Opinions

Cass Co. Joint Water Resource District v. 1.43 Acres of Land, et al. 2002 ND 83
Docket No.: 20010217
Filing Date: 5/14/2002
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: A condemnation action is purely in rem, and does not require acquisition of in personam jurisdiction over the owners of the land.
Tribal sovereign immunity does not bar a condemnation action in state court involving land which is owned in fee by the tribe and which is not reservation land, allotted land, aboriginal land, or trust land.
Once the federal government removes restraints on alienation of Indian land by granting a fee patent to a private party, the land does not become inalienable again under the Federal Nonintercourse Act, 25 U.S.C. 177, when it is purchased in fee by an Indian tribe.

Estate of Hass 2002 ND 82
Docket No.: 20010233
Filing Date: 5/14/2002
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: The trial court's decision whether to remove a personal representative for cause will not be set aside on appeal absent an abuse of discretion.
If an estate inventory is filed with the court, the personal representative is required to provide a copy only to interested persons who request it.
The trial court may award attorney fees for legal services in a will contest if the proceedings benefit the estate as a whole.

Uren v. Dakota Dust-Tex, Inc. 2002 ND 81
Docket No.: 20010205
Filing Date: 5/14/2002
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Absent an express agreement to the contrary, a tenant is an implied co-insured under the landlord's property insurance policy, and the insurer may not seek subrogation against the tenant for damages caused by the tenant's negligence.
Ordinary negligence is not a "willful act or misconduct" under a lease provision requiring the tenant to continue paying rent if the building is destroyed by the "willful act or misconduct" of the tenant.
A landlord who receives insurance payments exceeding the actual value of the damages allegedly caused by the tenant's negligence cannot recover against the tenant for "uninsured losses."
Attorney travel expenses to attend a pretrial product inspection are not recoverable as costs or disbursements.

Luallin, et al. v. Koehler, et al. 2002 ND 80
Docket No.: 20010301
Filing Date: 5/15/2002
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: The requirements for registration of securities and dealers under the North Dakota Securities Act apply only to securities which are sold or offered for sale in this state and only to dealers or agents who offer for sale or sell any securities within or from this state.
For purposes of liability for selling securities in violation of the North Dakota Securities Act, what constitutes participation or aid in any way in making a sale of securities is determined upon the facts of each case.
Fraud must be proved by clear and convincing evidence, and that higher burden of proof should be considered by the trial court in determining whether there exists a genuine issue of material fact as to fraud.

State v. Steiger 2002 ND 79
Docket No.: 20010240
Filing Date: 5/14/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: When sufficiency of the evidence is challenged, the evidence is examined in the light most favorable to the verdict to see whether a rational trier of fact could have found the essential elements of the crime were established beyond a reasonable doubt.
In a criminal case tried without a jury, the trial court need only make a general finding of guilty or not guilty.

Interest of J.R. and L.R. (CONFIDENTIAL) 2002 ND 78
Docket No.: 20010264
Filing Date: 5/14/2002
Case Type: Appeal - Civil - Juvenile Law
Author: Maring, Mary

Highlight: A child is deprived if clear and convincing evidence shows the child is without the proper parental care necessary for the child's physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child's parents or guardians.

Whiteman v. State 2002 ND 77
Docket No.: 20010224
Filing Date: 5/14/2002
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: A defendant cannot be required to demonstrate how his appeal would have been successful in order to establish that he was prejudiced by his attorney's failure to pursue a requested appeal.
If the evidence raises a reasonable inference of ineffective assistance of counsel, an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel is required.

Harger v. Harger 2002 ND 76
Docket No.: 20010186
Filing Date: 5/14/2002
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: When a motion seeking modification of a child support order is brought within one year after its entry, the movant has the burden of demonstrating a material change in circumstances and the burden of presenting sufficient evidence to justify modification under the child support guidelines.
A remedial sanction for contempt of court is appropriate for a willful failure to comply with a court order directing compliance with the provisions of a divorce decree.

State v. Paul 2002 ND 75
Docket No.: 20010272
Filing Date: 5/14/2002
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: The trial court's judgment of conviction for the unauthorized use of a motor vehicle is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Wilson v. Velva Rental Housing, Inc. 2002 ND 74
Docket No.: 20010308
Filing Date: 5/14/2002
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Summary judgment dismissing contract claim is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Disbrow 2002 ND 73
Docket No.: 20010257
Filing Date: 5/14/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: The defendant's conviction on multiple counts of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Peters-Riemers v. Riemers (See Docket Memo) 2002 ND 72
Docket No.: 20010135
Filing Date: 5/14/2002
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: When the state constitution was adopted in 1889 there was no common law or statutory right to a jury trial in divorce actions, and, therefore, N.D. Const. art. I, sec. 13 does not provide a right to a jury trial in divorce actions.
Failure to provide truthful and accurate financial information to a potential spouse upon entering a premarital agreement is sufficient ground to render the agreement unenforceable.
N.D. Const. art. XI, sec. 23, providing that a woman's property, upon marriage, remains her separate property and is not liable for the debts of her husband, is not part of our divorce law and has no application to the division of marital assets in dissolving a marriage.

State v. Norby 2002 ND 71
Docket No.: 20010144
Filing Date: 4/19/2002
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: Defenses or objections based on defects in the institution of a prosecution or on defects in the criminal complaint must be raised prior to trial, unless the complaint failed to charge an offense or the district court did not have jurisdiction.

Negaard v. Negaard (cross-ref. w/20030174) 2002 ND 70
Docket No.: 20010251
Filing Date: 4/18/2002
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A move sought in good faith and to gain legitimate advantages for the custodial parent and the child must not be denied simply because visitation cannot continue in the existing pattern.
A custodial parent's past behavior is a relevant fact for the trial court to weigh in considering his or her motion to change a child's residence to another state.

Berg v. Berg 2002 ND 69
Docket No.: 20000355
Filing Date: 4/18/2002
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: There is a presumption only supervised visitation will be allowed a noncustodial parent who has committed domestic violence, and to award unsupervised visitation the court must enter specific findings showing there is clear and convincing evidence the presumption has been rebutted.
Under N.D.C.C. 14-09-08.10, the custodial parent must provide health insurance coverage for the children if it is available at no or nominal cost. Otherwise, the noncustodial parent must provide health insurance coverage for the children if it is available at reasonable cost. If neither situation exists, the trial court has discretion to make other provisions for health insurance coverage for the children.

Knutson, et al. v. The County of Barnes, et al. 2002 ND 68
Docket No.: 20010203
Filing Date: 4/18/2002
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Neumann, William

Highlight: Failure to present a claim against the state to the office of management and budget within one hundred and eighty days requires dismissal of a subsequent action. Summary judgment is appropriate when a party fails to plead the necessary elements to satisfy the statutory RICO requirements.

Marschner v. Marschner (cross-ref. w/20000172) 2002 ND 67
Docket No.: 20010220
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Divorce - Property
Author: Neumann, William

Highlight: The burden is on the complaining party to demonstrate a trial court's findings of fact are clearly erroneous.

DesLauriers v. DesLauriers 2002 ND 66
Docket No.: 20010145
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The deliberate infliction of mental anguish upon one parent and the children by the other parent is relevant to the custody determination and may be considered by the trial court.
In a custody determination, a trial court has no obligation to consider the preference of an immature child, but the trial court may determine whether or not a child is capable of intelligently choosing between parents.
The debt produced by using credit cards to benefit the entire family is, like property, neither uniquely the husband's nor the wife's and is to be allocated by the trial court in its equitable division of the marital estate.

Olander Contracting v. Gail Wachter Investments, et al. 2002 ND 65
Docket No.: 20010086
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Indemnification is a remedy allowing a party to recover reimbursement from another for the discharge of a liability that, as between them, should have been discharged by the other.
The district court may enter summary judgment on its own motion as long as the losing party was on notice it had to come forward with all its evidence.
An appealing party has the burden of establishing that the trial court erred and that the error was highly prejudicial to the appellant's cause.
Without supportive reasoning or citations to relevant authorities, an argument is without merit.
A party waives an issue by not providing supporting argument.
A trial court has broad discretion over the nature and scope of written questions submitted to the jury, and appellate review is limited to determining whether the trial court abused its discretion.
North Dakota's prompt payment statute, N.D.C.C. ch. 13-01.1, does not apply while there is a reasonable dispute between a governmental agency and a business over the amount due or over compliance with a contract for property or services.

Isaak v. Sprynczynatyk 2002 ND 64
Docket No.: 20010291
Filing Date: 4/16/2002
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: A driving record is a regularly kept record, and establishes prima facie its contents.
A party appealing from an administrative hearing officer's decision must comply with the specifications-of-error requirement.

Western National Mutual Ins. Co. v. UND 2002 ND 63
Docket No.: 20010118
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: N.D.C.C. 26.1-32-01 and 26.1-32-03 codify the efficient proximate cause doctrine for determining insurance coverage for property damage where an excluded peril and a covered peril contribute to the damage.
An insurer may not contractually exclude coverage when a covered peril is the efficient proximate cause of damage even though an excluded peril may have contributed to the damage.
An insured may be entitled to prejudgment interest under N.D.C.C. 32-02-04 when an insurer denies a claim based on an exclusion from coverage, regardless of whether the insured has determined the exact amount of the loss if the amount was ascertainable under a proper construction of the contract.
Under N.D.C.C. 32-23-08, an insured is entitled to attorney fees incurred in an insurer's declaratory judgment action in which the court determines there is insurance coverage.

State v. Knowels (cross-ref. w/20030093) 2002 ND 62
Docket No.: 20010147
Filing Date: 4/16/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Failure to register as a sex offender is not a strict liability offense but, instead, includes the culpable mental state of "willfully."
A crime is completed when all of its essential elements are present and complete.

Olson, et al. v. Bismarck Parks and Recreation District 2002 ND 61
Docket No.: 20010249
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Personal Injury
Author: Kapsner, Carol

Highlight: The recreational use immunity statutes do not violate the state equal protection clause when applied to winter sledders injured on a hill owned, operated, and maintained by a public landowner.

Anderson, et al. v. Heinze 2002 ND 60
Docket No.: 20010127
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: No counterclaim can be interposed in an eviction action, except as a setoff to a demand for damages or for rents and profits.
In an eviction action, the defendant may show the character of the possessory rights claimed by the parties, but the right to possession of the real estate is the only fact that can be litigated unless either damages or rent is claimed.

Klagues, et al. v. Maintenance Engineering 2002 ND 59
Docket No.: 20010213
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Contracts
Author: Neumann, William

Highlight: The class-action "joint and common interest" generally exists if one class member's failure to collect would increase the recovery of the remaining members, or if the defendant's total liability does not depend on how the recovery of the claim is distributed among the class members. A joint and common interest is not the same as a common question of law or fact.
The class-action "incompatible standards" generally occur when the party opposing the class certification would be unable to comply with one judgment without violating the terms of another judgment.
If claims or defenses of members of the proposed class are based on unique facts or individual relationships with the opposing party, class-action certification is inappropriate.

Wolfe v. Wolfe 2002 ND 58
Docket No.: 20010276
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Permanent disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Vincent (Cross-Ref. w/19980185) 2002 ND 57
Docket No.: 20010218
Filing Date: 4/16/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(5) and (7).

State v. Radcliffe 2002 ND 56
Docket No.: 20010254
Filing Date: 4/16/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Judgment of conviction for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

BTA Oil Producers, et al. v. MDU Resources Group, et al. 2002 ND 55
Docket No.: 20010122
Filing Date: 4/16/2002
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: When an impoverishment results from a valid contractual arrangement made by a party, the result is not contrary to equity and there has been no unjust enrichment.
Unjust enrichment applies only in the absence of a contract between the parties, and there can be no implied-in-law contract where there is an express contract between the parties relative to the same subject matter.
Affidavits containing conclusory statements unsupported by specific facts are insufficient to raise a genuine issue of material fact precluding summary judgment.
When a party opposing summary judgment fails to invoke N.D.R.Civ.P. 56(f), the possibility that further discovery will yield favorable evidence raising an issue of material fact is not a ground to deny the motion.
Whether an agreement is a contract for sale governed by the Uniform Commercial Code is not decided by the labels used by the parties to characterize the transaction, but by the substance of the transaction and intent of the parties.
The filing of a motion to intervene, accompanied by a proper pleading, begins an action for purposes of the statute of limitations.

Petition to Change Resident Chambers from Watford City to Minot 2002 ND 54
Docket No.: 20020048
Filing Date: 4/8/2002
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship transferred from Watford City to Minot.

Kelsh v. Jaeger 2002 ND 53
Docket No.: 20020060
Filing Date: 3/28/2002
Case Type: Original Proceeding - Civil - Writ of Prohibition
Author: Per Curiam

Highlight: The Legislature can truncate senate terms when reasonably necessary to accomplish a constitutional mandate or directive.
It is an impermissible delegation of legislative power for the Legislature to place in one person the unfettered discretion to stop an election.
When reapportionment results in a substantial constituency change, the constitutional requirement that a senator be elected from a district may justify truncating an incumbent senator's term to give the electorate an opportunity to elect a senator from that district.

Froistad v. State 2002 ND 52
Docket No.: 20010111
Filing Date: 3/18/2002
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: A defendant's oral statement may be treated as a motion to withdraw a guilty plea.
When accepting a factual basis for a guilty plea, a district court may consider information beyond what is presented at the plea hearing, including information in a presentence report.
A district court is not required to inquire about the specific type of medications, the dosages, and the effect the medications might have on a defendant's faculties before it accepts a guilty plea, as long as it finds the plea is voluntary.
A telephone conference at which the district court informs the parties of a ruling is not a critical stage of a trial requiring the defendant's presence.

Wagaman v. Burke 2002 ND 51
Docket No.: 20010260
Filing Date: 3/15/2002
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: An order changing summer custody into summer visitation is an order establishing custody for purposes of the two-year restriction on motions to change custody.

Interest of J.D. (CONFIDENTIAL) 2002 ND 50
Docket No.: 20020049
Filing Date: 3/12/2002
Case Type: Appeal - Civil - Mental Health
Author: VandeWalle, Gerald

Highlight: The statute requires evidence that less restrictive conditions were considered to affirm a district court's commitment order as the least restrictive course of treatment appropriate for an individual.
The statute requires other forms of intervention be considered before a district court orders forced medication as the least restrictive form of intervention necessary to meet an individual's treatment needs.
Without explanation, mere conclusory statements by the treating psychiatrist and other physician are not helpful in determining whether a district court should authorize involuntary treatment with prescribed medications.

Peters-Riemers v. Riemers (See Docket Memo) 2002 ND 49
Docket No.: 20010274
Filing Date: 3/12/2002
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: An eviction action may be brought to enforce the terms of a divorce judgment.
Issues not presented to the trial court will not be considered for the first time on appeal.

City of Grand Forks v. Thong 2002 ND 48
Docket No.: 20010246
Filing Date: 3/12/2002
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: The legislature set twenty-eight days as the time a defendant in municipal court has to request a trial by jury.
Once a defendant requests a jury trial, a subsequent waiver of the right to a jury trial must be express.
Without evidence in the files of a municipal court of a defendant's obligation to appear, there is insufficient evidence to prove the defendant failed to appear.

Dufner v. Dufner 2002 ND 47
Docket No.: 20010163
Filing Date: 3/12/2002
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: If the evidence establishes one of the grounds for divorce, it is not necessary for the court to make findings on other available grounds.
For the purposes of determining a child support obligation, temporary income is included in the obligor's gross income.
Primary caretaker status does not enjoy paramount status in a child custody determination.

Dalan v. Paracelsus Healthcare Corp. 2002 ND 46
Docket No.: 20010269
Filing Date: 3/12/2002
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: When a party fails to establish the existence of a factual dispute on an essential element of his claim, on which he will bear the burden of proof at trial, summary judgment is appropriate.
A claim for unjust enrichment does not apply when an express contract exists.

Opp v. Ward Co. Social Services Bd., et al. 2002 ND 45
Docket No.: 20010199
Filing Date: 3/12/2002
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Assets are actually available for Medicaid eligibility purposes when the applicant has a legal interest in a liquidated sum and has the ability through reasonable legal means to attempt to make the sum available for support.

Henderson v. Director, N.D. Dept. of Trans. 2002 ND 44
Docket No.: 20010222
Filing Date: 3/12/2002
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: The Supreme Court exercises a limited review in appeals involving drivers' license suspensions or revocations.
Reliability and accuracy of an Intoxilyzer test result is established by demonstrating compliance with the methods adopted by the state toxicologist.

State v. Schmidt 2002 ND 43
Docket No.: 20010166
Filing Date: 3/12/2002
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Neumann, William

Highlight: Absent an offer of proof to support the claim, a trial court does not err in denying a motion in limine for a jury instruction on an affirmative defense of innocent mistake of fact.

Wahl v. Country Mutual Ins. Co., et al. 2002 ND 42
Docket No.: 20010262
Filing Date: 3/12/2002
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: The statutory requirement that an insurer give at least ten days notice of cancellation of a commercial insurance policy during the term of the policy does not require an insurer to provide notice of cancellation when the policy term expires.
The statutory requirement that an insurer give at least thirty days notice of intent not to renew a commercial insurance policy does not require an insurer to provide a notice of nonrewal when a policy term expires and the insured has not paid a renewal premium.

State v. Morrison 2002 ND 41
Docket No.: 20010105
Filing Date: 3/12/2002
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Judgment of conviction for assaulting a police officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Aipperspach 2002 ND 40
Docket No.: 20010142
Filing Date: 3/12/2002
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Denial of motion to suppress and judgment of conviction for abuse of child in violation of N.D.C.C. 14-09-22 summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Dennison v. N.D. Dept. of Human Serv. 2002 ND 39
Docket No.: 20010250
Filing Date: 2/22/2002
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: The State's recorded homestead statement for old age assistance benefits under N.D.R.C. 50-0707 (1943) affects the right or interest of the State in land in North Dakota under the exception to the Marketable Record Title Act in N.D.C.C. 47-19.1-11(2).
In a quiet title action, parties claiming an interest in a tract of land are entitled to an adjudication of the extent, validity, superiority, and priority of their claims to the land.

Gruebele, et al. v. Geringer 2002 ND 38
Docket No.: 20010149
Filing Date: 2/22/2002
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: A claimant's action to quiet title based on adverse possession will fail when the claimant is unable to prove hostile, exclusive, and continuous possession for the statutorily required time.

Kelly v. Kelly 2002 ND 37
Docket No.: 20010165
Filing Date: 2/21/2002
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: An order changing custody is a finding of fact, which will not be disturbed on appeal unless clearly erroneous.
When the previous custody award was based on the parties' stipulation, the trial court must consider all relevant evidence in making a considered and appropriate custody decision.

State v. Hirschkorn 2002 ND 36
Docket No.: 20010094
Filing Date: 2/21/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: Because of the importance of an accused's confrontation rights, the safeguards built into N.D.R.Ev. 803(24), allowing admission in evidence of a child's hearsay statements about sexual abuse, must be strictly observed.
When there is a total lack of factual support for admission of a child's hearsay statements under N.D.R.Ev. 803(24) and a probability that the erroneous admission of the hearsay statements affected the outcome of the trial, admission of the statements is obvious error entitling the defendant to a new trial.

Zeller v. Zeller 2002 ND 35
Docket No.: 20010134
Filing Date: 2/21/2002
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: When the relevant factors for consideration in determining a motion to change the residence of a child to another state weigh in favor of the custodial parent's request to relocate the child, the trial court's denial of the motion is reversible error.
A stipulated divorce provision for an automatic change in custody upon the occurrence of a future event is unenforceable and the district court retains control over the rights of children, regardless of any contrary agreements of divorcing parties.

City of Jamestown v. Jerome 2002 ND 34
Docket No.: 20010219
Filing Date: 2/20/2002
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: A police officer is not fulfilling a community caretaking function when approaching a person under circumstances where it is obvious the person is neither in need of nor desires assistance.
Not all communications between law enforcement officers and citizens involve seizures implicating Fourth Amendment rights. A seizure within the context of the Fourth Amendment occurs only when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.