United States v. Wrensford

UNITED STATES OF AMERICA and PEOPLE OF THE VIRGIN ISLANDS v. ELVIN WRENSFORD, et al., Defendants.

Criminal Action No. 2013-0003

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

December 22, 2019

Attorneys:

Alphonso G. Andrews, Jr., 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 following the Court's Memorandum Opinion concluding, inter alia, that the suppression hearing in this case should be reopened to receive evidence on the issue of whether the inevitable discovery doctrine applies to the DNA sample collected from Defendant Elvin Wrensford ("Wrensford" or "Defendant") following his de facto arrest ("August 15 Opinion") (Dkt. No. 370 at 20-29); the testimony at the reopened suppression hearing held on September 17, 2019; the parties' respective supplemental memoranda filed on October 15, 2019 (Dkt. Nos. 389, 390); and the parties' respective supplemental replies filed on October 25, 2019 (Dkt. No. 391, 392).¹ For the following reasons, the Court finds that the Government has established by a preponderance of the evidence that the inevitable discovery doctrine applies to the collection of Wrensford's DNA sample and that the DNA sample was therefore admissible at trial. In view of the Court's conclusion in this regard, the Court will reinstate Wrensford's conviction on the charge of possession of a firearm with an obliterated serial number (Count 3). See Dkt. No. 370 at 6-7, 39.

I. BACKGROUND

A detailed statement of the underlying factual and procedural background is set forth in the Court's August 15 Opinion. (Dkt. No. 370 at 2-7). The Court found, inter alia, that, while the inevitable discovery doctrine may apply to Defendant's DNA sample, the Government could not meet its burden of proof on that issue on the then-current record. Id. at 13-20. The Court further found that a reopening of the suppression hearing was warranted under the circumstances presented. Id. at 20-29. Thereafter, the Court reopened the suppression hearing to determine the sole issue of whether the Government can demonstrate by a preponderance of the evidence that the police, pursuant to routine Virgin Islands Police Department ("VIPD") procedures, would have inevitably obtained Defendant's DNA sample. This opinion contains the Court's findings on that issue.

A. The Reopened Suppression Hearing

At the reopened suppression hearing, the Government offered the testimony of VIPD Lieutenant Richard Matthews ("Lt. Matthews") and Captain Dino Herbert ("Capt. Herbert"). Thedefense did not present any witnesses. The following facts emerged from the record established at the suppression hearing.

Lt. Matthews testified that he has been employed with VIPD for approximately 25 years. (Hr'g Tr. 22). He was assigned to the Investigation Bureau within VIPD from 1997 to 2015. Id. His duties while assigned there were to investigate various crimes, including homicides. Id. According to Lt. Matthews, VIPD had a DNA collection practice that it applied to situations where the police had identified a murder suspect and a murder weapon. Id. at 30-31. This practice, which was in place prior to and including 2012, id. at 33-34, was to "swab [] the murder weapon and try to get the DNA from the suspect and compare the two," id. at 31, 33-34.

Lt. Matthews further explained that the forensics team swabs physical evidence, such as a murder weapon, for DNA with or without a murder suspect identified. Id. at 43-46, 51. Forensics reports are, as "standard practice," generated independently by the forensics team, but the reports are shared with VIPD investigators. Id. at 46-51. He stated that the practice regarding the murder suspect is to locate the suspect and request consent for a DNA swab. Id. at 31. If VIPD asked for, but could not obtain, a suspect's consent, VIPD would seek a warrant to obtain the suspect's DNA. Id. If the weapon was recovered and there was probable cause to obtain a DNA warrant, but the suspect was not in custody, VIPD "would immediately start seeking that [DNA] warrant." Id. at 33. Once the DNA warrant was obtained, VIPD practice is to commence a search for the suspect through several methods: entering the DNA warrant in the National Crime Investigation Center database ("NCIC"); distributing notices to VIPD officers island-wide and to airports; and posting flyers with the suspect's photo. Id. at 34-36.

Lt. Matthews testified that VIPD's DNA collection practice is not in writing. Id. at 38. Lt. Matthews learned this practice from his supervisors "from the time [he] entered the InvestigationBureau. Id. at 38. He testified that it was "standard practice," but could not identify a specific date on which he was taught the practice. Id. at 39. According to Lt. Matthews, at some point during 1997, three of his supervisors—Sergeant Ramirez, Captain Edwards, and Detective Jose Silva—showed him "what the standard practices were." Id. He did not know where his supervisors learned the practices. Id. at 39. He confirmed that he did not learn them from a police procedure manual and that he never received outside DNA collection practice training. Id. at 39-42.

Lt. Matthews also testified that, on May 10, 2012, he was the case agent assigned to the investigation of a homicide and that he reported to the scene of the crime. Id. at 23. According to Lt. Matthews, witnesses at the scene identified Wrensford as the shooter and he was apprehended within two miles of the crime scene less than two hours after the incident. Id. at 25-27. The vehicle identified at the scene as being involved in the incident was also found within two miles of the location of the homicide. Id. at 25, 29. Later, police officers searched the area near where Wrensford was found and discovered a firearm in close proximity. Id. at 28-29. Police subsequently analyzed the weapon and determined that the firearm matched the casings at the scene, casings found in the bed of the vehicle, and a bullet recovered from the body of the deceased. Id. at 29. According to Lt. Matthews, the police concluded that the firearm was the murder weapon and swabbed it for DNA. Id. at 30. Lt. Matthews testified that he was the officer that requested consent from Defendant to obtain his DNA. Id. at 31. During this interaction, Lt. Matthews told Wrensford that if he did not consent, Lt. Matthews would obtain a warrant to collect Wrensford's DNA. Id. Wrensford consented and Lt. Matthews obtained the buccal swab. Id.

Lt. Matthews further testified that, even if Defendant had not been available to consent at the police station on that night, VIPD would have followed the next step in the procedure. Based on the situation presented—that "the gun would still have been recovered . . . [and Defendant] wasin close proximity [to the location where the weapon was found]—Lt. Matthews confirmed that "the next step" would have been to obtain a DNA warrant for Defendant. Id. at 32-33. According to Lt. Matthews, Defendant would have been located subsequent to obtaining the DNA warrant because Defendant was known to VIPD and Lt. Matthews ascertained where Defendant's "girlfriend had lived, and [Lt. Matthews] went to her house[,] [s]o [Lt. Matthews] kn[e]w [he] could have gotten to know [Defendant's] whereabouts and where he frequents and even his job, if he had one." Id. at 35-36.

Capt. Herbert testified that he has worked at VIPD for over twenty-seven years and was assigned to the Investigation Bureau from 2007 to approximately 2016. Id. at 52. From approximately 2009 through 2012, he was the supervisor of the homicide division of the Investigation Bureau. Id. at 53. Capt. Herbert testified that in 2012, VIPD had a practice in place concerning DNA collection "where you have a murder suspect, and . . . where you have a firearm that has been recovered and you've determined was used in the murder." Id. at 54. He further explained that VIPD's policy is to link a suspect in custody to the recovered firearm through asking the suspect for consent to obtain a DNA swab. Id. If the suspect did not consent, the policy is to submit an affidavit to court to obtain a DNA warrant. Id. In circumstances where the suspect is not in custody, VIPD practice is to obtain a DNA warrant and attempt to locate the suspect. Id. According to Capt. Herbert, in order to locate the suspect, VIPD practice is to enter the DNA warrant into the NCIC system and issue a "Be on the lookout" or "BOLO" warning to points of travel. Id. at 55-57.

Capt. Herbert also described the method by which he learned the practice regarding obtaining DNA from a suspect. He testified that the practice was in place during his tenure in the Investigation Bureau, including in 2012. Id. at 55, 60-61. He learned the practice from hissupervisors at VIPD and through independent study and training. Id. at 55, 58-62. He noted that when he joined the Investigation Bureau in 2007, Captain Edwards instructed him in the DNA collection protocol, which had been in place prior to his tenure. Id. at 61-63. He could not confirm whether the "protocol" was in writing. Id. at 55.

B. The Parties' Supplemental Briefing

Defendant asserts in his supplemental briefing that his DNA was taken in violation of his Fourth Amendment right to be free from illegal searches and seizures. Defendant argues that his DNA was recovered without a warrant, probable cause or reasonable suspicion to justify arrest. (Dkt. No. 389 at 9). He contends that the Government has not met its burden to prove that VIPD would have inevitably obtained his DNA. Id. at 10. According to Defendant, the Government did not prove that VIPD had routine procedures in place, "that those procedures were followed, and that the following of those procedures would have inevitably led to the discovery of [Defendant's DNA evidence]." Id. at 13. Defendant asserts that the Court should not credit the testimony of Lt. Matthews...