U.S. v. Jonas, 79-5189

• Decision Date: 09 March 1981
• Docket Number: No. 79-5189,79-5189
• Citation: 639 F.2d 200
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald JONAS, Defendant-Appellant. Summary Calendar. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 200

639 F.2d 200

UNITED STATES of America, Plaintiff-Appellee, v. Donald JONAS, Defendant-Appellant.

No. 79-5189

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit B

March 9, 1981.

Ronald A. Dion, Alvin E. Entin, Lewis S. Kimler, North Miami Beach, Fla., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., Ian M. Comisky, Linda Collins-Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before RONEY, FRANK M. JOHNSON, Jr. and HENDERSON, Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

Appellant Donald Jonas appeals from his conviction, following a jury trial, on both counts of a two-count indictment charging him with conspiracy to import marijuana into the United States in violation of 21 U.S.C.A. §§ 952(a) and 963 (Count I), and conspiracy to possess marijuana with intent to distribute it in violation of 21 U.S.C.A. §§ 841(a)(1) and 846 (Count II).

On January 4, 1978, the Coast Guard Cutter Diligence, while on routine patrol, observed appellant's United States registered vessel, the Lady Sara, some sixty to eighty miles from the Florida Keys. The captain of the Diligence verified that the Lady Sara was on a Coast Guard "lookout list" because of suspected drug smuggling. A Coast Guard party boarded the vessel and commenced a routine document and safety inspecition. ¹ The Coast Guard boarding crew and appellant and twowo codefendants went to the cabin area where the vessel's master looked for documentation papers. One officer then asked the crew whether there were any other crewmen on the vessel; because the crew did not respond to the question, another officer proceeded forward to look for additional crew personnel. Although no crewmen were found in the forward hold area, the officer did observe through an open hold several sacks of what appeared to be marijuana. After a test of the marijuana proved positive, the crew members were arrested and given their Miranda rights and the vessel was searched. The search revealed over 27,000 pounds of marijuana.

Appellant assigns several points of error. First, he challenges the validity of the administrative boarding and inspection on the grounds that such boarding and inspection, made pursuant to 14 U.S.C.A. § 89(a), were violative of the Fourth Amendment, and that the Coast Guard lacked reasonable suspicion to conduct such an inspection. He also contends that the Section 89(a) boarding and inspection were unconstitutional because such actions were a pretext for an illegal search. He further contends that his Miranda rights were violated because his initial inculpatory remarks, which were made during the routine inspection before he was given a Miranda warning, were the product of custodial interrogation. Additionally, he asserts that a prosecution witness' statement that appellant had been given his Miranda rights was an impermissible comment upon his right to remain silent. Finally, he challenges the denial of his motion for judgment of acquittal on two grounds: (1) sufficiency of the evidence; and (2) extra-territorial application of the criminal statutes proscribing possession with intent to distribute.

We have carefully reviewed the record and find each of appellant's assignments of error to be without merit. Accordingly, we affirm.

Title 14 U.S.C.A. § 89(a) ² allows the Coast Guard to stop and board a vessel on the high seas without probable cause or reasonable suspicion. As this Court has recently stated:

This Circuit has found the Coast Guard's § 89(a) plenary authority to stop and board American vessels on the high seas to inspect for safety, documentation, and obvious customs and narcotics violations to be reasonable within the meaning of the Fourth Amendment. United States v. Williams, 617 F.2d 1063, 1075-78 (5th Cir. 1980) (en banc); United States v. Erwin, 602 F.2d 1183-84 (5th Cir. 1979) (per curiam); United States v. Warren, 578 F.2d 1058, 1064-65 (5th Cir. 1978) (en banc) (cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980)).

United States v. DeWeese, 632 F.2d 1267, 1269 (5th Cir. 1980).

Appellant's contention that the Section 89(a) boarding was a pretext for an illegal search rests on the affirmative response of one of the boarding Coast Guard officers to a question asked of him at trial: whether one of the purposes in stopping the Lady Sara was to ascertain whether any marijuana was on board. The district court found that the boarding officers had two purposes in boarding and inspecting the Lady Sara and that although the second purpose was to look for drugs, the initial boarding for a safety and document inspection was proper under the Fourth Amendment and Section 89(a). ³ We find no clear error in these findings of the district court.

The mere fact that the boarding officers may also suspect customs or narcotics violations does not "taint the validity of the safety and documentation inspection (under § 89(a))." United States v. Hillstrom, 533 F.2d 209, 211 (5th Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (1977); see United States v. Baker, 609 F.2d 134, 139-40 (5th Cir. 1980). This Court has upheld a Section 89(a) boarding where the purpose of the stop was "to conduct a safety and document inspection and to look for obvious customs and narcotics violations." United States v. Warren, supra, 578 F.2d at 1065. See United States v. Erwin, 602 F.2d 1183, 1184 (5th Cir. 1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1014, 62 L.Ed.2d 752 (1980). See also United States v. Peabody, 626 F.2d 1300, 1301 (5th Cir. 1980) (rejecting contention that Section 89(a) stop and boarding were pretext to search for contraband).

The marijuana was first observed through the open forward hold by an officer who was looking for other crew members. That officer testified that he thought that he had observed, prior to boarding, four people on the Lady Sara, and that he was looking for an additional crew member. ⁴ That officer observed several large green trashbags, one of which was open and contained a green leafy substance. ⁵

The plain view doctrine permits seizure of objects falling within the plain view of an officer who has a right to be in the position to have that view. United States v. Worthington, 544 F.2d 1275, 1280 (5th Cir.), cert. denied, 434 U.S. 817, 98 S.Ct. 55, 54 L.Ed. 72 (1977). We conclude that the discovery of the marijuana by the officer in this case was within the plain view doctrine, which provided probable cause for the subsequent search of the entire vessel. ⁶

During the initial document check, while all crew members were in the wheel house, the boarding officer who had observed the marijuana returned and held a whispered conversation with the officer in charge. After both officers left and prior to their return, the remaining officer questioned the three crew members. In response to inquiries about the origin and destination of the trip, appellant Jonas stated that the ship came from Key West and was returning there after having been at sea three days. In response to a question about how the crews' (fishing) luck had been on the trip, appellant stated that "I think our luck just ran out." The other two officers then returned with some marijuana leaves, tested the leaves, and arrested the crew members and read them their Miranda rights.

In determining whether an interrogation occurred in a custodial context, thus requiring a Miranda warning, this Court employs a four-factor test: (1) whether probable cause to arrest had arisen; (2) whether the officer intended to hold the defendant; (3) whether the defendant believed that his freedom was significantly restricted; and (4) whether the investigation focused on the defendant. United States v. Warren, supra, 578 F.2d at 1071. This Court in Warren noted that "the routine boarding and inspection of an American vessel on the high seas does not create a custodial situation." Id. After considering these factors, we conclude that the district court's finding that a custodial situation did not exist at the time appellant made his inculpatory statements was not clearly erroneous.

Concerning the first factor, the district court found at the hearing on defendants' motion to suppress certain statements that at the time of appellant's inculpatory responses probable cause to arrest appellant did not exist. After carefully reviewing the record we have concluded that probable cause to search the vessel arose when the marijuana was first observed in the aft hold. ⁷ However, probable cause to arrest appellant did not exist at the time of his inculpatory statements because the officers at that time were still continuing their investigation to determine whether the substance observed in the sacks was in fact marijuana.

A district court's findings of fact on a motion to suppress must be accepted by an appellate court unless clearly erroneous. United States v. Santia-Manriquez, 603 F.2d 575, 578 (5th Cir. 1979); United States v. Duckett, 583 F.2d 1309, 1313 (5th Cir. 1980). The district court's finding that probable cause to arrest appellant did not exist at the time of his inculpatory statements was not clearly erroneous.

Although the subjective interest of the questioning officer was to hold the appellant until the Section 89(a) inspection was completed, this alone was insufficient to render the interrogation coercive. Warren, supra, at 1071. Because the very nature of a Coast Guard boarding is restrictive in the sense that the vessel is not free to leave until the inspection is completed, "the officer must intend to go beyond the restrictions imposed by the customary and routine boarding and search" before the defendant can be said to be in custody for the purpose of the requirement of Miranda warnings. Id. We conclude that the inquiring agent in this case did not intend to take the appellant into custody on drug charges at the time...