NM: Nighttime search rule is really important, but it didn’t apply where the house was cleared and warrant arrived at night

Nighttime searches are dangerous and must be limited. However, in this case, the police emptied the house while they waited for a search warrant which arrived at night, so the prohibition on nighttime searches should not apply. State v. Santiago, 2010 NMSC 18, 148 N.M. 144, 231 P.3d 600 (2010):

[*11] As a general proposition, a nighttime search implicates special concerns of privacy and safety–especially when the search is of a home. See Monroe v. Pape, 365 U.S. 167, 210 (1961) (“Searches of the dwelling house were the special object of this universal condemnation of official intrusion. Night-time search was the evil in its most obnoxious form.” (footnote omitted)), overruled on other grounds by Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 658-59 (1978); Jones v. United States, 357 U.S. 493, 498 (1958) (“[I]t is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home.”); see also Gooding v. United States, 416 U.S. 430, 464 (1974) (Marshall, J., dissenting) (“[S]earches conducted in the middle of the night … involve a greater intrusion than ordinary searches and therefore require a greater justification.” (internal quotation marks and citation omitted)).

[*12] Chief among these concerns are the “peculiar abrasiveness of official intrusions at such periods,” United States v. Ravich, 421 F.2d 1196, 1201 (2d Cir. 1970), and the heightened “possibility of terror and gunplay which may arise from forcible nighttime entries,” State v. Brock, 653 P.2d 543, 545 (Or. 1982). Courts are aware that a person is especially vulnerable in “the privacy of his place of repose during the nighttime hours,” if he is forced “to face a nocturnal confrontation with the police.” United States v. Jerez, 108 F.3d 684, 690 (7th Cir. 1997) (citing Monroe, 365 U.S. at 210 (Frankfurter, J., dissenting)). Consequently, our Rules of Criminal Procedure require law enforcement to obtain special permission from the issuing judge to serve a warrant after 10:00 p.m.