Confidential informant's reliability omitted from search warrant affidavit

US v. Lull:  In this appeal of a felon in possession conviction, the Fourth Circuit considered the denial of a motion to suppress evidence obtained as the result of a search of the defendant’s residence, pursuant to a search warrant.  The application for the warrant, however, omitted material information about the reliability of the confidential informant, including the informant’s arrest on the same day that officers applied for the warrant.  That same day, the police had terminated the informant for lying to them and stealing some buy money used in a controlled buy with the defendant.

Before entering a plea, Lull moved to suppress evidence from his residence pursuant to the search warrant, arguing that the police obtained the warrant in violation of Franks v. Delaware.  From that case comes a two-prong test, both prongs must be proven by a preponderance of the evidence.  One, the defendant must show that an affiant included in the warrant application a false statement, knowing or intentionally or with reckless disregard for the truth; and two, that even without the false statement, the affidavit’s remaining content is insufficient to establish probable cause to search.  The Fourth Circuit has held that the two-prong Franks test applies also when an agent omits relevant facts from an affidavit.

The Fourth Circuit found here that the material about the confidential informant’s lack of reliability and his termination by the police was material, that the informant’s theft of buy money was not “separate” from the controlled buy as the government argued.  Further, the Court found that the investigating affiant omitted the information “at least recklessly,” and not through mere negligence or innocent mistake.  The Fourth Circuit held that the defendant should have won his Franks hearing, and vacated the defendant’s conviction and sentence, remanding for further proceedings.