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—SENSTEEEVE_ Manl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1 a *«kEEEDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls: 5§-2.2 |Execution In addition to possessing a lawfully acquired warrant, Agents must adhere to statutory and constitutional requirements during the execution of a warrant. | xkEEEDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls: 5-2.2.1 Time|of Execution (1) General Rule: Rule 41(c) (1) FED.R.CRIM.P., provides "The warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime." The rule also defines "daytime" to mean the hours from 6:00 a.m. to 10:00 p.m., according to local time. (2) Nighttime Execution: Before a valid nighttime (10:00 p.m. to 6:00 a.m.) search under a warrant can be made, two requirements must be satisfied. Failure to comply with either of the requirements below will make a nighttime search warrant invalid, and thus any evidence seized during such search may be subject to suppression. The two requirements are as follows: (a) In the search warrant (Form A.O. 93), the magistrate must specifically indicate on the warrant itself that he/she is authorizing a nighttime search. The magistrate does this by selecting the option on the form which provides for service at any time in the day or night and crossing out the other option, which provides daytime service. Additionally, it has been held that a magistrate writing on the search warrant: “Authorized for Nighttime Service" and signing the search warrant is sufficient to constitute authority for nighttime execution. (b) Rule 41 also requires that the supporting affidavit specify reasons amounting to a showing of good cause for nighttime execution. Therefore, care must be exercised in justifying any search planned for the period 10:00 p.m. to 6:00 a.m. The rule does not expressly require a separate statement as to good cause for executing the search warrant in the nighttime. The affidavit read as a whole may be used to determine whether in fact such cause exists. A statement in the affidavit requesting nighttime service should be broad enough to include all the information contained in the affidavit. For example, "Your affiant requests that this search warrant be approved for service at any time of the day or night, based on all the information contained in this affidavit." Absent an abuse of discretion, the magistrate's a: of a cause for nighttime Printed: 05/05/2004 13:08:54 Page 7