If a magistrate issues a warrant for a daytime search, when (if it at all) can it be executed at night?
The U.S. Court of Appeals for the D.C. Circuit handed down an interesting Fourth Amendment decision Friday 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." In this post, I want to explain why the issue is not nearly as simple as the opinion suggests—and why the easy answer might be wrong.
The "Jones" in the case is Antoine Jones, the drug dealer from the famous Supreme Court GPS case, United States v. Jones (2012). Yes, he's back. Jones, who is currently incarcerated, filed a civil suit against officers who executed a search of his home pursuant to a search warrant in 2005. The complaint alleged (among other things) that the officers executed the search at 4:45 a.m. despite the magistrate judge having limited the execution of the warrant to the window of 6 a.m. to 10 p.m. The standard federal warrant form has magistrate judges choose whether the warrant is a daytime warrant (to be executed between 6 a.m. and 10 p.m.) or is a nighttime warrant (to be executed at any hour). The magistrate judge crossed off the part about the warrant being executed at any time, making the warrant a daytime warrant:
Now we get to the ruling: Judge Ginsburg, joined by Judge Wilkins, holds that the magistrate judge's time limitation is binding. If the agents executed the warrant before 6 a.m., they violated the Fourth Amendment.
In this case the magistrate, as clearly indicated on the face of the warrant, affirmatively denied the Defendants permission to search Jones's house before 6:00 AM. The plaintiff alleges the Defendants nonetheless executed the warrant at 4:45 AM. Just as a warrant is "dead," and a search undertaken pursuant to that warrant invalid, after the expiration date on the warrant, Sgro v. United States, 287 U.S. 206, 212 (1932), a warrant is not yet alive, and a search is likewise invalid, if executed before the time authorized in the warrant. If the Defendants executed the warrant when the magistrate said they could not, then they exceeded the authorization of the warrant and, accordingly, violated the Fourth Amendment.
Judge Ginsburg continues:
If the executing officers believed the daytime-only limitation was an improvident limitation or, as in United States v. Katoa, 379 F.3d 1203 (10th Cir. 2004), a mere drafting error, then they had other options, including telephoning the magistrate to authorize nighttime service, as the officers did in Katoa. See also United States v. Voustianiouk, 685 F.3d 206, 216 (2d Cir. 2012) (explaining that a search of a second-floor apartment violated the Fourth Amendment where the warrant authorized a search of the first-floor apartment only and the officers "could have called a magistrate judge on the telephone" on the morning of the search after discovering the suspect resided on the second floor). Simply ignoring the timing limitation was not among the choices lawfully available to the officers in this case.
The court then ruled that qualified immunity should attach because the law on the books in the circuit where the search occurred at the time suggested that warrant's limitation was not binding. Judge Randolph dissented in part, primarily on the ground that the trial court's ruling about the time the search was executed could not be relitigated under collateral estoppel principles. Judge Randolph also expressed doubt about the Fourth Amendment merits, but he didn't go into detail. See Footnote 7 of his dissent.
On the merits, I think this issue is much trickier than Judge Ginsburg suggests. 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. The magistrate in Richards did pretty much the same thing as the magistrate judge in Jones. Required to decide whether the warrant could be executed a particular way (no-knock in Richards, nighttime in Jones), the magistrate crossed off the relevant language that would have allowed the search that way. In Richards, the Supreme Court held that the magistrate's decision was irrelevant, and that the only issue was whether the officers had cause to execute the warrant as a no-knock warrant at the moment they executed the search:
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 question is, is the magistrate judge's decision not to allow a nighttime search in Jones more like a binding particularity determination or more like a non-binding no-knock determination? On one hand, there's a good argument that it's like a non-binding no-knock determination. The question, in both instances, is whether the government had an added justification to make an extra-invasive search reasonable. Richards says that this has to be judged at the time of the search for a no-knock search and that the magistrate decision is irrelevant. It's not clear why a different approach is called for in the case of nighttime searches. On the other hand, a decent argument could be made that the kind of facts that might justify a nighttime search are in general less exigent than the kinds of facts that justify a no-knock search. Maybe the magistrate's no-knock determination is irrelevant because that's a decision that has to be made at the search site while the proper hour of the search can be determined earlier by the magistrate.
Judge Ginsburg argued that executing a daytime warrant at night is controlling because it is akin to executing an expired warrant. But taking as true that relying on an expired warrant is always invalid—the cases don't go quite that far, it seems, see, e.g., United States v. Gerber, 994 F.2d 1556 (11th Cir. 1993) (holding that, under the circumstances, agents did not violate Fourth Amendment when they returned to the search site the day after the warrant expired to continue the search)—there are good arguments for why the timing of daytime warrants should receive different treatment than the timing of expired warrants.
First, the characterization of a daytime warrant as being "not yet alive" before daytime in the sense analogous to an expired warrant being "dead" seems a bit of a stretch. Take the warrant in this case. It was issued on October 22nd, and it commanded officers to conduct the search "on or before" October 31st. The search occurred on October 24th, allegedly at 4:45 a.m. The warrant was already "alive" in the sense that the search had already been authorized. This was not like an anticipatory warrant that was waiting to be triggered by an outside event.
Second, even if you say that a daytime warrant comes "alive" every morning at 6 a.m. and goes "dead" daily at 10 p.m., there's a significant reason to see the determination implicit in the time limits on expired warrants as binding while instead determining the reasonableness of a nighttime search based on the facts present at the time of the search. The expiration date on search warrants is premised on the need for probable cause. As time passes, the probable cause that evidence will be found in the place to be searched will dissipate and the warrant will become "stale." In that sense, the expiration date on a warrant and the particularity of a warrant share a common root. They're both about the underlying probable cause determination that the magistrate has to make when reviewing the warrant application based on the four corners of the affidavit. (This is somewhat undercut by statutory rules imposing an outer bound on how long warrants can last, but the statutory rule is based on the same concern about probable cause.) In contrast, whether a warrant can be executed at night isn't about probable cause at all. Like a no-knock assessment, it's about whether it is reasonable to execute the warrant in a more invasive way based on the facts.
As the D.C. Circuit notes in its qualified immunity discussion, three circuits have adopted a rule like the one it adopts. However, two of those circuits adopted the rule before Richards v. Wisconsin. See O'Rourke v. City of Norman, 875 F.2d 1465 (10th Cir. 1989); United States v. Merritt, 293 F.2d 742 (3d Cir. 1961). The last of the three circuits adopted the rule just last year by relying on the pre-Richards cases and without citing or discussing Richards. See Yanez-Marquez v. Lynch, 789 F.3d 434, 466 (4th Cir. 2015). As I mentioned, maybe there's a way to square those holdings with the Supreme Court's ruling in Richards. But I don't think that way is obvious, and I don't know if it would be persuasive.
I realize that this case and blog post have an abstract quality to them. The court reached out to decide an issue for the plaintiff and then provided no relief to him. Even if the court was wrong on the law, that doesn't mean the search was constitutional, as it's not clear what additional justification was required for a nighttime search or if the officers had it. And given the existing precedent in support of the court's rule, and the small criminal docket in the D.C. Circuit, it's not like this case is likely to have a big effect on law enforcement conduct either way. But the case struck me as raising some conceptually interesting issues—issues that become really important when applied to ex ante search restrictions on computer warrants in particular—so I thought it worth a closer look.