UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4691
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
ALVAN DEVON HOLT,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. William L. Osteen,
District Judge. (CR-04-53)
Submitted: August 9, 2006 Decided: August 30, 2006
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellant. Steven T. Meier, MALONEY AND MEIER, L.L.C., Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
The government appeals the judgment dismissing drug and
firearms charges against Alvan Devon Holt. The dismissal came
after the district court held that a search warrant -- whose
execution yielded the only evidence against Holt -- was not
supported by probable cause and that the fruits of the search were
not admissible under the good faith exception set forth in United
States v. Leon, 486 U.S. 897 (1984). We affirm.
I.
On the morning of January 2, 2004, Officer S.S. Greene of
the Charlotte Mecklenburg Police Department received information
from a confidential source about sales of marijuana. Greene was at
the time a police force veteran of over four years, who had more
than one year of experience in drug enforcement. He had been
involved in at least 350 drug arrests and 150 search warrants.
Greene presented the informant’s tip in an application to a state
magistrate for a search warrant for the single story dwelling
located at 235 Kingville Drive in Charlotte, North Carolina. The
application also described a person to be searched as “a black
male, called ‘Big Al’ known as Alvan Devon Holt, [born] 8/23/74
with medium complexion [and] approximately 6'3" and 265 pounds.”
J.A. 14. The affidavit that Greene submitted read in part:
I have received information from a confidential and
reliable informant who states they have been to the above
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listed location and observed the above described black
male possessing and selling marijuana from the above
listed location. This informant has witnessed the above
described black male possessing and selling marijuana
from the above listed location within the last 48 hours.
The officer has known the informant for approximately 2
years. During this time, the informant has given me
information on drug activity that I have been available
[sic] to verify through my own independent
investigations. During this time, the informant has made
purchases of controlled substances under the direct
supervision of this officer. The informant admitted to
using a controlled substance and is familiar with how
marijuana is packaged for sale in the Charlotte area.
J.A. 14. This affidavit was the only support presented to the
magistrate. No additional testimony or information confirmed the
reliability of the source or established a nexus between the
premises to be searched and the alleged drug activity.
Based on the affidavit alone, the magistrate issued the
warrant on January 2, 2004. The warrant authorized the seizure of
“[m]arijuana, a controlled substance, evidence of ownership, access
or control of property, firearms, pagers, cellular phones, currency
an[d] other items of drug furtherance.” J.A. 14. Later that day,
officers searched the specified premises and found Holt as well as
quantities of marijuana and cocaine, a scale, a loaded firearm,
approximately $7,500 in cash, and other items suggesting drug
distribution. A three-count indictment filed in August 2004 in the
Western District of North Carolina charged Holt with possession of
a firearm after a felony conviction, in violation of 18 U.S.C.
§ 922(g)(1); possession with intent to distribute marijuana and
cocaine, in violation of 21 U.S.C. § 841(a)(1); and the use and
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carrying of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1). The government’s case
against Holt consisted entirely of the evidence seized during the
January 2, 2004, search.
On November 15, 2004, two days before trial, Holt moved
to invalidate the search warrant and to suppress the evidence
seized. The court took the motion under advisement, permitted the
government time to respond, and proceeded with the trial. Holt was
convicted by the jury on all counts. A few days after the verdict,
the government submitted its response to Holt’s motion to suppress.
At the sentencing hearing in June 2005 the district court
granted Holt’s motion. The court determined that the affidavit
lacked critical information, even assuming that the confidential
source was sufficiently reliable. As the court explained:
There is no indication [in the affidavit] that [the
defendant] Big Al resides at the premises or has ever
been on the premises prior to this single occasion.
There is no indication that Big Al owns, or pays rent, or
is an invited guest at 235 Kingville Drive. There is no
information provided to show whether the sale was inside
or outside the house. There is no information that Big
Al had an additional amount of marijuana for sale or that
he would return with more at a later time. There is not
even an indication of the quantity sold on that one
occasion. In short, there is no information that links
ongoing or future drug activity to this home, and thus
there is no indication that a search of the home would
yield any evidence of drug activity.
J.A. 34-35. For these reasons, the court continued, the affidavit
failed to provide the magistrate with a substantial basis for
determining that drugs and other contraband would be found at 235
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Kingville Drive. J.A. 35. As the affidavit was the only
information presented to the magistrate, the district court
concluded that the magistrate lacked sufficient information to
exercise independent judgment about the existence of probable
cause. Accordingly, the court ruled that the warrant was invalid.
See Leon, 468 U.S. at 914-15; Illinois v. Gates, 462 U.S. 213, 238-
39 (1983); United States v. Lalor, 996 F.2d 1578, 1582-83 (4th Cir.
1993).
The district court further concluded that the Leon good
faith exception did not save the fruits of the search from
suppression. “[A]ny officer who had experience and training should
have known that Officer Greene’s affidavit, which is the only
information the magistrate had, provided no [indicia of probable]
cause to believe contraband would be found at 235 Kingville Drive.”
J.A. 45. From an objective standpoint, the court suggested, any
reasonably well-trained officer -- especially one with Officer
Greene’s training and experience -- would have known that the
search was illegal despite the magistrate’s authorization. The
affidavit thus fit the third circumstance identified in Leon that
bars application of the good faith exception. Specifically, “the
officer will have no reasonable grounds for believing that the
warrant was properly issued” because the affidavit on which the
warrant was based was “so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable.”
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Leon, 468 U.S. at 923 (footnote and internal quotation marks
omitted); see also United States v. Bynum, 293 F.3d 192, 195 (4th
Cir. 2002). The district court suggested that had the officers
taken steps to verify Holt’s connection to the home, for example by
providing “a utility bill in his name or some information that his
girlfriend owned the home, the search may have survived scrutiny.”
J.A. 45-46. Absent such a step, the search was invalid even under
the Leon exception. Accordingly, the district court granted Holt’s
motion to suppress. J.A. 46.
In the meantime, the government had stipulated that the
case would have to be dismissed if the evidence from the search was
suppressed, because no other evidence was presented at trial.
Therefore, having granted Holt’s motion, the district court entered
a judgment order dismissing the charges against him. J.A. 47. The
government appeals the judgment, arguing that the district court
erred in suppressing the evidence seized pursuant to the search
warrant.
II.
After reviewing the joint appendix and the briefs of the
parties, we affirm on the reasoning of the district court. See
United States v. Holt, No. 3:04-CR00053 (W.D.N.C. July 7, 2005)
(mem. op.). We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials before
the court, and argument would not aid the decisional process.
AFFIRMED
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