FOR OFFICIAL PUBLICATION



SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST.CROIX



PEOPLE OF THE VIRGIN ISLANDS, ) CASE NO. SX-15-CR-376

) CASE NO. SX-15-CR-377

Plaintiff,



Vv.



MALACHI BENJAMIN and OMAR B.

JOSEPH,



Defendants.



i i ed



Cite as: 2020 VI Super 34

Appearances:



ERIC S. CHANCELLOR, ESQ.

DAMON WATSON-WILLIS, ESQ.1

Assistant Attorney General



Virgin Islands Department of Justice

Kingshill, V1 00850



For People of the Virgin Islands



AMELIA B. JOSEPH, ESQ.



Office of the Territorial Public Defender

Kingshill, VI 00850



For Malachi Benjamin



MICHAEL A. JOSEPH, ESQ.

Christiansted, VI 00820

For Omar A. Joseph

ME DUM OP

MOLLOY, Judge.

qi BEFORE THE COURT are motions filed by the Defendants, Malachi Benjamin (“Benjamin”)



and Omar B. Joseph (“Joseph”), to suppress evidence allegedly seized in violation of the Fourth



‘ Counsel at the time the motions were argued. The Court takes judicial notice that counsel is no longer employed with

the Department. Attorney Chancellor appeared in Benjamin when Benjamin was arrested on a bench warrant. But

successor counsel has not formally entered an appearance in either case.

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Page 2 of 9



Amendment. The People of the Virgin Islands (the “People”) oppose. For the reasons stated below,

the Court will deny the motions.



I. FACTUAL BACKGROUND

{2 On the evening of December 16, 2015, officers of the Virgin Islands Police Department

(“VIPD”) were engaged in a crime-reduction initiative in Frederiksted, St. Croix. Between 6:00 p.m.

and 8:25 p.m. that night, VIPD Officers Rolando Huertas (“Huertas”), Orlando Benitez Jr. (“Benitez”),

and Nyeim France were on patrol in an unmarked police vehicle in the area of Hospital Street. The

vehicle’s windows were rolled down. As they approached 39B Hospital Street (“the house”), Huertas

smelled a strong odor of marijuana. Huertas has fifteen years of experience and extensive training

in identifying illegal drugs. The marijuana odor intensified as the officers drove toward the front of

the house. The road is “right in front of the residence.” (Hr’g Tr. 46:14-15 (Sept. 6, 2016).) While still

in the vehicle on the public road, Huertas observed a light cloud of smoke rising up from the front

of the house. Two people were seated in “a little porch” in front of the house, and one was standing

just outside. fd. at 11:11-12. The persons on the porch were later identified as Joseph and Benjamin.2

13 The porch is relatively small with an irregular “wooden type ... fence” made of uneven slats

with three- to four-inch gaps directly above the curb. (See Pls.’ Ex.1; Defs’ Joint Ex. 1.) The officers

stopped the vehicle directly in front of the residence. From the vehicle, Huertas could see two large

cement blocks on the porch. Items on the porch were also clearly visible from up to fifteen feet away.

The officers did not notice any porch lights or streetlamps. But the area was illuminated by the

headlights of the unmarked police vehicle.

14 While still in the vehicle, Huertas identified himself as a police officer and asked Benjamin

and Joseph what they were doing. Benjamin said, “just chilling.” /d. at 16:10. Huertas then saw

Benjamin make a quick movement with his hand. He shined his flashlight directly at Benjamin and

Joseph and saw “what appeared to be a firearm sticking out from a holster inside of th[{e] cinder

block.” Id. at 28:23-25. The gun was later identified as a Silver Taurus .38 Special Revolver with five

live rounds in the cylinder. For safety reasons, Huertas called out a police code for “gun” to avoid

reaction because shootings had been reported in the area the night before.



15 Huertas exited the vehicle and ordered Joseph and Benjamin to put their hands in the air and



2 A third individual at the scene was not arrested.

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keep them visible. Huertas then walked toward the porch and stopped near a silver scooter leaning

against the street-side of the porch entrance. Standing near the entrance to the porch, Huertas

ordered Joseph to walk toward him. While Huertas was securing Joseph, Benitez noticed a second

firearm, later identified as a Colt 22 LR revolver, which was inside the cinderblock Benjamin had

been sitting on. The Colt revolver had five live rounds in the chamber. After alerting officers to the

presence of another firearm, Benitez detained Benjamin per police procedure to secure an area to

prevent anyone from accessing the weapons.



76 Joseph and Benjamin were asked about the firearms. Both said they had the guns for

protection. See id. at 34:9-11 (“Mr. Joseph said that’s for protection. Mr. Benjamin said we need

protection.”). Huertas asked them if they had licenses for the firearms. They said no. Huertas then

advised them of their rights. After the guns were secured, Joseph and Benjamin were placed in

handcuffs and transferred to the police station. A vial later identified as marijuana was discovered

in the bushes to the north side of the porch—the same direction of Benjamin’s quick hand

movement. At the police station, Officer Karen Stout, Custodian of Firearms Records, confirmed that

neither individual was licensed to carry a firearm in the Virgin Islands and, further, that the .38

Special Revolver had been reported stolen. Huertas then arrested Joseph and Benjamin. The People

later charged Joseph and Benjamin with unauthorized possession of a firearm in violation of 14

V.I.C. § 2253(a); unauthorized possession of ammunition in violation of 14 V.I.C. § 2256(a); and

failure to report firearms obtained or brought into the Virgin Islands in violation of 23 V.I.C. §

470(a). Both Defendants later moved to suppress the firearms.3



Il. LEGAL STANARD

17 The Fourth Amendment generally protects individuals from ‘governmental intrusion not



authorized by a warrant’ ....”4 Simmonds v. People, 53 V.I. 549, 555-56 (2010) (quoting United States



3 Technically, only Benjamin filed a motion with substantive arguments and citations to authority. Joseph filed a one-

page motion without little argument or citations to authority, which ordinarily constitutes waiver. Cf People v. Ventura,

SX-12-CR-076, 2014 V.I. LEXIS $3, *33-34 n.5 (V.I. Super. Ct. July 25, 2014), affd in part and rev'd in part and remanded,

64 V.I. 589 (2016). Similarly situated criminal co-defendants are entitled to rely on each other’s arguments, however.

See Rivera v. People, 64 V.I. 540,587 (2016) (holding that it would be manifestly unjust to treat “identically situated co-

defendants...’ [differently by] addressing an issue raised by one defendant but waived by another.” (quoting Boston v.

People, 56 V.1. 634, 644-45 (2012)). Thus, the Court construes Benjamin's one-page motion as a notice of joinder.



*“The Fourth Amendment to the U.S. Constitution applies to the U.S. Virgin Islands through section 3 of the Revised

Organic Act of 1954.” People v. Berkley, 70 V.I. 655, 665 n.2 (Super. Ct. 2019) (brackets and citation omitted)

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v. Karo, 468 U.S. 705, 714-15 (1984}). And “[i]t is beyond debate that individuals have a reasonable

expectation of privacy in their homes. /d. at 555. Warrantless searches and seizures are “per se

unreasonable absent one of a few well-delineated exceptions.” People v. Berkley, 70 V.I. 655, 665

(Super. Ct. 2019) (ellipses and brackets omitted) (quoting Browne v. People, 56 V.I. 207, 217 (2012)).

One exception is law enforcement’s interest in “‘effectuating a search and seizure [which can]



”



outweigh[] privacy interests.” /d. (ellipses and citation omitted). However, once a defendant claims

he was searched without a warrant, the prosecution must show that the search was reasonable.

Accord United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995) (“[O]nce the defendant has

established a basis for his motion, i.e., the search or seizure was conducted without a warrant, the

burden shifts to the government to show that the search or seizure was reasonable.” (citing United

States v. McKneely, 6 F.3d 1447, 1453 (10th Cir. 1993)).



18 Here, the officers seized the firearms without a warrant. Thus, the People have the burden

to show that the police officers’ actions “‘were reasonable.” Berkley, 70 V.I. at 665 (quoting People

v. Prentice, 64 V.I. 79, 89 (Super. Ct. 2016)). “‘Reasonableness is an objective inquiry measured by

examining the totality of the circumstances surrounding the search and the nature of the search

itself.” People v. Pemberton, 2019 VI Super 118, { 7 (quoting Prentice, 64 V.I. at 89). “If the People

fail to satisfy this burden, the Court must suppress the evidence and exclude it from trial under the

‘fruit of the poisonous tree’ doctrine.” Id. (quoting Castillo v. People, 59 V.1. 240, 255-56 (2013)).



Ill. DISCUSSION



19 The Defendants raise two arguments for suppressing the firearms.’ First, they argue that the

officers lacked sufficiently-particularized, objective evidence of criminal activity. Second, they argue

that, because of the heightened expectation of privacy surrounding the home, the seizure violated

the Fourth Amendment. The People counter officers trained in identifying marijuana, who observe

objective evidence of marijuana use in an area known for criminal activity, supplies reasonable

suspicion for a brief investigatory stop. The People also argue, in the alternative, that reasonable



suspicion is not required when citizens use contraband in plain view. Each is addressed in turn.



> During the suppression hearing, Benjamin questioned the legality of Virgin Islands law which requires that firearms

be licensed. The Court declines to address this argument because Benjamin did not raise it in his initial motion and

failed to develop his argument with citations to legal authority. “[I]t is not the duty of any court of law to develop a

litigant's argument, especially if that party is represented by counsel.” Ventura, 2014 V.1. LEXIS 53 at *32 n.S (citing

United States v. Zannio, 895 F.2d 1, 17 (1st Cir. 1990)).

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A. Reasonable Suspicion to Justify an Investigatory Stop



710 Because the firearms were seized without a warrant, “the People must show that the

investigative stop and all subsequent events fit under an exception to the warrant requirement.” /d.

at J 9. An “investigative stop” is one of the recognized exceptions to the warrant requirement. Id.

(citing Terry v. Ohio, 392 U.S. 1 (1968) (remaining citation omitted)). “Brief investigative stops are.

.. valid when based on particularized objective facts, ‘in light of the officer’s experience,’ an officer

has a reasonable suspicion that ‘criminal activity is afoot.” Id. at J 10 (quoting Blyden v. People, 53

V.I. 637, 648 (2010)). For the stop to be justified, “the officer must ‘articulate something more than

an inchoate or unparticularized suspicion or hunch.” Id. (quoting People v. Cannergeiter, 65 V.1. 114,

122 (Super Ct. 2016)). “A ‘Terry’ stop... usually entails a vehicular stop, but [can also] encompass{[]

any attempt by a law enforcement officer to literally stop an individual to question the person.”

People v. Blake, 65 V.1. 13, 16 (Super. Ct. 2012). Thus, a Terry stop usually occurs in a public place or

roadway. “But if an officer restrains an individual’s liberty, ‘by means of physical force or show of

authority,’ Fourth Amendment protections attach.” Pemberton, 2019 VI Super 118 at J 18 n.3

(quoting Terry, 392 U.S. at 19 n.16).



11 “The concept of reasonable suspicion has not been ‘reduced to a neat set of legal rules.” /d.

at J 19 (quoting Cannergeiter, 65 V.I. at 131). And determining whether suspicion is reasonable “‘is



mn



often... imprecise ....”” /d. (citation omitted). But considerable deference is given to the officer's

determination, and reasonable suspicion “‘is a less demanding test than probable cause.” /d.

(citation omitted). The officer still must articulate particularized objective facts, however, that in



te



his experience support his belief “that criminal activity is afoot.” /d. at J 55 (citation omitted). And



“{w]hen reviewing for reasonable suspicion, courts consider facts of individual significance in the

totality of the circumstances, in light of the officer’s experience and specialized training.” Id. at J 20

(footnote omitted) (quoting People v. Murrell, 56 V.1. 796, 807 n.8 (2012)). Relevant factors include:

“(1) presence in high crime area; (2) ‘nervous, evasive or furtive behavior’; and (3) behavior that

conforms to an officers’ specialized knowledge of criminal activity.” Id. (brackets and citation

omitted).



712 Here, the Defendants correctly argue that the detection of smell alone cannot create



reasonable suspicion. As this Court has held, “‘a broadly diffuse and undistinguished marijuana odor

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will not automatically provide the necessary particularity to establish reasonable suspicion.”

Cannergeiter, 65 V.I. at 135 (quoting United States v. Ramos, 443 F.3d 304, 309, 47 V.I. 755, 760 (3rd

Cir. 2006)). But public use of marijuana continues to be illegal in the Virgin Islands and marijuana

use may still supply reasonable suspicion to conduct an investigatory stop. Cf People v. Looby, 68

V.I. 683, 698-99 (2018) (“[A]lthough a person in possession of an ounce or less of marijuana may

now avoid criminal penalization, the presence or absence of criminal penalization does not disturb

... constitutional frisk and seizure inquiry . .. because reasonable suspicion—the predicate for a

valid stop and frisk—does not depend on whether the People proved beyond a reasonable doubt

that a defendant is ‘guilty’; instead, reasonable suspicion is a matter of constitutional and

evidentiary concern turning on whether an officer reasonably concludes that evidence of



contraband or of a crime may be present.”). Moreover, individual factors, which may be innocent by



“ae ms



themselves if taken alone, when “‘taken together may warrant further investigation.” Pemberton,

2019 VI Super 118 at J 20 (brackets and citation omitted). And here, three individuals were in an

area where public and private space overlapped. The defendants were within the curtilage inches

from the public roadway, adjacent to a public sidewalk, and in public view. The officers initially

observed them from their vehicle in a public road while in plain view.



713 The Defendants contend that, once the officers did not find anyone smoking marijuana, the

officers should have moved on. But the Defendants’ arguments proceed from a fundamental

misunderstanding of Terry stops. The justification for an investigative stop is not that a crime has



ae



occurred but that “‘a person has committed or is about to commit a crime.” Id. at J 49 (emphasis

added) (citation omitted)). Here, Huertas had experience in identifying marijuana. The officers

drove by the house and observed a cloud of smoke above three individuals. It was nighttime. Shots

had been fired in the area the night before. As the officers approached, one of the individuals made

a furtive gesture, tossing something away. Once the officers approached, the firearms were

observed. They asked the Defendants if the Defendants had a license to possess the firearms and

did not receive an answer. Although the Defendants contend that the guns cannot supply reasonable

suspicion because the officers did not know if the guns were licensed, the totality of the

circumstances supports reasonable suspicion to perform an investigative stop and seize the



firearms and detain them until the officers could determine whether the Defendants possessed the

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firearms illegally.6 Under these circumstances, the Court cannot conclude that the officers acted

unreasonably.

B. Evidence was in Plain View



14 The People further argue that the seizure was reasonable because the firearm was in plain

view, a recognized exception to the warrant requirement. See Gumbs v. People, 64 V.I. 491, 508

(2016) (“[WJarrantless searches are constitutionally invalid—subject to well-established

exceptions to the warrant requirement. Two such exceptions are the ‘Terry’ stop and the ‘plain view’

doctrines.” (citation omitted)).



Under this doctrine, the warrantless seizure of incriminating evidence is permissible

when three conditions are met: (1) the officer did not violate the Fourth Amendment

in arriving at the place from which the evidence could be plainly viewed; (2) the item’s

incriminating character must be immediately apparent; and (3) the officer must have

a lawful right of access to the object itself.



Heath, 63 V.I. at 93 (citing Horton v. California, 496 U.S. 128, 136-137 (1990)). “‘The plain-view

doctrine is grounded on the proposition that once police are lawfully in a position to observe an

item firsthand, its owner's privacy interest in that item is lost.’”” Absent probable cause, however,

the officer cannot manipulate or disturb the object in order to discover its incriminating character.”

People v. Santana, 63 V.I. 25, 31 (Super. Ct. 2014) (quoting J/linois v. Andreas, 463 U.S. 765, 771

(1983)).



715 The Defendants counter that, because of heightened expectations of privacy for homes,

including the curtilage of the home, the plain view exception does not apply and their right to

privacy was violated.’ The curtilage of one’s home does generally enjoy the same protections as the

home. But police activity “that does not compromise any legitimate interest in privacy is nota search

subject to the Fourth Amendment.” United States v. Murray, 53 V.1. 831, 850 (D.V.I. 2010) (citing

Illinois v. Caballes, S43 U.S. 405, 408 (2005)). “[T]he Fourth Amendment protects people, not places.



6 Defendants argued that the seizure began when Huertas asked what they were doing. However, a “seizure does not

occur simply because a police officer approaches an individual and asks a few questions.” United States v. Murray, 53

V.1. 831, 852 (D.V.I. 2010) (quoting United States v. Crandell, 554 F. 3d 79, 84 (3d Cir. 2009)).



7 The People argued at the hearing that neither Defendant proved they had standing under the Fourth Amendment to

make their privacy argument. It is true that neither Defendant established that they resided at 34B Hospital Street.

However, the Defendants do not have the burden on a motion to suppress a warrantless search or seizure. Moreover,

the police report states that Joseph lived at the house. Thus Benjamin, who lives elsewhere, clearly was his guest.

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What a person knowingly exposes to the public, even in his own home or office, is not a subject of

Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351 (1967). Thus, not all private

property is shielded from the Fourth Amendment. Take, for example, the front door of a person’s

home. “Officers are allowed to knock on a residence's door or otherwise approach the residence

seeking to speak to the inhabitants just as any private citizen may.” Berkley, 70 V.I. at 666 (brackets

omitted) (quoting Simmonds, 53 V.I. at 558). And if the front door of one’s home can be approached

by officers without a warrant, officers can also approach the porch, which precedes the door,

without a warrant. Therefore, the Defendants’ privacy argument is rejected.



716 But more importantly, the officers had a right to be in the public road. Approaching the porch

did not violate the Fourth Amendment. And upon approaching, they shined a flashlight and

observed a firearm. While the officers could shine the flashlight for their own safety, the use of the

flashlight did not transform into a search. Cf Marshall v. United States, 422 F.2d 185, 189 (5th Cir.

1970) (“When the circumstances of a particular case are such that the police officer's observation

would not have constituted a search had it occurred in daylight, then the fact that the officer used a

flashlight to pierce the nighttime darkness does not transform his observation into a search.

Regardless of the time of day or night, the plain view rule must be upheld where the viewer is

rightfully positioned, seeing through eyes that are neither accusatory nor criminally investigatory.

The plain view rule does not go into hibernation at sunset.”). Huertas saw the firearm through the

cinder block with the aid of the flashlight. It was in plain view and the officers could have seized the

firearms for safety purposes. Cf Thomas v. People, 63 V.I.595, 609 n.5 (2015). Not as evidence of a

crime, however, cf’ Gumbs, 64 V.I. at 509, because possession of a firearm, in and of itself, is not a

crime. Possession of an unlicensed firearm is a crime. But once the officers asked the Defendants if

the firearms were licensed and learned that they were not, the officers could seize them at that

point. Thus, the plain view exception to the Fourth Amendment is also applicable here. See id.;

accord Thomas, 63 V.I. at 609 n.5.



IV. CONCLUSION



717 For the reasons set forth above, the Court finds that, under the totality of the circumstances,

the officers had reasonable suspicion to perform an investigative stop. Moreover, the firearms were



not concealed within the porch or the home. Instead, both officers saw them in plain view. and there

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is no expectation of privacy for items that can be seen by the public in plain view. Accordingly, the



motions to suppress will be denied. Orders consistent with this Opinion follow.



Date: March 10, 2020 : : o7



ROBERY A. peor



ATTEST: } Judge of the Supérior Court

TAMARA CHARLES

Clerk of th

if

By: id%