US v. Pulley: Although Pulley was ultimately charged with possession with intent to distribute hydrocodone (and pleaded guilty to that offense), he came to the attention of law enforcement while they investigated a series of pharmacy robberies. An informant had identified another man, Blunt, as one of the men involved in the robbery. The informant also identified the other person as Blunt's cousin called "Cuz." Blunt and Pulley weren't related, but "grew up together and were like family." Blunt was arrested and managed to hide a "distinctive, purple gun" (which matched the caliber used in the last robbery) in his cell, denying any knowledge of it when it was found (despite video evidence to the contrary). Blunt was also overheard in a jail call telling a friend he "threw out some clothes that were going to be important and that he needed those items retrieved and set aside."
Blunt eventually began cooperating with police, naming Pulley as his accomplice and explaining that he could take police to the location where Pulley had discarded the clothes worn in the last robbery. The investigating officer was told that Pulley had been in jail when the first two robberies took place and began to have "serious doubts about the information's accuracy," but "nevertheless believed Pulley was involved in the robberies." Thus, a search warrant was obtained based on an affidavit that stated that Blunt "had provided information found to be credible by detectives" and did not mention that Blunt disposed of the clothing, that Pulley was in jail during two of the robberies, or that Blunt had smuggled the distinctive gun into the jail. As a result of the warrant, Pulley was charged with a drug offense and pleaded guilty after his motion to suppress was denied following a two-day Franks hearing.
On appeal, a divided Fourth Circuit affirmed the denial of Pulley's motion to suppress. Noting that Pulley "does not challenge the district court's finding that they affiant neither made false statements nor omitted information from her affidavit with the intent to mislead the state magistrate who issued the search warrants," the court went on to conclude that he did not meet his burden of provide that the falsehoods and omitted information were made with reckless disregard of whether it would make the affidavit misleading. In doing so, the court noted that "[r]eckless disregard is a subjective inquiry; it is not negligence nor even gross negligence." The court also made clear that it reviews the district court's conclusions on recklessness for clear error. The court also observed that "the affiant did not aver the suspect was credible in all matters."
Judge Keenan dissented, arguing that the record showed the recklessness required by the court and that the district court had failed to address all the alleged omissions.
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