Legal Defense Against Stale Warrants: Part 3

by | Nov 24, 2015 | Blog, Criminal Law, Warrants

In the face of a lack of binding precedent in New Jersey, a good attorney will analyze precedent from other jurisdictions in an effort to buttress an otherwise novel argument in New Jersey. In United States v. Elliott, 576 F. Supp. 1579, a 1984 federal case from the Southern District of Ohio, the Court refused to affirm a warrant that was issued due to bits of marijuana being found in a home’s garbage. The Court held in relevant part that:


Furthermore, the nature of the evidence is not such that its continued presence in the home is probable. To the contrary, this refuse is merely the waste product of past marijuana use. Moreover, it is unclear when that past use occurred, when the garbage was removed from the house or even when it was scheduled to be picked up. Even assuming weekly garbage collection, the contraband may well have been evidence of marijuana use five days prior to the examination of the garbage. Without corroboration, we cannot say that this supports a conclusion of the probable presence of contraband on the day of the search.


Here, the Elliott Court suggested that without additional corroboration indicating that there was a “continuing pattern of criminal acts”, the passage of only five days, as opposed to 18 days or more, is enough to make a warrant “stale” and the evidence seized as a result subject to suppression.


The Elliott Court continued:

We can conceive of the argument that the anonymous complaint and the affiant’s surveillance, despite their deficiencies, are corroborative of the contraband found in the garbage, and therefore permit the conclusion of the continued presence of contraband. Given the nature of the contraband found in this case, we find this argument unpersuasive. The waste products of marijuana use do not, of themselves, indicate any continuing presence of contraband in the home. As for the complaints and the surveillance, it is difficult to perceive how information which was pertinent perhaps weeks or months before can permit the inference of a current continued presence of contraband, even assuming that such information may have indicated a continued presence at that earlier time. Such conjecture is more appropriate in the discussion of possibilities than it is in the discussion of probabilities.  

Thus, there is a strong argument that the passage of multiple weeks makes a warrant stale “per se”. Equally strong is the Court’s counter-argument to law enforcement’s common claim that they uncovered evidence “of a continuing offense.” The Elliott Court drew an important distinction between what was once “continuing”, i.e. a week where multiple drug sales were made last year, and a “presently continuing” crime involving evidence that multiple sales were made within the last few days.


The Elliott Court continued:

We are aware of cases in which evidence of drug use discovered in the defendant’s garbage contributed to or provided the sole basis for the determination of probable cause. See United States v. Sumpter, 669 F.2d 1215 (8th Cir.1982); United States v. Reicherter, 647 F.2d 397 (3d Cir.1981). However, in Sumpter the presence of marijuana in the garbage was accompanied by an anonymous tip received three days prior, and the hearsay statements of the garbage carrier that on the day of the garbage search, several cars had made short stops at the defendant’s home during the time it took to collect the refuse in the alley.

Reicherter is somewhat more instructive for the purposes of this case. There, probable cause rested entirely on the evidence found in the defendant’s garbage. However, the evidence was collected on three separate occasions, thus indicating a continuing presence of contraband in the defendant’s home. Significantly, the instant case involves a single search of the defendant’s garbage, an examination that yielded perhaps a small amount of discarded marijuana cigarettes and stems. We do not think that such evidence of a single instance of past use, even in the immediate past, renders the continued presence of contraband reasonably probable.


These paragraphs from the Elliott Opinion provide yet another sub-issue to be considered when challenging a warrant search. That is, the Court suggests that alleging one drug buy from a home is not enough to demonstrate “a continued presence” of drugs, whereas three drug buys would be sufficient. Whether or not two buys is enough is a question that you will want contested by an attorney that focuses his or her practice on criminal defense and appellate work, as opposed to a “general practitioner” that dabbles in criminal defense or someone purporting to be a “criminal defense lawyer” even though they have no jury trial or even criminal motion practice experience.

In a footnote, the Elliott Court aptly stated that “To conclude that such a single instance provides sufficient probable cause for a search warrant would be to subject to a full and probing search, the home of a cocktail party host, whose guests, perhaps unbeknownst to him, indulge in illicit substances and discard the residue. We are not prepared to say that such searches are reasonable within the meaning of the Fourth Amendment.”