The four standards of staleness in the Sixth Circuit are:
(1) “the character of the crime (chance encounter in the night or regenerating conspiracy?)”;
(2) “the criminal (nomadic or entrenched?)”;
(3) “the thing to be seized (perishable and easily transferable or of enduring utility to its holder?)”;
(4) “the place to be searched (mere criminal forum of convenience or secure operational base?).”
[United States v. Abboud, 438 F.3d 554, 572 (6th Cir. 2006)] (quoting, Andresen v. State, 331 A.2d 78, 106 (Md. Ct. Spec. App. 1975). United States v. Hatcher, 2006 U.S. Dist. LEXIS 95196 (E.D. Tenn. April 12, 2006). Thus:
The Sixth Circuit has found that business records are a type of evidence that defy claims of staleness. [citations omitted]
In Martinez, the Court held that the search warrant was valid because it sought information regarding business and financial records, and such records are typically found in either a residence or place of business. Martinez, 1997 WL 26461 at *2. The Court found that it was reasonable for the magistrate judge to infer that evidence of drug trafficking and money laundering would be found in Martinez’s apartment and place of business because two sources had indicated that the defendant used his business as a money laundering operation for his drug profits. Id. Furthermore, there was evidence from several sources that the defendant engaged in illegal activities in his apartment. Id.
Similar to Martinez, the search warrants in this case sought evidence of drug trafficking and money laundering, predominantly in the form of business and financial records [Doc. 69 and Ex. 1-2]. Additionally, the Court finds that the affidavits in this case, like Martinez, present substantial corroborating information that the defendants engaged in marijuana trafficking at their residences. The Court also finds that the affidavits provide information regarding TFO Jerry’s experience and training in investigating drug traffickers and his professional opinion that drug traffickers keep and maintain records of their drug-related activities at their residences, as well as assets purchased with drug proceeds. Accordingly, the Court finds that the magistrate judge was correct in believing that certain documents and assets regarding the defendants’ drug trafficking and money laundering activities would be found at the defendants’ residences. See Jones, 159 F.3d at 975 (“[i]n the case of drug dealers, evidence is likely to be found where the dealers live”).
The affidavits at issue in this case requested the search of the defendants’ residences. The Court finds, as stated in the affidavits, that the marijuana trafficking and money laundering alleged centered around the defendants’ illegal transactions conducted at their residences, specifically located at 2047 Jericho Road and 4323 Horace Taylor Road in Maryville, Tennessee. As noted above, the affiant opined that drug traffickers keep and maintain certain records of their drug-related activities and assets derived from the sale of drugs at their residences. Thus, the Court finds that the defendants’ residences were not “mere criminal forum[s] of convenience,” but rather, they were at the heart of the criminal charge or, in other words, were a “secure operational base” where ongoing criminal activity occurred over a span of at least three (3) to four (4) years.
Accordingly, the Court finds that all factors weigh against a claim of staleness. The Court is especially persuaded by the fact that business and financial records are typically found at either a residence or place of business, and that records of drug trafficking are no exception. Therefore, having found (1) that the defendants were engaged in ongoing criminal activity between 1998 and 2002, (2) that they were entrenched, (3) that the search warrants sought records and assets regarding the defendants’ drug trafficking and money laundering activities, and (4) the places to be searched were secure operational bases, the Court finds that the warrants were not stale.
As to cash, however, the warrant was stale because the time limits within the affidavit showed that the cash would be gone.
Search of a vessel under a 2003 agreement between the U.S. and the country of the ship justified the search for drugs. United States v. McClymont, 216 Fed. Appx. 968 (11th Cir. 2007)* (unpublished).
With probable cause, an officer can search a vehicle and containers found in it, including an oxygen tank. United States v. Malloy, 217 Fed. Appx. 342 (5th Cir. 2007)* (unpublished).
Defendant’s objection to R&R was based on the finding as to his nervousness, which he kept belittling, but it was a fact found against him, and nervousness is a factor in reasonable suspicion. United States v. Zachary, 2007 U.S. Dist. LEXIS 9238 (E.D. Tenn. February 6, 2007).*
