# Petition — Hensel v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0883%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 461 U.S. 958 ## Text 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 12 14 14 16 18 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 10n 10n 10n 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. 2 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. 3 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 4 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 (c) That, though flying a foreign flag or refusing to show its 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 (c) above, the warship may proceed to verify the ship’s right to 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. 5 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. 6 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. 7 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. 8 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. 9 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. 10 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. 11 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. 12 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. 13 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. 14 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. 15 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. 16 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. 17 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 18 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 la UNITED STATES of America V. 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 2a 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. 3a 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- 4a 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. va 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). I 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. 6a 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 7a 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 8a 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. 9a 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. II 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. Il 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, V. 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. I 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. A 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. B 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). I 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 “ [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0883%3A1. Public record. Not legal advice.