U.S. v. Demanett, GUERRERO-CHAGUA

Decision Date28 July 1980
Docket NumberC,79-2267 and 79-2292,79-2251,GUERRERO-CHAGUA,79-2250,CASTILLO-YEPE,Nos. 79-2249,E,s. 79-2249
Citation629 F.2d 862
PartiesUNITED STATES of America v. DEMANETT, Ronald S. Appeal of Ronald DEMANETT. UNITED STATES of America v. O'DELL, Pennell L., Jr., Appellant. UNITED STATES of America v.rnesto Bolivar, Appellant. UNITED STATES of America v.lemente, Appellant. UNITED STATES of America v. GOMBREWICZ, Charles P. Appeal of Charles GOMBREWICZ.
CourtU.S. Court of Appeals — Third Circuit

Robert J. Del Tufo, U. S. Atty., Newark, N. J., Kenneth N. Laptook, Asst. U. S. Atty., Newark, N. J., on brief, for appellee.

Gerald B. Lefcourt, (argued), New York City, for Ronald Demanett.

James T. Dowd, Caldwell, N. J., for Pennell O'Dell, Jr.

Steven J. Hyman, Hyman & Miner, New York City, for Charles Gombrewicz.

Steven A. Stupak, Cherry Hill, N. J., for Clemente Castillo-Yepes.

Theodore V. Wells, Jr., Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, Roseland, N. J., for Ernesto Bolivar Guerrero-Chaguay; Richard Ware Levitt, of counsel.

Before GIBBONS, WEIS and SLOVITER, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Ronald S. Demanett, Pennell L. O'Dell, Jr., Charles P. Gombrewicz, Ernesto Bolivar Guerrero-Chaguay, and Clemente Castillo-Yepes appeal from judgments of sentence for violations of various statutes prohibiting the importation of marijuana. They contend that the judgments of sentence must be reversed because all the evidence used against them resulted from an unlawful search and seizure, and should have been suppressed. 1 We affirm.

I.

On March 21, 1979, the Coast Guard Cutter POINT FRANKLIN, commanded by Lt. John H. Olthuis, was the Duty Patrol Boat for the Southern New Jersey Coast, the Delaware Coast, and Delaware Bay. At 4:30 p. m. while the POINT FRANKLIN was proceeding east at a point five miles outside Delaware Bay, Olthuis observed to the north a 72 foot white commercial fishing boat, headed westerly into Delaware Bay at a speed of 2 to 3 knots. Approaching to within 150 yards, Olthuis discerned the name KRISTEN JANE and the home port "Charleston, South Carolina" on the boat's stern. He noted that it was rigged for net trawling for fish, which was uncharacteristic of fishing boats operating in that area, most of which trawled for shellfish with different gear. He also observed that the trawl doors were lashed in place on the deck, that the deck was clean, and that the trawling gear appeared not to have been used for a long time. From his experience Olthuis thought the 2 to 3 knot speed was uncharacteristicly slow for a fishing vessel heading to port with a catch of fish at that time of day.

Olthuis reported his observations to the Coast Guard station at Cape May, New Jersey, and redirected the POINT FRANKLIN to its original easterly heading away from the KRISTEN JANE. He reconsidered, however, and radioed a request to the Cape May station for an EPIC check on the KRISTEN JANE. An EPIC check is an inquiry to the El Paso Intelligence Center, at which federal law enforcement agencies operate a computer data bank containing information on known and suspected drug smugglers. While awaiting a response to this request Olthuis ordered the POINT FRANKLIN to reverse course and follow the KRISTEN JANE. Shortly thereafter the Cape May station informed him that the EPIC check on the KRISTEN JANE was negative. The radio conversation between the Cape May station and the POINT FRANKLIN follows.

Cape May Coast Guard Cutter Point Franklin, this is the Group Cape May, over.

Pt. Franklin Group Cape May, Cutter Point Franklin.

Cape May Roger, we've checked all our (lists) we come up negative, EPIC comes up negative also.

Pt. Franklin Roger, chief, I've just got a feeling about this guy, he's out of South Carolina, I've never seen him down in this area before. Uh, he's a real slow ______ into Delaware Bay; uh, I don't know. I just don't know where he would be going . . .

Cape May Uh, Pt. Franklin, this is Group Cape May. If you have any doubts, why don't you go ahead and board them and see maybe you got a problem because you're proceeding so slowly.

Pt. Franklin Roger. I'll follow them into Delaware Bay. My zodiac, I can't use it yet because I don't have a lifting ______ that's on the old ______ which we're hopefully getting tomorrow, so I'm going to have to pull up along side of him and I'm going to follow him into where it's a little calmer.

Cape May Uh, Roger. Keep us advised. We'll stay on 381, ______, and, uh, keep us advised of your situation.

Pt. Franklin Wilco, out.

The reference in the conversation to the zodiac, is to a small boat which would ordinarily be lowered from the POINT FRANKLIN's deck for use in boarding. Its disablement meant that a boarding would have to be made directly from vessel to vessel.

Olthuis radioed the KRISTEN JANE, identified himself as a Coast Guard officer, and without explaining his purpose, informed those manning the vessel that he intended to board. He ordered the defendants to proceed into the calmer waters of Delaware Bay. They did so, and at 6:00 p. m., after both vessels had entered more sheltered waters, Olthuis maneuvered the POINT FRANKLIN into a boarding position relative to the KRISTEN JANE. 2 As this maneuver took place Petty Officer Cornell noticed that the name KRISTEN JANE and the home port were not permanently affixed to the vessel, but were printed on a placard hung over the stern by lines.

Olthuis ordered Petty Officers Strickland and Cornell to board the KRISTEN JANE. They did so, and were met by O'Dell and Demanett. The Petty Officers explained that they had boarded to inspect for compliance with applicable federal laws, but did not specify those laws. They asked O'Dell and Demanett whether any other persons were on board, and were told that Gombrewicz was the only other person. Strickland asked to see the KRISTEN JANE's documentation papers. Informed they were not on board, he told O'Dell he would have to look for the vessel documentation number imprinted on the main beam. Strickland also noted the absence of certain required navigational aids and safety equipment. At Strickland's request, O'Dell removed the tarpaulin covering the hold so that he could examine the main beam vessel documentation number. 3 Removing the hatch cover revealed 21,580 pounds of marijuana, filling two-thirds of the hold.

Strickland identified the substance and read O'Dell and Demanett their Miranda rights. Gombrewicz was brought from the wheelhouse to the fantail where he advised Cornell that there were others on board. Seven Colombian nationals were located in the aft section of the deckhouse. All were arrested and the KRISTEN JANE was towed to Cape May.

II.

The defendants concede that once the hatch cover was opened the Coast Guard officers had probable cause to make arrests and to seize the vessel and cargo without a warrant. See Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). They contend, however, that the seizure of the vessel took place when its crew was ordered by an armed Coast Guard cutter to proceed to calm waters for boarding, and that the seizure and boarding violated the fourth amendment. Thus, they urge, all the evidence of crime which came into plain view when the hatch cover was removed was the fruit of an initial unlawful search and seizure, and should have been suppressed. They contend that the seizure and boarding were invalid because the documentation and safety justifications offered by the government were pretextual and because even if those justifications were not pretextual Lt. Olthuis violated standards laid down by the Supreme Court for administrative inspections.

The trial court declined to rule on the contention that the documentation and safety inspection was pretextual. The court held that the Coast Guard has legal authority to make such inspections on any vessel, and that armed with this actual authority its additional motives are irrelevant. Because the trial court did not find the absence of a criminal investigative motive, in order to affirm we must assume, as the evidence strongly suggests, that Lt. Olthuis was seeking evidence of smuggling, and that this motivation is irrelevant. The trial court did rule that selection of vessels for documentation inspection on the basis of a Coast Guard commanding officer's subjective hunch did not violate fourth amendment administrative inspection standards.

A. Applicability of the Fourth Amendment

The government does not contend that the fourth amendment is inapplicable to the activities of the Coast Guard at the time and place of the order to proceed to calm waters for boarding. The trial court assumed, as do we, that it applies whether the Coast Guard action took place in the territorial waters of Delaware, in the twelve mile contiguous zone, or on the high seas. See United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927). Moreover, the government makes no contention that any of the defendants arrested on board the vessel lack standing to claim that the search and seizure violated the fourth amendment. We assume, as did the district court, that both the American citizens and the Colombian nationals aboard the vessel were protected by it. See, e. g., United States v. Conroy, 589 F.2d 1258, 1264-65 (5th Cir. 1979), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1980); United States v. Cadena, 585 F.2d 1252, 1262 (5th Cir. 1978); United States v. Toscanino, 500 F.2d 267, 280 (2d Cir. 1974).

B. Coast Guard Boarding Authority

Federal statutes provide for registration of vessels engaged in foreign trade, 46 U.S.C. § 11 (1976), and for enrollment of vessels engaged in the coasting trade or fisheries. 46 U.S.C. §§ 251-52 (1976). Only United States vessels may be enrolled, and an unenrolled fishing vessel may not, except as provided by a treaty, land its catch in a port of...

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