This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1661
State of Minnesota, Respondent,
vs.
Luis Rodolfo Rojas-Santos, Appellant.
Filed December 7, 2015 Reversed Cleary, Chief Judge Dissenting, Hooten, Judge
Hennepin County District Court File No. 27-CR-13-39983
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County Attorney, Thomas Caturia (certified student attorney), Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Adam Chandler (certified student attorney), St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Cleary, Chief Judge; and
Halbrooks, Judge. UNPUBLISHED OPINION
CLEARY, Chief Judge
On appeal from his conviction of first-degree controlled substance crime (sale),
appellant seeks review of a district court order denying his motion to suppress evidence
on the basis that the nighttime search of his home was unlawful. Because the district
court erred in finding reasonable suspicion to authorize a nighttime search, we reverse.
FACTS
On December 4, 2013, the Minneapolis police applied for a nighttime search
warrant to search appellant’s home. The police officer’s supporting affidavit stated that a
confidential reliable informant (CRI) had been in the residence within the previous 72
hours and had seen a large quantity of cocaine or crack cocaine. The CRI gave a specific
description of a person named “Chilango” and said that Chilango sells cocaine out of the
house. The CRI also told police that “Chilango only sells out of [the house] after [6:00
p.m.] and that he sells throughout the night.” Before the officer applied for the search
warrant, he surveilled the house and saw several vehicles pull up to the house over a
period of time. Each time a vehicle arrived, someone would get out of the vehicle, go
into the house for a few minutes, and come out a short time later. According to the
officer, this behavior is common at houses where narcotics are sold. The officer’s search
warrant application stated that a nighttime search was “necessary to prevent the loss,
destruction or removal” of evidence because the CRI conducted a controlled buy after
8:00 p.m. and the CRI said that Chilango “conducts his narcotics sales after 2000 hours
2 and late into the night.” No explanation was given in the application for the difference
between the time sales began as stated in the affidavit (only after 6:00 p.m.) and the time
sales began as suggested in the application (after 8:00 p.m.).
A judge authorized the search warrant on the evening of December 4, 2013 at
8:24 p.m. Police executed the warrant that night at approximately 9:30 p.m. Officers
found over a kilogram of cocaine, miscellaneous drug paraphernalia, a handgun holster, a
bulletproof vest, and $2,765 in cash in the house. Appellant—who was identified as
“Chilango”—was arrested and charged with first-degree sale of a controlled substance in
violation of Minn. Stat. § 152.021, subd. 1(1) (2012).
Appellant moved to suppress the evidence obtained from the search, arguing that
the search warrant application did not show that it was necessary to conduct a nighttime
search. The district court denied the motion. The district court considered the
information from the CRI, found that drug sales occurred at the house chiefly at night,
and determined that “[i]t was reasonable for [the issuing judge] to infer that the narcotics
would be lost, destroyed or removed from the residence before the next morning because
‘Chilango’ only sold narcotics at night.” The district court concluded that the search
warrant application established reasonable suspicion to believe that a nighttime search
was necessary to preserve evidence.
To preserve the suppression issue for review, appellant agreed to a stipulated-facts
trial under Minn. R. Crim. P. 26.01, subd. 4. The district court found appellant guilty and
sentenced him to 74 months in prison. This appeal followed.
3 DECISION
Minnesota law provides:
A search warrant may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless the court determines on the basis of facts stated in the affidavits that a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public. The search warrant shall state that it may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless a nighttime search outside those hours is authorized.
Minn. Stat. § 626.14 (2012). The statute “specifically aims to prevent police intrusion
into the personal and private activities of individuals in their homes at night unless the
police articulate facts sufficient to support their intrusion.” State v. Jackson, 742 N.W.2d
163, 173 (Minn. 2007). The statute “seems to require . . . some showing to the magistrate
that the warrant can only be executed successfully in the nighttime.’’ State v. Bourke,
718 N.W.2d 922, 926 (Minn. 2006) (emphasis added) (quotation omitted).
The rationale for section 626.14 is to “protect the public from the abrasiveness of
official intrusions during the night.” Jackson, 742 N.W.2d at 170 (quotation omitted).
The “special status of a person’s home at night” is reflected in the common law and in
early American statutes barring such searches. Id. at 169-170. Section 626.14 “appears
to represent a codification and application of a legal history that illustrates an aversion to
nighttime searches.” Id. It allows nighttime searches only under statutorily specified
conditions. “A search warrant may be served only between the hours of 7:00 a.m. and
8:00 p.m. unless the court determines on the basis of facts stated in the affidavits that a
4 nighttime search outside those hours is necessary . . . .” Minn. Stat. § 626.14 (emphasis
added). In 1992, the legislature amended the search warrant statute to clarify that
nighttime hours begin at 8:00 p.m. and end at 7:00 a.m. 1992 Minn. Laws ch. 569, § 29,
at 1940. The statute previously read “[t]he search warrant shall state that it may be
served only in the daytime unless a nighttime search is authorized.” Id. The inclusion of
the phrase “outside those hours” in the amended statute emphasizes that any search that
takes place after 8:00 p.m. or before 7:00 a.m. is a nighttime search.
Before a nighttime search can be authorized under section 626.14, the application
for the search warrant “must establish at least a reasonable suspicion that a nighttime
search is necessary to preserve evidence or to protect officer or public safety.” Bourke,
718 N.W.2d at 927. The standard for reasonable suspicion is “not high” but requires
“something more than an unarticulated hunch.” Id. (quotation omitted). To meet the
standard, “the officer must be able to point to something that objectively supports the
suspicion at issue.” Id. (quotation omitted). On review, we give great deference “to the
issuing judge’s determination of whether a nighttime search warrant should be authorized
under Minn. Stat. § 626.14. The issuing judge’s determination must be based on the
factual allegations contained in the affidavit in support of the warrant application and the
reasonable inferences to be drawn therefrom.” Bourke, 718 N.W.2d at 928 (quotation
omitted).
Here, the factual allegations in the supporting affidavit and the reasonable
inferences drawn from them do not establish a reasonable suspicion that a nighttime
5 search was necessary to preserve evidence.1 The district court characterized apparently
conflicting statements in the search warrant application and affidavit regarding the timing
of narcotics sales as “typographical inconsistencies.” The district court explained, “At
one point in the application, [the officer] attests that ‘Chilango’ only sells after 6:00 p.m.
and at another the application states that ‘Chilango’ only sells after 8:00 p.m.” This
analysis misstates the factual allegations in the affidavit and application. The affidavit
states, “Chilango only sells out of this address after 1800 hours and . . . throughout the
night” while the application for a nighttime search states that “Chilango conducts his
narcotics sales after 2000 hours and late into the night.” The application does not say that
appellant only sells after 2000 hours. It says that appellant sells after 8:00 p.m. and late
into the night. The affidavit says that appellant only sells drugs after 6:00 p.m. The
district court’s interpretation of the affidavit and application was therefore in error. The
supporting affidavit unambiguously indicates that there are two daytime hours during
which narcotics sales occur at the house—between the hours of 6:00 p.m. and 8:00 p.m.
There is no explanation as to why the warrant could only be executed after that time,
1 The state does not allege that officer or public safety was at issue, as there was no evidence of weapons at the house, or of security cameras that would warn occupants of the arrival of police officers, or of other circumstances that would create a dangerous situation to public safety or to police officers executing the warrant. See State v. Wasson, 615 N.W.2d 316, 319, 322-23 (Minn. 2000) (police requested and received permission to execute a no-knock, nighttime search warrant in the interest of officer safety where weapons had been found during a previous search of the same residence). We therefore discuss only whether the need to preserve evidence supported the nighttime search.
6 during nighttime hours. The application and affidavit failed to show that it was necessary
to conduct a nighttime search.2
The district court concluded that, notwithstanding what it saw as “typographical
inconsistencies,” factual allegations in the search warrant application showed that “any
potential narcotics were stored in and sold from the residence chiefly at night.” The
district court held that this supported a reasonable inference that a nighttime search was
necessary to preserve evidence that would otherwise be lost or removed by the next
morning due to a night of sales. This reasoning fails to explain why officers could not
execute a warrant between 6:00 p.m. and 8:00 p.m.
Factual allegations in the affidavit and application support the inference that drugs
were sold at the residence chiefly at night. But when considered together, the factual
allegations do not support the inference that the warrant could only be executed
successfully at night, or that a nighttime search was necessary to preserve evidence. The
CRI reported seeing narcotics at appellant’s residence in the 72 hours before law
enforcement applied for a warrant. The affidavit does not indicate whether the CRI
viewed the drugs during daytime or nighttime hours. The officer’s affidavit explains that
he conducted surveillance within 72 hours before applying for the warrant and “saw
2 It appears the officer sought a warrant after 8:00 p.m. without an explanation as to why the application was not submitted the day before, or earlier in the day, or as to why the warrant had to be executed that night. We do not attribute any ulterior motive to this officer in seeking a warrant after 8:00 p.m. We are concerned, however, that the authorization of a nighttime search not become a fait accompli based simply on the submission of an application after 8:00 p.m., when any search authorized becomes a nighttime search.
7 several vehicles pull up to the address over a period of time.” The officer believed that
the behavior of the people who got out of each vehicle and went in and out of the house
indicated that narcotics sales were likely occurring in the house. The officer did not say
whether his surveillance occurred during daytime or nighttime hours. The warrant
application also did not state on what date the controlled buy occurred. Because the
controlled buy might have happened the day before, or two days before, or a week before
police applied for the search warrant, it does not support an inference that immediate
action was necessary to preserve evidence on the evening of December 4, 2013. If
officers were concerned about preserving as much evidence as possible, it would be best
to conduct the search closer to 6:00 p.m. when—based on the facts alleged in the
application and affidavit—it is likely that appellant would be present at his residence,
fewer sales would have already occurred, and as much evidence as possible would be
intact. Even under our deferential standard, the state has not met its burden of showing at
least a reasonable suspicion that a nighttime search was necessary. Officers therefore
executed a search warrant with an invalid nighttime authorization when they searched
appellant’s residence.
This court must determine whether evidence seized in the invalid nighttime search
must be suppressed. “[S]erious violations which subvert the purpose of established
procedures will justify suppression.” State v. Cook, 498 N.W.2d 17, 20 (Minn. 1993).
The Minnesota Supreme Court has held that where police
execute a search warrant with an invalid nighttime authorization, and with no knowledge that defendant had not
8 yet entered a period of nighttime repose . . . the evidence seized in the search [must] be suppressed, both because the entry subverted the basic purpose of the statute regulating nighttime searches and the entry violated the defendant’s rights to be free from unreasonable searches and seizures under the United States and Minnesota Constitutions.
State v. Jordan, 742 N.W.2d 149, 153 (Minn. 2007).
In Jackson, the supreme court defined the privacy interest that restrictions on
nighttime searches are designed to protect as the “period of nighttime repose.” 742
N.W.2d at 171 (emphasis omitted). “Repose” refers to “certain private activities that
occur in the home” at night, and which are “customary nighttime activities.” Id.
Whether occupants of a home have entered their period of nighttime repose is a fact-
intensive inquiry. See id. (discussing facts relevant to this determination). Depending on
the circumstances surrounding the search, it may be more or less apparent to officers
whether occupants are engaged in customary nighttime activities. Id. In reviewing
whether an invalid nighttime search intruded upon an occupant’s protected period of
repose, the supreme court has held that such a search is not a serious violation of Minn.
Stat. § 626.14 where officers knew immediately before executing a warrant that
occupants had not entered nighttime repose. State v. Lien, 265 N.W.2d 833, 841 (Minn.
1978). In Lien, an invalid nighttime search occurred, but in the brief period of time
before officers executed the search warrant, they observed several people going in and
out of the apartment to be searched, they watched the defendant’s car arrive and observed
him entering the apartment, they knew that the defendant was fully clothed, and when
they approached the building they observed that the apartment door was slightly open.
9 Id. at 836, 841. Law enforcement officers did not make similar observations immediately
prior to execution of the nighttime search warrant in this case.
Minn. Stat. § 626.14 also protects “a homeowner’s interest in safeguarding against
unauthorized intrusion of a home that is occupied by resident members of his family and
social guests.” Jordan, 742 N.W.2d at 154. In Jordan, the supreme court noted that
officers entered the home without knowing “whether [the homeowner] or any other
occupants were sleeping, were engaged in particularly personal behavior which they were
attempting to keep private, or were in their nightclothes.” Id. at 153. This analysis
suggests that it is important to consider what officers in this case knew about other
occupants of appellant’s residence, in addition to the target of the search. There is no
indication that officers knew that occupants had not already entered a period of nighttime
repose at the time officers executed the warrant.
The state argued, and the district court found, that the warrant was executed at
approximately 9:30 p.m. on December 4, 2013. This is a nighttime search. In Jackson,
the supreme court held that entry into a home at 9:25 p.m. on December 11 fell within the
period of nighttime repose, as it had been dark for several hours. 742 N.W.2d at 177. In
the instant case, the district court found that when officers executed the search warrant,
they knocked, announced themselves, and then saw appellant sitting on the living room
couch. Critically, however, the officers did not see appellant until they entered the
residence with the warrant. As a result, the officers’ knowledge that appellant had not yet
entered a period of nighttime repose was gained only after execution of the search
10 warrant and they had no way to know that appellant, his family members, or others were
not in the period of nighttime repose before execution of the warrant. At the time officers
executed the search warrant, they only had the expectation that appellant would be awake
and active, because they believed that drug sales occurred at appellant’s residence
throughout the night. Such an expectation is not the equivalent of knowledge. See Lien,
265 N.W.2d at 841 (holding that an invalid nighttime search is not a serious violation of
Minn. Stat. § 626.14 where officers knew, based on observations they made at a
residence just before executing a search warrant, that occupants of the residence had not
entered nighttime repose).
In sum, the application for the search warrant and supporting affidavit did not
provide at least a reasonable suspicion that a nighttime search was necessary to preserve
evidence. The invalid nighttime search subverted the purpose of Minn. Stat. § 626.14,
requiring suppression of the evidence seized during the search. The district court erred in
denying appellant’s motion to suppress the evidence arising from the search. Because
our conclusion on the nighttime search issue is dispositive, we decline to address the
remaining issue of dispositional departure.
Reversed.
11 HOOTEN, Judge (dissenting)
I respectfully dissent. Here, there is no dispute that there was probable cause for
issuance of the search warrant; the only issue is whether the issuing judge validly
authorized a nighttime entry into appellant’s residence.1 Because the warrant application
contained articulable facts that established at least a reasonable suspicion that a nighttime
search was necessary to preserve evidence, I would conclude that the search warrant was
valid, and, even if it was not valid, suppression of the evidence of contraband would not
be required under the facts of this case.
All that is required for a nighttime search under Minnesota law is that the
application for the search warrant “must establish at least a reasonable suspicion that a
nighttime search is necessary to preserve evidence or to protect officer or public safety.”
State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006). The standard for reasonable
suspicion is “not high” but requires “something more than an unarticulated hunch.” Id.
(quotations omitted). To meet the standard, “the officer must be able to point to
something that objectively supports the suspicion at issue.” Id. (quotation omitted). “The
issuing judge’s determination must be based on the factual allegations contained in the
affidavit in support of the warrant application and the reasonable inferences to be drawn
therefrom.” Id. at 928 (quotation omitted).
1 Moreover, this case does not involve a knock and announce issue. In the search warrant application, the requesting officer did not seek authorization for an unannounced entry into appellant’s residence. Upon arriving at the residence, the officers knocked on the door and announced their presence, and one of the occupants answered the door. D-1 In Bourke, the Minnesota Supreme Court concluded that appellate courts should
give “great deference” to an issuing judge’s determination of whether to authorize a
nighttime search warrant. Id. at 927–28. The supreme court came to this conclusion by
using the same rationale that is used for giving great deference to an issuing judge’s
determination of probable cause for a search warrant. Id. “The primary rationale for
giving the issuing judge ‘great deference’ is to avoid setting such a high standard for
warrants that the police would be discouraged from seeking the warrant in the first
place.” Id. To ensure that police are not discouraged from seeking a warrant, “the
resolution of doubtful or marginal cases should be largely determined by the preference
to be accorded warrants.” State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999)
(quotations omitted).
As our supreme court recognized in State v. Miller, 666 N.W.2d 703, 714 (Minn.
2003), an issuing judge may draw reasonable inferences from a search warrant
application based upon common sense and the information provided regarding the nature
and circumstances of a crime. Quoting Illinois v. Gates, 462 U.S. 213, 231–32, 103 S.
Ct. 2317, 2328–29 (1983), the court in Miller observed:
Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. As these comments illustrate, probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.
D-2 Id.
Here, because appellant was selling narcotics out of his home during the nighttime
hours, there was a reasonable—and common-sense—inference that a significant quantity
of the narcotics would be diminished in part or whole during the nighttime hours. In his
application for a nighttime search warrant, the police officer did not rely on an
“unarticulated hunch” or boilerplate language, but pointed to specific facts given to him
by a confidential reliable informant (CRI). The officer noted that the CRI had reported
that a 22-year-old Hispanic male named “Chilango” sold cocaine or crack cocaine from
his residence and that the CRI had seen a large quantity of the drugs in Chilango’s house
within the 72 hours prior to the application for the search warrant. The CRI also reported
that Chilango sold the narcotics during the night, beginning as early as 6:00 p.m. and
continuing “throughout the night.” The officer also stated that the CRI made a controlled
buy from Chilango at the residence after 8:00 p.m. In describing his surveillance of the
residence, the officer observed that over a period of time, “several” vehicles would drive
up; one person would get out of each vehicle, go into the house, and then come out after
only a few minutes; and then the vehicle would leave. The officer reported that based
upon his experience as a narcotics investigator, this observation was “very common with
houses that are dealing narcotics.” Based upon these specific facts, the officer requested
authorization to conduct a nighttime search “to prevent the loss, destruction or removal
of” the narcotics, noting specifically that the CRI’s controlled buy was conducted after
D-3 8:00 p.m. and the CRI’s report that Chilango conducted his narcotics sales after 8:00 p.m.
and “late into the night.”
The majority correctly notes that these facts indicate that appellant sold drugs
during daytime hours between 6:00 p.m. and 8:00 p.m. But, under the stipulated facts,
the issuing judge authorized the search warrant at 8:24 p.m., 24 minutes after the
statutory deadline for a daytime search. It was reasonable to infer from these facts that if
police had waited until 7:00 a.m. the next morning or 6:00 p.m. the next night to execute
the search warrant, both of which would constitute a daytime search under Minn. Stat.
§ 626.14, appellant would have sold at least some, if not all, of the narcotics throughout
the night, and evidence would have been lost. Giving great deference to the issuing judge
and the preference to be accorded search warrants, the search warrant application
established at least a reasonable suspicion that a nighttime search was necessary to
preserve evidence.
The majority fails to identify even one reported Minnesota case that supports the
invalidation of the nighttime search warrant, and the suppression of the evidence, under
these circumstances. In Bourke, our supreme court noted that the validity of a nighttime
search warrant may be based upon inferences that may be reasonably drawn from the
application. 718 N.W.2d at 928. In rejecting Bourke’s argument that the search warrant
was a product of boilerplate language, the supreme court determined that the statement
that Bourke was at large was sufficient to support a reasonable inference that he could
return and destroy evidence of his methamphetamine manufacturing operation—even
though such reasonable inference was not clearly articulated in the search warrant. Id. at
D-4 928–29. Here, the reasonable inference that can be drawn from the warrant application is
that narcotics would be sold from the residence throughout the night, and evidence of the
quantity, and perhaps even the existence, of the narcotics would be lost if the nighttime
search warrant was not immediately issued.
And, State v. Jackson, 742 N.W.2d 163 (Minn. 2007), and State v. Jordan, 742
N.W.2d 149 (Minn. 2007), are easily distinguishable. In both of those cases, even the
state agreed that the nighttime search warrants in those cases were invalidly issued
because there was no statement of facts made upon which reasonable inferences could be
drawn as to the necessity of a nighttime search. Jackson, 742 N.W.2d at 167–68; Jordan,
742 N.W.2d at 151, 153.
Cases from other jurisdictions have upheld nighttime searches when there was
particularized evidence of narcotic drug sales that occurred late at night or in the early
morning hours. See, e.g., United States v. Randle, 196 Fed. Appx. 676, 679–80 (10th Cir.
2006) (upholding nighttime search where affidavit in support of warrant application
stated that defendant sold narcotics only after 10:00 p.m.); State v. Jackson, 571 P.2d
266, 268 (Ariz. 1977) (upholding nighttime search where affidavit in support of warrant
application stated that defendant was selling marijuana “during all times of the day and
night”); State v. Eichorn, 694 P.2d 1223, 1227–28 (Ariz. Ct. App. 1984) (finding good
cause for nighttime search for narcotics where affidavit alleged two nighttime narcotic
drug sales); People v. Govea, 235 Cal. App. 2d 285, 298–99 (Cal. Dist. Ct. App. 1965)
(finding good cause for nighttime search when investigation and surveillance had
established that nighttime narcotic sales had taken place); Dunfee v. State, 346 A.2d 173,
D-5 175–76 (Del. 1975) (upholding nighttime search where affidavit stated that informant
indicated defendant was selling drugs from his home, anonymous calls reported
suspicious activity from 8:00 p.m. to midnight, and informant made controlled buy);
State v. Fowler, 674 P.2d 432, 439–40 (Idaho Ct. App. 1983) (finding good cause for
nighttime search where surveillance had established that “several” nighttime controlled
substance sales had occurred).
Here, the issuing judge could reasonably infer from the fact that appellant made a
nighttime sale to a CRI after 8:00 p.m. and conducted his narcotic sales throughout the
night that there was a reasonable suspicion that the quantity of the narcotics would be
lessened or eliminated over the course of a night. Under our deferential standard of
review, and given the facts and reasonable inferences available to the issuing judge, I
would hold that the state met its burden of showing that there was at least a reasonable
suspicion that a nighttime search was necessary. The district court, in providing the
“great deference” that is given to an issuing judge, did not err in its conclusion that the
nighttime search warrant was valid. Bourke, 718 N.W.2d at 927–28.
Even if the nighttime authorization were invalid, suppressing the evidence
obtained in the search is not warranted under these facts. The core purpose behind Minn.
Stat. § 626.14 was a historic aversion to nighttime searches. Jackson, 742 N.W.2d at
170. The “statute was intended to protect against, at a minimum, the indignity of being
roused out of bed in the middle of the night and made to stand by in nightclothes.” Id.
The interest protected by the statute is the “freedom from intrusion during a period of
nighttime repose.” Id. at 171 (emphasis omitted). “[T]he test for whether suppression is
D-6 required is whether the violation of the statute was a serious one that subverted the
purpose of the statute.” Jordan, 742 N.W.2d at 153. “[T]he critical inquiry is what the
officers know at the time of entry.” Id. at 154. If the officers know that they will not be
intruding on a period of nighttime repose, the evidence may be admissible. Id. But, the
evidence should be suppressed if the officers do not know whether they will be intruding
on a period of nighttime repose. Id.
The majority concludes that the officers here had only an “expectation” that
appellant would not be in a period of nighttime repose when they executed the search
warrant. But, on these stipulated facts, the police officers had more than a mere
expectation that appellant would not be in repose at the time the search warrant was
executed. Based upon their investigation, the officers knew before they executed the
warrant that appellant sold narcotics late into the night and throughout the night. They
executed the warrant at approximately 9:30 p.m., a reasonable hour when most people are
still awake and when a 22-year-old man who sells drugs late into the night would
certainly be awake. See State v. Lien, 265 N.W.2d 833, 836, 841 (Minn. 1978) (noting
that a warrant executed shortly after 9:00 p.m. was executed at “a reasonable hour when
most people are still awake”), overruled on other grounds by Richards v. Wisconsin, 520
U.S. 385, 117 S. Ct. 1416 (1997).2 Jackson defined repose to include “certain private
activities” that customarily occur at night. 742 N.W.2d at 171. Repose is also defined as
2 Although Lien was decided before the legislature amended Minn. Stat. § 626.14 to define nighttime as 8:00 p.m. to 7:00 a.m., the amendment of this statute did not affect the Lien court’s reasonableness determination, for Fourth Amendment purposes, that people tend to be awake shortly after 9:00 p.m. See 1992 Minn. Laws ch. 569, § 29, at 1940. D-7 “[c]essation of activity.” Id. (alteration in original) (quoting Black’s Law Dictionary
1327 (8th ed. 2004)). But, appellant did not cease his activity at night. Instead, rather
than sleeping or engaging in private activities associated with repose, the officers had
evidence that it was during the night that appellant engaged in his commercial enterprise
of selling drugs to the public. Under these circumstances, any supposed violation would
not be a serious one that subverted the purpose of the statute. Ironically, given
appellant’s history of conducting narcotic sales throughout the night, it is more likely that
had the search warrant been executed the following morning at 7:00 a.m. as a daytime
warrant, appellant indeed would have been “roused out of bed” and “made to stand by in
nightclothes.” Id. at 170.
Contrary to appellant’s assertion, there was also no constitutional violation of his
Fourth Amendment rights. In Jackson, the supreme court concluded that a “search of a
home at night is a factor to be considered in determining whether a search is reasonable
under the Fourth Amendment.” Id. at 177. The court ruled that police officers violated
Jackson’s constitutional rights “when, without information indicating that Jackson had
not yet entered a period of nighttime repose, they entered her home at 9:25 p.m. in the
wintertime—December 11—with a search warrant that invalidly authorized a nighttime
entry.” Id. This case is distinguishable from Jackson. The officers here had a warrant
that validly authorized a nighttime entry and, unlike in Jackson, these officers had
D-8 information that they would be executing the warrant at a time when appellant would not
be sleeping, but would be actively engaged in the sale of narcotics.3
Accordingly, I conclude that the district court did not err in determining that the
nighttime search warrant was valid because there was a reasonable inference that a
nighttime search was necessary to preserve evidence of narcotics. Even if the nighttime
search warrant was invalid, under the facts of this case, the execution of the warrant did
not seriously subvert the basic purpose of Minn. Stat. § 626.14 because it was executed at
a time when the police officers were aware that appellant was not in repose, but was
conducting sales of narcotics. Finally, there is no showing that appellant’s Fourth
Amendment rights were violated. The district court should be affirmed in its denial of
appellant’s motion for suppression.
3 Notably, if this case had been brought in federal court, the nighttime aspect of this search for narcotics would not even be an issue. The Federal Rules of Criminal Procedure define daytime as the hours between 6:00 a.m. and 10:00 p.m. Fed. R. Crim. P. 41(a)(2)(B). The search here would have been within the federal definition of daytime. Furthermore, federal law allows search warrants relating to controlled substance offenses to be served “at any time of the day or night.” 21 U.S.C. § 879 (2012). In rejecting a Fourth Amendment challenge to this federal statute, the United States Supreme Court in Gooding v. United States declared that nighttime searches for narcotics are treated differently from other searches and concluded that 21 U.S.C. § 879 “requires no special showing for a nighttime search, other than a showing that the contraband is likely to be on the property or person to be searched at that time.” 416 U.S. 430, 458, 94 S. Ct. 1780, 1794 (1974). The Supreme Court noted that in cases involving searches for controlled substances, “Congress has considered the need for privacy to be counterbalanced by the public need for more effective law enforcement.” Id. at 453–54, 94 S. Ct. at 1792. As was explained by Fourth Circuit in United States v. Rizzi in its rejection of the constitutional challenge to the federal statute allowing nighttime searches for narcotics, the Supreme Court “has never held that the Fourth Amendment prohibits nighttime searches.” 434 F.3d 669, 674–75 (4th Cir. 2006). D-9