United States v. Harvey

48 V.I. 635, 2006 WL 3513940, 2006 U.S. Dist. LEXIS 88590
CourtDistrict Court, Virgin Islands
DecidedNovember 29, 2006
DocketCriminal No. 2005-96
StatusPublished
Cited by1 cases

This text of 48 V.I. 635 (United States v. Harvey) is published on Counsel Stack Legal Research, covering District Court, Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Harvey, 48 V.I. 635, 2006 WL 3513940, 2006 U.S. Dist. LEXIS 88590 (vid 2006).

Opinion

GOMEZ, Chief Judge

MEMORANDUM OPINION

(November 29, 2006)

Before the Court is the motion of Kevin Harvey (“Harvey”) to suppress all evidence seized as a result of his arrest on November 3, 2005. A suppression hearing was held on this matter on May 24, 2006. Following oral argument, the Court requested additional briefing from both parties on issues raised at the hearing but not discussed in the original briefs. For the reasons set forth below, the Court will grant the motion to suppress.

I. FACTS

On September 30, 2005, a seizure warrant was issued by Magistrate Judge Geoffrey Barnard for a vehicle, which the government alleged was involved in the drug trafficking activities of Alexei Emmanuel (“Emmanuel”), a defendant in another case. The vehicle was described in the seizure warrant as a silver 2000 Acura Integra, bearing Virgin Islands license plate number TBY - 454 (hereinafter the “Acura”). The Acura is registered to Emmanuel’s girlfriend, Saida Wade.

The basis for the seizure warrant was an affidavit provided by Drug Enforcement Agent Michael Goldfinger. Agent Goldfinger was conducting a drug conspiracy investigation in which Emmanuel was allegedly [641]*641involved. Paragraph 2 of the affidavit states: “This affidavit is offered in support of an application for seizure of the following property. ...” Goldfinger Aff. ¶ 2. It then lists six items to be seized, including two motor vehicles: a Toyota Tundra, and the Acura. Both vehicles were identified with the same degree of specificity, including vehicle identification number, tag number, make, model, and color.1

The affidavit continues for 28 paragraphs, occupying nine single-spaced pages. Paragraphs 3 through 15 describe various controlled transactions between a government informant and various defendants in another case. Paragraphs 16 through 27 detail various cell phone conversations of the defendants in another case, which were intercepted by the police. Paragraph 28 concludes that the information set forth in the preceding paragraphs created probable cause to seize the items listed in Paragraph 2 “as facilitating property or proceeds obtained as a result of drug trafficking activity....”

The Acura is not mentioned in the body of the affidavit. In fact, the affidavit contains only two references to motor vehicles. First, Paragraph 26 describes a “white 1998 Mazda Millenia.” Notably, this Mazda was not one of the assets to be seized pursuant to this affidavit. The only other mention of a motor vehicle in the body of the affidavit is at the end of Paragraph 27, where the affidavit refers to a “car.” In describing a cell phone conversation intercepted by the police, Paragraph 27, in pertinent part, states:

Defendant Fagan told Defendant MARK, “Yeah, I [am] going to be on the move now. Man just brought by the car”. ... Previous surveillance and intercepted telephone calls revealed that this conversation is referring [to] Defendant FAGAN telling Defendant MARK that he has the car from Defendant EMMANUEL and is ready to pick up the cocaine that is supposed to be dropped off....

Goldfinger Aff. ¶ 27.

On November 3, 2005, Harvey was observed driving a vehicle near Home Town Convenience Store in St. Thomas. The vehicle matched the [642]*642description of the Acura at the center of the search warrant. Lieutenant Rodney Querrard, an[d] High Intensity Drug Trafficking Area (“HIDTA”) task force officer, ordered the defendant to drive into the Hometown parking lot. Lieutenant Querrard then waited for Drug Enforcement Administration (“DEA”) Agents Goldfinger and Darnell Blake to arrive before exiting his vehicle to approach the defendant. Upon their arrival, Harvey was asked to produce the vehicle registration, proof of insurance, and his driver’s license. Harvey produced the first two documents, but stated that he did not possess a driver’s license, though he was in the process of obtaining one.

The DEA agents thereafter informed Harvey that they were seizing the Acura pursuant to the seizure warrant, at which point Lieutenant Querrard asked Harvey a routine question:

I asked him, I said, “Do you have anything in particular that belongs to you,” which is a normal practice, because our intent — my intention and I’m pretty sure all of our intentions, was to actually turn him loose. He was not part of the investigation. He was just, he just happened to be driving the vehicle....

Trans, of Suppression Hr’g at 8-10. Harvey’s response to this question is unclear. According to Lieutenant Querrard:

[Harvey] hesitated, and he said he don’t really think so. He might have, I think it was a document or something. He said that he might have something in there. So I asked him, I said, “Where is it? Because I’ll get it for you.” And I don’t know exactly what he said from there, but he continued talking with the two [DEA] agents. And I proceeded to the vehicle.

Id. at 8-10. Lieutenant Querrard then searched the Acura and discovered a shopping bag containing four ounces of marijuana.

The agents then arrested Harvey. After Harvey was arrested, Lieutenant Querrard questioned him. The content of the questioning was revealed at the suppression hearing, when the defense counsel engaged in the following inquiry with Lieutenant Querrard:

Q: ... And did you ask him, then, if it was his marijuana?

A. He did, he did say it was his marijuana.

Q. Did you ask him if it was his marijuana?

[643]*643A. I don’t recall exactly what I asked him. But it is a possibility, yes.

Q. So that question was before he was advised of his rights; is that correct?
A. I would say that.

Id. at 21-22. Harvey was then taken to the DEA field office, where he was advised of his rights.

While at the DEA field office, Harvey waived his right to counsel and agreed to be questioned. During the subsequent questioning, Harvey provided the agents with the address of his residence and signed a consent to search form authorizing a search of the residence.

The search revealed a knapsack containing a fully loaded semiautomatic weapon with an extended magazine containing hollow point bullets, $1,500 in cash, approximately 40.5 grams of crack cocaine, and other drug paraphernalia.

Harvey contends that the seizure warrant was unsupported by facts amounting to probable cause. Harvey also claims that the stop, seizure and search of the Acura and his subsequent arrest were in violation of the Fourth Amendment. Harvey seeks to suppress all evidence found as a result. Harvey moves to exclude the marijuana found in the Acura; all statements he made to the law enforcement officers on November 3, 2005; and all items found in the apartment, including the cocaine, the semi-automatic weapon, the hand scale, the electronic scale, the packaging material, and the cooler packaged within a cardboard box.

II. DISCUSSION

The Fourth Amendment protects citizens from “unreasonable searches and seizures” of “their persons, houses, papers and effects.” U.S. CONST, amend. IV.2

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Related

United States v. Rivera
61 V.I. 617 (Virgin Islands, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
48 V.I. 635, 2006 WL 3513940, 2006 U.S. Dist. LEXIS 88590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-harvey-vid-2006.