IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN
PEOPLE OF THE VIRGIN ISLANDS )
Plaintiff ;
v ) CASE NO ST 22 CR 085
KYMANIT DOLPHIN ;
) Cite as 2022 V I Super 88U Defendant )
)
MEMORANDUM OPINION
111 BEFORE THE COURT is a Motion to Suppress filed by Defendant Kymani Dolphin (“Dolphin’ or “Defendant ’) on September 20, 2022 The People of the Virgin Islands (the “People”) did not file an opposition and a suppression hearing was conducted on October 7, 2022 Assistant Attorney General John Barraco, Esquire represented the People and Territorial Public Defender Mary Ann Matney, Esquire represented Defendant, Kymani Dolphin, who was also present Defendant’s motion seeks to suppress all evidence seized from a search of his person and backpack and any statements made to law enforcement on Sunday, March I3, 2022, due to an illegal seizure The Court heard the sworn testimonies of Virgin Islands Police Department (‘ VIPD”) Officer Ashlyn Xavier (“Officer Xavier”), VIPD Forensics Bureau Detective Vernon Carr (“Detective Carr ), Virgin Islands Port Authority Officer Jeremy Charleswell (“Officer Charleswell”), and Ms Abena Steward (“Steward”) For the following reasons, Defendant’s motion will be denied I FACTUAL BACKGROUND '.|2 On March 13, 2022, at approximately 8 47 am, Officer Ashlyn Xavier was dispatched to Altona and Welgunst, St Thomas, Virgin Islands, after an anonymous 911 call was placed
People ofthe Virgin Islands v Kymam Dolphm Cite as 2022 V I Super 88U Case No ST 22 CR 085 Memorandum Opinion
reporting that there was a boy and girl fighting The caller also described two vehicles, a black Acura jeep and a Honda vehicle Upon arrival, Officer Xavier made contact with Detective Vernon Carr of the VIPD Forensics Bureau, who arrived first Detective Carr testified that a black Acura jeep and a Honda vehicle were attempting to leave the area which led him to stop both parties Detective Carr stopped the three individuals, later identified as Kymani Dolphin, Abena Steward, and Jasmine Gregoire 113 Detective Carr testified that after he had stopped the Acura, Dolphin exited the vehicle and started walking towards Detective Carr at a ‘ very brisk pace At that point, and for the officer 8 safety, Detective Carr patted down the Defendant and discovered an empty firearm magazine He testified he immediately secured the Defendant and called for assistance because he was there by himself Shortly thereafter, Officer Jeremy Charleswell with the Virgin Islands Port Authority arrived Officer Charleswell testified that once he anived, he placed the Defendant in handcuffs and Detective Carr advised Dolphin of his constitutional rights 114 Detective Carr testified he then approached the Acura jeep and asked the driver and owner of the vehicle, Ms Abena Steward, if he can search the vehicle and she consented While conducting a search inside the vehicle, Detective Carr found a bag of clothes on the passenger side of the vehicle which belonged to the Defendant Detective Carr stated he then went back to his vehicle to retrieve his gloves and while walking to his vehicle noticed a Michael Kors backpack in the grass along the roadway Detective Carr stated the backpack was about 10 to 15 feet away from the Acura jeep lying in tall grass He asked Steward if the backpack belonged to her and she stated “no ’ Detective Carr then asked the Defendant if he owned the backpack, to which the
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Defendant replied that it was “probably abandoned property ’ Detective Carr then searched the Michael Kors backpack and found a firearm T5 At that point, Detective Carr processed the scene and collected the brown Michael Kors backpack Officer Xavier advised the Defendant of his constitutional rights and he agreed to answer Officer Xavier’s questions Dolphin told Officer Xavier the Michael Kors bag was his and that it contained “weed and a gun ” When asked if the firearm belonged to him, the Defendant stated, “yes ” When asked whether he had a license to carry the firearm, the Defendant stated, no ’ The investigation revealed the bag contained a fully loaded Smith and Wesson SD9 VE 9mm firearm with an obliterated serial number and a prolectile in the chamber, several small plastic bags, one large plastic bag with a green, leafy substance that field tested positive for marijuana, and two small scales The Defendant argues the physical evidence and statements made to law enforcement should be suppressed for the following reasons 1) the search and seizure was based on an anonymous tip and had no indicia of reliability 2) the search of the Defendant 5 person was without reasonable suSpicion of illegal activity, making it unconstitutional, and 3) the Defendant was not advised of his Miranda rights before he was questioned, violating his Fifih Amendment right against self incrimination For the following reasons the Court will deny Defendant’s motion
II LEGAL DISCUSSION A Standard for Analyzing a Motion to Suppress $6 ‘ 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 [llznozs 439 U S 128 132 (1978) If the search or seizure is warrantless the burden shifts to the People to demonstrate that the search or
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seizure was permissible under an exception to the Fourth Amendment’s warrant requirement Under the Foutth Amendment, people have the right “to be secure in their persons, houses against unreasonable searches and seizures ” U S Const amend IV, Terry v Ohm, 392 U S 1, 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 People of the Vzrgm Islands, quoting the U S Supreme 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 Vtrgm Islands, 63 V I 595 605 (VI 2015) (quoting Katz v Umted States 389 U S 347 357 (1967) ' 1|7 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 ofthe V! v Graham No SX 18 CR 130 2020 V I LEXIS 12 (Super Ct Feb 1 I 2020) (quoting United States v Smith 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 Fabzam Ogno, 20 V I 404 (Terr Ct 1984) However, while the Fourth Amendment ensures an individual's rights to be secure from unreasonable search and seizures, it does not require a police officer to ignore a possible
' 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 chiefevil against which the wording of the Fourth Amendment is directed United States 1 Mallory 765 F 3d 373 382 (3d Cir 2014) (quoting Payton 1 New York 445 U S 573 590 (1980)
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crime People ofthe VI v Archibald 50 VI 74 84 (Super Ct 2008) (quoting United States v Chabot 531 F Supp 1063 (D V I 1982))
B The Anonymous Tip Provided Sufficient Justification for Detective Carr to Stop the Defendant from Leaving the Area and Subsequently Search and Seize Defendant’s Person and Search his Bag
T8 The Defense argues that without more information, an anonymous tip is not enough to establish probable cause for a warrantless search or the issuance of a search warrant, therefore the officers lacked requisite reasonable suspicion to conduct a search under Umted States v szles, 224 F 3d 213 (3d Cir 2000) 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 Terrjyv Ohio 392 L S 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 I 549, 574 (V I 2010) (Swan, J dissenting) 1[9 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 In determining whether the officer acted reasonably in such 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 In regard to anonymous tips, the Supreme Court has held they are less reliable than tips from known informants and that they “create reasonable suspicion only when other contributing factors are present ” People ofthe Virgin Islands 12 McIntosh, 2008 V I LEXIS 47 *4 (V I Super Ct 2008) (citing Florida v J L 528 U S 266 269 (2000)) In determining whether a stop based on anonymous tip was reasonable, the Court must consider the “ veracity,
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‘reliability,’ and ‘basis of knowledge’ ’ of the tip See Virgin Islands v Isaac, 2011 WL 4703076 *3 (V I Super Ct 201 l) The Third Circuit has provided several factors to determine the reliability of an anonymous tip
(1) whether the tip information was relayed from the informant to the officer in a face to face interaction such that the officer had an opportunity to appraise the witness‘s credibility through observation (2) whether the person providing the tip can be held responsible if her allegations turn out to be fabricated, (3) whether the content of the tip is not information that would be available to any observer,
(4) whether the person providing the information has recently witnessed the alleged criminal activity; or
(5) whether the tip predicts what will follow, as this provides the means to test the informants knowledge or credibility
See Virgin Islands v Isaac 2011 WL 4703076 *3 (V I Super Ct 2011) 1[10 Defendant relies on People of the Virgm Islands v McIntosh 2008 V I LEXIS 47 (V 1 Super Ct 2008) to argue the anonymous tip in this case, which was not made face to face, but rather from a phone call, and provides no information of how the person knows the information they claim to convey, is unreliable because there is no indication of the anonymous caller’s motive or source of information, which are necessary to assess the trustworthiness of the information He argues there was no indication that a crime was occurring other than the statement there was a “fight ’ between a boy and a girl and further, that there was no indication why the caller felt help was necessary or provided any details regarding the “fight,” therefore there is nothing to support that the tip came from a reliable source Defense counsel flirther argues this anonymous tip is insufficient for Detective Carr to form reasonable suspicion to search the Defendant’s person 111 In McIntosh, the court held the anonymous tip did not provide reasonable suspicion for a vehicle stop In that case, an officer was informed, face to face, by an unidentified minor that there
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were some males in possession of a firearm on a sidewalk in Oswald Harris Court (“OHC”) near a parked maroon four door Toyota Corolla The officer subsequently stopped the vehicle consisting of 4 to 5 occupants, as the car was leaving OHC and conducted a search, resulting in the finding of an unregistered firearm The court held the anonymous tip did not provide the officer with sufficient reasonable suspicion to search the vehicle because based on the tip, the officer could not have justifiably concluded the same persons the minor saw on the street when the car was parked were the occupants inside the vehicle Additionally, the tip did not provide reasonable suspicion of criminal activity The minor only told the officer that there were people standing near a car with a gun and in the Virgin Islands it is not unlawful per se to possess a firearm This Court agrees with the holding in McIntosh but finds it inapplicable to the case at bar 1112 Here, Detective Carr was responding to a call about a dispute in progress to further investigate The call came from an anonymous person who stated there was a fight occurring between a boy and a girl outside The caller did not provide a description of the individuals involved nor did she describe whether there was a weapon involved However, the caller described the two vehicles that were present, a black Acura jeep and a Honda vehicle This anonymous tip was a telephone caller reporting her observations to the 911 dispatcher as she was witnessing the event In this case, the events occurred at the top of a hill, in a residential neighborhood, unlike the housing community in McIntosh, where many residents live and there was no confirmation that the persons the minor observed with a gun by the car were the same occupants in the car Further, there was no indication of a traffic violation in McIntosh necessitating the stop When Detective Carr arrived, he did not observe a fight, but he observed the two vehicles as described in the report, a male and two females, and the male immediately walked towards him in a brisk manner The
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description of the vehicles and the individuals aligning with what was reported gave Detective Carr reasonable suspicion to stop the vehicles from leaving the area to determine if there was a dispute 1|13 Additionally, the anonymous tip was sufficient to satisfy the standard of reasonable suspicion 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 VI LEXIS 28 (Super Ct 2014) (quoting United States v Whitfield 634 F 3d 741 744 (3d Cir 2010) (citing Umted States v Valentine, 232 F 3d 350, 356 (3d Cir 2000)) Here, the caller provided sufficient information to establish she witnessed criminal activity The Court heard the 91 1 recording of a woman who did not want to become involved, but apparently sought police intervention to quell what she determined was a fight in the street From that, Detective Carr can reasonably infer an assault may have occurred or is about to occur Although Detective Carr testified that he did not witness a dispute as reported, because of what was reported in the 911 call and because the vehicles in the area matched the description, he stopped both the black Acura and Honda vehicles from leaving the area to alleviate the dispute 1H4 Detective Carr also testified that afier he stopped both vehicles, the Defendant exited the Acura vehicle and started walking briskly towards him The Defendant’s movements towards Detective Carr provided sufficient cause to perform a pat down of the Defendant for both his and the Defendant’s safety independent from the anonymous tip 1| 15 Defense counsel also orally argued the anonymous tip violates the Defendant’s right to confrontation under the Fifth Amendment The Court disagrees In this case, the Defendant is being
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charged with multiple counts involving unauthorized possession of a firearm and marijuana The tip did not provide any information regarding the marijuana, drug paraphernalia, or firearm found in the Defendant’s backpack Accordingly, the anonymous tip only provided the context for how law enforcement became involved and the initiation of the investigation which led to the multiple unauthorized possession charges See Rayner v Overmyer, 2021 U S Dist LEXIS 226702 *33 35 (E D Pa 2021) Thus, the anonymous tip is not essential to the People’s charges against the Defendant and therefore does not violate the confrontation clause ‘116 Further, the Defendant argues Detective Carr did not have reasonable suspicion to search his Michael Kors bag However Detective Carr testified that both Ms Steward and the Defendant stated the bag, which was located 10 to 15 feet away from the car in the grass, did not belong to them Upon learning the bag was abandoned, Detective Carr searched the contents and found the gun and marijuana The Fourth Amendment’s protection against unlawfiil searches and seizures does not extend to abandoned property See People v Bethe] 2017 WL 3327642 *4 (V I Super Ct 2017) Accordingly, the search of the bag was constitutional
C Standard of Review When Suppressing Statements Made During Custodial Interrogation
1] 17 Miranda warnings are required for custodial interrogations See Castillo v People, 59 V I 240 265 (VI 2013) (citing Rhode Island t [mm 446 L S 291 300 (1980)) A suspect is in custody” when he has been “deprived of freedom of action in any significant way ” Ramirez v People 56 VI 409 419 (V I 2012) (citing United States v Thompson 496 F 3d 807 810 (7th Cir 2007)) However, a suspect can waive his rights by making a statement after Miranda warnings have been given Id (citing Edwards v Arzzona 451 U S 477 485 86 (1981)) A defendant can only waive his constitutional rights knowingly, voluntarily, and without coercion See People v
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Azzam No ST 2016 CR 00232 2017 VI LEXIS 157 at *3 (VI Super Ct Nov 14 2017) (citing Moran v Burbme 475 U S 412 421 (1986)) 1H8 The burden rests on the defendant to establish the evidence sought to be suppressed was illegally obtained Azzam 2017 V I LEXIS 157 at *2 Once the defendant alleges facts demonstrating he was in custody and subject to an interrogation, the burden then shifts to the People to prove by a preponderance of the evidence that the police complied with Miranda v Arizona, 384 U S 436 (1966) and that the statement was voluntary ’ Id (citing Colorado v Connelly 479 U S 157 (1986))
D Defendant’s Statements Will Nat Be Suppressed Because His Statements Were Made Knowingly, Voluntarily, and Intelligently
1|19 The Defendant argues that his statements were the product of a custodial interrogation He argues that his statements regarding the fight with his girlfriend were made before he was advised of his lights 1[20 A defendant’s waiver of Miranda is voluntary where the waiver “[is] the product of a free and deliberate choice rather than intimidation, coercion, or deception,” and “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it Berghuls v Thompkms 560U S 370 382 83 (2010) Umted States v Banner 469 F Appx 119 125 (3d Cir 2012) see also People ofthe V1 v Frett N0 ST 18 CR 208 2019 VI LEXIS 119 at *2] (Super Ct Oct 18 2019) Courts look at the totality of the circumstances ’ surrounding the statements made by a defendant in determining whether a defendant’s waiver was made knowingly, voluntarily, and intelligently Sweet v Tenms, 386 F Appx 342 345 (3d Cir 2010)‘ United States v Rivera No 3 20 or 0020 2020 U S Dist LEXIS 242139 at *6 (D V 1 Dec 23 2020) Such factors include the defendant 5 background
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experience, conduct, and any signs of coercion from law enforcement Umted States v Scotland, No 2014 004 2014U S Dist LEXIS 70172 at *2 (D VI May 22 2014) 1[21 Upon Officer Xavier’s contact with the Defendant, he made statements that he was having an argument with his girlfriend and that she refiised to drive him to work, so he called his coworker, Ms Steward, for a ride and subsequently was stopped by Detective Carr After learning this, per Officer Xavier s affidavit, she then advised Dolphin of his constitutional rights Defendant argues these statements regarding the argument should be suppressed because they were offered before Dolphin was advised of his rights However, Detective Carr and Officer Charleswell both testified that the Defendant was advised ofhis rights prior to Officer Xavier s arrival Courts have held that a written waiver is not necessary for a Defendant to waive his rights See Berghuzs, 560 U S at 386; see also Scotland, 2014 U S Dist LEXIS 70172, at *6 A defendant 3 waiver may be verbal or inferred from conduct sufficient to constitute a waiver of constitutional protections See Scotland, 2014 U S Dist LEXIS 70172, at *7 A willingness to speak to law enforcement is consistent with behavior of waiving one’s Miranda rights See Id Here, the statements were made to Officer Xavier afier the Defendant had already been advised of his rights by Detective Carr There is no evidence showing these statements were made in response to any police interrogation and the record does not reflect any coercion from law enforcement to elicit such statements from Defendant Therefore, these statements were given freely and voluntarily and constitute a waiver of his rights Accordingly, the Court will not suppress the Defendant s statements
III CONCLUSION 1122 For the above stated reasons, Defendant’s motion to suppress will be denied The anonymous tip provided sufficient Justification for Detective Carr to stop the individuals from
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leaving the area and the Defendant’s actions created reasonable suspicion for Detective Carr to perform a pat down and to search his backpack Simiiarly, Defendant’s post Miranda statements were made knowingly, voluntarily, and intelligently and were effectively a voluntary waiver, hence no violation ofhis constitutional rights and are therefore admissible Accordingly, the Court will deny the Defendant’s motion to suppress An Order accompanying this Memorandum Opinion follows
Dated October / f2 2022 ‘I 4 I I .14 A [a J
Ren :- bs Carty Judge of t uperior Court of the rgin Islands ATTEST Tamara Charles Clerk of the C urt
W1 atoya amacho Court lerk Su isor a2 IL?)W
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN
PEOPLE OF THE VIRGIN ISLANDS )
)
Plaintiff )
v ) CASE NO ST 22 CR 085 )
KYMANI T DOLPHIN )
) Cite as 2022 V 1 Super 88U Defendant )
)
ORDER
THIS MATTER came before the Court on October 7, 2022, for a suppression hearing The Court heard the sworn testimonies of Detective Vernon Carr, Officer Ashlyn Xavier, Officer Jeremy Charleswell, and Abena Steward The Court also head oral arguments from both counsel Based on the representations made by counsel, the testimony adduced at the hearing, and for the reasons set forth on the record, it is hereby ORDERED that Defendant’s motion to suppress is DENIED, and it is fimher ORDERED that both counsel shall submit their pretrial memoranda by Tuesday, October 25, 2022 and it is fithher ORDERED that a copy of this Order shall be distributed to Assistant Attorney General John Barraco, Esquire, and Tenitorial Public Defender Mary Ann Matney, Esquire
Dated October [2* 2022 / ‘ [Z l t d M‘ Renee mbs Carty
Judge of th Superior Court of the rgin Islands
ATTEST Tamara Charles Clerk of the C urt
4M/ atoya amacho Court Clerk Sup isor [2 / /§ AM