Is the Nighttime the Wrong Time for Searching Houses?: The Supreme Court of Minnesota Reads the U.S. Constitution to Say Yes

By SHERRY F. COLB

Wednesday, Dec. 26, 2007

Earlier this month, the Supreme Court of Minnesota reversed Susan Ranae Jackson's convictions for various drug-related offenses, on the ground that the police search of her home violated both Minnesota law and the Fourth Amendment of the U.S. Constitution.

Though the police did obtain a warrant (and indeed, obtained a warrant expressly authorizing a nighttime search), the affidavit supporting the warrant did not contain an adequate basis for concluding that a nighttime search was necessary to avoid the loss of evidence or to protect the police or the public safety. In the absence of such a showing, the court said, the search that took place was not only unlawful as a matter of Minnesota law but "unreasonable" and therefore unconstitutional as a matter of U.S. constitutional law as well.

Though the U.S. Supreme Court has not spoken directly to this issue, the Minnesota ruling properly calls our attention to the special violation that accompanies a search taking place at night.

The Usual Standard: Probable Cause and a Warrant

The U.S. Supreme Court has long held that prior to searching a home for evidence of crime, police must obtain a warrant supported by probable cause to believe that the evidence in question may be found inside the premises. In general, this requirement does not vary depending on the nature of the crime, the time of the search, or the identity of the suspect. Though all searches and seizures must be "reasonable," the Court has treated the presence of probable cause and a warrant as presumptively demonstrating the reasonableness of a search or seizure, other than in a very limited set of special circumstances.

One such special case involves the use of deadly force. Like an arrest, a shooting constitutes a "seizure" (for the Fourth Amendment regulates seizures of persons as well as property). Nonetheless, a shooting requires more than simple probable cause to believe that the suspect committed a crime; it also requires probable cause to believe that the suspect will harm the police or others if deadly force is not used to apprehend him. This heightened standard reflects the fact that killing represents a significantly greater deprivation than that accompanying a routine arrest.

Another special case involves the use of surgery to "search" a person's body. For this kind of search too, probable cause and a warrant are insufficient to render the invasion "reasonable." At the very least, police must show that they need the evidence secreted in the person's body to prove their case in court.

Other special cases require something short of probable cause and a warrant. When police wish to stop a suspect on the street, for example, they need not have probable cause but only "reasonable suspicion" to believe that the suspect has committed (or is about to commit) a crime. Similarly, to perform a pat-down search of a suspect, the police must simply have reasonable suspicion to believe that the suspect is armed and presently dangerous. Neither probable cause nor a warrant is required in either case.

Reasonableness Balancing

When something more (or something less) than the ordinary "probable cause and a warrant" standard applies, the Court speaks of conducting a "reasonableness" balancing inquiry.

This inquiry is proper because the text of the Fourth Amendment does not literally require either probable cause or a warrant. Rather, what it requires is "reasonableness" (or, more precisely, what it prohibits are "unreasonable" searches and seizures). In practice, this requirement generally translates into a command to the police to "make sure you have probable cause and a warrant," a mandate enforced by suppression of the evidence when police do not comply.

Nighttime Searches

In Jackson, the police entered the home of Susan Ranae Jackson at 9:25pm on December 11, 2003, to search for controlled substances. They brought with them a warrant based on an affidavit that plainly demonstrated probable cause to believe there would be evidence of drug crime in the house. The affidavit failed, however, to provide facts supporting the proposition that a nighttime search, in particular, was necessary, either to preserve evidence or to protect officers or the public safety.

Under Minnesota precedents, state statutory law requires that a nighttime search warrant be supported by "reasonable suspicion" to believe that a nighttime search is necessary. In the absence of this showing, the warrant issued is invalid, and the resulting search is illegal. Even the State conceded in Jackson that the facts in the affidavit supporting the search did not adequately demonstrate necessity.

Going beyond the state's own law, moreover, the Minnesota Supreme Court made a point of saying that the Fourth Amendment to the U.S. Constitution makes similar demands. "[I]n order to be constitutionally reasonable," the court concluded, "nighttime searches require additional justification beyond the probable cause required for a daytime search." The U.S. Supreme Court has not ruled on this issue (and cannot do so in this case, because the court in Jackson rested its holding on independent and adequate state grounds). The Court has, however, used language in a variety of its precedents indicating that nighttime searches are peculiarly offensive to the privacy of their subjects.

What's So Special About the Night?

To interpret the Fourth Amendment in the way that it does, the Minnesota court cites both Supreme Court precedents and the widespread hostility to nighttime searches evident in legal responses to the specific British practices - general warrants and writs of assistance -- that motivated the framing of the Fourth Amendment.

For example, says the court, "[t]welve of the original states and the First Congress enacted statutory prohibitions of nighttime searches," a suggestive figure in gauging the "reasonableness" of a practice. The court goes on to identify the interest in avoiding nighttime searches. It discusses "the more personal nature of nighttime activities that occur in the home," as well as the increased anxiety and vulnerability experienced when one's home is invaded at night, and concludes that one has a special interest in "freedom from intrusion during a period of nighttime repose."

It is easy, of course, to make arguments about the grey areas: When does the period of nighttime repose begin, and when does it end? The court handles such arguments well, suggesting that, in the absence of police awareness that people have not yet entered their "period of nighttime repose" (which includes, among other things, changing into night clothes), police must treat a search between the hours of 8pm and 7am as falling within the protected zone. Of course, if nighttime searches truly are more intrusive, then it is far better to designate a somewhat arbitrary line between day and night, than it is to acknowledge no line at all. To paraphrase an appropos saying, the existence of twilight does not put the lie to a distinction between day and night.

The larger question, however, is whether the court is correct about the night. To examine this question, it is useful to imagine being home in the evening. Darkness has descended, and you are perhaps reading a story to your child, who is in his pajamas. There is a knock at the door, followed quickly by a battering ram and the entry of police with guns. Such an intrusion will be frightening, no matter what time it occurs. But it is likely to be more so at night, when people - adults and children - have begun to let their guard down and unwind in the hours before going to sleep.

Imagine now that it is later at night and that you have actually gone to sleep. A police knock and subsequent noisy entry is likely to be terrifying. In sleeping, one is at one's most vulnerable. The door to the home - if it is ever locked - is likely to be locked at such a time, and any noise or commotion at all is probably unwelcome. People will suffer emotional trauma (and potentially catastrophic consequences of the resulting confusion) of this sort of an invasion. Even a telephone call in the middle of the night is alarming, for it is understood that, in the absence of an emergency, one does not intrude upon people's privacy and tranquility in the night.

Actual Expectations and Objective Reasonableness

The Supreme Court, in Katz v. United States, announced that determining whether police have invaded a reasonable expectation of privacy requires us to ask whether people in fact expect privacy under the circumstances and, if so, whether it is objectively reasonable for them to do so. The search of a home obviously implicates people's reasonable expectations of privacy, and this is why police must have a warrant and probable cause to enter the home.

Yet it is also true - and we can derive this from customary practices in society - that entering another person's home at night, in particular, adds an additional and significant level of intrusion to the mix. The Minnesota Supreme Court should receive ample praise for having expressly recognized that reality as a matter of Fourth Amendment law.


Sherry F. Colb, a FindLaw columnist, is a Visiting Professor at Columbia Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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