# United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 96-3979

___________ United States of America, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Richard Charles Berry; Rhonda * Sue Berry, * *

Appellees. *

___________ Submitted: April 17, 1997 Filed: May 6, 1997

___________ Before BOWMAN, HANSEN, and MURPHY, Circuit Judges.

___________ BOWMAN, Circuit Judge.

The U nited States appeals from the decision of the District Cour t granting the appellees’ motion to suppress. We reverse and remand.
Richard Charles Berry and his wife, Rhonda Sue Berry, of North Little Rock, Arkansas, were indicted in April 1996 by a federal grand jury o n charges of conspiring to distribute marijuana and to possess marijuana wit h intent to distribute, and possessing marijuana with intent to distribute. See 18 U.S.C. §§ 841, 846 (1994). The indictmen ts arose from the seizure, pur suant to a search warrant, of a large quantity of marijuana from a pickup truck parked at the Berrys’ address and f rom the Berrys’ residence.

### -2- In October 1994, a person who claimed to have been working as a courie r for the Berrys and for their alleged co-conspirators, ferryin g marijuana from Houston, Texas, to Little Rock, contacted the narcotics uni t of th e Little Rock Police Department (LRPD) to report his illega l activities. The courier became a confidential informant and on October 27 , 1994, he advised Joe Cook, a detective with the LRPD, that a Ford flatbed pickup truck equipped with a secret compartment and used for transporting marijuana was parked at the Berrys’ residence. Cook knew that the truck had not been there earlier in the day. Police surveillance of th e residence was set up at 3:00 p.m. and continued into the night, as a numbe r of persons visited the residence for short perio ds of time. At 12:30 a.m. on October 28, 1994, Cook took a search warrant application and supporting aff idavit that he had prepared to the home of a Little Rock municipa l judge, who attested to Cook’s signature on the affidavit and authorized th e warrant. Officers from the LRPD (including Cook), the North Little Rock Police Department, the state police, and the federal Drug Enforcemen t Admin istration executed the warrant forty-five minutes later, a t approximately 1:15 a.m.

The Berrys moved to suppress the marijuana discovered and seize d during th e course of the search, alleging several grounds. After a hearing, the District Court granted the motion, holding that the warrant on its face authorized a night search of only a very limited area, an area where no contraband was found. The court ordere d the evidence suppressed, and the government appeals. “We may r everse a suppression order not only if it rests on clearly erroneous findings of fact, but also ‘if the ruling reflects an erroneous view of the applicable law.’” United States v. LaMorie , 100 F.3d 547, 552 (8th Cir. 1996) (quoting United States v. Riedesel , 987 F.2d 1383, 138 8 (8th Cir. 1993)).

### The Berrys in their motion to suppress challenged the 1 

### accuracy of the address used in the affidavit and warrant, but the District Court rejected that ground for suppression during the hearing. The Berrys have not cross-appealed that decision.
-3- In the affidavit in support of the warrant, Cook stated that th e Ber rys’ residence “is located on a small dead end street and that th e approach of officers in daylight hours would be readily apparent to person s in or around the residence.” Affidavit for Search and Seizure Warrant ¶ 9

. Therefore, Cook continued, “for the safety of th e serving officers and for the protection of the evidence sought, the search and seizure warrant can only be safely and successfully executed under the cover of darkness.” Id

. Cook then asked that a warrant “be issued for a search of the residence, curt ilage and vehicles located at [the Berrys’ address], and that sai d 1 warrant b e issued for a search of the residence anytime of the day o r night.” Id. (footnote added).
The operative language in the actual warrant, however, does not track the l anguage in the affidavit. The warrant directs officers to searc h “[t]he residence, curtilage and vehicles” at the Berrys’ address fo r various items related to the Berrys’ distribution of marijuana, to seize and store the evidence, and to make a return of the warrant. No mention is made of the time a t which the search was to have been executed. Then, for reasons unknown (the only explanation that has been offered is a possible word processing glitch), the warrant wraps up with this paragraph : “Having found reasonable cause to believe that t he said evidence described herein will be found, you are hereby commanded to search the storage room located off the carpo rt of the residence located at [the Berrys’ address] anytime of the day or night.” On its face, the warrant does not authorize a night search of any other structures or any vehicles on the property.

### -4- In its or der, the District Court held that 21 U.S.C. § 879 (1994 ) applies to this warra nt, and we agree. See Gooding v. United States , 416 U.S. 430, 439 (1974). Section 879 reads:

A s earch warrant relating to offenses involvin g controlled substances may be served at any time of the day or nig ht if the judge or United States magistrate issuing th e war rant is satisfied that there is probable cause to believ e that grounds exist for t he warrant and for its service at such time.

The court concluded that the evidence should be suppressed because th e
war rant’s language did not specifically authorize a night search of th e premises. We hold that it was not required to.

For search warrants that do not invo lve controlled substances, night searches are governed by Federal Rule of Criminal Procedure 41(c)(1): “Th e warrant shall be served in the daytime, unless the issuing authority, by approp riate provision in the warrant, and for reasonable cause shown , autho rizes its execution at times other than daytime.” Given th e similarities in the language of the rule and of the statute, we believe ou r cases interpreting Rule 41(c)(1) are relevant he re, even though the search at issue was made pursuant to § 879. We have held that night searches are not per se unconstitutional and thus “suppression is not automatic” if Rule 41(c)(1) is violated. United States v. Schoenheit , 856 F.2d 74, 77 (8th Cir. 1988). Instead, w e consid er whether the “defendant is prejudiced or reckless disregard o f proper pr ocedure is evident.” United States v. Bieri , 21 F.3d 811, 81 6 (8th Cir.), cert. denied , 513 U.S. 878 (1994); see also United States v. Freema n , 897 F.2d 346, 349-50 (8th Cir. 1990) (concluding tha t “nonfundamental” Rule 41 violations, where there is neither prejudice nor reckless disregard, do not require suppression); Schoenheit , 856 F.2d at 77

### -5-

(“the prejudicial error test controls”). Thus we consider whether th e night search prejudiced the defendants or whether there was reckles s disregard of the proper procedure for a night search by the official s involved. If so, then the search is unconstitutional and the fruits of th e search must be suppressed.

In Bieri , the Court applied the prej udice portion of the test to the fac ts of that case, where a night search had been executed withou t “appropriate provision in the warrant,” Fed. R. Crim. P. 41(c)(1), and hel d that “the warrant was not unconstitutional and the [defendants] suffered no prejudice because authorization for a night search does not need to be listed on the warrant.” Bieri , 21 F.3d at 816. Surely, if this is the la w
as to night searches in violation of Rule 41(c)(1), then it applies with equal force to alleged § 879 violations, where the plain language of the statute does not even require “appropriate provision in the warrant.” We hold that the Berrys suffered no prejudice from the search.

Further, there was no “reckless disregard of proper procedure.” We think it safe to say that Cook, who prepared the affidavit and the warrant applicati on, did not go to a judge’s home at 12:30 in the morning fo r authorization with the idea that he would execute the warrant the next day , or on som e later day. Cook obviously felt some exigency, and when h e participated in the search forty-five minutes la ter, he and his colleagues clearly believed Cook had sought and received authority for a night search

. We hold that they did not act in bad faith, and therefore did not act in reckless disregard of proper procedure. See id. (“because no evidenc e exists that the offic ers acted in bad faith, it follows that there was no reckless disregard of proper procedure”). Even if we are mistaken about the application of the exclusionar y rule to the alleged violation of § 879, and such

### -6-

violat ion is in reality of constitutional magnitude, the decision t o suppress nevertheless may be reversed if the searching officers acted in good faith in executi ng the warrant. See United States v. Leon , 468 U.S. 897, 922 (1984) (announcing good-faith exception to exclusionary rule if
exec uting officers’ reliance on invalid search warrant is “objectivel y
reason able”); see also Massachusetts v. Sheppard , 468 U.S. 981 (1984 ) (applying good-faith exception where officer and issuing judge believe d
warra nt authorized search for murder evidence, but on its face i t authorized search for drug evidence). The District Court concluded that it was not objectively reasonable for Cook and the other searching officer s to rely on the warrant where it so plainly authorized a night search for only a limited area, and therefore held that the good-faith exception did not apply. We review de novo. See LaMorie , 100 F.3d at 555. It is apparent to us that the wordin g of the concluding paragraph in the war rant was the result of some sort of clerical error, and that th e lang uage remained in the warrant as it ultimately was authorized an d executed because of the inattention of Cook and the issuing judge. We kno w this from examining the affidavit, which clearly anticipated a night searc h of a ll areas, and the first part of the warrant, where all areas to b e search ed are listed. Notably, no mention is made of a “storage roo m located off the carport” anywhere in the affidavit (which is more than fiv e pages long and mentions numerous times the Ford flatbed truck where th e bulk of the marijuana was found) or in the first page of the warrant. Tha t area is not specifically identified at all until the second page and final few lines of the warr ant. Moreover, Cook not only prepared the affidavit and the w arrant, with the knowledge that he was seeking authority for a night search of the entire premises, but he also participated in executing the warrant. “This fact is significant because in assessing whethe r reliance on a

### -7-

search warrant was objectively reasonable under the totality of th e circumstances, it is appropriate to take into account the knowledge that
an off icer in the searching officer’s position would have possessed. ” United States v. Curry , 911 F.2d 72, 78 (8th Cir . 1990), cert. denied , 498 U.S. 1094 (1991). Given the circumstances of the warrant’s preparation an d author ization, we have no difficulty in concluding that Cook reasonabl y believe d he had authority for a night search of all areas listed in th e affidavi t. In addition, it is important to recall here that “th e
exc lusionary rule is designed to deter police misconduct rather than t o punish the errors of judges.” Leon , 468 U.S. at 916. The municipal judg e signed bot h the affidavit and the warrant and, as the final reviewin g authority, he must shoulder the ultimate responsibility for the clerical
error in the warrant. See Curry , 911 F.2d at 78. Thus, the purpose of th e exclusi onary rule is not served by suppression of the evidence seize d pursuant to the search at the Berrys’ address. See id.
We conclude that it was objectively reasonable for Cook and the other executing officers to believe that they had authority for a night search. Therefore, even if the search were unconstitutio nal, the evidence would be admissible under the good-faith exception to the exclusionary rule.

The orde r granting the Berrys’ motion to suppress is reversed, an d the case is remanded to the District Court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT