Criminal Practice – Search Warrant Application Omitted Informant Theft

U.S. v. Lull (Lawyers Weekly No. 001-095-16, 27 pp.) (Duncan, J.) No. 15-4216, May 25, 2016; USDC at Raleigh, N.C. (Boyle, J.) 4th Cir.

Holding: Because a search warrant application failed to disclose that the confidential informant –  who was the primary source of the information used to establish probable cause – had just been arrested for his theft of money that police had provided for a drug buy, the 4th Circuit reverses denial of defendant’s motion to suppress, vacates his firearm possession conviction and remands the case.

Before entering a conditional plea of guilty, defendant 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). After a Franks hearing, the district court denied the motion.

At the hearing, the investigator testified that he omitted the information about the theft of the money because the controlled buy had been completed when the theft occurred and he believed the theft had no bearing on the narcotics purchased from defendant’s house. Contrary to the investigator’s contention, the informant’s theft was not “separate” from the controlled buy. The informant demonstrated he was unreliable during the course of this very transaction. Deeming the informant reliable for some purposes but unreliable for others is an assessment for the magistrate, not the investigator, to make.

In concluding the investigator omitted the 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) the investigator’s knowledge of the consequences of the informant’s crime; 3) the temporary 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.

Insufficient information

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 there remains insufficient information from which to find probable cause.

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.” We disagree. While the occurrence of the controlled buy is certainly relevant to the probable cause determination, this is just one fact to be considered against the totality of the circumstances. Essentially all we know is that cocaine was purchased from a man in a residence that may have belonged to defendant’s mother. The police relied on the informant’s word alone that the seller was defendant. If a non-resident had been the seller, there would be no reason to believe that, hours later, there would be drug contraband or financial records of drug transactions in defendant’s residence. The connection between defendant and the drugs is too tenuous to support a finding of probable cause to search his residence.

Because defendant has shown by a preponderance of the evidence that the investigator 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, defendant has established a violation of his Fourth Amendment rights under Franks.

Reversed, vacated and remanded.

Concurrence & Dissent

Davis, S.J.: I concur in the majority opinion’s holding that the district court clearly erred in finding that the investigator did not intentionally or recklessly omit from the warrant affidavit the circumstances surrounding the informant’s attempt to steal $20 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 the holding that the omitted information was “material” and therefore that its absence defeated probable cause to search defendant’s residence.

Even if the investigator had made the disclosure about the informant, no judge with experience issuing warrants would have refused to issue the search warrant in this case. Respectfully, I dissent in part.