Nighttime Execution of Warrants: An Analysis Under Wilson v. Arkansas and Virginia v. Moore

54 Pages Posted: 28 Jan 2017

See all articles by Mallory Bland

Mallory Bland

University of Mississippi - School of Law

Date Written: January 24, 2017

Abstract

The daytime warrant requirement has become a surprisingly complex issue since the circuit courts have been unable to come to any cohesive conclusion on the issues surrounding the requirement. Most of the circuit courts have refused to acknowledge the substantive Fourth Amendment question, instead finding a separate Fourth Amendment violation in the violation of the terms of the warrant or the local rules governing warrants. This Article provides an original case collection regarding the circuit split surrounding the issue and is the first scholarly article to attempt to answer both Fourth Amendment and exclusionary rule questions, thereby paving a path for the Supreme Court to ultimately decide these issues. Appendix A of this Article also provides an overview of each state’s statutes, rules of criminal procedure, and/or case law regarding the time at which warrants may be executed in that state.

Since the daytime warrant requirement was derived from the same common law interests of protecting people, property, and privacy as the knock and announce rule, it follows that a search executed at nighttime under a valid daytime warrant would fall under the same exclusionary rule attenuation as the knock and announce rule. This Article argues that the daytime warrant requirement should follow the same path as Wilson v. Arkansas, Richards v. Wisconsin and Hudson v. Michigan in finding that the daytime executions of warrants are required by the Fourth Amendment, subject to certain exceptions, but no exclusionary rule consequences follow from violations of the requirement.

For the courts that have decided not to answer the substantive Fourth Amendment violation and instead found a separate Fourth Amendment violation in the terms of the warrant or violation of the local laws governing warrants, Virginia v. Moore and the courts finding in Richards v. Wisconsin should govern that analysis. Violating local rules governing purely procedural requirements in warrants should not invoke the exclusionary rule.

Keywords: Wilson v. Arkansas, Richards v. Wisconsin, Hudson v. Michigan, Virginia v. Moore, nighttime, execution, daytime, warrant, exclusionary rule, circuit split

Suggested Citation

Bland, Mallory, Nighttime Execution of Warrants: An Analysis Under Wilson v. Arkansas and Virginia v. Moore (January 24, 2017). Available at SSRN: https://ssrn.com/abstract=2905358 or http://dx.doi.org/10.2139/ssrn.2905358

Mallory Bland (Contact Author)

University of Mississippi - School of Law ( email )

Lamar Law Center
P.O. Box 1848
University, MS 38677
United States

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