author: CROTHERS, Justice. KAPSNER, Justice,

text:
    2006 ND 82
    In the Interest of P.F. Cynthia M. Feland, Petitioner and Appellee, v. P.F., Respondent and Appellant.
    No. 20050302.
    Supreme Court of North Dakota.
    April 19, 2006.
    Rehearing Denied May 11, 2006.

      Kent M. Morrow, Bismarck, N.D., for respondent and appellant.
    Cynthia M. Feland, Assistant State’s Attorney, Bismarck, N.D., for petitioner and appellee.
   CROTHERS, Justice.

[¶ 1] P.F. appeals from an order committing him to the care, custody, and control of the executive director of the North Dakota Department of Human Services for treatment as a sexually dangerous individual. On appeal, P.F. argues the district court had insufficient grounds for finding probable cause at the preliminary hearing. Additionally, he argues the final commitment hearing was not timely held and clear and convincing evidence did not exist to show P.F. was a sexually dangerous individual. We conclude probable cause was properly found, a proper extension was granted for the hearing, and the order was supported by the evidence. Therefore, we affirm.

I

[¶ 2] P.F. has a history of sexual- and alcohol-related convictions and incidents stemming back to his youth. His adult criminal record includes four convictions, one later overturned, involving sexually predatory conduct. The first conviction was an October 1990 sexual assault, in which P.F. forced a woman against a wall, put her hand on his groin, fondled her, and rubbed his pelvis against hers. The second and third convictions were in 1994 and 2001 for criminal trespass. The 1994 conviction arose when P.F. went, uninvited, into the house of a woman twice in one evening, the second time falling onto her while she was asleep in her bed. The 2001 conviction followed after an acquaintance of P.F.’s found him crawling outside her bedroom in the middle of the night after he “wandered into” the house. In 2004, P.F. was convicted for gross sexual imposition after he allegedly digitally penetrated an acquaintance while she was sleeping. That conviction was overturned on procedural grounds by the district court and affirmed by this Court.

[¶ 3] At the preliminary hearing, P.F.’s parole officer testified to utilizing the information from P.F.’s criminal record, as well as from interviews with P.F. and P.F.’s girlfriend, to rate him on the MNSOST-R. The test revealed a high likelihood of recidivism. Finding probable cause to believe P.F. was a sexually dangerous individual, the district court ordered P.F.’s commitment in the State Hospital for sixty days.

[¶ 4] On June 10, 2005, fifty-six days after the preliminary hearing, the State Hospital sent a request for an extension due to scheduling constraints with the evaluating psychiatric experts. P.F. moved to dismiss on June 15, 2005. The district court granted an extension on June 15, 2005, the sixty-first day of P.F.’s commitment, and ordered his release in the interim. The district court ordered the commitment hearing be held “as soon as possible after the 15th day of July, 2005.” A full commitment hearing was held on July 19, 2005, and the order of commitment was issued on August 16, 2005.

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

II

[¶ 6] P.F. argues probable cause was found improperly at the preliminary hearing because the parole officer was not an “expert” and no showing was made that P.F. had a sexual, personality, or mental ■disorder.

[¶ 7] A preliminary hearing must be held within seventy-two hours of the filing of the petition for commitment of a sexually dangerous individual. N.D.C.C. § 25-03.3-11. The preliminary hearing is held to determine whether there is probable cause to believe the individual is sexually dangerous. If the court so finds, it shall “order that the respondent be transferred to an appropriate treatment facility for an evaluation as to whether the respondent has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction.” Id. There is no requirement that such a showing of mental disease or defect be made at the preliminary hearing, nor is expert testimony required. Id.

[¶ 8] In State v. Linghor, we explained “probable cause” generally, adopting the United States Supreme Court’s reasoning:

The long-prevailing standard of probable cause protects citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime, while giving fair leeway for enforcing the law in the community’s protection. On many occasions, we have reiterated that the probable-cause standard is a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.
The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. ■ We have stated, however, that the substance of all the definitions of probable cause is a reasonable ground for belief of guilt, and that the belief of guilt must be particularized with respect to the person to be searched or seized.

2004 ND 224, ¶ 10, 690 N.W.2d 201 (quoting Maryland v. Pringle, 540 U.S. 366, 370-71, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003)). Even though Linghor discusses probable cause in the criminal context, the explanation is consistent with our interpretation of the probable cause requirement under N.D.C.C. § 25-03.3-11. No specific, named evidence is required in order to make a probable cause finding; rather, a court must take a practical approach, looking at all evidence brought before it, to determine whether there is a reasonable ground to believe a person may be sexually dangerous.

[¶ 9] We conclude the district court did not err by finding probable cause.

Ill

[¶ 10] Within sixty days after the finding of probable cause, a commitment hearing must be held to determine whether an individual is, in fact, sexually dangerous. N.D.C.C. § 25-03.3-13. The court may extend the sixty-day time limitation if good cause is shown. Id.

[¶ 11] Here, the State Hospital sent a letter to the district court on the fifty-sixth day of P.F.’s commitment, requesting an extension. On the sixtieth day, P.F. filed a motion to dismiss. The district court ordered an extension on the sixty-first day of P.F.’s commitment. P.F. argues the extension was error because the district court did not appropriately find “good cause” and did not order the extension until the sixty-day period had expired. We disagree.

[¶ 12] The district court has discretion to grant extensions “for good cause.” N.D.C.C. § 25-03.3-13. Here, the State Hospital issued a letter to the district court indicating its inability to complete the psychiatric assessments due to scheduling constraints, and an extension was requested. No formal motion was made by the State. Following P.F.’s motion to dismiss and a hearing on both the dismissal and the extension, the district court granted the extension, stating, “[T]here is good cause for extending the time of [the] hearing.” The court ordered P.F.’s release in the interim.

[¶ 13] Although we discourage direct communications between the State Hospital and the court, based on this record we cannot say the district court abused its discretion in acting upon the letter request. We anticipate that future communications with the court will be handled by use of proper motion practice to ensure notice to all parties, timely handling by the court, and adequate assembly and preservation of the record for review by this Court if necessary.

[¶ 14] We are also concerned with the State’s view that scheduling problems at the State Hospital result in an automatic, acceptable showing of good cause. The State relies on In re M.D., 1999 ND 160, 598 N.W.2d 799, in making this sweeping argument. In In re M.D., we stated that in civil commitments, “this Court has upheld extensions of the time for hearing because of scheduling problems in the district court’s calendar or illness of an expert witness who had evaluated the committed person.” Id. at ¶ 15. We affirmed the district court’s order of extension in In re M.D. because the psychiatrist had been unable to complete his evaluation and the State’s attorney handling the case had been ill and out of the office for two weeks.

[¶ 15] We are mindful of the time and budgetary constraints present at the State Hospital, but we are not persuaded that “Sorry, too busy” is an automatic “out” every time a sexually dangerous individual assessment is not or will not be made within the sixty-day statutory time limitation. Although In re M.D. continues to stand for the proposition that, in certain situations, time constraints or a person’s unavailability may give rise to “good cause,” In re M.D. does not stand for the proposition that scheduling can be used as an automatic excuse for failure to timely conduct the commitment hearing. 1999 ND 160, ¶ 15, 598 N.W.2d 799.

[¶ 16] An order of commitment normally results in a significant deprivation of liberty. Due to that deprivation, the legislature has established a sixty-day evaluation period and, absent a showing of good cause, the courts, the State, and the State Hospital must abide by that mandate. Here, we find any delay was harmless because P.F. was released between the order granting the extension and the final order of commitment. However, we strongly urge all involved in this process to be mindful of the statutory requirements in the future.

[¶ 17] Section 25-03.3-13, N.D.C.C., does not require that a motion for an extension be made within the original statutory period. In re M.D., 1999 ND 160, ¶ 16, 598 N.W.2d 799. As such, we will not require that a district court issue its order within the statutory period. We would expect a court to grant or deny an extension in a prompt manner; however, we cannot conclude based on the record before us that a request for an extension made within the sixty days and an order granting such extension issued five days later was an abuse of discretion. Therefore, we conclude the extension' was timely requested and granted.

IV

[¶ 18] P.F. argues the district court erred in concluding P.F. was a sexually dangerous individual. He relies primarily on an assertion that it was inappropriate for the evaluating psychologists to consider P.F.’s criminal trespass charges and his reversed gross sexual imposition conviction when making their assessments. We disagree, concluding neither the psychologists nor the district court deviated from the commitment statutes.

[¶ 19] Under N.D.C.C. § 25-03.3-13, the State has the burden to show by clear and convincing evidence that a defendant is a sexually dangerous individual. A “sexually dangerous individual” is defined as a person who has “engaged in sexually predatory conduct and who 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.” N.D.C.C. § 25-03.3-01(8). We have concluded that to satisfy N.D.C.C. § 25-03.3-13, the State must produce two experts to independently establish that the respondent has some sort of disorder and that the disorder makes him or her “likely to engage in further acts of sexually predatory conduct.” In re M.B.K, 2002 ND 25, ¶ 11, 639 N.W.2d 473.

[¶ 20] Here, the evaluating psychologists testified they had taken into account P.F.’s sexual assault conviction as well as the two criminal trespass convictions and overturned gross sexual imposition conviction. P.F. argues consideration of these latter three offenses was improper because two are not “sexual offenses” by definition and the other was overturned. However, P.F. provides no support for his contention that these should have been excluded from consideration. The State argues that under the commitment statutes, “sexually dangerous conduct” includes all conduct of a sexually predatory nature, not just that which results in a successful conviction. We agree.

[¶ 21] Words within a statute are to be interpreted in their ordinary sense. N.D.C.C. § 1-02-02. Webster’s New World Dictionary defines conduct as “the way that one acts; behavior.” (2d ed.1980). There is no suggestion that “conduct” is synonymous with “convictions.” Therefore, we hold that all sexually predatory conduct, including conduct that did not result in a charge or conviction, may be considered under a Section 25-03.3-01(8), N.D.C.C., analysis. Here, the other three offenses involved sexually predatory conduct. The circumstances surrounding both criminal trespass convictions involved P.F. lurking, uninvited, in or around a woman’s bedroom in the middle of the night. The gross sexual imposition conviction was overturned on procedural grounds, but the alleged victim in that case testified extensively about P.F.’s conduct. All of these incidents could legitimately be considered sexually predatory conduct and were appropriately considered by the evaluating psychologists.

[¶ 22] P.F. also raises an argument about the various diagnostic tools and assessment tests, such as the RRASOR and Static-99, used by the evaluating psychologists. He essentially asks the Court to examine the raw scores yielded by these tests to determine whether P.F. is “likely to re-offend.” We decline the opportunity to second-guess the psychiatric experts used in these evaluations. The raw scores provided through diagnostic tools should not overshadow the ultimate diagnoses and opinions of the expert witnesses. The respondent should engage his or her own expert to attack the State’s evidence, rather than asking this Court or the district court to conduct independent analyses of the raw test results.

[¶23] P.F. meets the definition of a “sexually dangerous individual” under N.D.C.C. § 25-03.3-01(8). He has a history of sexually predatory conduct and numerous mental diseases that made him likely to re-offend. We hold the State carried its burden to show by clear and convincing evidence that P.F. is a sexually dangerous individual.

V

[¶ 24] We affirm the district court’s order of commitment.

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

KAPSNER, Justice,

concurring.

[¶ 26] I concur in the majority opinion except for ¶ 22. I write separately for two reasons: to underscore the necessity of reading the constitutional requirements set forth in Kansas v. Crane, 534 U.S. 407,122 S.Ct. 867, 151 L.Ed.2d 856 (2002) into our statute and to reiterate that diagnostic tools and assessment tests do not act as substitutes for judicial review.

.[¶ 27] In order to involuntarily commit a sexually dangerous individual under our statute, there must be a finding an individual has committed some type of sexually predatory conduct and is diagnosable with some type of personality, sexual, or mental disorder that makes an individual “likely to engage in further acts of sexually predatory conduct.” N.D.C.C. § 25-03.3-01(8). We have said “likely to engage in further acts of sexually predatory conduct” means the individual’s “propensity towards sexual violence is of such a degree as to pose a threat to others.” In re G.R.H., 2006 ND 56, ¶ 16, 711 N.W.2d 587. As enunciated by the majority in G.R.H., at ¶ 18, our civil commitment statute must be read in light of Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). Thus, an individual must also have a “serious difficulty in controlling behavior.” Id,.; see also G.R.H., at ¶ 18 (construing civil commitment statute to avoid possible constitutional infirmity). Otherwise, civil commitment could quickly become a “ ‘mechanism for retribution or general deterrence’— functions properly those of criminal law, not civil commitment.” Crane, 534 U.S. at 412, 122 S.Ct. 867 (citing Kansas v. Hendricks, 521 U.S. 346, 372-73, 117 S.Ct. 2072,138 L.Ed.2d 501 (1997) (Kennedy, J., concurring)).

[¶ 28] Before an individual can be civilly committed as a sexually dangerous individual, there must be a showing of: (1) sexually predatory conduct; (2) some type of congenital or acquired condition manifested by a personality, sexual, or mental disorder that makes an individual “likely to engage in further acts of sexually predatory conduct” meaning the individual’s propensity towards sexual violence is of such a degree as to pose a threat to others; and (3) the individual must have a serious difficulty in controlling behavior. Because of the way petitioner has framed his issues, the Court does not address the third part of the requirement. This may give the impression our statute can be read in a constitutional vacuum. G.R.H. foreclosed such a reading. G.R.H., at ¶ 18.

[¶ 29] Also, I am concerned ¶ 22 of the majority opinion could erroneously be read to imply diagnostic tools and assessment tests used on sex offenders — such as the Static-99 or RRASOR — can act as a substitute for judicial decision making. We have previously made clear that we will not engage in a “contest over percentage points” when it comes to determining whether an individual meets the requirements for civil commitment. In re M.B.K, 2002 ND 25, ¶ 18, 639 N.W.2d 473. Instead, we require a thorough examination done by experts to make the initial recommendation of whether an individual poses a threat to society. Id. A certain test score on the RRASOR or Static-99 does not make an individual automatically committable. If we were to accept such logic, the judiciary would be without purpose. The court has the ultimate decision to determine whether the State has met its burden of producing clear and convincing evidence sufficient for commitment. A psychological test cannot act as a substitute for independent judicial review.

[¶ 30] To the extent the majority opinion is read in the proper light, I agree.

[¶ 31] CAROL RONNING KAPS-NER.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2006 ND 78
    Reuben LARSON, Plaintiff and Appellant, v. Timothy SCHUETZLE, Warden, N.D. State Penitentiary, Defendant and Appellee.
    No. 20050418.
    Supreme Court of North Dakota.
    April 19, 2006.

      Reuben Larson (submitted on brief), (pro sé), Bismarck, ND.
    Ken R. Sorenson (submitted on brief), Assistant Attorney General, Office of Attorney General, Bismarck, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Reuben Larson sought a writ of certiorari asking the district court to declare that the penitentiary warden exceeded his jurisdiction and violated Larson’s constitutional rights in the application of the prisoner disciplinary rules. The district court denied Larson’s application for the writ and he appealed. We affirm.

I

[¶ 2] Larson is a prisoner at the North Dakota State Penitentiary in Bismarck. Larson possessed, in his prison cell, some religious magazines given to him by other inmates. Larson also had a picture of an American flag, which he cut out of a newspaper, posted on his cell wall in an area designated for inmates to hang pictures.

[¶ 3] Prison guards confiscated the religious magazines, ordered Larson to remove the American flag, and commenced disciplinary procedures against Larson. Prison officials maintained they took these actions in accordance with the rules and procedures contained in the Inmate Handbook adopted by the Department of Corrections.

[¶ 4] Prison officials contended the religious magazines could be confiscated because they were not directly addressed to Larson and Larson received them from other inmates. Prison officials note the Inmate Handbook clearly states inmates may possess magazines only if the magazines are addressed directly to the inmates. Prison officials allege Larson was ordered to remove the American flag because it was property that was altered from its original state by being cut from a newspaper, and therefore was considered contraband under the Inmate Handbook.

II

[¶ 5] Section 32-33-01, N.D.C.C., provides:

A writ of certiorari shall be granted by the supreme court or district court when an officer, board, tribunal, or inferior court has exceeded the jurisdiction of such officer, board, tribunal, or inferior court, as the case may be, and there is no appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy, and also when, in the judgment of the court, it is deemed necessary to prevent miscarriage of justice.

Section 32-33-09, N.D.C.C., provides:

Except as otherwise provided by law, the review upon a writ of certiorari cannot be extended further than to determine whether the inferior court, tribunal, board, or officer has pursued regularly the authority of such court, tribunal, board, or officer.

[¶ 6] “We have held that the phrase ‘pursued regularly the authority’ contained in Section 32-33-09 is synonymous with ‘jurisdiction’ as that term is used in Section 32-33-01.” Manikowske v. N.D. Workmen’s Comp. Bur., 373 N.W.2d 884, 886 (N.D.1985). Therefore, our review is limited to the question of whether the warden has exceeded his jurisdiction. Id. “In the context of a certio-rari proceeding, we have defined ‘jurisdiction’ as ‘the power and authority to act with respect to any particular subject matter.’ ” Id.

[¶ 7] Our statutory law gives the warden authority and control over the penitentiary and its inmates. Section 12-47-11, N.D.C.C., provides:

The warden, under the direction of the director of the department of corrections and rehabilitation, shall have the charge, custody, and control of the penitentiary and offenders committed to the legal and physical custody of the department and placed by the department at the penitentiary, together with all lands, buildings, furniture, tools, implements, stock, provisions, and every other species of property pertaining to the penitentiary or within the premises of the penitentiary. The warden shall superintend and be responsible for the policing of the penitentiary and the discipline of the offenders placed by the department at the penitentiary.

Section 12-47-12, N.D.C.C., provides, in part:

The warden, subject to the approval of the director of the department of corrections and rehabilitation, shall make rules not in conflict with the laws of this state and shall prescribe penalties for violation of the rules:
3. For the conduct of offenders imprisoned in the penitentiary.

[¶ 8] “[M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees.” Bell v. Wolfish, 441 U.S. 520, 546, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). “ ‘[CJentral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.’ ” Id. at 546-47, 99 S.Ct. 1861. “Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry.” Id. at 547, 99 S.Ct. 1861. Prison administrators are entitled to deference in the adoption and execution of policies intended “to preserve internal order and discipline and to maintain institutional security.” Id.

Ill

[¶ 9] The first rule at issue is the penitentiary’s “no-passing” rule. The penitentiary’s “no-passing” rule provides that possession of another inmate’s property is considered contraband and inmates are not permitted to possess contraband at any time. The 7th Circuit Court of Appeals has held a similar “no-passing” rule constitutional. Ford v. Schmidt, 577 F.2d 408, 410 (7th Cir.1978). The rule examined in Ford provided that no inmate may possess unauthorized property and no inmate shall pass property to anyone without authorization. Id. at 409. The Ford court held “the security of the institution would be threatened by the absence of a property transfer regulation and the ‘no-passing’ rule here involved was rationally related to meeting that security need.” Id. at 410.

[¶ 10] The second rule at issue is the penitentiary’s “publisher-only” rule which provides that inmates may only receive books, magazines, and periodicals if they are received directly from the publisher. The United States Supreme Court has held that a New York City correctional facility rule prohibiting the receipt of hardcover books unless mailed directly from publishers, book clubs, or bookstores is constitutional. Bell v. Wolfish, 441 U.S. 520, 550, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The correctional facility argued the rule was designed to promote security and order at the facility. Id. at 544, 99 S.Ct. 1861. The Supreme Court agreed, stating this “limited restriction is a rational response by prison officials to an obvious security problem.” Id. at 550, 99 S.Ct. 1861. The Court agreed that hardcover books were especially convenient tools for smuggling contraband such as money, drugs, and weapons into a correctional facility and that these books are difficult to search effectively. Id. at 551, 99 S.Ct. 1861.

[¶ 11] Since the Supreme Court’s decision in Bell, several federal courts have upheld the constitutionality of “publisher-only” rules similar to the rules at issue here. See Cotton v. Lockhart, 620 F.2d 670, 672 (8th Cir.1980) (upholding constitutionality of “publisher-only” rule applying to magazines, newspapers, and books under reasoning of Supreme Court in Bell because rule is a reasonable and constitutional response to a legitimate and substantial concern for institutional security); Ward v. Washtenaw Cty. Sheriff’s Dept., 881 F.2d 325, 330 (6th Cir.1989) (extending the Bell decision to include magazines because the rule was reasonably related to legitimate penological interests); Kines v. Day, 754 F.2d 28, 31 (1st Cir.1985) (holding a “publisher-only” rule applying to hardcover, softcover, and newspaper publications did not violate the constitution on its face); Avery v. Powell, 806 F.Supp. 7, 11 (D.N.H.1992) (holding a “publisher-only” rule was constitutional because prison administrators are accorded deference and rule was reasonably related to the penological interest of maintaining internal prison security); Prison Legal News v. Lehman, 272 F.Supp.2d 1151, 1161 (W.D.Wash.2003) (upholding prison’s rule that publications must be mailed directly from the publisher because the rule satisfied the Turner factors and therefore is reasonably related to legitimate penological interests); Montgomery v. Coughlin, 194 A.D.2d 264, 605 N.Y.S.2d 569, 570 (N.Y.App.Div.1993) (upholding constitutionality of a “publisher-only” rule as applied to newspapers because the rule served legitimate penological interests).

[¶ 12] Larson contends the prison rules are unconstitutional for several reasons. He argues the rules are unconstitutional because they do not reasonably relate to legitimate penological interests. Specifically, Larson argues rules forbidding gifts or alteration of property are unconstitutional because giving and receiving gifts and altering property do not violate or harm the order, security, or housekeeping of the prison. He argues the rules are arbitrary, unreasonable, and not remotely connected to the goal of preventing theft, strong-arming, escape, or assault. Larson also argues the rules conflict with North Dakota law by taking property without due process of law. He argues the prison has no right to take his property because the property was not stolen and he was not planning an escape or making a weapon.

[¶ 13] The penitentiary argues the rules were adopted to address the penological interests of safety, security, and institutional order. Specifically, the penitentiary maintains the rules are intended to prevent theft, extortion, strong arm tactics, fraudulent and retaliatory accusations, and the conveyance of communications for gang purposes or to plan and carry out prohibited activities. Additionally, the penitentiary maintains the rules are intended to avoid the accumulation of property in a cell because the accumulation may be used to conceal contraband or may create a safety hazard.

[¶ 14] “[C]onvicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S. at 545, 99 S.Ct. 1861. But, “simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations.” Id. Therefore, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Timer v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

[¶ 15] “[S]everal factors are relevant in determining the reasonableness of the regulation at issue.” Id. “First, there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Id. “Moreover, the governmental objective must be a legitimate and neutral one.” Id. at 90, 107 S.Ct. 2254. A second factor “is whether there are alternative means of exercising the right that remain open to prison inmates.” Id. “A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Id. “When accommodation of an asserted right will have á significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.” Id. Fourth, “the absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Id. “This is not a ‘least restrictive alternative’ test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint.” Id. at 90-91, 107 S.Ct. 2254. We use these factors to determine whether these rules are reasonably related to legitimate penological interests.

[¶ 16] First, is the penitentiary rule rationally connected to a legitimate government interest put forward to justify it and is the rule neutral? There is a rational connection between maintaining penitentiary safety, security, and order and prohibiting inmates from exchanging property and receiving books, magazines, and other periodicals from sources other than the publisher. Ford v. Schmidt, 577 F.2d at 410; Bell v. Wolfish, 441 U.S. at 550-51, 99 S.Ct. 1861; Ward v. Washtenaw Cty. Sheriff's Dept., 881 F.2d at 329. Allowing inmates to exchange property and to receive publications from outside sources other than directly from the publisher would facilitate prohibited communications secretly among prison inmates and increase the possibility they may receive prohibited communications or concealed weapons from outside the prison. Ford v. Schmidt, 577 F.2d at 410; Bell v. Wolfish, 441 U.S. at 550-51, 99 S.Ct. 1861; Ward v. Washtenaw Cty. Sheriff's Dept., 881 F.2d at 329. Since the rule applies to all property, regardless of content, the rule is neutral. Bell v. Wolfish, 441 U.S. at 551, 99 S.Ct. 1861.

[¶ 17] Second, are there alternative means open to the inmates to exercise their rights? The penitentiary rule allows inmates to receive the type of property in question as long as they receive it on their own and do not exchange it with each other. Therefore, the rule allows the inmates an alternative means to exercise their rights. Id. at 552, 99 S.Ct. 1861.

[¶ 18] Third, what is the impact accommodation of the constitutional right will have on prison guards and other inmates, and on the allocation of prison resources in general? Courts are particularly deferential to the discretion of prison officials when the accommodation of a constitutional right will have a significant ripple effect on other inmates or on prison staff. Turner v. Safley, 482 U.S. at 90, 107 S.Ct. 2254. The rules are designed to maximize the safety and security of the inmates and prison staff. Prison officials maintain the rules are necessary to further the prison’s ability to manage and control safety and security within the prison. Allowing prisoners to freely pass property to each other would diminish the safety and security of other inmates and prison staff. Ford v. Schmidt, 577 F.2d at 410. Requiring inmates to receive publications directly from publishers makes it easier for prison staff to identify what property rightfully belongs to the proper inmates and makes it easier for prison staff to investigate claims of theft among inmates. Bell v. Wolfish, 441 U.S. at 550-51, 99 S.Ct. 1861. Without these rules, prison staff would be required to examine every publication traded between inmates to ensure that inmates are not communicating ideas or plans to carry out prohibited activities. Id. at 551, 99 S.Ct. 1861. The absence of these rules would increase the workload of prison staff and would diminish the safety and security of the inmates and the prison staff. Id. at 550-51, 99 S.Ct. 1861.

[¶ 19] Fourth, the reasonableness of a prison rule can be shown by the absence of ready alternatives. A prison rule is not required to be the least restrictive alternative and the absence of an alternative is evidence that the rule is reasonable. Turner v. Safley, 482 U.S. at 90, 107 S.Ct. 2254. It is difficult to identify alternatives to these rules which would effectively prevent theft, extortion, strong arm tactics, fraudulent and retaliatory accusations, and the conveyance of communications for gang purposes or to plan and carry out prohibited activities. Avery v. Powell, 806 F.Supp. at 11; Montgomery v. Coughlin, 605 N.Y.S.2d at 571. Any alternatives would likely require increased monitoring of interactions between inmates and significant monitoring of all items in the inmates’ possession through increased cell searches. Ward v. Washtenaw Cty. Sheriff’s Dept., 881 F.2d at 329. The lack of obvious, reasonable alternatives to the rules is further evidence of their reasonableness.

[¶ 20] We hold the rules adopted by the penitentiary are reasonable and are reasonably related to legitimate penological interests. Thus the rules do not violate Larson’s constitutional rights. Prison officials did not violate Larson’s rights because the warden did not exceed his statutory authority in adopting and enforcing these rules. We affirm the district court’s order denying Larson’s application for a writ of certiorari.

[¶ 21] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: CROTHERS, Justice.

text:
    2006 ND 77
    STATE of North Dakota, Plaintiff and Appellee, v. Ryan GENRE, Defendant and Appellant.
    Nos. 20050238, 20050239, 20050247, 20050248.
    Supreme Court of North Dakota.
    April 19, 2006.

      James P. Wang (argued), States’s Attorney, Minnewaukan, N.D., and Kathleen Kay Trosen (argued), State’s Attorney, Fessenden, N.D., for plaintiff and appellee.
    Robin L. Olson, Olson Johnston Law Office, Grand Forks, N.D., for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Ryan Genre appeals from the district court orders denying his motions to suppress evidence and from the criminal judgments entered after he conditionally pled guilty. We affirm the district courts’ judgments and orders denying Genre’s motions to suppress.

I

[¶ 2] On February 20, 2004, Wells County Deputy Sheriff Allen Kluth stopped Genre for' speeding. Upon approaching Genre’s vehicle, Deputy Kluth saw a rifle lying on the backseat and an open container of alcohol on the vehicle’s console. He also detected the odor of alcohol emanating from the vehicle and observed that Genre had bloodshot eyes and appeared to be nervous. Deputy Kluth asked Genre if he had any guns, weapons, or drugs, and Genre said there was a rifle on the backseat and a can of beer in the cup holder. Deputy Kluth asked Genre to exit the vehicle and Genre complied. At some point, Deputy Kluth asked Genre if he could search Genre and his vehicle, and Genre said, “Sure, go ahead.”

[¶ 3] While conducting the search, Deputy Kluth seized a rolled up piece of tin foil containing a white residue from Genre’s pants pocket. . Deputy Kluth asked Genre what the tin foil was, and Genre responded, “You know what that is.” Deputy Kluth asked Genre if he had any more, and Genre told him there were coffee filters under the backseat in a yellow bag. Deputy Kluth did not advise Genre of his Miranda rights, but told Genre he was under arrest and placed him in the squad car. Deputy Kluth searched the vehicle, seizing drugs, paraphernalia, beer, and a rifle.

[¶ 4] When Deputy Kluth told Genre he was going to jail, Genre requested to speak to the state’s attorney. Deputy Kluth took Genre to the Harvey Police Department to meet with the Wells County State’s Attorney where, on arrival, Genre was immediately given the Miranda warning. Genre said he understood his rights, did not request an attorney, and gave a voluntary statement. Genre admitted the coffee filters contained methamphetamine and he had been smoking methamphetamine earlier in the evening. Genre also described how he acquired the filters.

[¶ 5] During this meeting the parties discussed fines and jail time, and it was agreed that Genre would not go to jail that night because he gave some information and was considering working with law enforcement by participating in controlled purchases of drugs. Genre claims the state’s attorney told him he would not be charged if he provided information and participated in some controlled buys.

[¶ 6] On February 23, 2004, Genre met with Deputy Kluth and Bureau of Criminal Investigations Agent Craig Zachmeier. No state’s attorney was present at this meeting. Agent Zachmeier advised Genre his cooperation would only be considered to mitigate any fines or jail time and would not result in dismissal of any charges. Agent Zachmeier also advised Genre he did not have authority to make a plea agreement, but could make recommendations for sentencing. After Genre was informed he did not have to speak to the officers and was given the Miranda warning, Genre gave a statement. Genre was given thirty days to decide whether he wanted to work with law enforcement.

[¶ 7] On April 13, 2004, Genre met with Bureau of Criminal Investigations Agent Mark Hendrickson to discuss working as a confidential informant. Agent Hendrick-son advised Genre what he would need to do to work with law enforcement, including staying sober and being truthful.

[¶ 8] At about the same time, Genre’s attorney contacted the Wells County State’s Attorney to try to reach a formal plea agreement. Genre offered to plead guilty to a misdemeanor marijuana charge. The state’s attorney testified that a formal agreement was never reached.

[¶ 9] Genre met with Agent Hendrick-son again on April 20, 2004 at the Lake Region Law Enforcement Center, located in Devils Lake, North Dakota. Genre admitted to recently using methamphetamine. Agent Hendrickson told Genre he believed Genre had illegal narcotics in his vehicle and his hotel room at the Spirit Lake Casino and Resort, located in Benson County. After Agent Hendrickson asked Genre for consent to search Genre’s hotel room and told Genre he would be detained until a search warrant was obtained, Genre gave consent both verbally and in writing. Law enforcement officers searched Genre’s hotel room and vehicle, and seized Ecstasy and methamphetamine paraphernalia from the hotel room. Agent Hen-drickson told Genre that he was trying to help Genre get clean so he could work for them. Genre was not arrested or charged at that time.

[¶ 10] Genre met with Agent Hendrick-son again on April 23, 2004. Genre tested positive for narcotics and was arrested on the Wells County charges of possession with intent to deliver and possession of drug paraphernalia arising from the February 20, 2004, traffic stop. Genre was later arrested and charged in Benson County with possession of drug paraphernalia and possession of methamphetamine based on the evidence seized during the search of the hotel room on April 20.

[¶ 11] Genre brought motions to suppress evidence in both Wells County and Benson County. Both district courts denied his motions. Genre subsequently.entered conditional pleas of guilty to the charges in both counties, reserving the right to appeal. Genre appealed from the orders denying his motions to suppress and from his convictions.

II

[¶ 12] The standard of review is well established for reviewing a district court’s decision on a motion to suppress:

We will defer to a trial court’s findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be ■resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a trial court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court’s findings, and if its decision is not contrary to the manifest weight of the evidence.

State v. Tollefson, 2003 ND 73, ¶ 9, 660 N.W.2d 575 (quoting State v. Heitzmann, 2001 ND 136, ¶ 8, 632 N.W.2d 1). Questions of law are reviewed under the de novo standard of review. Tollefson, at ¶ 9.

Ill

[¶ 13] Genre argues the district court in the Wells County action erred in denying his motion to suppress evidence found during the search of his vehicle and his person because Deputy Kluth violated Genre’s Fourth Amendment rights when he seized Genre by ordering him out of the vehicle and searching him, and because Genre did not consent to the search.

A

[¶ 14] Genre argues Deputy Kluth exceeded the scope of the traffic stop when he asked Genre to exit the vehicle and this continued seizure, beyond what was necessary to issue a traffic citation, violated his Fourth Amendment rights.

[¶ 15] Unreasonable searches and seizures are prohibited by U.S. Const, amend. IV and N.D. Const, art. I, § 8. “To justify a greater intrusion unrelated to the traffic stop, the totality of the circumstances known to the officer must meet the requisite level of reasonable suspicion under Terry.” State v. Guscette, 2004 ND 71, ¶ 24, 678 N.W.2d 126 (quoting United States v. Ramos, 20 F.3d 348, 352 (8th Cir.1994), rev’d on other grounds, 42 F.3d 1160 (8th Cir.1994)).

[¶ 16] Deputy Kluth testified that upon approaching the vehicle he saw a rifle on the backseat and an open beer can. The open can of beer was a violation of the open container law, N.D.C.C. § 39-08-18. Deputy Kluth also observed the odor of alcohol emanating from the vehicle and that Genre had bloodshot eyes and appeared to be nervous. Deputy Kluth’s observations were sufficient to create a reasonable suspicion that criminal activity was afoot and to justify expanding the scope of the stop. Therefore, Genre’s continued seizure was not unreasonable.

B

[¶ 17] Warrantless searches are unreasonable unless they fall within a recognized exception to the warrant requirement. State v. Wanzek, 1999 ND 163, ¶ 7, 598 N.W.2d 811. Consent is one exception to the warrant requirement. State v. Mitzel, 2004 ND 157, II13, 685 N.W.2d 120. Under the standard of review for motions to suppress, “we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance.” State v. Haibeck, 2004 ND 163, ¶ 8, 685 N.W.2d 512.

[¶ 18] At the Wells County suppression hearing, Genre testified in response to questions about the searches:

[H]e asked me to step out of the vehicle and told me he was going to pat me down for his safety and then he asked me, while he was patting me down, if he could search the vehicle and I believe I said — I believe I just said yeah.

Deputy Kluth was asked if he performed a pat down of Genre after Genre exited the vehicle, and Deputy Kluth testified, “Yeah. At that time, I asked him if it was okay if I searched him and he stated it was okay.” Deputy Kluth also testified to asking Genre if he could search the vehicle and Genre responded, “okay, go ahead.”

[¶ 19] The district court found Deputy Kluth asked for and Genre consented to the search of both his person and the vehicle. Applying the standard of review set out above, evidence supports the district court’s conclusion Genre consented to both searches.

[¶ 20] Genre argues this case is compa-' rabie to Mitzel, 2004 ND 157, 685 N.W.2d 120. In Mitzel, the defendant invited the police into the house. Id. at ¶ 3. The defendant told the officer he would get the other person in the house, but when the officer said he had to accompany the defendant, the defendant shrugged in response. Id. The officer then followed the defendant to the bedroom. Id. at ¶ 4. This Court held, “[m]ere acquiescence to police authority is insufficient to show consent” and “[c]onsent must be unequivocal.” Id. at ¶¶ 16-17. The test is whether a reasonable person would believe the person’s conduct showed consent. Id. at ¶ 17.

[¶ 21] This case is different than Mit-zel. Genre did not merely acquiesce to the officers authority. The district court found Deputy Kluth asked for consent to search and Genre gave explicit consent. We conclude the district court’s findings are supported by evidence that Genre consented to search of both his person and his vehicle. We, therefore, affirm the district court’s decision denying Genre’s motion to suppress the evidence seized as a result of the search of Genre and his vehicle.

IV

[¶ 22] Genre argues the district court in the Wells County action erred in denying his motion to suppress the statements he made during the traffic stop. Genre argues the stop went beyond a traffic stop when Deputy Kluth asked Genre to exit the vehicle, began questioning Genre, and asked if he could search Genre and the vehicle. Genre argues his Fifth Amendment right against self-incrimination was violated when Deputy Kluth questioned him during the stop without giving him a Miranda warning.

[¶ 23] An officer is required to administer the Miranda warning when a person is subject to custodial interrogation. State v. Martin, 543 N.W.2d 224, 226-27 (N.D.1996). A suspect is in custody when there is a formal arrest or restraint on the suspect’s freedom of movement to the degree associated with a formal arrest. Id. at 226. When determining if a person is subject to custodial interrogation the court examines all circumstances surrounding the interrogation and considers what a “ ‘reasonable man in the suspect’s position would have understood his situation.’ ” Id. (quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). Whether a suspect is “in custody” and entitled to a Miranda warning is a mixed question of law and fact and, therefore, is fully reviewable on appeal. Martin, at 226.

[¶ 24] An individual detained during a routine traffic stop generally is not “in custody” for the purposes of Miranda. See Berkemer, 468 U.S. at 437-38, 104 S.Ct. 3138; State v. Fasching, 453 N.W.2d 761, 763-64 (N.D.1990). Likewise, ordering a driver out of the vehicle for officer safety or to issue a citation is reasonable and does not result in a custodial interrogation. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); State v. Mertz, 362 N.W.2d 410, 412 (N.D.1985) (ordering driver into a squad car was reasonable).

[¶ 25] Here, Genre was not “in custody” for purpose of Miranda during the traffic stop. Deputy Kluth saw a rifle lying on the backseat of Genre’s vehicle and did not know if the rifle was loaded. Deputy Kluth asked Genre to exit his vehicle, and Genre complied. Deputy Kluth’s request was reasonable and did not transform the stop into a custodial interrogation.

[¶ 26] Deputy Kluth began questioning Genre after Genre exited the vehicle. During a traffic stop, a driver should reasonably expect to answer common sense investigatory questions; questioning during a traffic stop does not become a custodial interrogation simply because the officer asks a question that may establish an element of a crime. Martin, 543 N.W.2d at 227-28. Deputy Kluth detected the odor of alcohol upon approaching the vehicle, noticed Genre’s eyes were bloodshot and observed Genre appeared to be nervous; therefore, Genre could reasonably expect to answer investigatory questions regarding alcohol consumption. See In the Interest of Z.C.B., 2003 ND 151, ¶ 9, 669 N.W.2d 478. Deputy Kluth also saw an open can of beer and a rifle in the vehicle. Therefore, Genre could reasonably expect to answer questions regarding those items as well.

[¶ 27] Under these circumstances, a reasonable person in Genre’s position would not believe that exiting his vehicle and answering general investigatory questions was a restraint on his freedom of movement to the degree associated with a formal arrest. Genre was not subject to a custodial interrogation, and the protections afforded to him under Miranda were not applicable. Genre’s Fifth Amendment rights were not violated, and we affirm the district court’s decision denying Genre’s motion to suppress the statements he made during the traffic stop.

V

[¶ 28] Genre argues the district court in the Benson County action erred in denying his motion to suppress evidence seized during the Benson County search of his vehicle and his hotel room because his consent was involuntary.

[¶ 29] On April 20, 2004, Genre met with Agent Hendrickson at the Lake Region Law Enforcement Center. When Genre was advised that he must be truthful if he wanted to work with law enforcement, he confessed to recently using methamphetamine. Agent Hendrickson then asked if he could search Genre’s hotel room. Genre consented after he was told he would be detained until a warrant was obtained. Genre was informed that no charges would result if officers found anything illegal during the search; the search was to help Genre get clean so he could work with law enforcement. Genre ultimately agreed to the search, both verbally and in writing.

[¶ 30] Consent is an exception to the warrant requirement, but the consent must be voluntary. Mitzel, 2004 ND 157, ¶ 25, 685 N.W.2d 120. Voluntariness is a question of fact to be resolved by the trial court, and “ ‘because the trial court is in a superior position to judge credibility and weight, we show great deference to the trial court’s determination of voluntariness.’ ” State v. Helmenstein, 2000 ND 223, ¶ 18, 620 N.W.2d 581 (quoting State v. Taillon, 470 N.W.2d 226, 228 (N.D.1991)). The burden of proof is on the State to prove consent was voluntary. Mitzel, at ¶ 25.

[¶ 31] Consent is voluntary when it is 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. Whether consent is voluntary depends upon the totality of the circumstances. Id. at ¶ 25. To determine voluntariness we consider:

(1) the characteristics and condition of the accused at the time of the [consent], including age, sex, race, education level, physical or mental condition, and prior experience with police; and (2) the details of the setting in which the [consent] was obtained, including the duration and conditions of detention, police attitude toward the defendant, and the diverse pressures that sap the accused’s powers of resistance or self control.

Haibeck, 2004 ND 163, ¶21, 685 N.W.2d 512 (quoting State v. Syvertson, 1999 ND 134, ¶ 20, 597 N.W.2d 652). No one factor is determinative. Mitzel, at ¶ 26.

[¶ 32] The district court concluded Genre voluntarily gave consent to search his hotel room and vehicle. The district court considered the characteristics and condition of Genre at the time of the consent, including his prior contact with law enforcement, his education level, and his mental state. The court also considered Genre’s recent drug use and the effect it could have on his mental capacity, but concluded the drug use did not render the consent involuntary. These facts support the court’s conclusion that the first factor does not weigh in favor of or against finding consent was voluntary.

[¶ 33] After thoroughly reviewing the second factor, the district court concluded it favored finding the consent was voluntary. The court found the following facts in favor of voluntariness: Genre voluntarily met with agents, officers did not attempt to exert any physical control, Genre made a call on his cell phone during the interview which officers did not attempt to prohibit, and Genre was not in custody at the time he gave consent. The court considered the officer’s statement to Genre that, if he did not consent to the search, he would be detained until the officer was able to obtain a warrant. Telling a defendant he will be detained until a search warrant is obtained does not automatically invalidate consent. Mitzel, 2004 ND 157, ¶28, 685 N.W.2d 120. The court also concluded the officers were not unreasonably coercive, although it found the officers’ implied promises of lenity if Genre gave consent did weigh in favor of involuntariness. State v. Pickar, 453 N.W.2d 783, 787 (N.D.1990). The court found the officers’ non-confrontational attitude was intended to induce consent, but did not amount to coercion. The court went on to conclude Genre’s will was not overborne at the time of giving consent, and therefore, the confession was not the product of coercion.

[¶ 34] The district court’s finding that the consent was voluntary is supported by sufficient competent evidence and is not contrary to the manifest weight of the evidence. Therefore, we affirm denial of Genre’s motion to suppress evidence seized as a result of the search of his hotel room and vehicle.

VI

[¶ 35] Genre argues the district courts in both the Wells County and Benson County actions erred in denying his motions to suppress the statements he made to the state’s attorney and investigating officers because the statements were made during a plea negotiation and are inadmissible under N.D.R.Crim.P. 11.

[¶ 36] Rule 11(d), N.D.R.Crim.P., states, “[t]he admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by N.D.R.Ev. 410.” Rule 410, N.D.R.Ev., provides:

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo con-tendere to the crime charged or any other crime, or of statements made in connection with and relevant to any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.

[¶ 37] To determine whether a discussion constitutes a plea negotiation the court must consider the totality of the circumstances and apply a two-tiered analysis. See, e.g., United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir.1978). The court must first determine whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion. Id. If the accused exhibited such an expectation, the court must determine whether the expectation was reasonable given the totality of the objective circumstances. Id. When making this determination the court must distinguish between “those discussions in which the accused was merely making an admission and those discussions in which the accused was seeking to negotiate a plea agreement.” Id. at 1367; see also United States v. Hare, 49 F.3d 447, 450 (8th Cir.1995) (Fed.R.Evid. 410 does not apply to statements made either before or after- plea negotiations). Whether a statement is given in the course of a plea negotiation is a mixed question of fact and law, subject to the de novo standard of review. United States v. Morgan, 91 F.3d 1193, 1195 (8th Cir.1996).

[¶ 38] Genre met with law enforcement officers on several occasions between February 20, 2004, and April 23, 2004. Genre argues he subjectively believed he was engaged in plea negotiations during these meetings. Genre testified at the suppression hearing that he thought he had reached a formal plea agreement on February 20, but if that was the case, his subsequent actions contradicted his belief. As late as April 13, 2004, Genre’s attorney contacted the state’s attorney to discuss a possible plea agreement. Genre’s attorney told the state’s attorney Genre would be willing to plead guilty to a misdemeanor marijuana charge. This raises serious doubt whether Genre subjectively believed he had reached a formal plea agreement with the state’s attorney on February 20.

[¶ 39] Even if Genre subjectively believed he was engaged in plea negotiations during these meetings, that belief was unreasonable. When determining whether a suspect’s belief is reasonable, a court considers factors such as whether the suspect was in custody or charged with a crime and whether there was any discussion of pleas or charges. See United States v. Guerrero, 847 F.2d 1363, 1368 (9th Cir.1988). The court also considers whether normal plea discussion events occurred, including: (1) a specific plea offer is made; (2) a deadline to plead is imposed; (3) an offer to drop specific charges is made; (4) discussion of sentencing guidelines for the purpose of negotiating a plea; and (5) a defense attorney is retained to assist in the formal plea bargain process. See Morgan, 91 F.3d at 1196.

[¶ 40] During the February 20, 2004, meeting, after the traffic stop, Genre was in custody, but had not been charged. The parties did not discuss any specific charges or pleas, and the only agreement reached was that Genre would not go to jail that night because he provided some information and was considering working with law enforcement. In addition, normal plea discussions did not take place during the February 20 meeting. Genre did not offer to plead guilty to anything. He was not given a deadline to agree to plead guilty to any charge. Although the district courts found the state’s attorney did say she might not charge Genre if he cooperated with law enforcement and made some controlled buys, Genre did not agree to work with law enforcement until a later date and never actually made any controlled buys. There was only general sentencing discussion, and that discussion was not for the purpose of negotiating a plea. Genre’s attorney was not present. We conclude any belief on Genre’s part that a plea negotiation took place during the February 20 meeting was unreasonable.

[¶ 41] The admissions Genre made during the February 20 meeting were made as part of an arrangement to keep Genre out of jail that night, not as part of a plea negotiation. The language of N.D.R.Ev. 410 is clear; the rule only applies to statements made in connection with and relevant to a withdrawn plea of guilty, a plea of nolo contendere, or an offer to plead guilty or nolo contendere. It does not apply to offers to cooperate. An offer to cooperate is not the same as an offer to plead guilty. See, e.g., Guerrero, 847 F.2d at 1367. The only offer made on February 20 was for Genre to cooperate with police, and in exchange Genre would not go to jail that night and his cooperation would be taken into consideration when he was charged.

[¶ 42] We also conclude it was unreasonable for Genre to believe he was engaged in plea negotiations during the meetings with law enforcement officers after February 20, 2004. At each of these meetings the officers informed Genre he did not have to speak to them and they did not have the authority to offer him a plea agreement. No pleas or charges were discussed, and Genre did not offer to plead guilty to any charge. During this time period, Genre’s attorney attempted to begin plea discussions with the Wells County State’s Attorney, but Genre was not involved in these discussions and they are not at issue. Any statement made in an attempt to cooperate, either before or after a plea agreement has been reached, is not entitled to the protection of Rule 410. Hare, 49 F.3d at 451. We conclude the statements Genre made to law enforcement following the February 20 meeting were offered unconditionally in an effort to cooperate with the hope of receiving some type of assistance and were not plea negotiations, and therefore, Rule 410 is not applicable.

[¶ 43] We conclude the statements Genre made during the meetings with law enforcement, including the February 20 meeting with the state’s attorney, were made in an attempt to cooperate and were not made as part of a plea negotiation, therefore N.D.R.Ev. 410 is not applicable. We affirm the district courts’ denial of Genre’s motions to suppress the statements.

VI

[¶ 44] We conclude the district courts did not err in refusing to suppress evidence produced in the search of Genre’s vehicle, Genre’s statements during the vehicle stop, evidence produced in the search of Genre’s hotel room, and Genre’s subsequent statements to law enforcement officers. We affirm the district courts’ judgments and orders denying Genre’s motions to suppress.

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

      . N.D.R.Crim.P. 11(d)(6) was amended effective March 1, 2006. When existing rules are amended or new rules are added this Court will apply those rules to actions then pending unless their application is not feasible or would work an injustice. In the Interest of T.F., 2004 ND 126, ¶ 8, 681 N.W.2d 786. In this case, the amendment to Rule 11 was not a substantive change, but was made to incorporate federal form and style. Minutes of the Joint Procedure Comm. 28 (April 29-30, 2004). Therefore, we will apply the new version of the rule.


author: KAPSNER, Justice.

text:
    2006 ND 81
    Gerri MARCHUS, Plaintiff and Appellant, v. Derle O. MARCHUS, Defendant and Appellee.
    No. 20050329.
    Supreme Court of North Dakota.
    April 19, 2006.

      Marina Spahr, Murphy & Spahr Law Office, P.C., Carrington, N.D., for plaintiff and appellant.
    Derle 0. Marchus, pro se, Bismarck, N.D.
   KAPSNER, Justice.

[¶ 1] Gerri Marchus appeals from a district court order vacating Derle Mar-chus’s child support obligation effective January 2001. We hold the district court abused its discretion in retroactively modifying Derle Marchus’s child support obligation, and we reverse the court’s order.

I

[¶ 2] Gerri Marchus and Derle Mar-chus were married in 1977, had three children, and were divorced in Eddy County in 1998. At the time of the divorce the parties had two minor children. Gerri Marchus was awarded custody of those two children, and Derle Marchus was ordered to pay her monthly child support until the youngest child turned eighteen, unless she was still in high school, then until the end of her senior year or she turned nineteen, whichever came first. Derle Marchus became delinquent on his child support obligation, and there were enforcement proceedings against him in Burleigh County, where he had moved after the divorce.

[¶ 3] In November 2002, Derle Mar-chus filed a motion in Burleigh County to amend the divorce judgment to grant him custody of the youngest child and to award him child support for the period of time that he claimed the child had actually resided with him. However, his motion was filed in an improper venue, and Derle Mar-chus subsequently refiled his motion in September 2003, in the venue of the original divorce proceedings, Eddy County.

[¶ 4] After an evidentiary hearing, the district court found the youngest child had moved out of Gerri Marchus’s home while still a minor in January 2001. The court found the youngest child resided with Derle Marchus for approximately four to six months, and thereafter lived with relatives, including her brother in Bismarck and her sister in Fargo. The youngest child turned eighteen in November 2002, and was not then attending high school. She did not return to either parent’s home. The court specifically found that Derle Marchus “somewhat” supported the child financially after she left his home, and that Gerri Marchus did not support the child after January 2001. The court denied Derle Marchus’s motion for change of custody and his request for back child support. The court, however, ruled Derle Marchus’s child support obligation ended in January 2001, concluding Gerri Marchus had ceased to be the custodial parent after the child moved out of her home. The court vacated Derle Marchus’s child support obligation effective January 2001.

II

[¶ 5] Gerri Marchus argues the district court erred in retroactively modifying Derle Marchus’s child support obligation. We agree.

[¶ 6] Child support determinations involve questions of law subject to a de novo standard of review, findings of fact subject to a clearly erroneous standard of review, and may include matters of discretion subject to an abuse of discretion standard of review. Lukenbill v. Fettig, 2001 ND 47, ¶ 9, 623 N.W.2d 7 (quoting Buchholz v. Buchholz, 1999 ND 36, ¶¶ 11-12, 590 N.W.2d 215). A district court’s decision setting an effective date for a modified child support obligation is discretionary and will not be overturned on appeal absent an abuse of discretion. Bertsch v. Bertsch, 2006 ND 31, ¶ 7, 710 N.W.2d 113. A court abuses its discretion if it acts arbitrarily, capriciously, or unreasonably, or if it misapplies or misinterprets the law. Id. at ¶¶ 5, 8.

[¶ 7] The child support guidelines contemplate that child support payments are to be made by the non-custodial parent to the custodial parent. Edwards v. Edwards, 1997 ND 94, ¶ 15, 563 N.W.2d 394 (citing Dalin v. Dalin, 545 N.W.2d 785, 789 (N.D.1996)). Further, the guidelines expressly prohibit an abatement for temporary periods in which the child resides with the non-custodial parent. See N.D. Admin. Code § 75-02-04.1-02(2); Edwards, at ¶ 15. Under N.D.C.C. § 14-08.1-05, a due and unpaid child support payment becomes a judgment as a matter of law. Darling v. Gosselin, 1999 ND 8, ¶ 7, 589 N.W.2d 192.

[¶ 8] A court has continuing jurisdiction to modify child support. Steffes v. Steffes, 1997 ND 49, ¶ 14, 560 N.W.2d 888. A vested child support obligation, however, cannot be retroactively modified. Id.; Brakke v. Brakke, 525 N.W.2d 687, 690 (N.D.1994); see also N.D.C.C. § 14-08.1-05(1)(c) (stating due and unpaid child support not subject to retroactive modifi cation). When a court forgives past due child support obligations, it has modified a child support order. Morton County Soc. Serv. Bd. v. Hakanson, 2003 ND 78, ¶ 7, 660 N.W.2d 599 (citing Koch v. Williams, 456 N.W.2d 299, 301-02 (N.D.1990)). Generally, a modification of child support should be made effective from the date of the motion to modify, absent good reason to set some other date, and the “court retains discretion to set some later effective date, but its reasons for doing so should be apparent or explained.” Geinert v. Geinert, 2002 ND 135, ¶ 10, 649 N.W.2d 237 (emphasis added).

[¶ 9] Here, the district court specifically denied Derle Marchus’s motion to modify custody and for back child support based upon his failure to bring the motion promptly. In fact, the child turned eighteen in November 2002, the same month in which Derle Marchus initially attempted to bring his motion in Burleigh County. The court nevertheless determined that Gerri Marchus ceased to be the custodial parent when the child moved out of her home in January 2001, and vacated Derle Mar-chus’s child support obligation effective January 2001. The court effectively reduced Derle Marchus’s obligation to zero and made the order retroactive to January 2001. By setting the effective date of the order modifying Derle Marchus’s child support obligation to a date before he made his motion to modify, the court made an impermissible retroactive modification of his child support obligation. We conclude the court misapplied the law in setting the effective date for the modification and therefore abused its discretion.

[¶ 10] We also agree with Gerri Mar-chus that this case is not governed by Brakke v. Brakke, 525 N.W.2d 687 (N.D. 1994). In Brakke, this Court recognized a narrow departure from the rule of no retroactive modification of child support obligations. See Brakke, at 690. In Krizan v. Krizan, 1998 ND 186, ¶ 11, 585 N.W.2d 576, we succinctly summarized our decision in Brakke:

Brakke involved an agreement by both parents to change custody of their daughter for an extended period of time. Following this change, the father requested retroactive relief from his child support payments under a prior judgment. We concluded Rule 60(b)(vi), N.D.R.Civ.P., could be applied to relieve the father from his child support obligations back to the date he became the child’s custodial parent. However, in retroactively invalidating Mr. Brakke’s support payments, we clearly stated this decision was not a retraction from our position that “vested support rights cannot be retroactively modified.” Thus, application of Brakke is limited to cases where both parties agree to an actual change in custody for an extended period of time.

In Erizan, we held that unlike Brakke, there was not an agreement to change custody, but instead only an agreement to increase visitation upon the recommendation or advice of a counselor. Erizan, at ¶ 12. We said an agreement to extend visitation is not the same as an agreement to change custody. Id.

[¶ 11] This Court’s decision in Brakke is distinguishable. Here, there was no express agreement between Gerri Mar-chus and Derle Marehus for an actual change in custody for an extended period of time. It is undisputed that when the youngest daughter went to live with Derle Marehus, neither party contemplated or agreed to a change of custody of the child for an extended period of time. In her appellate brief, Gerri Marehus stated she anticipated the youngest daughter’s return to her home and asserts, “[S]he knew that after the newness of the move wore off and reality set [in] that [the child] would not like living with Derle or be cared for properly by Derle.” Further, during oral argument to this court, Derle Marehus also conceded that there was no agreement between Gerri Marehus and him to change custody. There was in fact no actual change of custody for an extended period of time. The district court found the youngest daughter lived with Derle Mar-ehus for approximately four to six months, which can not be characterized as an extended period of time. The court also found the child thereafter lived with other family members. Although the youngest daughter was not actually living with the custodial parent, this fact alone does not permit Derle Marehus as the non-custodial parent to be relieved of his past child support obligation once the amounts had already accrued.

[¶ 12] Also, unlike Brakke, when Derle Marehus did ultimately bring his motion to amend the judgment, it was brought under N.D.R.Ct. 3.2. Derle Marehus did not request relief from judgment under N.D.R.Civ.P. 60(b). We therefore conclude Brakke is not controlling. By forgiving Derle Marchus’s past due child support obligation effective January 2001, the district court retroactively modified his child support obligation. We reverse the district court’s order vacating Derle Mar-chus’s obligation effective January 2001.

[¶ 13] Without citation to any relevant authority, Gerri Marehus also requests an award of attorney’s fees and costs for this appeal. We conclude she is not entitled to attorney fees, and we deny her request.

Ill

[¶ 14] The district court order is reversed.

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


author: MARING, Justice.

text:
    2006 ND 79
    In the Interest of Payton R. SPICER. Payton R. Spicer, Amanda R. Collette, the parent and natural Guardian of Payton R. Spicer, Plaintiffs and Appellees, and The Grand Forks County Social Service Board, Assignee for Amanda R. Collette, Plaintiff, v. Nathan M. Spicer, Defendant and Appellant.
    No. 20050366.
    Supreme Court of North Dakota.
    April 19, 2006.

      Sherylin K. Jordan, Rosenquist & Arna-son, Grand Forks, N.D., for plaintiffs and appellees.
    Patti J. Jensen, Galstad, Jensen & McCann, PA, East Grand Forks, MN, for defendant and appellant.
   MARING, Justice.

[¶ 1] Nathan Spicer appealed from an amended judgment denying his request to hold Amanda Collette in contempt for failing to comply with the visitation provisions of an existing judgment, finding Spicer consented to Collette’s move to Michigan with the parties’ child, and modifying the visitation schedule. We conclude the district court addressed the contempt issue and did not abuse its discretion in finding Collette was not in contempt; the court did not clearly err in finding Spicer consented to the child’s move to Michigan; and the court did not clearly err in modifying the parties’ visitation schedule. We affirm the amended judgment.

I

[¶ 2] The parties have one child together, who was born in 2001. In 2002, the parties agreed Collette would be the child’s custodial parent and Spicer would have reasonable visitation. The district court subsequently incorporated the parties’ agreement into a judgment. An amended judgment was entered in 2003, setting child support. In 2004, a second amended judgment was entered, establishing a visitation schedule.

[¶ 3] Shortly after the second amended judgment was entered, Collette was accepted into a physician’s assistant program in Michigan. Collette notified Spicer of her intention to move to Michigan with the child. Spicer admits he agreed to the move, subject to Collette agreeing to a visitation schedule. The parties reached an agreement regarding visitation; however, they did not reduce their agreement to writing and they dispute the terms of that agreement.

[¶ 4] In April 2005, a dispute arose between the parties regarding Spicer’s visitation under the oral agreement. During an April visitation with Spicer in North Dakota, Collette took the child back to Michigan without giving Spicer notice. Spicer obtained an ex parte order requiring Collette return the child to North Dakota to finish the April visitation. Collette received notice of the order, but failed to return the child.

[¶ 5] In May 2005, Spicer requested and received an order to show cause why Collette should not be found in contempt for failure to comply with the visitation schedule set out in the second amended judgment. Spicer also moved to modify the visitation schedule. After a hearing, the district court found Collette was not in contempt and Spicer consented to the move to Michigan. The court also modified the parties’ visitation schedule.

II

[¶ 6] Spicer argues the district court erred in failing to address the order to show cause. He argues the evidence is clear that Collette refused to comply with the court’s April ex parte order, and therefore, the court should have found her in contempt. Spicer also argues the court failed to address his request for attorney’s fees. He seeks a remand with instructions for the court to find Collette in contempt and to issue an order for appropriate sanctions.

A

[¶ 7] Spicer’s motion sought to find Collette in contempt for failing to comply with the second amended judgment, which set out the terms of visitation before she moved to Michigan. His motion did not seek to find Collette in contempt for failure to comply with the April ex parte order, and we therefore reject Spicer’s claim regarding the April ex parte order.

B

[¶ 8] We have consistently held that the district court must provide an adequate explanation for us to understand the basis for its decision. See, e.g., State v. Bergstrom, 2006 ND 45, ¶ 15, 710 N.W.2d 407; VND, LLC v. Leevers Foods, Inc., 2003 ND 198, ¶ 27, 672 N.W.2d 445. However, we will not reverse a district court’s decision when “valid reasons are fairly dis-cernable, either by deduction or inference.” Huntress v. Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351.

[¶ 9] In this case, the district court did not make specific findings on the issue of contempt. Although we encourage the court to make specific findings, we can ascertain the basis for its decision. The court acknowledged that Spicer had brought a motion for contempt, and in the context of discussing visitation, the court concluded confusion and turmoil resulted after the parties failed to reduce their post-relocation visitation agreement to writing. The court discussed the resulting disagreements that surrounded visitation. The court found Collette’s move to Michigan was a material change that necessitated a modification of visitation.

[¶ 10] We can infer from the court’s discussion that the court determined the parties’ confusion about the oral visitation agreement was the reason Collette failed to comply with the second amended judgment. We conclude the court’s explanation is sufficient for us to understand that the court concluded Collette was not in contempt. Moreover, the district court also specifically addressed Spicer’s request for attorney’s fees and concluded each party was responsible for his or her own attorney’s fees.

[¶ 11] “Civil contempt requires a willful and inexcusable intent to violate a court order.” BeauLac v. BeauLac, 2002 ND 126, ¶10, 649 N.W.2d 210 (quoting Flattum-Riemers v. Flattum-Riemers, 1999 ND 146, ¶5, 598 N.W.2d 499). Whether or not contempt has been committed is within the district court’s discretion. Montgomery v. Montgomery, 2003 ND 135, ¶ 18, 667 N.W.2d 611. The district court’s finding of contempt “will not be overturned unless there is a clear abuse of discretion.” Id. (quoting BeauLac, at ¶ 10). A court abuses its discretion if the court acts arbitrarily, unreasonably, or unconscionably, or if it misinterprets or misapplies the law. Montgomery, at ¶ 18.

[¶ 12] The district court’s explanation and findings about the parties’ confusion resulting from their visitation agreement are supported by the record, and support a determination that Collette did not willfully and inexcusably violate the second amended judgment. We conclude the court did not act arbitrarily, unreasonably, or unconscionably, or misinterpret or misapply the law in deciding Collette was not in contempt for failure to comply with the second amended judgment. We therefore conclude the court did not abuse its discretion in finding Collette was not in contempt.

Ill

[¶ 13] Spicer argues the district court erred in finding he consented to Collette’s move to Michigan with the parties’ child.

[¶ 14] Section 14-09-07, N.D.C.C., states, “[a] parent entitled to the custody of a child may not change the residence of the child to another state except upon order of the court or with the consent of the non-custodial parent, if the noncustodial parent has been given visitation rights by the decree.” Whether the non-custodial parent consented to the relocation of the child is a factual question, and this Court will not substitute its judgment for that of the district court unless the court’s decision is clearly erroneous under N.D.R.Civ.P. 52(a). A district court’s finding is clearly erroneous “only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made.” Stout v. Stout, 1997 ND 61, ¶ 7, 560 N.W.2d 903.

[¶ 15] The district court found Spicer consented to Collette’s move to Michigan with their minor child. The court’s finding is supported by Spicer’s testimony. Spicer testified regarding Collette’s decision to move to Michigan, stating, “We spoke about it and I realized that it is, you know, to better herself that I should not hold her back in North Dakota so I let her go, although we did not come to an agreement for visitation until right before she left.” Spicer was also asked if he gave Collette permission to move to Michigan with the child, and he responded, “I gave her verbal communication she could leave.... That was my consent under the conditions we had.” There is evidence to support the court’s finding that Spicer gave Collette consent to move the child to Michigan. We are not left with a definite and firm conviction the court made a mistake, and the court’s decision is not clearly erroneous.

TV

[¶ 16] Spicer argues the district court erred in modifying the visitation schedule because the court failed to adopt his proposed visitation schedule and the evidence does not support restricting his visitation time.

[¶ 17] The district court’s decision on modification of visitation is a finding of fact that will not be reversed on appeal unless it is clearly erroneous. Bertsch v. Bertsch, 2006 ND 31, ¶ 5, 710 N.W.2d 113. The best interests of the child are paramount in awarding visitation, rather than the wishes or desires of the non-custodial parent. Id.

[¶ 18] This Court has long recognized that relocation may make it impossible for the non-custodial parent to enjoy the same visitation the parent had before the move. See Goff v. Goff, 1999 ND 95, ¶ 17, 593 N.W.2d 768. Therefore, some reduction in visitation may occur, but the goal is to provide sufficient visitation to allow the non-custodial parent and child to preserve and foster their relationship. Hawkinson v. Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144.

[¶ 19] Here, Spicer proposed a visitation schedule that would require the child spend alternating periods of six weeks with Collette and then four weeks with him. The district court decided Spicer’s proposed visitation schedule was too unstable. Instead, the court set a visitation schedule similar to that proposed by Col-lette, which allowed Spicer holiday and extended summer visitation. The court’s decision indicates it was concerned with the instability in Spicer’s proposed visitation schedule because of the child’s young age and the fact Collette wanted the child to begin pre-school. The court decided an extended summer visitation would better serve the child’s best interests and preserve Spicer’s relationship with the child. There is sufficient evidence to support the district court’s decision, and we are not left with a definite and firm conviction the court made a mistake.

[¶ 20] During oral argument to this Court, there was some question about whether the district court provided Col-lette with two unspecified weeks of visitation during Spicer’s 2006 summer visitation. The judgment provides, “[c]ommencing [s]ummer of 2006, [Spi-cer] is entitled to summer visitation with [the child] commencing June 17, 2006, through Saturday, July 1, 2006, and again from July 9, 2006, until August 13, 2006.” In a separate paragraph, the judgment sets out summer visitation starting in 2007 and includes a provision that Collette is entitled to spend two weeks with the child during Spicer’s summer visitation. The language providing Collette with two weeks of visitation during the summer applies only to 2007 and all years after, it does not apply to Spicer’s 2006 summer visitation. Collette conceded this during oral argument to this Court. Collette is only entitled to visitation between July 1 and July 9, during Spicer’s 2006 summer visitation.

[¶ 21] We conclude the district court’s decision modifying the parties’ visitation schedule is not clearly erroneous.

V

[¶ 22] Collette requests this Court award her attorney’s fees and costs associated with the appeal under N.D.R.App.P. 38.

[¶ 23] Rule 38, N.D.R.App.P., provides, “[i]f the court determines that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs, including reasonable attorney’s fees.” “An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith.” Healy v. Healy, 397 N.W.2d 71, 76 (N.D. 1986).

[¶ 24] We conclude Spicer’s appeal is not frivolous or taken in bad faith, and we deny Collette’s request for attorney’s fees.

VI

[¶ 25] We affirm the amended judgment and deny Collette’s request for her attorney’s fees and costs for appeal under N.D.R.App.P. 38.

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

DALE V. SANDSTROM, J„ concurs in the result.