Does the affidavit supporting a search warrant invalidate the search warrant for a home searched for a stolen gun after the original warrant was issued?

California, United States of America

The following excerpt is from People v. Wright, F060150, Super. Ct. No. BF130125A (Cal. App. 2011):

Appellant contends, however, that the affidavit set out no reason to believe that appellant still possessed the stolen guns almost six weeks after the original burglary, and the evidence of appellant's purchase of the guns was, in Fourth Amendment parlance, stale. In support of this contention, he cites a number of cases invalidating search warrants issued several weeks after the confirmed presence of controlled substances at a particular location. (See, e.g., People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.) In those cases, the suspect was selling a product meant to be consumed. It was a reasonable inference, in the absence of information indicating a renewal of the suspect's supply of contraband, that he would run out of inventory at some point. (See id. at pp. 1652-1653.)

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But the "question of staleness turns on the facts of each particular case. [Citations.] If circumstances would justify a person of ordinary prudence to conclude that an activity had continued to the present time, then the passage of time will not render the information stale." (People v. Hulland, supra, 110 Cal.App.4th at p. 1652.) Here, the evidence involved appellant's purchase of guns, not his sale of gunsthere was no inference of inventory depletion. Further, guns are not usually consumed through use, as are drugs. Finally, the affidavit asserted that appellant's gang was actively involved "in a current battle with other criminal street gangs where homicides [and other crimes of violence] have been committed," a circumstance that supports an inference that appellant would retain control of the guns for use in this "battle." Thus, the nature of the activity in this case is wholly different than the activity in a case involving drug sales, and the inferences concerning appellant's continued possession of the stolen guns differs as well. We cannot conclude, under all the circumstances, that the information was stale.

Appellant comes closer to the mark in arguing that the search warrant affiant had little reason to believe the stolen weapons would be found at the apartment for which the warrant was sought. After appellant's initial purchase of the guns, they were not seen in appellant's possession at the subject apartment (or anywhere else). "The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific 'things' to be searched for and seized are located on the property to which entry is sought." (Zurcher v. Stanford Daily (1978) 436 U.S. 547, 556.)

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