SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

But see Steagald v. United States (1981) 451 U.S. 204 [68
L.Ed.2 nd 38], below, mandating a search warrant to execute
an arrest warrant in a third party’s home.
Misdemeanor arrest warrants may be served anytime, anywhere,
day or night, except that when the suspect is not in public but not
already in custody (e.g., in his residence), the warrant may not be
served between 10:00 p.m. and 6:00 a.m. unless the warrant is
“endorsed” for “night service.” (P.C. § 840(4))
“Night Service” must be justified in the warrant affidavit,
describing the need to make the arrest in other than the
daytime. (See People v. Kimble (1988) 44 Cal.3 rd 480,
494; discussing the need for justifying nighttime service for
a search warrant.)
Query: If an officer is already lawfully in the
house, may a misdemeanor arrest warrant be
executed despite the lack of a nighttime
endorsement? Unknown. P.C. § 840 itself 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.3 rd 569.), no evidence
would be suppressed anyway, making this question
moot.
Necessity of Having a Copy of The Arrest Warrant: The law
contemplates that when an arrest is made, the officer should have a
copy of the warrant in his possession. (People v. Thomas (1957)
156 Cal.App.2 nd 117, 120.) However, it has been held that there is
no violation even though he does not. (P.C. § 842; People v.
Miller (1961) 193 Cal.App.2 nd 838, 839.)
However, if requested, the arrestee shall be shown a copy
of the warrant as soon as it is practicable to do so. (P.C. §
842)
Knock and Notice: The “knock and notice” rules (see Search
Warrants, below) apply as well to the execution of an arrest
warrant, and for warrantless arrests within a residence. (P.C. §
844.)
© 2011 Robert C. Phillips. All rights reserved
The rule that evidence will not be suppressed as a result of
a knock and notice violation, as dictated by Hudson v.
161