IN THE DISTRICT COURT OF THE VIRGIN ISLANDS 
DIVISION OF ST. CROIX 
 
UNITED STATES OF AMERICA,  
 
) 
 
 
 
 
 
 
 
) 
Plaintiff, 
 
 
)  
CRIM. NO.: 10-cr-0009 
 
 
v. 
 
 
 
 
) 
 
 
 
 
 
 
 
) 
STEPHEN GARVEY, a/k/a “BIGGA” 
 
) 
 
MALIK GARVEY, 
 
 
 
 
) 
ORLANDO CARINO, 
 
 
 
) 
DAREN HENRY, 
 
 
 
 
) 
CHRISTOPHER JACOBS a/k/a “KIMO,”  
) 
DAVID ROLDAN a/k/a “BEBO,” 
 
 
) 
ALPHONSO GARVEY, and  
 
 
) 
EDWARDO GOMEZ 
 
 
 
) 
 
 
 
 
 
 
 
) 
 
 
 
Defendants. 
 
 
) 
_________________________________________ ) 
 
 
MEMORANDUM OPINION AND ORDER 
Finch, Senior Judge 
 
THIS MATTER is before the Court on Defendant David Roldan‟s Motion to Suppress 
Evidence.  Defendant seeks to suppress a Blackberry cellular phone seized from his person 
during the execution of a search warrant of his codefendant‟s home located at 219 Sion Hill, in 
Christiansted on February 17, 2010, as well as the contents of that phone and statements that he 
made to the police following the search.  Because the Government has failed to show that it had 
a warrant to search Defendant, his motion is granted.  
I. 
Facts 
David Roldan is one of eight defendants charged with conspiracy to distribute 295 
pounds of marijuana.  In addition, Defendant Roldan is separately charged with using a 
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telephone in facilitating the conspiracy to distribute marijuana.  On February 16, 2010 Agent 
Semrick of the Drug Enforcement Agency (DEA) obtained a warrant to search to search the 
home of Steven Garvey, located at 219 Sion Hill.  The warrant authorized law enforcement to 
search the residence and “[a]ny other buildings, storage sheds or vehicles that are located within 
the confines of the physical property.”  (See Search Warrant, attachment “A-3”.)  Attachment B 
of the search listed the property to be seized which included “cellular telephone and other 
instruments used to communicate with other co-conspirators.”  (See Search Warrant, attachment 
“B”.)  
On February 17, 2010, Special Agent Semrick, Officer Ortiz of the Virgin Islands Police 
Department and other law enforcement officers executed the search warrant at 219 Sion Hill.   At 
the time of the search, Roldan was located in the carport of 219 Sion Hill.  At some point during 
the search, Officer Ortiz noticed Roldan “trying to hide a Blackberry cell phone.”1   Officer Ortiz 
then performed a search on Roldan, found his Blackberry and confiscated it.  Law enforcement 
subsequently searched through the contents of Roldan‟s Blackberry and found a picture of a 
DEA agent‟s car.  Upon finding the picture on Roldan‟s cell phone, Roldan was brought to the 
High Intensity Drug Trafficking Area Office where he was questioned about the picture.          
II. 
Analysis 
Defendant challenges two separate aspects of the police‟s conduct.  First, Defendant 
argues that law enforcement unlawfully searched him whilst he was at 219 Sion Hill.  Defendant 
contends that he was not subject to search simply because he happened to be located on property 
                                                          
1 At the suppression hearing, Agent Semrick testified that he did not witness the seizure of the 
cell phone, but that he read about the seizure in Officer Ortiz‟s report.  Officer Ortiz was not 
present at the hearing. 
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for which the Government had obtained a search warrant.   Second, Defendant argues that the 
Government again committed an unlawful search when it examined the data on his phone and 
found the picture of the DEA agent‟s car. 
At the suppression hearing, Agent Semrick testified that Officer Ortiz “seized” the 
Blackberry from Defendant Roldan.  The Court finds that this conduct constitutes a seizure for 
Fourth Amendment purposes.  Thus, the Government bears the burden of showing that this 
seizure was reasonable.  United States v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005) (“On a motion 
to suppress, the government bears the burden of showing that each individual act constituting a 
search or seizure under the Fourth Amendment was reasonable.”)   
The Government argues that because the search warrant specifically covered cell phones, 
and because Roldan was located on the property at the time of the search, it had the right to seize 
his Blackberry cell phone.  The leading case on this area of Fourth Amendment jurisprudence is 
Ybarra v. Illinois, 44 U.S. 85 (1979).  In Ybarra, the Supreme Court held that police executing a 
warrant authorizing the search of a bar for narcotics lacked probable cause to search individual 
patrons within the bar. The Court stated: 
Where the standard is probable cause, a search or seizure of a person must be 
supported by probable cause particularized with respect to that person. This 
requirement cannot be undercut or avoided by simply pointing to the fact that 
coincidentally there exists probable cause to search or seize another or to search 
the premises where the person may happen to be. 
Id. at 9; see also Leveto v. Lapina, 258 F.3d 156, 165 (3d Cir. 2001) (“Thus, even though the 
police in Ybarra had a warrant to search the tavern in question, the police were not justified in 
patting down Ybarra merely because he was on the premises at the time of execution.”). 
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Following Ybarra, the Third Circuit and other courts have held that “possession of a 
warrant to search particular premises is not alone sufficient to justify a pat down of a person 
found on the premises at the time of execution.”  Leveto, 258 F.3d at 164 (finding that plaintiffs 
had stated civil rights claim for police frisk conducted without warrant or reasonable suspicion); 
United States v. Abbott, 574 F.3d 203, 212 (3d Cir. 2009) (“[A] search or seizure of a person 
must be supported by probable cause particularized with respect to that person.”) (quoting 
Ybarra,  44 U.S. at 91); United States v. Clay, 640 F.2d 157, 160 (8th Cir. 1981) (“The question 
remains whether the evidence of criminal activity within the house being searched justified the 
police in searching anyone who approached the premises. The warrant is of no help to the 
government in its attempt to justify the search. The warrant only gave the police authority to be 
on the premises, not to search anyone that came to the door during the time of the search.”); 
United States v. Cole, 628 F.2d 897, 899 (5th Cir. 1980) (pat down of individual who pulled into 
carport as police arrived to execute warrant at residence not justified).  Thus, the warrant was an 
insufficient basis to seize Defendant‟s cell phone.   
 
Next, the Court turns to the Government‟s contention that Defendant‟s alleged attempt to 
“hide” the cell phone provided a justification for its seizure.  The Government cites no law 
supporting its contention that an attempt by a third party to hide his own cell phone during the 
execution of a search warrant provides justification for a seizure of that phone.  It is beyond 
doubt that police may permissibly conduct “a reasonable search for weapons for the protection of 
the ... officer, where [the officer] has reason to believe that he is dealing with an armed and 
dangerous individual, regardless of whether he has probable cause to arrest the individual.” Terry 
v. Ohio, 392 U.S. 1, 27 (1968).  But here, the Government advanced no argument that Defendant 
was searched for officer safety and offered no evidence that Officer Ortiz possessed an 
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“articulable suspicion that [Roldan] [wa]s armed and dangerous.”  Michigan v. Long, 463 U.S. 
1032, 1034 (1983).  A Blackberry, even one of the earlier clunkier models, poses no serious 
threat to officer safety.  And even if Officer Ortiz searched Roldan out of concern for his safety, 
this would not justify seizing the phone.  Once Officer Ortiz discovered that the object in 
question was a phone, he was no longer justified in seizing it.  United States v. Yamba, 506 F.3d 
251, 256 (3d Cir. 2007) (“Assuming that an officer is authorized to conduct a Terry search at all, 
he is authorized to assure himself that a suspect has no weapons . . . If, however, the officer „goes 
beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry 
and its fruits will be suppressed.‟” (citing  Minnesota v. Dickerson, 508 U.S. 366, 373 (1993))).  
Accordingly, the phone and any data obtained from the phone must be suppressed.2 
III. 
Conclusion 
For the above reasons, the Court GRANTS Defendant Roldan‟s Motion to Suppress.  
The Court ORDERS that Defendant‟s Blackberry cell phone and data obtained from that cell 
phone are inadmissible against Defendant Roldan. 
 
 
 
 
 
ENTERED: 
Dated: September 17, 2010 
 
 
 
 
 
 
 
 
 
 
 
 
 
___________/s/________________ 
 
 
 
 
 
 
RAYMOND L. FINCH 
SENIOR U.S. DISTRICT JUDGE 
                                                          
2 At the hearing, the Government conceded that certain statements made by Roldan following the 
seizure of his phone would not be admissible at trial under Bruton v. United States, 391 U.S. 123 
(1968) and Crawford v. Washington, 541 U.S. 36 (2004).  Accordingly, the Court need not now 
determine whether these statements are admissible.  However, should the Government attempt to 
introduce them at trial, in addition to any Bruton or Crawford analysis, the Court will also 
address whether they are the fruits of this illegal search at that time. 
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