                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4216


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

ZACKARY ROBERT LULL,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:14-cr-00106-BO-1)


Argued:   March 24, 2016                   Decided:   May 25, 2016


Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Reversed, vacated, and remanded by published opinion.     Judge
Duncan wrote the opinion, in which Judge Thacker joined. Senior
Judge Davis wrote an opinion concurring in part and dissenting
in part.


ARGUED: Joseph Edward Zeszotarski, Jr., GAMMON, HOWARD &
ZESZOTARSKI, PLLC, Raleigh, North Carolina, for Appellant.
Patrick Benton Weede, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.      ON BRIEF: Thomas 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, Circuit Judge:

       Zackary 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.



                                             I.

       In May 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.

       In 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,

                                             2
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 assistance.

     The 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.

     Before 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.

                                  3
     During      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. 1

     After      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.

     Officers questioned the informant about the remaining $20.

The informant first responded that he did not know what the

     1 But see J.A. 103 (responding “[y]es, sir,” after being
asked on cross-examination “[y]ou said you couldn’t determine if
that was the defendant’s voice on the tape, correct?”).



                                            4
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 false pretenses.

       Following 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.

       Investigator         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

                                                5
        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.

      The 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


                                        6
no statement concerning the informant’s reliability or previous

experience      working    as       a    confidential      informant       for    the    Wake

Forest Police Department.

       Officers executed the warrant at 10:35 p.m. that night.

When     the    officers     searched         Lull’s       home,     there       were    five

individuals inside, including Lull.                        Officers seized cocaine,

marijuana,      firearms,       body       armor,    and    around    $3,600       in    U.S.

currency       during   their           search.      All    five     individuals         were

arrested and charged with state drug charges in connection with

the contraband found at the residence.



                                             II.

       On June 4, 2014, a grand jury in the Eastern District of

North Carolina indicted Lull on one count of possession with

intent    to    distribute      a       quantity    of   cocaine     and   marijuana       in

violation of 21 U.S.C. § 841(a)(1) (“Count One”), and one count

of possession of a firearm in furtherance of a drug trafficking

crime in violation of 18 U.S.C. § 924(c) (“Count Two”).                                 Before

entering a plea, Lull 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).

       In Franks, the Supreme Court developed a two-prong test

clarifying what a criminal defendant must show when challenging

                                              7
the veracity of statements made in an affidavit supporting a

search warrant.        If both prongs are met, the search warrant must

be    voided   and    the     fruits   of   the    search    excluded.         Franks,

438 U.S. at 155-56.           Under the first prong--the “intentionality”

prong--the defendant must show that “a false statement knowingly

and intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit.”                       Id.    Under

the   second   prong--the       “materiality”       prong--the     defendant        must

show that “with the affidavit’s false material set to one side,

the affidavit’s remaining content is insufficient to establish

probable cause.”        Id. at 156.         Both prongs must be proven by a

preponderance of the evidence.              Id.

       We have since held that the two-pronged Franks test applies

not only to cases in which an agent includes affirmatively false

statements in a warrant affidavit, but also when an agent omits

relevant facts from the affidavit.                  United States v. Colkley,

899 F.2d 297, 300 (4th Cir. 1990).                This provides the basis for

Lull’s    claims      here:     Lull    contends     that     in   the    affidavit

submitted      to     obtain        probable      cause,     Investigator        Welch

intentionally        and/or    recklessly       omitted    information    that      was

material to the determination of probable cause.

       The district court held a Franks hearing on November 20,

2014, and heard testimony from Investigator Welch and Sergeant

Richard   Spivey,      who    had    been   the   on-scene    supervisor       of    the

                                            8
controlled buy.      On November 23, 2014, the district court issued

an order denying Lull’s motion to suppress.                         The court concluded

that Investigator Welch’s conduct “did not rise to the level of

intentionally misleading or recklessly disregarding whether the

omission made the affidavit misleading.”                      United States v. Lull,

No. 5:14-CR-106-BO, 2014 WL 6666811, at *2 (E.D.N.C. Nov. 24,

2014).   Because Investigator Welch did not possess the requisite

intent, the court reasoned, there was no Franks violation and no

reason to suppress the evidence.

      Furthermore,    the      district         court    concluded         that   even    if

Investigator      Welch    had   possessed         the       requisite      intent,      the

omission would not have satisfied the Franks “materiality” prong

because including details about the informant’s theft, arrest,

and   discharge    from    service     would       not       have    defeated     probable

cause.   The court reasoned that,

      [r]egardless of with whom the informant spoke in the
      house, from whom he obtained the cocaine, and what he
      subsequently did with the buy money, 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.

Id. at *3.     According to the district court, the informant’s tip

was   “corroborated       by   the   fact       that    he    did,    in    fact,   obtain

contraband in the location identified in the search warrant.”

Id.   Thus, having found that Lull failed to satisfy either prong




                                            9
of the Franks test, the district court denied Lull’s motion to

suppress.

       In light of this ruling, Lull entered a conditional plea of

guilty to Count Two, possession of a firearm in furtherance of a

drug   trafficking      crime,    reserving      the   right   to    appeal   the

district court’s order denying his suppression motion.                   He was

sentenced to the statutory minimum of 60 months’ imprisonment on

Count Two, and the charges in Count One were dismissed.                       Lull

timely appealed.



                                       III.

       When reviewing a district court’s ruling on a motion to

suppress, “we review factual findings for clear error and legal

determinations de novo.”          United States v. Lewis, 606 F.3d 193,

197 (4th Cir. 2010) (citation omitted).                In doing so, “we must

construe     the    evidence     in   the    light   most   favorable   to    the

prevailing party and give due weight to inferences drawn from

those facts by resident judges and law enforcement officers.”

Id. (citation and internal quotation marks omitted).                     “[T]he

duty    of   a     reviewing   court    is    simply   to   ensure    that    the

magistrate had a substantial basis for . . . conclud[ing] that

probable cause existed.”          Illinois v. Gates, 462 U.S. 213, 238-

39 (1983) (second and third alterations in original) (citation

and internal quotation marks omitted).

                                        10
                                            IV.

     Lull’s argument on appeal focuses on the affidavit that

Investigator      Welch        submitted         in    support        of    the     warrant

application.           Lull          contends         that      Investigator             Welch

intentionally     or   recklessly           omitted        material    facts      from        the

affidavit and that, had those facts been included, the affidavit

would    not    have   supported        probable           cause.      Based       on        this

omission, Lull argues that, under Franks and its progeny, the

search of his home violated his Fourth Amendment rights.

     Under the Fourth Amendment, which applies to the states

through the Fourteenth Amendment, see Mapp v. Ohio, 367 U.S.

643, 655 (1961), “no Warrants shall issue, but upon probable

cause,    supported       by     Oath    or       affirmation.”             U.S.        Const.

amend. IV.       As mentioned above, in Franks, the Supreme Court

addressed the question of whether a criminal defendant has the

right    to    challenge       the   veracity         of    statements      made        in     an

affidavit supporting an application for a search warrant.                                     The

Court held that the defendant must first “make[] a substantial

preliminary      showing”       of    the     intentionality          and    materiality

prongs; if the defendant does so, “the Fourth Amendment requires

that a hearing be held at the defendant’s request.”                                 Franks,

438 U.S. at 155-56.            If the defendant is able to satisfy both

prongs by a preponderance of the evidence at this hearing, the

search warrant is voided.               Id. at 156.            In the context of an

                                            11
omission, we have found a Fourth Amendment violation only where

“affiants omit[ted] material facts with the intent to make, or

in     reckless      disregard         of    whether          they    thereby          made,    the

affidavit misleading.”                Colkley, 899 F.2d at 300 (citation and

internal quotation marks omitted).

       Below, we consider whether Lull has satisfied this test,

thus     warranting         suppression.              This     involves          two     separate

inquiries, even though they turn on overlapping facts.                                   We first

consider      whether      the       affiant     omitted        the     information        either

intentionally or with reckless disregard of whether it would

make    the    affidavit        misleading.            Concluding        that     Investigator

Welch was at least reckless in his omission, we turn to the

“materiality” prong of the Franks test.                               Because we conclude

that    this    omission         was    indeed         material,       we    hold       that    the

district court erred in denying Lull’s motion to suppress.

                                                 A.

       To establish the “intentionality” prong under Franks, Lull

must show by a preponderance of the evidence that Investigator

Welch    omitted      information            with      the     intent       to    mislead       the

magistrate      or    that      he    omitted         the    information         with    reckless

disregard of whether it would make the affidavit misleading.

Understandably,           the   defendant’s           burden     in     showing        intent    is

greater in the case of an omission because “[a]n affiant cannot

be     expected      to     include         in    an        affidavit       every       piece    of

                                                 12
information gathered in the course of an investigation.”                             Id.   A

showing that the officer acted negligently, or that the omission

was    merely      an   innocent      mistake,    is    insufficient         to    warrant

suppression.        Miller v. Prince George’s Cty., 475 F.3d 621, 627-

28 (4th Cir. 2007) (citing Franks, 438 U.S. at 171).

                                           1.

       In considering the intentionality prong, the district court

noted that “Investigator Welch testified that he deliberately

chose not to include the information at issue because, given

that the controlled buy was completed prior to the theft, he

believed the theft had no bearing on the purchase of narcotics

from defendant’s house.”               Lull, 2014 WL 6666811, at *2.                  Given

this, the court concluded that Investigator Welch’s “testimony

and    the    evidence      presented     do     not    suggest       that    he     either

intended      to    mislead     the    magistrate       or    acted     recklessly         in

omitting the theft.”             Id.     At the “very worst,” Investigator

Welch had acted negligently.                  Id. (quoting Colkley, 899 F.2d

at 301).

       We    cannot     agree   with    the     district      court.         Contrary      to

Investigator Welch’s contention, the informant’s theft was not

“separate” from the controlled buy.                    The informant demonstrated

that    he    was       unreliable      during    the        course    of     this     very

transaction.        Given this, how the informant’s “behavior and his

conduct in stealing that money” could have “absolutely nothing

                                           13
to    do   with    that    controlled          purchase,”        as    Investigator           Welch

contends, eludes us.             See J.A. 94.

       Although Investigator Welch asserts that the informant was

reliable     for     the       purposes       of     the   controlled           buy,    he     also

testified that the informant was “absolutely” determined to be

unreliable after the informant stole.                            J.A. 98-99.            However,

deeming the informant reliable for some purposes but unreliable

for others is an assessment that is for the magistrate, not

Investigator Welch, to make.                   See Franks, 438 U.S. at 165 (“It

is    established     law        that    a    warrant      affidavit        must       set   forth

particular facts and circumstances underlying the existence of

probable     cause,       so     as     to    allow    the   magistrate           to    make     an

independent evaluation of the matter.”) (citations omitted).                                    As

an    experienced     investigator,             Investigator          Welch      would       surely

know that reliability is “key” to a magistrate’s probable cause

analysis      when        the         search       warrant       application            contains

information       provided        by    an    informant.         See       United      States    v.

Wilhelm, 80 F.3d 116, 119 (4th Cir. 1996).

       We acknowledge that Investigator Welch dealt directly with

the    informant,         knew     of,       although      not    directly          about,      the

informant’s        previous        experience          working        as    a     confidential

informant for the Wake Forest Police Department, and listened in

on the conversation during the controlled buy.                                   However, the

magistrate can only make a probable cause determination based on

                                                14
the    information          that      was     actually     provided        to    him,     and

Investigator Welch failed to include any details, impressions,

or limitations related to these events in his affidavit.

       For these reasons, we find the district court’s reasoning

as to Investigator Welch’s intentionality unpersuasive.

                                               2.

       In reaching our conclusion that Investigator Welch omitted

this 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)        Investigator            Welch’s      knowledge        of       the

consequences         of     the     informant’s        crime;      (3)     the        temporal

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.           Together,

these factors are dispositive under the circumstances of this

case and show that Investigator Welch acted at least recklessly.

       First, to the rest of the Sheriff’s Office, the egregious

nature    of    the       informant’s         actions      was    clear.         This     was

demonstrated         by   the      informant’s        immediate     arrest       on    felony

charges and discharge from service.                    Second, as discussed above,

Investigator Welch knew at the time he filled out the affidavit

that    the    informant        had    been    discharged        because    he    had     been

deemed unreliable.              Despite this knowledge, Investigator Welch

                                               15
decided      for    himself   that    the   informant   was   reliable    for   the

purposes of the controlled buy, usurping the magistrate’s role.

Third, little time passed between the arrest and Investigator

Welch’s decision to omit this information from the affidavit.

These events transpired just minutes before Investigator Welch

drafted the warrant application, and they were undoubtedly fresh

in his mind.

       Finally, the omitted information was clearly relevant to

the    magistrate’s       probable     cause     determination.    One    way    of

establishing reckless disregard is by proffering “evidence that

a police officer ‘failed to inform the judicial officer of facts

[he]       knew   would   negate     probable    cause.’”     Miller,    475    F.3d

at 627 (alteration in original) (citations omitted); see also

United States v. Jacobs, 986 F.2d 1231, 1234-35 (8th Cir. 1993)

(“[T]he omission occurred at least with reckless disregard of

its effect upon the affidavit. . . . Any reasonable person would

have known that this was the kind of thing the judge would wish

to know.”).         The relevance of the omission thus comes into play:

the significance--or insignificance--of a particular omission to

the determination of probable cause may inform our conclusion

regarding         the   agent’s    intent. 2     The   trustworthiness    of    the


       2
       This court has previously noted in dicta that it has
“doubts about the validity of inferring bad motive under Franks
from the fact of omission alone, for such an inference collapses
(Continued)
                                            16
confidential   informant    lies   at      the    heart   of   the   reliability

determination, and so the relevance of this information should

have been obvious to Investigator Welch.               This is especially so

because the affidavit contained no other statement concerning

the   informant’s    credibility        or       experience    working    as    a

confidential informant.

      Given    the   unique    set      of       circumstances       surrounding

Investigator    Welch’s    decision     to   omit     this     information,    we

cannot conclude that Investigator Welch’s omission was an act of

mere negligence or an innocent mistake.              At the very least, Lull

has shown by a preponderance of the evidence that Investigator

Welch omitted the information with reckless disregard of whether

it would make the affidavit misleading to the magistrate.                 Thus,

we conclude that Lull has satisfied the intentionality prong of

the Franks test.




into a single inquiry the two elements--‘intentionality’ and
‘materiality’--which Franks states are independently necessary.”
Colkley, 899 F.2d at 301. We are mindful in this case to treat
each prong as a distinct inquiry, and we do not base our
conclusion on “the fact of omission alone.” Rather, we consider
this fact along with the broader circumstances in which the
affidavit was drafted.



                                      17
                                             B.

     We        next    consider     whether        the    omitted        information       is

“material” under Franks: that is, whether it was “necessary to

the finding of probable cause.”                    See Colkley, 899 F.2d at 301

(quoting       Franks,      438   U.S.     at   156).       In       Lull’s     view,     “the

credibility of the informant was paramount to the probable cause

analysis,” given that the only evidence identifying Lull as the

seller of the drugs in the affidavit came from an informant who

had been deemed unreliable.              See Appellant’s Br. at 21.

     We     assess      whether     Lull    has     established          the    materiality

prong     by     considering      the      “totality       of     the    circumstances,”

evaluating the affidavit as a whole and all circumstances set

forth within.          Colkley, 899 F.2d at 301-02; see Gates, 462 U.S.

at   233.         We    first     consider        the    effect      that      the    omitted

information           had   on    the      reliability          of      the     informant’s

information,          and   determine    that      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 that

there     remains       insufficient       information          from     which       to   find



                                             18
probable     cause.          Therefore,        we     conclude     that       the    omitted

information is indeed “material” under Franks.

                                           1.

      Much of the information included in Investigator Welch’s

affidavit came solely from the informant.                       When the information

forming the basis for probable cause comes from an informant,

the informant’s “veracity” and “reliability” are critical to the

totality of the circumstances test.                        Wilhelm, 80 F.3d at 119

(quoting Gates, 462 U.S. at 233).                    While these are not the only

factors     to    be      considered,     we        have   held    that       “a     judicial

officer’s    assessment        of   probable         cause . .     .     must      include   a

review of the ‘veracity’ and ‘basis of knowledge’ of persons

supplying        hearsay     information.”             United      States       v.      Perez,

393 F.3d 457, 461-62 (4th Cir. 2004) (emphasis added) (citations

and internal quotation marks omitted).

      In this case, that the omitted information seriously calls

into question the informant’s reliability is without doubt: the

Sheriff’s        Office     essentially        admitted      as        much     when,     upon

discovering the theft, it immediately discharged the informant.

Further, as noted above, when Investigator Welch was asked at

the   suppression         hearing   why    the       Sheriff’s      Office         made   this

decision,        he    responded    that       continuing         to     work      with    the

informant after the informant had lied to and stolen from the

Sheriff’s        Office     would   not    be        ethical.           Critically,        the

                                           19
affidavit          contained         no      other     information         relating       to    the

informant’s         reliability           and   failed      to    mention        his    experience

working as a confidential informant for the Wake Forest Police

Department.

       Investigator             Welch’s         omissions        therefore         prevented      a

neutral       magistrate          from    being      able   to    accurately           assess    the

reliability and the veracity, and thus the significance, of the

informant’s statements.                   See United States v. Glover, 755 F.3d

811,    814    (7th       Cir.       2014)    (concluding        that      an    affidavit      that

“omitted            all         information            regarding           the         informant’s

credibility . . . undermined the issuing magistrate’s ability to

perform       his    role       as    a   neutral      arbiter        of   probable      cause”).

Because       of    this,       we    cannot     now    rely     on    these      statements      in

assessing whether probable cause existed.                             See United States v.

Hall, 113 F.3d 157, 158 (9th Cir. 1997) (holding that a search

warrant based solely upon an informant’s claims lacked probable

cause     where           the     affidavit          omitted      “absolutely           critical”

information calling into question the informant’s credibility).

We therefore set aside the information provided exclusively by

the     informant           and       next      consider         whether         the     remaining

information supports a finding of probable cause.




                                                  20
                                     2.

     When the information provided by the informant is removed

from the affidavit, little remains.            We are left only with:

(1) the identification of the residence as belonging to a woman

with the last name “Lull”; (2) the fact of the controlled buy,

that is, that the informant went into the Lull residence without

cocaine    and   emerged   five   minutes    later    with   cocaine;    and

(3) that “through Investigative means, a conversation was heard

between    two   [unidentified]   males”    during   the   controlled    buy.

J.A. 40.     No information remaining in the affidavit identifies

Lull specifically as the seller or otherwise connects him to the

drug transaction. 3

     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.”      Lull, 2014 WL 6666811, at *3.          We disagree.

While the occurrence of the controlled buy is certainly relevant



     3 In evaluating whether probable cause would have existed if
the omitted statements had been included, we only consider “the
information actually presented to the magistrate during the
warrant application process.” Owens ex rel. Owens v. Lott, 372
F.3d 267, 277 (4th Cir. 2004) (citation omitted). We therefore
do not consider any additional facts that Investigator Welch
testified to during the suppression hearing, including that
Investigator Welch recognized the voice of the other individual
heard speaking during the controlled buy as Lull, because this
information was not presented to the magistrate.



                                     21
to the probable cause determination, this is just one fact to be

considered       against         the    totality       of    the     circumstances.              See

United States v. Khounsavanh, 113 F.3d 279, 285 (1st Cir. 1997)

(“Because      of     the      importance        of   Fourth       Amendment       freedoms       to

every American, and because of the fact[-]specific nature of the

probable cause inquiry, we reject the government’s contention

that a controlled buy should be per se sufficient to establish

probable cause.”) (citation omitted).                             In the circumstances of

this     case,      this       evidence,         by    itself,       is     insufficient         to

establish probable cause.

       Our    circuit       has    long     followed        the     rule    that       “the    nexus

between the place to be searched and the items to be seized may

be   established          by     the    nature        of    the     item    and     the       normal

inferences       of       where    one     would       likely       keep    such       evidence.”

United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993)

(quoting United States v. Anderson, 851 F.2d 727, 729 (4th Cir.

1988)).       In previous drug trafficking cases, we have found the

nexus requirement satisfied when there was evidence that the

suspect was involved in the crime, coupled with “the reasonable

suspicion      .      .    .     that     drug    traffickers         store        drug-related

evidence in their homes.”                  United States v. Williams, 548 F.3d

311,   319     (4th       Cir.    2008)     (collecting           cases).         As    mentioned

above,       this     “reasonable          suspicion”         is     exactly       that       which

Investigator        Welch        relied    upon       in    his    affidavit:          that    “drug

                                                 22
traffickers    very     often   keep   the       aforementioned            items    readily

accessible     such     as    in    their        residences          and    businesses.”

J.A. 41.

       But this inference is contingent on the connection between

the    drug   trafficker      and   his     or       her      residence.          From     the

remaining information in the affidavit, essentially all we know

is that cocaine was purchased from a man in a residence that may

have    belonged   to    Lull’s     mother.              We   do    not    have    reliable

information about who this man was, whether he resided there, or

if he was alone in the residence.                        Although the investigators

personally witnessed the informant go in with money and come out

with drugs, they relied on the informant’s word alone that the

seller was Lull.        This lack of information about the identity of

the seller creates an obvious problem: if a non-resident had

been the individual who had sold drugs to the informant--if Lull

was not the drug trafficker--there would be no reason to believe

that, hours later, there would be drug contraband or financial

records of drug transactions in Lull’s residence.                             See United

States v. Suarez, 906 F.2d 977, 984 (4th Cir. 1990) (“Probable

cause    to   search    exists      when    .        .    .   the    totality       of     the

circumstances[]       are    sufficient         to   lead      a    prudent       person    to

believe that the items sought . . . will be present at the time

and place of the search.”) (emphasis added) (citation omitted).



                                           23
      As    the       Supreme      Court       has   repeatedly           emphasized,         the

“physical entry of the home is the chief evil against which the

wording of the Fourth Amendment is directed.”                               Payton v. New

York, 445 U.S. 573, 585 (1980) (quoting United States v. United

States District Court, 407 U.S. 297, 313 (1972)).                                   Because of

this, when reviewing cases such as the one before us, we must

satisfy ourselves that “the magistrate had a substantial basis

for . . . conclud[ing] that probable cause existed.”                                      Gates,

462 U.S.    at        238-39     (alterations        in   original)         (citation         and

internal quotation             marks     omitted).        In   this       case,      given    the

unusual degree of reliance on the informant and the near-total

lack of corroborating evidence, this standard has not been met.

Cf.   Glover,     755       F.3d   at    818    (“[O]mission         of    an       informant’s

criminal    background           and    financial     motive       is     not       necessarily

essential    to       the   probable      cause      determination         .    .    .   in   the

context    of     a     detailed       affidavit      that     had      been        extensively

corroborated.”) (citation and internal quotation marks omitted).

The connection between Lull and the drugs is too tenuous to

support a finding of probable cause to search his residence.

                                               3.

      In light of the above, the omitted information bearing on

the   credibility           of     the     informant         was     material            to   the

magistrate’s finding of probable cause, and we conclude that



                                               24
Lull has established the materiality prong of the Franks test by

a preponderance of the evidence.



                                     V.

       Because Lull has shown by a preponderance of the evidence

that    Investigator    Welch    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,

Lull has established a violation of his Fourth Amendment rights

under Franks v. Delaware.          Therefore, the district court erred

in   denying   Lull’s    suppression       motion.   The    ruling      of   the

district court is accordingly reversed, Lull’s conviction and

sentence vacated, and the case remanded for further proceedings

consistent with this opinion.

                                           REVERSED, VACATED, AND REMANDED




                                     25
DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:

      I     concur     in    the     majority     opinion’s     holding     that     the

district court clearly erred in finding that Investigator Welch

did   not    intentionally         or    recklessly      omit    from    the   warrant

affidavit the circumstances surrounding the informant’s attempt

to steal twenty dollars 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 holding that the

omitted      information       was      “material”     and    therefore     that     its

absence defeated probable cause to search the Lull residence.

      Magistrates        and    judges,        state   and    federal,    know       from

experience and common sense that drug abusers who cooperate with

law   enforcement           officers     are     notoriously     unreliable        human

beings, burdened as they typically are with barely manageable

affronts     to   their      inherent     human    dignity,     including      but   not

limited      to      addictions,        debts     incurred      to   service       those

addictions, and criminal convictions, all coupled with dissolved

and dissolving family and personal relationships.                        Investigator

Welch should have disclosed the informant’s post-controlled-buy

arrest and the reasons for it; as the majority opinion cogently

explains, his excuse for not doing so cannot be credited.                            But

even if he had made the disclosure, no judge with experience

issuing warrants would have refused to issue the search warrant


                                            26
in this case.      Cf. United States v. Allen, 960 F.2d 1055, 1057

(D.C. Cir. 1992) (holding that an informant’s controlled buy of

crack    cocaine   constituted   probable   cause    for   issuance   of    a

search    warrant),   cited   with   approval   in    United   States      v.

Clyburn, 24 F.3d 613, 618 (4th Cir. 1994).

     Respectfully, I dissent, in part.




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