Appendix — Harper v. United States
Supreme Court brief1980
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IN THE
OCTOBER TERM, 1979
No.979-1863
DONALD WINSTON HARPER, NEIL WILSON
ROWE, JAMES MERRILL BURDINE, JOHN
WHITE, DAVID RAY JENKINS, DAVID RAY-
MOND GOVUS, DONALD ALFRED BLACK,
GARY REGAN TALBERT, RICHARD LEWIS
JACKSON, MICHAEL BENJAMIN FORBES and
ROBERT McNEILL HERRING,
Petitioners,
V.
UNITED STATES OF AMERICA,
Respondent.
APPENDIX TO PETITION FOR
A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE
FOURTH CIRCUIT
BARRY NAKELL
1310 LeClair Street
Chapel Hill, North Carolina 27514
Counsel for Petitioners
Of Counsel:
EUGENE GRESSMAN
325 Glendale Drive
Chapel Hill, North Carolina 27514
(Names of Counsel continued on inside cover)
THE CASILLAS PRESS, INC.-1717 K Street. N. W.-Weshington, D. C.-223:1220
(i)
TABLE OF CONTENTS
Appendix A — Opinion of the United States Court of Ap-
Appendix B -
Appendix C —
Appendix D —
Appendix E —
Appendix F —
peals for the Fourth Circuit, Cases Nos.
79-5016, 79-5017, 79-5018, 79-5019 and
79-5020, Decided February 13, 1980 .........
Opinion of the United States Court of Ap-
peals for the Fourth Circuit, Case No.
79-5015, United States v. Coats, 611 F.2d 37
(4th Cir. 1979), cert. den., No. 79-1230 ......
United States District Court for the Eastern
District of North Carolina, New Bern Divi-
sion — Memorandum and Recommendation
on Motions To Suppress Evidence Relating
to the Vessell Lady Ellen, Filed June 16,
EPTO: Kec epeereceeserdedostbcvcevetenvecs
Order of the United States District Court for
the Eastern District of North Carolina, New
Bern Division, Denying Defendants’ Mo-
tions To Suppress Evidence Relating to the
Vessell Lady Ellen, Dated July 3, 1978.......
United States District Court for the Eastern
District of North Carolina, New Bern Divi-
sion — Memorandum and Recommendation
on Motions To Suppress the Searches and
Seizures at Back Creek, Filed June 20, 1978 ....
United States District Court for the Eastern
District of North Carolina, New Bern Divi-
sion — Supplementary Memorandum and
Recommendation on Motions To Suppress
the Searches and Seizures at Back Creek,
FOE SU Fy SOP ACUA GAS CA heb bs one v emcees
Page
52
(ii)
Appendix G — United States District Court for the Eastern
District of North Carolina, New Bern Divi-
sion — Memorandum and Recommendation
on Motions To Suppress Evidence Seized
from Automobiles, Filed June 22, 1978 ......
Appendix H — Order of the United States District Court for
Appendix I —
Appendix J —
Appendix K —
Appendix L —
the Eastern District of North Carolina, New
Bern Division Denying in Part and Allowing
in Part Defendants‘ Motion To Suppress
Evidence Seized from Automobiles, Dated
Pe aa i ie Ok ONE VEER WERE Oh 6 bes
United States District Court for the Eastern
District of North Carolina, New Bern Divi-
sion — Stipulation, Dated July 2, 1978......
United States District Court for the Eastern
District of North Carolina, New Bern Divi-
sion — Memorandum and Recommendation
on Motions To Suppress Statements of
Defendants Harper and Rowe, Filed June
PO LEPEO Dk ce ce soecenccnnreedsscenstanes
Constitutional, Statutory and Regulatory
ee ak ead
Table of Disparities in Composition of Peti-
I odo tis debe tace 0esebee
Appendix M — Table of Outcomes of Jury Composition
SE 6575.64 Saath in paces s nadnea es
Page
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 79-5016
United States of America,
V.
Donald Winston Harper,
John White, a/k/a Leroy J.
Edwards, a/k/a Roy Edwards,
Neil Wilson Rowe,
No. 79-5017
United States of America,
V.
James Merrill Burdine,
No. 79-5018
United States of America,
V.
David Ray Jenkins and
David Ramond Govus, a/k/a
Sam, a/k/a Melvin Hawkins,
Appellee,
Appellants.
Appellee,
Appellant.
Appellee,
Appellants.
2a
No. 79-5019
United States of America,
V.
Donald Alfred Black,
Gary Regan Talbert and
Robert McNeill Herring,
No. 79-5020
United States of America,
V.
Richard Lewis Jackson and
Michael Benjamin Forbes,
Appellee
ef
Appellants.
Appellee,
Appellants.
Appeals from the United States District Court for the
Eastern District of North Carolina, at New Bern.
F.T. Dupree, Jr., District Judge.
Argued: August 22, 1979 Decided: February 13, 1980
Before BUTZNER, HALL and PHILLIPS, Circuit
Judges.
Barry Nakell for Appellants in 79-5016 througiy 79-5020;
Reber Boult for Appellant Herring; (Steven A. Bernholz
on brief) for Appellants Black and Talbert; (Robert
3a
Fierer on brief) for Appellant Burdine; (James K.
Jenkins on brief) for Appellants Harper and Rowe;
(Norman B. Kellam and David P. Voerman on brief)
for Appellants Jackson and Forbes; (Edwin Marger on
brief) for Appellant Govus; (Bruce H. Morris on brief)
for Appellant White; (John W. Stokes on brief) for Ap-
pellant Jenkins; Herman E. Gaskins, Jr., Special
Assistant United States Attorney (George M. Anderson,
United States Attorney on brief) for Appellee United
States of America in 79-5016 through 79-5020.
HALL, Circuit Judge:
Appellants appeal their conviction for conspiracy to
import marihuana in violation of 21 U.S.C. §§925(a),
960(a)(1) and 963. Each appellant was arrested at or
near the scene of a Drug Enforcement Administration
raid in an isolated area of North Carolina where 25
tons, some 400 bales, of South American marihuana
were being unloaded from a shrimping trawler. The
vessel had been intercepted on the high seas, where its
captain and crew agreed to assist in the successful raid
at the delivery site. Primarily, appellants raise fourth
amendment issues arising out of the interception of the
vessel on the high seas, and two vehicular stops of
defendants driving along a state highway one mile from
the dirt access road to the site. Finding no error in these
and the other issues raised, we affirm.
I.
The facts leading up to this raid are discussed in part
in United States v. Coats, __. F.2d. ___, No. 79-5015
(4th Cir. Nov. 29, 1979). Those involving the discovery
and boarding of the shrimping vessel, the LADY
ELLEN, are there stated succirftly as follows:
4a
[I]n January of 1978 the United States Coast
Guard was engaged in patrolling the Carribean
sea lanes for general law enforcement purposes
with a special emphasis on drug interdiction.
On January 25th the Coast Guard Cutter
ALERT spotted the LADY ELLEN, a fishing
vessel of North Carolina registry, in the Mona
Passage between the Dominican Republic and
Puerto Rico. Following its policy of stopping
all United States vessels less than two hundred
fifty (250) feet in length, the crew of the
ALERT stopped and boarded the LADY
ELLEN and inquired of its master the vessel’s
destination and point of embarkation. At that
point the master stated “you got me, I’m com-
ing from Columbia and I have a load of mari-
juana on board.” A search ensued which pro-
duced some twenty-five (25) tons of marijuana.
The Coast Guard admittedly had no suspi-
cion concerning criminal activities aboard the
vessel.
BG. OB news
The propriety of that stop was never decided because
we upheld the district court’s ruling that appellant Coats
had no standing to raise fourth amendment objections
to it. Some of the appellants here have such standing,’
and we hold that the stop and boarding was lawful, ab-
'In Coats, we indicated that the right of possession and control
of the vessel was in “Sam.” Coats, supra, slip op. at 7. The man
referred to as “Sam” is appellant Govus.
Sa
sent any particularized suspicion of criminal activity
aboard, because it was undertaken as a systematic
“border” stop and inquiry.
Stops and searches at established border checkpoints
are reasonable per se, so that the fourth amendment’s
protection against unreasonable searches and seizures is
not implicated.? The controlling standards are those of
the statute granting authority to the government officials
to conduct the search. United States v. Bilir, ____. F.2d
—__. (4th Cir. 1979) citing United States v. Ramsey, 431
U.S. 606, 616-19 (1977).
In United States v. Bilir, ___. F.2d ___, we explained the ra-
tionale of allowing custom checks at places other than the territorial
border.
While the justification for the relaxed [fourth amend-
ment] standards is at its clearest with respect to searches
at regular customs stations literally “on the border,” it
has long been recognized to apply as well to so-called
“extended border searches,” under which “border” is
given a geographically flexible reading within limits of
reason related to the underlying constitutional concerns
to protect against unreasonable searchs. See e.g.,
Castillo-Garcia v. United States, 424 F.2d 482 (9th Cir.
1970). The many difficulties that attend the attempt to
intercept contraband and to apprehend increasingly
mobile and sophisticated sinugglers at the very borders
of the country have of course given birth to the doctrine.
It holds that some searches by customs officials, though
conducted at points physically away from an actual
border and removed in time from the precise time of im-
portation, may nevertheless be treated as border sear-
ches. /d. (citing cases). The test of validity is one of
reasonableness under the circumstances.
____ F.2d at ___.. (footnote omitted).
=,
6a
The Coast Guard’s statutory authority and traditional
role of policing vessels on the high seas is found in 14
U.S.C. §89(a), and its historical antecedents. See Maul
v. United States, 274 U.S. 501, 512-531 (1927) (concurr-
ing opinion of Mr. Justice Brandeis).
14 U.S.C. §89(a)’ reads in pertinent part,
The Coast Guard may make inquiries, ex-
aminations, inspections, searches, seizures, and
arrests upon the high seas and waters over
which the United States has jurisdiction, for
the prevention, detection, and suppression of
violations of laws of the United States. For
such purposes, commissioned, warrant, and
petty officers may at any time go on board of
any vessel subject to the jurisdiction, or to the
operation of any law, of the United States, ad-
dress inquiries to those on board, examine the
ship’s documents and papers, and examine, in-
spect, and search the vessel and use all
necessary force to compel compliance.
By its terms, the Coast Guard’s authority to stop and
board vessels on the high seas is plenary. United States
v. Warren, 578 F.2d 1058, 1064 (Sth Cir. 1978) (en
This statute can be distinguished from one involving the authori-
ty of a customs officer to stop vessels and to broadly search “any
person, trunk, package or cargo” for the purpose of collecting
custom duties and enforcing revenue laws. 19 U.S.C. §1581. United
States v. Warren, 578 F.2d 1058, 1064-65, n. 4 (Sth Cir. 1978). See
19 C.F.R. §162.3(a)(2) (requiring probable cause for customs of-
ficers to board and search a vessel on the high seas). See also 19
U.S.C. §482, cited in United States v. Bilir, __. F.2d ____ (4th
Cir. 1979).
7a
banc)., In Warren, the Fifth Circuit held, in an en banc
decision, that §99(a) authorizes discretionary boardings
of American flag ships on the high seas, with no par-
ticularized suspicion about criminal activities aboard, in
order to allow officers to conduct random safety and
documentary inspections and, “to look for obvious
customs and narcotics violations.” Jd. at 1065. See,
United States v. Cadena, 585 F.2d 1252, 1262-63 (Sth
Cir. 1978).
We think the Coast Guard’s exercise of its boarding
authority in this case did not violate the fourth amend-
ment.
First, the stop and boarding was not one made at the
will and whim of the officer in the field. Delaware v.
Prowse, 99 S.Ct. 1391, 1401 (1979); United States v.
Martinez-Fuerte, 428 U.S. 543, 566-67 (1976). It was
undertaken pursuant to a policy adopted through the
cooperation of several government agencies to stop all
vessels sailing under the American flag which were
equipped and of a size sufficient for large-scale smug-
gling operations which could not be easily detected
along isolated areas of the United States coast. It was
conducted at a checkpoint in waters well known as sea
lanes for such clandestine operations. All vessels of that
kind which passed the checkpoint were boarded. These
boardings could have been made routinely at port
without a particularized suspicion that contraband was
being imported and we see no reason why systematic
boardings on the high seas should be held unreasonable
because they are made away from the border and port,
albeit 800 miles at sea.
Second, the nondiscretionary stop and boarding of all
vessels passing the checkpoint posed a minimal and,
under the cirumstances, a reasonably necessary intrusion
8a
on privacy interests. The vessel was a commercial vessel
sailing on the high seas. Administrative and regulatory
searches of commercial enterprises, and vessels general-
ly, intrude on interests and expectations of privacy very
different from those involving the integrity of persons
and residences not subject to ongoing regulation. Relax-
ed fourth amendment standards have been approved for
closely regulated industries historically subject to close
supervision and inspection. See Almeida-Sanchez v.
United States, 413 U.S. 266, 270-72 (1973). Certain in-
dustries such as liquor and firearms have such a history
of government oversight that no reasonable expectation
of privacy exists within the industry.
Commercial shipping can be categorized another such
enterprise. Since the beginning of the republic, federal
officials have had the authority to board and inspect
American flag ships. Persons who sail under the
American flag accept the responsibilities and the
burdens when they elect to register their ships with the
United States Coast Guard. Such regulatory inspections
have their basis in the international law of the seas that
requires each nation carefully to maintain the navigabili-
ty and safety of its own commercial fleet as a condition
of non-interference from other nations. See United
States v. Warren, 578 F.2d at 1064-65. (Stop and board-
ing on high seas.) But see, United States v. Piner, 608
F.2d 358 (9th Cir. 1979) (Stop and boarding on San
Francisco Bay.)
Further we think special considerations apply to the
stop and boarding of a vessel on the high seas. The
antecedent sailing of the vessel away from United States
territorial waters, the probability of return to the United
States by the vessel, the historical regulation of vessels
on the high seas (and the consequent lowered expecta-
9a
tion of privacy which prevails with respect to activities
in that setting), as well as the practical difficulties of
policing United States vessels on the high seas if some
standard of prior suspicion is required, are factors
which coalesce to make the search on the high seas a
special case, in much the same sense that a border
search is.
As contrasted to the citizen living on land and subject
to the jurisdiction of numerous police departments and
overlapping controls of several layers of government re-
quiring the highest degree of procedural rights, a ship is
easily lost upon the vast ocean and subject only to the
control of the infrequent government vessels of her own
country. Unlike the land-bound citizen who is in con-
stant contact with government and police, the mobility
and anonymity of the boat require that the government
be able to exercise effective control when the opportuni-
ty presents itself. To require some particularized suspi-
cion concerning individual vessels in order to carry out a
systematic inspection of all vessels in some area of the
sea would encourage outright flaunting of the naviga-
tion, safety and administrative laws of the United States
at the expense of our government’s sovereign obligation
under international law to police its flag ships.
Finally, in all, we think the checkpoint stop and boar-
ding of each vessel of a particular kind in a well-traveled
sea lane on the high seas is not unlike roadside truck
weigh-stations and inspection points which the Supreme
Court has expressly approved as reasonable, nondiscre-
tionary intrusions on privacy interests beyond the war-
rant and probable cause requirements of the fourth
amendment. Delaware v. Prowse, 99 S.Ct. 1391, 1401,
n.26 (1979).
7%
10a
We now turn to the reasonableness of the stops of
vehicles passing in the vicinity of the drug raid.
II.
When the vessel was ready to enter American waters,
the crew was put in charge and continuous surveillance
was maintained by aircraft of the Drug Enforcement
Administration, United States Customs and the North
Carolina State Bureau of Investigation.
The LADY ELLEN sailed to Morehead City where a
man came on board to take over her navigation to the
landing site. A flotilla of Customs patrol boats followed
her from Morehead City toward a sparsely populated
area along Back Creek several miles from Merriman. As
they followed, officers in the patrol boats observed a
light-colored 1970 or 1972 model Plymouth or Dodge on
the bank at a bridge. The headlights of the automobile
were turned on the boats as they passed. During the
unloading operations, the master of the LADY ELLEN
overheard radio warnings from an apparent lookout that
small boats were speeding toward the site.
When alerted about the approaching boats, the super-
visor of the operation ordered the master to sail the
LADY ELLEN away from the dock northward to a
getaway car but the vessel was intercepted by a patrol
boat waiting upstream.
The aircraft pilots observed small boats sailing away
from the LADY ELLEN and directed land units toward
the place where those boats had docked. The agents
closed in on a clearing where they observed a frame
house, a newly-constructed fish house and a newly-
constructed dock on the water. They observed large
trucks lined with black plastic and pickup trucks with
lla
campers and loading devices. Also, they saw a boat
docked near the fish house which was stacked with bales
of marihuana.
After the landing area was secured, a federal agent
left to look for suspects who might be fleeing or helping
others to flee via the only paved road with access to the
site. He used an unmarked car and was accompanied by
a state officer.
Just before dawn, at 5:45 a.m., the officer stationed
the car three miles from the raid site, some seven-tenths
of a mile from the dirt road leading into the site. The
paved road ends, with no outlet, a few miles further in
Merriman. The federal agent had some knowledge of
the apparent lookout at the bridge, and, from the size
and nature of the smuggling operation, he expected
lookouts and other suspects would likely be in the
general area seeking to escape.
The agent’s checkpoint was not a road block; he con-
cealed the car in the woods with a flasher light on the
dashboard.
In the first hour, one car passed. It was stopped and
the driver, a nurse going to work, was allowed to con-
tinue on her way.
The second car, arriving at 7:05 a.m., in t!.- dawning
light hours, was stopped. It was going in the direction
of the raid site. It was a cream-colored 1972 Dodge. The
officers were not in uniform and identified themselves,
respectively, as federal and state law enforcement of-
ficers. The driver, appellant Talbert, was asked for his
driver’s license and car registration. He rendered a
Georgia license and a car rental agreement showing the
car was rented to a third party. He told the officers he
12a
was in the area for “hang gliding” sport. The state of-
ficer arrested him for an alcohol charge. Eventually,
Talbert was implicated, charged and convicted in this
criminal action.
As this questioning was being conducted, other police
cars came to join the officers. Their cars created a visi-
ble checkpoint area as a third car approached the scene,
driven by appellant Herring. The car was a grey, early
1970’s model Plymouth. When he drove up to the police
cars, he was asked for a license and car registration. He
produced a Georgia driver’s license and a rental agree-
ment from the same car agency as Talbert’s, showing his
car was rented in the name of the same third party.
When asked what he was doing in the area, he replied
he was there to go “hang gliding.” He volunteered to go
to Morehead City for photographing and fingerprinting.
Later he was implicated, charged and convicted.
Appellants Talbert and Herring argue that these stops
were as intrusive and unreasonable to passing motorists
as was the surprise discretionary stop in Delaware v.
Prowse, 99 S.Ct. 1391 (1979), which the Supreme Court
held to be unreasonable. They argue that here individual
agents — with no supervisory approval, using unmarked
cars and attired in plain clothes — stopped passing
motorists for questioning with no particularized suspi-
cion about their participation in illegal activity. Also, at
least for the stop of the first appellant’s car, it is em-
phasized that the concealment of their car and the sur-
prise stop could not be fairly called a “checkpoint” stop
since no prominent signs or evidence of official activity
was visible to law-abiding motorists. See United States
v. Martinez-Fuerte, 428 U.S. 543, 545-46 (1976).
We think this analysis misses the mark. In Prowse,
the Supreme Court was concerned with random stops of
13a
vehicles made at the will and whim of officers in the
field, where the officers have no reason to stop any par-
ticular vehicle, other than for general police surveillance.
Here, the problem is very different. The purpose of
these stops was to arrest suspects for a known crime,
not to discover evidence of undetected crimes by the
happenstance of visual searches. A serious crime had
been committed involving numerous participants, some
of whom were known to be fleeing the scene along a
route reasonably expected to be used for their escape.
Stopping all cars there was, under such circumstances, a
necessary means of law enforcement, and as such,
justifies the minimal intrusion on privacy rights posed to
passing motorists.
The Fourth Amendment does not create barriers to
reasonable law enforcement activities in the area of a
detected crime.
The Fourth Amendment does not require a
policeman who lacks the precise level of infor-
mation necessary for probable cause to arrest
to simply shrug his shoulders and allow a crime
to occur or a criminal to escape. On the con-
trary, [Terry v. Ohio, 392 U.S. 1 (1968)] rec-
ognizes that it may be the essence of good
police work to adopt an intermediate response.
Adams v. Williams, 407 U.S. 143, 146 (1972). By virtue
of the exigency of fleeing, perhaps dangerous, suspects,
we think the stops of all persons found on a likely ac-
cess route to the scene of the crime was reasonable, both
in its purpose and in the manner it was conducted. See
United States v. Constantine, 567 F.2d 266 (4th Cir.
1977) cert. denied 434 U.S. 872 (1978); United States v.
Jackson, 448 F.2d 963 (9th Cir. 1971).
14a
III.
In conclusion, we think the evidence obtained as a
result of the vessel and vehicular stops in question was
admissible against the appellants. We acknowledge the
numerous issues raised by various appellants but find no
reversible error in any of them.* Accordingly, the
judgments of conviction are each affirmed.
AFFIRMED.
“In United States v. Coats, 611 F.2d 37 (4th Cir. 1979) we decid-
ed the issue of jury selection and are here bound by it. We note
that appellant Herring has filed a supplemental brief objecting to
that opinion.
15a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 79-5015
United States of America,
Appellee,
-versus-
Gilliam Raymond Coats
a/k/a Jack Long,
a/k/a Bill Waters,
Appellant.
Appeal from the United States District Court for the
Eastern District of North Carolina, at New Bern.
F.T. Dupree, Jr., District Judge.
Argued: July 12, 1979. Decided: November 29, 1979
Before RUSSELL, Circuit Judge, FIELD, Senior Circuit
Judge, and WIDENER, Circuit Judge.
Bobby Lee Cook (Cook & Palmour on brief) and L. Pat-
ten Mason (Mason and Phillips, P.A. on brief) for Ap-
pellanc; Herman E. Gaskins, Jr., Special Assistant United
States Attorney (George M. Anderson, United States
Attorney on brief) for Appellee.
RUSSELL, Circuit Judge:
16a
The defendant also challenges the jury selection plan
for the eastern district of North Carolina as failing to
comply with the National Jury Selection and Service Act
of 1968, 28 U.S.C. §§ 1861-1875, and as violating the
Fifth and Sixth Amendments. The particular plan at
issue here utilizes lists of actual voters for jury selection.
The defendant contends that use of this list resulted in
an exclusion of 60% of the eligible jury population in
the district, and that an alternative source of names
should have been used.
The only showing here is that persons who failed to
vote in the 1976 general election were excluded from
consideration for jury duty. Absent a demonstration
that some cognizable group has thereby been system-
atically excluded or substantially under-represented, this
type of exclusion does not violate constitutional prin-
ciples. Nor does it fail, as defendant suggests, to comp-
ly with the policies and directives of the Act. As defen-
dant’s own figures demonstrate, use of voter registration
lists rather than actual voter lists would increase the
source from 40% of those eligible to 64%, thus still ex-
cluding 36%. Yet both types of lists are expressly ap-
proved by the Act. 28 U.S.C. §§ 1863(b)(2). Nor is any
supplementation of names by use of alternative lists re-
quired absent a showing that voter lists do not represent
a fair cross-section of the community.’ With no
demonstration of under-representation or systematic ex-
‘Castaneda v. Partial (1977) 430 U.S. 482, 493-94; Brown v.
Allen (1953) 344 U.S. 443, 470-74 (opinion of Mr. Justice Reed, an-
nouncing judgment).
*United States v. Test (10th Cir. 1976) 550 F.2d 577, 584, 586 n.
8 (en banc); United States v. Brady, (9th Cir. 1978) 579 F.2d 1121,
1131, cert. denied, ___. U.S. ___, 99 S. Ct. 849; United States v.
Ross (9h Cir. 1972) 468 F.2d 1213, 1216, cert. denied, 410 U.S.
989 (1973). ,
17a
clusion of any cognizable group, that showing has not
been made here.
We have given careful consideration to defendant’s
other grounds of appeal and find no errors therein. Ac-
cordingly, the judgment of conviction is
AFFIRMED.
18a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT
OF NORTH CAROLINA
NEW BERN DIVISION
[Filed June 16, 1976
John R. Whitty, Clerk
U.S. District Court
E. Dist. No. Car.]
UNITED STATES OF AMERICA ) MEMORANDUM AND REC-
OMMENDATION ON MO-
TIONS TO SUPPRESS EVI-
DENCE RELATING TO THE
VESSEL LADY ELLEN
Vv.
DONALD WINSTON HARPER No. 78-08-01-CR-4
MICHAEL BENJAMIN FORBES ) No. 78-08-02-CR-4
JOHN WHITE, No. 78-08-03-CR-4
a/k/a Leroy J. Edwards,
a/k/a Roy Edwards
DONALD ALFRED BLACK No. 78-08-04-CR-4
HERBERT FRANKLIN CLARK No. 78-08-05-CR-4
DAVID RAY JENKINS No. 78-08-06-CR-4
JAMES MERRILL BURDINE No. 78-08-07-CR-4
RICHARD LEWIS JACKSON No. 78-08-08-CR-4
DAVID RAYMOND GOVUS, No. 78-08-09-CR-4
a/k/a Sam,
a/k/a Melvin Hawkins
PAUL JEROME BRESLIN No. 78-08-10-CR-4
PETER FORBES No. 78-08-11-CR-4
ROBERT McNEILL HERRING No. 78-08-12-CR-4
NEIL WILSON ROWE No. 78-08-13-CR-4
GARY REGAN TALBERT No. 78-08-14-CR-4
ee
All defendants have filed motions to suppress all
evidence obtained by the government in the search and
seizure of the vessel Lady Ellen. The United States
Coast Guard stopped the Lady Ellen between Puerto
19a
Rico and the Dominican Republic on January 26, 1978,
boarded her, searched the ship, found large quantities of
marihuana on board, and arrested the master and the
two crewmen. Those three and the other eleven defen-
dants were then indicted on charges of conspiracy to im-
port marihuana and the importation of marihuana in
violation of Title 21 U.S.C. §§ 952(a) and 960(a)(1).
The Coast Guard Cutter Alert in January, 1978 was
patrolling Mona Passage, which runs between Puerto
Rico and the Dominican Republic, for the purpose of
erfforcing all United States laws, more particularly those
relating to safety, documentation, fisheries, illegal
aliens, and illegal drugs. The principal purpose of the
Alert’s mission was drug law enforcement. The general
continuing orders governing the operations of Coast
Guard vessels including the Alert at the time in question
were contained in Coast Guard Operation Manual
201-78, denoting the fiscal year 1978. It was commonly
referred to in the testimony as Operation Manual
201-Yr. The Coast Guard cooperated with the Customs
Service and the Drug Enforcement Administration in
carrying out law enforcement at sea. One cooperative ef-
fort was referred to as Operation Stopgap, a Drug En-
forcement Administration intelligence gathering opera-
tion whose purpose was to obtain maximum information
possible concerning illegal drug activities. An intelligence
clearing house facility at El Paso, Texas, referred to as
El Paso Intelligence Center (EPIC), received intelligence
information concerning illegal activities and transmitted
them to appropriate agencies. In turn, the Coast Guard
and the Customs Service reported sightings, boardings,
seizures and other law enforcement activities to EPIC. I
find that the Coast Guard was not governed in its
operations during the period in question by what is
known as Operation Stopgap; it utilized the information
20a
received from EPIC and transmitted to EPIC pertinent
information obtained in its law enforcement activities.
Prior to the sighting and boarding of the Lady Ellen,
none of the government agencies had received any infor-
mation suggesting that the Lady Ellen was involved in
the importation of marihuana or in other illegal ac-
tivities.
The sequence of events regarding the seizure of the
Lady Ellen was as follows. The Alert was on patrol in
Mona Passage on the evening of January 26, 1978. At
approximately 7:45 p.m. a lookout on the Alert sighted
a white light which did not correlate with any radar con-
tact. Orders went to the helicopter operating from the
Alert to proceed in the direction of the light to in-
vestigate. Within a few minutes of the sighting of the
light, the Alert’s navigation department using normal
radar equipment established contact with a ship carrying
the light and established its position as being six and
one-half miles off the coast of the Dominican Republic.
The helicopter approached the vessel and hovered astern
of it in order to read on the hull the name of the vessel
and home port, using an extremely high intensity search
light known as a “night sun” for that purpose. The
helicopter reported by radio telephone to the Alert that
it was the Lady Ellen out of Wanchese, North Carolina.
Since general orders under which the Alert was
operating included an order to stop and board every
U.S. vessel under 250 feet in length proceeding through
Mona Passage, the commanding officer of the Alert
made a decision to board the Lady Ellen and radioed a
message to the master of the Lady Ellen directing him to
heave to, and that the Alert was going to send a board-
ing party to board the vessel. The Alert launched a
boarding party, which proceeded to the Lady Ellen and
2la
boarded. The officer in charge identified himself and his
boarding party to the master of the vessel, defendant
Paul Breslin. The boarding officer asked the master,
“Where are you coming from and going?” Breslin im-
mediately answered, “You’ve got me. We are coming
from Columbia and are loaded with marihuana.” Lieute-
nant Commander White, the senior officer in the board-
ing party, immediately ordered that all persons on board
be mustered at the fantail. The boarding officer, Ensign
Olthuis, seeing the master and one other person in view
(defendant Donald Harper), inquired whether any other
persons were on board, and defendant Neil Rowe was
brought out to join the others. Olthuis then inquired
whether any weapons were on board and was told that
there were not. At that point Ensign Olthuis gave the
crew their Miranda warnings, and then he left to search
the ship.
The executive officer of the Alert (Lieutenant Com-
mander White) then questioned the crew, and the matter
of their willingness to participate in a controlled delivery
of the marihuana ashore was discussed. At that time one
of the defendant crewmen, probably Breslin, stated that
their intended destination for unloading the marihuana
was the United States. Defense counsel in cross-
examining Mr. White pressed him to say whether the an-
nouncement of the U.S. destination followed or preced-
ed the search for and discovery of the marihuana. At
first White said he did not think that it was after the
search, and a few moments later said that it was learned
after the search. That point however is not material to a
decision on the issue of the validity of the seizure. The
boarding party immediately learned of the presence of
the marihuana on board from the master’s spontaneous
disclosure. White and Olthuis both mentioned the strong
odor on board, unquestionably the marihuana, although
22a
in their testimony they did not specifically identify it as
the distinctive marihuana odor. Once the master
declared that the marihuana was on board, no legal
significance attached to the matter of whether the of-
ficers learned of the destination before or after the
search. Probable cause to search the ship existed when
the master announced that the vessel was loaded with
marihuana. Obviously the destination would be the first
question to discuss with regard to a controlled delivery.
Once that was known there was probable cause justify-
ing the Coast Guard to seize the vessel and the contra-
band and to arrest the crew on board. The decisive ac-
tions, which were not taken until shortly afterward,
were the taking over of the command and navigation of
the ship by the Coast Guard and the arrest and placing
of the crewmen into custody under armed guard. Any
possible deficiency in the timing of the search in relation
to the learning of the destination would be harmless er-
ror without question.
The next question to be considered is whether the
Coast Guard had lawful authority to stop and board the
Lady Ellen in the first place. The Coast Guard initially
boarded the Lady Ellen under the authority of Title 14
U.S.C. § 89 (a), which reads as follows:
The Coast Guard may make inquiries, ex-
aminations, inspections, searches, seizures, and
arrests upon the high seas and waters over
which the United States has jurisdiction, for
the prevention, detection, and suppression of
violations of laws of the United States. For
such purposes, commissioned, warrant, and
petty officers may at any time go on board of
any vessel subject to the jurisdiction, or to the
operation of any law, of the United States, ad-
23a
dress inquiries to those on board, examine the
ship’s documents and papers, and examine, in-
spect, and search the vessel and use all
necessary force to compel compliance. When
from such inquiries, examination, inspection,
or search it appears that a breach of the laws
of the United States rendering a person liable
to arrest is being, or has been committed, by
any person, such person shall be arrested or, if
escaping to shore, shall be immediately pursued
and arrested on shore, or other lawful and ap-
propriate action shall be taken; or, if it shall
appear that a breach of the laws of the United
States has been committed so as to render such
vessel, or the merchandise, or any part thereof,
on board of, or brought into the United States
by, such vessel, liable to forfeiture, or so as to
render such vessel liable to a fine or penalty
and if necessary to secure such fine or penalty,
such vessel or such merchandise, or both, shall
be seized.
The Fifth Circuit has held in several decisions that this
statute authorizes the Coast Guard to stop and board
any U.S. vessel on the high seas for the purposes of
making a safety and documentation inspection, and that
such an inspection under the statute does not violate the
United States Constitution. United States v. Odom, 526
F.2d 339 (Sth Cir. 1976); United States v. Hillstrom, 533
F.2d 209 (Sth Cir. 1976); United States v. One Forty-
three-foot Sailing Vessel, 538 F.2d 694 (Sth Cir. 1976);
and United States v. Warren, 550 F.2d 219 (1977). The
distinction between a lawful boarding for a safety and
documentation inspection and an unlawful extension of
the government’s intrusion on the vessel is illustrated by
&%
24a
United States v. Warren, supra, where the court,
recognizing that no act of Congress can authorize the
violation of the Constitution, stated that the Fifth Cir-
cuit had held in the foregoing cases that the Coast
Guard has authority under the statute to board and
make safety and documentation inspections without
violating the Constitution. Moreover, “if the Coast
Guard, while in the process of conducting a valid safety
inspection, discovers evidence providing »robable cause
to believe a crime has been or is being committed, it
[can] extend the search into areas not normally covered
by a safety check.” The court then held that the Coast
Guard may not extend a search for safety purposes
beyond that which is reasonably needed to determine if
the safety and documentation regulations have been
followed, without probable cause that a crime has been
or is being committed. In that case the facts were that
Drug Enforcement Administration and Customs agents
were on board the Coast Guard cutter and made their
own independent search of the vessel, which the court
condemned as being unconstitutional; and the officers
also extracted admissions from the crew without giving
them their Miranda warnings.
Those decisions also furnished no support to the
defendants in our case on another contention they have
urged upon this court, that the mere presence of
marihuana on board a U.S. vessel upon the high seas
does not constitute probable cause that United States
laws are being violated in the absence of evidence that
the contraband is intended to be imported into the
United States. In all of the Fifth Circuit cases discussed
the marihuana was discovered by the Coast Guard while
making valid inspections for safety and documentation
purposes. There was no evidence indicating the destina-
25a
tion of the marihuana in those cases. This confirms the
conclusion reached above that even if the search for the
marihuana on the Lady Ellen began before the destina-
tion of the marihuana was learned, that would not in-
validate the subsequent arrest of the defendants and
seizure of the cargo. At most, it would be harmless er-
ror.
Defense counsel have argued that this court should
adopt the view stated by the District Court for the
Northern District of California in U.S. v. Piner, No.
Cr.-78-023-WWS, March 17, 1978, N.D.Cal. The
district judge there held that upon the facts presented in
that case, the “exercise of the unrestricted discretion to
board any vessel at anytime as authorized by [14 U.S.C.
§ 98 (a)] was unnecessary to effective enforcement of the
Marine Safety Regulations, and thus unreasonable.” The
court held that the statute was subject to the search war-
rant requirements of the, Fourteenth Amendment. The
decision, of course, should be read in the light of its
facts. The vessel boarded was a private pleasure sail
boat (length or other specifications not disclosed)
observed sailing in San Francisco Bay at 6:30 p.m. on
January 12, 1978. The Coast Guard vessel boarded and
announced that it was a routine safety inspection. A
boarding officer saw what appeared to be large bags of
marihuana in the cabin below, and the persons on board
were arrested. There had been no suspicion of any viola-
tion of law or safety regulation, except that the Coast
Guard captain stated that one reason for boarding was
that the weather was such that it made a pleasure cruise
unlikely. The court considered these factors: (1) the vital
or non-vital nature of the governmental interest and
whether it is sufficient to justify at least some intrusive
procedure; (2) whether the procedure employed was
26a
“reasonable,” including whether there exists an effective
but less intrusive alternative procedure, and (3) whether
the procedure employed was in fact intended to advance
the supporting governmental interest or was a pretext
for some other interest. The court noted that the issue
there was solely the power of the Coast Guard to con-
duct ship board inspections in order to enforce regula-
tions for the promotion of safety of life and property on
the water under 14 U.S.C. § 2. The court said
“Moreover, since defendants were sailing a private
pleasure craft, only the inspection procedures directed at
private pleasure craft are in issue. The court will not
consider Coast Guard practices with respect to perhaps
more heavily regulated commercial vessels” (emphasis
added). In that connection the district court observed,
“The practice authorized by Congress and used in this
case was to board, at any time, any vessel upon the
water. The government has made no showing that the
exercise of such an unrestricted discretion is necessary to
effect an enforcement of the Marine Safety Regulations.
In particular, the government has not shown that requir-
ing boat owners to produce their craft for periodic safe-
ty inspections, much as many states now inspect
automobiles, would be an inadequate enforcement prac-
tice. Nor has the government shown that periodic,
perhaps even surprise, inspections (supported by a war-
rant issued upon a showing of administrative necessity)
at reasonable times and at dockside would be ineffec-
tive.” The court went on to say that dockside inspections
are precisely the practice contemplated by the Coast
Guard itself, quoting trom the United States Coast
Guard Boarding Manual, 1965 edition, which siates in
part, “Unless sound reasons exist to the contrary, large
vessels engaged in trade should be examined at the dock;
pleasure craft, when it will cause them the least inconve-
27a
nience; and commercial fishing vessels when it will not
cause their cargo to spoil or cause them delay in
reaching their markets . . . . [but the] routine examina-
tion of documents, papers, and equipment in the en-
forcement of the navigation laws is best done when the
vessel boarded is at anchor or at a wharf.” In a cursory
review of the 1977 Coast Guard Boarding Manual ‘a-
troduced into evidence in our case I was unable to find
that exact provision, but it does agree with the
testimony in this case given by Commander Ikens, Chief
of Intelligence, Seventh Coast Guard District. His
testimony was that large ships over 250 feet in length
can be inspected satisfactorily at dockside because such
large vessels are required to keep their safety equipment
in place and operable at all times, at the dock as well as
at sea. On the other hand, smaller vessels under 250 feet
in length are not required to keep their safety equipment
in readiness while in harbor, and therefore smaller
vessels must be boarded and inspected for safety equip-
ment while they are at sea. Therefore to the extent that
the decision by the district court in U.S. v. Piner was
based upon that factor, it is not applicable to our case,
and the boarding here would not be unreasonable from
that standpoint. The distinction between large and small
ships was not referred to in Piner, and must not have
been presented to the court. Furthermore it is correct
that small private pleasure crafts are subject to less
rigorous inspection procedures than larger vessels and
commercial vessels. The court in Piner also made note
of the fact that a border search was not involved there,
although the sail boat was inside the Golden Gate
Bridge. There was no showing of any movement of the
boat into the coastal waters or crossing a border. The
court also referred to U.S. v. Odneal, 565 F.2d 598 (9th
Cir. 1977); U.S. v. Warren, 550 F.2d 219 (Sth Cir.
28a
1977); and U.S. v. Stanley, 545 F.2d 661 (9th Cir.
1976), in addition to the Fifth Circuit cases cited earlier
in this memorandum upon the same question. In Odneal
the Coast Guard boarded a fifty-one-foot two masted
sailing sloop in U.S. territorial waters off southern
California, for a safety inspection and for registration
papers. A Customs patrol officer was on board the
Coast Guard cutter in addition to the captain of the cut-
ter. The captain observed that the sails were free and
were flopping back and forth, the lines from the sails
were dragging in the water and the mizzen mast boom
was unsecured and was swaying back and forth, all of
those creating a dangerous condition. The court held
that the hazardous conditions observed by the Coast
Guard authorized it to stop and detain the vessel for the
purpose of calling attention to the safety hazards and
for the purpose of checking the registration of the
vessel. Also, the Customs Officer noticed a strong odor
of marihuana coming from the yacht as the boarding
party pulled alongside the sail boat before boarding, and
the court held that this gave the Customs Officer in-
dependent grounds of prcbable cause to board and de-
tain the vessel. Marihuana was found on board and the
conviction of the persons on board was affirmed. Due
to the existence of probable cause to board and search,
the court refrained from deciding whether Section 98 (a)
constitutionally authorizes a boarding for inspection for
safety and documentation without probable cause. The
court said that it did not have to decide whether it
would agree or disagree with the approach taken by the
Fifth Circuit in Odom, Hillstrom, and One Forty-three-
foot Sailing Vessel, all supra. The Ninth Circuit held
that a “border search” authorized the boarding and
seizure of the vessel carrying marihuana, under the
authority of 19 U.S.C. § 1581 (a), and not pursuant to
29a
§ 98 (a) as in our case. The court considered a border
search to be an exception to the probable cause re-
quirements which the court would otherwise require in
searches under § 1581 (a). While the Ninth Circuit ap-
pears to be approaching a firm rule subjecting § 98 (a)
to the requirements of the Fourteenth Amendment in
the absence of probable cause or other justifications for
boarding, it is not yet explicitly so held with regard to that
statute. The Fifth Circuit has taken a positive stand that
warrantless boardings of vessels without probable cause
are authorized under § 98 (a). Furthermore, the facts of
the district court case of U.S. v. Piner and the reasons
given by the court for its ruling distinguish it from the
Fifth Circuit cases. This court concludes that the
governmental interest in making safety and documenta-
tion inspections — especially the necessity of inspecting
smaller vesels at sea for those purposes — is sufficiently
important to justify a warrantless boarding for safety
and documentation inspection, and thus outweighs the
privacy interests of the owners and occupants of such
vessels.
Defense counsel finally have argued that even if the
Coast Guard could constitutionally board the Lady
Ellen without probable cause for a safety and documen-
tation inspection, the evidence will show that such was
not the purpose of the boarding, but rather that the pur-
pose was to search for contraband narcotics and that the
safety and documentation inspection was a pretext,
citing U.S. v. Warren, supra, along with some
nonseagoing cases. U.S. v. Warren held that the original
authority to board the vessel was vitiated by the fact
that Drug Enforcement Administration agents and
Customs agents boarded the vessel along with the Coast
Guard officers and participated in the boarding and
search. Those agencies have no lawful authority to
#%
30a
board and search on the high seas, and the Coast Guard
has no lawful authority to delegate its authority to
them. Therefore the evidence derived from the efforts of
those agents was unconstitutionally obtained. Further-
more the court held that the crew was interrogated and
information was obtained from them leading to the
discovery of the marihuana in violation of their Miranda
rights. The court did not abrogate the seizure because of
any pretext by the Coast Guard. As a matter of fact, in
Odneal, the Ninth Circuit stated “The Coast Guard and
the Customs officer each had an independent justifica-
tion for a brief investigatory stop of the vessel. The fact
that they cooperated with one another in no way impairs
the justification for the stop. Neither agency was using
the other as a stalking horse.”
The final question for a decision is the standing of the
various defendants to challenge the Coast Guard’s
seizure of the Lady Ellen and its cargo of marihuana.
All of the defendants contend that they have standing to
assert the motions to suppress. The basic requirements
to establish standing are stated in Brown v. United
States, 411 U.S. 223 (1972). A defendant has standing
where (a) he was legitimately on the premises at the time
of the contested search and seizure; (b) alleges a pro-
prietary or possessory interest in the premises or a
possessory interest in the seized evidence; or (c) was
charged with an offense which includes as an essential
element the possession of the seized evidence at the time
of the contested search and seizure. The last category
confers “automatic standing” upon a defendant charged
with such an offense, as established in Jones v. United
States, 362 U.S. 257 (1959). A defendant with automatic
standing formerly had to undertake the embarrassing
and perilous step of alleging or offering evidence that he
3la
had possessory rights in the evidence at the time of
seizure, but that hazard was eliminated by Simmons v.
United States, 390 U.S. 377, 394 (1968). In the present
case possession of the marihuana is not an essential ele-
ment to be proved on the charge of conspiracy to im-
port marihuana or on the charge of importing
marihuana, and there is no automatic standing pursuant
to Jones.
Since defendants Harper and Rowe were crew
members present on board the Lady Ellen when the
marihuana was seized and were sharing in the possession
of it, they clearly have standing. Defendants David Ray-
mond Govus and David Ray Jenkins have filed identical
affidavits reading as follows: “I had a proprietary interest
in the vessel ‘Lady Ellen’ and the marijuana onboard
said vessel up to and through the search of the same and
until the seizure of the same.” Defendants John White
and James M. Burdine have filed identical affidavits
reading as follows: “That on or about the 26th day of
January, 1978, and at all times thereafter relevant to
Defendants’ Motion to Suppress, he maintained a
legitimate proprietary interest in the vessel ‘Lady Ellen’
and its cargo.” Defendant Govus called D.E.A. Agent
Johannesen as a witness during the hearing, and elicited
hearsay testimony that a person called “Sam,” was
known to be defendant Govus, owned a proprietary in
the Lady Ellen and its cargo. Govus himself testified
asserting a privacy interest in the house at Back Creek
and property in it, but offered no testimony about the
Lady Ellen and did not assert in his testimony a pro-
prietary or possessory interest in the vessel or its cargo.
Defendants White and Jenkins also testified, but failed
to assert any proprietary or possessory interest in the
Lady Ellen or its cargo. Defendant Burdine did not
testify.
32a
To challenge the claims of interest in the Lady Ellen,
the government introduced testimony and exhibits
through Eleanor H. Jones, United States Coast Guard
vessel documentation officer stationed at Elizabeth City.
Government exhibit No. 9 is a Consolidated Certificate
of Enrollment and License, the permanent Certificate
No. 92 of the vessel Lady Ellen, showing that the vessel
has been duly enrolled at the port of Mobile, Alabama
and that license is granted for the vessel to be engaged
in mackerel fishery for one year, and the license was
dated April 26, 1977 and signed by Marie K. Hathaway,
Documentation Officer at Mobile, Alabama. The Coast
Guard seal was affixed to the license. The Consolidated
Certificate of Enrollment and License (hereafter called
“License”) is given to the owner when issued. Coast
Guard regulations require that the License be kept on
board the vessel and be exhibited to Coast Guard
documentation officers and marine inspection officers
upon specified occasions. The License designated
Mobile, Alabama as the original home port. On the
reverse side of the License there is a Preferred Mortgage
Endorsement showing Lady Ellen, Inc. as mortgagor,
and a mortgage for $180,750.00 to the United States of
America through the Secretary of Commerce. That en-
dorsement is signed by Marie K. Hathaway, Coast
Guard Documentation Officer at Mobile, Alabama, and
bears the Coast Guard seal. On the face of the License
William A. Thompson, Jr., Bayou la Batre, Alabama, is
shown as president of Lady Ellen, Inc. and as master of
the vessel. The next entry on the reverse side of the
license is an Endorsement of Change of Master No. 1,
and shows that at the port of Mobile, Alabama on Oc-
tober 26, 1977 “Roy Smith, having taken the oath re-
quired by law, is at present master of the within-named
vessel,” in place of Wiiliam A. Thompson, Jr. The en-
33a
dorsement is signed by the same documentation officer
at Mobile. Directly beneath that endorsement is En-
dorsement of Change of Master No. 2, showing that at
the port of Mobile, Alabama on January 10, 1978,
“Paul J. Chapman, having taken the oath required by
law, is at present master of the within-named vessel” in
place of Roy Smith, again signed by the documentation
officer.
The witness Jones, Coast Guard Documentation Of-
ficer at Elizabeth City, testified that her office received
the license in the mail on January 20, 1978 contained in
an envelope with a letter from Mull and Sweet, a law
firm in Alabama. The next document chronologically
produced by Mrs. Jones is a General Index or Abstract
of Title, Coast Guard Form CG-1332, giving a title
history of the Lady Ellen. The abstract shows that the
vessel was built at Theodore, Alabama in 1977 by Quali-
ty Marine, Inc. for Lady Ellen, Inc.; that a purchase
mortgage for $180,750.00 dated April 26, 1977 was
given by Lady Ellen, Inc. to the United States of
America acting through the Secretary of Commerce, and
shows the recording data in the office at Mobile, and
also shows that the entire interest in the vessel was con-
veyed by the mortgage. The only other entry in the
abstract was that on January 10, 1978 the United States
as grantor gave to Lady Ellen, Inc. an instrument of
satisfaction of purchase mortgage in the amount of
$180,750.00 covering the entire interest in the vessel.
The recording data is also shown. Beneath those cer-
tificates is a certificate by Marie K. Hathaway,
Documentation Officer at Mobile, that the abstract,
“Issued . . . incident to a change in home port, is a true
abstract of title of vessel described above, as appears by
the records in this office.” Attached to the abstract is a
transmittal letter dated January 25, 1978 at Mobile,
7%
34a
Alabama, and signed by Marie Hathaway, Documenta-
tion Officer, and is addressed to Vessel Documentation
Officer, U.S. Coast Guard, Elizabeth City, N.C., and
reads as follows: “In accordance with the request of
John F. Sweet, Attorney at Law, 990 Edgewood
Avenue, NE, Atlanta, GA., there is enclosed an Abstract
of Title, cg-1332, in duplicate, covering the Oil Screw
Lady Ellen, official number 581674, issued under the provi-
sions of 46 CFR 67.47-27 (46 USC Sec. 18, C.F.R. U.S.C.
926) for change of home port to your port.” Underneath
the signature appears “Remarks: Outstanding Marine
Document: P.E. 92 issued at Mobile, AL. on 4/26/77.”
Underneath that it is shown that a copy is directed to
“John F. Sweet.” The certificate of the documentation
officer and her transmittal letter to the Coast Guard at
Elizabeth City, with a copy to the attorney, shows that
the abstract was received by the Coast Guard at
Elizabeth City from the documentation officer at Mo-
bile. The change of home port from Mobile to Elizabeth
City is also shown by the two remaining documents pro-
duced by Mrs. Jones as government exhibit 9. The first is
Coast Guard Form CG-1319, Designation of Home Port
of Vessel. It is dated Januarv 27, 1978, addressed to the
documentation officer at Elizabeth City, North Carolina
and designates Elizabeth City as the home port of the
Lady Ellen. It states that the vessel business of the owner
Or Owners named below will be conducted at and from
Box 435, Wanchese, North Carolina, and it is signed
Walter Poole, President of Lady Ellen, Inc. The other
document is Coast Guard Form CG-1259, Oaths on
Registry, License, or Enrollment and License of Vessel.
On the face of the form is the oath of officer or agent of
incorporated company. It shows the port of Elizabeth City,
N.C.; that the vessel is engaged in fishing service; that
the owner is Lady Ellen, Inc., and Walter N. Poole, as
35a
president; the address of the corporation being Box 435,
Wanchese, North Carolina; that the state of incorpora-
tion is Alabama; that the name of present master is Paul
J. Chapman, born at Monroe, North Carolina on July
21, 1944; and the signature of Walter Poole is attested
on January 27, 1978 by Vera Mitcheil, notary public of
the State of Georgia. On the reverse side of the form is
the master’s oath showing Paul J. Chapman as name of
master with the same Wanchese address, signed by Paul
J. Chapman, and attested January 27, 1978 by Vera
Mitchell, notary public. Those last two documents were
received in the Coast Guard Office at Elizabeth City on
February 13, 1978 in an envelope from the attorneys,
presumably Mull and Sweet at Atlanta. Although Mrs.
Jones stated earlier in her testimony that the license was
received by attorneys in Alabama, I find from the
transmittal letter from the documentation officer at
Mobile attached to the Abstract of Title that the at-
torneys are located at Atlanta, Georgia.
Defense counsel challenged the authenticity and ad-
missibility of the foregoing documents based upon Mrs.
Jones’ testimony that she had no personal knowledge of
the execution or filing of any of the documents; that the
documents had been received by her office in the mail in
the ordinary course of business; and that the Coast
Guard documentation office at Elizabeth City had not
assigned a docket number to the file and had taken no
action upon the documents. She explained the lack of
action by her office through her testimony that she was
awaiting further communications from the owners, in-
cluding the receipt of the instrument of satisfaction of
the mortgage, before taking official action; and that on
February 13, 1978, the same day she received the last
two documents from the attorneys in Atlanta, Coast
Guard headquarters at Norfolk, Virginia notified her of
36a
the seizure of the Lady Ellen and instructed her to take
no action regarding it.
On the other hand, I find that the only documents
which lack official authentication are the two documents
received from Atianta on February 13, and dated
January 27, 1978, designating Elizabeth City as the
home port and Paul J. Chapman as the new master.
Even those two documents are not necessarily rendered
inadmissible by lack of official authentication. They are
applications to the Coast Guard transmitted to the
documentation office for filing pursuant to regulations.'
They are not evidence of any substantive fact, but only
of the fact that such applications for the purposes stated
were received by the Coast Guard at Elizabeth City.
Substantiating evidence for their transmission to
Elizabeth City is contained in the transmittal letter of
the Coast Guard from Mobile to Elizabeth City attached
to CG-1332, Abstract of Title, stating that a change of
home port was the reason. The documents tending to
show record title and ownership of the Lady Ellen are
the License and the Abstract of Title, both of which
were authenticated over the signature of the Coast
Guard documentation officer at Mobile and bearing the
Coast Guard seal. A chain of custody of the license
document is unnecessary, because it is delivered to the
owner at the time of issuance, and the Coast Guard
regulations, including those printed on the envelope in
which the license was enclosed, require that the owner
retain it and keep it on board the vessel at all times ex-
cept when it is in the possession of documentation or in-
spection officers or at other specified times. The license
was transmitted to the documentation officer at
‘All these documents are also authenticated by Rule 901(7), Fed.
Rules of Evidence. The License and the Abstract of Title are ad-
missible under Rule 803(8) and (15).
37a
Elizabeth City, as required, in connection with the
change of home port designation from Mobile to
Elizabeth City. The transmittal letter from the Coast
Guard at Mobile to the documentation officer at
Elizabeth City sufficiently accounts for its receipt in
Elizabeth City. On the other hand, the applications
dated January 27 and received in Elizabeth City on
February 13 are not necessary documents in the history
or abstract of the vessel or in any chain of title. It is
immaterial that no action was taken by the documenta-
tion officer at Elizabeth City respecting any of these
documents, in order for them to be received in evidence
through their original and official authentication by the
documentation officer at Mobile.
I therefore find that record title to the Lady Ellen, in-
sofar as the license and abstract constitute proof of
record title, which is not decided at this time, rests in
Lady Ellen, Inc., an Alabama corporation. This is not
to say that defendants Burdine, Govus, Jenkins and
White, who filed the affidavits of proprietary interest
recited above, may not have a proprietary interest in the
Lady Ellen and its cargo, as may any or all of the
defendants. It is possible that the statement under oath
that the corporation was the sole owner of the Lady
Ellen on April 26, 1977, as shown in the License, was
false, and that the corporation owned less than the en-
tire interest in the vessel, or no interest at all. It is possi-
ble that these four defendants were the sole owners, or
shared ownership with the corporation or with other un-
named persons, or both. It is also possible that subse-
quent to the date of the license, April 26, 1977, the cor-
poration transferred all or part of its interest to these
four defendants or to other persons. In any of those
events, it is apparent that serious irregularities occurred
7%
38a
with respect to documents submitted to the Coast
Guard.
In order for a defendant to establish standing, he
must assert the grounds for his claim of standing at the
suppression hearing. Brown v. United States, supra;
United States v. Boston, 510 F.2d 35 (9th Cir. 1974);
United States v. Prueitt, 540 F.2d 995 (9th Cir. 1976);
and United States v. Williams, 536 F.2d 810 (9th Cir.
1976). If a defendant fails to assert his proprietary or
possessory or privacy interest at the hearing, he has lost
his opportunity. As the court said in Boston, “We now
know the truth to be that appellant at the time of
seizure did in fact claim as his the heroin seized. It was
on that basis that he was convicted. But truth as it
emerges from trial cannot reach backward to confer
standing to move to suppress. Rather it is the showing
made by the defendant at the time he moves to suppress
the counts . . . his concession . . . cannot now be used
against him at trial . . . but it is a concession that must
be made.”
It is true that a defendant need not take the witness
stand and testify to his grounds for standing if he has
presented an undisputed affavit asserting it. However
the affidavit must state facts sufficient to demonstrate a
genuine basis for standing, and a general or conclusional
affidavit is not enough. In United States v. Williams,
supra, the court said “As the government conceded dur-
ing oral argument, an undisputed affidavit, or un-
disputed affidavits, alleging facts that demonstrate a
legitimate proprietary or possessory interest in the
premises searched, could establish one’s standing
without his being required to testify. But the govern-
ment contends that it diu, in fact, challenge appellant’s
affidavit and thereby put him to proof of his declara-
39a
tions.” The court in Boston also said “Neither jury ver-
dict nor governmental contention can serve to relieve the
defendant of his burden in those cases where automatic
standing does not serve to relieve him.”
Defendants urged the court to accept a general and
nonfactual affidavit like those filed in this case as a
satisfactory showing of standing, as they say was done
in United States v. Prueitt, supra. But the Ninth Circuit
in that case did not rely upon an affidavit alone. The
court stated, 540 F.2d at 1005, “The record indicates
that only one defendant, Robert Lee Prueitt, asserted a
possessory interest over the evidence seized at the mo-
tion to suppress (R.T. 226). Later, Prueitt filed an af-
fidavit that ‘at the time of the seizure of the marihuana
that I had a possessory interest in said marihuana and
dominion and control over the same.’ (See C.T. 171-72)
The other defendants failed to allege a possessory in-
terest in that which they sought to suppress. It was im-
perative that this concession be made. By failing to meet
this burden, all defendants except Prueitt do not have
actual standing.” Prueitt’s grounds for standing were
first asserted by him at the suppression hearing. In
Williams, supra, the Ninth Circuit said that an un-
challenged affidavit cannot establish standing, when it
said that the government by challenging appellant’s af-
fidavit, thereby put him to proof of his declarations.
The court did not have to rest its decision on that
ground, because the court held that even if the affidavit
were found to be unchallenged, it would not be suffi-
cient to establish the required standing. This court has
seen no decision accepting solely a disputed affidavit to
establish standing.
Defense counsel argue strenuously that even though a
defendant’s statement that he owned or had possession
**
40a
of the contraband at the time of seizure cannot be used
against him at trial, Simmons v. U.S., supra, that Fifth
Amendment infringements might result, as was claimed
in Harris v. New York, 401 U.S. 222 (1970), if the
government should use the statement on cross-exam-
inaticn to impeach the defendant. I believe the Supreme
Court’s opinion in that case applies also when the state-
ment is made by a defendant claiming rights under the
Fourth Amendment just as under the Fifth Amendment.
Furthermore, problems of that kind can well be handled
by the trial judge.
Since the government has satisfactorily challenged the
affidavits submitted by defendants Govus, Jenkins, Bur-
dine and White, they were required to assert their claims
at the hearing, which they did not do. While a witness
called by Govus testified to some hearsay that a man
named Sam owned a proprietary interest in the Lady
Ellen and its cargo, that would be too general to meet
the requirements set out by the cases discussed above.
He had an opportunity to assert his claim when he was
testifying. The affidavits submitted by defendants
Jenkins, Burdine, and White suffer from the same defi-
ciency. The court concludes that none of these four
defendants have standing based upon the three affidavits
and the inadequate hearsay testimony elicited from
witness Johannesen on behalf of Govus. Nevertheless,
some language in Williams, supra, intimates that the
trial judge may have discretion to hear testimony on
standing before trial. Any defendants who wish to
substantiate a claim of standing might consider making
such a request.
Even if we assume arguendo that contested affidavits
would be acceptable to establish standing, these af-
fidavits and the testimony about Govus do not state any
4la
facts giving rise to a reasonable expectation of privacy,
as required by Boston and Williams, both supra. Pro-
prietary and possessory rights must be such as would
create such an expectation of privacy. Not all holders of
nominal title to property have such a connection with
the property as to create such rights. Jones v. United
States, supra, said that traditional concepts of property
law “ought not to be determinative in fashioning pro-
cedures ultimately referrable to constitutional
safeguards.” In U.S. v. Archbold-Newball, 554 F.2d 665
(Sth Cir. 1977), two defendants argued a possessory in-
terest in marihuana which they had purchased, and had
shipped a large quantity of it to two other persons
several months before the seizure, and had only received
a small partial payment for it, and still retained a pro-
prietary interest in the drugs at that time. The court said
that in view of the shipment by defendants of the drugs
to the other persons, it was “difficult to discern what
privacy interest of the appellants was violated by the
government search.” In U.S. v. Johnson, 456 F.2d 295
(Sth Cir. 1972) Johnson gave one Langner four hundred
and fifty dollars to go to Mexico and buy marihuana
and bring it back to him, and provided Langner with
the vehicle for use in the importation. Langner was ar-
rested on his way back and the marihuana seized, and
Johnson claimed standing to contest the seizure, as
owner of the drug with rights of possession. The Fifth
Circuit denied standing to Johnson. He had never had
possession of it and the seizure was before he had seen
it.! Thus owners of property are not automatically en-
titled to an expectation of privacy concerning it. Brown
v. U.S., supra, said “Fourth Amendment rights or per-
sonal rights which, like some other constitutional rights,
‘Our defendants (other than the crew) had never seen the
marihuana according to the evidence, when it was seized at sea.
42a
may not be vicariously asserted.” A similar case is U.S.
v. Hunt, 505 F.2d 931 (Sth Cir. 1974), cert. den. 421
U.S. 975. Although the court regarded the arrangement
more of an independent contractor relationship than a
purchase. U.S. v. Williams, supra, clearly shows the
necessity of alleging sufficient facts to show the nature
of the rights of the defendant in the property.
Finally, all defendants claim standing to challenge the
seizure of the Lady Ellen, not based upon proprietary or
possessory rights, but upon their argument that the in-
dictment itself confers standing upon them, and second,
that they were victims of a continuing search directed at
each of them.
Their first argument is that the government has alleg-
ed in the indictment that all of the defendants conspired
together over a period of ten months ending on the date
of their arrest on February 5, 1978 to import the
marihuana that it had seized on the Lady Ellen at sea.
They interpret the indictment to show that all of the
defendants were business partners in a common or joint
venture that had a proprietary or possessory interest in
the Lady Ellen and the house on Back Creek and the
evidence found inside them, and that as business part-
ners they had common interest in the property belonging
to the joint venture, and that they had in common a
reasonable expectation of privacy in them regardless of
whether they were nominal titleholders. They say further
that the indictment alleges that the business venture held
the proprietary or possessory interest in the vessel and
house right up to the time of the searches at Back
Creek, when the property was still being used in the ser-
vice of the joint venture in which the defendants were
allegedly participating.
43a
Defendants cite several cases in support of their first
argument: Mancusi v. DeForte, 392 U.S. 364 (1968) and
Baker v. United States, 401 F.2d 958 (D.C.Cir.1968), = _—
Those cases involved the use of business offices by
business associates, a sharing of possessory interest in
property. It is not to question the authority of those
decisions to say that they do not reach far enough to
create a reasonable expectation of privacy on the Lady
Ellen or in the house solely because of the common in-
terest alleged in the indictment. Defendants also cite
several cases in which the defendant had permissive use
of premises or shared the use of premises with another
and was legitimatley on the premises at the time of the
search, or was the owner of property seized on the
premises in his absence. Jones v. United States, 362
U.S. 257 (1960); Simmons v. United States, 390 U.S.
377 (1968); and United States v. Jeffers, 342 U.S. 48
(1951). Those decisions, however, come clearly within
the standard set by Brown v. United States, 411 U.S.
223, 228 (1973), quoted earlier, and do not support this
argument of defendants.
The second ground for the motion by these remaining
defendants is based upon the argument that they were
the victims of a continuing search carried out by the
government and directed against them from the time of
the initial seizure of the Lady Ellen at sea; that the
Coast Guard knew that such smuggling operations are
carried out by more people than those on the vessel;
that the government used the vessel, the crew and the
marihuana as a “lure” to catch the other people involv-
ed. Defendants’ briefs state “Thus, the search was
directed at more than the crew on the vessel. The of-
ficers conducted the search with the objective of catch-
ing at least the persons who would participate in the
y
44a
unloading, even though at the time of the search, they
did not know the identity of those persons (emphasis ad-
ded).” The authorities advanced by defendants for that
argument are Jones v. United States, 362 U.S. 257
(1959) and United States v. Cobb, 432 F.2d_716 (4th
Cir. 1970). In Jones v. U.S., Jones was arrested in an
apartment belonging to a friend of his named Evans,
who had given him the use of the apartment and the
key. The officers were executing a warrant to search for
narcotics, and found narcotics in a bird’s nest in an
awning just outside a window of the apartment. Shortly
before that an officer outside the building had seen
Jones put his hand on the awning. Jones admitted that
the narcotics were his. At the motion to suppress the
narcotics, Jones testified about the key and his use of
the apartment by permission of Evans; that his home
was elsewhere, that he had a suit and shirt at the apart-
ment, paid nothing for its use, and that he had slept
there “maybe a night.” The Supreme Court decided that
principles of property law, and distinctions between
lessee, licensees, invitees, and guests, should not be the
sole determinative in deciding upon the reasonableness
of searches and seizures under the Fourth Amendment.
The Supreme Court said “anyone legitimately on
premises where a search occurs may challenge its legality
by way of a motion to suppress, when its fruits are pro-
posed to be used against him.”
The Fourth Circuit followed Jones v. U.S., supra, in
United States v. Cobb, 432 F.2d 716 (4th Cir. 1970), in
which the officers suspected Cobb of transporting
nontax-paid liquor. The officers had Cobb under
surveillance at a time when he was occupying an
automobile owned by another man who was not under
any kind of suspcicion. The officers arrested Cobb away
from the automobile, took him back to it, and with an
45a
invalid search warrant they searched the car and found
the illegal whiskey. The court held that Cobb was the
victim of the search because it was directed at him, and
even though he had no proprietary or possessory interest
in the automobile, he had standing. Defendants’ brief in
discussing U.S. v. Cobb, quoted the Fourth Circuit as
follows: |
“The distinction is thus made between the
situation where the person moving to suppress
was the person against whom the search was
directed and that which arises when the chal-
lenged evidence was procured ‘as a consequence
of a search or seizure directed against someone
else.’ In the first case, the person against whom
the search was directed has standing to attack
the validity of the search; in the second, he has
not.”
Their brief then mentions two cases cited by the court as
examples of the two types of searches, Stassi v. United
States, 410 F.2d 946 (Sth Cir. 1969) and United States v.
Graham 391 F.2d 439 (6th Cir. 1968). The Fourth Cir-
cuit had actually cited Baker v. U.S., supra, the “Bobby
Baker” case, as an example of a search which was
directed against the moving defendant, giving him stand-
ing. Both Stassi and Graham involved searches that
were not directed at the defendant moving to suppress
and they were denied standing.
We must then examine the facts in evidence in this
hearing and apply to them the principles declared in
Jones v. U.S. and U.S. v. Cobb, bearing in mind that
the quotation from Cobb given above was quoted from
the Supreme Court’s decision in Jones, making the
distinction between “one against whom the search was
directed, as distinguished from one who claims prejudice
46a
only through the use of evidence gathered as a conse-
quence of a search or seizure directed at someone else.”
At the time of the initial seizure of the Lady Ellen the
government had no suspicion of any criminal activity
relating to the vessel, and at that time the government
only learned of Breslin, Harper and Rowe. When they
began cooperating with the government and were return-
ed to the Lady Ellen to participate in a controlled
delivery of the marihuana, they were in no different a
status than the multitude of persons involved in criminal
enterprises who are apprehended in the early stages of
the undertaking, and then cooperate with the officers by
leading them to their confederates. The evidence does not
show that the government learned the identities of any
other participants in the smuggling operation until the
arrival of the Lady Ellen at Back Creek and the raid at
the landing site. The defendants’ brief states that even
during the “continuing search” the officers did not know
the identities of those persons. The first thing the of-
ficers had to do when they arrested the remaining defen-
dants at Back Creek and the surrounding area was to
ascertain their identities. Defendants contend that the
continuing search was to locate and identify defendants
and seize evidence, all of the same being tainted by the
“fruit of the poisonous tree,” the initial alleged unlawful
seizure of the Lady Ellen; and that the continuing search
ended with the unlawful arrests of the defendants. But
that argument is too tenuous to meet the requirements
laid down by the Supreme Court in Brown v. United
States, supra.
In fact, according to the evidence, the government
had information from Paul Breslin, that various persons
were waiting to unload the marihuana, and that the
unloading site would be somewhere along the in-
47a
tracoastal waterway in Carteret or Craven counties. It
was only because of aircraft surveillance of the Lady
Ellen that the officers learned of her progress through
Beaufort Inlet and northward along the waterway, and
air surveillance informed the officers on ground when
the Lady Ellen was met by small boats and began
unloading, and the officers on ground were directed to
the landing area by the aircraft. The search was in no
way Girected at these named defendants, but rather was
directed at the persons who arrived at the scene in ac-
cordance with their own mutual plan to carry out the
unloading. These circumstances are far removed from
the search and seizure in U.S. v. Cobb, supra, and the
other decisions relied on by defendants. U.S. v. Graham
and Stassi v. U.S., both supra, and mentioned earlier,
are analogous decisions. In Graham the officers opened
an automobile door and got the serial numbers of two
cars proven to have been stolen. The two defendants
who moved to suppress were some miles away from the
place of the search and claimed no interest in the cars
which were in the possession of their codefendant at the
time. The Sixth Circuit denied standing saying “ap-
pellants were not ones ‘against whom the search was
directed,’ nor were their rights of privacy impaired in
any manner.” Stassi involved a border search of a suit-
case in the custody of a common carrier for transit,
located in the baggage section of a bus station over
three hundred miles from the place where it was to be
delivered to appellant Stassi through his front man, ac-
cording to the decision. Stassi claimed no interest in the
suitcase or its contents or in the premises on which the
search was conducted, and he was nowhere in the vicini-
ty at the time. It was months after the search before the
government learned that appellant had any connection
with the smuggling operation. The Fifth Circuit denied
48a
standing. Thus, a person separated from the seized con-
traband by distance or by a lapse of time, who does not
claim a proprietary or possessory interest in the contra-
band or the premises, has no standing. Likewise, in
Brown v. U.S., supra, the stolen goods were seized in a
warehouse, and the moving defendants were not there,
and claimed no interest in the goods or the warehouse.
The charges against them were limited to acts committed
before the day of the search. The government’s case
against them did not depend on their possession of the
seized evidence at the time of the seizure. The Supreme
Court denied standing. The stolen goods seized had been
transported and sold by them to a codefendant two
months before the challenged search. The search was
not directed at them.
Accordingly, based on all of the foregoing findings, I
conclude that the Coast Guard lawfully boarded the
Lady Ellen for a safety and documentation inspection,
and thereafter had probable cause to search for the
marihuana, and that the seizure of the vessel and the
marihuana was lawful; that defendants Harper and
Rowe have standing to challenge the seizure of the vessel
and the marihuana; and that none of the other defen-
dants have such standing. I recommend that these mo-
tions to suppress all evidence relating to the Lady Ellen
and its cargo be denied.
This 16th day of June, 1978.
/s/ Logan D. Howeli
LOGAN D. HOWELL
UNITED STATES MAGISTRATE
49a
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
OF NORTH CAROLINA
NEW BERN DIVISION
GARY REGAN TALBERT, et al.,
UNITED STATES OF AMERICA, )
)
Plaintiif |) NO. 78-08-CR-4
)
VS. )
)
DONALD ALFRED BLACK, ) ORDER
HERBERT FRANKLIN CLARK, _)
)
)
)
Defendants
All defendants in this action have moved to suppress
evidence obtained as a result of the initial search and
seizure of the Lady Ellen on the high seas by the United
States Coast Guard. In an extensive memorandum of
decision, United States Magistrate Logan D. Howell has
recommended denial of these motions. Upon review of
the record, the memorandum of the Magistrate, and the
objections lodged by the parties, the court concludes
that the line of Fifth Circuit authority relied on by the
Magistrate in sustaining the search and seizure allows
the admissibility of the evidence at trial. United States v.
Odom, 526 F.2d 339 (Sth Cir. 1976); United States v.
Hillstrom, 533 F.2d 209 (Sth Cir. 1976); United States v.
One 43-Foot Sailing Vessel. 538 F.2d 694 (Sth Cir.
1976); United States v. Warren, 550 F.2d 219 (Sth Cir.
1977).
50a
Marshall v. Barlow’s, Inc., 98 S.Ct. 1816 (1978), does
not alter this conclusion. Rather than layiig down a
blanket rule requiring a warrant for every administrative
search by a government official, Barlow’s cautioned that
“(t]he reasonableness of a warrantless search, however,
will depend upon the specific enforcement needs and
privacy guarantees of each statute. Some of the statutes
cited apply only to a single industry, where regulations
might already be so pervasive that a Colonnade-Biswell
exception to the warrant requirement could apply.” At
1825. Commercial shipping is such an enterprise. Since
the early days of the republic federal officials have had
the authority to board and inspect American flag ships.
See Carmichal, At Sea With the Fourth Amendment,
32 U.Miami L.R. (1977). The historical origins of this
practice suggest that those who choose to sail under the
American flag have no justifiable privacy interest that
bars these intrusions. Such regulatory inspections have
their basis in the international law of the seas that re-
quires each nation to carefully maintain the navigability
and safety of its own commercial fleet as a condition for
non-interference by other nations. Cf. United States v.
One 43-Foot Sailing Vessel, 405 F.Supp. 879 (S.D.Fla.
1975), aff'd, 538 F.2d 694 (Sth Cir. 1976). The efficiency
of the regulatory program would be greatly undercut if
action were stalled until an “administrative” search war-
rant could be procured from a land-based judicial of-
ficial located hours and miles away. Accordingly,
Barlow’s does not require that Coast Guard searches
pursuant to 49 U.S.C. § 89(a) be authorized by warrant.
5la
Defendants’ motion to suppress is denied for the
reasons stated above and in the Magistrate’s memoran-
dum which is incorporated herein.
SO ORDERED.
/s/ F. T. Dupree, Jr.
F. T. DUPREE, JR.
UNITED STATES DISTRICT JUDGE
July 3, 1978
52a
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT
OF NORTH CAROLINA
NEW BERN DIVISION
[Filed June 20, 1978
John R. Whitty, Clerk
U.S. District Court
E. Dist. No. Car.]
UNITED STATES OF AMERICA )
)
Vv. )
)
DONALD WINSTON HARPER ) No. 78-08-01-CR-4
MICHAEL BENJAMIN FORBES ) No. 78-08-02-CR-4
JOHN WHITE, ) No. 78-08-03-CR-4
a/k/a Leroy J. Edwards, )
a/k/a Roy Edwards )
DONALD ALFRED BLACK ) No. 78-08-04-CR-4
HERBERT FRANKLIN CLARK ) No. 78-08-05-CR-4
DAVID RAY JENKINS ) No. 78-08-06-CR-4
JAMES MERRILL BURDINE _) No. 78-08-07-CR-4
RICHARD LEWIS JACKSON _) No. 78-08-08-CR-4
DAVID RAYMOND GOVUS, ) No. 78-08-09-CR-4
a/k/a Sam, )
a/k/a Melvin Hawkins )
PAUL JEROME BRESLIN ) No. 78-08-10-CR-4
PETER FORBES ) No. 78-08-11-CR-4
ROBERT McNEILL HERRING ) No. 78-08-12-CR-4
NEIL WILSON ROWE ) No. 78-08-13-CR-4
GARY REGAN TALBERT ) No. 78-08-14-CR-4
MEMORANDUM AND RECOMMENDATION
ON MOTIONS TO SUPPRESS THE SEARCHES
AND SEIZURES AT BACK CREEK
All defendants have moved to suppress all of the
evidence gathered by the government as a result of its
second seizure of the Lady Ellen and the marihuana on
53a
board at Back Creek, and as a result of its seizures of
evidence and marihuana at the dock, and in a storage
shed at the dock, vehicles parked on the premises adja-
cent to the dock, and in the house nearby on the same
premises, as well as in small boats next to the dock.
Defendants contend that these searches and seizures
violated their rights under the Third, Fourth, and Four-
teenth Amendments and under 18 U.S.C. § 1385. These
and numerous companion motions were the subject of
an evidentiary hearing over a period of three and one-
half weeks. The facts which are pertinent to the deter-
mination of these motions will be summarized.
The events at Back Creek in Carteret and Craven
Counties beginning before dawn on February 5, 1978
represented the second act in a drama which began nine
hundred miles away in the Atlantic Ocean on January
26 when the Coast Guard boarded and seized the Lady
Ellen in Mona Passage, as related in the court’s separate
opinion dealing with that seizure, and which should be
referred to insofar as any of its findings and conclusions
should be applicable to these motions. As described in
that opinion, the master of the vessel, Paul Breslin, and
the two crew members, defendants Harper and Rowe,
agreed to cooperate with the government and participate
in a controlled delivery of the marihuana on the Lady
Ellen to its destination in the United States. The Coast
Guard, the Customs Service, and the Drug Enforcement
Administration cooperated in the planning of the con-
trolled delivery, with the Drug Enforcement Administra-
tion directing and coordinating the effort. The Coast
Guard Cutter Alert escorted the Lady Ellen in convoy
most of the way, until aerial surveillance could be com-
menced from the shore. D.E.A. agent Jimenez and
Customs agent Martinez were flown to Wilmington
before the convoy reached North Carolina to meet with
54a
the group of officers from those agencies, as well as
North Carolina State Bureau of Investigation officers,
State A.B.C. Officers and deputy sheriffs from Carteret
and Craven Counties. Breslin, Harper, and Rowe were
returned to the Lady Ellen for the last part of the
voyage, and on Saturday night, February 4 the Lady
Ellen, with Breslin again in command, passed through
Beaufort Inlet at approximately nine p.m. and proceed-
ed northward along the intracoastal waterway. The
vessel was under observation by government aircraft as
it steamed along the waterway.
During several days of the voayage agents Jimenez
and Martinez had many hours of conversations with
Paul Breslin in which he informed them about the
voyage to Columbia to pick up the marihuana and the
plan to deliver it to an unloading site in North Carolina.
Through Breslin the D.E.A. and the other two services
learned that an unspecified number of other persons
would be waiting prepared to unload the marihuana at
one of several possible landing places. The officers knew
that there were forty-two thousand pounds of mari-
huana to be unloaded, and had learned from Breslin
that several large trucks would be at the landing site to
remove the marihuana.
With that much information from Breslin about the
plan to unload the marihuana in the general area of the
intended unloading site, the combined force of law en-
forcement officers had a briefing session at Wilmington
Friday afternoon and then separated and went to two or
more hotels in Carteret County to await information
about the arrival of the Lady Ellen.
At approximately three thirty a.m. on February 5 a
message was received at law enforcement headquarters
in the Fisheries Resources Department Building at
55a
Morehead City that their lookout boat may have been
spotted, and orders were given for the officers to pro-
ceed by automobile toward the general area of Back
Creek. The aircraft overhead reported that the Lady
Ellen had turned from Adams Creek into Back Creek
toward the shore, and that one or more small boats ap-
proached the vessel and several persons from the boats
boarded the Lady Ellen, and that the small boats began
to depart the Lady Ellen loaded with bales, and pro-
ceeded to the dock on the premises referred to earlier
where the empty trucks were waiting.
The ground officers were traveling north in their
auitcmobiles on highway 1300, the only paved road in
the area, not knowing just where they were supposed to
go. Some of the cars got lost on dead-end dirt roads,
but as the operation focused on the landing site and the
aircraft observed the loaded boats approaching the
dock, the pilots were able to radio messages to the
automobiles giving them better directions to the area.
D.L.A. agents Hinchman and Rousseau and several
North Carolina S.B.I. agents reached the premises by a
dirt road, the only access to the premises and dock.
Wher they got ow of their cars no one was in sight
around the dock. Agents Hinchman and Rousseau
began looking for suspects on the premises toward the
house two or three hundred yards away. The state of-
ficers went to the dock and saw small boats ladened
with bales of a substance later determined to be
marihuana, and three large trucks backed up to the
water’s edge, and also a loading ramp. There were also
several smaller camper pickup trucks. They observed
that the inside of the trucks were lined with a black
plastic held in place with gray duct tape. As they were
searching the area they discovered a man later identified
as Peter Forbes hiding near the dock lying face down in
56a
the marsh grass. Forbes was taken to the storage shed
on the dock and handcuffed.
Meanwhile agents Hinchman and Rousseau had found
no one on the premises or in the woods, and at approx-
imately 5:00 A.M. they approached the house and notic-
ed that light was showing through the blinds in the front
rooms, and they could see forms moving back and
forth. They walked up to the steps of the small front
door stoop and both knocked loudly on the door, and
there was some kind of response from within the house.
At this point the evidence is in dispute. Passing by for
the moment what happened at the time of entry, the of-
ficers did enter the front room and saw three men
before them in the room, who were later shown to be
defendants Richard Jackson, David Jenkins, and John
White. Two of the men were sitting on sofas in front of
which was a coffee table, and on the table the agent saw
various electronic devices, a police scanning radio
receiver, a CB transmitter and receiver, and a power
booster. Hinchman heard law enforcement transmissions
being received on the scanner.
The three men were wearing heavy work clothes and
heavy long rubber boots. Two pairs of work gloves were
in sight, and duct tape similar to that seen in the truck
fastening the plastic liner, and a roll of duct tape on a
table. The officers asked all three men for identification,
and two of them furnished identification. Mr. White
was asked to produce something that was bulging in his
pocket, and he handed over a wallet from which the of-
ficer read the identification “Leroy Joseph Edwards.” At
that point Hinchman told all three that they were under
arrest. The men were searched and the officers read
them their Miranda rights. Other officers came in and a
search was made of the rest of the house to learn
57a
whether any other persons might be hiding, a search of
any area large enough for a man to hide in. Then the
three defendants were taken to the storage shed and
placed in custody there along with Peter Forbes, until
officers could transport them to headquarters at the
Fisheries Building for routine processing, and then to
New Bern for initial appearances before the federal
magistrate C.K. McCotter, Jr.
Meanwhile, Hinchman remained in the front room of
the house to secure it and prevent any unauthorized per-
sons from entering and prevent any searches to be made
of the house until a search warrant could be obtained. It
was quite cold that morning and several of the officers
would come into the house to stay warm for a while,
and were in and out during the day.
At approximately seven tnirty A.M. Carteret County
Deputy Sheriff Gerald Smith left the house and saw a
man walking on the road who was later identified as
defendant Benjamin Forbes. He was wearing heavy
work clothes and long rubber boots like those worn by
the men in the house. Smith told Forbes to get into the
car and Smith drove to the house and turned him over
to D.E.A. agent Dorsey, who questioned him concern-
ing his identity. He told Dorsey who he was and Dorsey
asked him where he had been, his reply being that he
had spent all night at Morehead City. Dorsey learned
that he lived in the house, and placed Forbes under
arest.
Returning to the movements of the Lady Ellen after
its unloading operation was interrupted by the aircraft
and helicopter at approximately four A.M. that mo:n-
ing, a Customs Service patrol boat began pursuing the
vessel north on Adams Creek as it approached the
Neuse River, and drawing close, ordered the vessel to
58a
heave to for a boarding party. When the officers board-
ed the vessel they placed everyone on board under arrest
and read them theirMiranda rights and seized a large
amount of marihuana still on board. The defendants
who were arrested on board were identified as Donald
Harper, Donald Black, Herbert Clark, James Burdine,
David Govus, Paul Breslin and Neil Rowe. The patrol
boat and the Lady Ellen proceeded to New Bern where
the defendants were later taken before Federal
Magistrate C.K. McCotter, Jr. for initial appearanaces.
First, the defendants contend that all searches,
seizures and arrests in the Back Creek area were unlawful
because they stemmed directly from the allegedly
unlawful seizure of the Lady Ellen in Mona Passage,
and thus should be suppressed as “fruit of the poisoned
tree.” But that issue was decided against the defendants
in the court’s separate opinion dealing with the Lady
Ellen, and that argument is foreclosed to them now. Se-
cond, they contend that the second seizure of the Lady
Lilen and the arrests of defendants on board was invalid
because Breslin, Harper, and Rowe had been arrested
and were no longer part of any conspiracy, and their ac-
tions and statements could not be used to ensnare the
other defendants, as I understand the contention. But as
pointed out in the court’s opinion dealing with the Lady
Ellen, it is not unusual in case of a large conspiracy for
some members to be arrested early in the course of the
conspiracy, and for them to cooperate with the
authorities in catching the other members. That is what
happened here. There was no entrapment, since the
government did not know the other members and ob-
viously did nothing to entice them into the trap. That
contention is without merit.
The next question is the lawfulness of the raid on the
Back Creek premises, the entry into the house and ar-
59a
rests of the defendants there, and the final search of the
house. To begin with, the law enforcement agencies had
known for several days that the Lady Ellen bearing
twenty tons of marihuana was heading for a landing in
North Carolina waters. Information from Breslin had
narrowed the possibilities to a stretch of the intracoastal
waterway several miles in length. Information from
Breslin was that small boats would off-load the
marihuana and take it ashore where a number of per-
sons would be waiting with trucks and loading equip-
ment to remove the marihuana. Aircraft surveillance
observed the Lady Ellen enter through Beaufort Inlet
and proceed up the intra-coastal waterway during the
night, and observed it going into Back Creek to be met
by small boats which received the bales of marihauna
and went to the shore with them to a dock on the
premises previously referred to, later known to be
premises leased by defendant Peter Forbes from a Mr.
Leonard. The officers in the aircraft had seen persons
on the Lady Ellen, in the boats, and at the dock remov-
ing marihuana and taking it to shore. At that moment
the law enforcement agencies had every element of pro-
bable cause to go upon the premises for the purpose of
seeking out and arresting those persons, and for the pur-
pose of seizing the marihuana and equipment for its
removal, and for the purpose of searching for and seiz-
ing any other evidence on the premises connected with
the smuggling operation, since the premises were ob-
viously being used in carrying out the operation. The
Lady Ellen was on a public waterway when some of the
defendants unloaded the bales of marihuana and placed
it on these premises. As the government’s brief said, the
officers in the air could see the marihuana being placed
on the premises, which “activity was plainly visible to
anyone who may have been observing from Back Creek,
a navigable stream, or the land surrounding it.” There
60a
are neighboring lots of land extending down to the
water, and several neighbors testified at the hearing who
lived within sight of these activities. As the government’s
brief also states, “What a person knowingly exposes to
the public, even in his own home or office, is not a sub-
ject of Fourth Amendment protection. See Lewis v.
United States, 385 U.S. 206, 210; United States v. Lee,
274 U.S. 559, 563.”
The Supreme Court held in U.S. v. Watson, 423 U.S.
411 (1976) that a warrantless arrest may be made in a
public place upon probable cause, and in the same year
the court defined “public place” in U.S. v. Santana,
____ U.S. ___, 96 S.Ct. 2406 (1976). The officers had
probable cause to arrest Santana for selling heroin, and
when the police van stopped fifteen feet in front of the
front door of her residence they saw her standing in the
doorway and recognized her. They got out of their van
shouting “police” and displaying their identification. As
they approached, Santana retreated into the vestibule of
her house. They followed her through the open door
and arrested her inside. The court first cited Watson on
warrantless arrrests in public places, and then said
“While it may be true that under the common law of
property the threshold of one’s dwelling is ‘private,’ as is
the yard surrounding the house, it is nonetheless clear
that under the cases interpreting the Fourth Amendment
Santana was in a ‘public’ place. She was not in an area
where she had any expectation of privacy.” The court
then recited the quotation from Katz shown above. In
Santana, a search incident to her lawful arrest disclosed
heroin and marked money, which were held admissible.
Since the persons recently seen by the officers in the
air to be handling the marihuana at the dock had disap-
peared, the officers had every reason to know that they
6la
had left the immediate vicinity of the dock and would
be attempting to escape arrest. The officers therefore
had lawful authority to seek them out and search all
open spaces in the area. In doing so they came across
defendant Peter Forbes in the marsh grass and had
lawful authority to arrest him. An hour or two later -
they observed defendant Benny Forbes a short distance
away dressed in the same heavy clothing and long rub-
ber boots as the men in the house, and they had pro-
bable cause to arrest him.
As for the arrests in the house, the persons who
brought the marihuana on shore were interrupted by the
aircraft and helicopter noise and lights. Defendant Peter
Forbes testifying as a defense witness, explained his
hiding in the marsh grass by saying he was alarmed by
the helicopter and men with shotguns.
Therefore the officers had every reason to believe that
suspects were attempting to flee or find some place of
refuge. The house on the same premises would be a like-
ly place to look for suspects. As the officers approached
they saw that lights were on in the house and persons
were moving about inside. Since the trucks and other
equipment were already on the premises ready to receive
the marihuana, it was obvious that such an operation
would not be going on without the participation or ac-
quiescense of the occupants of the house. The officers
had probable cause to believe that suspects were in the
house. The remaining question is whether a warrant was
required.
The government’s testimony tends to show that
D.E.A. agents Hinchman and Rousseau were given con-
sent to enter the house by an occupant inside. I find
that the officers both knocked on the door loudly and
identified themselves as federal officers and asked for
62a
permission to enter, and that they heard what they
thought was permission to enter from someone inside,
and that they entered the house without the use of
force. The three defendants testified that the officers did
not identify themselves, nor request permission to enter,
nor were given permission, but that the officers
themselves opened the door and came in. However that
may be, it is not necessary to find as a fact whether or
not consent was given, since I find that under the cir-
cumstances described, exigent circumstances existed to
authorize the officers to enter without a warrant. The
cases hold that law enforcement officers may not enter a
dwelling to effect an arrest unless certain “exigent cir-
cumstances” exist which justify a warrantless entry.
Vance v. North Carolina, 432 F.2d 984 (4th Cir. 1970);
Dorman vy. United States, 435 F.2d 385 (D.C. Cir.
1970); and U.S. v. Flickinger, F.2d ae
Cr.L.Rep. 2098 (9th Cir. 1978). The Fourth Circuit in
Vance adopted the list of exigent circumstances describ-
ed in Dorman which would justify a warrantless entry in
a residence to make an arrest with probable cause. They
are: (1) whether a serious offense, particularly a crime of
violence, is involved; (2) whether the suspect is rea-
sonably believed to be armed; (3) whether there is a
clear showing of probable cause; (4) whether strong
reason exists to believe the suspect is in the premises be-
ing entered; (5) whether there is a likelihood that the
suspect will escape if not swiftly apprehended; (6)
whether the entry is forceable or peaceful; and (7)
whether the entry is at night.
In the present case we have (1) smuggling twenty tons
of marihuana is a serious offense; (2) no evidence of
suspects being armed; (3) a clear showing of probable
cause; (4) strong reason to believe suspects are in the
premises being entered; (5) strong likelihood that sus-
63a
pects will escape if not swiftly apprehended; (6) the en-
try was peaceful; (7) the entry was before dawn, but
persons were up in the house.
Applying the tests set out in Vance and Dorman, I
unhesitatingly find that exigent circumstances existed for
the warrantless entry into the house to arrest the three
defendants.
With regard to the subsequent searches of the house
and the vehicles at the dock, several questions arise. The
first search of the house was immediately after the arrest
of the three defendants inside, made for the purpose of
determining whether there were any other suspects
hiding in the house. This precaution has been sanctioned
by the Fourth Circuit as a necessary “protective sweep”
in United States v. Baker, No. 77-1233 (4th Cir. May
25, 1978), and any evidence which comes into view dur-
ing such a sweep can be seized. Agent Hinchman guard-
ed the house against further searches until late afternoon
when a search warrant was obtained. The government
contends that it obtained an oral and written consent
from Peter Forbes, the lessee of the premises in ques-
tion, during the middle of the day on February 5. Peter
Forbes testified at the hearing that he leased the
premises from a Mr. Leonard and that he used the
premises for fishing with his son Benjamin Forbes and
his (Benny’s) friend Richard Jackson. Those two defen-
dants had permission from Peter Forbes to live in the
house, and they did so for three or four months prior to
February 5. D.E.A. agent Richard Broughton testified
that he was at the magistrate’s office in New Bern dur-
ing the day on Februrary 5 in connection with the initial
appearances before the magistrate, and while there he
saw Peter Forbes and had two conversations with him.
He asked Forbes if the officers could search his property
64a
4
out there and Forbes said “Yes, by all means.” Forbes
said if there were any drugs down there he wanted them
taken off. A few minutes later agent Broughton decided
to request a written consent and talked to Mr. Forbes
again and asked him if he would sign a written state-
ment giving consent for the officers to search his pro-
perty, and Forbes said it would be all right. Agent
Rousseau wrote a short statement for Mr. Forbes and
read it to Mr. Forbes and gave it to him to look at and
read. Forbes signed the statement and gave it to
Broughton. Agent Otis Rousseau, who was present dur-
ing the conversation between Broughton and Forbes and
who prepared the written statement and talked with
Forbes about it, also testified to the same effect as Mr.
Broughton concerning Forbes giving his consent. The
officers read Forbes his Miranda rights before obtaining
the oral consent and again before obtaining the written
consent.
The defendants contest the validity of the consent to
search given by Peter Forbes on the ground that he was
seriously ill on February 5 and was not physically or
mentally competent to give a valid consent. Testimony
was Offered by several defendants that Forbes had had
several serious illnesses, including partial removal of his
stomach a few years earlier, very high blood pressure,
and a stroke less than a year earlier; and that he had to
take medication daily to control his blood presure and
for other purposes. Their testimony tended to show that
on February 5 he had had no medication or food all
day, and the exertions and stress of the raid and his ar-
rest, sitting on a bench in the cold storage shed for an
hour painfully handcuffed from behind, and with no
sleep since eight p.m. Saturday night combined to con-
fuse his mind and comprehension of what was going on
around him.
65a
Dr. Richard Borden, a physician in general practice in
Morehead City, who had treated Peter Forbes, testified
concerning his illnesses and the medication prescribed
for him. Dr. Borden was asked how the lack of his
medications for that period of time would affect him,
the doctor replied that the blood pressure medicine
would probably have more effect than the others, and
he did not think that anybody can say how much time
without the medication would be required to effect his
blood pressure or brain oxygen appreciably, and it
varies with individuals. He said it might take several
days or it could be in twelve hours. The doctor was ask-
ed several variations of a hypothetical question, but
there was never a positive response to any of them.
D.E.A. agent Broughton testified that he had a con-
siderable conversation with Peter Forbes at the magistrate
office; that he had known Mr. Forbes’ son Benny Forbes
from seeing him around the beach when he was growing
up in Morehead City; that Broughton felt as if he related
to Peter Forbes rather well, because he knew that
Forbes was sort of a “country boy” and Broughton con-
sidered himself to be one also, having grown up around
Morehead. He said that Forbes appeared to be normal
to him. He was asked if he thought Forbes was very
nervous, and he said no more than any of the others
who had been arrested. He did not hear Forbes express
any complaints about the treatment he had received.
Broughton said that he asked Mr. Forbes if he was feel-
ing all right, knowing that Forbes was about 66 years
old, and Forbes said he was doing all right. Agent
Rousseau also said that Forbes seemed normal to him,
and made no complaints about being ill cr about any
treatment he had received.
Undoubtedly Peter Forbes had suffered serious ill-
nesses and had very high blood pressure. His age of 66
66a
is only one factor to be considered, and the fact that he
undertook to take his boat out to assist in bringing a
cargo in from a ship on Saturday night shows that he
did not consider himself not to be well physically or
mentally, insofar as a person is capable of evaluating
that factor in himself. Moreover, it shows that his son
Benny Forbes and his friend Richard Jackson considered
him to be physically and mentally capable when they
went out on the mission, or they would not have gore
with him. Perhaps more importantly, all of the defer:
dants who testified that he was frail, trembling, and
mentally confused at the time he gave his oral and writ-
ten consent for the search were also at the magistrate’s
office waiting in the same area as Peter Forbes when
agents Broughton and Rousseau came out to talk with
him and took him in the other office. But there was no
testimony from any of them that they told the officers
about Peter Forbes’ condition. His own son should have
been the first to tell the officers that he needed his
medicine and needed to be given a comfortable place to
wait, and was in no condition to be interrogated by the
officers.
Dr. Borden was unable to express an opinion in
response to the hypothetical question concerning the
question whether Peter Forbes could probably have been
too mentally confused and lacking in memory to be con-
scious of what he was doing. On the other hand, agent
Broughton’s demeanor in relating his conversation with
Peter Forbes and the affinity he felt for Forbes impress-
ed me. If Peter Forbes were obviously in physical or
mental distress at the time, I believe he would have tried
to get some help for him.
Peter Forbes testified that he did not remember sign-
ing anything at the magistrate’s office, but that he did
67a
have a conversation with agent Rousseau [not by name],
and that Rousseau asked him if they could search his
place, and Forbes said that it was already searched by
daylight this morning, and “as far as I am concerned, go
ahead and search it.” Peter Forbes also testified that last
winter he started fishing again at his place, that he got
better and felt better and starting fishing and that is
when he leased the place. His testimony at the hearing
shows that while he was at the magistrate’s office he had
enough understanding and memory, to recall at the
hearing that he had given his oral consent to a search.
If it were necessary to make a finding as to the com-
petency of Peter Forbes to give his consent to the
search, I would find that he was competent to do so.
However, in view of the discussion to follow on the
matter of the search warrant, it is unnecessary for the
purpose of this motion to make such a finding.
As mentioned earlier in this memorandum, after the
three defendants were arrested in the house on the
Forbes’ premises before dawn, the officers made a pro-
tective search of the house to determine if any other per-
sons might be hiding in it, and then agent Hinchman
secured the house from further search pending the ob-
taining of a search warrant. From late forenoon until
four p.m. Hinchman made a number of telephone calls
to the magistrate’s office to inquire about the status of
the warrant. He had a number of S.B.I. agents waiting
around all day to unload the marihuana into the trucks
after the search warrant was issued. At four twenty p.m.
the magistrate notified Hinchman by: telephone that he
had issued the search warrant. Thereupon Hinchman
went outside where the officers were waiting to do the
fingerprinting and to load the trucks, and told them
they could commence fingerprinting. A fingerprint
68a
technician asked whether they should not wait until the
warrant arrived, and Hinchman told him that that was
not necessary and to go ahead. Following that the other
officers loaded the marihuana on the trucks, and the of-
ficers also made a thorough search of the house, the
storage shed and all vehicles on the premises.
Defense counsel contended that the officers began
loading the marihuana into the trucks before the search
warrant was issued, and as early as three o’clock in the
afternoon. S.B.I. agent Isaac Edwards, called by the
defense, testified that he was not positive but thought
that the loading of the trucks began around three p.m.,
and was finished around five p.m. On cross-examination
he stated that since he was not the agent on the case he
did not make any notes and was not looking at his
watch or keeping time, and that he was only testify-
ing from his recollection of what happened back in
February. S.B.1. agent William Wolak, called by the
defense, testified that he was on the premises that after-
noon and saw the laboratory technicians come to the
premises in the latter portion of the afternoon between
three and four o’clock, and that they began processing
the vehicles before they started to load the marihuana.
On cross-examination Wolak testified that they were
standing by waiting to hear when the search warrant was
issued, and that the trucks were not processed for
fingerprints until the information came that the search
warrant had been obtained and they did not start to
load the marihuana until after all the vehicles had been
processed. Agent Hinchman was in charge and was ob-
viously determined to get a search warrant before con-
ducting the search. The positive and specific testimony
given by Hinchman and Wolak outweigh in my mind
the uncertain testimony of Isaac Edwards, and I find
that the search of the premises, the house, the vehicles,
69a
and the dock area was not commenced until after the
search warrant was issued.
The defendants vigorously attacked the validity of the
search warrant on grounds that its underlying affidavit
does not adequately connect the Back Creek premises to
the Lady Ellen smuggling operation; is conclusional and
not specific; contains material omissions and inac-
curacies; and contains information not within the per-
sonal knowledge of the officer making the affidavit.
They argue that the affidavit was entirely insufficient to
show probable cause for the issuance of the search war-
rant. The affidavit reads as follows:
Odis Alexander Rousseau, first being duly
sworn, deposes and says:
That at approximately 4:00 AM on February 5,
1978, the vessel Lady Ellen was seized by the
U.S. Customs agents after it had been observed
by the Customs agents to enter Back Creek
from the Atlantic Ocean via Beaufort inlet, up
the intercoastal waterway. The ship was further
observed by Customs and State agents to dock
approximately 10 (10) feet in the inlet of Back
Creek where an 18 foot white wooden boat an-
chored to the Lady Ellen and was loaded with
approximately two (2) tons of marijuana and
closely thereby was loaded a raft containing
several thousand pounds of marijuana.
The Lady Ellen was subsequently seized by
Customs agents and contained several more
tons of marijuana. Arrested on the premises
adjoining the inlet at Back Creek were four in-
dividuals one of which identified himself as
Richard Jackson. Three of the four people
were arrested in the brown and white frame
70a
house located on said premises approximately
1/4 mile off Merriamen Road on Back Creek
Road. The house is a one story, four room
residence described as brown aluminum with
white wooden exterior with a recently con-
structed storage house and loading platform.
See Exhibit A for location of premises on Back
Creek Road.
Observed on the premises were several vehicles:
1. Ford truck N.C. AR-3584, white
2. Ford truck N.C. BF-1603, green
3. Ford truck, N.C. ER-3098, white
4. Jeep truck, N.C. DJ-1644, red
5. Chevrolet El Camino, N.C. CR-2328,
white/blue
6. Ford model 700, Ga. PF-234, white
7. Ford model 750, N.C. BF-2325, white
8. Chevrolet model C-65, N.C. BE-9456,
yellow
Information received from confidential and
reliable sources whose information in the past
has been proven reliable advised that the mari-
juana from the Lady Ellen would be off-loaded
into several U-Haul type vehicles. These
vehicles are believed to contain marijuana,
paraphernalia, and instrumentalities to smug-
gling.
The above information is personally known to
this affiant through his personal observation
and discussion with those officers personally
involved.
The affidavit contains certain inaccuracies. We know
from the evidence at the hearing that the affidavit failed
to state various facts known by the officers which would
7la
have provided overwhelming support for probable
cause, but omissions do not invalidate the warrant if the
affidavit nevertheless contains sufficient kernels of fact
to show probable cause. The affidavit does show that
the Lady Ellen stopped in an inlet of Back Creek where
a boat and a raft were alongside, and all three vessels
contained large quantities of marihuana. It shows that
the Lady Ellen was seen by Customs agents bringing its
cargo of marihuana from the Atlantic Ocean into the in-
land waters of the United States. It shows that on the
premises adjoining the inlet at Back Creek were a
recently constructed storage house and loading platform,
and four trucks and four other vehicles on the premises.
The affidavit shows that this occurred one-quarter of a
mile off Merriamen Road on Back Creek Road, and at
four a.m. on February 5, 1978, which was a Sunday
morning. The Drug Enforcement Administration and
the Customs Service officers know that marihuana
smugglers frequently off-load the marihuana onto small
boats to be brought to the shore and loaded into trucks,
and that a dock or loading platform is a suitable means
of facilitating the operation. While the affidavit does
not specifically connect the four men who were arrested
with the importation or unloading of the marihuana, it
does show that there was reason to believe that some
unlawful activity had occurred on the premises, in-
cluding the house; but that factor is unnecessary to pro-
bable cause. The affidavit had attached to it a portion
of a map and a hand-drawn sketch which, along with
the geographical location given above, adequately
describes the location of the premises. The affidavit
shows that the premises adjoin the inlet where the Lady
Ellen was stopped with quantities of marihuana loaded
on the boat and raft alongside. I conclude that the
foregoing facts give reasonable grounds to believe that
72a
the premises were being used to facilitate the removal of
marihuana which had been imported into the United
States unlawfully, and that probable cause existed for a
search of the premises and for the issuance of the search
warrant.
The next to the last paragraph of the affidavit refer-
ing to information from confidential sources is un-
necessary to the showing of probable cause and is
superfluous. Since it is superfluous, it does not matter
that the affidavit does not show the basis of the
reliability of the information, or that the vehicles were
not U-haul vehicles, although I consider that the trucks
were of the kind often used as U-haul trucks. The last
sentence stating that the vehicles are believed to contain
marihuana and other things was inaccurate, but I con-
sider that to be a mere inadvertence. The last paragraph
of the affidavit is not inaccurate, since agent Rousseau
did personally know some of the facts, and he did
receive reports from other officers personally involved.
The evidence does not show whether approximately ten
feet in the inlet would describe the location of the Lady
Ellen, but that is immaterial. ‘Neither do I recall any
evidence about marihuana being on a raft alongside the
Lady Ellen, but the evidence did show that one or more
small boats were there containing marihuana, and that
discrepancy, if any, is immaterial. The search warrant
issued upon the affidavit sufficiently describes the
premises to be searched and the articles to be searched
for. With regard to inaccuracies, the Fourth Circuit in
United States v. Lee, 540 F.2d 1205 (4th Cir. 1976)
stated: “We believe that excluding probative evidence
secured on the basis of a materially inaccurate affidavit,
where the inaccuracies were innocent or were the result
of simple carelessness, would serve no useful purpose.
73a
Only where an officer has committed perjury or has
proceeded in reckless disregard of the true facts would
we allow an attack on an affidavit sufficient on its face
to show probable cause.”
Accordingly, I conclude that the affidavit furnished
sufficient facts to show probable cause to believe that
grounds existed for issuing the warrant and that the
search warrant is valid, and all evidence seized as a
result of the search is properly admissible.
The defendants also complain that the officers re-
mained in the house after the defendants there were ar-
rested and taken away, and in fact one or more of the
officers remained in the house during most of the day,
and a number of the officers were coming in and out all
during the day to get warm or to discuss the case. They
made telephone calls in connection with the progress of
the case and used it for a “command post.” Defendants
contend that the use of the house by the officers con-
stituted a violation of the Third Amendment, providing,
“No soldier shall, in time of peace, be quartered in any
house without the consent of the owner, nor in time of
war but in a manner to be prescribed by law.” However,
the facts as shown by the evidence do not remotely give
rise to the type of transgression contemplated by the
Third Amendment. See generally Katy v. U.S., 389 U.S.
347 (1967). Furthermore, defendants argue that that
conduct constituted a further unlawful intrusion on the
privacy of the house, vitiating any consent to enter the
house which may have previously been granted. The
government’s testimony explained the need and reason
for the security watch kept in the house pending receipt
of the search warrant. Even apart from that, however,
no evidence was taken during that period or any other
action done which would violate any of defendants’
74a
rights, and no constitutional infringement can be
discerned.
Next, the defendants contend that the second seizure
of the Lady Ellen and its cargo at Back Creek on
February 5 was unlawful. That question was discussed
in the court’s opinion concerning the Lady Ellen, and
reference should be made to that opinion as it applies
here. It does not matter that the Coast Guard had con-
voyed the Lady Ellen to the North Carolina coast, or .
that the Lady Ellen’s crew was navigating it into the
United States and into North Carolina waters. I found
in that opinion that there was no entrapment by the
government or that the officers induced any of the
defendants to visit Back Creek that Sunday morning to
be caught on board the Lady Ellen or on the premises
where the marihuana was found. I said there also that
the apprehension of these defendants was not essentially
different from arrests made in multitudinous cases
where some suspects are arrested and cooperate with the
officers by leading them to their confederates. The of-
ficers knew from their own knowledge that the Lady
Ellen entered the country loaded with marihuana and
observed it to its destination, where they apprehended
those on board and nearby. The second seizure was en-
tirely valid and the validity of that seizure would not de-
pend upon the validity of the first seizure at sea, but
they are entirely separate. Independent and overwhelm-
ing probable cause existed for the second seizure of the
Lady Ellen, and it was entirely valid.
The defendants made a further argument based upon
the evidence showing that during the surveillance of the
Lady Ellen as it approached the North Carolina shore
and entered its inland waters and as it proceeded toward
the Back Creek area, there was cooperation between the
75a
Drug Enforcement Administration and Customs Service
on the one hand and the U.S. Marine base at Cherry
Point on the other hand in sending radio messages in
connection with keeping track of the Lady Ellen, send-
ing information to other law enforcement units, and in-
structions to agents on the ground. Defendants contend
that this was a violation of 18 U.S.Code § 1385, which
prohibits the use of the armed forces “as a posse com-
itatus or otherwise to execute the laws.” That negligible
participation in routing radio messages does not
establish a violation of the statute. See U.S. v.
Redfeather, 392 F.Supp. 916 (D. S.D. 1975) and U.S. v.
Banks, 539 F.2d 14 (9th Cir. 1976), cert. den., 429 U.S.
1024.
A final claim made by the defendants, and illustrated
by the claim of statutory violation just considered and
the claim of quartering of soldiers, is that the govern-
ment has been guilty of gross misconduct from the in-
itial seizure of the Lady Ellen through the raid at Back
Creek, and continuing during the suppression hearings.
Defense counsel repeatedly accused the prosecution
vehemently of misconduct in various ways, by interfer-
ing with their attempted interviews with Coast Guard
personnel, not producing documents to which defense
counsel were entitled, refusal to furnish discovery, and
various other actions. Most of those objections were
dealt with during the hearings or by orders entered since
then. In lengthy and contested hearings of this
magnitude, it is to be expected that friction will occur
between opposing counsel. Suffice it to say that the pro-
secution did not act improperly in any of the instances
which was a subject of rulings by the court, and that the
record will show that the government cooperated in
making discovery available to the defendants and fur-
nishing them information and documents far beyond the
76a
requirements of Rule 16, Federal Rules of Criminal Pro-
cedure. I find that the evidence heard did not show any
misconduct on the part of the government in carrying
out the mission of apprehending the defendants and
seizing evidence. The defendants contentions with regard
to alleged misconduct are without merit.
We now come to the last question to be determined
on these motions, that of standing of the various defen-
dants to challenge the Lady Ellen’s second seizure and
the various searches and seizures on the premises at
Back Creek. The court’s discussion of standing in the
opinion dealing with the Lady Ellen is applicable here.
The standards to show standing are those given in
Brown v. U.S. 411 U.S. 223 (1976) and the other cases
discussed in the Lady Ellen opinion. In order for a per-
son to have standing to contest a search and seizure, the
person must (a) be legitimately on the premises at the
time of the contested search and seizure; (b) allege a
proprietary or possessory interest in the premises; (c)
allege a possessory interest in the article seized; or (d) be
the victim of a search, the person against whom the
search was directed as in Jones v. U.S., 362 U.S. 257
(1960) and U.S. v. Cobb, 432 F.2d 716 (4th Cir. 1970).
The defendants Harper, Rowe, Govus, Clark, Black,
and Burdine were all arrested on board the Lady Ellen
in Back Creek, and they have thereby established stan-
ding. The court’s Lady Ellen opinion held that the af-
fidavits of proprietary and possessory interests in the
Lady Ellen and its cargo by defendants Govus, Jenkins,
Burdine and White were ineffective to establish standing
for them, and that would apply to these motions also as
to any other seizures at Back Creek. None of the other
defendants have asserted at the hearing any allegations
bringing them within the standing rules set out above.
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Therefore no defendants except the six who were on
board have standing to contest the second seizure of the
Lady Ellen.
As to the searches and seizures at the house, Peter
Forbes was the lessee of the house, used it for fishing,
and had possessory rights, and he has standing. Accor-
ding to the evidence Benjamin Forbes and Richard Jack-
son lived there with Peter Forbes’ consent and they have
standing. Defendants Jenkins and White were legitimate-
ly in the house on the invitation of Richard Jackson,
who lived there, and they have standing. Defendant
Govus testified that he was invited by Benjamin Forbes
to stay at the house and keep his clothes and belongings
there and that he slept there, and that he owned suit-
cases and other articles seized, and he therefore has
standing. None of the other defendants have standing to
challenge the seizures at the house.
Regarding searches and seizures of the premises away
from the house, which would include the search of the
vehicles near the dock, the storage shed, the dock and
surrounding area, including the loading ramp, any boats
found there and all marihuana found on the premises,
Peter Forbes was the lessee of the premises and as such
he has standing. Benjamin Forbes and Richard Jackson
lived in the house and used the premises including the
shore area for fishing purposes, and they have standing.
No one else asserted a proprietary or possessory interest
at the hearing in any of the items seized there, and
therefore no other defendants have standing to contest
the seizures referred to in this paragraph.
Accordingly, based upon all of the foregoing findings
of fact and conclusions of law, I recommend that all of
these motions to suppress be denied.
°F
78a
This 20th day of June, 1978.
/s/ Logan D. Howell
LOGAN D. HOWELL
UNITED STATES MAGISTRATE
79a
APPENDIX F
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
NORTH CAROLINA
NEW BERN DIVISION
[Filed July 7, 1978
John R. Whitty, Clerk
U.S. District Court
E. Dist. No. Car.]
UNITED STATES OF AMERICA, )
)
Plaintiff ) NO. 78-08-CR-4
)
VS. ) SUPPLEMENTARY MEMO-
) RANDUM AND RECOM-
) MENDATION ON MOTIONS
DONALD WINSTON HARPER, ) TO SUPPRESS THE
et al., ) SEARCHES AND SEIZURES
) AT BACK CREEK
Defendants )
The government has filed a Cross Objection to Magis-
trate’s Findings on Motions to Suppress the Searches
and Seizures at Back Creek. In its motion the govern-
ment points out that this court in its original findings
and recommendations made certain findings of fact with
regard to the entry made by Drug Enforcement Ad-
ministration Agents Hinchman and Rousseau into the
house on the Forbes premises at Back Crevk, but
refrained from making a finding as to whether the entry
was by consent or not, since such a finding appeared
unnecessary in view of the court’s later finding that “ex-
igent circumstances” authorized the Agents to enter the
house for the purpose of searching for and arresting
suspects who were attempting to flee the unloading site
area. Reference is made to this court’s original
*%
80a
memorandum at pages 3 (last paragraph), 4 (top of
page), 6, 7 and 8. The government in its motion re-
quested that Judge Dupree direct this court to make an
additional finding of fact on the question of a consent
entrance into the house, and Judge Dupree has granted
the request. Accordingly, the court makes the following
additional findings of fact.
With particular regard to the top of page 8 of the
original memorandum, I find that DEA Agents Hinch-
man and Rousseau both knocked loudly on the door to
the house and identified themselves as federal officers
and asked for permission to enter. A man’s voice from
inside the front door said, “Come in”, or words to that
effect. The officers opened the door and went in. Defen-
dants Richard Jackson, David Jenkins and John White
were the only persons in the house at the time. Jackson
was living in the house with the consent of Peter Forbes,
the lessee of the premises, and the other two were
legitimately present in the house upon the invitation of
Richard Jackson and defendant Benjamin Forbes, the
other person who was living in the house with the con-
sent of his father, Peter Forbes. All three of the men
were in the front room looking directly at the door.
Regardless of whether the permission to enter was voic-
ed by Jackson, who lived there, or by one of the other
two defendants, I find that a valid consent to enter was
given to the officers.
/s/ Logn D. Howell
LOGAN D. HOWELL
UNITED SATES MAGISTRATE
July 6, 1978.
8la
APPENDIX G
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT
OF NORTH CAROLINA
NEW BERN DIVISION
[Filed June 22, 1978
John R. Whitty, Clerk
U.S. District Court
E. Dist. No. Car.]
UNITED STATES OF AMERICA )
)
Vv. )
)
DONALD WINSTON HARPER ) No. 78-08-01-CR-4
MICHAEL BENJAMIN FORBES ) No. 78-08-02-CR-4
JOHN WHITE, No. 78-08-03-CR-4
a/k/a Leroy J. Edwards,
a/k/a Roy Edwards
)
)
)
DONALD ALFRED BLACK ) No. 78-08-04-CR-4
HERBERT FRANKLIN CLARK ) No. 78-08-05-CR-4
DAVID RAY JENKINS ) No. 78-08-06-CR-4
JAMES MERRILL BURDINE _) No. 78-08-07-CR-4
RICHARD LEWIS JACKSON _) No. 78-08-08-CR-4
DAVID RAYMOND GOVUS, ) No. 78-08-09-CR-4
a/k/a Sam, )
a/k/a Melvin Hawkins )
PAUL JEROME BRESLIN ) No. 78-08-10-CR-4
PETER FORBES ) No. 78-08-11-CR-4
ROBERT McNEILL HERRING ) No. 78-08-12-CR-4
NEIL WILSON ROWE ) No. 78-08-13-CR-4
GARY REGAN TALBERT ) No. 78-08-14-CR-4
)
MEMORANDUM AND RECOMMENDATION
ON MOTIONS TO SUPPRESS EVIDENCE
SEIZED FROM AUTOMOBILES
These are motions by defendants Herring, Talbert,
and White to suppress evidence seized as a result of the
82a
stopping of two automobiles by the law enforcement of-
ficers on the morning of February 5, 1978 in the vicinity
of the marihuana unloading site at Back Creek dis-
cussed in the court’s opinion on motions relating to
Back Creek, which should be referred to for amplifi-
cation of matters dealt with in this memorandum. The
facts will be summarized.
As described in the court’s opinion dealing with the
searches and seizures at Back Creek, the combined law
enforcement agencies commenced a raid on the mari-
huana unloading site at Back Creek at approximately
four a.m. on Sunday morning February 5, 1978. D.E.A.
agent Robert Johannesen was in an automobile ap-
proaching the Back Creek area as were many other of-
ficers, and they were receiving numerous radio messages
from the aircraft keeping surveillance on the Lady Ellen,
and four Customs patrol boats or intracoastal waterway
boats who were also on the waterway trying to observe
the Lady Ellen inconspicuously. The messages were
directing the officers in automobiles to various posi-
tions, and it seemed to Johannesen that the suspects
were being pursued all over the area, or that was his im-
pression; and he decided it was time for someone to
make an effort to block off the area so that persons
near the landing site would not be able to escape. Back
Creek road, a dirt road, is the only access road leading
from the premises of the landing site to the highway,
and the only highway connecting with Back Creek Road
is rural paved road No. 1300, running north and south a
short distance east of the premises. That road is known
as Merriamen Road and it dead-ends to the northward of
Back Creek Road. Going southward highway 1300 con-
nects with highway 101, and goes on south to Morehead
City. Highway 101 is the highway on which the Core
Creek Bridge over the intracoastal waterway is located,
and all vessels going northward from Beaufort Inlet to
Back Creek must pass under Core Bridge. Highway 1300
83a
is the only highway outlet from the unloading premises
in question. The officers knew from what has just been
mentioned about traffic under the bridge that the Lady
Ellen would have to pass under that bridge before
reaching Back Creek, and they knew that somewhere
around that bridge would be the most likely spot for the
suspects to post a lookout, and hence good police prac-
tice would dictate a search for lookouts.
Agent Johannesen received a message advising the
agents to watch out for such a lookout, and Johannesen
decided that he should attempt to contain the landing
site area by setting up a road block on highway 1300.
The area along highway 1300 is very flat and sparsely
populated. He and S.B.I. agent Paul Bateman went in
an automobile south on highway 1300 to a point later
determined by another agent to be about one mile from
the premises in question, and parked off the road to
watch for cars approaching either from the north, which
would mean someone leaving the raid site; or from the
south, which would be the route any lookout would
necessarily follow if he were attempting to return to the
raid site. Johannesen explained that it was not a road
block, but a checkpoint, as he was not blocking the
road, but was pulled off the road without being con-
spicuous. He established his checkpoint at five forty-five
a.m., and remained there an hour and twenty minutes
until 7:05 a.m. In that time only two cars came by, the
first being a nurse on the way to work, and the second
one being driven by defendant Gary Talbert. This was
after seven a.m. and already light enough to see well.
Talbert was approaching from the south heading north,
the route he would follow if he had left Core Creek
Bridge. Johannesen backed his car out into the road
when Talbert was some distance away; turned on his
blue light and waited; Talbert drove up to the check-
point. Johannesen walked over to the car and asked
Talbert for his driver’s license and registration, holding
84a
up his own credentials and telling him that he was a
federal narcotics agent. Agent Bateman also held up his
credentials and announced “Agent Bateman with the
S.B.1.” Talbert produced his driver’s license and the
agents asked for the registration, and Talbert told them
it was a rental car, and he gave them the rental agree-
ment, which revealed that the card had been rented by a
person named Leroy J. Edwards, using the Georgia
driver’s license with an Atlanta address. The car had
been rented from the Raleigh Rent-a-wreck in Raleigh.
At that time Johannesen saw a bottle of liquor on the
seat in a brown bag. The agent asked him what was in
the bag, and the reply was something to the effect that
it was liquor or whatever. He was asked what he was
doing out at that time of the morning, and he said he
was on his way to Nags Head. He was told he was going
in the wrong direction, and he said he did not realize
that. He was asked why he was going to Nags Head at
that time of the year, and he said he was going to buy a
hang glider. Then the agent asked if Talbert would mind
if they looked in the trunk of his car, and he said no he
didn’t mind. (Later on cross-examination one of the two
agents answered a question which grammatically could
be interpreted to mean that Talbert did not give permis-
sion, but I am satisfied that the witness did not intend
his answer that way, and I find that consent was given.)
The officers opened the trunk and found a suitcase in it.
They opened the suitcase and found a sum of money in
small bills later determined to be $5000.00. Talbert was
asked what all the money was for, and he said he was
going to buy a hang glider. Then Johannesen went back
toward the front of the car and looked in the passenger
compartment and saw a radio microphone under the
seat. By that time Johannesen had noticed that the seal
on the bottle of liquor was broken. Then State A.B.C.
Agent Tim Mann arrived on the scene and was told by
Johannesen that Talbert had a bottle of whiskey in the
automobile with the seal broken, and Mann approached
85a
the car and placed Talbert under arrest for that liquor
violation, and took him to the Carteret County Sheriff's
Department in Beaufort for processing.
Before Mann actually drove away with Talbert from
the scene, defendant Herring approached him in an
automobile from the north, which would be the direc-
tion taken by anyone leaving the raid site. He stopped at
the checkpoint. Since Johannesen had left for the raid
site, agent Bateman asked to see his driver’s license and
registration card which Herring handed to him, and
Bateman observed that it was a Georgia license issued to
Robert McNeill Herring. Herring did not produce a
registration card, but handed over a car rental agree-
ment from the Raleigh Rent-a-wreck Co., issued to
Leroy J. Edwards as lessee, the same lessee name and
the same rental company as was shown on the rental
agreement in Talbert’s car. Bateman then asked if he
might look in the trunk of Herring’s car and permission
was given. Nothing was found in the trunk. He was ask-
ed where he had been and he said he had been at Atlan-
tic Beach on a hang gliding expedition. Bateman
notified Johannesen by radio about the same rental
company and the same lessees’ name, and at Johan-
nesen’s suggestion, Bateman asked Herring if he minded
being fingerprinted and photographed at the prisoner
processing center at Morehead City. Herring said he did
not mind, and at Bateman’s request, Herring drove his
car to Morehead City behind the agent’s car. When they
arrived at the processing center Bateman told D.E.A.
agent Jiminez that Herring was not under arrest and was
there voluntarily. Herring was then arrested and process-
ed.
In addition to the foregoing findings of fact, a
stipulation was made between the government and
defendant John White establishing the manner in which
White was identified by the officers; namely, upon ex-
amination of the two rental agreements for the two
86a
automobiles, agent Johannesen went to the Raleigh
Rent-a-wreck Company with a photograph display in
which John White’s photograph was included; when
Johannesen showed this display to the manager, he iden-
tified White as the person who, using the name of Leroy
J. Edwards, rented the two cars driven by Talbert and
Herring.
Defendants Talbert and Herring contend that by stop-
ping their cars at the checkpoint the officers violated
their Fourth and Fifth Amendment rights by stopping
their automobiles and detaining them without probable
cause to believe that the drivers’ of the vehicles had
violated any laws. Defendant White also contends that
stopping the two cars was illegal, and that action led
directly to his identification as the person who rented
the cars, and that his identification is tainted by the il-
legality of the stopping of the cars. All three defendants
accordingly contend that the searches of the cars and the
seizures made therein violated their Fourth Amendment
rights, and that their detention and subsequent arrests
violated their Fifth Amendment rights.
This court must first decide whether or not the
vehicles in question were constitutionally stopped.
Several Supreme Court doctrines, as delineated in
United States v. Constantine, 567 F.2d 266 (4th Cir.
1977) and United States v. Montgomery, 561 F.2d 875
(D.C. Cir. 1977), are germane here. The Court found in
Terry v. Ohio, 392 U.S. 1, 21 (1968), that the govern-
mental concern in curtailing crime would permit a police
officer, in appropriate circumstances, to approach a per-
son for purposes of investigating possibly criminal
behavior even though there is no probable cause to
make the arrest. Subsequently, United States v.
Brignoni-Ponce, 422 U.S. 873, 881 (1975), held that pro-
87a
bable cause was not required for a brief investigative
stop of a car suspected of transporting illegal aliens. The
court noted that a reasonable suspicion that the car con-
tained illegal aliens would support such a “minimal in-
trusion.” An officer’s stop is “reasonable” if his action
was justified at its inception, and if it is reasonably
related in scope to the circumstances which justified the
interference in the first place. The law enforcement of-
ficer must be able to point to specific and articulable
facts which, taken together with rational inferences from
those facts, reasonably warrant the intrusion. Jerry, 392
U.S. at 19-21 and see United States v. Bull, 565 F.2d
869, 870-71 (4th Cir. 1977). In assessing the need for a
brief stop, the circumstances with which the officer was
faced are not to be dissected and viewed singly; rather
they must be considered as a whole. United States v.
Constantine, supra at 267.
The facts narrated above come logically within the
framework of the principle stated in those case. The raid
interrupted a large smuggling operation and the evidence
indicated that some suspects were dispersing from the
scene and that not all of the participants had been ar-
rested. Anyone escaping from Back Creek by car would
have to travel on highway 1300, and since it dead-ended
to the north, going southward was the only access to
main highways. Setting a checkpoint or road block
where Johannesen did, that early on Sunday morning in
a sparsely populated area was the surest way to intercept
any car attempting to escape, and those facts permitted
a reasonable inference that anyone traveling along that
way would be a likely suspect. Such a rational inference
from the facts established reasonably warranted the
slight intrusion of stopping the two cars and asking the
routine questions related above. Under those cir-
88a
cumstances what was done by the officers was a mini-
mal intrusion on the defendants’ Fifth Amendment liber-
ty interests.
The stopping of the cars here was not unlike the cir-
cumstances in United States v. Jackson, 448 F.2d 963
(9th Cir. 1971). There the Ninth Circuit sanctioned the
stopping of a car when the officers had no probable
cause to do so, because its occupants were of the same
race as two individuals who had recently robbed a liquor
store, and the car was proceeding along a logical escape
route. The court went on to note that the police are free
to use their experience and training in evaluating the cir-
cumstances surrounding a proposed stop. See a/so Con-
stantine, supra. Such was the case here; the totality of
the circumstances convinces the court that stopping each
car that traveled along the only avenue of ingress to and
egress from a raid on a large marihuana smuggling
operation nearby was justified under these authorities
and entirely lawful, and was not a violation of the
defendant’s Fifth Amendment rights.
The detention of Talbert and Herring by the officers
after they were initially stopped, although somewhat
protracted, was justified by several factors. First,
Talbert produced a Georgia driver’s license with an
Atlanta address and a car rental agreement in another
name, Leroy J. Edwards. The agents had already learn-
ed that several of the suspects arrested at Back Creek
were residents of Atlanta. His explanation of his
whereabouts was somewhat unusual, that of hang
gliding, and he was going in the wrong direction to get
to his destination, which was at Nags Head. We will
overlook the fact that $5000.00 in small bills was found
in the suitcasse in the trunk, which matter will be
discussed below. The other facts mentioned were suffi-
89a
cient to justify detaining Talbert until A.B.C. officer
Tim Mann arrived to arrest him for the liquor violation.
Next, Herring also produced a Georgia driver’s license
and an Atlanta address, and a car rental agreement
identical to the one in Talbert’s car and made out in the
same name of Leroy J. Edwards. He also gave the same
general reason for being in the area, participation in
hang gliding. See U.S. v. Jackson, supra, at 969-970.
Since Talbert was arrested for a liquor violation, there is
no need to consider probable cause to arrest him for the
other suspected crime, and Herring soon agreed to ac-
company the officers to Morehead City for photograph-
ing and fingerprinting. It was not necessary for the of-
ficers to determine whether they had probable cause un-
til after they had reached headquarters and questioned
him. The officers who escorted him to Morehead City
did not ask him for a statement, but after they arrived
there another officer came to Herring’s automobile and
asked him if he would care to make a statement, and
took him over to a police car and took a written state-
ment from Herring. It was after that that he was taken
inside and processed. Even then, as said earlier, the
escorting officer told D.E.A. agent Jiminez that Herring
was not under arrest but had come voluntarily. Never-
theless, agent Bateman believed that Herring was involv-
ed shortly after they first talked at the checkpoint. He
was asked on cross-examination what he would have
done if Herring had stopped following the other car and
had gone another way; and the reply was that the of-
ficers would have pursued him. It was probably only
due to Herring’s willing cooperation at the checkpoint
and agreeing to follow them to Morehead City that ob-
viated an earlier custodial situation. When he gave the
statement at Morehead City, it was a custodial inter-
90a
rogation, and since the evidence does not show that any
Miranda warnings were given, that statement should be
suppressed within the meaning of Escobedo v. Illinois,
378 U.S. 478 (1964).
The situation was different earlier at the checkpoint.
Both defendants now contend that since they were not
given any Miranda warnings when they were first stop-
ped, their answers to the officers’ questions, the car ren-
tal agreements, and information from their driver’s
licenses should be suppressed. However, the routine in-
quiries which the officers made when they stopped the
defendants did not constitute a custodial interrogation,
and there was no requirement to give Miranda warnings.
U.S. v. Jones, 543 F.2d 1171, 1173 (Sth Cir. 1976), cert.
den. 430 U.S. 957 (1977). Even when the defendants left
their cars to open the trunks, the Miranda warnings
were not necessary because the atmosphere surrounding
the questioning of each defendant cannot be characteriz-
ed as coercive. The defendants were cooperating with
the officers. See United States v. Gibson, 392 F.2d 373
(4th Cir. 1968). The trunk searches were consented to
within the meaning of United States v. Watson, 423
U.S. 424 (1976) and Schneckloth v. Bustamonte, 412
U.S. 218 (1973).
Finally, defendant Talbert contends that his suitcase,
revealed when the trunk was opened, was searched ille-
gally. The government’s position is that the search of the
suitcase was authorized by Talbert’s consent to allow the
search of the trunk, and that since the suitcase was in
plain view, the contents therein were subject to search
and seizure. There was no request for permission to
search the suitcase and none was given.
9la
Coolidge v. New Hampshire, 403 U.S. 443 (1971) states
the principles relating to a “plain view” search under
analogous facts:
. . . What the “plain view” cases have in com-
mon is that the police officer in each of them
had a prior justification for an intrusion in the
course of which he came inadvertently across a
piece of evidence incriminating the accused.
The doctrine serves to supplement the prior
justification — whether it be a warrant for
another object, hot pursuit, search incident to
a lawful arrest, or some other legitimate reason
for being present unconnected with a search
directed against the accused — and permits the
warrantless seizure. Of course, the extension of
the original justification is legitimate only
where it is immediately apparent to the police
that they have evidence before them; the “plain
view” doctrine may not be used to extend a
general exculpatory search from one object to
another until something incriminating at last
emerges . . . 403 U.S. at 466 (emphasis added).
Even after stopping Talbert and speaking with him and
searching the trunk and suitcase, agent Johannesen
testified that he had no probable cause to arrest Talbert.
Therefore the suitcase and its contents were not “ap-
parently” evidence of a crime at that point. Talbert’s ar-
rest for the liquor violation by A.B.C. officer Mann did
not occur until after the suitcase was searched and the
moniey seized. In light of those facts, the evidence found
in the suitcase should be suppressed. First, the suitcase
search was not based upon any probable cause within
the meaning of Cody v. Dombrowski, 413 U.S. 433
92a
(1973) and Chambers v. Maroney, 399 U.S. 42 (1970);
nor was it incident to a valid arrest, see Dombrowski,
supra, and Coolidge v. New Hampshire, supra at 455.
Although the trunk search was consented to, there was
no consent nor probable cause to search the suitcase.
Coolidge established the proposition that, even ‘fa
legally proper search or a consent search is begun, it
cannot be extended beyond apparent evidence in plain
view in hope that incriminating evidence will be un-
covered. The search of the suitcase here was not re-
quired by the exigent circumstances usually associatd
with plain view searches as discussed in Coolidge. Once
Talbert was arrested for the liquor violation, or after
probable cause had been established, the car and its con-
tents could lawfully have been completely searched
within existing case law. Here the search was too soon,
and it must fail.
Defendant John White has asserted a claim to stan-
ding to challenge the searches and seizures of the two
automobiles occupied by Talbert and Herring. Since he
was the lessee of both automobiles and since documents
seized from each automobile were used to identify him
as a defendant in this case, the court finds that he has
standing.
Accordingly, based upon all of the foregoing findings
of fact and conclusions of law, I recommend that these
motions to suppress be denied, except that defendant
Talbert’s motion to suppress the contents of the suitcase
taken from the trunk of the automobile he was occupy-
ing be allowed; and I recommend that defendant Herr-
ing’s motion to suppress the written statement he gave at
headquarters in Morehead City be suppressed.
93a
This 22nd day of June, 1978.
/s/ Logan D. Howell
LOGAN D. HOWELL
UNITED STATES MAGISTRATE
94a
APPENDIX H
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
NORTH CAROLINA
NEW BERN DIVISION
[Filed Jul. 6, 1978
John R. Whitty, Clerk
E. Dist. No. Car.]
UNITED STATES OF AMERICA, |)
(
Plaintiff ) No. 78-8-CR-4
)
VS. )
)
DONALD W. HARPER, et al., ) ORDER
)
Defendants )
Defendants Herring, Talbert and White have moved
to suppress all evidence obtained from the stopping of
two automobiles near the raid site at Back Creek in the
early hours of February 5, 1978. The Magistrate has
recommended denial of the motions. A review of the
pertinent portions of the transcript, the memorandum,
and the objections persuades the court that the
Magistrate is substantially correct.
The stopping of the cars occurred on a rural paved
road in a sparsely settled area of the coast at 7:05 a.m.
on a Sunday morning. During the hour and twenty mi-
nutes before defendant Talbert was stopped, only one
car passed through the checkpoint. Additionally, the
agents knew that a criminal conspiracy that by its very
nature requires large numbers of persons entering and
leaving the loading site was in progress, and that the
95a
road on which the checkpoint was set up would neces-
sarily be used in the venture. Accordingly, the agents
had a reasonable suspicion that anyone on the road at
that particular time might be involved in the criminal ac-
tivity afoot. Thus the initial stop was justified. United
States v. Brignoni-Ponce, 422 U.S. 873 (1975). It
follows that the officer’s quest
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