Stale for Purposes of Search Warrant Affidavit

by Charles Gillingham

For probable cause to exist in an affidavit for probable cause, officers must establish that the evidence they are seeking is located at the place they wish to search and that there is a fair probability or substantial chance that it is still there. For the most part, it is sufficient that the affidavit contains recent or fresh information. In other words, that information of the acts, conditions or events happened so recently that the items would likely still be at the place to be searched. What happens when there is a delay between the information that supports probable cause and the drafting of an affidavit?

In U.S. v. Seiver, 692 F.3d 774 (2012), the warrant affidavit said that law enforcement authorities discovered that a pornographic video which a 13-year-girl had made of herself and uploaded to the Internet had been downloaded to a computer at the defendant's home and that 16 still images from that video - three of which were pornographic images of the girl - had been uploaded from that computer to an image-sharing website. A Facebook message with a link to that website had been sent to the girl's stepmother from the same computer. She alerted the authorities, who identified the computer's Internet Protocol address from the website. The address was registered to the defendant.

Seiver argued that there was no reason to believe that seven months after he had uploaded child pornography there would still be evidence of the crime on his computer. Actually a search of his computer was likely to find quite a bit of evidence. Even if he had deleted the child pornography, a successful recovery of the images from his hard drive by an FBI computer forensic expert would establish that he had possessed them at one time, well within the five-year statute of limitations.

Courts are clear that if an officer could opine that the suspect was a collector of child pornography (CP), it is unlikely they would ever get rid of their CP. As a result, suspects would always have images on their computers. See, also, United States v. Pappas, 592 F.3d 799, 803-04 (7th Cir.2010); United States v. Prideaux-Wentz, 543 F.3d 954, 958-59 (7th Cir.2008); United States v. Estey,595 F.3d 836, 839-40 (8th Cir.2010); United States v. Lemon, 590 F.3d 612, 614-16 (8th Cir.2010); United States v. Potts, 586 F.3d 823, 830 (10th Cir.2009); United States v. Paull, 551 F.3d 516, 522-23 (6th Cir.2009); United States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir.2008); United States v. Perrine, 518 F.3d 1196, 1205-06 (10th Cir.2008); United States v. Irving, 452 F.3d 110, 125 (2d Cir.2006)

Other decisions have applied "staleness" to other perishable or consumable objects, like cocaine, marijuana and other evanescent evidence. U.S. v. Morales-Aldahondo (1st Cir. 2008) 524 F.3d 115.

A recent case dealt with a Facebook account. In U.S. v. Flores (9th Cir. 2015) 802 F.3d 1028, the suspect was caught bringing narcotics over the border. On jail calls the suspect asked a relative to delete her Facebook account. Officers used the four-month-old phone calls to establish probable cause for a warrant to acquire her Facebook postings. Officers received approximately 11,000 pages. They sealed approximately 10,900 pages as only approximately 100 were evidence of drug trafficking. The defendant moved to suppress the evidence. The court held that time is only one factor when deciding whether an item will still be at the location to be searched. The nature of the evidence is also a factor. As stated in Seiver, an item may remain in one place for months, even years. While narcotics may be gone within an hour. The fact that the suspect instructed her relative to delete the evidence is not dispositive. The question was whether it would be reasonable to believe those items were likely to be there.

Remember, probable cause is far short of certainty - it "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity," Illinois v. Gates, 462 U.S. 213, 244 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and not a probability that exceeds 50 percent ("more likely than not"), either. Hanson v. Dane County, 608 F.3d 335, 338 (7th Cir.2010). Insure that you as an officer address any potential "staleness" issues.