The government secured a search warrant for the defendant’s apartment to search for evidence of controlled substances. The warrant stated that the officers could make the search “at any time in the day or night.” The officers executed the warrant at nighttime and they uncovered a substantial quantity of contraband.
Whether the government must make any special showing for a nighttime entry with a search warrant to search for a controlled substance?
No. The government may rely on 21 U.S.C. § 879, which allows for nighttime entry to search for controlled substances without any special showing.
Federal Criminal Procedure Rule 41 specifically requires that search warrants be served in the daytime (6 a.m. to 10 p.m.) unless a special need to search at night is shown. The government did not make that showing here. However, the Supreme Court ruled that 21 U.S.C. § 879 governed this search as it involved a controlled substance. This statute permits a nighttime search without any special showing by the government. The statute provides that officers may serve a warrant at any time of the day or night if the issuing judge is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time. Title 21 U.S.C. § 879(a) requires no special showing for need of a nighttime search, other than a showing that the contraband is likely to be on the property or person to be searched. The government meets this showing where an affidavit submitted by an officer suggests there was a continuing traffic of drugs from the suspect’s apartment, and a prior purchase through an informant had confirmed that drugs were available.
416 U.S. 430, 94 S. Ct. 1780 (1974)
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