ND: A nighttime drug sale alone does not justify a nighttime search warrant

A nighttime search requires a separate showing of probable cause for that, and, here, a few sales of drugs at night isn’t sufficient. State v. Zeller, 2014 ND 65, 2014 N.D. LEXIS 63 (April 3, 2014):

[¶11] 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. Id. at ¶ 10. “An officer must set forth some facts for believing the evidence will be destroyed other than its mere existence. Mere allegations about the presence of drugs do not lead to the inference that the drugs are easily disposable.” Roth, 2007 ND 112, ¶ 21, 735 N.W.2d 882 (citations omitted). “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.” Id. at ¶ 23. We have also stated, “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.” Holly, 2013 ND 94, ¶ 36, 833 N.W.2d 15. “[T]here must be some basis for believing the evidence will be destroyed without a nighttime search other than the fact the evidence exists.” State v. Torkelsen, 2008 ND 141, ¶ 32, 752 N.W.2d 640. In Fields this Court held, “To the extent our prior decisions approved a per-se rule justifying the issuance of nighttime warrants in drug cases, they are overruled.” Fields, 2005 ND 15, ¶ 10, 691 N.W.2d 233.

[¶12] In the affidavit in support of the search warrant application, Detective Witte included a special request for nighttime service authorization “to allow officers the ability to get closer to the residence before being detected under the cover of darkness.” The affidavit stated, “entry of law enforcement in this manner will be safer to those inside as well as the law enforcement officers executing the search warrant.” Detective Witte further averred, “this methamphetamine transaction occurred between the hours of 10 p.m. and 11 p.m. and the investigation is ongoing. Your Affiant notes this information was developed in the late hours of November 16th and early morning hours of November 17, 2012.”

[¶13] At the suppression hearing, Detective Witte testified on cross-examination that a nighttime provision does not provide any more safety than a daytime warrant. The detective also testified part of the reason for the nighttime provision is that the evidence might be lost by the morning, and that depending on the circumstances, a nighttime search can be more dangerous. …

[¶14] Applying these facts, we conclude there is nothing in the record, beyond the single incident of the controlled buy, to indicate that without the nighttime search, the evidence would have been destroyed or removed from the premises before a search could be executed in the morning hours. Detective Witte admitted at the suppression hearing, “I had no information related to Mr. Zeller . . . specifically that showed exigent circumstances where he would destroy evidence.” Specifically, there was no information in the affidavit to suggest Zeller was likely to destroy evidence, or any other exigent circumstances to suggest the controlled buy money and the narcotics would be removed or disposed of before 6:00 a.m. Similarly, the record here does not establish that officer safety necessitated execution of the nighttime search warrant.

[¶15] Additionally, the facts do not suggest that the controlled buy conducted in the vicinity of the Zeller residence was part of an ongoing trafficking operation where drugs were moved, traded, bought, or sold during the nighttime hours. Had there been evidence of previous drug deals taking place during the night, visitors coming and going at all hours, or similar information relaying evidence of trafficking during the nighttime hours, this evidence may have manifested a reasonable possibility that the fruits, instrumentalities or evidence of the alleged crime might have dissipated if the search was delayed. Here, however, officers left Zeller’s residence after conducting the controlled buy and did not conduct any surveillance on the Zeller residence from approximately midnight until 4:00 a.m. when the warrant was executed. Without surveillance, there is no indication that the targeted contraband was being bought and sold, or disappearing from the scene. In isolation, the controlled buy alone does not suggest continued trafficking during the night, and the affidavit did not indicate whether police had evidence of ongoing nocturnal drug transactions. Consequently, because there was no evidence of ongoing criminality, there is no basis for believing that the drugs would evanesce before the daylight search hours.