NE: 14 month delay in getting SW for DNA wasn’t stale because DNA still likely to be found

A 14 month delay in getting a search warrant for DNA evidence in defendant’s house was not stale. DNA evidence doesn’t quickly degrade indoors, and it was still likely to be found. State v. Lantz, 21 Neb. App. 679, 842 N.W.2d 216 (2014):

Lantz’ first argument regarding probable cause in issuing the search warrant is that the information in the affidavit to support the warrant was stale based upon the approximate 14-month time period between his January 11, 2011, arrest and the execution of the search warrant on March 29, 2012.

. . .

Unlike the aforementioned cases, which concerned drug activities, in the instant case, we are dealing with an affidavit seeking biological or DNA evidence. By its nature, such evidence is of a type that may be found years after its deposit. See People v. Miller, 75 P.3d 1108, 1113 n.3 (Colo. 2003) (“[t]he type of evidence and activity involved is important[; s]ome types of evidence the police seek to obtain through a search warrant may be relatively immune from becoming stale, for example, DNA evidence at the specified location”). Although Nebraska appellate courts have not considered the issue of the staleness of information contained in the affidavit for a search warrant seeking DNA or other biological evidence, the question has been addressed by other state courts. For example, in State v. Daniels, 234 Or. App. 533, 228 P.3d 695 (2010), the Oregon Court of Appeals held that facts contained in an affidavit which included the defendant’s alleged sexual abuse of adopted and biological daughters over 20 years prior and a statement by a male foster child who, for a period of time ending 9 months prior to the warrant application, had regularly witnessed the defendant sexually abusing the child’s 13-year-old sister by rubbing her crotch and vaginal area were sufficient to justify a search warrant for photographs and videotapes. The Oregon Court of Appeals noted that evidence of inculpatory sexual activity, such as fluids on bedding or undergarments, “unlike drugs, is not consumable or marketable, nor is it likely to dissipate (DNA, for example, lasts for millennia); therefore, it is not necessarily ‘stale’ after a short time.” Id. at 539, 228 P.3d at 699. Likewise, in State v. Lejeune, 277 Ga. 749, 594 S.E.2d 637 (2004), the Georgia Supreme Court held that facts contained in an affidavit justifying a warrant to search a home for a vise and for blood evidence were not stale where an alleged murder occurred more than 5 years prior and where the affidavit stated that there was a reasonable belief that the blood evidence would still be found because blood does not degrade when protected from the elements.