DIVISION OF ST THOMAS AND ST JOHN
PEOPLE OF THE VIRGIN ISLANDS
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CASE NO ST 20 CR 00320
Plaintiff,
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V
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JARIUS PENN
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Defendant
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__)
MEMORANDUM OPINION AND ORDER
2022 VI Super l7U
1]]
THIS MATTER is before the Court on
1
Defendant’s Motion to Suppress, filed June 1, 2021;
2
The People’s Opposition to the Defendant’s Motion to Suppress, filed August 23,
202] and
3
Defendant s Memorandum of Law in Support of Motion to Suppress filed September
30 2021
1R
Defendant Jarius Penn (“Penn”) seeks to suppress physical evidence and statements elicited
from him by police officers when he was arrested on October 27, 2020 Penn’s Motion to Suppress
came before the Court for hearing via Zoom on September 20, 202L_The People oithejlirgin
Islands (“the People") were represented by Assistant Attorney General H Timothy Perry Penn
appeared and was represented by Assistant Public Defender Mary Ann Matney Penn argues that
on October 27, 2020, he was unlawfully seized by police who took evidence and elicited statements
from him in violation of his Fourth, Fiflh, and Sixth Amendment rights The People argue that
Penn was not seized for purposes of the Fourth Amendment when he discarded a firearm that was
taken as evidence and that there was probable cause to arrest Penn For the reasons set forth herein,
the motion will be denied
I
BACKGROUND AND PROCEDURAL POSTURE
113
On November 10, 2020, the People filed a five count criminal information against Penn
charging (l) unauthorized possession of a firearm within one thousand feet of a school zone in
violation of 14 V I C § 2253“), (2) unauthorized possession ofa firearm with altered identification
2022 VI Super l7U
marks in violation of23 V l C § 481(b), (3) unauthorized possession ofa firearm in violation of
14 V I C
§ 2253(a), (4) unauthorized possession of ammunition in violation of 14 V I C
§
2256(a) and (5) loitering in violation of 14 V l C § I 191(b)(7) The matter came before the Court
for Arraignment on November 13, 2020, and Penn entered a plea of“not guilty ”
{[4
At the suppression hearing on September 20, 2021, the People called one witness.
Detective Gregory Bennerson of the Virgin Islands Police Department Defendant‘s counsel
examined the People 3 witness but did not call any witnesses The People entered two exhibits into
evidence 1) a photograph ofa sign reading
ABSOLUTELY NO LOITERING IN THIS AREA
and 2) a photograph of a firearm wrapped in black electrical tape that allegedly belongs to Penn
15
Penn argues that the police officer’s warrantless seizure of him on October 27, 2020, was
an unconstitutional seizure under the Fourth Amendment ofthe United States Constitution and the
Revised Organic Act of 1954 As such, Penn argues that the firearm that was taken as evidence
during this seizure should be suppressed as fruit of an unconstitutional seizure Penn also argues
that the officer’s questioning of him about whether he has a license to possess a firearm in the
Virgin Islands constituted a custodial interrogation that elicited statements from him without a
voluntary waiver of his rights against self incrimination and rights to counsel under the Fifth and
Sixth Amendments and the Revised Organic Act The People argue that Det Bennerson had
probable cause to arrest Penn for the criminal offenses ofloitering and use ofa controlled substance
in a public place The People also argue that Penn was not seized under the Fourth Amendment
when he discarded the firearm and thus had no longer reasonable expectation of privacy in the
discarded firearm The People concede, however, that Penn’s Miranda rights were implicated
when he was asked by officers ifhe had a license to possess a firearm in the Virgin Islands, so the
People will not be using that statement in their case in chief
ll
FACTS
{[6
On October 27, 2020, Detective Gregory Bennerson and five other Virgin Islands Police
officers' were conducting a crime initiative in Cruz Bay, St John targeting high crime areas While
conducting the initiative, the officers observed several males sitting on the steps ofa building near
Plot No 2A and 28, Cruz Bay, in the vicinity ofWoody’s Seafood Saloon and approximater 100
feet from the Sprauve School A ‘ N0 LOITERING” sign was posted on a pole next to the steps
t
where the males were sitting Det Bennerson observed one of the males, later identified as the
Defendant Jarias Penn, smoking what appeared to be a marijuana cigarette Det Bennerson could
see the glow at the end of the cigarette and could smell a strong odor of marijuana The officers
exited their marked police patrol vehicles to investigate while wearing their uniforms that
displayed the word ‘ POLICE
on the front and back of their bulletproof vests Det Bennerson
observed Penn look up at the officers as they approached, stand up and put on a red backpack, and
' The officers were identified in Det Bennerson's Probable Cause Fact Sheet as Sargent Kirk Fteulleteau, Sargent
2022 VI Super l7U
quickly walk away on Vester Gade Street Det Bennerson started to walk after Penn, and Penn
took offrunning
1W
Det Bennerson pursued Penn and shouted at him, “Police, stop running, get on the
ground!” Penn continued to run and kicked off his black slippers so he could run faster, and Det
Bennerson continued to pursue him Penn ran into a graveyard next to a beach, removed his
backpack from his back, and started to discard items from inside the bag into the water Det
Bennerson pointed his flashlight at Penn and saw a black object in his right hand that appeared to
be a small firearm Det Bennerson observed Penn toss the object into the water and drop the
backpack on the beach next to the water Penn then took off running on the beach out of Det
Bennerson’s sight
1|8
Det Bennerson continued to search for Penn on the beach and discovered him hiding
among some roots by a mangrove tree approximately ten feet fi'om where he threw the object into
the water Det Bennerson ordered Penn to come out from the trees and he compheeiT Det
Bennerson placed handcuffs on Penn and turned him over to Sgt Kirk Fieulleteau Det Bennerson
then went back to the area where Penn dropped his backpack and discarded items into the water
He went into the water and used his flashlight to illuminate the area and search the water He
discovered a small black firearm with electrical tape wrapped around the handle grip and secured
it for evidence
1]!)
Penn was transported to Jurgen Command Police Station in Cruz Bay, St John, and was
later transported to St Thomas for booking at the Alexander Farrelly Criminal Justice Center
Police Headquarters Police Officer Blsworth Jones of the Virgin Islands Police Department s
Fireanns Unit conducted a “Firearms Check ’ to determine ifPenn has a license to possess a firearm
in the Virgin Islands The absent entry in the report obtained from Officer Jones concluded that
Penn does not have a license to cany a firearm In an affidavit dated November 10, 2020, Det
Bennerson testified that Penn was asked ifhe had a license to possess a firearm in the territory of
the United States Virgin Islands, and he responded, “no ” Additionally, Forensic Detective Vernon
Carr was unable to determine the make and model of the firearm at the time because it appeared
to be covered in black spray paint The firearm contained seven live rounds of ammunition Penn
was advised ofhis Miranda rights and remanded to the Alexander Farrelly Criminal Justice Center
Bureau of Corrections pending his Advice of Rights hearing Penn appeared for his Advice of
Rights Hearing on October 28, 2020, and he was released from custogy upon the execution of an
Appearance Bond
2022 VI Super 17U
Ill
LEGAL STANDARD
A
Motion to suppress physical evidence obtained through warrantless seizure
of the defendant
1|10
The Fourth Amendment of the United States Constitution and the Revised Organic Act of
1954 protect the people ofthe Virgin Islands from unreasonable searches and seizures 2 The Fourth
Amendment protection against unreasonable seizures has been long understood to include seizures
of the person 3 A seizure of the person occurs when a reasonable person, in view of all the
circumstances surrounding the incident, would not feel free to leave 4 The Supreme Court
approved the exclusion ofevidence as a sanction for violations ofthe Fourth Amendment in Weeks
v Untted States,5 and the exclusionary rule was extended to the States in Mapp v Ohm ° Under
the exclusionary rule, the Court must suppress evidence found to be a product of a Fourth
Amendment violation 7 However, while the Fourth Amendment ensures an individual’s rights to
be secure from unreasonable search and seizures, it does not require_a police officer to ignore a
possible cnme 3 The Fourth Amendment allows officers to conduct limited searches and seizures
upon the reasonable suspicion of criminal activity 9 An individual’s erratic behavior or obvious
attempts to evade officers can support an officer’s reasonable suspicion to make such investigatory
stops '0
2 U 5 Coast amend IV (stating, in relevant part
‘the right of the people to be secure
against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause
describing the
place to be searched. and the persons 01’ things to be seized"), see also V I C Rev Org Act of 1954 § 3 (“The right
to be secure against unreasonable searches and seizures shall not be violated '), see also People ofthe Vugm Islands
v Amzstrong 64 V 1 528 530 n 1 (V I 2016) (stating that the Fourth Amendment of the United States Constitution
applies to the Vitgin Islands)
’ Califomta v Hodari D 499 U S 621 624 (1991) (citing Henry;
United States 361 U S 98 100 (1959)) see
also Blyden t People ofthe Virgin Islands 53 V1 637 647 (V I 2010) (quoting Brown \ Texas 443 U S 47 50
(1979)) (finding that “the Fourth Amendment ‘applies to all seizures of the person. including seizures that involve
only a briefdetention short of traditional arrest'")
‘ See Hodari D , 499 U S at 628 see also United States t Drayton 536 U S 194 201 (2002) (finding that
if a
reasonable person would feel free to terminate the encounter, then he or she has not been seized ’), see also Blyden,
53 V l at 647 (determining that ‘ whenever a police officer accosts an individual and restrains his freedom to walk
away, he has seized that person
)
5 232 U S 383(1914)
° 367 U S 643 (1961)
7 See (d at 648
‘ See United States v Chabot 19 V 1 28, 35 (D V I 1982) (finding that the Fourth Amendment does not requite
police officers “simply to shrug their shoulders and allow a crime to occur
")
9See Blyden v People ofthe Virgin Islands 53 V I 637 647-48 (V1 2010) (citing Terry v Ohm 392 U S
1 30
(1968)) (allowing a limited search and seizure without a warmnt or probable cause “where a police officer observes
unusual conduct which leads him to reasonably conclude in light ofhis experience that criminal activity may be
afoot
”)
'° See United States v Brignom Ponce. 422 U S 873, 885 (1975); see also 111mm: x Wardlaw, 528 U S 119. 124
2022 VI Super 17U
1111
An arrest is considered ‘ the quintessential seizure ofthe person” for purposes ofthe Fourth
Amendment ” However, for an arrest to constitute a seizure, there must be either the application
ofphysical force upon the defendant or, where that is absent, a submission to an officer’s assertion
of authority to restrain the subject’s liberty ‘2 A police pursuit of a fleeing suspect is not an arrest
and not a seizure under the Fourth Amendment, and evidence a suspect discards during such
pursuit is therefore not subject to exclusion at trial as the fruit ofa Fourth Amendment seizure '3
1[12
On a motion to suppress, the burden of proof is ordinarily on the defendant who seeks to
suppress evidence “ However, once it has been established that a seam]; or seizure wasconducted
without a wmant, the burden shifts to the government to show that the search or seizure was
reasonable '5 Warrantiess searches and seizures are “per se unreasonable absent a few ‘well
delineated exceptions ”"6 The test for “reasonableness‘ is an objective inquiry analyzed by
examining the totality of the circumstances surrounding the search or seizure '7 Virgin Islands
Courts have determined that the scent ofmarijuana alone “may be sufficient to establish reasonable
suspicion or even ‘probable cause’ to conduct further investigation into possible criminal acts or
evidence of contraband” without a warrant
'3 If a search or seizure is found to be unreasonable,
then evidence obtained through such searches and seizures is excluded in criminal prosecutions '9
[V
ANALYSIS
A The physical evidence that Penn seeks to suppress was not taken in violation
of his Fourth Amendment rights
1
Penn was not seized for purposes of the Fourth Amendment when he
discarded the firearm
1]]3
Penn argues that on October 27, 2020, when he walked away from the area where police
were approaching and police officers chased after him, the officers engaged in a warrantiess chase
and seizure ofhim As such, Penn argues that the evidence taken fiomTHEchase and seizure should
" See Hodari D , 499 U S at 624
'2 See id at 626
'3 See «I at 629 (concluding that cocaine that a defendant abandoned while he was running from the police was not
the fruit of a seizure because the defendant was not seized at the time be discarded the cocaine)
" People ofthe Vugm Island“ Prentice, 64 V1 79, 89 (V 1 Super Ct 2016) (citing United States v Johnson 63
F 3d 242 245 3d Cir 1995))
:3 Id
'6 People ofthe V030: Islandst Pemberton 71 VI ,259 (VI Super Ct 2019) (citing Brownev People ofthe
Virgm Island: 56 V1 207 217 (V 1 2012)) (quoting Katzi United States 389 U S 347 357 (1967))
'7 Prennce, 64 V l at 89 (citing United States v Montoya de Hernandez 473 U S
531 537 (1985))
'3 People ofthe Vzrgm Islands 1 Looby 68 V I 683 698 (V I 2018) (citing United States v Ramos 443 F 3d 304
308 (3d Cit“ 2006)) (concluding that although decriminaiized, possession of marijuana remains unlawful in the
Virgin Islands and is considered contraband) see also People ofthe Virgin Islands v Cannergeuer, 65 V I 114, 128
(V 1 Super Ct 2016) (determining that the decriminalization ofsmall amounts of marijuana does not prohibit
officers from stopping a vehicle based on the detection of the smell of marijuana)
2022 VI Super 170
be excluded as fruit ofan unreasonable seizure The evidence Penn seeks to exclude is the firearm
he discarded in the water while fleeing from the police At issue is whether Penn had been seized
for purposes of the Fourth Amendment when he discarded the fireat‘rh‘The Court fifis‘flfit Penn
was not seized at the time he discarded the firearm in the water and therefore the firearm is not
fruit ofan unconstitutional seizure that warrants exclusion
{[14
This case is similar to Calrjbrma v Hodarr D 2° which established that a Fourth
Amendment seizure requires an application of physical force or a submission to an officer’s
assertion of authority 2' Like the defendant in Hodarr D , Penn seeks to suppress evidence that he
discarded while he was fleeing from a pursuing police officer As the Supreme Court made clear
in Hodart D , a suspect fleeing from police pursuit has not been seized under the Fourth
Amendment because there has been no application of physical force and no submission to an
officer’s authority 22 At the time that Penn discarded the firearm, he had not yet been arrested, he
had not been physically touched by any officers nor had he submitted to any officer’s show of
authority to restrain his liberty He was therefore not seized under the Founh Amendment at the
time that be discarded the firearm Because any evidence a suspect discards while fleeing a police
officer is not subject to exclusion at trial as fruit ofa Fourth Amendment seizure, the firearm Penn
seeks to suppress is not subject to exclusion as fruit ofan unconstitutional seizure 23
2
Police officers had probable cause to arrest Penn
1115
Although the Court finds that Penn was not seized for purposes.of the FounhAmendment
at the time he discarded the evidence he seeks to suppress, the Court also finds that the People
have satisfied their burden of proving that probable cause existed to arrest Penn, and the
warrantiess arrest of Penn was therefore reasonable
Through the testimony of Detective
Bennerson, the People established that the officers who approached and eventually chased and
arrested Penn had probable cause to search for evidence of contraband of criminal activity based
on the smell of marijuana and the officer’s observation of Penn smoking what appeared to be a
marijuana cigarette As courts in the Virgin Islands have confirmed, the smell ofmarijuana alone
can be enough for an officer to establish probable cause to further investigate for evidence of
criminal activity 2‘ Det Bennerson both smelled marijuana and observed Penn smoking what
appeared to be a marijuana cigarette, which is enough to establish the probable cause needed to
effectuate an arrest With this testimony, the People have established that probable cause existed
to further investigate and arrest Penn
2"499 us 621 (199i)
1' See Hodarr'D 499U S at 626
12 See id
3’ See id
°‘ People ofthe Virgin Islands v Looby 68 V I 683 698 (V I 2018) (citing United States v Ramos 443 F 3d 304
308 (3d Cir 2006)) (concluding that although decriminalized, possession ofmarijuana remains unlawful in the
Virgin Islands and is considered contraband) see also People ofthe Virgin Islands v Cannergerter, 65 V I 114, 128
(V I Super Ct 2016) (determining that the decriminalization of small amounts of marijuana does normal—
officers from stopping a vehicle based on the detection of the smell of marijuana)
2022 VI Super l7U
1[16
Additionally the People have demonstrated that the officers who approached, chased, and
arrested Penn had reasonable suspicion to investigate him for criminal activity As Det Bennerson
testified, when he and other officers approached Penn, Penn stood mad quicklyTalkfi‘aWay
When officers pursued him, he began to run and continued to flee when they told him to stop The
Supreme Court has indicated that flight upon sighting a police officer is not per se indicative that
criminal activity is afoot, but the Court has recognized that nervous and erratic behavior is a
pertinent factor in determining whether there is reasonable suspicion to conduct an investigatory
stop 25 Unprovoked flight from a crime scene may be considered a factor in deciding whether
reasonable suspicion exists 2‘ Here, Penn’s flight fiom the officers provided them With reasonable
suspicion to suspect criminal activity, and thus their actions were reasonable under the Fourth
Amendment
B
Penn’s Miranda rights under the Fifth and Sixth Amendments were
implicated by his statement to officers regarding whether he had a license to
possess a firearm in the Virgin Islands
1]]?
Penn seeks to suppress his statement to police officers regarding whether he was licensed
to possess a firearm Penn argues that the police officer’s questioning that elicited this statement
constituted a custodial interrogation without a voluntary waiver by Penn of his rights against self
incrimination and his right to counsel under the Fifth and Sixth Amendments The People concede
that the questioning was custodial in nature which would have required Penn be read his Miranda
rights Since Penn was not Mirandi ed, the People will not seek to introduce his statemenLin their
case in chief Therefore, the Court does not need to determine whether Penn’s statement should be
suppressed
V
CONCLUSION
1116
Although the Fourth Amendment ensures an individual’s rights to be secure from
unreasonable search and seizures, it does not require a police officer to ignore a possible crime 27
The Court finds that Penn was not seized for purposes ofthe Fourth Amendment when he discarded
the physical evidence he seeks to suppress He had not been physically seized nor had he submitted
to an officer’s show of authority when he discarded a firearm while fleeing from the police
Additionally, the Court finds that the People have satisfied their burden of proving that the
warrantless arrest of Penn was reasonable under the Fourth Amendment because the police had
probable cause to arrest Penn for smoking matijuana The police also had reasonable suspicion to
investigate Penn for criminal activity based on his behavior The evidence that Penn seeks to
suppress is therefore not the fruit of an unconstitutional seizure and will not be suppressed
However, the People concede that Penn’s Miranda rights were implicated by his statement to
1’ See United States v Brzgnom' Ponce 422 U S 873 885 (1975)
2‘ SeeIlImow v Wardlow 528 U S 119 124 (2000)
2022 VI Super 17U
officers that he did not have a license to possess a firearm in the Virgin Islands The People have
stipulated that they will not be using this statement against Penn in their case in chief, so the Court
therefore does not need to rule on the issue of suppressing Penn’s statements
1117
Accordingly, it is hereby
ORDERED that Defendant 8 Motion to Suppress is DENIED, and it is further
ORDERED that a copy of this Memorandum Opi
on and Order shall be directed to
counsel of record
DATED£2%&2022
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, H “o
e of the Superior Court of the Virgin Islands
I
ATTEST
TAMARA CHARLES
Clerk ofthe Court
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4/ LATOY
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Court Clerk Supervisor :52 / /fl’%