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, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court applies a two-part test to evaluate ineffective assistance of counsel claims. To prove he received ineffective assistance of counsel, Roth has the burden of proving his counsel’s representation fell below an objective standard of reasonableness, and he was prejudiced by his counsel’s deficient performance. See Roth v. State (“Roth II ”), 2006 ND 106, ¶ 10, 713 N.W.2d 513. To establish the first element, Roth must overcome the strong presumption that his counsel’s conduct fell within the wide range of reasonable professional assistance. See id. For the second element, Roth must show there was a reasonable probability the result of the proceeding would have been different if not for his counsel’s unprofessional errors. See id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Roth must specify how and where his counsel was incompetent and the probable different result. See Laib v. State, 2005 ND 187, ¶ 10, 705 N.W.2d 845.
[¶ 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, 2006 ND 106, ¶ 12, 713 N.W.2d 513.
[¶ 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, 2005 ND 15, ¶ 5, 691 N.W.2d 233. Under Rule 41(c)(1)(E), N.D.R.Crim.P., a “warrant may be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime.” (Emphasis added.) We have concluded reasonable cause and probable cause are interchangeable. State v. *896Knudson, 499 N.W.2d 872, 875 (N.D.1993). The magistrate who issues a nighttime search warrant must find a sufficient showing of probable cause to justify the nighttime search. Fields, 2005 ND 15, ¶ 9, 691 N.W.2d 233.
[¶ 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, 2005 ND 15, ¶ 9, 691 N.W.2d 233. Although there may be a variety of circumstances that justify the authorization of a nighttime search, we have indicated probable cause exists for a nighttime search warrant when there is a showing the sought-after evidence may be disposed of quickly and easily. Id. at ¶ 10. In Fields, at ¶ 10, our Court specifically held: “To the extent our prior decisions approved a per-se rule justifying the issuance of nighttime warrants in drug cases, they are overruled.” The mere allegation that controlled substances are present at a residence does not allow for the inference that the controlled substances are easily disposable. Id.; see also State v. Utvick, 2004 ND 36, ¶ 21, 675 N.W.2d 387. A police officer, in an affidavit, must set forth some facts for his belief the evidence will be destroyed. Fields, at ¶ 10. The keeping of odd hours does not alone justify a nighttime search. See id. at ¶ 12. Our Court made it clear in Fields that we no longer would approve a nighttime search warrant issued on any less probable cause than is required for a no-knock search warrant in drug cases. See id. at ¶ 10.
[¶ 42] The majority points to two federal cases, United States v. Randle, 196 Fed.Appx. 676 (10th Cir.2006), and United States v. Tucker, 313 F.3d 1259 (10th Cir.2002), in its analysis of nighttime searches. Federal case law cannot be relied on for nighttime search warrant analysis in this state. In North Dakota, under N.D.R.Crim.P. 41(c)(1)(E), probable cause is required for the issuance of any nighttime search warrant. The United States Supreme Court “has never held that the Fourth Amendment prohibits nighttime searches, despite the disapproval voiced occasionally by a Justice in dissent.” United States v. Rizzi, 434 F.3d 669, 675 (4th Cir.2006) (citing Gooding v. United States, 416 U.S. 430, 462, 464, 94 S.Ct. 1780, 40 L.Ed.2d 250 (1974) (Marshall, J. dissenting)). Federal law requires “good cause” under Rule 41(e), F.R.Crim.P., for a nighttime search warrant; however, federal drug cases are governed by 21 U.S.C. § 879, which has no special showing for nighttime search warrants. Therefore, federal case law on nighttime searches involving drugs is of very little relevance to our analysis unless we know that the search was considered under state law and that state has similar law to ours.
[¶ 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, 143 Ariz. 609, 694 P.2d 1223, 1225-27 (Ct.App.1984) (holding there was good cause for a nighttime search when the affidavits listed two specific prior instances of drug transactions between 11:00 p.m. and 1:00 a.m., and the warrant was executed the same day it was issued); State v. Luckhardt, No. C3-02-2026, 2004 *897WL 1153024, 2004 Minn.App. LEXIS 573, * *11-12 (Minn.Ct.App. May 25, 2004) (holding, in an unpublished opinion, an affidavit stated sufficient particularized facts to justify issuing a nighttime search warrant because the affidavit explained that a controlled drug transaction had just occurred and pre-recorded money was in danger of being quickly disposed of because vehicles were coming and going from the residence); Campbell v. State, 651 P.2d 696, 698 (Okla.Crim.App.1982) (holding judge’s discretion in allowing a nighttime search warrant was proper because the affiant received particularized information that manufacturing of drugs would begin at midnight); Commonwealth v. Prokopchak, 279 Pa.Super. 284, 420 A.2d 1335, 1337-40 (1980) (holding there was a sufficient showing to justify a nighttime search warrant because an informant told the affiant the defendant often would return home with marijuana and the same third party would remove the marijuana the same or following night).
[¶ 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, 337 Ark. 13, 989 S.W.2d 146, 147, 149 (1999), the Arkansas Supreme Court reversed a denial of a motion to suppress on the ground that there was not probable cause to issue a nighttime search warrant. The affidavit stated that two police officers went to Fouse’s property and confirmed the reported smell of a chemical odor. Id. at 146. Thereafter, a state trooper and a detective went to Fouse’s property and smelled ether coming from Fouse’s residence. Id. Fouse had been allegedly associated in the distribution of methamphetamine and had been convicted of delivery of a controlled substance. Id. The affidavit of the detective further stated he knew the process of manufacturing methamphetamine, that the chemicals are volatile, that the items and hardware used to manufacture methamphetamine may be removed or destroyed, and that the methamphetamine may be transported or sold. Id. at 149. The Arkansas Supreme Court held these statements to be conclusory, the affidavit lacking in factual support, and the nighttime search warrant not supported by probable cause. Id.
[¶ 45] In State v. Richardson, 80 Hawai'i 1, 904 P.2d 886, 887 (1995), an informant informed a police officer that an individual sold crystal methamphetamine during specified hours, which continued until 2:00 a.m. A search warrant was executed at 10:25 p.m. on the same day it was issued. Id. Richardson was found in the residence and arrested. Id. at 887-88. Hawaii’s Rule 41(c), HRPP, similar to our Rule 41(c)(1)(E), N.D.R.Crim.P., “requires judges to have facts presented to them that demonstrate the existence of circumstances that would justify a nighttime search before issuing such a warrant.” Richardson, 904 P.2d at 890. The affidavit indicated drug sales took place until at least 2:00 a.m. and also early evening. Id. at 891. The Hawaii Supreme Court held that the police officer’s affidavit that supported the search warrant did not demonstrate a nighttime search was reasonably necessary. Id. The court concluded that there was “nothing in the record to explain why the search could not either have taken place in the early evening hours ..., or have waited until the next day.” Id.
[¶ 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 *898on the one night of surveillance and the confidential informant’s information, Bitz requested that he be allowed to execute the search warrant at any time of the day or night. Bitz stated in his affidavit: “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.” However, this is a conclusory statement not supported by any particularized evidence of nighttime drug manufacturing. The fact that the basement lights were on from 11:30 p.m. to before 1:00 a.m. does not support that Roth manufactured methamphetamine at night. Bitz testified at the preliminary hearing that he knew Roth had another individual residing in the basement bedroom of the residence.
[¶ 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, *899or 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, 499 N.W.2d at 875 (requiring probable cause be established “upon a showing that the evidence sought may be quickly and easily disposed of.”).
[¶ 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.
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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.
*900[¶ 54] I cannot find any facts in Bitz’s affidavit that made it necessary to enter Roth’s residence in the middle of the night rather than in the morning.
[¶ 55] In State v. Roth (“Roth I ”), 2004 ND 23, ¶¶ 21-24, 674 N.W.2d 495, our Court analyzed whether there was probable cause to support the no-knock search warrant Bitz obtained to enter Roth’s residence. We concluded Bitz’s affidavit “failed to provide any evidence that knocking and announcing may have placed the officers or others in danger” and that the affidavit “failed to set forth exigent circumstances supporting issuance of the no-knock provision of the search warrant.” Id. at ¶ 24. Therefore, “[t]here was no substantial basis for the magistrate’s conclusion that probable cause existed for the no-knock authorization.” Id. A no-knoek search warrant is validly issued if there has been a showing that either the sought-after evidence can be easily and quickly disposed of, or if there is a threat of physical violence. Utvick, 2004 ND 36, ¶ 15, 675 N.W.2d 387. By concluding there was not a substantial basis that there was probable cause for a no-knock search warrant, our Court implicitly concluded the sought-after evidence was not easily and quickly disposed of, which would have been an exigency supporting a no-knock search warrant. Roth I, at ¶ 24.
[¶ 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, 520 U.S. 385, 394-95, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the United States Supreme Court denounced a per se rule for no-knock search warrants in drug cases and, following the logic of Richards, our Court, in Fields, 2005 ND 15, 691 N.W.2d 233, denounced a per se rule for nighttime search warrants in drug cases.
[¶ 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*901ble cause and not reasonable suspicion or a hunch.
[¶ 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, 2006 ND 138, ¶ 8, 717 N.W.2d 593. Evidence illegally seized in violation of an individual’s Fourth Amendment rights must be suppressed under the exclusionary rule. Id.
[¶ 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, 2005 ND 15, ¶ 14, 691 N.W.2d 233. However, “[u]nder the good-faith exception to the federal exclusionary rule, suppression is not the appropriate remedy if the police reliance on the search warrant was objectively reasonable.” Utvick, 2004 ND 36, ¶ 26, 675 N.W.2d 387 (citing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). “The test under Leon is not whether the police officers executing the search warrant subjectively believed they were complying with the law. Rather, the test to be applied under Leon is an objective standard of what reasonably well-trained police officers would believe is probable cause for a nighttime search.” Fouse, 989 S.W.2d at 149. There are four situations in which the good-faith exception does not apply:
(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, 2004 ND 36, ¶ 26, 675 N.W.2d 387. If there is no police misconduct to deter by suppressing evidence, the good-faith exception applies and suppression of the evidence is not the appropriate remedy. Id.
[¶ 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, 255 Neb. 108, 582 N.W.2d 342 (1998), in concluding that the good-faith exception does not apply in this case. In Fitch, the court held the good-faith exception did not apply. Id. at 349. There, a police investigator prepared an affidavit for a search warrant of Fitch’s residence. Id. at 345. The affidavit stated that the investigator had just and reasonable grounds to believe that a controlled substance, drug paraphernalia, and records pertaining to possession and distribution of the controlled substance were at the resi*902dence. Id. The investigator, in his affidavit, stated he observed known drug offenders at the residence. Id. Marijuana leaves, stems, seeds, and a marijuana roach were found in trash bags that came from the residence. Id. The search warrant was executed at 10:00 p.m., seven days after a search warrant was issued. Id. at 346.
[¶ 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, 582 N.W.2d at 348. Next, the court looked to Rodriguez v. Superior Court (People), 199 Cal.App.3d 1453, 245 Cal.Rptr. 617 (1988). In Rodriguez,
[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, 582 N.W.2d at 349. The court also pointed out that “[t]he test for reasonable reliance on a search warrant is an objective standard of reasonableness which requires officers to have a reasonable knowledge of what the law prohibits.” Id. at 348; see also Leon, 468 U.S. at 919, n. 20, 104 S.Ct. 3405.
[¶ 65] The Arkansas Supreme Court, in Fouse, 989 S.W.2d at 150, concluded that a nighttime search warrant was not supported by probable cause and that the good-faith exception did not apply. The officer presented an affidavit that alleged reports by law enforcement of a chemical odor coming from Fouse’s residence, that Fouse had been allegedly associated in the distribution of methamphetamine with individuals who had been convicted of distributing controlled substances, that Fouse had been convicted in 1987 of delivery of a controlled substance, and that the officer had knowledge of the methamphetamine cooking process. Id. at 146, 149. The search warrant was executed at 12:20 a.m., and the officers found evidence of an active methamphetamine laboratory, drug paraphernalia, communication equipment, methamphetamine on Fouse’s person, and a firearm. Id. at 147. The court held that the nighttime search warrant was unsupported by sufficient facts to establish probable cause for a nighttime search. Id. at 149. The court emphasized: “Our concern today is for the integrity of our Rules.” Id. The court pointed out that what is required for a nighttime search was clear from its Rules of Criminal Procedure and “the multiple decisions of this court requir*903ing more than merely conclusory statements.” Id.
[¶ 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, 2004 ND 23, ¶ 3, 674 N.W.2d 495. “The trial court found the officers executing the search warrant realized the no-knock provision was invalid and therefore knocked and announced their presence.” Id. at ¶ 4. A no-knock warrant may be issued when there is a showing that either the sought-after evidence may be disposed of easily and quickly or if there is a threat of physical violence. Utvick, 2004 ND 36, ¶ 15, 675 N.W.2d 387. Implicit in Bitz’s actions is that he objectively knew that he had shown neither that the sought-after evidence could be easily and quickly disposed of or that there was a threat of physical violence. See id.
[¶ 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, 499 N.W.2d at 874 (holding that we will read into N.D.C.C. § 19-03.1-32(2) the requirement of probable cause in drug related nighttime searches). Our Court’s decisions have held time and again that more than conclusory statements and suspicions are needed for a nighttime provision in a search warrant. See, e.g., Fields, 2005 ND 15, ¶ 10, 691 N.W.2d 233; Knudson, 499 N.W.2d at 875; State v. Schmeets, 278 N.W.2d 401, 409 (N.D.1979). A reasonable officer would have knowledge of our rules and well-established law. The good-faith exception does not apply when a “law enforcement officer had knowledge, or may properly be charged with knowledge” that the affidavit did not provide probable cause for the nighttime search. See Leon, 468 U.S. at 918, 104 S.Ct. 3405.
[¶ 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, 285 N.W.2d 533, 539 (N.D.1979). In Berger, we stated the very warrant form used in this case was “not ideal,” but was sufficient. Id. at 539. We noted that the language indicated that the judge was satisfied that the property sought would probably be removed or destroyed if the warrant was not properly served. Id.
[¶ 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.
[¶ 72] MARY MUEHLEN MARING, J.