United States v. Mario Smith

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, DUANE BENTON and BOBBY E. SHEPHERD. William Jay Riley, Authoring Judge (PUBLISHED) [3815199] [10-3454]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-3454
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United States of America,
Appellee,
v.
Mario Darnell Smith,
Appellant.

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*
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* Appeal from the United States
* District Court for the
* Eastern District of Missouri.
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*
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Submitted: April 12, 2011
Filed: August 5, 2011
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Before RILEY, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
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RILEY, Chief Judge.
Mario Darnell Smith conditionally pled guilty to being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). Smith reserved the right to appeal the
district court’s1 denial of his motions to suppress evidence seized from his vehicle.
Having jurisdiction under 28 U.S.C. § 1291, we affirm.

1

The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri, adopting the recommendation of the Honorable Frederick R.
Buckles, United States Magistrate Judge for the Eastern District of Missouri.

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I.

BACKGROUND
On April 10, 2009, at approximately 5:39 p.m., an unidentified masked man
jumped over the front counter at a U.S. Bank branch in St. Louis County, Missouri, and
demanded money from the tellers. Witnesses described the masked robber as a black
male wearing a red jacket and a white cap. As the robber fled on foot, he left a trail of
money leading to a nearby apartment complex.
During the investigation of the robbery, Detective Robert Vogel of the St. Louis
County Police Department obtained surveillance video from the apartment complex
that showed a man matching the description of the robber arriving at the apartment
complex in a burgundy Buick shortly before the robbery. A white Cadillac followed
the Buick into the lot and parked nearby. The man exited the driver’s side of the Buick
and got in the passenger side of the Cadillac. The Cadillac then drove toward the bank.
A few minutes later, after the robbery, a man in a red jacket and white cap
climbed a fence at the apartment complex and entered the Buick. As police cars drove
past the parked Buick, the suspect removed his jacket. Moments later, the suspect
exited the Buick wearing different clothing and entered the apartment complex.
With license plate information obtained from the surveillance video, Detective
Vogel located the registered owners of both vehicles. The registered owner of the
white Cadillac, a former girlfriend of Smith’s, told investigating officers that Smith
was the actual owner of the vehicle and that she did the paperwork for him. Licensing
records also showed Smith received several traffic tickets while driving the Cadillac.
The owner of the Buick, Sahid Lewis, advised officers that he saw a man named Mario
driving the white Cadillac in a White Castle parking lot across the street from the bank
immediately before the robbery. Lewis admitted he drove his Buick from White Castle
to the apartment complex the day of the robbery, but denied any involvement in the
crime.

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On April 12, 2009, Detective Vogel issued a wanted2 for the white Cadillac in
connection with the felony robbery investigation. The wanted described the white
Cadillac, including its license plate number, gave a general description of the suspect,
and requested law enforcement officers hold the vehicle for prints and field interview
any passengers. Detective Vogel also described the Cadillac and its connection to the
robbery to Officer Jason West of the Florissant Police Department (FPD) and asked
him to watch for the vehicle.
On April 14, 2009, Detective Vogel issued a wanted for Smith in connection
with the robbery investigation. The wanted for Smith included identifying information
and requested that officers “Hold 24 Per Det Vogel.” Detective Vogel testified he
could not locate Smith to talk to him and that issuing a wanted was a “helpful way to
find people.” Detective Vogel did not seek judicial authorization before issuing the
wanteds.
On April 15, 2009, at approximately 1:00 a.m., Officer Patrick O’Neill of the
FPD searched the license plate number of a light-colored Cadillac traveling southbound
on U.S. Highway 67. Officer O’Neill called for assistance after verifying the Cadillac
was wanted for possible involvement in an armed robbery. When the Cadillac turned
into a Taco Bell parking lot, Officer O’Neill, who was in a marked police vehicle,
activated his emergency lights and attempted to stop the Cadillac. Other officers
arrived shortly thereafter and also activated their lights.
When the Cadillac stopped, the officers exited their vehicles with weapons
drawn. Through the Cadillac’s open window, the officers told the driver (later
identified as Smith) to turn off the engine and throw the keys on the ground. Smith did
not comply. Smith stuck his head through the open window and said, “What do you
2

Detective Vogel described a “wanted” as an investigative tool that allows law
enforcement to gather information or evidence of a crime and locate people who might
have such information or evidence and possibly take them into custody.
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want?” Smith then opened the door and it appeared to Officer O’Neill that Smith was
about to step out. Instead, Smith closed the door, removed his foot from the brake and
slowly drove toward the back of the parking lot through the drive-through lane, which
the officers interpreted as an attempt to find an escape route.
Officer West, who was helping with the stop, drove his patrol car into the drivethrough lane, blocking the Cadillac’s only avenue of escape. Smith stopped the
Cadillac and exited the vehicle. The officers holstered their weapons and approached
Smith. Ignoring the officers’ instructions to show his hands and get down on his
knees, Smith moved toward the rear of the Cadillac. About the time Smith began to
run, Officer West deployed his taser without effect. Smith soon reached “full stride.”
As Smith fled the Taco Bell lot through a back gate into an open field, Officers
O’Neill, West and Easton chased him on foot. Officer West broke off his chase and
returned to the Taco Bell to secure the patrol cars and the Cadillac. Officer West
turned the Cadillac off in case Smith returned, but did not close the open car door.
After a foot chase through a residential neighborhood, Officers O’Neill and
Easton caught up to Smith and ordered him to stop. When Officer O’Neill attempted
to restrain Smith, Smith fought the officers and tried to bite Officer O’Neill’s hand.
Despite Smith’s resistence, the officers eventually handcuffed him and placed him in
a patrol car. The officers arrested Smith for assaulting a law enforcement officer and
resisting arrest.
Searching Smith incident to the arrest, officers discovered a Missouri driver’s
license for “Mario Smith” and $4,298.56 in cash. Officer West notified Detective
Vogel the officers had located the wanted Cadillac. Detective Vogel and a crime-scene
detective responded and searched the Cadillac for evidence of the armed robbery. The
search yielded $72,900 in cash and a Glock model 20, 10mm handgun.

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On April 16, 2009, a grand jury charged Smith with being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). Smith moved to suppress the
evidence obtained from his arrest and the search of the Cadillac. The magistrate judge
conducted two suppression hearings, issuing a report and recommendation after each
hearing. The magistrate judge recommended denying Smith’s motions to suppress
because (1) the officers’ initial stop and detention of Smith was a “lawful investigatory
detention” under Terry v. Ohio, 392 U.S. 1 (1968), (2) the information known to the
officers provided probable cause for Smith’s arrest, and (3) Smith abandoned the
Cadillac when he fled the scene. After de novo review, the district court adopted the
magistrate judge’s recommendation and denied Smith’s motions to suppress.
On August 13, 2010, Smith conditionally pled guilty to the felon-in-possession
charge, reserving the right to appeal the denial of his motions to suppress. On appeal,
Smith argues (1) “the district court erred in finding the stop and seizure of the white
Cadillac was a justifiable Terry stop,” (2) “Smith was under de facto arrest, without
probable cause, from the moment of his first interaction with law enforcement,” and
(3) the abandonment exception did not justify the search of the Cadillac.
II.

DISCUSSION
A.
Standard of Review
In reviewing a denial of a motion to suppress, we review the district court’s
findings of fact for clear error, “giving due weight to the inferences police drew from
those facts.” United States v. Newell, 596 F.3d 876, 879 (8th Cir. 2010) (quoting
United States v. Ramires, 307 F.3d 713, 716 (8th Cir. 2002) (internal quotation marks
omitted)). We “review[] de novo the district court’s legal conclusion that reasonable
suspicion or probable cause existed.” Id. “We will affirm the denial of a suppression
motion unless we find that the decision is unsupported by the evidence, based on an
erroneous view of the law, or the Court is left with a firm conviction that a mistake has
been made.” Id. (quoting United States v. Donnelly, 475 F.3d 946, 951 (8th Cir. 2007)
(internal quotation marks omitted)). We review the district court’s factual finding that
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Smith abandoned the Cadillac for clear error and the district court’s legal conclusion
of abandonment de novo. See, e.g., United States v. James, 534 F.3d 868, 873 (8th Cir.
2008).
B.
Reasonable Suspicion and Probable Cause
Smith contends the district court erred in denying his motions to suppress
because the “actions of police officers before, during and after the initial seizure, and
the testimony of police officers during the suppression hearings demonstrate that the
seizure of his vehicle was an illegal, pre-planned, warrantless seizure and subsequent
search, and Mr. Smith was under de facto arrest from the moment of his initial seizure
by law enforcement.” According to Smith, “[t]he means and scope of this detention
was unreasonable in the absence of a probable cause and exigent circumstances, or a
warrant.” We disagree.
“The Fourth Amendment permits an investigative stop of a vehicle if officers
have a reasonable suspicion the vehicle or its occupants are involved in criminal
activity.” United States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007). In such a case,
“officer[s] may briefly stop an individual and make reasonable inquiries aimed at
confirming or dispelling the suspicion.” United States v. Hughes, 517 F.3d 1013, 1016
(8th Cir. 2008).
“Reasonable suspicion requires ‘that the [officers’] suspicion be based upon
particularized, objective facts which, taken together with rational inferences from those
facts, reasonably warrant suspicion that a crime [has been] committed.’” United States
v. Lopez-Mendoza, 601 F.3d 861, 865 (8th Cir. 2010) (quoting United States v. Jones,
269 F.3d 919, 927 (8th Cir. 2001)). We determine whether such facts and inferences
support a reasonable suspicion of criminal activity based on “the totality of the
circumstances.” Bell, 480 F.3d at 863 (quoting United States v. Maltais, 403 F.3d 550,
554 (8th Cir. 2005) (internal quotation marks omitted)).

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Police officers may rely upon notice from another police department that a
person or vehicle is wanted in connection with the investigation of a felony “when
making a Terry stop, even if the [notice] omits the specific articulable facts supporting
reasonable suspicion.” United States v. Jacobsen, 391 F.3d 904, 906 (8th Cir. 2004)
(citing United States v. Hensley, 469 U.S. 221, 232 (1985)). “[I]f a flyer or bulletin
has been issued on the basis of articulable facts supporting a reasonable suspicion that
the wanted person has committed an offense, then reliance on that flyer or bulletin
justifies a stop to check identification, to pose questions to the person, or to detain the
person briefly while attempting to obtain further information.” Hensley, 469 U.S. at
232 (internal citations omitted).
“A Terry stop may become an arrest, requiring probable cause, ‘if the stop lasts
for an unreasonably long time or if officers use unreasonable force.’” Newell, 596
F.3d at 879 (quoting United States v. Navarrete-Barron, 192 F.3d 786, 790 (8th Cir.
1999)). “[A]s part of a lawful Terry stop, officers may take any measures that are
‘reasonably necessary to protect their personal safety and to maintain the status quo
during the course of the stop.’” Id. (quoting Hensley, 469 U.S. at 235). “[W]hen
officers are presented with serious danger in the course of carrying out an investigative
detention, they may brandish weapons or even constrain the suspect with handcuffs in
order to control the scene and protect their safety.” United States v. Fisher, 364 F.3d
970, 973 (8th Cir. 2004). See United States v. Danielson, 728 F.2d 1143, 1146-47 (8th
Cir. 1984) (concluding investigatory detention did not become an arrest when the
officers drew their weapons before approaching the vehicle occupied by suspected
armed bank robbers).
Applying these principles to this appeal, we agree with the district court that
under the totality of the circumstances, the officers’ reasonable suspicion of a
connection between Smith and his Cadillac and the bank robbery warranted an
investigatory detention. The reasonable safety measures officers took in effecting an
inherently dangerous investigative stop in connection with an armed robbery did not
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transform the encounter with Smith into an arrest. Detective Vogel’s investigation
indicated Smith was the owner and primary user of the white Cadillac seen on the
surveillance video picking up a man matching the description of the bank robber and
driving toward the bank moments before the robbery. A witness placed Smith behind
the wheel of the Cadillac a few blocks away from the bank shortly before the robbery
occurred.
Those particularized, objective facts and the inferences rationally drawn from
them justified Officer O’Neill stopping the Cadillac and detaining Smith to determine
if the Cadillac or Smith were involved in the bank robbery or could provide
information helpful to the investigation. Because the officers were investigating an
armed robbery, it was reasonable for them to approach the Cadillac with weapons
drawn and to ask Smith to exit the vehicle. Smith escalated the encounter by refusing
to comply with the officers’ instructions and then fleeing. Smith’s flight and resulting
fight with the officers, combined with the information supporting the stop, gave
officers probable cause to arrest Smith.3 Because Smith’s detention and arrest were
valid under the Fourth Amendment, the district court did not err in denying Smith’s
motions to suppress.
C.
Abandonment
We also reject Smith’s assertion the district court clearly erred in finding Smith
abandoned the Cadillac in the Taco Bell drive-through lane when he fled on foot. “A

3

Although the government suggests “the investigating officers not only had
reasonable suspicion to support the Terry stop, but also had probable cause to effect
the arrest” at the time Officer O’Neill stopped the Cadillac, the government concedes
the issue is moot because “the district court found the stop justifiable under Terry and
Smith’s actions subsequent to the stop provided abundant probable cause for his
arrest.” In addition, beyond abandonment, the government does not raise, and we do
not consider, whether any other exception to the warrant requirement applies to the
search of the Cadillac.
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warrantless search of abandoned property does not implicate the Fourth Amendment,
[because] any expectation of privacy in the item searched is forfeited upon its
abandonment.” James, 534 F.3d at 873 (quoting United States v. Tugwell, 125 F.3d
600, 602 (8th Cir. 1997)). “The issue is not abandonment in the strict property right
sense, but rather, whether the defendant in leaving the property has relinquished [his]
reasonable expectation of privacy so that the search and seizure is valid.” United
States v. Hoey, 983 F.2d 890, 892-93 (8th Cir. 1993).
In a factually similar case, we held the warrantless search of a suspected bank
robber’s vehicle, left parked on a public street, unlocked, with the windows down as
the robber fled the police, did not violate any Fourth Amendment right of the suspected
bank robber. See United States v. Walton, 538 F.2d 1348, 1351, 1354 (8th Cir. 1976).
See also United States v. Vasquez, 635 F.3d 889, 892, 894 (7th Cir. 2011) (concluding
defendant had no expectation of privacy in his vehicle after fleeing from police and
abandoning the vehicle in a Wal-Mart parking lot before continuing his flight on foot);
United States v. Edwards, 441 F.2d 749, 751 (5th Cir. 1971) (“Defendant’s right to
Fourth Amendment protection came to an end when he abandoned his car to the police,
on a public highway, with engine running, keys in the ignition, lights on, and fled on
foot. At that point defendant could have no reasonable expectation of privacy with
respect to his automobile.”).
Relying on Walton and similar cases, the district court determined Smith
abandoned the Cadillac “when he left the car open, with the keys in the ignition, the
motor running, in a public area” and then ran from the police. Based on the totality of
the circumstances, the district court did not err in concluding Smith relinquished any
legitimate expectation of privacy he might have had in the Cadillac and its contents.
As such, the district court properly denied Smith’s motions to suppress.
III.

CONCLUSION
We affirm.
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