The Thin Affidavit and the Eleven-Day-Old Observation
You are the case agent preparing a federal search warrant affidavit for a residence that you believe is a cocaine stash house. Your confidential informant, who has provided information in three prior investigations resulting in two convictions, says he personally saw three kilograms of cocaine in the residence eleven days ago. He is paid, has a felony theft conviction, and his last documented controlled buy was four months ago. Your independent corroboration consists of a utility bill in the target's name and a records check showing the target's vehicle was seen at the residence twice by a patrol officer in the last month. You have six hours before the target is believed to move the cocaine. The prosecutor says the affidavit is 'thin but file it; the magistrate signs almost anything.' You must decide whether to submit, supplement, or wait.
1. Does the affidavit establish probable cause as written? Identify the strongest and weakest points.
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Probable cause is a practical, totality-of-the-circumstances judgment, not a checklist. The strongest point is that the informant claims firsthand observation of a specific quantity of cocaine in a specific place; that is a strong basis of knowledge. His prior track record also supports veracity. The weakest points are staleness and corroboration. Eleven days is not automatically stale for a stash house, but the affidavit needs a reason to believe the cocaine is still there, and the current corroboration is thin: a utility bill and two vehicle sightings do not show drug activity. The informant's felony theft conviction and paid status cut against his credibility and must be disclosed, not omitted. The last controlled buy was four months ago, so it does not corroborate current activity. As written, the affidavit may be sufficient to some magistrates, but it is vulnerable to a Franks challenge if material weaknesses are omitted. I would not describe it as strong probable cause without more.
2. What can you do in six hours to strengthen the showing without misleading the magistrate?
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I would focus on independent corroboration of current drug activity. A lawful trash pull, if policy allows and the residence is within the scope, could produce packaging or residue. A controlled buy by the informant, if authorized and properly documented, would be stronger than the eleven-day-old observation. Surveillance could confirm the target's vehicle, unusual traffic, or the presence of the informant's described vehicles. I would also check whether the informant's information can be partially corroborated, such as the layout of the residence or the target's association with known distributors. I would not ask the informant to repeat the same story and call it corroboration, and I would not omit his felony conviction or payment. If the six hours do not produce more, I would tell the prosecutor that the affidavit should either be supplemented or presented with a candid explanation of the informant's reliability and the reason to believe the cocaine remains.
3. The prosecutor says file it as is. What is your response, and what must the affidavit disclose about the informant?
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I would tell the prosecutor that I will submit an accurate affidavit, not a misleading one. The affidavit must disclose that the informant is paid, has a felony theft conviction, and last conducted a documented controlled buy four months ago. It must describe how he learned the information, why his prior information was reliable, and what independent corroboration exists. If the prosecutor wants to file immediately, I would include those facts and explain why the information is not stale, rather than omit them. If the prosecutor insists on a version that omits material weaknesses, I would document the disagreement and escalate through my supervisor or the prosecutor's supervisor. I would not sign an affidavit that I believe is misleading. Leon good faith does not necessarily cure a deliberate or reckless omission, and the agent's signature is a personal representation to the court.