United States v. Pulley

• Decision Date: 10 February 2021
• Docket Number: No. 19-4273,19-4273
• Citation: 987 F.3d 370
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Craig Leon PULLEY, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

987 F.3d 370

UNITED STATES of America, Plaintiff - Appellee,

v.Craig Leon PULLEY, Defendant - Appellant.

No. 19-4273

United States Court of Appeals, Fourth Circuit.

Argued: October 30, 2020

Decided: February 10, 2021

ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Daniel Taylor Young, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Amanda C. Conner, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Sherrie S. Capotosto, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Before NIEMEYER and KEENAN, Circuit Judges, and Richard E. MYERS II, Chief United States District Judge for the Eastern District of North Carolina, sitting by designation.

MYERS, Chief District Judge:

Craig Leon Pulley appeals his conviction entered pursuant to a conditional guilty plea to possession with intent to distribute a quantity of hydrocodone, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). In accordance with the parties’ agreement, Pulley asserts on appeal that after conducting a two-day hearing pursuant to Franks v. Delaware , the district court erred in denying his motion to suppress evidence that was seized pursuant to warrants authorizing searches of his residence, automobile, and mobile device in connection with a July 29, 2017, robbery. Pulley argues that one statement tending to establish probable cause and three omissions from the affidavit supporting the application for the search warrants were false and/or misleading and, thus, the warrants issued were invalid. For the reasons that follow, we affirm the district court.

I.

Four similar, armed robberies of independent pharmacies in Norfolk, Virginia, occurred over the span of eighteen months from April 2016 to October 2017. The robberies shared the same modus operandi, including that an armed robber entered the pharmacy with white trash bags and directed the victim/clerk on duty to fill the bags with certain prescription narcotics. While the first three robberies involved only one man physically entering the pharmacy, Detective C. J. Howard (hereinafter "Detective Howard" or "affiant") always suspected a second individual was involved, possibly serving as the getaway driver. Two armed individuals entered the pharmacy to carry out the fourth robbery. The investigation into these four robberies eventually led Norfolk police to Defendant Craig Leon Pulley (hereinafter "Pulley").

After the third robbery but before the fourth took place, a confidential informant (hereinafter "CI") positively identified Darryl Blunt (hereinafter "Blunt") as a suspect in both the second and third robberies and mentioned that at least one other person was present when the CI retrieved narcotics from Blunt. The CI did not name Pulley; he identified the person as Blunt's cousin, who went by the nickname "Cuz," and who was twice charged with murder but never convicted. Further investigation showed that Blunt and Pulley are not related, but grew up together and were like family. Pulley had been charged with murder prior to the instant offenses.

Detective Howard obtained Blunt's cell phone records and GPS location data, which confirmed Blunt's presence in the vicinity of the pharmacy in question for both the second and third robberies. Cell phone data also confirmed that Blunt received a short, incoming phone call during the third robbery from a phone number associated with Pulley. This was significant because the victim of the third robbery overheard the robber answer his cell phone during the course of the robbery and say to the caller, "we're good in here," J.A. 419,^* suggesting that he was speaking with an accomplice.

The day after the fourth robbery, which took place on October 12, 2017, Norfolk police secured and executed search and arrest warrants related to Blunt. Certain items retrieved pursuant to these warrants confirmed Blunt's involvement in the robberies, including a large amount of prescription narcotics in bottles with markings consistent with a description provided by the fourth victim, a magazine with ammunition in it, and clothing considered to be identical to clothing worn during the fourth robbery. When Blunt was first interrogated by police, he adamantly denied his involvement in the robberies and only admitted to selling pharmaceuticals. The investigative team, and Detective Howard in particular, did not believe this to be true.

While in his holding cell, Blunt hid a distinctive, purple gun (of the same caliber as the ammunition and magazine retrieved pursuant to the search warrant and likely used during the fourth robbery) behind the toilet. When police confronted Blunt about the gun upon its discovery several days later, Blunt denied knowledge of it, despite video footage. Detective Benshoff was assigned the task of listening to phone calls made by Blunt while he was in police custody. During one such call, Blunt told a friend that he threw out some clothes that were going to be important and that he needed those items retrieved and set aside. Detective Howard later included those statements in an investigative file, but testified that she was unaware of that detail when she drafted her search-warrant affidavit.

Police eventually interrogated Blunt a second time. During this conversation, Blunt implicated Pulley in all four robberies and told detectives that Blunt could lead them to the location where Pulley stashed clothes worn during the fourth and final robbery. Before drafting and obtaining various search warrants related to Pulley, Detective Howard was informed by a colleague that Pulley was in jail during the time the two 2016 robberies took place. At the time she heard this, Detective Howard had serious doubts about the information's accuracy and nevertheless still believed Pulley was involved in the robberies.

Detective Howard applied for and obtained several search warrants related to Pulley. The affidavit in support of the various warrants stated that co-suspect and defendant Blunt "has provided information found to be credible by detectives." J.A. 53. The affidavit did not indicate that it was Blunt who disposed of clothing worn during the robberies, not Pulley, that Pulley was believed by one officer to be incarcerated during the two 2016 robberies, or that Blunt denied knowledge of the distinctive, purple gun found in his holding cell.

Pulley was federally indicted in August 2018 for possession with intent to distribute several varieties of controlled substances. Following the denial of Pulley's motion to suppress after a two-day hearing pursuant to Franks v. Delaware , he entered a conditional guilty plea to possession with intent to distribute a quantity of hydrocodone in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), preserving his right to appeal the denial of the motion. Pulley timely appealed his conviction.

II.

A.

In reviewing the denial of a motion to suppress, "we review legal conclusions de novo and factual findings for clear error." United States v. Seerden , 916 F.3d 360, 365 (4th Cir. 2019) (citation omitted). "In doing so, we consider the evidence in the light most favorable to the Government." Id. This court must also "give due weight to inferences drawn from those facts by resident judges and law enforcement officers." United States v. Wharton , 840 F.3d 163, 168 (4th Cir. 2016) (internal quotation marks and citation omitted).

"When reviewing factual findings for clear error, we particularly defer to a district court's credibility determinations, for it is the role of the district court to observe witnesses and weigh their credibility during a pre-trial motion to suppress." United States v. Palmer , 820 F.3d 640, 653 (4th Cir. 2016) (internal quotation marks, brackets, and citation omitted). Thus a "court reviewing for clear error may not reverse a lower court's finding of fact simply because it would have decided the case differently. Rather, a reviewing court must ask whether, on the entire evidence, it is left with the definite and firm conviction that a mistake has been committed." United States v. Wooden , 693 F.3d 440, 451 (4th Cir. 2012) (internal quotation marks, brackets, and citation omitted).

In this regard, "[a]n accused is generally not entitled to challenge the veracity of a facially valid search warrant affidavit" by way of a motion to suppress. United States v. Allen , 631 F.3d 164, 171 (4th Cir. 2011). In its decision in Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), however, the Supreme Court "carved out a narrow exception to this rule, whereby an accused is entitled to an evidentiary hearing on the veracity of statements in the affidavit." Allen , 631 F.3d at 171. Under Franks , a defendant is entitled to suppression of evidence seized if, during the evidentiary hearing, "perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause." Franks , 438 U.S. at 156, 98 S.Ct. 2674. Defendants also may bring Franks challenges when the affiant has omitted material facts from the affidavit. Wharton , 840 F.3d at 168. "To establish a Franks violation, a defendant must prove that the affiant either intentionally or recklessly made a materially false statement or that the affiant intentionally or recklessly omitted material information from the affidavit." Id. Franks thus has two distinct prongs, "requir[ing] proof of both intentionality and materiality." Id.

B.

We address the legal standards that apply to the Franks intentionality prong. On appeal, Pulley does not challenge the district court's finding that the affiant neither made false...