D.Nev.: Good cause shown for execution of SW at night because of neighborhood children

The government showed good cause for execution of a search warrant at night because of defendant’s house’s proximity to a school on break that would likely have kids around in the day in case the raid became violent. In any event, suppression is not the remedy for violation of the nighttime search requirement. United States v. Payan, 2017 U.S. Dist. LEXIS 212717 (D. Nev. Aug. 15, 2017), adopted, 2017 U.S. Dist. LEXIS 211994 (D. Nev. Dec. 27, 2017):

Federal Rule of Criminal Procedure 41(e)(2)(A)(ii) states, in relevant part, that a search warrant must command the law enforcement officer to “execute the warrant during the daytime, unless the judge for good cause expressly authorizes execution at another time[.] “‘Daytime’ means the hours between 6:00 a.m. and 10:00 p.m. according to local time.” Fed.R.Crim.P. 41(a)(2)(B).

The Ninth Circuit has stated that, unless a clear constitutional violation occurs, failure to comply with Rule 41 “requires suppression of evidence only where, (1) there was ‘prejudice’ in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.” United States v. Stefanson, 648 F.2d 1231, 1235 (9th Cir. 1981) (internal citation and quotation marks omitted). See also United States v. Ritter, 752 F.2d 435, 441 (9th Cir. 1985) (“the settled rule in the Ninth Circuit is that a purely technical violation of Rule 41 does not require the suppression of evidence otherwise legally obtained”).”[A]lthough the procedural steps enumerated in Rule 41(d) are important and should not be disregarded, they are ministerial and ‘[a]bsent a showing of prejudice, irregularities in these procedures do not void an otherwise valid search.”‘ Frisby v. United States, 79 F.3d 29, 32 (6th Cir. 1996) (quoting United States v. McKenzie, 446 F.2d 949, 954 (6th Cir.1971)).

The Court rejects Defendant’s argument that a nighttime clause can be approved only for exigent circumstances, as the plain language of the rule states that the issuing judge must find that good cause exists for the clause. Fed.R.Crim.P. 41(e)(2)(A)(ii). Additionally, the case that Defendant cites for that proposition cites the rule as requiring reasonable cause for a nighttime clause and states that the rule “has been interpreted to require both specific authorization for an intrusive nighttime search, and that sufficient facts in the affidavit must support” the magistrate judge’s authorization.” Stefanson, 648 F.2d at 1237. Further, the Court finds that Officer Fellig’s statements in the affidavit regarding the presence of innocent children near Defendant’s residence, the elementary school less than half a mile away, the reasonable belief that children would use the elementary school’s property during winter break, and his desire not to endanger such innocent children constitutes good cause for the issuance of a nighttime search clause. Accordingly, whether the search actually occurred at night or not is not relevant.

In any event, even if the Court found that good cause did not exist for the issuance of the nighttime clause, the remedy is not suppression. The Court has already found that probable cause exists for the issuance of the search warrant, thus the search was valid. Further, Defendant has not even attempted to demonstrate any sort of prejudice, much less the type required by the caselaw, resulting from the nighttime clause and the possible nighttime search. Therefore, exclusion of the evidence is not appropriate. See Stefanson, 648 F.2d at 1235; United States v. Searp, 586 F.2d 1117, 1125 (6th Cir. 1978).

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