by Max Brantley
The Arkansas Supreme Court today, in a 4-3 decision, blew a big hole in limits on issuance of warrants for nighttime searches. The ruling overturned a Pulaski circuit judge's decision to suppress evidence found in search of a Jacksonville trailer in a methamphetamine case. Officers said they obtained a warrant for a nighttime search (after finding drug paraphernalia in trash bags nearby) out of concern for safety of children in the trailer. That is not one of the exceptions for which a nighttime search had been allowed before, though police officer safety is. The Supreme Court said it was NOT broadening the rule to allow consideration of safety of others, but allowed the evidence anyway because the officers had acted in good faith.
I suspect police officers are smart enough to come up with all kinds of good faith reasons for searches not allowed by the rules of criminal procedure.
Justices Karen Baker and Robert Brown and Chief Justice Jim Hannah dissented and each wrote opinions separate from a general dissent. Hannah concluded that the majority, despite what it wrote, had effectively opened the door for searches sought on the pretext of protecting the safety of others. That seems a long way from the Fourth Amendment's requirement of probable cause and a description of the place to be searched and the things sought in the search. He said the majority had made a change in court rules that were "improper and unnecessary."