Staleness is not a separate concept – it is simply an extension of the probable cause concept. At some point, information becomes so old that there is no longer a fair probability the evidence will be found at the location. There are no hard and fast rules for staleness (i.e., the urban legends of the 72 hour, or even 48 hour rule). In fact, the staleness depends on the type of evidence sought. For instance, documents and firearms are more likely to be a location compared to something like a consumable product (drugs or alcohol). As another example, it will take much longer for information to become stale when dealing with ongoing criminal activity as compared to a single illegal event. The lesson is this – staleness depends on the facts, circumstances, and very likely the officer’s training and experience.
Legal Supplement
Ongoing Drug Activity: U.S. v. Schaefer, 87 F.3d 562 (1st Cir. 1996)(Information 2 years old was not stale when involving a suspect who was a “major player” in cartel activity and affidavit sought property which would likely be in service for years), U.S. v. Hammond, 351 F.3d 765 (6th Cir. 2003)(50 months information not stale in drug trafficking involving a secure operational base), U.S. v. Iiland, 254 F.3d 1264(10th Cir. 2001)(4 months not stale for drug trafficking ongoing for a considerable time).
Marijuana Cultivation: U.S. v. Greany, 929 F.2d 523 (9th Cir. 1991)(1.2 to 2 years not stale involving information that informant had remodeled the suspect’s house for a marijuana grow), U.S. v. Meyers, 106 F.3d 936 (10th Cir. 1997)(5 month gap not stale in ongoing marijuana growing operation), U.S. v. McKeever, 5 F.3d 863 (5th Cir. 1993)(21 months not stale on indoor marijuana grow – Note: This affidavit outlined how marijuana
cultivators stagger planting in order to have a constant harvest of marijuana).
Manufacturing: U.S. v. Leasure, 319 F.3d 1092(9th Cir. 2003)(6 months not stale in complex manufacturing conspiracy).
Firearms: U.S. v. Horn, 187 F.3d 781 (8th Cir. 1999)(Even information 3 years old may not be stale for someone suspected of illegal possession of a firearm – Note: The court noted how firearm enthusiasts tend to retain their firearms).
Robbery: U.S. v. Bowman, 215 F.3d 951 (9th Cir. 2000)(10 months not stale in seeking instrumentalities of professional bank robber informant said was in planning phase of a new robbery).
Gambling: U.S. v. Tucker, 638 F.2d 1292 (3rd Cir. 1997)(6 weeks not stale for gambling paraphernalia in ongoing activity).
Billing Fraud: U.S. v. Hooshmand, 931 f.2d 725 (11th Cir. 1991)(11 months not stale as five of the doctor’s employees described an ongoing activity), U.S. v. Henson, 848 F.2d 1374(6th Cir. 1998)(1 year not stale in extensive odometer tampering scheme spanning over an extended period of time).
