Can You Serve a Misdemeanor Warrant at Night if it’s Not OK’d for Night Service?

From the Classroom
By Ray Hill  
Professor Emeritus, Santa Rosa Junior College  

Question: 
“Can a police officer in California legally serve a misdemeanor warrant not endorsed for night service inside a residence after 10 p.m., even if the officers entered the home legally on a radio call ” 

Perspective 1 – Robert Phillips, Deputy District Attorney (Retired), San Diego County District Attorney’s Office – Author of The Fourth Amendment and Search and Seizure - An Update, 23rd Edition: 

There is no case on point. However, I pulled the below from my 4th Amendment Outline (a document that you may access if you are a “pro subscriber” to LegalUpdates.com).  

Misdemeanor arrest warrants may be served anytime, anywhere, day or night, except when the suspect is not in public but not already in custody (e.g., in his residence). The warrant may not be served between 10 p.m. and 6 a.m. unless the warrant is “endorsed for night service,” in which case it may be served at any time. (P.C. § 840(4))  

  “Night service” must be justified in the warrant affidavit, describing the need to make the arrest in other than daytime. (See People v. Kimble (1988) 44 Cal.3rd 480, 494; discussing the “greater intrusiveness” of a nighttime search and the need for justifying nighttime service for a search warrant.)  

But, if an officer is already lawfully in the house, may a misdemeanor arrest warrant be executed despite the lack of a nighttime endorsement? This is unknown. P.C. § 840 does not provide for any such exception. But since this limitation on arrests has been held to be statutory only, and not of constitutional origins (People v. Whitted (1976) 60 Cal.App.3rd 569), no evidence would be suppressed anyway, making this question moot. 

If you want my never-to-be-so-humble opinion, such as it is, if it ever becomes the subject of an appellate court case, I would guess that executing an existing misdemeanor arrest warrant ....

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