People v. Graham

2020 VI SUPER 023 U

PEOPLE OF THE VIRGIN ISLANDS, PLAINTIFF, v. WAYNE GRAHAM, DEFENDANT.

SX-18-CR-130

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

February 11, 2020

CHARGE(s):

POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE

19 V.I.C. §604(a)(1)&(b)(1)(A)

POSSESSION OF DRUG PARAPHERNALIA

19 V.I.C. §630(b)& 593(15)(I)&(J)&(L)

Appearances:

Amelia B. Joseph, Esq.

Territorial Public Defender

For Wayne Graham

Eric Chancellor, Esq.

Assistant Attorney General

Department of Justice

For the People

MEMORANDUM OPINION

WILLOCKS, Presiding Judge

¶1 THIS MATTER is before the Court on the Defendant's Motion to Suppress (hereinafter "Motion") filed on January 24, 2019. The People filed a Motion in Opposition (hereinafter "Opposition") on March 19, 2019.

BACKGROUND

¶2 On May 12, 2018, at approximately 8:00 p.m. the Defendant was near the Pan Am Pavilion area in Christiansted town waiting for a reggae band to perform. (Mot. at 1.) As the Defendant was waiting he started to feel sick, so he decided to sit down on a slab of concrete, where he began to hold his stomach. (Id.) Officer Felicien, who has narcotics training as well as patrolled high-crime areas due to being a member of the special operations bureau was on duty patrolling the Pan Am Pavilion areas. (Tr. at 13-14.) The officer observed the Defendant sitting, with his head facing downwards, his hands in his laps, and riddling his fingers. (Id. at 15.) According, to the officer's testimony the Defendant's behavior was suspicious given that the location is a high-crime area where drugs are commonly sold. (Id. at 16.) As a result, the officer began to walk in the direction of the Defendant. (Id. at 17.) When the Defendant noticed the officer walking towards him, he quickly discarded an unknown item. (Id. at 18.) As the officer got closer, he noticed that the Defendant appeared nervous and was leaning forward with his forearms on his thighs as if he was concealing something with his pelvic. (Id. at 19; see also Probably Cause Fact Sheet dated May 14, 2018.) Once Officer Felicien approached the Defendant and asked, "if he was okay" at which the Defendant replied "yes". (Tr. at 19.) Officer Felicien stated that he then asked the Defendant to sit up to ensure that the Defendant was in fact okay. (Id.) The Defendant hesitated and only slightly sat up after the second request. (Id.) As a result, the Officer asked the Defendant a third time to sit all the way up, to which he then complied. (Id.) Once the Defendant sat up the officer noticed a clear plastic baggie on his lap. (Id.) Officer Felicien stated that because the baggie was similar to the kind commonly used to distribute drugs he asked the Defendant to stand up and informed him that he was going to pat him down. (Id. at 20.) As Officer Felicien began to pat the Defendant's left front pants pocket he felt what he believed to be several plastic artistic vials. (Id. at 21.) Officer Felicien asked the Defendant "[w]hat's in your pocket" and the Defendant replied, "I ain't gon lie to you, I selling (sic)." (Id.) Officer Felicien then continued to pat-down the Defendant when he felt a soft round item in his right pants pocket. (Id. at 22.) The Defendant then began to get fidgety and stated: " [i]t's just weed". (Id. at 23.) The officer then patted down the Defendant's back pockets where he discovered a brown paper bag that contained more vials with a leafy green substance and a blade wrapped in a napkin. (Id.) The Defendant was also wearing a backpack, which the officer also patted and then asked the Defendant to remove after feeling what he believed to be several artistic vials. (Id.) Once the Defendant removed the backpack the officer looked inside of it and discovered that it did contain artistic vails with a green leafy substance. (Id.)

STANDARD OF REVIEW

¶3 The Fourth Amendment is applicable in the Virgin Islands pursuant to Section 3 of the Revised Organic Act of 1954, as amended, it guarantees the right of the people to be free from unreasonable searches and seizures.¹ Generally, for a search or seizure to be reasonable under the Fourth Amendment, it must be effectuated with a warrant based on probable cause,² unless it is justified by "a specifically established and well-delineated exception to the warrant requirement."³

¶4 The burden of proof is on the defendant who seeks to suppress the evidence.⁴ However once the defendant establishes a basis for his motion by showing that the search or seizure was conducted without a warrant, the burden shifts to the government to show that each individual act constituting a search or seizure under the Fourth Amendment was reasonable.⁵

¶5 The Fourth Amendment analysis typically proceeds in three stages. First, the Court determines whether a Fourth Amendment event, such as a search or a seizure, has occurred.⁶ Then, the Court must consider whether the search or seizure was reasonable.⁷ If the search or seizure was unreasonable, the Court must determine whether the circumstances warrant suppression of the evidence.⁸

DISCUSSION

¶6 The Defendant argues that Officer Felicien stop and search was unconstitutional because the officer lacked reasonable suspicion or probable cause. (Memo. of Law 3.) Therefore, "the alleged cocaine, marijuana, and drug paraphernalia" that was obtained as a result of the illegal stop and search must be suppressed. (Id.)

¶7 In contrast, the People of the Virgin Islands (hereinafter "People"), contend that due to Officer Felicien training he believed that the item the Defendant discarded was drugs packaged for sale. (Opp'n. at 2.) Therefore, "for his safety and because he had reasonable grounds to believe that illegal activity was being conducted the officer patted down the Defendant." (Id.) "During the pat-down, the officer felt several plastic artistic vials in the Defendant's pocket", which gave him probable cause to believe that criminal activity was afoot. (Id.)

A. Investigatory Stop

¶8 An investigatory stop brief seizures by police officers that fall short of traditional arrests—is a well-established exception to the Fourth Amendment warrant requirement.⁹ Under the Fourth Amendment, an officer can "conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot."¹⁰ The officer may stop a suspect on the street and conduct a limited search, i.e. a frisk, of the suspect without probable cause:

where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety.¹¹

¶9 An officer has reasonable suspicion to conduct an investigatory stop when he can point to "specific and articulable facts which, taken together with rational inference from those facts, reasonably warrant intrusion."¹² The officer must "articulate something more than an inchoate and unparticularized suspicion or a hunch."¹³ However, because calculating whether an officer has reasonable suspicion is an imprecise judgment the courts give considerable deference to police officer's determination of reasonable suspicion.¹⁴ Therefore in determining whether there was reasonable suspicion courts "must consider the totality of the circumstances, in light of the officer's experience."¹⁵ This includes the officer's specialized knowledge, investigative inferences, personal observation of suspicious behavior, and information received from a reliable source."¹⁶

¶10 The Court must now determine whether a violation under the Fourth Amendment occurred. According to the Defendant he was seized within the meaning of the Fourth Amendment when Officer Felicien ordered him to take off his backpack and searched it in the presence of two other officers without his consent. (Mot. at 2.) However, in this jurisdiction, it has firmly been established that a seizure under the Fourth Amendment occurs when a reasonable person would not feel free to leave or terminate an encounter with the police.¹⁷ The Supreme Court has also held that a seizure under the Fourth Amendment requires a show of authority by the police and submission to such authority by the seized.¹⁸ Whether the seized conduct constitutes submission depends on the totality of the circumstance.¹⁹

¶11 Here, the investigatory stop originated when Officer Felicien approached the Defendant to inquiry if he was okay because he was bent over with his hands on his pelvic area. (Tr. at 19.) When questioned by the officer the Defendant stated that he was okay but continued to sit bent over with his hands covering his pelvic area. (Id.) At the hearing, the officer testified that he initially approached the Defendant after seeing him sitting with his hands in his lap and fiddling his fingers. (Id. at 15.) According to the officer, this behavior was suspicious to him because individuals are known to roll marijuana cigarettes in that area. (Id. at 16.) As a result, the officer started walking towards the Defendant and that's when he appeared to quickly discard something. (Id. at 18.) Once the officer approached the Defendant he stated that he asked him to sit up, to which the Defendant did not respond. (Id. at 19.) As a result, the officer asked the Defendant to sit up again. (Id.) However, it was not until the officer asked a third time that the Defendant sat up. (Id.) The Court finds that at this point a seizure under the Fourth Amendment had occurred. As the officer's persistent instruction for the Defendant to sit up after he failed to comply the first two request was a sufficient show of authority to constitute a seizure under the Fourth Amendment. Given, that a reasonable person would not feel free to terminate...