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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS, ) CRIMINAL NO. ST-12-CR-187 ) Plaintiff, ) V.I. Code Ann. tit. 20, § 493(a) ) vs. ) ) THOMAS P. STIMAC, ) ) Defendant. ) MEMORANDUM OPINION THIS MATTER came on for a suppression hearing on June 7, 2012.' At issue in the suppression hearing is whether the alleged traffic enforcement initiative was so arbitrary as to be unreasonable under the terms of the Fourth Amendment of the U.S. Constitution and the Revised Organic Act of 1954,” and whether the stop and seizure and its fruits should be suppressed. The Court believes that the enforcement initiative did not have the requisite safeguards under Supreme Court case law and for that reason the stop of the Defendant was illegal, and the results of the sobriety test and the Defendant’s arrest will be suppressed. STATEMENT OF THE FACTS This matter came on for a suppression hearing on June 6, 2012. The People called two witnesses during the suppression hearing, and the Defendant also testified in his own behalf. The first witness for the People was Lieutenant Rosalyn Jarvis. She has been the traffic commander at the Virgin Islands Police Department in St. Thomas for 14 years. Her duties include supervising police officers, writing grants, and making recommendations as to how to improve traffic safety. She stated that traffic initiatives are regularly conducted by the Virgin Islands Police Department to ensure that motorists are complying with seatbelt, speed and other laws, including drunken driving laws. The checkpoints are conducted by having an officer set up a Stationary site in a designated area. Generally, in selecting a checkpoint, the Lieutenant looks for locations that have officer safety, lighting, motorist safety, areas visible to the public, and a large area for motorists who are pulled over. Officers are attired in full uniform with vests or a polo shirt with badges. ' The People were represented by Assistant Attorney General Brenda Scales, Esq., and the Defendant was represented by George H. Hodge, Jr., Esq. ? Section 3 of the Revised Organic Act provides in part that “[t]he right to be secure against unreasonable searches and seizures shall not be violated.” 48 U.S.C. § 1561 (2006). People of the Virgin Islands v Thomas P. Stimac Criminal No. ST-12-CR-187 Memorandum Opinion Lt. Jarvis further testified that she ordered the traffic enforcement initiative on April 2, 2012. The initiative was conducted in Red Hook and was designed to catch individuals who were driving while impaired. The officers set up in an area across the street from the entrance of Red Hook dock in the parking lot of First Bank Virgin Islands. This area was chosen because there are at least 15 bars in the area and the number of alcohol-related accidents and arrests are high. In the past, they have also set up traffic enforcement initiatives at Veterans Drive, Main Street and Smith Bay. This particular initiative involved stopping every third vehicle, briefly speaking to the driver and making observations with respect to signs of impairment. The initiative was limited in time from 11pm to 3am when the bars would close down. The plan was communicated by Lt. Jarvis verbally to the Officers during a group meeting after roll call. The second witness called by the People was Officer Akeem Turnbull, the arresting officer in this case, who has been a police officer for three years. He stated that he stopped every third vehicle during the initiative, and that he used flashlights to pull the vehicles over. On April 2, 2012, he conducted the traffic initiative by the use of one marked vehicle accompanied by his partner. The officers were also dressed in full uniform and were wearing vests. During his testimony, the Court asked what happens with respect to the stopping of every third vehicle while a motorist is being questioned while vehicle is stopped. Officer Turnbull responded that in those situations, he suspends stopping every third vehicle until the traffic stop has ended. The Officer also conceded that during such a situation that ten or even twenty cars could go by the checkpoint while a stop was in progress. Officer Turnbull also stated that this method of suspending the selection of every 3 vehicles during a stop, and then resuming the stops, is the way that he had been trained to carry out a traffic initiative. He did not remember how many vehicles he stopped that night With respect to the actual stop of the Defendant Thomas Stimac, Officer Turnbull testified that upon being pulled over, the Defendant stumbled out of the car when asked to exit the vehicle, and that he had the scent of alcohol on his breath. He admitted that he had been drinking, and when asked if he had any other physical disabilities, Stimac responded that he did not. A field sobriety test was administered, and Stimac failed the test. Stimac was then placed under arrest and he later refused to take a breathalyzer test. Defendant Thomas Stimac took the stand in his own defense during the suppression hearing. He stated that he arrived on St. Thomas on April 1, 2012, and that during the night in question, he had a glass of wine, which he did not finish. Upon exiting a restaurant, and walking around for a short period of time, he got in a rented vehicle and headed back to Sapphire Beach Resort. He stated that upon being pulled over, he asked why he was being pulled over, and the Officer did not mention anything about a traffic initiative. He stated that he failed the field sobriety test due to his bad back and glaucoma. DISCUSSION At issue in this case is the legality of the alleged traffic enforcement initiative utilized by the Virgin Islands Police Department during the morning hours of April 2, 2012. The People argue that the traffic enforcement initiative was reasonable under the fourth amendment and also People of the Virgin Islands v Thomas P. Stimac Criminal No. ST-12-CR-187 Memorandum Opinion under Title 20 of the Virgin Islands Code, Section 475 which allows the traffic bureau to carry out programs and initiatives to reduce accidents.’ Stimac argues that the alleged initiative was arbitrary and capricious. Further, Stimac argues that no executive or administrative rule or regulation may have force and effect unless it goes through a process where it is approved by the Governor, filed and published in the V.I. Register, submitted to the Legislature for review, and notice of the promulgation of the regulation is published in at least one newspaper of general circulation, pursuant to Title 3 of the Virgin Islands Code, Section 913.4 Stimac was also concerned that there was no public notice that the checkpoint would take place. The Court must determine whether the initial stop of Stimac’s automobile was reasonable under Fourth Amendment jurisprudence and whether the fruits should be suppressed. The provisions of the Fourth Amendment are made applicable to the Virgin Islands by Section 3 of the Revised Organic Act of the Virgin Islands. Terry v. Ohio” provides that the police may briefly detain a person without violating 7 Fourth Amendment if they have a reasonable suspicion that the person has committed, committing, or is about to commit a crime and that they may “conduct a brief, investigatory sop when the Officer has a reasonable, articulable suspicion that [such] criminal activity is afoot.”® Brief detentions which result from stops to enforce traffic laws are also usually considered reasonable under the Fourth Amendment.’ The Supreme Court of the United States, in Delaware v. Prouse,® cautioned that traffic stops are unreasonable under the Fourth Amendment if they are not based on reasonable suspicion that there is a violation of the traffic laws or that the vehicle or an occupant are subject to seizure.” At the same time, however, the Court in Prouse recognized that States are free to develop methods for spot checks that involve little intrusion and that do not have an uncontrolled exercise of discretion by law enforcement.'° One such method suggested by the Supreme Court would be to have a road block style of traffic stop where all oncoming vehicles were stopped and the motorists questioned.'! However, the Supreme Court clarified that motorists may not have their travel and privacy interfered with solely at the unbridled discretion of law enforcement.’ > VI. Code Ann. Tit. 20 § 475(b) (1995) (stating that the Traffic Bureau of the Virgin Islands Police Department shall have the duties and prerogatives to “outline, develop and carry out programs, campaigns, and activities for the purpose of preventing and reducing traffic accidents, and facilitating traffic control on the streets and roads of the Territory.”) * VI. Code Ann. Tit. 3 § 913 (1995). ° 392 U.S. 1, 30 (1968). ° Id. q Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (holding that there was no question about the reasonableness of the initial stop of the automobile where it was being driven in violation of the traffic laws of the state). * 440 U.S. 648, 663 (1979). ° Delaware v. Prouse, 440 U.S. 648, 663 (1979). '° Td. People of the Virgin Islands v Thomas P. Stimac Criminal No. ST-12-CR-187 Memorandum Opinion In Michigan Department of State Police v. Sitz,'> the Supreme Court approved the type of traffic initiative stop that would pass muster under the Constitution. In Sitz, the Director of the State Police, concerned about traffic accidents caused by drunk drivers, appointed a Committee which set up guidelines for procedures governing sobriety checkpoint operations, site selection, and publicity. At these checkpoints, all motorists were stopped and questioned for signs of intoxication. The checkpoints resulted in approximately 1.5 percent of the motorists that passed through the checkpoint being arrested for driving while under the influence of alcohol. The degree of intrusion upon motorists was evaluated by the Court to be negligible and the checkpoints were upheld. In Government of the Virgin Islands v. A li,'* this Court applied the principles espoused in Prouse and Sitz to determine the constitutionality of a traffic stop based upon a verbal command of a supervisory officer conducted in St. Croix pursuant to a roadblock in which every motorist in a defined area was to have been stopped and questioned about their drivers’ license, registration and insurance. As the Court observed in Ali, the plan to stop all motorists at the checkpoint, “did not happen” and “officers permitted cars to pass through the roadblock while they were engaged in checking” the credentials of the drivers of other cars that had previously been stopped.'* Since there was no reason for stopping the motorist in A/i, other than the verbal command of the supervisory officer, and since the checkpoint procedure was only sporadically enforced, the Court found that the stop of Ali did not comport with the Constitution and granted the motion to suppress. °!7 Reviewing the facts of this case, the Court cannot distinguish it from A/i. Although Lt. Jarvis painted a picture of carefully selected sites for traffic initiatives which were limited in time and which were only conducted at carefully selected locations, the manner in which the alleged traffic initiative was actually conducted appears to the Court to be arbitrary and random. Although Officer Turnbull stated that every third car was selected, and the motorists were questioned, in practice only one in twenty or possibly fewer cars were actually singled out to be stopped and questioned, since the police did not have the requisite manpower to stop and question one out of every three motorists. The only response to the question as to why the initiative could have not been conducted in a manner so that it was not unduly arbitrary was that the Traffic Division had conducted such stops in this manner in the past. '5 496 U.S. 444 (1990). '4 45 V.L. 164 (Terr. Ct. 2003). 'S Td. at 166. "6 Td. '? See also People of the Virgin Islands v. Adam Lawrence Eichenauer, No. ST-09-CR-141, 2009 WL 8392403 (V.I. Super. August 31, 2009). People of the Virgin Islands v Thomas P. Stimac Criminal No. ST-12-CR-187 Memorandum Opinion Stimac argues in his supplemental brief that was submitted after the hearing, that written regulations should be issued, approved by the Governor, filed and published in the V.I. Register, submitted to the Legislature for review with notice of publication in a newspaper of general circulation. Although some type of written direction from a supervisory official in the Virgin Islands Police Department is desirable to assure that the traffic initiatives are not conducted in an arbitrary manner, the type of many-tiered review procedure suggested by Stimac is more cumbersome than it needs to be to be considered reasonable. The Court’s ruling and its finding is simply that the traffic initiative utilized in this case was arbitrary in selecting the motorists that were stopped, and that it was therefore unreasonable under the Fourth Amendment and the Revised Organic Act. The Court will therefore, grant the motion to suppress. DATED: June 8 r012 JAMES S. CARROLL III Judge of the Superior Court ATTEST: of the Virgin Islands