United States v. Flavius

1

UNITED STATES OF AMERICA v. BERNARD FLAVIUS, Defendant.

CRIMINAL ACTION No. 2022-0004

United States District Court, D. Virgin Islands, St. Croix Division

May 28, 2023

Evan Rikhye, Esq., St. Croix, U.S.V.I. For the United States

Gabriel J. Villegas, Esq., St. Croix, U.S.V.I. For Defendant

MEMORANDUM OPINION

WILMA A. LEWIS DISTRICT JUDGE

THIS MATTER comes before the Court on Defendant Bernard Flavius' (“Defendant”) “Motion to Suppress” (Dkt. No. 32); the Government's Opposition (Dkt. No. 35); Defendant's Supplemental Brief (Dkt. No. 48); the Government's Supplemental Brief (Dkt No. 49); Defendant's Response to the Government's Supplemental Brief (Dkt. No. 52); the Government's Response to Defendant's Supplemental Brief (Dkt. No. 53) and the evidence and arguments presented at the suppression hearing. For the reasons discussed below, the Court will grant in part and deny in part Defendant's Motion to Suppress. Specifically, the Court will grant Defendant's request to suppress his statement claiming ownership of the marijuana plants based on a Fifth Amendment violation, and will deny his Fourth Amendment challenge seeking to suppress the marijuana plants and the aerial photographs of Defendant's property.

I. BACKGROUND

On March 7, 2022, the Government filed an Information against Defendant. (Dkt. No. 12). The Information charged Defendant with: (1) knowingly and intentionally possessing with intent to distribute more than 100 marijuana plants, a Schedule 1 controlled substance in violation of Title 21, United States Code, Sections 841(a)(1) & (b)(1)(B)(vii) (Count 1); and (2) knowingly using and maintaining any place for the purpose of manufacturing and distributing marijuana, a Schedule 1 controlled substance in violation of Title 18, United States Code, Sections 856(a) & (b) (Count 2). Id.

Defendant filed the instant Motion to Suppress, requesting that the Court suppress the physical evidence-206 seized marijuana plants and aerial photographs taken of his property. (Dkt. Nos. 32 at 2). Defendant argues that 1) a May 21, 2021 Crime Stoppers tip was stale and insufficient to establish probable cause and 2) the aerial surveillance of Defendant's property violated his rights under the Fourth Amendment. Id. at 1. Defendant also seeks to suppress his statement claiming ownership of the marijuana plants as violating Miranda and/or as fruit of the poisonous tree under the Fifth Amendment. Id. at 2.

At the evidentiary hearing on Defendant's Motion to Suppress, the Government presented the testimony of Task Force Officer Moses President (“TFO President”), and Defendant testified on his own behalf. The following facts emerged from the record established at the suppression hearing.^[1] TFO President testified that that he was forwarded a Crime Stoppers tip on January 23, 2022 that an illegal marijuana cultivation operation had been established in Estate Whim near the Police Athletic League (“PAL”) building in Frederiksted, St. Croix. (Dkt. No. 46 at Tr. 3:3-Tr. 3:8).^[2] On January 24, 2022, TFO President and Task Force Officer David Wyrzykowski (“TFO Wyrzykowski”) visited the area. Id. at 8:10-8:13. Upon parking in the public area near PAL, TFO President and TFO Wyrzykowski walked along Defendant's fence line which bordered a basketball court. Id. at 9:14-10:12. TFO President testified that when he “looked over the fence,” from a corner, he saw what appeared to be marijuana plants. Id. at 10:19-10:21. When he looked over the fence again, he saw another set of small marijuana plants in cups at the back of the shed area. Id. at 11:4-11:6. After observing the plants, TFO President said that he and TFO Wyrzykowski left the area. Id. at 11:10.

On January 26, 2022, TFO President conducted aerial surveillance of the property using an airplane from the DEA's Air Wing Unit. Id. at 12:5-12:6. During the surveillance, TFO President observed the property at approximately 2,000 ft. in the air using a camera with a zoom lens. Id. at 14:10-14:13; 15:24-15:25. TFO President later determined that the address of the property he observed was #59-F Whim and that Defendant resided at the home located there. Id. at 18:1-18:5; 28:24-29:1.

TFO President sought and received a warrant to search Defendant's property.^[3] Id. at 18:20-18:21. On February 7, 2022, law enforcement executed the search warrant. Id. at 19:25-20:1.

According to TFO President, once “the area was cleared and deemed safe by the entry team,” he approached Defendant and his wife on the outside of the house. Id. at 20:10-20:13. TFO President recalled introducing himself to the couple and handing Defendant a copy of the warrant. Id. at 20:13-20:18. TFO President testified that Defendant, in the presence of his wife, then made a “spontaneous utterance”-without any prompting by TFO President-stating that he owned the marijuana plants located on the property. Id. at 20:19-20:23. TFO President further stated that he did not ask Defendant any questions following Defendant's “spontaneous utterance.” Id. at 20:24-21:2.

Defendant testified on his own behalf at the hearing. He admitted to growing marijuana plants on the property beginning sometime in 2021. Id. at 44:18-45:5. Defendant recalled that, on the morning the search was executed, Defendant saw police cars approaching. Id. at 45:23-46:1. He testified that, “When [I] open[ed] the door, the man that [was] driving put [his] gun on me, so I [placed] my hands up.” Id. at 46:2-46:4. When asked by counsel whether he saw TFO President that morning, Defendant replied in the affirmative, recalling, “he [came] to me, he asked me if ... [I] live there[.] I [told] him, yes.” Id. at 46:5-46:8. Defendant also testified that he had known TFO President for a “long time” because TFO President investigated the murder of Defendant's son, was in his home during the investigation, and Defendant is married to TFO President's cousin. Id. at 46:14-46:24. Defendant then testified that TFO President took him and Defendant's wife near the garage and asked him, “Who is planting [the marijuana] here?” Id. at 46:25-47:6. Defendant said he told TFO President he was responsible for planting the marijuana, to which TFO President said, “Man, I didn't know it's you.” Id. at 47:6-47:7. In response, Defendant said, he responded, “Well, it's me that grow it.” Id. at 47:7-47:8. Defendant testified that TFO President did not advise him of his rights during the interaction. Id. at 47:9-47:10.

Following the hearing, the Court ordered the parties to simultaneously brief certain issues raised at the hearing.^[4] After filing their respective Supplemental Briefs, each party submitted a Reply stating they had no further response to the opposing party's Supplemental Brief. (Dkt. Nos. 52 and 53).

II. DISCUSSION

A. Fourth Amendment Challenge

Defendant seeks to suppress the 206 marijuana plants that law enforcement officers recovered on his property and aerial photographs taken by TFO President arguing that: 1) the May 21, 2021 Crime Stoppers tip-that was investigated by TFO President on January 23, 2022-is stale and was insufficient to establish probable cause for the search warrant executed on his property; and 2) the warrantless aerial surveillance conducted on January 26, 2022 was in violation of the Fourth Amendment because the Government has not provided evidence that the plane was within “public navigable air space” when TFO President observed and photographed Defendant's property. (Dkt. No. 48 at 2-7). In his Supplemental Brief, Defendant also argues that the physical evidence must be suppressed based on the Court's decision in United States v. Somme, Criminal Action No. 2019-0018, 2022 WL 4365856 (D.V.I. Sept. 20, 2022). Id. at 6-7.

In its Supplemental Brief, the Government argues that: 1) the issue of whether the Crime Stoppers tip is stale is moot because TFO President corroborated the information during his investigation and plain view observation of the marijuana plants on the property; and 2) the aerial surveillance was not a search within the meaning of the Fourth Amendment. (Dkt. No. 49). With regard to the aerial surveillance, the Government maintains that Defendant did not have a subjective expectation of privacy because the marijuana was unconcealed and located in an open field on his property. Id. at 3. The Government further argues that the aerial flight over Defendant's property was 1) conducted within navigable air space consistent with Federal Aviation Administration (“FAA”) regulations; and 2) unlike the situation in Somme, TFO President testified at the suppression hearing that the aircraft used to conduct the aerial surveillance was flying at approximately 2,000 ft. Id. at 8.

1. Crime Stoppers Tip

a. Applicable Legal Principles

“The threshold requirement for [the] issuance of a warrant is probable cause.” United States v. Ritter, 416 F.3d 256, 262 (3d Cir. 2005). To conclude that an application for a search warrant is supported by probable cause, the test is simply whether there is a “fair probability that contraband or evidence of criminal activity will be found in the particular place” to be searched. United States v. Zimmerman, 277 F.3d 426, 432 (3d Cir. 2002) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

b. Analysis

Defendant contends that the anonymous Crime Stoppers tip is insufficient to establish probable cause. (Dkt. No. 48 at 2-5). As a basis for his challenge, Defendant argues that: 1) the tip is stale because there was an almost nine-month gap between the reporting of the tip and the associated follow-up investigation by TFO President and issuance of the search warrant; and 2) certain details provided in the tip could not be corroborated by TFO President during his independent investigation.^[5] Id. In...