United States v. Bailey

UNITED STATES OF AMERICA v. VONNE BAILEY, Defendant.

Criminal Action No. 2020-0005

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

January 7, 2021

Attorneys:

Melissa P. Ortiz, Esq.,

St. Croix, U.S.V.I.

For the Government

Gabriel J. Villegas, Esq.,

St. Thomas, U.S.V.I.

For Defendant

MEMORANDUM OPINION

Lewis, Chief Judge

THIS MATTER comes before the Court on Defendant Vonne Bailey's ("Defendant") "Motion to Suppress" (Dkt. No. 16); the Government's Opposition thereto (Dkt. No. 18); the evidence and arguments presented at the suppression hearing; Defendant's "Supplemental Brief to Motion to Suppress" ("Supplement") (Dkt. No. 36); and the Government's Response thereto (Dkt. No. 41). For the following reasons, the Court will deny Defendant's Motion to Suppress.

I. BACKGROUND

On March 17, 2020, the Government filed an Information against Defendant charging him with Possession of Cocaine with Intent to Distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). (Dkt. No. 12).¹

On April 3, 2020, Defendant filed a motion seeking to suppress all physical evidence seized and statements made in this matter. (Dkt. No. 16). During the subsequent suppression hearing, the Government presented the testimony of two witnesses: Officer Jason Viveros ("Officer Viveros") from Customs and Border Protection ("CBP") and Special Agent Christopher McGrath ("Agent McGrath") from Homeland Security Investigations ("HSI"). Defendant testified on his own behalf. The following evidence emerged from the testimony of the three witnesses.²

On March 7, 2020, CBP officers contacted HSI special agents regarding an encounter with Defendant at the Henry E. Rohlsen Airport on St. Croix, U.S. Virgin Islands. (Hr'g Tr. at 31). Defendant was a passenger on an outbound commercial American Airlines flight destined for Miami, Florida. Id. at 9. Officer Viveros was conducting an inspection of checked luggage being loaded into the front luggage compartment of the aircraft. Id. at 20. According to Officer Viveros, when selecting baggage to search, he looks for anomalies such as smaller, carry-on bags that have been checked, bags emitting odors, and very heavy bags. Id. at 17. Officer Viveros testified that during the inspection he selected a black and purple duffel bag to search—removing it from the conveyer belt on the baggage ramp Id. at 18. This bag was relatively small in comparison to the other bags that were being loaded as checked luggage, which is why Officer Viveros selected it for inspection. Id.

Officer Viveros and one other CBP officer inspected the duffel bag and found a black towel inside. Id. at 20. Unfolding the towel revealed two vacuum sealed brick-shaped packages wrapped in plastic wrap that had a "glittery" substance covering them. Id. Based on his training andexperience, Officer Viveros suspected that these packages contained illegal contraband because narcotics are often transported in vacuum sealed packages. Id. at 21. Officer Viveros notified his supervisor, who created a small incision in the package. Id. at 22. A white powdery substance began to come out of the package. Id.

Officer Viveros and his supervisor then contacted an American Airlines representative. Id. Officer Viveros' supervisor showed the representative the duffel bag's baggage tag and informed the representative that they needed to see the individual who "matched" the baggage tag. Id. at 22-23. The representative located the seat number of the individual and directed Officer Viveros and his supervisor to enter the aircraft. Id. at 23. Inside of the aircraft, the representative approached Defendant—the individual to whom the baggage tag was matched—while Officer Viveros and his supervisor remained towards the back of the aircraft. Id. The representative asked Defendant to follow her to the back of the plane. Id. at 79. Officer Viveros then approached Defendant and asked for his identification to confirm that he was the individual to whom the duffel bag belonged. Id. at 24.

Defendant was escorted to the CBP secondary inspection area inside of the airport—a large room with three doors, a long window, two tables, and a counter. Id. at 25.³ In the secondary inspection area, Office Viveros asked Defendant questions regarding his luggage. Id. at 26. Defendant was asked: "Is this your bag?" and "Did you pack the bag yourself?" Defendant responded "yes" to these questions. Id. at 27. He was then asked: "Are you carrying anything for anyone?" to which Defendant replied "no." Id. After Defendant answered the three questions,Officer Viveros removed the items that were inside the duffel bag and conducted a field test using a test kit to identify the white powdery substance. Id. at 29. The field test yielded a positive result for cocaine. Id. at 30. After observing the positive result, Officer Viveros testified that he turned to Defendant and advised him that the contents of the brick tested positive for cocaine. Id. Defendant told Officer Viveros that it was supposed to be soap. Id. at 30. Officer Viveros replied that he did not know what it was supposed to be, but that it tested positive for cocaine. Id. at 30-31. Defendant reiterated that it was supposed to be soap—that he had bought it at "My Lord," which is a local variety store. Id. at 31.

According to Officer Viveros, Defendant "seemed relaxed" throughout the encounter. Id. at 28, 34. At the time of the questioning, Officer Viveros was wearing his uniform and his gun was visible in a holster on the right side of his waist. Id. at 26. Officer Viveros testified that he never took his gun out of the holster or yelled at Defendant during the course of the interaction. Id. at 27, 29. Officer Viveros further testified that there were between three and four officers present in the secondary inspection area; Defendant was not handcuffed; and Defendant was in the secondary inspection area for approximately two and a half hours. Id. at 34, 62-68. Defendant testified, on the other hand, that there were between four and five officers present in the secondary inspection area; he was handcuffed with his hands behind his back; and he was in the secondary inspection area for approximately three to four hours. Id. at 81-84.

HSI agents were called and notified about the situation. Id. at 32. According to Agent McGrath, he arrived at the airport approximately an hour and a half after getting called, and that when he arrived Defendant "seemed calm and relaxed." Id. at 65, 68. He testified that he spoke with the CBP officers and then placed Defendant in handcuffs. Id. at 67-68, 71. Agent McGrath then transported Defendant to the HSI office at St. George's Hill for processing. Id. at 67-68.According to Agent McGrath, once they arrived at the HSI office, he read Defendant his Miranda rights. Id. at 72. Defendant invoked his right to counsel; questioning immediately ceased; and HSI agents finished processing him. Id. Defendant testified that he was at St. George's Hill for approximately one hour to one hour and a half. Id. at 86-87.

Defendant argues that he was seized in violation of the Fourth Amendment; that his statements were taken in violation of Miranda; and that his statements were involuntary. (Dkt. Nos. 16, 36). In response, the Government argues that the search of Defendant's luggage was reasonable, lawful, and valid; Defendant was not in custody for purposes of Miranda; Defendant was not interrogated for purposes of Miranda; and that Defendant's statements were not involuntary. (Dkt. Nos. 18, 41).

II. APPLICABLE LEGAL PRINCIPLES

A. Search and Seizure

The Fourth Amendment prohibits government agents from conducting unreasonable searches and seizures. United States v. Hyde, 37 F.3d 116, 118 (3d Cir. 1994) (citing Harris v. United States, 331 U.S. 145, 150 (1947)). Whether a search and seizure is reasonable "depends upon all of the circumstances surrounding the search and seizure and the nature of the search and seizure itself." United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). Although a warrantless search is generally considered presumptively unreasonable, the courts recognize exceptions to the warrant requirement in "certain limited situations." Hyde, 37 F.3d at 118 (citing Horton v. California, 496 U.S. 128, 133 (1990) and Montoya, 473 U.S. at 537); see also United States v. Baxter, 951 F.3d 128, 132, 72 V.I. 1183 (3d Cir. 2020). "Border searches are one such exception." Id. The government's "authority to conduct routine searches and seizures at the border, without probable cause or a warrant," for the purpose of levying duties and intercepting contrabandis well-recognized. Montoya, 473 U.S. at 537 (citing United States v. Ramsey, 431 U.S. 606, 616-617 (1977)).

Two conditions must be met for the border exception to apply. First, the search or seizure must occur at the "physical boundaries of the nation" or its "functional equivalent." United States v. Caminos, 770 F.2d 361, 364 (3d Cir. 1985) (citing Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973)). The Third Circuit has examined the issue of whether the Henry E. Rohlsen airport is the "functional equivalent" of a national border for purposes of a Fourth Amendment analysis, with respect to persons and items leaving St. Croix and entering the continental United States. Hyde, 37 F.3d at 117. Finding the government's interest "in warrantless searches without probable cause at this 'internal' border to be little different from its interest in such searches at its international borders," the Hyde Court held "that routine customs searches of persons and their belongings without probable cause as they leave the Virgin Islands for the continental United States are not unreasonable under the Fourth Amendment." Id. at 117, 122. As such, with respect to individuals traveling from St. Croix to the continental United States, the Henry E. Rohlsen airport is the "functional equivalent" of an international border for purposes of a Fourth Amendment analysis.

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