United States v. Barconey
| Decision Date | 08 January 2019 |
| Docket Number | Criminal Action No. 2017-0012,Criminal Action No. 2018-0004,Criminal Action No. 2017-0011 |
| Parties | UNITED STATES OF AMERICA v. ORIANA BARCONEY, Defendant. UNITED STATES OF AMERICA v. NATHALIE LOPEZ, et al., Defendants. UNITED STATES OF AMERICA v. DEQUAN FORDE, Defendant. |
| Court | U.S. District Court — Virgin Islands |
Attorneys:
Daniel H. Huston, Esq.,
St. Croix, U.S.V.I.
Meredith J. Edwards, Esq.,
St. Thomas, U.S.V.I.
For the United States
Omodare B. Jupiter, Esq.,
St. Croix, U.S.V.I.
For Defendants Oriana Barconey and Dequan Forde
Yohana M. Manning, Esq.,
St. Croix, U.S.V.I.
For Defendant Nathalie Lopez
Kia D. Sears, Esq.,
St. Thomas, U.S.V.I.
For Defendant Dequan Forde
THIS MATTER comes before the Court on the Motions to Suppress filed in United States v. Oriana Barconey, Criminal Action No. 2017-0011 (hereinafter "Barconey") (Dkt. No. 19), United States v. Nathalie Lopez, Criminal Action No. 2017-0012 (hereinafter "Lopez") (Dkt. No. 24), and United States v. Dequan Forde, Criminal Action No. 2018-0004 (hereinafter "Forde") (Dkt. No. 14). Each Motion raises an identical question of law for resolution by the Court: whether the warrantless and suspicionless searches of individuals and their luggage performed by United States Customs and Border Protection ("CBP") officers as Defendants' flights arrived at the Henry E. Rohlsen airport on St. Croix, United States Virgin Islands ("Virgin Islands"), from the continental United States were reasonable under the Fourth Amendment.1 For the reasons that follow, the Court concludes that the searches were unreasonable and thus constitutionally impermissible. However, because the Court finds that the good faith exception to the exclusionary rule applies, the Court will deny Defendants' requests to suppress the tangible evidence discovered as a result of the searches.
In each of the above-captioned cases, CBP Officer Richard Anderson performed x-ray examinations of luggage arriving at the Henry E. Rohlsen airport on St. Croix on American Airlinesflights from Miami, Florida.3 Officer Anderson observed "unusual packaging" in the luggage involved in each case. Following Officer Anderson's observations, CBP officers performed physical searches of the luggage, revealing packages containing substances that later field-tested positive for the presence of marijuana.4 After discovering the alleged marijuana, law enforcement performed controlled deliveries by placing the luggage on the baggage carousel and conducting surveillance in the baggage claim area at the airport. Defendants Barconey and Forde were detained by law enforcement after they personally retrieved the luggage from the baggage carousel, while Defendant Lopez was detained in the airport after her co-defendant retrieved the luggage.5
Defendants were subsequently charged with federal narcotics offenses.6 Defendants argue in their respective Motions to Suppress that the tangible evidence seized following the searches of their luggage by CBP officers should be suppressed because the warrantless x-ray examinations of their luggage—performed absent probable cause or reasonable suspicion—violated the FourthAmendment's prohibition on unreasonable searches and seizures.7 The Government concedes that the searches were conducted without a warrant, probable cause, or reasonable suspicion. It contends, however, that the x-ray searches fall within the "border search exception," such that they were reasonable by Fourth Amendment standards.8 A suppression hearing was held in each case, and the parties subsequently submitted supplemental briefing as ordered by the Court.
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)); U.S. CONST. amend. IV ().9 Whether a search 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). "The permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate government interests." Id. (quotations and internal quotation marks omitted). "The touchstone of Fourth Amendment analysis is whether a person has a 'constitutionally protected reasonable expectation of privacy.'" California v. Ciraolo, 476 U.S. 207, 211 (1986) (quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring)).
"The general rule is that 'warrantless searches are presumptively unreasonable.'" Hyde, 37 F.3d at 118 (quoting Horton v. California, 496 U.S. 128, 133 (1990)). There exist, however, "exceptions to the general rule which recognize that in certain limited situations the government's interest in conducting a search without a warrant outweighs the individual's privacy interest." Id. (citing Montoya de Hernandez, 473 U.S. at 537); see also Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) () (citations omitted). "Border searches are one such exception." Hyde, 37 F.3d at 118.
Border searches "have a unique status in constitutional law." United States v. Ezeiruaku, 936 F.2d 136, 142 (3d Cir. 1991) (citation omitted). 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 contraband is well-recognized. Montoya de Hernandez, 473 U.S. at 537 (citingUnited States v. Ramsey, 431 U.S. 606, 616-617 (1977)).10 Indeed, searches at the international border designed to "'protect [the United States] 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 . . . .'" Hyde, 37 F.3d at 119 (quoting Ramsey, 431 U.S. at 616). Further, individuals have more "limited justifiable expectations of privacy" at the nation's borders. Id. (quoting Ramsey, 431 U.S. at 623 n.17). "[A] port of entry is not a traveler's home." Ramsey, 431 U.S. at 618 (quoting United States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971)). "[N]ot only is the expectation of privacy less at the border than in the interior . . . [but] the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border." Montoya de Hernandez, 473 U.S. at 539-40.
Accordingly, courts have consistently applied the border search exception to searches occurring at the "physical boundaries of the nation" or their "functional equivalent" based on "the sovereign's historical right to police its borders and to examine persons and property entering the country." United States v. Caminos, 770 F.2d 361, 363-64 (3d Cir. 1985) (citing Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973)). Where those searches are routine, they "may be conducted, not just without a warrant, but without probable cause, reasonable suspicion, or any suspicion of wrongdoing." United States v. Whitted, 541 F.3d 480, 485 (3d Cir. 2008) (citing Montoya de Hernandez, 473 U.S. at 538; United States v. Glasser, 750 F.2d 1197, 1201 (3d Cir. 1985)). On theother hand, "certain searches, classified as 'nonroutine,' require reasonable suspicion of wrongdoing to pass constitutional muster." Id. (citing Montoya de Hernandez, 473 U.S. at 541).11
The Virgin Islands are an unincorporated territory of the United States. 48 U.S.C. § 1541(a); Ballentine v. United States, 486 F.3d 806, 809 (3d Cir. 2007). As an unincorporated territory, the Virgin Islands are "subject to the power of Congress under Article IV, Section 3 of the Constitution to make rules and regulations to govern the territory." Hyde, 37 F.3d at 121 (footnote omitted).12
After acquiring the Virgin Islands from Denmark in 1917, Congress exercised that power "to create a border between the Virgin Islands and the rest of the United States for customs purposes." Id. Specifically, by its Act of March 3, 1917, Congress provided for the levy of duties on "articles coming into the United States or its possessions" from the Virgin Islands at the rates "paid upon like articles imported from foreign countries." Act of Mar. 3, 1917, ch. 171, § 3, 39 Stat. 1133. Congress continues to provide for the levying of such duties today. 48 U.S.C. § 1394.13 After the Virgin Islands were acquired by the United States, Congress also enacted legislation providing that "all lawsimposing taxes" that existed in the Virgin Islands at the time of the acquisition of the islands by the United States from Denmark—including "customs laws and regulations"—would "continue in force and effect[.]" Act of Mar. 3, 1917, ch. 171, § 4 (codified at 48 U.S.C. § 1395). Thus, Danish customs laws in effect prior to the acquisition of the Virgin Islands by the United States—which related primarily to duties imposed on the importation of goods into the Virgin Islands—were preserved. These laws included a provision establishing an import duty of six percent of the value of goods imported into St. Thomas and St. John. Act No. 64-1914, concerning Custom House and Ships Dues in St. Thomas and St. Jan, § 1 (Apr. 1, 1914), reprinted in 1 V.I.C., Historical Documents, Organic Act of 1936. Imposition of the six percent duty was extended to goods imported into St. Croix through the ...
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