Law Enforcement Bulletin 

Question: How long can officers rely on facts contributing to probable cause? In other words, when does probable cause become outdated or stale?

Quick Answer: Staleness is measured by the circumstances of the case, not by the passage of time alone.

Facts: DEA agents were investigating Brown’s role in a drug trafficking network. After a series of controlled buys, several suspects, including Brown, were arrested. Brown provided a residential address that agents sought to search 22 days after his arrest. When applying for the search warrant, agents cited Brown’s participation in the attempted delivery of heroin (for which he was arrested 22 days prior), Browns felony drug trafficking history, his residential address, and a positive drug dog alert on the car registered to Brown’s address as a basis for probable cause. Agents averred that there was probable cause that Brown’s house contained drugs, ledgers, drug packaging, money, certain cell phones, etc. Agents executed the search warrant and recovered items of evidentiary value. Brown sought to suppress the evidence arguing the information known to agents became stale in the 22 days between his arrest and the application for the warrant. The court disagreed and noted the crime being investigated suggested an ongoing drug trafficking conspiracy, of which Brown was a member. Also, Brown appeared to be entrenched in a secure operation at his residence. Finally, agents sought to recover records and documents likely to be retained for long periods of time.  The court reminded that staleness is case specific and not tied to time alone.

Keep in Mind: Courts will examine several variables when considering “staleness,” including the character of the crime (chance encounter or regenerating conspiracy?), the criminal himself (nomadic or entrenched?), the thing to be seized (perishable/easily transferable or enduring utility to the holder?), and the place to be searched (forum of convenience or secured operational base?).