D.Minn.: This nighttime search was reasonable and not overly intrusive

Nighttime searches can be overly intrusive, but, on balance, this one was not unreasonable. United States v. Jerome, 2021 U.S. Dist. LEXIS 148848 (D.Minn. Aug. 9, 2021):

A nighttime search was justified, even after officers took Jerome into custody. In applying for the search warrant, Officer Brandon Larson included the prevention of destruction of evidence and protection of officers and the public as reasons for the nighttime search. (Gov’t Ex. A at 193-94.) After considering these concerns, a state court judge approved the nighttime search. (Id. at 197.) Though these justifications may have been less compelling after Jerome was arrested, the arrest did not completely negate them. Jerome would not have been able to destroy evidence in his apartment after he was arrested, but his associates may have had access to his apartment and the ability to destroy evidence located within it. (ECF No. 44 (“Hr’g Tr.”) at 38:9-15.) Additionally, when the officers arrested Jerome, they did not recover the rifle used in the offense. (Id. at 37:16-18; 37:23-38:4.) The gun could have been in Jerome’s apartment, possibly along with other people who had access to it. In these circumstances, a nighttime entry into the apartment would better protect the safety of the officers. Thus, even though Jerome was in custody, the searching officers still had a justification for the nighttime search.

The intrusiveness of the search, by contrast, was minimal. Jerome was not present in the apartment when the officers executed the search warrant, nor is there any indication that anyone else was present. A nighttime search “can be particularly intrusive,” United States v. Ferguson, 35 F. App’x 282, 283 (8th Cir. 2002), such as when it is conducted without a warrant, Jones v. United States, 357 U.S. 493, 498 (1958), but the officers had a warrant to conduct a nighttime search of Jerome’s apartment, and the record does not otherwise suggest that this search was especially intrusive.

Because the justification for a nighttime search outweighs the intrusiveness of that search, the search was reasonable and did not violate the Fourth Amendment. See United States v. Kelley, 652 F.3d 915, 918 (8th Cir. 2011) (holding that there was no Fourth Amendment violation when officers executed a warrant permitting a nighttime search).

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