People of the Virgin Islands v. D'Mahri Charles

• Court: Superior Court of The Virgin Islands
• Decided: March 16, 2023
• Docket: SX-2019-CR-329
• Status: Unpublished

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST CROIX PEOPLE OF THE VIRGIN ISLANDS

PLAINTIFF I SX 2019 CR 329 V

D MAHRI CHARLES I CITE AS 2023 VI SUPER 3 [A DEFENDANT —J

Appearances

William Appleton, 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 S Virgin Islands For D Malm Charles

MEMORANDUM OPINION AND ORDER

WILLOCKS, Senior Sitting Judge

1i 1 THIS MATTER is before the Court on Defendant Rasselah Caeser s (hereinaf ter ‘ Caeser”)' motion to suppress, filed on July 2 2020, in criminal case number SX 2019 CR 328, which was joined by Defendant D Mahri Charles (hereinafter ‘ Charles ) in this instant matter,

criminal case number SX 2019 CR 329 On August I 1 2020 the People of the Virgin Islands

(hereinafter “People”) filed its oppositions thereto

' There is a discrepancy between the spelling of Caeser in the information and Caeser’s filings to wit, the information spelled it as “Caeser while Caeser’s filings spelled it as ‘ Caesar The Court will use the spelling used in the information Caeser since that is the initiating document and the spelling of the name was never amended This matter was subsequently dismissed without prejudice against Caeser People ofthe VJ 1 Charles SX 2019 CR 329 Memorandum Opinion and Order 2023 VI SUPER h Page 2 of 21

BACKGROUND

fl2 On November 21, 2019, the Peopie filed a joint information against Caeser in case number

SX 2019 CR 328 and Charles in case number SX 2019 CR 329 based on the events that allegedly

took place on or about November 9 2019 as set forth in the affidavit of Police Officer Michael

Jules, Jr (hereinafter “Officer Jules ), dated November 20, 2019 2 The information charged both

Caeser and Charles with the following counts

Count One RESSELAH CHARLES and D MAHRI CHARLES did when not authorized by law, have, possess, bear, transport, or carry either actually or constructively, open or concealed a firearm in violation of Title 14 V I C § 2253(a) (UNAUTHORIZED POSSESSION OF A FIREARM)

Count Two RESSELAH CHARLES and D MAHRI CHARLES 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 silver Acura TL, beating license plate number CF] 632 in violation of Title 14 V I C § 2253(e) (UNAUTHORIZED POSSESSION OF A FIREARM IN A VEHICLE)

Count Three RESSELAH CHARLES and D MAHRI CHARLES when unauthorized by law, did, possess, bear, transport or carry, either open or concealed, on or about his person, or under his control in a vehicle, a firearm, within one thousand feet of a school, in violation of Title 14 V I C § 2253(1) (UNAUTHORIZED POSSESSION OF A FIREARM [N A VEHICLE WITHIN 1000 FEET OF A PLAYGROUND)

’ A copy of Officer Jules affidavit was filed with the information In his affidavit, Officer Jules essentially stated (i) On November 9 2019, Officer Jules and his partner were on saturated patrol walking in the vicinity of the cafeteria of the Central High School when they came upon a parked vehicle that Charles and Caeser were sitting in with odor of marijuana emitting from the vehicle (Jules Aff 1H] 2 3A 38 36) (ii) Charles was sitting in the driver 5 seat and Caeser was sitting in the front passenger 3 seat (Jules Aff 111] 3B, 30) (iii) Upon walking up to the vehicle Officer Jules observed a magazine with live ammunition on the floor near the driver 8 feet in plain view (Jules Aff ‘ 3A) (iv) Charles exited the vehicle (Jules Aff 1] 33) (v) The defendants were placed in handcuffs and a search of the vehicle was conducted (Jules Aff ' 3C) (vi) The following items were recovered from the search a firearm under the driver 5 seat a half burnt marijuana cigarette from the compartment below the radio a vial containing green leafy substances and several empty vial from a black backpack that belongs to Charles (Jules Aff 7 3C) (vii) The officers inquired whether the defendants possessed a license to carry firearm in the U S Virgin Islands and they said no (Jules Aff 1' 3H) (viii) The defendants were transported to the Wilbur H Francis Command Police Station (Jules Aff fl 3E) and (ix) The manjuana cigarette and the green leafy substances were field tested and both tested positive for marijuana (Jules Aff ‘ 31) People ofthe V I v Charles 5X 2019 CR 329 Memorandum Opinion and Order 2023 VI SUPER I [A Page 3 of 21

Count Four RESSELAH CHARLES and D MAHRI CHARLES when not authorized by law, did possess firearm ammunition, in violation of Title 14 V I C § 2256(a) (POSSESSION OF AMMUNITION)

Count Five RESSELAH CHARLES and D MAHRI CHARLES when unauthorized by law, did, possess, bear, transport, or carry, either open or concealed a firearm, loaded or unloaded, with altered or obliterated identification marks in a public place where persons are gathered in violation of Title 23 V I C § 481(b) (ALTERATION OF IDENTIFYING MARKS OF A WEAPON)

Count Six RESSELAH CHARLES and D MAHRI CHARLES used or possessed with intent to use, drug paraphernalia, for the purpose of packaging small qualities of controlled substances namely marijuana, in violation of Title 19 V I C § 630(a) and § 593(15)(l) (POSSESSION OF A DRUG PARAPHERNALIA)

(Information )

1] 3 On July 2, 2020, Caeser filed a motion to suppress On September 23 2020 Charles filed

a motion for joinder OfCaeser s motion to suppress The People subsequently filed their opposition

thereto

114 On March 17, 2021, this matter came before the Court for a suppression hearing The

People presented Officer Jules as a witness and the defendants did not present any witnesses At

the end of the suppression hearing, the Court granted Charles’ request to present arguments by

writing, which the People did not object

11 5 On April 12, 2021, the People filed a motion to dismiss this matter without prejudice

against Defendant Caeser, which the Court subsequently granted by an order entered on April 15,

2021 and this matter was dismissed without prejudice against Caeser

11 6 On September 17, 2021, Charles filed a post suppression hearing brief

‘1 7 As of the date of this Memorandum Opinion and Order the People has not filed a post

suppression hearing brief People ofthe V I I Charles SX 2019 CR 329 Memorandum Opinion and Order 2023 VI SUPER 3 SA Page 4 of 21

DISCUSSION

I Motion for Joinder

T, 8 It appears that this motion was never granted As such, the Court will grant nunc pro tune Defendant

Charles September 23, 2020 motion for joinder

[I Motion to Amend

19 At the beginning of the suppression hearing, the People orally moved to amend the

infomation as follows (i) to include the description and/or identification of the firearm to Counts

I, II, III, IV, and V; and (ii) to include the description and or identification of the drug paraphernalia

to Count VI Neither Caeser nor Charles objected to the People orally moving to amend the

infomation Thus the Court ordered the People to proceed with its motion, and the People stated

the proposed amendment for each count 3 Thereafier, the Court granted the People 3 motion and

ordered the People to file the written amended infomation within five days from the date of the

hearing As of the date of this Memorandum Opinion and Order, the People has not filed a copy

of the amended information as ordered The Court will order the People to file the written amended

information again on an expedited basis

3 The People proposed the following amendments Count I Add, after ‘ a firearm,” to wit, 21 Taurus model PT 145 PRO 45, semiautomatic pistol Count II Add, after open on concealed a fireann,’ namely, Taurus model PT 145 PRO 45, semiautomatic pistol under his control in a vehicle Count III Name the firearm as Taurus model PT 145 PRO 45 semiautomatic pistol Count IV Add 45 auto cartridges loaded with Hydra Shok bullets Count V Add a Taurus model, PT 145 PRO 45 semiautomatic pistol Count VI Name the drug paraphernalia as five small vials (HrgTr162025171201820 251914) People ofthe V I 1 Charles

fififiiflnfifilfizgpinion and Order 2023 VI SUPER I SA Page 5 of 21

III Motion to Suppress

1] 10 [n his motion to suppress which was joined by Charles Caeser argued that the evidence

and statements were obtained as the result of the illegal search on November 9, 2019 and should

be suppressed (Memo ) Caeser made the following assertions in support of his argument (i) He

‘ denie[d] that anyone ever consented to the search of the car without a warrant, and that there was

no reasonable suspicion or probable cause to search and seize him under the facts of the case ”

(Id , at 3); (ii) The Fourth Amendment protects against unreasonable search and seizure by

government (Id , 3 5), and (iii) ‘ In this case, [Officer Jules] articulated no reason establishing the

probable cause to seize Defendant Caeser ’ and ‘ failed to articulate even a reasonable suspicion to

search the vehicle or Defendant Caeser ’ (1d , at 5 )

1] 11 In its opposition the People argued that the Court should deny the motion to suppress

(Opp 4 ) The People made the following assertions in support of its argument (i) “[A]long with

the reasonable suspicion that there may be marijuana in the vehicle and the magazine of the

vehicle being in plain view the search of the vehicle in this case was lawfixl and the evidence

found in the lawful search of the vehicle should not be suppressed ” (Id ); (ii) “The V I Supreme

Court has determined that since possession ofmarijuana is still unlawful in the Tern'tory, marijuana

is contraband and as such, is subject to seizure by law enforcement, regardless ofamount 4 (Id ),

(iii) [R]easonable suspicion the predicate for a stop and fiisk does not depend on whether the

People prove beyond a reasonable doubt that a defendant is ‘guilty instead reasonable suspicion

is a matter of constitutional and evidentiary concern turning no whether an officer reasonably

4 The People referenced People ofthe V I v 1.001)) 68 V I 683 694 (V I 2018) People ofthe V I 1 Charles SK 2019 CR 329 Memorandum Opinion and Order 2023 VI SUPER 1 US Page 12 of 21

marijuana remains unlawfiJl in this Territory, officers may establish reasonable suspicion to

conduct a Terry stop if the officer relied upon his or her experience and training to detect the

presence of that contraband ’1 68 V I at 698 Based on the totality of the circumstances the Court

finds that an officer trained to identify the odor of marijuana and experienced in making drug

arrests possessed reasonable suspicion to approach and conduct an investigatory stop, or Terry

stop, afier the officer smelled marijuana As such the Court finds that the Terry stop was [awful

and pennissible under the Fourth Amendment

(Hr g Tr 10 1 3) and (ix) The two male individuals were the only individuals in the parking lot at the time they were doing the walkthrough (Hr g Tr 10 4 5 ) '7 In Loobv, the Virgin Islands Supreme Court explained Further, although a person in possession of an ounce or less of marijuana may now avoid criminal penalization, the presence or absence of criminal penalization does not disturb our constitutional frisk and seizure inquiry This is because reasonable suspicion the predicate for a valid stop and frisk does not depend on whether the People proved beyond a reasonable doubt that a defendant is guilty ; instead, reasonable suspicion is a matter of constitutionai and evidentiary concern turning on whether an officer reasonably concludes that evidence of contraband or of a crime may be present Gumbs 64 VI at 508 Notwithstanding enactment of Act 7700 the scent of marijuana (which remains contraband subject to seizure in this Territory) alone may be sufficient to establish reasonable suspicion or even “probable cause to conduct further investigation into possible criminal acts or evidence of contraband Lmted States 1 Ramos 443 F 3d 304 308 47 VI 755 (3d Cir 2006) ( It is well settled that the smell of marijuana alone if articulable and particularized, may establish not merely reasonable suspicion but probable cause ) Untied Staten Humphrzes 372 F 3d 653 658 (4th Cir 2004) ( [T]he odor of manjuana alone can provide probable cause to believe that marijuana is present in a particular place ) United Staten White, 593 F 3d 1 199, 1203 (11th Cir 2010) (“[T]he smell of marijuana alone may provide a basis for reasonable suspicion ”) United Sums t EILms 300 F 3d 638 660 (6th Cir 2002) United States 1 Kerr 876 F 2d 1440 1445 (9th Cir 1989) (noting that the presence of the odor of contraband may itself be sufficient to establish probable cause ) (citations omitted) United States 1 Russell 670 F 2d 323 325 216 U S App D C 165 (D C Cir 1982) (stating, [p]lain view we think it safe to say, encompasses plain touch, and probably ‘plain smell as well ) Therefore, we agree with the Superior Court that because possession of marijuana remains unlawful in this Territory officers may establish reasonable suspicion to conduct a Tera stop if the officer relied upon his or her experience and training to detect the presence of that contraband Looby 68 VI at 697 98 Charles referenced a plethora of cases in his brief to support his motion but failed to address Looby which was referenced by the People in their opposition People ofthe V I v Charles

iiiliglilfilfilizgpinion and Order 2023 v1 SUPER 31A Page I3 onI

b Whether the Terry Stop Transformed Into a De Facto Arrest

1] 19 While the Court finds the Terry stop was lawful, the Court must now address Charles

contention that the Terry stop transformed into a de facto arrest when he was handcuffed and was

not free to go

1] 20 “It is well established that during an investigative stop, police officers may take measures

reasonably necessary to protect themselves and maintain the status quo Consequently, [t]here is

no per se rule that pointing guns at people, or handcuffing them, constitutes an arrest ’ Blyden, 53

V I at 648 (internal quotation marks omitted) (citations omitted) In Blyden the Virgin Islands

Supreme Court found the fact that the police immediately drew their weapons, ordered Blyden to

the ground, and handcuffed him did not transform his detention into an illegal arrest if the officers

had reasonable suspicion ‘ that criminal activity [was] afoot and that the persons with whom [they

were] dealing [was] armed and presently dangerous 53 V I at 648 49 (quoting Terry, 392 U S

at 27 30 (‘ [T]here must be a narrowly drawn authority to permit a reasonable search for weapons

for the protection of the police officer where he has reason to believe that he is dealing with an

armed and dangerous individual regardless of whether he has probable cause to arrest the

individual for a crime ’)

1] 21 Through the testimony of Officer Jules, the People established that Officer J ules observed

Charles, who was sitting in the driver 3 seat, moving like he was placing something underneath

his seat, that upon Officer Jules shining his flashlight on the floor area of the vehicle Officer Jules

saw in plain view a black magazine with live ammunition in it in the floor area of the driver 5 seat,

that Charles exited the vehicle of his own volition, that Officer Jules detained Charles in handcuffs,

that Officer Jules advised Charles of his rights, that Officer Jules asked Charles some questions People offhe V I v Charles SX 2019 CR 329 Memorandum Opinion and Order 2023 V] SUPER 2 “A Page 14 of 21

and Charles responded, that one of the questions asked was whether Charles has a license to carry

a firearm in the U S Virgin Islands and Charles said no and that Officer Jules detained the

defendants ‘ just to be on the safe side because based on his experience, a magazine comes with

a firearm '3 Under these circumstances, the Court concludes that the officer had reasonable

grounds to believe that the defendants were likely armed and dangerous As a result, the officers’

actions in handcuffing the defendants did not transform the initial stop to an arrest requiring

probable cause See Blvden, 53 V I at 648 ( It is well established that during an investigative stop

police officers may take measures reasonably necessary to protect themselves and maintain the

status quo ’); see also People of the I I 1 Pemberton, 71 V l 251, 1] 46 (V [ Super Ct Aug 30,

20! 9) (“The use of handcuffs does not automatically transform a Terry stop into an arrest, provided

it is warranted by the circumstances especially when officer safety is at issue ’)

‘3 At the suppression hearing, Officer Jules further testified (i) When he approached the vehicle he observed Charles who was sitting in the driver 3 seat, moving like he was placing something underneath his seat (Hr g Tr 10 6 16) (ii) When he approached the vehicle and was by the driver 5 side fender, he turned on his flashlight to illuminate the area (Hr g Tr l0 17 25)' (iii) He shone the flashlight as he was approaching to make sure he could see there were other occupants in the car (Hr g Tr 22 l4 18); (iv) He illuminated the floor area of the vehicle and saw a black magazine with live ammunition in it (Hr g Tr l I 2 6); (iv) The black magazine with the live ammunition was on the floor area of the driver 5 seat in plain view it was not under the seat (Hr g Tr 23 I7 25 28 12 17), (v) Charles exited the vehicle of his own volition (Hr g Tr I l [0 l 1) (vi) He asked Charles if he had or ever had a license to possess a firearm in the Virgin Islands and Charles said no and That’s it s not mine (Hr g Tr l l [2 17); (v) He asked Caesar if had or ever had a license to possess a firearm in the Virgin Islands and Caesar said no (Hr g Tr 12 l6 17) (vi) He advised Charles of his rights and asked Charles some questions, which Charles answered (Hr g Tr 25 3 14) (v) Both defendants were detained and placed in handcuffs (Hr g Tr 30 3 4) (vi) He advised the defendants that he was detaining them and that they are not under arrest (Hr g Tr 40 10 19); (vii) He detained the defendants just to be on the safe side’ because “normally with a magazine, based on [his] experience, a magazine comes with a firearm (Hr g Tr 40 3 9 ) When the Court asked Officer Jules to clarify the order of the events, Officer Jules clarified that after he saw the magazine with the live rounds in the vehicle he advised the defendants that he was going to detain them then he placed them in handcuffs then he asked the defendants if they had a license to carry a firearm in the U S Virgin Islands and they both said no He explained that he asked them in advance if they have a license to carry a firearm because when you have a magazine, a magazine is normaily accompanied with a firearm ’ and [s]o [he] asked them in advance if they have a license to carry a firearm (Hr g Tr 35 I8 36 15 ) People ofthe V I v Charles SK 2019 CR 329 Memorandum Opinion and Order 2023 VI SUPER 33A Page 15 of 21

c Whether the Term; Frtsk was Lawful

fi 22 A Terry fn'sk is a limited search done ‘ only for detection of a dangerous weapon in the

interest of officer security ’ and ‘ [iIt by no means authorizes a search for contraband evidentiary

material, or anything else in the absence of probable cause and reasonable grounds to arrest

People ofthe V I v Bethe] 2017 VI LEXIS 12] at *9 (Super Ct Aug 3 2017) (quoting Terry

392 U S at 26 27) “The search for weapons approved in Ten) consisted solely of a limited patting

of the outer clothing of the suspect for concealed objects which might be used as instruments of

assault [against the officer] ” Blyden, 53 V I at 650 (quoting Stbron v New York, 392 L S 40 at

65 (1968))

11 23 In this case, there was no mention of the officer patting down Charles for a protective

search Instead, Officer J ules testified that the vehicle and Charles’ backpack inside the vehicle

were searched after the defendants were detained However, the search of the vehicle and Charles

backpack inside the vehicle exceeded the scope of the search sanctioned by Terry since it went

beyond the limited patting of the outer clothing of the suspect for concealed objects which might

be used as instruments of assault [against the officer] ’ Blyden, 53 V l at 650 As such, while there

is nothing for the Court to decide as to the lawfulness of the Terry frisk since there was no pat

down of Charles the Court must determine whether the search of the vehicle and Charles’

backpack inside the vehicle was lawfiJl

d Whether the Search ofthe Vehicle and Charles ’ Backpack [nszde the Vehicle was Lawful

1| 24 In Arizona v Cant, the United Supreme Court explained that ‘[w]here no arrest is made,

we have held that officers may search the car if they reasonably believe "the suspect is dangerous

and may gain immediate control of weapons," Mzchzgan v Long, 463 U S 1032, 1049 (1983) People ofthe V] 1 Charles 8X 2019 CR 329 Memorandum Opinion and Order 2023 V1 SUPER ‘ I SA Page 16 of 21

because ‘ [i]n the no arrest case, the possibility of access to weapons in the vehicle always exists,

since the driver or passenger will be allowed to return to the vehicle when the interrogation is

completed ’ 556 U S 332 352 (2009) In other words, under Long if an officer possesses a

reasonable suspicion that a suspect is armed and dangerous, he may conduct a brief protective

sweep of the suspect's vehicle, but the search is “limited to those areas in which a weapon may be

placed or hidden '4 Long 463 U S at 1049 On the other hand, [i]f there is probable cause to

believe a vehicle contains evidence of criminal activity, Umtea’ States v Ross, 456 U S 798, 820

21 (1982) authorizes a search of any area of the vehicle in which the evidence might be found

Art ona v Cant 556 U S 332 347 (2009)' see Browne v People 0fthe VI 56 VI 207 217

(V I 2012) (“Under the automobile exception to the warrant requirement, law enforcement may

seize and search an automobile without a warrant if probable cause exists to believe it contains

evidence of criminal activity ) “Probable cause exists when, under the totality of the

circumstances, a reasonable person could believe there is a fair probability that contraband or

evidence of a crime will be found in a particular place and ‘ [t]he test of reasonableness cannot be

fixed by per se rules, each case must be decided on its own facts Browne, 56 V I at 217 (internal

quotation marks omitted) (citations omitted) In Ross, the United States Supreme Court explained

'4 The Long court explained Our past cases indicate then that protection of police and others can Justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons See Terry, 392 [*1050] U S at 2l [The] issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger " Id at 27 [f a suspect is dangerous he is no less dangerous simply because he is not arrested 463 U S at 1049 50 People ofthe V I v Charles SX 2019 CR 329 Memorandum Opinion and Order 2023 VI SUPER k SA Page 17 of 21

The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found If probable cause JUStifiCS the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the Obj ect of the search

456 U S at 824 25

1! 25 Through the testimony of Officer Jules the People established that the vehicle and a black

backpack in the vehicle that belongs to Charles were searched after the defendants were detained,

that the defendants did not consent to the search, that the vehicle was searched first and resulted

in a firearm recovered under the driver’s seat and a burnt cigarette recovered underneath the stereo,

that Charles backpack was searched thereafter and resulted in five small vials (four empty; one

contained green leafy substances), that the burnt cigarette turned out to be a marijuana cigarette

and the green leafy substances turned out to be marijuana, and that Charles made some statements

afier being advised of his rights '5

As noted above, Officer Jules testified that he is trained to identify the odor of marijuana,

that he personally smelled marijuana when he came up to the vehicle, and that the two male

individuals were the only individuals in the parking lot at the time Officer Jules and his partner

were doing the walkthrough Under these circumstances, Officer Jules had probable cause that

contraband or evidence of a crime will be found in the vehicle See Looby, 68 V I at 697

‘5 At the suppression hearing Officer Jules further testified (i) After he detained Charles and placed Charles in handcuffs he advised Charles of his rights then he asked Charles some questions and Charles answered his questions (Hr g Tr 25 5 l4 )- (ii) One of the questions he asked Charles was whether Charles has a license to carry a firearm in the U 8 Virgin Islands and Charles said no (Hr g Tr 35 18 36 15) (iii) After the defendants both said they did not have a license to carry a firearm in the U 5 Virgin Islands, the vehicle was searched (Hr g Tr l9 19 25, 30 l 1 16) (iv) A black backpack that belongs to Charles was also searched (Hr g Tr 20 5 l3)' (v) The officers did not get permission from the defendants to the search of the vehicle (Hr’g Tr 30 4 22), (vi) A firearm was recovered under the driver‘s seat of the vehicle, a burnt cigarette was recovered underneath the stereo, and five small vials (four empty, one contained green leafy substances) were recovered from the backpack (Hr g Tr 19 22 20 3) (vii) Subsequent field test revealed that the green leafy substances were marijuana (Hr g Tr 20 14 16); (viii) The burnt cigarette turned out to be a marijuana cigarette (Hr g Tr 20 17 21 l ) People ofthe V I v Charles SX 2019 CR 329 Memorandum Opinion and Order 2023 VI SUPER IQL Page 18 of 21

( Notwithstanding enactment of Act 7700, the scent of marijuana (which remains contraband

subject to seizure in this Territory) alone may be sufficient to establish reasonable suspicion or

even ‘ probable cause to conduct further investigation into possible criminal acts or evidence of

contraband ) Under Ross, the officers were permitted to search every part of the vehicle and its

contents that may conceal evidence of criminal activity, including Charles’ backpack in the

vehicle While conducting a legitimate search of the vehicle and Charles’ backpack, the officers

recovered the firearm from under the driver’s seat, the marijuana cigarette from underneath the

stereo, and the five small vials (four empty; one contained green leafy substances) from Charles

backpack The Court finds no need to suppress the evidence recovered

Even assuming arguendo that the scent of marij uana was insufficient to establish probable

cause in this instance the Court still finds no need to suppress the evidence recovered As noted

above, Officer Jules testified that he personally observed in plain view a black magazine with live

ammunition, that based on his experience a magazine comes with firearm, that the defendants

were not arrested but detained in handcuffs out of concerns for the officer 5 safety Under these

circumstances, the Court finds that the officers were permitted under Long to conduct a brief

protective sweep of the vehicle limited to those areas in which a weapon may be placed or

hidden to wit, Officer J ules had reasonable suspicion that the defendants were likely armed and

dangerous and may gain immediate control of weapons since the defendants were not arrested at

that time and thus, the possibility of access to weapons in the vehicle existed once the interrogation

was completed and the defendants were allowed to return to the vehicle As such, the search of the

vehicle under the driver 5 seat was justified since it is an area in which a weapon may be placed

or hidden Once the firearm was recovered, coupled with the fact that both defendants had already People ofthe V I v Charles

lilénzlgl'gncdfitflogpinion and Order 2023 VI SUPER E “A Page 19 of 21

indicated that they did not have a license to carry a firearm in the U S Virgin Islands, Officer

Jules’ reasonable suspicion ripened into probable cause to believe that the vehicle contained

evidence of criminal activity See Browne, 56 V I at 217 Because the officer’s reasonable

suspicion had ripened into probable cause at that point, Ross permitted the search of every part of

the vehicle and its contents that may conceal evidence of criminal activity, including Charles’

backpack in the vehicle While conducting a legitimate search of the vehicle and Charles’

backpack, the officers recovered the marijuana cigarette from underneath the stereo and the five

small vials (four empty; one contained green leafy substances) from Charles’ backpack In Long,

the Lnited States Supreme Court stated that ‘ [i]f, while conducting a legitimate Terry search

the officer should as here, discover contraband other than weapons, he clearly cannot be required

to ignore the contraband, and the Fourth Amendment does not require its suppression in such

circumstances Long 463 U S at 1050 see Gumbs v People ofthe V I 64 V l 491 509 (2016)

Similarly, in this instance, the Court finds no reason for the officers to ignore the contraband

discovered while conducting a legitimate search and that the Fourth Amendment does not require

the suppression ofthe mariJ uana cigarette and the five small vials (four empty; one contained green

leafy substances)

d Whether the Statements Made by Charles are Adm:ss:ble

1] 26 The Court must now address Charles’ contention that he made statements without being

given his Miranda” rights ‘ The requirement to administer warnings in advance only attaches to

” In Blyden, the Virgm Islands Supreme Court explained, In Mzranda 1 An om: 384 U S 436 478 79 (1966) the United States Supreme Conn held that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning the privilege against self incrimination is Jeopardized Procedural safeguards must be employed to protect the privilege and unless other hilly effective means are adopted to notify the person of his right of silence and to assure that the exercise People ofthe V! i Charles SX 2019 CR 329 Memorandum Opinion and Order 2023 VI SUPER E hA Page 20 of 21

statements which are the product of custodial interrogation Castillo, 59 V I at 265 Assuming,

without determining, that the statements Charles made in reSponse to Officer Jules questions,

while detained in handcuffs by the vehicle, stemmed from custodial interrogation, the People

established through the testimony of Officer Jules that Charles made the statements after being

advised of his rights to wit, Officer Jules advised Charles of his rights before he asked Charles

several questions to which Charles made statements in response thereto 17 There is nothing in the

record to indicate that Charles did not understand his Miranda rights ‘ [A] suspect who has

received and understood the Mzranda warnings and has not invoked his Miranda rights, waives

the right to remain silent by making an uncoerced statement to the police ’ Blya’en, 53 V I at 662

(quoting Berghuts v Thompkms 560 L S 370 389 (2010)) Accordingly the Court finds that

these statements do not need be suppressed as violative of Miranda

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that Charles 3 motion for joinder is GRANTED NUNC PRO TUNC It is

fin‘ther

of the right will be scrupulously honored the following measures are required He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires Opportunity to exercise these rights must be afforded to him throughout the interrogation After such warnings have been given, and such opportunity afforded him, the individual may kn0wingly and intelligently waive these rights and agree to answer questions or make a statement But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him 53 VI at66l n 19 ' See supra footnotes l3, l4 People ofthe VI 1 Charles 8X 2019 CR 329 Memorandum Opinion and Order 2023 VI SUPER I SA Page 21 of 2]

ORDERED that, within five days from the date of entry of this Memorandum Opinion

and Order, the People shall file a first amended information consistent as granted at the

suppression hearing And it is further

ORDERED that Charles motion to suppress all the evidence and statements, as a joined

motion to Caeser’s motion, is DENIED Mt DONE and so ORDERED this ll; day of March 2023

ATTEST 2% fl %42P Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Senior Sitting Judge of the Superior Court By fig; ”3,4 ( 1&4— ourt Clerk Supemserfl

Dated 34 /&4 £03 3