United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
This case involves allegations that defendants Joeann and John Wharton engaged in criminal misconduct from 1996 to 2012, in connection with their improper receipt of various types of Social Security benefits. Joeann Wharton was initially indicted on January 31, 2013 (ECF 1), and charged in two counts: theft and conversion of SSI program benefits, in violation of 18 U.S.C. § 641 (Count One), and fraud in connection with receipt of Social Security disability benefits, under 42 U.S.C. § 1383a(a)(3) (Count Two). In an eight-count Superseding Indictment filed on June 27, 2013 (ECF 19), Ms. Wharton's husband, John Wharton, was added as a defendant, and additional charges were included, all related to or arising from the alleged unlawful receipt of various types of Social Security benefits.
The Whartons were married in 1970, when Ms. Wharton was 16 years of age and Mr. Wharton was 29. Although they have never divorced, the status of their marriage and the details of their living arrangements during the relevant time period are central to the case and have been vigorously contested.
Several motions are pending. Ms. Wharton has moved to suppress evidence recovered during execution of a search warrant on July 2, 2013, for a single family, two-story row home owned by defendants and located on Utrecht Road in Baltimore. Ms. Wharton contends that the warrant was obtained in violation of her rights under the Fourth Amendment to the United States Constitution. Defendants have also moved to suppress statements they made to two agents from the Social Security Administration's Office of the Inspector General during an interview at the Whartons' home on August 27, 2012. They argue that the statements were made involuntarily and that introduction of the statements at trial would violate their rights under the Fifth Amendment to the United States Constitution.
A number of filings by the parties are relevant to the issues at hand. In particular, Ms. Wharton filed a Motion to Suppress Statements (ECF 9); a Consolidated Pretrial Motion (ECF 37); a Reply in support of the Consolidated Pretrial Motion (ECF 60); a Prehearing Memorandum (ECF 111); and a Statement of Points and Authorities (ECF 125). In addition to adopting all of Ms. Wharton's motions (ECF 34), Mr. Wharton also filed a Motion to Suppress Statements (ECF 35); a Reply in support of his Motion to Suppress (ECF 61); and a Supplemental Brief regarding the August 27, 2012 statements (ECF 126). The government's filings are at ECF 43, ECF 64, and ECF 114.
The Court conducted an evidentiary hearing on June 2 and June 3, 2014. The Court heard testimony from the defendants' adult children, Lasean Wharton ("Lesean") and Tasha Wharton Muriel, and the defendants' granddaughters, Chaquiera Wharton, now 18, and Essence Wharton, now 21, as well as Special Agent Mark Gray from the Social Security Administration's Office of the Inspector General. Oral argument was presented on July 1, 2014.
This Memorandum Opinion reflects the Court's findings of fact and conclusions of law, in accordance with Fed. R. Crim. P. 12(d).
A. Search Warrant
On July 1, 2013, the government applied for a search warrant for defendants' Utrecht Road home, seeking evidence relating to crimes allegedly committed by Mr. Wharton. At that point, the Superseding Indictment had been filed but not yet unsealed. See ECF 19, 23, 24. Agent Gray submitted an Affidavit in support of the search warrant application. ECF 114-1 ("Gray Aff.") ¶ 3. Attachment B to the warrant application described the items to be seized, which were items relating to Mr. Wharton's alleged use of a false identity ( i.e., the identity of James Wharton) to obtain Social Security benefits. The warrant application did not seek items belonging to Joeann Wharton. Magistrate Judge Stephanie Gallagher approved the search warrant application on the same day. ECF 114-1. The search warrant was executed the next day, July 2, 2013. According to the defense, the government searched all three floors of the Wharton home and seized documents on the first and second floors that related to both John and Joeann Wharton. ECF 111 at 3.
Ms. Wharton claims that Agent Gray omitted material information from his Affidavit that, if included, would have defeated probable cause to search the first and second floors of the house. See Franks v. Delaware, 438 U.S. 154 (1978). In particular, Ms. Wharton maintains that she and Mr. Wharton, although legally married, were estranged and occupied separate areas of the house, with Ms. Wharton living on the first and second floors of the house and having her own bedroom, and Mr. Wharton living in the basement. Moreover, Ms. Wharton insists that the government, including Agent Gray, was aware of the Whartons' living arrangements, and intentionally or recklessly omitted information about the living arrangements from Agent Gray's Affidavit. According to Ms. Wharton, Judge Gallagher would not have found probable cause to search the first and second floors of the house had the Affidavit included the omitted information.
Before addressing the parties' contentions, I pause to review the law that frames a challenge to a facially valid search warrant.
"An accused is generally not entitled to challenge the veracity of a facially valid search warrant affidavit." United States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011). However, the Supreme Court established a narrow exception to this rule in the seminal case of Franks v. Delaware, 438 U.S. 154 (1978). Franks established that, under limited circumstances, an accused is entitled to an evidentiary hearing concerning the veracity of statements in an affidavit. In order to obtain an evidentiary hearing regarding the integrity of an affidavit, a defendant must first make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Id. at 155-56. As the Supreme Court said, this showing "must be more than conclusory, " and "must be accompanied by an offer of proof.... Allegations of negligence or innocent mistake are insufficient." Franks, 438 U.S. at 171; see United States v. Shorter, 328 F.3d 167, 170 (4th Cir. 2003). So, "where police have been merely negligent in checking or recording the facts relevant to a probable-cause determination, " it is not enough for a Franks hearing. Franks, 438 U.S. at 170.
Second, the false information must be essential or material to the probable cause determination. Id. at 171-72. In other words, the defendant must make an initial showing that, without those false statements, the affidavit cannot support the finding of probable cause. United States v. McKenzie-Gude, 671 F.3d 452, 462 (4th Cir. 2011); United States v. Clenney, 631 F.3d 658, 663 (4th Cir. 2011). On the other hand, if the allegedly false statements are not necessary for the probable cause finding, the accused is not entitled to a Franks hearing. Franks, 438 U.S. at 155-156; see also United States v. Doyle, 650 F.3d 460, 468 (4th Cir. 2011) (stating that "false information will only void a warrant if the information was necessary to the finding of probable cause").
Of relevance here, Franks also applies when an affiant omits material facts "with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading.'" United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (citation omitted). See United States v. Cioni, 649 F.3d 276, 286 (4th Cir. 2011) ("[O]missions can, in certain circumstances, give rise to a Franks hearing...."). But, "[m]erely identifying factual omissions is insufficient." Clenney, 631 F.3d at 664. To be material under Franks, an omission must be "necessary to the finding of probable cause." Franks, 438 U.S. at 156; Colkley, 899 F.2d at 301. So, "to obtain a Franks hearing, the defendant must show that the omissions were designed to mislead, or... made in reckless disregard of whether they would mislead ' and that the omissions were material, meaning that their inclusion in the affidavit would defeat probable cause.'" Clenney, 631 F.3d at 664 (quoting Colkley, 899 F.2d at 301) (emphasis in Clenney ). In Colkley, the Fourth Circuit said, 899 F.2d at 301: "For an omission to serve as the basis for a hearing under Franks, it must be such that its inclusion in the affidavit would defeat probable cause...."
If the defendant is granted a Franks hearing and the defense establishes the affiant's material perjury or recklessness by a preponderance of the evidence, the offending portion of the warrant "must be voided' and evidence or testimony gathered pursuant to it must be excluded." Colkley, 899 F.2d at 300 (quoting Franks, 438 U.S. at 156). In other words, the defense must establish, through testimony and evidence, the facts it proffered in order to justify the Franks hearing. If those facts are established by a preponderance of the evidence, the evidence gathered pursuant to the invalid portion of the warrant must be excluded.
Several cases elucidate the Franks analysis. In Colkley, 899 F.2d 297, a bank robbery case, the defendant, Johnson, complained that the district court should have suppressed his post-arrest incriminating statements, because the affidavit in support of the arrest warrant did not recount that six eyewitnesses who were shown a photospread that included Johnson failed to identify Johnson as one of the robbers. In addition, he complained because the agent based the composite height description of the vault robber, who was allegedly Johnson, on the testimony of only one witness, disregarding other witnesses who described the vault robber as shorter than as depicted in the affidavit. On this basis, Johnson requested and actually received a hearing under Franks.
The Fourth Circuit disagreed with the district court's conclusion that a Franks hearing concerning the integrity of the affidavit was required in the first instance. The Colkley Court observed that any decision to omit information from an affidavit is, in some sense, intentional. 899 F.2d at 300. It reasoned that if, as the district court in Colkley had concluded, the information need only to have been omitted knowingly, Franks ' intentionality requirement would be satisfied in virtually every case. Id. The Colkley Court said: " Franks clearly requires defendants to allege more than intentional' omission in this weak sense." Id. at 301. Instead, said the Court, " Franks protects against omissions that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate.... To obtain a Franks hearing, the defendant must show that the omission is the product of a deliberate falsehood or of reckless disregard for the truth.'" Id. (quoting Franks, 438 U.S. at 171). In other words, mere negligence is not enough. Franks, 438 U.S. at 170. Moreover, the Colkley Court recognized that "the affirmative inclusion of false information in an affidavit is more likely to present a question of impermissible official conduct than a failure to include a matter that might be construed as exculpatory." Colkley, 899 F.2d at 301.
The Colkley Court concluded that Johnson had made no showing of the requisite intent to mislead. The most that the record revealed was the agent's "failure to include the photospread information." Id. As to that conduct, the Fourth Circuit concluded that the agent's "acts fell far short of the level of flagrant police action Franks is designed to prevent, and a hearing under that decision was not required." Id. And, the Court declined to infer intent, bad motive, or recklessness from the fact of omission. Id.
The Fourth Circuit reiterated that intentionality and materiality are distinct components. Id. With respect to the probable cause component, the Fourth Circuit said that, "to be material under Franks, an omission must do more than potentially affect the probable cause determination: it must be necessary to the finding of probable cause.'" Id. (quoting Franks , 438 U.S. at 156). The Court continued: "For an omission to serve as the basis for a hearing under Franks, it must be such that its inclusion in the affidavit would defeat probable cause for arrest." Colkley, 899 F.2d at 301. And, the Court said, "omitted information that is potentially relevant but not dispositive is not enough to warrant a Franks hearing." Id .; see also, e.g., Cioni, 649 F.3d at 286 ( Franks inapplicable when inclusion of the omitted facts would not have changed the "probable cause calculus").
In the Colkley Court's view, to the extent that the photo spread information was exculpatory, it was not enough to defeat probable cause when weighed against the information that was contained in the arrest warrant affidavit. The Court stated, id. at 303: "[A] requirement that all potentially exculpatory evidence be included in an affidavit would severely disrupt the warrant process. The rule would place an extraordinary burden on law enforcement officers, who might have to follow up and include in a warrant affidavit every hunch and detail of an investigation in the futile attempt to prove the negative proposition that no potentially exculpatory evidence had been excluded." The Court concluded: "In short, a rule requiring affiants to disclose all potentially exculpatory information has nothing to recommend it. Unless a defendant makes a strong preliminary showing that the affiant excluded critical information from the affidavit with the intent to mislead the magistrate, the Fourth Amendment provides no basis for a subsequent attack on the affidavit's integrity." Id. at 303.
The case of United States v. Tate, 524 F.3d 449 (4th Cir. 2008), stands in marked contrast to Colkley. In that case, the defendant challenged the veracity of a search warrant affidavit. He claimed that, notwithstanding assertions in the affidavit, his trash had not been abandoned, and therefore the search of it was unconstitutional. Thus, he insisted that the results of the search of his trash could not be considered in evaluating the search warrant application for his home.
In particular, Tate alleged that the police officer had committed a trespass by entering Tate's fenced backyard. Further, he claimed that the portion of the affidavit regarding the investigation of his trash was constructed intentionally to mislead the state judge into assuming that the investigation and examination of his trash had been conducted legally. In essence, Tate claimed that the officer had trespassed to obtain his trash, and seized it when it had not been abandoned, in violation of California v. Greenwood, 486 U.S. 35 (1988). On that basis, he claimed he was entitled to a Franks hearing.
To support his request for an evidentiary hearing, Tate proffered substantial evidence to the court. The evidence included a letter from the Division Chief of the Baltimore Department of Public Works' Bureau of Solid Waste as to when the defendant's trash collection occurred; he submitted two affidavits, one from a neighbor and another from a defense investigator concerning the trash pickup and where his garbage was stored; he submitted a number of photographs of the residence showing a locked gate and the area where the trash was kept; and he submitted a copy of another search warrant affidavit two months earlier in an unrelated case, in which the same officer stated that the trash bags were easily accessible in language quite similar to what was in the affidavit at issue.
The district court judge nevertheless denied the request for a Franks hearing. On appeal, the Fourth Circuit concluded that the defendant had made the requisite substantial preliminary showing under Franks required for an evidentiary hearing to challenge the integrity of an affidavit submitted to support the issuance of a search warrant for Tate's home. It focused on the agent's omission of facts about the location of trash that had been searched, the contents of which undergirded the search warrant affidavit for Tate's residence.
Through Judge Niemeyer, the Fourth Circuit said that, if Tate was correct about his proffered facts, the agent omitted important facts and circumstances that, if true, were essential to the constitutionality of the trash investigation. The Court stated: "The proffered facts tend to show that Agent Manners may have violated Tate's reasonable expectation of privacy because the trash was not out at the curb for collection on the date of Agent Manners' search but rather in a container near the rear steps of the home." 524 F.3d at 456. It continued: "If Tate's facts are correct, the affidavit omitted the important details... that the trash had not been abandoned, and that the trash bags were seized in violation of Tate's reasonable expectation of privacy." Id. at 456.
Of import here, the Court reasoned, id. at 457: "We conclude... that if Tate's facts are true, the inclusion of the allegedly omitted information - that Agent Manners illegally searched Tate's trash - would have defeated probable cause. If the trash investigation was conducted illegally, the facts derived from it would have to be stricken from the affidavit." And, the Court said: "Without the facts drawn from the trash investigation, the remaining contents of the affidavit would not have supported a finding of probable cause." Id. at 457. Thus, the Court held that Tate had met his burden of making a substantial preliminary showing that the agent had knowingly and intentionally, or with reckless disregard for the truth, omitted a material statement in the affidavit in support of the search warrant. Id.
With the principles undergirding Franks in mind, I granted Ms. Wharton's request for a Franks hearing. Unlike Colkley, the case at bar does not concern an arrest warrant. This case involves a challenge to a search warrant, to which the Fourth Amendment's particularity requirement applies. In my view, Ms. Wharton made "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was either included in the warrant affidavit, or omitted, and would have been essential or material to the probable cause determination." Mot. Hrg. Tr. 1 at 32. In granting the request, I said, id. at 21, 27, 32:
[The defense has made a showing that] these are people not of economic means, or for whatever other reason, they bought this house together. They live separately within the house. They have chosen, not with the legal imprimatur of government, to informally subdivide it, but they have subdivided it for themselves. He lives in the basement. She lives elsewhere. And the government knew that. That's the allegation.
And that clearly wasn't disclosed. So we can all agree on that, I think. The question is, would it have made a difference?... Because as I understand Franks, the omission would have to be material to the probable cause determination.
At least for me, I think it's a close question, but I think it would be appropriate to hold a Franks hearing.
Thus, the question now before the Court is whether the evidence presented at the Franks hearing showed, by a preponderance of the evidence, that information was omitted from the warrant Affidavit; that the omissions were designed to mislead or made in reckless disregard of the truth; and that the omissions were material, meaning that their "inclusion in the affidavit would defeat probable cause." Clenney, 631 F.3d at 664. I turn to review the evidence.
Special Agent Gray submitted an Affidavit in support of a warrant to search defendants' residence on Utrecht Road, identified as the "SUBJECT PREMISES." Gray Aff. ¶ 3. Agent Gray averred that, since August 2012, he was the primary case agent assigned to an investigation of Social Security fraud "by a married couple named John and Joeann Wharton." Gray Aff. ¶ 8. Agent Gray stated: "The Whartons are residents of Baltimore, Maryland, and currently reside at the SUBJECT PREMISES." Gray Aff. ¶ 8. Agent Gray also averred that "there is probable cause to believe that within the SUBJECT PREMISES, there exists evidence, fruits, and instrumentalities of the crimes of Identity Fraud..., Social Security Number Fraud..., and Theft of Government Property...." Gray Aff. ¶ 3. An attachment to Agent Gray's Affidavit described the property to be searched as follows, Gray Aff. at 11 (Attachment A):
[The home on] Utrecht Rd, Baltimore, Maryland 21206 is an attached "row home" style residence. The home has two visible stories and a dark grey-shingled roof with three small windows trimmed in white facing the road and a red brick chimney on the right side of the roof. The first story has a red brick exterior and one window trimmed in white. The second story is covered with dark grey shingles and there are two windows trimmed in white. The home has the numbers "5634" in black lettering on a white background between the door and the window on the first story. The front door is white, with white shutters on either side of the door and it is located on the left side of the residence.
Agent Gray noted that the investigation began after the Whartons' adult daughter, Tasha Muriel, told a local SSA employee that Joeann Wharton had been serving as the representative payee for Muriel's nieces ( i.e., the Whartons' granddaughters), but that Ms. Wharton was not spending the benefits for the nieces' benefit. Id. The investigation subsequently expanded to include Ms. Wharton's receipt of disability and Medicaid benefits, Mr. Wharton's receipt of retirement benefits under the false identity "James Lee Wharton, " and Ms. Wharton's receipt as representative payee of benefits for the defendants' son, Lasean. Id.
Agent Gray's Affidavit made clear that he was "investigating various violations of federal criminal laws by John and Joeann, " and that the "affidavit contains information to support a finding of probable cause to search the SUBJECT PREMISES for fruits, evidence, and instrumentalities of John's violations of statutes" specified in the Affidavit. Gray Aff. ¶ 10 (emphasis added). The items that Agent Gray "believe[d] may be currently stored at the SUBJECT PREMISES" are documents pertaining to the aspects of the alleged fraud that are linked to John: "(1) documents and records that may confirm whether James Wharton' is a synthetic identity or the identity of a real person; (2) the debit card associated with the James Wharton Citigroup bank account; (3) statements and other correspondence from Citigroup regarding the James Wharton bank account; (4) the Maryland Driver's License issued in the name of James Wharton; (5) the Social Security Card issued in the name of James Lee Wharton and bearing SSN xxx-xx-1376; and (6) documents and records reflecting employment at Uptown Press, Inc. and other employers by John in the name James Wharton.'" Gray Aff. ¶ 21. See also id. at 12 (Attachment B, specifying materials to be seized).
On the issue of the Whartons' living arrangements, Agent Gray referred to his interview of the Whartons in August 2012, stating, Gray Aff. ¶ 11:
On August 27, 2012, your affiant and another special agent from SSA OIG interviewed John and Joeann at the SUBJECT PREMISES in relation to the initial allegation of fraudulent receipt by Joeann of Title XVI benefits intended for the benefit of her granddaughters Essence and Chaquiera Wharton.... During that interview, the Whartons stated that they had ...