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.
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.
HARTZ, PHILLIPS, and MORITZ, Circuit Judges.
MORITZ, CIRCUIT JUDGE.
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.
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.
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.
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.
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 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.
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.
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
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. Banks now appeals, challenging his
convictions and his sentence.
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 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)).
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.
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.
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)).
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
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.
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
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.
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).
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
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).
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.
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.
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.
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.
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.
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
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).
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
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.
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. 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.
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.
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.
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.
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.
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.
'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 ...