SUPERIOR COURT OF THE. VIRGIN ISLANDS
DH [SIGN OF ST CROIX
PEOPLE OF [HF VlRGlN ISI ANDS I SX 2021 CR 198
PL “MIN“,
V.
FADE ASAD
DFFEVDMT
PEOPLE OF THE VIRGIN ISLANDS sx 2021 CR 199
PLAINTIFF,
V
DARNLEY PETERSON I CITE AS 2024 VI SUPER 1’9
Du m1)me
Appeal ances
Amie M Simpson, Esq Martial A VVebstel, Sr , Esq
Viigin Islands Depaitment of Justice Law Office of Martial A Webstm, Sr
St Croix, U 5 Virgin Islands St Croix U S Viigin Islands
[01 People offhe Vugm Islands F0) Fad< Asad
Ronald Russell, Esq
The Russell Law Firm LLP
St Croix, U S Virgin Islands
F01 DczrnelV Peter son
MEMORANDUM OPINION AND ORDER
WILLOCKS, Administrative Judge
1’} 1 THIS MATTER came before the Conn for a second suppiession hearing on July 26 2023
' There is a discrepancy between the Spellinu of Defendant Damely Peteison 5 last name in the information and in his
filings to wit the information Spelled it as Peterson while his filings spelled it as Petersen ’ The Lou“ will use
the ipdling used in the information since that is the initiating document and the spelling of the name therein was hex ex
amended
Peoplc offlzei I \ 45ml Pmph ()ft/zc VI 1 P(ICIS‘OII
SX 7021 CR198 SX 2021 CR199
Memorandum Opinion and Order 2024 \ I SLPER 44:?
Page 2 0f 16
BACKGROUND
{3 2 On September 13 2019 the People of the Virgin Islands (hereinafter People ) fi1ed a Joint
information against Defendant Fade Asad (hereinafter ‘ Asad ’) in criminal case numbex 8X 2021
C R 198 and Defendant Damer Peterson (hereinafter ‘ Peterson and together with Asad
‘ Defendants’ ) in criminal case number SX 2021 CR 199 based on the events that allegedly took
place on or about August 28 2021 as set forth in the affidavit ofPolice Officer 13w ayne E Walters
(hereinaftex Officel Walters ) dated September 13 2021 (hereinafter Walters Affidavit ) The
information charged both Asad and Peterson with the following counts
Count One FADE ASAD, when not authorized by law, did have possess, bear, transport,
or early either actua11y 0r constructively, open or concealed, 3 1116211111 to wit a black Glock
23 40 calibet bearing seIial numbel #BGHA928 in violation of Title 14 V 1 C § 2253(8)
(UNAUTHORIZED POSSESSION OF A FIREARM)
Count Two FADE ASAD when not authorized by law possessed firearm ammunition, to
wit multiple 4O ealibet live rounds in Violation of Title 14 V I C § 2256(a)
(POSSESSION OF AMMUNITION)
Count Three DARNLEY PETERSON, when not authorized by law did have possess,
bear transport, or calry eithe1 actually or constructively, open 01 concealed, a firealm to
wit a black Glock 23 40 caliber bearing serial number #BGHA928 in violation of Title
14 V I C §2253(a) (UNAUTHORIZED POSSESSION OF A FIREARM)
CountFou1 DARNLEY PETERSON when not authorized by law did have possess heal
transport, or calry eithe1 actually 01 constructively, open or concealed a firearm to wit a
black Glock 23 40 caliber bearing serial number #BGHA928 in a 4 door Grey Nissan
Altima with no license plate numbel in violation of Title 14 V 1 C § 2253(e)
(UNAUTHORIZED POSSESSION OF A FIREARM IN A VEHICL E)
Count Five DARNLEY PETERSON when not authoxized by law possessed fitearm
ammunition to wit multiple 40 caliber live rounds in Violation of Title 14 V 1 C §
2256(a) (POSSESSION OF AMMUNITION)
(Information )
fl3 A copy of Officer Walters Affidavit was filed with the information In his affidaVit
Officer Waltels stated in relevant part (i) on August 28 2021 Police Officer Jon Modeste
P(uple (gff/Ie I I \ 43nd People ofilu I I \ Pearson
S\ 2021CR198 5X 3021CR199 4})
Memorandum Opnuon and Order 2024 \ I SLPER
Page 3 of16
(hereinafter ‘ Officer Modeste ’) and Police Officer Robin Richards (hereinaftet ‘ Office:
Richards ’) were on mobile patrol in a marked police vehicle (ii) at around 10 28 p m Officer
Modeste and Officer Richards observed a four door grey Nissan Altima without a rear license plate
leaVing a parking space new the Napoleon’s Pizza in Petet 3 Rest on St Croix; (iii) at that time?
Officer Walters w as also on mobile patrol near the Napoleon s PiZZa in Petet ”s Rest on St Croix
(iv) Officer Modeste and Officer Richalds then conducted a traffic stop of said vehicle in the
parking lot of Napoleon 5 Pizza; (v) du1ing the tratfie stop Officer Waltels was positioned by the
driver side of the vehicle while Officer Modeste and Officer Richalds wele positioned by the
passenger side of the Vehicle; (vi) Officer Walters observed the front passenger latex identified as
Petelson begin to exit the vehicle (Vii) ‘ based on infmmation and belief while M1 Petels[o]n
was trying to get out of the Vehiele [Officer Richards] observed what appeal ed to be the handle of
a gun Vt 1th an extended magazine protruding from an open brown in color baekpack style bag that
was located on the floorboald of the vehicle (viii) about that same time, Offieer Walters asked
the timer later identified as Asad to pxoduee his d1iver’s license vehicle registration, and proof
ofinsuranee (ix) Asad was only able to able provide Otficel Waltels with the insurance card for
his vehicle; (x) while Offiee1 Walters was still standing by the driver side, Officer Modeste eame
around the vehiele and advised Offieel Walters that Officer Richards observed what appeared to
be a firearm in a brown bag on the fl001boaxd ofthe front passenger side ofthe vehicle, (xi) Officer
Walters then ordered Asad to exit the vehicle; (xii) Officer Walters and Officer Riehalds then
commanded Asad and Peterson to lay on the ground (xiii) Asad and Peterson were then advised
of the officers findings and Officer Walters asked them ‘ who does the firearm belong to;’ (xiv)
both Asad and Peterson leplied that ‘ it doesn’t belong to us ” (xv) Asad and Peterson were then
asked it eithet of them had a license to possess the firearm that was in the ear and they both replied
Pwplt (1f (12c I I \ 45111] People OjI/IL I I t Ptruxon
SX 302l (R :98 5X 202l CR 199
Memorandum Opinion and OrdLr 2024 VI SUPER fig
Page 4 0t l6
‘ no; (xvi) Asad and Peterson Vt ere then placed in handcutts and patted down before being placed
in the panel unit (m ii) Fetensic Technician Makima Wilkinson (heteinaftet Offieer Wilkinson ’)
and ITorensic Teehnielan Elyce Fleming came to the scene to process the vehicle and collect the
firearm (mitt) Officer Wilkinson teem ered the follOVting hem the vehicle a firearm that was a
blaek GlOek 23 40 caliber suial number BGHA928 which contained thirteen live 40 caliber
rounds in the black magazine and one 40 caliber round in the chamber and a second black
magazine that contained nine live 40 caliber rounds and (xix) the Custodian of Reeoxds fin the
Firearm Bureau confirmed that neither Asad nor Peterson hax e a license to possess firearm in the
U S Virgin Islands (Walters Aff)
1] 4 On July 21 2022 Asad filed a motion to suppress any evidence seized and statements
made by [him] ’ and a memOIandum of la“ in supp01t thereof in criminal case number SK 2021
CR 198 7 On August 1 1 2022 the People filed an opposition theteto 3 After the People filed their
opposition on Septembet 18 2022 Peterson filed ajoindet of Asad s motion to suppress and his
own motion to suppress ‘any evidence seized and statements made by [him] ’ in criminal case
number SX 2021 CR 199
1] 5 On Septembel 23, 2022 this mattet came before the Court tor a suppression heating At
the end of the suppression hearing, the CGun ordered the parties to file bupplemental briefings on
certain issues that were raised for the first time at the heating The People, Asad, and Petelson filed
their supplemental briefs on October 3, 2022 October 7 2022 and October l 1, 202 A respectively
7 Asad attached the following to his motion Exhibit 1 "[110 Walters Affidavit
‘ The People attached the tollouing to their opposition Exhibit A Photo of dark gray \ehlcle without a registration
sticker affixed to the 10v» er left comer of the windehield and without a front license plate affixed; and Exhibit B Photo
of the interior 01‘ the front passenger side of a vehicle and the contents contained therein
People 0/1/15 I I \ 4sad Peoplc affix L 1 \ Petelsm
5X 2021CR198 SK 2021 CR 199
Memorandum Opinion and Order 2024 VI SUPER Q
Page ‘ 0f 16
fl6 On July 10 2023, the Court entered a memorandum Opinion and order (hereinaftei ‘July
10 2023 Order ’) whereby the Court held that ‘ by not having the registration sticker and the front
license plate affixed to his vehicle in the parking lot of Napoleon’s Pizza, Z\sad committed tiatfie
Violations and the traffic stop to investigate the Violations was lawful ’4 but noted that a second
suppression hearing was necessary to address the issues Defendants raised for the first time at the
hearing, and in their supplemental briefs to wit, issues as to the plain view doctrine and the lack
of in court identification at the September 23 2022 suppression hearing
11 7 On July 26 2023, this matter came before the Court for a second suppression hearing
limited to the following two issues (i) whether it was immediately apparent that the item observed
is evidence of a crime contraband or otherwise subject to seizure and (ii) what implications, if
any result from the lack of in cou1t identifications at the first suppression healing The Court heaid
arguments from the parties and the testimony of the People 3 witness Officei Robert Richards
(hereinafter ‘ Officer Richards’ ); neither defendant presented any witnesses Officer Richards
testified mic; aha that he had specialized training in tiiearms that he saw the black object in a
brown bag in plain view on the floorboard of the front passenger side of the vehicle that he
immediately recognized the black object as the butt of a firearm and that Defendants before they
were advised of their Miranda rights were then asked if they had a license to carry the firearm
which they answ e1 ed in the negatiVe Given that there was no testimony that the officers had any
reason to believe that Defendants lacked a license to carry the firearm until Defendants told the
officers that they did not have one Unzted Slates \ sz/cs 224 224 F 3d 213 (3d Cir 2000) and
4 The Court referenced Rodi zgue \ U S 573 U S 348 334 (2013) (1 he United States Supreme Court held that [a]
seizure for a traffic Violation justifies a police investigation of that \iolation and explained that ‘ [a] relati\e1y briet
entounter ’ a routine traffic stop is more analogous to a 50 called Tenj stop than to a formal arrest ) (citations
omitted)
Pwplc ojthe I I t Asuc/ People 0/1/20 V] \ [’tluson
SK 2021 CR 198 SX 2021 CR 199
Memorandum Opinion and Order 2024 VI Sl’PLR 2Q
Page 6 01 16
its progeny were triggered At the end of the hearing the L curt gave the parties the opportunity to
file supplemental btiefings as to the implications of Lbzles and its progeny hue if any Petetson
the People and Asad filed theil supplemental briefs on March 20 2024 Aplll 2 2024 and Aptil
5 2024 1e§peetively
STANDARD OF REVIEW
11 8 ‘1 he Fourth Amendment protects persons from ‘unreasonable searches and seizutes ”’
People of flu VJ \ Loobv 68 V I 683 694 (V I 2016) To conduct a valid search undet the
Fourth Amendment generally a Judge 0r magistrate ‘ must issue a wanant upon a finding of
probable cause that describes with particularity both the place to be searched and the pexsons or
things to be seized [d Sealches conducted “without prior approval by judge or magistrate me
[361 59 umeasonable undel the Fomth Amendment subject only to a few specifically established
and well delineated exceptions Id (internal quotations omitted) Furthermore as to seizmes the
Fourth Amendment ‘ applies to all seizures 01 the person including seizures that involve only a
briefdetention short oftraditional arrest 3/1616]? 1 People ofthe VI 53 V I 637 647 (V I 2010)
(citing Blown \ Texas, 443 U S 47 50 (1979) (internal quotations omitted»
119 “Although the burden of proving that a seanch or seizule was unlawful nonnally rests
with the defendant, when the police conduct a sealch 01 seizu1e without a wanant the burden
shifts to the govemment to prove exigent circumstances 01 another exception to the warrant
tequitement ” Nzcholas 1 People of the VI 56 V I 718, 738 (V I 2012) (citations omitted), see
3 ‘ The Fourth Amendment is applicable in the Virgin Islands pursuant to § 3 0f the Raised Organic Act of 1954
PCOPIL ofihc I I \ Glasfma' 2027 VI LEXIS 40 at *10(VI Supel Ct Apr 19 2022) (Citing Ptopleqftlu I I \
Almmang 64 VI 528 530 nl (VI 2016) (citing Raised Organic Act of 1954 § 3 48 U S C § 1561 lepzmzul
mVI CODE ANN Historical Documents Organie Acts and U S Constitution at 87 88 (1995 8. Supp 2013)
(preceding V I CODE Arm tit 1))
People of 1/2: I 1 \ 45(ch People (1/1/18 1/ I \ PER son
SK ’021CR198 S\3()21CR 199
Memmandum Opinion and Order 2024 VI SLPER 10
Page 7 01 16
Aimslmng,
64 VI at 537 ( Although ordinarin it is the defendant who bears the bmden 0t
preying that exidence should be suppressed this is not the case it a defendant has moved
to suppress evidence on grounds that it w as obtained without a wanant in violation of the Fourth
Amendment In such cases although it is the defendant who has made the motion it is the
ploseeution that heals the burden of proving that the warrantless search was 1easonab1e ) Any
evidence detived 1mm a Fourth Amendment Violation must be excluded from t11a1 as fruit of the
poisonous nee ’ B/yden, 53 V 1 at 650 (citing Wong \ US 371 U S 471, 488 (1963))
DISCUSSION
1 I ack of In Court Identification at the September 23, 2022 Suppression Hearing
'11 10 The issue posed before the Court is whether the1e must be an in court identification of
each defendant at the suppression hearing as either the drivel or the passenger 01‘ the V6111<1€
stopped Defendants argued that the lack of in court identification at the first supplession hearing
was fatal to the plosecution and thus, the Court should dismiss the Charges against Defendants
The People disagleed and a1 gued that an in court identification was not necessary at the
suppression hearing
1] 1 1 The Court 5 1esearch disclosed no Virgin Islands pxeeedent on point Howwel a teview
of the United States Supreme Court ptecedent makes it very clear that the Fourth Amendment
rights is a personal light which may not be vicariously asserted See Whole Woman’s Health \
Hellelsfcdl 579 U S 582 630 (2016) (quoting Aldmman V bnzted Stain 394 U S 165 174
(1969)) (Fourth Amendment rights are pu1e1y personal) see also Rakas \ 11/117025 439 U S
128, 140 n 8 (1978) V I R CRIM P 41(g) (‘ A person aggxieved by an unlawful search and seizuxe
of property 01 by the deprivation of property may mme tor the property's tetum ) 1n othel welds,
a defendant must show that he was in fact the victim of a patticulal Fourth Amendment Violation
Pwpleqft/zc I I \ 4311c! People offlze VI t Petenon
SX 2021CR198 SK 2071 CR 199
Memorandum Opinion and Order 2024 VI SLPER B?
Page 8 0t 16
to challenge the legality of the sealch or seizuie See Jldelman t Untied States, 394 b S at 173
(quoting Jones V Lmled States 362 U S 257 261 (1960)) ('ln ordei to qualify as a 'person
aggrieved by an unlawful search and seizure' one must have been a victim ot a seateh or seizure
one against whom the search was directed as distinguished from one who Claims prejudice only
through the use of evidence gathered as a consequence of a search or seizure diieeted at someone
else ) With this in mind the Court finds that when Asad and Peterson filed their iespeetive
motions to suppress Asad and Peterson eaeh alleged that he himself was a ‘ Vietim of an invasion
of ptivacy ’ By alleging that he himself was the victim of an illegal search and seizu1e as a result
of an illegal stop Asad effectively claimed that he was the driver as stated in his motion and that
he is entitled to claim that the search and seizure by the officers occuned in violation of his Fourth
Amendment rights; similarly by alleging that he himself was the Victim of an illegal search and
seizure as a result of an illegal stop, Peterson effectively Claimed that he was the passenget as
stated in his motion and that he is entitled to claim that the search and seizure by the officers
OCeurted in violation ofhis Fourth Amendment rights 6 See Jones 362 U S at 261 S(e also Rakas,
439 U S at 132 Had the evidence revealed that Asad was not the driver or that Peteison was not
the front passengei then they would not have standing to pursue the suppression of evidence and
statements and to seek to vindicate their Fourth Amendment lights However no such evidence
was introduced at the suppression hearing and the People did not contest Detendants’ allegations
“ In their respective motions both Defendants referenced the WalteIs Affidavit which identified Asad as the driV ex
and Peterson as the front passenger While it is true that Defendants stated therein that they ‘contest[] the facts of the
[Walters] Affidavit it appeals that they only contested to Officer Walters statement that the officers observed a
four door grey in color Nissan Altima bearing no rear license plate leaving a parking space near the Napoleon's Pizza
in Peter's Rest ’ to wit Defendants argued that ‘ [t]he officels were not able to see from the f: ont of the \ehiele that
the vehicle did not have a license plate in the back of the vehicle xx hieh the officers articulate for theii reason fox
stopping defendant s xehicle (Asad Motion 5 Peteison Motion 4 ) There was no mention of any dispute over Asad 8
identity as the drivel of the vehicle and Peterson’s identity as‘ the front passenger ot the x ehiele
Peoplc ojl/n L I \ Amt] Peoplc ()jiht L I \ Penman
SK 2021 CR 198 SK 7021 CR 199
Memorandum Opinion and Order 2024 VI SUPER Q0
Page 9 of 16
that Asad was the driver and Petetson W as the hunt passenget and that they W616 the indi\ iduals
sealehed and seized by the officers Thus the Coult finds that Defendants” allegations in theix
supplession motions sufficed to establish Asad as the drivel and Pete son as the passenget seeking
Lonstitutional p1 oteetion and the People bears no burden at the suppression heating to p10\€ that
Defendant's were the \ietims 0f the alleged illegal police eonduct As such, the Ccurt concludes
that the People do not have an obligation at the hearing on Defendants’ motions to suppless as
they do at a ttial 0n the metits, to identify Defendants as the indiyiduals who ate alleged to have
Lommitted the crime Additionally, where Defendants hax e challenged the legality of a seareh and
scum as unsupported by probable cause \ia motions to suppress, the (OUIt finds that that such
motions are not convetted to a probable cause hearing where the People must move to a probable
cause standatd that the defendant committed a crime V I R CRIM P 5(b)(1) (“The court shall
considet any atfidayit or information then filed, and shall examine the arresting Officer and/Ot any
other witnesses to the crime under oath at the Initial Appearance Heating The defendant may
cross examine witnesses against him If f10m the evidence it appeals that thete is pxobable cause
to believe that an offense has been committed and that the defendant committed it the judge ox
magistrate shall forthwith hold the defendant to answe1 the complaint The finding of probable
cause may be based upon healsay evidence in whole or in part ’); V I R CRIM P 5(b)(2) (‘ It the
judge or magistrate judge detennines at the Initial Appearance hearing that thele is no ptobable
cause to belieV e that any offense has been committed 01 that the accused committed it the court
shall dismiss the ploceeding, dischaxge the accused and exonerate any bail posted The discharge
of the accused shall not preclude the Government from instituting a subsequent preseeution tm the
same offense based an additional facts or evidence ”) To put it another way, a motion to suppress
plaees upon the People the burden of proving that the officers did not Violate Defendants’
Peopk 0/1/28! I 1 11m! PFUPIL 0/ r1161 I 1 Penman
SX 2021 (R 198 3X 201CR199
Memorandum Opinion and Ordel 2024 VI SI. PER 4/0
Page 10 01 16
eomtitutiona1 tights in Older tor Detendants t0 ploeeed with theiI motions to supptess eaeh
defendant must bting himself before the Court as the person whose rights were allegedly vio1ated
and once the defendant has done this by filing a motion to supptess, identity is not at issue at the
suppression hearing and there 1% no need for the in eourt identification of Detendanta theleat
2 Plain V1e“ Doctrine
11 12 The plain view doetline is a well established exception to the warrant tequirement Gunth
1 People of the VI 64 V I 491, 508 (V I 2016) In Crumbs the Vilgin IsIande Supteme Court
noted that under the plain View doettine an offieel may make a wanantless seizuxe of any item
that he or she has Viewed hem a place 01 position in which he or she 11 as lawfully entitled to be
pIOVided it is immediately apparent that the item observed is evidence of a mime contxaband or
otherwise subject to seizute 64 V I 491 508 09 (V I 2016) (citing Thomas 1 People 63 V I
595 606 n 4 (eiting T616151 BIOHH 460 U S 730 741 (1983))) The United States Supleme Court
explained that ‘ [i]f while conducting a legitimate T6111 sealeh the Officer should as hele
disem er eont1 aband other than weapons he dearly Lannot be tequired to ignore the contraband
and the Fourth Amendment does not requite its suppxession in such circumstances ’ Gumbv, 64
V I at 509 (quoting Mznncsota 1 Dielselson, 508 U S 366 (1993) (quoting Mzcl1lgan1 Long 463
U S 1032 1050 (1983) and Citing bzblon1 [V(It Imk 392 U S 40 69 70 88 S Ct 1889
20 L
Ed 2d 917 (1968) (White J eoneurrinb)))
‘11 13 At the second supptession hearing,7 Office] Richards testified that he is knowledgeable
about firearms and that he was in dose proximity to the vehicle when he spotted the black object
In the Jul} 10 2023 Order the Coult explained
‘1' 25 Ihmugh the atfidax it and testimony oi Officer Walters, the People established (1) during the ttatfie
Stop Ottxeex Walters was Standing by the drix er side of the \ ehiele (ii) during the traffic stop other otfieers
including Officer Richards wele standing by the pashengex side of the 1ehie1e and (iii) Office: Richalds
Peop/c Oft/zc I I \ 4&1th People 0/ [11¢ II 1 P(IUSOH
5X 2021 (R 198 5X 2021 CR 199
Memm andum Opinitm and Order 2024 \ I SLPILR f i Q
Page 11 0t 16
in plain View which he immediatelv recognized the object as the butt of a firearm In light of
Office: RIChEllClS testimony and giVen that the Court already found the initial stop to be lawful
the Court concludes that the plain View exception to the warrant requirement applies to the fiiearm
seized fiom the vehicle
3 thlev and 118 P1 ageny
11 14 As noted above, Ubiles and its progeny were tiiggeied at the sewnd suppression hearing
when there was no testimony that the officers had any reason to believe that Defendants lacked a
license to catty the fitearm until Defendants told the officers that they did not have one In szles
the stop and frisk originated aftet a member of the public informed a law enf01cement officer that
a man Ubiles standing on the sidewalk at a crowded event possessed a gun The pat down
search of Ubiles revealed a maehete and an unregisteted firearm and the United States
subsequently filed an indictment against Ubiles for possession of a fiiearm with an obliterated
serial number in violation of federal law 18 U S C §§ 922(k) 924(a)(l)(B), and possession 0t an
unregisteied firearm in violation OfVirgin Islands law Title 14 V I C § 2253(a) szles 224 F 3d
at 215 In teviewing the District Court 5 decision to deny Ubiles s motion to suppiess the fiiearm,
observed what appeared to be the handle ofa gun with an extended magazine protruding from an open brown
in color backpack style bag that was located on the fioorboard 0f the vehicle
‘1 26 In this instance Asad and Peterson 9 counsel did not raise any arguments as to the circumstances
surrounding Peterson s act of attempting to exit the vehicle Thus the Court construes that the defense
counsel do not dispute the lawfulness of the circumstances surrounding Peterson s act of attempting to exit
of the vehicle Since the Court finds that the traffic stop was [awful and the defense counsel did not dispute
the lawfulness of the circumstances surrounding Peterson S act of attempting to exist the vehicle the C Quit
finds that the officers Vt ere lawfully entitled to be standing by the passenger side of the vehicle Gumbs 64
V I at 508 9 HoweV er as noted above the officer that initially observed in plain \ iew the item that appeared
to be a fireann did not testify at the suppression hearing since this issue was raised for the first time at the
suppiession hearing Thus the Court cannot determine whethei it [wa]s immediately apparent that the item
obserV ed is e\ idenee of a crime contraband or otherwise subject to seizure ’ Id At this junctute the Court
will schedule a second suppression hearing to address this issue 7 Gix en that the plain flew dOCttine is an
exception to the warrant requirement the Court cannot address the defendants argument as to lawfulness 01
this “arrantless search until after the Court detemlines whether the plain View doctrine is applicable here
(July 10 2023 Order)
People 0} 1/201 1 x 43m! People of [1161 I t Peterson
SK 2021 CR 19% 8X 7021 (R 199
Memorandum Opmlon and Order 2024 \ I SLPER 2’5;
Page 12 of 16
the Third C iicuit held that ‘[i]t is not necessarily a crime to possess a them m in the Virgin ts1ands
1101 does a mere allegation that a suspect possesses a firearm as dangerous as firearms may be
justify an otficer in stopping a suspect absent the reasonable suspicion required by 761.7) ’ and
ultimate1y concluded that the firearm seized was the fruit of an un1awful seizure because
reasonable suspicion was not present in the absence of any evidence that the Ubiles illegally
possessed the gun or was otherwise engaging in criminal activity [0’ at 217 18 (citations omitted)
However ‘ in the years after Ubrles was decided, the Third Circuit found constitutional a stop and
frisk initiated based solely on a tip that an indiVidual possessed a firearm People 0/1/20 I I \
Mime]! 56 V 1 796 806 (V 1 2012) (citing UntiedSmteSi Gatlm 613 F 3d 374 378 79 (3d Cir
2010) Lizzted Slatesx Valennne 232 F 3d 350 357 (3d Cir 2000))
11 13 In their respective supplemental brief Defendants essentially argued that the Court shou1d
giant their motions to suppress because similar to the circumstances in szlcs reasonable
suspicion was not present in the absence of any evidence that they illegally possessed the firearm
or was otherwise engaging in criminal actixity (Asad Supp Brief Peterson Supp Brief ) In their
supplemental brief the People argued that the Court should deny Defendants motions to suppress
because they completely failed to assert their Fifth Amendment right and failed to properly assert
their Fourth Amendment rights under szles and should be ‘ limited to seeking suppression 011
[the grounds of plain view and the lack of in court identification] (People 3 Supp Brief)
11 16 The CQuit notes at the outset that szles is merely persuasiVe authority not binding
authority since it was before the Third C iieuit on appeal from the District Court of the Virgin
Islands sitting as a federal trial court See E1 nest \ MOIllS 64 V I 627 638 (V I 2016) ( In other
words Third C ircuit decisions are merely pelsuasive authority if the ease was before that court on
appea1 from the District 01‘ Delaware, the District ofNew Jersey the Eastern Western, or Middle
7’ 017A 0/ thel I 1 4x“! Pwpleofrhef I \ Peteimn
8X 2021 CR 1)? 5X 2021 CR 199
Memorandum Opinion and Order 2024 VI 81 PFR _/_I/0
P lg€ 13 of 16
Distiiets of Pennsyhania 01 the District Court 01‘ the Vitgin Islands Sitting as a federal trial
eourt ”) sac also Wyatt“ 1 People 38 V I 315 327 27 (V 1 2013) (rejecting the paxties‘
assertion that a deeieion in a case that originated in the Western DiStIiLt 0t Pennsylx ania is
binding on the Supetiot (Quit and noting Although we pteviously instructed that decisions
rendered by the Third Cimuit are binding upon the Supeiior C Gum even if they would only
represent persuasiVe authmity when this Coutt considers an issue, we have made this statement in
the context of decisiom the I hiid C ircuit tendered while sewing as the dc facto court of last resort
in the Vii gin Islands ) (alterations, citations and internal quotation marks omitted) Thus while
the Court acknowledges the Third Citeuit’s holding in (Ibz/es the Court finds it unpersuasive,
especially in light of 11mm]! 1n Mime]! the Viigin Islands Supreme Court questioned the Third
Citeuit’s eonclusion in szles and Len lS‘ that local \I iigin Islands law does not Lontain a
presumption that an individual laeks a permit to carry a fixeai‘m,8 pointed out that section 488 [of
3 1n Lents the Third Circuit distinguished (Jhllcs from 0:1!!!" a Delaxxaie case by noting that the decisions were
bEISLd on Virgin Islands and Dela“ are loud law respectively
For cases arising out 01 the Virgin Islands the treatment afforded fiieamts undei territorial law continues
to be of paramount importance in our anal) sis In Unztca’ Start s 1 Gatlm 613 F 3d 374 (3d C11 2010) an
offieei received a tip from a reliable source that a man wag Vt alking on a street in Wilmington Delaware Vt ith
a firearm in his jacket [(1 at 376 77 Based on the mans description otfiteis responded to the area wheie
the infomnant indicated that the man could be found It! at 377 Officers located the man handcuffed him
and patth him down finding an unlicensed handgun in Violation of Delaware 1cm Id
We noted that the facts in Gatlm resembled those in Lbzles i e the sole evidence to Support the Tent stop
was a tip about a firearm but nonethelees concluded that reasonable suspicion existed to frisk the defendant
fox weapons [(1 at 378 79 Critieal to our analysis was the presumption under Delaware law unlike in the
Virgin Islands that an indiVidual has no license to early a concealed firearm Id 1 he reliable tip coupled \\ ith
the piesumption of illegality pr0\ ided officeis with reasonable suspicion to conduct an int estigatory stop
within the confines of Ten} 1d at 379
It is lawful for certain individuals in the Virgin Islands to cam a firearm provided that a license is
obtained See V I CODE ANN tit 23 § 454 I [MIL v recognized that the possession of a filearm in the Virgin
Islands in and ofitself does not prOVide officeis with reasonable suspicion to conduct a Tel )3 atop 224 F 3d
at 217 ( [A] men. allegation that a suspect possesses a fiiearm as dangerous as firearms may be, [does not]
justify an officer in stopping a suspect absent the reasonable suspicion ) Indeed Virgin Islands 1am mntains
no presumption that an individual lacks a pcmtit to carry a firearm Gallm 613 F 3d at 378 79 As “6
obserwd in (Jailm the GOV emment beats the burden of ptoof in the Virgin Islands that the defendant h 1d no
license for a teeovued firearm Id at 379 (citing Lint“! States 1 tickle 1 l2 F 3d 626 630, 36 V I 367 (3d
Cit 1997))
People Q/I/IL’ I I i Asad People (3/1716 1 I i PLfL’leI
8X 2021CR198 5X 2021 CR 199
Memorandum Opinion and Order 2024 \ I 31 PER 5229
Page 14 0t 16
Title 23 of the Virgin Islands Code] may provide authority for the proposition that the 1 egislatute
intended for law enforcement officeis to piesume illega1ity when intormed that an indiVidual who
is not obviously authorized to earry a filearm is carrying a tiieamn in public notwithstanding the
tact that the government in a Ciiininal prosecution, would hear the burden of proving that the
firearm is unlicensed, Mandi, 56 V1 at 812 and noted that ‘ 10ea1 Virgin Islands fireaim
licensure laws may not necessarily be significantly diffeient from Delawate 1an , which the Thiid
C ircuit conducted provides a presumption of illegality ’9 Id 56 V I at 812 n 13 NBXBI'th616SS
[n]otwithstanding the fact that legitimate, non frivolous a1 guments exist to depart
from L/bzles and Lem; and despite the existence of section 488 [the Virgin Islands Supreme
Couit] deeline[d] to Iesolve this issue as part of this appeal because the People have failed to
argue either before the Superior Court or in theii appellate brief that szles 01 I ems were
wrongly decided and that this Court should hold that a piesumption exists under section 488 that
an individual lacks a permit to cairy a fitearm in the Virgin Islands Id 56 V I at 812 13 In this
instance, consistent with the Viigin Islands Supieme Court’s leasoning in Muncll, the Comt
concludes that there is a presumption under Viigin Islands law that an individual lacks a license to
carry a firearm under section 488 of Title 23 of the Virgin Islands Code (hereinafter ‘Section
LL11 Is 672 F 3d at 239 40
0 In 14mm]! the Virgin Islands Supreme Court explained
At first glance, it may seem that Delaware imposes greater restrictions on the carrying of concealed Weapons
than the Virgin Islands in that the pertinent statute imposes numeious requirements not found in the V irgin
Islands C ode such as requiring applicants to submit chaiaeter affidavits and to file proof of completion of
firearms training, courses Set DEL CODE ANN tit 11 g 1441 HoweVer whi1e chapter 5 0ftit1e 23 imposes
several limitations on who may attain a license to possess a firearm section 485 vests the Police
Commissioner with the authmity to impose additional rules and regulations that upon approyal by the
Governor shall hax e the force and effect of law We note that sex eral 0f the additional requirements found
in the Delaware statute have also been adopted in the Virgin Islands but are found in these regulations rather
than in the Virgin Islands Code itself Sm a g 23 V I R R § 485 6(a)(4)(D) (completion of recognized
course in tiiearm safety)
Paople offlzc I It Winn]! 56 VI 796 812 n 13 (2017)
Peop/eoft/zel I \ 48ml Ptople affirm) I I \ Pittman
SK 2071 CR 198 SR 2021 CR 199
Memo: andum Opinion and Ordtr 2024 \ I SLPE: R h
Page la of 16
488 ) which unambiguously places the burden upon the inditidual to produce ex idenee that he
is entitled to so wear carry or transport the firearm pursuant to seetion 454’ in the event that the
l ’1
officer discovers during the stop and search that the 1ndn1dual possesses a firearm “ Title 23
V l C § 488(b) In fact, the language under Section 488 authorizes the officer to inquire ot the
individual whether he/she has a licmse to carry the firearm, and that ‘ [i]t the person is unable to
produce such evidence the officer may then seize the firearm and arrest the person ’ 10’ Here
neither Asad nor Peterson was able to produce evidence that either possessed a license to carry the
” lhe statutes leads in its entirety as fOIIOWs
(a) Any law enforcement officer who in the light of his obserx ations infomiation and experienee has a
reasonable belief that (i) a person may be Vt caring carrying 01 transporting a firearm in violation of section
434 of this title (ii) by virtue of his possession ofa firearm such person is or may be presently dangerous to
the olficei or to others (iii) it is impracticable under the circumstances to obtain a search warrant and (it)
it is necessary for the officer's protection or the proteetion ofothers to take swift measures to discoy er whether
such person is in fact, wearing carrying or transporting a firearm such officer may
(1) approach the person and identify himselfas a law enforcement officer
(2) request the person‘s name and address and if the person is in a \ehicle his lieenst to operate
the \ ehicle and the \ ehicle's registration and
(3) ask such questions and request such explanations as may be reasonably calculated to determine
\\ hether the person is in fact unlawfully wearing carrying or transporting:r a firearm in yiolation of
section 454 of this title and
(4) it the person does not give an explanation “/11th dispels the reasonable beliefwhieh he had he
may conduct a search of the person limited to a patting or frisking ofthe person s clothing in search
of a firearm The police officer in acting under this section shall do so with due regard to all
circumstances 01 the occasion including but not limited to the age appearance physical condition
manner and sex of the person approached
(b) In the event that the otficer discox ers the person to be \t earring carrying or transporting a firearm he
may demand that the person produce evidence that he is entitled to so wear Larry or transport the firearm
pursuant to section 454 of this title If the person is unable to produce such e\idence the offiLer may then
seize the firearm and arrest the person
((3) Nothing in this section shall be construed to limit the right of any police otficei to make any other type of
search seizure, and arrest which may be permitted by law
Any police officer sued in a CtV i1 action for conduuing a search or seizure pursuant to this section which is
alleged to be unreasonable and unlaxx ful shall upon his request be defende in said action and any appeals
therefrom by the Attorney General
Eyery police officer who conducts a search or seizure pursuant to this section shall \\ ithin twenty four hours
after such search or seizure file a written report with the U S V i1 gin Islands Police Department (V I P D )
describing the eircumstances surrounding the search or sei7ure and the reasons therefor on a form preseribed
by the Polite Commissioner Such report shall include the name of the person seaiLhed
Title 23 VIC g 498
People ofrlu’ 1 I 1 Jun! People of flu’ I I 1 PL uson
8X 2021 LR 198 SK 20 [CR 199
Memorandum Opinion and Order 2024 X I SUPER w
Page 16 of 16
firearm and when the 011106.15 inquixed Asad and Petelson eonfumed that they did not hm , bUCh
a lieense AS such the C 01111 finds that there was no Miranda Violation and that there “as no
i11cgality 0f the seizure of the fileann
CONCLUSION
‘11 17 Based on the foregoing the Court will deny Defendants’ motions to suppless Aceoxdingly
it is hexeby
ORDERED that Asad 8 July 21 2022 motion to suppress is DENIED filed in criminal
case numbel 8X 2021 CR 198 And it is tuxther
ORDERED that Petemon 5 Septembel 18 2022 motion to suppress filed in criminal case
number SX 2021 CR 199 is DENIED 1»
5/
DONE and so ORDERED this d0 day of April 2024
/ J / \/
ATTEST k 2 1“ J
/ (/ 3%!
I amala Charles HAROL w L WILLOL KS \
Clerk ofthe Loan Administratixe Judge of the Superior Court
13)
COLIN. C r1< S lpervisol
Dated f” g %flZL
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Croix
People of the Virgin Islands v. Case Number: SX-2021-CR-00199
Darnley Petersen Charges: 14 V.I.C. 2253(a) - Possession
Of An Unlicense Firearm
14 V.I.C. 2253(E) - Unauthorized
Possession of a Firearm in a Vehicle
14 V.I.C. 2256(a) - Possession Or Sale Of
Ammunition
NOTICE of ENTRY
of
Memorandum Opinion and Order
To Robert J. Pickett, Esq. Ronald E. Russell, Esq.
:
Please take notice that on April 29, 2024
a(n) Memorandum Opinion and Order Denying Motion to
Suppress
dated April 26, 2024 was/were entered
by the Clerk in the above-titled matter.
Dated April 29, 2024 Tamara Charles
:
Clerk of the Court
By:
Iris Cintron
Court Clerk Supervisor