* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-50731

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RANDY STEWART,

Defendant-Appellant.

_______________________________________________________

Appeal from the United States District Court for

the Western District of Texas

(A-92-CR-120)

_______________________________________________________

January 17, 1997

Before POLITZ, Chief Judge, REAVLEY and DENNIS, Circuit Judges.

PER CURIAM:*

The district court’s judgment is affirmed for the following

reasons:

1. Stewart attempts to raise issues that he could

have raised but failed to do so on his prior appeal. These

arguments will not be considered. See Paul v. United
2

States, 734 F.2d 1064, 1066 (5th Cir. 1984); United States

v. Wright, 716 F.2d 549, 550 (9th Cir. 1983).

2. The question we do face is the admissibility of

the evidence from the search of Stewart’s home and the

denial of his motion to suppress that evidence. The

officers conducted the search upon authority of a warrant,

but Stewart argues that the warrant was issued without

probable cause and upon only a “bare-bones” affidavit. With

or without probable cause, officers may execute a

magistrate’s warrant unless the magistrate was misled by

false information, or the magistrate abandoned the judicial

role, or the warrant was so deficient that the officers

could not reasonably presume it to be valid, or where the

warrant is based upon an affidavit “so lacking in indicia of

probable cause as to render official belief in its existence

entirely unreasonable.” United States v. Leon, 468 U.S.

897, 923, 104 S.Ct. 3405, 3421 (1984).

The question here, then, is whether the affidavit was

so deficient as to make a belief that it supported probable

cause entirely unreasonable. It was not so deficient. And

it contained more than conclusions. It informed the

magistrate as follows:

a. Stewart had a prior conviction for

manufacturing methamphetamine.
3

b. A co-conspirator in the Pierce

methamphetamine manufacturing and distribution

organization informed the affiant that Stewart was

acting as advisor to methamphetamine cooking

operations. That informant had given the affiant

information on numerous other occasions, information

corroborated by the affiant.

c. Stewart’s vehicle was observed at Pierce’s

residence and the two of them were seen moving a baby

crib into Stewart’s vehicle and a box into Pierce’s

truck. The officers, upon a warrant then obtained,

searched the truck and found phenylacetic acid in the

box with Stewart’s fingerprints on the box.

d. The affiant, experienced as a DEA agent,

stated that upon his experience and the information in

the affidavit, he concluded that there was probable

cause to believe that certain materials used in the

manufacture and distribution of controlled substances

would be found at Stewart’s home.

Judge Sam Sparks carefully considered the arguments

made against the sufficiency of this affidavit and explained

why he upheld the search of the home:

In this case, because Stewart is alleged to

be an advisor to those who actually

manufacture methamphetamine, rather than a

direct participant in that process, there is

a very good argument that probable cause
4

existed to search his home for these items

despite lack of specific evidence of a nexus

between the house and criminal activity. One

would expect Stewart to operate out of a

location other than the various places where

those he is suspected of advising manufacture

methamphetamine. Furthermore, even if

Stewart’s only participation was in

connection with the operation involving his

codefendants in this case, the location where

the actual manufacturing was thought to have

taken place had already been searched. 

Because no records connecting Stewart with

the manufacture of, or distribution of,

methamphetamine were found at these other

locations and because of Stewart’s alleged

unusual role as advisor, the Court finds that

the facts in the affidavit did establish

probable cause to search Stewart’s residence.

Whether probable cause existed or not, it cannot be

said that the magistrate’s decision that it did exist was

entirely unreasonable.

AFFIRMED.