W.D.Ky.: Staleness is a function of the totality of the circumstances, and it is more than just the passage of time

Staleness is a function of the totality of the circumstances, and it is more than just the passage of time. United States v. Fuqua, 2014 U.S. Dist. LEXIS 169173 (W.D. Ky. December 8, 2014):

Because the probable cause analysis turns upon facts regarding a presently existing condition, the passage of time may cause once-existing probable cause to grow stale—and stale information cannot be used in a probable cause determination. See United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998) (citing W. LaFave, Search and Seizure § 3.7 (3d ed. 1996)). Although “the length of time between events listed in the affidavit and the application for the search warrant … is clearly salient, [it] is not controlling.” Id. It follows, then, that the search warrant does not yield an “‘arbitrary time limitation within which discovered facts must be presented to a magistrate.'” Id. (quoting United States v. Henson, 848 F.2d 1374, 1382 (6th Cir. 1988)). The Court’s analysis requires more than simply calculating the passage of days. Rather, the staleness inquiry hinges upon the “inherent nature of the crime.” Id. (quoting United States v. Henson, 848 F.2d 1374, 1382 (6th Cir. 1988)), and the Court considers the following factors:

(1) the character of the crime (chance encounter in the night or regenerating conspiracy?),
(2) the criminal (nomadic or entrenched?),
(3) the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), and
(4) the place to be searched (mere criminal forum of convenience or secure operational base?)

United States v. Abboud, 438 F.3d 554, 572-73 (6th Cir. 2006) (citing Spikes, 158 F.3d at 923). These variables reflect that although a significant period of time may have elapsed since a defendant’s last reported criminal activity, the Magistrate Judge may nonetheless infer that evidence of wrongdoing may remain on the premises. Spikes, 158 F.3d at 923.

Applying these factors to this case, the Court concludes that the information presented to the Magistrate Judge had not grown stale. The affidavit provided information obtained during a month-long investigation, originating with Fuqua’s Texas arrest and ceasing on approximately June 20, 2014. As stated above, this investigation included a conveyance of 37.6 grams of cocaine from Fuqua to the informant, corroborated by drug packaging materials and cocaine residue found in the apartment complex dumpster. One day later, law enforcement oversaw the delivery of $1,400 to Fuqua, who was thereafter tracked to 611 Varmint Trace. The affidavit was sworn five days later.