IN THE SUPERIOR COURT
OF THE VIRGIN ISLANDS

FILED

May 95, 2923 03:54 eM

8T-2022-CR-00020

TAMARA CHARLES
CLERK OF THE COURT

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

PEOPLE OF THE VIRGIN ISLANDS,

. Plaintiff, Case No. ST-2022-CR-00020

JAQUIN ELISHA PHIPPS

Defendant.

Nee ee eee ee ae

Cite as 

MEMORANDUM OPINION

THIS MATTER is before the Court on Defendant’s First and Second Motions to
Suppress, filed on October 7, 2022, pursuant to V.I. R. Crim. P. 12(b)(3)(C).

A suppression hearing was held on March 9, 2023, where the People were represented by
Attorney Eugene James Connor Jr., and Defendant Jaquin Elisha Phipps (“Phipps”) was
represented by Attorney Adam G. Christian. The only witness was Virgin Islands Police
Department Detective Yordona Loblack (“Det. Loblack’’), who testified for the People.

At the conclusion of the hearing the Court took the matter under advisement. For the
reasons set forth herein both the First and Second Motion to Suppress will be denied.

FACTUAL BACKGROUND

The facts below derive from Detective Loblack’s testimony at the March 9, 2023,
suppression hearing (“Suppression Hearing’) and from Det. Loblack’s Affidavit in Support of
Arrest Warrant (“Affidavit”), admitted into the record as Exhibit M3. Det. Loblack has been with
the Virgin Islands Police Department (“VIPD”’) for 10 years, and became a detective more than

one year ago.
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Memorandum Opinion on Motions to Suppress
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On December 4, 2021, Detective Loblack reported to a robbery that occurred in
Havensight, St. Thomas (“Dec. 4 incident”) around 10:30 p.m. Detective Loblack made contact
with the victim, his fiancée, and the fiancée’s cousin. The victim recounted that while they were
walking, a gray or silver Toyota (“gray/silver Toyota”) passed them travelling in the opposite
direction and the car then came back and a male in a red hoodie approached them and touched the
victim’s chest, trying to take the 14K gold Gucci chain (“14K gold Gucci chain’) the victim was
wearing.

The victim and male in the red hoodie began to wrestle. Then a second male, dressed all in
black, approached with a gun and said, “leave my friend alone”, and at that point the two
perpetrators took the 14K gold Gucci chain and ran off. None of the three individuals present
identified Phipps as the driver of the gray/silver Toyota. They also never identified the person in
the red hoodie or the person dressed in all black.

Det. Loblack reviewed video surveillance of the Dec. 4 incident, and while she could not
make any positive identifications from the footage, she discerned the license plate number of the
gray/silver Toyota and performed a registration check with the Bureau of Motor Vehicles. The
license plate number was registered to a blue Toyota Yaris; Det. Loblack, then, contacted the
owner of the Yaris, who stated that the Yaris is inoperable and parked at her home, and she does
not own a gray/silver Toyota Corolla.

The owner of the Yaris then called home to check the Yaris, and she learned that its license
plates were missing. Det. Loblack showed the owner of the Yaris a picture of the gray/silver Toyota
taken from the Havensight surveillance video, and the owner of the Yaris stated the Toyota looked

familiar and she had seen it around.
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Memorandum Opinion on Motions to Suppress
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On December 7, 2021, Det. Loblack and another detective drove around the area where the
owner of the Yaris lived. Det. Loblack identified a silver Toyota Corolla similar to the one from
Dec. 4 incident, which was distinctive because its roof was rusted and there were stains on the
hood. That same day, Det. Loblack spoke with the registered owner of that Corolla, Gerraina
Phipps (“Gerraina”) and she confirmed she owned the 2019 Toyota Corolla (“2019 Corolla”) and
that her son, Phipps, generally operated it. Gerraina conceded to Det. Loblack that on one or two
occasions the vehicle had been operated by others, but that none of those instances occurred during
the timeframe of the Dec. 4 incident that Det. Loblack was investigating. Moreover, Demoi
Barrow, Phipps’s codefendant in this case, likewise informed Det. Loblack that the 2019 Corolla
belonged to Phipps and that Phipps normally drove it.

On the evening of December 14, 2021, Officer Francis of the VIPD conducted a traffic
stop of a silver Toyota Corolla, registered to Gerraina but driven by Phipps, because of an
inoperable taillight (“Dec. 14 stop’). Det. Loblack heard the description of the 2019 Corolla and
vehicle registration through VIPD’s Central Dispatch transmission, and she travelled to the scene.
When Det. Loblack arrived, no search had been conducted.' Officer Francis told Det. Loblack —
and she confirmed — there was an odor of marijuana emanating from the 2019 Corolla. At some
point, Phipps and his three passengers were told to exit the vehicle.

Det. Loblack and Officer Francis subsequently conducted a search of the 2019 Corolla,
which yielded one marijuana cigarette and a very small, mostly smoked marijuana cigarette, almost

ashes. Further, Det. Loblack found a gold Gucci chain partially under the front passenger seat that

' There is no evidence on whether Officer Francis notified Phipps of the reason for the traffic stop. And Det. Loblack
did not inform Phipps of his inoperable taillights.
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Memorandum Opinion on Motions to Suppress
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matched the description of the 14K gold Gucci chain taken in the Dec. 4 incident, which was
distinctive because it was diamond cut and had a broken clasp.

On January 12, 2022, Det. Loblack executed the Affidavit for an arrest warrant of Phipps,
affirming, inter alia, “[t]hat, as part of the investigation, [Det. Loblack] met with and interviewed

the robbery victim, [who] stated .. . [t]hat the driver (later identified as JAQUIN PHIPPS)

remained in the vehicle” during the Dec. 4 incident. (emphasis in original). Later, at the
Suppression Hearing, Det. Loblack clarified that no one ever identified Phipps as the driver during
Dec. 4 incident, but that her investigation revealed he was the sole operator of the 2019 Corolla.
DISCUSSION

Phipps now moves the Court to suppress any out-of-court identifications made, and in-
court identifications that could possibly be made, of Phipps as a participant in the Dec. 4 incident
(“First Motion”). Phipps also moves to suppress all evidence obtained from the Dec. 14 stop — that
is, all physical evidence obtained from the warrantless search of Phipps and the vehicle and all
statements made by Phipps during the Dec. 14 stop (“Second Motion”).

I. Because Phipps was never identified as a participant of the Dec. 4 incident
there is no identification to suppress.

In the First Motion, Phipps asserts that his identification as a participant in the Dec. 4
incident was unnecessarily suggestive because, at the time of filing the First Motion, the People
had not presented Phipps with any discovery about who identified him, nor which identification
procedures — if any — were taken by Det. Loblack. The First Motion argues Phipps’ due process

rights have been violated under the Fourteenth Amendment and Section Three of the Revised
People vy. Phipps Cite as 

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Memorandum Opinion on Motions to Suppress
Page 5 of 9

Organic Act of the Virgin Islands of 1954. Thus, Phipps requests that any out-of-court and in-court
identifications of him as a participant in the Dec. 4 incident be suppressed.

Under the Fourteenth Amendment, no state “shall . . . deprive any person of life, liberty,
or property, without due process of law ....” U.S. Const. amend. XIV, § 1. Pre-trial identifications
that lead to a substantial likelihood of misidentification violate a person’s due process rights.
People v. Frett, 

, §11 (quoting Richards v. People, 53 V.1. 379, 385 (V.I.
2010)). To appropriately analyze identifications the Court must first determine if the pre-trial
identification procedure was unnecessarily suggestive, and, if so, it must then consider its
reliability. /d. at 912; People v. Berthier, Super. Ct. Crim. No. ST-2020-CR-00003, 

, at *7 (V.I. Super. Ct. January 27, 2022) (citing Richards, 53 V.1. at 393).

Nevertheless, when there is no identification process undertaken by law enforcement
and/or no photo array is conducted, a motion to suppress is considered ineffectual because, in
essence, there is no identity to suppress. People v. Frett, 

 (When
law enforcement did not conduct an identification procedure and a defendant was not identified
out-of-court, the Court found there was no identification to suppress.). Given Det. Loblack
established ee was no identification procedure conducted because no witnesses could identify
Phipps as a participant of the Dec. 4 incident, the Court has no out-of-court identification to
suppress. Nevertheless, the identification Phipps seeks to suppress involves the — “later identified”
— language of Det. Loblack’s Affidavit; however, that language would not classify as an

identification.”

* An identification is an act or process whereby a witness can prove “that [the] person charged with an offense and
brought before a court is the same person who committed the offense.” Jdentification, Black’s Law Dictionary (11th
ed. 2019).
People v. Phipps Cite as 

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Memorandum Opinion on Motions to Suppress
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Moreover, since no one made an out of court identification of Phipps and no identification
procedure was conducted, the Court finds there would be no identification to suppress in-court as
well. Frett, 2022 VI Super at §917, 22 (finding that a “lack of an out-of-court identification may
significantly dilute the strength of a subsequent in-court identification, but it does not render an
in-court identification inadmissible.”).? Indeed, a witness has the right to make an in-court
identification despite not propounding a pretrial identification. Frett, 

 (citing
State v. Wooten, 

 (Conn. 1993) (“The right to cross-examine an identifying
witness operates as a defendant’s protection against the suggestiveness of any in-court
identification procedure.”)); Bond v. Walker, 

 (S.D.N.Y. 1999) (“When
the initial identification is in court... [t]he jury can observe the witness during the identification
process and is able to evaluate the reliability of the initial identification.”) (quoting U.S. v. Domina,

 (9th Cir. 1986)). Therefore, the First Motion to Suppress will be denied.

II. Because the evidence obtained from the Dec. 14 stop was obtained pursuant to

an automobile exception, the warrantless search is reasonable, and the Second
Motion will be denied.

In the Second Motion, Phipps requests evidence obtained from the Dec. 14 stop be
suppressed because he was subject to a warrantless search, violating his Fourth Amendment rights.
Phipps argues the automobile exception does not apply to the Dec. 14 stop because it is unclear

whether Officer Francis and Det. Loblack could articulate the necessary probable cause to satisfy

3 Given that no one identified Phipps as the driver during the Dec. 4 incident, the phrasing of Det. Loblack’s Affidavit
— “the driver (later identified as JAQUIN PHIPPS) remained in the vehicle” — is, at the very least, inartfully stated
and, at worst, misrepresents the statements taken from witnesses. Det. Loblack confirmed during the Suppression
Hearing that no one identified Phipps as the driver in the Dec. 4 incident, and she did not conduct an identification
procedure; therefore, it is clear that no one had identified Phipps as the driver in the Dec. 4 incident, so there is no
identification to suppress.
People v. Phipps Cite as 

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Memorandum Opinion on Motions to Suppress
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that warrant exception. Also, Phipps argues there were no exigent circumstances to justify the
warrantless search and seizure.*

Under the Fourth Amendment, individuals are protected against unreasonable searches and
seizures. U.S. Const. amend. IV, § 1.° Searches and seizures are per se unreasonable if they are
conducted without a warrant — i.e., without prior approval by judge or magistrate — save for a few
exceptions. People v. Looby, 68 V.1. 683, 694 (V.I. 2018); People v. Cannergeiter, 65 V.1. 114,
121 (V.I. Super. Ct. 2016). For instance, the automobile exception allows law enforcement to
search a vehicle without a warrant if probable cause exists to believe it contains contraband.
Browne v. People of the Virgin Islands, 56 V.1. 207, 217 (V.I. 2012).

Probable cause manifests if, when considering “the totality of the circumstances, a
reasonable person would believe there is a fair probability that contraband [] will be found.” People
v. Benyehudah, Super. Ct. Crim. No. ST-15-CR-183, 

, at *9 (V.I. Super. Ct.
November 23, 2016); U.S. v. Ramos, 

 (3d Cir. 2006). And the detection of
marijuana odor emanating from a vehicle by law enforcement trained in the identification of
narcotics is sufficient to establish probable cause to conduct a warrantless search. Cannergeiter,
65 V.I. at 125 n2 and People v. Turnbull, Super. Ct. Crim. No. SX-11-CR-832, 

,

at *5 (V.I. Super. Ct. June 23, 2014) (unpublished) (citing to Ramos, 

); U.S. v.

Harrison, Case No. 17-59-GMS-1, 

, *2 (D. Del. March 15, 2018) (“[I]t remains

* An exigent circumstance is an exception to the warrant requirement when there is a hot pursuit of a suspected felon,
a “possibility that evidence may be removed or destroyed, and [a] danger to the lives of officers or others.” Simmonds
v. Virgin Islands, 53 V.1. 549, 560 (V.I. 2010) (quoting U.S. v. Coles, 

 (3d Cir. 2006).

° The Fourth Amendment of the U.S. Constitution is applicable to the Virgin Islands pursuant to Section 3 of the
Revised Organic Act of the Virgin Islands of 1954. 

; People v. Looby, 68 V.1. 683, 694 n.6 (V.L
2018); Thomas v. People, 

, 605 n.3 (V.I. 2015).
People v. Phipps Cite as 

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well settled law . . . that the smell of marijuana, where particularized and articulable, may establish
probable cause to conduct a warrantless search.”).°

Phipps contends that because the People did not provide pictures, videos, and other
information relative to the Dec. 14 stop, it is unclear whether Det. Loblack or Officer Francis had
sufficient probable cause prior to conducting a warrantless search and seizure. Moreover, Phipps
argues the decriminalization of cannabis prevents the automobile exception from applying here.
Thus, Phipps argues a warrantless exception does not apply because the traffic stop was nothing
more than a pretense to avoid the warrant process.

The Court finds, however, that the People established, through the testimony of Det.
Loblack, that the Dec. 14 stop was based on an inoperable taillight, although she admits she did
not ask Phipps to press on the brakes, or to turn the lights off or on to confirm they were inoperable.
Indeed, Det. Loblack did not effectuate the Dec. 14 stop. But, once stopped for the traffic violation,
Det. Loblack and Officer Francis smelled an odor of marijuana coming from the 2019 Corolla and
then conducted a warrantless search.

In the Virgin Islands, although marijuana has been decriminalized it is not fully legalized.
As such, it is still considered contraband, and the possession of less than an ounce is a civil offense,
subject to forfeiture. 19 V.I.C. § 607a; Pemberton, 417; Looby, 68 V.I. at 698. Further, the smell

of marijuana emanating from the 2019 Corolla provided Officer Francis and Det. Loblack probable

° The Court acknowledges that the law surrounding the use of marijuana was recently amended, specifically the Virgin
Islands Cannabis Use Act was signed into law on January 18, 2023. Nevertheless, it appears the use of marijuana
remains illegal for reasons the Court need not analyze here. However, even if the Virgin Islands Cannabis Use Act
legalized the use of marijuana in limited quantities, Phipps’ arrest predated the passage of the Act. Therefore, Phipps
may not avail himself of any of the provisions in the Act.
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Memorandum Opinion on Motions to Suppress
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cause to believe there was a fair probability that contraband would be found in the vehicle,
legitimizing a warrantless search under the automobile exception. Cannergeiter, 65 V1. at 124.
CONCLUSION

Given that, as of the date of the suppression hearing, no one has identified Phipps as being
involved in the Dec. 4 incident, the Court does not have, by definition, an identification to suppress.
Thus, the First Motion will be denied.

Also, because Officer Francis stopped Phipps for an inoperable taillight, the odor of
marijuana emanating from the 2019 Corolla provided Det. Loblack and Officer Francis probable
cause to believe contraband would be found therein. Therefore, the automobile exception to the
warrant requirement applies. Accordingly, the Second Motion to Suppress will be denied.

An Order consistent with this Memorandum Opinion will be concurrently entered.

oe 27 oe
DATED: May S 2023 Le A2- Cif CCAR
€ 0

Kathleen Mackay
Judge of the Superior Court
of the Virgin Islands
ATTEST:
TAMARA CHARLES

Clerk of the Cou
BY: OF

fae LATOYA CAMACHO
Court Clerk Supervisor 05/08 / A3