Regular nighttime meth cooking justified nighttime search

Nighttime search was justified for a meth lab. The officers had good information that defendant did his cooks twice a week at night in his basement. Officers watched the premises and saw the lights turned off and another person leave. The potential for removal of the meth before daytime justified a nighttime entry. Furthermore, the officers could objectively rely on the warrant for the nighttime entry under the good faith exception. Roth v. State, 2007 ND 112, 735 N.W.2d 882 (2007):

[*P27] 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, P1. For these reasons, law enforcement officers have a legitimate interest in catching a suspect in the act of manufacturing drugs.

Comment: This was raised as in ineffective assistance claim for defense counsel’s failure to properly raise a nighttime search issue, and the court reached the merits. On the exclusionary rule, the court cited Hudson, but only as “But see,” not relying on it.

Police officers were justified in knocking on the door of the defendant’s apartment and ordering its occupant to step outside into the hallway under the exigent-circumstances exception to the warrant requirement: the officers were responding to a report of shots fired near the apartment; the officers had apprehended defendant and his fiancee; defendant matched the description of the shooter; the fiancee told police that her brother and a gun were inside the apartment, but not if anyone else was present; the officers heard rustling and movement after they knocked on the door; and the occupant attempted to slam the door shut when he saw the officers. [Headnote by the court] Consent thereafter was voluntary. State v. Smith, 2007 Ohio 3786, 2007 Ohio App. LEXIS 3445 (1st Dist. July 27, 2007).*

Police responding to a stabbing call, assured by the defendant that the victim had not been cut all that bad, still had exigent circumstances to enter. State v. Dillon, 2007 SD 77, 738 N.W.2d 57 (2007):

[*P24] Dillon claims the actions are not reasonable because Susan Dillon told Chief Deputy Baxter, the cut was not too bad and it was an accident. Furthermore, Dillon claims that two hours had elapsed since the phone call reporting the stabbing occurred, thus no emergency existed. It would be unreasonable to expect the police to believe Arrow was not really injured, stop their investigation and simply ignore the possibility he could be in need of some assistance of which Susan Dillon was not aware or not divulging. This is especially true when Susan Dillon had already lied to the officers about who had stabbed Rattling Leaf and tried to tell the police Rattling Leaf “had hit some glass on the stairwell and that’s where the blood came from.” Viewing these facts and the police actions using the objectively reasonable standard indicates exigent circumstances existed.