This decision was later affirmed in Willhauk v. Halpin, 953 F.2d 689 (1st Cir. 1991), but the First Circuit did not directly address the issue of a night-time entry and deferred to the district court. Similarly, in United States v. Giwa, 617 F. Supp. 2d 1086 (D. Nev. 2007), the District of Nevada noted that the nighttime execution of an arrest warrant is not limited by the language of FED. R. CRIM. P. 41(e), which requires a search warrant to expressly authorize nighttime searches.

Id. at 602-03. Similarly, in United States v. Giwa, 617 F. Supp. 2d 1086 (D. Nev. May 29, 2007), a district court held that an arrest warrant based on a petition for revocation of supervised release issued and signed by a deputy clerk was valid, noting that the practice was "consistent with the long-standing practice in [the] district," and "correspond[ed] to the procedure prescribed by Rule 9 . . . ." Id. at 1091.

Id. at 602–03. Similarly, in United States v. Giwa, 617 F.Supp.2d 1086 (D.Nev.2007), a district court held that an arrest warrant based on a petition for revocation of supervised release issued and signed by a deputy clerk was valid, noting that the practice was “consistent with the long-standing practice in [the] district,” and “correspond[ed] to the procedure prescribed by Rule 9....” Id. at 1091.

Accordingly, Rule 41's daytime execution requirement did not apply to Skyfield's arrest warrant.See United States v. Willson, 2017 WL 1133419, at *6 (W.D.N.Y. Feb. 27, 2017) (“Rule 41 applies to search and seizure warrants, not arrest warrants. Thus, the execution of an arrest warrant is not subject to the Rule's ‘daytime' or ‘after 6:00 a.m.' requirement.”), report and recommendation adopted, 2017 WL 1136988 (W.D.N.Y. Mar. 24, 2017); United States v. Giwa, 617 F.Supp.2d 1086, 1096 n.4 (D. Nev. 2007).

Even if the allegation were correct, however, Villa does not make out a substantial claim for suppression. Courts have held that an arrest warrant may be valid where it is signed by a clerk, see, e.g., United States v. Hondras, 296 F.3d 601, 602-03 (7th Cir. 2002); United States v. Giwa, 617 F. Supp. 2d 1086, 1091 (D. Nev. 2007), and even when it is issued by a clerk, Shadwick v. City of Tampa, 407 U.S. 345, 350-51 (1972). Federal Rule of Criminal Procedure 41(e)(1) states that "[t]he magistrate judge or a judge of a state court of record must issue the warrant," but "[i]ssuing a warrant is not synonymous with signing a warrant."

Even if the allegation were correct, however, Villa does not make out a substantial claim for suppression. Courts have held that an arrest warrant may be valid where it is signed by a clerk, see, e.g., United States v. Hondras, 296 F.3d 601, 602–03 (7th Cir. 2002) ; United States v. Giwa, 617 F. Supp. 2d 1086, 1091 (D. Nev. 2007), and even when it is issued by a clerk, Shadwick v. City of Tampa, 407 U.S. 345, 350–51, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). Federal Rule of Criminal Procedure 41(e)(1) states that "[t]he magistrate judge or a judge of a state court of record must issue the warrant," but "[i]ssuing a warrant is not synonymous with signing a warrant."

requirement. See United States v. Giwa, 617 F. Supp. 2d 1086, 1096 n.4 (D. Nev. 2007) ("[Defendant] also complains that the nighttime execution of the arrest warrant violated Fed. R. Crim. P. 41(e), which requires that a warrant command the officer to execute the warrant during the daytime unless the issuing judge expressly authorizes execution at another time. The complaint is misplaced. Rule 41 deals with search warrants, not arrest warrants. It makes little sense to place such a limitation on the time of day when an arrest warrant may be executed.").

The issuance of an arrest warrant by the clerk is a ministerial act. See Bryan v. Congdon, 86 F. 221, 224 (8th Cir.1898) (noting with regards to an arrest warrant that the clerk performs a perfunctory act whereas the judge has discretion to control the actual proceedings); see also United States v. Giwa, 617 F.Supp.2d 1086, 1091 (D.Nev.2007) (longstanding procedure in which judge enters order and clerk issues and signs arrest warrant is constitutional). Different courts have different procedures to request such acts.