U.S. v. Bishop

• Decision Date: 20 November 1989
• Docket Number: No. 88-2757,88-2757
• Citation: 890 F.2d 212
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Robert Kelly BISHOP, Defendant/Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 212

890 F.2d 212

UNITED STATES of America, Plaintiff/Appellee, v. Robert Kelly BISHOP, Defendant/Appellant.

No. 88-2757.

United States Court of Appeals, Tenth Circuit.

Nov. 20, 1989.

William P. Earley, Asst. Federal Public Defender, Oklahoma City, Okl., for defendant/appellant.

Leslie M. Kaestner, Asst. U.S. Atty. (William S. Price, U.S. Atty., Oklahoma City, Okl., and H. Lee Schmidt, Asst. U.S. Atty., were on the brief), for plaintiff/appellee.

Before BALDOCK, McWILLIAMS and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Defendant was convicted after a jury trial in the United States District Court for the Western District of Oklahoma of two counts of bank robbery under 18 U.S.C. Sec. 2113(a). On appeal, defendant argues that the district court improperly denied his motions to suppress evidence obtained as a result of an allegedly deficient warrant, to grant a new trial because of the prosecution's tardy disclosure of impeachment evidence, and to acquit for insufficient evidence. We affirm the district court's orders denying each of these motions.

BACKGROUND

On June 1, 1988, the Mercantile Bank of Moore, Oklahoma, was robbed by a man who used a note claiming he possessed a gun. Kim Jolly, the teller from whom the money was taken, described the perpetrator as a white male, wearing a maroon sweater, approximately twenty-five years of age, weighing one hundred forty pounds, with brownish-blond collar length hair and a razor-stubble beard growth.

On June 6, 1988, F.B.I. agents investigating the robbery were notified by an Oklahoma City police detective of an anonymous phone call concerning the robbery. According to the officer, the informant had told him that the "white male" who had robbed the bank in Moore was residing with a woman named Karen. Although the informant did not know Karen's last name, he told the officer Karen's phone number and place of employment. The informant did not state the basis of his knowledge.

The F.B.I. agents confirmed the information supplied by the informant. The agents traced the phone number to apartment C1, 7910 Northwest Twenty-First Street, Oklahoma City. The apartment manager confirmed that this was the address of a Karen Barber who worked at the restaurant indicated by the informant.

On June 6, 1988, two service repairmen who had entered apartment C1 to repair the plumbing told the F.B.I. agents that a white male with beard stubble and collar-length, brownish-blond hair weighing about one hundred forty pounds was staying in the apartment where Karen Barber resided. The next day, a resident of another apartment in the building confirmed that a man matching the description given by the repairmen had been staying in Karen Barber's apartment.

On June 8, 1988, on the basis of those facts, the agent in charge sought and obtained a warrant authorizing a search of Karen Barber's apartment and automobile. Also on that day, but before the agents executed the search warrant, the Capitol Federal Savings Bank of Yukon, Oklahoma, was robbed by a man matching the description of the Mercantile Bank robber.

On the afternoon of June 8, 1988, the F.B.I. agents entered Karen Barber's apartment while defendant was there. The agents searched the apartment and the automobile as authorized by the warrant. In the bathroom, the agents discovered a "wad" of money closely corresponding in denominations and amount to the money taken during the second robbery. The agents also found a black shirt matching the description of the one worn by the robber of the Capitol Federal Bank. Defendant was arrested and taken into custody.

On June 21, 1988, defendant was charged with both of the robberies in a two-count indictment under 18 U.S.C. Sec. 2113(a). On the basis of eyewitness identifications and other evidence, defendant was convicted by a jury of both counts of robbery. Defendant was sentenced to serve two concurrent twenty-year sentences. Defendant now appeals the district court's rulings denying his motions to suppress evidence, to declare a mistrial, and to acquit for insufficient evidence.

1. Motion to Suppress Evidence Obtained by the Search Warrant

A. Probable Cause for the Warrant.

Defendant contends that there was not probable cause to issue the warrant to search Karen Barber's apartment and automobile because none of the facts supplied by the anonymous informant (other than the conclusory statement that the "white male" staying with Karen was the robber) were addressed to defendant's culpability nor was any basis provided to establish the reliability of the informant's conclusion that defendant was the person who had robbed the Mercantile Bank. Defendant argues that the F.B.I. agents' independent corroboration of many of the facts that were supplied by the informant did not bolster the probability of discovering incriminating evidence through the search authorized by the warrant because they were not facts disclosing special knowledge on the part of the informant relating to the crime, and because this informant had not previously proven himself reliable.

We begin our analysis of defendant's claims "recognizing that a magistrate's 'determination of probable cause should be paid great deference by reviewing courts.' " United States v. Martinez, 764 F.2d 744, 746 (10th Cir.1985) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983)). On appeal, this court need only satisfy itself The Supreme Court determined the type of information that an anonymous informant must supply in order to form the basis for probable cause in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In Gates, an anonymous letter was sent to the Bloomingdale, Illinois, Police Department describing the manner in which a Mr. and Mrs. Gates purchased illegal drugs in Florida and transported them back to Illinois. Id. at 225, 103 S.Ct. at 2325. The anonymous letter predicted that the Gates couple would engage in further smuggling. Id. As the letter predicted, Mr. Gates flew to Florida and drove home the next day with his wife who had driven to Miami ahead of him. Id. at 226, 103 S.Ct. at 2325. A warrant was obtained to search the Gates household, and large quantities of drugs were discovered. Id. at 226-27, 103 S.Ct. at 2325-26.

"that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Id. (quoting Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332). The determination of whether there was a substantial basis for concluding probable cause existed must be based on the "totality-of-the-circumstances." Gates, 462 U.S. at 238, 103 S.Ct. at 2332.

The Supreme Court agreed with the Illinois Supreme Court that, because the anonymous letter provided no indication of the author's reliability or the basis for his speculation, standing alone the letter was an insufficient basis for establishing probable cause. Id. at 227, 103 S.Ct. at 2326. However, the Court went on to find that other considerations sufficiently augmented the credibility of the letter to validate the search warrant. First, the Court pointed to Mr. Gates' brief stay in Florida, a known source of illegal drugs. Id. at 243, 103 S.Ct. at 2334. Second, the Court held that the anonymous informant's accurate prediction of the Gateses' method of operation sufficiently established the veracity and reliability of the informant. Id. at 244, 103 S.Ct. at 2335. Finally, the Court held that the anonymous informant's disclosure of the Gateses' future actions established a basis upon which a magistrate "could properly conclude that it was not unlikely that he also had access to reliable information of the Gateses' alleged illegal activities." Id. at 245, 103 S.Ct. at 2336.

The amount of corroborating evidence presented to the magistrate in Gates in conjunction with the anonymous tip there was greater than that presented in this case because the informant here did not predict any future activity of defendant. Moreover, unlike the anonymous letter at issue in Gates, the substance of the anonymous tip in this case demonstrated no special knowledge of the crime. Finally, the informant in this case, as in Gates, had not previously proven himself reliable. See Gates, 462 U.S. at 242 n. 12, 103 S.Ct. at 2334 n. 12 (discussing the significance of an informant's proven reliability in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)).

An examination of the Tenth Circuit's application of Gates makes clear that when this court upheld search warrants in the past, it has typically been presented with a greater showing of probable cause than that which satisfied the district court below. In United States v. Rutherford, 824 F.2d 831 (10th Cir.1987), this court held that there was probable cause for a warrant to search the car of a defendant based upon allegations that he had visited a house that was under surveillance for narcotics sales, emerged with a bag, and then sped away when approached by a police car. Id. at 835. In Rutherford, the basis of the surveillance of the house was an anonymous tip by an informant who claimed his daughter had visited the house and viewed large quantities of illegal drugs. Id. ¹ This court held that the anonymous tip (which demonstrated sufficient factual knowledge of the contents of the house), combined with the defendant's actions after leaving the house, added up to probable cause validating the warrant to Similarly, in United States v. Martinez, 764 F.2d 744 (10th Cir.1985), this court affirmed the validity of a search warrant where an anonymous phone caller demonstrated great familiarity with the defendant's drug smuggling activity. In Martinez, the informant predicted precisely when Martinez would be arriving in Oklahoma City with a kilo of cocaine concealed in a brown or blue suitcase on a flight from Miami, Florida, having begun his travel in Venezuela. Id. at 745. The informant thus knew the details of defendant's travel plans...