USA v. Archibald et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
UNITED STATES OF AMERICA and )
PEOPLE OF THE VIRGIN ISLANDS, )
) Criminal Action No. 2015-0041
v. )
)
PHILMORE TREVOR ARCHIBALD, )
)
Defendant. )
__________________________________________)
Attorneys:
Rhonda Williams-Henry, Esq.,
St. Croix, U.S.V.I.
For the Government
Omodare B. Jupiter, Esq.,
St. Croix, U.S.V.I.
For Defendant
MEMORANDUM OPINION
Lewis, Chief Judge
THIS MATTER comes before the Court on Defendant’s “Motion to Suppress Physical
Evidence and Statements,” filed on February 16, 2016, wherein Defendant seeks to suppress: (1)
his statements made on September 23, 2015; (2) photographs taken on September 23, 2015; (3)
DNA samples provided on September 23, 2015; (4) his cell phone—and its contents—seized on
September 24, 2015; and (5) his statements made on September 24, 2015. (See Dkt. No. 21). The
Government filed an Opposition on February 25, 2016 (Dkt. No. 29), and an evidentiary hearing
was held on April 15, 2016. For the reasons discussed below, the Court will deny Defendant’s
Motion.
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I. FACTUAL BACKGROUND1
On December 15, 2015, Defendant Philmore Trevor Archibald (“Defendant”) was charged
in a four-count Indictment, along with one other person, with Carjacking, in violation of 18 U.S.C.
§ 2119(1); Aggravated Rape First Degree, in violation of 14 V.I.C. §§ 1700(c), 1701(a)(2),
1701(a)(3); Kidnapping for Rape, in violation of 14 V.I.C. § 1052(b); and Kidnapping for Robbery,
in violation of 14 V.I.C. § 1052(a). (See Dkt. No. 1). At a suppression hearing held on April 15,
2016, the parties, relying on the factual record established at a suppression hearing held on
February 26, 2016 (see Dkt. No. 52 (Suppression Hr’g Tr.),2 presented oral argument on
Defendant’s “Motion to Suppress Physical Evidence and Statements.” The facts, according to
Detective Naomi Joseph of the Virgin Islands Police Department, the sole witness called by the
Government to testify at the February 26, 2016 hearing, are as follows.3
Detective Naomi Joseph, who has been employed with the Virgin Islands Police
Department (“VIPD”) for thirty years, testified that just before midnight on September 17, 2015,
a heterosexual couple—S.S., the female, and T.P., the male—were leaving an apartment on the
third floor of building 55 of the Mutual Homes housing community in Estate Grove Place
(“Grove”) on St. Croix, Virgin Islands. (Dkt. No. 52 at 6-7). In the vicinity of the building’s
staircase, S.S. and T.P. were approached at knife-point by two black males—one light-skinned
with dreadlocks and the other dark-skinned with a short afro—who demanded money from them.
1 The Court bases the factual background in this section on the record established at a suppression hearing held on
February 26, 2016. The Court provides this information solely for the purpose of this pretrial motion, ever mindful
that Defendant is presumed innocent until proven guilty. Most of the facts discussed herein are alleged, but at this
stage not conceded or proven beyond a reasonable doubt to the factfinder.
2 The February 26, 2016 suppression hearing addressed Defendant’s “Motion to Suppress Identification” (Dkt. No.
7), which was denied by Order of the Court on April 14, 2016 (Dkt. No. 60).
3 Officer Robert Combie of the Virgin Islands Police Department and S.S., one of the victims in this case, were called
by the defense to testify at the February 26, 2016 hearing. However, their testimony is not relevant to the instant
Motion to Suppress. Therefore, the Court will not include their testimony in the following factual discussion.
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(Id.). The men took and searched S.S.’s bag, but found only $5.00 in cash and a small amount of
“hash.” (Id. at 7-8).
The men forced S.S. and T.P.—at knife-point—down the stairs to S.S. and T.P.’s vehicle.
(Id. at 8). Both S.S. and T.P. were forced into the back seat. (Id.). Defendant—described as “the
big guy”—also got into the back seat and sat in between S.S. and T.P. (Id. at 8-9). The other male,
who has been identified as Sixtus Emmanuel (“Emmanuel”), got into the front driver’s seat and
drove the vehicle out of the housing community. (Id.). For the next hour and a half, S.S. and T.P.
were physically and sexually assaulted by both men inside and outside of the vehicle. (Id. at 9-12).
T.P. was able to escape during an unsuccessful attempt by Emmanuel to have T.P.
withdraw money from an ATM machine at the Sunny Isle shopping center. (Id. at 13-16). T.P.
then called 911 around 1:15 a.m. on the morning of September 18, 2015 to report the incident. (Id.
at 17). Meanwhile, S.S. escaped from the vehicle in a residential area, and called 911 around 1:34
a.m. that same morning. (Id. at 19-20). The police responded and took S.S. to the hospital where
she met Detective Joseph. (Id. at 20).4
At the hospital, Detective Joseph got a description of Defendant and Emmanuel from S.S.
(Id. at 21).5 S.S. described Emmanuel as young—in his early twenties—dark-skinned and slender
with a short afro. (Id.). She described Defendant as a tall, light-skinned, medium-built black male
with dreadlocks. (Id.). She said he had tattoos on his arms and that she remembered the star of
David—the six-point star—and hieroglyphics on one of his forearms. (Id.). S.S. informed
Detective Joseph that she had seen Defendant earlier in the day on September 17, 2015 standing
in front of building 55. (Id.). She explained that on her way back from the community center with
4 T.P. also met Detective Joseph at the hospital. (Dkt. No. 52 at 20).
5 T.P. also gave a description of Defendant and Emmanuel to Detective Joseph. However, at the suppression hearing,
Detective Joseph explained that S.S. gave a “more clear and concise” description of the suspects. (Dkt. No. 52 at 48).
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her roommate, Defendant hissed at her trying to get her attention. (Id. at 22). She said that
Defendant told her that she looked good. (Id.). Out of courtesy, S.S. stated that she waved, but kept
walking towards her apartment. (Id.).
On September 22, 2015, Detective Joseph received a tip from a concerned citizen who
informed her that one of the suspects was a sex offender who had recently been released from jail
on a rape conviction, and that his name was Philmore Archibald. (Id.). Upon learning this
information, Detective Joseph testified that she searched the sex offender registry with the name
she was provided and discovered a photograph of “a red skin Rasta male, medium built with the
star of David and [] writings on [his] arms.” (Id. at 23). Detective Joseph explained that the
photograph of the individual on the registry matched the name she received from the concerned
citizen and the description she received from S.S., including the location of the tattoos on his body.
(Id.).6 At the suppression hearing, Detective Joseph identified Defendant as the individual she saw
on the sex offender registry. (Id. at 24).
Around 9:00 p.m. on September 23, 2015, Detective Joseph, along with three other VIPD
officers, went to the Mutual Homes housing community looking for Defendant. (Id. at 24-25, 86).
They located him sitting on a wall by building 49 with two other men drinking alcohol. (Id. at 25-
26). Detective Joseph testified that, once she and the other officers spotted Defendant, they parked
the police car and exited the vehicle. (Id. at 28). None of the officers had their guns drawn. (Id. at
28, 114).
6 Detective Joseph also testified that the photograph of the individual on the registry matched information she received
on September 21, 2015 from members of the Mutual Homes housing community—i.e., the name Philmore. (Dkt. No.
52 at 104).
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Detective Joseph, as the lead officer, approached Defendant—and the two other men—
first. (Id. at 28).7 She introduced herself as Naomi Joseph, a sergeant with the police department;
introduced the three other VIPD officers; and asked Defendant and the two other men to identify
themselves. (Id.). Detective Joseph testified that the two men with Defendant immediately
identified themselves, and that Defendant initially stated “let me be,” (id. at 86), but later stated
that his name was Kareem (id. at 28). Knowing that Defendant was not being honest about his
name,8 Detective Joseph asked him again to identify himself. (Id. at 29). Defendant again
responded that his name was Kareem. (Id.).9
Detective Joseph testified that Defendant then began to curse, stating: “What the F you
want. Meh son, I sick of this, S.” (Id.). She explained to Defendant in a “calm and cool” voice that
she wanted to speak with him and asked that he come with her over to the police car. (Id. at 29,
87, 112). Defendant complied. (Id. at 29). At the police car, one of the officers asked Defendant
again to identify himself. (Id.). Defendant responded loudly by cursing and saying, inter alia, “I
ain’t rape nobody.” (Id.).10 Detective Joseph testified that she stated to Defendant: “Nobody ain’t
tell you nothing about rape. We just asking you your name.” (Id.).
Detective Joseph testified further that she spoke with Defendant for no more than five
minutes before a crowd began to gather. (Id. at 91). In the interest of safety, the officers decided
7 Detective Joseph testified that neither she nor the other officers surrounded Defendant when they approached him
by the wall. (Dkt. No. 52 at 114).
8 Detective Joseph explained that when she initially approached Defendant, she saw that he had his name, Philmore,
and a six-point star tattooed on his arm. (Dkt. No. 52 at 29, 106).
9 On cross-examination, Detective Joseph admitted that she did not document in the report that she prepared of her
encounter with Defendant on September 23, 2015 that Defendant stated that his name was Kareem. (Dkt. No. 52 at
85). She affirmed that she wrote in her report that Defendant refused to give his name. (Id.).
10 On cross-examination, Detective Joseph explained that Defendant told her that he knew he would be identified as a
suspect in the rape case because he is a sex offender, and that he knew officers would come to speak to him about the
rape. (Dkt. No. 52 at 89).
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to leave the Mutual Homes housing community with Defendant. (Id. at 30).11 Detective Joseph
testified that she remembered telling Defendant “two or three times” that he was not under arrest.
(Id. at 30-31).12 However, “as a matter of procedure,” Defendant was frisked, handcuffed, and
placed in the police car. (Id. at 30, 91). The officers drove Defendant to the Wilbur Francis Police
Headquarters in Frederiksted. (Id. at 30-31, 91). Upon arrival at the police station, Defendant was
uncuffed. (Id. at 31).
Detective Joseph testified that, while at the police station, she asked Defendant where he
lived, and he told her that he “lives in Grove.” (Id. at 32).13 Detective Joseph testified further that
she did not ask Defendant any questions about the incident that occurred at Mutual Homes on
September 17 and 18, 2015. (Id. at 32-33). Rather, she explained to Defendant that he was a suspect
in a rape case that occurred in the Mutual Homes housing community, and that to eliminate him
as a suspect she needed his photograph and DNA. (Id. at 31, 88).
According to Detective Joseph, Defendant asked her what would happen if he did not give
her a photograph or DNA sample. (Id. at 31, 92). Detective Joseph explained: “[I]f you don’t want
to give it to me, it’s okay,” but “I will go to the court and get a court order ordering you to give it
to me.” (Id. at 113, 31). Defendant responded: “So, you going [to] get it anyway?” (Id.). Detective
Joseph answered in the affirmative. (Id.). According to Detective Joseph, Defendant stated: “If
you’re going to get it anyway, I going to give it to you.” (Id. at 31-32).
11 Detective Joseph stated at the suppression hearing that the VIPD has “had situations in Mutual Homes before where
mini riots broke out,” specifically stones had been thrown at the police and “a police car was shot up.” (Dkt. No. 52
at 30).
12 Detective Joseph later testified that one of the other officers that accompanied her to Mutual Homes also told
Defendant that he was not under arrest. (Dkt. No. 52 at 33).
13 On cross-examination, Detective Joseph testified that her search of the sex offender registry revealed that Defendant
lived in the Mutual Homes housing community, located in Grove. (Dkt. No. 52 89-90). Edward Thomas (“Mr.
Thomas”), the sex offender registrar for St. Croix, had also confirmed that Defendant had an address in Mutual Homes.
(Id. at 90).
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Defendant signed two authorization forms—one for the photograph and the other for the
DNA sample. (Id. at 32). He then proceeded to swab the inside of his mouth for DNA, and a
photograph was taken of him. (Id.). Detective Joseph testified that she told Defendant that his
photograph would be used in a photo array and shown to the rape victims. (Id.). She also told him
that if the victims did not pick his photograph from the photo array, then he would not hear from
her again; if they did, then he would. (Id.). Once Defendant provided his DNA sample and his
photograph, Detective Joseph testified that she and other VIPD officers took Defendant back to
Grove—near a fire station, which is where Defendant asked to be taken. (Id. at 37).
On September 24, 2015, the photo array, in which Defendant’s photograph was included,
was shown to S.S. and T.P. (Id. at 39-40).14 Detective Joseph testified that she called S.S. and T.P.
on that date and asked them to go to the police station. (Id. at 39). When they arrived, she separated
them and placed them in different rooms. (Id. at 40). S.S. was shown the photo array first. (Id.).
Detective Joseph explained that a form was given to S.S. that provided a space for S.S. to write a
brief synopsis of where she encountered the individual she selected—if she selected someone—15
and what, if anything, happened during that encounter. (Id.).
Detective Joseph testified that S.S. had an immediate reaction to the photo array. (Id. at
41). She started shaking and crying, and stated: “Oh, my God. Oh, my God. He’s here. He’s here.
He’s here. It’s him. It’s him.” (Id.). S.S. selected photograph number 2 from the photo array—the
photograph of Defendant. (Id.). She then filled out the form and signed her name. (Id.). At the
14 A photo array was also shown to S.S. on September 21, 2015, which included the other suspect in this case—the
dark-skinned male. (Dkt. No. 52 at 147). However, S.S. was unable to select an individual from the array. (Id.).
15 Detective Joseph testified that she explained to S.S. that she could not tell S.S. whether the person who attacked her
was in fact in the photo array. (Dkt. No. 52 at 40).
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suppression hearing, Detective Joseph identified Defendant as the individual S.S. selected from
the photo array. (Id. at 49-50).16
Later in the day on September 24, 2015, Defendant, at his own request, was picked up by
Detective Joseph and two other officers and brought to the police station. (Id. at 44-45).17 Once at
the police station, Defendant was advised of his rights; signed an “Advice of Rights” form; stated
that he understood his rights; and waived his Miranda rights. (Id. at 45). He was then asked by
Detective Joseph what he did the night of September 17, 2015 and the early morning of September
18, 2015. (Id.). His statement was videotaped. (Id. at 47). During his statement, Detective Joseph
informed Defendant that his photograph was shown to S.S. and that she immediately selected him
as the person who attacked her and her boyfriend, T.P., on September 17 and 18, 2015. (Id.). Based
on the identification, Defendant was arrested and charged with carjacking, kidnapping, rape, and
robbery. (Id. at 48).
Upon his arrest, a cell phone and keys were recovered from Defendant. (Id. at 49).
Detective Joseph testified that she obtained a warrant to search the cell phone for any photographs
or communication between Defendant and the other suspect in this case—Emmanuel. (Id.). The
results of the search are not part of the record.
II. DISCUSSION
A. Fourth Amendment
The Fourth Amendment protects individuals from “unreasonable searches and seizures.”
U.S. CONST. amend. IV; see also 48 U.S.C. § 1561 (section of the Revised Organic Act that makes
the Fourth Amendment applicable to the Virgin Islands). “Warrantless searches and seizures are
16 T.P. was also shown the photo array. (Dkt. No. 52 at 48). However, he was unable to select anyone. (Id.).
17 Detective Joseph testified that Defendant called her on September 24, 2015 to find out if there was anything he
could do to help, and requested that she pick him up. (Dkt. No. 52 at 44-45).
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presumptively unreasonable and are therefore prohibited under the Fourth Amendment, unless an
exception applies.” United States v. Mundy, 621 F.3d 283, 287 (3d Cir. 2010) (citing California v.
Acevedo, 500 U.S. 565, 580 (1991)). Evidence obtained as a result of an unreasonable search and
seizure is inadmissible at trial and must be suppressed as “fruit of the poisonous tree.” See Wong
Sun v. United States, 371 U.S. 471, 487-88 (1963) (requiring exclusion and suppression of
evidence obtained as the result of an unlawful search and seizure).
1. Seizures under the Fourth Amendment
Although law enforcement officers ordinarily must obtain a warrant based on probable
cause before conducting a seizure, in Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court
articulated an exception that allows police officers to conduct a brief investigatory stop in limited
circumstances. Under Terry and its progeny, “an officer may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable
suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). The
reasonable suspicion that justifies the Terry stop of a suspect also justifies a subsequent protective
frisk of that suspect, where officers have reason to believe that the suspect may pose a danger to
the officers. Terry, 392 U.S. at 30.
In assessing the legality of a Terry stop, the Court must first pinpoint the “moment of
seizure” and then determine “whether that seizure was justified by reasonable, articulable facts
known to [the officer] as of that time that indicated that [the suspect] was engaged in criminal
activity.” United States v. Lowe, 791 F.3d 424, 430 (3d Cir. 2015) (quoting Johnson v. Campbell,
332 F.3d 199, 205 (3d Cir. 2003) (internal quotation marks omitted)); see also United States v.
Brown, 765 F.3d 278, 288 (3d Cir. 2014). The Supreme Court has stated that “a person has been
‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances
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surrounding the incident, a reasonable person would have believed that he was not free to leave.”
United States v. Mendenhall, 446 U.S. 544, 554 (1980); see also Curley v. Klem, 298 F.3d 271,
279 (3d Cir. 2002) (stating that “[a] seizure occurs whenever an officer restrains the freedom of a
person to walk away”) (citation and internal quotation marks omitted).
The Supreme Court has clarified that the “free to leave” analysis is not applicable in
situations where an individual’s “freedom of movement was restricted by a factor independent of
police conduct[,]” Florida v. Bostick, 501 U.S. 429, 436 (1991), such as when the person “has no
desire to leave,” id. at 435. Under such circumstances, the appropriate inquiry is whether a
reasonable person would feel free to “‘disregard the police and go about his business,’ or ultimately
‘whether a reasonable person would feel free to decline the officers’ requests or otherwise
terminate the encounter’ . . . .” United States v. Kim, 27 F.3d 947, 951 (3d Cir. 1994) (quoting
Bostick, 501 U.S. at 434, 436).
It is well-established that a Fourth Amendment “‘seizure does not occur simply because a
police officer approaches an individual and asks a few questions.’” United States v. Crandell, 554
F.3d 79, 84 (3d Cir. 2009) (quoting Bostick, 501 U.S. at 434). Such an encounter, that is short in
duration, is characterized as “consensual” and does not amount to a Fourth Amendment seizure
because “the citizen has the ability to engage in or terminate the encounter.” Id. (citing United
States v. Wilson, 413 F.3d 382, 386-87 (3d Cir. 2005)). “Only when the officer, by means of
physical force or show of authority, has in some way restrained the liberty of a citizen may [the
court] conclude that a ‘seizure’ has occurred.” Bostick, 501 U.S. at 434 (quoting Terry, 392 U.S.
at 20 n.16); see also Berg v. Cnty. of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000) (“A person is
seized for Fourth Amendment purposes only if he is detained by means intentionally applied to
terminate his freedom of movement.”).
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The Government does not dispute that Defendant was “seized” within the meaning of the
Fourth Amendment. (See Dkt. No. 29 at 4).18 It argues, rather, that “there was reasonable[,]
articulable suspicion to stop Defendant.” (Id.). Nonetheless, the Court must determine when the
seizure of Defendant occurred, “as that is the moment ‘the Fourth Amendment becomes relevant.’”
United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006) (quoting Terry, 392 U.S. at 16); see also
Campbell, 332 F.3d at 205. “Only then can [the Court] evaluate the presence or absence of
reasonable suspicion, as [the Court] must consider only ‘the facts available to the officer at the
moment of the seizure.’” Brown, 448 F.3d at 245 (quoting Terry, 392 U.S. at 21-22).19
There is no allegation in this case that Detective Joseph or any of the other VIPD officers
exerted physical force over Defendant. The allegation is that the officers seized Defendant by
virtue of a show of authority. The issue before the Court, then, is whether the officers made a show
of authority sufficient to constitute a seizure and, if so, whether Defendant submitted to that show
of authority. See United States v. Smith, 575 F.3d 308, 313 (3d Cir. 2009) (“The simple act of an
assertion of authority by an officer is insufficient to transform an encounter into a seizure without
actual submission on the part of the person allegedly seized.”); see also Brown, 448 F.3d at 245
(“A seizure occurs when there is either (a) ‘a laying on of hands or application of physical force
to restrain movement, even when it is ultimately unsuccessful,’ or (b) submission to ‘a show of
authority.’”) (quoting California v. Hodari D., 499 U.S. 621, 626 (1991) (emphasis added)).
18 At the suppression hearing held on April 15, 2016, the Government represented that it is not challenging the fact
that Defendant was seized.
19 At the suppression hearing held on April 15, 2016, Defendant argued that the encounter between Defendant and
Detective Joseph was not a Terry stop because Detective Joseph testified that her purpose for visiting Mutual Homes
on September 23, 2015 was to “get a current photograph” of Defendant and “if he agreed to [get] some DNA samples.”
(Dkt. No. 52 at 113). However, “[t]he subjective intent underlying an officer’s approach does not affect the seizure
analysis.” United States v. Crandell, 554 F.3d 79, 85 (3d Cir. 2009) (stating “a tip police receive[] that motivates their
encounter with an individual merely serves to color the backstory at this stage”).
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The Supreme Court has stated that “the test for [the] existence of a ‘show of authority’ is
an objective one: not whether the citizen perceived that he was being ordered to restrict his
movement, but whether the officer’s words and actions would have conveyed that to a reasonable
person.” Hodari D., 499 U.S. at 628 (citing Mendenhall, 446 U.S. at 554); see also Brown, 448
F.3d at 245. This objective “‘reasonable person’ test presupposes an innocent person,” Bostick,
501 U.S. at 438 (citation omitted), and looks at “all of the circumstances surrounding the
encounter,” id. at 437. Specific factors a court may consider include “the threatening presence of
several officers, the display of a weapon by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that compliance with the officer’s request
might be compelled.” Mendenhall, 446 U.S. at 554 (citations omitted). The location of the
encounter may also be relevant. See Bostick, 501 U.S. at 437.
Recently, the Third Circuit explained that “[w]hether an individual has ‘submitted’ to a
show of authority depends on both the nature of the show of authority as well as the suspect’s
conduct at the moment the officer asserted his or her authority.” Lowe, 791 F.3d at 430-31. For
example, “[w]hen a suspect flees after a show of authority, the moment of submission is often
quite clear: It is when the fleeing suspect stops, whether voluntarily or as a result of the application
of physical force.” Id. (citing Hodari D., 499 U.S. at 628-29). However, “different factors must be
considered when an individual is already stationary, or ‘when an individual’s submission to a show
of governmental authority takes the form of passive acquiescence.’” Id. (quoting Brendlin v.
California, 551 U.S. 249, 255 (2007)). “Thus, while ‘a fleeing man is not seized until he is
physically overpowered . . . one sitting in a chair may submit to authority by not getting up to run
away.’” Id. (quoting Brendlin, 551 U.S. at 262).
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i. Moment of Seizure
The encounter at issue in this case began when Detective Joseph and three other VIPD
officers approached Defendant near building 49 of the Mutual Homes housing community. (See
Dkt. No. 52 at 25-26). During the suppression hearing, Detective Joseph testified that, when she
and the three VIPD officers first approached Defendant, she introduced herself and the other
officers as law enforcement and asked Defendant to identify himself. (See id. at 28).20 According
to Detective Joseph, Defendant initially stated “let me be” before responding that his name was
Kareem. (See id. at 28, 86). Defendant argues that this statement, “let me be,” was a clear indication
that he did not want to speak with the officers. (See Dkt. No. 21 at 5).21 The Court agrees. The
combination of Defendant’s express desire to be left alone and Detective Joseph’s persistence in
asking Defendant again to identify himself implies that Defendant was not free to refuse to
respond. See Johnson, 332 F.3d at 206 (identifying an officer’s persistent request to defendant to
roll down his car window as the defining moment that the encounter turned into a seizure).
Although Defendant may have felt free to refuse, and did in fact initially refuse, to identify
himself, the very next moment—when Detective Joseph persisted rather than accepting
20 Defendant notes in his Motion to Suppress that, when Detective Joseph and the other officers approached him at
Mutual Homes, they were “uniformed and armed.” (Dkt. No. 21 at 5). However, this fact does not, without more,
mean that Defendant was seized at that moment. See United States v. Henderson, 123 F. App’x. 459, 464 (3d Cir.
2005) (finding the defendant was not seized where officer “was in uniform and kept a hand on a holstered gun,” but
“did not initially call out or command [the defendant], attempt to touch him, tell him that he would detain him, or tell
him that he was not free to go”). Detective Joseph testified at the suppression hearing that, when she first approached
Defendant, neither she nor any of the other officers had any guns drawn. (See Dkt. No. 52 at 28, 114). Further, as the
Supreme Court stated in United States v. Drayton, 536 U.S. 194 (2002), the fact that police officers are “in uniform
or visibly armed” has “little weight” in the analysis of whether an encounter constitutes a seizure for purposes of the
Fourth Amendment. Id. at 204-05 (“Officers are often required to wear uniforms and in many circumstances this is a
cause for assurance, not discomfort. Much the same can be said for wearing sidearms. That most law enforcement
officers are armed is a fact well known to the public.”).
21 At the suppression hearing held on April 15, 2016, counsel for Defendant argued that, in addition to saying “let me
be,” Defendant attempted to walk away from the officers. This representation is not, however, consistent with the
evidence of record. The record indicates that the only time Defendant walked away from the wall where he was sitting
was when Detective Joseph requested that he walk over to the police car. (See Dkt. No. 52 at 29).
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Defendant’s choice not to acquiesce—the interaction became a seizure. See Johnson, 332 F.3d at
206. At that time, Detective Joseph made it clear to Defendant that he was not free to “disregard
the police and go about his business,” or “decline [her] requests or otherwise terminate the
encounter.” Kim, 27 F.3d at 951. Indeed, Detective Joseph candidly acknowledged during the
suppression hearing on February 26, 2016 that she was not going to leave Defendant alone until
he answered her questions. (See Dkt. No. 52 at 88). Under these circumstances, a reasonable person
in Defendant’s position would not have felt “free to leave.” Bostick, 501 U.S. at 435.
“The simple act of an assertion of authority by an officer is insufficient to transform an
encounter into a seizure without actual submission on the part of the person allegedly seized.”
Smith, 575 F.3d at 313. Here, Defendant acquiesced to a show of authority when he responded to
Detective Joseph’s second request to identify himself by stating that his name was Kareem. (See
Dkt. No. 52 at 28). Accordingly, the Court finds that the “moment of seizure” occurred in this case
when Detective Joseph made it clear to Defendant that he was not free to refuse to respond to her
request that he identify himself, and Defendant acquiesced. See United States v. Coggins, 986 F.2d
651, 654 (3d Cir. 1993) (finding acquiescence to a show of authority where defendant stood up
and asked to go to the bathroom, officer told him to wait, and defendant sat back down).
ii. Reasonable Suspicion
“Police may only seize a person consistent with the Fourth Amendment if they have
reasonable, articulable, and individualized suspicion that a suspect is engaged in criminal activity.”
Lowe, 791 F.3d at 434 (citing Wardlow, 528 U.S. at 123; Terry, 392 U.S. 1). Reasonable suspicion
“is a less demanding standard than probable cause” Alabama v. White, 496 U.S. 325, 330 (1990),
which is required for an arrest, Wardlow, 528 U.S. at 123. Because “probable cause means ‘a fair
probability that contraband or evidence of a crime will be found,’ the level of suspicion necessary
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to justify a Terry stop is somewhat lower and can be established with information that is different
in quantity or content from that required for probable cause.” United States v. Ramos, 443 F.3d
304, 308, 47 V.I. 755 (3d Cir. 2006) (quoting White, 496 U.S. at 330). A Terry stop is supported
by reasonable suspicion if “an officer can ‘articulate more than an inchoate and unparticularized
suspicion or hunch of criminal activity.’” United States v. Burton, 532 F. App’x 171, 174 (3d Cir.
2013) (quoting Wardlow, 528 U.S. at 123-24).
In United States v. Hensley, 469 U.S. 221 (1985), the Supreme Court explained that the
suspected criminal activity need not be in process. Id. at 227-28. Police officers may conduct a
Terry stop to investigate “reasonable suspicion, grounded in specific and articulable facts,” that an
individual “was involved in or is wanted in connection with a completed felony.” Id. at 229; see
also United States v. Serrano, 598 F. App’x 72, 77 (3d Cir. 2015) (“The reasonable suspicion case
law does not automatically prohibit police from stopping suspects to investigate past crimes.”);
Brown, 448 F.3d at 244 n.7 (“The Terry analysis applies here even though the crime in question
had already been completed.”).22 In evaluating reasonable suspicion, courts must consider the
22 At the suppression hearing held on April 15, 2016, counsel for Defendant argued that the crime Detective Joseph
suspected Defendant of committing had occurred five days prior to the date she approached Defendant in Mutual
Homes, and that there were, therefore, no exigent circumstances to justify the stop of Defendant. In United States v.
Hensley, 469 U.S. 221 (1985), the Supreme Court addressed this issue stating:
[T]he exigent circumstances which require a police officer to step in before a crime is committed or
completed are not necessarily as pressing long afterwards. Public safety may be less threatened by
a suspect in a past crime who now appears to be going about his lawful business than it is by a
suspect who is currently in the process of violating the law. . . .
Despite these differences, where police have been unable to locate a person suspected of
involvement in a past crime, the ability to briefly stop that person, ask questions, or check
identification in the absence of probable cause promotes the strong government interest in solving
crimes and bringing offenders to justice. Restraining police action until after probable cause is
obtained would not only hinder the investigation, but might also enable the suspect to flee in the
interim and to remain at large. Particularly in the context of felonies or crimes involving a threat to
public safety, it is in the public interest that the crime be solved and the suspect detained as promptly
as possible. The law enforcement interests at stake in these circumstances outweigh the individual’s
interest to be free of a stop and detention that is no more extensive than permissible in the
investigation of imminent or ongoing crimes.
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“totality of the circumstances”—i.e., the whole picture. United States v. Arvizu, 534 U.S. 266, 273
(2002) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)).
Before Detective Joseph and the other VIPD officers went to Mutual Homes on September
23, 2015, Detective Joseph had received information that Defendant was one of the perpetrators
of the carjacking and the rape that occurred in Mutual Homes on September 17 and 18, 2015. First,
on September 18, 2015, Detective Joseph received a detailed description of Defendant from S.S.—
one of the victims in this case—immediately after the crime occurred. (See Dkt. No. 52 at 21). S.S.
described Defendant as a tall, light-skinned, medium-built black male with dreadlocks, a six-point
star tattoo, and hieroglyphic tattoos on his forearm. (See id.). Second, on September 21, 2015,
Detective Joseph, received from members of the Mutual Homes housing community the first
names of the suspects who committed the crime—including, the name Philmore. (See id. at 104).
Third, on September 22, 2015, Detective Joseph received a tip from a concerned citizen who
informed her that one of the suspects was a sex offender who had recently been released from jail
on a rape conviction, and that his name was Philmore Archibald. (See id. at 22). Fourth, upon
learning that one of the suspects was a sex offender, on September 22, 2015, Detective Joseph
searched the sex offender registry with the name she was provided and discovered a photograph
of “a red skin Rasta male, medium built with the star of David and [] writings on [his] arms.” (Id.
at 23). Detective Joseph testified at the suppression hearing that the photograph of the individual
on the registry matched the name she received from the concerned citizen and the description she
received from S.S., including the location of the tattoos on his body. (Id.). Fifth, Detective Joseph
Id. at 228-29. At the suppression hearing, counsel for Defendant attempted to distinguish the facts of Hensley—i.e.,
the wanted poster for the defendant and the fact that police were unable to locate him—from the facts of this case.
However, the Court finds the differences between Hensley and this case inconsequential because the policy reasons
underlying each scenario are the same. As aptly stated by the Court in Hensley: “Particularly[, as here,] in the context
of felonies or crimes involving a threat to public safety, it is in the public interest that the crime be solved and the
suspect detained as promptly as possible.” Id. at 229.
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learned from Edward Thomas (“Mr. Thomas”), the sex offender registrar for St. Croix, that
Defendant had a Mutual Homes address. (See id. at 90).
When a Terry stop is based on a tip provided by an informant, the Third Circuit has
instructed courts to “scrutinize the informant’s ‘veracity, reliability, and basis of knowledge’ to
determine whether the information relied upon by the police was sufficient to establish reasonable
suspicion for the stop.” Serrano, 598 F. App’x at 75 (quoting United States v. Johnson, 592 F.3d
442, 449 (3d Cir. 2010)). Several non-dispositive factors inform an assessment of the reliability of
an informant’s tip, including whether:
(1) the information was provided to the police in a face-to-face interaction,
allowing an officer to assess directly the informant’s credibility;
(2) the informant can be held responsible if his or her allegations are untrue;
(3) the information would not be available to the ordinary observer;
(4) the informant has recently witnessed the criminal activity at issue; and
(5) the informant accurately predicts future activity.
See United States v. Torres, 534 F.3d 207, 210 (3d Cir. 2008) (citing Brown, 448 F.3d at 249-50);
see also Johnson, 592 F.3d at 449 (“Though these factors all are relevant to our analysis, no single
factor is dispositive or even necessary to render an informant’s tip reliable.”). These factors should
not, however, be rigidly applied. Serrano, 598 F. App’x at 75. “Ultimately, the [c]ourt must ask
whether the unknown caller’s tip ‘possessed sufficient indicia of reliability, when considering the
totality of the circumstances, for [the court] to conclude that the officers possessed objectively
reasonable suspicion sufficient to justify a Terry stop.” Id. (quoting Torres, 534 F.3d at 211
(internal quotation marks omitted) (emphasis in Torres)).
Here, the anonymous tip at issue fails to satisfy almost all of the reliability factors. The tip
came from a concerned citizen who called Detective Joseph anonymously. (See Dkt. No. 52 at 23).
Therefore, Detective Joseph was unable to assess the credibility of the caller face-to-face, and
could not hold him or her responsible if his or her allegations proved to be untrue. See Florida v.
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J.L., 529 U.S. 266, 275 (2000) (Kennedy, J., concurring) (“If the telephone call is truly anonymous,
the informant has not placed his credibility at risk and can lie with impunity.”). Although the
information that the anonymous caller provided Detective Joseph was not available to the ordinary
observer—i.e., the sex offender status of Defendant and his name—there is no indication that the
anonymous caller had witnessed the criminal activity at issue or that the anonymous caller
accurately predicted future activity. Accordingly, the anonymous tip alone was insufficient to
provide Detective Joseph with reasonable suspicion to stop Defendant. See United States v.
Robinson, 562 F. App’x 72, 75 (3d Cir. 2014) (“Non-predictive anonymous tips, taken alone, are
generally of insufficient probative value to warrant an investigatory stop.”).
But the anonymous tip did not occur in isolation, and therefore should not be viewed in a
vacuum. Notwithstanding that the tip provided by the concerned citizen on its own lacked
“sufficient indicia of reliability,” corroboration of the tip by Detective Joseph bolstered the
reasonable suspicion necessary to justify the Terry stop of Defendant. See White, 496 U.S. at 332
(holding that the reliability of an anonymous tip increases when information provided to the police
is later corroborated); see also Johnson, 592 F.3d at 450 (“The reliability of an informant’s tip can
be enhanced further by independent police corroboration of the information provided.”). At the
time Detective Joseph and the other VIPD officers approached Defendant outside of building 49
in the Mutual Homes housing community, they had: a detailed description of Defendant from one
of the victims—including a description of the tattoos on his forearm; an image of Defendant from
a search of the sex offender registry that matched the description Detective Joseph received from
the victim and the name she received from the concerned citizen and members of the housing
community; and confirmation from the sex offender registrar that Defendant had an address in
Mutual Homes. Accordingly, considering the totality of the circumstances in this case, the Court
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concludes that the tip provided by the concerned citizen, evidence by and together with the
“corroboration of certain details,” provided reasonable suspicion to support the Terry stop of
Defendant.
iii. De Facto Arrest
“A Terry stop that is supported by reasonable suspicion at the outset may nonetheless
violate the Fourth Amendment if it is excessively intrusive in its scope or manner of execution.”
Johnson, 592 F.3d at 451 (citing Terry, 392 U.S. at 28 (“The manner in which the seizure and
search were conducted is, of course, as vital a part of the inquiry as whether they were warranted
at all.”) (other citation omitted). Here, Defendant argues that he was under de facto arrest, which
requires probable cause, when he was transported to the police station. (Dkt. No. 21 at 7).
Specifically, Defendant states that “[t]he Supreme Court held that the ‘reasonable suspicion’ which
permits a limited stop under Terry v. Ohio, 392 U.S. 1 (1968), is not enough to allow the police to
transport the person stopped to the police station and extract information through detention
interrogation.” (Id. (quoting Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994) (internal
quotation marks omitted)).
In United States v. Johnson, 592 F.3d 442 (3d Cir. 2010), the Third Circuit addressed the
relative intrusiveness of an officer’s conduct, explaining that
an excessively intrusive Terry stop is not unconstitutional because its overly broad
scope necessarily places a suspect under de facto arrest without probable cause . . . .
Rather, an improperly executed Terry stop violates the Fourth Amendment because
its scope is generally unreasonable under all of the circumstances.
Johnson, 592 F.3d at 452 (citations omitted). The Court further explained that courts must
review the manner in which the [] police conducted the Terry stop at issue [] to
determine whether it was reasonably related in scope to the initial justification for
the stop and the officers’ legitimate concerns for the safety of themselves and the
general public.
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Id. (citing Terry, 392 U.S. at 19-20, 24-25; United States v. Sharpe, 470 U.S. 675, 685-87 (1985)).
During a Terry stop, “police officers may take such steps as are reasonably necessary to
protect their personal safety and to maintain the status quo during the course of the stop.” United
States v. Holyfield, 267 F. App’x 130, 135 (3d Cir. 2008) (quoting United States v. Edwards, 53
F.3d 616, 618 (3d Cir. 1995) (internal quotation marks omitted)). In Murphy v. Mifflin County
Regional Police Department, 548 F. App’x 778 (3d Cir. 2013), the Third Circuit explained that
placing a suspect in handcuffs for transport to the police station does not “necessarily transform
an investigatory seizure into a formal arrest requiring probable cause,” and “relocating [the
defendant] to the police station to continue the investigation did not convert his detention into an
arrest.” Id. at 781 (citing, inter alia, Florida v. Royer, 460 U.S. 491, 504-05 (1983) (“[T]here are
undoubtedly reasons of safety and security that would justify moving a suspect from one location
to another during an investigatory detention, such as from an airport concourse to a more private
area.”)).
Viewed in the context of the circumstances present here, the Court finds that it was
reasonable to handcuff and transport Defendant to the police station—a secure and safe area—for
further investigation. Detective Joseph testified at the suppression hearing that, in the interest of
safety, she decided to leave the Mutual Homes housing community with Defendant because a
crowd began to gather. (See Dkt. No. 52 at 30). She explained that the VIPD has “had situations
in Mutual Homes before where mini riots broke out,” specifically stones had been thrown at the
police and “a police car was shot up.” (Id.). Although, “as a matter of procedure,” Defendant was
frisked, handcuffed, and placed in the police car for transport (id. at 30, 91), Detective Joseph
testified that Defendant was told several times that he was not under arrest (see id. at 30-31, 33).
She further testified that, upon his arrival at the police station, Defendant was uncuffed. (See id. at
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31). Once at the police station, there is no indication that the detention of Defendant lasted longer
than necessary to effectuate its purpose. See Royer, 460 U.S. at 500 (stating that “an investigative
detention must be temporary and last no longer than is necessary to effectuate the purpose of the
stop”). In fact, he was released and taken back to the Mutual Homes area, as requested, shortly
after his photograph and DNA sample were taken. (See Dkt. No. 52 at 37).
In light of the foregoing, the conduct of Detective Joseph and the other VIPD officers does
not rise to the level of a de facto arrest under the Fourth Amendment. Cf. Johnson, 592 F.3d at
447-48 (holding no de facto arrest occurred where the police encircled the car, drew their weapons,
yelled at the occupants, and handcuffed the suspect). Accordingly, a reasonable person, standing
in Defendant’s shoes, would have understood that he was being briefly detained for investigation,
and was not under arrest.
B. Totality of the Circumstances
The remaining issues require the Court to consider the totality of the circumstances
surrounding Defendant’s interactions with Detective Joseph and the other VIPD officers on
September 23 and 24, 2015. The Court finds that the following context is pertinent to its analysis:
 On September 23, 2015, Defendant was approached at the Mutual Homes housing
community by Detective Joseph and three other VIPD officers, who asked Defendant to
accompany them to the police station. (See Dkt. No. 52 at 28, 30). Defendant was told by
Detective Joseph at least “two or three times,” and once by another officer, that he was not
under arrest. (Id. at 30-31, 33). Detective Joseph explained to Defendant that she and the
other officers needed to take him to the police station to talk to him, and that, “as a matter
of procedure,” he had to be handcuffed. (Id. at 30). Upon his arrival at the police station,
Defendant was uncuffed. (See id. at 31).
 While at the police station, Detective Joseph asked Defendant where he lived, but did not
ask Defendant any questions about the incident that occurred at Mutual Homes on
September 17 and 18, 2015. (See id. at 32-33). Rather, she explained to Defendant that he
was a suspect in a rape case that occurred in the Mutual Homes housing community, and
that to eliminate him as a suspect she needed his photograph and DNA. (See id. at 31, 88).
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 Defendant asked Detective Joseph what would happen if he did not give her a photograph
or DNA sample. (See id. at 31). Detective Joseph explained: “[I]f you don’t want to give it
to me, it’s okay,” but “I will go to the court and get a court order ordering you to give it to
me.” (Id. at 113, 31). Defendant responded: “So, you going [to] get it anyway?” (Id. at 31).
Detective Joseph answered in the affirmative. (Id.). Defendant then stated: “If you’re going
to get it anyway, I going to give it to you.” (Id. at 31-32).
 Defendant signed two authorization forms—one for the photograph and the other for the
DNA sample. (See id. at 32). He then proceeded to swab the inside of his mouth for DNA,
and a photograph was taken of him. (See id.). Once Defendant provided his DNA sample
and his photograph, Defendant told Detective Joseph that he had been cooperating with the
sex offender registrar, Mr. Edward Thomas, by calling Mr. Thomas on a regular basis. (See
id.). Defendant further stated that Mr. Thomas knew where he lived; Detective Joseph
could verify his address with Mr. Thomas; and he would call Detective Joseph in the
morning to provide her with better directions to his home. (See id.).
 Defendant was taken back to the Mutual Homes area—near a fire station, which is where
Defendant asked the officers to take him. (See id. at 37). As Defendant was being
transported back to the Mutual Homes area, he asked Detective Joseph for her telephone
number and told her that he would call her the following day—September 24, 2015—to
verify that she had spoken to Mr. Thomas and provide “whatever assistance [Detective
Joseph] needed.” (Id. at 37-38).
 On September 24, 2015, Defendant called Detective Joseph twice to find out if Mr. Thomas
had contacted Detective Joseph and to see if there was “anything else he could do to help.”
(Id. at 44). Detective Joseph was unavailable the first time that Defendant called, but
Detective Joseph told Defendant to call back. (See id.). Defendant did call back and stated
to Detective Joseph that he “wanted to speak.” (Id.). Defendant told Detective Joseph that
“he was by the fire station” and requested that she pick him up. (Id. at 44-45). Detective
Joseph and two other officers drove to pick up Defendant. (See id. at 45). Once Defendant
arrived at the police station, Defendant was advised of his Miranda rights by Detective
Joseph and told: “[Y]ou don’t have to speak with me if you don’t want to.” (Id.). Defendant
stated that he understood his rights, signed an “Advice of Rights” form, and gave a
statement. (See id.).
In the context of the foregoing circumstances, the Court will address each of Defendant’s
arguments.
1. Custodial Interrogation
Defendant contends that he was “in custody” and subjected to a “custodial interrogation,”
without first being advised of his Miranda rights, on September 23, 2015 when Detective Joseph
and the other VIPD officers transported him from Mutual Homes to the police station. Defendant
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asserts that any statements he made on September 23, 2015, as a result of the custodial
interrogation, and without Miranda warnings, must be suppressed. In response, the Government
argues that Defendant was not “in custody” or subjected to a “custodial interrogation” that required
Miranda warnings. The Government asserts that Defendant was brought to the police station to
confirm or dispel the belief of the police that he was involved in the crimes that occurred at Mutual
Homes on September 17 and 18, 2015.
In Miranda v. Arizona, the Supreme Court established the now well-recognized legal
principle that, under the Fifth Amendment, the “prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against self-
incrimination.” 384 U.S. 436, 444 (1966). A custodial interrogation has been defined as an “inquiry
[] conducted by officers who are aware of the potentially incriminatory nature of the disclosures
sought” held in “custodial settings that have inherently coercive pressures that tend to undermine
the individual’s will to resist and to compel him to speak.” United States v. Morales, 834 F.2d 35,
38 (2d Cir. 1987) (citing Miranda, 384 U.S. at 467; Garner v. United States, 424 U.S. 648, 657
(1976)).
The Supreme Court has explicitly stated that law enforcement officers “are not required to
administer Miranda warnings to everyone whom they question.” Oregon v. Mathiason, 429 U.S.
492, 495 (1977). Miranda warnings are only required when a suspect is “(1) ‘in custody’ and (2)
subject to ‘interrogation’ by the Government.” United States v. Dupree, 617 F.3d 724, 731 n.7 (3d
Cir. 2010) (citations omitted); see also United States v. Mesa, 638 F.2d 582, 584 (3d Cir. 1980)
(“Miranda warnings are designed to protect against the evils of ‘custodial interrogation,’ and they
are not intended to unduly interfere with a proper system of law enforcement or to hamper the
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police’s traditional investigatory functions.”). A suspect is “in custody” when “there is a ‘formal
arrest or restraint of freedom of movement’ of the degree associated with a formal arrest.” United
States v. Leese, 176 F.3d 740, 743 (3d Cir. 1999) (quoting California v. Beheler, 463 U.S. 1121,
1125 (1983)).
In the instant case, Defendant argues that he was “in custody” and subjected to a “custodial
interrogation” because he was brought to the police station, which counsel for Defendant
characterized as “a very coercive environment.” However, “a noncustodial situation is not
converted to one in which Miranda applies . . . simply because the questioning takes place in the
station house[.]” Mathiason, 429 U.S. at 495. As the Third Circuit has explained,
the key aspect of [a] custodial setting . . . is the isolation of the suspect in a room
that is dominated by [] law enforcement officials who will interrogate him. In this
setting, the police have immediate control over the suspect—they can restrain him
and subject him to their questioning and apply whatever psychological techniques
they think will be most effective.
Mesa, 638 F.2d at 585-86. Thus, “at a minimum, the police must have immediate control over the
suspect . . . and the proper inquiry to determine whether [an individual] is in custody is not to ask
if he was at the police station, but to ask if he was free to leave.” Id. at 587.
Here, Defendant went to the police station with the officers upon the request of Detective
Joseph. (See Dkt. No. 52 at 30). He was told at least “two or three” times by Detective Joseph, and
another time by one of the other officers, that he was not under arrest. (Id. at 30-31, 33). Although
Defendant was handcuffed “as a matter of procedure” while he was transported to the police station
(id. at 30), he was uncuffed upon his arrival (see id. at 31). In addition, when he arrived at the
police station, he was told the purpose of the investigatory stop, which was that he was a suspect
in a rape case that occurred in the Mutual Homes housing community, and that to eliminate him
as a suspect the officers needed his photograph and DNA. (See id. at 31, 88). Once Defendant
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provided the photograph and DNA sample, Detective Joseph and the other VIPD officers took him
back to the Mutual Homes area, which is where Defendant asked to be taken. (See id. at 37).
Based on the record before the Court, the Court concludes that Defendant was not in
custody within the meaning of Miranda. Specifically, the Court finds that Defendant was not in
the kind of coercive setting that the Third Circuit has concluded would place him within the
“immediate control of the police.” Mesa, 638 F.2d at 588; see also Mathiason, 429 U.S. at 495
(finding the fact that the defendant had come to the police station upon the request of the police;
was told he was not under arrest; and left the police station after questioning indicated that he had
not been subjected to a “custodial interrogation,” even though he had been questioned at the police
station for half an hour). Accordingly, the Court finds that Miranda warnings were not required
and, therefore, will not suppress any statements made by Defendant on September 23, 2015.
2. Waiver of Miranda Rights
At the suppression hearing held on April 15, 2016, counsel for Defendant argued that
Defendant did not voluntarily sign an “Advice of Rights” form, waiving his Miranda rights, on
September 24, 2015 (see Gov’t Ex. 5), because the actions of Detective Joseph on September 23,
2015 communicated to Defendant that he did not have Miranda rights. Specifically, counsel,
relying on the testimony of Detective Joseph, argued that Defendant felt compelled to answer
questions at the police station because of his sex offender status, and that Detective Joseph never
dispelled Defendant of this belief. Accordingly, Defendant contends that any statements that he
made on September 24, 2015 must be suppressed.
As discussed above, a person subject to custodial interrogation must be informed of his
rights under Miranda. See 384 U.S. at 479. A person may, however, “waive effectuation of these
rights, provided the waiver is made voluntarily, knowingly and intelligently.” Id. at 444; see also
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United States v. Pruden, 398 F.3d 241, 246 (3d Cir. 2005). “Once a defendant challenges the
admissibility of any statements made while in custody, the government must prove [by a
preponderance of the evidence] that the defendant was advised of and understood [his] Miranda
rights and that he . . . validly waived those rights.” United States v. Briscoe, 69 F. Supp. 2d 738,
741, 41 V.I. 446 (D.V.I. 1999), aff’d in part, rev’d in part on other grounds, 234 F.3d 1266 (3d
Cir. 2000); see also Colorado v. Connelly, 479 U.S. 157, 168-69 (1986).
To prove a valid waiver, the Government has the burden of establishing that the waiver
was “voluntary in the sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception,” and “made with a full awareness both of the nature of the
right being abandoned and the consequences of the decision to abandon it.” Briscoe, 69 F. Supp.
2d at 741 (quoting Colorado v. Spring, 479 U.S. 564, 572 (1987) (internal quotation marks
omitted)); see also United States v. Whiteford, 676 F.3d 348, 362 (3d Cir. 2012). The Supreme
Court has characterized this as a “heavy burden.” Miranda, 384 U.S. at 475; see also North
Carolina v. Butler, 441 U.S. 369, 373 (1979) (stating that “the prosecution’s burden is great”).
To determine whether Miranda rights have been voluntarily, knowingly, and intelligently
waived, courts must “consider the totality of circumstances surrounding [the defendant’s]
statement.” Briscoe, 69 F. Supp. 2d at 741 (quoting United States v. Tyler, 164 F.3d 150, 158 (3d
Cir. 1998)). Specifically, courts consider “the background, experience, and conduct of the
[defendant], as well as any indicia of coercion.” Id. (citing Oregon v. Bradshaw, 462 U.S. 1039,
1046 (1983)). Examples of “traditional” indicia of coercion are the duration and conditions of
detention, the attitude of the interrogators, defendant’s physical and mental state, and other
pressures affecting his powers of resistance and self-control. Id. at 741 n.1 (citing Spring, 479 U.S.
at 574).
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In support of the argument that Defendant did not voluntarily waive his Miranda rights on
September 24, 2015 because he felt compelled to answer questions as a result of his sex offender
status, counsel for Defendant relies on the following excerpt of Detective Joseph’s suppression
hearing testimony:
Q You made it pretty clear to him, until you could clear him up, you
was going to continue to deal with him the way you see fit, right?
A Part of the things that he was told as a sex offender in the registry,
he was told that he would have to answer questions. He, himself, told me that Agent
Thomas told him that. So, he knew that, because that’s what he said, when he
mentioned the rape, that he didn’t do anything. We always picking on him, and only
because he was a sex offender. So those types of questions were something he knew
was going to come to him just because of his status.
(Dkt. No. 52 at 88). However, a full reading of Detective Joseph’s testimony on this issue does not
compel the conclusion that Defendant believed that he had to relinquish his Miranda rights, but
rather that he knew the police would consider him a possible suspect of the rape that occurred in
Mutual Homes because of his sex offender status, and question him:
Q So you told him as a sex offender –
A Not. No, I never told him that. I’m telling you what he, himself, told
me.
Q Okay.
A He, Philmore Archibald, told me, Naomi Joseph, that he knew that
he would be identified as a possible suspect, because he was a sex offender. And
he knew that we were going to come to speak to him. He told me that I never told
him that.
Q He told you that at the station though, didn’t he, Detective Joseph?
A He said it at the scene, I ain’t got nothing to do with this rape. All
you always picking on me.
When we got to the station and when he was cooler and calmer, he
explained why he was angry. And in his utterance, he said that he knew that we
would eventually come to speak to him, because of his sex offender status.
Q Okay. You’re telling me that you did not bring up the issue of his
sex offender status?
A I didn’t have to. He did.
(Id. at 88-89).
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Further, there is more than ample evidence in the record to support the conclusion that,
under the totality of the circumstances, Defendant voluntarily, knowingly, and intelligently waived
his Miranda rights before making a statement on September 24, 2015. For example, Detective
Joseph testified that, as Defendant was being transported back to the Mutual Homes area on
September 23, 2015, he asked Detective Joseph for her telephone number and told her that he
would call her the following day—September 24, 2015— to verify that she had spoken to Mr.
Thomas, the sex offender registrar, and provide her with “whatever assistance [she] needed.” (Dkt.
No. 52 at 37-38). Defendant did, in fact, call Detective Joseph twice the next day to find out if Mr.
Thomas had contacted Detective Joseph and to see if there was “anything else he could do to help.”
(Id. at 44). When Detective Joseph was unavailable the first time that Defendant called, Defendant
called Detective Joseph back and stated that he “wanted to speak.” (Id.). Detective Joseph testified
that Defendant told her that “he was by the fire station” and requested that she pick him up. (Id. at
44-45). Once Defendant arrived at the police station, Detective Joseph testified that she advised
Defendant of his Miranda rights and that Defendant stated that he understood his rights, signed an
“Advice of Rights” form, and gave a statement. (See id. at 45).
The Court credits the testimony of Detective Joseph that Defendant was read his Miranda
rights; stated that he understood his rights; and signed a form that waived those rights. The
credibility of Detective Joseph’s statement is supported by the spirit of cooperation displayed by
Defendant in offering to provide “whatever assistance [Detective Joseph] needed” and in returning,
at his own request, to the police station on September 24, 2015 “to speak.” (Id. at 38, 44).
Considering the totality of the evidence, the Court finds that the Government has met its burden
of proving by a preponderance of the evidence that Defendant made a voluntary, knowing, and
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intelligent waiver of his Miranda rights, and, therefore, will not suppress the statements Defendant
made on September 24, 2015.
3. Voluntariness of Consent
Defendant argues that, although he signed two authorization forms—one for his
photograph (Gov’t Ex. 3) and the other for his DNA sample (Gov’t Ex. 4)—he did so only after
Detective Joseph told him that she would get a court order requiring Defendant to provide the
photograph and DNA sample. Therefore, he felt he had no choice but to consent to the taking of
his photograph and DNA sample. In response, the Government contends that Defendant was not
coerced into consenting, but rather, after weighing his options, he made a deliberate choice to sign
the authorization forms.
When consent is asserted as the lawful basis for obtaining evidence, the Government “has
the burden of proving [by a preponderance of the evidence] that the consent was . . . freely and
voluntarily given.” United States v. Price, 558 F.3d 270, 277 (3d Cir. 2009) (quoting Bumper v.
North Carolina, 391 U.S. 543, 548 (1968) (internal quotation marks omitted)); see also United
States v. Matlock, 415 U.S. 164, 177 (1974). The voluntariness of consent is determined by
“examining the totality of the circumstances,” including “the age, education, and intelligence of
the subject; whether the subject was advised of his or her constitutional rights; the length of the
encounter; the repetition or duration of the questioning; and the use of physical punishment.” Id.
at 278 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). The “setting in which the
consent was obtained,” as well as “the parties’ verbal and non-verbal actions” are also relevant.
Id. (quoting United States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003) (internal quotation marks
omitted)).
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Here, Detective Joseph testified that before Defendant signed the two authorization forms,
he asked her what would happen if he did not give her a photograph or DNA sample. (Dkt. No. 52
at 31, 92). Detective Joseph testified that she explained to Defendant: “[I]f you don’t want to give
it to me, it’s okay,” but “I will go to the court and get a court order ordering you to give it to me.”
(Id. at 113, 31). Defendant responded: “So, you going [to] get it anyway?” (Id.). On cross-
examination, Detective Joseph testified that she “basically told him yes.” (Id. at 93). According to
Detective Joseph, Defendant then stated: “If you’re going to get it anyway, I going to give it to
you.” (Id. at 31-32).
Under Third Circuit jurisprudence, “it is well-established that when evidence shows that a
person believes [he or] she must consent to a search, this ‘weighs heavily against a finding that
consent was voluntarily given.’” United States v. Noe, 342 F. App’x 805, 807 (3d Cir. 2009)
(quoting United States v. Molt, 589 F.2d 1247, 1251 (3d Cir. 1978)). In United States v. Sebetich,
776 F.2d 412 (3d Cir. 1985), the Court “expressed concern that statements by law enforcement
officers suggesting that acquiring a warrant would be a foregone conclusion might convey an
impression that the individual has no choice but to consent.” Id. (citing Sebetich, 776 F.2d at 425).
However, the Court clarified “that a statement by an officer that he would merely attempt to obtain
a warrant would not weigh against a finding of voluntary consent.” Id. (emphasis in original); see
also United States v. Claus, 458 F. App’x 184, 189 (3d Cir. 2012) (finding officers’ suggestion
that search warrant would “most likely issue” was not an affirmative representation “insinuating
that the defendant had no choice but to consent”; the officers merely provided a permissible
“appraisal of the realities” the defendant faced).
Notwithstanding these concerns, even in situations where the “police possess an invalid
search warrant or falsely claim that they can obtain one,” the Third Circuit has “expressly declined
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to ‘establish a blanket rule that . . . voluntariness is necessarily vitiated[.]” Noe, 342 F. App’x at
807 n.4 (quoting Sebetich, 776 F.2d at 424). The Court explained that the Supreme Court in
Schneckloth v. Bustamonte, 412 U.S. 218 (1973), “mandates consideration of all the surrounding
circumstances.” Id. (citing Sebetich, 776 F.2d at 424); see also Schneckloth, 412 U.S. at 248-49
(stating that “[v]oluntariness is a question of fact to be determined from all the circumstances”).
Thus, even if a government agent had, indeed, suggested that the ability to obtain a warrant was a
foregone conclusion, that would “constitute but one factor in the overall determination of
voluntariness of the consent.” Noe, 342 F. App’x at 807 n.4.
In the instant case, even if the statement by Detective Joseph that she would “go to the
court and get a court order ordering [Defendant]” to give her a photograph and DNA sample can
be viewed as suggesting that obtaining an order was a “foregone conclusion,” the totality of the
circumstances indicate that, once Defendant arrived at the police station, he exhibited a willingness
to fully cooperate with the police. Specifically, Detective Joseph testified that Defendant was
“cool[] and calm[]” at the police station and that the conversation about consent was “casual and
calm” rather than an “antagonistic type [of] confrontation.” (Dkt. No. 52 at 89, 93). She also
testified that Defendant was not physically restrained when consent for his photograph and DNA
sample was requested, and that she told Defendant he did not have to consent to the taking of his
photograph or DNA if he did not want to:
Q Now, at the station with, when the defendant was there, you asked
him for, to consent to give the photograph and DNA sample?
A Yes, ma’am.
Q Did you tell him he could or he couldn’t?
A Yeah. He asked me. I told him, yeah, I mean, if you don’t want to
give me, it’s okay, but I told him that I would eventually get it. Because he asked.
(Dkt. No. 52 at 31, 113). Accordingly, the “non-verbal actions” of Defendant, reflected in his cool
and calm demeanor, the non-confrontational “setting in which the consent was obtained,” and the
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fact that Defendant was explicitly informed that he did not have to consent indicate that Defendant
voluntarily gave his consent to the taking of his photograph and DNA sample. See Price, 558 F.3d
at 278.
It is worthy of note that, after Defendant provided his photograph and DNA sample,
Detective Joseph and the other VIPD officers drove Defendant back to the Mutual Homes area,
which is where he asked to be taken (see Dkt. No. 52 at 37), and that Defendant, as he was being
transported back to the Mutual Homes area, asked Detective Joseph for her telephone number and
told her that he would call her the following day and provide her with “whatever assistance [she]
needed” (id. at 37-38). Defendant did, in fact, call Detective Joseph twice on September 24, 2015
to find out if there was “anything else he could do to help,” and requested that she pick him up.
(Id. at 44-45). These facts—albeit after consent was given—add further context to the tenor of the
interactions between Defendant and the officers and provide additional support for the Court’s
conclusion that Defendant was not intimidated or coerced in any way into giving consent. See Noe,
342 F. App’x at 809 (finding defendant’s live-in girlfriend voluntarily consented to the seizure of
defendant’s weapons—despite contradictory testimony that agents threatened to secure a warrant
if she refused consent—because she, inter alia, affirmatively testified that she wanted to
“cooperate” with the agents).
Given the totality of the circumstances, the Court concludes that the Government has
established, by a preponderance of the evidence, that consent was voluntarily given by Defendant.
Accordingly, the photograph and DNA sample of Defendant will not be suppressed.23
23 In his Motion to Suppress, Defendant moves to suppress the contents of the cell phone that was recovered from his
body on the date of his arrest. (Dkt. No. 21at 9). However, at the suppression hearing, Defendant, after acknowledging
that Detective Joseph testified that she obtained a warrant to search the cell phone (Dkt. No. 52 at 49), did not pursue
the argument further.
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III. CONCLUSION
For the foregoing reasons, the Court will deny Defendant’s “Motion to Suppress Physical
Evidence and Statements.” (Dkt. No. 21).
An appropriate Order accompanies this Memorandum Opinion.
Date: June 3, 2016 _______/s/_________
WILMA A. LEWIS
Chief Judge
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