Petition — Whitmire v. United States
Supreme Court brief1980
Ask Donna
What actually matters in this document.
Text
Gupreme Court U. 7
rILeED
in the SEP & 1979
; BOBAK, JR., CLERK
Supreme ac:
of the
United States
OCTOBER TERM, 1978
Mo. ork
NO. ‘q \y = 3 6d
MICHAEL GARY WHITMIRE
DONALD JOHN WILLIAMS,
Petitioners,
US.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
MICHAEL J. ROSEN
E. DAVID ROSEN
ROSEN & ROSEN, P.A.
19 West Flagler Street
Miami, Florida 33130
(305) 377-3736
INDEX
Page
as cawiew dace bcesesccccccens li-v
Opinion Of The Court Below .................0008. 2
ES IN ER OT ee EE 2
I I Goce cacancaccecccsscccccecees 2-3
Constitutional And Statutory Provisions .......... 3-5
I TE eevee env accscsescesees 6
A. Statement Of The Proceedings........... 6-8
| ee 8-9
Reasons For Granting The Writ ................... 9
A. AnImportant Federal Question ......... 9-11
B. Conflict With Supreme Court Opinions 12-15
PR 6 an en 15-17
es ca edecccccces 18
Be a re App. 1
TABLE OF CITATIONS
Page
Adams vs. Williams,
407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612
TRIN nahin badd bicgakepedntp ane Cabapedo hee ss 14
Almeida-Sanchez vs. United States,
413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596
CPTI a is wee ipa 80 p Baaw ea dune senate 6, 9, 10,
12, 13, 16
Carroll vs. United States,
267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543
PN i cis ives verenanpansawunnesns soos 6, 9, 10,
12, 13, 16
Delaware vs. Prouse,
__US. __, 99 S.Ct. 1391, 59 L.Ed.2d 660
(1979) ....cocccvscccccvccccccscvcceccssccccess 14
Dunaway vs. New York,
__US. ___, 99 S.Ct. 2248 (1979) .......-. 9, 14
Katz vs. United States,
389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
CRUE ci Sg sv neseccchecdne ssc peaeycrstevstess 9,13
Mathews vs. Weber, :
423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 487
PROTO nc ackcnscnbats se vevereueseveccantseroese 12
Pennsylvania vs. Mimms,
434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331
ig, Se irre rr errr. Veo ei Oe 14
TABLE OF CITATIONS (Continued)
Page
Rakas vs. United States,
___U.S. ___, 99 S.Ct. 421, 58 L.Ed.2d 387
SINE ie cas Vaca Aa Ted be ae Od RAR ata ENR 13
Terry vs. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
BRAS eae ee py fa ey Wen a 13, 14
United States vs. Brignoni-Ponce,
422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607
Sos ca Moraes bc cen ees ekaes cache 14
United States vs. Chadwick,
433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) 13
United States vs. Diamond,
471 F.2d 771 (9 Cir.), cert. denied 412 U.S. 932
CREME Sa na ere kek eee kel ba webieak ba 15
United States vs. Martinez-Fuerte,
428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116
CRM ANd hav eeess ReUeT bee cud ssE SE GeeRe ences 14
United States vs. Raddatz,
Be Eas eee eed twesecbans 9, 16, 17
United States vs. Ramsey,
431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617
CROWD cc hc knsnceu en dew caVsn phiNbs eee Raees | 15, 16
ili
TABLE OF CITATIONS (Continued)
Page
United States vs. Rivera,
505 F.2d 1096.(5 Cir. 1979) .......ccccccccesees 15
United States vs. Solmes,
597 F.2d 1370.8 Cie. 1975) 5c... cecccvewcccyes 9, 16
United States vs. Tilton,
534 F.9d 1963 (0 Cir. 1976) <6 oo ons cc des ceccans 9, 16
Warden vs. Hayden,
387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782... 18
Wingo vs. Wedding,
418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879
tS enrere pee Sere er 12
Authorities Cited
Article III, United States Constitution ............ 11
Amendment IV, United States Constitution ....... 3
Amendment V, United States Constitution........ 3
Rule 19(1)(b), Rules of the Supreme Court ........ 9
Rule 22(2), Rules of the Supreme Court ........... 2
* Title 19, United States Code §482 ...... AEA 2 15
iv
TABLE OF CITATIONS (Continued)
Page
Title 19, United States Code §1581(a) ........... 2, 4, 6
11, 16
Title 21, United States Code §841(a)(1) ........... ,
Title 21, United States Code §952(a) .............. 7
Title 21, United States Code §960(a)(1) ........... 7
Title 28, United States Code §636(b) ........... 3, 4, 6,
ty:%
Title 28, United States Code §1254(1) ............. 2
in the
Supreme Court
of the
United States
OCTOBER TERM, 1978
NO.
MICHAEL GARY WHITMIRE
DONALD JOHN WILLIAMS,
Petitioners,
US.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
The Petitioners, MICHAEL GARY WHITMIRE
and DONALD JOHN WILLIAMS, by their undersigned
counsel, respectfully pray that a Writ of Certiorari issue
to review the judgment and opinion of the United States
Court Of Appeals For The Fifth Circuit entered in this
proceeding on June 4, 1979.
OPINION OF THE COURT BELOW
The opinion of the Court of Appeals is reported at
595 F.2d 1303. A copy of the Opinion is appended to this
Petition as Appendix A. No opinion was rendered by the
District Court for the Southern District of Florida.
JURISDICTION
The Judgment of the Court of Appeals affirming the
Judgment of the United States District Court was en-
tered on June 4, 1979. The Petition For Rehearing En
Banc was denied on August 6, 1979. This Petition is
timely filed. See Rule 22(2), Rules of the Supreme
Court. The jurisdiction of this Court is invoked pursuant
to the provisions of Title 28 United States Code
§1254(1).
QUESTIONS PRESENTED
I.
WHETHER A PERSON TRAVELING ON A
BOAT IN AN INLET WATERWAY WITH
NO KNOWN CONNECTION TO THE BOR.
DER IS PROPERLY SUBJECTED TO A TI-
TLE 19 UNITED STATES CODE §1581(a)
CUSTOMS STOP, INSPECTION AND
BOARDING BASED ON A LESSENED
FOURTH AMENDMENT STANDARD OF
REASONABLE SUSPICION THAN
2
PROBABLE CAUSE ONLY BECAUSE HEIS
TRAVELING BY WAY OF VESSEL
RATHER THAN AUTOMOBILE?
Il.
WHETHER THE DISTRICT COURT’S
REFERENCE OF PETITIONERS’ PRE-
TRIAL MOTION TO SUPPRESS TO A
MAGISTRATE, PURSUANT TO TITLE 28
UNITED STATES CODE §636(b), FOR AN
EVIDENTIARY HEARING AND RECOM-
MENDATION, VIOLATES THE DUE
PROCESS CLAUSE OF THE FIFTH
AMENDMENT, EITHER PER SE, OR
WHEN THE CREDIBILITY OF A WITNESS
IS AN ISSUE?
CONSTITUTIONAL AND STATUTORY
PROVISIONS
AMENDMENT IV, CONSTITUTION OF
THE UNITED STATES:
“The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, .. .”
AMENDMENT V, CONSTITUTION OF
THE UNITED STATES:
“No person shall be ... deprived of life,
liberty, or property, without due process of law;
8 a aa a
UNITED STATES CODE, TITLE 19,
§1581(a). Boarding vessels
Any officer of the customs may at any time
go on board of any vessel or vehicle at any place
in the United States or within the customs
waters or, as he may be authorized, within a
customs-enforcement area established under
sections 1701 and 1703-1711 of this title, or at
any other authorized place, without as well as
within his district, and examine the manifest
and other documents and papers and examine,
inspect, and search the vessel or vehicle and
every part thereof and any person, trunk,
package, or cargo on board, and to this end
may hail and stop such vessel or vehicle, and
use all necessary force to compel compliance.
UNITED STATES CODE, TITLE 28,
§636(b)(1) Jurisdiction, powers and temporary
assignment
Notwithstanding any provision of law to the
contrary —
(A) a judge may designate a magistrate to
hear and determine any pretrial matter
pending before the court, except a motion for
injunctive relief, for judgment on the
pleadings, for summary judgment, to dismiss
or quash an indictment or information made by
the defendant, to suppress evidence in a
criminal case, to dismiss or to permit main-
tenance of a class action, to dismiss for failure
to state a claim upon which relief can be
4
TAR RR Oe RT ee
granted, and to involuntarily dismiss an ac-
tion. A judge of the court may reconsider any
pretrial matter under this subparagraph (A)
where it has been shown that the magistrate’s
order is clearly erroneous or contrary to law.
(B) a judge may also designate a
magistrate to conduct hearings, including
evidentiary hearings, and to submit to a judge
of the court proposed findings of fact and
recommendations for the disposition, by a
judge of the court, of any motion excepted in
subparagraph (A), of applications for posttrial
relief made by individuals convicted of
c-iminal offenses and of prisoner petitions
challenging conditions of confinement.
(C) the magistrate shall file his proposed
findings and recomimendations under sub-
paragraph (B) with the court and a copy shall
forthwith be mailed to all parties. Within ten
days after being served with a copy, any party
may serve and file written objections to such
proposed finauings and recommendations as
provided by rules of court. A judge of the court
shall make a de novo determination of those
portions of the report or specified proposed
findings or recommendations to which objec-
tion is made. A judge of the court may accept,
reject, or modify, in whole or in part, the
findings or recommendations made by the
magistrate. The judge may also receive further
evidence or recommit the matter to the
magistrate with instructions.
Lo A]
STATEMENT OF THE CASE
This Petition seeks review of two holdings. The first
is that a pleasure craft, with no known relationship to
the border, traveling within this Country’s navigable
waterways, may be detained, inspected and boarded by
customs officials, pursuant to Title 19 United States
Code §1581(a), if there exists reasonable suspicion of a
customs violation. In so holding, the Court declares
vessels different than automobiles for Fourth Amend-
ment purposes. This is based on the “unique maritime
context” of vessels and acts as the rationale for dis-
tinguishing Carroll vs. United States, 207 U.S. 132, 45
S.Ct. 280, 69 L.Ed. 543 (1924), and Almeida-Sanchez vs.
United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d
596 (1973). The Court employs an elaborate balancing
test to reach this determination.
The second holding is that the referral of
Petitioners’ pretrial motion to suppress a warrantless
search and seizure to a Magistrate for an evidentiary
hearing, pursuant to Title 28 United States Code
§636(b)(1)(B) is compatible with due process of law.
This is predicated on the discretionary power of the Dis-
trict Court, found in §636(b)(1), “to adopt or reject the
magistrate’s recommendation and personally to hear
any evidence it finds necessary to deciding the issue’.
(595 F.2d at 1306, n.1)
A. STATEMENT OF THE PROCEEDINGS
In April, 1977, Petitioners were convicted in a bench
trial of possession of marijuana with intent to distribute,
in violation of Title 21 United States Code §841(a)(1).!
Whitmire was also convicted of importation of mari-
juana, in violation of Title 21 United States Code
§§952(a),? 960(a)(1)3. Williams was acquitted of that
charge.
Prior to their trial, Petitioners filed a motion to sup-
press illegally seized evidence. The District Court, pur-
suant to Title 28 United States Code §636(b), sua
sponte, referred the motion to a magistrate to conduct
an evidentiary hearing, and to make findings of facts
and recommendations on its disposition. Petitioners
filed a timely objection and memorandum of law to this
procedure. Pursuant to §636(b)(1), Petitioners also filed
objections to some of the magistrate’s findings of fact
and conclusions of law. The District Court overruled the
objection directed at the constitutionality of the
magistrate referral and adopted the magistrate’s report
and recommendation.
‘Prohibited acts A — Unlawful acts (in pertinent part).
Except as authorized by this subchapter, it shall be un-
lawful for any person knowingly or intentionally — to
manufacture, distribute, or dispense, or possess with in-
tent to manufacture, distribute, or dispense, a controlled
substance.
*Importation of controlled substances (in pertinent part).
(a) It shall be unlawful to import into the customs
territory of the United States from any place outside
thereof (but within the United States), or to import into
the United States from any place outside thereof, any con-
trolled substance.
‘Prohibited acts A — Unlawful acts (in pertinent part).
(a) Any person who —
(1)... knowingly or intentionally imports or exports a
controlled substance, ... shall be punished .. .
Each Petitioner was sentenced to a period of incar-
ceration and posted appellate bond.
An appeal was timely filed with the Fifth Circuit
Court of Appeals. The panel’s opinion was rendered on
June 4, 1979. The Petition Suggesting Rehearing En
Banc was denied on August 6, 1979. This Petition for
Writ of Certiorari is timely filed.
B. STATEMENT OF FACTS
Petitioners were observed on a twenty-five foot
vessel by customs marine patrol at 8:00 A.M., December
23, 1976. The vessel, operated by Whitmire, was first ob-
served in an inlet waterway connecting the ocean to an
inland waterway heading away from the ocean. The boat
was traveling at an estimated 40-45 miles per hour. The
weather was overcast, cold, with a chop in the water.
The vessel produced a heavy wake, indicating to the
customs officers that it was carrying something heavy.
The officers decided to stop the vessel, but were un-
able to reach the boat until after it was docked behind
Whitmire’s house and Petitioners disembarked. As the
Petitioners were about to enter the house, the officers or-
dered them to stop. The officers noticed that the boat
had encrusted salt crystals and that both Petitioners
were wearing sweatshirts with “Bimini’’ printed on the
chest.
Pursuant to request, Whitmire produced an un-
signed boat registration in the name of Excellent Car
Company. Williams could produce no identification.
CPO Kenny boarded the vessel in its center cockpit area
and immediately smelled marijuana. Upon opening the
hatch, Kenny discovered over a thousand pounds of
marijuana. Upon Whitmire’s arrest, he was found to
possess an American Express receipt reflecting his
purchase of fuel in Bimini the previous day.
Of the thousands of similar boats in the South
Florida area, there were approximately twenty-five suc-
cessful interdictions of this type that year. (Motion To
Suppress Transcript, pp. 31, 26)
REASONS FOR GRANTING THE WRIT
The holdings of this case concern important ques-
tions of federal criminal law, which have not been, but
should be, settled by this Court‘; and the Opinion is in
direct conflict with applicable Supreme Court opinions:
(ISSUE I) Carroll vs. United States, supra, Almeida-
Sanchez vs. United States, supra, Katz vs. United
States, 389 U.S. 347, 88 S.Ct. 507 19 L.Ed.2d 576 (1967);
Dunaway vs. New York, ___. U.S. ___, 99 S.Ct. 2248
(1979); and opinions of other courts of appeals.> (ISSUE
I) United States vs. Tilton, 534 F.2d 1363 (9 Cir. 1976);
United States vs. Solmes, 527 F.2d 1370 (9 Cir. 1975);
(ISSUE II) United States vs. Raddatz, 592 F.2d 976
(1979).
A. AN IMPORTANT FEDERAL QUESTION
The first issue is whether the search, based purely
on statutory authority, is violative of the Constitution.
As stated in Almeida-Sanchez, supra, “... no Act of
Congress can authorize a violation of the Constitution.”
‘See Rule 19(1)(b), Rules of the United States Supreme Court.
Id.
413 U.S., at 272, 93 S.Ct. 2539, 37 L.Ed.2d, at 602. One
of the fundamental principles in criminal law is the
freedom of the individual to travel within this country’s
borders without interference. As stated in the oft-quoted
ovinion of Carroll vs. United States, 267 U.S. 153-154,
45 S.Ct. at 285:
“It would be intolerable and unreasonable if a
prohibition agent were authorized to stop every
automobile on the chance of finding liquor, and
thus subject all persons lawfully using the
highways to the inconvenience and indignity of
such a search. Travelers may be so stopped in
crossing an international boundary because of
national self-protection reasonably requiring
one entering the country to identify himself as
entitled to come in, and his belongings as ef-
fects which may be lawfully brought in. But
those lawfully within the country, entitled to
use the public highways, have a right to free
passage without interruption or search unless
there is known to a competent official,
authorized to search, probable cause for believ-
ing that their vehicles are carrying contraband
or illegal merchandise.”
This philosophy has endured the test of time, as well the
pressure of the expedience. See Almeida-Sanchez us.
United States, supra. When an opinion by a federal ap-
pellate court clearly rejects this premise solely on
statutory authority, the importance of the issue becomes
clear.
10
The Whitmire holding is based on the premise that
those traveling within the country on a vessel are not en-
titled to the same (but lesser) Fourth Amendment
protections than those in automobiles due to the “‘uni-
que maritime context’’ involved. Reliance is placed
solely on Title 19 United States Code §1581(a) for this
determination. (There was no search warrant or con-
sent.) This novel exception to the Fourth Amendment,
deemed a “nautical exception” in the concurring and
dissenting opinion of Judge Rubin,® affects literally
thousands of innocent travelers.
The second issue concerns the propriety of a federal
magistrate conducting pre-trial evidentiary hearings in
criminal cases. This constitutional attack is directed at
§636(b), which permits a judge to rule on a motion to
suppress based on a magictrate’s recommendation,
when the judge has not observed or assessed a witness’
demeanor or credibility.’
The propriety of this procedure is of obvious impor-
tance, both for due process and judicial economy pur-
poses.
6595 F.2d at 1319.
‘It should be clear as stated below, that Petitioners are not con-
testing the constitutionality of §636, as violating Article III of the
Constitution.
11
B. CONFLICT WITH SUPREME COURT
OPINIONS!
In Almeida-Sanchez vs. United States, supra, this
Court found the statute authorizing warrantless border
patrol stops and searches of automobiles within a
reasonable distance from the border to be violative of
the Fourth Amendment. The Court held that the Fourth
Amendment requires either probable cause or consent.
Relying on Carroll, the Court emphasized the con-
stitutional sanctity of freedom of travel within the
country.
By reducing the constitutional standard to
reasonable suspicion, the Whitmire panel recognizes the
clear conflict with Carroll and Almeida-Sanchez; and
declares vessels different than automobiles for Fourth
Amendment purposes:
“Because, however, the pronouncement as to
boats was not necessary to that decision and
because the facts that were deemed to con-
stitute probable cause in that «ase would
probably not support today’s mcre lenient
reasonable suspicion standard, Carroll should
not preclude our fresh examination and balanc-
ing of the interests involved in customs stops,
inspections and searches of vessels in our inter-
coastal and coastal waters.”’ (See n. 11 of
opinion) 595 F.2d at 1310-1311.
‘ISSUE II is inapplicable to this section; that is, Mathews vs.
Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 487 (1976), and
Wingo us. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879
(1974), do not appear to resolve this issue.
12
‘“We think it proper, however, to resist the urge
to impose uncritically on boat searches the set
of standards governing auto searches on our in-
ternal highways.” 595 F.2d at 1312.
Yet, Carroll’s probable cause requirement expressly
refers to “automobile or other vehicle”. 267 U.S. at 153,
45 S.Ct. at 285. Almost fifty years later, Almeida-
Sanchez preserves this constitutional protection by
stating: “Automobile or no automobile, there must be
probable cause for the search.” (Footnote Omitted) 413
U.S. at 269. This doctrine has never been applied ex-
clusively to automobiles, until Whitmire.
Further, this approach conflicts with the tenet that
“the Fourth Amendment protects people, not places.”’
Katz vs. United States, 389 U.S. at 351, 88 S.Ct. at 511.
Whitmire returns Fourth Amendment jurisprudence to
the concept of property law rather than an individual’s
expectation of privacy. See generally, Rakas vs. Illinois,
US. , 99 S.Ct. 421, 58 L.Ed.2d 387 (1978):
United States vs. Chadwick, 433 U.S. I, 11, 97 8.Ct.
2476, 2482-2483, 53 L.Ed.2d 538 (1977); Katz vs. United
States, supra, Warden vs. Hayden, 387 U.S. 294, 87
S.Ct. 1642, 18 L.Ed.2d 782. Whether stopped in an
automobile, vessel, plane or other mode of private
transportation, it is submitted that one’s legitimate
Fourth Amendment expectation of privacy is and should
be equal.
The standard of reasonable suspicion, as applied to
non-border stops, has been approved where the seizure”
“It must be recognized that whenever a police officer accosts
an individual and restrains his freedom to walk away, he has
‘seized’ that person.” Terry vs. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868,
1877, 20 L.Ed.2d 889 (1968).
13
is brief, minimal and the legitimate government in-
terests outweigh the individual’s Fourth Amendment
interests.'’ But where the seizure is anything more than
a brief stop to determine the proper status of the
individual,'' the ‘‘general rule’ of probable cause is re-
quired. That is, the balancing test is constitutionally
impermissible. Dunaway vs. New York, supra, citing
United States vs. Brignoni-Ponce for the principle that,
‘., . any further detention or search must be based on
consent or probable cause’. 422 U.S. 873, 881-882, 95
S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975).
Petitioners were not stopped until after they docked
the vessel and were about to enter Whitmire’s house. Af-
ter brief identification and questioning, during which
time Petitioners were not free to leave, !? the customs of-
ficers boarded the vessel. The panel held that it was only
after the vessel was boarded that probable cause (from
“Terry vs. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968); Adams us. Williams, 407 U.S. 143, 92 S.Ct.1921, 32 L.Ed.2d
612 (1972); Pennsylvania vs. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54
L.Ed.2d 331 (1977); United States vs. Brignoni-Ponce, infra;
United States vs. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49
L.Ed.2d 1116 (1976); Delaware us. Prouse, U.S. , 99 S.Ct.
1391, 59 L.Ed.2d 660 (1979).
''Kg. citizenship, immigration status, and further explanation
of suspicious circumstances, United States vs. Brignoni-Ponce,
supra; driver’s license and registration of an automobile, Delaware
us. Prouse, supra.
"Motion To Suppress Evidentiary Hearing, p. 33.
14
the odor of marijuana) developed.'* Under Dunaway
and its related cases, probable cause was necessary prior
to boarding the vessel. Thus, the elaborate balancing
features employed in Whitmire also conflicts with
Dunaway. 4
C. CONFLICT IN CIRCUITS
ISSUE I
Section 1581 has no express quidelines as to the
level of suspicion necessary to permit a customs inter-
d.ction. Cf. Title 19, United States Code §482. The law
is clear, however, that customs officers are possessed
with limited jurisdiction; concerning importation of
aliens and contraband, United States vs. Rivera, 595
F.2d 1095, 1097-1098 (5 Cir. 1979); United States vs.
Diamond, 471 F.2d 771 (9 Cir.), cert. denied, 412 U.S.
932 (1973). It is equally clear that this jurisdictional
limitation requires some nexus to the border. See United
States vs. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52
L.Ed.2d 617 (1979).
“The principle of Brignoni-Ponce was rejected by the
Whitmire majority as a basis to support the search, because the
stop of Petitioners occurred after they disembarked the vessel. Con-
trary to the Whitmire concurring opinion, there is no support in
Brignoni-Ponce for the boarding of the vessel, after the brief deten-
tion of petitioners on land did not give rise to probable cause.
“It is alternatively submitted that the underlying logic utilized
to develop the balancing factors, “. . . that smugglers form the
main class of sailors in whom the approach of (customs or coast
guard) provokes anxiety”, 595 F.2d at 1313, is faulty and un-
constitutional. As is stated in the concurring opinion, this logic “‘is
at the root of all police state rationalization”. 595 F.2d at 1319.
15
In United States vs. Tilton, 534 F.2d 1363, 1366
(1976), the Ninth Circuit held that a search under §1581
requires ‘“‘articulable facts to support a reasonably cer-
tain conclusion by the customs officers that a vessel has
crossed the border and entered our territorial waters’”’.
Thus, the test is not an actual border crossing, but the
officer’s reasonable certainty of said crossing. This
holding was based on the principles espoused in Carroll
and Almeida-Sanchez that border crossings reduce the
level of suspicion mandated by the Constitution. CF.
United States. vs. Ramsey, supra. See also, United
States vs. Solmes, 527 F.2d 1370 (9 Cir. 1975). Tilton
virtually assumed that §1581 requires a nexus to the
border.
Whitmire, on the other hand, finds that §1581 re-
quires neither a border crossing nor a reasonable belief
of a border crossing, rather, reasonable suspicion of a
customs violation. It is submitted that it is illogical and
improper for §1581 to require suspicion of a customs law
violation without equal proof (or suspicion) connecting
the violators to the border or its functional equivalent.
Thus, a conflict of circuits exists as to whether
§1581 requires proof or belief of a border crossing; and if
so, the concomitant !evel of suspicion required by the
Fourth Amendment.
ISSUE II
In United States vs. Raddatz, 592 F.2d 976 (7 Cir.
1979), Government’s Petition for Writ of Certiorari
pending, the Seventh Circuit held that due process re-
quires the trier of fact (that is, the court that observes
the demeanor and credibility of the witness) to be the
16
same court that rules on a pre-trial motion to suppress.
This is precisely Petitioners’ position in this matter.
Responding to this argument, Whitmire held that
“the discretionary power of the district court to
adopt or reject the magistrate’s recommenda-
tion and personally to hear any evidence it
finds necessary to deciding the issue ade-
quately protects a defendant’s due process
rights.” 595 F.2d, at 1306, n.1.
Raddatz, however, limited its holding to those
situations “where credibility is crucial to the outcome”
of the criminal case. In Raddatz, the motion to suppress
was directed at the Fifth Amendment issue of the volun-
tariness of a statement. Raddatz testified that his state-
ment and cooperation were based on a promise of dis-
missal. Thus, the believability of the witnesses was
crucial to the outcome of the case.
In the present case, the motion to suppress focused
on the legality of the search, a Fourth Amendment issue.
While there were no direct confrontation on facts, the
cross-examination of the customs officer clearly put his
credibility in issue. Notwithstanding this, however,
Whitmire found this “credibility” limitation “an overly
restrictive view of the magistrate’s role”. At n.l.
Thus, the conflict can be viewed from two perspec-
tives: whether the magistrate’s statutory authority is
valid or invalid per se; or valid only where credibility is
not ‘“‘central to the determination of a material fact’.
United States vs. Raddatz, 592 F.2d at 983.
17
CONCLUSION
' Due to the uniqueness of the search and seizure
issue, its substantial contradiction with prior well-
established principles, and the importance of both the
search and seizure and magistrate issues, it is
respectfully submitted that a Writ of Certiorari be
issued to review the judgment and opinion of the Fifth
Circuit.
Respectfully Submitted,
MICHAEL J. ROSEN Ps
B, DAVID ROSEN Appendix
ROSEN & ROSEN, P.A.
19 West Flagler Street
Miami, Florida 33130
(305) 377-3736
September 5, 1979
18
APPENDIX “A”
UNITED STATES of America,
Plaintiff-Appellee,
v.
Michael Gary WHITMIRE
and
Donald John Williams,
Defendants-Appellants.
No. 77-5359.
United States Court of Appeals,
Fifth Circuit.
June 4, 1979.
Defendants were convicted in the United States
District Court for the Southern District of Florida, at
Miami, C. Clyde Atkins, Chief Judge, of possession of
marijuana with intent to distribute, and one of them
was also convicted of importation of marijuana, and
they appealed. The Court of Appeals, Gee, Circuit
Judge, held that: (1) defendants’ right to procedural due
process were not violated by referral to magistrate of
suppression motion; (2) where customs officers observed
speeding pleasure boat entering intercoastal waterway
and flouting traffic rules and observed other facts which
led to reasonable suspicion of customs violation, and
where they pursued the boat and, after it had docked,
documents check with the occupants on shore was un-
satisfactory, it was reasonable in light of the strong
App. 1
suspicions then existing of customs violation and
perhaps of theft to detain the men pending a further
brief inspection aboard, even absent known border
crossing facts, and (3) evidence of one defendant’s
presence on board boat containing 1,500 pounds of mari-
juana, together with other facts, was sufficient to
sustain conviction for possession of marijuana with in-
tent to distribute.
Affirmed.
595 FEDERAL REPORTER, 2d SERIES
Alvin B. Rubin, Circuit Judge, filed a concurring
opinion.
1. Constitutional Law 266(1)
Defendants’ rights to procedural due process were
not violated by referral of suppression motion to
magistrate, despite contention that due process requires
trier of fact actually to hear relevant testiony and assess
witness credibility; discretionary power of district court
to adopt or reject magistrate’s recommendation and per-
sonally hear any evidence found necessary to deciding
issue adequately protects a defendant’s due process
rights. 28 U.S.C.A. §636(b)(1), (b)(1)(A, B); U.S.C.A.
Const. Amend. 5
2. Customs Duties 126
Traditional border search concepts did not justify
search of boat where it was first sighted within the
coastline and, though it in fact came from international
waters, officers initially had no ground for believing it
had. U.S.C.A. Const. Amend. 4.
App. 2
3. Customs Duties 126
Customs officers’ observations of speeding boat en-
tering intercoastal waterway and riding in a manner in-
dicating that there was something heavy in the bow
provided sufficient grounds for limited investigatory in-
trusion by pursuing the vessel and approaching occu-
pants for identification and registration documents, but
even where the occupants were unable to produce proper
documents when approached on land after the boat had
docked, such facts did not amount to probable cause
necessary to justify a search of the vessel. U.S.C.A.
Const. Amend. 4.
4. Customs Duties 126
Where customs officers observed speeding pleasure
boat entering intercoastal waterway and flouting traffic
rules and observed other facts which led to reasonable
suspicion of customs violation, and where they pursued
the boat and, after it had docked, documents check with
the occupants on shore was unsatisfactory, it was
reasonable in light of the strong suspicions then existing
of customs violation and perhaps of theft to detain the
men pending a further belief inspection aboard, even
absent known border crossing facts. U.S.C.A. Const.
Amend. 4; Tariff Act of 1930, §581, 19 U.S.C.A. §1581.
5. Drugs and Narcotics 123
Evidence of defendant’s presence on board boat
containing 1,500 pounds of marijuana, together with
other facts, was sufficient to sustain conviction for
possession of marijuana with intent to distribute. Com-
prehensive Drug Abuse Prevention and Control Act of
1970, §401(a)(1), 21 U.S.C.A. §841(a)(1).
App. 3
Michael J. Rosen, Miami, Fla., for defendants-
appellants.
Jack V. Eskenazi, U.S. Atty., David F. Geneson,
Jamie L. Whitten, Asst. U.S. Attys., Miami, Fla. for
plaintiff-appellee.
Appeals from the United States District court for
the Southern District of Florida.
Before COLEMAN, GEE and RUBIN, Circuit
Judges.
GEE, Circuit Judge:
A district court, sitting without a jury, convicted
appellants Michael Whitmire and Donald Williams of
possession of marijuana with intent to distribute, a
violation of 21 U.S.C. §841(a)(1). Whitmire was also
-convicted of importation of marijuana in violation of 21
U.S.C. §§952(a), 960(a)(1); Williams was acquitted of
that charge. On appeal they argue that due process was
violated by the trial court’s referral of their motion to
suppress evidence to a magistrate under 28 U.S.C.
§636(b)(1)(B). They also challenge the warrantless
search that produced the main evidence used against
them. Finally, Williams challenges the sufficiency of the
evidence to support his conviction of possession with in-
tent to distribute. Disagreeing with each of appellants’
contentions, we affirm their convictions.
I. Referral to Magistrate of Suppression Motion.
[1] The Ninth Circuit has held that a district
court may not enter an order contrary to a magistrate’s
App. 4
recommendation on a referred evidentiary matter
without itself holding an evidentiary hearing. United
States v. Bergera, 512 F.2d 391 (9th Cir. 1975). Ap-
pellants would have us not only espouse that position
but extend it to hold that a district court cannot even
adopt a magistrate’s recommendation without holding a
duplicate hearing. They argue that due process of law
requires the trier of fact actually to hear the relevant
testimony and assess witness credibility. Whatever the
merits of such a rule in instances where a district court
chooses to ignore a magistrate’s recommendations, a
question we need not reach, it is not applicable here.
The motion to suppress was referred initially to a
magistrate, who recommended that it be denied. After
giving counsel an opportunity to object to the
magistrate’s conclusions and reviewing the record, the
district judge adopted those findings and recommenda-
tions. The magistrate had a first-hand look at the wit-
nesses and appraised their credibility. The trial judge
retained the power to hear additional testimony or the
same testimony all over again if he decided that would
be beneficial in determining the motion. As the
Supreme Court has said in a related but non-
constitutional context:
The magistrate may do no more than propose a
recommendation, and neither §636(b) [of the
United States Magistrates Act, 28 U.S.C.
§§631-639] nor the General Order gives such
recommendation presumptive weight. The dis-
trict judge is free to follow it or wholly to ignore
it, or, if he is not satisfied, he may conduct the
review in whole or in part anew. The authority
— and the responsibility — to make an in-
formed, final determination, we emphasize,
remains with the judge.
App. 5
Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549,
554, 46 L.Ed.2d 483 (1976).
In the 1976 amendments of the Magistrates Act,
Congress enumerated some additional duties that may
be assigned to magistrates and clarified, along the lines
suggested in Weber, the weight a district court may give
to a magistrate’s various findings and determinations.
Subsections 636(b)(1)(A) and (B) read jointly now
specificially provide that a judge may designate a
magistrate to conduct an evidentiary hearing on a mo-
tion to suppress evidence in a criminal case and to
recommend a disposition of the motion. Subsection
636(b)(1) further provides:
Within ten days after being served with a copy,
any party may serve and file written objections
to such proposed findings and recommenda-
tions as provided by rules of court. A judge of
the court shall make a de novo determination
of those portions of the report or specified
proposed findings or recommendations to
which objection is made. A judge of the court
may accept, reject, or modify, in whole or in
part, the findings or recommendations made
by the magistrate. The judge may also receive
further evidence or recommit the matter to the
magistrate with instructions.
These procedures provide sufficient safeguards
both to ensure the integrity of the factfinding
process and retention by the judge of final responsibility
for ruling on the motion. Indeed, the factfinding process
may be improved by the referral practice. In making a
final determination, the district court has the benefit of
App. 6
a carefully developed record, a magistrate’s thoughtful
consideration of the issues, and argument of counsel
regarding specifics not agreeable to the parties. See
Weber, 423 U.S. at 271, 96 S.Ct. 549. We conclude that
appellants’ rights to procedural due process have not
been violated. !
‘Despite some favorable language therein, Wingo v. Wedding,
418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974), does not control
this case. In that opinion the Supreme Court decided that, purely
as a matter of construing the habeas corpus provisions, referral to a
magistrate, coupled with later judicial review of the record, would
not satisfy the statutory requirement that federal judges conduct
habeas evidentiary hearings.
Neither does our opinion in McKinney v. Parsons, 488 F.2d 452
(5th Cir. 1974), control. That case is distinguishable because the
trial judge failed to personally inspect the allegedly obscene
material — a task uniquely his under first amendment doctrine.
See Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498
(1971); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13
L.Ed.2d 649 (1965).
We are aware that our holding differs with that of the Seventh
Circuit in United States v. Raddatz, 592 F.2d 976 (7th Cir. 1979).
The court there held that due process requires a district judge not
merely to review a written record but to rehear all testimonial
evidence in any criminal case where “‘credibility evidence is central
to the determination of a material issue of fact.’’ We think this con-
clusion an overly restrictive view of the magistrate’s role. In our
view, the discretionary power of the district court to adopt or to re-
ject the magistrate’s recommendation and personally to hear any
evidence it finds necessary to deciding the issue adequately protects
a defendant’s due process rights.
App. 7
Il. Warrantless Search of Boat.
Around 8:00 a.m. on December 23, 1976, two
customs officers were on marine patrol in a Dade
County, Florida, intercoastal waterway. They observed
a 25-foot Nova boat speeding at an estimated 40-45
miles per hour through Baker’s Haulover Cut, an inlet
connecting the ocean to the inland waterway. The boat
was coming from the ocean side but was already inside
the shoreline when the officers first sighted it. The day
was unpleasant for boating: it was overcast, cold, windy,
and the water in the cut was choppy. The speeding boat
was producing a heavy wake. Each time it came down it
threw up a large bow spray, higher than the boat top. To
these experienced officers this indicated that there was
something heavy in the boat’s bow. They later testified
that in the past year there had been about 25 similar
cases of boats that size, “riding heavy in the bow, throw-
ing excessive bow wake,” found loaded with marijuana.
They observed two males aboard, and no fishing gear
was visible. Considering all these facts in the cloudy
light of the inclement day, the officers decided to stop
the boat to investigate further.
Their boat, however, was too slow to catch the
Nova, which turned north into the inland waterway and
continued on at high speeds past a customs inspection
station and through two “no wake” areas, a most
egregious nautical sin. The officers followed and finally
closed with the boat as it was being docked on a canal
behind Whitmire’s house. At this closer range the of-
ficers saw that the boat was encrusted with salt crystals
such as might have formed during an extended ocean
voyage. They also noticed that both Whitmire and
Williams were wearing brand new orange sweatshirts
with “BIMINI” printed across the chest.
App. 8
Appellants had left their boat and were walking
toward Whitmire’s back door when the officers called to
them, requesting to see their identification and registra-
tion papers. Whitmire helped the officers dock and then
produced his identification and an unsigned boat
registration made out to the Excellent Car Company;
Williams could produce no identification. Thinking the
boat perhaps stolen and still suspecting that contraband
was aboard, one officer boarded the Nova to investigate
further while the other watched the two men. As soon as
the officer stepped down into the cockpit area in the cen-
ter of the boat he smelled the odor characteristically
referred to in these prosecutions, the “overpowering
aroma of marijuana.”’ Opening the hatch, he saw over a
thousand pounds of baled marijuana, the evidence ap-
pellants seek to suppress on fourth amendment grounds.
The officers arrested the men and thereafter found an
American Express receipt in Whitmire’s wallet in-
dicating that he had bought a large quantity of fuel in
Bimini the previous day.
Several exceptions to the fourth amendment’s
warrant requirement are potentially applicable here: (1)
border search, with its extended-border and functional-
equivalent-of-the-border glosses; (2) a limited in-
vestigatory stop upon presence of reasonable suspicion
of law violation under United States v. Brignoni-Ponce,
422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); (3)
pure statutory authority — 19 U.S.C. §1581(a) — found
independently reasonable at least as to some searches on
water under fourth amendment analysis because of the
unique character and history of law enforcement on our
country’s seaways. See United States v. Freeman, 579
F.2d 942, 946-48 (5th Cir. 1978). There are problems
with each of these analyses, however.
App. 9
[2] The instant facts do not fit a border search
analysis neatly, since we have consistently required
some degree of probability that the vehicle/vessel has
crossed the border.” In water cases, the true border is an
imaginary line three miles offshore. Though we have not
required the coast guard or customs officers to observe
*The standard has been variously stated from time to time in
this circuit. Before, and to some extent after, Almeida-Sanchez v.
United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973),
we required reasonable suspicion of a customs violation and/or a
“nexus” to the border for extended border searches, those occurring
other than immediately at the border. The required nexus was
present when officers formed a reasonable suspicion that the person
or vehicle searched had itself crossed a border or had been in con-
tact with some other person or thing that had crossed over. United
States v. Hill, 430 F.2d 129 (5th Cir. 1970); United States v.
Lonabaugh, 494 F.2d 1257 (5th Cir. 1973); United States v. Bow-
man, 502 F.2d 1215 (5th Cir. 1974).
In United States v. Brennan, 538 F.2d 711 (5th Cir. 1976), cert.
denied, 429 U.S. 1092, 97 S.Ct. 1104, 51 L.Ed.2d 538 (1977), the first
exhaustive application of Almeida-Sanchez to customs searches, a
panel stated that the border nexus requirement was no longer suf-
ficient justification for a customs search made on the basis of
reasonable suspicion instead of full probable cause. 538 F.2d at 719
n.9. The panel went on to conclude that neither border patrol nor
customs agents may search on less than probable cause at a point
other than the border or its functional equivalent. And to establish
as a functional equivalent of the border a location such as the
Melbourne, Florida, airport, the panel required (1) a “higher degree
of probability that a border crossing took place” and (2) a regularity
to the intrusion, as where, for example, a flight lands at an inter-
national terminal and all passengers know in advance that they will
be subject to an inspection that proceeds for each person in sub-
stantially the same manner. 538 F.2d at 715 16. Each factor was
found lacking in the plane search there reviewed.
App. 10
(Footnote 2 continued)
Though Brennan was couched in broad language, subsequent
panels have declined to follow its full implications. In United States
v. Ivey, 546 F.2d 139 (5th Cir.), cert. denied, 431 U.S. 943, 97 S.Ct.
2662, 53 L.Ed.2d 263 (1977), for instance, a nonregular search of an
airplane was upheld as a border search because a nexus between it
and the border was established with “reasonable certainty” or “‘a
high degree of probability.” See also United States v. Adams, 569
F.2d 924 (5th Cir. 1978), which applied the latter formulations to
validate a nonregular search of a mud-spattered van stopped on a
road closely paralleling the Rio Grande River. The most recent
panel to consider the problem has derived the helpful distinction
between particular places and particular searches in applying the
doctrine of the functional equivalent of the border. The panel also
departed from past articulations regarding individual searches to
hold that such a search is not a valid border search unless it appears
by a preponderance of the evidence, presumably at the time of the
after-the-fact suppression hearing, that a border crossing has oc-’
curred. United States v. Johnson, 588 F.2d 147, 154 (5th Cir. 1979).
After Brennan, the reasonable suspicion test continued un-
abated in the boat search context, either without citation of
Brennan or after distinguishing it as an airplane case. See e.g.,
United States v. Williams, 544 F.2d 807 (5th Cir. 1977) (no
reasonable belief that houseboat fell within customs’ area of con-
cern because no evidence it had entered international waters or con-
tacted other vessels in stich waters). And see United States v.
Fogelman, 586 F.2d 337, 343 (5th Cir. 1978), in which the
reasonable suspicion test was enunciated in upholding the search of
a truck that had been in contact with a vessel known with certainty
to have crosse? the border.
Because the principles from automobile, aircraft and boat
cases do not necessarily translate literally from their discrete fac-
tual settings to the others, we also will apply the reasonable suspi-
cion test, leaving for another day whether, as questioned in the text
at subsequent points, the requirement of a border crossing nexus is
sensible in the boat search context.
App. 11
the vessel as it crosses this imaginary line,* our prece-
dent generally has required that the officials have ar-
ticulable facts from which they may reasonably infer
that the boat has come from international waters.‘ On
our facts, the boat first was sighted inside the coastline
and, for all the customs people actually knew, might
have been on an early morning cruise up and down the
intercoastal canal or outer coastline. It is true that a
boat’s space at a dock is often considered the functional
equivalent of the border® — but this is true only of boats
thought with some degree of probability to have just en-
tered the country. Thus, traditional search concepts do
not justify this particular search since, though the boat
had actually come from Bimini as evidenced by the
American Express receipt, the officers initially had no
grounds for believing it had.
[3] There are also problems with justifying all the
officers’ conduct on Brignoni-Ponce grounds. There the
Supreme Court was faced with a simple investigatory
stop of a vehicle and not a vehicle search such as had
been condemned, absent probable cause or warrant, in
Almeida-Sanchez v. United States, 413 U.S. 266, 93
S.Ct. 2535, 37 L.Ed.2d 596 (1973). The officers’ observa-
tions of the boat produced articulable facts and in-
‘United States v. Ingham, 502 F.2d 1287 (5th Cir. 1974), cert.
denied, 421 U.S. 911, 95 S.Ct. 1566, 43 L.Ed.2d 777 (1975).
‘See cases in note 2, supra.
*The Ninth Circuit in particular has developed the application
to harbors of this concept ratified by the Supreme Court in
Almeida-Sanchez. See, e.g., United States v. Solmes, 527 F.2d 1370
(9th Cir. 1975); United States v. Tilton, 534 F.2d 1363 (9th Cir.
1976). .
App. 12
ferences amounting to reasonable suspicion that a load
of contraband, carried over seas, was aboard. Under the
Brignoni-Ponce test, therefore, they had sufficient
grounds for a limited investigatory intrusion but not for
a search or further detention. The officers were thus well
within Brignoni-Ponce authority in pursuing the vessel
and in approaching Whitmire and Williams for iden-
tification and registration documents. Their suspicions
justifiably increased when the two were unable to
produce proper documents, but, suspicious as these
facts may have been, they did not amount to probable
cause necessary to justify a search of the vessel.
Probable cause did not accrue until after the officer
boarded to search and smelled the marijuana. If the
boarding for purposes of inspection or search is to be up-
held, then, it must be on some other ground, despite the
unfortunate circumstance that, had their boat been fast
enough to have overhauled the Nova before it reached
home and appellants had disembarked, the officers
could have boarded the vessel — and thus smelled the
marijuana — in the proper course of their Brignoni-
Ponce investigation.
We must therefore explore the fourth amendment
principles applicable when customs officers’ right to
board and inspect or search a vessel rests solely on 19
U.S.C. §1581(a). Read literally, that statute grants ex-
tremely broad authority, the full reaches of which some
courts have thought incompatible with fourth amend-
ment protections. It reads as follows:
Any officer of the customs may at any time go
on board of any vessel or vehicle at any place in
the United States or within the customs waters
. and examine the manifest or other docu-
App. 13
ments and papers and examine, inspect, aud
search the vessel or vehicle and every part
thereof and any person, trunk, package, or cargo
on board, and to this end may hail and stop such
vessel or vehicle, and use all necessary force to
compel compliance.
We held in United States v. Freeman, supra, that sec-
tion 1581 provided authority, reasonable under fourth
amendment standards, for discretionary customs
boardings for routine safety and document checks of any
vessel within customs waters, a term defined by 19
U.S.C. §1401(j), as to an American vessel, as “the
waters within four leagues [12 nautical miles] of the
coast of the United States.” Recently, in United States
v. Whitaker, 5)2 F.2d 826 (5th Cir. 1979), we found the
same section 1581 boarding rights — the right to board
even absent reasonable suspicion — as to any vessel
sighted in customs waters and followed into intercoastal
waterways prior to boarding. The instant facts require
us to go further and explore the constitutional limits of
customs officers’ section 1581 powers over a boat in-
itially sighted in intercoastal waters. Because we feel it
appropriate to explore the application to customs
searches of the Supreme Court’s decision in Almeida-
Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535,
37 L,.Ed.2d 596 (1973), in which the Court outlawed rov-
ing searches by the Border Patrol, it is best to begin by
placing boat searches in their historical context in
fourth amendment analysis.
A. Early Doctrine Regarding Boat Searches.
The earliest Supreme Court boat cases did not deal
with fourth amendment issues explicitly. The Court
App. 14
seemed to assume that United States agents might ap-
proach, stop and board American flag and other vessels
on the high seas. The debate, often in a context of who
got the spoils, focused instead on whether there had
been probable cause to seize the vessel and force it into
an American port. See; e.g., Murray v. Schooner
Charming Betsy, 2 Cranch 64, 6 U.S. 64, 2 L.Ed. 208
(1804); The Apollon, 9 Wheat. 362, 22 U.S. 362, 6 L.Ed.
111 (1824). Perhaps the explanation for this approach
lies in the Court’s early focus on property rights as a
principle of fourth amendment exegesis. In Boyd v.
United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746
(1886), for instance, the Court enforced the fourth
amendment by disapproving a court order directing a
man to produce his books and papers to be used as
evidence against him. The majority considered that or-
der the equivalent of an unreasonable search for those
personal effects. Contrasting such personal items with
other objects of search, the Court stated:
The search for and seizure of stolen or for-
feited goods, or goods liable to duties and con-
cealed to avoid the payment thereof, are totally
different things from a search for and seizure of
a man’s private books and papers for the pur-
pose of obtaining information therein con-
tained, or of using them as evidence against
him. The two things differ toto coelo. In the one
case, the government is entitled to the posses-
sion of the property; in the other it is not. The
seizure of stolen goods is authorized by the
‘Carmichael, At Sea with the Fourth Amendment, 32 U.Miami
L.Rev. 51 (1977), surveys additional Supreme Court case law
regarding early boat searches. The focus of the article, as with the
early cases, is primarily on boat searches away from the coastline.
App. 15
common law; and the seizure of goods forfeited
for a breach cf the revenue laws, or concealed to
avoid the duties payable on them has been
authorized by English statutes for at least two
centuries past; and the like seizures have been
authorized by our own revenue acts from the
commencement of the government.
The first statute passed by congress to
regulate the collection of duties, the act of July
31, 1789, (1 St. 43), contains provisions to this
effect. As this act was passed hy the same con-
gress which proposed for adoption the original
amendments to the constitution, it is clear that
the members of that body did not regard
searches and seizures of this kind as
“unreasonable,” and they are not embraced
within the prohibition of the amendment. So,
also, the supervision authorized to be exercised
by officers of the revenue over the manufacture
or custody of excisable articles, and the entries
thereof in books required by law to be kept for
their inspection, are necessarily excepted out of
the category of unreasonable searches and
seizures . . . . But, when examined with care,
it is manifest that there is a total unlikeness of
these official acts and proceedings to that
which is now under consideration. In the case
of stolen goods, the owner from whom they
were stolen is entitled to their possession, and
in the case of excisable or dutiable articles, the
government has an interest in them for the
payment of the duties thereon, and until such
duties are paid has a right to keep them under
observation, or to pursue and drag them from
App. 16
concealment; and in the case of goods seized on
attachment or execution, the creditor is en-
titled to their seizure in satisfaction of his debt;
and the examination of a defendant under oath
to obtain a discovery of concealed property or
credits is a proceeding merely civil to effect the
ends of justice, and is no more than what the
court of chancery would direct on a bill for dis-
covery. Whereas, by the proceeding now under
consideration, the court attempts to extort
from the party his private books and papers to
make him liable for a penalty or to forfeit his
property.
116 U.S. at 623-24, 6 S.Ct. at 528-29.7
Enacted by the very Congress that proposed the
fourth amendment, the revenue statutes mentioned by
the Court are the direct predecessors of 19 U.S.C. §1581.
The initial statute passed in 1789 provided customs of-
ficers with authority to enter any vessel in which they
had “reason to suspect” dutiable goods were concealed
and therein to search for and seize such goods. Upon
‘‘cause to suspect” concealment of goods in a “dwelling
house, store, building,” a warrant was to be obtained
before search.’ By 1815, the reasonable suspicion re-
In Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d
782 (1967), the Court finally repudiated the property notions
transmitted in Boyd, recognizing that privacy, the fundamental in-
terest sought to be protected by the fourth amendment, may be in-
fringed even during searches for items to which the searched person
has no legal claim, for instance, contraband.
*Customs Act, Ch. 5, §24, 1 Stat. 43 (1789). Similar provisions
were carried forward in the Act of August 4, 1790, Ch. 35, §48, 1
Stat. 145, 170; and in the Act of March 2, 1799, Ch. 22, §68, 1 Stat.
627, 677-78.
App. 17
quirement had been deleted for a customs boarding and
search of “‘any ship, vessel, boat, or raft,” though Con-
gress retained that requirement for searches of carriages,
vehicles, persons traveling on foot, and beasts of bur-
den.® None of these provisions contained a requirement
that customs officers know or be fairly certain that the
searched vessel had just come from foreign waters.
In 1924 in Carroll v. United States, 267 4.S. 132, 45
S.Ct. 280, 69 L.Ed. 543, the Supreme Court reviewed
these statutes, noting that none had ever been attacked
as unconstitutional and stating that the Court had
treated a subsequent version as operative in an earlier
decision. Boat searches were not before the Court in
Carroll, however. Nodding in the direction of the
property concepts expressed in Boyd, the Court there
validated the warrantless search of a car for contraband
*Act of March 3, 1815, Ch. 94, §§1, 2, 3 Stat. 231-32. An earlier
statute regarding the enrollment and licensing of ships to be em-
ployed in fishing and “the coasting trade’”’ (maritime commerce
between American port cities) had also authorized collections
agents without a requirement of particularized suspicion to board
vessels within or without their districts and “[there] to inspect,
search and examine, and if it shall appear, that any breach of the
laws of the United States has been committed” for which the vessel
or goods aboard would be liable to forfeiture, to seize the same. Act
of Feb. 18, 1793, Ch. 8, §27, 1 Stat. 305, 315. The Act of March 2,
1799, supra note 8, in addition to §68, which authorized boarding
and search upon reason to suspect concealment of dutiable goods,
also provided for boarding and search without suspicion of ships in
any United States port, or within four leagues of the coast “if bound
to the United States.” Officers were explicitly authorized to have
“free access to the cabin and every other part” of the vessel. If boxes
or trunks were found in the cabin or in other places away from the
cargo, the officers were to make note of it and had the power to seal
them and report the matter to inspectors at the port to which the
ship was bound. Ch. 22, §54, 1 Stat. 668. See Carmichaei, supra
note 6, for review of later statutes.
App. 18
liquor that was subject to forfeiture or destruction. The
customs statutes were cited to support the long-standing
distinction drawn for fourth amendment purposes be-
tween dwellings and movable vehicles, since the latter
might flee the jurisdiction before a warrant could be ob-
tained. Though there was support for an additional dis-
tinction between boats and cars in the various statutes,
the Court did not allude to one. Instead, the distinction
between searches of those crossing an international
boundary, where no probable cause was required, and
searches of those “lawfully within the country, entitled
to use the public highways” where interruption or search
was forbidden absent probable cause, was seemingly ex-
tended to vessels as well. Because, however, the
pronouncement as to boats was not necessary to the
decision and because the facts that were deemed to con-
stitute probable cause in that case would probably not
support today’s more lenient reasonable suspicion stan-
dard,'° Carroll should not preclude our fresh examina-
‘The facts in Carroll were that undercover agents had at-
tempted to buy liquor from the two defendants in September 1921,
but the sale fell through because the defendants’ source was away
from his Grand Rapids location. In October, the agents were
patrolling the highway between Grand Rapids and Detroit when
they sighted the defendants’ car heading toward Detroit. The
agents attempted to tail, but lost, the car. Two months later, the
agents again saw the defendants headed in their car toward Grand
Rapids. The agents stopped them and in the subsequent search
found liquor stashed behind the car seat upholstery.
The agents certainly had a hunch that proved correct, but it is
doubtful that even the initial stop would be valid today under
Brignoni-Ponce standards because of the passage in time since
defendants’ last known illegal attempt and because the outward ap-
pearance of the car and its occupants seems to have borne no
“clues” as to its illegal contents. Compare the characteristics re-
jected as insufficient for a valid auto stop by this court in, e.g.,
United States v. Escamilla, 560 F.2d 1229 (5th Cir. 1977); United
States v. Lopez, 564 F.2d 710 (5th Cir. 1977).
App. 19
tion and balancing of the interests involved in customs
stops, inspections and searches of vessels in our inter-
coastal and coastal waters. !!
‘'We find support for this reexamination in our review of the
boat cases from the years immediately following Carroll. In Maul v.
United States, 274 U.S. 501, 47 S.Ct. 735, 71 L.Ed. 1171 (1927), the
parties conceded and the Court seemed to assume that the Coast
Guard would have plenary authority to board, search and seize
boats found anywhere on the landward side of the 12-mile line. The
majority did caution, however, that the case did not involve “an ex-
ercise of asserted authority to board and search a vessel, domestic
or foreign, for the purpose of detecting and thwarting intended
smuggling.” 274 U.S. at 503-04, 47 S.Ct. at 736. A special con-
currence by Mr. Justice Brandeis, joined by Mr. Justice Holmes,
includes the telling remark that “there is not limitation upon the
right of a sovereign to seize without a warrant vessels registered un-
der its laws, similar to that imposed by the common law and the
constitution upon the arrest of persons and upon the seizure of
‘papers and effects.’ ” 274 U.S. at 524, 47 S.Ct. at 744. He cites
Carroll for this proposition, but it seems more a revival of the Boyd
idea that certain seizures are per se reasonable by their very
natures. This categorical view is ambiguously muted in United
States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927), in
which Mr. Justice Brandeis writes for the whole Court. In Lee the
government argued that, upon probable cause, the Coast Guard
had the authority to visit, search and seize an American vessel
beyond the 12-mile zone. It alternatively argued that the fourth
amendment did not apply to small motor boats not apparently used
as a place of residence or that the search had been delayed until
within “‘the territorial limits” of the United States where the search
was “clearly valid.” Mr. Justice Brandeis replied that the govern-
ment contentions “in the main” were “well founded” and
proceeded to offer so many alternative grounds for affirming the
search (there was probable cause, there was no search but plain
view instead, search within U.S. territory was in any event
authorized) that it is impossible to glean any potential reservations
regarding plenary search powers closer to shore.
The lower courts were more explicit in this period. District
courts tended to be restrictive as to customs or Coast Guard
App. 20
B. Toward a Balancing of Interests to Determine
Reasonableness in the Boat Search Context.
Those who challenge customs or coast guard
searches of boats regularly raise the analogy of Almeida-
Sanchez v. United States in an effort to have us in-
validate the use of evidence obtained in those searches.
In Almeida-Sanchez the Supreme Court held that since
the intrusion was not at the border or its functional
equivalent, probable cause was required for searches of
automobiles by roving Border Patrol agents, despite
broader statutory authority. The argued analogy
possesses considerable surface appeal: a seemingly-legal
(Footnote 11 continued)
searches. See, e.g., United States v. Coppolo, 2 F.Supp. 115 (D.N.J.
1932); United States v. Powers, 1 F.Supp. 458 (E.D.N.Y. 1932). Ina
widely cited opinion, a New York district court questioned the ap-
plicability of §1581 to pleasure boats and intimated that search of
such boats was not authorized thereunder in the absence of facts
leading agents to believe the boat carried cargo from a foreign port.
Fish v. Brophy, 52 F.2d 198 (S.D.N.Y. 1931). That court also read
Carroll as requiring probable cause for boarding and searching any
boat not known to have come from foreign waters. 52 F.2d at 201.
The Second Circuit repudiated both of these positions, however. In
United States v. Wischerth, 68 F.2d 161 (1933), on facts closely
resembling ours, the court ruled that probable cause was not
necessary for a search of a vessel, low in the water and apparently
carrying cargo, which was first sighted entering New York harbor
through “‘the Narrows.” See also The Atlantic, 68 F.2d 8, 9, 10 (2d
Cir. 1933)(§1581 right to stop and search is not confined to commer-
cial vessels but also applies to “private” or “pleasure” vessels); The
Pueblos, 77 F.2d 618 (2d Cir. 1935)(probable cause not required for
search of vessel running without lights up the coastline); Awalt v.
United States, 47 F.2d 477 (3d Cir. 1931); Alksne v. United States,
39 F.2d 62 (1st Cir.), cert. denied, 281 U.S. 768, 50 S.Ct. 467, 74
L.Ed. 1175 (1930); Arch v. United States, 13 F.2d 382 (5th Cir.
1926).
App. 21
vessel is hailed by a roving customs or coast guard boat
and boarded and searched for drugs on the “pretext” of
the need to check documents or safety equipment.!? We
think it proper, however, to resist the urge to impose un-
critically on boat searches the set of standards governing
auto searches on our internal highways. In the wake of
Almeida-Sanchez the Court surveyed a wide range of in-
terests and circumstances before striking various fourth
amendment balances in the context of policing the na-
tion’s land boundaries. '? The importance of the nation’s
interests in regulating its commerce with other nations,
policing its borders, and regulating the conduct of the
boats protected under its flag makes such a detailed sur-
vey imperative here. We offer these reflections as much
to aid in developing a mode of analysis that is cognizant
of the unique maritime context as to determine the
fourth amendment status of the search here challenged.
We commence by sounding the varying degrees of
privacy one may reasonably expect aboard vessels. '‘ It is
Carmichael, supra, note 6 at 54-55.
'*As mentioned above, in United States v. Brignoni-Ponce, the
Court validated limited investigatory stops by a roving boarder
patrol upon the presence of reasonable suspicion. In United States
v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116
(1976), the Court rules that, even absent suspicion, such a limited
stop might be made at a traffic checkpoint not the functional
equivalent of the border. But searches may not be performed during
either type stop except upon probable cause or consent. Brignoni-
Ponce, 422 U.S. at 882, 95 S.Ct. 2574; United States v. Ortiz, 422
U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975).
‘Under Katz v. United States, 389 U.S. 347, 88 S.Ct. 507. 19
L.Ed.2d (1967), one’s reasonable expectation of privacy is the
touchstone of fourth amendment analysis.
App. 22
AO Ae cet ci me
PA TENS a ON. —
true that certain boats may be “home” to certain
sailors, '* but that is not uniformly or invariably the case.
The type of vessel and, as suggested in Rakas v.
Illinois,'® the particular area of it that is searched may
be crucial in determining whether a sailor’s expectations
are reasonable. Relatively high levels of privacy might
be accorded, for instance, to those aboard a houseboat!”
or to the crew’s living quarters on a tanker that travels
for months at sea.'* By contrast it is difficult to see that
a crew member might legitimately claim privacy on the
open deck of a fishing smack or in the hold of a cargo
vessel available for hire.!® A harder case to assess, reser-
ved for another day, is the enclosed area of a yacht or
large sailboat which might be in use as a living area dur-
ing an extended cruise or might also serve as a mere
cargo container on an illicit drug run.
The next factor to be examined is the degree of in-
trusion on protected privacy that is caused by the
challenged governmental action. Pursuant to the
‘United States v. Cadena, 588 F.2d 100, 101 (5th Cir. 1979),
denying petition for rehearing.
'°435 U.S. 922, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).
‘Though this court’s opinion in United States v. Williams, 544
F.2d 807 (5th Cir. 1977), does not explicitly allude to the degree of
privacy expected aboard the gerrybuilt houseboat, the fact that the
appellants were residing aboard the boat may have influenced the
decision.
‘United States v. Whitaker, 592 F.2d 826 (5th Cir. 1979);
United States v. Cadena, 585 F.2d 1252, 1264 n.27 (5th Cir. 1978),
rehearing denied, 588 F.2d 100 (1979).
‘United States v. Williams, 589 F.2d 210 at 214 (5th Cir. 1979);
Whitaker, supra at 829-830,
App. 23
generous section-1581 authority Congress has attempted
to accord customs officers, the intrusion might range
from a completely random stop routinely to check docu-
ments or safety equipment, through a limited inspection
of potentially cargo-bearing cavities to match their con-
tents against the manifest or to determine whether there
are contents that should have been reported, to a no-
holds-barred search of every nook, cranny, mattress and
trunk aboard. Unless the vessel voluntarily reports to a
customhouse, however, there is probably little regularity
in the times and places of these encounters. 2° Many in-
trusions might therefore be deemed arbitrary, with of-
ficers claiming “unbridled discretion” to stop boats on
the least whim. The presence of such wide discretion re-
quires caution in fourth amendment analysis,?! but it is
not invariably fatal to the constitutionality of an intru-
sion.*? Moreover, the potential for provoking fear in the
Regularity in the sense discussed in the Brennan opinion,
supra note 2, played a significant role in the Court’s decision in
United States v. Martinez-Fuerte, supra.
*\See United States v. Brignoni-Ponce, 422 U.S. at 882-83, 95
S.Ct. 2574.
22In United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32
L.Ed.2d 87 (1972), and Colonnade Catering Corp. v. United States,
397 U.S, 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), the Court upheld
administrative inspection schemes that apparently allowed enfor-
cement officers broad discretion to choose the target and time of
search. In Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56
L.Ed.2d 305 (1978), its most recent treatment of the administrative
search exception to the warrant requirement, the Court refused to
allow discretionary nonprobable cause inspections by OSHA absent
an administrative warrant. But the Court explicitly left open the
status of warrantless searches made under other regulatory
statutes, noting that the reasonableness of such schemes will de-
pend upon “the specific enforcement needs and privacy guarantees
of each statute.”’ 436 U.S. at 321, 98 S.Ct. at 1825, 56 L.Ed.2d at
317.
App. 24
a a "
stopped citizen that worried the Supreme Court in re-
cent automobile search cases”® seems less likely to at-
tend maritime intrusions. The heavy overlay of
maritime law and the long practice of regulatory stops,
inspections and searches by these officers, while not dis-
positive of the constitutional question, must, in addition
to coloring our constitutional balancing,?4 lead us to
suspect that the approach of a governmental vessel to a
private boat on the waters may not be as startling as
that of a roving Border Patrol car to an unsuspecting
citizen cruising vur national highways. On the contrary,
boaters customarily expect the presence of and rely on
aid from the coast guard or customs vessels when facing
the perils of a maritime environment. It is quite possi-
ble, therefore, that smugglers form the main class of
sailors in whom the approach of these officers provokes
anxiety,
As a final observation in assessing the private in-
terests to be balanced against the public interests dis-
cussed below, we note that though sailors on occasion
live on their boats, no one lives in a fixed location out in
the water. In contrast to the situation involved in ex-
tended border searches on land, recognizing relatively
generous customs powers over boats does not create a
permanent class of citizens who, solely because of where
they live, are subject to greater intrusions than are other
citizens. While those who venture out into customs
“United States v. Ortiz, 422 U.S. at 894-95, 95 S.Ct. 2585;
United States v. Martinez-Fuerte, 428 U.S. at 558-59, 96 S.Ct.
3074. .
“United States v. Ramsey, 431 U.S. 606, 619 n.14, 97 S.Ct.
1972, 52 L.Ed.2d 617 (1977), citing Carroll v. United States, 267
U.S. at 149, 45 S.Ct. 280.
App. 25
waters and interconnecting waterways for business or
pleasure may certainly lay claim to the right to proceed
unhindered by unreasonable government intrusions,
their claims are perhaps less weighty in gauging
reasonableness than are those of citizens living near our
land borders, with no choice but to use roads in making
their daily rounds. In this connection, however, the
locale of the detention and thus the frequency with
which purely domestic traffic is halted may well bear on
the scope of intrusion that is reasonable or on the degree
of suspicion, if any, required to validate certain
intrusions.
Turning to the governmental interests implicated
in intrusions on vessels, it is evident that the major in-
terest lies in executing congressional determinations un-
der its “plenary powers” to regulate commerce with
foreign nations.?5 But the revenue and regulatory con-
cerns of Congress in this area are not exhausted by ap-
plication to vessels known for a certainty to have come
United States v. Ramsey, supra, 97 S.Ct. at 1979. In Ramsey,
the Court validated customs searches of letters arriving from over-
seas under a statute allowing search upon “reasonable cause to
suspect” that they contained merchandise subject to duty or con-
traband. In the course of developing its border-search rationale, the
majority read the early customs statutes as “border search”’ enact-
ments. None of the statutes nor the Boyd case, supra, required
knowledge of a border crossing as a prerequisite for use of the
plenary customs search powers, however, Since the basic notion of
customs entails the regulation of ingress and egress of goods from
the country, the border search principle undoubtedly forms the un-
derpinning for those statutes granting authority to search. This
does not necessarily conclude the inquiry whether an official must
possess objective information about a boat’s recent whereabouts
before Congress may constitutionally authorize exercise of its
plenary customs powers, |
App. 26
on
a tl
5 i at la
—,
directly from foreign ports. There is a valid governmen-
tal interest in determining whether a boat has come
from abroad or whether it contains secreted dutiable
goods.”° Moreover, the interest in monitoring exports
also may necessitate inspections of vessels in the ab-
sence of border crossing facts.2’ .
In addition to customs concerns, some interference
with boats is also warranted by the national interests in
regulating vessels that fly the American flag?* and in en-
**Certain pleasure craft are subject to special regulation along
with larger fishing or cargo vessels. See, e.g., the statutes pertaining
to yachts at 46 U.S.C. §107 et seq.
*“7In Compania Naviera Bascongada v. United States, 354 F.2d
935 (5th Cir. 1966), for instance, this court examined customs
statutes regarding vessels ‘‘bound for’”’ the United States as applied
to a foreign vessel that made a port call in New York City, there
fulfilling all customs regulations, and then made additional stops in
other American port cities. Though not dealing with fourth amend-
ment issues, the court upheld the right of customs agents to board,
check the manifest, inspect the vessel, and inventory its contents at
each successive United States port. The latter intrusions would
probably not qualify as extended border searches under current
tests, which seek to minimize the elapsed time and distance from
the known border ctossing and generally require some surveillance
to validate an intrusion once a vehicle has left the border. See, e.g.,
United States v. Fogelman, 586 F.2d 337 (5th Cir. 1978). Yet the na-
tion had a valid customs interest to protect in the Compania
situation: goods had been onloaded in New York that remained
duty free only if resold or used aboard, and the crew had been resell-
ing them illegally at subsequent stops along the coast.
**This interest would not be present in approaches to foreign
vessels, though many of the other considerations expressed herein
would apply in that context, which is additionally complicated by
treaties and international law. See, e.g., Cadena, supra; United
States v. Cortes, 588 F.2d 106 [No. 78-5413 (5th Cir. Feb. 6, 1979)];
United States v. Postal, 589 F.2d 862 (5th Cir. 1979).
App. 27
suring orderly travel under the navigation laws. Unlike
border patrol hoat agents, customs officers in patrolling
our intercoastal and customs waters customarily enforce
such laws and coast guard regulations under authority
shared with other law enforcement agencies.*? Effective
enforcement of these long-standing maritime schemes
requires according officials fairly generous powers to act
when an occasion presents itself — when a vessel comes
into view. Oceanic frontiers of their nature are more dif.
ficult to police than are land boundaries. It is imprac-
tical to picket the actual maritime border three miles
out at sea.” It is also unreasonable to expect customs
agents to observe the major portion of vessels crossing
that imaginary line or to pair up sightings before and af-
ter most crossings. There may be no effective alternative
to random stopping*! and some degree of inspection or
search because of the sea’s vastness and the difficulty of
locating objects traveling on it. Moreover, there are no
roads in customs waters to channel the flow of incoming
persons. Thus, customs agents have fewer opportunities
than their land-based couterparts to establish “traffic
*°Under a “‘two-hat”’ system of delegation, coast guard officials
function as customs agents, and customs officials may be
authorized to assist the coast guard. See, e.g., United States v.
Warren, 578 F.2d 1058, 1066-67 (5th Cir.), en banc granted on other
grounds, 586 F.2d 608 (1978); United States v. Byrd, 483 F.2d 1196,
1198 (5th Cir. 1973); United States v. Thompson, 475 F.2d 1359,
1362-63 (5th Cir. 1973).
“United States v. Freeman, 579 F.2d 942, 946 (5th Cir. 1978).
*'Because of the physical characteristics of especially large
boats, it may be difficult for observers to form particularized suspi-
cions based on sluggish handling and other factors like those
present in this case.
App. 28
i ener all aS ASS NRE hl a te ince
LEE INE PE EIT ng Ton we coe
checkpoints” and thus monitor entrants who fail to stop
voluntarily at a customhouse.:2
[4] We have already judged it reasonable under the
fourth amendment for customs officials to stop any
vessel found in customs waters and board it for a docu-
ment check and safety inspection.*? We have also found
that, pursuant to their virtually identical statutory
authority, coast guard officers may board American
vessels on the high seas to do a document and safety
check and look for obvious customs violations. On the
other hand, we have required at least reasonable suspi-
cion that a houseboat is within the area of customs con-
"Recognizing the difficulties of stemming the flow of illegal en-
trants along our land border with Mexico, courts have approved the
use of permanent checkpoints along roads leading from the border.
At these places federal officers may briefly detain and question all
passers. Martinez-Fuerte; United States v. Santibanez, 517 F.2d
922 (5th Cir. 1975). If the checkpoint fulfills certain criteria, it is
considered a functional equivalent of the border, and routine but
limited searches of a vehicle’s large cavities may be conducted.
United States v. Alvarez-Gonzalez, 561 F.2d 620 (5th Cir. 1977). At
such locations, significant amounts of purely domestic traffic may
routinely be interdicted as a result of striking the necessary balance
between a citizen’s reasonable expectations of privacy and the
pressing law enforcement need to monitor positions of international
traffic not otherwise controllable.
The difficulties of similar routine monitoring on many of our
waterways and the other factors discussed herein may serve to dis-
tinguish maritime law enforcement practices from, e.g., the random
stops of automobiles recently prohibited in Delaware v. Prouse,
US. , 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).
“United States v. Freeman, 579 F.2d 942 (5th Cir. 1978).
“United States v. Warren, 578 F.2d 1058 (Sth Cir.), rehearing
en banc granted on other grounds, 586 F.2d 608 (1978).
App. 29
cern before it may be boarded while docked in an inland
marina.*° Considerations such as those outlined above
might in the proper case support a blanket authoriza-
tion of customs personnel to briefly halt vessels sighted
in intercoastal waterways for random document and
safety boardings. They might also support a rule that,
upon reasonable suspicion, customs officers may board
boats found there or in customs waters and do a limited
inspection for obvious customs violations by viewing the
interior of large, potentially cargo-bearing cavities of
cargo or fishing vessels and pleasure boats whose con-
struction reveals a capacity to conceal significant
amounts of cargo.** We do not presently face these situa-
United States v. Williams, 544 F.2d 807 (5th Cir. 1977). This
opinion is somewhat ambiguous as to the minimum degree of suspi-
cion required to validate a boarding. It may be read as allowing
boarding if officers have a reasonable suspicion either that a
customs violation is being committed aboard or that the boat has
been in, or in contact with other boats that have been in, inter-
national waters.
**In United States v. Odom, 526 F.2d 339 (5th Cir. 1976), and
Warren, supra, we allowed coast guard officers to enter the hold of
American vessels to check the main beam number against the num-
ber listed on the vessel’s documents. These inspections were not
analyzed as searches to be justified but rather as routine parts of
legitimate document checks, themselves the occasions for observing
suspicious “cargo” that formed probable cause for the further
search. This practice perhaps offers a fertile ground for elaborating
the Supreme Court’s observation that “[nJot every aspect of a
routine automobile ‘inspection’ . . . necessarily constitutes a
‘search’ for purposes of the Fourth Amendment.” United States v.
Ortiz, 422 U.S. at 897 n.3, 95 S.Ct. at 2589 n.3. In exploring a possi-
ble distinction between inspections and searches, we should be
mindful that, in the maritime context, the policies behind several
traditionally discrete exceptions to the warrant requirement — the
border search doctrine, the administrative inspection exception for
certain regulated industries, and the automobile-exigent cir-
cumstances doctrine — uniquely converge. See Carmichael, supra,
n.6 at 104.
App. 30
pent I Te
yor
SAR AEN PRIORI LE Ne Ss a
tions. We need only decide whether the fourth amend-
ment allows the boarding of a pleasure craft, sighted
initially in intercoastal waters, as to which officers have
a reasonable suspicion of a customs violation — a
boarding that occurred after an unsatisfactory docu-
ment check on shore. Applying the mode of analysis
suggested above, we note that the area initially invaded
— the cockpit of a 25-foot pleasure craft — is generally
visible to those passing nearby. The privacy expected in
such an area would be minimal. In addition, the two ap-
pellants were no longer aboard; thus the boarding in-
fringed their privacy interests, as contrasted to their
property interests, even less severely. The government
interests being vindicated, on the other hand, were ex-
tremely important. The officers observed appellants
flout traffic rules and possessed other facts leading them
reasonably to suspect a customs violation and perhaps a
theft. Though there was a chance, especially given the
place of initial sighting in intercoastal waters, that ap-
pellants’ outing would turn out to be only a domestic
journey, it was reasonable in light of those strong suspi-
cions to detain the men pending a further brief inspec-
tion aboard, even absent known border crossing facts.
We need not speculate whether their suspicion would
also have justified a brief inspection of the closed hull
cavity since, as soon as the boat was boarded, probable
cause arose, fully justifying the more detailed search. If
exigent circumstances be required, they were present as
well. As the search was within statutory authority and
was constitutional, its fruits were admissible in
evidence.
App. 31
III. Sufficiency of Evidence on Williams’ Possession
Charge.
Having been acquitted on the importation charge,
Williams argues that there is insufficient evidence to
sustain his conviction of possession with intent to dis-
tribute. The evidence against him is not overwhelming,
but we believe it sufficient when assessed under the rele-
vant standard of review. We must view the evidence and
all resonable inferences arising therefrom in the light
most favorable to the government, the prevailing party.
Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457,
86 L.Ed. 680 (1942). We may not substitute our view of
the evidence for that taken by the trier of fact since the
test on appeal is whether the trier of fact might
reasonably conclude that the circumstantial evidence
relied on excluded every reasonable hypothesis of in-
nocence. United States v. Sidan-Azzam, 457 F.2d 1309
(5th Cir. 1972).
[5] The evidence indicates that Williams was ob-
served in a 25-foot Nova, speeding into an inland
waterway from the ‘ocean side” of a cut at 8 a.m. on a
cold, wet day. He was positioned in the cockpit of the
boat, a point at which the odor of the 1500 pounds of
marijuana aboard was “overpowering.” He was wearing
a soaking wet “Bimini” sweatshirt identical to that of
Whitmire whose presence in Bimini just the day before
was confirmed by a fuel receipt. He argues that his con-
viction should be overturned because “mere presence”’
or merely being a passenger in proximity to contraband
is not enough to constitute constructive possession. See
United States v. Ferg, 504 F.2d 914, 916-17 (5th Cir.
1974); Williams v. United States, 361 F.2d 280, 281 (5th
Cir. 1966). We have also held, however, that where other
App. 32
atari
circumstantial evidence, such as one’s attitude, conduct
or relationship to the driver, is sufficiently probative,
proximity to contraband coupled with inferred
knowledge of its presence will support a finding of guilt
on such charges. United States v. Christian, 505 F.2d 94,
96 (5th Cir. 1974). In United States v. Canada, 459 F.2d
687 (5th Cir. 1972), we sustained the conviction of a
passenger in a car found to have four large sacks of mari-
juana in its trunk during a border search. In addition to
this proximity to the contraband and the defendant’s
“relationship” to the person driving the car, the sole ad-
ditional evidence supporting an inference of conspiracy
and marijuana transportation was the testimony of a
border patrol agent, inconsistent with his own earlier
testimony, that both defendants had told him that the
marijuana had been crossed upriver from the port of en-
try. In United States v. Christian, supra, we concluded
that the evidence that a woman was freely present on a
boat for an eight-day sailing trip, during which time
bags of marijuana were boarded and placed in the cabin
in plain view, was sufficient to support a jury’s finding of
possession and importation. We held that in addition to
her presence on the boat, the length of the voyage, the
relationship between the defendant and a co-defendant
whom she had married by the time of trial, and the large
quantity of marijuana involved which made it in-
disputable that she had knowledge of the contraband
were factors the jury was entitled to consider.
In the case at bar the trial judge could reasonably
have concluded that the presence of such a large amount
of marijuana in a boat the size of the Nova can hardly
have escaped the attention of Williams. Moreover, the
hour of their apprehension, their probable point of
departure, their great speed to reach home port, and
App. 33
their flouting of boating regulations all contribute to the
inference that Williams must have realized and shared
the furtive object of Whitmire’s enterprise. We find the
evidence of his guilt sufficient.
AFFIRMED.
ALVIN B. RUBIN, Circuit Judge, concurring:
I concur in parts I and III of the opinion and in the
result reached in part II. I agree with my brethren when
they say, near the end of their opinion, ‘We need only
decide whether the fourth amendment allows the
boarding of a pleasure craft, sighted initially in inter-
coastal waters, as to which officers have a reasonable
suspicion of a customs violation — a boarding that oe:
curred only after an unsatisfactory document check on
shore” (my emphasis). And I agree with their answer:
The boarding and what ensued did not violate the defen-
dant’s constitutional rights. But I disagree respectfully
with the necessity of the tacking and hauling by which
they arrive at that point and many of the sightings they
take along the way. Because these passages have poten-
tially dangerous impact on fourth amendment rights, [
think it necessary to set forth my own views on how the
fourth amendment applies to official action on
navigable waters lest its bulwarks be imperilled by the
hazards of the sea.
My brethren assume at the outset that the fourth
amendment protects seafarers as well as those who fly
planes or operate vehicles or live on land. I would again
emphasize what they only suggest before they turn to
search the horizon for exceptions: those aboard vessels
are protected by the fourth amendment, and no vessel
App. 34
TRB
may be stopped or boarded or searched except in com-
pliance with its requirements. Without a warrant, law
enforcement officers may not even stop, and, a fortiori,
may not board or search a vessel unless the action is
reasonable by fourth amendment standards.
With the fourth amendment as their lodestar, the
majority then appropriately sail on to explore whether
exceptions to the requirement of a warrant justify the
actions customs officials took with rspect to Whitmire’s
Nova. They correctly note that the border search doc-
trine, in limited or extended form, allows official
searches without warrant and without reasonable suspi-
cion. Subject only to scrutiny of the manner in which it
is conducted, the search of people or things that cross
our borders is ‘‘reasonable”’ for fourth amendment pur-
poses even in the absence of probable cause or a warrant
merely by virtue of the fact of border crossing. Almeida-
Sanchez v. United States, 1973, 413 U.S. 266, 272, 93
S.Ct. 2535, 2539, 37 L.Ed.2d 596, 602; United States v.
Soria, 5 Cir. 1975, 519 F.2d 1060, 1063. Therefore, if an
American vessel is known or reasonably suspected to
have come directly from seas beyond the three-mile
limit,! the border search doctrine validates a complete
search of the vessel even without a modicum of suspi-
cion of wrongdoing. See, e.g., United States v. Ingham, 5
Cir. 1974, 502 F.2d 1287, cert. denied, 1975, 421 U.S.
911, 95 S.Ct. 1566, 43 L.Ed.2d 777; United States v.
Lonabaugh, 5 Cir. 1973, 494 F.2d 1257. Here, however,
as my brethren state, the customs officials could not
'The three-mile limit establishes the boundary of the territorial
sea. See United States v. Freeman, 5 Cir. 1978, 579 F.2d 942, 944.
See also United States v. Ingham, 5 Cir. 1974, 502 F.2d 1287, 1290,
cert. denied, 1975, 421 U.S. 911, 95 S.Ct. 1566, 43 L.Ed.2d 777;
United States v. Hill, 5 Cir. 1970, 430 F.2d 129, 131.
App. 35
reasonably have concluded that the defendants’ vessel
had recently crossed an international border, and the
later discovery that it had come directly from Bimini
could not retroactively convert the customs officers’ ac-
tions into a valid border search.
At locations other than the border and its
functional equivalents, both stops and searches are sub-
ject to strict limitations. In Almeida-Sanchez, supra,
the Supreme Court held that searches by border patrols
roving on land must be premised on probable cause, and
in United States v. Ortiz, 1975, 422 U.S. 891, 95 S.Ct.
2585, 45 L.Ed.2d 623, the Court struck down a border
patrol search without a warrant or probable cause at a
fixed checkpoint that was not the functional equivalent
of the border. We have held the Almeida-Sanchez
precepts applicable to customs authorities. United
States v. Brennan, supra, 538 F.2d at 719.
When we reach this point on our charts, we have
reached the limit of permissible warrantless searches,
absent the combination of probable cause and exigent
circumstances. See, e.g., United States v. Cadena, 5 Cir.
1979, 588 F.2d 100 (on petition for rehearing); United
States v. Weinrich, 5 Cir. 1978, 586 F.2d 481, 492-93. I
emphasize the word “searches,” for government agents
do have authority to take action less intrusive than a
search without violating the fourth amendment.
Limited investigatory stops for routine document
and safety checks without a warrant, or probable cause
App. 36
aah a aE il ot A AER A ill lt iis al a te en Tal aaa
29 GG Me LY “ol + Dl,
and exigency, have been held permissible.? In United
States v. Brignoni-Ponce, 1975, 422 U.S. 873, 95 S.Ct.
2574, 45 L.Ed.2d 607, the Court held that officers on rov-
ing land patrol may stop vehicles “if they are aware of
specific articulable facts, together with rational in-
ferences from those facts, that reasonably warrant suspi-
cion [of illegal activity].”’ 422 U.S. at 884, 95 S.Ct. at
2582, 45 L.Ed. 2d at 618. We applied this principle to
vessels in United States v. Williams, 5 Cir. 1977, 544
F.2d 807, where, however, we concluded that customs
authorities had no power to board and search a
houseboat moored at marina four miles from open
waters if there was neither any likelihood of a border
crossing nor reasonable suspicion of any violation of law.
Finding no safe harbor in the border search doc-
trine, the majority abandon that tack and sail all too
briefly with the Brignoni-Ponce doctrine. They conclude
that the stop and interrogation of Whitmire and
Williams were safely within the investigatory channel,
but then retreat, finding no basis for boarding the
docked vessel because the officers did not have
“probable cause.’ I do not see that probable cause to
board is necessary if the officers had reasonable suspi-
cion of wrongdoing, not allayed by initial questioning.
*In Marshall v. Barlow’s, Inc., 1978, 436 U.S. 307, 98 S.Ct.
1816, 56 L.Ed.2d 305, the court refused to sanction inspections of
private industrial premises for OSHA purposes. It recognized that
some searches of “‘pervasively regulated businesses” and of “closely
regulated”’ industries ‘long subject to close supervision and inspec-
tion’”’ are valid sans warrant. Id. at 313, 98 S.Ct. at 1820-21, 56
L.Ed.2d at 311. I do not believe that merely sailing a vessel is suf-
ficient to make every navigator subject to search or that helmsmen
constitute an industry having ‘“‘such a history of government over-
sight that no reasonable expectation of privacy . . . could exist.”
See cases cited therein.
App. 37
An “investigatory stop” as applied to a vessel embraces
both stopping and boarding it for a routine document
and safety check, cf. United States v. Williams, 5 Cir.
1979, 589 F.2d 210, 214; the majority agree that, had the
customs agents overtaken defendants’ vessel before it
moored, a boarding would have been permissible. I can-
not place the same significance as apparently do they in
the vessel’s newly assumed docked condition.
Here, within sight of shore, the majority turn back
to sea and rely on the existence of “pure statutory
authority” which, they assert, has been found “‘indepen-
dently reasonable”’ for fourth amendment purposes as to
“some searches on water’ (emphasis supplied). I
respectfully differ with them in this legal conclusion.
The existence of a statutory provision such as 19 U.S.C.
§1581 authorizing law enforcement officials to do what
they did is essential to the validity of their action. The
statutory authority here is not challenged. But, however
broad a statutory grant of authority, it is limited by con-
stitutional restraints.? CF. Almeida-Sanchez, supra;
United States v. Cadena, Cir. 1978, 585 F.2d 1252. Sec-
tion 1581 does not create a sort of nautical exception to
the fourth amendment.
United States v. Freeman, Cir. 1978, 579 F.2d 942,
on which my brethren rely, did not uphold a search on
'There is superficial appeal in the observation that the statutes
on which the customs officials now rely stem from laws enacted by
the Congress that adopted the fourth amendment. This suggests
that what was authorized by statute then is constitutional now
without taking the slightest note of the many changes in fourth
amendment interpretation that have since occurred, some com-
mented on and others sought to be distinguished by the majority it-
self (e.g. the decision in Carroll v. United States).
App. 38
the basis of §1581. Rather, the court there found a
routine stop and boarding for a safety’ and document
check fourth-amendment-reasonable, and the
subsequent search justified by the plain view of hiding
aliens. In United States vs. Whitaker, 5 Cir. 1979, 592
F.2d 826, a majority of this panel extended the reasoning
of Freeman to uphold the stopping and boarding of a
vessel first sighted in ‘customs waters” but appre-
hended only after it had passed into inland waters.‘
They noted then that, if the customs officers had in-
itially sighted the vessel on inland waters, “which are
frequented by many vessels having no apparent customs
connections,”’ the result might have been different.
The different case is now before us, and I would con-
clude that, when a vessel is seen only on inland waters,
and there is nothing to connect it with the border,
customs authorities must have reasonable suspicion of
wrongdoing to justify their intrusion on those enjoying
this nation’s waterways just as is required before land or
air travellers are stopped and questioned. I do not think
the craft’s watery location of itself distinguishes a vessel
from a land vehicle or a plane. The fourth amendment
‘I concurred only in the result in Whitaker, due to my concern
about apparently inconsistent language in Freeman and United
States v. Williams, 5 Cir. 1977, 544 F.2d 807. The majority here in
no way allay that concern. See note 6 infra.
App. 39
rca ——C(isits
makes no such distinction.5 Moreover, I do not under-
stand the majority’s explanation that even those who
live aboard ships do not live in “a fixed location” on the
water; automobiles and aircraft are equally mobile, and
far less likely to serve as a permanent abode. Cf. United
States v Cadena, supra, 588 F.2d at 100. Those who sail
our nation’s waterways are entitled to the same protec-
tion as those using its roads or airspace: freedom from
unreasonable stops and searches.
My brethern attempt to minimize the intrusiveness
of searches on the water by observing that “smugglers
form the main class of sailors in whom the approach of
. Officers provokes anxiety.” The notion that only
law-breakers need fear unlimited police action is at the
root of all police state rationalization. The essence oi the
Bill of Rights is the protection even of wrongdoers. And
those of us who have nothing to hide are guaranteed
safety from the annoyance of intrusive police conduct
even if it provokes only irritation and not anxiety.
Here, as in all the prior vessel search cases that
have come before us, the search was successful; contra-
band was discovered. We have no way to know in how
‘Except to the extent that circumstances determine what is
reasonable with respect to the searching of each, I do not agree with
the observation in footnote 32 that “maritime law enforcement
practices” may be distinguished from “the random stops of
automobiles recently prohibited in Delaware v. Prouse,”’ 1979, ___
U.S. ___ 99 S.Ct. 1391, 59 L.Ed.2d 660. Even if I did agree that
random stops of ships are likely valid although random stops of
automobiles are prohibited, I would not speculate about these, nor
about whether planes are more like automobiles than ships; I would
trim sails and answer only the question presented, rather than deal-
ing discursively with them and the other matters about which I feel
constrained to comment.
App. 40
many cases vessels are stopped, the privacy of citizens is
invaded, and nothing is found to be amiss. I would,
therefore, strike the balance between individual privacy
interests and governmental concerns differently from
my brethren, at least when customs authorities have no
reason to believe a vessel is returning from a venture
beyond American waters.
The principles that I deduce can, therefore, insofar
as they are applicabie here, be simply stated: when a
vessel is seen only on inland waters, the customs officials
may search it without probable cause only if they
demonstrate reasonable grounds to believe a border
crossing has taken place; they may make a limited in-
vestigatory stop and boarding if they can articulate.
specific facts that, together with logical inferences
drawn therefrom, reasonably warrant their suspicion of
illegal activity. The search here was not a valid border
search, but it was justified as an investigatory stop
prompted by reasonable suspicion of law violation under
Brignoni-Ponce.
This is where my brethren began. At this point I
would have ended.
SOf course, Coast Guard officers are authorized by statute to
stop and board a vessel for a document and safety check, even in
territorial waters. See 14 U.S.C. § 89(a). Cf. United States v.
Warren, 5 Cir. en banc 1978, 578 F.2d 1058, 1065, upholding a stop
and boarding on the high seas for safety and document checks, and
“to look for obvious customs and narcotics violations.” The con-
stitutionality of such discretionary stops, as well as those
authorized in Freeman and Whitaker, supra, must be reexamined
in light of the Supreme Court’s recent decision in Delaware v.
Prouse, 1979, — U.S. —, 99 S.Ct. 1391, 59 L.Ed.2d 660.
App. 41
ii al
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.