By: Kristina Wilson
On Friday, October 21, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Wharton. The Fourth Circuit affirmed the District Court’s conviction of the defendant for conspiracy, making a false statement, theft, and embezzlement, all in connection with her unlawful receipt of government benefits. On appeal, the defendant argued that the affidavit upon which the search warrant was based was materially false and thus violated her Fourth Amendment rights. The Fourth Circuit affirmed the District Court’s decision that there was no Fourth Amendment violation because the affidavit’s omitted facts were not material.
Facts and Procedural History
After the death of the defendant’s daughter in 2002, the defendant took her two granddaughters into her home. She began receiving Social Security survivors’ benefits on her granddaughters’ behalf. In 2012, the Government discovered that the defendant’s granddaughters had not lived with the defendant since 2009 and were not receiving their benefits. The Government then launched an investigation into the defendant’s use of the Social Security funds.
Following the investigation, a grand jury indicted the defendant on two counts of theft of government property in violation of 18 USC § 641 and 42 USC § 1381a(a)(3) on January 31, 2013. The grand jury issued a sealed superseding indictment on June 26, 2013, which was unsealed on July 10, 2013. The indictment charged both the defendant and her husband with conspiracy to embezzle, embezzlement, and making false statements. While the indictment remained sealed, on July 1, 2013, a special agent from the Social Security Administrator’s office executed an affidavit in which he asserted that the defendant and her husband lived together in the defendant’s home. The magistrate issued a search warrant based on the agent’s affidavit, and the Social Security Administrator’s office searched the defendant’s home, discovering a number of documents relevant to the criminal charges.
Prior to trial, the defendant moved to suppress all evidence uncovered in the search of her home. The District Court denied her motion to suppress for all evidence except that which was obtained from her second-floor bedroom. Ultimately, the District Court convicted the defendant and her husband for conspiracy to embezzle money in violation of 18 U.S.C. § 371, making false statements in violation of 42 U.S.C. § 1383a(a)(2), and embezzlement in violation of 18 USC § 641.
The Information Was Recklessly Omitted but Not Material
The defendant asserted that special agent’s affidavit was materially false in violation of the Fourth Amendment because it omitted the fact that she and her husband did not live together.
In the affidavit, the special agent asserted that the defendant and her husband lived together on the basis of interviews he conducted with the defendant, her husband, and their children. Both the defendant and her husband stated that they had been married continuously for 43 years and lived together in the defendant’s home. The special agent also discovered that the defendant’s husband’s electricity account provided power to the entire home, not just his basement living space. Additionally, the special agent discovered that Dish Network provided cable television to the entire home with the defendant and her husband both listed as authorized users.
The District Court held that the defendant and her husband did live separately in that the defendant’s husband only occupied the common areas of the home upon invitation and kept the door to his basement living area locked. However, the omission was not material and did not violate the Fourth Amendment.
The Omission Did Not Violate the Fourth Amendment
On appeal, the Fourth Circuit applied a de novo standard of review to the denial of the defendant’s motion to suppress.
According to the Fourth Circuit, the District Court properly addressed the defendant’s claim as a Franks v. Delaware question. Franks v. Delaware, 438 U.S. 154 (1978). Although a Franks analysis usually begins with the threshold question of whether a district court improperly denied an evidentiary hearing, the Fourth Circuit eschewed that preliminary question because the District Court granted the defendant an evidentiary hearing before denying the motion to suppress.
When a defendant asserts that an affiant has omitted material facts in the affidavit, the defendant must prove that the affiant intentionally or recklessly made a materially false statement or omitted material information.
While Franks requires proof of both intentionality and materiality, only materiality was at issue on appeal. An omission is material if it is necessary to the magistrate’s finding of probable cause to support the warrant. When evaluating materiality, a court inserts the omitted facts and then determines whether the corrected affidavit supports probable cause. If it does, there is no Franks violation.
In recent cases United States v. Lull, 824 F.3d 109 (4th Cir. 2016) and United States v. Tate, 524 F.3d 449 (4th Cir. 2008), the Fourth Circuit reversed the defendants’ convictions after concluding that the omitted information in question undermined the entire foundation of the affidavits. In Lull, an officer omitted facts that undermined the reliability of a confidential informant who supplied many of the facts in the affidavit. In Tate, an officer omitted the fact that much of the evidence supporting his affidavit originated from a questionable search of the defendant’s trash. The Fourth Circuit reasoned that if the trash search was illegal, that evidence would have to be suppressed. Without the trash search evidence, the officer’s warrant lacked probable cause.
In contrast, the fact that the defendant and her husband did not live together did not change the fair probability that evidence relating to the defendant’s crimes would be discovered in the common areas of the house. The magistrate was reasonable in concluding that the defendant and her husband lived together because they stated that they lived together, and they shared utilities and cable services, creating a reasonable inference that both individuals used those services throughout the home. Finally, the omitted fact did not call into question the inherent reliability or validity of the affidavit supporting the warrant, unlike in Lull and Tate.
Disposition
Therefore, the Fourth Circuit affirmed the District Court’s conviction of the plaintiff on all counts.
