                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-17-2000

United States v. Ubiles
Precedential or Non-Precedential:

Docket 00-3091




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Recommended Citation
"United States v. Ubiles" (2000). 2000 Decisions. Paper 169.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/169


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Filed August 17, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3091

UNITED STATES OF AMERICA

v.

KAHLI* UBILES, Appellant

*Caption amended per Court's order of June 9, 2000

On Appeal From the District Court of the Virgin Islands
Division of St. Thomas and St. John
(D.C. Crim. No. 98-cr-00143)
District Judge: Honorable Thomas K. Moore

Argued: June 15, 2000

Before: BECKER, Chief Judge, ALDISERT, Circuit Judge
and O'KELLEY, District Judge.**

(Filed August 17, 2000)

       PAMELA L. WOOD, ESQUIRE
        (ARGUED)
       Office of Federal Public Defender
       P.O. Box 1327
       St. Thomas, United States Virgin
       Islands 00804-1327

Counsel for Appellant



_________________________________________________________________
** Honorable William C. O'Kelley, United States District Judge for the
Northern District of Georgia, sitting by designation.
       JAMES A. HURD, JR., ESQUIRE
       United States Attorney
       KIM L. CHISHOLM, ESQUIRE
        (ARGUED)
       Assistant United States Attorney
       5500 Veterans Drive, Suite 260
       Charlotte Amalie, United States
        Virgin Islands 00802-6424

       Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

Kahli Ubiles unlawfully possessed an unregistered
firearm while attending a crowded street festival in St.
Thomas. Acting on an anonymous tip that Ubiles possessed
a gun, local authorities also in attendance stopped and
frisked him. The authorities' "Terry" search proved fruitful,
and they seized the firearm and arrested him. The United
States subsequently filed an indictment against Ubiles, who
unsuccessfully moved to have the gun suppressed on the
ground that it was seized unlawfully. A jury acquitted
Ubiles of a federal charge and convicted him of the
possession of an unregistered firearm, in violation of V.I.
CODE ANN. tit. 14, S 2253(a). This appeal followed.

Holding that the search and seizure of Ubiles was
unlawful, we will reverse. The Terry stop in this case was
not supported by reasonable suspicion "that criminal
activity [was] afoot . . . ." Terry v. Ohio, 392 U.S. 1, 30
(1968). First, it is not a crime to possess a firearm in the
Virgin Islands--even when standing in a crowd. Second, the
anonymous tipster who approached the authorities had
said nothing that would indicate that Ubiles possessed the
gun unlawfully (e.g., without registration); that he was
committing or about to commit a crime; or that he posed a
threat to the officers or anyone in the crowd. Therefore, the
stop and subsequent search were unjustified because the
precondition for a Terry stop was not present in this case.
In reaching this conclusion, we reject the Government's

                               2
contention that Ubiles had a lessened expectation of
privacy because he was standing in a crowd. We will
therefore vacate the conviction and remand for further
proceedings.1

I.

The J'ouvert Carnival is a celebration that periodically
takes place in the U.S. Virgin Islands. The carnival
celebrates the sunrise, and hence begins before daybreak.
J'ouvert festivities last until noon and are typically crowded
and boisterous. Hundreds if not thousands of revelers
dance in the streets and march in a parade, while local
bands lead the procession playing music from a flatbed
truck. J'ouvert celebrants often consume a great deal of
alcohol.

Virgin Islands Territorial Court Deputy Marshal Franklin
Leonard attended the April 30, 1998 J'ouvert Carnival on
the Island of St. Thomas. He was off-duty at the time, and
was joined by a female friend and two on-duty police
officers, Virgin Islands Police Chief Americus Jackson and
Virgin Islands Deputy Police Chief Jose Garcia. At
approximately 9:00 a.m., an elderly gentleman approached
Deputy Marshal Leonard and the officers. Without
_________________________________________________________________

1. Our Terry holding obviates the need to reach several other important
questions inhering in this case. First, because of our Terry holding, we
are able to assume arguendo that the informant's tip in this case was
reliable, and therefore, we need not grapple with the fact that the Virgin
Islands authorities relied on a face-to-face anonymous tip to stop and
frisk Ubiles. Cf. Florida v. J.L., 120 S. Ct. 1375, 1380 (2000) (holding
"that an anonymous tip lacking indicia of reliability . . . does not
justify
a stop and frisk whenever and however it alleges the illegal possession
of firearm"); id. at 1381 (discussing the constitutional difference
between
the "anonymous telephone tip" made in J.L. and an anonymous tip made
"face to face") (Kennedy, J., concurring). Second, we do not address
Ubiles's argument that the firearm statute under which he was
convicted, see V.I. CODE ANN. tit. 14, S 2253(a), as well as a related
statute defining certain terms in the firearm statute, see V.I. CODE ANN.
tit. 23, S 470, are void for vagueness. Lastly, we do not decide whether
the District Court erred in admitting at trial certain incriminating
statements made by Ubiles, and in instructing the jury regarding the
Virgin Island's firearm possession statutes.

                               3
identifying himself, he told Leonard that there was a young
man in the crowd standing on the sidewalk near the sea
plane shuttle buildings who had a gun in his possession.
The anonymous informant pointed toward the man in
question and described his clothing and appearance. The
informant did not explain how he knew that the man had
a gun. He also did not describe, at the time, anything
suspect about the gun or anything unusual or suspicious
about the man or his behavior.

Deputy Marshal Leonard, followed by the two officers (but
not the tipster), walked over to the young man--the
defendant in this case--Kahli Ubiles. According to
testimony elicited from Leonard at the suppression hearing,
Ubiles exhibited no unusual or suspicious behavior when
Leonard approached him or when Chief Jackson began
talking to him. Leonard also testified that he could not tell
when he approached Ubiles whether Ubiles was carrying
any type of weapon. Leonard nevertheless conducted a pat-
down search of Ubiles and found in Ubiles's possession a
cutlass (or machete) and a loaded gun. The firearm was a
Jennings Long Rifle .22 caliber semi-automatic pistol,
model J-22. The pistol's serial number allegedly had been
obliterated, and evidence adduced at Ubiles's subsequent
criminal trial revealed that the firearm was unregistered.

The United States subsequently charged Ubiles with
possession of a firearm with an obliterated serial number in
violation of federal law, 18 U.S.C. SS 922(k), 924(a)(1)(B);
possession of an unregistered firearm in violation of Virgin
Islands law, V.I. CODE ANN. tit. 14, S 2253(a); and escape
from custody in violation of Virgin Islands law, V.I. CODE
ANN. tit. 14, S 661. A federal grand jury returned a three-
count indictment on these charges. After the indictment
was obtained, the Government successfully moved to
dismiss the escape from custody charge.

Before trial, Ubiles moved to suppress certain evidence,
including the firearm seized by Deputy Marshal Leonard. At
a hearing on this motion, the Government presented no
evidence suggesting that Leonard or Officers Jackson and
Garcia knew anything about Ubiles other than the
information with which the anonymous informant had
provided them. Leonard stated that no one had told them

                                4
anything that would lead them to believe (1) that Ubiles
posed a danger to himself, the other officers, or the crowd;
(2) that Ubiles had brandished the gun or machete in his
possession; or (3) that Ubiles did not have a license to carry
the gun in his possession. See App. at 71-73. Leonard
testified merely that he was "very concerned about the
situation" and therefore stopped and frisked Ubiles. Id. at
65.

Based on this testimony, the District Court denied
Ubiles's motion to suppress the J-22 seized from his
person. In denying the motion to suppress the firearm, the
District Court explained:

       It's the night of--I think I can take judicial notice of--
       can be some heavy drinking. People are tired.

        So the kind of information that was given by the
       older gentleman to Marshal Leonard, that he had just
       --pointing out the gentleman, describing the clothes
       that the defendant was wearing, had a gun, was
       enough reasonable suspicion for the law enforcement
       officers, the Chief Deputy, Chief, and Marshal Leonard
       to go over and question him in an investigative style.
       Prudent thing to do.

        And certainly it turned out to be very prudent in this
       case for the officers' protection while they were
       questioning the individual, to pat him down.

        And that pat down produced [the J-22].

Id. at 104.

Ubiles's case proceeded to trial. The Government
introduced the J-22 into evidence and presented the
testimony of Deputy Marshal Leonard; Brenda Mason, a
Firearms Certification Officer with the U.S. Virgin Islands;
and Ronald Lockhart, the anonymous informant (whose
identity the Virgin Islands authorities had discovered
shortly before trial). Leonard testified about seizing the
weapon from Ubiles. Ms. Mason testified that after a
thorough records search of St. Thomas and St. Johnfiles
she had not found a firearm license for Ubiles's gun. She
also stated that the Firearms Certification Officer for the
District of St. Croix had found no such record. Lockhart

                                5
told the jury that at approximately 8:30 a.m., on April 30,
he saw something that looked like a gun pass from another
man to Ubiles. He testified that there were three to five
minutes between the time he saw the gun and the time he
spoke to the officers. However, Lockhart had not related
these details to the officers when he gave his tip. He had
told Leonard only that he had observed a man with a gun
and described and pointed to that man for the officers.

The jury found Ubiles not guilty of the federal charge--
possessing a firearm with an obliterated serial number--but
guilty of the territorial charge of possessing an unregistered
firearm. Ubiles filed a post-trial motion to vacate the
conviction, which was denied. The District Court sentenced
Ubiles to three years imprisonment, suspending all but six
months of the sentence, and to supervised probation for a
period of four years and six months.2 This appeal followed.
The District Court of the Virgin Islands had jurisdiction
under 18 U.S.C. SS 3231, 3241, and 48 U.S.C.S 1612(c).
We have jurisdiction pursuant to 28 U.S.C. S 1291. We
exercise plenary review of the District Court's decision to
deny Ubiles's motion to suppress the firearm in question.
See United States v. Hyde, 37 F.3d 116, 118 (3d Cir. 1994).
_________________________________________________________________

2. We note that the District Court ordered that Ubiles's term of
imprisonment be served consecutive to an unrelated criminal charge on
which the Virgin Islands authorities were holding Ubiles. The Virgin
Islands statute governing consecutive sentences for the violation of
territorial statutes allows for the imposition of sentences "to be served
. . . consecutively to any other sentence imposed at the same time or
prior thereto." V.I. CODE ANN. tit. 5, S 3672(a) (2000) (emphasis added).
Section 3672(a) does not speak of the imposition of sentences "to be
served consecutively to any other charge brought at the same time or
prior thereto," nor would it seem appropriate to do so. Until a charge
matures into a conviction and then a sentence, a suspect held on that
charge is a mere detainee, and not a prisoner of the state serving a
sentence in addition to which another sentence could be imposed
consecutively. Therefore, the sentence in this case commenced as soon
as it was imposed, on February 4, 2000. The sentence accordingly
expired on August 4, 2000. However, inasmuch as the non-jail portion
of the sentence remains, this appeal is not moot.

                               6
II.

The Fourth Amendment prohibits "unreasonable searches
and seizures . . . ." U.S. CONST. AMEND IV; see also Harris v.
United States, 331 U.S. 145, 150 (1947). "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 (1985). The "general rule" is
that "warrantless searches are presumptively unreasonable
. . . ." Horton v. California, 496 U.S. 128, 133 (1990). The
courts have, however, fashioned exceptions to the general
rule, recognizing that in certain limited situations the
government's interest in conducting a search without a
warrant outweighs the individual's privacy interest. See,
e.g, id.; Montoya de Hernandez, 473 U.S. at 537-41. A Terry
"stop and frisk" is one such exception. See Terry v. Ohio,
392 U.S. 1, 20-22 (1968).

A.

Terry, and cases which follow it, make clear that "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. Wardlaw, 120 S. Ct. 673, 675 (2000). To
make a showing that he or she in fact had reasonable
suspicion, "[t]he officer must be able to articulate more
than an `inchoate and unparticularized suspicion or
"hunch" of criminal activity.' " Id. (quoting Terry, 392 U.S.
at 27).

A reasonable suspicion of criminal activity may be formed
by observing exclusively legal activity. See id. at 677; see
also Terry, 392 U.S. at 22-23. In Wardlaw , for example, the
officers who stopped the defendant were able to point to the
fact that the defendant was standing in an area known for
heavy narcotics trafficking and to the fact that he
immediately fled the scene after seeing the officers arrive.
See id. at 674. The Court "noted the fact that the stop
occurred in a `high crime area' [counts] among the relevant
contextual considerations in a Terry analysis." Id. at 676.
The Court further noted that headlong flight, while not

                               7
"necessarily indicative of ongoing criminal activity," id. at
677, was "suggestive" of "wrongdoing," id. at 676. The
Supreme Court therefore held that, while both of the
defendant's actions constituted legal behavior, they
properly gave rise to the inference that criminal activity was
afoot, given the totality of the circumstances. See id. at
676-77.

What remained the centerpiece of the Court's analysis,
however, was whether the defendant's behavior pointed to
the presence of illegal activity. Even though the officers'
suspicion was grounded in evidence of purely legal activity,
the Court held that the stop was lawful only because the
defendant's behavior suggested that criminal activity was
afoot. See id. at 676. We conclude Officer Nolan was
justified in suspecting that Wardlow was involved in
criminal activity, and, therefore, in investigating further.")
(emphasis added). Had the defendant not fled on sight of
the officers, and simply " `go[ne] about [his] business,' "
there would have been no reason to suspect that he was
engaged in criminal activity, and the officers would have
had no justification to detain him. See id. (citing Florida v.
Royer, 460 U.S. 491, 498 (1983)).

Ubiles contends that the stop in this case was not
supported by the type of reasonable suspicion required by
Terry. He argues that, based on the facts presented to the
officers by Lockhart at the J'ouvert Carnival, the officers
had no reason to suspect that "criminal activity[was] afoot"
at the time they decided to stop him. Terry, 392 U.S. at 30.
We agree.

B.

Deputy Marshal Leonard and his compeers had no
reason to believe that Ubiles was "involved in criminal
activity . . . ." Wardlow, 120 S. Ct. at 676. It is not
necessarily a crime to possess a firearm in the Virgin
Islands, see V.I. CODE ANN . tit. 23, S 470; nor does a mere
allegation that a suspect possesses a firearm, as dangerous
as firearms may be, justify an officer in stopping a suspect
absent the reasonable suspicion required by Terry, see
Florida v. J.L., 120 S. Ct. 1375, 1379 (2000) (rejecting an

                               8
"automatic firearm exception" to the rule in Terry).
Moreover, while there are ways to possess a gun illegally in
the Territory--such as by possessing a gun with an altered
serial number, see 18 U.S.C. S 922(k), or by possessing an
unlicensed gun, see V.I. CODE A NN. tit. 14, S 2253(a)--the
Virgin Islands legislature has not enacted a criminal statute
prohibiting gun possession in a crowd or at a carnival.
During the suppression hearing the Government adduced
no evidence suggesting that either Leonard or his officer
confreres was aware of any articulable facts suggesting that
the gun Ubiles possessed was defaced or unlicensed, that
Ubiles posed a safety risk to the authorities or the J'ouvert
celebrants, or that Ubiles was acting in a manner indicating
that he was involved in a different crime. For all the officers
knew, even assuming the reliability of the tip that Ubiles
possessed a gun, Ubiles was another celebrant lawfully
exercising his right under Virgin Islands law to possess a
gun in public. That is as much as Lockhart told Leonard
and Officers Jackson and Garcia in pointing to Ubiles and
informing them that Ubiles had a gun in his possession.

This situation is no different than if Lockhart had told
the officers that Ubiles possessed a wallet, a perfectly legal
act in the Virgin Islands, and the authorities had stopped
him for this reason. Though a search of that wallet may
have revealed counterfeit bills--the possession of which is
a crime under United States law, see 18 U.S.C. SS 471-72--
the officers would have had no justification to stop Ubiles
based merely on information that he possessed a wallet,
and the seized bills would have to be suppressed. The
District Court's rationale for not suppressing thefirearm in
this case is troubling, therefore, insofar as it seems to
endorse the stop based on the fruits obtained as a result of
the subsequent search. See Part I (reproducing the District
Court's rationale). This post-hoc justification for stops and
searches has been repeatedly rejected. See, e.g. , Florida v.
J.L., 120 S. Ct. 1375, 1379 (2000) ("The reasonableness of
official suspicion must be measured by what the officers
knew before they conducted their search.").

As with the case of the hypothetical wallet holder, the
authorities here had no reason to know that Ubiles's gun
was unregistered or that the serial number had been

                               9
altered. Moreover, they did not testify that it is common for
people who carry guns in crowds--or crowds of drunken
people--to either alter or fail to register their guns, or to
use them to commit further crimes--all of which would be
additional evidence giving rise to the inference that Ubiles
may have illegally possessed his gun or that criminal
activity was afoot. Therefore, as with the wallet holder, the
authorities in this case had no reason to believe that Ubiles
was engaged in or planning or preparing to engage in illegal
activity due to his possession of a gun. Accordingly, in
stopping him and subsequently searching him, the
authorities infringed on Ubiles's Fourth Amendment rights.

Lockhart's in-court testimony during Ubiles's trial does
not undermine this conclusion. Lockhart testified at trial
about how he saw Ubiles come to possess the gun. He
stated that another man surreptitiously handed the gun to
Ubiles, and that Ubiles slipped the gun into his pocket. The
nature of this exchange could give rise to the inference that
Ubiles was not the gun's owner. One could further infer
based on this original inference, that, because Ubiles was
not the gun's owner, he illegally possessed the gun, for it is
illegal to possess a gun in the Virgin Islands that is not
registered in your own name. See V.I. CODE ANN. tit. 14,
S 2253(a); V.I. CODE ANN. tit. 23, S 470. But there was no
testimony introduced at the suppression hearing that
Lockhart had told Leonard, before the search, that another
man had surreptitiously handed the gun to Ubiles. As
noted above, "[t]he reasonableness of official suspicion
must be measured by what the officers knew before they
conducted their search," J.L., 120 S. Ct. at 1379 (emphasis
added); hence the Government cannot rely on this fact in
arguing that Lockhart's testimony in this regard is relevant
in assessing the constitutionality of the stop in question.3
_________________________________________________________________

3. In engaging in the analysis in the three paragraphs above, we intimate
no view as to whether this additional hypothetical information would
have been sufficient to warrant a finding of reasonable suspicion. The
information would represent additional evidence (weighing in favor of a
finding of reasonable suspicion) in " `the totality of the circumstances'
"
a court must consider in determining whether a stop was reasonable.
United States v. Sokolow, 490 U.S. 1, 8 (1989) (quoting United States v.
Cortez, 449 U.S. 411, 417 (1981)).

                               10
C.

Nor can the Government rely on the fact that this stop
took place during a crowded festival to make up for the lack
of reasonable suspicion present in this case. We decline the
Government's invitation to extend to crowds generally the
Supreme Court's relaxed search and seizure jurisprudence
dealing with close quarters, and the special risks attendant
thereto, in airports and schools. In Florida v. J.L., the
Supreme Court opined:

       The facts of [Florida v. J.L.] do not require us to
       speculate about the circumstances under which the
       danger alleged in an anonymous tip might be so great
       as to justify a search even without a showing of
       reliability. We do not say, for example, . . . . that public
       safety officials in quarters where the reasonable
       expectation of Fourth Amendment privacy is
       diminished, such as airports, see Florida v. Rodriguez,
       469 U.S. 1 (1984) (per curiam), and schools, see New
       Jersey v. T.L.O., 469 U.S. 325 (1985), cannot conduct
       protective searches on the basis of information
       insufficient to justify searches elsewhere.

120 S. Ct. at 1380.

We believe that neither the heightened safety concerns
observed at airports, nor the pedagogical and safety
concerns implicated at schools obtain any time a crowd of
adults congregates. If that were not the case, citizens
farming under the open skies of Washington or Vermont
would generally have greater Fourth Amendment
protections than their compatriots bustling to work in
Manhattan or Boston. As a general proposition of
constitutional law, this cannot be so; Terry applies equally
in each of these locales.

A California court of intermediate appeals reached a
similar conclusion on similar facts:

        This court believes that the fact that respondent was
       in a [crowded] public [street] close to[presidential
       candidate] Gary Hart is not relevant under the
       circumstances of this case to the issue of whether
       respondent had a legitimate expectation of privacy. . . .

                               11
       "[T]he Fourth Amendment's protections against
       unreasonable seizure of effects upon the person
       remains fully applicable." ([Oliver v. United States, 466
       U.S. 170, 179 (1984)].) "[T]he Fourth Amendment
       protects people--and not simply `areas'--against
       unreasonable searches and seizures." (Katz v. United
       States, [389 U.S. 347, 353 (1967)]). "Unquestionably
       petitioner was entitled to the protection of the Fourth
       Amendment as he walked down the street in
       Cleveland." (Terry v. Ohio, 392 U.S. 1, 9 (1968)).

People v. Carlson, 233 Cal. Rptr. 236, 241 (Cal. Ct. App.
1986); see id. at 241 n.5 (also rejecting the argument that
because "any member of that crowd could have felt
respondent's waist area, and it was arguably foreseeable
that someone in the crowd would bump up against
respondent and feel the area around his waist, then[the
officer's] touch was limited to areas in `plain view,'
accessible by members of the public"). We agree with this
reasoning.

III.

For the foregoing reasons, the judgment of the District
Court will be reversed. The firearm seized from Ubiles
should have been suppressed as the fruit of an unlawful
seizure.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               12
