IN SUPREME COURT
Court of Appeals
Anderson, Paul H., J.
Dissenting, Anderson, G. Barry, J.
Anderson, Russell A., C.J. and Gildea, J.
Filed: December 6, 2007
Office of Appellate Courts
Susan Ranae Jackson,
S Y L L A B U S
The basic purpose of Minn. Stat. § 626.14 was subverted when the police entered a defendant’s home at 9:25 p.m. on December 11 to execute an invalid nighttime search warrant without knowledge that the defendant had not yet entered the period of nighttime repose that is protected under the statute; therefore, the district court erred when it did not suppress the evidence seized during the search.
The Fourth Amendment of the United States Constitution prohibits official intrusions into the home during a period of nighttime repose without proper justification, which period of nighttime encompasses the right to be free from official intrusion into the home during the nighttime when personal and private activities are likely to occur.
The police violated a defendant’s Fourth Amendment constitutional right to be free from unreasonable searches and seizures when they entered the defendant’s home at 9:25 p.m. on December 11 to execute an invalid nighttime search warrant without knowledge that the defendant had not yet entered a period of nighttime repose; therefore, the district court erred when it did not suppress the evidence seized during the search.
Heard, considered, and decided by the court en banc.
O P I N I O N
ANDERSON, Paul H., Justice.
Susan Ranae Jackson
was charged with two counts of second‑degree controlled substance crime
in violation of Minn. Stat. § 152.022, subds. 1(1), 2(1) (2006), and two
counts of child endangerment in violation of Minn. Stat. § 609.378, subd. 1(b)(2)
(2006). Before her trial,
On December 11, 2003, Itasca
County Sheriff’s Department Investigator Dean Scherf was conducting a narcotics
investigation that involved Todd Dawson and the appellant, Susan Ranae Jackson. At about 6:30 p.m., Scherf executed a search
a result of the Search Warrant on the
[confidential reliable informant] that your affiant spoke to in reference to
Dawson having controlled substances in his vehicle also indicated that Dawson
was at the Susan Jackson residence at the time the controlled substances were
observed in Dawson’s vehicle. The [confidential
reliable informant] also relayed that
Based on the foregoing facts in his affidavit, Scherf requested a search warrant authorizing the police to conduct a nighttime search as provided for under Minn. Stat. § 626.14 (2006). In support of the nighttime search authorization, Scherf also stated in the affidavit that “[t]his investigation has led your affiant into the nightime [sic] scope of search warrant.” Scherf provided no further information to support a nighttime search.
district court granted a search warrant authorizing a nighttime entry, and at
9:25 p.m. on December 11 officers from the Itasca County Sheriff’s
Department executed the warrant on Jackson’s home. The officers knocked on
The district court
On appeal to our court, Jackson
claims that the police failed to provide sufficient justification for a
nighttime search of her home and therefore the issuance of the nighttime search
warrant violated Minn. Stat. § 626.14 and both the United States and Minnesota constitutions. She asserts that the district court therefore
erred when it denied her suppression motion.
The state does
not dispute that the nighttime search of
Minnesota Statutes § 626.14 provides that
[a] search warrant may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless the court determines on the basis of facts stated in the affidavits that a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.
We have held that an application for a nighttime
warrant under section 626.14 must establish reasonable suspicion that a
nighttime search is necessary to preserve evidence or to protect officer or
public safety. State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006). Here it is undisputed that the required
grounds for a nighttime search were not established by the police. Thus, the only question before us on appeal
is whether the district court erred when it did not suppress the evidence seized
during the admittedly improper nighttime search. When reviewing pretrial orders on motions to
suppress evidence, we independently review the facts to determine whether, as a
matter of law, the court erred in its ruling.
Bourke, 718 N.W.2d at
927. We review the court’s factual
findings for clear error and its legal determinations de novo.
We have previously stated
that we will not require the suppression of evidence obtained in violation of a
statute or rule when the violation is merely technical and “did not subvert the
basic purpose of the statute.” State v. Smith, 367 N.W.2d 497, 504
(Minn. 1985). In Smith, the defendant moved unsuccessfully to suppress evidence
seized from his hotel room after the police obtained the defendant’s address
from the county department of social services in violation of the Minnesota
Government Data Practices Act. Id. at 503. On review, we reasoned that the main purpose
of the Data Practices Act, as applied to the defendant, was to prevent
disclosure of information identifying the defendant as a recipient of welfare
benefits. Id. at n.1. Because the
welfare records in Smith were used
simply to identify the defendant’s residence and not to disclose his welfare
status, we held that the violation “did not subvert the basic purpose of the
statute,” and therefore did not require suppression.
But we have also held that
“serious violations which subvert the purpose of established procedures will
justify suppression.” State v. Cook, 498 N.W.2d 17, 20
(Minn. 1993). In Cook, we concluded that evidence seized pursuant to a telephonic
search warrant required suppression when the procedures for obtaining the
warrant were violated.
Based on the foregoing case
law, the question before us is whether the 9:25 p.m. police search of
In determining the purpose of section 626.14, we note that the statute appears to represent a codification and application of a legal history that illustrates an aversion to nighttime searches. Therefore, in determining the purpose of the statutory limitations on nighttime searches, we must examine this historical aversion to such searches. Further, we have also stated that the general rule against nighttime searches may have a constitutional dimension and thus implicates constitutional protections against unreasonable searches and seizures. See Lien, 265 N.W.2d at 839‑40. Accordingly, we believe that our determination of whether the police’s violation of section 626.14 subverts the purpose of the statute should include a review of what was considered an unreasonable nighttime search when the United States Constitution was adopted and what factors have led to the general rule against nighttime searches.
Historic Aversion to Nighttime Searches
Certain provisions of the U.S.
Constitution, which was adopted in 1787, and the Fourth Amendment, which was
ratified in 1791, were in part a reaction to the general warrants of England
and the writs of assistance used in the colonies. Steagald
v. United States, 451 U.S. 204, 220 (1981). General warrants specified only an offense
and left the decision of whom to arrest and where to search to the discretion
of the official executing the warrant.
Before 1750, nighttime
searches were authorized under law in the northern and central colonies and
were the norm in other colonies. Tracey
Maclin, The Complexity of the Fourth
Amendment: A Historical Review,77
B.U. L. Rev. 925, 971 (1997) (citingWilliam
J. Cuddihy, The Fourth Amendment: Origins
and Original Meaning, 602-1791,at
865-66 (1990) [hereinafter Cuddihy]. But
by the 1780s, every state except
The aversion to nighttime searches that motivated these early statutes was also reflected in the other writings of the founders. For example, as early as 1774, John Adams described the unique status of the home during the night:
Every English[man] values himself exceedingly, he takes a Pride and he glories justly in that strong Protection, that sweet Security, that delightfull Tranquillity which the Laws have thus secured to him in his own House, especially in the Night. Now to deprive a Man of this Protection, this quiet and Security in the dead of Night, when himself and Family confiding in it are asleep, is treat[ing] him not like an Englishman not like a Freeman but like a Slave * * * .
1 Legal Papers of John Adams 137 (L. Kinvin Wroth & Hiller B. Zobel eds., The Belknap Press 1965) (republished from the 1774 original). The special status of a person’s home at night is also reflected in the fact that at common law, attempt offenses were only misdemeanors, but breaking into a house at night with the intent to commit a felony was a felony. Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 642 n.259 (1999) (citing 4 William Blackstone, Commentaries on the Laws of England 223-26 (1769, reprinted facsimile U. Chi. Press, 1979)).
This early aversion to nighttime intrusion into the home indicates that the “factor of a nighttime search is sensitively related to the reasonableness issue” under the constitution. United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir. 1979). We believe that this sensitivity related to reasonableness is helpful to our analysis of the purpose of section 626.14 and the interest it seeks to protect.
As we previously noted, a historic aversion to nighttime searches appears to have been the core purpose behind Minn. Stat. § 626.14, which statute was intended to protect against, at a minimum, the indignity of being roused out of bed in the middle of the night and made to stand by in nightclothes. But it is less evident exactly how far the protection extends and what is the precise interest to be protected. The interest being protected is not simply privacy in one’s home—the police may overcome that interest with a warrant supported by probable cause. Thus, in order to determine if a particular violation of the statute subverts the basic purpose of the statute, we must, with the historical context in mind, make further inquiry to more precisely define the interest being protected.
We have previously
articulated the policy behind limiting nighttime searches both broadly and
narrowly. In State v. Stephenson, we defined it broadly when we said it is to
protect the public from the “ ‘abrasiveness of official intrusions’ during the
Period of Nighttime Repose
We begin this part of our analysis, with the understanding that any definition of the precise interest protected by restricting nighttime searches must be informed by the factors that make nighttime searches more intrusive than daytime searches. Some commentators have noted that nighttime searches are more intrusive because of the more personal nature of nighttime activities that occur in the home and because being subject to law enforcement activity produces more anxiety and is interpreted as more threatening at night than during the day. George E. Dix, Means of Executing Searches and Seizures as Fourth Amendment Issues, 67 Minn. L. Rev. 89, 150 (1982-83); see also Carrie Leonetti, Open Fields in the Inner City: Application of the Curtilage Doctrine to Urban and Surburban Areas, 15 Geo. Mason U. Civ. Rts. L.J. 297, 312 n.60 (2005) (citing cases that recognize the “uniquely intrusive” nature of nighttime searches of the home and that people awakened at night by the police are “uniquely vulnerable”). We also note that the protection against nighttime searches is aimed at a period of time—nighttime—and at certain private activities that occur in the home during that time. Accordingly, we believe it is appropriate to define the interest protected as freedom from intrusion during a period of nighttime repose.
The American Heritage Dictionary defines “repose” alternatively as “the state of being at rest,” “[f]reedom from worry; peace of mind,” and “[c]almness; tranquility.” The American Heritage Dictionary 1480 (4th ed. 2000). Black’s Law Dictionary defines “repose” as “[c]essation of activity; temporary rest.” Black’s Law Dictionary 1327 (8th ed. 2004). And Bryan A. Garner states that repose “is not ‘indefinite dormancy,’ but rather suggests temporary rest, after which there will again be activity.” Bryan A. Garner, A Dictionary of Modern Legal Usage 759 (2d ed. 1995). These definitions of repose are consistent with language that appears in case law as well as the previously cited language used by John Adams in describing the special security and tranquility of the home at night.
We believe that at certain
times it will be readily apparent what is protected during this period of nighttime repose. For example, if the police search an unlit
home at 3 a.m. without proper nighttime authorization, they run considerable
risk of violating the occupants’ interest in being free from intrusion during a
nighttime period of repose. But if the
police search a home at 8:30 p.m. on the summer solstice when the doors are
open and a party is underway at a home, they are much less likely to run the risk
of seriously violating the occupants’ interest in being free from such
intrusion. These examples illustrate a
key aspect that we recognize and acknowledge about the interest we have
articulated, especially at its beginning and end. This definition is a bit nebulous and
necessarily encompasses what Justice Robert Jackson might refer to as a “zone
of twilight,” within which the right to protection is less certain and will
depend “on the imperatives of events and contemporary imponderables rather than
on abstract theories of law.” Youngstown Sheet
& Tube Co. v. Sawyer, 343
Was the Basic Purpose of Minn. Stat. § 626.14 Seriously Violated?
Having defined the
interest that the limitation on nighttime searches protects, we now examine the
facts of this case to determine if that interest was seriously violated. The police entered
State v. Lien Distinguished
Both the state and dissent
assert that the violation here is not a serious violation based on our
resolution of a similar question in State
v. Lien, 265 N.W.2d 833 (Minn. 1978).
In Lien, the police obtained a
search warrant authorizing a nighttime search of Lien’s apartment. Id. at
836. While waiting outside Lien’s
apartment, the police observed several people coming and going from the apartment
and then, shortly after 9 p.m., they saw an individual meeting Lien’s
description arrive and enter the apartment.
On review, we agreed that
Minn. Stat. § 626.14 had been violated, but we went on to conclude that
suppression of evidence obtained as a direct result of the invalid search was
not required because the violation was merely technical. Lien,
265 N.W.2d at 841. In reaching this
conclusion, we noted that the search warrant was executed at “a reasonable hour
when most people are still awake” and that “the intrusion was not the kind of
nighttime intrusion—with people being roused out of bed and forced to stand by
in their night clothes while the police conduct the search—that our statutory
rule against nighttime execution of search warrants is primarily designed to
prevent.” Id. at 841. Importantly, we also
relied on the fact that the police knew, before executing the warrant, that Lien,
who was the focus of the search, had just returned home, that he was fully
clothed, that there was considerable activity in his apartment, and that the
door to the apartment was partly open.
We conclude that
After - Acquired Information
Probable cause to search a
home must be based on facts known to police before entrance into the home. State
v. Lohnes, 344 N.W.2d 605, 610 (Minn. 1984). Similarly, the assessment that a particular
nighttime intrusion will not subvert the purpose of section 626.14 must also
be based on what the police knew before
entering a home at night if they hope to avoid suppression of any evidence seized
from the home. We conclude that allowing
the state to characterize an insufficiently supported nighttime intrusion into
Jackson’s home as a mere technical rather than serious violation based on an after‑the‑fact
assessment that she and her children had not yet entered a period of nighttime
repose significantly undermines Jackson’s statutory right to be free from the
“abrasiveness of official intrusions” during the night. Stephenson,
310 Minn. at 233, 245 N.W.2d at 624, (stating that “[t]he policy behind
prohibiting nighttime searches in the absence of specific judicial
authorization in the warrant is to protect the public from the ‘abrasiveness of
official intrusion’ during the night.”
(quoting Ravich, 421 F.2d at
1201)). We therefore find it difficult to accept the dissent’s
reasoning that the fact that Jackson and her children happened to be out of
bed, awake, fully clothed and seated at the kitchen table when the police
entered the home, can justify this nighttime intrusion into Jackson’s home. In essence, we conclude that what the police
knew before entering
At bottom, Minn. Stat. § 626.14 is directed at both an aversion to nighttime searches and police conduct. With respect to police conduct, it specifically aims to prevent police intrusion into the personal and private activities of individuals in their homes at night unless the police articulate facts sufficient to support their intrusion. It is the responsibility of the police to follow the statute by stating facts in an affidavit that the nighttime search “is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.” Minn. Stat. § 626.14 In this regard we find our reasoning and analysis in Cook, where we upheld the suppression of evidence obtained as the result of an illegal search, to be more compelling than the state and the dissent’s reliance on language in Lien. Cook, 498 N.W.2d at 21-22 (holding that a rule violation subverted the basic purpose of the rule when police failed to provide advance documentation necessary to support a telephonic search warrant). Here it is undisputed by all the parties that the police did not meet this burden of providing sufficient facts. Finally, while it is true that the likelihood of rousing individuals out of bed “less than an hour-and-a-half” into the statutory deadline may be less than it would be three or more hours into the deadline, we do not want to encourage the police to play the odds by ignoring the statutory timeframe in the hopes of catching the occupants of a home awake and fully clothed.
District Court Erred When It Did Not Suppress Evidence
For the preceding reasons, we
conclude that the violations of Minn. Stat. § 626.14 were not mere technical
violations but were serious violations.
Accordingly, we conclude that admitting the evidence seized from
Jackson’s home would subvert the basic purpose of section 626.14. Therefore, we hold that the district court
erred when it failed to suppress the evidence seized during the invalid nighttime
Having concluded that
suppression of the evidence seized from
Although the general rule against nighttime searches is statutory, it may also have a constitutional dimension. Justice Marshall in a dissenting opinion, joined by Justice[s] Douglas and Brennan, in Gooding v. United States, 416 U.S. 430, 94 S. Ct. 1780, 40 L.Ed.2d 250 (1974), while stating that the constitutional issue was not presented in that case, added that he believed the Constitution required additional justification for a nighttime search of a home over and above the ordinary showing of probable cause.
Underlying the Minnesota statutory rule as well as Justice Marshall’s suggested constitutionally based rule is the belief that a nighttime search of a home involves a much greater intrusion upon privacy and is presumably more alarming than an ordinary daytime search of a home.
265 N.W. 2d at 839-40 (citing Stephenson, 310 Minn. 229, 245 N.W. 2d 621). We agree that there are constitutional implications that underlie Minn. Stat. § 626.14 and that the statute is a means by which defendants are protected from unconstitutional nighttime searches. Therefore, in light of the constitutional implications of the statute’s proscription of nighttime searches of homes, the dissent’s conclusion that suppression is not required under the statute, and the likely recurrence of this issue coming before us in the future, we will address Jackson’s constitutional arguments.
Both the Fourth Amendment of the United States Constitution and Article I, § 10 of the Minnesota Constitution provide that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In Boyd v. United States, the United States Supreme Court held that in order to protect important personal security and property rights, the Fourth Amendment should be liberally construed. 116 U.S. 616, 635 (1886).
[I]llegitimate and unconstitutional practices get their first footing * * * by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.
While the Supreme Court has never held that a nighttime search implicates the reasonableness requirement of the Fourth Amendment, it has repeatedly acknowledged the especially intrusive nature of nighttime searches of the home. See, e.g., Gooding v. United States, 416 U.S. 430, 462 (1974) (Marshall, J., dissenting) (noting that “there is no expectation of privacy more reasonable and more demanding of constitutional protection than our right to expect that we will be let alone in the privacy of our homes during the night”); Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971) (referring to a midnight entry into a home as an “extremely serious intrusion”); Monroe v. Pape, 365 U.S. 167, 209-210 (1961) (Frankfurter, J., concurring in part, dissenting in part) (noting that, at common law, nighttime searches of the home were the most obnoxious form of official intrusion); Frank v. Maryland, 359 U.S. 360, 366 (1959) (noting that the intrusion did not involve a “midnight knock on the door, but an orderly visit in the middle of the afternoon”); Jones v. Unites States, 357 U.S. 493, 498 (1958) (noting that “it is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home”). Our court has also acknowledged that “a nighttime search of a home involves a much greater intrusion upon privacy and is presumably more alarming than an ordinary daytime search of a home.” Lien, 265 N.W.2d at 839-40.
Further, several federal circuit courts have held that unauthorized nighttime searches violate the Fourth Amendment. For example, in United States v. Merritt, the Third Circuit considered a motion to suppress made by a defendant whose home had been searched at 7:30 p.m. with a warrant that authorized only a daytime search. 293 F.2d 742, 743 (3d Cir. 1961). The court held that “[s]ince the warrant was ‘legally invalid’ the officers’ entry into the defendant’s apartment was on the same plane as an entry without any warrant at all and as such was an unlawful ‘invasion’ within the proscription of the Fourth Amendment.” Id. at 746; see also O’Rourke v. City of Norman, 875 F.2d 1465, 1475 (10th Cir. 1989) (holding a 10 p.m. search of a home without a nighttime endorsement on the warrant unreasonable under the Fourth Amendment); Boyance, 398 F.2d at 898-99 (holding constitutionally invalid a 2 a.m. search of a home conducted with a warrant that authorized only a daytime search). In addition, other circuits have recognized the uniquely intrusive nature of nighttime searches of the home. See, e.g., United States v. Jerez, 108 F.3d 684, 690 (7th Cir. 1997) (recognizing the “particular intrusiveness of nocturnal encounters with the police at one’s dwelling”); Ravich, 421 F.2d at 1201 (recognizing the “peculiar abrasiveness of official intrusions” at night).
The state and the dissent essentially ignore the historical context of the Fourth Amendment in their analysis; but we consider this historical perspective to be a critical factor in any case involving a nighttime search. The Supreme Court has explicitly held that “[t]he Fourth Amendment is to be construed in light of what was deemed an unreasonable search and seizure when it was adopted * * * .” Carroll v. United States, 267 U.S. 132, 149 (1925). As we have already noted, the Fourth Amendment was in part a reaction to the general warrants of England and the writs of assistance used in the colonies that virtually permitted unlimited discretion regarding when and were to conduct a search. Steagald, 451 U.S. at 220. Moreover, the fact that 12 of the original states and the First Congress enacted statutory prohibitions of nighttime searches strongly suggests that such searches were considered unreasonable when the Fourth Amendment was adopted.
Given the historical aversion to nighttime searches, the historical recognition of the unique status of persons in their home at night, the Supreme Court’s recognition of the especially intrusive nature of nighttime searches of a home and the holdings of several federal courts that nighttime searches implicate the reasonableness requirement of the Fourth Amendment, we conclude that the search of a home at night is a factor to be considered in determining whether a search is reasonable under the Fourth Amendment. We further conclude that in order to be constitutionally reasonable, nighttime searches require additional justification beyond the probable cause required for a daytime search.
In evaluating the
reasonableness of an official intrusion beyond the probable cause context, the Supreme
Court relies on the balancing test articulated in Camara v. Municipal Court, 387 U.S. 523, 536-37 (1967), that is,
the need to search must be balanced against the invasion which the search
entails. See, e.g., Terry v. Ohio,
392 U.S. 1, 21 (1968). Minnesota Statutes § 626.14 articulates
such a balancing test by allowing nighttime searches only if necessary to
prevent the destruction of the objects of the search or for the safety of the
searchers or the public. In other words,
a magistrate’s determination that a nighttime search is necessary, under section
626.14, aims to satisfy the constitutional mandate that law enforcement’s need
to search at night must be balanced against the invasion of privacy that a
nighttime search entails. In this case,
the state concedes the insufficiency under section 626.14 of the police
officer’s assertion that “[t]his investigation has led your affiant into the nightime
[sic] scope of search warrant.” The
state’s concession is appropriate and well-grounded. For the reasons articulated below, we also
conclude that for the same reason the police assertions were insufficient to
meet the requirements of section 626.14, they are insufficient to render a
nighttime search of
Having previously defined
the interests that the limitation on nighttime searches is designed to protect,
we now examine the facts of this case to determine if Jackson’s constitutional
rights were violated. The police entered
Having concluded that
We ultimately conclude that Hudson is distinguishable for an
important reason—an unannounced entry involves significantly different interests
than the interests protected by the constitutional prohibition on nighttime
searches. At the core of
Since Weeks,the Supreme Court
has refused to apply the exclusionary rule in only two situations: 1)
where the application of the rule would not result in appreciable deterrence,
and 2) where the issue involves admissibility in a non-criminal proceeding. Hudson,
126 S. Ct. at 2175 (Breyer, J., dissenting).
As the dissent in Hudson
noted, “in every case involving evidence seized during an illegal search of a
home * * * , the Court, with the exceptions mentioned, has
either explicitly or implicitly upheld (or required) the suppression of the
evidence at trial.” Id. at 2176. Further, in
both Weeks and Mapp,the Court concluded
that without the exclusionary rule, the Fourth Amendment essentially grants a
right with no remedy.
The state further argues that the evidence seized should not be suppressed because the officers reasonably relied on the nighttime search authorization issued by the district court. The Supreme Court has “long held that the ‘touchstone of the Fourth Amendment is reasonableness.’ ” Ohio v. Robinette, 519 U.S. 33, 39 (1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). Further, the Court has said that reasonableness “is measured in objective terms by examining the totality of the circumstances.” Id.; see also United States v. Arvizu, 534 U.S. 266, 273 (2002) (stating that “[w]hen discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing”); United States v. Martinez-Fuerte, 428 U.S. 543, 569 (1976) (Brennan & Marshall, JJ., dissenting) (stating that to be reasonable, conduct “must pass muster under objective standards applied to specific facts”). An individual officer’s subjective state of mind is not the relevant consideration. In Brigham City, Utah v. Stuart, __U.S.__, 126 S. Ct. 1943, 1948 (2006), the Court said that “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind ‘as long as the circumstances, viewed objectively justify [the] action.’ ” (emphasis added)(quoting Scott v. United States, 436 U.S. 128, 138 (1978)). We conclude that this objective standard requires a police officer to have a reasonable knowledge of what the law requires or prohibits. Accordingly we will not defer to a warrant that is based on an affidavit that does not provide a substantial basis for determining probable cause. See Illinois v. Gates, 462 U.S. 213, 239 (1983) (stating further that “[s]ufficient information must be presented to the magistrate to allow that official to determine probable cause” and the magistrate’s “action cannot be a mere ratification of the bare conclusions of others.”).
In this case we conclude
that it was not objectively reasonable for the police to rely on the nighttime
search authorization issued by the district court when the only justification
provided to the court in support of a nighttime search was the police officer’s
concluding statement that “[t]his investigation has led your affiant into the nightime
[sic] scope of search warrant.” Since
its enactment in 1963, Minn. Stat. § 626.14 has required that authorization for
a nighttime search be based on “facts stated in the affidavits that a nighttime
search is necessary to prevent the loss, destruction, or removal of the objects
of the search.” Act of May 23, 1963, ch.
849, § 12, 1963
D I S S E N T
ANDERSON, G. Barry, Justice (dissenting).
I respectfully dissent. We previously held that when a warrant is executed in violation of Minn. Stat. § 626.14 (2006), the evidence obtained as a result of the search will not be suppressed when the violation is technical in nature. State v. Lien, 265 N.W.2d 833, 839-41 (Minn. 1978). Because I conclude that the facts in this case are similar to those in Lien, I would affirm the court of appeals and deny suppression of the evidence.
State does not challenge the district court’s conclusion that the nighttime
search warrant was defective. The State
argues, rather, that the evidence obtained should not be suppressed despite the
defect. The majority holds that the
evidence must be suppressed not only because of the statutory violation, but
also because the search violated
Lien, the police obtained a search
warrant authorizing a nighttime search despite failing to make a particularized
showing that a nighttime search was necessary either to preserve evidence or to
protect the safety of the officers executing the warrant. 265 N.W.2d at 836. Upon observing several people enter and leave
the defendant’s home and observing the defendant enter the home, the officers
executed the warrant shortly after 9 p.m.
Id. Despite being unable to see inside the home
because the curtains were drawn, the officers entered the slightly open door
and conducted a search, finding and seizing illegal drugs and other
Our decision not
to suppress the evidence was based on our conclusion that the error was not of
a constitutional nature. Id. at 841. In support of this conclusion, we noted that
“the intrusion was not the kind of nighttime intrusion—with people being roused
out of bed and forced to stand by in their night clothes while the police
conduct the search—that our statutory rule against nighttime execution of
search warrants is primarily designed to prevent.”
to Lien, in this case the police
The majority distinguishes Lien based on the fact that “the police had no basis to believe that Jackson had not yet entered [a] period of nighttime repose,” an interest that the majority determines section 626.14 is designed to protect. While I agree that the police had more information regarding the state of the home’s occupants in Lien before executing the warrant than was available here, I do not agree that such a distinction is relevant, much less dispositive, in this case.
The majority cites no rule or case law that precludes the State from introducing evidence regarding the state of the home’s occupants at the time of execution of a warrant. In Lien, we made an objective inquiry, considering all of the relevant facts and circumstances concerning the effect of the unlawful nighttime search on the occupant. 265 N.W.2d at 841. In that case, it just so happened that most of those facts and circumstances came to light before the police entered the home. Nevertheless, our inquiry concerns the effect of the unlawful nighttime search on the occupants of the home, regardless of police knowledge. Here, it is the facts that came to light at the time of execution of the warrant that justify not suppressing the evidence, and in the absence of some clear prohibition on consideration of such evidence, the evidence should be considered. For purposes of suppression under section 626.14, the question of when the police learned that Jackson and her children were not roused from sleep is not as relevant as the fact that Jackson and her children were not roused from sleep.
We also emphasized
in Lien that the error committed was
attributable to the magistrate, not to the police, and that the police acted in
“good faith.” 265 N.W.2d at 840. Indeed, as is recognized by the majority,
section 626.14 is directed at police conduct.
The majority’s desire to avoid “encourag[ing] the police to play the odds
by ignoring the statutory timeframe” is commendable and a worthwhile goal, but
it is irrelevant to this case because the police actually obtained a warrant
authorizing a nighttime search. As we
noted in Lien, “[l]ittle more can be
expected of a police officer who gathers evidence, presents it to a magistrate,
and receives a warrant.” Id. at 840 n.1 (citing Stone v. Powell, 428
If different facts are posited, e.g., the occupants of the home are asleep at the time the warrant is executed, the warrant does not authorize a nighttime search, or there is evidence of what the majority fears might happen—that the police are “play[ing] the odds” in ignoring the statutory requirements—there is little doubt the analysis would change as well. But those are not our facts; here, as in Lien, the facts support a conclusion that, at most, we have a technical violation of section 626.14, and I would therefore affirm the court of appeals.
I would dismiss
Jackson’s constitutional argument on the basis of Lien, where we stated that the error of conducting an unauthorized
nighttime search under section 626.14 in that case was not of a “constitutional
nature.” 265 N.W.2d at 841. We concluded that execution of the warrant
did not violate the defendant’s rights under the Fourth Amendment to the United
States Constitution because the warrant was executed at a reasonable hour and
the search did not entail the type of police conduct that section 626.14 was
designed to prevent: rousing people out of bed and making them stand by in
their night clothes while the search is conducted.
But even if I
disagreed with our constitutional analysis in Lien, I would reject the majority’s constitutional analysis
here. First, it is unclear to me why the
majority addresses the constitutional issue at all once it concludes that the
statutory violation warrants suppression.
We avoid constitutional rulings if an issue can be decided on other
grounds. See State v. Bourke, 718 N.W.2d 922, 926 (
substance of the constitutional analysis, the majority correctly notes that
“the Supreme Court has never held that a nighttime search implicates the
reasonableness requirement of the Fourth Amendment.” See
Even if I agreed
that the nighttime search violation in this case implicates the Fourth Amendment,
the question before us today is whether the evidence obtained must be
suppressed. Not every Fourth Amendment violation requires
application of the exclusionary rule. See
The majority summarily concludes that suppression of the evidence in this case will have an “appreciable deterrent effect” on police misconduct but fails to demonstrate why that is so. The failure to comply with the nighttime search warrant statute in this case was attributable to the judge who issued the warrant, not to the police, and courts do not consider the deterrent effect of suppression on judges and magistrates for purposes of determining whether the exclusionary rule should be applied. See Leon, 468 U.S. at 916-17 (explaining that the exclusionary rule is not intended to deter the mistakes of judges and magistrates).
The Court in Leon explained that there is rarely a significant deterrent effect when an officer acts in good faith within the scope of a warrant:
In most such cases, there is no police illegality and thus nothing to deter. It is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient. “[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.”
Id. at 920-21 (quoting Powell, 428 U.S. at 498 (Burger, C.J., concurring)).
As the majority correctly observes, an officer’s reliance on a judge’s mistaken determination must be objectively reasonable, and this standard requires that the officer have “reasonable knowledge of what the law prohibits.” Id. at 919-20 n.20. We have held that facts in an affidavit revealing that the defendant is involved in drug-related activity can justify inclusion of a nighttime search provision in a warrant. See Bourke, 718 N.W.2d at 928-29 (nighttime search authorization was valid where the affidavit indicated that defendant, who was aware that the police knew of his activities, was at large and could destroy evidence on his property before morning); State v. Saver, 295 Minn. 581, 582, 205 N.W.2d 508, 508-09 (1973) (nighttime search authorization was valid where the affidavit stated that a witness had seen the defendant selling drugs).
In declaring that
the only justification provided to the court in support of the nighttime
authorization was the officer’s statement that “[t]his investigation has led
your affiant into the nightime [sic] scope of search warrant,” the majority
fails to consider the officer’s affidavit in its entirety. The supporting affidavit stated that
Even if I believed that the nighttime search violation in this case implicates the Fourth Amendment, I would conclude that suppression of the evidence is not required because suppression would not deter wrongful police activity and because the officers reasonably relied on the judge’s authorization of the nighttime search.
I would affirm our holding in Lien that a technical violation of Minn. Stat. § 626.14 does not implicate a defendant’s rights under the Fourth Amendment, and even if Jackson’s Fourth Amendment rights were implicated in this case, I would hold that the exclusionary rule does not apply.
ANDERSON, Russell A., Chief Justice (dissenting).
I join in the dissent of Justice G. Barry Anderson.
GILDEA, Justice (dissenting).
I join in the dissent of Justice G. Barry Anderson.
 A court trial on stipulated facts under Lothenbach is a means of preserving the defendant’s right to appeal a pretrial suppression motion, which a guilty plea would extinguish. Lothenbach, 296 N.W.2d at 857-58; see also Minn. R. Crim. P. 26.01, subd. 3.
 However, vessels not on the land could be searched day and night. Lasson, supra at 54 n.17.
 Because we engaged primarily in a constitutional analysis in Lien, we did not specifically hold that suppression was not required because the violation did not subvert the basic purpose of the nighttime search statute. However, we did conclude that the violation was merely technical and that it was not the type of violation that the statute aims to prevent. Lien, 265 N.W.2d at 840-41.
 For a detailed discussion of the historical aversion to nighttime searches, see Part I of this opinion.
 In Hudson, five justices, including Justice Kennedy who wrote a concurring opinion, joined parts I through III of the opinion. 126 S. Ct. at 2161. In discussing the holding of the case, we therefore rely only on those parts, which represent the opinion of the Court.
note that the dissent agrees that the rule announced in
 We specifically reject the dissent’s assertion that we have failed to consider the police affidavit in its entirety by not concluding that the assertions that Dawson “dropped methamphetamine off at the Jackson residence and that Jackson also sells methamphetamine from her residence” justify a nighttime search. While such facts do support the issuance of a daytime search warrant, they do not justify a nighttime search warrant—a conclusion that even the state does not contest.
 The state does not directly cite United States v. Leon, 468 U.S. 897 (1984). The dissent supports its position that we should not suppress the evidence seized as the result of the illegal nighttime search of Jackson’s home by citing to the “good faith” exception the Supreme Court applied in Leon. 468 U.S. at 919-20. We note, however, that we have consistently declined to adopt, much less even address, the Leon “good faith” exception. See State v. Harris, 589 N.W.2d 782, 791 n.1 (Minn. 1999) (“[W]e need not address the state’s request for us to adopt the ‘good faith’ exception to the warrant requirement * * * .”); State v. Zanter, 535 N.W.2d 624, 634 (Minn. 1995) (“The state has asked us to adopt a ‘good faith’ exception to the warrant requirement of article I, section 10 of the Minnesota Constitution. * * * But, because under the specific facts of the present case we believe that the good faith of the police, which we do not question, cannot cure the clear insufficiency of the third warrant application, we decline at this time to address the applicability of a good faith exception.”); State v. Lindsey, 473 N.W.2d 857, 864 n.4 (Minn. 1991) (“[W]e need not and do not address the state’s contention that this court should follow the so-called good faith exception to the exclusionary rule adopted and applied by the United States Supreme Court * * * .”); State v. McCloskey, 453 N.W.2d 700, 701 n.1 (Minn. 1990) (“In view of our decision we do not address the issue of whether this court should follow United States v. Leon * * * .”).
 See, e.g., In re Welfare of B.R.K., 658 N.W.2d 565, 578-80 (Minn. 2003) (warrantless search of a home); State v. Larsen, 650 N.W.2d 144, 147-49, 154 (Minn. 2002) (warrantless search of fish house); State v. Hardy, 577 N.W.2d 212, 217 (Minn. 1998) (no probable cause to search).
majority emphasizes that the search in this case took place in “
 Furthermore, by addressing the constitutional question after resolving the case on statutory grounds, the majority risks that the last 12 pages of its opinion will be read as mere dicta.
 As an aside, I agree with the
majority’s recognition that the Supreme Court’s decision in Hudson v. Michigan, __