approving an instruction that testimony of a co-conspirator must be weighed with caution
How later courts described this case
- approving an instruction that testimony of a co-conspirator must be weighed with caution
- erratic movements of vessel, coastal shrimping out of season, boat on list of suspected smuggling vessels
- to be constitutional, a section 1581 search must be either a border search or a limited investigatory stop based on reasonable suspicion
- vessel’s erratic movements, coupled with the late hour of the sighting, aroused officers’ suspicions
Written by the judges who cited it.
The opinion
THOMAS A. CLARK, Circuit Judge,
concurring:
I concur that the district court was correct in denying the motion to suppress the seized marijuana.
However, since I get there by a little different route, I wish to express my reasons. The majority opinion holds that the facts are sufficient to support a limited investigatory stop. I think the facts are too thin. At page 433 the opinion states “the constitutionality of the boarding of the Little Hornet turns, however, on one of the following two principles: 1) a border search; or 2) a limited investigatory stop based upon a reasonable suspicion of law violation.” I do not think these principles have to be considered disjunctively.
Most people’s mental processes are not compartmentalized and judges fall into the category of “most people.” Officer Swigert considered the observations attributed to him on pages 434-435 of the opinion, but he also considered that this was a shrimp boat coming into a dock on the Atlantic from points unknown, when coastal shrimping was not in season. While the majority opinion says that this fact alone would not support a border search, with which I agree, I think this fact, when coupled with the facts relied upon by the majority, gave the officers sufficient grounds to board the vessel.
The Supreme Court at its last term decided United States v. Mendenhall, - U.S. -, 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980), in which it approved the combining of a series of totally innocent facts to constitute a drug courier profile. Based upon such a profile, the court sustained an investigatory stop. While the present case does not involve the drug courier profile, it does suggest use of the common admonition that courts “may consider the totality of circumstances” in determining if a given set of facts add to a reasonable conclusion. Facts too narrow to support either an investigatory stop or a border search, when combined can support the stop.
Consequently, it is my view that here it was proper for the officer to consider the nature of the vessel, that it was not the shrimping season, and that a border crossing was certainly possible, and perhaps even probable. Based upon considering these added facts to the facts relied upon by the majority opinion, I have no problem with concurring.