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UNITED STATES v. CORRIGAN

December 4, 1992

UNITED STATES OF AMERICA
v.
MICHAEL CORRIGAN



The opinion of the court was delivered by: JOHN T. NIXON

 At a hearing on November 30, 1992, the government argued that the Court should reconsider its Order entered August 28, 1992, and permit the government to introduce into evidence a pipe bomb defendant allegedly possessed.

 For the reasons set forth below, the Court hereby adheres to its prior ruling granting defendant's Motion to Suppress evidence of the pipe bomb.

 BACKGROUND

 On March 9, 1990, Officer Sulfridge of the Metropolitan Nashville Police Department applied for a search warrant to search defendant's residence for a pipe bomb. In his affidavit in support of the warrant, Officer Sulfridge referred to a conversation that he secretly taped, in which defendant allegedly mentioned having a pipe bomb in the barn behind his house, and allegedly offered to pay Officer Sulfridge to collect a gambling debt from another man and to assault him in the process. Officer Sulfridge obtained the warrant, and on March 9, 1990, searched the premises indicated, and found a pipe bomb.

 At a hearing before this Court on August 24, 1992, defendant Corrigan moved to suppress material seized during the search of his residence alleging that the search warrant was executed without probable cause. Defendant argued that the police officer failed to include in his affidavit any reference to the date he received the information which formed the basis of his warrant request, and that this omission violated the defendant's Fourth Amendment rights to be protected against searches based upon stale information.

 The government conceded that a search warrant based on potentially stale evidence could not support a finding of probable cause. The government claimed, however, that the warrant was protected by the good-faith exception to the exclusionary rule, since the officer believed he was acting on a valid search warrant and within the bounds of the law. The defendant argued that the good-faith exception did not apply under the circumstances of the instant case, and that the fruits of the search were inadmissible.

 The Court found in favor of the defendant, and on August 28, 1992, entered an Order granting defendant's Motion to Suppress. It is this Order the government requested that the Court reconsider at oral argument on November 30, 1992.

 DISCUSSION

 Probable Cause

 A valid search warrant may only be issued upon an affidavit or complaint which sets forth facts establishing probable cause. U.S. Const. amend IV; Fed. R. Crim. P. 4(a). To demonstrate probable cause, an affidavit must set forth facts sufficient to induce a reasonably prudent person to believe that a search thereof will uncover evidence of a crime. Berger v. New York, 388 U.S. 41, 55, 87 S. Ct. 1873, 1881, 18 L. Ed. 2d 1040, 1050 (1967); United States v. Laws, 257 U.S. App. D.C. 197, 808 F.2d 92, 94 (D.C. Cir. 1986) (footnote omitted).

 In other words, a finding of probable cause requires a determination that certain objects can currently be found at a particularly described place. 1 W. Ringel, Searches & Seizure Arrests and Confessions, ยง 4.2(a) at 4-13 (1988). "If the information is too old, it is considered stale and probable cause no longer exists." United States v. Rakowski, 714 F. Supp. 1324, 1329 (D. Vt. 1987) (citing Sgro v. United States, 287 U.S. 206, 210-212, 53 S. Ct. 138, 140-41, 77 L. Ed. 260 (1932)). Therefore, the dates of the occurrences alleged to create probable cause must be stated in the affidavit as a means of allowing the judicial officer to determine if the information is stale. United States v. Boyd, 422 F.2d 791, 792 (6th Cir. 1970).

 At the hearing on August 24, 1992, defendant argued that the age of the information could not be determined because the affiant neglected to indicate the date the alleged conversation occurred. Without this information, he maintained, the magistrate issuing the warrant could not have determined whether the information was stale, and thus executed the warrant without probable cause. *fn1" As the First Circuit stated in Rosencranz, the information could have been obtained "a day, a week, or months before the date of the affidavit."

 Some courts, however, have held that search warrants that failed to include the date, could be found valid on grounds that one could infer that the information was fresh from the language and totality of the affidavit, from the inclusion, for example, of words such as "now" and "recently". *fn2" While the government argued in its written Response to Motion to Suppress that one could infer freshness from the officer's actions if not from his words, *fn3" ...


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