People of the Virgin Islands v. Kareem B. Smith

• Court: Superior Court of The Virgin Islands
• Decided: October 26, 2021
• Docket: SX-19-CR-69
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLA NDS

DIVISION OF ST CROIX

PEOPLE OF THE VIRGIN ISLANDS ‘ Criminal No SX 19 CR 69

Plaintiff Charge(s)

! Unauthorized Possession of a v Firearm By Felon 14 VI C § 2253(a) Unauthorized Possession of a KAREEM B SMITH Firearm in a Vehicle 14 V I C § 2253(6) Defendant Possession of Ammunition 14 V I C § 2256(a) Possession of a Controlled Sub stance with Intent to Distribute J 19VIC § 604(a)(1]

Cite as 2021 VI Super 105U

Attorney Amelia B Joseph. Esq , Office of the Territorial Public Defender #1 B Clifton Hill 2"CI Floor Christiansted St Croix U S Virgin Islands 00822

Attorney Amie Simpson, Esq Assistant Attorney General V I Department of Justice #213 Estate La Reine #6151 RRl St Croix U S V1 00850 Virgin Islands 00820

MEMORANDUM OPINION ORDER Jomo Meade. Judge (II 1 THIS MATTER is before the Court on Defendants Motion to Sup press evidence recovered by law enforcement officers after he was stopped for administrative inspection of the vehicle he was operating and his 5:351:25]31$““0;:fifigTd?IIhith Cite as 2021 v1 Super 105v sx 2019 CR 00069

person and personal effects were seized and searched For reasons set forth below the Motion to Suppress is GRANTED

FACTUAL BACKGROUND

‘II 2 Defendant Kareem Smlth operates a commercial vehicle as an em

ployee of Marco St Croix Inc a Virgin Islands commercial enterprise On

April 10 2019 he was driving his employer 8 Mack truck on Manning Bay

Road in the vicinity of the Henry Rohlsen Airport At the same time Motor

Carrier Safety Coordinator Charles Moorhead in the company of Sgt Al

exander Moorhead and Sgt Samantha Smith officers of the Virgin Islands

Police Department ( VIPD ) were conducting motor carrier safety inspec

tions in the area The officers commanded the Defendant to pull the truck

over to the side of the road to the inspection area He complied Motor

Carrier Coordinator Charles Moorhead and Sgt Alexander Moorhead ap

proached the vehicle

‘I[ 3 The sequence of events immediately following the stop of the truck

is unclear because the testimony of the Witnesses exhibits sharp disputes

and contradictions Charles Moorhead testified that he approached the

truck introduced himself and informed the Defendant of the kind inspec

tion they were about to conduct During the Introduction Sgt Alexander

Moorhead stopped Mr Charles Moorhead from assisting in the inspection

took him aside and instructed Mr Charles Moorhead to stand by and

watch while Sgt Moorhead showed him the ropes in conducting

2 3:33;;513:“ 0‘1;ifizfiglrldiinith Cite as 2021 V] Super 1050 sx 2019 CR 00069

inspections Charles Moorhead stood back and observed while Sgt Moor

head interacted with the Defendant Some moments later Sgt Moorhead

came back to inform Charles Moorhead that he smelled marijuana and

returned to continue the interaction with the Defendant

‘JI 4 Sgt Moorhead testified that he pulled the truck over and directed

the driver to take the vehicle to the inspection site where Mr Charles Moor

head was conducting the inspections Sgt Moorhead went to assist

Charles Moorhead with the inspection It was upon observing the interac

tion between the Defendant and Mr Charles Moorhead that Sgt Moorhead

detected the odor of marijuana at which time he took over the inspection

Sgt Moorhead went on to ask the Defendant whether the Defendant had

any marijuana and the Defendant stated he had a jomt Sgt Moorhead

asked the Defendant to retrieve the joint and after some delay the Defend

ant retrieved a backpack from the cabin of the truck Sgt Moorhead di

rected the Defendant to open the backpack and place its contents on the

fender 0f the truck A sum of U S currency and marijuana contained

within a zip 10c bag that was wrapped in a shopping bag were among the

items removed from the backpack

‘11 5 The Defendant testified that Sgt Moorhead flagged him down and

instructed him to pull the truck to the side of the road When Defendant

brought the truck to a step Sgt Moorhead approached and asked the dc

fendant to produce his license registration and insurance which the De

fendant provided Charles Moorhead then instructed the Defendant to

3 335:2;3111;]“0:;iriggegnrmdsxrnuh Cite as 2021 v1 Super 10w sx 2019 CR 00069

operate some of the truck s utility instruments including the wipers, lights

indicators and horn After Defendant shut off the truck he noticed that

Sgt Moorhead whispered something to Charles Moorhead Subsequently

Sgt Moorhead returned to the truck and ordered the Defendant out of the

truck to which the Defendant protested Sgt Moorhead then asked if he

had any drugs or anything in the truck to which the Defendant answered

No Sgt Moorhead then instructed the Defendant to come out of the

truck and bring anything that he has in the truck The Defendant came

out of the truck and brought his backpack Sgt Moorhead instructed the

Defendant to place the items from the backpack on the fender of the truck

and empty his pockets The Defendant complied Sgt Moorhead then

frisked the Defendant after asking the Defendant whether he had moved

all items from his pockets

9! 6 The events which transpired subsequent to the seizure and search

of the backpack appear to be less in dispute Sgt Moorhead instructed the

Defendant to call his employer The Defendant got on the phone and was

pacing back and forth Sgt Moorhead then instructed the Defendant ob

serve him count the money retrieved from the Defendant s backpack but

the Defendant appeared to ignore this directive as the Defendant contin

ued to pace back and forth The officers interpreting the Defendant 5 pac

mg as his preparation to flee the scene physically restrained the Defend

ant either to step him from pacing back and forth or to arrest him for the

possession of the marijuana that was found in his backpack In the

4 People of the v1 v Kareem Smith Cite as 2021 v1 Super 105v 3332322385?“ 0“” process of physically restraining the Defendant Sgt Moorhead did some

thing that he called taking Mr Smith down to the ground and putting

his body weight on the Defendant until Sgt Samantha Smith could com

plete the process by putting handcuffs on the Defendant When this phys

ical altercation ended the officers saw a firearm on the ground

(11 7 The Defendant was charged with Possession of a Firearm and P05

session of a controlled substance with intent to distribute

THE LEGAL STANDARD

‘11 8 The Fourth Amendments prohibition against unreasonable

searches and seizures applies to administrative inspections of commercial

property as well private homes See U City of Seattle 387 U S 541

543(1967] However an exception to the probable cause and warrant re

quirement has been carved out for administrative inspection of closely

regulated industries Donovan v Dewey 452 U S 594 602 (1981) A

closely regulated industry is one that has a long history of government

oversight New York v Burger 482 U S 691 699 (1987) The owner of a

business has an expectation of privacy in commercial property Which so

ciety is prepared to consider reasonable Katz v United States 389

U S 347 361(1967) This expectation of privacy ex15ts not only with re

spect to traditional searches conducted for gathering criminal evidence but

also with respect to administrative inspections designed to enforce regula

tory statutes Marshall 0 Barlow s Inc 436 U S 307 312 313(1978) Reg

ulatory schemes are allowed an exemption from the probable cause and

5 33:2:31:1;v10:3ISifigrrud2:001 Cite as 2021 v1 Super 1050 sx 2019 CR 00069

warrant requirement in the inspection of commercial property on the

premise that the owner of commercial property has a lesser expectation of

privacy than a homeowner and the government has a heightened interest

in regulating the property Burger at 699 The exemption from the need for

probable cause and the warrant which is accorded to searches made for

the purpose of administrative regulation is not accorded to searches that

are not made for those purposes Whren v United States 517 U S 806

811 812 (1996] (citing New York 0 Burger 482 U S 691 702(1987] and

Colorado v Bertme 479 U S 367 371(1987)]

ANALYSIS

A Administrative Stop and Inspection of the Truck

‘11 9 When law enforcement officers Alexander Moorhead and Samantha

Smith and motor carrier safety coordinator Charles Moorhead ordered the

Defendant Kareem Smith to bring the vehicle he was operating to a stop

for a roadside inspection the actions of the officers constituted a seizure

for purposes of the Fourth Amendment See Florida 0 Roger 460 U S 491

502 (1983] (finding that a person has been seized when circumstances

surrounding his encounter with law enforcement authority would lead a

reasonable person to believe that he is not free to leave) The people argue

that this seizure was lawful because pursuant to 20 V I C §§ 900 902 and

49 CFR §§ 300 399 the officers are authorized to stop and inspect com

mercial vehicles at any time But the fact that the Virgin Islands

6 People of the V] v Kareem Smith Cite as 2021 v1 Super 105v ¥£§3§%t%%'$3€é3‘°“°rd” legislature has enacted statutory provisions Which permit warrantless ad

ministrative inspection of commercial property does not mean that officers

have unbridled discretion to seize and inspect commercial property at any

time The U S Supreme Court has found that that the owner of commer

cial property has a reasonable expectation of privacy even though there is

a lesser expectation of privacy in commercial property than in the home

Donovan v Dewey 452 U S 594 598 99(1981) See U City of Seattle at

543 Accordingly regulatory schemes must be tailored in observance of

the Fourth Amendments protection of that right Burger at 702 703 In

Burger the Court went to great lengths to show that not all commercial

activity subject to governmental regulation qualify as closely regulated in

dustries The search in Burger involved the search and inspection of an

automobile Junkyard The Court stated that although the automobile in

dustry had been regulated for 140 years it did not qualify as a closely reg

ulated industry However the Court stated that this was not so much

about automobiles but about junk and the junk business qualified as a

closely regulated industly because of its long history of govemment over

sight Although the right to privacy in commercial property is most atten

uated in closely regulated industries where there is the least expectation

of privacy a statutes inspection program and regulatory scheme must

provide adequate standards and safeguards to satisfy constitutional re

quirements Id Even in the context of a closely regulated business war

rantless inspection will be deemed to be reasonable only so long as three

7 People at the v1 v Kareem Smith Cite as 2021 v1 Super 1051} §§§3§2¥$§¥63€é§°n 0“” criteria are met First there must be a "substantial government interest

that informs the regulatory scheme pursuant to which the inspection is

made Second the warrantiess inspections must be necessary to further

the regulatory scheme Third the statute s 1nspection program in terms

of the certainty and regularity of 1ts application must provide a constitu

tionally adequate substitute for a warrant Donovan v Dewey 452 U S at

600 602 To satisfy this standard the regulatory scheme must advise the

owner of commercial property that the inspection or search is being made

pursuant to the law Marshall v Barlow s Inc 436 U S at 323 The stat

ute must be sufficiently comprehensive and defined that the owner of com

mercial property cannot help but to be aware that his property Will be sub

Ject to periodic inspection undertaken for a specific purpose Donovan v

Dewey at 600 The regulatory scheme must be carefully lunited in time

place and scope so as to limit the discretion of inspectors United States 1)

Bstell 406 U S 311 315 (1972)

(ll 10 Title 20 V I C § 901 identifies the personnel who are authorized to

perform inspections of commercial motor vehicles drivers and motor car

tiers for compliance with safety regulations However there is nothing in

this provision which state how these inspections are to be performed Sec

tion 900 adopted selected parts of the Code of Federal Regulations and

explicitly states that vehicles below the weight rating of 26 001 pounds are

exempt from regulation except for vehicles carrying hazardous materials

or vehicles used to transport 16 or more persons including the driver The

8 People or the V] v Kareem Smith Cite as 2021 w Super 105u mafié‘t'l‘ogé’é’é’” 0“” People did not identify any specific provisions of the statute or the selected

provisions of the Code of Federal Regulations to support their position that

the officers are authorized to stop any commercial vehicle at any time

Neither did the People present evidence of the regulatory system by which

the administrative inspections of commerc1al vehicles in the Virgin Islands

are to be performed Where Congress has authorized inspection but made

no rules governing the procedures that inspectors must follow

the Fourth Amendment and its various restrictive rules apply Colonnade

Corp v United States 397 U S 72 77 {1970] In such cases a warrant

may be necessary to protect the owner from the 'unbridled discretion of

executive and administrative officers' Marshall 0 Barlows Inc at 323

Warrantless inspections of commercial property may be constitutionally

objectionable if their occurrence is so random infrequent or unpredicta

ble that the owner for all practical purposes has no real expectation that

his property will from time to time be inspected by government offi

cials Id The established law does not support the People 3 position which

tend to suggest that the officers can arbitrarily stop and inspect commer

cial vehicles simply because they are commercial vehicles Moreover the

People did not present any evidence of the rules of a regulatory scheme by

which this Court could determine whether the stop of the truck was con

stitutionally permiss1ble The People did not meet their burden to establish

that the stop of the truck was reasonable

9 People at the V] v Kareem Smith Cite as 2021 V1 Super 1051; ?;"SSEETE‘A'TBEEéSm 0““ B Seizure and Search of the Defendant s Person and Personal Ef

fects

‘11 11 The criminal charges in this case do not arise out of evidence of

criminal conduct discovered incidental to a regulatory inspection of com

mercial property but out of a seizure and search of the Defendant 3 person

and personal effects Even though a statutory scheme provides for a search

of a closely regulated industry without probable cause or warrant require

ment this permission to search does automatically extend to people en

gaged in the industry Shoemaker v Handel 795 F 2d 1136 1142 (3 d Cir

1986) It follows that even if the stop of the Mack truck in this case were

constitutionally permissible under an administrative regulatory scheme

the officers would need an independent basis of probable cause to arrest

and search the Defendant The People contend that Sgt Moorhead had

probable cause to inquire into the possession of marijuana First because

he had authority to stop the truck for an administrative inspection and

the provisions of the Code of Federal Regulation Which authorizes the in

spection prohibit the possession of marijuana in the cabin of a commercial

vehicle Second the People contend that Sgt Moorhead had probable

cause to search the truck when he detected the odor of marijuana as he

approached the truck at the driver s side door Neither of these contentions

support a lawful basis of probable cause

‘11 12 An administrative inspection is the inspection of business premises

or commercial property conducted by authorities responsible for enforcing

10 People or the V] v Kareem Smith Cite as 2021 VI Super 1050 ?;“éfifl‘élé‘filbgé’ég‘” 0“" a pervasive regulatory scheme Donovan u Dewey at 599 (Dewey in

volved the unannounced inspection of a mine for compliance with health

and safety standards) A statute authorizing a search whlch can uncover

no admimstrative violations is not sufficiently limited in scope to avoid the

warrant requirement Burger at 723 An inventory search must not be a

ruse for a general rummaging in order to discover incriminatlng evidence

Floridav Wells 495 U S 1 4 (1990] The constitutional valldity of a war

rantless inspection of commercial property would only be upheld if the

inspection does not appear to be a pretext for obtaining evidence of the

violation of penal laws Burger at 716 717 It would appear that in order

to satisfy constitutional sufficiency statutory regulatory schemes must be

confined to the administrative purpose that they are meant to fulfill The

government may not use an administrative inspection scheme to search

for criminal violations Michigan v Clifford 464 U S 287 292 [1984) 'flfle

20 V I C § 901 authorizes agents of the government to inspect commercial

vehicles for compliance with safety regulation It is evident that if the reg

ulatory scheme under this provision gave Sgt Moorhead or any other agent

of the government the authority to inquire into or search for evidence of

criminal conduct as part of the regulatory scheme it would be offensive to

the Fourth Amendment Clearly no lawful basis of probable cause to

search for criminal violation may be lawfully crafted out of an administra

tive regulatory scheme

11 ffiéfriiéifiwo‘;ix’fiifETdiT‘t“ Cite as 2°21 W 5“” “’5” sx 2019 CR 00069

‘I[ 13 Sgt Moorhead testified that When he detected the odor of marijuana

he had a conversation with the Defendant about the possession of mariju

ana inside a commercial vehicle at which point the Defendant told the of

ficer that the Defendant had a joint Sgt Moorhead further stated that he

requested that the Defendant retrieve the item that would be the joint

After some delay the Defendant eventually brought a backpack out of the

cabin of the truck Sgt Moorhead commanded the Defendant to remove

the items from the backpack and place them on the fender of the truck

The items included marijuana and a sum of money The marijuana was

inside a zip 10c bag that was wrapped inside a shopping bag

‘1! 14 While Sgt Moorhead testified that his training and experience ena

bles him to detect the smell of marijuana the People provided no evidence

that Sgt Moorhead has had any specialized form of training or natural

attributes which would enable him while standing outside the cab of a

truck to smell marijuana that was inside a zip 10c bag wrapped in a shop

ping bag placed inside a backpack that was in the cabin of the truck

Moreover it is quite interesting that Coordinator Charles Moorhead who

testified that he was first to approach the truck and was talking to the

Defendant through the open window of the cabin also testified that the

did not detect the smell of marijuana Granted the training experience

and natural attributes of coordinator Charles Moorhead and Sgt Moor

head may be significantly different However this Court as the trier of

fact does not find the testimony regarding the smell of marijuana to be

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