United States v. Patterson , 877 F.3d 419 ( 2017 )

United States Court of Appeals
For the First Circuit
Nos. 16-1357, 16-1702
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES PATTERSON,
Defendant, Appellant.
APPEALS FROM THE UNTIED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Jonathan Shapiro, with whom Mia Teitelbaum and Shapiro
Weissberg & Garin, LLP were on brief, for appellant.
Alexia R. De Vincentis, Assistant United States Attorney,
with whom, William D. Weinreb, Acting United States Attorney, was
on brief, for appellee.
December 13, 2017
BARRON, Circuit Judge. James Patterson appeals his
federal convictions, and resulting sentence, for five counts of
bank robbery in violation of 18 U.S.C. § 2113(a). He argues that
his convictions must be vacated because the District Court erred
in denying his motions for (1) a hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978), regarding warrants that were issued
to install Global Positioning System ("GPS") tracking devices; (2)
the suppression of evidence obtained from those GPS tracking
devices installed pursuant to those warrants; and (3) the
suppression of evidence obtained as the result of his arrest. We
affirm.
I.
The following facts relevant to the issues on appeal are
not in dispute. In the spring and summer of 2014, five banks in
the Boston area were robbed. In each incident, witnesses reported
to law enforcement that the perpetrator covered his face, wore
dark sunglasses and plastic gloves, and made verbal demands for
cash. By the fifth robbery, local law enforcement agents and the
Federal Bureau of Investigation ("FBI") were investigating the
string of robberies.
At three of the robberies, surveillance cameras captured
images of a four-door vehicle that resembled a Volvo. Following
the fifth robbery, police for the City of Peabody, Massachusetts,
received a report of the robber leaving the scene in an older
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model, four-door, green Volvo sedan with a Massachusetts license
plate. In addition, the Peabody police received a call on the day
of the fifth robbery that reported suspicious activity occurring
about four miles from the scene of the fifth robbery and thirty to
forty minutes prior to that robbery. The suspicious activity that
was reported involved a man wearing sunglasses, a hooded sweatshirt
with the hood up, and gloves, who got out of a "faded black Volvo"
and began walking toward a bank. The caller reported having said
to the man that it was suspicious to enter a bank dressed that way
and that the man then returned to his car. The caller also reported
following the car and that the car had a Massachusetts license
plate with the number 353PY1 and that the plate was possibly tied
to the car with a piece of rope.
Law enforcement officers ran this license plate number
through the Massachusetts Registry of Motor Vehicles database.
The check of the license plate indicated that it was registered to
a 1994 black Volvo. On the basis of all of this information, a
detective for the police department of the Town of Stoughton,
Massachusetts, who was part of the investigation, applied for a
warrant from a magistrate in the Stoughton District Court in
Massachusetts to install a GPS tracking device on that black Volvo.
The affidavit supporting the application stated, among
other things, that there had been a report of a "suspicious vehicle
observed in the area [of the fifth robbery] described as a black
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Volvo, Massachusetts registration 353PY1." The only report that
law enforcement had received concerning a black Volvo with that
license plate number, however, was the report that placed that
vehicle about four miles from the scene of the fifth robbery,
thirty to forty minutes before that robbery occurred. Law
enforcement had received a separate report of a Volvo being at the
scene of the fifth robbery. But the person who made that report
had stated that the Volvo was green -- rather than black -- and
the person who made that report did not give that Volvo's license
plate number, although the report did identify that vehicle as
having a Massachusetts license plate.
The magistrate granted the warrant to install the GPS
tracking device. The next day, while conducting surveillance on
the 1994 black Volvo, police officers observed that the 353PY1
license plate had been removed from the vehicle and affixed to a
tan Acura at the same address where the black Volvo was parked.
The officers then sought and received a warrant to install a second
GPS tracking device, this time on the Acura. The officers in
seeking this second warrant relied on an affidavit that, with
respect to the description of the reports regarding the vehicles
that had been observed on the day of the fifth robbery, was
identical to the one that had been used in applying for the first
GPS tracking device warrant.
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Following the issuance of the two warrants and the
installation of the GPS tracking devices on both vehicles, law
enforcement surveilled both vehicles -- the black Volvo and the
Acura -- intermittently for the next thirteen days. During the
surveillance, the cars were observed passing several banks in the
area, and slowing down in front of each bank as they passed. In
addition, law enforcement reported that during their surveillance
of the vehicles, in several incidents, Patterson was seen as a
passenger, turning his head toward the bank as the vehicle he was
in at the time passed.
On August 4, 2014, FBI agents watched one of these
vehicles -- with Patterson in it as a passenger -- again drive
slowly past a number of banks before finally pulling into a parking
lot near a bank. The agents observed Patterson change clothes in
his vehicle and emerge dressed in dark pants, a dark sweatshirt,
a hat, sunglasses, and clear gloves. The agents then saw him begin
walking toward the nearby bank, before he turned and began walking
back toward the car.
At that point, a Special Weapons and Tactics team from
the FBI arrested Patterson. As Patterson raised his hands on the
command of the FBI agents, a black BB gun fell from Patterson's
person to the ground. After being given a Miranda warning, see
Miranda v. Arizona, 384 U.S. 436, 444 (1966), Patterson made
statements to the police.
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On December 4, 2014, Patterson was indicted in the United
States District Court for the District of Massachusetts on five
counts of bank robbery in violation of 18 U.S.C. § 2113(a) and one
count of attempted bank robbery in violation of 18 U.S.C.
§ 2113(a), all committed while on supervised release in violation
of 18 U.S.C. § 3147. Prior to trial, Patterson filed a motion for
a Franks hearing to challenge the state court warrants for the
installation of GPS tracking devices on the black Volvo and the
Acura on the ground that the affidavits supporting each warrant
application contained an erroneous statement by relating that the
Volvo seen "in the area" of the fifth robbery was a black Volvo
that had the license plate number 353PY1.
The District Court concluded that the "affidavit [was]
not a shining example of attention to detail" and contained an
"erroneous" statement, given that the only Volvo reportedly seen
at the site of the fifth bank robbery was green and was not
identified as having that license plate number and that the black
Volvo with that license plate was reportedly seen four miles away
and some thirty to forty minutes before the fifth robbery occurred.
Nevertheless, the District Court denied the motion after
concluding that the erroneous statement was not made "knowingly or
in reckless disregard for the truth." The District Court explained
in reaching that conclusion that "there was simply no incentive"
for the officer to make the misstatement intentionally because, if
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the affidavit had correctly described the two separate reports,
then the magistrate "would still have had ample justification to
find probable cause."
Patterson also filed motions to suppress the evidence
obtained through the GPS tracking devices and as a result of his
arrest. Patterson contended that the evidence must be suppressed
because there was not probable cause to support either the issuance
of the GPS tracking device warrants or his arrest. The District
Court denied these motions, too.
The District Court reasoned that the information
contained in the affidavit supporting each warrant application
regarding the reports of multiple sightings of a "Volvo of similar
appearance" near some of the bank robberies and the witness's
report of the suspicious activity involving a black Volvo "only 30
or 40 minutes before, and less than four miles from" the fifth
robbery supported a finding of probable cause for issuance of the
warrants to install the GPS tracking devices. The District Court
also concluded that there was probable cause to arrest Patterson
based on the observations by law enforcement officers of Patterson
"casing" banks and, before walking toward a bank, changing into
clothing that matched descriptions of the wardrobe worn by the
robber at each of the other banks that had been robbed. The
District Court thus denied Patterson's suppression motions and the
case proceeded to trial.
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At trial, Patterson renewed his motions to suppress,
which the District Court again denied. Following the jury's
verdict of guilty on all five counts of bank robbery,1 Patterson
was convicted and sentenced to 121 months of incarceration and
three years of supervised release on each count. Because he was
on supervised release due to his sentence for a prior conviction
at the time that he committed the bank robberies, he was also found
to be in violation of the conditions of the terms of his release
and sentenced to an additional twenty-four months of imprisonment
to be served consecutively.
Patterson now appeals the denial of his motion for a
Franks hearing and the denial of his two suppression motions. And,
on those grounds, he seeks to have his convictions and sentence
vacated.
II.
Patterson contends first that the District Court erred
in denying his motion for a Franks hearing. In assessing the
denial of a motion for a Franks hearing, "we review factual
determinations for clear error and the probable cause
determination de novo." United States v. Arias, 848 F.3d 504, 511
(1st Cir. 2017).
1 For reasons unrelated to this appeal, the District Court
granted Patterson's motion for acquittal on count six, attempted
bank robbery.
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To establish the predicate for holding a Franks hearing,
the defendant must make two "substantial preliminary showing[s]."
Franks, 438 U.S. at 155. A defendant must first make a substantial
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. With respect to this
initial showing, "[m]ere inaccuracies, even negligent ones, are
not enough to warrant a Franks hearing." United States v. Santana,
342 F.3d 60, 66 (1st Cir. 2003) (alteration in original) (internal
citation omitted).
A defendant must also make a substantial showing that
the "allegedly false statement is necessary to the finding of
probable cause." Franks, 438 U.S. at 156. This inquiry considers
whether, "with the affidavit's false material set to one side, the
affidavit's remaining content is insufficient to establish
probable cause." Id. at 156. For, if what remains is
insufficient, then the warrant "must be voided and the fruits of
the search excluded to the same extent as if probable cause was
lacking on the face of the affidavit." Id.In denying Patterson's motion for a Franks hearing, the
District Court ruled that Patterson had failed to make a
substantial preliminary showing that the misstatement -- that a
black Volvo with the key license plate number was seen "in the
area" of the fifth robbery -- had been intentionally or recklessly
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made. In so concluding, the District Court explained that, even
if the affidavit had correctly described what happened, a
magistrate would still have had "ample justification to find
probable cause." The District Court thus concluded that there was
"simply no incentive" for the officer to have intentionally made
the misstatement in the affidavit, and thus that Patterson had
failed to make a substantial preliminary showing that the
misstatement was made "knowingly and intentionally, or with
reckless disregard for the truth." Id. at 155.
In light of this ruling below, the key issue on appeal
concerns whether Patterson made the requisite showing that the
misstatement was made intentionally rather than, as the District
Court concluded, merely out of carelessness. But, as to that
critical point, Patterson comes up short.
Patterson argues first that the misstatement must have
been made intentionally2 because the statement appears in the
affidavit twice.3 But, the mere fact that the record reveals the
2
Patterson makes no argument that the statement was made
recklessly.
3
The government responds that Patterson's Franks argument is
waived because his opening brief points to no specific evidence
that was used against him at trial that stemmed from the
installation of the GPS tracking devices. Below, however,
Patterson argued that because his surveillance and arrest were
made possible by the GPS tracking, the fruits of his surveillance
and arrest should be suppressed. Given this argument below, we
assume, favorably for Patterson, that his argument on this point
is not waived.
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misstatement was repeated in the affidavit does not constitute a
substantial preliminary showing that the misstatement was made
intentionally. If the officer made a negligent mistake once in
describing the vehicle and its whereabouts in preparing the
affidavit, then it would be unremarkable that he would have
repeated the mistake. So the repetition of the error does little
to show that it was made intentionally rather than mistakenly.
Patterson also points to the fact that the officer who
prepared the affidavit had access, at the time that he completed
the affidavit, to the two police reports that described the two
separate reports of the Volvos. And, Patterson notes, those police
reports did not themselves contain the misstatement that the
officer included in the affidavit. Patterson thus contends that,
given that the misstatement was helpful to the government's case
for obtaining the warrant, he made a substantial preliminary
showing that the misstatement was intentionally made by pointing
to the fact that the officer in preparing the affidavit had before
him the correct information about the exact reported location of
the black Volvo with the license plate and yet included the
misstatement regarding that report nonetheless.
But, as the District Court noted, even if the affidavit
had made clear that the Volvo with the license plate registered to
the black Volvo was not reported to be present at the scene of the
fifth robbery, there would still have been an "ample" basis for
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issuing the warrant. After all, had the affidavit related the
facts regarding the Volvo's whereabouts precisely as they were set
forth in the police reports, the magistrate would still have been
informed that a Volvo with that license plate was reported "only
30 or 40 minutes earlier and less than four miles away" from the
scene of the fifth bank robbery. And, given what the police
reports stated, the magistrate also would have been informed that
the occupant of that vehicle with those plates was acting
suspiciously less than an hour before the fifth robbery and at the
relatively nearby bank, while that suspect was wearing clothing
that was at least similar to the clothing worn by the person
reportedly seen at the site of the fifth bank robbery.
In addition, the magistrate would have been informed
that the description of this suspect was also quite similar to the
description of the suspect reportedly seen at a number of the other
robberies in the string. Moreover, the magistrate would have been
informed that a car that was possibly a black Volvo of similar
model and year was seen at these earlier robberies, too.
In light of these aspects of the record, it simply
requires too much speculation to infer from the mere fact that the
affidavit erroneously described the detailed police reports that
the affiant made the error intentionally rather than carelessly.
Accordingly, we conclude that the District Court did not err in
denying Patterson's motion for a Franks hearing based on
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Patterson's failure to make the requisite preliminary showing.
See United States v. Castillo, 287 F.3d 21, 26 (1st Cir. 2002).
III.
Patterson separately contends that, because the
affidavit supporting the applications for the warrants to install
the GPS tracking devices failed to relate facts that could support
a finding of probable cause to suspect the black Volvo's or the
tan Acura's connection to the bank robberies, the District Court
erred in denying his motion to suppress the evidence obtained from
the installation of the GPS tracking devices. But, we do not
agree.
Our review is de novo, but "[i]n a doubtful or marginal
case, the court defers to the issuing magistrate's determination
of probable cause." United States v. Barnard, 299 F.3d 90, 93
(1st Cir. 2002). And here, the case for finding probable cause on
the basis of the affidavit supporting the warrant is hardly
marginal. For while Patterson contends that there was "simply no
basis" to conclude from the affidavit that the black Volvo with
the license plate 353PY1 was "involved in any prior bank robbery,"
he rests this contention almost entirely on the fact that the
photographs taken by surveillance cameras at the scene of several
of the robberies captured images of a dark-colored sedan that could
have been a Volvo but did not identify the vehicle's license plate.
Patterson overlooks, however, the fact that the affidavit
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described a number of facts to provide a reasonable basis for
connecting the black Volvo with the license plate 353PY1 --
reportedly seen "in the area" of the fifth robbery -- to not only
that robbery but others in the string.
In particular, the affidavit reported that a review of
the surveillance video taken during the fourth robbery showed that
"[i]t appears that the getaway vehicle is a 4 door vehicle color
black, possibly a Volvo." And the affidavit further explained
that a local Volvo dealer had been shown a photo of the vehicle
from this video and stated that it "could possibly be a 1991,[
]1992 or 1994 Volvo, model number 940 or 960."
In addition, the affidavit explained that a witness
reported the suspect at this fourth robbery to be a "black
male . . . wearing a white jogging suit, described as
approximately 5-11 to 6-0 [inches] tall, wearing a black baseball
style hat, dark sunglasses with a bandana covering his face and
clear plastic gloves . . . . " And the affidavit then went on to
state that this description of the suspect of this fourth robbery
was similar to the description of the suspect at a third bank
robbery, as that suspect was described as a black male, wearing a
hat, dark sunglasses, clear plastic gloves, and covering his face.
What is more, the affidavit stated that a still photo
taken from surveillance cameras near the bank involved in either
the first or second robbery in the string depicted "a four door
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vehicle, possibly a Volvo, color black." And the affidavit stated
that the vehicle depicted in this photograph was identified by the
service manager at the local Volvo dealer as appearing to be a
"1994 or 1995 Volvo, model 940 or 960 GLE."
The affidavit thus had related facts tying a black,
mid-1990s Volvo to at least three of the robberies that preceded
the fifth. And the affidavit then explained that on the day of
the fifth robbery, "a witness reported seeing a suspicious male
wearing aviator type sunglasses, a hooded sweatshirt and gloves"
get out of a black Volvo and "act[] suspicious[ly] in the area of
[a] TD bank." According to the affidavit, after the "suspicious
male" saw the witness, he left the area of the bank in the black
Volvo. Shortly thereafter, the affidavit reported, another bank
in the area "was robbed by a male party [w]ith the same clothing
description previously seen at the TD bank . . . . " The affidavit
went on to state that at that fifth robbery, "there was a
suspicious vehicle observed in the area described as a black Volvo,
Massachusetts registration 353PY1." The affidavit thus facially
provided sufficient facts to link the black Volvo with license
plate 353PY1 with several of the robberies, including the fifth
one, notwithstanding that the affidavit did not report that this
vehicle was seen by any witness or depicted in surveillance
photographs as being at the scene of that robbery.
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Nor was, as Patterson urges, the affidavit's statement
that the witness's report of the "suspicious male" seen with the
black Volvo on the day of the fifth robbery uncorroborated. See
United States v. Trinh, 665 F.3d 1, 10 (1st Cir. 2011)
(articulating a "nonexhaustive list of factors" for determining
whether information in an affidavit is corroborated). The
affidavit states that, before filing the warrant applications, law
enforcement officials were able to corroborate certain details of
the witness's report. In particular, the affidavit states that
law enforcement ran the license plate of the black Volvo that the
witness had reported seeing through a database that showed that
the license plate was registered to a 1994 black Volvo and also
conducted physical surveillance that revealed that there was in
fact a black Volvo with that license plate.
That leaves Patterson with only one remaining argument:
that there was no reference to a vehicle of any kind in the report
of the third robbery that the affidavit referenced. Patterson
argues that without evidence directly linking the Volvo with the
license plate 353PY1 to each robbery there was no probable cause
to issue the warrant.
But we do not see why. For there to be probable cause
to issue the warrant to install the GPS tracking device on the
black Volvo, the affidavit need not report that the vehicle had
been seen at each robbery, at least when there is a link between
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the various robberies that is independent of the vehicle itself --
here, the similarities between the descriptions of the robber. Of
course, Patterson does also contend that there is no such link, by
arguing that the reports discussed in the affidavit describing the
robber's height, weight, and wardrobe at each robbery varied too
greatly to support the inference that the same person committed
each. But, based on the similarities in the reported description
of the suspect seen at these robberies that we have discussed
above, we disagree.
We thus reject Patterson's contention that the
supporting affidavit did not provide probable cause for the
warrants for the installation of the GPS tracking devices. And,
accordingly, we affirm the denial of his motion to suppress any
evidence that may have been obtained in consequence of the issuance
of those warrants.4
IV.
We turn, finally, to Patterson's contention that the
District Court erred in denying his motion to suppress evidence
4
The government argues that Patterson's appeal of the
District Court's denial of his motion to suppress the evidence
obtained from the installation of the GPS tracking devices fails
because Patterson has not identified any evidence from the GPS
tracking devices that was used against him at trial, and thus any
error was harmless. Because we determined that the District Court
did not err in concluding that the warrant applications supported
a finding of probable cause, and thus the installation of the GPS
tracking devices was lawful, we need not, and do not, reach this
issue.
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obtained as a result of his arrest. To effectuate a warrantless
arrest, law enforcement officers must, on the basis of "reasonably
trustworthy facts and circumstances, have information upon which
a reasonably prudent person would believe the suspect had committed
or was committing a crime." United States v. Young, 105 F.3d 1,
6 (1st Cir. 1997). Our review of the legal conclusion as to the
existence of probable cause to make the arrest is de novo. United
States v. Capelton, 350 F.3d 231, 240 (1st Cir. 2003).
Patterson argues that the probable cause standard was
not met here. He contends that the FBI agents' belief that he had
been "casing" banks in the area was "speculati[ve]" and that the
fact that he had changed clothes and walked toward the bank before
turning around was insufficient to support a finding of probable
cause for attempted bank robbery. He contends that the
descriptions of the perpetrators in the string of prior robberies
varied too greatly to tie him to those robberies in a way that
would support a finding of probable cause to arrest him for those
crimes. He further argues that he lacked the requisite intent to
commit a bank robbery necessary to prove the element of attempt
because the evidence did not show that he did more than "merely
think about" committing a robbery. And, finally, he contends that
the evidence showed that he turned and walked away from the bank
just prior to being arrested, thereby further indicating that he
was not attempting to rob that bank. As a result, he argues, the
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evidence of his BB gun, clothing, and statements made after his
arrest should be suppressed.
The government points out in response that Patterson was
arrested for attempted robbery under Massachusetts law, even
though he was ultimately charged with federal crimes. And thus
the government contends that, because Patterson makes no argument
as to why the officers lacked probable cause to arrest him for
that state law crime, and instead argues only that there was not
probable cause to arrest him for the federal crimes for which he
was later charged, Patterson has waived the argument that there
was no probable cause to arrest him.
But, even if we set aside the waiver argument -- which
Patterson does not address -- Patterson's challenge still fails.
The record shows that law enforcement had watched Patterson "case"
various banks in the area for nearly two weeks prior to his arrest,
had noted the similarities between Patterson's car and the car
seen at the previous robberies, and, just before the arrest, had
watched him change into clothes consistent with the type of
clothing worn by the robbers in the previous string of bank
robberies: sunglasses, gloves, and head and face coverings. And
while the government does not dispute that Patterson turned around
while he was walking toward the bank just prior to being arrested
in the bank's parking lot, evidence of abandonment does not in and
of itself suffice to negate evidence of attempt. See United States
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v. Turner, 501 F.3d 59, 69 (1st Cir. 2007) ("[T]he fact that [the
defendant] may have detected the FBI's surveillance and tried to
abandon the attempt at the last moment is irrelevant."); see
generally United States v. Chapdelaine, 989 F.2d 28, 33 (1st Cir.
1993) (holding that "casing [a] bank, stealing a car, and arriving
armed at the bank constituted a substantial step toward robbery"
sufficient for a conviction for attempted robbery (internal
citation omitted)).
We thus agree with the District Court that Patterson's
arguments about the lack of evidence to support a finding of
probable cause "strain[] credulity." Accordingly, the District
Court did not err in denying Patterson's motion to suppress
evidence obtained as a result of his arrest.
V.
For the foregoing reasons, the decision of the District
Court is affirmed.
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