D.Md.: Franks challenge successful but so limited it won’t help the defense much

The defense satisfied the court of a reckless omission of information about living arrangements in the house searched under the warrant, but the omission only leads to suppression of evidence from one room because that’s all the omission related to. United States v. Wharton, 2014 U.S. Dist. LEXIS 110966 (D. Md. August 12, 2014):

In my view, Magistrate Judge Gallagher would not have issued the warrant with regard to Ms. Wharton’s upstairs bedroom had she been presented with all of the information in Agent Gray’s possession that was germane to the subject of the Whartons’ living arrangements. However, I believe Magistrate Judge Gallagher would have issued the warrant with regard to the other areas of the house. The economic evidence of shared utility and cable bills is much more probative as to those areas. Additionally, John Wharton was present in the dining room during the agents’ interview with Ms. Wharton. Moreover, Ms. Muriel’s grand jury testimony about her parents’ living arrangements revealed that John Wharton “occasionally … would come up to cook in the kitchen. … But then the dining room and all of that is open up [sic], too.” Def. Hrg. Exh. 9. Similarly, Lasean Wharton indicated in his June 3, 2013 interview with Agent Gray that, although his parents slept in separate bedrooms, they “share a kitchen and common areas.”

In light of this information, there was a “fair probability” that evidence relating to John Wharton’s alleged identity fraud would be found in the areas of the house other than the upstairs bedroom of Ms. Wharton. Accordingly, the omissions were not material as to the common areas of the house.