TX: “Recently” in affidavit was sufficient to overcome staleness when coupled with ongoing drug operation

The affidavit twice used “recently” to describe when the officer learned of information from the CI. Coupled with a showing that this was an ongoing drug operation, that was enough to overcome staleness. Jones v. State, 364 S.W.3d 854 (Tex. Crim. App. 2012):

We have suggested that time is a less important consideration when an affidavit recites observations that are consistent with ongoing drug activity at a defendant’s residence.33 We quoted from United States v. Johnson, in which the Tenth Circuit explained: “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.”34 Other federal circuits have held that the nature of the activity must be considered, and that, in appropriate circumstances, years could pass without information becoming stale.35 In United States v. Greene, the Sixth Circuit explained that “[e]vidence of ongoing criminal activity will generally defeat a claim of staleness.”36 And, according to that court, “where the criminal activity occurred in a ‘secure operational base,’ the passage of time becomes less significant.”37

Greene was a case in which drugs were being sold out of a residence.38 Narcotics had been purchased at the residence at least twelve times, but the last reported time was twenty-three months before a warrant was sought.39 The Sixth Circuit found that the information was not stale.40 The Sixth Circuit has subsequently suggested that information about narcotics tends to go stale quickly but only “in the absence of information indicating an ongoing and continuing narcotics operation.”41