                        United States Court of Appeals
                               FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 96-3667
                                    ___________
United States of America,                *
                                         *
            Plaintiff-Appellee,          *   Appeal from the United States
                                         *   District Court for the
     v.                                  *   Northern District of Iowa.
                                         *
Mack R. Gibson,                          *
                                         *
            Defendant-Appellant.         *
                                         *

                                   ___________

                          Submitted:   April 14, 1997
                                           Filed: September 4, 1997
                                   ___________

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.
                               ___________

HANSEN, Circuit Judge.

      In this direct criminal appeal, Mack R. Gibson appeals the
sufficiency of the evidence to sustain his controlled substances
convictions and the district court's1 denial of his motion to suppress
evidence seized from his apartment. We affirm.




      1
      The Honorable Michael J. Melloy, Chief Judge, United States District Court for
the Northern District of Iowa.
      Mack R. Gibson (Gibson), a 61-year-old repeat drug offender, lived
in an apartment in Cedar Rapids, Iowa, with his teenage nephew, William M.
Gibson, also known as "Little Mack." An informant contacted the Cedar
Rapids Police Department, alleging that Mack Gibson was engaging in the
distribution of cocaine. The informant had purchased cocaine from Gibson
on numerous previous occasions.     He stated that he had also received
cocaine from Little Mack at Gibson's apartment. On February 8, 1994, the
police met with the informant, who arranged to purchase cocaine at Gibson's
apartment later that day. The police searched the informant to be certain
he did not possess any cocaine and provided him with $100. As planned, the
police watched the informant enter Gibson's apartment with $100 and return
with .243 grams of cocaine, which he reported purchasing from Mack Gibson.
Police observed the transaction from outside, but no devices were used to
record the conversation or to otherwise monitor the transaction.

      On the basis of this information, Detective Mark Fischer of the Cedar
Rapids Police Department submitted an application for a search warrant to
the Iowa state district court. The warrant issued on February 10, 1994.
Four days later, on February 14, 1994, Detective Fischer executed the
warrant and found two bags of cocaine in Gibson's bedroom. Subsequently,
the government indicted Gibson on one count of distribution of cocaine and
one count of possession with intent to distribute cocaine, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (1994).

      Before trial, Gibson filed a motion to suppress the evidence seized
during the search. Gibson contended that the police officers unreasonably
delayed executing the warrant such that probable cause had dissipated by
the time the warrant was executed. Gibson did not contend that no probable
cause existed to issue the warrant in the first instance. The district
court denied the motion to suppress, finding that the four-day delay in
executing the warrant did not render it stale.




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      The case proceeded to trial.        Detective Fischer, the police
informant, and several other persons testified at trial concerning Gibson's
drug possession and drug trafficking activities. The jury convicted Gibson
on both counts of the indictment.      Gibson now appeals, alleging that
probable cause did not exist to justify issuing the search warrant in the
first instance, that the finding of probable cause was stale by the time
the warrant was executed, and that the evidence was not sufficient to
support his convictions.
      We first address Gibson's contention that the search was unlawful
because the warrant-issuing state court erroneously found the existence of
probable cause. Gibson correctly acknowledges that he did not raise this
issue before the federal district court in his motion to suppress. Thus,
we review only for plain error. See United States v. Olano, 507 U.S. 725,
735-36 (1993). "'Plain error occurs if (1) there is an error, (2) the
error is obvious, and (3) the error affects a defendant's substantial
rights.'"   United States v. Guerra, 113 F.3d 809, 816 (8th Cir. 1997)
(quoting United States v. Hill, 91 F.3d 1064, 1072 (8th Cir. 1996)). To
affect a defendant's substantial rights, the error must have prejudicially
influenced the outcome of the proceedings below. Id.    See Olano, 507 U.S.
at 734.
      Gibson contends that there was no probable cause to support the
issuance of the warrant. In support of this argument, Gibson contends
that the search warrant application, prepared by Detective Fischer,
represented to the court that the informant had a reputation for
truthfulness without first investigating to determine whether the informant
in fact had a reputation for truthfulness. Also, Gibson contends that
Detective Fischer misled the issuing judge concerning the informant's
reliability by checking a box on the search warrant application form which
indicated that the informant had not given false information in the past.
In reality, this informant had never provided any information at all in the
past.
      A presumption of validity accompanies the affidavit supporting a
search warrant. Franks v. Delaware, 438 U.S. 154, 171 (1978). A district
court is not required to hold




                                    -3-
a hearing for the purpose of determining the veracity of the affiant unless
the defendant makes a "substantial preliminary showing of a false or
reckless false statement or omission" and demonstrates that "the alleged
false statement or omission was necessary to a finding of probable cause."
United States v. Hiveley, 61 F.3d 1358, 1360 (8th Cir. 1995) (internal
quotations omitted). See Franks, 438 U.S. at 171-72. Mere negligence on
the part of law enforcement officers will not suffice. Franks, 438 U.S.
at 170. Furthermore, "[w]here the informant['s] information is at least
partially corroborated, attacks upon credibility and reliability are not
crucial to the finding of probable cause." United States v. Humphreys, 982
F.2d 254, 259 (8th Cir. 1992), cert. denied, 510 U.S. 814 (1993).

      Gibson has not demonstrated that Detective Fischer's statements in
his affidavit were either false or a reckless omission of relevant
information. See United States v. Johnson, 78 F.3d 1258, 1262 (8th Cir.)
(holding an officer's assertion that the informant has not given false
information in the past, where in fact the informant has never provided any
information, does not amount to a false statement or a statement made with
reckless disregard), cert. denied, 117 S. Ct. 227 (1996). Furthermore,
neither of Gibson's allegations calls into doubt the existence of probable
cause to issue the search warrant in this case.        The informant here
notified the police that Gibson was one of his sources for cocaine, and the
police corroborated this information by arranging a cocaine transaction
with the informant that took place at Gibson's apartment.       The police
officer's observation of this transaction was sufficient to establish
probable cause to search the apartment. Gibson's challenges to Detective
Fischer's statements in his affidavit concerning the informant's
reliability and credibility simply do not undermine the probable cause
finding.    Hence, the district court did not commit plain error that
affected Gibson's substantial rights by not sua sponte challenging the
existence of probable cause to issue the search warrant.
      Gibson also challenges the district court's denial of his motion to
suppress. He argues that the search warrant was stale because probable
cause dissipated during a




                                    -4-
four-day delay in executing the warrant. The district court denied the
motion to suppress, concluding that the warrant was not stale or lacking
in probable cause at the time of the search. We affirm the denial of a
motion to suppress unless (1) the decision rests on clearly erroneous
findings of fact, (2) the decision is based on an erroneous view of the
applicable law, or (3) the record as a whole leaves the court with a firm
and definite conviction that a mistake has been made. See United States
v. LaMorie, 100 F.3d 547, 552 (8th Cir. 1996); Johnson, 78 F.3d at 1261.
      "Probable cause is a fair probability that contraband or evidence of
a crime will be found in the location to be searched." LaMorie, 100 F.3d
at 552. We determine probable cause "under a totality-of-the-circumstances
approach." Id. at 553. A delay in executing a search warrant may render
stale the probable cause finding. United States v. Maxim, 55 F.3d 394, 397
(8th Cir.), cert. denied, 116 S. Ct. 265 (1995). Important factors to
consider in determining whether probable cause has dissipated, rendering
the warrant fatally stale, include the lapse of time since the warrant was
issued, the nature of the criminal activity, and the kind of property
subject to the search. Id. See also United States v. Rugh, 968 F.2d 750,
754 (8th Cir. 1992).
      The warrant in this case was issued on February 10, 1994. Its terms
specifically commanded the police officers "to make immediate search,"
(Appellant's Adden. B at 2), but Detective Fischer chose not to execute the
warrant until four days later.      At the suppression hearing, Detective
Fisher explained that he waited four days to provide some protection for
the identity and safety of the informant. To make certain that there still
would be controlled substances in the apartment when the warrant was
executed, Detective Fischer asked the informant to notify him if there
appeared to be any increase or decrease in traffic to and from Gibson's
apartment. Detective Fischer testified that the traffic flow at Gibson's
apartment would indicate the presence of controlled substances and drug
trafficking activity.     The district court denied Gibson's suppression
motion, finding that although there was no evidence here of a large-scale
drug operation, the police had information available to them indicating on-
going drug activity




                                    -5-
at Gibson's apartment. The district court concluded that the confidential
informant's statements about drug trafficking activity at the apartment and
the traffic in and out of the apartment were sufficiently indicative of
continued drug dealing to provide probable cause at the time the warrant
was issued.

      Viewing the totality of the circumstances, we conclude that the
district court's findings of fact are not clearly erroneous and that the
court did not apply an erroneous view of the applicable law.        Because
continuing criminal activity was suspected and corroborated, probable cause
did not dissipate in the four days that lapsed between the time the state
court issued the warrant and its execution. "Where continuing criminal
activity is suspected, the passage of time is less significant." LaMorie,
100 F.3d at 554. Thus, the district court did not clearly err in denying
Gibson's motion to suppress.2
      Finally, Gibson contends that his conviction is not supported by
evidence sufficient to establish his identity as the seller during the
controlled drug transaction or to establish that he was the owner of the
cocaine found in his bedroom. When considering whether the evidence is
sufficient to sustain a guilty verdict, "we view the evidence in the light
most favorable to the government, giving the government the benefit of all
reasonable inferences." United States v.Herron, 97 F.3d 234, 236 (8th
Cir. 1996), cert. denied, 117 S. Ct. 998 (1997). We reverse only "if no
reasonable jury could have found the defendant guilty beyond a reasonable
doubt."    United States v.Taylor, 82 F.3d 200, 201 (1996) (internal
quotations omitted).
      The evidence admitted at trial included Detective Fischer's testimony
that he accompanied the police informant to Gibson's apartment on February
8, 1994, that the informant had no controlled substances in his possession
when he went into Gibson's




      2
      Although not controlling here, we note that under Iowa Code § 808.8, a search
warrant must be returned within 10 days from its date, and a failure to execute the
warrant within those 10 days voids the warrant.

                                        -6-
apartment, and that the informant returned from Gibson's apartment with
.243 grams of cocaine, stating that he had purchased it from Gibson.
Detective Fisher also indicated that cocaine was found in Gibson's bedroom.
A reasonable jury also could have believed the informant's testimony that
he had previously purchased cocaine from Gibson at Gibson's apartment and
that it was Gibson who sold him cocaine during the February 8, 1994,
controlled transaction. The defendant had the opportunity to discredit the
informant's testimony at trial, and the jury had the sole responsibility
to determine the credibility of the informant's testimony. On appeal,
"decisions concerning witness credibility 'are to be resolved in favor of
the jury's verdict.'" United States v.Dolan, 1997 WL 411791 at *11 (8th
Cir. July 24, 1997) (quoting United States v. Smith, 104 F.3d 145, 147 (8th
Cir. 1997)). We decline to disturb the jury's credibility findings. We
conclude that there was sufficient evidence from which a reasonable jury
could find Gibson guilty beyond a reasonable doubt on each count of the
indictment.

     Accordingly, we affirm the judgment of the district court.

     A true copy.


           Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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