IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50731
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDY STEWART,
Defendant-Appellant.
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Appeal from the United States District Court for
the Western District of Texas
(A-92-CR-120)
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January 17, 1997
Before POLITZ, Chief Judge, REAVLEY and DENNIS, Circuit Judges.
PER CURIAM:*
The district court’s judgment is affirmed for the following
reasons:
1. Stewart attempts to raise issues that he could
have raised but failed to do so on his prior appeal. These
arguments will not be considered. See Paul v. United
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
States, 734 F.2d 1064, 1066 (5th Cir. 1984); United States
v. Wright, 716 F.2d 549, 550 (9th Cir. 1983).
2. The question we do face is the admissibility of
the evidence from the search of Stewart’s home and the
denial of his motion to suppress that evidence. The
officers conducted the search upon authority of a warrant,
but Stewart argues that the warrant was issued without
probable cause and upon only a “bare-bones” affidavit. With
or without probable cause, officers may execute a
magistrate’s warrant unless the magistrate was misled by
false information, or the magistrate abandoned the judicial
role, or the warrant was so deficient that the officers
could not reasonably presume it to be valid, or where the
warrant is based upon an affidavit “so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable.” United States v. Leon, 468 U.S.
897, 923, 104 S.Ct. 3405, 3421 (1984).
The question here, then, is whether the affidavit was
so deficient as to make a belief that it supported probable
cause entirely unreasonable. It was not so deficient. And
it contained more than conclusions. It informed the
magistrate as follows:
a. Stewart had a prior conviction for
manufacturing methamphetamine.
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b. A co-conspirator in the Pierce
methamphetamine manufacturing and distribution
organization informed the affiant that Stewart was
acting as advisor to methamphetamine cooking
operations. That informant had given the affiant
information on numerous other occasions, information
corroborated by the affiant.
c. Stewart’s vehicle was observed at Pierce’s
residence and the two of them were seen moving a baby
crib into Stewart’s vehicle and a box into Pierce’s
truck. The officers, upon a warrant then obtained,
searched the truck and found phenylacetic acid in the
box with Stewart’s fingerprints on the box.
d. The affiant, experienced as a DEA agent,
stated that upon his experience and the information in
the affidavit, he concluded that there was probable
cause to believe that certain materials used in the
manufacture and distribution of controlled substances
would be found at Stewart’s home.
Judge Sam Sparks carefully considered the arguments
made against the sufficiency of this affidavit and explained
why he upheld the search of the home:
In this case, because Stewart is alleged to
be an advisor to those who actually
manufacture methamphetamine, rather than a
direct participant in that process, there is
a very good argument that probable cause
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existed to search his home for these items
despite lack of specific evidence of a nexus
between the house and criminal activity. One
would expect Stewart to operate out of a
location other than the various places where
those he is suspected of advising manufacture
methamphetamine. Furthermore, even if
Stewart’s only participation was in
connection with the operation involving his
codefendants in this case, the location where
the actual manufacturing was thought to have
taken place had already been searched.
Because no records connecting Stewart with
the manufacture of, or distribution of,
methamphetamine were found at these other
locations and because of Stewart’s alleged
unusual role as advisor, the Court finds that
the facts in the affidavit did establish
probable cause to search Stewart’s residence.
Whether probable cause existed or not, it cannot be
said that the magistrate’s decision that it did exist was
entirely unreasonable.
AFFIRMED.
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