Filed: May 25, 2016
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4216 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ZACKARY ROBERT LULL, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:14-cr-00106-BO-1) Argued: March 24, 2016 Decided: May 25, 2016 Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior Circuit Judge. Reversed, vacated, and remanded by published opinio
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4216 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ZACKARY ROBERT LULL, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:14-cr-00106-BO-1) Argued: March 24, 2016 Decided: May 25, 2016 Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior Circuit Judge. Reversed, vacated, and remanded by published opinion..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4216
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ZACKARY ROBERT LULL,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:14-cr-00106-BO-1)
Argued: March 24, 2016 Decided: May 25, 2016
Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Reversed, vacated, and remanded by published opinion. Judge
Duncan wrote the opinion, in which Judge Thacker joined. Senior
Judge Davis wrote an opinion concurring in part and dissenting
in part.
ARGUED: Joseph Edward Zeszotarski, Jr., GAMMON, HOWARD &
ZESZOTARSKI, PLLC, Raleigh, North Carolina, for Appellant.
Patrick Benton Weede, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G.
Walker, United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
DUNCAN, Circuit Judge:
Zackary Robert Lull (“Lull”) entered a conditional plea of
guilty to one count of possession of a firearm in furtherance of
a drug crime in violation of 18 U.S.C. § 924(c), in which he
expressly retained the right to appeal the district court’s
denial of his motion to suppress evidence obtained from a search
of his residence. Because the search warrant application
omitted material information about the reliability of the
confidential informant who was the primary source of the
information used to establish probable cause, we reverse the
district court’s denial of Lull’s motion to suppress, vacate his
conviction and sentence, and remand for further proceedings.
I.
In May 2014, one of the Wake Forest Police Department’s
confidential informants (“the informant”) asserted that he was
able to buy illegal drugs from Lull in Lull’s home, located in
Rolesville, North Carolina. The Wake Forest Police Department
gave this information to the Wake County Sheriff’s Office,
within whose jurisdiction Lull’s residence fell. The informant
had never worked with the Sheriff’s Office before.
In following up, Investigator E. A. Welch of the Sheriff’s
Office met with the informant. The informant said that he knew
Lull from high school and had previously purchased cocaine,
2
marijuana, and other illegal substances from Lull. Investigator
Welch arranged for the informant to purchase an “8-ball,” or
3.5 grams of cocaine, from Lull during a controlled buy. The
informant was to be paid for his assistance.
The Sheriff’s Office corroborated some of the informant’s
information prior to conducting the controlled buy. For
example, it confirmed that a woman whose last name was Lull--
believed to be Lull’s mother--owned the residence at the address
the informant provided. Several days later, the informant made
a recorded phone call to Lull in the presence of Investigator
Welch and other officers. During this call, the informant spoke
with a man who identified himself as “Zack,” who agreed to sell
the informant 3.5 grams of cocaine for $180 at Lull’s home later
that day.
Before initiating the controlled buy, officers searched the
informant and found no contraband on his person. An undercover
officer then drove the informant to Lull’s residence. Although
the agreed-upon purchase price for the 3.5 grams of cocaine was
$180, the officer gave the informant $240 because the informant
indicated that he might be able to purchase other illegal drugs
from Lull. The officer also gave the informant a telephone that
doubled as a recording device and would enable law enforcement
officers to listen to the informant’s interactions during the
controlled buy.
3
During the buy, Investigator Welch and his team were
positioned around the corner from Lull’s residence, and the
undercover officer was parked outside. Just after 6:00 p.m.,
the informant entered the home, and the officers listened to the
informant’s interactions through the telephone recording device.
The officers heard the informant engage in a conversation with
another individual, from whom the informant purchased cocaine.
Investigator Welch testified at the suppression hearing that he
could recognize the voice of the other individual as Lull “based
on [his] knowledge of [Lull].” J.A. 84. 1
After being inside for approximately five minutes, the
informant left the residence. As the informant was exiting, the
undercover officer observed him behave “almost as if he was
trying to conceal something in his pockets, underwear.”
J.A. 85. The informant entered the undercover officer’s car and
was driven to the Police Department and searched. At the Police
Department, the informant surrendered four grams of cocaine and
identified Zack Lull as the seller. He also returned $40 of the
remaining buy money, when he should have returned $60.
Officers questioned the informant about the remaining $20.
The informant first responded that he did not know what the
1 But see J.A. 103 (responding “[y]es, sir,” after being
asked on cross-examination “[y]ou said you couldn’t determine if
that was the defendant’s voice on the tape, correct?”).
4
officers were talking about, but eventually said that he thought
he gave the money to Lull. Investigator Welch and another
detective from the Sheriff’s Office then strip-searched the
informant, and “$20 dropped out of his underpants.” J.A. 86.
The Drugs and Vice Unit of the Sheriff’s Office immediately
determined that the informant was not reliable and terminated
him as a confidential informant. In Investigator Welch’s words,
they “didn’t think it would be an ethical thing to do, to use
someone as a confidential informant knowing full well [he] had
stolen from” the Sheriff’s Office. J.A. 100. At approximately
8:30 p.m., the officers arrested the informant on a felony
charge of obtaining property under false pretenses.
Following this incident, Investigator Welch “immediately”
began working on an affidavit in support of an application for a
warrant to search Lull’s residence. J.A. 88. The search
warrant was issued at approximately 9:00 p.m. that evening, just
half an hour after the officers had arrested the informant.
Investigator Welch, however, failed to disclose the informant’s
theft and subsequent arrest to the state court magistrate.
Investigator Welch’s affidavit was the only information
presented to the magistrate in support of the warrant
application. In relevant part, the affidavit read as follows:
2. Within the past 72 hours, Information was received
from a confidential source whereby a young white
18 year old male residing at the address identified as
5
Zach Lull, was selling quantities of Cocaine,
Marijuana and other illegal drugs from his home
address . . . for money to members of the community.
The information supplied to this affiant by CI# 14-12,
had stated he had recently bought illegal drugs from
this male identified as Zach Lull.
3. A check of the residence in Law Enforcement records
as well as physically going to the venue shows there
to exist such a location and the property owned by a
female with the last name “Lull” being the registered
home owner.
J.A. 39. The affidavit also recounted the controlled buy and
concluded with Investigator Welch’s statement that, based on his
training and experience, he would expect to find a number of
items in Lull’s home relating to drug trafficking. This was
because “drug traffickers very often keep the aforementioned
items readily accessible such as in their residences and
businesses.” J.A. 41.
The affidavit did not, however, include information about
the phone call between the informant and the seller, in which
the seller identified himself as “Zack.” Further, when
recounting what the officers overheard when the informant was
inside the residence, the affidavit stated only that “through
Investigative means, a conversation was heard between two
males.” J.A. 40. Investigator Welch did not assert in the
affidavit, as he asserted at the suppression hearing, that he
was able to independently identify Lull as the speaker through
his knowledge of Lull’s voice. Finally, the affidavit contained
6
no statement concerning the informant’s reliability or previous
experience working as a confidential informant for the Wake
Forest Police Department.
Officers executed the warrant at 10:35 p.m. that night.
When the officers searched Lull’s home, there were five
individuals inside, including Lull. Officers seized cocaine,
marijuana, firearms, body armor, and around $3,600 in U.S.
currency during their search. All five individuals were
arrested and charged with state drug charges in connection with
the contraband found at the residence.
II.
On June 4, 2014, a grand jury in the Eastern District of
North Carolina indicted Lull on one count of possession with
intent to distribute a quantity of cocaine and marijuana in
violation of 21 U.S.C. § 841(a)(1) (“Count One”), and one count
of possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c) (“Count Two”). Before
entering a plea, Lull moved to suppress all evidence obtained
from the search of his residence, arguing that officers obtained
the search warrant in violation of Franks v. Delaware, 438 U.S.
154 (1978).
In Franks, the Supreme Court developed a two-prong test
clarifying what a criminal defendant must show when challenging
7
the veracity of statements made in an affidavit supporting a
search warrant. If both prongs are met, the search warrant must
be voided and the fruits of the search excluded. Franks,
438 U.S. at 155-56. Under the first prong--the “intentionality”
prong--the defendant must show that “a false statement knowingly
and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit.”
Id. Under
the second prong--the “materiality” prong--the defendant must
show that “with the affidavit’s false material set to one side,
the affidavit’s remaining content is insufficient to establish
probable cause.”
Id. at 156. Both prongs must be proven by a
preponderance of the evidence.
Id.
We have since held that the two-pronged Franks test applies
not only to cases in which an agent includes affirmatively false
statements in a warrant affidavit, but also when an agent omits
relevant facts from the affidavit. United States v. Colkley,
899 F.2d 297, 300 (4th Cir. 1990). This provides the basis for
Lull’s claims here: Lull contends that in the affidavit
submitted to obtain probable cause, Investigator Welch
intentionally and/or recklessly omitted information that was
material to the determination of probable cause.
The district court held a Franks hearing on November 20,
2014, and heard testimony from Investigator Welch and Sergeant
Richard Spivey, who had been the on-scene supervisor of the
8
controlled buy. On November 23, 2014, the district court issued
an order denying Lull’s motion to suppress. The court concluded
that Investigator Welch’s conduct “did not rise to the level of
intentionally misleading or recklessly disregarding whether the
omission made the affidavit misleading.” United States v. Lull,
No. 5:14-CR-106-BO, 2014 WL 6666811, at *2 (E.D.N.C. Nov. 24,
2014). Because Investigator Welch did not possess the requisite
intent, the court reasoned, there was no Franks violation and no
reason to suppress the evidence.
Furthermore, the district court concluded that even if
Investigator Welch had possessed the requisite intent, the
omission would not have satisfied the Franks “materiality” prong
because including details about the informant’s theft, arrest,
and discharge from service would not have defeated probable
cause. The court reasoned that,
[r]egardless of with whom the informant spoke in the
house, from whom he obtained the cocaine, and what he
subsequently did with the buy money, there was clearly
a fair probability that contraband would be found
within the . . . house based on the undisputed fact
that the informant obtained cocaine therein.
Id. at *3. According to the district court, the informant’s tip
was “corroborated by the fact that he did, in fact, obtain
contraband in the location identified in the search warrant.”
Id. Thus, having found that Lull failed to satisfy either prong
9
of the Franks test, the district court denied Lull’s motion to
suppress.
In light of this ruling, Lull entered a conditional plea of
guilty to Count Two, possession of a firearm in furtherance of a
drug trafficking crime, reserving the right to appeal the
district court’s order denying his suppression motion. He was
sentenced to the statutory minimum of 60 months’ imprisonment on
Count Two, and the charges in Count One were dismissed. Lull
timely appealed.
III.
When reviewing a district court’s ruling on a motion to
suppress, “we review factual findings for clear error and legal
determinations de novo.” United States v. Lewis, 606 F.3d 193,
197 (4th Cir. 2010) (citation omitted). In doing so, “we must
construe the evidence in the light most favorable to the
prevailing party and give due weight to inferences drawn from
those facts by resident judges and law enforcement officers.”
Id. (citation and internal quotation marks omitted). “[T]he
duty of a reviewing court is simply to ensure that the
magistrate had a substantial basis for . . . conclud[ing] that
probable cause existed.” Illinois v. Gates,
462 U.S. 213, 238-
39 (1983) (second and third alterations in original) (citation
and internal quotation marks omitted).
10
IV.
Lull’s argument on appeal focuses on the affidavit that
Investigator Welch submitted in support of the warrant
application. Lull contends that Investigator Welch
intentionally or recklessly omitted material facts from the
affidavit and that, had those facts been included, the affidavit
would not have supported probable cause. Based on this
omission, Lull argues that, under Franks and its progeny, the
search of his home violated his Fourth Amendment rights.
Under the Fourth Amendment, which applies to the states
through the Fourteenth Amendment, see Mapp v. Ohio, 367 U.S.
643, 655 (1961), “no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation.” U.S. Const.
amend. IV. As mentioned above, in Franks, the Supreme Court
addressed the question of whether a criminal defendant has the
right to challenge the veracity of statements made in an
affidavit supporting an application for a search warrant. The
Court held that the defendant must first “make[] a substantial
preliminary showing” of the intentionality and materiality
prongs; if the defendant does so, “the Fourth Amendment requires
that a hearing be held at the defendant’s request.”
Franks,
438 U.S. at 155-56. If the defendant is able to satisfy both
prongs by a preponderance of the evidence at this hearing, the
search warrant is voided.
Id. at 156. In the context of an
11
omission, we have found a Fourth Amendment violation only where
“affiants omit[ted] material facts with the intent to make, or
in reckless disregard of whether they thereby made, the
affidavit misleading.” Colkley, 899 F.2d at 300 (citation and
internal quotation marks omitted).
Below, we consider whether Lull has satisfied this test,
thus warranting suppression. This involves two separate
inquiries, even though they turn on overlapping facts. We first
consider whether the affiant omitted the information either
intentionally or with reckless disregard of whether it would
make the affidavit misleading. Concluding that Investigator
Welch was at least reckless in his omission, we turn to the
“materiality” prong of the Franks test. Because we conclude
that this omission was indeed material, we hold that the
district court erred in denying Lull’s motion to suppress.
A.
To establish the “intentionality” prong under Franks, Lull
must show by a preponderance of the evidence that Investigator
Welch omitted information with the intent to mislead the
magistrate or that he omitted the information with reckless
disregard of whether it would make the affidavit misleading.
Understandably, the defendant’s burden in showing intent is
greater in the case of an omission because “[a]n affiant cannot
be expected to include in an affidavit every piece of
12
information gathered in the course of an investigation.” Id. A
showing that the officer acted negligently, or that the omission
was merely an innocent mistake, is insufficient to warrant
suppression. Miller v. Prince George’s Cty.,
475 F.3d 621, 627-
28 (4th Cir. 2007) (citing
Franks, 438 U.S. at 171).
1.
In considering the intentionality prong, the district court
noted that “Investigator Welch testified that he deliberately
chose not to include the information at issue because, given
that the controlled buy was completed prior to the theft, he
believed the theft had no bearing on the purchase of narcotics
from defendant’s house.” Lull, 2014 WL 6666811, at *2. Given
this, the court concluded that Investigator Welch’s “testimony
and the evidence presented do not suggest that he either
intended to mislead the magistrate or acted recklessly in
omitting the theft.”
Id. At the “very worst,” Investigator
Welch had acted negligently.
Id. (quoting Colkley, 899 F.2d
at 301).
We cannot agree with the district court. Contrary to
Investigator Welch’s contention, the informant’s theft was not
“separate” from the controlled buy. The informant demonstrated
that he was unreliable during the course of this very
transaction. Given this, how the informant’s “behavior and his
conduct in stealing that money” could have “absolutely nothing
13
to do with that controlled purchase,” as Investigator Welch
contends, eludes us. See J.A. 94.
Although Investigator Welch asserts that the informant was
reliable for the purposes of the controlled buy, he also
testified that the informant was “absolutely” determined to be
unreliable after the informant stole. J.A. 98-99. However,
deeming the informant reliable for some purposes but unreliable
for others is an assessment that is for the magistrate, not
Investigator Welch, to make. See Franks, 438 U.S. at 165 (“It
is established law that a warrant affidavit must set forth
particular facts and circumstances underlying the existence of
probable cause, so as to allow the magistrate to make an
independent evaluation of the matter.”) (citations omitted). As
an experienced investigator, Investigator Welch would surely
know that reliability is “key” to a magistrate’s probable cause
analysis when the search warrant application contains
information provided by an informant. See United States v.
Wilhelm,
80 F.3d 116, 119 (4th Cir. 1996).
We acknowledge that Investigator Welch dealt directly with
the informant, knew of, although not directly about, the
informant’s previous experience working as a confidential
informant for the Wake Forest Police Department, and listened in
on the conversation during the controlled buy. However, the
magistrate can only make a probable cause determination based on
14
the information that was actually provided to him, and
Investigator Welch failed to include any details, impressions,
or limitations related to these events in his affidavit.
For these reasons, we find the district court’s reasoning
as to Investigator Welch’s intentionality unpersuasive.
2.
In reaching our conclusion that Investigator Welch omitted
this information at least recklessly, we find several facts to
be significant. These include: (1) the decisiveness with which
the Sheriff’s Office acted in discharging and arresting the
informant; (2) Investigator Welch’s knowledge of the
consequences of the informant’s crime; (3) the temporal
proximity of the arrest to the decision to omit information from
the affidavit; and (4) the obvious impact of the informant’s
misconduct on any assessment of his reliability. Together,
these factors are dispositive under the circumstances of this
case and show that Investigator Welch acted at least recklessly.
First, to the rest of the Sheriff’s Office, the egregious
nature of the informant’s actions was clear. This was
demonstrated by the informant’s immediate arrest on felony
charges and discharge from service. Second, as discussed above,
Investigator Welch knew at the time he filled out the affidavit
that the informant had been discharged because he had been
deemed unreliable. Despite this knowledge, Investigator Welch
15
decided for himself that the informant was reliable for the
purposes of the controlled buy, usurping the magistrate’s role.
Third, little time passed between the arrest and Investigator
Welch’s decision to omit this information from the affidavit.
These events transpired just minutes before Investigator Welch
drafted the warrant application, and they were undoubtedly fresh
in his mind.
Finally, the omitted information was clearly relevant to
the magistrate’s probable cause determination. One way of
establishing reckless disregard is by proffering “evidence that
a police officer ‘failed to inform the judicial officer of facts
[he] knew would negate probable cause.’” Miller, 475 F.3d
at 627 (alteration in original) (citations omitted); see also
United States v. Jacobs,
986 F.2d 1231, 1234-35 (8th Cir. 1993)
(“[T]he omission occurred at least with reckless disregard of
its effect upon the affidavit. . . . Any reasonable person would
have known that this was the kind of thing the judge would wish
to know.”). The relevance of the omission thus comes into play:
the significance--or insignificance--of a particular omission to
the determination of probable cause may inform our conclusion
regarding the agent’s intent. 2 The trustworthiness of the
2
This court has previously noted in dicta that it has
“doubts about the validity of inferring bad motive under Franks
from the fact of omission alone, for such an inference collapses
(Continued)
16
confidential informant lies at the heart of the reliability
determination, and so the relevance of this information should
have been obvious to Investigator Welch. This is especially so
because the affidavit contained no other statement concerning
the informant’s credibility or experience working as a
confidential informant.
Given the unique set of circumstances surrounding
Investigator Welch’s decision to omit this information, we
cannot conclude that Investigator Welch’s omission was an act of
mere negligence or an innocent mistake. At the very least, Lull
has shown by a preponderance of the evidence that Investigator
Welch omitted the information with reckless disregard of whether
it would make the affidavit misleading to the magistrate. Thus,
we conclude that Lull has satisfied the intentionality prong of
the Franks test.
into a single inquiry the two elements--‘intentionality’ and
‘materiality’--which Franks states are independently necessary.”
Colkley, 899 F.2d at 301. We are mindful in this case to treat
each prong as a distinct inquiry, and we do not base our
conclusion on “the fact of omission alone.” Rather, we consider
this fact along with the broader circumstances in which the
affidavit was drafted.
17
B.
We next consider whether the omitted information is
“material” under Franks: that is, whether it was “necessary to
the finding of probable cause.” See Colkley, 899 F.2d at 301
(quoting
Franks, 438 U.S. at 156). In Lull’s view, “the
credibility of the informant was paramount to the probable cause
analysis,” given that the only evidence identifying Lull as the
seller of the drugs in the affidavit came from an informant who
had been deemed unreliable. See Appellant’s Br. at 21.
We assess whether Lull has established the materiality
prong by considering the “totality of the circumstances,”
evaluating the affidavit as a whole and all circumstances set
forth within. Colkley, 899 F.2d at 301-02; see
Gates, 462 U.S.
at 233. We first consider the effect that the omitted
information had on the reliability of the informant’s
information, and determine that the informant’s demonstrated
unreliability undermined his credibility and the veracity of his
statements presented in the warrant application. Because the
magistrate did not have the benefit of the omitted information
concerning the informant’s reliability, the informant’s
statements were not properly considered as a basis for probable
cause. When these statements are excluded, we conclude that
there remains insufficient information from which to find
18
probable cause. Therefore, we conclude that the omitted
information is indeed “material” under Franks.
1.
Much of the information included in Investigator Welch’s
affidavit came solely from the informant. When the information
forming the basis for probable cause comes from an informant,
the informant’s “veracity” and “reliability” are critical to the
totality of the circumstances test. Wilhelm, 80 F.3d at 119
(quoting
Gates, 462 U.S. at 233). While these are not the only
factors to be considered, we have held that “a judicial
officer’s assessment of probable cause . . . must include a
review of the ‘veracity’ and ‘basis of knowledge’ of persons
supplying hearsay information.” United States v. Perez,
393 F.3d 457, 461-62 (4th Cir. 2004) (emphasis added) (citations
and internal quotation marks omitted).
In this case, that the omitted information seriously calls
into question the informant’s reliability is without doubt: the
Sheriff’s Office essentially admitted as much when, upon
discovering the theft, it immediately discharged the informant.
Further, as noted above, when Investigator Welch was asked at
the suppression hearing why the Sheriff’s Office made this
decision, he responded that continuing to work with the
informant after the informant had lied to and stolen from the
Sheriff’s Office would not be ethical. Critically, the
19
affidavit contained no other information relating to the
informant’s reliability and failed to mention his experience
working as a confidential informant for the Wake Forest Police
Department.
Investigator Welch’s omissions therefore prevented a
neutral magistrate from being able to accurately assess the
reliability and the veracity, and thus the significance, of the
informant’s statements. See United States v. Glover, 755 F.3d
811, 814 (7th Cir. 2014) (concluding that an affidavit that
“omitted all information regarding the informant’s
credibility . . . undermined the issuing magistrate’s ability to
perform his role as a neutral arbiter of probable cause”).
Because of this, we cannot now rely on these statements in
assessing whether probable cause existed. See United States v.
Hall,
113 F.3d 157, 158 (9th Cir. 1997) (holding that a search
warrant based solely upon an informant’s claims lacked probable
cause where the affidavit omitted “absolutely critical”
information calling into question the informant’s credibility).
We therefore set aside the information provided exclusively by
the informant and next consider whether the remaining
information supports a finding of probable cause.
20
2.
When the information provided by the informant is removed
from the affidavit, little remains. We are left only with:
(1) the identification of the residence as belonging to a woman
with the last name “Lull”; (2) the fact of the controlled buy,
that is, that the informant went into the Lull residence without
cocaine and emerged five minutes later with cocaine; and
(3) that “through Investigative means, a conversation was heard
between two [unidentified] males” during the controlled buy.
J.A. 40. No information remaining in the affidavit identifies
Lull specifically as the seller or otherwise connects him to the
drug transaction. 3
The district court held that “there was clearly a fair
probability that contraband would be found within the . . .
house based on the undisputed fact that the informant obtained
cocaine therein.” Lull, 2014 WL 6666811, at *3. We disagree.
While the occurrence of the controlled buy is certainly relevant
3 In evaluating whether probable cause would have existed if
the omitted statements had been included, we only consider “the
information actually presented to the magistrate during the
warrant application process.” Owens ex rel. Owens v. Lott, 372
F.3d 267, 277 (4th Cir. 2004) (citation omitted). We therefore
do not consider any additional facts that Investigator Welch
testified to during the suppression hearing, including that
Investigator Welch recognized the voice of the other individual
heard speaking during the controlled buy as Lull, because this
information was not presented to the magistrate.
21
to the probable cause determination, this is just one fact to be
considered against the totality of the circumstances. See
United States v. Khounsavanh, 113 F.3d 279, 285 (1st Cir. 1997)
(“Because of the importance of Fourth Amendment freedoms to
every American, and because of the fact[-]specific nature of the
probable cause inquiry, we reject the government’s contention
that a controlled buy should be per se sufficient to establish
probable cause.”) (citation omitted). In the circumstances of
this case, this evidence, by itself, is insufficient to
establish probable cause.
Our circuit has long followed the rule that “the nexus
between the place to be searched and the items to be seized may
be established by the nature of the item and the normal
inferences of where one would likely keep such evidence.”
United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993)
(quoting United States v. Anderson,
851 F.2d 727, 729 (4th Cir.
1988)). In previous drug trafficking cases, we have found the
nexus requirement satisfied when there was evidence that the
suspect was involved in the crime, coupled with “the reasonable
suspicion . . . that drug traffickers store drug-related
evidence in their homes.” United States v. Williams,
548 F.3d
311, 319 (4th Cir. 2008) (collecting cases). As mentioned
above, this “reasonable suspicion” is exactly that which
Investigator Welch relied upon in his affidavit: that “drug
22
traffickers very often keep the aforementioned items readily
accessible such as in their residences and businesses.”
J.A. 41.
But this inference is contingent on the connection between
the drug trafficker and his or her residence. From the
remaining information in the affidavit, essentially all we know
is that cocaine was purchased from a man in a residence that may
have belonged to Lull’s mother. We do not have reliable
information about who this man was, whether he resided there, or
if he was alone in the residence. Although the investigators
personally witnessed the informant go in with money and come out
with drugs, they relied on the informant’s word alone that the
seller was Lull. This lack of information about the identity of
the seller creates an obvious problem: if a non-resident had
been the individual who had sold drugs to the informant--if Lull
was not the drug trafficker--there would be no reason to believe
that, hours later, there would be drug contraband or financial
records of drug transactions in Lull’s residence. See United
States v. Suarez, 906 F.2d 977, 984 (4th Cir. 1990) (“Probable
cause to search exists when . . . the totality of the
circumstances[] are sufficient to lead a prudent person to
believe that the items sought . . . will be present at the time
and place of the search.”) (emphasis added) (citation omitted).
23
As the Supreme Court has repeatedly emphasized, the
“physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed.” Payton v. New
York, 445 U.S. 573, 585 (1980) (quoting United States v. United
States District Court,
407 U.S. 297, 313 (1972)). Because of
this, when reviewing cases such as the one before us, we must
satisfy ourselves that “the magistrate had a substantial basis
for . . . conclud[ing] that probable cause existed.”
Gates,
462 U.S. at 238-39 (alterations in original) (citation and
internal quotation marks omitted). In this case, given the
unusual degree of reliance on the informant and the near-total
lack of corroborating evidence, this standard has not been met.
Cf.
Glover, 755 F.3d at 818 (“[O]mission of an informant’s
criminal background and financial motive is not necessarily
essential to the probable cause determination . . . in the
context of a detailed affidavit that had been extensively
corroborated.”) (citation and internal quotation marks omitted).
The connection between Lull and the drugs is too tenuous to
support a finding of probable cause to search his residence.
3.
In light of the above, the omitted information bearing on
the credibility of the informant was material to the
magistrate’s finding of probable cause, and we conclude that
24
Lull has established the materiality prong of the Franks test by
a preponderance of the evidence.
V.
Because Lull has shown by a preponderance of the evidence
that Investigator Welch omitted information from the search
warrant affidavit with at least a reckless disregard for whether
these omissions made the application misleading, and because
these omissions were material to a finding of probable cause,
Lull has established a violation of his Fourth Amendment rights
under Franks v. Delaware. Therefore, the district court erred
in denying Lull’s suppression motion. The ruling of the
district court is accordingly reversed, Lull’s conviction and
sentence vacated, and the case remanded for further proceedings
consistent with this opinion.
REVERSED, VACATED, AND REMANDED
25
DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:
I concur in the majority opinion’s holding that the
district court clearly erred in finding that Investigator Welch
did not intentionally or recklessly omit from the warrant
affidavit the circumstances surrounding the informant’s attempt
to steal twenty dollars from the funds provided by the Sheriff’s
Office to make the controlled buy. For the reasons stated by
the district court, however, I cannot join in holding that the
omitted information was “material” and therefore that its
absence defeated probable cause to search the Lull residence.
Magistrates and judges, state and federal, know from
experience and common sense that drug abusers who cooperate with
law enforcement officers are notoriously unreliable human
beings, burdened as they typically are with barely manageable
affronts to their inherent human dignity, including but not
limited to addictions, debts incurred to service those
addictions, and criminal convictions, all coupled with dissolved
and dissolving family and personal relationships. Investigator
Welch should have disclosed the informant’s post-controlled-buy
arrest and the reasons for it; as the majority opinion cogently
explains, his excuse for not doing so cannot be credited. But
even if he had made the disclosure, no judge with experience
issuing warrants would have refused to issue the search warrant
26
in this case. Cf. United States v. Allen, 960 F.2d 1055, 1057
(D.C. Cir. 1992) (holding that an informant’s controlled buy of
crack cocaine constituted probable cause for issuance of a
search warrant), cited with approval in United States v.
Clyburn,
24 F.3d 613, 618 (4th Cir. 1994).
Respectfully, I dissent, in part.
27
