APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (D.C. Criminal No. 3:10-cr-00022) Chief Judge: Honorable Curtis V. Gomez
The opinion of the court was delivered by: Greenaway, Jr., Circuit Judge.
Before: FISHER, GREENAWAY, JR., and ROTH, Circuit Judges.
After receiving a tip from a reliable source that individuals in a white Toyota Camry were carrying firearms, police officers in St. Thomas, Virgin Islands initiated a traffic stop of the vehicle. During the traffic stop, a firearm was discovered on the driver, Appellant Ahmoi Lewis (―Lewis‖). Before pleading guilty to two firearm offenses, Lewis unsuccessfully moved to suppress the firearm as the fruit of an unlawful search and seizure. We must determine whether the traffic stop was supported by the requisite reasonable suspicion of criminal activity under the Fourth Amendment based on either: (1) the illegal tints on the vehicle's windows; or (2) the tip that firearms were in the possession of the individuals in the vehicle. We hold that neither basis establishes the reasonable suspicion necessary for the traffic stop. Hence, the firearm discovered on Lewis should have been suppressed. We will vacate Lewis's judgment of conviction and sentence, reverse the denial of his motion to suppress, and remand for further proceedings.
On July 28, 2010, the District Court held a pretrial hearing on Lewis's motion to suppress. The first law enforcement officer to testify at the suppression hearing was Officer Evans Jackson (―Jackson‖), a peace officer employed in the enforcement section of the Virgin Islands Department of Planning and Natural Resources. Jackson testified that on April 9, 2010, he received a phone call from a reliable source stating that there were firearms in a white Toyota Camry, with the number ―181‖ in the license plate, located in the vicinity of the Gottlieb gas station. Jackson had known the source for approximately two years at the time and testified that he had received reliable information from the source in the past.*fn1 The phone call was brief, lasting approximately one minute. Jackson did not inquire about how the source learned of the information in the tip. More importantly, the source provided no details about the legal status of the firearms.
Jackson was traveling on foot at the time that he received the tip, without his patrol vehicle. He determined that he could not investigate the tip himself. Jackson called his partner, Officer Gerald Mercer (―Mercer‖), and asked to be picked up. Mercer was off-duty at the time, and Jackson instead asked Mercer whether any other officer was nearby. Mercer replied that Officer Kendelth Wharton (―Wharton‖) was next to him. Jackson spoke to Wharton and relayed the tip that he had received about the white Toyota Camry. Jackson had no further involvement in the traffic stop.
The only testimony at the suppression hearing specifically related to the traffic stop came from Officer Jose Mendez (―Mendez‖), an officer with the Virgin Islands Police Department. Mendez testified that he responded to a request for assistance from Wharton over the police radio system in the area of the Ulla Muller Elementary School. Mendez was the second officer to arrive on scene. Upon Mendez's arrival, Wharton had already initiated the traffic stop of Lewis's vehicle.*fn2 Wharton was positioned by the driver's side of the vehicle, and Mendez positioned himself by the passenger's side. Mendez observed that the vehicle was heavily tinted, preventing both him and Wharton from seeing how many occupants were inside.
Although the testimony was unclear as to how many occupants were inside the vehicle, Lewis was the driver and Jesus Grant (―Grant‖), Lewis's co-defendant, was in the front passenger's seat. Lewis and Grant were ordered out of the vehicle individually. Based on their respective positions on the street, Wharton handled Lewis when he exited the vehicle, while Mendez handled Grant. When Mendez asked Grant if he had any weapons on him, Grant became argumentative, a struggle ensued, and Mendez eventually placed Grant in handcuffs. Upon frisking him for weapons, Mendez discovered a hard object in Grant's waist area. Mendez searched further and discovered a firearm on Grant, at which point Mendez placed Grant under arrest. Mendez had no knowledge of Wharton's interaction with Lewis but noted that Lewis also was placed under arrest.
On cross-examination, Lewis's counsel questioned Mendez about whether Wharton provided any information about why he initiated the traffic stop of the vehicle:
Q. [W]hat did you hear on the
[Wharton] needed assistance for a traffic stop?
A. Well, to my understanding,
I don't know what was his reasons to make that stop. All I responded was [a] request of a fellow officer, he ...