United States v. Zackary Lull
2016 U.S. App. LEXIS 9569
| 4th Cir. | 2016Background
- In May 2014 a confidential informant (CI) told Wake Forest police he could buy cocaine from Zackary Lull at a Rolesville residence; police arranged a controlled buy.
- The CI entered the residence, emerged about five minutes later, and later surrendered 4 grams of cocaine; officers observed behavior suggesting concealment and returned buy money short $20.
- The CI was strip-searched after officers discovered $20 in his undergarments, immediately arrested for theft, and discharged as an informant; Investigator Welch prepared a search-warrant affidavit shortly thereafter but did not disclose the CI’s theft/arrest to the magistrate.
- Welch’s affidavit recounted the controlled buy, confirmed the residence, and stated a conversation between two males was overheard, but omitted that the seller identified himself as “Zack,” omitted that Welch could identify the voice as Lull, and omitted the CI’s theft/arrest and lack of reliability.
- A warrant was issued; the search of Lull’s home recovered drugs, firearms, body armor, and cash; Lull was federally indicted, moved to suppress under Franks, lost in district court, pleaded conditional guilty to a § 924(c) count, and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the affiant omitted material facts intentionally or recklessly (Franks intentionality) | Welch omitted CI’s theft/arrest and discharge from informant status with at least reckless disregard, undermining affidavit truthfulness | Welch omitted because the theft occurred after the buy and did not affect the controlled-buy reliability; omission was at most negligent | Court: Welch acted at least recklessly in omitting CI’s theft/arrest and discharge; intentionality prong met |
| Whether the omission was material to probable cause (Franks materiality) | CI credibility was central; with CI-based statements removed, affidavit lacked information tying Lull to the seller or to contraband at the residence | The controlled buy alone and corroboration of the residence established a fair probability of finding contraband despite omission | Court: Omission was material; removing CI-dependent statements leaves insufficient probable cause to search Lull’s home |
| Whether the remaining corroboration (controlled buy, residence ownership) established nexus for a search | Lull: remaining facts do not reliably identify seller or connect seller to residence; nexus absent | Govt: controlled buy and location corroboration alone support a reasonable inference contraband would be at the residence | Court: Nexus too tenuous given omission; controlled buy alone insufficient here |
| Remedy | Suppression and vacatur required if Franks prongs met | Warrant should stand; evidence admissible | Court: Reversed denial of suppression, vacated conviction and sentence, remanded for further proceedings |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (establishes two-prong test for false statements/omissions in warrant affidavits)
- Illinois v. Gates, 462 U.S. 213 (totality-of-circumstances probable cause standard)
- United States v. Colkley, 899 F.2d 297 (4th Cir. rule applying Franks to omissions)
- United States v. Wilhelm, 80 F.3d 116 (importance of informant veracity and basis of knowledge)
- Mapp v. Ohio, 367 U.S. 643 (application of Fourth Amendment to states)
- Payton v. New York, 445 U.S. 573 (sanctity of the home and warrant requirement)
- United States v. Lalor, 996 F.2d 1578 (nexus inference for contraband in residences)
- United States v. Suarez, 906 F.2d 977 (probable cause must support belief items sought will be at place searched)