Petition — Case v. United States
Supreme Court brief1983
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Supreme Court of the United Sta
OcToser TERM, 1982.
GERALD WAYNE CASE,
LARRY RONALD DUKE,
ROBERT CURTIS HUBBARD,
CHARLES THAD STANDLEY,
PETITIONERS,
Vv.
UNITED STATES OF AMERICA,
RESPONDENT.
Petition for a Writ of Certiorari to the
United States Court of Appeals for the First Circuit.
Foy R. DEVINE,
Bruce H. Morris,
4 Piedmont Center, Suite 111,
3565 Piedmont Road, N.E.,
Atlanta, Georgia 30305
(404) 233-4141
MELVIN GUTTERMAN,
Emory University School of Law,
Gambrell Hall,
Atlanta, Georgia 30322
Tower Printing Company ¢ 2 Peachtree Street. NW © Suite [414 © Atinnta, Georg 3038) © (404) 659-4080
Question Presented for Review.
Whether a residence driveway located in a remote and se-
cluded rural area whose occupants have manifested a desire to
maintain privacy by posting “No Trespassing” signs and by
barring the entryway with chains is entitled to Fourth Amend-
ment protection from governmental intrusion, even though the
driveway is accessible to the occasional passerby.
Table of Contents
Page
Opinions Below......--cscesercecesecsececcescceceress 2
Da ak acces tenes ee eee teen eee anees 2
Constitutional Provisions, Statutes, Treaties
and Regulations Involved .....-++++eeerrresereererees 2
Statement of the Case .....--eceeceererereeernececerees 3
Reasons for Granting the Writ......-.eeeeeeereeerrerees 8
I. The Court of Appeals misinterpreted this
Court’s decisions in Katz v. United States,
389 U.S. 347 (1967) and Marshall v. Barlow's,
Inc., 436 U.S. 307 (1978), when it held that
because the property might not remain free
from the intrusion of an occasional passerby,
the petitioners could not reasonably expect
privacy in a driveway that was undoubtedly
within the curtilage.......-eeceesreeeerereeerseerces 9
Il. The decision of the Court of Appeals below
is in conflict with the decisions of the Third,
Fourth, Fifth, Seventh, and Tenth Circuits,
and this Court should grant certiorari to re-
solve the conflict......ccccccccceeccsrercecesones 13
a oa enn bance cede eehesnresnenececteseees 21
APPeENdiX ..... ccc ceeeeecccceersenreeeree follows page 21
eee
Table of Authorities Cited.
CASES. Page(s)
Care v. United States, 231 F.2d 22 (10th Cir. 1956)....... 15
Fixel v. Wainwright, 492 F.2d 480 (Sth Cir. 1974) ........ 16
Florida v. Brady, 81-1636, cert. granted May 24, 1982 ....14
Fullbright v. United States, 392 F.2d 432 (10th Cir.
1968). cert. denied, 393 U.S. 830 (1968) .. 2. cccecccece 15
Hester v. United States, 265 U.S. 57 (1924) .........eee. 14
Katz v. United States, 389 U.S. 347
OO i iin seecevieneuess S1LBwN
Lo Jo Sales, Inc. v. New York, 442
i iver dnn Cacepecncades 8, 10
Maine v. Thornton, 82-1273, 51 U.S.L.W. 3706,
cert. granied April 4, 1983.......ecceeeeeeceececerens i
Marshall v. Barlow's, Inc., 436 U.S. 307 (1978)...... 8-10, 19
Rawlings v. Kentucky, 448 U.S. 98 (1980) ........---00- 1]
United States v. Allen, 633 F.2d 1282 (9th Cir. 1980),
wae, ea Oe SO, TAe ISG L) bie cee censcscwnsecus 12
United States v. Baldwin, 691 F.2d 718 (Sth Cir. 1982)....17
United States ex rel Boyance v. Myers, 398 F.2d 896
Oe Oe FN oi vache se weesinwaceekscasckess 15, 16
United States v. Davis, 423 F.2d 974 (Sth Cir. 1970),
ere ela GOS US, OIG CIGD ok n brccnccscnccnccvns 16
United States v. Hensel, 509 F.Supp. 1376
I REE EEE TONG eA are 3.7.9
United States v. Hensel, 699 F.2d 18
OU i uk ic vcctdenscecswbnwas ce 4,9, 19
United States v. Holmes, 521 F.2d 859
OO TI ora ok ck cee sci incor whecéecanceacn 16
iV
Table of Authorities Cited.
CASES. Page(s)
United States v. Humphries, 636 F.2d 1172 (9th Cir.
1960), cert. dented, 431 U.S. 968 (1961) ............6.. 18
United States v. Jackson, 585 F.2d 653 (4th Cir. 1978) ....15
United States v. Magana, 512 F.2d 1169 (9th Cir.
Oras. Care, re, Gas US. BAe CURTIS) occ cnc ccc cu nees 18
United States v. Oliver, 686 F.2d 356 (6th Cir. 1982),
ore. wel, SE US.1. w. Jose CI9GS) .. wo cee: 14, 17
United States ex rel Saiken v. Bensinger,
546 F.2d 1292 (7th Cir. 1976), cert. denied,
ee OE ia esac due w sw cvcnn sos cas 15
United States v. Singer, 687 F.2d 1135 (8th Cir. 1982) ....19
United States v. Van Dyke, 643 F.2d 992
eee ewe we onc cnesns 15
United States v. Ventling, 678 F.2d 63 (8th Cir. 1982)..... 18
United States v. Whitmore, 345 F.2d 28 (6th Cir. 1965)
per curiam; cert. denied sub nom Anderson v. United
UM DUR Oe Te EE oki wo ce cee ce ecccnannccans 17
Walter v. United States, 447 U.S. 649 (1980).......... S. i2
Wattenburg v. United States, 388 F.2d 853 (9th Cir.
WORE) vcnccs a a aan hae G bod bw ees ene coe 20
Wilson v. Health & Hospital Corp. of Marion County,
ee Fe COE CTR Ge FID ohn ewncceneccccvecss 19, 20
STATUTES.
United States Constitution Fourth Amendment ........... 2
ee ee Ue iii dec cccnceneveceseensece 3
ee cadence beceeneseosoeseus 2
NO.
In the
Supreme Court of the United States.
OcToOBER TERM, 1982.
GERALD WAYNE CASE,
LARRY RONALD DUKE,
ROBERT CURTIS HUBBARD,
CHARLES THAD STANDLEY,
PETITIONERS,
V.
UNITED STATES OF AMERICA,
RESPONDENT.
Petition for 2 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 petitioners, Gerald Wayne Case, Larry Ronald Duke,
Robert Curtis Hubbard, and Charles Thad Standley, appellants
in the court below, respectfully pray 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 Dis-
trict Court for the District of Maine entered on July 16, 1981.
Opinions Below.'
The opinion of the United States District Court for the Dis-
trict of Maine, denying petitioners’ motion to suppress, is re-
ported at 509 F.Supp. 1376 (D. Me. 1981). 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
petitioners is reported at 699 F.2d 18 (Ist Cir. 1983).
Jurisdiction.
The judgment of the United States Court of Appeals for the
First Circuit was entered on January 25, 1983. A timely petition
for rehearing was filed, and was denied on February 28, 1983.
On April 22, 1983, Justice Brennan extended the time within
which to file a petition for a writ of certiorari to and including
June 7, 1983. The jurisdiction of the Supreme Court is invoked
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 seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and partic-
ularly describing the place to be searched, and the persons or
things to be seized.
| Petitioners were four of seven co-defendants who appealed to the Court of
Appeals. The others were David Keith Hensel, John Jacob Wells and Creig
Lee Dill.
Statement of the Case.
A federal grand jury indicted petitioners, Gerald Wayne Case,
Larry Ronald Duke, Robert Curtis Hubbard, and Charles Thad
Standley, together with four co-defendants in a one-count in-
dictment charging conspiracy to possess with intent to distribute
and to import into the United States marijuana, in violation of
21 U.S.C. §§ 846 and 963 [1:1].? Various pre-trial motions were
filed by all petitioners, including a motion to suppress evidence
pursuant to Federal Rules of Criminal Procedure 12(b)(3) and
41 [1:19, 27]. Chief Judge Gignoux, for the United States Dis-
trict Court, District of Maine, conducted an evidentiary hearing
and denied the appellants’ motions. United States v. Hensel, 509
F.Supp. 1376 (D. Maine 1981). Chief Judge Gignoux held that
the petitioners’ Fourth Amendment rights had not been violated
by Agents Cunniff’s and Sinclair’s trespass onto the curtilage of
the Turkey Cove property to search out a license plate number
on a jeep parked in the driveway. The district judge concluded
that since the jeep was parked on the driveway open to the view
of tradesmen and others who visited the property, it was not pro-
tected by the Fourth Amendment. Therefore, the evidence de-
rived from the investigation was admitted at the petitioners’ trial.
Following a jury trial, the petitioners were convicted of the
conspiracy charge. Motions for judgment of acquittal and fora
new trial offered by the petitioners were denied [10:1569]. The
petitioners were sentenced [2:57], and each received a sentence
of incarceration. Following sentencing, the petitioners appealed
to the First Circuit Court of Appeals. The Court of Appeals
agreed with the lower court that the petitioners had no legitimate
expectation of privacy in the license plate number of the jeep
parked in their driveway, concluding that their driveway, appar-
ently only one or two hundred yards from a subdivision road,
? Citations to the Record on Appeal refer to the volume number and docu-
ment number for Volumes I-II; volume number and page number for re-
maining volumes of the Record. References to exhibits are by the exhibit num-
bers as identified at trial.
would not remain free from the occasional passerby. United
States v. Hensel, 699 F.2d 18 (1st Cir. 1983).
The evidence developed at the evidentiary motion to suppress
showed that the investigation that led to the petitioners’ con-
victions began in late April 1980, with surveillance of Lot #3, in
the Turkey Cove subdivision, Tenant’s Harbor, Maine. Investi-
gation by Drug Enforcement Administration (DEA) agents dis-
closed that Lot #3 consisted of 2.89 acres of wooded land ina se-
cluded area on the St. George River on the Maine coast. On it
were three wood frame buildings, a wooden garage, and a deep-
water dock with direct access to the Atlantic Ocean. Access to
the Turkey Cove subdivision is gained by a private dirt road ex-
tending from a public highway. The driveway is approximately
a quarter of a mile from the subdivision road.
DEA and Maine State Police (MSP) agents, without warrants
or judicial authority, instituted surveillance of the Turkey Cove
property. Outlooks were set up on adjacent properties, and an
observation post was established across the St. George River,
approximately three-fourths of a mile away. Aerial surveillance
was also conducted two to three times a week, and some photo-
graphs were taken, both ground and aerial. The surveilling of-
ficers at the observation post used nonmagnifying nightscopes
at night, and a spotting scope, a telescope and binoculars during
the day. With these visual aids, the agents could see persons and
vehicles on Lot #3, and any vessel moored at the dock, but they
could not observe activities inside the buildings or identify the
individuals observed.
During the month of May, the surveilling officers observed
the sailboat SUNSHINE making numerous trips out toward the
open ocean. The boat would leave late in the afternoon and re-
turn late at night, frequently without navigational lights. The
agents also observed a number of vehicles come and go from Lot
#3. A number of different persons were seen visiting and working
around the property. Toward the end of May, persons were ob-
served strengthening the dock and constructing a plywood plat-
form on it. Some of the work took place at night, by flashlight.
The Turkey Cove property was owned by James T. Duke
[39:6; D-6] and was in the possession and under the control of
his son, petitioner Larry Duke, on June 2-3, 1980, and had been
so since his arrival at the property on April 24, 1980. Petitioners
Case, Hubbard and Standley (employees) either arrived with
him in late April or came shortly thereafter. They were employed
by Duke and Sons Construction Company, a company located
in Georgia that had been in the construction business for 52
years [39:31] to do construction and electrical work on the
property.
There was an understanding among the employee petitioners
and petitioner Duke that no “outsiders” were permitted on the
property without Duke’s permission [39:10]. To this end, seven
“No Trespassing” or “Keep Out” signs were posted in specific
locations around the property, including the private driveway,
the dock, and the beach [36:12, 13, 73, 196-197, 203; D-9]. An-
other “No Trespassing” sign was placed at the entrance to the
private driveway which was blocked by a large chain [39:12].
Petitioner Duke instructed his employees to maintain the prop-
erty at all times for insurance purposes and that no one was to be
allowed on the property except those approved by him to do
subcontracting work [39:14, 164].
On the evening of June 2, 1980, only the petitioners were pre-
sent on Lot #3 of the Turkey Cove property, and no other person
had been given permission to be on the property [39:29].
At approximately 11:30 p.m. on the night of June 2, MSP
Trooper Michael Roux, on duty at the observation post across
the St. George River, saw the sailboat SUNSHINE, which had
set out toward the open sea during the afternoon, returning to
the Turkey Cove dock accompanied by a larger 60 to 70-foot
vessel. Believing that this might be the marijuana boat the of-
ficers were expecting, Roux notified MSP Cpl. David Sinclair
at the Thomaston State Police Barracks, who in turn notified
DEA Special Agent Michael Cunniff. Cunniff and Sinclair met
at the command post near Turkey Cove with other members of
the surveillance team, and it was decided that Cunniff and
Sinclair would scout the Turkey Cove property on foot.
At approximately 12:30 a.m. on June 3, Cunniff and Sinclair
made their way along the Turkey Cove access road and through
the woods on property adjacent to Lot #3 to the beach. They
then continued along the rocky beach below the high water
mark to a point where fallen timber and debris blocked their
passage. Cunniff remained behind while Sinclair waded through
the waist-deep water around the debris and continued on the
beach to a point where he could observe the dock. The time was
approximately 2:30 a.m. Sinclair observed persons leaving the
compound to board the larger boat, but saw no offloading ac-
tivity. At 2:58 a.m., he observed the large boat leave the dock.
Cunniff, after waiting 20 minutes, also waded through the
water around the debris and joined Sinclair at approximately
3:20 a.m. On learning that the larger vessel had departed,
Cunniff suspected that its arrival might have been a “dry run.”
Instead of returning by the same route they had taken to arrive
at the dock, which would have necessitated again wading
through the water around the debris (the parties stipulated high
tide occurred at 2:17 a.m. on June 3, with a rise of 9.6 feet),
Cunniff and Sinclair decided to take what they believed to be the
most direct route out to Glenmere Road, across Lot #3.
Agent Sinclair had gone around the debris in the water at the
most difficult time and when Agent Cunniff showed up, he too
had gone through the debris at the worst time (high tide) so as
not to trespass on the property [38:123]. Agent Sinclair testified
they could have turned right around and left by the route they
came without deliberately trespassing on Lot #3 [38:67], but they
were disappointed that no smuggling activity was going on
[38:123], and knew that if they went out across the Turkey Cove
property, Lot #3, they might see something that could help them
[38:69].
One of the main points in the surveillance activity was to pin-
point each of the vehicles by some registration number so they
could be traced [38:82]. There was nothing of further signifi-
cance to observe at the dock [38:68], and they knew that if they
went out by the dock, across Lot #3, they might see something
that could help them [38:69]. They did not get lost or confused in
leaving [38:77], as they knew the lay of the land [38:91], but pro-
ceeded to deliberately trespass upon Lot #3 of the Turkey Cove
property, out through a path that would take them in direct con-
tact with the tan Jeep, a Jeep they had heard about before that
evening [38:84], and one in which they had an interest in securing
the license plate number [38:88].
The agents climbed onto the private dock and walked along
the private driveway on Lot #3. While on the private driveway
they passed a tan Jeep parked in the rear of the cookhouse.
Cunniff recorded the license plate, Georgia registration,
QP 2331.
Later that night, the agents learned through a check of the
license number that the tan Jeep was registered to defendant
John J. Wells with a Cobbtown, Georgia, address. The agents
knew that on May 31, the Honduran vessel PATRICIA was
boarded off the coast of Canada and was found to be carrying
marijuana. Its captain had given a Cobbtown, Georgia, tele-
phone number which was relayed to the Coast Guard. Linking
Wells’ Cobbtown address with the as yet unidentified Cobbtown
telephone number obtained from the PATRICIA, agents ac-
quired Wells’ Cobbtown telephone number and found that the
number given by the captain of the PATRICIA matched the
number for John J. Wells, owner of the Jeep observed at Turkey
Cove. For the first time, the connection between the PATRICIA
and the Turkey Cove investigation had been made. (Emphasis
added). 509 F.Supp. at 1380-81.
The license plate was critical in establishing the lawfulness of
all of the Government’s subsequent activities. The license num-
ber was the basis of the vital link between the activities of the
vessel PATRICIA and those occurring on Lot #3 of the Turkey
Cove property. It was the crucial item of evidence relied upon by
the district court judge in finding the subsequent investigatory
stop and search of the Jeep and the arrest of petitioners Case
and Hubbard constitutional (509 F.Supp. at 1387). By supplying
the rationale for the stop and search of the Jeep it provided the
exigencies relied upon by the district court for the warrantless
entry onto Lot #3 and the arrest of petitioners Duke and
Standley and seizure of all evidence incident thereto. (509
F.Supp. at 1389). It was also decisive to the affidavit in estab-
lishing probable cause for the issuance of the warrant to search
the Turkey Cove property [G-13, Paragraph 13] and to the affi-
davit for a warrant to search all the vehicles found at the Turkey
Cove property [G-16, Paragraphs 3, 5, 6, 7, 8].
Reasons for Granting the Writ.
This case presents an important and recurring question of
Fourth Amendment jurisprudence. The conflicting decisions of
the lower courts in this area have engendered a considerable un-
certainty concerning the Fourth Amendment privacy right that
should be accorded the area immediately surrounding the se-
cluded private residence (curtilage) that may be accessible to
private citizens. The holding of the Court of Appeals for the
First Circuit that law enforcement agents may make a warrant-
less entry and trespass upon private property, in this case a resi-
dence driveway in a secluded area, in order to secure a view of
property located therein, while in agreement with the Eighth
Circuit, is in apparent conflict with the decisions of the United
States Courts of Appeal for the Third, Fourth, Fifth, Seventh,
and Tenth Circuits. Moreover, the decision in this case also con-
tradicts the decisions of this Court that have determined that the
integrity of the Fourth Amendment and its judicial protection
depends upon the propriety of the government action, Walter v.
United States, 447 U.S. 649 (1980); Lo Jo Sales, Inc. v. New
York, 442 U.S. 319 (1979); Marshall v. Barlow’s, Inc., 436 U.S.
307 (1978), and not on some remote possibility that a tradesman
or lost passerby may breach the security of an otherwise very
private, secluded and remote residence. This Court should grant
review to resolve this uncertainty and to decide the important
Fourth Amendment question presented here.
I. THE CourRT OF APPEALS MISINTERPRETED THIS CourT’s DE-
CISIONS IN KaTz ¥. UNITED STATES, 389 U.S. 347 (1967) AND
MARSHALL V. BARLOW’S, INC., 436 U.S. 307 (1978) WHEN IT
HELD THAT BECAUSE THE PROPERTY MIGHT NoT REMAIN
FREE FROM THE INTRUSION OF AN OCCASIONAL PASSERBY, THE
PETITIONERS COULD NoT REASONABLY EXPECT PRIVACY IN A
DRIVEWAY THAT WAS UNDOUBTEDLY WITHIN THE CURTILAGE.
The decisions of the courts below are based upon an erroneous
view of the Fourth Amendment. The district court concluded
that “although the section of the driveway on which the Jeep was
parked was undoubtedly within the curtilage of Lot #3,” this
“residence driveway, which is freely accessible to visitors, trades-
men and any lost traveler, is but a semi-private area in which one
cannot reasonably expect privacy.” United States v. Hensel, 509
F.Supp. at 1385 n.11.
The Court of Appeals agreed with the lower court determining
that “the evidence could lead the district court reasonably to
conclude that the defendants should have expected that a license
plate on a jeep parked on their driveway—apparently only one
or two hundred yards from a subdivision road, and squarely be-
tween that road and a beach used at least sometimes by clam-
mers, hunters and others— would not remain free from the oc-
casional passerby.” (Emphasis added.) United States v. Hensel,
699 F.2d at 32.
The Court of Appeals decision does not comport with this
Court’s view of Katz and its progeny, nor is it a realistic view of
protected Fourth Amendment privacy interests. Katz supplied
some content to the meaning of “public exposure” by holding
that what a person knowingly exposes to the public is not the
subject of Fourth Amendment protection, but what he seeks to
preserve as private, even in areas accessible to the public, may
be constitutionally protected. Marshall v. Barlow’s, Inc., 436 U.S.
307 (1978), refined Katz by demonstrating that exposure to a
limited segment of the public does not remove those areas from
Fourth Amendment protection against government observa-
tions.
In Barlow's, the government had argued that an OSHA agent
had the right to make a warrantless inspection of a business-
man’s factory, not only under the Act, but also since the employ-
er had opened the factory to the eyes of his employees. Justice
White, for the majority, rejected this argument, reasoning that
the owner of the business, by utilizing employees in his opera-
tion, had not thrown open the areas where employees alone are
permitted, to the warrantless scrutiny of government agents.
Barlow’s helped clarify an important aspect of the Katz reason-
able expectation of privacy test. Most importantly, this Court
determined that granting of access to third parties does not re-
sult in forfeiture of Fourth Amendment interest and a concomi-
tant right of access by the government. Moreover, Barlow’s indi-
cates that the relevant Fourth Amendment question is the indi-
vidual’s reasonable expectation of privacy vis-a-vis the govern-
ment. Barlow’s stands for the proposition that private property
owners may invite others onto their property without opening
the door to the government.
As noted by this Court: “The critical fact in this case is that
entry over Mr. Barlow’s objection is being sought by a govern-
ment agent.” Marshall v. Barlow’s, Inc., 436 U.S. at 314. This
Court then continued:
That an employee is free to report, and the Govern-
ment is free to use, any evidence of noncompliance
with OSHA that the employee observes furnishes no
justification for federal agents to enter a place of
business from which the public is restricted and to
conduct their own warrantless search.
436 U.S. at 315.
Additionally, this Court in Lo Jo Sales, Inc. v. New York, 442
U.S. 319, 329 (1979), unanimously reasoned that simply because
one engages in the open business of selling “adult” products to
the public, does not translate into the relinquishment of this in-
dividual’s privacy expectations against unlawful government
intrusions.
Even more disquieting is the Court of Appeals’ procrustean
10
application of Katz that even a very secluded driveway ina pri- .
vate area will not receive judicial privacy recognition because it
is not hidden from the “occasional passerby.” The court’s ruling
goes even further than the government’s argument in Barlow's,
and this Court’s recent decision in Rawlings v. Kentucky, 448
U.S. 98 (1980).
Rawlings teaches that the taking of “normal precautions” is a
good indicia of privacy expectations. A rigid application of the
Court of Appeals standard would require not merely the taking
of ordinary precautions but the taking of the most rigorous pre-
ventive measure designed to protect privacy from the most un-
‘natural penetration by the most curious citizen.
Expectations of privacy are certainly not confined to the
home. While the extent of privacy that conduct in the home may
enjoy differs significantly from exterior activity, it is clear that
the concept of privacy Katz captured does not vanish complete-
ly when human activity occurs outside the home. In analyzing
claims of privacy from surreptitious government action, the
Fourth Amendment need not require the citizen to take unrea-
sonable precautions.
An opaque covering cannot and need not be built around and
over property to preserve the privacy of activities occurring on
it. Property, isolated from public view, is indicative of societal
recognition of the owner’s desire to maintain private activities
conducted upon it. The property location may protect privacy
just as effectively as the closing of the telephone booth door in
Katz. Absolute isolation is an impossible norm as both private
access to it and public access to contiguous land must generally
be afforded.
If granted certiorari, petitioners will argue that the proper in-
quiry in this case should be focused upon Katz. A Katz expec-
tation of privacy examination requires the coyrts to take into
consideration a combination of factors, including the location of
the driveway (or premises searched), the type of area (commer-
cial or residential), the existence or nonexistence of and height of
natural or artificial structures adjacent to the driveway and
premises, and the precautions taken to assure privacy. Finally,
11
the propriety of the government conduct should be taken into
account. Applying these criteria, the petitioners’ driveway was
located such that it was reasonable for the residents of the prop-
erty to expect privacy. Hidden in a remote rural area, sur-
rounded by the ocean, a river and the woods, the driveway was
clearly not open to public scrutiny. It could not be seen from the
nearest road, which was a quarter of a mile away. The probabil-
ity that a lost traveler would wander mistakenly on these se-
cluded premises was extremely low; furthermore, the route that
such a traveler would take (via the driveway) would not be the
one taken here. The officers herein deliberately trespassed not
merely upon the driveway; under the cover of darkness they
came upon an area of the property in which they had no right to
be and traversed the premises into an even greater protected
area—the curtilage.
Moreover, the residents have manifested their desire to main-
tain privacy not only by locating in an isolated area, but also by
posting “No Trespassing” signs and by barring the entryway
with chains. These citizens have done as much as ordinary care
" requires to shield their sanctuary from strangers and the govern-
ment. A free and open society should not require that an indi-
vidual “construct an opaque bubble over his or her land in order
to have a reasonable expectation of privacy regarding these
premises and activities thereon.” See United States v. Allen,
633 F.2d 1282, 1289 (9th Cir. 1980). Neither should our citizens
be required to post armed guards, to erect an electrically charged
fence, or maintain a pack of trained watchdogs. The Fourth
Amendment should not be read as “to require” citizens to take
unreasonable measures and incur extremely burdensome ex-
penses to protect themselves from clandestine governmental
searches.
The petitioners will further argue that the risk of being ob-
served by a “lost clammer, hunter or traveler” may frustrate in
part their privacy desires, but it simply does not strip their ex-
pectations of all Fourth Amendment protections. Accord,
Walter v. United States, 447 U.S. 649 (1980).
A chance view by a “lost traveler” has no significance in con-
12
trolling government activity. Social norms give symbolic impor-
tance to conventional designated areas of privacy and there is
no basis for determining that these limits extend only as far as
the “uninvited” hunter permits it. In setting the boundaries it is
not appropriate to dictate that the citizen bears the risk of sys-
tematic government intrusion because of his inability to control
minor intrusions from a narrow segment of the public. The only
risk that must be borne is that the “uninvited guest” might ob-
serve activity and report it to the police.
The Court of Appeals would allow the conduct of an “unin-
vited lost traveler” to set the standard by which to measure gov-
ernment activity. The lower court’s talismanic solution to a
chance view pushes the people to be driven back into their home
by the risk of exposure to the occasional] passerby. This Court,
in Barlow’s, clearly rejected this risk assumption model in recog-
nizing that, although Barlow had to utilize employees, and
risked their reporting to the government, he still maintained, vis-
a-vis the government, his full panoply of privacy rights. The
Court of Appeals’ decision below represents a complete depar-
ture from the line of authority established since Karz v. United
States, supra, and this Court should grant certiorari to reverse
the lower court upon this issue.
II]. THE DECISION OF THE COURT OF APPEALS BELOW IS IN CON-
FLICT WITH THE DECISIONS OF THE THIRD, FOURTH, FIFTH,
SEVENTH, AND TENTH CIRCUITS, AND THIS CoURT SHOULD
GRANT CERTIORARI TO RESOLVE THE CONFLICT.
Proper resolution of the case at bar is timely because of the
conflicting positions taken by the various Courts of Appeal re-
garding the permissible extent that police officers may enter pri-
vate property in order to secure a view. In reverence to the sanc-
tity of the home, these courts have unanimously afforded Fourth
Amendment protections to the homeowner’s privacy expecta-
tions in his dwelling; however, the protection allotted to the im-
13
mediate areas surrounding the residence has been left open to
various methods of analysis and conflicting interpretations. Al-
though the fundamental question involves the Katz expectation
of privacy inquiry, a careful study of the incongruous ways in
which courts have applied this test reveals no clear systematic
examination. Some courts focus on the curtilage-open fields dis-
tinction; others prefer to ignore such technical classifications
and concentrate instead on the propriety of the governmental
action or on the nature of the particular premises involved (i.e.,
availability uf access to the public either on foot or by sight).?
Apparent uncertainty concerning the scope of the Katz doctrine
has resulted in a number of decisions by the Courts of Appeal
that end with conclusions phrased in terms of a Katz reasonable
expectation of privacy yet conflict with each other.
The primary difference of opinion revolves around the signif-
icance attached to the property immediately surrounding the
residence commonly referred to as the “curtilage.” Despite the
repudiation of traditional principles of property law in Kazz,
this Court has acknowledged that property rights continue to
play some role in the process of ascertaining the presence of a
privacy interest. See Justice Harlan’s concurring opinion in
Katz, 389 U.S. 347, 361 (1967). Because expectations of privacy
3 This case does not call into question the open fields issues presently before
this Court in Oliver v. United States, 82-15, 51 U.S.L.W. 3156, cert. granted
January 25, 1983; Maine v. Thornton, 82-1273, 51 U.S.L.W. 3706, cert.
granted April 4, 1983; or Florida v. Brady, 81-1636, cert. granted May 24, 1982.
When argued, Oliver will consider whether this Court's decision in Katz has
modified the holding of Hester v. United States, 265 U.S. 57 (1924), such that
a warrant should be obtained before searching a highly secluded field in which
a reasonable expectation of privacy can be shown to exist. Consolidated for
argument with Oliver is Maine v. Thornton. Thornton asks this Court to de-
termine the vitality of the Hester open fields doctrine in a case involving a war-
rantless search outside the curtilage in a heavily wooded area marked with no
trespassing and no hunting signs, an old stone wall and a barbed wire fence. In
Florida v. Brady, this Court will examine the degree of significance to be ac-
corded to the open fields doctrine in the overall scheme of the Katz expectation
of privacy analysis.
_
are inherent in the common law concept of curtilage, several
Courts of Appeal have remained particularly sensitive to gov-
ernmental entry onto private premises that traditionally fall
within the curtilage. Cases from the Third, Fourth, Fifth, Sixth,
Seventh and Tenth Circuits repeatedly utilize the /ocation of the
property searched and of the observing officer as the determi-
native factors.
The Seventh Circuit in United States ex rel Saiken v. Ben-
singer, 546 F.2d 1292, 1296 (7th Cir. 1976), cert. denied, 431
U.S. 930 (1977), held that “curtilage is to be determined from
the facts, including its proximity or annexation to the dwelling,
its inclusion within the general enclosure surrounding the dwell-
ing, and its use and enjoyment as an adjunct to the domestic
economy of the family.” Accord, Care v. United States, 321 F.2d
22, 25 (10th Cir. 1956). Determining that the structure at issue
in Bensinger was not within the curtilage, the court concluded
that it deserved no Fourth Amendment protection.
The Fourth Circuit in United States v. Van Dyke, 643 F.2d
992 (4th Cir. 1981), a case concerning the search of a honey-
suckle patch found to be situated such that it was included with-
in the curtilage of a residence, clearly stated that a warrantless
search of a home or its curtilage violates the Fourth Amend-
ment. Agreeing with and citing its earlier authority in United
States v. Jackson, 585 F.2d 653 (4th Cir. 1978), the Fourth Cir-
cuit found a search of the curtilage synonymous with an en-
croachment on a person’s reasonable expectation of privacy.
The Tenth Circuit in Fullbright v. United States, 392 F.2d
432 (10th Cir. 1968), cert. denied, 393 U.S. 830 (1968), agreed
with the Fourth Circuit and noted the importance of the curti-
lage distinction. On the one hand, the court cautioned against
using such a factor as decisive, yet in dicta it remarked, “if the
investigators had physically breached the curtilage, there would
be little doubt that any observations made therein would have
been proscribed.” 392 F.2d at 434.
The Third Circuit takes an even stronger stance on this posi-
tion in United States ex rel Boyance v. Myers, 398 F.2d 896 (3d
Cir. 1968), a case invalidating the search of a car parked in the
15
defendant's driveway. In Myers the Third Circuit declared, “we
have no doubt that the protection of the Fourth Amendment ex-
tends beyond the walls of a home to the curtilage or ground and
buildings immediately surrounding a dwelling, formerly usually
enclosed.” 398 F.2d at 899.
The Fifth Circuit, while moving verbally from a focus on the
right of the government agent to be in the position from which
he secures a view to the Katz reasonable expectation of privacy
language, has continued to uphold the importance of property
rights in considering questions of privacy surrounding a home.
In United States v. Davis, 423 F.2d 974 (Sth Cir. 1970), cert. de-
nied, 400 U.S. 836 (1970), in which a nighttime warrantless entry
into the curtilage of a residence was found unconstitutional, the
court acknowledged the favored position given to a person’s
home and the private domain around it, and stressed its desire
to protect these areas from unreasonable searches and seizures.
Denominating the officers’ physical intrusion into the curtilage
of a private home a severe invasion of privacy, the court affirmed
that “where police officers trespass in order to secure the view,
we have not hesitated to find a search.” Davis, supra at 977. Ac-
cord, Fixel v. Wainwright, 492 F.2d 480, 483 (Sth Cir. 1974). In
United States v. Holmes, 521 F.2d 859 (Sth Cir. 1975), the Fifth
Circuit found an illegal search and seizure when officers physi-
cally intruded upon private property to peer into a shed for the
sole purpose of securing evidence of a crime. Condemning not
only the officers’ trespass, but also the purpose of the entry, the
court asserted that “when a law enforcement arent trespasses
solely to unearth evidence of crime, he has no rij ht to be in the
position to have that view.” Holmes, supra at 869. Speaking in
terms of the individual's reasonable expectation of privacy, the
court also considered the character of the private property in-
volved, concluding that “a dweller in a rural area whose property
is surrounded by extremely dense growth need not anticipate
that government agents will be crawling through the underbrush
by putting up signs warning the government to keep away.”
Holmes, supra at 870. The result is an analysis which assesses
an individual’s expectation of privacy in terms of whether the
16
search occurs inside or outside the curtilage. If the search tran-
spires inside the curtilage, a warrant is required absent exigent
circumstances; if it takes place outside the curtilage, the court
will inquire into the nature of the property—the composition of
its foliage and undergrowth, and the degree to which it can be
visually penetrated from both the exterior and the interior. See
United States v. Baldwin, 691 F.2d 718 (Sth Cir. 1982) (in which
government agents remained outside the curtilage in a clearing
while making their observations and thus were positioned in an
open field wherein there was no cognizable expectation of
privacy).
The Sixth Circuit has likewise indicated a protective attitude
toward curtilage areas in United States v. Whitmore, 345 F.2d
28 (6th Cir. 1965) per curiam; cert. denied sub nom Anderson v.
United States, 382 U.S.991 (1966) and in United Srates v. Oliver,
686 F.2d 356 (6th Cir. 1982), cert. granted 51 U.S.L.W. 3552
(1983). The detailed scrutiny the court makes of the premises in
determining whether the areas in question are inside or outside
the curtilage demonstrates its recognition of the necessity of
granting security to the curtilage. More recently, the Sixth Cir-
cuit employed the same method of analysis in United States v.
Oliver, supra, in ruling that certain marijuana fields were outside
the curtilage and thus deserved no Fourth Amendment guaran-
tees.
The case at hand involves the search of a residence driveway,
and undoubtedly the driveway falls within the area designated
as curtilage. Under the analysis of the Third, Fourth, Fifth, Sev-
enth and Tenth Circuits, petitioners should have received
Fourth Amendment protection against such an invasion.
Considering the number of cases that still adhere to the curti-
lage distinction in reaching privacy questions, it is noteworthy
‘ to find that other Circuits have discarded entirely the so-called
“outmoded” property concept and instead scrutinize the nature
of the premises themselves to determine the worth of the privacy
claim. Thus, a court could choose to grant or withhold Fourth
Amendment protections to a driveway based upon the physical
characteristics of the driveway and on any precautions the owner
has taken to insure his privacy. Several Courts of Appeals’ de-
cisions have upheld searches on residence driveways which can
be seen from a nearby public street, based on the idea that pri-
vate property exposed to public view cannot have any expecta-
tions of privacy associated with it. Katz, supra. See also, United
States v. Humphries, 636 F.2d 1172 (9th Cir. 1980), cert. denied,
451 U.S. 988 (1981) (search of driveway evoked no expectations
of privacy since it was visible from the street); United States v.
Ventling, 678 F.2d (8th Cir. 1982) (search of driveway upheld
since it was not out of the public view and thus any expectations
of privacy therein were unreasonable). Even following this line
of decisions, the driveway at issue in this case merited Fourth
Amendment protection because it was located in a remote rural
area, surrounded by natural barriers—the woods, a river, and
the Atlantic Ocean. Furthermore, the driveway was close to the
residence and between one and two hundred yards from the
nearest access road. Since it was not visible from the subdivision
road, the driveway cannot be labeled as open to public scrutiny.
Although concerned about the visibility of the driveway from
the street, the Ninth Circuit in United States y. Magana, 512
F.2d 1169 (9th Cir. 1975), cert. denied, 423 U.S. 826 (1975)
(physical invasion and search of a driveway upheld due to exi-
gent circumstances), also raises another mode of analysis in
which the proper inquiry is whether the officer’s intrusion con-
stitutes an invasion into what the resident seeks to preserve as
private, even in an area which, although adjacent to his home, is
accessible to the public. Courts adopting this reasoning have
split as to whether once the property is open to various members
of the public for limited purposes it is indeed open to all mem-
bers of the public for any purpose (i.e., open to law enforcement
officers for investigatory purposes). The First and Eighth Cir-
cuits have allowed a police officer to deliberately and intention-
ally enter the driveway and like area immediately surrounding
the residence in order to seek out the possible but uncertain ex-
istence of evidence based on the remote possibility that an oc-
casional passerby may trespass briefly upon the property either
by mistake or for the limited purpose of making deliveries or
18
soliciting a request from the residents. Such remote possibility
leads these courts to conclude that no justifiable expectation of .
privacy was intruded upon since the government achieved the
view in question while located on an area of the property that
could be momentarily open to the view of tradesmen or other
occasional visitors to the property. See, e.g., United States v.
Singer, 687 F.2d 1135, 1144 n.17 (8th Cir. 1982).
The First Circuit in the instant case determined that because
the driveway was potentially accessible to the occasional passer-
by—clammers and hunters—the residents had no reasonable
expectation in their driveway. United States v. Hensel, 699 F.2d
18, 32 (1st Cir. 1983). Since they must accept the risk that a lost
traveler or tradesman may enter the property ina particular way,
through the driveway, they must additionally accept the risk that
government agents will trespass from a completely different
route and in a totally unauthorized manner. Such a view com-
pletely ignores the nature and location of the premises, as well as
the propriety of the governmental action.
Other courts, including this Court, have recognized that
merely because an area may be accessible to the public for a
limited and unaccusatorial purpose is no reason to open up the
area to all manner of searches by all types of persons. Marshall
v. Barlow’s, Inc., 436 U.S. 807 (1978). As this court in Barlow's
emphasized, granting of a right of access to third parties does
not result in a possible forfeiture of Fourth Amendment inter-
ests and a concomitant night of access to the government.
More recently, the Bar/ow’s ruling was cited and elaborated
upon in Wilson v. Health & Hospital Corp. of Marion County,
620 F.2d 1201 (7th Cir. 1980). In Wilson, the same court which
had earlier decided Bensinger, supra, based on the property con-
cept of curtilage, directed its expectation of privacy analysis to
the nature of the premises. Wilson concerned the unauthorized
inspection of an apartment complex by a health official. The
health officer allowed himself to be conducted around the prem-
ises by a resident. Although occupied apartments were searched
with the consent of the occupants, the basement area and at least
one unoccupied apartment were inspected without any valid
19
permission. Neither the door to the basement nor the one to the
vacant apartment were secured in any fashion; in fact, both were
partially open. Nevertheless, the Wilson court held that an ex-
pectation of privacy could be reasonable despite the open and
unsecured nature of the premises:
the fact that portions of the interiors may have been
visible to tenants and their guests and invitees does
not mean that appellant necessarily ‘threw open’ the
interiors of his premises to general public scrutiny.
620 F.2d at 1212.
In light of the fact that a warrant requirement would not im-
pose an unreasonable burden upon the ability of a government
agent to perform his duties, Wilson concludes that even a min-
imal showing by an individual of his objectively reasonable ex-
pectation of privacy should outweigh the interests raised in a
warrantless search, even in areas open and visible to tenants.
Confronted with a factual situation placing in question the
privacy interests of an individual in a stockpile of Christmas
trees located in his back yard, the Ninth Circuit, in Wattenburg
v. United States, 388 F.2d 853 (9th Cir. 1968), refused to allow
a general scrutiny by law enforcement officers merely because
the area was open to the public for limited purposes. Desirous of
comparing trees cut by the defendant with stump cuts taken
from government lands, the officers meticulously examined the
stockpile of trees by night without a valid warrant. The trees
were stacked about five feet from a public parking area, close to
the motel where the defendant was a roomer. The court chose
to de-emphasize the open and exposed nature of the trees and
declared that the proper inquiry is whether the search occurred
in an area which the resident sought to preserve as private re-
gardless of the area’s accessibility to the public. Certainly the
geographical location and topography in the case at bar present
a much more compelling case for Fourth Amendment protec-
tion than do the facts in Wattenburg. The fact that a driveway
may be accessible to private citizens affords no reason to strip it
of Fourth Amendment protection vis-a-vis the government.
20
The decision of the court below is in conflict with decisions
of the Third, Fourth, Fifth, Seventh, and Tenth Circuits, and
this Court should grant certiorari to resolve the conflict.
Conclusion.
For the foregoing reasons, it is respectfully requested that this
Honorable Court issue a Writ of Certiorari to review the Judg-
ment of the United States Court of Appeals for the First Circuit.
Respectfully submitted,
Foy R. DEVINE,
Bruce H. Morris,
4 Piedmont Center, Suite 111,
3565 Piedmont Road, N.E.,
Atlanta, Georgia 30305
(404) 233-4141
MELVIN GUTTERMAN,
Emory University School of Law,
Gambrell Hall,
Atlanta, Georgia 30322
21
Appendix.
Table of Contents.
Opinion, United States District Court, D. Maine,.
TR a GR FeTTo NTC MR la
Opinion, United States Court of Appeals, First Circuit,
NES To, FS ok ons eee cee eo cnc ck us eueewsss 27a
la
UNITED STATES of America
Vv.
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 om 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 vesse! and then whether search and seizure,
although authorize<!. 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.
5a
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. Presently 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-
*It 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.
Janus 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.
>It 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 seen 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
LOUISBOURG 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 2l-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 LOUISBOURCG 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 2] 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
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 or
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.l, 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 Although 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 America: that the Canadians
became involved in the pursuit. DEA .gent 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, coordinated 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. Section 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 « 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 (Sth Cir.
1978), rev'd on other grounds, 612 F.2d 887; United States v. Bates, 526 F.2d
966, 967 (Sth 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 contends 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.A.S. No. 5200.
'? 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, 91S.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 intenaed 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 (1st 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.
Ill
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,
v.
David Keith HENSEL, Defendant,
Appellant.
UNITED STATES of America, Appellee,
v.
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.
1l. Conspiracy a4
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 Procedure 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 me 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 affirm 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 shi’, che 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 Lt. 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 LOUISBOURG 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 aet, 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 21%
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 tc 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).
II
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 Amendn:ent 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 (1st 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 771
(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 cor-
traband into the United States and that they carried contra-
band aboard the ship. The court wrote:
[ T]Jhe 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 Cuard plane ar-
rived, the vessel got underway and fled, although the
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 Cuard’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. . . go on board of any vessel subject to the jurisdic-
tion, or to the operation of any law, of the United States
46a
Hensel believes that this statute does not authorize searches
that violate international law and that the search of a foreign
vessel without the flag state’s permission is such a violation of
international law. Therefore, Hensel argues that the search at
bar was not authorized by statute, that it is therefore an
“unreasonable search” within the terms of the Fourth Amend-
ment, and that consequently its fruits should be suppressed.
This claim is best analyzed in terms of three separate ques-
tions: (a) Does the relevant statute authorize searches that
violate international law? (b) If not, did this search violate in-
ternational law? (c) If so, does the “exclusionary rule” require
suppression of the evidence?
[4, 5] (a) We agree that § 89(a) does not authorize searches
that violate international law. The rule is well established, at
least since the time of Chief Justice John Marshall, that “an act
of congress ought never to be construed to violate the law of
nations, if any other possible construction remains ... .”
Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2
L.Ed. 208 (1804); see, e.g., Weinberger v. Rossi, 456 U.S. 25,
102 S.Ct. 1510, 71 L.Ed.2d 715 (1982); McCulloch v. Socie-
dad Nacional de Marineros de Honduras, 372 U.S. 10, 21, 83
S.Ct. 671, 677, 8 L.Ed.2d 547 (1963); Lauritzen v. Larsen,
345 U.S. 571, 578, 73 S.Ct. 921, 926, 97 L.Ed. 1254 (1953);
Note, “Smoke on the Water”: Coast Guard Authority to Seize
Foreign Vessels Beyond the Contiguous Zone, 13 N.Y.U.J.
Int'l L. & Pol. 249, 284-85, 295 (1980) [hereinafter cited as
N.Y.U. Note]. Moreover, the legislative history of § 89(a)
does not suggest that Congress intended to violate this princi-
ple. Section 89(a) was enacted in response to a Supreme
Court opinion holding that the Coast Guard could seize
American ships on the high seas to enforce revenue laws, but
implying that it could not do so to enforce other laws. See
Maul v. United States, 274 U.S. 501, 47 S.Ct. 735, 71 L.Ed.
1171 (1927); H.R.Rep. No. 2452, 74th Cong., 2d Sess. 2-3
47a
(1936); S.Rep. No. 2211, 74th Cong., 2d Sess. 2 (1936). Jus-
tices Brandeis and Holmes, concurring in Maul, disagreed
with the majority opinion’s implication, for they believed the
Coast Guard should be able to seize American ships on the
high seas to enforce any American law. They assumed, how-
ever, that Congress would conform with general principles of
international law — principles which did not “confer the
general authority to seize foreign vessels upon the high seas.”
Maul v. United States, 274 U.S. at 523 & n.26, 47 S.Ct. at 741
& n.26 (Brandeis & Holmes, J.J., concurring). Congress took
note of the opinion of Justices Brandeis and Holmes, and
sought to enact the Brandeis/Holmes concurrence. See H.R.
Rep. No. 2452, 74th Cong., 2d Sess. 1-3 (1936); S.Rep. No.
2211, 74th Cong., 2d Sess. 1-2 (1936). Congress wished to
authorize the search of vessels on the high seas to the extent
such searches conformed to international law, but there is no
indication that it wished to go further.
[6] (b) We next consider whether the search violated inter-
national law — a difficult question. Despite the implication
of Fifth Circuit dicta to the contrary, see United States v.
Williams, 617 F.2d 1063, 1076 (Sth Cir. 1980) (en banc)
(§ 89(a) allows high seas searches of foreign vessels without
flag state permission, provided reasonable suspicion exists);
Harv. Note, supra, at 727 n.11, international law does not
allow one nation to search on the high seas vessels belonging to
another except in very special circumstances. As a fundamen-
tal rule, the proposition “that a merchant ship flying the flag
of a recognized State is immune from all interference on the
high seas by the ships of any other than her own State” is wide-
ly accepted. C. Colombos, The International Law of the Sea
311 (6th Ed. 1967); see The Sagatind, 4 F.2d 928, 931 (S.D.
N.Y. 1925) (A. Hand, J.); H. Smith, The Law and Custom of
the Sea 64-65 (3d ed. 1959); Harv. Note, supra, at 727 n.11. As
stated in the Convention on the High Seas:
48a
Ships shall sai] under the flag of one State only and, save
in exceptional cases expressly provided for in internation-
al treaties or in these articles, shall be subject to its ex-
clusive jurisdiction on the high seas.
Convention on the High Seas art. 6(1), opened for signature
April 29, 1958, 13 U.S.T. 2312, T.1.A.S. No. 5200, 450
U.N.T.S. 11 (entered into force Sept. 30, 1962). This state-
ment embodies the principle of “freedom of the seas,” the
principle for which we fought the War of 1812.
The Convention on the High Seas apparently allows only
narrow exceptions to this rule of freedom of navigation, for the
Convention itself states that the exceptions will be “provided
for in international treaties or in these articles.” Commenta-
tors agree: “even suspicious conduct will not justify active in-
terference [with a foreign merchant vessel on the high seas in
peacetime] except in those cases, such as slave trading, where
it is authorized by treaty.” H. Smith, supra, at 64-65; accord,
e.g., C. Colombos, supra, at 310-15; N.Y.U. Note, supra, at
276 & n.107; Note, Free Navigation: Examination of Recent
Actions of the United States Coast Guard, 13 Vand. J.
Transnat’] L. 141, 144-45 (1980) [hereinafter cited as Vand.
Note].
Thus, the Convention states that we should look to a treaty
— in this case the Convention on the High Seas itself — to
determine whether a search violates international law. The
Convention, as interpreted in light of recognized principles of
international law, provides several exceptions. It allows the
ship of one state to search another's ship on the high seas when
those on the searching ship suspect the foreign ship of piracy,
suspect the ship of engaging in the slave trade, suspect that the
ship despite the foreign flag is a domestic ship, are engaged in
hot pursuit, or have obtained the permission of the flag state.
See Convention on the High Seas, supra, arts. 14-23; H. Smith,
49a
supra, at 65-70; Vand. Note, supra, at 144-47. The Conven-
tion may also allow searches in cases where those on the
searching ship believe that the foreign ship threatens the
security of their own nation. See Vand. Note, supra, at 146
n.19; cf. H. Smith, supra, at 70-71. Arguably, three of these
exceptions apply here.
First, the Coast Guard may have had reason to believe that
the PATRICIA was either a domestic ship or a stateless ship
over which any nation may assert jurisdiction. See Smith,
supra, at 64-65; Vand. Note, supra, at 156. The PATRICIA,
after all, sailed for a considerable time with no flag despite
numerous attempts to communicate with it, and it hauled up
its Honduran flag only at the eleventh hour.
Second, the Coast Guard arguably searched the ship with
Honduras’ consent. Given the need for speedy action, the
hostility shown by all nations including Honduras to the inter-
national drug trade, see Restatement (Revised) of Foreign
Relations § 522(2)(a) & comment c (Tent. Draft No. 3, 1982)
(“general condemnation” of drug traffic); Restatement (Sec-
ond) of Foreign Relations § 34 note 2 (1965) (“universal con-
demnation” of drug traffic), and the fact that Honduras ap-
parently did not protest the seizure, Honduras may arguably
be said to have ratified the search. Cf. United States v. Dom-
inguez, 604 F.2d 304, 308 (4th Cir. 1979) (where Bahamas
government's confirmation of its permission to seize ship re-
ferred to wrong registration number but where Bahamas gov-
ernment did not protest seizure of ship, defendant cannot
contest validity of permission), cert. denied sub nom. Sarmi-
ento v. United States, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.
2d 644 (1980).
[7] Although Coast Guard regulations specifically require
its units to obtain the permission of the Coast Guard Comman-
dant before searching foreign vessels on the high seas, see
Commandant Instruction No. 16244.1 (1978), and although
50a
the Commandant generally grants permission only after the
foreign state has consented to the search, a violation of this
regulation does not automatically constitute a violation of in-
ternational law.
Third, some authorities suggest that coastal nations have a
right to search hovering vessels up to a “reasonable” distance
from shore where serious crime is at issue, even if that search
extends beyond the state's territorial waters or contiguous
zone. See Brown, Protective Jurisdiction, 34 Am. J. Int'l L.
112, 114 (1940) (“Questions concerning the extent of the zone
of protective jurisdiction . . . can only be answered by the rule
of reason in each individual case.”); Comment to Draft of
Convention on the Law of Territorial Waters, art. 20, 23 Am.
]. Int'l L.Spec.Supp. 334, 335 (1929) (zone where search is al-
lowed “is determined not by mileage but by the necessity of
the littoral state and by the connection between the interests of
its territory and the acts performed on the high seas”); see also
Church cv. Hubbart, 6 U.S. (2 Cranch) 187, 234-35, 2 L.Ed.
249 (1804); The Panama, 6 F.2d 326, 327 (S.D.Tex. 1925);
The Rosalie M., 4 F.2d 815, 816 (S.D.Tex. 1925), aff'd on
other grounds, 12 F.2d 970 (5th Cir. 1926); The Grace and
Ruby, 283 F. 475, 478 (D. Mass. 1922); Dickenson, Jurisdic-
tion at the Maritime Frontier, 40 Harv.L.Rev. 1, 21-22 (1926).
Such a flexible interpretation of a nation’s “protective jurisdic-
tion,” see Brown, supra, conceivably fits within the exception
to the free navigation principle related to “national security”
— a provision arguably implicit in the High Seas Convention.
Cf. H. Smith, supra, at 70-71; Vand. Note, supra, at 145-46 &
n.19. Although we recognize that a provision for Coast Guard
searches up to sixty-two miles from shore proved highly con-
troversial during prohibition, see Ficken, The 1935 Anti-
Smuggling Act Applied to Hovering Narcotics Smugglers
Beyond the Contiguous Zone: An Assessment Under Interna-
tional Law, 29 U. Miami L.Rev. 700, 709 — 11 & nn. 35-36
5la
(1975), because the antipathy to international drug traffic is
more widespread than was the antipathy to the liquor trade,
see id. at 720-21, and because the use of hovering “mother
ships” has become so common, the reasonableness of searches
beyond the contiguous zone may now be more widely accept-
ed. See Restatement (Revised) of Foreign Relations § 522(2)(a)
& comment c (Tent. Draft No. 3, 1982) (search but not seizure
of narcotics smuggling ship permitted).
The application of the first two of these possible exceptions
to this case, however, would involve factually based deter-
minations not made by the district court, and to apply the
third would require a difficult exploration of the murky waters
of international law. Rather than remand the case or conduct
that exploration, we shall assume for the sake of argument that
the exceptions do not apply, and that the search therefore ex-
ceeded the bounds of § 89(a). We shall also assume that the
Coast Guard failed to comply with its regulation requiring
Honduras’ advance permission. For, as discussed below, even
under these assumptions we believe the evidence was properly
admitted.
[8] (c) We turn then to the final question: assuming that
the search violated international law and therefore was not
authorized by § 89(a), and assuming that it also violated the
Coast Guard’s “advance permission” regulation, does the “ex-
clusionary rule” require suppression of its fruits? We think
not. The Supreme Court has held that lack of statutory
authority and the contravention of a regulation do not auto-
matically invoke the exclusionary rule. See United States v.
Caceres, 440 U.S. 741, 755, 99 S.Ct. 1465, 1473, 59 L.Ed.2d
733 (1979) (“we decline to adopt any rigid rule requiring
federal courts to exclude any evidence obtained as a result of a
violation of these rules”); United States v. Giordano, 416 U.S.
505, 524-29, 94 $.Ct. 1820, 1831-33, 40 L.Ed.2d 341 (1974):
see also 1 W. LaFave, Search and Seizure § 1.3(b) (1978). The
52a
exclusionary rule was not fashioned to vindicate a broad,
general right to be free of agency action not “authorized” by
law, but rather to protect certain specific, constitutionally
protected rights of individuals. Were this not so, courts might
have to suppress, for example, information that an agency
such as the FCC (or Department of Labor) gathers in a Com-
munity Antenna Television regulatory proceeding (or a Fair
Labor Standards Act proceeding) that later turns out to have
been beyond the agency's statutory authority. Cf. United
States v. Southwestern Cable Co., 392 U.S. 157, 178, 88 S.Ct.
1994, 2005, 20 L.Ed.2d 1001 (1968) (FCC’s authority over
CATV “is restricted to that reasonably ancillary to the effec-
tive performance for the regulation of television broadcast-
ing”); Addison v. Holly Hill Fruit Products, Inc., 322 U.S.
607, 64 S.Ct. 1215, 88 L.Ed. 1488 (1944) (construing scope of
administrative authority under FLSA). Yet, the fact that an
agency's employees may exceed the scope of a statute’s or a
regulation’s authority does not automatically make their ac-
tions “unreasonable” either in Fourth Amendment terms or as
a matter of ordinary understanding of reasonableness. Thus,
it is not surprising that the Supreme Court in Caceres denied
any such principle of automatic exclusion.
On the other hand, courts have found strong reason to apply
the exclusionary rule if an agency gathered information “in
direct violation of the constitutional rights of the defendant.
...” Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct.
341, 346, 58 L.Ed. 652 (1914). But, in this case the search
violated none of Hensel’s constitutionally protected interests.
For reasons previously stated, see p. 25 supra, the search did
not invade Hensel’s Fourth Amendment privacy interests, for
the search was supported by “probable cause.” Hensel is
wrong in suggesting United States v. Ramsey, 431 U.S. 606, 97
S.Ct. 1972, 52 L.Ed.2d 617 (1977), holds to the contrary, for
Ramsey supports the notion that a court must analyze the stat-
53a
ute or regulation involved in terms of the interests protected by
that statute or regulation before deciding whether to invoke
the exclusionary rule. In this case, the statute and regulation
arguably violated (insofar as they incorporate principles of in-
ternational law) were designed not to protect the privacy
rights of ship captains, but rather to protect the rights of
foreign sovereigns. In such a situation, we find the Fifth Cir-
cuit’s conclusion in United States v. Cadena, 585 F.2d 1252,
1261 (Sth Cir. 1978), directly on point: “{T Jhere is no basis for
concluding that violation of these international principles
must or should be remedied by application of the exclusionary
rule or by dismissal of the indictment unless Fourth Amend-
ment interests are violated.” Accordingly, we reject the argu-
ment that the Coast Guard's violation of the statute and regu-
lation in this case requires us to apply the exclusionary rule.
A related way to reach the same conclusion is to say that
Hensel lacks “standing.” That is, Hensel is not entitled to in-
voke the exclusionary rule on his own behalf, for any violation
of international law invaded not his rights but rather the rights
of Honduras. The rule of international law in the case at bar
is a rule designed to secure peace among nations, not to protect
the privacy of individuals. As one commentator wrote, the
principle of freedom of the seas “does not protect the smug-
gler, but it forbids the claim, generally, to jurisdiction on the
high seas. . . .” W. Masterson, Jurisdiction in Marginal Seas
with Special Reference to Smuggling 383-84 (1929); see
McDougal & Burke, Crisis in the Law of the Sea: Community
Perspective versus National Egoism, 67 Yale L.J. 539, 539
(1958) (“The historic function of the international law of the
sea has long been recognized as that of achieving an appro-
priate balance between the special exclusive demands of coast-
al states, and other special claimants and the general inclusive
demands of all other states in the world arena.”). Even if in-
ternational law gives Hensel as captain a right to sue for dain-
54a
ages suffered during an illegal search, see The Marianna
Flora, 24 U.S. (11 Wheat.) 1, 42, 6 L.Ed. 405 (1826). The
Convention on the High Seas, supra art. 22(3); Restatement
(Revised) of Foreign Relations § 522(4) (Tent. Draft No. 3
1982) (damages awardable if suspicions of narcotics traffic
prove unfounded), this compensation right derives from the
sovereign’s right to obtain redress for damages suffered, for
“rights under international common law must belong to
sovereign nations, not to individuals . . . .” United States v.
Williams. 617 F.2d at 1090. In brief, international law pro-
tects Honduras, not Hensel. And Honduras, as far as this rec-
ord reveals, does not care.
The Supreme Court has made clear that a defendant cannot
invoke even the privacy interests of a third party in order to
complain of an unlawful search, United States v. Payner, 447
U.S. 727, 731, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). Thus,
Hensel cannot invoke the interests of Honduras, especially
since Honduras’ interests are not privacy interests, are waiv-
able, and have not been asserted by Honduras. See also Rakas
v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978);
Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22
L.Ed.2d 176 (1969).
In sum, whether or not Canadian law authorized the seiz-
ure, whether or not there was sufficient evidence of a “joint
venture” to invoke constitutional protections, and whether or
not the seizure was unlawful under international law, the evi-
dence against Hensel was properly admitted.
Ill
Hensel’s Hearsay Argument
[9] We turn next to a minor matter, and Hensel’s only addi-
tional argument for reversal. Hensel claims that the trial
55a
court erred in admitting into evidence a glass found at the
Turkey Cove property. The giass had on it the word “Dink,”
Hensel’s nickname, and tended to tie Hensel to those at Turkey
Cove. As admitted to show this relation, Hensel states, the
glass was hearsay.
We are tempted to say any error was “harmless” as to Hen-
sel, see, e.g., United States v. Honneus, 508 F .2d 566, 572-73
(Ist Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44
L.Ed.2d 101 (1975), but we need not do so, for the glass was
properly admitted. The fact that the word “Dink” appears on
the glass does not itself make the glass hearsay evidence, for no
assertion intended by the act of putting the word on the glass
was relevant to the chain of inferences the government wished
the jury to draw. The jury was not asked to infer anything
about the person who put the name on the glass, who for all
we know or care works in a factory that turns out “name”
glasses by the score. Rather, the jury was asked to infer that
Dink Hensel was likely to have possessed a glass with the name
“Dink” on it and that he, or someone he knew, placed it in the
house at Turkey Cove. The first of these inferences is merely
circumstantial. There is no obvious way it depends upon the
statement or state of mind of any out-of-court declarant.
The second of these inferences could involve hearsay only if
one accepts a highly complex line of argument: Hensel might
claim that he would like to cross-examine the “unknown” per-
son who brought the glass to Turkey Cove on the ground that
this out-of-court person’s state of mind is relevant to the validi-
ty of the second inference. In order to invoke the hearsay rule,
Hensel would have to argue that this individual's “nonverbal
conduct” in placing the glass in the house was “intended by
him as an assertion,” Fed.R.Evid. 801 (a) (2), that “Hensel was
here.” Even were one to make the heroic assumption that this
was Hensel’s argument, it fails. It fails because Hensel did not
preliminarily show the district judge that placing the glass in
56a
the house was intended as an “assertion” (e.g., that it was de-
signed to “frame” Hensel). Yet, the Federal Rules of Evidence
“place the burden [of proving such an assertive intent] upon
the party claiming that the intention existed.” Fed.R.Evid.
801 Advisory Committee note (a). Hence, the glass was not
shown to be hearsay and it was properly admitted.
IV
The Other Defendants’ “Search and
Seizure” Issue
Defendants Case, Duke, Hubbard, and Standley challenge
the admission of all evidence the government obtained as a
result of Agent Cunniff’s observation of the license number of
the jeep on Lot No. 3 on June 3. This license number was a
key piece of evidence. It showed that the jeep belonged to
Wells whose telephone number Hensel had given to the
O’HARA prior to the Coast Guard chase. Thus, the license
number helped link the ship to the defendants on shore, and
much subsequently obtained evidence is arguably a “fruit” of
its observation.
For purposes of this appeal we accept the district court's
findings, for they are adequately supported in the record.
Agents Cunniff and Sinclair walked along to the public beach
and waded through waist-high water to observe the dock on
Lot No. 3 where they thought a ship carrying drugs was about
to dock. The agents apparently believed that the only way
back to civilization without braving the deep water lay
through Lot No. 3. Accordingly, they crossed the lot to return
to the public access road, and along their way saw the jeep in
the driveway and noted the license number. Under these cir-
cumstances, the agents may have had a legal right to pass
through Lot No. 3. See, e.g., Ploof v. Putnam, 81 Vt. 471, 71
57a
A. 188 (1908). Even if we assume they were trespassers, how-
ever, we believe they did not violate any of the defendants’
Fourth Amendment rights.
(10) To show that their constitutional rights were violated,
defendants must show that they had “a legitimate expectation
of privacy” in the license number of the jeep parked in the
driveway. See, e.g., Rawlings v. Kentucky, 448 U.S. 98, 104,
100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); United States v.
Saloucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2552-53, 65
L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. at 149, 99
S.Ct. at 433. The district court found no such legitimate ex-
pectation, given that a license plate is an item normally re-
vealed to the public and that this license plate was observed in
a place where the owner could not reasonably have expected it
to remain hidden. United States v. Hensel, 509 F.Supp. at
1386.
The fact that the plate itself is designed for public exposure,
while relevant, see United States v. Humphries, 636 F.2d
1172, 1179 n.12 (9th Cir. 1980), cert. denied, 451 U.S. 988,
101 S.Ct. 2324, 68 L.Ed.2d 846 (1981), is not determinative.
It would not, for example, justify the search of a bedroom if
the plate were hidden in the mattress. Thus, we have ex-
amined the record, including the aerial photographs, with
some care to determine the nature of the place where the jeep
was parked.
The testimonial descriptions and the photographs suggest
that the driveway to Lot No. 3 is not quite so nestled in the
“middle of nowhere” as defendants would have us believe.
Rather, they indicate that houses and farms are scattered
every few hundred yards along the highway, and that other
residents have built cabins along the coast. The public high-
way runs within one-quarter to one-half mile of the buildings
on Lot No. 3 and three-quarters of the distance from the build-
ing to the highway is spanned by a semi-public road — a sub-
58a
division road that was open to people other than the owners or
users of Lot No. 3. The record contains testimony that mem-
bers of the public generally considered the beach open to their
use for clamming and “gunning,” and that they used the
wooded area for hauling wood and fishing. On the other
hand, there were “no trespassing” signs and there was a chain
across the drive (although the government produced testimony
that the chain and all but one sign first appeared after June 3).
In any event, taken together, the evidence could lead the dis-
trict court reasonably to conclude that the defendants should
have expected that a license plate on a jeep parked on their
driveway — apparently only one or two hundred yards from a
subdivision road, and squarely between that road and a beach
used at least sometimes by clammers, hunters and others —
would not remain hidden from the occasional passerby.
We have also reviewed the case law on the subject. This
case seems a less compelling one for defendants than many
other cases in which similar searches were upheld. See United
States v. Lace, 669 F.2d 46 (2d Cir. 1982) (surveillance of
70-acre Vermont farm by agents who entered the farm in mili-
tary camouflage uniforms and maintained round-the-clock
surveillance with such equipment as nightscopes, 130-power
Questarlens, and infra-reg goggles); United States v. Ramapu-
ram, 632 F.2d 1149 (4th Cir. 1980) (search of trunk of junk car
abandoned on farm owned by defendant's father, where
agents were able to reach car only by driving 200 yards down
* private road and then walking by foot across open field), cert.
denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981);
see also United States v. Edmonds, 611 F.2d 1386 (5th Cir.
1980) (search of private dock area upheld, where public gener-
ally considered it open to public); United States o. Humphries,
636 F.2d 1172, 1178-79 (9th Cir. 1980) (evidence obtained as a
result of an agent’s entrance onto private driveway to observe
license number of parked car), cert. denied, 451 U.S. 988, 101
S.Ct. 2324, 68 L.Ed.2d 846 (1981).
59a
We have been unable to find any case in which courts have
accepted claims similar to that of defendants. And, the cases
they have cited are distinguishable. See United States v.
Oliver, 657 F.2d 85 (6th Cir. 1981) (search unconstitutional
where agents passed many “No Trespassing” signs and locked
gate along private road, and were told to leave premises); Fix-
el v. Wainwright, 492 F.2d 480 (Sth Cir. 1974) (search uncon-
stitutional where agents searched shaving kit hidden in back-
yard); United States v. Davis, 423 F.2d 974 (5th Cir.) (search
unconstitutional where agents made warrantless search of de-
fendant’s yard and seized pistol), cert. denied, 400 U.S. 836,
91 S.Ct. 72, 27 L.Ed.2d 68 (1970); Wattenburg ov. United
States, 388 F.2d 853 (9th Cir. 1968) (search unconstitutional
where agents searched pile of trees next to lodge and seized
nine trees as evidence); Sanders v. State, 264 Ark. 433, 572
S.W.2d 397 (1978) (observation of garden located behind
home and separated by fence from home impermissible); Nor-
man v. State, 134 Ga.App. 767, 216 S.E.2d 644 (1975) (search
unconstitutional where agents searched truck located behind
barn behind house); State vo. Kender, 588 P.2d 447, 60 Hawaii
301 (1978) (observation unconstitutional where officer
climbed fence to observe plants hidden behind dense, tall
vegetation in defendant's backyard).
Given the facts and case law, we believe the decision of the
district court on this issue was correct.
Vv
The Sufficiency of the Evidence
[11] Each defendant, with the exception of Hensel and
Duke, argues that the evidence against him was insufficient
for conviction. On appeal, our task is to “consider the evi-
dence as a whole, taken in the light most favorable to the Gov-
60a
ernment, together with all legitimate inferences to be drawn
therefrom, to determine whether a rational trier of fact could
have found guilt beyond a reasonable doubt.” United States
v. Patterson, 644 F.2d 890, 893 (Ist Cir. 1981); see United
States v. Doran, 483 F.2d 369, 372 (Ist Cir. 1973), cert.
denied, 416 U.S. 906, 94 S.Ct. 1612, 40 L.Ed.2d 111 (1974);
Parker v. United States, 378 F.2d 641, 644 (Ist Cir.), cert. de-
nied, 389 U.S. 842, 88 S.Ct. 81, 19 L.Ed.2d 107 (1967). To
convict the defendants of conspiring to import marijuana into
the United States, the government bore the burden of proving
that each defendant knowingly and intentionally joined that
conspiracy. See Direct Sales Co. v. United States, 319 U.S.
703, 709, 63 S.Ct. 1265, 1268, 87 L.Ed. 1674 (1943); United
States v. Izzi, 613 F.2d 1205, 1210 (1st Cir.), cert. denied, 446
U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 793 (1980); United
States v. Mora, 598 F.2d 682, 683 (1st Cir. 1979) (“the gist of
conspiracy is an ‘agreement to disobey or to disregard the
law’). But, “[pJarticipation in a criminal conspiracy need
not be proved by direct evidence; a common purpose and plan
may be inferred from a ‘development or collection of circum-
stances."” United States v. Stubbert, 655 F.2d 453, 456 (lst
Cir. 1981), quoting Glasser v. United States, 315 U.S. 60, 80,
62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). We apply these
standards first to the strongest defense claims — those of
Standley, Hubbard and Case. We then turn to defendants
Wells and Dill.
A
Standley, Hubbard and Case
1. Standley, Hubbard and Case are three carpenters who
moved to Maine and worked on the Turkey Cove property.
We suspect the sufficiency of the evidence against them turns
6la
on the proper use of two key pieces of evidence: a “prep-
aration” and “clean up” list (Government Exhibit 110), and a
payroll list (Government Exhibit 111), both of which govern-
ment agents found in the bedroom where defendant Duke was
working at the time of his arrest. Government Exhibit 110
consists of a yellow pad which includes: 1) a page entitled
“Clean Up Crew 20 Minutes” that contains suggestions of
things to be done to move the “bales” from the boat to the
boathouse and van, and lists fourteen names including “Bob-
by” and “Flip” (see Appendix I); 2) nineteen pages headed
“Master List,” with numbers one through 950 in columns and
a heading “Total per col. — wt” at the bottom of each col-
umn; 3) a page headed “Wet Ones List;” 4) a page listing
“Total Gross Weight” and “Total Net” by truck; and 5) a page
headed “Preparation Group 9:00 Dark” which lists six names
including “Charlie,” and “Bobby” (see Appendix IT). Since in-
dependent evidence indicated that defendant Case was known
a
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