U.S. v. Freeman, 75-3909

• Decision Date: 11 September 1978
• Docket Number: No. 75-3909,75-3909
• Citation: 579 F.2d 942
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Braxton Lake FREEMAN, Lawrence John Graham, Peter Martell, a/k/a Pita, a/k/a Peter, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 942

579 F.2d 942

UNITED STATES of America, Plaintiff-Appellant, v. Braxton Lake FREEMAN, Lawrence John Graham, Peter Martell, a/k/a Pita, a/k/a Peter, Defendant-Appellee.

No. 75-3909.

United States Court of Appeals,

Fifth Circuit.

Sept. 11, 1978.

Robert W. Rust, U. S. Atty., Rebekah J. Poston, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellant.

Pearson & Josefsberg, Daniel S. Pearson, Bruce S. Rogow, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, TUTTLE and TJOFLAT, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This case brings before this Court the increasingly vexatious difficulties created by man's quest for quick riches through smuggling. While on a routine patrol off the Florida coast, United States Customs Officers caught defendant Freeman with his hand on the rudder illegally attempting to bring aliens into the United States. ¹ During the suppression hearing in the District Court, defendant Freeman contended that the Customs Officers violated the sanctity of the Fourth Amendment's prohibition against unreasonable searches and seizures and the trial judge agreed. Pursuant to 18 U.S.C. § 3731, the United States Government appeals the District Court's order granting the suppression motion. Recognizing the congressionally created, judicially approved, and constitutionally firm power of Customs Officers to board vessels within customs waters for the purpose of checking papers and documents, we reverse.

On April 30, 1975, a clear day with calm winds, Customs personnel on Customs Vessel 38116 (Vessel 38116) were patrolling the waters off southern Florida. Shortly after 8:00 a. m., Vessel 38116 approached the Miami sea buoy, located approximately three nautical miles offshore. At that time Customs personnel sighted on the horizon to the northeast the mast of the Topographic Oceans, a 37 foot Irwin sailboat. From its position near the Miami sea buoy, Vessel 38116 headed in a northerly direction. Customs Officers continuously followed for thirty to forty-five minutes the Topographic Oceans course from the west ² toward the Florida coastline. When the Customs personnel made the initial sighting the Topographic Oceans was well beyond the three mile territorial limit.

Shortly before 9 a. m., Vessel 38116 intercepted the Topographic Oceans 2.8 miles off the Florida coast directly east of Bakers Haulover Inlet. ³ Once alongside, the Customs personnel inquired about the Topographic Oceans's last port of call. The only individuals on deck, defendants Freeman and Graham, both replied "West Palm Beach." After consulting among themselves, the Customs Officers decided to board the Topographic Oceans. They based their decision on the following considerations: (i) the Topographic Oceans, a sailboat, was heading in a westerly direction, (ii) the Topographic Oceans was crossing the Gulfstream which travels north, (iii) a similar vessel from West Palm Beach would normally travel south closer to the shoreline to avoid the Gulfstream, (iv) the time of the day, and (v) the presence on deck of two middle-aged men and the apparent absence of wives or other family members. The Customs Officers reasoned that it was illogical for such a sailing vessel supposedly traveling from West Palm Beach to sail north to south against the northern flow of the Gulfstream. Instead, the passage would be closer to the shore out of the Gulfstream's influence.

As Customs Officers Sutton and McBride boarded the Topographic Oceans, Officer Sutton asked Freeman who was the vessel's master. Freeman responded that Graham, then on the bow of the boat, was the master. After Graham came from the bow of the vessel to the boarding party's location, Officer Sutton requested the vessel's documents. Graham indicated that his wife had placed them someplace below deck. Almost simultaneously with the receipt of this response, while standing on the deck, Customs Officer McBride glanced down through a wide-open door (hatch) to ascertain that no one with weapons was lurking below. He saw a woman holding a baby hiding in one corner and another woman hiding under a table.

This behavior aroused his suspicion and McBride proceeded down into the vessel. McBride also stated that he proceeded down the hatch to assure that no one with weapons was hiding. In the forward section of the sailboat McBride discovered a group of black men, women, and babies who, upon later investigation, were determined to be Haitian refugees. Subsequently, both defendants were "read their rights" and escorted along with the Topographic Oceans to the Coast Guard base in Miami.

At the suppression hearing the defense placed an expert witness on the stand who testified that anyone viewing the Topographic Oceans for less than half an hour could not draw a conclusion about its point of origin or its destination. The expert opined that any travel of a sailboat in the area observed by the Customs agents was consistent with "ordinary, normal, prudent seamanship coming from Palm Beach to Miami." The expert conceded, however, that the general direction of the vessel could have been discerned by the Customs Officers. Finally, he agreed that when first sighted by Customs officials, the Topographic Oceans was at least six miles from the Florida coast.

In granting Freeman's motion to suppress, the District Court made several rulings. First, the Court found that the search was not a border search. Alternatively, the Court ruled that even if the search was a border search, there existed no reasonable suspicion to stop the vessel and conduct a search. Finally, the Court ruled that the mere observation of a vessel crossing the three mile limit, standing alone, did not invoke the authority to search under the customs statute, 19 U.S.C. § 1581.

On appeal the Government seriously presses two arguments. First, the Government contends that the search was justified as a border search. Second, the Government argues that the search was a statutorily authorized customs search of a newly arrived vessel under § 1581.

In determining whether the Customs agents acted in a constitutionally acceptable manner we divide our analysis into two phases. First we examine the statutory and constitutional authority for the stop of the Topographic Oceans. Next, upon finding that the stop was constitutional, we inquire about the constitutionality of the search.

Shipshape Statutory Authority

Through the enactment of 19 U.S.C. § 1581(a), Congress authorized Customs agents to stop vessels in Customs waters for the purpose of examining the vessel's manifest, documents and papers. Section 1581(a) explicitly provides that:

Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters . . . and Examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle and use all necessary force to compel compliance. ⁴ (Emphasis added.)

Section 1401(j) defines "Customs waters," as to an American vessel, as "the waters within four leagues (12 nautical miles) of the coast of the United States." Clearly, the literal language of § 1581(a) supplies Customs Officers with extremely broad power.

We emphasize that in the present case no warrant issued and the Government does not contend that probable cause to stop or search the vessel existed at the moment of boarding. Moreover, we fully agree with the District Court's conclusion that the Customs personnel did not have reasonable suspicion to detain the vessel. ⁵ However, unlike the similar Customs statutory authority of 19 U.S.C. § 482 which contains a "reasonable cause to suspect" requirement, ⁶ § 1581(a) has no requirement which might limit the power granted Customs agents. Under the explicit language of § 1581(a) Customs Officers need not have even a modicum of suspicion to either stop or search vessels in Customs waters.

Clearly, under the authority granted by Congress, Customs Officers, within their discretion and for the purpose of examining the vessel's papers, could stop and board the Topographic Oceans as it sailed through Customs waters. The stop was plainly authorized by the literal language of the statute. The detention of the vessel under the authority granted by § 1581 was permissible unless violative of minimum federal Constitutional standards.

The Fourth Amendment ⁷ imposes a general reasonableness standard upon all searches and seizures. See Carroll v. United States, 1925,267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; United States v. Caraballo, 5 Cir., 1978, 571 F.2d 975; United States v. Bowman, 5 Cir., 1974, 502 F.2d 1215, 1218; United States v. McDaniel, 5 Cir., 1972, 463 F.2d 129, 134, Cert. denied, 1973,413 U.S. 919, 93 S.Ct. 3046, 39 L.Ed.2d 1041, cited in United States v. Ingham, 5 Cir., 1974, 502 F.2d 1287, 1291 n.6, Cert. denied, 1975, 421 U.S. 911, 95 S.Ct. 1566, 43 L.Ed.2d 777. What is reasonable of course depends upon the circumstances of each case. United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. The reasonableness and constitutionality of brief stops of vessels in Customs waters by Customs agents for the purpose of routine document and safety checks is beyond question. Precedent, the unique circumstances and problems of the maritime context, and the historical origin of § 1581 all dictate that document and safety inspections such as the one involved here are constitutionally reasonable.

First, no case holds that the stop of a vessel on the seas for a document or safety check is constitutionally proscribed by the Fourth Amendment. Indeed, our cases have upheld the right of Government agents to stop vessels for routine...