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The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-1226

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United States of America, * 

* 

Appellee, * 

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa.

Thomas Caswell, * 

*

Appellant. *

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Submitted: November 14, 2005

Filed: February 3, 2006

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Before SMITH, HEANEY, and BENTON, Circuit Judges.

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SMITH, Circuit Judge.

Thomas Caswell appeals from the district court's1

 denial of his motion to

suppress evidence seized in the search of his home. He argues that the search warrant

leading to his conviction was not based on probable cause. Additionally, Caswell

argues that the "good-faith" exception to the exclusionary rule announced in United

States v. Leon, 468 U.S. 897 (1984), does not apply because the affidavit supporting

the search warrant was "bare bones" and so lacking in indicia of probable cause as to
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render reliance on it objectively unreasonable. We hold that probable cause supported

the search warrant and affirm. 

I. Background

On November 4, 2002, Chickasaw County Sheriff's Deputy Keith Rieck

received information from the Iowa Division of Narcotic Enforcement that Caswell

and Linda Evans had just purchased five boxes of Sudafed from Wal-Mart in Cedar

Falls, Iowa. Deputy Rieck and Iowa State Patrol Trooper Shawn Wuchter conducted

surveillance of Caswell's vehicle. Trooper Wuchter observed that Caswell and Evans

were not wearing seatbelts and conducted a traffic stop based on the seatbelt

violation. During the stop, Deputy Rieck searched Caswell, with his consent, and

found a baggie of methamphetamine and a short plastic tube in Caswell's shirt pocket.

Deputy Rieck also discovered a snort tube in Caswell's coat. Deputy Rieck arrested

Caswell for possession of methamphetamine. In a search of the vehicle incident to

Caswell's arrest, Deputy Rieck found a Pringles potato chip can under the front

passenger seat where Evans was sitting. Inside the can was a plastic sack with 321

Sudafed tablets, each containing 120 milligrams of pseudoephedrine. In the same

location, Deputy Rieck also found a small plastic tube with a baggie of

methamphetamine inside. Evans was then placed under arrest for possession of

methamphetamine and possession of precursors. Finally, Deputy Rieck found two

one-gallon cans of Coleman fuel in the truck. 

Following the traffic stop and arrest, Deputy Rieck applied for a search warrant

for Caswell's residence and surrounding property. Deputy Rieck's affidavit stated that

an ongoing narcotics investigation connected Caswell with the illegal use and

manufacture of narcotics. Specifically, it included information that Caswell was a

known associate of narcotics users and manufacturers; information on August 24,

2002, from an informant, a convicted narcotics user and methamphetamine

manufacturer, that Caswell had "heavy narcotic activity taking place at his residence"

and that "a lot of meth moves there;" information and a subsequent admission by
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Caswell that on November 4, 2002, he purchased five boxes of pseudoephedrine

tablets; information that when Caswell was stopped for not using his seatbelt he "was

shaking and appeared very nervous;" a statement by Caswell that he was "going

home" at the time of the traffic stop; methamphetamine found on Caswell's person at

the time of his arrest; and methamphetamine, 321 Sudafed tablets, and Coleman fuel

found in Caswell's vehicle at the time of his arrest. Deputy Rieck included in the

affidavit his knowledge that "Coleman fuel is used in the lithium/anhydrous method

of methamphetamine production."

 Based on the affidavit, the magistrate judge issued the search warrant, and law

enforcement executed the warrant on the same day. During the search of Caswell's

home, the officers seized numerous items of drug paraphernalia, precursors, and

related items. They also seized a firearm and several bullets and shells for various

firearms. A grand jury indicted Caswell on three drug offenses and two firearm

offenses. Subsequently, Caswell filed a motion to suppress. The magistrate judge

concluded that while it was "doubtful that the warrant application, standing alone,

provide[d] an adequate basis to conclude" that probable cause existed to search

Caswell's home, he did not have to decide the probable cause issue because it was

evident that the good-faith exception to the exclusionary rule applied.

 Caswell filed his objections to the magistrate judge's report and

recommendation, but the district court adopted the report. Caswell then entered a

conditional plea of guilty to three counts of the indictment—possession of

pseudoephedrine with intent to manufacture methamphetamine; conspiracy to

manufacture five grams or more of pure methamphetamine, and possession of a

firearm with an obliterated serial number. The district court sentenced Caswell to

concurrent 87-month terms of imprisonment on two of the counts and 60 months on

the remaining count to be served concurrent with the other convictions. Caswell filed

a timely notice of appeal. 
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Caswell does not challenge the validity of the search of his vehicle incident

to his arrest. 

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II. Discussion 

Caswell claims that his Fourth Amendment rights were violated because the

affidavit for the warrant to search his home contained insufficient information to

establish probable cause.2

 Specifically, he contends that the informant's tip was

unreliable and that the discovery of contraband in his car was insufficient to create

a fair probability that evidence of a crime would be found at his residence. We review

a district court's denial of a motion to suppress de novo, while we review the

underlying factual determinations for clear error. United States v. Carpenter, 422

F.3d 738, 744 (8th Cir. 2005). 

Under the Fourth Amendment, a search warrant is valid if it is based on

probable cause. Id. The determination of whether probable cause exists to issue a

search warrant is made using a "totality of the circumstances" test. Illinois v. Gates,

462 U.S. 213, 238 (1983). Applying this test, the magistrate should "make a practical,

common-sense decision whether, given all the circumstances set forth in the affidavit

before him, including the 'veracity' and 'basis of knowledge' of persons supplying

hearsay information, there is a fair probability that contraband or evidence of a crime

will be found in a particular place." Id. Probable cause is a "fluid concept;" therefore,

magistrates should read affidavits with common sense and "not in a grudging, hyper

technical fashion." Walden v. Carmack, 156 F.3d 861, 870 (8th Cir. 1998). 

When reviewing a magistrate's probable cause determination, we must "ensure

that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause

existed." Gates, 462 U.S. at 238–39 (quoting Jones v. United States, 362 U.S. 257,

271 (1960)). In addition, this court gives great deference to the magistrate's probable

cause determination. United States v. Arenal, 768 F.2d 263, 266 (8th Cir. 1985).

While a magistrate would not have a substantial basis for concluding probable cause
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existed where the affidavit was a "bare bones" recitation of conclusory statements by

the affiant, once "we move beyond . . . 'bare bones' affidavits . . . this area simply does

not lend itself to a prescribed set of rules." Gates, 462 U.S. at 239. We must affirm

a district court's denial of a motion to suppress "unless it is 'unsupported by

substantial evidence, based on an erroneous interpretation of the law, or, based on the

entire record, it is clear that a mistake was made.'" United States v. Gladney, 48 F.3d

309, 312 (8th Cir. 1995) (quoting United States v. Bieri, 21 F.3d 811, 814 (8th Cir.

1994)). 

To establish probable cause, an officer may rely on an informant's tip. When

an informant has provided reliable information in the past or where his tip was

independently corroborated, a court may deem the informant's tip sufficiently reliable

to support a probable cause determination. United States v. Leppert, 408 F.3d 1039,

1041 (8th Cir. 2005). "When an informant's information is at least partly corroborated

. . . 'attacks upon credibility and reliability are not crucial to the finding of probable

cause.'" Gladney, 48 F.3d at 313 (quoting United States v. Humphreys, 982 F.2d 254,

259 (8th Cir. 1992)). This court reads the affidavit in its entirety to see if it contains

"both statements from the informant and other information . . . providing a substantial

basis for finding a 'fair probability' that contraband or evidence of illegal activity

could be found at the residence stated in the search warrant." Id.

A time lapse between the informant's disclosure and the search warrant's

execution does not necessarily make probable cause "fatally stale." United States v.

Maxim, 55 F.3d 394, 397 (8th Cir. 1995). Courts must consider other factors, such as

the type of property subject to the search and the nature of the criminal activity

involved, in determining whether information is stale. Id. "Probable cause 'cannot be

quantified by simply counting the number of days between the occurrence of the facts

supplied and the issuance of the affidavit. Time factors must be examined in the

context of a specific case and the nature of the crime under investigation.'" Id.

(quoting United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993)). 
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We have upheld a search of a residence where the search warrant was based on

an automobile search incident to arrest. United States v. Searcy, 181 F.3d 975, 981

(8th Cir. 1999). In Searcy, two detectives, after receiving information from a

confidential informant, suspected that the defendant had drugs and a gun in his car

and that his car was stolen. The detectives arranged for a patrol car to be stationed

along the route that the defendant would take to a planned drug sale with the

confidential informant. Id. at 977. They informed the patrol officer that he should pull

over the vehicle because the left brake light was not functioning properly, the license

plates on the car did not match the vehicle, and the defendant's license was likely

suspended. Id. The officer did not know that the defendant was the subject of a drug

investigation. Id. After stopping the defendant, he subsequently arrested him for

operating a vehicle without a valid license, handcuffed the defendant, and searched

the passenger compartment of the vehicle. Id. The search yielded a loaded .380

caliber pistol next to the driver's seat and a small quantity of methamphetamine in the

defendant's wallet. Id. The officer noticed during the search that the VIN number was

missing from the dashboard and the vehicle appeared freshly painted. Id. One week

later, a detective applied for a search warrant to search the defendant's residence

based on the evidence discovered in the vehicle search. Id. In addition, the detective's

affidavit stated that, based on his experience, "persons dealing in narcotics will often

. . . have additional amounts of narcotics at their homes." Id. at 978. In rejecting the

defendant's argument that the search warrant was not supported by probable cause,

we held that the discovery of the gun and the methamphetamine in the vehicle, along

with the detective's statement that, in his experience, other narcotics would likely be

found at the residence, provided a substantial basis for the issuing judge to believe

that the items sought in the search warrant would be found at the defendant's

residence. Id. at 981. 

Other circuits have recognized that because magistrates are "entitled to draw

reasonable inferences about where evidence is likely to be kept, based on the nature

of the evidence and the type of offense," magistrates can infer, in the case of drug
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dealers, that "evidence is likely to be found where the dealers live." United States v.

Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986); United States v. Lamon, 930

F.2d 1183, 1188 (7th Cir. 1991) (quoting Angulo-Lopez, 791 F.2d at 1399). 

We hold that sufficient information existed within Deputy Reick's affidavit to

establish probable cause and support the issuance of a search warrant of Caswell's

home. First, while the affidavit did not indicate that the informant, a convicted

narcotics user, had provided reliable information in the past, the affidavit did list

evidence to corroborate the informant's statements that Caswell was involved in

narcotic activity: first, the affidavit stated that an ongoing police investigation

revealed Caswell to be involved with the use and manufacture of narcotics, and

second, the affidavit stated that Caswell purchased five boxes of Sudafed and had

methamphetamine on his person and in his car at the time of his arrest. In accordance

with Gladney, because the police corroborated part of what the informant said, an

attack upon the informant's reliability is not crucial to finding probable cause. 

Second, while the informant provided the information on August 24, 2002,

over two months before Caswell's arrest, other facts indicate that the information was

not stale. On November 4, 2002, as provided in the affidavit, Caswell admitted to

purchasing five boxes of Sudafed and had methamphetamine on his person and

methamphetamine and Coleman fuel in his car at the time of the arrest. In addition,

the officer, based on his experience, noted that Coleman fuel is used in the production

of methamphetamine. This evidence supports the informant's previous statement that

Caswell was involved in narcotics activity. 

Third, the affidavit contained other evidence that, when combined with the

police's ongoing investigation of Caswell and the informant's tip, could support an

inference that drugs may be found at Caswell's residence. The search of Caswell's car

produced methamphetamine, which the police used to support the warrant to search

Caswell's residence. In addition, the police found methamphetamine on Caswell's
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Because we find that probable cause existed to support the search warrant, we

need not address Caswell's additional argument that the "good faith" exception to the

exclusionary rule does not apply. 

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person during a consent search before they arrested him and searched his car. Because

probable cause existed to search Caswell's vehicle, and because the police used

legally-retrieved evidence from the vehicle to support the warrant to search Caswell's

residence, probable cause for the search existed. Also, Deputy Rieck's affidavit, like

the affidavit in Searcy, listed the evidence retrieved from the vehicle as support for

the search warrant. While Deputy Rieck did not state, like the detective in Searcy, that

persons dealing in narcotics often have drugs at their homes, Deputy Rieck did

include Caswell's statement that he was "going home" at the time of the stop and the

informant's statement that heavy narcotic activity occurs at Caswell's residence.

Accordingly, we hold that probable cause existed to support the search warrant

for Caswell's residence and affirm the district court's denial of Caswell's motion to

suppress.3

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