E.D.Mich.: Federal nighttime search sustained

Federal nighttime search sustained based on a reasonable belief the drugs were being moved “that evening” [although the search was at 1:15 am]. 21 U.S.C. § 879 prevails over Rule 41 on nighttime searches. United States v. Thompson, 2013 U.S. Dist. LEXIS 98895 (E.D. Mich. July 16, 2013):

Defendant Thompson also complains of another violation—that the warrant was executed at 1:15 a.m. Rule 41 requires that searches be conducted during the daytime. However, 21 U.S.C. § 879 permits the execution of search warrants involving controlled substances “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.” In Gooding v. United States, 416 U.S. 430, 94 S. Ct. 1780, 40 L. Ed. 2d 250 (1974), the United States Supreme Court held that the provisions of § 879 prevail over Rule 41. The Court further held that § 879 does not require a separate showing of probable cause to justify a nighttime search. Id. at 458. What is required is a showing that the property or contraband will be found on the premises at that time.

In this case justification for a nighttime search was demonstrated in ¶ 22 of the affidavit which states, “The CS reported that he/she learned at this time that it was the intention of JACKSON and his associates to make efforts to move the drugs that same evening.”

Ultimately, there is no showing in this case that the affidavit in support of the search warrant was a “bare bones” affidavit. There is no showing that the officers and agents presented false or misleading information or engaged in a reckless disregard for the truth when presenting the affidavit to the state court judge. Most importantly, there is no showing that the officers’ and agents’ reliance on the warrant was unreasonable.