Dove v. York County, PA et al

Filing 36

MEMORANDUM (Order to follow as separate docket entry) re 1 Petition for Writ of Habeas Corpus filed by Ronald A. Dove Signed by Honorable Malachy E Mannion on 11/15/13. (bs) (Additional attachment(s) added on 11/15/2013: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s)) (bs).

Page 1
Not Reported in F.Supp.2d, 2008 WL 2625634 (D.Virgin Islands), 50 V.I. 366
(Cite as: 2008 WL 2625634 (D.Virgin Islands))

FOR PUBLICATION
District Court of the Virgin Islands, Division of St.
Thomas and St. John.
UNITED STATES of America and the People of the
Virgin Islands, Plaintiffs,
v.
Ronald LEWIS, Jr. and Malik Ostalaza, Defendants.
Criminal No. 2008–21.
July 2, 2008.
Ishmael A. Meyers, Jr., AUSA, St. Thomas, U.S.V.I., For
the plaintiffs.
George H. Hodge, Jr., Esq., St. Thomas, U.S.V.I., For
defendant Ronald Lewis, Jr.
Jesse A. Gessin, AFPD, St. Thomas, U.S.V.I., For
defendant Malik Ostalaza.
MEMORANDUM OPINION
GÓMEZ, C. J.
*1 Before the Court is the motion of the defendants,
Ronald Lewis, Jr. (“Lewis”) and Malik Ostalaza
(“Ostalaza”) (together, the “Defendants”), to suppress
physical evidence and statements.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Defendants were indicted in May, 2008 on five
firearms-related offenses. On June 18, 2008, the Court
conducted a hearing on the Defendants' motion to
suppress. At that hearing, the government presented the
testimony of Virgin Islands law enforcement officers.
According to that testimony, on February 20, 2008, four
Virgin Islands police officers were searching for a robbery
suspect in an area known as the Tutu High Rise Housing
Community on St. Thomas, U.S. Virgin Islands. During
their search, the officers observed a red car exiting the
housing community. One of the officers noticed that the
occupants of the car were not wearing seatbelts and that

the passenger, Ostalaza, was bending down in his seat.
The officers pulled the car over behind a nearby school.
Over the loudspeaker, the officers ordered the driver,
Lewis, to prepare his driver's license, vehicle registration
and insurance information, and to step outside the car.
Lewis exited the car and walked over to the officers'
vehicle.
While the officers were inspecting Lewis's documents,
Ostalaza exited the car of his own accord and began
walking away from the premises. The officers called him
back. One of the officers approached the car, looked
inside, and saw an extended magazine clip, which he
called to his colleagues' attention.
That officer then grabbed Ostalaza's hand and
escorted him to the rear of the vehicle, near the trunk.
Another officer then approached the car, looked inside,
and saw the butt of a firearm protruding from the center
console. One of the officers proceeded to retrieve that
firearm, and discovered another firearm behind it. The
officers subsequently asked the Defendants if they had
licenses to possess firearms. The Defendants both
answered in the negative. The Defendants were
immediately read their Miranda rights and placed under
arrest.
II. ANALYSIS
The Defendants contend that (1) the physical
evidence seized from their car and (2) the statements they
made to police officers should be suppressed.
A. Seizure of Physical Evidence
The Defendants first argue that the physical evidence
seized from their car should be suppressed as the product
of an unreasonable search.
The Fourth Amendment protects citizens “against
unreasonable searches and seizures.” U.S. Const., amend.
IV. 2. “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

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2
Not Reported in F.Supp.2d, 2008 WL 2625634 (D.Virgin Islands), 50 V.I. 366
(Cite as: 2008 WL 2625634 (D.Virgin Islands))

requirement that searches or seizures 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)
(“[S]earches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only
to a few specifically established and well-delineated
exceptions.”) (internal citations omitted). Once the
defendant has challenged the legality of a search and
seizure, the burden is on the government to prove that they
were constitutional. United States v. Johnson, 63 F.3d
242, 245 (3d Cir.1995), cert. denied, 518 U.S. 1007, 116
S.Ct. 2528, 135 L.Ed.2d 1052 (1996). Evidence arising
out of an unlawful search will be suppressed. Wong Sun
v. United States, 371 U.S. 471, 484–85, 83 S.Ct. 407, 9
L.Ed.2d 441 (1963).
*2 Although individuals have a reduced expectation
of privacy in motor vehicles due to the high level of
regulation to which they are subject, California v. Carney,
471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406
(1985), the stop of a car and detention of its occupants
constitutes a seizure within the meaning of the Fourth
Amendment. Whren v. United States, 517 U.S. 806,
809–10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Johnson,
63 F.3d at 245. Accordingly, such a stop is “subject to the
constitutional imperative that it not be ‘unreasonable’
under the circumstances.” Whren, 517 U.S. at 810. In
determining whether a traffic stop is reasonable a court
must make two inquiries: first, “whether the officer's
action was justified at its inception,” and second, “whether
it was reasonably related in scope to the circumstances
which justified the interference in the first place.” Terry v.
Ohio, 392 U.S. 1, 19–20, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968). If the initial traffic stop was illegal or the officers
exceeded the stop's proper scope, the seized contraband is
excluded under the “fruit of the poisonous tree doctrine.”
See Wong Sun, 371 U.S. at 484.
“[A] traffic stop is lawful under the Fourth
Amendment where a police officer observes a violation of
the state traffic regulations .” United States v. Moorefield,
111 F.3d 10, 12 (3d Cir.1997); see also Whren, 517 U.S.
at 810 (holding that traffic stops are reasonable under the
Fourth Amendment where officers have probable cause to
believe that the defendant violated the traffic code, even

if the ultimate charge is not related to the traffic stop).
Here, the government presented testimony
establishing that Virgin Islands police officers observed
the Defendants in a moving vehicle without wearing their
seatbelts. The Defendants' conduct was in violation of
Virgin Islands law. See V.I. CODE ANN. tit. 20, § 466(a)
(Lexis 2008) (“No person shall operate a motor vehicle
unless the operator and any passenger in the front seat of
the vehicle are restrained by a safety belt.”). The officers'
testimony was unrebutted. Because the Court finds that
testimony credible, the Court further finds that the officers'
actions were justified, at least at the outset. See, e.g.,
United States v. Hanrahan, 508 F.3d 962, 967 (10th
Cir.2007) (affirming the denial of a suppression motion
where the district court found the officer's “testimony
credible and therefore determined that the stop was
warranted because he had reasonable suspicion that” the
defendant had violated a state traffic law), cert. denied,
552 U.S. 1302, 128 S.Ct. 1753, 170 L.Ed.2d 550 (2008);
Boggs v. Bair, 892 F.2d 1193, 1200 (4th Cir.1989)
(holding that the defendant's fruit of poisonous tree
argument failed because the search of the car was lawful),
cert. denied, 495 U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d
521 (1990).
If a traffic stop is “justified at its inception, an officer
who develops a reasonable, articulable suspicion of
criminal activity may expand the scope of an inquiry
beyond the reason for the stop and detain the vehicle and
its occupants for further investigation.” United States v.
Givan, 320 F.3d 452, 459 (3d Cir.2003) (citation omitted).
“While ‘reasonable suspicion’ must be more than an
inchoate ‘hunch,’ the Fourth Amendment only requires
that police articulate some minimal, objective justification
for an investigatory stop.” Id. (citation omitted). “In
determining whether there was a basis for reasonable
suspicion, a court must consider the totality of the
circumstances, in light of the officer's experience.” Id.
(citation omitted); see also Maryland v. Macon, 472 U.S.
463, 470–71, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985)
(“Whether a Fourth Amendment violation has occurred
‘turns on an objective assessment of the officer's actions in
light of the facts and circumstances confronting him at the
time ....‘ ”) (quoting Scott v. United States, 436 U.S. 128,
136, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)).

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 3
Not Reported in F.Supp.2d, 2008 WL 2625634 (D.Virgin Islands), 50 V.I. 366
(Cite as: 2008 WL 2625634 (D.Virgin Islands))

*3 Here, the officers lawfully stopped the Defendants
for a traffic violation, and thus were lawfully next to the
Defendants' car when they observed, in plain view, an
extended ammunition magazine and the butt of a firearm
protruding from the center console of the car.FN1 While the
open carrying of a weapon may be legal in the Virgin
Islands, it is well established that otherwise legal or
innocent conduct may still create a reasonable suspicion
that criminal activity is afoot. See United States v.
Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1
(1989) (“[T]he relevant inquiry is not whether particular
conduct is ‘innocent’ or ‘guilty,’ but the degree of
suspicion that attaches to particular types of noncriminal
acts.”) (internal quotation marks and citation omitted);
United States v. Brown, 448 F.3d 239, 252 (3d Cir.2006)
(noting that “legal, innocent behavior at times
corroborates other information to raise reasonable
suspicion”).
FN1. At the hearing, Lewis argued that the Court
of Appeals for the Third Circuit's recent decision
in United States v. Daniel, 518 F.3d 205 (3d
Cir.2008), forecloses the possibility that the
officers in this matter could base reasonable
suspicion on their observation of ammunition.
Lewis's reliance on Daniel is misplaced. First, in
Daniel, the Third Circuit essentially held that no
person could be convicted under the Virgin
Islands statute criminalizing the unlawful
possession of ammunition. That holding cannot
be said to bear on whether police officers may
have reasonable suspicion that criminal activity
is afoot when they see ammunition. Second, the
testimony in this matter reflects that the officers
saw not only ammunition, but a firearm.
The Defendants' conduct during their encounter with
the officers lends further support to a finding of reasonable
suspicion. For example, the officers observed Ostalaza
bending down in his seat when they stopped the
Defendants' car. The officers reasonably could have
perceived that conduct as furtive or evasive. See, e.g .,
United States v. Powell, 176 Fed. Appx. 267, 269 (3d
Cir.2006) (unpublished) (affirming the denial of a
suppression motion where the record showed, inter alia,

that the defendant had displayed “furtive movements”),
cert. denied, 549 U.S. 863, 127 S.Ct. 151, 166 L.Ed.2d
110 (2006); United States v. Edmonds, 240 F.3d 55, 61
(D.C.Cir.2001) (recognizing that “ ‘furtive’ gestures in
response to the presence of the police can serve as the
basis of an officer's reasonable suspicion”); U.S. ex rel.
Richardson v. Rundle, 461 F.2d 860, 864 (3d Cir.1972)
(noting that “the significance of furtive actions ... is ...
applicable to” Terry stops, and may constitute the basis of
individualized suspicion sufficient to justify a Terry stop),
cert. denied, 410 U.S. 911, 93 S.Ct. 971, 35 L.Ed.2d 273
(1973).
Furthermore, while Lewis was showing his documentation
to officers near the officers' car, Ostalaza exited the car in
which he had been riding and began walking away from
the premises as if, according to the officers' testimony, he
were “fleeing.” One of the officers had to walk over to the
Defendants' car and order Ostalaza to return to the scene
of the stop. It was only at that moment that the officer
noticed the magazine.
Courts routinely take into consideration a suspect's flight
when making reasonable suspicion determinations. See,
e.g., Illinois v. Wardlow, 528 U.S. 119, 125–26, 120 S.Ct.
673, 145 L.Ed.2d 570 (2000) (reasoning that flight upon
noticing police, plus some other indicia of wrongdoing,
can constitute reasonable suspicion); United States v.
Bonner, 363 F.3d 213, 217 (3d Cir.2004) (considering the
suspect's flight); United States v. Shorter, 36 Fed. Appx.
691 (3d Cir.2002) (unpublished) (affirming the district
court's denial of the defendant's suppression motion where
the police “had reasonable suspicion that he was involved
in criminal activity” when they saw his “conduct and his
fleeing”); United States v. Lender, 985 F.2d 151, 154 (4th
Cir.1993) (“Evasive conduct, although stopping short of
headlong flight, may inform an officer's appraisal of a
streetcorner encounter.”); United States v. Singleton,
Crim. No. 07–282, 2008 U.S. Dist. LEXIS 42368, at *8,
2008 WL 2323487 (W.D.N.C. May 29, 2008) (finding
support for a reasonable suspicion finding where “the
Defendant made a 180 degree turn and began walking
away”).
*4 Based on Ostalaza's bending down in the car and
subsequent unprovoked, evasive maneuvering, as well as

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 4
Not Reported in F.Supp.2d, 2008 WL 2625634 (D.Virgin Islands), 50 V.I. 366
(Cite as: 2008 WL 2625634 (D.Virgin Islands))

the officers' observation of an extended magazine and a
partially-concealed firearm, the Court finds that the
officers could reasonably suspect that criminal activity
was afoot. The Court further finds that the officers'
relatively brief detention of the Defendants was reasonably
tailored to dispel any suspicions the officers may have had
concerning the Defendants' potential involvement in
criminal activity, that is, whether the Defendants
possessed firearms in violation of statute. See, e.g., United
States v. Scheets, 188 F.3d 829, 838 (7th Cir.1999)
(finding that the officers' questions “were specifically
tailored to establish [the defendant's] identity and either to
confirm or dispel the officers' suspicions regarding [the
defendant's] involvement in the bank robbery”) (citation
omitted), cert. denied, 528 U.S. 1096, 120 S.Ct. 837, 145
L.Ed.2d 703 (2000).
Furthermore, the officers' shift from questions relating
to the Defendants' traffic violation to questions relating to
whether the Defendants had licenses to possess firearms,
did not require independent reasonable suspicion because
those latter questions in no way prolonged the stop.FN2 See
Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 161
L.Ed.2d 299 (2005) (holding that “mere police
questioning does not constitute a seizure” unless it
prolongs the detention of the individual); Illinois v.
Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d
842 (2005) (rejecting the proposition that the shift in
purpose of a traffic stop into an investigation of other
criminal activity was unlawful because it was not
supported by any reasonable suspicion); United States v.
Mendez, 476 F.3d 1077, 1080 (9th Cir.2007) (reasoning
that because “the officers' questioning did not prolong the
stop, we are compelled to hold that the expanded
questioning need not have been supported by separate
reasonable suspicion”), cert. denied, 550 U.S. 946, 127
S.Ct. 2277, 167 L.Ed.2d 1112 (2007).
FN2. Indeed, the duration of the officers'
questioning of the Defendants could hardly have
been briefer. Such brevity weighs against a
finding that the Defendants were seized. See,
e.g., United States v. Bengivenga, 845 F.2d 593,
600 (5th Cir.1988) (noting that law enforcement
agents questioned the suspects for only “a minute
and a half”), cert. denied, 488 U.S. 924, 109

S.Ct. 306, 102 L.Ed.2d 325 (1988); Williams v.
United States, 381 F.2d 20, 21 (9th Cir.1967)
(considering “the brief interrogation” of the
defendants).
Once the Defendants answered the officers' question
about their unlicensed possession of firearms in violation
of statute, the officers had probable cause to believe that
the Defendants had committed a crime. See, e.g., United
States v. Muhammad, 120 F.3d 688, 696 (7th Cir.1997)
(“Probable cause [to arrest] exists when at the moment an
arrest is made officers have ‘facts and circumstances
within their knowledge and of which they [have]
reasonably trustworthy information’ that would
sufficiently ‘warrant a prudent man in believing that the
[suspect] had committed or was committing the offense.’
”) (alterations in original) (quoting Beck v. Ohio, 379 U.S.
89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)); United
States v. Brady, 819 F.2d 884, 889 (9th Cir.1987) (finding
that officers had probable cause based on the detainee's
answer affirmative answer to the question whether he had
a gun in his car), cert. denied, 484 U.S. 1068, 108 S.Ct.
1032, 98 L.Ed.2d 996 (1988); cf. Berkemer v. McCarty,
468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317
(1984) (“[U]nless the detainee's answers provide the
officer with probable cause to arrest him, he must then be
released.”). Accordingly, the officers read the Defendants
their Miranda rights. Because the officers' arrest of the
Defendants was supported by probable cause based on the
officers' having learned that the Defendants were in
unauthorized possession of firearms, the officers were
entitled to conduct a search incident to that arrest. See
Maryland v. Pringle, 540 U.S. 366, 370, 124 S.Ct. 795,
157 L.Ed.2d 769 (2003) (noting that the Fourth
Amendment permits warrantless arrests based upon
probable cause); United States v. Watson, 423 U.S. 411,
423–24, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (same);
United States v. Nigro, 218 Fed. Appx. 153, 156–57 (3d
Cir.2007) (not precedential) (“If there is an objective basis
for the arresting officer to fear the arrestee or the
surrounding environment, a search of the area where the
arrest occurred is a search incident to arrest.”) (internal
quotation marks, citations and alteration omitted), cert.
denied, 550 U.S. 925, 127 S.Ct. 2145, 167 L.Ed.2d 875
(2007).

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 5
Not Reported in F.Supp.2d, 2008 WL 2625634 (D.Virgin Islands), 50 V.I. 366
(Cite as: 2008 WL 2625634 (D.Virgin Islands))

*5 “[A] search incident to arrest has both geographic
and temporal limitations.” United States v. Myers, 308
F.3d 251, 266 (3d Cir.2002). “A legitimate search incident
to arrest is limited to the arrestee's person and to the area
within his immediate control, meaning the area from
which he might gain possession of a weapon or
destructible evidence.” Id. at 267 (quoting United States
v. Hudson, 100 F.3d 1409, 1419 (9th Cir.1996) (internal
quotation marks and citation omitted), cert. denied, 522
U.S. 939, 118 S.Ct. 353, 139 L.Ed.2d 274 (1997)).
Here, the officers searched the Defendants' car after
arresting the Defendants. That search was valid because it
occurred immediately after the Defendants' arrest and
covered a circumscribed area—that is, the car—to which
the Defendants could have regained access, for instance,
to recover weapons. See, e.g., New York v. Belton, 453
U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)
(holding that, when a policeman has made a lawful
custodial arrest of the occupant of an car, he may, as a
contemporaneous incident of that arrest, search the
passenger compartment of that car); United States v.
Baker, 221 F.3d 438, 443 (3d Cir.2000) (noting that
“officers may lawfully search the passenger compartment
of the car incident to arrest”) (citation omitted); United
States v. Bush, 647 F.2d 357, 361 (3d Cir.1981)
(concluding that the arrest of the suspect “was supported
by probable cause, and that the subsequent search of [the
suspect] was a legitimate search incident to arrest”).
Accordingly, the Court concludes that suppression of
the physical evidence seized from the Defendants' car is
unwarranted.
B. Statements
The Defendants contend that their statements to the
officers should also be suppressed as the product of an
unlawful custodial interrogation.
The “inherently coercive” environment created by police
custodial interrogation threatens the exercise of the Fifth
Amendment privilege against self-incrimination. New York
v. Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 81 L.Ed.2d
550 (1984). When a defendant is subject to custodial
interrogation by the police, procedural safeguards are
necessary to preserve the defendant's Fifth Amendment

privilege against compelled self-incrimination. Miranda v.
Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966) (holding that absent procedural safeguards,
there is an irrebuttable presumption of coercion when a
defendant is interrogated while in police custody).
In Yarborough v. Alvarado, the Supreme Court gave
the following description of the test for Miranda custody
purposes:
Two discrete inquiries are essential to the
determination: first, what were the circumstances
surrounding the interrogation; and second, given those
circumstances, would a reasonable person have felt that
he or she was not at liberty to terminate the
interrogation and leave. Once the scene is set and the
players' lines and actions are reconstructed, the court
must apply an objective test to resolve the ultimate
inquiry: was there a ... restraint on freedom of
movement of the degree associated with a formal arrest.
*6 541 U.S. 652, 663, 124 S.Ct. 2140, 158 L.Ed.2d
938 (2004) (quoting Thompson v. Keohane, 516 U.S. 99,
112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (quotation
marks omitted)).
Factors to be considered when determining whether
an interrogation takes on custodial dimensions include:
(1) whether the officers told the suspect he was under
arrest or free to leave; (2) the location or physical
surroundings of the interrogation; (3) the length of the
interrogation; (4) whether the officers used coercive
tactics such as hostile tones of voice, the display of
weapons, or physical restraint of the suspect's
movement; and (5) whether the suspect voluntarily
submitted to questioning.
United States v. Willaman, 437 F.3d 354, 359–60 (3d
Cir.2006) (citations omitted), cert. denied, 547 U.S. 1208,
126 S.Ct. 2902, 165 L.Ed.2d 919 (2006).
Here, as discussed above, the Defendants were
initially detained pursuant to a lawful Terry stop because
the officers had reasonable suspicion that criminal activity
was afoot. “Such Terry-stops do not render a person in

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 6
Not Reported in F.Supp.2d, 2008 WL 2625634 (D.Virgin Islands), 50 V.I. 366
(Cite as: 2008 WL 2625634 (D.Virgin Islands))

custody for purposes of Miranda.” United States v.
Galberth, 846 F.2d 983, 994 (5th Cir.1988) (citations
omitted), cert. denied, 488 U.S. 865, 109 S.Ct. 167, 102
L.Ed.2d 137 (1988); see also United States v. Bengivenga,
845 F.2d 593, 599 (5th Cir.1988) (en banc) (“[W]here an
officer asked a motorist to step out of his car and to
perform a sobriety test, simply asking passengers to step
off a bus and inquiring about ownership of luggage does
not render a suspect in custody.”), cert. denied, 488 U.S.
924, 109 S.Ct. 306, 102 L.Ed.2d 325 (1988).
Incident to such a stop, police officers are entitled to
ask questions of a suspect “as long as the[y] ... do not
convey a message that compliance with their requests is
required.” Florida v. Bostick, 501 U.S. 429, 435, 111
S.Ct. 2382, 115 L.Ed.2d 389 (1991). The record in this
matter does not suggest that any such message was
conveyed. Nor do the Defendants contend that they felt
constrained to answer the officers' questions. As such, the
officers' questioning did not by itself transform the
officers' lawful stop of the Defendants into a custodial
scenario. See, e.g., Ohio v. Robinette, 519 U.S. 33, 117
S.Ct. 417, 136 L.Ed.2d 347 (1996); United States v.
Childs, 277 F.3d 947, 954 (7th Cir.2002) (en banc)
(holding that the nature of the second question posed by
an officer—whether the suspect was carrying any
marijuana—did not convert an otherwise permissible
traffic stop detention into a custodial interrogation), cert.
denied, 537 U.S. 829, 123 S.Ct. 126, 154 L.Ed.2d 43
(2002). Indeed, the credible and unrebutted testimony at
the suppression hearing indicates that the Defendants
voluntarily answered the officers' questions. See, e.g.,
United States v. Francis, 140 Fed. Appx. 184, 187 (11th
Cir.2005) (not for publication) (concluding that the
defendant was not in custody where the record showed
that he had “voluntarily consented to answer the officer's
questions”), cert. denied, 546 U.S. 1045, 126 S.Ct. 764,
163 L.Ed.2d 593 (2005).
Moreover, other elements in the record do not bear
the hallmarks of a custodial interrogation. For instance, the
stop took place during the day behind a school, near a
housing community and in full view of any passerby,
thereby reducing the ability of the officers to use
illegitimate means to elicit inculpatory statements and
diminishing the Defendants' fear that if they did not

cooperate they would be subjected to abuse. Berkemer,
468 U.S. at 438; cf. United States v. Perdue, 8 F.3d 1455,
1466 (10th Cir.1993) (concluding that the defendant was
entitled to Miranda warnings where, inter alia, [t]he Terry
stop occurred in an isolated, rural area not subject to the
public's scrutiny”). There is also no evidence that the
officers physically restrained the Defendants beyond
patting them down for safety reasons, spoke to them in
harsh or coercive tones, or warned them that they might be
taken to a police station.FN3 Cf. United States v. Delano,
543 F.Supp.2d 791, 801 (N.D.Ohio 2008) (finding a de
facto arrest where the officer asked the defendant to get
out of the car, handcuffed her and informed her that he
would be taking her to the police station).
FN3. That Ostalaza was summoned back by
police after walking away from the premises does
not mean he was not free to leave for Miranda
purposes, since an officer's order that a suspect
stay in his car or exit his car during a routine
traffic stop does not by itself give rise to a
custodial scenario. See, e.g., Pennsylvania v.
Mimms, 434 U.S. 106, 111 n. 6, 98 S.Ct. 330, 54
L.Ed.2d 331 (1977) (“[O]nce a motor vehicle has
been lawfully detained for a traffic violation, the
police officers may order the driver to get out of
the vehicle....”); United States v. Sowers, 136
F.3d 24, 28 (1st Cir.1998) (finding that an order
to remain within the stopped vehicle “was not
onerous”) (citations omitted), cert. denied, 525
U.S. 841, 119 S.Ct. 105, 142 L.Ed.2d 84 (1998).
*7 Viewing the facts of this matter under the totality
of the circumstances, the Court finds that the Defendants
were not “restrained to the degree associated with formal
arrest.” See, e.g., United States v. Killingsworth, 118 Fed.
Appx. 649, 651 (3d Cir.2004) (unpublished). As a
consequence, the Court concludes that the Defendants
were not in custody for Miranda purposes when they
answered the officers' question whether they had licenses
to possess weapons. See, e.g., Willaman, 437 F.3d at 360
(concluding that because the defendant was not in custody,
“[o]f course, in these circumstances Miranda is not
implicated”).
Accordingly, the Defendants' statements will not be

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 7
Not Reported in F.Supp.2d, 2008 WL 2625634 (D.Virgin Islands), 50 V.I. 366
(Cite as: 2008 WL 2625634 (D.Virgin Islands))

suppressed.FN4
FN4. Despite the Court's finding that suppression
is inappropriate in this matter, one additional
point bears mentioning. At the suppression
hearing, the government appeared to argue that
the police officers' conduct was a result of law
enforcement's interpretation of rulings from the
Superior Court of the Virgin Islands. The
government's argument is flawed to the extent it
suggests that this Court's rulings on constitutional
matters should conform to law enforcement's
expectations and interpretations of judicial
opinions. The Court thus reminds the
government that its burden on a suppression
motion is to establish that law enforcement's
conduct is
III. CONCLUSION
For the reasons given above, the Defendants' motion
to suppress will be denied in its entirety. An appropriate
order follows.
D.Virgin Islands,2008.
U.S. v. Lewis
Not Reported in F.Supp.2d, 2008 WL 2625634 (D.Virgin
Islands), 50 V.I. 366
END OF DOCUMENT

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.