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United States v. Patterson

United States Court of Appeals, First Circuit

December 13, 2017

JAMES PATTERSON, Defendant, Appellant.


          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.

          Before Torruella, Thompson, and Barron, Circuit Judges.

          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.


         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 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 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.

         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.

         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 ...

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