concurring.
[¶ 20] I concur in the result reached by the majority, but respectfully disagree with their analysis.
[¶ 21] I wrote separately in State v. Schmalz because probable cause was not established and the search was sustainable, if at all, upon establishing the good-faith exception. 2008 ND 27, ¶ 31, 744 N.W.2d 734 (Crothers, J., concurring in the result). So too, I agree the search here only can be sustained on good faith. But the State did not raise that issue below. Majority opinion at ¶¶ 14-17.
[¶ 22] I disagree with the majority that application of Schmalz and State v. Thieling, 2000 ND 106, 611 N.W.2d 861, should lead us to different conclusions. Both cases involved trash containing household items that could have been evidence of criminal activity. Both cases involved limited facts about the trash, and had an unreliable nexus between the trash and the residence sought to be searched. Both cases involved information provided by third parties that furnished little or no useful evidence supporting probable cause. But in one case this Court found probable cause and in the other case it did not. I believe these different holdings based on similar facts will result in law enforcement and reviewing magistrates having understandable difficulty determining why the warrant was sustained in Schmalz and deficient in Thieling. The analysis in this case does nothing to dissipate that confusion, but instead perpetuates the error which I believe was made in Schmalz. I therefore cannot join the majority’s analysis in this case, but I do concur in the result they have reached.
[¶ 23] DANIEL J. CROTHERS, J.