If a search warrant says to be served during the night season and they serve it at 2 p.m. is it legal?
Full Question:
Answer:
Warrants are generally to be served during the daytime unless the Warrant sets that the search be at night.
The US Supreme Court has ruled that search warrants should generally be executed during the daytime. And only under special circumstances can it be at night. See Gooding v. United States, 416 U.S. 430 (1974). Rule 41 of the Federal Rules of Criminal Procedure sets forth search warrant requirements. Many of the night searches are searches relating to drugs.
Warrants sometimes state search can be in daytime, nighttime or both. If the search is made at a time not specified in the Warrant it could be an invalid search. However, the court opinions involving the issue are not consistent and each case will be determined on its on facts. If a warrant is a daytime warrant the search can generally continue in the night.
One article that discusses a similar issue can be found here. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/29/if-a-magistrate-issues-a-warrant-for-a-daytime-search-when-if-it-at-all-can-it-be-executed-at-night/?utm_term=.6ea53e50902d
In Ohio this Statute was found relating to warrants. it may or may not be applicable to your warrant.
2933.24 Contents of search warrant - report of physical conditions.
(A) A search warrant shall be directed to the proper law enforcement officer or other authorized individual and, by a copy of the affidavit inserted in it or annexed and referred to in it, shall show or recite all the material facts alleged in the affidavit, and particularly name or describe the property to be searched for and seized, the place to be searched, and the person to be searched. If a waiver of the statutory precondition for nonconsensual entry, as defined in division (A) of section 2933.231 of the Revised Code, has been granted pursuant to that section, the warrant also shall contain a provision as described in division (C) of that section.
The warrant shall command the officer or individual to search the place or person named or described for the property, and to bring them, together with the person, before the judge or magistrate. The command of the warrant shall be that the search be made in the daytime, unless there is urgent necessity for a search in the night, in which case a search in the night may be ordered.
The warrant shall be returned promptly by the officer or individual holding it . It shall designate the judge or magistrate to whom it shall be returned, if such judge or magistrate is available.
(B) When a search warrant commands a proper law enforcement officer or other authorized individual to inspect physical conditions relating to public health, safety, or welfare, such officer or individual, upon completion of the search, shall complete a report of the conditions and file a copy of such report with the officer's or individual's agency headquarters.
Effective Date: 11-20-1990; 10-21-2005
