[Orin Kerr] If a magistrate issues a warrant for a daytime search, when (if it at all) can it be executed at night?

The U.S. Court of Appeals for the D.C. Circuit handed down an interesting Fourth Amendment decision Friday in Jones v. Kirchner. The question in the case is whether a magistrate judge’s decision to limit a warrant search to daytime hours is binding, such that the officers necessarily violate the Fourth Amendment if they execute the warrant at night. The court presented the issue as easy and answered the question “yes.” In this post, I want to explain why the issue is not nearly as simple as the opinion suggests — and why the easy answer might be wrong.

The “Jones” in the case is Antoine Jones, the drug dealer from the famous Supreme Court GPS case, United States v. Jones (2012). Yes, he’s back. Jones, who is currently incarcerated, filed a civil suit against officers who executed a search of his home pursuant to a search warrant in 2005. The complaint alleged (among other things) that the officers executed the search at 4:45 a.m. despite the magistrate judge having limited the execution of the warrant to the window of 6 a.m. to 10 p.m. The standard federal warrant form has magistrate judges choose whether the warrant is a daytime warrant (to be executed between 6 a.m. and 10 p.m.) or is a nighttime warrant (to be executed at any hour). The magistrate judge crossed off the part about the warrant being executed at any time, making the warrant a daytime warrant:

Now we get to the ruling: Judge Ginsburg, joined by Judge Wilkins, holds that the magistrate judge’s time limitation is binding. If the agents executed the warrant before 6 a.m., they violated the Fourth Amendment.

In this case the magistrate, as clearly indicated on the face of the warrant, affirmatively denied the Defendants permission to search Jones’s house before 6:00 AM. The plaintiff alleges the Defendants nonetheless executed the warrant at 4:45 AM. Just as a warrant is “dead,” and a search undertaken pursuant to that warrant invalid, after the expiration date on the warrant, Sgro v. United States, 287 U.S. 206, 212 (1932), a warrant is not yet alive, and a search is likewise invalid, if executed before the time authorized in the warrant. If the Defendants executed the warrant when the magistrate said they could not, then they exceeded the authorization of the warrant and, accordingly, violated the Fourth Amendment.

Judge Ginsburg continues:

If the executing officers believed the daytime-only limitation was an improvident limitation or, as in United States v. Katoa, 379 F.3d 1203 (10th Cir. 2004), a mere drafting error, then they had other options, including telephoning the magistrate to authorize nighttime service, as the officers did in Katoa. See also United States v. Voustianiouk, 685 F.3d 206, 216 (2d Cir. 2012) (explaining that a search of a second-floor apartment violated the Fourth Amendment where the warrant authorized a search of the first-floor apartment only and the officers “could have called a magistrate judge on the telephone” on the morning of the search after discovering the suspect resided on the second floor). Simply ignoring the timing limitation was not among the choices lawfully available to the officers in this case.

The court then ruled that qualified immunity should attach because the law on the books in the circuit where the search occurred at the time suggested that warrant’s limitation was not binding. Judge Randolph dissented in part, primarily on the ground that the trial court’s ruling about the time the search was executed could not be relitigated under collateral estoppel principles. Judge Randolph also expressed doubt about the Fourth Amendment merits, but he didn’t go into detail. See Footnote 7 of his dissent.

On the merits, I think this issue is much trickier than Judge Ginsburg suggests. The problem is that some magistrate limits on warrants are controlling under the Fourth Amendment but others are not. On one hand, the magistrate’s particular description of the place to be searched is binding. The magistrate makes a determination about the place to be searched based on the probable cause shown in the affidavit, and the warrant itself only authorizes a search of that particular place. The officers can’t just decide to search a different place. That limit is the whole point of the warrant.

On the other hand, in Richards v. Wisconsin, the Supreme Court held that a magistrate’s condition that a warrant could not be executed as a no-knock warrant was irrelevant to whether the subsequent warrant search executed without knocking