Opinion
Case No. 2:02-CR-524W
March 3, 2003
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
This matter is before the court on Defendant's Motion to Suppress. On December 12, 2002, the court conducted an evidentiary hearing on the motion. Defendant Paula Paka Katoa ("Katoa") was present with his counsel, Rebecca C. Hyde. The government was represented by Veda M. Travis. At the conclusion of the hearing, the court ordered a transcript as well as supplemental briefing from the parties. After thorough review and consideration of the pleadings submitted by the parties and the testimony presented at the evidentiary hearing on the motion to suppress, the court enters the following memorandum decision and order.
FACTUAL BACKGROUND
The court finds the relevant facts as follows. Darrell Dain is a narcotics detective with the West Valley City Police Department. (Tr. at 5.) Dam has been a narcotics detective for four years. (Tr. at 5-6.) On September 12, 2001, Detective Dain drafted an affidavit for a search warrant for 218 East 4500 South, apartment #12. (Tr. at 6.) In the affidavit, Dain requested that the search warrant be approved for anytime service, day or night. (Tr. at 8; Pl's Ex. 1 at 4.) The affidavit further requested that the search warrant be authorized as "no knock." (Tr. at 8; Pl's Ex. 1 at 4.) Dam included information in the affidavit that he believed justified the issuance of a "no knock" warrant that could be executed at night. (Tr. at 8.)
Reference to the transcript of the evidentiary hearing conducted on December 12, 2002, will be cited as "Tr. at."
At the time Detective Dain drafted the affidavit, he also prepared a search warrant. (Tr. at 10.) In preparing the search warrant, Detective Dain used a template rather than drafting the warrant wholly new. (Tr. at 10.) Deputy District Attorney Sirena Wissler reviewed the affidavit with Detective Dain. (Tr. at 8.) Following that review, Dain presented the affidavit and search warrant to Judge L.A. Dever of the Third District Court for the State of Utah, who was the signing judge that day. (Tr. at 8-10, 20.) Judge Dever read the affidavit and search warrant, and administered an oath to Detective Dain. (Tr. at 8-10, 21-23.) Judge Dever then signed the documents, authorizing the search. (Tr. at 8-10 see Pl's Exs. 1 2.)
On September 12, 2001, at approximately 10:00 p.m., Detective Dain arrived at the apartment. The Murray SWAT team arrived at approximately 11:00 p.m. to assist in serving the warrant. (Tr. at 25-26.) Dain waited for the SWAT team before entering the apartment. (Tr. at 25-26.) Dain testified that it is standard procedure to use a SWAT team on a narcotics no-knock, nighttime search warrant. (Tr. at 31.) At approximately 11:00 p.m. the Murray SWAT team executed the warrant. (Tr. at 25.)
After execution of the warrant, at approximately 11:30 p.m., Detective Dain reviewed the search warrant with defendant Katoa and his girlfriend. (Tr. at 11.) During that review, Dain noticed that he had failed to change the search warrant template and it still read "daytime service" rather than the nighttime service that Dain had requested in his affidavit. (Tr. at 11.) Dain immediately contacted Judge Dever by telephone, (Tr. at 11.)
In that telephone conversation, Detective Dain told Judge Dever that he had made an error on the search warrant by not changing the template to reflect "nighttime service" consistent with the affidavit. (Tr. at 12.) Judge Dever told Dain that he clearly understood the warrant to be a nighttime service warrant. (Tr. at 12.)
Judge Dever then instructed Detective Dain to write "nighttime service" on the search warrant, place Dain's initials on the change, and indicate that the change was by the authority of Judge Dever. (Tr. at 12.) Judge Dever also told Dain that he would sign the changes at the time the return of service was brought to him. (Tr. at 12.)
Detective Dain followed Judge Dever's instructions. (Tr. at 12.) Dain wrote in the word nighttime" to the time of service and initialed the change. (Tr. at 14; Pl's Ex. 2 at 2.) Dain further noted on the search warrant that the addition of "nighttime" was per order of Judge Dever by telephone at approximately 11:45 p.m. on September 12, 2001. (Tr. at 14-15 see Pl's Ex. 2 at 2.) On September 28, 2001, Detective Dain brought the return of service to Judge Dever. (Tr. at 12-13, 15.) Judge Dever signed the change. (Tr. at 15.)
DISCUSSION
Defendant Katoa urges the court to suppress the evidence seized from his apartment on September 12, 2001, because the search warrant was executed at night. Although the warrant itself did not specifically authorize nighttime service-a consequence of what the parties appear to concede was a drafting error-the court concludes that execution of the warrant did not violate applicable federal law, including the Fourth Amendment.
It is well established in the Tenth Circuit that in federal prosecutions the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by federal law, even where the police actions are those of state officers. See United States v. Green, 178 F.3d 1099, 1105 (10th Cir. 1999); United States v. Le, 173 F.3d 1258, 1264 (10th Cir. 1999); see also United States v. Callwood, 66 F.3d 1110, 1112 (10th Cir. 1995) (providing that although search was conducted by state officials, the warrant must comport with constitutional requirements of Fourth Amendment); see also United States v. Gibbons, 607 F.2d 1320, 1325 (10th Cir. 1979) (providing that when a search is state in character, "the warrant and affidavits need only conform to federal constitutional requirements in order for the resulting information to be admissible in a federal prosecution").
Section 879 of the United States Code addresses the timing of the execution of search warrants relating to controlled substance offenses. It provides:
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 judge 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.Id. The Supreme Court has held that this statute "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."Gooding v. United States, 416 US. 430 (1974); see United States v. Tucker, 313 F.3d 1259, 1264-66 (10th Cir. 2002).
On a constitutional level, Tenth Circuit precedent indicates that it is not constitutionally necessary for a warrant to state explicitly that a nighttime search is authorized so long as circumstances indicate that the issuing judge approved a nighttime search. See United States v. Callwood, 66 F.3d 1110, 1112 (10th Cir. 1995) (although warrant indicated search was to be conducted during daytime, nighttime search was authorized by judge, when judge was approached at 1:30 a.m., and application for warrant requested authorization for immediate search);United States v. Carhee, 27 F.3d 1493, 1498 (10th Cir. 1994) (concluding that, although search warrant did not explicitly provide for nighttime search, no error occurred because the judge, in fact, authorized a nighttime search); United States v. Warren, 181 F. Supp.2d 1232, 1242-43 (D. Kan. 2001) (finding judge who signed search warrant after 11:00 p.m., impliedly if not expressly, authorized a nighttime search).
Turning to the case at bar, the affidavit in support of the warrant stated that a confidential informant had purchased methamphetamine from inside Katoa's property on three separate occasions. All three purchases had occurred during the two weeks before Detective Dain applied for the search warrant, and the most recent purchase had occurred within 72 hours. The affidavit further provided that police had observed short term traffic from the apartment which was consistent with drug trafficking and had also observed, during their numerous hours of surveillance, counter surveillance at Katoa's apartment. These assertions, taken in their totality, established that drug activities at Katoa's apartment were ongoing and continuous. As such, Judge Dever had probable cause to believe that contraband would be found at the apartment at any time, including nighttime. Therefore, nighttime execution of the warrant satisfied the requirements of § 879 and Gooding. See. e.g., United States v. Appelquist, 145 F.3d 976, 978 (8th Cir. 1998) (applying § 879 to state search, conducted at night, and concluding nighttime search was "clearly valid" under federal law); United States v. Ferguson, 2002 WL 971609 (8th Cir. May 13, 2002) (unpublished opinion) (applying § 879 to state search and concluding nighttime search, by state officials, did not violate § 879 or other federal law).
Moreover, although not required by § 879 and/or Gooding, the affidavit in this case actually made a "special showing" to justify the nighttime search. In addition to the information recited above, the affidavit details concern over the possible destruction of narcotics evidence. Specifically, it explains how people intent on buying drugs could be at the apartment, and once alerted to the search, could easily hide or destroy small bindles of drugs. The affidavit further explains that a surveillance camera was being used at the residence which could easily alert those inside to police presence. See Tucker, 313 F.3d at 1265 (reviewing Gooding and § 879 and providing that a "substantial risk of destruction of evidence would justify execution of a search warrant at night").
In addition, the affiant makes explicitly clear, through repeated references and requests, that what is being sought is a nighttime warrant. For example, the affidavit states:
"WHEREFORE, your affiant prays that a Search Warrant be issued . . . at any time day or night because there is reason to believe it is necessary to seize the property prior to it being concealed, destroyed, damaged, or altered." The affidavit provides further "that cover of darkness is necessary for police to arrive undetected at the residence and thereby, decrease the chance of any evidence [sic] could be concealed, destroyed, damaged, or altered." In the closing paragraph the affidavit again states: "Your affiant prays for unannounced authority anytime day or night." Pl's Ex. 1 at 4.
Based on this information, Judge Dever clearly understood Detective Dain to be seeking a "nighttime service warrant." (Tr. at 12.) Similarly, Detective Dain testified that he believed nighttime entry had been authorized, Accordingly, the court finds that Judge Dever understood Detective Dain to be seeking a nighttime warrant, intended to issue a nighttime warrant, and mistakenly believed he had, in fact, granted such authority.
Accordingly, although mindful that a nighttime search is particularly intrusive, Callwood, 66 F.3d at 1113; Gibbons, 607 F.2d at 1326, given the facts of this case, the court concludes that the nighttime execution of the search warrant was reasonable. Execution of the warrant complied with federal law and did not violate the Fourth Amendment. Therefore, based on the foregoing and good cause appearing, IT IS HEREBY ORDERED that defendant's motion to suppress is DENIED.