Stale Information "Refreshed" by Contemporaneous Suspicious Activities
In United States v. Cantu, No. 04-3291 (May 6, 2005), the Tenth Circuit found probable cause in a search warrant for a vehicle. The probable cause finding was based upon two previous arrests for drug possession, one prior conviction for cocaine possession, unidentified confidential information that the defendant was supplying drugs, and suspicious activity involving a storage facility and a “large duffel bag”. The Tenth Circuit rejected the defendant’s argument that his previous arrests and conviction were stale and an improper basis for a probable cause determination.
The Hutchison, Kansas Police Department received a “tip” that defendant was dealing drugs and that his supplier was in El Paso, Texas. The Hutchison Police confirmed that defendant traveled to Texas by following him as far south as Stratford, Texas. (Stratford looks to be just miles from the Oklahoma border and about one-third of the way to El Paso from Witchita.). The Tenth Circuit described the Hutchison Police observations preceding the defendant's detention and the application for the search warrant:
On April 14, 2003, Officer Jamie Ty Schoenhoff observed Mr. Cantu operating the same vehicle he had driven to Texas. Around 10:00 p.m., officers followed Mr. Cantu to a storage facility. Officer Schoenhoff testified at the suppression hearing that he did not see Mr. Cantu access a storage shed. Instead, Mr. Cantu exited the vehicle and disappeared into a line of evergreen trees or bushes. Mr. Cantu's wife, Melina Pina, formerly a passenger in the vehicle, then drove the vehicle away from the storage facility. After following the vehicle for a short distance, Officer Schoenhoff returned to the storage facility. There he began surveillance and was soon joined by Detective Howard Shipley. Shortly thereafter, Ms. Pina returned in the vehicle. Officer Schoenhoff next observed Mr. Cantu emerge from the line of evergreens dragging a large black duffel bag on the ground. While neither officer observed Mr. Cantu placing the bag in the vehicle's trunk, Detective Shipley observed the trunk opening and closing. Mr. Cantu then entered the driver's side of the car and proceeded to exit the storage facility.
The above described “surveillance” and a tip that the Tenth Circuit acknowledged as having negligible probative value was sufficient probable cause for a warrant when combined with one prior drug conviction and two prior arrests for drugs. The Tenth Circuit held that the contemporaneous observation of the suspicious activity “harkened back” to the defendant’s previous arrests and refreshed what would otherwise appear to be stale information.
The Tenth Circuit also approved the defendant’s two hour detention while Hutchison Police secured a search warrant citing Illinois v. McArthur, 531 U.S. 326 (2001)(holding as reasonable a detention outside of residence while police secure a search warrant).