How have courts dealt with the issue of stale or stale information in a search warrant application?

MultiRegion, United States of America

The following excerpt is from U.S. v. Irving, 452 F.3d 110 (2nd Cir. 2005):

suppress evidence seized from a search of his home, and specifically his home computer. He contended the warrant permitting the search was based on stale information and not executed in good faith. We review de novo the determination that there was probable cause to issue the warrant and that, regardless, the officers executing the warrant were entitled to the good faith defense. United States v. Smith, 9 F.3d 1007, 1011 (2d Cir.1993).

To be valid under the Fourth Amendment a search warrant must be supported by probable cause. When making the probable cause determination, a magistrate judge must make a common sense account of all the circumstances, Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and in doing so determine whether the information in the application is current or has become stale. See Rivera v. United States, 928 F.2d 592, 602 (2d Cir.1991). The age of the supporting facts and the nature of the unlawful conduct is helpful in determining whether the information is stale, as is whether the supporting affidavit depicts continuing conduct or isolated and random instances of illegal conduct. See id.; United States v. Martino, 664 F.2d 860, 867 (2d Cir.1981). When a defendant is suspected of possessing child pornography, the staleness determination is unique because it is well known that "images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes." United States v. Lamb, 945 F.Supp. 441, 460 (N.D.N.Y.1996) (citing cases).

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