FOR PUBLICATION



SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX



People of the Virgin Islands, SES SES



Plaintiff Charges: Possession of Ammunition;



, Failure to Report Firearms Obtained



Outside or Brought into the Virgin

Islands; Possession of a Controlled

Substance with Intent to Distribute;

Possession of Drug Paraphernalia; and

Operating a Motor Vehicle without

Driver’s License



Troy A. Somme, Jr.,



Defendant.



Cite as: 2019 VI Super 95



Appearances:



PATRICIA QUINLAND, ESQ.



Assistant Attorney General



U.S. Virgin Islands Department of Justice

Christiansted, VI 00820



For Plaintiff



H. HANNIBAL O'BRYAN, ESQ.



Deputy Territorial Chief Public Defender

Office of the Territorial Public Defender

Kingshill, VI 00850



MEMORANDUM OPINION



MEADE, Judge



71 THIS MATTER came before the Court for a hearing on a motion the Defendant,

Troy A. Somme, Jr. (“Somme”), filed to suppress evidence and statements he made

after Virgin Islands police officers stopped him for speeding. Somme asserts that the

officers lacked probable cause to stop him because the officers “lacked radar or any



other speed detection equipment” and were “left to their ‘unfettered discretion’ to

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determine the rate of speed of passing motorist[s].” (Def.’s Mot. to Suppress Evid. &

Statements Alleged to Have Been Seized from Def. in Violation of Fourth & Fifth

Amends. 1, filed Aug. 25, 2017 (hereinafter Mot.”).) Somme contends that the officers

lacked probable cause and thus, the traffic stop violated his constitutional rights. This

Court agrees and holds that absent “sufficient additional indicia of reliability, an

officer's visual approximation that a vehicle is traveling in slight excess of the legal

speed limit is a guess that is merely conclusory and which lacks the necessary factual

foundation to provide an officer with reasonably trustworthy information to initiate a

traffic stop.” United States v. Sowards, 690 F.3d 583, 593 (4th Cir. 2012) (footnote and

citations omitted). Accordingly, Somme’s motion will be granted, and all evidence and

statements suppressed.

Background



{2 Around 11:00 p.m. on February 20, 2017, Virgin Islands Police Officers Aisha

Samuel-Jules (“Samuel”) and Michael Jules (“Jules”) observed a grey Acura heading

east on East End Road, St. Croix, U.S. Virgin Islands, travelling at a high rate of speed.

Samuel and Jules were parked near the Tide Village Service Station in a marked police

vehicle on special assignment targeting traffic offenses. The officers were parked inside

the gas station under a canopy. The gas station is located adjacent to East End Road,

just beyond a school zone. The speed limit in the area is 35 miles per hour. When the

officers saw the Acura pass, Samuel turned on the vehicle’s lights and sirens and they



pursued, eventually pulling the vehicle over further down the road.

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13 Once the vehicles came to a stop, Samuel asked the driver, later identified as

Somme, to exit the vehicle with his driver's license, the vehicle’s registration, and proof

of insurance. Somme complied and met the officers at the back of his vehicle. Samuel

asked Somme if he knew how fast he was driving, and Somme said he thought he was

going about 40 or 50 miles per hour. Samuel then asked Somme if he was driving over

the speed limit, but Somme said he did not know.



{4 Samuel testified that Somme provided her with a Florida driver's license that had

expired. Presumably the registration was current, and the vehicle insured, though the

officers did not say. Jules did testify that he smelled marijuana {fresh not burned)

emanating from Somme and Somme’s vehicle. He asked Somme if he had used

marijuana and Somme said yes; he had smoked some earlier at a friend’s house. Jules

then asked Somme if he had marijuana on him or in the car and Somme again said

yes. Jules instructed him to get it. Somme returned to the front of the vehicle to retrieve

the marijuana, which was located inside a console between the front seats. Either as

Somme was opening the console, or during the entire time he was back inside the

vehicle—the record is unclear—Jules shinned a flash light inside the vehicle and saw

the butt of a black gun inside the console. Jules asked Somme if he had a gun and

Somme said yes. Jules then placed Somme in handcuffs. He was later placed under

arrested and transported to police headquarters in Frederiksted where he was advised

of Miranda rights.



{5 Forensic officers were dispatched to secure the vehicle. In addition to the bag of



marijuana Somme handed over to Jules, Virgin Islands police officers found another

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bag of marijuana inside the console and much more inside a black duffle bag in the

back seat. Police also retrieved the firearm Jules spotted with his flashlight, as well as

a spare magazine. Thirteen live rounds of ammunition were contained in the firearm

and another fifteen live rounds were contained in the second magazine. The police also

seized a digital scale and approximately $2,300 in cash. A total of 1.68 pounds of

marijuana was taken from Somme’s vehicle.



46 Somme appeared before a Superior Court magistrate judge the next day,

February 21, 2017, where probable cause was found and where Somme was advised

of his rights. The People of the Virgin Islands formally charged Somme by information

on March 3, 2017, with one count of each of the following offenses: unauthorized

possession of a firearm, a violation of Title 14, Section 2253(a) of the Virgin Islands

Code; possession of ammunition, a violation of Title 14, Section 2256(a) of the Virgin

Islands Code; failure to report a firearm obtained outside or brought inside the Virgin

Islands, a violation of Title 23, Section 470(a) of the Virgin Islands Code; possession of

a controlled substance with intent to distribute, a violation of Title 16, Section 604(a)(1)

of the Virgin Islands Code; possession of drug paraphernalia, a violation of Title 19,

Sections 630(a) and 593(15) of the Virgin Islands Code; and operating a motor vehicle

without a valid driver’s license, a violation of Title 20, Section 371{a) of the Virgin

Islands Code. Somme was arraigned on March 8, 2017, where he entered a plea of not

guilty to all charges and released on bail.



17 Somme filed a motion on August 25, 2017, to suppress all statements and



evidence obtained from his arrest, claiming the Virgin Islands police officers were “left

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to their ‘unfettered discretion’ to determine the rate of speed of [a] passing motorist”

because “[t]hey were without radar or any other speed detection equipment.” (Mot. 1.)

The People of the Virgin Islands did not file a response. By order dated February 7,

2018, entered February 8, 2018, the Court scheduled a hearing for February 20, 2018.

Somme appeared personally and through counsel at the February 20, 2018 hearing;

the People appeared through counsel and called two witnesses, Virgin Islands Police

Officers Aisha Samuel-Jules (“Samuel”) and Michael Jules, Jr. (“Jules”). At the close of

the hearing, the Court took Somme’s motion under advisement. The People

subsequently filed a motion on March 1, 2018, to supplement their argument with case

law supporting their position. Somme did not respond to the People’s motion.

Discussion



48 “Asa general rule, the burden of proof is on the defendant who seeks to suppress

evidence.” People v. Matthew, 55 V.I. 380, 387 (Super. Ct. 2011) (citing United States

v. Acosta, 965 F.2d 1248, 1256 n.9 (3d Cir. 1992)). “However, once the defendant has

established a basis for his motion, ie., the search or seizure was conducted without a

warrant, the burden shifts to the government to show that the search or seizure was

reasonable.” Id. (citation omitted). At that point, “although it is the defendant who has

made the motion, it is the prosecution that bears the burden of proving that the

warrantless search was reasonable.” People v. Armstrong, 64 V.1. 528, 537 (2016)

(citations omitted). Here, there is no dispute that the police lacked a warrant; they



stopped Somme moments after he passed them driving on the public roads. Thus, the

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officers’ stop of Somme was a warrantless seizure and the People bears the burden to

show it was reasonable. See id.



49 “The Fourth Amendment protects persons from ‘unreasonable searches and

seizures.” People v. Looby, 68 V.I. 683, 694 (2018) (footnote omitted) (quoting U.S.

Const. amend IV).! “Generally . . . a judge or magistrate must issue a warrant upon a

finding of probable cause that describes, with particularity, both the place to be

searched and the persons or things to be seized.” Id. (citations omitted). Otherwise,

“searches conducted outside the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth Amendment — subject only to

a few specifically established and well-delineated exceptions.” Id. (quoting Katz v.

United States, 389 U.S. 347, 357 (1967)) (remaining citations and footnote omitted).

"410 One of the well-delineated exceptions to a limited warrantless seizure is a Terry

stop.? See Terry v. Ohio, 392 U.S. 1 (1968); see also Arizona v. Johnson, 555 U.S. 323

(2009). “A ‘Terry’ stop, simply put, is an investigatory process which usually entails a

vehicular stop, but encompasses any attempt by a law enforcement officer to literally

stop an individual to question the person.” People v. Blake, 65 V.I. 13, 16 (Super. Ct.



2012) (italics added). Generally, under Terry and its progeny, a temporary stop of a



1 The Fourth and Fifth Amendments to the Constitution of the United States apply to the Virgin Islands

through the Revised Organic Act of 1954. See Looby, 68 V.I. at 694 n.6; see also 48 U.S.C. § 1561.



# Also called a Terry traffic stop in the context of law enforcement temporarily seizing, or stopping, a

motor vehicle See United States v. Scott, No. 12-00115-01-CR-W-GAF, 2013 U.S. Dist. LEXIS 44124, *13

(W.D. Mo. Jan. 23, 2013) (“Not every proper Terry traffic stop . . . justifies the warrantless arrest of a

driver.”}; People v. Matous, 886 N.E.2d 1278, 1283 (Ill. Ct. App. 2008) (“An officer may conduct a Terry

traffic stop if the officer has a reasonable, articulable suspicion that (1) the driver is unlicensed; (2) the

vehicle is not registered; or (3) that either the vehicle, or an occupant of the vehicle, is subject to seizure

for violation of a law.” (citing Delaware v. Prouse, 440 U.S. 648 (1979)).

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vehicle is permissible if “the police officer reasonably suspects that the person

apprehended . . . has committed a criminal offense.” Johnson, 555 U.S. at 326; see

also id. at 327 (“Accordingly, we hold that, in a traffic-stop setting, the first Terry

condition—a lawful investigatory stop—is met whenever it is lawful for police to detain

an automobile and its occupants pending inquiry into a vehicular violation. The police

need not have, in addition, cause to believe any occupant of the vehicle is involved in

criminal activity.”).



{711 “A lawful roadside stop begins when a vehicle is pulled over for investigation of

a traffic violation.” Id. at 333. Here, the officers testified that they pulled Somme over

for speeding. Under Virgin Islands law, “[t]he rate of speed for motorcars, pick-up

trucks, or motorcycles shall not exceed 20 miles per hour within the town limits or 35

miles per hour on all public highways outside the town limits.” 20 V.I.C. § 494{b).

Neither officer testified whether East End Road is outside or inside the town limits of

Christiansted. However, Samuel testified that the speed limit was 35 miles per hour,

which would place the site where the officers saw Somme drive past them, outside the

town limits.



7112 Somme is not asserting that he was driving at or under the speed limit on

February 20th. Instead, what Somme takes issue with is the officers determining that

he was speeding solely by watching him drive past. “[T]he opinion of the office[r]

(without indication of what speed Mr. Somme was traveling at},” (Mot. 1), should not

be a basis for a traffic stop, Somme argues. And during cross-examination Somme did



elicit that the officers did not have a radar or other speed-detection device in their

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vehicle to determine the speed of passing cars, which begs the question Somme is

asking: must law enforcement officers use a speed-detection device before stopping a

car for speeding or can they rely on their own, visual determinations of speed. The

answer to this question has consequences because, although “[o]ne recognized

exception to the warrant requirement is a traffic stop,” and even though “the police do

not need a warrant to stop an automobile and conduct a brief investigation, the police

must nonetheless have probable cause [or reasonable suspicion] to believe that a traffic

violation has occurred before stopping a vehicle.” People v. Torres, No. SX-14-CR-457,

2015 V.I. LEXIS 96, *7 (Super. Ct. Aug. 15, 2015) (emphasis added) (quotation marks

and citations omitted). If a police officer can stop a vehicle for speeding based on the

officer’s own visual estimation of speed, then stopping Somme was reasonable. See

Whren v. United States, 517 U.S. 806, 819 (1996) (“[T]he officers had probable cause to

believe that petitioners had violated the traffic code. That rendered the stop reasonable

under the Fourth Amendment, [and] the evidence thereby discovered admissible.”); ef.

United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995) (“[O]fficers cannot make a

traffic stop without probable cause or a reasonable suspicion, based on articulable

facts, that a traffic violation has occurred.” (citations omitted)).



{113 Several courts to consider this question—whether a law enforcement officer’s

visual estimation of speed, especially when only slightly in excess of the limit, can

provide probable cause to stop a motorist for speeding—have reached different

conclusions. See, e.g., State v. Estes, 223 P.3d 287, 289-90 (Idaho Ct. App. 2009)



(reviewing divergent decisions but within the context of the sufficiency of the evidence

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to convict). “Many courts have held that a sufficiently trained officer’s visual estimate

of speed can supply reasonable suspicion to justify a traffic stop, and in some cases,

probable cause.” State v. Dunham, 67 A.3d 275, 278 (Vt. 2013) (citing United States v.

Colden, No. 11-M-989-SKG, 2011 U.S. Dist. LEXIS 122048, *2 (D. Md. Oct. 21, 2011);

Sazenski v. Comm’r of Pub. Safety, 368 N.W.2d 408, 409 (Minn. Ct. App. 1985); United

States. v. Ludwig, 641 F.3d 1243, 1247 (10th Cir. 2011); State v. Allen, 978 So. 2d 254,

256 (Fla. Dist. Ct. App. 2008); State v. Barnhill, 601 S.E.2d 215, 218 (N.C. Ct. App.

2004)).



914 Others have held it “not necessary that an officer have specialized training to be

able to visually estimate the speed of a vehicle” since “[e]xcessive speed of a vehicle

may be established by a law enforcement officer’s opinion as to the vehicle's speed after

observing it.” Barnhill, 601 S.E.2d at 218; accord Taylor v. Wimes, 632 N.W.2d 366,

372 (Neb. Ct. App. 2001) (“An officer’s determination that a driver is exceeding the

posted speed limit can be premised on a visual observation based on the speed of the

officer's vehicle and an observation of the driver’s vehicle in relation thereto.” (citations

omitted)); see also Dillard v. State, 550 S.W.2d 45, 53-54 (Tex. Ct. Crim. App. 1977)

(same). As the United States Court of Appeals for the Tenth Circuit observed, “[i]t’s long

been the case that an officer’s visual estimation can supply probable cause to support

a traffic stop for speeding in appropriate circumstances.” United States v. Ludwig, 641

F.3d 1243, 1247 (10th Cir. 2011) (citations omitted), cert. denied 535 U.S. 905 (2011);

accord United States v. Lork, 132 F. App’x 34, 35 (5th Cir. 2005) (per curiam); United



States v. Rivera, 10 F. App’x 617, 618 (9th Cir. 2001) (mem.). But courts have begun

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to appreciate that “the eyes can deceive” and to question whether a police officer's

“training in speed estimation” is recurring or “dates back to his time in the police

academy.” Ludwig, 641 F.3d at 1247.



{15 In United States v. Sowards, 690 F.3d at 591, the United States Court of Appeals

for the Fourth Circuit held “that at a minimum there must be sufficient indicia of

reliability for a court to credit as reasonable an officer's visual estimate of speed.” In

Sowards, a North Carolina state police officer stopped a driver travelling five miles

above the speed limit: 75 miles per hour in a 70 mile-per-hour zone. See id. at 593.

The district court denied the defendant's motion to suppress. On appeal, the Fourth

Circuit reversed, concluding that the officer’s visual estimation of the driver’s speed

lacked the “‘reasonably trustworthy information sufficient to warrant a prudent person

in believing that [the driver] had committed’ a speeding violation.” Id. (ellipsis and

brackets omitted) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). Siding with the Court

of Appeals of Missouri, the Fourth Circuit “agree[d] that ‘the accuracy of human

estimation of speed cannot easily, readily, and accurately discriminate between such

small variations in speed.” Id. at 594 (quoting State v. Kimes, 234 S.W.3d 594, 589

(Mo. Ct. App. 2007)).



{16 The Sowards court contrasted two scenarios to reach its decision. First, “where

an officer estimates that a vehicle is traveling in significant excess of the legal speed

limit, the speed differential—i.e., the percentage difference between the estimated

speed and the legal speed limit—may itself provide sufficient ‘indicia of reliability’ to



support an officer's probable cause determination.” Id. at 591-92 (emphasis added)

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{citations omitted). Second, “where an officer estimates that a vehicle is traveling in

only slight excess of the legal speed limit, and particularly where the alleged violation

is at a speed differential difficult for the naked eye to discern, an officer's visual speed

estimate requires additional indicia of reliability to support probable cause.” Id. at 592

(emphasis added) (citations omitted).

{17 It is in this second scenario—where the observed speed exceeds the speed limit

just slightly—where, “in the totality of the circumstances, the reasonableness of the

officer’s visual speed estimate” has to “be supported by radar, pacing methods, or other

indicia of reliability,” the Fourth Circuit concluded. Id. at 592-93 (citations omitted).

Otherwise, without such “additional indicia of reliability, an officer's visual

approximation that a vehicle is traveling in slight excess of the legal speed limit is a

guess,” the court held, and “lacks the necessary factual foundation to provide an officer

with reasonably trustworthy information to initiate a traffic stop.” Id. at 593 (citations

and footnote omitted). This Court agrees with the Sowards court.

918 Here, the officers’ testimony lacked indicia of reliability to support finding a

reasonable suspicion to stop Somme.



To find that reasonable suspicion existed to justify a stop, a court must



examine the “totality of the circumstances” in the situation at hand, in



light of the individual officers’ own training and experience, and should



uphold the stop only if it finds that “the detaining officer had a



particularized and objective basis for suspecting legal wrongdoing.”



Emanuel v. People, 68 V.I. 666, 673 (2018) (quoting United States v. Arvizu, 534 U.S.



266, 273 (2002)) (internal quotation marks omitted).$



3 The Supreme Court of the Virgin Islands applied the “reasonable suspicion” standard in Emmanuel,

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{19 Samuel testified that she underwent three months of on-the-job testing, riding

along with other officers assigned to traffic duties, and had cited drivers for speeding

in the past. But Samuel did not testify as to any specific training in visually detecting

the speed of moving vehicles. Moreover, Samuel did not say how fast Somme was

driving. Instead, she only estimated that Somme was travelling at “a high rate of speed.”

Her testimony cannot support a finding of reasonable suspicion. See Emmanuel, 68

V.I. at 683 (“[A] court . . . should uphold the stop only if it finds that the detaining

officer had a particularized and objective basis for suspecting legal wrongdoing.”

(emphasis added) (quotation marks, brackets, and citations omitted)).



{20 Jules, on the other hand, estimated Somme's speed as between 40 and 50 miles

an hour, i.e., between five and fifteen miles above the speed limit. He also testified that

he underwent training to operate speed detection devices as well as to be able to detect



speed visually. According to Jules, he was required to stand on Airport Road in Estate



without expressly adopting that standard over the traditional “probable cause” standard for evaluating

the propriety of a traffic stop. Cf. Rodriguez v. United States, 135 S. Ct. 1609, 1621 (2015) (Alito, J.,

dissenting) (“Traffic stops can be initiated based on probable cause or reasonable suspicion.”); see also

United States v. Delfin-Colina, 464 F.3d 392, 397 (3d Cir. 2006) (“Thus, we now join our sister circuits

in holding that the Terry reasonable suspicion standard applies to routine traffic stops."). The distinction

is typically case-specific. Where the stop is to investigate whether a crime has been committed, driving

an uninsured vehicle, for example, reasonable suspicion is required because an officer typically cannot

determine whether a vehicle is not insured by looking at it. By contrast, running a red light would supply

the officer with probable cause if the officer witnessed the infraction. Accord State v. Wilson, 574 S.E.2d

93, 97-98 (N.C. Ct. App. 2002) (“While there are instances in which a traffic stop is also an investigatory

stop, warranting the use of the lower standard of reasonable suspicion, the two are not always

synonymous. A traffic stop made on the basis of a readily observed traffic violation such as speeding or

running a red light is governed by probable cause. . . . On the other hand, a traffic stop based on an

officer's reasonable suspicion that a traffic violation is being committed, but which can only be verified

by stopping the vehicle, such as drunk driving or driving with a revoked license, is classified as an

investigatory stop, also known as a Terry stop.” (citations and brackets omitted)). Nonetheless, because

Emmanuel is binding precedent, and because Emmanuel applied the reasonable suspicion stand, this

Court proceeds that the governing standard for evaluating the propriety of a traffic stop is reasonable

suspicion.

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Enfield Green while another officer drove past and then circled back and ask how fast

the car was going. he had to gauge the correct speed within 5 miles before he could

graduate to speed detection devices.



7121 Accepting that his training qualifies as a legitimate means of detecting the speed

of passing vehicles, cf. Dunham, 67 A.3d at 279 (“training included watching vehicles,

estimating their speed, and then confirming the speed estimate by use of radar. To

successfully complete this aspect of radar training, it was necessary for the officers to

estimate vehicle speed to an accuracy of five miles per hour.”}), Somme nonetheless

correctly points out that gauging the speed of a passing vehicle on a flat road during

the day is not the same as gauging the speed of a passing vehicle on a curving road at

night. What's more, Jules did not testify as to whether his training was in traveling or

stationary mode, but cf. Estes, 223 P.3d at 290 (office testimony noted that “as part of

... radar training and certification, we were required to estimate vehicles as we were

in a traveling mode or as we were in a stationary mode.”), how many hours he

completed, but cf. People v. Nice, 202 Cal. Rptr. 3d 860, 871 (Ct. App. 2016) (“Officer

Beretta testified to 40 hours of radar certification training, which included training on

visual speed estimations and allowed only a five-mile-per-hour margin of error. Officer

Beretta’s training and field experience also included taking visual speed estimates

while moving, and numbered “probably a thousand at least” visual speed estimations

in the field.”), or how long ago he was certified and whether has to be recertified from



time-to-time. But cf. Estes, 223 P.3d at 290.

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{22 Jules testified that Somme was driving approximately 40 to 50 miles an hour

and the speed limit on East End Road is 35 miles per hour. However, according to

Jules, his own training allowed him to be off by 5 miles an hour in gauging the speed

of passing vehicles. Thus, factoring in Jules's own error rate means that Somme might

have been driving five miles under Jules’s estimate, i.e., between 35 to 45 miles an

hour. Admittedly, it could also mean that Somme may have been driving five miles

above Jules’s estimate, i.e., between 45 and 55 miles an hour ~ if Jules’s error rate

tended be lower, rather than higher, than the actual speed. But the Court cannot make

a determination here because the prosecution did not develop Jules’s testimony.



123 On a motion to suppress, the prosecution has the burden of proof and

persuasion once the defendant raises a constitutional challenge to the reasonableness

of the stop of his vehicle. See Armstrong, 64 V.I. at 537 (“[I]t is the prosecution [who]

bears the burden of proving that the warrantless search was reasonable.” (citations

omitted)). Here, the People failed to carry their burden to show that the officers had a

reasonable suspicion to stop Somme. It was about an hour before midnight when

Somme drove past the officers and their vehicle was parked, not travelling, underneath

an overhead canopy. Neither officer testified to weather conditions that night, but cf.

Ludwig, 641 F.3d at 1247, or to anything unusual in how Somme passed them. But ef.

Colden, 2011 U.S. Dist. LEXIS 122048 at *3 (“Officer Bunting’s visual estimation of

defendant’s speed, in combination with the officer’s observations that his car shook

and that defendant tapped his brakes, amounts to a reasonable articulable suspicion



that defendant was speeding.” (citing Smith v. State, 957 A.2d 1139 (Md. 2006)). Neither

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officer testified to any sounds or movements like an “engine racing [or] the bouncing of

the car as it passed through the intersection” that would have “furnished [them] with

a sufficient blend of circumstances to establish there was a fair probability that

defendant was exceeding a speed greater than was [permitted].” Barnhill, 601 S.E.2d

at 216. Nor did the officers testify that Somme was driving upwards of 20 or 30 miles

above the speed limit. But cf. United States v. Banks, No. 2:08-cr-19-FtM-29SPC, 2008

U.S. Dist. LEXIS 69809, *3 (M.D. Fla. Sep. 11, 2008) (affirming magistrate judge finding

of probable cause where officer testified that defendant was travelling 20 to 30 miles

above posted speed limit). And the officers also did not testify that they paced Somme’s

vehicle to gauge his speed. But cf. State v. Hicks, 791 N.W.2d 89, 91 {Iowa 2010) (“While

following the car, Sparks attempted to drive at the same speed as the vehicle in front

of him, a police tactic known as pacing.”).



G24 Unlike in Ludwig, where the officer “enjoyed a fine view,” and where “the day was

crystal clear and the [officer] possessed 15 years’ experience as a highway patrolman

watching cars and estimating speeds,” 641 F.3d at 1247, or in Barnhill, where the

officer testified to “an unobstructed view of the vehicle, as well as ample opportunity to

observe defendant’s progress up [the street],” 601 S.E.2d at 218, or in Taylor, where

the officer was travelling in the same direction and traveled behind the defendant to

gauge the defendant’s speed, see 632 N.W.2d at 372, or even in Allen, where the court

cited State v. Joy, 637 So.2d 946 (Fla. Ct. App. 1994), a case in which the officer

“testified that he heard a ‘whoosh’ sound, saw dust, and heard the truck's engine



revving,” 978 So.2d at 255-56 (citing Joy, 637 So.2d at 947), the facts elicited by the

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prosecution in this case do not have any additional indicia of reliability to support

finding that the officers had a reasonable suspicion that Somme was speeding. In fact,

the prosecution did not even charge Somme with speeding. “[W]ith proper foundation,

an officer's visual estimation of speed may be sufficient to supply probable cause to

stop a vehicle for speeding. But that is not the case here.” State v. Petzoldt, No. 1-

374/10-0861, 2011 Iowa App. LEXIS 480, *9 (lowa Ct. App. June 29, 2011) (footnote

omitted).



425 Nevertheless, even though “an experienced officer cannot testify as to the exact

speed of a vehicle with precise accuracy, it does not mean that such testimony should

be ignored in all cases.” Kimes, 234 S.W.3d at 589 (citing People v. Olsen, 239 N.E.2d

354, 355 (N.Y. 1968)). Instead, “as the variance between the estimated speed and the

speed limit increases, the level of certainty... that a defendant is exceeding that speed

limit also increases.” Id. at 589. But here, when Jules’s admitted error rate factored in,

Somme would have been driving roughly five to ten miles above the speed limit. Without

more, it is not possible to credit Jules’s visual estimation. Instead, his “visual speed

estimate was in fact a guess that was merely conclusory, without an appropriate

factual foundation, and simply lacking in the necessary indicia of reliability to be an

objectively reasonable basis for probable cause to initiate a traffic stop.” Sowards, 690



F.3d at 594. Consequently, all the evidence seized from Somme must be suppressed.

People v. Somme



Case No. SX-17-CR-058

MEMORANDUM OPINION

Page 17 of 17



2019 VI Super 95



Conclusion

For the reasons stated above, the Court will grant Somme’s motion and suppress

all evidence seized by and statements made to the Virgin Islands Police Department as



a result of the February 20, 2017 traffic stop. An appropriate order follows.



Dated this G _ day of July, 2019. : Male



JOMO MEADE

Judge of the Superior Court



ATTEST:

Estrella H. George

Clerk of the Court



Cowtrt Clerk Supervisor



Dated: 7% /_¢ LA