American Bar Delegates Call For End to Border Exception in V.I. Search and Seizure Cases

Attorney Tom Bolt (Photo from the BoltNagi PC website.)
Attorney Tom Bolt (Photo from the BoltNagi PC website)

A push for legal protection under the Constitution for the U.S. Virgin Islands recently won support from a national organization representing lawyers. Members of the Virgin Islands Bar Association petitioned the American Bar Association, asking for their support in a matter involving the Fourth Amendment right to legal search and seizure.

The American Bar Association House of Delegates approved the resolution, saying that people traveling between the U.S. Virgin Islands and the U.S. mainland must be given the same protections as they enjoy in Puerto Rico and the 50 states.

The resolution was introduced by St. Thomas attorney Tom Bolt, who is currently serving as the territory’s representative to the house of delegates. Adoption of the resolution came in response to a ruling by a federal appellate court in a case based in the V.I. involving smuggled firearms.

In January, the U.S. Supreme Court denied a petition to review the decision by the U.S. Court of Appeals for the 3rd Circuit in the case of United States v. Baxter.

“Though the Supreme Court has identified the Fourth Amendment’s protection from unreasonable search and seizure as a right that extends to the U.S. territories, a decision [made] last year by the U.S. Court of Appeals for the 3rd Circuit deviated from this precedent. In United States v. Baxter, the 3rd Circuit applied the international ‘border search exception’ to searches of people and goods traveling between the mainland United States and the U.S. Virgin Islands,” said Equally American founder Neil Weare.

In the Baxter case, court documents say a drug-sniffing dog picked up the scent of marijuana from a package traveling through the Cyril E. King Airport, arriving on a cargo plane. Inspectors with U.S. Customs and Border Protection opened the package and did not find any drugs, but did find ammunition, a bullet magazine and parts of a firearm. A second package, with the same address and more weapons parts, arrived days later.

Authorities then set up a controlled delivery and apprehended a suspect, charged with two counts of illegal transport of firearms.

Weare said in that case, authorities missed an important step – going to court to prove probable cause and obtaining a search warrant.

“And that’s what happens every day, all over the country, and they do it in Puerto Rico. These kinds of things happen all the time,” Weare said. “That’s what the Constitution requires to protect people’s civil liberties.”

Lawyers representing the federal government invoked the border-search protection exception to the Fourth Amendment in justifying the action taken by Customs. The District Court of the Virgin Islands granted a motion to suppress the evidence because of the way it was discovered. The 3rd Circuit court reversed that decision on appeal.

The resolution adopted by the House of Delegates called for an end to the use of the exception in search and seizure actions in the U.S. Virgin Islands and other insular areas. “The American Bar Association supports the passage of appropriate legislation to abolish the border-search exception to the Fourth Amendment for travel between a United States territory and other parts of the United States,” part of the resolution read.

Firearms trafficking is not unusual in the Virgin Islands. In November, two siblings were sentenced to federal prison for sending and receiving disassembled weapons parts from Georgia to the St. Thomas Jet Center. Defendant Natasha France was sentenced to three years; co-defendant Shawn Tyson received 10 years as a felon in possession of illegal firearms.

Bolt said he does not know if the actions taken by Customs in the Baxter case also happen in other cases involving apprehension of illegal weapons shipped to the territory. “I don’t know if a study has been done, but I think the people of the Virgin Islands should have the same protections against unreasonable search and seizure. We’re not asking for any more, we’re not asking for any less,” the attorney said.

Weare said it’s common for law enforcement action to conflict with the observance of civil liberties. “They did their job because they had a drug-sniffing dog find the package. With that evidence they should have got a warrant to search the package like they would have done anywhere else in the United States,” he said.