                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         DEC 23 2004
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 04-7056
          v.                                     (D.C. No. CR-03-117-WH)
 CORNELIUS CARPENTER,                                 (N.D. Oklahoma)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, McKAY, and HARTZ, Circuit Judges.


      Defendant Cornelius Carpenter was convicted on one count of distribution

of cocaine and one count of possession with intent to distribute cocaine. He

appeals the district court’s denial of his motion to suppress the evidence obtained

as a result of a warrant issued to search his house. We have jurisdiction under 28

U.S.C. § 1291 and affirm.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.   This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
I. BACKGROUND

      Defendant was the subject of an undercover drug-enforcement operation

involving Agent Johnson of the Wagoner County, Oklahoma, District Attorney’s

office. On August 14, 2003, Johnson accompanied R.D.B., an informant, to

Defendant’s house and after being introduced to the Defendant by R.D.B.,

personally purchased .92 grams of cocaine base from Defendant. On

September 4, 2003, Byron Robinson, after being arrested for selling drugs, told

Johnson that Defendant was selling crack cocaine. The next day, Johnson

obtained a search warrant for Defendant’s residence. The affidavit supporting the

warrant alleged that Robinson had informed Johnson that he had seen Defendant

sell crack cocaine and believed Defendant kept the drugs in a pill bottle. It

further stated that Johnson had personally negotiated a drug sale with Defendant:

      Cornelius came from the residence directly to where I was at to talk
      with me about the drug sale. I gave Cornelius Carpenter one hundred
      dollars and in return he gave me a rock substance identified by him
      as crack cocaine. . . . I submitted the substance I purchased from
      Cornelius to the O.S.B.I. lab and it tested positive for the presence of
      cocaine.

Aplt. Br., App. at 27. During the search of Defendant’s residence, law

enforcement officers seized 9.48 grams of cocaine and five firearms.

      In a pretrial motion to suppress the evidence procured in the search,

Defendant argued that the warrant was not supported by probable cause and that

the information in the affidavit was stale. The magistrate judge denied the motion,

                                         -2-
concluding that the affidavit established “a substantial basis for determining that

there was a fair probability that contraband or evidence of criminal activity would

be found in Defendant’s residence,” based on Johnson’s purchase of cocaine from

Defendant near his residence. Id. at 30. The magistrate judge further concluded

that the information was not stale because the passage of 22 days from the time of

the purchase until the date of the warrant was not unreasonable. The district court

adopted the magistrate judge’s findings. Defendant now appeals the denial of his

motion to suppress.

II. DISCUSSION

      A judge's task in assessing whether probable cause exists to issue a search

warrant

      is simply to 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.

Illinois v. Gates, 462 U.S. 213, 238 (1983). “[A] magistrate judge's decision to

issue a warrant is entitled to great deference from the reviewing court.

Accordingly, we need only ask whether, under the totality of the circumstances

presented in the affidavit, the magistrate judge had a substantial basis for

determining that probable cause existed.” United States v. Tuter, 240 F.3d 1292,

1295 (10th Cir. 2001) (internal citations and quotation marks omitted); see also


                                          -3-
Gates, 462 U.S. at 238-39. Probable cause exists when the affidavit “sets forth

facts that would lead a prudent person to believe there is a fair probability that

contraband or evidence of a crime will be found in a particular place.”

United States v. Basham, 268 F.3d 1199, 1203 (10th Cir. 2001), cert. denied, 535

U.S. 945 (2002). When reviewing the district court's denial of a motion to

suppress, we view the evidence in the light most favorable to the government and

accept the district court's findings of fact unless they are clearly erroneous. Id.

But the ultimate determination of reasonableness under the Fourth Amendment is

reviewed de novo. Id.

      Defendant now argues that the affidavit was insufficient to supply probable

cause because it did not provide any indicia of informant reliability. But

Defendant disregards the officer’s statement that he directly purchased cocaine

from Defendant. That an officer purchased drugs from the suspect is itself

sufficient probable cause to support a warrant independent of the informant’s

allegations. Cf. United States v. Artez, 389 F.3d 1106, 1115 (10th Cir. 2004)

(probable cause shown by affidavit recounting two controlled buys through an

unwitting informant and officer surveillance corroborating confidential

informant’s tip that Defendant sold methamphetamine).

      Defendant alludes to inconsistencies between Johnson’s statement in his

affidavit that he had personally purchased cocaine from Defendant and the


                                          -4-
informant’s testimony at trial that Johnson had remained in the car while he went

into Defendant’s residence to make the purchase. But there is no indication in the

appellate record (and no allegation in Defendant’s brief) that Defendant argued in

district court that Johnson’s statement about his purchase from Defendant should

be disregarded on the ground that it was intentionally or recklessly false. See

Franks v. Delaware, 438 U.S. 154 (1978). We therefore need not address whether

the affidavit would suffice without that statement. See United States v. Abdenbi,

361 F.3d 1282, 1289 (10th Cir. 2004) (“The well-settled law of this circuit is that

issues not raised in district court may not be raised for the first time on appeal.”).

      Accordingly, we AFFIRM the district court’s denial of Defendant’s motion

to suppress.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




                                           -5-
