Nighttime was the right time

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Federal law allows police officers investigating drug activity to execute a search warrant at night without showing there was good cause for a nighttime search, the 4th U.S. Circuit Court of Appeals held yesterday.

The decision reverses a federal judge’s order to suppress firearms found at the Baltimore home of Richard Rizzi, who previously had been convicted of drug possession and drug trafficking crimes.

U.S. District Judge J. Frederick Motz concluded that Federal Rule of Criminal Procedure 41(e) required the warrant to be served during the daytime, unless the authorizing judicial officer demonstrates good cause for a nighttime search.

However, the prosecutors pointed out that a federal statute, 21 U.S.C. §879, specifically provides for nighttime execution of search warrants involving controlled substances.

The 4th Circuit agreed, rejecting Motz’s attempt to reconcile the rule with the law.

“At bottom, we hold that when a search warrant involves violations of drug crimes, the warrant can be served day or night so long as the warrant itself is supported by probable cause,” Judge Paul V. Niemeyer wrote for the court. “And to the extent that §879 might be found to conflict with the general requirement of showing good cause for nighttime searches contained in Rule 41(e), we hold that §879 applies exclusively.”

The appeals court said it would remand Rizzi’s constitutional challenges to §879 without addressing them, except for one: his comparison to the “blanket exclusion” for drug cases the Supreme Court found unconstitutional in a 1997 case, Richards v. Wisconsin, which involved the knock-and-announce rule.

“Rizzi… reads Richards too broadly,” Niemeyer wrote.

Richards struck down only blanket exceptions to the knock-and-announce requirement, which is “incorporated within the Fourth Amendment,” Niemeyer wrote; “judges must decide, either before or after a search on a case-by-case approach, whether dispensing with a knock and announcement was reasonable.”

In contrast, “constitutionalizing a standard for when warrants can be served would involve so many variables that any rule would be difficult to articulate, much less serve as a component protection of the Fourth Amendment,” the court concluded. “The same privacy interest exists night and day, every day, and the Fourth Amendment knows no holidays. What differs is how individuals experience intrusions on that privacy.”

The search of Rizzi’s home, in the 7100 block of Willowdale Ave. in Baltimore, came during a drug-trafficking investigation by state and federal law enforcement officers.

In June and July 2004, Baltimore police officers were watching the Holiday House bar, where they witnessed Rizzi “apparently sell drugs out of the restroom and out of his Chevrolet pickup truck,” yesterday’s opinion says.

They followed Rizzi home and recovered garbage bags from his address, discovering cocaine residue on some of the trash.

The city police officers contacted federal law enforcement after finding out about his previous convictions, which made him ineligible to possess firearms.

On July 7, 2004, the city police officers obtained a warrant from a state court judge to search Rizzi’s home and truck “forthwith” for drugs, firearms, money, records and drug-related paraphernalia.

Federal, state and city officers — 24 in all — executed the warrant at 4:30 a.m. on July 9. They knocked loudly, announced “police, search warrant” and waited 15 to 20 seconds before forcing open the front door.

Rizzi, who was heading upstairs from his bedroom in the basement, was read his Miranda rights and directed the officers to firearms he kept in the basement, the opinion says.

Indicted for violation of the federal felon in possession statute, Rizzi pleaded not guilty and moved to suppress the evidence.

The judge below granted the motion on the basis of Rule 41(e), finding he did not need to decide whether the search was unconstitutional. However, he “allowed that the ‘constitutionality of the search was, at best, questionable’ ” based on the nighttime execution, the 20-second wait, and the number of officers executing the search warrant.

The 4th Circuit reversed and remanded the case for further proceedings.