          United States Court of Appeals
                        For the First Circuit


Nos. 16-1357, 16-1702

                    UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                          JAMES PATTERSON,

                        Defendant, Appellant.


          APPEALS FROM THE UNTIED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                               Before

                Torruella, Thompson, and Barron,
                         Circuit Judges.


     Jonathan Shapiro, with      whom Mia Teitelbaum and Shapiro
Weissberg & Garin, LLP were on   brief, for appellant.
     Alexia R. De Vincentis,     Assistant United States Attorney,
with whom, William D. Weinreb,   Acting United States Attorney, was
on brief, for appellee.


                          December 13, 2017
           BARRON, Circuit Judge.          James Patterson appeals his

federal convictions, and resulting sentence, for five counts of

bank robbery in violation of 18 U.S.C. § 2113(a).            He argues that

his convictions must be vacated because the District Court erred

in denying his motions for (1) a hearing pursuant to Franks v.

Delaware, 438 U.S. 154 (1978), regarding warrants that were issued

to install Global Positioning System ("GPS") tracking devices; (2)

the suppression of evidence obtained from those GPS tracking

devices   installed    pursuant   to     those   warrants;    and    (3)   the

suppression of evidence obtained as the result of his arrest.              We

affirm.

                                    I.

           The following facts relevant to the issues on appeal are

not in dispute.   In the spring and summer of 2014, five banks in

the Boston area were robbed.      In each incident, witnesses reported

to law enforcement that the perpetrator covered his face, wore

dark sunglasses and plastic gloves, and made verbal demands for

cash.   By the fifth robbery, local law enforcement agents and the

Federal Bureau of Investigation ("FBI") were investigating the

string of robberies.

           At three of the robberies, surveillance cameras captured

images of a four-door vehicle that resembled a Volvo.               Following

the fifth robbery, police for the City of Peabody, Massachusetts,

received a report of the robber leaving the scene in an older


                                  - 2 -
model, four-door, green Volvo sedan with a Massachusetts license

plate.   In addition, the Peabody police received a call on the day

of the fifth robbery that reported suspicious activity occurring

about four miles from the scene of the fifth robbery and thirty to

forty minutes prior to that robbery.   The suspicious activity that

was reported involved a man wearing sunglasses, a hooded sweatshirt

with the hood up, and gloves, who got out of a "faded black Volvo"

and began walking toward a bank.   The caller reported having said

to the man that it was suspicious to enter a bank dressed that way

and that the man then returned to his car. The caller also reported

following the car and that the car had a Massachusetts license

plate with the number 353PY1 and that the plate was possibly tied

to the car with a piece of rope.

           Law enforcement officers ran this license plate number

through the Massachusetts Registry of Motor Vehicles database.

The check of the license plate indicated that it was registered to

a 1994 black Volvo.    On the basis of all of this information, a

detective for the police department of the Town of Stoughton,

Massachusetts, who was part of the investigation, applied for a

warrant from a magistrate in the Stoughton District Court in

Massachusetts to install a GPS tracking device on that black Volvo.

           The affidavit supporting the application stated, among

other things, that there had been a report of a "suspicious vehicle

observed in the area [of the fifth robbery] described as a black


                               - 3 -
Volvo, Massachusetts registration 353PY1."          The only report that

law enforcement had received concerning a black Volvo with that

license plate number, however, was the report that placed that

vehicle about four miles from the scene of the fifth robbery,

thirty   to    forty   minutes   before   that   robbery   occurred.   Law

enforcement had received a separate report of a Volvo being at the

scene of the fifth robbery.        But the person who made that report

had stated that the Volvo was green -- rather than black -- and

the person who made that report did not give that Volvo's license

plate number, although the report did identify that vehicle as

having a Massachusetts license plate.

              The magistrate granted the warrant to install the GPS

tracking device.       The next day, while conducting surveillance on

the 1994 black Volvo, police officers observed that the 353PY1

license plate had been removed from the vehicle and affixed to a

tan Acura at the same address where the black Volvo was parked.

The officers then sought and received a warrant to install a second

GPS tracking device, this time on the Acura.               The officers in

seeking this second warrant relied on an affidavit that, with

respect to the description of the reports regarding the vehicles

that had been observed on the day of the fifth robbery, was

identical to the one that had been used in applying for the first

GPS tracking device warrant.




                                   - 4 -
          Following the issuance of the two warrants and the

installation of the GPS tracking devices on both vehicles, law

enforcement surveilled both vehicles -- the black Volvo and the

Acura -- intermittently for the next thirteen days.     During the

surveillance, the cars were observed passing several banks in the

area, and slowing down in front of each bank as they passed.    In

addition, law enforcement reported that during their surveillance

of the vehicles, in several incidents, Patterson was seen as a

passenger, turning his head toward the bank as the vehicle he was

in at the time passed.

          On August 4, 2014, FBI agents watched one of these

vehicles -- with Patterson in it as a passenger -- again drive

slowly past a number of banks before finally pulling into a parking

lot near a bank.   The agents observed Patterson change clothes in

his vehicle and emerge dressed in dark pants, a dark sweatshirt,

a hat, sunglasses, and clear gloves. The agents then saw him begin

walking toward the nearby bank, before he turned and began walking

back toward the car.

          At that point, a Special Weapons and Tactics team from

the FBI arrested Patterson.   As Patterson raised his hands on the

command of the FBI agents, a black BB gun fell from Patterson's

person to the ground.    After being given a Miranda warning, see

Miranda v. Arizona, 384 U.S. 436, 444 (1966), Patterson made

statements to the police.


                               - 5 -
             On December 4, 2014, Patterson was indicted in the United

States District Court for the District of Massachusetts on five

counts of bank robbery in violation of 18 U.S.C. § 2113(a) and one

count   of   attempted    bank   robbery    in   violation   of   18   U.S.C.

§ 2113(a), all committed while on supervised release in violation

of 18 U.S.C. § 3147.      Prior to trial, Patterson filed a motion for

a Franks hearing to challenge the state court warrants for the

installation of GPS tracking devices on the black Volvo and the

Acura on the ground that the affidavits supporting each warrant

application contained an erroneous statement by relating that the

Volvo seen "in the area" of the fifth robbery was a black Volvo

that had the license plate number 353PY1.

             The District Court concluded that the "affidavit [was]

not a shining example of attention to detail" and contained an

"erroneous" statement, given that the only Volvo reportedly seen

at the site of the fifth bank robbery was green and was not

identified as having that license plate number and that the black

Volvo with that license plate was reportedly seen four miles away

and some thirty to forty minutes before the fifth robbery occurred.

Nevertheless,     the    District   Court    denied    the   motion     after

concluding that the erroneous statement was not made "knowingly or

in reckless disregard for the truth." The District Court explained

in reaching that conclusion that "there was simply no incentive"

for the officer to make the misstatement intentionally because, if


                                    - 6 -
the affidavit had correctly described the two separate reports,

then the magistrate "would still have had ample justification to

find probable cause."

           Patterson also filed motions to suppress the evidence

obtained through the GPS tracking devices and as a result of his

arrest.   Patterson contended that the evidence must be suppressed

because there was not probable cause to support either the issuance

of the GPS tracking device warrants or his arrest.           The District

Court denied these motions, too.

           The   District   Court   reasoned   that    the    information

contained in the affidavit supporting each warrant application

regarding the reports of multiple sightings of a "Volvo of similar

appearance" near some of the bank robberies and the witness's

report of the suspicious activity involving a black Volvo "only 30

or 40 minutes before, and less than four miles from" the fifth

robbery supported a finding of probable cause for issuance of the

warrants to install the GPS tracking devices.         The District Court

also concluded that there was probable cause to arrest Patterson

based on the observations by law enforcement officers of Patterson

"casing" banks and, before walking toward a bank, changing into

clothing that matched descriptions of the wardrobe worn by the

robber at each of the other banks that had been robbed.               The

District Court thus denied Patterson's suppression motions and the

case proceeded to trial.


                                - 7 -
           At trial, Patterson renewed his motions to suppress,

which the District Court again denied.         Following the jury's

verdict of guilty on all five counts of bank robbery,1 Patterson

was convicted and sentenced to 121 months of incarceration and

three years of supervised release on each count.       Because he was

on supervised release due to his sentence for a prior conviction

at the time that he committed the bank robberies, he was also found

to be in violation of the conditions of the terms of his release

and sentenced to an additional twenty-four months of imprisonment

to be served consecutively.

           Patterson now appeals the denial of his motion for a

Franks hearing and the denial of his two suppression motions. And,

on those grounds, he seeks to have his convictions and sentence

vacated.

                                  II.

           Patterson contends first that the District Court erred

in denying his motion for a Franks hearing.          In assessing the

denial of a motion for a Franks hearing, "we review factual

determinations     for   clear   error   and   the   probable   cause

determination de novo."    United States v. Arias, 848 F.3d 504, 511

(1st Cir. 2017).



     1 For reasons unrelated to this appeal, the District Court
granted Patterson's motion for acquittal on count six, attempted
bank robbery.


                                 - 8 -
           To establish the predicate for holding a Franks hearing,

the defendant must make two "substantial preliminary showing[s]."

Franks, 438 U.S. at 155. A defendant must first make a substantial

showing that "a false statement knowingly and intentionally, or

with reckless disregard for the truth, was included by the affiant

in the warrant affidavit."          Id. at 155–56.      With respect to this

initial showing, "[m]ere inaccuracies, even negligent ones, are

not enough to warrant a Franks hearing." United States v. Santana,

342 F.3d 60, 66 (1st Cir. 2003) (alteration in original) (internal

citation omitted).

           A defendant must also make a substantial showing that

the "allegedly false statement is necessary to the finding of

probable cause."     Franks, 438 U.S. at 156.          This inquiry considers

whether, "with the affidavit's false material set to one side, the

affidavit's   remaining       content    is   insufficient      to    establish

probable   cause."      Id.    at    156.     For,      if   what    remains     is

insufficient, then the warrant "must be voided and the fruits of

the search excluded to the same extent as if probable cause was

lacking on the face of the affidavit."           Id.

           In denying Patterson's motion for a Franks hearing, the

District   Court   ruled   that      Patterson    had    failed      to   make   a

substantial preliminary showing that the misstatement -- that a

black Volvo with the key license plate number was seen "in the

area" of the fifth robbery -- had been intentionally or recklessly


                                     - 9 -
made.       In so concluding, the District Court explained that, even

if   the     affidavit        had   correctly    described     what   happened,    a

magistrate would still have had "ample justification to find

probable cause."          The District Court thus concluded that there was

"simply no incentive" for the officer to have intentionally made

the misstatement in the affidavit, and thus that Patterson had

failed      to    make    a    substantial   preliminary       showing   that    the

misstatement        was    made     "knowingly   and   intentionally,     or    with

reckless disregard for the truth."               Id. at 155.

                 In light of this ruling below, the key issue on appeal

concerns whether Patterson made the requisite showing that the

misstatement was made intentionally rather than, as the District

Court concluded, merely out of carelessness.                    But, as to that

critical point, Patterson comes up short.

                 Patterson argues first that the misstatement must have

been made intentionally2 because the statement appears in the

affidavit twice.3          But, the mere fact that the record reveals the


        2
       Patterson makes no argument that the statement was made
recklessly.
        3
       The government responds that Patterson's Franks argument is
waived because his opening brief points to no specific evidence
that was used against him at trial that stemmed from the
installation of the GPS tracking devices.         Below, however,
Patterson argued that because his surveillance and arrest were
made possible by the GPS tracking, the fruits of his surveillance
and arrest should be suppressed. Given this argument below, we
assume, favorably for Patterson, that his argument on this point
is not waived.


                                        - 10 -
misstatement was repeated in the affidavit does not constitute a

substantial preliminary showing that the misstatement was made

intentionally.      If the officer made a negligent mistake once in

describing    the   vehicle   and   its   whereabouts   in   preparing   the

affidavit, then it would be unremarkable that he would have

repeated the mistake.     So the repetition of the error does little

to show that it was made intentionally rather than mistakenly.

             Patterson also points to the fact that the officer who

prepared the affidavit had access, at the time that he completed

the affidavit, to the two police reports that described the two

separate reports of the Volvos. And, Patterson notes, those police

reports did not themselves contain the misstatement that the

officer included in the affidavit.           Patterson thus contends that,

given that the misstatement was helpful to the government's case

for obtaining the warrant, he made a substantial preliminary

showing that the misstatement was intentionally made by pointing

to the fact that the officer in preparing the affidavit had before

him the correct information about the exact reported location of

the black Volvo with the license plate and yet included the

misstatement regarding that report nonetheless.

             But, as the District Court noted, even if the affidavit

had made clear that the Volvo with the license plate registered to

the black Volvo was not reported to be present at the scene of the

fifth robbery, there would still have been an "ample" basis for


                                    - 11 -
issuing the warrant.         After all, had the affidavit related the

facts regarding the Volvo's whereabouts precisely as they were set

forth in the police reports, the magistrate would still have been

informed that a Volvo with that license plate was reported "only

30 or 40 minutes earlier and less than four miles away" from the

scene of the fifth bank robbery.               And, given what the police

reports stated, the magistrate also would have been informed that

the   occupant   of   that    vehicle    with    those   plates    was   acting

suspiciously less than an hour before the fifth robbery and at the

relatively nearby bank, while that suspect was wearing clothing

that was at least similar to the clothing worn by the person

reportedly seen at the site of the fifth bank robbery.

           In addition, the magistrate would have been informed

that the description of this suspect was also quite similar to the

description of the suspect reportedly seen at a number of the other

robberies in the string.       Moreover, the magistrate would have been

informed that a car that was possibly a black Volvo of similar

model and year was seen at these earlier robberies, too.

           In light of these aspects of the record, it simply

requires too much speculation to infer from the mere fact that the

affidavit erroneously described the detailed police reports that

the affiant made the error intentionally rather than carelessly.

Accordingly, we conclude that the District Court did not err in

denying   Patterson's    motion    for     a    Franks   hearing    based   on


                                   - 12 -
Patterson's failure to make the requisite preliminary showing.

See United States v. Castillo, 287 F.3d 21, 26 (1st Cir. 2002).

                                  III.

            Patterson     separately   contends     that,     because   the

affidavit supporting the applications for the warrants to install

the GPS tracking devices failed to relate facts that could support

a finding of probable cause to suspect the black Volvo's or the

tan Acura's connection to the bank robberies, the District Court

erred in denying his motion to suppress the evidence obtained from

the installation of the GPS tracking devices.               But, we do not

agree.

            Our review is de novo, but "[i]n a doubtful or marginal

case, the court defers to the issuing magistrate's determination

of probable cause."       United States v. Barnard, 299 F.3d 90, 93

(1st Cir. 2002).   And here, the case for finding probable cause on

the basis of the affidavit supporting the warrant is hardly

marginal.   For while Patterson contends that there was "simply no

basis" to conclude from the affidavit that the black Volvo with

the license plate 353PY1 was "involved in any prior bank robbery,"

he rests this contention almost entirely on the fact that the

photographs taken by surveillance cameras at the scene of several

of the robberies captured images of a dark-colored sedan that could

have been a Volvo but did not identify the vehicle's license plate.

Patterson    overlooks,    however,    the   fact   that    the   affidavit


                                 - 13 -
described a number of facts to provide a reasonable basis for

connecting the black Volvo with the license plate 353PY1 --

reportedly seen "in the area" of the fifth robbery -- to not only

that robbery but others in the string.

             In particular, the affidavit reported that a review of

the surveillance video taken during the fourth robbery showed that

"[i]t appears that the getaway vehicle is a 4 door vehicle color

black, possibly a Volvo."          And the affidavit further explained

that a local Volvo dealer had been shown a photo of the vehicle

from this video and stated that it "could possibly be a 1991,[

]1992 or 1994 Volvo, model number 940 or 960."

             In addition, the affidavit explained that a witness

reported   the    suspect   at   this    fourth   robbery    to    be   a   "black

male . . .       wearing    a    white    jogging    suit,        described    as

approximately 5-11 to 6-0 [inches] tall, wearing a black baseball

style hat, dark sunglasses with a bandana covering his face and

clear plastic gloves . . . . "           And the affidavit then went on to

state that this description of the suspect of this fourth robbery

was similar to the description of the suspect at a third bank

robbery, as that suspect was described as a black male, wearing a

hat, dark sunglasses, clear plastic gloves, and covering his face.

             What is more, the affidavit stated that a still photo

taken from surveillance cameras near the bank involved in either

the first or second robbery in the string depicted "a four door


                                    - 14 -
vehicle, possibly a Volvo, color black."             And the affidavit stated

that the vehicle depicted in this photograph was identified by the

service manager at the local Volvo dealer as appearing to be a

"1994 or 1995 Volvo, model 940 or 960 GLE."

             The affidavit thus had related facts tying a black,

mid-1990s Volvo to at least three of the robberies that preceded

the fifth.        And the affidavit then explained that on the day of

the fifth robbery, "a witness reported seeing a suspicious male

wearing aviator type sunglasses, a hooded sweatshirt and gloves"

get out of a black Volvo and "act[] suspicious[ly] in the area of

[a] TD bank."       According to the affidavit, after the "suspicious

male" saw the witness, he left the area of the bank in the black

Volvo.      Shortly thereafter, the affidavit reported, another bank

in the area "was robbed by a male party [w]ith the same clothing

description previously seen at the TD bank . . . . " The affidavit

went   on    to   state   that   at   that   fifth   robbery,   "there   was   a

suspicious vehicle observed in the area described as a black Volvo,

Massachusetts registration 353PY1."            The affidavit thus facially

provided sufficient facts to link the black Volvo with license

plate 353PY1 with several of the robberies, including the fifth

one, notwithstanding that the affidavit did not report that this

vehicle was seen by any witness or depicted in surveillance

photographs as being at the scene of that robbery.




                                      - 15 -
           Nor was, as Patterson urges, the affidavit's statement

that the witness's report of the "suspicious male" seen with the

black Volvo on the day of the fifth robbery uncorroborated.               See

United    States   v.   Trinh,      665   F.3d   1,   10   (1st   Cir.   2011)

(articulating a "nonexhaustive list of factors" for determining

whether   information    in    an    affidavit   is   corroborated).      The

affidavit states that, before filing the warrant applications, law

enforcement officials were able to corroborate certain details of

the witness's report.         In particular, the affidavit states that

law enforcement ran the license plate of the black Volvo that the

witness had reported seeing through a database that showed that

the license plate was registered to a 1994 black Volvo and also

conducted physical surveillance that revealed that there was in

fact a black Volvo with that license plate.

           That leaves Patterson with only one remaining argument:

that there was no reference to a vehicle of any kind in the report

of the third robbery that the affidavit referenced.                 Patterson

argues that without evidence directly linking the Volvo with the

license plate 353PY1 to each robbery there was no probable cause

to issue the warrant.

           But we do not see why.          For there to be probable cause

to issue the warrant to install the GPS tracking device on the

black Volvo, the affidavit need not report that the vehicle had

been seen at each robbery, at least when there is a link between


                                     - 16 -
the various robberies that is independent of the vehicle itself --

here, the similarities between the descriptions of the robber.                  Of

course, Patterson does also contend that there is no such link, by

arguing that the reports discussed in the affidavit describing the

robber's height, weight, and wardrobe at each robbery varied too

greatly to support the inference that the same person committed

each.       But, based on the similarities in the reported description

of the suspect seen at these robberies that we have discussed

above, we disagree.

               We   thus    reject     Patterson's     contention       that    the

supporting      affidavit    did     not   provide   probable   cause    for    the

warrants for the installation of the GPS tracking devices.                     And,

accordingly, we affirm the denial of his motion to suppress any

evidence that may have been obtained in consequence of the issuance

of those warrants.4

                                           IV.

               We turn, finally, to Patterson's contention that the

District Court erred in denying his motion to suppress evidence


        4
        The government argues that Patterson's appeal of the
District Court's denial of his motion to suppress the evidence
obtained from the installation of the GPS tracking devices fails
because Patterson has not identified any evidence from the GPS
tracking devices that was used against him at trial, and thus any
error was harmless. Because we determined that the District Court
did not err in concluding that the warrant applications supported
a finding of probable cause, and thus the installation of the GPS
tracking devices was lawful, we need not, and do not, reach this
issue.


                                       - 17 -
obtained as a result of his arrest.           To effectuate a warrantless

arrest, law enforcement officers must, on the basis of "reasonably

trustworthy facts and circumstances, have information upon which

a reasonably prudent person would believe the suspect had committed

or was committing a crime."        United States v. Young, 105 F.3d 1,

6 (1st Cir. 1997).      Our review of the legal conclusion as to the

existence of probable cause to make the arrest is de novo.          United

States v. Capelton, 350 F.3d 231, 240 (1st Cir. 2003).

            Patterson argues that the probable cause standard was

not met here.     He contends that the FBI agents' belief that he had

been "casing" banks in the area was "speculati[ve]" and that the

fact that he had changed clothes and walked toward the bank before

turning around was insufficient to support a finding of probable

cause     for   attempted   bank   robbery.      He   contends   that   the

descriptions of the perpetrators in the string of prior robberies

varied too greatly to tie him to those robberies in a way that

would support a finding of probable cause to arrest him for those

crimes.    He further argues that he lacked the requisite intent to

commit a bank robbery necessary to prove the element of attempt

because the evidence did not show that he did more than "merely

think about" committing a robbery.      And, finally, he contends that

the evidence showed that he turned and walked away from the bank

just prior to being arrested, thereby further indicating that he

was not attempting to rob that bank.          As a result, he argues, the


                                   - 18 -
evidence of his BB gun, clothing, and statements made after his

arrest should be suppressed.

           The government points out in response that Patterson was

arrested   for   attempted   robbery   under   Massachusetts   law,   even

though he was ultimately charged with federal crimes.           And thus

the government contends that, because Patterson makes no argument

as to why the officers lacked probable cause to arrest him for

that state law crime, and instead argues only that there was not

probable cause to arrest him for the federal crimes for which he

was later charged, Patterson has waived the argument that there

was no probable cause to arrest him.

           But, even if we set aside the waiver argument -- which

Patterson does not address -- Patterson's challenge still fails.

The record shows that law enforcement had watched Patterson "case"

various banks in the area for nearly two weeks prior to his arrest,

had noted the similarities between Patterson's car and the car

seen at the previous robberies, and, just before the arrest, had

watched him change into clothes consistent with the type of

clothing worn by the robbers in the previous string of bank

robberies: sunglasses, gloves, and head and face coverings.           And

while the government does not dispute that Patterson turned around

while he was walking toward the bank just prior to being arrested

in the bank's parking lot, evidence of abandonment does not in and

of itself suffice to negate evidence of attempt. See United States


                                 - 19 -
v. Turner, 501 F.3d 59, 69 (1st Cir. 2007) ("[T]he fact that [the

defendant] may have detected the FBI's surveillance and tried to

abandon the attempt at the last moment is irrelevant."); see

generally United States v. Chapdelaine, 989 F.2d 28, 33 (1st Cir.

1993) (holding that "casing [a] bank, stealing a car, and arriving

armed at the bank constituted a substantial step toward robbery"

sufficient    for   a   conviction   for   attempted   robbery   (internal

citation omitted)).

             We thus agree with the District Court that Patterson's

arguments about the lack of evidence to support a finding of

probable cause "strain[] credulity."          Accordingly, the District

Court did not err in denying Patterson's motion to suppress

evidence obtained as a result of his arrest.

                                     V.

             For the foregoing reasons, the decision of the District

Court is affirmed.




                                 - 20 -
