Lead Opinion
[¶ 1] Todd A. Roth appealed from a district court order denying his application for post-conviction relief. Roth argues his trial and appellate counsel was plainly ineffective for failing to challenge the nighttime provision of the warrant issued to search his home. We affirm.
I
[¶ 2] In late August 2002, the State charged Roth with possession of methamphetamine, possession of drug paraphernalia, and manufacture of a controlled substance. Roth was charged after law enforcement searched his home with a warrant during the early morning hours on August 28, 2002. Roth’s counsel filed a motion to suppress all evidence discovered in the search, arguing the warrant was not supported by probable cause and contained an illegal no-knock provision. The district court denied the motion to suppress. Roth entered a conditional guilty plea to the charges, reserving the right to appeal the adverse determination of the suppression motion.
[¶ 3] Roth’s counsel continued to represent him on appeal and raised the same issues regarding probable cause and the no-knock provision. In State v. Roth (Roth I),
[¶4] In January 2005, Roth filed an application for post-conviction relief, raising multiple issues related to the legality of the search and also claiming that he received ineffective assistance of counsel. The district court concluded Roth had already raised the same issues on direct appeal in Roth I and denied his application for post-conviction relief. Roth appealed, and in Roth v. State (Roth II),
[¶ 5] On remand, the district court considered Roth’s claims of ineffective assistance of counsel by examining the record. Roth had claimed his counsel was ineffective for two major reasons. Id. at ¶ 9. First, Roth argued his counsel failed to raise the issue of whether the searching officers actually entered using the no-knock provision, despite their claims that they did not. Id. Second, he contended his counsel was ineffective for failing to chai-
[¶ 6] As to the first claim, the district court found that Roth’s counsel had raised the issue of whether law enforcement entered using the no-knock provision in his reply brief about the suppression motion. Therefore, Roth’s counsel was not ineffective in that regard. As to the second claim, the district court found that counsel had never challenged the validity of the nighttime provision of the search warrant. The district court did not decide whether the nighttime warrant was supported by probable cause, but rather concluded the evidence would have been admissible in any event under the inevitable discovery doctrine. Because Roth failed to show that the evidence obtained from the nighttime search would have been suppressed, the district court concluded he had not proven ineffective assistance of counsel and denied his application for post-conviction relief. On this appeal, Roth renews his claim of ineffective assistance of counsel, relying solely on the ground that counsel failed to challenge the legality of the nighttime search warrant.
II
[¶ 7] The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel. Sambursky v. State,
[¶ 8] As to the first prong, the petitioner must overcome the strong presumption that counsel’s representation fell within the wide range of reasonable professional assistance. Laib v. State,
[¶ 9] In order to meet the second prong, the petitioner must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Roth II,
[¶ 10] Failure to file a pretrial suppression motion, by itself, does not equate to ineffective assistance of counsel. Ernst v. State,
Where defense counsel’s failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excluda-ble evidence in order to demonstrate actual prejudice.
Id. at 375,
[¶ 11] The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable on appeal. Rummer,
Ill
[¶ 12] Roth contends his trial and appellate counsel was plainly ineffective for failing to challenge the validity of the nighttime provision of the search warrant. In particular, Roth argues he would have prevailed on the suppression motion if his counsel had raised the issue of whether the nighttime warrant was supported by probable cause. Additionally, he claims the district court erroneously applied the inevitable discovery doctrine in this case.
[¶ 13] Because Roth argues that his counsel was plainly defective, we do not have the benefit of a post-conviction hearing transcript or an explanation from counsel. Rather, the merit of Roth’s claim must be determined solely from the facts in the record, particularly the affidavit in support of the search warrant. The record reveals the following facts.
[¶ 14] On August 20, 2002, Deputy Dion Bitz of the Metro Area Narcotics Task Force applied for a warrant to search Roth’s residence at 704 Concord Drive in Bismarck, North Dakota. Deputy Bitz’s affidavit in support of the search warrant stated, in relevant part:
4. Todd Roth is suspected of manufacturing methamphetamine at 704 Concord Drive.
5. The Task Force has received information from various sources regarding Todd Roth manufacturing controlled substances. In May, 2002, I observed Carla Haff s and Perry Anderson’s vehi*889 cles at the Todd Roth residence.... Perry Anderson resides in Mandan and is frequently observed at Paul Ereth’s residence in Mandan. The Task Force has received intelligence regarding Paul Ereth trafficking in narcotics.
[[Image here]]
9. On August 1, 2002,1 interviewed a confidential source who stated that Todd Roth cooks methamphetamine in the basement of his residence twice weekly and the source had been at the Todd Roth residence while he was cooking methamphetamine.
10. Surveillance has been conducted on the residence at 704 Concord Drive. On August 7, 2002, surveillance began at 11:30 p.m. [LJights were on in the basement of the residence. License checks were run on the vehicles parked in front of the home. One vehicle was registered to Perry Anderson, the other was registered to Rollin Manufacturing, New Salem. Shortly before 1:00 a.m., the basement lights were shut off and Perry Anderson left the residence. An unknown person left the residence with Perry Anderson, walked to the mailbox, looked around the area as Perry Anderson drove away and then returned to the residence.
[[Image here]]
13.On August 17, 2002, a Confidential Informant (Cl), who was the confidential source that officers spoke with on August 1, 2002, witnessed Todd Roth cooking methamphetamine at his residence. The Cl stated when the Cl walked in the residence, there was a cloud of smoke hanging in the residence. The Cl stated that Todd Roth is using the anhydrous method to cook due to the ammonia smell present while the Cl was at the residence. The Cl observed Todd Roth scraping a methamphetamine-like substance from a plate. The Cl described methamphetamine-like substance as a white substance, some in rock form, some in powder form.
14. The Cl has also provided information in the past that was independently corroborated and resulted in successful State and Federal prosecutions. The Cl has provided information which recently led to the arrest of a narcotics trafficker. Information the Cl has provided on other local drug traffickers has been independently corroborated.
15. I am requesting to be allowed to execute the warrant at any time of the day or night. This is necessary because the information gathered and surveillance conducted indicates that Todd Roth manufactures methamphetamine at night.
Based on the information contained in Deputy Bitz’s affidavit, the magistrate issued a no-knock warrant to search Roth’s residence “anytime day or night” within the next ten days.
[¶ 15] On August 28, 2002, law enforcement officers entered Roth’s home and executed the search warrant from about 12:37 a.m. until 2:40 a.m. Deputy Bitz testified that he waited to conduct the search until he knew Roth was at home. The officers knocked and announced their presence, and then entered with a breaching device when nobody opened the door. When the officers entered the residence, they observed Roth and two other men standing nearby looking at them. As a result of items discovered in the search, Roth was charged with possession of methamphetamine, possession of drug paraphernalia, and manufacture of a controlled substance.
A
[¶ 16] We note that the district court did not decide whether there was probable cause for a nighttime search. Rather, the
[¶ 17] Ultimately, in this ease, the district court held that Roth did not receive ineffective assistance of counsel because he would not have prevailed on his suppression motion. We will not disturb a correct result merely because the district court assigned an incorrect reason, if the result is the same under the correct law and reasoning. Klose v. State,
[1Í18] Whether probable cause exists to issue a search warrant is a question of law which is fully reviewable on appeal. State v. Utvick,
[¶ 19] It is well established that search warrants may be issued only upon a showing of probable cause. See, e.g., State v. Ebel,
[¶ 20] The purpose of Rule 41(c) is to protect citizens from being subjected to the trauma of unwarranted nighttime searches. Fields,
[¶ 21] However, despite the limitations of Rule 41(c), nighttime searches are permissible in certain circumstances. This Court has held that probable cause for a nighttime search exists upon a showing that the evidence sought may be quickly and easily disposed of if the warrant is not promptly executed. Fields,
[¶ 22] We have also recognized that “there may be a variety of circumstances that justify the authoriza
[¶ 23] Courts have upheld nighttime searches when there was particularized evidence of drug trafficking, sales, or manufacture which occurred late at night or in the early morning hours. See United States v. Randle,
[¶ 24] However, courts have found no necessity for a nighttime search when the warrant could have been effectively executed during daytime hours. See State v. Richardson,
[¶ 25] Furthermore, courts-have held that nighttime searches were illegal when the supporting affidavit contained boilerplate language or eonclusory statements rather than particularized facts. See Luckhardt,
[¶26] In this case, Deputy Bitz presented the magistrate with particularized information gathered through a confidential informant and surveillance. The confidential informant had been at Roth’s residence and provided detailed information about the manner in which Roth cooked methamphetamine. The informant specifically stated that Roth cooked methamphetamine twice weekly in the basement of his residence. Deputy Bitz vouched for the informant’s reliability and veracity in his supporting affidavit. See Roth I,
[¶ 27] We conclude the information contained in Deputy Bitz’s affidavit provided sufficient probable cause to justify a nighttime search. The confidential informant stated that Roth manufactured methamphetamine in his basement, and surveillance established that there was activity in the basement during the late nighttime hours. Surveillance also established that at least one other person connected with drug activity was in the residence at the time. These facts, taken together, indicate that Roth was likely manufacturing methamphetamine in his home at nighttime. Therefore, in order for law enforcement to catch Roth in the process of manufacturing methamphetamine, the search needed to be conducted at nighttime rather than in the daytime. If law enforcement searched Roth’s residence at a time when he was not manufacturing, it was reasonably probable that much of the evidence of the manufacturing
[¶ 28] The facts at issue in this case create a close question. However, we resolve doubtful or marginal cases in favor of the magistrate’s determination. We cannot say the magistrate erred in finding probable cause to justify a nighttime search when the affidavit contained particularized facts which, when read together, led to the reasonable conclusion that Roth was manufacturing methamphetamine at night.
[¶ 29] Because there was sufficient probable cause for a nighttime search, Roth would not have prevailed if his counsel had raised the issue either in a suppression motion or on direct appeal. Roth has not shown that he suffered actual prejudice because of counsel’s failure to challenge the nighttime provision of the search warrant. Therefore, we conclude Roth has not met his heavy burden of proving ineffective assistance of counsel.
B
[¶ 30] Assuming, for the purpose of discussion only, that there was no probable cause for a nighttime search, the evidence would be admissible under the good faith exception to the exclusionary rule.
[¶ 31] The threshold question is whether the federal exclusionary rule applies to a violation of N.D.R.Crim.P. 41(c)(1)(E). This Court has held that suppression is the appropriate remedy for an illegal nighttime search under Rule 41(c). See State v. Fields,
Rule 41 is an adaptation of Fed. R.Crim.P. 41 and is designed to implement the provisions of Article I, Section 8, of the North Dakota Constitution and the Fourth Amendment to the United States Constitution, which guarantee, “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.” To implement this constitutional protection, an illegal search and seizure will bar the use of such evidence in a criminal prosecution. The suppression sanction is imposed in order to discourage abuses of power by law enforcement officials in conducting searches and seizures.
Thus, the provision of Rule 41(c) governing nighttime warrants implicates substantive constitutional rights, particularly the right to be free from unreasonable searches and seizures under the Fourth Amendment. Cf. State v. Utvick,
[¶ 32] If the exclusionary rule applies when a statute or rule implicating substantive constitutional rights is violated, and the source of the exclusionary rule is the Fourth Amendment, then we must also consider the application of the good faith exception set forth in United States v. Leon,
(1) when the issuing magistrate was misled by false information intentionally or negligently given by the affiant; (2) when the magistrate totally abandoned her judicial role and failed to act in a neutral and detached manner; (3) when the warrant was based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) when a reasonable law enforcement officer could not rely on a facially deficient warrant.
Herrick, at ¶ 15 (citing Leon, at 923,
[¶ 33] Under the facts of this case, we conclude the good faith exception would apply because Deputy Bitz’s reliance on the search warrant was objectively reasonable. There is no evidence that the issuing magistrate was misled by false information or failed to act in a neutral manner. The warrant itself was not facially deficient. Deputy Bitz presented particularized facts in the supporting affidavit which he gathered from a confidential informant and through surveillance. The information indicated that Roth was manufacturing methamphetamine in his residence, most likely in the nighttime. The affidavit was not so lacking in indicia of probable cause that Deputy Bitz’s belief in its existence was entirely unreasonable. Therefore, Deputy Bitz reasonably relied on the issuing magistrate’s determination that a nighttime warrant was justified.
IV
[¶ 34] We conclude Roth would not have prevailed if his counsel had raised the issue of lack of probable cause for a nighttime search either in a suppression motion or on direct appeal. Because Roth did not
Dissenting Opinion
dissenting.
[¶ 36] I respectfully dissent. I disagree with the majority that the officer’s affidavit established probable cause for a nighttime search warrant. Therefore, I believe Roth’s counsel was ineffective for failing to raise whether there was probable cause for a nighttime search warrant. I also do not believe the good faith exception saves the invalid nighttime search of Roth’s residence. I would reverse the order denying post-conviction relief.
I. Ineffective Assistance of Counsel
[¶ 37] Roth argues his counsel was ineffective for failing to raise whether there was probable cause for a nighttime search warrant. Following Strickland v. Washington,
[¶ 38] Roth argues the record shows his counsel was plainly defective. “Assistance of counsel is plainly defective when the record affirmatively shows ineffectiveness of a constitutional dimension or the defendant points to some evidence in the record to support the claim.” Roth II,
[¶ 39] For the reasons I state below, Roth’s counsel fell below an objective standard of reasonableness because he failed to raise whether there was probable cause for the issuance of a nighttime search warrant. Had Roth’s counsel raised whether there was probable cause for a nighttime search warrant, the evidence seized during the nighttime search of Roth’s residence would have been suppressed because it was illegally obtained. Without this evidence, there is a reasonable probability that the outcome of the proceeding against Roth would have been favorable to him. Therefore, I am of the opinion Roth received ineffective assistance of counsel.
II. Nighttime Search Warrant
[¶ 40] Probable cause is required for the issuance of a search warrant. State v. Fields,
[¶ 41] Our Court has stated that Rule 41(c)(1)(E), N.D.R.Crim.P., is meant to protect North Dakota’s citizens “from being subjected to the trauma of unwarranted nighttime searches. Courts have long recognized that nighttime searches constitute greater intrusions on privacy than do daytime searches.” Fields,
[¶ 42] The majority points to two federal cases, United States v. Randle,
[¶ 43] The majority cites state court cases to support its conclusion that Bitz’s affidavit provided sufficient probable cause to justify a nighttime search warrant. However, even assuming that all of these states require probable cause for a nighttime search warrant, I believe these cases actually support a conclusion that there was not probable cause to justify a nighttime search warrant in this case. In these cases, there were particularized facts supporting the conclusion that evidence would be disposed of by morning, by use, sale, or removal from the property. See State v. Eichorn,
[¶ 44] The majority cites a number of cases in which courts have held there was no probable cause to issue a nighttime search warrant. These cases are more factually analogous to this case and state the better rule. In Fouse v. State,
[¶ 45] In State v. Richardson,
[¶ 46] Bitz’s affidavit contained a confidential informant’s statement that Roth cooked methamphetamine in his basement twice a week. Bitz’s affidavit also referred to one night of surveillance when the basement lights of Roth’s residence were on from 11:30 p.m. to before 1:00 a.m. Based
[¶ 47] The affidavit fails to set forth any facts that the confidential informant saw methamphetamine being manufactured at night; the confidential informant only indicated it was manufactured twice a week in the basement. Even if we assume Bitz’s conclusory statement that methamphetamine was manufactured at night is supported factually, Bitz set forth no facts indicating the methamphetamine or the hardware and chemicals used to manufacture the methamphetamine at Roth’s residence would be destroyed, removed, or hidden by morning.
[¶ 48] Bitz testified at the preliminary hearing that the search warrant for Roth’s residence was issued on August 20, 2002, but was not executed until August 28, 2002:
Q And your warrant was issued to you on August 20th; is that correct?
A Yes.
Q And you didn’t search until the 28th?
A That’s correct.
Q Any reason for the delay?
A Numerous reasons. We were shorthanded at the task force. There were other times where I drove by the residence and it was quiet, dark, no lights on, where I did not know if he was home, or not. So I was waiting for the time until he would be home.
The affidavit stated that the confidential informant last saw Roth cooking methamphetamine on August 17, 2002. Yet, Bitz waited eight days to execute the search warrant. This delay indicates Bitz did not have any concern that the sought-after evidence, including the methamphetamine laboratory, in Roth’s residence was going to be disposed of quickly and easily, or he would have executed the search warrant much sooner. This rather indicates an ongoing methamphetamine laboratory and that there was not probable cause for a nighttime search warrant.
[¶ 49] Roth was suspected of manufacturing methamphetamine. The majority appears to use this as the fact that supports the nighttime search warrant. The crime of manufacturing, however, does not require that the suspect be caught in the act. See N.D.C.C. § 19-03.1-23(1). Under N.D.C.C. § 19-03.1-23(1), “it is unlawful for any person to willfully ... manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance .... ” “Willfully” encompasses three different culpability levels: “intentionally, knowingly, or recklessly.” N.D.C.C. § 12.1-02-02(l)(e). Under N.D.C.C. § 19-03.1-01(16): “manufacture” means, in relevant part:
[T]he production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis,*899 or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container.
Finding evidence of a methamphetamine laboratory would suffice as proof of the crime under the statutes.
[¶ 50] Bitz’s affidavit states a mere belief that Roth manufactures at night, .without any supporting facts, and is not sufficient to justify a nighttime search warrant. The affidavit does not include any information that Roth manufactures at night, that he makes nighttime deliveries, that he disposes of, removes, or hides all chemicals, hardware, and paraphernalia after each time he manufactures, or that the quantity of drugs on the premises after manufacturing can easily be disposed of or destroyed. Particularized facts that the evidence to be seized is in danger of imminent removal or destruction, that the warrant can only be safely executed at nighttime, or that a nighttime search is justified to prevent the escape or removal of a person to be seized must be provided in the affidavit. See 2 Wayne R. LaFave, Search and Seizure § 4.7(b), at 651 n. 25 (4th ed.2004); see also State v. Knudson,
[¶ 51] At the March 24, 2003, telephonic hearing regarding the suppression decision, the trial court stated:
As far as the no-knock provision is concerned I think both of you realize that probable cause did not exist to support the issuance of the no-knock warrant to search the defendant’s residence. The affidavit did not provide evidence that knocking and announcing would have placed the executing officers in danger.
[[Image here]]
And then also the affidavit failed to provide any evidence that the drug or drug paraphernalia or cookware or related documents might be quickly disposed of without a no-knock warrant.
[¶ 52] The trial court, itself, at the telephonic suppression hearing, found that there were no facts in the affidavit to support that the drugs, drug paraphernalia, or cookware would be quickly disposed of, which was the basis for the nighttime provision. The provision in the search warrant authorizing the nighttime search stated:
YOU ARE COMMANDED, to search, within ten (10) days ..., serving this warrant and making this search anytime day or night being satisfied that the property sought is present or probably will be moved or destroyed and if the property is found there, to seize it.... (Emphasis added.)
[¶ 53] The inventory that was returned following the search, and Bitz’s and Detective Lynk’s testimony at the preliminary hearing, indicate that the majority of the items that would be used to manufacture methamphetamine were found, not in the basement, but in the kitchen of Roth’s residence, including an aluminum roasting pan, plastic bottle with solvent, pill containers, muriatic acid bottle, Ph paper, eye dropper, pie plate with residue, seventy blister packs, twenty-one boxes of pseu-doephedrine, five boxes of lithium batteries, and paper towels and coffee filters with residue on them. We do not know from this record the circumstances at the time of the entry, such as whether Roth was in the process of manufacturing methamphetamine or whether there were lights on in the basement. All we know is that Bitz saw that Roth was home and there was “traffic” at the Roth residence that night.
[¶ 55] In State v. Roth (“Roth I ”),
[¶ 56] Despite this, the majority says Bitz’s affidavit provided sufficient probable cause to justify a nighttime search. The majority appears to be propounding a per se rule for a nighttime search anytime there is an allegation of manufacturing methamphetamine. In Richards v. Wisconsin,
[¶ 57] The majority, at ¶ 27, makes the unfounded and factually unsupported assumption that “in order for law enforcement to catch Roth in the process of manufacturing methamphetamine” the search must be conducted at night. The facts of this case belie that very assumption. There is nothing in the record to suggest Roth was “in the process” of manufacturing the night the search warrant was executed. Bitz testified he merely waited to serve the warrant until he knew Roth was home and there were officers available to assist him. The majority of the items used to manufacture were found in the dishwasher or the garbage in the kitchen of the residence. Roth was charged with manufacturing methamphetamine and conditionally pled guilty to the offense. The majority also wrongly speculates Roth manufactured at night and only at night, and that the warrant could not be served during the day. The majority, at ¶27, concludes: “If law enforcement searched Roth’s residence at a time when he was not manufacturing, it was reasonably probable that much of the evidence of the manufacturing process, including the methamphetamine itself, would have been removed from the premises.” (Emphasis added.) This is a statement of a per se rule for methamphetamine nighttime manufacture. Granted, facts that establish the probability that the cookware, chemicals, and other drug paraphernalia used to manufacture methamphetamine will be destroyed, removed, or hidden by morning following each manufacture can create probable cause for a nighttime search, but none exist in this ease. The mere possibility or suspicion that these exigencies will happen is not enough for the particularized facts needed for a nighttime search warrant under our law, which requires proba
[¶ 58] Merely alleging someone cooks methamphetamine at night does not, in and of itself, support a nighttime search warrant. There must be something more in the affidavit supporting the issuance of the warrant. Such a per se rule, I believe, is contrary to our precedent and to our Court’s long-held belief that this greater intrusion of privacy must be offset by a greater showing of need.
[¶ 59] I am of the opinion that under the facts alleged in Bitz’s affidavit, there was no probable cause for a nighttime search warrant just like there was no probable cause for a no-knock search warrant.
III. Exclusionary Rule
[¶ 60] “The Fourth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and Article I, § 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures.” State v. Oxen,
[¶ 61] As the majority notes, our Court has held that suppression is the appropriate remedy for an illegal nighttime search under N.D.R.Crim.P. 41(c). See Fields,
(1) when the issuing magistrate was misled by false information intentionally or negligently given by the affiant; (2) when the magistrate totally abandoned her judicial role and failed to act in a neutral and detached manner; (3) when the warrant was based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) when a reasonable law enforcement officer could not rely on a facially deficient warrant.
Utvick,
[¶ 62] I am of the opinion that a reasonable law enforcement officer could not rely on this nighttime search warrant because, lacking any facts to support probable cause, it was facially deficient, and therefore, the good-faith exception does not apply. I am persuaded by the analysis of the Nebraska Supreme Court in State v. Fitch,
[¶ 63] In analyzing whether the good faith exception applied to the invalid nighttime search, the Nebraska Supreme Court first looked to a decision of the Arkansas Supreme Court for guidance.
In Hall v. State, supra, the Arkansas Supreme Court, noting the use of an objective standard, reasoned that the good-faith exception was not applicable because a reasonably well-trained officer would know that a nighttime search made without stating an underlying need for a nighttime search in the supporting affidavit is illegal despite the issuing magistrate’s authorization.
Fitch,
[T]he court held that for purposes of the good faith exception, an officer, who was the affiant in the affidavit submitted to secure the search warrant, could not objectively rely on the validity of a nighttime endorsement in a search warrant when he knew or should have known that no facts were set forth in the affidavit to show that nighttime service was necessary and when he knew that the drug operation he expected to expose was ongoing.
Id. at 348-49.
[¶ 64] The Nebraska Supreme Court noted that the standard underlying the application of the good-faith exception to a nighttime search is:
[W]hether the officer(s) had a good faith belief that the affidavit submitted in support of obtaining the search warrant stated facts sufficient to justify a nighttime search, not whether the officer(s) had a good faith belief that probable cause existed for the issuance of the search warrant.
Fitch,
[¶ 65] The Arkansas Supreme Court, in Fouse,
[¶ 66] Bitz, after consulting with other law enforcement and despite receiving no-knock authorization, knocked and announced his presence before executing the search warrant at Roth’s residence. See Roth I,
[¶ 67] Rule 41(c)(1)(E), N.D.R.Crim.P., requires that probable cause be shown for a nighttime search warrant. See State v. Knudson,
[¶ 68] In addition, the search warrant states it is relying on the affidavit of Bitz for probable cause and contained the following provision: “YOU ARE COMMANDED to search, ... serving this warrant and making this search anytime day or night being satisfied that the property sought is present or probably will be removed or destroyed ...”
[¶ 69] Our Court has held that a magistrate must authorize a nighttime search warrant by an appropriate provision in a search warrant. State v. Berger,
[¶ 70] Here, Bitz knew his affidavit did not provide any facts that supported the property sought would probably be removed or destroyed. By deductive reasoning, it becomes clear Bitz knew an underlying need for a nighttime search was lacking, and therefore, knew his affidavit was insufficient despite the magistrate’s authorization. Bitz relied on what he knew to be a facially deficient warrant. Therefore, the good-faith exception does not apply and suppression remains the appropriate remedy.
IV. Conclusion
[¶ 71] In conclusion, I would reverse the order denying the motion for post-conviction relief because Roth did not receive effective assistance of counsel under the facts of this case.