## The Honorable Michael J. Melloy, Chief Judge, United Sta tes District Court for 1 

## the Northern District of Iowa. United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-3667

___________ United States of America, *

Plaintiff-Appellee, * Appeal from the United States

v. * Northern District of Iowa.
Mack R. Gibson, *

Defendant-Appellant. * *

* District Court for the

*

*

*

___________ Submitted: April 14, 1997 Filed: September 4, 1997

___________ Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

___________ HANSEN, Circuit Judge.

In this direct criminal appeal, Mack R. Gibson appeals th e suffic iency of the evidence to sustain his controlled substance s convictions and the district court's denial of his motion to suppres s 1 evidence seized from his apartment. We affirm.

## -2- Mack R. Gibson (Gibson), a 61-year-old repeat drug offender, live d in an apartment in Cedar Rapids, Iowa, with his teenage nephew, William M. Gibso n, also known as "Little Mack." An informant contacted the Ceda r Rap ids Police Department, alleging that Mack Gibson was engaging in th e distribution of cocai ne. The informant had purchased cocaine from Gibson

on n umerous previous occasions. He stated that he had also receive d cocaine from Little M ack at Gibson's apartment. On February 8, 1994, the police met with the informant, who arranged to purchase cocaine at Gibson' s apartment later that day. The police searched t he informant to be certain he did not possess any cocaine and provided him with $100. As planned, th e police watched the informant enter Gibson's apar tment with $100 and return with .243 grams of cocaine, which he reported pu rchasing from Mack Gibson. Police observed the t ransaction from outside, but no devices were used to record the conversation or to otherwise monitor the transaction.

On the basis of this information, Detective Mark Fischer of the Cedar Rapids Police Departm ent submitted an application for a search warrant to the Iowa state district court. The warrant issued on February 10, 1994. Four da ys later, on February 14, 1994, Detective Fischer executed th e warrant and found two bags of cocaine in Gibson's bedroom. Subsequently, the government indicted Gibson on one count of d istribution of cocaine and one count of possession with intent to distribut e cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (1994).

Before tr ial, Gibson filed a motion to suppress the evidence seized during the search. Gibson contended that the po lice officers unreasonably delayed executing the warrant such that probable cause had dissipated by the time the warrant was executed. Gibson did not contend that no probabl e
cause exi sted to issue the warrant in the first instance. The distric t court denied the motion to suppress, finding that the four-day delay i n executing the warrant did not render it stale.

## -3- The case proceeded to trial. Detective Fischer, the polic e informant, and several other persons testified at trial concerning Gibson' s drug possession and drug trafficking activities. The jury convicted Gibso n
on b oth counts of the indictment. Gibson now appeals, alleging tha t probable cause did no t exist to justify issuing the search warrant in the first instance, that the finding of probable cause was stale by the time the warran t was executed, and that the evidence was not sufficient t o support his convictions. We first address Gibson's contention that the search was unlawfu l because the warrant-issuing state court erroneou sly found the existence of probable cause. Gibs on correctly acknowledges that he did not raise this issue before the fede ral district court in his motion to suppress. Thus, we review only for plain error. See United Stat es v. Olano , 507 U.S. 725, 735-36 ( 1993). "'Plain error occurs if (1) there is an error, (2) th e
error i s obvious, and (3) the error affects a defendant's substantia l rig hts.'" United States v. Guerra , 113 F.3d 809, 816 (8th Cir. 1997 ) (quoting United States v. Hill , 91 F.3d 1064, 1072 (8th Cir. 1996)). To affect a defendant's substantial rights, the err or must have prejudicially influenced the outcome of the proceedings below. Id. See Olano , 507 U.S

. at 734. Gibson co ntends that there was no probable cause to support th e issuance of the warrant. In support of this argument, Gibson contend s that the search warrant application, prepared by Detective Fischer , re presented to the court that the informant had a reputation fo r truthfulness without first investigating to determine whether the informan t in fa ct had a reputation for truthfulness. Also, Gibson contends tha t Detecti ve Fischer misled the issuing judge concerning the informant' s reliability by checking a box on the search warr ant application form which indicated that the in formant had not given false information in the past. In reality, this informant had never provided any information at all in th e past. A presumption of validity accompanies the affidavit supporting a search warrant. Franks v. Delaware , 438 U.S. 15 4, 171 (1978). A district court is not required to hold

## -4-

a hearing for the purpose of determining the veracity of the affiant unles s the defendant makes a "substantial preliminary showing of a false o r reckless false statement or omission" and demonstrates that "the alleged false statement or omission was necessary to a f inding of probable cause." Unite d States v. Hiveley , 61 F.3d 1358, 1360 (8th Cir. 1995) (interna l quotations omitted). See Franks , 438 U.S. at 171-72. Mere negligence on the part of law enforcement officers will not suffice. Franks , 438 U.S. at 170. Furthermore, "[w]here the informant['s] information is at least partially corroborated, attacks upon credibility and reliability are not crucial to the finding of probable cause." United States v. Humphreys , 98 2 F.2d 254, 259 (8th Cir. 1992), cert. denied , 510 U.S. 814 (1993).

Gi bson has not demonstrated that Detective Fischer's statements i n his affi davit were either false or a reckless omission of relevan t information. See Uni ted States v. Johnson , 78 F.3d 1258, 1262 (8th Cir.) (holding an officer's assertion that the informant has not given fals e information in the past, where in fact the informant has never provided an y information, does not amount to a false statemen t or a statement made with

rec kless disregard), cert. denied , 117 S. Ct. 227 (1996). Furthermore , neither of Gibson's allegations calls into doubt the existence of probable

cause to issue the search warrant in this case. The informant her e notified the police that Gibson was one of his sources for cocaine, and th e police corroborated this information by arranging a cocaine transactio n with the i nformant that took place at Gibson's apartment. The polic e officer 's observation of this transaction was sufficient to establis h probable cause to sea rch the apartment. Gibson's challenges to Detective Fisch er's statements in his affidavit concerning the informant' s reliab ility and credibility simply do not undermine the probable caus e finding. Hence, the district court did not commit plain error tha t affect ed Gibson's substantial rights by not sua sponte challenging th e existence of probable cause to issue the search warrant. Gibson al so challenges the district court's denial of his motion to suppress. He argues that the search warrant was stale because probabl e cause dissipated during a

## -5-

four-day delay in executing the warrant. The district court denied th e motion to suppress, concluding that the warrant was not stale or lacking in probable cause at the time of the search. We affirm the denial of a motion to suppress unless (1) the decision rests on clearly erroneou s finding s of fact, (2) the decision is based on an erroneous view of th e applicable law, or (3 ) the record as a whole leaves the court with a firm and definite conviction that a mistake has been made. See United States

v. LaMorie , 100 F.3d 547, 552 (8th Cir. 1996); Johnson , 78 F.3d at 1261. "Probable cause is a fair probabilit y that contraband or evidence of a crime will be found in the location to be searched." LaMorie , 100 F.3d at 552. We determine probable cause "under a totality-of-the-circumstance s approach." Id. at 55 3. A delay in executing a search warrant may render stale the probable cause finding. United States v. Maxim , 55 F.3d 394, 39 7 (8th Cir.), cert. denied , 116 S. Ct. 265 (1995). Important factors t o consider in determining whether probable cause has dissipated, rendering the warrant fatally stale, include the lapse of time since the warrant was issued, th e nature of the criminal activity, and the kind of propert y subject to the search. Id. See also United Sta tes v. Rugh , 968 F.2d 750, 754 (8th Cir. 1992). The warrant in this case was issued on February 10, 1994. Its terms spec ifically commanded the police officers "to make immediate search, " (Appellant's Adden. B at 2), but Detective Fischer chose not to execute th e warrant until four days later. At the suppression hearing, Detectiv e Fisher explained that he waited four days to provide some protection for the identity and safety of the informant. To make certain that there stil l woul d be controlled substances in the apartment when the warrant wa s executed, Detective Fischer asked the informant to notify him if ther e appeared to be any increase or decrease in traffic to and from Gibson' s apartment. Detective Fischer testified that the traffic flow at Gibson's apartm ent would indicate the presence of controlled substances and dru g traffic king activity. The district court denied Gibson's suppressio n motion, finding that although there was no evidence here of a large-scale drug operation, the police had information available to them indicating on

going drug activity

## Although not controlling here, we note that under Iowa Code § 808.8, a search 2



## war rant must be returned within 10 days from its date, and a failure to execute th e warrant within those 10 days voids the warrant.
-6- at Gibson's apartment. The district court concl uded that the confidential informant's statements about drug trafficking activity at the apartment an d the traffic in and out of the apartment were sufficiently indicative o f continued drug dealing to provide probable cause at the time the warrant was issued.

Viewing the totality of the circumstances, we conclude that th e district court's findings of fact are not clearly erroneous and that the

cou rt did not apply an erroneous view of the applicable law. Becaus e continuing criminal activity was suspected and corroborated, probable caus e did not dissipate in the four days that lapsed between the time the state

cou rt issued the warrant and its execution. "Where continuing crimina l activity is suspected, the passage of time is le ss significant." LaMorie , 100 F.3d at 554. Thus, the district court did not clearly err in denying Gibson's motion to suppress. 2 Finally, Gibson contends that his conviction is not supported b y evidence sufficient to establish his identity as the seller during th e controlled drug transaction or to establish that he was the owner of the cocaine found in his bedroom. When considering whether the evidence i s sufficient to sustain a guilty verdict, "we view the evidence in the light most favorable to the government, giving the gov ernment the benefit of all reasonable inferences." United States v.Herron , 97 F.3d 234, 236 (8t h Cir. 1996), cert. denied , 117 S. Ct. 998 (1997). We reverse only "if no reasonable jury could have found the defendant guilty beyond a reasonable doubt." United States v.Taylor , 82 F.3d 200, 201 (1996) (interna l quotations omitted). The evidence admitted at trial included Detective Fischer's tes timony that he accompanied the police informant to Gibs on's apartment on February 8, 1994, that the informant had no controlled su bstances in his possession when he went into Gibson's

## -7-

apartm ent, and that the informant returned from Gibson's apartment wit h .243 grams of cocaine, stating that he had purchased it from Gibson

. Detective Fisher also indicated that cocaine was found in Gibson's bedroom

. A reasonable jury als o could have believed the informant's testimony that he had previously pur chased cocaine from Gibson at Gibson's apartment and that i t was Gibson who sold him cocaine during the February 8, 1994 , controlled transaction. The defendant had the opportunity to discredit th e informant's testimony at trial, and the jury had the sole responsibility to determine the credibility of the informant's testimony. On appeal , "decisions concerning witness credibility 'are to be resolved in favor of the jury's verdict.'" United States v.Dolan , 1997 WL 411791 at *11 (8th Cir. July 24, 1997) (quoting United States v. Smith , 104 F.3d 145, 147 (8t h Cir. 1997)). We decline to disturb the jury's credibility findings. We conclude that there was sufficient evidence from which a reasonable jury could fin d Gibson guilty beyond a reasonable doubt on each count of th e indictment.

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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