E.D.Cal.: SW for records was not stale because they were likely to be kept

A two year lapse between two search warrants for documents being issued did not make it stale. There was reason to believe the records would still be around. United States v. Quy Le, 2011 U.S. Dist. LEXIS 2243 (E.D. Cal. January 4, 2011):

While the year-long period between the search of the 1640 High Street residence and the search at issue here is significant, it does not destroy probable cause. There is no reason to think that the kind of documentary evidence sought here would have been destroyed in that time period. See United States v. Greany, 929 F.2d 523, 525 (9th Cir. 1991) (“One may properly infer that equipment acquired to accomplish the crime and records of the criminal activity will be kept for some period of time. When the evidence sought is of an ongoing criminal business of a necessarily long-term nature, such as marijuana growing, rather than that of a completed act, greater lapses of time are permitted if the evidence in the affidavit shows the probable existence of the activity at an earlier time.”) (internal citations omitted). Based on the information in the affidavit, this court concludes there was probable cause for the issuance of the warrant.

Virginia v. Moore does not apply to mistakes of law. In Moore, there was no dispute that a violation occurred. Here, the officers stopped suspected MS-13 gang members for a MPC 25 violation (loitering in violation of city code on private property). MPC 25 violations can’t occur on public property, so the stop was invalid. Moreover, there was no justification given for a Terry frisk other than the fact that MS-13 gang members have been known to be violent in the past and the officer did not want to be the first injured by them. United States v. Hernandez, 2011 U.S. Dist. LEXIS 2449 (N.D. Ill. January 6, 2011).