617 F.2d 1063 (5th Cir. 1980), 78-5413, United States v. Williams

Docket Nº:78-5413.
Citation:617 F.2d 1063
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frank Gunnar WILLIAMS, Defendant-Appellant.
Case Date:May 12, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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617 F.2d 1063 (5th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,

v.

Frank Gunnar WILLIAMS, Defendant-Appellant.

No. 78-5413.

United States Court of Appeals, Fifth Circuit

May 12, 1980

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Warren G. Jacobs, Miami, Fla., for defendant-appellant.

Patrick H. Sims, Mobile, Ala., for amicus curiae.

Wm. A. Kimbrough, Jr., U. S. Atty., Mobile, Ala., Mervyn Hamburg, Atty., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

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

Before COLEMAN, Chief Judge, BROWN, AINSWORTH, GODBOLD, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, and THOMAS A. CLARK, Circuit Judges. [*]

TJOFLAT, Circuit Judge:

This is a marijuana smuggling case, involving a search on the high seas. We have taken the case en banc to harmonize the discordant precedent that has evolved in the Fifth Circuit and to set aside the original panel's improper application in this nautical context of fourth amendment standards that courts have developed to test searches and seizures that occur ashore. Our analysis of the law should diminish the uncertainty that has burdened those charged with enforcing on the seas the laws of the United States.

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I

Frank Gunnar Williams was charged with conspiring to import marijuana in violation of 21 U.S.C. § 963 (1976). At the time of Williams's bench trial, he and the Government stipulated that the Government could call witnesses who would give the following account of the circumstances that led to his arrest. In January 1978, the PHGH, a 270-foot cargo vessel of Panamanian registry, took on a cargo of sulphur in Venezuela. The vessel's owner, Emanuel Karavias, came aboard before the vessel departed Venezuela. About that time, the ship's captain told the crew members that the crew would be paid in full as soon as the ship had picked up a load of cargo off the Colombian coast and delivered it somewhere in the Gulf of Mexico. Karavias departed the ship in Aruba, leaving behind special radio equipment. In Aruba, two Dominican nationals came aboard and took over operation of the radio equipment. The ship proceeded to the coast of Colombia and anchored offshore. As several smaller vessels came alongside the PHGH, all crew members except the two Dominicans, the captain, and two other officers were ordered below while the PHGH took on some cargo from the smaller vessels. The defendant, Williams, an American, came aboard as the loading began. When one of the crew members tried to go above to see what was happening on deck, he was turned back by Williams, who appeared to be armed.

On January 25, 1978, John Stevenson, a Drug Enforcement Administration (DEA) pilot, was flying a mission to spot vessels that might be involved in drug trafficking. He observed a cargo vessel anchored about one and one-half miles off the coast of Colombia and several smaller craft that were rendezvousing with the cargo vessel. He identified the suspect cargo vessel as the PIGH and reported his observations to the El Paso Intelligence Center of the DEA.

On January 30, 1976, the Coast Guard Cutter ACUSHNET, under the command of CDR A. C. Peck, sighted a vessel bearing the name PHGH in international waters about 100 miles east of the tip of the Yucatan Peninsula. On board the ACUSHNET was a list of suspect vessels that included Stevenson's description of the vessel that he had identified as the PIGH. Since the description matched the vessel under observation, Commander Peck contacted the El Paso DEA, which gave him information indicating that the PHGH and the PIGH were the same vessel.

When the ACUSHNET approached the PHGH, the PHGH hoisted a distress signal flag. By radio, the ACUSHNET asked the PHGH to state its origin, destination, cargo and reason for displaying a distress flag. The PHGH replied that she was enroute from Aruba to Mobile, Alabama, that she was carrying sulphur, and that she had a generator problem requiring no Coast Guard assistance. Although the PHGH flew no flag indicating the country of registration, the name "Panama" appeared on the stern, and the vessel was in fact registered in Panama.

The ACUSHNET maintained visual surveillance of the PHGH from the time of the initial sighting. At about 5:00 a. m. on February 1, crew members of the PHGH began waving clothes, toilet paper, and flashlights and giving hand signals. This activity continued for six hours. By 4:30 that afternoon the ship had stopped dead in the water. At that time, with no encouragement from the Coast Guard, a PHGH crewman dove overboard and swam to the ACUSHNET. The defecting crewman told the Coast Guard that there was "dirty business" on board the PHGH and complained about working conditions.

On February 2, Commander Peck, who had been continually in contact with Coast Guard authorities ashore, received a message from the State Department that the Panamanian Vice-Minister of Foreign Affairs had authorized the Coast Guard to stop, board, and search the PHGH, and, if contraband were discovered, to take the vessel to a United States port and hold those on board for criminal prosecution.

An armed Coast Guard party boarded the PHGH on February 2. One Coast Guardsman was instructed to check the vessel's

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official registration number. Failing to find the number in the engine room, he proceeded to the cargo hold. When he opened the hatch, he discovered, atop the legitimate cargo of sulphur, several hundred brown paper packages, some of which were torn, revealing vegetable matter that proved to be marijuana. The total weight of the marijuana was 21,680 pounds.

The Coast Guard seized the vessel and took it to Mobile, where a DEA agent ascertained that certain documents found on the vessel indicated that the PHGH was bound for Mobile although the legitimate cargo was destined for Peru.

After the bench trial, the court found Williams guilty of conspiring to import marijuana. Williams appealed his conviction, contending: (1) that the district court lacked jurisdiction over Williams's person because his arrest was illegal; (2) that venue in the trial court was improper; (3) that the trial court lacked jurisdiction over the crime since no overt act occurred within the court's territorial jurisdiction; (4) that the United States lacked authority to board and search a foreign vessel on the high seas; and (5) that the search and seizure violated the fourth amendment.

II

On February 6, 1979, a panel of this court dismissed all of Williams's arguments and affirmed his conviction, United States v. Williams, 589 F.2d 210 (5th Cir. 1979). Although the en banc court subscribes to the panel's disposition of Williams's first four contentions and to the affirmance of the conviction, we must disagree with the panel's analysis of the fourth amendment issue.

The panel held that "before the government may order a foreign vessel to stop, . . . reasonable suspicion that criminal activity (is) afloat must be shown," id. at 214, and found that this fourth amendment standard had been amply met. Next, the panel considered whether the search that resulted in the discovery of the marijuana was unconstitutional and held that the search could not have violated any of Williams's fourth amendment rights, since "Williams has no legitimate expectation of privacy in the hold of a merchant vessel." Id.

As authority for the "reasonable suspicion" standard that it applied to the initial stopping (seizure) 1 of the PHGH on the high seas, the panel relied on United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and other cases involving the stopping and searching of possible wrongdoers on land. For reasons that we shall discuss below, we think that the panel should not have assumed that these cases apply automatically to a seizure on the high seas; nor should the panel have attempted to define in the abstract the minimal constitutional requirements governing such a seizure. We acknowledge, however, that the panel's errors were understandable ones because of the muddled state of our precedent.

For example, some Fifth Circuit cases have indicated that the fourth amendment does not prohibit the Coast Guard's stopping of American flag vessels for documentation or safety checks in the complete absence of suspicion of wrongdoing. 2 Fifth Circuit cases have held also that customs

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officials may act without a modicum of suspicion when they board vessels, American or foreign, in customs waters for a routine documents check. E. g., United States v. Whitaker, 592 F.2d 826, 829 (5th Cir.), cert. denied, --- U.S. ----, 100 S.Ct. 422, 62 L.Ed.2d 320 (1979); United States v. Freeman, 579 F.2d 942, 945 (5th Cir. 1978). On the other hand, United States v. Kleinschmidt, 596 F.2d 133, 135 (5th Cir.) (per curiam), cert. denied, --- U.S. ----, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979), in an alternative holding, applied the reasonable suspicion standard to customs officials' investigatory stop of a vessel in customs waters, implying that the question of the applicability of the standard to a stop on the high seas remains open. 3

Several cases have approved warrantless searches of vessels on the high seas without considering whether there existed exigent circumstances and without suggesting that a warrant would ever be necessary to justify a search on the...

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