Opposition Brief — Purvis v. United States

Supreme Court, U.S,

FILED

No. 85-850 (7/ JAN 21 1986

JOSEPH F. SPANIOL, JR,

CLERK

Inu the Supreme Court of the Hnited States

OcToBER TERM, 1985

GEORGE KIRK PURVIS AND

BARBARA JEAN SOLOMOS, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

BEST AVAILABLE COPY 1%

TABLE OF AUTHORITIES

Page

Cases:

Delaware v. Prouse, 440 SA er 4

Maryland v. Macon, No. 84-778

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United States v. Arra, 630 F.2d 836 ............ 5

United States v. Cilley, No. 84-5199

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United States v. Eagon, 707 F.2d 362,

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United States v. Green, 671 F.2d 46,

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United States v. Piner, 608 F.2d 358 ........... 4

United States v. Pinto- Mejia, 720 F.2d 248,

modified on rehearing, 728 F.2d 142 .......... 5

United States v. Pringle,

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United States v. Streiful, 665 F.2d 414 .......... 4

United States v. Villamonte- Marquez,

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United States v. Watson, 678 F.2d 765,

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In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

No. 85-850

GEORGE KIRK PURVIS AND

BARBARA JEAN SOLOMOS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioners contend that the stopping and boarding of

their vessel on the high seas by Coast Guard officers vio-

lated the Fourth Amendment.

1. After waiving their right to a jury and consenting to

trial on the record of the previously-held suppression hear-

ing, petitioners were convicted in the United States District

Court for the Southern District of Florida of possessing

marijuana with intent to distribute while aboard a United

States vessel on the high seas, in violation of 21 U.S.C.

955e{a). Pet. App. 1-2. Each petitioner was sentenced to 30

months’ imprisonment, to be followed by a three-year spe-

cial parole term. The court of appeals affirmed (Pet. App.

i-12).

(1)

2

During the early morning hours of June 15, 1984, the

Coast Guard cutter Valiant came upon the United States

flag vessei Pride on the high seas in the Yucatan Channel

approximately 100 miles north of the Yucatan Peninsula

(Tr. 7-8).' The Valiant attempted to communicate with the

Pride by radio but received no response (Tr. 10). Later, ax

individual aboard the Pride returned the Coast Guard’s

transmissions and informed the Coast Guard that the

Pride’s homeport was Beaumont, Texas, and that the vesse’

was sailing from Cozumel, Mexico, to Alabama (Tr. 8).

At approximately 1:00 a.m., a boarding party was dis-

patched from the Valiant to conduct a document and safety

inspection and to determine if the Pride was in compliance

with all applicable federal laws (Tr. 101). While the Valiant

initially circled the Pride, the Coast Guard boarding party

noticed that the Pride’s registration numbers were impror

erly displayed (Tr. 13-14, 88), As the boarding party came

directly alongside the Pride, the officers detected a strong

odor of marijuana (Tr. 88). Once aboard the vessel, the

Coast Guard officers observed in plain view green plastic-

wrapped bales of marijuana stacked about four feet high

(Tr. 89-90).

Petitioner Purvis identified himself to the boarding party

as the Pride’s captain and produced the vessel’s documenta-

tion, which indicated that the vessel was registered in Texas

(Tr. 24). After petitioners were arrested, the boarding party

completed the safety and documentation check throughout

the communal and working areas of the Pride (Tr. 28,

101-102). During the course of the inspection, the officers

found additional marijuana hidden under the seats in the

cockpit (Tr. 21).

“Tr.” refers to the transcript of the suppression hearing, contained in

Volume III of the Record on Appeal.

3

2. Petitioners contend that the stopping and boarding of

the Pride violated the Fourth Amendment because the

Coast Guard lacked probable cause or a reasonable suspi-

cion of ongoing criminal activity.? However, the decision of

the court of appeals is correct, there is no conflict among the

circuits on this issue, and this Court has consistently denied

petitions presenting the issue raised here. See, e.g., United

States v. Watson, 678 F.2d 765 (9th Cir.), cert. denied, 459

U.S. 1038 (1982); United States v. Green, 671 F.2d 46 (Ist

Cir.), cert. denied, 457 U.S. 1135 (1982). Accordingly,

review by this Court is unwarranted.

Under 14 U.S.C. 8%a), the Coast Guard “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.” The stop

and boarding in this case was fully authorized by that

statute. The Pride was registered in the United States (Pet.

App. 4), and, contrary to petitioners’ claim (Pet. 7, 18-19),

the evidence indicated that the stopping and boarding was

conducted for the purpose of determining if the Pride was in

compliance with all applicable federal laws, including those

pertaining to documentation and safety. Petty Officer

Royce, a member of the boarding party, offered undisputed

testimony to that effect (Tr. 101). Moreover, in United

States v. Villamonte-Marquez, 462 U.S. 579 (1983), this

Court held that Customs officials may board a vessel on

inland waters under a similar provision, 19 U.S.C. 1581(a),

without any suspicion of wrongdoing in order to conduct a

document inspection and also ruled that such a boarding is

Petitioners concede (Pet. 18 n.2) that the marijuana found aboard

the Pride was lawfully seized if the initial stop and boarding were

proper.

4

reasonable under the Fourth Amendment. The decision in

Villamonte- Marquez clearly dooms petitioners’ claim

here.? ;

Petitioners erroneously assert (Pet. 11-14) that the court

of appeals’ decision conflicts with United States v. Piner,

608 F.2d 358 (9th Cir. 1979). In Piner, the court held that

the suspicionless boarding of a vessel for the purpose of

conducting a safety and documentation check could be

conducted only during daylight hours. But see United

States v. Eagon, 707 F.2d 362, 364-365 (9th Cir. 1982), cert.

denied, 464 U.S. 991 (1983) (upholding suspicionless night-

time boarding of vessel, pursuant to administrative plan,

for safety and documentation check); United States v.

Watson, supra (same). However, Piner was decided before

Villamonte- Marquez and relied upon decicions involving

automobile stops, such as Delaware v. Prouse, 440 U.S.

648 (1979). See 608 F.2d at 361. Villamonte-Marquez

rejected the analogy to those cases (see 462 U.S. at 588-

589). and the Ninth Circuit has since ruled that the Coast

Guard may stop and board vessels on the high seas in the

absence of any suspicion of criminal activity for the purpose

of conducting a document or safety inspection. See United

States v. Cilley, No. 84-5199 (9th Cir. Dec. 20, 1985), slip

op. 6-11.‘

‘It is immaterial that the officers may have stopped the vessel in part

because they suspected drug smuggling, so long as they were entitled to

conduct a documentation and safety check and did not act in excess of

that authority until justified in doing so. See Villamonte- Marquez, 462

U.S. at 584 n.3; see also Maryland v. Macon, No. 84-778 (June 17,

1985), slip op. 7.

‘Nor does the court of appeals’ decision here conflict with United

States v. Streifel, 665 F.2d 414 (2d Cir. 1981), or United States v.

Pringle, 751 F.2d 419 (ist Cir. 1984). Streifel was decided prior to

Villamonte- Marquez, and the court upheld the stop and boarding of a

vessel on the ground that there was a reasonable suspicion of ongoing

criminal activity. 665 F.2d at 424-425. Although, the court stated that

the Coast Guard must have a reasonable suspicion before stopping and

5

Moreover, at the time the Coast Guard officers in this

case actually boarded the Pride, they had a reasonable

suspicion that it held narcotics and that federal navigation

laws were also being violated. The record shows that, upon

circling and approaching the Pride, the members of the

boarding party noticed that its registration numbers were

improperly displayed, and one member detected a strong

odor of marijuana (Tr. 13, 88). Accordingly, even if the

initial stop could not be justified on this basis and can be

justified only on the basis of 14 U.S.C. 8%a), the actual

boarding of the vessel was justified on ihe basis of a reason-

able suspicion.

boarding a vessel to conduct a search for narcotics (id. at 419-423), the

court expressly reserved the issue of whether such a suspicion is also

necessary to conduct an administrative search, such as a safety and

documentation check (id. at 420 n.8). Accordingly, Streifel did not

resolve the issue presented here. The Second Circuit has also not

decided this question since Streifel. See United States v. Pinto- Mejia,

720 F.2d 248, 262 (1983), modified on rehearing, 728 F.2d 142 (2d Cir.

1984) (stop and boarding justified on the basis of a reasonable suspi-

cion). In Pringle, the court stated in dictum that a reasonable suspicion

is necessary to stop and board a vessel in order to investigate criminal

activity, but the court held that the Coast Guard may stop and board a

vessel under !4 U.S.C. 8%a) in the absence of any suspicion of criminal

conduct in order to conduct a safety and document inspection (751 F.2d

| at 424). Accord United States v. Arra, € > F.2d 836, 841-842 (Ist Cir.

1980).

1 ee

6

it is therefore respectfuliy submitted that the petition for

a writ of certiorari should be denied.

CHARLES FRIED

Solicitor General

JANUARY 1986

DO]J-1 986-01