A search warrant affidavit based on Snapchat posts that were not or cannot be dated was stale. People v. Mendoza, 2023 NY Slip Op 23291, 2023 N.Y. Misc. LEXIS 5696 (Queens Co. Aug. 27, 2023):
The Court agrees with Defendant’s argument that the information obtained in the Search Warrant application is stale and therefore must be invalidated. First, similar to in Acevedo, the two isolated dates do not establish an ongoing or continuous pattern of criminal activity, and therefore, it did not indicate a reasonable belief that that firearm was still at the premises. Second, neither the Search Warrant Affidavit nor the annexed screenshots established when the subject possessed the firearm, or if the firearm could be located at the location at that time.
Here, the Snapchat photos are not dated and make no indication of whether the photos were recently made or saved. This is problematic, because as the Search Warrant Affidavit itself explains, while a user can send a “Snap,” in real time, the sender may also save the photograph or video on their device or resend it without saving it, or can select the “infinity” icon, in which case the user’s friends will be able to view the “Snap” for an indefinite period of time. Here, neither the Affidavit, nor the annexed screenshots, indicate which one of these methods was used to transmit or view the images, so there is no way of knowing when the videos were taken. The Snapchat video referenced in the Search Warrant application could have been from months or even years before, and therefore, it failed to negate the possibility that the information furnished was stale.