with whom Mr. Justice Brennan and Mr. Justice Marshall , concur, dissenting.
The petitioner is charged' with possession of heroin and narcotics paraphernalia in violation of 21 U. S. C. § 174 (1964 ed.) and 26 U. S. C. §4704 (a) (1964 ed.). He moved the District Court to suppress certain evidence seized from his home pursuant to a search warrant secured by and directed to the Metropolitan Police Department of the District of Columbia. The District Court granted the suppression motion on the ground that the search was conducted at night in violation of D. C. Code §§ 23-521-523 (1973) which limit search warrant execution to daylight hours absent specific contrary authorization founded upon the judicial officer’s determination
“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 . . . .” D. C. Code § 23-522 (c) (1).1
Though the warrant here directed a search “at any time in the day or night,” none of the grounds set forth in § 23-522 (c) (1) were contained in either the application or the warrant itself. The police obtained the warrant on February 11, 1971, but they failed to execute it during the day of February 12, waiting instead until 9:30 p. m. on that date. Since they delayed execution until well after the daylight hours had ended, *460the seizure was invalid if governed by D. C. Code §§ 23-521 to 23-523.
The Court holds, however, that the D. C. Code provisions are inapplicable and that the search is-governed by 21 U. S. C. § 879 (a). That section, became effective October 27,1970, as part of the Controlled Substances Act, 84 Stat. 1242, 21 U. S. C. § 801 et seq.; it relates to search warrants issued in connection with offenses involving controlled substances.' The D. C. Code provisions, however, became effective February 11, 1971, as part of the District of Columbia Court Reform and Criminal' Procedure Act. The latter Act did not distinguish between local and federal prosecutions in its procedural innovations.2 The purpose of the restriction upon nighttime searches was to limit such intrusions to those instances where there is “some justification for it,”3 thus implementing the “policy generally disfavoring nighttime executions, nighttime intrusions, more characteristic of a ‘police state’ lacking in the respect for due process .and the right of privacy dictated by the U. S. Constitution and history •....” 4
Approximately 60%.of the search warrants issued in the District of Columbia relate to narcotics violations. Congress was aware of this, and, if it had intended to except federal narcotics search warrants from the protections against unnecessary nighttime “police ‘ state” searches, one would expect an expression of such intent. I agree with Judge Gesell that no such intent is indicated. *461Thus,- “ [wjhatever be the standards generally for issuance of a nighttime search warrant in federal narcotics cases in other parts of the country . . . the existence of 21 U. S. C, § 879 (a) does not remove such cases from the explicit requirements for search warrants in the District of Columbia under the newly enacted Title 23, D. C. Code.” 328 F. Supp. 1005, 1007. I would reverse the Court of Appeals and sustain the District Court’s suppression order.
D. C. Code § 23-523 (b) directs that all search warrants are to be executed only during daylight hours, absent express authorization pursuant to D. C. Code § 23-521 (f). Section 23-521 (f) (5) allows authorization for nighttime execution where the “judicial officer has 'found cause therefor, including one of the grounds set forth-in section 23-522 (c) (1) . . . .”
Thus various rules are applicable in the United States District Court for the District of Columbia which are not applicable in district courts elsewhere in the country. See, e. g., D. C. Code § 23-1322, dealing with detention prior to trial.
Hearings on Crime in the National Capital before the Senate Committee on the District of Columbia, 91st Cong., 1st Sess., pt. 4, p. 1404 (1969).
S. Rep. No. 91-538, p. 12 (1969).