                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                  No. 09-4601
                                 _____________

                          UNITED STATES OF AMERICA


                                        v.

                              FEVRIER ANDREW,
                                            Appellant



              On Appeal from the District Court of the Virgin Islands
                      District Court No. 3-09-cr-00025-001
                 District Judge: The Honorable Curtis V. Gómez


                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              December 14, 2010

        Before: McKEE, Chief Judge, FUENTES and SMITH, Circuit Judges

                             (Filed: March 15, 2011 )


                                 _____________

                                   OPINION
                                 _____________



FUENTES, Circuit Judge.
         Appellant Fevrier Andrew was charged with unlawful possession of a firearm by a

prohibited person, in violation of 18 U.S.C. § 922(g)(5)(A) and 924(a)(2) (Count One)

and unauthorized possession of a firearm, in violation of V.I. Code Ann. Tit. 14 § 2253(a)

(Count Two). Andrew filed a motion to suppress, which the District Court denied

following an evidentiary hearing. Thereafter, Andrew entered a conditional plea of

guilty to Count One of the indictment pursuant to Federal Rule of Criminal Procedure

11(a)(2), preserving his right to appeal the denial of his motion to suppress. Andrew was

sentenced to a 12-month term of imprisonment, three years of supervised release, and a

special assessment amounting to $100. He appeals his conviction on Fourth Amendment

grounds. For the reasons below, we will affirm.1

                                               I.

         Because we write for the parties, we discuss only the facts relevant to our

conclusion. Andrew was arrested during a law enforcement operation aimed at

discovering persons illegally entering the United States (“Operation Virgin Sands 4”).

The purpose of the operation was to establish check points and inspect the immigration

status of passengers arriving on common carriers at the Red Hook ferry terminal located

in St. Thomas, an area that is often used as an entry point by aliens arriving on ferries

from St. John hoping to avoid inspection by immigration authorities. On January 24,

2009, Officer Brin and Supervisor Grimes of the U.S. Customs and Border Protection

(“CBP”) were charged with patrolling the areas east and west of the ferry terminal. This


1
    We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                               2
area includes a “one lane dirt road, less than a quarter mile long, going around the

perimeter of [a] lagoon” that CBP knows is routinely used by passengers who exit the

ferries along the shore and meet cars driven along the dirt road. App. 36. Around 6:45

a.m. on January 24th, Brin and Grimes came across a blue Honda parked at the end of the

dirt road, approximately fifty feet from the water. The officers, who were patrolling in a

marked car, parked approximately twenty feet away from the Honda. Brin, who was

wearing a uniform, observed Fevrier Andrew sitting in the blue vehicle. As Brin exited

his car and approached the passenger‟s side of the car, he noted that Andrew “turned to

[him] with a . . . little bit of a surprised look on his face.” App. 40. The officer observed

that Andrew appeared to be wet, was wearing only his underwear, and had his dry pants

beside him.

       Brin identified himself as a CBP officer and asked Andrew “How‟s it going” or

“How are you doing today?” App. 41. Andrew responded that he was “okay.” App. 42.

Brin then asked Andrew what he was doing, and Andrew responded that he had heard

that there was a stolen car in the area and had come to look around, since he had never

been there before. Brin observed that Andrew had “an island accent” and “sounded like

[he was] from Dominica, generally.” App. 42. He then “decided to further ask [Andrew]

about his status in the [United States].” App. 42. Brin testified that Andrew “jumped”

and responded that he had been in the United States for 19 years. App. 43. Next, Brin

asked Andrew for his name and date of birth and whether he had any documents

permitting him to be in the United States. Andrew responded that he did not have those

documents with him. Brin then explained to Andrew that he was going to verify his

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immigration status in a computer database. The officer returned to his car and searched

the database using Andrew‟s name and date of birth. The result of the search was

negative, meaning that Brin found no information confirming that Andrew was legally

present in the United States. Brin then called for assistance in order to conduct additional

database inquiries. Sometime during this period, Andrew gave Supervisor Grimes his car

registration and Virgin Islands driver‟s license. Using that information, Brin conducted

another search of the same database, but again, the result was negative.

       Thereafter, two other officers from CBP arrived, including Supervisor Neftali

Acevedo. Neftali approached Andrew, who was still sitting in his vehicle, and identified

himself as a Border Patrol officer. When he asked Andrew about his immigration status,

Andrew responded that he was a citizen of Dominica and a lawful permanent resident in

the United States. Acevedo returned to his car and ran Andrew‟s information through the

central database to check whether Andrew was in fact a lawfully admitted permanent

resident. Again, no records turned up. When Acevedo informed Andrew of the result,

Andrew admitted that he was not legally present in the United States and that he was

from Dominica. Acevedo asked Andrew to put his pants on and exit the vehicle. As

Andrew was stepping out of the vehicle, Acevedo noticed a small transparent plastic

“baggie” containing a leafy green substance located under the radio in front of the gear

shift. After getting out of the car, Andrew was handcuffed and placed in Officer Brin‟s

car, located twenty feet away.

       Based on his observation of the leafy green substance, Acevedo requested a canine

unit to conduct a search of the car. The canine unit arrived approximately five minutes

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later. While examining the car, the dog was alerted to the presence of contraband. As a

result, three of the officers conducted a search of the car. They then discovered a firearm,

a ten-round magazine, a small knife, and a bullet under the driver‟s side floor mat.

       At the suppression hearing held in the District Court, the court concluded that,

under the totality of the circumstances, “there was certainly some articulable suspicion

that led to the officers‟ inquiry in the first instance. That inquiry gave rise to probable

cause for the defendant‟s subsequent arrest, and the search that was incident to the arrest

was appropriate under the circumstances.” App. 89.

                                              II.

       On appeal Andrew argues that (1) the officers lacked reasonable suspicion to

conduct an investigative stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968) and (2) the

search of his car was an unlawful search incident to arrest under Arizona v. Gant, 129

S.Ct. 1710 (2009). We review the District Court‟s denial of a motion to suppress for

clear error as to the underlying factual findings and exercise plenary review of the

District Court‟s application of the law to those facts. United States v. Perez, 280 F.3d

318, 336 (3d Cir. 2002). We may affirm on any ground supported by the record. United

States v. Veal, 453 F.3d 164, 167 (3d Cir. 2006).

       Under Terry, an officer may conduct “a brief, investigatory stop” of an individual

“when the officer has a reasonable, articulable suspicion that criminal activity is afoot.”

Illinois v. Wardlow, 528 U.S. 119, 123 (2000). The analysis is two-fold. First, “[w]e

begin by determining when the seizure of [Andrew] occurred, as that is the moment the

Fourth Amendment becomes relevant.” United States v. Brown, 448 F.3d 239, 245 (3d

                                               5
Cir. 2006). Next, “we evaluate the presence or absence of reasonable suspicion.” Id.

“Reasonable suspicion . . . demands that the detaining officers . . . have a particularized

and objective basis for suspecting the particular person stopped of criminal activity.” Id.

at 246 (internal quotations and citations omitted). In determining whether there was

reasonable suspicion, we consider the totality of the circumstances, id., and what the

“officers knew before they conducted their search,” Florida v. J.L., 529 U.S. 266 (2000).

       Andrew submits that he was “seized” within the Fourth Amendment when Officer

Brin began questioning Andrew about his immigration status and requested his

immigration documents. We agree. We next consider whether, under the totality of the

circumstances, Officer Brin had a “particularized and objective basis” for believing that

Andrew was involved in criminal activity. We agree with the District Court that the CBP

officers had “articulable suspicion” to detain Andrew. Andrew was discovered in an area

known to be used by persons arriving from St. John wishing to avoid immigration

inspection. Brin, who has worked for the CBP since 2002 and participated in a number

of immigration operations, testified that the specific dirt road where Andrew was

discovered was used by persons “trying to get away from our [Virgin Sands] operation.”

App. 36. He explained that persons attempting to enter the island illegally “get off the

barge and turn right along the rocky shoreline[, and then] run along the front of the

shoreline and turn up around the lagoon, onto that dirt road.” App. 36. Brin also testified

that in “just about every operation” persons arriving illegally at the ferry dock “had a car

on the end of the dirt road.” App. 49. We give significant weight to Brin‟s observations

and experience. See, e.g., Brown, 448 F.3d at 247 (“[W]e must allow „officers to draw on

                                              6
their own experience and specialized training to make inferences from and deductions

about the cumulative information available to them that might well elude an untrained

person.‟”) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). While Brin also

testified that in the past he had only observed multiple persons working “in little groups”

and “carpool[ing] together”, that testimony does not undercut the possibility that Andrew

was participating in a scheme intended to avoid immigration check points. App. 49.

       Several other factors collectively serve together to create reasonable suspicion.

First, Brin noted that Andrew “looked surprised” when approached by Brin, and

“immediately jumped” when asked about his immigration status in the United States.

App. 40, 43. Similar behavior can provide a basis for reasonable suspicion. See, e.g.,

Wardlow, 528 U.S. at 124. Second, when Brin asked Andrew what he was doing in the

area, Andrew responded that “he had heard that there was a stolen vehicle or car in that

area. And he had never been in that area before, so he came to take a look around.” App.

42. We find it significant, given the location of Andrew‟s vehicle, that his appearance

was inconsistent with his stated reason for being in the area. Finally, Brin, an

experienced immigration officer, testified that he recognized Andrew‟s accent as being an

“island” accent from “Dominica.” App. 42. Ultimately, although these factors present a

close call, considering the totality of the circumstances and Officer Brin‟s experience and

observations, we conclude they amount to reasonable suspicion.

       Andrew‟s second argument on appeal is that the search of his car was illegal under

Arizona v. Gant, 129 S.Ct. 1710 (2009). In Gant, the Supreme Court “narrowed the

scope of the search-incident-to-arrest doctrine.” United States v. Shakir, 616 F.3d 315,

                                             7
318 (3d Cir. 2010). Gant held that a search of a car incident to arrest is permitted only in

two situations: (1) when “it is reasonable to believe that evidence of the offense of arrest

might be found in the vehicle” or (2) “the arrestee is unsecured and within reaching

distance of the passenger compartment at the time of the search.” 129 S.Ct. at 1719.

Andrew argues that the search of his vehicle was unconstitutional under Gant because,

first, it was not reasonable to believe that evidence of an immigration violation might be

found in the vehicle and second, he posed no threat to the evidence or the officers, given

that he was handcuffed in the back of a marked car located twenty feet away from his car.

       However, Gant does not control in this case because the officers did not need to

rely on the search incident to arrest doctrine. Even after Gant, “[o]ther established

exceptions to the warrant requirement authorize a vehicle search under additional

circumstances when safety or evidentiary concerns demand.” Id. at 1721. The Gant

Court explicitly stated that “[i]f there is probable cause to believe a vehicle contains

evidence of criminal activity, [United States v. Ross, 456 U.S. 798, 820-21 (1982)],

authorizes a search of any area of the vehicle in which the evidence might be found.” Id.

In other words, the automobile exception to the warrant requirement, which “permits law

enforcement to seize and search an automobile without a warrant if probable cause exists

to believe it contains contraband,” United States v. Burton, 288 F.3d 91, 100 (3d Cir.

2002), has continued vitality and applies here.

       In this case, the search of Andrew‟s car is constitutional under the automobile

exception. As Andrew was exiting his car, one of the officers observed a plastic bag in

the car containing a leafy green substance. Upon viewing the plastic bag containing that

                                              8
substance, the officer had probable cause to search for marijuana. See United States v.

Williams, 413 F.3d 347, 353 (3d Cir. 2005). If there is probable cause that a vehicle

contains evidence of a crime, Ross continues to authorize “searches for evidence relevant

to offenses other than the offense of arrest and the scope of the search authorized is

broader.” Gant, 129 S.Ct. at 1721. Thus, the search of Andrew‟s vehicle was

constitutional.


                                   III. CONCLUSION

   The District Court properly denied Andrew‟s motion to suppress. Thus, his conviction

will be affirmed.




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