The state violated the nighttime search rule by executing this search warrant at 10:18 pm rather than before 10 pm, but the officers claimed not to know the exact time. There was no showing in the search warrant papers for a nighttime search. In any event, when they arrived, the occupants were fully clothed, awake, and up and about the house, and there was no prejudice to them. Essentially, the court finds that the good faith exception applies as well. State v. Deen, 2015 WY 5, 2015 Wyo. LEXIS 6 (January 8, 2015):
[*P15] No showing of reasonable cause was made for searching Mr. Deen’s residence after 10 p.m. However, when law enforcement entered the residence there was a lamp on in the living room, a fully clothed female came into the room from the hallway and a male, also fully clothed, came out of the first bedroom. Mr. Deen and a third male were also fully clothed. This was not a situation where law enforcement entered a private dwelling late at night when the occupants were asleep in their beds.
[*P16] Additionally, Investigator Hipsag testified that if he had realized it was after 10 p.m., he probably would have contacted the judge again and tried to obtain an endorsement allowing execution of the search warrant after 10 p.m. Otherwise, he testified, he most likely would have secured the residence by posting law enforcement outside and waited until 6 a.m. to execute the warrant. One way or the other a search was going to happen in the next eight hours.
[*P17] Given these facts, we conclude that Mr. Deen was not prejudiced by service of the search warrant at just after 10:18 p.m. The occupants of the residence were awake when law enforcement arrived. The search was going to occur either that night with a nighttime endorsement or early the next morning without an endorsement. In the latter event, a search in compliance with Rule 4(c) at 6 a.m. when the occupants might well have been asleep would have been more abrasive than the 10:18 search when they were awake. Under the first part of the test this Court adopted in Murray, 855 P.2d at 355, there was no prejudice “in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed.”
[*P18] There also was no evidence of intentional and deliberate disregard of Rule 4(c). Investigator Hipsag testified that at the time of the search he did not realize it was after 10 p.m. He did not discover it was after 10 p.m. until two days later when he looked at the radio log. He testified that it was “absolutely not” a willful violation of the 10 p.m. to 6 a.m. rule; it was an “oversight.” He also testified that had he realized it was after 10 p.m., he would not have executed the warrant. The district court expressly found credible the testimony that there was no intent on the part of law enforcement to serve the warrant outside the warrant’s time limitations. Under the second part of the Murray test, there was no evidence of an intentional and deliberate disregard of the rule supporting a determination that Mr. Deen was prejudiced by execution of the search warrant just after 10:18 p.m. Because Mr. Deen was not prejudiced, exclusion of the evidence seized in the search was not warranted. Murray, 855 P.2d at 355.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)