{"id":1595,"date":"2008-01-17T15:59:43","date_gmt":"2007-12-09T10:43:44","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-12-09T10:43:44","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1595","title":{"rendered":"MN: Invalid nighttime entry authorization required suppression because the house was occupied, even if defendant was not there"},"content":{"rendered":"

The entry by deputy sheriffs into defendant’s occupied home on December 11 at approximately 6 a.m., when it was still dark, to execute a search warrant with an invalid nighttime authorization, and with no knowledge that defendant or his house guests were not still in a period of nighttime repose that Minn. Stat. \u00a7 626.14 protects, subverts the purpose of the statute and requires suppression of the evidence seized during the search even though the defendant was not personally present. It also violates the Fourth Amendment. State v. Jordan<\/a>, 742 N.W.2d 149 (Minn. 2007):<\/p>\n

To the degree that a nighttime search under a warrant with an invalid nighttime clause can be compared to a warrantless search or the seizure of an item not adequately described in a warrant, these cases support the conclusion that the search of Jordan’s home violated his reasonable expectation of privacy. At the very least, these cases presume that the scope of the defendant’s expectation of privacy is broader than merely the risk of the intrusion on his person.<\/p><\/blockquote>\n

Comment:<\/em> This case is important because it applies the Fourth Amendment to an invalid nighttime search, finding that a person has a reasonable expectation of privacy against unwarranted nighttime searches.<\/p>\n

The 41 page affidavit for the search warrant in this case was sufficient to show probable cause for issuance of the warrant, and it was summarized ad nauseum in the opinion. Under Gates<\/em><\/a>, de novo review of the affidavit is not permitted. United States v. Redzic, 2007 U.S. Dist. LEXIS 89961 (E.D. Mo. December 6, 2007):<\/p>\n

The court could continue reviewing the affidavit, which is replete with information supporting probable cause, but this section of this Report and Recommendation is already too long, the parties have the affidavit and information already provided in this section of this report show probable cause for the issuance of the search warrants.<\/p>\n

This court finds that the information supplied in the affidavit to Judge David D. Noce provided “a fair probability that contraband or evidence of crime [would] be found in a particular place.” Gates<\/em>, 462 U.S. at 238, 103 S.Ct. at 2332. Consequently, this court finds that the search warrants in question were issued based on probable cause.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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