Executing a daytime warrant at night violated clearly established law and was unreasonable and a violation of the Fourth Amendment. Jones v. Kirchner, 2016 U.S. App. LEXIS 15759 (D.C.Cir. Aug. 26, 2016). This warrant provided:
YOU ARE HEREBY COMMANDED to search … the … place named above … serving this warrant and making the search (in the daytime — 6:00 A.M. to 10:00 P.M.)
(at any time in the day or night as I find reasonable cause has been established).
The district court erred in holding there was no constitutional violation. Jones does not allege the timing of the search was unlawful merely because it took place at night; he alleges it was unlawful because it violated an express limitation on the face of the warrant.
The Fourth Amendment “guarantees … the absolute right to be free from unreasonable searches and seizures.” Bivens, 403 U.S. at 392. The search of a home is presumptively unreasonable unless authorized by a warrant, Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006), which must be issued by a neutral judicial officer, see Johnson v. United States, 333 U.S. 10, 13-14 (1948). Unlike rules of criminal procedure and other sub-constitutional bodies of law, violations of which may be unlawful but are not necessarily unconstitutional, see Virginia v. Moore, 553 U.S. 164, 176 (2008) (“[W]hile States are free to regulate … arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections”), compliance with the limitations of a warrant is required by the Constitution itself, Bivens, 403 U.S. at 394-95 n.7 (“[T]he Fourth Amendment confines an officer executing a search warrant strictly within the bounds set by the warrant”).
In this case the magistrate, as clearly indicated on the face of the warrant, affirmatively denied the Defendants permission to search Jones’s house before 6:00 AM. The plaintiff alleges the Defendants nonetheless executed the warrant at 4:45 AM. Just as a warrant is “dead,” and a search undertaken pursuant to that warrant invalid, after the expiration date on the warrant, Sgro v. United States, 287 U.S. 206, 212 (1932), a warrant is not yet alive, and a search is likewise invalid, if executed before the time authorized in the warrant. If the Defendants executed the warrant when the magistrate said they could not, then they exceeded the authorization of the warrant and, accordingly, violated the Fourth Amendment.
. . .
In holding the alleged nighttime entry violated the Fourth Amendment, we reject the Defendants’ argument that 21 U.S.C. § 879 overrode the time restrictions imposed by the magistrate. That statute, which governs searches for evidence of drug crimes, provides that a warrant “may be served at any time of the day or night if the judge or United States magistrate judge issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time.” Unlike Federal Rule of Criminal Procedure 41, which governs most searches and requires an officer to demonstrate “good cause” before a magistrate can authorize a nighttime search, § 879 “requires no special showing for a nighttime search” beyond probable cause for the warrant itself. Gooding v. United States, 416 U.S. 430, 458 (1974). Although this and other courts have held a warrant issued pursuant to § 879 that is silent as to time may permissibly be executed at night, see, e.g., United States v. Burch, 156 F.3d 1315, 1325 (D.C. Cir. 1998), nothing in the text of § 879 suggests it limits a magistrate’s discretion to place restrictions upon a search.
Indeed, a statute purporting to restrict the power of a court to define the limits of a reasonable search would raise a serious constitutional question. Cf. Dickerson v. United States, 530 U.S. 428, 437 (2000) (“Congress may not legislatively supersede our decisions interpreting and applying the Constitution”). We need not resolve that question here, however, because regardless whether the magistrate should have permitted a nighttime search in this case, he did not. The warrant requirement “provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime.” United States v. Leon, 468 U.S. 897, 913-14 (1984) (internal quotations omitted). If the executing officers believed the daytime-only limitation was an improvident limitation or, as in United States v. Katoa, 379 F.3d 1203 (10th Cir. 2004), a mere drafting error, then they had other options, including telephoning the magistrate to authorize nighttime service, as the officers did in Katoa. See also United States v. Voustianiouk, 685 F.3d 206, 216 (2d Cir. 2012) (explaining that a search of a second-floor apartment violated the Fourth Amendment where the warrant authorized a search of the first-floor apartment only and the officers “could have called a magistrate judge on the telephone” on the morning of the search after discovering the suspect resided on the second floor). Simply ignoring the timing limitation was not among the choices lawfully available to the officers in this case.
