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

• Court: Indiana Court of Appeals
• Decided: October 20, 2020
• Docket: 19A-CR-2581
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2581 | October 20, 2020 Page 1 of 10 [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

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2581 | October 20, 2020 Page 2 of 10 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

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2581 | October 20, 2020 Page 3 of 10 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

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2581 | October 20, 2020 Page 4 of 10 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.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2581 | October 20, 2020 Page 5 of 10 [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 Court of Appeals of Indiana | Memorandum Decision 19A-CR-2581 | October 20, 2020 Page 6 of 10 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.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2581 | October 20, 2020 Page 7 of 10 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

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2581 | October 20, 2020 Page 8 of 10 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 Court of Appeals of Indiana | Memorandum Decision 19A-CR-2581 | October 20, 2020 Page 9 of 10 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. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2581 | October 20, 2020 Page 10 of 10