D. Mass: Primer on staleness

The police showed nexus to the defendant’s property for this search warrant, and the court gives a primer on staleness. United States v. Towne, 705 F. Supp. 2d 125 (D. Mass. 2010)*:

Police are not required to seek a warrant the moment they have information sufficient to establish probable cause, but stale information cannot be considered in the probable cause analysis. Sgro v. United States, 287 U.S. 206, 210-211, 53 S. Ct. 138, 77 L. Ed. 260 (1932). Whether or not information is stale depends on the nature of the property to be seized, the nature of the alleged crime, and the nature of the premises to be searched. Andresen v. State, 24 Md. App. 128, 331 A.2d 78, 105 (Md. Ct. Spec. App. 1975), aff’d, Andresen v. Maryland, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). “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.” Id., 331 A.2d at 106. Burglar’s tools, for example, might reasonably remain in the hands of a professional thief for ten months. Commonwealth v. Scanlan, 9 Mass. App. Ct. 173, 180-181, 400 N.E.2d 1265 (1980). Pedophiles typically hide child pornography in the secrecy of their homes and rarely discard the images, hence a pornography collection might reasonably remain in the possession of a pedophile for an indefinite period of time. See United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997) (ten months); People v. Russo, 439 Mich. 584, 487 N.W.2d 698, 707-711 (Mich. 1992) (six and one-half years); Commonwealth v. Kenney, 449 Mass. 840, 846, 874 N.E.2d 1089 (2007) (“Perhaps a lifetime.”). Collectors of illegal firearms also carefully preserve their weapons. See United States v. Batchelder, 824 F.2d 563, 564 (7th Cir. 1987) (illegal silencers properly seized on nine-month-old information). See also State v. Bova, 240 Conn. 210, 690 A.2d 1370, 1384 (Conn. 1997) (items that are not facially incriminating are more likely to remain undisturbed on a premises than are items that are obviously inculpatory).

The police had a search warrant for the upstairs apartment. Once they entered, they realized that there were two apartments, and, like Garrison, they exited and went to the door of the right place. This entry was reasonable and with exigent circumstances, and what happened here was not a deliberate “manufactured” exigency. United States v. Rios, 2010 U.S. Dist. LEXIS 37600 (E.D. Wis. April 15, 2010), USMJ’s R&S 2010 U.S. Dist. LEXIS 37544 (E.D. Wis. February 12, 2010).*