U.S. v. Green, 81-1281

• Decision Date: 19 February 1982
• Docket Number: No. 81-1281,81-1281
• Citation: 671 F.2d 46
• Parties: UNITED STATES of America, Appellant, v. Albert GREEN, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 46

671 F.2d 46

UNITED STATES of America, Appellant, v. Albert GREEN, et al., Defendants, Appellees.

No. 81-1281.

United States Court of Appeals,

First Circuit.

Argued Oct. 6, 1981.

Decided Feb. 19, 1982.

John H. LaChance, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellant.

John Kenneth Zwerling and Marvin Miller, with whom Michael S. Lieberman, Zwerling & Shapiro, P. C., Alexandria, Va., Jay Colangelo, Stanton, Cal., and Ronald Chisholm, Boston, Mass., were on brief, for appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and WYZANSKI, ^* Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

On April 11, 1980, the Coast Guard cutter Reliance encountered the Persistence, a 52-foot sloop flying a British flag, on the high seas, 55 miles east of Provincetown, Massachusetts. Several factors made the captain of the Reliance suspicious of the Persistence, and he eventually asked for and received British consent to board the vessel. A boarding party went to the Persistence. When they opened the main hatch to go below in order to verify the vessel's "main beam" (registration) number, they discovered that the lower compartment was filled with bales of what turned out to be marijuana, five tons in all. The members of the crew, all United States citizens, were arrested and are the defendants-appellees in this action. The Persistence was seized and brought to Boston.

The defendants were charged with conspiracy to import marijuana, in violation of 21 U.S.C. §§ 952(a), 963, and conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846. The defendants moved to suppress the marijuana, and a hearing was held. The district court originally denied the motion but on reconsideration after further hearing, granted the motion to suppress on the ground that the warrantless search below decks violated the fourth amendment. The government appeals pursuant to 18 U.S.C. § 3731. We reverse.

I. THE FACTS

The Reliance initially encountered the Persistence early on the morning of April 11, 1980. She was moving sluggishly and appeared lower in the bow than normal. These facts indicated that she was probably carrying something heavy on board. The vessel was listed under "category 3" by the Drug Enforcement Agency's El Paso Intelligence Center, meaning that she is suspected of illegal activities and should be boarded if possible.

The Reliance attempted to contact the Persistence, but no one answered for two hours, although a man was seen in the cockpit. A man finally answered and identified himself as "Charles Daniels" (it was later discovered that no one by that name was on board). He said the vessel was the Persistence, her home port was Guernsey, her last port had been Bermuda, and her next port was Portland, Maine. "Daniels" expressed interest in a hurricane he said was in the area they had just left; the captain of the Reliance (Commander Bates) thought this unusual, as the hurricane was in the Caribbean, not near Bermuda.

Bates contacted his operational commander and asked him to contact the British government to ask permission to board. He requested permission to board from "Daniels," who refused. The U.S. State Department then sought permission to board from the British government. That afternoon, the State Department received a telegram from the U.S. Embassy in London, stating that the British authorities were "nearly certain" the Persistence was of U.K. registry, but to confirm it, the "carved in the beam" number should be checked. More importantly, it further stated that "the U.K. authorities have granted authority to board and search subject vessel."

At 3:00 p. m. on April 11, Bates was informed of the British consent and told to board the vessel for purposes of determining and verifying its registration and determining the nationality of the persons on board. Bates informed the Persistence of the British consent; one of the defendants replied, "Fine, come aboard," and an armed boarding party was sent over. Bates instructed them to check the registration number and verify it by locating the main beam number. The defendants-the only persons on board-presented their identification to the boarding party, as well as the vessel's papers, and a provisional U.K. registration (the vessel had earlier been registered in the United States). When asked to point out the main beam number, defendant Kincaid indicated a board on deck and then pointed to some seat cushions. It was not in either of these places, and indeed, it was unreasonable to think it could be, as the number is always placed on a permanent structural part of the vessel. Kincaid repeatedly said that it was not below deck, but when told that the boarding party would have to go below to find the number, he assented. ¹ He then slid open the hatch, and said, "Looks like we've made history."

When the hatch was opened, plastic and burlap wrapped bales were visible, filling the lower compartment to within three feet of the overhead. The smell of marijuana was present. A search was made for the main beam number, but it could not be found. A bale was opened and tested positively as marijuana. Another search eventually revealed a main beam number, which was the number of the vessel's previous U.S. registry. The number would not have been visible from on deck.

Defendants argue that the Coast Guard's boarding and subsequent search of the Persistence violated a treaty, the Convention on the High Seas, opened for signature April 28, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200 (entered into force Sept. 30, 1962), ² was not authorized by any federal statute, and violated the fourth amendment. For these reasons, they say, the evidence discovered on board was properly suppressed.

II. CONVENTION ON THE HIGH SEAS

Turning first to the alleged treaty violation, we agree with the district court that the consent of the British government vitiated any violation of the Convention. Article 6 of the Convention on the High Seas provides inter alia that a vessel on the high seas is under the exclusive jurisdiction of the nation under whose flag she sails. ³ The unauthorized interference with a vessel by a foreign state is prohibited by Article 6 unless it comes within a recognized exception. Defendants argue that the boarding of the Persistence violated Article 6.

As a preliminary matter, we face the question whether Article 6 is "self-executing": that is, whether it has become part of our domestic law enforceable by private individuals without separate legislation. See Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 458, 31 L.Ed. 386 (1888). If so, its violation would prevent our courts from exercising jurisdiction over the vessel and would provide a basis for suppression of evidence discovered during an unlawful seizure. See Cook v. United States, 288 U.S. 102, 53 S.Ct. 305, 77 L.Ed. 641 (1933); Riesenfeld, The Doctrine of Self-Executing Treaties and U. S. v. Postal: Win at Any Price? 74 Am.J.Int'l L. 892, 894 (1980). ⁴ If Article 6 is not self-executing, on the other hand, evidence seized in violation of it would not have to be suppressed, because no legislation has been passed to make it part of "the Law of the Land" within the meaning of the Constitution. U.S.Const.Art. VI, cl. 2.

Whether Article 6 is self-executing is a difficult issue. The Fifth Circuit, in what is apparently the only case to address the issue directly, has held that it is not self-executing. See United States v. Postal, 589 F.2d 862 (5th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 40 (1979). Several commentators have expressed the opposite view. See Riesenfeld, supra; Note, "Smoke on the Water": Coast Guard Authority to Seize Foreign Vessels Beyond the Contiguous Zone, 13 N.Y.U.J. Int'l L. & Pol. 249, 302-16 (1980) (hereinafter cited as Coast Guard Authority); Comment, Treaties-Article 6 of the Convention on the High Seas is Not Self-Executing, 55 Notre Dame Law. 292 (1979); Comment, United States v. Postal, Lost on the High Seas, 31 Mercer L.Rev. 1081 (1980). We do not reach this issue, however, because even assuming arguendo that Article 6 is self-executing, it was not violated in this case because the British government consented to the boarding. ⁵

Great Britain's consent waived its rights under Article 6. Given this waiver, the individuals on board the vessel cannot successfully argue that the treaty was violated. While we are not aware of any other court decision clearly disposing of this issue in a holding, other courts have implicitly recognized the correctness of this position and commentators have explicitly endorsed it. See United States v. Dominguez, 604 F.2d 304, 308 (4th Cir. 1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.2d 644 (1980); United States v. Williams, 617 F.2d 1063, 1075, 1090 (5th Cir. 1980) (en banc); id., at 1092 (Roney, J., specially concurring); Riesenfeld, supra, at 903 n.56; Coast Guard Authority, supra, at 328 ("As long as the flag state consents expressly to Coast Guard searches of its vessels, ... (subsequent) seizures do not violate article 6, because the rule of noninterference is not breached when the foreign flag state vessel receives permission from the state whose ship it searches."); see also United States v. Conroy, 589 F.2d 1258, 1268 (5th Cir.), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979); United States v. Rubies, 612 F.2d 397, 403 (9th Cir. 1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 1174 (1980). The practice of obtaining prior consent of the foreign flag state is apparently a fairly common one, see United States v. Streifel, 665 F.2d 414, at 417 (2d Cir. 1981); United States v. May May, 470 F.Supp. 384, 388 (S.D.Tex.1979); Riesenfeld, supra, at 903 n.56; Coast Guard Authority, supra, at 330, and we see nothing to suggest that it is improper. The policy behind ...