Darrin Banks v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 20 2020, 8:24 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Cutis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
George P. Sherman
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darrin Banks, October 20, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2581
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner
Appellee-Plaintiff. Trial Court Cause No.
49G06-1804-MR-12372
Brown, Judge.
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[1] Darrin Banks appeals his convictions for murder and battery as a level 5 felony.
He raises one issue which we restate as whether the trial court abused its
discretion by admitting a firearm and a phone seized pursuant to a search
warrant. We affirm.
Facts and Procedural History
[2] On March 28, 2019, an argument occurred between Jasmine Webster, her sister
Jada, and Daleah Banks. Jasmine and Jada planned to fight, and around
midnight, they arrived at a location with their entourages. Renee Robson
arrived with Jasmine, and Jasmine and Jada began fighting. At some point,
Robson sprayed mace. The fight eventually involved other men and women.
Eric Davis fired gunshots, the fight ended, and Robson returned home with
others.
[3] At approximately 1:44 a.m. on March 29, 2018, Indianapolis Metropolitan
Police Officer Donald Meier was dispatched to a call of shots fired, arrived at
Robson’s residence, and observed several bullet holes in the exterior of the
home. Ana Fox and Robson’s one-year-old child, M.R., suffered gunshot
wounds, and M.R. died as a result.
[4] That same day, William Pargo called homicide, asked for the detective on the
case, and said he had information about “the baby case.” Transcript Volume II
at 104. Pargo told Indianapolis Metropolitan Police Detective Jeremy Ingram
that Banks and Brian Palmer were the shooters. Law enforcement obtained
surveillance video which captured the shooting from a residence across the
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street. Detective Ingram obtained a warrant for Banks’s cell phone records and
for a GPS device for Banks’s vehicle. Pargo informed Detective Ingram that he
would let him know when both suspects were in a vehicle with both weapons.
[5] On April 10, 2018, law enforcement pulled over Banks and Palmer in a brown
Chevy Caprice after they failed to stop at a stop sign. Officers observed an AR
pistol in plain view where Pargo said it would be located. On that date,
Detective Ingram submitted an affidavit in support of a search warrant which
referenced the March 29, 2018 shooting and the ongoing family dispute and
asserted a confidential source stated he was close to both families involved in
the original disturbance. Detective Ingram asserted the source stated that he
was familiar with Banks and that Banks told him he shot at the house and
showed him the gun. Detective Ingram also stated the source was credible and
his information had resulted in multiple arrests and convictions with the
seizures of narcotics and firearms. He asserted the source was able to record
Banks making statements related to the shooting. He also stated that he knew
Palmer drove a 1989 Chevy Caprice, law enforcement followed Palmer’s
vehicle and observed Banks enter the vehicle, and the source advised that Banks
had his rifle that was used in the shooting in the vehicle. He asserted that law
enforcement stopped the vehicle after a traffic violation and observed a rifle in
the front seat in plain view. He requested a warrant to search Palmer’s vehicle.
[6] That same day, the court issued a search warrant. A crime scene specialist
recovered a cell phone, an Anderson pistol wedged between the driver and
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passenger seats, and a rifle in the trunk. Banks signed a form advising him of
his rights and admitted that he and Palmer had fired shots at the house.
[7] On April 17, 2018, the State charged Banks with murder as a class A felony and
battery by means of a deadly weapon as a level 5 felony. On June 7, 2019,
Banks filed a motion to suppress alleging that the search warrants were issued
in violation of the Fourth Amendment of the United States Constitution and
Article 1, Section 11 of the Indiana Constitution.
[8] On July 11, 2019, the court held a hearing on the motion to suppress. Banks’s
counsel argued that Pargo never worked with Detective Ingram and, even if he
did, it had been fourteen years earlier, Pargo had amassed eight criminal
convictions for dishonesty, and Pargo was hoping to receive a benefit for his
friend Willy Farrell. The court stated that, even if it found an omission existed,
it would not be material or affect the probable cause.
[9] Detective Ingram testified that he worked with Pargo in 2003 and maybe 2004,
Pargo had introduced him to drug traffickers and given him information on
other cases, and he trusted Pargo. He stated that Pargo told him about his
conversation with Banks concerning the shooting. He also stated Pargo took
him by Palmer’s house and identified the vehicles of Banks and Palmer, which
he confirmed were registered to them. Detective Ingram testified that he
conducted research and discovered Pargo and Banks were co-defendants in a
case and hung out together. He testified that Pargo told him there were two
people involved in the shooting and that a doorbell with a security camera
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captured the shooting and showed there were two shooters. He also stated
Pargo provided a recording of his conversation with Banks in which they
discussed the shooting and further corroborated the information Pargo had told
him. On cross-examination, he testified that he indicated to Pargo that his
cooperation might help his friend, Farrell. He testified that he assisted Pargo to
obtain a benefit for Farrell in a federal indictment and that Pargo had a pending
case, which was dismissed on April 2nd as a result of his cooperation.
[10] At the beginning of a hearing on August 13, 2019, the court stated the motion
to suppress was still under advisement. On August 15, 2019, the court
continued the hearing and stated it did not believe that the record had shown a
false statement and that Detective Ingram corroborated Pargo’s story. The
court stated the fact that Pargo asked for consideration was a material omission
but that it did not believe the omission would have impacted the grant of the
search warrant.
[11] On August 16, 2019, Banks filed a motion to suppress his statements. On
September 23 and 24, 2019, the court conducted a bench trial. At the beginning
of the trial, Banks’s counsel mentioned the motion to suppress Banks’s
statement, and the court indicated it would continually take it under
advisement. Banks’s counsel renewed the motion to suppress based upon the
stop and the belief that Pargo was not credible, and the court denied the
motion.
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[12] The State presented the testimony of Robson, Fox, Detective Ingram, and other
law enforcement officers. The State introduced and the court admitted Banks’s
statement to police. Indianapolis Metropolitan Police Detective Grant Melton
testified that the phone recovered from the vehicle contained internet search
history involving news stories of the incident in the hours after the shooting and
a search involving the removal of fingerprints. A forensic scientist indicated
that the nineteen recovered shell casings were fired by the Anderson pistol
found between the seats of the vehicle. The court found Banks guilty as
charged and sentenced him to consecutive sentences of fifty years for murder
and three years for battery.
Discussion
[13] Although Banks originally challenged the admission of the evidence through a
motion to suppress, he now challenges the admission of the evidence at trial.
Thus, the issue is appropriately framed as whether the trial court abused its
discretion by admitting the evidence. See Jefferson v. State, 891 N.E.2d 77, 80
(Ind. Ct. App. 2008), trans. denied.
[14] We review the trial court’s ruling on the admission or exclusion of evidence for
an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g
denied. We reverse only where the decision is clearly against the logic and effect
of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997),
reh’g denied. In reviewing the trial court’s ruling on the admissibility of evidence
from an allegedly illegal search, an appellate court does not reweigh the
evidence but defers to the trial court’s factual determinations unless clearly
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erroneous, views conflicting evidence most favorably to the ruling, and
considers afresh any legal question of the constitutionality of a search or
seizure. Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009). “[T]he ultimate
determination of the constitutionality of a search or seizure is a question of law
that we consider de novo.” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
[15] In ruling on admissibility following the denial of a motion to suppress, the trial
court considers the foundational evidence presented at trial. Id. If the
foundational evidence at trial is not the same as that presented at the
suppression hearing, the trial court must make its decision based upon trial
evidence and may consider hearing evidence only if it does not conflict with
trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014).
[16] Banks argues that the trial court abused its discretion by admitting the pistol
and phone seized pursuant to a search warrant prepared with a reckless
disregard for the truth by omitting material information essential to a finding of
probable cause to bolster the credibility of the informant. He asserts that
Detective Ingram omitted the following information: the remoteness of his
relationship with Pargo, Pargo’s criminal history, his aliases, his pending case,
his parole status, and his request for consideration. 1 The State argues that
Banks has not established that the detective engaged in a deliberate falsehood or
1
In his motion to suppress, Banks mentioned Article 1, Section 11 of the Indiana Constitution. In his brief on
appeal, he does not mention Article 1, Section 11 or provide an independent analysis of the Indiana
Constitution.
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reckless disregard for the truth by omitting information from the affidavit and
that Banks has not shown that any such information would have changed the
probable cause calculus.
[17] The Fourth Amendment to the United States Constitution provides:
The right of people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.
U.S. CONST. amend. IV. “Though a ‘fluid concept,’ probable cause exists
when the affidavit establishes ‘a fair probability that contraband or evidence of
a crime will be found in a particular place.’” Heuring v. State, 140 N.E.3d 270,
273 (Ind. 2020) (quoting Illinois v. Gates, 462 U.S. 213, 232, 238, 103 S. Ct. 2317
(1983)). “Probable cause to issue a search warrant exists where the facts and
circumstances would lead a reasonably prudent person to believe that a search
would uncover evidence of a crime.” Meister v. State, 933 N.E.2d 875, 879 (Ind.
2010).
In Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 57
L. Ed. 2d 667 (1978), the U.S. Supreme Court held that a warrant
is invalid where the defendant can show by a preponderance of
the evidence that the affidavits used to obtain the warrant contain
perjury by the affiant, or a reckless disregard for the truth by him,
and the rest of the affidavit does not contain materials sufficient
to constitute probable cause. See Id. at 171-72, 98 S. Ct. 2674.
Furthermore, fruits of the search will be excluded just as if the
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affidavit did not contain allegations sufficient to constitute
probable cause. Id., at 155, 98 S. Ct. 2674.
Jones v. State, 783 N.E.2d 1132, 1136 (Ind. 2003).
[18] “[M]istakes and inaccuracies of fact stated in a search or arrest affidavit will not
vitiate the reliability of the affidavits so long as such mistakes were innocently
made.” Darring v. State, 101 N.E.3d 263, 268 (Ind. Ct. App. 2018) (quoting
Utley v. State, 589 N.E.2d 232, 236-237 (Ind. 1992), cert. denied, 506 U.S. 1058
(1993)). “In addition to the inclusion of false or misleading testimony in the
affidavit, the defendant may also establish that the affiant omitted information
‘essential to a finding of probable cause.’” Id. (quoting Keeylen v. State, 14
N.E.3d 865, 872 (Ind. Ct. App. 2014), clarified on reh’g, 21 N.E.3d 840 (Ind. Ct.
App. 2014), trans. denied). “In the case of an alleged omission, the defendant
must establish that the affiant engaged in deliberate falsehood or reckless
disregard for the truth in omitting the information and show that probable cause
would no longer exist if such omitted information were considered by the
issuing judge.” Id. “Franks protects only against omissions that are ‘designed to
mislead, or that are made in reckless disregard of whether they would
mislead.’” Id. (quoting Keeylen, 14 N.E.3d at 872).
[19] The record reveals that Detective Ingram’s search warrant affidavit asserted that
the confidential source, who was later identified as Pargo, was “credible and
reliable to this affiant which has included multiple arrests and convictions with
the seizures of narcotics and firearms.” Defendant’s Exhibit C. Detective
Ingram’s affidavit further asserted that Pargo was able to record Banks making
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statements and alleged that the firearm used in the shooting was in the vehicle,
and the officers saw a firearm in the front seat of the vehicle after the stop.
Detective Ingram testified that Pargo provided a recording of Banks in which he
talked about the shooting. When asked whether Pargo had lied to law
enforcement in his time working with him, Detective Ingram answered in the
negative. We also note that the trial court stated:
So the fact that the CS has information or has access to people
committing criminal offenses or a criminal history themselves is
hardly a surprise to the Court, and if I found it to be an omission,
I still would not find it to be a material omission given the
content of the rest of the information contained therein.
Transcript Volume II at 46.
[20] Based upon our review of the record, we cannot say that Detective Ingram
engaged in a deliberate falsehood or reckless disregard for the truth in omitting
the information or that probable cause would no longer exist if such omitted
information were considered by the issuing judge. The admission of the
evidence found during the search pursuant to the search warrant did not violate
Banks’s Fourth Amendment rights. See Darring, 101 N.E.3d at 270 (holding
that, even if all of the “omitted evidence had been included in the affidavit,
probable cause for the issuance of the search warrant would still exist”).
[21] For the foregoing reasons, we affirm Banks’s convictions.
[22] Affirmed.
Robb, J., and Crone, J., concur.
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