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United States v. Banks

United States Court of Appeals, Tenth Circuit

March 6, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MICHAEL EUGENE BANKS, a/k/a Bird, a/k/a Birdie, a/k/a Tiny Bird, Defendant-Appellant.

         Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:15-CR-00093-M-4)

          William D. Lunn, Tulsa, Oklahoma, for Defendant-Appellant.

          David McCrary, Assistant United States Attorney (Mark A. Yancey, United States Attorney, with him on the briefs), Office of the United States Attorney, Western District of Oklahoma, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

          Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges.

          MORITZ, CIRCUIT JUDGE.

         A jury convicted Michael Banks of sixteen drug-related crimes, and the district court sentenced him to life in prison plus 60 months. This is Banks' direct appeal. For the reasons explained below, we affirm his convictions and sentence.

         Background

         In the fall of 2014, law enforcement obtained information suggesting that members of the Rollin 90s Crips, led by Daryl Ingram, were manufacturing and distributing cocaine base in Oklahoma City. As a result, the Oklahoma City Police Department, the FBI, the United States Postal Service, and the IRS launched a joint investigation into the gang's activities. That investigation resulted in a 24-count indictment against Banks, Ingram, Anthony Anderson, Michael Brown, and Xavier Guerrero. In part, the indictment alleged two related conspiracies: (1) conspiracy to possess with intent to distribute cocaine base and (2) conspiracy to launder the drug-trafficking proceeds. The remaining counts alleged that Banks, Ingram, and Anderson individually committed various gun, drug, money-laundering, and witness-tampering offenses.

         The evidence at trial was compelling. Three former gang members testified that Banks and Ingram were members of the Rollin 90s. Travel records and photographs showed that these men were connected to one another. Banks' mother testified that she assumed Banks sold drugs for a living. Two witnesses reported seeing Banks with cocaine base in a hotel room near Penn Square Mall. And Banks was arrested twice in 2014 at houses where law enforcement discovered large amounts of cocaine base. Banks' non-conspiracy convictions stemmed from these two arrests.

         The first of these two arrests took place in July, during a consensual search of Lillie Nelson's Oklahoma City home. At the time of the search, Banks was standing just inside the closed door of Nelson's son's bedroom, along with Nelson's son, Willie Evans, and one other man. The officer who searched that bedroom found two guns in a reclining chair and ammunition in a shoebox in the closet. Also in the closet, near the bottom of a nearly full clothes hamper, he found a Crown Royal bag containing $1, 500 in cash, three baggies containing a total of 130 grams of cocaine base, and one baggie of cocaine powder weighing approximately five grams. Evans claimed responsibility for the guns and drugs found in his room. But in recorded jail calls, Banks implied that the drugs were his; he told his mother that Evans took responsibility for "all that shit, my shit." R. vol. 3, 570-71. This first arrest led to Banks' conviction for possession of cocaine base with intent to distribute.

         The second of Banks' two arrests took place in November 2014, at a house in Spencer, Oklahoma. Officers obtained an arrest warrant for Banks in mid-November and received information on November 28 that Banks had threatened to shoot one of the government's informants. Based on this threat, law enforcement obtained a state-court order authorizing T-Mobile to gather data from Banks' cell phone and asked T-Mobile to ping[1] Banks' cell phone and determine its location. T-Mobile did so, and that led law enforcement to the Spencer house. When the officers arrived, the individuals in the house initially barricaded themselves inside. After about an hour, Banks came out and surrendered peacefully, along with his two girlfriends, Satin Watley and Gabrielle Stevenson, and his infant child.

         The officers then entered the house and conducted a protective sweep, looking for one of Banks' coconspirators. The coconspirator wasn't there. But during the sweep, officers saw a variety of evidence in plain view. These events led to Banks' convictions for possessing cocaine with intent to distribute, manufacturing cocaine base, possessing a gun in furtherance of a drug crime, and being a felon in possession of a gun.

         Regarding the money-laundering charges, trial testimony established that Banks often asked his girlfriends and mother to buy money orders or make deposits with cash that he gave them. For instance, Stevenson testified that Banks gave her thousands of dollars in cash and asked her (1) to buy money orders and send them to California and (2) to deposit money into a specific bank account. Watley likewise testified that she made at least four cash deposits into a particular bank account at Banks' direction. And Banks' mother testified that she bought four money orders at Banks' direction to send to California. She said that Watley accompanied her to the post office to buy the money orders, provided the money from Banks, and gave her the California address.

         Banks, Ingram, and Brown were tried as codefendants. The government presented testimony from (1) various law-enforcement officers who participated in the investigation, (2) former gang members, (3) Banks' mother, (4) both of Banks' girlfriends, and (5) some of the individuals in California who received the money orders and deposits. The jury convicted Banks of 16 of the 18 charges against him, and the district court sentenced him to life in prison plus 60 months.[2] Banks now appeals, challenging his convictions and his sentence.

         Analysis

         Suppression Issues

         Banks first argues that the district court should have suppressed the evidence found at the Spencer house after his second arrest because (1) the state court issued his arrest warrant without probable cause, (2) the state court issued the ping order without probable cause, and (3) law enforcement performed an unjustified protective sweep of the Spencer house after arresting him. We review the district court's factual findings on suppression motions "for clear error, viewing the evidence in the light most favorable to the government, " but we review de novo the district court's ultimate determination of whether probable cause supported a search or seizure. United States v. Hauk, 412 F.3d 1179, 1185 (10th Cir. 2005).

         Arrest Warrant

         "[A]n arrest warrant must be supported by probable cause to comply with the Fourth Amendment." Taylor v. Meacham, 82 F.3d 1556, 1562 (10th Cir. 1996). When a court determines that probable cause exists, the reviewing court's task "is merely to ensure the [g]overnment's affidavit provided a 'substantial basis' for reaching that conclusion." United States v. Biglow, 562 F.3d 1272, 1280 (10th Cir. 2009) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)).

         Here, Matthew McRorie, a detective with the Oklahoma City Police, asked the state court to issue an arrest warrant for Banks on charges of conspiring to commit aggravated drug-trafficking, conspiring to commit aggravated manufacturing, and conspiring to traffic cocaine base. McRorie's affidavit provided an overview of the investigation and identified Ingram as the leader of the Rollin 90s and the gang's related drug-trafficking organization. Three confidential informants provided consistent reports about the drug-trafficking organization, and two of them identified Banks as a member just underneath Ingram in that organization's hierarchy. McRorie's affidavit also included details about Banks' July 2014 arrest, including that Banks made a call from jail to discuss having Ingram bail him out. Based on McRorie's affidavit, the state court issued an arrest warrant for Banks. When Banks challenged this arrest warrant before trial, the federal district court found that the state court had a substantial basis for concluding that there was probable cause for the warrant.

         Banks argues that the affidavit didn't establish probable cause because (1) it included information from one reliable informant who didn't identify Banks as being involved in the conspiracy, (2) it included information from two other informants who did identify Banks as being involved but who had no "track record" of reliability, Aplt. Br. 20, and (3) law enforcement didn't independently corroborate the informants' information by conducting a controlled drug deal with Banks. As we explain, these arguments fail.

         "Probable cause for an arrest warrant is established by demonstrating a substantial probability that a crime has been committed and that a specific individual committed the crime." Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996). When deciding whether probable cause exists, a court must consider the totality of the circumstances, "including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information." Gates, 462 U.S. at 238. At the same time, "[w]hen there is sufficient independent corroboration of an informant's information, there is no need to establish the veracity of the informant." United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000). No particular method of corroboration is required "so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge." United States v. Mathis, 357 F.3d 1200, 1204 (10th Cir. 2004) (quoting Jones v. United States, 362 U.S. 257, 269 (1960)).

         Here, the statements from the three informants corroborated each other. See id. at 1206 (discussing sufficiency of statements from three cooperating witnesses and noting, in part, "that the information provided by the informants was internally corroborated in several respects"). All three informants identified Ingram as the leader of the drug-trafficking organization and identified Aundre Cade, Tyree Cade, and Gilbert Jacobs as lower-level members. The first and third informants additionally identified Leedarran Cargle and Christopher Little as younger, lower-level members. And the second and third informants both identified Banks as part of the organization's leadership. Banks correctly notes that the first informant, the only one with an independent track record of reliability, didn't specifically identify Banks. But that's not determinative where, as here, the two other informants did identify Banks and all three informants provided similar and overlapping information. See, e.g., United States v. Le, 173 F.3d 1258, 1266 (10th Cir. 1999) (noting that consistency in reports from independent informants validates those reports).

         In addition to this internal corroboration, McRorie's affidavit also demonstrated that law enforcement officers independently investigated several aspects of the informants' statements. For example, the third informant reported that Aundre Cade hid drugs for Ingram at a specific apartment. Law-enforcement officers (1) confirmed that Cade leased the identified location, (2) installed a surveillance camera outside that location, and (3) confirmed the third informant's report that Ingram visited that location almost every day.

         It is true, as Banks points out, that the officers didn't conduct any controlled drug purchases. And statements from informants "may be corroborated through the arrangement of a controlled purchase." United States v. Nelson, 450 F.3d 1201, 1214 (10th Cir. 2006) (emphasis added) (quoting United States v. Artez, 389 F.3d 1106, 1111 (10th Cir. 2004)). But officers need not "corroborate information received from an informant through personal observation." Mathis, 357 F.3d at 1204. "Rather, an officer simply must have knowledge of other matters that reasonably corroborate the informant's statements." Id. Thus, the officers weren't required to arrange controlled purchases. It's enough that (1) the officers knew the informants corroborated each other and that (2) the officers then independently corroborated certain details from the informants. Accordingly, the district court correctly rejected Banks' assertion that the affidavit rested on unreliable, unverified statements from confidential informants.

         Next, Banks argues that McRorie intentionally or recklessly omitted from his affidavit critical information regarding Banks' July 2014 arrest. Specifically, he points out that while McRorie noted that Banks was found in a bedroom in which officers also discovered over 100 grams of cocaine base, the affidavit failed to mention that the drugs in the bedroom were "hidden from view beyond [Banks'] knowledge." Aplt. Br. 19.

         Intentionally or recklessly omitting information from an affidavit when that information would negate probable cause violates the Fourth Amendment. See Taylor, 82 F.3d at 1562. So when an "affidavit contains intentional, knowing[, ] or reckless omissions, " the reviewing court must determine the existence of probable cause by adding in the omitted facts and determining whether the warrant "would have issued in a but-for world where the attesting officer faithfully represented the facts." United States v. Herrera, 782 F.3d 571, 575 (10th Cir. 2015).

         Here, even if we assume that McRorie intentionally or recklessly failed to mention that that the drugs were hidden from Banks' view, we would find no error. That's because the warrant would have issued even if McRorie had included that particular detail. It remains the case that police found Banks in a room in which they also found cocaine base, although the cocaine wasn't in Banks' immediate view. That fact, combined with the remainder of the affidavit, including the informants' reports, sufficiently established probable cause to believe that Banks had committed a drug-related crime. See Wolford, 78 F.3d at 489.

         Banks also argues that the affidavit improperly rested upon McRorie's own summaries and conclusions about Banks' involvement in the drug-trafficking organization. Banks is correct that "a warrant must be supported by facts demonstrating probable cause, not by police summaries of what they have concluded from such facts." United States v. Roach, 582 F.3d 1192, 1203 (10th Cir. 2009). But Banks' two-sentence argument on this point-which ignores both (1) the three informants' reports and (2) law enforcement's independent investigation of those reports-is too cursorily briefed to provide a basis for reversing the district court. See Fed. R. App. P. 28(a)(8)(A) (noting that "the argument . . . must contain . . . appellant's contentions and the reasons for them"). Thus, we consider this argument waived. See Bronson v. Swenson, 500 F.3d 1099, 1104 (10th Cir. 2007) (refusing to consider arguments that are inadequately briefed).

         In sum, as the district court concluded, McRorie's affidavit provided a substantial basis for the state court to determine that probable cause existed to arrest Banks.

         Ping Order

         Law enforcement arrested Banks in Spencer in the early morning hours of November 29, 2014-two weeks after the state court issued the arrest warrant. They located Banks by asking T-Mobile to ping his phone and determine its current location. Banks argues that this ping was improper for a variety of reasons and that the district court should have suppressed the evidence stemming from it. We begin with a summary of the events leading up to the ping.

         On November 28, a former member of the Rollin 90s and an informant working with law enforcement contacted McRorie. The informant told McRorie about a threatening phone call from Banks, in which Banks said that he and his "home boys" were going to "come down and shoot [the informant] up." R. vol. 3, 45. In the background of Banks' call, the informant heard Tyree Cade make additional threats. The informant gave McRorie the cell-phone number that Banks called from. McRorie relayed these threats to other officers who had been searching for Banks and Cade. Those officers prepared an affidavit asking the state court to issue a ping order so that law enforcement could gather location data from Banks' phone.

         The state court issued the ping order after concluding that the affidavit met the standards set out in the Stored Communications Act (SCA) of 1986, 18 U.S.C. §§ 2701-12. See 18 U.S.C. § 2703(d) (allowing courts to order communication providers to disclose certain stored records to governmental entities "if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe" that the information sought is "relevant and material to an ongoing criminal investigation"). The order required T-Mobile to disclose subscriber information including historical and real-time CSLI and to determine, in real time, the location of Banks' cell phone.

         Sergeant Monte Stephens testified that he served the ping order on T-Mobile just before 10 p.m. on November 28. But a T-Mobile representative said the office was "done processing" "normal ping orders" until the following Monday. R. vol. 3, 80. Stephens then submitted an exigent-circumstance form to T-Mobile. On the form, Stephens described the emergency created by the threat to the informant: "Subject has been making threats to a state[']s witness with this phone number. He is armed and dangerous. Threat should be considered credible due [to] the suspect['s] involvement with a known criminal street gang." R. vol. 2, 34 (sealed). Stephens also checked a box on the form indicating that the emergency "render[ed] it unfeasible to obtain a search warrant or probable cause court order." Id.

         Stephens received the "first ping at 12:15 a.m. on the morning of [November] 29th." R. vol. 3, 81. The ping identified the location of Banks' cell phone as at or "within three meters" of an address in Spencer. R. vol. 3, 114. The officers ultimately found Banks at this address and arrested him.

         Before trial, Banks moved to suppress all evidence seized as a result of his arrest, arguing (1) that the ping order wasn't supported by probable cause and (2) that the district court's decision to issue the ping order ran afoul of the SCA and Oklahoma law. In response, the government argued that (1) probable cause existed; (2) even if it didn't, exigent circumstances justified pinging Banks' phone; and (3) the district court followed the SCA and Oklahoma law when issuing the ping order. The district court construed Banks' motion as asserting only violations of the SCA and Oklahoma law. And because suppression isn't an available remedy for such violations, it denied Banks' motion. See United States v. Perrine, 518 F.3d 1196, 1202 (10th Cir. 2008) (explaining that SCA provides statutory remedies for SCA violations and that nonconstitutional "violations of the [SCA] do not warrant exclusion of evidence"); United States v. Green, 178 F.3d 1099, 1105 (10th Cir. 1999) (stating that exclusionary rule only applies to violations of federal constitution, not violations of state law).

         On appeal, Banks and the government exchange a variety of arguments about the ping order, the exigent-circumstances form, and the legal standards governing the methods used to locate Banks. We begin our analysis with the Fourth Amendment, which prohibits the government from performing unreasonable searches and seizures. U.S. Const. amend. IV. In so doing, we assume, without deciding, that pinging Banks' phone was a search under the Fourth Amendment.[3]

         A search or seizure is presumptively reasonable if it's based on a warrant supported by probable cause. See Brigham City v. Stuart, 547 U.S. 398, 403 (2006). But the Fourth Amendment itself doesn't require a warrant-it requires reasonableness. Id. As a result, there are various exceptions to the warrant requirement. Id. One such exception is for exigent circumstances: "We have previously applied the 'exigent circumstances' exception . . . when the circumstances posed a significant risk to the safety of a police officer or a third party." United States v. Najar, 451 F.3d 710, 717 (10th Cir. 2006). Exigent circumstances exist when "(1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable." Id. at 718.

         As the government contends, exigent circumstances justified pinging Banks' phone. According to law-enforcement officers' testimony at the suppression hearing, Banks called an informant and threatened to kill him, saying that he and his "home boys" were going to "come down and shoot [the informant] up." R. vol. 3, 44-45. Officers testified that they knew Banks was associated with a "violent street gang, " and had a history of violent behavior. R. vol. 3, 61. So the threat to the informant provided an objective basis for the officers to believe that the informant needed immediate protection from Banks.[4] See Najar, 451 F.3d at 718. And the manner and scope of the resulting search was reasonable-the officers asked T-Mobile to ping Banks' phone to locate Banks, thereby reducing or eliminating the threat to the informant. See id. Thus, pinging Banks' phone was reasonable under the Fourth Amendment.

         We reach this conclusion without considering the validity of the state-court ping order. The record demonstrates that the officers never actually executed the ping order-when officers presented the ping order, a T-Mobile representative advised them that the company had stopped processing "normal ping orders . . . for the weekend." R. vol. 3, 80. Instead, officers completed a separate exigent-circumstance form, which described the emergency created by the threat to the informant and clearly indicated that the emergency made it unworkable to obtain a search warrant. Because the state-court warrant was never utilized and because the search was otherwise justified under the Fourth Amendment, it's immaterial whether the state-court order was supported by probable cause or whether it complied with the SCA.

         In summary, by challenging the lawfulness of the ping order, Banks raises an issue of first impression regarding whether tracking a cell-phone's real-time location is a search under the Fourth Amendment. But neither party adequately briefs that issue, so we decline to address it. Assuming that pinging Banks' cell phone was a search, it was justified by the exigent circumstances created when Banks threatened to kill the informant. Thus, the district court didn't err in denying Banks' motion to suppress the evidence that law enforcement found by pinging his phone.

         Protective Sweep

         After pinging Banks' phone, law enforcement found Banks at the Spencer house, where he peacefully surrendered after a one-hour standoff. The officers arrested Banks and then conducted a protective sweep of the home because they believed that Tyree Cade was inside. Although they didn't find Cade during the sweep, they discovered other evidence in plain view, including guns and cocaine base in the attic and items in the kitchen connected to manufacturing cocaine base.

         Banks asked the district court to suppress this evidence. The district court denied Banks' motion, concluding that the protective sweep was warranted because law enforcement reasonably believed that Cade was in the Spencer house and posed a danger to the officers and others. Specifically, the district court cited two facts supporting law enforcement's reasonable belief: (1) the threatened informant said that he heard Cade making threats, along with Banks, during the phone call a few hours earlier, and (2) during the standoff, law enforcement saw the gutters shake, suggesting that someone went into the attic.

         On appeal, Banks first asserts that the sweep wasn't reasonable under the Fourth Amendment and thus the district court should have suppressed the evidence the officers found in plain view. For the reasons discussed below, we disagree.

         "A 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Maryland v. Buie, 494 U.S. 325, 327 (1990). This type of search is limited to a "cursory visual inspection of those places in which a person might be hiding." Id. A protective sweep is only justified and constitutionally permissible if the officers had reasonable suspicion, based on "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. at 334. The sweep should "last[] no longer than is ...


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