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Every day law enforcement officers across the country are seeking search warrants. To do so, they often prepare a search warrant affidavit, or application, and provide it to a judicial officer for approval. The affidavit must establish probable cause that evidence of criminal activity will be found in the area to be searched or the judge will not approve the warrant. If the affidavit omits material information, the warrant may be found null and void and a defense attorney has a good chance of suppressing the fruits of the search.
Recently in United States v. Lull, an investigator omitted material information about the reliability of a confidential informant (CI). Because the investigator used information provided by the CI as the primary source of evidence establishing probable cause for the warrant, the Fourth Circuit Court of Appeals reversed the district court and granted Lull’s motion to suppress.
Drug enforcement often involves the use of CIs to perform controlled buys. The officers give the CI money and a recording device to go purchase drugs from a potential target, so they can build their case against the specific person or group. This case was no different. The investigator gave the CI money and a recording device to go purchase drugs from Lull. But after the CI returned from buying the drugs, he came back twenty dollars short. The CI tried to argue his way out of it, but the officers eventually strip searched him and the money fell out of his underpants. The officers terminated him as CI immediately and arrested him for stealing from the Sheriff’s Office. But, they did not disclose this information when applying for their search warrant of Lull. Moreover, the investigator from the Wake County Sheriff’s Office in North Carolina never worked with this particular CI before.
The federal court of appeals used the Franks test to determine whether the search warrant should be voided and the fruits of the search suppressed. This two-part test evaluates (1) whether “a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit”; and (2) “with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause.” The former requirement is also known as the “intentionality” prong and the former “materiality”. If a defendant satisfies both prongs by a preponderance of evidence at an evidentiary hearing, then the search warrant should be voided.
For the first prong – intentionality – the court of appeals determined the investigator was at a minimum reckless about omitting the CI’s attempt to steal money from the Sheriff’s Office and his subsequent firing and charging. On the second prong – materiality – the court determined those omissions were material.
At first blush, many defendants often believe they do not have a case to challenge. A close review of the facts and legal issues, however, can provide a defense. Drug cases often turn on whether a violation of the defendant’s Fourth Amendment right to be free from unreasonable searches and seizures occurs, which often includes attacking the search warrant itself.
Robert H. Ambrose is a criminal defense attorney in Minneapolis and St. Paul, Minnesota. He represents individuals charged with crimes in state and federal court. He is a Top 40 Under 40 Trial Lawyer; named a Rising Star by Super Lawyers; and a “Ten Best” Under 40 Criminal Attorney for Client Satisfaction. St. Paul MN Federal Criminal Defense Lawyer; Minneapolis Federal Criminal Defense Attorney; Criminal Lawyer St. Paul.
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