People of the Virgin Islands v. Fade Asad and Darnley Peterson

• Court: Superior Court of The Virgin Islands
• Decided: April 26, 2024
• Docket: SX-2021-CR-198 and SX-2021-CR-199
• Status: Published

Opinion

SUPERIOR COURT OF THE. VIRGIN ISLANDS

DH [SIGN OF ST CROIX

PEOPLE OF [HF VlRGlN ISI ANDS I SX 2021 CR 198

PL “MIN“,

V.

FADE ASAD

DFFEVDMT

PEOPLE OF THE VIRGIN ISLANDS sx 2021 CR 199 PLAINTIFF,

V

DARNLEY PETERSON I CITE AS 2024 VI SUPER 1’9

Du m1)me

Appeal ances

Amie M Simpson, Esq Martial A VVebstel, Sr , Esq Viigin Islands Depaitment of Justice Law Office of Martial A Webstm, Sr St Croix, U 5 Virgin Islands St Croix U S Viigin Islands [01 People offhe Vugm Islands F0) Fad< Asad

Ronald Russell, Esq The Russell Law Firm LLP St Croix, U S Virgin Islands F01 DczrnelV Peter son

MEMORANDUM OPINION AND ORDER

WILLOCKS, Administrative Judge

1’} 1 THIS MATTER came before the Conn for a second suppiession hearing on July 26 2023

' There is a discrepancy between the Spellinu of Defendant Damely Peteison 5 last name in the information and in his filings to wit the information Spelled it as Peterson while his filings spelled it as Petersen ’ The Lou“ will use the ipdling used in the information since that is the initiating document and the spelling of the name therein was hex ex amended Peoplc offlzei I \ 45ml Pmph ()ft/zc VI 1 P(ICIS‘OII SX 7021 CR198 SX 2021 CR199 Memorandum Opinion and Order 2024 \ I SLPER 44:? Page 2 0f 16

BACKGROUND

{3 2 On September 13 2019 the People of the Virgin Islands (hereinafter People ) fi1ed a Joint

information against Defendant Fade Asad (hereinafter ‘ Asad ’) in criminal case numbex 8X 2021

C R 198 and Defendant Damer Peterson (hereinafter ‘ Peterson and together with Asad

‘ Defendants’ ) in criminal case number SX 2021 CR 199 based on the events that allegedly took

place on or about August 28 2021 as set forth in the affidavit ofPolice Officer 13w ayne E Walters

(hereinaftex Officel Walters ) dated September 13 2021 (hereinafter Walters Affidavit ) The

information charged both Asad and Peterson with the following counts

Count One FADE ASAD, when not authorized by law, did have possess, bear, transport, or early either actua11y 0r constructively, open or concealed, 3 1116211111 to wit a black Glock 23 40 calibet bearing seIial numbel #BGHA928 in violation of Title 14 V 1 C § 2253(8) (UNAUTHORIZED POSSESSION OF A FIREARM)

Count Two FADE ASAD when not authorized by law possessed firearm ammunition, to wit multiple 4O ealibet live rounds in Violation of Title 14 V I C § 2256(a) (POSSESSION OF AMMUNITION)

Count Three DARNLEY PETERSON, when not authorized by law did have possess, bear transport, or calry eithe1 actually or constructively, open 01 concealed, a firealm to wit a black Glock 23 40 caliber bearing serial number #BGHA928 in violation of Title 14 V I C §2253(a) (UNAUTHORIZED POSSESSION OF A FIREARM)

CountFou1 DARNLEY PETERSON when not authorized by law did have possess heal transport, or calry eithe1 actually 01 constructively, open or concealed a firearm to wit a black Glock 23 40 caliber bearing serial number #BGHA928 in a 4 door Grey Nissan Altima with no license plate numbel in violation of Title 14 V 1 C § 2253(e) (UNAUTHORIZED POSSESSION OF A FIREARM IN A VEHICL E)

Count Five DARNLEY PETERSON when not authoxized by law possessed fitearm ammunition to wit multiple 40 caliber live rounds in Violation of Title 14 V 1 C § 2256(a) (POSSESSION OF AMMUNITION)

(Information )

fl3 A copy of Officer Walters Affidavit was filed with the information In his affidaVit

Officer Waltels stated in relevant part (i) on August 28 2021 Police Officer Jon Modeste P(uple (gff/Ie I I \ 43nd People ofilu I I \ Pearson S\ 2021CR198 5X 3021CR199 4}) Memorandum Opnuon and Order 2024 \ I SLPER Page 3 of16

(hereinafter ‘ Officer Modeste ’) and Police Officer Robin Richards (hereinaftet ‘ Office:

Richards ’) were on mobile patrol in a marked police vehicle (ii) at around 10 28 p m Officer

Modeste and Officer Richards observed a four door grey Nissan Altima without a rear license plate

leaVing a parking space new the Napoleon’s Pizza in Petet 3 Rest on St Croix; (iii) at that time?

Officer Walters w as also on mobile patrol near the Napoleon s PiZZa in Petet ”s Rest on St Croix

(iv) Officer Modeste and Officer Richalds then conducted a traffic stop of said vehicle in the

parking lot of Napoleon 5 Pizza; (v) du1ing the tratfie stop Officer Waltels was positioned by the

driver side of the vehicle while Officer Modeste and Officer Richalds wele positioned by the

passenger side of the Vehicle; (vi) Officer Walters observed the front passenger latex identified as

Petelson begin to exit the vehicle (Vii) ‘ based on infmmation and belief while M1 Petels[o]n

was trying to get out of the Vehiele [Officer Richards] observed what appeal ed to be the handle of

a gun Vt 1th an extended magazine protruding from an open brown in color baekpack style bag that

was located on the floorboald of the vehicle (viii) about that same time, Offieer Walters asked

the timer later identified as Asad to pxoduee his d1iver’s license vehicle registration, and proof

ofinsuranee (ix) Asad was only able to able provide Otficel Waltels with the insurance card for

his vehicle; (x) while Offiee1 Walters was still standing by the driver side, Officer Modeste eame

around the vehiele and advised Offieel Walters that Officer Richards observed what appeared to

be a firearm in a brown bag on the fl001boaxd ofthe front passenger side ofthe vehicle, (xi) Officer

Walters then ordered Asad to exit the vehicle; (xii) Officer Walters and Officer Riehalds then

commanded Asad and Peterson to lay on the ground (xiii) Asad and Peterson were then advised

of the officers findings and Officer Walters asked them ‘ who does the firearm belong to;’ (xiv)

both Asad and Peterson leplied that ‘ it doesn’t belong to us ” (xv) Asad and Peterson were then

asked it eithet of them had a license to possess the firearm that was in the ear and they both replied Pwplt (1f (12c I I \ 45111] People OjI/IL I I t Ptruxon SX 302l (R :98 5X 202l CR 199 Memorandum Opinion and OrdLr 2024 VI SUPER fig Page 4 0t l6

‘ no; (xvi) Asad and Peterson Vt ere then placed in handcutts and patted down before being placed

in the panel unit (m ii) Fetensic Technician Makima Wilkinson (heteinaftet Offieer Wilkinson ’)

and ITorensic Teehnielan Elyce Fleming came to the scene to process the vehicle and collect the

firearm (mitt) Officer Wilkinson teem ered the follOVting hem the vehicle a firearm that was a

blaek GlOek 23 40 caliber suial number BGHA928 which contained thirteen live 40 caliber

rounds in the black magazine and one 40 caliber round in the chamber and a second black

magazine that contained nine live 40 caliber rounds and (xix) the Custodian of Reeoxds fin the

Firearm Bureau confirmed that neither Asad nor Peterson hax e a license to possess firearm in the

U S Virgin Islands (Walters Aff)

1] 4 On July 21 2022 Asad filed a motion to suppress any evidence seized and statements

made by [him] ’ and a memOIandum of la“ in supp01t thereof in criminal case number SK 2021

CR 198 7 On August 1 1 2022 the People filed an opposition theteto 3 After the People filed their

opposition on Septembet 18 2022 Peterson filed ajoindet of Asad s motion to suppress and his

own motion to suppress ‘any evidence seized and statements made by [him] ’ in criminal case

number SX 2021 CR 199

1] 5 On Septembel 23, 2022 this mattet came before the Court tor a suppression heating At

the end of the suppression hearing, the CGun ordered the parties to file bupplemental briefings on

certain issues that were raised for the first time at the heating The People, Asad, and Petelson filed

their supplemental briefs on October 3, 2022 October 7 2022 and October l 1, 202 A respectively

7 Asad attached the following to his motion Exhibit 1 "[110 Walters Affidavit ‘ The People attached the tollouing to their opposition Exhibit A Photo of dark gray \ehlcle without a registration sticker affixed to the 10v» er left comer of the windehield and without a front license plate affixed; and Exhibit B Photo of the interior 01‘ the front passenger side of a vehicle and the contents contained therein People 0/1/15 I I \ 4sad Peoplc affix L 1 \ Petelsm 5X 2021CR198 SK 2021 CR 199 Memorandum Opinion and Order 2024 VI SUPER Q Page ‘ 0f 16

fl6 On July 10 2023, the Court entered a memorandum Opinion and order (hereinaftei ‘July

10 2023 Order ’) whereby the Court held that ‘ by not having the registration sticker and the front

license plate affixed to his vehicle in the parking lot of Napoleon’s Pizza, Z\sad committed tiatfie

Violations and the traffic stop to investigate the Violations was lawful ’4 but noted that a second

suppression hearing was necessary to address the issues Defendants raised for the first time at the

hearing, and in their supplemental briefs to wit, issues as to the plain view doctrine and the lack

of in court identification at the September 23 2022 suppression hearing

11 7 On July 26 2023, this matter came before the Court for a second suppression hearing

limited to the following two issues (i) whether it was immediately apparent that the item observed

is evidence of a crime contraband or otherwise subject to seizure and (ii) what implications, if

any result from the lack of in cou1t identifications at the first suppression healing The Court heaid

arguments from the parties and the testimony of the People 3 witness Officei Robert Richards

(hereinafter ‘ Officer Richards’ ); neither defendant presented any witnesses Officer Richards

testified mic; aha that he had specialized training in tiiearms that he saw the black object in a

brown bag in plain view on the floorboard of the front passenger side of the vehicle that he

immediately recognized the black object as the butt of a firearm and that Defendants before they

were advised of their Miranda rights were then asked if they had a license to carry the firearm

which they answ e1 ed in the negatiVe Given that there was no testimony that the officers had any

reason to believe that Defendants lacked a license to carry the firearm until Defendants told the

officers that they did not have one Unzted Slates \ sz/cs 224 224 F 3d 213 (3d Cir 2000) and

4 The Court referenced Rodi zgue \ U S 573 U S 348 334 (2013) (1 he United States Supreme Court held that [a] seizure for a traffic Violation justifies a police investigation of that \iolation and explained that ‘ [a] relati\e1y briet entounter ’ a routine traffic stop is more analogous to a 50 called Tenj stop than to a formal arrest ) (citations omitted) Pwplc ojthe I I t Asuc/ People 0/1/20 V] \ [’tluson SK 2021 CR 198 SX 2021 CR 199 Memorandum Opinion and Order 2024 VI Sl’PLR 2Q Page 6 01 16

its progeny were triggered At the end of the hearing the L curt gave the parties the opportunity to

file supplemental btiefings as to the implications of Lbzles and its progeny hue if any Petetson

the People and Asad filed theil supplemental briefs on March 20 2024 Aplll 2 2024 and Aptil

5 2024 1e§peetively

STANDARD OF REVIEW

11 8 ‘1 he Fourth Amendment protects persons from ‘unreasonable searches and seizutes ”’

People of flu VJ \ Loobv 68 V I 683 694 (V I 2016) To conduct a valid search undet the

Fourth Amendment generally a Judge 0r magistrate ‘ must issue a wanant upon a finding of

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

things to be seized [d Sealches conducted “without prior approval by judge or magistrate me

[361 59 umeasonable undel the Fomth Amendment subject only to a few specifically established

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

Fourth Amendment ‘ applies to all seizures 01 the person including seizures that involve only a

briefdetention short oftraditional arrest 3/1616]? 1 People ofthe VI 53 V I 637 647 (V I 2010)

(citing Blown \ Texas, 443 U S 47 50 (1979) (internal quotations omitted»

119 “Although the burden of proving that a seanch or seizule was unlawful nonnally rests

with the defendant, when the police conduct a sealch 01 seizu1e without a wanant the burden

shifts to the govemment to prove exigent circumstances 01 another exception to the warrant

tequitement ” Nzcholas 1 People of the VI 56 V I 718, 738 (V I 2012) (citations omitted), see

3 ‘ The Fourth Amendment is applicable in the Virgin Islands pursuant to § 3 0f the Raised Organic Act of 1954 PCOPIL ofihc I I \ Glasfma' 2027 VI LEXIS 40 at *10(VI Supel Ct Apr 19 2022) (Citing Ptopleqftlu I I \ Almmang 64 VI 528 530 nl (VI 2016) (citing Raised Organic Act of 1954 § 3 48 U S C § 1561 lepzmzul mVI CODE ANN Historical Documents Organie Acts and U S Constitution at 87 88 (1995 8. Supp 2013) (preceding V I CODE Arm tit 1)) People of 1/2: I 1 \ 45(ch People (1/1/18 1/ I \ PER son SK ’021CR198 S\3()21CR 199 Memmandum Opinion and Order 2024 VI SLPER 10 Page 7 01 16

Aimslmng, 64 VI at 537 ( Although ordinarin it is the defendant who bears the bmden 0t

preying that exidence should be suppressed this is not the case it a defendant has moved

to suppress evidence on grounds that it w as obtained without a wanant in violation of the Fourth

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

ploseeution that heals the burden of proving that the warrantless search was 1easonab1e ) Any

evidence detived 1mm a Fourth Amendment Violation must be excluded from t11a1 as fruit of the

poisonous nee ’ B/yden, 53 V 1 at 650 (citing Wong \ US 371 U S 471, 488 (1963))

DISCUSSION

1 I ack of In Court Identification at the September 23, 2022 Suppression Hearing

'11 10 The issue posed before the Court is whether the1e must be an in court identification of

each defendant at the suppression hearing as either the drivel or the passenger 01‘ the V6111<1€

stopped Defendants argued that the lack of in court identification at the first supplession hearing

was fatal to the plosecution and thus, the Court should dismiss the Charges against Defendants

The People disagleed and a1 gued that an in court identification was not necessary at the

suppression hearing

1] 1 1 The Court 5 1esearch disclosed no Virgin Islands pxeeedent on point Howwel a teview

of the United States Supreme Court ptecedent makes it very clear that the Fourth Amendment

rights is a personal light which may not be vicariously asserted See Whole Woman’s Health \

Hellelsfcdl 579 U S 582 630 (2016) (quoting Aldmman V bnzted Stain 394 U S 165 174

(1969)) (Fourth Amendment rights are pu1e1y personal) see also Rakas \ 11/117025 439 U S

128, 140 n 8 (1978) V I R CRIM P 41(g) (‘ A person aggxieved by an unlawful search and seizuxe

of property 01 by the deprivation of property may mme tor the property's tetum ) 1n othel welds,

a defendant must show that he was in fact the victim of a patticulal Fourth Amendment Violation Pwpleqft/zc I I \ 4311c! People offlze VI t Petenon SX 2021CR198 SK 2071 CR 199 Memorandum Opinion and Order 2024 VI SLPER B? Page 8 0t 16

to challenge the legality of the sealch or seizuie See Jldelman t Untied States, 394 b S at 173

(quoting Jones V Lmled States 362 U S 257 261 (1960)) ('ln ordei to qualify as a 'person

aggrieved by an unlawful search and seizure' one must have been a victim ot a seateh or seizure

one against whom the search was directed as distinguished from one who Claims prejudice only

through the use of evidence gathered as a consequence of a search or seizure diieeted at someone

else ) With this in mind the Court finds that when Asad and Peterson filed their iespeetive

motions to suppress Asad and Peterson eaeh alleged that he himself was a ‘ Vietim of an invasion

of ptivacy ’ By alleging that he himself was the victim of an illegal search and seizu1e as a result

of an illegal stop Asad effectively claimed that he was the driver as stated in his motion and that

he is entitled to claim that the search and seizure by the officers occuned in violation of his Fourth

Amendment rights; similarly by alleging that he himself was the Victim of an illegal search and

seizure as a result of an illegal stop, Peterson effectively Claimed that he was the passenget as

stated in his motion and that he is entitled to claim that the search and seizure by the officers

OCeurted in violation ofhis Fourth Amendment rights 6 See Jones 362 U S at 261 S(e also Rakas,

439 U S at 132 Had the evidence revealed that Asad was not the driver or that Peteison was not

the front passengei then they would not have standing to pursue the suppression of evidence and

statements and to seek to vindicate their Fourth Amendment lights However no such evidence

was introduced at the suppression hearing and the People did not contest Detendants’ allegations

“ In their respective motions both Defendants referenced the WalteIs Affidavit which identified Asad as the driV ex and Peterson as the front passenger While it is true that Defendants stated therein that they ‘contest[] the facts of the [Walters] Affidavit it appeals that they only contested to Officer Walters statement that the officers observed a four door grey in color Nissan Altima bearing no rear license plate leaving a parking space near the Napoleon's Pizza in Peter's Rest ’ to wit Defendants argued that ‘ [t]he officels were not able to see from the f: ont of the \ehiele that the vehicle did not have a license plate in the back of the vehicle xx hieh the officers articulate for theii reason fox stopping defendant s xehicle (Asad Motion 5 Peteison Motion 4 ) There was no mention of any dispute over Asad 8 identity as the drivel of the vehicle and Peterson’s identity as‘ the front passenger ot the x ehiele Peoplc ojl/n L I \ Amt] Peoplc ()jiht L I \ Penman SK 2021 CR 198 SK 7021 CR 199 Memorandum Opinion and Order 2024 VI SUPER Q0 Page 9 of 16

that Asad was the driver and Petetson W as the hunt passenget and that they W616 the indi\ iduals

sealehed and seized by the officers Thus the Coult finds that Defendants” allegations in theix

supplession motions sufficed to establish Asad as the drivel and Pete son as the passenget seeking

Lonstitutional p1 oteetion and the People bears no burden at the suppression heating to p10\€ that

Defendant's were the \ietims 0f the alleged illegal police eonduct As such, the Ccurt concludes

that the People do not have an obligation at the hearing on Defendants’ motions to suppless as

they do at a ttial 0n the metits, to identify Defendants as the indiyiduals who ate alleged to have

Lommitted the crime Additionally, where Defendants hax e challenged the legality of a seareh and

scum as unsupported by probable cause \ia motions to suppress, the (OUIt finds that that such

motions are not convetted to a probable cause hearing where the People must move to a probable

cause standatd that the defendant committed a crime V I R CRIM P 5(b)(1) (“The court shall

considet any atfidayit or information then filed, and shall examine the arresting Officer and/Ot any

other witnesses to the crime under oath at the Initial Appearance Heating The defendant may

cross examine witnesses against him If f10m the evidence it appeals that thete is pxobable cause

to believe that an offense has been committed and that the defendant committed it the judge ox

magistrate shall forthwith hold the defendant to answe1 the complaint The finding of probable

cause may be based upon healsay evidence in whole or in part ’); V I R CRIM P 5(b)(2) (‘ It the

judge or magistrate judge detennines at the Initial Appearance hearing that thele is no ptobable

cause to belieV e that any offense has been committed 01 that the accused committed it the court

shall dismiss the ploceeding, dischaxge the accused and exonerate any bail posted The discharge

of the accused shall not preclude the Government from instituting a subsequent preseeution tm the

same offense based an additional facts or evidence ”) To put it another way, a motion to suppress

plaees upon the People the burden of proving that the officers did not Violate Defendants’ Peopk 0/1/28! I 1 11m! PFUPIL 0/ r1161 I 1 Penman SX 2021 (R 198 3X 201CR199 Memorandum Opinion and Ordel 2024 VI SI. PER 4/0 Page 10 01 16

eomtitutiona1 tights in Older tor Detendants t0 ploeeed with theiI motions to supptess eaeh

defendant must bting himself before the Court as the person whose rights were allegedly vio1ated

and once the defendant has done this by filing a motion to supptess, identity is not at issue at the

suppression hearing and there 1% no need for the in eourt identification of Detendanta theleat

2 Plain V1e“ Doctrine

11 12 The plain view doetline is a well established exception to the warrant tequirement Gunth

1 People of the VI 64 V I 491, 508 (V I 2016) In Crumbs the Vilgin IsIande Supteme Court

noted that under the plain View doettine an offieel may make a wanantless seizuxe of any item

that he or she has Viewed hem a place 01 position in which he or she 11 as lawfully entitled to be

pIOVided it is immediately apparent that the item observed is evidence of a mime contxaband or

otherwise subject to seizute 64 V I 491 508 09 (V I 2016) (citing Thomas 1 People 63 V I

595 606 n 4 (eiting T616151 BIOHH 460 U S 730 741 (1983))) The United States Supleme Court

explained that ‘ [i]f while conducting a legitimate T6111 sealeh the Officer should as hele

disem er eont1 aband other than weapons he dearly Lannot be tequired to ignore the contraband

and the Fourth Amendment does not requite its suppxession in such circumstances ’ Gumbv, 64

V I at 509 (quoting Mznncsota 1 Dielselson, 508 U S 366 (1993) (quoting Mzcl1lgan1 Long 463

U S 1032 1050 (1983) and Citing bzblon1 [V(It Imk 392 U S 40 69 70 88 S Ct 1889 20 L

Ed 2d 917 (1968) (White J eoneurrinb)))

‘11 13 At the second supptession hearing,7 Office] Richards testified that he is knowledgeable

about firearms and that he was in dose proximity to the vehicle when he spotted the black object

In the Jul} 10 2023 Order the Coult explained ‘1' 25 Ihmugh the atfidax it and testimony oi Officer Walters, the People established (1) during the ttatfie Stop Ottxeex Walters was Standing by the drix er side of the \ ehiele (ii) during the traffic stop other otfieers including Officer Richards wele standing by the pashengex side of the 1ehie1e and (iii) Office: Richalds Peop/c Oft/zc I I \ 4&1th People 0/ [11¢ II 1 P(IUSOH 5X 2021 (R 198 5X 2021 CR 199 Memm andum Opinitm and Order 2024 \ I SLPILR f i Q Page 11 0t 16

in plain View which he immediatelv recognized the object as the butt of a firearm In light of

Office: RIChEllClS testimony and giVen that the Court already found the initial stop to be lawful

the Court concludes that the plain View exception to the warrant requirement applies to the fiiearm

seized fiom the vehicle

3 thlev and 118 P1 ageny

11 14 As noted above, Ubiles and its progeny were tiiggeied at the sewnd suppression hearing

when there was no testimony that the officers had any reason to believe that Defendants lacked a

license to catty the fitearm until Defendants told the officers that they did not have one In szles

the stop and frisk originated aftet a member of the public informed a law enf01cement officer that

a man Ubiles standing on the sidewalk at a crowded event possessed a gun The pat down

search of Ubiles revealed a maehete and an unregisteted firearm and the United States

subsequently filed an indictment against Ubiles for possession of a fiiearm with an obliterated

serial number in violation of federal law 18 U S C §§ 922(k) 924(a)(l)(B), and possession 0t an

unregisteied firearm in violation OfVirgin Islands law Title 14 V I C § 2253(a) szles 224 F 3d

at 215 In teviewing the District Court 5 decision to deny Ubiles s motion to suppiess the fiiearm,

observed what appeared to be the handle ofa gun with an extended magazine protruding from an open brown in color backpack style bag that was located on the fioorboard 0f the vehicle ‘1 26 In this instance Asad and Peterson 9 counsel did not raise any arguments as to the circumstances surrounding Peterson s act of attempting to exit the vehicle Thus the Court construes that the defense counsel do not dispute the lawfulness of the circumstances surrounding Peterson s act of attempting to exit of the vehicle Since the Court finds that the traffic stop was [awful and the defense counsel did not dispute the lawfulness of the circumstances surrounding Peterson S act of attempting to exist the vehicle the C Quit finds that the officers Vt ere lawfully entitled to be standing by the passenger side of the vehicle Gumbs 64 V I at 508 9 HoweV er as noted above the officer that initially observed in plain \ iew the item that appeared to be a fireann did not testify at the suppression hearing since this issue was raised for the first time at the suppiession hearing Thus the Court cannot determine whethei it [wa]s immediately apparent that the item obserV ed is e\ idenee of a crime contraband or otherwise subject to seizure ’ Id At this junctute the Court will schedule a second suppression hearing to address this issue 7 Gix en that the plain flew dOCttine is an exception to the warrant requirement the Court cannot address the defendants argument as to lawfulness 01 this “arrantless search until after the Court detemlines whether the plain View doctrine is applicable here (July 10 2023 Order) People 0} 1/201 1 x 43m! People of [1161 I t Peterson SK 2021 CR 19% 8X 7021 (R 199 Memorandum Opmlon and Order 2024 \ I SLPER 2’5; Page 12 of 16

the Third C iicuit held that ‘[i]t is not necessarily a crime to possess a them m in the Virgin ts1ands

1101 does a mere allegation that a suspect possesses a firearm as dangerous as firearms may be

justify an otficer in stopping a suspect absent the reasonable suspicion required by 761.7) ’ and

ultimate1y concluded that the firearm seized was the fruit of an un1awful seizure because

reasonable suspicion was not present in the absence of any evidence that the Ubiles illegally

possessed the gun or was otherwise engaging in criminal activity [0’ at 217 18 (citations omitted)

However ‘ in the years after Ubrles was decided, the Third Circuit found constitutional a stop and

frisk initiated based solely on a tip that an indiVidual possessed a firearm People 0/1/20 I I \

Mime]! 56 V 1 796 806 (V 1 2012) (citing UntiedSmteSi Gatlm 613 F 3d 374 378 79 (3d Cir

2010) Lizzted Slatesx Valennne 232 F 3d 350 357 (3d Cir 2000))

11 13 In their respective supplemental brief Defendants essentially argued that the Court shou1d

giant their motions to suppress because similar to the circumstances in szlcs reasonable

suspicion was not present in the absence of any evidence that they illegally possessed the firearm

or was otherwise engaging in criminal actixity (Asad Supp Brief Peterson Supp Brief ) In their

supplemental brief the People argued that the Court should deny Defendants motions to suppress

because they completely failed to assert their Fifth Amendment right and failed to properly assert

their Fourth Amendment rights under szles and should be ‘ limited to seeking suppression 011

[the grounds of plain view and the lack of in court identification] (People 3 Supp Brief)

11 16 The CQuit notes at the outset that szles is merely persuasiVe authority not binding

authority since it was before the Third C iieuit on appeal from the District Court of the Virgin

Islands sitting as a federal trial court See E1 nest \ MOIllS 64 V I 627 638 (V I 2016) ( In other

words Third C ircuit decisions are merely pelsuasive authority if the ease was before that court on

appea1 from the District 01‘ Delaware, the District ofNew Jersey the Eastern Western, or Middle 7’ 017A 0/ thel I 1 4x“! Pwpleofrhef I \ Peteimn 8X 2021 CR 1)? 5X 2021 CR 199 Memorandum Opinion and Order 2024 VI 81 PFR _/_I/0 P lg€ 13 of 16

Distiiets of Pennsyhania 01 the District Court 01‘ the Vitgin Islands Sitting as a federal trial

eourt ”) sac also Wyatt“ 1 People 38 V I 315 327 27 (V 1 2013) (rejecting the paxties‘

assertion that a deeieion in a case that originated in the Western DiStIiLt 0t Pennsylx ania is

binding on the Supetiot (Quit and noting Although we pteviously instructed that decisions

rendered by the Third Cimuit are binding upon the Supeiior C Gum even if they would only

represent persuasiVe authmity when this Coutt considers an issue, we have made this statement in

the context of decisiom the I hiid C ircuit tendered while sewing as the dc facto court of last resort

in the Vii gin Islands ) (alterations, citations and internal quotation marks omitted) Thus while

the Court acknowledges the Third Citeuit’s holding in (Ibz/es the Court finds it unpersuasive,

especially in light of 11mm]! 1n Mime]! the Viigin Islands Supreme Court questioned the Third

Citeuit’s eonclusion in szles and Len lS‘ that local \I iigin Islands law does not Lontain a

presumption that an individual laeks a permit to carry a fixeai‘m,8 pointed out that section 488 [of

3 1n Lents the Third Circuit distinguished (Jhllcs from 0:1!!!" a Delaxxaie case by noting that the decisions were bEISLd on Virgin Islands and Dela“ are loud law respectively For cases arising out 01 the Virgin Islands the treatment afforded fiieamts undei territorial law continues to be of paramount importance in our anal) sis In Unztca’ Start s 1 Gatlm 613 F 3d 374 (3d C11 2010) an offieei received a tip from a reliable source that a man wag Vt alking on a street in Wilmington Delaware Vt ith a firearm in his jacket [(1 at 376 77 Based on the mans description otfiteis responded to the area wheie the infomnant indicated that the man could be found It! at 377 Officers located the man handcuffed him and patth him down finding an unlicensed handgun in Violation of Delaware 1cm Id We noted that the facts in Gatlm resembled those in Lbzles i e the sole evidence to Support the Tent stop was a tip about a firearm but nonethelees concluded that reasonable suspicion existed to frisk the defendant fox weapons [(1 at 378 79 Critieal to our analysis was the presumption under Delaware law unlike in the Virgin Islands that an indiVidual has no license to early a concealed firearm Id 1 he reliable tip coupled \\ ith the piesumption of illegality pr0\ ided officeis with reasonable suspicion to conduct an int estigatory stop within the confines of Ten} 1d at 379 It is lawful for certain individuals in the Virgin Islands to cam a firearm provided that a license is obtained See V I CODE ANN tit 23 § 454 I [MIL v recognized that the possession of a filearm in the Virgin Islands in and ofitself does not prOVide officeis with reasonable suspicion to conduct a Tel )3 atop 224 F 3d at 217 ( [A] men. allegation that a suspect possesses a fiiearm as dangerous as firearms may be, [does not] justify an officer in stopping a suspect absent the reasonable suspicion ) Indeed Virgin Islands 1am mntains no presumption that an individual lacks a pcmtit to carry a firearm Gallm 613 F 3d at 378 79 As “6 obserwd in (Jailm the GOV emment beats the burden of ptoof in the Virgin Islands that the defendant h 1d no license for a teeovued firearm Id at 379 (citing Lint“! States 1 tickle 1 l2 F 3d 626 630, 36 V I 367 (3d Cit 1997)) People Q/I/IL’ I I i Asad People (3/1716 1 I i PLfL’leI 8X 2021CR198 5X 2021 CR 199 Memorandum Opinion and Order 2024 \ I 31 PER 5229 Page 14 0t 16

Title 23 of the Virgin Islands Code] may provide authority for the proposition that the 1 egislatute

intended for law enforcement officeis to piesume illega1ity when intormed that an indiVidual who

is not obviously authorized to earry a filearm is carrying a tiieamn in public notwithstanding the

tact that the government in a Ciiininal prosecution, would hear the burden of proving that the

firearm is unlicensed, Mandi, 56 V1 at 812 and noted that ‘ 10ea1 Virgin Islands fireaim

licensure laws may not necessarily be significantly diffeient from Delawate 1an , which the Thiid

C ircuit conducted provides a presumption of illegality ’9 Id 56 V I at 812 n 13 NBXBI'th616SS

[n]otwithstanding the fact that legitimate, non frivolous a1 guments exist to depart

from L/bzles and Lem; and despite the existence of section 488 [the Virgin Islands Supreme

Couit] deeline[d] to Iesolve this issue as part of this appeal because the People have failed to

argue either before the Superior Court or in theii appellate brief that szles 01 I ems were

wrongly decided and that this Court should hold that a piesumption exists under section 488 that

an individual lacks a permit to cairy a fitearm in the Virgin Islands Id 56 V I at 812 13 In this

instance, consistent with the Viigin Islands Supieme Court’s leasoning in Muncll, the Comt

concludes that there is a presumption under Viigin Islands law that an individual lacks a license to

carry a firearm under section 488 of Title 23 of the Virgin Islands Code (hereinafter ‘Section

LL11 Is 672 F 3d at 239 40 0 In 14mm]! the Virgin Islands Supreme Court explained At first glance, it may seem that Delaware imposes greater restrictions on the carrying of concealed Weapons than the Virgin Islands in that the pertinent statute imposes numeious requirements not found in the V irgin Islands C ode such as requiring applicants to submit chaiaeter affidavits and to file proof of completion of firearms training, courses Set DEL CODE ANN tit 11 g 1441 HoweVer whi1e chapter 5 0ftit1e 23 imposes several limitations on who may attain a license to possess a firearm section 485 vests the Police Commissioner with the authmity to impose additional rules and regulations that upon approyal by the Governor shall hax e the force and effect of law We note that sex eral 0f the additional requirements found in the Delaware statute have also been adopted in the Virgin Islands but are found in these regulations rather than in the Virgin Islands Code itself Sm a g 23 V I R R § 485 6(a)(4)(D) (completion of recognized course in tiiearm safety) Paople offlzc I It Winn]! 56 VI 796 812 n 13 (2017) Peop/eoft/zel I \ 48ml Ptople affirm) I I \ Pittman SK 2071 CR 198 SR 2021 CR 199 Memo: andum Opinion and Ordtr 2024 \ I SLPE: R h Page la of 16

488 ) which unambiguously places the burden upon the inditidual to produce ex idenee that he

is entitled to so wear carry or transport the firearm pursuant to seetion 454’ in the event that the l ’1 officer discovers during the stop and search that the 1ndn1dual possesses a firearm “ Title 23

V l C § 488(b) In fact, the language under Section 488 authorizes the officer to inquire ot the

individual whether he/she has a licmse to carry the firearm, and that ‘ [i]t the person is unable to

produce such evidence the officer may then seize the firearm and arrest the person ’ 10’ Here

neither Asad nor Peterson was able to produce evidence that either possessed a license to carry the

” lhe statutes leads in its entirety as fOIIOWs (a) Any law enforcement officer who in the light of his obserx ations infomiation and experienee has a reasonable belief that (i) a person may be Vt caring carrying 01 transporting a firearm in violation of section 434 of this title (ii) by virtue of his possession ofa firearm such person is or may be presently dangerous to the olficei or to others (iii) it is impracticable under the circumstances to obtain a search warrant and (it) it is necessary for the officer's protection or the proteetion ofothers to take swift measures to discoy er whether such person is in fact, wearing carrying or transporting a firearm such officer may (1) approach the person and identify himselfas a law enforcement officer (2) request the person‘s name and address and if the person is in a \ehicle his lieenst to operate the \ ehicle and the \ ehicle's registration and (3) ask such questions and request such explanations as may be reasonably calculated to determine \\ hether the person is in fact unlawfully wearing carrying or transporting:r a firearm in yiolation of section 454 of this title and (4) it the person does not give an explanation “/11th dispels the reasonable beliefwhieh he had he may conduct a search of the person limited to a patting or frisking ofthe person s clothing in search of a firearm The police officer in acting under this section shall do so with due regard to all circumstances 01 the occasion including but not limited to the age appearance physical condition manner and sex of the person approached (b) In the event that the otficer discox ers the person to be \t earring carrying or transporting a firearm he may demand that the person produce evidence that he is entitled to so wear Larry or transport the firearm pursuant to section 454 of this title If the person is unable to produce such e\idence the offiLer may then seize the firearm and arrest the person ((3) Nothing in this section shall be construed to limit the right of any police otficei to make any other type of search seizure, and arrest which may be permitted by law Any police officer sued in a CtV i1 action for conduuing a search or seizure pursuant to this section which is alleged to be unreasonable and unlaxx ful shall upon his request be defende in said action and any appeals therefrom by the Attorney General Eyery police officer who conducts a search or seizure pursuant to this section shall \\ ithin twenty four hours after such search or seizure file a written report with the U S V i1 gin Islands Police Department (V I P D ) describing the eircumstances surrounding the search or sei7ure and the reasons therefor on a form preseribed by the Polite Commissioner Such report shall include the name of the person seaiLhed Title 23 VIC g 498 People ofrlu’ 1 I 1 Jun! People of flu’ I I 1 PL uson 8X 2021 LR 198 SK 20 [CR 199 Memorandum Opinion and Order 2024 X I SUPER w Page 16 of 16

firearm and when the 011106.15 inquixed Asad and Petelson eonfumed that they did not hm , bUCh

a lieense AS such the C 01111 finds that there was no Miranda Violation and that there “as no

i11cgality 0f the seizure of the fileann

CONCLUSION

‘11 17 Based on the foregoing the Court will deny Defendants’ motions to suppless Aceoxdingly

it is hexeby

ORDERED that Asad 8 July 21 2022 motion to suppress is DENIED filed in criminal

case numbel 8X 2021 CR 198 And it is tuxther

ORDERED that Petemon 5 Septembel 18 2022 motion to suppress filed in criminal case

number SX 2021 CR 199 is DENIED 1» 5/ DONE and so ORDERED this d0 day of April 2024

/ J / \/ ATTEST k 2 1“ J / (/ 3%! I amala Charles HAROL w L WILLOL KS \ Clerk ofthe Loan Administratixe Judge of the Superior Court

13) COLIN. C r1< S lpervisol Dated f” g %flZL IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix

People of the Virgin Islands v. Case Number: SX-2021-CR-00199 Darnley Petersen Charges: 14 V.I.C. 2253(a) - Possession Of An Unlicense Firearm 14 V.I.C. 2253(E) - Unauthorized Possession of a Firearm in a Vehicle 14 V.I.C. 2256(a) - Possession Or Sale Of Ammunition

NOTICE of ENTRY of Memorandum Opinion and Order To Robert J. Pickett, Esq. Ronald E. Russell, Esq. :

Please take notice that on April 29, 2024 a(n) Memorandum Opinion and Order Denying Motion to Suppress dated April 26, 2024 was/were entered by the Clerk in the above-titled matter.

Dated April 29, 2024 Tamara Charles : Clerk of the Court By:

Iris Cintron Court Clerk Supervisor