NOT TO BE PUBLISHED

OPINION

DIXON, Judge.

Joseph Christopher Merriman appeals from a Fayette Circuit Court judgment sentencing him to serve ten years for first-degree trafficking in controlled substance, third-degree possession of a controlled substance and being a first-degree persistent felony offender. Merriman entered a plea of guilty to the charges conditioned on his right to appeal the circuit court's denial of his motion to suppress evidence recovered in a search of his person and the trunk of his car. He raises two main arguments: first, that the information underlying the search warrant obtained by the police was stale, and second, that the police lacked probable cause to search the trunk of his car.

At the suppression hearing, Officer Zachery King testified that on November 26, 2012, a fellow officer received a tip from a confidential informant that Merriman was selling thirty-milligram Oxycodone pills from his mother's house on Embry Avenue. The officers arranged for the confidential informant to make a controlled buy. After the police searched his car and gave him money, the informant purchased drugs from Merriman at his mother's house on December 3, 2012.

On the next day, December 4, 2012, Officer King sought and obtained a search warrant for Merriman's mother's house on Embry Avenue. In the supporting affidavit, King stated that within the prior thirty-six hours, a confidential informant had purchased Oxycodone pills from Merriman at that address.

The warrant was executed approximately seven hours after it was issued. The police watched Merriman arrive at the Embry Avenue residence in his car. He got out and opened the trunk. As the officers approached, a detective informed King that he could see that Merriman appeared to be concealing something in his trunk. The officers approached Merriman and announced themselves as he stood by the open trunk. A search of Merriman's person yielded twenty Oxycodone pills and three Xanax pills from his right front pocket, and $1,577 in cash from his other pocket. A detective looked in the open trunk of Merriman's car. He saw a piece of rolled-up toilet paper, which contained twenty more Oxycodone pills.

Following the hearing, the circuit court ruled that the information presented in the affidavit was not stale, and that the police officers' search of the trunk was lawful under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), because it was reasonable to believe that Merriman's vehicle contained evidence of the offense of the arrest.

Our review of a trial court's ruling on a motion to suppress is two-fold. First, the factual findings are deemed conclusive if they are supported by substantial evidence. Kentucky Rules of Criminal Procedure (RCr) 9.78. If unsupported by substantial evidence, the trial court's factual findings are deemed clearly erroneous. Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001). Second, we conduct a de novo review to determine whether the trial court's decision was correct as a matter of law. Roberson v. Commonwealth, 185 S.W.3d 634, 637 (Ky. 2006).

Merriman argues that the judge who issued the search warrant did not have probable cause to believe that Merriman would still be selling drugs at the Embry Avenue address thirty-six hours after the controlled buy had occurred.

Kentucky has adopted the federal "totality of the circumstances" test for determining whether probable cause existed at the time a warrant was issued. Beemer v. Commonwealth, 665 S.W.2d 912 (Ky.1984) (citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). This standard describes the task of the issuing magistrate as

Beemer, 665 S.W.2d at 914-15 (citations omitted).

In keeping with this flexible standard, "[w]hether information supporting probable cause is stale `must be determined by the circumstances of each case.'" Lovett v. Commonwealth, 103 S.W.3d 72, 80 (Ky.2003) (quoting Sgro v. United States, 287 U.S. 206, 210-11, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932)). "The function of a staleness test in the search warrant context is not to create an arbitrary time limitation within which discovered facts must be presented to a magistrate." Ragland v. Commonwealth, 191 S.W.3d 569, 584 (Ky. 2006) (quoting United States v. Henson, 848 F.2d 1374, 1382 (6th Cir. 1988)). Rather, the question of staleness depends on the "inherent nature of the crime." Id. Instead of measuring staleness solely by counting the days on a calendar, courts must also concern themselves with the following variables: "the character of the crime (chance encounter in the night or regenerating conspiracy?), the criminal (nomadic or entrenched?), the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), the place to be searched (mere criminal forum of convenience or secure operational base?), etc. [.]" Id.

In applying these factors to his case, Merriman contends that the information provided by the confidential informant, and his subsequent controlled buy, did not indicate a regenerating conspiracy, or suggest that Merriman would still be selling drugs at the Embry Avenue address thirty-six hours later. He also describes the evidences of the pills as perishable and easily transferable. He contends that the place to be searched was not a secure operational base, because no drugs were later found in the house, only on his person and in the trunk of his car. This latter argument is not based on facts found in the affidavit, however, and may not be considered because "in assessing the validity of the warrant, we may only `review the four corners of the affidavit and not extrinsic evidence in analyzing the warrant-issuing judge's conclusion.'" Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010).

In our view, the evidence in the affidavit suggests that this was, if not a "regenerating conspiracy," then an "entrenched criminal." The place to be searched could, on the basis of the information in the affidavit, have been a secure operational base for Merriman because it was his mother's house. Moreover, the fact that the informant knew the address on November 26 and was able to purchase drugs there several days later on December 3, demonstrates that this was more than a "chance encounter in the night." Although pills are certainly transferable, and capable of easy destruction or consumption, the police were not seeking to recover any particular set of identifiable pills, but rather evidence of Merriman's alleged stock in trade.

One of the cases on which Merriman relies, People v. David, 326 N.W.2d 485 (Mich. Ct. App. 1982) in which an affidavit was held to be stale, is of limited utility because it applies the earlier, more stringent Aguilar-Spinelli test for probable cause, in particular as it relates to the credibility of the informant. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). This test has been superseded by the "totality of circumstances test." See Illinois v. Gates, supra. Furthermore, the period that elapsed between the controlled buy and the issuance of the warrant in the David case was three days, considerably longer than in Merriman's case. Under the totality of the circumstances test, we conclude that a substantial basis existed to issue a warrant in this case. Consequently, Merriman's argument that the good faith exception to a flawed warrant does not apply in this case need not be addressed.

Merriman also argues that the police officers lacked probable cause to search the trunk of his car. "Among the recognized exceptions to the warrant requirement is a search incident to arrest. Under the search incident to arrest exception, an officer is permitted to search the person arrested and the area within the arrestee's immediate control." McCloud v. Commonwealth, 286 S.W.3d 780, 785 (Ky. 2009) (citations omitted). Under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), "[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." McCloud, 286 S.W.3d at 785. In this case, it was reasonable for the police officers to believe that the trunk of Merriman's car contained evidence of trafficking in drugs, both on the basis of the informant's controlled buy from Merriman at that address, but also the detective's contemporaneous observation that Merriman appeared to be concealing something in his trunk as officers approached him.

For the foregoing reasons, the circuit court did not err in denying the motion to suppress, and its judgment is therefore affirmed.

ALL CONCUR.