           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 9, 2009
                                     No. 08-50919
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

KENNETH WAYNE LEWIS

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 6:08-CR-70-ALL


Before KING, GARWOOD and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Kenneth Wayne Lewis was convicted of possession with intent to
distribute at least five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(iii).   Lewis challenges the district court’s denial of his motion to
suppress and the sufficiency of the evidence to support his conviction.
       Lewis argues that the magistrate judge could not determine from the
affidavit in support of the search warrant whether or not the information from
the confidential informant or about the controlled buys was stale and, thus,

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                      No. 08-50919

could not find probable cause to issue a search warrant for his apartment. He
argues that the search warrant was in this respect so lacking in probable cause
that no reasonable officer could have relied on it in good faith.
       The Government argues that Lewis waived review of this issue by not
raising it in his motion to suppress. Our review of the record shows that Lewis
did not raise this specific argument in his motion to suppress, nor did the district
court (or the government below) address any such issue (nor does Lewis raise on
appeal the only issue he raised in his motion to suppress below). Accordingly,
Lewis has waived this issue for appeal. See United States v. Pope, 467 F.3d 912,
917-20 (5th Cir. 2006); see also United States v. Chavez-Valencia, 116 F.3d 127,
129 (5th Cir. 1997).
       Even if we were to regard Lewis’s argument as merely forfeited rather
than waived, and hence reviewable for “plain error”, rather than not being
reviewable on appeal at all, we would find no “plain error.”1 See Pope at 919,
n.20; United States v. Maldonado, 42 F.3d 906 (5th Cir. 1995) at 912 n.9
(government did not contend issue was not raised below) , 912-13 (reviewing for
plain error); Chavez-Valencia at 130-31 (where motion to suppress not filed
below, challenge to vehicle stop is waived and cannot be considered on appeal);
United States v. Carreon-Palacio, 267 F.3d 381, 389 (5th Cir. 2001) (particular
issue not raised below in connection with suppression claim not considered on
appeal because not raised below); United States v. Baker, 538 F.3d 324 (5th Cir.
2008) at 328-29 (not resolving whether waiver or forfeiture controls as to
arguments not raised in a motion to suppress but in any event holding any error
was not plain); United States v. Harrelson, 705 F.2d 733, 738 (5th Cir. 1983)
(“Failure to move pre-trial for suppression, or to assert a particular ground in
the suppression motion, operates as a waiver unless the district court grants



       1
        The government argues, alternatively to its waiver argument, that the district court
did not err in overruling the motion to suppress.

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relief for good cause shown”). See also United States v. Mena,248 F.3d 1138 (5th
Cir. 2001) (unpublished), 2001 WL 85818 (apparently applying waiver, rather
than forfeiture, and noting that in Maldonado the government did not assert
that the issue was not raised below).
      As we said in Maldonado, “we must be mindful to give sufficient weight
to the ‘plain’ element of plain error analysis,” which requires that the error be
“‘clear’ or ‘obvious’,” id. at 912 n.10, to such an extent that the error is “so
conspicuous that the trial judge and prosecutor were derelict in countenancing”
it despite the lack of defense assistance in detecting the particular deficiency.
Id. at 912, quoting United States v. Calverley, 37 F.3d 160, 163 (5th Cir. 1994)
(en banc).
      Lewis’s claim (not raised below) is that the affidavit of the searching
officer, the only basis on which the warrant was issued, does not state sufficient
facts to allow the magistrate to determine whether or not the underlying
information relied on was stale, and for that reason does not support the issuing
magistrate’s determination of probable cause, with the result that the fruits of
the search must be suppressed. However, under United States v. Leon, 104 S.Ct.
3405 (1984), evidence is normally not suppressed where the search is made in
good faith reliance on a warrant, “even though the affidavit on which the
warrant was based was insufficient to establish probable cause” and “[i]ssuance
of a warrant by a magistrate normally suffices to establish good faith on the part
of law enforcement officers who conduct a search pursuant to the warrant.”
United States v. Craig, 861 F.2d 818, 821 (5th Cir. 1988). There are some four
or five exceptions to this rule, id., the principal one of which relied on by Lewis
is where the search is pursuant to “a warrant based on an affidavit so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable.” Leon, at 3421 (internal quotation marks and citation omitted).




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       Here the affidavit states that the affiant is and has been for some eighteen
years a Waco police officer and is assigned to the Drug Enforcement Section and
includes the following:
       “Information received from the confidential informant was that the
       confidential informant was in the suspected premises within the last
       72 hours. The informant has seen Kenneth Wayne Lewis in
       possession of crack cocaine at the suspected premises. . . . During
       the course of this investigation Affiant has made several controlled
       buys of crack cocaine from Kenneth Lewis at the suspected
       premises. On all controlled buys the suspected substance was
       tested by Affiant using a field test kit, supplied by Waco Police
       department. This substance did test positive for presence of cocaine.
       On at least one of those occasions Kenneth Lewis went to the
       suspected vehicle to distribute the crack cocaine. Affiant found that
       the suspected vehicle is registered to Kenneth Lewis at the
       suspected premises. Affiant also found that the water service at the
       suspected premises is in Kenneth Lewis name.”
The “suspected vehicle” is defined in the affidavit as “a black 2008 Chevrolet
pickup” with Texas license plate 15P-YB5 (and a specified “vin” number).2
       The affidavit concludes by stating:
       “Based on all the foregoing facts, Affiant believes that there exists
       probable cause to believe that Kenneth Wayne Lewis, are [sic]
       knowingly and intentionally in possession of a controlled substance
       to wit: Cocaine at the premises described above and that . . . there
       further exists probable cause to believe that the items described
       above [cocaine and related paraphernalia and records] are being
       concealed at the suspected premises and on the curtilage and on the
       persons [sic] of Kenneth Wayne Lewis.”
       Given that deference is owed to the magistrate’s determination of probable
cause, United States v. McKeever, 5 F.3d 863, 865 (5th Cir. 1993), that search
warrant affidavits are “normally drafted by nonlawyers in the midst and haste
of a criminal investigation” and must be read “in a commonsense and realistic


       2
        The “suspected premises” is defined in the affidavit as the single residence garage
apartment at 2905A Lyle, Waco. The affidavit also includes information as to the reliability,
based on past experience, of the informant and the informant’s ability to identify crack
cocaine.

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                                  No. 08-50919

fashion,” United States v. Ventresca, 85 S.Ct. 741, 746 (1965), and given further
that the issue we now address is not whether the affidavit is sufficient to
establish probable cause, nor even whether it is “so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable” under
Leon, but is rather whether the district court’s failure to hold that the affidavit
is so lacking is not simply error but is “plain” error, we reject Lewis’s complaint
on appeal as to the search.
      We observe that a common sense reading of the affidavit suggests that it
was within seventy-two hours prior to execution of the affidavit on November 6,
2007, that the informant had seen Lewis in possession of cocaine at the
suspected premises. Moreover, that the affiant made several controlled buys at
the premises suggests an ongoing illegal activity as to which a greater length of
time is generally allowed prior to staleness. See, e.g., United States v. Tucker,
638 F.2d 1292, 1299 (5th Cir. 1981); McKeever at 866; Craig at 822-23 & n.7.
And, the affidavit also reflects that on one of the controlled buys Lewis got the
cocaine from the 2008 model Chevrolet pickup, which makes it highly likely that
that controlled buy occurred not earlier than sometime in October 2007.
Further, the affidavit says there is probable cause to believe that cocaine, and
drug records and paraphernalia, “are” – i.e. – now – being concealed on the
premises, and there is nothing in the affidavit to indicate that the information
therein is stale. See United States v. Thomas, 973 F.2d 1152, 1157 (5th Cir.
1992), citing United States v. Smith, 783 F.2d 648, 652 (6th Cir. 1986). We
accordingly conclude that the district court did not plainly err in failing to
suppress the search evidence on the ground that the warrant was based on an
affidavit that did not state sufficient facts to show that the information on which




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it relied was not stale and, for that reason, was so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable.3
       Lewis preserved for appeal his argument that the evidence was
insufficient to prove the “knowing” and “possession” elements of the offense of
conviction. See United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003); F ED.
R. C RIM. P. 29(a). The Government presented, inter alia, the following evidence
at trial. Lewis was the only one to pay rent on the apartment on Lyle Street and
paid it consistently; he was the only person seen at the apartment (except
possibly one or two plumbers on a service call); bills, drivers’ licenses, and
vehicles were in his name at the Lyle Street address; and numerous items of
Lewis’s personal property were found in the apartment with the drugs. This
evidence, viewed in the light most favorable to the guilty verdict, was sufficient
for the jury to infer that Lewis constructively and knowingly possessed the
drugs. See United States v. Hinojosa, 349 F.3d 200, 204 (5th Cir. 2003); United
States v. Onick, 889 F.2d 1425, 1430 (5th Cir. 1989).
                                        AFFIRMED




       3
        Lewis also seems to argue that in the affidavit the affiant intentionally, or recklessly,
misled the magistrate about staleness. There is absolutely no evidence to support this, and
the evidence at trial shows the investigation began in September or October 2007 and that the
information recited in the warrant was not stale. We also reject Lewis’s contention that the
Leon good faith rule does not apply where the warrant affiant participates in its execution.

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