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[T IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN THE PEOPLE OF THE VIRGIN ISLANDS CASE NO. ST-10-CR-0000301 Plaintiff ) ) ACTION FOR: 14 V.I.C. 2253(A) Vs. ) ) AHMO! LEWIS ) Defendant ) NOTICE OF ENTRY OF MEMORANDUM OPINION & ORDER KERRY E. DRUE, ESQ. TO: EDWARD VERONDA, ESQ., ASST. ATTY. GENERAL JUDGES & MAGI TES OF THE SUPERIOR COURT CLERK OF THE COURT LAW LIBRARY, oy Please take notice that on July 06, 2011 a(n) MEMORANDUM OPINION & ORDER dated July 05, 2011 was entered by the Clerk in the above-entitled matter. Dated: July 06, 2011 Venetia H. Velazauez. Esa. CLERK OF T UPERIOR COURT CAMEIL A. CLARKE COURT CLERK | SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS, ) Plaintiff, 5 vs. CASE NO. ST-10-CV-301 AHMOI LEWIS, 5 Defendant. ) MEMORANDUM OPINION Pending before the Court is Defendant Lewis’s motion to suppress tangible evidence. For the following reasons, Defendant’s motion will be denied. FACTUAL AND PROCEDURAL HISTORY On May 31, 2010, Lewis and Komorr Donastorg were exiting Magen’s Bay Beach Park as passengers of a Suzuki Esteem driven by Jeffrey Carty. Before the group was able to exit the park, Carty’s vehicle was stopped by the Virgin Islands Police Department (VIPD) and searched. The VIPD seized a handgun in the vehicle’s seat pocket. Lewis filed a motion to suppress on July 30, 2010. On August 10, 2010, the Court held a suppression hearing pertaining to the seized evidence. On August 18, 2010, Lewis filed a supplement to his motion to supress asserting that the search of the vehicle was illegal and violated his Fourth Amendment rights. ANALYSIS The Fourth Amendment protects an individual’s reasonable expectation of privacy from being violated by illegal searches and seizures. Kimmelman v. Morrison, People of the Virgin Islands v. Ahmoi Lewis ST-10-CV-301 Memorandum Opinion, June 05, 2010 477 U.S. 365, 374 (1986). In order to be legitimate, a search must be done pursuant to a warrant that was issued after probable cause was properly established and the scope of the search must be described with particularity in the warrant. Kentucky v. King, 131 S.Ct. 1849, 1856 (2011). Warrantless searches are per se unreasonable, but there are several exceptions. Reedy v. Evanson, 615 F.3d 197, 225 (3d Cir. 2010). Voluntarily given consent legitimizes a warrantless search. Jd. Similarly, a police officer may perform a warrantless search of a vehicle if he has “reasonable or probable cause for believing that the automobile which he stops and seizes” contains the items he is entitled to seize. Government of Virgin Islands v. Williams, 739 F.2d 936, 939 (3d Cir. 1984). A police officer may stop a moving automobile “when the officer has a reasonable and articulable suspicion that the vehicle's occupants are involved in criminal activity.” U.S. v. Fields, 176 F. App’x 327, 329-330 (3d Cir. 2006). On May 31, 2010, Virgin Islands law enforcement officers had probable cause to stop the Suzuki Esteem. Previously that morning, Marshall Blyden had been approached by an older lady and another citizen who indicated that two light colored black males were causing trouble, one of whom had braids, a yellow shirt, and was brandishing a gun. The lady pointed in the direction where the males had walked, and as Blyden walked in the direction indicated, he spotted a light colored black male with braids wearing a yellow shirt. Blyden then informed the police dispatch what had been reported to him, whereupon dispatch informed him that the VIPD had already received reports of the incident. Blyden then lost sight of the male with the yellow shirt and met up with Officer Monsanto to resume the search. When the two officers approached a picnic bench, People of the Virgin Islands v. Ahmoi Lewis ST-10-CV-301 Memorandum Opinion, June 05, 2010 Blyden noticed the male he had seen previously with the yellow shirt sitting amongst a group of people on the bench. At this point, the male was now wearing a flannel shirt. Officer Monsanto commented that “those two guys be with the Lewis brothers, they hang out with the Lewis brothers.” (Transcript of suppression hearing, at page 12). Monsanto also mentioned that one of the males was named Komorr. (/d.) The two officers then left the picnic bench area and Blyden was again approached by the citizens who approached him earlier. At this point, the citizens informed Blyden that the male who was wearing the yellow shirt “goes by the name Komorr.” (Jd, at 14). Blyden then told Officer Rhymer that the male wearing the yellow shirt was named Komorr. Shortly thereafter, Blyden noticed Jeffrey Carty driving a Suzuki Esteem with the male named Komorr as a passenger. As Carty was driving, he was moving his head back and forth in a suspicious manner. Blyden then reported this information to dispatch. A short time later, Rhymer spotted a Suzuki Esteem with a license plate that matched the information Blyden had submitted to dispatch. Rhymer and a group of other officers ordered the car to come to a halt. As Rhymer approached the vehicle, Jeffrey Carty was in the driver’s seat, Komorr Donastorg was in the passenger seat, and Ahmoi Lewis was seated on the right side of the rear of the vehicle. Rhymer ordered all the occupants out of the car and then asked Carty for his consent to search the vehicle. At first, Carty said “no,” but Rhymer testified Carty approached him moments later and spoke the following into his ear: “well, okay, you can search the vehicle.” The police then searched the vehicle and found a handgun in the back pocket of the right passenger seat. The handgun was then seized. . ty People of the Virgin Islands v. Ahmoi Lewis ST-10-CV-301 Memorandum Opinion, June 05, 2010 Lewis challenges the voluntariness of Carty’s consent because at the time the vehicle was stopped, approximately ten officers were present on the scene with weapons drawn. “Defendants [also] maintain that the police asked for permission to search the car at least four times and consent was refused each time.” (Defendant’s case law supplement regarding coerced consent, at page 3). Courts consider the totality of the circumstances when reviewing whether consent was voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). The Third Circuit has identified some signs of coercion that would affect the voluntariness of the consent, such as when officers draw their guns, the suspect is handcuffed, or the suspect is deceived or intimidated into signing a consent form. U.S. v. Thach, 411 F. App’x 485, 489 (3d Cir. 2011). Here, the officers admitted that their weapons were drawn, but this lone fact is not determinative. See U.S. v. Curls, 219 F. App’x 746, 755 (10th Cir. 2007) (consent voluntary even though officers drew their weapons and used handcuffs); United States v. Espinosa-Orlando, 704 F.2d 507, 510, 513 (11th Cir. 1983) (consent voluntarily given after four officers drew their weapons, told defendant to lie on the grass, and asked for consent while defendant was on the ground and one officer still had his weapon drawn); United States v. Guiterrez, 92 F.3d 468, 471 (7th Cir. 1996) (“nothing so inherently coercive about ... law enforcement officers brandishing weapons, handcuffing [defendant], and ordering him up against a wall ... to render subsequent cooperation involuntary”). The record reveals that Officer Rhymer, who interacted with Carty and acquired the consent to search, did not have his weapon drawn. Carty was not handcuffed and . ‘ People of the Virgin Islands v. Ahmoi Lewis ST-10-CV-301 Memorandum Opinion, June 05, 2010 there is no evidence that he was deceived or intimidated into giving his consent to the search. Although Lewis asserts that “the police asked for permission to search the car at least four times and consent was refused each time,” Lewis has not submitted an affidavit supporting this statement. Moreover, Lewis has not specified which individual(s) denied the police’s request to search the vehicle four times. Considering that Carty was the individual operating the vehicle, any refusal by Lewis or Donastorg would be immaterial. Based on the totality of the circumstances, Carty voluntarily gave his consent to search the vehicle. Assuming, arguendo, that Carty did not voluntarily consent to the search, the police were justified in making the search under the automobile exception. In U.S. v. Martin, 400 Fed.Appx. 536, 537-538 (11th Cir. 2010), a victim reported that defendant had threatened her with a gun. The police found defendant near a truck with the door opened. After patting defendant down and not discovering a gun, a search of the truck was justified because “a fair probability existed that the weapon would be found inside [the] truck, and therefore the officers had probable cause to search it.” Jd. See also United States v. Salmon, 944 F.2d 1106, 1124 (3d Cir. 1991) (“as no guns were found on any of the defendants, the next logical place to look was in the defendants' cars”). Similarly, area searches incident to a Terry stop are appropriate if a suspect “may be able to gain access to weapons to injure officers or others nearby, or otherwise to hinder legitimate police activity.” Michigan v. Long, 463 U.S. 1032, 1050 (1983). See also United States v. Sobratti, 70 F. App’x 73, 76 (3d Cir. 2003) (limited search for weapons . fy People of the Virgin Islands v. Ahmoi Lewis ST-10-CV-301 Memorandum Opinion, June 05, 2010 during a Terry stop “may extend beyond the person of the suspect to the area under his immediate control, including a passenger compartment of an automobile”). Here, once the VIPD patted Lewis, Komorr, and Carty down and did not discover a gun, they had probable cause to believe that the gun that Komorr brandished about on the beach was located in the car. As a result, the VIPD’s search in this case was not illegal. Notwithstanding, Lewis argues that even if the police were justified to stop the car because Komorr Donastorg was an occupant, the police lacked any reasonable suspicion against Lewis. Lewis cites Ybarra v. Illinois, 444 U.S. 85, 91 (1979) for the position that “mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” In Ybarra, police had probable cause to enter a tavern and search a bartender for narcotics pursuant to a search warrant. While in the tavern, the police also illegally searched and seized narcotics from a patron of the tavern. Unlike in Ybarra, however, the handgun in this case was not seized from Lewis’s person, but rather from a seat pocket of Carty’s car. There is “no recognition of the legitimacy of a defendant's expectations of privacy where the area searched is in the control of a third party.” Williams, supra, at 938. “Fourth Amendment rights are personal rights, which, like some other constitutional rights, may not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). The petitioners in Rakas and in Williams failed to satisfy the “legitimate expectation of privacy requirement for a valid Fourth amendment claim” when items were seized in a car in which they were passengers. Williams, supra, at 939. Similarly, 4 ‘ People of the Virgin Islands v. Ahmoi Lewis ST-10-CV-301 Memorandum Opinion, June 05, 2010 Lewis has presented no evidence that he owned or controlled the Suzuki Esteem at the time of the arrest, nor has he claimed ownership in the handgun that was seized. In fact Lewis disclaimed ownership in the gun when the police discovered it in the car (See Defendant’s motion for suppression, at page 3). Accordingly, Lewis’s motion to suppress will be denied. An Order consistent with this Opinion shall follow ‘SS Dated ju rer HON. MICHAEL C. DUNSTON ST: Venetia H. Velazquez, “ate JUDGE OF THE SUPERIOR COURT of Court / f THE VIRGIN ISLANDS U by: Lo Rai cob Clerk Supervi i ad CERTIFIED A TRUE COPY Date: © Ole O! Venetia HWelavauez, Esq A] Court (¥ Ms By: Court Clerk SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS ) ) Plaintiff. ) ) vs ) CASE NO. ST-10-CV-301 AHMOI LEWIS Defendant ORDER Upon consideration of the premises, it is hereby ORDERED that Defendant Lewis’s motion to suppress is DENIED; and it is ORDERED that a copy of this Order shall be served upon Defendant Lewis and directed to counsel of record Dated y > 2011 "id... HON STON ATTES/: Venetia H. Ve quez, Esq JUDGE OF THE SUPERIOR COURT f Court / / F THE VIRGIN ISLANDS NMkvg t L oynes-Tyso Court Clerk Sup isor Fi lid ‘ERTIFIED A TRUE COPY _ 01/0) al Venetia H. facto cue UeZ, 5d. Cle (ig ourt ri dh o By: Court Clerk