                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2005

Govt of VI v. Olinsky
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2052




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                           NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                                 No. 04-2052


              GOVERNMENT OF THE VIRGIN ISLANDS

                                     v.

                           JOHN T. OLINSKY,

                           Appellant


                   On Appeal from the District Court
                of the Virgin Islands, Appellate Division
                    (D.C. Crim. App. No. 2001-0110)
               Honorable Raymond L. Finch, Chief Judge
              Honorable Thomas K. Moore, District Judge
        Honorable Patricia D. Steele, Judge of the Territorial Court
              of the Virgin Islands (sitting by designation)


                        Argued December 16, 2004

    BEFORE: SLOVITER, FUENTES and GREENBERG, Circuit Judges

                       (Filed:     January 14, 2005)


                    Arturo R. Watlington, Jr. (argued)
                    #3B Store Gronne Gade
                    P.O. Box 261
                    Charlotte Amalie
                    St. Thomas, USVI 00804
                    Attorney for Appellant
                            Iver A. Stridiron
                            Attorney General
                            Elliott M. Davis
                            Solicitor General
                            Maureen Phelan (argued)
                            Assistant Attorney General
                            Office of Attorney General of the
                            Virgin Islands
                            Department of Justice
                            34-38 Kronprindsens Gade
                            GERS Building, 2nd Floor
                            Charlotte Amalie
                            St. Thomas, USVI 00802

                            Attorneys for Appellee


                               OPINION OF THE COURT


GREENBERG, Circuit Judge.

       John T. Olinsky appeals from an order of the District Court of the Virgin Islands,

Appellate Division, affirming his conviction under 14 V.I. Code Ann. § 2253(a) (Supp.

2004) for possession of a firearm without a license. Because we agree with the district

court’s reasoning and result, we will affirm.

       After a bench trial which dealt both with Fourth Amendment and substantive

issues, the territorial court issued a judgment and commitment dated November 20, 2000,

reflecting its finding convicting Olinsky. Olinsky appealed from this judgment to the

district court which affirmed, entering its order on March 30, 2004. Olinsky timely filed

a notice of appeal to this court. The district court had jurisdiction to review the judgment



                                                2
of the territorial court pursuant to 48 U.S.C. § 1613a(a) and we have jurisdiction under 48

U.S.C. § 1613a(c).

       On this appeal Olinsky challenges only the district court’s determination that the

territorial court correctly denied his motion to suppress the firearm the police collected at

the time of his arrest. Olinsky argues that the police obtained the firearm as the result of

an unreasonable search and seizure in violation of the Fourth Amendment. In reviewing a

denial of a motion to suppress, we accept the factual findings of the territorial court

unless they are clearly erroneous and we review the legal determinations of both the

territorial court and the district court de novo. See United States v. Fulani, 368 F.3d 351,

352 (3d Cir. 2004); Tyler v. Armstrong, 365 F.3d 204, 208 (3d Cir. 2004).

       The territorial court found that the police responded to an early morning 911 call

on May 27, 2000, from an identified caller who reported that there was a man with a gun

near a screen shop in a small shopping center on St. Thomas. The caller indicated that the

man was a white Caucasian male wearing colored pants or shorts and a T-shirt or top and

also stated, as found by the territorial court, that the police should be careful because the

man “had cranked the weapon or cocked the weapon.” Tr. at 317.1 The territorial court

found that the police responded to this call and arrived at the shopping center in the area

of the screen shop, where they noticed that the door to the shop was ajar or opened. The

police then observed Olinsky in an alley. According to the territorial court’s findings

  1
   Because Olinsky did not number all of the pages of the appendix, “Tr.” refers to the
page numbers of the transcript of the bench trial.

                                              3
announced at the conclusion of the bench trial, the police “saw [Olinsky] take out from

the front of his waist, a gun. He pivoted after they told him to freeze, and he then placed

the firearm in the bed of a truck that he was standing next to.” Tr. at 318. Also, in its

oral decision denying the motion to suppress, the territorial court described that “when the

police told [Olinsky] to freeze, before doing so, [he took] a gun out of his waist area and

as the officers described, made a pivotal flirtive [sic] movement by taking the gun out of

the area in his front and placing it into the bed of a truck.” Tr. at 159. The police officers

then approached Olinsky and questioned him as to whether he had a license for the

firearm. After establishing that Olinsky did not have a license for the firearm, the officers

arrested him. Olinsky presented a different, more benign, version of these facts to the

territorial court, but the court explicitly rejected Olinsky’s testimony, finding him not

credible. In any event, Olinsky does not claim that he had a gun license so that any

dispute of facts does not implicate the fundamental question in this case, i.e, did Olinsky

possess an unlicensed gun?

       On appeal, Olinsky does not make a substantial argument that we should determine

that the territorial court’s factual findings were clearly erroneous and, as we see no reason

to disturb them, we accept them. Olinsky does argue, however, that the territorial court

should have suppressed the use of the firearm as evidence because the police obtained it

as a result of an unreasonable search and seizure. In this regard he contends that the

Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), and our



                                              4
decision in United States v. Ubiles, 224 F.3d 213 (3d Cir. 2000), govern his case. On his

initial appeal the district court rejected this argument, concluding that Terry and Ubiles do

not apply and that the Supreme Court’s opinion in California v. Hodari D., 499 U.S. 621,

111 S.Ct. 1547 (1991), is controlling.

       We agree with the district court that the Supreme Court’s decision in Hodari D. is

controlling. In Hodari D. police officers on patrol sparked the flight of several youths

with their approach. During the officers’ pursuit of one of the youths, he tossed away an

object that police later identified as crack cocaine. The youth moved to suppress the

crack cocaine as the fruit of an illegal seizure. Id. at 622-23, 111 S.Ct. at 1549. The

Supreme Court held that there is not a seizure for Fourth Amendment purposes if a

subject does not yield to a show of police authority. Id. at 626, 111 S.Ct. at 1550. In

Hodari D. the Court concluded that the fleeing subject abandoned the material before he

submitted to the show of authority and that in those circumstances the police did not

recover it as the fruit of a seizure implicating the Fourth Amendment. Id. at 629, 111

S.Ct. at 1552.

       In this case under the facts the territorial court found, the district court correctly

concluded that Olinsky abandoned the firearm before he submitted to the police officers’

show of authority. The territorial court found that Olinsky “pivoted after [the police] told

him to freeze, and he then placed the firearm in the bed of a truck.” Tr. at 318. While

Olinsky’s flight was less dramatic than that of the subject in Hodari D., his own act



                                               5
produced the firearm and that act was in direct disregard of the police order to “freeze.”

Thus, at the time that the firearm came into the officers’ plain view, there had not been a

seizure and the Fourth Amendment had not been implicated. In these circumstances, a

Fourth Amendment reasonable suspicion analysis pursuant to Terry and Ubiles is not

applicable.2

       Therefore, we will affirm the order of the district court entered March 30, 2004,

affirming the judgment of the territorial court convicting Olinsky.




  2
   We note that even if a Fourth Amendment reasonable suspicion analysis applied here,
given the totality of the circumstances, we would conclude that this case is
distinguishable from Ubiles and that the police had reasonable suspicion to stop Olinsky.

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