U.S. v. MacPherson, 80-5760

Decision Date14 December 1981
Docket NumberNo. 80-5760,80-5760
Citation664 F.2d 69
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Stanley MacPHERSON and Kenneth Underhill, Defendants-Appellants. . Unit B *
CourtU.S. Court of Appeals — Fifth Circuit

Philip Carlton, Jr., Thomas A. Wills, Miami, Fla., for defendants-appellants.

Daniel H. Forman, Linda Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, TJOFLAT and THOMAS A. CLARK, Circuit Judges.

TJOFLAT, Circuit Judge:

Stanley MacPherson and Kenneth Underhill were convicted following a bench trial in the district court on a two-count indictment charging them with importing marijuana into the United States in violation of 21 U.S.C. §§ 952 and 960 (1976), and possessing marijuana with intent to distribute it in violation of 21 U.S.C. § 841 (1976). They appeal, claiming that the 609 pounds of marijuana that led to their convictions were seized during an unlawful search and that the prosecution failed to prove either offense alleged in the indictment.

We hold that the marijuana was discovered and seized by U. S. Customs agents in a permissible border search; therefore, the district court was correct in overruling appellants' motion to suppress it. We also hold that the evidence was sufficient to make out a case against MacPherson on the possession count and that the concurrent sentence doctrine is applicable; therefore, we affirm his conviction on both counts. As for Underhill, however, we find that the government failed to establish a case against him on either count and accordingly we set aside his conviction.

I.

The case was tried to the district court on evidence previously adduced at a preliminary hearing held by the magistrate and a suppression hearing conducted by the district court. This evidence established the following facts. On November 18, 1979, at approximately 7:00 a. m., a Dade County, Florida, Public Safety Department airplane was patrolling off the west coast of Bimini, a reputed haven for drug smugglers located forty-three miles east of the Florida peninsula. The pilot spotted a yellow-hulled boat, approximately twenty-five feet long, five to eight miles west of Bimini; the boat was headed straight toward the Florida coast at a speed of twenty-five to thirty knots.

According to the pilot, who frequently patrolled these waters, boats generally did not travel from Bimini to the United States at such an early morning hour. Given the time of day and Bimini's reputation for smuggling activities, the pilot decided to place the boat under surveillance. Because of the differences in the relative speeds of the boat and the plane, however, the pilot could not fly over the boat unobtrusively; he was forced to circle continuously above the vessel as it sailed toward the United States.

When the boat entered United States customs waters, twelve miles from the Florida coast, the pilot notified both the Dade County Marine Patrol and U. S. Customs. He then continued to circle above the boat as it traversed the customs waters and approached the territorial waters of the United States, three miles off the coast. Cunard S. S. Co. v. Mellon, 262 U.S. 100, 43 S.Ct. 504, 67 L.Ed. 894 (1923). Suddenly it turned thirty degrees to the south and joined a group of trolling fishing vessels; the pilot estimated that these fishing vessels were situated approximately three to three and one-half miles off the Florida coast.

The Dade County Marine Patrol and U. S. Customs soon joined the surveillance. A Marine Patrol boat went directly to the yellow-hulled craft, communicated with it and immediately departed. The Customs agents observed that the boat had a Florida registration and had two fishing lines out. They pulled their boat alongside the craft, and Customs Officer Herm boarded it; he estimated that the boarding took place three to three and one-half miles off the Florida coast. Herm identified himself to the two persons aboard the vessel, MacPherson and Underhill, and asked them where they were coming from. MacPherson replied that they had been near Bimini and had been fishing. Herm checked the boat's registration, found it in order, and announced that he was going to search the vessel.

Officer Herm found no evidence of contraband on the deck or in the forward cabin. On further inspection he noted that one of the vessel's three hatches was sealed with a silicon gel and asked why it was sealed. MacPherson volunteered that he did not know what was in the hold, so Herm cut the seal and raised the hatch. He immediately smelled marijuana and observed several bales stacked in the hold.

Officer Herm placed MacPherson and Underhill under arrest and informed them of their Miranda rights; they chose to remain silent. Herm then put them in handcuffs and directed them to sit in the stern while he took the vessel into port. During this trip MacPherson broke silence and asked Herm to increase the boat's speed so that it would "plane" and thus minimize engine wear; the agent complied. Later, while being processed at the Customs House, MacPherson abruptly made an unsolicited statement to Officer Herm. He told Herm: "This is the first and last time I will ever do anything like this."

II.

As the district court found, Customs did not stop and board appellants' boat under the authority of 19 U.S.C. § 1581 (1976), for the purpose of inspecting the vessel's documents or for making a safety check; instead, it conducted a border search. 19 U.S.C. § 482 (1976). 1 The court upheld this search because the Customs agents had a reasonable belief that appellants were seeking to enter the United States and because the search was conducted at the border or its functional equivalent.

MacPherson and Underhill challenge the district court's conclusion on three grounds. First, they claim that Customs cannot make a border search of a vessel unless it has proof that the vessel has had contact with a foreign port or a foreign ship. In this case, appellants point out, Customs had no such proof; therefore, a border search was not in order. We recently rejected this contention in United States v. Stone, 659 F.2d 569 (5th Cir. 1981). There we said that Customs may "inspect each individual or item as it enters our borders ... with complete impunity;" there is no need to show that it "actually left foreign soil." Id., at 573. This language plainly eliminates the foreign nexus requirement appellants would impose.

Appellants next claim that the court's finding that the Customs agents were reasonably certain that the yellow-hulled boat was seeking entry into the United States is clearly erroneous. The evidence before the district court negates this claim. At the time Officer Herm boarded appellants' vessel, he knew that the vessel, bearing a Florida registration, had been sighted off Bimini and had traveled over thirty miles at high speed in a beeline toward the Florida peninsula. For almost an hour a Dade County Patrol plane had circled over the boat. Suddenly, as the boat reached the three-mile limit, it changed course, joined some fishing vessels, slowed to trolling speed and threw two fishing lines into the water. Appellants argue that the only inference the Customs agents, and the court, could have drawn from this behavior was that appellants knew they were being followed, would be subject to a border search if they maintained their course, and therefore decided not to enter the United States.

The fact that appellants took steps to hide from the patrol plane and to avoid a border search did not contradict the inference that appellants were heading for Florida; if anything, it reinforced that inference. The district court's finding that the agents had reason to believe that appellants' boat was seeking to enter United States territory, therefore, was well founded.

Appellants' final challenge to the district court's determination that a valid border search occurred is that a border search cannot be conducted outside the three-mile limit. Here, the search took place three to three and one-half miles from the Florida coast; the court concluded that this was at the border or at its functional equivalent. We need not decide whether a search beyond the three-mile limit constitutes a search at the functional equivalent of the border, 2 for we are convinced that the court's alternative holding, that the search occurred at the border, is sound.

The sea border is an imaginary line in the ocean that bends and twists to follow an ever changing coast. United States v. Freeman, 579 F.2d 942, 946 (5th Cir. 1978). Each movement of a vessel changes its position relative to that coastline; and a boat running laterally along the coast might be a half mile outside the border at one point and well within the border at another. Thus, fishing boats trolling near the border, like those the appellants joined, may enter and leave the territorial waters several times a day. At a given moment it is not likely that they would know whether they were within or without the territory of the United States. The sea border has no fixed entry points like its land counterpart, id.; no natural or manmade objects mark its path. A vessel's position relative to the border can only be estimated; it cannot be determined precisely.

Given the contours of the coastline of southeast Florida, we think that a vessel estimated to be within one-half mile of the sea boundary is, for all intents and purposes, at the border of the United States. Therefore, the court did not err when it inferred from the agents' estimates that appellants' boat was searched at the territorial border.

A border search is reasonable in a fourth amendment context simply by virtue of the fact that it occurs at the border. United States v. Ramsey, 431 U.S. 606, 616, 97 S.Ct. 1972, 1978, 52 L.Ed.2d 617 (1977); United States v. Sandler, 644 F.2d 1163, 1165 (5th Cir. 1981) (en...

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