Roth v. State , 2007 N.D. LEXIS 125 ( 2007 )

VANDE WALLE, Chief Justice.

[¶ 1] Todd A. Roth appealed from a district court order denying his application for post-conviction relief. Roth argues his trial and appellate counsel was plainly ineffective for failing to challenge the nighttime provision of the warrant issued to search his home. We affirm.

I

[¶ 2] In late August 2002, the State charged Roth with possession of methamphetamine, possession of drug paraphernalia, and manufacture of a controlled substance. Roth was charged after law enforcement searched his home with a warrant during the early morning hours on August 28, 2002. Roth’s counsel filed a motion to suppress all evidence discovered in the search, arguing the warrant was not supported by probable cause and contained an illegal no-knock provision. The district court denied the motion to suppress. Roth entered a conditional guilty plea to the charges, reserving the right to appeal the adverse determination of the suppression motion.

[¶ 3] Roth’s counsel continued to represent him on appeal and raised the same issues regarding probable cause and the no-knock provision. In State v. Roth (Roth I), 2004 ND 23, ¶ 1, 674 N.W.2d 495, this Court affirmed. We concluded the officers had probable cause to search Roth’s home because the supporting affidavit contained substantial evidence of drug activity, including an informant’s tip that Roth was manufacturing methamphetamine, prior searches of Roth’s home that resulted in discovery of items indicating drug trafficking, and Roth’s association with other people suspected of drug use and trafficking. Id. at ¶¶ 13-15, 18-20. We also held that the no-knock provision was not supported by probable cause, but the warrant was still valid because law enforcement had functionally excised the invalid no-knock provision by declining to use it. Id. at ¶¶ 24, 28.

[¶4] In January 2005, Roth filed an application for post-conviction relief, raising multiple issues related to the legality of the search and also claiming that he received ineffective assistance of counsel. The district court concluded Roth had already raised the same issues on direct appeal in Roth I and denied his application for post-conviction relief. Roth appealed, and in Roth v. State (Roth II), 2006 ND 106, ¶ 1, 713 N.W.2d 513, this Court reversed the order denying post-conviction relief and remanded to the district court. We held that Roth was precluded from raising issues directly related to the issuance and execution of the search warrant, but that the district court should have considered the merits of his ineffective assistance of counsel claim. Id. at ¶¶ 8,17.

[¶ 5] On remand, the district court considered Roth’s claims of ineffective assistance of counsel by examining the record. Roth had claimed his counsel was ineffective for two major reasons. Id. at ¶ 9. First, Roth argued his counsel failed to raise the issue of whether the searching officers actually entered using the no-knock provision, despite their claims that they did not. Id. Second, he contended his counsel was ineffective for failing to chai-lenge the nighttime provision of the search warrant both at the suppression hearing and on direct appeal. Id. Roth claimed his counsel was plainly defective based on the record, specifically the affidavit in support of the search warrant, and therefore he did not request an evidentiary hearing. Id. at ¶ 12.

[¶ 6] As to the first claim, the district court found that Roth’s counsel had raised the issue of whether law enforcement entered using the no-knock provision in his reply brief about the suppression motion. Therefore, Roth’s counsel was not ineffective in that regard. As to the second claim, the district court found that counsel had never challenged the validity of the nighttime provision of the search warrant. The district court did not decide whether the nighttime warrant was supported by probable cause, but rather concluded the evidence would have been admissible in any event under the inevitable discovery doctrine. Because Roth failed to show that the evidence obtained from the nighttime search would have been suppressed, the district court concluded he had not proven ineffective assistance of counsel and denied his application for post-conviction relief. On this appeal, Roth renews his claim of ineffective assistance of counsel, relying solely on the ground that counsel failed to challenge the legality of the nighttime search warrant.

II

[¶ 7] The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel. Sambursky v. State, 2006 ND 223, ¶ 13, 723 N.W.2d 524. In order to prevail on a post-conviction claim of ineffective assistance, the petitioner bears a heavy burden. Rummer v. State, 2006 ND 216, ¶ 10, 722 N.W.2d 528. The petitioner must prove that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the petitioner was prejudiced by counsel’s deficient performance. Matthews v. State, 2005 ND 202, ¶ 10, 706 N.W.2d 74.

[¶ 8] As to the first prong, the petitioner must overcome the strong presumption that counsel’s representation fell within the wide range of reasonable professional assistance. Laib v. State, 2005 ND 187, ¶ 9, 705 N.W.2d 845. An attorney’s performance is measured considering the prevailing professional norms. Sambursky, 2006 ND 223, ¶ 13, 723 N.W.2d 524. In assessing the reasonableness of counsel’s performance, courts must consciously attempt to limit the distorting effect of hindsight. Id. Courts must consider all the circumstances and decide whether there were errors so serious that defendant was not accorded the “counsel” guaranteed by the Sixth Amendment. Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809.

[¶ 9] In order to meet the second prong, the petitioner must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Roth II, 2006 ND 106, ¶ 10, 713 N.W.2d 513. The petitioner must prove not only that counsel’s representation was ineffective, but must specify how and where counsel was incompetent and the probable different result. Laib, 2005 ND 187, ¶ 10, 705 N.W.2d 845. If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed. Wright v. State, 2005 ND 217, ¶ 11, 707 N.W.2d 242.

[¶ 10] Failure to file a pretrial suppression motion, by itself, does not equate to ineffective assistance of counsel. Ernst v. State, 2004 ND 152, ¶ 11, 683 N.W.2d 891. In order to prove an ineffective assistance claim based on counsel’s failure to move to suppress evidence, the petitioner must show actual prejudice, not merely possible prejudice. Id. at ¶ 12. In Kimmelman v. Morrison, 477 U.S. 365, 373-75, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), the United States Supreme Court set forth the standard which applies to a petitioner’s claim that counsel was ineffective for failing to raise a Fourth Amendment issue.

Where defense counsel’s failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excluda-ble evidence in order to demonstrate actual prejudice.

Id. at 375, 106 S.Ct. 2574; see also Williams v. Locke, 403 F.3d 1022, 1026 (8th Cir.2005); Bailey v. Newland, 263 F.3d 1022, 1029 (9th Cir.2001) (“[Pjetitioner must show that he would have prevailed on the suppression motion, and that there is a reasonable probability that the successful motion would have affected the outcome.”). Counsel is not ineffective for failing to make an argument that is meritless, either at trial or on appeal. Aydelotte v. State, No. CR 04-822, 2005 WL 3008619 2005 Ark. LEXIS 706, at *5 (Ark. Nov. 10, 2005); see also Smith v. Murray, 477 U.S. 527, 535-36, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (internal quotation omitted) (considering whether appellate counsel was ineffective and stating that the “process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy”).

[¶ 11] The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable on appeal. Rummer, 2006 ND 216, ¶ 9, 722 N.W.2d 528. Assistance of counsel is plainly defective when the record affirmatively shows ineffectiveness of a constitutional dimension. Roth II, 2006 ND 106, ¶ 12, 713 N.W.2d 513.

Ill

[¶ 12] Roth contends his trial and appellate counsel was plainly ineffective for failing to challenge the validity of the nighttime provision of the search warrant. In particular, Roth argues he would have prevailed on the suppression motion if his counsel had raised the issue of whether the nighttime warrant was supported by probable cause. Additionally, he claims the district court erroneously applied the inevitable discovery doctrine in this case.

[¶ 13] Because Roth argues that his counsel was plainly defective, we do not have the benefit of a post-conviction hearing transcript or an explanation from counsel. Rather, the merit of Roth’s claim must be determined solely from the facts in the record, particularly the affidavit in support of the search warrant. The record reveals the following facts.

[¶ 14] On August 20, 2002, Deputy Dion Bitz of the Metro Area Narcotics Task Force applied for a warrant to search Roth’s residence at 704 Concord Drive in Bismarck, North Dakota. Deputy Bitz’s affidavit in support of the search warrant stated, in relevant part:

4. Todd Roth is suspected of manufacturing methamphetamine at 704 Concord Drive.

5. The Task Force has received information from various sources regarding Todd Roth manufacturing controlled substances. In May, 2002, I observed Carla Haff s and Perry Anderson’s vehicles at the Todd Roth residence.... Perry Anderson resides in Mandan and is frequently observed at Paul Ereth’s residence in Mandan. The Task Force has received intelligence regarding Paul Ereth trafficking in narcotics.

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9. On August 1, 2002,1 interviewed a confidential source who stated that Todd Roth cooks methamphetamine in the basement of his residence twice weekly and the source had been at the Todd Roth residence while he was cooking methamphetamine.

10. Surveillance has been conducted on the residence at 704 Concord Drive. On August 7, 2002, surveillance began at 11:30 p.m. [LJights were on in the basement of the residence. License checks were run on the vehicles parked in front of the home. One vehicle was registered to Perry Anderson, the other was registered to Rollin Manufacturing, New Salem. Shortly before 1:00 a.m., the basement lights were shut off and Perry Anderson left the residence. An unknown person left the residence with Perry Anderson, walked to the mailbox, looked around the area as Perry Anderson drove away and then returned to the residence.

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13.On August 17, 2002, a Confidential Informant (Cl), who was the confidential source that officers spoke with on August 1, 2002, witnessed Todd Roth cooking methamphetamine at his residence. The Cl stated when the Cl walked in the residence, there was a cloud of smoke hanging in the residence. The Cl stated that Todd Roth is using the anhydrous method to cook due to the ammonia smell present while the Cl was at the residence. The Cl observed Todd Roth scraping a methamphetamine-like substance from a plate. The Cl described methamphetamine-like substance as a white substance, some in rock form, some in powder form.

14. The Cl has also provided information in the past that was independently corroborated and resulted in successful State and Federal prosecutions. The Cl has provided information which recently led to the arrest of a narcotics trafficker. Information the Cl has provided on other local drug traffickers has been independently corroborated.

15. I am requesting to be allowed to execute the warrant at any time of the day or night. This is necessary because the information gathered and surveillance conducted indicates that Todd Roth manufactures methamphetamine at night.

Based on the information contained in Deputy Bitz’s affidavit, the magistrate issued a no-knock warrant to search Roth’s residence “anytime day or night” within the next ten days.

[¶ 15] On August 28, 2002, law enforcement officers entered Roth’s home and executed the search warrant from about 12:37 a.m. until 2:40 a.m. Deputy Bitz testified that he waited to conduct the search until he knew Roth was at home. The officers knocked and announced their presence, and then entered with a breaching device when nobody opened the door. When the officers entered the residence, they observed Roth and two other men standing nearby looking at them. As a result of items discovered in the search, Roth was charged with possession of methamphetamine, possession of drug paraphernalia, and manufacture of a controlled substance.

A

[¶ 16] We note that the district court did not decide whether there was probable cause for a nighttime search. Rather, the district court immediately applied the inevitable discovery doctrine to hold that the evidence would have been admissible even if there was no probable cause. Before reaching a secondary issue like inevitable discovery, the district court should have decided whether there was probable cause to justify a nighttime warrant. Because the issue of probable cause may be disposi-tive on appeal, the district court should make a ruling on that issue.

[¶ 17] Ultimately, in this ease, the district court held that Roth did not receive ineffective assistance of counsel because he would not have prevailed on his suppression motion. We will not disturb a correct result merely because the district court assigned an incorrect reason, if the result is the same under the correct law and reasoning. Klose v. State, 2005 ND 192, ¶ 21, 705 N.W.2d 809. Therefore, we will consider whether Roth would have prevailed if he had raised the issue of lack of probable cause for a nighttime search.

[1Í18] Whether probable cause exists to issue a search warrant is a question of law which is fully reviewable on appeal. State v. Utvick, 2004 ND 36, ¶ 7, 675 N.W.2d 387. We generally defer to a magistrate’s determination of probable cause if there was a substantial basis for the conclusion, and doubtful or marginal cases should be resolved in favor of the magistrate’s determination. Id.

[¶ 19] It is well established that search warrants may be issued only upon a showing of probable cause. See, e.g., State v. Ebel, 2006 ND 212, ¶ 12, 723 N.W.2d 375. However, if the warrant applicant seeks authorization for a nighttime search, an additional showing is required. Rule 41(c)(1)(E), N.D.R.Crim.P., provides, “The 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.” We have construed the term “reasonable cause” as synonymous with “probable cause” for the purpose of issuing a nighttime warrant. Roth II, 2006 ND 106, ¶ 14, 713 N.W.2d 513 (citing State v. Herrick, 1997 ND 155, ¶ 19, 567 N.W.2d 336). Therefore, under N.D.R.Crim.P. 41(c)(1)(E), the magistrate may issue a nighttime search warrant only if there is a showing of probable cause to justify a nighttime search. Roth II, at ¶ 14; State v. Fields, 2005 ND 15, ¶ 9, 691 N.W.2d 233.

[¶ 20] The purpose of Rule 41(c) is to protect citizens from being subjected to the trauma of unwarranted nighttime searches. Fields, 2005 ND 15, ¶ 9, 691 N.W.2d 233. Courts have long recognized that nighttime searches constitute greater intrusions on privacy than do daytime searches. Roth II, 2006 ND 106, ¶ 14, 713 N.W.2d 513.

[¶ 21] However, despite the limitations of Rule 41(c), nighttime searches are permissible in certain circumstances. This Court has held that probable cause for a nighttime search exists upon a showing that the evidence sought may be quickly and easily disposed of if the warrant is not promptly executed. Fields, 2005 ND 15, ¶¶ 10-11, 691 N.W.2d 233 (citations omitted). An officer must set forth some facts for believing the evidence will be destroyed other than its mere existence. Id. at ¶ 10. Mere allegations about the presence of drugs do not lead to the inference that the drugs are easily disposable. Id. Furthermore, the mere fact that a person keeps odd hours does not support a finding of probable cause for a nighttime search. Id. at ¶ 12.

[¶ 22] We have also recognized that “there may be a variety of circumstances that justify the authorization of a nighttime search.” Id. at ¶ 10 (citation omitted). The “reasonable cause” standard contained in N.D.R.Crim.P. 41(c)(1)(E) focuses upon the necessity for executing the warrant at a time other than the daytime. See Explanatory Note, N.D.R.Crim.P. 41; 2 Wayne R. LaFave, Search and Seizure § 4.7(b), at 650-51 n. 24 (4th ed.2004) (analyzing the corresponding provision in Fed.R.Crim.P. 41); see also Commonwealth v. Camperson, 437 Pa.Super. 355, 650 A.2d 65, 70 (1994) (holding that “reasonable cause” for a nighttime search under the state rules of criminal procedure “requires a showing that the search cannot wait until morning”). Necessity for a nighttime search exists “where there is a reasonable possibility that the fruits, instrumentalities or evidence of crime sought would not be expected to be at the searched premises during the day or might be removed or dissipated if the search is delayed.” State v. Richardson, 80 Hawai'i 1, 904 P.2d 886, 890 (1995) (quoting State v. Brock, 294 Or. 15, 653 P.2d 543, 546 (1982)).

[¶ 23] Courts have upheld nighttime searches when there was particularized evidence of drug trafficking, sales, or manufacture which occurred late at night or in the early morning hours. See United States v. Randle, 196 Fed.Appx. 676, 680 (10th Cir.2006) (upholding nighttime search when the affidavit in support of the warrant contained information that the defendant only sold drugs after 10 p.m.); United States v. Tucker, 313 F.3d 1259, 1261, 1266 (10th Cir.2002) (concluding search at 5:10 a.m. was reasonable because officers had information that the defendants may have been in the process of manufacturing meth, and there was a risk of destruction of evidence as well as the danger of significant personal injury and property damage); State v. Eichorn, 143 Ariz. 609, 694 P.2d 1223, 1227-28 (Ct.App.1984) (finding good cause for a nighttime search when officers gathered evidence of two prior nighttime drug sales through surveillance); Aydelotte v. State, No. CR 04-822, 2005 WL 3008619, 2005 Ark. LEXIS 706, at *8-9 (Ark. Nov. 10, 2005) (upholding nighttime search because officer had information that drug manufacturing would be done overnight, and there was a danger that the drugs and other components might be moved once the process was complete); State v. Luckhardt, No. C3-02-2026, 2004 WL 1153024, 2004 Minn. App. LEXIS 573, at *11-12 (Minn.Ct.App. May 25, 2004) (holding nighttime search was justified when officers had a limited window of time to catch the defendant with pre-recorded money after a controlled drug purchase); Campbell v. State, 651 P.2d 696, 698 (Okla.Crim.App.1982) (upholding nighttime search when officer had information that defendants would begin drug manufacturing at midnight, because it was reasonable to conclude that the drugs would have been moved or concealed after their manufacture); Commonwealth v. Prokopchak, 279 Pa.Super. 284, 420 A.2d 1335, 1339-40 (1980) (finding reasonable cause for a nighttime search when officer had information that defendant was carrying a large amount of marijuana and a co-conspirator was coming that night or the next day to take his share). But see Fouse v. State, 337 Ark. 13, 989 S.W.2d 146, 149 (1999) (concluding there was no justification for a nighttime search because a strong odor of ether emanating from a residence at 9 p.m. was not a reasonable basis for concluding that methamphetamine was to be removed or sold in the immediate future).

[¶ 24] However, courts have found no necessity for a nighttime search when the warrant could have been effectively executed during daytime hours. See State v. Richardson, 80 Hawai'i 1, 904 P.2d 886, 891-92 (1995) (holding that a nighttime search was not reasonably necessary when drug transactions occurred throughout the night, but also in the early evening hours); State v. Fitch, 255 Neb. 108, 582 N.W.2d 342, 348 (1998) (finding no basis for a nighttime search when the affidavit stated only that known drug users were frequenting a residence and there was some evidence of drug activity based on a trash search); People v. Miller, 109 Misc.2d 276, 439 N.Y.S.2d 983, 985 (N.Y.City Crim.Ct. 1981) (concluding nighttime search was invalid because surveillance established that the illegal gambling activity continued into the daytime hours)-.

[¶ 25] Furthermore, courts-have held that nighttime searches were illegal when the supporting affidavit contained boilerplate language or eonclusory statements rather than particularized facts. See Luckhardt, 2004 WL 1153024, 2004 Minn. App. LEXIS 573, at *9 (stating that an officer seeking a nighttime warrant must present “something more than eonclusory boilerplate language”); Commonwealth v. Johnson, 315 Pa.Super. 579, 462 A.2d 743, 745-46 (1983) (holding there was no reasonable cause for a nighttime search when the affidavit contained only information that defendant had drugs on the premises and the affiant’s unsubstantiated belief that those substances would be sold by the next day); State v. Rowe, 806 P.2d 730, 731, 733-34 (Utah Ct.App.1991), rev’d on other grounds, 850 P.2d 427 (Utah 1992) (finding no valid basis for a nighttime search when the affidavit averred only that the suspect was storing drugs in his home, along with pre-printed language stating that the property sought could easily be destroyed or hidden).

[¶26] In this case, Deputy Bitz presented the magistrate with particularized information gathered through a confidential informant and surveillance. The confidential informant had been at Roth’s residence and provided detailed information about the manner in which Roth cooked methamphetamine. The informant specifically stated that Roth cooked methamphetamine twice weekly in the basement of his residence. Deputy Bitz vouched for the informant’s reliability and veracity in his supporting affidavit. See Roth I, 2004 ND 23, ¶¶ 8-15, 674 N.W.2d 495 (concluding that the informant’s report supported a finding of probable cause). After receiving the informant’s report that Roth regularly manufactured methamphetamine in his basement, law enforcement conducted surveillance on Roth’s residence. When surveillance began at 11:30 p.m., lights were on in the basement. One of the vehicles parked outside was registered to Perry Anderson, who was suspected of involvement with drug use and trafficking. Shortly before 1:00 a.m., the basement lights were shut off, and Anderson left the residence.

[¶ 27] We conclude the information contained in Deputy Bitz’s affidavit provided sufficient probable cause to justify a nighttime search. The confidential informant stated that Roth manufactured methamphetamine in his basement, and surveillance established that there was activity in the basement during the late nighttime hours. Surveillance also established that at least one other person connected with drug activity was in the residence at the time. These facts, taken together, indicate that Roth was likely manufacturing methamphetamine in his home at nighttime. Therefore, in order for law enforcement to catch Roth in the process of manufacturing methamphetamine, the search needed to be conducted at nighttime rather than in the daytime. If law enforcement searched Roth’s residence at a time when he was not manufacturing, it was reasonably probable that much of the evidence of the manufacturing process, including the methamphetamine itself, would have been removed from the premises. Nor is the evidence as convincing when the actual manufacturing is not in process. Section 19-03.1-23.1, N.D.C.C., provides an increased penalty for the manufacture or distribution of a controlled substance within one thousand feet of a school, but not for possession with intent. See State v. Dennis, 2007 ND 87, ¶ 1, 733 N.W.2d 241. For these reasons, law enforcement officers have a legitimate interest in catching a suspect in the act of manufacturing drugs.

[¶ 28] The facts at issue in this case create a close question. However, we resolve doubtful or marginal cases in favor of the magistrate’s determination. We cannot say the magistrate erred in finding probable cause to justify a nighttime search when the affidavit contained particularized facts which, when read together, led to the reasonable conclusion that Roth was manufacturing methamphetamine at night.

[¶ 29] Because there was sufficient probable cause for a nighttime search, Roth would not have prevailed if his counsel had raised the issue either in a suppression motion or on direct appeal. Roth has not shown that he suffered actual prejudice because of counsel’s failure to challenge the nighttime provision of the search warrant. Therefore, we conclude Roth has not met his heavy burden of proving ineffective assistance of counsel.

B

[¶ 30] Assuming, for the purpose of discussion only, that there was no probable cause for a nighttime search, the evidence would be admissible under the good faith exception to the exclusionary rule.

[¶ 31] The threshold question is whether the federal exclusionary rule applies to a violation of N.D.R.Crim.P. 41(c)(1)(E). This Court has held that suppression is the appropriate remedy for an illegal nighttime search under Rule 41(c). See State v. Fields, 2005 ND 15, ¶ 14, 691 N.W.2d 233. The Explanatory Note to N.D.R.Crim.P. 41 further supports this approach:

Rule 41 is an adaptation of Fed. R.Crim.P. 41 and is designed to implement the provisions of Article I, Section 8, of the North Dakota Constitution and the Fourth Amendment to the United States Constitution, which guarantee, “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.” To implement this constitutional protection, an illegal search and seizure will bar the use of such evidence in a criminal prosecution. The suppression sanction is imposed in order to discourage abuses of power by law enforcement officials in conducting searches and seizures.

Thus, the provision of Rule 41(c) governing nighttime warrants implicates substantive constitutional rights, particularly the right to be free from unreasonable searches and seizures under the Fourth Amendment. Cf. State v. Utvick, 2004 ND 36, ¶¶ 27-28, 675 N.W.2d 387 (reaching the same conclusion with regard to the statute governing no-knock warrants); State v. Sakellson, 379 N.W.2d 779, 784 (N.D.1985) (quoting Ker v. California, 374 U.S. 23, 38, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963)) (stating that “the method of entering the home may offend federal constitutional standards of reasonableness and therefore vitiate the legality of an accompanying search”). Because a violation of Rule 41(c)(1)(E) is tantamount to a violation of the Fourth Amendment, the federal exclusionary rule applies. Cf. Utvick, at ¶ 27. But see Hudson v. Michigan, — U.S. —, —, —, 126 S.Ct. 2159, 2165, 2168, 165 L.Ed.2d 56 (2006) (holding that a violation of the Fourth Amendment knock-and-announce rule does not require exclusion of evidence found in the ensuing search).

[¶ 32] If the exclusionary rule applies when a statute or rule implicating substantive constitutional rights is violated, and the source of the exclusionary rule is the Fourth Amendment, then we must also consider the application of the good faith exception set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984). See State v. Herrick, 1999 ND 1, ¶ 12, 588 N.W.2d 847; see also United States v. Maholy, 1 F.3d 718, 721-23 (8th Cir.1993) (holding that the fruits of a nighttime search were admissible under the good faith exception, even if the search violated the Fourth Amendment). Under the good faith exception to the federal exclusionary rule, suppression is not the appropriate remedy for an illegal search if an officer’s reliance on the search warrant was objectively reasonable. Utvick, 2004 ND 36, ¶ 26, 675 N.W.2d 387. The good faith inquiry focuses upon whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization. State v. Van Beek, 1999 ND 53, ¶ 25, 591 N.W.2d 112. However, an officer may not always reasonably rely upon the validity of a search warrant issued by a magistrate. Id. We have recognized four specific situations when the good faith exception does not apply because the officer’s reliance on the warrant is not objectively reasonable:

(1) when the issuing magistrate was misled by false information intentionally or negligently given by the affiant; (2) when the magistrate totally abandoned her judicial role and failed to act in a neutral and detached manner; (3) when the warrant was based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) when a reasonable law enforcement officer could not rely on a facially deficient warrant.

Herrick, at ¶ 15 (citing Leon, at 923, 104 S.Ct. 3405). “[W]hen reviewing an officer’s reliance upon a warrant, we must determine whether the underlying documents are devoid of factual support, not merely whether the facts they contain are legally sufficient.” United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir.1993) (internal quotation omitted).

[¶ 33] Under the facts of this case, we conclude the good faith exception would apply because Deputy Bitz’s reliance on the search warrant was objectively reasonable. There is no evidence that the issuing magistrate was misled by false information or failed to act in a neutral manner. The warrant itself was not facially deficient. Deputy Bitz presented particularized facts in the supporting affidavit which he gathered from a confidential informant and through surveillance. The information indicated that Roth was manufacturing methamphetamine in his residence, most likely in the nighttime. The affidavit was not so lacking in indicia of probable cause that Deputy Bitz’s belief in its existence was entirely unreasonable. Therefore, Deputy Bitz reasonably relied on the issuing magistrate’s determination that a nighttime warrant was justified.

IV

[¶ 34] We conclude Roth would not have prevailed if his counsel had raised the issue of lack of probable cause for a nighttime search either in a suppression motion or on direct appeal. Because Roth did not suffer actual prejudice as a result of counsel’s failure to raise this issue, he did not receive ineffective assistance of counsel. The district court’s order denying post-conviction relief is affirmed.

[¶ 35] DALE V. SANDSTROM, DANIEL J. CROTHERS and CAROL RONNING KAPSNER, JJ., concur.