If a search warrant, in California, states that a “night search” is not approved, what is the definition of night in the eyes of the courts?

A search warrant was obtained 1 day prior to the execution and the judge did not approve a night search.  However, the search warrant was executed at 9:00pm. Isn’t that considered a night search?

Asked on June 14, 2009 under Criminal Law, California

Answers:

Cedric Joseph Severino / Law Offices of Cedric Joseph Severino

Answered 11 years ago | Contributor

Actually, night is considered by the courts to be the same as night considered by the rest of the world.  It means anytime after sunset to sunrise, therefore, if a warrant were not granted for a night search and was not served till 9:00 p.m., it violated the condition of the warrant.  However, while it is worthwhile to challenge this under a 1538.5 Motion to Suppress, it is unlikely that the products of the warrant will be excluded based on the violation of the night condition--so long as the warrant itself was based on sufficient probable cause.


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