United States v. Clarence Holmes

MEMORANDUM

Appellant Clarence Austin Holmes appeals the denial of his motion for suppression. We affirm. Because the parties are familiar with the facts and the procedural history, we will not recount them here.

Holmes first contends that probable cause for the warrant that gave rise to the search (which occurred as officers were approaching Holmes’ residence to execute the warrant) depended on stale information. Staleness does not infect the probable cause showing where the circumstances give rise to a reasonable inference that the items to be seized are presently on the premises — as occurs, for example, where the underlying criminal activity is ongoing and continuous. United States v. Dozier, 844 F.2d 701, 707 (9th Cir.1988).

Here, facts contained in the affidavit established probable cause to believe that a gang-related shootout had occurred about five months before the warrant issued. The affiant’s training and experience related to gang activity established a basis on which the issuing judge could find probable cause to believe that gang members tend to keep their weapons. This, in turn, justified the judge’s finding of present probable cause as to the weapon which a…