United States v. Somme

• Decision Date: 20 September 2022
• Docket Number: CRIMINAL ACTION 2019-0018
• Parties: UNITED STATES OF AMERICA v. TROY SOMME, JR., and ELIJAH RITTER, Defendants.
• Court: U.S. District Court — Virgin Islands

UNITED STATES OF AMERICA
v.
TROY SOMME, JR., and ELIJAH RITTER, Defendants.

CRIMINAL ACTION No. 2019-0018

United States District Court, D. Virgin Islands, Division of St. Croix

September 20, 2022

Daniel H. Huston, Esq., St. Croix, U.S.V.I. For the United States

Martial A. Webster, Esq., St. Croix, U.S.V.I. For Defendant Troy Somme, Jr.

Pamela L. Colon, Esq., St. Croix, U.S.V.I. For Defendant Elijah Ritter

MEMORANDUM OPINION

WILMA A. LEWIS, DISTRICT JUDGE

THIS MATTER comes before the Court on Defendant Elijah Ritter's (“Defendant Ritter”) “Motion to Suppress Any and All Physical Evidence and Statements” (Dkt. No. 59), the Government's Opposition thereto (Dkt. No. 76), and Defendant Ritter's Reply (Dkt. No. 83); Defendant Troy Somme, Jr.'s (“Defendant Somme”) “Motion to Suppress Any and All Physical Evidence and Statements” (Dkt. No. 71), and the Government's Opposition thereto (Dkt. No. 82); the parties' supplemental briefing (Dkt. Nos. 128, 133, 134, 143, 145, 146, 218, 229); and the evidence and arguments presented at the suppression hearing held on March 23-25, 2021, April 12, 2021,

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and August 13, 2021.^[1] For the reasons that follow, the Court will grant both Defendants' Motions to Suppress.

I. BACKGROUND

On October 15, 2019, the Government filed an Indictment against both Defendants. (Dkt. No. 1). The Indictment charges Defendant Somme with: possession of an unregistered national firearms registration weapon in violation of 26 U.S.C. § 5861(d) (Count 1); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) and (B) (Count 2); possession of marihuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2 (Count 8); and maintaining a drug related premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (Count 9). The Indictment charges Defendant Ritter with: two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Counts 3 and 4); two counts of possession of ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Counts 5 and 6); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count 7); possession of marihuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2 (Count 8); and maintaining a drug related premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (Count 9).

The Court held a suppression hearing on Defendants' Motions to Suppress on March 2325, 2021 and April 12, 2021. The Court then ordered the parties to submit supplemental briefing.

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(Dkt. No. 120). Oral argument on Defendants' Motions to Suppress was then held on August 13, 2021.^[2]

The instant Motions to Suppress stem from the execution of two federal search warrants- “the First Search Warrant” (Govt. Ex. 2) and “the Second Search Warrant” (Govt. Ex. 5)-on March 7, 2019 on the property where Defendants were residing. (Govt. Ex. 4 at 9). Prior to obtaining the First Search Warrant, law enforcement officers conducted warrantless aerial surveillance of the property on January 29, 2019 and February 6, 2019 in order to photograph the property. (Govt. Exs. 7, 8). The photographs taken during the aerial surveillance revealed an alleged marijuana cultivation operation taking place on the property and the photographs were used as a basis to apply for the First Search Warrant. (Govt. Ex. 1 at 4-8). Additionally, on January 31, 2019, a law enforcement officer performed warrantless surveillance of parts of the property from the ground level. Id. at 7.

The property at issue is a rural plot of land containing two buildings: “the Primary Residence” and “the Secondary Residence.” (Govt. Ex. 1 at 12; see also Govt. Ex. 20). The Secondary Residence is a duplex which is divided into two units, referred to as 9A and 9B. 9B is on the western side of the duplex and sits closer to the public road and entrance to the driveway, whereas 9A is on the eastern side and is located closer to the Primary Residence. (Tr. Vol. II at 188, 190-191; Tr. Vol. III at 47, 78-79; Tr. Vol. IV at 169; Govt. Ex. 4 at 9).^[3] Defendant Ritter

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resides in unit 9A of the duplex and Defendant Somme resides in unit 9B. (Tr. Vol. III at 6; Tr. Vol. IV at 169; Govt. Ex. 4 at 9). The driveway curves up from the public road to a small rectangular parking area. (Govt. Ex. 20). The Secondary Residence is the first structure seen as one enters the property from the driveway. Id. The side of the Secondary Residence runs parallel to the public road, and the front of the building-which includes an enclosed porch extending along the front of the structure-opens onto the rectangular parking area. Id. The Secondary Residence is on the western side of the property, and sits south of the Primary Residence. (Tr. Vol. I at 162, 223; Tr. Vol. II at 123). The Primary Residence sits perpendicular to the Secondary Residence, and the front of the building also opens onto the rectangular parking area and faces the direction of the public road. (Govt. Ex. 20). The Primary Residence runs in an east to west direction. (Tr. Vol. I at 162, 223). The alleged marijuana grow operation was located in the yard behind the Primary Residence. (Govt. Ex. 20). The entire property is surrounded by thick brush and trees. Id.

The First Search Warrant authorized the search of the Primary Residence and explicitly excluded the Secondary Residence. (Govt. Ex. 2 at 2-3). During the execution of the First Search Warrant, law enforcement discovered that no one was living in the Primary Residence. However, Defendants and others residing in the Secondary Residence were detained on the property for the duration of the search. Officers accompanied those detained individuals into the Secondary Residence several times so that the individuals could retrieve clothing and blankets, or use the restroom. Eventually, during the execution of the First Search Warrant, law enforcement conducted alleged “protective sweeps” of both units within the Secondary Residence. Defendants'

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vehicles parked on the property-including Defendant Ritter's GMC truck and Defendant Somme's BMW-were searched under the authority of the First Search Warrant. (Tr. Vol. III at 142-149; see also Govt. Exs. 13, 16). Defendant Ritter made several statements to law enforcement on the scene. (Tr. Vol. IV at 64-66). Based on the evidence discovered on the property, law enforcement applied for the Second Search Warrant which authorized them to search the Secondary Residence. (Govt. Exs. 4, 5).

As a result of both searches, the Government seized numerous firearms, ammunition, approximately 160 marijuana plants, processed marijuana, cash, and drug paraphernalia. (Dkt. No. 76 at 1; Dkt. No. 82 at 1-2). Specifically, during the search of the Primary Residence, law enforcement discovered live marijuana plants and harvested plants hanging to dry. (Govt. Ex. 4 at 9). Additionally, two pistols were found in the center console of Defendant Ritter's truck. Id. Both Defendants were then arrested and taken to be interviewed.^[4]

At the suppression hearing, the Government presented the testimony of several witnesses: Special Agent Edward Henderson; Task Force Officer David Wyrzykowski; Special Agent Michael Reed; Officer Gregory Bennerson; Special Agent William Medina; and Special Agent Kristian Olsen. In addition, Defendant Somme presented the testimony of one witness, Marisol Ruiz, who was present on the property during the execution of the search warrants.

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A. Special Agent Edward Henderson

The Government's first witness was Special Agent Edward Henderson, a pilot assigned to the DEA's Aviation Division. (Tr. Vol. I at 5). He testified that on January 29, 2019, he was the pilot on a flight mission to conduct surveillance on St. Croix with Task Force Officer David Wyrzykowski operating as an observer. Id. at 15-18. On February 6, 2019, he flew over the same property with Special Agent Michael Reed acting as an observer. Id. at 20-21, 43, 46, 60-61.

Special Agent Henderson testified that while flying he monitors his altitude, his speed, the temperature, and the wind direction. Id. at 29. For safety purposes, his practice is to fly with at least a thousand-foot clearance over the highest object in the particular area. Id. at 31. Special Agent Henderson stated that the plane he flew had no gauge that tells him the altitude above the land surface he is immediately over. Id. at 30-31. In order to fly in compliance with his safety standards, he testified that:

Depending on the location which I'm flying, I review our charts, the aeronautical charts, FAA charts, and in those charts it gives you, for example, it's called the maximum elevation figure.... And what that figure does is it tells you the highest point or highest obstacle or highest geographical location in a particular area. And from that, . . . I can judge the altitude that I'm going to fly.

Id. at 32.

Special Agent Henderson testified that on January 29, 2019 and February 6, 2019, he flew utilizing these standards. Id. at 33, 46, 88. The elevation of the highest obstacle in the area for the surveillance flights was 1,000 feet. Id. at 51.

When arriving at the place to be photographed, his practice is to conduct orbits around the location at a constant bank. Id. at 33-34. Additionally, he slows down to a low airspeed to allow the passenger observer to view the area. Id. at 44.

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Special Agent Henderson testified that the altitude of the plane is recorded at the time of flight, but is not memorialized in any way. Id. at 52-53. He could not testify as to the lowest altitude at which he flew during the surveillance missions other than landing and taking off, and he could not recall the altitude at which he was flying when he circled the...