                  United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 96-3979
                                 ___________

United States of America,             *
                                      *
           Appellant,                 *
                                      *   Appeal from the United States
     v.                               *   District Court for the
                                      *   Eastern District of Arkansas.
Richard Charles Berry; Rhonda         *
Sue Berry, *
                                      *
           Appellees.                 *
                                 ___________

                   Submitted:     April 17, 1997

                         Filed: May 6, 1997
                                 ___________

Before BOWMAN, HANSEN, and MURPHY, Circuit Judges.
                               ___________

BOWMAN, Circuit Judge.


     The United States appeals from the decision of the District Court
granting the appellees’ motion to suppress.     We reverse and remand.


     Richard Charles Berry and his wife, Rhonda Sue Berry, of North Little
Rock, Arkansas, were indicted in April 1996 by a federal grand jury on
charges of conspiring to distribute marijuana and to possess marijuana with
intent to distribute, and possessing marijuana with intent to distribute.
See 18 U.S.C. §§ 841, 846 (1994).   The indictments arose from the seizure,
pursuant to a search warrant, of a large quantity of marijuana from a
pickup truck parked at the Berrys’ address and from the Berrys’ residence.
      In October 1994, a person who claimed to have been working as a
courier for the Berrys and for their alleged co-conspirators, ferrying
marijuana from Houston, Texas, to Little Rock, contacted the narcotics unit
of   the   Little   Rock   Police    Department   (LRPD)   to   report    his   illegal
activities.   The courier became a confidential informant and on October 27,
1994, he advised Joe Cook, a detective with the LRPD, that a Ford flatbed
pickup truck equipped with a secret compartment and used for transporting
marijuana was parked at the Berrys’ residence.             Cook knew that the truck
had not been there earlier in the day.               Police surveillance of the
residence was set up at 3:00 p.m. and continued into the night, as a number
of persons visited the residence for short periods of time.              At 12:30 a.m.
on October 28, 1994, Cook took a search warrant application and supporting
affidavit that he had prepared to the home of a Little Rock municipal
judge, who attested to Cook’s signature on the affidavit and authorized the
warrant.    Officers from the LRPD (including Cook), the North Little Rock
Police Department, the state police, and the federal Drug Enforcement
Administration      executed   the    warrant     forty-five    minutes    later,    at
approximately 1:15 a.m.


      The Berrys moved to suppress the marijuana discovered and seized
during the course of the search, alleging several grounds.                      After a
hearing, the District Court granted the motion, holding that the warrant
on its face authorized a night search of only a very limited area, an area
where no contraband was found.        The court ordered the evidence suppressed,
and the government appeals.
      “We may reverse a suppression order not only if it rests on clearly
erroneous findings of fact, but also ‘if the ruling reflects an erroneous
view of the applicable law.’”        United States v. LaMorie, 100 F.3d 547, 552
(8th Cir. 1996) (quoting United States v. Riedesel, 987 F.2d 1383, 1388
(8th Cir. 1993)).




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     In the affidavit in support of the warrant, Cook stated that the
Berrys’ residence “is located on a small dead end street and that the
approach of officers in daylight hours would be readily apparent to persons
in or around the residence.”    Affidavit for Search and Seizure Warrant ¶ 9.
Therefore, Cook continued, “for the safety of the serving officers and for
the protection of the evidence sought, the search and seizure warrant can
only be safely and successfully executed under the cover of darkness.”   Id.
Cook then asked that a warrant “be issued for a search of the residence,
curtilage and vehicles located at [the Berrys’ address],1 and that said
warrant be issued for a search of the residence anytime of the day or
night.”   Id. (footnote added).


     The operative language in the actual warrant, however, does not track
the language in the affidavit.      The warrant directs officers to search
“[t]he residence, curtilage and vehicles” at the Berrys’ address for
various items related to the Berrys’ distribution of marijuana, to seize
and store the evidence, and to make a return of the warrant.      No mention
is made of the time at which the search was to have been executed.     Then,
for reasons unknown (the only explanation that has been offered is a
possible word processing glitch), the warrant wraps up with this paragraph:
“Having found reasonable cause to believe that the said evidence described
herein will be found, you are hereby commanded to search the storage room
located off the carport of the residence located at [the Berrys’ address]
anytime of the day or night.”    On its face, the warrant does not authorize
a night search of any other structures or any vehicles on the property.




     1
      The Berrys in their motion to suppress challenged the
accuracy of the address used in the affidavit and warrant, but
the District Court rejected that ground for suppression during
the hearing. The Berrys have not cross-appealed that decision.

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     In its order, the District Court held that 21 U.S.C. § 879 (1994)
applies to this warrant, and we agree.           See Gooding v. United States, 416
U.S. 430, 439 (1974).       Section 879 reads:


           A search warrant relating to offenses involving
     controlled substances may be served at any time of the day or
     night if the judge or United States magistrate issuing the
     warrant is satisfied that there is probable cause to believe
     that grounds exist for the warrant and for its service at such
     time.

The court concluded that the evidence should be suppressed because the
warrant’s language did not specifically authorize a night search of the
premises.    We hold that it was not required to.


     For search warrants that do not involve controlled substances, night
searches are governed by Federal Rule of Criminal Procedure 41(c)(1):              “The
warrant shall be served in the daytime, unless the issuing authority, by
appropriate provision in the warrant, and for reasonable cause shown,
authorizes    its    execution    at   times   other   than   daytime.”    Given    the
similarities in the language of the rule and of the statute, we believe our
cases interpreting Rule 41(c)(1) are relevant here, even though the search
at issue was made pursuant to § 879.
     We have held that night searches are not per se unconstitutional and
thus “suppression is not automatic” if Rule 41(c)(1) is violated.                United
States v. Schoenheit, 856 F.2d 74, 77 (8th Cir. 1988).                    Instead, we
consider whether the “defendant is prejudiced or reckless disregard of
proper procedure is evident.”          United States v. Bieri, 21 F.3d 811, 816
(8th Cir.), cert. denied, 513 U.S. 878 (1994); see also United States v.
Freeman,     897    F.2d   346,   349-50    (8th   Cir.   1990)    (concluding     that
“nonfundamental” Rule 41 violations, where there is neither prejudice nor
reckless disregard, do not require suppression); Schoenheit, 856 F.2d at
77




                                           -4-
(“the prejudicial error test controls”).      Thus we consider whether the
night search prejudiced the defendants or whether there was reckless
disregard of the proper procedure for a night search by the officials
involved.   If so, then the search is unconstitutional and the fruits of the
search must be suppressed.


     In Bieri, the Court applied the prejudice portion of the test to the
facts of that case, where a night search had been executed without
“appropriate provision in the warrant,” Fed. R. Crim. P. 41(c)(1), and held
that “the warrant was not unconstitutional and the [defendants] suffered
no prejudice because authorization for a night search does not need to be
listed on the warrant.”   Bieri, 21 F.3d at 816.   Surely, if this is the law
as to night searches in violation of Rule 41(c)(1), then it applies with
equal force to alleged § 879 violations, where the plain language of the
statute does not even require “appropriate provision in the warrant.”     We
hold that the Berrys suffered no prejudice from the search.


     Further, there was no “reckless disregard of proper procedure.”      We
think it safe to say that Cook, who prepared the affidavit and the warrant
application, did not go to a judge’s home at 12:30 in the morning for
authorization with the idea that he would execute the warrant the next day,
or on some later day.     Cook obviously felt some exigency, and when he
participated in the search forty-five minutes later, he and his colleagues
clearly believed Cook had sought and received authority for a night search.
We hold that they did not act in bad faith, and therefore did not act in
reckless disregard of proper procedure.     See id. (“because no evidence
exists that the officers acted in bad faith, it follows that there was no
reckless disregard of proper procedure”).
     Even if we are mistaken about the application of the exclusionary
rule to the alleged violation of § 879, and such




                                    -5-
violation is in reality of constitutional magnitude, the decision to
suppress nevertheless may be reversed if the searching officers acted in
good faith in executing the warrant.       See United States v. Leon, 468 U.S.
897, 922 (1984) (announcing good-faith exception to exclusionary rule if
executing officers’ reliance on invalid search warrant is “objectively
reasonable”); see also Massachusetts v. Sheppard, 468 U.S. 981 (1984)
(applying good-faith exception where officer and issuing judge believed
warrant   authorized   search   for   murder    evidence,   but   on   its   face   it
authorized search for drug evidence).          The District Court concluded that
it was not objectively reasonable for Cook and the other searching officers
to rely on the warrant where it so plainly authorized a night search for
only a limited area, and therefore held that the good-faith exception did
not apply.   We review de novo.       See LaMorie, 100 F.3d at 555.
     It is apparent to us that the wording of the concluding paragraph in
the warrant was the result of some sort of clerical error, and that the
language remained in the warrant as it ultimately was authorized and
executed because of the inattention of Cook and the issuing judge.           We know
this from examining the affidavit, which clearly anticipated a night search
of all areas, and the first part of the warrant, where all areas to be
searched are listed.     Notably, no mention is made of a “storage room
located off the carport” anywhere in the affidavit (which is more than five
pages long and mentions numerous times the Ford flatbed truck where the
bulk of the marijuana was found) or in the first page of the warrant.           That
area is not specifically identified at all until the second page and final
few lines of the warrant.   Moreover, Cook not only prepared the affidavit
and the warrant, with the knowledge that he was seeking authority for a
night search of the entire premises, but he also participated in executing
the warrant.    “This fact is significant because in assessing whether
reliance on a




                                        -6-
search warrant was objectively reasonable under the totality of the
circumstances, it is appropriate to take into account the knowledge that
an officer in the searching officer’s position would have possessed.”
United States v. Curry, 911 F.2d 72, 78 (8th Cir. 1990), cert. denied, 498
U.S. 1094 (1991).      Given the circumstances of the warrant’s preparation and
authorization, we have no difficulty in concluding that Cook reasonably
believed he had authority for a night search of all areas listed in the
affidavit.     In addition, it is important to recall here that “the
exclusionary rule is designed to deter police misconduct rather than to
punish the errors of judges.”     Leon, 468 U.S. at 916.    The municipal judge
signed both the affidavit and the warrant and, as the final reviewing
authority, he must shoulder the ultimate responsibility for the clerical
error in the warrant.     See Curry, 911 F.2d at 78.    Thus, the purpose of the
exclusionary rule is not served by suppression of the evidence seized
pursuant to the search at the Berrys’ address.         See id.


     We conclude that it was objectively reasonable for Cook and the other
executing officers to believe that they had authority for a night search.
Therefore, even if the search were unconstitutional, the evidence would be
admissible under the good-faith exception to the exclusionary rule.


     The order granting the Berrys’ motion to suppress is reversed, and
the case is remanded to the District Court.


     A true copy.


             Attest:


                    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT




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