The Volokh Conspiracy - 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).

	[Orin Kerr, December 6, 2007 at 6:42pm] Trackbacks 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).