APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (D.C. Nos. 04-cr-00117-1 and 04-cr-00117-2). District Judge: The Honorable Raymond L. Finch.
The opinion of the court was delivered by: Nygaard, Circuit Judge.
BEFORE: SCIRICA, Chief Judge, MCKEE and NYGAARD, Circuit Judges.
The United States of America ("government") appeals from the order of the District Court of the Virgin Islands granting defendants Jeffrey Ramos and Samuel Acosta's motion to suppress evidence. Because there was reasonable suspicion justifying the stop, we will reverse.
Members of the Street Enforcement Team of the Virgin Islands Police Department were patrolling the Castle Coakley area in an unmarked SUV when they observed two vehicles, a van and a Honda Accord, parked next to each other in the parking lot of a night club.*fn1 Upon passing in- between the vehicles, one member of the team, Officer Huertas, testified that when he got to within three to four feet of the passenger side of the Honda, he smelled "marijuana smoke" through his open window. He also testified that the Honda's window closest to the officers' car was partially open.
The Enforcement Team then drove past the two vehicles and parked forty or fifty feet away. Soon thereafter the Honda left the parking lot, passing by the Enforcement Team's vehicle as it left. After the Honda passed the Enforcement Team's vehicle the Team decided to make a traffic stop and pulled over the Honda. The officers ordered defendant Acosta out of the driver's side of the car and he exited with his driver's license and registration in hand.
Defendant Ramos then apparently exited, according to Huertas, "in a hostile manner, shaking, waving his hands," and asking, "what the fuck you all stop me for?" An officer then searched Ramos for weapons and found a magazine clip in his pocket. Then, as Officer Huertas inspected the vehicle for other occupants, he smelled marijuana and saw smoke coming from a small black cup. Additionally, he saw a chrome .357 pistol in the car. After the car was searched, a second pistol was located under the seat as well as two marijuana cigarettes, a measuring scale, and baggies. After the weapons were found, the officers arrested both defendants and administered their Miranda rights.
The government charged the defendants on various weapons possession counts. The defendants moved to suppress all physical evidence and statements obtained as a result of the stop. They claimed that the stop violated their Fourth Amendment rights and, additionally, that any statements made were obtained in violation of their Fifth and Sixth Amendment rights. The government responded that the officers had probable cause to effectuate the stop based alternatively on the fact that the Honda had committed a traffic violation and that the officers had seen smoke and smelled marijuana as they passed the vehicles.
After a hearing, the District Court granted defendants' motion, ruling that the government did not have probable cause to stop the defendants' car.*fn2 In so doing, the District Court found that there was no articulable suspicion of a traffic violation and that the marijuana smell was neither articulable nor particularized to the Honda such that it established, by a preponderance of the evidence, probable cause. The government timely filed a notice of appeal.*fn3
At the hearing, the government unsuccessfully contended that the defendants' traffic violation established probable cause to execute the stop and subsequent searches. On appeal, the government does not challenge the District Court's probable cause analysis. Rather, they contend that even if there was no probable cause, there existed reasonable suspicion and therefore the stop was justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.E.2d 889 (1968).*fn4
According to the government, once Officer Huertas and the other officers detected the marijuana odor, they had reasonable suspicion to effectuate the stop of defendants' car. Defendants argue in response that the marijuana odor was not particularized to their car and that, therefore, reasonable suspicion could not exist. Because we ...