On December 28, 2020, the Third Circuit Court of Appeals decided the United States v. Registe[i], in which the court examined whether used excessive force during an officer involved shooting. The relevant facts of Registe, taken directly from the case, are as follows:
[A]t approximately 10:15 p.m. on May 18, 2018, Registe was in his parked car near a bar. Law enforcement personnel were also near the bar investigating a report that people were smoking marijuana around several businesses. Officer Ecedro Lindquist of the Virgin Islands Police Department approached Registe’s car, which had heavily tinted windows. After shining his flashlight in the vehicle, Officer Lindquist saw an empty firearm holster on the rear passenger seat. Registe was in the driver’s seat holding what appeared to be a marijuana cigarette. Detective Richard Velazquez of the Virgin Islands Police Department, who approached Registe’s car on the passenger side, also observed Registe in the driver’s seat with what Velazquez believed was a marijuana cigarette and the empty holster on the rear seat. Because they were in a high-crime area, Officer Lindquist and Detective Velazquez knocked on Registe’s window intending to speak with him about whether he had a firearm in the car or a permit to carry one. Registe tried to drive away, but his path was blocked by moving traffic and Officer Lindquist continued to knock on Registe’s car window. Registe again attempted to leave the area, but traffic again blocked his egress. Registe then parked his car and exited the vehicle.
Exactly what followed is in dispute. The District Court found that Officer Lindquist smelled marijuana as Registe exited his car, and that Detective Velazquez could not determine whether Registe had a weapon in his hand as he exited the car. The officers’ attempt to conduct a pat-down met resistance, which led to Registe’s being handcuffed. The pat-down search yielded neither contraband nor weapons, but Officer Lindquist did retrieve a key to the car. Believing he had probable cause, Officer Lindquist searched the vehicle for contraband. In doing so, he found a Glock handgun in the glove compartment, a backpack containing marijuana in sandwich bags, and cash.[ii]
Registe was subsequently charged with federal drug and gun violations. He filed a motion to suppress the evidence, and the district court denied the motion. He was convicted by a jury on the drug offense and found not guilty on the gun offense. He then filed an appeal to the Third Circuit Court of Appeals and challenged the denial of his motion to suppress.
On appeal Registe argued that the officers lacked reasonable suspicion to conduct the initial Terry stop. On this issue, the court held
Officer Lindquist and Detective Velazquez had an objective basis for suspecting that “criminal activity may be afoot” and that “the person[ ] with whom [they were] dealing may be armed and presently dangerous.” Terry, 392 U.S. at 30; see also United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981)[iii]
Thus, the court found there was sufficient reasonable suspicion to justify the initial stop of Registe. This was because the officers were responding to a report of people smoking marijuana near the businesses, and they observed Registe in the driver’s seat of a car holding what appeared to be a marijuana cigarette. Additionally, they observed an empty holster on the backseat of the car. Thus, reasonable suspicion was present to detain Registe, investigate the drug complaint, and frisk him on the reasonable belief that he may be armed and dangerous.
Registe also argued that the police lacked probable cause to search his vehicle. He argued first that the district court misunderstood the officer’s testimony at the suppression hearing and improperly found the officers, in fact, smelled marijuana. The court of appeals examined the record and noted that Officer Lindquist “made it clear that the odor of marijuana was evident upon Registe’s exit from the vehicle.”[iv] The court noted that, in Ramos v. United States[v], they previously held
It is well settled that the smell of marijuana alone, if articulable and particularized, may establish not merely reasonable suspicion, but probable cause.[vi]
Since the officers recognized the odor of marijuana as Registe exited the vehicle and had seen him smoking what appeared to be a marijuana cigarette, the court stated that the officer’s had probable cause to search his vehicle.
Second, Registe argued that court precedent, particularly, Ramos, is not applicable because the use of small amounts of marijuana are no longer criminal infractions in the Virgin Islands. The court of appeals noted that, in 2014, the Virgin Islands legislature decriminalized possession of an ounce or less of marijuana. However, the court of appeals also noted that, under federal law, particularly 21 U.S.C. Sec. 812(c), Sch. 1(c)(10), (17), marijuana and THC are still considered controlled substances. The court then stated
Its partial decriminalization in the Virgin Islands is therefore irrelevant to the determination of whether, under the totality of the circumstances, the smell of marijuana gives rise to probable cause to believe that the possession of marijuana in that instance is unlawful under 21 U.S.C. § 841. As we explained in United States v. Laville, 480 F.3d 187, 189, 48 V.I. 1012 (3d Cir. 2007), “notwithstanding the validity of the arrest under state or local law, probable cause [for purposes of the Fourth Amendment] 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.[vii]
Thus, the court held that probable cause still existed to believe Registe had evidence of a crime in his vehicle, in spite of the existence of state law that decriminalized possession of a an ounce or less of marijuana, because it was still an offense under federal law.
As such, the court of appeals affirmed the denial of the motion to suppress.
[i] No. 19-3155 (3rd Cir. Decided December 28, 2020 Unpublished)
[ii] Id. at 2-3
[iii] Id. at 4
[iv] Id. at 5
[v] 443 F.3d 304, 308 (3rd Cir. 2006)
[vi] Registe at 4 (quoting Ramos, 443 F.3d at 308)
[vii] Id. at fn. 2 (emphasis added)