TX1: Failure of specific time in affidavit for SW was not fatal under Gates where recency could be determined from ongoing drug operation

The failure to state time of the CI’s observations in the affidavit here were not fatal to the finding of probable cause. In its totality, it was possible to find that the probable cause was recent and it was sufficient for a finding under Illinois v. Gates. Jones v. State, 2011 Tex. App. LEXIS 820 (Tex. App.–Houston (1st Dist.) January 31, 2011):

We begin our analysis by noting that the failure to include specific dates and times of relevant events described in the affidavit in this case is not a model to be followed, something the State conceded during oral argument. The question before us, however, is whether the lack of a specific date or time is fatal in this case, or whether the totality of the affidavit nonetheless justified the magistrate’s finding of probable cause.

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“The amount of delay which will make information stale depends upon the particular facts of the case, including the nature of the criminal activity and the type of evidence sought.” United States v. Allen, 625 F.3d 830, 842 (5th Cir. 2010). Facts indicating ongoing criminal activity have long been recognized as diminishing the importance of establishing a specific and immediate time period in the affidavit: “Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.” United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972), quoted in 2 Lafave, supra, § 3.7(a), at 374; see also Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir. 1973); Bernard v. State, 807 S.W.2d 359, 365 (Tex. App.—Houston [14th Dist.] 1991, no pet.). Since Gates was decided, three state supreme courts have held that probable cause existed for issuance of a search warrant in situations in which there was a continuing drug operation and the search-warrant affidavit referred to a recent event. See State v. Walston, 236 Mont. 218, 768 P.2d 1387, 1390 (Mont. 1989) (holding that continuing criminal activity such as drug dealing coupled with confidential informant’s statement that he had “recently” heard defendant state he was growing and selling marijuana was not so stale as to negate probable cause); Commonwealth v. Jones, 542 Pa. 418, 668 A.2d 114, 118 (Pa. 1995) (affidavit’s evidence of continuing drug operation coupled with confidential informant’s statement that the informant “has just” observed contraband was not insufficient merely because affidavit did not contain a specific date); Huff v. Commonwealth, 213 Va. 710, 716, 194 S.E.2d 690 (Va. 1993) (quoting Reynolds v. State, 46 Ala. App. 77, 238 So. 2d 557, 558 (Ala. Crim. App. 1970)) (affidavit’s reference to repeated drug distribution coupled with statement that events occurred “in recent weeks” and “on a recent date” was not insufficient; “A statement in an affidavit for a search warrant that an informant had ‘recently’ seen or purchased narcotic drugs, when connected with other language that would lead to the conclusion that the unlawful condition continued to exist on those premises at the time of the application for the warrant, has been held sufficient to show the time when the alleged violation took place.”). Professor LaFave has observed that reliance upon the word “recently” can be problematic in some cases, particularly in circumstances in which “the relevant facts are nothing more than a one-time purchase or viewing of drugs, as to which only a brief period of time could pass before the information could be stale.” 2 LaFave, supra, § 3.7(b), at 396 (footnotes omitted). However, his treatise also acknowledges that when confronted with an affidavit asserting that critical events occurred “recently” or using other words to that effect, most courts have been inclined to hold that this language will suffice for a showing of probable cause. Id. at 395 & n.76. In this regard, we also note that the Court of Criminal Appeals in a pre-Gates case has held that an affidavit stating that “affiants have recently received information from a confidential informant” was a sufficient reference to time when considering the totality of the affidavit. See Sutton v. State, 419 S.W.2d 857, 861 (Tex. Crim. App. 1967).

Because the affidavit adequately suggested a continuing criminal operation, including “recently” obtained information from the first confidential informant, from the affiant’s own investigation, and from the second confidential informant who made the controlled buy—all of which supported the affiant’s belief that a violation was “currently” taking place—we hold that the temporal references within the affidavit allowed the magistrate to determine there was a substantial basis for concluding that a search would uncover evidence of wrongdoing. In so holding, we hasten to add that including specific dates and times is the preferred practice for preparing an affidavit supporting a request for a search warrant, and our opinion should not be misunderstood to countenance the use of vague terms such as “recently.” However, we are mindful that a grudging, negative attitude towards warrants would be inconsistent with the Fourth Amendment’s preference for searches conducted pursuant to warrants. See Gates, 462 U.S. at 236, 103 S. Ct. at 2331.