United States v. Lundy , 164 F. App'x 332 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5016
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARVIN LUNDY, a/k/a Bennie,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-03-42-H)
Argued: December 2, 2005 Decided: January 25, 2006
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Sofie Wonderly Hosford, HOSFORD & HOSFORD, P.C.,
Wilmington, North Carolina, for Appellant. Anne Margaret Hayes,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Frank
D. Whitney, United States Attorney, Christine Witcover Dean,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
After losing a motion to suppress evidence, Marvin Lundy
entered into a conditional guilty plea agreement with the
government, specifically preserving the right to appeal the
district court’s denial of his suppression motion. The district
court accepted Lundy’s guilty plea to one count of possession with
intent to distribute crack cocaine and sentenced him to 108 months
of imprisonment. On appeal, Lundy claims that the district court
erred by denying his motion to suppress evidence.1 We affirm.
I.
On the morning of February 4, 2002, a confidential informant
telephoned a Drug Enforcement Administration agent in Raleigh,
North Carolina, to inform him that he had just witnessed two
individuals “cooking” crack cocaine in a white trailer with brown
shutters at 83 Stevens Drive in Roanoke Rapids, North Carolina.
The informant identified one of the individuals as “Red” Ussery.
The informant also told the agent that there were two vehicles
parked in the trailer’s yard, a burgundy Nissan Maxima and a red
Ford F-150 pick-up truck. The DEA agent promptly provided this
1
Lundy also claims that the district court erred (1) by not
requiring the government to disclose the identity of its
confidential informant; and (2) by improperly enhancing his
sentence based on judge-found facts. Lundy’s first argument is
waived because he failed to preserve it in his conditional guilty
plea, see United States v. Bundy, 392 F.3d 641, 645 (4th Cir.
2004), and Lundy withdrew his second argument at oral argument.
2
information to a narcotics investigator in the Halifax County
Sheriff’s Department. The DEA agent also told the County
investigator that the confidential informant had provided reliable
information in the past.
The County investigator dispatched a deputy to verify the
information provided by the confidential informant. That deputy
went to the scene and promptly verified the information. In
particular, the deputy reported to the County investigator that the
location and description of the trailer were correct and that both
the burgundy Nissan Maxima and the red pick-up truck were parked
next to the trailer.
The County investigator quickly prepared a search warrant
application. In his supporting affidavit, the County investigator
included all of the information provided by the confidential
informant and the fact that a deputy had gone to the scene to
verify the accuracy of the description and location of the trailer
and the two vehicles. The County investigator also stated that the
DEA agent indicated that the confidential informant had provided
reliable information in the past. Additionally, the County agent
stated that he was familiar with “Red” Ussery and knew that he
drove a burgundy Nissan Maxima. Based on the information provided,
the local magistrate early that same afternoon issued a warrant to
search the trailer.
3
Shortly thereafter, the County investigator, other deputies,
and the DEA agent executed the warrant at the trailer. Lundy and
two other individuals (but not Ussery) were apprehended. In their
search of the premises, the deputies found a black leather jacket
with more than 120 grams of wet crack cocaine in one of its
pockets. After being advised of his Miranda rights, Lundy admitted
that the leather jacket and the drugs were his.
II.
Lundy was charged in federal court with possession with intent
to distribute crack cocaine. He thereafter moved to suppress the
evidence obtained in the search of the trailer, claiming that the
warrant was not supported by probable cause. After hearing
extensive testimony regarding how the warrant was obtained and
executed, including testimony from Lundy,2 the magistrate judge
assigned to this case recommended to the district court that
Lundy’s motion to suppress be denied because the warrant was
supported by probable cause. The district court adopted the
2
Lundy admitted in his testimony that Ussery cooked the
cocaine into crack cocaine in the trailer on the day the search
warrant was executed. Lundy also admitted that the crack cocaine
was his and that he intended to distribute it. Because these
admissions were obviously not known by the local magistrate when
the search warrant was issued, we do not consider them in
determining whether the warrant was supported by probable cause.
See United States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990)
(stating that the reviewing court grants deference to the
magistrate’s assessment of the facts actually presented to him).
4
recommendation and denied the motion. Lundy appeals the district
court’s denial of his motion to suppress.
In reviewing whether probable cause existed to issue a search
warrant, “our task is to determine whether the magistrate [who
issued the warrant] had a substantial basis for the decision.”
United States v. Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993). We
give the issuing magistrate’s decision substantial deference. Id.“[P]robable cause requires only a probability or substantial chance
of criminal activity, not an actual showing of such activity.”
Illinois v. Gates, 462 U.S. 213, 245 n.13 (1983). “It is well
settled that probable cause may be founded upon hearsay and
information received from informants.” United States v. DeQuasie,
373 F.3d 509, 518 (4th Cir. 2004). One factor “in determining
whether an informant’s report establishes probable cause is the
degree to which it is corroborated.” Lalor, 996 F.2d at 1581.
“Corroboration of apparently innocent details of an informant’s
report tends to indicate that other aspects of the report are also
correct,” because an informant who is right about some details is
probably also right about others. Id.We conclude that the information contained in the search
warrant application provided a substantial basis to believe that
criminal activity was probably taking place in the trailer and that
contraband would be found on the premises. The confidential
informant had provided reliable information to the DEA agent before
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witnessing Lundy’s criminal activity. Moreover, the Sheriff’s
Department was able to corroborate all of the timely and specific
details provided by the confidential informant about the location
and description of both the vehicles3 and the trailer where Lundy
was conducting his criminal activity. The County investigator also
knew that “Red” Ussery drove a burgundy Nissan Maxima, which was
consistent with the confidential informant’s allegation that there
was a burgundy Nissan Maxima parked in the trailer yard and “Red”
Ussery was inside the trailer. The corroboration of these innocent
details tended to make the informant’s representations about the
criminal activity inside the trailer more trustworthy.
III.
Because we conclude that the district court did not err in
finding that the search warrant was supported by probable cause, we
affirm the judgment of the district court.
AFFIRMED
3
Lundy raises several theories for his claim that the
dispatched deputy did not actually see the burgundy Nissan Maxima
when he went to the trailer. For instance, Lundy notes that the
County investigator’s subsequent reports list only the pick-up
truck and not the burgundy Nissan Maxima. At the suppression
hearing, the County agent explained that his failure to include the
burgundy Nissan Maxima in his post-arrest reports was merely an
oversight. The district court determined that the deputy confirmed
that both vehicles were parked in the trailer yard, and this
factual finding is not clearly erroneous. See Ornelas v. United
States, 517 U.S. 690, 699 (1996) (stating that factual findings are
reviewed for clear error).
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