595 F.2d 1303 (5th Cir. 1979), 77-5359, United States v. Whitmire

Docket Nº:77-5359.
Citation:595 F.2d 1303
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael Gary WHITMIRE and Donald John Williams, Defendants-Appellants.
Case Date:June 04, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1303

595 F.2d 1303 (5th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,


Michael Gary WHITMIRE and Donald John Williams, Defendants-Appellants.

No. 77-5359.

United States Court of Appeals, Fifth Circuit

June 4, 1979

Page 1304

Michael J. Rosen, Miami, Fla., for defendants-appellants.

Jack V. Eskenazi, U. S. Atty., David F. Geneson, Jamie L. Whitten, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before COLEMAN, GEE and RUBIN, Circuit Judges.

GEE, Circuit Judge:

A district court, sitting without a jury, convicted appellants Michael Whitmire and Donald Williams of possession of marijuana with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). Whitmire was also convicted of importation of marijuana in violation of 21 U.S.C. §§ 952(a), 960(a)(1); Williams was acquitted of that charge. On appeal they argue that due process was violated by the trial court's referral of their motion to suppress evidence to a magistrate under 28 U.S.C. § 636(b)(1)(B). They also challenge the warrantless search that produced the main evidence used against them. Finally, Williams challenges the sufficiency of the evidence to support his conviction of possession with intent to distribute. Disagreeing with each of appellants' contentions, we affirm their convictions.

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I. Referral to Magistrate of Suppression Motion.

The Ninth Circuit has held that a district court may not enter an order Contrary to a magistrate's recommendation on a referred evidentiary matter without itself holding an evidentiary hearing. United States v. Bergera, 512 F.2d 391 (9th Cir. 1975). Appellants would have us not only espouse that position but extend it to hold that a district court cannot even Adopt a magistrate's recommendation without holding a duplicate hearing. They argue that due process of law requires the trier of fact actually to hear the relevant testimony and assess witness credibility. Whatever the merits of such a rule in instances where a district court chooses to ignore a magistrate's recommendations, a question we need not reach, it is not applicable here. The motion to suppress was referred initially to a magistrate, who recommended that it be denied. After giving counsel an opportunity to object to the magistrate's conclusions and reviewing the record, the district judge adopted those findings and recommendations. The magistrate had a first-hand look at the witnesses and appraised their credibility. The trial judge retained the power to hear additional testimony or the same testimony all over again if he decided that would be beneficial in determining the motion. As the Supreme Court has said in a related but nonconstitutional context:

The magistrate may do no more than propose a recommendation, and neither § 636(b) (of the United States Magistrates Act, 28 U.S.C. §§ 631-639) nor the General Order gives such recommendation presumptive weight. The district judge is free to follow it or wholly to ignore it, or, if he is not satisfied, he may conduct the review in whole or in part anew. The authority and the responsibility to make an informed, final determination, we emphasize, remains with the judge.

Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549, 554, 46 L.Ed.2d 483 (1976).

In the 1976 amendments of the Magistrates Act, Congress enumerated some additional duties that may be assigned to magistrates and clarified, along the lines suggested in Weber, the weight a district court may give to a magistrate's various findings and determinations. Subsections 636(b)(1)(A) and (B) read jointly now specifically provide that a judge may designate a magistrate to conduct an evidentiary hearing on a motion to suppress evidence in a criminal case and to recommend a disposition of the motion. Subsection 636(b)(1) further provides:

Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

These procedures provide sufficient safeguards both to ensure the integrity of the factfinding process and retention by the judge of final responsibility for ruling on the motion. Indeed, the factfinding process may be improved by the referral practice. In making a final determination, the district court has the benefit of a carefully developed record, a magistrate's thoughtful consideration of the issues, and argument of counsel regarding specifics not agreeable to the parties. See Weber, 423 U.S. at 271, 96 S.Ct. 549. We conclude that appellants' rights to procedural due process have not been violated. 1

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II. Warrantless Search of Boat.

Around 8:00 a. m. on December 23, 1976, two customs officers were on marine patrol in a Dade County, Florida, intercoastal waterway. They observed a 25-foot Nova boat speeding at an estimated 40-45 miles per hour through Baker's Haulover Cut, an inlet connecting the ocean to the inland waterway. The boat was coming from the ocean side but was already inside the shoreline when the officers first sighted it. The day was unpleasant for boating: it was overcast, cold, windy, and the water in the cut was choppy. The speeding boat was producing a heavy wake. Each time it came down it threw up a large bow spray, higher than the boat top. To these experienced officers this indicated that there was something heavy in the boat's bow. They later testified that in the past year there had been about 25 similar cases of boats that size, "riding heavy in the bow, throwing excessive bow wake," found loaded with marijuana. They observed two males aboard, and no fishing gear was visible. Considering all these facts in the cloudy light of the inclement day, the officers decided to stop the boat to investigate further.

Their boat, however, was too slow to catch the Nova, which turned north into the inland waterway and continued on at high speeds past a customs inspection station and through two "no wake" areas, a most egregious nautical sin. The officers followed and finally closed with the boat as it was being docked on a canal behind Whitmire's house. At this closer range the officers saw that the boat was encrusted with salt crystals such as might have formed during an extended ocean voyage. They also noticed that both Whitmire and Williams were wearing brand new orange sweatshirts with "BIMINI" printed across the chest.

Appellants had left their boat and were walking toward Whitmire's back door when the officers called to them, requesting to see their identification and registration papers. Whitmire helped the officers dock and then produced his identification and an unsigned boat registration made out to the Excellent Car Company; Williams could produce no identification. Thinking the boat perhaps stolen and still suspecting that contraband was aboard, one officer boarded the Nova to investigate further while the other watched the two men. As soon as the officer stepped down into the cockpit area in the center of the boat he smelled the odor characteristically referred to in these prosecutions, the "overpowering aroma of marijuana." Opening the hatch, he saw over a thousand pounds of baled marijuana, the evidence appellants seek to suppress on fourth amendment grounds. The officers arrested the men and thereafter found an American Express receipt in Whitmire's wallet indicating that he had bought a large quantity of fuel in Bimini the previous day.

Several exceptions to the fourth amendment's warrant requirement are potentially applicable here: (1) border search, with its extended-border and functional-equivalent-of-the-border glosses; (2) a limited investigatory stop upon presence of reasonable suspicion of law violation under United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); (3) pure statutory authority 19 U.S.C. § 1581(a)

Page 1307

found independently reasonable at least as to some searches on water under fourth amendment analysis because of the unique character and history of law enforcement on our country's seaways. See United States v. Freeman, 579 F.2d 942, 946-48 (5th Cir. 1978). There are problems with each of these analyses, however.

The instant facts do not fit a border search analysis neatly, since we have consistently required some degree of probability that the vehicle/vessel has crossed the border. 2 In water cases, the true border is an imaginary line three miles offshore. Though we have not required the coast guard or customs officers to observe the vessel as it crosses this imaginary line, 3 our precedent generally has required that the officials have articulable facts from which they may reasonably infer that the boat has come from international waters. 4 On our facts, the boat first was sighted inside the coastline and, for all the customs people actually knew, might have been on an early morning cruise up and down the intercoastal

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canal or outer coastline. It is true that a boat's space at a dock is often considered the functional equivalent of the border 5 but this is true only of boats thought with some degree of probability to have just entered the country. Thus, traditional search concepts do not justify this particular search since, though the boat had actually come from Bimini as evidenced by the American Express receipt, the officers initially had no...

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