Commercial Paper Use.

Right to use commercial paper in a commercial setting is not a fundamental right guaranteed by this section. State v. Goetz, 312 N.W.2d 1, 1981 N.D. LEXIS 421 (N.D. 1981), cert. denied, 455 U.S. 924, 102 S. Ct. 1286, 71 L. Ed. 2d 467, 1982 U.S. LEXIS 728 (U.S. 1982).

Inheritance Tax.

The right to take by will and to devise and bequeath are not natural and inalienable rights, and are not guaranteed by the state Constitution, but are subject to taxation. Moody v. Hagen, 36 N.D. 471, 162 N.W. 704, 1917 N.D. LEXIS 201 (N.D.), aff'd, 245 U.S. 633, 38 S. Ct. 133, 62 L. Ed. 522, 1917 U.S. LEXIS 1712 (U.S. 1917).

Involuntary Civil Commitment.

—Sexually Dangerous Individual.

District court’s finding that defendant was a sexually dangerous individual under N.D.C.C. § 25-03.3-01(8) was supported by clear and convincing evidence because the complainant and two licensed psychologists testified and there was evidence from which the district court could have found that defendant had uncontrolled anger, rage and reduced impulse control and that a nexus existed between defendant’s diagnosed disorders and dangerousness which established serious difficulty in controlling defendant’s behavior sufficient to distinguish defendant from other ordinary criminal recidivists. Furthermore, the court’s decision satisfied the substantive due process requirements. Cass County State's Atty. v. Vantreece (In re Vantreece), 2009 ND 152, 771 N.W.2d 585, 2009 N.D. LEXIS 162 (N.D. 2009).

Keep and Bear Arms.

The Constitution’s protection of the right to keep and bear arms is not absolute; although it prevents the negation of the right to keep and bear arms, that right nevertheless remains subject to reasonable regulation under the state’s police power. State v. Ricehill, 415 N.W.2d 481, 1987 N.D. LEXIS 436 (N.D. 1987).

Subsection (1) of N.D.C.C § 62.1-02-01 does not violate the right to keep and bear arms as provided in this section. State v. Ricehill, 415 N.W.2d 481, 1987 N.D. LEXIS 436 (N.D. 1987).

District court erred as a matter of law in issuing a disorderly conduct restraining order against appellant under N.D.C.C. § 12.1-31.2-01 where the sole basis for the order was the presence of a gun, but evidence of appellant's actions of carrying a handgun while on her private property was constitutionally protected activity and therefore, should have been excluded under N.D.C.C. § 12.1-31.2-01(5)(d). Keller v. Keller, 2017 ND 119, 894 N.W.2d 883, 2017 N.D. LEXIS 122 (N.D. 2017).

“Liberty” Defined.

The word “liberty” includes the citizen’s right to use his faculties in all lawful ways, to live and work where he will, and to contract for that purpose, and includes the right to buy and sell, to select tradesmen freely, to manufacture, to acquire property, the right of free speech and self-defense, and the opportunity to do those things which ordinarily are done by free men. State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 1943 N.D. LEXIS 92 (N.D. 1943).

Liberty Interest.

—Grandparental Visitation.

The statutory presumption created by N.D.C.C § 14-09-05.1 that grandparental visitation is in the best interests of the children violates parents’ fundamental liberty interest in controlling the persons with whom their children may associate and is void. Hoff v. Berg, 1999 ND 115, 595 N.W.2d 285, 1999 N.D. LEXIS 93 (N.D. 1999).

“Police Power” Defined.

The “police power” is that power inherent in every sovereignty to govern men and things under which the legislative assembly may, under constitutional limitations, prohibit all things hurtful to the comfort, safety, and welfare of society, and prescribe regulations that should be prescribed to promote the public health, morals, and safety, and to add to the general public convenience, prosperity, and welfare. State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 1943 N.D. LEXIS 92 (N.D. 1943).

Primary Election Law.

A primary election law must be reasonable, uniform in operation, and must apply with substantial equality to all parties and candidates. State ex rel. Dorval v. Hamilton, 20 N.D. 592, 129 N.W. 916, 1910 N.D. LEXIS 132 (N.D. 1910).

Prohibition Law.

A law prohibiting the sale of liquor which is not intoxicating nor otherwise harmful but which cultivates and stimulates an appetite for intoxicants, is a valid exercise of the police power. State v. Fargo Bottling Works Co., 19 N.D. 396, 124 N.W. 387, 1910 N.D. LEXIS 2 (N.D. 1910).

The prohibition statute cannot put any legislative restraint on the natural right of any man to import and keep liquor for his own use. Blumardt v. McDonald, 36 N.D. 518, 162 N.W. 409, 1917 N.D. LEXIS 190 (N.D. 1917).

The right to “bootleg” intoxicants is not an inherent right essential to life, liberty, and happiness. State ex rel. Germain v. Ross, 39 N.D. 630, 170 N.W. 121, 1918 N.D. LEXIS 62 (N.D. 1918).

Property Rights.

—Regulation of Oil and Gas Operations.

The police powers of the state are properly exercised when the industrial commission orders spacing or compels pooling of oil and gas operations under N.D.C.C § 38-08-08, and the property law of trespass is necessarily superseded and does not affect those authorized operations. Continental Resources v. Farrar Oil Co., 1997 ND 31, 559 N.W.2d 841, 1997 N.D. LEXIS 30 (N.D. 1997).

Public Utilities Commission.

A public utilities act which provides for the appointment of a commission to pass upon certain matters regarding a public service corporation, where there is an appeal from the commission’s findings to the courts, does not violate this section of the Constitution. State ex rel. Hughes v. Milhollan, 50 N.D. 184, 195 N.W. 292, 1923 N.D. LEXIS 87 (N.D. 1923).

Public Welfare.

A statute requiring motorcycle operators and passengers to wear crash helmets was not unconstitutional on theory that it affected only operator’s or passenger’s welfare and not the public welfare. State v. Odegaard, 165 N.W.2d 677, 1969 N.D. LEXIS 116 (N.D. 1969).

“Pursuit of Happiness” Defined.

“Pursuit of happiness” comprises personal freedom, exemption from oppression, and the right to choose an occupation and liberty of conscience, and to devote the mental and physical powers to attain happiness without restriction except as necessary to secure the equal rights of others. State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 1943 N.D. LEXIS 92 (N.D. 1943).

Regulation of Business and Professions.

—Architects.

A statute providing for the registration of licensed architects does not abridge the right of a professional architect to continue to practice his profession as an unlicensed architect. State v. Gillespie, 39 N.D. 512, 168 N.W. 38, 1918 N.D. LEXIS 50 (N.D. 1918).

—Banking.

A statute prohibiting individuals from carrying on a banking business in their private capacity does not violate this section of the Constitution. State ex rel. Goodsill v. Woodmanse, 1 N.D. 246, 46 N.W. 970, 1890 N.D. LEXIS 31 (N.D. 1890).

The state banking law is a proper exercise by the assembly of that branch of the internal police power of the state which relates to the public safety. State ex rel. Goodsill v. Woodmanse, 1 N.D. 246, 46 N.W. 970, 1890 N.D. LEXIS 31 (N.D. 1890).

—Business Corporations.

Corporate farming law does not violate this section. Coal Harbor Stock Farm, Inc. v. Meier, 191 N.W.2d 583 (N.D. 1971).

—Dairies.

The natural right to engage in a lawful business is subject to reasonable police regulations, and the requirement of a license in conducting a dairy business is constitutional. Cofman v. Ousterhous, 40 N.D. 390, 168 N.W. 826, 1918 N.D. LEXIS 91 (N.D. 1918).

—Farm Machinery Sales.

Chapter 238, S.L. 1919, which fixed the time and warranty in a contract for the sale of farm machinery, did not conflict with this section of the Constitution, it not being an arbitrary or unreasonable classification. BRATBERG v. ADVANCE-RUMELY THRESHER CO., 61 N.D. 452, 238 N.W. 552, 1931 N.D. LEXIS 298 (N.D. 1931); Hamman v. Advance-Rumely Thresher Co., 61 N.D. 505, 238 N.W. 700, 1931 N.D. LEXIS 300 (N.D. 1931).

—Photographers.

Chapter 188, S.L. 1939, which defined and regulated the practice of professional photography, was not a proper exercise of the police power and violated the constitutional provision declaring “liberty” and “pursuit of happiness” to be inalienable rights prohibiting the deprivation of property without due process of law. State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 1943 N.D. LEXIS 92 (N.D. 1943).

—Railroads.

A law requiring all carriers of livestock to transport stock at a minimum speed of twenty miles an hour is an unreasonable exercise of the police power. Downey v. Northern Pac. Ry., 19 N.D. 621, 125 N.W. 475, 1910 N.D. LEXIS 24 (N.D. 1910).

Right to Contract.

The constitution guarantees the free and untrammeled right to make a lawful contract, and a contract between a landlord and tenant reserving title to all crops in the landlord will be upheld. Merchants' State Bank v. Sawyer Farmers' Coop. Ass'n, 47 N.D. 375, 182 N.W. 263, 1921 N.D. LEXIS 105 (N.D. 1921).

Search Warrant.

Where defendant was named in the search warrant but was not present when police searched trailer for illegal drugs, and therefore, he was not searched, defendant did not have standing to challenge the search under N.D.R.Crim.P. 41(d) nor under the “reputation” clause of this section. State v. Benjamin, 417 N.W.2d 838, 1988 N.D. LEXIS 9 (N.D. 1988).

Special Assessments.

Special assessments must conform to statutory as well as constitutional standards. Northern Pac. Ry. v. Grand Forks, 73 N.W.2d 348, 1955 N.D. LEXIS 153 (N.D. 1955).

Violation of Due Process Clause.

The due process of law clause of the state Constitution must be considered with the constitutional provision defining the inherent rights of men, and there cannot be a violation of the latter unless there is also a violation of the former. State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 1943 N.D. LEXIS 92 (N.D. 1943).

Constitutional Law 82-87.

16A Am. Jur. 2d, Constitutional Law, §§ 385, 388-392, 560-580.

Collateral References.

Validity, construction, and application of statutes or regulations concerning recreational or social activities of pupils of public schools, 10 A.L.R.3d 389.

What amounts to “control” under state statute making it illegal for felon to have possession or control of firearm or other dangerous weapon, 66 A.L.R.4th 1240.

Implied cause of action for damages for violation of provisions of state constitutions, 75 A.L.R.5th 619.

Construction and Application of United States Supreme Court Holdings in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) and McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) Respecting Second Amendment Right to Keep and Bear Arms, to State or Local Laws Regulating Firearms or Other Weapons. 64 A.L.R.6th 131.

Validity of state gun control legislation under state constitutional provisions securing right to bear arms — Convicted felons. 85 A.L.R.6th 641.

Construction and Application of United States Supreme Court Holding in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), That Second Amendment Confers Individual Right to Keep and Bear Arms to Federal Statutes Regulating Firearms and Other Weapons or Devices. 56 A.L.R. Fed 2d 1.

Law Reviews.

An Introduction to North Dakota Constitutional Law: Content and Methods of Interpretation, 63 N.D. L. Rev. 157 (1987).

Summary of significant decisions rendered by North Dakota Supreme Court in 1988 relating to state constitutional law, 64 N.D. L. Rev. 226 (1988).

Sources of the 1889 North Dakota Constitution, 65 N.D. L. Rev. 331 (1989).

Digging for Roots: The North Dakota Constitution and the Thayer Correspondence, 65 N.D. L. Rev. 343 (1989).

The Thayer Correspondence Introductory Note, 65 N.D. L. Rev. 383 (1989).

Model Constitution (Peddrick Draft #2, 1889) Introductory Note, 65 N.D. L. Rev. 415 (1989).

The Constitution Is What the Judges Say It Is, 65 N.D. L. Rev. 491 (1989).

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to constitutional law, 66 N.D. L. Rev. 783 (1990).

In General.

Sovereignty inheres in the people. State ex rel. Miller v. Taylor, 22 N.D. 362, 133 N.W. 1046, 1911 N.D. LEXIS 64 (N.D. 1911).

The will of the people, as expressed in a statute by the assembly or an initiated measure, is the supreme law of the state, and can be declared invalid only when it contravenes the state or the United States Constitution. Daly v. Beery, 45 N.D. 287, 178 N.W. 104, 1920 N.D. LEXIS 132 (N.D. 1920).

Constitution Determined by People.

Unless limited by some provision of the federal Constitution, or self-limited by provisions in the state Constitution, the people of the state are supreme in determining what their constitution shall be. Larkin v. Gronna, 69 N.D. 234, 285 N.W. 59, 1939 N.D. LEXIS 147 (N.D. 1939).

Delegation of Powers.

The people may delegate what power they deem best and they may repossess themselves, wholly or partly, of a delegated power, by a consent of the majority of all the people. State ex rel. Twichell v. Hall, 44 N.D. 459, 171 N.W. 213, 1918 N.D. LEXIS 177 (N.D. 1918).

Exemption Law.

An exemption of a benefit provided by a fraternal beneficiary society from attachment or garnishment does not violate this section of the Constitution. Brown v. Steckler, 40 N.D. 113, 168 N.W. 670, 1918 N.D. LEXIS 80 (N.D. 1918).

Incorporation of Village.

Consistent with this section, in the organization of villages, the inhabitants of the territory affected are clothed with the right to say whether there shall be an incorporation and what territory shall be included therein. State ex rel. Brunette v. Sutton, 71 N.D. 530, 3 N.W.2d 106, 1942 N.D. LEXIS 87 (N.D. 1942).

Nature of Constitution.

The state Constitution, unlike the federal, is an instrument of limitations rather than grants; under it, the state legislature has plenary powers, except as limited by its provisions or by the federal Constitution or Acts of Congress. State ex rel. Agnew v. Schneider, 253 N.W.2d 184, 1977 N.D. LEXIS 259 (N.D. 1977).

Not Free Speech Guarantee.

Retail corporation was granted summary judgment as to an individual’s N.D. Const. art. I, § 2 claim, which the individual asserted after he was denied permission to enter onto one of the corporation’s retail store properties in order to procure signatures on a political petition because: (1) § 2 merely guaranteed that North Dakota would offer a republican form of government to its citizens; (2) it had never been interpreted by the state courts as guaranteeing a right to petition on private property; and (3) the court would not extend the interpretation of § 2 beyond the historic interpretation that it had previously been given. Riemers v. Super Target, 363 F. Supp. 2d 1182, 2005 U.S. Dist. LEXIS 4148 (D.N.D. 2005).

Separation of Powers.

The executive, legislative, and judicial departments are public servants which must exercise their powers in the manner provided by the Constitution. State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N.W. 561, 1916 N.D. LEXIS 71 (N.D. 1916), writ of error dismissed, 245 U.S. 627, 38 S. Ct. 60, 62 L. Ed. 518, 1917 U.S. LEXIS 1797 (U.S. 1917).

Collateral References.

16A C.J.S. Constitutional Law, §§ 629-634, 636-644.

Divorce.

Assumption of jurisdiction by state court in a divorce action did not infringe upon party’s religious freedom contrary to the first amendment of the United States Constitution or this section. Martian v. Martian, 328 N.W.2d 844, 1983 N.D. LEXIS 226 (N.D. 1983).

No Civil Jurisdiction in Religious Questions.

By this section the civil authorities are denied the right to control or in any manner interfere, in purely ecclesiastical matters. Bendewald v. Ley, 39 N.D. 272, 168 N.W. 693, 1917 N.D. LEXIS 153 (N.D. 1917).

Right to Receive Religious Ministry.

In action by attorney general alleging violations of N.D.C.C ch. 13-07 and seeking dissolution of non-profit corporations, party who claimed his right to receive religious ministry could be impaired as a result of that action would be permitted to intervene as a defendant, where intervener had potentially different interests from other defendants, and the resources of those defendants to defend the action was impaired by the appointment of a receiver to manage and operate the corporations. State ex rel. Heitkamp v. Family Life Servs., 1997 ND 37, 560 N.W.2d 526, 1997 N.D. LEXIS 32 (N.D. 1997).

Schools.

Parents violated the compulsory school attendance law, former N.D.C.C ch. 15-34.1 (now N.D.C.C ch. 15.1-20), where they sent their children to a nonapproved church school because of claim that it would violate their religious beliefs to send their children to teachers who submitted themselves to the state certification process and to a school which submitted itself to approval by the county superintendent of schools and the superintendent of public instruction, conditions required by the compulsory school attendance law; the compulsory school attendance law, as applied to the parents, did not unduly impinge upon parent’s right to the free exercise of religion since the state constitutional mandate for the provision of schools and education, N.D. Const. art. VIII, established a compelling interest by the state in the education of its people, with teacher certification being an acceptable method of satisfying part of that mandate, and the resulting strain or imposition on the parent’s religious beliefs by the compulsory school attendance law was outbalanced by the state’s compelling interest in the education of its people. State v. Rivinius, 328 N.W.2d 220, 1982 N.D. LEXIS 403 (N.D. 1982), cert. denied, 460 U.S. 1070, 103 S. Ct. 1525, 75 L. Ed. 2d 948, 1983 U.S. LEXIS 3796 (U.S. 1983).

Sunday Law.

An act making it unlawful to run or permit the running of a theater on Sunday does not interfere with religious liberty and is valid under the police power. State ex rel. Temple v. Barnes, 22 N.D. 18, 132 N.W. 215, 1911 N.D. LEXIS 1 (N.D. 1911).

Store owner who alleged only economic injury in contesting constitutionality of city ordinance providing for Sunday closing lacked standing to raise contention that an exception which favored persons observing another Sabbath prohibits free exercise of religion. City of Bismarck v. Materi, 177 N.W.2d 530, 1970 N.D. LEXIS 118 (N.D. 1970).

Collateral References.

Constitutional Law 84.

16A Am. Jur. 2d, Constitutional Law, §§ 415-449.

16A C.J.S. Constitutional Law, §§ 750-777, 787.

Releasing public school pupils from attendance for purposes of receiving religious instruction, 2 A.L.R.2d 1371.

Public regulation and prohibition of sound amplifiers or loud-speaker broadcasts in streets and other public places as infringement of religious freedom, 10 A.L.R.2d 627.

Violation of freedom of religion by municipal ordinance prohibiting house to house soliciting and peddling without invitation, 35 A.L.R.2d 367.

Statute, ordinance, or other measure involving chemical treatment of public water supply as interference with religious freedom, 43 A.L.R.2d 453.

Constitutional provisions as affecting provisions of will or deed prohibiting, penalizing, or requiring marriage to one of a particular religious faith, 50 A.L.R.2d 749.

Wearing of religious garb by public schoolteachers, 60 A.L.R.2d 300.

Use of public school premises for religious purposes during nonschool time, 79 A.L.R.2d 1148.

Public payment of tuition, scholarship, or the like, as respects sectarian school, 81 A.L.R.2d 1309.

Furnishing free textbooks to sectarian school or student therein, 93 A.L.R.2d 986.

Erection, maintenance, or display of religious structures or symbols on public property as violation of religious freedom, 36 A.L.R.3d 1256.

Constitutionality, under state constitutional provision forbidding financial aid to religious sects, of public provision of schoolbus service for private school pupils, 41 A.L.R.3d 344.

Free exercise of religion as applied to individual’s objection to obtaining or disclosing social security number, 93 A.L.R.5th 1.

Wearing of Religious Symbols in Courtroom as Protected by First Amendment. 18 A.L.R.6th 775.

Constitutionality of Legislative Prayer Practices. 30 A.L.R.6th 459.

Validity, Construction, and Application of Exclusion or Inclusion of Religious Uses/Places of Worship in Single-Family Residential Zoning Districts, 31 A.L.R.6th 395.

Application of First Amendment’s “Ministerial Exception” or “Ecclesiastical Exception” to State Civil Rights Claims. 53 A.L.R.6th 569.

Constitutionality of regulation or policy governing prayer, meditation, or “moment of silence” in public schools, 110 A.L.R. Fed. 211.

Bible distribution or use in public schools—modern cases, 111 A.L.R. Fed. 121.

First amendment challenges to display of religious symbols on public property, 107 A.L.R.5th 1.

Landlord’s refusal to rent to unmarried couple as protected by landlord’s religious beliefs, 10 A.L.R.6th 513.

Law Reviews.

Justice Potter Stewart: A Contemporary Jurist’s View of Religious Liberty, 59 N.D. L. Rev. 183 (1983).

Criminal Law — Review: Exercising Jurisdiction to Prosecute a Priest for Theft is Constitutional, State v. Burkhard, 1998 N.D. 121, 579 N.W.2d 194 (1998), 75 N.D. L. Rev. 587 (1999).

In General.

Every man has a right to speak, write, and publish his opinion freely on all subjects, but he is responsible for an abuse of the right. Englund v. Townley, 43 N.D. 118, 174 N.W. 755, 1919 N.D. LEXIS 27 (N.D. 1919).

Adult Entertainment Establishments.

City ordinances that prohibited business that served alcohol from also offering adult entertainment, and allowed adult entertainment establishments to operate only in certain zoned areas did not violate the bars’ First Amendment right to free speech, and therefore the city was properly granted summary judgment, because: (1) the city was regulating under a legitimate governmental power; (2) the ordinances did not completely eliminate adult entertainment; (3) the ordinances were aimed at combating the negative secondary effects caused by adult entertainment establishments rather than at the suppression of expression; (4) the ordinances served a substantial government interest; and (5) the ordinances were not overbroad and were narrowly tailored, as they were focused on the four walls of the barroom, and the detailed findings on the adverse secondary effects of adult establishments supported a broad disclosure requirement beyond obscenity-related criminal offenses. McCrothers Corp. v. City of Mandan, 2007 ND 28, 728 N.W.2d 124, 2007 N.D. LEXIS 21 (N.D. 2007).

Conduct Not Protected.

Defendants’ conduct underlying the conviction was not constitutionally protected activity under N.D.C.C. § 12.1-31-01(2) as the multiple attempts to flank law enforcement and move toward construction equipment on private property after being directed to leave was not protected speech merely because it occurred at a protest or was accompanied by carried signs or speaking for a cause. State v. Simon, 2018 ND 197, 916 N.W.2d 626, 2018 N.D. LEXIS 214 (N.D. 2018).

Defamation Actions.

—Damages for Libel Per Se.

In an action against a newspaper for publishing an article libelous per se, the party injured may be awarded general, special and exemplary damages. Meyerle v. Pioneer Publishing Co., 45 N.D. 568, 178 N.W. 792, 1920 N.D. LEXIS 161 (N.D. 1920).

—General Verdict.

This section merely vests in a jury the right to render a general verdict in a libel case, and to determine the law as in other cases where a general verdict is returned. State v. Tolley, 23 N.D. 284, 136 N.W. 784, 1912 N.D. LEXIS 94 (N.D. 1912).

—Jury Question.

If there is any doubt as to the meaning of a publication claimed to be libelous, or if such publication is reasonably susceptible of two constructions, one innocent and the other libelous, then it is a question for the jury which construction is the proper one. McCue v. Equity Coop. Publishing Co., 39 N.D. 190, 167 N.W. 225, 1918 N.D. LEXIS 23 (N.D. 1918).

—Limited Purpose Public Figure.

Grant of summary judgment in favor of a writer in a initiative drafter’s defamation action was appropriate because the drafter was at least a limited purpose public figure and he needed to present clear and convincing evidence that the writer’s statements were false and made with actual malice, which he failed to do. It was therefore presumed that the evidence did not exist. Riemers v. Mahar, 2008 ND 95, 748 N.W.2d 714, 2008 N.D. LEXIS 94 (N.D. 2008).

Governmental Regulation.

Government regulation which only incidentally restricts speech, is valid if four criteria are met: 1. The regulation is within the constitutional power of the state; 2. It furthers an important or substantial governmental interest; 3. The governmental interest is unrelated to the suppression of free expression; 4. The incidental restriction on alleged first amendment freedoms is no greater than is essential to the furtherance of that interest. State v. Niska, 380 N.W.2d 646, 1986 N.D. LEXIS 250 (N.D. 1986).

Picketing by Striking Public Employees.

Permanent restraining order enjoining teachers as public employees from either striking or picketing was not denial or infringement of constitutional right under this section. State v. Heath, 177 N.W.2d 751, 1970 N.D. LEXIS 116 (N.D. 1970).

Private Property.

Retail corporation was granted summary judgment as to an individual’s N.D. Const. art. I, § 4 claim, which the individual asserted after he was denied permission to enter onto one of the corporation’s retail store properties in order to procure signatures on a political petition because: (1) N.D. Const. art. I, § 4 coexisted with U.S. Const. amend. I and did not extend the rights of citizens beyond those protected under amend. I; (2) N.D. Const. art. I, § 4 guaranteed the rights of North Dakota citizens against government action but had no application with regard to the actions of private citizens; and (3) N.D. Const. art. I, § 4 did not give the individual a right to enter onto the corporation’s private property in order to exercise his constitutionally guaranteed free speech rights. Riemers v. Super Target, 363 F. Supp. 2d 1182, 2005 U.S. Dist. LEXIS 4148 (D.N.D. 2005).

Special Verdict.

This section does not create a fundamental right in a special verdict. State v. Bartkowski, 290 N.W.2d 218, 1980 N.D. LEXIS 191 (N.D. 1980).

Speech as Conduct.

Defendant’s conviction for luring a minor by computer under N.D.C.C. § 12.1-20-05.1 did not violate this section because it was premised on criminalizing “luring” conduct and was a preemptive strike against sexual abuse of children by creating criminal liability for conduct directed toward the ultimate acts of abuse. State v. Backlund, 2003 ND 184, 627 N.W.2d 431 (2003).

Collateral References.

Constitutional Law 90.

16A Am. Jur. 2d, Constitutional Law, §§ 450-530.

16B C.J.S. Constitutional Law, §§ 789-889, 900-970.

Expectation of privacy in and discovery of social networking web site postings and communications, 88 A.L.R.6th 319.

Right of owner of housing development or apartment houses to restrict canvassing, peddling, solicitation of contributions, etc., 3 A.L.R.2d 1431.

Public regulation and prohibition of sound amplifiers or loud-speakers broadcasts in streets and other public places, 10 A.L.R.2d 627.

Validity of statute limiting damages recoverable for defamation, 13 A.L.R.2d 277.

Validity of public utility antistrike laws and regulations, 22 A.L.R.2d 894.

Validity of statutes regulating or prohibiting coercive action by labor unions in jurisdictional disputes, 33 A.L.R.2d 340.

Libel and slander: defamation by question, 53 A.L.R.4th 450.

Intrusion by news-gathering entity as invasion of right of privacy, 69 A.L.R.4th 1059.

Validity of regulation by public-school authorities as to clothes or personal appearance of pupils, 58 A.L.R.5th 1.

First Amendment protection afforded to commercial and home video games, 106 A.L.R.5th 337.

First Amendment protection afforded to comic books, comic strips, and cartoons, 118 A.L.R.5th 213.

Construction and Application of Federal and State Constitutional and Statutory Speech or Debate Provisions. 24 A.L.R.6th 255.

First Amendment Protection Afforded to Web Site Operators. 30 A.L.R.6th 299.

First Amendment Protection Afforded to Blogs and Bloggers, 35 A.L.R.6th 407.

When Does Use of Taser Constitute Violation of Constitutional Rights. 45 A.L.R.6th 1.

Validity of Restrictions Imposed during National Political Conventions Impinging upon Rights to Freedom of Speech and Assembly under First Amendment. 46 A.L.R.6th 465.

Restrictive Covenants or Homeowners’ Association Regulations Restricting or Prohibiting Flags, Signage, or the Like on Homeowner’s Property as Restraint on Free Speech. 51 A.L.R.6th 533.

When Does Use of Pepper Spray, Mace, or Other Similar Chemical Irritants Constitute Violation of Constitutional Rights. 65 A.L.R.6th 93.

Constitutionality of Restricting Public Speech in Street, Sidewalk, Park, or Other Public Forum — Characteristics of Forum. 70 A.L.R.6th 513.

Constitutionality of Restricting Public Speech in Street, Sidewalk, Park, or Other Public Forum — Manner of Restriction. 71 A.L.R.6th 471.

Constitutional Challenges to Compelled Speech — General Principles. 72 A.L.R.6th 513.

Constitutional Challenges to Compelled Speech — Particular Situations or Circumstances. 73 A.L.R.6th 281.

Application of First Amendment in School Context — Supreme Court Cases. 57 A.L.R. Fed. 2d 1.

Law Reviews.

For Case Comment: Constitutional Law — Freedom of Speech, Expression: Protecting Main Street? The North Dakota Supreme Court Analyzes Whether an Ordinance Regulating Exotic Dancing and Adult Entertainment Violates Free Speech and Constitutes a Regulatory Taking (McCrothers Corp. v. City Of Mandan, 2007 ND 28, 728 N.W.2d 124), see 84 N.D.L.Rev. 495 (2008).

Case Comment: Constitutional Law — Elections: Citizens Divided: Balancing the First Amendment Right to Free Speech and the Role Of Private Corporations in Our Nation’s Elections: Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), see 86 N.D. L. Rev. 619 (2010).

Petition for Severance from City.

The enactment of a general law giving the owner of farm land the right to petition the city council to disconnect the same from the city is within the authority of the assembly. Enderson v. Hildenbrand, 52 N.D. 533, 204 N.W. 356, 1925 N.D. LEXIS 134 (N.D. 1925).

Picketing by Striking Public Employees.

Permanent restraining order enjoining teachers as public employees from either striking or picketing was not denial or infringement of constitutional right under this section. State v. Heath, 177 N.W.2d 751, 1970 N.D. LEXIS 116 (N.D. 1970).

Private Property.

Retail corporation was granted summary judgment as to an individual’s N.D. Const. art. I, § 5 claim, which the individual asserted after he was denied permission to enter onto one of the corporation’s retail store properties in order to procure signatures on a political petition because: (1) N.D. Const. art. I, § 5 coexisted with U.S. Const. amend. I and did not extend the rights of citizens beyond those protected under amend. I; (2) N.D. Const. art. I, § 5 guaranteed the rights of North Dakota citizens against government action but had no application with regard to the actions of private citizens; and (3) N.D. Const. art. I, § 5 did not give the individual a right to enter onto the corporation’s private property in order to exercise his constitutionally guaranteed assembly and petition rights. Riemers v. Super Target, 363 F. Supp. 2d 1182, 2005 U.S. Dist. LEXIS 4148 (D.N.D. 2005).

Collateral References.

Constitutional Law 91.

16A Am. Jur. 2d, Constitutional Law, §§ 531-538.

16B C.J.S. Constitutional Law, §§ 973-984.

Validity, under state constitutions, of private shopping center’s prohibition or regulation of political, social, or religious expression or activity, 38 A.L.R.4th 1219.

When Does Use of Pepper Spray, Mace, or Other Similar Chemical Irritants Constitute Violation of Constitutional Rights. 65 A.L.R.6th 93.

Validity of Restrictions Imposed during National Political Conventions Impinging upon Rights to Freedom of Speech and Assembly under First Amendment. 46 A.L.R.6th 465. When Does Use of Pepper Spray, Mace, or Other Similar Chemical Irritants Constitute Violation of Constitutional Rights. 65 A.L.R.6th 93.

In General.

This section of the Constitution is for the benefit of citizens only. Gottschalck v. Shepperd, 65 N.D. 544, 260 N.W. 573, 1935 N.D. LEXIS 139 (N.D. 1935).

Contracts.

Where, upon the dissolution of a partnership, one of the partners was paid an agreed amount of cash in consideration of his promise “not to engage for the next two years” in the same business in the same city, the contract was construed to be legal and enforceable and such construction did not violate this section of the Constitution. Siegel v. Marcus, 18 N.D. 214, 119 N.W. 358, 1909 N.D. LEXIS 1 (N.D. 1909).

Picketing for Union Shop.

Where the purpose of picketing was to force plaintiffs to establish a union shop which would result in making the employees join the union whether they wanted to or not or lose their employment, the picketing was illegal and could be enjoined. Minor v. Building & Constr. Trades Council, 75 N.W.2d 139, 1956 N.D. LEXIS 96 (N.D. 1956).

Collateral References.

Constitutional Law 88.

16A C.J.S. Constitutional Law, §§ 725-727, 729-742.

Liability for procuring breach of contract, 26 A.L.R.2d 1227.

Rights and remedies of workmen blacklisted by labor union, 46 A.L.R.2d 1124.

Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.

Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.

I. Searches and Seizures, Generally.

Arrest Warrant.

North Dakota Supreme Court agrees with other courts that a warrant supported by probable cause, regardless of whether it is a felony or misdemeanor warrant, provides a law officer authority to enter the residence of the person named in the warrant in order to execute the warrant. Therefore, a motion to suppress was improperly granted based on the entry into a residence to serve a misdemeanor warrant; consent was not required for entry. State v. Schmidt, 2015 ND 134, 864 N.W.2d 265, 2015 N.D. LEXIS 132 (N.D. 2015).

Construction of Clause.

Where defendant failed to provide arguments based on state constitution aside from bare assertions that a search violated this section, supreme court declined to adopt a more “expansive view” of the protections afforded under the North Dakota Constitution than of those afforded under the U.S. Constitution. State v. Kunkel, 455 N.W.2d 208, 1990 N.D. LEXIS 102 (N.D. 1990).

There are three basic premises in search and seizure cases: (1) all searches made without a valid search warrant are unreasonable unless shown to come within one of the exceptions to the rule requiring warrants; (2) where there is an allegation of an illegal search, the state bears the burden of proving its validity; and (3) by virtue of the decision in Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 16 Ohio Op. 2d 384, 84 A.L.R.2d 933, evidence obtained in violation of the Fourth Amendment is inadmissible in state courts. State v. Matthews, 216 N.W.2d 90, 1974 N.D. LEXIS 259 (N.D. 1974); State v. Stockert, 245 N.W.2d 266, 1976 N.D. LEXIS 133 (N.D. 1976); State v. Meadows, 260 N.W.2d 328, 1977 N.D. LEXIS 170 (N.D. 1977), overruled in part, State v. Zwicke, 2009 ND 129, 767 N.W.2d 869, 2009 N.D. LEXIS 128 (N.D. 2009).

Reasonable Expectation of Privacy.

—In General.

In determining whether or not a search is within the scope of the Fourth Amendment of the U.S. Constitution, the “reasonable expectation of privacy” test is to be applied. State v. Planz, 304 N.W.2d 74, 1981 N.D. LEXIS 278 (N.D. 1981).

While the state constitution may afford broader rights than those granted under an equivalent provision of the federal constitution, like the Fourth Amendment, this section is not implicated unless a reasonable expectation of privacy is invaded. State v. Rode, 456 N.W.2d 769, 1990 N.D. LEXIS 116 (N.D. 1990).

Law enforcement officer’s use of a drug-sniffing dog in a secure apartment hallway did not violate defendant’s Fourth Amendment rights against unreasonable search and seizure because there existed no generalized expectation of privacy in the common areas of an apartment building. State v. Nguyen, 2013 ND 252, 841 N.W.2d 676, 2013 N.D. LEXIS 258 (N.D. 2013).

—Commercial Premises.

Although the prohibition against unreasonable searches and seizures extends to business premises, the expectation of privacy on commercial premises is less than the expectation in an individual’s home. State v. Stewart, 2006 ND 39, 710 N.W.2d 403, 2006 N.D. LEXIS 45 (N.D. 2006).

—Entryway.

An entryway with an unlocked outer storm door and a locked inner door is an area in which there is no reasonable expectation of privacy, and is not protected by the Fourth Amendment. State v. Kitchen, 1997 ND 241, 572 N.W.2d 106, 1997 N.D. LEXIS 303 (N.D. 1997).

—Farmstead.

Evidence used to convict the first defendant and second defendant of strict liability hunting offenses due to their conduct in illegally shooting a deer on a wildlife refuge did not have to be suppressed due to the entry of a deputy sheriff and a game warden on their farmstead, which occurred without permission and without a warrant. Although the first defendant and second defendant allegedly had “no trespassing” signs posted on their property, the record did not show where those signs were located and, thus, they did not show that their reasonable expectation of privacy under the Fourth Amendment, U.S. Const. amend. IV, as applied to the states by the Fourteenth Amendment, U.S. Const. amend. XIV, and under N.D. Const. art. I, § 8 was violated. State v. Mittleider, 2011 ND 242, 809 N.W.2d 303, 2011 N.D. LEXIS 242 (N.D. 2011).

—Garage.

It is well settled that a garage is an intimate part of a person’s residence and, therefore, is an area in which the person has a reasonable expectation of privacy against warrantless intrusions by the state. State v. Blumler, 458 N.W.2d 300, 1990 N.D. LEXIS 130 (N.D. 1990).

—Garbage Searches.

Garbage searches did not violate this section; by placing her garbage on or against the public alley, where it was exposed to the general public, and with the express purpose of abandoning it to the trash collector, defendant waived any privacy interest she may have had in the garbage. State v. Rydberg, 519 N.W.2d 306, 1994 N.D. LEXIS 163 (N.D. 1994).

This section of the North Dakota Constitution may provide greater protection than the Fourth Amendment of the United States Constitution in some instances, but the North Dakota Constitution does not provide any more protection than that afforded by the United States Constitution when there is no objectively reasonable expectation of privacy, and defendant had no reasonable expectation of privacy in his garbage set out for collection. State v. Carriere, 545 N.W.2d 773, 1996 N.D. LEXIS 104 (N.D. 1996).

Any expectation of privacy in garbage is waived when the items are placed into garbage cans as trash, intended to be picked up by garbage collectors, and the cans are placed in an area where unknown garbage collectors could pick them up and where other unknown people could rummage through the cans. State v. Herrick, 1997 ND 155, 567 N.W.2d 336, 1997 N.D. LEXIS 174 (N.D. 1997).

After excising tainted evidence, a search warrant was supported by probable cause where police searched defendant’s garbage and found burned tin foil consistent with methamphetamine use and a cut up hanger with the strong smell of marijuana. State v. Fields, 2005 ND 15, 691 N.W.2d 233, 2005 N.D. LEXIS 23 (N.D. 2005).

Under the current rule in North Dakota and federal courts, defendant lost his expectation of privacy when he placed the trash for collection on the sidewalk in front of his house, and therefore the garbage search fell outside the protections of the Fourth Amendment and N.D. Const. art. 1, § 8. State v. Schmalz, 2008 ND 27, 744 N.W.2d 734, 2008 N.D. LEXIS 20 (N.D. 2008).

Warrantless search of a defendant’s trash was not a violation of defendant’s right to be free from unreasonable searches and seizures under U.S. Const. amend. IV and N.D. Const. art. I, § 8 because defendant did not have a reasonable expectation of privacy therein as the trash was placed next to the street on a berm next to a mailbox for normal collection. State v. Sorenson, 2009 ND 147, 770 N.W.2d 701, 2009 N.D. LEXIS 150 (N.D. 2009).

—Hotel Room.

Once defendant was evicted from a hotel, the hotel room defendant had been staying in reverted to the control of the hotel management, defendant no longer had a privacy interest in the hotel room, and the hotel manager could consent to police officers entering the room to remove defendant's belongings. The officers' entry and search of the hotel room was not unreasonable and did not violate defendant's constitutional rights. State v. Williams, 2016 ND 132, 881 N.W.2d 618, 2016 N.D. LEXIS 142 (N.D. 2016).

—Prisoner Telephone Communications.

Jailer’s monitoring of prisoner’s conversation on jail telephone without a warrant or prior notice to the persons conversing violated neither this section nor the fourth amendment to the United States Constitution where jail personnel had not used deceptive means to lull the prisoner in an expectation of privacy; and evidence thus obtained could be used to establish probable cause for a search warrant for the property of the person with whom the prisoner conversed. State v. Fischer, 270 N.W.2d 345, 1978 N.D. LEXIS 145 (N.D. 1978). But see, State v. Klodt, 298 N.W.2d 783, 1980 N.D. LEXIS 338 (N.D. 1980).

—Telephone Company Records.

Defendant did not have any expectation of privacy in telephone company’s records which indicated what calls defendant had made; therefore, defendant could not complain of the state’s lack of a search warrant in obtaining such records. State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

—Trespasser.

District court did not err in denying defendant’s motion to suppress because defendant did not have a reasonable expectation of privacy in his girlfriend’s apartment after he became aware the property manager legitimately forbid him from being on the property, when the girlfriend was renting an apartment from the county housing authority, and the property manager sent the police a “no trespass” order indicating defendant was not allowed on the property, including the girlfriend’s apartment. State v. Oien, 2006 ND 138, 717 N.W.2d 593, 2006 N.D. LEXIS 142 (N.D. 2006).

—Unattended Vehicle.

Where defendant left contraband on the front seat of an unattended car, which had the windows rolled down and was parked in a public parking lot, and the contraband was in view without having to enter the car, there was no reasonable expectation of privacy concerning the contraband, and police officer’s discovery of the contraband under such circumstances did not constitute a search within the meaning of the Fourth Amendment of the federal Constitution; and, where the contraband gave police officer probable cause to arrest, warrantless seizure of the contraband did not violate constitutional search and seizure protections. State v. Planz, 304 N.W.2d 74, 1981 N.D. LEXIS 278 (N.D. 1981).

—Undeliverable Packages.

Where, pursuant to company policy regarding undeliverable packages, contents of package were examined by private delivery company and subsequently taken to law enforcement agents for testing, the warrantless testing of the suspected contraband did not constitute a search and did not violate this section, as no reasonable privacy interest was implicated. State v. Rode, 456 N.W.2d 769, 1990 N.D. LEXIS 116 (N.D. 1990).

Searches.

—What Constitutes.

The extraction of a blood sample to determine blood-alcohol content is a search within the meaning of the Fourth Amendment of the United States Constitution.State v. Abrahamson, 328 N.W.2d 213, 1982 N.D. LEXIS 391 (N.D. 1982).

Seizures.

—In General.

An officer’s approach to a parked vehicle is not a seizure if the officer inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response. City of Fargo v. Sivertson, 1997 ND 204, 571 N.W.2d 137, 1997 N.D. LEXIS 262 (N.D. 1997).

—What Constitutes.

Fourth Amendment stop or seizure does not occur whenever a law enforcement officer taps on a window of a parked motor vehicle. Richter v. N.D. DOT, 2010 ND 150, 786 N.W.2d 716, 2010 N.D. LEXIS 157 (N.D. 2010) (Overruling Wibben v. North Dakota State Highway Comm’r, 413 N.W.2d 329 (N.D. 1987) to the extent inconsistent).

No Fourth Amendment seizure occurred when an officer approached a parked vehicle and used a nonverbal hand gesture to communicate with the passenger that she should roll down her window. Richter v. N.D. DOT, 2010 ND 150, 786 N.W.2d 716, 2010 N.D. LEXIS 157 (N.D. 2010).

Statement law enforcement officers were investigating drug activity, the request for identification, the lack of a traffic stop, the denied consent to search followed by the assertion a K-9 unit would be called, and defendant’s response the K-9 would not be necessary, were sufficient for defendant to satisfy his burden to provide a prima facie evidence he had been seized. State v. Casson, 2019 ND 216, 932 N.W.2d 380, 2019 N.D. LEXIS 222 (N.D. 2019).

Defendant’s motion to suppress was properly denied because defendant was not seized when a trainee deputy asked that defendant roll down her window as the district court did not err in finding that the initial contact was done by law enforcement in the role of community caretaker. State v. Foote, 2020 ND 266, 952 N.W.2d 37, 2020 N.D. LEXIS 265 (N.D. 2020).

Defendant’s motion to suppress was properly denied as a deputy’s request that defendant exit her vehicle and return to the patrol vehicle with him did not constitute a second unconstitutional seizure because the deputy requested defendant exit the vehicle and defendant provided no indication she was ordered, compelled, or otherwise intimidated into leaving her vehicle and going to the patrol vehicle. State v. Foote, 2020 ND 266, 952 N.W.2d 37, 2020 N.D. LEXIS 265 (N.D. 2020).

Waiver of Rights.

This constitutional provision was designed for the protection of the person sought to be arrested, and he may waive its protection. State ex rel. Poul v. McLain, 13 N.D. 368, 102 N.W. 407, 1905 N.D. LEXIS 5 (N.D. 1905); State v. Hart, 30 N.D. 368, 152 N.W. 672, 1915 N.D. LEXIS 129 (N.D. 1915).

II. Search Warrants.

—In general.

Defendant’s second motion to suppress was properly denied as there was probable cause that defendant was in possession of certain materials prohibited as the affidavit accompanying the search warrant described an image displayed on the computer of a prepubescent female in a body of water wearing underwear and a wet shirt exposing the child’s nipples and areolas through her shirt. State v. Black, 2021 ND 103, 960 N.W.2d 820, 2021 N.D. LEXIS 97 (N.D. 2021).

Affidavit on Information and Belief.

An affidavit made upon information and belief and not otherwise corroborated, does not state or show the facts required for the issuance of a warrant to abate a liquor nuisance. State ex rel. Register v. McGahey, 12 N.D. 535, 97 N.W. 865, 1904 N.D. LEXIS 1 (N.D. 1904).

A criminal complaint wherein the facts constituting the crime charged are stated upon the information and belief only of the complaining witness is not sufficient to justify the issuance of a warrant of arrest. State ex rel. Poul v. McLain, 13 N.D. 368, 102 N.W. 407, 1905 N.D. LEXIS 5 (N.D. 1905).

Affidavit with Warrant.

The generality of a warrant cannot be cured by the specificity of the affidavit in support thereof unless the affidavit is physically connected to the warrant, and the warrant specifically refers to and incorporates the affidavit. State v. Schmitz, 474 N.W.2d 249, 1991 N.D. LEXIS 141 (N.D. 1991).

While not every factual layer in the affidavit in support of the search warrant would have warranted a person of reasonable caution to believe evidence of drug activity could be found in defendant's residence, the laminated total of all such factual layers, including that a marijuana seller went into defendant's residence after meeting with the confidential informant (CI) and then called the CI with pricing and arranged for a larger purchase, was sufficient to do so. State v. Rogahn, 2016 ND 93, 879 N.W.2d 454, 2016 N.D. LEXIS 101 (N.D. 2016).

Arrest warrant.

Defendant was not illegally seized when an officer reached over the threshold of the door into the hotel room to grab him when he was detained because a person standing in an open doorway was in a public place, and may be arrested without a warrant permitting entry. State v. Stands, 2021 ND 135, 2021 N.D. LEXIS 133 (N.D. 2021).

Based on Defective Information.

Conviction for illegal possession of narcotic drugs was reversed, where evidence was acquired through use of search warrant based on defective information charging crime of burglary. State v. Erdman, 170 N.W.2d 872, 1969 N.D. LEXIS 84 (N.D. 1969).

Civil Legal Papers.

Civil legal papers are not the equivalent of search warrants; the service of such papers does not necessarily give an officer serving them carte blanche entry into any area of a person’s residence. State v. Blumler, 458 N.W.2d 300, 1990 N.D. LEXIS 130 (N.D. 1990).

Description in Search Warrant.

A warrant issued for the search of a farm for “livestock, ear tags, and other livestock paraphernalia which was stolen”, was sufficiently specific where the officers executing the warrant enlisted the aid of the owners of the stolen calves to positively identify their calves, they searched only in the areas where the listed items were likely to be found and they seized only those cattle which were positively identified as stolen. State v. Dallmann, 441 N.W.2d 912, 1989 N.D. LEXIS 114 (N.D. 1989).

A search warrant that clearly identified that computers were to be searched for “Photographs, pictures, visual representations, or videos in any form that include sexual conduct by a minor, as defined by N.D.C.C. § 12.1-27.2-01(4)”; and a warrant that clearly set forth with particularity the type of items authorized — “photographs, pictures, visual representations, or videos in any form that include sexual conduct by a minor, as defined by N.D.C.C. § 12.1-27.2-01(1) and/or (4), or children posing for a camera” — were not overbroad. United States v. Gleich, 293 F. Supp. 2d 1082, 2003 U.S. Dist. LEXIS 21834 (D.N.D. 2003).

Search warrant which identified the property sought as “various items which I have reason to believe have been recently stolen in Williams County which are evidence of crimes recently committed” did not particularly describe the things to be seized as commanded by the federal and state constitutions, and the trial court erred in refusing to suppress evidence seized thereunder. State v. Schmitz, 474 N.W.2d 249, 1991 N.D. LEXIS 141 (N.D. 1991).

Warrant which permitted the police to search any item that could reasonably house the objects of the search, was sufficient to permit police to search defendant’s purse located in the apartment which was the subject of the search. State v. Driscoll, 2005 ND 105, 697 N.W.2d 351, 2005 N.D. LEXIS 120 (N.D. 2005).

Description of Premises.

—In General.

If there is only one building thereon, the description of premises in a search warrant as a certain lot in a certain block is sufficient. State v. Markuson, 7 N.D. 155, 73 N.W. 82, 1897 N.D. LEXIS 53 (N.D. 1897).

Omission of the word “premises” from the probable cause and command portions of a search warrant did not prohibit police from searching the defendant’s residence; the warrant included outbuildings, vehicles and the curtilage of the residence, and the omission of “premises” was a technical error. State v. Bollingberg, 2004 ND 30, 674 N.W.2d 281, 2004 N.D. LEXIS 33 (N.D. 2004).

Initial search warrant issued against defendant’s residence, but not specifying the apartment number, was valid where the detective testified under oath at the hearing for a second search warrant that the correct address was apartment number one. State v. Bergstrom, 2004 ND 48, 676 N.W.2d 83, 676 N.W.2d 98, 2004 N.D. LEXIS 61 (N.D. 2004).

—Search Beyond Scope of Warrant.

The search of a basement room in 501 10th Street West was not within the scope of the search warrant for “503 10th Street West” where 503 and 501 had their own basements, wholly separated by a wall between them, with a door that allowed access from one room to the other. A closed door did not invite unauthorized entry and mere access to 501 was insufficient to extend the reach of the warrant. State v. Erickson, 496 N.W.2d 555, 1993 N.D. LEXIS 23 (N.D. 1993).

Execution of Search Warrant.

In a drug case, a court did not err in its denial of defendant’s motion to suppress based on the presence of third parties during the execution of the search warrant because one was asked by police to aid in the execution of the warrant, and the other was not invited by police, but by the other third party. State v. Nelson, 2005 ND 11, 691 N.W.2d 218, 2005 N.D. LEXIS 9 (N.D. 2005).

The victim of a burglary may accompany law enforcement personnel in the execution of a valid search warrant in order to identify stolen property of theirs; however, the non-law enforcement personnel must, in effect, be governed by the same rules as law enforcement personnel in considering their conduct during the search. State v. Klosterman, 317 N.W.2d 796, 1982 N.D. LEXIS 258 (N.D. 1982).

Failure to List All Affiants in Warrant.

Search warrant supported by the affidavits of two persons was not rendered invalid by fact that name of one affiant was omitted from the warrant where a neutral detached magistrate had both affidavits before him when he issued the warrant, the two affidavits supported a finding of probable cause when read together, and both affidavits were attached to the warrant. State v. Boushee, 284 N.W.2d 423, 1979 N.D. LEXIS 303 (N.D. 1979).

False Statement in Affidavit.

Where a special agent made a false statement in an affidavit for a search warrant that defendant was the driver of car involved in a theft, the search of defendant’s home was therefore illegal under the federal and state constitutions, the evidence seized as a result of the search should have been suppressed, and defendant’s conviction on drug-related charges was reversed. State v. Nelson, 2005 ND 59, 693 N.W.2d 910, 2005 N.D. LEXIS 74 (N.D. 2005).

Court did not err by denying defendant’s request for a Franks hearing based on defendant’s assertion that the officer misrepresented to the district court that the rubber gloves and shop towels found in the sewer system could be directly traced back to defendant because, even without the information that their origins pointed to only two houses, defendant’s residence remained one of seven residences as a potential source for those items. The proffered affidavit neither rebutted the fact that the gloves and towels were found in the sewer, which as the officer testified indicated the presence of methamphetamine production, nor did the affidavit eliminate defendant’s house as a potential source for those materials. All the remaining information established probable cause to support the search warrant. State v. Ebel, 2006 ND 212, 723 N.W.2d 375, 2006 N.D. LEXIS 212 (N.D. 2006).

Misleading Information in Affidavit.

Trial court’s finding that statements in affidavit supporting search warrant were not materially misleading was not clearly erroneous. State v. Damron, 1998 ND 71, 575 N.W.2d 912, 1998 N.D. LEXIS 75 (N.D. 1998).

Motion to suppress was denied in a case involving methamphetamines when a deputy demonstrated that the tank of anhydrous was significant in the context of other ingredients also purchased by the defendant; other statements regarding whether the tank had been stolen were not relevant to the probable cause analysis, and no falsity or omission required setting aside the statements regarding the anhydrous tank. State v. Ballweg, 2003 ND 153, 670 N.W.2d 490, 2003 N.D. LEXIS 171 (N.D. 2003).

Nighttime Search.

In defendant’s drug case, there was no evidence to support a finding of probable cause for a nighttime warrant where the “odd hours” defendant kept were irrelevant because the warrant could have been executed whether or not he was actually present in his home. In addition, the nighttime warrant could not be justified by defendant’s purported propensity for violence when it was unsupported by the record. State v. Fields, 2005 ND 15, 691 N.W.2d 233, 2005 N.D. LEXIS 23 (N.D. 2005).

Trial court erred in denying defendant’s motion to suppress because a search warrant affidavit did not establish sufficient probable cause demonstrating the need for a nighttime warrant to search his residence. State v. Holly, 2013 ND 94, 833 N.W.2d 15, 2013 N.D. LEXIS 94 (N.D. 2013).

No-Knock Warrant.

Mere allegations that drugs are present cannot automatically result in the issuance of a no-knock warrant. State v. Herrick, 1997 ND 155, 567 N.W.2d 336, 1997 N.D. LEXIS 174 (N.D. 1997).

Fact that defendant may have had a firearm was insufficient by itself to provide probable cause for a no-knock entry, but only the no-knock aspect of the search warrant was invalid, not the search warrant as a whole; and as the officer functionally excised its invalid portion by knocking and announcing his entry, suppression of evidence seized in the search was not required. State v. Roth, 2004 ND 23, 674 N.W.2d 495, 2004 N.D. LEXIS 42 (N.D. 2004).

Probable cause is required for issuance of a no-knock warrant under N.D.C.C. § 19-03.1-32. State v. Herrick, 1997 ND 155, 567 N.W.2d 336, 1997 N.D. LEXIS 174 (N.D. 1997).

The police officer’s reasonable belief that the defendant would destroy drug evidence if officers knocked before entering was insufficient to support issuance of a no-knock warrant without particularized information about the type of drugs at issue and their disposability; the information was particular enough, however, to defeat the conclusion that the warrant was issued on a per se basis. State v. Utvick, 2004 ND 36, 675 N.W.2d 387, 2004 N.D. LEXIS 59 (N.D. 2004).

Probable Cause.

—In General.

Affidavits, even though specific and obviously prepared in haste, may establish probable cause and justify the issuance of a search warrant when judged in a commonsense and realistic fashion; where an investigation involved crimes of great magnitude and it was reasonably established that there existed a justifiable connection which gave cause to search an accused’s living quarters and automobile, the affidavits established the necessary probable cause and issuance of a search warrant was justified. Iverson v. North Dakota, 480 F.2d 414, 1973 U.S. App. LEXIS 9495 (8th Cir. N.D.), cert. denied, 414 U.S. 1044, 94 S. Ct. 549, 38 L. Ed. 2d 335, 1973 U.S. LEXIS 1531 (U.S. 1973).

Unrecorded and unsworn oral statements before a magistrate may not be used to establish probable cause for the issuance of a search warrant. State v. Schmeets, 278 N.W.2d 401, 1979 N.D. LEXIS 186 (N.D. 1979).

Probable cause to issue warrant to search defendant’s residence for marijuana and marked bills was established by sworn testimony that police gave marked bills to person who went to residence and exchanged the bills for marijuana and who then returned marijuana to police. State v. Berger, 285 N.W.2d 533, 1979 N.D. LEXIS 308 (N.D. 1979).

Affidavit in support of a search warrant for evidence of a sexual offense and possession of controlled substances was insufficient to establish probable cause where it failed to state the time or date of criminal activity; however, where contemporaneously filed affidavit in support of an arrest warrant stated the time and date of the criminal activity, the magistrate could refer to the affidavit in support of the arrest warrant to supply the necessary information missing from the affidavit in support of the search warrant to establish probable cause to issue the search warrant. State v. Mondo, 325 N.W.2d 201, 1982 N.D. LEXIS 343 (N.D. 1982), overruled in part, State v. Woinarowicz, 2006 ND 179, 720 N.W.2d 635, 2006 N.D. LEXIS 181 (N.D. 2006).

Before issuing a search warrant, magistrate must be presented sufficient information rather than bare bones affidavit to allow that official to determine probable cause; determination cannot be mere ratification of bare conclusions of others. State v. Ringquist, 433 N.W.2d 207, 1988 N.D. LEXIS 234 (N.D. 1988).

In view of the special protection given to the home by the Fourth Amendment and this section, something additional and more objective than the facile conclusion that contraband is ordinarily kept in the home should be required to establish probable cause to search that home, particularly where it was apparent that the officers believed the contraband was in a particular place, and where only after a search of that place failed to reveal the contraband did the officers rely upon their training and knowledge to justify the search of the defendant’s residence. State v. Mische, 448 N.W.2d 415, 1989 N.D. LEXIS 222 (N.D. 1989).

Information about a defendant which included false information, and represented only unsupported conclusions and statements about his reputation of being “suspected of trafficking narcotics,” without some elaboration of the underlying circumstances for those conclusions and statements, was insufficient to support a determination that probable cause existed to issue a warrant to search the defendant’s house. State v. Handtmann, 437 N.W.2d 830, 1989 N.D. LEXIS 58 (N.D. 1989).

In the absence of evidence that a surveillance team saw a drug suspect take anything into the defendants’, a drug suspect house, or in the absence of other reliable information about defendants, evidence that the drug suspect’s pattern of short stops was consistent with drug deliveries and an anonymous informant’s statements were not sufficient to authorize the issuance of a warrant to search the defendants’ house, merely because the drug suspect stopped at their house. State v. Handtmann, 437 N.W.2d 830, 1989 N.D. LEXIS 58 (N.D. 1989).

Under the totality-of-the-circumstances test, magistrate had probable cause to issue search warrant based on reliable chain of information supplied by police, ample facts from crime scene, and link between defendant and alleged crime. State v. Damron, 1998 ND 71, 575 N.W.2d 912, 1998 N.D. LEXIS 75 (N.D. 1998).

Evidence found in defendant’s garage including potting soil bags, a marijuana seed and marijuana stems coupled with defendant’s prior drug convictions were sufficient to establish probable cause for magistrate to issue a search warrant despite the fact that officer failed to inform magistrate that his information originated from an anonymous informant. State v. Duchene, 2001 ND 66, 624 N.W.2d 668, 2001 N.D. LEXIS 78 (N.D. 2001).

While individual bits of information that associated defendant with trafficking in drugs may not have been sufficient separately to establish probable cause, all the information taken together, along with the experience and training of the police officers was sufficient to establish probable cause; likewise, the information about defendant previously being suspected of growing marijuana at his home was stale on its own, but in conjunction with the other evidence, established probable cause. State v. Guthmiller, 2002 ND 116, 646 N.W.2d 724, 2002 N.D. LEXIS 137 (N.D. 2002).

Considering the totality of the circumstances, especially the detailed, first-hand knowledge the informant provided to the police officers about the methamphetamine lab, the officer’s failure to inform the magistrate that the informant had lied about his identity and that he had received a deal did not defeat probable cause to issue the search warrant that led to defendant’s arrest and conviction for possession of and manufacturing methamphetamine. State v. Holzer, 2003 ND 19, 656 N.W.2d 686, 2003 N.D. LEXIS 15 (N.D. 2003).

In a case involving methamphetamines, a court properly denied defendants’ motion to suppress where the presence of anhydrous and the large quantity of Sudafed (ingredients in methamphetamines), as well as the condition of the partially concealed garage, created a substantial basis to conclude that probable cause existed to search the premises. State v. Ballweg, 2003 ND 153, 670 N.W.2d 490, 2003 N.D. LEXIS 171 (N.D. 2003).

Simultaneous purchase of innocent items, such as sulfuric acid (in the form of drain opener) and suphedrine (an over-the-counter medication) can become suspicious under circumstances indicating the items will be used to manufacture drugs. State v. Dodson, 2003 ND 187, 671 N.W.2d 825, 2003 N.D. LEXIS 195 (N.D. 2003).

In a drug case, a court properly denied defendants’ motion to suppress where, although information regarding a suspicious person visiting defendants was insufficient alone to establish probable cause, the presence of anhydrous, Sudafed, and other supplies used to manufacture methamphetamine was indicative of further drug activity. State v. Ballweg, 2003 ND 153, 670 N.W.2d 490, 2003 N.D. LEXIS 171 (N.D. 2003).

An affidavit noting evidence of suphedrine and tinfoil with burn marks discovered during search of garbage bags of individuals believe to be associated with defendant, a vehicle associated with the manufacture of methamphetamine parked outside defendant’s residence, and defendant’s purchase of sulfuric acid, was sufficient to justify further investigation but insufficient to show probable cause for a warrant. State v. Dodson, 2003 ND 187, 671 N.W.2d 825, 2003 N.D. LEXIS 195 (N.D. 2003).

When the defendant had repeatedly been a registered guest of a hotel room where drugs, paraphernalia, and weaponry were found; defendant was a suspect in the aggravated assault of an alleged drug informant at another hotel; and after the assault, police found marijuana and a scale in another suspect’s hotel room; there was sufficient probable cause for a person of reasonable caution to believe that evidence of drug use and trafficking would be found in the defendant’s hotel room. State v. Utvick, 2004 ND 36, 675 N.W.2d 387, 2004 N.D. LEXIS 59 (N.D. 2004).

In a drug case, probable cause to search defendant’s home was lacking where, if an illegally found foil bindle was excluded, the remaining evidence included only defendant’s delusional erratic behavior, and the statement that her husband “made it right here,” which the officer interpreted to mean that defendant’s husband made methamphetamine in their home. However, if the officer correctly believed that the husband made methamphetamine in the home, it would have been three or four weeks since it last occurred because the officer knew that he was in drug rehabilitation at the time, and therefore, the information was stale. State v. Nelson, 2005 ND 11, 691 N.W.2d 218, 2005 N.D. LEXIS 9 (N.D. 2005).

Affidavit in support of the search warrant contained sufficient probable cause where, under the totality-of-the-circumstances test, there was a substantial basis for the determination that contraband and drug evidence would probably be found in the apartment unit. Among other things, the police observed a suspect enter the apartment to obtain drugs on two separate occasions and the suspect called the confidential informant from the apartment stating that the drug source wanted more money. State v. Driscoll, 2005 ND 105, 697 N.W.2d 351, 2005 N.D. LEXIS 120 (N.D. 2005).

Search warrants based on what officers “may” find rather than on probable cause are invalid. State v. Stewart, 2006 ND 39, 710 N.W.2d 403, 2006 N.D. LEXIS 45 (N.D. 2006).

Probable cause supported the issuance of a search warrant because the officer offered witnesses’ observations of open windows in cold weather and cylindrical tanks being taken into defendant’s house, and the officer testified that the presence of tanks and the open windows was indicative of methamphetamine production. The officer testified that rubber gloves and shop towels had been coming into the city’s sewer system, the city had traced those items directly back to a manhole cover near defendant’s residence, and because it was a closed sewer system, the items could only have originated from defendant’s house or the mayor’s house. State v. Ebel, 2006 ND 212, 723 N.W.2d 375, 2006 N.D. LEXIS 212 (N.D. 2006).

Denial of suppression motion was affirmed because officers had probable cause to arrest an individual lying in the back seat of a vehicle for physical obstruction of government function, preventing arrest and burglary, where, during the investigation of a burglary the officers observed defendant and his companion in the vehicle and observed gloves, a hammer and a crowbar, and the occupants refused to open the vehicle and the officers had a locksmith open the vehicle. The officers’ use of a locksmith to open the vehicle to effectuate the arrest of the occupants was eminently reasonable under the Fourth Amendment, seizure of the evidence would have been justified under the plain view doctrine or as incident to a lawful arrest, and the officers’ use of caution in obtaining a search warrant before proceeding further and their subjective beliefs as to the existence or nonexistence of reasonable suspicion and probable cause were of no moment. State v. Washington, 2007 ND 138, 737 N.W.2d 382, 2007 N.D. LEXIS 138 (N.D. 2007).

Based on the officer’s testimony regarding his training and experience as a police officer, the smell of marijuana on three pieces of evidence found in defendant’s trash can, a paper towel with marijuana residue, packaging tape, and cellophane packaging, there was a sufficient factual basis to issue a search warrant for defendant’s home. State v. Schmalz, 2008 ND 27, 744 N.W.2d 734, 2008 N.D. LEXIS 20 (N.D. 2008).

District court erred in denying defendant’s motion to suppress the evidence seized as a result of the illegal search, because the issuance of the search warrant was not supported by probable cause, when the search warrant application and supporting testimony did not contain information describing defendant’s residence, whether trash belonging to others could be placed in this location, and whether the evidence was found in a trash bag or whether the alleged contraband was found in the same bag as the mail. State v. Kieper, 2008 ND 65, 747 N.W.2d 497, 2008 N.D. LEXIS 70 (N.D. 2008).

Defendant’s passenger’s breath sample indicated a blood alcohol content of .083 percent, which provided probable cause that she committed the crime of minor in possession of alcohol, and defendant’s admission that there was alcohol in the car, coupled with the evidence that the passenger had consumed alcohol, would be enough to provide a reasonable belief that the passenger had actual control over those beverages in the vehicle, thus violating the law prohibiting minors from being in possession of alcohol; thus, the officers had probable cause to search the vehicle for alcohol, as it constituted an identifiable object connected with the passenger’s criminal activity. State v. Zwicke, 2009 ND 129, 767 N.W.2d 869, 2009 N.D. LEXIS 128 (N.D. 2009).

Trial court did not err in denying defendant’s motion to suppress the fruits of a search from his van because probable caused existed to issue the search warrant; defendant had been at a bar with the murder victim, the victim left the bar with him in the van, and no one had seen the victim since; defendant had a significant criminal history, including at least one violent crime. State v. Wacht, 2013 ND 126, 833 N.W.2d 455, 2013 N.D. LEXIS 120 (N.D. 2013).

Although a police officer entered a constitutionally protected space when she stepped into a hotel room without a search warrant and without exigent circumstances, the district court did not err in applying the independent source doctrine, as the search warrant affidavit, excised of its tainted information, was supported by probable cause derived from sources independent of the illegal search. State v. Kuruc, 2014 ND 95, 846 N.W.2d 314, 2014 N.D. LEXIS 97 (N.D. 2014).

In an attempted murder case, a district court did not err by failing to suppress evidence obtained by a search warrant because probable cause existed, as required by the United States and North Dakota Constitutions, since there was a fair probability that evidence would have been found on defendant's person, and in her home and vehicle. It was a reasonable inference that the assailant did not intend to leave the area on foot in stocking feet in winter, clothing evidence was pertinent to the investigation, and two sources mentioned in the affidavit provided a nexus to defendant's home. State v. Leavitt, 2015 ND 146, 864 N.W.2d 472, 2015 N.D. LEXIS 164 (N.D. 2015).

District court erred in denying defendant’s motion to suppress as probable cause did not exist for a search warrant for a package because, although the detective had multiple courses in interdiction training, and he testified that the shipping store employee thought defendant behaved unusually, that the shape of the contents strongly indicated the presence of cash, that Colorado was a source state for marijuana, and that both defendant and the recipient of the package had prior drug convictions; and, although the evidence showed that defendant might have been sending cash rather than an owner’s manual, as he stated, nothing more than a hunch showed that defendant was sending illicit proceeds from the sale of drugs. State v. Biwer, 2018 ND 185, 915 N.W.2d 837, 2018 N.D. LEXIS 193 (N.D. 2018).

District court properly denied defendant’s motion to suppress evidence because a police officer’s inspection of a broken light bulb was not an independent search requiring probable cause since the officer was lawfully in a position to view the bulb, and the evidence seized was in plain view; the officer did not move or touch any piece of the broken bulb until after he realized it was drug paraphernalia, but he only bent down to get a better look at it. State v. Komrosky, 2019 ND 300, 936 N.W.2d 82, 2019 N.D. LEXIS 299 (N.D. 2019).

—Information from Informants.

Although courts presume the reliability of citizen informants, their reliability should be evaluated from the nature of their reports, their opportunity to observe the matters reported, and the extent to which it can be verified by independent investigation; thus, a citizen report that defendant did “more than his share of buying and selling methamphetamine” could not be used to support probable cause for the issuance of a search warrant, because there was no evidentiary support for the statement. State v. Dodson, 2003 ND 187, 671 N.W.2d 825, 2003 N.D. LEXIS 195 (N.D. 2003).

Affidavit based on information supplied by an informant satisfied probable cause requirement where the affidavit, although not specifically stating that the informant was reliable, stated that the affiant had known the informant several years, that the informant had cooperated with him in the past, and that the facts supplied by the informant had checked out as informant had said they would. State v. Mertens, 268 N.W.2d 446, 1978 N.D. LEXIS 249 (N.D. 1978).

In determining the existence of probable cause when the affidavit in support of the search warrant is based on hearsay information given to the affiant by an informant, the magistrate must take into account the status of the informant in judging his credibility or reliability, and in inquiring into informant’s basis-of-knowledge may consider that the informant named in the affidavit is either a good citizen, a victim of a crime, or a disinterested observer. State v. Klosterman, 317 N.W.2d 796, 1982 N.D. LEXIS 258 (N.D. 1982).

Information supplied by an anonymous informant cannot alone establish probable cause for a warrant if the tip provides virtually nothing from which one might conclude that the informant is honest or that his information is reliable, or if the information gives absolutely no indication of the basis for the informant’s predictions regarding a defendant’s criminal activities. State v. Thompson, 369 N.W.2d 363, 1985 N.D. LEXIS 330 (N.D. 1985).

Affidavit held insufficient to provide the magistrate with a substantial basis for determining the existence of probable cause where the anonymous informant’s tip and the surrounding facts did not possess an internal coherence that gave weight to the whole, nor did the scope of police investigatory work performed adequately bolster the conclusory nature of the anonymous informant’s tip. State v. Thompson, 369 N.W.2d 363, 1985 N.D. LEXIS 330 (N.D. 1985).

Where interviews with two different confidential informants were conducted from one to four months before search warrant was issued, magistrate and police properly relied on that information to the extent it established defendants were involved with drug trafficking; the matter was corroborated by their prior records, and the information was corroborated by information supplied by an anonymous informant’s tip and other independent police investigations. State v. Ringquist, 433 N.W.2d 207, 1988 N.D. LEXIS 234 (N.D. 1988).

Probable cause for issuance of warrant to search drug suspect’s home existed where reliable informant advised officer affiant that he had overheard telephone conversation where arrangements for drug pickup were made, where affiant followed person who made telephone call to house for which search warrant was sought and where affiant saw individual leave house with a brown paper object about the size of a baseball. State v. Dymowski, 458 N.W.2d 490, 1990 N.D. LEXIS 135 (N.D. 1990).

Under the totality-of-the-circumstances test, evidence including statement by reliable citizen informant regarding drug dealings and verification by police of ongoing drug activity at residence supported magistrate’s finding of probable cause to issue search warrant. State v. Rangeloff, 1998 ND 135, 580 N.W.2d 593, 1998 N.D. LEXIS 136 (N.D. 1998).

Despite the fact that information regarding an informant’s record was left out of an application for a search warrant of defendant’s residence, the search warrant was still valid; moreover, evidence that defendant had been involved in the theft of anhydrous ammonia storage tanks and possessed receipts for multiple purchases of batteries and pseudoephedrine was sufficient to establish probable cause for the warrant. State v. Corum, 2003 ND 89, 663 N.W.2d 151, 2003 N.D. LEXIS 103 (N.D. 2003).

Where an officer-affiant vouched for a confidential informant’s reliability and veracity, the informant had provided reliable information about drug traffickers in the past, and supplied detailed information about defendant’s manufacture of methamphetamine, the fact that the information was old was not fatal, since it indicated ongoing criminal activity involving defendant and supported a finding of probable cause for issuance of a search warrant. State v. Roth, 2004 ND 23, 674 N.W.2d 495, 2004 N.D. LEXIS 42 (N.D. 2004).

Although affidavit in support of search warrant was not deliberately false where informant later denied making statements alleging illegal drug activities at the defendant’s residence but it was found those statements were heard by another officer, the affidavit did contain misleading second-hand statements about past incidents allegedly supporting the informant’s credibility. Once the misleading statements were stricken, the affidavit was insufficient to establish the credibility of the informant since the informant was a member of the “criminal milieu” and credibility was not presumed; the existence of the defendant’s vehicle described by the informant was an easily obtainable fact and was not sufficient to support the credibility of the informant as something more substantial was necessary to establish the credibility of a member of the criminal milieu. State v. Donovan, 2004 ND 201, 688 N.W.2d 646, 2004 N.D. LEXIS 336 (N.D. 2004).

Probable cause to execute a search warrant for defendant’s residence and business premises existed where the reliability of the informants was established; all four informants gave detailed, firsthand information, much of which was internally corroborated. The trial court’s consideration of police officers’ surveillance testimony was also reasonable in establishing probable cause. State v. Stewart, 2006 ND 39, 710 N.W.2d 403, 2006 N.D. LEXIS 45 (N.D. 2006).

Search warrant was supported by probable cause under N.D. Const. art. I, § 8 because a confidential informant stated that the informant used methamphetamine at defendant’s house, the affiant saw the informant at defendant’s residence, and the affiant also saw needle marks on the informant’s arms. State v. Johnson, 2011 ND 48, 795 N.W.2d 367, 2011 N.D. LEXIS 50 (N.D. 2011).

When information from defendant's cell phone was excised from the affidavit, sufficient evidence remained to establish probable cause to issue a search warrant, including a detective's affidavit he received multiple tips that a black male known as “D” was distributing heroin, “D” was defendant, and an informant told the detective she saw defendant with heroin and he was her main source for heroin. State v. Chatman, 2015 ND 296, 872 N.W.2d 595, 2015 N.D. LEXIS 310 (N.D. 2015).

Evidence was sufficient to establish probable cause for the third search warrant because the detective testified that the new residents told the detective that they recently moved in and that defendant moved upstairs; and the detective verified defendant’s address before obtaining the third warrant, for which the new residents’ statements and corroborating observations created a sufficient nexus. State v. Biwer, 2018 ND 185, 915 N.W.2d 837, 2018 N.D. LEXIS 193 (N.D. 2018).

—Totality of Circumstances Test.

The supreme court adopted the totality-of-circumstances test enunciated in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), to assess probable cause for the issuance of search warrants. State v. Ringquist, 433 N.W.2d 207, 1988 N.D. LEXIS 234 (N.D. 1988).

By adopting the Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), totality of the circumstances formula, the supreme court abandoned the former two-prong test in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) for determining the existence of probable cause. Nevertheless, the supreme court of North Dakota recognizes an affiant’s “basis of knowledge,” one prong of the Aguilar test, is a highly relevant consideration under the Illinois v. Gates totality of the circumstances test. Furthermore, in determining probable cause, sufficient information, rather than “bare-bones” information, must be presented to the magistrate. State v. Schroeder, 450 N.W.2d 423, 1990 N.D. LEXIS 10 (N.D. 1990).

Search warrant providing for a nighttime search was not supported by probable cause where other than a single incident of a controlled buy, there was nothing in the record to indicate that without the nighttime search, the evidence would have been destroyed to removed from the premises before a search could have been executed in the morning hours, nor was there evidence that the buy conducted in the vicinity of defendant's residence was part of an ongoing trafficking operation where drugs were moved, traded, bought, or sol during the nighttime hours. State v. Zeller, 2014 ND 65, 845 N.W.2d 6, 2014 N.D. LEXIS 63 (N.D. 2014).

District court properly denied defendant's motion to reconsider the denial of her motion to suppress because, despite defendant's arguments concerning a dog sniff and law enforcement's reliance on the telephone calls she made from jail, the search warrant for her luggage was supported by probable cause where the totality of the circumstances established probable cause to warrant a person of reasonable caution to believe evidence of contraband would be found in defendant's luggage. State v. Dahl, 2015 ND 72, 860 N.W.2d 844, 2015 N.D. LEXIS 67 (N.D. 2015).

District court did not err in concluding that defendant's N.D. Const. art. I, § 8, rights were not violated where a dog's positive reaction to the backpack, coupled with an officer's affidavit describing defendant's actions after leaving the train station and traveling to a known drug house, constituted probable cause for a search warrant. State v. Hall, 2017 ND 124, 894 N.W.2d 836, 2017 N.D. LEXIS 120 (N.D. 2017).

Trial court erred by finding that probable cause for the search warrant for defendant’s home did not exist because the drug task force had received an anonymous tip that defendant had recently returned from out of town with marijuana, and defendant’s garbage contained empty packaging and tubing with labels stating that they contained THC and marijuana. The required nexus between the contents of the garbage and the home was established because officers obtained defendant’s address from his drivers license and the garbage can was located in a manner where it would be regularly retrieved by the garbage truck. State v. Odum, 2019 ND 105, 925 N.W.2d 451, 2019 N.D. LEXIS 110 (N.D. 2019).

Qualifications of Affiant.

Where the magistrate is apprised of the underlying circumstances which support the affiant’s conclusion that a substance is marijuana, there is no requirement that the affiant for a search warrant for marijuana be an expert in identifying marijuana. State v. Boushee, 284 N.W.2d 423, 1979 N.D. LEXIS 303 (N.D. 1979).

Supporting Affidavit Not Filed.

Search not completed before dark was invalid where it was conducted pursuant to a warrant not supported by positive affidavit that property was in place to be searched. State v. Howe, 182 N.W.2d 658 (N.D. 1970), cert. denied, 403 U.S. 933, 91 S. Ct. 2261, 29 L. Ed. 2d 712 (1971), distinguished, State v. Matthews, 216 N.W.2d 90, 1974 N.D. LEXIS 259 (N.D. 1974).

Suppression Warranted.

Defendant was entitled to suppress contraband found in defendant's backpack because defendant was not an occupant of the residence belonging to the individual who was the subject of a probationary search, but was, at most, a frequent visitor who kept personal belongings at the residence. Furthermore, there was no reasonable and articulable suspicion to support the continued detention of defendant while the police waited for a K-9 unit to arrive and check defendant's backpack when defendant did not consent to a search of the backpack. State v. Kaul, 2017 ND 56, 891 N.W.2d 352, 2017 N.D. LEXIS 56 (N.D. 2017).

III. Warrantless Searches and Seizures.

Trial court's order denying defendant's motion to suppress was erroneous, because no governmental interest outweighed defendant's expectation of privacy so that the suspicionless search of defendant's person and home, while defendant was on unsupervised probation, was constitutionally unreasonable. State v. Ballard, 2016 ND 8, 874 N.W.2d 61, 2016 N.D. LEXIS 15 (N.D. 2016).

—Abandoned Vehicle.

Officer’s search of a motor vehicle was justifiable under the abandonment exception to the warrant requirement where the officer reasonably believed that the vehicle, which had run off the road during bad weather, had been abandoned after no one showed up to meet the tow truck driver. United States v. Le, 402 F. Supp. 2d 1068, 2005 U.S. Dist. LEXIS 30520 (D.N.D. 2005), aff'd, 474 F.3d 511, 2007 U.S. App. LEXIS 1329 (8th Cir. N.D. 2007).

—Automobile Searches.

While warrantless searches of automobiles may be permissible in some cases where similar searches of buildings would not be, due to the vehicle’s mobility, the lesser expectation of privacy therein, the fact that automobiles are frequently in the plain view of the police, or because they may come into police custody and become subject to inventory search, none of these considerations justified the warrantless search of a car found stuck in a snowbank on private property by police engaged in an attempted robbery investigation; because there was no reason to believe the vehicle contained contraband, and because the police had ample time to obtain a warrant, their search without one was unreasonable and evidence discovered in the course of it should have been suppressed. State v. Stockert, 245 N.W.2d 266, 1976 N.D. LEXIS 133 (N.D. 1976).

Search of glovebox of car found stuck in snowbank on private property was not justified by the police officers’ purpose to find the vehicle’s registration card. State v. Stockert, 245 N.W.2d 266, 1976 N.D. LEXIS 133 (N.D. 1976).

Warrantless search of automobile for bottles of beer was justified, and a pistol found during the search was properly admitted into evidence, where officer who had observed defendant drinking beer while driving drove alongside car after defendant had parked and left it, saw opened six-pack and one open bottle of beer in plain view inside the car and searched car for more beer after being unable to locate defendant who had remained in immediate vicinity and whose mother, among others, knew officer was looking for defendant. State v. Meadows, 260 N.W.2d 328, 1977 N.D. LEXIS 170 (N.D. 1977), overruled in part, State v. Zwicke, 2009 ND 129, 767 N.W.2d 869, 2009 N.D. LEXIS 128 (N.D. 2009).

Fact that officer conducting warrantless search of automobile had seized sufficient evidence to sustain conviction of violating “open bottle law” when he seized open bottle and opened six-pack of beer lying in plain view inside auto did not preclude officer from continuing search and seizing pistol found in console. State v. Meadows, 260 N.W.2d 328, 1977 N.D. LEXIS 170 (N.D. 1977), overruled in part, State v. Zwicke, 2009 ND 129, 767 N.W.2d 869, 2009 N.D. LEXIS 128 (N.D. 2009).

Warrantless taking by sheriff of items from an inoperative pickup truck did not violate defendant’s rights under this section where owner of the property upon which the truck had been parked for more than 48 hours without permission requested sheriff to remove it; sheriff had authority to take the truck into custody as an abandoned vehicle pursuant to N.D.C.C. § 39-26-04; sheriff took custody of the truck and removed and inventoried the items at issue for the purpose of protecting them while the truck was in his custody; the items removed and inventoried were in plain view; and at the time of their removal the sheriff was unaware that any crime had been committed. State v. Klodt, 298 N.W.2d 783, 1980 N.D. LEXIS 338 (N.D. 1980).

Where police officer stopped a car for speeding and noticed empty beer cans in the car, and from the driver license determined the driver was a minor, the officer could reasonably have determined that the driver may have been violating the minor in possession of an alcoholic beverage statute or the open container statute and therefore had probable cause to search the car for beer cans containing beer, and a warrantless search of the car for such cans was valid; where during the warrantless search for beer cans the officer, who had been trained to detect the odor of marijuana, noticed the smell of marijuana and found a tube under the front seat which he believed had marijuana resin on it, the warrantless seizure of the tube was proper under the plain view doctrine, and the tube, in conjunction with the odor of marijuana, gave the officer probable cause to make a more thorough search of the car’s interior, including the ash tray, glove compartment, jacket lying in the car, and under a mattress in the rear of the car and the warrantless seizure of another tube found in the glove compartment, a roach clip, a film canister with marijuana, and a bag of marijuana seeds found under the mattress was valid. State v. Kottenbroch, 319 N.W.2d 465, 1982 N.D. LEXIS 281 (N.D. 1982).

Officer had probable cause to believe vehicle contained additional contraband and properly searched the vehicle under the automobile exception to the warrant requirement where a breathalyzer test of driver and an under-aged passenger revealed alcohol consumption and, thus, evidence seized from the vehicle, including methamphetamine, methamphetamine paraphernalia, and marijuana, should not have been suppressed. State v. Haibeck, 2004 ND 163, 685 N.W.2d 512, 2004 N.D. LEXIS 292 (N.D. 2004).

Although a trooper might not have been certain that defendant’s syringes were for drug use, when combined with the butane lighters, they were enough to warrant a belief that they might be drug paraphernalia and evidence of drug activity; based on the presence of butane lighters and syringes that the trooper saw on the front passenger’s seat, both known by the trooper to be used for drug production and use, and defendant’s statements, a reasonable person in the trooper’s position would have concluded that there was probable cause to search defendant’s vehicle. Because the trooper had probable cause to search, the evidence found in defendant’s vehicle was admissible under the automobile exception to the warrant requirement and, therefore, the trial court improperly granted defendant’s motion to suppress the evidence found in defendant’s vehicle. State v. Doohen, 2006 ND 239, 724 N.W.2d 158, 2006 N.D. LEXIS 252 (N.D. 2006).

Officers were justified in conducting a warrantless search of defendant’s vehicle under the automobile exception to the warrant requirement; given that defendant had already informed officers that there was alcohol in the truck and the passenger’s breath sample indicated that she had illegally consumed alcohol, the officers had probable cause to believe the vehicle contained seizable items, and by the time the officers would have obtained a warrant and sought out defendant’s vehicle again, there would have been a near certitude that the evidence would have been either moved or disposed of. The court affirmed the denial of defendant’s motion to suppress. State v. Zwicke, 2009 ND 129, 767 N.W.2d 869, 2009 N.D. LEXIS 128 (N.D. 2009).

Where an informant told police that defendant was transporting marijuana and heroin from Washington to North Dakota, the police obtained search warrants for defendant’s home and business on the basis of that information and the search uncovered drugs and drug paraphernalia and defendant was placed under arrest, where the police decided to perform a warrantless search of defendant’s car because the informant told the police that defendant was carrying large amounts of drugs but they found only small amounts of drugs at defendant’s apartment and business, and the search revealed two to three pounds of marijuana found in the spare tire, defendant’s motion to suppress the evidence obtained from the car was properly denied because the warrantless search of defendant’s automobile was supported by probable cause based on a reasonable belief arising out of the circumstances known to the officer that the automobile contained illegal drugs that were subject to seizure; therefore, the search was valid. State v. Sommer, 2011 ND 151, 800 N.W.2d 853, 2011 N.D. LEXIS 152 (N.D. 2011).

Defendant’s motion to suppress evidence obtained during a warrantless search of a camper was properly denied because the camper fell within the scope of the automobile exception to the warrant requirement, justifying the warrantless search because law enforcement had probable cause to believe drugs were present in the vehicle. State v. Otto, 2013 ND 239, 840 N.W.2d 589, 2013 N.D. LEXIS 242 (N.D. 2013).

Defendant's motion to suppress was improperly granted because he was lawfully stopped for driving in the wrong lane; the search of his vehicle was proper under the automobile exception to the warrant requirement as one of the officers discovered, in plain view, what he thought to be drug paraphernalia and crack cocaine in defendant's vehicle, which provided probable cause to believe narcotic activity was afoot; and, based on the totality of the circumstances, the inconclusive field test of the suspected crack cocaine did not eliminate probable cause as defendant was carrying nearly $8,400 in cash, three cell phones, and two rolled up dollar bills, one of which had a burnt end, and both appeared to have drug residue present. State v. Lark, 2017 ND 251, 902 N.W.2d 739, 2017 N.D. LEXIS 248 (N.D. 2017).

—Caretaker Stop.

A combination of probable cause and exigent circumstances is required to permit the warrantless, nonconsensual entry into a suspect’s home to make a felony arrest; the imminent destruction of evidence of a crime may be a sufficient exigent circumstance to permit the warrantless, nonconsensual entry into a home to make an arrest; however, when destruction of evidence is the exigent circumstance, there must be more than a mere belief that such destruction is probable, coupled with the fact that the suspect knows or will soon become aware that the police are on his trail, and that the entry is the least intrusive which, under the circumstances, is possible. State v. Nagel, 308 N.W.2d 539, 1981 N.D. LEXIS 318 (N.D. 1981).

Law enforcement officers frequently act in the role of community caretaker, actions separate from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. It is not a Fourth Amendment seizure for a police officer to approach and talk with a person in a public place, including a stopped vehicle, in this caretaker role. City of Fargo v. Sivertson, 1997 ND 204, 571 N.W.2d 137, 1997 N.D. LEXIS 262 (N.D. 1997).

Evidence supported the finding that the officer acted as a community caretaker when he approached the driver because the officer could not be sure whether the driver, slumped over the steering wheel, was simply sleeping or in need of assistance, and as a result of the encounter, the officer had reasonable grounds to believe that the driver was in actual physical control of the vehicle in violation of N.D.C.C. § 39-08-01. Rist v. N.D. DOT, 2003 ND 113, 665 N.W.2d 45, 2003 N.D. LEXIS 127 (N.D. 2003).

Trial court did not err in denying defendant’s motion to suppress evidence of drug paraphernalia under U.S. Const. amend. IV and N.D. Const. art. I, § 8, because the officer was performing a community caretaking function when he entered the premises with the landlord to determine whether the premises had been properly vacated and defendant had consented to the officer accompanying him to an area where evidence was in plain view. State v. Albaugh, 2007 ND 86, 732 N.W.2d 712, 2007 N.D. LEXIS 86 (N.D. 2007).

Law enforcement officers’ entry into a dwelling place cannot be justified alone on the basis that the officer is acting in a community caretaking capacity; the community caretaking doctrine does not extend to include officers’ entry into private residences. State v. Gill, 2008 ND 152, 755 N.W.2d 454, 2008 N.D. LEXIS 158 (N.D. 2008).

Warrantless entry of law enforcement officers into a home presents a Fourth Amendment issue and should not be examined under the community caretaking doctrine. State v. Gill, 2008 ND 152, 755 N.W.2d 454, 2008 N.D. LEXIS 158 (N.D. 2008).

District court did not err by denying defendant’s motion to suppress because defendant’s rights under the Fourth Amendment and N.D. Const. art. I, § 8 were not violated; during the officer’s initial encounter with defendant, he was engaged in a community caretaking function because, given that it was an early January morning and the apparent lack of movement of the person inside the pickup, the officer’s subsequent approach of the vehicle, yelling, and rapping on the window was reasonable and was not a seizure. The officer’s subsequent observations gave the officer the requisite reasonable and articulable suspicion to detain defendant because defendant appeared very confused “for many seconds” and was “genuinely out of it;” these observations, combined with the officer’s initial observations of the truck in an empty lot at 2:00 a.m. in January with a person leaning or slumped toward the center and the vehicle still there almost a half an hour later gave the officer a reasonable suspicion that defendant was impaired. City of Mandan v. Gerhardt, 2010 ND 112, 783 N.W.2d 818, 2010 N.D. LEXIS 113 (N.D. 2010).

District court erred in reversing an administrative hearing officer’s decision to suspend a driver’s driving privileges because an officer’s knocking on the driver’s vehicle window was within the scope of the officer’s community caretaking function and thus, was not an impermissible trespass on the driver’s property and was not an attempt to gather information that required a warrant. Bridgeford v. Sorel, 2019 ND 153, 930 N.W.2d 136, 2019 N.D. LEXIS 163 (N.D. 2019).

—Consent to Search.

The failure to object to a search is not a valid waiver of the constitutional right protected by this section. To be a valid waiver, it must clearly appear that the defendant voluntarily waived his rights and knowingly permitted the search by some express consent. State v. Manning, 134 N.W.2d 91, 1965 N.D. LEXIS 148 (N.D. 1965).

Where defendant delivered allegedly stolen suits to dry cleaners knowing they would be handled and examined by various people, a warrantless search of the dry cleaners with the manager’s permission was not improper. State v. Howe, 182 N.W.2d 658 (N.D. 1970), cert. denied, 403 U.S. 933, 91 S. Ct. 2261, 29 L. Ed. 2d 712 (1971), distinguished, State v. Matthews, 216 N.W.2d 90, 1974 N.D. LEXIS 259 (N.D. 1974).

Where police officers investigating a burglary found footprints in fresh snow leading away from the break-in site, followed the footprints to the door of defendant’s house, knocked, and when defendant answered asked him if he had been out of the house and whether they might see his shoes or boots, then, after defendant assented, determined that his boots had made the tracks they followed and arrested him, defendant’s rights under this section were not violated, even though the circumstances gave the officers no probable cause to search, because when they did so it was with defendant’s consent. State v. Metzner, 244 N.W.2d 215, 1976 N.D. LEXIS 239 (N.D. 1976).

Consent to a warrantless search may be given by one in custody, if the totality of the circumstances demonstrates that the consent is voluntarily given; statements by arresting officer, who had probable cause to make a warrantless arrest, that if defendants, who were in custody, did not give consent to a warrantless search of their vehicle the officer would “impound the vehicle” and “get a warrant to search it anyway” were not so inherently coercive as to make the consent given by the defendants involuntary. State v. Lange, 255 N.W.2d 59, 1977 N.D. LEXIS 273 (N.D. 1977).

Defendant claimed that she was unlawfully seized and that the search of her purse, in which drug paraphernalia was discovered, exceeded the scope of her consent to search, in violation of the Fourth and Fourteenth amendments; nevertheless, the supreme court determined that sufficient evidence existed in the record to support the trial court’s finding that defendant was not seized at the time she consented to the search, as the officer had returned her driver’s license to her, and he told her that she was free to leave; also, her consent to search was not exceeded by the search of her purse. State v. Guscette, 2004 ND 71, 678 N.W.2d 126, 2004 N.D. LEXIS 178 (N.D. 2004).

Trial court’s order denying the motion to suppress was not against the manifest weight of the evidence, as there was sufficient evidence to support the finding that appellant, a juvenile, consented to the officers’ entry of his house. In making that limited entry, the item which the officers believed to be drug paraphernalia was in plain view, and since they were in an area where they had a right to be, they had a right to seize it. State v. Guthmiller, 2004 ND 100, 680 N.W.2d 235, 2004 N.D. LEXIS 196 (N.D. 2004).

Where an officer told defendant that he would accompany him to the back of the apartment, defendant’s failure to object did not amount to a consent to search, and the consent given after defendant was in handcuffs was not valid because the arrest was based on improperly obtained evidence. Therefore, his conviction for possession of marijuana with intent to deliver was reversed. State v. Mitzel, 2004 ND 157, 685 N.W.2d 120, 2004 N.D. LEXIS 286 (N.D. 2004).

In a drug case, a court erred in failing to suppress evidence because defendant did not consent to a search of her entire home where she did not ask officers for help finding her inhaler, the officers did not specifically request defendant’s consent to search the home, the officers told her they would help and asked where she last had the inhaler, and in response to the officers’ question, defendant said it was probably in the den and where an officer then went upstairs to search for the inhaler. Even if defendant’s testimony that she told the officer that the inhaler was not upstairs was disregarded, a reasonable person would not believe her conduct showed consent to search her entire home. State v. Nelson, 2005 ND 11, 691 N.W.2d 218, 2005 N.D. LEXIS 9 (N.D. 2005).

Defendant’s consent to search his hotel room was voluntary where defendant voluntarily met with officers, they did not attempt to exert any physical control; defendant made a call on his cell phone during the interview which the officers did not attempt to prohibit; and defendant was not in custody at the time he gave consent. State v. Genre, 2006 ND 77, 712 N.W.2d 624, 2006 N.D. LEXIS 85 (N.D. 2006).

Defendant and codefendant’s convictions for drug offenses were affirmed where the trial court properly denied their motion to suppress evidence seized at their apartment because, although the codefendant had not verbally consented to a search of the apartment when the officers followed her into the apartment, the trial court properly concluded that the illegality of the officers’ initial entry into the apartment was purged by defendant’s subsequent written consent to search the apartment after consultation with an attorney. Defendant’s consultation with an attorney was an intervening circumstance that purged the taint of the prior violation of the protections of the Fourth Amendment and N.D. Const. art. I, § 8, against unreasonable searches. State v. Graf, 2006 ND 196, 721 N.W.2d 381, 2006 N.D. LEXIS 196 (N.D. 2006).

Trial court erred in concluding defendant’s consent to a search of his hotel room did not include the locked safe located in the room because, under N.D. Const. art. I, § 8 and U.S. Const. amend. IV, defendant gave general consent to a search of his hotel room for narcotics and failed at any time to limit the scope of the search. State v. Odom, 2006 ND 209, 722 N.W.2d 370, 2006 N.D. LEXIS 220 (N.D. 2006).

Trial court properly denied defendant’s motion to suppress evidence of drug paraphernalia that was found in an apartment that defendant shared with a roommate who was on probation where the roommate consented to a search of the apartment based on the terms in the probation conditions; the co-occupant consent-to-search exception to the warrant requirement applied in the case. State v. Hurt, 2007 ND 192, 743 N.W.2d 102, 2007 N.D. LEXIS 192 (N.D. 2007).

Defendant’s voluntary consent was an independent cause of the discovery of the challenged evidence and purged the taint of the illegal stop where, even though there was only 45 minutes between the illegal stop and defendant’s consent to the searches, other evidence indicated that the consent was sufficiently the act of free will, including: (1) defendant had been read his Miranda rights; (2) he was told he was not under arrest; (3) he was told he could refuse to consent to the searches; (4) he had been transported to a different location from where the unlawful police conduct occurred; (5) he was questioned by a different officer; (6) he was relaxed, cooperative, and complied with the officer’s requests; and (7) the officers did not use coercive or abusive tactics. State v. Torkelsen, 2008 ND 141, 752 N.W.2d 640, 2008 N.D. LEXIS 148 (N.D. 2008).

Where officers appeared at a home to search for persons involved in an assault, it was reasonable to conclude that the consent to search given by the person who admitted them was not limited but extended to the entire house because it was not reasonable to conclude that police officers searching for victims or perpetrators of an assault would search only half of the house. State v. Uran, 2008 ND 223, 758 N.W.2d 727, 2008 N.D. LEXIS 204 (N.D. 2008).

Defendant was not entitled to suppress evidence in a case where police were called to defendant’s residence by defendant’s girlfriend after defendant allegedly struck the girlfriend and removed her from the residence, but left her three young children inside the residence with defendant, who was intoxicated. Defendant’s Fourth Amendment, U.S. Const. amend. IV, and N.D. Const. art. I, § 8 rights to be free from unreasonable searches and seizures were not violated by one officer’s warrantless entry into the residence, as the girlfriend consented to that entry and, alternatively, exigent circumstances existed to justify the warrantless entry. State v. Morin, 2012 ND 75, 815 N.W.2d 229, 2012 N.D. LEXIS 80 (N.D. 2012).

Petitioner’s trial counsel was not ineffective when he failed to file a motion to suppress any and all evidence from the search of petitioner’s home because counsel specifically testified he believed there was no basis for a motion to suppress, that the police reports indicated that petitioner’s wife gave consent to search, and that neither petitioner’s wife nor petitioner ever expressed the consent was involuntary, and even if a suppression motion had been filed, the detective was merely conveying the factual reality of the situation, that if the wife did not act in a way to protect her child, social services would be notified. Kinsella v. State, 2013 ND 238, 840 N.W.2d 625, 2013 N.D. LEXIS 249 (N.D. 2013).

Defendant voluntarily consented to the search where, when asked permission to search the vehicle during a traffic stop, defendant said yes, and neither the condition of defendant nor the setting in which the consent was obtained indicated coercion. State v. Walker, 2015 ND 281, 871 N.W.2d 451, 2015 N.D. LEXIS 281 (N.D. 2015).

Police officer did not exceed the scope of his consent to search the vehicle in opening the trunk and searching the luggage contained therein where his communications with defendant touched on whether illegal items were located in the vehicle, and a search for hidden items would have extended to different parts of the vehicle and included unlocked bags in the trunk. State v. Walker, 2015 ND 281, 871 N.W.2d 451, 2015 N.D. LEXIS 281 (N.D. 2015).

District court's findings that a police officer's entry into defendant's bedroom was to secure defendant, and that the officer did not use that opportunity to look for evidence of illegal activity was supported by the record. Suppression was not warranted because the officer discovered drug paraphernalia after legally detaining defendant and receiving his consent to search. State v. Schmidt, 2016 ND 187, 885 N.W.2d 65, 2016 N.D. LEXIS 177 (N.D. 2016).

Driving privileges were properly suspended for driving under the influence because there was no violation of the United States or North Dakota Constitutions relating to search and seizure; being informed of the penalties under the state implied consent laws did not amount to coercion, and the reading of the advisory prior to the onsite screening test was also not coercive. Rounkles v. Levi, 2015 ND 128, 863 N.W.2d 910, 2015 N.D. LEXIS 117 (N.D. 2015), cert. denied, — U.S. —, 136 S. Ct. 2539, 195 L. Ed. 2d 868, 2016 U.S. LEXIS 4285 (U.S. 2016).

Because a driver pointed to no authority for his interpretation of the implied-consent law, the supreme court did not consider adequately briefed the issue that his license revocation violated the constitution and did not address the issue; unless the driver could show the North Dakota Constitution's search and seizure provision provided more protection than the Fourth Amendment of the federal constitution, his argument failed. Koehly v. Levi, 2016 ND 202, 886 N.W.2d 689, 2016 N.D. LEXIS 207 (N.D. 2016).

District court did not err in denying defendant’s motion to suppress because defendant voluntarily consented to giving his clothing to the law enforcement officers. State v. Brickle-Hicks, 2018 ND 194, 916 N.W.2d 781, 2018 N.D. LEXIS 208 (N.D. 2018).

Because defendant mumbled, nodded, and lifted his hands according to the officer’s testimony, those actions taken together would allow an objectively reasonable person to understand defendant was consenting to a search of his person; thus, sufficient competent evidence existed showing defendant consented to the search of his person, and the district court’s finding that defendant consented was not contrary to the manifest weight of the evidence. State v. Stands, 2021 ND 46, 956 N.W.2d 366, 2021 N.D. LEXIS 43 (N.D. 2021).

—Dog Sniff Searches.

Where defendant sought to suppress evidence obtained by searching various packages to be delivered by a delivery company and his home, suppression was denied as reasonable suspicion supported the seizure where a delivery company employee reported to police suspicious packages, the police arrived with a canine unit and drug-sniffing dogs alerted to one of the defendant’s packages and alerted a second time when the same package was hidden from the dog. A seizure would have occurred at the time the package was delayed in its delivery, which may have occurred at the time of the second testing of the package; however, since the dog had already alerted to the package prior to that time, reasonable suspicion existed at that point to seize the package. Because there was no evidence that would cause a reasonable officer to doubt the validity of the dog’s first alert, the dog’s first alert created reasonable suspicion, which permitted the police to seize the package for investigation. United States v. Zacher, 465 F.3d 336, 2006 U.S. App. LEXIS 25356 (8th Cir. N.D. 2006).

District court did not err in concluding that defendant's N.D. Const. art. I, § 8, rights were not violated where his actions leaving the train station justified the officers' reasonable suspicion to temporarily seize the backpack to conduct a dog sniff. State v. Hall, 2017 ND 124, 894 N.W.2d 836, 2017 N.D. LEXIS 120 (N.D. 2017).

—Emergency Doctrine.

An officer’s entry into defendant’s garage was valid and proper and did not constitute an unreasonable search, where the officer observed defendant lying in his open garage beside his car and, based upon his observation and additional information received by a witness, the officer’s entry was made more for the purpose of rendering aid to a possibly ill person than to look for evidence of a crime. Lubenow v. North Dakota State Highway Comm'r, 438 N.W.2d 528, 1989 N.D. LEXIS 67 (N.D. 1989).

The emergency doctrine allows police to enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress. City of Fargo v. Ternes, 522 N.W.2d 176, 1994 N.D. LEXIS 216 (N.D. 1994).

Where police officers testified they knew defendant was in a serious accident and that a great deal of blood was inside the pickup truck which led to the front door of the trailer, and fearing defendant was badly injured and unable to answer, the officer decided to enter, and where defendant confirmed these fears when he testified that he did not know what he would have done if the officers had not arrived, under these circumstances, the trial court found the officers reasonably believed an emergency was present. City of Fargo v. Ternes, 522 N.W.2d 176, 1994 N.D. LEXIS 216 (N.D. 1994).

Actions of sheriff's deputies fell within the emergency exception to the Fourth Amendment protections from unreasonable searches and seizures, justifying a warrantless entry into defendant's residence. The facts supported the district court's conclusion that it was reasonable for the deputies to believe defendant's father was in immediate need of assistance. State v. Karna, 2016 ND 232, 887 N.W.2d 549, 2016 N.D. LEXIS 222 (N.D. 2016).

District court properly denied defendant’s motion to suppress evidence because a police officer’s direct and contemporaneous observations supported his entry into defendant’s home, and thus, the officer’s entry was justified under the emergency exception to the warrant requirement. the officer had a reasonable basis to believe there was an ongoing emergency before entering defendant’s home because he was concerned defendant could have been ambushed or that defendant could have harmed himself. State v. Komrosky, 2019 ND 300, 936 N.W.2d 82, 2019 N.D. LEXIS 299 (N.D. 2019).

Defendant’s first motion to suppress was properly denied as the deputies had reasonable grounds to believe that there was an emergency at hand and an immediate need for their assistance for the protection of life or property as a neighbor reported hearing a person throwing objects, angrily yelling, and making threats to kill everyone inside defendant’s apartment. State v. Black, 2021 ND 103, 960 N.W.2d 820, 2021 N.D. LEXIS 97 (N.D. 2021).

—Probationary Search.

Because the probationer was subject to a search condition and law enforcement had reasonable suspicion, based on the report they received, to believe the residence contained firearms, which was a probation violation, law enforcement had authorization to enter and search the residence where defendant was a guest. State v. West, 2020 ND 74, 941 N.W.2d 533, 2020 N.D. LEXIS 75 (N.D. 2020).

—Exigent Circumstances.

— —In General.

To the extent that State v. Meadows, 260 N.W.2d 328 (N.D. 1977), can be read to require something more than mobility for exigent circumstances, the court overruled that part of its decision in that case. State v. Zwicke, 2009 ND 129, 767 N.W.2d 869, 2009 N.D. LEXIS 128 (N.D. 2009).

Defendant’s motion to suppress was properly denied as the State presented sufficient evidence to conclude that law enforcement had a reasonable and articulable suspicion that defendant was engaged or about to engage in criminal activity because a narcotics task force officer testified that while he was off duty, he observed defendant traveling to a local park known for drug use and sales; previous reports labeled defendant as part of the drug trade in the park; and law enforcement cameras set up in the area captured images of his truck in the area on numerous occasions; thus, the intrusion of defendant’s constitutional rights, and the scope of the intrusion was reasonably related to the circumstances which justified the interference. State v. Casson, 2019 ND 216, 932 N.W.2d 380, 2019 N.D. LEXIS 222 (N.D. 2019).

— —Not Shown.

Officers’ testimony about the feared destruction of evidence, upon which they based their right to enter a home without a warrant, was nothing more than speculation and did not demonstrate exigent circumstances so as to overcome the presumption of unreasonableness that attaches to all warrantless home entries. State v. Ackerman, 499 N.W.2d 882, 1993 N.D. LEXIS 87 (N.D. 1993).

Exigent circumstances did not exist for warrantless, nonconsensual search of home; the class B misdemeanors committed in presence of officers were minor offenses that did not create exigent circumstances. City of Fargo v. Lee, 1998 ND 126, 580 N.W.2d 580, 1998 N.D. LEXIS 142 (N.D. 1998).

Evidence was gained in violation of the Fourth Amendment and this section and should have been suppressed where police officer did not have young girl’s implied consent to enter an apartment by her mere act of opening the door; furthermore, exigent circumstances did not exist when a scuffle ensued between two of the apartment’s occupants given that the altercation arose because of the officer’s inappropriate presence in the apartment. City of Jamestown v. Dardis, 2000 ND 186, 618 N.W.2d 495, 2000 N.D. LEXIS 202 (N.D. 2000).

Motion to suppress should have been granted in a drug case, pursuant to U.S. Const. amend. IV and N.D. Const. art. I, § 8, because a plain view of marijuana plants did not justify a warrantless search of a residence, and the need to prevent the destruction of evidence and to protect officer safety were rejected as exigent circumstances justifying a walk through. Marijuana plants remained in view from the time of a report until the surveillance days later, and any limitations on law enforcement entry could have been eliminated during the ample time to secure a warrant. State v. Gagnon, 2012 ND 198, 821 N.W.2d 373, 2012 N.D. LEXIS 204 (N.D. 2012).

Defendants’ convictions for conspiracy to deliver controlled synthetic cannabinoids were inappropriate because the district court erred in denying their motions to suppress; the agent testified the officers could have applied for a warrant, but did not. The facts did not rise to the level of exigent circumstances justifying the warrantless seizure of the package at the shipping store and the district court erred in relying on plain view or exigent circumstances to justify the warrantless seizure of the package at the store; the record did not establish the immediate incriminating character of the seized evidence, and the State cited no exigent circumstances justifying the warrantless seizure of the package at the store. State v. Nickel, 2013 ND 155, 836 N.W.2d 405, 2013 N.D. LEXIS 143 (N.D. 2013).

District court erred in finding the warrantless entry of defendant's home fell within the emergency exception to the warrant requirement where nine hours had passed between the initial report that defendant may have been suicidal and the warrantless entry, the deputies knew the information had passed through multiple people by the time it reached them, nothing the deputies directly observed corroborated the comments, and the report of suicidal comments was too vague to show a need for immediate assistance. State v. Hyde, 2017 ND 186, 899 N.W.2d 671, 2017 N.D. LEXIS 195 (N.D. 2017).

— —Shown.

Warrantless search was justified by exigent circumstances when police, after receiving a report that defendant had been abducted at gunpoint, entered defendant’s home to search for information that might identify his location. State v. Matthews, 2003 ND 108, 665 N.W.2d 28, 2003 N.D. LEXIS 125 (N.D. 2003).

District court did not err in affirming the decision of the Department of Transportation, which suspended a driver's privileges, because the Department established an exception to the warrant requirement by establishing that the driver freely and voluntarily consented to a breath test after he officer read him the implied consent advisory; a driver's decision to agree to take a test is not coerced simply because an administrative penalty has been attached to refusing the test. McCoy v. North Dakota DOT, 2014 ND 119, 848 N.W.2d 659, 2014 N.D. LEXIS 134 (N.D. 2014).

There was sufficient evidence to support the district court's decision that exigent circumstances permitted the warrantless blood-alcohol test because the circumstances included evidence about the limited staffing at law enforcement agencies on the evening of the Thanksgiving holiday, the investigation of a fatal accident rather than a “routine” drunk driving stop, and the natural dissipation of alcohol in defendant's blood system within the relevant timeframe. State v. Morales, 2015 ND 230, 869 N.W.2d 417, 2015 N.D. LEXIS 248 (N.D. 2015).

Driver voluntarily consented to a chemical blood test administered by a police officer. The criminal refusal statute, N.D.C.C. § 39-08-01, did not violate the driver's rights under the Fourth Amendment or N.D. Const. art. I, § 8, nor did it violate the Fourth Amendment under the doctrine of unconstitutional conditions. Beylund v. Levi, 2015 ND 18, 859 N.W.2d 403, 2015 N.D. LEXIS 19 (N.D. 2015).

Defendant's motion to suppress a rifle obtained from a home was properly denied where the home had been burned, a fireman had removed the rifle for safekeeping and protection of the first responders, and thus, the rifle was admissible under the emergency exception to the warrant requirement. State v. Friesz, 2017 ND 177, 898 N.W.2d 688, 2017 N.D. LEXIS 164 (N.D. 2017).

Although a police officer was informed from a first responder that defendant smelled of alcohol following a fatal car accident, the officer was unable to get close enough to defendant to personally observe him because defendant was receiving life-saving medical treatment at the scene of the accident. The district court’s ruling that exigent circumstances permitted a warrantless blood-alcohol test was supported by sufficient competent evidence in the record and was not against the manifest weight of the evidence. State v. Sauter, 2018 ND 75, 908 N.W.2d 697, 2018 N.D. LEXIS 78 (N.D. 2018).

—Game-and-fish Checkpoint.

Weighing the State’s compelling interest in preserving its wildlife, the effectiveness of the method used to advance that interest, and the minimal level of intrusiveness, the North Dakota Supreme Court determined that a game-and-fish checkpoint was constitutional. State v. Albaugh, 1997 ND 229, 571 N.W.2d 345, 1997 N.D. LEXIS 278 (N.D. 1997).

Under N.D.C.C. § 20.1-02-15.1, when police officers and game wardens are working together as a team on a game-and-fish checkpoint, the game officer has the “team” power of a police officer, including the authority to detain a driver briefly for further investigation after seeing open beer cans in a vehicle. State v. Albaugh, 1997 ND 229, 571 N.W.2d 345, 1997 N.D. LEXIS 278 (N.D. 1997).

—Hot pursuit.

Police officer had probable cause that defendant was fleeing or attempting to elude him under N.D.C.C. § 39-10-71, which is not a minor, nonjailable offense, and the officer’s warrantless, limited entry into defendant’s open garage while in hot pursuit of defendant was reasonable. The district court erred in granting defendant’s motion to suppress evidence for a violation of her rights under either the Fourth Amendment or N.D. Const. art. I, § 8. City of Bismarck v. Brekhus, 2018 ND 84, 908 N.W.2d 715, 2018 N.D. LEXIS 88 (N.D. 2018), cert. denied, — U.S. —, 139 S. Ct. 187, 202 L. Ed. 2d 115, 2018 U.S. LEXIS 5452 (U.S. 2018), overruled in part, Lange v. California, — U.S. —, 141 S. Ct. 2011, 210 L. Ed. 2d 486, 2021 U.S. LEXIS 3396 (U.S. 2021).

—Independent Source Doctrine.

Although a police officer entered a constitutionally protected space when she stepped into a hotel room without a search warrant and without exigent circumstances, the district court did not err in applying the independent-source doctrine, as the search warrant affidavit, excised of its tainted information, was supported by probable cause derived from sources independent of the illegal search. State v. Kuruc, 2014 ND 95, 846 N.W.2d 314, 2014 N.D. LEXIS 97 (N.D. 2014).

Because the unchallenged second search warrant for defendant’s previous residence was based on the results of the detective’s valid trash pull conducted at the property before obtaining the unlawful search warrant for a package, and the detective discovered controlled substances in bags together with documents bearing defendant’s name and information, the second search warrant was supported by probable cause independent of the package, and the detective’s decision to seek the second warrant was not prompted by observations made while searching the package. Because the second and third warrants were based on probable cause derived from independent sources, the fruit of the poisonous tree doctrine was not applied to suppress the evidence. State v. Biwer, 2018 ND 185, 915 N.W.2d 837, 2018 N.D. LEXIS 193 (N.D. 2018).

—Inventory Search.

Where defendant was not arrested but was taken into custody for detoxification, it was proper for police officer at the jail to make a warrantless examination of the contents of defendant’s wallet as part of a routine inventory search conducted pursuant to standard jail procedure and to make a warrantless seizure of a piece of paper found in the wallet where the officer had probable cause to believe the paper contained illegal drugs. State v. Gelvin, 318 N.W.2d 302, 1982 N.D. LEXIS 326 (N.D.), cert. denied, 459 U.S. 987, 103 S. Ct. 341, 74 L. Ed. 2d 383, 1982 U.S. LEXIS 4231 (U.S. 1982).

The warrantless search of and resultant seizure of evidence from a wallet were within the inventory-search exception to the warrant requirement where there was unrebutted testimony that the search conducted at the jail after defendant’s arrest was to inventory the contents of the wallet and there was no evidence that inventorying the wallets of arrested persons at the jail was not a standard jailhouse procedure; legality of the inventory search and resultant seizure was not altered by fact that a drug enforcement agent, who was present during the inventory search and who seized the evidence from the wallet, may have had an investigative as well as an inventory purpose in searching the wallet. State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

Evidence seized during an inventory search of a motor vehicle was admissible because the officer’s decision to impound the vehicle was based on legitimate caretaking concerns related solely to the purposes of an impoundment and thus, did not run afoul of the Constitution and because the inventory search, during which the officer opened four duffle bags found in the vehicle, was conducted in accordance with standardized procedures employed by the highway patrol. United States v. Le, 402 F. Supp. 2d 1068, 2005 U.S. Dist. LEXIS 30520 (D.N.D. 2005), aff'd, 474 F.3d 511, 2007 U.S. App. LEXIS 1329 (8th Cir. N.D. 2007).

Police officer had probable cause to believe that paper contained illegal drugs and properly made a warrantless seizure of the paper for chemical testing where, pursuant to a valid inventory search conducted after defendant had been taken into custody for detoxification, police officer found a small piece of paper in defendant’s wallet that contained the same design as similar pieces of paper containing LSD that the officer had seen at a drug seminar, and a third party had informed the officer that defendant had come uninvited into her home, assaulted her, shown her a small piece of paper stating that it contained LSD, and the officer found the defendant unconscious in the third party’s home. State v. Gelvin, 318 N.W.2d 302, 1982 N.D. LEXIS 326 (N.D.), cert. denied, 459 U.S. 987, 103 S. Ct. 341, 74 L. Ed. 2d 383, 1982 U.S. LEXIS 4231 (U.S. 1982).

— —Reasonableness of Stop.

District court erred in denying defendant’s motion to suppress evidence because his state and federal constitutional rights were violated where, while the criminal histories of defendant and his passenger were appropriately considered, the deputy who made the stop did not possess reasonable suspicion of further criminal activity to justify detaining and searching the vehicle after the traffic stop ended where, after eliminating the deputy’s speculation and untethered hunches, the only instance of nervous behavior was the passenger’s smoking upon the initial approach, the record lacked information supporting a guess that the route they were traveling was for an unlawful purpose. State v. Wills, 2019 ND 176, 930 N.W.2d 77, 2019 N.D. LEXIS 172 (N.D. 2019).

—Investigatory Stop.

In a drug case, defendant was not illegally seized under the United States and North Dakota Constitutions since the length of a traffic stop was related to the officer's performance of his duties; he checked driver's licenses, checked for outstanding warrants, and spoke with two individuals about their trip. Approximately twelve minutes elapsed from the time of the stop to the time the officer was given consent to search the vehicle, and the driver was not issued a warning or citation before consent was given to search. State v. Asbach, 2015 ND 280, 871 N.W.2d 820, 2015 N.D. LEXIS 275 (N.D. 2015).

Because the purposes of the traffic stop had not been completed when the officer asked defendant if he had anything on him and if she could search him as the officer had not issued defendant a warning or a ticket, and defendant did not claim that the officer deliberately delayed the stop so a drug dog could arrive on the scene, the officer’s questions did not prolong or measurably extend the traffic stop. State v. Stands, 2021 ND 46, 956 N.W.2d 366, 2021 N.D. LEXIS 43 (N.D. 2021).

—Reasonable Suspicion.

Because the consensual search of defendant’s person resulted in the discovery of the silver scale with methamphetmine residue on it, a reasonable person in the officer’s position would be justified in inferring defendant was or was about to be engaged in unlawful activity by the discovery of the scale in his pocket, which provided the officer with reasonable suspicion to continue defendant’s detention at the scene until a drug dog could arrive. State v. Stands, 2021 ND 46, 956 N.W.2d 366, 2021 N.D. LEXIS 43 (N.D. 2021).

— —In General.

Defendant’s motion to suppress was properly denied as the search was constitutionally reasonable because the search was supported by reasonable suspicion of unlawful activity by defendant’s roommate for failing to report to probation officers and authorized by a condition of probation subjecting the home to a warrantless search; and the discovery a scale in plain view in one of the bedrooms, which was linked to defendant, allowed the officers to expand the search during which the officers recovered several items of contraband, including paraphernalia, drugs and a firearm. State v. White, 2018 ND 266, 920 N.W.2d 742, 2018 N.D. LEXIS 273 (N.D. 2018).

Defendant’s motion to suppress was properly denied because the deputy observed enough to give him a reasonable and articulable suspicion of actual physical control of a motor vehicle while under the influence of alcohol as, when defendant exited her vehicle, the deputy observed that she had difficulty maintaining her balance, her eyes were watery, and her speech was slurred; and, upon defendant’s entering the front passenger seat of the patrol vehicle, the deputy detected a strong odor of alcoholic beverages and felt that defendant seemed extremely confused when answering his initial questions. State v. Foote, 2020 ND 266, 952 N.W.2d 37, 2020 N.D. LEXIS 265 (N.D. 2020).

Deputies’ observations of defendant leaving a suspected house party, getting into a vehicle, and starting the engine, along with a deputy’s testimony that he could smell an odor of alcohol coming from defendant’s breath and that defendant had bloodshot, watery eyes and slurred speech, were sufficient to provide a reasonable and articulable suspicion that defendant had committed the offense of actual physical control while in the driveway, justifying further investigative detention. Moreover, defendant had voluntarily followed the deputies into the backyard, the house sitter had consented to the deputies’ entry into the house and back yard, and defendant’s voluntarily accompanying the deputies to the backyard did not remove the suspicion regarding his earlier action of getting into a vehicle and starting the engine. State v. Casatelli, 2021 ND 11, 953 N.W.2d 656, 2021 N.D. LEXIS 8 (N.D. 2021).

— —Anonymous Tip.

Reversal of the Department of Transportation’s suspension of a driver’s driver’s license was proper as an anonymous tip regarding a possible reckless or drunk driver relayed to the arresting officer through the dispatcher did not provide the officer with the necessary reasonable and articulable suspicion under U.S. Const. amend. IV to support the stop of the driver’s vehicle. Anderson v. Dir., N.D. DOT, 2005 ND 97, 696 N.W.2d 918, 2005 N.D. LEXIS 100 (N.D. 2005).

District court properly denied defendant’s motion to suppress where the combination of the detailed information from the 911 caller and the officer’s corroboration of the location and description of the vehicle was sufficient to raise a reasonable and articulable suspicion of potential criminal activity, i.e., driving under the influence, to justify an investigative stop. The officer was not required to perform any additional surveillance to further corroborate the caller’s information. State v. Hendrickson, 2019 ND 183, 931 N.W.2d 236, 2019 N.D. LEXIS 189 (N.D. 2019).

— —Known Informant.

Officers had a reasonable and articulable suspicion to stop defendant’s vehicle based on information received by an informant where the informant was a known informant who voluntarily gave an officer information on prior occasions, he did not ask for anything in exchange for the information, and he was not at risk of going to jail in connection with this incident. In addition, a citizen informant provided information regarding the possession of a rifle in defendants’ vehicle. State v. Anderson, 2006 ND 44, 710 N.W.2d 392, 2006 N.D. LEXIS 48 (N.D. 2006).

Order granting appellee’s motion to suppress evidence obtained after a law enforcement officer stopped appellee’s vehicle was reversed, where the officer had a reasonable and articulable suspicion to stop the vehicle. Because information from appellee’s husband provided a factual basis for the stop, the officer did not need to observe impaired driving. City of Dickinson v. Hewson, 2011 ND 187, 803 N.W.2d 814, 2011 N.D. LEXIS 182 (N.D. 2011).

—Reasonableness of Stop.

Requiring driver of a vehicle legitimately stopped by a police officer for a speeding violation to get inside police car during issuance of a speeding citation does not violate driver’s Fourth Amendment rights against unreasonable searches and seizures; and, observations by police officer while driver is in police car may be sufficient to establish probable cause to arrest driver for DUI. State v. Mertz, 362 N.W.2d 410, 1985 N.D. LEXIS 255 (N.D. 1985).

Investigatory stop did not become an arrest where, although defendants were made to lie handcuffed on the ground after the stop, police had information that they were heavily armed, on their way to a known drug dealer’s home, and therefore, officers’ fear for their personal safety was reasonable and justified the safety precautions used to remove defendants from the vehicle. State v. Anderson, 2006 ND 44, 710 N.W.2d 392, 2006 N.D. LEXIS 48 (N.D. 2006).

Following an investigatory stop, defendant’s continued seizure was not unreasonable where the deputy testified that upon approaching the vehicle he saw a rifle on the backseat and an open beer can, the deputy noticed the odor of alcohol emanating from the vehicle, and defendant had bloodshot eyes and appeared to be nervous. Those observations were sufficient to create a reasonable suspicion that criminal activity was afoot and to justify expanding the scope of the stop. State v. Genre, 2006 ND 77, 712 N.W.2d 624, 2006 N.D. LEXIS 85 (N.D. 2006).

Where an officer conducting a traffic stop reasonably suspected that defendant was driving while intoxicated, where the officer asked defendant to submit to field sobriety tests and defendant agreed, but where the officer transported defendant to the police station to perform the sobriety tests because it was cold outside, the transportation of defendant constituted a seizure and was a de facto arrest. Because the officer’s reasonable suspicion of wrongdoing was insufficient to support a valid arrest and because the officer lacked probable cause, the de facto arrest violated defendant’s Fourth Amendment rights, and the trial court properly granted defendant’s motion to suppress evidence. City of Devils Lake v. Grove, 2008 ND 155, 755 N.W.2d 485, 2008 N.D. LEXIS 155 (N.D. 2008).

—Particular Cases.

Police officers had probable cause to stop an automobile for investigatory purposes where the officers observed the automobile being driven in a weaving manner within its own lane of traffic. State v. Dorendorf, 359 N.W.2d 115, 1984 N.D. LEXIS 445 (N.D. 1984).

Officer had reasonable suspicion to stop a vehicle where, combined with tip information, defendant’s “hesitation” at stop sign was long enough to reasonably justify investigation. State v. Guthmiller, 499 N.W.2d 590, 1993 N.D. LEXIS 66 (N.D. 1993).

Although the officers were not justified in stopping car based on an identification of the driver, they could have been justified in the stop if they had a reasonable and articulable suspicion the vehicle in question belonged to person whose license was suspended. State v. Kenner, 1997 ND 1, 559 N.W.2d 538, 1997 N.D. LEXIS 7 (N.D. 1997).

The officer reasonably relied on his memory of a note posted in the sheriff’s office stating juvenile defendant’s probationary status curfew and his radio confirmation of that note when stopping defendant. State v. Jesfjeld, 1997 ND 23, 559 N.W.2d 543, 1997 N.D. LEXIS 24 (N.D. 1997).

Defendant was not under arrest when asked to sit in police cruiser for questioning regarding allegations of domestic violence. The encounter constituted a reasonable suspicion or investigatory stop based on a reasonable suspicion of criminal activity by the defendant. State v. Boline, 1998 ND 67, 575 N.W.2d 906, 1998 N.D. LEXIS 74 (N.D. 1998).

Where officer was notified that a fight was going to begin at a bar, officer’s reasonable and articulable suspicion that individual driving from the parking lot had committed offense of disorderly conduct was sufficient to justify a temporary detention of that individual for investigative purposes. City of Devils Lake v. Lawrence, 2002 ND 31, 639 N.W.2d 466, 2002 N.D. LEXIS 22 (N.D. 2002).

Where the evidence established that an officer spotted a car parked near a once burglarized anhydrous ammonia storage yard, there were no other homes or businesses nearby, and the occupants were outside the vehicle with a flashlight, there was reasonable suspicion to stop the car. State v. Corum, 2003 ND 89, 663 N.W.2d 151, 2003 N.D. LEXIS 103 (N.D. 2003).

Officer had probable cause to believe defendant was driving under the influence of drugs, as defendant’s van was weaving in his lane and was crossing over the yellow line separating the driving lane and turning lane; defendant was belligerent, physically aggressive, and repeatedly used profanity toward officers; throughout a traffic stop, defendant was shaking, pacing back and forth, and could not keep still; defendant failed a light reactivity test; and the officer did not notice an odor of alcohol emanating from defendant; thus, the trial court did not err in denying the motion to suppress evidence found during a search incident to defendant’s arrest. State v. Berger, 2004 ND 151, 683 N.W.2d 897, 2004 N.D. LEXIS 280 (N.D. 2004).

Police officer’s act of following defendant for approximately 12 city blocks after the officer had confirmed the vehicle’s license plate and determined that the vehicle was not stolen did not abrogate any legally sufficient basis for the stop where the officer stopped defendant’s vehicle after observing defendant’s erratic driving. It is not unreasonable, as a matter of law, for an officer to follow a vehicle for a distance before making a stop. State v. Jackson, 2005 ND 14, 691 N.W.2d 250, 2005 N.D. LEXIS 22 (N.D. 2005).

There was no reasonable and articulable suspicion to justify stop of defendant’s vehicle after leaving a parking lot based upon the report of two citizens who approached defendant’s vehicle while he was sitting in the parking lot and observed him quickly pulling out of the parking lot where there was no testimony the police chief receiving the report knew the citizens or their veracity, 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. The flight from the lot after being approached in the dark by two persons unknown to defendant was more reasonable and less suspicious than someone’s fleeing from a marked police vehicle and defendant’s sitting in the parking lot, by itself, was not sufficient to justify the stop. State v. Smith, 2005 ND 21, 691 N.W.2d 203, 2005 N.D. LEXIS 20 (N.D. 2005).

Officer had probable cause to stop defendant’s vehicle when he observed that defendant had tinted windows, in violation of N.D.C.C. § 39-21-39, even though the officer had received word to stop the vehicle based on an anonymous tip. Although the traffic violation was a pretext for the stop, the stop was not unconstitutional. State v. Bartelson, 2005 ND 172, 704 N.W.2d 824, 2005 N.D. LEXIS 205 (N.D. 2005).

Trial court properly overturned an order suspending appellee’s driving privileges for 91 days for driving under the influence of alcohol where the fact that appellee was driving 8-10 miles per hour in a 25 mile per hour zone at 12:43 a.m. did not provide the requisite reasonable and articulable suspicion to justify stopping his vehicle. Johnson v. Sprynczynatyk, 2006 ND 137, 717 N.W.2d 586, 2006 N.D. LEXIS 144 (N.D. 2006).

Where a witness identified the driver of a white car as the person who had just started a fire and police observed that same car driving erratically, an investigatory stop was properly conducted because there was a reasonable articulable suspicion of criminal activity under the totality of the circumstances. K.H. v. K.H. (In the Interest of K.H.), 2006 ND 156, 718 N.W.2d 575, 2006 N.D. LEXIS 157 (N.D. 2006).

Officer did not have a reasonable and articulable suspicion to justify stop of defendant’s vehicle, and, pursuant to the Fourth Amendment and N.D. Const. art. I, § 8, the trial court improperly denied defendant’s motion to suppress the evidence obtained during the search of the vehicle where there was no evidence of erratic driving or speeding, and the temporary registration sticker displayed on the vehicle pursuant to N.D.C.C. § 39-04-17 did not appear to be unusual. The officer had stopped the vehicle because, in his experience, many people drove on the sticker beyond the 30 days that was allotted; however, the officer’s belief that many people violated the 30-day temporary registration law was an over-generalization that did not give rise to reasonable suspicion that defendant’s automobile was not lawfully registered. State v. Johnson, 2006 ND 248, 724 N.W.2d 129, 2006 N.D. LEXIS 244 (N.D. 2006).

Where a trooper observed defendant commit traffic violations by crossing the center and fog lines of a two-lane highway, there was a reasonable and articulable suspicion for initiating a traffic stop in a driving under the influence case. Moreover, the trooper’s onboard camera captured video images of such, corroborating the trooper’s testimony. State v. Bachmeier, 2007 ND 42, 729 N.W.2d 141, 2007 N.D. LEXIS 43 (N.D. 2007).

Because N.D.C.C. § 39-21-21 prohibited any use of high-beam headlights within 500 feet of an oncoming vehicle, a deputy had reasonable suspicion to stop defendant for violating the statute; the deputy testified that he was about an eighth of a mile away from defendant’s vehicle when the flashing began. The trial court reasoned that the parties were moving and would have entered the 500-foot zone pretty quickly; thus, the investigative stop of defendant’s vehicle was constitutionally permissible, and her motion to suppress evidence was properly denied. State v. Westmiller, 2007 ND 52, 730 N.W.2d 134, 2007 N.D. LEXIS 51 (N.D. 2007).

Prior to executing a right or left turn upon a roadway, a driver must give an appropriate signal and must ascertain that the turn can be made with reasonable safety. Therefore, in a driving under the influence case, a motion to suppress evidence was properly denied since there was no violation of the Fourth Amendment or N.D. Const. art. I, § 8; an officer had the requisite grounds to make a valid investigative stop of a vehicle because defendant had violated N.D.C.C. § 39-10-38(1) by failing to signal a turn. State v. Fasteen, 2007 ND 162, 740 N.W.2d 60, 2007 N.D. LEXIS 159 (N.D. 2007).

Officer had reasonable suspicion to stop defendant’s vehicle, because the officer’s knowledge of the prior driver’s license suspension one month earlier was not too stale to support a reasonable suspicion of unlawful activity, and the officer observed defendant operating a vehicle with no license plates and no viewable registration sticker. State v. Skarsgard, 2007 ND 160, 739 N.W.2d 786, 2007 N.D. LEXIS 166 (N.D. 2007).

In a case involving a license suspension based on a driving under the influence (DUI) case, there was no violation of a licensee’s rights under the Fourth Amendment or N.D. Const. art. I, § 8; regardless of whether an officer’s initial encounter with the licensee in his front yard constituted a seizure, the officer had a reasonable and articulable suspicion to stop the licensee to investigate a citizen’s complaint regarding erratic driving based partially on the specific description of the car and the fact that the citizen followed the car and waited until police arrived. Further, the officer had probable cause to arrest the licensee for DUI where the licensee failed sobriety tests, had bloodshot and glassy eyes, and admitted to drinking. Sayler v. N.D. DOT, 2007 ND 165, 740 N.W.2d 94, 2007 N.D. LEXIS 158 (N.D. 2007).

In a DUI case, denial of defendant’s motion to suppress evidence obtained during a traffic stop was proper because the vehicle, without license plates and only with an 8 1/2 x 11 sheet of paper in the rear window, provided a reasonable and articulable suspicion to justify stopping the vehicle; the officer did not recognize the sheet of paper as an authentic temporary registration certificate, from the state or another state, and thus he had reasonable grounds to stop the driver and check if the driver had a valid temporary registration certificate in his possession in accordance with state law. City of Grand Forks v. Mitchell, 2008 ND 5, 743 N.W.2d 800, 2008 N.D. LEXIS 6 (N.D. 2008).

Trial court erred in granting defendant’s motion to suppress all evidence obtained from a traffic stop where a first police officer’s uncorroborated communication that defendant was intoxicated, together with a second officer’s observation of defendant driving, was sufficient to establish reasonable and articulable suspicion to stop defendant’s vehicle. City of Minot v. Keller, 2008 ND 38, 745 N.W.2d 638, 2008 N.D. LEXIS 38 (N.D. 2008).

When a patrol officer testified that he clocked a driver traveling at 36 miles per hour in a 25-mile-per-hour zone, the officer had a reasonable, articulable suspicion to stop the driver. It was not necessary to provide evidence that the radar was working properly or that the officer was certified to operate the radar device. Although N.D.C.C. § 39-03-15 requires the results of a radar speed check be accepted as prima facie evidence of the speed of the motor vehicle, the officer’s testimony was not offered for purposes of establishing a conviction for a speeding violation but was instead offered to establish that a reasonable person in the officer’s position would be justified by some objective manifestation to suspect potential unlawful activity. Sturn v. Dir., N.D. DOT, 2009 ND 39, 763 N.W.2d 515, 2009 N.D. LEXIS 53 (N.D. 2009).

When a deputy sheriff responded to a call that people were causing a disturbance at a bar, he approached the only vehicle in the parking lot without activating his red lights and spoke to the driver; a seizure did not occur when the deputy requested that the driver unlock the door and exit the pickup. After the deputy noticed that the driver’s eyes were bloodshot and that he was slurring his speech, the driver’s rights under N.D. Const. art. I, § 8 were not violated when the deputy asked the driver for the second time to exit the vehicle; by then the deputy had reasonable suspicion that he was in actual physical control of a vehicle while under the influence of alcohol. Abernathey v. DOT, 2009 ND 122, 768 N.W.2d 485, 2009 N.D. LEXIS 129 (N.D. 2009).

District court incorrectly determined the stop of defendant’s vehicle violated her constitutional right against unreasonable seizure, U.S. Const. amend. IV and N.D. Const. art. I, § 8, as the deputy had an objectively reasonable basis to stop defendant for violating N.D.C.C. § 39-04-11 because her vehicle displayed expired registration tabs. State v. McLaren, 2009 ND 176, 773 N.W.2d 416, 2009 N.D. LEXIS 189 (N.D. 2009).

In a murder case, the stop of defendant was proper because officers had reasonable suspicion; the stop occurred within minutes of the fight and stabbing incidents being reported, the vehicle was located in a private elementary school parking lot and was not merely passing through, there were no other vehicles in the area at the time, dispatch notified the officers that a black male was seen leaving the scene, and both officers observed a black male in the passenger seat who matched the description of the suspect. State v. Addai, 2010 ND 29, 778 N.W.2d 555, 2010 N.D. LEXIS 24 (N.D. 2010), overruled in part, State v. Decker, 2018 ND 43, 907 N.W.2d 378, 2018 N.D. LEXIS 56 (N.D. 2018).

Trial court properly denied defendant’s motion to suppress evidence obtained from a traffic stop because the evidence presented at the suppression hearing was sufficient to support the conclusion that the arresting officer had a reasonable and articulable suspicion that defendant had violated the practicable lane statute, N.D.C.C. § 39-10-17(1), by crossing over the fog line. State v. Wolfer, 2010 ND 63, 780 N.W.2d 650, 2010 N.D. LEXIS 59 (N.D. 2010).

Department of Transportation properly revoked a driver's license because probable cause existed to arrest him without considering his onsite screening test where a police officer saw him cross the dividing line between the two lanes and miss the driving lane for an interstate exit, smelled alcohol on him, and the driver admitted to consuming alcohol, the implied consent law did not constitute an unconstitutional condition, and the driver had a reasonable opportunity to consult with an attorney. Herrman v. Dir., N.D. DOT, 2014 ND 129, 847 N.W.2d 768, 2014 N.D. LEXIS 127 (N.D. 2014).

Sufficient evidence supported the finding that defendant was not illegally seized where his vehicle was pulled over for an illegal left turn, and since no citation or warning had yet been issued, the purpose of the stop was not concluded. State v. Walker, 2015 ND 281, 871 N.W.2d 451, 2015 N.D. LEXIS 281 (N.D. 2015).

Under the totality of the circumstances, a police officer had a reasonable and articulable suspicion that defendant was engaged in unlawful activity and was justified in temporarily detaining defendant to freeze the scene for further investigation. State v. Schmidt, 2016 ND 187, 885 N.W.2d 65, 2016 N.D. LEXIS 177 (N.D. 2016).

Department of Transportation properly revoked a driver's driving privilege for refusal to submit to an onsite screening test of his breath because a law enforcement officer had a reasonable suspicion he was driving while impaired; the officer observed the driver's vehicle speeding and initiated a traffic stop, the driver had bloodshot watery eyes, and he admitted he had a couple of beers. Barrios-Flores v. Levi, 2017 ND 117, 894 N.W.2d 888, 2017 N.D. LEXIS 128 (N.D. 2017).

Statute requires reasonable suspicion of driving under the influence before a law enforcement officer may request a driver to submit to a pre-arrest warrantless onsite screening test of an individual's breath and a driver's license may be revoked for refusing a test based upon the officer's reasonable suspicion; a pre-arrest warrantless onsite screening test of an individual's breath based on reasonable suspicion the individual was driving while impaired does not violate the constitution. Barrios-Flores v. Levi, 2017 ND 117, 894 N.W.2d 888, 2017 N.D. LEXIS 128 (N.D. 2017).

—Knock and Announce.

Officer’s failure to knock and announce before making a warrantless entry into defendant’s house was unreasonable under this section. City of Bismarck v. Glass, 581 N.W.2d 474, 1998 ND App 1, 1998 N.D. App. LEXIS 1 (N.D. Ct. App. 1998).

—Officer Safety Exception.

Warrantless search of defendants’ vehicle was proper under the officer safety exception where an officer testified that after defendants were ordered out of the vehicle, he could not see inside the pickup to determine if there were any other occupants, the incident occurred at night, and the pickup had tinted windows and sat high off the ground. Under those circumstances, defendants’ right to be free from unreasonable search was not infringed when the officers opened the door of the vehicle to determine if there were any other occupants in the vehicle. State v. Anderson, 2006 ND 44, 710 N.W.2d 392, 2006 N.D. LEXIS 48 (N.D. 2006).

Where the narcotics task force received a tip claiming that a probationer would be selling methamphetamine to defendant and they removed defendant from the probationer’s vehicle, the initial pat-down search of defendant was constitutionally permissible because it was based on officer safety; however, after the search of the probationer and his car produced no evidence of weapons, the continued seizure of defendant violated N.D. Const. art. I, § 8’s prohibition against unreasonable seizure and this warranted the application of the exclusionary rule for any evidence the officers obtained following the unlawful seizure. State v. Gay, 2008 ND 84, 748 N.W.2d 408, 2008 N.D. LEXIS 96 (N.D. 2008).

Regardless of whether the officers had a reasonable and articulable suspicion that defendant was hindering law enforcement in violation of N.D.C.C. § 12.1-08-03, the trial court found, by then, the officers noticed that defendant had a knife in a sheath that was visible in his pocket and the officers thought defendant made some action that they interpreted as a first step toward taking out his folding knife; having seen the knife and furtive gestures, the officers certainly had a reasonable and articulable suspicion that defendant was armed and possibly dangerous. State v. Beane, 2009 ND 146, 770 N.W.2d 283, 2009 N.D. LEXIS 155 (N.D. 2009).

Law enforcement officers were not justified in executing a protective sweep of a residence. The officers’ decision to enter the residence was colored by their previous discovery of weapons and methamphetamine at a duplex, but the search at the duplex did not reveal any concrete, articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbored an individual posing a danger to those on the arrest scene. State v. Hart, 2014 ND 4, 841 N.W.2d 735, 2014 N.D. LEXIS 3 (N.D. 2014).

—Patdown and Pocket Search.

While a patdown may often be reasonable for safety, the following pocket search must also be based on the same safety reasons. They are distinct efforts. To proceed without a warrant or an arrest, each must be reasonable. State v. Zearley, 444 N.W.2d 353, 1989 N.D. LEXIS 141 (N.D. 1989).

In a tense situation of entering a house where suspected drug activity may be happening, the officer may not be able to adequately and quickly assess the hazards before a patdown and that is why the patdown of defendant was reasonable but the reasonableness of a patdown, without more, does not make a pocket search reasonable since a patdown is not simply a routine preliminary to a more extensive search and before going further, the officer must have an articulable and reasonable suspicion that the person is armed and dangerous. State v. Zearley, 444 N.W.2d 353, 1989 N.D. LEXIS 141 (N.D. 1989).

Where an outside clothing pat-down search reveals the presence of an object of a size and density that reasonably suggests the object might be a weapon, the searching officer is entitled to continue the search to the inner garments where the object is located in order to determine whether the object is in fact a weapon. State v. Zearley, 468 N.W.2d 391, 1991 N.D. LEXIS 66 (N.D. 1991).

An officer had a reasonable and articulable suspicion that the defendant was armed and dangerous when, during a pat-down search, he felt an object which he thought was a knife. Thereafter, executing a pocket search was reasonable and the items found in defendant’s pocket were admissible evidence. State v. Zearley, 468 N.W.2d 391, 1991 N.D. LEXIS 66 (N.D. 1991).

Defendant’s repeatedly reaching into the pockets and waistband of his jeans, even after being told not to do so, gave the officer an articulable suspicion that he might be armed and dangerous and a protective patdown for weapons was warranted to ensure the officer’s safety; when the object in defendant’s pocket was of a size and density to reasonably suggest it was a weapon, the officer was entitled to take the action necessary to confirm that it was not. State v. Tollefson, 2003 ND 73, 660 N.W.2d 575, 2003 N.D. LEXIS 80 (N.D. 2003).

When defendant, a minor, was searched by a police officer just before entering a hockey game, and two cans of beer were found, a trial court should have granted defendant’s motion to suppress because a blanket, suspicionless search of everyone entering the sports arena was unreasonable, especially when the officer did not suspect defendant was carrying a weapon; the fact that two governors were attending the game, and the fear of terrorism, did not justify the search. State v. Seglen, 2005 ND 124, 700 N.W.2d 702, 2005 N.D. LEXIS 160 (N.D. 2005).

Trial court erred in holding that a pat-down search was proper because the court made no findings of fact as to whether there was reasonable suspicion or whether defendant consented to the search; for purposes of the Fourth Amendment and N.D. Const. Art. I, § 8, the speeding violation was a sufficient reason for the officer to stop the vehicle, order defendant out of his vehicle, and have him sit in the patrol vehicle but the officer was not justified in conducting a pat-down search before placing defendant in the patrol car and, although there was testimony indicating that defendant seemed very nervous and fidgety and avoided eye contact while in his car, the trial court made no findings as to these facts and reached no conclusion as to whether the facts gave rise to a reasonable suspicion. State v. Brockel, 2008 ND 50, 746 N.W.2d 423, 2008 N.D. LEXIS 44 (N.D. 2008).

When a pat-down search revealed objects in defendant’s pocket but where the objects were not of a size and density that suggested that the objects might be weapons or anything that might be used to harm the police, a subsequent pocket search was improper, and defendant’s motion to suppress the drug paraphernalia discovered should have been granted. State v. Harlan, 2008 ND 220, 758 N.W.2d 706, 2008 N.D. LEXIS 208 (N.D. 2008).

Officers had already taken one six and three-quarter inch knife from defendant and thus it was reasonable under the circumstances for the officers to believe that the bulge in defendant’s pocket, the container in question, might had been another weapon, as the container was large enough to hold another weapon, defendant would not tell the officers what was in the container, and thus one officer opened the container to see if there was any kind of weapon in it; under the circumstances, the officer’s opening of the container was reasonable and this did not violate defendant’s constitutional rights, the contraband discovered was the fruit of a legal frisk or pat-down search, and thus the trial court erred in granting the motion to suppress as to the container evidence. State v. Beane, 2009 ND 146, 770 N.W.2d 283, 2009 N.D. LEXIS 155 (N.D. 2009).

Defendant’s motion to suppress was improperly denied as the police officer’s invasive search of defendant’s person violated her constitutional rights because the officer did not have reasonable and articulable suspicion that defendant was armed and dangerous after conducting the outside clothing pat-down, justifying a more intrusive search, as the officer testified she felt a large, soft bulge inside defendant’s bra while conducting the pat-down; the officer testified it did not feel like anything hard, metallic, or similar to a weapon, gun, or knife; and the officer did not testify she was concerned that defendant was armed and dangerous at the time of the search of her person. State v. Broom, 2018 ND 135, 911 N.W.2d 895, 2018 N.D. LEXIS 143 (N.D. 2018).

—Possessory Interest.

Defendant’s motion to suppress was improperly denied because he had a sufficient possessory interest in the package at the time it was seized at the delivery facility to claim his personal, constitutional rights were violated as the addressee simply received packages which he gave to defendant; defendant retrieved the package from the addressee, and did not exchange anything for the package when he retrieved it; the lack of payment showed that both defendant and the addressee understood the package to be defendant’s property; and defendant possessed the package when he was arrested, close in time to the illegal seizure, without any intervening purchase, abandonment, or other act indicating a change in lawful possession of the package. State v. Gardner, 2019 ND 122, 927 N.W.2d 84, 2019 N.D. LEXIS 130 (N.D. 2019).

—Prisoner Searches.

— —Urine Testing.

State penitentiary urine screening program to test prisoner for drug use, with a positive result showing drug use or a refusal to submit to the test resulting in prisoner’s loss of good time, did not violate prisoner’s Fourth Amendment rights against unreasonable searches and seizures where the prisoner was given advance warning of the screening and the taking of the urine sample was conducted by the penitentiary infirmary officer in a manner that was minimally intrusive on prisoner’s privacy. Hampson v. Satran, 319 N.W.2d 796, 1982 N.D. LEXIS 266 (N.D. 1982).

—Probable Cause.

— —Driving Under the Influence.

County deputy had probable cause to arrest defendant for driving under the influence because the deputy observed some signs of physical or mental impairment and had reason to believe defendant's impairment was caused by alcohol. State v. Boehm, 2014 ND 154, 849 N.W.2d 239, 2014 N.D. LEXIS 158 (N.D. 2014).

Criminal refusal statute, N.D.C.C. § 39-08-01(1)(e), did not violate defendant's rights under the Fourth Amendment or N.D. Const. art. I, § 8 because (1) an officer had reasonable suspicion to believe defendant was driving under the influence of alcohol, and (2) defendant was not forced to submit to the test. State v. Baxter, 2015 ND 107, 863 N.W.2d 208, 2015 N.D. LEXIS 102 (N.D. 2015).

—Probationary Search.

— —In General.

Condition of probation requiring probationer to submit to a search by police officers or probation officers without a warrant and without probable cause or even a reasonable suspicion that the probationer is engaging in criminal activities or violating a condition of his probation does not violate Fourth Amendment rights to the extent such a search contributes to the rehabilitation process; is not used as a subterfuge for criminal investigations; and is performed in a reasonable manner. State v. Perbix, 331 N.W.2d 14, 1983 N.D. LEXIS 244 (N.D. 1983), overruled in part, State v. Maurstad, 2002 ND 121, 647 N.W.2d 688, 2002 N.D. LEXIS 145 (N.D. 2002), overruled in part, State v. Ballard, 2016 ND 8, 874 N.W.2d 61, 2016 N.D. LEXIS 15 (N.D. 2016).

Where submission to a warrantless search is imposed as a condition of probation, evidence obtained as a result of a valid search conducted pursuant to such condition is not limited in its use to probation revocation proceedings, but may be used in a new criminal prosecution. State v. Perbix, 331 N.W.2d 14 (N.D. 1983), overruled on other grounds, State v. Grant, 361 N.W.2d 243 (N.D. 1985), overruled in part, State v. Maurstad, 2002 ND 121, 647 N.W.2d 688 (2002), but see State v. Maurstad, 2002 ND 121, 647 N.W.2d 688, 2002 N.D. LEXIS 145 (N.D. 2002).

There was sufficient evidence for trial court to conclude probationary search was not subterfuge for criminal investigation, where probation conditions required probationer to obey criminal laws, marijuana was found in a prior probation search of his residence, search was instigated and conducted by probation officers, and law enforcement officers present recognized probation officer as the person in charge. State v. LaFromboise, 542 N.W.2d 110, 1996 N.D. LEXIS 17 (N.D. 1996).

Reasonable suspicion is not required for a probationary search as long as the search itself is reasonable. State v. Smith, 1999 ND 9, 589 N.W.2d 546, 1999 N.D. LEXIS 7 (N.D.), cert. denied, 526 U.S. 1162, 119 S. Ct. 2054, 144 L. Ed. 2d 221, 1999 U.S. LEXIS 3893 (U.S. 1999).

Warrantless search of the home and car of defendant convicted of drug paraphernalia possession to determine if he was following the terms of his probation was reasonable where narcotics task force agents informed probation officer of suspected drug activity at the defendant’s home. State v. Smith, 1999 ND 9, 589 N.W.2d 546, 1999 N.D. LEXIS 7 (N.D.), cert. denied, 526 U.S. 1162, 119 S. Ct. 2054, 144 L. Ed. 2d 221, 1999 U.S. LEXIS 3893 (U.S. 1999).

Where, under the totality of circumstances, defendant’s probation officer had a reasonable suspicion that defendant was engaging in unlawful activity, the searches did not violate the Fourth Amendment; the court overruled the portion of State v. Perbix, 331 N.W.2d 14 (N.D. 1983), requiring that the purpose of a probationary search be considered when deciding the validity of a probationary search and the court determined that it would no longer consider whether the search was conducted as a subterfuge for a criminal investigation. State v. Maurstad, 2002 ND 121, 647 N.W.2d 688, 2002 N.D. LEXIS 145 (N.D. 2002).

District court committed reversible error in failing to make a specific finding of appropriateness under N.D.R.Crim.P. 46(a)(2)(M) when it imposed conditions of pretrial release that required defendant to consent to a warrantless search at any time of her person, vehicle, and residence. State v. Hayes, 2012 ND 9, 809 N.W.2d 309, 2012 N.D. LEXIS 7 (N.D. 2012).

District court did not err in denying a probationer's motion to suppress evidence found on his cell phones where the conditions of his probation included allowing police officers to search the cell phones located inside his residence as part of the probation search, his girlfriend informed officers that he had uploaded pictures of clothed, young girls in provocative positions to his cell phones, and thus, the officers had reasonable suspicion to conduct a warrantless search of the cell phones. State v. White, 2017 ND 51, 890 N.W.2d 825, 2017 N.D. LEXIS 50 (N.D. 2017).

Trial court erred by granting defendant’s motion to suppress because his supervised probation conditions included a search clause, and a child’s statement alluding to the presence of drugs in the residence to officers during the initial officer safety sweep provided reasonable suspicion that unlawful activity was afoot. The court held that defendant remained on probation and subject to the conditions of probation while he was in custody until such time as his probation was terminated or revoked. State v. Stenhoff, 2019 ND 106, 925 N.W.2d 429, 2019 N.D. LEXIS 105 (N.D. 2019).

—Forced Entry.

Given probationer’s inability to maneuver within three-level dwelling because he was in a wheelchair, the time of night of the search, probationer’s conviction for possessing an illegal shotgun, and that officers had reason to conclude illegal contraband was being destroyed, officers’ 10-minute wait to force entry was not unreasonable. State v. LaFromboise, 542 N.W.2d 110, 1996 N.D. LEXIS 17 (N.D. 1996).

Reasonable Expectation of Privacy.

Police officers did not violate defendant’s reasonable expectation of privacy, when they entered his property on his driveway and observed his pickup in his garage, where they had legitimate business and entered an area surrounding his home which was impliedly open to use by the public. State v. Winkler, 552 N.W.2d 347, 1996 N.D. LEXIS 187 (N.D. 1996).

Scope of Search.

In determining whether an unreasonable search has occurred, the court must consider the nature and the extent of the householder’s interest in, and the privacy of, the area into which the officers went without a warrant, including its proximity to the actual dwelling of defendant, and whether the place searched was within the curtilage of the occupant. State v. Manning, 134 N.W.2d 91, 1965 N.D. LEXIS 148 (N.D. 1965).

Because illegal drugs can be secreted in a variety of places, trial court correctly found that the length or extent of a careful, three-hour warrantless search of probationer’s premises was not unreasonable. State v. LaFromboise, 542 N.W.2d 110, 1996 N.D. LEXIS 17 (N.D. 1996).

Search Incident to Arrest.

—In General.

Where robbery was reported to police, suspect was found jogging away from robbery location shortly afterwards, uniformed officers stopped suspect and questioned him, suspect was nervous and answered irrationally, suspect had bulges in his pockets which he said contained money, suspect was informed that there had been a robbery and that he was being taken to the police station, suspect was taken to the station and advised of his rights, and money and tally sheet from the day’s receipts of the robbed business were taken from pockets of suspect who then confessed, the search was incident to a lawful custodial arrest. State v. Arntz, 286 N.W.2d 478, 1979 N.D. LEXIS 330 (N.D. 1979).

A police search of defendant’s suitcase and jacket in vehicle, after defendant was arrested, handcuffed, and placed in a police car, did not violate the proscription against unreasonable searches and seizures of the Fourth Amendment of the United States Constitution and this section. State v. Hensel, 417 N.W.2d 849, 1988 N.D. LEXIS 6 (N.D. 1988).

Where a policeman made a valid automobile stop and arrest, based upon probable cause, he had the right to perform a search incident to arrest, and did not need separate probable cause to search the passenger compartment. State v. Olson, 1998 ND 41, 575 N.W.2d 649, 1998 N.D. LEXIS 27 (N.D. 1998).

Where the defendant stepped out of her car immediately before being arrested for driving under suspension and driving under the influence of alcohol, the search of her vehicle was a lawful search incident to the arrest. State v. Wanzek, 1999 ND 163, 598 N.W.2d 811, 1999 N.D. LEXIS 187 (N.D. 1999).

Drugs and drug paraphernalia seized from a search of an automobile’s front passenger area were constitutionally obtained where the car was validly stopped based on probable cause and reasonable grounds for believing the driver was driving under a suspended license and where the following three exceptions to the search warrant requirement applied: one, the search was conducted incident to the arrest of the driver for driving under a suspended license; two, the area was searched because the officer saw a syringe in plain view; and three, the car was impounded due to its lack of insurance and its dangerous location on an interstate ramp thus justifying an inventory search. State v. Gregg, 2000 ND 154, 615 N.W.2d 515, 2000 N.D. LEXIS 170 (N.D. 2000).

Police had probable cause to arrest defendant at the time of the pocket search and, when viewed objectively, had placed him under arrest by the time of the search; the search was therefore justified as a search performed incident to the arrest. Upon seeing the methamphetamine paraphernalia in plain view in the automobile, the officers had probable cause to believe that some drug-related crime was either committed or attempted; therefore, police had the authority to arrest the responsible parties without a warrant, and the trial court did not err in denying defendant’s motion to suppress the evidence. State v. Linghor, 2004 ND 224, 690 N.W.2d 201, 2004 N.D. LEXIS 364 (N.D. 2004).

Whether an officer obtained consent to search before searching a hotel room was a credibility determination for the trial court. After finding a “bindle” of methamphetamine, the officer then had probable cause to arrest defendant and the search of her purse and her person were searches incident to arrest. State v. Woinarowicz, 2006 ND 179, 720 N.W.2d 635, 2006 N.D. LEXIS 181 (N.D. 2006).

Trial court properly refused to suppress evidence obtained during searches of defendant and his vehicle where an officer personally observed a possible vehicle registration violation in that the temporary registration certificate displayed on the vehicle had no visible printing on it, which was indicative of a temporary certificate that was more than 30 days old in violation of N.D.C.C. § 39-04-17; because defendant then fled when officers commanded him to stop, the subsequent searches of defendant and the vehicle were incident to his arrest for fleeing a peace officer. State v. Oliver, 2006 ND 241, 724 N.W.2d 114, 2006 N.D. LEXIS 245 (N.D. 2006).

Officers were acting lawfully under N.D.C.C. § 29-06-02 when executing a federal arrest warrant, and defendant made no contrary showing. Therefore, the contraband yielded was admissible against defendant because it was found in a search incident to a valid arrest. State v. Proell, 2007 ND 17, 726 N.W.2d 591, 2007 N.D. LEXIS 11 (N.D. 2007).

—Blood Sample.

Warrantless extraction of blood for purpose of a blood alcohol test from defendant arrested for driving while intoxicated was properly taken as a search incident to arrest where delay to obtain a warrant would threaten destruction of evidence, defendant’s condition established a clear indication that a blood sample would produce evidence of intoxication, and the blood sample was taken in a reasonable manner by a registered nurse in a hospital according to accepted medical standards. State v. Kimball, 361 N.W.2d 601, 1985 N.D. LEXIS 246 (N.D. 1985).

Search Incident to Detention.

Search was unreasonable, and items seized were properly suppressed, where burglary suspect was apprehended and taken into police custody but was not placed under arrest, and police officers then proceeded without a warrant to forcibly remove suspect’s boots, shirt and trousers. State v. Phelps, 286 N.W.2d 472, 1979 N.D. LEXIS 329 (N.D. 1979).

Sobriety Checkpoints.

Where the police officers at sobriety checkpoint followed the directives of the guidelines and operational briefing, the record supported the county court’s finding of constitutionality, as the strictures of the guidelines and briefing adequately advanced the public interests and limited interference with individual liberty. City of Bismarck v. Uhden, 513 N.W.2d 373, 1994 N.D. LEXIS 68 (N.D. 1994).

Law enforcement is not required as a matter of law to provide motorists with an opportunity to avoid temporary sobriety checkpoints. However, when considering the constitutional reasonableness of a checkpoint, avoidability is one factor that may be considered in evaluating the intrusion on the personal liberty of individual motorists. State v. Hahne, 2007 ND 116, 736 N.W.2d 483, 2007 N.D. LEXIS 119 (N.D. 2007).

Suspension of the driver’s driving privileges for 91 days was upheld where his stop at a sobriety checkpoint was constitutional, N.D. Const. art. I, § 8, U.S. Const. amend. IV, as the stop of the driver at the checkpoint was reasonable; under N.D.C.C. § 39-20-07(5), the driver’s breath tests were administered according to the approved method and the hearing officer did not err by admitting the results into evidence. Martin v. N.D. DOT, 2009 ND 181, 773 N.W.2d 190, 2009 N.D. LEXIS 187 (N.D. 2009).

Warrantless Entry of Garage to Serve Civil Process.

Where deputy went to serve civil process on defendant and chose to enter into defendant’s closed garage without a warrant, where a second warrantless entry by the deputy occurred the next day, and where those entries resulted in the discovery of evidence which eventually led to the issuance of a search warrant for defendant’s home and the subsequent seizure of contraband, because defendant’s garage is a place where he had an expectation of privacy, the trial court did not err in finding that the officer made two warrantless searches of defendant’s closed garage within the meaning of the Fourth Amendment, and this section, and in suppressing the evidence seized pursuant to these searches. State v. Blumler, 458 N.W.2d 300, 1990 N.D. LEXIS 130 (N.D. 1990).

IV. Arrests.

Expunction of Arrest Record.

In the absence of statutory authorization for such relief, the courts have authority, as well as an obligation, to expunge the arrest records on one who is not convicted and who is wrongfully arrested in violation of his constitutional rights. State v. Howe, 308 N.W.2d 743, 1981 N.D. LEXIS 339 (N.D. 1981).

Information and Complaint.

There is a sufficient compliance with the provisions of this section where the state’s attorney files his information and also files a positive affidavit in the form of a criminal complaint setting forth all the facts alleged in the information. State v. Gottlieb, 21 N.D. 179, 129 N.W. 460, 1910 N.D. LEXIS 158 (N.D. 1910).

Warrantless Arrests.

An arrest may be made without a warrant when a law enforcement officer has probable cause to believe that the arrested person committed a felony; probable cause to support a warrantless arrest exists when the facts and circumstances within a police officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed. State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

The police officer was authorized under this section to make a warrantless arrest of the defendant, who had lost consciousness at a restaurant drive-up window behind the wheel of his running motor vehicle, walked unsteadily and failed field sobriety tests; methamphetamine found on the defendant’s person during the sobriety tests and in his vehicle afterwards was admissible because it inevitably would have been discovered in the search incident to the arrest. State v. Waltz, 2003 ND 197, 672 N.W.2d 457, 2003 N.D. LEXIS 214 (N.D. 2003).

There was probable cause for appellant’s arrest where evidence established that he was involved in a motor vehicle accident, an officer smelled an odor of alcohol upon walking up to the ambulance, appellant admitted to consuming alcohol, the officer noted appellant’s eyes were bloodshot and watery, appellant failed the horizontal gaze nystagmus test, and he also consented to a pre-arrest screening test, which results showed he failed the test. Schwindt v. Sorel, 2020 ND 92, 942 N.W.2d 849, 2020 N.D. LEXIS 93 (N.D. 2020).

V. Suppression of Evidence.

In General.

Pursuant to the holding in Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 16 Ohio Op. 2d 384, 84 A.L.R.2d 933, all evidence obtained by searches and seizures in violation of the Fourth Amendment to the federal Constitution is, by virtue of the Due Process Clause of the Fourteenth Amendment, inadmissible in a state court. State v. Manning, 134 N.W.2d 91, 1965 N.D. LEXIS 148 (N.D. 1965).

Claim Not Reviewable.

Where defendant asserted that evidence should have been suppressed under N.D. Const. art. I, § 8, but did not marshal a separate argument under the state constitution, this was insufficient to raise the state constitutional argument for appellate review. State v. Parizek, 2004 ND 78, 678 N.W.2d 154, 2004 N.D. LEXIS 170 (N.D. 2004).

Confession After Illegal Seizure of Person.

Defendant’s confession made after an illegal police custodial interrogation conducted after an illegal seizure of his person was not obtained as a result of an exploitation of the illegal police conduct, and was therefore not inadmissible as “fruit of the poisonous tree”, where the time lapse between the illegal police conduct and the confession was approximately 22 hours, during which time defendant was allowed to go home with his parents; there was no police conduct toward defendant during the 22-hour intervening time period; and the police officers were not guilty of flagrant and malicious misconduct. State v. Carlson, 318 N.W.2d 308, 1982 N.D. LEXIS 327 (N.D.), cert. denied, 459 U.S. 1040, 103 S. Ct. 456, 74 L. Ed. 2d 609, 1982 U.S. LEXIS 4523 (U.S. 1982).

Fruit of Poisonous Tree Doctrine.

Evidence of drugs and drug paraphernalia found in searches subsequent to an illegal search of a hotel room and gym bag need not be suppressed where officers’ initial illegal search was not the “but for” cause of the officers’ later search of the vehicle driven by the defendants and the independent source exception also applied. State v. Gregg, 2000 ND 154, 615 N.W.2d 515, 2000 N.D. LEXIS 170 (N.D. 2000).

Officer’s warrantless search of defendant’s jacket outside the doorway of a private home violated defendant’s Fourth Amendment rights against unreasonable search and seizure; the search was not a permissible inspection to identify the owner of personal property, because the circumstances did not justify an inference that the jacket was stolen, lost, or abandoned, and there was no claim the officer’s search was based upon probable cause to believe the jacket contained evidence of criminal activity. State v. Dunn, 2002 ND 189, 653 N.W.2d 688, 2002 N.D. LEXIS 245 (N.D. 2002).

District court erred in finding that defendant voluntarily consented to law enforcement officers’ entry into his motel room where four officers appeared at the motel room door with their weapons drawn, they yelled and ordered the occupants to come out with their hands up, and the officers asked if they could come into the room before ordering defendant to the ground; although the district court found legitimate safety concerns justifying the officers’ use of weapons, that fact was not relevant in deciding whether consent was voluntary. However, defendant’s statement to the police subsequently made at the police station could not be considered the product of the unlawful entry into the motel room and fruit of the poisonous tree; because there was probable cause to arrest defendant, the statements he made during the interrogation at the police station were not the product of the illegal entry, and the exclusionary rule did not bar the State’s use of those statements. The district court therefore did not err in denying defendant’s motion to suppress. State v. Pederson, 2011 ND 155, 801 N.W.2d 723, 2011 N.D. LEXIS 156 (N.D. 2011).

Good Faith Exception.

Good faith exception to the exclusionary rule applied where officer seized evidence of drugs from defendant’s residence during the execution of a warrant issued without probable cause; the officer believed he was acting pursuant to a validly issued warrant, and the seized evidence was admitted. State v. Dodson, 2003 ND 187, 671 N.W.2d 825, 2003 N.D. LEXIS 195 (N.D. 2003).

Good faith exception to the exclusionary rule did not apply because the search warrant was based on an affidavit lacking in probable cause indicia rendering official belief in its existence entirely unreasonable where the officer’s affidavit supplied no more than a tenuous and conclusory suggestion that defendant was involved in criminal activity, as it was based on stale information from an uncorroborated confidential informant who was part of the criminal milieu, it provided no time-frame for alleged transactions and did not establish that contraband would be found in the defendant’s residence. State v. Lunde, 2008 ND 142, 752 N.W.2d 630, 2008 N.D. LEXIS 146 (N.D. 2008).

Although the State argued the district court properly denied defendant’s motion to suppress because officers relied in good faith on the district court’s amended bond order, the imposition of a warrantless search provision in a bond order was too remote a circumstance to be compared to a probable cause determination resulting in a search warrant. State v. Hayes, 2012 ND 9, 809 N.W.2d 309, 2012 N.D. LEXIS 7 (N.D. 2012).

Harmless Error.

The trial court committed harmless error in allowing the introduction of illegally obtained evidence that was neither an element of the crime with which the defendant was charged nor was convincing on its face that the charged crime had been committed, where the remaining evidence overwhelmingly tended to indicate the defendant’s guilt. State v. Howe, 182 N.W.2d 658 (N.D. 1970), cert. denied, 403 U.S. 933, 91 S. Ct. 2261, 29 L. Ed. 2d 712 (1971), distinguished, State v. Matthews, 216 N.W.2d 90, 1974 N.D. LEXIS 259 (N.D. 1974).

Inevitable Discovery Doctrine.

The inevitable-discovery theory, which theory establishes that evidence derived from information obtained in an unlawful search is not inadmissible under the fruit-of-the-poisonous-tree doctrine where it is shown that the evidence would have been gained even without the unlawful action, is a part of North Dakota law as a necessary corollary and exception to the fruit-of-the-poisonous-tree doctrine and the exclusionary rule; to apply the inevitable-discovery theory the state must meet a two-part test; 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; and 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. State v. Phelps, 297 N.W.2d 769, 1980 N.D. LEXIS 291 (N.D. 1980).

In a drug case, district court failed to make specific findings of fact as to whether a police officer acted in bad faith as required under the first part of the inevitable discovery test when searching beyond the scope of the consent to search; however, there was sufficient evidence to support a finding that contraband found in defendant's suitcase would have inevitably been discovered after the suitcase was searched without his consent, satisfying the second part of the inevitable discovery test. State v. Asbach, 2015 ND 280, 871 N.W.2d 820, 2015 N.D. LEXIS 275 (N.D. 2015).

Even if warrantless entry into a home to make a felony arrest was unlawful, evidence seized pursuant to a search warrant was admissible under the inevitable discovery doctrine where at the time of the entry and arrest the search warrant was in the process of being obtained, no information concerning anything the police found when they entered the home was relayed to the officer who was making the affidavit for the search warrant, and all relevant information necessary for the search warrant was independently in the hands of the officer seeking the warrant prior to the entry by the other officers. State v. Nagel, 308 N.W.2d 539, 1981 N.D. LEXIS 318 (N.D. 1981).

The inevitable discovery doctrine could not be applied to validate an illegal search based upon an assumption that a subsequent search conducted pursuant to a hypothetical search warrant would have resulted in the discovery of the disputed evidence. State v. Handtmann, 437 N.W.2d 830, 1989 N.D. LEXIS 58 (N.D. 1989).

Even though the district court subsequently found that the circumstances argued by the state were not actually exigent, so as to permit officers to arrest individual who had just sold drugs to an informant in his home, without a warrant, where the testimony presented to the court would have allowed it to conclude that the officers were merely mistaken in their belief of exigent circumstances, that they were not entering the apartment to collect evidence in bad faith, that the only reason the police entered the apartment was to detain a defendant until agent could arrive with a search warrant, and that the officers did not specifically conduct a search for evidence while in the apartment, and where the evidence seized would have inevitably been discovered pursuant to the subsequently issued warrant, the district court did not err in applying the inevitable discovery doctrine so as to deny defendant’s motion to suppress. State v. Wahl, 450 N.W.2d 710, 1990 N.D. LEXIS 9 (N.D. 1990).

Because the trial court did not explicitly find that the officers would have sought a warrant if they had not earlier entered defendant’s garage without a warrant, the case was remanded to the trial court for a determination of whether the officers’ decision to seek the warrant was caused by what they saw during their unlawful entry. State v. Winkler, 552 N.W.2d 347, 1996 N.D. LEXIS 187 (N.D. 1996).

Inevitable discovery doctrine was properly applied to the deceased body found in a burned home where the police officers' entry into the home was limited to just inside the threshold and to confirm the presence of the dead body, as reported by the firefighters, and they acted in good faith by immediately leaving the home and applying for a search warrant. State v. Friesz, 2017 ND 177, 898 N.W.2d 688, 2017 N.D. LEXIS 164 (N.D. 2017).

Procedural Issues.

—Standing to Object.

Where defendants charged with conspiracy to possess and deliver a controlled substance had no expectation of privacy in the motel room of another codefendant who had pleaded guilty, the defendants did not have standing to object to a search of the codefendant’s motel room; it is no longer desirable to continue the automatic-standing rule, which gave a defendant charged with crimes of possession based upon possession of seized goods automatic standing to challenge the legality of the search which produced the evidence against him. State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

Suppression Not Warranted.

Trial court did not err in denying defendant’s motion to suppress because the state constitution was not violated by law enforcement’s warrantless electronic monitoring of defendant’s face-to-face conversations with an informant when the conversations and drug transactions occurred in the informant’s car and the informant consented to the electronic monitoring. State v. Loh, 2010 ND 66, 780 N.W.2d 719, 2010 N.D. LEXIS 57 (N.D. 2010).

Defendant was not entitled to suppress evidence when police officers found defendant nonresponsive and in the driver’s seat of a parked vehicle as an officer was acting within the community caretaker exception when the officer requested defendant step out of the vehicle and the seizure of defendant when defendant exited the vehicle was appropriate as officers had reasonable and articulable suspicion that defendant was operating a vehicle while under the influence of alcohol based on the odor of alcohol and defendant’s poor balance. City of W. Fargo v. Medbery, 2021 ND 81, 959 N.W.2d 568, 2021 N.D. LEXIS 80 (N.D. 2021).

Suppression Warranted.

Officers’ unannounced entry in violation of N.D.C.C. § 29-29-08, also violated this section and the Fourth and Fourteenth amendments to the United States Constitution, thereby necessitating the suppression of the evidence obtained. State v. Sakellson, 379 N.W.2d 779, 1985 N.D. LEXIS 456 (N.D. 1985).

VI. Other Matters.

Appeal.

Argument that rights under N.D. Const. art. I, § 8 were greater than under the Fourth Amendment was not preserved for review because defendant’s boilerplate Fourth Amendment argument before a hearing officer at the department of transportation was insufficient to raise the issue, as required by N.D.C.C. § 28-32-42(4). Richter v. N.D. DOT, 2010 ND 150, 786 N.W.2d 716, 2010 N.D. LEXIS 157 (N.D. 2010).

Malicious Prosecution.

If a criminal warrant is wrongfully obtained upon sufficient legal proceedings, the civil action for resulting damages is for malicious prosecution and not for false imprisonment. Kittler v. Kelsch, 56 N.D. 227, 216 N.W. 898, 1927 N.D. LEXIS 94 (N.D. 1927).

Collateral References.

Constitutional Law 83(1); Searches and Seizures 2, 7.

68 Am. Jur. 2d, Searches and Seizures, §§ 1-326.

16A C.J.S. Constitutional Law, §§ 681-688; 79 C.J.S. Searches and Seizures, §§ 1-275.

Sufficiency of affidavit for search warrant based on affiant’s belief, based in turn on information, investigation, etc., by one whose name is not disclosed, 14 A.L.R.2d 605.

Propriety and legality of issuing only one search warrant to search more than one place or premises occupied by same person, 31 A.L.R.2d 864.

Premises temporarily unoccupied as dwelling within provisions forbidding unreasonable search of dwellings, 33 A.L.R.2d 1430.

Blood grouping tests, 46 A.L.R.2d 1000.

Sufficiency of description in search warrant of automobile or other conveyance to be searched, 47 A.L.R.2d 1444.

Sufficiency of description in warrant of person to be searched, 43 A.L.R.5th 1.

Interest in, or connection with, premises searched as affecting standing to attack legality of search, 78 A.L.R.2d 246.

Transiently occupied room in hotel, motel, or rooming house as within provision forbidding unreasonable searches and seizures, 86 A.L.R.2d 984.

Lawfulness of nonconsensual search and seizure without warrant, prior to arrest, 89 A.L.R.2d 715.

Sufficiency of showing as to time of occurrence of facts relied upon, 100 A.L.R.2d 525.

Admissibility, in civil case, of evidence obtained by unlawful search and seizure, 5 A.L.R.3d 670.

Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

Validity of consent to search given by one in custody of officers, 9 A.L.R.3d 858.

Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant, 10 A.L.R.3d 359.

Sufficiency of description, in search warrant, of apartment or room to be searched in multiple-occupancy structure, 11 A.L.R.3d 1330.

Modern status of rule as to validity of nonconsensual search and seizure made without warrant after lawful arrest as affected by lapse of time between, or difference in places of, arrest and search, 19 A.L.R.3d 727.

Plea of guilty as waiver of claim of unlawful search and seizure, 20 A.L.R.3d 724.

Propriety of execution of search warrant at nighttime, 41 A.L.R.5th 171.

Admissibility, in criminal case, of evidence obtained by search by private individual, 36 A.L.R.3d 553.

Comment note: “Fruit of poisonous tree” doctrine excluding evidence derived from information gained in illegal search, 43 A.L.R.3d 385.

“Furtive” movement or gesture as justifying police search, 45 A.L.R.3d 581.

Admissibility, in criminal prosecution, of evidence obtained by electronic surveillance of prisoner, 57 A.L.R.3d 172.

Admissibility, in state probation revocation proceedings, of evidence obtained through illegal search and seizure, 77 A.L.R.3d 636.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches, 79 A.L.R.3d 1083.

Liability for false arrest or imprisonment under warrant as affected by mistake as to identity of person arrested, 39 A.L.R.4th 705.

Admissibility, in criminal case, of physical evidence obtained without consent by surgical removal from person’s body, 41 A.L.R.4th 60.

Officer’s ruse to gain entry as affecting admissibility of plain-view evidence — modern cases, 47 A.L.R.4th 425.

Propriety of state or local government health officer’s warrantless search—post-Camera cases, 53 A.L.R.4th 1168.

Seizure of books, documents, or other papers under search warrant not describing such items, 54 A.L.R.4th 391.

Search and seizure of telephone company records pertaining to subscriber as violation of subscriber’s constitutional rights, 76 A.L.R.4th 536.

Lawfulness of search of person or personal effects under medical emergency exception to warrant requirement, 11 A.L.R.5th 52.

Prisoner’s rights as to search and seizure under state law or constitution — post-Hudson cases, 14 A.L.R.5th 913.

Search and seizure: Lawfulness of demand for driver’s license, vehicle registration, or proof of insurance pursuant to police stop to assist motorist, 19 A.L.R.5th 884.

Search conducted by school official or teacher as violation of fourth amendment or equivalent state constitutional provision, 31 A.L.R.5th 229.

Propriety of stop and search by law enforcement officers based solely on drug courier profile, 37 A.L.R.5th 1.

Propriety of execution of search warrant at nighttime, 41 A.L.R.5th 171.

Sufficiency of description in warrant of person to be searched, 43 A.L.R.5th 1.

Coercive conduct by private person as affecting admissibility of confession under state statutes or constitutional provisions — post- Connelly cases, 48 A.L.R.5th 555.

Application of “plain-feel” exception to warrant requirements — state cases, 50 A.L.R.5th 581.

Propriety of search of nonoccupant visitor’s belongings pursuant to warrant issued for another’s premises, 51 A.L.R.5th 375.

Admissibility of evidence discovered in search of adult defendant’s property or residence authorized by defendant’s minor child — state cases, 51 A.L.R.5th 425.

Observation through binoculars as constituting unreasonable search, 59 A.L.R.5th 615.

Search and seizure: reasonable expectation of privacy in driveways, 60 A.L.R.5th 1.

Admissibility of evidence discovered in warrantless search of rental property authorized by lessor of such property — state cases, 61 A.L.R.5th 1.

Searches and seizures: Reasonable expectation of privacy in contents of garbage or trash receptacle, 62 A.L.R.5th 1.

Belief that burglary is in progress or has recently been committed as exigent circumstance justifying warrantless search of premises, 64 A.L.R.5th 637.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s spouse (resident or nonresident) — state cases, 65 A.L.R.5th 407.

Search and seizure: reasonable expectation of privacy in tent or campsite, 66 A.L.R.5th 373.

Validity of anticipatory search warrants — state cases, 67 A.L.R.5th 361.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by one, other than relative, who is cotenant or common resident with defendant — state cases, 68 A.L.R.5th 343.

Civilian participation in execution of search warrant as affecting legality of search, 68 A.L.R.5th 549.

Effect of retroactive consent on legality of otherwise unlawful search and seizure, 76 A.L.R.5th 563.

Permissibility and sufficiency of warrantless use of thermal imager or Forward Looking Infra-Red Radar (F.L.I.R.) 78 A.L.R.5th 309.

Validity of police roadblocks or checkpoints for purpose of discovery of illegal narcotics violations, 82 A.L.R.5th 103.

Validity of search or seizure of computer, computer disk, or computer peripheral equipment, 84 A.L.R.5th 1.

What constitutes compliance with knock-and-announce rule in search of private premises — State cases, 85 A.L.R.5th 1.

Federal and state constitutions as protecting prison visitor against unreasonable searches and seizures, 85 A.L.R.5th 261.

Constitutionality of secret video surveillance, 91 A.L.R.5th 585.

Expectation of privacy in internet communications, 92 A.L.R.5th 15.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches, 99 A.L.R.5th 557.

Error, in either search warrant or application for warrant, as to address of place to be searched as rendering warrant invalid, 103 A.L.R.5th 463.

Search warrant as authorizing search of structures on property other than main house or other building, or location other than designated portion of building, 104 A.L.R.5th 165.

Admissibility, in civil proceeding, of evidence obtained through unlawful search and seizure, 105 A.L.R.5th 1.

Odor detectable by unaided person as furnishing probable cause for search warrant, 106 A.L.R.5th 397.

When are facts offered in support of search warrant for evidence of sale or possession of cocaine so untimely as to be stale — State cases, 109 A.L.R.5th 99.

When are facts offered in support of search warrant for evidence of sexual offense so untimely as to be stale — State cases, 111 A.L.R.5th 239.

When are facts relating to marijuana, provided by one other than police or other law enforcement officer, so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of a controlled substance — State cases, 112 A.L.R.5th 429.

When are facts relating to drug other than cocaine or marijuana so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of controlled substance — State cases, 113 A.L.R.5th 517.

Validity of warrantless search of motor vehicle based on odor of marijuana — State cases, 114 A.L.R.5th 173.

When are facts relating to marijuana, provided by police or other law enforcement officer, so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of controlled substance — State cases, 114 A.L.R.5th 235.

Validity of warrantless search based in whole or in part on odor of narcotics other than marijuana, or chemical related to manufacture of such narcotics, 115 A.L.R.5th 477.

Validity of routine roadblocks by state or local police for purpose of discovery of driver’s license, registration, and safety violations, 116 A.L.R.5th 479.

Use of trained dog to detect narcotics or drugs as unreasonable search in violation of state constitutions, 117 A.L.R.5th 407.

Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues — Motions and objections during trial and matters other than pretrial motions, 117 A.L.R.5th 513.

Validity of warrantless search of other than motor vehicle or occupant of vehicle based on odor of marijuana—State cases, 122 A.L.R.5th 439.

Validity of warrantless search of motor vehicle driver based on odor of marijuana—State cases, 123 A.L.R.5th 179.

Validity of search conducted pursuant to parole warrant, 123 A.L.R.5th 221.

Validity of warrantless search of motor vehicle passenger based on odor of marijuana,. 1 A.L.R.6th 371.

Application in state narcotics cases of collective knowledge doctrine or fellow officers’ rule under Fourth Amendment—Cocaine cases,. 4 A.L.R.6th 599.

Application in state narcotics cases of collective knowledge doctrine or fellow officers’ rule under Fourth Amendment—Drugs other than marijuana and cocaine and unidentified drugs, 12 A.L.R.6th 553.

Construction and application of rule permitting knock and talk visits under Fourth Amendment and state constitutions, 15 A.L.R.6th 515.

When is warrantless entry of house or other building justified under “hot pursuit” doctrine, 17 A.L.R.6th 327.

Employee’s Expectation of Privacy in Workplace. 18 A.L.R.6th 1.

Expectation of Privacy in Text Transmissions to or from Pager, Cellular Telephone, or Other Wireless Personal Communications Device. 25 A.L.R.6th 201.

What Constitutes “Custodial Interrogation” at Hospital by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — Suspect Injured or Taken Ill. 25 A.L.R.6th 379.

Timeliness of Execution of Search Warrant. 27 A.L.R.6th 491.

Hospital as Within Constitutional Provision Forbidding Unreasonable Searches and Seizures, 28 A.L.R.6th 245.

Application in State Narcotics Cases of Collective Knowledge Doctrine or Fellow Officers’ Rule Under Fourth Amendment — Marijuana Cases, 35 A.L.R.6th 497.

What Constitutes “Custodial Interrogation” Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — In Jail or Prison. 38 A.L.R.6th 97.

Validity of Search of Cruise Ship Cabin. 43 A.L.R.6th 355.

Validity of Search and Reasonable Expectation of Privacy as Affected by No Trespassing or Similar Signage. 45 A.L.R.6th 643.

Construction and Application of “Automatic Companion Rule” or Person’s “Mere Propinquity” to Arrestee to Determine Propriety of Search of Person for Weapons or Firearms. 47 A.L.R.6th 423.

Construction and Application of Consent-Once-Removed Doctrine, Permitting Warrantless Entry Into Residence by Law Enforcement Officers for Purposes of Effectuating Arrest or Search Where Confidential Informant or Undercover Officer Enters with Consent and Observes Criminal Activity or Contraband in Plain View. 50 A.L.R.6th 1.

Construction and Application of Supreme Court’s Holding in Arizona v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 47 A.L.R. Fed. 2d 657 (2009), That Police May Search Vehicle Incident to Recent Occupant’s Arrest Only if Arrestee is Within Reaching Distance of Passenger Compartment at Time of Search or it is Reasonable to Believe Vehicle Contains Evidence of Offense — Substantive Traffic Offenses. 55 A.L.R.6th 1.

Construction and Application of Supreme Court’s Holding in Arizona v. Gant, 129 S. Ct. 1710, 556 U.S. 332, 173 L. Ed. 2d 485, 47 A.L.R. Fed. 2d 657 (2009), that Police May Search Vehicle Incident to Recent Occupant’s Arrest Only if Arrestee Is Within Reaching Distance of Passenger Compartment at Time of Search or It Is Reasonable to Believe Vehicle Contains Evidence of Offense — Pretextual Traffic Offenses and Other Criminal Investigations. 56 A.L.R.6th 1.

Necessity of Rendering Medical Assistance as Circumstance Permitting Warrantless Entry or Search of Building or Premises. 58 A.L.R.6th 499.

Propriety of Execution of No-Knock Search Warrant. 59 A.L.R.6th 311.

Validity of Search of Wireless Communication Devices. 62 A.L.R.6th 161.

Search and Seizure: Reasonable Expectation of Privacy in Backyards. 62 A.L.R.6th 413.

Search and Seizure: Reasonable Expectation of Privacy in Outbuildings. 67 A.L.R.6th 531.

Search and Seizure: Reasonable Expectation of Privacy in Side Yards. 69 A.L.R.6th 275.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Search and Seizure Issues — Pretrial Motions — Suppression Motions Where No Warrant Involved. 71 A.L.R.6th 1.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Search and Seizure Issues — Pretrial Motions — Suppression Motions Where Warrant Was Involved. 72 A.L.R.6th 1.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for the Truth — Underlying Homicide and Assault Offenses. 72 A.L.R.6th 437.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Search and Seizure Issues — Pretrial Motions — Motions Other than for Suppression. 73 A.L.R.6th 1.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for Truth — Underlying Drug Offenses. 73 A.L.R.6th 49.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for the Truth — Underlying Sexual Offenses. 74 A.L.R.6th 69.

Permissibility under Fourth Amendment of investigatory traffic stop based solely on anonymous tip reporting drunk driving, 84 A.L.R.6th 293.

Expectation of privacy in and discovery of social networking web site postings and communications, 88 A.L.R.6th 319.

Sufficiency of information provided by confidential informant, whose identity is known to police, to provide probable cause for federal search warrant where there was no indication that informant provided reliable information to police in past—Cases decided after Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, 1983 U.S. LEXIS 54 (U.S. 1983).

Sufficiency of information provided by anonymous informant to provide probable cause for Federal search warrant — cases decided after Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, 1983 U.S. LEXIS 54 (U.S. 1983).

Validity of warrantless administrative inspection of business that is allegedly closely or pervasively regulated; cases decided since Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60, 1970 U.S. LEXIS 66 (U.S. 1970).

When are facts offered in support of search warrant for evidence of federal nondrug offense so untimely as to be stale, 187 A.L.R. Fed. 415.

Validity of warrantless search of motor vehicle based on odor of marijuana — Federal cases, 188 A.L.R. Fed. 487.

Validity of warrantless search of other than motor vehicle or occupant of motor vehicle based on odor of marijuana — Federal cases, 191 A.L.R. Fed. 303.

Validity of warrantless search of motor vehicle occupant based on odor of marijuana — Federal cases, 192 A.L.R. Fed. 391.

When Are Facts Offered in Support of Search Warrant for Evidence of Federal Drug Offense So Untimely As To Be Stale. 13 A.L.R. Fed. 2d 1.

Application of Fourth Amendment to Automobile Searches — Supreme Court Cases. 47 A.L.R. Fed 2d 197.

Law Reviews.

The Duration of Emergency Searches: The Investigative Search and the Issue of Re-Entry, 55 N.D. L. Rev. 7 (1979).

Perspectives on State v. Nagel: The North Dakota Supreme Court’s Discordant Medley of Fourth Amendment Doctrines,58 N.D. L. Rev. 727 (1982).

North Dakota Supreme Court Review (State v. Dunn, 2002 ND 189, 653 N.W.2d 688, see 79 N.D. L. Rev. 589 (2003).

Reflections on State v. Nagel: The State’s Perspective, 58 N.D. L. Rev. 745 (1982).

Search and Seizure Law and the Exclusionary Rule, 62 N.D. L. Rev. 17 (1986).

Establishment of Administrative Agency to Regulate Police, 62 N.D. L. Rev. 223 (1986).

Motor Homes and Search and Seizure: Comment on California v. Carney, 471 U.S. 386, 105 Sup. Ct. 2066, 85 L. Ed. 2d 406, 62 N.D. L. Rev. 285 (1986).

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to search and seizure, 66 N.D. L. Rev. 860 (1990).

An Analysis of the Gradual Erosion of the Fourth Amendment Regarding Voluntary Third Party Consent Searches: The Defendant’s Perspective, 72 N.D. L. Rev. 99 (1996).

Criminal Procedure — Evidence: Defining the Exclusionary Rule in the Information Age, 72 N.D. L. Rev. 1 (1996).

Criminal Procedure — Searches and Seizures: As Long as There is Probable Cause to Make a Traffic Stop, Pretextual Arrests are Constitutional, 73 N.D. L. Rev. 373 (1997).

When Should Ignorance Trump the Constitution? Another Dissent from Herrick II. 75 N.D. L. Rev. 747 (1999).

Criminal Law — Evidence “I Hear You Knocking, But You Can’t Come In”: The North Dakota Supreme Court Again Declines to Decide Whether the State Constitution Precludes a Good Faith Exception to the Exclusionary Rule: Comment on State v. Herrick, 1999 N.D. 1, 588 N.W.2d. 846, 76 N.D. L. Rev. 123 (2000).

North Dakota Supreme Court Review (State v. Oliver), 83 N.D. L. Rev. 1085 (2007).

North Dakota Supreme Court Review (State v. Hahne, 2007 ND 116, 736 N.W.2d 483 (2007)), see 84 N.D. L. Rev. 567 (2008).

North Dakota Supreme Court Review (Roth v. State, 2007 ND 112, 735 N.W.2d 882 (2007)), see 84 N.D. L. Rev. 567 (2008).

For Case Comment: Criminal Law — Search And Seizure: The North Dakota Supreme Court Adopts a Four-Prong Test To Determine Whether Miranda Warnings Are Sufficient to Cure a Fourth Amendment Violation State v. Gay, 2008 ND 84, 748 N.W.2d 408, see 85 N.D. L. Rev. 215 (2009).

North Dakota Supreme Court Review (State v. Lunde, 2008 ND 142, 752 N.W.2d 630 (2008)), 85 N.D. L. Rev. 503 (2009).

For article: Complying and Flying: Legal And Technical Issues Relating to the Operation of Unmanned Aerial Systems: Article: Big Brother Will Soon Be Watching — Or Will He? Constitutional, Regulatory, And Operational Issues Surrounding the Use of Unmanned Aerial Vehicles in Law Enforcement, see 85 N.D. L. Rev. 673 (2009).

Article: Constitutional Roadkill in the Courts: Looking To the Legislature To Protect North Dakota Motorists Against Almost Unlimited Police Power To Stop and Investigate Crime, see 86 N.D. L. Rev. 1 (2010).

Construction.

There is no plain and unequivocal language in the second sentence of this section which says that no suits can be brought against the state without authorization by the legislature, or that only the legislature can modify or waive the common-law doctrine of sovereign immunity. Much more specific and unequivocal language than the permissive language in the second sentence of this section is required to defeat the important substantive rights plainly guaranteed by the first sentence. Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

Administrative Hearing Procedure.

Under N.D.C.C. § 28-32-24(1), the rules of evidence applied to determine the admissibility of evidence at an administrative hearing to determine mother’s eligibility for medicaid benefits, including the prohibition of leading questions on direct examination; the mother was provided notice of the issues at the hearing and an opportunity to confront adverse witnesses and present her evidence, and she did not demonstrate that she was prejudiced in any manner by the conduct of the hearing. Hendrickson v. Olson, 2009 ND 16, 760 N.W.2d 116, 2009 N.D. LEXIS 15 (N.D. 2009).

Employee had an opportunity to present her evidence and she summarized what was said during the recorded conversations and other witnesses agreed with her summary; she did not object to the appeals referee’s decision not to include the tapes in the record, and the appeals referee did not err by failing to admit the tapes and the employee was not denied a fair hearing. Schweitzer v. Job Serv. N.D., 2009 ND 139, 770 N.W.2d 238, 2009 N.D. LEXIS 144 (N.D. 2009).

In a driver’s license revocation proceeding, a licensee was unable to establish that her due process rights had been violated based on certain comments made by a hearing officer that showed impatience with counsel’s objections. This was not a sufficient basis for showing that the hearing officer was biased. Dunn v. N.D. DOT, 2010 ND 41, 779 N.W.2d 628, 2010 N.D. LEXIS 39 (N.D. 2010).

Admission to the Bar.

Due process clause required that the North Dakota State Board of Law Examiners employ fair procedures in processing applications for admission to the bar and that a fair and impartial tribunal was a basic tenet of due process; although the record did not demonstrate intentional unethical behavior, on the facts presented, the board chairperson’s impartiality could reasonably have been questioned, and reasonable minds might have found an appearance of impropriety. Graves v. State Bd. of Law Examiners, 2004 ND 64, 677 N.W.2d 215, 2004 N.D. LEXIS 77 (N.D. 2004).

Amendment to Terms of Probation.

The trial court’s decision to amend the defendant’s terms of probation, in accordance with the State’s request, violated the defendant’s due process rights because the court acted before defendant’s timely answer to the State’s motion was received. State v. Ehli, 2003 ND 133, 667 N.W.2d 635, 2003 N.D. LEXIS 147 (N.D. 2003).

Compulsory Arbitration.

Compulsory arbitration of disputes arising out of highway construction and repair contracts, as provided by N.D.C.C. § 24-02-26, is not denial of due process under this section. Hjelle v. Sornsin Constr. Co., 173 N.W.2d 431, 1969 N.D. LEXIS 66 (N.D. 1969).

Order requiring arbitration between highway commissioner and subcontractor, as parties to state highway contract, did not violate this section where such arbitration was authorized by legislature in N.D.C.C. § 24-02-26. Nelson Paving Co. v. Hjelle, 207 N.W.2d 225, 1973 N.D. LEXIS 176 (N.D. 1973).

Court Fees and Bribes.

A requirement for reasonable court fees will be sustained, and is not unconstitutional as being a denial or sale of justice, provided that the fee is reasonable, is uniform in its application, and has some reasonable connection with the services rendered. Malin v. La Moure County, 27 N.D. 140, 145 N.W. 582, 1914 N.D. LEXIS 26 (N.D. 1914).

Chapter 119, S.L. 1919, providing graduated fees for the county court was invalid. Malin v. La Moure County, 27 N.D. 140, 145 N.W. 582, 1914 N.D. LEXIS 26 (N.D. 1914).

This section is aimed not merely against bribery and the direct selling of justice by magistrates and officials, but against the unreasonable restraints upon and charges for the use of the courts. Malin v. La Moure County, 27 N.D. 140, 145 N.W. 582, 1914 N.D. LEXIS 26 (N.D. 1914).

Where corruption of the trial court by bribery is shown to exist, it just as effectively terminates the power of the court to proceed in the matter before him as in the case of the filing of an affidavit of prejudice. Tuttle v. Tuttle, 48 N.D. 10, 181 N.W. 898, 1921 N.D. LEXIS 2 (N.D. 1921).

Delay.

The question of delay is a relative question, and what does or does not constitute delay depends largely upon surrounding circumstances, the work imposed upon the judge, and other conditions. Stockwell v. Crawford, 21 N.D. 261, 130 N.W. 225, 1911 N.D. LEXIS 140 (N.D. 1911).

Disorderly Conduct Restraining Order.

District court errs as a matter of law when it denies a respondent the full and fair hearing mandated by N.D.C.C. § 12.1-31.2-01 and due process. The same rule applies to a review of a magistrate’s decision under N.D.C.C. § 27-05-31. Harris v. Harris, 2010 ND 45, 779 N.W.2d 642, 2010 N.D. LEXIS 44 (N.D. 2010).

Husband was denied due process because he was not afforded a full hearing before a magistrate entered a disorderly conduct restraining order under N.D.C.C. § 12.1-31.2-01(5)(d); no evidence was offered by the wife during the proceeding to support the allegations in her petition, and the husband was not given an opportunity to rebut any of the allegations. The magistrate’s focus on dispensing with the evidentiary hearing in his case could have been viewed as subtle coercion; therefore, the husband did not voluntarily, knowingly, and intelligently waive his right to the hearing. Harris v. Harris, 2010 ND 45, 779 N.W.2d 642, 2010 N.D. LEXIS 44 (N.D. 2010).

Driver’s License Revocation.

Trial courts properly held that the North Dakota Department of Transportation had authority to revoke plaintiffs’ driving privileges after they were arrested for driving under the influence of alcohol and refused to consent to sobriety tests where plaintiffs had adequate notice of the nature of the hearings and were informed in advance about the issues to be addressed. Whitecalfe v. N.D. DOT, 2007 ND 32, 727 N.W.2d 779, 2007 N.D. LEXIS 26 (N.D. 2007).

Driver’s license is a protectable property interest, which may not be suspended or revoked without due process, and therefore a driver is entitled to procedural due process in an administrative hearing to revoke or suspend his or her license. Whitecalfe v. N.D. DOT, 2007 ND 32, 727 N.W.2d 779, 2007 N.D. LEXIS 26 (N.D. 2007).

Driver’s License Suspension.

Driver had no cause of action arising from an erroneous license suspension; clerks of court had no authority under N.D.C.C. tit. 39 to suspend licenses, quasi-judicial immunity protected the Director of the North Dakota Department of Transportation pursuant to N.D.C.C. § 32-12.2-02(3)(d), and no private right of action existed against the State under N.D. Const. art. I, § 9 for acts not described in N.D.C.C. § 32-12.2-02(1). Kouba v. State, 2004 ND 186, 687 N.W.2d 466, 2004 N.D. LEXIS 321 (N.D. 2004).

North Dakota Department of Transportation violated plaintiff’s right to due process at a license suspension hearing when it took the arresting officer’s testimony telephonically without notice under N.D.C.C. § 28-32-35; the hearing officer could not see the police officer to judge his demeanor or determine if he was testifying from notes. The officer was also unable to diagram the roadway where the stop occurred or demonstrate how he conducted the field sobriety test; this led to an unfair hearing. Wolfer v. N.D. DOT, 2010 ND 59, 780 N.W.2d 645, 2010 N.D. LEXIS 58 (N.D. 2010).

Housing Authority Law.

The provision in section § 23-1104, R.C. 1943 to the effect that “the housing authority shall be conclusively deemed to have become established and authorized to transact business and exercise its powers hereunder upon proof of the adoption of a resolution by the governing body of the city or county declaring the need for the housing authority” does not violate the provisions of this section. Ferch v. Housing Auth., 79 N.D. 764, 59 N.W.2d 849, 1953 N.D. LEXIS 76 (N.D. 1953).

Indians.

Refusal of state court to assume jurisdiction over civil suit by Indian plaintiff against Indian defendant, arising out of events occurring on reservation, did not violate open courts or due process provisions of this section, since Indians involved had never accepted state civil jurisdiction as provided in N.D.C.C. ch. 29-17. Gourneau v. Smith, 207 N.W.2d 256, 1973 N.D. LEXIS 177 (N.D. 1973), disapproved, Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 104 S. Ct. 2267, 81 L. Ed. 2d 113, 1984 U.S. LEXIS 8 (U.S. 1984).

Juvenile court properly transferred jurisdiction of a parental termination proceeding to a Tribal Court under the Indian Child Welfare Act (ICWA), 25 USCS § 1901 et seq., which was constitutional under a rational basis test because it was rationally related to the protection of the integrity of American Indian families and tribes and to the fulfillment of Congress’s unique guardianship obligation toward Indians. Hoots v. K.B. (In the Interest of A.B.), 2003 ND 98, 663 N.W.2d 625, 2003 N.D. LEXIS 112 (N.D. 2003), cert. denied, 541 U.S. 972, 124 S. Ct. 1875, 158 L. Ed. 2d 466, 2004 U.S. LEXIS 2569 (U.S. 2004).

Injury to Reputation.

For a wrong perpetrated upon a person’s reputation he may recover his damages. Meyerle v. Pioneer Publishing Co., 45 N.D. 568, 178 N.W. 792, 1920 N.D. LEXIS 161 (N.D. 1920).

Jury.

This section was not intended to promote the North Dakota supreme court to the position of a super-legislature in charge of ensuring perfect justice and complete remedies, thereby supplanting the traditional function of the jury, the standards employed to evaluate a jury decision, and the rules of evidence, such as Rule 606(b), that protect jury independence by preventing judicial overseeing of the internal workings of the jury. Andrews v. O'Hearn, 387 N.W.2d 716, 1986 N.D. LEXIS 312 (N.D. 1986).

Likelihood of Successful Appeal.

Counsel and their clients should be permitted to present issues that could arguably be correct, even if it is extremely unlikely that they will win on appeal. Williams v. State, 405 N.W.2d 615, 1987 N.D. LEXIS 316 (N.D. 1987).

Medical Board Disciplinary Proceedings.

Doctor, whose license to practice medicine was revoked by the North Dakota State Board of Medical Examiners, had no due process right to a face-to-face confrontation with the Board. Jones v. N.D. State Bd. of Med. Exam'rs - Investigative Panel B, 2005 ND 22, 691 N.W.2d 251, 2005 N.D. LEXIS 14 (N.D. 2005).

In medical disciplinary proceedings, the North Dakota State Board of Medical Examiners was the ultimate fact finder and consisted mostly of physicians who were trained and experienced in the profession, which, coupled with the procedural safeguards envisioned by the medical disciplinary procedural statutes, minimized the risk of error. Thus, the preponderance of evidence standard for medical disciplinary proceedings satisfied due process. N.D. State Bd. of Med. Exam'rs v. Hsu, 2007 ND 9, 726 N.W.2d 216, 2007 N.D. LEXIS 9 (N.D. 2007).

Doctor’s right to due process was not violated during medical board disciplinary proceedings where one of the investigators for the North Dakota State Board of Medical Examiners had an alleged personal and financial conflict of interest in the case, because the statutory scheme for the Board and its investigative panels precluded Board members, like the investigator who served on an investigative panel, from participating in adjudicatory proceedings before the Board on that complaint. The statutory scheme for the Board’s investigative panels, coupled with the other statutory procedures for adjudication by the Board, provided adequate procedural safeguards to satisfy the requirements for due process, and the investigator’s participation in the investigation of the complaints did not violate due process and, therefore, the district court did not err in deciding the Board did not violate the doctor’s due process or equal protection rights. N.D. State Bd. of Med. Exam'rs v. Hsu, 2007 ND 9, 726 N.W.2d 216, 2007 N.D. LEXIS 9 (N.D. 2007).

Personal Jurisdiction.

District court’s exercise of personal jurisdiction over a Montana bank was constitutionally impermissible where the bank’s conduct and connection with North Dakota were not such that it should reasonably have anticipated being haled into court there; although the bank occasionally loaned money to North Dakota customers, it did not solicit customers in North Dakota, the loans were originated in Montana, and the bank had no physical presence in North Dakota. The bank’s limited contacts with North Dakota were not sufficiently continuous and systematic to justify the exercise of general personal jurisdiction, and the loans the bank made to North Dakota customers did not support specific personal jurisdiction. Ensign v. Bank of Baker, 2004 ND 56, 676 N.W.2d 786, 2004 N.D. LEXIS 71 (N.D. 2004).

In a suit brought against a Colorado law firm by a North Dakota attorney to enforce a purported fee sharing contract, there were insufficient contacts with North Dakota to support personal jurisdiction over the law firm where the contract, if there was one, was entered into in Colorado, the underlying case was filed in Colorado, and all of the depositions, preparation of interrogatories and witnesses, and representation of the clients during the settlement conference and arbitration had been conducted in Colorado. The exercise of personal jurisdiction would have offended traditional notions of justice and fair play under the concept of due process. Bolinske v. Herd, 2004 ND 217, 689 N.W.2d 397, 2004 N.D. LEXIS 352 (N.D. 2004).

Having served North Dakota 21 times, resulting in the shipment of 28 patella tendons during the 2 years preceding a patient’s surgery, a Texas company purposefully directed its activities toward North Dakota and the trial court did not err in denying the company’s motion to dismiss a patient’s negligence suit for lack of personal jurisdiction because the company should reasonably have anticipated being haled into a North Dakota court to defend against an alleged defect in its products. Beaudoin v. S. Tex. Blood & Tissue Ctr., 2005 ND 120, 699 N.W.2d 421, 2005 N.D. LEXIS 137 (N.D. 2005).

Simply because a state does not account for a proportionately high level of a company’s orders or revenues does not foreclose a finding that the company has sufficient minimum contacts with the forum state to ground personal jurisdiction. Beaudoin v. S. Tex. Blood & Tissue Ctr., 2005 ND 120, 699 N.W.2d 421, 2005 N.D. LEXIS 137 (N.D. 2005).

Trial court did not err in denying a Texas company’s motion to dismiss for lack of personal jurisdiction where, despite both the Texas defendant and the North Dakota patient relying on a Connecticut company to help initially structure and facilitate the transaction, it was the Texas company that chose to consummate the deal by shipping the patella tendon to North Dakota, an affirmative, active, and direct contact with the state. Beaudoin v. S. Tex. Blood & Tissue Ctr., 2005 ND 120, 699 N.W.2d 421, 2005 N.D. LEXIS 137 (N.D. 2005).

Political Subdivision Liability.

The legislative history of the recreational use statute does not disclose any reason why a recreational user of public lands could not recover for personal injuries when a non-recreational user could, and without a close correspondence with legislative goals supporting this classification, the statute might fail an equal protection challenge. Hovland v. City of Grand Forks, 1997 ND 95, 563 N.W.2d 384, 1997 N.D. LEXIS 89 (N.D. 1997).

Public’s Right of Access to Court Proceedings.

While the “all courts shall be open” language of this section provides the public a right of access to court proceedings, such right is not absolute and is subject to limitations. KFGO Radio v. Rothe, 298 N.W.2d 505, 1980 N.D. LEXIS 296 (N.D. 1980).

—Preliminary Examination.

Because a preliminary examination in a criminal case is not a trial or pretrial proceeding, the constitutional provisions of this section providing that all courts shall be open and the sixth amendment of the federal constitution do not apply to preliminary examinations with the same force and effect as they apply to trials. Dickinson Newspapers v. Jorgensen, 338 N.W.2d 72, 1983 N.D. LEXIS 372 (N.D. 1983).

Removal of Officers.

The power to remove from office is administrative rather than judicial, and the state is not so bound by the term “due process of law” that it is impossible for it to investigate its agents without subjecting itself to the delays and uncertainties of strict judicial action. State ex rel. Shaw v. Frazier, 39 N.D. 430, 167 N.W. 510, 1918 N.D. LEXIS 40 (N.D. 1918).

Searches and Seizures, Generally.

District court properly denied defendant's motion to suppress evidence obtained from his backpack because the officer did not exceed the scope of the initial invasion of privacy since he did not search the bag until he obtained a search warrant; law enforcement was not involved in any impropriety in seizing the backpack from an apartment because the search and seizure of the backpack were the actions of a private individual, the landlord, and thus, the Fourth Amendment did not apply. State v. Heier, 2016 ND 158, 883 N.W.2d 454, 2016 N.D. LEXIS 159 (N.D. 2016).

Service of Notice by Mail.

N.D.C.C. § 57-28-04 is not unconstitutional as a violation of equal protection of the laws under Article I, §§ 21 and 22 of the state Constitution, or Amendment Fourteen, § 1 of the United States Constitution, nor is it a violation of due process of law under this section, or Amendment Fourteen, § 1 of the United States Constitution, by permitting service of notice by registered mail for the expiration of periods of redemption for real property. Mund v. Rambough, 432 N.W.2d 50, 1988 N.D. LEXIS 225 (N.D. 1988).

Sex Offender Commitment.

Supreme Court of North Dakota construes the definition of a sexually dangerous individual in N.D.C.C. § 25-03.3-01(8) to mean that proof of a nexus between the requisite disorder and dangerousness encompasses proof that the disorder involves serious difficulty in controlling behavior and suffices to distinguish a dangerous sexual offender whose disorder subjects him to civil commitment from the dangerous but typical recidivist in the ordinary criminal case. That nexus between the requisite disorder and future dangerousness satisfies the due process requirements. Van Grinsven v. G.R.H. (In re G.R.H.), 2006 ND 56, 711 N.W.2d 587, 2006 N.D. LEXIS 70 (N.D. 2006).

N.D.C.C. § 25-03.3-13, which authorizes the executive director of the North Dakota Department of Human Services to determine the least restrictive treatment, does not negate the civil nature of the law and does not violate the double jeopardy provisions of the state and federal constitutions; moreover, there are pre-commitment and post-commitment safeguards designed to protect liberty interests as a person proceeds through the treatment process, so due process is also not violated. Van Grinsven v. G.R.H. (In re G.R.H.), 2006 ND 56, 711 N.W.2d 587, 2006 N.D. LEXIS 70 (N.D. 2006).

Skiing Responsibility Act.

Because the Skiing Responsibility Act found in N.D.C.C. ch. 53-09 does not operate as an absolute bar to recovery, it did not act as a denial of plaintiff’s access to the courts, as protected by this section. Bouchard v. Johnson, 555 N.W.2d 81, 1996 N.D. LEXIS 229 (N.D. 1996).

Standard of Review.

Interpretation of recreational use statute that would limit recovery from city for personal injury would be examined under an intermediate standard of review, requiring a “close correspondence between statutory classification and legislative goals.” Hovland v. City of Grand Forks, 1997 ND 95, 563 N.W.2d 384, 1997 N.D. LEXIS 89 (N.D. 1997).

State Employee’s Tort Liability.

The mantle of governmental immunity does not protect an employee of the state from personal liability for his negligent acts of commission. Spielman v. State, 91 N.W.2d 627, 1958 N.D. LEXIS 86 (N.D. 1958), overruled, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

State’s Attorney’s Inquiry.

State’s attorney’s inquiry conducted under section 11-16-15 is within the scope of this section and is open to the public. KFGO Radio v. Rothe, 298 N.W.2d 505, 1980 N.D. LEXIS 296 (N.D. 1980).

Statutory Damages Cap.

N.D.C.C. § 32-12.1-03(2) did not violate N.D. Const. art. I, § 9, as it was not an absolute bar to a money damages remedy and did not set an arbitrarily low limit that was the functional equivalent of an absolute bar. Larimore Pub. Sch. Dist. No. 44 v. Aamodt, 2018 ND 71, 908 N.W.2d 442, 2018 N.D. LEXIS 75 (N.D. 2018).

Suit Against State.

The courts will look through and beyond the nominal parties to an action to determine who are the real parties in interest, and where the state is not specifically named as a party defendant, the omission is not conclusive that the suit is not against the state, nor that the state is not the real party in interest. State ex rel. Shafer v. Lowe, 54 N.D. 637, 210 N.W. 501, 1926 N.D. LEXIS 72 (N.D. 1926), overruled in part, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

An action against the state for money had and received to recover excessive income taxes is an action “arising upon contract” within the statute authorizing an action against the state. Ford Motor Co. v. State, 59 N.D. 792, 231 N.W. 883, 1930 N.D. LEXIS 197 (N.D. 1930).

An action respecting the title to property, or arising upon contract, may be brought in the district court against the state the same as against a private person. Dunham Lumber Co. v. Gresz, 70 N.D. 455, 295 N.W. 500, 1940 N.D. LEXIS 193 (N.D. 1940), overruled in part, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994); Brye v. Greenfield, 70 N.D. 597, 296 N.W. 746, 1941 N.D. LEXIS 205 (N.D. 1941).

An action brought to foreclose a mortgage on real estate in which the state claims an interest as being an owner of a portion thereof is an action respecting title to property, and is such an action that may be brought against the state. Johnson v. Brunner, 71 N.D. 446, 1 N.W.2d 871, 1942 N.D. LEXIS 78 (N.D. 1942).

A suit against the state highway commissioner in his official capacity is in effect a suit against the state subject to the same defenses and immunities as though the action had been brought directly against the state. Spielman v. State, 91 N.W.2d 627, 1958 N.D. LEXIS 86 (N.D. 1958), overruled, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

Since the state was not a necessary party to action against poultry improvement board for a declaration of rights, status, and other legal relations of licensee, consent of state to bringing of action was not necessary. Ralston Purina Co. v. Hagemeister, 188 N.W.2d 405, 1971 N.D. LEXIS 156 (N.D. 1971).

Immunity of state from suit is not waived by its purchase of liability insurance covering employees under section 39-01-08 where it does not also purchase insurance covering itself. Wright v. State, 189 N.W.2d 675, 1971 N.D. LEXIS 138 (N.D. 1971), overruled, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

—Sovereign Immunity.

Governmental immunity from tort liability to individual citizens is abolished; governmental bodies, other than the state government, are subject to suit for damages by individuals injured by the negligent or wrongful acts or omissions of their agents and employees in the execution of activity; and no distinction is retained between governmental and proprietary functions. Kitto v. Minot Park Dist., 224 N.W.2d 795 (N.D. 1974), overruled in part, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632 (N.D. 1994). But see, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

The state was the real party in interest, the action was not an action arising upon contract for which sovereign immunity has been waived under N.D.C.C. § 32-12-02, and state could constitutionally raise sovereign immunity as a bar to plaintiff’s action where plaintiff brought action against state official in his official capacity only alleging direct causes of action under the federal and state constitutions and 42 USCS § 1983, claiming that failure to renew his position as branch manager of a state motor vehicle branch office was because of his political party affiliation and in violation of his constitutional and civil rights. Kristensen v. Strinden, 343 N.W.2d 67, 1983 N.D. LEXIS 438 (N.D. 1983).

Nothing in this section elevates the common-law doctrine of sovereign immunity to constitutional status, or precludes the state supreme court from abolishing that common-law doctrine. Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

Abolition of the state’s sovereign immunity from tort liability does not impose tort liability on the state for the exercise of discretionary acts in its official capacity, including legislative, judicial, quasi-legislative, and quasi-judicial functions. Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

Abrogration of the state’s sovereign immunity from tort liability should be prospective. Sovereign immunity is abolished for claims arising fifteen days after adjournment of the fifty-fourth legislative assembly. Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

Tax Sales.

The sale of taxed property for special assessments and general taxes offered together, where the bid is made in one sum, is void as being in violation of this section. Trustee Loan Co. v. Botz, 37 N.D. 230, 164 N.W. 14, 1917 N.D. LEXIS 107 (N.D. 1917).

Termination of Parental Rights.

Where petition for termination of parental rights and the supporting affidavit, incorporated into the petition by reference, contained many factual assertions concerning the father’s conduct as a parent and where the father appeared for trial and did not seem prejudiced by the petition or unable to defend against the charges, although the facts in the petition were not necessarily the same as the facts relied on by the referee in reaching the juvenile court’s final decision, the father had notice of the facts the social worker would use to support terminating the father’s parental rights; thus, the contents of the petition complied with the statutory requirements in N.D.C.C. § 27-20-21 and his due process rights were not violated. Sorum v. Dir., Cass County Soc. Servs. (In the Interest of M.B.), 2006 ND 19, 709 N.W.2d 11, 2006 N.D. LEXIS 19 (N.D. 2006).

Trial Procedure.

Trial court’s failure to order recording of closing arguments did not violate defendant’s right to due process. Fenske v. Fenske, 542 N.W.2d 98, 1996 N.D. LEXIS 20 (N.D. 1996).

District court did not deprive the mother and grandmother of their right to procedural due process where they had three separate opportunities to be heard and were afforded a meaningful and reasonable opportunity to present evidence on the relevant issues. Hartleib v. Simes, 2009 ND 205, 776 N.W.2d 217, 2009 N.D. LEXIS 217 (N.D. 2009), overruled in part, State v. G.L. (In re G.L.), 2018 ND 176, 915 N.W.2d 685, 2018 N.D. LEXIS 185 (N.D. 2018).

Unemployment Benefits.

County was not denied due process and a fair hearing in an unemployment benefits case where it did not subpoena former employees to testify regarding their subsequent employment history, and the only evidence in the record regarding information the claimants provided when they applied for benefits and the circumstances under which they left their subsequent employers was provided by Job Service staff. Grand Forks County v. Tollefson, 2004 ND 161, 684 N.W.2d 646, 2004 N.D. LEXIS 290 (N.D. 2004).

Unenforceable Contract.

When the contract which a court of equity is asked to enforce is not only impliedly forbidden, but is also contrary to a well-defined legislative policy, the court will refuse to give any relief thereunder. Divide County v. Baird, 55 N.D. 45, 212 N.W. 236, 1926 N.D. LEXIS 42 (N.D. 1926).

Vexatious Litigant.

Because most of the motions, pleadings, letters and other documents a child’s father filed were frivolous and unsupported by good faith arguments, the district court did not abuse its discretion in finding the father a vexatious litigant and limiting his access to the court. Although the father’s access to the court had been restricted, the father retained reasonable access to the court system through a pre-filing order requiring him to obtain leave of a judge. Smith v. Erickson, 2019 ND 48, 923 N.W.2d 503, 2019 N.D. LEXIS 56 (N.D. 2019)

Worker’s Compensation.

The allowance of a claim against the workmen’s compensation fund which acts as a bar to the claimant’s common-law recovery does not contravene the provisions of this section. Ethen v. North Dakota Workmen's Compensation Bureau, 62 N.D. 394, 244 N.W. 32, 1932 N.D. LEXIS 193 (N.D. 1932).

If a workers’ compensation claimant’s due process rights are violated when he receives a notice that does not adequately set forth workforce safety and insurance’s (WSI) theories and evidence supporting termination of benefits because it deprives him of the opportunity to meaningfully respond, then certainly the failure to receive any notice at all, which completely deprives the claimant of any opportunity to respond or to seek a hearing, is also a denial of due process. Rojas v. Workforce Safety & Ins., 2005 ND 147, 703 N.W.2d 299, 2005 N.D. LEXIS 182 (N.D. 2005).

Where an ALJ and workforce safety and insurance (WSI) found that a claimant had never received the mailed notice of intention to discontinue/reduce his benefits (NOID), WSI’s termination of his ongoing disability benefits violated due process as he had not received prior notice or an opportunity to respond and his benefits were reinstated as of the date of their termination. Rojas v. Workforce Safety & Ins., 2005 ND 147, 703 N.W.2d 299, 2005 N.D. LEXIS 182 (N.D. 2005).

Collateral References.

Constitutional Law 321-328.

16B Am. Jur. 2d, Constitutional Law, §§ 620-626, 890-972.

16D C.J.S. Constitutional Law, §§ 2150-2161.

School’s violation of student’s substantive due process rights by suspending or expelling student, 90 A.L.R.6th 235.

Construction and application of Parratt-Hudson doctrine, providing that where deprivation of property interest is occasioned by random and unauthorized conduct of state officials, procedural due process inquiry is limited to issue of adequacy of postdeprivation remedies provided by state, 89 A.L.R.6th 1.

State’s liability to one injured by improperly licensed driver, 41 A.L.R.4th 111.

Validity and construction of statute or ordinance limiting the kinds or amount of actual damages recoverable in tort action against governmental unit, 43 A.L.R.4th 19.

Application of Stigma-Plus Due Process Claims to Education Context. 41 A.L.R.6th 391.

When Does Use of Taser Constitute Violation of Constitutional Rights. 45 A.L.R.6th 1.

Failure of State Prosecutor to Disclose Exculpatory Physical Evidence as Violating Due Process — Evidence Other Than Weapons or Personal Items. 56 A.L.R.6th 185.

Equal protection and due process clause challenges based on racial discrimination — Supreme Court cases, 172 A.L.R. Fed. 1.

Law Reviews.

The Statute of Limitations in North Dakota’s Products Liability Act: An Exercise in Futility?, 59 N.D. L. Rev. 551 (1983).

Political Subdivision Liability in North Dakota: Current Status, Future Prospects, 62 N.D. L. Rev. 381 (1986).

Summary of the 1991 North Dakota Supreme Court decisions on Sovereign Immunity, 68 N.D. L. Rev. 806 (1992).

Sovereign Immunity — Judicial Abrogation of North Dakota’s Sovereign Immunity Results in Its Possible Legislative Reassertion and Legislation to Provide Injured Parties with a Remedy for the Torts Committed by the State or Its Agents, 71 N.D. L. Rev. 761 (1995).

Summary of North Dakota Supreme Court Decisions on Constitutional Law — Sovereign Immunity, 71 N.D. L. Rev. 853 (1995).

“The Filed Rate Doctrine and Insurance Fraud Litigation,” 76 N.D. L. Rev. 1 (2000).

Amendment of Information.

If no offense is charged, the prosecution may, by leave of court, amend the information in the county to which the trial is removed. State v. Woods, 24 N.D. 156, 139 N.W. 321, 1912 N.D. LEXIS 21 (N.D. 1912).

Change of Judge Who Denied Jury Trial.

Supreme court would grant change of judge where the judge had denied a demand for jury trial and would be presiding at the trial on the merits. United Hosp. v. Hagen, 285 N.W.2d 586, 1979 N.D. LEXIS 316 (N.D. 1979).

Duties of State’s Attorney.

As to both civil and criminal cases the state’s attorney is vested with important duties requiring the exercise of judgment and discretion. State ex rel. Ilvedson v. District Court, 70 N.D. 17, 291 N.W. 620, 1940 N.D. LEXIS 143 (N.D. 1940).

Misdemeanor Cases.

Misdemeanor cases may be prosecuted by information. State v. Buehler, 125 N.W.2d 155, 1963 N.D. LEXIS 130 (N.D. 1963).

Prosecution of Militiamen.

This section forbids the prosecution of militiamen for felonies by a court-martial except when in actual service in time of war or public danger unless there is a statutory provision providing otherwise. State ex rel. Poole v. Peake, 22 N.D. 457, 135 N.W. 197, 1912 N.D. LEXIS 58 (N.D. 1912).

Regulation of Grand Jury.

When the legislature has prescribed the manner of selecting names for a jury list and the drawing of a grand jury panel from such list, and has further enumerated the specific grounds of challenge to an individual juror, or to the panel, the grounds so enumerated are exclusive. State v. Walla, 57 N.D. 726, 224 N.W. 211, 1929 N.D. LEXIS 320 (N.D. 1929).

Requirement of Information.

An information which substantially complies with the requirements of section 29-05-01 for a criminal complaint is adequate under this section and section 29-01-13, subsection 4. State v. Buehler, 125 N.W.2d 155, 1963 N.D. LEXIS 130 (N.D. 1963).

Collateral References.

41 Am. Jur. 2d, Indictments and Informations, §§ 9, 10.

42 C.J.S. Indictments and Informations, §§ 5-15.

Right to waive indictment, information, or other formal accusation, 56 A.L.R.2d 837.

Absolute Right to Bail.

A defendant has an absolute right to bail in a capital case, unless the proof of the commission of the offense or the presumption thereof is great. In re West, 10 N.D. 464, 88 N.W. 88, 1901 N.D. LEXIS 62 (N.D. 1901).

One charged with murder is not entitled to bail as a strict legal right, if the proof of guilt is evident or the presumption thereof is great. State v. Hartzell, 13 N.D. 356, 100 N.W. 745, 1904 N.D. LEXIS 47 (N.D. 1904).

Bail Pending Appeal.

This section applies to bail before conviction, and not pending an appeal. State v. Tucker, 57 N.D. 508, 222 N.W. 651, 1928 N.D. LEXIS 156 (N.D. 1928).

Excessive Fines.

Penalties assessed against a waste hauler for dumping produced saltwater on a public road were not excessive under N.D. Const. art. I, § 11, where the fine was authorized by N.D.C.C. § 38-08-16(1), and there was no evidence that the volume of saltwater discharged and the resulting environmental harm were minimal. Black Hills Trucking Inc. v. N.D. Indus. Comm'n, 2017 ND 284, 904 N.W.2d 326, 2017 N.D. LEXIS 294 (N.D. 2017).

“Cruel” and “Unusual” Defined.

Imprisonment in the state penitentiary for three years, upon a conviction for grand larceny, is not a “cruel and unusual punishment”. State v. Jochim, 55 N.D. 313, 213 N.W. 484, 1927 N.D. LEXIS 39 (N.D. 1927).

“Cruel” as applied to punishment for crime, refers to the form of punishment, and “unusual” refers to its frequency. State v. Kingen, 58 N.D. 327, 226 N.W. 505, 1929 N.D. LEXIS 214 (N.D. 1929).

A statute which authorizes the imposition of a more severe penalty upon one convicted of the larceny of poultry and livestock does not contravene the provision of this section prohibiting the infliction of cruel and unusual punishments. State v. Kingen, 58 N.D. 327, 226 N.W. 505, 1929 N.D. LEXIS 214 (N.D. 1929).

Delay in Bringing Before Magistrate.

Fact that defendant was incarcerated for a 38-hour period without benefit of counsel from time of arrest to appearance before a magistrate did not of itself establish that defendant was denied bail for reasons of prejudice and harassment. State v. Goeller, 264 N.W.2d 472, 1978 N.D. LEXIS 240 (N.D.), cert. denied, 439 U.S. 953, 99 S. Ct. 350, 58 L. Ed. 2d 344, 1978 U.S. LEXIS 3721 (U.S. 1978).

Detainment for Extradition.

The bail provisions of this statute do not apply to persons who are held under executive warrants of rendition in extradition proceedings. In re Amundson, 74 N.D. 83, 19 N.W.2d 918, 1945 N.D. LEXIS 55 (N.D. 1945).

Excessive Fines.

Sentencing defendant to pay the maximum fine authorized for the offense plus costs for witness fees and mileage pursuant to N.D.C.C. § 31-01-16 did not violate this section’s prohibition against excessive fines. State v. Flohr, 310 N.W.2d 735, 1981 N.D. LEXIS 329 (N.D. 1981).

The excessive fine clause of this section did not apply to an award of punitive damages in a case between private parties. Stoner v. Nash Finch, Inc., 446 N.W.2d 747, 1989 N.D. LEXIS 187 (N.D. 1989).

Issue Moot.

Reviewing court overruled defendant’s assertion his pretrial bail in the amount of $ 25,000 cash was excessive, because the issue was moot, when defendant did not claim the amount of bail prejudiced him in the preparation of his defense. State v. Skarsgard, 2007 ND 160, 739 N.W.2d 786, 2007 N.D. LEXIS 166 (N.D. 2007).

Medical Care.

Reviewing court overruled defendant’s assertion that the charges should be dismissed since the county jail where he was held before trial was unable to effectively meet his physical and medical needs in violation of the cruel and unusual punishment clauses of the state and federal constitutions, because defendant had not established systemic disregard of the law, when defendant was allowed access to his support hose and blood pressure checks upon request, plastic chairs for the shower and extra mattresses for the bed were made available, and defendant did not claim inmates in general had their medical needs overlooked by jail staff. State v. Skarsgard, 2007 ND 160, 739 N.W.2d 786, 2007 N.D. LEXIS 166 (N.D. 2007).

Collateral References.

Bail 41-45, 52; Criminal Law 1213, 1214; Witnesses 20.

8A Am. Jur. 2d, Bail and Recognizance, §§ 22-28.

8 C.J.S. Bail Release and Detention Pending Proceedings §§ 7, 9-55, 57-60; 23A C.J.S. Criminal Law, §§ 2195-2219.

Construction and application of Eighth Amendment’s prohibition of cruel and unusual punishment — U.S. Supreme Court cases, 78 A.L.R. Fed. 2d 1.

Failure to appear, and the like, resulting in forefeiture or conditional forfeiture of bail, as affecting right to second admission to bail in same noncapital criminal case, 29 A.L.R.2d 945.

Court’s power and duty, pending determination of habeas corpus proceedings on merits, to admit petitioner to bail, 56 A.L.R.2d 668.

Insanity of accused as affecting right to bail in criminal case, 11 A.L.R.3d 1385.

Right of bail in proceedings in juvenile courts, 53 A.L.R.3d 848.

Pretrial preventive detention by state court, 75 A.L.R.3d 956.

Bail: effect on surety’s liability under bail bond of principal’s incarceration in other jurisdiction, 33 A.L.R.4th 663.

Bail: effect on surety’s liability under bail bond of principal’s subsequent incarceration in same jurisdiction, 35 A.L.R.4th 1192.

Propriety of carrying out death sentences against mentally ill individuals, 111 A.L.R.5th 491.

Application of constitutional rule of Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), that execution of mentally retarded persons constitutes “cruel and unusual punishment” in violation of Eighth Amendment, 122 A.L.R.5th 145.

When does forfeiture of real property violate excessive fines clause of Eighth Amendment or state constitutions-State cases, 124 A.L.R.5th 509.

Prison Inmate’s Eighth Amendment Rights to Treatment for Sleep Disorders. 68 A.L.R.6th 389.

When does forfeiture of real property violate excessive fines clause of Eighth Amendment — post-Austin cases, 168 A.L.R. Fed. 375.

When does forfeiture of motor vehicle pursuant to federal statute violate excessive fines clause of Eighth Amendment, 169 A.L.R. Fed. 615.

Excessive fines clause of Eighth Amendment — Supreme Court cases, 172 A.L.R. Fed. 389.

I. Speedy and Public Trial.

In General.

Where state filed warrant of arrest as detainer against accused imprisoned in neighboring state prison and made reasonable efforts in good faith to extradite him for trial, accused’s petition to withdraw the detainer because he had not been granted speedy trial was dismissed, since delay was caused by inaction of neighboring state officials and not bad faith or lack of diligence by North Dakota officials. Morris v. McGee, 180 N.W.2d 659, 1970 N.D. LEXIS 125 (N.D. 1970).

A ten-month delay between arraignment and trial for murder did not deprive defendant of his constitutional right to a speedy trial where the delay was due to appropriate and necessary pretrial preparations, continuances requested by defendant, an appeal by the state of a suppression order, and defendant did not show how the delay hampered his defense. State v. Dilger, 338 N.W.2d 87, 1983 N.D. LEXIS 373 (N.D. 1983).

Factors to be assessed in determining whether a defendant has been deprived of his right to a speedy trial are length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. State v. Dilger, 338 N.W.2d 87, 1983 N.D. LEXIS 373 (N.D. 1983).

The right to a speedy trial does not attach until a defendant in some way becomes an accused; which can come about by a formal indictment or information or by the actual restraints imposed by arrest and holding to answer a criminal charge. State v. Denny, 350 N.W.2d 25, 1984 N.D. LEXIS 432 (N.D. 1984).

Right to a speedy trial attaches after defendant in some way becomes the accused. State v. Weisz, 356 N.W.2d 462, 1984 N.D. LEXIS 399 (N.D. 1984).

The constitutional right to a speedy trial does not apply to probation revocation proceedings. State v. Gefroh, 458 N.W.2d 479, 1990 N.D. LEXIS 143 (N.D. 1990).

Defendant’s improper attempts to invoke Interstate Agreement on Detainers did not constitute a proper request for a speedy trial, much of the delay was attributable to motions filed by the defendant, and the defendant did not demonstrate that his ability to defend against charges was impaired by the delay. State v. Moe, 1998 ND 137, 581 N.W.2d 468, 1998 N.D. LEXIS 147 (N.D. 1998).

Defendant’s right to a speedy trial was not violated where he failed to inform the district court of his change of address when he was transported from another county, failed to object when hearings were rescheduled, failed to request immediate disposition of the charges during his preliminary hearings, and failed to follow the procedural requirements of the Uniform Mandatory Disposition of Detainers Act, N.D.C.C. ch. 29-33. State v. Johnson, 1999 ND 33, 590 N.W.2d 192, 1999 N.D. LEXIS 35 (N.D. 1999).

North Dakota Supreme Court encourages an analysis of each factor under Barker v. Wingo, 92 S. Ct. 2182, 407 U.S. 514, 33 L. Ed. 2d 101 (1972) when analyzing a speedy trial claim. It regards none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial; these factors have no talismanic qualities, but courts must still engage in a difficult and sensitive balancing process. State v. Moran, 2006 ND 62, 711 N.W.2d 915, 2006 N.D. LEXIS 54 (N.D. 2006).

Change of Venue.

The trial court, in selecting the place of trial on a motion for change of venue, should take into consideration the right of the defendant to a speedy trial. Murphy v. District Court of Eighth Judicial Dist., 14 N.D. 542, 105 N.W. 728, 1905 N.D. LEXIS 87 (N.D. 1905).

Delay Between Commission of Offense and Commencement of Prosecution.

State’s delays of about eight months and twelve or thirteen months between the commission of the offense and commencement of prosecution did not violate defendants’ due process rights where the delays were caused by the need to continue an investigation in the hope others would be arrested, the prosecutions were commenced within the limits of the statute of limitations, and the defendants did not establish any prejudice resulting from the delays. State v. Denny, 350 N.W.2d 25, 1984 N.D. LEXIS 432 (N.D. 1984); State v. Denny, 351 N.W.2d 102, 1984 N.D. LEXIS 328 (N.D. 1984).

Defendant’s due process rights were not violated by a ten-month delay between sale of marijuana to an undercover policeman and defendant’s arrest and prosecution for that offense where delay was attributed to necessity for continued investigation to determine source of defendant’s marijuana and there was no showing of any wrongful delay by state or evidence of any prejudice to defendant. State v. Weisz, 356 N.W.2d 462, 1984 N.D. LEXIS 399 (N.D. 1984).

Delay by Defendant.

Defendant was not deprived of his speedy trial rights under the United States or North Dakota Constitutions because the reason for the delay was precipitated by defendant's act of effectively firing his first counsel; the extent of the delay involved reasonable scheduling considerations for an anticipated five-day jury trial and the designation of a second court-appointed counsel. State v. Owens, 2015 ND 68, 860 N.W.2d 817, 2015 N.D. LEXIS 66 (N.D. 2015).

One who has been committed for trial on a criminal charge, not admitted to bail, and not brought to trial at or before the second term of court subsequent to his commitment will not be released when the delay of trial was upon application of the prisoner. State ex rel. Adams v. Larson, 12 N.D. 474, 97 N.W. 537, 1903 N.D. LEXIS 48 (N.D. 1903).

Defendant’s federal and state constitutional speedy trial rights were not violated because the delay was not more than one year, was not presumptively prejudicial, and the reasons for the delay involved defendant’s decisions about court-appointed counsel and representing himself, his failure to comply with appropriate procedures for making a motion, and his request for more time to make a motion, and the record did not reflect that defendant requested an evidentiary hearing on his motion to dismiss, or took steps to secure a time for the hearing. State v. Hamre, 2019 ND 86, 924 N.W.2d 776, 2019 N.D. LEXIS 85 (N.D. 2019).

Defendant was not denied his right to a speedy trial under because the most significant delays resulted from defendant’s successful motion for a new trial and motion for mistrial, and the State did not attempt to deliberately delay trial; defendant did not assert his right to a speedy trial early in the proceedings and first made the assertion two months before the third trial was set to proceed, and he failed to establish any actual prejudice by the delay. State v. Borland, 2021 ND 52, 956 N.W.2d 412, 2021 N.D. LEXIS 47 (N.D. 2021).

Delay Due to Appeal by State.

Delay attributable to appeal by state from order suppressing evidence was not considered in determining whether or not defendant was denied a speedy trial where, although state was not successful on appeal, the appeal was not frivolous and was not lodged for the purpose of hampering defendant in his defense or for delay. State v. Dilger, 338 N.W.2d 87, 1983 N.D. LEXIS 373 (N.D. 1983).

Delay Due to Defendant and State.

Defendant was not denied his constitutional right to a speedy trial by a postponement and rescheduling of trial date at state’s request where defendant had requested and received a postponement and rescheduling both before and after the state’s request. State v. Goetz, 312 N.W.2d 1, 1981 N.D. LEXIS 421 (N.D. 1981), cert. denied, 455 U.S. 924, 102 S. Ct. 1286, 71 L. Ed. 2d 467, 1982 U.S. LEXIS 728 (U.S. 1982).

Although the defendant’s trial was delayed for about two years, there was no evidence that the State purposefully delayed the trial, and defendant moved to suppress evidence from the searches about 400 days after pre-trial motions were due; defendant did not satisfy the appellate court that his speedy trial rights were violated by the delay in bringing his case to trial. State v. Bergstrom, 2004 ND 48, 676 N.W.2d 83, 676 N.W.2d 98, 2004 N.D. LEXIS 61 (N.D. 2004).

Dismissal of Prosecution.

A court, in the absence of a timely information or indictment, on application, must order a prosecution dismissed, unless good cause to the contrary is shown. Ex parte Morgan, 57 N.D. 763, 224 N.W. 209, 1929 N.D. LEXIS 323 (N.D. 1929).

Failure to Object.

The failure to call a jury for two succeeding terms after an information is filed does not violate the right to a speedy trial in the absence of resistance to the postponement or expression of desire for a speedier trial by the accused. State v. Dinger, 51 N.D. 98, 199 N.W. 196, 1924 N.D. LEXIS 153 (N.D. 1924).

Prejudice Not Shown.

Actual prejudice to defendant from delay was not apparent where he was in jail for separate convictions much of the time before his trial; almost seven months of his incarceration was unrelated to the case at bar, and “oppressive pretrial incarceration” did not occur. State v. Murchison, 541 N.W.2d 435, 1995 N.D. LEXIS 233 (N.D. 1995).

Conclusory allegations of an impaired defense from a delayed trial do not prove prejudice. State v. Murchison, 541 N.W.2d 435, 1995 N.D. LEXIS 233 (N.D. 1995).

Defendant was not denied his right to speedy trial where, although eight months passed between the date of defendant’s arrest and the commencement of his trial, considering the appointments of counsel and various intervening motions that were filed, defendant’s actions reasonably attributed to the delay and there was no actual prejudice to him by the delay. State v. Ochoa, 2004 ND 43, 675 N.W.2d 161, 2004 N.D. LEXIS 57 (N.D. 2004).

There was no speedy trial violation under N.D.R.Crim.P. 48(b), N.D. Const. art. I, § 12, or the Sixth Amendment based on a three-year delay between a driving under the influence citation and an arrest since both parties were responsible for some of the delay (defendant failed to appear, and the State negligently failed to serve a warrant), defendant failed to assert the right when first arrested on a warrant, and he failed to show actual prejudice since the only evidence that he would have offered would have been a cross-examination of the arresting officer. State v. Moran, 2006 ND 62, 711 N.W.2d 915, 2006 N.D. LEXIS 54 (N.D. 2006).

Motion to dismiss based on a violation of defendant's constitutional rights to a speedy trial was properly denied where the trial was scheduled 98 days after the speedy trial demand, and there was no factual link between the pretrial incarceration and prejudice. State v. Hall, 2017 ND 124, 894 N.W.2d 836, 2017 N.D. LEXIS 120 (N.D. 2017).

Petitioner was not denied a constitutional right to a speedy trial where the delay, if at all, was less than one year and thus was not presumptively prejudicial, and petitioner failed to show prejudice. Koenig v. State, 2018 ND 59, 907 N.W.2d 344, 2018 N.D. LEXIS 42 (N.D. 2018).

Pretrial detention.

Because defendant had a right to a speedy trial and was presumed innocent, his continued pretrial detention at the State Hospital had to be determined under the statutory procedures and safeguards of N.D.C.C. ch. 25-03.1. State v. Holbach, 2014 ND 14, -- N.W.2d --, 2014 N.D. LEXIS 16 (Jan. 28, 2014).

Public Trial.

The enforcement of an order excluding all persons from the courtroom except “all jurors, officers of the court, including attorneys, litigants, and their attorneys, witnesses for both parties and any other person or persons whom the several parties to the action may request to remain” does not deprive the defendant of a public trial. State v. Nyhus, 19 N.D. 326, 124 N.W. 71, 1909 N.D. LEXIS 103 (N.D. 1909).

There is an absolute requirement that before the trial court may exclude the public, it must articulate its reasons on the record and those reasons must be expressed in findings that enable a reviewing court to exercise its function. State v. Klem, 438 N.W.2d 798, 1989 N.D. LEXIS 62 (N.D. 1989).

The trial court erred in closing a gross sexual imposition trial during the child victim’s testimony without conducting a hearing and making findings. State v. Klem, 438 N.W.2d 798, 1989 N.D. LEXIS 62 (N.D. 1989).

Trial court had substantial reason to partially and temporarily close defendant’s trial during testimony of witness for state, where state did not expect witness to refuse to testify, and witness’s intimidation and hesitation to testify were amply demonstrated to the court. State v. Garcia, 1997 ND 60, 561 N.W.2d 599, 1997 N.D. LEXIS 45 (N.D.), cert. denied, 522 U.S. 874, 118 S. Ct. 193, 139 L. Ed. 2d 131, 1997 U.S. LEXIS 5532 (U.S. 1997).

Waiver.

A plea of guilty constitutes a waiver of the right to a speedy trial. State v. Wunderlich, 338 N.W.2d 658, 1983 N.D. LEXIS 351 (N.D. 1983).

—Delay by State.

In a driving under the influence case, defendant's constitutional right to a speedy trial was violated where the case remained idle for 20 years. Defendant was entitled to a presumption of prejudice, and the city did not rebut that presumption. City of Grand Forks v. Gale, 2016 ND 58, 876 N.W.2d 701, 2016 N.D. LEXIS 56 (N.D. 2016).

II. Attendance of Witnesses and Right of Confrontation.

In General.

Reasonably administered, the denial of a continuance upon stipulation by the state to what an absent witness, if present, would testify, does not work a denial of the defendant’s right to process to compel attendance of the witness in behalf of the accused. State v. Uhler, 32 N.D. 483, 156 N.W. 220, 1916 N.D. LEXIS 131 (N.D. 1916).

Defendant, who was convicted of theft, was not deprived of his right to compulsory process when standby counsel and the trial court did not assist defendant in securing the testimony of several governmental agents, including FBI agents and agents from the Department of Homeland Security; the record was devoid of any showing by defendant that these witnesses would have provided favorable and material testimony to aid defendant’s defense to the theft charge. State v. Curtis, 2008 ND 108, 750 N.W.2d 438, 2008 N.D. LEXIS 112 (N.D. 2008).

Immunity for Defense Witnesses.

Neither the Sixth Amendment to the federal Constitution nor this section of the state constitution requires the state grant immunity to defense witnesses in a criminal prosecution. State v. Dachtler, 318 N.W.2d 769, 1982 N.D. LEXIS 253 (N.D. 1982).

Prosecutor’s refusal to grant immunity to defense witness or to drop the charges against her did not violate defendant’s right to a fair trial or to call witnesses on his own behalf where the prosecutor made no attempt to interfere with or discourage the witness from testifying; neither the Sixth Amendment of the federal Constitution nor this section requires the state to grant immunity to defense witnesses. State v. Perbix, 349 N.W.2d 403, 1984 N.D. LEXIS 317 (N.D. 1984).

Right of Confrontation.

Which party bears the expense associated with the right of confrontation requires a balancing of the interests involved and is best determined by the legislature. Howes v. North Dakota Workers Compensation Bureau, 429 N.W.2d 730, 1988 N.D. LEXIS 259 (N.D. 1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1126, 103 L. Ed. 2d 189, 1989 U.S. LEXIS 904 (U.S. 1989).

A fair hearing includes the opportunity to confront and cross-examine adverse witnesses. Howes v. North Dakota Workers Compensation Bureau, 429 N.W.2d 730, 1988 N.D. LEXIS 259 (N.D. 1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1126, 103 L. Ed. 2d 189, 1989 U.S. LEXIS 904 (U.S. 1989).

There was no reversible error in limiting defendant’s cross-examination concerning the financial condition of witness who was owner of tavern that was subject of burglary; defendant introduced no evidence to show participation by witness in the crime due to financial stress and, under the circumstances of this case, the questions regarding the financial condition of witness and her business could only act to unfairly prejudice or impeach her testimony. State v. Haugen, 458 N.W.2d 288, 1990 N.D. LEXIS 148 (N.D. 1990).

Where defense counsel was given ample opportunity to expose weaknesses in a witness’ testimony, and where objections to questions asked by the prosecution were sustained, the defendant was not denied his right to confrontation. State v. Velasquez, 1999 ND 217, 602 N.W.2d 693, 1999 N.D. LEXIS 229 (N.D. 1999).

Defendant’s right to confront a witness against him was satisfied where, despite not having the witness’ address to conduct a background investigation into her character and reputation for truthfulness, defendant had ample opportunity to cross-examine the witness at both deposition and trial regarding her past criminal convictions, her continued drug use, her time spent as a fugitive and, to the extent the witness’ character and reputation could be impeached, the defendant did so. State v. Keyes, 2000 ND 83, 609 N.W.2d 428, 2000 N.D. LEXIS 85 (N.D. 2000).

Defendants’ right to confrontation was not violated by the admission of a state crime laboratory report on the ground that the report was a testimonial statement under the holding of Crawford—that the admission of out-of-court testimonial statements in criminal cases is precluded, unless, when the witness is unavailable to testify, the accused has had a prior opportunity to cross-examine the declarant—because under N.D.C.C. § 19-03.1-37(5), defendants could have subpoenaed the laboratory report’s author but failed to do so and there was no evidence that the forensic scientist was unavailable. State v. Campbell, 2006 ND 168, 719 N.W.2d 374, 2006 N.D. LEXIS 171 (N.D. 2006), cert. denied, 549 U.S. 1180, 127 S. Ct. 1150, 166 L. Ed. 2d 993, 2007 U.S. LEXIS 1177 (U.S. 2007).

Limits on defendant’s cross-examination of a victim regarding the victim’s interest in restitution did not violate defendant’s confrontation right because, while the interest was relevant, (1) the examination could cause jury confusion, and (2) defendant was sufficiently allowed to cross-examine and impeach the victim. State v. McAllister, 2020 ND 48, 939 N.W.2d 502, 2020 N.D. LEXIS 45 (N.D. 2020).

III. Right to Counsel.

In General.

The right to counsel under North Dakota’s constitution is fundamental because it enables an accused to procure a fair trial. This special regard for the intrinsic value of this section has been exercised independently of any compulsion under federal law or the federal constitution. State v. Orr, 375 N.W.2d 171, 1985 N.D. LEXIS 409 (N.D. 1985).

The explanatory note to Rule 44, NDRCrP, which states that counsel would be appointed only when required under the holding of the United States Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), does not indicate any intention that in North Dakota the right to counsel guaranteed by this section is to be limited by or to holdings of the United States Supreme Court. State v. Orr, 375 N.W.2d 171, 1985 N.D. LEXIS 409 (N.D. 1985).

An inmate could not prove his right to counsel was violated when he failed to show improper governmental conduct or prejudice when statements relating to the case were taken from a private investigator’s office during a valid search. Ellis v. State, 2003 ND 72, 660 N.W.2d 603, 2003 N.D. LEXIS 82 (N.D. 2003).

Under the “totality of the circumstances” test, defendant was not denied the reasonable opportunity to consult with counsel prior to a chemical test in a driving under the influence case because an officer attempted to contact defendant’s attorney, and defendant made no further requests for counsel after contact could not be made. State v. Pace, 2006 ND 98, 713 N.W.2d 535, 2006 N.D. LEXIS 100 (N.D. 2006).

Because the inmate’s N.D. R. Crim. P. 11(d) motion, filed five months after the entry of the criminal judgment and four months after a direct appeal was dismissed by stipulation, was not a critical stage of the proceedings affording him the constitutional guarantee to the right to counsel, nor was he entitled to counsel under N.D. R. Crim. P. 44(a) or North Dakota jurisprudence, even if the district court did err in finding N.D.C.C. § 29-32.1-09(2) barred the inmate’s ineffective assistance of counsel claim relating to his Rule 11(d) motion, the appellate court declined to reverse the district court. Jensen v. State, 2019 ND 126, 927 N.W.2d 479, 2019 N.D. LEXIS 143 (N.D. 2019).

Appellate Proceeding.

Defendant’s constitutional right to counsel did not attach in an appellate proceeding as there was no federal or state constitutional right to appeal; thus, defendant’s right to counsel was not violated when the trial court neither informed him of his right to counsel nor appointed defendant counsel on appeal from his probation revocation and resentencing. State v. Causer, 2004 ND 75, 678 N.W.2d 552, 2004 N.D. LEXIS 171 (N.D.), cert. denied, 543 U.S. 906, 125 S. Ct. 139, 160 L. Ed. 2d 182, 2004 U.S. LEXIS 6076 (U.S. 2004).

Appointment of Counsel.

A justice of the peace who acts as a committing magistrate is not authorized to appoint counsel for the accused brought before him on preliminary examination, nor is he authorized to order that the county pay such counsel. Harris v. Rolette County, 16 N.D. 204, 112 N.W. 971, 1907 N.D. LEXIS 44 (N.D. 1907).

This section does not require that counsel shall be furnished by the state if the defendant appears without one, such right to assignment of counsel springing from the statute. MAZAKAHOMNI v. STATE, 75 N.D. 73, 25 N.W.2d 772, 1947 N.D. LEXIS 48 (N.D. 1947).

There is no legal reason to appoint counsel for someone who can afford and obtain his own. State v. DuPaul, 527 N.W.2d 238, 1995 N.D. LEXIS 21 (N.D. 1995).

The selection of appointed counsel is not the prerogative of the defendant. State v. Harmon, 1997 ND 233, 575 N.W.2d 635, 1997 N.D. LEXIS 311 (N.D. 1997).

Defendant was not deprived of the fundamental right to court-appointed counsel because defendant did not show that defendant would have been entitled to court-appointed counsel under N.D.R.Crim.P. 44(a); on the basis of defendant’s submitted documents, defendant’s annual income totaled at least $ 19,200. City of Grand Forks v. Corman, 2009 ND 125, 767 N.W.2d 847, 2009 N.D. LEXIS 138 (N.D. 2009).

Defendant, comprehensively advised by the trial court about defendant’s right to counsel pursuant to U.S. Const. amend. VI and N.D. Const. art. I, § 12, could not withdraw the guilty pleas that defendant gave to three misdemeanors. Defendant knowingly, voluntarily, and intelligently waived defendant’s right to counsel, as the trial court’s comprehensive colloquy in accordance with N.D.R.Crim.P. 11 regarding defendant’s rights and the rights defendant was waiving, as well as defendant’s criminal history that included several convictions, showed that defendant was knowingly, intelligently, and voluntarily pleading guilty, including the waiver under N.D.R.Crim.P. 44 of the right to have counsel appointed for defendant if defendant was found to be indigent. State v. Jones, 2011 ND 234, 817 N.W.2d 313, 2011 N.D. LEXIS 228 (N.D. 2011).

Burden of Proof on Claim of Denial.

Upon a motion to set aside a judgment of conviction upon the ground of denial of counsel the burden of proof is upon the defendant to establish the facts upon which he relies as a basis for relief. State v. Magrum, 76 N.D. 527, 38 N.W.2d 358, 1949 N.D. LEXIS 75 (N.D. 1949).

Contempt Proceedings.

Where the trial court failed to inform a former husband of his right to have counsel present during a contempt hearing for failure to pay child and spousal support arrears, and there was a possibility that the husband could have been imprisoned, his due process rights were violated, despite the fact that the contempt order was remedial rather than punitive. Peters-Riemers v. Riemers, 2004 ND 28, 674 N.W.2d 287, 2004 N.D. LEXIS 41 (N.D. 2004).

Counsel of Choice.

Because defendant did not diligently search for a different attorney before trial, and did not move for a continuance before the day of trial when he realized the search was failing, by neglecting to move for a continuance in a timely manner, defendant waived any claimed constitutional right to “counsel of choice.” State v. Waters, 542 N.W.2d 742, 1996 N.D. LEXIS 30 (N.D. 1996).

Court Must Inform Accused.

One accused in a criminal proceeding has the right to the assistance of counsel and the court must inform an accused of that right. State v. Orr, 375 N.W.2d 171, 1985 N.D. LEXIS 409 (N.D. 1985).

Effectiveness of Counsel.

Postconviction relief was denied because an applicant did not establish that he received ineffective assistance of counsel under the United States and North Dakota Constitutions during a change of plea hearing; trial counsel's failure to seek a recess to provide further explanation to the applicant was not second guessed on appeal. The applicant presented no evidence to establish how trial counsel's representation fell outside the range of reasonable professional conduct. Everett v. State, 2015 ND 149, 864 N.W.2d 450, 2015 N.D. LEXIS 162 (N.D. 2015).

Because appellant failed to prove, or even allege, any prejudice resulting from his trial counsel's conduct, the district court did not err in denying appellant's ineffective assistance of trial counsel claim. Baatz v. State, 2014 ND 151, 849 N.W.2d 225, 2014 N.D. LEXIS 159 (N.D. 2014).

Despite defendant’s contentions that his first conference with his court-appointed counsel was just moments before the case went to trial, that counsel was appointed only two days before that time, and that counsel was not given time to investigate and prepare for his defense, defendant was not denied effective assistance of counsel where he had had court-appointed counsel prior to counsel’s withdrawal and where the trial court had taken judicial notice of the competence of appointed counsel at trial. State v. Rudolph, 193 N.W.2d 237, 1971 N.D. LEXIS 101 (N.D. 1971).

A holding by the U. S. Court of Appeals, 491 F.2d 687, abandons the “farce and mockery” test on the effectiveness of counsel for testing Sixth Amendment claims. State v. Bragg, 221 N.W.2d 793, 1974 N.D. LEXIS 176 (N.D. 1974).

Generally, an ineffective assistance of counsel claim is more effectively presented in a post-conviction-relief proceeding than an appeal because the court in those proceedings is the court before which the trial was held. State v. Ricehill, 415 N.W.2d 481, 1987 N.D. LEXIS 436 (N.D. 1987).

Where the substance of an absent witness’s testimony could be determined only from representations of counsel, unsupported by evidence, the supreme court was unable, on direct appeal of a conviction, to determine whether counsel was ineffective for failing to subpoena the witness in time to assure his appearance at trial. State v. Ricehill, 415 N.W.2d 481, 1987 N.D. LEXIS 436 (N.D. 1987).

There is a two-part test for allegedly ineffective assistance of counsel. First, a defendant must show that counsel’s representation fell below an objective standard of reasonableness. Second, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A defendant must demonstrate both deficient representation by counsel and prejudice caused by the deficient representation. Woehlhoff v. State, 487 N.W.2d 16, 1992 N.D. LEXIS 145 (N.D. 1992).

Our state and federal constitutions guarantee criminal defendants the right to reasonably effective assistance of counsel; consequently, ineffective assistance of counsel is one ground for relief from a criminal conviction under the post-conviction procedure act. Woehlhoff v. State, 487 N.W.2d 16, 1992 N.D. LEXIS 145 (N.D. 1992).

Defendant’s attorney was not incompetent regarding jury instructions, plea bargaining, witnesses, and testing of a pair of pantyhose where his decisions were based on strategic and tactical considerations. Stoppleworth v. State, 501 N.W.2d 325, 1993 N.D. LEXIS 121 (N.D. 1993).

When the record on appeal is not adequate concerning defendant’s claim of ineffective assistance of counsel, and the record does not affirmatively show defendant’s trial counsel was constitutionally ineffective, the defendant may pursue the claim at a post-conviction proceeding where an adequate record can be developed. State v. Falcon, 546 N.W.2d 835, 1996 N.D. LEXIS 114 (N.D. 1996).

Defendants are discouraged from bringing claims of ineffective assistance of counsel directly from the district court, because, unless the record affirmatively shows ineffectiveness of constitutional dimensions, defendant must show some form of proof, and without a record scrutinizing the reasons underlying counsel’s conduct, adjudging that conduct subpart is virtually impossible. State v. Touche, 549 N.W.2d 193, 1996 N.D. LEXIS 152 (N.D. 1996).

In direct appeal from trial court in which defendant contended ineffective assistance of counsel, defendant did not affirmatively show ineffectiveness of constitutional dimensions, where counsel did not request instruction on lesser included offense, failed to object to use of the word “rape” by prosecution while questioning victim, and did not file a motion about prior sexual experience of victim. State v. McDonell, 550 N.W.2d 62, 1996 N.D. LEXIS 155 (N.D. 1996).

Where defendant first raised the issue of ineffective assistance of counsel on direct appeal of his conviction and trial court summarily affirmed the conviction without expressly denying the ineffective assistance of counsel claim, the denial was without prejudice and defendant could raise the issue in post-conviction proceedings affording the possibility of an evidentiary hearing on the issue. Moreover, because there was a reasonable inference of ineffective representation, defendant was entitled to a hearing. DeCoteau v. State, 1998 ND 199, 586 N.W.2d 156, 1998 N.D. LEXIS 214 (N.D. 1998).

Although the record was inadequate for defendant to establish that his trial counsel’s conduct fell below an objective standard of reasonableness or that it was reasonably probable the result of his trial would have been different but for his counsel’s alleged errors, defendant could still pursue this claim in a post-conviction proceeding in which an adequate record supporting his contentions could be developed. State v. Strutz, 2000 ND 22, 606 N.W.2d 886, 2000 N.D. LEXIS 19 (N.D. 2000).

Defense counsel’s failure to confer with his client regarding submitting to the jury lesser included offenses to aggravated assault did not constitute ineffective assistance of counsel, but rather amounted to a reasoned decision based on trial strategy. Mathre v. State, 2000 ND 201, 619 N.W.2d 627, 2000 N.D. LEXIS 253 (N.D. 2000).

Trial court did not err in dismissing defendant’s claim of ineffective assistance of counsel regarding his guilty plea, where defendant failed to provide any evidentiary support for his allegations, evidence contradicting his allegations was presented at the post-conviction hearing and defendant could have received a substantially greater sentence at trial had he not plead guilty. Damron v. State, 2003 ND 102, 663 N.W.2d 650, 2003 N.D. LEXIS 109 (N.D. 2003).

When inmate’s attorney testified that the inmate had indicated his desire not to appeal three times, the appellate court upheld the trial court’s determination that the testimony was more credible than that of the inmate and his witness, and denied the inmate’s petition for post conviction relief. Kamara v. State, 2003 ND 179, 671 N.W.2d 811, 2003 N.D. LEXIS 194 (N.D. 2003).

In a case related to stalking and theft, petitioner failed to show counsel was ineffective regarding suppression of the evidence obtained during a search, advice regarding the consequences of his guilty plea, or advice regarding sentencing; therefore, his guilty plea was not involuntary and his petition for post-conviction relief was properly denied. Ernst v. State, 2004 ND 152, 683 N.W.2d 891, 2004 N.D. LEXIS 278 (N.D. 2004).

Counsel’s representation fell below an objective standard of reasonableness when, after calling the defense witnesses to the stand and discovering that they had not complied with a defense-requested sequestration order, he made no offer of proof as to the substance of their testimony, despite that testimony being critical to corroborating defendant’s only proffered defense. Heckelsmiller v. State, 2004 ND 191, 687 N.W.2d 454, 2004 N.D. LEXIS 313 (N.D. 2004).

Defendant, to establish an ineffective assistance of counsel claim, had to show the representation fell below an objective standard of reasonableness and that but for counsel’s unprofessional errors, the result of the proceeding would have differed; the record did not establish whether not stipulating to the conviction before trial and not objecting to character witnesses were part of the legitimate trial strategy or ineffective assistance of counsel. The appellate court could not determine whether the attorney’s conduct fell below the accepted standard of reasonableness and the issue was more properly pursued in a post-conviction relief proceeding. State v. Hayek, 2004 ND 211, 689 N.W.2d 422, 2004 N.D. LEXIS 359 (N.D. 2004).

Counsel was not ineffective in his investigation of defendant’s case for failure to interview two important witnesses where there was substantial other evidence implicating defendant in the crimes and defendant admitted to committing the crimes. Greywind v. State, 2004 ND 213, 689 N.W.2d 390, 2004 N.D. LEXIS 356 (N.D. 2004).

Trial court did not err in finding that trial counsel’s failure to move to suppress evidence of drugs and drug paraphernalia found during a search of defendant’s motel room after he was arrested pursuant to a warrant was not ineffective assistance of counsel because there were outstanding bench warrants for defendant’s arrest for failure to appear at the time of the arrest and search and it was these warrants that were executed not the arrest warrant issued two days following defendant’s arrest when defendant was separately charged with the crime of failure to appear. State v. Steen, 2004 ND 228, 690 N.W.2d 239, 2004 N.D. LEXIS 373 (N.D. 2004), cert. denied, 546 U.S. 853, 126 S. Ct. 117, 163 L. Ed. 2d 126, 2005 U.S. LEXIS 6923 (U.S. 2005).

Defendant was not denied his right to effective assistance of counsel at his preliminary hearing where he requested assistance of counsel at his initial appearance but was not represented by counsel at the preliminary hearing because he had not submitted documents showing indigency, nevertheless, he objected to a continuance and proceeded to represent himself at that hearing. Defendant waived the issue of whether he was denied effective assistance of counsel at the original preliminary hearing because he received a second preliminary hearing at which he was represented by counsel, and he thereafter continued to be represented by counsel at all stages of the prosecution against him. State v. Murchison, 2004 ND 193, 687 N.W.2d 725, 2004 N.D. LEXIS 323 (N.D. 2004).

Defendant’s claim that trial counsel was deficient when he failed to object to defendant appearing at the jury trial wearing prison clothing and by failing to arrange for defendant to wear normal attire failed where the post-conviction court’s ability to assess the prejudicial effect of defendant’s attire was hampered by his failure to provide a transcript of the trial to the post-conviction court. A defendant’s appearance at trial in prison attire does not automatically vitiate a conviction and defendant must have shown not only that counsel’s performance fell below an objective standard of reasonableness, but must have also demonstrated prejudice by establishing a reasonable probability that, but for his counsel’s errors, the result of the proceeding would have been different. State v. Steen, 2004 ND 228, 690 N.W.2d 239, 2004 N.D. LEXIS 373 (N.D. 2004), cert. denied, 546 U.S. 853, 126 S. Ct. 117, 163 L. Ed. 2d 126, 2005 U.S. LEXIS 6923 (U.S. 2005).

Although defendant argued that he received ineffective assistance of counsel by virtue of his trial counsel’s failure to request dismissal of the entire jury panel based upon a venireperson’s statements that she witnessed defendant buy an over-the-counter drug commonly used in the manufacture of methamphetamine, to request a curative instruction, or to object to the questioning, he failed to argue in his brief that the outcome in the trial court would have changed had counsel acted differently; thus, he failed to establish prejudice. State v. Nikle, 2006 ND 25, 708 N.W.2d 867, 2006 N.D. LEXIS 20 (N.D. 2006).

Counsel was not ineffective in failing to object pursuant to N.D.R.Ev. 702 to a state expert witness who testified that in his opinion the victim’s body was dragged to the place where it was found and that the victim was killed at another location, as, had the objection been made, the court would have easily concluded the witness had the expertise and qualifications to testify by way of his experience and training and it was even likely the witness would have been qualified to testify through lay opinion, and that, in any event, under the circumstances and foundation established for the opinions rendered, trial counsel’s failure to object was not deficient and did not fall below an objective standard of reasonableness. Rummer v. State, 2006 ND 216, 722 N.W.2d 528, 2006 N.D. LEXIS 210 (N.D. 2006).

Counsel was not ineffective in failing to adequately investigate various scientific evidence because any failure to bring forward testimony of an independent forensic entomologist and follow-up alibi witnesses would not have avoided evidence that defendant admitted to killing or participating in the victim’s homicide with details accurately depicting the circumstances or corroborating events surrounding the murder. Rummer v. State, 2006 ND 216, 722 N.W.2d 528, 2006 N.D. LEXIS 210 (N.D. 2006).

Counsel was not ineffective for failing to object to the prosecution’s use of gender-based peremptory challenges because counsel testified that he was going to make an objection based on the prosecution’s gender-based strikes, but he realized that he was not in a good position to do so because he had struck men from the jury. The district court decided that trial counsel’s decision about jury selection was a reasonable decision and did not fall below an objective standard of reasonableness. Flanagan v. State, 2006 ND 76, 712 N.W.2d 602, 2006 N.D. LEXIS 82 (N.D. 2006).

In a gross sexual imposition case, counsel was not ineffective for failing to interview and subpoena petitioner’s stepdaughter where, at the post-conviction hearing, the oldest stepdaughter did not testify, petitioner testified that he did not know how she would have testified, and there was other corroborating testimony from witnesses who saw the petitioner inappropriately touching the complainant; the credibility of those witnesses was not in dispute. Assuming counsel’s failure to interview and subpoena the stepdaughter, the petitioner did not satisfy his burden to establish a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different. Flanagan v. State, 2006 ND 76, 712 N.W.2d 602, 2006 N.D. LEXIS 82 (N.D. 2006).

Without the benefit of a fully-developed record, defendant’s claim of ineffective assistance of counsel failed because (1) he could not show how his counsel’s performance was objectively deficient; and (2) there was no evidence on the record to determine whether defense counsel contacted an investigator; thus, defendant could not overcome the strong presumption of the objective reasonableness of his attorney’s performance. Even assuming he showed that his counsel’s performance was objectively deficient, he failed to show how his counsel’s performance prejudiced him or that the outcome would have been different but for the errors of counsel since he did not show that but for counsel’s failure to follow up with the investigator, he would not have pled guilty; although defendant’s claim was meritless, he could raise the issue in a post-conviction proceeding. State v. Bates, 2007 ND 15, 726 N.W.2d 595, 2007 N.D. LEXIS 14 (N.D. 2007).

Defendant could not satisfy the burden of proof for a claim of ineffective assistance of counsel and the trial court did not err in denying his post-conviction application where the district court found defendant’s trial counsel was prepared for trial as evidenced by the numerous pretrial motions and hearings and also found that many of the alleged errors could be attributed to trial tactics. Moreover, defendant failed to establish that his trial counsel’s alleged deficient performance affected the outcome of the case. State v. Austin, 2007 ND 30, 727 N.W.2d 790, 2007 N.D. LEXIS 30 (N.D. 2007).

Defendant’s conviction and sentence under N.D.C.C. § 19-03.1-23(1)(a) was reversed as the trial court should not have required his prior cocaine-related conviction to be admitted at trial because, under N.D.C.C. § 19-03.1-23(1)(a)(1), one prior conviction for possession of a controlled substance with intent to deliver enhances a defendant’s sentence, but it does not enhance the offense from a class A felony to a more serious class and a prior conviction that enhances a sentence, but not the seriousness of the offense, is generally not regarded as an element of the offense; thus, Apprendi did not require the prior conviction be proved “beyond a reasonable doubt to a unanimous jury”. Furthermore, it was ineffective assistance for defense counsel to succumb to the trial court’s misunderstanding of Apprendi and to stipulate to sending the prior conviction to the jury; admission of that evidence constituted prejudicial and reversible error. State v. Tutt, 2007 ND 77, 732 N.W.2d 382, 2007 N.D. LEXIS 79 (N.D. 2007).

Postconviction relief was denied in a case where defendant alleged that he received ineffective assistance of counsel because the decisions were mostly based on a defense strategy, such as the failure to call a handwriting expert and the failure to request a mistrial. Moreover, a motion to change venue would have been futile, and testimony regarding intent would have been irrelevant since that was not an element of the crimes charged. Noorlun v. State, 2007 ND 118, 736 N.W.2d 477, 2007 N.D. LEXIS 118 (N.D. 2007).

Defendant’s second application for postconviction relief was denied because there was no claim for ineffective assistance of counsel on appeal since defendant represented himself; moreover, he failed to meet the requisite showing of ineffectiveness pertaining to his first application for postconviction relief. Defendant did not show that the alleged errors of counsel were prejudicial or that the outcome would have been different without those alleged errors. Steen v. State, 2007 ND 123, 736 N.W.2d 457, 2007 N.D. LEXIS 121 (N.D. 2007).

Despite any delay leading up to the trial, defendant’s continued incarceration was due to defendant’s own actions, rather than the result of any alleged ineffective assistance of counsel; it appeared that defendant was actually arrested for another offense while out on bond, which resulted in defendant’s bond being revoked. State v. Schweitzer, 2007 ND 122, 735 N.W.2d 873, 2007 N.D. LEXIS 126 (N.D. 2007).

Defendant was not entitled to post-conviction relief on his ineffective assistance of counsel claims where defendant did not request an evidentiary hearing or present any evidence that his attorney’s representation fell below an objective standard of reasonableness or that the deficient performance prejudiced him in any way, and defendant did not provide any evidence supporting his claim that his attorney failed to call witnesses, such that he did not establish that his attorney’s performance was deficient or prejudiced him. Everett v. State, 2008 ND 199, 757 N.W.2d 530, 2008 N.D. LEXIS 222 (N.D. 2008).

Defendant’s counsel was not ineffective where defendant failed to establish that his trial attorney’s trial preparation fell below the objective standard of reasonableness or that he was prejudiced by the alleged deficient performance and trial counsel’s cross-examination of a witness did not fall below an objective standard of reasonableness; the trial attorney could not be faulted for making a strategic decision to keep an alleged weapon out of evidence and away from the jury’s focus and counsel could decide to forego an objection because any damaging effect from the testimony was minimal. Clark v. State, 2008 ND 234, 758 N.W.2d 900, 2008 N.D. LEXIS 215 (N.D. 2008).

Post-conviction relief was properly denied in a case alleging ineffectiveness of counsel because appellant applicant did not present any affidavits or supporting materials after the State requested summary disposition; moreover, he did not inform the district court that he had witnesses to present. If the applicant thought that the district court denied him the opportunity to present testimony, an offer of proof should have been made under N.D.R.Ev. 103(a)(Ude v. State, 2009 ND 71, 764 N.W.2d 419, 2009 N.D. LEXIS 75 (N.D. 2009).

Defendant failed to demonstrate he was prejudiced by the allegedly sleeping juror and, therefore, failed to meet his burden of demonstrating that but for his trial counsel’s failure to seek a remedy for the alleged juror misconduct, the result of his criminal trial would have been different; the evidence revealed defendant’s trial counsel’s decision not to offer the letter to impeach the victim’s testimony or to bolster defendant’s testimony was a matter of trial strategy and did not fall below the objective standard of reasonableness. State v. Myers, 2009 ND 141, 770 N.W.2d 713, 2009 N.D. LEXIS 147 (N.D. 2009).

Counsel was not ineffective for failing to present the testimony of petitioner’s alleged co-participant because, even if petitioner’s alleged co-participant testified in the manner suggested by an inmate’s statement, the jury would have likely still found petitioner guilty of murder because petitioner admitted to gagging the victim, leaving him bound in the hogtie position, and striking him in the head with the rock. Tweed v. State, 2010 ND 38, 779 N.W.2d 667, 2010 N.D. LEXIS 42 (N.D. 2010).

Even assuming arguendo that Padilla v. Kentucky applied, defendant’s ineffective assistance of counsel claims failed as: (1) defendant was not represented by an attorney when defendant accepted the plea agreement in his first criminal case and (2) defendant failed to prove he was prejudiced by his attorney’s alleged failure to advise him of the deportation consequences of a second conviction because the record unequivocally showed defendant knew about deportation considerations after his first criminal case. State v. Garge, 2012 ND 138, 818 N.W.2d 718, 2012 N.D. LEXIS 136 (N.D. 2012).

In a post-conviction relief case, an appellate court was unable to review findings of fact under the clearly erroneous standard in N.D.R.Civ.P. 52(a) because the trial court did not mention the State’s alleged failure to comply with the requirements of N.D.C.C. § 12.1-32-09, and it failed to address the effectiveness of counsel relating to such. Kruckenberg v. State, 2012 ND 162, 820 N.W.2d 314, 2012 N.D. LEXIS 166 (N.D. 2012).

District court did not err in denying petitioner’s motion for post-conviction relief alleging ineffective assistance of counsel because although counsel’s representation fell below an objective standard of reasonableness when he inadequately advised petitioner of the immigration consequences of his guilty plea, petitioner failed to show that he would not have entered a guilty plea and would have insisted on going to trial if counsel had properly advised him as that course of action was not rational in light of his particular circumstances. Bahtiraj v. State, 2013 ND 240, 840 N.W.2d 605, 2013 N.D. LEXIS 241 (N.D. 2013).

Petitioner’s trial counsel was not ineffective when he failed to file a motion to suppress any and all evidence from the search of petitioner’s home because counsel specifically testified he believed there was no basis for a motion to suppress, that the police reports indicated that petitioner’s wife gave consent to search, and that neither petitioner’s wife nor petitioner ever expressed the consent was involuntary, and even if a suppression motion had been filed, the detective was merely conveying the factual reality of the situation, that if the wife did not act in a way to protect her child, social services would be notified. Kinsella v. State, 2013 ND 238, 840 N.W.2d 625, 2013 N.D. LEXIS 249 (N.D. 2013).

Petitioner’s generic claim that counsel was ineffective in failing to suppress any and all statements did not meet petitioner’s burden of showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment, and further, petitioner was unable to demonstrate how the alleged deficient performance of his trial counsel, in failing to raise Miranda, prejudiced his defense as to deprive him of a fair trial. Kinsella v. State, 2013 ND 238, 840 N.W.2d 625, 2013 N.D. LEXIS 249 (N.D. 2013).

Petitioner’s trial counsel was not ineffective by failing to enter an allegedly exculpatory lab report into evidence because petitioner was charged with knowingly having sexual contact with another person, and contact did not require the presence of semen in a vaginal swab, so the jury still could have convicted him of sexual assault even if no semen was present in the vaginal and rectal swabs of his stepdaughter, and petitioner’s other claims second guessed the trial strategy through the distorting light of hindsight. Kinsella v. State, 2013 ND 238, 840 N.W.2d 625, 2013 N.D. LEXIS 249 (N.D. 2013).

Petitioner’s claim that the district court erred in holding a conference in his absence was barred because he failed to raise the issue on direct appeal, and the conference did not fall under one of the phases requiring him to be present; trial counsel’s performance concerning the hearing was not deficient given his testimony that there was inadequate time to contact petitioner and the fact that he communicated the facts to petitioner and was forced to act quickly because trial was scheduled for the next day. Kinsella v. State, 2013 ND 238, 840 N.W.2d 625, 2013 N.D. LEXIS 249 (N.D. 2013).

Petitioner’s trial counsel was not ineffective when he failed to claim error for the trial court’s procedure in responding to two specific questions and/or failed to exercise petitioner’s statutory right to have the jury brought into the courtroom and have the information requested by the jury given to it because the jury did not request testimony or to be brought into court, the trial court’s communication with the jury was made in open court in the presence of petitioner and his counsel, and counsel testified that he found the trial court’s response acceptable to the defense. Kinsella v. State, 2013 ND 238, 840 N.W.2d 625, 2013 N.D. LEXIS 249 (N.D. 2013).

Petitioner’s trial counsel was not ineffective for failing to advise petitioner of his right to testify or not to testify because the decision to take the stand was part of the defense’s strategy. Kinsella v. State, 2013 ND 238, 840 N.W.2d 625, 2013 N.D. LEXIS 249 (N.D. 2013).

Petitioner’s trial counsel was not ineffective in failing to test bed sheets for the DNA of petitioner’s wife’s because counsel did elicit testimony from petitioner that his wife’s DNA could possibly be present on the bed sheets of his stepdaughter that he was accused of sexually assaulting, and regardless, it was at best speculative that the outcome of the trial would have been different if an independent DNA analysis was conducted. Kinsella v. State, 2013 ND 238, 840 N.W.2d 625, 2013 N.D. LEXIS 249 (N.D. 2013).

District court properly denied petitioner's application for postconviction relief because he failed to establish he was prejudiced by the allegedly deficient performance of his counsel; petitioner presented no evidence that would support a finding of prejudice on his claim that he was not properly advised on how the plea agreement could affect his desire to be sentenced to the Teen Challenge program because the court indicated he would not be sentenced to the program if sentenced after trial. Booth v. State, 2017 ND 97, 893 N.W.2d 186, 2017 N.D. LEXIS 100 (N.D. 2017).

District court properly denied petitioner's application for postconviction relief because he failed to establish he was prejudiced by the allegedly deficient performance of his counsel, and the district court applied the correct standard; petitioner offered nothing but subjective speculation and self-serving statements that he would not have pleaded guilty and would have insisted on going to trial, and he voluntarily pleaded guilty. Booth v. State, 2017 ND 97, 893 N.W.2d 186, 2017 N.D. LEXIS 100 (N.D. 2017).

District court properly denied appellant's application for post-conviction relief on the basis of the first prong of the Strickland test. Because appellant failed to meet his burden of proving his counsel's representation fell below an objective standard of reasonableness, it was unnecessary to analyze the second prong of the Strickland test. Saari v. State, 2017 ND 94, 893 N.W.2d 764, 2017 N.D. LEXIS 104 (N.D. 2017).

Petitioner failed to show his trial counsel’s representation fell below an objective standard of reasonableness and failed to meet his burden to show there was a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Although petitioner argued his counsel was ineffective as a matter of law because counsel failed to move for acquittal, petitioner failed to provide any evidence showing the State did not present a prima facie case. Rourke v. State, 2018 ND 137, 912 N.W.2d 311, 2018 N.D. LEXIS 136 (N.D. 2018).

It was error to grant summary disposition dismissing defendant’s application for post-conviction relief because there was a genuine issue of material fact as to whether defendant received effective assistance of counsel when pleading guilty, as nothing in the record indicated defendant agreed with counsel to lifetime probation provided in defendant’s plea bargain. Davies v. State, 2018 ND 211, 917 N.W.2d 8, 2018 N.D. LEXIS 220 (N.D. 2018).

Defendant showed no ineffective assistance of counsel because (1) the record did not show one attorney told defendant to write and send a letter to the State, (2) another attorney discussed accomplice liability and Alford pleas with defendant before a change of plea hearing, met with defendant many times, and did not coerce defendant to accept a plea agreement, (3) the record showed counsel advised defendant of the 85 percent rule, and (4) defendant showed no greater probability that, but for counsel’s errors, defendant would not have pled guilty. Morris v. State, 2019 ND 166, 930 N.W.2d 195, 2019 N.D. LEXIS 179 (N.D. 2019).

—Raising Issue of Effectiveness.

In most instances, the issue of ineffective assistance of counsel should be raised before the trial court and a hearing held. Woehlhoff v. State, 487 N.W.2d 16, 1992 N.D. LEXIS 145 (N.D. 1992).

Incapacity of Counsel.

The defendant in a criminal cause is ordinarily bound by any course of action that is followed with respect to his defense by counsel employed by him, but where, during the trial, his counsel is so incapacitated as not to comprehend what is taking place, the defendant’s rights are not safeguarded and he is entitled to a new trial. State v. Keller, 57 N.D. 645, 223 N.W. 698, 1929 N.D. LEXIS 310 (N.D. 1929).

Indigent Defendants.

Court did not err in denying defendant’s motion for appointed counsel where defendant was not indigent because he earned $ 31,000 per year, he had transferred his property to his children, and he retained control over the property. State v. Hilgers, 2004 ND 160, 685 N.W.2d 109, 2004 N.D. LEXIS 285 (N.D. 2004), cert. denied, 544 U.S. 906, 125 S. Ct. 1613, 161 L. Ed. 2d 280, 2005 U.S. LEXIS 2271 (U.S. 2005).

Parole Revocation Hearing.

Right to counsel clause refers to criminal prosecutions and does not apply to probation or parole revocation hearings, except where sentencing has been deferred, since such hearings are not encompassed by term “criminal prosecution”; thus prisoner was not entitled to habeas corpus on theory that constitutional rights under this section were violated by his lack of counsel at revocation hearing. John v. State, 160 N.W.2d 37, 1968 N.D. LEXIS 104 (N.D. 1968).

Pro Se Representation.

A defendant’s continuing requests for substitute counsel and refusal of the services of appointed counsel may be interpreted as a knowing and voluntary request to proceed pro se. State v. Harmon, 1997 ND 233, 575 N.W.2d 635, 1997 N.D. LEXIS 311 (N.D. 1997).

Standby Counsel.

A defendant who waives his right to counsel does not have a constitutional right to the presence of standby counsel to aid him in his defense. City of Fargo v. Rockwell, 1999 ND 125, 597 N.W.2d 406, 1999 N.D. LEXIS 145 (N.D. 1999).

Statements of Counsel.

It is a violation of the rights of the accused for the court to instruct the jury to pay no attention to any remarks or statements made by counsel. State v. Gutterman, 20 N.D. 432, 128 N.W. 307, 1910 N.D. LEXIS 116 (N.D. 1910).

Uncounseled Conviction.

Absent a valid waiver of the right to counsel, a resulting conviction cannot, under this section, be used to enhance a term of imprisonment for a subsequent offense. State v. Orr, 375 N.W.2d 171, 1985 N.D. LEXIS 409 (N.D. 1985).

To allow an accused’s punishment to be enhanced to include imprisonment solely because of a prior uncounseled conviction violates the dictate of this section that one accused of a crime is entitled to counsel. State v. Orr, 375 N.W.2d 171, 1985 N.D. LEXIS 409 (N.D. 1985).

A prior uncounseled conviction, without waiver of counsel, is an impermissible factor which may not be substantially relied on by a trial judge in sentencing a defendant. State v. Cummings, 386 N.W.2d 468, 1986 N.D. LEXIS 311 (N.D. 1986).

District court properly considered defendant’s prior criminal convictions as part of her criminal history at sentencing because they were not relied upon to enhance her term of incarceration, defendant did not show that the prior convictions were, in fact, uncounseled or that the district court abused its discretion in applying the sentencing factors in an illegal manner, her sentence was below the statutory maximum and within statutory limits, and her prior convictions were properly considered by the district court as her criminal history and as one of many sentencing factors. State v. Evanson, 2021 ND 4, 953 N.W.2d 607, 2021 N.D. LEXIS 4 (N.D. 2021).

Waiver.

Where the accused appears in the district court, states that he knows of his right to be represented by counsel, that he does not desire to be so represented, that he is ready to proceed and desires to plead guilty to the offense charged against him and judgment is passed thereon, he has not been denied due process of law. State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 1947 N.D. LEXIS 72 (N.D. 1947).

A waiver of counsel by a defendant in a criminal case is not effective unless it is freely and understandingly made. State v. Magrum, 76 N.D. 527, 38 N.W.2d 358, 1949 N.D. LEXIS 75 (N.D. 1949).

A waiver of counsel based on conditions indicating fraud, duress or coercion will be sufficient to set aside a judgment of conviction obtained thereon. State v. Whiteman, 67 N.W.2d 599, 1954 N.D. LEXIS 118 (N.D. 1954).

Where an accused personally enters a plea of guilty to a crime whereof he stands charged, and does so understandingly, freely and voluntarily, without asking the assistance of counsel, a waiver of the right to be represented by counsel may be fairly inferred. Danielson v. Riedman, 177 F. Supp. 515, 1959 U.S. Dist. LEXIS 2677 (D.N.D. 1959).

Where the court before arraignment advises the accused that it is his right to have a lawyer during all of the proceedings and the accused repeatedly tells the court that he does not want a lawyer, the court has fulfilled his duty with respect to advising the accused of his right to counsel under the provisions of this section. State v. O'Neill, 117 N.W.2d 857, 1962 N.D. LEXIS 99 (N.D. 1962), cert. denied, 373 U.S. 939, 83 S. Ct. 1544, 10 L. Ed. 2d 694, 1963 U.S. LEXIS 1486 (U.S. 1963), overruled in part, Johnson v. State, 2006 ND 122, 714 N.W.2d 832, 2006 N.D. LEXIS 124 (N.D. 2006).

Where trial court, before arraignment, advised accused that crime with which he was charged was punishable by imprisonment in state penitentiary; that he was entitled to jury trial; that he was entitled at all stages of proceedings to advice of lawyer whom court would provide if defendant was without funds; and, defendant informed court that he did not desire lawyer and waived jury trial, he intelligently and understandingly waived his rights under this section and writ of habeas corpus was quashed. In re Stone, 171 N.W.2d 119, 1969 N.D. LEXIS 88 (N.D. 1969), cert. denied, 397 U.S. 912, 90 S. Ct. 912, 25 L. Ed. 2d 93, 1970 U.S. LEXIS 3002 (U.S. 1970).

Defendant who appeared in court without counsel and requested that court appoint counsel did not voluntarily and intelligently waive right to counsel by proceeding without counsel at request of trial judge who refused to make appointment. State v. Heasley, 180 N.W.2d 242, 1970 N.D. LEXIS 140 (N.D. 1970).

An accused has the right to counsel absent a knowing and intelligent waiver of that right. City of Fargo v. Christiansen, 430 N.W.2d 327, 1988 N.D. LEXIS 204 (N.D. 1988).

A defendant’s continued requests for substitute counsel after having had his request for substitute counsel denied must be considered the constitutional equivalent of a “voluntary” waiver of his right to counsel. State v. Harmon, 1997 ND 233, 575 N.W.2d 635, 1997 N.D. LEXIS 311 (N.D. 1997).

It is discretionary for a trial court to allow an accused to revoke a waiver of the right to counsel during trial. State v. Harmon, 1997 ND 233, 575 N.W.2d 635, 1997 N.D. LEXIS 311 (N.D. 1997) (order on rehearing).

Defendant did not make a knowing choice to represent herself where defendant was not aware disciplinary complaint she filed would cause existing counsel to move to withdraw and defendant expressly stated she wished to proceed at trial with existing counsel. State v. Wicks, 1998 ND 76, 576 N.W.2d 518, 1998 N.D. LEXIS 79 (N.D. 1998).

Defendant did not knowingly and intelligently waive right to counsel where defendant believed he had no choice but to proceed without counsel at trial. State v. Poitra, 1998 ND 88, 578 N.W.2d 121, 1998 N.D. LEXIS 91 (N.D. 1998).

Where the trial judge advised DWI defendant who sought to represent himself that he would be responsible for making his own statements, cross-examining the City’s witnesses, calling witnesses in his own defense, and that he would be expected to conform to the rules and procedures of court, the defendant was advised of the dangers and disadvantages of self-representation and thus voluntarily, knowingly, and intelligently waived his right to counsel. City of Fargo v. Rockwell, 1999 ND 125, 597 N.W.2d 406, 1999 N.D. LEXIS 145 (N.D. 1999).

Conduct of a defendant charged with a second violation of a domestic violence protection order who made numerous requests for postponement of trial while he sought counsel and then appeared at trial without counsel constituted the functional equivalent of a voluntary waiver of his right to counsel. State v. Dvorak, 2000 ND 6, 604 N.W.2d 445, 2000 N.D. LEXIS 7 (N.D. 2000).

The defendant’s written request that the court either move his trial date forward to accommodate his attorney’s absence, appoint another attorney, or allow him to represent himself was not an unequivocal waiver of his right to counsel and the trial court did not commit error in denying his right to self-representation as any ambiguity had to be resolved against waiver. State v. Ochoa, 2004 ND 43, 675 N.W.2d 161, 2004 N.D. LEXIS 57 (N.D. 2004).

The defendant’s indication that “I will be representing myself” as part of a pro se discovery motion did not constitute waiver of his right to counsel; the statement was equivocal, and the defendant was represented by counsel when the motion was filed. The court did not commit error in denying his right to self-representation as any ambiguity had to be resolved against waiver. State v. Ochoa, 2004 ND 43, 675 N.W.2d 161, 2004 N.D. LEXIS 57 (N.D. 2004).

The defendant’s written request that the court either move his trial date forward to accommodate his attorney’s absence, appoint another attorney, or allow him to represent himself was actually a request for hybrid representation, or the ability to participate as co-counsel with his attorney. State v. Ochoa, 2004 ND 43, 675 N.W.2d 161, 2004 N.D. LEXIS 57 (N.D. 2004).

Defendant’s constitutional right to represent himself was not violated because the trial court was not required to inquire into defendant’s wishes and did not abuse its discretion by denying defendant’s request to represent himself because defendant’s request was not unequivocal. Defendant disagreed with how his attorney was questioning certain witnesses and his attorney’s trial strategy; defendant’s request was an impulsive, emotional response to his frustration with his attorney rather than a clear and unequivocal invocation of the right to self-representation. State v. Torkelsen, 2008 ND 141, 752 N.W.2d 640, 2008 N.D. LEXIS 148 (N.D. 2008).

District court properly determined that defendant was competent to stand trial and to conduct the trial himself, and defendant was not choosing between incompetent counsel and self-representation, such that his waiver of his right to counsel was voluntary; defendant waived his right to counsel knowingly and intelligently and he had no right to court-appointed standby counsel. State v. Dahl, 2009 ND 204, 776 N.W.2d 37, 2009 N.D. LEXIS 211 (N.D. 2009).

Record did not establish that defendant had knowingly and intelligently waived his right to counsel where nothing in the record suggested that the disagreements between defendant and his appointed attorney amounted to irreconcilable conflicts or conflicts of interest, there was no evidence that defendant's desire to hire private counsel was intended primarily to delay the trial, and the court had not informed him of the dangers and disadvantages of proceeding without the skill and experience of counsel before allowing his appointed to counsel to withdraw. State v. Baker, 2016 ND 133, 881 N.W.2d 645, 2016 N.D. LEXIS 118 (N.D. 2016).

Defendant’s waiver of his right to counsel was voluntarily, knowingly and intelligently provided because he was informed that he would be held to the same standards as an attorney. State v. James, 2020 ND 136, 945 N.W.2d 293, 2020 N.D. LEXIS 146 (N.D. 2020).

What Amounts to Denial.

The pronouncement of judgment of conviction upon a plea of guilty too the crime of murder in the first degree, against a defendant who did not have assistance of counsel, who was only nineteen years of age, who had only an eighth grade education, who was not permitted to see or have the advice of his relatives, and against whom the proceedings from preliminary hearing to arraignment and plea were rushed to completion in an hour’s time, constitutes a denial of due process. State v. Magrum, 76 N.D. 527, 38 N.W.2d 358, 1949 N.D. LEXIS 75 (N.D. 1949).

Trial court’s allowing counsel to withdraw on day of trial and forcing defendant to proceed pro se, even though defendant expressly stated she wished to proceed with existing counsel, effectively denied defendant the assistance of counsel. State v. Wicks, 1998 ND 76, 576 N.W.2d 518, 1998 N.D. LEXIS 79 (N.D. 1998).

When Right Accrues.

A person is constitutionally entitled to counsel upon questioning by police only if the investigation has focused on him as a suspect, and he has been taken into custody or deprived of his freedom of action in any significant way. State v. Lueder, 242 N.W.2d 142, 1976 N.D. LEXIS 221 (N.D. 1976).

IV. Presence of Defendant.

Appeal from Municipal Court.

N.D.R.Crim.P. 43 applies to appeals from municipal courts, as well as to criminal actions initiated in district court; therefore, although defendant’s right to be present under the Sixth Amendment and N.D. Const. art. I, § 12 was not violated when counsel was given the choice to proceed in his absence or face a dismissal of an appeal from municipal court because he had already appeared in the first trial of the case, an error was committed since his presence was required under N.D.R.Crim.P. 43(a). City of Fargo v. Komad, 2006 ND 177, 720 N.W.2d 619, 2006 N.D. LEXIS 184 (N.D. 2006).

Dismissal of Juror.

It was reversible error to dismiss prospective juror outside of presence of defendant. City of Mandan v. Baer, 1998 ND 101, 578 N.W.2d 559, 1998 N.D. LEXIS 108 (N.D. 1998).

Defendant’s right to presence in the courtroom was not violated because defendant’s counsel stated that he had no objection to the questioning of the jurors by the trial judge regarding an incident involving a juror’s use of a cell phone where the juror was ultimately dismissed. State v. Newman, 2007 ND 148, 738 N.W.2d 887, 2007 N.D. LEXIS 150 (N.D. 2007).

Request by Jury.

The defendant had a constitutional right to be present in person during the proceedings involving a jury request for a legal definition and court response thereto, and that right was violated; however, this error was harmless beyond a reasonable doubt, where the trial court, upon receiving the jurors’ request for information, immediately notified the prosecutor and the defendant’s counsel, the court discussed the request with counsel, and the defendant’s attorney approved the trial court’s response to the jury request. State v. Smuda, 419 N.W.2d 166, 1988 N.D. LEXIS 33 (N.D. 1988).

While a trial court committed plain error in responding to a jury’s request for a transcript of a witness’s testimony without calling the jury into open court, the error did not affect defendant’s substantial rights because defendant was not prejudiced by the error; the overwhelming evidence, including the audio recording of the controlled methamphetamine buy, the testimony of a confidential informant, and the testimony of the investigating officer, supported defendant’s conviction for delivery of methamphetamine. State v. Kruckenberg, 2008 ND 212, 758 N.W.2d 427, 2008 N.D. LEXIS 228 (N.D. 2008).

In an assault of a police officer case, defendant was not denied a fair trial when the district court answered requests from the jury while defendant was hospitalized as the procedure for answering such requests under N.D.C.C. § 29-22-05 was followed, and every effort to protect defendant’s rights and to avoid any possibility of prejudice to defendant was made. The discussion about the two jury requests while defendant was hospitalized was harmless beyond a reasonable doubt. State v. Curtis, 2009 ND 34, 763 N.W.2d 443, 2009 N.D. LEXIS 62 (N.D. 2009).

Rereading Evidence to Jury.

In a prosecution for a felony the defendant must be personally present at the entire trial, and where the jury has been recalled and the court stenographer reads evidence to them from his notes, this being done in the absence of the defendant and his attorney and without their knowledge and consent a new trial must be granted. State v. Schasker, 60 N.D. 462, 235 N.W. 345, 1931 N.D. LEXIS 191 (N.D. 1931).

Defendant’s right to be present when testimony was read to the jury and during meetings concerning trial testimony was clearly violated where defendant’s trial counsel waived defendant’s right to be present without his consent; furthermore, the State failed to meet its burden of establishing beyond a reasonable doubt that such error was harmless when it failed to put on any evidence at the evidentiary hearing and instead erroneously attempted to place the burden on the defendant to show he was prejudiced by the violation. Hill v. State, 2000 ND 143, 615 N.W.2d 135, 2000 N.D. LEXIS 151 (N.D. 2000).

Voluntary Absence.

Where a defendant, charged with and on trial for a felony, admitted to and at liberty on bail, voluntarily absents himself from the trial, he waives his right to be present at the rendition of the verdict. State v. Thompson, 56 N.D. 716, 219 N.W. 218, 1928 N.D. LEXIS 192 (N.D. 1928).

V. Double Jeopardy.

In General.

A person is in jeopardy when he is placed on trial, upon a valid information or indictment, before a court of competent jurisdiction, including a jury who has been sworn to try him and all preliminaries have been completed. State v. Panchuk, 53 N.D. 669, 207 N.W. 991, 1926 N.D. LEXIS 20 (N.D. 1926).

The prohibition of this section against a second jeopardy relates to a second jeopardy for the same offense, and to put twice in jeopardy for the same offense the crimes must be identical in law and in fact. State v. Panchuk, 53 N.D. 669, 207 N.W. 991, 1926 N.D. LEXIS 20 (N.D. 1926).

Framers of North Dakota Constitution who created this section and members of the legislature who drafted N.D.C.C. § 29-01-07 and its predecessor section, all dealing with double jeopardy, did not intend a result different from that mandated by the Fifth Amendment to the United States Constitution; further prosecution of defendant was not barred by double jeopardy. State v. Allesi, 216 N.W.2d 805, 1974 N.D. LEXIS 235 (N.D. 1974).

This article of the Constitution commands protection against double jeopardy for the same offense. City of Dickinson v. Kraft, 472 N.W.2d 441, 1991 N.D. LEXIS 127 (N.D. 1991).

Administrative License Suspension.

An administrative license suspension followed by a criminal conviction does not constitute multiple punishment for the same offense, and thus does not violate the Double Jeopardy Clause under either the United States Constitution or the North Dakota Constitution. State v. Kvislen, 544 N.W.2d 876, 1996 N.D. LEXIS 78 (N.D. 1996).

Amendment of Complaint.

Where trial court, without having the authority to do so, amended the criminal complaint without the consent or request by the prosecution so as to charge a lesser offense, and then accepted defendant’s guilty plea to the lesser offense, and it was the defendant who initiated and pursued the action with his motion to amend the complaint that precipitated the trial court’s error, vacation of the amended complaint and guilty plea and the reinstatement of the original complaint did not constitute double jeopardy. State v. Klose, 334 N.W.2d 647, 1983 N.D. LEXIS 293 (N.D. 1983).

Appeal by City.

The city, in a criminal case prosecuted under an ordinance, has no right to move for a new trial after the defendant has been acquitted. City of Minot v. Whitfield, 71 N.W.2d 766, 1955 N.D. LEXIS 132 (N.D. 1955).

Appeal by Defendant.

Where accused moved for and obtained new trial, he waived any right to set up defense of former jeopardy to prevent complete new trial on original charge. State v. Holy Bull, 238 N.W.2d 52, 1975 N.D. LEXIS 159 (N.D. 1975), overruled, State v. Himmerick, 499 N.W.2d 568, 1993 N.D. LEXIS 77 (N.D. 1993).

Appeal by State.

The state cannot appeal from the trial court’s direction of a verdict in favor of the defendant in a criminal action, because to do so would be double jeopardy. State v. Kelsey, 49 N.D. 148, 190 N.W. 817, 1922 N.D. LEXIS 29 (N.D. 1922).

Civil Forfeiture Dismissed.

Where a civil forfeiture proceeding against defendant’s automobile was dismissed because it had not been instituted promptly, and there was no final administrative or judicial action against the property, even if the civil forfeiture proceeding was characterized as punitive rather than remedial, jeopardy did not attach to this civil forfeiture proceeding because it was dismissed before final action was taken against the property. State v. O'Rourke, 544 N.W.2d 384, 1996 N.D. LEXIS 49 (N.D. 1996).

Civil Sanctions.

In a criminal contempt case arising from a visitation dispute, civil court sanctions for the same incident did not result in double jeopardy. State v. Stockert, 2004 ND 146, 684 N.W.2d 605, 2004 N.D. LEXIS 276 (N.D. 2004).

Crimes and Criminal Procedure.

—In General.

Evidence presented to the juvenile court, objectively considered, did not raise sufficient doubt about the juvenile’s competency to proceed with the adjudicative stage of the juvenile’s delinquency proceedings in a case where the juvenile allegedly had committed two acts of disorderly conduct. As a result, the juvenile could not show that the juvenile’s due process right to a competency hearing under the Fifth Amendment, U.S. Const. amend. V, Fourteenth Amendment, U.S. Const. amend. XIV, and N.D. Const. art. I, § 12 was violated. State v. T.S. (In re T.S.), 2011 ND 118, 798 N.W.2d 649, 2011 N.D. LEXIS 122 (N.D. 2011).

Because the district court did not err in finding double jeopardy to be inapplicable, the district court did not err by denying defendant’s requested jury instruction and special verdict form seeking a jury finding on double jeopardy. State v. Borland, 2021 ND 52, 956 N.W.2d 412, 2021 N.D. LEXIS 47 (N.D. 2021).

Discharge of Jury

Double jeopardy barred further prosecution of defendant on a gross sexual imposition charge because jeopardy had attached when the jury was empaneled and sworn and then was discharged from the case by the trial court on its own motion. Discharging the jury was not manifestly necessary even though it was done for the benefit of defendant, who had requested that an attorney be appointed to represent him. State v. Voigt, 2007 ND 100, 734 N.W.2d 787, 2007 N.D. LEXIS 96 (N.D. 2007).

Lesser Degree of Same Crime.

Where the defendant has been convicted of a lesser degree of crime charged in an information and his sentence set by the jury, he cannot thereafter be tried, convicted and sentenced for a greater degree of the same crime charged in the original information. State v. Barry, 14 N.D. 316, 103 N.W. 637, 1905 N.D. LEXIS 37 (N.D. 1905).

Mistrial Declared.

Where judge discovered after prosecution’s evidence was presented that four defendants had not been arraigned, and defendants refused to waive arraignment or enter plea, judge did not abuse his discretion in declaring mistrial and subsequently arraigning and trying defendants, and second trial did not constitute double jeopardy. State v. Berger, 235 N.W.2d 254, 1975 N.D. LEXIS 142 (N.D. 1975), cert. denied, 425 U.S. 913, 96 S. Ct. 1511, 47 L. Ed. 2d 764, 1976 U.S. LEXIS 880 (U.S. 1976).

Double jeopardy did not bar defendant’s second jury trial where first jury failed to reach a unanimous decision and a mistrial was declared after two and a half hours of deliberation; fact that prosecution learned of a particular item of evidence that had confused the jury at the first trial and sought to address the deficiency in the evidence at the second trial did not mandate double jeopardy bar as this was not the type of benefit to the State that would implicate the Double Jeopardy Clause and, although the time of the deliberations was short, given the depth of the jury’s division and the resultant threat it posed to an impartial verdict, the trial judge acted within the confines of his discretion, manifest necessity, and the ends of public justice in declaring a mistrial. State v. Linghor, 2004 ND 224, 690 N.W.2d 201, 2004 N.D. LEXIS 364 (N.D. 2004).

Multiple Convictions.

Defendant’s simultaneous prosecutions for criminal trespass and violation of a disorderly conduct restraining order did not violate double jeopardy where, contrary to defendant’s claim, the charge for violation of the disorderly conduct restraining order involved more than defendant entering his ex-wife’s residence; although entering the ex-wife’s house was involved factually in both crimes, the two crimes each contained an element not included in the other. State v. Bertram, 2006 ND 10, 708 N.W.2d 913, 2006 N.D. LEXIS 6 (N.D. 2006).

Even if the City of Williston, North Dakota, had adopted N.D.C.C. § 12.1-08-11 verbatim as its city ordinance or the State had stipulated to the substitution, double jeopardy did not attach, because the statute to which defendant had already pled guilty was criminalized flight by anything other than a motor vehicle, including on foot, under N.D.C.C. § 12.1-08-11, and N.D.C.C. § 39-10-71, governed flight by motor vehicle. Thus, a comparison of the two offenses revealed that they were two distinctly different crimes; therefore, double jeopardy could not attach and his conviction under N.D.C.C. 39-10-71(1) was affirmed. State v. Stensaker, 2007 ND 6, 725 N.W.2d 883, 2007 N.D. LEXIS 7 (N.D. 2007).

Multiple convictions and punishments are not permitted for the same conduct under the theft by deception, forgery or counterfeiting, and deceptive writings statutes, N.D.C.C. §§ 12.1-24-01(1), 12.1-24-03(1), and 12.1-23-02(2). State v. Moos, 2008 ND 228, 758 N.W.2d 674, 2008 N.D. LEXIS 213 (N.D. 2008).

No Violation Found.

Double jeopardy protection did not prohibit retrial of a defendant where he appealed and his conviction was reversed on appeal because he had been denied his right to a jury trial. State v. Kranz, 353 N.W.2d 748, 1984 N.D. LEXIS 334 (N.D. 1984).

State’s appeal from a judgment of “not guilty,” entered upon a dismissal of a complaint charging the defendants with violating the compulsory school-attendance law, did not violate the defendant’s double jeopardy rights where the trial court determined only that the statutory requirement of teacher certification imposed an unconstitutional infringement on the defendant’s right to free exercise of religion; therefore, the judgment was not a resolution of some or all of the factual elements of the offense charged and was not an acquittal. State v. Melin, 428 N.W.2d 227, 1988 N.D. LEXIS 175 (N.D.), cert. denied, 488 U.S. 942, 109 S. Ct. 367, 102 L. Ed. 2d 357, 1988 U.S. LEXIS 5035 (U.S. 1988).

A non-criminal charge of exhibition driving and a later criminal charge of driving under the influence does not place a defendant in double jeopardy. City of Fargo v. Hector, 534 N.W.2d 821, 1995 N.D. LEXIS 125 (N.D. 1995).

Because defendant’s conviction for care required in N.D.C.C. § 39-09-01.1 was a moving violation and not a criminal offense, the subsequent charge for reckless driving did place defendant in double jeopardy. State v. Vanberkom, 2018 ND 167, 913 N.W.2d 764, 2018 N.D. LEXIS 171 (N.D. 2018).

Defendant’s retrial was not barred by double jeopardy because her motion for mistrial precluded double jeopardy from applying; defendant had not established the city’s conduct in asking a general question of a police officer goaded or provoked her into moving for the mistrial because the police officer was the city’s first witness early in the trial, and it had no reason to provoke a mistrial at that early stage. City of W. Fargo v. Le Ekstrom, 2020 ND 37, 938 N.W.2d 915, 2020 N.D. LEXIS 35 (N.D. 2020).

Double jeopardy did not bar retrial following defendant’s first and second trials because the jury’s guilty verdict in the first trial was set aside at defendant’s insistence after the discovery of juror misconduct, and thus, the State was entitled to retry the case; double jeopardy did not prohibit a retrial of defendant following the second trial because the district court granted his motion for mistrial after the jury communicated it could not reach a unanimous verdict. State v. Borland, 2021 ND 52, 956 N.W.2d 412, 2021 N.D. LEXIS 47 (N.D. 2021).

Plea Before Verdict Necessary.

Former jeopardy is not a bar unless it is claimed by a plea before verdict. State v. Barnes, 29 N.D. 164, 150 N.W. 557, 1915 N.D. LEXIS 1 (N.D. 1915).

Preliminary Hearing.

Appellate review of the trial court’s determination at the preliminary hearing was not barred by the Double Jeopardy Clause because defendant had not yet been put to trial before a trier of fact and jeopardy had not attached. State v. Foley, 2000 ND 91, 610 N.W.2d 49, 2000 N.D. LEXIS 98 (N.D. 2000).

Prior Administrative Proceedings.

—In General.

Criminal and administrative proceedings for the same conduct do not constitute double jeopardy because the administrative action serves the remedial goal of protecting the public from impaired drivers, and the suspension of the license is not greatly disproportionate to the remedial goal. State v. Zimmerman, 539 N.W.2d 49, 1995 N.D. LEXIS 181 (N.D. 1995).

—Administrative License Suspension.

Under the United States Constitution and under the North Dakota Constitution, a criminal prosecution for DUI does not constitute double jeopardy even though the defendant’s driver’s license previously had been suspended in an administrative hearing for the same DUI offense. State v. Jacobson, 545 N.W.2d 152, 1996 N.D. LEXIS 63 (N.D. 1996).

Prior Voidable Judgment.

The fact that the proceedings had when the plea of guilty was interposed and the judgment of conviction was pronounced were irregular and erroneous and that as a consequence such judgment was rendered voidable does not destroy the effectiveness thereof as a bar to further prosecution. State ex rel. Johnson v. Thomson, 76 N.D. 125, 34 N.W.2d 80 (1948), decided prior to the adoption of N.D.R.Crim.P. 21.

Prison Disciplinary Proceedings.

Defendant’s assault conviction following prison disciplinary proceedings based on the same conduct did not violate the prohibition against double jeopardy. State v. Kelly, 2001 ND 135, 631 N.W.2d 167, 2001 N.D. LEXIS 150 (N.D. 2001).

Question of Fact.

When the plea of prior acquittal is interposed, the defendant has a constitutional right to have that issue, insofar as it is one of fact, submitted to the jury with appropriate instructions as to the law. State v. Panchuk, 53 N.D. 669, 207 N.W. 991, 1926 N.D. LEXIS 20 (N.D. 1926).

The question whether a person who is being tried for a crime previously has been convicted or acquitted of the offense, and thus has been in jeopardy is a question for the court, acting as trier of facts, to determine. Ryan v. Nygaard, 70 N.D. 687, 297 N.W. 694, 1941 N.D. LEXIS 218 (N.D. 1941).

Sex Offender Commitment.

The creation of a civil procedure for involuntary commitment of sexually dangerous individuals under N.D.C.C. ch. 25-03.3 did not violate double jeopardy; therefore, an offender convicted of several sexual offenses was properly committed after several evaluations. Van Grinsven v. G.R.H. (In re G.R.H.), 2006 ND 56, 711 N.W.2d 587, 2006 N.D. LEXIS 70 (N.D. 2006).

N.D.C.C. § 25-03.3-13, which authorizes the executive director of the North Dakota Department of Human Services to determine the least restrictive treatment, does not negate the civil nature of the law and does not violate the double jeopardy provisions of the state and federal constitutions; moreover, there are pre-commitment and post-commitment safeguards designed to protect liberty interests as a person proceeds through the treatment process, so due process is also not violated. Van Grinsven v. G.R.H. (In re G.R.H.), 2006 ND 56, 711 N.W.2d 587, 2006 N.D. LEXIS 70 (N.D. 2006).

Sex Offender Registration.

Defendant’s conviction for luring a minor by computer in violation of N.D.C.C. § 12.1-20-05.1 was proper where the notification provisions of N.D.C.C. § 12.1-32-15 did not violate procedural due process requirements or double jeopardy; the required registration was part and parcel of the conviction for the offense and was not a separate proceeding. State v. Backlund, 2003 ND 184, 627 N.W.2d 431 (2003).

Waiver of Right.

A defendant waives his constitutional protection against double jeopardy after a verdict or judgment against him is set aside at his own instance, either by motion in trial court or by successful appeal. City of Minot v. Knudson, 184 N.W.2d 58, 1971 N.D. LEXIS 159 (N.D. 1971).

When Jeopardy Attaches.

Fact that defendant made a preliminary appearance before one judge in one county and a second preliminary appearance before another judge in another county did not violate his right against twice being placed in jeopardy because jeopardy does not attach in criminal proceedings until the defendant’s trial commences, which in a jury trial occurs when the jury is empaneled and sworn, and in a nonjury trial when the court begins to hear the evidence. State v. Jensen, 333 N.W.2d 686, 1983 N.D. LEXIS 269 (N.D. 1983).

Juvenile’s double jeopardy rights, U.S. Const. amend. V, N.D. Const. art. I, § 12, N.D.C.C. § 29-01-07, were not violated by the juvenile court’s adjudication of delinquency premised on evidence of same conduct which formed the basis of the sanction imposed by the juvenile drug court. Ubben v. O.F. (In re O.F.), 2009 ND 177, 773 N.W.2d 206, 2009 N.D. LEXIS 190 (N.D. 2009).

VI. Self-Incrimination.

In General.

Prosecutor’s question to prospective jurors during voir dire proceeding, asking if anybody believed that the state must come forward with a confession from the defendant in every case, did not violate defendant’s constitutional right against self-incrimination. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

Where defendant admitted incestuous relationship with his daughter during a juvenile court hearing on whether the daughter was a deprived child, state’s use of defendant’s admission as substantive evidence in prosecution of defendant for the offense of sexual imposition did not violate defendant’s constitutional self-incrimination rights where defendant was not under arrest at the time of the admission, was represented by counsel at the juvenile hearing, and made the admission after being advised of his right to not incriminate himself, of other rights he would be waiving if he admitted the incestuous relationship, and that the admission could be used in subsequent criminal proceedings. State v. Gross, 351 N.W.2d 428, 1984 N.D. LEXIS 313 (N.D. 1984).

Comment by Prosecutor.

Prosecutor’s statement made during voir dire of the jury, when taken in the context in which it was made, that “someone will not get up and say I did it” did not constitute an improper comment on defendant’s Fifth Amendment right against self-incrimination and did not force defendant to take the witness stand at trial. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

The prosecutor does not comment on the defendant’s failure to testify if the statement is made before the defendant has an opportunity to testify. A criminal defendant electing to testify who was not “challenged” by the prosecutor to take the stand, is not testifying against himself in violation of the privilege against self-incrimination. State v. His Chase, 531 N.W.2d 271, 1995 N.D. LEXIS 84 (N.D. 1995).

State’s comments about lack of testimony to contradict evidence offered to prove the elements of delivery of a controlled substance and comments drawing attention to an inconsistency between the State and defense’s accounts, taken in context, did not reflect on the defendant’s failure to testify, and therefore, did not infringe on the defendant’s right against self-incrimination. State v. Keyes, 2000 ND 83, 609 N.W.2d 428, 2000 N.D. LEXIS 85 (N.D. 2000).

Defendant’s rights under the Fifth Amendment, the Fourteenth Amendment, N.D.C.C. § 29-21-11, and N.D. Const. art. I, § 12 were not violated by a statement made by a prosecutor during closing arguments because the statement referred to defendant’s failure to deny that a motel room, in which marijuana, cash, drug paraphernalia, and luggage containing men’s and women’s clothing were found, was his when he made voluntary assertions to police prior to the reading of his rights and the statement referred to evidence, not to defendant’s silence. State v. Myers, 2006 ND 242, 724 N.W.2d 168, 2006 N.D. LEXIS 248 (N.D. 2006).

Custodial Interrogation.

Defendant’s contention that once he requested counsel and the conversation with the agent proceeded instead of ceasing, violating his Miranda rights, was rejected because he was not in custody, as he went unrestrained to the police station, was told he was free to leave, and told the agent he understood he was free to leave at any time. State v. Hansford, 2019 ND 52, 923 N.W.2d 113, 2019 N.D. LEXIS 46 (N.D. 2019).

—No Right to Electronic Recording.

While electronic recording of all interrogations might be good practice, defendant had not persuaded the Supreme Court of North Dakota that such a right existed under North Dakota’s Constitution, nor had he persuaded the court that it should, after the fact, exercise supervisory power to reverse his conviction. Therefore, the court declined to hold that criminal defendants had a right to electronic recording of all custodial interrogations under N.D. Const. art. 1, § 12. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

Defense to Contempt Proceedings.

Reliance upon the constitutional privilege of refraining from answering incriminating questions, does not purge one of contempt consisting in the failure to render an account ordered by the court having jurisdiction. State v. Dufek, 49 N.D. 851, 193 N.W. 928, 1922 N.D. LEXIS 7 (N.D. 1922).

Court did not abuse its discretion in charging witness with contempt for refusing to testify, because witness had right to invoke the privilege against self-incrimination with respect to particular questions and not a blanket constitutional right not to testify. State v. Zahn, 1997 ND 65, 562 N.W.2d 737, 1997 N.D. LEXIS 77 (N.D. 1997).

Exercise of Privilege.

A witness must properly exercise the privilege against self-incrimination in order to obtain its protection; the witness must claim the privilege with respect to particular questions, so the court can determine whether the witness reasonably believes there is a real and appreciable danger that an answer would either directly incriminate him or furnish a link in the chain of evidence. Grajedas by & Through Takes the Horse v. Holum (In re Grajedas), 515 N.W.2d 444, 1994 N.D. LEXIS 93 (N.D. 1994).

Instrumentalities of Crime.

The introduction into evidence of instrumentalities used in the crime of manufacturing intoxicating liquors, which were seized by arresting officers, does not violate the provision of this section against compelling a defendant to be a witness against himself. State v. Pauley, 49 N.D. 488, 192 N.W. 91, 1922 N.D. LEXIS 81 (N.D. 1922).

An automobile driver who voluntarily admits the transportation of intoxicating liquor may be arrested by a private person and any liquor found in the automobile plus the statement are admissible in evidence despite the self-incrimination provisions of this section. State v. Shank, 52 N.D. 94, 202 N.W. 128, 1924 N.D. LEXIS 119 (N.D. 1924).

Interrogation Without Counsel.

The continued interrogation of defendant after he indicated he wanted to consult with an attorney was error, but without prejudice since the defendant had given all his incriminating answers prior to asking for an attorney. State v. Hagge, 224 N.W.2d 560, 1974 N.D. LEXIS 144 (N.D. 1974).

Miranda Rights.

—Waiver.

The prosecution must show waiver of Miranda rights by at least a preponderance of the evidence; a confession may be involuntary and inadmissible even if police have complied with the Miranda requirements. State v. Newnam, 409 N.W.2d 79, 1987 N.D. LEXIS 342 (N.D. 1987).

Where the defendant was 25 years old with an average educational background and intelligence, had significant prior experience in the criminal justice system and had waived his Miranda rights no fewer than ten times before the date of questioning, his appearance at the police station was voluntary and not under threat of revocation of probation, his statement, after he was advised of his Miranda rights, was free-flowing, not coached, and divulged information not previously known to the law enforcement officials, and his statements were not the result of any improper coercion or pressure or unequal confrontation, the defendant’s statements were freely and voluntarily given as a result of an informed and knowing waiver of his rights, and the trial court correctly refused to suppress his statement and correctly allowed it as evidence in the trial. State v. Newnam, 409 N.W.2d 79, 1987 N.D. LEXIS 342 (N.D. 1987).

Where the police asked the defendant to come to the police station, and he was informed that he was not under arrest, that he was free to leave at any time, and there was no indication that the questioning took place while his freedom to depart was restricted in any way, his pre-Miranda statements were not made while he was in custody or otherwise deprived of his freedom of action in any significant way. State v. Newnam, 409 N.W.2d 79, 1987 N.D. LEXIS 342 (N.D. 1987).

Where a defendant received an inadequate Miranda warning because he was not informed that his statements may be used against him, a district court’s finding that his waiver was voluntary was incorrect. State v. Webster, 2013 ND 119, 834 N.W.2d 283, 2013 N.D. LEXIS 126 (N.D. 2013).

District court did not err in denying defendant’s motion to suppress incriminating statements made by him to law enforcement officers as he voluntarily, knowingly, and intelligently waived his Miranda rights because he possessed sufficient verbal and reading comprehension to understand the consequences of his waiver and he had substantial previous interaction with law enforcement based on his lengthy criminal record; he was capable of understanding the consequences of his statements; the setting for the police interview was not coercive; and the officers did not use improper questioning tactics. State v. Brickle-Hicks, 2018 ND 194, 916 N.W.2d 781, 2018 N.D. LEXIS 208 (N.D. 2018).

Miranda Warnings.

—In General.

Custodial interrogation in a police dominated atmosphere is the test for determining if the Miranda warnings are required; mere investigatory focus does not require the giving of the Miranda warnings. State v. Fields, 294 N.W.2d 404, 1980 N.D. LEXIS 261 (N.D. 1980).

Defendant was estopped from asserting that failure to advise him of his right to have an attorney appointed if he could not afford one violated his rights as set forth in Miranda where he interrupted the officer giving him his Miranda rights before he could be advised of his right to appointed counsel and said: “I know my rights. You don’t have to go any further”. State v. Walden, 336 N.W.2d 629, 1983 N.D. LEXIS 390 (N.D. 1983).

Where there is no evidence that the defendant was in custody or had his freedom of movement restricted when his statements were given, Miranda warnings were not required. State v. Sabinash, 1998 ND 32, 574 N.W.2d 827, 1998 N.D. LEXIS 36 (N.D. 1998).

Since the police officers failed to inform a defendant that his statements may be used as evidence against him in a court of law, the district court erred in denying his motion to suppress his statements made during interrogation. The Miranda warning was inadequate. State v. Webster, 2013 ND 119, 834 N.W.2d 283, 2013 N.D. LEXIS 126 (N.D. 2013).

—Administration of Field Sobriety Tests.

Miranda warnings are not required to be given to drunken driving suspects before administering field sobriety tests consisting of having suspect walk heel to toe on a line, putting his finger to his nose, standing on one leg, and having his eyes observed after shining a flashlight in them; such tests are real and physical evidence and do not activate the protections afforded by the Fifth Amendment. City of Wahpeton v. Skoog, 300 N.W.2d 243, 1980 N.D. LEXIS 340 (N.D. 1980).

—Juveniles.

Juvenile should have been given her Miranda rights before being questioned by police concerning a crime where such questioning constituted a custodial interrogation which had focused upon the juvenile. Huff v. P., 302 N.W.2d 779, 1981 N.D. LEXIS 228 (N.D. 1981).

—Not Required.

Defendant’s statement was not the result of a custodial interrogation in a police-dominated atmosphere and the failure to give Miranda warnings before being questioned by police did not require the exclusion of the statement at trial where the statement was given in response to a police officer’s question asked as part of an auto accident investigation as to whether defendant was the driver of the auto involved in the accident, the question was asked while defendant was in the hospital seeking medical advice on his own free will and not the result of any action by the authorities, defendant’s friends and not the officer had taken defendant to the hospital, the question was asked in the presence of defendant’s friends and a nurse, and defendant was not deprived of his freedom by the authorities in any significant way when the question was asked. State v. Fields, 294 N.W.2d 404, 1980 N.D. LEXIS 261 (N.D. 1980).

Miranda warnings were not necessary before police officer’s questioning to obtain information for an accident-report form, and defendant’s admission of driving a car made during such questioning was admissible even though the Miranda warnings had not been given, where the defendant was not in custody when so questioned. State v. Abrahamson, 328 N.W.2d 213, 1982 N.D. LEXIS 391 (N.D. 1982).

Defendant’s statements made to police before the giving of any Miranda warnings were admissible as evidence at trial where the statements were unsolicited and volunteered and made in response to police officer’s general on-the-scene investigation questions which were not directed at any particular person. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

Where police received radio call that a red truck was being driven in an erratic manner and, after approaching a parked red truck, observed that defendant smelled of alcohol and had difficulty walking, police questioning of defendant as to whether he was the driver of the truck was not a custodial interrogation in a police dominated atmosphere requiring the giving of Miranda warnings, but was of an inquisitory and investigative nature, where the questions were asked while the parties were alongside the truck with other persons present, defendant responded to the question before dexterity tests were administered and before he was arrested, and police officer testified that defendant would have been free to go if he said that he was not the driver of the truck. State v. Berger, 329 N.W.2d 374, 1983 N.D. LEXIS 223 (N.D. 1983).

Evidence of defendant’s marijuana pipe necklace was improperly suppressed where defendant admitted to an officer, after she was legally detained, that her necklace was a marijuana pipe; she was not entitled to a Miranda warning as she was not in custody, and her statement was voluntary. State v. Haibeck, 2004 ND 163, 685 N.W.2d 512, 2004 N.D. LEXIS 292 (N.D. 2004).

—Prison Inmates.

Incarceration does not automatically make an inmate in custody for Miranda purposes. Some added restriction on the inmate’s freedom of movement during the interrogation itself must exist. State v. Conley, 1998 ND 5, 574 N.W.2d 569, 1998 N.D. LEXIS 16 (N.D. 1998).

If a prisoner makes a challenged statement when he was not subjected to more than the usual restraint on a prisoner’s freedom of movement, the prisoner is not in custody and Miranda warnings are not required. State v. Conley, 1998 ND 5, 574 N.W.2d 569, 1998 N.D. LEXIS 16 (N.D. 1998).

Under the totality of the circumstances, a reasonable prisoner in the situation of the defendant (only suspect in the investigation, remained handcuffed throughout questioning which took place in the state penitentiary’s captain’s office) would have believed himself in custody during the investigatory interview. State v. Conley, 1998 ND 5, 574 N.W.2d 569, 1998 N.D. LEXIS 16 (N.D. 1998).

Disciplinary committee questioning directed at an accused inmate is generally considered custodial interrogation requiring compliance with Miranda if criminal charges are a realistic possibility. State v. Conley, 1998 ND 5, 574 N.W.2d 569, 1998 N.D. LEXIS 16 (N.D. 1998).

—Public Safety Exception.

Statement was legally obtained from defendant after his seizure but absent Miranda warnings where, after the stop, an officer asked defendant if he had a weapon, defendant replied that there was a weapon in the vehicle, the officer questioned defendant for purposes of officer and public safety, and therefore, the public safety exception to Miranda applied and the statement was admissible. State v. Anderson, 2006 ND 44, 710 N.W.2d 392, 2006 N.D. LEXIS 48 (N.D. 2006).

—Routine Traffic Offense.

While Miranda warnings may not be applicable to routine traffic offenses where a driver is detained no longer than is necessary for the issuance of a citation, Miranda warnings should be given before questioning a person who is in custody or deprived of his freedom by the authorities for a more serious offense such as driving while intoxicated. State v. Fields, 294 N.W.2d 404, 1980 N.D. LEXIS 261 (N.D. 1980).

Personal Privilege.

The privilege against self-incrimination must be claimed in person under the sanctity of oath and with sufficient definiteness to render the claim clear. State v. McKay, 54 N.D. 801, 211 N.W. 435, 1926 N.D. LEXIS 85 (N.D. 1926).

Presence at Crime Scene.

While a witness’ presence at the scene of a crime is normally a preliminary question that does not entitle the witness to exercise the privilege of silence, it is not true that a witness’ presence will never furnish a link in the chain of evidence necessary to prosecute him; a witness’ presence at the scene of a crime would be important incriminating evidence for a charge of aiding and abetting, complicity, or conspiracy. Grajedas by & Through Takes the Horse v. Holum (In re Grajedas), 515 N.W.2d 444, 1994 N.D. LEXIS 93 (N.D. 1994).

Production of Records.

An admission in evidence, over objection, of a public record of sales of liquor of a druggist is not erroneous as compelling him to be a witness against himself. State ex rel. McClory v. Donovan, 10 N.D. 203, 86 N.W. 709, 1901 N.D. LEXIS 22 (N.D. 1901).

The provision against self-incrimination will shield a witness against the production of private books and papers, but that protection does not extend to public records. State ex rel. McClory v. Donovan, 10 N.D. 203, 86 N.W. 709, 1901 N.D. LEXIS 22 (N.D. 1901).

Publication of Federal Tax Receipt.

Chapter 189, S.L. 1907, requiring the registration and publication of federal internal revenue tax receipts did not violate the requirement of immunity from self-incrimination. State ex rel. Flaherty v. Hanson, 16 N.D. 347, 113 N.W. 371, 1907 N.D. LEXIS 57 (N.D. 1907), rev'd, 215 U.S. 515, 30 S. Ct. 179, 54 L. Ed. 307, 1910 U.S. LEXIS 1857 (U.S. 1910).

Rejection by Court.

A witness’ claim of privilege cannot be rejected by the trial court or on appeal unless it is perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answers cannot possibly have such tendency to incriminate. Grajedas by & Through Takes the Horse v. Holum (In re Grajedas), 515 N.W.2d 444, 1994 N.D. LEXIS 93 (N.D. 1994).

Scope of Privilege.

A defendant in a criminal case who becomes a witness in his own behalf thereby waives his constitutional privilege of not answering proper questions that may tend to convict him of the crime for which he is on trial, but he does not thereby waive his privilege to decline to give answers to questions which may tend to convict him of collateral crimes, when such questions are asked solely to affect his credibility. State v. Pancoast, 5 N.D. 516, 67 N.W. 1052 (N.D. 1896).

Under this section the witness is protected from testifying to facts and circumstances from which his connection with, or guilt of, a crime, may be proven through other sources than his answers. In re Beer, 17 N.D. 184, 115 N.W. 672, 1908 N.D. LEXIS 27 (N.D. 1908).

Cross-examination by prosecutor of defendant at trial on question of why he was silent at preliminary hearing was a violation of due process, although under the facts of the case such error was harmless and did not require reversal. State v. Carmody, 253 N.W.2d 415, 1977 N.D. LEXIS 268 (N.D. 1977).

Requiring an inmate to provide a sample under N.D.C.C. § 31-13-03 did not violate the privilege against self-incrimination. State v. Norman, 2003 ND 66, 660 N.W.2d 549, 2003 N.D. LEXIS 78 (N.D. 2003).

Tacit Admission.

Evidence of an accusation made by friend of deceased to the defendant that defendant had killed the deceased, and the silent conduct of the defendant in response to the accusation, constituted a tacit admission, which was admissible in prosecution’s case in chief at trial for negligent homicide; admission of such evidence did not violate defendant’s rights against self-incrimination where the tacit admission occurred before defendant’s arrest. State v. Helgeson, 303 N.W.2d 342, 1981 N.D. LEXIS 224 (N.D. 1981).

Testimonial Evidence.

Because the privilege against self-incrimination protects only against the compelled disclosure of “testimonial evidence”, it would not have prohibited the compelled production by a suspect of his boots, so that officers might compare the pattern on their soles to a print found in the snow at a burglary site. State v. Metzner, 244 N.W.2d 215, 1976 N.D. LEXIS 239 (N.D. 1976).

Assuming that a correctional specialist’s testimony could have been construed as a comment about defendant’s post-arrest silence, testimony about defendant’s effective denial of involvement in a murder was not prejudicial to defendant and could not have affected the outcome of the proceeding. Defendant was not denied a fair trial. State v. Gaede, 2007 ND 125, 736 N.W.2d 418, 2007 N.D. LEXIS 124 (N.D. 2007).

Testimony Before Grand Jury.

A witness sworn before a grand jury cannot be compelled to answer questions which would tend to incriminate him, and is privileged from answering such questions unless granted unconditional immunity from prosecution for the offense concerning which he is testifying by statute. In re Beer, 17 N.D. 184, 115 N.W. 672, 1908 N.D. LEXIS 27 (N.D. 1908).

Urine Testing for Drug Use.

State penitentiary urine screening program to test prisoner for drug use does not violate prisoner’s right against self-incrimination. Hampson v. Satran, 319 N.W.2d 796, 1982 N.D. LEXIS 266 (N.D. 1982).

Voluntariness of Statement.

Although defendant was given the Miranda warnings prior to his confession, that fact alone did not make the confession voluntary; defendant’s confession to police officers was not voluntary, even though he had been given the Miranda warnings, and was therefore not admissible evidence, where at the time he gave the confession he was still scared and frightened as a result of an earlier confrontation with the victim and another person in which he was shouted at, chased, captured, and taken to the police station. State v. Rovang, 325 N.W.2d 276, 1982 N.D. LEXIS 361 (N.D. 1982).

The determination of whether criminal defendant’s statement given to police has been voluntarily given is contingent upon whether or not the defendant has voluntarily waived his right to remain silent and whether or not the statement was voluntarily made. State v. Walden, 336 N.W.2d 629, 1983 N.D. LEXIS 390 (N.D. 1983).

When a defendant attacks the voluntariness of a confession on due process grounds, the outcome depends on the totality of the circumstances; the same approach determines whether a defendant voluntarily, knowingly, and intelligently waived his rights. State v. Newnam, 409 N.W.2d 79, 1987 N.D. LEXIS 342 (N.D. 1987).

Delay in arraignment is regarded as a factor to be considered under the totality of the circumstances in determining whether a statement is involuntary and therefore inadmissible under the Due Process Clause; delay, by itself, did not make the defendant’s statements inadmissible where the statements made during the delay were only additional to clarify the main confession made shortly after his arrest. State v. Newnam, 409 N.W.2d 79, 1987 N.D. LEXIS 342 (N.D. 1987).

Although normally an appellee arguing for affirmance may assert reasons that were not raised below, where appellee argued that an investigating officer’s testimony should be suppressed because of allegedly fraudulent statements made during an interview with the appellee, and no finding was made by the trial court as to whether the statements were fraudulent, the case was remanded. State v. Murray, 510 N.W.2d 107, 1994 N.D. LEXIS 4 (N.D. 1994).

An implied threat of prosecution or promise of leniency by police, without more, is insufficiently coercive to render a confession involuntary. State v. Bjornson, 531 N.W.2d 315, 1995 N.D. LEXIS 89 (N.D. 1995).

Record supported the district court’s conclusion that defendant’s confession was voluntary; he was forty-two years old, a high school graduate, held a steady job, owned two homes, and was previously incarcerated for six months and therefore had experience with law enforcement. Although there was some evidence that defendant had a low intelligence level and could not read or write well, that alone was not enough to render his confession involuntary. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

The setting in which defendant’s confession was obtained supported the district court’s conclusion that the confession was voluntary where he drove himself to the police station at the request of law enforcement, he was interviewed in the one-room police department with the door closed, but not locked, defendant was seated nearest to the door, and he was free to leave during the interview. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

Defendant was not compelled to provide his probation officer information that resulted in the charges against him in the instant case in violation of his rights under the Fifth Amendment and N.D. Const. art. I, § 12, but instead voluntarily provided the information. The evidence showed that defendant voluntarily sought the change in his probation condition restricting his presence around minors to permit him to continue living with his wife after their child was born; there was no evidence that defendant was specifically told by his probation officer that any failure to take the polygraph or to answer a question would result in probation revocation. State v. Crabtree, 2008 ND 174, 756 N.W.2d 189, 2008 N.D. LEXIS 176 (N.D. 2008).

Waiver of Privilege.

A defendant in a criminal case who takes the witness stand in his own behalf is subject to the same rules of cross-examination as govern other witnesses, and he is required to answer any relevant and proper question on cross-examination that will tend to convict him of the crime for which he is being tried. State v. Pancoast, 5 N.D. 516, 67 N.W. 1052 (N.D. 1896).

Where an accused voluntarily takes the witness stand in his own behalf he waives his constitutional privilege of not answering questions that may tend to convict him of the crime for which he is on trial, and when he offers testimony upon any fact, the same constitutes a waiver as to all other relevant facts because of the necessary connection between them all. State v. Hanson, 73 N.W.2d 135, 1955 N.D. LEXIS 149 (N.D. 1955).

District court had not erroneously denied defendant’s motion to suppress incriminating statements about the sexual abuse of his young niece and nephew because, inter alia, he was informed of his Miranda rights both verbally and in writing prior to the start of the interview, he signed a waiver of rights form at that time and, even if he was in custody during the interview, the police officers complied with the requirements of the Fifth Amendment. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

VII. Due Process.

Crimes and Criminal Procedure.

—In General.

The due process clause is not intended to interfere with the exercise of the police power in prescribing regulations for the protection and promotion of the public welfare. BRATBERG v. ADVANCE-RUMELY THRESHER CO., 61 N.D. 452, 238 N.W. 552, 1931 N.D. LEXIS 298 (N.D. 1931).

“Due process of law”, as used in the constitutional provision that no person shall be deprived of life, liberty, or property without due process of law, means the law of the land or that which secures the individual from the arbitrary exercise of the powers of government, unrestrained by established principles of private rights and distributive justice. State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 1943 N.D. LEXIS 92 (N.D. 1943).

Due process of law contemplates that the individual is secure from the arbitrary exercise of the powers of government, unrestrained by established principles of private rights and distributive justice. State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 1943 N.D. LEXIS 92 (N.D. 1943).

The due process of law clause of the state constitution must be considered with the constitutional provision defining the inherent rights of men, and there cannot be a violation of the latter unless there is also a violation of the former. State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 1943 N.D. LEXIS 92 (N.D. 1943).

Provision requiring driver’s license upon trial court conviction of specified motor vehicle offenses, in spite of pending appeal, does not violate due process. Kosmatka v. Safety Responsibility Div., 196 N.W.2d 402, 1972 N.D. LEXIS 159 (N.D. 1972).

The Due Process Clause requires definiteness of criminal statutes so that the language, when measured by common understanding and practice, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for judges and juries to fairly administer the law. State v. Schwalk, 430 N.W.2d 317, 1988 N.D. LEXIS 199 (N.D. 1988).

An inmate could not prove his due process rights were violated when he failed to show governmental misconduct or prejudice when statements relating to the case were taken from a private investigator’s office during a valid search. Ellis v. State, 2003 ND 72, 660 N.W.2d 603, 2003 N.D. LEXIS 82 (N.D. 2003).

—Codefendant Plea Bargain.

In prosecution for attempted theft of property, allowing a codefendant, if he testified truthfully as to his involvement and any other person’s involvement, to plea bargain three possible felonies down to a recommended sentence of a one-year imprisonment with the sentence suspended for a period of two years, with the further understanding that his liquor license not be suspended, did not directly confer a financial benefit on the witness, so as to compel the conclusion that the defendant’s due process rights had been violated. State v. Kopp, 419 N.W.2d 169, 1988 N.D. LEXIS 22 (N.D. 1988).

—Consolidation of Counts.

Although defendant was tried for a second count of possession of drug paraphernalia after the trial court ordered the count be dismissed or consolidated, defendant was not prejudiced by the error and there was no due process violation; all the same evidence was received at trial that would have been received if the counts had been consolidated. Myers v. State, 2009 ND 13, 760 N.W.2d 362, 2009 N.D. LEXIS 11 (N.D. 2009).

—Defendant’s Right to Testify.

Defendant waived his right to testify because he waited until after the jury convicted him to advise the district court that he wished he had taken the stand rather than having followed his attorney’s advice not to testify; the district court did not abuse its discretion by refusing to reopen the evidence. Defendant’s statement that “I wanted to take the stand and he said that it was better that I wouldn’t” reflected that he knew he could have testified but chose not to, at least not until the jury had returned a guilty verdict; the record contained nothing about any discussion between defendant and his attorney regarding his right to testify, and did not reflect that the attorney misinformed him about the right to testify, improperly influenced his decision about testifying, or otherwise prevented him from testifying. State v. Mulske, 2007 ND 43, 729 N.W.2d 129, 2007 N.D. LEXIS 42 (N.D. 2007).

—DUI Statute.

N.D.C.C. § 39-08-01 provided adequate notice of proscribed conduct to defendant who was found intoxicated but unconscious behind the wheel of his parked car, and therefore, this section was not unconstitutionally vague as applied to that defendant. State v. Schwalk, 430 N.W.2d 317, 1988 N.D. LEXIS 199 (N.D. 1988).

—In-court Identifications.

In-court identifications at the child’s delinquency hearing were not impermissibly suggestive and unreliable because, even though the child was the only Native American male in the courtroom, the only individual in handcuffs, and was sitting alone with his attorney, the child never requested procedures at trial that may have lessened the suggestiveness of the in-court identification. Any suggestiveness was reduced by the child’s opportunity to cross-examine the witnesses and his ability to raise doubts about the accuracy of the identifications. Turner v. R.W.S. (In the Interest of R.W.S.), 2007 ND 37, 728 N.W.2d 326, 2007 N.D. LEXIS 35 (N.D. 2007).

—Indigent Defendant.

Where an indigent defendant had the opportunity to take statements from each of the officers involved, and was authorized to examine the arresting officer or any other officers at a probable cause hearing, the defendant had an adequate alternative to taking discovery depositions at state expense, and denial of his motion did not violate the equal protection and Due Process clauses of this section. State v. Valgren, 411 N.W.2d 390, 1987 N.D. LEXIS 396 (N.D. 1987).

—Interrogation by Court.

Trial judge is allowed to interrogate witnesses to clarify testimony and ferret out elusive facts so long as he does so impartially; such impartial questioning does not deny defendant a right to a fair trial. State v. Yodsnukis, 281 N.W.2d 255, 1979 N.D. LEXIS 265 (N.D. 1979).

Criminal defendant’s rights were not prejudiced by trial judge’s questioning of witness where such questions only clarified a prior answer and elicited an opinion unrelated to the charge for which defendant was tried, and served to clarify the technical answers given by an expert witness. State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

—Judicial Conduct.

Where trial judge in a criminal bench trial merely inquired if state was going to introduce into evidence pajamas which had been described by testimony, and record showed trial judge did not request or suggest state place pajamas into evidence, trial judge’s conduct did not constitute a partisan abuse of discretion and did not cause undue prejudice to defendant. State v. Foard, 355 N.W.2d 822, 1984 N.D. LEXIS 404 (N.D. 1984).

Defendant was not denied his right to a fair trial where his claim of bias and prejudice by the trial court against him was insufficient for a reasonable person to question the trial judge’s impartiality where defendant merely made a vague assertion the trial judge might have prosecuted him years ago on a prior offense. He did not submit any evidence to support his claim, and the trial court stated that it had no recollection of such a prosecution and that it harbored no bias or prejudice against defendant. State v. Murchison, 2004 ND 193, 687 N.W.2d 725, 2004 N.D. LEXIS 323 (N.D. 2004).

Although the court’s remarks asking the jury members if they would be able to reach a decision or if they were at an impasse, might have been improper, the remarks did not harm defendant; the court’s comments were in defendant’s favor, the jury was allowed to continue deliberating, the court’s comments did not have a coercive effect on the jury, and were not obvious error. State v. Austin, 2007 ND 30, 727 N.W.2d 790, 2007 N.D. LEXIS 30 (N.D. 2007).

—-Jury Misconduct.

Defendant’s right to a fair trial was not violated and he was not entitled to a new trial, N.D.R.Crim.P. 33, as defendant did not establish that a juror was sleeping and the district court watched the jury to make sure all jurors were paying attention; defendant failed to demonstrate he was prejudiced by the allegedly sleeping juror. State v. Myers, 2009 ND 141, 770 N.W.2d 713, 2009 N.D. LEXIS 147 (N.D. 2009).

—Outrageous Government Conduct.

Appellate court overruled defendant’s argument that the district court erred in not dismissing the prosecution based upon outrageous government conduct, because the officer’s conduct did not rise to the level of outrageous government conduct that would bar the prosecution, when although the officer was involved to some degree in all eight of defendant’s prior arrests for driving under suspension, in each case defendant was arrested on valid charges after the officer witnessed him engaging in illegal activity, and the officer had a duty as a law enforcement officer to uphold and enforce the law by arresting defendant for the illegal acts. State v. Hoverson, 2006 ND 49, 710 N.W.2d 890, 2006 N.D. LEXIS 53 (N.D. 2006).

—Preliminary Examinations.

The statute which provides that no preliminary examination is necessary before the trial in criminal actions does not violate this section of the Constitution. State v. Gottlieb, 21 N.D. 179, 129 N.W. 460, 1910 N.D. LEXIS 158 (N.D. 1910).

—Probation Revocation.

Before hearing to revoke probation can be held, due process and Criminal Procedure Rule 32(f) require that probationer be given a notice of sufficient specificity to enable probationer and his counsel to know and understand nature of charge against him and to prepare for hearing on charge; the specificity of an indictment or information is not required but the process must at least name or describe the law or order allegedly violated and give some indication of the circumstances of the alleged violation. McGuire v. Warden of State Farm (State Penitentiary), 229 N.W.2d 211, 1975 N.D. LEXIS 194 (N.D. 1975).

Order by sentencing judge for arrest of a probationer upon judge’s own motion does not compel that hearing on the motion be conducted by some other judge; such action by a judge cannot be equated with action of a parole officer in making a complaint for the same purpose, and judge does not become an interested party ineligible to try the case; due process does not impose an absolute requirement of two hearings (a preliminary hearing to give notice of alleged violations and determine probable cause and a second hearing at which probation may be revoked) merely because proceedings are commenced on motion of court itself. McGuire v. Warden of State Farm (State Penitentiary), 229 N.W.2d 211, 1975 N.D. LEXIS 194 (N.D. 1975).

Insanity was not a defense in a proceeding to revoke probation and the trial court did not violate defendant’s due process rights under this section when it struck the defense of lack of mental responsibility. State v. Olson, 2003 ND 23, 656 N.W.2d 650, 2003 N.D. LEXIS 26 (N.D. 2003).

—Prosecutorial Misconduct.

Defendant’s conviction for murder under N.D.C.C. § 12.1-16-01 was affirmed because he failed to object to the prosecutor’s comments on closing argument about portions of defendant’s audio-taped interview with a doctor that had not been admitted into evidence. Also defendant failed to show the prosecutor’s improper comments constituted plain error in light of the overwhelming evidence against defendant because the prosecutor did not refer to anything specific on the tapes, but merely made an isolated comment that there was more on the tapes that had not been heard. State v. Schmidkunz, 2006 ND 192, 721 N.W.2d 387, 2006 N.D. LEXIS 195 (N.D. 2006).

State did not commit prosecutorial misconduct by asking an arresting officer if defendant was easy to take into custody; the prosecutor’s improper question did not affect the jury’s ability to fairly judge the evidence and did not violate defendant’s due process rights. State v. Kruckenberg, 2008 ND 212, 758 N.W.2d 427, 2008 N.D. LEXIS 228 (N.D. 2008).

—Public Trial.

Defendant’s constitutional public trial guarantee by the trial court’s closure of the courtroom during defendant’s competency hearing was violated because the right attached to a pretrial competency hearing and the trial court did not apply the Waller factors. Even though defendant requested the closure he articulated no overriding interest and the trial court did not tailor the closure to any overriding interest likely to be prejudiced, nor did it consider alternatives to closure. State v. Rogers, 2018 ND 244, 919 N.W.2d 193, 2018 N.D. LEXIS 252 (N.D. 2018).

In a case in which defendant was found guilty of gross sexual imposition, the district court’s actions in restricting ingress and egress for a limited period to minimize disruptions during the child victim’s testimony did not constitute a closure because it was a reasonable time and manner limitation within the district court’s managerial authority. State v. Walbert, 2021 ND 49, 956 N.W.2d 384, 2021 N.D. LEXIS 42 (N.D. 2021).

—Right to Be Advised of Charges

In a criminal case, as N.D.R.Crim.P. 12(b)(3) required defendant to file a motion before trial regarding the State’s failure to file an information, his failure to do so waived the issue on appeal, and defendant did not provide “just cause” for his failure to raise the issue pre-trial. And to the extent the State’s failure to file an information was error, the error was harmless because it did not prejudice defendant in that the information would not have provided him with any knowledge he did not already have in advance of trial. State v. Bethke, 2009 ND 47, 763 N.W.2d 492, 2009 N.D. LEXIS 56 (N.D. 2009).

—Seizure of Property.

The taking possession of personal property and premises used in violation of the state prohibition law by the sheriff or other officer of the court and the enjoining of interference with the officer by the owner of said premises does not violate the latter’s rights by taking property without due process of law. State v. Markuson, 7 N.D. 155, 73 N.W. 82, 1897 N.D. LEXIS 53 (N.D. 1897).

The statute which directed the seizure and retention of property alleged to be used as a bawdyhouse, if the seizure was without notice and without a hearing to determine whether such place was a nuisance in fact, was unconstitutional as the taking of property without due process, the violation of the security of persons in their own houses, and as an unreasonable seizure. State ex rel. Herigstad v. McCray, 48 N.D. 625, 186 N.W. 280, 1921 N.D. LEXIS 138 (N.D. 1921).

—Sentence Enhancement Based on Prior Conviction.

When prior guilty pleas are offered for enhancement purposes in criminal proceedings, collateral attacks on such pleas are limited to an inquiry into whether there was a valid waiver of the right to counsel. State v. Mund, 1999 ND 90, 593 N.W.2d 760, 1999 N.D. LEXIS 120 (N.D. 1999).

DUI defendant’s challenge to sentence enhancement based on a prior uncounseled DUI guilty plea in which he alleged that the original sentencing court failed to advise him that the conviction could be used as enhancement in subsequent criminal proceedings was an improper collateral attack on the prior guilty plea; defendant stipulated he had signed the waiver of attorney form in the earlier proceeding and he failed to provide any reason why his waiver of his right to counsel was deficient. State v. Mund, 1999 ND 90, 593 N.W.2d 760, 1999 N.D. LEXIS 120 (N.D. 1999).

—Strict Liability Crimes.

The state has the power to enact legislation creating strict liability crimes, including felonies; strict liability crimes do not violate due process of law requirements of the federal and state constitutions. State v. McDowell, 312 N.W.2d 301, 1981 N.D. LEXIS 403 (N.D. 1981), cert. denied, 459 U.S. 981, 103 S. Ct. 318, 74 L. Ed. 2d 294, 1982 U.S. LEXIS 4199 (U.S. 1982); State v. Rippley, 319 N.W.2d 129, 1982 N.D. LEXIS 273 (N.D. 1982); State v. Kainz, 321 N.W.2d 478, 1982 N.D. LEXIS 299 (N.D. 1982).

—Suppression of Evidence.

In prosecution for driving under the influence of intoxicants, erasure of the defendant’s videotaped performance of physical test did not constitute suppression of apparent exculpatory evidence resulting in a violation of due process, where the defense attorney’s affidavit did not establish that it should have been apparent to the prosecution that the tape was material evidence favorable to the defendant prior to its erasure, notice was not given to the prosecution until the erasure was discovered, and the defendant was found guilty in municipal court where the videotape was part of the record upon which the court found the defendant guilty. City of Bismarck v. Bauer, 409 N.W.2d 90, 1987 N.D. LEXIS 355 (N.D. 1987).

—Transfer of Prisoners.

Prisoners convicted and sentenced to prison in this state may not be constitutionally transferred to a prison in another state, except in emergency situations, without compliance with minimum procedural due process standards of notice and hearing. State ex rel. Olson v. Maxwell, 259 N.W.2d 621, 1977 N.D. LEXIS 192 (N.D. 1977).

—Vagueness of Statute.

Where defendant parked car in middle of intersection in residential area at two a.m. and proceeded to make noise, and was convicted under former N.D.C.C. § 5-01-05.3 of “disturbing the public peace”, statute was not void for vagueness since requisite of definiteness is met if meaning of statute is fairly ascertainable by reference to similar statutes, or to common law. State v. Woodworth, 234 N.W.2d 243, 1975 N.D. LEXIS 127 (N.D. 1975).

Words “habitually” and “without justification”, in N.D.C.C. § 27-20-02, dealing with truancy from school, are not unconstitutionally vague. In Interest of B., 287 N.W.2d 462, 1980 N.D. LEXIS 190 (N.D. 1980).

In order to survive a vagueness challenge, a statute must meet two requirements: (1) it must provide adequate warning as to the conduct proscribed, and (2) it must establish minimum guidelines to govern law enforcement. State v. Schwalk, 430 N.W.2d 317, 1988 N.D. LEXIS 199 (N.D. 1988).

A criminal statute is not unconstitutionally vague merely because it does not specifically designate various different means by which a crime is committed. Shopkeepers can know, by reading statute, that they cannot sell a stove or a refrigerator or a television set or a lawnmower. Many sections of prohibited commodities list use terms that are understandable to judges, juries, shopkeepers, and police officers. It cannot be said, therefore, that statute is vague in all its applications. Best Prods. Co. v. Spaeth, 461 N.W.2d 91, 1990 N.D. LEXIS 194 (N.D. 1990).

As applied to appellant’s conduct, N.D.C.C. § 62.1-02-01(1)(c) was not vague as a reasonable person would have known that he was in constructive possession of firearms kept in his house, and appellant had been committed to a hospital by a court. Hill v. D.D. (In the Interest of D.D.), 2018 ND 201, 916 N.W.2d 765, 2018 N.D. LEXIS 203 (N.D. 2018).

Civil Remedies and Proceedings.

—In General.

Due process of law does not require a proceeding according to the common law or according to any particular form, and procedural matters are subject to legislative regulation provided the essential elements of due process are preserved. Kessler v. Thompson, 75 N.W.2d 172 (N.D. 1956), decided prior to the enactment of Art. I, § 16 of the N.D. Const.

Due process requires notice and a meaningful opportunity for a hearing appropriate to the nature of the case. Powell v. Hjelle, 408 N.W.2d 737, 1987 N.D. LEXIS 357 (N.D. 1987).

In an administrative context, to determine what process is due the supreme court must consider a number of factors, including the private interest that will be affected by the official action, the potential for governmental error, and the magnitude of the state’s interest. Powell v. Hjelle, 408 N.W.2d 737, 1987 N.D. LEXIS 357 (N.D. 1987).

The fundamental requirements of due process are notice of contemplated action and the opportunity to be heard. Howes v. North Dakota Workers Compensation Bureau, 429 N.W.2d 730, 1988 N.D. LEXIS 259 (N.D. 1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1126, 103 L. Ed. 2d 189, 1989 U.S. LEXIS 904 (U.S. 1989).

—Administrative Hearing.

A person before an administrative agency cannot demand due process equivalent to that followed in courts, but a person is entitled to procedural fairness in an administrative hearing. Howes v. North Dakota Workers Compensation Bureau, 429 N.W.2d 730, 1988 N.D. LEXIS 259 (N.D. 1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1126, 103 L. Ed. 2d 189, 1989 U.S. LEXIS 904 (U.S. 1989).

—Arbitration Statute.

The act relating to the settlement of a cause of action for personal injuries does not deny liberty of contract nor deprive party liable of property without due process of law. Peterson v. Panovitz, 62 N.D. 328, 243 N.W. 798, 1932 N.D. LEXIS 183 (N.D. 1932).

Compulsory arbitration of disputes arising out of highway construction and repair contracts, as provided by N.D.C.C. § 24-02-26, is not denial of due process. Hjelle v. Sornsin Constr. Co., 173 N.W.2d 431, 1969 N.D. LEXIS 66 (N.D. 1969).

—Driver’s License.

A driver’s license is a protectable property interest to which the guarantee of procedural due process applies. Powell v. Hjelle, 408 N.W.2d 737, 1987 N.D. LEXIS 357 (N.D. 1987).

—Foreclosure Proceedings.

A mortgagor may grant a power of sale in trust for the benefit of both parties to the mortgage, and its proper execution under the statutes relating to foreclosure by advertisement does not deprive the mortgagor of his property without due process of law. Robinson v. McKinney, 29 N.W. 658, 4 Dakota 290, 1886 Dakota LEXIS 10 (Dakota 1886).

A default judgment foreclosing a mortgage in an action in which an insane mortgagor was represented by a guardian ad litem was obtained by due process of law. Walrod v. Nelson, 54 N.D. 753, 210 N.W. 525, 1926 N.D. LEXIS 75 (N.D. 1926).

—Grandparental Visitation.

The statutory presumption created by N.D.C.C. § 14-09-05.1 that grandparental visitation is in the best interests of the children violates parents’ fundamental liberty interest in controlling the persons with whom their children may associate and is void. Hoff v. Berg, 1999 ND 115, 595 N.W.2d 285, 1999 N.D. LEXIS 93 (N.D. 1999).

—Guest Statute.

Guest statute is unconstitutional under this section and N.D. Const. art. I, §§ 21 and 22. Johnson v. Hassett, 217 N.W.2d 771, 1974 N.D. LEXIS 225, 1974 N.D. LEXIS 245 (N.D. 1974).

—Handicapped Children’s Education.

Handicapped children are entitled to an educational opportunity equal to that of other children under this section and under art. I, §§ 20 and 21 and art. VIII, §§ 1 and 2 of the state Constitution, as well as under the Equal Protection Clause of the federal Constitution. In Interest of H., 218 N.W.2d 441, 1974 N.D. LEXIS 232 (N.D. 1974).

—Municipal Corporations and Counties.

— —Building Regulations.

The statute granting to cities of certain population the power to regulate the height and size of buildings does not deprive the owner of property without due process of law. City of Bismarck v. Hughes, 53 N.D. 838, 208 N.W. 711, 1926 N.D. LEXIS 40 (N.D. 1926).

— —Industrial Development.

The financing, building, and leasing of a sugar beet processing plant by a municipality as authorized by N.D.C.C. ch. 40-57 was a public purpose designed to promote the general welfare and not a taking of private property without due process of law. Gripentrog v. Wahpeton, 126 N.W.2d 230, 1964 N.D. LEXIS 83 (N.D. 1964).

— —Parking Meters Prohibited.

The initiated measure which prohibits the use and operation of parking meters within the state is not a taking of property in violation of due process of law even though some cities had already installed or ordered such parking meters. City of Fargo v. Sathre, 76 N.D. 341, 36 N.W.2d 39, 1949 N.D. LEXIS 60 (N.D. 1949).

—Improvement Districts.

The power of the state to determine what duties may be performed by local officers, and whether they shall be appointed or elected by the people, was not taken away by the due process clause and the state statute authorizing an appointed drainage board to determine whether a proposed drain will be a public benefit is not invalid under the due process clause of this section. Soliah v. Cormack, 17 N.D. 393, 117 N.W. 125, 1908 N.D. LEXIS 63 (N.D. 1908), aff'd, 222 U.S. 522, 32 S. Ct. 103, 56 L. Ed. 294, 1912 U.S. LEXIS 2205 (U.S. 1912).

In considering the constitutional sufficiency of N.D.C.C. ch. 40-22 concerning improvement districts, an opportunity to be heard with a right of review upon the question of assessments for benefits satisfies the requirements of the due process clause. Fisher v. Minot, 188 N.W.2d 745, 1971 N.D. LEXIS 193 (N.D. 1971).

Notice defects in creating a paving district did not violate due process where the decision to create an assessment district and make improvements did not deprive them of property rights, and there was no constitutional right to notice when a municipality initially decided to construct an improvement. Paving Dist. 476 Grp., SPCM, LLC v. City of Minot, 2017 ND 176, 898 N.W.2d 418, 2017 N.D. LEXIS 167 (N.D. 2017).

—Notice or Process.

In an action to quiet title the publication of summons without containing a description of the land therein, is not a sufficient notice to adverse claimants not specifically named in the summons and does not constitute due process of law. Fenton v. Minnesota Title Ins. & Trust Co., 15 N.D. 365, 109 N.W. 363, 1906 N.D. LEXIS 92 (N.D. 1906).

A nonresident vendee cannot complain of lack of due process where his rights were foreclosed by decree of a court of the state of the situs, quieting title in the vendor and where the vendee personally appeared. Kryger v. Wilson, 242 U.S. 171, 37 S. Ct. 34, 61 L. Ed. 229, 1916 U.S. LEXIS 1546 (U.S. 1916).

In an action in a state court wherein a personal judgment for money is sought the defendant must be brought within the jurisdiction of the court by service of process within the state, or by his voluntary appearance in the action, and a personal judgment rendered without such service or appearance violates the constitutional requirement of due process. Darling & Co. v. Burchard, 69 N.D. 212, 284 N.W. 856, 1939 N.D. LEXIS 144 (N.D. 1939).

Notice to a party whose rights are to be affected by a judicial proceeding, and opportunity to be heard in such proceeding before judgment is rendered therein, are essential elements of due process. Darling & Co. v. Burchard, 69 N.D. 212, 284 N.W. 856, 1939 N.D. LEXIS 144 (N.D. 1939).

Provision of workmen’s compensation act which would have subordinated the lien of the mortgagee to that of the state’s judgment without notice to the mortgagee at the time he accepted his mortgage, that it might be so subordinated, deprived the mortgagee of his property without due process of law. Federal Farm Mortgage Corp. v. Berzel, 69 N.D. 760, 291 N.W. 550, 1940 N.D. LEXIS 205 (N.D. 1940).

Statutory notice given by the board of county commissioners of consideration of a matter at a meeting on a specified date gives the board jurisdiction to act at that meeting, or at a later regular meeting, or at a meeting continued to a definite time and place within a reasonable time without again giving notice; but, if the board desires to reverse or modify action already taken, then due process would require that notice again be given. Southern Valley Grain Dealers Ass'n v. Board of County Comm'rs, 257 N.W.2d 425, 1977 N.D. LEXIS 164 (N.D. 1977).

—Opportunity for a Hearing.

The five- (now ten-) day notice requirement under N.D.C.C. § 39-20-05 is not unreasonable; all that is required is that a written request for a hearing be sent to the highway commissioner within five (now ten) days of the date of the issuance of the temporary operator’s permit, and while a longer period or express ameliorating provisions for untimely filings would provide greater access, the five- (now ten-) day limit does not deprive parties of a meaningful opportunity for a hearing. Powell v. Hjelle, 408 N.W.2d 737, 1987 N.D. LEXIS 357 (N.D. 1987).

District court was directed to hold an evidentiary hearing on remand because property owners' objections to the referee's partition report were sufficient to compel the district court to hold an evidentiary hearing; the owners submitted evidence challenging the factual findings and conclusions of the refere, and requested a trial, and the submitted evidence sufficiently placed the referee's report in legitimate dispute. Beach Railport, LLC v. Michels, 2017 ND 240, 903 N.W.2d 88, 2017 N.D. LEXIS 247 (N.D. 2017).

—Public Officers and Employees.

— —Anti-Corruption Measure.

A statute which bars legislators as a class from doing business with the state or its subdivisions except in limited amounts bears a relationship to the public welfare and does not violate this section of the Constitution. Lindberg v. Benson, 70 N.W.2d 42, 1955 N.D. LEXIS 107 (N.D. 1955).

— —Sheriff’s Liability.

A law imposing liability on a sheriff for failure to make return of an execution is not a deprivation of life, liberty, or property without due process of law. Lee v. Dolan, 34 N.D. 449, 158 N.W. 1007, 1916 N.D. LEXIS 42 (N.D. 1916).

—Public Welfare.

Statute requiring motorcycle operators and passengers to wear crash helmets was not unconstitutional on theory that it affected only operator’s or passenger’s welfare and not the public welfare. State v. Odegaard, 165 N.W.2d 677, 1969 N.D. LEXIS 116 (N.D. 1969).

—Real Property.

Landowners due process claim failed because, although the landowners were granted a conditional use permit (CUP), the interest which the landowners received was a one-year CUP, on which they did not act. Thus, the landowners did not have a protected property interest when the township enacted and amended zoning ordinances but merely an expectation of use at some point in the future. Arnegard v. Arnegard Twp., 2018 ND 80, 908 N.W.2d 737, 2018 N.D. LEXIS 85 (N.D. 2018).

—Redemption Statute.

A statute which provides that a notice of redemption shall be recorded rather than filed is not invalid though it applies to mortgages executed before its enactment, on the ground that it deprives the mortgagor of his property without due process of law. Heitsch v. Minneapolis Threshing Mach. Co., 29 N.D. 94, 150 N.W. 457, 1914 N.D. LEXIS 13 (N.D. 1914).

The statute which extended the period of redemption from real estate mortgage foreclosure sale deprived the holder of the mortgage executed prior to the passage of the statute of property without due process. State ex rel. Cleveringa v. Klein, 63 N.D. 514, 249 N.W. 118, 1933 N.D. LEXIS 203 (N.D. 1933).

—Regulation of Business and Professions.

— —Banks and Banking.

The statute which empowers the guaranty fund commission to pass upon and finally allow or reject claims of alleged depositors against the guaranty fund does not deprive claimants against the fund of their property without due process of law. Standard Oil Co. v. Engel, 55 N.D. 163, 212 N.W. 822, 1927 N.D. LEXIS 18 (N.D. 1927).

The statute providing for adjudication of the insolvency of state banks and for administration of their affairs does not deny due process by providing for making the corporation the sole party defendant. Baird v. Rask, 60 N.D. 432, 234 N.W. 651, 1931 N.D. LEXIS 184 (N.D. 1931).

— —Dairy Industry.

The statute giving the dairy commissioner power to revoke the license of a cream station operator on evidence that the licensee has violated any of the existing dairy statutes of the state does not deprive such licensee of liberty or property without due process of law. Cofman v. Ousterhous, 40 N.D. 390, 168 N.W. 826, 1918 N.D. LEXIS 91 (N.D. 1918).

Statute prohibiting trade practices in the dairy industry, such as the furnishing of advertising, payments for storage or display of dairy products, and loans from wholesaler to retailers was unconstitutional as violative of the due process provisions of this section. Fairmont Foods Co. v. Burgum, 81 N.W.2d 639, 1957 N.D. LEXIS 104 (N.D. 1957).

— —Destruction of Diseased Livestock.

The statute giving the state livestock sanitary board summary power to destroy animals infected with the disease of dourine does not violate the rights of the owners to due process of law. Neer v. State Live Stock Sanitary, 40 N.D. 340, 168 N.W. 601, 1918 N.D. LEXIS 70 (N.D. 1918).

— —Foreign Corporations.

The statute which requires any foreign corporation to dispose of real estate capable of agricultural use within ten years or it will escheat to the state, is not a taking in violation of the due process of law. Asbury Hosp. v. Cass County, 72 N.D. 359, 7 N.W.2d 438, 1943 N.D. LEXIS 75 (N.D. 1943); Asbury Hosp. v. Cass County, 73 N.D. 469, 16 N.W.2d 523, 1944 N.D. LEXIS 83 (N.D. 1944), modified, 326 U.S. 207, 66 S. Ct. 61, 90 L. Ed. 6, 1945 U.S. LEXIS 1533 (U.S. 1945).

— —Hail Insurance.

The act requiring a hail insurance company to act promptly on an application and to make the insurance effective after 24 hours from the hour of application, unless the insurer gives notice of rejection, does not deprive the insurer of liberty of contract without due process of law under either the federal or state Constitution. Wanberg v. National Union Fire Ins. Co., 46 N.D. 369, 179 N.W. 666, 1920 N.D. LEXIS 23 (N.D. 1920), aff'd, 260 U.S. 71, 43 S. Ct. 32, 67 L. Ed. 136, 1922 U.S. LEXIS 2341 (U.S. 1922).

— —Hours of Work for Females.

Regulating the hours of labor for females is within the state’s police power, and does not violate the due process nor equal protection clauses of the state or federal Constitution. State v. Ehr, 57 N.D. 310, 221 N.W. 883, 1928 N.D. LEXIS 129 (N.D. 1928).

— —Public Service Commission.

The board of railroad commissioners, now public service commission, possesses only such authority as is granted by the act providing for the regulation of public utilities, and the exercise of such authority must be consonant with due process of law. State ex rel. Lemke v. Chicago & N.W. Ry., 46 N.D. 313, 179 N.W. 378, 1920 N.D. LEXIS 18 (N.D. 1920).

— —Railroads.

The business of operating a railroad is properly classed as work of a hazardous nature and may be placed in a class by itself for the purpose of regulation without violating the due process clause of this section. Gunn v. Minneapolis S. P. & S. S. M. Ry., 34 N.D. 418, 158 N.W. 1004, 1916 N.D. LEXIS 41 (N.D. 1916).

The public service commission may not, under the guise of rules and regulations, take the property of a carrier by compelling it to provide services and facilities no longer essential to public convenience and necessity. Chicago, M., St. Chicago, M., St. P. & Pac. R.R. v. Pub. Serv. Comm'n, 98 N.W.2d 101 (N.D. 1959).

— —Rates and Charges.

Chapter 126, S.L. 1891, regulating public warehouses and prescribing the maximum rates for storing and handling grain, and requiring insurance at the expense of the warehouseman, did not deprive the owner of his property without due process, though applied to an owner whose principal business was storing his own grain. State ex rel. Stoeser v. Brass, 2 N.D. 482, 52 N.W. 408, 1892 N.D. LEXIS 37 (N.D. 1892), aff'd, 153 U.S. 391, 14 S. Ct. 857, 38 L. Ed. 757, 1894 U.S. LEXIS 2192 (U.S. 1894).

The statute prescribing maximum coal rates for the transportation by common carriers of coal in carload lots within the state does not violate the due process clause. State ex rel. McCue v. Northern Pac. Ry., 19 N.D. 45, 120 N.W. 869, 1909 N.D. LEXIS 63 (N.D. 1909), aff'd, 216 U.S. 582, 30 S. Ct. 441, 54 L. Ed. 625, 1910 U.S. LEXIS 1925 (U.S. 1910).

The maximum intrastate rates fixed by S.L. 1907, ch. 51, for the transportation of coal in carload lots after use thereof proved to be confiscatory and to deprive the carrier of property without due process. Northern P. R. Co. v. North Dakota, 236 U.S. 585, 35 S. Ct. 429, 59 L. Ed. 735, 1915 U.S. LEXIS 1728 (U.S. 1915).

— —Sale of Food.

The prohibition of the sale of lard otherwise than in bulk, unless put up in one, three, or five-pound packages, net weight, or some multiple thereof, does not deny due process. State v. Armour & Co., 27 N.D. 177, 145 N.W. 1033, 1913 N.D. LEXIS 31 (N.D. 1913), aff'd, 240 U.S. 510, 36 S. Ct. 440, 60 L. Ed. 771, 1916 U.S. LEXIS 1477 (U.S. 1916).

— —Sale of Goods in General.

Chapter 238, S.L. 1919, providing that any person purchasing for his own use any gas or oil-burning tractor, gas or steam engine, harvesting or threshing machinery, shall have a reasonable time after delivery for inspection and, if the machinery does not prove reasonably fit for the intended purpose, the purchaser may rescind, does not violate the due process nor equal protection clauses and does not infringe upon the liberty of contract. Jackson v. Advance-Rumely Thresher Co., 62 N.D. 143, 241 N.W. 722, 1932 N.D. LEXIS 159 (N.D.), aff'd, 287 U.S. 283, 53 S. Ct. 133, 77 L. Ed. 306, 1932 U.S. LEXIS 18 (U.S. 1932).

Due process of the law is not denied to manufacturers and sellers of mixed paints containing ingredients other than pure linseed oil, pure carbonate of lead, oxide of zinc, turpentine, Japan dryer, and pure colors, by a North Dakota statute which makes the manufacture of such paints a misdemeanor unless the label shows the constituent ingredients and the quantity of each, and such persons are not deprived of their property without due process. Heath & Milligan Mfg. Co. v. Worst, 207 U.S. 338, 28 S. Ct. 114, 52 L. Ed. 236, 1907 U.S. LEXIS 1228 (U.S. 1907).

Chapter 238, S.L. 1919, giving a buyer of farm machinery a reasonable time to discover its fitness for the intended purpose and declaring contrary provisions in a contract void, does not violate the due process clause. Advance-Rumely Thresher Co. v. Jackson, 287 U.S. 283, 53 S. Ct. 133, 77 L. Ed. 306, 1932 U.S. LEXIS 18 (U.S. 1932).

— —Sale of Snuff.

Chapter 271, S.L. 1913, the Anti-Snuff Act, which defined snuff and provided that ordinary plug, fine cut or long cut chewing tobacco, as commonly known in the trade, should not be included in the definition, was held to be constitutional and not violative of the due process clause. State v. Olson, 26 N.D. 304, 144 N.W. 661, 1913 N.D. LEXIS 70 (N.D. 1913), writ of error dismissed, 245 U.S. 676, 38 S. Ct. 13, 62 L. Ed. 542, 1917 U.S. LEXIS 1841 (U.S. 1917).

—Retrospective, Validating and Curative Laws.

A statute providing for the payment of outstanding warrants issued by a county drainage board for expenses incurred prior to the establishment of a drain where the drain has been established and thereafter abandoned, or where construction was postponed, is not, when applied retrospectively, a denial of due process. Walstad v. Dawson, 64 N.D. 333, 252 N.W. 64, 1934 N.D. LEXIS 204 (N.D. 1934).

A statute which extended the time within which a certificate of tax sale would remain valid from six years to ten years after the date of the certificate did not impair any right secured to the landowner by contract nor destroy any vested rights in violation of the prohibition against impairing the obligations of contracts or taking property without due process. Baird v. Chamberland, 70 N.D. 109, 292 N.W. 219, 1940 N.D. LEXIS 152 (N.D. 1940).

Chapter 225, S.L. 1939, which declared void taxes based on valuations in excess of the full and true value of property, was not unconstitutional as impairing obligations owing to holders of securities issued by the state or as depriving them of their property without due process of law. Werner v. Riebe, 70 N.D. 533, 296 N.W. 422, 1941 N.D. LEXIS 196 (N.D. 1941); Vaagen v. Judt, 70 N.D. 556, 296 N.W. 519, 1941 N.D. LEXIS 200 (N.D. 1941).

An act validating contracts previously made by county commissioners for transferring onto proper records from the records of an old county, deeds relating to real estate in a new county formed from the old county does not deprive the county of its property without due process. Erskine v. Steele County, 87 F. 630, 1898 U.S. App. LEXIS 2730 (C.C.D.N.D. 1898), aff'd, 98 F. 215, 1899 U.S. App. LEXIS 2727 (8th Cir. N.D. 1899).

—Specific Performance.

Where only relief demanded in the action was for specific performance of an option to purchase real estate contained in a lease, the only relief demanded was equitable in nature and defendant had no right to jury trial notwithstanding the existence of some factual questions in the action. Northwestern Bell Tel. Co. v. Cowger, 303 N.W.2d 791, 1981 N.D. LEXIS 266 (N.D. 1981).

—State Bonds.

The calling of state bonds prior to their maturity was not unconstitutional on the ground that it deprived the bondholder of his property without due process, where the statute under which the bonds were issued and which became a part of the contract authorized the calling of bonds. Catholic Order of Foresters v. State, 67 N.D. 228, 271 N.W. 670, 1937 N.D. LEXIS 76 (N.D.), cert. denied, 301 U.S. 665, 57 S. Ct. 796, 81 L. Ed. 1331, 1937 U.S. LEXIS 309 (U.S. 1937).

—State Enterprises.

The issuing of bonds in aid of public enterprises by the proper authority of the state does not deny due process of law. Green v. Frazier, 44 N.D. 395, 176 N.W. 11, 1920 N.D. LEXIS 93 (N.D.), aff'd, 253 U.S. 233, 40 S. Ct. 499, 64 L. Ed. 878, 1920 U.S. LEXIS 1418 (U.S. 1920).

The levying of taxes for the North Dakota mill and elevator association does not take property without due process of law on the ground that it is done for a private purpose. Green v. Frazier, 44 N.D. 395, 176 N.W. 11, 1920 N.D. LEXIS 93 (N.D.), aff'd, 253 U.S. 233, 40 S. Ct. 499, 64 L. Ed. 878, 1920 U.S. LEXIS 1418 (U.S. 1920).

The liberty guaranteed by this section of the Constitution does not prohibit the establishment of a state fire and tornado fund. Minot Special Sch. Dist. v. Olsness, 53 N.D. 683, 208 N.W. 968, 1926 N.D. LEXIS 41 (N.D. 1926).

The due process clause is not violated by the act creating the Bank of North Dakota, on the ground that taxes are imposed for private purposes. Green v. Frazier, 253 U.S. 233, 40 S. Ct. 499, 64 L. Ed. 878, 1920 U.S. LEXIS 1418 (U.S. 1920).

The Industrial Commission Act does not authorize the taking of property without due process of law on the ground that taxes are imposed for private purposes. Green v. Frazier, 253 U.S. 233, 40 S. Ct. 499, 64 L. Ed. 878, 1920 U.S. LEXIS 1418 (U.S. 1920).

Under the act authorizing the issuance of bonds to finance the Bank of North Dakota, the property of taxpayers is not taken without due process of law on the ground that the taxes are imposed for private purposes. Green v. Frazier, 253 U.S. 233, 40 S. Ct. 499, 64 L. Ed. 878, 1920 U.S. LEXIS 1418 (U.S. 1920).

—Taxes.

— —In General.

A state cannot impose taxes for merely private purposes. Menz v. Coyle, 117 N.W.2d 290, 1962 N.D. LEXIS 91 (N.D. 1962).

Imposing a reasonable tax upon those who file actions in the district courts under former N.D.C.C. § 11-17-04 (now N.D.C.C. § 27-05.2-03) and upon those who file petitions in the county courts under N.D.C.C. § 27-07-40, for purposes of legal research and improvement of the judicial system, is not depriving persons using the courts and paying such tax of property without due process of law. Menz v. Coyle, 117 N.W.2d 290, 1962 N.D. LEXIS 91 (N.D. 1962).

— —Excise Tax on Foreign Corporations.

The imposition of a special excise tax on corporate stock of foreign corporations by S.L. 1919, ch. 222, § 1, was an unwarranted interference with interstate commerce, and a violation of the due process of law clause. Wallace v. Hines, 253 U.S. 66, 40 S. Ct. 435, 64 L. Ed. 782, 1920 U.S. LEXIS 1476 (U.S. 1920).

Chapter 222, S.L. 1919, which imposed a special excise tax upon foreign corporations doing business in the state, and which contained a proviso that in case of a railway company or other public utility corporation having lines partly within and partly without the state the tax should be computed by using a ratio fixing the value within the state to the value of the entire lines within and without the state, was held unconstitutional as violative of the interstate commerce clause and the due process clause. Davis v. Wallace, 257 U.S. 478, 42 S. Ct. 164, 66 L. Ed. 325, 1922 U.S. LEXIS 2427 (U.S. 1922).

— —Hail Indemnity Tax Lien.

The provision of a statute that the lien of a hail indemnity tax shall be superior to all mortgages executed subsequent to the approval of the act does not deprive persons of property without due process claiming under mortgages executed and delivered subsequent to the passage and approval of the statute. Federal Farm Mtg. Corp. v. Falk, 67 N.D. 154, 270 N.W. 885 (1936).

A statute making the lien of the hail indemnity tax superior to all mortgages executed after approval of the act, as applied to such a mortgage, is not unconstitutional as taking property without due process of law. Federal Farm Mortgage Corp. v. Falk, 67 N.D. 341, 272 N.W. 286, 1937 N.D. LEXIS 87 (N.D.), cert. denied, 302 U.S. 704, 58 S. Ct. 24, 82 L. Ed. 544, 1937 U.S. LEXIS 791 (U.S. 1937).

— —Income Tax.

The statute levying the state income tax at graduated rates which operates equally and uniformly on all in like circumstances does not violate the requirements of uniformity of taxation, and equal protection or due process. State ex rel. Haggart v. Nichols, 66 N.D. 355, 265 N.W. 859, 1936 N.D. LEXIS 176 (N.D. 1936).

— —Inheritance Tax.

An alien, in the absence of permissive legislation, has never been allowed, as against the sovereign state, to take by descent or even by will, and the statute imposing a tax of 25% on the inheritance of nonresident aliens is valid. Moody v. Hagen, 36 N.D. 471, 162 N.W. 704, 1917 N.D. LEXIS 201 (N.D.), aff'd, 245 U.S. 633, 38 S. Ct. 133, 62 L. Ed. 522, 1917 U.S. LEXIS 1712 (U.S. 1917); Skarderud v. Tax Com., 245 U.S. 633, 38 S. Ct. 133, 62 L. Ed. 522, 1917 U.S. LEXIS 1712 (U.S. 1917).

— —Levy, Assessment, and Valuation.

A statute which gave the state tax commission power to assess all light, heat, and power companies doing business within the state was unconstitutional because no opportunity was afforded for a hearing for the property owner to be assessed. State ex rel. Miller v. Leech, 33 N.D. 513, 157 N.W. 492, 1916 N.D. LEXIS 107 (N.D. 1916).

A statute which provides that every domestic corporation is to be assessed for the amount which its paid-up stock exceeds the aggregate of the values of the real and personal property owned, and the amount of the total indebtedness owed, by such corporation does not violate the due process clause of the constitution. Grand Forks County v. Cream of Wheat Co., 41 N.D. 330, 170 N.W. 863 (1918), aff’d, 253 U.S. 325, 40 S. Ct. 558, 64 L. Ed. 931 (1920)

Chapter 251, S.L. 1933, which provided an annual tax of 12% on the gross income of power companies in lieu of all other taxes, except motor vehicle license and fuel taxes and special assessments, that amount to be determined by the tax commissioner without notice and hearing to the companies, was void as a violation of the due process clause of the state and federal Constitutions. Montana-Dakota Power Co. v. Weeks, 8 F. Supp. 935, 1934 U.S. Dist. LEXIS 1520 (D.N.D. 1934).

Due process does not require each taxpayer to be individually consulted relative to the levying of a tax of a general nature upon his property. Marks v. Mandan, 70 N.D. 474, 296 N.W. 39, 1941 N.D. LEXIS 191 (N.D. 1941).

—Termination of Parental Rights

Juvenile court did not abuse its discretion by denying a mother’s request to postpone a parental rights termination proceeding so that she could appear in person at the hearing. The mother was given a meaningful opportunity to be heard through her appearance by telephone at the termination hearing while she was in prison in another state. In the Interest of D.C.S.H.C., 2007 ND 102, 733 N.W.2d 902, 2007 N.D. LEXIS 93 (N.D. 2007).

In a termination of parental rights case, the alleged due process violation - the application of the expedited appeal procedures under N.D.R.App.P. 2.2 - did not result in an unacceptable risk of an erroneous deprivation of the mother’s interests in her children because she did not cite any negative effect resulting in the application of Rule 2.2, she did not assert that her present appeal was deficient, and she did not show any risk of an erroneous deprivation of her interests through the procedures used. K.J. v. R.J., 2010 ND 46, 779 N.W.2d 635, 2010 N.D. LEXIS 40 (N.D. 2010).

Juvenile court properly adopted judicial referee's order and terminated a father's parental rights because, the guardian ad litem's failure to interview the father did not violate his constitutional right to due process and was harmless error where the father testified at trial and his counsel had opportunity to cross-examine witnesses, and the child's placement in continuous foster care for 774 consecutive days and nights was sufficient for termination of the father's parental rights. N.A. v. N.A., 2016 ND 91, 879 N.W.2d 82, 2016 N.D. LEXIS 92 (N.D. 2016).

—Vagueness of Statute.

In order to invalidate entire statute for vagueness, statute must be vague in all its applications. Best Prods. Co. v. Spaeth, 461 N.W.2d 91, 1990 N.D. LEXIS 194 (N.D. 1990).

City ordinance prohibiting excessive, continuous, or untimely dog barking did not violate defendant’s substantive right to due process as the ordinance provided minimum guidelines for a reasonable police officer, judge, or jury charged with its enforcement and provided a reasonable person with adequate and fair warning of the prohibited conduct and defendant’s failure to prevent his dogs from barking excessively, continuously, or at the wrong time did not reach a substantial amount of constitutionally protected conduct. City of Belfield v. Kilkenny, 2007 ND 44, 729 N.W.2d 120, 2007 N.D. LEXIS 45 (N.D. 2007).

—Workers Compensation.

An evidentiary hearing before termination of workers’ compensation benefits would unduly burden the governmental interest because medical records will usually resolve whether the claimant can work. Rather, opportunity to respond should be limited to a written submission as an initial check against an erroneous decision. Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770, 1988 N.D. LEXIS 35 (N.D. 1988).

The workers’ compensation bureau’s procedures denied the claimant due process, where the claimant was not given a pretermination notice that his disability benefits would be terminated, a summary of the medical evidence supporting termination, and an opportunity to respond. Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770, 1988 N.D. LEXIS 35 (N.D. 1988).

The workers’ compensation bureau’s practice of securing medical opinion in the form of written responses to questions posed by the bureau did not deprive claimant of his right to due process since claimant was given an opportunity to be heard and to subpoena and cross-examine the responding doctor, albeit at the claimant’s own expense. Howes v. North Dakota Workers Compensation Bureau, 429 N.W.2d 730, 1988 N.D. LEXIS 259 (N.D. 1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1126, 103 L. Ed. 2d 189, 1989 U.S. LEXIS 904 (U.S. 1989).

The continuing right to disability benefits under the Workers Compensation Act is a “property” right protected by the Due Process Clause. Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770, 1988 N.D. LEXIS 35 (N.D. 1988).

Voluntariness of Statement.

Defendant’s statements were voluntary and his Miranda waiver was not coerced because he was given ample time to contact an attorney, he decided to fill out and sign the statement form, and he never requested or attempted to leave. The trial court also determined that defendant understood his rights, agreed to talk, and was not coerced after viewing a video of the interview. State v. Hansford, 2019 ND 52, 923 N.W.2d 113, 2019 N.D. LEXIS 46 (N.D. 2019).

Waiver.

Defendant did not knowingly and intelligently waive counsel, nor did defendant's conduct amount to the functional equivalent of a waiver, because, when defendant was allowed to seek a second appointed counsel after defendant's first appointed counsel withdrew, defendant (1) should have been warned before making a second request for counsel that this could be considered the functional equivalent of a waiver, and (2) was not given the choice of having the first appointed counsel represent defendant or of proceeding pro se. State v. Yost, 2014 ND 209, 855 N.W.2d 829, 2014 N.D. LEXIS 213 (N.D. 2014).

In an action for gross sexual imposition, burglary, terrorizing, and domestic violence assault, defendant knowingly, intelligently, and voluntarily waived his right to counsel after acknowledging to the court that he understood the disadvantages of proceeding without an attorney. State v. Rodriguez, 2020 ND 261, 952 N.W.2d 233, 2020 N.D. LEXIS 259 (N.D. 2020).

Collateral References.

Constitutional Law 256-272; Criminal Law 161-204, 393, 516-538, 573-577, 635, 636, 641-641.13, 662; Witnesses 2.

21 Am. Jur. 2d, Criminal Law, §§ 903-908, 914-1216.

16C C.J.S. Constitutional Law, §§ 1434-1721; 16D C.J.S. Constitutional Law, §§ 1723-2145; 22 C.J.S. Criminal Law, §§ 265-329; 22A C.J.S. Criminal Law, §§ 827-867, 902-914; 23 C.J.S. Criminal Law, §§ 1221-1294, 1514-1520; 23A C.J.S. Criminal Law, §§ 1561-1601.

Suppression before indictment or trial of confession unlawfully obtained, 1 A.L.R.2d 1012.

Duty to advise as to right to assistance of counsel, 3 A.L.R.2d 1003.

Use in subsequent prosecution of self-incriminating testimony given without invoking privilege, 5 A.L.R.2d 1404.

Former jeopardy as ground for habeas corpus, 8 A.L.R.2d 285.

Pretrial requirement that suspect or accused wear or try on particular apparel as violating constitutional rights, 18 A.L.R.2d 796.

Right of witness to refuse to answer, on ground of self incrimination as to membership in, or connection with party, society, or similar organization or group, 19 A.L.R.2d 388.

Absence of accused at return of verdict in felony case, 23 A.L.R.2d 456.

Conviction or acquittal in criminal prosecution as bar to action for seizure, condemnation, or forfeiture of property, 27 A.L.R.2d 1137.

Right of witness to claim privilege against self incrimination on subsequent trial after testifying to same matter before grand jury, 36 A.L.R.2d 1403.

Acquittal on homicide charge as bar to subsequent prosecution for assault and battery or vice versa, 37 A.L.R.2d 1068.

Conviction or acquittal in criminal prosecution as bar to action for statutory damages or penalty, 42 A.L.R.2d 634.

Uniform Act to Secure the Attendance of Witnesses from Without a State in criminal proceedings, 44 A.L.R.2d 732.

Discharge of accused for holding him excessive time without trial as bar to subsequent prosecution for same offense, 50 A.L.R.2d 943.

Conviction or acquittal or attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.

Right to and appointment of counsel in juvenile court proceedings, 60 A.L.R.2d 691.

Conviction of lesser offense as bar to prosecution for greater on new trial, 61 A.L.R.2d 1141.

Conviction from which appeal is pending as bar to another prosecution for same offense under rule against double jeopardy, 61 A.L.R.2d 1224.

What constitutes accused’s consent to court’s withdrawal of case from jury so as to constitute waiver of plea of former jeopardy, 63 A.L.R.2d 782.

Power to try, in his absence, one charged with misdemeanor, 68 A.L.R.2d 638.

Testifying in civil proceeding as waiver of privilege against self-incrimination, 72 A.L.R.2d 830.

Incompetency of counsel chosen by accused as affecting validity of conviction, 74 A.L.R.2d 1390.

Plea of guilty as basis of claim of double jeopardy in attempted subsequent prosecution for same offense, 75 A.L.R.2d 683.

Propriety, and effect as double jeopardy, court’s grant of new trial on own motion in criminal case, 85 A.L.R.2d 486.

Conviction or acquittal of one offense, in court having no jurisdiction to try offense arising out of same set of facts, later charged in another court, as putting accused in jeopardy of latter offense, 4 A.L.R.3d 874.

Accused’s right to assistance of counsel at or prior to arraignment, 5 A.L.R.3d 1269.

Scope and extent, and remedy or sanctions for infringement, of accused’s right to communicate with his attorney, 5 A.L.R.3d 1360.

Subsequent trial, after stopping former trial to try accused for greater offense, as constituting double jeopardy, 6 A.L.R.3d 905.

Comment note: Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation, 10 A.L.R.3d 1054.

Circumstances giving rise to conflict of interest between or among criminal codefendants precluding representation by same counsel, 34 A.L.R.3d 470.

Privilege against self-incrimination as ground for refusal to produce noncorporate documents in possession of person asserting privilege but owned by another, 37 A.L.R.3d 1373.

Right to assistance of counsel at proceedings to revoke probation, 44 A.L.R.3d 306.

Validity and construction of statute requiring defendant in criminal case to disclose matter as to alibi defense, 45 A.L.R.3d 958.

When does jeopardy attach in nonjury trial?, 49 A.L.R.3d 1039.

Right of member, officer, agent, or director of private corporation or unincorporated association to assert personal privilege against self-incrimination with respect to production of corporate books or records, 52 A.L.R.3d 636.

Use in disbarment proceeding of testimony given by attorney in criminal proceeding under grant of immunity, 62 A.L.R.3d 1145.

Indigent accused’s right to choose particular counsel appointed to assist him, 66 A.L.R.3d 996.

Acquittal in criminal proceeding as precluding revocation of probation on same charge, 76 A.L.R.3d 564.

Acquittal in criminal proceeding as precluding revocation of parole on same charge, 76 A.L.R.3d 578.

Modern status of rules and standards in state courts as to adequacy of defense counsel’s representation of criminal client, 2 A.L.R.4th 27.

Waiver or estoppel in incompetent legal representation cases, 2 A.L.R.4th 807.

Right of defendant in criminal proceeding to have immunity from prosecution granted to defense witness, 4 A.L.R.4th 617.

Prosecutor’s power to grant prosecution witness immunity from prosecution, 4 A.L.R.4th 1221.

Adequacy of defense counsel’s representation of criminal client regarding post-plea remedies, 13 A.L.R.4th 533.

Adequacy of defense counsel’s representation of criminal client regarding appellate and postconviction remedies, 15 A.L.R.4th 582.

Circumstances giving rise to prejudicial conflict of interests between criminal defendant and defense counsel—state cases, 18 A.L.R.4th 360.

Validity and efficacy of minor’s waiver of right to counsel — modern cases, 25 A.L.R.4th 1072.

Availability under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of subpoena duces tecum, 7 A.L.R.4th 836.

Sufficiency of evidence to support or require finding that out-of-state witness in criminal case is “material witness” justifying certificate to secure attendance under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, 12 A.L.R.4th 742.

Sufficiency of evidence to support or require finding that in-state witness in criminal case is “material and necessary” justifying issuance of summons directing attendance of witness under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, 12 A.L.R.4th 771.

Validity and efficacy of minor’s waiver of right to counsel — modern cases, 25 A.L.R.4th 1072.

Application of speedy trial statute to dismissal or other termination of prior indictment or information and bringing of new indictment or information, 39 A.L.R.4th 899.

Former jeopardy as bar to retrial of criminal defendant after original trial court’s sua sponte declaration of a mistrial — State cases, 40 A.L.R.4th 741.

Constitutionality, with respect to accused’s rights to information or confrontation, of statute according confidentiality to sex crime victim’s communications to sexual counselor, 43 A.L.R.4th 395.

Voluntariness of confession as affected by police statements that suspect’s relatives will benefit by the confession, 51 A.L.R.4th 495.

Exclusion of public from state criminal trial in order to preserve confidentiality of undercover witness, 54 A.L.R.4th 1156.

Exclusion of public from state criminal trial in order to avoid intimidation of witness, 55 A.L.R.4th 1196.

Validity, construction, and application of “Son of Sam” laws regulating or prohibiting distribution of crime-related book, film, or comparable revenues to criminals, 60 A.L.R.4th 1210.

Relief available for violation of right to counsel at sentencing in state criminal trial, 65 A.L.R.4th 183.

Ineffective assistance of counsel, misrepresentation, or failure to advise, of immigration consequences of guilty plea, 65 A.L.R.4th 719.

Exclusion of public from state criminal trial by conducting trial or part thereof at other than regular place or time, 70 A.L.R.4th 632.

Homicide: cremation of victim’s body as violation of accused’s rights, 70 A.L.R.4th 1091.

Right of indigent defendant in state criminal case to assistance of ballistics experts, 71 A.L.R.4th 638.

Right of indigent defendant in state criminal case to assistance of fingerprint expert, 72 A.L.R.4th 874.

Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of foreign language speaking defendant, 79 A.L.R.4th 1102.

Double jeopardy: various acts of weapons violations as separate or continuing offense, 80 A.L.R.4th 631.

Right of indigent defendant in state criminal case to assistance of investigators, 81 A.L.R.4th 259.

What constitutes assertion of right to counsel following Miranda warnings — state cases, 83 A.L.R.4th 443.

Admissibility, in prosecution in another state’s jurisdiction, of confession or admission made pursuant to plea bargain with state authorities, 90 A.L.R.4th 1133.

Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871.

Ineffective assistance of counsel: right of attorney to withdraw, as appointed defense counsel, due to self-avowed incompetence, 16 A.L.R.5th 118.

Exclusion of public and media from voir dire examination of prospective jurors in state criminal case, 16 A.L.R.5th 152.

Criminal defendant’s representation by person not licensed to practice law as violation of right to counsel, 19 A.L.R.5th 351.

Propriety, under state constitutional provisions, of granting use or transactional immunity for compelled incriminating testimony — post-Kastigar cases, 29 A.L.R.5th 1.

Coercive conduct by private person as affecting admissibility of confession under state statutes or constitutional provisions — post- Connelly cases, 48 A.L.R.5th 555.

Adequacy of defense counsel’s representation of criminal client — issues of mental matters concerning persons, other than counsel’s client, who are involved in criminal case, 80 A.L.R.5th 55.

Denial of accused’s request for initial contact with attorney in cases involving offenses other than drunk driving — Cases focusing on presence of inculpatory evidence other than statements by accused and cases focusing on absence of particular inculpatory evidence, 90 A.L.R.5th 225.

Failure of state prosecutor to disclose exculpatory photographic evidence as violating due process, 93 A.L.R.5th 527.

Failure of state prosecutor to disclose fingerprint evidence as violating due process, 94 A.L.R.5th 393.

Adequacy of defense counsel’s representation of criminal client-conduct at trial regarding issues of insanity, 95 A.L.R.5th 125.

Failure of state prosecutor to disclose exculpatory ballistic evidence as violating due process, 95 A.L.R.5th 611.

Denial of, or interference with, accused’s right to have attorney initially contact accused, 96 A.L.R.5th 327.

Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs — Drugs or narcotics administered as part of medical treatment and drugs or intoxicants administered by the police, 96 A.L.R.5th 523.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts — Modern view, 97 A.L.R.5th 201.

Failure of state prosecutor to disclose exculpatory medical reports and tests as violating due process, 101 A.L.R.5th 187.

Validity and efficacy of minor’s waiver of right to counsel — cases decided since application of In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527, 1967 U.S. LEXIS 1478 (U.S. 1967).

Failure of state prosecutor to disclose pretrial statement made by crime victim as violating due process, 102 A.L.R.5th 327.

Denial of accused’s request for initial contact with attorney — drunk driving cases, 109 A.L.R.5th 611.

Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) to state death penalty proceedings, 110 A.L.R.5th 1.

Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues — Motions and objections during trial and matters other than pretrial motions, 117 A.L.R.5th 513.

Denial of accused’s request for initial contact with attorney in cases involving offenses other than drunk driving-Cases focusing on presence of inculpatory statements, 124 A.L.R.5th 1.

Failure of state prosecutor to disclose existence of plea bargain or other deals with witness as violating due process, 12 A.L.R.6th 267.

Adoption and application of “tainted” approach or “dual motivation” analysis in determining whether existence of single discriminatory reason for peremptory strike results in automatic Batson violation when neutral reasons also have been articulated, 15 A.L.R.6th 319.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Guilty Pleas – Coercion or Duress. 19 A.L.R.6th 411.

Voluntary Nature of Confession as Affected by Appeal to Religious Beliefs. 20 A.L.R.6th 479.

Failure of State Prosecutor to Disclose Exculpatory Tape Recorded Evidence as Violating Due Process. 24 A.L.R.6th 1.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — At Suspect’s or Third Party’s Residence, 28 A.L.R.6th 505.

What Constitutes “Custodial Interrogation” of Adult by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — At Police Station or Sheriff’s Office, Where Defendant Voluntarily Appears or Appears at Request of Law Enforcement Personnel, or Where Unspecified as to Circumstances Upon Which Defendant Is Present, 29 A.L.R.6th 1.

Comment Note: Construction and Application of Supreme Court’s Ruling in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv. 1077 (2004), with Respect to Confrontation Clause Challenges to Admissibility of Hearsay Statement by Declarant Whom Defendant Had No Opportunity to Cross-Examine. 30 A.L.R.6th 1.

What Constitutes “Custodial Interrogation” at Hospital by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — Suspect Hospital Patient. 30 A.L.R.6th 103.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Guilty Pleas — Probation, Parole, or Pardon Possibilities, 31 A.L.R.6th 49.

What Constitutes “Custodial Interrogation” at Hospital by Police Officer Within Rule of Requiring That Suspect Be Informed of His Federal Constitutional Rights Before Custodial Interrogation — Suspect Hospital Visitor, Not Patient, 31 A.L.R.6th 465.

What Constitutes “Custodial Interrogation” of Adult by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — At Police Station or Sheriff’s Office, Where Defendant Is Escorted or Accompanied by Law Enforcement Personnel, or Is Otherwise at Station or Office Involuntarily, 32 A.L.R.6th 1.

Determination of Request for Exclusion of Public from State Criminal Trial in Order to Preserve Safety, Confidentiality, or Well-Being of Witness Who Is Not Undercover Police Officer — Issues of Proof, Consideration of Alternatives, and Scope of Closure, 32 A.L.R.6th 171.

Desire of Accused to Testify on Just One of Multiple Charges as Basis for Severance of Trials, 32 A.L.R.6th 385.

Basis for Exclusion of Public from State Criminal Trial in Order to Preserve Safety, Confidentiality, or Well-Being of Witness Who Is Not Undercover Police Officer, 33 A.L.R.6th 1.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — At Police Vehicle, Where Defendant Outside, but in Immediate Vicinity of, Vehicle, or Where Defendant in Parked or Stationary Law Enforcement Vehicle, 34 A.L.R.6th 1.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — At Police Vehicle, Where Defendant in Moving Vehicle, or Where Unspecified as to Whether Vehicle Moving or Stationary, 35 A.L.R.6th 127.

Propriety of Using Otherwise Inadmissible Statement, Taken in Violation of Miranda Rule, to Impeach Criminal Defendant’s Credibility — State Cases. 42 A.L.R.6th 237.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — Upon Hotel Property. 45 A.L.R.6th 337.

Suppression of Statements Made during Police Interview of Non-English-Speaking Defendant. 49 A.L.R.6th 343.

What Constitutes “Custodial Interrogation” Within Rule of Requiring That Suspect Be Informed of His Federal Constitutional Rights Before Custodial Interrogation — Private Security Guards, Detectives, or Police. 51 A.L.R.6th 219.

Failure of State Prosecutor to Disclose Exculpatory Physical Evidence as Violating Due Process — Weapons. 53 A.L.R.6th 81.

Failure of State Prosecutor to Disclose Exculpatory Physical Evidence as Violating Due Process — Personal Items Other Than Weapons. 55 A.L.R.6th 391.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — At Nonpolice Vehicle for Traffic Stop, Where Defendant Outside, But in Immediate Vicinity of Vehicle, or Where Unspecified as to Whether Inside or Outside of Nonpolice Vehicle. 55 A.L.R.6th 513.

Failure of State Prosecutor to Disclose Exculpatory Physical Evidence as Violating Due Process — Evidence Other Than Weapons or Personal Items. 56 A.L.R.6th 185.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — In Nonpolice Vehicle for Traffic Stop. 56 A.L.R.6th 323.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — At Nonpolice Vehicle for Other Than Traffic Stop. 57 A.L.R.6th 83.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect be Informed of Federal Constitutional Rights Before Custodial Interrogation — Where Unspecified as to Precise Location of Roadside Questioning by Law Enforcement Officers. 58 A.L.R.6th 215.

What Constitutes “Custodial Interrogation” Within Rule of Miranda v. Arizona Requiring That Suspect be Informed of Federal Constitutional Rights Before Custodial Interrogation — At Suspect’s Place of Employment or Business. 58 A.L.R.6th 439.

What Constitutes “Custodial Interrogation” Within Rule of Miranda v. Arizona Requiring That Suspect be Informed of Federal Constitutional Rights Before Custodial Interrogation — At School. 59 A.L.R.6th 393.

When Does Use of Pepper Spray, Mace, or Other Similar Chemical Irritants Constitute Violation of Constitutional Rights. 65 A.L.R.6th 93.

What Constitutes “Custodial Interrogation” Within Rule of Requiring that Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — At Border or Functional Equivalent of Border. 68 A.L.R.6th 607.

Criminal Defendant’s Right to Electronic Recordation of Interrogations and Confessions. 69 A.L.R.6th 579.

Propriety and Prejudicial Effect of Requiring Defendant to Wear Stun Belt or Shock Belt During Course of State Criminal Trial. 71 A.L.R.6th 625.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Search and Seizure Issues — Pretrial Motions — Suppression Motions Where Warrant Was Involved. 72 A.L.R.6th 1.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for the Truth — Underlying Homicide and Assault Offenses. 72 A.L.R.6th 437.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Search and Seizure Issues — Pretrial Motions — Motions Other than for Suppression. 73 A.L.R.6th 1.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for Truth — Underlying Drug Offenses. 73 A.L.R.6th 49.

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for the Truth — Underlying Sexual Offenses. 74 A.L.R.6th 69.

Construction and Application by State Courts of Supreme Court’s Ruling in Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), That Defense Counsel Has Obligation to Advise Defendant That Entering Guilty Plea Could Result in Deportation. 74 A.L.R.6th 373.

Necessity or propriety of court’s provision of cocounsel to criminal defendant who is already represented by counsel — State prosecutions, 83 A.L.R.6th 465.83 A.L.R.6th 465.

Fifth amendment privilege against self-incrimination as applied to compelled disclosure of password or production of otherwise encrypted electronically stored data. 84 A.L.R.6th 251.

Modern status of rule as to test in federal court of effective representation by counsel, 26 A.L.R. Fed. 218.

What Constitutes “Custodial Interrogation” of Juvenile by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation - At Police Station or Sheriff’s Office. 26 A.L.R.6th 451.

Circumstances giving rise to prejudicial conflict of interests between criminal defendant and defense counsel — federal cases, 53 A.L.R. Fed. 140.

Double jeopardy considerations in state criminal cases — Supreme Court Cases, 77 A.L.R. Fed. 2d 477.

Availability of sole shareholder’s Fifth Amendment privilege against self-incrimination to resist production of corporation’s books and records — modern status, 87 A.L.R. Fed. 177.

Equal protection and due process clause challenges based on sex discrimination — Supreme Court cases, 178 A.L.R. Fed. 25.

Right of enemy combatant to counsel, 184 A.L.R. Fed. 527.

Forcible administration of antipsychotic medication to pretrial detainees — Federal cases, 188 A.L.R. Fed. 285.

Comment Note: Ineffective Assistance of Counsel in Removal Proceedings — Legal Bases of Entitlement to Representation and Requisites to Establish Prima Facie Case of Ineffectiveness. 58 A.L.R. Fed. 2d 363.

Comment Note: Ineffective Assistance of Counsel in Removal Proceedings — Particular Acts. 59 A.L.R. Fed. 2d 151.

Comment Note: Ineffective Assistance of Counsel in Removal Proceedings — Particular Omissions or Failures. 60 A.L.R. Fed. 2d 59.

Law Reviews.

The Admissibility of Lie Detector Evidence, 51 N.D. L. Rev. 679, 696 (1975).

The Statute of Limitations in North Dakota’s Products Liability Act: An Exercise in Futility?, 59 N.D. L. Rev. 551 (1983).

Schools — Nature of the Right to Instruction — The Substantive Requirements of “Free Appropriate Public Education” Under the Education of All Handicapped Children Act of 1975, 59 N.D. L. Rev. 629 (1983).

Criminal Law — Right to Counsel — A Defendant’s Prior Uncounseled Misdemeanor Convictions May Not Be Used to Enhance Punishment Pursuant to North Dakota’s DUI Statute, 63 N.D. L. Rev. 301 (1987).

Automobiles — Refusals of Test, Admissibility: North Dakota’s Privilege Against Self-Incrimination as Applied to a Refusal to Submit to a Blood Alcohol Test, 71 N.D. L. Rev. 821 (1995).

Summary of North Dakota Supreme Court Decisions on Criminal Law — Admissibility of Refusal Evidence, 71 N.D. L. Rev. 859 (1995).

Statutory Bars to Dual Sovereign Prosecutions: The Minnesota and North Dakota Approaches Compared, 72 N.D. L. Rev. 583 (1996).

Criminal Procedure-Counsel for Accused-Waiver of the Sixth Amendment Right to Counsel: The North Dakota Supreme Court Rules That a Knowing and Intelligent Waiver Requires Awareness of Dangers and Disadvantages of Self-Representation, State v. Wicks, 1998 N.D. 76, 576 N.W.2d 518 (1998), 75 N.D. L. Rev. 921 (1999).

North Dakota Supreme Court Review (Roth v. State, 2007 ND 112, 735 N.W.2d 882 (2007)), see 84 N.D. L. Rev. 567 (2008).

North Dakota Supreme Court Review (State v. Kunze, 2007 ND 143, 738 N.W.2d 472 (2007)), see 84 N.D. L. Rev. 567 (2008).

For Case Comment: Criminal Law — Search And Seizure: The North Dakota Supreme Court Adopts a Four-Prong Test to Determine Whether Miranda Warnings Are Sufficient to Cure a Fourth Amendment Violation State v. Gay, 2008 ND 84, 748 N.W.2d 408, see 85 N. Dak. L. Rev. 215 (2009)

Actions Involving Personal Property.

This section preserves the right to a jury trial in actions to determine the title and right of possession of personal property. First Nat'l Bank v. Kling, 65 N.D. 264, 257 N.W. 631, 1934 N.D. LEXIS 195 (N.D. 1934).

Applicability.

Although violation of a ordinance would not have been categorized as an infraction in 1889, defendant would have had the right to a jury trial for allegedly violating it when the state constitution was adopted, and he still has a right to a jury trial for an alleged violation of the ordinance. Smith v. Isakson, 2021 ND 131, 2021 N.D. LEXIS 132 (N.D. 2021).

Amount of Damages Claimed.

Where pleadings raised genuine issues of material fact in an action by an insured against insurance company for money damages when insurance company denied coverage under policy, insurance company was entitled to a jury trial, and trial court erred in striking company’s demand for a jury trial in its pretrial conference order on ground that insured’s claim against company was for an amount less than $ 2,500. Daley v. American Family Mut. Ins. Co., 355 N.W.2d 812, 1984 N.D. LEXIS 398 (N.D. 1984).

N.D.C.C. § 32-12.1-03(2) did not violate N.D. Const. art. I, § 13, as it only limited the amount of recovery ultimately allowed against a political subdivision. Larimore Pub. Sch. Dist. No. 44 v. Aamodt, 2018 ND 71, 908 N.W.2d 442, 2018 N.D. LEXIS 75 (N.D. 2018).

Appeal.

On an appeal in a jury case the appellate court reviews only errors assigned upon the proceedings had in the trial court, and not sufficiency of the evidence, because to do otherwise would violate this section. Erickson v. Wiper, 33 N.D. 193, 157 N.W. 592, 1916 N.D. LEXIS 108 (N.D. 1916); Thompson v. Scott, 34 N.D. 503, 159 N.W. 21, 1916 N.D. LEXIS 55 (N.D. 1916).

Although defendant argued the prosecutor used a peremptory challenge based on race to strike one of the few minority jurors on the panel, the prosecutor articulated clear and specific race-neutral reasons in this case for his use of the peremptory challenge, and there was no pattern of peremptory challenges against members of a constitutionally cognizable group. The district court was not clearly erroneous in finding no purposeful racial discrimination. State v. Garnder, 2016 ND 161, 883 N.W.2d 471, 2016 N.D. LEXIS 163 (N.D. 2016).

Applicability.

Defendant charged with violating an infraction-level offense, a county animal control ordinance, was not facing the possibility of a prison sentence. As a result, defendant, despite a claim to the contrary, was not entitled to a jury trial under N.D. Const. art. I, § 13. State v. Brown, 2009 ND 150, 771 N.W.2d 267, 2009 N.D. LEXIS 159 (N.D. 2009).

Change of Venue.

Statutory authority giving either party the right to change the place of trial when necessary to secure a fair and impartial trial does not violate the right to a trial by jury secured by this section. Barry v. Truax, 13 N.D. 131, 99 N.W. 769, 1904 N.D. LEXIS 21 (N.D. 1904).

Compulsory Arbitration.

Compulsory arbitration of disputes arising out of highway construction and repair contracts, as provided by N.D.C.C. § 24-02-26, is not denial of right to jury trial. Hjelle v. Sornsin Constr. Co., 173 N.W.2d 431, 1969 N.D. LEXIS 66 (N.D. 1969).

Conciliation Statute.

A statute which provides for the conciliation of controversies where the amount involved is $ 200 or less, does not violate this section, since a certificate of inability to reach a settlement may be issued, after which a jury trial may be had. Klein v. Hutton, 49 N.D. 248, 191 N.W. 485, 1922 N.D. LEXIS 48 (N.D. 1922).

Contempt Proceeding.

A judgment imposing a fine and imprisonment for contempt of court is not void because the person upon whom such punishment is inflicted did not have a trial by jury. State v. Markuson, 5 N.D. 147, 64 N.W. 934, 1895 N.D. LEXIS 22 (N.D. 1895); State v. Finlayson, 41 N.D. 494, 170 N.W. 910, 1918 N.D. LEXIS 165 (N.D. 1918).

One charged with contempt of court in a prosecution for violation of the prohibition law was not entitled to a jury trial as a matter of right. State v. Finlayson, 41 N.D. 494, 170 N.W. 910, 1918 N.D. LEXIS 165 (N.D. 1918).

Striking teachers charged with disobedience of permanent restraining order and subject to maximum penalty of a fine of not more than $ 250 and imprisonment in county jail of not more than thirty days were not entitled to jury trial as matter of right, since they were charged with petty contempt. State v. Heath, 177 N.W.2d 751, 1970 N.D. LEXIS 116 (N.D. 1970).

Directed Verdict.

When the nature of the evidence in an action for damages, is such that no verdict for the plaintiff can be returned except one based upon mere conjecture, surmise, or speculation, it is proper for the trial court to direct a verdict for the defendant. Scherer v. Schlaberg, 18 N.D. 421, 122 N.W. 1000, 1909 N.D. LEXIS 49 (N.D. 1909).

Whenever there are disputed questions of fact, from which men of ordinary intelligence might draw different conclusions, the findings upon such facts are for the jury, and the court cannot rightfully interfere with the prerogative of the jury, nor the rights of the litigants in such case. Peterson v. Fargo M. S. Ry., 37 N.D. 440, 164 N.W. 42, 1917 N.D. LEXIS 117 (N.D. 1917).

Discrimination Complaint.

Although a plaintiff in a discrimination complaint initially sought some injunctive relief, her final amended complaint sought only an award of money damages. Thus, the defendants were entitled to a jury trial. Moses v. Burleigh County, 438 N.W.2d 186, 1989 N.D. LEXIS 69 (N.D. 1989).

Divorce.

A party has no right to a jury trial in a divorce proceeding. Martian v. Martian, 328 N.W.2d 844, 1983 N.D. LEXIS 226 (N.D. 1983).

This section does not provide a right to a jury trial in a divorce action; the section neither enlarges nor restricts the right to a jury trial but merely preserves it as it existed at the time of the adoption of the North Dakota constitution, preserving the right of trial by jury for all cases in which it could have been demanded as a matter of right at common law. Peters-Riemers v. Riemers, 2002 ND 72, 644 N.W.2d 197, 2002 N.D. LEXIS 96 (N.D. 2002), cert. denied, 537 U.S. 1195, 123 S. Ct. 1252, 154 L. Ed. 2d 1031, 2003 U.S. LEXIS 1209 (U.S. 2003).

Fair Cross-Section.

Once the defendant has made a prima facie showing of a violation of the fair cross-section requirement for the jury panel from which his jury has been selected, the burden shifts to the state to show a significant interest manifestly and primarily advanced by aspects of the jury selection process that have resulted in the disproportionate exclusion of a distinct group. State v. Fredericks, 507 N.W.2d 61, 1993 N.D. LEXIS 193 (N.D. 1993).

Where a trial court clerk, in an attempt to fully seat a jury for defendant’s trial after voir dire was already in progress, telephoned only women who were on the jury wheel that she knew would be at home and not at work, defendant failed to show that the fair cross-section requirement for the jury panel was violated merely because four women were seated on the jury from those efforts. State v. Schwab, 2003 ND 119, 665 N.W.2d 52, 2003 N.D. LEXIS 128 (N.D. 2003).

Because a prosecutor gave a clear and specific race-neutral explanation for exercising a peremptory challenge against the only African-American juror, that the juror peremptorily challenged had been a juror in an earlier negligent homicide case the prosecutor had prosecuted in which the jury had acquitted the defendant, the prosecutor noted the juror was reading a book when the judge was talking to the potential jurors, and the prosecutor had concerns about the juror’s answers to questions about the juror’s understanding of self defense, an issue which would be raised in the case; therefore, a district court did not err in rejecting two African-American defendants’ Batson challenge. State v. Stridiron, 2010 ND 19, 777 N.W.2d 892, 2010 N.D. LEXIS 16 (N.D. 2010).

Foreclosure of Mortgage.

Issues of fact in an equitable action to foreclose a mortgage are not triable before a jury as a matter of right. Avery Mfg. Avery Mfg. Co. v. Crumb, 14 N.D. 57, 103 N.W. 410 (N.D. 1905).

Where the plaintiff, who sues to foreclose a chattel mortgage, brings in a third party who claims to be the owner and entitled to possession, the third party is entitled to have a jury trial. First Nat'l Bank v. Kling, 65 N.D. 264, 257 N.W. 631, 1934 N.D. LEXIS 195 (N.D. 1934).

Foreclosure of a mortgage is an equitable proceeding triable to the court without right to a jury trial. Midwest Fed. Sav. & Loan Ass'n v. Kouba, 335 N.W.2d 780, 1983 N.D. LEXIS 382 (N.D. 1983); Union State Bank v. Miller, 335 N.W.2d 807, 1983 N.D. LEXIS 427 (N.D.), cert. denied, 464 U.S. 1019, 104 S. Ct. 554, 78 L. Ed. 2d 727, 1983 U.S. LEXIS 2766 (U.S. 1983).

Impartiality.

Although the North Dakota Constitution’s guarantee of the right to a jury trial does not explicitly require an impartial jury, the Sixth Amendment’s impartiality and fair cross-section requirements are read into the state constitution. State v. Fredericks, 507 N.W.2d 61, 1993 N.D. LEXIS 193 (N.D. 1993).

Juror Misconduct.

Defendant’s right to a fair and impartial jury under the Sixth Amendment and N.D. Const. art. I, § 13 was not violated by a juror’s use of a cell phone where there was no evidence that the other jurors heard any information outside of that presented in the courtroom. The trial court had informed the jury not to communicate among themselves or others on the subject of the trial, pursuant to N.D.C.C. §§ 29-21-27, 29-21-28. State v. Newman, 2007 ND 148, 738 N.W.2d 887, 2007 N.D. LEXIS 150 (N.D. 2007).

Jury Instructions.

To guide a jury in its transition from considering the charged offense to considering lesser included offenses, the “acquittal first” instruction, which requires the jury to agree unanimously to acquit on the greater offense before considering lesser offenses, is the better reasoned form of instruction, rather than the “unable to agree” instruction, which instructs the jury it may consider lesser included offenses if, after reasonable efforts, the jurors cannot agree on a verdict on the greater offense. State v. Daulton, 518 N.W.2d 719, 1994 N.D. LEXIS 146 (N.D. 1994).

Juvenile Proceedings.

A child is not constitutionally entitled to a jury trial in a juvenile court proceeding on issue of his delinquency. In re R.Y., 189 N.W.2d 644, 1971 N.D. LEXIS 142 (N.D. 1971).

Mandamus Action to Compel Filing of Tax Return.

A jury trial is not mandatory under this section in an action to compel the filing of a tax return. Dorgan v. Kouba, 274 N.W.2d 167, 1978 N.D. LEXIS 184 (N.D. 1978).

Mental Health Proceedings.

This section preserves the right to jury trial in all cases in which there was a right to jury trial at the time the Constitution was adopted; there was no right to jury trial in mental health proceedings in 1889, thus, there is no constitutional right to jury trial in such proceedings. In Interest of R.Z., 415 N.W.2d 486, 1987 N.D. LEXIS 425 (N.D. 1987).

Mixed Causes of Action.

Where the complaint prays for both legal and equitable relief and the former alone is warranted by the facts pleaded, it is error to deny defendant’s demand for a trial by jury. Kilgore v. Farmers Union Oil Co., 74 N.D. 640, 24 N.W.2d 26, 1946 N.D. LEXIS 90 (N.D. 1946).

Teacher was not entitled to a jury trial as a matter of right in an action against the school district for breach of his teacher’s contract where the action sought both equitable relief, which was in part granted, and damages, and the equitable relief sought was primary and not incidental to the prayer for damages. Lithun v. Grand Forks Pub. Sch. Dist., 307 N.W.2d 545, 1981 N.D. LEXIS 321 (N.D. 1981).

Number of Jurors.

In the trial of a civil action in a court of record the jury must consist of at least twelve members in order for its verdict to be of any binding effect, unless there was a binding stipulation between the parties to submit it to a lesser number. Froelich v. Northern Pac. Ry., 39 N.D. 307, 167 N.W. 366, 1918 N.D. LEXIS 29 (N.D. 1918).

The provision of this section, securing trial by jury, does not extend the right, but secures it in the cases in which it was a matter of right before, and, unless a contrary purpose clearly appears, the historical jury of twelve persons is preserved. Power v. Williams, 53 N.D. 54, 205 N.W. 9, 1925 N.D. LEXIS 60 (N.D. 1925).

This section means a common-law jury of twelve persons qualified to act as such jurors; no more and no less are allowed. Ex parte Kortgaard, 66 N.D. 555, 267 N.W. 438, 1936 N.D. LEXIS 202 (N.D. 1936).

As this section and N.D.C.C. § 29-17-12 specifically authorize a six-person jury in misdemeanor cases, which is also permissible under the federal constitution, defendant’s trial by a six-person jury did not deny him due process. State v. Benson, 376 N.W.2d 36, 1985 N.D. LEXIS 460 (N.D. 1985).

Legislative interference with the size of the jury for a felony trial is not authorized in this section; accordingly, that part of N.D.C.C. § 29-17-12, which dictates a six-person jury in a felony case absent a special written demand by the defendant is unconstitutional. State v. Hegg, 410 N.W.2d 152, 1987 N.D. LEXIS 371 (N.D. 1987).

Presumption of Waiver.

A waiver of the right to a jury trial cannot be presumed from inferences drawn from the record. State v. Bohn, 406 N.W.2d 677, 1987 N.D. LEXIS 320 (N.D. 1987).

Prior Conviction.

Where defendant, in pleading guilty to an earlier DUI charge, signed a form which indicated that the court acted in accordance with his constitutional rights and privileges and substantially complied with the procedures adopted to protect those rights and privileges, including rights under N.D. Const. art. I, § 13, the record of that conviction would be admissible to enhance the sentence of a second DUI conviction, absent evidence indicating that the form did not correctly reflect what transpired at the earlier hearing. State v. Goeman, 431 N.W.2d 290, 1988 N.D. LEXIS 221 (N.D. 1988).

Reference.

This section preserves the right of trial by jury as it existed before the adoption of the constitution, and allows a reference where a long account is involved. Smith v. Kunert, 17 N.D. 120, 115 N.W. 76, 1908 N.D. LEXIS 15 (N.D. 1908).

Removal of Public Officer.

In a proceeding to remove an appointive officer by the governor, there is no right to a trial by jury, such proceeding not being a criminal one. State v. Purchase, 57 N.D. 511, 222 N.W. 652, 1928 N.D. LEXIS 157 (N.D. 1928).

Rescission of Real Estate Sales Contract.

Where property owners seeking to rescind real estate sales contract on the basis of fraud made no offer to restore the purchase price before intervening in a partition action pertaining to the property, the claim was an equitable one, and thus the claimants had no right to a jury trial. Murphy v. Murphy, 1999 ND 118, 595 N.W.2d 571, 1999 N.D. LEXIS 110 (N.D. 1999).

Right to Jury Trial in Civil Action.

One against whom an action is brought may not be deprived of the right to a jury trial unless the party seeking to avoid a jury trial clearly and unambiguously shows that he is seeking an equitable remedy and that he is clearly entitled to it if he proves facts as alleged in his complaint. General Elec. Credit Corp. v. Richman, 338 N.W.2d 814, 1983 N.D. LEXIS 355 (N.D. 1983).

While money damages incidental to primary equitable relief may not always qualify for a jury trial, except in the trial court’s discretion, where only legal relief is requested, a trial by jury should be accorded on demand. Moses v. Burleigh County, 438 N.W.2d 186, 1989 N.D. LEXIS 69 (N.D. 1989).

There was no right under this section to a jury trial in proceedings under N.D.C.C. § 19-03.1-36.6; that statute created proceedings and remedies unknown when the state constitution was adopted. State v. $ 17,515.00 in Cash Money, 2003 ND 168, 670 N.W.2d 826, 2003 N.D. LEXIS 178 (N.D. 2003).

Although the state constitution guaranteed the right to a jury trial in civil cases, a defaulting corporation, against whom foreclosure procedures had been filed by the lender, was not entitled to a jury trial in a suit in equity. Oliver-Mercer Elec. Coop. v. Davis, 2004 ND 86, 678 N.W.2d 757, 2004 N.D. LEXIS 182 (N.D. 2004).

In a patient’s sexually dangerous person commitment proceeding, the patient was not denied the right to a trial by jury because the involuntary civil commitment provisions of N.D.C.C. ch. 25-03.3 created a statutory proceeding that was unknown at the time that the North Dakota Constitution was adopted in 1889. Consequently, there was no right to a jury trial. State v. Anderson (In re Anderson), 2007 ND 50, 730 N.W.2d 570, 2007 N.D. LEXIS 47 (N.D. 2007).

Tax Matters.

Defendant was not entitled to a jury trial in a mandamus action to compel the filing of an income tax return where there were no issues of fact for a jury. Dorgan v. Kouba, 274 N.W.2d 167, 1978 N.D. LEXIS 184 (N.D. 1978).

Transportation of Liquor.

A defendant, in a prosecution for the transportation of intoxicating liquor, is entitled to a trial by jury on all questions of fact. State v. Kirsch, 66 N.D. 626, 268 N.W. 473, 1936 N.D. LEXIS 209 (N.D. 1936).

Unanimous Verdict.

The right of trial by jury, as secured in this section, is as it existed at common law and under the federal Constitution in Dakota Territory, including, as an essential incident, the unanimous concurrence of twelve jurors in the verdict. Power v. Williams, 53 N.D. 54, 205 N.W. 9, 1925 N.D. LEXIS 60 (N.D. 1925).

Chapter 333, S.L. 1923, which authorized less than twelve jurors to return a valid verdict, was unconstitutional as violative of this section. National Cash Register Co. v. Midway City Creamery Co., 53 N.D. 256, 205 N.W. 624, 1925 N.D. LEXIS 71 (N.D. 1925).

In a gross sexual imposition case where the jury had to unanimously agree which sexual act or acts the defendant engaged in to find him guilty, a district court's failure to include information in the jury instructions identifying the underlying act for each count of the offense or to instruct the jury that it had to unanimously agree on the underlying act for each count constituted an obvious error; the complaint was not read to the jury and a copy of the complaint was not given to the jury with the jury instructions. State v. Martinez, 2015 ND 173, 865 N.W.2d 391, 2015 N.D. LEXIS 195 (N.D. 2015).

Violation by Moratorium.

The Northeast Judicial District’s blanket moratorium on civil jury trials, for budgetary purposes, through the balance of the biennium, a period of about eighteen months was a significant period of time and violated petitioner’s state constitutional right to a civil jury trial. Odden v. O'Keefe, 450 N.W.2d 707, 1990 N.D. LEXIS 15 (N.D. 1990).

Voir Dire.

In a criminal contempt case arising from a visitation dispute, the record did not support defendant’s assertion that he was not able to challenge and question certain jurors on their impartiality. State v. Stockert, 2004 ND 146, 684 N.W.2d 605, 2004 N.D. LEXIS 276 (N.D. 2004).

Waiver of Jury.

Defendant was denied his right to a jury trial where he was tried by court and record did not reveal that defendant expressly and intelligently consented to waiver of his right to a trial by jury; when a written waiver is not submitted, a trial court could eliminate doubt and safeguard rights of a defendant by obtaining an express statement of defendant specifically indicating on record that a jury trial is or is not waived. State v. Kranz, 353 N.W.2d 748, 1984 N.D. LEXIS 334 (N.D. 1984).

The mere selection by defendant of a court trial over a jury trial provides no indication that defendant understood the implications of his decision. State v. Haugen, 384 N.W.2d 651, 1986 N.D. LEXIS 278 (N.D. 1986).

Where a defendant indicates a desire to waive his or her right to a jury trial, it is the responsibility of the trial court to ascertain whether or not the defendant’s jury trial waiver is a voluntary, knowing, and intelligent decision done with sufficient awareness of the relevant circumstances and likely consequences. State v. Haugen, 384 N.W.2d 651, 1986 N.D. LEXIS 278 (N.D. 1986).

Where the prosecutor performs the judicial function of advising an uncounseled defendant out of the presence of the judge, where that advice includes incorrect statements of law, and where a defendant is provided with a written statement of rights which contains waivers that are entirely inappropriate to the situation, the North Dakota supreme court cannot conclude that the waiver of defendant’s right to a jury trial was a voluntary, knowing, and intelligent decision. State v. Haugen, 384 N.W.2d 651, 1986 N.D. LEXIS 278 (N.D. 1986).

Although the trial judge informed the defendant of his right to a jury trial, and the state maintained that the defendant was given a document informing him of his right to a jury trial, through which he waived that right, but the document was not part of the record and could not be found, there was no waiver of the right to a trial by jury. State v. Bohn, 406 N.W.2d 677, 1987 N.D. LEXIS 320 (N.D. 1987).

Silently proceeding with trial before a six-person jury is not an express and affirmative waiver of one’s constitutional right to a jury of twelve. State v. Hegg, 410 N.W.2d 152, 1987 N.D. LEXIS 371 (N.D. 1987).

Where summons and complaint were served on defendant on July 7, 1988 and he answered on July 13, 1988, but did not demand a jury trial until March 9, 1989, under N.D.R.Civ.P. 38, the demand for a jury trial was therefore not within 10 days after the service of the answer, the last pleading directed to the issues, and defendant therefore waived his right to a jury trial. The fact that the demand for a jury trial was made within ten days of the trial court’s March 6, 1989 order that the trial would not be continued was irrelevant, as that order was not a pleading directed to the issues of the case. Greenwood, Greenwood & Greenwood, P.C. v. Klem, 450 N.W.2d 745, 1990 N.D. LEXIS 21 (N.D. 1990).

An attorney may not waive his client’s constitutional right to a jury trial in a felony case; in such cases, an express waiver must be made personally by the defendant in writing or in open court. State v. Bakke, 498 N.W.2d 819, 1993 N.D. App. LEXIS 7 (N.D. Ct. App. 1993).

Statutory provision imposed by N.D.C.C. § 40-18-15.1 requiring a municipal court defendant charged with violation of a city ordinance to demand a jury trial within 28 days of arraignment doesn’t violate the defendant’s right to a jury trial. City of Bismarck v. Fettig, 1999 ND 193, 601 N.W.2d 247, 1999 N.D. LEXIS 210 (N.D. 1999).

District court erred by deciding it had discretion in determining whether to order a jury trial on remand and by denying a shareholder’s request for a jury trial because the shareholder had a right to a jury trial on remand; the parties waived the jury trial, but there was no indication they intended the waiver to apply to any subsequent trials, and the supreme court’s judgment and mandate reversed and remanded the case and did not limit the type of trial to be held on remand. 2020 ND 46.

When a case is reversed and remanded for a trial without limitation, a party who stipulated to waive the right to a jury trial before the original trial may demand a jury trial on remand, unless the parties intended their stipulation to apply to any future trials or the right is otherwise limited by law. 2020 ND 46.

Women Jurors.

A statute making women eligible for jury duty and service does not violate the “twelve men” provision of this section. STATE v. NORTON, 64 N.D. 675, 255 N.W. 787, 1934 N.D. LEXIS 251 (N.D. 1934).

Collateral References.

Constitutional Law 267; Jury 9-37.

47 Am. Jur. 2d, Jury, §§ 3-91.

16C C.J.S. Constitutional Law, §§ 1614, 1628-1636; 50A C.J.S. Juries, §§ 5-126, 197.

Right to jury trial on issue of validity of release, 43 A.L.R.2d 786.

Constitutionality of arbitration statute, 55 A.L.R.2d 432.

Court’s power to increase amount of verdict or judgment over either party’s refusal or failure to consent to addition, 56 A.L.R.2d 213.

Right to jury trial as violated by consolidated trial upon several indictments or informations against same accused, over his objection, 59 A.L.R.2d 846.

Disregard or withdrawal of waiver of jury trial in civil action, 64 A.L.R.2d 506.

Motion by each party for directed verdict as waiving submission of fact question to jury, 68 A.L.R.2d 300.

Contractual jury trial waivers in state civil cases, 42 A.L.R.5th 53.

Contractual jury trial waivers in state cases, 92 A.L.R. Fed. 688.

Rule or statute requiring opposing party’s consent to withdrawal of demand for jury trial, 90 A.L.R.2d 1162.

Sufficiency of waiver of full jury, 93 A.L.R.2d 410.

Right to jury trial in juvenile court delinquency proceedings, 100 A.L.R.2d 1241.

Right to trial by jury in criminal prosecution for driving while intoxicated or similar offense, 16 A.L.R.3d 1373.

Statute reducing number of jurors as violative of right to trial by jury, 47 A.L.R.3d 895.

Authority of state court to order jury trial in civil case where jury has been waived or not demanded by parties, 9 A.L.R.4th 1041.

Right to jury trial in action for declaratory relief in state court, 33 A.L.R.4th 146.

Right of accused, in state criminal trial, to insist, over prosecutor’s or court’s objection, on trial by court without jury, 37 A.L.R.4th 304.

Propriety of use of multiple juries at joint trial of multiple defendants in state criminal prosecution, 41 A.L.R.4th 1189.

Jury trial waiver as binding on later state civil trial, 48 A.L.R.4th 747.

Right to jury trial in action for retaliatory discharge from employment, 52 A.L.R.4th 1141.

Divorce, right to jury trial in state court divorce proceedings, 56 A.L.R.4th 955.

Validity of law or rule requiring state court party who requests jury trial in civil case to pay costs associated with jury, 68 A.L.R.4th 343.

Requirement of jury unanimity as to mode of committing crime under statute setting forth the various modes by which offense may be committed, 75 A.L.R.4th 91.

Right to jury trial in action under state civil rights law, 12 A.L.R.5th 508.

Examination and challenge of state case jurors on basis of attitudes toward homosexuality, 80 A.L.R.5th 469.

Right to jury trial in child neglect, child abuse, or termination of parental rights proceedings, 102 A.L.R.5th 227.

Validity and application of computerized jury selection practice or procedure, 110 A.L.R.5th 329.

Law Reviews.

Article: The Law Of Unintended Consequences: The North Dakota Supreme Court Recognizes the Right to a Jury Trial for Noncriminal Traffic Offenses in Riemers v. Eslinger, see 86 N.D. L. Rev. 505.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1989 relating to juries, 65 N.D. L. Rev. 578 (1989).

North Dakota Supreme Court Review (State v. Stridiron), see 86 N.D. L. Rev. 437 (2010).

In General.

Although the 1976 amendment deleted specific reference to habeas corpus, the provision in N.D. Const. art. VI, § 2, that the supreme court has original jurisdiction to issue, hear, and determine such original and remedial writs as may be necessary to exercise its jurisdiction includes the authority to issue original writs of habeas corpus. Jensen v. State, 373 N.W.2d 894, 1985 N.D. LEXIS 394 (N.D. 1985).

Post-Conviction Relief Statutes.

Requirement in Uniform Post-Conviction Procedure Act that individual petition in district of conviction rather than in district of confinement is a reasonable regulation and constitutionally permissible; it is not a restriction on the constitutional right to habeas corpus; provisions of act affecting venue of district courts are not unconstitutionally restrictive. McGuire v. Warden of State Farm (State Penitentiary), 229 N.W.2d 211, 1975 N.D. LEXIS 194 (N.D. 1975).

N.D.C.C. § 29-32.1-02 of the Uniform Post-Conviction Procedure Act indicates that the supreme court retains original jurisdiction to issue the writ of habeas corpus. Jensen v. State, 373 N.W.2d 894, 1985 N.D. LEXIS 394 (N.D. 1985).

The Uniform Post-Conviction Procedure Act was never intended to create a new remedy to wholly replace habeas corpus and the other common-law writs. Rather, the Uniform Act creates a procedure which implements the writ of habeas corpus and provides an opportunity for more extensive development of the issues and a more complete record for review. Jensen v. State, 373 N.W.2d 894, 1985 N.D. LEXIS 394 (N.D. 1985).

The appeal provisions of N.D.C.C. ch. 29-32 (now N.D.C.C. ch. 29-32.1) are a cumulative, and not a superseding, remedy, and the right of the people to invoke the original jurisdiction of the supreme court in habeas corpus is still viable. Thus, an unsuccessful applicant for post-conviction relief may seek appellate review pursuant to N.D.C.C. § 29-32-09 (see now N.D.C.C. § 29-32.1-14) or may petition the supreme court for an original writ of habeas corpus. Jensen v. State, 373 N.W.2d 894, 1985 N.D. LEXIS 394 (N.D. 1985).

A construction of N.D.C.C. § 29-32-02 (now N.D.C.C. § 29-32.1-02) which would substitute appellate jurisdiction for the original habeas corpus jurisdiction of the supreme court would be of doubtful constitutionality. The right of the people to seek an original writ of habeas corpus in the supreme court remains, and N.D.C.C. § 29-32-09 (see now N.D.C.C. § 29-32.1-14), the repeal provision of the Post-Conviction Procedure Act, provides a cumulative remedy available to those incarcerated in this state. Jensen v. State, 373 N.W.2d 894, 1985 N.D. LEXIS 394 (N.D. 1985).

In an appeal from a judgment under the Uniform Post-Conviction Procedure Act, the supreme court applies the “clearly erroneous” standard of N.D.R.Civ.P. 52(a) in reviewing fact questions. Rule 52(a) is inapplicable in original habeas corpus proceedings, and the supreme court reviews the record de novo. Thus, the court’s review of fact issues is more liberal under its original habeas corpus jurisdiction than it would be in an appeal under the Uniform Act. Jensen v. State, 373 N.W.2d 894, 1985 N.D. LEXIS 394 (N.D. 1985).

Collateral References.

Habeas Corpus 121-123.

39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, §§ 4, 5.

39 C.J.S. Habeas Corpus, §§ 4, 5.

Construction and Application of Suspension Clause of United States Constitution, U.S. Const. art. I, § 9, cl. 2, 31 A.L.R.6th 1.

Duty to Pay Alimony or Maintenance.

A husband who has been granted an absolute divorce for the fault of the wife and has agreed to the entering of an order directing him to pay her a certain sum per month, is not subject to imprisonment for contempt upon his failure to make such payments. Glynn v. Glynn, 8 N.D. 233, 77 N.W. 594, 1898 N.D. LEXIS 32 (N.D. 1898).

The duty to pay alimony or to furnish support is not a “debt” within the constitutional provision prohibiting imprisonment for debt. Gross v. Gross, 53 N.D. 480, 206 N.W. 793, 1925 N.D. LEXIS 9 (N.D. 1925).

Duty to Pay Support.

The obligation of the father to support his child is not, nor is a judgment based upon such obligation, a debt within the purview of the constitutional decree. State v. Hollinger, 69 N.D. 363, 287 N.W. 225, 1939 N.D. LEXIS 161 (N.D. 1939).

Issuing Bad Checks.

Imprisonment for conviction of issuing a check without sufficient funds under N.D.C.C. § 6-08-16 does not violate this section because such imprisonment is not for failure to pay a debt, but for issuing a check without sufficient funds. State v. McDowell, 312 N.W.2d 301, 1981 N.D. LEXIS 403 (N.D. 1981), cert. denied, 459 U.S. 981, 103 S. Ct. 318, 74 L. Ed. 2d 294, 1982 U.S. LEXIS 4199 (U.S. 1982).

Although N.D.C.C. § 6-08-16 is not, on its face, defective, when combined with the practice here involved, i.e., that after the office of the state’s attorney has sent the notice, over ninety-five percent of the persons charged with a violation of N.D.C.C. § 6-08-16 are people who have received the notice but who have not paid the check, and the admission that in most cases they would not have been prosecuted if they had paid the check, the practice effectively makes the crime one for failure to pay, for if the check is paid there is no prosecution, and is, therefore, unconstitutional. State v. Ohnstad, 392 N.W.2d 389, 1986 N.D. LEXIS 380 (N.D. 1986).

Nonpayment of Costs by Guardian.

The guardian of an infant plaintiff is not subject to arrest for nonpayment of costs adjudged against the infant plaintiff. Granholm v. Sweigle, 3 N.D. 476, 57 N.W. 509, 1893 N.D. LEXIS 45 (N.D. 1893).

Theft of Unemployment Benefits.

Prison sentence imposed on defendant for conviction of theft for obtaining unemployment benefits to which he was not entitled by means of false statements concerning his eligibility for benefits did not constitute imprisonment for debt since the sentence was imposed for the theft and not for failure to refund the benefits as required by section 52-06-33. State v. Hatch, 346 N.W.2d 268, 1984 N.D. LEXIS 260 (N.D. 1984).

Collateral References.

Constitutional Law 83(3).

16B Am. Jur. 2d, Constitutional Law, §§ 627-633.

16A C.J.S. Constitutional Law, §§ 710-719.

Constitutional provision against imprisonment for debt as applicable to nonpayment of tax, 48 A.L.R.3d 1324.

Validity, construction, and effect of body execution statutes allowing imprisonment based on judgment, debt, or the like — modern cases, 79 A.L.R.4th 232.

Access to Highway.

A landowner whose property abuts property taken by eminent domain for construction of a limited access highway has a right to reasonable, but not unlimited, ingress and egress to the property, and that right cannot be taken by the state without just compensation. Chandler v. Hjelle, 126 N.W.2d 141, 1964 N.D. LEXIS 81 (N.D. 1964).

In acquiring access control rights pursuant to N.D.C.C. § 24-01-32 for a controlled access project, the state does not necessarily acquire the right to indiscriminately alter or eliminate access in the future without additional payment of compensation to property owner, but merely pays for damage suffered as the result of alteration of access arising from that particular project; whether property owner is entitled to additional compensation for subsequent alteration of access after state has acquired access control rights depends on whether the subsequent alteration made access unreasonable or substantially more unreasonable, and whether the interference with access caused by the subsequent alteration was within the contemplation of the parties at the time the state acquired the access control rights. Filler v. Minot, 281 N.W.2d 237, 1979 N.D. LEXIS 259 (N.D. 1979).

Accrual of Action.

If property is damaged by public improvement, the cause of action arises when the property is damaged. Maragos v. Minot, 191 N.W.2d 570, 1971 N.D. LEXIS 106 (N.D. 1971).

Appeal on Damages.

A landowner after a taking of right of way by a department of the state may appeal on the question of damages in the manner provided by statute. Cowl v. Wentz, 107 N.W.2d 697, 1961 N.D. LEXIS 63 (N.D. 1961).

An appeal on the issue of damages from a taking of land pursuant to this section by state highway department for right of way purposes should be tried in the district court in the manner prescribed for trials under chapter 32-15, and the trial court, in a proper case, is governed by section 32-15-22(4). Wentz v. Pletka, 108 N.W.2d 337, 1961 N.D. LEXIS 66 (N.D. 1961).

Buried Water Line.

While safety considerations may not be as great in the case of a buried water line as with some of the other types of lines restricted, N.D.C.C. § 24-01-42 is not clearly arbitrary and unreasonable having no substantial relation to the public health, safety, morals or public welfare, because it tends to promote sound and efficient highway planning, safety, and the public welfare, and in limited circumstances, reducing the cost of possible future highway expansion is a permissible objective. Grand Forks-Traill Water Users v. Hjelle, 413 N.W.2d 344, 1987 N.D. LEXIS 415 (N.D. 1987).

City Use of Railroad Property.

A railroad is not entitled to damages for structural changes necessary when a city condemns a part of the right of way for a street. The damages allowed in such cases are for the diminution in value of its exclusive right to the use of the condemned property for railway purposes. City of Grafton v. S. Paul, M. & M. Ry., 16 N.D. 313, 113 N.W. 598, 1907 N.D. LEXIS 59 (N.D. 1907).

Condemnation by Highway Department.

This section, as amended in 1956, and the subsequent statute N.D.C.C. § 24-01221, 1957 Supp., superseded N.D.C.C. §§ 24-0118, 24-0119 and 24-0123, making them inoperative, inapplicable and of no effect insofar as the state or any of its agencies are concerned seeking to acquire right of way. Kuecks v. Cowell, 97 N.W.2d 849, 1959 N.D. LEXIS 94 (N.D. 1959).

Consequential Damages to Property Not Taken.

Where the city acquires property by eminent domain for public improvement, such city is liable for any damages resulting from the project which are not caused by the contractor’s negligence, even though the construction is under the control of the federal government, and even though the property damaged was not taken. Wilson v. Fargo, 141 N.W.2d 727, 1965 N.D. LEXIS 103 (N.D. 1965).

Constitutional guarantee is, in effect, an implied contract by state to compensate for damage which it has caused and is applicable even though no condemnation proceedings have been brought. Jamestown Plumbing & Heating Co. v. Jamestown, 164 N.W.2d 355, 1968 N.D. LEXIS 92 (N.D. 1968).

Real property owner is entitled to compensation for consequential damages to his property caused by the construction of public power transmission facilities upon the land of adjoining property owners if he has suffered an injury to his property different in kind from that suffered in common by the public. United Power Ass'n v. Heley, 277 N.W.2d 262, 1979 N.D. LEXIS 200 (N.D. 1979).

Costs.

A landowner who resists the taking of his land for public purposes upon a failure to agree upon the value thereof, and recovers judgment therefor, is entitled to recover his taxable costs in the action. Petersburg Sch. Dist. v. Peterson, 14 N.D. 344, 103 N.W. 756, 1905 N.D. LEXIS 44 (N.D. 1905).

The requirement that full compensation shall be paid to owners before taking their property for public use includes the cost of trial and appeal. Mountrail County v. Wilson, 27 N.D. 277, 146 N.W. 531, 1914 N.D. LEXIS 45 (N.D. 1914).

Creation of Highways by Prescription.

The public may condemn and may prescribe rules of evidence under which a dedication will be presumed after an uninterrupted use by the public for a certain number of years, provided the owner knew that a failure by him to interfere would be used in evidence against him. Burleigh County v. Rhud, 23 N.D. 362, 136 N.W. 1082, 1912 N.D. LEXIS 104 (N.D. 1912).

Damages for Negligence.

This section does not deal with damages resulting from the negligence of public corporations or their agents but only with those damages that are a consequence of the power of eminent domain. Hamilton v. Bismarck, 71 N.D. 321, 300 N.W. 631, 1941 N.D. LEXIS 173 (N.D. 1941).

If private property is taken or damaged for public use, compensation must be made in all cases regardless of the fact that such damage is the result of negligence or other tort. Kinnischtzke v. City of Glen Ullin, 79 N.D. 495, 57 N.W.2d 588, 1953 N.D. LEXIS 57 (N.D. 1953).

Burden of proving that design of state-owned bridge and roadway proximately caused an increase in the velocity of water flowing from an unprecedented rainfall resulting in damage to plaintiff’s land rested upon plaintiff. Frank v. County of Mercer, 186 N.W.2d 439, 1971 N.D. LEXIS 174 (N.D. 1971).

No showing of negligence is required in an action proceeding under an eminent domain theory based on this section. Undlin v. Surrey, 262 N.W.2d 742, 1978 N.D. LEXIS 213 (N.D. 1978).

Effect of Restriction.

In determining whether a restriction constitutes a taking, courts look to the effect of the restriction on the parcel of land as a whole, rather than to the effect on individual interests in the land. Grand Forks-Traill Water Users v. Hjelle, 413 N.W.2d 344, 1987 N.D. LEXIS 415 (N.D. 1987).

Bars did not suffer an unconstitutional taking of property without just compensation when the city enacted ordinances that prohibited businesses that served alcohol from also offering adult entertainment, and allowed adult entertainment establishments to operate only in certain zoned areas, and therefore the city was properly granted summary judgment, because: (1) the ordinances advanced a legitimate government interest in reducing the secondary effects of adult entertainment establishments; (2) any investment-backed expectations held by the bars were neither legitimate nor reasonable; (3) the economic impact on the bars was not appreciable in a constitutional sense; and (4) the bars could not claim that the ordinances deprived them of all economically viable use of their property, as they could continue to operate bars in their present location, relocate and offer adult entertainment without an alcoholic beverage license, or convert their businesses to unregulated enterprises. McCrothers Corp. v. City of Mandan, 2007 ND 28, 728 N.W.2d 124, 2007 N.D. LEXIS 21 (N.D. 2007).

Eminent Domain.

The right of eminent domain is an attribute of sovereignty and does not require or depend upon a constitutional grant or recognition; the right of eminent domain may, however, be limited or restricted by constitutional provisions, and the time, manner, and occasion of the exercise of the power of eminent domain are wholly in the control and discretion of the legislature, except as it is restrained by the Constitution of the state. Johnson v. Wells County Water Resource Bd., 410 N.W.2d 525, 1987 N.D. LEXIS 389 (N.D. 1987).

Foreclosure of Mechanic’s Lien.

This section does not authorize the maintenance of a suit against the state to foreclose a mechanic’s lien on a house, the state claiming an interest in the house and realty on which it is located. Dunham Lumber Co. v. Gresz, 70 N.D. 455, 295 N.W. 500, 1940 N.D. LEXIS 193 (N.D. 1940), overruled in part, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

Future Use of Property.

Prohibiting a landowner, and thus his lessee or grantee, from constructing any electrical supply or communication line, or other pipeline within 100 feet of the center line of a state highway without the highway commissioner’s consent upon pain of removal at the expense of the utility, when such removal is required for highway expansion does nothing more than regulate one particular future use of property while leaving available to the property owner all other uses; thus, these sections do not prohibit all or substantially all reasonable uses of the regulated property as a whole, and are not “a taking” pursuant to this section. Grand Forks-Traill Water Users v. Hjelle, 413 N.W.2d 344, 1987 N.D. LEXIS 415 (N.D. 1987).

Governmentally Caused Flooding.

A landowner cannot receive compensation for a permanent taking or permanent damaging of his property due to governmentally caused flooding of the property unless it is proven that there will be frequent inevitable recurrences of the flooding. Arneson v. Fargo, 331 N.W.2d 30, 1983 N.D. LEXIS 247 (N.D. 1983).

Highway Easement.

The owner of property taken under the power of eminent domain for a highway easement was entitled to severance damages equal to the diminution in value of his remaining property, where the property owner satisfied his burden of proof by presenting testimony of an experienced independent appraiser who testified that he used a comparable sales approach for appraising the property and that in his opinion the remaining property’s value was diminished because the best location for a homesite was within 50 ft. of the easement. Dutchuk v. Board of County Comm'rs, 429 N.W.2d 21, 1988 N.D. App. LEXIS 4 (N.D. Ct. App. 1988).

Illegal Taking of Land.

One whose land is taken illegally for a public purpose may treat the condemnation as legal and thereafter bring an action for compensation. Schilling v. Carl Township, 60 N.D. 480, 235 N.W. 126, 1931 N.D. LEXIS 193 (N.D. 1931), overruled in part, Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

State’s investigation into a taxpayer corporation’s parimutuel gambling activities and commencement of civil and criminal actions against the taxpayer did not constitute a taking of property without just compensation under the takings clauses of N.D. Const. art. I, §§ 3, 16. Bala v. State, 2010 ND 164, 787 N.W.2d 761, 2010 N.D. LEXIS 164 (N.D. 2010).

Improper Notice.

N.D.C.C. § 24-01-22.1 clearly requires that the notice advise a landowner that a deposit has been made for a taking of right of way; therefore, where the notice to landowner did not advise him that his property was being taken, rather merely informed him that the county was offering to purchase the land and that one thousand forty-five dollars had been deposited with the clerk of court, the statutory requirements had not been met, and the thirty-day appeal period did not begin. Aalund v. Williams County, 442 N.W.2d 900, 1989 N.D. LEXIS 132 (N.D. 1989).

Inapplicability of Appellate Procedure.

Although the constitution and statutes use the term “appeal” to describe this procedure in quick-take proceedings, the court recognizes that it is not, in fact, an appeal from a lower court to a higher court; the “appeal” envisioned by these proceedings is, rather, the first step in a judicial proceeding; therefore, N.D.R.App.P. 3(c), specifying the contents of a notice of appeal in appellate proceedings, does not apply. Aalund v. Williams County, 442 N.W.2d 900, 1989 N.D. LEXIS 132 (N.D. 1989).

Injunction Appealable.

Because the quick take procedure was an issue that had significant constitutional underpinnings for governmental entities, appellate review of a temporary injunction was allowed, despite the lack of certification under N.D.R.Civ.P. 54. Eberts v. Billings County Bd. of Comm'rs, 2005 ND 85, 695 N.W.2d 691, 2005 N.D. LEXIS 93 (N.D. 2005).

Inverse Condemnation.

City’s denial of a building permit to property owner because a portion of his property was a drainage ditch constituted an inverse condemnation of the property where the denial of the building permit, together with the existing zoning regulations, limited the use of the property to a park or playground and had the effect of either converting or expanding the use of the property as a drainage ditch, which constituted a taking for public use. Kraft v. Malone, 313 N.W.2d 758, 1981 N.D. LEXIS 348 (N.D. 1981), overruled, Shark v. Thompson, 373 N.W.2d 859, 1985 N.D. LEXIS 387 (N.D. 1985).

Landowner was deprived of all reasonable use of his property and was entitled to just compensation for a taking by inverse condemnation where a city enacted a zoning ordinance which dedicated his property solely for governmental uses and specifically prohibited any residential, commercial and industrial uses of the property; if city rescinds the ordinance he is entitled to compensation only for a temporary taking measured by the time period between the date the ordinance took effect and the date it was rescinded, and if city retains the ordinance he would be entitled to compensation for a permanent taking of his property. Rippley v. Lincoln, 330 N.W.2d 505, 1983 N.D. LEXIS 248 (N.D. 1983).

Where dam in drain which was part of public diversion facility restricted drainage of surface waters from landowner’s farmland, thereby resulting in a permanent diminution in the value of the property, the ever-present obstacle to surface water drainage caused by the dam’s existence constituted a permanent taking of a flood easement on landowner’s property for which landowner was entitled to compensation. Arneson v. Fargo, 331 N.W.2d 30, 1983 N.D. LEXIS 247 (N.D. 1983).

Property owner failed to establish a rezoning ordinance constituted a taking or damaging of his property without just compensation by means of inverse condemnation where he made no claim the ordinance forbade substantially all use of his property and he failed to establish substantial expenditure in reliance on the zoning ordinance in existence prior to the rezoning. Minch v. Fargo, 332 N.W.2d 71, 1983 N.D. LEXIS 279 (N.D.), cert. denied, 464 U.S. 829, 104 S. Ct. 105, 78 L. Ed. 2d 108, 1983 U.S. LEXIS 1226 (U.S. 1983).

City’s refusal to annex property and zone it for apartment buildings did not deprive the owner of all or substantially all reasonable uses of the land; although its value for future residential development was hampered by its proximity to a railroad, that adverse consequence was present long before, and was not caused by, the city’s failure to annex the property. Braunagel v. City of Devils Lake, 2001 ND 118, 629 N.W.2d 567, 2001 N.D. LEXIS 141 (N.D. 2001).

City’s 21-month moratorium on issuing building permits did not constitute a per se categorical taking of the developer’s property. The developer had difficulty selling any lots from the very beginning of its existence and sold more lots at higher prices after the moratorium was lifted. City officials acted in good faith and with proper diligence concerning the moratorium. Wild Rice River Estates, Inc. v. City of Fargo, 2005 ND 193, 705 N.W.2d 850, 2005 N.D. LEXIS 237 (N.D. 2005), cert. denied, 547 U.S. 1130, 126 S. Ct. 2039, 164 L. Ed. 2d 783, 2006 U.S. LEXIS 3923 (U.S. 2006).

In an inverse condemnation action under N.D. Const. art. I, § 16, the State of North Dakota was not liable to 100 landowners who claimed that government drainage projects caused their properties to flood above the ordinary high watermark of an adjacent lake because an act of God, in the form of an unprecedented wet cycle, was the sole proximate cause of their damages. Aasmundstad v. State, 2008 ND 206, 763 N.W.2d 748, 2008 N.D. LEXIS 236 (N.D. 2008).

District court did not err in determining that the six-year statute of limitations for contract actions under N.D.C.C. § 28-01-16(1) applied to the landowners’ inverse condemnation claims; an inverse condemnation action based upon N.D. Const. art. I, § 16 was an action upon an implied contract for compensation and was governed by the six-year statute of limitations for an action upon contract. Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

District court erred in ordering summary judgment for a city in the owners' action for inverse condemnation because, while there was no dispute over the need to construct earthen dikes to protect the city from flooding, a question of fact existed as to whether the imminent danger facing the city gave rise to an actual necessity to take the owners' property where the city had contracted with property owners for clay to be used in constructing the dikes prior to the flood, but did not contract, obtain permission, or pay compensation to the owners for removal of the clay from their property. Irwin v. City of Minot, 2015 ND 60, 860 N.W.2d 849, 2015 N.D. LEXIS 68 (N.D. 2015).

District court properly affirmed an Industrial Commission order granting a lessee's application to terminate existing oil and gas well spacing units, to create new spacing units, and to modify well setback requirements for portions of two spacing units because one lease specifically authorized the lessee to seek reunitization, the proposed spacing units and well configurations would prevent waste and the drilling of unnecessary wells, the surface owner did not have a right to a guaranteed share of production, the estimated reduction did not establish that the owner's correlative rights were violated, and appeals from administrative agency decisions could not be turned into inverse condemnation actions. Langved v. Cont'l Res., Inc., 2017 ND 179, 899 N.W.2d 267, 2017 N.D. LEXIS 179 (N.D. 2017).

Liability of State and Its Agencies.

Under this section private property cannot be taken for public use for right of way without just compensation in money being made to, or paid into court for, the owner, even though it is sought to be taken by a municipal corporation. Martin v. Tyler, 4 N.D. 278, 60 N.W. 392, 25 L.R.A. 838 (1894), decided prior to the adoption of Art. 1, § 16 of the N.D. Const.

This section fixes upon a civil township that takes or damages private property for public use a liability to render just compensation therefor to the owner. Township of Noble v. Aasen, 8 N.D. 77, 76 N.W. 990, 1898 N.D. LEXIS 11 (N.D. 1898).

A township whose officers took possession of plaintiff’s land in an improper manner for a public road was liable for just compensation. Schilling v. Carl Township, 60 N.D. 480, 235 N.W. 126, 1931 N.D. LEXIS 193 (N.D. 1931), overruled in part, Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

Where a state or an agency of the state acting in a sovereign capacity, takes or damages private property for public use without legal exercise of the power of eminent domain, the party aggrieved may recover compensation. Jacobson v. State, 68 N.D. 259, 278 N.W. 652, 1938 N.D. LEXIS 104 (N.D. 1938).

License.

A license in real property does not constitute personal property and the holder of the license is not entitled to compensation upon condemnation of the real property. Lee v. North Dakota Park Serv., 262 N.W.2d 467, 1977 N.D. LEXIS 186 (N.D. 1977).

Market Value.

In proving the value of property for purposes of compensation under this section, evidence of an alleged offer to buy the property in question at a particular price is not admissible. Geck v. Wentz, 133 N.W.2d 849, 1964 N.D. LEXIS 153 (N.D. 1964).

Measure of Damages.

If property is taken from the owner for a public use he is entitled to recover the value of the property and any and all damages, whether they be direct or consequential. Williams v. Fargo, 63 N.D. 183, 247 N.W. 46, 1933 N.D. LEXIS 169 (N.D. 1933).

Where injuries to property are a consequence of the exercise of the power of eminent domain, but the property is not taken and the damage is not caused by the negligence of the contractor, the measure of damages is the diminution in market value of the property. Wilson v. Fargo, 141 N.W.2d 727, 1965 N.D. LEXIS 103 (N.D. 1965).

Where property is damaged by public works but no part of property is taken, measure of damages is difference between fair market value before and after infliction of damage. Jamestown Plumbing & Heating Co. v. Jamestown, 164 N.W.2d 355, 1968 N.D. LEXIS 92 (N.D. 1968).

The measure of damages for trade fixtures which can be removed without substantial injury to the freehold and to which the tenant has a right of removal, is the difference in value between the trade fixtures in place and their salvage value as severed; such test does not indicate the items can only be used for scrap purposes, but takes into account the value of the property in a definable secondhand market for such used equipment. Schnaible v. Bismarck, 275 N.W.2d 859, 1979 N.D. LEXIS 209 (N.D. 1979).

If a landowner proves that a governmental regulation, such as a zoning ordinance, has deprived him of all reasonable use of his property, and where the governmental body chooses to rescind the ordinance or regulation, the landowner is entitled to just compensation only for a temporary taking measured by the time period between the date the ordinance or regulation took effect and the date it was rescinded; however, if the governmental body chooses to retain the ordinance or regulation the landowner is then entitled to just compensation for a permanent taking of his property. Rippley v. Lincoln, 330 N.W.2d 505, 1983 N.D. LEXIS 248 (N.D. 1983).

Municipal Nuisance.

A municipal act constituting a nuisance may be subject to the constitutional provision that private property cannot be taken or damaged for public use without compensation, regardless of § 7321, C.L. 1913, providing that nothing done under express authority of a statute shall be deemed a nuisance. Messer v. Dickinson, 71 N.D. 568, 3 N.W.2d 241, 1942 N.D. LEXIS 92 (N.D. 1942).

Notice of Appeal.

Letter which clearly informed the county that landowner was declining the offered sum and unambiguously expressed his intent to appeal the matter to district court for the purposes of a quick-take proceeding was a valid notice of appeal. Aalund v. Williams County, 442 N.W.2d 900, 1989 N.D. LEXIS 132 (N.D. 1989).

Parking on Public Streets.

Landowner has no vested property right in being able to park on public streets abutting his land; a no parking ordinance prohibiting parking on a public street does not constitute a taking or damaging of private property of the abutting landowner, and such landowner is not entitled to compensation under this section for any decrease in value of his property caused by the no parking prohibition. Yegen v. Bismarck, 291 N.W.2d 422, 1980 N.D. LEXIS 208 (N.D. 1980).

Payment by City Warrant.

The payment into court of a city warrant for property condemned is improper since this section requires money to be paid to, or into court for, the owner. City of Minot v. Olson, 42 N.D. 246, 173 N.W. 458, 1919 N.D. LEXIS 156 (N.D. 1919).

Presumption of Payment.

If nothing to the contrary appears, it will be presumed that where an easement for a highway was granted, compensation was at the same time taken or the right thereto waived for such damage as might result from the ordinary and reasonable use of the property in the manner contemplated and for the purpose for which the easement was granted. King v. Stark County, 67 N.D. 260, 271 N.W. 771, 1937 N.D. LEXIS 79 (N.D. 1937).

Prohibition of Parking Meters by State.

The statute which prohibits the maintenance of parking meters within the state does not violate this section of the Constitution. City of Fargo v. Sathre, 76 N.D. 341, 36 N.W.2d 39, 1949 N.D. LEXIS 60 (N.D. 1949).

Property Abutting Street or Highway.

—Change of Grade.

In constructing a public improvement, relocating a highway grade eroded by washouts, a county acts as an agency of the state and becomes obligated to the landowner upon “implied contract” for land taken and damaged under the provisions of this section. Little v. Burleigh County, 82 N.W.2d 603, 1957 N.D. LEXIS 118 (N.D. 1957).

Before a city can be held liable for damages to abutting property owners for change of a street grade, it is essential that such property owners be shown to have made permanent improvements to conform to a grade established for such streets as provided by law, and that damages be shown to have resulted from a change of such established grade. Kenner v. Minot, 98 N.W.2d 901, 1959 N.D. LEXIS 111 (N.D. 1959).

There is no liability against a city in favor of an abutting property owner for damages caused by bringing a street down or up to a grade line the first time it is established, unless the improvement is such that it could not have been reasonably anticipated by the owners. Kenner v. Minot, 98 N.W.2d 901, 1959 N.D. LEXIS 111 (N.D. 1959).

—Easement of Light, Air and Access.

An abutting property owner is entitled to recover for injuries arising from interference with his easements of light, air and access when the interference is caused by lawful improvement in a manner which could not have been anticipated at the time of dedication. Cummings v. Minot, 67 N.D. 214, 271 N.W. 421, 1937 N.D. LEXIS 75 (N.D. 1937).

Landowners abutting a proposed erection of an overpass are entitled to an injunction restraining the city from erecting such overpass until compensation for damage to their abutting property resulting from such construction has been made to or paid into court for the owner. Cummings v. Minot, 67 N.D. 214, 271 N.W. 421, 1937 N.D. LEXIS 75 (N.D. 1937).

An abutting property owner is not entitled to recover for injuries arising from interference with his easements of light, air and access when such improvement is such that it could, and should, have been reasonably anticipated by the owners. Kenner v. Minot, 98 N.W.2d 901, 1959 N.D. LEXIS 111 (N.D. 1959).

—Highway Improvement.

The highways belong to the state, and the state, acting in its sovereign capacity may grade and improve the highways on the section lines as in its judgment may be necessary for the convenience and safety of the public, without liability for compensation to the abutting landowner. King v. Stark County, 66 N.D. 467, 266 N.W. 654, 1936 N.D. LEXIS 189, 1936 N.D. LEXIS 190 (N.D. 1936).

If the highway is built and improved in a manner that cannot reasonably be said to have been within the contemplation of the parties at the time of the grant, then the owner is entitled to a recovery for the damages resulting from such building and improvement. King v. Stark County, 67 N.D. 260, 271 N.W. 771, 1937 N.D. LEXIS 79 (N.D. 1937).

—Railroad Construction.

An abutting lot owner owns the fee to one-half the street, and a steam railroad is an additional burden upon the interests of the lot owner, so that damages may be recovered for depreciation in the value of the lot. Gram Constr. Gram Constr. Co. v. Minneapolis, S. P. & S. S. M. Ry., 36 N.D. 164, 161 N.W. 732, 1916 N.D. LEXIS 184 (N.D. 1916).

—Utility Poles.

The construction and operation of a telegraph and telephone line upon a rural highway is not a highway use within the original dedication of the highway, but is a new use and constitutes an additional servitude upon the fee of the abutting owner for which he is entitled to compensation. Cosgriff v. Tri-State Tel. & Tel. Co., 15 N.D. 210, 107 N.W. 525, 1906 N.D. LEXIS 40 (N.D. 1906).

Public Uses.

The use of property reasonably necessary for the construction, maintenance, or operation of a railroad is a public use. Northern Pac. Ry. v. Kreszeszewski, 17 N.D. 203, 115 N.W. 679 (N.D. 1908).

Where the plaintiff delivered structural steel to the defendant for the purpose of erecting a gymnasium and such structure was in fact built but the defendant refused to pay for the steel incorporated therein, there was not a taking of private property for public use without just compensation. St. Paul Foundry Co. v. Burnstad Sch. Dist., 70 N.D. 403, 295 N.W. 659, 1940 N.D. LEXIS 186 (N.D. 1940).

The elimination of slums and the erection of safe and sanitary low rent dwelling units for persons of low income for the purpose of advancing the public welfare and protecting the public safety and morals are public uses. Ferch v. Housing Auth., 79 N.D. 764, 59 N.W.2d 849, 1953 N.D. LEXIS 76 (N.D. 1953).

City exercising authority to create pedestrian mall in business district street under N.D.C.C. § 40-62-01 must initiate eminent domain proceedings to ascertain damages which would compensate for impairment of light, air, view, and access to abutting property owners because of the attachment of the structure of a mall to buildings. City of Fargo v. Fahrlander, 199 N.W.2d 30, 1972 N.D. LEXIS 155 (N.D. 1972).

The following elements must be present for a public use to exist in the state where property sought to be condemned is located: (1) the public must have either a right to benefit guaranteed by regulatory control through a public service commission or an actual benefit; (2) although other states may also be benefited, the public in the state which authorizes the taking must derive a substantial and direct benefit greater than an indirect advantage; and (3) the public benefit, while not confined exclusively to the state authorizing the use, must be inextricably attached to its territorial limits because the state’s sovereignty is also so constrained. Square Butte Elec. Coop. v. Hilken, 244 N.W.2d 519, 1976 N.D. LEXIS 233 (N.D. 1976).

Where power cooperative sought to condemn an easement upon which to run its power lines from the generating plant in North Dakota to Duluth, Minnesota, where all the power output would, at least initially, be used, the facts that the cooperative, through a series of option and power pooling agreements, might in the future market its electricity inside North Dakota and would from the beginning provide reserve capacity for North Dakota plants and reduce the incidence of “low frequency oscillations” which sometimes interrupted service in the state were sufficient to show that the easement would be a “public use” within meaning of this section. Square Butte Elec. Coop. v. Hilken, 244 N.W.2d 519, 1976 N.D. LEXIS 233 (N.D. 1976).

North Dakota Energy Conversion and Transmission Facility Act, N.D.C.C. ch. 49-22, requirement that utility obtain public service commission’s approval of site compatibility before exercising eminent domain rights to obtain property for construction of energy conversion or transmission facilities does not alter, supplant or supplement the requirement that a judicial determination of use and necessity of the proposed taking be made. United Power Ass'n v. Moxness, 267 N.W.2d 814, 1978 N.D. LEXIS 139 (N.D. 1978).

The stimulation of commercial growth and removal of economic stagnation sought by N.D.C.C. ch. 40-58 are objectives that satisfy the public use and purpose requirement of N.D. Const., Art. I, § 16 and U.S. Const., Amend. V. City of Jamestown v. Leevers Supermarkets, 552 N.W.2d 365, 1996 N.D. LEXIS 191 (N.D. 1996).

Quick Take Provision.

The quick take provision was added to the constitution, not to grant power to the agencies, but to remove the limitation imposed by judicial construction on the authority of the legislature to enact quick take statutes if the Legislature chose to do so; it must remain inoperative until the Legislature takes advantage of it. The provision is not self-executing. Johnson v. Wells County Water Resource Bd., 410 N.W.2d 525, 1987 N.D. LEXIS 389 (N.D. 1987).

Without legislation specifically granting quick take authority to the county water resource board to carry into effect the quick take provision of this section, the board lacks authority to acquire flowage easements through the quick take provision of the constitution in its exercise of the power of eminent domain conferred upon it in N.D.C.C. § 61-16.1-09. Johnson v. Wells County Water Resource Bd., 410 N.W.2d 525, 1987 N.D. LEXIS 389 (N.D. 1987).

N.D.C.C. § 24-01-01 and N.D.C.C. §§ 24-05-09 through 24-05-15 authorizes a board to condemn property for roads using quick take procedures under N.D. Const. art. I, § 16; therefore, a trial court erred by granting a temporary injunction restraining a board of commissioners from surveying or condemning land for use as a public road, which constituted a public use. Eberts v. Billings County Bd. of Comm'rs, 2005 ND 85, 695 N.W.2d 691, 2005 N.D. LEXIS 93 (N.D. 2005).

Regulation of Oil and Gas Operations.

The police powers of the state are properly exercised when the industrial commission orders spacing or compels pooling of oil and gas operations under N.D.C.C. § 38-08-08, and the property law of trespass is necessarily superseded and does not affect those authorized operations. Continental Resources v. Farrar Oil Co., 1997 ND 31, 559 N.W.2d 841, 1997 N.D. LEXIS 30 (N.D. 1997).

Relocation Assistance Act Payments.

Compensation under the Model Relocation Assistance Act, N.D.C.C. ch. 54-01.1, does not necessarily exclude compensation under this section; where compensation under the Model Relocation Assistance Act and this section arises from the same injury, double compensation for the same injury is not permitted, but where the basis for compensation arises from a different injury or theory, the property owner is not precluded from seeking compensation under both this section and the Model Relocation Assistance Act. Schnaible v. Bismarck, 275 N.W.2d 859, 1979 N.D. LEXIS 209 (N.D. 1979).

Acceptance by property owner of an “in lieu” of relocation payment under N.D.C.C. § 54-01.1-03 did not waive the owner’s right to compensation for damages to trade fixtures caused by a condemnation, since the compensation under N.D.C.C. § 54-01.1-03 was for a separate and distinct economic loss than that compensated by this section. Schnaible v. Bismarck, 275 N.W.2d 859, 1979 N.D. LEXIS 209 (N.D. 1979).

Right of Way.

The term “right of way” includes land required to provide a sewage lagoon in conjunction with sanitary facilities at an interstate highway rest area. Tormaschy v. Hjelle, 210 N.W.2d 100, 1973 N.D. LEXIS 109 (N.D. 1973).

Right to Compensation.

Property owner is entitled to just compensation for property taken or damaged as a result of a condemnation, and is not limited just to property taken. Schnaible v. Bismarck, 275 N.W.2d 859, 1979 N.D. LEXIS 209 (N.D. 1979).

Rights Acquired by Contract.

Where the right to take or damage private property for public use is acquired by contract, and nothing to the contrary appears, the acquisition is presumed to be accompanied by the same rights as though the power of eminent domain had been exercised in accordance with the statutory and constitutional provisions. Hamilton v. Bismarck, 71 N.D. 321, 300 N.W. 631, 1941 N.D. LEXIS 173 (N.D. 1941).

Section Line Easement.

Where property condemned by state was described by metes and bounds, state did not become fee simple owner of section line easement, although damages sustained by landowner could be equivalent of state taking fee simple title. Minot Sand & Gravel Co. v. Hjelle, 231 N.W.2d 716, 1975 N.D. LEXIS 112 (N.D. 1975).

Trade Fixtures.

Trade fixtures are considered as realty for which the condemnor must make just compensation when such fixtures are taken or damaged as a result of a condemnation; where tenant removed trade fixtures from the condemned property after the condemnation, he was entitled to compensation for damage to the trade fixtures caused by the condemnation, and the removal of the fixtures did not deny him such right to compensation. Schnaible v. Bismarck, 275 N.W.2d 859, 1979 N.D. LEXIS 209 (N.D. 1979).

Trial of Issues.

All issues in a condemnation action, except the issue of compensation, are triable by the court, without a jury. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570 (1896), distinguished, City of Grafton v. S. Paul, M. & M. Ry., 16 N.D. 313, 113 N.W. 598, 1907 N.D. LEXIS 59 (N.D. 1907); County of Pembina v. Nord, 78 N.D. 473, 49 N.W.2d 665, 1951 N.D. LEXIS 105 (N.D. 1951).

The question of necessity of taking private property for public use is one for determination by the courts, but is triable to the court without a jury. County of Pembina v. Nord, 78 N.D. 473, 49 N.W.2d 665, 1951 N.D. LEXIS 105 (N.D. 1951).

Determination of what constitutes just compensation is a question for the jury, unless the right to a jury is waived; only function of a jury in an eminent domain action is to assess damages. Hultberg v. Hjelle, 286 N.W.2d 448, 1979 N.D. LEXIS 321 (N.D. 1979).

Whether or not there is a taking of private property for a public use is a question of law; however, where there is a dispute of the facts showing the alleged taking or damaging of property, there must be a hearing before the trial court on that fact question before the court can determine the question of law. Minch v. Fargo, 332 N.W.2d 71, 1983 N.D. LEXIS 279 (N.D.), cert. denied, 464 U.S. 829, 104 S. Ct. 105, 78 L. Ed. 2d 108, 1983 U.S. LEXIS 1226 (U.S. 1983).

District court erred in determining that there was no taking where mineral interest had value, undisputed evidence showed that the successors-in-interest had leased the minerals numerous times since conveying the surface property to the United States, and the successors had not been compensated for the mineral interests. Wilkinson v. Bd. of Univ. & Sch. Lands, 2017 ND 231, 903 N.W.2d 51, 2017 N.D. LEXIS 235 (N.D. 2017).

U.S. Constitution.

This section is broader than the guarantee of the Fifth Amendment to the United States Constitution.Grand Forks-Traill Water Users v. Hjelle, 413 N.W.2d 344, 1987 N.D. LEXIS 415 (N.D. 1987).

Waiver of Rights.

The right to assert the unconstitutionality of a statute which was in force prior to the adoption of this section of the constitution was waived by participation in the proceedings prescribed by it. Minneapolis, S. P. & S. S. M. Ry. v. Nester, 3 N.D. 480, 57 N.W. 510, 1893 N.D. LEXIS 46 (N.D. 1893).

Mere acquiescence by a property owner in the establishment of a road will not in itself amount to a waiver of the right to a determination of damages. Rothecker v. Wolhowe, 39 N.D. 96, 166 N.W. 515, 1918 N.D. LEXIS 6 (N.D. 1918).

A landowner does not waive the right to just compensation by permitting a township to take his land by irregular means. Schilling v. Carl Township, 60 N.D. 480, 235 N.W. 126, 1931 N.D. LEXIS 193 (N.D. 1931), overruled in part, Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

An owner may bring an action against a township for compensation for land taken contrary to the statute any time before the town’s acquisition of title. Schilling v. Carl Township, 60 N.D. 480, 235 N.W. 126, 1931 N.D. LEXIS 193 (N.D. 1931), overruled in part, Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

Water Rights Statute.

N.D.C.C. § 61-01-01 declaring that all waters in state belong to public and are subject to appropriation for beneficial use does not violate this provision. Baeth v. Hoisveen, 157 N.W.2d 728, 1968 N.D. LEXIS 108 (N.D. 1968).

When Compensation Due, Interest.

Where the establishment, maintenance, and operation of a city dump results in permanent injury to real property, and no compensation has been made before the property is damaged, the owner is entitled to compensation for the amount of damage to his property as of the date of invasion as well as interest from that date. Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808, 1942 N.D. LEXIS 94 (N.D. 1942).

Where property is taken or damaged for a public use without just compensation having been first made, payment is legally due the owner as of the date of the taking or damaging of the property and interest should be given from the date when the property is taken or damaged. Lineburg v. Sandven, 74 N.D. 364, 21 N.W.2d 808, 1946 N.D. LEXIS 68 (N.D. 1946).

Zoning Regulations.

State, acting through its police powers, has broad authority to enact reasonable land-use regulations without compensating property owner for the restrictions placed on the use of the property; absent a land-use regulation exceedingly onerous on its face, actual physical conduct inconsistent with the property rights of the landowner, or governmental precondemnation regulatory activity designed to facilitate subsequent eminent domain proceedings, an action for inverse condemnation by the property owner is inappropriate to challenge the validity of a zoning ordinance. Eck v. Bismarck, 283 N.W.2d 193, 1979 N.D. LEXIS 295 (N.D. 1979).

District court’s injunction enjoining landowners from parking heavy construction equipment on their premises pursuant to a city’s zoning ordinance was not an unconstitutional taking of the landowners’ property without just compensation as the landowners had no legitimate or reasonable investment-backed expectations in essentially using their premises in a commercial rather than a residential manner; the zoning ordinance had been in effect several years before the landowners purchased their residential lot, the injunction did not affect the use of their residential property as a residence in any manner, and the property would not have had any substantial increased marketability or market value if the property was allowed to be used for commercial or industrial use, and the highest and best use of the property was that of a residential home and garage. City of Minot v. Boger, 2008 ND 7, 744 N.W.2d 277, 2008 N.D. LEXIS 10 (N.D. 2008).

Public Uses.

The constitutional guaranty of just compensation for private property taken or damaged for public use applies to a proceeding by the state highway commissioner to condemn land for a gravel pit. Becker County Sand & Gravel Co. v. Wosick, 62 N.D. 740, 245 N.W. 454 (1932), decided prior to the 1956 amendment of former Art. 1, § 14 N.D. Const. (now this section).

Collateral References.

Eminent Domain 1-165.

26 Am. Jur. 2d, Eminent Domain, §§ 1-111.

29A C.J.S. Eminent Domain, §§ 1-255.

Damage to private property caused by negligence of governmental agents as “taking”, “damage”, or “use” for public purposes, in constitutional sense, 2 A.L.R.2d 677.

Spur track and the like as constituting a use for which railroad can validly exercise right of eminent domain, 35 A.L.R.2d 1326.

Abutting owner’s right to damages or other relief for loss of access because of limited-access highway or street, 43 A.L.R.2d 1072; 42 A.L.R.3d 13; 42 A.L.R.3d 148.

Municipal power to condemn land for cemetery, 54 A.L.R.2d 1322.

Electric light or power line in street or highway as additional servitude, 58 A.L.R.2d 525.

Amount of property which may be condemned for public school, 71 A.L.R.2d 1071.

Injunction against exercise of power of eminent domain, 93 A.L.R.2d 465.

Unity of ownership necessary to allowance for severance damage in eminent domain, 95 A.L.R.2d 887.

Right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.

Eminent domain: deduction of benefits in determining compensation or damages in proceedings involving opening, widening, or otherwise altering highway, 13 A.L.R.3d 1149.

Substitute condemnation: Power to condemn property or interest therein to replace other property taken for public use, 20 A.L.R.3d 862.

Eminent domain: “Freezing” ordinance or statutes preventing prospective condemnee from improving or otherwise changing, the condition of his property, 36 A.L.R.3d 751.

Plotting or planning in anticipation of improvement as taking or damaging of property affected, 37 A.L.R.3d 127.

Abutting owner’s right to damages for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 13.

Measure and elements of damage for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 148.

Measure of damages for condemnation of cemetery lands, 42 A.L.R.3d 1314.

Traffic noise and vibration from highway as element of damages in eminent domain, 51 A.L.R.3d 860.

Condemned property’s location in relation to proposed site of building complex or similar improvement as factor in fixing compensation, 51 A.L.R.3d 1050.

Good will or “going concern” value as element of lessee’s compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566.

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking, 59 A.L.R.3d 488.

Eminent domain: consideration of fact that landowner’s remaining land will be subject to special assessment in fixing severance damages, 59 A.L.R.3d 534.

Salting for snow removal as taking or damaging abutting property for eminent domain purposes, 64 A.L.R.3d 1239.

Validity of appropriation of property for anticipated future needs, 80 A.L.R.3d 1085.

Eminent domain: compensability of loss of view from owner’s property—state cases, 25 A.L.R.4th 671.

Eminent domain, unity or contiguity of separate property sufficient to allow damages for diminished value of parcel remaining after taking of other parcel, 59 A.L.R.4th 308.

Measure of damages or compensation in eminent domain as affected by premises being restricted to particular educational, religious, charitable, or noncommercial use, 29 A.L.R.5th 36.

Application of Kelo v. City of New London, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005), to “Public Use” Restrictions in Federal and State Constitutions Takings Clauses and Eminent Domain Statutes. 21 A.L.R.6th 261.

Elements and Measure of Compensation in Eminent Domain Proceeding for Temporary Taking of Property. 49 A.L.R.6th 205.

Zoning Scheme, Plan, or Ordinance as Temporary Taking. 55 A.L.R.6th 635.

What constitutes taking of property requiring compensation under takings clause of Fifth Amendment to United States Constitution—Supreme Court cases, 10 A.L.R. Fed. 2d 231.

Construction and application of “public use” restriction in Fifth Amendment’s Takings Clause—United States Supreme Court Cases, 10 A.L.R. Fed. 2d 407.

Law Reviews.

Land Condemnation: A Comparative Study of North Dakota Statutory Law, Daniel S. Guy, 51 N.D. L. Rev. 387 (1975).

Rights to Ground Water in North Dakota: Trends and Opportunities, 71 N.D. L. Rev. 619 (1995).

The Use of Eminent Domain for Economic Development, 75 N.D. L. Rev. 783 (1999).

Constitutional Law-Inverse Condemnation: Decision that a Temporary Moratorium Does Not Amount to a Compensable Taking Signifies a Victory for Land Use Planners ( Wild Rice River Estates, Inc. v. City of Fargo), 83 N.D. L. Rev. 1053 (2007).

For Article: A Vexatious Problem Among Many: In Light of the Conflict Between the Fifth and Sixteenth Amendments, Is Taxation An Uncompensated Taking?, see 84 N.D. L. Rev. 365 (2008).

For Case Comment: Constitutional Law — Freedom of Speech, Expression: Protecting Main Street? The North Dakota Supreme Court Analyzes Whether an Ordinance Regulating Exotic Dancing and Adult Entertainment Violates Free Speech and Constitutes a Regulatory Taking (McCrothers Corp. v. City Of Mandan, 2007 ND 28, 728 N.W.2d 124), see 84 N.D.L.Rev. 495 (2008).

In General.

A law is not necessarily invalid because it is retroactive, unless it is invalid because it violates the constitutional guaranties that no bill of attainder, ex post facto law, or law impairing the obligations of contract shall ever be passed. State ex rel. Arnot v. Flaherty, 45 N.D. 549, 178 N.W. 790, 1920 N.D. LEXIS 160 (N.D. 1920).

Ex Post Facto Laws.

—Change of Place of Confinement.

The change, by statute, of the place of confinement, pending execution, from the county jail to the state penitentiary, can add no disgrace to a condemned murderer and does not render the act ex post facto as applied to him. State v. Rooney, 12 N.D. 144, 95 N.W. 513, 1903 N.D. LEXIS 18 (N.D. 1903), aff'd, 196 U.S. 319, 25 S. Ct. 264, 49 L. Ed. 494, 1905 U.S. LEXIS 903 (U.S. 1905).

The passage after a conviction of murder of a statute substituting the penitentiary for the county jail as the place of confinement pending execution, and directing that executions thereafter take place within the penitentiary walls, did not increase the punishment of the one convicted of murder in the first degree with the death penalty affixed, and was not ex post facto. State v. Rooney, 12 N.D. 144, 95 N.W. 513, 1903 N.D. LEXIS 18 (N.D. 1903), aff'd, 196 U.S. 319, 25 S. Ct. 264, 49 L. Ed. 494, 1905 U.S. LEXIS 903 (U.S. 1905).

—Extension of Time for Execution.

The extension of time within which an execution may take place after sentence is a mitigation and not an increase of punishment, and does not render the act ex post facto as to one convicted before its passage. State v. Rooney, 12 N.D. 144, 95 N.W. 513, 1903 N.D. LEXIS 18 (N.D. 1903), aff'd, 196 U.S. 319, 25 S. Ct. 264, 49 L. Ed. 494, 1905 U.S. LEXIS 903 (U.S. 1905).

—Sexual Offender Registration.

Retrospective application of the sexual offender registration requirement imposed by N.D.C.C. § 12.1-32-15 is not an ex post facto punishment and does not violate U.S. Constitution. Art. 1, § 10 or this section. State v. Burr, 1999 ND 143, 598 N.W.2d 147, 1999 N.D. LEXIS 176 (N.D. 1999) (compare State v. Breiner, 1997 ND 71, 562 N.W.2d 565, 1997 N.D. LEXIS 73 (N.D. 1997), overruled, State v. Burr, 1999 ND 143, 598 N.W.2d 147, 1999 N.D. LEXIS 176 (N.D. 1999).

Defendant’s argument that N.D.C.C. § 12.1-32-15 was unconstitutional was rejected because it had already been determined that § 12.1-32-15 was not an ex post facto law under U.S. Const. art. I, § 10 and N.D. Const. art. I, § 18. State v. Meador, 2010 ND 139, 785 N.W.2d 886, 2010 N.D. LEXIS 137 (N.D. 2010).

—Statute of Limitations.

An amendment relating to the tolling of the statute limiting a prosecution is applicable to the crime committed prior thereto, where the limitation period had not been completed. State v. Pleason, 56 N.D. 499, 218 N.W. 154, 1928 N.D. LEXIS 163 (N.D. 1928).

Mortgages, Liens and Priorities.

The legislature cannot, by retroactive measures, cure a void mortgage purporting to encumber a homestead, where the wife had not acknowledged the instrument. Acklin v. First Nat'l Bank, 64 N.D. 577, 254 N.W. 769, 1934 N.D. LEXIS 236, 1934 N.D. LEXIS 237 (N.D. 1934).

The provision in S.L. 1933, ch. 137, § 3 that the lien of the hail indemnity tax “shall be prior and superior to all mortgages executed subsequent to the approval of this act” does not operate to impair the obligation of contracts. Federal Farm Mtg. Corp. v. Falk, 67 N.D. 154, 270 N.W. 885 (1936).

Public Contracts.

—Bonds, Warrants and Securities.

A statute providing for the payment of outstanding warrants issued by a county drainage board for expenses incurred prior to the establishment of a drain where the drain had been established and thereafter abandoned, or where construction was postponed, is not, when applied retrospectively, an impairment of a contract. Walstad v. Dawson, 64 N.D. 333, 252 N.W. 64, 1934 N.D. LEXIS 204 (N.D. 1934).

—Tax Sale Certificates.

A statute which extended the time within which a certificate of tax sale would remain valid from six years to ten years after the date of the certificate did not impair any right secured to the landowner by contract nor destroy any vested right in violation of the prohibition against impairing the obligations of contracts. Baird v. Chamberland, 70 N.D. 109, 292 N.W. 219, 1940 N.D. LEXIS 152 (N.D. 1940).

Generally, a certificate of sale issued to a private purchaser at tax sale constitutes a contract and the assembly cannot subsequently disturb vested rights thus acquired. Eikevik v. Lee, 73 N.D. 197, 13 N.W.2d 94, 1944 N.D. LEXIS 53 (N.D. 1944).

Regulatory Statute.

Regulatory statute which prevented payments by wholesaler for storage or display of dairy products, prohibited wholesaler from furnishing retailer with advertising materials and prevented him from making loans to the retailer, impaired the wholesaler’s obligation of contract. Fairmont Foods Co. v. Burgum, 81 N.W.2d 639, 1957 N.D. LEXIS 104 (N.D. 1957).

Remedies.

—In General.

The assembly may modify, limit, or alter the remedy for enforcing a contract without impairing its obligation, but it may not deny all remedy or so circumscribe the existing remedy as to impair the value of the right. First Nat'l Bank v. Paulson, 69 N.D. 512, 288 N.W. 465, 1939 N.D. LEXIS 180 (N.D. 1939).

—Mechanic’s Lien.

The enlargement of a remedy for enforcement of a mechanic’s lien after a sale under foreclosure of a mortgage subject to the lien does not impair the obligation of the contract with the mortgagee or the purchaser on foreclosure. Red River Valley Bank v. Craig, 181 U.S. 548, 21 S. Ct. 703, 45 L. Ed. 994, 1901 U.S. LEXIS 1387 (U.S. 1901).

—Redemption.

The statute which extended the period of redemption of a defaulting vendee in a contract for deed for a period of five months, applied only to contracts made after the law took effect, and was not applicable to contracts made prior to that time. E. J. Lander & Co. v. Deemy, 46 N.D. 273, 176 N.W. 922, 1920 N.D. LEXIS 6 (N.D. 1920).

A provision for the reduction of the rate of interest on the redemption of land sold to a county for taxes for certain years did not impair the obligation of contracts. State ex rel. Atkins v. Lawler, 53 N.D. 278, 205 N.W. 880, 1925 N.D. LEXIS 85 (N.D. 1925).

The law fixing the period of redemption from a real estate mortgage, existing at the time of the entering into a contract of mortgage is a part of the contract and any change in the law fixing the period of redemption, either shortening or extending it, is an impairment of the obligations of such contracts. State ex rel. Cleveringa v. Klein, 63 N.D. 514, 249 N.W. 118, 1933 N.D. LEXIS 203 (N.D. 1933).

Securities Act.

The Securities Act does not violate this section’s prohibition against laws impairing the obligations of contracts. State v. Goetz, 312 N.W.2d 1, 1981 N.D. LEXIS 421 (N.D. 1981), cert. denied, 455 U.S. 924, 102 S. Ct. 1286, 71 L. Ed. 2d 467, 1982 U.S. LEXIS 728 (U.S. 1982).

Tax and Assessment Laws.

A statute providing that a corporation shall be assessed for the amount by which its paid up capital stock, as determined by the market or actual value thereof, exceeds the aggregate values of the real and personal property owned, and the amount of total indebtedness owed, does not infringe upon the rights prescribed by this section. Grand Forks County v. Cream of Wheat Co., 41 N.D. 330, 170 N.W. 863, 1918 N.D. LEXIS 160 (N.D. 1918), aff'd, 253 U.S. 325, 40 S. Ct. 558, 64 L. Ed. 931, 1920 U.S. LEXIS 1426 (U.S. 1920).

The statute which declares void all taxes based on valuations in excess of the full and true value of property does not impair the obligations owing to holders of securities issued by the state. Werner v. Riebe, 70 N.D. 533, 296 N.W. 422, 1941 N.D. LEXIS 196 (N.D. 1941); Vaagen v. Judt, 70 N.D. 556, 296 N.W. 519, 1941 N.D. LEXIS 200 (N.D. 1941).

Workers’ Compensation Benefits.

A worker’s right to receive partial permanent impairment benefits under N.D.C.C. § 65-05-12.2 is not contractual in nature, and thus the application of that section to a worker injured before its effective date did not violate the constitutional prohibition against impairment of contract rights. Saari v. North Dakota Workers Compensation Bur., 1999 ND 144, 598 N.W.2d 174, 1999 N.D. LEXIS 173 (N.D. 1999).

Collateral References.

Constitutional Law 113-203.

16B Am. Jur. 2d, Constitutional Law, §§ 643-689, 708-744.

16A C.J.S. Constitutional Law, §§ 424-606.

Constitutionality, construction, and application of statute or ordinance providing for reduction of pension or retirement benefit of public officer or employee because of independent income, 7 A.L.R.2d 692.

Ex post facto nature of application to prior facts of statute relating to expatriation by foreign naturalization or by taking oath of allegiance to a foreign state, 15 A.L.R.2d 571.

Constitutional prohibition of impairment of the obligation of contract as affecting right of injured person to maintain direct action against tort-feasor’s automobile liability insurer, 16 A.L.R.2d 884.

Impairment of obligation of contract by legislation authorizing sale of charitable trust property, 40 A.L.R.2d 571.

Removal or discharge of public officer or employee because of assertion of immunity against self incrimination, as ex post facto law, 44 A.L.R.2d 790.

Impairing obligation of contracts with respect to pensions, 52 A.L.R.2d 437.

Impairment of contract under statute making private property owner liable to contractor’s laborers, materialmen, or subcontractors where owner fails to exact bond or employ other means of securing their payment, 59 A.L.R.2d 887.

Nonsigner provisions of Fair Trade Law as violation of impairment of contracts provision of state constitution, 60 A.L.R.2d 450.

Constitutional prohibition of ex post facto laws as affecting question whether conviction of lesser offense bars prosecution for greater on new trial, 61 A.L.R.2d 1153.

Retroactive operation of repeal of statute denying defense of usury to corporation as impairing obligation of contract, 63 A.L.R.2d 931.

Impairment of obligation of contract by statute regulating pre-need contracts for sale or furnishing of burial services and merchandise, 68 A.L.R.2d 1251.

Constitutionality of retrospective application of Uniform Principal and Income Act or other statutes relating to ascertainment of principal and income and apportionment of receipts and expenses among life tenants and remaindermen, 69 A.L.R.2d 1137.

Validity and effect of retroactive change in rate of employee’s contribution to public pension fund, 78 A.L.R.2d 1197.

Retrospective operation of state statutes or rules of court conferring in personam jurisdiction over nonresidents or foreign corporations on the basis of isolated acts or transactions, 19 A.L.R.3d 138.

Retrospective effect of statute prescribing grounds of divorce, 23 A.L.R.3d 626.

Retrospective application of state statute substituting rule of comparative negligence for that of contributory negligence, 37 A.L.R.3d 1438.

Statutory change of age of majority as affecting pre-existing status or rights, 75 A.L.R.3d 228.

Validity of statute canceling, destroying, nullifying or limiting enforcement of possibilities of reverter or rights of re-entry for condition broken, 87 A.L.R.3d 1011.

Right of extraditee to bail after issuance of governor’s warrant and pending final disposition of habeas corpus claim, 13 A.L.R.5th 118.

Construction and Application of U.S. Const. Art. I, § 9, cl. 3, Proscribing Federal Bills of Attainder. 62 A.L.R.6th 517.

In General.

City was not guilty of invidious discrimination in choosing to file one suit to compel removal of one unauthorized fence on a flood protection dike rather than several suits to remove several fences, where the outcome of the case might obviate the necessity of filing additional suits to remove other fences. City of Minot v. Johnston, 379 N.W.2d 275, 1985 N.D. LEXIS 450 (N.D. 1985).

Because a driver pointed to no authority for his interpretation of the implied-consent law, the supreme court did not consider adequately briefed the issue that his license revocation violated the constitution and did not address the issue; unless the driver could show the North Dakota Constitution's search and seizure provision provided more protection than the Fourth Amendment of the federal constitution, his argument failed. Koehly v. Levi, 2016 ND 202, 886 N.W.2d 689, 2016 N.D. LEXIS 207 (N.D. 2016).

Constitutional Amendments.

The limitation in the Constitution on legislation does not hamper the people in amending the Constitution when they deem it necessary for the public good. Larkin v. Gronna, 69 N.D. 234, 285 N.W. 59, 1939 N.D. LEXIS 147 (N.D. 1939).

Displaced Homemaker.

N.D.C.C. ch. 14-06.1 recognizes a distinct class who are in need of special assistance “so that they may enjoy the independence and economic security vital to a productive life”; thus, the legislation serves a legitimate governmental interest. Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 1988 N.D. LEXIS 254 (N.D. 1988).

It was reasonable for the legislature to believe that most of the persons who would qualify as a displaced homemaker in need of program assistance would become so through a breakup of the family unit; it is therefore rational to raise funds for the program by requiring payment of a reasonable fee in divorce, separation, and annulment actions. Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 1988 N.D. LEXIS 254 (N.D. 1988).

For an equal protection analysis of arguments based primarily upon an underlying assertion that N.D.C.C. ch. 14-06.1, creates a separate class of citizens in a vague way and confers upon displaced homemakers special privileges not available to everyone, see Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 1988 N.D. LEXIS 254 (N.D. 1988).

Easements.

To show unequal administration of an easement by city, landowner must show an intentional or purposeful discrimination. City of Minot v. Johnston, 379 N.W.2d 275, 1985 N.D. LEXIS 450 (N.D. 1985).

Homestead.

The notice provided under N.D.C.C. § 57-28-04 is insufficient as to the homestead but sufficient as to the other real property; in effect, as to the homestead, N.D.C.C. § 57-28-04 is violative of this section. Mund v. Rambough, 432 N.W.2d 50, 1988 N.D. LEXIS 225 (N.D. 1988).

Improvements to Real Property.

Disparate treatment under N.D.C.C. § 28-01-44 of persons who furnish the design, planning, supervision or construction of an improvement on one hand, and material suppliers or owners of an improvement on the other, did not contravene this section, where differences in control of property made the classifications reasonable. Bellemare v. Gateway Builders, 420 N.W.2d 733, 1988 N.D. LEXIS 51 (N.D. 1988).

The statutory classification which distinguishes between persons injured by improvements to real property within 10 years after substantial completion and persons injured more than 10 years after substantial completion corresponds closely with legislative goals and does not violate this section. Bellemare v. Gateway Builders, 420 N.W.2d 733, 1988 N.D. LEXIS 51 (N.D. 1988).

Limitation of Powers Absolute.

Under the provisions of Article I of the state Constitution the legislature is forbidden to pass any law impairing the obligation of contracts, and because of N.D. Const. art. I, §§ 20 and 24, this limitation of the powers of the legislature is absolute and remains outside of the general powers of the government so long as the constitutional provision remains. State ex rel. Cleveringa v. Klein, 63 N.D. 514, 249 N.W. 118, 1933 N.D. LEXIS 203 (N.D. 1933).

Marriage Dissolution Fee.

The marriage dissolution fee does not violate the due process and equal protection clauses of the federal Constitution or this section or Article I, § 22 of the state Constitution. Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 1988 N.D. LEXIS 254 (N.D. 1988).

A rational basis standard was applied to a constitutional challenge to the marriage dissolution fee because no inherently suspect classification was involved, nor, for all purposes, does the right to divorce constitute a fundamental right. Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 1988 N.D. LEXIS 254 (N.D. 1988).

Personal Injuries.

The right to recover for personal injuries is an important substantive right for which the appropriate standard to review limiting legislation is the intermediate standard or the close correspondence test. That intermediate standard of review requires a close correspondence between statutory classification and legislative goals. Because the statute of repose contained N.D.C.C § 28-01-44, also affects the right to recover for personal injuries, the supreme court will apply the intermediate standard of review. Bellemare v. Gateway Builders, 420 N.W.2d 733, 1988 N.D. LEXIS 51 (N.D. 1988).

Political Subdivision Liability.

Service of Notice by Mail.

N.D.C.C § 57-28-04 is not unconstitutional as a violation of equal protection of the laws under this section and Article I, § 22 of the state Constitution, or Amendment Fourteen, § 1 of the United States Constitution, nor is it a violation of due process of law under Article I, § 9 of the state Constitution, or Amendment Fourteen, § 1 of the United States Constitution, by permitting service of notice by registered mail for the expiration of periods of redemption for real property. Mund v. Rambough, 432 N.W.2d 50, 1988 N.D. LEXIS 225 (N.D. 1988).

Unemployment Benefits.

A full-time college student disqualification for unemployment benefits effected by N.D.C.C § 52-06-02(6), bears a rational relationship to legitimate governmental interests and does not violate the equal protection guarantee of the federal constitution. Nor does it violate this section. Lee v. Job Serv. N.D., 440 N.W.2d 518, 1989 N.D. LEXIS 93 (N.D. 1989).

Law Reviews.

Schools — Nature of the Right to Instruction — The Substantive Requirements of “Free Appropriate Public Education” Under the Education of All Handicapped Children Act of 1975, 59 N.D. L. Rev. 629 (1983).

In General.

A statute which grants no privileges or immunities, except such as would apply to all citizens under the circumstances and conditions expressed in the statute, does not violate the provision against granting such privileges and immunities. Vermont Loan & Trust Co. v. Whithed, 2 N.D. 82, 49 N.W. 318, 1891 N.D. LEXIS 23 (N.D. 1891), limited, Folsom v. Kilbourne, 5 N.D. 402, 67 N.W. 291, 1896 N.D. LEXIS 41 (N.D. 1896).

Classification must be based upon such differences in situation or purpose between the persons included in the class and those excluded therefrom as fairly and naturally suggest the propriety of and necessity for different or exclusive legislation in the line of the statute in which the classification appears. State ex rel. Workmen's Compensation Fund v. E. W. Wylie Co., 79 N.D. 471, 58 N.W.2d 76, 1953 N.D. LEXIS 55 (N.D. 1953).

This constitutional provision does not prohibit appropriate legislative classification where proper facts justify such action as long as the act applies uniformly to all those within the class under similar circumstances. Ferch v. Housing Auth., 79 N.D. 764, 59 N.W.2d 849, 1953 N.D. LEXIS 76 (N.D. 1953).

Anti-Snuff Act.

The Anti-snuff Act was not unconstitutional on the theory that it deprived of life, liberty, or property without due process, or denied equal protection of the laws. State v. Olson, 26 N.D. 304, 144 N.W. 661, 1913 N.D. LEXIS 70 (N.D. 1913), writ of error dismissed, 245 U.S. 676, 38 S. Ct. 13, 62 L. Ed. 542, 1917 U.S. LEXIS 1841 (U.S. 1917).

Appointed Counsel.

—Indigent Parents.

Allowing an indigent parent an opportunity to receive assistance of appointed counsel to protect parental rights is a “privilege” within the meaning of this section. In re Adoption of K.A.S., 499 N.W.2d 558, 1993 N.D. LEXIS 78 (N.D. 1993).

Termination of the father’s parental rights to his son was inappropriate because the district court erred by not informing him of his right to court-appointed counsel and by not deciding whether the father qualified for court-appointed counsel in the proceeding. D.D.F. v. N.D. Dep't of Human Servs. (In re Adoption of J.D.F.), 2009 ND 21, 761 N.W.2d 582, 2009 N.D. LEXIS 21 (N.D. 2009).

District court must advise parents that they are entitled to representation by counsel, provided by the State if necessary, throughout any proceedings to terminate the parent-child relationship against their will. D.D.F. v. N.D. Dep't of Human Servs. (In re Adoption of J.D.F.), 2009 ND 21, 761 N.W.2d 582, 2009 N.D. LEXIS 21 (N.D. 2009).

Business Corporation Prohibited from Farming.

The Corporate farming law does not violate this section. Coal Harbor Stock Farm, Inc. v. Meier, 191 N.W.2d 583 (N.D. 1971).

City Ordinance Exceeding Statute.

For a case noting possible equal protection violations where a city enacts an ordinance with penalties which differ from the penalties imposed by a parallel state statute, see City of Fargo v. Little Brown Jug, 468 N.W.2d 392, 1991 N.D. LEXIS 72 (N.D. 1991).

Civil Remedies and Procedure.

Statutes which authorized the giving of surety bonds on appeal and the taxing of the cost thereof are not unconstitutional as class legislation in violation of this section. Investors Syndicate v. Pugh, 25 N.D. 490, 142 N.W. 919, 1913 N.D. LEXIS 134 (N.D. 1913).

A statute which abolishes the fellow servant rule so far as it applies to common carriers does not contravene the privileges and immunities section. Peterson v. Fargo M. S. Ry., 37 N.D. 440, 164 N.W. 42, 1917 N.D. LEXIS 117 (N.D. 1917).

Classification Based on Sex.

Shortage of funds does not constitute a sufficient compelling state interest to justify the discriminatory practice of transferring women prisoners to out-of-state prisons while keeping men prisoners in this state’s prisons. State ex rel. Olson v. Maxwell, 259 N.W.2d 621, 1977 N.D. LEXIS 192 (N.D. 1977).

Classification based on sex is inherently suspect, requiring strict judicial scrutiny to determine if it is justified by a compelling state interest. State ex rel. Olson v. Maxwell, 259 N.W.2d 621, 1977 N.D. LEXIS 192 (N.D. 1977).

Controlled Substances Act.

N.D.C.C ch. 19-03.1, by including marijuana but not tobacco or alcohol in the same category as other Schedule I substances such as opium, heroin, and L.S.D., does not violate this section and does not make an unconstitutional grant of a special privilege or immunity to users of tobacco and alcohol that it denies to users of marijuana. State v. Boushee, 284 N.W.2d 423, 1979 N.D. LEXIS 303 (N.D. 1979).

Counsel at Parole Revocation Hearing.

Petitioner was not deprived of equal protection of laws by fact that he was not granted counsel at probation or parole revocation hearings since he had no constitutional right to such counsel and since it was not shown that other probationers or parolees had been granted such right. John v. State, 160 N.W.2d 37, 1968 N.D. LEXIS 104 (N.D. 1968).

Deeds Reserving Coal.

Former N.D.C.C. §§ 47-10-21 and 47-10-22 which required that reservations of coal in a deed be described as to nature, length, width and thickness of the coal reserve, and which did not place a similar burden on an interest in coal created by grant, created an unreasonable classification which invidiously discriminated against an interest of coal created by reservation; and were in violation of this section and the equal protection clause of the fourteenth amendment to the United States Constitution.Christman v. Emineth, 212 N.W.2d 543, 1973 N.D. LEXIS 133 (N.D. 1973).

Displaced Homemaker.

N.D.C.C ch. 14-06.1 recognizes a distinct class who are in need of special assistance “so that they may enjoy the independence and economic security vital to a productive life”; thus, the legislation serves a legitimate governmental interest. Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 1988 N.D. LEXIS 254 (N.D. 1988).

For an equal protection analysis of arguments based primarily upon an underlying assertion that N.D.C.C ch. 14-06.1, creates a separate class of citizens in a vague way and confers upon displaced homemakers special privileges not available to everyone, see Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 1988 N.D. LEXIS 254 (N.D. 1988).

Easements.

Educational Funding.

—In General.

The widely disparate effect of the state’s method of accomplishing the fundamental constitutional right to the funding of education failed to bear a close correspondence to the achievement of the constitutionally mandated goal of an equal educational opportunity. Bismarck Pub. Sch. Dist. #1 v. State, 511 N.W.2d 247, 1994 N.D. LEXIS 26 (N.D. 1994).

—Level of Scrutiny.

An equal protection challenge to the statutory method of distributing funding for the fundamental right to education involves important substantive matters which warrant an intermediate level of scrutiny; therefore, the distribution of funding for education must bear a close correspondence to legislative goals. Bismarck Pub. Sch. Dist. #1 v. State, 511 N.W.2d 247, 1994 N.D. LEXIS 26 (N.D. 1994).

Election Laws.

A statute requiring that as a prerequisite to nomination at primary election the votes cast for state, district or county offices be at least 30% of the total cast for secretary of state at the last general election is arbitrary and void as a violation of this section. State ex rel. Dorval v. Hamilton, 20 N.D. 592, 129 N.W. 916, 1910 N.D. LEXIS 132 (N.D. 1910).

Under the school reorganization law, the provision that only those voters residing within the boundaries of a proposed new district may vote upon the question of approval of a plan for the formation of a new district does not violate this section of the Constitution. State ex rel. Kjelden v. Horne, 98 N.W.2d 150, 1959 N.D. LEXIS 100 (N.D. 1959).

Employment Regulations.

The provisions of a statute restricting the employment of flagmen on a railroad power ballaster to those having at least one year’s experience in train service is violative of the section. Northern Pac. Northern Pac. Ry. v. Warner, 77 N.D. 721, 45 N.W.2d 196, 1950 N.D. LEXIS 168, 1950 N.D. LEXIS 169 (N.D. 1950).

Equal Protection.

When plaintiff public school teacher argued defendant school district violated her equal protection rights as a “class of one” because it acted arbitrarily by deducting her pay but not deducting the pay of other teachers who did not teach during the flood cancellation, plaintiff failed to state a claim because class-of-one protection does not apply to public employees under the Equal Protection clause of the United States Constitution; and plaintiff offered no adequate basis for an alternative interpretation under the North Dakota Constitution. Even if the claim existed under the North Dakota Constitution, the school district’s action was not arbitrary because plaintiff was treated the same as the other three teachers who were granted leave during the flood cancellation period. Godon v. Kindred Pub. Sch. Dist., 2011 ND 121, 798 N.W.2d 664, 2011 N.D. LEXIS 115 (N.D. 2011).

District court erred in declaring a city ordinance relating to construction on property located near rivers unconstitutional because the city's distinction between platted and unplatted property under the ordinance bore a rational relationship to a legitimate government interest of limiting new construction on property subject to flooding, the ordinance and its distinction between platted and unplatted property satisfied the rational basis standard of scrutiny, and did not violate either the state of federal equal protection clauses. Ferguson v. City of Fargo, 2016 ND 194, 886 N.W.2d 557, 2016 N.D. LEXIS 193 (N.D. 2016).

Foreign Corporations.

The statute which restricts the right of corporations to own agricultural land, when applied to a foreign hospital corporation owning lands in the state does not violate this section of the Constitution. Asbury Hosp. v. Cass County, 72 N.D. 359, 7 N.W.2d 438, 1943 N.D. LEXIS 75 (N.D. 1943); Asbury Hosp. v. Cass County, 73 N.D. 469, 16 N.W.2d 523, 1944 N.D. LEXIS 83 (N.D. 1944), modified, 326 U.S. 207, 66 S. Ct. 61, 90 L. Ed. 6, 1945 U.S. LEXIS 1533 (U.S. 1945).

Governmental Immunity Abolished Except As to State.

Guest Law.

Guest statute is unconstitutional under this section and N.D. Const. art. I, §§ 12 and 22. Johnson v. Hassett, 217 N.W.2d 771, 1974 N.D. LEXIS 225, 1974 N.D. LEXIS 245 (N.D. 1974).

Handicapped Children’s Education.

Handicapped children are entitled to an educational opportunity equal to that of other children under this section and art. I, §§ 12, 22 and art. VIII, §§ 1, 2 of the state Constitution, as well as under the equal protection clause of the federal Constitution. In Interest of H., 218 N.W.2d 441, 1974 N.D. LEXIS 232 (N.D. 1974).

Highway Improvement Laws.

A statute which provided for the paving, curbing or macadamizing of highways in civil townships adjoining incorporated cities of not less than 6,000 inhabitants was unconstitutional and void as a violation of this section. Morton v. Holes, 17 N.D. 154, 115 N.W. 256, 1908 N.D. LEXIS 20 (N.D. 1908).

Homestead.

The notice provided under N.D.C.C § 57-28-04 is insufficient as to the homestead but sufficient as to the other real property; in effect, as to the homestead, N.D.C.C § 57-28-04 is violative of this section. Mund v. Rambough, 432 N.W.2d 50, 1988 N.D. LEXIS 225 (N.D. 1988).

Improvements to Real Property.

Disparate treatment under N.D.C.C § 28-01-44 of persons who furnish the design, planning, supervision or construction of an improvement on one hand, and material suppliers or owners of an improvement on the other, did not contravene this section, where differences in control of property made the classifications reasonable. Bellemare v. Gateway Builders, 420 N.W.2d 733, 1988 N.D. LEXIS 51 (N.D. 1988).

Legislative Conflict of Interest Statute.

Portion of former N.D.C.C § 54-03-21 distinguishing between legislators who render services or do business with state or its subdivisions, depending on whether earnings of more than $ 10,000 in any calendar year are involved and portion of statute distinguishing between stockholder-legislator and his spouse and employee-legislator and his spouse by permitting business hiring employee-legislator to do any amount of business with state or its subdivisions but making doing of more than $ 10,000 of such business illegal if stockholder-legislator or his spouse owns 5% or more of assets constitutes an arbitrary classification in violation of N.D. Const. art. I, § 22 and this section of state Constitution and section 1 of the fourteenth amendment to the United States Constitution as denial of equal protection of laws. Melland v. Johanneson, 160 N.W.2d 107 (N.D. 1968), distinguishing, Lindberg v. Benson, 70 N.W.2d 42, 1955 N.D. LEXIS 107 (N.D. 1955), and Snyder's Drug Stores v. North Dakota State Bd. of Pharmacy, 219 N.W.2d 140, 1974 N.D. LEXIS 199 (N.D. 1974).

Licenses, License Fees and Permits.

A statute authorizing the board of county commissioners to grant exclusive ferry franchises for a term of years to the highest bidder is valid. Patterson v. Wollmann, 5 N.D. 608, 67 N.W. 1040, 1896 N.D. LEXIS 58 (N.D. 1896).

A statute requiring a ferry to be licensed is not unconstitutional on the ground that it grants special privileges. Patterson v. Wollmann, 5 N.D. 608, 67 N.W. 1040, 1896 N.D. LEXIS 58 (N.D. 1896).

A statute classifying highway carriers for the purpose of imposing a registration fee which excludes from the class of commercial freight hauling done for farmers in transporting agricultural products to or from market, and hauling farm products to or from a railroad station in farming territory is not discriminatory. Figenskau v. McCoy, 66 N.D. 290, 265 N.W. 259, 1936 N.D. LEXIS 170 (N.D. 1936).

Exemptions, in a statute imposing a fee for the use of highways, of retailers delivering only gas and gas products from the bulk station directly to the farmer, and of farmers hauling lignite coal, if done for other farmers in exchange for work and not for cash, is based on arbitrary and discriminatory classifications, and renders the act unconstitutional. Figenskau v. McCoy, 66 N.D. 290, 265 N.W. 259, 1936 N.D. LEXIS 170 (N.D. 1936).

The granting of an exclusive license to an individual or concern for the collection and disposition of garbage, which is essentially the work of the municipal authorities, does not come within the prohibition by the constitution against the granting of a monopoly or special privilege. Tayloe v. Wahpeton, 62 N.W.2d 31, 1953 N.D. LEXIS 85 (N.D. 1953).

Liquor Traffic Regulation.

Chapter 189, S.L. 1907, requiring the registration and publication of internal revenue tax receipts applies to all persons in the state who paid the government tax imposed on the business of a retail dealer in distilling malt and fermented liquors, although they violated the requirement of Congress with reference to posting of the receipt of the payment of such tax, and the act was constitutional. State ex rel. Flaherty v. Hanson, 16 N.D. 347, 113 N.W. 371, 1907 N.D. LEXIS 57 (N.D. 1907), rev'd, 215 U.S. 515, 30 S. Ct. 179, 54 L. Ed. 307, 1910 U.S. LEXIS 1857 (U.S. 1910).

Marriage Dissolution Fee.

Personal Injuries.

The right to recover for personal injuries is an important substantive right for which the appropriate standard to review limiting legislation is the intermediate standard or the close correspondence test. That intermediate standard of review requires a close correspondence between statutory classification and legislative goals. Because the statute of repose contained N.D.C.C § 28-01-44, also affects the right to recover for personal injuries, the supreme court will apply the intermediate standard of review. Bellemare v. Gateway Builders, 420 N.W.2d 733, 1988 N.D. LEXIS 51 (N.D. 1988).

In the present enactment of N.D.C.C. § 28-01.3-08, there is no correspondence between the legislative goals and the classification which bars claims for damages caused by defective products after 10 years from the initial date of their purchase or 11 years from the date of their manufacture, irrespective of whether the injury is incurred within or beyond the period of repose; therefore, this statute creates an unconstitutional classification in violation of this section. Dickie v. Farmers Union Oil Co., 2000 ND 111, 611 N.W.2d 168, 2000 N.D. LEXIS 122 (N.D. 2000).

Prison Operations

Female inmates lacked standing to challenge N.D.C.C. §§ 12-47-38, 12-44.1-06, and related statutes as violating their equal protection rights under either U.S. Const. amend XIV, § 1 or N.D. Const. art. I, § 21 because the female inmates had not been housed in a county jail pursuant to these statutes, and thus the laws never applied to them, and certain of those statutes had expired, making their challenges moot. Moreover, the process of transferring inmates applied equally to both females and males. Roubideaux v. N.D. Dep't of Corr. & Rehab., 523 F. Supp. 2d 952, 2007 U.S. Dist. LEXIS 85276 (D.N.D. 2007), aff'd, 570 F.3d 966, 2009 U.S. App. LEXIS 14417 (8th Cir. N.D. 2009).

Recreational Use Immunity Statutes.

Under the undisputed facts of the case, the recreational use immunity statutes, N.D.C.C. ch. 53-08, advance the important legislative goal of opening property to the public for recreational use in a manner that closely corresponds to the achievement of that goal, and therefore N.D.C.C. ch. 53-08, as applied here, does not violate the equal protection provisions of this section. Olson v. Bismarck Parks & Rec. Dist., 2002 ND 61, 642 N.W.2d 864, 2002 N.D. LEXIS 72 (N.D. 2002).

Prohibition of Use of Parking Meters.

The initiated statute making parking meters illegal within the state does not violate the provisions of this section. City of Fargo v. Sathre, 76 N.D. 341, 36 N.W.2d 39, 1949 N.D. LEXIS 60 (N.D. 1949).

Public Housing Laws.

Statute which pertains to slum clearance and low rent housing projects does not grant special privileges or immunities to persons of low income contrary to the provisions of this section. Ferch v. Housing Auth., 79 N.D. 764, 59 N.W.2d 849, 1953 N.D. LEXIS 76 (N.D. 1953).

The favored classification of “persons of low income” created by the housing authorities law is neither artificial, arbitrary, capricious, nor unreasonable and is not violative of this section of the Constitution. Fradet v. Southwest Fargo, 79 N.D. 799, 59 N.W.2d 871, 1953 N.D. LEXIS 77 (N.D. 1953).

Redemption Laws.

A provision for the reduction of the rate of interest on the redemption of land sold to a county for taxes for certain years does not violate this section. State ex rel. Atkins v. Lawler, 53 N.D. 278, 205 N.W. 880, 1925 N.D. LEXIS 85 (N.D. 1925).

Release of Royalty Claims.

N.D.C.C. § 61-33.1-01 et seq., did not offend N.D. Const. art. I, §§ 21 and 22 because the statutory scheme did not create a classification. Sorum v. State, 2020 ND 175, 947 N.W.2d 382, 2020 N.D. LEXIS 176 (N.D. 2020), cert. denied, — U.S. —, 141 S. Ct. 1389, 209 L. Ed. 2d 129, 2021 U.S. LEXIS 820 (U.S. 2021).

Relocation of Utility Facilities.

The relocation of utility facilities law does not violate this section. Northwestern Bell Tel. Co. v. Wentz, 103 N.W.2d 245, 1960 N.D. LEXIS 69 (N.D. 1960).

Restricted Driver’s License.

The fact that restricted driving privilege may be granted during period of license suspension, but not during period of license revocation, does not grant any special privilege or immunity to any particular citizen or class of citizens. Gableman v. Hjelle, 224 N.W.2d 379, 1974 N.D. LEXIS 134 (N.D. 1974).

Revesting of Land Taken by Eminent Domain.

Where land or rights in land are taken by condemnation under a statute authorizing a revesting of title, the revesting of title to such land or rights in land, when the same are no longer needed for the purposes for which they were taken, is not a violation of this section and art. X, § 18 of the North Dakota Constitution.Wallentinson v. Williams County, 101 N.W.2d 571, 1960 N.D. LEXIS 55 (N.D. 1960).

Sale of State Land.

A statute providing for sale of land to a class of citizens to whom it granted the privilege of buying at private sale and at a price less than could be obtained therefor at public sale contravened this section of the Constitution. Herr v. Rudolf, 75 N.D. 91, 25 N.W.2d 916, 1947 N.D. LEXIS 49 (N.D. 1947).

Service of Notice by Mail.

Sexually Dangerous Individuals

N.D.C.C. ch. 25-03.3 did not violate equal protection, as applied to an inmate who was committed as a sexually dangerous individual, regardless of the level of scrutiny applied, because the state had a compelling interest in protecting the public, and the inmate failed to show that the legislature was not justified in treating mentally ill and sexually dangerous individuals differently. Feland v. P.F (In re P.F.), 2008 ND 37, 744 N.W.2d 724, 2008 N.D. LEXIS 35 (N.D. 2008).

Skiing Responsibility Act.

Because the Skiing Responsibility Act found in N.D.C.C ch. 53-09 bears a close correspondence to the legislative intent and does not create an impermissible classification, it does not violate the state’s constitutional guarantee to equal protection of the laws. Bouchard v. Johnson, 555 N.W.2d 81, 1996 N.D. LEXIS 229 (N.D. 1996).

Special Assessment Constitutional.

Financing by special assessment the construction of a multilevel parking ramp with rentable commercial space was not unlawful and did not constitute lending the credit and borrowing power of the city to individuals, associations or corporations. Patterson v. Bismarck, 212 N.W.2d 374, 1973 N.D. LEXIS 131 (N.D. 1973).

Standing.

One who is neither a resident nor a citizen of the state may not challenge the validity of a statute on the ground that it violates this section of the Constitution. Benson v. Schneider, 68 N.W.2d 665, 1955 N.D. LEXIS 91 (N.D. 1955); State v. Knoefler, 279 N.W.2d 658, 1979 N.D. LEXIS 253 (N.D. 1979).

That a statute is unconstitutional on the ground that it is discriminatory can only be raised by one belonging to a class so discriminated against. State v. Amerada Petroleum Corp., 71 N.W.2d 675, 1955 N.D. LEXIS 127 (N.D. 1955).

Statutory Damages Cap.

Under intermediate scrutiny, N.D.C.C. § 32-12.1-03(2) did not violate N.D. Const. art. I, § 21, as it did not treat individuals differently on its face, and establishing an aggregate cap was sufficiently close to the legitimate legislative goals of providing affordable liability insurance for political subdivisions within applicable fiscal constraints. Larimore Pub. Sch. Dist. No. 44 v. Aamodt, 2018 ND 71, 908 N.W.2d 442, 2018 N.D. LEXIS 75 (N.D. 2018).

Damage cap in N.D.C.C. § 32-42-02 does not violate the equal-protection provisions and is not unconstitutional; the statute does not prevent seriously injured individuals from being fully compensated for any amount of medical care or lost wages, but instead, injured individuals are prevented from receiving more abstract damages in excess of $ 500,000. Condon v. St. Alexius Med. Ctr., 2019 ND 113, 926 N.W.2d 136, 2019 N.D. LEXIS 116 (N.D. 2019).

District court erred in denying a doctor’s motion for a reduction of noneconomic damages on the ground that N.D.C.C. § 32-42-02 was unconstitutional because there was a close correspondence between the damage cap at issue in the case and legitimate legislative goals to satisfy the intermediate level of scrutiny; the statute is supported by the general goals of the health care task force and testimony suggesting benefits to insurance rates may result from the cap. Condon v. St. Alexius Med. Ctr., 2019 ND 113, 926 N.W.2d 136, 2019 N.D. LEXIS 116 (N.D. 2019).

Suit Involving Indians.

No privilege was denied an Indian plaintiff, which was not denied other plaintiffs, by refusing state court civil jurisdiction over an Indian defendant in action arising on reservation; Indians in question never accepted state civil jurisdiction as provided in N.D.C.C ch. 27-19. Gourneau v. Smith, 207 N.W.2d 256, 1973 N.D. LEXIS 177 (N.D. 1973), disapproved, Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 104 S. Ct. 2267, 81 L. Ed. 2d 113, 1984 U.S. LEXIS 8 (U.S. 1984).

Sunday Laws.

The statute restricting the right to operate a Sunday theater is not special legislation. State ex rel. Temple v. Barnes, 22 N.D. 18, 132 N.W. 215, 1911 N.D. LEXIS 1 (N.D. 1911).

A statute which, with certain exceptions, prohibits the selling and exposing for sale of goods on Sunday does not grant privileges and immunities to certain classes. State v. Diamond, 56 N.D. 854, 219 N.W. 831, 1928 N.D. LEXIS 207 (N.D. 1928).

Support Obligation.

Classification inherent in former N.D.C.C § 25-09-04, which, prior to its 1971 amendment, made adult children responsible for payment for parent’s care upon involuntary commitment to state hospital, was arbitrary and oppressive and therefore was in violation of this section and art. I, § 22 of the state Hospital Servs. v. Brooks, 229 N.W.2d 69, 1975 N.D. LEXIS 192 (N.D. 1975).

Tax Laws.

—In General.

To the extent that an act requires the county treasurer to pay to cities organized under the general law, the interest and penalties on city and city school taxes collected by the treasurer, it is an unjust discrimination in favor of the taxpayers of such cities and violates this section. State ex rel. Mitchell v. Mayo, 15 N.D. 327, 108 N.W. 36 (1906), distinguished, Rosedale Sch. Dist. v. Towner County, 56 N.D. 41, 216 N.W. 212 (1927) and Fradet v. Southwest Fargo, 79 N.D. 799, 59 N.W.2d 871, 1953 N.D. LEXIS 77 (N.D. 1953).

An act requiring the county treasurer to transfer bridge funds collected from city property to the city treasurer, where the bridge is constructed in the city, is valid. State ex rel. Hagen v. Anderson, 22 N.D. 65, 132 N.W. 433, 1911 N.D. LEXIS 11 (N.D. 1911).

The statute imposing an inheritance tax of 25% upon the inheritance of a nonresident alien does not violate this section of the state Constitution. Moody v. Hagen, 36 N.D. 471, 162 N.W. 704, 1917 N.D. LEXIS 201 (N.D.), aff'd, 245 U.S. 633, 38 S. Ct. 133, 62 L. Ed. 522, 1917 U.S. LEXIS 1712 (U.S. 1917).

A statute making penalties and interest on taxes payable to political subdivisions to which the taxes were payable does not grant special privileges or immunities. Rosedale Sch. Dist. v. Towner County, 56 N.D. 41, 216 N.W. 212, 1927 N.D. LEXIS 70 (N.D. 1927).

The retail sales tax law which imposes a tax of 2% on all gross receipts regardless of amount of tax collected does not contravene this section of the state Constitution. F. W. Woolworth Co. v. Gray, 77 N.D. 757, 46 N.W.2d 295, 1951 N.D. LEXIS 114 (N.D. 1951).

A law that levied a flat tax of three cents per acre on the mineral rights severed from surface rights in realty by reservations in deeds conveying surface rights was unconstitutional as a violation of this section. Northwestern Improvement Co. v. Morton County, 78 N.D. 29, 47 N.W.2d 543, 1951 N.D. LEXIS 72 (N.D. 1951).

Where special assessments must be apportioned according to benefits, the foot frontage method of assessment is permissible only when the benefits conferred upon the assessed property are equal and uniform. Northern Pac. Ry. v. Grand Forks, 73 N.W.2d 348, 1955 N.D. LEXIS 153 (N.D. 1955).

Tax imposed upon gross receipts of mutual or cooperative telephone company based upon number of telephone stations per mile of line with minimum tax of fifty cents per telephone station, which is in lieu of all real or personal property taxes levied by state or any of its political subdivisions, and distributed to individual counties on basis of number of telephones in each county did not contravene rule of equality as required by fourteenth amendment to United States Constitution or art. I, § 21 of state Constitution; classification of companies based on differences in density of each company’s operation and relationship to productivity and ability to pay graduated tax was reasonable, and fact that one company was only one to be taxed at maximum allowable rate did not invalidate classification where any expanding company becoming sufficiently dense in its operation would be taxed at same rate. Souris River Tel. Mut. Aid Corp. v. State, 162 N.W.2d 685, 1968 N.D. LEXIS 76 (N.D. 1968).

There was a rational basis for tax commissioner’s requirement that in-state taxpayers use single entity method for filing returns rather than combined report method permitted corporations conducting out-of-state business, and taxpayer’s equal protection rights were not violated. Hamich, Inc. v. State by & Through Clayburgh, 1997 ND 110, 564 N.W.2d 640, 1997 N.D. LEXIS 111 (N.D. 1997).

Tax on Legal Proceedings.

Chapter 228, S.L. 1947, imposing tax for filing actions and petitions in courts and providing that money should be used by the bar association for legal research and education and improvement of the judicial system did not violate this section. Menz v. Coyle, 117 N.W.2d 290, 1962 N.D. LEXIS 91 (N.D. 1962).

Trade Associations.

Legislature could classify trade associations incorporated in North Dakota and having as their primary purpose the representation of wheat producers from other groups for purposes of contracting for activities related to domestic wheat policy issues, wheat production, promotion and sales; the legislature’s classification of trade associations bore a rational relationship to a legitimate government interest of promoting activities related to domestic wheat policy issues, wheat production, promotion and sales; therefore, the trade association clause, N.D.C.C. § 4-28-07(4) satisfied the rational basis standard of scrutiny, and the clause did not violate N.D. Const. art. I, § 21. Teigen v. State, 2008 ND 88, 749 N.W.2d 505, 2008 N.D. LEXIS 97 (N.D. 2008).

Unemployment Benefits.

Union Label on State Printing.

N.D.C.C § 46-02-02, which requires that all printing of a certain class used by the state must bear “the label of the branch of the International Typographical Union of the city in which the printing is done,” violates this section. International Printing Pressmen & Assistants Union v. Meier, 115 N.W.2d 18, 1962 N.D. LEXIS 75 (N.D. 1962).

Voting.

Voting provisions of N.D.C.C § 61-21-16 under which landowners had one vote per dollar of assessment were not repugnant to this section. Wallegham v. Thompson, 185 N.W.2d 649, 1971 N.D. LEXIS 182 (N.D. 1971).

Workers’ Compensation Law.

The provisions of the Workmen’s Compensation Act are not so arbitrary and unreasonable as to deprive an employer of his rights under the equal privileges and immunities clause of the state Constitution. State ex rel. Amerland v. Hagan, 44 N.D. 306, 175 N.W. 372, 1919 N.D. LEXIS 213 (N.D. 1919), overruled, Benson v. North Dakota Workmen's Compensation Bureau, 283 N.W.2d 96, 1979 N.D. LEXIS 285 (N.D. 1979).

The 1992 limitations on workers’ compensation vocational rehabilitation retraining benefits under N.D.C.C § 65-05.1-01 did not violate claimant’s equal protection rights under either the federal constitution or this section of the North Dakota Constitution. Baldock v. North Dakota Workers Compensation Bureau, 554 N.W.2d 441, 1996 N.D. LEXIS 223 (N.D. 1996).

Former paragraph (3) of subdivision b of subsection 5 of N.D.C.C § 65-01-02 of the Workmen’s Compensation Act was not an unconstitutional grant of special privileges or immunities even though in creating an exemption from coverage, it did not apply to partners but only to executive officers of corporations. Dunn v. North Dakota Workmen's Compensation Bureau, 191 N.W.2d 181, 1971 N.D. LEXIS 122 (N.D. 1971).

The agricultural exemption in the workers’ compensation law does not violate the equal protection guarantee of the North Dakota Constitution. Haney v. North Dakota Workers Compensation Bureau, 518 N.W.2d 195, 1994 N.D. LEXIS 129 (N.D. 1994).

The rehabilitation limitations under N.D.C.C. §§ 65-05.1-01(3) and 65-05.1-06.1(2)(i)(1) do not violate the equal protection clause of the N.D. Constitution. Eagle v. North Dakota Workers Compensation Bureau, 1998 ND 154, 583 N.W.2d 97, 1998 N.D. LEXIS 160 (N.D. 1998).

Collateral References.

Constitutional Law 204-208.

16B Am. Jur. 2d, Constitutional Law, §§ 745-776.

16B C.J.S. Constitutional Law, §§ 1051-1064.

Class-of-one equal protection claims based upon law enforcement actions, 86 A.L.R.6th 173.

Federal and state constitutional provisions as prohibiting discrimination in employment on basis of gay, lesbian, or bisexual sexual orientation or conduct, 96 A.L.R.5th 391.

Federal and state constitutional provisions and state statutes as prohibiting employment discrimination based on heterosexual conduct or relationship, 123 A.L.R.5th 411.

Application of Class-of-One Theory of Equal Protection to Public Employment, 32 A.L.R.6th 457.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes — Public employment cases, 168 A.L.R. Fed. 1.

Equal protection and due process clause challenges based on racial discrimination — Supreme Court cases, 172 A.L.R. Fed. 1.

Construction and application of constitutional rule of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)—United States Supreme Court cases, 8 A.L.R. Fed. 2d 547.

Law Reviews.

Schools — Nature of the Right to Instruction — The Substantive Requirements of “Free Appropriate Public Education” Under the Education of All Handicapped Children Act of 1975, 59 N.D. L. Rev. 629 (1983).

North Dakota Supreme Court Review (Olson v. Bismarck Parks & Recreation District, 2002 ND 61, 642 N.W.2d 864, see 79 N.D. L. Rev. 589 (2003).

Constitutional Law — Workers Compensation: Equal Protection Challenge to the Agriculture Exemption and Use of Rational Basis Scrutiny in Haney v. North Dakota Workers Compensation Bureau, 518 N.W.2d 195 (N.D. 1994), 71 N.D. L. Rev. 781 (1995).

Summary of North Dakota Supreme Court Decisions on Constitutional Law — Workers’ Compensation, 71 N.D. L. Rev. 856 (1995).

Are Employees Obtaining “Sure and Certain Relief” Under the 1995 Legislative Enactments of the North Dakota Workers’ Compensation Act?, 72 N.D. L. Rev. 349 (1996).

North Dakota Supreme Court Review, 77 N.D. L. Rev. 589 (2001).

North Dakota Supreme Court Review, (Teigen v. State, 2008 ND 88, 749 N.W.2d 505 (2008)), see 85 N. Dak. L. Rev. 503 (2009).

In General.

The provision that a law of a general nature shall have uniform operation is satisfied if the benefits and burdens of such a law fall equally upon all members of the class or classes upon which it operates. Vermont Loan & Trust Co. v. Whithed, 2 N.D. 82, 49 N.W. 318, 1891 N.D. LEXIS 23 (N.D. 1891), limited, Folsom v. Kilbourne, 5 N.D. 402, 67 N.W. 291, 1896 N.D. LEXIS 41 (N.D. 1896).

An act relating to all the objects to which it should relate, except one, is as much special legislation as if it had embraced only the subject excluded. Edmonds v. Herbrandson, 2 N.D. 270, 50 N.W. 970, 1891 N.D. LEXIS 56 (N.D. 1891); Angell v. Cass County, 11 N.D. 265, 91 N.W. 72, 1902 N.D. LEXIS 212 (N.D. 1902).

It is not necessary that a law operates upon all alike, but it must operate alike upon all who are in like situations. Beleal v. Northern Pac. Ry., 15 N.D. 318, 108 N.W. 33, 1904 N.D. LEXIS 93 (N.D. 1904).

The true test of unlawful statutory discrimination is whether all who are similarly situated are similarly treated, and whether those who are similarly situated are hindered or prevented in their competition with one another. Gunn v. Minneapolis S. P. & S. S. M. Ry., 34 N.D. 418, 158 N.W. 1004, 1916 N.D. LEXIS 41 (N.D. 1916).

The limitation imposed by this section upon legislation is that any classification provided as the basis for distinctive or special operation of the law must be natural, not artificial. Figenskau v. McCoy, 66 N.D. 290, 265 N.W. 259, 1936 N.D. LEXIS 170 (N.D. 1936).

In determining the validity of legislative classification, judicial inquiry does not concern itself with the accuracy of the legislative finding, but only with the question whether it is so lacking in any reasonable basis as to be arbitrary. Asbury Hosp. v. Cass County, 72 N.D. 359, 7 N.W.2d 438, 1943 N.D. LEXIS 75 (N.D. 1943); Asbury Hosp. v. Cass County, 73 N.D. 469, 16 N.W.2d 523, 1944 N.D. LEXIS 83 (N.D. 1944), modified, 326 U.S. 207, 66 S. Ct. 61, 90 L. Ed. 6, 1945 U.S. LEXIS 1533 (U.S. 1945).

North Dakota’s pre-1983 gross insurance premiums tax under former N.D.C.C. § 26-01-11(1) bore no rational relationship to a legitimate state purpose and therefore violated the equal protection clauses of the federal and state constitutions. Metropolitan Life Ins. Co. v. Commissioner of Dep’t of Ins., 373 N.W.2d 399 (N.D. 1985), upholding purely prospective application of this ruling.

Anti-Corruption Statute.

A statute which prohibits legislators from furnishing materials and services to the state or any of its subdivisions for a consideration in excess of $ 10,000 in any one year and which applies the same prohibition to corporations in which 5% or more of the assets are owned by the legislator does not violate this section of the Constitution. Lindberg v. Benson, 70 N.W.2d 42, 1955 N.D. LEXIS 107 (N.D. 1955).

Bank Examiner.

It would be discriminatory to hold that the state bank examiner’s emergency powers under N.D.C.C. § 6-07-04, while applicable to other banks, do not apply to banks organized under N.D.C.C. ch. 6-05. First Am. Bank & Trust Co. v. Ellwein, 198 N.W.2d 84, 1972 N.D. LEXIS 149, 1972 N.D. LEXIS 177 (N.D. 1972).

Beekeeping Regulation.

Any classification created by former N.D.C.C. § 4-12-03.1, which prohibited a commercial beekeeper from establishing an apiary within two miles of another commercial beekeeper, was based upon commercial activity, bore a rational relationship to the purpose of the statute to prevent honey raiding and spreading of bee diseases, and did not violate this section. State v. Knoefler, 279 N.W.2d 658, 1979 N.D. LEXIS 253 (N.D. 1979).

Corporate Farming.

Displaced Homemaker.

Drainage Projects.

Voting provisions of N.D.C.C. § 61-21-16 under which landowners had one vote per dollar of assessment were not repugnant to this section. Wallegham v. Thompson, 185 N.W.2d 649, 1971 N.D. LEXIS 182 (N.D. 1971).

Easements.

Educational Funding.

—In General.

The funding of the fundamental constitutional right to education is an important substantive right. Bismarck Pub. Sch. Dist. #1 v. State, 511 N.W.2d 247, 1994 N.D. LEXIS 26 (N.D. 1994).

—Level of Scrutiny.

Exemption from Attachment.

The statute providing that money or other benefit rendered by any fraternal beneficiary society is not subject to attachment does not violate this section. Brown v. Steckler, 40 N.D. 113, 168 N.W. 670, 1918 N.D. LEXIS 80 (N.D. 1918).

Failure to Return Execution.

A statute which imposes liability upon a sheriff who fails to make a return of an execution within the time required by law does not violate the provisions of this section. Lee v. Dolan, 34 N.D. 449, 158 N.W. 1007, 1916 N.D. LEXIS 42 (N.D. 1916).

A law imposing liability on a sheriff for failure to make a return on an execution does not violate the requirement that all general laws shall have uniform operation. Moody v. Hagen, 36 N.D. 471, 162 N.W. 704, 1917 N.D. LEXIS 201 (N.D.), aff'd, 245 U.S. 633, 38 S. Ct. 133, 62 L. Ed. 522, 1917 U.S. LEXIS 1712 (U.S. 1917).

Guest Statute.

Guest statute is unconstitutional under this section and art. I, §§ 12 and 21. Johnson v. Hassett, 217 N.W.2d 771, 1974 N.D. LEXIS 225, 1974 N.D. LEXIS 245 (N.D. 1974).

Handicapped Children’s Education.

Handicapped children are entitled to an educational opportunity equal to that of other children under this section and art. I, §§ 12, 21 and art. VIII, §§ 1, 2 of the state Constitution, as well as under the equal protection clause of the federal Constitution. In Interest of H., 218 N.W.2d 441, 1974 N.D. LEXIS 232 (N.D. 1974).

Homestead.

The notice provided under N.D.C.C. § 57-28-04 is insufficient as to the homestead but sufficient as to the other real property; in effect, as to the homestead, N.D.C.C. § 57-28-04 is violative of Article I, § 21 of the state Constitution. Mund v. Rambough, 432 N.W.2d 50, 1988 N.D. LEXIS 225 (N.D. 1988).

Legislative Conflict of Interest Statute.

Portion of former N.D.C.C. § 54-03-21 distinguishing between legislators who render services or do business with state or its subdivisions, depending on whether earnings of more than $ 10,000 in any calendar year are involved and portion of statute distinguishing between stockholder-legislator and his spouse and employee-legislator and his spouse by permitting business hiring employee-legislator to do any amount of business with state or its subdivisions but making doing of more than $ 10,000 of such business illegal if stockholder-legislator or his spouse owns 5% or more of assets constitutes an arbitrary classification in violation of N.D. Const. art. I, § 21 and this section of state Constitution and section 1 of the fourteenth amendment to United States Constitution as denial of equal protection of laws. Melland v. Johanneson, 160 N.W.2d 107 (N.D. 1968), distinguishing, Lindberg v. Benson, 70 N.W.2d 42, 1955 N.D. LEXIS 107 (N.D. 1955).

Lien Laws.

An act giving to materialmen and laborers a lien upon buildings erected upon government lands held under the laws of the United States is not in conflict with this section. Powers Elevator Co. v. Pottner, 16 N.D. 359, 113 N.W. 703, 1907 N.D. LEXIS 65 (N.D. 1907).

Liquor Traffic Regulation.

A law requiring the registration and publication of internal tax receipts is not vulnerable to the requirement that all general laws shall have uniform operation. State ex rel. Flaherty v. Hanson, 16 N.D. 347, 113 N.W. 371, 1907 N.D. LEXIS 57 (N.D. 1907), rev'd, 215 U.S. 515, 30 S. Ct. 179, 54 L. Ed. 307, 1910 U.S. LEXIS 1857 (U.S. 1910).

Marriage Dissolution Fee.

The marriage dissolution fee does not violate the due process and equal protection clauses of the federal Constitution or Article I, § 21 and this section of the state Constitution. Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 1988 N.D. LEXIS 254 (N.D. 1988).

Municipal Annexation Law.

A statute which authorizes any city to annex certain adjacent territory by resolution of the city council, after hearing upon a protest being filed by property owners, is uniform in operation. Waslien v. Hillsboro, 48 N.D. 1113, 188 N.W. 738, 1922 N.D. LEXIS 149 (N.D. 1922).

Municipal Improvements.

An act which provided for the paving of highways and the improvement of sewers in civil townships adjoining incorporated cities of not less than 6,000 population was unconstitutional as a violation of this section. Morton v. Holes, 17 N.D. 154, 115 N.W. 256, 1908 N.D. LEXIS 20 (N.D. 1908).

Primary Election Law.

A provision in the primary election law that if the total vote cast for any candidate shall be less than 30% of the total vote cast for secretary of state of the political party with which such candidate is affiliated at the last general election, no nomination shall be made by that party for such office, does not operate with substantial uniformity. State ex rel. Dorval v. Hamilton, 20 N.D. 592, 129 N.W. 916, 1910 N.D. LEXIS 132 (N.D. 1910).

Provisions for Educational Institutions.

A statute authorizing a nonprofit association to maintain a dormitory at a state educational institution does not violate the uniformity requirement. State ex rel. Kaufman v. Davis, 59 N.D. 191, 229 N.W. 105, 1930 N.D. LEXIS 133 (N.D. 1930).

Question of Law.

All laws of a general nature are to have a uniform operation. As a result, the interpretation of a statute is a question of law, fully reviewable by the courts. Riverview Place v. Cass County, 448 N.W.2d 635, 1989 N.D. LEXIS 230 (N.D. 1989).

Release of Royalty Claims.

N.D.C.C. § 61-33.1-01 et seq., did not offend N.D. Const. art. I, §§ 22 and 23 because the statutory scheme did not create a classification. Sorum v. State, 2020 ND 175, 947 N.W.2d 382, 2020 N.D. LEXIS 176 (N.D. 2020), cert. denied, — U.S. —, 141 S. Ct. 1389, 209 L. Ed. 2d 129, 2021 U.S. LEXIS 820 (U.S. 2021).

Relocation of County Seats.

A law regulating the relocation of county seats must not classify counties arbitrarily. Edmonds v. Herbrandson, 2 N.D. 270, 50 N.W. 970, 1891 N.D. LEXIS 56 (N.D. 1891).

Relocation of Utility Facilities.

Restricted Driver’s License.

The fact that a restricted driver’s license may be granted during a period of license suspension, but not during a period of license revocation, is not contradictory to the uniform operation of the law. Gableman v. Hjelle, 224 N.W.2d 379, 1974 N.D. LEXIS 134 (N.D. 1974).

Revocation of Driver’s License.

The statute providing that a driver’s license could be revoked for two convictions of operating a motor vehicle while under the influence of intoxicating liquor is not unconstitutional as applied to, and including convictions for violations of municipal ordinances. Lill v. Thompson, 84 N.W.2d 733, 1957 N.D. LEXIS 141 (N.D. 1957).

Salary Reduction Measure.

A measure encompassing a general salary reduction which is applied to different classes of officials and employees does not violate this section where all in each class in like circumstances are treated alike. State ex rel. Gammons v. Shafer, 63 N.D. 128, 246 N.W. 874, 1933 N.D. LEXIS 164 (N.D. 1933).

School Bus Transportation.

The school bus charges authorized under N.D.C.C. § 15-34.2-06.1 (now N.D.C.C. § 15.1-30-05), did not violate students’ rights to equal protection under the Fourteenth Amendment to the United States Constitution and this section of the North Dakota Constitution. Kadrmas v. Dickinson Pub. Sch., 402 N.W.2d 897, 1987 N.D. LEXIS 275 (N.D. 1987), aff'd, 487 U.S. 450, 108 S. Ct. 2481, 101 L. Ed. 2d 399, 1988 U.S. LEXIS 2878 (U.S. 1988).

N.D.C.C. § 15-34.2-06.1 (now N.D.C.C. § 15.1-30-05) is purely economic legislation which neither involves a suspect classification nor a fundamental or important substantive right which would require the strict scrutiny or intermediate standard of review; in equal protection challenges to legislation involving student transportation, the traditional rational basis standard of review has been employed. Kadrmas v. Dickinson Pub. Sch., 402 N.W.2d 897, 1987 N.D. LEXIS 275 (N.D. 1987), aff'd, 487 U.S. 450, 108 S. Ct. 2481, 101 L. Ed. 2d 399, 1988 U.S. LEXIS 2878 (U.S. 1988).

School Districts.

A statute applying only to school townships of 800 inhabitants or more contravenes the requirement that all general laws shall have uniform operation. Plummer v. Borsheim, 8 N.D. 565, 80 N.W. 690, 1899 N.D. LEXIS 52 (N.D. 1899).

The statute providing two different methods of organizing common school districts does not conflict with this section. McDonald v. Hanson, 37 N.D. 324, 164 N.W. 8, 1917 N.D. LEXIS 106 (N.D. 1917).

The school reorganization law, which provides that only the electors residing in the proposed district may vote does not contravene this section of the Constitution. State ex rel. Kjelden v. Horne, 98 N.W.2d 150, 1959 N.D. LEXIS 100 (N.D. 1959).

Service of Notice by Mail.

N.D.C.C. § 57-28-04 is not unconstitutional as a violation of equal protection of the laws under N.D. Const. art. I, § 21 and this section of the state Constitution, or Amendment Fourteen, § 1 of the United States Constitution, nor is it a violation of due process of law under Article I, § 9 of the state Constitution, or Amendment Fourteen, § 1 of the United States Constitution, by permitting service of notice by registered mail for the expiration of periods of redemption for real property. Mund v. Rambough, 432 N.W.2d 50, 1988 N.D. LEXIS 225 (N.D. 1988).

Settlement of Actions.

The act relating to the settlement of a cause of action for personal injuries does not violate the constitutional provision requiring general laws to operate uniformly. Peterson v. Panovitz, 62 N.D. 328, 243 N.W. 798, 1932 N.D. LEXIS 183 (N.D. 1932).

Sexually Dangerous Individuals

Standards of Review.

—Equal Protection.

There are three separate standards of review for equal protection claims, and the standard used in a particular case depends upon the challenged statutory classification and the right allegedly infringed. If the case involves an inherently suspect classification or an infringement of a fundamental right, the statute is subject to strict judicial scrutiny and will be held invalid unless it is shown that the statute promotes a compelling governmental interest and that the distinctions drawn by the classification are necessary to further its purpose; where an important substantive right is involved, it is necessary to determine whether or not there is a close correspondence between the statutory classification and the legislative goals the statute was designed to achieve. In all other cases, a legislative classification will be sustained unless it is patently arbitrary and bears no rational relationship to a legitimate government interest. The rational basis test is the traditional standard for scrutinizing legislation facing equal protection attack and is most often utilized in cases involving economic and social welfare legislation. Kadrmas v. Dickinson Pub. Sch., 402 N.W.2d 897, 1987 N.D. LEXIS 275 (N.D. 1987), aff'd, 487 U.S. 450, 108 S. Ct. 2481, 101 L. Ed. 2d 399, 1988 U.S. LEXIS 2878 (U.S. 1988).

State Bonding Fund.

An act establishing a state bonding fund for the purpose of bonding county, village, and school district officers required to be bonded is not repugnant to the requirement that all general laws shall have uniform operation. State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N.W. 561, 1916 N.D. LEXIS 71 (N.D. 1916), writ of error dismissed, 245 U.S. 627, 38 S. Ct. 60, 62 L. Ed. 518, 1917 U.S. LEXIS 1797 (U.S. 1917).

Sunday Laws.

The statute prohibiting the operation of theaters on Sunday is not special legislation. State ex rel. Temple v. Barnes, 22 N.D. 18, 132 N.W. 215, 1911 N.D. LEXIS 1 (N.D. 1911).

Sunday closing law is not a special law prohibited by the North Dakota Constitution. Best Prods. Co. v. Spaeth, 461 N.W.2d 91, 1990 N.D. LEXIS 194 (N.D. 1990).

Sunday closing law does implement the legislative purpose of rest and recreation by limiting commercial activities to a kind or degree judged by legislature not to disrupt the intended atmosphere. And, the law has required uniform effect because every business of a certain type and every commodity of a certain kind is regulated in order to achieve what is the universally accepted legitimate governmental purpose. Best Prods. Co. v. Spaeth, 461 N.W.2d 91, 1990 N.D. LEXIS 194 (N.D. 1990).

Support Obligation.

Classification inherent in former N.D.C.C. § 25-09-04, which, prior to its 1971 amendment, made adult children responsible for payment for parent’s care upon involuntary commitment to state hospital, was arbitrary and oppressive and therefore was in violation of this section and art. I, § 21 of the state Constitution. Hospital Servs. v. Brooks, 229 N.W.2d 69, 1975 N.D. LEXIS 192 (N.D. 1975).

Tax Laws.

—Allocation of Penalties and Interest.

A statute which required the county treasurer to pay over the interest and penalties which he had collected on city and city school taxes to cities organized under the general law was an arbitrary and unjust discrimination in favor of taxpayers in these cities and invalid as a violation of this section. State ex rel. Mitchell v. Mayo, 15 N.D. 327, 108 N.W. 36 (1906), distinguished, Rosedale Sch. Dist. v. Towner County, 56 N.D. 41, 216 N.W. 212 (1927) and Fradet v. Southwest Fargo, 79 N.D. 799, 59 N.W.2d 871, 1953 N.D. LEXIS 77 (N.D. 1953).

The statute making penalties and interest on taxes payable to political subdivisions to which the taxes were payable does not violate this section. Rosedale Sch. Dist. v. Towner County, 56 N.D. 41, 216 N.W. 212, 1927 N.D. LEXIS 70 (N.D. 1927).

—County Road and Bridge Tax.

An act requiring a county treasurer to transfer to a city treasurer bridge funds collected from city property, where the bridge is constructed in the city does not violate this section. State ex rel. Hagen v. Anderson, 22 N.D. 65, 132 N.W. 433, 1911 N.D. LEXIS 11 (N.D. 1911).

—Enforcement of Unpaid Property Tax.

Chapter 161, S.L. 1903, providing for the enforcement of payment of taxes on real property sold to the state or county was complete and in force in every county in the state and was constitutional and not a special tax law. Picton v. Cass County, 13 N.D. 242, 100 N.W. 711, 1904 N.D. LEXIS 41 (N.D. 1904).

—Grain Tax.

A general law assessing and taxing grain in an elevator to the possessor, and providing for a lien as security for reimbursement if the possessor is not the owner, is valid. Minneapolis & N. Elevator Co. v. Traill County, 9 N.D. 213, 82 N.W. 727, 1900 N.D. LEXIS 113 (N.D. 1900).

—Inheritance Tax.

The statute imposing an inheritance tax of 25% upon the inheritance of a nonresident alien did not violate this section. Moody v. Hagen, 36 N.D. 471, 162 N.W. 704, 1917 N.D. LEXIS 201 (N.D.), aff'd, 245 U.S. 633, 38 S. Ct. 133, 62 L. Ed. 522, 1917 U.S. LEXIS 1712 (U.S. 1917).

—Mineral Rights Excise Tax.

An excise tax applying a flat rate solely to undeveloped mineral rights severed from surface rights by express reservations of mineral rights in deeds conveying surface rights, and not to undeveloped mineral rights severed by direct conveyances thereof from the owners of surface rights, is void as discriminatory, unreasonable and arbitrary. Northwestern Improvement Co. v. Morton County, 78 N.D. 29, 47 N.W.2d 543, 1951 N.D. LEXIS 72 (N.D. 1951).

—Probate Fee As Tax.

Chapter 119, S.L. 1909, prescribing a graduated probate fee was invalid because it did not provide for uniform operation. Malin v. La Moure County, 27 N.D. 140, 145 N.W. 582, 1914 N.D. LEXIS 26 (N.D. 1914).

—Property Tax.

N.D.C.C. § 57-07-27, which provides that agricultural land located within corporate limits of a city is to be classified and valued for ad valorem property tax purposes with agricultural lands located outside and adjoining the corporate limits, does not violate equal protection of the law. Caldis v. Board of County Comm'rs, 279 N.W.2d 665, 1979 N.D. LEXIS 254 (N.D. 1979).

—Sales Tax.

The statute which imposes a 2% retail sales tax on all gross receipts regardless of the amount of tax collected does not contravene the principles of this section. F. W. Woolworth Co. v. Gray, 77 N.D. 757, 46 N.W.2d 295, 1951 N.D. LEXIS 114 (N.D. 1951).

Workers’ Compensation Law.

Collateral References.

Statutes 70-74.

73 Am. Jur. 2d, Statutes, §§ 3-7.

82 C.J.S. Statutes, § 147.

Voir dire exclusions of men from state trial jury or jury panel — post-J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89, cases, 88 A.L.R.5th 67.

Class-of-One Equal Protection Claims Based Upon Real Estate Development, Zoning, and Planning. 68 A.L.R.6th 229.

Law Reviews.

The Statute of Limitations in North Dakota’s Products Liability Act: An Exercise in Futility?, 59 N.D. L. Rev. 551 (1983).

Schools — Nature of the Right to Instruction — The Substantive Requirements of “Free Appropriate Public Education” Under the Education of All Handicapped Children Act of 1975, 59 N.D. L. Rev. 629 (1983).

Sovereign Immunity — Judicial Abrogation of North Dakota’s Sovereign Immunity Results in Its Possible Legislative Reassertion and Legislation to Provide Injured Parties with a Remedy for the Torts Committed by the State or Its Agents, 71 N.D. L. Rev. 761 (1995).

In General.

A constitutional provision is to be construed as mandatory, unless a different intention appears. LANGER v. STATE, 69 N.D. 129, 284 N.W. 238, 1939 N.D. LEXIS 137 (N.D. 1939); Ford Motor Co. v. Baker, 71 N.D. 298, 300 N.W. 435, 1941 N.D. LEXIS 169 (N.D. 1941).

Interpretation of Other Constitutional Provisions.

The legislature can neither enlarge nor diminish the qualifications necessary to entitle one to vote at a constitutional election. Johnson v. Grand Forks County, 16 N.D. 363, 113 N.W. 1071, 1907 N.D. LEXIS 77 (N.D. 1907).

The method provided for the election of and the causes for removing a state’s attorney, specified in the Constitution, are exclusive. State ex rel. Ilvedson v. District Court, 70 N.D. 17, 291 N.W. 620, 1940 N.D. LEXIS 143 (N.D. 1940).

Operation and Effect in General.

When the law directs something to be done in a given manner, or at a particular time or place, then there is an implied prohibition against any other mode or time or place for doing the act. State ex rel. Frich v. Stark County, 14 N.D. 368, 103 N.W. 913, 1905 N.D. LEXIS 46 (N.D. 1905).

Constitutional provisions always operate prospectively, and not retrospectively unless the words used or the objects to be accomplished clearly indicate that a retrospective operation was intended. State ex rel. Linde v. Hall, 35 N.D. 34, 159 N.W. 281, 1916 N.D. LEXIS 142 (N.D. 1916).

The legislature is forbidden to enact any law depriving a person of his property without due process of law, and because of this section such prohibition exists so long as N.D. Const. art. I, § 12 remains. State ex rel. Cleveringa v. Klein, 63 N.D. 514, 249 N.W. 118, 1933 N.D. LEXIS 203 (N.D. 1933).

As a general rule constitutional provisions are not to be construed as themselves making appropriations unless they are so clearly intended. Ford Motor Co. v. Baker, 71 N.D. 298, 300 N.W. 435, 1941 N.D. LEXIS 169 (N.D. 1941).

Remedy for Violation.

Those who are injured by the failure of the legislature to observe the mandatory requirements laid down in the constitution can only seek relief in the courts after the legislative act is completed. Wilson v. Fargo, 48 N.D. 447, 186 N.W. 263, 1921 N.D. LEXIS 64 (N.D. 1921).

Collateral References.

16 Am. Jur. 2d, Constitutional Law, §§ 60-108.

16 C.J.S. Constitutional Law, §§ 4-7.

Applicability.

District court did not have authority to order that defendant have no contact with two of his children until the children turned 18 years old as part of his sentence of life in prison because there was no request from the children, their representative, or the State for the no contact order; thus, the constitutional provisions for victims did not apply. State v. Wilder, 2018 ND 93, 909 N.W.2d 684, 2018 N.D. LEXIS 102 (N.D. 2018).

Restitution.

In a criminal mischief case in which defendant was ordered to pay restitution, the district court abused its discretion in ordering restitution in the amount of $3,790 for damage to a 10-year-old copy machine because a victim was entitled to be made whole through a reasonable restitution amount based on the entirety of the actual losses, but the district court did not consider defendant's evidence of possible lower replacement costs, and instead, the district court misinterpreted the constitutional provision in determining that the school district was entitled to the amount it had expended; and the district court misapplied the law in finding it could not determine whether its restitution award made the victim beyond whole. State v. Kostelecky, 2018 ND 12, 906 N.W.2d 77, 2018 N.D. LEXIS 18 (N.D. 2018); State v. Kostelecky, 2018 ND 12, 906 N.W.2d 77, 2018 N.D. LEXIS 18 (N.D. 2018).

In a negligent homicide case, the victim's father actually incurred expenses from driving to and from the court proceedings as a direct result of defendant's criminal actions. Therefore, the district court did not abuse its discretion, under these circumstances, when ordering restitution for travel expenses. State v. Bruce, 2018 ND 45, 907 N.W.2d 773, 2018 N.D. LEXIS 64 (N.D. 2018).

Trial court did not err by imposing restitution for extradition costs in defendant’s gross sexual imposition case (GSI) because defendant pleaded guilty to both the GSI and the bail-jumping charges, he fled the country during and from the GSI prosecution, it was his act of fleeing that directly resulted in the bail-jumping charges and the cost to return him for trial, and the trial court’s jurisdiction over restitution in the bail-jumping case was continually held open. State v. Rogers, 2018 ND 244, 919 N.W.2d 193, 2018 N.D. LEXIS 252 (N.D. 2018).

Supreme Court concluded the district court did not abuse its discretion in fixing the amount of restitution without regard to defendant’s ability to pay. The Supreme Court resolved an irreconcilable conflict between N.D. Const. art. I, § 25(1)(n), and N.D.C.D. § 12.1-32-08(1) by interpreting the constitutional amendment as implicitly repealing the conflicting portion of the statute. State v. Strom, 2019 ND 9, 921 N.W.2d 660, 2019 N.D. LEXIS 20 (N.D. 2019).

District court properly required defendant to pay restitution to the victim’s insurer because the restitution statute and the state constitution could be harmonized where the Supreme Court of North Dakota had determined that insurance companies fell within the statutory definition of “other recipient,” and, even if it were to determine that the definition of “victim” contained the constitution was limited to individuals, that definition did not conflict with the legislature’s expansion of restitution to “other recipients.”State v. Hunt, 2019 ND 127, 927 N.W.2d 412, 2019 N.D. LEXIS 133 (N.D. 2019).

In a case in which defendant pled guilty to possession of a stolen motorcycle, and the motorcycle was returned physically damaged, the trial court did not err in ordering defendant to pay restitution because the damage to the motorcycle was directly related to the criminal offense, and it could reasonably be inferred that damage was caused during possession of the stolen property. State v. Walker, 2019 ND 292, 936 N.W.2d 45, 2019 N.D. LEXIS 297 (N.D. 2019), limited, State v. Harstad, 2020 ND 151, 945 N.W.2d 265, 2020 N.D. LEXIS 139 (N.D. 2020).

District court did not err in awarding $2,314.35 in restitution be paid to the victim for the damages to her car and for the stolen property because the victim was damaged as a direct result of defendant’s conduct of breaking into the victim’s car, and damaging the radio, speedometer glass, and HVAC controls; and the fact that the victim did not incur any actual expenses as she chose not to repair the damages or could not afford to repair the damages was not dispositive of whether she sustained damages and was entitled to restitution. Further, the fact that the victim received an insurance payout had no bearing on the district court’s award of restitution. State v. Pagenkopf, 2020 ND 33, 939 N.W.2d 2, 2020 N.D. LEXIS 36 (N.D. 2020).

Defendant’s acquittal of aggravated assault did not bar restitution because (1) defendant was only acquitted of causing a victim’s unconsciousness, and (2) defendant assault conviction was sufficient to support a restitution award. State v. McAllister, 2020 ND 48, 939 N.W.2d 502, 2020 N.D. LEXIS 45 (N.D. 2020).

In a case in which defendant was convicted of possession of a stolen vehicle, but was not charged with the theft of the vehicle, the district court abused its discretion by ordering restitution for the unrecovered personal property that was in the vehicle at the time the vehicle was stolen, but was not in the vehicle seven days later when defendant was arrested for, and charged with, possession of the stolen vehicle, because there was no immediate and intimate causal connection between the criminal conduct and the loss of the personal property. State v. Harstad, 2020 ND 151, 945 N.W.2d 265, 2020 N.D. LEXIS 139 (N.D. 2020).

State had no statutory right to appeal a restitution order in a criminal case because, although an order for restitution affected with finality the State’s ability to obtain recompense for a crime victim, the victim could seek recovery of damages independent from any action by the State in a civil action to recover other or additional damages suffered as a result of the crime; and the right of restitution would not be undermined or lost without appellate review as the victim could maintain a civil action seeking recovery of damages. State v. Conry, 2020 ND 247, 951 N.W.2d 226, 2020 N.D. LEXIS 237 (N.D. 2020).

Additional Qualifications.

It is incompetent for the assembly to prescribe qualifications of voters or candidates in addition to those fixed by the constitution. Johnson v. Grand Forks County, 16 N.D. 363, 113 N.W. 1071, 1907 N.D. LEXIS 77 (N.D. 1907).

Conviction of Crime.

Participation in the elective franchise is a privilege rather than a right, and the state may deny such privilege to a person convicted of a crime. State ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377, 1934 N.D. LEXIS 178 (N.D. 1934).

Discriminatory Voting Tests Prohibited.

Congress is empowered, as it did in the Voting Rights Act Amendments of 1970, 42 USCS § 1973aa, to prohibit use of literacy tests or other devices used to discriminate against voters on account of their race in all state and national elections. Oregon v. Mitchell, 400 U.S. 112, 91 S. Ct. 260, 27 L. Ed. 2d 272, 1970 U.S. LEXIS 1 (U.S. 1970).

“Electors” Defined.

The word “electors”, as used in art. VII, § 4 of the constitution, means all persons possessing qualifications prescribed in this section in order to entitle them to vote. State ex rel. McCue v. Blaisdell, 18 N.D. 31, 119 N.W. 360, 1909 N.D. LEXIS 2 (N.D. 1909).

Federal Elections.

Provisions of the Voting Rights Act Amendments of 1970, 42 USCS § 1973bb-1, setting minimum voting age at eighteen are constitutional and enforceable insofar as they pertain to federal elections but are unconstitutional and unenforceable insofar as they pertain to state and local elections. Oregon v. Mitchell, 400 U.S. 112, 91 S. Ct. 260, 27 L. Ed. 2d 272, 1970 U.S. LEXIS 1 (U.S. 1970).

Legislative Power.

This section of the Constitution is not self-executing; it is intended that the voting franchise is subject to legislative control. Miller v. Schallern, 8 N.D. 395, 79 N.W. 865, 1899 N.D. LEXIS 25 (N.D. 1899).

Place of Voting.

This section does not prescribe a rule for voting and did not compel a voter necessarily to vote at a place within the boundaries of the ward in which he resided, even though every ward was by statute a voting precinct. Kerlin v. City of Devils Lake, 25 N.D. 207, 141 N.W. 756 (1913) Ann. Cas. 624 (1913).

Presidential Elections.

As it did in the Voting Rights Act Amendments of 1970, 42 USCS § 1973aa-1, Congress can prohibit states from disqualifying voters in elections for presidential and vice-presidential electors because they have not met state residency requirements, and can set residency requirements and provide for absentee balloting in presidential and vice-presidential elections. Oregon v. Mitchell, 400 U.S. 112, 91 S. Ct. 260, 27 L. Ed. 2d 272, 1970 U.S. LEXIS 1 (U.S. 1970).

Primary Elections.

The primary election established by chapter 109, S.L. 1905, was an election within the meaning of this section. Johnson v. Grand Forks County, 16 N.D. 363, 113 N.W. 1071, 1907 N.D. LEXIS 77 (N.D. 1907).

Chapter 213, S.L. 1911, making the right of suffrage at a primary dependent upon the assertion of a partisan belief by the elector and forbidding an elector from voting who belongs to no political party, was not unconstitutional, as requiring an added franchise requirement. State ex rel. Miller v. Flaherty, 23 N.D. 313, 136 N.W. 76, 1912 N.D. LEXIS 84 (N.D. 1912).

Residence.

The place of one’s residence for the purpose of voting is where he has his established home, the place where he is habitually present, and to which, when he departs, he intends to return. Nelson v. Gass, 27 N.D. 357, 146 N.W. 537 (1914) Ann. Cas. 796 (1914).

Secrecy in Voting.

Former section mandating secret ballot was not impaired by requiring a voter, at the continuation of the June primary at the general election, to call for a party ballot in voting for a senator. State ex rel. McCue v. Blaisdell, 18 N.D. 55, 118 N.W. 141, 1908 N.D. LEXIS 99 (N.D. 1908), State ex rel. McCue v. Blaisdell, 18 N.D. 55, 118 N.W. 141, 1908 N.D. LEXIS 99 (N.D. 1908).

Votes cast were illegal if an election judge accompanied voters to a booth, where no disability appeared. Grubb v. Dewing, 48 N.D. 774, 187 N.W. 157, 1922 N.D. LEXIS 100 (N.D. 1922).

A qualified elector was not denied his privilege of secrecy merely because an election inspector neglected to endorse the ballot cast by such elector. Torkelson v. Byrne, 68 N.D. 13, 276 N.W. 134, 1937 N.D. LEXIS 125 (N.D. 1937).

Although a qualified elector cannot be compelled to disclose for whom he voted, this privilege is personal and may be waived. Torkelson v. Byrne, 68 N.D. 13, 276 N.W. 134, 1937 N.D. LEXIS 125 (N.D. 1937).

Unqualified Elector.

Court trying an election contest could require a voter who was not qualified to vote to disclose how he voted. Wehrung v. Ideal Sch. Dist., 78 N.W.2d 68, 1956 N.D. LEXIS 137 (N.D. 1956).

Women's Suffrage.

Qualified electors, until adoption of the 1920 amendment, were male persons only, with other qualifications enumerated. Wagar v. Prendeville, 21 N.D. 245, 130 N.W. 224, 1911 N.D. LEXIS 81 (N.D. 1911).

This section did not preclude the assembly from authorizing women to vote for village officers. Spatgen v. O'Neil, 40 N.D. 618, 169 N.W. 491, 1918 N.D. LEXIS 113 (N.D. 1918).

Conviction of Crime.

Felony.

A felony under prior section on disenfranchisement was a crime which was and might be punishable with death or imprisonment in the penitentiary. State ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377, 1934 N.D. LEXIS 178 (N.D. 1934).

Inapplicability to Ordinances and Local Law.

The power of the people to initiate and refer legislation under this section, does not include a reserved power to initiate or refer local laws or ordinances; accordingly, former N.D.C.C. § 40-05.1-09 did not contravene this section. Pelkey v. Fargo, 453 N.W.2d 801, 1990 N.D. LEXIS 63 (N.D. 1990).

Power to Initiate.

Committee chairman’s request to direct the Secretary of State to place the initiated measure on the ballot for the November 2, 2010, general election was denied as the plain language of N.D. Const. art. III required the petitions to contain the sponsors’ names and addresses, which was consistent with the enabling legislation in N.D.C.C. § 16.1-01-09(2); there was no compliance with the constitutional mandate that the petition, including every circulated petition, contain the sponsors’ names and addresses. Thompson v. Jaeger, 2010 ND 174, 788 N.W.2d 586, 2010 N.D. LEXIS 175 (N.D. 2010).

State fair association’s regulation limiting the right to circulate initiative petitions at the state fair did not unconstitutionally hamper, restrict, or impair the power of the people to initiate; rather, it structured and accommodated the petition circulation process at the state fair together with all of the other activities simultaneously occurring there. Bolinske v. North Dakota State Fair Ass'n, 522 N.W.2d 426, 1994 N.D. LEXIS 211 (N.D. 1994), cert. denied, 514 U.S. 1004, 115 S. Ct. 1315, 131 L. Ed. 2d 197, 1995 U.S. LEXIS 1860 (U.S. 1995).

N.D.C.C. § 16.1-10-06.2 did not violate N.D. Const. art. III, § 1, as its restriction on collecting signatures near open polling places was a reasonable restriction on the ballot initiative process. State v. Francis, 2016 ND 154, 882 N.W.2d 270, 2016 N.D. LEXIS 151 (N.D.), cert. denied, — U.S. —, 137 S. Ct. 579, 196 L. Ed. 2d 447, 2016 U.S. LEXIS 7288 (U.S. 2016).

Recall.

N.D. Const. art. III, §§ 1 and 10 do not permit the recall of North Dakota’s congressional delegation. Therefore, a mandamus petition was properly denied because the North Dakota Secretary of State could not have been ordered to approve a petition seeking to recall a United States Senator. RECALLND v. Jaeger, 2010 ND 250, 792 N.W.2d 511, 2010 N.D. LEXIS 244 (N.D. 2010).

“These Powers.”

The term “these powers” refers only to the powers reserved in the people under this section so as to prohibit any law which would hamper, restrict, or impair the powers reserved in the people; such term does not encompass the “legislative power”. SunBehm Gas v. Conrad, 310 N.W.2d 766, 1981 N.D. LEXIS 379 (N.D. 1981).

Setting of Fee by State Auditor.

N.D.C.C. § 54-10-14 is not an unconstitutional delegation of legislative authority under this section or N.D. Const., art. XI, § 26, since the delegated power to ascertain facts for operation of a law is not unconstitutional if a reasonable guideline is given and since the legislated guideline of “related costs” protects against an arbitrary exercise of the power by the State Auditor in setting the fee for reviewing a public accountant’s audit report. Syverson, Rath & Mehrer, P.C. v. Peterson, 495 N.W.2d 79, 1993 N.D. LEXIS 13 (N.D. 1993).

Full Text of Measure.

Enjoining of the Secretary of State of North Dakota from placing an initiated measure on a ballot was appropriate because the petition to initiate the measure did not comply with the constitutional requirement that it contain the full text of the measure as the petition incorporated a statute by reference. Haugen v. Jaeger, 2020 ND 177, 948 N.W.2d 1, 2020 N.D. LEXIS 177 (N.D. 2020).

Legislative Purpose.

The former requirement that an initiative petition contain the full text of the measure initiated was satisfied where the text incorporated in the initiative petition completely expressed the legislative purpose. Anderson v. Byrne, 62 N.D. 218, 242 N.W. 687, 1932 N.D. LEXIS 170 (N.D. 1932).

Committee chairman’s request to direct the Secretary of State to place the initiated measure on the ballot for the November 2, 2010, general election was denied as the plain language of N.D. Const. art. III required the petitions to contain the sponsors’ names and addresses, which was consistent with the enabling legislation in N.D.C.C. § 16.1-01-09(2); there was no compliance with the constitutional mandate that the petition, including every circulated petition, contain the sponsors’ names and addresses. Thompson v. Jaeger, 2010 ND 174, 788 N.W.2d 586, 2010 N.D. LEXIS 175 (N.D. 2010).

Petition Containing Impermissible Statements.

Supreme court set aside decision of the secretary of state approving form of petition for referral of senate bill where the petition, although otherwise proper in form, contained an extraneous impermissible statement of intent which was not required by the constitution or statutes. Haugland v. Meier, 335 N.W.2d 809, 1983 N.D. LEXIS 317 (N.D. 1983); Lips v. Meier, 336 N.W.2d 346, 1983 N.D. LEXIS 327 (N.D. 1983).

Because of countervailing circumstances producing a form of excusable neglect, including apparent good faith of the sponsors and the lack of time in which to make corrections or amendments, the supreme court did not reverse the secretary of state’s approval of a referral petition which, although not containing an impermissible extraneous statement of intent, contained statements that served no useful purpose and were inaccurate and misleading, particularly with reference to the election when the matter was to be placed on the ballot and the number of signatures purportedly contained in each petition; however, supreme court warned that repetition of similar errors in the future will not qualify as a form of excusable neglect and will be cause for disapproval. Haugland v. Meier, 339 N.W.2d 100, 1983 N.D. LEXIS 394 (N.D. 1983).

Secretary’s Review of Petition.

The secretary’s constitutional responsibility under this section to approve the form of a petition, is limited to ascertaining whether the petition complies with the statutory requirements for form and whether the petition contains impermissible, extraneous statements. In reviewing a petition for form, the secretary must not be concerned with the merits of the petition or with the substance of its text. Municipal Servs. Corp. v. Kusler, 490 N.W.2d 700, 1992 N.D. LEXIS 186 (N.D. 1992).

Nothing in N.D. Const. art. III, § 10 compels the North Dakota Secretary of State to approve a recall petition solely on the basis of its form when its purpose cannot be accomplished under North Dakota law; unlike N.D. Const. art. III, § 2, N.D. Const. art. III, § 10 does not restrict the North Dakota Secretary of State’s authority in reviewing a petition to its form. Therefore, a mandamus petition was properly denied because the North Dakota Secretary of State did not abuse any authority by denying a recall petition that was not constitutionally compliant. RECALLND v. Jaeger, 2010 ND 250, 792 N.W.2d 511, 2010 N.D. LEXIS 244 (N.D. 2010).

Substance or Merits of Text.

This section does not authorize a review of the substance or merits of the text of the measure. When a petition is challenged, neither the secretary nor the Supreme Court should be concerned with the substance or merit of the proposed measure, because under the North Dakota system of government, the resolution of a proposal’s merit rests with the electorate. Municipal Servs. Corp. v. Kusler, 490 N.W.2d 700, 1992 N.D. LEXIS 186 (N.D. 1992).

Post-Office Address.

Designation of city and state was a sufficient compliance with this section’s requirement of a “post-office address”. McCarney v. Meier, 286 N.W.2d 780, 1979 N.D. LEXIS 332 (N.D. 1979).

Requirements.

Committee chairman’s request to direct the Secretary of State to place the initiated measure on the ballot for the November 2, 2010, general election was denied as the plain language of N.D. Const. art. III required the petitions to contain the sponsors’ names and addresses, which was consistent with the enabling legislation in N.D.C.C. § 16.1-01-09(2); there was no compliance with the constitutional mandate that the petition, including every circulated petition, contain the sponsors’ names and addresses. Thompson v. Jaeger, 2010 ND 174, 788 N.W.2d 586, 2010 N.D. LEXIS 175 (N.D. 2010).