UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
2

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
3

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
4

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
5

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.”
6

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
7

legal contentions are adequately presented in the materials before

the court, and argument would not aid the decisional process.

AFFIRMED