D.D.C.: Staleness for a wiretap follows the same general rule as staleness for search warrants except it’s to find evidence of conspiracy

Staleness for a wiretap follows the same general rule as staleness for search warrants except that the question is probable cause to believe that the content of telephone calls will help prove the conspiracy. United States v. Ford, 2016 U.S. Dist. LEXIS 55510 (D.D.C. April 26, 2016):

b. Staleness

Defendants’ staleness challenge to the probable cause for the first wiretap also lacks merit. “Because probable cause must exist at the time that law enforcement applies for a warrant, the freshness of the supporting evidence is critical.” United States v. Washington, 775 F.3d 405, 408, 413 U.S. App. D.C. 364 (D.C. Cir. 2014). “The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc.” United States v. Matthews, 753 F.3d 1321, 1325, 410 U.S. App. D.C. 154 (D.C. Cir. 2014) (quoting United States v. Bruner, 657 F.2d 1278, 1298, 212 U.S. App. D.C. 36 (D.C. Cir. 1981) (quotation marks and citation omitted)). “Courts have sometimes been more ‘lenient’ in evaluating the freshness of evidence in extended conspiracies than for single-incident crimes.” United States v. Washington, 775 F.3d at 408 (quoting United States v. Webb, 255 F.3d 890, 905, 347 U.S. App. D.C. 162 (D.C. Cir. 2001)).

The way in which freshness of information is analyzed in the unique context of wiretap orders is somewhat different because the question is not probable cause to believe that drugs, guns, or other contraband is still located at a particular place, but probable cause to believe that the content of telephone calls will yield evidence of criminal activity. Decisions in drug conspiracy cases nationwide assessing whether information in a wiretap affidavit has gone stale typically focus on whether the affidavit as a whole demonstrates that the owner of the target phone is engaged in ongoing drug trafficking. See, e.g., United States v. liland, 254 F.3d 1264, 1269 (10th Cir. 2001) (finding probable cause for wiretap based on three-month-old evidence where “the affidavit also contains facts demonstrating that the alleged drug trafficking activity was ongoing”); United States v. Diaz, 176 F.3d 52, 109-10 (2d Cir. 1999) (finding probable cause for wiretap because, “to the extent that there are acts of past criminal activity that in and of themselves might be stale, such acts can be sufficient if an affidavit also establishes a pattern of continuing criminal activity so there is reason to believe that the cited activity was probably not a one-time occurrence”) (internal quotation marks omitted); United States v. Tallman, 952 F.2d 164, 166 (8th Cir. 1991) (“Notwithstanding this [four month] delay, [] we conclude that the ongoing nature of the conspiracy was sufficiently established by the affidavit to support the finding that probable cause existed for the issuance of the wiretap authorization.”); United States v. Rowell, 903 F.2d 899, 903 (2d Cir. 1990) (“Given the continuous nature of narcotics conspiracies …, the approximately 18-month delay between procuring the informants’ statements and seeking the wiretap warrant did not render the information stale.”).