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, , : : 1 ! I! Il I: : i ! ! ! ! i! , . I ' Ii II II I, I ' q i , i i i ) , ' , I II I: i i I: 11 Ii I, II i 1 Ii I ' Ii II II II 1, i i 'I II II I, I' ,I , ! i I : I ; , NOT FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX PEOPLE OF THE VIRGIN ISLANDS, ) CASE NO. SX-09-CR-418 ) SX-09-CR-419 Plaintiff, ) SX-09-CR-420 ) SX-09-CR-421 v. ) CARE EM AMBROSE, ) ) Defendants. ) ) ------------------------ ) MEMORANDUM OPINION to ·:i, THIS MATTER is before the Court on Defendant Craig Cambran's Motion i Suppress Statements and Evidence, filed February 8, 2010. Defendants, Ferris Knight, 1 I . ! Careem Ambrose and Hanif Wathey join in this motion. (Ree. of Proceedings, entered! ; Feb. 8, 2010.) The Court held a hearing on the motion on November 15, 2012. All Parties I were represented. For the following reasons, the Court will grant the instant motion. I. FACTUAL AND PROCEDURAL HISTORY I I On midnight, August 7, 2009 , Officers Parris and Francois of the Virgin Islandsl Police Department were on mobile patrol in a marked police car, on the Melvin H. Evansl Highway, traveling westward in the vicinity of Profit Hills. Officer Parris testified thatl i I he and his partner observed a white Nissan vehicle (License Plate No. CDU-383) traveling in front of their police, at approximately 50 to 55 miles an hour. Thei vehicle did not slow down when it reached the East Airport road, despite the signl indicating drivers were required to reduce their speed to 30 miles an hour. officers i continued to follow the Nissan and observed that at the Wiliiam Roebuck intersection, I , the vehicle continued at a rate of speed of 50 to 55 miles an hour, despite a second ! , i , posted sign informing drivers of the speed limit of 30 miles an hour. Office Parris, the! , , , driver of the police vehicle, testified that he put his police lights on, indicating that the , i i i I j' i t ! i i' : ; , " i ji i I I ! People of the Virgin Islands v. Kareem Ambrose et. al. SX·09-CR-418 MEMORANDUM OPINION driver should stop the vehicle. The officers observed four occupants in the vehicle, later, identified as Defendants, Ferris Knight, Careem Ambrose, Craig Cambran and Hanif' Wathey. Knight was the driver, Ambrose was seated in the front passenger seat, : Cambran in the rear on the driver's side and Wathey was seated in the rear behind the front passenger. . Shortly thereafter, Officer Parris testified that the Nissan, driven by Knight! , stopped on the side of the road, in the vicinity of Estate Paradise and Yellow Cedar. i Officer Parris requested via the patrol unit's speaker, that the driver step out of the: , I , vehicle and produce his driver's license, vehicle registration, and proof of insurance. i I ! Ferris Knight then exited the vehicle with his documents in hand and approached theiri ! unit. While Officer Parris was advising Ferris Knight as to the reason he was beingl I , stopped, the right side rear seat passenger (later identified as Wathey), exited the! vehicle and allegedly stated, ""Officers I need to pee bad", before walk towards the! I bushy area on the left side of the roadway holding the front his pants_ Immediately I I after, the driver side rear passenger (later identified as Cam bran) suddenly exited thel ! vehicle and also stated that he had to pee and started to walk towards the bushes,! I holding the front his pants. i I Concerned for his own safety and the safety of Office Francois, Officer Parris I , testified that he told Cambran and Wathey to stop. When asked why he did so, Officer! I Parris explained "[fjor our safety. At that time, there's four individuals in the car, it'sl I late at night so were trying to get some kind of control before we proceed to a traffic i i stop." (Supp. Hr'ng. pg. 7, lines 20 -24.) Officer Parris, then requested that Ambrose i I , I exit the vehicle. Officer Parris then proceeded to ask Knight, if he had anything on him, ! ; I' j' ! I , , . i t: I I , , , ' I I ! I I I Ii 11 People of the Virgin Islands v. Kareem Ambrose et. 01. 5X·09·CR·418 MEMORANDUM OPINION Knight stated that he did not. Officer Parris also stated that he asked Knight if he could ; search the vehicle and that Knight replied, "Yes, everything is safe." (/d. at pg. 8, line! 11.) A subsequent pat down of Knight, Wathey, Cambran, and Ambrose's clothing was : I - conducted to check for any hard objects that may be a possible weapon. Officer Parris testified that no items were found on the Defendants' person. , Officer Parris then walked to toward the passenger side door to conduct a search i ; of the vehicle, at which time the officer stated he could smell the faint odor ofl i marijuana coming from the inside of the vehicle. When he shone his flashlight inside the i vehicle, he observed in the center console cup holder, a small clear zip lock bag (dime ! I I bag) containing a green leafy substance suspected to be marijuana, along with a box of l bamboo paper, and a piece of brown tobacco leaf, in plain view. Officer Parris then I ! proceeded to conduct a search of the vehicle. Officer Parris testified that while I searching the vehicle, he observed a black back pack and a brown paper bag on the floor behind the front passenger seat. He picked the bag up black back placed the bag I on the back seat and then put his hand on the outside of said bag, which, he observed I I j was very soft and appeared to contain a heavy object. A closer inspection of the bag revealed a silver handgun with a brown handle. I Officer Parris immediately shouted "gun" to alert his partner. The gun was the only item I recovered from the black bag. Officer Parris asked the Defendants if any them were I licensed in the Virgin Islands to possess, carry or own a firearm. They all stated that \ they were not. Shortly afterward, the Defendants were read their Miranda rights. I I I I Forensic Officer M. Hector field tested the suspected marijuana, which was I , I determined to be positive. The firearm in question was later identified as a .380 Sterling i . i , , . , . ; I ! ; , . , i i : i I : ! 1 i I ! l q I , , , II .1 , , II I' Ii ! I I' I! Ii I ! , ' Ii i 1 I' II i I Ii I ' II I I II I ' I' II i I J I I, Ii II II ! i Ii ! , II ! i i I I ' ; I People of the Virgin Islands v. Kareem Ambrose et. 01. 5X·09·CR·418 MEMORANDUM OPINION Mark II 01 A Arms Stainless, Model 400. It was also determined that the firearm magazine' was loaded with (8) live. 380 caliber rounds of ammunition. None of the Defendants are, licensed to possess or carry · a firearm in the U.S. Virgin Islands. Defendant Careem' ; Ambrose and Ferris Knight were later charged with Unauthorized Possession of a. Firearm! Principal in violation of Section 2253(a) & 11 (a) of the Virgin Islands Code; i ; ; Failure to Report Ammunition Obtained or Brought Into the Virgin Islands! Principal in! , i violation of Section 470 (a) of Title Twenty Three & of the Virgin Islands and Sectionl , 11 (a) of Title Fourteen of the Virgin Islands Code and Simple Possession of a Controlled! i Substance in violation of Section 607(a) of Title Nineteen of the Virgin Islands Code. i ! Ferris Knight was also charged with Speeding in violation of Section 494(a) of Title! i , Twenty of the Virgin Islands Code. Defendants Wathey and Cambran wen; charged With l I Unauthorized Possession of a Firearm! Principal in violation of Section 2253(a) & 11 (a) i of the Virgin Islands Code; Failure to Report Ammunition Obtained or Brought Into the \ Virgin Islands! Principal in violation of Section 470 (a) of Title Twenty Three & of the I Virgin Islands and Section 11 (a) of Title Fourteen of the Virgin Islands Code i Defendants argue that the traffic stop, as well as the search and seizure was ! done in violation of the Defendant's Fourth Amendment rights under the United States ! Constitution. As such, the Defendant contend that the items seized from the Defendants ! car must be suppressed. II. STANDARD AND DISCUSSION , i I I , For the purposes of suppression of evidence, a defendant typically has the burden ! i of establishing that his Fourth Amendment rights were violated by the challenged search ! I I i , . People of the Virgin Islands v. Kareem Ambrose et. at. SX·09·CR·418 MEMORANDUM OPINION or seizure. United States v. Murray, 53 V.1. 831, 842 (D.V.1. 2010) (quoting Rakas V. , i Illinois, 439 U.S. 128, 132, 99 S. Ct. 421 , 58 L. Ed. 2d 387 (1978». i; : However, when the search or seizure at issue was conducted without a warrant, the' i, Ii , I 'I L Ii Ii II I .1 / I I! I I / I i I Ii I: I! / I I, I ' JI Ii II I I I, II ! , I i I I I I II I ' I! burden switches to the government to demonstrate the existence of a . recognized exception to the warrant requirement. Id. The Fourth Amendment of the U.S. Constitution guarantees the right of a person to i i be free from unreasonable searches and seizures. ' U.S.C.A. Const. Amend. 4. Ai i , "search" occurs when an expectation of privacy that society is prepared to consider j I I reasonable is infringed. United States v. Jacobson, 466 U.S. 109, 113 (1984). A "seizure" i I of property occurs when there is some meaningful interference with an individual's i ! possessory interests in that property. Id. Searches conducted outside the judicial! / process are per se unreasonable, subject only to a few specific exceptions. Arizona v.1 Gant, 556 U.S. 332, 338 (2009)(citing to Katz v. United States, 389 U.S. 347, 357, 88 \ S.Ct. 507, 19 L.Ed.2d 576 (1967». The Court is tasked with evaluating every situation I ; based on the circumstances of that particular search or seizure. See United States v. 1 i Montoya de Hernandez, 473 U.S. 531 (1985). i I A. Did the Officers seize the Defendants? ! I Under the law, a "traffic stop" entails a seizure of the driver "even though the I . I i purpose of the stop is limited and the resulting detention brief." Brendlin v. California, ! I 551 U.S. 249, 255 (2007)(citing De/aware v. Prose, 440 U.S. 648, 653, (1979); see a/so I I Government of the Virgin Is/ands v. Ali, 45 V.1. 164 (Terr. Ct. 2(03»). When police i make a traffic stop, a passenger in the car, like the driver, is seized for Fourth i I ! , The Fourth Amendment is made applicable to the Virgin Islands pursuant to Section 3 of the Revised i Organic Act of 1954, as amended. See 48 U.S.CA. § 1561. I I' , . , - , , \ i i i 1 l' I , . , People of the Virgin Islands v. Kareem Ambrose et. al. 5X-09-CR·418 MEMORANDUM OPINION Amendment purposes and so may challenge the stop's constitutionality. Id. at 250. In' i • this matter, law enforcement officers stopped the Defendants on the allegation that: : i i i : 1 I! , I 1 ! \ \ : I II I ! II I! II t ~ I I I , IJ 1 : , I Ii I; d , I Ii II i I 11 ! I 1 1 I' I! they committed a traffic violation, thus the Officers committed a seizure. B. Did the Officer have the right to seize the Defendants? An officer's decision to stop an automobile must not be "unreasonable" under thei , circumstances surrounding the stop. Id. at 810. Generally, "the decision to stop an'\ i automobile is reasonable where the police have probable cause to believe that a traffic! i violation has occurred." Whren v. United States, 517 U.S. 806 (1996). Reasonable! , suspicion and probable cause are determined with reference to the facts and i I circumstances within the officer's knowledge at the time of the investigative stop or: I i arrest. Devenpeck v: Alford, 543 U.S. 146 (2004). In this maUer, Officer Parris testified I I that he and his partner witnessed the vehicle in question, commit two traffic violations i by failing to decrease its speed despite the posted speed limit at two separate i intersections in violation of 20 VoLe. § 494_ Defendants' put forth no evidence to refute I , Office Parris' assertion. The Court finds that the traffic stop of the Defendant -was i I lawful and constitutional. I I e. Did the Officers act within the scope of the initial seizure? , Once a vehicle is lawfully detained, an officer may order a driver to step out of I , ! vehicle. Johnson, 555 U.S. at 324 (quoting Pennsylvania v. Mimms, 434 U.S. 106, 109. \ After the Nissan was pulled over, Officer Parris' ordered the driver, Ferris Knight to exit I I the vehicle with his documents, license, registration and proof of insurance and bring I them to the police car. While Officer Parris was advising Knight as to the reason of him being stopped, Wathey abruptly exited the vehicle and allegedly stated, .... Officers I , , . , , . People of the Virgin Islands v. Kareem Ambrose et. a/. SX·09·CR·418 MEMORANDUM OPINION ! ' need to pee bad", before walking towards the bushy area on the left side of the roadway , , , holding the front his pants. Immediately after, Cambran suddenly exited the vehicle and ' 1 ' I· also stated that he had to pee and started to walk towards the bushes, holding the front ' his pants. Officer Parris immediately ordered all occupants to exit the vehicle, an act I' which is permitted under the law. Brendlin, 555 U.S. at 263. Defendant Ambrose then , , ; , i i exited the vehicle. j i i! ! ! i: , , ; , ! I : I ; I I ' i i i I I, II II I II Ii I i I! 1 i I I! Ii I i ! I I ' Ii II 1/ I, II II I II II i I ! I It was after both Cam bran and Wathey exited the vehicle without warning, that Officer Parris and Fran<;:ois made the decision to pat down all of the Defendants. A police officer making a traffic stop may also order the passengers to exit the vehicle ; , I pending the completion of the stop. Mary/and v. Wilson, 519 U.S. 408 (1997). However, i I to justify a pat down of the driver or a passenger during a traffic stop, the police mustl I harbor reasonable suspicion that the person subjected to the frisk is armed and I I dangerous. Arizona v. Johnson, 555 U.S. 323,332 (2009)(quotations omitted). The l i behavior of Cam bran and Wathey could be seen as raising suspicion that the Defendants I i might be armed and dangerous, even though the Court concedes their behavior could I ! also be viewed as the behavior of two persons who had to urinate badly. Nevertheless, I the Court finds that the pat down of the Defendants' was within the scope of the \ II seizure. I D. Did the Officers have qrounds to extend the search? I i After patting down all of the Defendants, Officer Parris asked Knight if he could i I I search his vehicle. It was at this paint that Officer Parris and Francois went beyond thel i scope of the traffic stop and converted' this into a Terry stop. After a justified and l I , I lawful traffic stop, an officer who develops a reasonable, articulable suspicion of, , , , , I I ,I I' l ~ Ii " I' I! II II I, II " , I I i , I Ii Ii I I! II I, i I ~ I Ii II Ii II II I \ ;! I ' ! ! People 0/ the Virgin Islands v. Kareem Ambrose et. al. SX·09·CR·418 MEMORANDUM OPINION criminal activity may inquire beyond the reason for the "traffic stop" and may detain the vehicle and its occupants for further investigation. United States v. Givan, 320 F. 3~ 452, 458 (2003); see also Illinois v. Wardlow, 528 U.S. 119, 123 (2000)(citing Terry v.; ! Ohio, 392 U.S. 1, 30 (1968». The purpose of a Terry stop is not to discover evidence of a i crime, but to allow officers to pursue their investigation without the fear of violence;! ; People v. Archibald, 50 V.I. 74, 92, 2008 VI LEXIS 23 (Super. Ct. 2008). The Court finds that given the totality of the circumstances, Officer parris'i ! detention of the Defendants related to issue a warning ticket, and later ascertainin~ \ that the Defendants were not carrying weapons on their persons, went beyond the scopel I of the lawful seizure. "A seizure that is justified solely by the interest in issuing a! I warning ticket to the driver can become unlawful if it is prolonged beyond the timei reasonably required to complete that mission." See generally Illinois v. Caballes, 1231 U.S. 405, 408. In this matter, Knight was pulled over because he violated traffic laws. ! Wathey and Cambran's decision to jump out of the car and assert that they had to peel , gave officers justifiable cause to pat down the Defendants. However, after all the I I Defendants were patted down and no weapons were found, there is no evidence that! I even suggests that the stop of the Defendants should have continued. Compare Givan, ! 320 at 452. (appellate court affirmed lower court's denial of defendants' motion to I I suppress)(during traffic stop, the officer received conflicting stories from the i I defendants regarding their travel plans, the defendants were in an out of state rental I ! car, and one of the defendants acted nervous and fidgety); see also People of the Virgin [ i Islands v. Margas, 54 V.1. 3, 2010 VI LEXIS 19 (Super. Ct. 2010)(Court denies defendants' I , i motion to suppress, finding that it was reasonable for officer to extend stop)(offker ! People of the Virgin Islonds v. Kareem Ambrose et. a/. , SX·09-CR-418 i: MEMORANDUM OPINION , , . became of. the driver's delay in retrieving his license, registrations and proof of ' i ' insurance, the driver's visible nervous demeanor and the continual "unabated" furtive i , , , , . ! i movements of the defendants' inside of the vehicle.)). E. Did the Officers bbtain Knight's consent to search his car lawfully? - Officer Parris' unlawful extension of the stop is not obviated by Knight's subsequent ! i , consent to the search. In Schneckloth the Supreme Court stated that voluntariness "is a i , ; " question of fact to be determined from the totality of all of the circumstances_" ! :: i I i 1 i i Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The government may conduct a search i : I ( ; : without a warrant or probable cause if an individual consents to the search. . See i I! ,i , ' I i Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041 (1973). Such consent must i I i i i I be voluntary and cannot be the product or duress or coercion. Id. at 223, 227. The I' Ii I! People bear the burden of establishing, by a preponderance of the eVidence, that I " I i i consent was voluntarily given in light of the surrounding circumstances. United States v. I II Sebetich, 776 F.2d 412, 424 (3d Cir. 1985). In evaluating voluntariness, the Court must I i i " I I II assess the totality of the Circumstances, without giving dispositive effect to anyone \ I' I' factor. Schneckloth, 412 U.S. at 226-27. I i , Some of the factors that the court may take into consideration are defendant's age, ! I, I i! education, and intelligence; whether the officers told the defendant he could refuse to I i i I! I ' I[ I! I I I I I , I I, 'I I, II I' I! I ' ; I consent; whether the defendant was informed of his constitutional rights, the length of i· ! the encounter, whether the police threatened, physically intimidated, or punished the I I defendant, whether the police made promises or misrepresentations, whether the i defendant was in custody or under arrest when consent was given; and whether the consent occurred in a public or a secluded place. Schneckloth, 412 U.S. at 226-227; People of the Virgin Islands v. Kareem Ambrose et. a/. SX-09-CR-418 MEMORANDUM OPINION United States v. Price, 558 F.3d 270, 278 (3d Cir. 2009). Furthermore, the Supreme Court has indicated that knowledge of the right to refuse consent is "highly reLevant tq , the determination that there had been consent." United States v. Durante, CRIM. No, ! 11·277, 2012 WL 395466 (D.N.J: Feb. 7, 2012) (citing United States v. Medenhall; 466 U.S. 544, 559 (1980)). The Court finds that given the circumstances surrounding Knight's consent of th~ I search of his car, his consent was not freely given. The Court does not find that factorJ such as Knight's intelligence or education level were implicated in whether his consen~ \ was lawful. Nor does the Court find that Office Parris or Francois sought to punish Knigh~ in any way; nevertheless, the factor of intimidation appears evident. It was the middl~ I of the night when Knight's car was stopped by the Officers, Knight was ordered out o~ car by Officer Parris, he had just witnessed Officer Parris order Wathey and Cambran t9 i halt their movement toward the bushes and order Ambrose to get out of the car. He ha~ . also been patted down by Officer Parris, right before consenting to the search of hiJ I vehicle. Further, there is no evidence that Knight had been advised that consent wasl I not required. Archibald, 2008 VI LEX IS at 17. The police are neither required orl I compelled to give this warning to the accused. Id. (citations omitted). However, thel absence of a warning or proof of such knowledge is a factor that may be considered bYI the Court in determining voluntariness. Id. (citing to Schkenc/oth, supra.)). Taken as a! I whole, the Court finds that the Defendant's consent was not voluntary and instead was \ a resuLt of coercion. I i At the suppression hearing, Officer Parris testified that after receiving Knight's I I , I consent to search and patting down the Defendant's, he proceeded to approach the ! , i , I i , i i ! , ' , . Ii i! I' ; , ; ! ; Ii I i I ' , I ! ; I! i I ! , ! I I' I [ Ii II I! II I! ' I / 1 Ii Ii I! li I , 1\ I ! ! [ II I /1 II j i I I, II II [ I People of the Virgin Islands v. Kareem Ambrose et. at. SX-09-CR-418 MEMORANDUM OPINION white vehicle on the passenger side and that while approaching the vehicle, he smelled i the odor of marijuana. (Supp. Hr'ng_ pg. 12, lines 4 -7.) He was able to identify the : "faint" odor of marijuana because of his years of experience and training as a police ; I officer. (/d. at lines 21 -24.) Officer Parris- also testified that he viewed the marijuana when he shone his flashlight into the front of the car _ (/d. at lines 12 -14.) Under the i i Fourth Amendment, a seizure is lawful under the plain view doctrine if the officer is i ; lawfully in a position to observe the items and it is immediately apparent to the officer I that the items are evidence of a crime, contraband, or otherwise subject to seizure_ seel Horton v. California, 496 U.S. 128 (1990). : , 1 ! Despite Officer Parris' testimony that he smelled the faint odor of marijuana as j I he walked toward Knight's car, Officer Parris was not lawfully in a position to view the items because his actions were predicated on Knight's consent to search his vehicle. The. I Supreme Court has mandated that two factors have to be present for the plain view I doctrine to be proper. First, the officer has to be in a position to lawfully observe the I. i items in question. Id_ If Officer Parris had testified that as he approached the vehicle tol engage Knight as part of the lawful traffic stop and noticed what he believed to bel i marijuana in the front seat console, the Court would find this entirely more persuasive. I Alternatively, if the Defendant had been placed under arrest, it would have been i permissible for Officer Parris to conduct a limited search for evidence related to thel , arrest. Arizona Y. Gant, 556 U.S. 332 (2009). But Knight was not under arrest and no evidence has been put forward to suggest that he would have been arrested fori I i speeding. Officer Parris approached the vehicle with the intent to search it, only afterJ · ' : ; l· , , I i. , ' People of the Virgin Islands v. Kareem Ambrose et. 01. SX-09-CR-418 MEMORANDUM OPINION receiving consent from Knight. Consent that the Court finds was not freely given. As. such, the Court does not find that the plain view doctrine applies in this matter. i III. CONCLUSION I , , , , : ' i ' I ! , ! i l \ : j : , , I ! I ; : , i I I ~ I ' i 1 'i I! II II 1\ I I I \ I i i I! , , I I I 1 i I ' II II II II II II : I' 11 Ii - The Court finds after review of the record and the totality of the circumstances i l surrounding this matter, the People have failed to establish that the Officers did no~ i , unlawfully convert the traffic stop of the Defendants into a Terry stop. Further, the: I Court finds that the evidence does not support the supposition that Knight's consent t~ , the search the vehicle was not a result of coercion. Ultimately, the Court holds that the! subsequent search of the vehicle violated the Defendants' Fourth Amendment rights_ Asl ! a result, the items seized from the vehicle are inadmissible as the fruit of the unlawful, i search_ Accordingly, Defendant Craig Cambran's Motion for Suppression of Evidence andi Statements will be granted. An order consistent with this opinion will follow. DONE AND SO ORDERED this -r4 ' ZO day of September, 2013. C~2 J~ DEAN D~NOHIT& Presiding Judge of the Superior Court I I I I i I I \ I I I I NOT FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX PEOPLE OF THE VIRGIN ISLANDS, ) CASE NO. SX-09-CR-418 Plaintiff, ) SX-09-CR-419 ) SX-09-CR-420 ) SX-09-CR-421 v. ) CARE EM AMBROSE, ) Defendants. ) ) ) -----------------------) ORDER i 1 THIS MATTER came before the Court on Defendant, Craig Cambran's Motion ! to Suppress Evidence and Statements. Defendants, Ferris Knight, Careem Ambrose ! and Hanif Wathey joined in the motion. For reasons clarified in the Court's ! Memorandum Opinion of even date, it is hereby i ORDERED that Defendant Craig Cambran's Motion to Suppress Evidence and i Statements is GRANTED. It is further ORDERED that a copy of this order be served via certified mail to all counsel ! , on record for the People of the Virgin Islands, Craig Cambran, Careem Ambrose, I Hanif Wathey and Ferris Knight. ~J DONE AND SO ORDERED this 2..0 day of September, 2013. , I . 1 ATTEST: cS)~ 2~ . DARRvr:;;;";HOHUE.SR. i Presiding Judge of the Superior :