Defendant won his search issue on the state law nighttime search law when being prosecuted for child sexual abuse; Kelley v. State, 371 Ark. 599, 269 S.W.3d 326 (2007); but lost in federal court in his child porn case because there is no separate federal nighttime search rule. [He was convicted on retrial and affirmed. Kelley v. State, 2009 Ark. 389, 2009 WL 1819336 (2009).] Moreover, defendant was not present at the time of the search, so he could not be prejudiced by the nighttime entry. Finally, the good faith exception sustains the search. United States v. Kelley, 670 F. Supp. 2d 943 (E.D. Ark. 2009):<\/p>\n
Case law is sparse as to precisely what the Fourth Amendment requires be stated in an application for a warrant for a nighttime search. 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT \u00a7 4.7 (4th ed. 2004). The rationale for heightened scrutiny of nighttime searches was stated by Justice Marshall:<\/p>\n
In my view, there is no expectation of privacy more reasonable and more demanding of constitutional protection than our right to expect that we will be let alone in the privacy of our homes during the night. The idea of the police unnecessarily forcing their way into the homes in the middle of the night–frequently, in narcotics cases, without knocking and announcing their purpose–rousing the residents out of their beds, and forcing them to stand by in indignity in their night clothes while the police rummage through their belongings does indeed smack of a “police state’ lacking in the respect for … the right of privacy dictated by the U.S. Constitution.’ S. Rep. No. 91-538, p. 12 (1969).<\/p><\/blockquote>\n
Gooding v. United States<\/a>, 416 U.S. 430, 462, 94 S. Ct. 1780, 1796, 40 L. Ed. 2d 250 (1974) (Marshall, J., dissenting). Here, no one was home when the search warrant was executed. No one was disturbed in the middle of the night. To the extent that Kelley’s privacy was invaded by the search, that intrusion was no greater than if the warrant had been executed during daylight hours.<\/p>\n
When a search is governed by Rule 41 of the Federal Rules of Criminal Procedure, the exclusionary rule applies only if the defendant is prejudiced in the sense that the search might not have occurred or would not have been so abrasive had proper procedures been followed, or if reckless disregard of proper procedure is evident. United States v. Harris, 324 F.3d 602, 606 (8th Cir. 2003); United States v. Berry, 113 F.3d 121, 123 (8th Cir. 1997); United States v. Bieri, 21 F.3d 811, 816 (8th Cir. 1994); United States v. Burgard, 551 F.2d 190, 193 (8th Cir. 1977); United States v. Burke, 517 F.2d 377, 386-87 (8th Cir. 1975). Although Rule 41 does not apply to this case, the Court will be guided by the Eighth Circuit cases addressing the issue of whether to apply the exclusionary rule when Rule 41 has been violated.<\/p><\/blockquote>\n
[Note: I wrote here a couple of years ago that I lost this same issue in the Eighth Circuit. Clear violation of nighttime search rule, motion to suppress filed, case nolle prossed, client promptly indicted federally.]<\/p>\n
U.S. Park Police who observed empty beer bottles around a car had PC to believe the operator violated 36 C.F.R. \u00a7 4.14(b). Further examination revealed a cigar box with one missing and tobacco on the ground, and that was PC for drugs. United States v. Bowles, 2009 U.S. Dist. LEXIS 111618 (E.D. Va. November 30, 2009)*:<\/p>\n
In the instant case, Officer Mace testified that his observation of empty beer bottles inside and outside the vehicle, a cigar box inside the vehicle missing one cigar, and tobacco fillings on the ground outside the vehicle gave him probable cause to believe that a crime had been committed and that Bowles had been involved in the crime. Specifically, Officer Mace testified that the empty beer bottles in and around the vehicle gave him probable cause to believe that Bowles had violated 36 C.F.R. 4.14(b) and that the tobacco fillings outside the vehicle and box of cigars missing one cigar inside the vehicle gave him probable cause to believe that Bowles had violated 21 U.S.C. 844.\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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