Is Daytime Like No-Knock?

At Volokh Conspiracy, Orin Kerr raises an interesting question arising out of the D.C. Circuit’s decision in Jones v. Kirchner.

The question in the case is whether a magistrate judge’s decision to limit a warrant search to daytime hours is binding, such that the officers necessarily violate the Fourth Amendment if they execute the warrant at night. The court presented the issue as easy and answered the question “yes.”

For most of us, there would be little question as to why anyone would find the decision otherwise. In some states, New York for example, executing a warrant at night requires judicial authority, and failure to obtain that approval is the end of the question. After all, what purpose is served by requiring a neutral magistrate to authorize a search if the cops are free to do as they please regardless?

But Orin throws a monkey wrench into this bright line rule:

The problem is that some magistrate limits on warrants are controlling under the Fourth Amendment but others are not. On one hand, the magistrate’s particular description of the place to be searched is binding. The magistrate makes a determination about the place to be searched based on the probable cause shown in the affidavit, and the warrant itself only authorizes a search of that particular place. The officers can’t just decide to search a different place. That limit is the whole point of the warrant.

On the other hand, in Richards v. Wisconsin, the Supreme Court held that a magistrate’s condition that a warrant could not be executed as a no-knock warrant was irrelevant to whether the subsequent warrant search executed without knocking was reasonable.

While the underlying facts in both cases present some twists that give rise to specific concerns, the question is a standalone (since it will arise, in future cases, without the factual peculiarities that occurred in the underlying cases): is daytime execution the same as, say, the place to be searched or is it more like a “no-knock,” which, like it or not, the Supreme Court held does not per se invalidate a warrant.

Bet you never thought anything could take a really well defined bright-line test like day/night and turn it into an ambiguity. That Kerr is such a trouble maker. From Richards:

In arguing that the officers’ entry was unreasonable, Richards places great emphasis on the fact that the magistrate who signed the search warrant for his hotel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no knock entry. But this fact does not alter the reasonableness of the officers’ decision, which must be evaluated as of the time they entered the hotel room. At the time the officers obtained the warrant, they did not have evidence sufficient, in the judgment of the magistrate, to justify a no knock warrant. Of course, the magistrate could not have anticipated in every particular the circumstances that would confront the officers when they arrived at Richards’ hotel room. These actual circumstances–petitioner’s apparent recognition of the officers combined with the easily disposable nature of the drugs–justified the officers’ ultimate decision to enter without first announcing their presence and authority.

The rationale borrows from the tort concept of an independent intervening event.  The warrant is based on the information available at the time it was sought, and the information was inadequate to support authorization for a no-knock warrant. But if, upon execution, something occurs to alter the situation as presented to the magistrate, the Court held that the officers aren’t bound to the strictures of the warrant, but can adapt to circumstances as they present themselves.

Note the Court’s language, “this fact [that it was a no-knock warrant] does not alter the reasonableness of the officers’ decision.” The inclusion of the word “reasonableness” is key, as it has become the touchstone of the Supreme Court’s Fourth Amendment jurisprudence, where the Warrant Clause was once predominant.

Historically, the law was that a warrantless search was presumptively unconstitutional. While the rubric still gets an occasional nod, the new view is that the search must either be based on a warrant or be reasonable. It’s an absurd reading of the Fourth, since a search warrant can only be lawfully issued upon probable cause, and if post hoc reasonableness is the equivalent of a warrant, then why bother with a warrant at all? Either you’ve got probable cause or you don’t.

The warrant becomes a superfluous piece of paper, seven minutes of a cop’s life he’ll never get back. If, upon review, a judge finds that probable cause didn’t exist, the worst he can do is suppress the evidence seized. It’s no different than if the refused to issue the warrant for lack of probable cause, except the cops got to search any way and seize whatever they found.

But the daytime/nighttime dichotomy doesn’t change. There is no intervening hour that alters the equation from that presented to the neutral magistrate, who determined that a search should be conducted during the day and not at night. But could there be?

Imagine a house under surveillance in anticipation of a search to be conducted at 6 a.m., when the warrant authorizes the search to commence. The cop sees the targets carrying bags of stuff out of the house at 4:37 a.m.  He mutters to himself, “crap, oh crap,” and calls in to his team that they’re removing the things to be searched and seized before the warrant allows for the search to begin. Does this change everything? Does this mean that the warrant, expressly allowing a daytime search after the magistrate refused to authorize a nighttime search, was just turned from a legal document into toilet paper?

Probably. That the police used the “preferred” method of obtaining a warrant doesn’t obviate the exigency exception to the warrant clause. Whenever unanticipated circumstances present themselves in real time in the real world, it gives rise to an opportunity to reassess the situation. Using the information previously known, adding in the newly obtained information, the situation can become an entirely new, different situation than the one upon which the magistrate made his decision.

Much as it sucks to take a wonderful bright line test like day/night execution and turn it into a vagary, Richards may well mean that the daytime mandate of a warrant isn’t a deal breaker when unanticipated circumstances intervene. While the scenario won’t occur regularly, though that doesn’t mean the cops won’t be able to manufacture a story to justify their violation of the limitations of the warrant, it would seem that day/night falls into the same category as no-knock, to be honored except when it’s not.

12 thoughts on “Is Daytime Like No-Knock?

  1. Keith

    If end dates on warrants are still legit, can the magistrate issue 2 warrants: one valid from this morning until evening and another valid tomorrow morning through evening?

    1. SHG Post author

      End dates are usually a matter of weeks, not days, based upon staleness of information upon which probable cause is founded. So a warrant issued today will be good for execution for the next two weeks, not until tomorrow morning.

  2. David Woycechowsky

    ” It’s an absurd reading of the Fourth, [because] a search warrant can only be lawfully issued upon probable cause, and if post hoc reasonableness is the equivalent of a warrant, then why bother with a warrant at all?”

    This. Ten thousand times this. I know you have said it before, but I have nvr seen you say it better.

  3. Thomas Kempton

    If a search occurs in conflict with the wording, why is that not a warrantless search, subject to all the caveats and provisos?
    Exigent circumstances alone do not authorize a search.

    1. SHG Post author

      That’s kinda what this whole post is about, as is Orin’s. Exigent circumstances “alone” is a meaningless phrase. Exigency plus probable cause is, for better of worse, indeed an exception to the warrant requirement.

  4. Patrick Maupin

    > Is Daytime Like No-Knock?

    No. Nighttime is like no-knock.

    Aren’t you the one who wants more logic in his law?

  5. John Hawkinson

    > The cop sees the targets carrying bags of stuff out of the house at 4:37 a.m.

    Aren’t those exigent circumstances?

    1. SHG Post author

      On its own, not necessarily. In combination with the information upon which the warrant was based, probably yes. That’s why it was used as the example.

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