United States v. Lewis

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 11-1136
_____________

UNITED STATES OF AMERICA

v.

AHMOI LEWIS,
Appellant
______________

APPEAL FROM THE DISTRICT COURT OF THE VIRGIN
ISLANDS
(D.C. Criminal No. 3:10-cr-00022)
Chief Judge: Honorable Curtis V. Gómez
______________

Argued December 8, 2011
______________

Before: FISHER, GREENAWAY, JR., and ROTH, Circuit
Judges.

(Opinion Filed: February 22, 2012)
George H. Hodge, Jr., Esq. (argued)
P.O. Box 803
St. Thomas, VI 00804
Counsel for Appellant Ahmoi Lewis

Nelson L. Jones, Esq. (argued)
Office of the United States Attorney, District of the Virgin
Islands
5500 Veteran’s Drive, Suite 260
St. Thomas, VI 00802
Counsel for Appellee United States of America

______________

OPINION
______________

GREENAWAY, JR., Circuit Judge.

After receiving a tip from a reliable source that
individuals in a white Toyota Camry were carrying firearms,
police officers in St. Thomas, Virgin Islands initiated a traffic
stop of the vehicle. During the traffic stop, a firearm was
discovered on the driver, Appellant Ahmoi Lewis (―Lewis‖).
Before pleading guilty to two firearm offenses, Lewis
unsuccessfully moved to suppress the firearm as the fruit of
an unlawful search and seizure. We must determine whether
the traffic stop was supported by the requisite reasonable
suspicion of criminal activity under the Fourth Amendment
based on either: (1) the illegal tints on the vehicle’s windows;
or (2) the tip that firearms were in the possession of the
individuals in the vehicle. We hold that neither basis
establishes the reasonable suspicion necessary for the traffic

2
stop. Hence, the firearm discovered on Lewis should have
been suppressed. We will vacate Lewis’s judgment of
conviction and sentence, reverse the denial of his motion to
suppress, and remand for further proceedings.

I. BACKGROUND

On July 28, 2010, the District Court held a pretrial
hearing on Lewis’s motion to suppress. The first law
enforcement officer to testify at the suppression hearing was
Officer Evans Jackson (―Jackson‖), a peace officer employed
in the enforcement section of the Virgin Islands Department
of Planning and Natural Resources. Jackson testified that on
April 9, 2010, he received a phone call from a reliable source
stating that there were firearms in a white Toyota Camry,
with the number ―181‖ in the license plate, located in the
vicinity of the Gottlieb gas station. Jackson had known the
source for approximately two years at the time and testified
that he had received reliable information from the source in
the past.1 The phone call was brief, lasting approximately
one minute. Jackson did not inquire about how the source
1
Jackson’s testimony about having received reliable
information from the source in the past was contradictory.
Jackson testified that the first time he received a credible tip
from the source was approximately two weeks prior to the tip
he received on April 9, 2010. (App. 43.) However, Jackson
also testified that this first credible tip was received around
―late April, early June‖ in 2010 (App. 33), even though
information provided at that time would have post-dated the
tip received in this case. The District Court concluded that
Jackson’s source was reliable. (App. 102-03.) Because the
reliability of the tip is not integral to our decision, we will not
address the District Court’s factual determination.

3
learned of the information in the tip. More importantly, the
source provided no details about the legal status of the
firearms.

Jackson was traveling on foot at the time that he
received the tip, without his patrol vehicle. He determined
that he could not investigate the tip himself. Jackson called
his partner, Officer Gerald Mercer (―Mercer‖), and asked to
be picked up. Mercer was off-duty at the time, and Jackson
instead asked Mercer whether any other officer was nearby.
Mercer replied that Officer Kendelth Wharton (―Wharton‖)
was next to him. Jackson spoke to Wharton and relayed the
tip that he had received about the white Toyota Camry.
Jackson had no further involvement in the traffic stop.

The only testimony at the suppression hearing
specifically related to the traffic stop came from Officer Jose
Mendez (―Mendez‖), an officer with the Virgin Islands Police
Department. Mendez testified that he responded to a request
for assistance from Wharton over the police radio system in
the area of the Ulla Muller Elementary School. Mendez was
the second officer to arrive on scene. Upon Mendez’s arrival,
Wharton had already initiated the traffic stop of Lewis’s
vehicle.2 Wharton was positioned by the driver’s side of the
2
Although subpoenaed by the Government to testify at
the suppression hearing, Wharton did not appear, prompting
the Government to request a bench warrant for his arrest.
Questioning whether Wharton had ever received the subpoena
in accordance with police protocol, the District Court
reasoned that a bench warrant should not be issued. Counsel
for Lewis argued that, as the police officer that initiated the
traffic stop, Wharton’s testimony was critical and moved to
stay the hearing. The District Court declined to do so. The

4
vehicle, and Mendez positioned himself by the passenger’s
side. Mendez observed that the vehicle was heavily tinted,
preventing both him and Wharton from seeing how many
occupants were inside.

Although the testimony was unclear as to how many
occupants were inside the vehicle, Lewis was the driver and
Jesus Grant (―Grant‖), Lewis’s co-defendant, was in the front
passenger’s seat. Lewis and Grant were ordered out of the
vehicle individually. Based on their respective positions on
the street, Wharton handled Lewis when he exited the vehicle,
while Mendez handled Grant. When Mendez asked Grant if
he had any weapons on him, Grant became argumentative, a
struggle ensued, and Mendez eventually placed Grant in
handcuffs. Upon frisking him for weapons, Mendez
discovered a hard object in Grant’s waist area. Mendez
searched further and discovered a firearm on Grant, at which
point Mendez placed Grant under arrest. Mendez had no
knowledge of Wharton’s interaction with Lewis but noted
that Lewis also was placed under arrest.

On cross-examination, Lewis’s counsel questioned
Mendez about whether Wharton provided any information
about why he initiated the traffic stop of the vehicle:

Q. [W]hat did you hear on the
911 call that indicated

District Court determined that because the Government bore
the burden of persuasion on Lewis’s motion to suppress,
Wharton’s failure to appear only inured to the Government’s
detriment. Wharton’s testimony would have been undeniably
essential given the focus of our inquiry on the legality of the
traffic stop.

5
 [Wharton] needed
assistance for a traffic
stop?

A. Well, to my understanding,
I don’t know what was his
reasons to make that stop.
All I responded was [a]
request of a fellow officer,
he needed assistance in
making a stop. . . .

Q. The point is that you don’t
know whether he was
making a traffic stop
because he was planning to
stop a vehicle in the traffic,
or whether there was a
traffic violation. Is that
correct?

A. That’s correct.

(App. 64-65.)

Officer Terrance Celestine (―Celestine‖), an officer in
the Traffic Bureau of the Virgin Islands Police Department,
testified about what happened to the vehicle following the
arrest. Celestine testified that he received a phone call from
Wharton on April 9, 2010, requesting his assistance in
determining whether the tints on a vehicle involved in a

6
traffic stop were in violation of Virgin Islands law.3 Wharton
informed Celestine that the vehicle was located under the
sally port at the Virgin Islands Police Department. On April
10, 2010, the day after the traffic stop, Celestine inspected the
vehicle’s tints. Based on his initial inspection, the tint on the
vehicle surpassed the AS1 line—a demarcation on a
windshield that serves as a boundary rendering illegal any
obstruction crossing below the line. Using a tint meter,
Celestine discovered that the tints far exceeded the 35%
threshold permissible under Virgin Islands law.4 Celestine
issued a citation that day for illegal tints.

After the three officers testified, the District Court
heard argument on the motions. The Government asserted
that the totality of the circumstances—the tip Jackson
received from the reliable source and the tints that Celestine
discovered on the vehicle—rendered the traffic stop
constitutionally valid. Lewis’s counsel, on the other hand,
argued that suppression of the firearm was warranted because
Jackson’s source was unreliable and the tip failed to provide
any information that would lead officers to believe that Lewis
illegally possessed the firearm.

3
Celestine was certified to examine the legality of a
vehicle’s tints.
4
The numerical percentage of a tint is directly
proportional to the amount of light that can pass through the
window. As the percentage of a tint decreases, less light can
pass through the window, rendering both the window and the
inside of the vehicle darker to an outside observer. (App. 48-
49.)

7
 In a ruling from the bench, the District Court
concluded that suppression of the firearm recovered from
Lewis was not warranted. The District Court first addressed
whether the tip that Jackson received provided the requisite
level of reasonable suspicion to conduct the traffic stop:

[T]he Court . . . agrees with the
defense that the tip certainly
cannot be the basis for the stop,
because the fact that someone has
a firearm is not a basis for a stop,
in and of itself. And I believe
there’s case law in our circuit that
makes that very clear, because the
ownership of a firearm is not
illegal in the Virgin Islands. You
simply have to have a license, of
course, to possess one. But
someone saying that someone has
a firearm doesn’t mean that you
can just stop them. So a stop
based on the tip certainly would
present problems for the
government.

(App. 103.)

The District Court then determined that the illegal tints
provided the necessary justification for the traffic stop:

But that’s not all that’s attendant
here. In fact, what we have here
is a – the tip information was that
there were some firearms, there

8
 was a description of the vehicle,
there was a description, I believe,
identification of the specific
license plate number for that
vehicle. But there’s more. And
this is, I think, what presents a
problem for the defense. The
vehicle that was described was
heavily tinted. The testimony
during this hearing revealed that.
And the Court is aware that it is a
violation of the law to have tint in
excess of a certain amount. So
while there’s been some concern
about the motivation for the stop,
again, that’s not dispositive here.
Once there is a valid reason for
the stop – here, a tint that exceeds
the limit . . . . even if it’s
pretextual, even if there is some
motive that is questioned by the
defense, there is certainly a valid
reason for the stop: a violation of
the tint requirements.

(App. 103-04.) The District Court went on to reason that,
once the traffic stop was initiated, the resulting discovery of
the firearm on Lewis was lawful.

On October 5, 2010, Lewis conditionally pled guilty to
two of the eleven counts in the charging information: Count
Three (possession of a stolen firearm) and Count Six
(unauthorized possession of a firearm). The District Court
sentenced Lewis on January 13, 2011 to a term of fourteen

9
months of imprisonment on Count Three, a concurrent term
of fourteen months on Count Six, and three years of
supervised release.

On January 14, 2011, Lewis filed a timely appeal from
the judgment of conviction, challenging the District Court’s
denial of his motion to suppress.5

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction under 28 U.S.C. § 1291 to review
the District Court’s judgment of conviction. We review a
district court’s order denying a motion to suppress under a
mixed standard of review. United States v. Tracey, 597 F.3d
140, 146 (3d Cir. 2010). We review findings of fact for clear
error, but we exercise plenary review over legal
determinations. Id.

III. ANALYSIS

The Fourth Amendment protects the public from
―unreasonable searches and seizures.‖ U.S. Const. amend.
IV. ―Generally, for a seizure to be reasonable under the
Fourth Amendment, it must be effectuated with a warrant
based on probable cause.‖ United States v. Robertson, 305
F.3d 164, 167 (3d Cir. 2002) (citation omitted). A well-
established exception to the Fourth Amendment’s warrant
requirement permits an officer to ―conduct a brief,
investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot.‖ Illinois

5
Grant also pled guilty to certain offenses but filed no
appeal.

10
v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry v. Ohio,
392 U.S. 1, 30 (1968)).

The requirement of reasonable suspicion for a Terry
stop-and-frisk applies with equal force to a traffic stop of a
vehicle. United States v. Delfin-Colina, 464 F.3d 392, 397
(3d Cir. 2006). When determining whether an officer
possessed reasonable suspicion to conduct a traffic stop, we
must consider the totality of the circumstances. United States
v. Silveus, 542 F.3d 993, 1000 (3d Cir. 2008). Once a valid
traffic stop is initiated, ―an officer who develops a reasonable,
articulable suspicion of criminal activity may expand the
scope of an inquiry beyond the reason for the stop and detain
the vehicle and its occupants for further investigation.‖
United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003)
(citation omitted). Where reasonable suspicion for the traffic
stop is lacking, the evidentiary fruits of the traffic stop must
be suppressed. United States v. Johnson, 592 F.3d 442, 447
(3d Cir. 2010).

Here, we must determine whether Wharton possessed
the requisite reasonable suspicion to initiate the traffic stop of
the vehicle.

A. Illegal Tints on the Vehicle

The District Court concluded that the excessive tints
provided a legal justification for the traffic stop, regardless of
whether Wharton was motivated by the desire to investigate
the tip about the firearms. We have noted that ―the Supreme
Court established a bright-line rule that any technical
violation of a traffic code legitimizes a stop, even if the stop
is merely pretext for an investigation of some other crime.‖

11
United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006)
(citing Whren v. United States, 517 U.S. 806 (1996)).

While case law continues to afford police officers
increasing latitude to initiate traffic stops that pass
constitutional muster, see id., our obligation to scrutinize
police action is no less demanding. We agree with the
District Court’s determination that pretextual traffic stops
supported by reasonable suspicion do not run afoul of the
Fourth Amendment. That proposition is not in dispute. But
we cannot lend our imprimatur to the District Court’s
erroneous conclusion that the illegal tints provided the
necessary pretext in this case. Needless to say, a pretextual
traffic stop requires the officer to have observed a traffic
violation prior to initiating the traffic stop. Otherwise, the
officer’s motivation for the stop could not be pretextual. The
corollary of this fundamental principle is that ex post facto
justifications are impermissible.

After receiving testimony at the suppression hearing,
the District Court reasoned that the tints provided a legal
justification for the traffic stop. This determination was
unsupported by the factual record. Based on our review of
the testimony, the only logical conclusion is that the tints
were a contrived, after-the-fact explanation for the traffic
stop. As such, the tints cannot justify the stop of Lewis’s
vehicle.

Jackson provided no testimony at all about the
vehicle’s tints. This is unsurprising given that his role was
limited to relaying the tip to Wharton that precipitated his
search for Lewis’s vehicle. Jackson never observed Lewis’s
vehicle and had no communication with Wharton about the
traffic stop. While Mendez participated in the traffic stop, his

12
first observation of the vehicle’s tints did not occur until after
he arrived on scene. By that point, Lewis’s vehicle had been
pulled over, and the occupants were on the cusp of being
ordered out of the vehicle. Moreover, Mendez testified on
cross-examination that he could not identify the reason for the
traffic stop and had not discussed the issue with Wharton.

Whatever testimony Celestine provided about his
inspection of the vehicle’s illegal tints is of no moment to our
determination. Celestine had no involvement in the actual
traffic stop. His testimony shed no light on why the traffic
stop occurred as it did. He had no knowledge of whether
Wharton observed a traffic violation prior to initiating the
stop of the vehicle. See Florida v. J.L., 529 U.S. 266, 271
(2000) (―The reasonableness of official suspicion must be
measured by what the officers knew before they conducted
their search.‖). Celestine’s only involvement in this case—
the inspection of the vehicle’s tints—occurred the day after
Lewis was arrested. This inspection is inconsequential to our
inquiry. The Government’s undue reliance on Celestine’s
testimony is insufficient to resuscitate the Government’s
doomed argument.

The absence of testimony that Wharton or any other
officer observed a traffic violation, prior to the initiation of
the traffic stop, precludes a finding that the stop was
pretextual. See Mosley, 454 F.3d at 251. The District Court
erred in concluding that the illegal tints provided a pretextual
justification for the traffic stop. We are left to conclude on
these facts that the vehicle was stopped because of the tip
about the firearms.

13
 B. Tip Regarding the Firearms

We can nevertheless affirm the District Court’s denial
of Lewis’s motion to suppress if the tip that Jackson received
about the firearms in the white Toyota Camry itself provided
reasonable suspicion for the traffic stop.

In United States v. Ubiles, 224 F.3d 213 (3d Cir.
2000), we analyzed whether reasonable suspicion existed to
support a Terry stop in the Virgin Islands. There, individuals
in St. Thomas were celebrating a street carnival festival
during which alcohol consumption was widespread. Id. at
215. An anonymous informant approached several officers
and informed them that a young man (the defendant) standing
in the crowd of celebrants had a firearm in his possession. Id.
The informant described the defendant’s clothing and
appearance but did not state that the defendant was acting in a
suspicious manner or that the firearm was unlawfully
possessed. Id. After the informant pointed in the direction of
the defendant, officers walked over to the young man. Id.
Although the defendant exhibited no suspicious behavior,
officers proceeded to conduct a pat-down search and
discovered an unregistered firearm with an obliterated serial
number. Id.

At a hearing on the defendant’s motion to suppress the
firearm, officers testified that they based their decision to stop
and frisk the defendant solely on the anonymous informant’s
tip. Id. The district court denied the defendant’s motion to
suppress the firearm. Id. We held that the search and seizure
of the defendant was unlawful and vacated the conviction. Id.
at 214. We premised our decision on two considerations:

14
 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 [the defendant]
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.

Id. We analogized the tip provided by the informant about
the firearm to a tip that the defendant ―possessed a wallet, a
perfectly legal act in the Virgin Islands, and the authorities
had stopped him for this reason.‖ Id. at 218. ―For all the
officers knew, even assuming the reliability of the tip that [the
defendant] possessed a gun, [the defendant] was another
celebrant lawfully exercising his right under Virgin Islands
law to possess a gun in public.‖ Id. Absent additional
information, ―a mere allegation that a suspect possesses a
firearm, as dangerous as firearms may be, [does not] justify
an officer in stopping a suspect absent the reasonable
suspicion required by Terry.‖ Id. at 217.

Less than three months after our decision in Ubiles, we
clarified that ―reasonable suspicion does not require that the
suspect’s acts must always be themselves criminal.‖ United
States v. Valentine, 232 F.3d 350, 356 (3d Cir. 2000) (noting
that the ―Supreme Court has found reasonable suspicion
based on acts capable of innocent explanation‖). In
Valentine, the totality of the circumstances—an in-person tip

15
that the defendant was carrying a firearm, received in a high-
crime area of Irvington, New Jersey at 1:00 a.m., where the
defendant and his companions walked away upon observing a
police car—provided officers with reasonable suspicion to
conduct a Terry stop.6 Id. at 357. We have since concluded
on several occasions that a totality of the circumstances
inquiry rendered a Terry stop lawful. See, e.g., United States
v. Torres, 534 F.3d 207, 213 (3d Cir. 2008) (concluding that
tip provided by anonymous informant that man brandished
firearm at gas station in Philadelphia, Pennsylvania was
reliable to justify traffic stop).

For cases arising out of the Virgin Islands, however,
the treatment afforded firearms under territorial law continues
to be of paramount importance in our analysis. In United
States v. Gatlin, 613 F.3d 374 (3d Cir. 2010), an officer
received a tip from a reliable source that a man was walking
on a street in Wilmington, Delaware with a firearm in his
jacket. Id. at 376-77. Based on the man’s description,
officers responded to the area where the informant indicated
that the man could be found. Id. at 377. Officers located the
man, handcuffed him, and patted him down, finding an
unlicensed handgun in violation of Delaware law. Id.

We noted that the facts in Gatlin resembled those in
Ubiles—i.e., the sole evidence to support the Terry stop was a
tip about a firearm—but nonetheless concluded that
reasonable suspicion existed to frisk the defendant for
6
Given the totality of the circumstances regarding the
tip, we declined to address the Government’s alternative
argument that New Jersey, unlike the Virgin Islands,
presumes that an individual lacks a permit to carry a
concealed firearm. Id. at 357.

16
weapons. Id. at 378-79. Critical to our analysis was the
presumption under Delaware law, unlike in the Virgin
Islands, that an individual has no license to carry a concealed
firearm. Id. The reliable tip coupled with the presumption of
illegality provided officers with reasonable suspicion to
conduct an investigatory stop within the confines of Terry.
Id. at 379.

The District Court concluded that the tip Jackson
received, which he relayed to Wharton, was insufficient to
justify the traffic stop. We agree. It is lawful for certain
individuals in the Virgin Islands to carry a firearm provided
that a license is obtained. See V.I. Code Ann. tit. 23, § 454.
Ubiles recognized that the possession of a firearm in the
Virgin Islands, in and of itself, does not provide officers with
reasonable suspicion to conduct a Terry stop. 224 F.3d at 217
(―[A] mere allegation that a suspect possesses a firearm, as
dangerous as firearms may be, [does not] justify an officer in
stopping a suspect absent the reasonable suspicion.‖). Indeed,
Virgin Islands law contains no presumption that an individual
lacks a permit to carry a firearm. Gatlin, 613 F.3d at 378-79.
As we observed in Gatlin, the Government bears the burden
of proof in the Virgin Islands that the defendant had no
license for a recovered firearm. Id. at 379 (citing United
States v. McKie, 112 F.3d 626, 630 (3d Cir. 1997)).

Our conclusion here that the tip was insufficient to
justify the traffic stop of Lewis’s vehicle flows logically from
the reasoning in Ubiles. Jackson received a tip that
individuals in a white Toyota Camry, bearing the number
―181‖ in the license plate, had firearms in their possession.
Jackson testified that his conversation with his source was
brief and that no information was provided about the legality
of the firearms. This information alone does not permit an

17
officer to suspect—let alone reasonably suspect—that
possession of either firearm was illegal or that the firearms
were being used in a criminal manner.7 Jackson relayed the
tip about innocuous conduct to Wharton, who proceeded to
initiate a traffic stop of the vehicle. Absent any information
about the criminality of the firearms, the mere possession of
the firearms could not provide Wharton with reasonable
suspicion to stop the vehicle.8

The Government argues that the totality of the
circumstances—based on the tip and the illegal tints—
justified the traffic stop. (Appellee’s Br. at 7.) The
Government misapprehends the totality of the circumstances
standard. Facts known to an officer at the time of a Terry
stop must bear individual significance if they are to be
considered in the aggregate. See United States v. Mathurin,

7
This is true even assuming the reliability of the tip,
which contained no information about suspicious activity. Cf.
United States v. Johnson, 592 F.3d 442, 449 (3d Cir. 2010)
(finding anonymous informant’s tip reliable where informant
observed criminal activity in progress).
8
This is not to say that an officer must receive
information about or observe criminal behavior in progress to
constitute reasonable suspicion. To the contrary, as we noted,
―reasonable suspicion may be based on acts capable of
innocent explanation.‖ United States v. Whitfield, 634 F.3d
741, 744 (3d Cir. 2010) (internal quotation marks and citation
omitted). But, whereas here, the sole information provided
by the informant concerned the mere possession of firearms
in a vehicle in the Virgin Islands, without more, there are no
facts upon which to predicate reasonable suspicion.

18
561 F.3d 170, 174-75 (3d Cir. 2009) (―We will examine the
factors separately to address their individual significance, and
then in the aggregate to assess the agents’ reasonable
suspicion under our totality of the circumstances inquiry.‖).

As we explained in supra Part III.A., based on the
testimony at the suppression hearing, the illegal tints on the
vehicle were an impermissible ex post facto justification for
the traffic stop. The informant’s tip about the white Toyota
Camry is equally of no aid to the Government. We cannot
consider in the aggregate these two facts that individually
have no relevance to our totality of the circumstances
assessment.9

IV. CONCLUSION

Because neither the illegal tints nor the tip was
sufficient, the Government failed to meet its burden of
proving that the traffic stop was supported by reasonable
suspicion. See Delfin-Colina, 464 F.3d at 397. The District
Court erred by not ordering suppression of the firearm
discovered on Lewis. We will vacate Lewis’s judgment of
conviction and sentence, reverse the denial of his motion to
suppress, and remand for further proceedings consistent with
this opinion.

9
At oral argument, counsel for the Government
conceded that the tip was insufficient, stating that suppression
of the firearm discovered on Lewis would be required if the
tip remained the sole support for the traffic stop.

19