Roth v. State

objective fell below an standard of rea- al conceivably counsel be explained could prej- sonableness and defendant was as trial strategy. “When the record on by perform- counsel’s deficient direct appeal inadequate udiced is to determine ance. whether the defendant received ineffective assistance, the defendant pursue the Bertram, 10, 39, 2006 ND 708 N.W.2d ineffectiveness claim post-conviction at a omitted). (citation appeal, On we do proceeding adequate where an record can second-guess not matters of trial tactics Strutz, made.” State v. to call such as whether certain witnesses. ¶ 26, 606 N.W.2d 886. State, Sayler See v. “ ‘[Strategic N.W.2d 559. choices made record, [¶ From our 29] review of this thorough investigation after of law and we conclude Schweitzer has failed on di- plausible options facts relevant to are vir appeal rect to establish he received ineffec- ” tually unchallengeable.’ Schlick tive assistance of counsel. (N.D.1985) enmayer, Strickland, (quoting 466 U.S. at V 2052).

S.Ct. The district judgment court Here, points Schweitzer to a affirmed. number of trial alleged his counsel’s defi-

ciencies. Schweitzer asserts that before WALLE, [¶ 31] GERALD W. VANDE trial, complained his counsel of his work- C.J., CROTHERS, and DANIEL J. continuances, requested load and delaying MARING, MARY MUEHLEN resulting lengthy his trial and in a pre-trial KAPSNER, JJ„ CAROL RONNING record, however, incarceration. From the concur.

it appears actually Schweitzer was arrest- bond,

ed for another offense while out on being

which resulted his bond revoked.

Thus, despite any delay leading up to the

trial on present charges, Schweitzer’s incarceration

continued was due to his own actions, than any rather the result of al- 2007 ND 112 leged ineffective assistance of counsel. ROTH, Todd Appellant, Petitioner and Schweitzer points [IT27] also his trial object counsel’s failure to to cer Dakota, opinion Respondent tain STATE of North hearsay testimony, in ad Appellee. dition timing to his counsel’s in making two judgment acquittal motions for dur No. 20060241. ing trial poll jury and failure to after Supreme Court of North Dakota. the verdict read. Schweitzer also as serts his erred giving counsel not July opening statement and failing to call wit nesses on his behalf. record, however, On this

[¶28]

Schweitzer has established that his

trial plainly counsel was defective.

Schweitzer’s claimed deficiencies of his tri-

n officers had cause to search home supporting Roth’s because the affi- davit contained substantial evidence of activity, tip drug including informant’s that Roth manufacturing methamphet- amine, prior searches of Roth’s home that Johnson, Nelson, Blumer & John- Joe A. discovery indicating resulted items ND, son, P.L.L.P., Fargo, petitioner drug trafficking, and Roth’s association appellant. people with other suspected drug use Feland, At- Assistant State’s Cynthia M. ¶¶ trafficking. 13-15, Id. at 18-20. Bismarck, ND, for torney, respondent and also held provision We that the no-knock appellee. cause, not supported by probable but the warrant was still valid because law WALLE, Chief VANDE Justice. functionally enforcement had excised the provision by A. Roth invalid no-knock appealed declining Todd from a ¶¶ 24, denying application use it. Id. at district court order his 28. argues

for relief. post-conviction Roth his 2005, In January [¶4] Roth filed an appellate trial and counsel inef- plainly application relief, for post-conviction rais- failing to challenge night- fective for the ing multiple legality issues related to the of the provision time warrant issued to of the search claiming and also that he search his home. We affirm. received ineffective assistance of counsel. The district court concluded Roth had al- I ready raised the same issues on direct 2002, August In late the [¶ 2] State appeal in I application Roth and denied his possession with charged Roth of metham- post-conviction Roth appealed, relief. phetamine, possession drug parapher- (Roth of II), and in Roth v. State ¶ nalia, 513, and manufacture of a controlled 713 N.W.2d this Court re- charged substance. Roth was after law the denying post-conviction versed order with enforcement searched his home and relief remanded the to district court. during early morning warrant the hours precluded We held that Roth was from August on 2002. Roth’s filed a raising counsel directly issues related to the issu- all suppress motion to evidence warrant, discovered ance and execution of the search search, arguing in the the warrant was but the court district should have by not supported con- considered the of his merits ineffective ¶¶ illegal provision. tained an no-knock 8,17. assistance counsel claim. Id. at district denied sup- court the motion to remand, 5] On district [¶ the court con- press. guilty Roth entered conditional sidered Roth’s claims of ineffective assis- plea charges, right to reserving the the by examining tance counsel the record. appeal the adverse determination the Roth had claimed his counsel was ineffec- suppression motion. ¶ major tive for two reasons. Id. at 9. repre- First, Roth’s counsel argued continued Roth his counsel failed to appeal sent him on raised same raise the issue of whether the searching issues regarding actually cause and the using officers entered the no- no-knock In provision. provision, Roth despite knock their claims that (Roth I), 23, 1, Second, ND they not. did Id. he contended his this Court affirmed. We concluded the counsel was for failing ineffective to chai- objective an fell below stan- representation of the provision lenge reasonableness, peti- hearing dard of suppression at the both warrant by counsel’s defi- prejudiced tioner was Roth claimed his Id. appeal. and on direct State, Matthews v. performance. cient on the defective based plainly counsel ¶ 10, ND 706 N.W.2d 74. support record, affidavit specifically the warrant, he did and therefore of the search prong, As to the first evidentiary hearing. Id. request strong pre overcome the petitioner must ¶ 12. representation fell sumption that counsel’s claim, the district to the first As pro range the wide of reasonable within raised counsel had that Roth’s court found State, 2005 Laib v. fessional assistance. enforcement en- law the issue of whether An attor ND N.W.2d in his provision no-knock using the tered measured consider ney’s performance is motion. suppression about reply brief norms. prevailing professional ing ineffec- Therefore, was not Roth’s counsel ¶ 13, Sambursky, to the second regard. As tive in assessing the reasonable N.W.2d 524. that counsel claim, court found the district courts must performance, ness of counsel’s validity of the challenged never had distorting limit the consciously attempt to the search warrant. provision of con hindsight. Id. Courts must effect not decide whether court did The district and decide all circumstances sider supported warrant was were errors so serious whether there cause, but rather concluded accorded the “counsel” defendant was not have been admissible would evidence Amendment. by the Sixth guaranteed discovery the inevitable any event under State, 192, ¶ 10, 705 v. 2005 ND Klose Roth failed to show Because doctrine. N.W.2d 809. night- from that the evidence obtained to meet the sec order [¶ 9] suppressed, would have been time search there must show prong, petitioner ond he had not court concluded the district that, but for probability is a reasonable counsel assistance of proven ineffective errors, the result unprofessional counsel’s application post-convic- and denied his been differ would have proceeding of the Roth renews appeal, relief. On this tion ¶ II, 106, 10, 713 2006 ND ent. Roth assistance of coun- claim of ineffective his prove must petitioner The 513. N.W.2d sel, that coun- solely ground on the relying representation only that counsel’s not legality of the challenge the sel failed to ineffective, specify how but must warrant. nighttime search and the incompetent counsel was where Laib, 2005 ND result. probable different II ¶ If it is easier 187, 10, 845. 705 N.W.2d The Sixth Amendment assistance of an ineffective dispose to guarantees Constitution the United States lack of ground on the claim counsel right to effective defendant the criminal that course should prejudice, sufficient State, Sambursky v. of counsel. assistance State, 217, 2005 ND Wright v. followed. 223, ¶ 13, 524. In 723 N.W.2d 2006 ND ¶ 242. claim prevail post-conviction on a order pre to file a Failure assistance, 10] petitioner [¶ of ineffective motion, itself, does not State, suppression trial heavy burden. Rummer bears a ¶ of counsel. assistance to ineffective 216, 10, equate 722 N.W.2d 528. 2006 ND ¶ 152, 11, State, 683 ND 2004 counsel’s Ernst petitioner prove must prove 891. In order to an ineffec- N.W.2d [¶ 11] The issue of ineffective assistance of question tive assistance claim based on counsel’s counsel is a mixed law and fact evidence, fully which is suppress failure to move to reviewable on Rummer, appeal. petitioner prejudice, must show actual N.W.2d Assistance of counsel merely possible prejudice. Id. at 12. In plainly defective when the record affirma Morrison, Kimmelman v. 477 U.S. tively shows of a ineffectiveness constitu 373-75, 2574, 91 106 S.Ct. L.Ed.2d 305 II, tional dimension. Roth (1986), Supreme the United States Court ¶ 12, 713 N.W.2d 513. set forth the which applies standard to a petitioner’s claim that counsel was ineffec- Ill failing tive for to raise a Fourth Amend- Roth contends his trial ap- ment issue. pellate plainly counsel was ineffective for Where defense counsel’s failure to liti- failing challenge validity of the gate a Fourth Amendment claim compe- nighttime provision of the search warrant. tently principal is the allegation of inef- In particular, Roth argues he would have

fectiveness, the defendant must also prevailed suppression on the motion if his prove that his Fourth Amendment claim counsel had raised the issue of whether the is meritorious and that there is a reason- nighttime warrant supported by prob- probability able that the verdict would Additionally, able cause. he claims the have been different absent the excluda- district court erroneously applied the inev- ble evidence order to demonstrate discovery itable doctrine in this case. prejudice. actual Because argues Roth that his defective, plainly counsel was 2574; Id. at we do not 106 S.Ct. see also have the benefit of a Locke, post-conviction hear- Williams v. 403 F.3d (8th ing transcript or an explanation from Cir.2005); coun- Newland, Bailey v. Rather, sel. the merit of (9th Roth’s claim Cir.2001) (“[Pjetition F.3d must be solely determined from the facts er prevailed must show that he would have record, in the particularly the affidavit in motion, on suppression and that there support of the search warrant. The rec- is a probability reasonable the suc ord reveals the following facts. cessful motion would have affected the out come.”). Counsel is not ineffective for fail 20, August [¶ On Deputy ing to argument meritless, make an that is Dion Bitz of the Metro Area Narcotics either at trial or appeal. Aydelotte on v. Task applied Force a for warrant to search State, 04-822, No. CR 2005 WL 3008619 Roth’s residence at 704 Concord Drive in (Ark. Bismarck, 2005 Ark. at *5 LEXIS Nov. North Deputy Dakota. Bitz’s 2005); in support see also Smith v. affidavit Murray, 477 U.S. of the search warrant stated, 535-36, 106 in relevant part: S.Ct. 91 L.Ed.2d 434 (1986) (internal omitted) (consid quotation 4. Todd Roth suspected is of manu- ering appellate whether counsel was facturing methamphetamine inef at 704 Con- fective stating “process and cord Drive.

winnowing arguments out weaker ap on 5. The Task Force has received in- peal focusing likely and on those more formation from various sources regard- prevail, being far from evidence of incom ing Todd Roth manufacturing controlled petence, is the hallmark of appel effective May, substances. I observed advocacy”). late Perry Carla Haff s and Anderson’s vehi- methamphetamine-like Cl described Roth residence.... the Todd cles at substance, in as a white some in Mandan substance resides Perry Anderson form, in form. powder at Paul Ereth’s rock some frequently observed Force Mandan. The Task in residence infor- provided 14. The Cl has also Paul regarding intelligence has received independent- that was past mation in the narcotics. trafficking in Ereth in success- ly corroborated and resulted prosecutions. and Federal The

ful State information which re- provided Cl has 1, 2002,1 interviewed August 9. On of a narcotics cently led to arrest that Todd who stated confidential source pro- has trafficker. Information Cl in the Roth cooks has drug vided on other local traffickers weekly residence twice of his basement corroborated. independently been at the Todd source had been and the requesting 15. I am to be allowed to cooking while he was Roth residence any time of the execute the warrant methamphetamine. necessary day night. or This is because has been conducted Surveillance gathered the information and surveil- Drive. Concord on the residence that Todd lance conducted indicates 7, 2002, began at surveillance August On methamphetamine at Roth manufactures [LJights were on the base- p.m. 11:30 night. checks License ment of the residence. in front parked information contained run on the vehicles Based on the

were regis- affidavit, magistrate vehicle was is- Deputy of the home. One Bitz’s Anderson, Perry the other warrant to search Roth’s tered to sued a no-knock New Manufacturing, “anytime day night” within registered to Rollin residence a.m., the Shortly 1:00 days. before the next ten Salem. Perry lights were shut off basement 28, 2002, August law enforce- 15] On An un- the residence.

Anderson left home and entered Roth’s ment officers with left the residence person known from about the search warrant executed mailbox, Anderson, walked to the Perry Deputy Bitz testi- a.m. until 2:40 a.m. 12:37 Perry area as looked around he waited to conduct fied that then returned away drove Anderson at home. until he knew Roth was to the residence. pres- their knocked and announced officers

ence, breaching and then entered with the door. nobody opened device when August Confiden- 13.On residence, entered the the officers (Cl), When who was the confi- tial Informant and two other men they observed Roth spoke with source that officers dential at them. As a nearby looking standing Todd Roth August witnessed on search, in the result of items discovered at his resi- cooking of meth- charged possession with Roth when the Cl dence. The Cl stated drug para- possession of residence, amphetamine, there was a walked in the a manufacture of controlled phernalia, and hanging in the residence. cloud of smoke substance. using stated that Todd Roth The Cl cook due to anhydrous method to

the A while the Cl present the ammonia smell the district court note that We the The Cl observed was at residence. probable whether there was methamphet- did not decide scraping Roth a Todd Rather, the nighttime for a search. plate. a cause substance from amine-like 890 immediately shown, the inev- applied court sonable cause execu-

district authorizes its that discovery doctrine to hold tion at times other daytime.” itable than We have been admissible even evidence would have construed the term “reasonable probable Before synonymous if there was no cause. cause” as “probable with reaching secondary a issue like inevitable the purpose night- cause” for of issuing a ¶ II, discovery, 106, 14, the district should have court time warrant. Roth 2006 ND Herrick, probable decided whether there was cause 513 (citing 713 N.W.2d State v. ¶ 336). justify nighttime a warrant. Because 1997 ND 567 N.W.2d Therefore, probable may disposi- issue of be cause under N.D.R.Crim.P. 41(c)(1)(E), appeal, on the district court should magistrate tive a may issue a ruling make on that issue. nighttime only warrant if there is a probable of showing justify cause to a ease, this Ultimately, [¶ 17] ¶ II, 14; search. State Roth district court did held Roth not ¶ Fields, 15, 9, v. 2005 ND N.W.2d receive ineffective assistance of counsel be 41(c) he would not on prevailed cause have his purpose 20] The of Rule [¶ suppression motion. will disturb a protect subjected We is to citizens being from merely correct result because district to the trauma of unwarranted reason, ¶ assigned Fields, if 15, 9, court incorrect searches. 2005 ND result is the same under the correct law recognized N.W.2d 233. Courts long have State, reasoning. Klose v. 2005 ND greater searches constitute ¶ 192, 21, Therefore, 705 N.W.2d 809. we on privacy daytime intrusions than do ¶ II, will consider 106, 14, whether Roth would have Roth searches. 2006 ND prevailed if he had issue raised the of lack N.W.2d 513. cause for search. However, [¶ despite 21] 41(c),

[1Í18] Whether limitations Rule exists to issue a search warrant permissible cause is a searches are in certain circum fully question of law which is reviewable stances. This Court proba has held that Utvick, appeal. on State ND ble for a nighttime search exists ¶ 7, generally 675 N.W.2d 387. We defer upon showing sought that the evidence magistrate’s proba to a determination of may quickly easily disposed be of if if ble cause there was a substantial basis the warrant is not promptly executed. ¶¶ conclusion, Fields, for the or margin 10-11, doubtful 691 N.W.2d (citations omitted). al cases should be in favor of resolved An officer must magistrate’s determination. Id. set forth some facts for believing the evi dence be destroyed will other than its It is well established mere allega existence. Id. at 10. Mere only search warrants upon issued presence tions about the drugs do not See, showing e.g., cause. drugs lead to the inference that are Ebel, easily Furthermore, disposable. Id. However, applicant if the warrant mere fact that a person keeps odd hours search, nighttime seeks authorization for a support does not a finding of probable showing an additional required. Rule nighttime cause for a search. Id. at 12. 41(c)(1)(E), N.D.R.Crim.P., provides, “The may warrant daytime, be served in the [¶ 22] We recog have also the issuing authority, unless appropri nized “there may variety that be a provision warrant, ate in the and for rea- justify circumstances that the authoriza-

891 gathered Id. at 10 search when officers evidence of of a search.” tion omitted). (citation cause” prior nighttime drug through The “reasonable two sales surveillance); State, in N.D.R.Crim.P. Aydelotte standard contained v. No. CR 41(c)(1)(E) necessity the for upon 04-822, 3008619, focuses 2005 WL 2005 Ark. LEX than (Ark. 2005) the at a time other executing warrant 706, 10, (up IS at *8-9 Nov. Note, Explanatory daytime. See holding nighttime search because officer 41; LaFave, 2 R. Wayne N.D.R.Crim.P. drug had that manufacturing information 4.7(b), § at 650-51 n. Search and Seizure overnight, would be done and there was a (4th ed.2004) correspond (analyzing 24 danger drugs compo that the and other 41); provision in Fed.R.Crim.P. see ing might nents moved once process be Camperson, v. 437 also Commonwealth Luckhardt, complete); was v. State No. (1994) (hold 65, 355, Pa.Super. 650 A.2d 70 C3-02-2026, 1153024, 2004 WL 2004 Minn. that cause” for a ing “reasonable 573, App. (Minn.Ct.App. LEXIS at *11-12 rules of criminal search under state 2004) 25, May (holding nighttime search showing a that procedure “requires justified was when officers had a limited morning”). cannot wait until Ne window of time to catch the defendant with cessity nighttime search exists for a pre-recorded money after a controlled possibility there is a reasonable “where State, drug purchase); Campbell v. 651 fruits, instrumentalities or evi 696, (Okla.Crim.App.1982) (up P.2d 698 sought would not be ex dence crime holding nighttime search when officer had premises the searched pected to be begin information that defendants would day might or removed or during the drug manufacturing midnight, because delayed.” dissipated if the search is it was reasonable to conclude that Richardson, 1, 886, v. 80 Hawai'i 904 P.2d drugs would have been moved or concealed (1995) Brock, 294 (quoting 890 State v. Or. manufacture); after their Commonwealth 543, (1982)). 15, 653 P.2d 546 284, v. Prokopchak, Pa.Super. 279 420 A.2d upheld nighttime Courts have (1980) 1335, (finding 1339-40 reasonable particularized searches when there was ev a nighttime cause for search when officer sales, drug trafficking, idence of or manu carry had that defendant information night facture which occurred late at ing large marijuana a amount of and a co- early morning hours. See United conspirator coming night or the Randle, 676, Fed.Appx. v. States share). day next to take his But see Fouse Cir.2006) (10th (upholding State, 146, 13, 337 Ark. 989 S.W.2d support search when the affidavit in of the (1999) justifica (concluding there was no information that the de warrant contained tion for a search because only drugs p.m.); fendant sold after 10 strong emanating odor of ether from Tucker, United States v. 313 F.3d p.m. residence at 9 was not reasonable (10th Cir.2002) (concluding concluding methamphet basis search at 5:10 a.m. was reasonable because or sold in the amine was to be removed information that the defen officers had future). immediate process dants have been However, courts have found no meth, manufacturing and there was a risk necessity for a search when of destruction of evidence as well as the effectively have been exe warrant could injury and danger significant personal Eichorn, during daytime cuted hours. See State property damage); State v. Richardson, 80 Hawai'i 904 P.2d (Ct.App. Ariz. 694 P.2d 1227-28 1984) nighttime that a (finding good (holding cause for a 891-92 reasonably necessary provided

search was not when dence and detailed information throughout drug transactions occurred about the manner in which Roth cooked early hours); in night, evening methamphetamine. but also specifi- The informant Fitch, 108, cally 255 Neb. stated that Roth methamphet- cooked 342, (finding no basis weekly for a amine twice in the basement of his nighttime search when the affidavit stated residence. Deputy Bitz vouched for the only drug that known frequent- reliability users were informant’s veracity in his ing I, a residence and there was some evi- supporting affidavit. See Roth ¶¶ drug activity 23, 8-15, of dence based on a trash 674 N.W.2d 495 (concluding search); Miller, 276, People report Misc.2d that the informant’s supported a cause). (N.Y.City finding 439 N.Y.S.2d Crim.Ct. After receiv- 1981) (concluding nighttime search in- ing report the informant’s that regu- Roth valid because larly surveillance established that manufactured in illegal gambling activity basement, continued into his law enforcement conducted hours)-. daytime surveillance on Roth’s residence. When began surveillance p.m., lights 11:30 Furthermore, courts-have held were on in the basement. One illegal searches were when parked vehicles registered outside was supporting affidavit contained boiler- Perry Anderson, suspected who was plate language eonclusory statements involvement drug with use and trafficking. rather than particularized facts. See Shortly a.m., before 1:00 the basement Luckhardt, 2004 WL 2004 Minn. lights off, were shut and Anderson left the App. (stating LEXIS at *9 that an residence. seeking officer warrant must present “something eonclusory more than [¶ 27] We conclude the informa boilerplate language”); Commonwealth v. tion Deputy contained in Bitz’s affidavit Johnson, Pa.Super. 462 A.2d provided justi sufficient cause to (1983) (holding 745-46 there was no rea- fy a nighttime search. The confidential sonable cause for a search when informant stated Roth manufactured the affidavit only contained information basement, methamphetamine in his that defendant had drugs premises on the surveillance established that there was ac and the affiant’s unsubstantiated belief tivity in during the basement the late that those substances would be sold nighttime hours. Surveillance also estab Rowe, next day); State v. 806 P.2d lished that at person least one other con (Utah 731, 733-34 Ct.App.1991), rev’d on nected with drug activity was in the resi (Utah 1992) other grounds, 850 P.2d 427 facts, dence at the time. These taken (finding no valid basis a nighttime together, indicate that likely Roth was only when the affidavit averred that manufacturing methamphetamine in his the suspect storing home, drugs his nighttime. Therefore, home at in order along pre-printed language with stating for law enforcement to catch Roth property sought easily could be process manufacturing methamphet hidden). destroyed or amine, the search needed to be conducted case, Deputy

[¶26] this Bitz pre- daytime. rather than in the magistrate sented the particularized with If law enforcement searched Roth’s resi gathered information through a confiden- dence at a time when he was not manufac tial informant and surveillance. The turing, reasonably confi- it was probable that dential informant had been at Roth’s much resi- of the evidence of the manufacturing

893 including methamphetamine plies to a process, violation of N.D.R.Crim.P. 41(c)(1)(E). itself, been removed from the This Court sup- would have has held that pression the evidence as convinc- is the premises. appropriate remedy Nor is an 41(c). illegal not ing manufacturing when the actual is search under Rule 19-03.1-23.1, Fields, 15, process. in Section See State v. ND 691 N.D.C.C., provides penalty an increased N.W.2d 233. The Explanatory Note to distribution of a supports ap- for the manufacture or N.D.R.Crim.P. further this proach: controlled substance within one thousand school, possession

feet of a but not for with Rule 41 is an adaptation of Fed. Dennis, intent. See State designed R.Crim.P. and is to imple- ¶ reasons, 733 N.W.2d 241. For these I, provisions ment the of Article Section legitimate law enforcement officers have a 8, of the North Dakota Constitution and in catching suspect interest in the act of the Fourth Amendment to the United manufacturing drugs. Constitution, guarantee, States which right people “The of the to be in secure in The facts at issue this case houses, persons, their papers and effects However, question. create a close we re- against unreasonable searches and sei- marginal in favor solve doubtful cases violated; zures shall not be and no war- can- magistrate’s determination. We cause, rant shall upon probable issue but say magistrate finding in erred supported by affirmation, partic- oath or justify a nighttime cause ularly describing place to be partic- search when the affidavit contained persons things searched and the which, together, ularized facts when read implement be seized.” To this constitu- led to the reasonable conclusion that Roth tional protection, illegal search and manufacturing seizure will bar the use of such evidence night. prosecution. in a criminal suppres- The [¶ Because there was suffi 29] imposed sion sanction is order to dis- cient for a nighttime courage power by abuses of law enforce- search, prevailed Roth would not have if conducting ment officials in searches and his counsel had raised the issue either seizures. suppression or on appeal. motion direct 41(c) Thus, the provision governing Rule Roth has not that he actual shown suffered implicates warrants substantive prejudice because of counsel’s failure to rights, particularly right constitutional challenge nighttime provision of the to be free from unreasonable searches and Therefore, search warrant. we conclude seizures under the Fourth Amendment. heavy Roth met has not his burden ¶¶ Utvick, 27-28, State v. ND Cf. proving ineffective assistance of counsel. (reaching 675 N.W.2d 387 the same conclu regard governing sion with to the statute B Sakellson, warrants); no-knock Assuming, for purpose (N.D.1985) (quoting only, discussion that there was no California, Ker v. 374 U.S. 83 S.Ct. search, cause for a the evidence (1963)) (stating 10 L.Ed.2d 726 faith good would be admissible under the entering “the method of the home exception exclusionary to the rule. offend federal constitutional standards of question and therefore vitiate the threshold reasonableness search”). exclusionary ap- legality accompanying Be- whether federal rule of an 894 41(c)(1)(E) of Rule judicial

cause a violation her role and failed to act in a a violation of (3) tantamount the Fourth manner; neutral and detached when Amendment, exclusionary federal rule the warrant was based on an affidavit Utvick, at 27. applies. But see Hud in lacking “so indicia of cause Cf. — —, —, Michigan, son v. U.S. as to render official belief in its exis- —, 2168, 165 126 S.Ct. unreasonable”; (4) entirely tence (2006) (holding 56 that a violation L.Ed.2d when a reasonable law enforcement offi- Amendment of the Fourth knock-and-an rely cer could not a facially on deficient require rule does not exclusion of nounce warrant. search). ensuing found in the evidence Herrick, Leon, (citing 15 If exclusionary rule 3405). S.Ct. reviewing “[W]hen an offi applies implicating when a statute or rule warrant, cer’s reliance a upon we must rights substantive constitutional is violat determine whether the underlying docu ed, exclusionary and the source of the rule ments are devoid of factual support, not Amendment, is the Fourth then we must merely they whether the facts contain are application good also consider the of the legally sufficient.” United States v. in exception faith set forth United States (10th McKneely, 6 F.3d Cir. Leon, 468 U.S. 104 S.Ct. 3405 1993) (internal omitted). quotation (1984). Herrick, See State v. case, [¶ 33] Under the facts of this we ¶ 12, 847; 588 N.W.2d see also United conclude good exception faith would (8th Maholy, 1 F.3d States v. 721-23 apply because Deputy Bitz’s reliance on Cir.1993) (holding that the fruits of a the search warrant objectively was reason- nighttime search were admissible under able. There is no evidence that the issuing good exception, faith even if the search magistrate by was misled false information Amendment). Fourth violated the Under or failed in to act a neutral manner. The good exception faith to the federal warrant facially itself was not deficient. rule, exclusionary suppression is not the Deputy Bitz presented particularized facts remedy for an appropriate illegal search if in the supporting affidavit which gath- he reliance on officer’s the search warrant ered from a confidential informant and Utvick, objectively was reasonable. through surveillance. The information in- ¶36, 26, ND good 675 N.W.2d 387. The dicated that Roth was manufacturing faith inquiry upon focuses whether a rea residence, in his most sonably well-trained officer would have likely in nighttime. The affidavit was known illegal despite that the search was lacking not so indicia of magistrate’s authorization. State v. that Deputy Bitz’s belief its Beek, existence 53, ¶ 25, Van entirely was Therefore, However, unreasonable. an officer not always Deputy reasonably Bitz relied on the reasonably rely upon validity issu- of a ing magistrate’s by search warrant issued determination that magistrate. justified. warrant recognized specific Id. We have four situa good tions when the faith exception does IV

not apply because the officer’s reliance on objectively warrant is not reasonable: [¶ 34] We conclude Roth would not (1) prevailed have if his issuing magistrate when the counsel had raised the issue of lack intentionally misled false information a night- cause for affiant; or negligently given by the time search in suppression either motion magistrate when totally abandoned appeal. or on direct Because Roth did not “A prejudice probability probability as a result of coun- reasonable is a suffer actual issue, failure to raise this he did sufficient to undermine confidence in the sel’s of counsel. Washington, ineffective assistance outcome.” receive Strickland denying post- 668, 694, The district court’s order U.S. S.Ct. 80 L.Ed.2d (1984). affirmed. conviction relief is specify Roth must how where his counsel incompetent was and the SANDSTROM, DALE V. [¶ 35] probable different result. See Laib v. CROTHERS and CAROL DANIEL J. ¶ State, 187, 10, 2005 ND 705 N.W.2d 845. KAPSNER, JJ., concur. RONNING argues Roth [¶ 38] record shows MARING, Justice, dissenting. his counsel plainly was defective. “Assis- I respectfully I dissent. dis- 36] [¶ plainly tance of counsel is defective when agree majority with the the officer’s affirmatively the record shows ineffective- probable for a affidavit established cause ness of a constitutional dimension or the Therefore, warrant. I nighttime search points defendant to some evidence believe Roth’s counsel was ineffective for II, record to support the claim.” Roth failing probable to raise whether there was ¶ 106, 12, 2006 ND 713 N.W.2d 513. search warrant. I nighttime cause for below, For the reasons I state good exception do not believe the faith also objective Roth’s counsel fell below an stan- nighttime invalid search of saves the dard of reasonableness because he failed Roth’s residence. I would reverse the or- probable raise whether there was cause denying post-conviction der relief. for a nighttime the issuance of search war- I. Ineffective Assistance of Counsel rant. Had Roth’s counsel raised whether his was in argues Roth counsel [¶ 37] probable there was cause for a failing for to raise whether there effective warrant, search during evidence seized cause for a search of Roth’s residence Following warrant. Strickland v. Wash suppressed would have been because it ington, 466 U.S. 104 S.Ct. illegally obtained. evi- Without this (1984), applies L.Ed.2d 674 this Court dence, probability there is a reasonable two-part test to evaluate ineffective assis against that the of the proceeding outcome prove tance of counsel claims. To he re Roth have been favorable to him. would counsel, ceived ineffective assistance of Therefore, I opinion am of the Roth re- proving Roth has the burden of his coun ceived ineffective assistance of counsel. objective representation sel’s fell below an Nighttime II. Search Warrant reasonableness, standard of and he was required Probable cause is for prejudiced by per his counsel’s deficient (“Roth ”), formance. Roth v. II the issuance of a search warrant. State See State Fields, 106, 10, 15, ¶ 5, To v. 713 N.W.2d 513. 691 N.W.2d element, 41(c)(1)(E), establish the first Roth must 233. Under Rule N.D.R.Crim.P., strong presumption overcome the his “warrant be served daytime, issuing conduct fell in the unless the authori counsel’s within the wide range professional ty, by appropriate provision of reasonable assis in the war rant, shown, element, au tance. See id. For the second reasonable cause than Roth must show there was a reasonable thorizes its execution times other added.) probability proceeding daytime.” (Emphasis of the have result We would have been different if not for his concluded reasonable cause and interchangeable. unprofessional counsel’s errors. See id. cause are (N.D. Knudson, Federal 499 N.W.2d case law cannot be relied on for 1993). analysis search warrant magistrate who issues a this Dakota, state. North under warrant must find a suf nighttime search 41(c)(1)(E), probable N.D.R.Crim.P. justi cause to showing ficient required any night- for the issuance of Fields, 2005 ND fy search. time search warrant. The United States Supreme Court “has never held that the has stated that Rule Our Court prohibits nighttime Fourth Amendment N.D.R.Crim.P., 41(c)(1)(E), is meant searches, despite disapproval voiced citizens “from be protect North Dakota’s occasionally by a in Justice dissent.” subjected to the trauma of unwarrant ing Rizzi, 669, United v. 434 States F.3d 675 nighttime long ed searches. Courts have (4th Cir.2006) (citing Gooding v. United recognized nighttime that searches consti States, 430, 462, 464, 416 U.S. 94 S.Ct. privacy than greater tute intrusions on do 1780, (Marshall, 40 L.Ed.2d 250 J. Fields, 15, daytime searches.” dissenting)). requires “good Federal law ¶ 9, Although may there 691 N.W.2d 233. 41(e), F.R.Crim.P., cause” under Rule for justify that variety be a of circumstances warrant; however, a nighttime search fed- search, nighttime the authorization of a we drug by eral governed cases are 21 U.S.C. probable have indicated cause exists for a 879, § special showing which has no for when nighttime search warrant there is a Therefore, nighttime search warrants. may showing sought-after evidence be federal case law on in- searches ¶ disposed quickly easily. and Id. at 10. volving drugs very is of little relevance to ¶ Fields, 10, In specifically at our Court analysis our unless we know that prior held: “To the extent our decisions search was considered under state law and justifying approved per-se a rule the issu that state has similar law to ours. cases, drug ance in warrants majority The cites state court they allegation are mere overruled.” The support cases to its conclusion that Bitz’s present that are at a controlled substances provided affidavit probable sufficient cause residence for the does not allow inference justify a nighttime search warrant. that are easily controlled substances However, assuming even that all of these Id.; Utvick, disposable. v. see also State require probable states night cause for a 36, ¶ 21, A 675 N.W.2d 387. warrant, time search I believe these cases affidavit, officer, police in an must set forth actually support a conclusion that there some facts for his belief the evidence will justify was not cause to a night ¶ Fields, destroyed. be 10. keep at time search warrant in this case. In these ing justify of odd not alone a hours does cases, particularized there were sup facts nighttime search. id. at See Our porting the conclusion that evidence would Court it in that made clear Fields we no use, sale, disposed by be of morning, or longer approve would a search removal property. from the See State v. any warrant issued on less cause Eichorn, 609, 1223, 143 Ariz. 694 P.2d than required a no-knock 1225-27 (Ct.App.1984) (holding there was warrant in drug cases. See id. 10. good cause for a search when majority points

[¶ 42] The to two fed specific prior affidavits listed two in Randle, cases, eral v. United States 196 drug stances of transactions between 11:00 (10th Cir.2006), Fed.Appx. 676 p.m. a.m., United and 1:00 and the warrant was (10th Tucker, States v. F.3d 1259 day issued); 313 Cir. executed the same it was 2002), Luckhardt, in analysis C3-02-2026, its of nighttime searches. State v. No. manufacturing methamphet- process LEXIS Minn.App. WL * 2004) volatile, amine, are May that the chemicals (Minn.Ct.App. *11-12 an affi- opinion, and hardware used to manufac- unpublished in an the items (holding, facts particularized may be removed sufficient ture davit stated search war- issuing methamphet- justify destroyed, explained that the affidavit rant because transported amine or sold. Id. just oc- transaction had drug controlled Supreme 149. The Arkansas Court held money pre-recorded curred affi- conclusory, to be these statements disposed of be- being quickly danger of support, in factual and the lacking davit going from coming and vehicles were supported by warrant not nighttime search State, 651 residence); Campbell cause. Id. (hold- (Okla.Crim.App.1982) P.2d Richardson, 80 Haw night- allowing judge’s discretion ing (1995), an infor 904 P.2d ai'i proper because warrant was time search an in police mant informed a officer that informa- particularized the affiant received crystal methamphetamine sold dividual manufacturing drugs would tion hours, which continued during specified midnight); Commonwealth begin A warrant was exe until 2:00 a.m. search 284, 420 A.2d Pa.Super. Prokopchak, day on the same it was p.m. cuted at 10:25 was a (holding there 1337-40 Richardson was found in the issued. Id. justify to a showing sufficient Id. at 887-88. residence and arrested. an informant told because search warrant 41(c), HRPP, to our Hawaii’s Rule similar often would re- the defendant the affiant 41(c)(1)(E), N.D.R.Crim.P., “requires Rule the same marijuana and turn home with to them presented to have facts judges marijuana remove the party would third the existence of circum that demonstrate following night). the same or justify a stances that would a majority cites number The [¶ 44] a warrant.” issuing before such search was have held there cases in which courts Richardson, affida 904 P.2d at 890. The a cause to issue no until at drug place sales took vit indicated are more These cases search warrant. early evening. and also Id. least 2:00 a.m. and state analogous to this case factually held Supreme Court at 891. The Hawaii State, 337 rule. In Fouse v. the better sup that officer’s affidavit police that the (1999), Ark. 989 S.W.2d not demon warrant did ported the search a Court reversed Supreme the Arkansas reasonably strate suppress motion to on denial of a that necessary. The court concluded Id. that there was ground to ex “nothing in the record there was search warrant. to issue a could not either have plain why the search police two officers affidavit stated hours early evening in the place taken and confirmed property went to Fouse’s day.” ..., the next have waited until or a chemical odor. Id. reported smell of Id. Thereafter, trooper and a a state at 146. a confi- Bitz’s affidavit contained property and went to Fouse’s detective that Roth statement dential informant’s coming from Fouse’s resi- ether smelled in his basement methamphetamine cooked allegedly asso- Id. Fouse had been dence. affidavit also referred Bitz’s twice week. methamphet- ciated in the distribution base- when the night to of surveillance delivery one convicted of amine and had been were on of Roth’s residence lights ment The affida- substance. Id. of a controlled 1:00 a.m. Based p.m. to before knew from 11:30 further stated he vit of the detective night on the one surveillance and the A Numerous reasons. We were short- information, confidential informant’s Bitz handed at the task force. There that he be requested allowed to execute were other times where I drove at any day the search warrant time of the dark, the residence it quiet, and was night. Bitz stated in his affidavit: “I on, lights no where I did if not know requesting am allowed to execute the home, he was or not. So I was any day warrant at time of the or night. waiting for the time until he would necessary This is because the information be home. gathered and surveillance conducted indi- The affidavit stated that the confidential cates that Todd Roth manufactures meth- informant last cooking saw Roth metham- amphetamine night.” However, this is phetamine August Yet, on Bitz conclusory statement not supported by eight days waited to execute the search any particularized evidence of nighttime warrant. delay This indicates Bitz did not drug manufacturing. The fact that any have concern that the sought-after lights basement were p.m. on from 11:30 evidence, including 1:00 support before a.m. does not laboratory, in Roth’s residence going Roth manufactured methamphetamine at to be disposed quickly and easily, or he Bitz night. testified at the preliminary would have executed the search warrant hearing that he knew Roth had another much sooner. This rather residing individual in the indicates an basement bed- ongoing methamphetamine room of the residence. laboratory and there was not cause for a The affidavit fails to set forth nighttime search warrant. any facts that the confidential informant methamphetamine being saw manufac- suspected [¶ 49] Roth was of manufac- tured at night; the confidential informant turing methamphetamine. majority The only indicated it was manufactured twice appears to use this as the fact sup- that week in the basement. if Even we assume ports the nighttime search warrant. The conclusory Bitz’s statement that metham- however, crime of manufacturing, does not phetamine was manufactured at night is require that suspect be caught supported factually, Bitz set forth no facts See N.D.C.C. 19-03.1-23(1). act. § Un- indicating methamphetamine or the 19-03.1-23(1), § der N.D.C.C. “it is unlaw- hardware and chemicals used to manufac- ful any person willfully to ... manufac- ture the methamphetamine at Roth’s resi- ture, deliver, possess or with intent to destroyed, removed, dence would be or deliver, manufacture or a controlled sub- by morning. hidden ” stance .... “Willfully” encompasses three Bitz at preliminary [¶ 48] testified culpability different “intentionally, levels: hearing that the search warrant for Roth’s knowingly, recklessly.” or N.D.C.C. August residence was issued on 12.1-02-02(l)(e). § § Under N.D.C.C. 19- August but was not executed until 03.1-01(16): means, “manufacture” in rele- 2002: vant part: Q your you And warrant was issued to production, preparation, [T]he propa- 20th; August on is that correct? gation, compounding, conversion, pro- or A Yes. cessing substance, of a controlled either Q you And didn’t search until the 28th? directly indirectly by or extraction from A That’s correct. substances of natural origin, indepen- or Q Any reason for delay? dently by synthesis, means of chemical extraction and And then also the affidavit failed to combination of or any provide any drug and includes evidence that the or synthesis chemical the sub- repackaging of or packaging drug paraphernalia or cookware or re- relabeling of its labeling or might quickly stance or lated documents be dis- container. posed of without a no-knock warrant. of a Finding evidence court, itself, The trial at the tele- of the laboratory proof would suffice as suppression hearing, found that phonic under the statutes. crime in the there were no facts affidavit to a mere be- Bitz’s affidavit states support drugs, drug parapherna- that the night, at lief that Roth manufactures .with- lia, quickly disposed or cookware would be facts, and is not suffi- any supporting out of, which was the basis for the justify nighttime search warrant. cient to provision The in the search provision. any informa- does not include The affidavit authorizing warrant night, that Roth manufactures tion stated: deliveries, that he dis- he makes COMMANDED, search, ARE YOU chemicals, removes, of, all or hides poses ..., days serving this within ten hardware, after each paraphernalia anytime making warrant and this search manufactures, quantity or that the time he day night being or satisfied manufactur- drugs premises on the after property sought present probably destroyed. easily disposed of or ing can be if destroyed will be moved or Particularized facts that the evidence to be there, it.... property is found to seize danger of imminent removal or seized is added.) (Emphasis destruction, only can that the warrant nighttime, or that a safely executed inventory that was returned justified prevent nighttime search is search, and Bitz’s and Detec- following the person of a to be seized escape or removal Lynk’s testimony preliminary at the tive provided must be in the affidavit. See majority of the hearing, indicate LaFave, Wayne R. Search Seizure that would be used to manufacture items (4th ed.2004); 4.7(b), § n. see at 651 25 found, not in the methamphetamine were Knudson, at 875 also State v. basement, in the kitchen of Roth’s but established (requiring probable cause be residence, including roasting an aluminum showing sought that the evidence “upon solvent, pill con- pan, plastic bottle with of.”). easily quickly disposed and tainers, bottle, paper, eye Ph muriatic acid 24, 2003, telephon- At the March [¶ 51] residue, seventy dropper, pie plate with regarding suppression ic the deci- hearing of twenty-one pseu- boxes packs, blister sion, trial the court stated: of lithium batter- doephedrine, five boxes is provision far as the no-knock

As ies, filters paper and towels and coffee you I think both of realize concerned them. do not know with residue on We to sup- that cause did not exist at the from this record the circumstances of the no-knock war- port the issuance entry, the such as whether Roth time of residence. rant to search the defendant’s manufacturing in of meth- process provide not evidence The affidavit did lights or whether there were amphetamine knocking announcing and would that All know is that in we on the basement. officers in placed executing have home and there Bitz saw that Roth was danger. Roth residence was “traffic” at the

night. in any find Bitz’s a per I cannot facts N.W.2d denounced se [¶ 54] rule for made it necessary affidavit that enter search in drug warrants cases. in night Roth’s residence middle of ¶ 27, majority, The at makes the the morning. rather than in and factually unsupported unfounded as- (“Roth ”), I v. Roth that “in sumption order law enforce- ¶¶ 21-24, our ND N.W.2d process ment to catch Roth in the of manu- analyzed proba- whether there was Court facturing methamphetamine” the search support ble the no-knock search cause to night. must be conducted at The facts of obtained to warrant Bitz enter Roth’s resi- case very assumption. this belie that concluded affidavit dence. We Bitz’s nothing is suggest There the record to any “failed to evidence that knock- provide “in process” Roth was of manufactur- announcing may ing placed and have night ing the the search warrant was exe- danger” officers or others and Bitz merely cuted. testified he waited to exigent affidavit “failed set forth cir- serve the warrant until he knew Roth was supporting cumstances issuance the no- and there home were officers available to provision knock of the search warrant.” him. majority assist The the items used Therefore, Id. at 24. was no “[t]here to manufacture were found in the dish- magistrate’s substantial basis for the con- or the garbage washer in the kitchen of clusion that cause existed for the the residence. Roth charged with no-knock authorization.” A no-knoek Id. manufacturing methamphetamine and con- validly if search warrant issued there ditionally pled guilty to the offense. The showing that sought- has been a either the majority speculates also wrongly Roth easily after can be quickly evidence night only manufactured at night, at of, disposed or if there is a threat of and that warrant could not be served Utvick, physical ND violence. during day. majority, ¶27, ¶ 15, By 387. concluding N.W.2d “If concludes: law enforcement searched there was not substantial basis Roth’s residence at time when he was there was cause for a no-knock manufacturing, it was reasonably warrant, our Court con- implicitly probable that much the evidence sought-after cluded the was not evidence manufacturing process, including the disposed of, easily quickly which would methamphetamine itself, would have been exigency have been an a no- supporting removed the premises.” (Emphasis from I, knock search warrant. Roth added.) This is a per statement of a se this, Despite majority says [¶ 56] the methamphetamine nighttime rule for man- provided probable Granted, Bitz’s affidavit sufficient ufacture. facts that establish the justify nighttime cause a cookware, to probability chemicals, search. The that the majority to be appears propounding per drug paraphernalia and other used to man- nighttime se anytime rule for a search ufacture methamphetamine will be de- allegation manufacturing removed, there is an stroyed, by or hidden morning In methamphetamine. following Richards Wis- each manufacture can create consin, 385, 394-95, probable search, U.S. S.Ct. cause nighttime for a but (1997), 137 L.Ed.2d 615 the in United none exist this possibil- ease. The mere Supreme per States Court ity suspicion denounced se or exigencies these will rule for search in drug no-knock warrants happen enough particularized is not for the and, Richards, following cases the logic of facts needed for a search war- Fields, Court, our law, in 2005 ND 691 rant our requires proba- under which Rather, applied or a the test to be under Leon suspicion and not reasonable ble cause objective standard of what reason- is hunch. ably police well-trained officers would be- cooks Merely alleging someone probable lieve is cause for a not, in night does Fouse, search.” 989 S.W.2d at 149. itself, search support and of There are four in the situations which something more must be warrant. There good-faith exception apply: does not the issuance of supporting in affidavit the (1) rule, believe, I per issuing magistrate Such a se when the was the warrant. precedent and to our contrary by intentionally to our misled false information (2) greater long-held affiant; belief this negligently given by Court’s by a privacy must be offset intrusion of totally magistrate when the abandoned need. greater showing of judicial in a her role and failed to act (3) manner; neutral and detached when opinion I am of the that under [¶ 59] warrant was based on an affidavit affidavit, in Bitz’s there alleged the facts lacking in indicia of “so no cause for a as to render official belief in its exis- no just like there was search warrant unreasonable”; entirely tence a no-knock search war- cause for when a reasonable law enforcement offi- rant. rely facially cer could not on a deficient Exclusionary III. Rule warrant. Amendment to the “The Fourth [¶ 60] Utvick, ¶ 26, 2004 ND 675 N.W.2d 387. Constitution, applicable United States police by If no misconduct to deter there is the Fourteenth Amend- through the states evidence, good-faith ex suppressing I, ment, § of the North and Article ception suppression of the evi applies individuals protect Dakota Constitution remedy. appropriate is not the Id. dence and seizures.” from unreasonable searches Oxen, 8, 717 that a opinion I am of the rea- in illegally Evidence seized N.W.2d 593. not sonable law enforcement officer could Amend- violation of an individual’s Fourth be- rely on this search warrant suppressed under the rights ment must be cause, any proba- lacking support facts to exclusionary rule. Id. deficient, cause, facially ble it was therefore, good-faith exception does notes, majority our Court As analysis persuaded not I am apply. suppression appropri- held that is the has Supreme Court in State v. of the Nebraska remedy illegal nighttime ate for an Fitch, 255 Neb. 41(c). Fields, under N.D.R.Crim.P. See (1998), concluding good-faith ¶15, 14, How- 691 N.W.2d 233. apply does not this case. exception ever, good-faith exception “[u]nder Fitch, excep- good-faith court held the rule, exclusionary suppression federal There, a apply. Id. at 349. tion did remedy police if the appropriate is not the prepared an affidavit police investigator objec- reliance on the search warrant of Fitch’s residence. for a search warrant Utvick, 36, tively reasonable.” affidavit stated that the Id. at 345. The 26, (citing States 675 N.W.2d 387 United just and reasonable Leon, investigator had 897, 104 S.Ct. 468 U.S. (1984)). that a controlled sub- grounds to believe under L.Ed.2d 677 “The test stance, drug paraphernalia, and records police not whether officers Leon is pertaining possession and distribution subjectively executing the search warrant at resi- substance were they complying with law. the controlled believed were investigator, The in his affida- port obtaining dence. Id. the search warrant vit, known drug stated he observed offend- stated facts sufficient justify night- Marijuana leaves, ers at the residence. Id. search, officer(s) time not whether the stems, seeds, marijuana roach were good had a faith belief that bags in that came from the found trash cause existed for the issuance of the residence. Id. The search warrant was search warrant. p.m., days executed at 10:00 seven after a Fitch, 582 at N.W.2d 349. The court also search warrant was issued. Id. at 346. pointed out that test for “[t]he reasonable In analyzing good whether the reliance on a objec- search warrant is an faith exception applied night- to the invalid tive standard of reasonableness which re- search, Supreme time the Nebraska Court quires officers to have reasonable knowl- looked to a first decision the Arkansas edge of what the law prohibits.” Id. at Supreme guidance. Court 348; Leon, see also 468 U.S. at n. State, supra, In Hall v. the Arkansas 104 S.Ct. 3405. Court, Supreme noting the use of an standard,

objective reasoned that Court, The Supreme Arkansas good-faith exception applicable was not Fouse, S.W.2d concluded that a reasonably because a well-trained officer nighttime search warrant sup- was not would know that a search ported by probable cause and that stating made an underlying without good-faith exception did apply. The need for a search in the sup- presented officer an alleged affidavit that porting illegal despite affidavit is reports by law enforcement of a chemical issuing magistrate’s authorization. coming residence, odor from Fouse’s Fitch, Next, the court Fouse had been allegedly associated in the Rodriguez Superior looked to Court distribution of methamphetamine with in- (People), 199 Cal.App.3d 245 Cal. dividuals who had been convicted of dis- (1988). Rptr. Rodriguez, tributing substances, controlled that Fouse purposes [T]he court held that for of the had been delivery convicted 1987 of of a officer, good exception, faith who was substance, controlled and that the officer the affiant in the affidavit submitted to knowledge had of the warrant, secure the search could not cooking process. Id. at 149. objectively rely validity on the of a a.m., warrant was executed at 12:20 nighttime endorsement in a search war- and the officers found evidence of an active rant when he knew or should have methamphetamine laboratory, drug para- known that no facts were set forth in the phernalia, equipment, communication affidavit to show that service methamphetamine on person, Fouse’s was necessary and when he knew that a firearm. Id. at 147. The court held that drug operation expected he to ex- the nighttime search warrant unsup- pose ongoing. ported by sufficient facts to prob- establish Id. at 348-49. able cause for a search. Id. at Supreme

[¶ 64] The Nebraska Court 149. The court emphasized: “Our concern noted that underlying standard today is for integrity of our Rules.” application good-faith exception of the to a Id. pointed The court out that what nighttime search is: required for a search was clear officer(s) good

[W]hether the had a faith from its Rules of Criminal Procedure and belief that sup- the affidavit submitted in multiple “the decisions of requir- this court addition, In conclusory the search warrant merely [¶ 68] state- than ing more relying states it is on the affidavit of Bitz ments.” Id. for cause and contained the fol- Bitz, consulting with other after [¶ 66] lowing provision: ARE “YOU COM- receiving no- despite and law enforcement search, serving ... this war- MANDED to authorization, and an- knocked knock anytime making day rant and this search executing the before presence nounced his property that the night being or satisfied at Roth’s residence. See warrant search sought present probably or will be re- I, 495. ND 674 N.W.2d Roth destroyed or ...” moved the officers execut- “The trial court found magis- has held that a Our Court [¶ 69] realized the no- the search warrant ing trate must authorize a invalid and therefore provision knock appropriate provision in a warrant presence.” their and announced knocked Berger, search warrant. State v. may A warrant be Id. at no-knock (N.D.1979). Berger, In N.W.2d that either showing there is a issued when very warrant form used in we stated disposed be sought-after evidence ideal,” this case was “not but was suffi- is a threat easily quickly or if there cient. Id. at 539. We noted that Utvick, physical violence. language judge indicated that the was sat- ¶ 15, Implicit in Bitz’s N.W.2d 387. property sought that would isfied objectively that he knew that he actions is destroyed or if the probably be removed sought-after neither that had shown properly warrant was not served. Id. easily quickly dis- evidence could be Here, Bitz knew his affidavit did [¶ 70] or that there was a threat of posed of provide any supported that not facts id. physical violence. See sought probably would be re- property destroyed. By deductive rea- moved or N.D.R.Crim.P., 41(c)(1)(E), Rule soning, clear Bitz knew an un- it becomes requires cause be shown for a search was derlying need search warrant. See State therefore, affidavit lacking, and knew his Knudson, (holding at 874 499 N.W.2d despite magistrate’s insufficient 19-03.1-32(2) § we will read into N.D.C.C. Bitz relied on what he authorization. drug requirement facially warrant. knew to be a deficient searches). related Our Court’s Therefore, exception does good-faith again that decisions have held time and ap- remains the apply suppression conclusory more than statements and sus remedy. propriate provi are needed for a picions IV. Conclusion See, Fields, e.g., warrant. sion a search conclusion, I reverse would ¶ 10, 233; Knud 691 N.W.2d post- the motion for denying the order Schmeets, son, 875; 499 N.W.2d at not re- relief because Roth did conviction (N.D.1979). 401, 409 A rea counsel under ceive effective assistance of knowledge would have sonable officer facts of this case. law. The our rules and well-established MARING, MARY MUEHLEN exception apply does not when a good-faith J. knowledge, “law enforcement officer had may properly charged with knowl provide the affidavit did not

edge” nighttime search.

probable cause for the Leon, 468 U.S. at 104 S.Ct. 3405.

See

Case Details

Case Name: Roth v. State

Court Name: North Dakota Supreme Court

Date Published: Jul 25, 2007

Citation: 735 N.W.2d 882

Docket Number: 20060241

Court Abbreviation: N.D.