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The Fourth Amendment Comes Out At Night, Minnesota Supreme Court Holds:
Today the Minnesota Supreme Court held in State v. Jackson that the police violate the Fourth Amendment if they execute a search warrant at night without getting special permission based on a request with specific facts to execute the search at night. (See also the related case handed down today, State v. Jordan.) I don't think I've ever seen anything quite like this. [See update at the end of the post; it turns out there is at least some authority in this direction, even if no court has taken it this far.] The hour of execution of a search is generally left to statute, and the few constitutional cases on this issue involve warrants that specify on their face that they must be executed in the day but are instead executed at night. In this case, by contrast, the warrant specifically authorized a search at night. After the Supreme Court's decision in United States v. Grubbs, the Court's approach strikes me as pretty far out of step with Fourth Amendment caselaw.

  The basic reasoning of the case is that there is a "period of nighttime repose" at which time there are special interests to be protected inside the home that a normal search warrant does not address:
We believe that at certain times it will be readily apparent what is protected during this period of nighttime repose. For example, if the police search an unlit home at 3 a.m. without proper nighttime authorization, they run considerable risk of violating the occupants' interest in being free from intrusion during a nighttime period of repose. But if the police search a home at 8:30 p.m. on the summer solstice when the doors are open and a party is underway at a home, they are much less likely to run the risk of seriously violating the occupants' interest in being free from such intrusion. These examples illustrate a key aspect that we recognize and acknowledge about the interest we have articulated, especially at its beginning and end. This definition is a bit nebulous and necessarily encompasses what Justice Robert Jackson might refer to as a "zone of twilight," within which the right to protection is less certain and will depend "on the imperatives of events and contemporary imponderables rather than on abstract theories of law." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
  The Court concludes that in this case, the search warrant was executed during the aforementioned "period of nighttime repose":
Having previously defined the interests that the limitation on nighttime searches is designed to protect, we now examine the facts of this case to determine if Jackson's constitutional rights were violated. The police entered Jackson's home at 9:25 p.m. on December 11 when it would have been dark for several hours. The record does not indicate that the police had any specific information about what was going on in the home before entering it at nighttime. Further, . . . we conclude that the nighttime entry into Jackson's home cannot be rendered constitutionally sound by the fact that the police happened to find Jackson and her children awake, fully clothed, and sitting at the kitchen table upon entering the home. Therefore, we conclude that the police violated Jackson's right to be free from unreasonable searches and seizures guaranteed by the United States Constitution when, without information indicating that Jackson had not yet entered a period of nighttime repose, they entered her home at 9:25 p.m. in the wintertime—December 11—with a search warrant that invalidly authorized a nighttime entry. In reaching this conclusion we need not decide the exact time when Jackson's constitutionally protected period of nighttime repose began and ended. Rather, we need only conclude that the search of her home fell within the protected time period.
  I find this reasoning extremely weak. I don't think I've ever come across cases suggesting that there is a special constitutional rule for nighttime searches beyond probable cause and particularity. The federal circuit court cases the Court mentions dealt with daytime warrrants executed at night; the Fourth Amendment defect was that the warrants by their terms prohibited the nighttime entry. This case is different, as the warrant itself authorized nighttime entry. Further, it's interesting to note by comparison that the Federal Rule 41 that governs search warrants defines the "day time" for executing search warrants as 6:00 am to 10:00 pm, see Rule 41(a)(2)(B). In the federal system, then, this warrant would have been deemed executed in the day time rather than at night. (Minnesota has a different definition; the statute defines the daytime as being from 7am to 8pm.).

  More broadly, I find it hard to believe that there is some sort of free floating "period of nighttime repose" doctrine out there that the Minnesota court has discovered that makes searches problematic based on a test the Court seems unable to define. As much fun as it is to pledge allegiance to the Framers while inventing brand-new doctrines of U.S. Constitutional law, I find it hard to believe that the U.S. Supreme Court would go along with this new approach. The Minnesota court was of course free to construe the Minnesota warrant statute to require this result, as it did here. But going out on a limb and adding the federal constitutional holding was pretty clearly unwarranted (pun intended).

  Anyway, there's a possible "adequate and independent state ground" (AISG) problem that might interfere with Supreme Court review: The Minnesota court also based its ruling on the Minnesota warrant statute, and although it looks like it's a dependent claim (the arguments for the two are essentially identical), that's a possible reason the Supreme Court might not take the case. If the Supreme Court can get its hands on the Fourth Amendment part, however, I would expect them to be interested in the case.

  Thanks to Ted Sampsell-Jones for the link.

  :UPDATE: Further research and some helpful comments indicate that there is authority suggesting that the timing of the search is relevant to its reasonableness; there is also a dissent by Thurgood Marshall (joined by Brennan and Douglas) suggesting in dicta that a rule something like what the Minnesota court creates would be a good idea. On the other hand, the Minnesota court seems to be the first to haven taken the ball and run with it; it's also in direct tension with what federal courts have done, and in particular with Fourth Circuit's decision in United States v. Rizzi, 434 F.3d 669 (4th Cir. 2006).
TerrencePhilip:
The cops often like to search drug dealers/users in the morning, because they are asleep at that time when most people are working; does that violate their right to "repose" if the police expect them to be sleeping during the day?
12.6.2007 7:02pm
methodact:
Because the whole idea of dragging people out of their sound sleep is part of interrogation psyops. Even the act of reducing people to strip naked at jails is designed to keep people psychologically off-balance and to induce disclosures that they wouldn't ordinarily voluntarily make with their full wits about them.
12.6.2007 7:04pm
MarkField (mail):
Wasn't the common law rule that all searches had to be conducted during the day? I vaguely recall reading that somewhere.
12.6.2007 7:15pm
Visitor Again:
As much fun as it is to pledge allegiance to the Framers while inventing brand-new doctrines of U.S. Constitutional law,

Well, Orin, you seem to accept judicial creativity when it comes to inventing new exceptions to the fourth amendment warrant requirement--per your petition for certiorari on the "consent once removed" doctrine about which you posted earlier today.

I'd say the Minnesota court's reading of the fourth amendment doesn't involve anything like the creativity required to uphold warrantless searches by "consent once removed." Under that imaginative doctrine, which, according to your petition, first emerged only two decades ago, consent achieved by the deception of an undercover police agent magically becomes consent for the entire police department to enter the home. I don't see anything in the language of the fourth amendment that endorses this gaping exception to the warrant requirement--unless it's enough to say, hey, it's reasonable, in which case it seems to me it would be equally okay to say of a nighttime search not specifically justified in the warrant application, hey, it's not reasonable.

At least the proposition that one's repose in one's home ought not to be disturbed at nighttime unless on a special showing of need made within the warrant application serves the fourth amendment purpose of preserving the sanctity of the home against unnecessarily intrusive searches and seizures. And as a side benefit it will cut into those nasty confrontations that sometimes follow nighttime police raids on the home.
12.6.2007 7:26pm
wekt:
If the police decide to search someone's home at night while the occupants are sleeping, I think that would qualify as an 'unreasonable search' (both by today's standards and those of 1787), unless there is a compelling reason that the search cannot be done during the day. So, based on the text of the Constitution (i.e., setting aside stare decisis), I would say that such searches are protected against by the 4th Amendment.

In this particular case, however, the occupants were clearly up and about, so I agree that there was no violation of their right to be secure against unreasonable searches.
12.6.2007 7:27pm
Gabriel Malor (mail):
MarkField, I also vaguely recall from a Criminal Procedures class that nighttime execution of warrants on private homes is especially problematic and must be specifically addressed by the signing judge.

A very brief glimpse for the root of the "special constitutional rule for nighttime searches beyond probable cause and particularity," as Prof. Kerr writes, led me to Jones v. United States, 357 U.S. 493, 498.

The facts of this case impressively bear out these observations, for it is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home that occurred in this instance.


That one sentence on nighttime intrusion has been used in various circuits to place greater scrutiny on nighttime searches. See e.g. United States v. Callwood, 66 F.3d 1110 (10th Cir. 1995), Fludd v. United States Secret Service, 771 F.2d 549 (D.C. Cir. 1985).
12.6.2007 7:32pm
arbitraryaardvark (mail) (www):
Another reason the SCOTUS would be unlikely to take the case is that the state constitutional claim is preserved for review, so even if SCOTUS reversed, the state court could reinstate the holding on state grounds.
12.6.2007 7:32pm
Anderson (mail):
The MN justices were crazier than bedbugs if they didn't expressly rest their holding on state constitutional grounds as well.

I don't find the holding absurd on policy grounds, for reasons set forth above; who should be making that policy, in MN and in the U.S., is another issue.
12.6.2007 7:50pm
Visitor Again:
Another reason the SCOTUS would be unlikely to take the case is that the state constitutional claim is preserved for review, so even if SCOTUS reversed, the state court could reinstate the holding on state grounds.

Orin already pointed out that the state court based its decision on its construction of a state statute as well as on the fourth amendment. Thus an adequate state ground for the decision already exists. There is no need for the state court to reach the state constitutional question.
12.6.2007 7:51pm
Westie:
I'd think the state court could insulate itself by basing its decision on state statute and then state constitutional grounds, if necessary.

Aside from the repose issue, there also seems to be a safety argument. When are searches most likely to lead in a death (either of the resident who is shot after pulling a gun, or of an officer shot by the gun)? I'd lay money on nighttime searches. They should be barred on that basis alone.

I guess, unlike Orin, I'm not all that troubled by Minnesota being "out of step" with 4th Amendment law if it means that Minnesota residents are subjected to fewer ridiculous middle of the night searches. I'm glad that a state offers its citizens more protections than does the federal government.
12.6.2007 8:06pm
Syd Henderson (mail):
Isn't the problem here that the police could have used the same warrent to search the place at 3:00 a.m.?
12.6.2007 8:49pm
PaulK (mail):
I'd just like to know why they quoted Youngstown. It seems that if there is a right of nighttime repose, existing in the twilight or not, it's a lot different from a right not to have your steel mill nationalized.
12.6.2007 9:12pm
ReaderY:
I think generally speaking state courts should first decide constitutional issues and only address federal constitutional questions if the state constitution does not deal with it.

I also think the Supreme Court should not take cases if it appears likely the state court decided the case on state-law grounds even if it also went ahead and decided the matter on federal constitutional questions. It would be helpful if when it declined cases on such grounds it signalled that it was doing so, e.g. by dismissing for want of probable jurisdiction (possibly with a one-line statement referring to a probable independent state-law basis) rather than simply denying cert.

I think that in cases where there is a mixed state and federal basis, the Supreme Court decides the federal question, and the state court then clarifies the state-law grounds, the Supreme Court is providing an advisory opinion in violation of Article III. It should avoid doing so in ways that signal (if not definitively deciding) that it regards the lower-court case as not definitely deciding the federal question.
12.6.2007 9:24pm
Drake (mail) (www):
The Fourth Amendment precludes such nocturnal omissions? Maybe in their dreams.
12.6.2007 9:27pm
JGR (mail):
I personally would rather the police search my house at 9 or 10pm - when I was fairly sure to be home and had some level of monitoring - than during the day when I was at work. But I agree that, other things being equal, a search at 3 am is likely to be purely spiteful.
12.6.2007 9:43pm
Oren:

As much fun as it is to pledge allegiance to the Framers while inventing brand-new doctrines of U.S. Constitutional law . . .


US Constitutional interpretation is largely guided by English Common Law which can be used a guide with respect to what constitutes a 'reasonable' search. For instance, the 'knock and announce' rule that the court eviscerated in Hudson dates back to 1603.

Far from being 'brand-new', the rights are deeply ingrained in our common law heritage and to discard them is to read that heritage out of the constitution.
12.6.2007 9:54pm
David M. Nieporent (www):
US Constitutional interpretation is largely guided by English Common Law which can be used a guide with respect to what constitutes a 'reasonable' search. For instance, the 'knock and announce' rule that the court eviscerated in Hudson dates back to 1603.

Of course, the 'knock and announce' rule was not challenged in Hudson; the remedy for violations of the knock and announce rule was, and what the court actually did was hold that the exclusionary rule was inapplicable. And of course the exclusionary rule doesn't go back to 1603, or "English Common Law" at all. It wasn't a centuries-old rule, but a 45-year old rule -- or, by the most generous counting, a 92-year old rule.

So your snark is not only misplaced, but outright wrong. The court in Hudson did not "eviscerate" anything; it applied "our common law heritage."
12.6.2007 10:15pm
OrinKerr:
Oren, thank you for the instruction on U.S. Constitutional interpretation. I'm curious: what English common law cases do you have in mind?
12.6.2007 10:22pm
Clayton E. Cramer (mail) (www):
Think "Nacht und Nebel"--the practice of arresting people in the wee hours of the morning, when no one was around to see them get picked up by the Gestapo. But as much as I agree that warrants should be served, as much as practical, while people are awake, I am not sure that the Fourth Amendment imposes such a requirement. If someone can point to evidence that middle of the night searches were in some way recognized as inappropriate in 1791, I will buy this claim. But otherwise, I can only express my disapproval of rousting someone out of bed to serve a warrant. If this practice is common, it might be appropriate for the state legislatures to ban it statutorily.
12.6.2007 10:55pm
Greg (www):
Think "Nacht und Nebel"

No, think general warrants, which were executed at night.

But as much as I agree that warrants should be served, as much as practical, while people are awake, I am not sure that the Fourth Amendment imposes such a requirement.

Which is why the court didn't say that. They said that if you want to serve a warrant during the night, you must plead the facts with particularity. That serving at night “is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.”

Minnesota has a different definition; the statute defines the daytime as being from 7am to 8pm.

Have you been to Minnesota? On December 11, in Itasca county, the sun set at 4:22 pm.

As much fun as it is to pledge allegiance to the Framers while inventing brand-new doctrines of U.S. Constitutional law

Orin, the court cites, among other things, Tracey Maclin's article at 77 BU L. Rev. 925, in which he tells us that by the 1780s, all the states but Maryland had forbidden nighttime searches and the First Congress passed a law requiring all searches to take place during the day.

This is the same well from which the knock-and-announce rule comes, which the court has recognized (but only did so in 1995).

I mean, if the court, in Wilson v. Arkansas said, of the 4th, "In evaluating the scope of this right, we have looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing" and the traditional protection at the time of the framing was to severely limit night-time searches, why would it be surprising that the police must, like they do for no-knock warrants, come up with a good reason for a night-time search?
12.6.2007 11:43pm
Greg (www):
In Gooding v. U.S., 416 US 430 (1974), the majority allowed a statute permitting nighttime warrants without a special showing, but didn't address the Fourth Amendment issues. Marshall's dissent took the majority to task for this, and gives us more clues that this is not some brand-new, free-floating constitutional principle:


Fundamentally at issue in this case is the extent of the protection which we will all enjoy from police intrusion into the privacy of our homes during the middle of the night. The Fourth Amendment was intended to protect our reasonable expectations of privacy from unjustified governmental intrusion. Katz v. United States, 389 U.S. 347, 360-362 (1967) (Harlan, J., concurring). In my view, there is no expectation of privacy more reasonable and more demanding of constitutional protection than our right to expect that we will be let alone in the privacy of our homes during the night. The idea of the police unnecessarily forcing their way into the home in the middle of the night -- frequently, in narcotics cases, without knocking and announcing their purpose -- rousing the residents out of their beds, and forcing them to stand by in indignity in their night clothes while the police rummage through their belongings does indeed smack of a "'police state' lacking in the respect for . . . the right of privacy dictated by the U. S. Constitution." S. Rep. No. 91-538, p. 12 [**1797] (1969). The public outrage at the series of mistaken nighttime raids by narcotics agents in Collinsville, Illinois, last [*463] April, see N. Y. Times, Apr. 29, 1973, p. 1, col. 5; N. Y. Times, Apr. 30, 1973, p. 30, col. 1, serves to emphasize just how inconsistent with our constitutional guarantees such nighttime searches are.

This Court has consistently recognized that the intrusion upon privacy engendered by a search of a residence at night is of an order of magnitude greater than that produced by an ordinary search. Mr. Justice Harlan observed in holding a nighttime search unconstitutional in Jones v. United States, 357 U.S. 493, 498 (1958): "It is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home." In Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971), the Court again recognized that a midnight entry into a home was an "extremely serious intrusion." And our decision in Griswold v. Connecticut, 381 U.S. 479 (1965), was in large part based upon our revulsion at the thought of nighttime searches of the marital bedroom to discover evidence of illegal contraceptive use. See id., at 485-486.

12.7.2007 12:02am
OrinKerr:
Greg,

That's fair up to a point. In his Goodling dissent, Justice Marshall, joined by Justices Brennan and Douglas, expressed the view in dicta that something akin to the State v. Jackson approach was a decent argument that could be made someday in a future case. On the other hand, how does that suggest that the doctrine is correct or constitutionally grounded? Marshall, Brennan, and Douglas thought a lot of things.
12.7.2007 12:36am
Greg (www):

An Englishmans dwelling House is his Castle. The Law has erected a Fortification round it — and as every Man is Party to the Law, i.e. the Law is a Covenant of every Member of society with every other Member, therefore every Member of Society has entered into a solemn Covenant with every other that he shall enjoy in his own dwelling House as compleat a
security, safety and Peace and Tranquility as if it was surrounded with Walls of Brass, with Ramparts and Palisadoes and defended with a Garrison and Artillery. . . . Every English[man] values himself exceedingly, he takes a Pride and he glories justly in that strong Protection, that sweet Security, that delightfull Tranquillity which the Laws have thus secured to him in his own House, especially in the Night. Now to deprive a Man of this Protection, this quiet and Security in the dead of Night, when himself and Family confiding in it are asleep, is treat[ing] him not like an Englishman not like a Freeman but like a Slave . . . .


1 LEGAL PAPERS OF JOHN ADAMS, 137 (quoting Adams’s notes of his argument in the 1774 case King v. Stewart).
12.7.2007 12:39am
Greg (www):
how does that suggest that the doctrine is correct or constitutionally grounded?

I was answering your first complaint, that you'd never seen anything like this and that it was a totally free-floating Constitutional principle that the Minnesota courts "discovered." By reading their case, and glancing at the things they cited, I've discovered that far from being a free-floating constitutional principle, it's at least as historically grounded as the no-knock rule (Wilson v. Arkansas points out that "and a few States had enacted statutes specifically embracing the common law view that the breaking of the door of a dwelling was permitted once admittance was refused..." contrast that with the fact that all but one state had passed a law banning nighttime searches and the passage of a law in the First Congress doing essentially the same.)

But, to answer your NEW question, here's the reasoning:

1. Wilson says we interpret the 4th based on what were the traditional protections in place at the founding. 514 US 927, 931.

2. At the founding, all but one state had passed laws banning nighttime searches and the First Congress did too. In fact, according to Maclin's article at footnote 8, "[d]uring the Framers' era, "[s]econd to the requirement for specificity in warrants, the hidden unconstitutionality of nocturnal searches was the most certain feature of the [fourth] amendment's original understanding. In the 1780's, American law rejected nighttime searches even more than general ones." William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602-1791, at 1510 (1990) (unpublished Ph.D. dissertation, Claremont Graduate School) (available from UMI Dissertation Services, 300 N. Zeeb Road, Ann Arbor, Michigan).

3. This is a traditional protection.

4. It should be held to the same requirement as knock and announce.

So, Orin, how is this NOT grounded in the same Constitutional soil as the knock-and-announce rule?
12.7.2007 12:58am
OrinKerr:
Greg,



My initial comment stated that I had never heard of anything like this; I appreciated you pointing me to the Marshall dissent. I thank you for it.

As for the differences between this and the knock and announce cases, a few responses:

(a)K&A was an English common law rule going back at least to 1603, and it was well established and recognized by all the common law treatise writers. As I understand it, there was no nighttime search warrant rule or principle known in the English common law at all.

(b) Re the Cuddihy characterization, as quoted in Maclin's footnote, I'll have to check my copy of Cuddihy to see the context.

(c) I think it's quite plausible to argue that time of execution is relevant to reasonableness, just as K&A was relevant to reasonableness in Wilson. I'm with you there. But even accepting this, why is a search warrant that explicitly authorizes a search at night and is executed at 9:25pm constitutionally unreasonable? That counts as daytime under federal law. Where is the court getting this "nighttime repose" concept, or the concept that the Minnesota? The court appears to be deriving this from first principles of nightness, not recognizing common law authority. Why is 9:25 too late, and how much of a showing is required to execute a warrant at night, and where is the court getting any of this? Was thaere a principle of nighttime repose at common law? If there was, I'm looking forward to learning about it, but I haven't heard of it before.

(d) If you're going to analogize to Wilson v. Arkansas to say it's part of reasonableness, aren't you also stuck analogizing to Hudson v. Michigan and saying there's no suppression remedy even if it is?
12.7.2007 1:23am
OrinKerr:
Here are some interesting cases on this issue I've come across:

United States v. Rizzi, 434 F.3d 669, 674 (4th Cir.2006), offers the most comprehensive discussion:
In Richards, the Court held more narrowly that the Fourth Amendment forbids statutes that except a class of searches from the knock-and-announce requirement. See Richards, 520 U.S. at 391-95, 117 S.Ct. 1416. Legislatures cannot abrogate the knock-and-announce rule, even for a small class of searches, because the rule is incorporated within the Fourth Amendment; judges must decide, either before or after a search on a case-by-case approach, whether dispensing with a knock and announcement was reasonable. Richards, 520 U.S. at 394, 117 S.Ct. 1416; see also Wilson v. Arkansas, 514 U.S. 927, 934-36, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) (holding that officers must knock *675 and announce themselves and leaving to lower courts the task of “determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment”). The Supreme Court, however, has never held that the Fourth Amendment prohibits nighttime searches, despite the disapproval voiced occasionally by a Justice in dissent. See, e.g., Gooding, 416 U.S. at 462, 464, 94 S.Ct. 1780 (Marshall, J., dissenting).

Because the rule against no-knock searches is a component protection of the Fourth Amendment warrant requirement, it may be dispensed with only in particular exigent circumstances where knocking would undermine the effect of the warrant. But constitutionalizing a standard for when warrants can be served would involve so many variables that any rule would be difficult to articulate, much less serve as a component protection of the Fourth Amendment. Unlike the simple knock-and-announce requirement, the appropriate time for a search of a home is not amenable to a universal rule. The same privacy interest exists night and day, every day, and the Fourth Amendment knows no holidays. What differs is how individuals experience intrusions on that privacy. Some people work at night and sleep by day, and others value most highly the privacy of the daytime. The intrusion on privacy during some daytime activities would undoubtedly be even more burdensome than a nighttime intrusion. For example, execution of a warrant during a family dinner on Thanksgiving day or during the celebration of a wedding might be considered more intrusive than a routine nighttime execution of a warrant at 10:30 p.m. But every search burdens the peace, privacy, and personal convenience of persons in their homes because police intrusion into the close of the home is inherently burdensome. For that reason, the Constitution provides the fundamental protection-night and day-that a search of a home can be conducted only with the authority of a warrant issued on probable cause (with exceptions not here relevant), and even then it must be conducted reasonably.

The existence of a minimum constitutional protection, however, does not deny legislatures the power to provide additional, more nuanced protections, based on the wishes and habits of their constituents. Legislatures, unlike courts, are better able to evaluate the many factors involved. Indeed, Congress has done so in connection with nighttime searches generally, approving Federal Rule of Criminal Procedure 41(e), as have some States, see generally 2 Wayne R. LaFave, Search and Seizure § 4.7 (4th ed.2004). But legislatures are also free to make exceptions to such legislation, as Congress did in enacting 21 U.S.C. § 879. Both enactments-of Rule 41(e) and 21 U.S.C. § 879-are within the scope of the government's police power and are not prohibited or compelled by the Fourth Amendment.
See also United States v. Dickerson, (10th Cir, 1999), search executed around 10pm:
Dickerson's argument that the search occurred after 10:00 p.m. and thereby violated Oklahoma law is without merit. First, the district court found that the search occurred prior to 10:00 p.m., and this finding is not clearly erroneous given the evidence presented at the suppression hearing. See Record IV, at 20-21 (indicating police arrived at 9:47 p.m. and secured Dickerson and the other individuals outside the house in less than a minute). In any event, “[i]t is ... well established in this circuit that ‘in federal prosecutions the test of reasonableness in relation to the Fourth Amendment ... must be determined by Federal law even though the police actions are those of state police officers.’ ” United States v. Le, 173 F.3d 1258, 1264 (10th Cir.1999) (quoting United States v. Miller, 452 F.2d 731, 733 (10th Cir.1971)). This is because “ ‘the exclusionary rule is only concerned with deterring [federal] Constitutional violations.’ ” Id. (quoting United States v. Wright, 16 F.3d 1429, 1437 (6th Cir.1994)). Thus, “the fact that the arrest, search, or seizure may have violated state law is irrelevant as long as the standards developed under the Federal Constitution were not offended.” Id. (citation omitted).
And United States v Keene 915 F2d 1164 (8th Cir., 1990), involving a search executed at 8:20pm:
Even if controlled substances were not at issue in this case, this search occurred in the daytime as defined by the federal rules. While § 879 does not define “day” or “night,” the Federal Rules of Criminal Procedure define “daytime” as “the hours from 6:00 a.m. to 10:00 p.m. according to local time.” Fed.R.Crim.P. 41(h) advisory committee's note. Keene argues that § 879 and Rule 41 do not necessarily apply to a fourth amendment analysis of the search because a search made pursuant to those rules may still be unconstitutional. The government argues correctly, however, that § 879 and Rule 41 have never been held to be unconstitutional. See Hanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1143, 14 L.Ed.2d 8 (1965) (Warren, C.J.) (“the court has been instructed to apply the Federal Rule, and can refuse to do so only if the Advisory Committee, this Court, and Congress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions”) (footnote omitted). We agree with the district court's decision to deny the motion to suppress because the warrant was executed in compliance with 21 U.S.C. § 879, and the 8:20 p.m. search was a “daytime” search under Rule 41.
12.7.2007 1:49am
fennel:
If this decision weren't review-proof, it would probably get reversed by the Supreme Court.

But I agree with the other commenters that the outcome isn't as novel as Orin thinks it is. There are several cases where the Supreme Court has imposed extra requirements on the state (beyond the basic requirements of a warrant and probable cause) when the manner of the search or seizure is especially intrusive or offensive. The knock and announce rule is one such example. Another two examples that come to mind: Tennessee v. Garner (imposing extra requirements on police officers before they "seize" suspects using deadly force), and Winston v. Lee (holding that the state must show a compelling need, among other things, before it can force a suspect to undergo dangerous surgery to remove a bullet lodged in his chest).

The Minnesota Supreme Court seems to think that nighttime searches fit in this category of searches or seizures that require something beyond probable cause and a warrant before they can be considered "reasonable" within the meaning of the 4th Amendment. And the court does a decent job of backing up this requirement with historical evidence of widespread aversion to nighttime searches.

The Minnesota Supreme Court might be wrong (especially if you're inclined to believe that the Constitution means what The Nine say it means), but the court isn't coming completely out of left field here, as Orin suggests.
12.7.2007 1:55am
Gaius Obvious (mail):
There were no powered lights in 1787. How would night-time searches been accomplished unless with candles, oil lamps, or lit rags on a stick? None very practical and all somewhat intrusive wouldn't you say? I'll bet night-time raids in 1787 were very rare creatures indeed.
12.7.2007 1:57am
OrinKerr:
Greg, fennel, I've added an update. Thanks for the helpful comments.
12.7.2007 2:01am
OrinKerr:
LaFave's treatise adds these cites:
United States ex rel. Boyance v. Myers, 398 F.2d 896 (3d Cir.1968), holding a state nighttime search violated the Fourth Amendment because no showing was made of any necessity to conduct the search before the following morning. See also State v. Lindner, 100 Idaho 37, 592 P.2d 852 (1979), stating: “The Fourth Amendment protects individual privacy, … and entry into an occupied dwelling in the middle of the night is clearly a greater invasion of privacy than entry executed during the daytime.”
Compare United States v. Searp, 586 F.2d 1117 (6th Cir.1978) (“The night search provisions, while not of constitutional stature, are ‘designed … to govern the conduct of federal officers,’ … and are ‘statutory conditions which explicate fundamental purposes of the Fourth Amendment’ ”); State v. Lewis, 107 Idaho 616, 691 P.2d 1231 (1984) (federal constitution does not require more rigorous showing of cause to justify execution of warrant at night); State v. Brock, 53 Or.App. 785, 633 P.2d 805 (1981), judgment aff'd, 294 Or. 15, 653 P.2d 543 (execution of warrant at night without judicial authorization is a “purely statutory” violation to which exclusionary rule not applicable).
Certainly seems like a certworthy issue of you can get over the AISG....
12.7.2007 2:10am
OrinKerr:
Oh, and in Myers the nighttime search was at 2:30 am; however, the warrant only specified a daytime search.
12.7.2007 2:11am
Greg (www):
I apologize for any snippiness that may have snuck in.

(a) while nighttime restrictions on warrants may have arisen later than K&A, they were well established by the time of founding.

(b) I just ordered a copy of Cuddihy - everyone should have a 1,700 page unpublished dissertation on the Fourth Amendment on their bookshelf. And at $41 it's a steal!

(c) Seems to me that a warrant for a nighttime search should be held to at least the same standard as a no-knock warrant - that it show a reason why nighttime search is required. Is the evidence going to be destroyed, is there a danger to the officers. The state concedes the warrant was defective in this regard. (As to whether the federal rule that 10pm is night - I'd remind you that the sun had been down for 5 hours when the police entered her house. It gets dark in northern Minnesota EARLY.)

The court appears to be deriving this from first principles of nightness, not recognizing common law authority. Why is 9:25 too late, and how much of a showing is required to execute a warrant at night, and where is the court getting any of this?

This post is getting long, so for the first part, I'll simply direct you to the section of the ruling entitled "Historic Aversion to Nighttime Searches" where they cite Maclin and Cuddihy and Lassan and John Adams and Davies and Blackstone. For the second part, I'd remind you that 5 hours after the sun sets would pretty much fit the bill in most people's minds. As for the third part, well, in the spirit of holding the snippiness to the absolute minimum, I'd direct you to read the decision again.

(d) Hudson seems quite distinguishable. The MN court did so in their opinion. (Although not as fully as they could have.) Look, for example, at the calculus that Scalia lays out in section III.B of his decision in Hudson. It seems that many of the dangers of suppressing K&A violations disappear when we're talking about nighttime warrants. First, what would have been different if the cops in Hudson had properly executed their warrant? 10 additional seconds. In this case? They would have executed the warrant the next day, during the daylight. So, there wouldn't be the flood of defendants that Scalia warned of. Regardless of how early it gets dark in Minnesota, it's much harder to argue that the police broke down your door at night instead of the day than it is to argue that they waited only 5 seconds instead of the requisite 15. Second, the danger increases if suppression is had for K&A violations - police wait an extra 30 seconds, allowing the perp to get their bearings. By contrast, if the police are incented to serve their warrants during the day, they're actually safer. Plus, upholding nighttime restrictions vindicates an additional interest not at stake in Hudson, that of the nighttime repose (if it, in fact, exists).
12.7.2007 2:32am
David M. Nieporent (www):
Seems to me that a warrant for a nighttime search should be held to at least the same standard as a no-knock warrant - that it show a reason why nighttime search is required.
Of course, this is one of the debates that's more fun for academics than useful in real life. If the courts announce a standard such as the one you propose, we all know that the warrants will just end up with boilerplate language about drugs and how waiting can lead to the destruction of evidence and the safety of the officers in drug cases requires them to surprise the residents at night. Look at the language Orin quoted above, in U.S. v. Keene:
Even if controlled substances were not at issue in this case, this search occurred in the daytime as defined by the federal rules.
Note the court treating it as obvious that if drugs are involved, the rules are different.
12.7.2007 4:42am
Adam J:
Nieporent - I thought there was a case out there that said boilerplate wouldn't get it done, that there needs to be specific and articulable facts for no-knock warrants, I would think that nighttime warrants would require the same. Plus Richards v. Wisconsin prevents a blanket exception on no-knocks for drugs. Presumably nighttime warrants would have similar standards as no-knocks.
12.7.2007 10:12am
pete (mail) (www):
"(As to whether the federal rule that 10pm is night - I'd remind you that the sun had been down for 5 hours when the police entered her house. It gets dark in northern Minnesota EARLY.)"

So if you are in northern Alaska they can not serve warrants at all on the winter solstice and any time they feel like it in the summer solstice?
12.7.2007 11:03am
Greg (www):
they can not serve warrants at all

Even in Minnesota, they can serve warrants at night.
12.7.2007 11:49am
cjwynes (mail):
Thank goodness there's nobody on the U.S. Supreme Court today as far-out as Marshall, Brennan or Douglas! I don't even think Stevens or Breyer would go along with this.

Every time some wacky 4th amendment decision gets handed down somewhere, I again question the wisdom of the exclusionary rule. It just seems like swatting a fly with a really expensive 20-pound hammer. Because the cops entered the home at 9:30pm, while the occupants were sitting at the dinner table, throw out the evidence and let a guilty party walk away scot free? I doubt the citizens of Minnesota really want to pay that kind of price for the "right" to have their house ransacked while the sun is shining instead of the moon. Should 3rd shift workers and self-proclaimed vampires get s rule prohibiting searches during daylight?

I think it's high time the exclusionary rule (as regarding most 4th amendment violations) went the way of the dodo, and things like this were remedied through 1983 actions.
12.7.2007 12:04pm
Ken Arromdee:
Because the cops entered the home at 9:30pm, while the occupants were sitting at the dinner table, throw out the evidence and let a guilty party walk away scot free?

The point of the exclusionary rule isn't to protect guilty parties like this, it's to protect the innocent people who'll also get searched unreasonably, since the police won't actually know the party is guilty before doing the search.
12.7.2007 12:40pm
Sebastian Holsclaw (mail):
"(As to whether the federal rule that 10pm is night - I'd remind you that the sun had been down for 5 hours when the police entered her house. It gets dark in northern Minnesota EARLY.)"

I don't see how long the sun has been down is relevant to an allegedly Constitutional right based on the idea that people might be quietly sleeping. Can we argue that Alaska in the wintertime has only two hours where normal searches can take place? That in the summer, the police are ok to go at 2am just because the sun is up? Even if you accept the idea proposed by the court (and I'm very amenable to the idea that the police shouldn't go waking people up in the middle of the night) 9:30 pm is not such a time.
12.7.2007 12:48pm
cjwynes (mail):
Ken,

If they're executing a search warrant, then they already have specific facts giving rise to probable cause to believe there is either contraband or evidence of a crime inside the residence. So in the overwhelming majority of searches, we're not talking about innocent people here. Of course, a criminal may have stashed drugs or a bloody knife in somebody's house unbeknownst to the occupants, who now must endure an intrusion into their home, and if that's the case the police should use their discretion to be a little more considerate when possible. I think that local police departments and state legislatures can work together to balance the interests at stake. Applying the extraordinary remedy of excluding evidence is totally unnecessary.
12.7.2007 12:50pm
Adam J:
cjwynes - If you want to knock out the exclusionary rule, you need to offer an alternative method of protecting our constitutional rights from police officers.
12.7.2007 12:56pm
hattio1:
I don't think the sun sets quite that early (4:30 PM) in Minnesota. I live in AK, much further north, and the sun only sets around 4:30 here in the middle of winter. Of course, we're quite a ways off of solar noon, and they might be closer.

cjwynes;
Are you also proposing laws that would actually make 1983 actions viable? As it stands now, its almost impossible to be successful on a 1983 action unless the police were so unreasonable that a responsible police officer wouldn't conceive of doing the action. If you do away with the exclusionary rule, you do away with the incentive for officers to obey the law. Then, once violations become common-place, they will be what responsible police officers do.
12.7.2007 12:59pm
PLR:
I just like Justice Jackson's reference to a "zone of twilight."
12.7.2007 1:00pm
hattio1:
Professor Kerr,
This is off-topic, but can you provide cites to the consent once removed cases.
12.7.2007 1:02pm
Greg (www):
I don't think the sun sets quite that early (4:30 PM) in Minnesota. I live in AK, much further north, and the sun only sets around 4:30 here in the middle of winter.

The search was conducted on December 11, 2006 (apparently) in Itasca County. I went to this site to determine the time of sunset for December 11, 2006 in Grand Rapids (the county seat of Itasca County). According to it, sunset is at 4:24pm and the end of civil twilight is 4:59.
12.7.2007 1:09pm
tdsj:
The Rizzi opinion doesn't seem terribly persuasive to me. Sure it's true that some people will actually experience nighttime searches as less intrusive than daytime searches -- like people who work at night and sleep in the day. But you could say that about just about any area of Fourth Amendment law where we've identified a reasonable expectation of privacy, couldn't you?

It doesn't seem outlandish to me -- as a matter of text, or history, or doctrine -- to say that a search at 3 AM is less reasonable than a search at 3 PM, and that the difference is one with some constitutional implications.

Admittedly, I'm not sure how to turn that intuition into any sort of a workable doctrine. I'm not sure whether the exclusionary rule should apply (though, as Greg says, there are certainly strong reasons for distinguishing Hudson). And at bottom, I'm not sure the outcome is right.

But I don't think the idea or the court's reasoning is as weak as Orin suggested.

Ted
12.7.2007 1:18pm
tdsj:
BTW, today in Minneapolis, the sun sets at 4:31. Trust me. The only upside is that I can turn on my Christmas lights mid-afternoon.
12.7.2007 1:25pm
cjwynes (mail):
For the people who seem to think the exclusionary rule is the only way to prevent police from violating the 4th Amendment, I would say that the Hudson opinion laid out good alternatives. In addition to the threat of 1983 actions, there would likely be police rules and regulations against certain conduct that violated the rights of citizens. And of course the state legislatures are free to craft any set of rules and corresponding remedies they like.

I'm not attacking ALL rules that may require evidence suppression. For instance, I would never suggest that involuntary confessions be allowed into evidence, and that prohibition has a long pedigree dating back to before the founding of our country. The exclusionary rule is an extraordinary remedy with enormous social costs, yet it is rooted in no such tradition, and it has as little basis in our constitution as does the idea of saying a list of magic words to satisfy Miranda.

Besides, where does this assumption come from that police are just chomping at the bit to trample all over the rights of innocent citizens and would get away with it if it weren't for the exclusionary rule? They don't have the exclusionary rule in Europe, and I'm not aware of Sweden having become a police state.
12.7.2007 3:00pm
Durendale (mail):
1. Our dual-sovereignty system is designed so that states can be out of step with the federal constitution. They have the right to be.

2. Minnesota may be one of the first states to decide a nighttime search is unconstitutional under the state constitution, but it is not alone in being concerned about it. There are scores of cases, at least, in Arkansas. Ark. R. Crim. Proc. 13.2(c):

Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:

(i) the place to be searched is difficult of speedy access; or

(ii) the objects to be seized are in danger of imminent removal; or

(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;

the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.

3. For a good backgrounder on the issue, try this student article: Morris, Fouse V. State: The Arkansas Nighttime Search Rule - Helping Make Arkansas the Country's Number One Producer of Methamphetamine, 53 Ark. L. Rev. 965 (2000).
12.7.2007 3:14pm
Durendale (mail):
I forget one part of my above comment, which (in part) was trying to take issue with the idea that an adequate and independent state ground would "interfere" with Supreme Court review.

It's not interference for a state court to ground its decision on its state constitution; it is faithfulness to the dual-sovereignty relationship between the federal government and the several states.

It doesn't look like the court in this case resorted to the Minnesota constitution, though, by "mak[ing] clear by a plain statement" that the decision was Minnesota constitutional law.

"[W]hen . . . a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached." Michigan v. Long, 463 U.S. 1032, 1040-1041 (1983).
12.7.2007 3:30pm
Oren:

Besides, where does this assumption come from that police are just chomping at the bit to trample all over the rights of innocent citizens and would get away with it if it weren't for the exclusionary rule?


Of course they aren't. They are merely attempting to catch as many criminals as possible and often chose to do so in a way that imposes significant costs on innocent civilians as a byproduct. Drug/DUI checkpoints are a prime example: the police are not 'chomping at the bit' to illegally seize motorists, they are attempting to catch criminals but inadvertently violating civil rights.

One need not imply bad intentions on the part of police in order to condemn some of their more zealous techniques.
12.7.2007 4:40pm
Greg (www):
<i>I would say that the Hudson opinion laid out good alternatives.</i>

Hudson laid out alternatives, but as the dissent pointed out, despite the examples of knock and announce violations being legion, no one could find a single example of any of the alternatives Scalia presented having been used.
12.7.2007 5:37pm
Adam J:
cjwynes - I too am not a fan of the exclusionary rule. I think it's pretty riduculous that when an innocent person's civil rights are violated they don't get any compensation but when a guilty persons rights are violated they get a get-out-of-jail-free card. It strikes me as quite unfair, and a rather high cost for our civil rights. BUT I do recognize that rule can be a significant deterent on police violating civil rights. If you don't think that the rights of innocent people are violated by some police in their desire to make arrests I dare say you are being a bit naive.
So I think it's a poor idea to start claiming we should rid ourselves of the exclusionary rule without recognizing that we need some method of protecting our civil rights from the state.
12.7.2007 5:40pm
Adam J:
cjwynes - Also, I can't say much about your remarks about Sweden, since you haven't mentioned how their civil rights are enforced (or for that matter what their civil rights are), and I have no idea myself what they are. However, I do know that Sweden isn't burdened with a heterogenous nation where many different cultures collide, and so does not have the same crime or criminal enforcement problems, so perhaps police are less apt to violate their citizens rights because they can relate better to them.

Also, I find it fascinating that you're making a comparative law argument at the same time as your making a originalism argument ("The exclusionary rule is ... rooted in no such tradition, and it has .. little basis in our constitution ..."). Not much consistency to your argument there.
12.7.2007 6:18pm
David M. Nieporent (www):
Nieporent - I thought there was a case out there that said boilerplate wouldn't get it done, that there needs to be specific and articulable facts for no-knock warrants, I would think that nighttime warrants would require the same. Plus Richards v. Wisconsin prevents a blanket exception on no-knocks for drugs. Presumably nighttime warrants would have similar standards as no-knocks.
Richards prevents a blanket exception in that the police can't just say, "This warrant involves drugs, so we're not going to knock," and the court can't just say after the fact, "It involved drugs, so you didn't need to knock." (In Richards, the magistrate had explicitly denied them a no-knock.) But look at what actually happened in Richards: the court went right ahead and decided that their not-knocking was reasonable.

All that Richards really stands for is the proposition that everyone has to go through a kabuki dance where they recite a few boilerplate facts related to drugs and pretend that those facts are "specific," instead of just saying "drugs." In the end, see how often a judge is going to deny an application for a no-knock warrant in a drug case.

(To quote Richards: "In order to justify a "no knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Can you imagine "particular circumstances" involving drugs where they won't have such a "reasonable suspicion"? Remember, it doesn't even have to be right; it just has to be reasonable.)
12.8.2007 6:13am
David M (mail) (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 12/08/2007 A short recon of what’s out there that might draw your attention updated throughout the day…so check back often.
12.8.2007 11:19am