People of the Virgin Islands v. Danny Delerme

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST CROIX

PEOPLE OF THE VIRGIN ISLANDS

PLAINTIFF SX 2020 CR 054

v

DANNY DELERME q, I CITE AS 2023 VI SUPER

DEFENDANT

Appearances

William Appleton, Jr , Esq Virgin Islands Department of Justice St Croix, U S Virgin Islands For People ofthe Virgin Islands

Jeffrey Moorhead, Esq Jeffrey B C Moorhead P C St Croix, U 8 Virgin Islands For Danny Delerme

MEMORANDUM OPINION AND ORDER

WILLOCKS, Senior Sitting Judge

1[ 1 THIS MATTER is before the Court on Defendant Danny Delenne’s (hereinafier

‘ Defendant )motion to suppress filed on September 15, 2022 On September 21, 2022 the People

of the Virgin Islands (hereinafter “People ) filed their oppositions thereto

BACKGROUND

1| 2 On February 25 2020, the People filed an information against Defendant based on the

events that allegedly took place on or about February 4, 2020 as set forth in the affidavit of Police

Officer Darryl Walcott (hereinafter “Officer Walcott”) for securing an arrest warrant, dated

February 20 2020 The information charged Defendant with the following counts

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Count One DANNY DELERME did when not authorized by law have, possess, bear transport, or carry either actually or constructively, open or concealed, a firearm, to wit a Taurus 9mm caliber model 02C serial #TLR98160 in violation of Title 14 V I C § 2253(a) (UNAUTHORIZED POSSESSION OF A FIREARM)

Count Two DANNY DELERME, when unauthorized by law, did, possess, bear transport, or carry either actually or constructively, open or concealed, a firearm, under his control in a vehicle, namely, a purple Suzuki Vitara, bearing license plate number CGM 305, in violation of Title 14 V I C § 2253(e) (UNAUTHORIZED POSSESSION OF A FIREARM IN A VEHICLE)

Count Three DANNY DELERME, when not authorized by law, did possess firearm ammunition, to wit twelve (12) live 9mm caliber rounds, in violation of Title 14 V I C § 2256(a) (POSSESSION OF AMMUNITION)

(Information )

1[ 3 A copy of Officer Walcott‘s February 20 2020 affidavit for securing an arrest warrant for

Defendant was filed with the information In his affidavit, Officer Walcott essentially stated (i)

On February 4, 2020, around 2 35 p m , Officer Walcott received a tip that the tipster while in the

locker room at the refinery located at Lime Tree Bay Terminal, St Croix, U 8 Virgin Islands, he

observed Defendant his coworker, pull out a black firearm from his waist inside his overall and

place the firearm in his black backpack (Walcott Aff 1] 4A) (ii) Officer Walcott contacted the

security supervisor of the refinery and advised them of the situation (Walcott Aff fl 48), (iii) The

security supervisor advised Officer Walcott that he would look into this matter and that Defendant

was scheduled to finish work at 4 30p m and exits the refinery at Gate #4 (Walcott Aff 1] 43);

(iv) A firearm record check was conducted, and the records indicated that Defendant does not have

a license to possess a firearm or ammunition in the U S Virgin Islands (Walcott Aff 1| 4C), (v)

That afternoon, Officer Walcott and several other officers, including Sergeant Aldemar Santos

(hereinafter ‘ Sergeant Santos ) waited by Gate #4 for Defendant to exit the refinery (Walcott

Aff 1! 4D); (vi) Officer Walcott is familiar with Defendant and observed Defendant walking across

People ofthe V] v Delerme fififiigncdirflsgpinion and Order 2023 v1 SUPER ii Page 3 of 17 the street (Walcott Aff 1] 4D) (vii) Sergeant Santos approached Defendant advised him of the

reason of their presence, and asked Defendant if he had a license to carry a firearm in the U S

Virgin Islands, to which Defendant said no (Walcott Aff 1! 4D); (viii) Defendant consented to a

search of his person and a search was conducted of Defendant’s person and no firearm was found

(Walcott Aff 1] 413) (ix) Defendant did not consent to a search of his backpack (Walcott Aff 1]

4E)' (x) Sergeant Santos advised Defendant that the backpack would be confiscated while they

secure a search warrant to search the backpack to determine whether the backpack contains a

firearm (Walcott Aff 1] 4E); (xi) Sergeant Santos provided Defendant with a property receipt

which Defendant signed releasing the backpack to be held for evidence (Walcott Aff 1] 4F) (xii)

Sergeant Santos placed the backpack into a secured locker in the Police Operations building in

Frederiksted to be held pending receipt of the search warrant (Walcott Aff 11 4F); (xiii) On

February 7, 2020, Officer Walcott secured a search warrant and returned to the locker to execute

a search of the backpack (Walcott Aff 1] 4F); (xiv) Around 2 55 p m , Detective Melissa Banuelos

(hereinafter ‘ Detective Banuelos ’) executed the search of the backpack which revealed a black

firearm inside of a black holster (Walcott Aff 1] 4G); (xv) Detective Banuelos advised Officer

Walcott that the firearm was a black Taurus 9mm Caliber Mode] 02C serial #TLR98160 and

attached to the firearm was a laser light and twelve (12) live 9mm caliber rounds inside the

magazine that was inserted into firearm ” (Walcott Aff 1] 4G); and (xvi) The firearm recovered

from Defendant’s backpack was test fired and proven to be an operable firearm and that the

ammunition was live (Walcott Aff 1} 4H )

1| 4 On February 20, 2020, Officer Walcott, using the evidence obtained from Defendant s

backpack as outlined above in his affidavit to secure an arrest warrant, prepared another affidavit

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to secure a search warrant for Defendant’s residence at No 23 Constitution Hill, St Croix, U S

Virgin Islands (hereinafier “Residence”) and a search warrant for Defendant s 1999 Suzuki Vitara

(hereinafier ‘ Vehicle ) ' Defendant’s Residence and Vehicle were subsequently searched pursuant

to the search warrants issued therefor

1| 5 On September 15, 2022, Defendant filed a motion to suppress The People subsequently

filed an opposition thereto

1| 6 On November 30, 2022, this matter came before the Court for a suppression hearing At

the suppression hearing, the Court inquired about the lawfulness of the seizure of the backpack

and allowed counsel to brief the issue As of the date of this Memorandum Opinion and Order, the

People have not filed anything in response to the Court’s inquiry about the lawfulness ofthe seizure

of the backpack

STANDARD OF REVIEW

11 7 “The Fourth Amendment protects persons from ‘unreasonable searches and seizures ’7

People of the V I v Looby 68 VI 683 694 (V 1 2016) To conduct a valid search under the

Fourth Amendment, generally a judge or magistrate “must issue a warrant upon a finding of

probable cause that describes, with particularity, both the place to be searched and the persons or

things to be seized ’ [d Searches conducted without prior approval by judge or magistrate, are

per se unreasonable under the Fourth Amendment subject only to a few specifically established

and well delineated exceptions Id (internal quotations omitted) Furthermore, as to seizures, the

' See mfi a, footnote 4 7 The Fourth Amendment is applicable in the Virgin Islands pursuant to § 3 of the Revised Organic Act of 1954 People ofthe V I 1 Glasford 2022 VI LEXIS 40 at *10 (V I Super Ct Apr 19 2022) (citing People ofthe V I \ Armstrong 64 V1 528 530 n 1 (VI 2016) (citing Revised Organic Act of 1954 § 3 48 U S C § 1561 reprinted m VI CODE ANN Historical Documents Organic Acts and US Constitution at 87 88 (1995 & Supp 2013) (preceding VI CODE ANN tit 1))

People ofthe V] i Delerme SX 2020 CR 054 I Memorandum Opinion and Order 2023 VI SUPER I Page 5 of 17

Fourth Amendment ‘applies to all seizures of the person, including seizures that involve only a

briefdetention short of traditional arrest Blyden v People ofthe V I 53 V I 637 647 (V I 2010)

(citing Brown v Texas, 443 U S 47 50 (1979) (internal quotations omitted»

118 “Although the burden of proving that a search or seizure was unlawfiJl normally rests

with the defendant, when the police conduct a search or seizure without a warrant, the burden

shifi‘s to the government to prove exigent circumstances or another exception to the warrant

requirement ’ Nzcholas v People ofthe V I 56 V I 718, 738 (V I 2012) (citations omitted), see

Armstrong, 64 V1 at 537 (“Although ordinarily it is the defendant who bears the burden of

proving that evidence should be suppressed, this is not the case if a defendant has moved

to suppress evidence on grounds that it was obtained without a warrant in violation of the Fourth

Amendment In such cases, although it is the defendant who has made the motion, it is the

prosecution that bears the burden of proving that the warrantless search was reasonable ) Any

evidence derived from a Fourth Amendment violation must be excluded from trial as ‘ fruit of the

poisonous tree Blyden 53 V l at 650 (citing Wong v US 371 U S 471 488 (1963))

DISCUSSION

‘1 9 In his motion to suppress ‘ Defendant moved to suppress the black backpack and all of its

contents including the black Taurus 9mm Caliber Model 02C serial #TLR98160 and the

magazine with twelve (12) live 9mm caliber rounds, because they were obtained without a warrant

in violation of the Fourth Amendment (Motion) Defendant also moved to suppress all items

obtained pursuant to the search warrants for his Residence and Vehicle, including the 357 Mag

3 The following exhibits were attached to Defendant s motion Exhibit 1 photos of a black backpack Exhibit 2 Affidavit of Officer Walcott for securing a search warrant for a black backpack dated February 6 2020 Exhibit 3 search warrant for a black backpack date February 7 2020 and eenified on Pebruary 14, 2020 Exhibit 4 photos of a black firearm and ammunitions; and Exhibit 5 crime scene evidence report of the search of Defendant 8 Residence

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Winchester live round, silver, recovered from his Residence, because they are the fruit of the

poisonous tree (Id ) Defendant made the following assertions in support of his argument (i) ‘ The

Police lacked reasonable suspicion to believe that [Defendant’s] backpack was evidence of a

crime ’ to wit, ‘ There is nothing unusual or incriminating for an employee at Limetree or anyone

to be carrying a backpack ’ and “[it] is not see through and there was nothing to suggest that it

contained evidence of a crime ’ (Id , at 6); (ii) “[T]here was nothing immediately apparent about

[Defendant’s] backpack that made it incriminating in character ’ so the plain view doctrine does

not apply (Id ), (iii) “The Government had over two (2) hours to obtain a telephonic or standard

search warrant to search [Defendant]” and “[t]hey failed to do so, ’ which ‘ severely undercuts a

government claim of exigent circumstances ’ (Id , at 7); (iv) The firearm obtained as the result of

the illegal search of Defendant’s backpack was used to obtain a search warrant for Defendant’s

Residence and Vehicle, and thus, anything obtained from the search of his residence and vehicle

are ‘ fruit of an illegal search and must be suppressed ’ (Id )

1] 10 In their opposition,4 the People argued that the Court should deny the motion to suppress

because the seizure of Defendant s backpack was lawful, the search warrant for Defendant s

backpack was valid, and the subsequent search warrant for Defendant’s Residence and Vehicle

was also valid (Opp 4 ) The People made the following assertions in support of their argument

(i) The seizure of the Defendant s backpack in this case is supported by the totality of the

circumstances and facts known to the officers at the time of the seizure, recognizing that officers

may use their own training and experience as well as the observations of other officers in

4 The following exhibits were attached to the People’s motion Exhibit 1 Affidavit of Officer Walcott for securing a search warrant for a black backpack dated February 6 2020‘ and Exhibit 2 Affidavit of Officer Walcott for securing search warrants for Defendant 3 Residence and Vehicle, dated February 20, 2020

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concluding whether reasonable suspicion or probable cause exists ’5 (Id , at 2 3); (ii) ‘ [B]ased on

the totality of the circumstances, reasonable suspicion existed that criminal activity was afoot, and

an investigatory stop and inquiry was warranted ” (Id, at 4), (iii) The admission by the Defendant

that he did not have a license to carry a firearm in the U S Virgin Islands ‘in addition to

information already reported to law enforcement provided probable cause to believe an unlicensed

firearm was located inside the Defendant’s backpack ’ (Id ); (iv) “Based on the totality of the

circumstances and information known to the officers at this time, the Defendant’s backpack was

seized by law enforcement pending application to a judicial officer for a valid search warrant ”

(Id ), (v) ‘ A search warrant specific to the backpack was secured from Magistrate Judge Miguel

Camacho on February 7, 2022, and execution of said warrant resulted in recovery of one (1) black

Taurus model G2C 9mm caliber firearm [serial number TLR98160], one (1) firearm magazine

containing twelve (12) live 9mm rounds; one (1) laser light; and one (1) black firearm holster and

‘ [b]ased on this evidence an additional search warrant was secured from Magistrate Judge

Camacho on February 21, 2020, specific to the Defendant’s [Residence], and execution of this

search warrant resulted in seizure of one (1) live 357 caliber round (Id at 4 5); (v) “The

backpack was lawfully seized because law enforcement reasonably believed the item contained

evidence of criminal activity and exigent circumstances supported by probable cause existed to

support the seizure’ to wit, ‘ [n this case, the Defendant possessed a highly mobile backpack and

the seizure was justified because the firearm could be easily removed, destroyed, or relocated by

5 The People referenced United States 1 An Ile 534 U S 266 277 (2002)

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the Defendant but for the seizure pending a search warrant ’6 (Id , at 5 6); (vi) “Law enforcement

then secured and executed the search warrant within a reasonable time period, diligently conducted

their investigation, and utilized minimally intrusive procedures to obtain the evidence ’ and the

Defendant was not unduly prejudiced by the seizure and securing a valid search warrant ” (Id , at

4 5), (vii) [T]he seizure of the backpack is analogous to seizure of a residence to prevent

destruction of evidence while obtaining a warrant because law enforcement had probable cause to

believe a firearm was in the readin mobile backpack and thus exigent circumstances warranted

the seizure (Id , at 6); (viii) “1f the Court finds the initial search warrant was not timely secured,

the Court should not suppress the statements and tangible evidence recovered because law

enforcement acted in good faith when they executed the search warrant ”7 (Id , at 7); (ix) “Courts

recognize ‘four limited circumstances’ in which a police officer's reliance on a warrant will not

be considered objectively reasonable [and] none of the four limited circumstances exist in the

facts before the Court ’8 (Id )

A Analysis

11 11 The Court must note at the outset that Defendant did not dispute the lawfulness of the

Term» stop and the Terrjy frisk by patting him down 9 Instead, Defendant disputed the lawfulness

“The People referenced (1) US 1 Willtams 365 F 3d 399 406 (5"‘ Cir 2004)‘ US \ Bulgaid 675 F 3d 1029 1034 35 (7‘ll Cir 2012) Smitht Ohio 494US 541 542043 (1990) Knln La 536 US 635 638 (2002) US 1 8101171 701 F 3d 120 126 27 (4th Cir 2012) Illinowi McAIlhm 531 U S 329 337 7 The People referenced People ofthe V I 1 John 654 F 3d 412 417 18 (201 1) (quoting U S 1 Leon 468 U S 897 922 (1984)) 3 The People referenced John, 654 F 3d at 417 18 ( the ‘four limited circumstances in which a police officer's reliance on a warrant will not be considered ‘objectively reasonable 1) where the magistrate judge issued the warrant in reliance on a deliberately or recklessly false affidavit; 2) where the magistrate judge abandoned his or her judicial role and failed to perform his or her neutral and detached function; 3) where the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable or 4) where the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized’ ) 9 Although an officer is generally permitted to search a person or place only upon a finding of probable cause, the United States Supreme Court has determined that ‘in appropriate circumstances the Fourth Amendment allows a

People ofthe V I v Delerme SX 2020 CR 054 Memorandum Opinion and Order 2023 VI SUPER it} Page 9 of 17

of the seizure of his backpack and the lawfiilness of the subsequent search of his Residence and

Vehicle In summary, Defendant essentially argued that the Court should suppress all the evidence

recovered from his backpack because the backpack was unlawfully seized without a warrant in

violation of the Fourth Amendment, and given that the evidence recovered from the backpack was

used as the basis to obtain a search warrant for his Residence and Vehicle, Defendant argued that

the Court should also suppress all the evidence seized from his Residence and Vehicle In response,

properly limited search or seizure on facts that do not constitute probable cause to anest or to search for contraband or evidence of crime Looby 68 V I at 694; see Blyden 53 V I at 647 (quoting Blown 443 U S at 50 (alteration in original) (internal quotations omitted) “[Wihenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person and the Fourth Amendment requires that the seizure be ‘reasonable ’” Blyden 53 V I at 647 In Blyden the Virgin Islands Supreme Court pointed to the seminal case of Tel 13/ i Ohio 392 U S l (1968), as an example of such appropriate circumstances when a “a police officer may stop a suspect on the street and conduct a limited search, i e a frisk of the suspect without probable cause ’ Blyden, 53 V I at 648; see Looby 68 V I at 685 [n Ter 1y the United States Supreme Court held that a “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him” and that ‘ [s]uch a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken 392 U S at 30 31 In other words, the reasonable suspicion that an individual is engaged in criminal activity ‘allows an officer to briefly detain a person to determine if a crime has been committed or is about to be committed Emanuel i Ptoplc 011/“ V I 68 VI 666 673 (V I 2018) (citing Gumbs 64 VI at 508 (citing Teny 392 U S at 30)) The Virgin Islands Supreme Court explained To have reasonable suspicion an officer must have specific and articulable facts under the totality of the circumstances that the person stopped is or was involved in criminal activity United States 1 Jacobsen, 391 F 3d 904 906 (8th Cir 2004) This is a lesser standard than probable cause but requires more than an officers mere hunch United State.“ Monsii ms 848 F 3d 353 357 (5th Cir 2017) To find that reasonable suspicion existed to justify a stop, a court must examine the ‘ totality of the circumstances” in the situation at hand, in light of the individual officers‘ own training and experience and should uphold the stop only if it finds that the detaining officer ha[d] a ‘particularized and objective basis for suspecting legal wrongdoing ’ Lmted Staten Arum 534 U S 266 273 122 S Ct 744 151 L Ed 2d 740 (2002) (quoting UnitedSIaIeSI Cone. 449 U S 411 41718 101 S Ct 690 66 L Ed 2d 621 (1981)) Emanuel 68 V l at 673 see Loobt 68 V I at 693 ‘A Ten) ’ stop simply put, is an investigatory process which usually entails a vehicular stop, but encompasses any attempt by a law enforcement officer to literally stop an individual to question the person Somme, 71 V I 82 (V I Super Ct July8 2019) (quoting Peoplei Blake 65 VI 13 16 (VI Super Ct 2012) (italics added» The presence of reasonable suspicion for a lawful Terry stop does not automatically render the subsequent Terry frisk lawful, and thus, the validity of the Term frisk, like an initial Tun stop is considered independently under the totality of the circumstances Looby, 68 V I at 695

People 0fthe V I v Deletme

[Stiirfliighcdingsgpinion and Order 2023 VI SUPER I E] Page 10 of 17

the People essentially argued that the seizure of the backpack was lawful because the officers

‘ reasonably believed the item contained evidence of criminal activity and exigent circumstances

supported by probable cause existed to support the seizure” and that even if there was any defect

to the search warrant obtained for Defendant’s Residence and Vehicle, the evidence recovered

should not be suppressed because the officers acted in good faith when they executed the search

warrant (Opp) Given that Defendant moved to suppress the evidence on grounds that the

backpack was seized without a warrant in violation of the Fourth Amendment, and it is not in

dispute that the backpack was seized without a warrant, the People bear the burden to demonstrate

that the seizure of the backpack was permissible under an exception to the warrant requirement of

the Fourth Amendment See Armstrong 64 V I at 537

l Seizure of Defendant’s Backpack

1112 “The Fourth Amendment prohibits unreasonable searches and seizures, and ‘searches

conducted outside the judicial process, without prior approval by judge or magistrate, are per

se unreasonable under the Fourth Amendment subject only to a few specifically established and

well delineated exceptions ”’ Nicholas 56 V I at 738 More specifically, “[t]he Fourth

Amendment protects people, not places, and wherever an individual may harbor a reasonable

expectation of privacy, he is entitled to be free from unreasonable governmental intrusion Tertfy

392 U S at 9 (citations omitted)

1] 13 In this instance, Defendant had a reasonable expectation of privacy to his personal items

such as his backpack Consequently, a warrantless seizure of Defendant’s backpack infringed upon

Defendant 3 Fourth Amendment rights and must be justified by an exception to the warrant

requirement

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a Exception to the Warrant Requirement

1] 14 Of the various exceptions to the warrant requirement which have been recognized by the

United States Supreme Court, the People in this matter relied upon the exigent circumstances

exception due to the possibility that evidence may be removed or destroyed “Under

the exigent circumstances exception, 3 warrantless search is permissible only when there are

both probable cause and exigent circumstances ” Gov’t of the V.[ v Fabzam Ogno, 20 V I 404,

409 10(VI Terr Ct March 29 1984)(citing Wardenv Hayden 387 U S 294 (1967) Arkansas

v Sanders 442 U S 753 (1979)) see Szmmonds v People 53 VI 549 559 60 (VI 2010) The

possibility that evidence may be removed or destroyed has been recognized as an example of

exigent circumstances Szmmonds, 53 VI at 560 see also People of the VJ v Schulterbrandt,

2016 V I LEXIS 121 at *15 (V I Super Ct Aug 22 2016) ( Furthermore [e]xigent

circumstances exist when officers are in hot pursuit of a fleeing suspect, when they ‘reasonably

believe that someone is in imminent danger ’ or when they reasonably believe they must act “to

prevent the imminent destruction of evidence ’) ‘ A search justified by the exigency doctrine

‘must be strictly circumscribed by the exigencies which justify its initiation Thomas v People

of the VI 63 VI 595 606 (V I 2015) (quoting Mmoey v Arz-0na 437 U S 385 393

(quoting Terry, 392 U S l 25 26) ‘Here, the prevailing consideration is imminence the

existence of a true emergency People ofthe V] v Schulterbrandt, 2016 V I LEXIS 121, *15

(V I Super Ct Aug 22 2016) In other words when the exigent circumstance loses its

imminence the officers also lose the justification supporting a warrantless intrusion of privacy

‘ 15 In this instance Officer Walcott received the tip around 2 35 p m , and since it was not

until later that afiemoon around 4 30 p m that Defendant s backpack was seized, there was no

People ofthe V] t Dc lame

migiglfilfilgsgpinion and Order 2023 VI SUPER I I Page 12 of [7

exigent or emergency situation that would justify the officers’ warrantless intrusion of Defendant’s

privacy at the time of the seizure To put it another way, the exigent circumstance had lost its

imminence with the passage of time when the officers waited approximately two hours after

receiving the tip to seize Defendant s backpack See Schulterbrandt, 2016 V I LEXIS 121, at *15

Thus, the warrantless seizure was not justified by the exigent circumstances exception,” and

therefore, the seizure of Defendant s backpack was unlawful

2 Search of Defendant’s Backpack

1] 16 The Court must next address whether the search of Defendant s backpack, pursuant to a

search warrant obtained after the unlawfiil seizure was lawfill Defendant did not challenge the

validity of the search warrant for the backpack Rather Defendant argued that the illegal seizure

of his backpack prior to obtaining a search warrant violated his Fourth Amendment rights and, as

a result of that, all evidence subsequently recovered from his backpack should be suppressed

1] 17 As noted above, while Defendant s backpack was seized on February 4, 2020, the search

warrant for the backpack was not obtained until February 7, 2020 ” In their motion, the People

did not address the reason for the officer 3 failure to obtain a warrant prior to the seizure or the

officer’s three day delay in obtaining a search warrant after the seizure, instead, the People simply

asserted, without any supporting authority, that the search warrant was obtained and executed

within a reasonable time Furthermore, the People also asserted that the seizure of Defendant’s

backpack ‘ is analogous to seizure of a residence to prevent destruction of evidence while obtaining

a warrant because law enforcement had probable cause to believe a firearm was in the readily

'0 Due to the Court 5 finding that no exigent circumstance was present the Court need not address the issue of whether probable cause existed at the time Defendant’s backpack was seized " The search warrant for the backpack was obtained based on the affidavit of Officer Walcott dated February 6 2020

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mobile backpack and thus exigent circumstances warranted the seizure” and “[i]f the Court finds

the initial search warrant was not timely secured, the Court should not suppress the statements and

tangible evidence recovered because law enforcement acted in good faith when they executed the

search warrant ” (Opp 6 7 ) The Court finds the People 5 argument unpersuasive First, as to the

People’s analogy, as noted above, the Court finds that no exigent circumstance existed at the time

of the seizure Second, as to the People’s good faith argument, accepting the People’s reasoning

here would render meaningless the Fourth Amendment’s protections against unreasonable

searches and seizures to wit, by allowing the good faith exception for the unlawful seizure of the

backpack would defeat the purpose of the exclusionary rule, for it would remove the incentive for

the police to follow the proper protocol for a lawful seizure and circumvent the exclusionary rule

by simply obtaining a search warrant afier the unlawfiJl seizure and relying on the good faith

exception to render the evidence recovered admissible See Herring v U S , 555 U S 135, 144

(2009) (“As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or

grossly negligent conduct, or in some circumstances recurring or systemic negligence ”) '2 As

" In Herring, the United States Supreme Court addressed the “good faith exception to the exclusionary rule that it had previously established in L S 1 Leon 468 U S 897 (1984) In Hemng the United States Supreme Court explained 1 The fact that a Fourth Amendment violation occurred 1e that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies llltnms v Gates, 462 U S 213, 223, 103 S Ct 2317, 76 L Ed 2d 527 (1983) Indeed exclusion has always been our last resort, not our first impulse Hudson v Mulligan 547 U S 586 591 126 S Ct 2159 165 L Ed 2d 56 (2006) and our precedents establish important principles that constrain application of the exclusionary rule First, the exclusionary rule is not an individual right and applies only where it "‘resu1t[s] in appreciable deterrence ‘Leon, supm at 909 104 S Ct 3405 82 L Ed 2d 677 (quoting UntredSIates v Jams 428 U S 433 454 965 Ct 3021 49 1. Ed 2d 1046(1976)) We have repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation Leon supm at 905 906, 104 S Ct 3405, 82 L Ed 2d 677 Etans supm at 13 14 115 S Ct 1185 131 L Ed 2d 34 Pennsyhama Bd ofProbaIzon and Patolev Scott 524 U S 357 363 118 S Ct 2014 141 L Ed 2d 344 (1998) Instead we have focused on the efficacy of the rule in deterring Fourth Amendment violations in the future See Calandm, supra, at 347 355 94 S Ct 613 38 L Ed 2d 561 Stonev Powell 428 US 465 486 96 S Ct 3037 49 L Ed 2d 1067 (1976)

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In addition, the benefits of deterrence must outweigh the costs Leon, supra at 910, 104 S Ct 3405 82 L Ed 2d 677 "We have never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence Scot! supla at 368 118 S Ct 2014 141 L Ed 2d 344 [T]o the extent that application of the exclusionary rule could provide some incremental deterrent that possible benefit must be weighed against [its] substantial social costs [limozs v Km”, 480 U S 340 352 353, 107 S Ct 1160 94 L Ed 2d 364 (1987) (internal quotation marks omitted) The principal cost of applying the rule is of course, letting guilty and possibly dangerous defendants go free something that "offends basic concepts of the criminal justice system Leon supra at 908, 104 S Ct 3405 82 L Ed 2d 677 '[T]he rules costly toll upon truth seeking and law enforcement objectives presents a high obstacle for those urging [its] application Scott supm at 364 365 118 S Ct 2014 141 L Ed 2d 344 (intemalquotation marks omitted) see also United States v Haiens 446 U S 620 626 627 100 S Ct 1912 64 L Ed 2d 559 (1980) United Statesv Payner 447US 727 734 1008 Ct 2439 65 L Ed 2d 468(1980) These principles are reflected in the holding of Leon When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted " in objectively reasonable reliance" on the subsequently invalidated search warrant 468 U S at 922 104 S Ct 3405 82 L Ed 2d 677 We (perhaps confusingly) called this objectively reasonable reliance good faith [bid , at 922 n 23 104 S Ct 3405 82 L Ed 2d 677 In acompanion case Massachusettsv Sheppmd 468 U S 981 104 S Ct 3424 82 L Ed 2d 737 (1984) we held that the exclusionary rule did not apply when a warrant was invalid because a judge forgot to make clerical corrections to it Id at 991 104 S Ct 3424 82 L Ed 2d 737 Shortly thereafter we extended these holdings to warrantless administrative searches performed in good faith reliance on a statute later declared unconstitutional Km” supra at 349 350 107 S Ct 1160, 94 L Ed 2d 364 Finally in Bums 514U S 1 115 S Ct 1185 131 L Ed 2d 34 we applied this good faith rule to police who reasonably relied on mistaken information in a court's database that an arrest warrant was outstanding We held that a mistake made by a judicial employee could not give rise to exclusion for three reasons The exclusionary rule was crafted to curb police rather than judicial misconduct court employees were unlikely to try to subvert the Fourth Amendment; and "most important, there [was] no basis for believing that application of the exclusionary rule in [those] circumstances" would have any significant effect in deterring the errors Id at 15 115 S Ct 1185, 131 L Ed 2d 34 Evans leftunresolved whether the evidence should be suppressed if police personnel were responsible for the error," an issue not argued by the State in that case «I at 16 n5 115 S Ct 1185 131 L Ed 2d 34 but one that we now confront 2 The extent to which the exclusionary rule is Justified by these deterrence principles varies with the culpability of the law enforcement conduct As we said in Leon, "an assessment of the flagrancy of the police misconduct constitutes an important step in the calculus" of applying the exclusionary rule 468 U S , at 91 1, 104 S Ct 3405 82 L Ed 2d 677 Similarly in Km” we elaborated that evidence should be suppressed only if it can be said that the law enforcement officer had knowledge or may properly be charged with knowledge that the search was unconstitutional under the Fourth Amendment 480 U S at 348 349, 107 S Ct 1160 94L Ed 2d 364 (quoting UmredSmIes v Peltm 422 US 531 542 95 S Ct 2313 45 L Ed 2d 374 (1975)) Anticipating the good faith exception to the exclusionary rule, Judge Friendly wrote that [t]he beneficent aim of the exclusionary rule to deter police misconduct can be sufficiently accomplished by a practice outlawing evidence obtained by flagrant or deliberate violation of rights " The Bill of Rights as a Code of Criminal Procedure, 53 Calif L Rev 929, 953 (1965) (footnotes omitted), see also Brown v IIImozs 422 US 590 610 611 95 S Ct 2254 45 L Ed 2d 416 (1975) (Powell J concurring in part)( [T]he deterrent value of the exclusionary rule is most likely to be effective" when "official conduct was flagrantly abusive of Fourth Amendment rights ) Indeed, the abuses that gave rise to the exclusionary rule featured intentional conduct that was patently unconstitutional In Weeks 232 U S 383 34 S Ct 341 58 L Ed 652 T D 1964 a foundational exclusionary rule case the officers had broken into the defendants home (using a key shown to them by a neighbor), confiscated incriminating papers then retumed again with a U S Marshal to confiscate even more 1d at 386 34 S Ct 341 58 L Ed 652 Not only did they have no search warrant which the Court

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held was required, but they could not have gotten one had they tried They were so lacking in sworn and particularized information that "not even an order of court would have justified such procedure " Id , at 393 394 345 Ct 341 58L Ed 652 Siltetthorne Lumber Co v (mfedStates 251 US 385 408 Ct 182 64 L Ed 319 T D 2984, 17 Ohio L Rep 514 (1920) on which petitioner repeatedly relies was similar federal officials "without a shadow of authority" went to the defendants' office and "made a clean sweep" of every paper they could find Id at 390 408 Ct 182 64 L Ed 319 Even the Government seemed to acknowledge that the seizure was an outrage 1d at 391 40 S Ct 182 64 L Ed 319 Equally flagrant conduct was at issue in Mappv Ohm 367 U S 643 81 S Ct 1684 6 L Ed 2d 1081 86 Ohio Law Abs 513(1961) which overruled Wolfv Colorado 338US 25 698 Ct 1359 93 L Ed 1782 (1949), and extended the exclusionary rule to the States Officers forced open a door to Ms Mapp's house, kept her lawyer from entering, brandished what the court concluded was a false warrant, then forced her into handcuffs and canvassed the house for obscenity 367 U S at 644 645 81 S Ct 1684 6 L Ed 2d 1081 See Friendly, supra, at 953, and n 127 ("[T]he situation in Mapp" featured a "flagrant or deliberate violation of rights") An error that arises from nonrecurring and attenuated negligence is thus far removed from the core concerns that led us to adopt the rule in the first place And in fact since Leon, we have never applied the rule to exclude evidence obtained in violation of the Fourth Amendment, where the police conduct was no more intentional or culpable than this 3 To trigger the exclusionary rule police conduct must be sufficiently deliberate that exclusion can meaningfully deter 1t and sufficiently culpable that such deterrence is worth the price paid by the justice system As laid out in our cases the exclusionary rule serves to deter deliberate reckless, or grossly negligent conduct or in some circumstances recurring or systemic negligence The error in this case does not rise to that level Our decision in Fumlts v Delaware 438 U S 154 98 S Ct 2674 57 L Ed 2d 667 (1978) provides an analogy Cf Leon supm at914 104 S Ct 3405 82 L Ed 2d 677 In Finals we held that police negligence in obtaining a wanant did not even rise to the level of a Fourth Amendment violation, let alone meet the more stringent test for triggering the exclusionary rule We held that the Constitution allowed defendants, in some circumstances, “to challenge the truthfulness of factual statements made in an affidavit supporting the warrant even after the warrant had issued 438 US at 155 156 98 S Ct 2674 57 L Ed 2d 667 If those false statements were necessary to the Magistrate Judge's probable cause determination the warrant would be "voided " [bid But we did not find all false statements relevant "There must be allegations of deliberate falsehood or of reckless disregard for the truth," and "[a]llegations of negligence or innocent mistake are insufficient Id at 171 98 S Ct 2674 57L Ed 2d 667 Both this case and Franks concern false information provided by police Under Franks, negligent police miscommunications in the course of acquiring a warrant do not provide a basis to rescind a warrant and render a search or arrest invalid Here, the miscommunications occurred in a different context after the warrant had been issued and recalled but that fact should not require excluding the evidence obtained The pertinent analysis of deterrence and culpability is objective not an "inquiry into the subjective awareness of arresting officers, Reply Brief for Petitioner 4 5 See also post, at 157 n 7 172 L Ed 2d at 515 (Ginsburg J dissenting) We have already held that 'our good faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances Leon 468 U S at 922 n 23 104 S Ct 3405 82 L Ed 2d 677 These circumstances frequently include a particular officer‘s knowledge and experience, but that does not make the test any more subjective than the one for probable cause, which looks to an officer‘s knowledge and experience Ornelasv United States 517 U S 690 699 700 116 S Ct 1657 134 L Ed 2d911 (1996) but not his subjective intent Whren v Untied States 517 U S 806 812 813 1 16 S Ct 1769 135 L Ed 2d 89 (1996) 4 We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule In this case, however, the conduct at issue was not so objectively culpable as to require exclusion 1n Leon, we held that "the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of

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such the Court finds that the subsequent search of the unlawfully seized backpack pursuant to a

warrant obtained three days after the initial seizure was unlawfitl13 and that the evidence derived

from this Fourth Amendment violation must be excluded as “fruit of the poisonous tree ’ Blyden,

53 V I at 650

3 Search of Defendant’s Residence and Vehicle

1' 18 Given the Court’s finding that the evidence obtained from Defendant s backpack must be

excluded as fruit of the poisonous tree and given that it was used as the basis for the subsequent

exclusion " 468 U S at 922 104 S Ct 3405 82 L Ed 2d 677 The same is true when evidence is obtained in objectively reasonable reliance on a subsequently recalled warrant If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation We said as much in Leon, explaining that an officer could not "obtain a warrant on the basis of a 'bare bones' affidavit and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search ‘ Id , at 923 n 24 104 S Ct 3405 82 L Ed 2d 677 (citing Whiteleyv Walden Wyo Slate Penitentimy 401 U S 560 568 91 S Ct 1031 28 L Ed 2d 306 (1971)) Petitioners fears that our decision will cause police departments to deliberately keep their officers ignorant, Brief for Petitioner 37 39 are thus unfounded 555 U S at 140 46 '3 Interestingly, the People did not reference in their brief Bionne t Peoplt of the V! the case where the Virgin Islands Supreme Court held that evidence obtained pursuant to an authorized search warrant of the vehicle was admissible notwithstanding the illegality if any of the initial seizure of the vehicle 56 V1 207 220 21 (VI 2012) The Court nevertheiess finds it important to mention Browne here and point out the important factual differences which distinguish this case from Browne First, the evidence at issue here was obtained from an illegally seized backpack and not an illegally seized vehicle as in Browne In Browne, the Virgin Islands Supreme Court made it clear that their holding should not be read as sanctioning police conduct intended to hold a suspect‘s car without probable cause while the police attempt to gather additional information [and] [s]uch conduct would be a clear violation of the Fourth Amendment and that they ‘hold only that evidence obtained even from an illegally seized vehicle is not subject to the exclusionary rule when it was subsequently discovered pursuant to a validly issued warrant and free from any taint of an illegal seizure 56 V 1 at 221 n 11 Second the search warrant for the backpack was obtained three days after the seizure and not obtained several hours later as in Browne In Browne the Virgin Islands Supreme Court reasoned that “[i]f the VIPD had simply maintained their surveillance of Jeffreys car for several hours and impounded it after they had obtained the search warrant, the evidence in the vehicle would have been discovered and unquestionably admitted 56 V1 at 220 (citing See Segma 468 U S at 815 Gloxer 9 Fed Appx at 172) The surveillance of a backpack for three days would have been vastly differently not to mention, more difficult than the surveillance of a vehicle for several hours As such, the Conn finds B; owne s holding inapplicable in this instance The Court must clarify that this holding that evidence obtained pursuant to a search warrant obtained three days after the vehicle was unlawfully seized must be excluded is based on the facts of this case and that each case involving evidence obtained pursuant to a search warrant after an initial unlawful seizure should be examined on a case by case basis

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search warrant for Defendant 5 Residence and Vehicle, the Court finds that the evidence recovered

from Defendant’s Residence and Vehicle pursuant to said search warrant must also be excluded as

fruit of the poisonous tree Blyden, 53 V I at 650

CONCLUSION

Based on the foregoing it is hereby

ORDERED that Defendant s motion to suppress the black backpack and all of its contents,

including the black Taurus 9mm Caliber Model 02C serial #TLR98160 and the magazine with

twelve (12) live 9mm caliber rounds, and all items obtained pursuant to the search warrants for

Defendant’s Residence and Vehicle, including the 357 Mag Winchester live round, silver,

recovered from his Residence filed on September 15, 2022 is GRANTED

DONE and so ORDERED this HMday of April 2023

ATTEST 2 ém Tamara Charles HAROLD W L WILLOCKS Cle the Court Senior Sitting Judge of the Superior Court

By Wk ourt Clerk WI

Dated 3207’//‘gfléé

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix

People of the Virgin Islands v. Danny Case Number: SX-2020-CR-00054 Joel Delerme Charges: 14 V.I.C. 2253(a) - Possession Of An Unlicense Firearm 14 V.I.C. 2256(a) - Possession Or Sale Of Ammunition

NOTICE of ENTRY

of

Memorandum Opinion and Order To William A. Appleton, Jr. Jeffrey B. C. Moorhead, Esq. :

Please take notice that on April 24, 2023 a(n) Memorandum Opinion and Order dated April 24,2023 was/were entered by the Clerk in the above-titled matter.

Dated April 24, 2023 Tamara Charles :

Clerk of the Court

By:

Janeen Maranda Court Clerk II