United States v. Tracy Carson

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3625
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T RACY A. C ARSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cr-022-01—Larry J. McKinney, Judge.
A RGUED M AY 6, 2009—D ECIDED O CTOBER 6, 2009
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
W OOD , Circuit Judge. Tracy Carson is a bank robber
who, in April 2007, held up and robbed an Indianapolis
branch of Chase Bank. Following a tip from an
informant and an independent investigation, the police
obtained a search warrant and arrested Carson at a local
hotel. In the face of the damning evidence seized at the
hotel, including more than $100,000 in cash wrapped in
2 No. 08-3625
Chase Bank straps and stamped with information particu-
lar to the robbed facility, latex gloves, a firearm, cocaine,
and marijuana, Carson immediately confessed to the
robbery. He was later charged with, and convicted of,
armed bank robbery, in violation of 18 U.S.C. § 2113(a)
& (d), brandishing a firearm, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii), and being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g) & 924(e).
On appeal, Carson’s primary argument is that evidence
critical to his conviction should have been suppressed
because probable cause did not support the issuance of
the search warrant. In the alternative, he asserts that the
affidavit supporting the application for the warrant
contained material false statements. Finally, he argues
that his confession should have been suppressed because
the large quantities of drugs and alcohol that he ingested
prior to his arrest and confession invalidated his waiver
of his Miranda rights. We conclude that the district court
correctly refused to suppress both the evidence and
the confession, and we thus affirm its judgment.
I
At a little after one o’clock in the afternoon of April 25,
2007, a robber, later identified as Carson, entered a
Chase Bank branch at 7001 South Madison Avenue in
Indianapolis. Carson was wearing a mask over his face
and latex gloves on his hands, and was carrying a firearm.
He made away with more than $120,000. Indiana State
Police learned of the robbery later that evening when, at
around 11:15, an informant gave Sergeant Dean Wildauer
No. 08-3625 3
and Detective Ronnie Shoemaker extensive information
about the robbery. The informant’s report included the
following details: a bank robbery had occurred on the
south side of Indianapolis; the robber’s name was Tracy;
Tracy was a white male between the ages of 35 and 38
and was approximately six feet tall; Tracy was at a hotel
that had a swimming pool in the guest room; the room
went for $500 per night; Tracy was accompanied by a
woman named Amanda; he possessed money that the
informant estimated as at least $100,000 (based on the
informant’s observation of Tracy’s counting the money);
Tracy also had a handgun, narcotics, and cocaine; Tracy
and Amanda had been dropped off at the hotel; and the
hotel was located at 21 s t and Post Streets, on the east
side of Indianapolis. While Sergeant Wildauer was
aware that the Sybaris Hotel in Indianapolis had swim-
ming pools in the rooms, he did not know of any such
hotel located at 21 s t and Post. Sergeant Wildauer asked
the informant to check his information, and the
informant promptly confirmed that the hotel was indeed
the Sybaris.
With this information in hand, Sergeant Wildauer
contacted the FBI bank robbery detail and spoke with
Agent Bervin White, who confirmed that a Chase Bank
located at Southport Road and Madison Avenue in India-
napolis had been robbed on April 25, 2007, by a white
male meeting the description Sergeant Wildauer had
been given. Agent White also told Sergeant Wildauer that
the robber was carrying a gun and had stolen approxi-
mately $125,000 from the bank. Sergeant Wildauer and
Detective Shoemaker then went to the Sybaris Hotel and
4 No. 08-3625
learned that a woman named Charlotte Ruby had rented
Suite 12 for two people, Tracy Carson and Amanda John-
son, and that Carson and Johnson had both signed a
waiver and release form. The officers also learned that the
room was paid for in cash and had been rented for
two nights.
After returning to the police station, Sergeant Wildauer
ran a background check on Carson and learned that he
had prior convictions for bank robbery, two handgun
violations, and grand larceny and escape convictions.
Sergeant Wildauer also discovered that Carson had an
outstanding warrant from Marion County for possession
of a controlled substance and public intoxication. Detective
Shoemaker again contacted FBI Agent White, who
advised him that the FBI had identified Carson as a
suspect in a bank robbery within the previous twelve
months. Sergeant Wildauer then memorialized all this
information in an affidavit, and, at 3:34 a.m. on April 26,
2007, obtained a state search warrant for Suite 12 of the
Sybaris Hotel; the warrant authorized the police to look
for and seize Carson, the fruits of the bank robbery,
and narcotics.
Warrant in hand, the police arrived at the Sybaris about
an hour later. In Suite 12, they found Carson, Johnson,
approximately $106,000 wrapped in straps with
stampings from the victimized Chase Bank branch dated
April 24, 2007, along with latex gloves, a firearm, cocaine,
and marijuana. Officers also noted that a tall, gallon-sized
bottle of vodka was in the room and had been opened,
though very little appeared to have been consumed. After
No. 08-3625 5
the room was secured, Sergeant Wildauer read Carson
his Miranda rights. Carson immediately responded, “This
is mine. It’s all mine. She’s [meaning Johnson] got
nothing to do with it.” Approximately 30 minutes
later, Agent Eric Jensen of the federal Bureau of Alcohol,
Tobacco, Firearms and Explosives again advised Carson
of his Miranda rights. This time Carson said, “Yeah, been
there.” Carson did not sign the waiver form, purportedly
because by that time he had been handcuffed.
But Carson then admitted that he had robbed the
Chase Bank in question of $130,000, that he knew that his
possession of the firearm made him an armed career
criminal for the purposes of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), and that he was facing
a virtual life sentence. Carson described the clothes he
wore during the robbery, mentioning his jeans, Nike
tennis shoes, gloves, and mask. Carson confessed that
he carried a .45 caliber handgun in the bank. He said that
he bought the gun on the street and that it was not
stolen (this was later confirmed). Carson recounted that
he had driven to the target bank in a red Chrysler
LeBaron that he had bought for $250. Carson also
revealed that on two prior occasions he had robbed the
Chase Bank branch at Hanna and Keystone Avenues,
obtaining $23,000 and $29,000, and also had attempted to
rob a particular credit union. Carson recalled that the
credit union attempt was unsuccessful because the em-
ployees shut him out using an automatic door system
when they saw him approaching wearing a mask. Agent
Jensen later corroborated this information.
6 No. 08-3625
Carson declined to answer any questions implicating
anyone else or divulging his methodology. He explained
that bank robbery methods are learned in prison and
passed around confidentially, “sort of like a trade se-
cret.” Remarkably, he commented that he did not want
to “screw it up” for anyone else in the bank robbery trade.
The interview lasted for somewhere between 30 and
60 minutes, during which time Carson had to excuse
himself at least twice to go to the restroom to vomit. Agent
Jensen later testified that Carson walked normally, that
he did not sit or fall during the interview, and that his
speech and memory appeared to be clear, given his
ability to offer a coherent account of the events relating
to the robberies and to provide responsive answers.
Following Carson’s arrest and indictment, he was
provided with a supplemental case report. The supple-
mental report indicated that the information that
Sergeant Wildauer and Detective Shoemaker had about
Carson’s whereabouts had not actually come from the
informant directly, but instead had come from an
unknown third party who first had conveyed these
details to the informant. In light of this revelation, Carson
filed two motions to suppress. The motions took the
position that the district court should suppress the evi-
dence obtained through the search warrant because the
warrant application failed to demonstrate the reliability
of the person upon which the officers actually relied
(that third party who was the original source), that the
issuing magistrate judge was misled by material
omissions in the warrant, and that Carson had been
incapacitated while he was being questioned by officers
No. 08-3625 7
and therefore had been incapable of knowingly waiving
his Miranda rights.
Following a hearing, the district court denied both
motions. The court found that the affidavit in support
of the search warrant contained enough information to
support probable cause, that Sergeant Wildauer had not
deliberately omitted anything from his affidavit, and
that Carson was not too impaired to give an effective
waiver of his Miranda rights.
II
A
We consider first Carson’s argument that the district
court erred by denying his motion to suppress the
evidence seized in the search of Suite 12 at the Sybaris
Hotel. When a search is executed pursuant to a facially
valid warrant, we review a district court’s findings of
historical fact for clear error and its legal conclusions
de novo. United States v. Garcia, 528 F.3d 481, 485 (7th Cir.
2008). With respect to the question whether the facts
add up to probable cause, while we give no special
weight to the district court’s decision, we give great
deference to the conclusion of the judge who issued the
warrant. United States v. McIntire, 516 F.3d 576, 578 (7th
Cir. 2008).
Probable cause is established when, based on the
totality of the circumstances, the affidavit sets forth
sufficient evidence to persuade a reasonably prudent
person that a search will uncover evidence of a crime.
8 No. 08-3625
Illinois v. Gates, 462 U.S. 213, 238 (1983). If an affidavit is
the only evidence presented to the judge in support of a
search warrant, and the issuing judge hears no live testi-
mony, the validity of the warrant depends on the
strength of the affidavit. United States v. Peck, 317 F.3d 754,
755 (7th Cir. 2003). Where an informant supplies the
information contained in the affidavit, this court con-
siders several factors: first, “the extent to which police
have corroborated the informant’s statements”; second,
“the degree to which the informant has acquired knowl-
edge of the events through firsthand observation”; third,
the amount of detail in the affidavit; and fourth, the
interval between the time of the events that gave rise to
the need for a search warrant and that of the police
officer’s application for the warrant. United States v.
Koerth, 312 F.3d 862, 866 (7th Cir. 2002). We also take
into account whether the informant testified at the proba-
ble cause hearing. Peck, 317 F.3d at 756. None of these
factors is determinative; “a deficiency in one factor may
be compensated for by a strong showing in another or
another indicator of reliability.” United States v. Brack,
188 F.3d 748, 756 (7th Cir. 1999).
Carson argues that the affidavit in his case did not
establish probable cause, because it provided no way to
assess the reliability of the underlying source and there
was no indication that the informant’s report was based
on first-hand observations. The conclusory statement in
the affidavit to the effect that the informant was a
“reliable source” was, Carson argues, insufficient. In our
view, Carson has missed the forest for the trees. We
assess the affidavit as a whole. While Carson is correct
No. 08-3625 9
that it did not say that the informant’s information was
the result of first-hand observations, the affidavit was
ultimately sufficient to support the determination of
probable cause.
In the first instance, the affidavit reported that the
informant identified Carson by name, described his
appearance, pinpointed where he was located, described
the appearance of Carson’s hotel room, named the
woman with whom Carson was sharing the room, speci-
fied that he had seen the amount of money Carson had
in his possession, said that Carson was in possession of
a gun and drugs, and stated that Carson was a
convicted bank robber. In addition, the affidavit outlined
the independent efforts the police took to corroborate
the information provided by the informant, including
the fact that a bank robbery had occurred at the location
identified by the informant, the appearance of the
robber, the amount of money the robber had stolen, that
Suite 12 of the Sybaris Hotel was occupied by Carson
and Johnson (just as the informant had said), that their
room came equipped with a personal swimming pool,
that Carson had a prior conviction for bank robbery,
and that Carson had outstanding arrest warrants for
possession of a controlled substance. Finally, the time
between the robbery (1:00 p.m. on April 25), the conversa-
tion with the informant (11:15 p.m. the same day), and the
application for the warrant (3:34 a.m. on April 26) was
minimal. The police also wasted no time executing the
warrant: they arrived at Carson’s room at 4:30 a.m. on
April 26.
10 No. 08-3625
Carson attempts to counter all of this evidence by
claiming that his case is just like Koerth, supra, in which
we found probable cause to be lacking. 312 F.3d at 868.
Koerth, however, is readily distinguishable. In Koerth, the
supporting affidavit failed to explain the extent to
which the informant had previously provided infor-
mation leading to arrests or prosecutions. Indeed, the
affidavit was devoid of detail, and the police failed to
check out any of the information provided. Id. at 868. As
we have already recounted at length, Carson’s case could
not be more different. In addition to the particulars
we have already mentioned, the affidavit stated that the
informant was reliable and had previously provided
accurate information leading to arrests on five separate
occasions. Finally, the affidavit described the extensive
efforts undertaken by the police to corroborate the infor-
mant’s account. We have no trouble concluding that
this affidavit supported the issuing judge’s finding of
probable cause for the warrant.
We have not overlooked the fact that the law also
permits a challenge to an affidavit on the basis that mate-
rial facts were omitted, where that omission was
made intentionally or with reckless disregard for the
truth. Franks v. Delaware, 438 U.S. 154, 155-56 (1978);
United States v. Sims, 551 F.3d 640, 645 (7th Cir. 2008).
Carson argues that, had the affidavit specified that the
informant’s tip that Carson could be found at the Sybaris
Hotel came from an unidentified third party, no judge
would have found the informant reliable and probable
cause would have been lacking. Once again, we do not
attach such great significance to that one detail. Even if
No. 08-3625 11
the informant had not identified the hotel, there
would have been enough information in the affidavit to
establish probable cause to search Carson’s room
there. Sergeant Wildauer stated in the affidavit that he
independently identified the Sybaris Hotel based on the
informant’s description, because the Sybaris is the only
hotel in Indianapolis with in-room swimming pools.
Moreover, the affidavit notes that the police did not
blindly rely on the informant’s word. Instead, they per-
sonally visited the hotel, requested the names of the hotel
guests, and confirmed that Carson was there. There is
no reason to conclude that the omission of the orig-
inal source of the name of the Sybaris Hotel was made
knowingly or with reckless disregard for the truth.
Nor was this omission material. Even if the informant’s
original source had been disclosed, we do not see a rea-
sonable probability that the results of the proceeding
before the issuing judge would have been different. Sims,
551 F.3d at 645. The issuing judge properly found probable
cause on the basis of adequate information. The omission
of the fact that the name of the hotel where Carson was
arrested initially came from an independent third
source, and not the informant, does not detract from this
finding.
B
Carson also argues that his April 26 confession should
have been suppressed pursuant to Miranda v. Arizona, 384
U.S. 436 (1966), and Missouri v. Seibert, 542 U.S. 600 (2004).
A defendant may waive her Miranda rights only if that
12 No. 08-3625
waiver was made “voluntarily, knowingly and intelli-
gently.” Moran v. Burbine, 475 U.S. 412, 421 (1986). This
court has held that a confession is voluntary if, under
all the circumstances, it is the “product of a rational
intellect and free will and not the result of physical abuse,
psychological intimidation, or deceptive interrogation
tactics that have overcome the defendant’s free will.”
United States v. Dillon, 150 F.3d 754, 757 (7th Cir. 1998). A
finding that the police engaged in coercive activity is
an essential predicate to a finding that a suspect’s con-
fession was involuntary. See Colorado v. Connelly, 479 U.S.
157, 167 (1986). We determine whether police coerced a
suspect by examining things like “the defendant’s age,
education, intelligence level, and mental state; the
length of the defendant’s detention, the nature of the
interrogations; the inclusion of advice about constitu-
tional rights; and the use of physical punishment, includ-
ing deprivation of food or sleep.” United States v. Huerta,
239 F.3d 865, 871 (7th Cir. 2001). When the interrogating
officers should reasonably have known that a suspect
was under the influence of drugs or alcohol, “a lesser
quantum of coercion may be sufficient to call into
question the voluntariness of the confession.” United
States v. Haddon, 927 F.2d 942, 946 (7th Cir. 1991).
Carson asserts that his confession was not voluntary
because he had “overdosed on heroin . . . [and] other mind-
altering substances” when the officers administered his
Miranda rights. According to Carson, he had imbibed an
astonishing amount of liquor: since noon on the day of
his arrest, he had drunk three-quarters of a fifth of whis-
key, a fifth of vodka, and half a bottle of champagne. As
No. 08-3625 13
if that were not bad enough, he had also been using
heroin and cocaine in tandem throughout the day. Carson
elaborates that he had overdosed during the night of his
arrest; he was so high that at one point he was crawling
on all fours in the hotel room; he was vomiting; he con-
tinuously nodded off and woke up; he could not
remember when the police came into the hotel room; his
state of mind was “like a retarded kid” when he was
talking to police officers; and he did not remember re-
ceiving his Miranda warnings. Carson argues that the
officers must have known about his incapacitated state
because he vomited a couple of times during the inter-
rogation and there was cocaine on the table in the
hotel room where he was arrested.
Just as in United States v. LeShore, 543 F.3d 935, 941 (7th
Cir. 2008), Carson is confronted by a threshold problem:
the standard of review. The district court specifically
found that Carson was alert and coherent, never com-
plained about great pain, was given aspirin when he
requested it, and gave no indication that he was
seriously sleep-deprived or drug-induced at the time of
the interrogation. Further, while Carson testified at the
suppression hearing that he had injested copious
amounts of alcohol, cocaine, and heroin, the district
court was negatively impressed with this story for a
number of reasons. First, the court found that Carson
was cognizant enough of his whereabouts to order a
battery charged for his electric shaver just before the
police arrived. Second, both Carson and the police
officers involved in his arrest testified that Carson’s first
reaction to the police entry into his room was the
14 No. 08-3625
entirely rational thought that his gun possession would
heighten any penalty he received for the bank robbery.
Third, Carson commented to the police that he realized
that if he were convicted for bank robbery, he would
qualify for a heightened sentence under the ACCA.
Fourth, Carson told the police that he knew that any
statements he made about the bank robbery would not
affect his probable life sentence. Fifth, Carson told the
police that the gun and drugs were his alone in an effort
to protect Johnson. Sixth, during the course of the inter-
view, Carson chose to answer some questions and
not others, because he said that he did not want to incrimi-
nate the people from whom he had purchased the gun
and a stolen car. Finally, as we mentioned earlier,
Carson told the police that he would not reveal the “trade
secrets” of bank robbers because it was not appropriate
to do so.
Based on these findings, the district court found that
Carson’s testimony about the crippling degree of his
intoxication was incredible. If Carson was not under any
influence that would diminish his capacity, there is no
circumstance that would lead us to question the validity
of his Miranda waiver, under any standard of review.
The judgment of the district court is A FFIRMED.
10-6-09