2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-16-2007

USA v. Laville

Precedential or Non-Precedential: Precedential

Docket No. 06-1577

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-1577

 

UNITED STATES OF AMERICA,

 Appellant

v.

KEVIN LAVILLE

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF THE VIRGIN ISLANDS

D.C. Crim. No. 04-cr-00142-1

District Judge: The Honorable Curtis V. Gomez

 

Argued: December 4, 2006

 

Before: McKEE, BARRY and STAPLETON, Circuit Judges 

(Opinion Filed: March 16, 2007)

 

John-Alex Romano, Esq. (Argued)

United States Department of Justice

Criminal Division

P.O. Box 899

Ben Franklin Station

Washington, D.C. 20044-0899

-AND-
2

Angela P. Tyson-Floyd, Esq.

Office of the United States Attorney

1108 King Street, Suite 201

Christiansted, St. Croix

USVI, 00820

Counsel for Appellant

Natalie N. Tang How, Esq. (Argued)

27 & 28 King Cross Street

Christiansted, St. Croix

USVI, 00820

Counsel for Appellee

 

OPINION OF THE COURT

 

BARRY, Circuit Judge

What is required for a finding of probable cause within

the meaning of the Fourth Amendment can be a difficult

question, made more difficult when, as here, there is a

misunderstanding as to what one of our decisions has held. We

write to correct that misunderstanding by making clear that state

or local law does not dictate the reasonableness of an arrest for

purposes of a Fourth Amendment probable cause analysis—a

violation of state or local law is not, in other words, a per se

violation of the Fourth Amendment. Rather, notwithstanding the

validity of the arrest under state or local law, probable cause

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. We find that the circumstances

surrounding the warrantless arrest before us gave rise to

probable cause to believe that an offense had been committed
3

and rendered that arrest reasonable under the Fourth

Amendment. We will, therefore, reverse. 

I.

In the early morning hours of Tuesday, August 17, 2004,

sometime before 7:00 A.M., a boat carrying 32 illegal aliens ran

aground on a reef in Christiansted harbor, St. Croix. An

eyewitness on the wharf phoned the Virgin Islands Police

Department (“VIPD”) to report that illegal aliens were exiting

the boat and coming ashore.

Officer Aldemar Santos of the VIPD Marine Unit

responded to the call between 7 and 8:00 A.M. From the wharf,

he confirmed that a boat had indeed run aground in the harbor

and that a number of people were still onboard. He also spoke

with the citizen who had phoned the police, Mark Sperber, and

Sperber pointed out four Hispanic-looking individuals sitting

nearby on the boardwalk. Santos approached them and

identified himself as a police officer. In response to his

questioning, the individuals stated that they were Cubans, that

they had come off the stranded boat, and that other aliens were

in the vicinity.

Sperber independently advised Santos that other illegal

aliens had come ashore and were around the corner. As

additional police units arrived, Sperber offered to identify the

other aliens. Santos, Sperber, and several uniformed officers

walked down the boardwalk and around the corner, and Sperber

pointed out three black males sitting on a bench. When the men

saw the approaching officers, Santos later testified, “they stood

up and started walking away really fast.” (App. vol. II at 39.)

Hoping to cut the men off, Santos walked down a side

street while the other officers continued to follow the three men. 

On his radio, he heard an officer shout “he’s running” and

another officer say that one of the men was heading toward a

shopping area on Strand Street. Santos proceeded in the

direction of the shopping area, where he saw appellant Kevin

Laville, who he recognized as one of the men who had been
4

sitting on the bench. Upon spotting Santos, Laville began to run,

but stopped when Santos yelled “Police; stop.” Santos ordered

Laville to put his hands up, patted him down, and placed him in

handcuffs.

As they walked back to the police car, Laville stated, in

response to Santos’s questions, that he was from Dominica and

was a crew member on the stranded boat. Laville asked what

island he was on, but Santos believed that Laville knew he was

on St. Croix. Meanwhile, the other officers apprehended all of

the individuals who had come ashore. Later that morning,

agents from Immigration and Customs Enforcement (“ICE”)

came to the police station and took custody of all of the detained

individuals, including Laville.

The next day, utilizing a photo array of all 32 individuals

who had been on the boat, four of the Cuban passengers

identified Laville and co-defendant Carter Magloire as the boat’s

operators. That same day, ICE Agent David Levering and

Officer Santos conducted a videotaped interview of Laville. 

After being advised of his Miranda rights, he again stated that he

was from Dominica and had helped to operate the boat. He also

said that he believed he had landed on the island of Tortola in

the British Virgin Islands. Five additional passengers

subsequently identified Laville as a member of the boat’s crew.

On September 14, 2004, a federal grand jury returned a

three-count indictment charging Laville and Magloire with

conspiracy to bring in illegal aliens in violation of 8 U.S.C. §

1324(a)(1)(A)(v)(i) (Count 1); bringing in illegal aliens for

financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) (Count

2); and bringing in illegal aliens in violation of 8 U.S.C. §

1324(a)(1)(A)(i) (Count 3). The District Court later severed

Laville’s case from that of Magloire, and Magloire was tried and

convicted on Counts 2 and 3.

Laville filed pro se motions to suppress the identifications

and any evidence obtained as a result of his arrest, including

statements made to Officer Santos and ICE. On August 16,

2005, the District Court held a suppression hearing at which
 Laville has filed a pro se Rule 28(j) letter raising 1

numerous constitutional objections to his prosecution and to United

States immigration policy. As these are neither proper subjects for

a Rule 28(j) letter nor proper matters for consideration on

interlocutory appeal, we do not consider them.

5

Laville was represented by counsel. Officer Santos and ICE

Agents Levering and Kirk Thomas testified to the circumstances

of Laville’s arrest, his post-arrest statements, his identification

by various passengers, and his ICE interview. 

On February 2, 2006, the District Court granted Laville’s

motion to suppress his post-arrest statements to the VIPD and

ICE, but denied his motion to suppress the identifications. The

government timely appealed.

II.

We have jurisdiction over this interlocutory appeal of a

suppression order pursuant to 18 U.S.C. § 3731. In reviewing a

suppression order, we exercise plenary review over the District

Court’s legal conclusions, and we review the underlying factual

findings for clear error. United States v. Delfin-Colina, 464 F.3d

392, 395-96 (3d Cir. 2006).1

A. Laville’s Post-Arrest Statements to Officer Santos

The District Court found that Officer Santos arrested

Laville without a warrant, and that at the time of the arrest

probable cause to believe Laville was an alien smuggler was

lacking. At most, the District Court found, there was probable

cause to believe only that Laville had entered the United States

illegally in violation of 8 U.S.C. § 1325—a misdemeanor. 

Citing, but misreading, our decision in United States v. Myers,

308 F.3d 251 (3d Cir. 2002), the District Court concluded that

because the validity of an arrest is determined by the law of the

state where the arrest occurred, it need look no further than

Virgin Islands statutory law to determine the reasonableness of

Laville’s arrest under the Fourth Amendment. Under 5 V.I.C. §
6

3562(1), a misdemeanor must be committed in the presence of

the officer in order to justify a warrantless arrest. Because the

crime of illegal entry was completed before the officers arrived,

the District Court reasoned, Santos had no authority under

Virgin Islands law to conduct a warrantless arrest. Accordingly,

there was a per se violation of the Fourth Amendment, and the

Court suppressed Laville’s post-arrest statements. 

Because the government, too, misreads Myers, it does not

challenge the District Court’s conclusion that an arrest that is

invalid under territorial law—or state or local law—is

unreasonable per se under the Fourth Amendment. Instead, the

government argues that Laville’s arrest was lawful because the

crime of illegal entry had not been completed before the officers

arrived or, alternatively, that illegal entry is a continuing offense. 

We need not address these arguments, however, because the

reasonableness of Laville’s arrest under the Fourth Amendment

does not depend on whether it was lawful under territorial law.

B. Our Holding in Myers

We are compelled, at the outset, to clarify what we did

and did not hold in Myers. Myers concerned a police officer’s

entry into an apartment in response to a report of possible

domestic violence involving a person with a gun, and the

subsequent arrest of the defendant because of the officer’s

suspicion that a crime was underway. We concluded that the

officer was justified in entering the apartment but lacked

probable cause to arrest the defendant once inside. Myers, 308

F.3d at 265. In reaching this conclusion, we painstakingly

examined all of the circumstances within the officer’s

knowledge at the time of the arrest. We did not consider these

circumstances in isolation, but necessarily measured them

against the potential offenses for which the defendant could

conceivably have been charged. We found that the

circumstances surrounding the arrest were insufficient to justify

a reasonable belief that any offense had been committed. Id. at

284 (Alarcon, J., dissenting) (“The Majority has concluded that

Officer Azzarano did not have probable cause to arrest Myers for

any crime.”).
 Other courts of appeals are in accord. See, e.g., United 2

States v. Mikulski, 317 F.3d 1228, 1232 (10th Cir. 2003); Pasiewicz

v. Lake County Forest Preserve Dist., 270 F.3d 520, 527 (7th Cir.

2001); United States v. Baker, 16 F.3d 854, 856 n.1 (8th Cir. 1994);

cf. Atwater v. City of Lago Vista, 532 U.S. 318, 341-45 (2001)

(considering state law as one measure of the reasonableness of

warrantless arrests for misdemeanors). 

7

One of the state-law crimes we considered was the

misdemeanor offense of simple assault. In discussing that

offense, we noted a Pennsylvania statute authorizing warrantless

arrests for misdemeanors only when they are committed in the

presence of the arresting officer or when specifically authorized

by statute. Noting that the validity of an arrest is determined by

the law of the state where the arrest occurred, id. at 255, we

concluded that the officer’s warrantless arrest for simple assault

“is not authorized under Pennsylvania law unless the record

establishes that a simple assault occurred in his presence.” Id. at

256 (emphasis added). It is important to note that we did not

address the relationship between Pennsylvania law and the

federal law of probable cause, and we certainly did not hold that

the former dictated the latter. Indeed, we made it quite clear that

the validity of an arrest under state law must never be confused

or conflated with the Fourth Amendment concept of

reasonableness, and that the validity of an arrest under state law

is at most a factor that a court may consider in assessing the

broader question of probable cause. Cf. Ker v. California, 374 2

U.S. 23, 38 (1963) (plurality opinion) (considering whether

arrest was reasonable under the Fourth Amendment

“notwithstanding its legality under state law”). In conclusion,

we held that the totality of the circumstances did not give rise to

probable cause to believe that an assault had occurred at all,

much less in the arresting officer’s presence. Myers, 308 F.3d at

258 (noting that the arresting officer’s testimony “does not

establish a reasonable belief that Myers had assaulted Bennett,

and it certainly does not establish any assault in the officer’s

presence”); see also id. at 262 (“[T]he testimony does not

support a finding that the officer had a reasonable belief that

Myers had been involved in a physical altercation with Bennett. 
8

Likewise, the testimony does not corroborate that a ‘struggle

occurred or that the officer thought one had.’”). 

We did not hold in Myers and, indeed, have never held

that an arrest that is unlawful under state or local law is

unreasonable per se under the Fourth Amendment. Yet, the

District Court effectively applied just such a per se rule when it

held that Santos’s warrantless arrest for a misdemeanor that

arguably did not occur in his presence violated 5 V.I.C. §

3562(1), the Virgin Islands’s misdemeanor-presence statute, and

was, therefore, unreasonable under the Fourth Amendment. 

A per se rule inappropriately draws federal courts into the

enforcement of state and local law. By suppressing Laville’s

post-arrest statements because it found a violation of the Virgin

Islands’s misdemeanor-presence rule, the District Court was, in

effect if not in fact, enforcing territorial criminal procedure, and

doing so in a prosecution by the federal government for a

violation of federal law. It is well understood, however, that

“[m]ere violation of a state statute does not infringe the federal

Constitution,” and that “[s]tate rather than federal courts are the

appropriate institutions to enforce state rules.” Archie v. City of

Racine, 847 F.2d 1211, 1216, 1217 (7th Cir. 1988) (en banc); see

also Johnson v. Fankell, 520 U.S. 911, 919 (1997) (noting “‘the

importance of state control of state judicial procedure’” (quoting

Henry M. Hart, Jr., The Relations Between State and Federal

Law, 54 Colum. L. Rev. 489, 508 (1954))); Poulos v. State of

New Hampshire, 345 U.S. 395, 409 (1953) (stating, in the due

process context, that “official failures to act in accordance with

state law, redressable by state judicial procedures,” are not “state

acts violative of the Federal Constitution”). A per se rule of

reasonableness would inappropriately enlist federal courts in the

enforcement of state rules of criminal and judicial procedure. 

Application of a per se rule could also lead to the creation

of different standards governing arrests made by peace officers

of different states for the same federal offense. Conceivably,

fifty different constitutional standards of arrest, each one

dictated by a respective state’s positive and decisional law, could

result. What would be reasonable and constitutional in one state
9

could be unreasonable and unconstitutional in another. 

Meanwhile, federal courts of appeals would be compelled to

recognize—and, indeed, to perpetuate—such disparities among

the states and territories within their jurisdictions. If, for

instance, we were to uphold the District Court’s application of a

per se rule here, we might nevertheless conclude, in some future

case, that an otherwise identical arrest occurring in New Jersey is

reasonable and constitutional. Such a patchwork of federal

constitutional standards, arising as it were from the individual

legislative enactments of the various states and territories, is

inconsistent with our single federal constitution. See Martin v.

Hunter’s Lessee, 14 U.S. (1Wheat.) 304, 347-48 (1816) (noting

“the importance, and even necessity of uniformity of decisions

throughout the whole United States, upon all subjects within the

purview of the constitution”). 

Moreover, a per se rule could well create disparity in the

constitutionality of arrests performed by state and federal

officers for the same offense within the same state or territory. It

is easy to imagine a scenario in which officers of the VIPD and

officers of the ICE, working on a joint law-enforcement detail,

simultaneously approach a group of suspected illegal aliens

under circumstances similar to those presented here. Acting on

what they believe to be probable cause, a VIPD officer and an

ICE officer make simultaneous, warrantless arrests. If we were

to apply a per se rule, we would likely be compelled to find that

the arrest made by the VIPD officer was unreasonable per se

and, therefore, unconstitutional, whereas the identical arrest

made by the ICE officer was reasonable and constitutional. The

Fourth Amendment does not permit, much less require, any such

thing. 

By engrafting territorial procedural requirements onto the

federal constitutional standards governing seizure, the District

Court went beyond simply determining the reasonableness of

Laville’s arrest. Rather, the Court effectively required Santos to

be certain that a misdemeanor had been committed, by virtue of

having witnessed its commission, and to ensure that conviction

was possible. A significant body of caselaw makes clear why

any such requirements simply cannot be, and why a Fourth
10

Amendment determination cannot turn on the exigencies of the

law of a particular state or territory or an officer’s knowledge of

the elements of a particular offense and whether each element

has been satisfied. “The test is one of federal law, neither

enlarged by what one state may have countenanced nor

diminished by what another may have colorably suppressed.” 

Elkins v. United States, 364 U.S. 206, 223-24 (1960). As the

Supreme Court emphasized in Draper v. United States, there is a

“‘difference between what is required to prove guilt in a criminal

case and what is required to show probable cause for arrest or

search.’” 358 U.S. 307, 311-12 (1959) (quoting Brinegar v.

United States, 338 U.S. 160, 173 (1949)). And, as Judge

Learned Hand recognized more than sixty years ago, the

“‘reasonable cause’ necessary to support an arrest cannot

demand the same strictness of proof as the accused’s guilt upon

a trial, unless the powers of peace officers are to be so cut down

that they cannot possibly perform their duties.” United States v.

Heitner, 149 F.2d 105, 106 (2d Cir. 1945) (quoted in Draper,

358 U.S. at 312 n.4); see also Graham v. Connor, 490 U.S. 386,

396 (1989) (stating that in determining whether use of force

violates the Fourth Amendment, “‘reasonableness’ . . . must be

judged from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight”). 

And it is reasonableness that is the central inquiry under

the Fourth Amendment. United States v. Williams, 417 F.3d

373, 376 (3d Cir. 2005). “[S]ufficient probability, not certainty,

is the touchstone of reasonableness under the Fourth

Amendment.” Hill v. California, 401 U.S. 797, 804 (1971); see

also Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813)

(recognizing that probable cause “means less than evidence

which would justify condemnation”). Probable cause exists

whenever reasonably trustworthy information or circumstances

within an arresting officer’s knowledge are sufficient to warrant

a person of reasonable caution to conclude that an offense has

been or is being committed by the person being arrested. 

Draper, 358 U.S. at 313; Myers, 308 F.3d at 255. 
11

C. Laville’s Arrest Was Supported by Probable Cause

We must, therefore, determine whether Officer Santos’s

warrantless arrest satisfied the Fourth Amendment’s requirement

that the arrest be reasonable. Reasonable suspicion and probable

cause are determined with reference to the facts and

circumstances within the officer’s knowledge at the time of the

investigative stop or arrest. Devenpeck v. Alford, 543 U.S. 146,

152 (2004); Florida v. J.L., 529 U.S. 266, 271 (2000). The

arresting officer need not have contemplated the specific offense

for which the defendant ultimately will be charged. The

appropriate inquiry, rather, is whether the facts and

circumstances within the officer’s knowledge at the time of an

investigative stop or arrest objectively justify that action. 

Devenpeck, 543 U.S. at 153. 

Santos went to the wharf between 7 and 8:00 A.M. to

investigate a report, phoned in by Sperber, that a boat had run

aground in Christiansted harbor and illegal aliens were coming

ashore. When he arrived at the wharf, Santos observed firsthand

that there was in fact a boat stranded in the harbor with a number

of people still onboard. He also met face-to-face with Sperber,

who pointed out a group of four individuals sitting nearby on the

boardwalk. These individuals identified themselves to Santos as

Cubans who “came into shore” off the boat (App. vol. II at 38),

and, as the District Court found, “indicated that other aliens were

in the vicinity” (App. vol. I at 6). Sperber separately informed

Santos that more suspected aliens were “around the corner” and

offered to point them out. (App. vol. II at 39.) Acting on this

information, Santos and his fellow officers walked down the

boardwalk and around the corner, and, there, found Laville and

two companions sitting on a bench.

Taking these facts together with all reasonable inferences,

see Terry v. Ohio, 392 U.S. 1, 27 (1968), we find that by the

time Santos approached Laville and his companions on the

boardwalk, he had, at the very least, reasonable suspicion to

believe that criminal activity was afoot. If no further

circumstances had existed, Santos would have been justified in

performing an investigative stop of Laville and his companions. 
12

As it so happened, however, subsequent events elevated Santos’s

reasonable suspicion to the level of probable cause for an arrest.

When Laville and his companions spotted the

approaching police officers, they immediately “stood up and

started walking away really fast.” (App. vol. II at 39.) Their

actions did not evidence an intent simply to go about their

business, see Florida v. Royer, 460 U.S. 491, 497-98 (1983);

rather, the men suddenly, and deliberately, fled. The rapid

walking soon gave way to headlong flight: Santos heard a fellow

officer exclaim of one of the suspects, “he’s running,” and

personally observed Laville in open flight. (App. vol. I at 6-7.)

It is “well established that where police officers

reasonably suspect that an individual may be engaged in criminal

activity, and the individual deliberately takes flight when the

officers attempt to stop and question him, the officers generally

no longer have mere reasonable suspicion, but probable cause to

arrest.” United States v. Sharpe, 470 U.S. 675, 705 (1985)

(Brennan, J., dissenting); see also Peters v. New York, decided

with Sibron v. New York, 392 U.S. 40, 66-67 (1968)

(“[D]eliberately furtive actions and flight at the approach of

strangers or law officers are strong indicia of mens rea, and

when coupled with specific knowledge on the part of the officer

relating the suspect to the evidence of crime, they are proper

factors to be considered in the decision to make an arrest.”); 2

Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 3.6 (4th ed. 2007) (“[I]f there already exists a

significant degree of suspicion concerning a particular person 

. . ., the flight of that individual upon the approach of the police

may be taken into account and may well elevate the pre-existing

suspicion up to the requisite Fourth Amendment level of

probable cause.” (internal footnotes omitted)). “Headlong

flight—wherever it occurs—is the consummate act of evasion: It

is not necessarily indicative of wrongdoing, but it is certainly

suggestive of such.” Illinois v. Wardlow, 528 U.S. 119, 124

(2000). Thus, when Laville fled at the sight of the approaching

officers, Santos no longer merely had reasonable suspicion to

believe that criminal activity was afoot; he now had probable

cause to make an arrest. We find that, given the totality of the
13

circumstances, Santos’s arrest of Laville was reasonable and did

not violate the Fourth Amendment.

D. Laville’s Custodial Statement to ICE 

Having erroneously found that Laville’s arrest was

unlawful and that his statements to Santos must be suppressed,

the District Court next considered the statement Laville made

while in ICE custody. The District Court determined that a “new

arrest” occurred when the VIPD transferred Laville into the

custody of ICE. Finding that the government failed to make an

independent showing of probable cause for this new arrest, the

District Court ordered that Laville’s custodial statement to ICE

also be suppressed.

If Laville’s arrest had been unreasonable under the Fourth

Amendment, then the District Court may have been correct to

suppress his custodial statement to ICE as fruit of the poisonous

tree. See Wong Sun v. United States, 371 U.S. 471, 484-86

(1963). We need not decide this question, however, because

Laville’s arrest was reasonable. Where his initial arrest by

territorial authorities did not violate the Fourth Amendment, ICE

was not required to make an independent showing of probable

cause before assuming custody. Such custodial transfers are

relatively common in the immigration context, see, e.g., United

States v. Bowley, 435 F.3d 426, 428 (3d Cir. 2006); Yang v.

Maugans, 68 F.3d 1540, 1544 (3d Cir. 1995), and none of the

authorities cited by the District Court, and none of which we are

aware, even implies that a custodial transfer constitutes a “new

arrest” requiring a separate showing of probable cause. See, e.g.,

California v. Hodari D., 499 U.S. 621, 624-28 (1991)

(discussing when a Fourth Amendment “seizure” occurs, but not

discussing a transfer of custody); Payton v. New York, 445 U.S.

573, 590 (1980) (involving warrantless entry of a home for

purposes of making felony arrest); Sharrar v. Felsing, 128 F.3d

810, 819-20 (3d Cir. 1997) (same); United States v. Sanchez, 509

F.2d 886, 889 (6th Cir. 1975) (involving the Fourth

Amendment’s particularity requirement for search warrants). 

We therefore find that Laville’s transfer into ICE custody was

not a “new arrest” requiring an independent showing of probable
14

cause, and that the District Court erred in suppressing Laville’s

subsequent statement to ICE.

III.

In determining whether an arrest is reasonable under the

Fourth Amendment, courts must never lose sight of the

fundamental principle that “‘reasonable suspicion’ and ‘probable

cause’ . . . are commonsense, nontechnical conceptions that deal

with ‘the factual and practical considerations of everyday life on

which reasonable and prudent men, not legal technicians, act.’” 

Ornelas v. United States, 517 U.S. 690, 695 (1996) (some

internal quotation marks omitted) (quoting Illinois v. Gates, 462

U.S. 213, 231 (1983)); see also Sharrar, 128 F.3d at 818 (stating

that courts must “use a ‘common sense’ approach to the issue of

probable cause”). It is not consistent with this principle to

determine the reasonableness of an arrest based solely upon the

arresting officer’s technical compliance with state or local law. 

Accordingly, we hold that the unlawfulness of an arrest

under state or local law does not make the arrest unreasonable

per se under the Fourth Amendment; at most, the unlawfulness

is a factor for federal courts to consider in evaluating the totality

of the circumstances surrounding the arrest. Because the District

Court erroneously held that Officer Santos’s warrantless arrest

was unreasonable per se and because it erroneously held that

Laville’s transfer to ICE custody required a separate showing of

probable cause, we will reverse the District Court’s order

suppressing Laville’s post-arrest statements and remand for

further proceedings consistent with this Opinion. 

 
15

McKee, Concurring

I join Judge Barry’s analysis and opinion. However, two

concerns cause me to write separately. First, I am concerned

that the certification the Government filed pursuant to 18 U.S.C.

§ 3731 may be disingenuous. Second, I think this case can be

decided entirely on the basis of our decision in Yang v.

Maugans, 68 F.3d 1540 (3d Cir. 1995). However, given the

apparent confusion arising from our decision in United States v.

Myers, 308 F.3d 251 (3d Cir. 2002), I join Judge Barry in taking

this opportunity to clarify our holding there.

I. The Government’s Certification.

18 U.S.C. § 3731 allows the Government an interlocutory

appeal of an order suppressing evidence if, and only if, “the

United States attorney certifies to the district court that the

appeal is not taken for purpose of delay and that the evidence is

a substantial proof of a fact material in the proceeding.” 18

U.S.C. § 3731, ¶ 2. The Government clearly did not take this

appeal for purposes of delay, but I am skeptical of the claim that

the evidence the District Court suppressed was “substantial

proof of a fact material” to the charges against Laville, as it must

be if we are to have jurisdiction over an interlocutory order.

Laville was charged with illegally bringing aliens into the

United States in violation of 8 U.S.C. § 1324(a)(1)(A)(I), doing

so for financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii),

and conspiring to do so in violation of 8 U.S.C. §

1324(a)(1)(A)(v)(I). As the majority explains, after he was

apprehended by Officer Santos, Laville said that he was from

Dominica, and that he had been a crew member on the stranded

boat. The day after he was apprehended, Santos was turned over

to agents from Immigration Customs and Enforcement, and he

repeated those statements to them. He added only that he thought

he had landed on Tortola, an island in the British Virgin Islands. 

Those are the statements that the District Court suppressed, and

that is the evidence that purportedly constitutes “substantial

proof of a material fact” in Laville’s prosecution. 

8 U.S.C. § 1324 makes it a crime for anyone to knowingly

“bring . . . [an alien] to the United States . . . at a place other than

a designated port of entry . . . .” 8 U.S.C. § 1324(a)(1)(A)(I). 

The various subsections Laville was charged with violating

specify penalties for bringing aliens into the United States, doing
 For example, it is conceivable that the Cuban witnesses 3

were either unavailable or uncooperative. In that event, Laville’s

admission that he operated the boat would become crucial to the

Government’s proof. However, nothing on this record suggests

that is the case, and the Government offered no such explanation

when queried about the certification during oral argument.

16

so for financial gain, or conspiring to do so. The citizenship or

residence of the person who illegally brings aliens into the

United States is irrelevant. A United States citizen can be

convicted of illegally bringing aliens into the United States (and

the related offenses) the same as a legal permanent resident or an

illegal alien. The Government need only prove that a defendant

brought illegal aliens into the United States at a location other

than “a designated port of entry,” and that he/she did so

knowingly. I therefore fail to see how Laville’s citizenship can

acquire the materiality the Government has claimed by filing this

appeal and the concomitant certification under § 3731. Laville’s

statement that he was a crew member is relevant because it

establishes that he actually facilitated the passengers’ illegal

arrival into the United States and creates an inference that he did

so for financial gain (as a paid crew member). However, the

Government did not need his post-arrest statements to establish

that he was a crew member. As Judge Barry notes, several of the

passengers identified Laville and a co-defendant as the boat’s

operators. The post-arrest statements that are the subject of this

interlocutory appeal may flush out a bit of detail and provide

some colorful background, but they are certainly not “substantial

proof of a fact material in the proceeding.” I therefore doubt that

the § 3731 certification was afforded the consideration Congress

intended. Rather, it appears to have been reflexively filed in

order to challenge a ruling the Government disagreed with. 

I realize that we are not in a position to understand all of

the dynamics of this prosecution, and that there may be an

explanation for the Government’s certifying that Laville’s

apparently superfluous statements are material to his prosecution

that is not evident on appeal. However, the record certainly does

not suggest any such explanation, and the Government was not

able to provide one when asked during oral argument.3
 5 V.I.C. § 3562 provides: “A peace officer may make an

4

arrest in obedience to a warrant delivered to him, or may, without

a warrant, arrest a person – (1) for a public offense committed or

attempted in his presence.” 

17

I also realize that we do not look behind the United States

Attorney’s certification under § 3731, nor question its veracity.

See Gov’t of V.I. v. Hodge, 359 F.3d 312, 325 (3d Cir. 2004)

(“The United States Attorney’s word is enough; the reviewing

court does not consider the truth of the certification.”). 

Nevertheless, I think it is clear that the Congress did not intend

the certification to function only as a procedural calisthenic that

the Government can employ whenever it disagrees with the

District Court’s suppression ruling. I hope that the Government

has not regarded it as such here.

II. The Arrest Was Legal Even Under Virgin Islands Law.

As Judge Barry explains, the District Court concluded

that Officer Santos did not have probable cause to arrest Laville

for smuggling aliens. The court believed that Santos had, at

most, probable cause to believe Laville had entered the United

States illegally in violation of 8 U.S.C. § 1325. Under Virgin

Islands law, local law enforcement officers have authority to

arrest for violations of federal immigration laws. See, e.g.,

United States v. Santana-Garcia, 264 F.3d 1188, 1193-94 (10th

Cir. 2001). Nevertheless, the court suppressed Laville’s

statements because illegal entry into the United States is a

misdemeanor. Under the law of the Virgin Islands, Officer

Santos could not make a warrantless arrest for a misdemeanor

unless the offense was committed in his presence. The District 4

Court erroneously concluded that that requirement governed the

admissibility of the suppressed evidence. 

“The definition of ‘entry’ as applied for various purposes

in our immigration laws was evolved judicially . . .”, Rosenberg

v. Fleuti, 374 U.S. 449, 453 (1963). As used in immigration

law, entry requires more than physical presence in the United

States; it also requires freedom from official restraint. United

States v. Pacheco-Medina, 212 F.3d 1162, 1164 (9th Cir. 2000). 

The requirement that the alien be free from official restraint to

accomplish an entry into the United States applies to the crime
Resolution of that issue determined the kind of hearing the 5

aliens were entitled to. An alien who has “entered” the United

States is entitled to a removal proceeding, while an alien who has

not “entered” can be refused admission through a summary

exclusion proceeding. In a removal proceeding, the alien receives

many advantages not available to an alien in an exclusion

proceeding, including advance notice of the charges, appeal to an

appellate court, and the right to a country of designation. Yang, 68

F.3d at 1547.

18

of illegal entry in violation of 8 U.S.C. § 1325, as well as the

crime of illegal re-entry under 8 U.S.C. § 1326. See United

States v. Vasilatos, 209 F.2d 195, 197 (3d Cir. 1954) (illegal reentry); United States v. Gonzalez-Torres, 309 F.3d 594, 598 (9th

Cir. 2002) (illegal entry and illegal re-entry); Pacheco-Medina,

212 F.3d at 1164-65 (illegal re-entry); United States v. AngelesMascote, 206 F.3d 529, 531 (5th Cir. 2000) (illegal re-entry).

In Yang v. Maugans, 68 F.3d 1540 (3d Cir. 1995), we

had to determine if an entry had been accomplished by aliens on

a smuggling ship that ran aground off the coast of New York. 

Some of the 300 passengers on that ship managed to swim

ashore before being apprehended, and we had to decide if their

physical presence in New York effectuated an entry into the

United States within the meaning of then-section 101 of the

Immigration and Nationalities Act. The police had responded 5

immediately and they had cordoned off the area of the beach

where the aliens had landed. None of the aliens ever left the

beach area, and they were all arrested within thirty minutes of

their arrival. 

Quoting from the BIA’s decision in Matter of G-, Int.

Dec. 3215, at 5-7 (BIA 1993), we explained that an entry into

the United States requires: “‘(1) crossing into the territorial

limits of the United States, i.e., physical presence; (2)(a)

inspection and admission by an immigration officer, or (b)

actual and intentional evasion of inspection at the nearest entry

point; and (3) freedom from official restraint.’” 68 F.3d at

1545. We held that the aliens never entered the United States

because they never satisfied the third requirement; they were

never free from official restraint. We explained:
 As is evident from Judge Barry’s analysis, my discussion 6

in no way suggests that the legality of Laville’s arrest turns on

whether a misdemeanor was committed in Officer Santos’

19

When an alien attempts to enter the United States,

the mere fact that he or she may have eluded the

gaze of law enforcement for a brief period of time

after having come upon United States territory is

insufficient, in and of itself, to establish freedom

from official restraint.

Id. at 1550. Thus, in Yang as here, none of the defendants was

ever free from official restraint once they touched shore. 

None of the petitioners ever left the beach area,

which was teeming with law enforcement activity

soon after the [the smuggling vessel] ran aground. 

Nor were any of the petitioners free to . . . go at

large and mix with the general population. Far

from indistinguishably mixing with the general

population, petitioners either were apprehended

shortly after coming ashore, or were brought into

custody as a result of immediate and intense law

enforcement efforts. We therefore conclude[d]

that the petitioners were never free from official

restraint.

Id. (Ellipsis in original, internal citation omitted). 

Although the police response here was not as intense as

the response in Yang, I do not believe that the difference rises to

the level of a legal distinction for purposes of determining if

Laville had managed an “entry” under our immigration laws. 

Laville was never free to “go at large and mix with the general

population,” he was “apprehended shortly after coming ashore,”

and he was “brought into custody as a result of immediate and

[relatively] intense law enforcement efforts.” Given the holding

in Yang, the District Court should have concluded that the

offense of illegal entry was committed in the presence of Officer

Santos; it clearly was. Accordingly, Laville’s post-arrest 

statements should not have been suppressed.6
presence. As Judge Barry explains, that Fourth Amendment

inquiry turns on whether Officer Santos had probable cause to

believe that Laville was committing a crime. It is not the fact that

Laville was committing a misdemeanor in the officer’s presence

that validates this arrest. Rather, the totality of the circumstances,

including Officer Santos’ reasonable suspicion when he saw

Laville, establishes probable cause to arrest as required under the

Fourth Amendment. That analysis can not be governed by local

law.

It is, of course, true that an arrest which violates the Federal 7

Constitution is not a legal one notwithstanding its legality under

state law. In the portion of Ker v. California, 374 U.S. 23 (1963),

20

STAPLETON, dissenting:

I read our decision in United States v. Myers, 308 F.3d

251 (3d Cir. 2002), in the same manner as did the District Court

and the parties in this case.

 In Myers, we began our analysis by observing: “The

validity of an arrest is determined by the law of the state where

the arrest occurred. See Ker v. California, 374 U.S. 23, 37

(1963) (plurality opinion).” 308 F.3d at 255. The cited portion

of Ker reads as follows:

This Court, in cases under the Fourth Amendment,

has long recognized that the lawfulness of arrests

for federal offenses is to be determined by

reference to state law insofar as it is not violative

of the Federal Constitution. A fortiori, the

lawfulness of these arrests by state officers for

state offenses is to be determined by California

law.

Ker, 374 U.S. at 37 (citations omitted).

No one contended in Myers that a misdemeanor presence

rule was “violative of the Federal Constitution,” and we went 7
referenced by the Court, for example, the plurality opinion

“examine[d] [an] arrest to determine whether, notwithstanding its

legality under state law, the method of entering the home may

offend federal constitutional standards of reasonableness and

therefore vitiate the legality of an accompanying search.” Id. at 38.

Applying the misdemeanor presence rule to determine the validity

of a Virgin Islands arrest, however, does not infringe on any right

created by the Fourth Amendment.

21

on in Myers to hold as follows:

Under Pennsylvania law, simple assault is a

misdemeanor. As noted above, Pennsylvania law

governs the validity of Myers’ arrest. The

Pennsylvania legislature has specifically limited

the authority of police officers to make warrantless

arrests for misdemeanor offenses. An officer may

conduct a warrantless arrest for a misdemeanor

only if the offense is committed in the presence of

the arresting officer or when specifically

authorized by statute. Officer Azzarano arrested

Myers without a warrant. Therefore, Azzarano’s

arrest for simple assault is not authorized under

Pennsylvania law unless the record establishes that

a simple assault occurred in his presence. 

Myers, 308 F.3d at 256 (citations omitted).

Applying this law to the facts of Myers, we reversed the

district court and held that it must grant the motion to suppress

because the officer had no reasonable ground to believe that a

simple assault was occurring in his presence. In our concluding

paragraph on this issue, we summarized our holding as follows:

Based upon our review of this record we

conclude that a finding that an assault was

“ongoing” in the officer’s presence is clearly

erroneous. We therefore hold that the government

failed to satisfy its burden of establishing that the
Whether and when Laville effected an “entry” is, 8

accordingly, not of controlling significance.

22

police had probable cause to arrest Myers for

simple assault.

Id. at 261.

Essential to this holding was a conclusion that the

government could not rely upon information supplied by a third

party shortly before the arrest:

Azzarano testified that he was suspicious because

hiding behind a door at the approach of a police

officer is inconsistent with a “simple argument.” 

Azzarano explained that he pointed his gun at the

door Myers was hiding behind “because I believed

he had a gun in his possession based upon the fact

that the little girl had said so.” Id. at 71a

(emphasis added). He did not base his conclusion

that Myers was armed on anything he heard or saw

after he entered the residence.

Id. at 261.

Here, as in Myers, local law provides that a warrantless

arrest for a misdemeanor is valid only if the misdemeanor

occurred in the presence of the arresting officer. Here, as in

Myers, the government is not entitled to rely on information

supplied to the arresting officer by a third party. This is the

prevailing misdemeanor presence rule. See 2 Wayne R. LaFave,

et al., Criminal Procedure §3.5. If we apply Myers to the facts

of our case, I believe the challenged evidence must be

suppressed. Based on his own observation, Officer Santos had

no reasonable ground for believing that Laville was an alien,

much less an illegal one.8

This is not to say that, in the absence of Myers, I would

find its holding to be the current law of the land. I conclude
23

only that I do not regard myself free in this case to depart from

what I understand to be the holding in Myers.

My reading of Myers is not the only reason for my

dissent, however. Even in the absence of an applicable

misdemeanor presence rule, I would reach the same conclusion. 

In my view, the totality of the circumstances within the arresting

officer’s knowledge was not sufficient to warrant a person of

reasonable caution to conclude that Laville had committed or

was committing an offense.

As the law regarding information from informants

illustrates, even in the absence of a misdemeanor presence rule,

an officer of reasonable caution does not rely upon the

unsupported belief of someone else who does not appear to have,

and does not purport to have, a reasonable basis for his belief. 

See Illinois v. Gates, 462 U.S. 213, 230 (1983) (whether

information supplied by an informant supports probable cause

depends on informant’s veracity, reliability, and basis of

knowledge, among other considerations); 2 Wayne R. LaFave,

Search & Seizure § 3.4 (noting that although Gates dealt with

information obtained from informants who are part of the

“criminal milieu,” it is “likewise appropriate to give separate

consideration to the matters of veracity and basis of knowledge .

. . [i]n cases where the police have acted or seek authorization to

act primarily upon information from the victim of or a witness to

a crime”). This is relevant here because one cannot determine

whether someone is an alien or a non-alien by simply looking at

him. Nor can one determine whether someone is an illegal alien

or a legal alien by simply looking at him. Mark Sperber thus not

only did not purport to have, but also did not appear to have, a

reliable basis for believing that Laville was anything other than a

citizen or a non-citizen with a right to be present in the United

States.

When Officer Santos stood with Mark Sperber on the

Christiansted wharf, he had reliable information that a sailing

vessel had run aground and that some on board had come on

shore. I am willing to assume for present purposes that Santos

also had reliable information that Laville had come ashore from
Contrary to the Court’s suggestion, Sperber’s tip was not 9

corroborated by the Cubans. The Cubans did not tell Santos that

“other illegal aliens were in the vicinity,” see Maj. Op. at 14. In

fact, the Cubans never advised Santos that they themselves were

illegal aliens; they simply told Santos that they were from Cuba and

had come ashore from the boat. See App. at 38-39. Santos could

not infer from this simple admission that the Cubans were illegal

aliens, as the government frankly conceded to the District Court.

See text, infra.

24

that vessel. But that was the sum total of the relevant, reliable

information Santos possessed when Laville was pointed out to

him. Santos did not question Laville prior to his arrest, and,

while Sperber did assert to Santos that Laville was an “illegal,”

Santos had no basis for believing this was trustworthy

information. Sperber did not purport to have spoken with 9

Laville, and there was no apparent way Sperber could have

learned that Laville was an alien, much less an illegal alien. 

Indeed, the government conceded as much when questioned by

the District Court. It conceded that, even if Santos had obtained

reliable information that Laville was from Dominica, he would

not have had probable cause to believe he was in violation of the

immigration laws:

THE COURT: Would you concede that

knowledge that someone is from Cuba or

Dominica does not in and of itself give rise to

probable cause that someone is in violation of

immigration laws? Would you concede that?

MR. ANDREWS: I would concede, Judge.

App. at 73-74.

In summary, all that Santos reliably knew when Laville

was pointed out to him was that Laville was a person who had

come ashore from a vessel in distress and that clearly did not

provide him with probable cause to believe that Laville had

committed or was committing a crime.
25

The only additional fact Santos knew at the time of

Laville’s arrest was that Laville had attempted to avoid contact

with law enforcement officers. I find this conduct too

ambiguous in this context to provide a basis for more than

speculation.

I would suppress the statement given to the ICE as well as

the statement given to the Virgin Islands police as “fruit of the

poison tree.”

Accordingly, I would affirm the ruling from which the

government appeals.