State v. Holly, 833 N.W.2d 15

Holly was convicted at bench trial of multiple counts related to possession of marijuana, Psilocyn, other controlled substances, and drug paraphernalia, with some counts tied to items found in his vehicle and others in his residence.
Information from Holly’s roommate/roommate’s friend led Agent Browne to suspect Holly would travel to Montana to obtain marijuana and prescription drugs and return to Minot.
A nighttime search warrant was issued for Holly’s vehicle and residence, originally limited to daytime and later amended to allow nighttime execution (anytime).
Officers seized marijuana, Clonazepam, Psilocyn, and glass smoking devices from the vehicle, and Testosterone Propionate, marijuana residue, scales, and paraphernalia from the residence.
Holly moved to suppress the evidence, and the trial court denied suppression for the vehicle but suppressed residence evidence due to lack of separate probable cause for nighttime entry; Holly was convicted on counts tied to vehicle evidence, and the residence evidence was later suppressed on appeal.
The Supreme Court affirmed in part (vehicle-based convictions) and reversed in part (residence-based convictions), remanding to amend suppression orders and judgments.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the residence search was validly nighttime-constitutional	Holly argues the residence warrant lacked separate probable cause for nighttime execution.	Holly contends the nighttime search was unlawful and the residence evidence should be suppressed.	Residence evidence suppressed; lack of separate nighttime probable cause.
Whether the vehicle search was supported by probable cause	State asserts totality of circumstances created probable cause for nighttime vehicle search.	Holly argues insufficient basis for nighttime search of the vehicle.	Vehicle evidence upheld; probable cause for nighttime search found.
Whether the trial court could sua sponte convict a lesser-included offense	State contends the court appropriately found lesser-included offense if supported by evidence.	Holly argues no basis to sua sponte find lesser-included offense without party motion.	Sua sponte conviction of possession of marijuana (lesser-included) proper under governing rules.
Whether the good-faith and inevitable-discovery doctrines apply to the residence search	State argues good-faith and inevitable-discovery save the residence evidence.	Holly argues the evidence should be suppressed because the nighttime warrant was invalid and bad faith occurred.	Good-faith exception not applicable; inevitable-discovery not applied; suppression of residence evidence affirmed.

State v. Beane, 2009 ND 146 (ND 2009) (affirmance when evidence supports findings of probable cause)
State v. Johnson, 2011 ND 48 (ND 2011) (probable-cause review; separation of nighttime vs daytime warrants)
State v. Guthmiller, 2002 ND 116 (ND 2002) (totality-of-circumstances approach to probable cause)
State v. Knudson, 499 N.W.2d 872 (ND 1993) (interplay of daytime/nocturnal warrants; probable cause standard)
State v. Roth III, 2007 ND 112 (ND 2007) (nocturnal warrants require separate probable cause; not mere presence of drugs)
State v. Fields, 2005 ND 15 (ND 2005) (no separate nocturnal probable cause where evidence would not be easily destroyed)
State v. Schmeets, 278 N.W.2d 401 (ND 1979) (affidavits must establish grounds for warrants; unsworn testimony not basis)
State v. Phelps, 297 N.W.2d 769 (ND 1980) (two-part inevitable-discovery test; bad faith requirement)
State v. Handtmann, 437 N.W.2d 830 (ND 1989) (inevitable-discovery doctrine limits; cannot sanction shortcuts)
State v. Morris, 331 N.W.2d 48 (ND 1983) (possession with intent to deliver encompasses simple possession)