IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS



DIVISION OF CHRISTIANSTED AT ST. CROIX



GOVERNMENT OF THE VIRGIN ISLANDS



)

)

PLAINTIFF. }

) CRIMINAL NO. 40/1982

vs. )

)}) BURGLARY THIRD DEGREE and

) PETIT LARCENY

HAROLD DIAZ )

) I

DEFENDANT ) |

)

)



MEMORANDUM OPINION

(May il 71982)



| ANTHONY A. TAYLOR



| ASSISTANT ATTORNEY GENERAL



; OFFICE OF THE ATTORNEY GENERAL



i; TORO BUILDING, GOLDEN ROCK f aa

CHRISTIANSTED, ST. CROIX



--Attorney for Govervment



RANDALL S. JOHNS, ESQ.

HAMILTON SUITE GROTTO is



SUITE G-5 | i 4



CHRISTIANSTED, ST. CROIX



--Attorney for Defendant



SILVERLIGHT, Judge na



This matter comes before the Court on defendant Diaz's

Motion to Suppress ehyaioat evidence. The Government has conceded

that the search in issue was a warrantless search. By reason of

t this concession, the burden of persuasion is placed upon the

| Government. From the testimony of the various witnesses, I find



the following facts.

On ontasont November 16, 1981, Corporal Libertad Velasquez

)\a member of the Department of Public Safety responded to a radio

communication advising him of an alleged burglary which had

' occurred at premises known as No. 89 Estate St. George, Frederikste

St. Croix. In response to such radio communication he

“reversed his course of travel and covered the distance from



Estate Hogensburg, which was his location at the time of reception



of the communication, to the entrance of Estate St. George

ee



GOVERNMENT V. DIAZ



MEMORANDUM OPINION



PAGE 2



in a matter of minutes.



Upon arrival at the entrance gates of Estate St. George, he



observed a jeep containing a driver and two persons in the rear

‘seat as well as a brown automobile stopped immadiatealyabenind



the jeep. As he turned into the-entrance, the driver of the

brown vehicle blew his horn to attract the corporal's attention.

As a result of this Velasquez stopped his vehicle and conferred

with the driver of the brown automobile whom’ he later discovered

to be the alleged victim, Mr. Barrant.



Barrant advised Velasquez that he was the person who called



in the police report; that when he told Swanson of an alleged



, burglary, Swanson commented that he had just passed two young

jmen on the road leading to the Estate St. George entrance as he,

Neper-seteyaye was driving in; that Swanson had thereupon turned around

| and picked up the two young men to whom Swanson had TSMC YS AEL| and

lenae he thought Velasquez should check them out. As a rasute of

Werte single communication from Barrant to Velasquez, the officer

| approached the jeep and commenced questioning both defendants.

Velasquez requested them to identify themselves and explain the

basis of, their presence in the area. [In Bune tAnce their response

jwas that ghey were there to see a gentleman whose name Velasquez

did not remember. but which defendants had given to him, although

| they further stated that they did not know where this person could

_be found except. that he was in Estate St. George. They further



stated that their intended purpose in meeting with this person was



to get a job cutting grass. This investigative stop was unlawful. |



)|/People v. Moorhead, 15 Cr. L. Rpt. 2454. At this juncture



Velasquez told them to get out of the jeep, frisked them, and

‘then directed them to empty their pockets which they did.



The officer testified that he sonsiaered them under arrest

“at this point in time. Defendants knew Velasquez to be a police



officer and under the circumstances then present, their freedom



}

f

GOVERNMENT V. DIAZ

MEMORANDUM OPINION

PAGE 3



1/



to leave was impliedly restricted.



When the contents of the defendant pockets were examined,

among the items taken from defendant Towers was a nail clipper

identified by Barrant as his property, taken from his house. In

the interim, Officer Roman as well as other officers arrived at

the scene and all persons repaired to the Barrant house. After a

more thorough examination of the premises Barrant reported that



some wrist watches had been taken and Velasquez then re-searched



- Diaz's person. Hidden in the waist band of Diaz's underclothing



two watches later identified as belonging to Barrant were found.

As may be seen from the foregoing recital of the facts,



the police officer had no probable cause to make an arrest.



Clearly, the mere unexplained presence of an individual in the



area of an alleged burglary without more does not rise to the



| level of probable cause. Certainly the officer had a right to



ii

i



"stop and frisk" the defendants under the rationale of Terry v.



! Ohio, 392-U.S. 1 (1968). Terry v. Ohio, however, gave the officer



no authority to conduct more than a minimally intrusive search



‘consisting of a pat down of defendant's outer garments. The



, Support the subsequent. search. Draper v. U.S., 358.U.S..307 ‘.



officer's testimony discloses that the pat down was fruitless.



i

4 =

| Neither can the search be justified under the "search incident"



exception since that exception is bottomed upon a lawful arrest.

As has been indicated, the arrest in this case not having been



based upon probable cause, was unlawful and cannot, therefore,



mt



1/



It is true that Velasquez testified, as the Government

argues, that Swanson informed the officer that the defendants

fit the description of burglars who had allegedly burglarized

his home on an earlier date. This disclosure, however, came

after the arrest and first search of the defendants. The Govern-



ment cannot “bootstrap" to render this arrest lawful.

GOVERNMENT V. DIAZ



MEMORANDUM OPINION



PAGE 4



(1959). Both the constitution of the United States and the

Revised Organic Act of 1954 define all warrantless searches

as unreasonable unless they fall within one of the recognized



exceptions such as the "search incident." U.S. CONST. amend.



IV; Revised Organic of 1954 §3. See Trupiano v. U.S., 334 U.S.



699 (1948). Since the initial search which resulted in the

discovery of the toe nail clipper was the result of an



unlawful search, any evidence derived as a result of that search

or any further searches without a warrant is tainted as the



“fruit of a poisonous tree." Accordingly, the toe nail clipper



and each of the two watches described in the testimony of



fk



ee



Velasquez shall be excluded as evidence in the trial of this cause



DATED: May //, 1982



ENTERED:



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