United States v. Richard Charles Berry Rhonda Sue Berry, 113 F.3d 121 (8th Cir. 1997). · Go Syfert
United States v. Richard Charles Berry Rhonda Sue Berry, 113 F.3d 121 (8th Cir. 1997). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, 2004–2014 · 2 courts · …must shoulder the ultimate responsibility for the clerical error in the warrant. at p. 124 ✓
40 citation events (36 in the last 25 years) across 8 distinct courts.
Strongest positive: State Ex Rel. Two Unnamed v. Peterson (wis, 2015-07-16)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
examined Cited as authority (rule) State Ex Rel. Two Unnamed v. Peterson (6×) also: Cited "see", Cited "see, e.g."
Wis. · 2015 · confidence medium
See also Harris, 324 F.3d at 606 (upholding a nighttime search performed two hours and 15 minutes after the warrant was issued); Tucker, 313 F.3d at 1261 (same, one hour and 10 minutes); Berry, 113 F.3d at 122 (same, 45 minutes); Boyance, 398 F.2d at 897 (holding that a nighttime search performed 90 minutes after issuance of a warrant was unconstitutional because there was no indication that "the evidence within the house would be removed, hidden or destroyed before morning").
examined Cited as authority (rule) Three Unnamed v. Gregory A. Peterson (3×) also: Cited "see", Cited "see, e.g."
Wis. · 2015 · confidence medium
See also Harris, 324 F.3d at 606 (upholding a nighttime search performed two hours and 15 minutes after the warrant was issued); Tucker, 14 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz 313 F.3d at 1261 (same, one hour and 10 minutes); Berry, 113 F.3d at 122 (same, 45 minutes); Boyance, 398 F.2d at 897 (holding that a nighttime search performed 90 minutes after issuance of a warrant was unconstitutional because there was no indication that "the evidence within the house would be removed, hidden or destroyed before morning").
examined Cited as authority (rule) Francis D. Schmitz v. Honorable Gregory A. Peterson (3×) also: Cited "see", Cited "see, e.g."
Wis. · 2015 · confidence medium
See also Harris, 324 F.3d at 606 (upholding a nighttime search performed two hours and 15 minutes after the warrant was issued); Tucker, 14 No. 2014AP296-OA & 2014AP417-W through 2014AP421-W & 2013AP2504-W through 2013AP2508-W.akz 313 F.3d at 1261 (same, one hour and 10 minutes); Berry, 113 F.3d at 122 (same, 45 minutes); Boyance, 398 F.2d at 897 (holding that a nighttime search performed 90 minutes after issuance of a warrant was unconstitutional because there was no indication that "the evidence within the house would be removed, hidden or destroyed before morning").
cited Cited as authority (rule) United States v. Long
D.S.D. · 2014 · confidence medium
The judge is the final reviewing official who “must shoulder the ultimate responsibility for the clerical error in the warrant.” United States v. Berry, 113 F.3d 121, 124 (8th Cir.1997).
discussed Cited as authority (rule) United States v. Kelley
8th Cir. · 2011 · confidence medium
Because the night-time search was not unreasonable, we need not consider, as we do when Rule 41(e)(2)(A)(ii) applies and has been violated, “whether the night search prejudiced the defendants or whether there was reckless disregard of the proper procedure for a night search by the officials involved.” United States v. Berry, 113 F.3d 121, 123 (8th Cir.1997); see United States v. Bieri, 21 F.3d 811, 816 (8th Cir.), cert. denied, 513 U.S. 878 , 115 S.Ct. 208 , 130 L.Ed.2d 138 (1994); United States v. Schoenheit, 856 F.2d 74, 76-77 (8th Cir.1988).
discussed Cited as authority (rule) United States v. Medearis (2×) also: Cited "see, e.g."
D.S.D. · 2011 · confidence medium
See Hessman, 369 F.3d at 1019-23 ; United States v. Berry, 113 F.3d 121, 123-24 (8th Cir.1997); United States v. Freeman, 897 F.2d 346, 348-50 (8th Cir.1990); see also Hornbeck, 118 F.3d at 617-18 (failure to timely file return and provide defendant with inventory of property seized, in violation of tribal law, did not require suppression); United States v. Rome, 809 F.2d 665, 668-71 (10th Cir.1987) (suppression of evidence obtained from a search warrant, issued in violation of Rule 41, would not serve the “remedial objectives” of the Exclusionary Rule, as approved by Leon).
discussed Cited as authority (rule) United States v. Kelley
E.D. Ark. · 2009 · confidence medium
United States v. Harris, 324 F.3d 602, 606 (8th Cir.2003); United States v. Berry, 113 F.3d 121, 123 (8th Cir.1997); United States v. Bieri, 21 F.3d 811, 816 (8th Cir.1994); United States v. Burgard, 551 F.2d 190, 193 (8th Cir.1977); United States v. Burke, 517 F.2d 377, 386-87 (2nd Cir.1975).
cited Cited as authority (rule) United States v. Luken
D.S.D. · 2007 · confidence medium
Instead, we consider whether the defendant is prejudiced or reckless disregard of proper procedure is evident.” United States v. Berry, 113 F.3d 121, 123 (8th Cir.1997).
discussed Cited as authority (rule) United States v. Watson
6th Cir. · 2007 · confidence medium
See, e.g., Ware, 338 F.3d at 482-83 (holding that good-faith exception applied where affiant officer executed warrant and reasonably believed he *434 had received an anticipatory warrant but through clerical error it authorized only an “immediate search”); United States v. Berry, 113 F.3d 121, 124 (8th Cir.1997) (holding that good-faith exception applied where affiant officer had executed warrant and reasonably believed it authorized a search of general areas although through clerical error it authorized a search for more limited area).
discussed Cited as authority (rule) United States v. Watson
6th Cir. · 2007 · confidence medium
See, e.g., Ware, 338 F.3d at 482–83 (holding that good-faith exception applied where affiant officer executed warrant and reasonably believed he had received an anticipatory warrant but through clerical error it authorized only an “immediate search”); United States v. Berry, 113 F.3d 121, 124 (8th Cir. 1997) (holding that good-faith exception applied where affiant officer had executed warrant and reasonably believed it authorized a search of general areas although through clerical error it authorized a search for more limited area).
discussed Cited as authority (rule) United States v. Maali
M.D. Fla. · 2004 · signal: cf. · confidence medium
Sep. 2, 2003) (rejecting claim that warrant was invalid where, due to clerical error, warrant reflected that it was issued on August 31 but executed on August 27); United States v. Albert, 195 F.Supp.2d 267, 274 (D.Mass.2002) (concluding that omission from warrant of reference to list of items to be seized was merely “a clerical error that posed no real risk to legitimate privacy interests”); cf. United States v. Berry, 113 F.3d 121, 124 (8th Cir.1997) (reversing district court’s grant of motion to suppress which had been based on warrant’s failure to specifically authorize nighttime s…
cited Cited as authority (rule) United States v. Jay Todd Hessman
8th Cir. · 2004 · confidence medium
The magistrate is the final reviewing official, who “must shoulder the ultimate responsibility for the clerical error in the warrant.” United States v. Berry, 113 F.3d 121, 124 (8th Cir. 1997).
cited Cited as authority (rule) United States v. Jay Todd Hessman
8th Cir. · 2004 · confidence medium
The magistrate is the final reviewing official, who “must *1023 shoulder the ultimate responsibility for the clerical error in the warrant.” United States v. Berry, 113 F.3d 121, 124 (8th Cir.1997).
discussed Cited as authority (rule) United States v. Mike Ferguson
8th Cir. · 2002 · confidence medium
Although a nighttime search can be particularly intrusive, Jones v. United States, 357 U.S. 493, 498 , 78 S.Ct. 1253 , 2 L.Ed.2d 1514 (1958), a search is not unconstitutional simply because it is conducted at night, United States v. Berry, 113 F.3d 121, 123 (8th Cir.1997).
cited Cited as authority (rule) United States v. Jose O. Martinez, Also Known as Daniel Alejo, Also Known as Pedro C. Alejo
8th Cir. · 1999 · confidence medium
United States v. Berry, 113 F.3d 121, 122 (8th Cir.1997).
cited Cited as authority (rule) United States v. Larry D. Rogers
8th Cir. · 1998 · confidence medium
United States v. Berry, 113 F.3d 121, 122 (8th Cir.1997).
cited Cited as authority (rule) United States v. Larry D. Rogers
8th Cir. · 1998 · confidence medium
United States v. Berry, 113 F.3d 121, 122 (8th Cir. 1997).
cited Cited "see" United States v. Paul Beckmann
8th Cir. · 2015 · signal: see · confidence high
See United States v. Berry, 113 F.3d 121, 123 (8th Cir.1997) (analyzing the “reckless disregard” issue as akin to “bad faith”).
cited Cited "see" United States v. Donald Turner, Jr.
8th Cir. · 2015 · signal: see · confidence high
See United States v. Berry, 113 F.3d 121, 123 (8th Cir.1997) (analyzing the “reckless disregard” issue as akin to “bad faith”).
examined Cited "see" United States v. Kenneth Harris (3×) also: Cited "see, e.g."
8th Cir. · 2003 · signal: see · confidence high
See Berry, 113 F.3d at 123 .
examined Cited "see" United States v. Kenneth L. Harris (3×) also: Cited "see, e.g."
8th Cir. · 2003 · signal: see · confidence high
See Berry, 113 F.3d at 123 .
discussed Cited "see" United States v. Burch, Larry D.
D.C. Cir. · 1998 · signal: see · confidence high
See United States v. Berry, 113 F.3d 121, 123 (8th Cir.1997) (holding that § 879 governs search for marijuana, rather than Rule 41); Mason v. United States, 719 F.2d 1485, 1489 (10th Cir.1983) (interpreting Wyoming parallels to Rule 41 and § 879 such that the specific statutory provisions sanctioning nighttime search for controlled substances apply); United States *1325 v. Alatishe, 616 F.Supp. 1406, 1411 (D.D.C.1985) (‘"Where there is a specific statute relating to the issuance and execution of search warrants, that particular statute as a general matter controls over any more diffuse sea…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellant,
v.
Richard Charles BERRY; Rhonda Sue Berry, Appellees
96-3979.
Court of Appeals for the Eighth Circuit.
Jun 13, 1997.
113 F.3d 121
Patrick Harris, Assistant U.S. Attorney, argued, Little Rock, Arkansas, for appellant., J. Blake Hendrix, Little Rock, Arkansas, argued, for appellees (William C. McArthur, on the brief, for appellee Rhonda Sue Berry).
Bowman, Hansen, Murphy.
Cited by 23 opinions  |  Published
BOWMAN, Circuit Judge.

The United States appeals from the decision of the District Court 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 on charges of conspiring to distribute marijuana and to possess marijuana with intent to distribute, and possessing marijuana with intent to distribute. See 21 U.S.C. §§ 841, 846 (1994). The indictments arose from the seizure, pursuant to a search warrant, of a large quantity of marijuana from a pickup truck parked at the Berrys’ address and from the Berrys’ residence.

In October 1994, a person who claimed to have been working as a courier for the Berrys and for their alleged co-conspirators, ferrying marijuana from Houston, Texas, to Little Rock, contacted the narcotics unit of the Little Rock Police Department (LRPD) to report his illegal 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 the residence was set up at 3:00 p.m. and continued into the night, as a number of persons visited the residence for short periods of time. At 12:30 a.m. on October 28,1994, Cook took a search warrant application and supporting affidavit that he had prepared to the home of a Little Rock municipal judge, who attested to Cook’s signature on the affidavit and authorized the warrant. Officers from the LRPD (including Cook), the North Little Rock Police Department, the state police, and the federal Drug Enforcement Administration executed the warrant forty-five minutes later, at approximately 1:15 a.m.

The Berrys moved to suppress the marijuana discovered and seized during the 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 ordered the evidence suppressed, and the government appeals.

“We may reverse 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, 1388 (8th Cir.1993)).

In the affidavit in support of the warrant, Cook stated that the Berrys’ residence “is located on a small dead end street and that the approach of officers in daylight hours would be readily apparent to persons in or around the residence.” Affidavit for Search and Seizure Warrant ¶ 9. Therefore, Cook continued, “for the safety of the 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, curtilage and vehicles located at [the Berrys’ address], [1] and that said warrant be issued for a search of the residence anytime of the day or night.” Id. (footnote added).

The operative language in the actual warrant, however, does not track the language in the affidavit. The warrant directs officers to search “[t]he residence, curtilage and vehicles” at the Berrys’ address for 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 at 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:[*123] “Having found reasonable cause to believe that the said evidence described herein will be found, you are hereby commanded to search the storage room located off the ear-port 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.

In its order, the District Court held that 21 U.S.C. § 879 (1994) applies to this warrant, and we agree. See Gooding v. United States, 416 U.S. 430, 439, 94 S.Ct. 1780, 1785, 40 L.Ed.2d 250 (1974). Section 879 reads:

A search warrant relating to offenses involving controlled substances 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 court concluded that the evidence should be suppressed because the warrant’s language did not specifically authorize a night search of the premises. We hold that it was not required to.

For search warrants that do not involve controlled substances, night searches are governed by Federal Rule of Criminal Procedure 41(c)(1): “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.” Given the similarities in the language of the rule and of the statute, we believe our cases interpreting Rule 41(e)(1) are relevant here, 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, we consider whether the “defendant is prejudiced or reckless disregard of proper procedure is evident.” United States v. Bieri, 21 F.3d 811, 816 (8th Cir.), cert. denied, 513 U.S. 878, 115 S.Ct. 208, 130 L.Ed.2d 138 (1994); see also United States v. Freeman, 897 F.2d 346, 349-50 (8th Cir.1990) (concluding that “non-fundamental” Rule 41 violations, where there is neither prejudice nor reckless disregard, do not require suppression); Schoenheit, 856 F.2d at 77 (“the prejudicial error test controls”). Thus we consider whether the night search prejudiced the defendants or whether there was reckless disregard of the proper procedure for a night search by the officials involved. If so, then the search is unconstitutional and the fruits of the search must be suppressed.

In Bieri, the Court applied the prejudice portion of the test to the facts of that case, where a night search had been executed without “appropriate provision in the warrant,” Fed.R.Crim.P. 41(c)(1), and held 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 law 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 application, did not go to a judge’s home at 12:30 in the morning for authorization with the idea that he would execute the warrant the next day, or on some later day. Cook obviously felt some exigency, and when he participated in the search forty-five minutes later, 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 evidence exists that the officers 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 exclusionary rule to the alleged violation of § 879, and such violation is in reality of constitutional magnitude, the decision to suppress nevertheless may be[*124] reversed if the searching officers acted in good faith in executing the warrant. See United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984) (announcing good-faith exception to exclusionary rule if executing officers’ reliance on invalid search warrant is “objectively reasonable”); see also Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984) (applying good-faith exception where officer and issuing judge believed warrant authorized search for murder evidence, but on its face it authorized search for drug evidence). The District Court concluded that it was not objectively reasonable for Cook and the other searching officers 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 wording of the concluding paragraph in the warrant was the result of some sort of clerical error, and that the language remained in the warrant as it ultimately was authorized and executed because of the inattention of Cook and the issuing judge. We know this from examining the affidavit, which clearly anticipated a night search of all areas, and the first part of the warrant, where all areas to be searched are listed. Notably, no mention is made of a “storage room located off the carport” anywhere in the affidavit (which is more than five pages long and mentions numerous times the Ford flatbed truck where the bulk of the marijuana was found) or in the first page of the warrant. That area is not specifically identified at ah until the second page and final few lines of the warrant. Moreover, Cook not only prepared the affidavit and the warrant, 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 whether reliance on a search warrant was objectively reasonable under the totality of the circumstances, it is appropriate to take into account the knowledge that an officer 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, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). Given the circumstances of the warrant’s preparation and authorization, we have no difficulty in concluding that Cook reasonably believed he had authority for a night search of all areas listed in the affidavit. In addition, it is important to recall here that “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges.” Leon, 468 U.S. at 916, 104 S.Ct. at 3417. The municipal judge signed both the affidavit and the warrant and, as the final reviewing 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 the exclusionary rule is not served by suppression of the evidence seized 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 unconstitutional, the evidence would be admissible under the good-faith exception to the exclusionary rule.

The order granting the Berrys’ motion to suppress is reversed, and the case is remanded to the District Court.

1

. The Berrys in their motion to suppress challenged the 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.