author: VANDE WALLE, Chief Justice.

text:
    2008 ND 145
    STATE of North Dakota, Plaintiff and Appellee v. Thomas Edward RIVET, Defendant and Appellant State of North Dakota, Plaintiff and Appellee v. Louis Dominic Lugert, Defendant and Appellant.
    Nos. 20080008, 20080011.
    Supreme Court of North Dakota.
    July 21, 2008.

      Reid A. Brady, Assistant State’s Attorney, Fargo, ND, for plaintiff and appellee.
    Mark T. Blumer, Valley City, ND, for defendant and appellant Thomas Edward Rivet.
    Monty G. Mertz, Fargo, ND, for defendant and appellant Louis Dominic Lugert.
   VANDE WALLE, Chief Justice.

[¶ 1] In these consolidated cases, Thomas Rivet appealed a criminal judgment entered after being found guilty by a jury of robbery and attempted murder and Louis Lugert appealed a criminal judgment entered after being found guilty by a jury of being an accomplice to attempted murder and an accomplice to robbery. We reverse the judgments against Rivet and Lugert and remand for a new trial.

I.

[¶ 2] Appellants were accused of assaulting William Bluedog in February 2007 and tried together by a jury in September 2007. Bluedog testified that Lugert tried to choke him and Rivet stabbed him when he tried to resist Lugert. Appellants claim Rivet stabbed Bluedog to protect Lugert from an attack initiated by Blue-dog.

II.

[¶ 3] Appellants argue the prosecutor engaged in misconduct during closing and rebuttal arguments when he vouched for the credibility of Kelly Miller, Rivet’s girlfriend and a State’s witness. The following comments by the prosecutor are at issue in this case:

Kelly’s testifying today I would submit is truthful on direct. She got scared. Mr. Fisher got up and he questioned her. She sees her ex-fiancé starring (sic) at her, on again, off again relationship. He’s starring (sic) at her and suddenly her testimony changes. You saw how her testimony changed. She was being truthful on direct. As soon as Mr. Fisher put her under pressure, she began to lie.... Kelly’s change of heart. She came in here, folks. She told the truth on direct. When Mr. Fisher got up and cross-examined her, she in that instant had to choose between love and fear and what she was getting in exchange for the testimony. She chose love and fear. She chose her ex-fiancé. You saw her. She had a difficult time testifying on direct. It was hard telling you what she did with her ex-fiancé and Mr. Lugert that night. It was hard. And when she was pressed, she changed.

[¶ 4] The control of closing arguments is largely within the discretion of the trial court, though arguments by counsel must be confined to facts in evidence and the proper inferences that flow therefrom. City of Williston v. Hegstad, 1997 ND 56, ¶ 8, 562 N.W.2d 91 (citation omitted). On appeal, this Court must consider the probable effect a prosecutor’s inappropriate comments would have on the jury’s ability to judge the evidence fairly. Id. (citation omitted). A prosecuting attorney’s improper argument may induce the jury to trust the government’s view rather than its own judgment of the evidence when deliberating. Id. An attorney has a right to argue to the jury the credibility of witnesses as long as he confines that argument to the evidence and fair inferences that arise therefrom. Id. at ¶ 12.

[¶ 5] A prosecutor’s closing argument may properly draw reasonable conclusions and argue permissible inferences from the evidence, but a prosecutor may not create evidence by argument or by incorporating personal beliefs. State v. Clark, 2004 ND 85, ¶ 9, 678 N.W.2d 765. In Clark, this Court found comments about the nature of the evidence and an opinion that the defendant’s version did not make sense to be permissible. Id. at ¶ 11. We also noted the jury instructions that “arguments of counsel are not evidence,” and “[i]f counsel have made statements or expressed opinions to you not supported by the evidence, you should disregard those statements and opinions and be guided by the evidence in this case.” Id. We concluded any possible prejudice was minimized by the instructions and any isolated statements suggesting the prosecutor incorporated his personal beliefs into closing argument or vouched for the credibility of witnesses was not obvious error. Id.

[¶ 6] Because there was no objection to the prosecutor’s argument at trial, we will not reverse unless it was an obvious error affecting a defendant’s substantial rights. Hawes v. N.D. Dept. of Transp., 2007 ND 177, ¶10, 741 N.W.2d 202. We may notice a claimed error not brought to the district court’s attention if there was an error that is plain and affects substantial rights. Id. We exercise our authority to notice obvious error cautiously and only in exceptional circumstances where the defendant has suffered serious injustice. Id. In deciding if there is obvious error, we consider the probable effect of the prosecutor’s improper comments on the jury’s ability to judge the evidence fairly. Id. The error should be corrected where it seriously affects the fairness, integrity or public reputation of judicial proceedings. Id.

[¶ 7] The comments regarding Miller’s possible reason for altering her story were a reasonable conclusion and permissible inference to be drawn from the evidence presented to the jury. The jury heard testimony of Miller’s present on and off relationship with Rivet, as well as observed her hesitation in testifying against him. Miller also testified to lying to investigating officers after her arrest regarding what occurred the night of the incident. Evidence was presented showing Rivet and Miller were still in contact, including phone calls and letters discussing the case. The prosecutor did not vouch for Miller but rather, based on the evidence and the manner in which it was adduced, drew a permissible inference regarding why Miller changed her testimony on the stand. Further, jury instructions similar to those given in the Clark ease were provided, minimizing any possible prejudice resulting from the statements. We conclude the prosecutor’s comments, if error, were not obvious error.

III.

[¶ 8] Appellants argue the prosecutor improperly commented on Rivet’s post-arrest and post-Miranda silence. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). During direct examination, Rivet stated that while running from the scene, he thought, “Let me go back and clear my name.” He again stated during cross-examination that he wanted to go back to clear his name and “I want to clear my name but I hear dogs and I panic.” Shortly thereafter, the following questioning took place:

Q. You had an opportunity to clear your name, didn’t you?
A. Yes.
Q. You were picked up by police?
A. Yes.
Q. And you were given an opportunity to give a statement, weren’t you?
A. Yes.
Q. Did you clear your name at that time?
A. I was informed through many years of experience and police office (sic) movies and everything else get a lawyer first. You talk directly to a lawyer. You do not talk to anybody else. You do not talk to press. You go directly with a lawyer. Let the lawyer clear your name.
Q. Well, Mr. Rivet, that’s not how I recall it. You recall having an interview with Mr. Nelson, don’t you?
A. And I said I went to South Fargo Wal-Mart — or, excuse me, South Fargo by McDonalds. I don’t remember anything about the north and I want a lawyer. That consisted of my statement. I want a lawyer.
Q, Perhaps, Mr. Rivet, if we play the interview for you you’ll recall what you said to Mr. Nelson.
(State’s Exhibit 30 was played for the jury-)
Q. Mr. Rivet, it didn’t sound like you took the opportunity to clear your name at that time. As a matter of fact, it sounded like you were trying to create an alibi by saying you were up north.
A. If that’s the way you want to look at it, sir.

Exhibit 30, the audio recording of the police interrogation of Rivet, ended with Rivet requesting an attorney. Appellants did not object to the questions.

[¶ 9] It is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. State v. Schneider, 270 N.W.2d 787, 792 (N.D.1978). The prosecution may not, therefore, use at trial the fact that a defendant stood mute or claimed this privilege in the face of accusation. Id. (citation omitted). Improper comments on a defendant’s right to remain silent is constitutional error which may be reviewed on appeal even though not objected to at the time of trial. Id.

[¶ 10] A prosecutor’s improper use of a defendant’s post-arrest silence is an error for which the harmless error analysis is appropriate. State v. Jando, 397 N.W.2d 59, 66 (N.D.1986). Reviewing courts must ignore harmless errors, including most constitutional violations. Id. A harmless error is “[a]ny error, defect, irregularity or variance that does not affect substantial rights” and “must be disregarded.” N.D.R.Crim.P. 52(a). “[Bjefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless ' beyond a reasonable doubt.” Schneider, at 792 (citing Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). To determine the effect of the error on a defendant’s constitutional rights we must consider the entire record and the probable effect of the actions alleged to be error in light of all the evidence. Id. The beneficiary of a constitutional error has the heavy burden of proving beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Id.

[¶ 11] The State argues its comments were permissible impeachment. A party can attack a witness’s credibility by impeachment. N.D.R.Ev. 607. However, a prosecutor’s use of a defendant’s post-arrest silence after receiving Miranda warnings to impeach a defendant’s exculpatory story, told for the first time at trial, violates the defendant’s right to due process. Hegstad, at ¶ 9. After a person has been arrested and given the Miranda warnings, “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Id. (citations omitted). However, if a defendant testifies to an exculpatory version of events he claims to have told the police upon arrest, the prosecution may use post-arrest silence to contradict the defendant’s version. Id.

[¶ 12] Where a defendant did not remain silent after his arrest, the prosecutor’s questions are a valid means of impeaching his testimony. State v. Burke, 2000 ND 25, ¶ 30, 606 N.W.2d 108. Rule 613, N.D.R.Ev., permits using a witness’s previous statements to impeach the witness’s testimony. See also State v. Demery, 331 N.W.2d 7, 11 (N.D.1983) (stating “[i]t is the established rule in this State that a prior inconsistent statement may be used to impeach a witness”).

[¶ 13] The initial comment by the prosecutor on Rivet’s pre-arrest failure to clear his name may be a permissible comment, given Rivet’s prior inconsistent statements regarding his desire to clear his name. Further, the comment focused on Rivet’s opportunity to clear his name prior to being arrested, on the night of the stabbing.

[¶ 14] Although the State argues the evidence shows Rivet gave statements to Nelson before invoking his right to an attorney and the cross-examination focused on Rivet’s prior statements as “trying to create an alibi by saying you were up north,” the line of questioning, quoted at length above, followed directly after the recording of the police interview was played before the jury. That recording ended with Rivet’s request for an attorney. Immediately after that followed the comment that Rivet did not take the opportunity to clear his name at that time. The quoted line of questioning focused on the opportunity Rivet had to clear his name once he was arrested, the day after the stabbing. The State draws too fine a line to say the comment applies only to the statements made to the police before Rivet requested an attorney and the interview ceased but not to the fact Rivet requested an attorney when that is the last statement on the recording heard by the jury. This is clearly a comment on the fact Rivet remained silent when given the opportunity to give a statement to the police and, in the sequence of the presentation of the evidence, is an impermissible comment on the fact Rivet claimed his privilege to remain silent when accused by the police. Finally, the State’s argument that the prosecutor was impeaching Rivet’s claim of self-defense fails under Hegstad because Rivet had not made prior statements inconsistent with his claim of self-defense and his claim of self-defense was an exculpatory story told for the first time at trial.

[¶ 15] Because the State is the beneficiary of the constitutional error, it has the heavy burden of proving beyond a reasonable doubt the comments on Rivet’s post-arrest silence did not contribute to the verdict obtained. Allowing the jury to hear Rivet’s request for an attorney, coupled with the immediate comment by the prosecutor that Rivet failed to use an opportunity to clear his name, likely damaged his credibility in the eyes of the jury. We are not convinced beyond a reasonable doubt the comments on Rivet’s post-arrest silence did not contribute to the guilty verdict. We therefore reverse the judgment against Rivet and remand for a new trial.

[¶ 16] While it is clear we must reverse Rivet’s judgment due to the prosecutor’s comments, Lugert argues his judgment should be reversed as well. He asserts the credibility of himself and Rivet was extremely important to his case and the improper damage to Rivet’s credibility by the prosecutor’s comments on Rivet’s right to remain silent also damaged Lu-gert’s case and his own credibility. The issue of how an improper comment on a defendant’s right to remain silent at trial will affect a co-defendant’s conviction is a case of first impression in North Dakota. The limited case law in other jurisdictions is divided on whether reversal of a defendant’s conviction necessarily entails reversal of a co-defendant’s conviction in these situations.

[¶ 17] In Harper v. State, 151 So.2d 881 (Fla.Dist.Ct.App.1963), the court determined a prosecutor’s comments on a co-defendant’s failure to testify was fundamental error and warranted a new trial for the defendant. The court explained, “Certainly the direct comment that a co-defendant failed to take the stand in the instant case reasonably and logically, though indirectly, called to the attention of the jury the [defendant’s] failure to testify” and noted a prosecutor could not by indirection do that which he could not do directly. Id. at 883. However, a comment on a defendant’s right to remain silent was held to have no effect upon a co-defendant and his right to remain silent in Travieso v. State, 480 So.2d 100, 103 (Fla.Dist.Ct.App.1986). The court did not analyze or explain the rationale behind its holding.

[¶ 18] No comment was made on either Lugert’s or Rivet’s failure to testify at trial as in Harper, and in Travieso the court held the comment had no affect on Travie-so’s co-defendant and his right to remain silent. Here, both Rivet and Lugert gave the same explanation for what occurred in Bluedog’s apartment on the night in question. Their credibility was crucial in convincing the jury to believe their version of the facts. Lugert, as a co-defendant with an identical version of what occurred that night, was relying on Rivet’s credibility. Once Rivet’s credibility was improperly damaged by the prosecutor’s comments, the credibility of Lugert’s version of the story was likewise adversely impacted. Separate informations were issued for each Appellant. However, the trial court apparently ordered that they be tried together as allowed under N.D.R.Crim.P. 13. The Appellants were tied to similar charges through the same evidence. The State benefitted from having one piece of evidence affect both defendants and one error also necessarily affected both defendants. Although the right to remain silent is a personal constitutional right, under these circumstances we conclude the prosecutor’s comments on Rivet’s right to remain silent directly affected Lugert’s case and we therefore reverse the judgment against Lugert as well.

IV.

[¶ 19] Appellants argue the evidence was insufficient to support their convictions. Because we reverse the judgments against Appellants due to the prosecutor’s comments on Rivet’s right to remain silent, we do not need to address this issue.

V.

[¶ 20] We reverse the judgments against Rivet and Lugert and remand for a new trial.

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


source: Caselaw Access Project

author: CROTHERS, Justice.

license: Public Domain

text:
    2008 ND 147
    Darla WEIGEL, Melody Frieson, Diana Seney and Lorna Strand, Plaintiffs and Appellants v. Lane LEE, D.O. and Trinity Health, Defendants and Appellees.
    No. 20070296.
    Supreme Court of North Dakota.
    July 21, 2008.

      Richard H. McGee II (argued), McGee, Hankla, Backes & Dobrovolny, Minot, ND, and Lee R. Bissonette (on brief), Hellmuth & Johnson, PLLC, Eden Prairie, MN, for plaintiffs and appellants.
    Randall S. Hanson (argued) and Donna M. Smith (appeared), Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, ND, for defendants and appellees.
   CROTHERS, Justice.

[¶ 1] Darla Weigel, Melody Frieson, Diana Seney and Lorna Strand (collectively “the Weigels”) appeal from the district court’s judgment for dismissal of their wrongful death claims against Dr. Lane Lee and Trinity Hospital (collectively “Lee”). The Weigels argue the district court misconstrued the wrongful death statutes. We conclude a decedent’s children are able to seek recovery of non-economic damages in a wrongful death action and therefore this case was improperly dismissed. We reverse and remand.

I

[¶ 2] On May 6, 2004, Darlyne Rogers arrived at the emergency room of St. Luke’s Hospital in Crosby, North Dakota, complaining of abdominal pain, nausea and vomiting. X-rays revealed Rogers suffered from pneumonia and a bowel obstruction. A doctor at St. Luke’s Hospital contacted Dr. Lane Lee who agreed to treat Rogers. Rogers was transferred as Lee’s patient to Trinity Hospital in Minot. Rogers, despite being critically ill, was admitted to a room on the “regular” floor of the hospital. Three and one-half hours later, Rogers began vomiting bodily waste and aspirating it into her lungs. Rogers ultimately died.

[¶ 3] Rogers’ adult children, the Weig-els, brought a suit on their own behalf against Lee and Trinity Hospital, alleging negligence. The complaint stated,

“This is an action to recover damages for the wrongful death of Darlyne Rogers ... pursuant to N.D.C.C. Chapter 32-21.... [T]he Plaintiffs have sustained injuries and damages, both economic and non-economic.... The Plaintiffs have sustained mental and emotional anguish as a result of the Defendants’ negligence and their mother’s death. Furthermore, the Plaintiffs have been denied the society, comfort, counsel and companionship of Darlyne Rogers.”

The Weigels’ case was tried to a jury. After testimony concluded on April 7, 2006, the parties disagreed over jury instructions, leading the district court to examine Butz v. World Wide, Inc., 492 N.W.2d 88 (N.D.1992). The district court determined that under Butz, children do not have a cause of action for loss of parental consortium. The district court announced its intention to dismiss the Weigels’ loss of consortium claim. Because the Weigels could not prove economic damages, and because the court was persuaded the remaining mental and emotional anguish claim was inseparable from the loss of consortium claim, the court dismissed the entire ease and discharged the jury.

[¶ 4] In its written order dated April 21, 2006, the district court reconsidered its opinion, instead deciding sufficient evidence existed for the case to have gone to the jury on the mental and emotional anguish claim under N.D.C.C. ch. 32-21 and N.D.C.C. § 32-03.2-04. Thus, the district court determined the Weigels were entitled to a new trial.

[¶ 5] On September 6, 2006, the district court granted the Weigels’ motion for a new trial. However, the order stated the reasoning in the April 21, 2006 order was flawed. The court wrote, “Rather than allowing the jury to consider awarding damages for mental anguish/emotional distress allegedly sustained by the surviving children of the decedent ... the jury should instead be allowed to consider awarding compensation for non-economic damages — such as, pain, suffering, mental anguish, emotional distress or humiliation — allegedly sustained by the decedent herself, prior to her death.... Otherwise stated, Darlyne Rogers’ surviving heirs ... ‘step into her shoes’ in terms of the cause of action available against the Defendants in this matter.”

[¶ 6] On January 18, 2007, the Weigels filed a Motion for Reconsideration of Order, arguing the district court misconstrued the wrongful death statute. On April 24, 2007, the court reaffirmed the order for a new trial, commenting that much of the court’s and counsel’s confusion was due to a failure to distinguish between a wrongful death action under N.D.C.C. § 32-21-01 and a survival action under N.D.C.C. § 28-01-26.1. Ultimately, the court determined Butz is dispositive and children are not entitled to non-economic damages on their own behalf for the death of a parent.

[¶ 7] On May 2, 2007, the Weigels informed the court they sought only non-economic damages resulting from Rogers’ death. Lee moved to dismiss, and because the Weigels sought only a remedy the court previously determined improper, Lee’s motion was granted on May 31, 2007. The Weigels appeal the judgment of dismissal, contending the district court’s interpretation of the wrongful death act is erroneous. We agree.

II

[¶ 8] “Statutory interpretation is a question of law, fully reviewable on appeal.” Chamley v. Khokha, 2007 ND 69, ¶ 12, 730 N.W.2d 864.

[¶ 9] The district court erred by blending three distinct claims for tortious conduct. At various points in its orders, the district court discussed (1) loss of consortium claims arising out of personal injury actions, (2) survival actions and (3) wrongful death actions. This Court and North Dakota’s statutes distinguish between these three claims, as we explain below.

[¶ 10] First, English common law recognized an action for loss of consortium arising out of tortious conduct that resulted in personal injury. Hastings v. James River Aerie No. 2337, 246 N.W.2d 747, 749 (N.D.1976). Historically, “a husband’s right to recover for the loss of his wife’s consortium was considered a property right” with a loss of consortium being defined as “love, companionship, affection, society, comfort, solace, support, sexual relations, and services.” Id. at 749-50. Under this original approach, “only a husband could recover for the loss of [his wife’s] consortium.” Id. at 751. The contemporary interpretation of this common law concept includes recovery for wives as well as for husbands. Id. In Hastings, this Court acknowledged both spouses’ right to recover for loss of consortium, but refused to extend this type of recovery to children who suffer the loss of a parent’s consortium. Id. at 753. Nonetheless, this is not the basis of the Weigels’ action, and as this Court importantly clarified in Hastings, the inability of children to recover for loss of consortium arising out of personal injury to a parent “should not be construed to prohibit recovery where a parent dies and recovery is allowed under the Wrongful Death Act.” Id.

[¶ 11] The distinction between loss of consortium in personal injury and in wrongful death actions is important here because Lee argues this Court’s decision in Butz indicates a decedent’s children are not entitled to damages in a wrongful death action. Lee misapplies Butz. Butz was not a claim under the wrongful death act because the tortious conduct resulted in severe injury, not in death. Id. at 88. This Court acknowledged the loss of consortium claim made in Butz was like that made in Hastings, arising out of the common law. See Butz, at 92. Because Butz does not address claims made under the wrongful death statutes, it is not applicable to the Weigels’ claim.

[¶ 12] Second, N.D.C.C. § 28-01-26.1 provides for survival actions: “No action or claim for relief, except for breach of promise, alienation of affections, libel, and slander, abates by the death of a party or of a person who might have been a party had such death not occurred.” For example, in Nodak Mut. Ins. Co. v. Stegman, 2002 ND 113, ¶ 2, 647 N.W.2d 133, an individual was seriously injured in an automobile accident. He underwent hospital treatment, but died approximately two weeks later. Id. This Court stated, “Clearly a personal injury action existed on behalf of [the injured party] against [the tortfeasor] for various damages, including the medical expenses occasioned by the accident, and that action survived [the injured party’s] death.” Id. at ¶ 15. Survival statutes “are remedial in nature, and are intended to permit recovery by the representatives of the deceased for damages the deceased could have recovered had he lived.... A survival action merely continues in existence an injured person’s claim after death as an asset of his estate.” Sheets v. Graco, Inc., 292 N.W.2d 63, 66-67 (N.D.1980). Although they could have, the Weigels’ complaint indicates they are not seeking damages on Rogers’ behalf as part of a survival action. Instead, the Weigels brought a wrongful death action for their own injuries: “The Plaintiffs have sustained mental and emotional anguish as a result of the Defendants’ negligence and their mother’s death. Furthermore, the Plaintiffs have been denied the society, comfort, counsel and companionship of Darlyne Rogers, all to their injury and damage.”

[¶ 13] Third, N.D.C.C. ch. 32-21 provides for wrongful death actions. The Weigels offer the wrongful death act as the legal basis for their claim. We conclude the Weigels are entitled to seek compensation for Rogers’ wrongful death for the reasons stated below.

[¶ 14] There was no wrongful death claim at common law. Satterberg v. Minneapolis, St. P. & S.S.M. Ry. Co., 19 N.D. 38, 40, 121 N.W. 70, 71 (1909). Early wrongful death statutes severely limited compensable damages. E.g., Haug v. Railway Co., 8 N.D. 23, 32, 77 N.W. 97, 101 (1898). Generally, only pecuniary losses were awarded, with no compensation available for mental anguish or loss of companionship. Id. Contemporary wrongful death statutes tend to address a broader scope of injuries, including those considered non-pecuniary.

“Wrongful death actions are intended to compensate the survivors of the deceased for the losses they have sustained as a result of a wrongful killing. Dependent upon the specific statutory language, losses recoverable by survivors in wrongful death actions often include the prospective loss of earnings and contribution; prospective expenses; loss of services; loss of companionship, comfort, and consortium; and mental anguish and grief.

Sheets, 292 N.W.2d at 66 (emphasis added).

[¶ 15] North Dakota’s wrongful death act, N.D.C.C. ch. 32-21, provides:

“Whenever the death of a person shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured, if death had not ensued, to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation, limited liability company, or company which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured or of the tort-feasor, and although the death shall have been caused under such circumstances as amount in law to felony.”

N.D.C.C. § 32-21-01. This statute “is not a survival statute intended to increase the estate of the deceased, but its purpose is to give a measure of protection to those persons within a fixed degree of relationship to and dependency on the deceased because of actual injury sustained by them by reason of the wrongful killing of the deceased.” Sheets, 292 N.W.2d at 65 (quoting Satterberg, 19 N.D. at 41, 121 N.W. at 71). Damages under the wrongful death act are “based on the loss suffered by the beneficiaries, and not on the loss sustained by the decedent’s estate.” Schneider v. Baisch, 256 N.W.2d 370, 371-72 (N.D.1977) (limiting recovery “to the beneficiary’s actual period of survival” (emphasis added)). A jury determines the quantity of damages and “shall give such damages as it finds proportionate to the injury resulting from the death to the persons entitled to the recovery.” N.D.C.C. § 32-21-02.

[¶ 16] Compensable damages available in wrongful death actions are enumerated in N.D.C.C. § 32-03.2-04:

“In any civil action for damages for wrongful death or injury to a person and whether arising out of breach of contract or tort, damages may be awarded by the trier of fact as follows:
1. Compensation for economic damages, which are damages arising from medical expenses and medical care, rehabilitation services, custodial care, loss of earnings and earning capacity, loss of income or support, burial costs, cost of substitute domestic services, loss of employment or business or employment opportunities and other monetary losses.
2. Compensation for noneconomic damages, which are damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, fear of injury, loss or illness, loss of society and companionship, loss of consortium, injury to reputation, humiliation, and other nonpecuniary damage.”

(Emphasis added.)

[¶ 17] Section 32-21-04, N.D.C.C., clarifies that intended recipients of damages under the wrongful death act are “the decedent’s heirs at law.” This Court has determined “hems at law” for purposes of this statute are “those persons who by the laws of descent would succeed to the property of the decedent in case of intestacy, but in addition, that if members of a preferred class are precluded from recovery for reasons other than death those next entitled to inherit may be considered beneficiaries.” Broderson v. Boehm, 253 N.W.2d 864, 869 (N.D.1977) (holding collateral heirs may recover only when no recovery is possible by a closer relative). A decedent’s descendants are designated by the Uniform Probate Code to share in portions of the intestate estate and are therefore able to seek recovery of damages under the wrongful death act. See N.D.C.C. § 30.1-04-03.

[¶ 18] Persons entitled to recover damages under the wrongful death act should not be confused with persons statutorily authorized to bring an action. Section 32-21-03, N.D.C.C., states:

“The action shall be brought by the following persons in the order named:
1. The surviving husband or wife, if any.
2. The surviving children, if any.
3. The surviving mother or father.
4. A surviving grandparent.
5. The personal representative.
6. A person who has had primary physical custody of the decedent before the wrongful act.
“If any person entitled to bring the action refuses or neglects so to do for a period of thirty days after demand of the person next in order, that person may bring the action.”

The distinction between persons eligible to seek damages from wrongful death actions and those entitled to bring such actions is important because the trial judge is charged with splitting the recovery among eligible heirs. Section 32-21-04, N.D.C.C., states:

“The amount recovered shall not be liable for the debts of the decedent, but shall inure to the exclusive benefit of the decedent’s heirs at law in such shares as the judge before whom the case is tried shall fix in the order for judgment, and for the purpose of determining such shares, the judge after the trial may make any investigation which the judge deems necessary.”

(Emphasis added.) In specific wrongful death actions, overlap will likely exist between plaintiffs bringing the action under N.D.C.C. § 32-21-03 and those entitled to any damages. However, those with authority to bring the action do “not have an absolute right to the damages recovered, and, instead, bring[ ] the action in a representative capacity for the exclusive benefit of the persons entitled to recover.” Goodleft v. Gullickson, 556 N.W.2d 303, 306 (N.D.1996). The wrongful death act “thus differentiatefe] between the capacity to bring an action and the right to share in the damages recovered.” Id. at 306-07; see also N.D.C.C. § 32-21-06 (“The person entitled to bring the action may compromise the same, or the right thereto, and such compromise shall be binding upon all persons authorized to bring the action or to share in the recovery.”). Surviving children are eligible to bring a wrongful death action under N.D.C.C. § 32-21-03(2) if the decedent had no eligible spouse or if the spouse fails to bring an action for thirty days after the children made a demand. But this issue is separate from the children’s ability to recover damages in a wrongful death action.

[¶ 19] Because the wrongful death act does not exclude the decedent’s children from parties entitled to damages and because the damages requested are permitted under N.D.C.C. § 32-03.2-04, the Weigels’ claim should not have been dismissed.

Ill

[¶ 20] We conclude a decedent’s children are entitled to seek recovery of damages in a wrongful death action and this case was improperly dismissed. We reverse the district court’s judgment and remand for further proceedings.

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


text:
    2008 ND 144
    In the Matter of the ESTATE OF Elsie G. THOMPSON, also known as Elsie Thompson, Deceased. Andrea Willa Thompson, as Personal Representative of the Estate of Elsie G. Thompson, Deceased, Petitioner and Appellee v. Ardmore William Thompson, Respondent and Appellant.
    No. 20070294.
    Supreme Court of North Dakota.
    July 21, 2008.

      Albert J. Hardy, Hardy, Maus & Nord-sven, P.C., Dickinson, N.D., for petitioner and appellee.
    James D. Gion, Gion Law Office, Regent, N.D., for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] William Thompson appeals from a district court judgment entered in the probate of his mother’s estate after the district court found he failed to prove he had an oral contract for deed to buy land from his parents, Ardmore and Elsie Thompson. We hold the district court’s finding there was no oral contract for the sale of the land is not clearly erroneous, and we affirm.

I

[¶ 2] When Ardmore Thompson died in 2000, he and Elsie Thompson were the record title owners of approximately 1,180 acres of farm and ranch land in Adams County, which thereafter remained titled in Elsie Thompson’s name as the surviving joint tenant. Elsie Thompson died in 2004. Her 1983 will, which generally devised her property to her four children, was admitted to probate, and her daughter, Andrea Thompson, was appointed personal representative of her mother’s estate. In 2006, the personal representative petitioned the district court for an order compelling Elsie Thompson’s son, William Thompson, to account for and deliver his mother’s assets to the estate. William Thompson answered, claiming he had entered into an oral contract for deed to buy his parents’ land in 1983; he had substantially complied with the terms of the oral contract for deed; and he was entitled to specific performance of the contract, i.e., a deed for the land from his mother’s estate.

[¶ 3] According to William Thompson, he returned to his parents’ farm from military duty in 1963, and he farmed and ranched with them for several years on a share basis, but he never received any compensation from them because “[t]hey had no money so there was nothing to get.” In 1969, William Thompson bought land from a third party and started his own farming and ranching operation, but he also continued working with his parents on a share basis without ever receiving any compensation from them. William Thompson testified he offered to buy his parents’ land on several occasions, but his father would not agree to sell the land. William Thompson claimed that in 1983, his father eventually offered to sell him the 1,180 acres for $150 per acre for a total price of $177,000, plus 6 percent interest, and he counter-offered for $125 per acre for a total purchase price of $147,500, plus 7 percent interest. William Thompson testified that he and his parents agreed at the kitchen table to his father’s offer, which included the sale of cattle and machinery to William Thompson, and which permitted his parents to retain one-half of the oil leases for the land, to use the machinery, and to live on the homestead. William Thompson claimed the parties’ agreement required him to pay for the land with 40 percent of the yearly proceeds from his cattle sales. Although the parties did not execute a written agreement or deed, William Thompson introduced evidence of his father’s initial offer and the counter-offer written on scraps of paper, which William Thompson discovered after his father’s death.

[¶ 4] There was no evidence that either William Thompson or his parents kept records of any payments by William Thompson for the purchase of the land. However, William Thompson presented evidence that proceeds from cattle sales were deposited into Ardmore Thompson’s bank account through 1999. William Thompson testified he paid all the expenses related to the cattle, his father received all the proceeds from the sale of his father’s cattle, and William Thompson paid his father 40 percent of the proceeds from the sale of William Thompson’s cattle as payment for the land. According to William Thompson, he completed payments of principal and interest for the land sometime in 1990 or 1991; he paid approximately $402,000 to his parents from 1983 to 1999; and he initially paid more per year than required by the parties’ agreement and continued making payments to his parents until 1999 because they needed the money.

[¶ 5] William Thompson testified he immediately took over management and operation of the farm and ranch in 1983, obtained crop insurance and liability insurance, and paid about $50,000 in real estate taxes on the land through 2005. In 1984, William Thompson applied to the Agricultural Stabilization and Conservation Service to reconstitute his bases for his farming operation to include the 1,180 acres, and the documentation for the application did not reflect that the 1,180 acres was leased. In financial statements regarding his farming and ranching operation, William Thompson referred to a contract for deed with his parents as a long-term debt. In 1985, Southwest Water Pipeline Authority obtained an easement across part of the land, which was signed as grantors by Ardmore and Elsie Thompson and by William Thompson and his wife and which included a notation that the land was not rented. William Thompson made improvements to the property while he was in possession of the land, including burying electrical lines to the homestead, installing water lines and a well for the homestead, and maintaining fencing. William Thompson testified that after the purchase agreement with his parents, his father quit raising cattle, and in 1986, his father transferred his cattle brand to William Thompson. According to William Thompson, on several occasions he suggested to his father that they execute a written contract for the sale of the land, but his father would “[t]urn around and walk away.”

[¶ 6] Ardmore and Elsie Thompson’s tax returns from 1983 through 2000 did not report a sale of the land to William Thompson or any interest payments received from William Thompson, and the parents depreciated the farm buildings on those returns. The parents’ tax returns also reported farm rental income, and their tax preparer testified he was never informed that any of the land had been sold. Ardmore and Elsie Thompson’s tax returns also reported the livestock sales as ordinary income from the sale of cattle.

[¶ 7] In 1989, Ardmore Thompson executed a will in which he left “[a]ll of my real estate which I may own at the time of my demise” to his four children and to William Thompson’s wife in equal shares. In 1997, Ardmore Thompson executed a quit claim deed, placing the land in joint tenancy with Elsie Thompson. There was evidence that shortly before his death, Ardmore Thompson gave a bill of sale for his livestock to William Thompson, acknowledging the livestock had been paid for in full, and William Thompson made no further payments of cattle proceeds to Elsie Thompson after Ardmore Thompson’s death in 2000.

[¶ 8] After a bench trial, the district court found William Thompson failed to prove by clear and definite proof that he had an oral contract for deed to buy the land from his parents. The court found that William Thompson failed to prove his payments to his parents were for the purchase of the land and that the consent necessary for an agreement between the parties was lacking. The court found William Thompson’s possession of the land was consistent with a lease; William Thompson’s improvements to the land were not valuable, substantial, and permanent and were equally consistent with a lease; William Thompson’s financial statements conflicted with claimed payments for the land in several respects, and his payments appeared to apply to the cattle arrangement and lease payments and not to a land purchase; and Ardmore Thompson walked away from William Thompson when William Thompson suggested the need for a written contract, which established Ardmore Thompson did not agree to sell the land to William Thompson. The court decided William Thompson’s part performance was not consistent with only an oral contract for the sale of the land and he was not entitled to specific performance of the alleged oral contract for the sale of the land. The court granted possession of the land to the personal representative and ordered William Thompson to provide an accounting for his use of the land from 2000 through 2007.

II

[¶ 9] William Thompson argues the district court clearly erred in finding he did not have an oral contract with his parents to purchase their land. He claims the court’s finding there was no oral contract was induced by an erroneous view of the law, because the court confused whether a contract had been formed with whether the contract survived the statute of frauds and used criteria for the statute of frauds to decide whether a contract existed. He contends the court looked at each fact separately rather than looking at the composite facts and circumstances.

[¶ 10] The existence of an oral contract is a question of fact. Kuntz v. Kuntz, 1999 ND 114, ¶ 7, 595 N.W.2d 292. In an appeal from a judgment entered after a bench trial, a district court’s findings of fact are reviewed under the clearly erroneous standard of N.D.R.Civ.P. 52(a). Fladeland v. Gudbranson, 2004 ND 118, ¶ 7, 681 N.W.2d 431. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made.” Id. A district court’s choice between two permissible views of the evidence is not clearly erroneous, and simply because we may have viewed the evidence differently does not entitle us to reverse the district court. Edward H. Schwartz Constr., Inc. v. Driessen, 2006 ND 15, ¶ 7, 709 N.W.2d 733. In a bench trial, the district court decides credibility issues. Id. We give due regard to the district court’s opportunity to assess the witnesses’ credibility, and we do not second guess the court on its credibility determinations nor do we reweigh the evidence. Id.

[¶ 11] The requisites for a valid contract are parties capable of contracting, consent, a lawful object, and sufficient consideration. N.D.C.C. § 9-01-02; Kuntz, 1999 ND 114, ¶ 7, 595 N.W.2d 292; Cooke v. Blood Systems, Inc., 320 N.W.2d 124, 128 (N.D.1982). See Anderson v. Mooney, 279 N.W.2d 423, 426-27 (N.D.1979). The parties’ consent must be free, mutual, and communicated to each other. N.D.C.C. § 9-03-01; Kuntz, at ¶ 7; Anderson, at 426-27. Under N.D.C.C. § 9-03-16, “[cjonsent is not mutual unless the parties all agree upon the same thing in the same sense.” See Anderson, at 427.

[¶ 12] In some contexts, this Court has recognized that oral contracts must be established by a preponderance of the evidence. Matter of Estate of Hill, 492 N.W.2d 288, 293-94 (N.D.1992) (oral loan contract); Hofmann v. Stoller, 320 N.W.2d 786, 790-91 (N.D.1982) (part performance of oral contract for sale of feed under Uniform Commercial Code). But, in the context of contracts for the sale of land, the statute of frauds provides that an agreement for the sale of real property is invalid unless the agreement is in writing and subscribed by the party to be charged. N.D.C.C. § 9-06-04(3); Fladeland, 2004 ND 118, ¶ 8, 681 N.W.2d 431; Anderson, 279 N.W.2d at 427-30; Syrup v. Pitcher, 73 N.W.2d 140, 144 (N.D.1955). In the absence of a written contract or agreement, N.D.C.C. § 47-10-01 allows a “court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof.” Fladeland, 2004 ND 118, ¶ 8, 681 N.W.2d 431; Anderson, 279 N.W.2d at 427. Part performance of an oral contract must be consistent only with the existence of the alleged oral contract. Fladeland, at ¶ 8; Anderson, at 429; Buettner v. Nostdahl, 204 N.W.2d 187, 195 (N.D.1973) overruled on other grounds in Shark v. Thompson, 373 N.W.2d 859, 867-69 (N.D.1985). Valuable, substantial, and permanent improvements may be considered part performance, removing an oral contract from the statute of frauds. Green v. Gustafson, 482 N.W.2d 842, 848 (N.D.1992); Syrup, 73 N.W.2d at 142. If, however, the improvements indicate some other relationship, such as a landlord and tenant relationship, or can be accounted for through the application of some other hypothesis, they are not sufficient to constitute part performance removing the contract from the statute of frauds. Fladeland, at ¶ 8; Anderson, at 429; Buettner, at 195.

[¶ 13] In Anderson, at 429 (quoting Buettner, at 195) we explained the quantum of proof necessary to successfully assert part performance of an oral contract for the sale of land in the context of a claim for specific performance:

“As evidenced by the test required in this state to successfully assert part performance, the court’s overriding concern is precisely directed toward and concerned with a quantum of proof certain enough to remove doubts as to the parties’ oral agreement:
“ ‘The first requirement of the doctrine that part performance of an oral contract exempts it from the provisions of the statute of frauds is that the contract be proven by evidence that is clear and unequivocal and which leaves no doubt as to the terms, character, and existence of the contract. * * *
“‘A mere preponderance of the evidence is not sufficient. If the evidence leaves it at all doubtful as to whether or not a contract was entered into, the court will not decree specific perform-uncc ⅝‡⅜⅜⅜⅜⅜⅜⅜
“ ‘Another requirement of the doctrine * * * is that the acts relied upon as constituting part performance must unmistakably point to the existence of the claimed agreement. If they point to some other relationship, such as that of landlord and tenant, or may be accounted for on some other hypothesis, they are not sufficient.’ ”

[¶ 14] Here, the district court found the improvements to the property made by William Thompson did not increase the value of the property; the income tax returns filed by Ardmore and Elsie Thompson after 1983 did not report or reflect a sale of the land to William Thompson; and William Thompson’s financial statements conflicted with his claimed payments for the land in several respects. The court found William Thompson’s payments appeared to apply to a “cattle arrangement and/or lease payments for the property” and not to the purchase of the land. The court said Ardmore Thompson’s actions in walking away from William Thompson when asked to execute a written contract established Ardmore Thompson did not agree to sell the land. The court decided the part performance by William Thompson was not consistent with only an oral contract; William Thompson failed to clearly and definitely prove payments made by him were for the purchase of the real estate; and he failed to prove by clear and definite evidence the existence of an oral contract for the sale of land which possessed all the necessary elements and features of an enforceable agreement. Although the district court’s findings about the existence of an oral agreement considered criteria relevant to the statute of frauds and specific performance in the context of finding there was no contract for the sale of land, the court’s findings reflect a correct application of the burden of proof for claims for specific performance of an alleged oral contract to convey land. See Cooke, 320 N.W.2d at 129; Anderson, 279 N.W.2d at 429; Buettner, 204 N.W.2d at 195; Syrup, 73 N.W.2d at 144.

[¶ 15] We do not reweigh the evidence or second guess the district court on its credibility determinations. There is evidence in this record that supports the district court’s findings, and we are not left with a definite and firm conviction the court made a mistake in finding William Thompson failed to prove the existence of an oral contract for the sale of the land. We therefore conclude the district court’s findings are not clearly erroneous.

Ill

[¶ 16] We affirm the district court judgment.

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


author: VANDÉ WALLE, Chief Justice. SANDSTROM, Justice, CROTHERS, Justice,

text:
    2008 ND 142
    STATE of North Dakota, Plaintiff and Appellee v. Marcus Steven LUNDE, Defendant and Appellant.
    No. 20070159.
    Supreme Court of North Dakota.
    July 21, 2008.

      Gary E. Euren, Assistant State’s Attorney, Fargo, ND, for plaintiff and appellee.
    Lorelle A. Moeckel (argued) and Steven M. Light (on brief), Larivee & Light, Fargo, ND, for defendant and appellant.
   VANDÉ WALLE, Chief Justice.

[¶ 1] Marcus Lunde appealed from a criminal judgment entered upon his conditional guilty plea to possession of marijuana with intent to deliver, possession of a controlled substance, and two counts of possession of drug paraphernalia. Because we conclude the district court erred in applying the good faith exception to the exclusionary rule, we reverse and remand to allow Lunde to withdraw his guilty plea.

I

[¶ 2] In August 2006, Officer Jason Hicks of the West Fargo Police Department applied for a search warrant for Lunde’s apartment in West Fargo. In support of the application, Officer Hicks submitted an affidavit detailing information he had received from other law enforcement officials.

[¶ 3] Officer Hick’s affidavit stated that on August 3, 2006, Officer Hicks spoke to Special Agent Donald Burns of the Central Minnesota Drug Task Force. Officer Hicks stated he learned that Special Agent Burns and Detective Chuck Anderson of the Clay County Sheriffs Department had spoken to a confidential informant whose name and identity were known to Burns and Anderson. The confidential informant stated that the informant had become involved in a drug trafficking organization in December 2005 and associated with two individuals, one who was a suspect in a large federal narcotics case in Minnesota and another known as “Slim.” The affidavit states the confidential informant later identified “Slim” from a photograph as Lunde. The confidential informant described Slim’s apartment as being off the “Horace” road, now know as Sheyenne Street in West Fargo, but that the informant had not been in Slim’s apartment. The confidential informant had met Slim in the parking lot of Slim’s building. The confidential informant stated that when the informant met with Slim, the informant would transfer “money-grams receipts” from drug transactions to Slim and would on occasion collect currency from Slim for “money-gram transfer.” According to the affidavit, the confidential informant was aware that Slim was involved in the wholesale selling of marijuana and methamphetamine, that the informant often collected drug debts for Slim and would return the money collected to Slim at Slim’s apartment. The confidential informant also stated that the informant kept a ledger for Slim to keep track of moneys paid and owed for drug debts, commonly referred to as “pay/owe sheets.”

[¶ 4] Officer Hick’s affidavit also states that on August 2, 2006, Officer Hicks spoke to Detective Charles Anderson of the Clay County Sheriffs Department as Detective Anderson was attempting to identify the person known as “Slim” who lived off of “Horace” road. The affidavit states Officer Hicks knew of a person living in the area who could possibly be “Slim.” Officer Hicks knew that on July 21, 2006, the West Fargo Police Department had assisted the Moorhead Police Department in attempting to locate “CJ,” 'who was wanted on narcotics violations, and that Moorhead Police Department detective Jeff Larson had received an anonymous tip that “CJ” was staying with Lunde at the apartment in West Fargo. The affidavit states that Lunde allowed the officers to check the apartment for CJ and, further, that Lunde told the officers he had not seen CJ since Sunday, July 16.

[¶ 5] The affidavit states that on July 20, 2006, Special Agent Burns conducted an interview of a “cooperating individual,” who had been “fully identified” by Special Agent Burns and who wished to remain anonymous. The affidavit states that the cooperating individual was not seeking any monetary gain or special consideration in any ongoing investigation in exchange for the information. The cooperating individual had stated that he or she had lived with a person “for a short period of time” who regularly associated with the suspect in a large federal narcotics case and two other people, one of whom was known to the cooperating individual only as “Slim from Fargo.” The cooperating individual believed all the subjects were involved in trafficking controlled substances and had seen the person with whom he or she had lived in possession of a large amount of marijuana and what the individual believed to be either cocaine or methamphetamine. Officer Hick’s affidavit states that Special Agent Burns “was able to verify much of the information provided by this [cooperating individual] threw [sic] independent means.”

[¶ 6] The affidavit also states Special Agent Burns had “reviewed the electronic telephone book in a cellular telephone taken by [the suspect in a large federal narcotics case] at the time of his arrest.” The affidavit states that there was a cell phone number for Slim. Officer Hicks’s affidavit states that Special Agent Burns had reviewed telephone calls placed by the federal narcotics suspect while he was in custody at the Todd County Detention Center and that during several of these calls the suspect “was attempting to have people contact Slim and advise him of his arrest.”

[¶7] On the basis of Officer Hicks’s affidavit, the magistrate, found probable cause existed and issued the search warrant for Lunde’s West Fargo apartment. On August 3, 2006, Lunde was charged with various drug crimes resulting from the law enforcement officers’ execution of the search warrant at his residence.

[¶ 8] In January 2007, Lunde moved the district court to suppress the evidence because the search warrant for Lunde’s residence was not supported by probable cause in violation of U.S. Const, amend. IV and N.D. Const, art. I, § 8. At a February 2007 motion hearing, the district court issued its opinion denying Lunde’s motion. The court held there was no probable cause for the search warrant, but that the good faith exception applied. During the hearing, the court stated:

THE COURT: Okay. Well, as far as probable cause goes to issue a search warrant there’s a lot about that that was lacking in that affidavit. There was no controlled buy, there was no garbage search, there was no views of the coming and going. No indication as to the reliability of these confidential informants. It came very much second, third, and fourth hand.
The police officers were actually in the apartment itself a week prior to .the application for the search warrant. Nothing from their previous entry into that apartment was used to support probable cause for the application for the search warrant. Given that the informant was a member of the criminal milieu there was need to ascertain that these people were in fact reliable, and they were not.
So as far as that portion of the motion to suppress I will find that there is not probable cause.
Now, we’re going to go on to the good faith exclusion here.... I think there is a good faith exception to the exclusionary rule on this matter. I think that there was- — and he did point out those circumstances, those exceptions, to the rule. Those 4 circumstances.
Certainly there was no intention or— to give false information. The information, we don’t know if it'was true or false that looked like it was still observed in a neutral manner by the magistrate and there was indicia of probable cause. That on a real serious examination of the submissions of the parties and their arguments I found that there was not probable cause but there certainly was indicia in that affidavit and it was reasonable for law enforcement to rely on that affidavit.
So I’m not going to apply the exclusionary rule, I’m going to deny the motion to suppress and since I have found that there was not probable cause I’m also going to deny the motion to compel the disclosure of the confidential informant because I found that there is no showing that the informant was in fact reliable.
So the motion to suppress is denied on the grounds that there was a good faith exception to the exclusionary rule.

[¶ 9] On March 16, 2007, the district court entered its order denying Lunde’s motion to suppress and to compel disclosure of the state’s confidential informant. In May 2007, Lunde entered a conditional guilty plea, reserving his right to appeal from the denial of his motion to suppress. See N.D.R.Crim.P. 11.

II

[¶ 10] Generally, in reviewing a district court’s ruling on a motion to suppress, this Court defers to the district court’s findings of fact and resolves conflicts and testimony in favor of affirmance. State v. Albaugh, 2007 ND 86, ¶ 8, 732 N.W.2d 712 (quoting State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578). However, “we will reverse the district court’s denial of a suppression motion where the decision lacks sufficient competent evidence fairly capable of supporting its findings, and the decision is contrary to the manifest weight of the evidence.” State v. Demurs, 2007 ND 145, ¶ 7, 738 N.W.2d 486. “Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.” Albaugh, at ¶ 8 (internal quotation omitted).

The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, State v. Ressler, 2005 ND 140, ¶ 10, 701 N.W.2d 915 (citation omitted), protects “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV; see also N.D. Const, art. I, § 8. To protect against unreasonable searches and seizures, “[p]robable cause is required for a search warrant under the Fourth Amendment to the United States Constitution and Article I, Section 8 of our state constitution.” State v. Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861 (citing State v. Wamre, 1999 ND 164, ¶ 5, 599 N.W.2d 268).

State v. Schmalz, 2008 ND 27, ¶ 10, 744 N.W.2d 734. “Whether probable cause exists to issue a search warrant is a question of law.” State v. Ebel, 2006 ND 212, ¶ 12, 723 N.W.2d 375; see also State v. Hage, 1997 ND 175, ¶ 10, 568 N.W.2d 741.

[¶ 11] “Probable cause exists when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.” Schmalz, 2008 ND 27, ¶ 11, 744 N.W.2d 734 (citing Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861). Thus, to establish probable cause, there must exist “a nexus between the place to be searched and the contraband sought.” Ebel, 2006 ND 212, ¶ 13, 723 N.W.2d 375; see also State v. Nelson, 2005 ND 59, ¶ 17, 693 N.W.2d 910. “Mere suspicion criminal activity is taking place, which may warrant further investigation, does not rise to a level of probable cause to search.” Ebel, at ¶ 14; see also Thieling, at ¶ 8. Further, while citizen informants are presumed to be a reliable source of information, State v. Rangeloff, 1998 ND 135, ¶ 22, 580 N.W.2d 593, the reliability of informants within the criminal milieu must be established, State v. Stewart, 2006 ND 39, ¶8, 710 N.W.2d 403. “Reliability of an informant can be established in numerous ways, such as corroboration through independent investigation, by the affiant’s vouching or assertion that the informant is reliable, or by the informant giving detailed information overcoming any doubt.” Stewart, at ¶ 8 (citations omitted).

[¶ 12] We use the totality-of-the-circumstances test to review the sufficiency of information before the magistrate, independent of the district court’s decision. Nelson, 2005 ND 59, ¶ 16, 693 N.W.2d 910; Hage, 1997 ND 175, ¶ 11, 568 N.W.2d 741. In making this independent decision whether probable cause exists, “the reviewing court may not look beyond the four corners of the affidavit or application for issuance of the warrant.” Schmalz, 2008 ND 27, ¶ 13, 744 N.W.2d 734 (citing State v. Roth, 2004 ND 23, ¶ 25, 674 N.W.2d 495).

[¶ 13] Here, the district court concluded that probable cause did not exist to support the issuance of the search warrant for Lunde’s residence. We agree with the district court that probable cause did not support the issuance of the search warrant. However, the court denied the suppression motion concluding the good faith exception to the exclusionary rule in this case is dispositive.

111

[¶ 14] Lunde argues that North Dakota’s constitutional protection against unreasonable searches and seizures precludes recognition of the good faith exception to the state’s exclusionary rule. Lunde also argues in the alternative that even if this Court were to incorporate the good faith exception to the state’s exclusionary rule, the good faith exception does not apply in the present case. This Court has not decided whether North Dakota’s constitution precludes a good faith exception to the state’s exclusionary rule. See State v. Herrick, 1999 ND 1, ¶27, 588 N.W.2d 847.

[¶ 15] Generally, evidence which is illegally seized in violation of the Fourth Amendment must be suppressed under the exclusionary rule. See State v. Oxen, 2006 ND 138, ¶ 8, 717 N.W.2d 593; State v. Utvick, 2004 ND 36, ¶ 26, 675 N.W.2d 387. The United States Supreme Court recognized the good faith exception in United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Supreme Court held evidence should not be excluded when an officer has acted in good faith upon objectively reasonable reliance on the magistrate’s probable cause decision. Id. A court applying the good faith exception must decide “ ‘whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.’ ” Herrick, 1999 ND 1, ¶ 15, 588 N.W.2d 847 (quoting Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405).

[¶ 16] In Roth v. State, 2007 ND 112, ¶¶ 31-32, 735 N.W.2d 882, this Court recently addressed the application of good faith exception when the source of the exclusionary rule is the Fourth Amendment:

If the exclusionary rule applies when a statute or rule implicating substantive constitutional rights is violated, and the source of the exclusionary rule is the Fourth Amendment, then we must also consider the application of the good faith exception set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See State v. Herrick, 1999 ND 1, ¶ 12, 588 N.W.2d 847; see also United States v. Maholy, 1 F.3d 718, 721-23 (8th Cir.1993) (holding that the fruits of a nighttime search were admissible under the good faith exception, even if the search violated the Fourth Amendment). Under the good faith exception to the federal exclusionary rule, suppression is not the appropriate remedy for an illegal search if an officer’s reliance on the search warrant was objectively reasonable. Utvick, 2004 ND 36, ¶ 26, 675 N.W.2d 387. The good faith inquiry focuses upon whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization. State v. Van Beek, 1999 ND 53, ¶ 25, 591 N.W.2d 112. However, an officer may not always reasonably rely upon the validity of a search warrant issued by a magistrate. Id. We have recognized four specific situations when the good faith exception does not apply because the officer’s reliance on the warrant is not objectively reasonable:
(1) when the issuing magistrate was misled by false information intentionally or negligently given by the affi-ant; (2) when the magistrate totally abandoned her judicial role and failed to act in a neutral and detached manner; (3) when the warrant was based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) when a reasonable law enforcement officer could not rely on a facially deficient warrant.
Herrick, at ¶ 15 (citing Leon, at 923, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677). “[W]hen reviewing an officer’s reliance upon a warrant, we must determine whether the underlying documents are devoid of factual support, not merely whether the facts they contain are legally sufficient.” United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir.1993) (internal quotation omitted).

(Emphasis added.)

[¶ 17] In Herrick, 1999 ND 1, ¶ 20, 588 N.W.2d 847, this Court, under federal precedent, applied the Leon good faith exception to a violation of N.D.C.C. § 19-03.1-32(3) based on a no-knock warrant issued on a per se basis. The defendant, however, also had argued that “the North Dakota Constitution recognizes greater protections than the federal constitution, and therefore the good-faith exception does not apply to a search warrant issued under state law.” Herrick, at ¶ 21. This Court acknowledged that “[i]t is axiomatic our state constitution may provide greater protections than its federal counterpart.” Id. at ¶ 22. But, because the issue before the Court was a statutory violation of N.D.C.C. § 19-03.1-32(3), rather than a violation of N.D. Const, art. I, § 8, we did not decide whether North Dakota provides greater state constitutional protections than the Fourth Amendment. Herrick, at ¶¶ 26-27. The Court thus left open the issue whether “such heightened protection would preclude a good-faith exception to North Dakota’s exclusionary rule.” Id. at ¶ 27.

[¶ 18] This Court has continued to leave this issue undecided. See, e.g., State v. Utvick, 2004 ND 36, ¶28, 675 N.W.2d 387 (noting the state constitution may provide greater protections than the Fourth Amendment, but holding federal precedent controls because a state constitutional argument was not properly raised and briefed); State v. Dodson, 2003 ND 187, ¶ 21, 671 N.W.2d 825 (holding defendant had not sufficiently raised an argument the state constitution precludes application of the good faith exception to the state’s exclusionary rule); State v. Van Beek, 1999 ND 53, ¶ 26 n. 4, 591 N.W.2d 112 (holding defendant insufficiently raised state constitution violation); State v. Hughes, 1999 ND 24, ¶ 5, 589 N.W.2d 912 (holding federal precedent controlled appeal because defendant had not properly raised or briefed the argument that the state constitution affords greater protection than the federal constitution).

[¶ 19] Here, although the issue has been raised and briefed, we need not address whether North Dakota’s constitution precludes recognition of a good faith exception to the state’s exclusionary rule, because we conclude there is insufficient competent evidence to support the district court’s decision that a good faith exception applies. Cf. State v. Lewis, 527 N.W.2d 658, 663 (N.D.1995) (“Even if we were to follow the good-faith exception, an issue we have yet to decide, ... [t]he implication of criminal activity in this case is simply too weak and tenuous to make it objectively reasonable for the officers to rely on the warrant.”); State v. Mische, 448 N.W.2d 415, 422 (N.D.1989) (“We continue to leave open that question [whether to adopt a good faith exception] for if the good-faith exception were to be adopted we would not apply it here.”); State v. Thompson, 369 N.W.2d 363, 372 (N.D.1985) (explaining that even if we were to apply a good faith rule, the “affidavit was ‘so lacking in indi-cia of probable cause,’ that it was unreasonable for him to rely upon it.”). The third exception to application of the good faith exception is “when the warrant was based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” Herrick, 1999 ND 1, ¶ 15, 588 N.W.2d 847. We conclude a good faith exception does not apply in this case, because the search warrant was based on an affidavit lacking in probable cause indicia rendering official belief in its existence entirely unreasonable.

[¶ 20] Officer Hicks’s affidavit here supplies no more than a tenuous and con-clusory suggestion Lunde was involved in criminal activity. The warrant was based upon stale information from an uncorroborated confidential informant who was part of the criminal milieu. The affidavit fails to establish even a fair probability that contraband or evidence of a crime would be found in the places identified to be searched.

[¶ 21] As the district court correctly observed in concluding probable cause did not exist, there was no independent investigation or corroboration of the confidential informants. In attempting to establish a “nexus” to Lunde’s residence, Officer Hicks’s affidavit is based almost entirely on the assertions of a confidential informant involved in drug trafficking since December 2005, as relayed to Officer Hicks by another law enforcement officer. However, as part of the criminal milieu, nothing appears to establish the reliability of this confidential informant.

[¶ 22] The confidential informant indicated he had not been in Lunde’s apartment, but instead says they met in the parking lot. Further, in describing the confidential informant’s interactions with “Slim,” whom he later identified as Lunde, no time-frame was established for purposes of determining how recently the alleged transactions took place, or whether the information was stale. We have said that where information presented to a magistrate shows “conduct or activity of a ‘protracted and continuous’ nature, the passage of time is less important to the validity of the probable cause” and that “[d]rug dealing is intrinsically a ‘protracted and continuous’ activity.” Ebel, 2006 ND 212, ¶ 15, 723 N.W.2d 375 (citing Hage, 1997 ND 175, ¶¶ 12-13, 568 N.W.2d 741). However, stale information of prior misconduct does not establish probable cause that similar or improper conduct continues to occur. State v. Roth, 2004 ND 23, ¶ 17, 674 N.W.2d 495.

[¶ 23] Here, despite asserting being involved with drug trafficking since December 2005, the confidential informant provided uncorroborated information that he would “on occasion” collect currency from Slim and “often” collected drug debts for Slim, but provided no indication how recently the various transactions described in the affidavit occurred over an almost eight-month period of time. In fact, Officer Hick’s affidavit indicates that Lunde allowed law enforcement to search his apartment for another individual approximately one week before the search warrant was issued. Nothing from this previous search, to which Lunde apparently consented, however, suggests probable cause existed for the subsequent search warrant.

[¶ 24] Other information Officer Hicks included in his affidavit were statements from another law enforcement officer taken from a “cooperating individual” that apparently knew people who associated with Slim. Although these statements suggest that Lunde was associated with other individuals whom the “cooperating individual” believed to be involved in drug trafficking, they do not establish or corroborate that contraband would be discovered at Lunde’s residence. The warrant is a warrant to search a place not a person. Mische, 448 N.W.2d at 422. Simply put, as in Mische, while the information suggests Lunde may have been involved or associated with individuals involved in drug trafficking, there is insufficient information to establish an indicia of probable cause to search the premises indicated in the search warrant.

[¶ 25] We conclude the search warrant was based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” and the district court erred in applying the Leon good faith exception in this case. Because we conclude the good faith exception does not apply in this case, we do not address whether North Dakota’s constitutional protection against unreasonable searches and seizures precludes recognition of the good faith exception to the state’s exclusionary rule.

IV

[¶ 26] We reverse the criminal judgment and remand to the district court to permit Lunde to withdraw his conditional guilty plea.

[¶ 27] CAROL RONNING KAPSNER and MARY MUEHLEN MARING, JJ., concur.

SANDSTROM, Justice,

dissenting.

[¶ 28] Because I would affirm the trial court in denying the motion to suppress evidence, I respectfully dissent.

[¶ 29] The trial court concluded the search warrant was not supported by probable cause, but concluded the results of the search should not be suppressed, because law enforcement relied on the warrant in good faith.

[¶ 80] On appeal, Lunde argues, primarily, there should be no good-faith exception under the North Dakota Constitution and, secondarily, if there is a good-faith exception under the North Dakota Constitution, there was no good-faith reliance on the warrant by law enforcement. The State argues there is or should be a good-faith exception under the North Dakota Constitution, and there was clearly good faith in law enforcement’s reliance on this search warrant.

[¶ 31] The majority says it need not decide whether there is a good-faith exception under the North Dakota Constitution, because no reasonable officer could have believed there was probable cause for the issuance of the warrant.

[¶ 32] I believe, on the basis of the evidence presented in the affidavit, there was probable cause; there is a good-faith exception under the North Dakota Constitution; and, if there was not probable cause for the issuance of the search warrant, there was substantial indicia of probable cause and good-faith reliance on the warrant by law enforcement.

[¶ 33] I have previously explained the basis for rejecting the claim that there is no good-faith exception under the North Dakota Constitution. See, e.g., State v. Herrick, 1999 ND 1, ¶¶ 32-37, 588 N.W.2d 847 (Sandstrom, J., concurring).

[¶ 34] Here the record reflects that a confidential informant had ongoing drug-related business outside Lunde’s apartment. An additional cooperating individual provided corroboration of the involvement of Lunde, the confidential informant, and Glen Forehand, who had been arrested for drug trafficking. Lunde’s phone number was on Forehand’s cell phone at the time of his arrest, and Forehand sought to alert Lunde following Forehand’s arrest.

[¶ 35] The majority asserts that it is not known whether evidence provided by the confidential informant was “stale,” but we have said that when information presented to a magistrate shows “conduct or activity of a ‘protracted and continuous’ nature, the passage of time is less important to the validity of the probable cause” and that “[d]rug dealing is intrinsically a ‘protracted and continuous’ activity.” State v. Ebel, 2006 ND 212, ¶ 15, 723 N.W.2d 375 (citing State v. Hage, 1997 ND 175, ¶¶ 12-13, 568 N.W.2d 741). The evidence present to the magistrate here was of conduct and activity of a protracted and continuous nature.

[¶ 36] The majority further premises its analysis on the erroneous view of the law that every relevant detail provided by the confidential informant must be corroborated. See State v. Birk, 484 N.W.2d 834, 837 (N.D.1992) (“[W]hen law enforcement officers have verified part of the informant’s information by independent investigation, the corroboration lends credence to the remaining unverified information.”).

[¶ 37] It overreaches the record to suggest law enforcement had previously “searched” Lunde’s apartment “apparently” with his consent. The affidavit states, “Marcus [Lunde] allowed officers to check the apartment for ‘CJ’ and Lunde also told officers he had not seen ‘CJ’ since Sunday July 16th.” It seems illogical to think Lunde would have allowed law enforcement to look in his apartment to see whether “CJ” was present if his drugs, drug paraphernalia, or other incriminating evidence was in plain sight.

[¶ 38] Law enforcement acted reasonably and in good faith. I would affirm.

[¶ 39] Dale V. Sandstrom

CROTHERS, Justice,

dissenting.

[¶ 40] I respectfully dissent.

[¶ 41] I believe a good-faith exception to the exclusionary rule exists under the North Dakota Constitution for the reason articulated by Justice Sandstrom in State v. Herrick, 1999 ND 1, ¶¶ 32-37, 588 N.W.2d 847 (Sandstrom, J., concurring). I would affirm the district court’s judgment based on that court’s analysis and determination that probable cause was lacking but that the good-faith exception applied. See Majority Opinion at ¶ 8. However, I do not join Justice Sandstrom’s dissent today because I disagree the search in this case was supported by probable cause. See Sandstrom, J., dissenting at ¶ 32.

[¶ 42] Daniel J. Crothers