FROM THE UNTIED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Nathaniel M. Gorton, U.S. District Judge
Jonathan Shapiro, with whom Mia Teitelbaum and Shapiro
Weissberg & Garin, LLP were on brief, for appellant.
R. De Vincentis, Assistant United States Attorney, with whom,
William D. Weinreb, Acting United States Attorney, was on
brief, for appellee.
Torruella, Thompson, and Barron, Circuit Judges.
BARRON, Circuit Judge.
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.
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.
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
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
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.
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 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.
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
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.
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.
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
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.
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 ...