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UNITED STATES v. GOODING

June 11, 1971

UNITED STATES of America
v.
Lonnie GOODING


Gesell, District Judge.


The opinion of the court was delivered by: GESELL

GESELL, District Judge.

 Defendant is charged with possession of heroin and narcotics paraphernalia in violation of 21 U.S.C. § 174 and 26 U.S.C. § 4704(a). He has moved to suppress the physical evidence seized pursuant to Magistrate's Search Warrant No. D11-448-71CR, on the grounds that the warrant was executed in the nighttime in violation of 23 D.C. Code § 523(b), which reads as follows:

 
A search warrant may be executed on any day of the week and, in the absence of express authorization in the warrant pursuant to section 23-521(f)(5), shall be executed only during the hours of daylight.

 Section 23-521(f)(5) provides as follows:

 
A search warrant shall contain --
 
* * *
 
(5) a direction that the warrant be executed during the hours of daylight or, where the judicial officer has found cause therefor, including one of the grounds set forth in section 23-522(c)(1), an authorization for execution at any time of day or night * * *.
 
The application may also contain --
 
(1) a request that the search warrant be made executable at any hour of the day or night, upon the ground that there is probable cause to believe that (A) it cannot be executed during the hours of daylight, (B) the property sought is likely to be removed or destroyed if not seized forthwith, or (C) the property sought is not likely to be found except at certain times or in certain circumstances * * *.

 The above provisions were added to the D.C. Code by the District of Columbia Court Reform and Criminal Procedure Act of 1970, and became effective February 1, 1971. The warrant was issued by a United States Magistrate on February 11, 1971, and executed by the Metropolitan Police at 9:30 P.M. on the following day. The daylight hours ended well before 9:30 P.M. on that date. None of the grounds set forth in section 23-522(c)(1) were contained either in the application or in the warrant itself. Thus, if section 523(b) is applicable under these circumstances, the seizure was unlawful.

 The Government takes the position that the provisions cited are inapplicable to warrants issued in connection with violations of federal narcotics laws. The application for the search warrant was captioned "Affidavit in Support of a Request for a United States Magistrate's Search Warrant for Violation of the Narcotics Laws of the United States Code, Title 26, Section 4704a." The warrant also stated as ...


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