Professional Documents
Culture Documents
No. 15-4216
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:
Decided:
retained
the
right
to
appeal
the
district
courts
his
omitted
residence.
material
confidential
Because
the
information
informant
who
search
about
was
the
the
warrant
application
reliability
primary
source
of
the
of
the
I.
In May 2014, one of the Wake Forest Police Departments
confidential informants (the informant) asserted that he was
able to buy illegal drugs from Lull in Lulls home, located in
Rolesville, North Carolina.
gave
this
information
to
Wake
County
Sheriffs
Office,
The informant
from
high
school
and
had
2
previously
purchased
cocaine,
Investigator
The
prior
to
conducting
the
controlled
buy.
For
example, it confirmed that a woman whose last name was Lull-believed to be Lulls mother--owned the residence at the address
the informant provided.
An undercover
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.
During
positioned
the
buy,
around
the
Investigator
Welch
corner
Lulls
from
and
his
team
residence,
and
were
the
the informant entered the home, and the officers listened to the
informants 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
J.A. 84. 1
being
inside
for
approximately
officer
to
conceal
observed
five
minutes,
the
something
behave
in
his
almost
as
pockets,
if
he
was
underwear.
At the Police
gave
the
detective
money
from
the
to
Lull.
Sheriffs
Investigator
Welch
Office
strip-searched
then
and
Drugs
and
Vice
Unit
of
the
Sheriffs
Office
another
the
J.A. 86.
immediately
J.A. 100.
8:30
the
p.m.,
the
officers
arrested
At approximately
informant
on
felony
to
search
Lulls
residence.
J.A.
88.
The
search
an
hour
after
the
officers
had
arrested
the
informant.
to
application.
Welchs
the
affidavit
magistrate
in
was
the
support
only
of
information
the
warrant
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.
drug
traffickers
very
readily
accessible
such
businesses.
often
as
keep
in
the
their
This was
aforementioned
residences
and
J.A. 41.
seller
identified
himself
as
Zack.
Further,
when
means,
J.A. 40.
conversation
was
heard
between
two
working
as
confidential
informant
for
the
Wake
the
officers
searched
Lulls
home,
firearms,
during
body
their
armor,
search.
there
were
five
and
around
All
five
$3,600
in
U.S.
individuals
were
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
quantity
of
cocaine
and
marijuana
in
Before
voided
and
fruits
of
the
search
excluded.
Franks,
second
prong--the
materiality
prong--the
Id.
Under
defendant
must
show that with the affidavits false material set to one side,
the affidavits remaining content is insufficient to establish
probable cause.
Id. at 156.
claims
submitted
here:
to
intentionally
Lull
obtain
and/or
contends
probable
recklessly
that
cause,
omitted
in
the
affidavit
Investigator
information
Welch
that
was
Spivey,
who
had
been
the
8
on-scene
supervisor
of
the
controlled buy.
the
Welch
district
had
court
possessed
concluded
the
requisite
that
even
intent,
if
the
discharge
cause.
from
service
would
not
have
defeated
probable
corroborated
by
the
fact
that
he
did,
in
fact,
obtain
trafficking
crime,
reserving
the
right
to
appeal
the
He was
Lull
timely appealed.
III.
When reviewing a district courts ruling on a motion to
suppress, we review factual findings for clear error and legal
determinations de novo.
the
evidence
in
the
light
favorable
to
the
of
reviewing
court
is
simply
to
ensure
[T]he
that
the
IV.
Lulls argument on appeal focuses on the affidavit that
Investigator
Welch
application.
submitted
Lull
intentionally
or
in
contends
recklessly
support
that
omitted
of
the
warrant
Investigator
material
facts
Welch
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
amend. IV.
by
Oath
or
affirmation.
U.S.
Const.
to
challenge
the
veracity
of
statements
made
in
an
The
showing
of
the
intentionality
and
materiality
Franks,
Id. at 156.
11
In the context of an
reckless
disregard
affidavit misleading.
of
whether
they
thereby
made,
the
warranting
two
separate
We first
consider
whether
suppression.
the
This
affiant
involves
omitted
the
information
either
the
affidavit
misleading.
Concluding
that
Investigator
this
omission
was
indeed
Because we conclude
material,
we
hold
that
the
omitted
magistrate
information
or
that
he
with
omitted
the
the
intent
to
information
mislead
with
the
reckless
the
defendants
burden
in
showing
intent
is
expected
to
include
in
an
12
affidavit
every
piece
of
Id.
merely
an
suppression.
innocent
mistake,
is
insufficient
to
warrant
Given
the
intended
evidence
to
presented
mislead
the
do
not
suggest
magistrate
Id.
or
that
acted
he
either
recklessly
in
at 301).
We
cannot
agree
with
the
district
court.
Contrary
to
he
was
transaction.
unreliable
during
course
of
this
very
to
do
with
that
controlled
purchase,
as
Investigator
Welch
for
the
purposes
of
the
controlled
buy,
he
also
J.A. 98-99.
However,
established
law
that
warrant
affidavit
must
set
forth
make
an
As
an
cause,
experienced
so
as
to
allow
investigator,
the
magistrate
Investigator
Welch
to
would
surely
when
the
provided
search
by
an
warrant
informant.
application
See
United
contains
States
v.
informant,
informants
knew
previous
of,
although
experience
not
working
directly
as
about,
the
confidential
However, the
the
information
that
was
actually
provided
to
him,
and
Sheriffs
informant;
(2)
consequences
acted
in
discharging
Investigator
of
the
Welchs
informants
and
arresting
knowledge
crime;
(3)
of
the
the
the
temporal
on
any
assessment
of
his
reliability.
Together,
of
the
demonstrated
by
informants
the
actions
informants
was
clear.
immediate
This
arrest
on
was
felony
the
informant
deemed unreliable.
had
been
discharged
because
he
had
been
decided
for
himself
that
the
informant
was
reliable
for
the
magistrates
probable
cause
determination.
One
way
of
knew
would
negate
probable
cause.
Miller,
475
F.3d
the
agents
intent. 2
The
trustworthiness
of
the
confidential
informant
lies
at
the
heart
of
the
reliability
This is especially so
informants
credibility
or
experience
working
as
confidential informant.
Given
Investigator
the
unique
Welchs
set
of
decision
to
circumstances
omit
this
surrounding
information,
we
Thus,
17
B.
We
next
consider
whether
the
omitted
information
is
Franks,
438
U.S.
at
In
Lulls
view,
the
assess
by
whether
considering
Lull
the
has
established
totality
of
the
the
materiality
circumstances,
233.
We
first
information
had
information,
and
on
consider
the
determine
the
effect
reliability
that
the
that
of
the
omitted
the
informants
informants
demonstrated
Because the
the
informants
reliability,
the
informants
insufficient
information
18
from
which
to
find
probable
cause.
Therefore,
we
conclude
that
the
omitted
to
be
considered,
assessment
of
we
probable
held
that
cause . .
must
judicial
include
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 informants reliability is without doubt: the
Sheriffs
Office
essentially
admitted
as
much
when,
upon
suppression
decision,
he
hearing
responded
why
that
the
Sheriffs
continuing
to
Office
work
made
with
this
the
informant after the informant had lied to and stolen from the
Sheriffs
Office
would
not
be
19
ethical.
Critically,
the
affidavit
contained
informants
no
reliability
other
and
information
failed
to
relating
mention
his
to
the
experience
Welchs
magistrate
from
omissions
being
able
therefore
to
prevented
accurately
assess
a
the
814
(7th
omitted
Cir.
all
2014)
(concluding
information
that
regarding
an
affidavit
the
that
informants
his
Because
of
role
as
neutral
this,
we
cannot
now
arbiter
rely
of
on
probable
these
cause).
statements
in
Hall, 113 F.3d 157, 158 (9th Cir. 1997) (holding that a search
warrant based solely upon an informants claims lacked probable
cause
where
the
affidavit
omitted
absolutely
critical
informant
and
next
consider
whether
20
the
remaining
2.
When the information provided by the informant is removed
from the affidavit, little remains.
and
emerged
five
minutes
later
with
cocaine;
and
two
[unidentified]
males
during
the
controlled
buy.
district
court
held
that
there
was
clearly
fair
We disagree.
21
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
case,
this
evidence,
by
In the circumstances of
itself,
is
insufficient
to
circuit
has
long
followed
the
rule
that
the
nexus
established
inferences
of
by
the
where
nature
one
of
would
the
item
and
the
likely
keep
such
normal
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)).
that
drug
traffickers
store
drug-related
311,
(collecting
319
above,
(4th
this
Investigator
Cir.
2008)
reasonable
Welch
relied
suspicion
upon
22
in
cases).
is
his
As
exactly
affidavit:
mentioned
that
that
which
drug
traffickers
very
often
accessible
such
as
keep
in
the
their
aforementioned
residences
items
and
readily
businesses.
J.A. 41.
But this inference is contingent on the connection between
the
drug
trafficker
and
his
or
her
residence.
From
the
belonged
to
Lulls
mother.
We
do
not
have
reliable
See United
States v. Suarez, 906 F.2d 977, 984 (4th Cir. 1990) (Probable
cause
to
search
circumstances[]
exists
are
when
sufficient
to
lead
the
a
totality
prudent
of
the
person
to
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.
462 U.S.
at
238-39
internal quotation
(alterations
marks
in
omitted).
original)
In
this
Gates,
(citation
case,
given
and
the
Glover,
criminal
F.3d
background
essential
context
755
to
of
the
a
at
and
818
financial
probable
detailed
([O]mission
cause
affidavit
motive
of
is
determination
that
had
an
informants
not
necessarily
been
in
the
extensively
credibility
of
the
informant
was
material
to
the
24
V.
Because Lull has shown by a preponderance of the evidence
that
Investigator
Welch
omitted
information
from
the
search
omissions
made
the
application
misleading,
and
because
denying
Lulls
suppression
motion.
The
ruling
of
the
25
concur
in
the
majority
opinions
holding
that
the
not
intentionally
or
recklessly
omit
from
the
warrant
information
was
material
and
therefore
that
its
and
judges,
state
and
federal,
know
from
experience and common sense that drug abusers who cooperate with
law
enforcement
officers
are
notoriously
unreliable
human
to
limited
to
their
inherent
addictions,
human
debts
dignity,
incurred
including
to
but
service
not
those
Investigator
But
26
in this case.
cocaine
constituted
warrant),
cited
probable
with
cause
approval
27
in
for
issuance
United
of
States
a
v.