Franks Challenge Denied Despite Reckless Omission of Evidence
The U.S. Court of Appeals for the Fourth Circuit recently found that the reckless omission of facts regarding an individual’s confinement to certain living areas of a residence did not prevent a finding of probable cause that the individual conducted criminal activity in other areas of the home.
Joeann Wharton’s two grandchildren, Chaquiera and Essence Wharton, moved into her home on Utrecht Road in Baltimore, Maryland with her after their mother passed away in 2002. Joeann applied for and received Social Security survivors’ benefits on behalf of her grandchildren, creating an obligation that she spends those funds for her grandchildren’s care.
In July 2012, the government learned that the grandchildren were not receiving the benefits provided to Joeann and had not lived with Joeann since 2009. The government launched an investigation on Joeann’s use of the survivors’ benefits, headed by Special Agent Mark Gray of the Social Security Administration. Agent Gray reviewed state and federal records and interviewed Joeann’s two grandchildren, her children, her husband John, and Joeann. Agent Gray uncovered other evidence of potential fraudulent activity involving government benefits as well.
On January 31, 2013, a federal grand jury indicted Joeann on two counts of theft of government property in violation of 18 U.S.C. § 641 and 42 U.S.C. § 1383a(a)(3). On June 27, 2013, the grand jury issued a sealed superseding indictment, which was unsealed on July 10, 2013. The superseding indictment charged both Joeann and her husband, John, with multiple counts involving conspiracy to embezzle, embezzlement, and making false statements to obtain government benefits.
On July 1, 2013, Agent Gray sought a search warrant of the Utrecht Road house to obtain evidence about John. In the affidavit, Agent Gray set forth substantial evidence of criminal activity by John and asserted that John and Joeann lived together at the Utrecht Road house. The affidavit mostly outlined the nature of the activity, but made the following representations as to the living arrangements in the three level house – that Joeann and John were interviewed together at the house, that Joeann and John stated they “lived together,” that the gas and electricity company provided power to the entire house under John’s name, and that the cable provider provided cable service to the entire house in both Joeann’s and John’s names. A magistrate judge issued the search warrant. When executing the warrant, Agent Gray uncovered a number of documents relevant to the charges against John and Joeann.
Prior to trial, Joeann moved to suppress all the evidence obtained in the search. Joeann argued that Agent Gray recklessly omitted material exculpatory evidence from the affidavit. In particular, Joeann argued that the affidavit failed to mention that John lived only in the basement of the house. The district court held a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to consider the omissions. The district court found that Agent Gray was informed through various sources that John lived in the basement while Joeann occupied the upstairs floor. Although the district court found that Agent Gray recklessly omitted this information from his affidavit, it was not material, and its omission did not violate the Fourth Amendment. Therefore, the district court denied the suppression motion.
The jury then convicted Joeann of Social Security fraud, and convicted both Joeann and John of conspiracy to embezzle money from the United States, two counts of making false statements to the Social Security Administration, and two counts of embezzlement from the United States. Joeann appealed her convictions to the U.S. Court of Appeals for the Fourth Circuit. She contended that the district court should have suppressed the evidence found at her home because the affidavit recklessly omitted material, exculpatory facts.
“To establish a Franks violation, a defendant must prove that the affiant either intentionally or recklessly made a materially false statement or that the affiant intentionally or recklessly omitted material information from the affidavit.” The court of appeals only needed to consider the materiality requirement because the district court already demonstrated that the affidavit recklessly omitted information regarding John’s occupation of the basement of the home.
In assessing materiality, courts insert the facts recklessly omitted, and then determine whether or not the corrected warrant affidavit would establish probable cause. If the corrected warrant establishes probable cause, no Franks violation exists. Thus, the court stated that Joeann was required to show that the totality of both the facts Agent Gray provided in his affidavit and the facts he omitted did not signal a fair probability that evidence of John’s crime would be found in the common areas of the home.
Here, the court of appeals found that the inclusion of the omitted information did not undermine the foundational core of the affidavit because the corrected affidavit still included unchallenged information establishing probable cause. Joeann’s and John’s statement that they lived together in the house created fair probability that a search of the common areas of the house would contain evidence of John’s crimes. The bills for shared gas and electric service and cable service also supported the court’s conclusion. Regardless, nothing in the omitted information demonstrated that John lacked access to the common areas of the house. As such, the court of appeals held that even if corrected, the affidavit provided the magistrate judge with a substantial basis that probable cause existed to conclude that John would utilize the common areas of the home and leave in them evidence of criminal activity.
Read the full case: United States v. Wharton
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