The state violated the nighttime search rule by executing this search warrant at 10:18 pm rather than before 10 pm, but the officers claimed not to know the exact time. There was no showing in the search warrant papers for a nighttime search. In any event, when they arrived, the occupants were fully clothed, awake, and up and about the house, and there was no prejudice to them. Essentially, the court finds that the good faith exception applies as well. State v. Deen, 2015 WY 5, 2015 Wyo. LEXIS 6 (January 8, 2015):
[*P15] No showing of reasonable cause was made for searching Mr. Deen’s residence after 10 p.m. However, when law enforcement entered the residence there was a lamp on in the living room, a fully clothed female came into the room from the hallway and a male, also fully clothed, came out of the first bedroom. Mr. Deen and a third male were also fully clothed. This was not a situation where law enforcement entered a private dwelling late at night when the occupants were asleep in their beds.
[*P16] Additionally, Investigator Hipsag testified that if he had realized it was after 10 p.m., he probably would have contacted the judge again and tried to obtain an endorsement allowing execution of the search warrant after 10 p.m. Otherwise, he testified, he most likely would have secured the residence by posting law enforcement outside and waited until 6 a.m. to execute the warrant. One way or the other a search was going to happen in the next eight hours.
[*P17] Given these facts, we conclude that Mr. Deen was not prejudiced by service of the search warrant at just after 10:18 p.m. The occupants of the residence were awake when law enforcement arrived. The search was going to occur either that night with a nighttime endorsement or early the next morning without an endorsement. In the latter event, a search in compliance with Rule 4(c) at 6 a.m. when the occupants might well have been asleep would have been more abrasive than the 10:18 search when they were awake. Under the first part of the test this Court adopted in Murray, 855 P.2d at 355, there was no prejudice “in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed.”
[*P18] There also was no evidence of intentional and deliberate disregard of Rule 4(c). Investigator Hipsag testified that at the time of the search he did not realize it was after 10 p.m. He did not discover it was after 10 p.m. until two days later when he looked at the radio log. He testified that it was “absolutely not” a willful violation of the 10 p.m. to 6 a.m. rule; it was an “oversight.” He also testified that had he realized it was after 10 p.m., he would not have executed the warrant. The district court expressly found credible the testimony that there was no intent on the part of law enforcement to serve the warrant outside the warrant’s time limitations. Under the second part of the Murray test, there was no evidence of an intentional and deliberate disregard of the rule supporting a determination that Mr. Deen was prejudiced by execution of the search warrant just after 10:18 p.m. Because Mr. Deen was not prejudiced, exclusion of the evidence seized in the search was not warranted. Murray, 855 P.2d at 355.