Post details: E.D.N.C.: Stale SW not subject to GFE

09/05/12

Permalink 08:53:09 am, by fourth, 340 words, 258 views   English (US)
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E.D.N.C.: Stale SW not subject to GFE

The complete absence of a reference to time in the affidavit for this search warrant rendered it stale, and a stale warrant is not subject to the good faith exception. United States v. Carroll, 2012 U.S. Dist. LEXIS 124728 (E.D. N.C. August 31, 2012):

As already noted, [officer] Doyle's affidavit provides no information as to when the informants actually observed the criminal activity at 405 New River Dr. Pursuant to [U.S. v.] Doyle, the court concludes that the good faith exception to the exclusionary rule therefore does not apply. The Fourth Circuit has made clear that a reasonable police officer will not rely on warrants containing no information as to when the criminal activity actually occurred at the place to be searched. Doyle, 650 F.3d at 474-75. Thus, the officers' reliance on the warrant and affidavit was not reasonable and the Leon good faith exception cannot save the officer's search.

The court notes that in cases in which an affidavit provides evidence of an ongoing criminal enterprise, evidence that otherwise would be "stale" can provide a sufficient basis for a finding of probable cause. See, e.g., United States v. Minis, 666 F.2d 134, 140 (5th Cir. 1982) (holding that four-month-old evidence was not stale because investigation involved ongoing marijuana cultivation operation); United States v. McCall, 740 F.2d 1331, 1336-37 (4th Cir. 1984) (describing multiple cases allowing longer time periods between observation of the alleged criminal activity and issuance of the warrant when police have evidence of an ongoing criminal enterprise). These cases are distinguishable: the affidavits included information regarding when the criminal activity was purportedly observed. The affidavit supporting the search of Carroll's home provided no dates on which any of the alleged criminal activity occurred. Thus, the court is unable to determine, even allowing for the wider time frame permissible when evidence of ongoing criminal activity is documented, whether the observations reported in the affidavit were sufficiently temporally proximate.

Note: Doyle is both the name of the officer and the case that the court relies on: United States v. Doyle, 650 F.3d 460, 474 (4th Cir. 2011).

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