                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-16-2007

USA v. Laville
Precedential or Non-Precedential: Precedential

Docket No. 06-1577




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                                          PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 06-1577


              UNITED STATES OF AMERICA,
                                Appellant

                              v.

                      KEVIN LAVILLE


APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF THE VIRGIN ISLANDS
               D.C. Crim. No. 04-cr-00142-1
     District Judge: The Honorable Curtis V. Gomez


                  Argued: December 4, 2006


 Before: McKEE, BARRY and STAPLETON, Circuit Judges

               (Opinion Filed: March 16, 2007)




John-Alex Romano, Esq. (Argued)
United States Department of Justice
Criminal Division
P.O. Box 899
Ben Franklin Station
Washington, D.C. 20044-0899
      -AND-
Angela P. Tyson-Floyd, Esq.
Office of the United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
USVI, 00820

Counsel for Appellant


Natalie N. Tang How, Esq. (Argued)
27 & 28 King Cross Street
Christiansted, St. Croix
USVI, 00820

Counsel for Appellee




                  OPINION OF THE COURT




BARRY, Circuit Judge

       What is required for a finding of probable cause within
the meaning of the Fourth Amendment can be a difficult
question, made more difficult when, as here, there is a
misunderstanding as to what one of our decisions has held. We
write to correct that misunderstanding by making clear that state
or local law does not dictate the reasonableness of an arrest for
purposes of a Fourth Amendment probable cause analysis—a
violation of state or local law is not, in other words, a per se
violation of the Fourth Amendment. Rather, notwithstanding the
validity of the arrest under state or local law, probable cause
exists when the totality of the circumstances within an officer’s
knowledge is sufficient to warrant a person of reasonable caution
to conclude that the person being arrested has committed or is
committing an offense. We find that the circumstances
surrounding the warrantless arrest before us gave rise to
probable cause to believe that an offense had been committed

                               2
and rendered that arrest reasonable under the Fourth
Amendment. We will, therefore, reverse.

                                I.

       In the early morning hours of Tuesday, August 17, 2004,
sometime before 7:00 A.M., a boat carrying 32 illegal aliens ran
aground on a reef in Christiansted harbor, St. Croix. An
eyewitness on the wharf phoned the Virgin Islands Police
Department (“VIPD”) to report that illegal aliens were exiting
the boat and coming ashore.

        Officer Aldemar Santos of the VIPD Marine Unit
responded to the call between 7 and 8:00 A.M. From the wharf,
he confirmed that a boat had indeed run aground in the harbor
and that a number of people were still onboard. He also spoke
with the citizen who had phoned the police, Mark Sperber, and
Sperber pointed out four Hispanic-looking individuals sitting
nearby on the boardwalk. Santos approached them and
identified himself as a police officer. In response to his
questioning, the individuals stated that they were Cubans, that
they had come off the stranded boat, and that other aliens were
in the vicinity.

       Sperber independently advised Santos that other illegal
aliens had come ashore and were around the corner. As
additional police units arrived, Sperber offered to identify the
other aliens. Santos, Sperber, and several uniformed officers
walked down the boardwalk and around the corner, and Sperber
pointed out three black males sitting on a bench. When the men
saw the approaching officers, Santos later testified, “they stood
up and started walking away really fast.” (App. vol. II at 39.)

        Hoping to cut the men off, Santos walked down a side
street while the other officers continued to follow the three men.
On his radio, he heard an officer shout “he’s running” and
another officer say that one of the men was heading toward a
shopping area on Strand Street. Santos proceeded in the
direction of the shopping area, where he saw appellant Kevin
Laville, who he recognized as one of the men who had been

                                3
sitting on the bench. Upon spotting Santos, Laville began to run,
but stopped when Santos yelled “Police; stop.” Santos ordered
Laville to put his hands up, patted him down, and placed him in
handcuffs.

       As they walked back to the police car, Laville stated, in
response to Santos’s questions, that he was from Dominica and
was a crew member on the stranded boat. Laville asked what
island he was on, but Santos believed that Laville knew he was
on St. Croix. Meanwhile, the other officers apprehended all of
the individuals who had come ashore. Later that morning,
agents from Immigration and Customs Enforcement (“ICE”)
came to the police station and took custody of all of the detained
individuals, including Laville.

        The next day, utilizing a photo array of all 32 individuals
who had been on the boat, four of the Cuban passengers
identified Laville and co-defendant Carter Magloire as the boat’s
operators. That same day, ICE Agent David Levering and
Officer Santos conducted a videotaped interview of Laville.
After being advised of his Miranda rights, he again stated that he
was from Dominica and had helped to operate the boat. He also
said that he believed he had landed on the island of Tortola in
the British Virgin Islands. Five additional passengers
subsequently identified Laville as a member of the boat’s crew.

       On September 14, 2004, a federal grand jury returned a
three-count indictment charging Laville and Magloire with
conspiracy to bring in illegal aliens in violation of 8 U.S.C. §
1324(a)(1)(A)(v)(i) (Count 1); bringing in illegal aliens for
financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) (Count
2); and bringing in illegal aliens in violation of 8 U.S.C. §
1324(a)(1)(A)(i) (Count 3). The District Court later severed
Laville’s case from that of Magloire, and Magloire was tried and
convicted on Counts 2 and 3.

       Laville filed pro se motions to suppress the identifications
and any evidence obtained as a result of his arrest, including
statements made to Officer Santos and ICE. On August 16,
2005, the District Court held a suppression hearing at which

                                4
Laville was represented by counsel. Officer Santos and ICE
Agents Levering and Kirk Thomas testified to the circumstances
of Laville’s arrest, his post-arrest statements, his identification
by various passengers, and his ICE interview.

      On February 2, 2006, the District Court granted Laville’s
motion to suppress his post-arrest statements to the VIPD and
ICE, but denied his motion to suppress the identifications. The
government timely appealed.

                                II.

       We have jurisdiction over this interlocutory appeal of a
suppression order pursuant to 18 U.S.C. § 3731. In reviewing a
suppression order, we exercise plenary review over the District
Court’s legal conclusions, and we review the underlying factual
findings for clear error. United States v. Delfin-Colina, 464 F.3d
392, 395-96 (3d Cir. 2006).1

A.     Laville’s Post-Arrest Statements to Officer Santos

        The District Court found that Officer Santos arrested
Laville without a warrant, and that at the time of the arrest
probable cause to believe Laville was an alien smuggler was
lacking. At most, the District Court found, there was probable
cause to believe only that Laville had entered the United States
illegally in violation of 8 U.S.C. § 1325—a misdemeanor.
Citing, but misreading, our decision in United States v. Myers,
308 F.3d 251 (3d Cir. 2002), the District Court concluded that
because the validity of an arrest is determined by the law of the
state where the arrest occurred, it need look no further than
Virgin Islands statutory law to determine the reasonableness of
Laville’s arrest under the Fourth Amendment. Under 5 V.I.C. §



       1
           Laville has filed a pro se Rule 28(j) letter raising
numerous constitutional objections to his prosecution and to United
States immigration policy. As these are neither proper subjects for
a Rule 28(j) letter nor proper matters for consideration on
interlocutory appeal, we do not consider them.

                                 5
3562(1), a misdemeanor must be committed in the presence of
the officer in order to justify a warrantless arrest. Because the
crime of illegal entry was completed before the officers arrived,
the District Court reasoned, Santos had no authority under
Virgin Islands law to conduct a warrantless arrest. Accordingly,
there was a per se violation of the Fourth Amendment, and the
Court suppressed Laville’s post-arrest statements.

       Because the government, too, misreads Myers, it does not
challenge the District Court’s conclusion that an arrest that is
invalid under territorial law—or state or local law—is
unreasonable per se under the Fourth Amendment. Instead, the
government argues that Laville’s arrest was lawful because the
crime of illegal entry had not been completed before the officers
arrived or, alternatively, that illegal entry is a continuing offense.
We need not address these arguments, however, because the
reasonableness of Laville’s arrest under the Fourth Amendment
does not depend on whether it was lawful under territorial law.

B.     Our Holding in Myers

       We are compelled, at the outset, to clarify what we did
and did not hold in Myers. Myers concerned a police officer’s
entry into an apartment in response to a report of possible
domestic violence involving a person with a gun, and the
subsequent arrest of the defendant because of the officer’s
suspicion that a crime was underway. We concluded that the
officer was justified in entering the apartment but lacked
probable cause to arrest the defendant once inside. Myers, 308
F.3d at 265. In reaching this conclusion, we painstakingly
examined all of the circumstances within the officer’s
knowledge at the time of the arrest. We did not consider these
circumstances in isolation, but necessarily measured them
against the potential offenses for which the defendant could
conceivably have been charged. We found that the
circumstances surrounding the arrest were insufficient to justify
a reasonable belief that any offense had been committed. Id. at
284 (Alarcon, J., dissenting) (“The Majority has concluded that
Officer Azzarano did not have probable cause to arrest Myers for
any crime.”).

                                  6
        One of the state-law crimes we considered was the
misdemeanor offense of simple assault. In discussing that
offense, we noted a Pennsylvania statute authorizing warrantless
arrests for misdemeanors only when they are committed in the
presence of the arresting officer or when specifically authorized
by statute. Noting that the validity of an arrest is determined by
the law of the state where the arrest occurred, id. at 255, we
concluded that the officer’s warrantless arrest for simple assault
“is not authorized under Pennsylvania law unless the record
establishes that a simple assault occurred in his presence.” Id. at
256 (emphasis added). It is important to note that we did not
address the relationship between Pennsylvania law and the
federal law of probable cause, and we certainly did not hold that
the former dictated the latter. Indeed, we made it quite clear that
the validity of an arrest under state law must never be confused
or conflated with the Fourth Amendment concept of
reasonableness, and that the validity of an arrest under state law
is at most a factor that a court may consider in assessing the
broader question of probable cause.2 Cf. Ker v. California, 374
U.S. 23, 38 (1963) (plurality opinion) (considering whether
arrest was reasonable under the Fourth Amendment
“notwithstanding its legality under state law”). In conclusion,
we held that the totality of the circumstances did not give rise to
probable cause to believe that an assault had occurred at all,
much less in the arresting officer’s presence. Myers, 308 F.3d at
258 (noting that the arresting officer’s testimony “does not
establish a reasonable belief that Myers had assaulted Bennett,
and it certainly does not establish any assault in the officer’s
presence”); see also id. at 262 (“[T]he testimony does not
support a finding that the officer had a reasonable belief that
Myers had been involved in a physical altercation with Bennett.



       2
          Other courts of appeals are in accord. See, e.g., United
States v. Mikulski, 317 F.3d 1228, 1232 (10th Cir. 2003); Pasiewicz
v. Lake County Forest Preserve Dist., 270 F.3d 520, 527 (7th Cir.
2001); United States v. Baker, 16 F.3d 854, 856 n.1 (8th Cir. 1994);
cf. Atwater v. City of Lago Vista, 532 U.S. 318, 341-45 (2001)
(considering state law as one measure of the reasonableness of
warrantless arrests for misdemeanors).

                                 7
Likewise, the testimony does not corroborate that a ‘struggle
occurred or that the officer thought one had.’”).

       We did not hold in Myers and, indeed, have never held
that an arrest that is unlawful under state or local law is
unreasonable per se under the Fourth Amendment. Yet, the
District Court effectively applied just such a per se rule when it
held that Santos’s warrantless arrest for a misdemeanor that
arguably did not occur in his presence violated 5 V.I.C. §
3562(1), the Virgin Islands’s misdemeanor-presence statute, and
was, therefore, unreasonable under the Fourth Amendment.

        A per se rule inappropriately draws federal courts into the
enforcement of state and local law. By suppressing Laville’s
post-arrest statements because it found a violation of the Virgin
Islands’s misdemeanor-presence rule, the District Court was, in
effect if not in fact, enforcing territorial criminal procedure, and
doing so in a prosecution by the federal government for a
violation of federal law. It is well understood, however, that
“[m]ere violation of a state statute does not infringe the federal
Constitution,” and that “[s]tate rather than federal courts are the
appropriate institutions to enforce state rules.” Archie v. City of
Racine, 847 F.2d 1211, 1216, 1217 (7th Cir. 1988) (en banc); see
also Johnson v. Fankell, 520 U.S. 911, 919 (1997) (noting “‘the
importance of state control of state judicial procedure’” (quoting
Henry M. Hart, Jr., The Relations Between State and Federal
Law, 54 Colum. L. Rev. 489, 508 (1954))); Poulos v. State of
New Hampshire, 345 U.S. 395, 409 (1953) (stating, in the due
process context, that “official failures to act in accordance with
state law, redressable by state judicial procedures,” are not “state
acts violative of the Federal Constitution”). A per se rule of
reasonableness would inappropriately enlist federal courts in the
enforcement of state rules of criminal and judicial procedure.

        Application of a per se rule could also lead to the creation
of different standards governing arrests made by peace officers
of different states for the same federal offense. Conceivably,
fifty different constitutional standards of arrest, each one
dictated by a respective state’s positive and decisional law, could
result. What would be reasonable and constitutional in one state

                                 8
could be unreasonable and unconstitutional in another.
Meanwhile, federal courts of appeals would be compelled to
recognize—and, indeed, to perpetuate—such disparities among
the states and territories within their jurisdictions. If, for
instance, we were to uphold the District Court’s application of a
per se rule here, we might nevertheless conclude, in some future
case, that an otherwise identical arrest occurring in New Jersey is
reasonable and constitutional. Such a patchwork of federal
constitutional standards, arising as it were from the individual
legislative enactments of the various states and territories, is
inconsistent with our single federal constitution. See Martin v.
Hunter’s Lessee, 14 U.S. (1Wheat.) 304, 347-48 (1816) (noting
“the importance, and even necessity of uniformity of decisions
throughout the whole United States, upon all subjects within the
purview of the constitution”).

       Moreover, a per se rule could well create disparity in the
constitutionality of arrests performed by state and federal
officers for the same offense within the same state or territory. It
is easy to imagine a scenario in which officers of the VIPD and
officers of the ICE, working on a joint law-enforcement detail,
simultaneously approach a group of suspected illegal aliens
under circumstances similar to those presented here. Acting on
what they believe to be probable cause, a VIPD officer and an
ICE officer make simultaneous, warrantless arrests. If we were
to apply a per se rule, we would likely be compelled to find that
the arrest made by the VIPD officer was unreasonable per se
and, therefore, unconstitutional, whereas the identical arrest
made by the ICE officer was reasonable and constitutional. The
Fourth Amendment does not permit, much less require, any such
thing.

       By engrafting territorial procedural requirements onto the
federal constitutional standards governing seizure, the District
Court went beyond simply determining the reasonableness of
Laville’s arrest. Rather, the Court effectively required Santos to
be certain that a misdemeanor had been committed, by virtue of
having witnessed its commission, and to ensure that conviction
was possible. A significant body of caselaw makes clear why
any such requirements simply cannot be, and why a Fourth

                                 9
Amendment determination cannot turn on the exigencies of the
law of a particular state or territory or an officer’s knowledge of
the elements of a particular offense and whether each element
has been satisfied. “The test is one of federal law, neither
enlarged by what one state may have countenanced nor
diminished by what another may have colorably suppressed.”
Elkins v. United States, 364 U.S. 206, 223-24 (1960). As the
Supreme Court emphasized in Draper v. United States, there is a
“‘difference between what is required to prove guilt in a criminal
case and what is required to show probable cause for arrest or
search.’” 358 U.S. 307, 311-12 (1959) (quoting Brinegar v.
United States, 338 U.S. 160, 173 (1949)). And, as Judge
Learned Hand recognized more than sixty years ago, the
“‘reasonable cause’ necessary to support an arrest cannot
demand the same strictness of proof as the accused’s guilt upon
a trial, unless the powers of peace officers are to be so cut down
that they cannot possibly perform their duties.” United States v.
Heitner, 149 F.2d 105, 106 (2d Cir. 1945) (quoted in Draper,
358 U.S. at 312 n.4); see also Graham v. Connor, 490 U.S. 386,
396 (1989) (stating that in determining whether use of force
violates the Fourth Amendment, “‘reasonableness’ . . . must be
judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight”).

        And it is reasonableness that is the central inquiry under
the Fourth Amendment. United States v. Williams, 417 F.3d
373, 376 (3d Cir. 2005). “[S]ufficient probability, not certainty,
is the touchstone of reasonableness under the Fourth
Amendment.” Hill v. California, 401 U.S. 797, 804 (1971); see
also Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813)
(recognizing that probable cause “means less than evidence
which would justify condemnation”). Probable cause exists
whenever reasonably trustworthy information or circumstances
within an arresting officer’s knowledge are sufficient to warrant
a person of reasonable caution to conclude that an offense has
been or is being committed by the person being arrested.
Draper, 358 U.S. at 313; Myers, 308 F.3d at 255.




                                10
C.     Laville’s Arrest Was Supported by Probable Cause

        We must, therefore, determine whether Officer Santos’s
warrantless arrest satisfied the Fourth Amendment’s requirement
that the arrest be reasonable. Reasonable suspicion and probable
cause are determined with reference to the facts and
circumstances within the officer’s knowledge at the time of the
investigative stop or arrest. Devenpeck v. Alford, 543 U.S. 146,
152 (2004); Florida v. J.L., 529 U.S. 266, 271 (2000). The
arresting officer need not have contemplated the specific offense
for which the defendant ultimately will be charged. The
appropriate inquiry, rather, is whether the facts and
circumstances within the officer’s knowledge at the time of an
investigative stop or arrest objectively justify that action.
Devenpeck, 543 U.S. at 153.

        Santos went to the wharf between 7 and 8:00 A.M. to
investigate a report, phoned in by Sperber, that a boat had run
aground in Christiansted harbor and illegal aliens were coming
ashore. When he arrived at the wharf, Santos observed firsthand
that there was in fact a boat stranded in the harbor with a number
of people still onboard. He also met face-to-face with Sperber,
who pointed out a group of four individuals sitting nearby on the
boardwalk. These individuals identified themselves to Santos as
Cubans who “came into shore” off the boat (App. vol. II at 38),
and, as the District Court found, “indicated that other aliens were
in the vicinity” (App. vol. I at 6). Sperber separately informed
Santos that more suspected aliens were “around the corner” and
offered to point them out. (App. vol. II at 39.) Acting on this
information, Santos and his fellow officers walked down the
boardwalk and around the corner, and, there, found Laville and
two companions sitting on a bench.

       Taking these facts together with all reasonable inferences,
see Terry v. Ohio, 392 U.S. 1, 27 (1968), we find that by the
time Santos approached Laville and his companions on the
boardwalk, he had, at the very least, reasonable suspicion to
believe that criminal activity was afoot. If no further
circumstances had existed, Santos would have been justified in
performing an investigative stop of Laville and his companions.

                                11
As it so happened, however, subsequent events elevated Santos’s
reasonable suspicion to the level of probable cause for an arrest.

        When Laville and his companions spotted the
approaching police officers, they immediately “stood up and
started walking away really fast.” (App. vol. II at 39.) Their
actions did not evidence an intent simply to go about their
business, see Florida v. Royer, 460 U.S. 491, 497-98 (1983);
rather, the men suddenly, and deliberately, fled. The rapid
walking soon gave way to headlong flight: Santos heard a fellow
officer exclaim of one of the suspects, “he’s running,” and
personally observed Laville in open flight. (App. vol. I at 6-7.)

          It is “well established that where police officers
reasonably suspect that an individual may be engaged in criminal
activity, and the individual deliberately takes flight when the
officers attempt to stop and question him, the officers generally
no longer have mere reasonable suspicion, but probable cause to
arrest.” United States v. Sharpe, 470 U.S. 675, 705 (1985)
(Brennan, J., dissenting); see also Peters v. New York, decided
with Sibron v. New York, 392 U.S. 40, 66-67 (1968)
(“[D]eliberately furtive actions and flight at the approach of
strangers or law officers are strong indicia of mens rea, and
when coupled with specific knowledge on the part of the officer
relating the suspect to the evidence of crime, they are proper
factors to be considered in the decision to make an arrest.”); 2
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 3.6 (4th ed. 2007) (“[I]f there already exists a
significant degree of suspicion concerning a particular person
. . ., the flight of that individual upon the approach of the police
may be taken into account and may well elevate the pre-existing
suspicion up to the requisite Fourth Amendment level of
probable cause.” (internal footnotes omitted)). “Headlong
flight—wherever it occurs—is the consummate act of evasion: It
is not necessarily indicative of wrongdoing, but it is certainly
suggestive of such.” Illinois v. Wardlow, 528 U.S. 119, 124
(2000). Thus, when Laville fled at the sight of the approaching
officers, Santos no longer merely had reasonable suspicion to
believe that criminal activity was afoot; he now had probable
cause to make an arrest. We find that, given the totality of the

                                12
circumstances, Santos’s arrest of Laville was reasonable and did
not violate the Fourth Amendment.

D.     Laville’s Custodial Statement to ICE

        Having erroneously found that Laville’s arrest was
unlawful and that his statements to Santos must be suppressed,
the District Court next considered the statement Laville made
while in ICE custody. The District Court determined that a “new
arrest” occurred when the VIPD transferred Laville into the
custody of ICE. Finding that the government failed to make an
independent showing of probable cause for this new arrest, the
District Court ordered that Laville’s custodial statement to ICE
also be suppressed.

        If Laville’s arrest had been unreasonable under the Fourth
Amendment, then the District Court may have been correct to
suppress his custodial statement to ICE as fruit of the poisonous
tree. See Wong Sun v. United States, 371 U.S. 471, 484-86
(1963). We need not decide this question, however, because
Laville’s arrest was reasonable. Where his initial arrest by
territorial authorities did not violate the Fourth Amendment, ICE
was not required to make an independent showing of probable
cause before assuming custody. Such custodial transfers are
relatively common in the immigration context, see, e.g., United
States v. Bowley, 435 F.3d 426, 428 (3d Cir. 2006); Yang v.
Maugans, 68 F.3d 1540, 1544 (3d Cir. 1995), and none of the
authorities cited by the District Court, and none of which we are
aware, even implies that a custodial transfer constitutes a “new
arrest” requiring a separate showing of probable cause. See, e.g.,
California v. Hodari D., 499 U.S. 621, 624-28 (1991)
(discussing when a Fourth Amendment “seizure” occurs, but not
discussing a transfer of custody); Payton v. New York, 445 U.S.
573, 590 (1980) (involving warrantless entry of a home for
purposes of making felony arrest); Sharrar v. Felsing, 128 F.3d
810, 819-20 (3d Cir. 1997) (same); United States v. Sanchez, 509
F.2d 886, 889 (6th Cir. 1975) (involving the Fourth
Amendment’s particularity requirement for search warrants).
We therefore find that Laville’s transfer into ICE custody was
not a “new arrest” requiring an independent showing of probable

                               13
cause, and that the District Court erred in suppressing Laville’s
subsequent statement to ICE.

                                III.

        In determining whether an arrest is reasonable under the
Fourth Amendment, courts must never lose sight of the
fundamental principle that “‘reasonable suspicion’ and ‘probable
cause’ . . . are commonsense, nontechnical conceptions that deal
with ‘the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act.’”
Ornelas v. United States, 517 U.S. 690, 695 (1996) (some
internal quotation marks omitted) (quoting Illinois v. Gates, 462
U.S. 213, 231 (1983)); see also Sharrar, 128 F.3d at 818 (stating
that courts must “use a ‘common sense’ approach to the issue of
probable cause”). It is not consistent with this principle to
determine the reasonableness of an arrest based solely upon the
arresting officer’s technical compliance with state or local law.

        Accordingly, we hold that the unlawfulness of an arrest
under state or local law does not make the arrest unreasonable
per se under the Fourth Amendment; at most, the unlawfulness
is a factor for federal courts to consider in evaluating the totality
of the circumstances surrounding the arrest. Because the District
Court erroneously held that Officer Santos’s warrantless arrest
was unreasonable per se and because it erroneously held that
Laville’s transfer to ICE custody required a separate showing of
probable cause, we will reverse the District Court’s order
suppressing Laville’s post-arrest statements and remand for
further proceedings consistent with this Opinion.




                                 14
McKee, Concurring
        I join Judge Barry’s analysis and opinion. However, two
concerns cause me to write separately. First, I am concerned
that the certification the Government filed pursuant to 18 U.S.C.
§ 3731 may be disingenuous. Second, I think this case can be
decided entirely on the basis of our decision in Yang v.
Maugans, 68 F.3d 1540 (3d Cir. 1995). However, given the
apparent confusion arising from our decision in United States v.
Myers, 308 F.3d 251 (3d Cir. 2002), I join Judge Barry in taking
this opportunity to clarify our holding there.
                I. The Government’s Certification.
        18 U.S.C. § 3731 allows the Government an interlocutory
appeal of an order suppressing evidence if, and only if, “the
United States attorney certifies to the district court that the
appeal is not taken for purpose of delay and that the evidence is
a substantial proof of a fact material in the proceeding.” 18
U.S.C. § 3731, ¶ 2. The Government clearly did not take this
appeal for purposes of delay, but I am skeptical of the claim that
the evidence the District Court suppressed was “substantial
proof of a fact material” to the charges against Laville, as it must
be if we are to have jurisdiction over an interlocutory order.
        Laville was charged with illegally bringing aliens into the
United States in violation of 8 U.S.C. § 1324(a)(1)(A)(I), doing
so for financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii),
and conspiring to do so in violation of 8 U.S.C. §
1324(a)(1)(A)(v)(I). As the majority explains, after he was
apprehended by Officer Santos, Laville said that he was from
Dominica, and that he had been a crew member on the stranded
boat. The day after he was apprehended, Santos was turned over
to agents from Immigration Customs and Enforcement, and he
repeated those statements to them. He added only that he thought
he had landed on Tortola, an island in the British Virgin Islands.
Those are the statements that the District Court suppressed, and
that is the evidence that purportedly constitutes “substantial
proof of a material fact” in Laville’s prosecution.
        8 U.S.C. § 1324 makes it a crime for anyone to knowingly
“bring . . . [an alien] to the United States . . . at a place other than
a designated port of entry . . . .” 8 U.S.C. § 1324(a)(1)(A)(I).
The various subsections Laville was charged with violating
specify penalties for bringing aliens into the United States, doing

                                  15
so for financial gain, or conspiring to do so. The citizenship or
residence of the person who illegally brings aliens into the
United States is irrelevant. A United States citizen can be
convicted of illegally bringing aliens into the United States (and
the related offenses) the same as a legal permanent resident or an
illegal alien. The Government need only prove that a defendant
brought illegal aliens into the United States at a location other
than “a designated port of entry,” and that he/she did so
knowingly. I therefore fail to see how Laville’s citizenship can
acquire the materiality the Government has claimed by filing this
appeal and the concomitant certification under § 3731. Laville’s
statement that he was a crew member is relevant because it
establishes that he actually facilitated the passengers’ illegal
arrival into the United States and creates an inference that he did
so for financial gain (as a paid crew member). However, the
Government did not need his post-arrest statements to establish
that he was a crew member. As Judge Barry notes, several of the
passengers identified Laville and a co-defendant as the boat’s
operators. The post-arrest statements that are the subject of this
interlocutory appeal may flush out a bit of detail and provide
some colorful background, but they are certainly not “substantial
proof of a fact material in the proceeding.” I therefore doubt that
the § 3731 certification was afforded the consideration Congress
intended. Rather, it appears to have been reflexively filed in
order to challenge a ruling the Government disagreed with.
        I realize that we are not in a position to understand all of
the dynamics of this prosecution, and that there may be an
explanation for the Government’s certifying that Laville’s
apparently superfluous statements are material to his prosecution
that is not evident on appeal. However, the record certainly does
not suggest any such explanation, and the Government was not
able to provide one when asked during oral argument.3



       3
          For example, it is conceivable that the Cuban witnesses
were either unavailable or uncooperative. In that event, Laville’s
admission that he operated the boat would become crucial to the
Government’s proof. However, nothing on this record suggests
that is the case, and the Government offered no such explanation
when queried about the certification during oral argument.

                                16
        I also realize that we do not look behind the United States
Attorney’s certification under § 3731, nor question its veracity.
See Gov’t of V.I. v. Hodge, 359 F.3d 312, 325 (3d Cir. 2004)
(“The United States Attorney’s word is enough; the reviewing
court does not consider the truth of the certification.”).
Nevertheless, I think it is clear that the Congress did not intend
the certification to function only as a procedural calisthenic that
the Government can employ whenever it disagrees with the
District Court’s suppression ruling. I hope that the Government
has not regarded it as such here.
 II. The Arrest Was Legal Even Under Virgin Islands Law.
        As Judge Barry explains, the District Court concluded
that Officer Santos did not have probable cause to arrest Laville
for smuggling aliens. The court believed that Santos had, at
most, probable cause to believe Laville had entered the United
States illegally in violation of 8 U.S.C. § 1325. Under Virgin
Islands law, local law enforcement officers have authority to
arrest for violations of federal immigration laws. See, e.g.,
United States v. Santana-Garcia, 264 F.3d 1188, 1193-94 (10th
Cir. 2001). Nevertheless, the court suppressed Laville’s
statements because illegal entry into the United States is a
misdemeanor. Under the law of the Virgin Islands, Officer
Santos could not make a warrantless arrest for a misdemeanor
unless the offense was committed in his presence.4 The District
Court erroneously concluded that that requirement governed the
admissibility of the suppressed evidence.
        “The definition of ‘entry’ as applied for various purposes
in our immigration laws was evolved judicially . . .”, Rosenberg
v. Fleuti, 374 U.S. 449, 453 (1963). As used in immigration
law, entry requires more than physical presence in the United
States; it also requires freedom from official restraint. United
States v. Pacheco-Medina, 212 F.3d 1162, 1164 (9th Cir. 2000).
The requirement that the alien be free from official restraint to
accomplish an entry into the United States applies to the crime


       4
          5 V.I.C. § 3562 provides: “A peace officer may make an
arrest in obedience to a warrant delivered to him, or may, without
a warrant, arrest a person – (1) for a public offense committed or
attempted in his presence.”

                                17
of illegal entry in violation of 8 U.S.C. § 1325, as well as the
crime of illegal re-entry under 8 U.S.C. § 1326. See United
States v. Vasilatos, 209 F.2d 195, 197 (3d Cir. 1954) (illegal re-
entry); United States v. Gonzalez-Torres, 309 F.3d 594, 598 (9th
Cir. 2002) (illegal entry and illegal re-entry); Pacheco-Medina,
212 F.3d at 1164-65 (illegal re-entry); United States v. Angeles-
Mascote, 206 F.3d 529, 531 (5th Cir. 2000) (illegal re-entry).
        In Yang v. Maugans, 68 F.3d 1540 (3d Cir. 1995), we
had to determine if an entry had been accomplished by aliens on
a smuggling ship that ran aground off the coast of New York.
Some of the 300 passengers on that ship managed to swim
ashore before being apprehended, and we had to decide if their
physical presence in New York effectuated an entry into the
United States within the meaning of then-section 101 of the
Immigration and Nationalities Act.5 The police had responded
immediately and they had cordoned off the area of the beach
where the aliens had landed. None of the aliens ever left the
beach area, and they were all arrested within thirty minutes of
their arrival.
        Quoting from the BIA’s decision in Matter of G-, Int.
Dec. 3215, at 5-7 (BIA 1993), we explained that an entry into
the United States requires: “‘(1) crossing into the territorial
limits of the United States, i.e., physical presence; (2)(a)
inspection and admission by an immigration officer, or (b)
actual and intentional evasion of inspection at the nearest entry
point; and (3) freedom from official restraint.’” 68 F.3d at
1545. We held that the aliens never entered the United States
because they never satisfied the third requirement; they were
never free from official restraint. We explained:


       5
         Resolution of that issue determined the kind of hearing the
aliens were entitled to. An alien who has “entered” the United
States is entitled to a removal proceeding, while an alien who has
not “entered” can be refused admission through a summary
exclusion proceeding. In a removal proceeding, the alien receives
many advantages not available to an alien in an exclusion
proceeding, including advance notice of the charges, appeal to an
appellate court, and the right to a country of designation. Yang, 68
F.3d at 1547.

                                18
       When an alien attempts to enter the United States,
       the mere fact that he or she may have eluded the
       gaze of law enforcement for a brief period of time
       after having come upon United States territory is
       insufficient, in and of itself, to establish freedom
       from official restraint.

Id. at 1550. Thus, in Yang as here, none of the defendants was
ever free from official restraint once they touched shore.
        None of the petitioners ever left the beach area,
        which was teeming with law enforcement activity
        soon after the [the smuggling vessel] ran aground.
        Nor were any of the petitioners free to . . . go at
        large and mix with the general population. Far
        from indistinguishably mixing with the general
        population, petitioners either were apprehended
        shortly after coming ashore, or were brought into
        custody as a result of immediate and intense law
        enforcement efforts. We therefore conclude[d]
        that the petitioners were never free from official
        restraint.

Id. (Ellipsis in original, internal citation omitted).
        Although the police response here was not as intense as
the response in Yang, I do not believe that the difference rises to
the level of a legal distinction for purposes of determining if
Laville had managed an “entry” under our immigration laws.
Laville was never free to “go at large and mix with the general
population,” he was “apprehended shortly after coming ashore,”
and he was “brought into custody as a result of immediate and
[relatively] intense law enforcement efforts.” Given the holding
in Yang, the District Court should have concluded that the
offense of illegal entry was committed in the presence of Officer
Santos; it clearly was. Accordingly, Laville’s post-arrest
statements should not have been suppressed.6


       6
        As is evident from Judge Barry’s analysis, my discussion
in no way suggests that the legality of Laville’s arrest turns on
whether a misdemeanor was committed in Officer Santos’

                                19
STAPLETON, dissenting:

       I read our decision in United States v. Myers, 308 F.3d
251 (3d Cir. 2002), in the same manner as did the District Court
and the parties in this case.

       In Myers, we began our analysis by observing: “The
validity of an arrest is determined by the law of the state where
the arrest occurred. See Ker v. California, 374 U.S. 23, 37
(1963) (plurality opinion).” 308 F.3d at 255. The cited portion
of Ker reads as follows:

       This Court, in cases under the Fourth Amendment,
       has long recognized that the lawfulness of arrests
       for federal offenses is to be determined by
       reference to state law insofar as it is not violative
       of the Federal Constitution. A fortiori, the
       lawfulness of these arrests by state officers for
       state offenses is to be determined by California
       law.

Ker, 374 U.S. at 37 (citations omitted).

       No one contended in Myers that a misdemeanor presence
rule was “violative of the Federal Constitution,”7 and we went


presence. As Judge Barry explains, that Fourth Amendment
inquiry turns on whether Officer Santos had probable cause to
believe that Laville was committing a crime. It is not the fact that
Laville was committing a misdemeanor in the officer’s presence
that validates this arrest. Rather, the totality of the circumstances,
including Officer Santos’ reasonable suspicion when he saw
Laville, establishes probable cause to arrest as required under the
Fourth Amendment. That analysis can not be governed by local
law.
       7
        It is, of course, true that an arrest which violates the Federal
Constitution is not a legal one notwithstanding its legality under
state law. In the portion of Ker v. California, 374 U.S. 23 (1963),

                                  20
on in Myers to hold as follows:

       Under Pennsylvania law, simple assault is a
       misdemeanor. As noted above, Pennsylvania law
       governs the validity of Myers’ arrest. The
       Pennsylvania legislature has specifically limited
       the authority of police officers to make warrantless
       arrests for misdemeanor offenses. An officer may
       conduct a warrantless arrest for a misdemeanor
       only if the offense is committed in the presence of
       the arresting officer or when specifically
       authorized by statute. Officer Azzarano arrested
       Myers without a warrant. Therefore, Azzarano’s
       arrest for simple assault is not authorized under
       Pennsylvania law unless the record establishes that
       a simple assault occurred in his presence.

Myers, 308 F.3d at 256 (citations omitted).

        Applying this law to the facts of Myers, we reversed the
district court and held that it must grant the motion to suppress
because the officer had no reasonable ground to believe that a
simple assault was occurring in his presence. In our concluding
paragraph on this issue, we summarized our holding as follows:

               Based upon our review of this record we
       conclude that a finding that an assault was
       “ongoing” in the officer’s presence is clearly
       erroneous. We therefore hold that the government
       failed to satisfy its burden of establishing that the



referenced by the Court, for example, the plurality opinion
“examine[d] [an] arrest to determine whether, notwithstanding its
legality under state law, the method of entering the home may
offend federal constitutional standards of reasonableness and
therefore vitiate the legality of an accompanying search.” Id. at 38.
Applying the misdemeanor presence rule to determine the validity
of a Virgin Islands arrest, however, does not infringe on any right
created by the Fourth Amendment.

                                21
       police had probable cause to arrest Myers for
       simple assault.

Id. at 261.

       Essential to this holding was a conclusion that the
government could not rely upon information supplied by a third
party shortly before the arrest:

       Azzarano testified that he was suspicious because
       hiding behind a door at the approach of a police
       officer is inconsistent with a “simple argument.”
       Azzarano explained that he pointed his gun at the
       door Myers was hiding behind “because I believed
       he had a gun in his possession based upon the fact
       that the little girl had said so.” Id. at 71a
       (emphasis added). He did not base his conclusion
       that Myers was armed on anything he heard or saw
       after he entered the residence.

Id. at 261.

        Here, as in Myers, local law provides that a warrantless
arrest for a misdemeanor is valid only if the misdemeanor
occurred in the presence of the arresting officer. Here, as in
Myers, the government is not entitled to rely on information
supplied to the arresting officer by a third party. This is the
prevailing misdemeanor presence rule. See 2 Wayne R. LaFave,
et al., Criminal Procedure §3.5. If we apply Myers to the facts
of our case, I believe the challenged evidence must be
suppressed. Based on his own observation, Officer Santos had
no reasonable ground for believing that Laville was an alien,
much less an illegal one.8

        This is not to say that, in the absence of Myers, I would
find its holding to be the current law of the land. I conclude


       8
       Whether and when Laville effected an “entry” is,
accordingly, not of controlling significance.

                                22
only that I do not regard myself free in this case to depart from
what I understand to be the holding in Myers.

       My reading of Myers is not the only reason for my
dissent, however. Even in the absence of an applicable
misdemeanor presence rule, I would reach the same conclusion.
In my view, the totality of the circumstances within the arresting
officer’s knowledge was not sufficient to warrant a person of
reasonable caution to conclude that Laville had committed or
was committing an offense.

         As the law regarding information from informants
illustrates, even in the absence of a misdemeanor presence rule,
an officer of reasonable caution does not rely upon the
unsupported belief of someone else who does not appear to have,
and does not purport to have, a reasonable basis for his belief.
See Illinois v. Gates, 462 U.S. 213, 230 (1983) (whether
information supplied by an informant supports probable cause
depends on informant’s veracity, reliability, and basis of
knowledge, among other considerations); 2 Wayne R. LaFave,
Search & Seizure § 3.4 (noting that although Gates dealt with
information obtained from informants who are part of the
“criminal milieu,” it is “likewise appropriate to give separate
consideration to the matters of veracity and basis of knowledge .
. . [i]n cases where the police have acted or seek authorization to
act primarily upon information from the victim of or a witness to
a crime”). This is relevant here because one cannot determine
whether someone is an alien or a non-alien by simply looking at
him. Nor can one determine whether someone is an illegal alien
or a legal alien by simply looking at him. Mark Sperber thus not
only did not purport to have, but also did not appear to have, a
reliable basis for believing that Laville was anything other than a
citizen or a non-citizen with a right to be present in the United
States.

       When Officer Santos stood with Mark Sperber on the
Christiansted wharf, he had reliable information that a sailing
vessel had run aground and that some on board had come on
shore. I am willing to assume for present purposes that Santos
also had reliable information that Laville had come ashore from

                                23
that vessel. But that was the sum total of the relevant, reliable
information Santos possessed when Laville was pointed out to
him. Santos did not question Laville prior to his arrest, and,
while Sperber did assert to Santos that Laville was an “illegal,”
Santos had no basis for believing this was trustworthy
information.9 Sperber did not purport to have spoken with
Laville, and there was no apparent way Sperber could have
learned that Laville was an alien, much less an illegal alien.
Indeed, the government conceded as much when questioned by
the District Court. It conceded that, even if Santos had obtained
reliable information that Laville was from Dominica, he would
not have had probable cause to believe he was in violation of the
immigration laws:

             THE COURT: Would you concede that
       knowledge that someone is from Cuba or
       Dominica does not in and of itself give rise to
       probable cause that someone is in violation of
       immigration laws? Would you concede that?

              MR. ANDREWS: I would concede, Judge.

App. at 73-74.

      In summary, all that Santos reliably knew when Laville
was pointed out to him was that Laville was a person who had
come ashore from a vessel in distress and that clearly did not
provide him with probable cause to believe that Laville had
committed or was committing a crime.



       9
         Contrary to the Court’s suggestion, Sperber’s tip was not
corroborated by the Cubans. The Cubans did not tell Santos that
“other illegal aliens were in the vicinity,” see Maj. Op. at 14. In
fact, the Cubans never advised Santos that they themselves were
illegal aliens; they simply told Santos that they were from Cuba and
had come ashore from the boat. See App. at 38-39. Santos could
not infer from this simple admission that the Cubans were illegal
aliens, as the government frankly conceded to the District Court.
See text, infra.

                                24
       The only additional fact Santos knew at the time of
Laville’s arrest was that Laville had attempted to avoid contact
with law enforcement officers. I find this conduct too
ambiguous in this context to provide a basis for more than
speculation.

        I would suppress the statement given to the ICE as well as
the statement given to the Virgin Islands police as “fruit of the
poison tree.”

      Accordingly, I would affirm the ruling from which the
government appeals.




                               25
