U.S. v. Hilton, 79-1209

Citation619 F.2d 127
Decision Date11 April 1980
Docket NumberNo. 79-1209,79-1209
PartiesUNITED STATES of America, Appellee, v. Terry Wayne HILTON a/k/a Wayne Milton, William J. Baggett and Andrew N. Stover, Defendants, Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Anthony M. Traini, Boston, Mass., with whom Martin K. Leppo, Boston, Mass., was on brief, for defendants, appellants.

Margaret D. McGaughey, Asst. U. S. Atty., Portland, Me., with whom James W. Brannigan, Jr., U. S. Atty., Portland, Me., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Defendants appeal their convictions in the district court on one count of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846. The principal issue raised on this appeal is the constitutionality of the boarding and subsequent search of the sailing vessel Southern Belle on the high seas by officers of the United States Coast Guard. Defendants challenge the introduction at their trial of evidence seized during this search and of evidence removed from a locked briefcase and film containers found aboard; they also claim that without such material there was insufficient evidence to sustain their convictions.

The Facts

The circumstances of the boarding and search of the Southern Belle are detailed in full in the opinion of the district court on defendants' motion to suppress, 469 F.Supp. 94 (D.Me.1979). For present purposes, we need only state the following. On May 23, 1978, a clear, calm day, the 327-foot Coast Guard cutter Duane was cruising on regular patrol in the Gulf of Maine. At about 1:00 p. m., having boarded three fishing vessels earlier in the day for routine inspections, the Duane made radar contact with a fourth vessel later identified as the Southern Belle. This contact occurred on the high seas, approximately 20 miles from the coast of the United States. While the Duane moved closer for a visual sighting, the crew plotted that the Southern Belle was proceeding on a steady course of 20o north, indicating an expected landfall in the vicinity of Mt. Desert Island, Maine.

About one hour after initial radar contact, the Duane sighted the vessel, the stern of which bore the inscription: "Southern Belle, Wilmington, North Carolina." After further observation, the commander of the Duane decided to send a boarding party to conduct a safety and documentation inspection of the Southern Belle. At the suppression hearing, Cmdr. Leo N. Schowengerdt testified that the factors he considered in making this decision included: the absence of state registration numbers on the bow of the vessel, its geographical position, the distance of the ship from its home port at that time of year, the appearance of the persons on deck who were wearing foul whether gear on a clear day, and the ship's course toward the coast of Maine.

A five-man boarding party consisting of two officers and a three-man crew were dispatched in a motor launch to board the Southern Belle. The boarding took place at about 3:30 p. m. approximately 20 miles from the coast. The three men on board the Southern Belle later identified as defendants Terry Wayne Hilton, William J. Baggett and Andrew N. Stover assisted the boarding party by shortening sail and taking on lines from the launch. Upon inquiry, Baggett identified himself as the ship's master and produced a large packet of documents purporting to be the ship's registration papers. Lieutenant Paul Howard and Ensign Robert Watson were unable to determine from these papers whether the vessel was properly registered. Baggett explained that the three men aboard had been hired by one Wayne Milton, the vessel's owner, to sail the vessel to Bar Harbor, Maine, and inquired how long it would take the vessel to reach Bar Harbor.

Howard and Watson could find neither a valid, current state registration (which would also have required the vessel to show an identification number on the bow) or a valid federal registration. Suspecting that the vessel might be stolen, they decided to check the vessel's main beam number to see if the number engraved on the beam corresponded to the official registration number on the documents Baggett had presented. Lieutenant Howard asked where the engine room was, whereupon Baggett escorted him through a hatch below the cockpit area and forward into the engine room. Ensign Watson remained in the cockpit area looking through the hatch toward the living compartment in the direction Howard had gone. From this position Watson observed burlap bags partially covered by clothing and blankets which he suspected were bales of marijuana. Watson then radioed the Duane requesting an armed boarding party as reinforcements.

While in the engine room, Howard was unable to find the main beam number, but he did conduct a brief safety inspection. On the way back to the cockpit, Howard also observed the burlap bags in the living compartment. Once on deck, Howard noticed the odor of marijuana. When the armed boarding party arrived, Howard asked the three Southern Belle crewmen about the bales, but they refused to answer. A field test of a sample from one of the bales registered positive for marijuana. Eventually, 234 bales weighing 61/4 tons were found aboard. Cmdr. Schowengerdt then ordered Howard by radio to arrest the three men and seize the vessel. At this point, Baggett disclaimed his earlier contention that he was master of the vessel; Hilton, who gave his name as Wayne Milton, then stated "I am in charge." The arrested suspects were transported to the Duane about 6:00 p. m.

At approximately 7:30 p. m., the Southern Belle was taken in tow by the Duane with a prize crew aboard under Lieutenant Howard's command. At the direction of the Coast Guard Atlantic Regional Office in New York, Howard then conducted a full search of the vessel for documents or papers that might reflect the vessel's course at the time of the seizure. This search turned up a locked briefcase, which was found under a metal hatch in the living compartment, and a 35 mm camera with six rolls of film in separate canisters. Taken aboard the Duane, the briefcase was opened by the ship's executive officer under Cmdr. Schowengerdt's supervision. Schowengerdt testified he had been informed by this time that the Drug Enforcement Agency (DEA) was conducting an investigation of suspected drug smuggling activities on Mt. Desert Island, Maine, where a large shipment of marijuana was imminently expected. He stated that he ordered the briefcase to be opened because he believed it might contain additional contraband or evidence tying the Southern Belle to the Mt. Desert Island activities. The briefcase in fact contained a passport, notebooks, a writing pad, a calculator, booklets, and other items. The six rolls of exposed film were later developed and together with items from the briefcase admitted into evidence.

The land-based DEA investigation led to the arrests of 13 other persons at various points near the Maine coast. All 16 were charged with conspiracy to possess marijuana with intent to distribute. Subsequent to the district court's ruling on the motion to suppress, the 13 land-based conspirators pleaded guilty. Defendants Hilton, Baggett and Stover were tried by a jury and found guilty. After trial, defendants filed motions in the district court seeking reconsideration of the denial of their motion to suppress and a judgment of acquittal notwithstanding the verdict. On April 26, 1979, these motions were denied, and defendants were sentenced. This appeal followed.

I.

The Coast Guard boarding of the Southern Belle was conducted pursuant to the authority of 14 U.S.C. § 89(a), which provides:

"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. When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested or, if escaping to shore, shall be immediately pursued and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel liable to a fine or penalty and if necessary to secure such fine or penalty, such vessel or such merchandise, or both, shall be seized."

Under this statute, the Coast Guard may stop and board any American flag vessel on the high seas 1 without a warrant and without any particularized suspicion of wrongdoing. Although the statutory language is quite broad, the statute has been consistently construed as limiting such stops in the absence of probable cause to the necessary task of conducting safety and document inspections. See, e. g., United States v. Warren, 578 F.2d 1058, 1064-65 (5th Cir. 1978) (en banc); id. at 1077 (Roney, J., dissenting); United States v. Hillstrom, 533 F.2d 209, 210 (5th Cir. 1976) (per curiam), cert. denied, 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (1977); United States v. Odom, 526 F.2d 339, 342 (5th Cir. 1976); cf. United States v. Zurosky, 614 F.2d 779, 787-789 (1st Cir. 1979) (construing similar customs...

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