Petition — Hensel v. United States

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APR 29 1983

ALEXANDER L. STEVAS,

CLERK

In the

Supreme Court of the United States.

OctToBER TERM, 1982.

DAVID KEITH HENSEL,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

MICHAEL AVERY,

2 Park Square,

Boston, Massachusetts 02116.

(617) 451-9461

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

Questions Presented for Review.

1. Whether the absence of any legal authority for the war-

rantless search of a foreign vessel on international waters

without the consent of the flag state compeis the suppression of

evidence seized during the search.

2. Whether a United States citizen, who is the captain of a

foreign merchant vessel. may invoke the exclusionary rule to

suppress evidence seized from the ship during a warrantless

search on the high seas, made without legal authority and in

violation of international law.

3. Whether 14 U.S.C. § 89(a) gives the United States Coast

Guard authority te board and search a foreign vessel on inter-

national waters without the consent of the flag state.

4. Whether the United States Coast Guard may board and

search a foreign vessel on international waters without a war-

rant in the absence of exigent circumstances making it impos-

sible to obtain one.

Table of Contents.

Opinions below

Jurisdiction

Constitutional provisions, statutes, treaties and regula-

tions involved

Statement of the case

Reasons for granting the writ

I. The decision of the Court of Appeals below is in

conflict with the applicable decisions of the Su-

preme Court

A. The Court of Appeals misinterpreted this court’s

decision in United States v. Ramsey, 431 U.S.

606 (1977), when it sustained a warrantless search

on international waters for which there was no

legal authority

B. The Court of Appeals resurrected a standing

requirement in the litigation of Fourth Amend-

ment claims, contrary to this court’s ruling in

Rakas v. Illinois, 439 U.S. 128 (1978)

II. The decision of the Court of Appeals below cre-

ates conflicts in the decisions of the Courts of Ap-

peals

A. The Court of Appeals, in cases involving search-

es of foreign ships on the high seas, are in con-

flict as to whether the principles of United States

v. Ramsey, supra or United States v. Caceres,

supra, apply to the need for legal authority for

such a search

B. The Courts of Appeals are in conflict as to

whether Title 14 U.S.C. § 89(a) provides au-

thority for the search of a foreign vessel on inter-

national waters without flag state consent

Conclusion

Appendix follows page 18

Table of Authorities Cited.

CASES.

Delaware v. Prouse, 440 U.S. 648 (1979) ll

Donovan v. Dewey, 452 U.S. 594 (1981) 13

Greene v. McElroy, 360 U.S. 474 (1959) 9

Hannah v. Larche, 363 U.S. 420 (1960) 9

Katz v. United States, 389 U.S. 347 (1967) 10

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) 13

Miller v. United States, 357 U.S. 301 (1958) 8, 11, 12n, 15

Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64

(1804) 16

Rakas v. Illinois, 439 U.S. 128 (1978) 12,13

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) 9

United States v. Caceres, 440 U.S. 741 (1979) 8,11,

13n, 14, 15

United States v. Cadena, 585 F.2d 1252 (5th Cir. 1978) 16

United Statse v. Garcia, 672 F.2d 1349 (11th Cir. 1982) 15

United States v. Green, 671 F.2d 461 (1st Cir. 1982) 10n

United States v. Hensel, 509 F. Supp. 1364 (D. Me.

1981) 2

United States v. Hensel, 699 F.2d 18 (1st Cir. 1983) $

United States v. Hilton, 619 F.2d 127 (1st Cir. 1980) lin

United States v. Piner, 608 F.2d 358 (9th Cir. 1979) lin

United States v. Postal, 589 F.2d 862 (5th Cir. 1979) 16

United States v. Ramsey, 431 U.S. 606 (1977) 7, 8,14

United States v. Salvucci, 448 U.S. 83 (1980) 12

United States v. Soto-Soto, 598 F.2d 545 (9th Cir. 1979) 15

TABLE OF AUTHORITIES CITED. iii

United States v. Williams, 617 F.2d 1063 (5th Cir. 1980)

(en banc) 8n, 15, 16

Weinberger v. Rossi, 456 U.S. 25 (1982) 16

STATUTES.

United States Constitution

Fourth Amendment 2,8, 10, 12n, 14

14 U.S.C.

§ 89(a) 3, 7, 8n, 10, 12 et seq.

§ 143 8n

18 U.S.C. § 3109 1]

19 U.S.C. § 482 8

21 U.S.C. §§ 841 (a)(1), 846, 952, 963 5

§ 955 17n

28 U.S.C. § 1254(1) 2

Anti-Smuggling Act (Act of August 5, 1935, as amended,

49 Stat. 517; 19 U.S.C. 1701, 1703-1711) 5

Convention on the High Seas, opened for signature,

April 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200,

450 U.N.T.S. 11 (entered into force Sept. 30, 1962) 12,

13n, 17n

Article 6 3

Article 22 4,16

Code of Federal Regulations, Title 19 § 162.3 5, 8n,

lln, 13n

iv TABLE OF AUTHORITIES CITED.

MISCELLANEOUS.

Brin, The Fourth Amendment Adrift: Search and Seiz-

ure on the High Seas, 26 Loyola L. Rev. 1017 (1980)

Coast Guard Drug Interdiction Hearings Before a Sub-

committee of the House Committee on Merchant

10n

Marine and Fisheries, 95 Cong., 2d Sess. 17n, 18n

Ficken, The 1935 Anti-Smuggling Act Applied to Hov-

ering Narcotics Smugglers Beyond the Contiguous

Zone: An Assessment Under International Law, 29

U. Miami L. Rev. 700 (1975)

Fourth Amendment Afloat: Customs Searches, Drug

Smuggling and the Balancing Test in the Fifth Cir-

cuit, 68 Ga. L. J. 1035 (Apr. 1980)

High on the Seas: Drug Smuggling, the Fourth Amend-

ment, and Warrantless Searches at Sea, 93 Harv. L.

Rev. 725 (1980)

Jessup, The United Nations Conference on the Law of

the Sea, 59 Colum. L. Rev. 234 (1959)

Smith, Search and Seizure of Foreign Vessels in Inter-

national Waters — Adrift with the Fourth Amend-

ment, 5 Suffolk Trans. L. J. 141 (1980)

Smoke on the Water: Coast Guard Authority to Seize

Foreign Vessels Beyond the Contiguous Zone, 13

N.Y. U.J. Int'l L. and Pol. 249 (Fall, 1980)

10n

No. -

In the

Supreme Court of the United States.

Ocroser TERM, 1982.

DAVID KEITH HENSEL,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

To the Honorable, the Chief Justice of the United States,

and the Associate Justices of the Supreme Court of the United

States:

The petitioner, David Keith Hensel, appellant in the court

below, respectfully prays that a writ of certiorari issue to

review the judgment of the United States Court of Appeals for

the First Circuit entered in the above case on January 25,

1983. That decision affirmed the judgment of the United

States District Court for the District of Maine entered on July

16, 1981.

Opinions Below. '

The opinion of the United States District Court for the Dis-

trict of Maine, denying petitioner's motion to suppress, is

reported at 509 F.Supp. 1364 (D. Me. 1981) and is set forth at

page la in the appendix. The opinion of the United States

Court of Appeals for the First Circuit affirming the denial of

the motion to suppress and the judgment against petitioner is

reported at 699 F.2d i8 (Ist Cir. 1983) and is set forth at page

27a in the appendix.

Jurisdiction.

The judgment of the United States Court of Appeals for the

First Circuit was entered on January 25, 1983. A timely peti-

tion for rehearing was filed, which was denied on February

28, 1983, and this petition for certiorari was filed within sixty

days of that date. The jurisdiction of the Supreme Court is in-

voked pursuant to 28 U.S.C. § 1254(1).

Constitutional Provisions, Statutes,

Treaties and Regulations Involved.

UNITED STATES CONSTITUTION.

AMENDMENT IV [1791]

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seiz-

ures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the per-

sons or things to be seized.

‘Petitioner was one of seven co-defendants who appealed to the Court of Ap-

peals. The others were Gerald Wayne Case, Larry Ronald Duke, Robert Curtis

Hubbard, Charles Thad Standley, John Jacob Wells and Creig Lee Dill.

UNITED States Cope TITLE 14.

§ 89. Law enforcement

(a) The Coast Guard may make inquiries, examinations, in-

spections, 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, address inquiries to those on board,

examine the ship’s documents and papers, and examine, in-

spect, and search the vessel and use all necesary force to com-

pel compliance. When from such inquiries, examination, in-

spection, 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 ar-

rested or, if escaping to shore, shall be immediately pursued

and arrested on shore, or other lawful and appropriate 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 forfeit-

ure, 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.

CONVENTION ON THE HIGH SEAS.

Article 6

1. Ships shall sail under the flag of one State only and, save

in exceptional cases expressly provided for in international

treaties or in these articles, shail be subject to its exclusive

jurisdiction on the high seas. A ship may not change its flag

during a voyage or while in a port of call, save in the case of a

real transfer of ownership or change of registry.

2. Aship which sails under the flags of two or more States,

using them according to convenience, may not claim any of

the nationalities in question with respect to any other State,

and may be assimilated to a ship without nationality.

Article 22

1. Except where acts of interference derive from powers

conferred by treaty, a warship which encounters a foreign

merchant ship on the high seas is not justified in boarding her

unless there is reasonable ground for suspecting:

(a) That the ship is engaged in piracy; or

(b) That the ship is engaged in the slave trade; or

flag, the ship is, in reality, of the same nationality as the war-

ship.

2. In the cases provided for in sub-paragraphs (a), (b) and

fly its flag. To this end, it may send a boat under the com-

mand of an officer to the suspected ship. If suspicion remains

after the documents have been checked, it may proceed to a

further examination on board the ship, which must be carried

out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided

that the ship boarded has not committed any act justifying

them, it shall be compensated for any loss or damage that may

have been sustained.

Cope OF FEDERAL REGULATIONS

TITLE 19.

§ 162.3. Boarding and search of vessels.

(a) General authority. A Customs officer, for the purpose

of examining the manifest and other documents and papers

and examining, inspecting and searching the vessel, may at

any time go on board:

(1) Any vessel at any place in the United States or within the

Customs waters of the United States;

(2) Any American vessel on the high seas, when there is

probable cause to believe that such vessel is violating or has

violated the laws of the United States; or

(3) Any vessel within a Customs-enforcement area desig-

nated such under the provisions of the Anti-Smuggling Act

(Act of August 5, 1935, as amended, 49 Stat. 517; 19 U.S.C.

1701, 1703-1711), but Customs officers shall not board a for-

eign vessel upon the high seas in contravention of any treaty

with a foreign government, or in the absence of a special ar-

rangement with the foreign government concerned.

Statement of the Case.

The petitioner was indicted on June 12, 1980, for conspiracy

to possess with intent to sell and import marijuana, in viola-

tion of 21 U.S.C. §§ 841{a) (1), 846, 952 and 963. The mari-

juana and other items of evidence had been seized from a Hon-

duran vessel, the Patricia, on which the petitioner was the

captain on May 31, 1980. Petitioner moved to suppress all

items seized from the vessel, and the district court denied the

motion.

The case was tried to a jury, which returned a verdict of guilty

on May 15, 1981. On July 16, 1981, the petitioner was sentenced

to a term of imprisonment for five years and a $15,000 fine.

Petitioner appealed to the Court of Appeals for the First

Circuit, which affirmed the denial of the motion to suppress

and the judgment against the petitioner on January 25, 1983.

Petitioner filed a timely petition for rehearing, which was de-

nied on February 28, 1983.

The search of the Patricia was the result of an air-sea chase

which began around mid-day on May 30, 1980. The initial

boarding by Canadian officers was nearly twenty-four hours

later and American agents boarded the ship almost immedi-

ately thereafter. Such facts as the Government relied upon to

establish probable cause for the boarding, other than the

Patricia’s continuing refusal to stop, were apparent within a

brief period after the initial pursuit began, and there was no

evidence of exigent circumstances making it impossible to ob-

iain a warrant.

The U.S. Coast Guard had initiated the search, the Ameri-

cans asked the Canadians to become involved, an American

Drug Enforcement Administration (DEA) agent who was in-

vestigating a suspected off-loading site in Maine urged the

Canadians to board the ship, the Coast Guard ship showed

firepower and provided back-up assistance during the initial

Canadian boarding, the Americans provided interpreters to

interview the Spanish-speaking crew and a Coast Guard offi-

cer boarded the Patricia to search for evidence to transmit to

the DEA to assist in its attempt to raid the suspected off-load-

ing site. As a result of these and other factors the district court

held that the boarding and search of petitioner’s vessel were a

product of a joint venture between United States and Canadi-

an law enforcement agents. The Court of Appeals found no

error in the ruling of the district court and assumed that

United States participation in the search had been sufficient to

trigger application of the exclusionary rule. 699 F.2d at 25.?

* The question is, therefore, not at issue in connection with this petition for

certiorari.

The air-sea chase which eventually led to the boarding had

begun at a point ninety miles off the coast of the United States.

The Patricia passed no closer than 13.5 miles to the coast of

Canada,’ and the boarding was eventually made in interna-

tional waters southeast of Nova Scotia.

At the time the Patricia was boarded the ship was flying a

Honduran flag and carried papers documenting the fact that it

was registered in Honduras. No consent was obtained either

from petitioner or Honduras for the boarding.

Reasons for Granting the Writ.

I. THE DECiSION OF THE CouRT OF APPEALS BELOW IS IN Con-

FLICT WITH THE APPLICABLE DECISIONS OF THE SUPREME

Court.

4. The Court of Appeals Misinterpreted this Court's Deci-

sion in United States v. Ramsey, 43] U.S. 606 (1977),

When it Sustained a Warrantless Search on International

Waters for Which There was No Legal Authority.

Petitioner argued below that the search of his foreign-regis-

tered vessel on international waters was unreasonable under

the Fourth Amendment because there was no legal authority

from any source to justify the boarding and search of the ship.

He contended that there was no authority under international

law, Canadian law or United States law, specifically 14 U.S.C.

§ 89(a).* Petitioner relied upon the analysis employed by this

3 The territorial sea of Canada extends twelve miles from the coast.

*The Court of Appeals assumed there was no authority under Canadian

law, 699 F.2d at 25, and that the search violated international law and,

therefore, that there was no authority under § 89(a). 699 F.2d at 29.

Court in United States v. Ramsey, 431 U.S. 606 (1977), and

argued that the absence of any legal authority compelled the

conclusion that the search was unreasonable.°

The Court of Appeals held that the lack of statutory author-

ity and the fact that the search violated administrative regula-

tions did not require application of the exclusionary rule. 699

F.2d at 29.° The court mistakenly relied upon United States

v. Caceres, 440 U.S. 741 (1979), which held only that the mere

violation of administrative regulations which were not re-

quired by the Constitution or by statute would not compel ap-

plication of the exclusionary rule. This case /hould have been

analyzed pursuant to the principles set forth in United States

v. Ramsey, supra, and Miller v. United States, 357 U.S. 301

(1958), rather than under Caceres.

In Ramsey. the question was the lawfulness of the inspec-

tion of incoming international mail. This Court treated the

question of whether there was statutory authority for such an

inspection as a threshold issue in the case, and found authority

under 19 U.S.C. § 482.’ After finding statutory authority for

the search, the court held that it had been reasonable under

the Fourth Amendment. Both the majority and dissenting

opinions treated the existence of statutory authority as the

5 Petitioner's argument was based on the holding of the court in United

States v. Williams, 617 F.2d 1063 (5th Cir. 1980) (en banc). The First Cir-

cuit’s failure to adopt that analysis has led to a serious conflict between the

circuits, as is explained more fully infra at Section II A.

® Coast Guard officers are subject to Customs regulations when enforcing

laws administered by the Customs Service. 14 U.S.C. §§ 89(b), 143. They

are therefore subject to 19 C.F.R. § 162.3(a), which prohibits them from

boarding foreign vessels on the high seas in the absence of an agreement with

the flag state.

* The Government had argued that there were other sources of statutory

authority for the search. Had the court not found authority under 19 U.S.C.

§ 482, it wouid have had to determine whether there was any other statutory

basis for the search. 431 U.S. at 615 n.10.

decisive question in the case. The dissenting justices would

have invalidated the search on the basis of their conclusion

that there was no statutory authority for it. 431 U.S. at 632.

Earlier, in United States v. Brignoni-Ponce, 422 U.S. 873

(1975), the Court had employed the same analysis. It asked

first whether there was any statutory authority for the search

in question, and then, when authority was found, turned to

the constitutional question of whether the search was nonethe-

less valid.

This analysis is appropriate in search and seizure cases be-

cause of the well settled rule that actions taken by inferior

governmental agents which raise serious constitutional ques-

tions will not be upheld unless they are at least warranted by

specific legal authority granted by the President or Congress.

Thus, in Greene v. McElroy, 360 U.S. 474 (1959), the Court

reversed the revocation of a government contractor's security

clearance because the procedures employed had not been |

authorized by the President or Congress. The Court declared:

[E]xplicit action, especially in areas of doubtful constitu-

tionality, requires careful and purposeful consideration

by those responsible for enacting and implementing our

laws. Without explicit action by lawmakers, decisions of

great constitutional import and effect would be relegated

by default to administrators who, under our system of

government, are not endowed with authority to decide

them. Id. at 507.

The Court employed the same reasoning in Hannah v. Larche,

363 U.S. 420 (1960), where the issue was whether Congress

had authorized the Civil Rights Commission to adopt certain

procedures.

Serious constitutional issues are raised when a foreign ship is

boarded on international waters without a warrant and with-

out flag-state consent.* First, warrantless searches are

presumptively invalid under the Fourth Amendment, “subject

only to a few specifically established and well-delineated ex-

ceptions.” Katz v. United States, 389 U.S. 347, 357 (1967).

This principle should be applied to searches at sea, particu-

larly where, as here, there is ample time to obtain a warrant

before boarding.® A second issue is whether probable cause is

required to stop and board a vessel, or whether “reasonable

suspicion” that criminal activity is afoot will suffice.'° A third

issue is whether the Coast Guard may randomly stop ships on

the high seas, or whether such boardings would be unconstitu-

® These cases have provoked a storm of controversy in the law journals.

See, e.g., High on the Seas: Drug Smuggling, the Fourth Amendment, and

Warrantless Searches at Sea, 93 Harv. L. Rev. 725 (1980) (hereafter, “Harv.

Note”); Brin, The Fourth Amendment Adrift: Search and Seizure on the

High Seas, 26 Loyola L. Rev. 1017 (1980); Ficken, The 1935 Anti-Smuggling

Act Applied to Hovering Narcotics Smugglers Beyond the Contiguous Zone:

An Assessment Under International Law, 29 U. Miami L. Rev. 700 (1975);

Smith, Search and Seizure of Foreign Vessels in International Waters —

Adrift with the Fourth Amendment, 5 Suffolk Trans. L. J. 141 (1980);

Smoke on the Water: Coast Guard Authority to Seize Foreign Vessels

Beyond the Contiguous Zone, 13 N.Y. U. J. Int'l. L. and Pol. 249 (Fall,

1980); Fourth Amendment Afloat: Customs Searches, Drug Smuggling and

the Balancing Test in the Fifth Circuit, 68 Ga. L. J. 1035 (Apr. 1980).

®See, Harv. Note, supra at 727-731. If the Court grants the petition for

certiorari and holds that evidence seized during the search of petitioner’s ship

must be suppressed because the search was not authorized by 14 U.S.C.

§ 89(a), it will be unnecessary to reach the issue of whether the Fourth

Amendment precludes such searches without a warrant. However, if the

Court finds that there was legal authority for the search, then petitioner re-

quests the Court to consider whether a warrant was required.

'0The First Circuit has held that only “reasonable suspicion” is required.

United States v. Green, 671 F.2d 461 (Ist Cir. 1982). The lower courts in

this case found that probable cause existed, a conclusion which petitioner

disputed.

tional under the iationale of Delaware v. Prouse, 440 U.S. 648

(1979).'! The list of potentially troubiesome constitutional

questions is lengthy and the resolution of these issues to date

has provoked enormous confusion in the lower courts and dis-

agreement among the commentators. In the face of these con-

stitutiona! problems, the court below should have held that at

a minimum statutory authority was required to validate the

search.

United States v. Caceres, supra, which was relied upon by

the Court of Appeals for its decision, only controls where a

defendant’s sole complaint is that an action violated agency

regulations. This Court in Caceres repeatedly noted that the

agency regulations in issue were not required either by the

Constitution or any federal statute, and explicitly distin-

guished the case from Miller v. United States, supra, in which

government agents had violated a statute. Thus, the Court of

Appeals was plainly wrong when it concluded, citing Caceres,

that: “The Supreme Court has held that lack of statutory

authority and the contravention of a regulation do not auto-

matically invoke the exclusionary rule.” 699 F.2d at 29.

The evidence in this case should have been suppressed for

the same reason the exclusionary rule was invoked in Miller v.

United States, supra. There, agents had entered a residence

without knocking or announcing their presence and purpose.

The Court held that the entry was a violation of 18 U.S.C.

§ 3109, and that even though the search took place in the

District of Columbia, application of the exclusionary rule was

required in order to enforce the common law and congressional

''\Compare, United States v. Piner, 608 F.2d 358 (9th Cir. 1979), with

United States v. Hilton, 619 F.2d 127, 132-133 (1st Cir. 1980). The board-

ing in this case was not a random stop. However, it did violate Customs

regulations, 19 C.F.R. § 162.3(a), which raises a question of an unreason-

able exercise of authority by officers in the field, one of the concerns the

Court addressed in Delaware v. Prouse, supra.

purposes behind the statute.'* Here, there was both an

absence of domestic statutory authority for the search ard a

violation of international common law, as set forth in the Con-

vention on the High Seas. This should be treated as equivalent

to a violation of statutory norms which requires application of

the exclusionary rule.

B. The Court of Appeals Resurrected a Standing Require-

ment in the Litigation of Fourth Amendment Claims,

Contrary to this Court’s Ruling in Rakas v. Illinois, 439

U.S. 128 (1978).

The Court of Appeals held that petitioner was not entitled

to invoke the exclusionary rule in this case, even assuming that

the search violated international law, was not authorized by

14 U.S.C. § 89(a), and violated administrative regulations.

The court held:

A related way to reach the same conclusion is to say

that Hensel lacks ‘standing.’ That is, Hensel is not en-

titled to invoke the exclusionary rule on his own behalf,

for any violation of international law invaded not his

rights but rather the rights of Honduras.

699 F.2d at 30.

In so ruling, the court below mistakenly required Hensel to

establish “standing” to challenge an illegal search by demonstrat-

ing that the law under which the search was said to be illegal had

been enacted for his benefit. This Court has explicitly aban-

doned any “standing” requirements for the litigation of Fourth

Amendment claims on motions to suppress, and requires only

that an individual demonstrate a legitimate expectation of

privacy in the areas searched. Rakas v. Illinois, 439 U.S. 128

(1978); United States v. Salvucci, 448 U.S. 83 (1980).

'2 The outcome in Miller was not determined by the application of constitutional

law. Indeed, the Fourth Amendment is not mentioned in the Court's decision.

The search in this case was of commercial premises, a mer-

chant ship. The court should have analyzed the case in terms

of whether petitioner, the admitted captain of the ship, had a

legitimate expectation of privacy on board. An expectation of

privacy in commercial premises is clearly reasonable as a gen-

eral matter. Marshall v. Barlow’s inc., 436 U.S. 307 (1978);

Donovan v. Dewey, 452 U.S. 594 (1981). Petitioner's expecta-

tion of privacy on board a foreign merchant ship on interna-

tional waters was also objectively reasonable, inasmuch as it

was protected by international law, applicable federal regula-

tions and the absence of any United States statute authorizing

the search.'*

The Court of Appeals, however, did not discuss whether

petitioner could invoke the exclusionary rule in those terms.

The court simply concluded that because petitioner’s claim

that the search was not authorized by 14 U.S.C. § 89(a) was

based, in part, on a claim that the search violated internation-

al law, that he would have no “standing” to raise the issue. '*

This decision represents a complete departure from the line of

authority established by this Court since Rakas v. Illinois,

supra, and the Court should grant certiorari to reverse the

lower court on this issue.

'3 Article 6 of the Convention of the High Seas, opened for siznature, April

29, 1958, 13 U.S.T. 2312, T.1.A.S. No. 5200, 450 U.N.T.S. 11 (entered into

force Sept. 30, 1962) provides that the flag state has the exclusive right to ex-

ercise jurisdiction over a vessel on the high seas. As noted above, Customs

regulations recognize this principle. 19 C.F.R. § 162.3(a). The existence of

the regulations in this case is relevant to the reasonableness of petitioner’s ex-

pectation of privacy. Cf., United States v. Caceres, supra at 753. Petitioner's

argument that 14 U.S.C. § 89(a) does not authorize a search of a foreign

vessel on international waters without flag state consent is described more

fully infra at Section IJ B.

'* This conclusion is particularly anomalous given the fact that the Court

of Appeals recognized that petitioner, as captain of the ship, would have

“standing” to sue for damages based upon an illegal search. 699 F.2d at 30.

Ii. THe DECISION OF THE CouRT OF APPEALS BELOW

CREATES CONFLICTS IN THE DECISIONS OF THE

Courts OF APPEALS.

A. The Courts of Appeals, in Cases Involving Searches of

Foreign Ships on the High Seas, are in Conflict as to

Whether the Principles of United States v. Ramsey,

supra, or United States v. Caceres, supra, Apply to the

Need for Legal Authority for Such a Search.

The holding of the Court of Appeals that the absence of any

statutory or other authority for the search of petitioner’s ship

did not require suppression of the evidence and did not compel

application of the exclusionary rule created a conflict in the

decisions of the Courts of Appeals on this issue.'> The conflict

is sharpest between the First and Fifth Circuits. The latter

has held that legal authority is required for United States of-

ficers to search a foreign vessel on the high seas, and that the

absence of authority would render such a search unreasonable

under the Fourth Amendment:

The two part structure of the Supreme Court's analysis

in Ramsey implies that a warrantless seizure or search in

the complete absence of authority — a lawless govern-

ment intrusion — is unconstitutional per se. If it were

possible for an unauthorized seizure or search to be

reasonable in a fourth amendment sense, then the

presence or absence of authority would be merely a factor

to be considered by the court in assessing reasonableness;

instead, Ramsey poses the issue of authority as a threshold

determination. In other words, if the government can

'S Petitioner has discussed supra in part I A his contention that the lower

court was mistaken in its reading of Caceres.

point to no authority for a challenged search or seizure, a

court must conclude, without any further consideration,

that the search or seizure was unconstitutional.

United States v. Williams, 617 F.2d 1063, 1074 (5th Cir. 1980)

(en banc).

Williams was a marijuana smuggling case, in which a for-

eign ship had been boarded on the high seas by the Coast

Guard. Thus, the First and Fifth Circuits are squarely in con-

flict on the need for authority for such a search. The Eleventh

Circuit has adopted the same view as the Fifth. United States

v. Garcia, 672 F.2d 1349, 1367 n.30 (11th Cir. 1982).

The decision of the court be!ow is also in conflict with ap-

plicable law in the Ninth Circuit. In United States v. Soto-

Soto, 598 F.2d 545 (9th Cir. 1979), the defendant's truck had

been searched at the border by an FBI agent. He challenged

the search on the ground that the agent was not authorized by

law to make such a search, in contrast to Customs agents who

are authorized to make border searches. The court held that

the agent was not authorized and that therefore the search

violated federal statutes and the evidence seized should have

been suppressed. The court explicitly distinguished United

Staies v. Caceres, supra, and held that it was not applicable to

a situation where there was a violation of a federal statute. It

held that the case should be analyzed under Miller v. United

States, supra, as asserted by petitioner here.

The decision of the court below is thus in conflict with deci-

sions of the Fifth, Ninth and Eleventh Circuits, and this Court

should agree to hear this case to resolve the conflict.

B. The Courts of Appeals are in Conflict as to Whether

Title 14 U.S.C. § 89(a) Provides Authority for the Search

of a Foreign Vessel on International Waters without Flag

State Consent.

The court below held that 14 U.S.C. § 89(a) provided no

authority for searches of foreign vessels in violation of inter-

national law, although it ultimately ruled, in effect, that no

such authority was required. 699 F.2d at 27. Ironically, the

Fifth Circuit has held that such authority is required, but that

§ 89(a) provides it. United States v. Williams, supra; United

States v. Postal, 589 F.2d 862 (5th Cir. 1979}; United States v.

Cadena, 585 F.2d 1252 (5th Cir. 1978). The two circuits are

thus in direct conflict with regard to this extremely important

question of the statutory authority of the United States Coast

Guard.

The question of the meaning of § 89(a), which is at the bot-

tom of the conflict, is extremely significant because it involves,

unde: .he applicable principles of statutory construction, con-

sideration of international law concerns. See, Murray v. The

Charming Betsy, 6 U.S. (2 Cranch) 64 (1804); Weinberger v.

Rossi, 456 U.S. 25 (1982). Petitioner argues that an interpre-

tation of § 89(a) that authorizes the Coast Guard to board for-

eign vessels on international waters without flag state consent

would violate accepted international law principles.'® Article

22 of the Convention on the High Seas, supra, recognizes only

very narrow exceptions to the principle that the flag state has

the exclusive right to exercise jurisdiction over a vessel on the

‘Petitioner also contends that the legislative history of § 89(a) demon-

strates no congressional intent to authorize searches of foreign vessels on the

high seas in violation of international law. This argument was accepted by

the court below. 699 F.2d at 27.

high seas.'’7 None of the recognized exceptions allow inter-

ference with foreign ships for the purpose of interdicting sus-

pected drug smugglers.

Resolution of this issue by this Court is particularly urgent

because there is not only a conflict between the Courts of Ap-

peals on this issue, but also apparently between the Justice

Department and other executive departments. All of the

spokespersons from executive departments which appeared

before Congress to testify concerning legislation in this area

have officially taken the position that the Coast Guard cannot

board foreign vessels on the high seas without flag state

permission. '®

'7 The Convention on the High Seas did not attempt to make new law, but

to set forth and clarify previously well-accepted principles which had con-

stituted an international common law of the sea. United States v. Williams,

supra, at 1090; see, generally, Jessup, The United Nations Conference on the

Law of the Sea, 59 Colum. L. Rev. 234 (1959).

'8 At the hearings before the House Committee on the bill which eventually

became 21 U.S.C. § 955, the following witnesses agreed that international

law precluded such boardings: Rear Admiral Norman C. Venzke, Chief,

Office of Operation, U.S. Coast Guard; W. Gordon Fink, Assistant Adminis-

trator for Intelligence, Drug Enforcement Administration; John D. Negro-

ponte, Deputy Assistant Secretary of State for Oceans and Fisheries Affairs;

Stuart P. Seidel, Assistant Chief Counsel, Enforcement and Operations, U.S.

Customs Service. Coast Guard Drug Interdiction Hearings Before a Sub-

committee of the House Committee on Merchant Marine and Fisheries, 95

Cong., 2d Sess., pp. 108, 111, 112, 170, 212-214, 216, 221.

The State Department representative, Mr. Negroponte, specifically re-

jected any drug trafficking exception to the international law principle of

non-interference with ships of another nation:

If I understand you correctly, what you are suggesting is elevating

narcotics trafficking to the kind of offense of let’s say piracy or some-

thing of that nature.

I think that our department'’s position up until now has been not to

encourage seeking that kind of change in international law.

This is a very difficult problem, Mr. Treen. This very subcommit-

tee’s name is called Coast Guard and Navigation, and it is a question

Yet, prosecutors from the Department of Justice continue to

assert in individual criminal cases, as here, that § 89(a) has

given the Coast Guard this power.

This Court should grant certiorari in this case both for the

purpose of resolving a conflict among the Courts of Appeals

and for the purpose of settling a disputed question of statutory

interpretation, confusion over which could have grave conse-

quences for the United States under international law.

Conclusion.

For the foregoing reasons, it is respectfully requested that

this Honorable Court issue a writ of certiorari to review the

judgment of the United States Court of Appeals for the First

Circuit.

Respectfully submitted,

MICHAEL AVERY,

2 Park Square,

Boston, Massachusetts 02116.

(617) 451-9461

of balancing two important sets of national priorities, one which is that

of stamping out illicit drug traffic and the other doing what we think is

reasonable in terms of protecting navigational freedoms. We have a

great deal of confidence in our own law enforcement authorities, and

the kind of judgments that they use in exercising their jurisdiction

against others, but there are other countries who could use these kinds

of prohibitions as pretext for just downright harrassment. Coast Guard

Drug Interdiction: Hearings, supra at 216.

Appendix.

Table of Contents.

Opinion, United States District Court, D. Maine,

March 20, 1981 la

Opinion, United States Court of Appeals, First Circuit,

January 25, 1983 27a

Judgment 8la

UNITED STATES of America

David Keith HENSEL et al.

Crim, No. 80-000030 P.

United States District Court,

D. Maine.

March 20, 1981.

In a drug prosecution and on motions to suppress evidence

and statements, after evidentiary hearing, the District Court,

Gignoux, C.J., held that: (1) implicit in holding that par-

ticipation of United States Coast Guard was sufficient to trig-

ger application of Fourth Amendment was conclusion that

Canadians were acting “under the aegis of” the Americans,

and thus there could be no improper delegation of authority

conferred upon Coast Guard by statute, and statutory authori-

ty of Coast Guard could be invoked to authorize actions of the

Canadians; (2) circumstances of record established probable

cause for search and seizure of vessel; (3) warrant requirement

of Fourth Amendment does not apply to maritime searches

and seizures; and (4) consumption of alcohol by defendant did

not require finding that he lacked capacity to think clearly and

rationally or finding that statements which he made to Cana-

dian agents were involuntarily made, but, rather, on record,

Government carried its burden of establishing any preponder-

ance of evidence that his statements were voluntary.

Motions denied.

1. Searches and Seizures — 7(29)

To contest search and seizure on Fourth Amendment

grounds, defendant has burden of establishing that he had

legitimate and reasonable expectation of privacy in premises

searched or property seized. U.S.C.A. Const. Amend. 4.

2. Criminal Law — 394.2(2, 3)

Fourth Amendment exclusionary rule does not apply to ar-

rests and searches made by foreign authorities on their home

territory and in enforcement of foreign law even if persons ar-

rested and from whom evidence is seized are American

citizens, but there are exceptions such as where circumstances

shock judicial conscience or where American law enforcement

officials participated in foreign search or if foreign authorities

actually conducting search were acting as agents for American

counterparts. U.S.C.A.Const. Amend. 4.

3. Shipping — 9

Use of weapons to effectuate stop of vessel did not constitute

excessive force where vessel did not stop until shots had been

fired.

4. Searches and Seizures — 7(1)

Although question was close, extent of cooperation between

United States Coast Guard and Canadian officials in pursuit,

boarding and search of vessel required conclusion that joint

venture existed, compelling application of the Fourth Amend-

ment, the record disclosing that the United States Coast Guard

instigated, coordinated and closely collaborated with the

Canadians in effectuating seizure and search. U.S.C.A.Con-

st. Amend. 4.

5. Searches and Seizures — 3.9

In determining whether boarding and search of vessel

violated Fourth Amendment rights, court would first inquire

whether Coast Guard had statutory authority to seize and

search the vessel and then whether search and seizure,

although authorized, violated Fourth Amendment. 14

U.S.C.A. § 89(a); U.S.C.A.Const. Amend. 4.

6. Search and Seizures — 7(1)

Implicit in holding that participation of United States Coast

Guard was sufficient to trigger application of Fourth Amend-

ment was conclusion that Canadians were acting “under the

aegis of” the Americans, and thus there could be no improper

delegation of authority conferred upon Coast Guard by

statute, and statutory authority of Coast Guard could be in-

voked to authorize actions of the Canadians. 14 U.S.C.A.

§ 89(a); U.S.C.A.Const. Amend. 4.

7. Shipping — 9

Record showing that for several days crew of boat had seen

vessel lying idly with no apparent purpose just outside United

States waters with one white man and several black men on

board and that two telephone numbers which white man re-

quested to call were listed to suspected drug smugglers and

check further revealed that vessel by same name was suspected

of drug smuggling and no flag was flown until approach was

made and vessel carried sophisticated electronic and radar

equipment and fled although white man had reported that

vessel was disabled and in need of assistance furnished prob-

able cause for Coast Guard to believe that vessel was engaged

in conspiracy to smuggle contraband into United States, and

made it reasonable to seize and search vessel. 14 U.S.C.A.

§ 89(a); U.S.C.A.Const. Amend. 4.

8. Searches and Seizures — 7(10)

Warrant requirement of Fourth Amendment does not apply

to maritime searches and seizures. 14 U.S.C.A. § 89(a);

U.S.C.A.Const. Amend. 4.

9. Criminal Law — 412.2(3)

Where american officers actively participate in arrest and

interrogation of defendant by foreign officials, Miranda warn-

ings must be administered prior to questioning, but where

United States agents do not actively participate in arrest and

interrogation, failure to give Miranda warnings does not in-

voke Fifth Amendment exclusionary rule. U.S.C.A.Const.

Amend. 5.

10. Criminal Law — 414

Consumption of alcohol by defendant did not require find-

ing that he lacked capacity to think clearly and rationally or

finding that statements which he made to Canadian agents

were involuntarily made, but, rather, on record, Government

carried its burden of establishing by preponderance of

evidence that his statements were product of rational intellect

and free will and were therefore voluntary. U.S.C.A.Const.

Amend. 5.

Thomas E. Delahanty, II, U. S. Atty., Margaret D.

McGaughey, Asst. U. S. Atty., Portland, Me., for plaintiff

United States of America.

John P. Ward, Michael Avery, Boston, Mass., for defendant

David K. Hensel.

Jack H. Simmons, Lewiston, Me., for defendant Gerald W.

Case.

Marshall A. Stern, Bangor, Me., for defendant Craig L.

Dill.

Theodore K. Hoch, Bath, Me., for defendant John T.

Downing.

Edward T. M. Garland, Atlanta, Ga., Joseph M. Hochadel,

Portland, Me., for defendant Larry R. Duke.

Peter J. Rubin, Portland, Me., for defendant Robert C.

Hubbard.

Peter J. DeTroy, III, Mark G. Lavoie, Portland, Me., for

defendant William Storey.

David C. Pomeroy, Portland, Me., for defendant Charles

T. Standley.

William P. Hardy, Lewiston, Me., Mark J. Kadish, Atlan-

ta, Ga., for defendant John J. Wells.

MEMORANDUM OF OPINION AND ORDER ON

DEFENDANT HENSEL’S MOTIONS

TO SUPPRESS

GIGNOUX, Chief Judge.

Nine defendants are charged in a one-count indictment with

conspiracy to possess with intent to distribute and to import in-

to the United States approximately 18.7 tons of marijuana, in

violation of 21 U.S.C. §§ 846 and 963. Presentiy before the

Court are defendant Hensel’s motions to suppress evidence and

statements pursuant to Fed.R.Crim.P. 12(b)(3) and 41.' An

evidentiary hearing has been held, the issues have been com-

prehensively briefed and argued by counsel, and the following

memorandum opinion contains the Court’s findings of fact

and conclusions of law as required by Fed.R.Crim.P. 12(e).

THE FACTS

A. The Pursuit, Boarding and Search of the PATRICIA — Ar-

rest of Defendant Hensel

At approximately 10:50 a. m. on May 31, 1980, the M/V

PATRICIA, a 65-foot vessel, later determined to be of Hon-

duran registry, was stopped by the Royal Canadian Mounted

Police (RCMP) after a 24-hour high seas chase. On board were

defendant David Keith Hensel, who is an American citizen,

eight Colombian nationals, and 18.7 tons of marijuana.

'Similar motions to suppress filed by the other eight defendants are the

subject of a separate opinion.

The PATRICIA had first come to the attention of the

United States Coast Guard (USCG) at approximately 10:30

a. m. on May 30 when the USCG Operations Center in Boston

(CG Command) received a radio message from the J. BRAD-

LEY O’HARA, a Rockland, Maine, fishing vessel, reporting a

disabled vessel in the Gulf of Maine. On May 28, the crew of

the O'HARA boat had first seen the PATRICIA in the Sewell

Ridge area approximately 90 miles southeast of Rockland. The

PATRICIA was not a familiar vessel in that area and did not

appear to be fishing. On May 30, the PATRICIA approached

the O'HARA boat and requested permission to use its radio.

The captain, later identified as defendant Hensel, explained

that his generator was not working, his radio batteries were

dead, and he wished to contact a “partner” in the area with

whom he planned to go to Canada to be rigged for fishing.

Hensel was told that he could use the radio in half an hour,

after the O’HARA’s fishing nets were hauled back. During

that half hour the captain of the O'HARA boat became

suspicious and informed the USCG that the PATRICIA was

disabled. When the PATRICIA again drew alongside after

the nets were hauled in, the O'HARA captain told Hensel he

could not come aboard and informed Hensel that he had

notified the Coast Guard. Hensel requested that the call be

canceled and, upon learning that the Coast Guard was already

on the way, gave the mate of the O'HARA boat three

telephone numbers and asked him to call them. Instead of

placing the calls, the captain of the O'HARA boat relayed

them to the Coast Guard.

The CG Command dispatched a Coast Guard aircraft and

the USCG Cutter RELIANCE to the scene with instructions to

locate the disabled vessel in the Sewell Ridge area. The air-

craft, piloted by Lt. Wayne Luginbuhl, arrived at Sewell

Ridge at approximately 11:25a.m. The PATRICIA was lying

dead in the water. Lt. Luginbuhl’s attempts to communicate

with the PATRICIA by radio were unsuccessful. He made

several low passes over the vessel and reported that it did not

appear to be fishing vessel, that the only identification was the

name PATRICIA on the bridgewing, and that it was not fly-

ing the flag of any country. He requested a check of the El

Paso Information Center (EPIC) computer. After the Coast

Guard plane circled the PATRICIA several times, to Lt.

Luginbuhl’s surprise, the vessel got underway and proceeded

in a northeasterly direction at five to ten knots per hour.

Shortly thereafter, the CG Command notified Lt. Lugin-

buhl that the EPIC check had revealed that a vessel named

PATRICIA was suspected of drug smuggling. He was

directed to track the PATRICIA until the RELIANCE could

reach her. Following standard operating procedure, Lt. Kent

Morris of the CG Command then notified Special Agent Ed-

ward Drinan of the Drug Enforcement Administration (DEA)

in Maine, and alerted the Canadian Coast Guard of the

possibility the PATRICIA was heading for Nova Scotia.

Lt. Luginbuhl maintained surveillance as the PATRICIA

headed generally northeast toward Nova Scotia. He attemp-

ted, without success, to communicate with the vessel by radio

and by smoke float. Finally, he dropped a message block

ordering the vessel to reverse course for rendezvous with the

RELIANCE.’ At the request of the CG Command, the Cana-

2It was learned afterward that the EPIC report related to another vessel of

similar description, also named PATRICIA, and not to the vessel in Sewell

Ridge on May 30.

>The dropped message read:

As a stateless vessel you are in possible violation of United States laws

and we as Federal Law Enforcement agents order you to reverse your

heading to 253° magnetic for rondevous [sic] and boarding by Coast

Guard Cutter Reliance.

Per order of Commander

First Coast Guard District

dian Coast Guard dispatched to the scene a Buffalo aircraft,

which relieved Lt. Luginbuhl at approximately 3:00 p. m.

The Canadian plane also attempted to communicate with the

PATRICIA by dropping a second message block, which was

not retrieved, and then tried unsuccessfully to divert the

vessel’s course with smoke floats. The PATRICIA continued

its way toward Nova Scotia at a speed of eight knots. At ap-

proximately 7:00 p. m., another USCG plane relieved the

Canadian Buffalo. Efforts to communicate with the Patricia

and to divert it from its course were again unsuccessful.

In the meantime, the Canadian Coast Guard had contacted

the Canadian Department of Fisheries to arrange for the use of

two vessels, should they be needed, and Cpl. Robert Janes of

the RCMP Halifax Drug Section was apprised of the possibility

that the PATRICIA was headed toward Nova Scotia, with

contraband on board. Direct communication between Cpl.

-Janes and Lt. Morris was established and maintained through-

out the night of May 30 and the early morning hours of May 31.

By 7:00 p. m. it became evident that the PATRICIA’s

course and speed would bring it into Canadian waters before

the RELIANCE could intercept it. Its destination appeared

to be the southern tip of Nova Scotia. Consequently, Cpl.

Janes contacted S/Sgt. Brogan of the RCMP Yarmouth detach-

ment to set up a communication network in Yarmouth. Sgt.

Brogan set up RCMP surveillance at 50-mile intervals along

the Nova Scotia coast, at Liverpool, Barrington and

Shelburne, and prepared to relay information from the Cana-

dian Coast Guard and Fisheries Department to the surveilling

agents. Cpl. Janes also advised Lt. Morris of the RCMP’s in-

tent to stop and board the PATRICIA if it came within 21

miles of the Canadian shore. At approximately 8:00 p. m.,

S/Sgt. Brogan dispatched the Canadian Fisheries vessel

LOUISBOURG from Yarmouth to intercept the PATRICIA.

Five RCMP agents accompanied the crew.

Lt. Morris was also in communication with DEA Agent

Drinan during the night of May 30-31. DEA investigation

and an EPIC check had revealed that two of the telephone

numbers the PATRICIA had asked the O'HARA mate to call

were for exchanges in Florida listed under the names of

Timothy Carey and Harvey Watkins, both of whom were sus-

pected of conspiring to import marijuana into South Carolina

in a vessel named HUH?.‘ The third telephone number was

for an exchange in Cobbtown, Georgia, but the identity of the

subscriber could not be identified at that time.* When this in-

formation was passed on to Drinan, he informed Lt. Morris

that the DEA was maintaining surveillance of a suspected

marijuana offloading site on the Maine coast and that vehicles

seen at the site were from Florida and Georgia. Drinan asked

that he be kept informed of any information the Coast Guard

obtained regarding the PATRICIA. At various points during

the night Drinan was also in communication with Cpl. Janes

and S/Sgt. Brogan of the RCMP, whom he had informed of

DEA’s Maine investigation. Drinan encouraged the Canadians

to seize the PATRICIA if the vessel entered Canadian waters.

Meanwhile, USCG aircraft continued surveillance of the

PATRICIA. They dropped other smoke bombs without suc-

cess and observed that the PATRICIA was operating without

navigational lights. At one point during the evening, one of

the pilots plotted the PATRICIA at 13.5 miles from the Nova

Scotia coast. Other plottings showed the PATRICIA to be

steering an erratic course which was within the 21-mile Cana-

dian limit for substantial periods of time.

* A coconspirator in that investigation had been one Wayne Dennis Hensel,

who was later determined to be the brother of defendant Hensel.

Sit was subsequently learned that several digits in the Georgia telephone

number had been transposed.

10a

The LOUISBOURG made radar contact with the

PATRICIA at approximately 3:00 a. m. and visually sighted

the vessel at 5:11 a. m. The RELIANCE arrived on the scene

at 6:00 a. m. Both vessels attempted to communicate with the

PATRICIA by radio, flag hoists, flashing lights and loud

hailer. The PATRICIA did not respond and headed further

east into the Atlantic Ocean. The operations officer on the

RELIANCE, Lt. Dennis Schenk, reported that the PATRICIA

was badly rusted and was riding below the waterline. No nets

or fishing gear were seeri above the deck. The name

PATRICIA appeared on the bridgewing, but no home port

was displayed, and no identifying numbers were visible on the

hull. The deck was poorly maintained with tire marks ap-

pearing on the starboard side. Two black crew members were

seen on deck, and substantial electronic and radar equipment

and antennas could be seen in or on the pilothouse. Lt.

Schenk also noted that the PATRICIA had raised and was fly-

ing an Honduran flag.

When the Honduran flag was observed, the RELIANCE,

upon instructions from the CG Command, informed the

LOUISBOUBG that, pursuant to the Coast Guard Command-

ant’s Instruction 16244.1, the Americans could not board the

PATRICIA without first obtaining permission from the United

States Department of State and Honduran government, via a

statement of “no objection” from the Commandant. The

RELIANCE informed the Canadians that it would take 24 to

48 hours to obtain such permission. This, and other informa-

tion about the PATRICIA, was relayed to DEA Agent Drinan,

and at 8:51 a. m. the RELIANCE received a “for information

only” teletype from the CG Command advising that DEA

agents were surveilling a suspected marijuana offloading site

at Turkey Cove, Tenant’s Harbor, Maine; that they were

prepared to close in and arrest those on the property; and that

they were interested in ascertaining the identities of those on

lla

board the PATRICIA as soon as possible. The Canadians had

also been apprised of the DEA’s interest in the vessel.

The RELIANCE passed the information regarding the sur-

veillance in Maine on to the LOUISBOURG, but informed the

Canadians that the RELIANCE could not take action to stop

and board the PATRICIA until permission was obtained from

the Honduran government. Cpl. Janes, upon hearing that the

RELIANCE would have to wait 24 hours or more before per-

mission to board could be obtained, consulted his superior and

was instructed that if the PATRICIA was then or had been

within Canada’s 21-mile limit, the Canadians should board

the vessel for suspected violation of Canadian customs laws.

At 9:01 a. m., the LOUISBOURG informed the RELIANCE

that if the RELIANCE were not going to take action, the

LOUISBOURG would. At 9:40 a. m., the LOUISBOURG

reported that it had received permission to board the

PATRICIA, but if circumstances became dangerous, it was to

cancel the boarding. The Canadians sought permission to

land a helicopter on board the RELIANCE if it was necessary

to bring reinforcements, and asked the RELIANCE to show its

fire power. The RELIANCE agreed, displaying a manned

three-inch gun at the bow, and stated that it would stand by,

and, if need be, would protect the LOUISBOURG in accord-

ance with the Coast Guard’s “use of force” policy.

The LOUISBOURG circled the PATRICIA at high speed in

an attempt to stop her with its wake action. When this

method failed, the RCMP Officers displayed 12-gauge

shotguns and fired a warning shot across the PATRICIA’s

bow. Two more shots were fired into the wheelhouse, and at

9:50 a. m. the PATRICIA came to a halt, approximately 65

miles off the southeast coast of Nova Scotia.

An armed party of RCMP, led by Cpl. Donald McRae,

boarded the PATRICIA. The RCMP ordered the crew of

eight Colombians and one American to the stern of the boat.

12a

Cpl. McRae went to the wheelhouse, where he discovered

documents indicating that in 1976 the PATRICIA had been

registered in Honduras to a Colombian national. Charts and

navigational aids were also found lying about in the wheel-

house. In the first cabin behind the wheelhouse on the port

side, later determined to be occupied by Hensel, radios and

other communications equipment were visible through the

door, which was bolted open. After loosening the bolts on two

closed hatches on the bow, Cpl. McRae discovered over 600

burlap bags containing a total of 18.7 tons of marijuana.

Hensel and the Colombians were then placed under arrest for

importation of a narcotic, and read the “primary warning”

which is routinely given by Canadian law enforcement agents

to criminal suspects, as follows:

You need not say anything. You have nothing to hope

from any promise or favor, and nothing to fear from any

threat, whether or not you say anything, and anything

you do say may be used as evidence.

Approximately one-half hour later, when the PATRICIA

and its crew were completely under RCMP control, Cpl.

McRae radioed the LOUISBOURG to request that the RELI-

ANCE send over Spanish speaking interpreters, if available, to

interview the eight Colombians, who spoke no English. The

RELIANCE responded by dispatching two interpreters. Lt.

Schenk also boarded the PATRICIA to obtain information on

the documentation and equipment on the vessel and to ascer-

tain for transmittal to the DEA the identities of those arrested.

Lt. Schenk stayed on board about an hour. He examined

documents, charts and electronic equipment in the pilothouse

and in Hensel’s cabin, and obtained the names, addresses and

dates of birth of the crew. Neither Lt. Schenk nor the RCMP

seized any evidence from the PATRICIA at this time.

13a

After the Americans had returned to the RELIANCE, the

Canadians secured the PATRICIA for towing to a Canadian

Fisheries’ facility in Shelburne, Nova Scotia.

B. The Interrogation of Defendant Hensel

RCMP Cst. William Parker stayed with Hensel during the

trip to Shelburne. During that time, Hensel provided Parker

with pedigree information such as his address, which he

claimed was in Connecticut. Hensel stated that he did not

know who the owner of the PATRICIA was. Other than say-

ing that the vessel was headed to Africa, he would not discuss

the subject of the PATRICIA’s cargo, or of the voyage. The

LOUISBOURG, with the PATRICIA in tow, arrived in Shel-

burne at about 8:00 p. m. The marijuana bales, radio equip-

ment and documents were unloaded from the vessel and

secured in RCMP storage facilities.

Hensel was taken to a nearby motel, where he was provided

dinner and a shower. Cst. Parker and another RCMP officer

accompanied Hensel to his room, and again gave him the

police caution which he had been given on board the

PATRICIA. Hensel indicated he understood it. He then ad-

mitted that Connecticut was not his proper address, and that

his true residence was Key West, Florida. At one point he

stated that he wanted a lawyer and was given the yellow pages

of a telephone book to look for one. The subject was dropped.

The conversation lasted about one hour.

At 11:00 a. m. the next morning, June 1, Hensel was taken

to the Shelburne RCMP headquarters for booking. During

the morning, RCMP Cst. Gary Grant and another Canadian

official searched the Nova Scotia coastline, from Shelburne to

Liverpool, by helicopter in search of any offloading site. A

search of two hours did not reveal such a site.

At 1:00 p. m., Hensel was interviewed at RCMP head-

quarters by Csts. Grant and Wayne Noonan. Before any

l4a

questions were asked, the agents recited the standard RCMP

“secondary warning on purged statement,” as follows:

I wish to give you the following warning. You must

clearly understand that anything said to you previously

should not influence you or make you feel compelled to

say anything at this time. Whatever you felt influenced

or compelled you to say earlier, you are not now

obligated to say anything further, but whatever you do

say will be taken down in writing and may be given in

evidence. You understand what had been said to you?

Hensel indicated he understood.

Initially, questioning focused on Hensel’s background, his

father’s suicide, his girlfriend, his knowledge of boating and

the sea. At 2:00 p. m. Hensel asked how he could contact an

attorney. He was advised that “you are not in the United

States now, son” and that at that time an attorney would not

be supplied.

Grant and Noonan employed a “good guy-bad guy” tech-

nique for interrogation. Grant expressed sympathy for the

defendant, while Noonan indicated that he did not care what

happened to defendant and pointed out that there was a

seven-year mandatory penalty in Canada for smuggling drugs.

The interview ended at 4:45 p. m.

Shortly thereafter, Hensel indicated he wished to talk to

Cst. Parker. At 6:00 p. m., Parker and another RCMP officer

brought Hensel a supper of chicken and french fried potatoes.

He drank three beers with the meal. Sometime thereafter

Hensel stated that he had been at sea for 21 days and the food

supply was nearly gone; that during the pursuit the Colom-

bian crew wanted to stop and leave the vessel; that the vessel

“HUH?”, which he claimed to own, was seized in South

Carolina, and his brother had been involved; that the contents

of the PATRICIA had not been destined for Canada but for

= 4 ta,

l5a

“the States”; and that he was to have been paid $400,000 for

the delivery, the crew members to receive 3500 pesos each.

The results of this discussion were passed on to Cpl. Janes

and to DEA Agent Drinan in Portland. Hensel then asked if

he could use the telephone. In the officers’ presence, he called

one Howie Fuguary in Florida, told him where he was, and

requested assistance. He also asked Fuguary to telephone a

person named Judy to let her know where he was.

The following day, June 2, Hensel was transported from

Shelburne to Halifax. Because the PATRICIA had not been

seen within 12 miles of the Nova Scotia coast, the Canadian of-

ficials concluded that jurisdiction to prosecute Hensel under

Canadian law could not be established. He was therefore in-

formed by the RCMP that no charges were to be prosecuted

against him in Canada.

On June 3, at an informal immigration hearing at which

Hensel was represented by counsel, Hensel waived any

challenge to expulsion from Canada and was put on board a

nonstop flight to Boston, accompanied by two RCMP officers.°®

Drinan was waiting at Logan Airport in East Boston when

the airplane arrived on the afternoon of June 3. After the

RCMP agents identified Hensel, Drinan asked Hensel if he

would accompany him to his office in Portland for a discussion

with the United States Attorney. He informed Hensel that he

need not agree to the request. Hensel asked what would hap-

pen if he refused. Drinan responded that he was not sure.

Hensel then asked permission to call his attorney.

At a nearby Customs office, and in Drinan’s presence,

Hensel telephoned an attorney in Boston to inform him of

Drinan’s request and to ask for his advice. He also instructed

the attorney to telephone a woman attorney in Pennsylvania,

“who would know who to call and know what to do.” Hensel

* The eight Colombians were deported to Colombia.

l6a

then handed the telephone to Drinan. After a conversation

with the attorney, and at his suggestion, Drinan placed Hensel

under arrest. He then informed Hensel of his Miranda rights.

A short time later, Hensel was brought before a United States

magistrate in Boston and charged with conspiracy to import

marijuana.

THE LAW

Defendant Hensel seeks to suppress all evidence seized by

the Canadian authorities from the PATRICIA, together with

the fruits of said search and any reference to such evidence, on

the ground that the boarding and search of the PATRICIA

violated his Fourth Amendment rights. In addition, defend-

ant seeks suppression of the statements and admissions made

by him while in Canadian custody, because obtained in viola-

tion of his Fifth Amendment rights. The Court will treat

separately each of these contentions.

A. The Boarding and Search of the PATRICIA

Defendant contends that the Canadian authorities boarded

and searched the PATRICIA “at the request or instruction and

with the knowledge and/or participation of” the United States

Coast Guard; that the Fourth Amendment to the United

States Constitution is therefore applicable; and that the board-

ing and search violated defendant’s Fourth Amendment rights

because made without legal authority and not based on either

reasonable suspicion or probable cause. The government

argues that the defendant is foreclosed from challenging the

validity of the boarding and search of the PATRICIA because

he had no reasonable expectation of privacy in the vessel or its

cargo; that the Canadian officers who boarded and searched

l7a

the PATRICIA were acting independently of the United States

Coast Guard and therefore the Fourth Amendment does not

apply; and that, in any event, defendant’s Fourth Amendment

rights were not violated because the boarding and search were

supported by adequate legal authority and justified both by

reasonable suspicion and by probable cause.

Although defendant probably had no reasonable expecta-

tion of privacy in the PATRICIA or its cargo, the Court

assumes for the purpose of this opinion that he may raise a

Fourth Amendment challenge to the boarding and search of

the vessel. The Court also concludes that the participation of

the United States Coast Guard in the seizure and search was

sufficiently substantial so that the Fourth Amendment is ap-

plicable. The Court holds, however, that the boarding and

search of the PATRICIA were supported by adequate legal

authority and justified both by reasonable suspicion and by

probable cause, and therefore did not violate any Fourth

Amendment rights defendant may have had.

1. The Defendant's Standing

[1] In order to contest a search or seizure on Fourth Amend-

ment grounds, a defendant has the burden of establishing that

he had a legitimate and reasonable expectation of privacy in

the premises searched or the property seized. Rawlings v.

Kentucky, 448 U.S. 98, 104-105, 100 S.Ct. 2556, 2561, 65

L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 130, 131

n.1, 148-49, 99 S.Ct. 421, 423 n.1, 433, 58 L.Ed.2d 387

(1978). By his own admission, defendant did not own the

PATRICIA or the marijuana seized from the vessel’s hold. Nor

did defendant claim that he had any property interest in the

communications equipment, charts or documents discovered

in the wheelhouse or in his cabin. Because vessels on the seas

are commonly subject to stops by Coast Guard and Customs

18a

officers for a variety of document and safety inspections, the

government persuasively argues that defendant could have

had little, if any, expectation of privacy in those parts of the

PATRICIA, such as the wheelhouse, the holds and Hensel’s ex-

posed cabin, that would be in the plain view of one conducting

such an inspection. There is substantial merit in this argu-

ment. See United States v. Williams, 617 F.2d 1063, 1075,

1084 (5th Cir. 1980) (en banc);’ United States v. Arra, 630

F.2d 836, 841 n.6 (Ist Cir. 1980). But since the Court con-

cludes, post, that the search and seizure were valid, for the

purposes of this opinion the Court will assume that defendant

has standing to raise his present Fourth Amendment attack.

2. The Applicability of the Fourth Amendment.

[2,3] The Fourth Amendment exclusionary rule does not

apply to arrests and searches made by foreign authorities on

their home territory and in the enforcement of foreign law

even if the persons arrested and from whom the evidence is

seized are American citizens. United States v. Rose, 570 F.2d

1358, 1361-62 (9th Cir. 1978); United States v. Marzano, 537

F.2d 257, 269-71 (7th Cir. 1976); United States v. Morrow,

537 F.2d 120 (5th Cir. 1976); Stonehill v. United States, 405

F.2d 738 (9th Cir. 1968), cert. denied, 395 U.S. 960, 89 S.Ct.

2102, 23 L.Ed.2d 747 (1969); Birdsell v. United States, 346

F.2d 775, 782-83 (5th Cir.), cert. denied, 382 U.S. 963, 86

S.Ct. 449, 15 L.Ed.2d 366 (1965). To this general rule there

are two exceptions. First, if the circumstances of the foreign

search and seizure are so egregious that they “shock the

judicial conscience,” exclusion of the evidence may be re-

7 Aithough the en banc Williams court felt that the record in that case was

insufficient to determine whether the defendant had some property interest

in the vessel or the marijuana seized, it agreed with the panel's holding that a

mere crew member could have no privacy interest in the holds of a cargo

vessel. 617 F.2d at 1084.

19a

quired. See, e.g., United States v. Toscanino, 500 F.2d 267,

276 (2d Cir. 1974) (physical torture). No such extreme con-

duct is alleged here.*®

“Second, if American law enforcement officials participated

in the foreign search, or if the foreign authorities actually con-

ducting the search were acting as agents for their American

counterparts, the exclusionary rule can be invoked.” United

States v. Morrow, supra at 139; United States v. Rose, supra

at 1362. The particular facts in each case must be examined to

determine whether the American officials so substantially par-

ticipated in the search and seizure as to convert it into a joint

venture between the United States and the foreign officials,

thereby triggering application of the Fourth Amendment.

United States v. Rose, supra; United States v. Morrow, supra;

Stonehill v. United States, supra at 743. Cf. Lustig v. United

States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949);

Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed.

520 (1927).

[4] Although the question is close, the Court is persuaded

that the extent of the cooperation between the United States

Coast Guard and the Canadian officials in the pursuit, board-

ing and search of the PATRICIA requires the conclusion that a

joint venture existed compelling application of the Fourth

Amendment. The surveillance which led to the stop of the

PATRICIA was initiated by the United States Coast Guard. It

was at the request of the Americans that the Canadians

became involved in the pursuit. DEA Agent Drinan urged the

Canadians to board if the vessel entered Canadian waters.

When it became apparent that the RELIANCE could not

board the PATRICIA until the consent of the Honduran gov-

* Defendant does not claim, nor could he, that the use of weapons to effec-

tuate the stop constituted excessive force. See United States v. Arra, supra at

845 n.11.

20a

ernment was obtained, the RELIANCE agreed to support a

boarding by the LOUISBOURG by displaying its fire power

and providing backup assistance if required. The RELIANCE

disptached two interpreters to the PATRICIA to help the

Canadians question the Spanish speaking crew. Lt. Schenk

also went aboard the PATRICIA. He accompanied Canadian

officers in a second search of the vessel; examined documents,

electronics equipment and charts; and obtained the identities

of the crew for submission to DEA Agent Drinan in Maine.

Clearly, this is not a case in which United States law en-

forcement officers were passively present at the scene of a

search and seizure, see United States v. Marzano, supra at 270;

not a situation in which United States officers merely fur-

nished information to foreign officials, see id.; United States v.

Morrow, supra at 140; and not an instance in which United

States officers were aware of and shared the fruits of a con-

tested foreign search but took no part in the actual operation,

see Stonehill v. United States, supra at 746. In the instant

case, the record discloses that the United States Coast Guard

instigated, cocrdinated and closely collaborated with the

Canadians in effectuating the seizure wand search of the

PATRICIA. In short, the participation of the Americans was

sufficiently substantial to permit defendant to invoke the pro-

tection of the Fourth Amendment. Cf. Lustig v. United

States, supra; Byars v. United States, supra.

3. The Constitutionality of the Boarding and Search

[5-8] In determining whether the boarding and search of

the PATRICIA violated defendant’s Fourth Amendment rights,

the Court employs the analysis developed by the Supreme

Court in United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 172,

52 L.Ed.2d 617 (1977), and subsequently utilized by the en

2la

banc Fifth Circuit in United States v. Williams, supra.° The

Court first inquires whether the Coast Guard had statutory

authority to seize and search the PATRICIA. The Court then

considers whether he seizure and search, although author-

ized, violated the Fourth Amendment.

(a) Statutory Authority. Secticn 89(a) of Title 14,

U.S.C.A., authorizes the Coast Guard to

make inquiries, examinations, inspections, searches,

seizures, and arrests upon the high seas and waters over

which the United States has jurisdiction, for the preven-

tion, 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 opera-

tion of any law, of the United States, address inquiries to

those on board, examine the ship’s documents and

papers, and examine, inspect, and search the vessel and

use all necessary force to compel compliance.

* In assessing the validity of a Coast Guard search of a foreign vessel on the

high seas, the Williams court explained the Ramsey two-part analysis as

follows:

The two-part structure of the Supreme Court's analysis in Ramsey

implies that a warrantless seizure or search in the complete absence of

authority — a lawless governmental intrusion — is unconstitutional

per se. If it were possible for an unauthorized seizure or search to be

reasonable in a fourth amendment sense, then the presence or absence

of authority would be merely a factor to be considered by the court in

assessing reasonableness; instead, Ramsey poses the issue of authority

as a threshold determination. In other words, if the Government can

point to no authority for a challenged search or seizure, a court must

conclude, without any further consideration, that the search or seizure

was unconstitutional. On the other hand, if it can be established that

the search or seizure was authorized, the court must then determine

whether the search or seizure, as authorized, was reasonable within

the meaning of the fourth amendment.

617 F.2d at 1074.

22a

14 U.S.C.A. § 89(a).

In United States v. Williams, supra, recently decided by the

Fifth Circuit, the court held that Section 89(a) authorizes the

Coast Guard to seize and search a foreign vessel in interna-

tional waters if the Coast Guard first has a reasonable suspi-

cion that those aboard the vessel are engaged in a conspiracy to

smuggle contraband into the United States and that there is

contraband in the hold of the vessel. In United States v.

Hilton, 619 F.2d 127, 131 (1st Cir. 1980), the Court of Appeals

for this Circuit indicated that the Coast Guard could not con-

stitutionally conduct a search more extensive than a document

and safety inspection except by consent or where probable

cause existed. The Hilton opinion was issued, however,

before the en banc opinion in Williams, and the First Circuit

has not yet decided whether to adopt the Fifth Circuit’s view

that probable cause is not required for a Coast Guard board-

ing and search of a vessel on the high seas in situations which

do not fall within the document and safety rationale. See

United States v. Arra, supra at 841 n.8. It is not necessary for

this Court to anticipate whether the First Circuit will adopt

the Fifth Circuit’s Williams formulation, as the record in the

present case more than adequately supports the conclusion

that the Coast Guard had probable cause to believe that those

aboard the PATRICIA were engaged in a conspiracy to smug-

gle contraband into the United States and that there was

contraband aboard the vessel.'°

'°The Court rejects defendant's contention that since it was the Canadian

officials who actually stopped, boarded and first searched the PATRICIA,

Section 89(a) cannot be invoked to authorize their actions. The Court has

found that the Canadians and the Americans were engaged in a joint venture

in the boarding and search of the vessel. Implicit in the holding that the par-

ticipation of the United States Coast Guard was sufficient to trigger applica-

tion of the Fourth Amendment, is the conclusion that the Canadians were ac-

ting “under the aegis of” the Americans. In such circumstances, there was

no improper delegation of the authority conferred upon the Coast Guard by

23a

For several days the crew of the O'HARA boat had seen the

PATRICIA lying idly with no apparent purpose in the Gulf of

Maine just outside United States waters, with one white man

and several black men on board. An EPIC check disclosed

that two of the land line telephone numbers which the white

man requested the O'HARA captain to call were listed to sus-

pected drug smugglers and suggested a possible connection be-

tween the PATRICIA and a suspected drug offloading site in

Maine. An EPIC check further revealed that a vessel named

PATRICIA was suspected of drug smuggling. The PATRI-

CIA had no fishing gear or nets on deck, yet sat low in the

water. The only identification was the name PATRICIA on

the bridgewing. The vessel did not fly the flag of any country

until approached by the LOUISBOURG and the RELIANCE,

at which time it raised an Honduran flag. The PATRICIA

carried sophisticated electronic and radar equipment. When

the first Coast Guard plane arrived, the vessel got underway

and fled, although the white man had reported to the

O’HARA boat that she was disabled and in need of assistance.

During the ensuing pursuit, the PATRICIA continuously re-

fused to identify herself, to stop, or to deviate from her north-

easterly course, despite repeated attempts by the Coast Guard

to communicate with the vessel by radio, message block,

smoke floats, flag hoists and loud hailer. During the entire

night the PATRICIA was under observation, the vessel was

operating without navigational lights, steering an erratic

course toward the open sea. Only after the RCMP aboard the

LOUISBOURG opened gunfire did the PATRICIA finally

come to a stop. These facts add up to ample probable cause

for the Coast Guard to believe that the PATRICIA was engaged

Section 89(a). See United States v. Warren, 578 F.2d 1058, 1067 (5th Cir.

1978), rev'd on other grounds, 612 F.2d 887; United States v. Bates, 526 F.2d

966, 967 (5th Cir. 1976).

24a

in a conspiracy to smuggle contraband into the United States.

The seizure and search of the vessel were therefore authorized

by Section 89(a).''

(b) Constitutionality. The Court has held that the Coast

Guard undoubtedly had not only reasonable suspicion but

probable cause to believe that the PATRICIA was engaged in

a conspiracy to smuggle contraband into the United States.

Whether or not the First Circuit adheres to the suggestion in

Hilton that the Coast Guard cannot constitutionally conduct a

nonconsensual search, other than a document and safety in-

spection, except upon probable cause, or decides to adopt the

Fifth Circuit view which would permit such a search upon a

reasonable suspicion standard, the existence of probable cause

in the present case unquestionably satisfies the Fourth Amend-

ment requirement of “reasonableness.” See United States v.

Williams, supra. See also United States v. Hilton, supra;

United States v. Arra, supra.'* The seizure and search of the

PATRICIA did not violate any Fourth Amendment rights de-

fendant may have had.

B. The Interrogation of Defendant Hensel

Defendant Hensel centends that the statements made by

him while in Canadian custody were obtained in violation of

'! Because the Court concludes that Section 89(a) authorized the seizure

and search, the Court need not consider whether, as the government urges,

the stop was authorized by the Canadian Customs Act, R.S.C. 1970, c. 4 § 1

et seq., or under the international common law doctrine of “right to ap-

proach,” codified by Article 22 of the Convention on the High Sea, 13 U.S.T.

2312, T.1.4.S. No. 5200.

'2 As the Fifth Circuit observed in Williams, it follows from its conclusion

that the existence of reasonable suspicion satisfied the requirements of the

Fourth Amendment that the warrant requirement of the Fourth Amendment

does not apply to maritime searches and seizures. United States v. Williams,

supra at 1075. See United States v. Arra, supra at 842 n.7.

25a

his Fifth Amendment rights because he was not given the

warnings required by Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1956), and because his statements

were not voluntary. The Court disagrees.

[9] Where American officers actively participated in the ar-

rest and interrogation of a defendant by foreign officials,

Miranda warnings must be administered prior to questioning.

United States v. Emery, 591 F.2d 1266, 1267-68 (9th Cir.

1978). Where, however, United States agents do not actively

participate in the arrest and interrogation, the failure to give

Miranda warnings does not invoke the Fifth Amendment ex-

clusionary rule. United States v. Trenary, 473 F.2d 680, 681

(9th Cir. 1973); United States v. Chavarria, 443 F.2d 905 (9th

Cir. 1971); United States v. Nagelberg, 434 F.2d 585, 587 n.1

(2d Cir.), cert. denied, 401 U.S. 939, 91 S.Ct. 935, 28 L.Ed.2d

219 (1971). See also Pfeifer v. United States Bureau of Prisons,

615 F.2d 873, 877 (9th Cir. 1980). In such circumstances, the

rationale for excluding statements made by a defendant is not

present. As the Ninth Circuit pointed out in United States v.

Chavarria, supra at 905,

Miranda was intended as a deterrent to unlawful police

interrogations. When the interrogation is by the authori-

ties of a foreign jurisdiction, the exclusionary rule has lit-

tle or no effect upon the conduct of foreign police. There-

fore, so long as the trustworthiness of the confession satis-

fies legal standards, the fact that the defendant was not

given Miranda warnings before questioning by foreign

police will not, by itself, render his confession inadmis-

sible.

In the present case, no American agent was present or in

any way participated in the questioning of defendant by the

Canadian officers. Nor is there any suggestion that the Ameri-

26a

cans arranged for the Canadians to interrogate defendant in

order to circumvent the requirements of the United States

Constitution. Therefore, no purpose would be served by re-

quiring the Canadian police to comply with Miranda, and the

failure of the RCMP to give defendant Miranda warnings does

not render his statements inadmissible.

[10] The Court also rejects defendant’s contention that the

statements he made to the Canadian agents were involuntarily

made. The RCMP read to defendant the warnings required

under Canadian law before each of his three interviews. De-

fendant was 30 years old at the time of his questioning, and a

high school graduate. He suffered from no physical or mental

disabilities. The testimony of the Canadian officers, which

the Court accepts, is that he remained rational and composed

throughout the interviews. The officers also flatly contradict

defendant’s testimony that he was subjected to threats and

that he was under the influence of alcohol. Although defend-

ant drank several beers before making his last statements to Cst.

Parker, the consumption of alcohol does not require a finding

that he lacked the capacity to think clearly and rationally. See

United States v. Holmes, 632 F.2d 167, 168-69 (Ist cir. 1980).

In short, the government has carried its burden of establishing

by a preponderance of the evidence that defendant’s statements

were “the product of a rational intellect and a free will,” Town-

send v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d

770 (1963), and that they were therefore voluntary. Lego v.

Twomey, 404 U.S. 477, 482-87, 92 S.Ct. 619, 623, 30 L.Ed.2d

618 (1972); United States v. Holmes, supra.

ORDER

Defendant Hensel’s motions to suppress evidence and state-

ments are in all respects DENIED.

IT IS SO ORDERED.

27a

UNITED STATES of America, Appellee,

Vv.

David Keith HENSEL, Defendant,

Appellant.

UNITED STATES of America, Appellee,

Vv.

Gerald Wayne CASE, Larry Ronald Duke,

Robert Curtis Hubbard, Charles Thad Standley and

John Jacob Wells,

Defendants, Appellants.

UNITED STATES of America, Appellee,

Creig Lee DILL, Defendant, Appellant.

Nos. 81-1538 to 81-1540.

United States Court of Appeals,

First Circuit.

Argued Oct. 5, 1982.

Decided Jan. 25, 1983.

Rehearing and Rehearing En Banc Denied

in No. 81-1538 Feb. 28, 1983.

Seven defendants were convicted in the United States Dis-

trict Court for the District of Maine, Edward Thaxter Gig-

noux, Chief Judge, of conspiracy to import and distribute

marijuana and they appealed. The Court of Appeals, Breyer,

Circuit Judge, held that: (1) even if a search on the high seas

violated international law and was therefore not authorized

by statute, and even if it also violated coast guard regulations,

the exclusionary rule did not require suppression of its fruits;

(2) no hearsay evidence was admitted; (3) defendants had no

legitimate expectation of privacy in the license number of jeep

28a

parked in a driveway; (4) the evidence was sufficient to sustain

the convictions; (5) there was no error in admitting expert tes-

timony about general practices of drug smugglers; (6) defend-

ants were not improperly denied discovery; and (7) identifica-

tion of defendant by a witness at a chance encounter in a

courthouse snack bar did not violate defendants’ Fifth or Sixth

Amendment rights.

Affirmed.

See also 509 F.Supp. 1364 and 509 F.Supp. 1376.

1. Criminal Law 394.4(1)

Exclusionary rule applies to searches by American agents on

the high seas. U.S.C.A. Const.Amend. 4.

2. Criminal Law 394.2(2)

Exclusionary rule does not require suppression of evidence

seized by foreign police agents, except where foreign police

conduct shocks judicial conscience of where American agents

participated in foreign search, or foreign officers acted as

agents for their American counterparts. U.S.C.A. Const.

Amend. 4.

3. Criminal Law = 394.6(4)

In prosecution for conspiracy to import and distribute mari-

juana, district court’s finding that there was probable cause to

board and search boat on high seas was supported by the evi-

dence. U.S.C.A. Const. Amend. 4.

4. Shipping 9

Statute permitting Coast Guard to make searches and seiz-

ures upon the high seas did not authorize searches that violate

international law. 14 U.S.C.A. § 89(a).

5. International Law 10.1

Act of Congress ought never to be construed to violate law

of nations if any other possible construction remains.

29a

6. International Law 7

International law does not allow one nation to search on

high seas vessels belonging to another except in very special

circumstances.

7. Shipping 9

Though coast guard regulations specifically require its units

to obtain permission of coast guard commandant before

searching foreign vessels on high seas, and although command-

ant generally grants permission only after foreign state has

consented to search, violation of regulations does not auto-

matically constitute violation of international law.

8. Criminal Law 394.4(1)

Even if search on high seas violated international law and

therefore was not authorized by statute, and even if it also

violated coast guard’s “advance permission” regulation, exclu-

sionary rule did not require suppression of fruits of search.

14 U.S.C.A. § 89(a).

9. Criminal Law 404(4)

In prosecution for conspiracy to import and distribute mari-

juane, glass with one defendant’s nickname on it found at

premises owned by conspirators, which tended to tie that de-

fendant with conspirators, was not hearsay and was admis-

sible. Fed.Rules Evid. Rule 801(a) (2), 28 U.S.C.A.

10. Searches and Seizures 7(10)

Defendants had no legitimate expectation of privacy in

license number of jeep parked in their driveway where jeep

was parked only 100 to 200 yards from subdivision road and

was between that road and beach customarily used by public.

U.S.C.A. Const.Amend. 4.

11. Conspiracy 44%

To convict defendants of conspiring to import marijuana in-

to United States, Government bore burden of proving that

30a

each defendant knowingly and intentionally joined the con-

spiracy. Comprehensive Drug Abuse Prevention and Control

Act of 1970, §§ 406, 1013, 21 U.S.C.A. §§ 846, 963.

12. Criminal Law 419(1)

Possession is conduct and conduct is hearsay under Federal

Rules of Evidence only if intended as assertion. Fed.Rules

Evid.Rule 801 (a) (2), 28 U.S.C.A.

13. Conspiracy 47(12)

Evidence sustained seven defendants’ convictions of conspir-

acy to import and distribute marijuana. Comprehensive Drug

Abuse Prevention and Control Act of 1970, §§ 406, 1013, 21

U.S.C.A. §§ 846, 963.

14. Criminal Law — 829(3)

In prosecution for conspiracy to import and distribute mari-

juana, trial judge’s instructions on agreement, knowledge and

intent were adequate and he did not err in failing to give in-

structions on those issues submitted by defendant.

15. Criminal Law 469

In prosecution for conspiracy to import and distribute mari-

juana, expert testimony by Drug Enforcement Administration

agent about general practices of drug smugglers was admis-

sible. Fed.Rules Evid.Rules 403, 702, 28 U.S.C.A.

16. Criminal Law 627.6(2)

In prosecution for conspiracy to import and distribute mari-

juana, defendant was not entitled to discovery of Drug En-

forcement Administration and Justice Department documents

relating to marijuana smuggling, which he alleged were essen-

tial to cross-examination of the DEA agent's expert testimony

on drug smuggling in general, where agent did not indicate

that his opinions were predicated on those documents and

documents were only requested after agent testified on direct

examination.

3la

17. Criminal Law _—_627.8(2)

Request for discovery and inspection ordinarily must be

made before trial. Fed.Rules Cr.Proc. Rule 16, 18 U.S.C.A.

18. Witnesses 8

Federal Rule of Criminal Prowedure governing subpoenaes

gave district court adequate authority to deny subpoena where

production would have been unreasonable. Fed.Rules

Cr.Proc. Rule 17, 18 U.S.C.A.

19. Criminal Law 1044.1(2)

Defendants were barred from asserting on appeal that

Jencks Act and Freedom of Information Act supported his re-

quest for discovery where no FOIA or Jencks Act request was

made to district court. 5 U.S.C.A. § 552; 18 U.S.C.A. § 3500.

20. Criminal Law 627.6(2), 1166(1)

Transcript of witness’ testimony in prior trial did not come

within language of Jencks Act and, in any case, Government’s

failure to disclose such testimony to defendants would be

harmless error, since such testimony was part of public record.

18 U.S.C.A. § 3500.

21. Constitutional Law 266(3.2)

Fifth Amendment right to due process protects defendant

against unduly suggestive identification procedures. U.S.C.A.

Const.Amend. 5.

22. Criminal Law 339.10(3)

Witness’ chance encounter with and identification of

defendants in courthouse snack bar did not increase likelihood

that witness would identify defendants as criminals and did

not require suppression of his in-court identification of defend-

ants where incident was not orchestrated by Government, and

comments to witness by federal prosecutor to effect that wit-

ness might have such chance encounter with defendants, and

witness’ conversation with other witnesses, who assured him

32a

that defendants were easy to identify, did not increase likeli-

hood that witness would make mistaken identification.

U.S.C.A. Const.Amend. 5.

23. Criminal Law 641.2

Defendant’s Sixth Amendment right to counsel was not

violated when witness identified defendant at chance encount-

er with defendant in courthouse snack bar. U.S.C.A. Const.

Amend. 6.

24. Criminal Law 1036.1(4)

Defendants’ contention that government agents use of op-

tical equipment in observing them violated their Fourth

Amendment rights could not be raised on appeal where de-

fendants failed to present it to district court. U.S.C.A.

Const.Amend. 4.

Michael Avery, Boston, Mass., with whom John P. Ward,

Boston, Mass., was on brief, for appellant David Keith Hensel.

Edward T.M. Garland, Atlanta, Ga., with whom Steven

H. Sadow, and Garland, Nuckolls & Catts, P.C., Atlanta,

Ga., were on brief, for appellants Larry Ronald Duke and

Robert Curtis Hubbard.

David C. Pomeroy, Portland, Me., with whom Wheeler,

Pomeroy & Snitger, Portland, Me., was on brief, for appellant

Charles Thad Standley.

Bruce H. Morris, Atlanta, Ga., with whom Devine & Mor-

ris and Melvin Gutterman, Atlanta Ga., were on brief, for ap-

pellant Gerald Wayne Case.

33a

Mark J. Kadish, Atlanta, Ga., with whom Rosalyn S.

Kadish, and Kadish, Davis & Brofman, P.C., Atlanta, Ga.,

were on brief, for appellant John Jacob Wells.

Joseph Beeler, Miami, Fla., with whom Barbara Green,

Miami, Fla., was on brief, for appellant Creig Lee Dill.

Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me.,

with whom Richard S. Cohen, U.S. Atty., Portland, Me., was

on brief, for appellee.

Before TIMBERS, * Senior Circuit Judge, CAMPBELL and

BREYER, Circuit Judges

BREYER, Circuit Judge.

We here consider appeals from several defendants convicted

by jury trial of participating in a conspiracy to import and

distribute marijuana. Rather than write separate opinions in

these several cases, we here consolidate them and treat all the

appellants’ claims in one opinion. We first set forth the facts

upon which many of the defendants’ claims depend. Our de-

scription is based primarily upon that of the Maine federal

district court found in 509 F.Supp. 1364 and 509 F.Supp.

1376. We then consider the claims that raise the most difficult

legal issues — those of defendant Hensel — and we follow that

analysis with a consideration of the claims of the other defend-

ants. We affirrn all of the convictions.

The Facts

On the morning of May 31, 1980, after a 24-hour chase on

the high seas, a Canadian vessel stopped a 65-foot Honduran

shrimp boat 65 miles southeast of Nova Scotia. On board the

ship the police agents found defendant Hensel, a crew of eight

Colombians, and 18.7 tons of marijuana. Three days later

* Of the Second Circuit, sitting by designation.

34a

Maine state police and federal Drug Enforcement Administra-

tion (DEA) agents raided the secluded cove on the coast of

Maine where Hensel was to have delivered his cargo. They ar-

rested several of the defendants and gathered the evidence at

issue. We shall separately describe the events at sea and on

land.

At Sea

On May 28, 1980, a local fishing vessel, the J. BRADLEY

O’HARA, spotted an unfamiliar ship 90 miles southeast of

Rockland, Maine. The ship, the M/V PATRICIA, did not

seem to be engaged in fishing. Two days later, the PATRICIA

approached the O’HARA and Hensel, captain of the PATRI-

CIA, asked permission to use the O'HARA’s radio to contact a

“partner.” Hensel explained that his ship’s radio batteries

were dead and that its generator did not work. The crew of

the O'HARA assured Hensel that he could use the radio after

they had hauled in their fishing nets. During that time, how-

ever, the O’'HARA’s captain became suspicious and sent the

Coast Guard a message that the PATRICIA was disabled.

When the PATRICIA again approached the O'HARA, the

captain told Hensel he had contacted the Coast Guard, and he

refused to let Hensel use his radio. “I told him that we knew

what he was up to,” the mate of the O'HARA testified, “and

we didn’t want any part of it.” Hensel asked that the call be

cancelled, but the Coast Guard had already dispatched aid.

Hensel then asked the mate of the O'HARA to place three tele-

phone calls. The O'HARA, however, simply relayed the num-

bers to the Coast Guard.

The Coast Guard sent at least one plane and the cutter

RELIANCE to the scene. The plane piloted by Lt. Lugin-

35a

buhl arrived at about 11:25 and found the PATRICIA lying

dead in the water and flying no flag. Lt. Luginbuhl tried un-

successfully to communicate with the PATRICIA by radio.

After he had made several low passes over the ship, the

PATRICIA got underway and began sailing toward the north-

east.

Lt. Luginbuhl asked the E] Paso Information Center com-

puter to check the status of the PATRICIA and found that a

ship named the PATRICIA (later discovered to be a different

ship) was suspected of smuggling drugs. The Coast Guard or-

dered the lieutenant to follow the PATRICIA until the RELI-

ANCE arrived; it also notified Agent Drinan of the DEA in

Maine and the Canadian Coast Guard of the situation.

Lt. Luginbuhl continued to track the PATRICIA as it head-

ed toward Nova Scotia in the northeast. After further unsuc-

cessful efforts to communicate with the ship, he dropped a

message block ordering the PATRICIA to turn around so that

officers of the RELIANCE could board the ship. The PATRI-

CIA, however, maintained its course. By 3:00 p.m., a Cana-

dian Coast Guard plane arrived and at the request of the U.S.

Coast Guard relieved Li. Luginbuhl. This plane, too, tried to

communicate with the PATRICIA by message block, and it

tried to divert the ship from its course by using smoke floats.

Nevertheless, the PATRICIA continued toward Nova Scotia.

After about four hours, a U.S. Coast Guard plane resumed

tracking the PATRICIA, but it was no more able than its pred-

ecessors to communicate with the PATRICIA or to turn it

from its course.

By 7:00 p.m. it became clear the PATRICIA would escape

into Canadian waters before the RELIANCE could intercept

it. The Canadian authorities accordingly began their prepa-

rations to intercept the PATRICIA, and they dispatched their

ship LOUISBOURG. They told the DEA they would board

the PATRICIA if it came within Canadian waters, and Agent

Drinan encouraged them to do so.

36a

Meanwhile, the DEA discovered that two of the telephone

numbers Hensel had asked the O'HARA to call were listed in

the names of Florida men suspected of drug crimes. When

Agent Drinan learned that the third number was for a Georgia

exchange, he told the Coast Guard that the DEA had been

monitoring a suspected drug ring on the Maine coast which

used Georgia and Florida vehicles. American agents main-

tained contact with the Canadians throughout the night.

By 5:11 a.m. the Canadian ship LOUISBOURC was within

sight of the PATRICIA, and by 6:00 a.m. the American ship

RELIANCE had arrived. Both ships tried to communicate

with the PATRICIA, using not only radio but flag hoists, a

loud hailer, and flashing lights, but neither ship succeeded.

The PATRICIA appeared badly rusted and was riding below

its waterline. It displayed no nets or fishing gear and ap-

parently contained substantial electronic equipment. Al-

though it had the name PATRICIA on the bridgewing, it

showed no homeport and no identification numbers on the

hull. It had, by this time, hoisted a Honduran flag.

The RELIANCE notified the LOUISBOURG that since the

PATRICIA was a Honduran ship, the RELIANCE officers

could not board it without first obtaining the permission of the

State Department and the government of Honduras — a proc-

ess it expected to take 24 to 48 hours. The Canadians, how-

ever, believed that they could board the PATRICIA as soon as

it came within 21 miles of the Canadian coast. Soon after 9:00

a.m. they told the RELIANCE that, if the RELIANCE did

not act, they would. The RELIANCE in turn agreed to let the

Canadians land a helicopter on board it if necessary, assured

them that it would protect the LOUISBOURG, and apparent-

ly manned its fifty-caliber machine gun.

The Canadians swung the LOUISBOURG around the PA-

TRICIA at high speed in an attempt to stop it with its wake.

When that failed, they fired a 12-guage shotgun across the

37a

PATRICIA’s bow. The sailors aboard the PATRICIA ducked,

and the Canadians then aimed at the wheelhouse where three

or four men apparently stood. The Canadians blasted the

wheelhouse twice, and the PATRICIA came to a halt.

Three armed Canadian agents boarded the PATRICIA and

ordered the crew of eight Colombians and defendant Hensel to

the stern of the boat. They loosened the bolts on two closed

hatches at the bow of the ship and found over 600 burlap bags

containing 18.7 tons of marijuana. They arrested Hensel and

the Colombians and, because the Colombians spoke no Eng-

lish, used interpreters from the RELIANCE. One of the offi-

cers of the RELIANCE then boarded the PATRICIA to check

the documentation of the vessel and to inspect its equipment,

as well as to ascertain the identities of those arrested. The

Canadians towed the ship to Nova Scotia where they unloaded

it and stored the cargo.

After originally telling the Canadians that he was from Con-

necticut and that his ship was headed for Africa, Hensel ad-

mitted that his true address was in Florida, that the ship was

indeed headed for the United States, and that he was to have

earned $400,000 from the delivery. The Canadian officials

eventually decided not to prosecute Hensel and on June 3 ex-

pelled him from the country. Hensel was flown to Boston,

where Agent Drinan met him at the airport. Hensel called an

attorney, and Agent Drinan then arrested Hensel. Hensel ap-

peared before a magistrate and was charged with conspiracy

to import marijuana.

On Land

The investigation into the activities on the Maine coast had

begun about a month before the PATRICIA arrived. In late

38a

April 1980 agents of the DEA and the Maine state police

learned that Lot No. 3 of the Turkey Cove subdivision in Ten-

ant’s Harbor, Maine, had been bought in the name of defend-

ant Duke’s father for $170,000 in cash. The lot contained just

under three acres of relatively secluded land on the Maine

coast. On it stood three wood-frame buildings, a wooden ga-

rage, and a deepwater dock that gave the residents access to

the Atlantic Ocean. A short driveway connected the buildings

to a subdivision dirt road, which in turn led to Glenmere

Road, a public highway.

The agents also learned that in late April defendant Dill had

bought a 32-foot sport-fishing boat, SUNSHINE, in defendant

Hubbard’s name, and had paid for it with four checks total-

ling $30,000. Dill had installed in the boat $8,000 worth of

electronic equipment. Although Dill and an accomplice told

the sellers of the boat that they planned to take it to Massachu-

setts, agents later saw it at the Turkey Cove lot. Dill, the

agents also discovered, had been convicted in 1974 in Venez-

uela (and sentenced to four years in prison) for possessing 2/2

kilograms of cocaine.

On the basis of this information the DEA and the Maine

police set up a surveillance program to monitor activity at the

Turkey Cove property. Agent Drinan of the DEA and Sgt.

Bailey of the Maine police coordinated the operation. They

established posts on adjacent properties as well as across the

St. George River, and two or three times a week they conduct-

ed aerial surveillance. During the day they used a telescope, a

spotting scope, and binoculars to monitor the property, and at

night they used a nonmagnifying nightscope. The agents

could see people and vehicles on Lot No. 3, but they were un-

able to observe activities inside any of the buildings.

During May the agents watched the SUNSHINE sail out to

sea many times. The boat generally left in the afternoon and

returned late at night, often without navigational lights. The

39a

agents also saw several vehicles on the property, including

eight out-of-state, large-capacity, cargo vans. Near the end of

May they observed people strengthening the dock, and they

noticed that some of this work was being done at night by

flashlight.

At about 11:30 p.m. on June 2 a state policeman at the

observation post across the river saw the SUNSHINE return to

Turkey Cove accompanied by a sixty- to seventy-foot boat.

Although the agents later learned that the SUNSHINE had run

aground and was merely being towed home, they initially sus-

pected that this larger boat might be the narcotics boat for

which they had been waiting. Accordingly, Agent Cunniff of

the DEA and Cpl. Sinclair of the Maine police went to scout

the Turkey Cove property. At about 12:30 a.m. they made

their way down the subdivision access road and walked to the

beach through the woods on the land adjacent to Lot No. 3.

They then followed the beach toward Lot No. 3 until they

reached a spot where debris blocked their way. Cpl. Sinclair

waded through waist-high water around the debris in order to

approach the dock. Agent Cunniff waited some minutes and

then joined Cpl. Sinclair. Although several people boarded

the larger boat, no one unloaded it, and at about 3:00 a.m. the

larger boat left.

Having discovered that the boat was not delivering drugs,

Agent Cunniff and Cpl. Sinclair decided to leave Turkey

Cove. Rather than return through the deep water, however,

they chose to take what they said they thought was the most

direct route back to Glenmere Road — a route through Lot

No. 3. As they walked along the Lot No. 3 driveway, they

passed a tan jeep and recorded its license number.

Through a check of the license number, the agents discov-

ered later that night that the jeep was owned by defendant

Wells. Agent Drinan then obtained Wells’ telephone number

and found that the third phone number Hensel had given to

40a

the O'HARA had been Wells’ number — with two digits trans-

posed. At this point, the connection between the PATRICIA

and the Turkey Cove property became clear. Moreover, at

about 4:30 the next afternoon the agents monitoring Turkey

Cove learned that Hensel had been deported from Canada and

arrested at Boston's Logan airport. More critically, however,

they learned that Hensel had telephoned an attorney in Boston

and told him to call a woman who “would know who to call

and know what to do.” Worried that Hensel’s acquaintance

would have relayed the news of the PATRICIA to those at

Turkey Cove, the agents decided to survey the property more

closely and, if appropriate, to make arrests.

At about 7:15 p.m., Agent Cunniff saw the tan jeep turn off

the access road at Turkey Cove onto Glenmere Road. He fol-

lowed the jeep and signalled it to stop. Defendant Case

climbed out of the jeep and asked if something was wrong.

Agent Cunniff identified himself as a narcotics agent and,

when he saw defendant Hubbard crouched in his seat in the

jeep, opened door and asked Hubbard to step out. As Agent

Cunniff did so he found a CB radio with a 12-volt battery and

an antenna. Two state policemen had arrived by this time,

and the agents put the defendants under arrest.

Agent Cunniff and Cpl. Bailey feared, however, that Hub-

bard might have used the CB radio in the jeep io alert the men

at Turkey Cove. To prevent those present from escaping or

destroying evidence, the police decided to raid Lot No. 3.

They arrested defendant Standley by the boathouse and found

defendant Duke sitting at a desk in the main house. Duke was

writing on sheets of paper, later entered into evidence as Gov-

ernment Exhibit 111, and a yellow pad, Government Exhibit

110, lay nearby. The agents found $2,000 in cash on Duke’s

desk and $44,000 in an open brief case. Agent Cunniff arrest-

ed Duke; defendants Dill and Wells apparently were arrested

later.

4la

The seven appellants, together with two other defendants,

were indicted by a grand jury on June 12, 1980, and charged

with conspiracy to possess with intent to distribute and to im-

port into the United States approximately 18.7 tons of mari-

juana, in violation of 21 U.S.C. §§ 846 & 963. Eight of the

defendants were tried together before a jury with Chief Judge

Gignoux, of the U.S. District Court for the District of Maine,

presiding. On May 15, 1981, the jury found the seven appel-

lants guilty as charged and acquitted an eighth defendant

William Storey. We previously considered a government ap-

peal from a suppression order concerning the ninth defendant,

John Downing, in United States v. Downing, 665 F.2d 404

(1st Cir. 1981). The lower court’s decision on several of the

evidentiary issues involved in the appeal at bar can be found at

United States v. Hensel, 509 F.Supp. 1364 (D.Me. 1981) and

United States v. Hensel, 509 F.Supp. 1376 (D.Me. 1981).

Hensel’s Suppression Claim

[1] We first consider defendant Hensel’s suppression claim.

He argues that the federal government obtained evidence from

the PATRICIA in violation of his Fourth Amendment rights

and that the “exclusionary rule” therefore required the district

court to suppress all evidence obtained through that seizure.

See Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58

L.Ed. 652 (1914). We recognize that the “exclusionary rule”

applies to searches by American agents on the high seas. See

United States v. Green, 671 F.2d 46, 53 (Ist Cir.), cert. de-

nied, ___ U.S. ___., 102 S.Ct. 2962, 73 L.Ed.2d 1352 (1982);

United States v. Hilton, 619 F.2d 127, 131 (1st Cir.), cert.

denied, 449 U.S. 887, 101 S.Ct. 243, 66 L.Ed.2d 113 (1980);

United States v. Miller, 589 F.2d 1117, 1125-26 (1st Cir. 1978),

42a

cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 77]

(1979); see also Note, High on the Seas: Drug Smuggling, the

Fourth Amendment, and Warrantless Searches at Sea, 93

Harv.L.Rev. 725, 726 & n.9 (1980) [hereinafter cited as Harv.

Note]. We are also willing to assume the search violated

Canadian law. Even so, however, we believe that the “exclu-

sionary rule” does not authorize suppression here.

We shall analyze Hensel’s argument by examining three sep-

arate questions. First, is the “exclusionary rule” inapplicable

because of the fact that the Canadians, not the Americans,

searched the ship? Second, if the exclusionary rule is applic.

able despite the actions of the Canadians, did the search

violate Hensel’s constitutionally protected right of privacy?

Third, if not, is suppression nonetheless required because the

search was unauthorized by statute or Coast Guard regula-

tions?

[2] 1. We first consider whether the “exclusionary rule”

does not apply to this search because it was conducted by Can-

adians. As the government points out, the “exclusionary rule”

does not require the suppression of evidence seized by foreign

police agents, for the actions of an American court are unlikely

to influence the conduct of foreign police. See United States v.

Rose, 570 F.2d 1358, 1361-62 (9th Cir. 1978); United States v.

Morrow, 537 F.2d 120, 139 (5th Cir. 1976), cert. denied sub

nom. Martin v. United States, 430 U.S. 956, 97 S.Ct. 1602, 51

L.Ed.2d 806 (1977). This principle does not dispose of the

case, however, for there are two well-established exceptions to

this rule: (1) where foreign police conduct “shock[s] the judi-

cial conscience,” id. at 139 and (2) where American agents

“participated in the foreign search, or. . . [the foreign officers

acted] as agents for their American counterparts. . . .” Id.

The district court held that the second exception applies here.

The issue is one of applying a legal label to a complex set of

facts, some of which suggest significant American involvement

43a

while others suggest the contrary. On the one hand, as the

district court noted, the Americans began the search, the

Americans asked the Canadians to join in the effort, an Ameri-

can DEA agent urged the Canadians to seize the ship if it en-

tered Canadian waters, the RELIANCE (an American ship)

showed firepower and provided back-up assistance during the

Canadians’ boarding, the RELIANCE provided interpreters

after the boarding, and an American officer participated in a

second search of the PATRICIA. These factors suggest an

American-Canadian “joint venture.”

On the other hand, the Canadians controlled the search of

the PATRICIA, they were searching for evidence of violations

of Canadian law, they intended to prosecute Hensel for Cana-

dian crimes, the initial boarding party consisted only of Cana-

dians, the Canadians retained control of all the evidence for

some time after its seizure, and American agents may have

told the Canadians to make their boarding decision independ-

ently. As the district court noted, the question is a “close”

one. We see no obvious error, and we shall assume that U.S.

participation was sufficient to validate Hensel’s foreign search

argument. We need not decide this factually based issue

definitively, however, for a determination against the govern-

ment goes not change the ultimate result.

[3] 2. Next, we must consider whether the search violated

any privacy right of Hensel that the Fourth Amendment pro-

tects. We believe not. Of course, the search was warrantless

— a fact that might ordinarily make it “unreasonable” if it had

violated a citizen’s reasonable expectations of privacy. See,

e.g., Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507,

514, 19 L.Ed.2d 576 (1967); United States v. Miller, 589 F.2d

at 1124; Harv. Note, supra, at 727-28. But there are excep-

tions to the warrant requirement. When this case was tried in

1981, this circuit recognized an exception for searches on the

high seas based on “probable cause.” See United States v.

44a

Hilton, 619 F.2d at 131. Later, in 1982, we held that

“reasonable suspicion” was sufficient to allow a high seas

Coast Guard search. See United States v. Green, 671 F.2d at

53. The district court, following Hilton’s stricter standard,

held that the Coast Guard had probable cause to believe that

those aboard the PATRICIA were conspiring to smuggle con-

traband into the United States and that they carried contra-

band aboard the ship. The court wrote:

{T]he record in the present case more than adequately

supports the conclusion that the Coast Guard had prob-

able cause to believe that those aboard the PATRICIA

were engaged in a conspiracy to smuggle contraband into

the United States and that there was contraband aboard

the vessel.

For several days the crew of the O'HARA boat had

seen the PATRICIA lying idly with no apparent purpose

in the Gulf of Maine just outside United States waters,

with one white man and several black men on board. An

EPIC check disclosed that two of the land line telephone

numbers which the white man requested the O'HARA

captain to call were listed to suspected drug smugglers

and suggested a possible connection between the PATRI-

CIA and a suspected drug offloading site in Maine. An

EPIC check further revealed that a vessel named PATRI-

CIA was suspected of drug smuggling. The PATRICIA

had no fishing gear or nets on deck, yet sat low in the

water. The only identification was the name PATRICIA

on the bridgewing. The vessel did not fly the flag of any

country until approached by the LOUISBOURG and the

RELIANCE, at which time it raised an Honduran flag.

The PATRICIA carried sophisticated electronic and

radar equipment. When the first Coast Guard plane ar-

rived, the vessel got underway and fled, aithough the

ea See

45a

white man had reported to the O'HARA boat that she

was disabled and in need of assistance. During the ensu-

ing pursuit, the PATRICIA continuously refused to iden-

tify herself, to stop, or to deviate from her northeasterly

course, despite repeated attempts by the Coast Guard to

communicate with the vessel by radio, message block,

smoke floats, flag hoists and loud hailer. During the en-

tire night the PATRICIA was under observation, the

vessel was operating without navigational lights, steering

an erratic course toward the open sea. Only after the

RCMP aboard the LOUISBOURG opened gunfire did

the PATRICIA finally come to astop. These facts add up

to ample probable cause for the Coast Guard to believe

that the PATRICIA was engaged in a conspiracy to smug-

gle contraband into the United States.

United States v. Hensel, 509 F.Supp. 1364, 1374 (D.Me.

1981). The district court’s finding of probable cause is fully

supported by the evidence.

3. Finally, we consider Hensel’s claim that the evidence

must be excluded because, whether or not there was “probable

cause,” the search exceeded the Coast Guard’s statutory au-

thority (and violated its regulations). He claims that the only

statute that could have authorized the search is 14 U.S.C.

§ 89(a), which states:

The Coast Guard may make . . . searches, seizures and

arrests upon the high seas . . . for the prevention, detec-

tion and suppression of violations of laws of the United

States. For such purposes [Coast Guard] . . . officers

may. . . goon board of any vessel subject to the jurisdic-

tion, or to the operation of any law, of the United States

. . and search the vessel .

46a

Hensel believes that this statute does not authorize searches

that violate international law and that the search of a foreign

vessel without the flag state’s permission is such a violation of

international law. Therefore, Hensel argues that the search at

bar was not authorized by statute, that it is therefore an

“unreasonable search” within the terms of the Fourth Amend-

ment, and that consequently its fruits should be suppressed.

This claim is best analyzed in terms of three separate ques-

tions: (a) Does the relevant statute authorize searches that

violate international law? (b) If not, did this search violate in-

ternational law? (c) If so, does the “exclusionary rule” require

suppression of the evidence?

[4, 5] (a) We agree that § 89(a) does not authorize searches

that violate international law. The rule is well established, at

least since the time of Chief Justice John Marshall, that “an act

of congress ought never to be construed to violate the law of

nations, if any other possible construction remains ... .”

Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2

L.Ed. 208 (1804); see, e.g., Weinberger v. Rossi, 456 U.S. 25,

102 S.Ct. 1510, 71 L.Ed.2d 715 (1982); McCulloch v. Socie-

dad Nacional de Marineros de Honduras, 372 U.S. 10, 21, 83

S.Ct. 671, 677, 8 L.Ed.2d 547 (1963); Lauritzen v. Larsen,

345 U.S. 571, 578, 73 S.Ct. 921, 926, 97 L.Ed. 1254 (1953);

Note, “Smoke on the Water”: Coast Guard Authority to Seize

Foreign Vessels Beyond the Contiguous Zone, 13 N.Y.U.J.

Int'l L. & Pol. 249, 284-85, 295 (1980) [hereinafter cited as

N.Y.U. Note]. Moreover, the legislative history of § 89(a)

does not suggest that Congress intended to violate this princi-

ple. Section 89(a) was enacted in response to a Supreme

Court opinion holding that the Coast Guard could seize

American ships on the high seas to enforce revenue laws, but

implying that it could not do so to enforce other laws. See

Maul v. United States, 274 U.S. 501, 47 S.Ct. 735, 71 L.Ed.

1171 (1927); H.R.Rep. No. 2452, 74th Cong., 2d Sess. 2-3

47a

(1936); S.Rep. No. 2211, 74th Cong., 2d Sess. 2 (1936). Jus-

tices Brandeis and Holmes, concurring in Maul, disagreed

with the majority opinion’s implication, for they believed the

Coast Guard should be able to seize American ships on the

high seas to enforce any American law. They assumed, how-

ever, that Congress would conform with general principles of

international law — principles which did not “confer the

general authority to seize foreign vessels upon the high seas.”

Maul v. United States, 274 U.S. at 523 & n.26, 47 S.Ct. at 741

& n.26 (Brandeis & Holmes, J.J., concurring). Congress took

note of the opinion of Justices Brandeis and Holmes, and

sought to enact the Brandeis/Holmes concurrence. See H.R.

Rep. No. 2452, 74th Cong., 2d Sess. 1-3 (1936); S.Rep. No.

2211, 74th Cong., 2d Sess. 1-2 (1936). Congress wished to

authorize the search of vessels on the high seas to the extent

such searches conformed to international law, but there is no

indication that it wished to go further.

[6] (b) We next consider whether the search violated inter-

national law — a difficult question. Despite the implication

of Fifth Circuit dicta to the contrary, see United States v.

Williams, 617 F.2d 1063, 1076 (5th Cir. 1980) (en banc)

(§ 89(a) allows high seas searches of foreign vessels without

flag state permission, provided reasonable suspicion exists);

Harv. Note, supra, at 727 n.11, international law does not

allow one nation to search on the high seas vessels belonging to

another except in very special circumstances. As a fundamen-

tal rule, the proposition “that a merchant ship flying the flag

of a recognized State is immune from all interference on the

high seas by the ships of any other than her own State” is wide-

ly accepted. C. Colombos, The International Law of the Sea

311 (6th Ed. 1967); see The Sagatind, 4 F.2d 928, 931 (S.D.

N.Y. 1925) (A. Hand, J.); H. Smith, The Law and Custom of

the Sea 64-65 (3d ed. 1959); Harv. Note, supra, at 727 n.11. As

stated in the Convention on the High Seas:

48a

Ships shall sail under the flag of one State only and, save

in exceptional cases expressly provided for in internation-

al treaties or in these articles, shall be subject to its ex-

clusive jurisdiction on the high seas.

Convention on the High Seas art. 6(1), opened for signature

April 29, 1958, 13 U.S.T. 2312, T.1.A.S. No. 5200, 450

U.N.T.S. 11 (entered into force Sept. 30, 1962). This state-

ment embodies the principle of “freedom of the seas,” the

principle for which we fought the War of 1812.

The Convention on the High Seas apparently allows only

narrow exceptions to this rule of freedom of navigation, for the

Convention itself states that the exceptions will be “provided

for in international treaties or in these articles.” Commenta-

tors agree: “even suspicious conduct will not justify active in-

terference [with a foreign merchant vessel on the high seas in

peacetime] except in those cases, such as slave trading, where

it is authorized by treaty.” H. Smith, supra, at 64-65; accord,

e.g., C. Colombos, supra, at 310-15; N.Y.U. Note, supra, at

276 & n.107; Note, Free Navigation: Examination of Recent

Actions of the United States Coast Guard, 13 Vand. J.

Transnat’l L. 141, 144-45 (1980) [hereinafter cited as Vand.

Note].

Thus, the Convention states that we should look to a treaty

— in this case the Convention on the High Seas itself — to

determine whether a search violates international law. The

Convention, as interpreted in light of recognized principles of

international law, provides several exceptions. It allows the

ship of one state to search another’s ship on the high seas when

those on the searching ship suspect the foreign ship of piracy,

suspect the ship of engaging in the slave trade, suspect that the

ship despite the foreign flag is a domestic ship, are engaged in

hot pursuit, or have obtained the permission of the flag state.

See Convention on the High Seas, supra, arts. 14-23; H. Smith,

49a

supra, at 65-70; Vand. Note, supra, at 144-47. The Conven-

tion may also allow searches in cases where those on the

searching ship believe that the foreign ship threatens the

security of their own nation. See Vand. Note, supra, at 146

n.19; cf. H. Smith, supra, at 70-71. Arguably, three of these

exceptions apply here.

First, the Coast Guard may have had reason to believe that

the PATRICIA was either a domestic ship or a stateless ship

over which any nation may assert jurisdiction. See Smith,

supra, at 64-65; Vand. Note, supra, at 156. The PATRICIA,

after all, sailed for a considerable time with no flag despite

numerous attempts to communicate with it, and it hauled up

its Honduran flag only at the eleventh hour.

Second, the Coast Guard arguably searched the ship with

Honduras’ consent. Given the need for speedy action, the

hostility shown by all nations including Honduras to the inter-

national drug trade, see Restatement (Revised) of Foreign

Relations § 522(2)(a) & comment c (Tent. Draft No. 3, 1982)

(“general condemnation” of drug traffic); Restatement (Sec-

ond) of Foreign Relations § 34 note 2 (1965) (“universal con-

demnation” of drug traffic), and the fact that Honduras ap-

parently did not protest the seizure, Honduras may arguably

be said to have ratified the search. Cf. United States v. Dom-

inguez, 604 F.2d 304, 308 (4th Cir. 1979) (where Bahamas

government's confirmation of its permission to seize ship re-

ferred to wrong registration number but where Bahamas gov-

ernment did not protest seizure of ship, defendant cannot

contest validity of permission), cert. denied sub nom. Sarmi-

ento v. United States, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.

2d 644 (1980).

[7] Although Coast Guard regulations specifically require

its units to obtain the permission of the Coast Guard Comman-

dant before searching foreign vessels on the high seas, see

Commandant Instruction No. 16244.1 (1978), and although

50a

the Commandant generally grants permission only after the

foreign state has consented to the search, a violation of this

regulation does not automatically constitute a violation of in-

ternational law.

Third, some authorities suggest that coastal nations have a

right to search hovering vessels up to a “reasonable” distance

from shore where serious crime is at issue, even if that search

extends beyond the state’s territorial waters or contiguous

zone. See Brown, Protective Jurisdiction, 34 Am. J. Int'l L.

112, 114 (1940) (“Questions concerning th» extent of the zone

of protective jurisdiction . . . can only be answered by the rule

of reason in each individual case.”); Comment to Draft of

Convention on the Law of Territorial Waters, art. 20, 23 Am.

J. Int'l L.Spec.Supp. 334, 335 (1929) (zone where search is al-

lowed “is determined not by mileage but by the necessity of

the littoral state and by the connection between the interests of

its territory and the acts performed on the high seas”); see also

Church v. Hubbart, 6 U.S. (2 Cranch) 187, 234-35, 2 L.Ed.

249 (1804); The Panama, 6 F.2d 326, 327 (S.D.Tex. 1925);

The Rosalie M., 4 F.2d 815, 816 (S.D.Tex. 1925), aff'd on

other grounds, 12 F.2d 970 (5th Cir. 1926); The Grace and

Ruby, 283 F. 475, 478 (D. Mass. 1922); Dickenson, Jurisdic-

tion at the Maritime Frontier, 40 Harv.L.Rev. 1, 21-22 (1926).

Such a flexible interpretation of a nation’s “protective jurisdic-

tion,” see Brown, supra, conceivably fits within the exception

to the free navigation principle related to “national security”

— a provision arguably implicit in the High Seas Convention.

Cf. H. Smith, supra, at 70-71; Vand. Note, supra, at 145-46 &

n.19. Although we recognize that a provision for Coast Guard

searches up to sixty-two miles from shore proved highly con-

troversial during prohibition, see Ficken, The 1935 Anti-

Smuggling Act Applied to Hovering Narcotics Smugglers

Beyond the Contiguous Zone: An Assessment Under Interna-

tional Law, 29 U. Miami L.Rev. 700, 709 — 11 & nn. 35-36

5la

(1975), because the antipathy to international drug traffic is

more widespread than was the antipathy to the liquor trade,

see id. at 720-21, and because the use of hovering “mother

ships” has become so common, the reasonableness of searches

beyond the contiguous zone may now be more widely accept-

ed. See Restatement (Revised) of Foreign Relations § 522(2)(a)

& comment c (Tent. Draft No. 3, 1982) (search but not seizure

of narcotics smuggling ship permitted).

The application of the first two of these possible exceptions

to this case, however, would involve factually based deter-

minations not made by the district court, and to apply the

third would require a difficult exploration of the murky waters

of international law. Rather than remand the case or conduct

that exploration, we shall assume for the sake of argument that

the exceptions do not apply, and that the search therefore ex-

ceeded the bounds of § 89(a). We shall also assume that the

Coast Guard failed to comply with its regulation requiring

Honduras’ advance permission. For, as discussed below, even

under these assumptions we believe the evidence was properly

admitted.

[8] (c) We turn then to the final question: assuming that

the search violated international law and therefore was not

authorized by § 89(a), and assuming that it also violated the

Coast Guard’s “advance permission” regulation, does the “ex-

clusionary rule” require suppression of its fruits? We think

not. The Supreme Court has held that lack of statutory

authority and the contravention of a regulation do not auto-

matically invoke the exclusionary rule. See United States v.

Caceres, 440 U.S. 741, 755, 99 S.Ct. 1465, 1473, 59 L.Ed.2d

733 (197¢° (“we decline to adopt any rigid rule requiring

federal courts to exclude any evidence obtained as a result of a

violation of these rules”); United States v. Giordano, 416 U.S.

505, 524-29, 94 S.Ct. 1820, 1831-33, 40 L.Ed.2d 341 (1974);

see also 1 W. LaFave, Search and Seizure § 1.3(b) (1978). The

52a

exclusionary rule was not fashioned to vindicate a broad,

general right to be free of agency action not “authorized” by

iaw, but rather to protect certain specific, constitutionally

protected rights of individuals. Were this not so, courts might

have to suppress, for example, information that an agency

such as the FCC (or Department of Labor) gathers in a Com-

munity Antenna Television regulatory proceeding (or a Fair

Labor Standards Act proceeding) that later turns out to have

been beyond the agency’s statutory authority. Cf. United

States v. Southwestern Cable Co., 392 U.S. 157, 178, 88 S.Ct.

1994, 2005, 20 L.Ed.2d 1001 (1968) (FCC’s authority over

CATV “is restricted to that reasonably ancillary to the effec-

tive performance for the regulation of television broadcast-

ing”); Addison v. Holly Hill Fruit Products, Inc., 322 U.S.

607, 64 S.Ct. 1215, 88 L.Ed. 1488 (1944) (construing scope of

administrative authority under FLSA). Yet, the fact that an

agency’s employees may exceed the scope of a statute’s or a

regulation’s authority does not automatically make their ac-

tions “unreasonable” either in Fourth Amendment terms or as

a matter of ordinary understanding of reasonableness. Thus,

it is not surprising that the Supreme Court in Caceres denied

any such principle of automatic exclusion.

On the other hand, courts have found strong reason to apply

the exclusionary rule if an agency gathered information “in

direct violation of the constitutional rights of the defendant.

..” Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct.

341, 346, 58 L.Ed. 652 (1914). But, in this case the search

violated none of Hensel’s constitutionally protected interests.

For reasons previously stated, see p. 25 supra, the search did

not invade Hensel’s Fourth Amendment privacy interests, for

the search was supported by “probable cause.” Hensel is

wrong in suggesting United States v. Ramsey, 431 U.S. 606, 97

S.Ct. 1972, 52 L.Ed.2d 617 (1977), holds to the contrary, for

Ramsey supports the notion that a court must analyze the stat-

53a

ute or regulation involved in terms of the interests protected by

that statute or regulation before deciding whether to invoke

the exclusionary rule. In this case, the statute and regulation

arguably violated (insofar as they incorporate principles of in-

ternational law) were designed not to protect the privacy

rights of ship captains, but rather to protect the rights of

foreign sovereigns. In such a situation, we find the Fifth Cir-

cuit’s conclusion in United States v. Cadena, 585 F.2d 1252,

1261 (5th Cir. 1978), directly on point: “[T }here is no basis for

concluding that violation of these international principles

must or should be remedied by application of the exclusionary

rule or by dismissal of the indictment unless Fourth Amend-

ment interests are violated.” Accordingly, we reject the argu-

ment that the Coast Guard's violation of the statute and regu-

lation in this case requires us to apply the exclusionary rule.

A related way to reach the same conclusion is to say that

Hensel lacks “standing.” That is, Hensel is not entitled to in-

voke the exclusionary rule on his own behalf, for any violation

of international law invaded not his rights but rather the rights

of Honduras. The rule of international law in the case at bar

is a rule designed to secure peace among nations, not to protect

the privacy of individuals. As one commentator wrote, the

principle of freedom of the seas “does not protect the smug-

gler, but it forbids the claim, generally, to jurisdiction on the

high seas. . . .”. W. Masterson, Jurisdiction in Marginal Seas

with Special Reference to Smuggling 383-84 (1929); see

McDougal & Burke, Crisis in the Law of the Sea: Community

Perspective versus National Egoism, 67 Yale L.J. 539, 539

(1958) (“The historic function of the international law of the

sea has long been recognized as that of achieving an appro-

priate balance between the special exclusive demands of coast-

al states, and other special claimants and the general inclusive

demands of all other states in the world arena.”). Even if in-

ternational law gives Hensel as captain a right to sue for dam-

54a

ages suffered during an illegal search, see The Marianna

Flora, 24 U.S. (11 Wheat.) 1, 42, 6 L.Ed. 405 (1826). The

Convention on the High Seas, supra art. 22(3); Restatement

(Revised) of Foreign Relations § 522(4) (Tent. Draft No. 3

1982) (damages awardable if suspicions of narcotics traffic

prove unfounded), this compensation right derives from the

sovereign’s right to obtain redress for damages suffered, for

“rights under international common law must belong to

sovereign nations, not to individuals . . . .” United States v.

Williams, 617 F.2d at 1090. In brief, international law pro-

tects Honduras, not Hensel. And Honduras, as far as this rec-

ord reveals, does not care.

The Supreme Court has made clear that a defendant cannot

invoke even the privacy interests of a third party in order to

complain of an unlawful search, United States v. Payner, 447

U.S. 727, 731, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). Thus,

Hensel cannot invoke the interests of Honduras, especially

since Honduras’ interests are not privacy interests, are waiv-

able, and have not been asserted by Honduras. See also Rakas

v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978);

Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22

L.Ed.2d 176 (1969).

In sum, whether or not Canadian law authorized the seiz-

ure, whether or not there was sufficient evidence of a “joint

venture” to invoke constitutional protections, and whether or

not the seizure was unlawful under international law, the evi-

dence against Hensel was properly admitted.

Hensel’s Hearsay Argument

(9] We turn next to a minor matter, and Hensel’s only addi-

tional argument for reversal. Hensel claims that the trial

55a

court erred in admitting into evidence a glass found at the

Turkey Cove property. The glass had on it the word “Dink,”

Hensel’s nickname, and tended to tie Hensel to those at Turkey

Cove. As admitted to show this relation, Hensel states, the

glass was hearsay.

We are tempted to say any error was “harmless” as to Hen-

sel, see, e.g., United States v. Honneus, 508 F.2d 566, 572-73

(1st Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44

L.Ed.2d 101 (1975), but we need not do so, for the glass was

properly admitted. The fact that the word “Dink” appears on

the glass does not itself make the glass hearsay evidence, for no

assertion intended by the act of putting the word on the glass

was relevant to the chain of inferences the government wished

the jury to draw. The jury was not asked to infer anything

about the person who put the name on the glass, who for all

we know or care works in a factory that turns out “name”

glasses by the score. Rather, the jury was asked to infer that

Dink Hensel was likely to have possessed a glass with the name

“Dink” on it and that he, or someone he knew, placed it in the

house at Turkey Cove. The first of these inferences is merely

circumstantial. There is no obvious way it depends upon the

statement or state of mind of any out-of-court declarant.

The second of these inferences could involve hearsay only if

one accepts a highly complex line of argument: Hensel might

claim that he would like to cross-examine the “unknown” per-

son who brought the glass to Turkey Cove on the ground that

this out-of-court person's state of mind is relevant to the validi-

ty of the second inference. In order to invoke the hearsay rule,

Hensel would have to argue that this individual's “nonverbal

conduct” in placing the glass in the house was “intended by

him as an assertion,” Fed.R.Evid. 801(a) (2), that “Hensel was

here.” Even were one to make the heroic assumption that this

was Hensel’s argument, it fails. It fails because Hensel did not

preliminarily show the district judge that placing the glass in

56a

the house was intended as an “assertion” (e.g., that it was de-

signed to “frame” Hensel). Yet, the Federal Rules of Evidence

“place the burden [of proving such an assertive intent] upon

the party claiming tha: the intention existed.” Fed.R.Evid.

801 Advisory Committee note (a). Hence, the glass was not

shown to be hearsay and it was properly admitted.

The Other Defendants’ “Search and

Seizure” Issue

Defendants Case, Duke, Hubbard, and Standley challenge

the admission of all evidence the government obtained as a

result of Agent Cunniff’s observation of the license number of

the jeep on Lot No. 3 on June 3. This license number was a

key piece of evidence. It showed that the jeep belonged to

Wells whose telephone number Hensel had given to the

O’HARA prior to the Coast Guard chase. Thus, the license

number helped link the ship to the defendants on shore, and

much subsequently obtained evidence is arguably a “fruit” of

its observation.

For purposes of this appeal we accept the district court's

findings, for they are adequately supported in the record.

Agents Cunniff and Sinclair walked along to the public beach

and waded through waist-high water to observe the dock on

Lot No. 3 where they thought a ship carrying drugs was about

to dock. The agents apparently believed that the only way

back to civilization without braving the deep water lay

through Lot No. 3. Accordingly, they crossed the lot to return

to the public access road, and along their way saw the jeep in

the driveway and noted the license number. Under these cir-

cumstances, tne agents may have had a legal right to pass

through Lot No. 3. See, e.g., Ploof v. Putnam, 81 Vt. 471, 71

57a

A. 188 (1908). Even if we assume they were trespassers, how-

ever, we believe they did not violate any of the defendants’

Fourth Amendment rights.

[10] To show that their constitutional rights were violated,

defendants must show that they had “a legitimate expectation

of privacy” in the license number of the jeep parked in the

driveway. See, e.g., Rawlings v. Kentucky, 448 U.S. 98, 104,

100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); United States v.

Salvucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2552-53, 65

L.Ed.2d 619 (1980); Rakas wv. Illinois, 439 U.S. at 149, 99

S.Ct. at 433. The district court found no such legitimate ex-

pectation, given that a license plate is an item normally re-

vealed to the public and that this license plate was observed in

a place where the owner couid not reasonably have expected it

to remain hidden. United States v. Hensel, 509 F.Supp. at

1386.

The fact that the plate itself is designed for public exposure,

while relevant, see United States v. Humphries, 636 F.2d

1172, 1179 n.12 (9th Cir. 1980), cert. denied, 451 U.S. 988,

101 S.Ct. 2324, 68 L.Ed.2d 846 (1981), is not determinative.

It would not, for example, justify the search of a bedroom if

the plate were hidden in the mattress. Thus, we have ex-

amined the record, including the aerial photographs, with

some care to determine the nature of the place where the jeep

was parked.

The testimonial descriptions and the photographs suggest

that the driveway to Lot No. 3 is not quite so nestled in the

“middle of nowhere” as defendants would have us elieve.

Rather, they indicate that houses and farms are scattered

every few hundred yards along the highway, and that other

residents have built cabins along the coast. The public high-

way runs with’n one-quarter to one-half mile of the buildings

on Lot No. % ..nd three-quarters of the distance from the build-

ing to the highway is spanned by a semi-public road — a sub-

oOo

58a

division road that was open to people other than the owners or

users of Lot No. 3. The record contains testirmony that mem-

bers of the public generally considered the beach open to their

use for clamming and “gunning,” and that they used the

wooded area for hauling wood and fishing. On the other

hand, there were “no trespassing” signs and there was a chain

across the drive (although the government produced testimony

that the chain and all but one sign first appeared after June 3).

In any event, taken together, the evidence could lead the dis-

trict court reasonably to conclude that the defendants should

have expected that a license plate on a jeep parked on their

driveway — apparently only one or two hundred yards from a

subdivision road, and squarely between that road and a beach

used at least sometimes by clammers, hunters and others —

would not remain hidden from the occasional passerby.

We have also reviewed the case law on the subject. This

case seems a less compelling one for defendants than many

other cases in which similar searches were upheld. See United

States v. Lace, 669 F.2d 46 (2d Cir. 1982) (surveillance of

70-acre Vermont farm by agents who entered the farm in mili-

tary camouflage uniforms and maintained round-the-clock

surveillance with such equipment as nightscopes, 130-power

Questarlens, and infra-reg goggles); United States v. Ramapu-

ram, 632 F.2d 1149 (4th Cir. 1980) (search of trunk of junk car

abandoned on farm owned by defendant's father, whe.e

agents were able to reach car only by driving 200 yards down

private road and then walking by foot across open field), cert.

denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981);

see also United States v. Edmonds, 611 F.2d 1386 (5th Cir.

1980) (search of private dock area upheld, where public gener-

ally considered it open to public); United States v. Humphries,

636 F.2d 1172, 1178-79 (9th Cir. 1980) (evidence obtained as a

result of an agent’s entrance onto private driveway to observe

license number of parked car), cert. denied, 451 U.S. 988, 101

S.Ct. 2324, 68 L.Ed.2d 846 (1981).

59a

We have been unable to find any case in which courts have

accepted claims similar to that of defendants. And, the cases

they have cited are distingvishable. See United States v.

Oliver, 657 F.2d 85 (6th Cir. 1981) (search unconstitutional

where agents passed many “No Trespassing” signs and locked

gate along private road, and were told to leave premises); Fix-

el v. Wainwright, 492 F.2d 480 (5th Cir. 1974) (search uncon-

stitutional where agents searched shaving kit hidden in back-

yard); United States v. Davis, 423 F.2d 974 (5th Cir.) (search

unconstitutional where agents made warrantless search of de-

fendant’s yard and seized pistol), cert. denied, 400 U.S. 836,

91 S.Ct. 72, 27 L.Ed.2d 68 (1970); Wattenburg v. United

States, 388 F.2d 853 (9th Cir. 1968) (search unconstitutional

where agents searched pile of trees next to lodge and seized

nine trees as evidence); Sanders v. State, 264 Ark. 433, 572

S.W.2d 397 (1978) (observation of garden located behind

home and separated by fence from home impermissible); Nor-

man v. State, 134 Ga.App. 767, 216 S.E.2d 644 (1975) (search

unconstitutional where agents searched truck located behind

barn behind house); State v. Kender, 588 P.2d 447, 60 Hawaii

301 (1978) (observation unconstitutional where officer

climbed fence to observe plants hidden behind dense, tall

vegetation in defendant’s backyard).

Given the facts and case law, we believe the decision of the

district court on this issue was correct.

The Sufficiency of the Evidence

[11] Each defendant, with the exception of Hensel and

Duke, argues that the evidence against him was insufficient

for conviction. On appeal, our task is to “consider the evi-

dence as a whole, taken in the light most favorable to the Gov-

60a

ernment, together with all legitimate inferences to be drawn

therefrom, to determine whether a rational trier of fact could

have found guilt beyond a reasonable doubt.” United States

v. Patterson, 644 F.2d 890, 893 (Ist Cir. 1981); see United

States ». Doran, 483 F.2d 369, 372 (Ist Cir. 1973), cert.

denied, 416 U.S. 906, 94 S.Ct. 1612, 40 L.Ed.2d 111 (1974);

Parker v. United States, 378 F.2d 641, 644 (Ist Cir.), cert. de-

nied, 589 U.S. 842, 88 S.Ct. 81, 19 L.Ed.2d 107 (1967). To

convict the defendants of conspiring to import marijuana into

the United States, the government bore the burden of proving

that each defendant knowingly and intentionally joined that

conspiracy. See Direct Sales Co. v. United States, 319 U.S.

703, 709, 63 S.Ct. 1265, 1268, 87 L.Ed. 1674 (1943); United

States v. Izzi, 613 F.2d 1205, 1210 (1st Cir.), cert. denied, 446

U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 793 (1980); United

States v. Mora, 598 F.2d 682, 683 (Ist Cir. 1979) (“the gist of

conspiracy is an ‘agreement to disobey or to disregard the

law’”). But, “[pJarticipation in a criminal conspiracy need

not be proved by direct evidence; a common purpose and plan

may be inferred from a ‘development or collection of circum-

stances.’” United States v. Stubbert, 655 F.2d 453, 456 (1st

Cir. 1981), quoting Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). We apply these

standards first to the strongest defense claims — those of

Standley, Hubbard and Case. We then turn to defendants

Wells and Dill.

Standley, Hubbard and Case

1. Standley, Hubbard and Case are three carpenters who

moved to Maine and worked on the Turkey Cove property.

We suspect the sufficiency of the evidence against them turns

6la

on the proper use of two key pieces of evidence: a “prep-

aration” and “clean up” list (Government Exhibit 110), and a

payroll list (Government Exhibit 111), both of which govern-

ment agents found in the bedroom where defendant Duke was

working at the time of his arrest. Government Exhibit 110

consists of a yellow pad which includes: 1) a page entitled

“Clean Up Crew 20 Minutes” that contains suggestions of

things to be done to move the “bales” from the boat to the

boathouse and van, and lists fourteen names including “Bob-

by” and “Flip” (see Appendix I); 2) nineteen pages headed

“Master List,” with numbers one through 950 in columns and

a heading “Total per col. — wt” at the bottom of each col-

umn; 3) a page headed “Wet Ones List;” 4) a page listing

“Total Gross Weight” and “Total Net” by truck; and 5) a page

headed “Preparation Group 9:00 Dark” which lists six names

including “Charlie,” and “Bobby” (see Appendix II). Since in-

dependent evidence indicated that defendant Case was known

as “Flip,” and since the jury could reasonably infer that

Charles Standley was known as “Charlie” and Robert Hub-

bard as “Bobby,” these lists linked these men to the conspir-

acy. Government Exhibit 111 includes five separate pages

marked A through E. One page, entitled “Pay Schedule,” lists

24 names, including “Flip.” Government Exhibit 111 does

not refer to “Charlie” or “Bobby.”

When the government initially offered the preparation,

clean up, and payroll lists into evidence, the defendants ob-

jected to them as hearsay. The government invoked the “co-

conspirator” exception, see Fed.R.Evid. 801(d)(2)(E), but

also stated that it offered the lists not for the truth of the mat-

ter they asserted, but rather to allow the jury to infer that

those named on the list were associated with the conspiracy

from the fact that these lists were found in the bedroom when

government agents entered the house. When arrested, Duke

was writing on the payroll list (Government Exhibit III) and

62a

the other list (Government Exhibit 110) was nearby. Cash

($2,000) was lying on Duke’s desk, and a briefcase with

$44,000 was on the bed nearby. The government believed the

jury could circumstantially infer an association from these

facts. The trial court, faced with the defendants’ hearsay ob-

jection to the lists, told the jury when the exhibits were en-

tered: “These papers are not admitted to show the truth of

the statements made in them. You, as the jury, may consider

them as providing any evidence that the contents of these

papers are accurate or true.”

Later during the trial, the court made the preliminary find-

ings of a likely conspiracy required by United States v. Petroz-

ziello, 548 F.2d 20 (1st Cir. 1977) and United States v. Ciam-

paglia, 628 F.2d 632, 638 (Ist Cir.), cert. denied, 449 U.S.

956, 101 S.Ct. 365, 66 L.Ed.2d 221 (1980), and it concluded

that the statements were admissible hearsay under the co-con-

spirator exception to the hearsay rule. See Fed.R.Evid.

801(d)(2)(E). When the court decided to remove the limiting

instruction, however, the defendants claimed that they were

prejudiced by this ruling on the grounds that they had relied

upon the government’s statement that it would not use the lists

to prove the truth of the assertions they contained. According-

ly, the court rescinded this ruling. On the following day, the

court heard argument on the purposes for which the govern-

ment could use the lists. The government argued:

We are not asserting that it in fact takes 20 minutes for

the clean up crew to operate. We are not asserting that

in fact “Flip” has the key. However, we are asserting

that the fact that Mr. Duke was writing on one of the ex-

hibits and the other was in close proximity with him at

the time is an act of a co-conspirator from which the jury

may draw certain inferences about the purpose of the act

and the scheme included in it.

i i

63a

The court granted the government’s motion to allow the use of

the lists for the following purposes:

[t]he exhibits do not constitute statements admitted for

the truth of any assertion contained in them but that if

the Jury finds that the Defendant Duke was writing on

these exhibits at the time Special Agent Cunniff encoun-

tered Duke and that Defendant Duke was in custody and

control of the exhibits at that time, the Jury may consider

these two exhibits as circumstantial evidence from which

you may draw inferences about the relationship among

the various parties and items for plan, purpose, prepara-

tion and knowledge.

The judge himself gave no instructions to the jury concerning

the use of the lists. However, during closing argument the

government told the jury:

You will recall that the Judge instructed you that these

documents have not been admitted for the truth of the

statements that are contained thereon . . . . You know,

however, that at the time Mr. Cunniff went to the up-

stairs bedroom and encountered Mr. Duke that Mr. Duke

was writing on Government Exhibit 111, the white

paper, and also that he had $44,000 with him in a brief

case and in cash. From these facts, Ladies and Gentle-

men, you may consider Government Exhibits 110 and

111 as circumstantial evidence from which you may draw

certain inferences about the relationship among the par-

ties listed in those lists and inferences about the plan, pur-

pose, preparation and knowledge of the people involved

in this conspiracy.

Defense counsel moved for a mistrial on the basis of this argu-

ment, but the court denied the motion.

64a

We believe the court’s ruling was proper. The jury was not

permitted to infer Standley, Hubbard, and Case’s participa-

tion from the out-of-court written assertion by the maker of

the list that the three were participants in the conspiracy. The

jury was permitted to infer their participation from the fact

that one actively involved in the conspiracy, namely Duke,

possessed a participant’s list on which their names were found.

We recognize that inferring participation from the juxtaposi-

tion of the fact that Duke possessed lists containing their

names with the fact that Duke himself was actively involved in

the conspiracy may involve a use of the lists for a purpose

closely related to hearsay. See generally 4 J. Weinstein &

M. Berger, Weinstein’s Evidence 801-53 to 801-57 (1979).

After all, the validity of making the inference ‘that a defend-

ant participated’ from the fact ‘that Duke possessed a list with

defendant’s name’ depends in part upon Duke’s state of mind

in possessing the list. The inference is based, first, on the

assumption that Duke believed the three were participants,

and second, on the assumption that Duke’s beliefs regarding

the membership of the conspiracy were, in the context of the

totality of the evidence, likely to be correct.

[12] Nevertheless, even if the jury’s inference involved a

hearsay-type of problem, the evidence was outside the scope of

hearsay as defined by the Federal Rules of Evidence. See Fed.

R.Evid. 801-806. The court allowed the jury to infer plan,

purpose, preparation, knowledge, and association from

Duke’s possession of the list. Possession is conduct, and con-

duct is hearsay under the Federal Rules only if “intended . . .

as an assertion.” Fed.R.Evid. 801(a)(2). We do not see how

Duke’s possession of the list could have been “intended . . . as

an assertion” of the defendants’ role unless Duke had been

staging an elaborate charade to implicate the defendants. If

defendants believed that to be the case, however, they bore

the burden of proving that the conduct was indeed intended

65a

as an assertion, see Fed.R.Evid. 801 Advisory Committee note

(a); 4 J. Weinstein & M. Berger, supra, at 801-62 to 801-63,

and they offered no such proof. Similar evidence has been ad-

mitted as circumstantial evidence in other cases. See e.g.,

United States v. Marino, 658 F.2d 1120, 1124 (6th Cir. 1981);

United States v. Mazyak, 650 F.2d 788, 792 (5th Cir. 1981,

cert. denied, 455 U.S. 922, 102 S.Ct. 1281, 71 L.Ed.2d 464

(1982); United States v. Day, 591 F.2d 861, 883 (D.C. Cir.

1978); United States v. Ruiz, 477 F.2d 918, 919 (2d Cir.) (per

curiam), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38

L.Ed.2d 240 (1973); United States v. Canieso, 470 F.2d 1224,

1232-33 (2d Cir. 1972). And, in any event, this use would

both fit within the “co-conspirator” hearsay exception,

Fed.R.Evid. 801 (d)(2)(E) (as the district court properly found

to apply), and would have come as no surprise to defendants.

Thus, we believe the jury could properly have used the lists

as evidence that Duke believed Standley, Hubbard and Case

were in the conspiracy and, hence, given Duke's central role,

as evidence that they were, in fact, conspirators.

[13] 2. In addition to their first names being on the lists

found in Duke’s possession, there was other evidence from

which the jury could infer that Standley, Hubbard, and Case

knowingly and intentionally participated in the conspiracy.

The jury could have believed that Hubbard, Case, and Stand-

ley were Georgia residents. It could conclude that the three

were carpenters who had come to work on the Turkey Cove

property in Maine during the time that the conspiracy was in

operation. It could have inferred that they built shutters that

fit on the inside of the boathouse windows to hide the mari-

juana that would be stored there. And it could have inferred

that they saw the conveyor belt, the elaborate radio and com-

munications equipment, the industrial vacuum cleaner, the

vans, and the navigational charts — all of which were present

on the Turkey Cove property.

66a

We believe that a jury could reasonably find that Standley

was a member of the conspiracy from the evidence regarding

Standley’s occupation, the likelihood that the carpentry work

was in fact to be used to further a drug-smuggling conspiracy,

the evidence that Standley was not from Maine, the fact that

items like sophisticated radios, conveyor belts and industrial

vacuum cleaners were likely to be seen by one working at

Turkey Cove, and Duke’s possession of a “preparation” and

“clean up” list mentioning Standley. This case is unlike the

cases reversing convictions where the evidence consisted of lit-

tle more than mere presence at the scene of the crime. See,

e.g., United States v. Mora, 598 F.2d 682 (Ist Cir. 1979) (con-

viction reversed where defendant had traveled with woman

carrying cocaine, but where there was no evidence that de-

fendant knew woman carried drugs or that he had known her

before trip); United States v. Mehtala, 578 F.2d 6 (Ist Cir.

1978) (conviction reversed where only evidence against defend-

ant was proof of her presence on ship containing drugs and

evidence of a close relationship with captain during voyage,

and where there was no evidence th

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