David v. Gov't of the Virgin Islands
| Decision Date | 25 June 2009 |
| Docket Number | D.C.Crim.App. No. 2003–129. |
| Citation | 51 V.I. 993 |
| Parties | Kevin DAVID, Appellant, v. GOVERNMENT OF the VIRGIN ISLANDS, Appellee. |
| Court | U.S. District Court — Virgin Islands |
OPINION TEXT STARTS HERE
On Appeal from the Superior Court of the Virgin Islands, Superior Court Judge: The Honorable Brenda J. Hollar.
Deniece Rainey, Esq., St. Thomas, U.S.V.I., for appellant.
Maureen Phelan, AAG, St. Thomas, U.S.V.I., for appellee.
Before: CURTIS V. GÓMEZ, Chief Judge of the District Court of the Virgin Islands; RAYMOND L. FINCH, Judge of the District Court of the Virgin Islands; and PATRICIA D. STEELE, Judge of the Superior Court of the Virgin Islands, Division of St. Croix, sitting by designation.
Following a jury trial in the Superior Court of the Virgin Islands, Division of St. Thomas and St. John (the “Superior Court”) 1 Kevin David (“David”) was convicted of possession of marijuana with intent to distribute. For the reasons given below, the Court should affirm David's conviction.
On February 5, 2002, David traveled from Atlanta, Georgia to St. Thomas, U.S. Virgin Islands on a commercial airline flight. Drug Enforcement Agency (“DEA”) officers at the Atlanta airport observed that David was in possession of a large sum of cash as he passed through security before boarding his flight to St. Thomas. Agents also observed that an unidentified woman who appeared to be an airport employee met with David briefly while David was boarding the airplane. While David was in flight, the DEA agents in Atlanta contacted law enforcement in St. Thomas and gave a description of David and his belongings.
When David arrived at the airport in St. Thomas, DEA Special Agent Mark McHugh observed him disembark from the airplane. After David retrieved two checked bags from the baggage claim area at the airport in St. Thomas, he was approached by Special Agent McHugh. David agreed to accompany Special Agent McHugh to an area near the customs office at the St. Thomas airport. After receiving David's consent, Special Agent McHugh and High Intensity Drug Trafficking Area (“HIDTA”) Task Force Officer Richard Velazquez searched his person and found approximately $4,500 in cash. Without David's consent, United States Customs Inspector Gloria Lambert searched his luggage and found over ten pounds of marijuana wrapped in ten plastic bundles. David was arrested.
On February 13, 2002, the Government of the Virgin Islands (the “Government”) filed a single-count criminal information charging David with possession of marijuana with intent to distribute, in violation of title 19, section 604(a)(1) of the Virgin Islands Code.
David moved for suppression of the marijuana found in his baggage.
On July 12, 2002, the Superior Court conducted a hearing on David's suppression motion. The Government presented no witnesses or other evidence at the suppression hearing, as its key witness was outside the territory.2 The court proceeded to hear the parties' arguments regarding the legality of the search. At the conclusion of the hearing, the trial judge took the motion under advisement and ordered additional briefing on the issue of whether the search of David's luggage fell within the border search exception to the warrant requirement of the Fourth Amendment. The court also stated:
THE COURT: I'll give the parties any opportunity to put on any factual matters ... unless the parties can come to some agreement that its purely a legal matter.
...
[DEFENSE ATTORNEY]: I do believe the issue is really the border issue as the Court was discussing.... I don't think there's a need for a hearing.
(Suppression Hr'g Tr. 83–84, July 12, 2002.) The court set a control date for an evidentiary hearing in the event the parties desired to present evidence on the matter. The record below reflects that no such hearing was never conducted.
On October 30, 2002, the Superior Court entered a memorandum opinion and order denying David's motion to suppress. The court reasoned that
the Customs Inspector did not possess probable cause when she searched the defendant's luggage. Such probable cause, however, was not needed because the search occurred at Cyril E. King Airport, which is the functional equivalent of a border. Additionally, there is an “internal” customs border between the United States customs territory and the Virgin Islands. Customs Inspectors have the authority to make routine, suspicionless searches of persons and things that enter the Virgin Island from the mainland and other custom zone areas. The search in this case was “routine,” despite the fact that it was not at a regularly established checkpoint, because it was mildly intrusive and was based on suspicion. Such searches are “reasonable” within the meaning of the Fourth Amendment.3
Gov't of the V.I. v. David, 45 V.I. 100, 117 (Terr.Ct.2002).
David's jury trial was conducted on April 14 and 15, 2003. Several witnesses testified on behalf of the Government, including Special Agent McHugh and Customs Inspector Lambert. David testified on his own behalf at his trial. He admitted to possessing the marijuana in his checked luggage. David stated that he intended to use the marijuana “to boil some marijuana tea and drink the bush,” in order to ease severe stomach pains he experienced since 1999. (Trial Tr. 189, April 14, 2003.) At the conclusion of the trial, the jury found David guilty of the offense charged in the information.
On July 1, 2003, the Superior Court entered a judgment and commitment, finding that David could be sentenced pursuant to the Virgin Islands habitual offender statute 4 based on a crime for which David was convicted in 1992. The court sentenced David to ten years imprisonment, with five years suspended. The Court also suspended David's driver's license for five years following his release from prison.
David timely appealed his conviction, raising the following two issues: (1) whether the trial court committed reversible error in denying David's motion to suppress the marijuana as evidence in the Government's case-in-chief at trial, and (2) whether the conduct of the prosecutor deprived David of his due process right to a fair trial.
This Court has jurisdiction over appeals of final judgments and orders of the Superior Court filed before January 29, 2007, the date on which the Supreme Court of the Virgin Islands was certified as ready to assume such jurisdiction. SeeRevised Organic Act of 1954 23A, 48 U.S.C. § 1613a; V.I.Code Ann. tit. 4, § 33 (2002).5
Garcia v. Gov't of the V.I., 480 V.I. 530, 534 (D.V.I.App.Div.2006) (); see also Saludes v. Ramos, 744 F.2d 992 (3d Cir.1984).
Decisions denying motions to suppress evidence are reviewed for clear error with respect to the court's underlying factual findings, although the court's application of the law to those facts is entitled to plenary review. See United States v. Leveto, 540 F.3d 200, 21 n. 9 (3d Cir.2008); Gov't of V.I. v. Petersen, 131 F.Supp.2d 707, 710 (D.V.I.App.Div.2001).
We review de novo whether a prosecutor's conduct was improper. See Turbe v. Gov't of the V.I., 49 V.I. 730 (D.V.I.App.Div.2008) (citing United States v. Nelson Rodriguez, 319 F.3d 12, 38 (1st Cir.2003)).
Reversal may be avoided if trial errors are found to be harmless. See Fed.R.Crim.P. 52(a) (2002)6; Davis v. Gov't of the V.I., 48 V.I. 860, 871–73 (D.V.I.App.Div.2007). “Under this standard, the reviewing court must satisfy itself that there is no reasonable possibility that the error, viewed in the context of all the evidence presented, contributed to the guilty verdict, undermining confidence in the trial.” Davis, 48 V.I. at 871–72.
David argues that the Superior Court erred by denying his motion to suppress the marijuana found in his luggage at the St. Thomas airport. He claims that the marijuana should have been excluded from the Government's case-in-chief at trial because the search of his luggage was conducted in violation of his rights under the Fourth Amendment of the United States Constitution.
The Fourth Amendment protects citizens “against unreasonable searches and seizures.” U.S. Const., amend. IV.7 “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, 105 S .Ct. 3304, 87 L.Ed.2d 381 (1985). There is a presumptive requirement that, to be reasonable, searches or seizures must be carried out pursuant to a warrant. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) () (internal citations omitted).
As an exception to the warrant requirement, the Supreme Court has explained that “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.” United States v. Flores–Montano, 541 U.S. 149, 124 S.Ct. 1582, 1585, 158 L.Ed.2d 311 (2004) (internal citation and quotations omitted); see also United States v. Glasser, 750 F.2d 1197, 1200 (3d Cir.1984) (...
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