                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1226
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Thomas Caswell,                         *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: November 14, 2005
                                Filed: February 3, 2006
                                 ___________

Before SMITH, HEANEY, and BENTON, Circuit Judges.
                            ___________

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


      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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

                                         -2-
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.



                                         -3-
                                      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


      2
        Caswell does not challenge the validity of the search of his vehicle incident
to his arrest.

                                          -4-
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)).

                                           -5-
        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

                                          -6-
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

                                         -7-
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
                       ______________________________




      3
       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.

                                          -8-
