Petition — Herrmann v. United States

Supreme Court brief1983

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8 3 -] 7 6 JUL 29 1933

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1983

bs No.

THOMAS HERRMANN, Petitioner

Vs.

UNITED STATES OF AMERICA, Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATE SUPREME COURT

FROM THE COURT OF APPEALS

OF THE NINTH CIRCUIT

PHILIPS B. PATTON

Counsel of Record for

Petitioner

124 Locust Street

Santa Cruz, California

95060

Telephone: 408-423-7374

Of Counsel: BARNEX ELDERS

124 Locu Street

TABLE OF CONTENTS/ INDEX

TABLE OF AUTHORITIES «. «© «©... «© © « @ 4

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW . . «© «© © = © © e's

JURISDICTION «+ © © © © #@ 8 & 8 8

QUESTIONS PRESENTED ...+e+ +e «@

STATUTE INVOLVED ..... 6 eee

STATEMENT OF THE CASE ...... -

PETITIONER JOINS IN THE PETITION

OP GEORGE ENNIS . . 5 «© 6+ © © 6+ » *

REASONS FOR GRANTING THE WRIT

THE WRIT SHOULD BE GRANTED TO

RESOLVE CONFLICTS AMONG THE

COURTS OF APPEAL REGARDING

BOARDINGS UNDER 14 USC § 89 AND

TO DETERMINE WHEN SUCH BOARDINGS

MAY BE CONSIDERED PRETEXTURAL

THUS DECIDING AN IMPORTANT

QUESTION OF FEDERAL LAW WHICH

HAS NOT BEEN, BUT SHOULD BE

SETTLED BY THIS COURT IN ORDER

TO PROVIDE A UNIFORM RULE

THROUGHOUT THE MARITIME

JURISDICTION OF THE UNITED

Shame +s «¢ we le She RE 2 we ee

THIS COURT SHOULD EXERCISE ITS

POWER OF SUPERVISION TO PREVENT

THE COURT OF APPEALS FROM

SANCTIONING THE CONVICTION

BASED UPON CLEARLY INSUFFICIENT

BViMVEMGE © on. & le Se SS ef

THIS COURT SHOULD EXERCISE ITS

POWER OF SUPERVISION TO PREVENT

A DEPARTURE BY THE COURT OF

APPEALS FROM ACCEPTED AND USUAL

JUDICIAL PROCEEDINGS BY FAILING

TO RULE ON ISSUES PRESENTED ON

APPEAL . . . . . . . . . -_ . . . . 28

os Sie GS ee a ee ee er ee) |

APPENDIX A: OPINIONS BELOW ......- 31

MEMORANDUM OF OPINION DENYING

MOTION TO SUPPRESS (District Court) .31l

OPINION (of the United States Court

of Appeals for the Ninth Circuit) . .41

APPENDIX B:DISTRICT COURT JUDGMENT

AND ORDER RE REHEARING .......- . +59

JUDGMENT AND PROBATION/COMMITMENT

ORDER (District Court) . . . ae. On

ORDER (denying rehearing by the

Court Of Appeals) ..+«++-+-¢«e+ee »

APPENDIX C: STATUTE INVOLVED ....-.- 64,

APPENDIX D: OPERATIONS ORDER... + + 65,

TABLE OF AUTHORITIES

CASES

Page

Abel v. United States, 362 U.S.

Sat SAE ee 6 cele eo ee en ee Cee

Almeida-Sanchez v. United States,

413 U.8. 266 (1973) 66 shew ie) 6 bey Oe

Beck v. Ohio, 379 U.S. 89 (1964) .. 25

Camara v. Municipal Court, 387 U.S.

523 (1967) . . . . . . . . . - . 7 . 18,21,

Coolidge v. New Hampshire, 403 U.S.

S63 (iSte) a so ee te ee SO ee Oe

Delaware v. Prouse, 440 U.S. 648

(LORE 0 A bee eee + ow fee 2 ee

16, 20,21

Florida v. Royer, U.S. (March

23, 1983) (No. 80-2146) ..... .« 19

Henry v. United States, 361 U.S. 98

(29GCs 6 Se ee bee Se ee ee

Hall v. United States, 286 F.2d 676

(SGh Cie. LEGA) « « 6 0 6 #8 e ve BE

Jackson v. Virginia, 443 U.S. 307

eh ys | re he eee eee ee

iii

Lucas v. United States, 325 F.2d

SG? (Sth Ciz. 2963) « 2 2 0 oe oe ee 6 ee ee

Marshall v. Barlow's Inc., 436 U.S. 307

Ceres} Pais 6 ee a) 6 8 Ck ke Coa

Mapp v. Ohio, 367 U.S. 643 (1961) .. . 25

Michigan v. Tyler, 436 U.S. 499 (1978). 18,

20, 24

Sibron_v. New York, 392 U.S. 40

BOER Lh. Ke HL PRN s Oe es A Oe ERR. oe ee,

Sorrells v. United States, 287 U.S. 435,

ChPee) + te ere es 8 oes al we 6-8 eo) eee

South Dakota v. Opperman, 428 U.S. 364

(1976) . . . - . . . . . 7 . . . . . . . 25

Taglavore v. United States, 291 F.2d 262

(9th Cir. 1961) .... . a oe ae ae 24

Terry v. Ohio, 392 U.S. 1 (1968) .... 19

United States v. Arra, 630 F.2d 836 (lst

Cie.) 2OGL) ees 68 6 ee 8-8 wer oe Cee

United States v. Brignoni-Ponce, 422 U.S.

873 (1875) . . - . . . . . . . . . . “ee 19

United States v. Cloughessy, 572 F.2d

196 (90h Cie. G977) «s+ oe ois eo ervvnenn

United States v. DeManett, 629 F.2d 862

(36 Cis. 39000 + 4 eee i eo oo 6 4+

United States v. Frederico , 658

P.2G. 1337 (Sth Cir. 1981) . «- « ¢ «© = .68

United States v. Harper, 617 F.2d

35 (4th Car. 1900) «+ +s st ue es a ee

United States v. Heyes, 653 F.2d 8

(et Cir. 19GL} «© we seen vesetveu ts &

United States v. Martinez-Fuerte,

428 U.S. 543 (1976) . . . . . . . . . . 19

United States v. Piner, 608 F.2d 358

(9th Cis. LETS) oe Sie oe @ & See eee

United States v. Raub, 637 F.2d 1205

(9th Cie. 1980) . . . . . . . . . . . oe

United States v. Rubies, 612 F.2d 397

(PER Cit. 2960) . «a 4s 0) + 6.05.3 eee

United States v. Villamonte-Marguez,

U.S. (February 23, 1981)

(No. 81-1350) . . . . . . . ° . . . . obte

16, ai 22, 28

United States v. White, 463 F.2d 18

(9th Cis. 1972) . . . . . . ‘ oO . . ° - 26

CONSTITUTION

United States Constitution, 4th

0 a ee ee

i6, i7, 326. Se

STATUTES

14 usc § 89 . . + ¢ ey Bp Oy £3;

a8, 25¢ S79 Sa

18 USC § 231 . ° . 3g

19 USC § 1581 . e bay a2

21 USC § 84la "te 8

21 USC § 846. , , - 8

21 USC § 952 (a) 8

21 uSC § 951 (a) oe 26

21 USC § 963 . ° a

Og ee” a a eee

oe Wee © 2S 6 kw ee e- 3

OTHER

Rule 4l1(a) and 41(c) (2) Federal Rules

of Criminal Procedure ... 18

Rule 19.4 of the Rules of the

United States Supreme Court. ll

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1983

No.

THOMAS HERRMANN, Petitioner!

vs.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI

THE SUPREME COURT OF THE UNITED STATES

To the Honorable Chief Justice and Associate

Justices of the Supreme Court of the United

States:

THOMAS HERRMANN, petitioner herein, prays

that a writ of certiorari issue to review the

judgment of the United States Court of Appeals

entered in the above-entitled case on June 16,

1983.

OrINIONS BELOW

The memorandum opinion of Hon. Spencer Williams

, Judge of the District Court; the opinion of

the Court of Appeals, and the concurring

1/ Co-defendants and appellants on consoli-

dated appeal were JAMES EAGON and GEORGE ENNIS,

the later who concurrently petitions this Court

and in whose petition this petitioner joins.

Opinion of Boochever, Circuit Judge, are set

forth at Appendix A. The judgment of the

District Court and order of the Court of

Appeals denying rehearing are set forth at

Appendix B.

JURISDICTION

The judgment of the Court of Appeals was

issued on November 22, 1982 (Appendix A) and

thereafter a petition for rehearing was made

and denied June 3, 1983 (Appendix B). The

jurisdiction of the Supreme Court is invoked

under 28 USC § 1254(1).

QUESTIONS PRESENTED

l. Whether a boarding by the Coast Guard in

territorial waters under 14 USC §89(a) absent

a reasonable suspicion of violation of law is

reasonable under the Fourth Amendment and

whether the law, in this respect, should vary

according to whether the boarding is at least

partly motivated by a valid administrative

purpose or whether its purpose is entirely to

discover a violation of the criminal law.

2. Whether the Court of Appeals, by allowing

a conviction to stand based on insufficient

evidence has thereby so far sanctioned a

departure from the accepted and usual course

of judicial proceedings by the District Court,

as to call for an exercise of this Court's

power of supervision.

3. Whether the Court of Appeals by failing

to rule on several issues on appeal has so far

departed from the accepted and usual course of

judicial proceedings as to call for an exercise

of this Court's power of supervision.

STATUTE INVOLVED

The statute involved is 14 USC §89 set forth

in Appendix C to which reference is made.

STATEMENT OF THE CASE

This is a criminal action brought by the United

States against petitioner for importation and

possession of a controlled substance, marijuana.

The District Court's jurisdiction was predicated

upon 18 USC §3231 and the jurisdiction of the

Court of Appeal predicated upon 28 USC §1291.

The parties in this matter stipulated to the

following facts and the factual basis for all

proceedings in District Court were pursuant to

Stipulation. On 12-18-80 at 10:00 PM, Coast

Guard vessel 41367 was on patrol in Monterey

Bay, California At the time of patrol it was

Operating exclusively under the provisions of

an "operating order" (oporder) code named

"Merry Jane"? under which the vessel and its

crew were to conduct random harbor blockades

of Monterey Bay because of the fact that the

holiday season would bring "an increase in

smuggling activities" and; in so doing, to

to board all inbound vessels less than 200

feet in length to check documentation with

verification of the main beam number if safety

boardings were not made (see Appendix D).

There were no other guidelines in force to

determine which boats the 41367 should stop

and board. On the evening in question the 41367

was under the command of Chief Petty Officer

David Emerson Wickstrom who was the only person

On board empowered to make decisions to board

Other vessels and who had reviewed, but never

operated under a similar set of, orders. While

underway on the bay in search of a larger Coast

2/ stipulated to be the slang term for

marijuana

Guard vessel, the 41367 sighted a large contact

on radar and observed a smaller contact appear

to leave the large contact. Visual contact was

then made with the smaller contact which was

a small motor boat. The 41367, which was then

running without lights, under radio silence,

and at a high rate of speed, then visually

sighted the S/V REVERIE, a sailing vessel,

which was stationary at first sighting about

one mile offshore and which shortly thereafter

activated its running lights (which was standard

operating procedure according to Wickstrom)

and began moving slowly toward shore.

Wickstrom observed that the fenders were over

the side and that there were three people on

deck. The 41367 pulled alongside and directed

a spotlight at the REVERIE which illuminated

the entire area. Wickstrom and the three

people on the REVERIE engaged in casual

conversation in which Wickstrom learned that

the REVERIE had been experiencing clutch

trouble which had just been fixed and that

the vessel was now headed a hundred miles or

south, down the coast. Wickstrom made a

decision to board the REVERIE as soon as he

sighted the vessel. The REVERIE was hailed to

"heave to and prepare to be boarded" and within

five minutes after first visual sighting

Wickstrom and an assistant, armed with side-

arms, were aboard the REVERIE with another

seaman on the bow of the 41367 holding a riot

shotgun and facing the REVERIE. As the decks

of the vessels were within inches of each

other, the boarding was "Ship to ship".

Wickstrom testified that at no time between

the radar sighting and observation onboard

the REVERIE of what he thought might be

contraband did he think the REVERIE was stolen,

that any customs violation was occuring, that

it was carrying any contraband, that a fisheries

violation was occuring, that the crew was armed

and dangerous, or that any punishable offenses

, illegality, or violations of law or statute

were occuring aboard the REVERIE. He was a

little suspicious of some illegal activity but

when questioned"what illegal activity were you

suspicious of" he replied "I couldn't say”.

In fact, the only reason he boarded the REVERIE

was that he felt that, under the operations

order, he had no choice but to board. He stated

that he boarded to make a documentations

inspection. After boarding between one and

five minutes were spent talking to the crew

and examining documents. Then, as Wickstrom

was standing over an open hatch, he looked

down and observed "bales (and) vegetable

sprinklings" that he thought were contraband.

A search of the REVERIE was then made resulting

in the observation of a number of bales. The

vessel was then towed in Monterey harbor where

DEA agents made a thorough search discovering

marijuana in the bales, three passports of the

defendants, a document written in Spainish,

and the ownership documents for the vessel which

showed the vessel owned by a third party. At

no time was a search warrant obtained, even

though it was admitted that Wickstrom could

have obtained a telephonic warrant or required

the REVERIE to wait for a warrant or accompany

it into the harbor to await a warrant; and

even though the REVERIE could have been

secured to allow a warrant to be obtained

after it was in the harbor.

An indictment was filed against petitioner

charging him with importation and possession

for sale of a controlled substance; and

conspiracy to commit those crimes, 21 USC

§§ 952(a), 963, 841(a) (1) and 846. Petitioner

moved to suppress the evidence, to wit, the

Observations made in the Bay and the subsequent

physical seizures made in the harbor, which

motion was denied. Thereafter, petitioner

submitted the case for trial to the court on

stipulated facts, renewing his objections to

the evidence. No direct evidence was intro-

duced that petitioner or any of his co-

defendants were ever physically present on

the REVERIE by name or description. The only

evidence possibly linking petitioner to the

vessel on the evening of the arrest was a

passport seized from the REVERIE during the

warrantless search in the harbor. Another

document was seized in the harbor, however,

which showed the master and owner of the

vessel to be two persons other than petitioner

and his co-defendants. No evidence was offered

that petitioner, or any co-defendant, was in

physical possession of any marijuana. Based on

this evidence, petitioner was found guilty

On each count charged.

Following filing of notices.of appeal by

petitioner and all co-defendants, the case

was consolidated for appeal. Petitioner

contended, on appeal, that the evidence

had been erroneously admitted because, under

the provisions of the oporder, the boarding

was a search for fruits of a crime which

lacked a warrant or probable cause; and

because, even if judged by standards applicable

to administrative searches, the boarding was

defective due to lack of an administrative

warrant or reasonable suspicion of an admin-

istrative violation. On these issues the

Court of Appeals failed to find on the issue

of whether an administrative warrant was

required: as to the other issues, it found

that the boarding was an administrative search

justified because it had been conducted pur-

suant to an administrative plan which removed

discretion from the officer in the field. The

"plan" cited was the oporder. The Court of

Appeals, in so holding, relied heavily ona

9th Circuit decision, United States v. Piner,

608 F.2d 358 (1979) which, in turn, relied

almost exclusively on Delaware v. Prouse, 440

U.S. 648 (1978).

Petitioner also argued that the evidence was

erroneously admitted because the search in

the harbor had been conducted without a

warrant. The Court of Appeals did not even

comment on this contention, although it

affected the bulk of the evidence, besides

the observations made in the bay.

Lastly, petitioner argued that the conviction

should be reversed because it was based on

insufficient evidence, as no evidence that

petitioner was present at the time the REVERIE

was stopped and boarded was ever presented.

The Court of Appeals refused to consider this

issue, as well, citing petitioner's failure to

raise it in the trial court (by way of a

motion for judgment of acquittal).

On November 22, 1982, the Court of Appeals

issued its opinion affirming the conviction

(Appendix A) and thereafter a petition for

rehearing was made and denied on June 3,

1983 (Appendix B).

PETITIONER JOINS IN THE PETITION OF

GEORGE ENNIS

Petitioner joins in the petition for writ of

certiorari, if any, filed in forma pauperis

by George Ennis in the matter of GEORGE ENNIS

vs. UNITED STATES pursuant to Rule 19.4 of the

Rules of this Court.

REASONS FOR GRANTING THE WRIT

4 1.

THE WRIT SHOULD BE GRANTED TO

RESOLVE CONFLICTS AMONG THE

COURTS OF APPEAL REGARDING

BOARDINGS UNDER 14 USC §89 AND

TO DETERMINE WHEN SUCH BOARDINGS

MAY BE CONSIDERED PRETEXTURAL,

THUS DECIDING AN IMPORTANT

QUESTION OF FEDERAL LAW WHICH

HAS NOT BEEN, BUT SHOULD BE SETTLED

BY THIS COURT IN ORDER TO PROVIDE

A UNIFORM RULE THROUGHOUT THE

MARITIME JURISDICTION OF THE UNITED

STATES.

14 USC §89, the statute which provides the

authority for the boarding in this case,

allows the Coast Guard to "make inquiries,

examinations, inspections" etc. "upon the

high seas and waters over which the United

States has jurisdicition" and "[f]or such

purposes" to "go on board of any vessel"

to “address inquiries", “examine the ship's

documents", "search the vessel", etc.

On its face, this statute appears to permit

boardings at any time for any purpose without

any suspicion of any violation of law.

Yet, as has been recognized many times, no

act of Congress can authorize a violation

of the Constitution, Almeida-Sanchez v.

United States, 413 U.S. 266 (1973).

The question then becomes whether a boarding

under this statute without even a reasonable

suspicion of violation of law in territorial

waters at nighttime under the provisions of

an operating order such as the one in effect

in this case can be justified under the

Constitution. t-

This case presents this issue, and a related

issue, in the context of a clearly deliniated

set of facts. Certainly, under the evidence,

there could be no suggestion that any “reason-

able suspicion" of violation of law motivated

the boarding in this case.

During its last term, this Court, in United

States v. Villamonte-Margquez, U.S. (Feb.

23, 1983) (No. 81-1350) decided that such a

suspicionless boarding would be constitution-

ally permissible when made by customs officers

Operating, albeit without an “oporder" such

as was in effect in the present case, under

19 USC 1581l(a).

19 USC §158l(a) is a "Sister" statute of the

law in issue here, 14 USC §89, having similar

language and origin: and, while there are a

number of reasons, not the least among them

the effect of the oporder in the present case,

why this case is distinguishable from Villa-

monte-Margquez, as will be demonstrated, herein,

the fact remains that the circuits have issued

widely disparate rulings on the effect of

19 USC §&9 boardings; and it would seem

appropriate to bring the circuits into

conformity on this issue as was done with 19

USC §1581, although a different result is

urged in the case of the Coast Guard statute.

For instance, one need merely compare the

approach of the Ninth Circuit (United States

v. Piner, 608 F.2d 358, that such boardings

are impermissible under Delaware v. Prouse,

440 U.S. 648 (1979), if conducted at night

without cause or an acceptable administrative

plan) to the Third Circuit (which has suggested

that Prouse does not even affect such

boardings, United States v. DeManett, 629 F.2d

862 (1980) ) to the First Circuit (which

requires absolutely no warrant or suspicion

of wrongdoing under any cirucmstances, see

United States v. Heyes, 653 F.2d 8 (1981) ),

and so on.

In addition, as mentioned above, this case

presents another issue, in addition to the

relationship between 14 USC §89 and the

Fourth Amendment, that is, while discussed by

a great number of cases involving 14 USC §89

boardings, is no where presented as vividly

as by the facts in this case: that is, the

issue of the use of 14 USC §89(a) authority in

an administrative context as a pretext for

investigation of criminal activity. 14 USC

§89(a) has traditionally been analyzed under

Fourth Amendment principles applying to

administrative searches. While there has been

some suggestion of criminal law enforcement

motivation in a number of cases in various

Ccirucits such as United States v. Arra, 630

F.2d 836 (lst Cir. 1981), United States v.

Rubies, 612 F.2d 397 (9th Cir. 1980), and

United States v. Harper, 617 F.2d 35 (4th Cir,

1980), a co-existing "administrative purpose"

or other justification for boarding has

consistently been found in these cases which

has neutralized the claim of pretext and argu-

ment that the case should be analyzed under

Fourth Amendment principles applying to

criminal law enforcement. Here, however, the

Oporder makes it clear that the only reason

for the boarding was to discover evidence of

smuggling, using administrative reasons as

pretext for boarding for this purpose.

Thus framed, what should the result be of the

boarding under the Constitution in this case?

The Fourth Amendment secures the right of the

people to be protected in their persons, houses,

papers and effects against unreasonable

searches and seizures. The stop, as in this

case, much less the boarding, is a seizure

which must be justified under the Fourth

Amendment, United States v. Villamonte-Marquez,

U.S. (Feb, 23, 1983) (No. 81-1350),

Almeida-Sanchez v. United States, 413 U.S.

266 (1973).

The central inquiry under the Fourth Amendment

is the reasonableness in all the circumstances

of the particular government invasion of a

citizen's personal security, Delware v. Prouse,

440 U.S. 648, 653 (1979). This analysis re-

quires the balancing of governmental needs

analyzed 1) in terms of whether the government

action is a "sufficiently productive mechanism"

and 2) whether "less intrusive alternatives"

are available, against the subjective and

objective intrusion on individual interests.

In a maritime context, the intrusion should be

considered the boarding of the vessel, not the

events that occur after the vessel is boarded,

see United States v. Raub, 637 F.2d 1205

(9th Cir. 1980). In an administrative

inspection context, the fact that the stop was

conducted pursuant to an administrative order

which removed certain discretion from the

boarding officer does not automatically

validate the intrusion: it is merely a factor

to be considered in applying the Fourth

Amendment test.

To allow the boarding of a noncommercial

vessel in territorial waters in the night-

time without "cause" except the broad justifi-

cation of 14 USC 89(a) clearly offends the

balancing test under the Fourth Amendment:

the intrusion, especially when accompanied

by prior radio silence, searchlights, the

Coast Guard having run without lights prior

to the encounter, ship to ship boarding and

displayed weapons, is just too great to

justify serving the generalized government

need for documentation compliance in such a

case absent some indication of a violation of

law or regulation. How, then, must such

intrusions for administrative purposes be

justified?

The Constitution contains a clear preference

for warrants in the case of any search or

seizure, whether administrative or otherwise:

there is no reason, given the circumstances,

why an "area" or telephonic warrant could not

have been obtained had there been sufficient

cause for this boarding, Camara v. Municipal

Court, 387 U.S. 523 (1967), Marshall v.

Barlow's Inc., 436 U.S. 307 (1978), Michigan

v. Tyler, 436 U.S. 499 (1978), Rule 4l1(a) and

(telephonic warrants). The mere absence of an

administrative warrant should make this search

illegal.

Even if an administrative warrant is, for some

reason, excused, there is no showing in the

evidence in this case, that the governmental

need outweighed the intrusion on individual

interests,

To begin with, the government put on no

evidence regarding the absence of less

intrusive alternatives or whether the stops

and boardings, such as in this case, were

"sufficiently productive mechanisms". This

element of the balancing test, in a warrant-

less stop and boarding, is clearly the burden

of the government to prove and having failed

to do so there is clearly not sufficient

evidence to demonstrate justification for a

warrantless search and seizure, Florida v.

Royer, U.S. (March 23, 1983) (No. 80-

2146).

Further, it is obvious that less intrusive

alternatives were available such as limiting

the intrusion to a stop and questioning unless

some violation was discovered, United States

v. Martinez-Fuerte, 428 U.S. 543 (1976), United

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

Terry v. Ohio, 392 U.S. 1 (1968), handing the

documents from one vessel to the other, or

limiting the boarding to the daytime,

The Court, however, as mentioned, validated

the conviction by its interpretation of Delaware

v. Prouse, 440 U.S. 648 (1978) dictum on the

basis that the boarding was conducted pursu-

ant to a "administrative plan” which "removed

discretion" of the officer in the field. Yet

it is obvious that such a removal of discretion

cannot ipso facto validate a search and that

an administrative order, such as the oporder

in this case (which is Constitutionally

offensive on other grounds, infra) cannot

authorize a violation of the Constitution.

It cannot, as the Court of Appeals seemed to

rule, exause the analysis of the intrusion

under the "balancing test" of the Fourth

Amendment: the administrative plan, itself,

would have to be "reasonable"under this

analysis and would have to draft-out

"aribtrary" government action which is more

the touchstone of validity than "discretion",

Michigan v. Tyler, 436 U.S. 499 (1978). Unlike

the oporder, a "plan" would have to minimize

subjective intrusion. Further, it would

seem that any administrative plan obtained, as

it would be, in advance of its execution, could

and should be subject to the approval of a judge

or magistrate, see Camara v. Municipal Court,

387 U.S. 523 (1967). Lastly, the boarding in

this case might be characterized as random and

discretionary in any event and thus outside of

the Prouse dictum when one realizes that the

oporder compels "random" blockades by its terms

and allows the group commander "discretion" to,

choose dates and locations, not to mention that

discretion was exercised by boarding the REVERIE

and not the "small contact" in this case. Thus

even under an administrative plan the issues

devolve upon the same balancing test as other

Fourth Amendment questions and would seem to

fail for the same reason.

Further, it is clear that United States vs.

Villamonte-Margquez, U.S. (Feb,23, 1983)

(No. 81-1350) does not answer the issues posed

by this case due to numerous distinctions:

first, the intrusion in that case was less in

that the boarding there was in the daytime

rather than night and no weapons were displayed.

Further, the governmental interest in that

case was greater in that customs law enforce-

ment, which deals directly with importing and

smuggling was involved under 1581l(a), rather

than safety and documentation compliance

under 89(a). Further, in that case the vessel

was foreign, increasing the need for immediate

supervision; the waters were in proximity to

a customs port of entry; the vessel was

apparently in a known smuggling area; and

less intrusive alternatives, such as handing

documents across or mere questioning, did not

appear to be available. It should be noted,

however, that peititioner regards boarding

a vessel as more intrusive than stopping a car

and looking in since boarding is more like

entering a car and a ship is more like a

home than a car,

Yet there is an additional reason, despite

14 USC §89(a) and the Villamonte case, why the

boarding of the REVERIE should be considered

an illegal search and seizure: when a search

or seizure is conducted with the purpose of

discovering evidence to be used in a criminal

prosecution, and nothing else, its "reasonable-

ness" should be judged by standards applicable

to criminal investigations, that is, probable

cause. There appears to be much confusion among

the circuits as to the deliniation between

administrative and criminal investigations

in terms of when an ostensibly administrative

inspection should be considered "pretextural".

Some of the cases involve customs searches where

the much stronger government need validates

the search as long as there is any legiti-

mate customs basis; others involve investi-

gations on the high seas where, for a variety

of reasons, governmental need has also been

considered greater and automatically validating

regardless of motivation; and others, more on

point, involve cases where the court has found

a "dual purpose" and held that as long as there

was some valid administrative purpose and

motivation that the search will be allowed.

The case of United States v, Arra, 630 U.S.

836 (lst Cir. 1981), cited in the Villamonte :

decision is a good illustration of this type of

case where a strong administrative purpose

motivated by false claims of nationality from

the master, the lack of a flag, and the painting

over of the hailing port justified a document

check on the high seas despite a dual motiva-

tion of finding contraband. But this case did

not stand for the proposition that searches

conducted as administrative inspections could

not be found pretextural: in fact, the case

strongly criticized pretext searches citing the

Ninth Circuit case of Taglavore v. United

States, 291 F.2d 262 (9th Cir. 1961) which

authorized a factual examination of a search

to discover its "dominant purpose". Where the

purpose of a boarding is demonstrably to find

the fruits of a criminal enterprise (see

oporder references to "smuggling" and "merry

jane"), standards governing such searches must

be applied, Michigan v. Tyler, 436 U.S. 499, 508

(1978), Camara v. Municipal Court, 387 U.S.

523 (1967), Abel v. United States, 362 U.S.

217, 230 (1960), Sorrells v. United States, 287

435 (1932) and search warrants must be obtained,

Coolidge v. New Hampshire, 403 U.S. 443 (1971)

or, where excused (which, unlike automobile

cases, South Dakota v. Opperman, 428 U.S. 364

(1976) would not apply here since vessels,

unlike cars, are neither as mobile nor as

subject to a reduced expectation of privacy,

Since they frequently serve as "home to a

sailor at sea"), probable cause must be

demonstrated: in the present case, Wickstrom's

vague suspicions, which he could not articulate,

do not rise to the level of probable cause,

Sibron v. New York, 392 U.S. 40 (1968), Beck

v. Ohio, 379 U.S. 89 (1964), Henry v. United

States, 361 U.S. 98 (1959).

Thus the search cannot be justified under

administrative or criminal Fourth Amendment

standards and, this being the case, the

evidence seized thereby must be excluded,

Mapp v. Ohio, 367 U.S. 643 (1961).

THIS COURT SHOULD EXERCISE ITS POWER

OF SUPERVISION TO PREVENT THE COURT

OF APPEALS FROM SANTIONING THE

CONVICTION BASED UPON CLEARLY INSUF-

FICIENT EVIDENCE,

Even under Ninth Circuit standards, the con-

spiracy counts required proof of an agreement

rather than proof of mere casual association

with conspirators, United States v. Cloughessy,

572 U.S. 190 (9th Cir. 1977); the importation

charge required proof that material was brought

into the United States, 21 USC §95l(a); and

possession required proof of dominion and

control, United States v. White 463 F.2d 18.

Without proof that petitioner was present on

the REVERIE when it was boarded and seized,

this proof fails under even the extremely

liberal test of sufficiency, Jackson v. Vir-

ginia, 443 U.S. 307 (1979), accord United

States v. Federico, 658 F.2d 1337 (9thCir.

1981). The most the evidence in this case

shows is that petitioner might have been in

Costa Rica one month before the search with

no evidence of any marijuana being involved

at that time, due to entries in his passport

seized in the warrantless search in the harbor.

Equally strong evidence suggests the culpability

of third parties: that is, the ownership and

master's papers showing the names of persons

other than defendants. But the Court of Appeals

refused to consider the sufficiency of evidence

because the issue had not been raised below by

a motion for acquittal. Although the Ninth

Circuit seems to apply this rule, other circuits

do not: for example, in the Fifth Circuit it

has been held that

[T]here can be little or no need for

a formal acquittal motion for judgment

of acquittal in a criminal case tried

to a court without a jury upon the

defendant's plea of not guilty. The

plea of not guilty asks the court for

a motion of acquittal and a motion to

the same end is not necessary

Hall v. United States,

286 F.2d 676, 677 (5th Cir. 1961). Further,

even the cases cited in support of this

rule in the Ninth Cirucit do so only by

way of dictum because in every one of those

cases the court has actually gone on to find

on the issue of sufficiency before stating

the procedural rule. For example, in Lucas

v. United States, 325 F.2d 867, 868 (9th Cir.

1963) the Court applied the procedural rule

and held that the case did not require the

application of Rule 52b of the Federal Rules

of Criminal Procedure because recourse to the

transcript showed guilt beyond a reasonable

doubt. The reason for this seemingly incon-

Sistent analysis is that to allow a conviction

to stand, as in this case, on insufficient

evidence constitutes a miscarraige of justice

that undermines the integrity and reputation

of the judicial process under Rule 52B. In

this case this Court should exercise its

supervisory power to prevent such a result

from being sanctioned.

THIS COURT SHOULD EXERCISE ITS

POWER OF SUPERVISION TO PREVENT

A DEPARTURE BY THE COURT OF

APPEALS FROM ACCEPTED AND USUAL

JUDICIAL PROCEEDINGS BY FAILING

TO RULE ON ISSUES PRESENTED ON

APPEAL.

It should be the policy of the Court to

require that opinions of the Courts of

Appeal finally determine all issues

presented to them that are not moot (see

fn. 2. in United States v. Villamonte-

Marquez, U.S. (Feb. 23, 1983) (No.

81-1350) and dissent of Justice Brennan).

In the present case, two issues were

presented to the Court of Appeals that were not

decided. One was whether an administrative

warrant would be required for a boarding under

Fourth Amendment principles applying to admin-

istrative inspections. More siginficant,

however, was the issue of whether a warrant

was required for the clearly criminal

investigation of the REVERIE by the DEA in

the harbor which search produced the bulk

of the evidence including the passports,

without which the government's argument

on the sufficiency of evidence is even

weaker; and without the whole of which (the

samples of contraband, personal effects,

etc.) the government's entire case would

be in doubt on remand. This issue should

have been at least addressed by the Court of

Appeals and its failure to do so, so far

departs from the ordinary course of judicial

proceedings that this Court should exercise

it supervisory power to require such

consideration, or, alternately, should rule

on this issue itself and find the search ille-

gal.

CONCLUSION

For the foregoing reasons this petition for

a writ of certiorari should be granted.

Respectfully Submitted,

Phra Fate

PHILIPS ie PATTON, Counsel

for Petitioner THOMAS

HERRMANN

124 Locust Street

Santa Cruz, California

95060

(408) 423-7374

DATED: July 26, 1983

APPEND

BELOW

December 25, i951

I¥ A: OPINIONS WILLIAM L. WHITTAKER

CLERK, U.S. DISTRICT

COURT

NORTHERN DISTRICT

OF CALIFORNIA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Cr. 81 - 0018

Plaintiff,

Vv.

OPINION DENY-

ING MOTION TO

SUPPRESS

JAMES EAGON, GEORGE ENNIS,

THOMAS HERRMANN,

)

) MEMORANDUM OF

)

Defendants. )

)

This case came on for hearing on

defendants' motions to suppress certain

evidence seized by the Coast Guard in a

search of the vessel, Reverie. After

careful consideration of the pleadings,

briefs, and other evidence, the court

denies defendants' motions. The following

is a brief statement of the court's

reasons.

ee eee ee eee “+

- — ee

BACKGROUND

On December 5, 1980, the Commander of

the Coast Guard issued an Operation

Directive ("operations order") ordering

his boats to conduct twelve harbor blockade

searches between December 12, 1980 and

January 1, 1981. This operation, termed

"Operation Merry Jane", was intended to

promote blockades during the peak holiday

season in an effort to combat increased

smuggling activities. The directive

required that a minimum of one blockade was

to take place between the hours of 9:00 p.m.

and 5:00 a.m. at both Morro Bay and

Monterey Bay between December 25, 1980 and

January 1, 1981. The operations order also

contained instructions to (1) board all

vessels inbound which are 200 feet or less

in length, and (2) conduct documentation

checks with verification of main beam

number in lieu of safety boardings.

In accordance with the operations

ee eee ee

order, Officer David Wickstrom ("Wick-

strom") boarded Coast Guard ship 41367

("41367") on December 18, 1980 to conduct

a harbor blockade. Wickstrom, a Coast

Guard chief boatswain's mate and Chief

Petty Officer, has 14 years service in-

cluding experience in the detection of

narcotics smuggling, primarioy the area

of identification of marijuana.

The 41367 left Monterey at about

10:00 p.m. intending to rendezvous with

the Coast Guard Cutter Cape Wash ("Cape

Wash") near Moss Landing later that

evening. At about 10:45 the 41367

arrived at Moss Landing. Unable to

locate the Cape Wash, the 41367 pro-

ceeded north to Sante Cruz.

Between Monterey and Moss Landing

no other vessels had been sighted on radar.

The 41367 crew then sighted a large con-

tact that Wickstrom assumed was the Cape

Wash because of its size. Wickstrom

eee ee

felt his assumption was confirmed when

a smaller contact left the larger one.

Wickstrom initially thought that the

smaller contact had been boarded by

the Cape Wash.

The smaller contact headed toward Moss

Landing and came close enough to the 41367

that the two boats could recognize each

other. The smaller vessel then drastically

changed course.

The 41367 attempted a rendezvous with

what Wickstrom believed wasthe Cape Wash.

Wickstrom later determined, after getting

close enough to the larger vessel, that

it was not the Cape Wash.

The larger vessel had no lights on,

was not moving, and had its fenders

hanging over the side as though it had

just made contact with another vessel.

When visual contact with the larger

vessel was made, the lights on the

larger vessel, the Reverie, were switched

ee eee ee

on, and the vessel began to move slowly

shoreward.

Wickstrom suspected that the Reverie

might be carrying contraband. Wickstrom

and his crew stopped and boarded the

Reverie. After conducting a documen-

tation check, they noticed suspicious

materials through an open hatch. The

materials appeared to be bales with vege-

table materials near. Wickstrom checked

the materials and determined that it was

a large quantity of marijuana.

DISCUSSION

The defendants have raised numerous

fourth amendment objections to the board-

ing and subsequent seizure of the Reverie.

Defendants' basic argument is that the

initial operation to board constituted a

seizure, and the subsequent entry was an

illegal search. Defendants argue that the

government's intrusion was unreasonable

because there was no probable cause, no

search warrant, and no valid administrative

search or seizure which would excuse the

warrant requirement.

Defendants argue that the case at bar

is governed by United States v. Piner,

608 F. 2d 358 (9th Cir. 1979).

In Piner, the Coast Guard was cruising

the San Francisco Bay on a routine patrol

and decided to board the "Delphene". The

Coast Guard later stipulated that the only

purpose for stopping and boarding was for

"a routine safety inspection," that it was

done "on a random basis," and that "there

were no suspicious circumstances." Id.

at 359.

The Ninth Circuit held, in Piner, that

the random stop and boarding of a vessel by

the Coast Guard after dark without cause

to suspect noncompliance was not justified

by the government's need to enforce compli-

ance with safety regulations. Id. at 36l.

The court stated that a stop and boarding

after dard must either be based on cause,

requiring, at a minimum, a reasonable and

articulable suspicion of noncompliance,

or must be conducted according to adminis-

trative standards, carefully drafted to

avoid placing sole discretion in the Coast

Guard officer. sf

Here, the surrounding circumstances

gave rise to an articulable suspicion of

illegal activity on the Reverie. This

furnished Wickstrom with the necessary pro-

bable cause to stop airi board.

When the Reverie was first spotted on

radar, it was stationary about one mile

off shore. Shortly thereafter, a small

boat furtively left the side of the

Reverie. The small vessel recognized the

41367 as a Coast Guard vessel immediately

and drastically changed course.

The first visual contact the 41367 had

with the Reverie revealed that the Reverie

had no lights on and was not moving. More-

over, the fenders had been left hanging,

a strong indication that the Reverie and

the previously sighted small boat had been

in contact. The hanging fenders were also

indicative of poor seamanship.

One the 41367 moved close enough to be

recognized by the Reverie, the Reverie

switched on its lights and began moving

shoreward.

Wickstrom testified that, in his

training, open hatches, fenders left

hanging, and vessels having just left a

specific vessel are suspicious activities.

These suspicious circumstances pro-

vided sufficiently reasonable cause,

especially in the case of a Coast Guard

officer with over 14 years experience, to

justify the warrantless stop and boarding

of the Reverie.

The case at bar is further distinguish-

able from Piner in that the operations

order under which Wickstrom boarded the

Reverie conformed to the Piner require-

ment of carefully drafted administrative

standards. The operations order set forth

guidelines for conducting harbor blockades.

Unlike Piner, the order instructed Coast

Guard officers to board all vessels of

200 feet or less in length and to con-

duct documentation checks in lieu of

safety checks.

In addition to the operations order,

the Coast Guard Group Monterey scheduled

the required harbor blockades specifically

designating the dates, locations, and

officers to be involved. The December 18,

1980 horbor blockade was one of those

scheduled by the Coast Guard Group Monterey.

The stop of the Reverie was not at the

sole discretion of Wickstrom. Every action

taken in connection with the stop and

boarding was pursuant to the carefully

drafted operations order and Coast Guard

Group Monterey schedule.

For reasons stated, defendants'

motions to suppress are denied.

IT IS SO ORDERED.

Dated: 23 DEC 1981

UNITED STATES DISTRICT COURT JUDGE

FOOTNOTE - U.S.A. v. James Eagon, et al.,

CR 81-0018 SW

Judge Kennedy dissented noting that

the Piner rule was contrary to that

in most circuits which permit random

stops for safety inspections and

searches. See United States v.

Postal, 589 F.2d 862, 889 (Sth Cir.

1979).

FILED

NOV 22 1982

PHILLIP B. WINBERRY

CLERK,U.S. COURT

OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

83-1031

)

Plaintiff-Appellee, )NOS. 82-1030,

)

) and 82-1083

vs.

)

JAMES EAGON, GEORGE ENNIS, )USDC NOS. 81-

THOMAS HERRMANN, ) 018-1 (Eagon) 81-

_ )018-2 (Ennis) and

Defendants-Appellants.) 81-018-3 (Herr-

) mann)

)

)OPINION

Appeal from the United States Dis-

trict Court for the Northern

District of California Hon.

Spencer Williams, Presiding

Argued and Submitted: October 12,1982

Before: MERRILL and BOOCHEVER, Circuit

Judges and SMITH*, District Judge.

MERRILL, Circuit Judge:

Following a stipulated facts

trial, appellants were found guilty of

four counts of drug offenses in violation

of 21 U.S.C. §§ 846, 941(a) (1), 952(a)

and 963. On this appeal they challenge

an order denying their motion to suppress

marijuana and certain documents seized

as a result of a warrantless search and

the introduction of those items into evi-

dence. At issue is the right of the Coast

Guard without warrant to board a vessel at

night for safety and document inspection,

pursuant to an administrative plan, without

founded suspicion of a violation of regu-

lations.

On December 5, 1980 an operations

order was issued by the Coast Guard

Commander of the Twelfth Coast Guard Dis-

trict which set up a schedule of harbor

blockades designating the dates, locations

f and officers to be involved. The order

noted that "smuggling activity increases

during the holiday season" and required

that enforcement patrols be conducted

looking to enforcement of document and

safety regulations, apparently pursuant

to the Coast Guard regulation on marine

document production, 46 C.F.R. § 67.73-1.

(1980). The operation's code name was

"Merry Jane", a slang term for marijuana.

The Monterey Group was directed to

conduct 12 blockades including blockades

at Morro Bay and Monterey Bay between

December 12, 1980 and January 12, 1981 be-

tween the hours of 9:00 p.m. and 5:00 a.m.

during which the Coast Guard group was

to board all shore-bound vessels 200

feet in length or less. One of the

scheduled blockades was set for December 18,

1980 with Chief Petty Officer David Wick-

strom named as primary boarding officer

in command of Coast Guard Vessel 41367,

a 41 foot Coast Guard patrol boat with a

four-man crew.

At about 10:45 p.m. on December 18,

Wickstrom and the 41367 proceeded to Moss

Landing on the California Coast to

rendezvous with another Coast Guard vessel,

the Cape Wash. Wickstrom failed to locate

ee , — anes eee _-

—- .

it and headed north. Proceeding towards

Santa Cruz, the crew noticed on its radar

a “large contact" which Wickstrom assumed

to be the Cape Wash. The radar then

showed a smaller contact or "blip"

leaving the larger one, which Wickstrom

assumed was a smaller vessel which had

been boarded by the Cape Wash. The 41367

soon sighted the smaller craft which

then changed course dramatically. The

41367 continued toward the larger vessel

and discovered that it was not the Cape

Wash but a sailing vessel, the Reverie.

When first sighted its lights were not

turned on and it was sationary, but as

41367 approached the Reverie turned on it

lights and began to move shoreward. The

41367 manuevered alongside the Reverie.

Wickstrom noted that its fenders were

hanging over the side and that its hatche

were open. The crews of the two vessels

engaged in some casual conversation in

which one of the three members of the

Reverie crew indicated that they were

having some clutch problems and were

heading for Morro Bay. The 41367's cox-

swain then directed the Reverie to "heave

to and prepare to be boarded." Wickstrom

testified that his only purpose in

boarding was to verify the vessel's

compliance with safety and document regu-

lations pursuant to the operations order. 2/

After boarding, Wickstrom could see

through an open hatch several bales wrapped

in burlap with vegetable matter portruding.

He then summon the Cape Wash and upon its

arrival the Reverie crew was taken aboard.

The Reverie was towed into Monterey. Coast

Guard officers conducted an inspection in

the course of which approximately 4,000

pounds of marijuana was found. They also

found passports of the three appellants, a

receipt for the marijuana, and ownership

documents of the Reverie. Appellants were

placed under arrest.

Before the District Court, appellants

——— ee ee ee

unsuccessfully sought to supprews the mari-

juana and documents found on the Reverie.

II.

On this appeal, appellants contend

that under this court's holding in United

States v. Piner, 608 F2d 358 (9th Cir. 1979),

the motion to suppress should have been

granted because a warrantless boarding and

search of a vessel by the Coast Guard after

dark constitutes a violation of the Fourth

Amendment in absence of probable cause to

suppose a violation of law. We agree with

the District Court that Piner does not

apply.

Piner involved a random stop of a

pleasure vessel at night in San Francisco

Bay. The sole purpose had been to ascertain

and discourage noncompliance with safety

regulations. There was nothing about the

stopped vessel to suggest noncompliance.

It was the random character of the

Piner stop that most concerned us. In

Delaware v. Prouse, 440 U.S. 648, 661

ee ae Oe

(1979), on which we relied in Piner, the

Court had spoken strongly on the subject.

The Court htere dealt with random stops of

motor vehicles for spot checks of regis-

tration and licensing. It stated that

without reasonable suspicion of violation

"we cannot conceive of any legitimate basis

upon which a patrolman could decide that

stopping a particular driver for a spot

check would be more productive than stopping

any other driver. This kind of standardless

and unconstrained discretion is the evil

the Court has discerned when in previous

cases it has insisted that the discretion

of the official in the field be circum-

scribed, at least to some extent." Id.

(citations omitted).

The Government in Piner strongly

defended random spot checks, arguing that

the practice served as an alternative to

the stopping of all pleasure vessels and

that without the random and unexpected

character of the stop, much of its

effectiveness as a discouragement of non-

compliance would be lost. The Government

asserted that:

[R]andom stops are the

only practicable means of

ascertaining pleasure craft

compliance with safety regu-

lations, * * * * (Wjithout

authority to conduct random

stops the congressional

purpose of maritime safety

will, in the case of pleasure

craft, be frustrated.

608 F.2d at 361.

We noted the usefulness of the ran-

dom spot check but felt that that useful-

ness could be accomplished by a less

intrusive exercise of the practice. We

stated:

If the purpose of the

random stop is to ascertain

and discourage noncompliance

with safety regulations, we

see no reason why this purpose

cannot sufficiently be

accomplished during the

daylight hours.

Id. We held:

2% stop and boarding after

dark must be for cause,

requiring at least a reason-

able and articulable suspi-

cion of noncompliance, or

must be conducted under

administrative standards

so drafted that the decision

to search is not left to

the sole discretion of

the Coast Guard officer.

The fact that the stop and boarding

in this case was not random but was

pursuant to an operations order completely

distinguishes Piner. United States v.

Watson, 678 F.2d 765, 773 (9th Cir. 1982).

Here Wickstrom had no choice under the

order to but to board the Reverie. As

in Watson "the stop did not involve an

exercise of discretion by an officer in

the field but instead was conducted pur-

suant to an administrative plan." Id.

at 773. There was no feasible less

instrusive means f complying with the

order because it was explicitly directed

at this vessel. 2/

Appellants contend that verification

of documents and safety compliance was a

pretext for a criminal investigative search.

They point to the order's reference to

smuggling activities and the name given

to the operation. The same contention

was advanced and rejected in Watson. There

we stated:

We assume that the adminis-

trative plan which led to the

stop of the GLOBE TROTTER

was motivated partly by

suspicion of drug smuggling.

However, the stop and search

Id at 771.

States v.

had an independent adminis-

trative justification, and

did not exceed in scope what

was permissible under that

administrative justification.

Therefore, we need not consider

any criminal enforcement in-

terest the Coast Guard may have

had.

To the same effect is United

Arra, 630 F.2d 836 (lst Cir.

1980), where the court stated:

- « « We would see little

logic in sanctioning such

examinations of ordinary,

unsuspect vessels but for-

bedding them in the case

of suspected smugglers.

Id. at 846.

Iil.

For the first time on appeal,

appellants contend that the record does

not support conviction since the stipula-

tion of facts does not explicitly state

that the three appellants constituted

the Reverie's crew and were present on

board when the vessel was boarded. The

appellants made no objection to the

sufficiency of the evidence below and this

contention will not be entertained here.

United States v. Veon, 474 F.2da 1, 3 (9th

Cir. 1973); United States v. Perdue, 469,

F.2d 1195, 1203 (9th Cir. 1972).

JUDGMENT AFFIRMED.

FOOTNOTES

% Honorable Russell E. Smith, Senior

District Judge, United States District

Court for the District of Montana, sitting

by designation.

1/ Wickstrom noted several suspicious

circumstances suggesting illegal activity

aboard the Reverie: it initially was

stationary and unlighted, but began to

move shoreward and turned on its lights

soon after the sighting; its fenders were

over the side; its hatches were left open;

and a smaller vessel which had just left

the Reverie suddenly changed course.

Because we hold that the search was con-

ducted under administrative standards

which removed Wickstrom's discretion in

deciding whether to search, however, we

need not decide whether these suspicious

circumstances constituted "a reasonable and

articulable suspicion of noncompliance. . ."

+o <2 are eee + eee eames + as ae oe os

United States v. Piner, 608 F.2d 358, 361

(9th Cir. 1979).

2/ We note that in most maritime cases

it would not be feasible to establish a

less intrusive means by use of checkpoints

such as those used for stops of motor

vehicles. Although we discuss motor

vehicle stops, by way of analogy, our

discussion is not intended to comment on

the legality of roving road stops.

3/ We may also note, as administrative

justification for the order in our case,

that an increase in the presence of non-

complying vessels may well follow from an

increase in smuggling, because a vessel

engaged in smuggling would seem a better

than random choice for noncompliance.

OPINION FILED: NOVEMBER 22, 1982

FILED

APR 12 1983

PHILLIP B. WINBERRY

CLERK,U.S. COURT OF

APPEALS

United States v. Eagon, Nos. 82-1030,82-

1083 & 82-1031

BOOCHEVER, Circuit Judge, concurring:

I believe that Judge Merrill's opinion

is in accord with our decisions in United

States v. Piner, 608 F.2d 358 (1979), and

United States v. Watson, 678 F.2d 765 (9th

Cir.), cert. denied, 51 U.S.L.W. 3419

(1982). In Piner, we concluded that a stop

after dark must be for cause and added the

dictum that the boarding "must be conducted

under administrative standards so drafted

that the decision to search is not left to

the sole discretion of the Coast Guard

officer." 608 F.2d at 361. Here, we

are confronted with an administrative

order removing discretion.

It is contended that the document in-

spection might be considered a pretext, as

one of the purposes of the administrative

order as indicated by its code name of

"Merry Jane" was an attempt to interdict

the traffic of marijuana into the United

States. That contention has been answered

by Watson, which holds that even if a

purpose of the boarding is to stop

smuggling it is permissible if the stop

and search had an "independent adminis-

trative justification, and did not exceed

in scope waht was permissible under that

administrative justification." 678 F.2d

at 761.

We should therefor look to the scope

of the boarding activity under the parti-

cular circumstances involved. Those living

on their boats have a greater expectation

of privacy at night. See United States v.

Piner, 608 F.2d 358 (9th Cir. 1979). The

boarding in this case, however, involved no

invasion of sleeping quarters. Wickstrom,

in charge of the boarding party of two,

testified that the only purpose of the

boarding was to verify the vessel's

compliance with safety and document regu-

lations. Once aboard, the officers did

not appreciable move from their positions

on deck. They asked the master to retrieve

the documentation papers from the cabin and

did not enter it themselves. The marijuana

which was seized was seen in plain view from

the officers' positions above deck. The

boarding, itself, involved no intrusion in-

to the living quarters of the Reverie crew.

As was stated in United States v.

Steifel, 665 F.2d 414 (2d Cir. 1981), there

» » « no basis for denying

the government the use of

investigatory stops at sea

in the fact that many vessels

include living quarters for

their owners or their crew.

While one has a more legiti-

mate expectation of privacy

in one's living quarters than

in other areas, this expecta-

tion has greater relevance to

the scope of a search than to

the intrusiveness of a stop.

— + ee eee eee 6 ee . as ces cumEe au+eue

665 F.2d at 423.

I would confine our holding to the

facts of this case, leaving for another day

a decision as to whether a more intrusive

search could be performed at night.

I also concur in the result for

another reason. The facts justifying the

stop are adequately summarized in footnote

1 of the opinion. Under those circumstances

I believe that the boarding was justified

under Terry v. Ohio, 392 U.S. 1 (1968), as

based on reasonable suspicion.

ee ee

APPENDIX B: DISTRICT COURT JUDGMENT AND ORDER RE

REHEARING

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF

CALIFORNIA

United States of America vs.

Defendant - THOMAS HERRMANN, Docket No.

Cr 81-0018 SW

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for

° the government the defendant appeared

in person on this date -- Mo. Day Yr.

. 2

__ Without Counsel In San Jose, CA

However the court advised

defendant of right to counsel

and asked whether defendant

desired to have counsel

appointed by the court and the

defendant thereupon waived

assistance of counsel.

_XX With Counsel = BARNEY EDLERS, ESO.

___ Guilty, and the — Nolo Contendere XXNot Guilty

court being

satisfied that

there is a factual

basis for the plea.

oa Not. Guilty.

There being a finding/¥erdiZe of — 1 ¢ jant is

discharged.

_XX Guilty.

Defendant has been convicted as charged of the

offense(s) of violation of Title 21 U.S.C.,

Sections 952(a); 963; 841(a); 846 - Importation of

a Controlled Substance; Conspiracy to Import a

Controlled Substance; Possession with Intent to

Distribute a Controlled Substance; Conspiracy to

Possess with Intent to Distribute a controlled

Substance.

The court asked whether defendant had anything to say

why judgment should not be pronounced. Because no

sufficient cause to the contrary was shown, or

appeared to the court, the court adjudged the defen-

dant guilty as charged and convicted and ordered that:

The defendant hereby committed to the custody of the

Attorney General or his authorized representative

for imprisonment for a period of

two (2) years as to each of counts One, Two,

Three, and Four; that sentence on said counts

shall runn concurrently; that a special

period of parole of two years of parole is

imposed.

IT IS FURTHER ORDERED that execution of sentence is

stayed pending appeal.

ORIGINAL

FILED

FEB 8 1982

CLERK, U.S. DISTRICT

COURT

NORTHERN DISTRICT OF

CALIFORNIA

SAN JOSE

In addition to the special condition of probabtion

imposed above, it is hereby ordered that the general

conditions of probation set out on the reverse side

of this judgment be imposed. The Court may change

the conditions of probation, reduce or extend the

period of probation, at any time during the probation

period or within a maximm probation period of five

years permitted by law, may issue a warrant and re-

voke probation for a violation occurring during the

probation period.

The court orders cammitment to the custody of the

Attorney General and recommends,

It is ordered that the Clerk

deliver a certified copy of this

judgment and cammitment to the

U.S. Marshal or other qualified

officer.

CERTIFIED AS A TRUE COPY ON

THIS DATE 2-8-82

By /s/ Pascal C. Rellur

Signed by ( ) Clerk

X U.S. District Judge ( ) Deputy

U.S. Magistrate

/s/ Spencer Williams

CC - USM. Prob. AUSA, DEFT. Date 2-8-82

Gees 4eeGD esetmeqnss eens eee

FILED

JUN 3 1983

PHILLIP B. WINBERRY

CLERK,U.S. COURT

OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Nos. 82-1030,

Plaintiff-Appellee, 82-1031,

and 82-

vs. 1083

JAMES EASON, GEORGE ENNIS, (N.D. California)

THOMAS HERRMANN,

ORDER

Defendants-Appellants.

ee ee ee

Before: MERRILL and BOOCHEVER, Circuit

Judges, and SMITH*, District Judge

The panel as constituted in the above

case has voted to deny the petition for re-

hearing.

The full court was advised of the

suggestion for en banc rehearing; a re-

quest was made that a vote be taken on the

suggestion; and the court determined not

to take the case en banc. Fed. R. App. P.

35(b).

The petition for rehearing is denied

and the suggestion for rehearing en banc

is rejected.

Honorable Russell E. Smith, Senior

’ District Judge, United States District

Court for the District of Montant, sitting

by designation.

APPENDIX C: STATUTE INVOLVED

14 USC § 89 provides:

(a) The Coast Guard may make inquires

examinations, inspections, searches,

seizures, and arrests upon the high seas

and waters over which the United States

has jurisdiction, for the prevention,

detection, and supression of violations

of the laws of the United States. For

such purposes, commisioned, warrant, and

petty officers may at any time go on

board of any vessel subject to the

jurisdiction, or to the operation of

any law, of the United States, address

inquiries to those on board, examine the

ship's documents and papers, and examine,

inspect and search the vessel and use all

necessary force to compel.compliance. When

from such inquiries, examination, inspec-

tion, or search it appears that a breach

of the laws of the United States rendering

a person liable to arrest is being, or

has been committed, by any person, such

person shall be arrested or, if escaping

to shore, shall be immediately pursued

and arrested on shore, or other lawful and

appropriate action shall be taken; or, if

it shall appear that a breach of the laws

of the United States has been committed so

as to render such vessel, or the merchandise

, OY any part thereof, on board of, or

brought into the United States by, such

vessel, liable to forfeiture, or so as to

render such vessel liable to a fine or

penalty and if necessary to secure such fine

Or penalty, such vessel or such merchandise,

or both, shall be seized.

(b) The officers of the Coast Guard insofar

as they are engaged, pursuant to the author-

ity contained in this section, in enforcing

any law of the United States shall:

(1) be deemed to be acting as agents of the

64A

particular executive department or

indepenaent establishment charged with

the administration of the particular law;

and

(2) be subject to all the rules and regu-

lations promulgated by such department or

independent establishment with respect to

the enforcement of that law.

in addition to any powers conferred by law

upon such officers, and not in limitation of

any powers conferred by law upon such

officers, or any other officers of the

United States.

64B

Aft SSN LAMA lL, VFSBNALLUNGS UNUENR

DEPARTMENT OF TRANSPORTATION

UNITED STATES COAST GUARD

Commander (0)

Twelfth Coast

Guard District

630 Sansome Street

San Francisco, CA

94126

16232

5 December 1980

From: Commander, Twelfth Coast Guard

District

To: Commander, Coast Guard Group Monterey

Subj: Law Enforcement Patrol, Operation

Merry Javie

Ref: (a) COMPACAREA OPORD 201-80 Annex J

1. Past intelligence indicates smuggling

activity increases during the holiday season.

It is anticipated and recent intelligence in-

dicates that this holiday season will not

be an exception.

2. Conduct general law enforcement patrol

in accordance with reference (a) modified

as follows:

a. Patrol Areas:

(1) Conduct a total of twelve

random harbor blockades of your area to in-

clude Morro Bay and Monterey Bay from 12

December 1980 to 12 January 1981 between

the hours of 2100 and 0500, utilizing WPB's

and/or patrol boats, as you deem appropriate.

(2) Dates and locations are left

to the discretion of Group Commander.

65A

——— a eee ee ——— <a a

(3) A minimum of one blockade is to

conducted at each location between 25

December 1980 and 1 January 1981.

b. Communications:

(1) A primary and secondary fre-

quency are to be assigned by Group. All

voice traffic is to be kept to a minimum.

c. Reports:

(a) Notify CCGDTWELVE (o0i1)/

(rcc) prior to patrol of date and loca-

tion harbor block will be initiated by

message. Complete sigting reports are re-

quired at end of patrol.

(2) Report all suspicious activity

to the Group. EPIC checks may be con-

ducted as deemed appropriate through Group.

dad. Boarding Instructions:

(1) Board all vessels inbound which

are 200 feet or less inlength.

(2) Documentation checks with

verification of main beam number may be

conducted in lieu of safety boardings.

65B

16232

5 December 1980

Subj: Law Enforcement Patrol, Operation

Merry Jane

e. SAR:

(1) SAR response will be directed by

the Group.

3. Notify CCGDTWELVE (0il)/(rcec) of adverse

weather, mechanical difficulties or other

circumstances requiring adjustments to this

OPORD.

4. Comments regarding this operation as

well as suggestions for improvement of

future operations are desired.

/s/ 3.A. McDonough, Jr.

J.A. MCDONOUGH, Jr.

By direction

Copy to:

COMPACAREA (Pol) :

CCGDTWELVE (oil) (rcc)

FOR OFFICIAL USE ONLY

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.