U.S. v. Harper, s. 79-5016

• Decision Date: 13 February 1980
• Docket Number: Nos. 79-5016,s. 79-5016
• Citation: 617 F.2d 35
• Parties: UNITED STATES of America, Appellee, v. Donald Winston HARPER, John White, a/k/a Leroy J. Edwards, a/k/a Roy Edwards, Neil Wilson Rowe, Appellants. UNITED STATES of America, Appellee, v. James Merrill BURDINE, Appellant. UNITED STATES of America, Appellee, v. David Ray JENKINS and David Ramond Govus, a/k/a Sam, a/k/a Melvin Hawkins, Appellants. UNITED STATES of America, Appellee, v. Donald Alfred BLACK, Gary Regan Talbert and Robert McNeill Herring, Appellants. UNITED STATES of America, Appellee, v. Richard Lewis JACKSON and Michael Benjamin Forbes, Appellants. to 79-5020.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 35

617 F.2d 35

UNITED STATES of America, Appellee, v. Donald Winston HARPER, John White, a/k/a Leroy J. Edwards, a/k/a Roy Edwards, Neil Wilson Rowe, Appellants.

UNITED STATES of America, Appellee, v. James Merrill BURDINE, Appellant.

UNITED STATES of America, Appellee, v. David Ray JENKINS and David Ramond Govus, a/k/a Sam, a/k/a

Melvin Hawkins, Appellants.

UNITED STATES of America, Appellee, v. Donald Alfred BLACK, Gary Regan Talbert and Robert McNeill

Herring, Appellants.

UNITED STATES of America, Appellee, v. Richard Lewis JACKSON and Michael Benjamin Forbes, Appellants.

Nos. 79-5016 to 79-5020.

United States Court of Appeals, Fourth Circuit.

Argued Aug. 22, 1979.

Decided Feb. 13, 1980.

Barry Nakell, Chapel Hill, N. C., for appellants in 79-5016 through 79-5020; Reber Boult, Atlanta, Ga., for appellant Herring (Steven A. Bernholz, Chapel Hill, N. C., on brief for appellants Black and Talbert; Robert Fierer, Atlanta, Ga., on brief for appellant Burdine; James K. Jenkins, Atlanta, Ga., on brief for appellants Harper and Rowe; Norman B. Kellum, Jr., and David P. Voerman, New Bern, N. C., on brief for appellants Jackson and Forbes; Edwin Marger, Atlanta, Ga., on brief for appellant Govus; Bruce H. Morris, Atlanta, Ga., on brief for appellant White; John W. Stokes, Atlanta, Ga., on brief for appellant Jenkins).

Herman E. Gaskins, Jr., Spec. Asst. U. S. Atty., Raleigh, N. C. (George M. Anderson, U. S. Atty., Raleigh, N. C., on brief), for appellee U. S. in 79-5016 through 79-5020.

Before BUTZNER, HALL and PHILLIPS, Circuit Judges.

K. K. HALL, Circuit Judge:

Appellants appeal their conviction for conspiracy to import marihuana in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 963. Each appellant was arrested at or near the scene of a Drug Enforcement Administration raid in an isolated area of North Carolina where 25 tons, some 400 bales, of South American marihuana were being unloaded from a shrimping trawler. The vessel had been intercepted on the high seas, where its captain and crew agreed to assist in the successful raid at the delivery site. Primarily, appellants raise fourth amendment issues arising out of the interception of the vessel on the high seas, and two vehicular stops of defendants driving along a state highway one mile from the dirt access road to the site. Finding no error in these and the other issues raised, we affirm.

I.

The facts leading up to this raid are discussed in part in United States v. Coats, 611 F.2d 37 (4th Cir. 1979). Those involving the discovery and boarding of the shrimping vessel, the LADY ELLEN, are there stated succinctly as follows:

(I)n January of 1978 the United States Coast Guard was engaged in patrolling the Caribbean sea lanes for general law enforcement purposes with a special emphasis on drug interdiction. On January 25th the Coast Guard Cutter ALERT spotted the LADY ELLEN, a fishing vessel of North Carolina registry, in the Mona Passage between the Dominican Republic and Puerto Rico. Following its policy of stopping all United States vessels less than two hundred fifty (250) feet in length, the crew of the ALERT stopped and boarded the LADY ELLEN and inquired of its master the vessel's destination and point of embarkation. At that point the master stated "you got me, I'm coming from Columbia and I have a load of marijuana on board." A search ensued which produced some twenty-five (25) tons of marijuana. . . .

The Coast Guard admittedly had no suspicion concerning criminal activities aboard the vessel.

Id. at 38, 39.

The propriety of that stop was never decided because we upheld the district court's ruling that appellant Coats had no standing to raise fourth amendment objections to it. Some of the appellants here have such standing, ¹ and we hold that the stop and boarding was lawful, absent any particularized suspicion of criminal activity aboard, because it was undertaken as a systematic "border" stop and inquiry.

Stops and searches at established border checkpoints are reasonable per se, so that the fourth amendment's protection against unreasonable searches and seizures is not implicated. ² The controlling standards are those of the statute granting authority to the government officials to conduct the search. United States v. Bilir, 592 F.2d 735 (4th Cir. 1979) citing United States v. Ramsey, 431 U.S. 606, 616-19, 97 S.Ct. 1972, 1978-80, 52 L.Ed.2d 617 (1977).

The Coast Guard's statutory authority and traditional role of policing vessels on the high seas is found in 14 U.S.C. § 89(a), and its historical antecedents. See Maul v. United States, 274 U.S. 501, 512-531, 47 S.Ct. 735, 739-746, 71 L.Ed. 1171 (1927) (concurring opinion of Mr. Justice Brandeis).

14 U.S.C. § 89(a) ³ reads in pertinent part,

The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers 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.

By its terms, the Coast Guard's authority to stop and board vessels on the high seas is plenary. United States v. Warren, 578 F.2d 1058, 1064 (5th Cir. 1978) (en banc ). In Warren, the Fifth Circuit held, in an en banc decision, that § 89(a) authorizes discretionary boardings of American flag ships on the high seas, with no particularized suspicion about criminal activities aboard, in order to allow officers to conduct random safety and documentary inspections and, "to look for obvious customs and narcotics violations." Id. at 1065. See, United States v. Cadena, 585 F.2d 1252, 1262-63 (5th Cir. 1978).

We think the Coast Guard's exercise of its boarding authority in this case did not violate the fourth amendment.

First, the stop and boarding was not one made at the will and whim of the officer in the field. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 566-67, 96 S.Ct. 3074, 3086-87, 49 L.Ed.2d 1116 (1976). It was undertaken pursuant to a policy adopted through the cooperation of several government agencies to stop all vessels sailing under the American flag which were equipped and of a size sufficient for large-scale smuggling operations which could not be easily detected along isolated areas of the United States coast. It was conducted at a checkpoint in waters well known as sea lanes for such clandestine operations. All vessels of that kind which passed the checkpoint were boarded. These boardings could have been made routinely at port without a particularized suspicion that contraband was being imported and we see no reason why systematic boardings on the high seas should be held unreasonable because they are made away from the border and port, albeit 800 miles at sea.

Second, the nondiscretionary stop and boarding of all vessels passing the checkpoint posed a minimal and, under the circumstances, a reasonably necessary intrusion on privacy interests. The vessel was a commercial vessel sailing on the high seas. Administrative and regulatory searches of commercial enterprises, and vessels generally, intrude on interests and expectations of privacy very different from those involving the integrity of persons and residences not subject to ongoing regulation. Relaxed fourth amendment standards have been approved for closely regulated industries historically subject to close supervision and inspection. See Almeida-Sanchez v. United States, 413 U.S. 266, 270-72, 93 S.Ct. 2535, 2538-2539, 37 L.Ed.2d 596 (1973). Certain industries such as liquor and firearms have such a history of government oversight that no reasonable expectation of privacy exists within the industry.

Commercial shipping can be categorized another such enterprise. Since the beginning of the republic, federal officials have had the authority to board and inspect American flag ships. Persons who sail under the American flag accept the responsibilities and the burdens when they elect to register their ships with the United States Coast Guard. Such regulatory inspections have their basis in the international law of the seas that requires each nation carefully to maintain the navigability and safety of its own commercial fleet as a condition of non-interference from other nations. See United States v. Warren, 578 F.2d at 1064-65. (Stop and boarding on high seas.) But see, United States v. Piner, 608 F.2d 358 (9th Cir. 1979) (Stop and boarding on San Francisco Bay.)

Further we think special considerations apply to the stop and boarding of a vessel on the high seas. The antecedent sailing of the vessel away from United States territorial waters, the probability of return to the United States by the vessel, the historical regulation of vessels on the high seas (and the consequent lowered expectation of privacy which prevails with respect to activities in that setting), as well as the practical difficulties of policing United States vessels on the high seas if some standard of prior suspicion is required, are factors which coalesce to make the search on the high seas a special case, in much the same sense that a border search is.

As contrasted to the citizen living on land and subject to the jurisdiction of numerous police departments and overlapping controls of several layers of government requiring the highest degree of procedural rights, a ship is easily lost upon the vast ocean and subject only to the control of the infrequent government vessels of her own country. Unlike the land-bound citizen who is in constant contact with government and police, the mobility and anonymity of the...