F I L E D
United States Court of Appeals
Tenth Circuit
AUG 23 2004
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 03-4202
PAULA PAKA KATOA, a.k.a. Paul
Katoa,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 02-CR-524-DKW)
Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack,
Federal Public Defender, with him on the briefs), Salt Lake City, Utah, for
Defendant-Appellant.
Diana Hagen, Assistant United States Attorney (Paul M. Warner, United States
Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.
Before SEYMOUR, ANDERSON and EBEL, Circuit Judges.
SEYMOUR, Circuit Judge.
Paula Paka Katoa entered a conditional guilty plea to one count of
possession of methamphetamine with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1). In his plea, he preserved the right to appeal the district court’s denial
of his motion to suppress evidence obtained in violation of the Fourth
Amendment. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I
The district court found the following facts, which are undisputed by the
parties. On September 12, 2001, Detective Darrell Dain of the West Valley City,
Utah, Police Department’s narcotics enforcement unit drafted an affidavit in
support of a search warrant for narcotics and associated paraphernalia at Mr.
Katoa’s residence. Detective Dain outlined in detail the facts justifying the
issuance of a “no-knock” warrant. In the affidavit, Detective Dain specifically
requested a search warrant authorizing unannounced day or night execution. 1
1
The affidavit stated, in relevant part:
WHEREFORE, your affiant prays that a Search Warrant be issued for
the seizure of said items:
at any time day or night because there is reason to believe it is
necessary to seize the property prior to it being concealed,
destroyed, damaged, or altered, or for other good reasons to
wit: . . . .
Your affiant believes that the cover of darkness is necessary
for police to arrive undetected at the residence and thereby, decrease
the chance any evidence could be concealed, destroyed, damaged, or
(continued...)
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Detective Dain reviewed the affidavit with a deputy District Attorney
before taking it to Utah District Court Judge L.A. Dever. He presented the
affidavit to Judge Dever along with a search warrant he had prepared from a
template. The warrant itself authorized a search of Mr. Katoa’s residence “[i]n
the day time with un-announced authority.” Rec., vol. I, doc. 24 at 33. Detective
Dain swore under oath that the documents were true and correct to the best of his
knowledge, and signed the affidavit. Judge Dever read and signed the affidavit
and warrant.
That evening, after ten o’clock, an armed SWAT team executed the no-
knock warrant by ramming the door of Mr. Katoa’s residence. After the SWAT
team was inside, Detective Dain reviewed the search warrant with Mr. Katoa and
Mr. Katoa’s girlfriend. While reviewing the warrant, the detective noticed he had
not changed the search warrant template and it still read “day time service.” Id.,
doc. 28 at 3. He immediately called Judge Dever and notified him of the drafting
error. The judge told Detective Dain he had clearly understood the warrant to be
1
(...continued)
altered.
It is further requested that the officer executing the requested
warrant not be required to give notice of the officer’s authority or
purpose . . . .
Your affiant prays for unannounced authority anytime day or
night.
Rec., vol. I, doc. 24 at 18-19 (emphases added).
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for nighttime service, and directed the detective to write “nighttime service” on
the warrant, initial it, and indicate he was doing so on the authority of the judge.
Id. Detective Dain wrote “OR NIGHTTIME” above “daytime” on the face of the
warrant, and included the notation “PER ORDER OF JUDGE DEVER BY
TELEPHONE @ 2345 HOURS THIS PART CHANGED TO REFLECT AS THE
AFFIDAVIT.” Id., doc. 24 at 33. The judge also told Detective Dain that when
he returned with the warrant, the judge would sign the changes. The judge
subsequently did so.
II
When reviewing the denial of a motion to suppress, we view the evidence
in the light most favorable to the government, accept the district court’s findings
of fact unless clearly erroneous, and review de novo the ultimate determination of
reasonableness under the Fourth Amendment. United States v. Marquez, 337 F.3d
1203, 1207 (10th Cir. 2003).
Mr. Katoa contends the nighttime search of his home violated the Fourth
Amendment because it was unreasonable for the police to execute at night a
warrant containing an express daytime limitation. He acknowledges that the
police received telephonic instructions from the issuing judge to alter the
warrant’s language so it authorized a nighttime search as indicated in the affidavit
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supporting the warrant, but he argues this belated authorization was insufficient
to overcome the daytime limitation contained on the face of the original warrant.
Although state officials conducted the search in this case, the warrant must
comport with the Fourth Amendment’s reasonableness requirement. See United
States v. Green, 178 F.3d 1099, 1105 (10th Cir. 1999); United States v. Le, 173
F.3d 1258, 1264 (10th Cir. 1999); United States v. Callwood, 66 F.3d 1110, 1112
(10th Cir. 1995). In conducting the Fourth Amendment inquiry, we recognize that
a nighttime search is particularly intrusive. Callwood, 66 F.3d at 1112-13.
The district court here made specific findings that “Judge Dever understood
Detective Dain to be seeking a nighttime warrant, intended to issue a nighttime
warrant, and mistakenly believed he had, in fact, granted such authority.” Rec.,
vol. I, doc. 28 at 7. The court also found that when Detective Dain realized the
drafting error, he immediately called Judge Dever, who instructed him to write
“nighttime service” on the warrant, initial the change, indicate it was authorized
by the judge, and return it for signing. Id. at 3.
Mr. Katoa does not argue these findings are clearly erroneous, nor do we
have any reason to believe they are. Instead, Mr. Katoa asserts that the execution
of a warrant at nighttime which contained an express daytime limitation, where
the nighttime search was telephonically authorized during the course of the search
and the detective’s affidavit detailing the need for a nighttime search was not
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attached or incorporated by reference to the warrant, resulted in a search which
violated Mr. Katoa’s Fourth Amendment rights.
We begin by noting that there is no constitutional requirement that an
officer present a warrant prior to a search. As the Supreme Court recently
reaffirmed in Groh v. Ramirez, 124 S. Ct. 1284 (2004), the Fourth Amendment
does not necessarily require officers to serve a warrant at the outset of a search:
neither the Fourth Amendment nor Rule 41 of the Federal Rules of
Criminal Procedure requires the executing officer to serve the warrant on
the owner before commencing the search. . . . Quite obviously, in some
circumstances . . . it will be impracticable or imprudent for the officers to
show the warrant in advance.
Id. at 1292 n.5. 2 The Court gave examples of “a surreptitious search by means of
a wiretap,” and “the search of empty or abandoned premises” as situations in
which it would be impracticable or imprudent to show a warrant in advance. Id.
The rationales justifying unannounced searches in those examples apply equally
to the execution of a no-knock warrant served at night with SWAT team
assistance. Presenting the warrant prior to the search would obviate the goals
underlying the need for the SWAT team and the unannounced provision in the
2
Federal Rule of Criminal Procedure 41 is not implicated in this case
because the search warrant here was issued by a state court judge to a state
officer. See United States v. Chavez, 812 F.2d 1295, 1300 (10th Cir. 1987) (“The
government bears no burden in this case of acting in accordance with Rule 41(c)
as this investigation and search was conducted purely by state officials.”). Rule
41, by its own terms, applies only to “federal law enforcement officers.” F ED . R.
C RIM . P. 41(a)(2)(C), (b).
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warrant: maintaining the element of surprise and preventing the destruction of
evidence. See Katz v. United States, 389 U.S. 347, 355 n.16 (1967) (noting
conventional warrants ordinarily serve to notify suspects of intended search, but
“officers need not announce their purpose before conducting an otherwise
authorized search if such an announcement would provoke the escape of the
suspect or the destruction of critical evidence”); Ker v. California, 374 U.S. 23,
37-41 (1963) (holding defendant’s furtive and elusive conduct and opportunity for
quick destruction of narcotics evidence justified officers’ failure to give notice
before entering residence). It was therefore reasonable for the officers to enter
the residence before showing Mr. Katoa the search warrant.
Mr. Katoa cited several cases to support his argument that the “nighttime”
language in the affidavit cannot be read to cure the warrant’s “daytime” limitation
because the affidavit was neither attached to the warrant at the time of execution
nor incorporated by reference. See United States v. Dahlman, 13 F.3d 1391, 1395
(10th Cir. 1993) (warrant application or affidavit can cure defective warrant only
when affidavit and warrant are physically connected so they constitute one
document and warrant expressly refers to affidavit and incorporates it by
reference using suitable words of reference); United States v. Williamson, 1 F.3d
1134, 1136 (10th Cir. 1993) (same); United States v. Leary, 846 F.2d 592, 603
(10th Cir. 1988) (same) (quoting 2 W AYNE R. L A F AVE , S EARCH AND S EIZURE §
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4.6(a) (2d ed. 1987)). At oral argument, the parties addressed Groh, in which the
Supreme Court ruled, in part, that an unattached and unincorporated affidavit and
application were insufficient to cure a warrant describing the items to be seized as
“single dwelling residence . . . blue in color.” 124 S. Ct. at 1289-90. With regard
to the particularity of the warrant, the Court held that
unless the particular items described in the affidavit are also set forth in the
warrant itself (or at least incorporated by reference, and the affidavit
present at the search), there can be no written assurance that the Magistrate
actually found probable cause to search for, and to seize, every item
mentioned in the affidavit.
Id. at 1291. Because the posture of the case in Groh obliged the Court to credit
the homeowner’s account that the officer only told her he was looking for “an
explosive device in a box,” id. at 1288, the Court did not address the officer’s
alleged attempt to cure the deficient warrant by explaining orally the objects of
the search. The Court considered the officer’s description “little better than no
guidance at all.” Id. at 1293. Because the warrant “did not describe the items to
be seized at all,” it was “so obviously deficient that [the Court] must regard the
search as warrantless within the meaning of our case law.” Id. at 1290 (emphasis
in original) (citations and internal quotation marks omitted).
The Court determined the deficiencies of such a warrant could not be
salvaged despite the actual existence of probable cause, the sufficiently
particular–but unattached and unincorporated–warrant application, or the search
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taking place within the limitations intended by the judge and described by the
officer. Id. The Court’s reasoning was based in large measure on the
particularity requirement contained in the text of the Fourth Amendment:
The fact that the application adequately described the “things to be seized”
does not save the warrant from its facial invalidity. The Fourth
Amendment by its terms requires particularity in the warrant, not in the
supporting documents. See Massachusetts v. Sheppard, 468 U.S. 981, 988
n. 5 (1984) (“[A] warrant that fails to conform to the particularity
requirement of the Fourth Amendment is unconstitutional”); see also
United States v. Stefonek, 179 F.3d 1030, 1033 (7th Cir. 1999) (“[t]he
Fourth Amendment requires that the warrant particularly describe the
things to be seized, not the papers presented to the judicial officer . . .
asked to issue the warrant”).
Id. at 1289-90 (emphases in original).
We note that while the Fourth Amendment requires search warrants to
“particularly describ[e] the place to be searched, and the persons or things to be
seized,” there is no similar requirement in the amendment that a warrant indicate
the appropriate time of day for its execution. See U.S. C ONST . amend. IV.
Pursuant to caselaw, that requirement falls within the more general
“reasonableness” standard of the Fourth Amendment. See O’Rourke v. City of
Norman, 875 F.2d 1465, 1473 (10th Cir. 1989) (describing historical common law
background of nighttime search prohibition). While it is true the warrant
Detective Dain initially read to Mr. Katoa neither included a provision for
nighttime execution nor incorporated the affidavit by reference and attachment,
the district court specifically found Judge Dever made clear by telephone that he
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intended to authorize nighttime execution and instructed Detective Dain to amend
the warrant to so reflect. The judge’s clarification via telephone of “nighttime
service” removed all ambiguity from the face of the warrant, making it
unnecessary to construe the language of the affidavit in order to interpret the
warrant itself. We hold that the judge’s telephonic clarification cured any
problem and made the nighttime search reasonable. To the extent Groh can be
read to require “written assurance,” from the judge to cure a facial deficiency, see
Groh, 124 S. Ct. at 1291, that requirement was satisfied here by the issuing judge
authorizing a change over the telephone and signing that change upon the return
of the warrant.
The judge’s telephonic authorization likewise distinguishes this case from
the cases Mr. Katoa cites in which officers unconstitutionally executed daytime-
only warrants at night without such authorization from a judge. See, e.g.,
O’Rourke, 875 F.2d at 1474 (nighttime search held unreasonable under Fourth
Amendment because determining that “a warrant limited to daytime execution
authorizes the nighttime search of a home is to completely eviscerate the issuing
magistrate’s determination of reasonableness”); United States ex rel. Boyance v.
Myers, 398 F.2d 896, 899 (3d Cir. 1968) (same); United States v. Merritt, 293
F.2d 742, 746 (3d Cir. 1961) (same). In none of those cases did the officers call
the issuing judges to cure the warrants’ facial deficiencies. In the instant case,
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Judge Dever was in a perfect position to instruct Detective Dain over the
telephone that the officers had no authority to search at night if the judge had
intended to authorize only daytime execution. Likewise, had Detective Dain
simply proceeded with the search after realizing the drafting error rather than
calling the judge for authorization, Mr. Katoa would prevail. We are confident
that any future risk of officers intentionally misdrafting warrants and attempting
to salvage them with heat-of-the-moment telephone calls to sleepy judges in the
middle of the night will be ameliorated by the issuing judges’ ability to refuse
authorization of nighttime execution over the telephone.
On the facts before us, we conclude nighttime execution of the warrant was
reasonable. Our holding is narrow: when the face of a warrant contains a drafting
defect or omission regarding a subject not specifically named in the Constitution,
the warrant is made valid if the issuing judge authorizes correction of the defect
or omission via telephone during the search and subsequently confirms that
authorization in writing. Thus, when an officer supplies an affidavit in support of
a search warrant clearly indicating he seeks authorization for a nighttime search,
the judge understands authorization for a nighttime search is being requested, the
judge intends to authorize a nighttime search and believes he is doing so despite a
drafting error omitting words indicating nighttime execution, the officer discovers
the drafting error while executing the search at night and immediately receives
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telephonic authorization to execute the warrant at night, and the judge signs the
warrant upon return, nighttime execution of the warrant is reasonable. Because
there is no dispute in this case about the existence of probable cause, the
particularity requirement regarding the place to be searched, the specificity
requirement regarding the items named in the warrant, the relationship between
the contents of the affidavit and warrant, or the justification for nighttime
execution, we need not and do not address those issues.
For the foregoing reasons, we AFFIRM. Appellee’s motion to supplement
the record on appeal is denied as moot.
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