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LEGAL MEMORANDUM 02-264

TO: ALL JUSTICES OF THE PEACE

FROM: PATRICIA W. GRIFFIN CHIEF MAGISTRATE

RE: NIGHTTIME SEARCH WARRANTS

DATE: APRIL 30, 2002

________________________________________________________________________

The subject of nighttime search warrants was discussed by Chief Magistrate Barron in some detail in Legal Memorandum 80-5, “Search Warrants; A Review” (July 10, 1980) at 7-9; Legal Memorandum 80-5 (4th Supplement) (December 1, 1987). However, since that time, there has been a considerable amount of caselaw concerning such warrants, so that this is an appropriate time to review the current law regarding the issuance of nighttime search warrants.

What is a nighttime search warrant? A nighttime search warrant is a warrant that expressly authorizes a search of a residence during the nighttime. To issue such a warrant the judge should not only find the normal probable cause to issue a search warrant, the judge should also be satisfied that there is probable cause to believe that the issuance of the warrant for the nighttime is necessary in order to prevent the escape or removal of the person or thing to be searched for. The requirement for a special nighttime search warrant is contained in 11 Del.C. § 2308 that states:
A search warrant shall not authorize the person executing it to search any dwelling house in the nighttime unless the judge, justice of the peace or magistrate is satisfied that it is necessary in order to prevent the escape or removal of the person or thing to be searched for, and then the authority shall be expressly given, in the warrant. For purposes of this section the term “nighttime” shall mean the period of time between 10:00 p.m. and 6:00 a.m. Why is a special warrant required for a search during the nighttime? Nighttime search warrants are required by the Delaware Code in 11 Del.C.

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