Nighttime search rule only technically violated because defendant was not home, so that does not lead to exclusion

The warrant was not a nighttime warrant, but the officers executed it at night. Three people were at home, however, but not the defendant. The violation was technical at best because, while the other people were awakened by the police arriving too early in the morning, the defendant was not one of them, and his interests were not involved or protected by the nighttime search rule. This is the majority rule. State v. Jordan, 726 N.W.2d 534 (Minn. App. January 30, 2007):

“Underlying the Minnesota statutory rule … is the belief that a nighttime search of a home involves a much greater intrusion upon privacy and is presumably more alarming than an ordinary daytime search of a home.” State v. Lien, 265 N.W.2d 833, 839-40 (Minn. 1978); see also State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985) (stating that in adopting section 626.14 “[t]he legislature recognized that entry into a residence in the middle of the night is a greater invasion of residential privacy than entry during the daytime”).

Here, the state does not argue that the district court erred in determining that the warrant application did not contain sufficient facts to support a nighttime search. Instead, the state contends that the district court should not have suppressed the evidence obtained during the search pursuant to the invalid nighttime search warrant when respondent was not home when the search warrant was executed. Specifically, the state argues that the violation was statutory rather than constitutional in nature and, therefore, does not justify suppression of the evidence.

The distinction between a statutory and a constitutional violation was articulated by the Minnesota Supreme Court in Lien. In that case, an officer applied to the district court for a warrant to search the defendant and his residence for controlled substances and paraphernalia. 265 N.W.2d at 835-36. The application requested a nighttime search “to prevent the loss, destruction or removal of the objects of the search because … it is unknown when the person described herein will be at the premises described herein.” Id. at 836 (quotation marks omitted). The district court issued a search warrant authorizing a nighttime search. Id.

The district court noted that (1) the search warrant was executed between 5:27 a.m. and 6:00 a.m., roughly one hour to one and one-half hours before “daytime”; (2) all three people in the residence at the time the warrant was executed were asleep; and (3) there was no evidence to suggest that people were coming and going from the residence at the time of or just prior to the search, that there was activity in the residence, or that the door was open. Based on these facts, the district court concluded that the circumstances of the search amounted to a constitutional violation and, therefore, the evidence seized during the search should be suppressed.

We agree that the three individuals who were roused from their sleep in the early morning hours and forced to stand by idly as law-enforcement authorities searched the home have a legitimate argument that a violation of their constitutional rights occurred, and, consequently, that the evidence against them should be suppressed. But we draw a distinction between those individuals and respondent, who was absent when the warrant was executed. Because respondent was not present when the search took place, the Lien court’s policy concern with individuals “being roused out of bed and forced to stand by in their night clothes while the police conduct [a] search” is not triggered.

…

A few courts have addressed the issue of whether one has a reasonable expectation of privacy in his home when that individual is not present so that the execution of an invalid nighttime search warrant amounts to a constitutional violation requiring suppression of any evidence seized. n1

n1 See United States v. Searp, 586 F.2d 1117, 1122, 1125 (6th Cir. 1978) (holding evidence seized during execution of nighttime search warrant that violated Fed. R. Crim. P. 41(c)(1) should not be excluded where defendant was not present when the search of home took place because “there was neither a possibility of bad faith conduct on the part of the police, nor prejudice to the defendant,” and “no substantial right of the defendant ha[d] been infringed”; therefore, the search was “reasonable” under the Fourth Amendment); Gamble v. State, 473 So. 2d 1188, 1195-96 (Ala. Crim. App. 1985) (holding that while “[a]n error . . . may have been committed with respect to the issuance” of a search warrant for defendant’s car that was executed at night, suppression of the evidence seized was unnecessary because defendant “was not subjected to an abusive, arbitrary intrusion into his home in the middle of the night, but was already in custody and his vehicle under surveillance”) (alteration in original) (quotation omitted); Commonwealth v. Camperson, 437 Pa. Super. 355, 650 A.2d 65, 67, 70-71 (Pa. Super. Ct. 1994) (holding suppression of evidence was not required for seizure of drugs conducted pursuant to potentially invalid nighttime search warrant, when defendant was in custody both when police obtained search warrant and when search of home was conducted at 10:30 p.m., because violation of the state’s nighttime search rule, if any, was technical in nature and appellant was not disadvantaged thereby); State v. Chandler, 267 S.C. 138, 226 S.E.2d 553 (S.C. 1976) (holding evidence should not be suppressed when police searched defendant’s home at nighttime while defendant was in jail, despite the fact that the search warrant authorized a search in the daytime only, because violation was statutory in nature). But see Henry v. State, 373 A.2d 575, 578 (Del. 1977) (holding that evidence seized during search of defendant’s home while defendant was in custody of the police should be suppressed because search warrant was issued in violation of state nighttime search statute).