Hemler v. Superior Court

In Hemler v. Superior Court (1975) 44 Cal. App. 3d 430, police obtained a search warrant based on evidence that an informant purchased cocaine at the petitioner's house 34 days earlier. ( Hemler, supra, 44 Cal. App. 3d at pp. 432-433.) The Hemler court found there was probable cause for issuing a search warrant either immediately after the sale to the informant or within a short time thereafter. However, the evidence was stale by the time the warrant was issued. The Hemler court acknowledged that staleness depends on the facts of each case. ( Id. at p. 434.) However, the court also found that cases involving the sale of contraband supported the conclusion that "in the absence of other indications, delays exceeding four weeks are uniformly considered insufficient to show present probable cause ." (Ibid.) The affidavit at issue in Hemler did not contain evidence of any other drug-related activity at the house either before or after the single sale 34 days earlier notwithstanding that (a) the informant had requested that additional drugs be provided and (b) the police investigation was ongoing. In light of these circumstances, the Hemler court concluded that the information relied upon to obtain the warrant was stale. (Ibid.)