                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-1661

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                             Luis Rodolfo Rojas-Santos,
                                     Appellant.

                              Filed December 7, 2015
                                     Reversed
                                Cleary, Chief Judge
                             Dissenting, Hooten, Judge

                           Hennepin County District Court
                             File No. 27-CR-13-39983


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Thomas Caturia (certified student attorney), Minneapolis, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Adam Chandler (certified
student attorney), St. Paul, Minnesota (for appellant)


      Considered and decided by Hooten, Presiding Judge; Cleary, Chief Judge; and

Halbrooks, Judge.
                        UNPUBLISHED OPINION

CLEARY, Chief Judge

       On appeal from his conviction of first-degree controlled substance crime (sale),

appellant seeks review of a district court order denying his motion to suppress evidence

on the basis that the nighttime search of his home was unlawful. Because the district

court erred in finding reasonable suspicion to authorize a nighttime search, we reverse.

                                         FACTS

       On December 4, 2013, the Minneapolis police applied for a nighttime search

warrant to search appellant’s home. The police officer’s supporting affidavit stated that a

confidential reliable informant (CRI) had been in the residence within the previous 72

hours and had seen a large quantity of cocaine or crack cocaine. The CRI gave a specific

description of a person named “Chilango” and said that Chilango sells cocaine out of the

house. The CRI also told police that “Chilango only sells out of [the house] after [6:00

p.m.] and that he sells throughout the night.” Before the officer applied for the search

warrant, he surveilled the house and saw several vehicles pull up to the house over a

period of time. Each time a vehicle arrived, someone would get out of the vehicle, go

into the house for a few minutes, and come out a short time later. According to the

officer, this behavior is common at houses where narcotics are sold. The officer’s search

warrant application stated that a nighttime search was “necessary to prevent the loss,

destruction or removal” of evidence because the CRI conducted a controlled buy after

8:00 p.m. and the CRI said that Chilango “conducts his narcotics sales after 2000 hours




                                             2
and late into the night.” No explanation was given in the application for the difference

between the time sales began as stated in the affidavit (only after 6:00 p.m.) and the time

sales began as suggested in the application (after 8:00 p.m.).

       A judge authorized the search warrant on the evening of December 4, 2013 at

8:24 p.m. Police executed the warrant that night at approximately 9:30 p.m. Officers

found over a kilogram of cocaine, miscellaneous drug paraphernalia, a handgun holster, a

bulletproof vest, and $2,765 in cash in the house. Appellant—who was identified as

“Chilango”—was arrested and charged with first-degree sale of a controlled substance in

violation of Minn. Stat. § 152.021, subd. 1(1) (2012).

       Appellant moved to suppress the evidence obtained from the search, arguing that

the search warrant application did not show that it was necessary to conduct a nighttime

search.   The district court denied the motion.          The district court considered the

information from the CRI, found that drug sales occurred at the house chiefly at night,

and determined that “[i]t was reasonable for [the issuing judge] to infer that the narcotics

would be lost, destroyed or removed from the residence before the next morning because

‘Chilango’ only sold narcotics at night.” The district court concluded that the search

warrant application established reasonable suspicion to believe that a nighttime search

was necessary to preserve evidence.

       To preserve the suppression issue for review, appellant agreed to a stipulated-facts

trial under Minn. R. Crim. P. 26.01, subd. 4. The district court found appellant guilty and

sentenced him to 74 months in prison. This appeal followed.




                                             3
                                      DECISION

       Minnesota law provides:

              A search warrant may be served only between the hours of
              7:00 a.m. and 8:00 p.m. unless the court determines on the
              basis of facts stated in the affidavits that a nighttime search
              outside those hours is necessary to prevent the loss,
              destruction, or removal of the objects of the search or to
              protect the searchers or the public. The search warrant shall
              state that it may be served only between the hours of 7:00
              a.m. and 8:00 p.m. unless a nighttime search outside those
              hours is authorized.

Minn. Stat. § 626.14 (2012). The statute “specifically aims to prevent police intrusion

into the personal and private activities of individuals in their homes at night unless the

police articulate facts sufficient to support their intrusion.” State v. Jackson, 742 N.W.2d

163, 173 (Minn. 2007). The statute “seems to require . . . some showing to the magistrate

that the warrant can only be executed successfully in the nighttime.’’ State v. Bourke,

718 N.W.2d 922, 926 (Minn. 2006) (emphasis added) (quotation omitted).

       The rationale for section 626.14 is to “protect the public from the abrasiveness of

official intrusions during the night.” Jackson, 742 N.W.2d at 170 (quotation omitted).

The “special status of a person’s home at night” is reflected in the common law and in

early American statutes barring such searches. Id. at 169-170. Section 626.14 “appears

to represent a codification and application of a legal history that illustrates an aversion to

nighttime searches.” Id. It allows nighttime searches only under statutorily specified

conditions. “A search warrant may be served only between the hours of 7:00 a.m. and

8:00 p.m. unless the court determines on the basis of facts stated in the affidavits that a




                                              4
nighttime search outside those hours is necessary . . . .” Minn. Stat. § 626.14 (emphasis

added).     In 1992, the legislature amended the search warrant statute to clarify that

nighttime hours begin at 8:00 p.m. and end at 7:00 a.m. 1992 Minn. Laws ch. 569, § 29,

at 1940. The statute previously read “[t]he search warrant shall state that it may be

served only in the daytime unless a nighttime search is authorized.” Id. The inclusion of

the phrase “outside those hours” in the amended statute emphasizes that any search that

takes place after 8:00 p.m. or before 7:00 a.m. is a nighttime search.

       Before a nighttime search can be authorized under section 626.14, the application

for the search warrant “must establish at least a reasonable suspicion that a nighttime

search is necessary to preserve evidence or to protect officer or public safety.” Bourke,

718 N.W.2d at 927. The standard for reasonable suspicion is “not high” but requires

“something more than an unarticulated hunch.” Id. (quotation omitted). To meet the

standard, “the officer must be able to point to something that objectively supports the

suspicion at issue.” Id. (quotation omitted). On review, we give great deference “to the

issuing judge’s determination of whether a nighttime search warrant should be authorized

under Minn. Stat. § 626.14. The issuing judge’s determination must be based on the

factual allegations contained in the affidavit in support of the warrant application and the

reasonable inferences to be drawn therefrom.” Bourke, 718 N.W.2d at 928 (quotation

omitted).

       Here, the factual allegations in the supporting affidavit and the reasonable

inferences drawn from them do not establish a reasonable suspicion that a nighttime




                                             5
search was necessary to preserve evidence.1 The district court characterized apparently

conflicting statements in the search warrant application and affidavit regarding the timing

of narcotics sales as “typographical inconsistencies.” The district court explained, “At

one point in the application, [the officer] attests that ‘Chilango’ only sells after 6:00 p.m.

and at another the application states that ‘Chilango’ only sells after 8:00 p.m.” This

analysis misstates the factual allegations in the affidavit and application. The affidavit

states, “Chilango only sells out of this address after 1800 hours and . . . throughout the

night” while the application for a nighttime search states that “Chilango conducts his

narcotics sales after 2000 hours and late into the night.” The application does not say that

appellant only sells after 2000 hours. It says that appellant sells after 8:00 p.m. and late

into the night. The affidavit says that appellant only sells drugs after 6:00 p.m. The

district court’s interpretation of the affidavit and application was therefore in error. The

supporting affidavit unambiguously indicates that there are two daytime hours during

which narcotics sales occur at the house—between the hours of 6:00 p.m. and 8:00 p.m.

There is no explanation as to why the warrant could only be executed after that time,




1
  The state does not allege that officer or public safety was at issue, as there was no
evidence of weapons at the house, or of security cameras that would warn occupants of
the arrival of police officers, or of other circumstances that would create a dangerous
situation to public safety or to police officers executing the warrant. See State v. Wasson,
615 N.W.2d 316, 319, 322-23 (Minn. 2000) (police requested and received permission to
execute a no-knock, nighttime search warrant in the interest of officer safety where
weapons had been found during a previous search of the same residence). We therefore
discuss only whether the need to preserve evidence supported the nighttime search.


                                              6
during nighttime hours. The application and affidavit failed to show that it was necessary

to conduct a nighttime search.2

      The district court concluded that, notwithstanding what it saw as “typographical

inconsistencies,” factual allegations in the search warrant application showed that “any

potential narcotics were stored in and sold from the residence chiefly at night.” The

district court held that this supported a reasonable inference that a nighttime search was

necessary to preserve evidence that would otherwise be lost or removed by the next

morning due to a night of sales. This reasoning fails to explain why officers could not

execute a warrant between 6:00 p.m. and 8:00 p.m.

      Factual allegations in the affidavit and application support the inference that drugs

were sold at the residence chiefly at night. But when considered together, the factual

allegations do not support the inference that the warrant could only be executed

successfully at night, or that a nighttime search was necessary to preserve evidence. The

CRI reported seeing narcotics at appellant’s residence in the 72 hours before law

enforcement applied for a warrant. The affidavit does not indicate whether the CRI

viewed the drugs during daytime or nighttime hours. The officer’s affidavit explains that

he conducted surveillance within 72 hours before applying for the warrant and “saw



2
  It appears the officer sought a warrant after 8:00 p.m. without an explanation as to why
the application was not submitted the day before, or earlier in the day, or as to why the
warrant had to be executed that night. We do not attribute any ulterior motive to this
officer in seeking a warrant after 8:00 p.m. We are concerned, however, that the
authorization of a nighttime search not become a fait accompli based simply on the
submission of an application after 8:00 p.m., when any search authorized becomes a
nighttime search.


                                            7
several vehicles pull up to the address over a period of time.” The officer believed that

the behavior of the people who got out of each vehicle and went in and out of the house

indicated that narcotics sales were likely occurring in the house. The officer did not say

whether his surveillance occurred during daytime or nighttime hours.          The warrant

application also did not state on what date the controlled buy occurred. Because the

controlled buy might have happened the day before, or two days before, or a week before

police applied for the search warrant, it does not support an inference that immediate

action was necessary to preserve evidence on the evening of December 4, 2013. If

officers were concerned about preserving as much evidence as possible, it would be best

to conduct the search closer to 6:00 p.m. when—based on the facts alleged in the

application and affidavit—it is likely that appellant would be present at his residence,

fewer sales would have already occurred, and as much evidence as possible would be

intact. Even under our deferential standard, the state has not met its burden of showing at

least a reasonable suspicion that a nighttime search was necessary. Officers therefore

executed a search warrant with an invalid nighttime authorization when they searched

appellant’s residence.

       This court must determine whether evidence seized in the invalid nighttime search

must be suppressed. “[S]erious violations which subvert the purpose of established

procedures will justify suppression.” State v. Cook, 498 N.W.2d 17, 20 (Minn. 1993).

The Minnesota Supreme Court has held that where police

              execute a search warrant with an invalid nighttime
              authorization, and with no knowledge that defendant had not



                                            8
             yet entered a period of nighttime repose . . . the evidence
             seized in the search [must] be suppressed, both because the
             entry subverted the basic purpose of the statute regulating
             nighttime searches and the entry violated the defendant’s
             rights to be free from unreasonable searches and seizures
             under the United States and Minnesota Constitutions.

State v. Jordan, 742 N.W.2d 149, 153 (Minn. 2007).

      In Jackson, the supreme court defined the privacy interest that restrictions on

nighttime searches are designed to protect as the “period of nighttime repose.” 742

N.W.2d at 171 (emphasis omitted). “Repose” refers to “certain private activities that

occur in the home” at night, and which are “customary nighttime activities.”           Id.

Whether occupants of a home have entered their period of nighttime repose is a fact-

intensive inquiry. See id. (discussing facts relevant to this determination). Depending on

the circumstances surrounding the search, it may be more or less apparent to officers

whether occupants are engaged in customary nighttime activities. Id. In reviewing

whether an invalid nighttime search intruded upon an occupant’s protected period of

repose, the supreme court has held that such a search is not a serious violation of Minn.

Stat. § 626.14 where officers knew immediately before executing a warrant that

occupants had not entered nighttime repose. State v. Lien, 265 N.W.2d 833, 841 (Minn.

1978). In Lien, an invalid nighttime search occurred, but in the brief period of time

before officers executed the search warrant, they observed several people going in and

out of the apartment to be searched, they watched the defendant’s car arrive and observed

him entering the apartment, they knew that the defendant was fully clothed, and when

they approached the building they observed that the apartment door was slightly open.



                                            9
Id. at 836, 841. Law enforcement officers did not make similar observations immediately

prior to execution of the nighttime search warrant in this case.

       Minn. Stat. § 626.14 also protects “a homeowner’s interest in safeguarding against

unauthorized intrusion of a home that is occupied by resident members of his family and

social guests.” Jordan, 742 N.W.2d at 154. In Jordan, the supreme court noted that

officers entered the home without knowing “whether [the homeowner] or any other

occupants were sleeping, were engaged in particularly personal behavior which they were

attempting to keep private, or were in their nightclothes.” Id. at 153. This analysis

suggests that it is important to consider what officers in this case knew about other

occupants of appellant’s residence, in addition to the target of the search. There is no

indication that officers knew that occupants had not already entered a period of nighttime

repose at the time officers executed the warrant.

       The state argued, and the district court found, that the warrant was executed at

approximately 9:30 p.m. on December 4, 2013. This is a nighttime search. In Jackson,

the supreme court held that entry into a home at 9:25 p.m. on December 11 fell within the

period of nighttime repose, as it had been dark for several hours. 742 N.W.2d at 177. In

the instant case, the district court found that when officers executed the search warrant,

they knocked, announced themselves, and then saw appellant sitting on the living room

couch. Critically, however, the officers did not see appellant until they entered the

residence with the warrant. As a result, the officers’ knowledge that appellant had not yet

entered a period of nighttime repose was gained only after execution of the search




                                             10
warrant and they had no way to know that appellant, his family members, or others were

not in the period of nighttime repose before execution of the warrant. At the time officers

executed the search warrant, they only had the expectation that appellant would be awake

and active, because they believed that drug sales occurred at appellant’s residence

throughout the night. Such an expectation is not the equivalent of knowledge. See Lien,

265 N.W.2d at 841 (holding that an invalid nighttime search is not a serious violation of

Minn. Stat. § 626.14 where officers knew, based on observations they made at a

residence just before executing a search warrant, that occupants of the residence had not

entered nighttime repose).

       In sum, the application for the search warrant and supporting affidavit did not

provide at least a reasonable suspicion that a nighttime search was necessary to preserve

evidence. The invalid nighttime search subverted the purpose of Minn. Stat. § 626.14,

requiring suppression of the evidence seized during the search. The district court erred in

denying appellant’s motion to suppress the evidence arising from the search. Because

our conclusion on the nighttime search issue is dispositive, we decline to address the

remaining issue of dispositional departure.

       Reversed.




                                              11
HOOTEN, Judge (dissenting)

       I respectfully dissent. Here, there is no dispute that there was probable cause for

issuance of the search warrant; the only issue is whether the issuing judge validly

authorized a nighttime entry into appellant’s residence.1 Because the warrant application

contained articulable facts that established at least a reasonable suspicion that a nighttime

search was necessary to preserve evidence, I would conclude that the search warrant was

valid, and, even if it was not valid, suppression of the evidence of contraband would not

be required under the facts of this case.

       All that is required for a nighttime search under Minnesota law is that the

application for the search warrant “must establish at least a reasonable suspicion that a

nighttime search is necessary to preserve evidence or to protect officer or public safety.”

State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006).            The standard for reasonable

suspicion is “not high” but requires “something more than an unarticulated hunch.” Id.

(quotations omitted).    To meet the standard, “the officer must be able to point to

something that objectively supports the suspicion at issue.” Id. (quotation omitted). “The

issuing judge’s determination must be based on the factual allegations contained in the

affidavit in support of the warrant application and the reasonable inferences to be drawn

therefrom.” Id. at 928 (quotation omitted).




1
  Moreover, this case does not involve a knock and announce issue. In the search warrant
application, the requesting officer did not seek authorization for an unannounced entry
into appellant’s residence. Upon arriving at the residence, the officers knocked on the
door and announced their presence, and one of the occupants answered the door.
                                              D-1
      In Bourke, the Minnesota Supreme Court concluded that appellate courts should

give “great deference” to an issuing judge’s determination of whether to authorize a

nighttime search warrant. Id. at 927–28. The supreme court came to this conclusion by

using the same rationale that is used for giving great deference to an issuing judge’s

determination of probable cause for a search warrant. Id. “The primary rationale for

giving the issuing judge ‘great deference’ is to avoid setting such a high standard for

warrants that the police would be discouraged from seeking the warrant in the first

place.” Id. To ensure that police are not discouraged from seeking a warrant, “the

resolution of doubtful or marginal cases should be largely determined by the preference

to be accorded warrants.”     State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999)

(quotations omitted).

      As our supreme court recognized in State v. Miller, 666 N.W.2d 703, 714 (Minn.

2003), an issuing judge may draw reasonable inferences from a search warrant

application based upon common sense and the information provided regarding the nature

and circumstances of a crime. Quoting Illinois v. Gates, 462 U.S. 213, 231–32, 103 S.

Ct. 2317, 2328–29 (1983), the court in Miller observed:

                    Long before the law of probabilities was articulated as
             such, practical people formulated certain common-sense
             conclusions about human behavior; jurors as factfinders are
             permitted to do the same—and so are law enforcement
             officers. Finally, the evidence thus collected must be seen
             and weighed not in terms of library analysis by scholars, but
             as understood by those versed in the field of law enforcement.
             As these comments illustrate, probable cause is a fluid
             concept—turning on the assessment of probabilities in
             particular factual contexts—not readily, or even usefully,
             reduced to a neat set of legal rules.

                                          D-2
Id.

      Here, because appellant was selling narcotics out of his home during the nighttime

hours, there was a reasonable—and common-sense—inference that a significant quantity

of the narcotics would be diminished in part or whole during the nighttime hours. In his

application for a nighttime search warrant, the police officer did not rely on an

“unarticulated hunch” or boilerplate language, but pointed to specific facts given to him

by a confidential reliable informant (CRI). The officer noted that the CRI had reported

that a 22-year-old Hispanic male named “Chilango” sold cocaine or crack cocaine from

his residence and that the CRI had seen a large quantity of the drugs in Chilango’s house

within the 72 hours prior to the application for the search warrant. The CRI also reported

that Chilango sold the narcotics during the night, beginning as early as 6:00 p.m. and

continuing “throughout the night.” The officer also stated that the CRI made a controlled

buy from Chilango at the residence after 8:00 p.m. In describing his surveillance of the

residence, the officer observed that over a period of time, “several” vehicles would drive

up; one person would get out of each vehicle, go into the house, and then come out after

only a few minutes; and then the vehicle would leave. The officer reported that based

upon his experience as a narcotics investigator, this observation was “very common with

houses that are dealing narcotics.” Based upon these specific facts, the officer requested

authorization to conduct a nighttime search “to prevent the loss, destruction or removal

of” the narcotics, noting specifically that the CRI’s controlled buy was conducted after




                                           D-3
8:00 p.m. and the CRI’s report that Chilango conducted his narcotics sales after 8:00 p.m.

and “late into the night.”

       The majority correctly notes that these facts indicate that appellant sold drugs

during daytime hours between 6:00 p.m. and 8:00 p.m. But, under the stipulated facts,

the issuing judge authorized the search warrant at 8:24 p.m., 24 minutes after the

statutory deadline for a daytime search. It was reasonable to infer from these facts that if

police had waited until 7:00 a.m. the next morning or 6:00 p.m. the next night to execute

the search warrant, both of which would constitute a daytime search under Minn. Stat.

§ 626.14, appellant would have sold at least some, if not all, of the narcotics throughout

the night, and evidence would have been lost. Giving great deference to the issuing judge

and the preference to be accorded search warrants, the search warrant application

established at least a reasonable suspicion that a nighttime search was necessary to

preserve evidence.

       The majority fails to identify even one reported Minnesota case that supports the

invalidation of the nighttime search warrant, and the suppression of the evidence, under

these circumstances. In Bourke, our supreme court noted that the validity of a nighttime

search warrant may be based upon inferences that may be reasonably drawn from the

application. 718 N.W.2d at 928. In rejecting Bourke’s argument that the search warrant

was a product of boilerplate language, the supreme court determined that the statement

that Bourke was at large was sufficient to support a reasonable inference that he could

return and destroy evidence of his methamphetamine manufacturing operation—even

though such reasonable inference was not clearly articulated in the search warrant. Id. at

                                            D-4
928–29. Here, the reasonable inference that can be drawn from the warrant application is

that narcotics would be sold from the residence throughout the night, and evidence of the

quantity, and perhaps even the existence, of the narcotics would be lost if the nighttime

search warrant was not immediately issued.

      And, State v. Jackson, 742 N.W.2d 163 (Minn. 2007), and State v. Jordan, 742

N.W.2d 149 (Minn. 2007), are easily distinguishable. In both of those cases, even the

state agreed that the nighttime search warrants in those cases were invalidly issued

because there was no statement of facts made upon which reasonable inferences could be

drawn as to the necessity of a nighttime search. Jackson, 742 N.W.2d at 167–68; Jordan,

742 N.W.2d at 151, 153.

      Cases from other jurisdictions have upheld nighttime searches when there was

particularized evidence of narcotic drug sales that occurred late at night or in the early

morning hours. See, e.g., United States v. Randle, 196 Fed. Appx. 676, 679–80 (10th Cir.

2006) (upholding nighttime search where affidavit in support of warrant application

stated that defendant sold narcotics only after 10:00 p.m.); State v. Jackson, 571 P.2d

266, 268 (Ariz. 1977) (upholding nighttime search where affidavit in support of warrant

application stated that defendant was selling marijuana “during all times of the day and

night”); State v. Eichorn, 694 P.2d 1223, 1227–28 (Ariz. Ct. App. 1984) (finding good

cause for nighttime search for narcotics where affidavit alleged two nighttime narcotic

drug sales); People v. Govea, 235 Cal. App. 2d 285, 298–99 (Cal. Dist. Ct. App. 1965)

(finding good cause for nighttime search when investigation and surveillance had

established that nighttime narcotic sales had taken place); Dunfee v. State, 346 A.2d 173,

                                           D-5
175–76 (Del. 1975) (upholding nighttime search where affidavit stated that informant

indicated defendant was selling drugs from his home, anonymous calls reported

suspicious activity from 8:00 p.m. to midnight, and informant made controlled buy);

State v. Fowler, 674 P.2d 432, 439–40 (Idaho Ct. App. 1983) (finding good cause for

nighttime search where surveillance had established that “several” nighttime controlled

substance sales had occurred).

       Here, the issuing judge could reasonably infer from the fact that appellant made a

nighttime sale to a CRI after 8:00 p.m. and conducted his narcotic sales throughout the

night that there was a reasonable suspicion that the quantity of the narcotics would be

lessened or eliminated over the course of a night. Under our deferential standard of

review, and given the facts and reasonable inferences available to the issuing judge, I

would hold that the state met its burden of showing that there was at least a reasonable

suspicion that a nighttime search was necessary. The district court, in providing the

“great deference” that is given to an issuing judge, did not err in its conclusion that the

nighttime search warrant was valid. Bourke, 718 N.W.2d at 927–28.

       Even if the nighttime authorization were invalid, suppressing the evidence

obtained in the search is not warranted under these facts. The core purpose behind Minn.

Stat. § 626.14 was a historic aversion to nighttime searches. Jackson, 742 N.W.2d at

170. The “statute was intended to protect against, at a minimum, the indignity of being

roused out of bed in the middle of the night and made to stand by in nightclothes.” Id.

The interest protected by the statute is the “freedom from intrusion during a period of

nighttime repose.” Id. at 171 (emphasis omitted). “[T]he test for whether suppression is

                                           D-6
required is whether the violation of the statute was a serious one that subverted the

purpose of the statute.” Jordan, 742 N.W.2d at 153. “[T]he critical inquiry is what the

officers know at the time of entry.” Id. at 154. If the officers know that they will not be

intruding on a period of nighttime repose, the evidence may be admissible. Id. But, the

evidence should be suppressed if the officers do not know whether they will be intruding

on a period of nighttime repose. Id.

       The majority concludes that the officers here had only an “expectation” that

appellant would not be in a period of nighttime repose when they executed the search

warrant.   But, on these stipulated facts, the police officers had more than a mere

expectation that appellant would not be in repose at the time the search warrant was

executed. Based upon their investigation, the officers knew before they executed the

warrant that appellant sold narcotics late into the night and throughout the night. They

executed the warrant at approximately 9:30 p.m., a reasonable hour when most people are

still awake and when a 22-year-old man who sells drugs late into the night would

certainly be awake. See State v. Lien, 265 N.W.2d 833, 836, 841 (Minn. 1978) (noting

that a warrant executed shortly after 9:00 p.m. was executed at “a reasonable hour when

most people are still awake”), overruled on other grounds by Richards v. Wisconsin, 520

U.S. 385, 117 S. Ct. 1416 (1997).2 Jackson defined repose to include “certain private

activities” that customarily occur at night. 742 N.W.2d at 171. Repose is also defined as

2
  Although Lien was decided before the legislature amended Minn. Stat. § 626.14 to
define nighttime as 8:00 p.m. to 7:00 a.m., the amendment of this statute did not affect
the Lien court’s reasonableness determination, for Fourth Amendment purposes, that
people tend to be awake shortly after 9:00 p.m. See 1992 Minn. Laws ch. 569, § 29, at
1940.
                                           D-7
“[c]essation of activity.” Id. (alteration in original) (quoting Black’s Law Dictionary

1327 (8th ed. 2004)). But, appellant did not cease his activity at night. Instead, rather

than sleeping or engaging in private activities associated with repose, the officers had

evidence that it was during the night that appellant engaged in his commercial enterprise

of selling drugs to the public. Under these circumstances, any supposed violation would

not be a serious one that subverted the purpose of the statute.            Ironically, given

appellant’s history of conducting narcotic sales throughout the night, it is more likely that

had the search warrant been executed the following morning at 7:00 a.m. as a daytime

warrant, appellant indeed would have been “roused out of bed” and “made to stand by in

nightclothes.” Id. at 170.

       Contrary to appellant’s assertion, there was also no constitutional violation of his

Fourth Amendment rights. In Jackson, the supreme court concluded that a “search of a

home at night is a factor to be considered in determining whether a search is reasonable

under the Fourth Amendment.” Id. at 177. The court ruled that police officers violated

Jackson’s constitutional rights “when, without information indicating that Jackson had

not yet entered a period of nighttime repose, they entered her home at 9:25 p.m. in the

wintertime—December 11—with a search warrant that invalidly authorized a nighttime

entry.” Id. This case is distinguishable from Jackson. The officers here had a warrant

that validly authorized a nighttime entry and, unlike in Jackson, these officers had




                                            D-8
information that they would be executing the warrant at a time when appellant would not

be sleeping, but would be actively engaged in the sale of narcotics.3

       Accordingly, I conclude that the district court did not err in determining that the

nighttime search warrant was valid because there was a reasonable inference that a

nighttime search was necessary to preserve evidence of narcotics. Even if the nighttime

search warrant was invalid, under the facts of this case, the execution of the warrant did

not seriously subvert the basic purpose of Minn. Stat. § 626.14 because it was executed at

a time when the police officers were aware that appellant was not in repose, but was

conducting sales of narcotics.    Finally, there is no showing that appellant’s Fourth

Amendment rights were violated. The district court should be affirmed in its denial of

appellant’s motion for suppression.




3
  Notably, if this case had been brought in federal court, the nighttime aspect of this
search for narcotics would not even be an issue. The Federal Rules of Criminal
Procedure define daytime as the hours between 6:00 a.m. and 10:00 p.m. Fed. R. Crim.
P. 41(a)(2)(B). The search here would have been within the federal definition of
daytime. Furthermore, federal law allows search warrants relating to controlled
substance offenses to be served “at any time of the day or night.” 21 U.S.C. § 879
(2012). In rejecting a Fourth Amendment challenge to this federal statute, the United
States Supreme Court in Gooding v. United States declared that nighttime searches for
narcotics are treated differently from other searches and concluded that 21 U.S.C. § 879
“requires no special showing for a nighttime search, other than a showing that the
contraband is likely to be on the property or person to be searched at that time.” 416 U.S.
430, 458, 94 S. Ct. 1780, 1794 (1974). The Supreme Court noted that in cases involving
searches for controlled substances, “Congress has considered the need for privacy to be
counterbalanced by the public need for more effective law enforcement.” Id. at 453–54,
94 S. Ct. at 1792. As was explained by Fourth Circuit in United States v. Rizzi in its
rejection of the constitutional challenge to the federal statute allowing nighttime searches
for narcotics, the Supreme Court “has never held that the Fourth Amendment prohibits
nighttime searches.” 434 F.3d 669, 674–75 (4th Cir. 2006).
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