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Justices throw out evidence from nighttime search

BISMARCK, N.D. (AP) - The North Dakota Supreme Court has thrown out evidence obtained in a nighttime search and returned the case to district court.

Todd Zeller, of Fargo, appealed his conviction of possession of methamphetamine and marijuana with intent to manufacture or deliver. He said a provision in the warrant allowing a nighttime search was not supported by probable cause.

A magistrate judge had authorized the November 2012 search at 3:25 a.m., and police executed the warrant at 4 a.m.

The justices in a 4-1 vote said police did not prove that evidence would be quickly disposed of if the warrant was not promptly executed.

Justice Dale Sandstrom said in his dissent that the subjects were "wide awake at nighttime'' and there is "no rational reason'' that the search should have been delayed.

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