March 24, 2016.
from the United States District Court for the Eastern
District of North Carolina, at Raleigh. (5:14-cr-00106-BO-1).
Terrence W. Boyle, District Judge.
Edward Zeszotarski, Jr., GAMMON, HOWARD & ZESZOTARSKI, PLLC,
Raleigh, North Carolina, for Appellant.
Benton Weede, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
G. Walker, United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior Circuit
Judge. Judge Duncan wrote the opinion, in which Judge Thacker
joined. Senior Judge Davis wrote an opinion concurring in
part and dissenting in part.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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 ...