715 F.3d 1110 (8th Cir. 2013), 12-2866, United States v. Smith

Docket Nº:12-2866.
Citation:715 F.3d 1110
Opinion Judge:MELLOY, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee v. Mario Darnell SMITH, Defendant-Appellant.
Attorney:Stephen Robert Welby, argued, Saint Louis, MO, for Appellant. John M. Bodenhausen, AUSA, argued, Saint Louis, MO, for Appellee.
Judge Panel:Before BYE and MELLOY, Circuit Judges, and KOPF,[1] District Judge.
Case Date:June 06, 2013
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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715 F.3d 1110 (8th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee


Mario Darnell SMITH, Defendant-Appellant.

No. 12-2866.

United States Court of Appeals, Eighth Circuit.

June 6, 2013

Submitted: Jan. 18, 2013.

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[Copyrighted Material Omitted]

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Stephen Robert Welby, argued, Saint Louis, MO, for Appellant.

John M. Bodenhausen, AUSA, argued, Saint Louis, MO, for Appellee.

Before BYE and MELLOY, Circuit Judges, and KOPF,1 District Judge.

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MELLOY, Circuit Judge.

Appellant Mario Darnell Smith entered a conditional guilty plea to one count of bank fraud in violation of 18 U.S.C. § 1344, three counts of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1), and one count of conspiracy in violation of 18 U.S.C. § 371. He now appeals the district court's 2 denial of his motion to suppress. For the following reasons, we affirm.


In May 2011, an individual posing as an AmerenUE employee started contacting U.S. Bank. The individual attempted to set up a " cash vault delivery" from an AmerenUE account at U.S. Bank. Cash vault delivery is a service that allows authorized customers to select locations for cash deliveries. The individual made all of his attempts either over the telephone or through e-mail, using fake e-mail accounts and Internet domain names in an attempt to impersonate an AmerenUE employee. AmerenUE and U.S. Bank employees learned of the scheme and notified the Federal Bureau of Investigation (FBI).

FBI Special Agent Brian Jackson was assigned to the case. He began his investigation by consulting with Special Agent Lyonel Myrthil, the bank crimes coordinator in the FBI's St. Louis office. Special Agent Myrthil informed Special Agent Jackson that he had heard of a similar scheme in Los Angeles that may have involved Mario Smith, who had since relocated to St. Louis.3 Smith was on supervised release in St. Louis for being a felon in possession of a firearm and had previously been convicted of fraud.

Special Agent Jackson learned that most of the e-mails sent as part of the present scheme were sent from free, publicly available wireless access points. One access point was traced to a house across the street from Smith's residence. The wireless router at the house across the street was unprotected and anyone within range could use that access point.

U.S. Bank provided Special Agent Jackson with the cash vault questionnaires that the individual behind the scheme completed to obtain the cash vault delivery. By analyzing the documents' data, Special Agent Jackson was able to learn that the username of the individual who completed the questionnaire was " bigdaddyallday." Special Agent Jackson conducted an Internet search for " bigdaddyallday" and discovered a YouTube account under that name. Smith was in several videos and photographs belonging to this account. Also, the investigation revealed that one of the cash vault delivery requests was made for pick-up in the Chicago area. On June 15, 2011, Smith requested permission from his probation officer to travel to Illinois.4

U.S. Bank also provided Special Agent Jackson with a recording of a phone conversation between a bank employee and the individual posing as an AmerenUE employee. Special Agent Myrthil identified the voice as Smith's. Special Agent Myrthil had listened to a televised interview with Smith and also had spoken with

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Smith and listened to Smith's voice on multiple other occasions.

After learning the above information, on June 20, 2011, the FBI placed Smith under surveillance. That morning, an individual authorities suspected was Smith called U.S. Bank, and while impersonating an AmerenUE employee, requested a cash vault delivery of approximately $180,000. During surveillance, agents observed Smith drive, along with Sahib Lewis, to Smith's residence and pick up a messenger bag. Smith and Lewis then drove to a Quizno's restaurant in downtown St. Louis. Agents entered Quizno's to arrest Smith, but he was in the restroom. Agents arrested Smith once he exited the restroom. Smith was uncooperative during arrest, refusing to place his hands in the view of the officers or sit down. The agents were aware that Smith had a history of resisting arrest.

Agents seized the messenger bag, which was roughly 15 to 20 feet away from Smith at a table with Lewis. While Smith was being handcuffed, he repeatedly told Lewis to take the bag. During Smith's arrest, Lewis was detained, but unrestrained, and could reach the bag. Special Agent Myrthil later stated he believed seizure of the bag was necessary for officer safety. Further, judging by the size and shape of the bag, agents believed the bag contained a laptop. The agents believed that a laptop had been used in furtherance of the scheme because of the use of wireless access points to connect to the Internet. Special Agent Myrthil seized the bag and immediately after touching the bag could feel a laptop inside. Agents did not know whether the bag contained any weapons. Agents also seized three cell phones that were on Smith at the time of arrest.

Agents then took the bag to the FBI office in St. Louis, where Detective Brian Mize inventoried the bag. Detective Mize discovered a laptop, a fourth cell phone, and bank records during the inventory. Agents then interviewed Smith after a valid Miranda waiver. Smith admitted to his involvement in the scheme.

Special Agent Jackson then placed the four cell phones and the laptop in a " Faraday" bag to prevent remote access so the phone could not be remotely wiped. Special Agent Jackson also placed the phones in " airplane mode" to preserve battery life. He created an inventory list, but the list did not detail which cell phones...

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