DISTRICT COURT OF THE VIRGIN ISLANDS 
DIVISION OF ST. THOMAS AND ST. JOHN 
UNITED STATES OF AMERICA, 
Plaintiff, 
v. 
DAVIDSON L. ALFRED, 
Defendant. 
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) 
 
) 
2014-cr-32 
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ATTORNEYS: 
 
Ronald Sharpe, United States Attorney 
Kim L. Chisholm, AUSA 
United States Attorney’s Office 
St. Thomas, V.I. 
 
For the plaintiff, 
 
George H. Hodge, Jr., Esq. 
St. Thomas, V.I. 
 
For the defendant Davidson L. Alfred. 
 
 
ORDER 
 
Before the Court are the motions of defendant Davidson 
Alfred (“Alfred”) to suppress all evidence obtained from Alfred 
after he was detained, including a statement made to the police 
and physical evidence. 
I. 
FACTUAL AND PROCEDURAL HISTORY 
Sylvester Samuel and his wife (the “Samuels”) filed a 
complaint against Alfred with the Virgin Islands Police 
Department (“VIPD”). The Samuels alleged that Alfred was forging 
checks against their accounts.  The officer that took the 
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complaint relayed that information to Detective Derrick 
Bougouneau.  
Thereafter, on Tuesday, April 15, 2014, in the morning, 
Alfred entered Banco Popular de Puerto Rico in Red Hook, St. 
Thomas, U.S. Virgin Islands (“BPPR Red Hook”).  While in BPPR 
Red Hook, Alfred attempted to cash a check.  The check was for 
$3,500 to be drawn against the account of Sylvester Samuel and 
paid to Alfred. The BPPR Red Hook bank supervisor took Alfred’s 
driver’s license to cash the check.  The bank supervisor thought 
there were irregularities with the signature on the check and 
called Sylvester Samuel to inquire about the transaction. Samuel 
asked the bank supervisor to call the police. The bank’s 
supervisor did so. After waiting for approximately 25 minutes, 
Alfred left the bank, leaving his driver’s license and the check 
behind.   
Thereafter, Alfred drove to the Hibiscus Branch of Banco 
Popular (“BPPR Hibiscus”). Alfred alleges he was there to 
activate a credit card. The government claims Alfred tried to 
cash the same check Alfred had attempted to cash in Red Hook at 
BPPR Hibiscus. The branch manager of BPPR Hibiscus testified 
that Alfred attempted to cash a check against the Samuels’ 
account. BPPR Hibiscus called the police.  
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Detective Bougouneau, of the Virgin Islands Police 
Department, received a dispatch that there was a forgery 
occurring at BPPR Hibiscus and the dispatcher mentioned Alfred 
by name. Bougouneau recognized Alfred’s name from his 
conversation with the officer who had taken the Samuels’ 
complaint previously. 
Alfred waited thirty minutes at BPPR Hibiscus.  After the 
thirty minutes, Bougouneau entered BPPR Hibiscus. The teller 
signaled Bougouneau towards Alfred.  Bougouneau then went to 
Alfred, and stated he would like to speak to Alfred. Bougouneau 
explained to Alfred why Bougouneau was there, and asked Alfred 
to come with him back to Bougouneau’s office. 
After speaking with Alfred, Bougouneau spoke with the 
branch manager at BPPR Hibiscus.  The branch manager informed 
Bougouneau that Alfred had come to the bank in order to cash a 
check.  The branch manager stated that Alfred had attempted to 
cash the check in Red Hook, but it took so long that Alfred had 
come to BPPR Hibiscus.  The branch manager told Bougouneau that 
she knew the name of Sylvester Samuel, because BPPR Hibiscus had 
recently closed Samuel’s accounts for him. 
Bougouneau handcuffed Alfred and took Alfred to 
Bougouneau’s office in Barbel Plaza, St. Thomas, Virgin Islands. 
There, Alfred was interviewed by Detective Jose Allen. That 
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interview was videotaped. Before the interview began, Alfred was 
given a written warning as to his rights (the “advice of rights 
form”), and the advice of rights form was read to Alfred. The 
advice of rights form consisted of numbered sentences which 
informs defendants of their right to remain silent, their right 
to counsel, and the ability of anything the defendant says to be 
used against him or her in a court of law. The advice of rights 
form also includes a waiver the defendant may sign at the bottom 
of the form. After reading each portion of the warnings, Alfred 
was asked if he understood them. Alfred indicated that he did. 
Alfred then signed the advice of rights form.   
Alfred did not sign the waiver at the bottom of the form.  
The waiver portion contains the handwritten notation, “Willing 
to speak and answer questions accordingly.”  On the tape of the 
interrogation, Allen can be heard explaining to Alfred that he 
is going to write “willing to speak and answer questions 
accordingly,” on the advice of rights form. Alfred agrees to it.   
During the warnings, Alfred asked he would get a lawyer 
immediately, in the event he wanted a lawyer.  Allen informed 
Alfred that an attorney could not be appointed until the next 
day, when Alfred was before the Magistrate. 
Alfred admitted that he attempted to cash a check for 
$3,500 against an account belonging to Sylvester Samuel, and 
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Alfred acknowledged that the driver’s license left at the bank 
belonged to him.  
Alfred asked to use the restroom. He was permitted to do 
so, but Allen instructed Alfred to empty everything from his 
pockets before going to the restroom.  Alfred removed two debit 
cards from his pocket.  Allen made copies of debit cards before 
returning them to Alfred.   
The next day, Alfred went before the Magistrate Judge for a 
probable cause hearing. 
Sometime thereafter, the government obtained copies of 
cancelled checks, deposit slips, checking account transactions, 
debit statements, and various bank statements belonging to 
Alfred without Alfred’s consent or a warrant. 
Alfred seeks to have the bank documents, the copies of his 
personal effects, and his statement suppressed.  He also asks 
that this Court exclude the video of his interrogation under 
rule 403. 
II. 
DISCUSSION 
A. Fourth Amendment 
“The Fourth Amendment to the Constitution provides: ‘The 
right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, 
shall not be violated, and no Warrants shall issue, but upon 
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probable cause . . . . The touchstone of the Fourth Amendment is 
reasonableness.’ ” United States v. Price, 558 F.3d 270, 277 (3d 
Cir. 2009) (quoting Florida v. Jimeno, 500 U.S. 248, 250 
(1991)). “Therefore, the Fourth Amendment does not prohibit all 
searches--only those that are unreasonable.” Price at 277. 
 
“Searches conducted outside the judicial process, without 
prior approval by a judge or magistrate, are per se unreasonable 
under the Fourth Amendment subject only to a few specifically 
established exceptions.” Katz v. United States, 389 U.S. 347, 
357 (1967) “Such exceptions are based on the Supreme Court’s 
determination that a particular search is reasonable, that is, 
that the government’s legitimate interests in the search 
outweigh the individual’s legitimate expectation of privacy in 
the object of the search.” United States v. Salmon, 944 F.2d 
1106, 1120 (3d Cir. 1991). 
 
The Fourth Amendment applies with equal force regardless of 
whether a search is conducted by federal, state, or territorial 
officers. The Supreme Court has held that: 
[E]vidence obtained by state officers during 
a search which, if conducted by federal 
officers, 
would 
have 
violated 
the 
defendant’s 
immunity 
from 
unreasonable 
searches 
and 
seizures 
under 
the 
Fourth 
Amendment is inadmissible . . . . In 
determining 
whether 
there 
has 
been 
an 
unreasonable search and seizure by state 
officers, a federal court must make an 
independent inquiry, whether or not there 
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has been such an inquiry by a state court, 
and irrespective of how any such inquiry may 
have turned out. 
 
Elkins v. United States, 364 U.S. 206, 223–24 (1960); See also 
United States v. Striver, 9 F.3d 298, 300 (3d Cir. 1993). 
 
The prosecution bears the ultimate burden to prove, by a 
preponderance of the evidence, that the challenged evidence is 
admissible. United States v. Matlock, 415 U.S. 164, 177 (1974); 
United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995). 
B. Fifth Amendment 
To safeguard an individual's Fifth Amendment privilege against 
self-incrimination, the Supreme Court held that the government 
may not introduce statements made by an individual, who is 
subject to “custodial interrogation,” unless he first has been 
given his Miranda warnings. The Court defined “custodial 
interrogation” as “questioning initiated by law enforcement 
officers after a person has been taken into custody or otherwise 
deprived of his freedom of action in any significant way.” 
Miranda, 384 U.S. at 445.  
Since Miranda, the United States Court of Appeals for the 
Third Circuit has set forth two factors the courts must consider 
in determining whether there has been “custodial interrogation.” 
First, a court must “determine whether the suspect was in 
‘custody.’... If the suspect was in ‘custody,’ the court then 
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must decide whether the police interrogated him.” United States 
v. Mesa, 638 F.2d 582, 585 (3d Cir. 1980) (citing Orozco v. 
Texas, 394 U.S. 324(1969) and Rhode Island v. Innis, 446 U.S. 
291 (1980)). Interrogation has been defined as any “express 
questioning or its functional equivalent.” Innis, 446 U.S. at 
300–301. This definition includes “any words or actions on the 
part of the police (other than those normally attendant to 
arrest and custody) that the police should know are reasonably 
likely to elicit an incriminating response from the suspect.” 
Id. 
III. ANALYSIS 
A. Warrantless Arrest 
 
“When 
the 
constitutional 
validity 
of 
an 
arrest 
is 
challenged, it is the function of a court to determine whether 
the facts available to the officers at the moment of the arrest 
would ‘warrant a man of reasonable caution in the belief’ that 
an offense has been committed.” Beck v. State of Ohio, 379 U.S. 
89, 96 (1964). “States must provide a fair and reliable 
determination 
of 
probable 
cause 
as 
a 
condition 
for 
any 
significant 
pretrial 
restraint 
of 
liberty, 
and 
this 
determination must be made by a judicial officer either before 
or promptly after arrest.” Cnty. of Riverside v. McLaughlin, 500 
U.S. 44, 52 (1991)(internal quotation omitted).  Where someone 
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is arrested without a warrant, generally that individual should 
receive a judicial determination of probable cause within 48 
hours of the arrest. See id. at 56. 
“[W]hether an arrest has occurred depends upon an 
objective, not subjective, evaluation of what a person innocent 
of a crime would have thought of the situation, given all of the 
factors involved. When an arrest has occurred depends in each 
case upon an evaluation of all the surrounding circumstances. 
Primary among these is a determination of whether or not the 
defendant was free to choose between terminating or continuing 
the encounter with the law enforcement officers.” U. S. v. 
Johnson, 626 F.2d 753, 755 (9th Cir. 1980) aff'd, 457 U.S. 537 
(1982). Alfred was put into handcuffs at BPPR Hibiscus, and 
transported to a police station. At that point, an objective 
citizen who was in those circumstances would likely not feel 
free to leave, or as though he could terminate the encounter.  
As such, Alfred was then under arrest. 
Both parties concede there was no warrant for Alfred’s 
arrest when he was detained at BPPR Hibiscus.  As such, the 
Court must determine whether, at the time Alfred was arrested at 
BPPR Hibiscus, “the facts available to the officers at the 
moment of the arrest would warrant a man of reasonable caution 
in the belief that an offense has been committed.” Beck, 379 
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U.S. at 96.  At the time of Alfred’s arrest, the arresting 
officer had the following pieces of information: (1) the Samuels 
had filed a complaint with VIPD alleging that Alfred had forged 
checks against their accounts; (2) Alfred had attempted to cash 
a check at two different BPPR branches; (3) the BPPR Hibiscus 
branch manager recognized the Samuels’ name on the check Alfred 
tried to cash, because the Samuels had recently closed their 
accounts; (4) there had been a dispatch specifically naming 
Alfred, and stating that a check forgery was ongoing at BPPR 
Hibiscus. 
Considering all those facts together, the Court finds that 
they “would warrant a man of reasonable caution in the belief 
that an offense has been committed.” Beck, 379 U.S. at 96.  As 
such, the arrest was lawful when it was made. 
Alfred was arrested in the early afternoon. He was 
presented to the Magistrate the next morning.  Bouggoneau 
testified that the reason for the brief delay was the 
Magistrate’s schedule.  The Magistrate, he stated, only does 
probable hearings beginning at 9:00 AM unless the police had 
made prior arrangements with the Magistrate. Given the short 
period of the delay, and the logistical reason behind it, the 
Court does not believe it was unreasonable. 
 
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B. Interrogation 
 
The 
Supreme 
Court 
stated 
in 
Miranda, 
that 
authorities are obligated to advise a person 
taken into custody of “the right to consult with 
a lawyer and to have the lawyer with him during 
interrogation.” Miranda, 384 U.S. at 471. Yet, 
in the years since Miranda, the Supreme Court 
has consistently refrained from constructing a 
particular 
formula 
for 
the 
warning. 
In Duckworth, the Court held the following. 
 
Reviewing courts are not required to examine 
Miranda warnings as if construing a will or 
defining 
the terms 
of 
an 
easement. 
The 
inquiry 
is 
simply 
whether 
the 
warnings 
reasonably 
“conve[y] 
to 
[a 
suspect] 
his 
rights as required by Miranda.”  
 
United States v. Warren, 642 F.3d 182, 184 (3d Cir. 2011). It is 
also acceptable, when the police are advising defendants of 
their rights, for police to answer questions about how the 
rights will operate in their jurisdiction.  For example, a 
police officer may explain the process for appointment of 
counsel in their jurisdiction. See Duckworth v. Eagan, 492 U.S. 
195, 203-04 (1989)(stating that police officer explanation 
during an advice of rights, in response to a suspect’s question 
about appointment of counsel, about the timeline for appointment 
of counsel was permissible). 
 
The Court carefully reviewed the tape of the interrogation, 
and the Miranda warnings given therein, in its entirety.  In 
doing so, the Court was struck by how thorough the warnings 
were.  The warnings were read to Alfred, Alfred was permitted to 
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ask questions about them, and Alfred was given a document 
containing the warnings.  Alfred was informed that he had a 
right to counsel being present while he was interrogated, and 
that he had a right to remain silent. Allen’s explanations were 
as close to a textbook example of a valid Miranda warning as 
could be expected. 
Once a suspect has been advised of his rights, the suspect 
must “unambiguously” invoke his right to remain silent or his 
right to counsel in order for those protections to attach. See 
Berghuis v. Thompkins, 560 U.S. 370, 381 (2010)(holding that a 
suspect had to unambiguously invoke his right to silence in 
order for Miranda to require law enforcement cease questioning); 
Davis v. United States, 512 U.S. 452, 461 (1994)(requiring a 
suspect to unambiguously invoke his right to counsel). Simply 
remaining silent is insufficient to invoke the right to remain 
silent. Berghuis, 560 U.S. at 380-82. Ambiguous or equivocal 
statements are also insufficient to invoke one’s Miranda rights. 
Id. at 381. 
Alfred 
argues 
that 
through 
his 
question 
about 
the 
availability of counsel, he invoked his Miranda rights.  He also 
argues that his refusal to answer certain questions invoked his 
Miranda rights.  However, neither of these actions is enough to 
“unambiguously” invoke Alfred’s rights.  A reasonable law 
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enforcement officer would not necessarily have understood a 
question about the timing involved in the appointment of counsel 
as a demand for an attorney. See, e.g., Davis, 512 U.S. at 455, 
(the statement “[m]aybe I should talk to a lawyer” was not an 
unambiguous request for counsel); United States v. Shabaz, 579 
F.3d 720, 819 (7th Cir. 2012)(the question “am I going to be 
able to get an attorney” was not an unambiguous  request for 
counsel). Silence or refusal to answer certain questions does 
not constitute an unambiguous invocation of the right to remain 
silent. See Berghuis, 560 U.S. at 380-82. 
As Alfred was advised of his rights under Miranda, and did 
not unambiguously invoke either the right to counsel or the 
right to remain silent, the interrogation in this matter passed 
Constitutional muster. 
C. Search of Personal Effects 
 
The prevailing rule under the Fourth Amendment 
that searches and seizures may not be made 
without 
a 
warrant 
is 
subject 
to 
various 
exceptions. One of them permits warrantless 
searches incident to custodial arrests, and has 
traditionally 
been 
justified 
by 
the 
reasonableness 
of 
searching 
for 
weapons, 
instruments of escape, and evidence of crime 
when a person is taken into official custody and 
lawfully detained. 
 
United States v. Edwards, 415 U.S. 800, 802-03 (1974)(internal 
quotations omitted). A legal search incident to arrest is 
limited to the arrestee’s person and to the area within his 
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immediate control, from which he might gain possession of 
destructible evidence. See United States v. Myers, 308 F.3d 251, 
267 (3d Cir. 2002). 
It is also plain that searches and seizures that 
could be made on the spot at the time of arrest 
may legally be conducted later when the accused 
arrives at the place of detention. If need be, 
Abel v. United States, 362 U.S. 217, settled 
this question. There the defendant was arrested 
at his hotel, but the belongings taken with him 
to 
the 
place 
of 
detention 
were 
searched 
there.   In sustaining the search, the Court 
noted that a valid search of the property could 
have been made at the place of arrest and 
perceived little difference. 
 
Id. 803. 
 
In this case, the debit cards that Allen obtained from 
Alfred, had been contained in Alfred’s pocket. That is, they 
were somewhere within his immediate control.  The arrest conduct 
in this matter was financial in nature – Alfred was alleged to 
have forged checks. Alfred’s financial information or debit 
cards might be evidence and, if in his possession, the cards 
could easily be discarded or destroyed.  As such, the search 
would have been lawful if undertaken immediately upon Alfred’s 
arrest.  Delaying the search until Alfred was at the police 
station does not undermine its Constitutional underpining. See 
id. at 803. 
D. Obtaining Bank Records/Statements 
 
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Alfred challenges the government’s collection of his financial 
documents from his bank. In considering whether obtaining such 
records violated the Fourth Amendment, the Supreme Court stated 
that 
On their face, the documents subpoenaed here are 
not 
respondent's 
“private 
papers.” 
Unlike 
the 
claimant in Boyd, respondent can assert neither 
ownership nor possession. Instead, these are the 
business records of the banks. As we said in 
California Bankers Assn. v. Shultz, supra, 416 
U.S., at 48-49, 94 S.Ct., at 1511, 39 L.Ed.2d, at 
833, “(b)anks are . . . not . . . neutrals in 
transactions involving negotiable instruments, but 
parties to the instruments with a substantial stake 
in their continued availability and acceptance.” 
The records of respondent's accounts, like “all of 
the records (which are required to be kept pursuant 
to the Bank Secrecy Act,) pertain to transactions 
to which the bank was itself a party. 
  
. . . . 
 
Even if we direct our attention to the original 
checks and deposit slips, rather than to the 
microfilm copies actually viewed and obtained by 
means of the subpoena, we perceive no legitimate 
“expectation of privacy” in their contents. The 
checks are not confidential communications but 
negotiable instruments to be used in commercial 
transactions. 
All 
of 
the 
documents 
obtained, 
including financial statements and deposit slips, 
contain only information voluntarily conveyed to 
the banks and exposed to their employees in the 
ordinary course of business. 
 
. . . . 
 
The depositor takes the risk, in revealing his 
affairs to another, that the information will be 
conveyed by that person to the Government. This 
Court has held repeatedly that the Fourth Amendment 
does not prohibit the obtaining of information 
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revealed to a third party and conveyed by him to 
Government authorities, even if the information is 
revealed on the assumption that it will be used 
only for a limited purpose and the confidence 
placed in the third party will not be betrayed. 
 
United States v. Miller, 425 U.S. 435, 440-43 (1976).  The 
records and information that the government obtained from 
Alfred’s bank consist of: copies of cancelled checks, deposit 
slips, checking account transactions, debit statements, and 
various bank statements. It is clear that these documents fall 
completely within the holding of Miller. See id. (addressing 
bank records, check slips, and deposit slips.)  The records the 
government obtained were business records, to which the bank was 
a 
party, 
and 
the 
information 
contained 
within 
them 
was 
voluntarily relinquished by Alfred to the bank.  As such, the 
government’s receipt of these documents does not constitute a 
search within the meaning of the Fourth Amendment. See id. 
 
The premises considered, it is hereby 
 
 
ORDERED that Alfred’s motion to suppress is DENIED. 
 
 
 
 
  
 
 
S\ 
 
 
 
 
 
 
  
 
 
Curtis V. Gómez 
 
District Judge 
 
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