224 F.3d 213 (3rd Cir. 2000), 00-3091, United States v Ubiles

Docket Nº:00-3091
Citation:224 F.3d 213
Party Name:UNITED STATES OF AMERICA, v. KAHLI[*] UBILES, Appellant
Case Date:August 17, 2000
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 213

224 F.3d 213 (3rd Cir. 2000)

UNITED STATES OF AMERICA,

v.

KAHLI[*] UBILES, Appellant

No. 00-3091

United States Court of Appeals, Third Circuit

August 17, 2000

Argued: June 15, 2000

On Appeal From the District Court of the Virgin Islands Division of St. Thomas and St. John District Judge: Honorable Thomas K. Moore, (D.C. Crim. No. 98-cr-00143)

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Counsel for Appellant: PAMELA L. WOOD, ESQUIRE (ARGUED) Office of Federal Public Defender P.O. Box 1327 St. Thomas, United States Virgin Islands 00804-1327

Counsel for Appellee: JAMES A. HURD, JR., ESQUIRE United States Attorney KIM L. CHISHOLM, ESQUIRE (ARGUED) Assistant United States Attorney 5500 Veterans Drive, Suite 260 Charlotte Amalie, United States Virgin Islands 00802-6424

Before: BECKER, Chief Judge, ALDISERT, Circuit Judge and O'KELLEY, District Judge.[**]

OPINION OF THE COURT

BECKER, Chief Judge.

Kahli Ubiles unlawfully possessed an unregistered firearm while attending a crowded street festival in St. Thomas. Acting on an anonymous tip that Ubiles possessed a gun, local authorities also in attendance stopped and frisked him. The authorities' "Terry" search proved fruitful, and they seized the firearm and arrested him. The United States subsequently filed an indictment against Ubiles, who unsuccessfully moved to have the gun suppressed on the ground that it was seized unlawfully. A jury acquitted Ubiles of a federal charge and convicted him of the possession of an unregistered firearm, in violation of V.I. CODE ANN. tit. 14, S 2253(a). This appeal followed.

Holding that the search and seizure of Ubiles was unlawful, we will reverse. The Terry stop in this case was not supported by reasonable suspicion "that criminal activity [was] afoot . . . ." Terry v. Ohio, 392 U.S. 1, 30 (1968). First, it is not a crime to possess a firearm in the Virgin Islands--even when standing in a crowd. Second, the anonymous tipster who approached the authorities had said nothing that would indicate that Ubiles possessed the gun unlawfully (e.g., without registration); that he was committing or about to commit a crime; or that he posed a threat to the officers or anyone in the crowd. Therefore, the stop and subsequent search were unjustified because the precondition for a Terry stop was not present in this case. In reaching this conclusion, we reject the Government's contention that Ubiles had a lessened expectation of privacy because he was standing in a crowd. We will therefore vacate the conviction and remand for further proceedings.1

I.

The J'ouvert Carnival is a celebration that periodically takes place in the U.S.

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Virgin Islands. The carnival celebrates the sunrise, and hence begins before daybreak. J'ouvert festivities last until noon and are typically crowded and boisterous. Hundreds if not thousands of revelers dance in the streets and march in a parade, while local bands lead the procession playing music from a flatbed truck. J'ouvert celebrants often consume a great deal of alcohol.

Virgin Islands Territorial Court Deputy Marshal Franklin Leonard attended the April 30, 1998 J'ouvert Carnival on the Island of St. Thomas. He was off-duty at the time, and was joined by a female friend and two on-duty police officers, Virgin Islands Police Chief Americus Jackson and Virgin Islands Deputy Police Chief Jose Garcia. At approximately 9:00 a.m., an elderly gentleman approached Deputy Marshal Leonard and the officers. Without identifying himself, he told Leonard that there was a young man in the crowd standing on the sidewalk near the sea plane shuttle buildings who had a gun in his possession. The anonymous informant pointed toward the man in question and described his clothing and appearance. The informant did not explain how he knew that the man had a gun. He also did not describe, at the time, anything suspect about the gun or anything unusual or suspicious about the man or his behavior.

Deputy Marshal Leonard, followed by the two officers (but not the tipster), walked over to the young man--the defendant in this case--Kahli Ubiles. According to testimony elicited from Leonard at the suppression hearing, Ubiles exhibited no unusual or suspicious behavior when Leonard approached him or when Chief Jackson began talking to him. Leonard also testified that he could not tell when he approached Ubiles whether Ubiles was carrying any type of weapon. Leonard nevertheless conducted a pat- down search of Ubiles and found in Ubiles's possession a cutlass (or machete) and a loaded gun. The firearm was a Jennings Long Rifle .22 caliber semi-automatic pistol, model J-22. The pistol's serial number allegedly had been obliterated, and evidence adduced at Ubiles's subsequent criminal trial revealed that the firearm was unregistered.

The United States subsequently charged Ubiles with possession of a firearm with an obliterated serial number in violation of federal law, 18 U.S.C. SS 922(k), 924(a)(1)(B); possession of an unregistered firearm in violation of Virgin Islands law, V.I. CODE ANN. tit. 14, S 2253(a); and escape from custody in violation of Virgin Islands law, V.I. CODE ANN. tit. 14, S 661. A federal grand jury returned a three- count indictment on these charges. After the indictment was obtained, the Government successfully moved to dismiss the escape from custody charge.

Before trial, Ubiles moved to suppress certain evidence, including the firearm seized by Deputy Marshal Leonard. At a hearing on this motion, the Government presented no evidence suggesting that Leonard or Officers Jackson and Garcia knew anything about Ubiles other than the information with which the anonymous informant had provided them. Leonard stated that no one had told them anything that would lead them to believe (1) that Ubiles posed a danger to himself, the other officers, or the crowd; (2) that Ubiles had brandished the gun or machete in his possession; or (3) that Ubiles did not have a license to carry the gun in his possession. See App. at 71-73. Leonard testified merely that he was "very concerned about the situation" and therefore stopped and frisked Ubiles. Id. at 65.

Based on this testimony, the District Court denied Ubiles's motion to suppress the J-22 seized from his person. In denying the motion to suppress the firearm, the District Court explained:

It's the night of--I think I can take judicial notice of-- can be some heavy drinking. People are tired.

So the kind of information that was given by the older gentleman to Marshal Leonard, that he had just -- pointing out

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the gentleman, describing the clothes that the defendant was wearing, had a gun, was enough reasonable suspicion for the law enforcement officers, the Chief Deputy, Chief, and Marshal Leonard to go over and question him in an investigative style. Prudent thing to do.

And certainly it turned out to be very prudent in this case for the officers' protection while they were questioning the individual, to pat him down.

And that pat down produced [the J-22].

Id. at 104.

Ubiles's case proceeded to trial. The Government introduced the J-22 into evidence and presented the testimony of Deputy Marshal Leonard; Brenda Mason, a Firearms Certification Officer with the U.S. Virgin Islands; and Ronald Lockhart, the anonymous informant (whose identity the Virgin Islands authorities had discovered shortly before trial). Leonard testified about seizing the weapon from Ubiles. Ms. Mason testified that after a thorough records search of St. Thomas and St. John files she had not found a firearm license for Ubiles's gun. She also stated that the Firearms Certification Officer for the District of St. Croix had found no such record. Lockhart told the jury that at approximately 8:30 a.m., on April 30, he saw something that looked like a gun pass from another man to Ubiles. He testified that there were three to five minutes between the time he saw the gun and the time he spoke to the officers. However, Lockhart had not related these details to the officers when he gave his tip. He had told Leonard only that he had observed a man with a gun and described and pointed to that man for the officers.

The jury found Ubiles not guilty of the federal charge-- possessing a firearm with an obliterated serial number--but guilty of the territorial charge of possessing an unregistered firearm. Ubiles filed a post-trial motion to vacate the conviction, which was denied. The District Court sentenced Ubiles to three years imprisonment, suspending all but six months of the sentence, and to supervised probation for a period of four years and six months.2 This appeal followed. The District Court of the Virgin Islands had jurisdiction under 18 U.S.C. SS 3231, 3241, and 48 U.S.C. S 1612(c). We have jurisdiction pursuant to 28 U.S.C. S 1291. We exercise plenary review of the District Court's decision to deny Ubiles's motion to suppress the firearm in question. See United States v. Hyde, 37 F.3d 116, 118 (3d Cir. 1994).

II.

The Fourth Amendment prohibits "unreasonable searches and seizures . . . ." U.S. CONST. AMEND IV; see also Harris v. United States, 331 U.S. 145, 150 (1947). "What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). The "general rule" is that "warrantless searches are presumptively unreasonable . . . ."...

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