IN THE SUPERIOR COURT OF THE VIRGIN ISLA
NDS
DIVISION OF ST CROIX
PEOPLE OF THE VIRGIN ISLANDS ‘ Criminal No SX 19 CR 69
Plaintiff Charge(s)
! Unauthorized Possession of a
v Firearm By Felon
14 VI C § 2253(a)
Unauthorized Possession of a
KAREEM B SMITH Firearm in a Vehicle
14 V I C § 2253(6)
Defendant Possession of Ammunition
14 V I C § 2256(a)
Possession of a Controlled Sub
stance with Intent to Distribute
J 19VIC § 604(a)(1]
Cite as 2021 VI Super 105U
Attorney Amelia B Joseph. Esq ,
Office of the Territorial Public Defender
#1 B Clifton Hill 2"CI Floor
Christiansted St Croix
U S Virgin Islands 00822
Attorney Amie Simpson, Esq
Assistant Attorney General
V I Department of Justice
#213 Estate La Reine
#6151 RRl St Croix U S V1 00850
Virgin Islands 00820
MEMORANDUM OPINION ORDER
Jomo Meade. Judge
(II 1 THIS MATTER is before the Court on Defendants
Motion to Sup
press evidence recovered by law enforcement officers
after he was stopped
for administrative inspection of the vehicle he
was operating and his
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person and personal effects were seized and searched For reasons set
forth below the Motion to Suppress is GRANTED
FACTUAL BACKGROUND
‘II 2 Defendant Kareem Smlth operates a commercial vehicle as an em
ployee of Marco St Croix Inc a Virgin Islands commercial enterprise On
April 10 2019 he was driving his employer 8 Mack truck on Manning Bay
Road in the vicinity of the Henry Rohlsen Airport At the same time Motor
Carrier Safety Coordinator Charles Moorhead in the company of Sgt Al
exander Moorhead and Sgt Samantha Smith officers of the Virgin Islands
Police Department ( VIPD ) were conducting motor carrier safety inspec
tions in the area The officers commanded the Defendant to pull the truck
over to the side of the road to the inspection area He complied Motor
Carrier Coordinator Charles Moorhead and Sgt Alexander Moorhead ap
proached the vehicle
‘I[ 3 The sequence of events immediately following the stop of the truck
is unclear because the testimony of the Witnesses exhibits sharp disputes
and contradictions Charles Moorhead testified that he approached the
truck introduced himself and informed the Defendant of the kind inspec
tion they were about to conduct During the Introduction Sgt Alexander
Moorhead stopped Mr Charles Moorhead from assisting in the inspection
took him aside and instructed Mr Charles Moorhead to stand by and
watch while Sgt Moorhead showed him the ropes in conducting
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inspections Charles Moorhead stood back and observed while Sgt Moor
head interacted with the Defendant Some moments later Sgt Moorhead
came back to inform Charles Moorhead that he smelled marijuana and
returned to continue the interaction with the Defendant
‘JI 4 Sgt Moorhead testified that he pulled the truck over and directed
the driver to take the vehicle to the inspection site where Mr Charles Moor
head was conducting the inspections Sgt Moorhead went to assist
Charles Moorhead with the inspection It was upon observing the interac
tion between the Defendant and Mr Charles Moorhead that Sgt Moorhead
detected the odor of marijuana at which time he took over the inspection
Sgt Moorhead went on to ask the Defendant whether the Defendant had
any marijuana and the Defendant stated he had a jomt Sgt Moorhead
asked the Defendant to retrieve the joint and after some delay the Defend
ant retrieved a backpack from the cabin of the truck Sgt Moorhead di
rected the Defendant to open the backpack and place its contents on the
fender 0f the truck A sum of U S currency and marijuana contained
within a zip 10c bag that was wrapped in a shopping bag were among the
items removed from the backpack
‘11 5 The Defendant testified that Sgt Moorhead flagged him down and
instructed him to pull the truck to the side of the road When Defendant
brought the truck to a step Sgt Moorhead approached and asked the dc
fendant to produce his license registration and insurance which the De
fendant provided Charles Moorhead then instructed the Defendant to
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operate some of the truck s utility instruments including the wipers, lights
indicators and horn After Defendant shut off the truck he noticed that
Sgt Moorhead whispered something to Charles Moorhead Subsequently
Sgt Moorhead returned to the truck and ordered the Defendant out of the
truck to which the Defendant protested Sgt Moorhead then asked if he
had any drugs or anything in the truck to which the Defendant answered
No Sgt Moorhead then instructed the Defendant to come out of the
truck and bring anything that he has in the truck The Defendant came
out of the truck and brought his backpack Sgt Moorhead instructed the
Defendant to place the items from the backpack on the fender of the truck
and empty his pockets The Defendant complied Sgt Moorhead then
frisked the Defendant after asking the Defendant whether he had moved
all items from his pockets
9! 6 The events which transpired subsequent to the seizure and search
of the backpack appear to be less in dispute Sgt Moorhead instructed the
Defendant to call his employer The Defendant got on the phone and was
pacing back and forth Sgt Moorhead then instructed the Defendant ob
serve him count the money retrieved from the Defendant s backpack but
the Defendant appeared to ignore this directive as the Defendant contin
ued to pace back and forth The officers interpreting the Defendant 5 pac
mg as his preparation to flee the scene physically restrained the Defend
ant either to step him from pacing back and forth or to arrest him for the
possession of the marijuana that was found in his backpack In the
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process of physically restraining the Defendant Sgt Moorhead did some
thing that he called taking Mr Smith down to the ground and putting
his body weight on the Defendant until Sgt Samantha Smith could com
plete the process by putting handcuffs on the Defendant When this phys
ical altercation ended the officers saw a firearm on the ground
(11 7 The Defendant was charged with Possession of a Firearm and P05
session of a controlled substance with intent to distribute
THE LEGAL STANDARD
‘11 8 The Fourth Amendments prohibition against unreasonable
searches and seizures applies to administrative inspections of commercial
property as well private homes See U City of Seattle 387 U S 541
543(1967] However an exception to the probable cause and warrant re
quirement has been carved out for administrative inspection of closely
regulated industries Donovan v Dewey 452 U S 594 602 (1981) A
closely regulated industry is one that has a long history of government
oversight New York v Burger 482 U S 691 699 (1987) The owner of a
business has an expectation of privacy in commercial property Which so
ciety is prepared to consider reasonable Katz v United States 389
U S 347 361(1967) This expectation of privacy ex15ts not only with re
spect to traditional searches conducted for gathering criminal evidence but
also with respect to administrative inspections designed to enforce regula
tory statutes Marshall 0 Barlow s Inc 436 U S 307 312 313(1978) Reg
ulatory schemes are allowed an exemption from the probable cause and
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warrant requirement in the inspection of commercial property on the
premise that the owner of commercial property has a lesser expectation of
privacy than a homeowner and the government has a heightened interest
in regulating the property Burger at 699 The exemption from the need for
probable cause and the warrant which is accorded to searches made for
the purpose of administrative regulation is not accorded to searches that
are not made for those purposes Whren v United States 517 U S 806
811 812 (1996] (citing New York 0 Burger 482 U S 691 702(1987] and
Colorado v Bertme 479 U S 367 371(1987)]
ANALYSIS
A Administrative Stop and Inspection of the Truck
‘11 9 When law enforcement officers Alexander Moorhead and Samantha
Smith and motor carrier safety coordinator Charles Moorhead ordered the
Defendant Kareem Smith to bring the vehicle he was operating to a stop
for a roadside inspection the actions of the officers constituted a seizure
for purposes of the Fourth Amendment See Florida 0 Roger 460 U S 491
502 (1983] (finding that a person has been seized when circumstances
surrounding his encounter with law enforcement authority would lead a
reasonable person to believe that he is not free to leave) The people argue
that this seizure was lawful because pursuant to 20 V I C §§ 900 902 and
49 CFR §§ 300 399 the officers are authorized to stop and inspect com
mercial vehicles at any time But the fact that the Virgin Islands
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People of the V] v Kareem Smith Cite as 2021 v1 Super 105v
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legislature has enacted statutory provisions Which permit warrantless ad
ministrative inspection of commercial property does not mean that officers
have unbridled discretion to seize and inspect commercial property at any
time The U S Supreme Court has found that that the owner of commer
cial property has a reasonable expectation of privacy even though there is
a lesser expectation of privacy in commercial property than in the home
Donovan v Dewey 452 U S 594 598 99(1981) See U City of Seattle at
543 Accordingly regulatory schemes must be tailored in observance of
the Fourth Amendments protection of that right Burger at 702 703 In
Burger the Court went to great lengths to show that not all commercial
activity subject to governmental regulation qualify as closely regulated in
dustries The search in Burger involved the search and inspection of an
automobile Junkyard The Court stated that although the automobile in
dustry had been regulated for 140 years it did not qualify as a closely reg
ulated industry However the Court stated that this was not so much
about automobiles but about junk and the junk business qualified as a
closely regulated industly because of its long history of govemment over
sight Although the right to privacy in commercial property is most atten
uated in closely regulated industries where there is the least expectation
of privacy a statutes inspection program and regulatory scheme must
provide adequate standards and safeguards to satisfy constitutional re
quirements Id Even in the context of a closely regulated business war
rantless inspection will be deemed to be reasonable only so long as three
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criteria are met First there must be a "substantial government interest
that informs the regulatory scheme pursuant to which the inspection is
made Second the warrantiess inspections must be necessary to further
the regulatory scheme Third the statute s 1nspection program in terms
of the certainty and regularity of 1ts application must provide a constitu
tionally adequate substitute for a warrant Donovan v Dewey 452 U S at
600 602 To satisfy this standard the regulatory scheme must advise the
owner of commercial property that the inspection or search is being made
pursuant to the law Marshall v Barlow s Inc 436 U S at 323 The stat
ute must be sufficiently comprehensive and defined that the owner of com
mercial property cannot help but to be aware that his property Will be sub
Ject to periodic inspection undertaken for a specific purpose Donovan v
Dewey at 600 The regulatory scheme must be carefully lunited in time
place and scope so as to limit the discretion of inspectors United States 1)
Bstell 406 U S 311 315 (1972)
(ll 10 Title 20 V I C § 901 identifies the personnel who are authorized to
perform inspections of commercial motor vehicles drivers and motor car
tiers for compliance with safety regulations However there is nothing in
this provision which state how these inspections are to be performed Sec
tion 900 adopted selected parts of the Code of Federal Regulations and
explicitly states that vehicles below the weight rating of 26 001 pounds are
exempt from regulation except for vehicles carrying hazardous materials
or vehicles used to transport 16 or more persons including the driver The
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People did not identify any specific provisions of the statute or the selected
provisions of the Code of Federal Regulations to support their position that
the officers are authorized to stop any commercial vehicle at any time
Neither did the People present evidence of the regulatory system by which
the administrative inspections of commerc1al vehicles in the Virgin Islands
are to be performed Where Congress has authorized inspection but made
no rules governing the procedures that inspectors must follow
the Fourth Amendment and its various restrictive rules apply Colonnade
Corp v United States 397 U S 72 77 {1970] In such cases a warrant
may be necessary to protect the owner from the 'unbridled discretion of
executive and administrative officers' Marshall 0 Barlows Inc at 323
Warrantless inspections of commercial property may be constitutionally
objectionable if their occurrence is so random infrequent or unpredicta
ble that the owner for all practical purposes has no real expectation that
his property will from time to time be inspected by government offi
cials Id The established law does not support the People 3 position which
tend to suggest that the officers can arbitrarily stop and inspect commer
cial vehicles simply because they are commercial vehicles Moreover the
People did not present any evidence of the rules of a regulatory scheme by
which this Court could determine whether the stop of the truck was con
stitutionally permiss1ble The People did not meet their burden to establish
that the stop of the truck was reasonable
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B Seizure and Search of the Defendant s Person and Personal Ef
fects
‘11 11 The criminal charges in this case do not arise out of evidence of
criminal conduct discovered incidental to a regulatory inspection of com
mercial property but out of a seizure and search of the Defendant 3 person
and personal effects Even though a statutory scheme provides for a search
of a closely regulated industry without probable cause or warrant require
ment this permission to search does automatically extend to people en
gaged in the industry Shoemaker v Handel 795 F 2d 1136 1142 (3 d Cir
1986) It follows that even if the stop of the Mack truck in this case were
constitutionally permissible under an administrative regulatory scheme
the officers would need an independent basis of probable cause to arrest
and search the Defendant The People contend that Sgt Moorhead had
probable cause to inquire into the possession of marijuana First because
he had authority to stop the truck for an administrative inspection and
the provisions of the Code of Federal Regulation Which authorizes the in
spection prohibit the possession of marijuana in the cabin of a commercial
vehicle Second the People contend that Sgt Moorhead had probable
cause to search the truck when he detected the odor of marijuana as he
approached the truck at the driver s side door Neither of these contentions
support a lawful basis of probable cause
‘11 12 An administrative inspection is the inspection of business premises
or commercial property conducted by authorities responsible for enforcing
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a pervasive regulatory scheme Donovan u Dewey at 599 (Dewey in
volved the unannounced inspection of a mine for compliance with health
and safety standards) A statute authorizing a search whlch can uncover
no admimstrative violations is not sufficiently limited in scope to avoid the
warrant requirement Burger at 723 An inventory search must not be a
ruse for a general rummaging in order to discover incriminatlng evidence
Floridav Wells 495 U S 1 4 (1990] The constitutional valldity of a war
rantless inspection of commercial property would only be upheld if the
inspection does not appear to be a pretext for obtaining evidence of the
violation of penal laws Burger at 716 717 It would appear that in order
to satisfy constitutional sufficiency statutory regulatory schemes must be
confined to the administrative purpose that they are meant to fulfill The
government may not use an administrative inspection scheme to search
for criminal violations Michigan v Clifford 464 U S 287 292 [1984) 'flfle
20 V I C § 901 authorizes agents of the government to inspect commercial
vehicles for compliance with safety regulation It is evident that if the reg
ulatory scheme under this provision gave Sgt Moorhead or any other agent
of the government the authority to inquire into or search for evidence of
criminal conduct as part of the regulatory scheme it would be offensive to
the Fourth Amendment Clearly no lawful basis of probable cause to
search for criminal violation may be lawfully crafted out of an administra
tive regulatory scheme
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‘I[ 13 Sgt Moorhead testified that When he detected the odor of marijuana
he had a conversation with the Defendant about the possession of mariju
ana inside a commercial vehicle at which point the Defendant told the of
ficer that the Defendant had a joint Sgt Moorhead further stated that he
requested that the Defendant retrieve the item that would be the joint
After some delay the Defendant eventually brought a backpack out of the
cabin of the truck Sgt Moorhead commanded the Defendant to remove
the items from the backpack and place them on the fender of the truck
The items included marijuana and a sum of money The marijuana was
inside a zip 10c bag that was wrapped inside a shopping bag
‘1! 14 While Sgt Moorhead testified that his training and experience ena
bles him to detect the smell of marijuana the People provided no evidence
that Sgt Moorhead has had any specialized form of training or natural
attributes which would enable him while standing outside the cab of a
truck to smell marijuana that was inside a zip 10c bag wrapped in a shop
ping bag placed inside a backpack that was in the cabin of the truck
Moreover it is quite interesting that Coordinator Charles Moorhead who
testified that he was first to approach the truck and was talking to the
Defendant through the open window of the cabin also testified that the
did not detect the smell of marijuana Granted the training experience
and natural attributes of coordinator Charles Moorhead and Sgt Moor
head may be significantly different However this Court as the trier of
fact does not find the testimony regarding the smell of marijuana to be
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