CA10: Staleness for a search is based on currency of information of present possession of evidence, not age of crime

Police investigating a murder for hire scheme in Tulsa developed information that defendant likely provided the van used in the murder. Sufficient probable cause developed in that case to issue the search warrant that led to the felon in possession of firearm case against him. The information was not constitutionally stale because the probable cause pointed to current possession of what the police were looking for. “The relevant question is whether the information in the search warrant affidavit suggests the items sought are currently located in the place officers seek to search.” United States v. Harris, 735 F.3d 1187 (10th Cir. 2013):

We are satisfied that [probable cause] existed in this case. As the search warrant affidavit explained, officers held in hand evidence suggesting that Mr. Johnson provided the stolen van used during the murder. The affidavit explained that officers hadn’t yet recovered the keys to that van or the murder weapon. It recounted, too, that when officers sought to tail Mr. Johnson’s car earlier in the day he drove erratically and hurriedly, apparently in an effort to shake them. Eventually, officers managed to trail Mr. Johnson to Mr. Harris’s auto shop, where Mr. Johnson parked his car, pulled out a key, entered after unlocking the door, and left a short time later on a motorcycle after locking up. Relying on experience, an attesting officer indicated that Mr. Johnson’s actions were consistent with an effort to evade officers before proceeding to the shop. Of course, these actions also showed that Mr. Johnson had access to the shop. An officer attested, too, that individuals connected to a violent crime or conspiracy are known sometimes to hide incriminating evidence at a friend’s place, or to keep it at a common “clubhouse,” rather than to retain it in their own homes, which might come under more obvious and immediate suspicion. An officer explained, as well, that Mr. Harris’s auto shop had served as a front for illegal activity before. Viewed in whole, this information is enough, we think, to cause a reasonable person to believe evidence about the murder-for-hire plot could be found at the auto shop. See, e.g., Biglow, 562 F.3d at 1279-80 (upholding search based in part on officers’ experience about where contraband is typically hidden); United States v. Sanchez, 555 F.3d 910, 913-14 (10th Cir. 2009); United States v. Sparks, 291 F.3d 683, 689-90 (10th Cir. 2002); United States v. One Hundred Forty-Nine Thousand Four Hundred Forty-Two & 43/100 Dollars ($149,442.43) in U.S. Currency, 965 F.2d 868, 873-74 (10th Cir. 1992).

True, the evidence used against Mr. Harris in this criminal case was found only incidentally, while officers were executing a search warrant aimed at the murder-for-hire conspiracy. But that by itself does not a Fourth Amendment violation make. The Fourth Amendment requires us to evaluate the reasonableness of searches and seizures based on the facts known to officers when the event in question occurred, and to avoid as best we can the temptation of offering critiques with the “20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396-97 (1989). Looking at the officers’ conduct in this case, we cannot help but think they had reason at the time to suspect the auto shop would yield evidence against Mr. Johnson, whatever the search’s ultimate outcome.

. . .

[On staleness,] Mr. Harris’s problem is this. The relevant question is not whether a close temporal proximity exists between the crime and the warrant application. The relevant question is whether the information in the search warrant affidavit suggests the items sought are currently located in the place officers seek to search. After all, police can hardly be thought constitutionally unreasonable for trying to solve “cold” cases. Instead, the Fourth Amendment faults police only when they seek to conduct a search based on information that “no longer suggests that the items sought will be found in the place to be searched.” Snow, 919 F.2d at 1459; see also United States v. Iiland, 254 F.3d 1264, 1268-69 (10th Cir. 2001).

Eventually recognizing as much, Mr. Harris says we still must rule for him because the warrant application contained “no information from which it could be inferred that … the material sought to be recovered remained” in his shop by the time of the search. United States v. Neal, 500 F.2d 305, 309 (10th Cir. 1974). As we’ve already detailed, however, the search warrant affidavit in this case contained information along just these lines. Police knew that Mr. Johnson had a connection to the van used in the murder; that the keys to the van and the murder weapon were still missing; that the auto shop had been the front for illegal activity before; that suspects in violent crimes sometimes use places like the shop to hide incriminating evidence; and that on the very same day they sought the warrant application Mr. Johnson sought to evade police before proceeding to the shop. Under these circumstances, officers possessed information suggesting a “fair probability” that evidence from the murder-for-hire conspiracy was currently being kept in the auto shop. See Grubbs, 547 U.S. at 95 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).