D.Ariz.: When a SW expires before execution, a new affidavit is not required if timeliness can still be met

The first search warrant in defendant’s child pornography case expired when it wasn’t timely served, so another was sought on the same affidavit. While staleness is always a potential issue, there is no mandatory requirement that a new affidavit be presented if the information remains timely. Here it was, and defense counsel wasn’t ineffective for not raising it. Self v. United States, 2014 U.S. Dist. LEXIS 183529 (D.Ariz. October 31, 2014), adopted 2015 U.S. Dist. LEXIS 50296 (D.Ariz. April 15, 2015):

At best, Sgro held that an expired warrant may not simply be reissued without a new finding of probable cause, based upon timely affidavits.

The issue of a second warrant is essentially a new proceeding which must have adequate support …. The statute in terms requires him before issuing the warrant to take proof of probable cause. This he must do by examining on oath the complainant and his witness and requiring their affidavits or depositions. The proof supplied must have appropriate relation to the application for the new warrant and must speak as of the time of the issue of that warrant. The [USMJ] has no authority to rely on affidavits which have sole relation to a different time and have not been brought down to date or supplemented so that they can be deemed to disclose grounds existing when the new warrant is issued.

287 U.S. at 211. Thus, Sgro did not mandate new affidavits or statements, merely timely information.

Moreover, Sgro did not establish any time limit on when the affidavits have come to “have sole relation to a different time.” In Lacy, the court observed that such a determination is a fact specific inquiry. However, “[t]he mere lapse of substantial amounts of time is not controlling in a question of staleness.”

“We evaluate staleness in light of the particular facts of the case and the nature of the criminal activity and property sought.” The information offered in support of the application for a search warrant is not stale if “there is sufficient basis to believe, based on a continuing pattern or other good reasons, that the items to be seized are still on the premises.”

Lacy, 119 F.3d at 745-46 (internal citations omitted). Of course, in this case, the question whether the information was stale has been decided by the Ninth Circuit on Movant’s direct appeal.