Opinion
Crim. App. No. 2000-505, Re: Terr. Ct. Crim. Nos. F158/1999.
Considered November 30, 2001.
Filed March 8, 2002.
Kathleen Mackay, Esq., St. Thomas, U.S.V.I., Attorney for Appellant.
Carol S. Moore, Esq., Assistant Attorney General, St. Thomas, U.S.V.I., Attorney for Appellee.
BEFORE: RAYMOND L. FINCH, Chief Judge of the District Court of the Virgin Islands; THOMAS K. MOORE, Judge of the District Court of the Virgin Islands; and MARIA M. CABRET, Presiding Judge of the Territorial Court of the Virgin Islands, Division of St. Thomas, Sitting by Designation.
On Appeal from the Territorial Court of the Virgin Islands
OPINION OF THE COURT
On March 26, 1999, Maurice Joseph ("Joseph" or "appellant") was detained for overstaying his visa after Officer Rodney Querrard ("Officer Querrard" or "Querrard") had questioned him regarding him being seated in his parked car in Hull Bay. A subsequent search of the passenger compartment of his car uncovered envelopes containing cocaine and marijuana, whereupon Officer Querrard arrested Joseph for possession with intent to distribute narcotics. On September 2, 1999, a jury found Joseph guilty of possession with intent to distribute narcotics and the trial court denied Joseph's motion for judgment notwithstanding the verdict. On March 22, 2000, the trial court sentenced Joseph to two concurrent ten year sentences on March 22, 2000. Joseph filed a timely notice of appeal. Joseph bases his appeal on alleged Fourth Amendment violations in regard to his detention and the search and seizure of evidence. In addition, Joseph argues that the trial court erred in denying his motion for judgment notwithstanding the verdict and that he was denied effective counsel under the Sixth Amendment. This Court will affirm the defendant's sentence.
I. FACTUAL AND LEGAL BACKGROUND
On March 26, 1999, Officer Querrard received a tip concerning a "suspicious" car with occupant parked in a Hull Bay residential area for a prolonged period of time. Officer Querrard, who lived in the area, drove past the car on his way to the babysitter and took down the car's license plate number. Upon arriving at the police station, Officer Querrard ran a registration check and discovered that the car was registered to Ivan Rampersad ("Officer Rampersad"), a fellow police officer. Officer Querrard then drove back to Hull Bay to find that the car was still parked alongside the road. Officer Querrard then approached the vehicle and asked the occupant, Joseph, if there was something wrong with the car and for his license and registration. Upon stating that nothing was wrong with the car, Joseph handed Officer Querrard the car's registration, which confirmed that Officer Rampersad held legal title to the car, and explained that he was in the process of purchasing the car from Officer Rampersad. Joseph, however, did not hand over his license and admitted that he did not have one. After a second request for identification, Joseph handed Officer Querrard a Dominica driver's license. When questioned about his legal status, Joseph admitted that he had overstayed his visa. Officer Querrard then detained Joseph and drove him to the Immigration and Naturalization Services ("INS") office at Nisky Center, leaving Joseph's car by the road.
At trial, Officer Querrard stated that he knew the identity of the informant, but declined to divulge the informant's identity. (J.A. at 41-42.)
At the time, the Hull Bay area was experiencing a number of burglaries. (J.A. at 20.)
Folded into this license was a previous citation for driving without a license.
After arriving at the INS office, Officer Querrard called Officer Rampersad to inform him of the situation and to request that Officer Rampersad move the car. Upon learning that Officer Querrard was returning to Hull Bay, Joseph asked him to retrieve his bankbook and other paperwork from the car. Officer Querrard then left the INS office to pick up Officer Rampersad and the two officers proceeded back to Hull Bay. When they arrived at the car, Officer Querrard searched the passenger compartment looking for Joseph's requested materials. During the search, he uncovered envelopes containing cocaine and marijuana. Officer Querrard then returned to the INS office and placed Joseph under arrest for possession with intent to distribute narcotics in violation of section 604(a)(1) of title 19 of the Virgin Islands Code and cited him for driving without a license.
Appellant makes much of the fact that he was never charged with any immigration violation by the Territory despite his initial detention, but was instead charged with drug possession and cited for driving without a license. He argues that the absence of immigration charges implies that his initial detention was pretextual and he was, in fact, arrested for driving without a license. As Officer Querrard never witnessed Joseph driving the car and driving without a license is a misdemeanor and not a felony, Joseph contends that Officer Querrard had no authority to place him into custody. (Appellant Br. at 12-20.) Therefore, as the underlying arrest was unlawful, the subsequent search and seizure violated Joseph's Fourth Amendment rights. Although creative, appellant's argument is both irrelevant and meritless. The fact that the Territory brought no immigration charges against Joseph does not negate the validity of the initial arrest, since the federal government alone controls immigration.
After a jury trial, Joseph was found guilty of possession with intent to distribute narcotics. Joseph immediately moved for a judgment notwithstanding the verdict, but the trial court denied his motion, finding the government had provided sufficient evidence to convict him. (J.A. at 137-41.) On March 22, 2000, the trial court sentenced Joseph to two concurrent ten year sentences on March 22, 2000. Joseph filed a timely notice of appeal. In his appeal, Joseph argues that: (1) Officer Querrard violated his Fourth Amendment rights because Officer Querrard did not have reasonable suspicion that any criminal activity was afoot when he stopped him; (2) the search and subsequent seizure of evidence from Joseph's car was unconstitutional; (3) the trial court erred in denying his motion for judgment notwithstanding the verdict; and (4) he was denied his Sixth Amendment Right to effective assistance of counsel.
II. DISCUSSION
A. Jurisdiction and Standard of Review
This Court has jurisdiction to review final judgments and orders of the Territorial Court in all criminal cases. See 4 V.I.C. § 33. In reviewing the sufficiency of the evidence to support a conviction, the verdict of a jury must be sustained if, in viewing the evidence in the light most favorable to the government, a reasonable mind could find the defendant guilty beyond a reasonable doubt of every element of the offense. See Government of the Virgin Islands v. Sampson, 42 V.I. 247, 94 F. Supp.2d 639 (D.V.I. App. Div. 2000); DuBois v. Government of the Virgin Islands, 25 V.I. 316, 319 (D.V.I. App. Div. 1990). Our review of constitutional claims is plenary. See Nibbs v. Roberts, 31 V.I. 196, 204 (D.V.I. App. Div. 1995).
See Revised Organic Act of 1954 § 23A; 48 U.S.C. § 1613a. The complete Revised Organic Act of 1954 is found at 48 U.S.C. § 1541-1645 (1995 Supp. 2000), reprinted in V.I. CODE ANN. 73-177, Historical Documents, Organic Acts, and U.S. Constitution (1995 Supp. 2000) (preceding V.I. CODE ANN. tit. 1) ["REV. ORG. ACT"].
B. Appellant Waived Fourth Amendment Challenges
For the first time on appeal, Joseph claims police unlawfully stopped him as he sat in his parked car and subsequently conducted an illegal search of his car, resulting in evidence that was used against him at trial.
The Federal Rules of Criminal Procedure require that any defense based on legality of evidence be raised prior to trial. See FED. R. CRIM. P. 12(b)(3). The defendant waives any evidentiary challenge not raised before trial unless excused "for good cause shown." See id. 12(f). Joseph concedes his failure to raise the Fourth Amendment challenge to the physical evidence removed from the car may constitute a waiver of that objection. He argues, however, again for the first time that this Court should find that his counsel was ineffective in failing to file a suppression motion or otherwise challenging the introduction of evidence found in the car during what he terms an illegal search, thereby warranting relief from such waiver.
Evidentiary challenges and determinations of good cause for failure to raise such challenges before trial are issues to be decided by the trial court in the first instance and should not be heard for the first time on appeal. See FED. R. CRIM. P. 12(b), (f); see also Government of the Virgin Islands v. Martinez-Hidalgo, 28 V.I. 365, 374, 993 F.2d 1052, 1058 (3d Cir. 1993) (rejecting summarily a Fourth Amendment challenge brought for the first time on appeal without reaching the merits because appellant had waived his challenge).
Since Joseph never raised it, the trial court has never had the opportunity to consider whether his counsel was ineffective in failing to object to the evidence now challenged. The trial court never having had the opportunity to determine whether Rule 12(f) relief was warranted, this Court will not consider that issue on appeal for the first time.
C. Joseph's Challenged Evidence Fails to Satisfy Plain Error Doctrine
This Court, however, may review Joseph's Fourth Amendment claims for plain error. See United States v. Tobin, 155 F.3d 636 (3d Cir. 1998). Rule 52(b) of the Federal Rules of Criminal Procedure defines plain error as "errors or defects affecting substantial rights." See FED. R. CRIM. P. 52(b); see also Sanchez v. Government of the Virgin Islands, 921 F. Supp. 297, 300 (D.V.I. App. Div. 1996) (stating that plain error is an error that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings" and "undermine[s] fundamental fairness of the trial and contribute[s] to a miscarriage of justice") (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936) and United States v. Young, 470 U.S. 1, 16 (1985)). Application of the plain error doctrine "is to be used sparingly and only where the error was sure to have had an `unfair prejudicial impact on the jury's deliberations.'" Sanchez, 921 F. Supp. at 300 (quoting Young, 470 U.S. at 16 n. 14). Neither of Joseph's challenges satisfies this high standard of persuasion.
1. Officer Querrard's Stop Was Lawful
Joseph first argues that Officer Querrard violated his Fourth Amendment rights because he had no reasonable suspicion that Joseph was involved in any criminal activity. Joseph asserts that as parking alongside the road is not, by itself, illegal, Officer Querrard had no reasonable suspicion that he was engaged in any criminal activity and thus had no authority to stop and question him. This Court finds Joseph's argument unpersuasive for two reasons.
On the one hand, Officer Querrard's approach and questioning of Joseph does not by itself constitute a seizure even in the absence of reasonable suspicion. "A seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free `to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.'" See Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari, 499 U.S. 621, 628 (1991)); see also id. ("[M]ere police questioning does not constitute a seizure."); Florida v. Royer, 460 U.S. 491, 497 (1983) ("[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions."); Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968) ("Obviously, not all personal intercourse between policemen and citizens involves `seizures' of persons."). Moreover, the fact that Officer Querrard requested Joseph's identification does not raise this event to the level of a seizure. See Bostick, 501 U.S. at 435; INS v. Delgado, 466 U.S. 210, 216 (1984); Royer, 460 U.S. at 501; United States v. Mendenhall, 446 U.S. 554, 557-58 (1980). As the Supreme Court has made perfectly clear, it is "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may [a court] conclude that a `seizure' has occurred." Terry, 392 U.S. at 19 n. 16.
Accordingly, this Court must determine whether Officer Querrard used any physical force or made a show of authority that would make Joseph believe that he was not free to leave. A review of the record reveals no such evidence. Officer Querrard simply pulled up behind Joseph's car and asked if there was anything wrong and asked for his license and registration. (J.A. at 21.) Such actions are not enough to create the impression that Joseph was not free to leave. Officer Querrard's mere presence at the scene does not, by itself, constitute the show of authority. As there is no evidence that Officer Querrard used any force or authority to compel Joseph to stay, Joseph's decision to remain and answer the questions indicates a reasonable person's willingness to cooperate with law enforcement officials rather than a belief that he was not free to leave. See Miranda v. Arizona, 384 U.S. 436, 477-78 (1966) ("[I]t is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement.").
Accordingly, as the meeting between Joseph and Officer Querrard was consensual and Officer Querrard needed no reasonable suspicion to ask Joseph questions and request his identification, he did not violate any of Joseph's constitutional rights.
On the other hand, even if the meeting between Joseph and Officer Querrard was not consensual, Officer Querrard had the requisite reasonable suspicion to justify briefly detaining Joseph. Under Terry v. Ohio and subsequent cases, a brief detention and interrogation by police officers of an individual is warranted if the officers reasonably believe that the individual is engaged in criminal activity and have reasonable and articulable facts to support their suspicion that criminal activity is afoot. See Terry, 392 U.S. at 21; Illinois v. Wardlow, 528 U.S. 119 (2000). In evaluating whether an officer has the requisite reasonable suspicion, the Court must look to the totality of the circumstances. See United States v. Sokolow, 490 U.S. 1, 8 (1989); United States v. Cortez, 449 U.S. 411, 417 (1981).
A look to the record leads this Court to conclude that Officer Querrard had the requisite reasonable suspicion. Joseph's car was parked in an area that had experienced a number of recent burglaries. Moreover, the car was registered to someone other than the driver and was still there when Officer Querrard returned to the site. Taken together in the totality of the circumstances, these factors are sufficient to give rise in the mind of a reasonable police officer that criminal activity is afoot. See Delaware v. Prouse, 440 U.S. 648, 661 (1979) (noting that an officer may stop a driver if there is "reasonable suspicion that the driver is unlicensed or his vehicle unregistered"); United States v. Rickus, 737 F.2d 360 (3d Cir. 1984) (noting that the reputation of an area for criminal activity is an articulable fact a officer may reasonably rely on). This is the reason why "the applicable standard in determining the propriety of a Terry stop is not whether the defendant's acts can be construed as innocent through the exercise of exegetical speculation, but rather whether they give rise to an articulable, reasonable suspicion of criminal activity." Rickus, 737 F.2d at 366. Moreover, Officer Querrard's stop was "but a minor intrusion on the defendant's personal security; it was reasonably related to the observations which had caused [him] to become suspicious, and it did not exceed the extent of inquiry reasonably justified by those suspicions." Id. Therefore, as Officer Querrard had the requisite reasonable suspicion to stop and interrogate Joseph, his conduct did not violate any of Joseph's constitutional rights.
Joseph would analogize his case to United States v. Ubiles, 224 F.3d 213 (3d Cir. 2000) (vacating conviction because gun should have been suppressed). Based on a citizens' tip, Ubiles was stopped, patted down, and found to be in possession of a firearm. Although 14 V.I.C. § 2253 makes it a felony to possess a firearm without first being authorized by law, the Court of Appeals nevertheless was able to find that it is presumptively legal to possess a gun in the Virgin Islands. Since the citizens' tip was only that Ubiles had a gun, not that it was unlicensed or defaced, the Court of Appeals held that the arresting officers had no reasonable, articulable suspicion that he was engaged in or planning to engaged in any criminal activity. See id. at 217-18. It is the absence of reasonable suspicion, as found by the Court of Appeals, that distinguishes Ubiles from the facts of Joseph's case. Even though parking alongside the road is not illegal in and of itself, it amounted to reasonable suspicion when coupled with such factors as the spate of recent burglaries and the car being registered to a police officer who was not sitting in it.
The Supreme Court has recognized that
an officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.
A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.
Adams v. Williams, 407 U.S. 143, 145-46 (1972) (citing Terry v. Ohio, 392 U.S. 1, 21-23 (1966)) (internal citations omitted).
2. Officer Querrard's Search of the Vehicle Was Lawful
Joseph next argues that his request to have Officer Querrard retrieve some personal effects was involuntarily given and thus the evidence seized during Officer Querrard's search is inadmissible. We find this argument unconvincing. The Supreme Court has addressed the issue of the voluntariness of a defendant's consent on numerous occasions. For example, in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Supreme Court stated that "[v]oluntariness is a question of fact to be determined from all circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent." Schneckloth, 412 U.S. at 248-49. The factors a court can look to, among other things, are the length of the detention and the repeated and prolonged nature of questioning. See id. at 226.
Although the Supreme Court limited the holding of Schneckloth to those situations when the defendant was not in custody, the Supreme Court's reasoning is persuasive to the matter at hand.
In addition, if the defendant is in custody, any responses made by the defendant to police questioning without being informed of his constitutional rights are inadmissible at trial. See Berkemer v. McCarty, 468 U.S. 420 (1984). A review of the record reveals that Joseph's request to have Officer Querrard retrieve his personal items was voluntarily given and thus the search was consensual. First, at the time of Joseph's request, his detention had been brief for no sooner had Officer Querrard taken Joseph to the INS office, Officer Querrard left to move the car. (J.A. at 22, 148.) Second, and more importantly, Joseph's request was at his own behest and not a response to any police questioning. (Id.) As there is no evidence that Officer Querrard coerced Joseph into consenting to the search and the record clearly shows that Joseph himself volunteered his consent, this Court finds the search consensual.
D. Territorial Court Did Not Err In Denying Appellant's Motion for Judgment Notwithstanding the Verdict
Joseph also argues that the trial court erred in denying his motion for judgment notwithstanding the verdict as the evidence at trial was insufficient to sustain a conviction. (Appellant Br. at 21-22.) Like the trial court, this Court must view Joseph's motion "in the light most favorable to the government and draw all reasonable inferences in the prosecution's favor." Lewis v. Government of the Virgin Islands, 77 F. Supp.2d 681, 684 (D.V.I. App. Div. 1999). If, after reviewing the evidence in such a light, a rational trier of fact could have found the defendant guilty beyond a reasonable doubt, the conviction will be upheld. See United States v. Jenkins, 90 F.3d 814, 817 (3d Cir. 1996). "A defendant challenging the sufficiency of the evidence bears a heavy burden." United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992). Only "when the record contains no evidence, regardless of how it is weighted, from which a jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict." United States v. Anderson, 108 F.3d 478, 481 (3d Cir. 1997) (citation and internal quotations omitted).
Joseph first points to the fingerprint report to establish that the evidence presented at trial was insufficient to sustain a conviction. This report noted that the fingerprint found on the envelopes containing the drugs was compared to the appellant's fingerprints, "but no identification was effected." (J.A. at 146.) Joseph asserts that this lack of identification denotes that the fingerprint was not his. (Appellant Br. at 22.) This Court refuses to interpret this report so narrowly. The record is ambiguous regarding what "no identification was effected" means. (J.A. at 7, 92.) It could have meant that the fingerprint was not Joseph's, but it could just have easily meant that the test was inconclusive. Giving the benefit of the doubt to the government as required in Lewis, this Court holds that the ambiguity over the fingerprint report is insufficient grounds to warrant overturning Joseph's conviction.
Joseph then argues that the trial court erred in finding that the car was in the appellant's exclusive control, when, in fact, there was a one-and-a-half to two hour period where Joseph had been removed from the area and the car was unguarded and unlocked. (Appellant Br. at 22.) Joseph implies that a third party could have entered the car and planted the drugs. Regardless of the possibility of such an event, a jury, with all of this information before it, found Joseph guilty beyond a reasonable doubt. See Anderson, 108 F.3d at 481. Therefore, Joseph's contention is insufficient to overturn his conviction. E. Ineffective Counsel Claim Is Not Yet Ripe for Review Based on the lack of a record below, Joseph's claim for ineffective counsel of trial counsel is not ripe for review on direct appeal. It must instead be raised in a collateral proceeding because the necessary facts about counsel's assistance have yet to be developed fully. See Rivera v. Government of the Virgin Islands, 37 V.I. 68, 79, 981 F. Supp. 893, 900 (D.V.I. App. Div. 1997). Therefore, we will not reach the issue of trial counsel's effectiveness at this time.
III. CONCLUSION
Joseph waived his Fourth Amendment claims by failing to file a suppression motion either before or during the trial. Moreover, the trial court did not commit plain error in admitting Officer Querrard's stop of Joseph and his later search of the appellant's car as evidence because neither admission affecting Joseph's substantial rights. Finally, as there was sufficient evidence on the record to find Joseph guilty beyond a reasonable doubt, the trial court did not err in denying Joseph's motion for judgment notwithstanding the verdict. Accordingly, this Court will affirm Joseph's conviction.
ORDER
For the reasons set forth in the foregoing Memorandum of even date, it is hereby
ORDERED that the appellant's conviction is hereby AFFIRMED.