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

PEOPLE OF THE VIRGIN ISLANDS, ) CASE NO. ST-2019-CR-00253
)
Plaintiff, )
vs. )
)
CODERO LAKE )
Defendant. )
)

Cite as 2022 VI Super U10

MEMORANDUM OPINION

41 This matter is before the Court on Defendant’s Motion to Suppress a firearm,
drugs, and a statement allegedly made by Defendant, Codero Lake (“Lake”), while
being processed at the Virgin Islands Police Department station.!

{2 The motion came on for hearing on September 23, 2021, in person. The People
of the Virgin Islands (“the People”) were represented by Assistant Attorneys General
Eugene J. Conner, Jr. Lake appeared and was represented by Assistant Public
Defender Paula D. Norkaitis. For the reasons set forth herein, the motion will be

denied.

1 Lake’s motion to suppress was filed on November 16, 2020. The People filed an Opposition on July
20, 2021.
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BACKGROUND AND PROCEDURAL POSTURE

{3 On October 28, 2019, Lake was arrested and ultimately charged with
unauthorized possession of a machine gun in violation of V.I. CODE ANN. tit. 14 §
2253(b)(d)(2), unauthorized possession of firearm, in violation of V.I. CODE ANN. tit.
14 § 2253(a), unauthorized possession of ammunition in violation of V.I. CODE ANN.
tit. 14 § 2256(a) and delaying and obstructing in violation of V.I. CODE ANN. tit. 14 §
1508.

14 At a suppression hearing held on September 23, 2021, the People called one
witness: Virgin Islands Police Department (“VIPD”) Deputy Chief Richard Velazquez
(“Velazquez”). Velazquez has approximately thirty-years of law enforcement
experience. The parties stipulated to the admission of the People’s and Lake’s
exhibits.

q5 Lake argues that VIPD’s actions constitute an unlawful search and seizure
within the meaning of the Fourth Amendment because the officers did not have
probable cause to conduct a warrantless search of the black bag found in the vehicle
Lake was travelling in. Lake also argues that his alleged statements were made while
he was in custody and that they were elicited without a knowing and voluntary
waiver, in violation of his Fifth Amendment right against self-incrimination. For
these reasons, Lake argues the contents of the black bag, and his statements should

be suppressed.
People v. Cordero Lake

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FACTS

The Court finds the following facts from the suppression hearing.

{6 On October 25, 2019, Velazquez, and VIPD Officer Aliek Wescott? were
conducting an investigation in Port of Sale Mall in St. Thomas, United States Virgin
Islands. At approximately, 11:15 p.m., Velazquez, while standing near one of the
businesses, observed a yellow, four-door Jeep Wrangler (“vehicle”), driving through
the Port of Sale Mall parking lot. Velazquez testified that the area in which the
vehicle was driving was well lit and that as the vehicle drove past him, he observed
that the driver was not wearing a seatbelt. Velazquez then directed the vehicle to
stop and started to approach it on foot. Velazquez testified that when he was
approximately twelve to eighteen inches from the vehicle, he began to smell
marijuana as the driver’s window was down.

17 When Velazquez asked where the marijuana smell was coming from the person
later identified as Lake held up a partially smoked marijuana cigarette. After
obtaining the driver’s license, Velazquez directed Lake and the driver to step out of
the vehicle and stand to the rear of the vehicle for purposes of officer safety. Velazquez
then asked whether he would find anything in the car, and they said no. He asked
them whether either of them had a permit for a firearm, and they said no. He then
asked if there was a firearm in the vehicle, and they said no. He also asked if he would

find marijuana in the vehicle to which Lake said yes.

? As of the date of the suppression hearing, Officer Wescott was no longer a member of VIPD.
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18 Velazquez testified that he searched a zipped, black Gucci messenger style bag
in the backseat of the vehicle. Velazquez then unzipped the black bag and proceeded
to conduct a search of the bag’s contents while Lake and the driver were outside the
vehicle. In the bag, Velazquez found a clear glass container, a digital scale, and small
bags. Thereafter, Velazquez unzipped and reached into the pocket of the black bag
and felt what he perceived to be a magazine for a firearm. Velazquez unzipped and
discovered a Glock magazine. Velazquez asked who the bag belonged to, and Lake
claimed ownership.

19 After finding the magazine, Velazquez attempted to place Lake under arrest
for unlawful possession of ammunition. However, Lake ran from the area, but with
the help of other officers, Lake was apprehended. Lake struggled against Velazquez’s
grasp and kept attempting to grab for something on his waist. Velazquez then used
a gut-wrenching technique to bring Lake to the ground and secure his arms.
Velazquez testified that after they secured Lake and rolled him on his back, a Glock
firearm had fallen onto the ground from somewhere on Lake’s person. The Glock
magazine found in the vehicle matched the Glock firearm that fell from Lake’s waist.
The officers then transported Lake to the VIPD Callwood Command booking room to
arrest him for the firearm.

410 Velazquez testified that as they were entering the booking room, Lake
spontaneously uttered that he needed the firearm to protect himself because he had

been shot before. Velazquez testified that at the time the statement was made, Lake
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had not yet been Mirandized, but that he did not intend to ask Lake any questions.
No seatbelt citation was issued after a weapon was found on Lake.

411 Velazquez conceded that neither Lake nor the driver consented to the search
and that as he was searching the vehicle, he did not fear for his safety. Velazquez
advised Lake of his Miranda rights after they got to the station.

LEGAL STANDARD

412 Defendant challenges the lawfulness of the officers’ search and seizure under
the Fourth Amendment. The Fourth Amendment guarantees the right of people “to
be secure in their persons . . . and effects, against unreasonable searches and
seizures.” Whren v. United States, 

 (1996). “No right is held more
sacred, or carefully guarded. . . than the right of every individual to the possession
and control of his own person, free from all restraint or interference of others, unless
by clear and unquestionable authority of law.” Terry v. Ohio, 

 (1968)
(quoting Union Pac. R. Co. v. Botsford, 

 (1891)). Where an officer
“restrains [a] person's freedom to walk away,” the officer has effectuated a seizure,
and that seizure must be reasonable. Blyden v. People of the V.I., 53 V.1. 637, 647 (V.I.
2010) (citing Brown v. Texas, 

 (1979)); People v. Rojas, No. ST-17-CR-
278, 

, at *2 (V.I. Super. Ct. May 31, 2018). “What is reasonable
depends upon all the circumstances surrounding the search or seizure and the nature
of the search or seizure itself.” U.S. v. Ubiles, 

, 216 (3d Cir. 2000) (quoting

United States v. Montoya de Hernandez, 

, 537 (1985).
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4138 On a motion to suppress, once it is shown that a search or seizure was
performed without a warrant “the government bears the burden of showing that each
individual act constituting a search or seizure” was reasonable under the Fourth
Amendment. Rojas, 

 at *2; People of the V.I. v. Cornelius, Crim. No.
ST-11-CR-546, 

, *2 (V.I. Super. Ct. Nov. 4, 2013); People of the
VI. v. Samuel, No. SX-09-CR-557, 

, *8 (V.I. Super. Ct. Nov. 12,
2010) (citing United States v. Johnson, 

 (8d Cir. 1995)). Warrantless
searches and seizures are per se unreasonable, subject only to a few “well-delineated
exceptions.” Katz v. United States, 

 (1976) (footnote omitted); see
Ubiles, 224 F.3d at 217; People of the V.I. v. Looby, 68 V.1. 683, 694-95 (V.I. 2018). For
instance, where an officer has “reasonable and articulable suspicion of criminal
activity,” the Fourth Amendment allows for a limited search and seizure without a
warrant or probable cause. Terry, 

; see Blyden, 53 V.I. at 647-48
(quoting United States v. Brignoni-Ponce, 

 (1975)).

414 “The principal components of a determination of reasonable suspicion or
probable cause [are] the events leading up to the stop or search.” Ornelas v. United
States, 

 (1996). In all cases, the officer’s suspicion must be “more
than an inchoate and unparticularized suspicion or hunch of criminal activity.”
Illinois v. Wardlow, 

 (2000) (citing Terry, 

) (internal
quotations omitted); United States v. Ramos, 

 (3d Cir. 2006); Ubiles,

224 F.3d at 217; Looby, 68 V.I. at 695; Rojas, 

 at *2.
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415 For a traffic stop, “the first Terry condition—a lawful investigatory stop—is
met whenever it is lawful for police to detain a vehicle and its occupants pending
inquiry into a vehicular violation. The police need not have, in addition, cause to
believe any occupant of the vehicle is involved in criminal activity.” Arizona v.
Johnson, 

 (2009). In a traffic stop, “the police officer effectively seizes
everyone in the vehicle, the driver and all passengers.” 

.
416 Where a warrantless search or seizure has occurred, the burden shifts to the
People to demonstrate by clear and convincing evidence that the officers’ actions fell
within a recognized exception to the warrant requirement. People v. Inecia, 

, {4 20-21.

ANALYSIS
417 This Court is presented with the issues of whether (I) the seizure of Lake, asa
passenger of a vehicle involved in a police traffic stop, was lawful; (II) whether there
was sufficient probable cause to search the vehicle; (III) whether the discovery of the
firearm stems from an illegal search; and (IV) whether Lake’s statement made at the
VIPD station should be suppressed as a fruit from a poisonous tree.

L The seizure of Lake during a traffic stop was valid and lawful.

418 Lake argues that his Fourth Amendment rights were violated when Velazquez
seized Lake and did not permit him to leave the area while Velazquez was performing
a traffic stop of the vehicle in which Lake was a passenger.

419 ‘Traffic stops are unreasonable under the Fourth amendment when there is no

articulable or reasonable suspicion that the vehicle or occupant is subject to seizure
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for violation of law. Delaware v. Prouse, 

 (1979). Under the law of
the Virgin Islands, “[n]o person may operate a motor vehicle unless the operator and
any passenger in the front seat of the vehicle are restrained by a lap and shoulder
restraint ....” V.I. Code Ann. tit. 20 § 466(b) (emphasis added). Here, the facts
demonstrate that the vehicle was pulled over because the driver was not wearing a
seatbelt. Velazquez testified that when he noticed the infraction, the vehicle was in a
well-lit area, and it passed in front of him. As such, given that Velazquez had
sufficient basis to believe that a traffic violation was committed, the traffic stop was
lawful.

420 The passenger of a car is also seized during a traffic stop within the meaning
of the Fourth amendment. Brendlin v. California, 

 (2007) (noting
that “any reasonable passenger would have understood the police officers to be
exercising control to the point that no one in the car was free to depart without police
permission); Prouse, 

 (“stopping an automobile and detaining its
occupants constitute a “seizure” within the meaning of [the Fourth and Fourteenth]
Amendments, even though the purpose of the stop is limited and the resulting
detention quite brief.”).

421 A lawful traffic stop was made, and Velazquez acted within the law when he
ordered the driver and passenger to step out of the car to perform an investigation.
See Brendlin, 

 (clarifying that “an officer may order a passenger out

of the car as a precautionary measure, without reasonable suspicion that the
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passenger poses a safety risk.”). Therefore, Velazquez’s seizure of Lake was not illegal
under the Fourth Amendment.

II. There was probable cause to search the contents of Lake’s bag.

422 Lake further argues that the search of his black bag violated his Fourth
amendment right because it was performed without a properly authenticated
warrant. Lake also contends that the search of the bag was not conducted for the
safety of the officer, but that the officer was specifically looking for marijuana.
Velazquez did concede that he was not in fear of his life while conducting the search.
But it is well settled that the smell of marijuana can establish reasonable suspicion
that marijuana is present in a place; but, given certain circumstances, the smell can
cause that suspicion to rise to probable cause. Looby, 68 V.I. at 698 (“the scent of
marijuana ... alone may be sufficient to establish reasonable suspicion or even
‘probable cause’ to conduct further investigation into possible criminal acts or
evidence of contraband.”); Ramos, 

 (probable cause may be established
if the smell of marijuana is articulable and particularized). And “police may search
an automobile and the containers within it where they have probable cause to believe
contraband or evidence is contained.” California v. Acevedo, 

 (1991).
423 In this case, Velazquez lawfully stopped the vehicle because the driver was not
wearing a seatbelt. As Velazquez approached the vehicle, he smelled marijuana
emanating from the driver’s window when he was about twelve to eighteen inches
from the vehicle. Lake exposed a partially burnt marijuana cigarette to Velazquez

when asked where the marijuana smell was coming from. And when asked if there
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was more marijuana in the car, Lake answered in the affirmative. Put together, these
facts provided Velazquez with probable cause to believe that Lake possessed more
marijuana and, probable cause to conduct a search of the vehicle and its contents. See
Looby, 68 V.I. at 701-08.

424 1Lake argues that the decriminalization of marijuana in the Virgin Islands
made the search of the vehicle illegal. The Court disagrees, as the V.I. Supreme Court
has found “that the Legislature’s intent .. . was only to reduce criminal liability for
possessing small quantities of the substance, while at the same time, keeping
marijuana as a controlled substance subject to seizure by law enforcement, regardless
of amount.” Id. at 697.

Ill. The firearm found on Lake is not fruit of a poisonous tree.

425 In Lake’s motion to suppress, he requests this Court suppress evidence of the
firearm found on his person, arguing that it is fruit of an illegal search and seizure.
Lake cites to several cases that discuss the exclusionary rule to argue that the
contents of his bag and the firearm should be suppressed. But Lake’s arguments rely
on the presumption that there was an illegal search and seizure. Here, as described
above, VIPD’s seizure of Lake was lawful since Velazquez had observed the driver
was not wearing a seatbelt, which is a traffic violation that supports a traffic stop.
Velazquez, thereafter, smelled marijuana emanating from the vehicle and Lake
manifested that he was in possession of a marijuana cigarette. Therefore, the cases
that Lake relies upon that discuss the exclusionary rule and the fruit of the poisonous

tree are not applicable.
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426 The People, on the other hand, do not discuss the suppression of the firearm at
all. The People’s opposition to the motion to suppress requested the motion be denied
on the grounds that there was a lawful basis to stop the vehicle and then to search
the vehicle. Nevertheless, the subsequent discovery of the firearm was made during
the lawful arrest of Lake for possession of ammunition. Therefore, the firearm was
not obtained through an illegal search or arrest and does not constitute fruit of a
poisonous tree.

IV. The statement made by Lake at the VIPD station does not fall
under the fruit of a poisonous tree doctrine.

427 Velazquez testified that upon entering VIPD station, Lake stated,
unprompted, that he needed the firearm to protect himself because he had been shot
before. Lake argues that this statement should be suppressed because it was elicited
without a voluntary waiver of his rights against self-incrimination and right to
counsel. Lake’s written motion contends that he was interrogated throughout the
search and seizure interaction with the officers and that there had been no showing
that he voluntarily waived his Fifth and Sixth Amendment rights.

428 The People’s opposition does not address Lake’s arguments regarding the
statement he made. Velazquez conceded that when Lake made that statement, he
had not been read his Miranda rights; however, Velazquez testified that he had no
intention to ask Lake any questions and Lake volunteered the statement. Velazquez

called it an “excited utterance.” But more importantly, no evidence was adduced
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during the suppression hearing that supports Lake’s argument that Lake was still
being interrogated when he was being transported to the booking room.

429 The Third Circuit has held that “the fruit of the poisonous tree doctrine does
not apply to derivative evidence secured as a result of a voluntary statement obtained
before Miranda warnings [have been] issued.” U.S. v. DeSumma, 

(8rd Cir. 2001). It has also been found that the exclusionary rule will apply in the
specific circumstance where statements are obtained not only in violation of Miranda
but also obtained involuntarily. U.S. v. Bass, Crim. No. 2016-0018, 

,
at *5 (D.V.I. Mar. 15, 2017) (unpublished); U.S. v. Rose, 189 F. Supp. 3d. 528, 537
(D.V.I. 2016).

429 Inthis case, the Court is not aware of any coercive tactics or interrogation that
occurred to elicit the statement from Lake. And no such evidence was presented
during the suppression hearing. Thus, the Court finds that though Lake was in
custody? by the time he made the statement, and he was not under interrogation‘.
Bass, 

, at *3 (cleaned up). The statement, therefore, is not fruit of

a poisonous tree as claimed by Lake.

3 “A suspect is in custody when there is a formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest.” Bass, 

, at *3.

4 “An interrogation has been defined as (a) conduct intentionally designed to evoke a confession, as
well as (b) any conduct an officer should reasonably have foreseen would elicit an inculpatory
response.” 

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CONCLUSION

430 The Court finds Velazquez had probable cause to conduct a traffic stop after he
observed the driver not wearing a seatbelt. Velazquez then smelled marijuana and
noted that Lake was holding a marijuana cigarette. Then Lake admitted there was
marijuana in the vehicle. This gave Velazquez probable cause to search the vehicle,
including the bag. That lawful search revealed a firearm. Thus, the firearm was not
a fruit of a poisonous tree. After his arrest, Lake made a voluntary statement, which
was not a fruit of a poisonous tree. Therefore, Lake’s Motion to Suppress will be
denied.

An Order consistent herewith will immediately enter.

DATED: January oye 2029 LY ee C2 Ajit dies

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

for LATOYA CAMACHO
Court Clerk Supervisor Ol /Q7/deL

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

PEOPLE OF THE VIRGIN ISLANDS,
CASE NO. ST-2019-CR-00253

Plaintiff,
Vs.

CODERO LAKE
Defendant.

VY SOS eo

ORDER
This matter is before the Court on Defendant’s Motion to Suppress.
In accordance with the Memorandum Opinion entered on this day, it is hereby
ORDERED that Defendant’s Motion to Suppress is DENIED; and it is further
ORDERED that a copy of this Order and the Memorandum Opinion shall be
served upon the Defendant and copies distributed to Assistant Attorney General

Eugene James Connor, Jr. and Chief Public Defender Samuel Joseph.

DATED: January a / , 2022

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

{4 LATOYA CAMACHO
Court Clerk Supervisor Gl /A7 / AX