On Appeal from the District Court of the Virgin Islands Division of St. Thomas (D.C. No. 06-cr-00039). District Judge: Honorable Curtis V. Gomez.
The opinion of the court was delivered by: Fisher, Circuit Judge
Before: FISHER, JORDAN and STAPLETON, Circuit Judges.
Domiquite Mathurin was convicted by a jury of possession with intent to distribute cocaine, while aiding and abetting his co-defendant, Francisco Perez-Polanco, and unlawfully using cellular phones to facilitate possession with intent to distribute cocaine. On appeal, he contends that the District Court committed reversible error in denying in part his motion to suppress cocaine discovered during a stop of a vehicle in which he was a passenger. Specifically, Mathurin argues that the law enforcement officers lacked reasonable suspicion under the Fourth Amendment, as needed for a valid investigatory stop of the vehicle in which he was traveling, because the facts the officers relied upon, under the totality of the circumstances, failed to eliminate a substantial portion of innocent travelers. Because we conclude that the officers possessed sufficient information to give rise to a reasonable suspicion, we will affirm Mathurin's conviction.
At approximately 11:00 a.m. on June 15, 2006, Hillary Hodge, Jr. ("Agent Hodge"), the resident agent in charge for the United States Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE") Office of Investigations, received a call from a DHS Customs and Border Protection ("CBP") aircraft, alerting him that a "suspicious vessel" had departed Culebra, Puerto Rico and was heading for Crown Bay Marina ("Marina") in St. Thomas, United States Virgin Islands. CBP described the boat as suspicious because "it was a yolla-type vessel, low to the water line, painted probably blue in color, two outboard engines, no appearance of any recreational use . . . , and with only a single occupant on board."
Agent Hodge directed two agents in his local ICE office, Special Agent Michael Aguilar ("Agent Aguilar") and Task Force Agent Shawn Querrard, to go to the Marina to look for the vessel, and then contacted the Drug Enforcement Administration ("DEA") resident agent in charge in St. Thomas to seek assistance in locating the boat and person on board. The ICE agents located the boat matching the tipster's description docked in a slip at the Marina and maintained surveillance on it. CBP Inspector Richard Peak joined them shortly thereafter. The agents questioned Marina workers and learned that a man named Francisco Perez-Polanco*fn1 had arrived in the boat, checked into the Marina that day, rented the slip until midnight that evening for approximately $43 or $45, requested a taxi to the nearest hotel, and carried no luggage.
The agents called local area hotels and located Perez-Polanco at the Island Beachcomber Hotel ("Hotel"). After serving the Hotel with a DEA administrative subpoena, the agents further learned that Perez-Polanco paid approximately $116 for the room in cash, checked in that day, planned to check out the following day, and occupied room 207. The agents researched Perez-Polanco's criminal record and found that he was arrested in Puerto Rico on April 26, 2004, for possession of approximately six kilograms of cocaine. In September 2004, he was "detained in the seizure of approximately $260,000," and was also arrested in April 2005 for aggravated assault.
The agents established surveillance on the hotel room because, as Agent Aguilar later testified, Perez-Polanco was a "known drug trafficker" and they believed, based on their experience in St. Thomas, that "a drug transaction was imminent." After several hours of surveillance, the agents noticed Mathurin arrive at the Hotel around 7:30 p.m. in a green Toyota 4Runner with Dionicio Mercedes. Mathurin exited the vehicle with a light-colored plastic bag, entered Perez-Polanco's hotel room, exited it a few minutes later without the plastic bag, and left the Hotel in the 4Runner. At around 9:30 p.m., the agents observed the same 4Runner arrive at the Hotel again. Mathurin exited the vehicle carrying a dark-colored plastic bag and entered Perez-Polanco's hotel room. Mathurin exited the room alone a few minutes later without the plastic bag, and started to return to the vehicle. Shortly thereafter, Perez-Polanco exited the hotel room with a small tan backpack on his back. However, before proceeding toward the parking lot, he paused to look around, then headed to the same 4Runner, leaving some distance between Mathurin and himself. Mathurin and Perez-Polanco both got into the 4Runner.
The 4Runner left the Hotel parking lot with Mercedes driving, heading in the direction of the Marina. The agents stopped the vehicle and ordered all three men out of the car. Perez-Polanco fled on foot from the rear seat of the vehicle. The officers arrested Mathurin and Mercedes, and later apprehended Perez-Polanco. The agents found a tan backpack in the back seat ...