United States District Court, W.D. Missouri, Western Division
REPORT AND RECOMMENDATION
SARAH W. HAYS, Magistrate Judge.
This matter is currently before the Court on defendant Smith's Motion to Suppress Any Items Taken During de Facto Arrest May 19, 2013 as No Arrest Warrant Produced or Given to Proper Party; and Motion to Suppress Any Alleged Statements Made, Made to or By Any Alleged Isle of Capri Security Personnel Prior to Any Presumed Miranda Warning to Alleged Defendant (doc #24). For the reasons set forth below, it is recommended that this motion be denied.
On April 2, 1997, defendant James T. Smith was sentenced in the Western District of Wisconsin for the offense of Bank Robbery by Force or Violence. The sentence imposed was 210 months in custody followed by 36 months of supervised release. Defendant's term of supervised release began on April 23, 2012 and was to expire on April 22, 2015. On March 12, 2013, jurisdiction of the supervised release case was transferred from the Western District of Wisconsin to the Western District of Missouri. This case, 13-00061-01-CR-W-DW, was assigned to the Honorable Dean Whipple.
On May 20, 2013, a Violation Report was filed in Case No. 13-00061. The Violation Report stated that on May 19, 2013, troopers with the Missouri State Highway Patrol were notified that defendant Smith attempted to rob the Isle of Capri Casino. A mandatory condition of defendant Smith's supervised release was that "[t]he defendant shall not commit another federal, state or local crime." A warrant for the arrest of supervised releasee was issued for defendant Smith. Defendant Smith first appeared in the supervised release case (Case No. 13-00061) before United States Magistrate Judge Robert E. Larsen on May 21, 2013.
On April 29, 2014, a two-count Indictment in the instant case was filed. Count One of the Indictment charges that on May 18, 2013, defendant Smith committed bank robbery, taking money in the amount of $1, 053.00 from a teller at Commerce Bank, 118 West 47th Street, Kansas City, Missouri. Count Two charges that on May 19, 2013, defendant Smith attempted to rob the Isle of Capri Casino.
On August 13, 2014, an evidentiary hearing was held on defendant's motion to suppress. Defendant Smith appeared pro se with Assistant Federal Public Defenders William J. Raymond and Carie Allen appearing as stand-by counsel. The Government was represented by Assistant United States Attorney Christina Y. Tabor. The Government called Marty Humbert, a security guard from the Isle of Capri Casino, Kyle Leroy, the security shift manager at the Isle of Capri Casino, Sergeant Brian Vernon, a Missouri State Trooper, and Sergeant James Schulte and Officer Doaa El-Ashkar of the Kansas City, Missouri Police Department as witnesses. The defense called no witnesses to testify.
II. FINDINGS OF FACT
On the basis of the evidence adduced at the evidentiary hearing, the undersigned submits the following proposed findings of fact:
1. On Sunday, May 19, 2013, Marty Humbert was working as a security guard at the Isle of Capri Casino. (Tr. at 3) Mr. Humbert was wearing a uniform with a badge on the shirt. (Tr. at 3) Mr. Humbert was not armed with a firearm and he was not provided with handcuffs. (Tr. at 4)
2. At approximately 12:13 a.m., Mr. Humbert was patrolling the parking lot of the casino when he received a radio dispatch regarding a patron. (Tr. at 3-4) Mr. Humbert was provided a description of the patron and told that if he saw him, he was to ask the patron if he would please wait for a supervisor to come out and speak with him. (Tr. at 4) Mr. Humbert knew that the security supervisor, Kyle Leroy, wanted to speak with the patron, but Humbert did not know what Leroy wanted to speak to the patron about. (Tr. at 5)
3. Mr. Humbert saw a person matching the physical description of the person the security supervisor wanted to speak with leaving the casino outside the doors of the welcome deck area. (Tr. at 5) The patron was later identified as James T. Smith. (Tr. at 5) Mr. Humbert got out of his car and asked the patron if he could wait for Humbert's supervisor to speak with him. (Tr. at 6) The patron asked Mr. Humbert why the supervisor wanted to speak with him. (Tr. at 6) Mr. Humbert replied that he did not know why. (Tr. at 6) Mr. Humbert radioed his supervisor to let him know that the patron was outside with him. (Tr. at 7) The patron (defendant Smith) stood in the parking lot and visited with Mr. Humbert until Mr. Leroy came out. (Tr. at 6) Mr. Humbert described defendant Smith as cooperative. (Tr. at 6) Mr. Humbert testified that he did not raise his voice, use any force or threaten defendant Smith in any way to gain his cooperation. (Tr. at 6-7) Mr. Leroy joined Mr. Humbert and defendant Smith in the parking lot. (Tr. at 7)
4. Mr. Leroy testified that he had received information that a patron presented a note to a cashier at the main cage requesting money and that the patron was then leaving the casino. (Tr. at 12) Mr. Leroy testified that surveillance video recordings captured the patron's activities at the main cashier cage and as the patron left the casino and as he walked into the parking lot. (Tr. at 12)
5. Mr. Leroy talked with defendant Smith in the parking lot. (Tr. at 12) Mr. Leroy asked defendant Smith if they had had some trouble getting him some money at the main cage. (Tr. at 12) Defendant Smith told Mr. Leroy that he had not gone to the main cage and that he did not understand why Leroy was asking him this quesion. (Tr. at 12-13) Mr. Leroy asked defendant Smith to wait a moment while he contacted surveillance to make sure that he was speaking with the correct patron. (Tr. at 13) Surveillance advised that they were certain that Mr. Leroy was talking to the right individual. (Tr. at 13) Mr. Leroy testified that he was dressed in a suit jacket, polo and black pants and that he did not carry a weapon. (Tr. at 13-14) Mr. Leroy explained that he is security for the casino, not a law enforcement officer. (Tr. at 24) Mr. Leroy further testified that he did not threaten defendant Smith or use force of any kind against Smith while he was talking to him. (Tr. at 13)
6. Mr. Leroy testified that he interviewed the victim cashier that day. (Tr. at 14) The cashier reported that an individual had approached the main cage and presented her with a note requesting the money in her drawer. (Tr. at 14) The individual stated that he had nitroglycerin and would blow the place up. (Tr. at 14) The cashier had closed her drawer and contacted security without turning over any money to the patron. (Tr. at 25) The surveillance department reviewed the video of defendant Smith's exit from the casino and noted that Smith had possibly dropped the demand note over the railing next to the escalator he had come up. (Tr. at 14) A note was found in a trash can after being swept into a dustpan and dumped into the trash can. (Tr. at 15) The note read:
I AM HERE TO COLLECT A DEBT. DO NOT MAKE A SCENE. EMPTY YOUR DRAWER LARGE BILLS, THANK YOU
(Government's Ex. 9) Mr. Leroy testified that this demand note was consistent with what the cashier reported to him. (Tr. at 16) Further, based on the surveillance video, Mr. Leroy determined that this demand note (Government's Ex. 9) was the note presented to the cashier. (Tr. at 20-21) A second note was found in the same trash can as the first note. (Tr. at 17) The second note read:
I AM HERE TO COLLECT A DEBT EMPTY YOUR DRAWER LARGE BILLS, THIS ISNOTHING PERSONAL STRICTLY BUSINESS $25, 000, 00 ...