Nighttime Searches

The following is an example of a court deciding whether night time execution of a search warrant calls for any special procedural protections.

The defendant, Elmer Lee Barron, was convicted by a jury in superior court of first degree murder. On appeal, the defendant contends that a nighttime search of his apartment had not been authorized by the issuing magistrate, and therefore violated RSA 595-A:2 and :3 (1986) ... We affirm.

On April 26, 1990, the New Hampshire State Police submitted an application for a search warrant with a supporting affidavit to a Derry District Court judge (the "issuing magistrate") sometime between 10:00 and 11:00 p.m. The police sought to search the defendant's apartment in Londonderry for "instruments for administering blunt trauma, instruments for administering injuries which would cause bleeding, blood stained items, fingerprints, hair, fibers, other microscopic or trace evidence, a body [and] any item belonging to [the victim]." The supporting affidavit indicated that the defendant was the lessee of the apartment and that he had been arrested and was in police custody at the time. There was nothing in the affidavit that indicated that anyone else lived in the apartment rented to the defendant. Based on the application and supporting affidavit, the issuing magistrate signed the warrant form commanding the police "in the daytime (or at any time of the day or night) to make an immediate search of [the defendant's apartment]." The police immediately executed the warrant at approximately 11:20 p.m.

Before trial, the defendant moved to suppress the evidence seized from his apartment during the nighttime search. The Superior Court (McHugh, J.) denied the motion.

On appeal, the defendant argues that the nighttime search violated RSA 595-A:2 ... because the issuing magistrate did not explicitly authorize the nighttime search, and the supporting affidavit did not contain sufficient facts to justify a nighttime search. Specifically, the defendant contends that the issuing magistrate "apparently signed the warrant without designating whether a nighttime search was authorized" since the magistrate did not circle or strike any of the preprinted language on the actual warrant form that directed the police to search "in the daytime (or at any time of the day or night)." Furthermore, the defendant argues that the affidavit failed to articulate any basis for a nighttime search, and thus the State cannot claim that the magistrate intended to authorize a nighttime search.

The State, however, maintains that the nighttime search was conducted in accordance with statutory requirements. The State argues that if the magistrate had decided to limit his authorization to the daytime, he would have crossed out the parenthetical phrase: "(or at any time of the day or night)." Moreover, the State argues that the affidavit and surrounding circumstances justified the authorization of a nighttime search.

RSA 595-A:2 requires that search warrants "shall be substantially in the form prescribed in RSA 595-A:3 and shall be directed to a . . . police officer, commanding him to search in the daytime, or if the warrant so directs, in the nighttime . . . ." RSA 595-A:2 (emphasis added). The relevant language of the search warrant in the present case is identical to the language in the prescribed form: "We therefore command you in the daytime (or at any time of the day or night) to make an immediate search . . . ." RSA 595-A:3. The plain language of RSA 595-A:2 requires the issuing magistrate to specifically authorize a nighttime search. Neither the statute nor the prescribed form, however, indicate the manner in which the magistrate must authorize a nighttime search.

The defendant reads into the statute an additional requirement by suggesting that the magistrate must either cross out the words "the daytime," which precede the parenthetical, or circle the parenthetical provision. We find no such requirement in RSA 595-A:2 or :3. Instead, the form allows for both contingencies, "daytime" and "any time of the day or night," thus requiring the issuing magistrate to strike out the nighttime language if a nighttime search is not authorized. By not striking out the nighttime provision, the issuing magistrate authorized the nighttime search of the defendant's apartment. We assume that the issuing magistrate read the form, was familiar with it, and understood that action was required if he did not intend to authorize a nighttime search.

The defendant next argues that the supporting affidavit neither requested a nighttime search nor contained a sufficient factual basis to justify a nighttime search. We disagree. In his argument, the defendant cites to cases from other jurisdictions which require, by statute or rule, that the application and supporting affidavit for a nighttime search include a specific request and factual basis for justifying a nighttime search. For a nighttime search warrant in New Hampshire, our statute is silent on what is required in the supporting affidavit. Before the current version of RSA chapter 595-A was enacted, the warrant statute required that a nighttime search be supported by "satisfactory evidence that any such property or thing, or any criminal, is concealed in a particular house or place, and may be removed or escape before day . . . ." RSA 595:2 (1969) (repealed) (emphasis added). In 1969, the legislature deleted this "satisfactory evidence" requirement by repealing RSA 595:2. The current warrant statute does not set forth any specific requirement for procuring a nighttime search warrant.

The defendant argues that the statute implicitly requires some showing of necessity for a nighttime search. Assuming, without deciding, that our statute requires a sufficient factual basis to justify a nighttime search, we hold that there were sufficient facts to demonstrate the need for an immediate search on the night of April 26, 1990. The affidavit detailed the evidence which led the police to believe that the items listed in the warrant application would be in the defendant's apartment. The affidavit established that the police were searching for the body of a missing person, without knowing whether the person was dead or injured. The person had been missing for two days. A neighbor had reported that a loud confrontation occurred in the defendant's apartment. In the inventory search of a stolen truck driven by the defendant, the police had found bloodstained items and a knife. The defendant's clothing at the time of his arrest was also bloodstained. At the time of the booking procedure, the defendant had discarded two identification cards belonging to the missing person. Finally, on the day that the victim was reported as missing, his vehicle had been seen in the parking lot where the defendant lived. We find that these facts, considered in tandem with the facts that the police requested an immediate search and made their request at night, justified the authorization of a nighttime search. ...

Affirmed.

QUESTIONS

Who was the most important decisionmaker about the validity of night time searches in New Hampshire? The drafter of the warrant form?

Could the New Hampshire legislature change the outcome in this case?

Chapter 3D - Supplemental Reading

Appellant, Timothy Alan Bingaman, was convicted of Possession of Cocaine with Intent to Distribute, Possession of Marijuana with Intent to Distribute, Possession of a Weapon While Committing a Felony, Concealing Stolen Property and Possession of a Loaded Firearm, all of which were charged After Former Conviction of a Felony in Case No. CRF-87-1253 in the District Court of Oklahoma County. Following a two stage jury trial, Appellant was sentenced to serve terms of eighty-five years each for the two distribution charges, forty years for possession of a firearm while in the commission of a felony, sixty-five years for concealing stolen property and ten years for possession of a loaded firearm. Appellant has appealed raising a number of grounds of error, however, because we find one of the arguments dispositive of the case, we will address only that error.

Police were first summoned to Appellant's house by Appellant himself, who sought to have another man, Alan Beckman, removed from his property as a trespasser. During the afternoon following his arrest, Beckman told police that Appellant had some drugs in the house as well as a number of guns, including some semi-automatic weapons. Officer Regina Taylor prepared a search warrant after speaking to Beckman which she took directly to a judge's home, at about eleven p.m. to have authorized. The warrant was then served at one in the morning.

Appellant alleges that the warrant which lead to the search of his home improperly authorized the search to occur during the nighttime. We held in Wiggin v. State (Okl.Cr. 1988), that: 'Searches of the dwelling house' have always been the subject of close scrutiny because a 'nighttime search is sensitively related to the reasonableness' element contained in the Fourth Amendment. Thus, many states, including Oklahoma, require the presence of special circumstances before the intrusion of a search may occur at night.

Our review of this allegation is directed by statutory language codified at 22 O.S.1981,  1230, which states:

The judge shall insert a directive in the warrant that it be served in the daytime, unless the affidavits be positive that the property is on the person, or in the place to be searched, and the judge finds that there is likelihood that the property named in the search warrant will by destroyed, moved or concealed. In which case the judge may insert a direction that it be served at any time of the day or night.

In order to obtain permission to serve a warrant in the nighttime, the statute clearly requires that the affidavits offered in support of the warrant must clearly establish not only that the evidence sought is at the place to be searched, but also that any delay may result in the loss of the contraband. This two pronged test is not met by the affidavit in the present case.

After speaking to Beckman, Officer Taylor prepared the following affidavit: [the court noted in a footnote that "Spelling and punctuation are as in the original."]

I Officer Taylor the Affiant am a Police Officer with the City of Midwest City. I have approx. One Year and seven months experience in Law Enforcement. I have been assigned to Narcotic Enforcement for One Year and have made numerous Drug transactions. On 03-09087 I the Affiant talked with Allen Beckman a c/m who advised that on 03-08-87 in the afternoon he observed approx. Two ounces of a white crystal substance at the residence of 1720 Waltz Way where timothy Bingaman lives. Mr. Beckman further advised that he say a 9 MM Uzi Automatic weapon, and a mac-10 Machine gun at the residence, and a 9 MM handgun, and that there were numerous other stolen handguns and shotguns. On 03-06-87 at 9:00 P.M. Officers Ford and Taylor saw a Machine gun inside the house while on Surveillance at 1720 Waltz Way. Mr Beckman has been living at 1720 Walt Way for a period of one week, and advises that the residence has a green one and a half ton Truck parked on the Roadway in front of the house, and the substance is often locked up in the right side tool box on the truck. Mr. Beckman further stated that all of these guns were loaded and some of the guns were located in Timothy Bingamans bedroom, and also located in the attic which is inside the garage, Mr. Beckman further stated that there are Five Pit Bull dogs, and they are trained to attack. Mr. Beckman further stated that Timothy Bingaman had the potential to use the guns he keeps at his house.

As we noted above, nighttime searches demand a heightened level of scrutiny due to the inherent level of intrusion on the personal rights of the owner of the home searched. ...

We have searched not only the affidavit for justification of the nighttime search, but also the very extensive record submitted with the appeal. We do not find any testimony or other support for the conclusion that drugs were being sold "rapidly" out of Appellant's house. There is not testimony by any officer that Beckman even mentioned that drugs were being sold. Beckman merely told the officers that there were drugs in the house. Apparently, officers had watched the house on previous occasions, yet there was no evidence presented that any drug transactions had occurred.

Because the record is devoid of any evidence of necessity, we must conclude that the warrant in question was improperly served. The State urges us to find that the ordinary nature of drugs as easily destroyed is enough to justify the search. While it is certainly true that drugs may be transient in nature, we are not inclined to allow wholesale nighttime searches in any case where drugs are alleged to be involved. Such a broad standard would not be in keeping with the standards of the Fourth Amendment and could lead to widespread abuse. The standards required by Section 1230 are simple enough to meet in the appropriate case yet strict enough to satisfy constitutional requirements.

Because we find that the search in question here was unlawful, we have no alternative but to REVERSE the convictions and REMAND the case for further proceedings.

Chapter 3D - Supplemental Reading

The plaintiff in error was indicted in the Court of Oyer and Terminer of Northumberland county, for refusing to execute a warrant issued by Thomas Cooper, esq., president of the Court of Common Pleas of the said county, for the arrest of a certain Jacob Langs, of the said county. The warrant was set forth at large in the indictment, and it appeared on the face of it, that it was issued without any previous oath or affirmation, on the following ground —

"that it appeared to the judge from common report, that there was strong reason to suspect the said Langs of having knowingly uttered as true and genuine, certain false and forged notes, purporting to be notes of the Farmers and Mechanics' Bank of Philadelphia, and that the said Langs was likely to depart from, and quit the county of Northumberland, and retreat to parts unknown, before the witnesses to said uttering could be duly summoned and appear before the said judge, to enable him to issue a warrant on their testimony on oath."

Judge Cooper acted with great candor and propriety in stating on the face of the warrant, that it was issued without oath, and there is no doubt but he was actuated solely by the desire of preventing the escape of a criminal. The question is, whether this warrant does not appear to be illegal, from matter contained in the body of it? Of such matter the constable had a right to judge; and if it was illegal, he was not bound to execute it.

It is declared by the 8th section of the 9th article of the constitution of Pennsylvania, that no warrant shall be issued to seize any person, without probable cause supported by oath or affirmation. These expressions are very plain and very comprehensive. But it has been contended that the public safety requires that they should be subject to some exceptions; that in cases of necessity the oath may be dispensed with; and that the magistrate who issues the warrant must be the judge of that necessity. It appears to me, that if this be the true construction, the provision in the constitution is a dead letter; because in every instance, the magistrate who issued the warrant, would say that he thought it a case of necessity. It is true, that by insisting on an oath, felons may sometimes escape. This must have been very well known to the framers of our constitution but they thought it better that the guilty should sometimes escape, than that every individual should be subject to vexation and oppression.

It is unnecessary to consider whether there is no possible case, in which a warrant may be issued without oath, a case for instance, in which a crime is committed under the eye of a magistrate; or whether in cases of great and imminent public danger, the salus populi will not form an exception to the general rule. When such cases arise it will be time enough to decide them. It is dangerous for a court to lay down general propositions, from which unforeseen consequences may be drawn. I shall therefore confine my opinion to the warrant set forth in the indictment. It was commonly reported that Langs was guilty of uttering counterfeit notes; this common report came to the ears of the judge, and on that he issued his warrant. The constitution says a warrant shall not be issued without oath, which is more than common report. If the constitution did not mean, that a man charged with or suspected of a particular offence, should not be arrested, unless some person swore either that he believed him to be guilty, or to some facts from which it might be reasonably inferred that he was guilty, then I confess I can see no meaning in it. As for the necessity set forth in the warrant, that is to say the probability that the criminal might escape, I cannot think that it is of that nature, which can form an exception to the constitution; even supposing (which I do not affirm) that any necessity can form an exception. I am therefore of opinion, that the warrant was illegal, on the face of it, and the defendant not bound to execute it; consequently when he refused to execute it, he was guilty of no offence. But the refusal to execute the warrant is the only matter charged against the defendant in the indictment. Therefore, although the jury have convicted him of the matter charged, it does not appear on the record that he has been convicted of any crime. It follows, that the judgment of the Court of Oyer and Terminer was erroneous and must be reversed.