § 8.2(b) at 62 (4th ed. 2004) (“United States v. Jones, 846 F.2d 358 (6th Cir.1988) (finding no consent, court relied on several factors, including that ‘the initial stop and blocking of Jones’s car by three police cars established a custodial atmosphere and coercive environment’), ... Ex parte Tucker, 667 So.2d 1339 (Ala.1995) (‘coercive effect of Sgt. Hurter’s words and tone of voice could have only been magnified by the overt presence of five other uniformed police officers and two other marked patrol cars’)”). Professor Lafave notes that courts “finding valid consent often stress that there were not many police officers present.” Lafave, at 62 n. 49 (citing United States v. Sanchez-Valderuten, 11 F.3d 985 (10th Cir.1993); United States v. Williams, 754 F.2d 672 (6th Cir.1985); State v. McMahan, 583 S.W.2d 540 (Mo.App.1979)). A defendant’s assistance in helping conduct a search may add strength to a finding of voluntary consent. See, e.g., Sweeney v. Indiana, 704 N.E.2d 86, 107 (Ind.1998) (finding defendant impliedly consented by opening the trunk of his car); Nebraska v. Prahin, 235 Neb. 409, 455 N.W.2d 554, 560 (1990) (noting the defendant voluntarily participated in the search by opening the trunk and removing items). However, such cooperative conduct is less persuasive when highly coercive elements are present. See 4 Lafave, Search and Seizures § 8.2(g) at 103-05.

[¶ 44] Bartelson was clearly seized by law enforcement and was not free to leave. See, e.g., Whren, 517 U.S. at 809, 116 S.Ct. 1769 (noting temporary -detention during an automobile stop is a seizure). Whether a person is detained by law enforcement is a factor in determining whether consent is voluntary. United States v. Cuevas-Ceja, 58 F.Supp.2d 1175, 1189 (D.Or.1999). In determining voluntariness we look at the totality of the circumstances. Mitzel, 2004 ND 157, ¶ 25, 685 N.W.2d 120. As we noted, Bartelson’s vehicle, was surrounded by at least two marked highway patrol cars and two unmarked task force officer vehicles immediately after the stop. Two highway patrol officers and at least three task force officers were present during the seizure. When Marchus asked for Bartel-son’s consent, one highway patrol officer stood leaning over the driver’s door, Mar-chus crouched inside the driver’s door, and other law enforcement officers moved around the vehicle. Bartelson did not offer to open his trunk; rather, Marchus directed him to exit the vehicle, open the trunk, and assist officers in taking items out of the trunk. Furthermore, Bartelson had been stopped less than forty-five minutes earlier for the same violation when officers and law enforcement vehicles surrounded him for the second time, and told him they had information he was transporting drugs in his car. Under these facts, we do not believe Bartelson’s assistance in searching the trunk was “the product of a free and unconstrained choice and not the product of duress or coercion.” Mitzel, 2004 ND 157, ¶ 26, 685 N.W.2d 120. On this record, the State did not carry its burden to prove Bartelson voluntarily consented to the vehicle search.

[¶ 45] Even if Bartelson’s consent was voluntary, it was not sufficiently purged of the taint of the illegal police action. We have recently explained:

[The] voluntary consent to a search, preceded by an illegal police action, does not automatically purge the taint of an illegal detention. A second inquiry is necessary to determine whether the taint is purged from the evidence seized during the allegedly unlawful detention by considering the following factors: (1) the temporal proximity between the illegal search or seizure and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. If the consent is not purged of the unlawful detention, it is still fruit of the poisonous tree.

State v. Smith, 2005 ND 21, ¶ 26, 691 N.W.2d 203 (citations omitted). All three prongs of this test compel the suppression of the evidence as “fruit of the poisonous tree.” Bartelson’s alleged consent would have been obtained approximately three minutes after the illegal stop. There were no intervening causes in this extremely short period of time to indicate the evidence was not a product of the illegal stop. Finally, the law enforcement’s conduct bordered on harassment. Law enforcement’s knowing stop of Bartelson for the same equipment violation forty-two minutes after the initial stop is flagrant misconduct under the Fourth Amendment. The evidence obtained was fruit of the poisonous tree and must be suppressed as a violation of Bartelson’s Fourth Amendment rights.

[¶ 46] On this record, the stop of Bar-telson’s vehicle violated the Fourth Amendment and his consent to the subsequent search was invalid. I would reverse the judgment of conviction and remand to allow Bartelson to withdraw his guilty plea.

[¶ 47] GERALD W. VANDE WALLE, C.J., concurs.


author: MARING, Justice.

text:
    2005 ND 177
    In the Interest of L.D.M. Mary K. O’Donnell, Rolette County State’s Attorney, Petitioner and Appellee v. L.D.M., Respondent and Appellant.
    No. 20040319.
    Supreme Court of North Dakota.
    Oct. 18, 2005.

      Mary Kathleen O’Donnell (on brief), State’s Attorney, Rolla, ND, for petitioner and appellee.
    William Robert Hartl, Rugby, ND, for respondent and appellant.
   MARING, Justice.

[¶ 1] L.D.M. appealed from an order committing him to the care and custody of the Executive Director of the Department of Human Services for treatment as a sexually dangerous person. On appeal, L.D.M. asserts the State failed to provide two independent expert opinions, as required under N.D.C.C. § 25-03.3-13, and the order of commitment should be reversed. We hold the State met its burden of proof, and we affirm the order of commitment.

[¶ 2] L.D.M. was convicted in Rolette County of gross sexual imposition and was sentenced to serve 10 years at the North Dakota State Penitentiary. Prior to L.D.M.’s release, the State filed a petition seeking to commit him as a sexually dangerous individual under N.D.C.C. ch. 25-03.3. The State introduced evidence by two experts, Joseph Belanger, Ph.D., and Rosalie Etherington, Ph.D., both psychologists, who evaluated L.D.M. to determine whether he is a sexually dangerous individual. L.D.M. requested a separate evaluation by Robert Gulkin, Ph.D., whose opinion was also introduced at the hearing. All three psychologists concluded L.D.M. has an anti-social personality disorder that makes it likely he will commit further acts of sexually predatory conduct.

[¶ 3] L.D.M. contends the State must produce two “independent experts” to establish the elements for civil commitment under N.D.C.C. ch. 25-03.3, and asserts the opinions of Dr. Belanger and Dr. Etherington cannot be considered independent opinions, because both individuals are employed by the North Dakota Department of Human Services and Jamestown College and they conferred with each other to arrive at a jointly held conclusion. L.D.M. also contends the court cannot rely upon the expert opinion of Dr. Robert Guitón, because Guitón was an expert witness for L.D.M., not for the State.

[¶ 4] Our standard of review for appeals from commitments of sexually dangerous individuals under N.D.C.C. ch. 25-03.3 is a modified clearly erroneous standard. In re D.V.A., 2004 ND 57, ¶ 7, 676 N.W.2d 776. We affirm the trial court’s order of committal unless it is induced by an erroneous view of the law or we are firmly convinced the court’s decision is not supported by clear and convincing evidence. Id.

[¶ 5] Under N.D.C.C. § 25-03.3-13, the burden is on the State to show by clear and convincing evidence the defendant is a sexually dangerous individual. In addition, N.D.C.C. § 25-03.3-13, provides in relevant part:

An individual may not be committed unless evidence is admitted establishing that at least two experts have concluded the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct.

Referring to this statute in In re M.B.K., 2002 ND 25, ¶ 11, 639 N.W.2d 473, this Court said:

[T]he State must produce two experts to independently establish two elements: (1) that the respondent has some sort of disorder and (2) that disorder makes him or her “likely to engage in further acts of sexually predatory conduct.”

L.D.M. asserts the requirement that two experts independently establish the statutory elements means the experts cannot be employed by the same employer and cannot confer to reach jointly held conclusions. L.D.M. places too broad an interpretation on the quoted language in the M.B.K opinion. In that case, this Court upheld the trial court’s civil commitment, which was based upon separate opinions of two experts who were both employed by the Department of Human Services. This Court’s statement in M.B.K. that the State must produce “two experts to independently establish two elements” means each expert must come to his own conclusion. This Court did not say the experts could not be employed by the same employer or could not confer during the evaluation process. More significantly, N.D.C.C. § 25-03.3-13, does not use the phrase “independently establish” and contains no directive requiring the experts not be employed by the same employer or not confer during the evaluation process.

[¶ 6] There is no evidence either expert relied on the other’s conclusion to arrive at his own opinion. The reports produced by the experts in this case clearly show that each psychologist conducted a thorough evaluation and examination of the relevant data and separately concluded L.D.M. has a personality disorder that makes it likely he will engage in further acts of sexually predatory conduct. That evidence satisfies the State’s burden in this case.

[¶ 7] Furthermore, there is no requirement under the statute that the court only rely upon expert testimony provided by the State’s witnesses. The court, in its discretion, can consider the relevant testimony of any qualified expert at the trial, and, in considering the totality of the evidence, the court can rely on the testimony of an expert witness called by the defendant.

[¶ 8] Having reviewed the record, we conclude the court’s decision is supported by clear and convincing evidence and is not clearly erroneous. We, therefore, affirm the order of commitment.

[¶ 9] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, and DANIEL J. CROTHERS, JJ., concur.

DALE V. SANDSTROM, J.

I concur in the result.


text:
    2005 ND 175
    Lyle SEEHAFER, Plaintiff and Appellant v. Janice SEEHAFER, Defendant and Appellee.
    No. 20050069.
    Supreme Court of North Dakota.
    Oct. 18, 2005.
    Michael S. Mclntee of Mclntee Law Firm, Towner, N.D., for plaintiff and appellant.
    Ted D. Seibel of Ted D. Seibel, P.C., and Maryha Fasching, third-year law student (argued), Harvey, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Lyle Seehafer appeals from a judgment granting his former sister-in-law, Janice Seehafer, a probate homestead on land owned by Lyle and his brother Arlo in joint tenancy. The trial court awarded Janice damages after finding Lyle caused her to involuntarily leave the homestead property.

[¶ 2] We conclude a probate homestead may not be created when the claimant has never held any interest in the property on which the homestead is sought to be imposed, and the interest of the claimant’s deceased spouse was never more than a joint tenancy; an interest which, by operation of law, terminates at death and vests solely in the surviving joint tenant. Accordingly, we reverse.

I

[¶ 3] In 1971, Viola Seehafer deeded the family farm, located in McHenry County, to her sons Lyle and Arlo in joint tenancy. The brothers had lived on the property, with their mother, all their lives and had farmed it together since their father’s death in 1957. In about 1960, the brothers formed a partnership for the purpose of carrying on the farming business. In 1989, the brothers purchased another tract of land, located across the road from the family farm, again taking the property in joint tenancy.

[¶ 4] In 1994, Arlo married Janice. Arlo and Janice subsequently moved into a trailer home on the Seehafer property. Lyle and his mother continued to live in the family house. Janice eventually took over housekeeping chores for both brothers and their mother. Groceries and utilities for both the farm house and trailer home were paid with partnership assets. After the brothers’ mother entered a nursing home in 1996, Janice’s services for Lyle were reduced, with her primarily providing him only a noon meal.

[¶ 5] In January 2000, Arlo died unexpectedly. Janice became the personal representative for Arlo’s estate. She and Lyle, soon after, orally agreed Janice would do yard work and continue to provide the noon meal, and Lyle would continue to provide electricity and propane for the trailer home. In April 2000, three months after Arlo’s death, Lyle and Janice also entered into an agreement for Lyle to purchase Arlo’s share of the partnership’s machinery and cattle from Janice.

[¶ 6] Although some conflict had arisen between Lyle and Janice before Arlo’s death, including arguments over flowers, feeding dogs at the table, and smoking in the house, relations between the two began to deteriorate more rapidly following a February 2001 incident involving a milk check made out to Seehafer Farms. Although the check was eventually split between the parties, this incident led to Janice’s initial claim that she was entitled to a homestead interest. This claim was contained in a letter Janice’s attorney wrote to Lyle.

[¶ 7] In March or April 2001, Janice stopped cooking a noon meal for Lyle for reasons the parties contest. On Memorial Day of 2001, the two had a disagreement about going fishing. During the summer of 2001, Janice and Lyle had an ongoing disagreement about two of Arlo’s guns that Lyle considered family heirlooms. Janice wanted to sell the guns at an auction, and Lyle felt the guns should go to a nephew who was a gun collector. Lyle initially sold the guns to the nephew, giving Janice the proceeds, but later recovered them, at Janice’s request, so she could sell them at an auction. At some point during this disagreement over the guns, near the end of August, Lyle told Janice he wanted her to move her trailer home from the property and leave.

[¶ 8] An August 27, 2001, letter from Janice’s attorney to Lyle stated Janice had decided to move and that she was looking for property where she could relocate her trailer home. From approximately September 23 until October 14, 2001, Janice was on vacation and away from the property. When she returned, Lyle shut off her water for a portion of one afternoon. At some point, an advertisement for land from the local paper was posted on Janice’s door. The parties contest whether Lyle posted it. A deed, conveying property in Drake, North Dakota, to Janice was signed October 15, 2001, and Janice moved her trailer home and the garage in November 2001. The parties contest when Janice made her decision to finally move from the property.

[¶ 9] On February 25, 2002, Janice filed a Declaration of Homestead under N.D.C.C. ch. 47-18 declaring she held a probate homestead on part of the Seehafer property. Subsequently, she sent a letter to Lyle demanding an accounting. Lyle commenced an action to remove the cloud on his title created by Janice’s filing. Janice moved for partial summary judgment and counterclaimed requesting a determination of her homestead rights, one-half the farm income, and damages for moving expenses. The trial court denied Janice’s motion for partial summary judgment.

[¶ 10] Following a bench trial, the trial court found that Janice was entitled to a homestead allowance and had involuntarily left the Seehafer property. The trial court awarded her $35,878 for the value of the homestead, $2,689 in reasonable rental value for the land, and $5,676.54 in moving expenses. Lyle appeals raising several issues.

II

[¶ 11] Although the parties raise a number of issues on appeal, the dispositive issue is whether a probate homestead may be imposed on land held by the claimant’s deceased spouse in joint tenancy with another. Lyle argues the trial court erred when it determined Janice could impose a homestead claim on Lyle’s interest in the property. Janice argues a probate homestead may be established by one whose husband held a joint tenancy interest in the property before his death.

[¶ 12] This is an issue of first impression in North Dakota and requires us to interpret the meaning of our probate homestead statutes under N.D.C.C. ch. 30-16. The interpretation of a statute is a question of law, subject to full review on appeal. GO Comm. v. City of Minot, 2005 ND 136, ¶ 9, 701 N.W.2d 865.

[¶ 13] Although an issue of first impression in North Dakota, we note that Florida, South Dakota, and Oklahoma have previously considered similar cases. All have determined that a spouse cannot assert a probate homestead on property he or she held no interest in and which his or her now-deceased spouse had held only as a joint tenant. See Ostyn v. Olympic, 455 So.2d 1137 (Fla.App.1984); Gross v. Gross, 491 N.W.2d 751 (S.D.1992); Casey v. Casey, 109 P.3d 345 (Okla.2005). Furthermore, as a general matter:

[Probate homestead] provisions presuppose not only that the decedent had a homestead at the time of death, but that the property interest of the decedent did not terminate at death. Consequently, it has been held that the survivor is not entitled to a homestead which the decedent had established in property which he held for life, or as a tenant at will, or during occupancy. On the other hand, such statutes do not require that the decedent have had a fee simple interest, and the survivor may accordingly succeed to a homestead established in leasehold property. However, the survivor’s rights cannot be of longer duration than the estate owned by the decedent, and the expiration of that estate will terminate the survivor’s interest.

American Law of Property § 5.116 (1952).

[¶ 14] Janice relies on several cases from other jurisdictions and miscellaneous authorities to support her argument she is entitled to a homestead, including Elms v. Hall, 214 Ark. 601, 215 S.W.2d 1021 (1948); Watson v. Peyton, 10 Cal.2d 156, 73 P.2d 906 (1937); Cooper Co. v. Werner, 111 S.W.2d 823 (Tex.Ct.App.1937); and Joint Tenants, Estate or Interest in Real Property to Which a Homestead Claim May Attach, W.W. Allen, 74 A.L.R.2d 1355 (1960). These cases and the Allen article are not applicable to this case. At the outset, the Allen article states it does not cover the situation presented here. 74 A.L.R.2d at 1358 (“The right of one spouse to claim a homestead in property of the other where the claimant has no interest in the property independently of the homestead statute is not within the annotation.”). In Cooper Co., the Texas Supreme Court states that one possessing a joint tenancy interest may sustain a homestead interest against creditors but not to the prejudice of co-tenants. Ill S.W.2d at 826. The Elms case is also not applicable as it relates to a homestead interest claimed by a joint tenant against a creditor, not the spouse of a joint tenant against the surviving joint tenant. 215 S.W.2d 1021.

[¶ 15] In Watson, the joint tenants were husband and wife. 73 P.2d 906. The court held the wife alone, or the husband and wife together, could make a valid declaration of homestead upon the property held in joint tenancy. Watson, 73 P.2d at 907. The case is silent, however, as to whether a spouse who holds no interest in property can claim a homestead in her husband’s joint estate property after his death. This is the question we are concerned with in this case.

Ill

[¶ 16] “Homestead laws are a uniquely American institution, having their origins in the great debtor revolution of the era of ‘Jacksonian Democracy.’ ” 40 C.J.S. Homesteads § 3 (1991). Homestead rights “exist only by virtue of constitutional and statutory provisions creating them, and are extended or limited by the provisions creating them.” Id. “In the law, the term ‘homestead’ embraces a variety of conceptions and has different meanings when applied to different factual situations.” 40 Am.Jur.2d Homestead § 1 (1999). “The extent of protection and purpose behind the numerous state provisions varies enormously.” 2 Richard R. Powell, Powell on Real Property, Homesteads § 18.03[1], at 18-63 (Michael Allan Wolf ed., 2005). “[T]he primary purpose of the homestead provision is to place the property designated as a homestead out of reach of creditors while it is occupied as a home or, as otherwise stated, to secure to a debtor and his family necessary shelter from creditors.” 40 Am.Jur.2d Homestead '§ 4 (1999). “Although the law creating the homestead right is to be construed liberally in the debtor’s favor, it should not be so applied as to make it an instrument for the accomplishment of fraud or imposition.” Id. at § 12. With these general rules in mind, we consider North Dakota’s statutes and constitution. See id. at § 2 (“Homestead rights did not exist under the common law. They are, it seems, peculiar to America, and exist by virtue of statute or constitutional provision.”).

[¶ 17] The North Dakota Constitution provides for the protection of a homestead for debtors, but says nothing about the probate homestead right:

The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws, exempting from forced sale to all heads of families a homestead, the value of which shall be limited and defined by law; and a reasonable amount of personal property; the kind and value shall be fixed by law. This section shall not be construed to prevent liens against the homestead for labor done and materials furnished in the improvement thereof, in such manner as may be prescribed by law.

N.D. Const, art. XI, § 22. Our statute providing for a probate homestead provides, in relevant part:

Upon the death of a person in whom the title to real property constituting a homestead is vested, a homestead estate shall survive, and, until otherwise disposed of according to law, shall be set over to the persons and in the order following:
1. To the surviving spouse for life or until the surviving spouse again marries.

N.D.C.C. § 30-16-02.

[¶ 18] Janice does not claim she ever held an interest in the property in question beyond that of her purported probate homestead. Under N.D.C.C. § 30-16-02, the validity of Janice’s probate homestead claim then hinges largely on whether the title to the property on which she wishes to establish her claim had vested in her husband.

[¶ 19] “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained.” N.D.C.C. § 1-02-02. ‘Vested,” in its ordinary sense, is defined: “That has become a completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute.” Black’s Law Dictionary 1557 (7th ed.1999). Regarding the property interest vested in a joint tenant, we have said:

A joint tenancy may be described as a life estate with each joint tenant having a contingent remainder in fee, the contingency being based upon survival of the other joint tenant or tenants....
The surviving joint tenant does not take the interest of the deceased joint tenant; rather, the contingent remainder vests in the survivor because the contingency (survival of the cotenant) has been met.

Jamestown Terminal Elevator, Inc. v. Knopp, 246 N.W.2d 612, 613-14 (N.D.1976). In Jamestown Terminal Elevator, Inc., we went on to say:

The interest of two joint tenants is not only equal or similar, but also is one and the same. One has not originally a distinct moiety from the other; but, if by any subsequent act (as by alienation or forfeiture of either) the interest becomes separate and distinct, the joint tenancy instantly ceases. But, while it continues, each of two joint tenants has a concurrent interest in the whole; and therefore, on the death of his companion, the sole interest in the whole remains to the survivor. For the interest, which the survivor originally had, is clearly not devested by the death of his companion; and no other person can now claim to have a joint estate with him, for no one can now have an interest in the whole, accruing by the same title, and taking effect at the same time as his own; neither can anyone claim a separate interest in any part of the tenements, for that would be to deprive the survivor of the right which he has in all, and every part. As, therefore, the survivor’s original interest in the whole still remains; and as no one can now be admitted, either jointly or severally, to any share with him therein, it follows that his own interest must now be entire and several and that he shall alone be entitled to the whole estate (whatever it be) that was created by the original grant. 2 W. Blackstone, Commentaries 184-85.

246 N.W.2d at 613-14. This means, in a joint tenancy, nothing beyond a life estate can be said to be vested in a joint tenant until he or she is the only remaining survivor. So long as another joint tenant survives, the entire interest of a deceased joint tenant is terminated at his death. The deceased joint tenant is divested of his interest and no interest remains.

[¶ 20] Under our statute, a homestead estate survives only “[u]pon the death of a person in whom the title to real property constituting a homestead is vested.” N.D.C.C. § 30-16-02. In this case, Janice’s right to claim the probate homestead arises only upon the death of Arlo. At his death, any interest Arlo holds in the joint tenancy is divested. See Jamestown Terminal Elevator, Inc., 246 N.W.2d at 613— 14. There is no longer an interest to which a homestead claim may attach. See State ex rel. Board of Univ. & Sch. Lands v. Bladow, 462 N.W.2d 453, 455 n. 1 (N.D.1990); Myrick v. Bill, 3 Dakota 292, 17 N.W. 268, 271 (Dak.1883) (“[T]he rule seems to be well settled that while a very limited estate in the land, perhaps a mere leasehold interest, may be sufficient to support a claim of homestead, some estate in the land is essential.”). Without a property interest on which to attach a probate homestead, Janice’s claim must fail.

[¶21] Our statute provides that the probate homestead is to exist “until otherwise disposed of according to law.” N.D.C.C. § 30-16-02. As we stated in Jamestown Terminal Elevator, Inc., upon the death of a joint tenant, property held in joint tenancy is immediately vested in the surviving joint tenant. 246 N.W.2d at 613-14. In other words, it is otherwise disposed of according to law. As the South Dakota Supreme Court explained: “The homestead exemption is temporary and exists only so long as the conditions prevail under which it was allowed by the homestead law.” Gross v. Gross, 491 N.W.2d 751, 754 (S.D.1992) (citation omitted) (holding, under a similar statute, ownership of property was transferred to surviving joint tenants upon the death of the joint tenant by operation of law, thus defeating the homestead claim of deceased’s spouse).

While the law clearly protects the surviving spouse’s homestead right to possession and occupation from disposition to other heirs and/or beneficiaries via probate administration proceedings [it does not] provide similar protection of the homestead right as against disposition to true owners by operation of law.

Casey v. Casey, 109 P.3d 345, 350 (Okla.2005).

[¶ 22] Homestead protections have “been said to be based on the homestead claimant’s rights in the property and to have no separate existence independent of those rights, so that the homestead right in property can never rise any higher than the right, title, or interest that the claimant owns in the property.” 40 Am.Jur.2d Homestead § 3; see also, 2-18 Powell on Real Property § 18.03[5], 18-95 (“[T]he exemption from attachment, judgment, levy or execution sale is designed to protect the debtor against third party creditors and it may not provide relief against joint tenants of or tenants in common with the homestead claimant.”).

[¶ 23] North Dakota has long recognized that a homestead is limited by the extent of the claimant’s or the spouse’s property interest. In Ferris v. Jensen, this Court said a wife holding no interest in land cannot claim a homestead right greater than the equitable title her husband held under a contract for purchase:

The existence of such homestead right was entirely dependent upon her husband’s equitable title under said contract. Like a stream, it could rise no higher than its source. The homestead right ceased with the extinguishment of her husband’s equitable estate in the land, and such equitable estate was extinguished by abandonment of the contract.

16 N.D. 462, 114 N.W. 372, 375 (1907). Here, Arlo’s interest was terminated upon his death and there is no interest remaining in which Janice may create a homestead.

[¶ 24] Although Janice argues we should expand our interpretation of N.D.C.C. § 30-16-02 in the interest of furthering the public policy goals of the homestead exemption, “[w]hen the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. If the legislature wishes to make property held in joint tenancy subject to a probate homestead right, it can do so by amending the statutes.

IV

[¶ 25] The intent of our probate homestead is the protection of the family from creditors and from the improvident devising, by a spouse or parent, of the family home. The intent is not to impose upon the fee simple owner, who until recently has also claimed the property as his home, the burden of another’s life estate. This should be particularly true in a case in which the homestead is claimed only after any interest upon which the homestead might validly be claimed has been terminated.

[¶ 26] We hold that the trial court erred in concluding Janice could claim a probate homestead on Lyle Seehafer’s property by virtue of her husband’s prior joint tenancy interest. The spouse of a deceased joint tenant cannot claim a probate homestead on her husband’s property when his interest in that property terminated on his death and she held no interest of her own in the property.

[¶ 27] Our decision on this issue renders moot the further issues raised by the parties in regard to the abandonment and damages issues and we do not consider them. The judgment of the trial court is reversed and title to the property is vested solely in Lyle Seehafer.

[¶ 28] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.