United States v. Lull

• Decision Date: 25 May 2016
• Docket Number: No. 15–4216,15–4216
• Citation: 824 F.3d 109
• Parties: United States of America, Plaintiff–Appellee, v. Zackary Robert Lull, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

824 F.3d 109

United States of America, Plaintiff–Appellee

v.Zackary Robert Lull, Defendant–Appellant.

No. 15–4216

United States Court of Appeals, Fourth Circuit.

Argued: March 24, 2016

Decided: May 25, 2016

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.

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.

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, 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.

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 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 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 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, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

In Franks

, the Supreme Court developed a two-prong test clarifying what a criminal defendant must show when challenging 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, 98 S.Ct. 2674

. 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, 98 S.Ct. 2674. 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...