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United States v. Sutton

United States District Court, N.D. Indiana, Fort Wayne Division

May 16, 2017




         During the investigation of an attempted bank robbery that occurred on June 17, 2015, investigators came to believe that another robbery attempt, on a different institution, was imminent. Investigators obtained a search warrant that authorized placement of a tracking device on a white 2006 Pontiac as one of the vehicles they suspected would be used to facilitate the robbery. Defendant Shaiki Sutton had a property interest in the white Pontiac, and has filed a Motion to Suppress on grounds that the warrant should not have been issued because the Search Warrant Affidavit did not provide a substantial basis for a probable cause determination. For the reasons set forth in this Opinion and Order, the Court is unpersuaded by the Defendant's arguments and denies his Motion to Suppress.


         The five co-Defendants in this case, Sutton, Freddie L. Church, Jr., Tyler M. McCarthy, Christian Smith, and Autumn J. Carter, have been charged with conspiracy to affect commerce by robbery under the Hobbs Act, 18 U.S.C. § 1951(a) and (b) (Count 1); attempted robbery under the Hobbs Act, 18 U.S.C. § 1951(a) and (b) (Count 3); attempted entry into a credit union with the intent to commit armed bank robbery, 18 U.S.C. § 2113(a) and (d) (Count 4); and, carrying a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c) (Count 5) [Indictment, ECF No. 36]. Two of the Defendants, McCarthy and Smith, are also charged with a separate attempt to commit armed bank robbery, 18 U.S.C. § 2113(a) and (d) (Count 2).

         On August 25, 2016, Defendant Sutton filed a Motion to Suppress Evidence [ECF No. 116]. The Defendant asked that the Court suppress “all evidence seized by the Government as a result of the Government's use of a Global Positioning Device (GPS).” Because the police obtained a search warrant permitting them to attach the GPS unit to his vehicle, the Defendant's Motion turned on the sufficiency of Search Warrant Affidavit that the issuing judge relied upon to authorize the placement of the GPS tracking device. The Defendant's Motion also left open the possibility that the Affidavit disclosed false or misleading material in violation of Franks v. Delaware, 438 U.S. 154 (1978).

         In response, the Government asserted that the Defendant had to first establish standing to challenge the warrant and that, in any event, the warrant was properly issued upon sufficient probable cause. The Government also noted that, after the tracking device was installed on the white Pontiac, the movements of that vehicle were nonetheless witnessed by physical surveillance, both on the ground and in the air. Therefore, the traffic stop that led to the discovery of the evidence that the Defendant sought to suppress resulted from the independent observations of the officers, i.e. an independent source, and not from the tracking information. The Government stated that an evidentiary hearing would be necessary to resolve the standing issue and, possibly, the independent source issue.

         On October 21 and 27, 2016, the Court conducted evidentiary hearings. The parties' post-hearing briefs have narrowed the issues for consideration. Based on the testimony provided during the evidentiary hearings, the Government is no longer contesting the Defendant's standing to challenge the attachment of the GPS unit to the white Pontiac. The Defendant's Supplemental Brief [ECF No. 221] and Reply Brief [ECF No. 239], are chiefly concerned with whether the Search Warrant Affidavit provided sufficient grounds to authorize placement of the GPS device on his car. However, the Defendant also presents argument that extends beyond the four corners of the Affidavit, arguing that the Affidavit should have included information about the informant's criminal history.


         On July 2, 2015, Darrin Strayer, a Detective with the Fort Wayne Police Department (FWPD), submitted a Search Warrant Affidavit to an Allen Superior Court judge. The judge granted the Warrant, which authorized the placement of GPS tracking devices on two vehicles for thirty days. One was a 2006 white Pontiac and the other a 2007 red Chrysler.

         A. Contents of the Search Warrant Affidavit

         According to Detective Strayer's Affidavit, he believed that the two vehicles “have been and will be utilized as primary modes of transportation in connection with a criminal enterprise involved in the robberies of banks and credit unions.” (Aff. 1, Ex. 2 to Suppression Hr'g.) He stated that use of a GPS tracking unit on these vehicles would facilitate the identification of individuals associated with the criminal enterprise. (Id. 3.)

         In support of his belief, Detective Strayer provided background about an attempted robbery of the Fire/Police Credit Union located on Inwood Drive in Fort Wayne on June 17, 2015, by two masked individuals. Three days after the attempted robbery, a “cooperating individual” told FWPD Detective Scott Criswell that he had information about two local bank robberies. On June 22, 2015, a member of the FBI Robbery Task Force, Roy Stuckey, met with the cooperating individual, who identified Christian Smith, Tyler McCarthy, and Jordan Stroud, who he believed to be the brother of Autumn Carter, as the individuals who had attempted the robbery on June 17. However, Stroud had become scared and did not enter the Credit Union. This same day, the cooperating source had a conversation with Smith, during which Smith admitted that he and McCarthy were responsible for the attempted robbery of the Fire/Police Credit Union on June 17. This conversation was recorded, and Detective Strayer advised in the Affidavit that he had listened to the recording, which corroborated the cooperating individual's statements.

         On July 1, the cooperating source relayed to Detective Strayer that Smith told the source that day that he was planning a bank robbery in Waterloo, Indiana. Additionally, McCarthy and others referred to as the “Ashley Crew” were planning to rob a bank within thirty miles of Fort Wayne, somewhere close to an interstate highway. Detective Strayer stated that a bank robbery had occurred in Ashley, Indiana, on June 15, 2015. The cooperating source asked Detective Strayer for a vehicle so he and Smith “could observe in Waterloo.” (Aff. 2.) Detective Strayer provided a vehicle to the cooperating source. The vehicle contained a tracking device.

         On July 2, law enforcement used the tracking device on the provided vehicle and visual surveillance to confirm that the cooperating source used the vehicle to meet up with Smith. They drove together to apartments at a Bridgeway Circle address in Fort Wayne. Smith entered the apartment and, when he returned to the vehicle, Smith and the cooperating source drove to Waterloo. They drove around an area close to the Farmer's State Bank, then returned to the Bridgeway Circle address. Smith, McCarthy, and the cooperating source then went to a McDonald's before returning to the same apartments. The cooperating source reported that Smith went inside the apartment the first time to give McCarthy a gun for a bank robbery planned for that day. He stated that, the second time, Smith entered the apartment and returned wearing different clothing, which visual surveillance confirmed. According to the source, Smith told him while they were at ...

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