concurring in part and dissenting in part.
[¶ 38] I respectfully dissent and would affirm the district court order granting Utvick’s motion to suppress. Although I agree with the majority that there was probable cause to obtain a search warrant for Utvick’s motel room and that there was no probable cause for a no-knock warrant, I disagree with the majority that the good-faith exception applies. Instead, I agree with the well-reasoned decision of District Court Judge Norman Backes that the good-faith exception does not apply to the facts of this case.
[¶ 39] The United States Constitution requires only reasonable suspicion to justify a no-knock warrant, but North Dakota requires that probable cause be established before a no-knock warrant can be granted. N.D.C.C. § 19-03.1-32(3); Richards v. Wisconsin, 520 U.S. 385, 394, 117 *400S.Ct. 1416, 137 L.Ed.2d 615 (1997). The majority opinion concludes that the search in the instant case was unreasonable because there was no probable cause under N.D.C.C. § 19-03.1-32(3) for the issuance of the no-knock warrant.
[¶ 40] Our Court, in State v. Van Beek, stated:
The federal good faith exception originated from the landmark case United States v. Leon, 468 U.S. 897, 923[,] [104 S.Ct. 3405, 82 L.Ed.2d 677] (1984). The good faith inquiry is “confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Id. [at 922-23] n. 23[,] [104 S.Ct. 3405]. An officer may not always reasonably rely on the validity of a search warrant issued by a magistrate, however, and Leon identified four exceptions when this is the case. Id. at 923[,] [104 S.Ct. 3405]. Under the third exception, which Van Beek argues applies here, the good faith exception will not apply 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.” Id.
1999 ND 53, ¶ 25, 591 N.W.2d 112. I am of the opinion that this case falls under the third exception to the good-faith exception; therefore, the good-faith exception cannot apply in this case.
[¶ 41] In Richards, decided in April 1997, the United States Supreme Court held that “[i]n order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” 520 U.S. at 394, 117 S.Ct. 1416. The United States Supreme Court made it clear that it is the duty of a court confronted with whether the facts justify dispensing with the knock-and-announce requirement of the Fourth Amendment to do so on a case-by-case evaluation. Id. A blanket exception to the knock-and-announce rule for drug cases based on the generalization that there was a threat of physical violence and that the evidence would likely be destroyed if notice was given, was soundly rejected by the United States Supreme Court. Id.; see State v. Herrick, 1997 ND 155, ¶ 21, 567 N.W.2d 336 (overruling our per-se rule in drug cases justifying the issuance of no-knock search warrants). We have stated:
Probable cause for a no-knock warrant, therefore, can no longer be established merely because of the presence of drugs in a suspect’s residence. [Herrick, at ¶ 21] (“[m]ere allegations that drugs are present” will no longer “result in the issuance of a no-knock warrant”).
Van Beek, 1999 ND 53, ¶ 15, 591 N.W.2d 112. Our Court has concluded that in order “[t]o pass constitutional muster, officers must have some particularized basis for their suspicion drugs will be disposed of or destroyed if their presence is announced.” Id. at ¶21 (footnote omitted); see also 2 Wayne R. LaFave, Search and Seizure § 4.8(d), 615 n. 86 (3d ed.1996) (citing cases requiring particularized facts relating to the defendant in order to justify a no-knock entry).
[¶ 42] In the instant case, the majority carefully reviews the facts presented to the magistrate for the no-knock warrant. The no-knock search warrant was for Utvick’s motel room, but the majority states, “[t]here is no indication Officer Hanson alleged the location of the drugs in the hotel room contributed to easy disposal.” Officer Hanson did not provide any information in his affidavit of the layout of the *401motel room or the location in the room of the drugs. The majority states that the “affidavit failed to present any allegations stating the drugs sought were of a type considered easily disposable. Merely alleging the presence of marijuana and methamphetamine does not allow one to infer the drugs were easily disposable.” The officer states in his affidavit he smelled marijuana coming from the door jam of Utvick’s room. There is no evidence that there was methamphetamine in the motel room. The majority opinion concludes, “[t]he magistrate was not presented with any information stating the drugs were of such a nature making them easily disposable or easily pitched aside. Therefore, the magistrate could not have relied on such information when making the probable cause determination.”
[¶ 43] However, in concluding that the good-faith exception applies, the majority states, “Officer Hanson did more than merely allege drugs were present to justify issuance of a no-knoek warranty” because he presented information “regarding Utvick’s prior flushing history.” (Citation omitted.) Officer Hanson’s affidavit states:
In addition your Affiant is aware that Ryan Utvick is usually accompanied by a group of people inside motel rooms and if Law Enforcement would have to knock and announce their presence, those people could pitch their illegal drugs aside or flush potential evidence down a sink or toilet. Your Affiant has seen this on other search warrants and did see this happen when the warrant was served at the Super 8 Motel on June 1st, 2002 where Ryan Utvick was listed on the room registration card.
The incident referred to in Officer Hanson’s affidavit involved a search warrant at a motel room where Utvick was found with five other people on June 1, 2002. Approximately seven grams of methamphetamine were seized, and Rory Kendall was charged with possession of methamphetamine. The affidavit does not state that Utvick possessed drugs, that he flushed drugs down a toilet, or that he poured drugs down a sink. The affidavit merely states that one month ago, Utvick was in a motel room that was searched and others attempted to destroy evidence. Even if this information suggests Utvick’s predisposition to destroy evidence, standing alone, it is not sufficient to obtain a no-knock warrant. In the instant case, we do not have any particularized facts or even an estimation of the quantity of the drugs, the location of the drugs, or the layout of the motel room.
[¶ 44] The search warrant issued by the magistrate indicates that there is probable cause to believe the property described is being concealed at the premises described, Utvick’s motel room, but the magistrate never addresses that there is probable cause for the no-knock entry other than to check “yes” to authorizing the search without knocking-and-announcing. “The basis of the good faith exception is that if an officer reasonably relies on a warrant in good faith, there is no police misconduct to deter.” State v. Dodson, 2003 ND 187, ¶ 20, 671 N.W.2d 825 (citing Leon, 468 U.S. at 916, 104 S.Ct. 3405). In the instant case, where there are no particularized facts indicating why evidence would be destroyed in this particular search if officers announced their presence and where there appears to be a rubber stamp for the no-knock warrant by the magistrate, the good-faith exception cannot apply. The shortcomings of the affidavit are of a magnitude that make the officer’s reliance “entirely unreasonable.” In Leon, the United States Supreme Court held that where a warrant is “based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its *402existence entirely unreasonable[,]’ ’ an officer cannot “manifest objective good faith in relying on [the] warrant.” Leon, at 923, 104 S.Ct. 3405 (citations omitted). The cumulative effect of the numerous deficiencies in this affidavit are sufficient to render Officer Hanson’s belief in the existence of probable cause for a no-knock warrant unreasonable.
[¶ 45] Probable cause, here, means that the facts and circumstances would warrant a person of reasonable caution to believe the evidence or contraband sought probably will be destroyed. Under this standard, I am of the opinion such an inference cannot be drawn without a factual basis and there is none in this case.
[¶ 46] Finally, I agree with Robert J. Driscol in Unannounced Police Entries and Destruction of Evidence After Wilson v. Arkansas, that in the context of destruction of evidence, “[a] requirement of announcement prior to entry neither provides a great barrier to effective searches nor affords criminals an extensive opportunity to destroy evidence, because the time that police are required to wait between announcement, refusal of admittance, and entry is usually minuscule.” 29 Colum. J.L. & Soc. Probs. 1, *29-30 (1995) (footnote omitted). Recently, in United States v. Banks, the United States Supreme Court held that when executing a warrant to search for cocaine, a wait of 15-to-20-seconds after knocking on the door with no response was sufficient to proceed with a forced entry. — U.S.-, 124 S.Ct. 521, 523, 157 L.Ed.2d 343 (2003). Given the limited opportunity for destruction of evidence that knock-and-announce warrants create, the possibility of destruction of evidence provides a weak basis for departure from the Fourth Amendment knock-and-announce requirement. There is, in my opinion, no justification for a broad construction of the good-faith exception for destruction of evidence.
[¶ 47] For these reasons, I respectfully dissent. I would affirm the trial court.
[¶ 48] Mary Muehlen Maring