M.D.La.: Analyzing staleness with things of no enduring value

This is a stark issue of four year old staleness with things of no enduring value (unlike firearms or child porn) that I’ve never seen before that well demonstrates the issue. Few cases have this obvious a fact pattern, but it’s a good example to show how it works:

Defendant was a juvenile four years ago, and he was ratted out as a suspect in a car burglary. Having nothing else on him, the police obtain a search warrant for his house for the evidence of the theft, and the district court finds it stale. The question is: since this is “years,” what would logically be kept that long? None of this stuff. [The only surprising thing about this case is that the government indicted in the face of these facts.] United States v. Davis, 2013 U.S. Dist. LEXIS 86292 (M.D. La. June 19, 2013) (emphasis the court’s):

Second, the Court is not persuaded that certain other items listed in the warrant could reasonably be expected to be kept at Defendant’s residence for the amount of time that elapsed between the burglary and the search. The Court finds that there was an extremely low likelihood that any items of the 2008 burglary would likely be found with D. W. at 3044 Elgin Street in Baton Rouge nearly four years later.

The Court further finds the government’s assumption that D.W. would have held on to the items simply because he was a juvenile is unpersuasive. The government asserts that because D.W. was a minor residing with his mother, it was reasonable to conclude that the “Gucci” purse and the MP3 player were not disposed of. The government points out that a relatively young minor would be more likely to keep the music player and that D.W.’s mother, who also resided with him, could have kept the purse. This assumption is not one that the Court is willing to accept in its analysis, and the government has failed to point to any facts or case law to support its contention.

The threshold issue is whether such items would likely be kept for a period of years, such that a person of reasonable caution could reasonably expect that the items would have been found at Defendant’s residence. The Court finds that the items specified in the warrant, other than D.W., could not reasonably have remained in a suspect’s residence for a period of approximately four years after the auto burglary. The Court concludes that probable cause did not exist with regard to the other items specified in the warrant for the following reasons.

As a preliminary issue, neither party cites to any case law showing that these particular items are likely or are unlikely to be maintained for long periods of time at one’s residence after a crime. While cases were not cited in the parties’ briefs, the U.S. v. Freeman [, 685 F.2d 942, 952 (5th Cir. 1982)] case was offered at the evidentiary hearing of this matter. As noted at the hearing, circuit courts have analyzed whether specific items associated with criminal activity are likely to be maintained for longer periods.

For example, in U.S. v. Freeman, the Fifth Circuit held that passports, identification papers, and bank records are the sort of items which would normally be kept at one’s personal residence. 685 F.2d 942, 952 (5th Cir. 1982). The court also concluded that they are the sort of items which could be reasonably expected to be kept there for a long period of time. Id.

In this case, an identification document was one of the items specified in the search warrant. However, as Defendant argued at the evidentiary hearing, nothing suggests that the document sought in this case is of the kind described in Freeman. In Freeman, the court found that probable cause existed to support a search for the passports, personal identification, and bank records after many months, largely because the Defendant was a person with many aliases. Id. at 949. This factor is not present in this case, and the Court further notes that this case involves a period of years and not months.

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