# Opposition Brief — Purvis v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1065%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 475 U.S. 1011 ## Text 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 i ai eben wn eee eee anne es 6.0 0% 4 United States v. Arra, 630 F.2d 836 ............ 5 United States v. Cilley, No. 84-5199 sca chasncbesecesovecee 4 United States v. Eagon, 707 F.2d 362, ae a” 4 United States v. Green, 671 F.2d 46, Ue, Cee, GPE Ce. FES neces cc ccccccecees 3 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, ee ee Lave ek a ckanee 4,5 United States v. Streiful, 665 F.2d 414 .......... 4 United States v. Villamonte- Marquez, ne ee ae wanes 3,4 United States v. Watson, 678 F.2d 765, eee, Gm, Ge U.S. FOSS cc ccc ecceces 3,4 Constitution and statutes: RE ee re La¢ lL og eee eT eee eee reer eee : IN ca ghuanen Se akeesessetnwvaeee 3 Es, EE ccc ecagadaknkawddessdeataseas | 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1065%3A2. Public record. Not legal advice.