author: ANDERSON, RUSSELL A., Justice.

text:
    Robert Marlyn TAYLOR, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-1432.
    Supreme Court of Minnesota.
    Jan. 27, 2005.
    Michael Clinton Davis, Special Assistant State Public Defender, St. Paul, MN, for Petitioner.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

Robert Marlyn Taylor was convicted of first-degree premeditated murder for the killing of John Turner and sentenced to life in prison. State v. Taylor, 650 N.W.2d 190 (Minn.2002). The facts underlying Taylor’s conviction can be found in our decision on direct appeal. Id. On direct appeal, Taylor raised, inter alia, a Batson issue claiming that the state’s peremptory strike of a juror constituted purposeful racial discrimination and violated the Equal Protection Clause of the Fourteenth Amendment. Taylor, 650 N.W.2d at 196. We denied his claim. Id. Taylor subsequently brought a petition for postconviction relief raising the same Batson issue previously decided on direct appeal. Before us now is Taylor’s appeal of the post-conviction court’s summary denial of his petition.

A postconviction court may summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals or the Supreme Court in the same case.” Minn.Stat. § 590.04, subd. 3 (2004). Further, this court held in State v. Knaffla that once a direct appeal has been taken, “all matters raised therein and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (“Knaffla rule”). There are two exceptions to the Knaffla rule: (1) if a novel legal issue is presented, or (2) if the interests of justice require review. Ives v. State, 655 N.W.2d 633, 636 (Minn.2003). The second exception may be applied if fairness requires it and the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal. Fox v. State, 474 N.W.2d 821, 825 (Minn.1991).

Taylor raised the same Batson issue on direct appeal and this court denied his claim. Therefore, under Minn.Stat. § 590.04, subd. 3, the postconviction court properly denied Taylor’s petition. Further, Taylor’s claim is barred under Knaff-la and neither exception to Knaffla applies in this case.

Affirmed.

      . Taylor did not argue in his briefs to this court that either exception to the Knaffla rule applies. His argument seems to be that the rationale and holding in the decision on direct appeal have been called into question by the United States Supreme Court opinion in Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), and our decision in State v. Reiners, 664 N.W.2d 826 (Minn.2003). However, neither case alters the Batson analysis applied on direct appeal in this case. Miller-El involves the jurisdictional prerequisite for obtaining review of the denial of habeas relief under the federal Anti-terrorism and Effective Death Penalty Act of 1996 and is inapplicable here. See Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Cf Patterson v. State, 670 N.W.2d 439, 441 n. 1 (Minn. 2003) (stating that Miller-El was inapplicable to the standard of review of a postconviction petition). Reiners, contrary to Taylor’s assertion, does not announce a new rule or alter the Batson analysis from our decision on direct appeal in Taylor’s case. See Reiners, 664 N.W.2d at 826.


source: Caselaw Access Project

author: MINGE, Judge.

license: Public Domain

text:
    ALLIANZ INSURANCE COMPANY, Appellant, v. PM SERVICES OF EDEN PRAIRIE, INC., a Minnesota corporation, d/b/a Facilitech and Welsh Companies, LLC, a Delaware corporation, Respondent.
    No. A04-898.
    Court of Appeals of Minnesota.
    Jan. 18, 2005.

      Michael D. O’Neill, O’Neill, Grills & O’Neill, P.L.L.P., St. Paul, MN; and Jeffrey R. Learned, (pro hac vice), Grotefeld & Denenberg, L.L.C., Bingham Falls, MI, for appellant.
    Louise A. Behrendt, John F. Angelí, Stich, Angelí, Kreidler & Dodge, P.A., Minneapolis, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; SCHUMACHER, Judge; and MINGE, Judge.
   OPINION

MINGE, Judge.

Appellant Allianz Insurance Company challenges summary judgment granted to respondent PM Services of Eden Prairie Inc., d/b/a Facilitech, arguing that the district court erred by applying the two-year limitation period of Minn.Stat. § 541.051 (2002) to its claims against respondent for damages caused by improper installation and repair of water-purification systems. Because the district court did not err by holding that installation and contemporaneous corrective work on the water-purification systems is an improvement to real property subject to the two-year statute of limitations for improvements to real estate, we affirm.

FACTS

In 2000, Buffets, Inc. (Buffets) hired respondent. to install E colab water-purification systems to filter city water for soft drink and ice machines on each of the four floors of its corporate headquarters. Respondent began installing the water-purification systems on October 6, 2000. As part of the installation, respondent mounted the filter units in the kitchenette areas and plumbed the filters into the main water system through a series of plastic PVC “tee” fittings.

Within a week, the modified plumbing for the purification system on the first floor developed a pinhole leak, Buffets notified respondent of the problem, and on or about October 12, 2000, respondent returned and replaced the plastic “tee” fitting with a metal fitting. Respondent billed Buffets for installation and contemporaneous follow-up work on the purification systems at an hourly rate and submitted a billing invoice, which lists the dates of service for all the work occurring between October 6 and October 12, 2000. The invoice also states that respondent “[ijnstalled water filters on four[] floors for the pop and ice machines,” then “[r]e-paired a pinhole leak on the filter PVC ‘T’ ” by “replacing] and re-assembl[ing] the fitting as needed,” and finally “Verified operations.” Verifying operations generally involves turning the water back on, checking all the systems for leaks, and ensuring that the systems are working properly.

On October 15, 2000, the water-purification systems broke and caused considerable water damage to Buffets’ building. A report prepared by appellant’s expert on December 28, 2000, stated that the first, second, and third floor water-purification systems developed leaks due to over-tightening of the fittings during installation. The report went on to state that the PVC fittings on the second and third floor were broken and that part of the first-floor fitting was also damaged. Destructive testing of the fittings was conducted in November 2002, and the testing revealed that the PVC “tee” fittings in the basement, second, and third floors were cracked. In opposing respondent’s motion for summary judgment, the same expert submitted an affidavit in which he stated that the proximate cause of the water damage resulted from respondent’s negligent repair of the filtration system on or about October 12 and not the original installation.

Appellant insured Buffets for the damage resulting from October 15, 2000, leaks, covered Buffets’ claims, and based on its subrogation rights filed a complaint on August 18, 2003, alleging that the original installation of the water-purification systems and the repair of the systems was negligent and resulted in the loss. The district court granted summary judgment in favor of respondent. The court concluded that the installation of the water-purification system was an improvement to real property and as such the claims were barred under the two-year statute of limitations of Minn.Stat. § 541.051 (2002). The district court also concluded that to the extent appellant’s claims arose from the corrective work, it was part of the installation, and therefore barred by Minn. Stat. § 541.051. Finally, the district court concluded that appellant’s expert’s affidavit was insufficient to create a genuine issue of material fact and all of appellant’s claims were barred by section 541.051 as a matter of law.

ISSUES

1. Is the installation of water-purification systems an improvement to'real property subject to the two-year statute of limitations contained in Minn.Stat. § 541.051 (2002)?

2. Did the district court err in concluding that respondent’s follow-up work on or about October 12, 2000, was part of the installation and therefore covered by Minn. Stat. § 541.051?

3. Did the district court err by granting summary judgment after concluding that there were no genuine issues of material fact?

ANALYSIS

The district court should grant summary judgment when there is no genuine issue of material fact and either party is entitled to a judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). On appeal from summary judgment, a reviewing court asks (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The evidence is viewed in a light most favorable to the party against whom judgment was granted. Fabio, 504 N.W.2d at 761. Even though an appellate court may disagree with the district court’s analysis of some issues, summary judgment will be affirmed if it can be sustained on any grounds. Myers v. Price, 463 N.W.2d 773, 775 (Minn.App.1990), review denied (Minn. Feb. 4, 1991). The construction and applicability of a statute of limitation is a question of law that is reviewed de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998).

I.

We first address appellant’s argument that the district court erred in holding that the water-purification systems were an improvement to real property, and therefore the claims are barred under Minn.Stat. § 541.051, subd. 1(a) (2002). The statute limiting claims on improvements to real property provides in relevant part:

Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property ... arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of the injury, shall be brought ... more than two years after discovery of the injury ... nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.

Minn.Stat. § 541.051, subd. 1(a).

The Minnesota Supreme Court defines an improvement to real property as “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.” Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 451 (Minn.1988) (quoting Pac. Indem. Co. v. Thompsom-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn.1977) for the definition of improvement to real property). We use a common sense approach when determining whether something is an improvement to real property for purposes of the statute of limitations. Williams v. Tweed, 520 N.W.2d 515, 518 (Minn.App.1994), review denied (Minn. Oct. 27, 1994). While statutes that limit damages based on improvements to real property are construed strictly, nonetheless, courts give effect to the plain meaning of the statute’s words without resort to technical legal constructions of its terms. Kline v. Doughboy Recreational Mfg. Co., 495 N.W.2d 435, 439 (Minn.App.1993).

Although there is no Minnesota caselaw that directly addresses the issue of whether a water-purification system constitutes an improvement to real property, several court decisions deal with various types of improvements. See, e.g., Red Wing Motel Investors v. Red Wing Fire Dep’t, 552 N.W.2d 295, 297 (Minn.App.1996) (treating a sprinkler system for fire protection purposes as an “improvement” to real property), review denied (Minn. Oct. 29, 1996); Kline, 495 N.W.2d at 438 (holding an above-ground swimming pool is an “improvement” to real property); Patton v. Yarrington, 472 N.W.2d 157, 159-60 (Minn.App.1991) (a smoke detector is an “improvement” to real property), review denied (Minn. Aug. 29, 1991); Frederickson v. Alton M. Johnson Co., 402 N.W.2d 794, 796-97 (Minn.1987) (electrical switchboards are an “improvement”); Bulau v. Hector Plumbing & Heating Co., 402 N.W.2d 528, 529-30 (Minn.1987) (treating fireplace as an “improvement”); Citizens Sec. Mut. Ins. Co. v. Gen. Elec. Corp., 394 N.W.2d 167, 170 (Minn.App.1986) (stating light fixtures constituted an improvement), review denied (Minn. Nov. 26, 1986); Henry v. Raynor Mfg. Co., 753 F.Supp. 278, 282 (D.Minn.1990) (a garage door opener is an improvement to real property).

Appellant claims the installation of water-purification systems on each floor was not an improvement to real property because the purification systems do not fit within the definition of an improvement to real property. Specifically, appellant argues that the purification systems are removable and do not enhance the building’s capital value.

To be sure, compared to total building cost and even the total plumbing system, the water-purification systems are minor. However, the water-purification systems were plumbed into and thus were integrated into the building’s water system and made the building more useful because the water was purified. Even though the water-purification systems could be removed, they were attached to the building and there is no indication that Buffets planned to remove the systems. Water-purification systems are at least as much a permanent improvement as an above ground-swimming pool or a smoke detector. See Patton, 472 N.W.2d at 159-60; Kline, 495 N.W.2d at 438. Appellant cites Massie v. City of Duluth for support, but Massie is distinguishable because the court based its determination that the public waterslide was not an improvement on the fact the city removed it every winter for storage. 425 N.W.2d 858, 861 (Minn. App.1988), review denied (Minn. Sept. 16, 1988). There is no showing that the purification systems are designed or intended to be regularly removed or that their owners in fact do remove them.

Appellant also argues that the water-purification systems did not enhance the capital value of the building. Minnesota courts do not apply the definition of improvement rigidly but rather evaluate the issue based on common sense. Sartori, 432 N.W.2d. at 451. Similarly, enhancement of capital value is not necessarily required to make the shorter limitation period applicable, and this court has found that a swimming pool and conveyor system in a manufacturing plant were improvements to real property even though they did not increase the capital values of the buildings. See Kline, 495 N.W.2d at 439; Thorp v. Price Bros. Co., 441 N.W.2d 817, 819-20 (Minn.App.1989), review denied (Minn. Aug. 15, 1989). The water-purification systems improved the quality of the drinking water, which made the building-more useful.

Appellant argues that Brandt v. Hallwood Mgmt. Co., 560 N.W.2d 396 (Minn.App.1997), review denied (Minn. June 11, 1997), is controlling in this case. Brandt is distinguishable. In Brandt, a carpenter was injured when he came into contact with an energized electric wire that was left over from demolition work. Id. at 398. The holding in Brandt focused on the applicability of Minn.Stat. § 541.051 (1996) to demolition work, not improvements. Id. at 399^400. We conclude that the installation of the water-purification systems is an improvement to real property and subject to the two-year statute of limitations set out in Minn.Stat. § 541.051.

II.

Next appellant argues that respondent’s replacement of the PVC fitting on the first-floor system and inspection of the other purification systems on or about October 12, 2000, constituted a repair and is therefore not subject to the two-year statute of limitations. No caselaw directly addresses the question of whether a correction made within a few days of faulty installation is covered by the two-year statute of limitations, but several cases have addressed the distinction between an improvement and repair. See Hartford Fire Ins. Co. v. Westinghouse Elec. Corp., 450 N.W.2d 183, 186-87 (Minn.App.1990), review denied (Minn. Mar. 22, 1990); Horvath v. Liquid Controls Corp., 455 N.W.2d 60, 63 (Minn.App.1990), review denied (Minn. July 13,1990).

In Hartford, the respondent designed and built a generator for a power plant. 450 N.W.2d at 185. Fifteen years later the generator’s fan malfunctioned, and the respondent performed an inspection, did some repairs, and recommended replacing the rubber seal in the fan. Id. The power plant followed the recommendations and was supplied a defective seal, which ruptured and damaged the generator. Id. Three and one-half years later the power plant’s insurer filed an action against numerous parties, including the rubber manufacturer and the designer.. Id. This court held that replacement of the seal constituted an ordinary repair because it merely restored the value of the generator but did not increase its value. Id. at 186.

Several months later, this court in Horvath concluded that a contemporaneous change in a valve was not a repair and was included under the definition and umbrella of “improvement to real property” for the purpose of the ten-year statute of repose under Minn.Stat. § 541.051, subd. 1(a) (2002). 455 N.W.2d at 63. In Horvath, a supervisor at respondent’s facility died after anhydrous ammonia fumes released from respondent’s “nurse tank” overcame him. Id. at 62. Soon after the construction of the facility was completed, a change was made to the tank’s excess flow valve after it was discovered that the valve was too sensitive for certain purposes. Id. at 63. The court reasoned that because the change had been made soon after the initial completion of the facility, the change was more properly characterized as a design change rather than a repair. Id. The Horvath court did not explain what it meant by a design change and how close in proximity to the original construction the change must be before that change is characterized as contemporaneous and part of the installation.

The law and facts suggest that the rule in Horvath is the more appropriate rule in this case. Here, like in Horvath, respondent made a change to the first-floor water-purification system almost immediately after installation because the installation resulted in a pinhole leak. Respondent did not replace the PVC fitting with an identical plastic fitting but installed a metal fitting in its place- and inspected the other systems for leaks. Also like in Horvath, the water-purification system was not working as intended because a leak developed immediately as opposed to requiring ordinary repairs over time. Appellant argues that the close proximity of respondent’s repair is irrelevant, but we disagree. Unlike in Hartford, in which fifteen years elapsed between the installation of the generator and the repair, here respondent returned within a few days to correct the installation, and within three days of that visit, all four water-purification systems leaked and caused damage. Respondent’s contemporaneous adjustments to the initial installation are not ordinary repairs, but rather are best classified as part of the installation and therefore a claim must be sought within two years of discovery of the damage. We are not expanding the scope of a short statute of limitations, in which all repairs are bundled with the original installation, but merely holding that here, where respondent made contemporaneous adjustments within days of the installation, the adjustments were part of the installation and appellant’s damages resulting from both the installation and adjustments fall under the same two-year statute of limitations. To hold otherwise would create an anomaly in the statute of limitations. We do not believe the legislature intended that a specific, shorter two-year limitation for claims on the basic improvement project should be expanded to a six-year period just because a contemporaneous correction is made on the base project. The tail should not wag the dog.

Because respondent’s actions on or about October 12 were contemporaneous with the installation of the water-purification systems, we conclude they fall within the definition of improvement and appellant’s claims are time barred under Minn. Stat. § 541.051.

III.

Appellant argues that its expert’s affidavit, along with the billing invoice, create a genuine issue of fact as to whether respondent’s actions on or about October 12, 2002, were a proximate cause of the water damage. The function of the district court on a motion for summary judgment is to determine whether any genuine issues of material fact exist, rather than weighing the evidence and deciding issues of fact. DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn.1997). No genuine issue of material fact exists “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the nonmoving partyf.]” Id. at 69 (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). Although proximate cause generally is a question of fact for the jury, “where reasonable minds can arrive at only one conclusion,” proximate cause becomes a question of law and may be disposed of by summary judgment. Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn. 1995).

Appellant is correct that there is an issue of fact over the extent to which respondent’s replacement of the first-floor valve on or about October 12 was a proximate cause of the water damage. The district court stated that it was undisputed that the replaced fitting on the first floor did not contribute to the extensive water damage. However, both parties agree that water leaked from the first-floor purification system. Because there is nothing in the record indicating how much damage resulted from the first-floor leak, it was improper to find that the first-floor water-purification system was not a proximate cause of the damage. But these facts are not material because we find as a matter of law that respondent’s actions on or about October 12 were contemporaneous with the installation of the water-purification systems and subject to the two-year statute of limitations.

Also appellant contends that the district court improperly gave greater weight to the first report of its expert and dismissed his later affidavit. Appellant’s expert initially prepared a report, in which he stated that the water-purification systems broke due to improper installation, and later stated in an affidavit opposing respondent’s motion for summary judgment that respondent’s actions on or about October 12 were the proximate cause of the water damage. The district court noted that the affidavit did not include a discussion of how the repair was negligent, what was involved in the repair or whether or not the expert still believed his earlier conclusions. This affidavit contradicted his earlier report and failed to provide any plausible explanation for the incongruity. In any event, whether respondent’s follow-up work on or about October 12 was a proximate cause of the water damage is irrelevant. The work was part of the original installation and subject to the two-year statute of limitation. Therefore, the district court properly ruled that appellant’s expert’s affidavit did not create a genuine issue of material fact.

Appellant also points to respondent’s billing invoice, which described the work as two distinct services, the first involving the installation of the water-purification systems and the second involving the repair and verification of the other systems. Appellant also submitted depositions of respondent’s employees, in which the employees used the term “repair.” The specific semantics used by respondent’s employees or in the billing invoice to describe the work performed is not dispos-itive of the issue. Respondent’s actions were a continuation of the improvements to real property within the meaning of section 541.051 (2002); thus appellant failed to raise any genuine issues of material fact.

DECISION

The district court did not err by concluding that the installation of water-purification systems is an improvement to real property, contemporaneous adjustments made to the systems were part of the installation, and any resulting damage was time-barred. The district court did not err by concluding that appellant failed to raise any genuine issues of material fact.

Affirmed.

      . We note that contemporaneously with our decision this court is releasing an opinion holding that a replacement of a roof covering is an improvement to real property subject to the two-year statute of limitations contained in Minn.Stat. § 541.051 (2002). See Merritt v. Mendel, 690 N.W.2d 570 (Minn.App. Jan. 18, 2005).


author: GORDON W. SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Kofi YEBOAH, Appellant.
    No. A04-1031.
    Court of Appeals of Minnesota.
    Jan. 25, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuehar, Hennepin County Attorney, Linda K. Jenny, Assistant Hennepin County Attorney, Minneapolis, MN, for respondent.
    Larry E. Reed, Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge; RANDALL, Judge; and HALBROOKS, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

On appeal from a declaration of a mistrial and a motion for retrial, appellant argues that (1) retrial is barred by the double-jeopardy clauses of the United States and Minnesota constitutions because the mistrial was declared over the defendant’s objection; (2) no manifest necessity existed for the declaration of the mistrial; and (3) the district court erred when it sent the incomplete jury in to determine whether or not they could reach a verdict. We affirm.

FACTS

After considering various problems with the jury in appellant Kofi Yeboah’s criminal trial, the district court granted the prosecutor’s motion for a mistrial. Yeboah challenges that decision, contending that the court abused its discretion because there was no manifest necessity for a mistrial and that the principle of double jeopardy bars a retrial.

Yeboah’s trial on charges of criminal sexual conduct and kidnapping lasted six days. The jury began deliberating in the afternoon on March 30, 2004, and continued into that evening. It deliberated the entire next day, and at 9:45 p.m., the court, with the consent of Yeboah, his attorney, and the prosecutor, excused one juror from further service so that she could go on a scheduled vacation, which she disclosed during voir dire.

The remaining 11 jurors reported the next morning to resume their deliberations. Before they began, one juror became ill. The court determined that she was “incapacitated,” sent her home, and contacted counsel to determine how best to proceed.

With Yeboah and both attorneys present, the court explained why it sent the ill juror home and stated that it had received notes from two other jurors regarding schedule problems. The first merely asked to be allowed to make a telephone call to cancel a haircut appointment. The other was concerned about dealing with a job interview scheduled for the next day. The court also mentioned that a third juror “in voir dire indicated that she is leaving for vacation tomorrow.”

The court then had the remaining ten jurors brought back to the courtroom and told them that they were being excused for the day but that they should return the next day. The court told the juror who was scheduled to leave for a vacation the next day that it would authorize payment for a replacement airplane ticket. The juror then explained that she had purchased a vacation package that included travel with her 18-year-old daughter and that the total price was $3,400. She stated that they were scheduled to leave at 7:00 the next morning.

Another juror volunteered that the jurors were “very strong on both sides” and disclosed that “we haven’t made much progress.” This information prompted the court to instruct the remaining ten jurors to return to the jury room, where the foreperson was to poll the jurors and report “only whether the majority of the people feel they can reach a verdict or they can’t reach a verdict.” After the jurors left the courtroom, defense counsel stated that any polling would be invalid because one juror was missing.

When the jurors returned to the courtroom, the foreperson reported that “we won’t be able to reach a unanimous decision.” The court inquired whether the presence of the ill juror might alter that conclusion and the foreperson replied, “No.”

The prosecutor then moved for a mistrial. Defense counsel opposed the motion, arguing that the jury had not deliberated for very long and that the jury poll was invalid without the ill juror. The prosecutor cited the vacation of one juror scheduled for the next day, reminded the court that yet another juror had previously disclosed an impending vacation, and said she would not agree to a jury of fewer than ten members.

The court pointed out that it and counsel had told the prospective jurors during voir dire on March 15 that the trial would take five days and that it was now April 1. The court recalled that “we did have notice from several jurors that they had to leave on vacation.” The court then announced that it would have to grant the motion for a mistrial.

When defense counsel responded that he and the prosecutor had agreed to accept a jury of ten members, the prosecutor stated that she would not agree to a jury of only ten jurors.

Noting its concern about the “cumulative effect” of various jurors’ schedule problems, the apparent deadlock, and the prosecutor’s refusal to agree to a jury of ten people, the court declared a mistrial and discharged the jury. When the state later moved for a retrial, Yeboah opposed the motion on the ground that the principle of double jeopardy barred a retrial. The court granted the state’s motion, and Yeboah appealed.

ISSUE

In appellant’s criminal trial, jurors deliberated for 1 ½ days. The court excused one juror to go on a scheduled vacation. Another juror became ill, and the court suspended deliberations for a day. The suspension threatened to interfere with other jurors’ vacation commitments. The remaining jurors appeared to be deadlocked. The attorneys disagreed as to the minimum number of jurors allowable to continue with deliberations. Did the district court abuse its discretion in granting the state’s motion for a mistrial on the ground of manifest necessity?

ANALYSIS

Both the federal and Minnesota constitutions guarantee that a criminal defendant may not be tried more than once for the same crime. U.S. Const, amend. V (“No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb”); Minn. Const, art 1, § 7 (“No person shall be ... put twice in jeopardy of punishment for the same offense.”).

When a criminal trial is terminated over the defendant’s objection before a verdict is reached, the double-jeopardy clauses of the federal and state constitutions bar a retrial unless the previous trial was terminated for a manifest necessity. State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985).

Jeopardy attaches as soon as the jury is sworn. Id. Because Yeboah’s jury had not only been sworn but had actually deliberated for about a day and a half, jeopardy had attached, and Yeboah cannot be retried unless there was a manifest necessity for the mistrial.

We review a trial court’s declaration of a mistrial under an abuse-of-discretion standard. State v. Long, 562 N.W.2d 292, 296 (Minn.1997). The termination of a trial is discretionary 'with the court, but that discretion must be exercised with caution and only so as to serve the ends of public justice. State v. McDonald, 298 Minn. 449, 454, 215 N.W.2d 607, 610 (1974).

Reviewing courts give great deference to a trial court’s declaration of a mistrial when a jury is deadlocked. Arizona v. Washington, 434 U.S. 497, 510, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978). But because a mistrial inevitably affects a constitutionally protected interest, reviewing courts are obliged to satisfy for themselves that the trial court has exercised “sound discretion” in declaring, a mistrial. Id. at 515, 98 S.Ct. at 835.

Applying these legal principles here, the district court did not abuse its discretion in granting the state’s motion for a mistrial if there was a manifest necessity to terminate the trial. In such cases, a retrial is not barred. Conversely, if there was no manifest necessity for a mistrial, the double-jeopardy principles of the federal and Minnesota constitutions prohibit YeboaUs retrial on the charges at issue in his initial trial.

“Manifest” means evident, obvibus, clear, or plain. Webster’s New World' College Dictionary 874 (4th ed.2002). The term thus precludes any mere subjective or whimsical notion and, when applied here, requires instead that there have been an objective necessity, apparent not only to the district court but to any reviewing court as well.

A.mistrial is appropriate only if there is a high degree of necessity, but the necessity need not be absolute. Long, 562 N.W.2d at 296. Furthermore, the manifest-necessity standard is flexible and seeks to balance fairness to the defendant against governmental and public interests. Id. In assessing the likelihood of manifest necessity, the district court must consider less drastic alternatives in the light of the defendant’s constitutionally protected interest in being subjected to a single trial. Id. The prototypical example of manifest necessity is the deadlocked jury. State v. Soyke, 585 N.W.2d 418 (Minn.App.1998). A trial judge’s reasonable belief that the jury will be unable to reach a unanimous verdict is the classic reason for a mistrial. Washington, 434 U.S. at 509, 98 S.Ct. at 832.

The jury — -that unified, - deliberative body of neutral and fair-minded citizens— is a constitutionally guaranteed mainstay of American jurisprudence. U.S. Const amend VI (criminal); amend. VII (civil). When citizens are being examined for possible jury service, they are customarily told that they must set aside their usual personal and business concerns and their daily pursuits and must devote .their attention, focus, and energy solely to the trial for which they are chosen. On voir dire, lawyers typically ask prospective jurors whether they can give their undivided attention to the trial. Lawyers seek to uncover not only bias and prejudice but also the existence of. intractable distractions. If an otherwise fair and neutral juror is distracted by some extraneous concern, the integrity of the jury as a unified body focused solely on the trial is diminished.

A critical role of a trial judge is to ensure, insofar as possible, that, from the time the jurors swear or affirm they will satisfy the duties and honor the restrictions imposed on juries, until they return a verdict, they will function consistently as a fair, neutral, undistracted unit. The trial judge exercises a guardian role by instructing the jury, observing it throughout the trial, answering jurors’ questions, dismissing jurors who lapse in the performance of their duties, and ultimately, if manifestly necessary, terminating the trial before the jury reaches a verdict.

The district court in Yeboah’s trial faced what can fairly be characterized as a disintegrating jury. Not only was the actual number of jurors dwindling but also the extraneous concerns of some remaining jurors raised the genuine possibility of their significant distraction from the case at hand. One juror had been excused for a vacation. Another juror had a vacation scheduled to begin on the day the jury was to resume its deliberations. Still another juror had a vacation scheduled to begin if deliberations went beyond the, next day. It was not at all certain when the ill juror might return. There was a disagreement between counsel as to whether a ten-member jury was acceptable. The foreperson reported that at that point there was not a likelihood that the jury could reach a unanimous verdict.

Add to this litany of problems the predicament the court would be in if it did not excuse jurors with impending vacations, having already excused one juror for that very reason. It is difficult to imagine a more disgruntled and distracted juror than one who has had to forgo a planned vacation under these circumstances. And such an attitude surely does not inure to the benefit of a criminal defendant.

Yeboah argues that the jury had not deliberated long enough to justify a conclusion that the jurors were deadlocked. There is no standard as to how long a jury must deliberate before the court may determine a deadlock and declare a mistrial. This is entirely within the court’s discretion. State v. Kelley, 517 N.W.2d 905, 909 (Minn.1994).

But here, it was not only the possibility of deadlock that caused the court to grant a mistrial motion. The court considered that issue among the other problems with jurors’ schedules and the attorneys’ disagreement as to an acceptable number of jurors before granting the motion. As the court explained, it was the cumulative effect of the manifested jury problems that persuaded the court of the necessity for a mistrial.

Yeboah also contends that the court did not properly consider lesser alternatives before granting a mistrial. The court did consider ways to accommodate juror schedule problems, but none was likely to reasonably ensure the preservation of the integrity of the jury unit. Postponing deliberations would merely bring the proceedings closer to further vacation problems. As we have noted, refusing to excuse jurors who had vacation commitments would create the risk that those jurors would not devote the undistracted attention and time necessary to render a fair verdict. Reducing jury size, although hypothetically possible no matter what the number, ceased to be an option when the prosecutor refused to agree to fewer than ten jurors. See Minn. R.Crim. P. 26.01, subd. 1(4) (at any time before the verdict, the parties may stipulate to a lesser number of jurors than that provided by law).

Furthermore, even if the parties reached a stipulation as to a lesser number of jurors, the court’s approval was still required, and the court never approved fewer than 11 jurors. See id.

During jury deliberations, serious problems arose that threatened to impair the integrity of the jury. No available solution would have protected or ensured that integrity. It was necessary for the court to declare a mistrial, and, in doing so, the court did not abuse its discretion.

Yeboah’s final contention is that the court improperly required the polling of the jury in the absence of the ill juror. Even if the court erred in ordering the polling of the jury, we need not consider this issue as it would not alter our holding that there was a manifest necessity for a mistrial.

DECISION

Because of unsolvable problems with jurors’ schedules, the apparent deadlock of the jury, and the disagreement of counsel as to the minimum number of jurors who might continue deliberations, the district court did not abuse its discretion in declaring a mistrial on grounds of manifest necessity and denying Yeboah’s motion to prohibit a retrial.

Affirmed.


author: PER CURIAM.

text:
    2004 ND 209
    STATE of North Dakota, Plaintiff and Appellee v. Lori WHITETAIL, Defendant and Appellant.
    No. 20040187.
    Supreme Court of North Dakota.
    Nov. 19, 2004.
    Tyrone J. Turner, Assistant State’s Attorney, Bismarck, ND for plaintiff and ap-pellee.
    Kent M. Morrow, Bismarck, ND for defendant and appellant.
   PER CURIAM.

[¶ 1] Lori Whitetail appealed from a jury conviction for delivery of alcoholic beverages to persons under 21, a class A misdemeanor. Whitetail claims the State failed to introduce sufficient evidence to warrant the jury finding her guilty beyond a reasonable doubt. Whitetail states there was no evidence demonstrating she knowingly delivered alcohol to a minor, and she argues the minors involved in the incident “snuck” the alcohol from her home. After reviewing the entire record and looking to the evidence most favorable to the jury’s verdict and the reasonable inferences therefrom, we conclude the State introduced substantial evidence to warrant a conviction. We affirm Whitetail’s conviction under N.D.RApp.P. 35.1(a)(3).

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


text:
    2004 ND 219
    Richard A. ENGWICHT III, Plaintiff and Appellant v. Alan J. LAKO dba Lako Drilling, Defendant and Appellee.
    No. 20040079.
    Supreme Court of North Dakota.
    Nov. 26, 2004.
    Jay A. Schmitz, Jamestown, ND, for plaintiff and appellant.
    Monte L. Rogneby (argued) and Chris-tel M. Bender (on brief), Vogel Law Firm, Bismarck, ND, for defendant and appellee.
   PER CURIAM.

[¶ 1] Richard Engwicht appealed from a judgment in which the district court judge, sitting as the trier of fact, interpreted an oral contract for well-drilling services in favor of Alan Lako. Engwicht maintains the district court erred in its interpretation of the parties’ oral contract and believes the district court’s findings of fact are clearly erroneous. Engwicht argues the parties contracted for a tangible product, a completed artesian well, rather than simply contracting for drilling services. Engwicht points to the parties’ mutual testimony and conduct in performing their obligations to support his contention. After reviewing the entire record, we conclude the district court’s findings of fact are not clearly erroneous and we affirm the judgment under N.D.R.App.P. 35.1(a)(2).

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

[¶ 3] The Honorable DONALD L. JORGENSEN, D.J., sitting in place of KAPSNER, J., disqualified.


text:
    2004 ND 222
    STATE of North Dakota, Plaintiff and Appellee v. Jimmie Lee BATES, Defendant and Appellant.
    No. 20040095.
    Supreme Court of North Dakota.
    Dec. 14, 2004.
    Birch P. Burdick, State’s Attorney, Courthouse, Fargo, N.D., for plaintiff and appellee; submitted on brief.
    Steven D. Mottinger, Fargo, N.D., for defendant and appellant; submitted on brief.
   PER CURIAM.

[¶ 1] Jimmie Bates appeals from a judgment of conviction entered upon a jury verdict finding him guilty of gross sexual imposition. Bates argues there was insufficient evidence to convict him of the crime. Concluding there was sufficient evidence to uphold the guilty verdict, we summarily affirm the conviction under N.D.RApp.P. 35.1(a)(3).

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


text:
    2004 ND 221
    STATE of North Dakota, Plaintiff and Appellee v. Ronald R. ERNST, Defendant and Appellant.
    No. 20040117.
    Supreme Court of North Dakota.
    Dec. 14, 2004.
    Ronald R. Ernst, pro se, Bismarck, N.D., defendant and appellant.
    Trent W. Mahler, Assistant State’s Attorney, Fargo, N.D., for plaintiff and ap-pellee.
   PER CURIAM.

[¶ 1] Ronald Ernst appeals from a district court order, dated April 19, 2004, denying his motion to withdraw his guilty plea on October 28, 2002, to burglary, stalking, two counts of theft, disorderly conduct, criminal mischief, and indecent exposure. Ernst argues that he should have been allowed to withdraw his guilty plea because he was not informed orally by the court of any of the terms of his probation prior to pleading guilty or during sentencing. Ernst argues that because he was not orally informed of the conditions of his probation prior to pleading guilty, the court violated his right to due process and subjected him to double jeopardy. Ernst further argues his Constitutional rights were violated because he is subject to different probation conditions than others convicted of similar crimes, his right of association is restricted, and he is subject to an illegal search and seizure. “When a court has accepted a plea and imposed a sentence, the defendant cannot withdraw the plea unless withdrawal is necessary to correct a ‘manifest injustice.’ ” Froistad v. State, 2002 ND 52, ¶ 9, 641 N.W.2d 86; and see also N.D.R.Crim.P. 32(d). We affirm the district court’s order denying Ernst’s motion to withdraw his guilty plea under N.D.R.App.P. 35.1(a)(4). Finally, Ernst moved this Court to remove alleged untruthful statements from the State’s brief. We determine this motion to be without merit and deny it.

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


text:
    2004 ND 220
    CITY OF MANDAN, Plaintiff and Appellee v. Paul J. CORDOVA, Defendant and Appellant.
    No. 20040147.
    Supreme Court of North Dakota.
    Dec. 14, 2004.
    Kent M. Morrow (submitted on brief), Bismarck, N.D., for defendant and appellant.
    Michelle llene Hagel (submitted on brief), Assistant State’s Attorney, Mandan, N.D., for plaintiff and appellee.
   PER CURIAM.

[¶ 1] Paul J. Cordova appeals from a district court judgment, dated June 9, 2004, affirming a prior municipal court judgment, dated March 17, 2004, finding him guilty of indecent conduct. Cordova argues the district court committed reversible error both when it determined the Mandan Community Center is a public place and when it determined the area where he was witnessed nude is not a changing room or similar facility designated for his sex. We conclude the judgment is supported by substantial evidence. We summarily affirm under N.D.R.App.P. 35.1(a)(3).

[¶ 2] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SAND-STROM, CAROL RONNING KAPSNER, JJ., concur.


author: NEUMANN, Justice.

text:
    2005 ND 17
    Janet Pauline CHRISTOFFERSEN, Plaintiff and Appellee v. Zane Louis GIESE, Defendant and Appellant.
    No. 20040143.
    Supreme Court of North Dakota.
    Jan. 19, 2005.
    Donavin L. Grenz (argued), Linton, N.D., for defendant and appellant.

      Janet Holter Zander, Zander Law Office, P.C., Williston, N.D., for plaintiff and appellee; submitted on brief.
   NEUMANN, Justice.

[¶ 1] Zane Louis Giese appeals from the trial court’s amended judgment compelling him to pay $526 per month in child support. We reverse and remand for further proceedings consistent with this opinion.

I

[¶ 2] In 1995, Zane Louis Giese and Janet Pauline Christoffersen were married in Montana. During their marriage, two children were born. The marriage ended in divorce by default judgment on February 26, 2002. Under a Montana court judgment, Christoffersen was awarded primary physical custody, and Giese was ordered to pay $679 per month in child support. Christoffersen and the children subsequently moved to North Dakota. Giese worked for Contact Centers Unlimited (CCU) from November 2001 until September 2002 when he voluntarily quit and started a computer services company. Since that time, Giese has not maintained his previous level of earnings. In January 2003, the Montana support order was registered in Emmons County District Court, North Dakota, under N.D.C.C. § 14-12.2-39.

[¶3] In February 2003, Giese moved for a modification of the Montana court order. A hearing was held to determine Giese’s child support obligation, among other issues. Both Giese and Christoffer-sen offered calculations of his income. The trial court entered a judgment ordering Giese to pay $526 per month in child support, finding Giese had voluntarily quit his employment at CCU, and imputing income under N.D. Admin. Code § 75-02-04.1-07(9). Giese appealed.

II

[¶ 4] On appeal, Giese argues the support award should be reduced because the trial court failed to comply with the child support guidelines. Christoffersen argues the trial court correctly applied the guidelines because Giese failed to present credible evidence of his earnings, and because Christoffersen provided the only credible calculation for determining his child support obligation.

[¶ 5] We have clearly 'outlined our standard of review for child support determinations.

Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review. A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obli-gor’s child support obligation. As a matter of law, the trial court must clearly set forth how it arrived at the amount of income and level of support. The trial court’s findings of fact in making its child support determination are overturned on appeal only if they are clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made.

Minar v. Minar, 2001 ND 74, ¶ 10, 625 N.W.2d 518 (citations omitted).

[¶ 6] The trial court determined Giese voluntarily quit his employment at CCU in September 2002, which resulted in a reduction in income. When income is imputed after an obligor voluntarily changes employment resulting in a reduction of income, N.D. Admin. Code § 75-02-04.1-07(9) describes the formula for calculating imputed income:

[Mjonthly gross income equal to one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed....

“In effect, under this provision child support will be calculated based upon the average of the obligor’s twelve highest consecutive monthly earnings beginning three years prior to initiation of the current proceedings.” Logan v. Bush, 2000 ND 203, ¶ 19, 621 N.W.2d 314.

[¶ 7] The trial court found Giese’s earnings in 2002 equaled $22,869.34 from wages earned at CCU. Because Giese voluntarily left his employment at CCU in September 2002, the trial court found that had Giese continued to work for CCU the entire 2002 tax year, his earnings would have totaled $30,492.00 ([$22,869.34/9] x 12). The trial court imputed income based on $30,492.00, the hypothetical approximation of what Giese would have earned had he remained at CCU the entire year.

[¶ 8] We have previously noted that a trial court cannot calculate income in this manner. “Section 75-02-04.1-07(9) clearly requires the court to calculate imputed income based upon an obligor’s actual income in a prior twelve-month period. The court cannot pick the highest nine months and extrapolate that to a twelve-month figure.” Logan, 2000 ND 203, ¶ 21, 621 N.W.2d 314. The trial court failed to comply with the child • support guidelines and erred in imputing the $30,492.00 in income based on the hypothetical approximation.

[¶ 9] On February 26, 2003, Giese moved to amend the judgment determining his child support obligation. Section 75-02-04.1-07(9) requires that income be imputed based on Giese’s highest actual earnings in a consecutive twelve-month period, beginning on or after February 26, 2000, for which reliable evidence was provided. The trial court found Giese’s earnings information for 2003 “was both incomplete and unsubstantiated.” Giese provided the trial court with a copy of his 2001 tax return without attaching the corresponding W-2 forms. The 2001 tax return includes $4,621 in wages. Because Giese did not provide his W-2 forms, the trial court was unable to determine what amount he earned at CCU during the months of November and December. Giese’s highest actual earnings in a consecutive twelve-month period would presumably include the months of November and December 2001, when he was employed at CCU.

[¶ 10] On remand, if Giese fails to supply the trial court with adequate information to calculate his income, the amount of child support determined by the Montana court will remain unchanged. Giese moved the trial court for amendment of his child support. A movant for amendment of a child support order has the burden of proving the existing amount is not in conformity with the amount required by the guidelines. Helbling v. Helbing, 541 N.W.2d 443, 446 (N.D.1995). The trial court found Giese’s income was incomplete and unsubstantiated. Failure to supply adequate evidence of income can result in denial of the motion. See Henry v. Henry, 2000 ND 10, ¶ 7, 604 N.W.2d 234. If the trial court determines Giese has failed to supply adequate evidence, his motion should be denied and the original determination will remain unchanged. Giese cannot move to amend child support and benefit from his failure to supply adequate financial information. See Anderson v. Anderson, 504 N.W.2d 569, 571 (N.D. 1993) (stating “[w]e will not permit a party to take advantage of his duplicity at the trial court level to urge error on appeal”).

Ill

[¶ 11] We reverse the trial court’s amended judgment and remand for a child support determination under N.D. Admin. Code § 75-02-04.1-07(9) based on Giese’s actual highest income in a twelve-month consecutive period. If Giese fails to supply the trial court with adequate income information, his motion should be denied and the Montana court judgment for child support in the amount of $679 will remain unchanged.

[¶ 12] GERALD W. VANDE WALLE, C. J;, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ„ concur.


author: MARING, Justice.

text:
    2005 ND 24
    CITY OF GRAND FORKS, Plaintiff and Appellee v. Candace Rae SCIALDONE, Defendant and Appellant.
    No. 20040119.
    Supreme Court of North Dakota.
    Jan. 19, 2005.

      Kristen Sue Pettit, Assistant City Prosecutor, Grand Forks, N.D., for plaintiff and appellee.
    Alexander F. Reichert (argued), and Kelly M. Armstrong (on brief), Reichert Law Office, Grand Forks, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Candace Scialdone appealed a criminal judgment entered upon a jury verdict finding her guilty of actual physical control of a motor vehicle while under the influence of intoxicating liquor or with an alcohol concentration of at least ten one-hundredths of one percent by weight. We affirm.

I

[¶ 2] After her arrest for being in actual physical control of a vehicle, Scialdone consented to an Intoxilyzer test. Scial-done requested any material and information subject to disclosure under N.D.R.Crim.P. T6. On March 23, 2004, before jury selection that day, the City of Grand Forks (“City”) provided Scialdone’s attorney with copies of Intoxilyzer records it intended to introduce at trial the next day. At trial, Scialdone’s attorney objected to introduction of the Intoxilyzer test results on the ground that the “list of certified testing devices is going to show the 'machine that was used in this case was actually certified ... in Bismarck. Not in Grand Forks,” and “[t]he intoxilyzer training manual says any time the intoxilyzer is moved it has to be recalibrated by a field inspector.” The court overruled the objection.

[¶ 3] At trial, Officer Dvorak testified that, according to Exhibit 4, a list of approved chemical testing devices, the machine used in this case was “tested in Bismarck” and the exhibit did not indicate “that machine was recertified by a field inspector after it was moved from Bismarck to Grand Forks.” During a recess, the City had faxed from the State Toxicologist’s Office several pages of documents, including an exhibit showing the -Intoxilyzer machine used in the case had been installed and checked by a field inspector in Grand Forks after it had been moved from Bismarck to Grand Forks. The court overruled Scialdone’s objections to the exhibit or to testimony by a field inspector, Officer Nelson, who testified she had checked the machine after it had been moved from Bismarck to Grand Forks.

[¶ 4] The jury returned a verdict finding Scialdone guilty, and a criminal judgment was entered. Scialdone appealed, raising the following issues:

I. The Intoxilyzer test results should have been excluded from evidence because the foundational requirements showing that the test was administered in accordance with the approved method were not met.
II. Foundational documentation faxed to the prosecutor during trial and surprise witness testimony cannot be admitted into evidence because it is a violation of N.D.R.Crim.P. 16 and Scialdone did not have adequate time to prepare for that evidence or for a cross-examination of the witness.
III. The City violated N.D.R.Crim.P. 16 by not providing documentation pursuant to Scialdone’s reasonable discovery request until the day before trial.

II

[¶ 5] Scialdone asserts that the evidence initially presented by the City “indicated that this machine was last calibrated in Bismarck” and “[t]he evidence presented by the City through exhibits and the testimony of Officer Dvorak did not support the assertion that the approved method for conducting the breath test had been followed.” Scialdone contends the Intoxi-lyzer test results should have been excluded because the City did not meet the foundational requirements necessary to show the test was administered in accordance with the approved method. For that assertion, Scialdone relies on two sentences contained on page 56 of a 244-page student manual:

Checks on the calibration must be completed each time the Intoxilyzer 5000 is moved. This is done even when the Intoxilyzer 5000 is moved within an office.

Office of Attorney General, Chemical Test Training School for Intoxilyzer 5000 Student Manual 56 (Fall 2003 and Spring 2004 Training Sessions).

[¶ 6] Under N.D.C.C. § 39-20-07(5), the results of a chemical analysis must be received in evidence if the sample was properly obtained, the test was fairly administered, and “the test is shown to have been performed according to methods and with devices approved by the state toxicologist.” “ ‘The purpose of section 39-20-07 is to ease the requirements for the admissibility of chemical test results while ensuring that the test upon which the results are based is fairly administered.’ ” Lee v. North Dakota Dep’t of Transp., 2004 ND 7, ¶ 10, 673 N.W.2d 245 (quoting Ringsaker v. Director, N.D. Dep’t of Transp., 1999 ND 127, ¶ 7, 596 N.W.2d 328). “Whether an Intoxilyzer test has been properly administered can be determined by proving that the method approved by the State Toxicologist has been scrupulously followed.” Johnson v. North Dakota Dep’t of Transp., 2004 ND 59, ¶ 12, 676 N.W.2d 807.

[¶ 7] The first sentence of a June 15, 2003, document entitled “APPROVED METHOD TO CONDUCT BREATH TESTS WITH THE INTOXILYZER 5000 KB-EP” in an exhibit at trial states: “The Approved Method to Conduct Breath Tests With the Intoxilyzer 5000 KB-EP constitutes following the procedure outlined in this document and the instructions displayed by the Intoxilyzer.” The last sentence of the document states: “When the test is conducted according to this method, it is considered as fairly administered and the result obtained is scientifically accepted as accurate.” Neither N.D.C.C. § 39-20-07(5) nor the approved method promulgated by the State Toxicologist mentions either the student manual or anything about completing checks on the calibration when an Intoxilyzer 5000 machine is moved. We conclúde that evidence of such checks is not a foundational requirement for showing an Intoxilyzer 5000 test was administered in accordance with the approved method for conducting the test or for admission of the test result into evidence. See also City of Bismarck v. Bosch, 2005 ND 12, f 11 (concluding analytical report and directive “that a standard solution may be used for up to 50 tests is not a part of the approved method” and proof of the number of tests is not a prerequisite to showing fair administration of the test or to admission of the test results); Kiecker v. North Dakota Dep’t of Transp., 2005 ND 23, ¶ 13 (holding recalibration of Intoxilyzer machines is not part of the method prescribed by the State Toxicologist and proof of recalibration is not a foundational requirement for admission of an Intoxilyzer test result into evidence).

Ill

[¶ 8] Upon written request, N.D.R.Crim.P. 16(a)(1)(C), (D) require the prosecuting attorney to disclose evidence within the possession, custody, or control of the prosecution “material to the preparation of the” defense or “intended for use by the prosecutor as evidence in chief at the trial.” Scialdone contends the faxed documents about checks performed on the machine used after it had been moved from Bismarck to Grand Forks should not have been admitted because it violated N.D.R.CrimP. 16 and she did not have time to prepare for that evidence or for cross-examination of the field inspector. While “Scialdone does not contend that the testimony of Officer Nelson was intentionally withheld” and recognized in her appellate brief that “[t]he City did not know until trial that Officer Nelson’s testimony was needed,” she asserts the faxed documents “were to be used to correct the City’s own foundational flaw and to rehabilitate the testimony of their impeached witness.” Scialdone argues “the City should have been aware of these foundational problems before trial. Therefore, any testimony they planned to offer regarding the calibration of the Intoxilyzer machine used on Scialdone should have been previously disclosed.”

[¶ 9] We have already concluded evidence the machine had been checked after being moved is not a foundational requirement for the admission into evidence of an Intoxilyzer 5000 test result. The challenged documents and testimony were offered as rebuttal evidence. “The Government is not obligated by Rule 16(a) to anticipate every possible defense.” United States v. Gleason, 616 F.2d 2, 25 (2nd Cir.1979). ' We have héld that, if a defendant rebuts the prosecution’s prima facie showing of fair administration of á blood-alcohol test for admission under N.D.C.C. § 39-20-07(5), “the prosecution may present testimony to show fair administration despite defendant’s rebuttal.” State.v. Erickson, 517 N.W.2d 646, 648^49 (N.D.1994). If Scialdone felt surprised, her remedy was to request a continuance. State v. Hirschkorn, 2002 ND 36, ¶ 9, 640 N.W.2d 439. “A judgment, will not ordinarily be reversed on appeal for surprise when no request is made for a continuance at the time and there is no showing of inability to meet the situation.” Id. Scial-done did not request a continuance and did not show at trial or on appeal an inability to meet the situation.

[¶ 10] Furthermore, Scialdone has not shown that N.D.R.Crim.P. 16 requires advance disclosure of rebuttal evidence. We note that federal courts construing F.R.Crim.P. 16 have held that the rule does not apply to rebuttal evidence. See United States v. Gonzalez-Rincon, 36 F.3d 859, 865 (9th Cir.1994) (impeaching evidence is not a relevant statement within the meaning .of F.R.Crim.P. 16); United States v. Delia, 944 F.2d 1010, 1017-18 (2nd Cir.1991) (F.R.Crim.P.16(a) does not cover rebuttal evidence).

[¶ 11] We conclude Scialdone has not shown that the trial court abused its discretion in allowing the faxed documents to be admitted into evidence or in allowing Officer Nelson, a field inspector, to testify that she had checked the machine after it was moved from Bismarck to Grand Forks.

IV

.[¶ 12] Scialdone contends “[t]he City violated N.D.R.Crim.P. 16 by not providing documentation pursuant to Scial-done’s reasonable discovery request until the day before trial.” Scialdone complains of two sets of documents, the first being foundational evidence for admissibility of the Intoxilyzer test results, and the second being documents faxed during a trial recess.

[¶ 13] If Scialdone was surprised by the foundational evidence provided to her before trial, her remedy was to move for a continuance. See Hirschkorn, 2002 ND 36, ¶ 9, 640 N.W.2d 439. Scialdone’s reliance on City of Grand Forks v. Ramstad, 2003 ND 41, 658 N.W.2d 731, is misplaced, as she, unlike the defendant in Ramstad, did not seek a continuance to examine documents provided on the day of jury selection the day before trial. We have already addressed the faxed documents and Officer Nelson’s testimony and found no abuse of discretion. Furthermore, Scialdone has not shown that she was prejudiced by the timing of the documents’ provision, and we conclude the trial court did not abuse its discretion in admitting the evidence. See Ramstad, at ¶¶ 25-27.

V

[¶ 14] The judgment is affirmed.

[¶ 15] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE Y. SANDSTROM, and CAROL RON-NING KAPSNER, JJ., concur.


author: SANDSTROM, Justice.

text:
    2005 ND 21
    STATE of North Dakota, Plaintiff and Appellee v. Jesse Lynn SMITH, Defendant and Appellant.
    Nos. 20040114, 20040115.
    Supreme Court of North Dakota.
    Jan. 19, 2005.
    Rehearing Denied Feb. 16, 2005.

      Kathleen K. Trosen, State’s Attorney, Fessenden, N.D., for plaintiff and appellee.
    Brian W. Nelson (on brief), Nelson, Blu-mer & Johnson, P.L.L.P., Fargo, N.D., and Thomas J. Glass (argued), Bismarck, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Jesse Smith appeals two judgments of conviction of unlawful possession of drug paraphernalia and possession of a controlled substance. Concluding Smith was unlawfully stopped, we reverse the judgments of conviction of unlawful possession of drug paraphernalia and possession of a controlled substance and remand for further proceedings.

I

[¶ 2] On May 25, 2002, at about 12:30 a.m., Fessenden Police Chief Allen Kluth was approached by two local citizens regarding a suspicious vehicle parked behind a bulk fuel truck in the Cenex lot. Chief Kluth testified the citizens told him a green station wagon left the Cenex lot quickly, spinning out on the gravel, as they approached the vehicle. They told Chief Kluth they followed the vehicle to obtain its license plate number, but they were unable to get the full number because the station wagon was traveling at a high rate of speed. Chief Kluth and Highway Patrolman Jody Skogen went to view the tire tracks at the Cenex station, which has been broken into several times in recent years. Chief Kluth then contacted a Harvey Police Officer, Marc Balfour, and told him to be on the lookout for a green station wagon traveling west on highway 52. Officer Balfour testified he spotted a green station wagon and radioed Chief Kluth to tell him he saw a vehicle that matched the description. Chief Kluth told him to stop the vehicle. Officer Balfour testified that he did not observe any traffic violations at the time he pulled the vehicle over.

[¶ 3] After he approached the vehicle, Officer Balfour saw an open case of beer in the back seat and detected a strong odor of alcohol coming from the vehicle. He then asked Smith to accompany him back to the police car. Officer Balfour told Smith of the suspicious activity in the Ce-nex parking lot, and Smith explained that he and his friend had to go to the bathroom but that the store was locked so they went outside near the bulk fuel truck. Officer Balfour testified that he then asked Smith for his consent to search the vehicle. Smith replied, ‘Yeah, go ahead.”

[¶ 4] When Patrolman Skogen arrived, Officer Balfour turned the investigation over to him and told him Smith had given him consent to search the vehicle. Officer Balfour then went back to Smith’s vehicle and asked the passenger, Travis Cunningham, to come back to his police car. He examined Cunningham’s driver’s license, which showed that he was only 20 years old. He then placed Cunningham in the back seat of the patrol car and began to search Smith’s vehicle. Officer Balfour testified that when he walked up to the vehicle, he noticed two spilled cans of beer on the passenger-side floor. He then found a backpack in the back seat of the car, and upon opening it, found eight rolled baggies of marijuana.

[¶ 5] The State charged Smith with four counts: possession of drug paraphernalia, Wells County case no. 02-K-087; possession of a controlled substance, Wells County case no. 02-K-088; possession of a controlled substance with intent to deliver, Wells County case no. 02-K-089; and delivery of alcoholic beverages to a person under twenty-one years of age, • Wells County case no. 02-K-090. On September 18, 2002, the district court consolidated all four counts. On October 10, 2002, Smith moved to suppress all items seized by law enforcement officers and all- of the statements he made during the arrest. Smith’s motion included only Wells County case number 02-K-089 in its motion heading. The district court held a hearing on February 5, 2003, on the motion to suppress and issued a memorandum and order denying the motion to suppress on October 30, 2003. The transcript of the February 5 hearing included all four Wells County case numbers, while the memorandum contained only the Wells County case number 02-K-089.

[¶ 6] A jury found Smith guilty of all charges on March 31, 2004, except for possession of a controlled substance with intent to deliver, Wells County case number 02-K-089.

[¶ 7] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.RApp.P. 4(b), and this Court has jurisdiction under N.D. Const, art.’ VI, §§ 2, 6, and N.D.C.C. § 29-28-06.

II

[¶ 8] The State claims Smith does not have the right to appeal, because he attempted to suppress evidence relating to the acquitted charge of possession of a controlled substance with the intent to distribute.

[¶ 9] A defendant may appeal a verdict of guilty, but may not appeal an order on a motion to suppress, absent an appealable order of judgment. N.D.C.C. § 29-28-06. Motions to suppress evidence on the grounds that the evidence was unlawfully obtained must be raised prior to trial. N.D.R.Crim.P. 12(b)(3).

[¶ 10] Smith is appealing two criminal judgments: possession of drug paraphernalia, Wells County number 02-K-087; and possession of a controlled substance, Wells County number 02-K-088. Prior to the trial, he moved to suppress all evidence and statements made the day of his arrest. His motion was titled “Motions to Suppress” and had the Wells County criminal number 02-K-089 in its heading. The transcript of the motion-to-suppress hearing prepared by the court included every count in its title; however, the memorandum and order denying the motion to suppress issued by the district court indicated only case number 02-K-089. The letter accompanying the memorandum from the district court to Smith’s counsel indicated the motion was in regard to all four criminal counts. We conclude the omission of the criminal case.numbers on the memorandum and order denying the motion to suppress was a clerical error and Smith properly preserved his right to appeal.

Ill

[¶ 11] When we review a motion to suppress, we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Gregg, 2000 ND 154, ¶ 19, 615 N.W.2d 515. We will affirm a district court’s decision if “there is sufficient competent evidence fairly capable of supporting the trial court’s' findings, and the decision is not contrary to the manifest weight of the evidence.” City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). “We evaluate the evidence presented to see, based on the standard of review, if it supports the findings of fact.” Id. Questions of law and the ultimate conclusion about whether the facts support a reasonable and articulable suspicion are fully reviewable on appeal. Gregg, at ¶ 20.

[¶ 12] “All searches and seizures must be reasonable, under the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the North Dakota Constitution.” State v. Haibeck, 2004 ND 163, ¶9, 685 N.W.2d 512. A traffic stop temporarily restrains a person’s freedom, resulting in a seizure within the meaning of the Fourth Amendment. State v. Sarhegyi, 492 N.W.2d 284, 285-86 (N.D.1992). A traffic stop, under the facts of this case, is analogous to a “Terry ” stop and must be analyzed under its test. Id. at 286. In reviewing a Terry stop, a court must “(1) determine whether the facts warranted the intrusion of the individual’s Fourth Amendment rights, and if so, (2) determine whether the scope of the intrusion was reasonably related to the circumstances which justified the interference in the first place.” Id. To minimize governmental confrontation with individuals, as required by the Fourth Amendment, an investigating officer must have a reasonable suspicion that a law has been or is being violated. Id.

[¶ 13] The investigating officer, however, does not need personal knowledge that a law has been or is being violated. A directing officer’s knowledge may be imputed to an acting officer when the directing officer relays a directive or request to the acting officer without relaying the underlying facts and circumstances. City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 9, 639 N.W.2d 466. An arresting officer may make an arrest upon a directive even when he is unaware of the factual bases for probable cause, because the arresting officer is entitled to assume that whoever issued the directive had probable cause. State v. Kenner, 1997 ND 1, ¶ 11, 559 N.W.2d 538. The same principle would apply in the reasonable-suspicion context. Id.

[¶ 14] We have upheld investigatory stops of vehicles when the stopping officer received a tip from another police officer or informant and then corroborated the information by personal observations. Id. at ¶ 12. Officer Balfour testified, however, that he did not observe any violations before he stopped the car. We look at the context in which the directing officer obtained the information and analyze it to see whether it constitutes reasonable and articulable suspicion.

[¶ 15] . “To stop a moving vehicle for investigative purposes, an officer must have an articulable and reasonable suspicion that a law has been or is being violated.” Lawrence, 2002 ND 31, ¶ 8, 639 N.W.2d 466. “Reasonable suspicion for a stop exists when a reasonable person in the officer’s position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity.” Id. Reasonable suspicion requires more than a “mere hunch.” Id. We use an objective standard and view the totality of the circumstances to determine whether an investigative stop is valid. Id.

We do not require an officer to isolate single factors which signal a potential violation of the law; but instead, “officers are to assess the situation as it unfolds and, based upon inferences and deductions drawn from their experience and training, make the determination whether all of the circumstances viewed together create a reasonable suspicion of potential criminal activity.” When assessing reasonableness, we consider inferences and deductions an investigating officer would make which may elude a layperson.

Id. (quoting City of Fargo v. Ovind, 1998 ND 69, ¶ 9, 575 N.W.2d 901 (citations omitted)).

[¶ 16] The State argues Chief Kluth had the requisite reasonable suspicion to tell Officer Balfour to stop Smith’s car. The information obtained by a police officer from an anonymous informant cannot alone establish probable cause if the tip provides virtually nothing from which a person might conclude the informant is honest or his information is reliable, or if the information gives absolutely no indication of the basis for identifying the criminal activities. City of Minot v. Nelson, 462 N.W.2d 460, 462 (N.D.1990). The information obtained from an anonymous informant and used for an investigative stop “must be sufficiently reliable to support a reasonable suspicion of unlawful conduct, though not the more exacting standard of probable cause necessary to make an arrest.” Id.

[¶ 17] In the case at bar, Chief Kluth received information from two local citizens about a car leaving the Cenex station after being approached by the two citizen's. Chief Kluth, along with Patrolman Skogen, went to the Cenex station to view the tire marks. Chief Kluth testified he did not conclude his investigation until the next day, because the Cenex station had been broken into several times in recent years and he needed to cheek with the Cenex manager and bulk truck driver to see whether there was any vandalism or whether any fuel was taken.

[¶ 18] The State asserts the facts in this case are similar to those in State v. Corum, 2003 ND 89, 663 N.W.2d 151. This Court noted in Comm that “although an area’s reputation for criminal activity is an articulable fact on which a police officer may legitimately rely, it cannot solely support a finding of reasonable suspicion.” Id. at ¶ 13 (citations omitted). The Court stated the additional fact that the occupants of the vehicle were outside of their car with a flashlight at 4:00 a.m. near a previously burglarized anhydrous ammonia storage tank located in a rural area was significant in concluding there “was a reasonable and articulable suspicion of unlawful activity justifying an investigative stop of the vehicle.” Id. at ¶ 16.

[¶ 19] Smith argues this case is more similar to Sarhegyi,, in which this Court said that a police officer did not have a reasonable suspicion to stop a car that was parked in a farm implement lot at 1:30 a.m. when the driver turned the , car’s headlights on and attempted to leave when the officer entered the parking lot. Sarhegyi 492 N.W.2d at 285. This Court noted the officer testified that the defendant did not violate “any traffic law prior to the stop, that there were no indicia of an emergency of any kind, and that there were no reports of criminal activity in the area.” Id. at 286. This Court noted the only bases for the officer’s suspicions — the time of night, the burglary possibilities, the safety of the occupant, whether the car was stolen, whether someone needed assistance, and the fact that the defendant began to pull away from the officer — either conflicted with his testimony or were légally insufficient for reasonable suspicion. Id. Adopting language from court cases in other' jurisdictions, this Court said that unless “combined with other objectively valid indicia of suspicion, courts have held that mere avoidance of a police' car is insufficient unless erratic, fast, and extreme.” Id. at 287.

[¶ 20], The facts in this case are closer to the factual situation in Sarhegyi than in Corum. Smith and Cunningham were in the Fessenden Cenex parking lot around midnight, just sitting in the car when the residents approached. There was no testimony to indicate any kind of emergency, there were no reports of criminal activity in the area, and there was no indication of safety concerns of the occupants. There was testimony that they pulled out of the parking lot quickly, spinning gravel, but this is not the same as erratic, fast, and extreme driving to avoid a police officer. Their flight from the lot after being approached in the dark by two persons unknown to them is more reasonable and less suspicious than someone’s fleeing from a marked police vehicle. Smith' could have been concerned for their safety, which would make his quick departure from the lot less suspicious. Smith’s sitting in the parking lot, like the defendant in Sarhegyi,• by itself is not a reasonable and articulable suspicion to order another police officer to stop the vehicle.

[¶ 21] With the addition of at least another factor, courts have upheld circumstances that involve a stop of an seemingly innocent car. Sarhegyi, 492 N.W.2d at 287.

See State v. Hornaday, 477 N.W.2d 245 (N.D.1991) [officer informed that three people in vehicle parked in a shopping center parking lot were drunk and officer observed occupants drinking a beverage]; State v. Rodriguez, 454 N.W.2d 726 (N.D.1990) [arrest warrant as to the person affiliated with the vehicle]; State v. Smith, 452 N.W.2d 86 (N.D.1990) [beer bottles around car, suspicion of open-bottle law violation]; Geiger v. Baches, 444 N.W.2d 692 (N.D.1989) [high crime area, known license suspension]; State v. Thordarson, 440 N.W.2d 510 (N.D.1989) [unidentified call and observed speeding]; Wibben v. North Dakota Highway Comm’r, 413 N.W.2d 329 (N.D.1987) [officer verifies details of anonymous tip]; State v. Placek, 386 N.W.2d 36 (N.D.1986) [rear lights not operating]; State v. Schwartz, [239 Neb. 84,] 474 N.W.2d 461 (1991) [vehicle matched description of that involved in previous criminal activity]; People v. Murray, [137 Ill.2d 382, 148 Ill.Dec. 7,] 560 N.E.2d 309 (1990) [community care-taking function in approaching car on roadside with sleeping occupant inside]; State v. Rein, [234 Neb. 917,] 453 N.W.2d 114 (1990) [recent vandalism where the car was parked]; State v. Johnson, 444 N.W.2d 824 (Minn.1989) [sudden and extreme evasive conduct after seeing police]; State v. Clayton, [113 Idaho 817,] 748 P.2d 401 (1988) [driver slumped over wheel, ignition on]; State v. Kuskowski, [200 Conn. 82,] 510 A.2d 172 (1986) [driver unconscious and propane tank lit inside car]; State v. Boswell, [170 W.Va. 433,] 294 S.E.2d 287 (1982) [nearby bar’s history of problems with disorderly conduct, conduct of vehicle’s occupants]; People v. Ledwa, [81 Ill.App.3d 276, 36 Ill.Dec. 617,] 401 N.E.2d 298 (1980) [driver asleep]; State v. Montoya, [94 N.M. 542,] 612 P.2d 1353 (App.1980) [officer investigating burglary scene notices stolen items in plain view]; Guardiola v. State, [268 Ind. 404,] 375 N.E.2d 1105 (1978) [car against fence pole, driver lying in front seat].

Sarhegyi 492 N.W.2d at 287-288.

[¶ 22] The State argues the additional facts, including the spinning out of the parking lot on gravel and speeding away down the road, would lead a police officer to find reasonable suspicion. The State also claims there was a possibility of burglary because Cenex had been broken into before and there were wet spots behind the bulk fuel tank. We conclude these factual circumstances do not rise to the level of reasonable and articulable suspicion.

[¶ 23] The State also argues the police officer was justified in ordering a “freeze” of the situation. In cases involving a limited investigative stop near the scene of a recent crime, when the corroboration of a tip by observing the illegality may not be practical, we have said police may “freeze” a situation. Lawrence, 2002 ND 31, ¶ 11, 639 N.W.2d 466. In Lawrence, a police officer ordered a freeze of the vehicles in a parking lot after he received a call of a fight outside of a bar. Id. at ¶ 2. We held that the officer properly ordered a freeze of the area so he could reasonably investigate the situation. Id. at ¶ 17. Lawrence is distinguishable from this case, however, because Smith was several miles away from the reported activity when Chief Kluth ordered Officer Balfour to stop the vehicle. A police officer may not freeze an illimitable area to conduct his search.

[¶ 24] We therefore conclude that neither Officer Balfour nor Chief Kluth had a reasonable and articulable suspicion to stop Smith.

IV

[¶25] The State argues, even if the officer did not have a reasonable suspicion to pull the vehicle over, the search is still valid because Smith consented to the search.

[¶ 26] The State argues the consent was purged of the unlawful stop because it was given voluntarily as defined in United States v. Beason, 220 F.3d 964, 967 (8th Cir.2000). We use the totality-of-the-circumstances test to determine whether consent is given voluntarily. State v. Mitzel, 2004 ND 157, ¶25, 685 N.W.2d 120; City of Fargo v. Ellison, 2001 ND 175, ¶ 13, 635 N.W.2d 151. In Beason, the Eighth Circuit said an act of free will by the defendant may purge the primary taint of the unlawful stop. 220 F.3d at 967. The court said that to determine whether the consent was voluntary, a court examines the totality of the circumstances. Id. Season’s singular totality-of-the-circumstances approach, however, was abandoned in United States v. Becker, 333 F.3d 858, 862 n. 4 (8th Cir.2003). In Becker, the court opined that “voluntary consent to a search, preceded by an illegal police action, does not automatically purge the taint of an illegal detention.” Id. at 862; see also 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 8.2(d) at 656 (3rd ed. & Supp.2004); United States v. Santa, 236 F.3d 662, 676-77 (11th Cir.2000). 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.” Becker, 333 F.3d at 862; see also United States v. Portillo-Aguirre, 311 F.3d 647, 659 (5th Cir.2002); Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903, 909 (2000); State v. Phillips, 218 Wis.2d 180, 577 N.W.2d 794, 805-06 (1998); United States v. Melendez-Garcia, 28 F.3d 1046, 1054 (10th Cir.1994). If the consent is not purged of the unlawful detention, it is still fruit of the poisonous tree. United States v. Cellitti, 387 F.3d 618, 623 (7th Cir.2004); United States v. Lopez-Arias, 344, F.3d 623, 629 (6th Cir.2003); United States v. Chavez-Villarreal, 3 F.3d 124, 127-28 (5th Cir.1993); State v. Pau'u, 72 Haw. 505, 824 P.2d 833, 836 (1992).

■ [¶ 27] Because the district court did not determine the stop was unlawful, it did not address the issue of whether Smith’s consent to search his car was voluntary under the totality of the circumstances, which included an unlawful stop, and whether the consent was purged of the taint from the unlawful stop. To apply the correct legal standard regarding consent following an unlawful detention, the district court must determine whether the consent to search the car was voluntary in view of the unlawful stop and, if so, was sufficiently purged of the taint from the unlawful stop.

[¶ 28] The State also argues several different theories to justify the unlawful search and seizure, including: search incident to arrest, the automobile exception, and inevitable discovery.

[¶ 29] All of these remedial measures suggested by the State fail because they follow the unlawful stop of the vehicle. A search incident to arrest exception applies if: (1) the arresting officer had probable cause to arrest the defendant before searching him; and (2) the arrest was substantially contemporaneous to the search. State v. Overby, 1999 ND 47, ¶ 9, 590 N.W.2d 703. We concluded the officer was not justified in stopping Smith, so the search incident to arrest fails.

[¶ 30] A police officer may make a valid search of an automobile upon probable cause without a warrant if the officer has a reasonable belief, arising out of the circumstances known to the officer, that the automobile contains articles that are subject to seizure. Gregg, 2000 ND 154, ¶ 33, 615 N.W.2d 515. Again, the automobile exception fails because there was no reasonable and articulable suspicion to stop the vehicle.

[¶ 31] “The inevitable-discovery doctrine provides that evidence obtained from information procured in an unlawful search or seizure is admissible under the fruit-of-the-poisonous-tree doctrine if the evidence would inevitably have been discovered without the unlawful conduct.” Gregg, 2000 ND 154, ¶ 51, 615 N.W.2d 515. This Court has established a two-part test for analyzing the inevitable-discovery doctrine. State v. Handtmann, 437 N.W.2d 830, 837-38 (N.D.1989).

First, use of the doctrine is permitted only when the police have not acted in bad faith to accelerate the discovery of the evidence in question. Second, the State must prove that the evidence would have been found without the unlawful activity and must show how the discovery of the evidence would have occurred.... A showing that discovery might have occurred is entirely inadequate.

Id. at 838 (citations omitted). Inevitable discovery does not apply in Smith’s case, because the police officers would not have found the evidence without the unlawful activity.

[¶ 32] The unlawful activity in this case was the stop, not the questioning of the passenger. Because the stop was unlawful, the subsequent remedial measures offered by the State would not cure the defect of the stop.

V

[¶ 33] We reverse the judgments of conviction and remand for further proceedings consistent with this opinion.

[¶ 34] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.