CA3: Nighttime search without specific authority of warrant would be a Fourth Amendment violation

A SWAT team entered a house in Wilmington DE with a warrant looking for suspected murderer “Dwayne A. Walker,” but entered the house of younger “Dewayne Walker Jr.” instead. The entry before 6 a.m. lasted about 20 minutes when the police realized they were sent to the wrong house and then excused themselves. The court finds triable issues of a Franks and a nighttime search violation. Walker v. City of Wilmington, 360 Fed. Appx. 305 (3d Cir. 2010) (unpublished):

It is in this context that a jury could find that Lawson made his representation to the magistrate: “a past proven reliable informant … stated [that] Walker is currently hiding at his mother’s house in New Castle and is making plans to flee Delaware.” App. at A115. We conclude that this representation regarding the whereabouts of Dwayne A. Walker was not only inaccurate but could be found by a jury to be knowingly false or made in reckless disregard of the truth.

In this case, the police, in addition to seeking evidence of a crime, were attempting to arrest a murder suspect. Murder is, of course, a very serious crime that makes it objectively reasonable for the police to deem the suspect potentially dangerous. Thus, it appears that the District Court’s conclusion that having a large, armed SWAT team and a K-9 Unit present was not unreasonable is correct. Additionally, the SWAT team gathered and confined Plaintiffs in the living room, and as soon as the police realized that they were in the wrong place, they explained the situation and left the premises. Under the circumstances at the time, this conduct was not objectively unreasonable and provides no independent basis for holding the search and seizure to be constitutionally unreasonable.

The nighttime search issue is significant. The warrant authorized a daytime entry, but there was a fact dispute whether the entry was before 6 a.m., and, thus, a nighttime search:

We were confronted with a similar situation in United States ex rel. Boyance v. Myers, 398 F.2d 896 (3d Cir. 1968). We ruled as follows:

The time of a police search of an occupied family home may be a significant factor in determining whether, in a Fourth Amendment sense, the search is “unreasonable.” At common law, prior to the adoption of the Fourth Amendment, there was a strong aversion to nighttime searches. Even the odious “writs of assistance” which outraged colonial America permitted search of dwellings only in the daytime. The significance of this aversion of the common law to nighttime searches is underscored by the Supreme Court’s reminder that the search and seizure clause is properly “construed in the light of what was deemed an unreasonable search and seizure when it was adopted.” Carroll v. United States, 1925, 267 U.S. 132, 149, 45 S. Ct. 280, 284, 69 L. Ed. 543, T.D. 3686.

During the early years of the republic this common-law tradition was embodied in two statutes passed by our first Congress that authorized only daytime searches. Thereafter, the reluctance to authorize nighttime searches except under exceptional circumstances continued as an integral part of our jurisprudence.

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Here it is claimed that the search, though made late at night, was reasonable because authorized by a warrant issued by a magistrate … However, the issue whether the search was in fact authorized by the warrant is determinable by a reading of the warrant’s simple and unambiguous language. To find that a warrant which is explictly limited to daytime searches legalizes search at any hour of the day or night would be to disregard the magistrate’s actual determination and thus to nullify the requirement of a prior impartial determination that a particular search will be reasonable. “When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman, or Government enforcement agent.” Johnson v. United States, 1948, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436.