4A 4C 2006: Drug Warrants, Like Breakfast At Denny's, Can Be Served Anytime

UNITED STATES v. RIZZI, 434 F.3d 669 (4th Cir. 2006), No. 05-4240, 2006 U.S.App. LEXIS 450, on appeal from USDC-DMD, before USCJ Niemeyer, SrUSCJ Hamilton, USDJ-WDNC Conrad by designation, opinion by Niemeyer, filed 09 Jan 2006.

LONG STORY SHORT: Statute specifically authorizing search warrants for drugs to be served at night prevailed over criminal procedure rule generally requiring search warrants to be served only in the daytime, and the statute was not unconstitutional under the Fourth Amendement. Binding in MD, NC, SC, VA, WV.

FACTS: During an ongoing drug activity investigation at a particular bar, Baltimore PD officers saw Defendant apparently selling drugs out of his vehicle and in the bar's restroom. The officers found cocaine residue on abandoned trash bags from Defendant's home, and learned from federal LE that Defendant was a convicted felon and therefore not allowed to have firearms. Baltimore officers swore out a search warrant from state court directing them "forthwith" to search Defendant's house and vehicle for drugs, firearms, money, records, and drug paraphernalia. At 0430 (before sunrise) two days later, 24 federal, state, and Baltimore officers knocked and announced at Defendant's front door. They waited 15 to 20 seconds before forcing entry, arresting Defendant as he was walking up the stairs from where he had been asleep in the basement. Officers found no drugs, but after they Mirandized Defendant, he directed them to firearms in the basement.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Maryland for possessing firearms while a convicted felon. Defendant moved to suppress the firearms, arguing that Federal Rule of Criminal Procedure 41(e) required all warrants to specify daytime execution unless the issuing judge authorized otherwise for good cause. The United States conceded that good cause did not preexist, but argued that 21 U.S.C. § 879 prevailed, because it specifically authorized that warrants relating to controlled substance offenses "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 trial court ruled that the warrant, since it did not authorize service at night, fell under Rule 41(e), and § 879 began after Rule 41(e) ended, and thus did not control. SUPPRESSION GRANTED. The United States appealed to the U.S. Court of Appeals for the Fourth Circuit, and Defendant argued for the first time that even if § 879 prevailed, it amounted to a blanket exemption to the daytime search requirement for a class of cases, violating the Fourth Amendment.

DECISION: As a rule, specific laws trump general laws on the same subject. Here, Rule 41 covers search warrants generally and requires a special showing for night service, but § 879 specifically addresses drug warrants. Supreme Court precedent and the plain language "may be served at any time of the day or night" so long as the issuing court "is satisfied" that probable cause exists, and § 879's expression of congressional drug policy meant that it took away all Rule 41 authority over search warrants involving drug crimes. In the Fourth Circuit, therefore, search warrants involving violations of drug laws may be served anytime, so long as probable cause supports the warrant itself.

As to Defendant's Fourth Amendment argument, the Fourth Circuit addressed it as part of the review of the trial court's rejection of § 879, even though Defendant did not raise the issue below. Statutes may not except a class of searches from component protections of the Fourth Amendment. For example, the Supreme Court has held the knock-and-announce rule to be a simple and universal Fourth Amendment protection, subject only to case-by-case exceptions. However, the Supreme Court has never held daytime-only searches to be a Fourth Amendment rule, not least because that issue is much more complicated than knock-and-announce. Some people work during the day and sleep at night, and some days are holidays when searches would be more disruptive than on a regular night. § 879's recognition of law enforcement's special need for advantages against drug dealers did not fall below Fourth Amendment minimums and was within the government's police power. SUPPRESSION REVERSED; cause remanded.

EDITORIAL: Though I think 21 U.S.C. § 879 could have been better drafted--in fact, on first reading it, I thought Defendant had a good point--the Fourth Circuit is right that if the Supremes haven't implanted a particular requirement into the Fourth Amendment, it's fair game for legislation. It was news to me that a state warrant could be subject to federal law if the case went federal. Well, now I know.

Predictably, this guy pleaded to the charge and accepted a year and a day in prison, on condition that he could appeal the suppression again. He argued, among other things, that 24 police officers were just too many to be constitutional. On 12 Mar 2007, the Fourth Circuit flushed it in an unpublished opinion, noting that no court has ever ruled a search unreasonable on grounds that there were just too many cops present. If the excessive armed warm bodies had tried to intimidate him into confessing, that would have been another matter. Also, 15 to 20 seconds was plenty long to wait. Good job, Fourth.