UNITED STATES v. LULL, NO. 15-4216

Decided: May 25, 2016

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, the Fourth Circuit reversed the district court’s denial of Lull’s motion to suppress, vacated his conviction and sentence, and remanded for further proceedings.

In May 2014, one of the Wake Forest Police Department’s confidential informants asserted that he was able to buy illegal drugs from Lull in Lull’s home.  In following up, Investigator 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.  The investigator arranged for the informant to buy cocaine from Lull during a controlled buy.  The Sheriff’s Office corroborated some of the informant’s information prior to conducting the controlled buy.  The informant conducted the controlled buy.  Back 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.  When questioned about the money, the informant said he though he gave the money to Lull.  A strip-search revealed that the $20 was hidden in the informant’s underpants.  The Sheriff’s Office immediately determined that the informant was not reliable and terminated him as a confidential informant.  The officers arrested the informant on a felony charge of obtaining property under false pretenses.  Investigator Welch obtained a search warrant for Lull’s house, but he failed to disclose the informant’s theft and arrest to the state court magistrate.  When officers searched Lull’s home, they found cocaine, marijuana, firearms, body armor, and around $3,600 in U.S. currency.  All five individuals inside the house at the time were arrested in connection with drug charges.  A grant 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, and one count of possession of a firearm in furtherance of a drug trafficking crime.

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).  This case created a two-prong test to clarify 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.  Under the first prong, “intentionality”, 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.  Under the second prong, “materiality”, the defendant must show that with the affidavit’s false material set to the one side, the affidavit’s remaining content is insufficient to establish probable cause.  Lull contended 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 entered an order denying Lull’s motion to suppress.  On appeal, the Fourth Circuit held that Investigator Welch was at least reckless in his omission of facts regarding the informant.  Furthermore, the omission was indeed material.

Because Lull showed 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 established a violation of his Fourth Amendment rights under Franks v. Delaware.  Therefore, the Fourth Circuit held that the district court erred in denying Lull’s suppression motion.  The ruling of the district court was reversed, Lull’s conviction and sentence vacated, and the case remanded for further proceedings.

Full Opinion

Katie E. Lowery

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