On Writ of Certiorari from the Supreme Court of the Virgin Islands (S. Ct. Crim. No. 2008-091)
The opinion of the court was delivered by: Smith, Circuit Judge.
BEFORE: McKEE, Chief Judge, FUENTES and SMITH, Circuit Judges
Detective Sergeant Naomi Joseph of the Virgin Islands Police Department applied for a warrant to search Tydel John's home for child pornography, relying solely on an affidavit that established only probable cause to believe that she would find evidence that he had sexually assaulted several children at the school where he taught. In her affidavit, Joseph did not allege any direct evidence that John possessed child pornography, did not aver the existence of any connection between the two crimes, and did not claim either a good faith belief in such a connection or any basis for thinking that one had been established. In general, the affidavit provided no reason to believe that a person who has committed child sexual assault would be likely to possess child pornography. Despite these deficiencies, a Virgin Islands Superior Court judge issued the warrant, and Joseph's search turned up incriminating documents (but no child pornography). We granted certiorari to determine whether this evidence was properly suppressed.
On November 27, 2007, following a presentation by the Virgin Islands Domestic Violence Sexual Assault Council, several of John's sixth-grade students told school officials that John had touched them inappropriately. The school passed this information on to the police, and Joseph was tasked with investigating. She began by interviewing the complaining witnesses, several of whom accused John of sexually assaulting them in his classroom. The girls also advised Joseph that John maintained two spiral notebooks, one blue and one red, in which he routinely "ma[de] notations . . . regarding his students." One student reported that John had written "inappropriate things about the female students of his current class and previous classes" in the blue notebook. According to the witnesses, John carried the notebooks with him to and from school each day in his work bag.
With this information in hand, Joseph sought a warrant authorizing her to search John's home. Joseph's affidavit set forth the above facts in somewhat more detail, and averred that "persons who commit sexual offense crimes involving children customarily hide evidence of such offenses, including notes, photographs, [and] computer files, in their homes and on their computer[s]." In addition to the red and blue notebooks, the warrant application sought permission to collect from John's home pornographic magazines, pornographic photographs of children, and computer files containing pornographic notes and photographs of children. A Virgin Islands Superior Court judge issued the warrant, as requested, on December 3, 2007, and Joseph led the law enforcement team that executed it shortly thereafter.
According to Joseph's testimony at John's suppression hearing, it was "[r]elatively early in the search" that the officers located a black bag containing the red and blue spiral notebooks mentioned in the affidavit. Joseph allowed the search to continue, because she was still "[l]ooking for any pornographic photos of children." The officers under her charge found no such photos, but they nevertheless carted away several computers and ten black and white composition-book-style journals, in addition to the two spiral notebooks that the witnesses had identified. The journals (labeled "Tydel John Journals," with dates) were retrieved from John's bedroom closet and a bookshelf, and did not resemble the spiral notebooks-which had already been seized by the time the journals were found.
While there is nothing in the "Tydel John Journals" that would constitute child pornography, they do contain evidence germane to the charges of aggravated rape, unlawful sexual contact, child abuse, and child neglect that John now faces. He therefore moved to exclude them from trial, arguing that Joseph's search warrant was invalid and that the search violated the Fourth Amendment. The Superior Court granted the motion, and the Supreme Court of the Virgin Islands affirmed in a per curiam opinion. 52 V.I. 247 (2009).
The Court held that the search for child pornography was not supported by probable cause, id. at 256, and that any search of the home that occurred after the blue and red spiral notebooks had been found was thus beyond the permissible scope of the warrant's execution, id. at 260. It then addressed the so-called "good faith" exception to the exclusionary rule, observing that the exception does not apply in the case of a warrant obtained on the basis of an affidavit that is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. at 261 (quoting United States v. Zimmerman, 277 F.3d 426, 436 (3d Cir. 2002)). Because an examination of Joseph's affidavit revealed "not a single assertion that John was in any way associated with child pornography," the court concluded that "the officers executing the warrant blindly relied on the fact that the warrant was issued by a judge and disregarded the fact that their search was not supported by probable cause." Id. at 262. In the view of the Virgin Islands Supreme Court, such "blind reliance" on a warrant issued in the complete absence of probable cause "can and should be deterred by excluding the fruits of the illegal search, and the deterrent effect of suppression is substantial enough to outweigh any harm to the justice system." Id. at 263. The "good faith" exception therefore did not save the evidence from suppression. Id.
A panel of this court granted the Virgin Islands' petition for a writ of certiorari, "limited to the question whether the decision of the Supreme Court of the Virgin Islands is inconsistent with Herring v. United States, 129 S. Ct. 695 (2009), in its application of the good faith exception to the exclusionary rule." Our order also directed the parties "to explain in their briefing the basis, if any, upon which this Court has certiorari jurisdiction to review the decision of the Supreme Court of the Virgin Islands as a 'final decision' within the meaning of 48 U.S.C. § 1613."
We first address the jurisdictional question propounded in our order granting certiorari, beginning with the text of the relevant statute. Section 1613 defines the relations between the courts of the United States and the courts of the Virgin Islands. It provides that, for the time being, "the United States Court of Appeals for the Third Circuit shall have jurisdiction to review by writ of certiorari all final decisions of the highest court of the Virgin Islands from which a decision could be had." The same section elsewhere states:
The relations between the courts established by the Constitution or laws of the United States and the courts established by [Virgin Islands] law with respect to appeals, certiorari, removal of causes, the issuance of writs of habeas corpus, and other matters or proceedings shall be governed by the laws of the United States pertaining to the relations between the courts of the United States, including the Supreme Court of the United States, and the courts of the several States in such matters and proceedings.
Reading these sentences together, it is plain that Congress intended for this court's certiorari jurisdiction vis-a-vis the Virgin Islands Supreme Court to mirror the United States Supreme Court's certiorari jurisdiction vis-a-vis any of the fifty state courts of last resort. We can therefore review by certiorari a decision of the Virgin Islands Supreme Court if that decision is "final" within the meaning of the United States Supreme Court's certiorari jurisdiction statute, 28 U.S.C. § 1257.
A ruling on a suppression motion is interlocutory in nature, and therefore does not obviously qualify as a "final decision." See Di Bella v. United States, 369 U.S. 121, 131 (1962). The federal Supreme Court has nevertheless held that an order granting such a motion is reviewable:
Although respondent has yet to be tried in state court, the suppression ruling challenged herein is a "final judgment" within the meaning of 28 U.S.C. § 1257(3), and we have jurisdiction over this case. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 477 (1975), we identified four categories of cases where the Court will treat a decision of the highest state court as final for § 1257 purposes even though further proceedings are anticipated in the lower state courts. This case . . . falls within the category which includes "those situations where the federal claim has been finally decided . . . but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case." 420 U.S., at 481. In this case should the State convict respondent at trial, its claim that certain evidence was wrongfully suppressed will be moot. Should respondent be acquitted at trial, the State will be precluded from pressing its federal claim again on appeal.
New York v. Quarles, 467 U.S. 649, 651 n.1 (1984). This logic is directly applicable here. The Virgin Islands Supreme Court has "finally decided" John's federal constitutional claim, and re-examination of its decision on a later appeal will prove impossible: A conviction would moot the issue, and an acquittal would preclude the prosecution from rearguing the point on appeal. See id.; United States v. Carrillo-Bernal, 58 F.3d 1490, 1494--95 (10th Cir. 1995) (detailing the historical development of the rule against government appeals of not-guilty verdicts); Gov't of the Virgin Islands v. Christensen, 673 F.2d 713, 715 (3d Cir. 1982) (collecting cases). The Virgin Islands Supreme Court's decision is therefore "final" for purposes of certiorari jurisdiction, and § 1613 gives us authority to review it.
The parties have raised the possibility that 18 U.S.C. § 3731 also serves as a basis for our jurisdiction. That section provides, in pertinent part, that "[a]n appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence . . . , not made after the defendant has been put in jeopardy." We treat the Government of the Virgin Islands as a prosecutorial arm of the federal government, so § 3731 permits it to take certain interlocutory appeals. Christensen, 673 F.3d at 716. Until 2004, the Appellate Division of the District Court of the Virgin Islands heard appeals from the Virgin Islands Superior Court; the Appellate Division's decisions were then appealable to this court. See Gov't of the Virgin Islands v. Rivera, 333 F.3d 143, 145--46 (3d Cir. 2003). Because the Appellate Division was part of the District Court of the Virgin Islands, appeals from its decisions were treated "no differently than appeals taken from any other federal ...