People of the Virgin islands v. Keelan J. Gerald

• Court: Superior Court of The Virgin Islands
• Decided: August 19, 2020
• Docket: ST-19-CR-210
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN *******

PEOPLE OF THE VIRGIN ISLANDS ) ) Plaintiff ) CASE NO ST 19 CR 210 ) V ) ) KEELANJ GERALD ) ) Defendant ) Cite as 2020 V I Super 77U ) ALEXANDRA C BYNUM ESQ JULIE SMITH TODMAN ESQ Assistant Attorney General Territorial Public Defender Virgin Islands Department of Justice P O Box 6040 34 38 Kronprindsens Gade St Thomas U S Virgin Islands 00804 St Thomas, U S Virgin Islands 00802 Attorneyfor the Defendant Attorneyfor the People ofthe Virgin Islands

CARTY RENEE GUMBS Judge

MEMORANDUM OPINION

fill BEFORE THE COURT is the Defendants Motion to Suppress filed by Defendant

Keelan Gerald (‘Gerald or Defendant’) on December 30, 20l9 In his motion, Gerald requests

suppression of all evidence seized because of an illegal seizure and search of his person, his

backpack, and lunch kit The People based the search and seizure of Gerald on the suspicion that he

was placing a leaf like green substance, which appeared to be marijuana, into zip lock bags The

People filed a response to Defendant s motion on January 9, 2020, and the matter came on for a

hearing on January [4, 2020

', 2 Based on the moving papers and the testimony adduced at the suppression hearing, this

Court finds the initial seizure was lawful and that the People 5 search of the Defendant was not a

violation of Defendant’s Fourth Amendment Rights Therefore, this Court will deny Defendant s

motion to suppress the evidence People v Keelan Gerald (ite as 2020 v1 Super 77U Case No ST 19 CR 210 Memorandum Opinion

I FACTUAL BACKGROUND

¢3 On September 5, 2019, at approximately 5 00 pm, Officer Aliek Wescott, along with

Officer Shakim Mike, Officer Kyle Gabriel Officer Teshaun Adams, and Detective Ivan

Christopher, all of whom were assigned to the Special Operations Bureau (SOB) of the Virgin

Islands Police Department, were conducting a routine community oriented policing operation,

known as a walk and talk, of Oswald Harris Court housing community (Mot Hr g Tr 10)

Oswald Harris Court is known to be a high crime area where there are many instances of drug

trafficking as well as discharging of firearms (Mot Hr g Tr 9) Officer Wescott testified that he

saw a male wearing a blue shirt and a black hat sitting on a bench located between Oswald Harris

Court Building #1 and Building #2 (Mot Hr g Tr l 1) Police later identified this male as Keelan

Gerald

1] 4 Officer Wescott testified that from approximately 10 to 15 feet away, he observed Gerald

putting what appeared to be a green leaf like substance into a zip lock bag in plain View (Mot Hr’g

Tr 19) In order to ensure the safety of himself and the other officers Officer Wescott approached

Gerald and directed him to put his hands on his head (Mot Hr g Tr 20) Officer Wescott testified

that once he approached, he observed that Gerald had what appeared to be one large zip lock bag of

marijuana in his hand and multiple empty smaller (dime sized) zip lock bags on his lap, and

appeared to be putting the green leaf like substance into the smaller bags from the larger one

(Mot Hr’g Tr [2) Gerald later testified that he had one large zip lock bag of marijuana in his hand

and two empty smaller (dime sized) zip lock bags on his lap (Mot Hr g Tr 35) Officer Wescott

further stated that he asked the Defendant if he had any other narcotics on his person The

Defendant replied, No, I just came here to smoke a joint ” (Mot Hr g Tr l4)

2 People v Keehm Gerald Cite as 2020 v1 Super 77v Case No ST 19 CR 210 Memorandum Opinion

1] 5 At that point, Officer Wescott patted down the Defendant and recovered some money from

Defendant 3 left pants pocket as well as a clear latex glove from his rear left pants pocket

(Mot Hr g Tr 25) Officer Wescott then searched the latex glove and found a clear plastic bag of

crack cocaine inside the glove Id Officer Wescott then searched Defendant’s backpack and lunch

kit He recovered one clear plastic bag containing multiple zip lock bags of crushed tobacco a black

scale, glass jars, and one pack of Apple brand zip lock bags The lunch kit contained small empty

zip lock bags, a thermos with more small empty zip lock bags inside of it, and three more small

empty zip lock bags which were filled with the green leafy substance (Mot Hr’ g Tr l7)

‘6 The green leaf like substance tested positive for marijuana and weighed approximately 13 1

grams The white rock like substance tested positive for crack cocaine and weighed approximately

3 4 grams Gerald was advised of his Constitutional rights and arrested for possession of a

controlled substance with intent to distribute

[1 LEGAL DISCUSSION

A Standard for Analyzing a Motion to Suppress

1| 7 The proponent of a motion to suppress has the burden of establishing that his own Fourth

Amendment rights were violated by the challenged search or seizure ” United States v Murray,

2010 WL 3069485 at *3 (D V I 2010) (quoting Rakas v [limozs 439 U S 128 132 (1978) Ifthe

search or seizure is warrantless, the burden shifts to the People to demonstrate that the search or

seizure was permissible under an exception to the Fourth Amendment’s warrant requirement Under

the Fourth Amendment people have the right “to be secure in their persons, houses against

unreasonable searches and seizures ’ U S Const amend IV, Terry v Ohio, 392 U S l, 9 (1968)

(adding that this right of personal security belongs as much to the citizen on the streets” as to a

citizen in her home) In Thomas v The People of the Virgin Islands, quoting the U S Supreme

3 People v Keelan Gerald Cite as 2020 V I Super 77U Case No ST 19 CR 210 Memorandum Opinion

Court, the Virgin Islands Supreme Court noted that searches conducted without a warrant are ‘ per

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

well delineated exceptions ’ See Thomas v People of the Virgin Islands, 63 VI 595, 605 (VI

2015) (quoting Katz v Umted States 389 U S 347 357 (1967) '

1] 8 The Fourth Amendment analysis typically proceeds in three stages First, the Court asks

whether a Fourth Amendment event, such as a search or a seizure, has occurred Next, the Court

considers whether that search or seizure was reasonable If the search or seizure was unreasonable,

the Court must then determine whether the circumstances warrant suppression of the evidence

People of the V! v Graham No SX [8 CR 130 2020 VI LEXIS 12 (Super Ct Feb ll 2020)

(quoting United States v szth 575 F 3d 308 312 13 (3d Cir 2009)) In order to pass

constitutional muster, a warrantless search must be shown to fall within one of the few narrowly

defined exceptions to the warrant requirement Government v Fabian: Ogno, 20 V I 404 (Terr Ct

1984) However, while the Fourth Amendment ensures an individual's rights to be secure

unreasonable search and seizures, it does not require a police officer to ignore a possible crime

People of the V I v Archibald 50 VI 74 84 (Super Ct 2008) (quoting United States v Chabot

531 F Supp 1063 (DVI 1982))

B Decriminalization of Marijuana Does Not Affect Analysis on the Reasonableness of the Seizure

1| 9 The issue here is whether the decriminalization of marijuana has an effect on this seizure

Two years ago, the Virgin Islands Supreme Court addressed this exact question in People v Looby,

2018 WL 3005933 *5 (2018) when they searched through the legislative history and text of Act

No 7700 In rationalizing the decriminalization of marijuana, the Legislature reasoned that it would

' Courts hold this protection in no higher regard than when the search in question is executed at the home of the defendant noting the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed United States v Mallory 765 F 3d 373 382 (3d Cir 2014) (quoting Payton v New York 445 U s 573 590 (1980) 4 People v Keelan Gerald Cite as 2020 V I Super 77U Case No ST 19 CR 210 Memorandum Opinion

free up criminal justice resources to deal with more serious crimes, reduce court costs in

prosecuting marijuana possession, and considered the potential health benefits of marijuana 2014

V I Sess Laws 191, § 2(a) However, the legislature concluded, as other states have concluded, that

while the possession of marijuana of one ounce or less no longer gives the officers the power to

arrest it still remains unlawful People v Ramos 122 A D 3d 462 465 (N Y App lst Dep t2014)

(noting that an officer’s suspicion that a driver is smoking marijuana can justify a traffic st0p) 2

Furthermore, marijuana remains a Schedule I controlled substance under Title 19, §595 of the

Virgin Islands Code Looby 2018 WL 3005933 at *5 Section 607a(b)(2) allows for the police to

confiscate the marijuana when it proscribed any person who possesses one ounce or less of

marijuana is subject to forfeiture of the contraband Id Further, §607(a)(b)(3) provides that any

person under the age of eighteen at the time of the offense, who possesses one ounce or less of

marijuana is subject to forfeiture of the contraband [d To hold otherwise would undemnne the

intent of the legislators in providing a mechanism for the officers to “ticket offenders and seize

contraband as evidence they suspect of violating 19 V I C §607(a) or 20 V I C §493 ”3 People v

Cannergezter 65 VI [14 134 (Super Ct 2016)

C Officers’ Interaction with Defendant Amounts to a Seizure Based on Articulable Facts That Criminal Activity was Afoot

1] 10 Courts determine whether a seizure took place based on an exertion of the police use of

physical force or submission to a Show of authority Brendlm v (al, 551 U S 249, 250 (2007), The

question in every case, based from the Defendant’s perspective, is whether a reasonable person

would feel free to leave or decline the officers request or otherwise terminate the encounter given

See also State v Rand} J 150 N M 683 693 (N M Ct App 20l l) (holding that the odor of marijuana emanating from the vehicle combined with the odor of marijuana would lead a reasonable officer to believe he was driving under the influence) Jenkins v State 970 A 2d 154 158 159 (Del 2009) (Holding that Jenkins behavior and the strong marijuana odor were sufficient to establish probable cause to arrest Jenkins for Driving Under the Influence)

5 People v Kaela" Gerald Cite as 2020 V I Super 77U Case No ST 19 CR 210 Memorandum Opinion

the circumstances United States v Drayton 536 U S 194 202 (2002) Florida v Bostzck 501 U S

429, 436 (1991) (Holding that the policc’s conduct controls whether a reasonable person on a bus

would feel free to leave) People v Prentice 64 VI 79 88 (Super Ct 2016)

‘| 11 In the present case, the Defendant was clearly seized Officer Wescott and his fellow

officers approached Gerald, ordered Gerald to put his hands on the top of his head Gerald

immediately complied and was then searched If a reasonable person in the Defendant’s position

would not feel that they were free to leave at their will, we conclude that the SOB officers

interaction with the Defendant amounts to a seizure

D Officer Wescott had Requisite Reasonable Suspicion to Search and Seize Defendant’s Person

'.| 12 The Defense argues that officers lacked requisite reasonable suspicion to conduct a search

under Terry v Ohio 392 U S l (1968) The Fourth Amendment protects people, not places, and

wherever an individual may harbor a reasonable "expectation of privacy," he is entitled to be free

from unreasonable governmental intrusion Terry v Ohio, 392 US 1,9 (1968) Accordingly,

the Fourth Amendment protects a person's expectations of privacy that society has recognized as

reasonable Simmonds v Virgin Islands 53 V l 549, 574 (VI 2010) (Swan, J dissenting)

Defendant was sitting in an open area on a public bench He was putting marijuana into zip lock

bags in plain View It was 5 00 pm, a time where it is not unreasonable to expect others to come

home from their jobs and pass by the bench, especially since it is between two apartment buildings

Since a reasonable person would not expect privacy in such an area, the Defendant did not harbor a

reasonable expectation of privacy on the bench at Oswald Harris Court

1] 13 Under Terry v Ohio 392 U S [,9 (1968), an officer may, consistent with the Fourth

Amendment, conduct a brief investigatory stop when the officer has a reasonable, articulable

suspicion that criminal activity is afoot In determining whether the officer acted reasonably in such 6 People v Keelan Gerald Cite as 2020 V I Super 77U Case No ST 19 CR 210 Memorandum Opinion

circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or

"hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light

of his experience Id at 27 The Defense argues that Officer Wescott had no basis for reasonable

suspicion to search the Defendant The Defense proposes that the officer “provided no facts to

support removing items from Mr Gerald s person and that since Officer Wescott did not test the

marijuana, and only observed a green leaf like substance from approximately ten to fifteen feet

away, he had no basis to search Defendant The Defense argues that there was no field test of the

substance and therefore there is no reasonable suspicion to believe that the substance was

marijuana To support his argument, the Defense states that if the officer’s suSpicion is without

factual foundation and articulable facts, then reasonable suspicion is lacking; and no degree of good

faith, hunch, or intuition can substitute for it United States v Smith, 799 F 2d 704 (11th Cir

1986)

1] 14 This Court disagrees with the Defense 3 argument In order to satisfy the standard of

reasonable suspicion, it is not necessary that the suspect actually has done or is doing anything

illegal; reasonable suspicion may be based on acts capable of innocent explanation People of the

V] v Thomas 2014 V I LEXIS 28 (Super Ct 2014) (quoting ( mted States v Whitfield 634 F 3d

741 744 (3d Cir 2010) (citing Lmted States v Ialentme 232 F 3d 350 356 (3d Cir 2000)) Officer

Wescott stated that he had training in the recognition of marijuana and also the packaging used for

the distribution of marijuana (Mot Hr’g Tr 6) The area that Defendant was sitting is a high crime

area The Defendant s gestures appeared to be the actions of someone who was preparing marijuana

for distribution and sale Taking an objective look at the totality of circumstances supports a finding

of reasonable suspicion, hence the Court concludes that Officer Wescott had the requisite

reasonable suspicion and probable cause to search and seize Defendant’s person

7 People v Keelan Gerald Cite as 2020 V I Super 77U Case No ST 19 CR 210 Memorandum Opinion

1] 15 Officer Wescott testified that he initially observed the Defendant from a ten fifteen feet

distance (Mot Hr’g Tr 19) Officer Wescott further testified that it was from that distance that he

was able to see the Defendant sitting on a bench and putting a green leafy substance into a zip lock

bag Id This observation constitutes reasonable suspicion that criminal activity is afoot Officer

Wescott further testified that once he saw the green leafy substance, he went to engage Id Officer

Wescott testified that once he was close to the Defendant, he was able to see that Gerald had one

large zip lock bag of marijuana in his hand and what appeared to be several small baggies on his

lap (Mot Hr’g Tr 12) It is at this time that Officer Wescott’s reasonable suspicion ripened into the

requisite probable cause

E Officer Wescott did not Violate Defendant’s Fourth Amendment Rights by Removing Glove with Crack Cocaine from Defendant’s Pocket

‘16 The Defense argues that because nothing in the Defendant 5 pockets felt like a weapon,

Officer Wescott violated Defendant s Fourth Amendment Rights by removing the items from his

pockets If a police officer lawfully pats down a suspect's outer clothing and feels an object whose

contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's

privacy beyond that already authorized by the officer's search for weapons, if the object is

contraband, its warrantless seizure would be justified by the same practical considerations that

adhere in the plain View context Minnesota v Dickerson, 508 U S 366, 375 (1993) In Dickerson,

the Supreme Court held that officers violated Defendant’s Fourth Amendment Rights when they

retrieved a lump of cocaine from respondent's pocket The Court reasoned that if police are lawfully

in a position from which they View an object, if its incriminating character is immediately apparent,

and if the officers have a lawful right of access to the object, they may seize it without a warrant 1d

The Court further stated that regardless of whether the officer detects the contraband by sight or by

touch, however, the Fourth Amendment's requirement that the officer have probable cause to 8 People v Keelan Gerald Cite as 2020 V I Super 77U Case No ST 19 CR 210 Memorandum Opinion

believe that the item is contraband before seizing it ensures against excessively speculative seizures

The Dickerson Court concluded that because the incriminating character of the contraband was not

immediately apparent to the officer, and he was only able to determine that the item was contraband

after manipulating it, the search was invalid

T 17 Unlike Dickerson, where there was no probable cause to search Defendant, Officer Wescott

testified that he had already seen three zip lock bags and marijuana on the Defendant 5 lap Officer

Wescott also testified that he was trained in the Police Academy to recognize and identify different

drugs, as well as paraphernalia associated with drug trafficking (Mot Hr g Tr 6) Officer Wescott

further testified that he was trained to recognize marijuana, both in its earth and unearthed form

(Mot Hr’g Tr 7) It was only after observing the three zip lock bags and the marijuana that Officer

Wescott searched Gerald 5 person (Mot Hr g Tr 13) By the time the search of Gerald 5 person

took place, it was apparent that a crime had been committed Officer Wescott had probable cause to

search the Defendant 8 pockets, thus Officer Wescott did not violate Defendant’s Fourth

Amendment Rights by removing the glove with crack cocaine from Defendant 3 pocket

F Officer Wescott did not Violate Defendant’s Fourth Amendment Rights by searching Defendant’s Backpack and Lunch Kit

1! 18 Under Terry v Ohio, 392 U S 1,9 (1968), an officer may, consistent with the Fourth

Amendment, conduct a brief investigatory stop when the officer has a reasonable, articulable

suspicion that criminal activity is afoot Officer Wescott searched Gerald’s backpack once he had

already recovered the marijuana and the cocaine as well as the drug paraphernalia He therefore had

probable cause to believe that there was contraband in the backpack and in the lunch kit Officer

Wescott had probable cause to believe that there was contraband in the backpack and in the lunch

9 People v Keelan Gerald Cite as 2020 V I Super 77U Case No ST 19 CR 210 Memorandum Opinion

kit, therefore the search of Defendant s backpack and lunch kit did not violate the Defendant s

Fourth Amendment Rights

III CONCLUSION

11 19 Based on the foregoing reasons, this Court is satisfied that the People have met their burden

in demonstrating that the search of the Defendant and his backpack were reasonable Since the

People believed that the Defendant was engaging in illegal activity and because the Defendant was

partaking of this activity in a public place and had no reasonable expectation of privacy, the search

of the Defendant was not unconstitutional Furthermore, because the Pe0p1e had probable cause to

believe that Defendant s backpack contained contraband, the search of the backpack was not a

violation of the Defendant 5 Fourth Amendment rights

Accordingly, the Court will deny the Defendant s motion to suppress the evidence seized

An Order accompanying this Memorandum Opinion follows / fl / c, / Dated August 1% 2020 mg (”i Rene G Party udge of the Sn erior Court \ of the Virgi ands \

ATTEST Tamara Charles Clerk of the Court

BYQMMM for Lori Boynes Tyson Court Clerk Supervisor E / 2. 0 .2. 02. O

10 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

PEOPLE OF THE VIRGIN ISLANDS ) ) Plaintiff ) CASE NO ST l9 CR 210 ) V ) ) KEELAN J GERALD ) ) Defendant ) Cite as 2020 V I Super 77U ) ORDER

AND NOW, for the reasons stated in the accompanying Memorandum Opinion, it is

hereby

ORDERED that Defendant’s motion to suppress is DENIED, and it is further

ORDERED that copies of this Order shall be distributed to Assistant Attorney General

Alexandra C Bynum, Esquire and Julie Smith Tod flan: Esquire

Dated August Fl 2020 ‘'\ Rene ‘ u s Carty ATTEST udge of the rior Court Tamara Charles of the Vir Islands Clerk of the Court

By W ‘or Lori Boynes Tyson Chief Deputy Clerk 3 / 2Q 2020