Legal Defense Against Stale Warrants: Part 2

by | Nov 20, 2015 | Blog, Criminal Law, Warrants

The seminal case on the issue of “staleness” in New Jersey is State v. Novembrino, 105 N.J. 95, 519 A.2d 820 (N.J., 1987). There, the police sought a search warrant through a sworn statement that was written in the present tense with regard to their evidence, but which provided no dates as reference points. The New Jersey Supreme Court held that:


The present tense is suspended in the air; it has no point of reference. It speaks, after all, of the time when an anonymous informant conveyed information to the officer, which could have been a day, a week, or months before the date of the affidavit. To make a double inference, that the undated information speaks as of a date close to that of the affidavit and that therefore the undated observation made on the strength of such information must speak as of an even more recent date would be to open the door to the unsupervised issuance of search warrants on the basis of aging information. Officers with information of questionable recency could escape embarrassment by simply omitting averments as to time, so long as they reported that whatever information they received was stated to be current at that time. Magistrates would have less opportunity to perform their “neutral and detached” function. Indeed, if the affidavit in this case be adjudged valid, it is difficult to see how any  function but that of a rubber stamp remains for them.


After Novembrino, law enforcement knew that they had to add some dates to their affidavits as points of reference. In the case of informants (people who are giving the police information in an effort to gain leniency with regard to their own criminal charges), our courts have allowed affiants to provide one week time frames, as opposed to definite dates. The rationale is that the police are entitled to keep their informants’ identities confidential and providing definite dates regarding informants’ actions would lead to the discovery of their identities. For example, if an informant was used to buy drugs from a house on April 8 and the target of the investigation only met with one person on April 8, it would not be difficult to figure out the confidential informant’s (commonly referred to as “C.I.s”) true identity. Thus, a typical affidavit will state that “during the week of” April 8, C.I. #1234 purchased drugs from X at location Y.


As with every other case that extends the state an inch of leeway, law enforcement tends to subsequently “take a mile.” Consider that the phrase that “during the week of April 8” can refer to any date within seven days of April 8” as there is no case law requiring that the first or last day of calendar week be be used as the point of reference. There is similarly no case law requiring that the week be referenced with the first day in the seven day period, as opposed to the last day. Thus, the phrase “during the week of” actually gives the state two weeks of leeway since “during the week of” can refer to the seven days prior to April 8 (April 1) through seven days after (April 15).” This makes it all the more difficult to demonstrate that the affiant lied in the affidavit. For example, one might be able to use a vacation itinerary to prove that during a one week or maybe even a ten day period, they could not have sold drugs at location x, because they were out of state in location y. Again, as a practical matter, law enforcement will usually conduct enough surveillance to know when someone is away for an extended period and thereby avoid using demonstrable lies in their affidavits.  Nevertheless, the relative lack of case law on the issue of warrant “staleness” makes it all the more important to hire an attorney with the imagination and fortitude to raise and successfully argue these novel issues.


The only other New Jersey case aside from Novembrino that provides much guidance is State v. Rogers, a 2009 unpublished Appellate Division case that arose in Ocean County, holding that a warrant is not to stale when it is executed between 4 and 18 days after the last alleged drug buy. The fact that this decision is “unpublished” means that the appellate division did not see fit to make the case binding precedent, but only found it to be persuasive authority. There is little wonder why considering the strained logic inherent in a holding that drugs located at a location 18 days ago make it probable that drugs will be there today. Still, a detail-oriented attorney can even glean a helpful argument from this otherwise unhelpful case. That is, the Rogers Court focused on the number of days between the last alleged drug buy and the date of the warrant execution, as opposed to the number of days between the issuance of the warrant (the day the judge signs the warrant) and the execution of the warrant (the day the police conduct the search). The standard boilerplate language in every warrant is that it must be executed within ten days. The standard lawyer stops his or her inquiry there, believing that if a judge said it should be executed within ten days, then ten days is not too long a period of time to make the warrant stale. However, a searching inquiry reveals that there are cases indicating that the passage of ten days is enough to create “staleness”.