VI: Arrest for possession of firearm without knowing legality of possession was unreasonable

Defendant’s stop was justified, but merely possessing a gun was not probable cause to believe that those in the car were committing a crime. The arrest for the gun before determining whether it was lawfully or unlawfully possessed was unreasonable. People v. Matthew, 55 V.I. 380 (2011)*:

In conclusion, this Court holds, consistent with the Third Circuit’s decision in U.S. v. Ubiles, and Title 23 Section 488 of the Virgin Islands Code, that the warrantless arrest of defendants—without probable cause that the weapons were unlawfully possessed or without any other evidence to support probable cause that other criminal activity was afoot—was unreasonable under the totality of the circumstances and that the weapons and ammunition and all other evidence uncovered subsequent to the unlawful arrest are hereby suppressed.

Defendant’s son called the police to tell them that defendant was a convicted felon with firearms, was off his medication, and had be acting erratically and assaulted someone. He said he lived at the house with his father. He consented to a search, and the consent was with objective reliance on apparent authority. Defendant credibly argued, the court’s view, that he had kicked his son out of the house before that, and he had obtained an order of protection to keep his son away. He argued that the order of protection was served on the Sheriff’s Office and that was “collective knowledge” imputed to all the Sheriff’s Department that the son had no actual authority. While the argument had some limited force, the USMJ cannot find as a matter of fact that the document was actually served on Sheriff’s Department before the consent to search to give it any strength. United States v. Cribbs, 2011 U.S. Dist. LEXIS 116742 (W.D. Tenn. February 11, 2011)*, adopted in part 2011 U.S. Dist. LEXIS 112559 (W.D. Tenn. September 29, 2011).*