                                                                       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       This order and judgment is not binding precedent, except under the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

                                        -2-
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

                                         -3-
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.

                                          -4-
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

                                         -5-
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

                                          -6-
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




                                         -7-
