United States v. Kelley, 2011 U.S. App. LEXIS 18025

Kelley, living under an assumed name in Sherwood, Arkansas, was wanted in Texas for sexual assault of a child.
USMS identified him as a likely fugitive with a young Middle Eastern boy in his company and alerted local police.
Kelley was stopped, could not produce ID, and admitted being the person in the Texas photo; the boy called him a friend, not a nephew.
The police took Kelley and the boy to the station; the boy disclosed prior sexual abuse and nude photographs by Kelley allegedly stored on a computer in Kelley’s bedroom.
Sergeant Michaels sought a night-time warrant to search Kelley’s home for child pornography, asserting risk of imminent removal/destroyal of electronic evidence; the state judge issued a warrant permitting night or day execution.
Kelley was retried and convicted of rape in state court; the Nebraska Supreme Court of Arkansas reversed, prompting federal charges and a suppression motion in district court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether night-time search was reasonable under the Fourth Amendment	Kelley argues night search violated Fourth Amendment due to lack of reasonable basis.	State officers alleged imminent destruction of evidence and proper probable cause; night execution authorized by warrant.	No suppression; search reasonable under Fourth Amendment.
Whether the upward variance and consecutive sentence are substantively reasonable	Kelley argues extraordinary variance and consecutive sentence are unreasonable given age and parole prospects.	Court properly considered sentencing factors; agreed to a substantial but reasonable term.	Consecutive 240-month sentence not substantively unreasonable.

United States v. Appelquist, 145 F.3d 976 (8th Cir. 1998) (state-law violations do not render Fourth Amendment search invalid in federal prosecution)
United States v. Maholy, 1 F.3d 718 (8th Cir. 1993) (Fourth Amendment governs; state rules irrelevant in federal proceeding)
United States v. Howard, 532 F.3d 755 (8th Cir. 2008) (review of suppression findings de novo; factual findings reviewed for clear error)
Wilson v. Arkansas, 514 U.S. 927 (1995) (unannounced entry may be unreasonable; warrants generally required for home searches)
Kyllo v. United States, 533 U.S. 27 (2001) (long history of warrant requirement for home searches; warrant necessary for nighttime search when conducted at night)
United States v. Harris, 324 F.3d 602 (8th Cir.) (night-time execution permitted when warrant expressly authorizes immediate search)
United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (substantive sentencing review is narrow and deferential (en banc))
Gall v. United States, 552 U.S. 38 (2007) (reasonable within the statutory sentencing framework (reasonableness review))
United States v. Benton, 627 F.3d 1051 (8th Cir. 2010) (consecutive sentence reviewed for reasonableness under abuse-of-discretion standard)