# Appendix — Harper v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 887

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2434%3A3. Public record. Not legal advice.