## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-4359

___________ United States of America, * * Appellee, * * v. * Appeal from the United States District * Court for the

Southern District of Iowa. Deano Babe Formaro, * * Appellant. *

___________ Submitted: May 12, 1998 Filed: July 29, 1998

___________ Before McMILLIAN, ROSS and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ ROSS, Circuit Judge.
Deano Babe Formaro appeals from a judgment entered upon a conditional guilty plea to conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§The Honorable Ronald E. Longstaff, United States District Judge for the 1 Southern District of Iowa, denied Formaro's first motion to suppress. The Honorable Harold D. Vietor, Senior United States District Judge for the Southern District of Iowa, denied a second motion. -2- 841(a)(1 ) and 846. In the plea Formaro reserved his right to challenge the distric t court's denials of his suppression motions. We affirm. 1

OnMarch 21, 1997, Officer John Van Haaften, who was assigned to a county drug task force, submitted an application for a warrant tosearch Formaro's house. Van Haaften stated that since January 1996 the task force had been investigating Formaro and his wife for illegal drug distribution and during that time confidential informant s had made controlled purchases of marijuana and methamphetamine from Formaro' s house. In attachments to the application, Van Haaften stated that the informants had given reliable information in the past and that th eir information as to Formaro had been
cor roborated. A state court judge issued the warrant that day. On executing th e warrant one week later, officers found one pound of methamp hetamine, one-half pound of marijuana, over $29,000 in cash, a pistol, and drug paraphernalia.
On appeal, Formaro argues that the district court erred in denying his motion to suppress, claiming the information in the search war rant application was too vague and too stal e to establish probable cause. His arguments are without merit. "Probabl e
cause is a fair probability that contraband or evidence of a crime will be found in the location to be searched." United States v. LaMorie , 100 F.3d 54 7, 552 (8th Cir. 1996). "Ourdut y as a reviewing court is to ensure that the issuing judge had a 'substantia l basis' for concluding that probable cause existed, and we owe substantial deference toFormaro also incorrectly argues that the information in the application was 2 vague as to the location of the controlled buys. In the application, Van Haaften specifically stated that the informants had made "controlled purchases of marijuana -3- the determination of probable cause by the issuing judge." Id. (quoting Illinois v

. Gates , 462 U.S. 213, 236 (1983)).

For maro does not dispute that "[t]he statements of a reliable confidentia l informant are themselves sufficient to support probable cause for a search warrant. " United Stat es v. Wright , No. 97-2869, 1998 WL 271534, at *2 (8th Cir. May 29 , 1998). Howev er, he argues that Van Haaften's information concerning the reliability of the confidential informants was too vague. We disagree. "The reliability of a confidential informant can be established if the person has a history of providing law enforcement offi cials with truthful information." Id. In this case, Van Haaften noted that one of the informants had supplied information fifteen times and the information hadled to two search warrants, four arrests and five drug charges, and that the other informa nt had supplied truthful information that led to seizure of contraband. "[T]his informat ionadequately established the informant[s'] track record and hence, [their ] reliability." Id.

Moreover, "corroboration of the [confidential informant's] information b y indep endent

investigation is an important factor in the calculus of probable cause. " LaMo rie , 100 F.3d at 553. As to the controlled buys, Van Haaften noted that th e informants had been se arched before the buys and, except for the time they were with Formaro, were under constant surveilla nce. Thus, the "issuing judge had a 'substantial basi s' for concluding" that drugs would be found in Formaro's house. Id. at 552; see 2and methamphetamine from the Formaro[s'] residence," and in an attachment stated

that one of the informants went into the house to purchase drugs. Even if the other informant had not purchased drugs at the house, there was sufficient probable cause to believe that evidence of drug activity would be found in the house. See United States v. Hulett , 22 F.3d 779, 780 (8th Cir.) ("Few places are more convenient tha[n] one's residence for use in planning criminal activity and concealing fruits of a crime.") (internal quotation omitted), cert denied , 513 U.S. 882 (1994). At the suppression hearing, Van Haaften testified that there were three 3 controlled buys. -4- also United States v. Phillips , 88 F.3d 582, 586 (8th Cir. 1996) (officer's information in search warrant application establish ed probable cause "based on the stated previous experience with the informant and the independent corroboration of his othe r comments").

We also reject Formaro's argument that the application was deficient because, except for the date of the last controlled bu y, Van Haaften did not indicate the dates or the number of the

other sales. Although it would have been preferable to include the

3 information, we are "n ot convinced that the lack of specific dates [or number of buys] dep rived the [judge] of essential information in determining probable cause." United States v. McKeever , 5 F.3d 863, 8 66 (5th Cir. 1993). Applications "should be read in

a ' common-sense and realistic fashion' and [judges] must make a practical decisio n based on the totality of the circumstances." Phillips , 88 F.3d at 585 (quoting United States v. Gladney , 48 F.3d 309, 312 (8th Cir. 1995)). In this case, even though th e information in the application "lack[ed] factual specificity as to the exact dates," United States v. $149,442.43 , 965 F.2d 868, 873 (10th Cir. 1992), we believe that Va n Haaften's statements that Formaro had been under investigation since January 1996 and-5-

that during that time informants had made controlled purchases established probabl e
cause to believe that Formaro had been involved in ongoing drug activity. As th e government points out, the information in the application "support[ed] the inference that [Formaro] was more than a on e-time drug seller." United States v. Pitts , 6 F.3d 1366, 1370 (9th Cir. 1993); see also United States v. Murphy , 69 F.3d 237, 240 n.2 (8th Cir. 1995) ( aff idavit sufficient to support probable cause despite concerns about its "bare bones nature").

Nor, as F ormaro argues, did the fact that the last controlled buy was made two

an done-half weeks before the application render the information in the applicatio n stale. It is true tha

t "[p]robable cause must exist when a warrant is issued, not merely at some earlier time." LaMorie , 100 F.3d at 554. However, "'[t]here is no bright-line test f or determining when information is stale . . ., and the vitality of probable caus e cannot be quantified by simply counting the number of days between the occurrenc e of the facts supplied and the issuance of the affidavit.'" Id. (quoting United States v. Koelling , 992 F.2d 817, 822 (8th Cir. 1993)). "'Time factors must be examined in the context of a specific case and the nature of the crime under in vestigation.'" Id. (quoting Koelling , 922 F.2d at 822). In addition, "[w]here continuing criminal activity i s suspected, the passage of time is less significant." Id. In this case, given tha t "continuing criminal activity [wa]s suspected," id. , the two and one-half weeks lapse did not negate the existence of probable cause. Indeed, "in investigations of ongoing narcotics operations, 'intervals of weeks or months between the last described act and the application fo r a warrant did not necessarily make the information stale.’" United States v. Ortiz , N o. 96-1183, 1998 WL 228126, at *5 (2d Cir. May 8, 1998) (quoting Rivera v. United States , 928 F.2d 592, 602 (2d Cir. 1991)); see also Pitts , 6 F.3d atEven if the application were deficient, we agree with the district court's 4 alternate holding that the search was lawful under the good-faith exception of United States v. Leon , 468 U.S. 897, 923 (1983). Under this exception, "absent allegations that the [issuing judge] was not neutral, 'suppression is appropriate only -6- 1369 (" ’With respect to drug trafficking, probable cause may continue for severa l weeks, if not months , of the last reported instance of suspect activity.’'') (quotin g United States v. Angulo-Lopez , 791 F.2d 1394, 1399 (9th Cir. 1986)).

Lik ewise, "[b]ecause continuing criminal activity was suspected an d corroborated, probable cause did no t dissipate in the [seven] days that lapsed between the time the state court issued the warrant an d its execution." United States v. Gibson , 123 F.3d 1121, 1125 (8th Cir. 1997) (four-day delay in executing search warrant for drugs did not invalidate search); United States v. Williams , 10 F.3d 590, 594-95 (8th Cir. 1993) (given ongoing nature of dr ug trafficking, eight-day delay did not invalidate search).
Formaro's argument that the district court erred in failing to hold a Frank s hearing is also without merit. Under Franks v. Delaware , 438 U.S. 154 (1978), " a facially valid affida vit for a search warrant may be challenged if it contains deliberate or reckles s misrepresentations." LaM orie , 100 F.3d at 555. It is well-established that the burden is on "the defendant to show that the affiant omitted facts with the intent to make, or in reckless disregard of whether the omissions made, the affidavit misleading, and that the affidavit, if supplemented by the omitted information, could not support a finding of probable cau se." Id. Here, as the district court held, Formaro failed to make th e required showing. 4if the officers were dishonest or reckless in preparing their affidavit or could not

have harbored an objectively reasonable belief in the existence of probable cause.' " United States v. Fulgham , No. 97-3681, 1998 WL 208101, at *3 (8th Cir. Apr. 30, 1998) (quoting Leon , 468 U.S. at 926). -7- Accordingly, the judgment is affirmed.
A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT