POLICE / PROSECUTOR UPDATE - FEBRUARY 1999
Search Warrants / "Staleness"
The Court of Appeals recently issued an opinion which provides an opportunity to examine the doctrine
of staleness of probable cause in search and seizure law.
Based upon an anonymous tip, police officers searched the trash at the defendant's residence on two
occasions, February 10 and February 17. On both occasions, the officers found numerous plant stems and
miscellaneous personal papers containing the defendant's name. The plant fragments found on the 10th
were sent to the State Police Lab for testing. The test results revealed the plants were marijuana. Regarding
the stems found on the 17th, an officer testified that in his opinion they were marijuana.
On February 25
(the opinion gave no reason for the eight day delay), police sought and received a search warrant
authorizing a search of the defendant's residence for "marijuana and/or paraphernalia and/or sales records
pertaining to illegal drug activity." On February 28 the warrant was executed. The police seized live
marijuana plants, timers, lights, a CO2 tank, fertilizer, a brass pipe, marijuana seeds, and other drug
paraphernalia. The defendant sought to suppress this evidence, arguing that the eight-day period between
when police last found the marijuana fragments and when they sought the search warrant rendered their
information too stale to support a probable cause finding. The Court disagreed.
The law requires that the information given to a judge in an application for a search warrant must be
timely. Probable cause must be found to exist at the time the warrant issues. The facts to support the
warrant must be so close in time to the issuance of the warrant to justify a finding of probable cause.
However, there is no firm rule as to how much time may elapse between the obtaining of the facts upon
which the warrant is based and the issuance of the warrant.
The character of the criminal activity under investigation is a very important consideration. Where an
affidavit recites only an isolated crime, the time between the occurrence and the issuance of the warrant
will probably be crucial. For example, when dealing with a substance like drugs, our Supreme Court has
held that the purchase of drugs at a residence on one day is not probable cause that drugs will be in the
same residence eight days later. On the other hand, where the affidavit or testimony recites criminal
activity of a protracted or continuous nature, time is of less significance.
Here, the Court stated that the
quantity and size of the fragments of marijuana plants suggested "habituating and continuing use of
marijuana at the residence." It also suggested that there was ongoing marijuana cultivation at the residence.
Both activities would constitute crimes of a "protracted and continuing nature." Therefore, the judge
reasonably found probable cause to exist in this case. (The court also noted that the officers here did not
seek a search warrant only for marijuana but also for drug paraphernalia and sales records pertaining to
illegal drug activity).
The defendant also argued that even if probable cause existed when the search warrant was issued, it had
vanished when the warrant was executed three days later. However, because of the continuing marijuana
cultivation operation at the residence, the Court of Appeals held that the initial probable cause continued
to exist despite the three-day delay.
Breitweiser v. State, __ N.E.2d __ (Ind. Ct. App. 01/22/99).
This is a publication of the Clark County Prosecuting Attorney, covering
various topics of interest to law enforcement officers. It is directed
solely toward issues of evidence, criminal law and procedure. Please
consult your city, town, or county attorney for legal advice relating to
civil liability. Please direct any suggestions you may have for future
issues to Steve Stewart at 285-6264.