(1) Does probable cause to search an apartment go stale when a peace officer waits to get a warrant a few days after the officer has a confidential informant (CI) buy drugs? (2) Is a search warrant invalid if it’s not executed until several days after a magistrate issues it?
(1) No, not if the facts and circumstances of the case show that, when the warrant is issued, there is still a fair probability that drugs and other incriminating evidence are located at the place to be searched. (2) Yes, so long as the reason for the delay is reasonable and no circumstances have changed between the time the warrant was issued and its later execution.
Police officers used a CI to purchase crack cocaine from defendant Robert Archibald while they surveilled Archibald’s apartment. Three days later, one of the officers received a search warrant for the apartment, but officers did not execute it until five days later. Archibald and others were in the apartment when officers arrived. They discovered crack cocaine on one person and a large amount of cash on Archibald. Police also found a loaded pistol and a large piece of crack cocaine in the kitchen. A canine search of Archibald’s car revealed $12,000 in cash. Archibald moved to have all the evidence suppressed, arguing that any probable cause for the warrant had gone stale and that the officers invalidly executed the warrant by waiting five days.
Why this case is important:
The Sixth Circuit first held that probable cause for the warrant had not gone stale even though police waited three days after the controlled buy before getting a warrant. The CI’s initial buy established probable cause for the warrant, and when looking at the totality of the circumstances, waiting three days before getting a search warrant did not make the probable cause become stale. Courts will consider several factors in determining “staleness,” including (1) the character of the crime; (2) the criminal; (3) the thing to be seized; and (4) the place to be searched. Here, police were searching for evidence of drug crimes, so it is reasonable to believe that drugs, related paraphernalia, or money would still be located in an alleged drug house three days after the CI’s controlled buy.
Second, the court found that the officers’ five-day delay in executing the search warrant was reasonable. Even if officers delay in executing a search warrant, as long as the execution falls within the time frame allowed by law and no circumstances have changed, probable cause will still exist. Here, Tennessee’s criminal procedure rules allowed for police to execute a warrant within five days of its issuance. Plus, the warrant was issued before Memorial Day weekend, when many officers had scheduling conflicts.
Keep in mind:
When you’ve established probable cause to get a search warrant, it’s always best practice to submit your warrant affidavit as soon as possible. However, if there is a delay, a court still may find probable cause depending on the crime and what you’re trying to obtain. In the case of drug trafficking and economic crimes, for instance, probable cause would continue to exist for days after you’ve first established it.
Further, in Ohio (Criminal R ule 41), a search warrant generally must be executed within 72 hours of being issued. So, when obtaining and executing search warrants, any passage of time beyond 72 hours must be reasonable. And reasonableness, of course, depends on the facts and circumstances of each case. To avoid this problem, include in your warrant affidavit any known reason why you would need more time to execute the warrant.
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