                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4513


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TALVIN LEAK,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:09-cr-00081-FDW-1)


Submitted:   January 12, 2012             Decided:   February 6, 2012


Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Carol Ann Bauer, Morganton, North Carolina, for Appellant.
Cortney Escaravage, Assistant United States Attorney, Charlotte,
North Carolina; Amy Elizabeth Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Talvin Leak entered a conditional guilty plea, Fed. R.

Crim.    P.    11(a)(2),        to   possession      with      intent     to    distribute

cocaine base, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(B)

(West 1999 & Supp. 2011).                Leak preserved his right to appeal

the   district        court’s    denial      of   his     suppression      motion.       On

appeal,    Leak’s       counsel      filed    a   brief       pursuant    to    Anders   v.

California, 386 U.S. 738 (1967), asserting that, in her opinion,

there    are    no    meritorious      issues     for     appeal,    but       raising   the

following questions: (1) whether the district court erred in

finding that the search of Leak’s vehicle was justified as a

search incident to arrest; (2) whether the district court erred

in finding that the officers executing the search had probable

cause to search the vehicle based on the collective knowledge

doctrine; and (3) whether the district court erred in failing to

address the lawfulness of the vehicle search as an inventory

search.        Leak filed a pro se supplemental brief in which he

argues    that       the   traffic    stop     was      not   justified        because   the

investigating detective did not observe him commit a traffic

violation; that the detective’s reason for having him stopped

was a pretext to search his car; and that the detective needed a

wiretap       warrant      before    phoning      him    to    set   up    a    controlled

purchase of narcotics.               The Government has declined to file a

responsive brief.           We affirm.

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           We    review      the    district       court’s     factual       findings

underpinning its denial of a motion to suppress for clear error,

and its legal conclusions de novo.                United States v. Massenburg,

654 F.3d 480, 485 (4th Cir. 2011).                  We may affirm a district

court’s ruling on a motion to suppress on any grounds apparent

from the record.      United States v. Smith, 395 F.3d 516, 519 (4th

Cir. 2005).

           Leak contends that the 2008 search of the passenger

compartment     of   his     vehicle       by    Charlotte-Mecklenburg         police

officers was unconstitutional in light of the Supreme Court’s

decision in Gant v. Arizona, 129 S. Ct. 1710 (2009).                         In Gant,

the   Supreme   Court   held       that    “[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.”                      129 S. Ct. at

1723.   Leak argues that the district court erred in failing to

suppress the crack cocaine recovered during the search of his

vehicle because at the time of the search he was not within

reaching   distance     of    the    passenger       compartment      and     it   was

unreasonable for the police to believe that evidence relevant to

his offense of arrest would be found inside the vehicle.

           After     reviewing       the       record,   we    find   that     Leak’s

challenge to the search is foreclosed by the Supreme Court’s

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decision in Davis v. United States, 131 S. Ct. 2419 (2011).                    In

Davis, the Court held that “searches conducted in objectively

reasonable     reliance    on    binding      appellate   precedent   are    not

subject to the exclusionary rule.”              131 S. Ct. at 2423-24.        At

the time that the officers searched Leak’s vehicle, Gant had not

yet been decided, and our precedent permitted police to conduct

a search incident to arrest of the passenger compartment of a

vehicle even after its recent occupant had been arrested and

separated from the vehicle.              See United States v. Milton, 52

F.3d 78, 80 (4th Cir. 1995).                 Accordingly, we find that the

district court did not err in denying Leak’s motion to suppress. ∗

See   United   States     v.    Wilks,   647    F.3d   520   (4th   Cir.    2011)

(holding that the good faith exception to the exclusionary rule

allows admission of evidence secured by an officer who searched

a vehicle in reasonable reliance on binding appellate precedent

that was subsequently overruled).               We have also reviewed the

issues raised in Leak’s pro se brief and find them to be without

merit.




      ∗
       Because we find that the exclusionary rule does not apply
under these circumstances, we need not address the district
court’s finding that probable cause to search Leak’s vehicle
existed based on the collective knowledge doctrine, or its
failure to opine on the propriety of a subsequent inventory
search.



                                         4
            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We    therefore       affirm    the    district     court’s     judgment.

This court requires that counsel inform Leak in writing of his

right to petition the Supreme Court of the United States for

further review.          If Leak requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel    may    move    in     this   court     for   leave   to   withdraw   from

representation.      Counsel’s motion must state that a copy thereof

was served on Leak.

            We dispense with oral argument because the facts and

legal    contentions       are    adequately      presented     in   the    materials

before    the    court    and    argument      would    not   aid    the   decisional

process.



                                                                             AFFIRMED




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