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UNITED STATES v. BARR

September 13, 1993

UNITED STATES OF AMERICA
v.
JAMES V. BARR, III



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

 On August 23, 1993 this Court heard oral argument on Defendant's Motion to Suppress (Doc. No. 66) items of personal property seized from his office, on or about January 19, 1993, pursuant to a federal search warrant. For the reasons that follow the Court grants Defendant's Motion.

 BACKGROUND

 DISCUSSION

 Defendant argues that the Government used three-month-old information regarding the existence of $ 25,000 in cash to remove items of personal property from Defendant's safe which had no apparent relation to the cash. He contends that the warrant should never have been issued because the information forming the basis of the warrant was stale, and because the warrant itself was overbroad.

 The Government argues that there is no staleness problem. Probable cause for the search warrant existed because there were reasonable grounds for belief of criminal activity. Furthermore, according to the Government the warrant adequately specified the objects of the search and the items seized in the search were within those limitations.

 I. Staleness of the Search Warrant With Respect to the Currency Seized in the Search

 A search warrant can be granted only upon probable cause, U.S. Const. amend. IV., and probable cause must exist at the time the warrant issues. Sgro v. United States, 287 U.S. 206, 210-11, 53 S. Ct. 138, 140, 77 L. Ed. 260 (1932). Sgro involved a search of a hotel for liquor based on a warrant that was originally granted twenty-one days before the search was made. Id. The Supreme Court reasoned that probable cause which existed at the date of the issuance of the warrant did not exist days later and thus, invalidated the warrant. Id.

 Defendant argues that the search warrant in the present case was based on stale information and therefore, there was no probable cause to justify the warrant. Defendant's conclusion is based on the fact that the Government relied on a photograph of a vault with stacks of United States currency and a newspaper dated October 16, 1992 to obtain the warrant. Warrant with McGraw Aff. at 7 (Doc. No. 1). In light of the disposable nature of money and the fact that more than three months elapsed before the search, according to Defendant, there was no reason to believe that the $ 25,000 would be in the vault.

 The Government's very narrow position is that the search for the $ 25,000 lump sum defeats staleness. The Government argues that while fungible, and spendable, Ms. Ross would have kept the whole lump sum together because she was awaiting approval on a loan for which the $ 25,000 was collateral. Thus, it was reasonable to believe that the money was still in the safe and not spent.

 The Court finds sense in the Government's argument and finds probable cause existed to search, but only to search for the full $ 25,000 amount, not merely for "any money at all." When the agent found only $ 1,350, according to Government's own theory, he no longer had probable cause to seize it. The grounds for the search became stale at that moment. The circumstance against which the Fourth Amendment protects materialized: old information with respect to fungible material cannot authorize the seizure of goods which can no longer be identified as that for which one is searching. See Sgro.

 The Court concludes that the only possible rationale for seizing $ 1,350 would have been if the agent had a list of all of the serial numbers on the entire $ 25,000, and then wanted to compare the numbers. However, even in such a situation, it would have been preferable for the agent to simply photograph ...


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