CA9: Continuing pattern of acts made SW affidavit not stale

Defendant was indicted for use of a chemical weapon. His continuing pattern of vandalism of homes of his former customers made the information in the affidavit for the search warrant not stale. A search warrant for his computer was also sustained. United States v. Fries, 2015 U.S. App. LEXIS 5072 (9th Cir. March 30, 2015):

We conclude that Fries’ “continuing pattern” of vandalizing the homes of former customers militates against a finding that the information supporting probable cause was impermissibly stale. Id. Agent Nowak’s affidavit delineated in great detail the similarities among the three incidents of vandalism in 2008, 2009, and 2011. Notably, the alleged modus operandi for each of the incidents was nearly identical. In particular, each incident involved the use of motor oil, animal carcasses, and other substances to vandalize the former customers’ residences, as well as attempts to divert blame to uninvolved individuals. Although Fries attempts to distinguish the 2011 incident as an act of vandalism rather than a federal crime involving the use of chemicals, a pattern of conduct is readily discerned from consideration of the related incidents. This continuing pattern of criminal conduct, as well as the evidence of Fries’ stockpiling of items for future acts of retribution, supports an inference that Fries continued to possess items related to ongoing criminal conduct. See United States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007) (“One may infer that equipment acquired to accomplish a crime will be kept for some period of time. …”) (citation omitted). The search warrant was issued approximately two weeks after the April 28, 2011, incident, thus further undermining Fries’ staleness argument. See United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997) (underscoring the relationship between the timing of the relevant conduct and issuance of the warrant).

Fries’ argument that the search warrant was impermissibly overbroad in permitting a search of Fries’ computers and business records is similarly unpersuasive. “The Fourth Amendment requires that a warrant particularly describe both the place to be searched and the person or things to be seized.” United States v. Smith, 424 F.3d 992, 1004 (9th Cir. 2005) (citation and emphasis omitted). “The description must be specific enough to enable the person conducting the search reasonably to identify the things authorized to be seized. The purpose of the breadth requirement is to limit the scope of the warrant by the probable cause on which the warrant is based. …” Id. (citations, alteration, and internal quotation marks omitted).

In this case, the search warrant sufficiently circumscribed the agents’ discretion with respect to Fries’ computers and records. The search warrant affidavit sufficiently explained that seizure of Fries’ computers was required because of the difficulty in analyzing the computers on-site and the potential for alteration or destruction of the computers’ components. According to Agent Nowak, a confidential source revealed that Fries had “a laptop that he carries with him at all times and uses frequently” and that Fries “has a computer at his home that he uses very frequently …” Additionally, Agent Nowak delineated in great detail that Fries’ alleged criminal conduct and the corresponding probable cause stemmed from Fries’ harassment of former business customers. See United States v. Banks, 556 F.3d 967, 973 (9th Cir. 2009) (upholding a search under similar circumstances). As a result, the search warrant was not impermissibly overbroad. See Kahre, 737 F.3d at 567 (holding that “[t]he search warrant affidavits furnished probable cause to search for the enumerated items”).