(1979) (information stale where affidavit does not state when the officers received the information from their informer nor when the informer obtained his information).
Although the affidavit fails to provide the date and time of the controlled purchase, the government argues that it is understood by law enforcement officials and judicial officers in the District of Columbia that applications for search warrants are, as a matter of practice, made soon after a controlled purchase and that the judicial officer in the instant case presumably took implicit notice of the fact. The government relies upon United States v. Watson, 551 F. Supp. 1123 (D.D.C. 1982), where the court upheld a finding of probable cause to issue a search warrant based on the lead of a drug sniffing dog. Although the affidavit failed to establish the dog's veracity, i.e., its training to sniff drugs, the court held that the technique for canine-conducted narcotics searches "is now sufficiently well-established to make a formal recitation of a police dog's curriculum vitae unnecessary in the context of ordinary search warrant applications." Id. at 1127.
As a threshold matter, the courts should be extremely cautious in allowing a probable cause finding to be made based on information outside of the affidavit and of which the judicial officer is only presumed to know, especially where that information is critical to such a determination. Moreover, the government's reliance on Watson is inapposite. In Watson the court based its judicial notice on the fact that police dogs are subject to consistent and established training procedures. However, the government in the instant case has made no showing that all applications for search warrants are in fact made within an established period of time, i.e., 24 hours, after the date of a controlled purchase of narcotics.
The government further contends that notwithstanding the failure of the affidavit to state the date of the controlled buy it is otherwise apparent from the affidavit that the drug activity was an ongoing enterprise at the time that the police applied for the search warrant. When an affidavit describes an ongoing course of criminal conduct, there is greater reason to conclude that the items will be recovered. Accordingly, in such a case "'the passage of time between the last described act and the application for the warrant becomes less significant.'" United States v. Turner, 713 F. Supp. 714, 720 (D.Vt. 1989) (quoting United States v. Payden, 613 F. Supp. 800, 814 n. 10 (S.D.N.Y. 1985)).
In the instant case, there is no basis in the affidavit to find ongoing criminal activity at the time the warrant was issued. The government relies upon the statement by the informant contained in the affidavit that crack "was being sold" out of the premises.
However, the statement essentially begs the question that is raised by the failure to include the date and time of the controlled purchase, namely, when was crack being sold. Whether the crack "was being sold" a day, a week or months before the time of the affidavit is as important and relevant to determining probable cause as the date of the controlled purchase. This Court does not accept the government's implicit assumption that if crack was at one time being sold then the operation is ongoing until interrupted by law enforcement activity. Precisely because of its illegality a drug trafficking scheme has an attenuated existence unlike a legitimate business with an ongoing or continuing concern. To point out the obvious, the goal of selling drugs is to dispose of them and whether the dealer has an available and steady supply with which to restock his merchandise is dependent upon a variety of factors, including the success of law enforcement in interdicting cocaine before it gets into the United States. This is not a case in which there were multiple controlled purchases or continuing surveillance of the premises by the police. The statement that crack "was being sold" and a single undated controlled purchase does not suggest an ongoing criminal scheme.
The inability to determine the currency of the controlled purchase is especially troubling in the instant case because of the nature of the evidence sought and the nature of the illegal activity. A nexus exists between the currency of the information and these other factors. In many cases where courts have found freshness and probable cause to support a search warrant the authorities have sought material of a permanent nature, i.e., documents and records. See United States v. McGrath, 622 F.2d 36, 42 (2d Cir. 1980) (no staleness where bookmaking records of an ongoing gambling operation are "relatively permanent . . . paraphernalia"); United States v. Matthews, 572 F.2d 208, 209 (9th Cir. 1977) (reasonable to expect documents and records to remain on premises for at least a month). In the instant case the criminal activity is the sale of drugs which by definition seeks to dispose of the contraband. Accordingly, the need to know of the date of the controlled purchase was imperative in order to find probable cause. Thus, based on the totality of the circumstances, this Court rules that the search warrant was not supported by probable cause.
Notwithstanding the lack of probable cause for the search warrant, the United States Supreme Court has approved a good-faith exception to the exclusionary rule. It held in United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984), that evidence could be admitted even if it was obtained by officers executing a search warrant which was not supported by probable cause. Suppression remains a remedy, however, in four circumstances, two of which are pertinent in the instant case: (1) "when the affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable" and (2) when a warrant is so facially deficient "that the executing officers cannot reasonably presume it to be valid." Id. at 923.
In the instant case, the law enforcement authorities were not justified in relying upon the warrant because on its four corners the affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." As the court held in Herrington,
Pursuant to Leon and Collins [ v. State ] we do not hold that the absence of a reference to time in an affidavit makes the subsequent warrant automatically defective. Rather, in such a situation, we look to the four corners of the affidavit to determine if we can establish with certainty the time during which the criminal activity was observed. If the time can be inferred in this manner, then the police officer's objective good faith reliance on the magistrate's assessment will cure the omission.
697 S.W.2d at 900-901. This Court rules that the good-faith exception to the exclusionary rule is not available under the standard enunciated in Leon. In the present case, a reasonably well-trained officer would have known that more was needed to establish probable cause than what was contained in the affidavit.
Accordingly, it hereby is
ORDERED that the Motion to Suppress Physical Evidence be, and the same hereby is, GRANTED; and it is further
ORDERED that the physical evidence be, and the same hereby is, SUPPRESSED as to all the defendants.