FILED
United States Court of Appeals
Tenth Circuit
April 29, 2011
UNITED STATES COURT OF APPEALS A. Shumaker
Elisabeth
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-5083
v. (D.C. No. 4:10-CR-00004-CVE-1)
(N. Dist. Okla.)
JIMMIE ESTES THOMPSON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, SEYMOUR, and ANDERSON, Circuit Judges.
Jimmie Estes Thompson was charged with bank robbery and firearms
offenses in violation of 18 U.S.C. §§ 2113(a), 924(c)(1)(A)(i), 924(c)(1)(A)(ii),
924(e)(1), and 922(g)(1). Before trial, he filed a motion to suppress evidence
seized during a warrant-based search of his automobile. The motion requested a
hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), arguing that
material information was intentionally or recklessly omitted from the search
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with the terms and conditions of Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
warrant affidavit. The district court held an evidentiary hearing and denied his
motion. A jury subsequently found him guilty of all counts. He now appeals his
conviction, contending the evidence from his vehicle should have been excluded
under Franks, 438 U.S. 154. We affirm.
Two bank robberies occurred in Tulsa, Oklahoma in September and
October 2009. The first was committed at a MidFirst Bank. The robber showed
the handle of a gun and gave the bank teller a note with the words “100-50-20.
This is a robbery.” Rec., vol. II at 20. Eyewitnesses provided descriptions of the
robber and reported that he fled in a purple Mercury Cougar or Pontiac
Bonneville. Security cameras in the bank and from a nearby business filmed the
robbery and showed the robber fleeing in a Mercury Cougar. The Tulsa Police
Department (“TPD”) released surveillance images of the robber to the media.
One week later, an IBC Bank was robbed. A similar note was used in this
robbery. Security cameras filmed the robbery, and witnesses reported that the
robber fled in a silver Chevrolet HHR. Police again released photos of the robber
to the media
After the second robbery, the TPD received tips from a confidential
informant and an anonymous informant, both of whom identified Mr. Thompson
as the robbery suspect. The anonymous informant also provided a physical
description of Mr. Thompson and claimed he drove a purple Mercury Cougar.
TPD Detective Chris Stout, who was investigating the robberies, and two other
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TPD officers compared photos of Mr. Thompson to the security video images and
concluded Mr. Thompson was the bank robber.
A third individual contacted the Nowata County Sheriff’s Office about the
robberies. He explained that he had previously been incarcerated with Mr.
Thompson and had come into contact with Mr. Thompson at the Claremore Indian
Hospital, where he was trying to avoid law enforcement. The informant stated
that Mr. Thompson had admitted to committing two robberies and had dyed his
hair orange.
Law enforcement officials found Mr. Thompson, with bleached hair, in a
purple Mercury Cougar in the Claremore Indian Hospital parking lot. They
arrested him and towed his vehicle to a storage unit. In the meantime, police
showed a photographic lineup, which included Mr. Thompson, to four
eyewitnesses. None of the eyewitnesses identified any of the individuals in the
photos as the robber.
Detective Stout prepared an affidavit for a warrant to search Mr.
Thompson’s car, which Claremore Police Department Investigator John Singer
signed as the affiant. The affidavit described the getaway car from the first
robbery as a “1990’s model Mercury Cougar two door, purplish colored vehicle,”
and the second getaway car as a silver Chevrolet HHR. Rec., vol. I at 36. It
provided eyewitness descriptions of the robber, and noted that “the suspect in
both bank robberies resembled the same description and in both cases the suspect
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presented a similar hand written robbery note.” Id. The affidavit described
information police received from the anonymous caller, who identified Mr.
Thompson and described his purple Mercury Cougar, and the tip police had
received that Mr. Thompson and his Mercury Cougar were at the Claremore
Indian Hospital, where police observed and arrested him. It also stated,
“Detectives observed that Jimmie Thompson matched the person seen in the video
surveillance images” from the robberies. Id. at 36-37. The affidavit did not
mention that four eyewitnesses had failed to identify Mr. Thompson as the robber
in a photo lineup, nor that at least one witness of the first robbery described the
getaway car as a Bonneville.
The search warrant was issued. During the search, officers found the title
to the vehicle, which was in Mr. Thompson’s name, clothing, a newspaper, and a
semi-automatic firearm.
Under Franks, 438 U.S. at 155-56,
[w]e exclude evidence discovered pursuant to a search warrant when
(1) a defendant proves by a preponderance of the evidence “the
affiant knowingly or recklessly included false statements in or
omitted material information from an affidavit in support of a search
warrant and (2) after excising such false statements and considering
such material omissions we conclude the corrected affidavit does not
support a finding of probable cause.”
United States v. Campbell, 603 F.3d 1218, 1228 (10th Cir. 2010) (quoting United
States v. Garcia-Zambrano, 530 F.3d 1249, 1254 (10th Cir. 2008)) (alterations
omitted); see also United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir.
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1997). “The standards of deliberate falsehood and reckless disregard set forth in
Franks apply to material omissions as well as affirmative falsehoods.” United
States v. McKissick, 204 F.3d 1282, 1297 (10th Cir. 2000). An omission is
material if it is “so probative as to negate probable cause.” Stewart v. Donges,
915 F.2d 572, 582 n.13 (10th Cir. 1990).
In his motion to suppress, Mr. Thompson contended Franks applies because
Officer Singer intentionally or recklessly misled the magistrate by omitting from
the affidavit information about the photographic lineup and a witnesses’s
description of the first getaway car as a Bonneville. After the evidentiary
hearing, the district court found Mr. Thompson had failed to show Officer Singer
omitted the information to mislead the magistrate. The court also found that,
even assuming the information was omitted knowingly or with reckless disregard
for the truth, Mr. Thompson had failed to show the omissions were material.
Finally, the court found pursuant to United States v. Leon, 468 U.S. 897 (1984),
that even if the warrant was invalid, the officers relying on the warrant had acted
in good faith and therefore the evidence was not subject to the exclusionary rule.
Mr. Thompson appeals the district court’s Franks ruling, but he does not appeal
the court’s alternative finding that the good faith exception would apply even if
the warrant lacked probable cause.
We review de novo the district court’s ultimate determination of
reasonableness under the Fourth Amendment, but we accept the district court’s
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factual findings unless they are clearly erroneous. United States v. Avery, 295
F.3d 1158, 1167 (10th Cir. 2002). “Specifically, we review for clear error the
district court’s findings regarding the truth or falsity of statements in the affidavit
and regarding the intentional or reckless character of such falsehoods. Whether a
corrected affidavit supports a finding of probable cause is a question of law that
we review de novo.” Garcia-Zambrano, 530 F.3d at 1254 (citations omitted).
We agree with the district court that the omitted information was
immaterial and does not negate probable cause if it were included in the affidavit.
The failure of witnesses to identify Mr. Thompson as the suspect from a photo
lineup does not negate probable cause. The affidavit explained that detectives
determined Mr. Thompson matched the images from the surveillance video. It
also described the anonymous tip that identified Mr. Thompson as the robber.
More importantly, Mr. Thompson was found in a purple Mercury Cougar that
matched the getaway car from the first robbery. Even if a description of the
photo lineup had been included in the affidavit, we conclude the affidavit still
would have supported the issuance of a warrant. Similarly, a witness’s
identification of the first getaway car as a Pontiac Bonneville was immaterial.
Other eyewitness testimony described the getaway car as a purple Mercury
Cougar and surveillance video corroborated their description of the car. The
affidavit discussed an anonymous call that identified the suspect as Mr.
Thompson and described his car as a purple Mercury Cougar. The affidavit also
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explained Mr. Thompson was found in an automobile that matched this getaway
car. A witness’s description of the getaway car as a Pontiac Bonneville would not
have defeated probable cause. Since neither of these pieces of information,
separately or together, would negate probable cause, the omitted information was
immaterial. The district court properly denied Mr. Thompson’s motion to
suppress.
Because the information omitted from the affidavit was immaterial to the
magistrate’s probable cause determination, we need not determine whether the
omissions were the result of “reckless disregard for the truth” or a “deliberate
falsehood.” See Kennedy, 131 F.3d at 1376-77. Similarly, because the warrant
was supported by probable cause, we need not consider whether, if the warrant
had been invalid, the evidence would nonetheless be admissible under the good-
faith exception to the exclusionary rule, as provided in United States v. Leon, 468
U.S. 897 (1984).
For the foregoing reasons, we AFFIRM Mr. Thompson’s convictions.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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