UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
1Lundy 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

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
3

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.
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

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
5

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
3Lundy 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). 

6

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