                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 04-4391



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

           versus


ALEJANDRO CISNEROS-MAYORAL,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-225)


Argued:   February 2, 2005                  Decided:   March 29, 2005


Before WILKINSON and KING, Circuit Judges, and Samuel G. WILSON,
United States District Judge for the Western District of Virginia,
sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Eric David Placke, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina,
for Appellant.    Angela Hewlett Miller, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee. ON BRIEF: Louis C. Allen, III, Federal
Public Defender, Greensboro, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

       Appellant   challenges    the   district     court’s    application    of

United States v. Leon, 468 U.S. 897 (1984), to render admissible

evidence seized pursuant to a search warrant whose validity on

probable cause grounds was later called into doubt.                 We find no

error in the district court’s application of Leon and accordingly

affirm.



                                       I.

       On May 22, 2003, state police officers searched the residence

of appellant Alejandro Cisneros-Mayoral in Winston-Salem, North

Carolina.     Their search was conducted pursuant to a warrant that

had   been   issued   by   a   magistrate   earlier    that    day.     In   the

application for that warrant, a detective with the Winston-Salem

Police Department had recounted the events that had cast suspicion

on    appellant.      “During   the    month   of   May,”     the   application

explained, a “confidential informant” had told the detective that

appellant was selling drugs from his home.               The detective had

visited Cisneros-Mayoral’s abode to investigate the tip.                At the

front door, the detective “smelled a strong odor of freshly cut

marijuana coming from the residence.”          He detected the same smell

within the apartment after appellant allowed him to enter.                   The

detective was familiar with the odor, the application stated,

because of his extensive police experience.                   The application


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neglected to specify which day in May the visit to Cisneros-

Mayoral’s residence had occurred.    It also failed to mention that,

shortly before seeking the warrant, the detective had returned to

the residence and once more detected the odor of marijuana.

     During the search, officers recovered two firearms, one of

which had its serial number removed.     Appellant admitted that the

weapons belonged to him. When pressed about his immigration status

later in the investigation, Cisneros-Mayoral conceded to a federal

agent that he was present in the United States illegally.

     Appellant was indicted for possession of firearms as an

illegal alien, see 18 U.S.C § 922(g)(5) (2000), and possession of

a firearm from which the manufacturer’s serial number had been

removed, see § 922(k).   He moved to suppress the evidence seized

during the search on Fourth Amendment grounds.    The district court

denied this motion and appellant entered a conditional guilty plea

on the first count, reserving the right to appeal the suppression

issue.   Cisneros-Mayoral now appeals.



                               II.

     The district court concluded that, even if the search were

unsupported by probable cause, the officers’ reliance on the

warrant satisfied the good-faith standard of United States v. Leon,

468 U.S. 897 (1984).   We review this application of Leon de novo.

See United States v. DeQuasie, 373 F.3d 509, 520 (4th Cir. 2004).


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     Under Leon, the fruits of a search conducted pursuant to a

warrant -- even a warrant later deemed unsupported by probable

cause -- may not be suppressed unless “a reasonably well trained

police officer would have known that the search was illegal despite

the magistrate’s authorization.”         Leon, 468 U.S. at 922 n.23.        An

officer “will have no reasonable grounds for believing that the

warrant was properly issued,” however, and the fruits of the search

will remain subject to suppression, under four conditions that the

Leon Court described:

          (1) “the magistrate . . . was misled by information
     in an affidavit that the affiant knew was false or would
     have known was false except for his reckless disregard of
     the truth”;

          (2) the magistrate acted as a rubber stamp for the
     officer and thus “wholly abandoned” his detached and
     neutral “judicial role”;

          (3) the affidavit is “so lacking in indicia of
     probable cause as to render official belief in its
     existence entirely unreasonable”; or

          (4) the warrant is “so facially deficient -- i.e.,
     in failing to particularize the place to be searched or
     the things to be seized -- that the executing officers
     cannot reasonably presume it to be valid.”


Id. at 923 (citations omitted); United States v. Bynum, 293 F.3d

192, 195 (4th Cir. 2002).        The foregoing rubric recognizes that,

because   judicial    officers   have    “no   stake   in   the   outcome   of

particular criminal prosecutions,” the prospect of exclusion of

evidence “cannot be expected significantly to deter them.”             Leon,

468 U.S. at 917.     By creating a safe harbor for warranted searches,

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subject to the four enumerated exceptions, Leon promotes law

enforcement’s    reliance     on    the      warrant     process    and   avoids

“[p]enalizing the officer for the magistrate’s error.” Id. at 921.

     It is undisputed that the search at issue here occurred

pursuant to a duly issued warrant.           The fruits of that search will

therefore   be   admissible    under        Leon   unless   one    of   the    four

exceptions described in the case applies.              Appellant concedes that

the first exception is inapplicable because there is no indication

that the investigating detective included any falsehoods in the

warrant application.    Appellant contends that the remaining three

exceptions set forth in Leon do apply, however, and that the search

of his residence was accordingly improper.

     Appellant’s    reliance       on   Leon’s     fourth   exception,        which

concerns a warrant’s facial characteristics, is misplaced.                      In

applying that exception, courts have looked to whether the warrant

provided the executing officer with sufficient indication of the

task required of him.       See United States v. Towne, 997 F.2d 537,

549 (9th Cir. 1993).        Here, the warrant and attached affidavit

plainly identify the place to be searched -- appellant’s residence

-- and the items sought -- marijuana and associated paraphernalia;

indeed, appellant does not claim otherwise.

     Cisneros-Mayoral’s reliance on Leon’s two remaining exceptions

is similarly unavailing.       Warrants based on uncorroborated tips

from “unknown, unavailable” informants,            United States v. Wilhelm,


                                        6
80 F.3d 116, 123 (4th Cir. 1996), may be “so lacking in indicia of

probable cause as to render official belief in its existence

entirely     unreasonable.” Leon, 468 U.S. at 923 (citation omitted).

But   here   the   investigating   detective   followed   up   the   tip   by

visiting Cisneros-Mayoral’s apartment.         His detection of the odor

of marijuana there only corroborated the informant’s allegation

that appellant was using his residence to traffic in narcotics.

And the detective’s provision of this information to the magistrate

elevated the warrant application beyond the “bare bones” status

that we have previously condemned, see Wilhelm, 80 F.3d at 121, and

supplied the issuing magistrate with adequate information to make

a probable cause determination.       Indeed, other courts have deemed

drug odor sufficiently indicative of criminal activity to support

probable cause.      See, e.g., United States v. Sweeney, 688 F.2d

1131, 1137-38 (7th Cir. 1982).       Mindful of this precedent, we can

hardly conclude that the warrant application was “so lacking in

indicia of probable cause as to render official belief in its

existence entirely unreasonable.”        Leon, 468 U.S. at 923 (citation

omitted).

      Further, there is no indication that the magistrate neglected

his proper role as a “detached and neutral” arbiter by acting as a

rubber stamp for the police’s request.         Id. at 921.     Rather, the

magistrate properly performed his function in the investigative

process by assessing the evidence before him and determining


                                     7
probable cause to the best of his ability.         Thus, even if we apply

hindsight to render this determination incorrect, Leon requires

that the fruits of the ensuing search remain admissible.

     Appellant protests that, because the application failed to

specify the particular date in May of the first visit to his

residence, good faith reliance under Leon should be disallowed.

However, even if we assume that this visit occurred on the first

day of the month, the passage of some three weeks between the visit

and the issuance of the warrant would not necessarily render the

information gained during this visit stale.           We have emphasized

that “[t]he vitality of 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.”           United States

v. McCall, 740 F.2d 1331, 1336 (4th Cir. 1984) (quoting United

States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972)).              And we

have joined several other courts in emphasizing that findings of

staleness become less appropriate when the instrumentalities of the

alleged illegality tend to be retained, see United States v.

Farmer, 370 F.3d 435, 439-40 (4th Cir. 2004), as they do in drug

trafficking.

     Thus,   the   district   court   may   well   have   been   correct   to

conclude that the warrant application would have supported probable

cause had the date of the first visit to appellant’s residence been

specified.   At least we cannot conclude that it would be “entirely


                                      8
unreasonable” for the investigating officers to infer the probable

presence of drugs and paraphernalia in appellant’s apartment from

the detective’s visit earlier in the month, even if that visit is

deemed to have occurred three weeks prior.        In the absence of such

a conclusion, however, Leon requires that the fruits of the ensuing

search remain admissible.    See 468 U.S. at 923.

     Finally, Cisneros-Mayoral urges us to fault the detective for

neglecting to mention that he had returned to the residence on the

same day he sought a warrant and again detected the smell of

marijuana.     But we have already held that, when an affidavit

otherwise satisfies Leon, “a court should not refuse to apply the

Leon good faith exception just because the officer fails to include

in [the] affidavit all of the information known to him supporting a

finding   of   probable   cause.”        Bynum,   293   F.3d   at     198-99.

Appellant’s argument must therefore fail.



                                III.

     For the foregoing reasons, we find no error in the district

court’s application of Leon.*       The judgment of the district court

is therefore

                                                                    AFFIRMED.




     *
      We therefore find it unnecessary to address appellant’s
contention that his admissions to the investigating officers were
fruits of the poisonous tree.

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