United States v. Henry

• Decision Date: 15 July 2012
• Docket Number: Criminal Action No. 2011-030
• Parties: UNITED STATES OF AMERICA and PEOPLE OF THE VIRGIN ISLANDS, v. ROY HENRY, JR., Defendant.
• Court: U.S. District Court — Virgin Islands

UNITED STATES OF AMERICA and PEOPLE OF THE VIRGIN ISLANDS,

v.ROY HENRY, JR., Defendant.

Criminal Action No. 2011-030

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

Date: July 15, 2012

Attorneys:

Alphonso G. Andrews, Jr., Esq.,

Allan F. John-Baptiste, Esq.,

St. Croix, U.S.V.I.

For the Government

Yohana M. Manning, Esq.,

St. Croix, U.S.V.I.

For the Defendant

MEMORANDUM OPINION

Lewis, District Judge

THIS MATTER is before the Court on Defendant's Motion to Suppress and Supplemental Motion to Suppress, which were filed on December 7, 2011, and January 12, 2012, respectively. (Dkt. Nos. 17 & 39). The Government filed its Opposition to these Motions on January 26, 2012. (Dkt. No. 43). An evidentiary hearing on this matter was held on April 10 and 11, 2012. On April 30, 2012, Defendant filed a supplemental brief regarding his "standing" as an "overnight guest" to raise a Fourth Amendment challenge to the search, (Dkt. No. 77), and the Government filed a supplemental opposition on May 7, 2012 (Dkt. No. 78). For the reasons discussed below, the Court will deny Defendant's Motions.

I. BACKGROUND¹

A. The Search Warrant Affidavit

On February 23, 2011, Virgin Islands Superior Court Judge Darryl Donahue issued a search warrant for Apartment 195 of Building 31 of the John F. Kennedy Housing Community ("Apartment 195"). (See Crim. Case. No. 2011-06, Dkt. No. 161-3).² The search warrant was based entirely on the affidavit of Sergeant Dino Herbert (the "Herbert Affidavit") of the Virgin Islands Police Department (VIPD). (See Dkt. No. 39-1). The Herbert Affidavit stated as follows:

1. On February 2, 2011, Sgt. Herbert responded to a radio report of shots being discharged in the vicinity of the Post Office in Fredericksted, St. Croix. The dispatcher also stated that there was a "man down" at the location. (Herbert Aff. at ¶ 2, Dkt. No 39-1).

2. Shortly thereafter, Sergeant Herbert arrived at the scene and observed a deceased male lying on the ground who had sustained several gunshots. Id. at ¶ 3(b)-(d). The victim was identified by his father as Jamali Allick. Id. at ¶ 3(f). Several days later, the Medical Examiner determined that the cause of death was homicide. Id. at ¶ 3(n).

3. At the crime scene, forensic officers discovered live .45 caliber rounds and several spent .223 and 7.62 x 39 caliber cartridges. Id. at ¶ 3(e). Sgt. Herbert knew from his experience as a law enforcement officer that 7.62 x 3.9 and .223 caliber rounds are used in AK-47s, AR-15s and other semi-automatic rifles. Id. at ¶ 3(q).

4. While at the crime scene on the night of the shooting, an individual approached Sgt. Herbert and informed him that "DMX" and "Uncle Roy" committed the crime and "cameby in a jeep." The individual further stated that he did not wish to get involved. Id. at ¶ 3(g).

5. At the crime scene, other individuals stated that they started running because they saw an individual dressed in brown or black military clothing, wearing what appeared to be a bullet proof vest, and holding a large weapon in his hand. Id. at ¶ 3(h).

6. The following day, Sgt. Herbert canvassed the crime scene and spoke to a witness who stated that, after the shooting, he/she observed an individual in military clothing with a large rifle in his hand get into the back of what appeared to be a black jeep with a rear mounted spare tire. Id. at ¶ 3(i).

7. Immediately following the incident, the VIPD Criminal Investigation Bureau received numerous "Crime Stoppers" tips implicating "DMX/X-Man," "Uncle Roy," and "Bugzy" in the shooting of Jamali Allick. The Crime Stopper tips also indicated that Dwayne Woodrup a/k/a DMX/X-Man resides and "hangs out" at Apartment 195. The Crime Stopper information about where Dwayne Woodrup resides and hangs out was consistent with information learned by Sgt. Herbert from prior investigations. Id. at ¶ 3(j)-(k).

8. From prior investigations, Sgt. Herbert knew that DMX/X-Man's real name is Dwayne Woodrup; Uncle Roy's real name is Roy Henry, Jr.; and Bugzy's real name is Levar Pogson. Sgt. Herbert's prior investigation also revealed that Woodrup, Henry and Pogson are associates of a gang called the "Kennedy Real Killers" and that this gang is rivals with other gangs in the territory. Id. at ¶ 3(j).

9. During the investigation into the murder of Jamali Allick, Sgt. Herbert received information from associates of Allick and Woodrup that "the two rival groups are preparing for a feud." Id. at ¶ 3(m).

10. On February 18, 2011, Sgt. Herbert learned from a Federal Bureau of Investigation ("FBI") Agent that a Confidential Informant ("CI") had informed the FBI that he/she observed an AK-47 rifle, leaning on the living room wall next to a couch by the living room door, and four handguns and drugs on a table in the same living room at Apartment 195. The FBI Agent further informed Sgt. Herbert that the CI had also observed several male individuals going in and out of Apartment 195 with guns at their waists. Id. at ¶ 3(o).

11. Apartment 195 is maintained by Dwayne Woodrup's family. Dwayne Woodrup, Roy Henry and Levar Pogson hang out at Building 31 with others and sell drugs from there. (Id. ¶ 3(p)). Dwayne Woodrup stays at Apartment 195. Id. at ¶ 3(x).

12. Dwayne Woodrup also resides with family members at No. 398 Castle Burke in Fredericksted. Id. at ¶ 3(x).

13. While conducting registration checks and other surveillance to determine the vehicles that Dwayne Woodrup and his family operate, Sgt. Herbert learned that Woodrup's mother, Sylvia Cornelius, owns and operates a 1998 dark green Toyota RAV4 with a rear mounted spare tire. The RAV4 was photographed outside the family residence. Id. at ¶ 3(r).

14. On February 20, 2011, Sgt. Herbert showed the picture of the RAV4 to the witness who had previously stated that after the shooting he/she had seen an individual get into the back of what appeared to be a jeep with a rear mounted tire. The witness confirmed that the vehicle in the picture was similar in type and shape to the vehicle that he/she saw on the night of the homicide, but could not determine whether the color was the same because it was dark outside on the night of the homicide. Id. at ¶ 3(s).

15. On February 21, 2011, the VIPD firearms bureau confirmed that Dwayne Woodrup, Roy Henry, and Levar Pogson are not authorized to possess firearms or ammunition in the United States Virgin Islands. Id. ¶ at 3(t).

16. Sgt. Herbert knows from his experience and training that persons participating in violent crimes tend to hide evidence of such crimes in and around the physical surroundings of their homes, their families' homes and vehicles. (Id. ¶ 3(w)).

B. The Suppression Hearing

At the April 10, 2012 suppression hearing, Officer Ramos of the VIPD testified as follows: At approximately 1:00 a.m. on February 25, 2011, he and several VIPD officers assembled outside Apartment 195 in preparation for execution of the search warrant issued by Judge Donahue on February 23, 2011. Officer Jason Vivieros, who was standing directly outside the door to Apartment 195, knocked three times and announced "Police. Search warrant!" After waiting approximately 15-20 seconds and hearing no response, Officer Vivieros used a battering ram to force the door open.

Officer Vivieros, who was holding a "ballistic shield" in one hand and his service weapon in the other, led the officers into the apartment. Through the shield's 6 X 10 inch window, Ramos immediately observed an individual, later identified as Defendant Henry, sitting on a couch and pointing a black revolver away from the door. Ramos testified that DefendantHenry appeared to be showing the revolver to an individual sitting to Henry's immediate left. Officer Ramos ordered Henry to drop the weapon, but Henry did not respond. Ramos repeated the command, and Henry dropped the weapon into his lap, and it then slid onto the floor.³ Henry and the individual sitting next to him, later identified as Mario Felix, were detained. During the ensuing search of the apartment, VIPD officers discovered crack and powder cocaine, marijuana, a digital scale, marijuana packaging material, a .40 caliber firearm and ammunition, various loaded firearm magazines, gun cleaning supplies, two "imitation" body vests, and several thousand dollars in U.S. currency. Two other individuals, Dwayne Woodrup and Levar Pogson, were asleep in rear bedrooms in Apartment 195 at the time of the entry, and were also arrested following the search.⁴

The Government further introduced evidence showing that, in February 2011, Apartment 195 was rented by Renise Woodrup James, who is the sister of Dwayne Woodrup. According to James' Grand Jury testimony in this matter, no one lived at Apartment 195 in February 2011, but she continued paying rent on the apartment and, at some point, provided keys to Woodrup and Pogson. (See March 15, 2011 Grand Jury Testimony, Gov. Ex. 2 at 2-9).⁵ She testified that Dwayne Woodrup and Defendant Henry have been friends since they were children.

Defendant Henry's mother, Coleen Henry, testified that in February 2011, Henry was living with her at 178 Richmond, but that he occasionally spent some nights out. The evidence also showed that after Henry was arrested, he informed police that his address was 178 Richmond. (See Feb. 25, 2011 Arrest Report, Gov. Ex. 1)

According to a signed statement dated June 18, 2011, made by Pogson to Sergeant Herbert, which was received into evidence at the suppression hearing, on February 25, 2011, Pogson was watching a basketball game at Apartment 195, and Defendant Henry and Felix came to Apartment 195 to "visit" him. (See June 18, 2011 Statement, Gov. Ex. 3). Pogson sold some marijuana to Felix, and after smoking some marijuana, Pogson went into one of the bedrooms and fell asleep. Id.

II. DISCUSSION

Defendant Henry seeks to suppress the firearm allegedly found on the floor by his feet and the VIPD's observation that he was allegedly holding a firearm at the time that police entered Apartment 195. Defendant's ...