A magistrate may only issue a search warrant when there is probable cause to support it. People v Keller, 479 Mich 467, 475 (2007); People v Ulman, 244 Mich App 500, 509 (2001).
For a summary of the search warrant process, including the probable cause requirement, see the Michigan Judicial Institute’s checklist describing the process for issuing a search warrant and the checklist describing the process for electronically issuing a search warrant.
“Probable cause sufficient to support issuing a search warrant exists when all the facts and circumstances would lead a reasonable person to believe that the evidence of a crime or the contraband sought is in the place requested to be searched.” People v Brannon, 194 Mich App 121, 132 (1992).
Regarding the degree of probability required for “probable cause,” the Michigan Supreme Court has held that to issue a search warrant a magistrate need not require that the items be “more likely than not” in the place to be searched; rather, a magistrate need only reasonably conclude that there is a “fair probability” that the evidence be in the place indicated in the search warrant. People v Russo, 439 Mich 584, 614-615 (1992).
“A search warrant must be supported on probable cause existing at the time the warrant is issued.” People v Osborn, 122 Mich App 63, 66 (1982). “Nevertheless, a lapse of time between the occurrence of the underlying facts and the issuance of the warrant does not automatically render the warrant stale.” Id. “[T]he measure of a search warrant’s staleness rests not on whether there is recent information to confirm that a crime is being committed, but whether probable cause is sufficiently fresh to presume that the sought items remain on the premises.” People v Gillam, 93 Mich App 548, 553 (1980). “Such probable cause is more likely to be ‘sufficiently fresh’ when a history of criminal activity is involved.” Osborn, 122 Mich App at 66, quoting Gillam, 93 Mich App at 553.
Staleness “is not a separate doctrine in probable cause to search analysis”; instead “[i]t is merely an aspect of the Fourth Amendment inquiry.” Russo, 439 Mich at 605. “Time as a factor in the determination of probable cause to search is to be weighed and balanced in light of other variables in the equation, such as whether the crime is a single instance or an ongoing pattern of protracted violations, whether the inherent nature of a scheme suggests that it is probably continuing, and the nature of the property sought, that is, whether it is likely to be promptly disposed of or retained by the person committing the offense.” Id. at 605-606.
Stale information cannot be used in making a probable cause determination. United States v Frechette, 583 F3d 374, 377 (CA 6, 2009).1 In determining whether information is stale, the court should consider the following factors: (1) the character of the crime (is it a chance encounter or recurring conduct?); (2) the criminal (is he or she “nomadic or entrenched?”); (3) the thing to be seized (is it “perishable and easily transferrable or of enduring utility to its holder?”); and (4) the place to be searched (is it a “mere criminal forum of convenience or [a] secure operational base?”). Id. at 378. In Frechette, the court applied the above-listed factors to conclude that 16-month-old evidence that the defendant subscribed to a child pornography website was not stale, because the crime of child pornography is not fleeting; the defendant lived in the same house for the time period at issue; child pornography images can have an infinite life span; and the place to be searched was the defendant’s home. Id. at 378-379.
There is no bright-line rule regarding how much time may intervene between obtaining the facts and presenting the affidavit; however, the time should not be too remote. People v Mushlock, 226 Mich 600, 602 (1924). “[T]he test of remoteness is a flexible and reasonable one depending on the facts and circumstances of the particular case in question.” People v Smyers, 47 Mich App 61, 73 (1973).
1.Evidence Stale
•Affidavit alleging that defendant illegally sold liquor four days earlier, absent evidence of continuing illegal activity. People v Siemieniec, 368 Mich 405, 407 (1962).
•Affidavit alleging a single controlled drug buy made three days before warrant issued, because there was no evidence to suggest that defendant would still possess the marijuana at the time the warrant was executed. People v David, 119 Mich App 289, 296 (1982).
•Affidavit alleging liquor sales and gambling conducted on premises six days earlier, absent evidence of continuing illegal activity. People v Wright, 367 Mich 611, 614 (1962).
•Affidavit alleging drug sales to undercover police officer made more than one month before warrant issued. People v Broilo, 58 Mich App 547, 550-552 (1975).
2.Evidence Not Stale
•Six day delay between issuance of warrant and affiant’s visit to defendant’s home and observation of stolen dress. People v Smyers, 47 Mich App 61, 72-73 (1973).
•Affidavit alleging that a typewriter used to prepare forged checks had been seen in defendant’s apartment several months earlier, because information indicated a continuing criminal enterprise. People v Berry, 84 Mich App 604, 608-609 (1978).
Committee Tip:
In operating while intoxicated cases, although M Crim JI 15.5(6) states that the jury “may infer that the defendant’s bodily alcohol content at the time of the test was the same as [his / her] bodily alcohol content at the time [he / she] operated the motor vehicle[,]” the affidavit should indicate the time of the stop. It is common for the police officer to fail to indicate the time of the stop in the affidavit.