U.S. v. Norman

• Citation: 701 F.2d 295
• Decision Date: 29 March 1983
• Docket Number: Nos. 82-5129,s. 82-5129
• Parties: UNITED STATES of America, Appellee, v. Paul Mayhew NORMAN, Appellant. UNITED STATES of America, Appellee, v. Ramon Florencio ARCE, Appellant. UNITED STATES of America, Appellee, v. Robert Leonard BRYANT, Appellant. to 82-5131.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 295

701 F.2d 295

UNITED STATES of America, Appellee, v. Paul Mayhew NORMAN, Appellant.

UNITED STATES of America, Appellee, v. Ramon Florencio ARCE, Appellant.

UNITED STATES of America, Appellee, v. Robert Leonard BRYANT, Appellant.

Nos. 82-5129 to 82-5131.

United States Court of Appeals,

Fourth Circuit.

Argued Oct. 8, 1982.

Decided Feb. 23, 1983.

Rehearing and Rehearing En Banc Denied March 29, 1983.

Nestor Castillo, Jr., Bennie Lazzara, Jr., Tampa, Fla. (Chris Christie, Norfolk, Va., on brief), for appellants.

J. Phillip Krajewski, Asst. U.S. Atty., Norfolk, Va. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., on brief), for appellee.

Before BUTZNER and MURNAGHAN, Circuit Judges, and WALTER E. BLACK, Jr., United States District Judge for the District of Maryland, sitting by designation.

BUTZNER, Circuit Judge:

Paul M. Norman, Ramon F. Arce, and Robert L. Bryant, were convicted of conspiracy to import, possession, and importation of marijuana. They appeal, asserting that the trial court erred in refusing to suppress 552 bales of marijuana seized aboard their vessel. We find that the search and seizure of the marijuana were justified by the plain view exception to the Fourth Amendment and affirm the judgment.

I

The vessel Fisherman's Paradise Too was stopped and boarded by officers from a coast guard cutter in the Chesapeake Bay. Upon boarding the Paradise Too, the officer in charge, Lt. James Monaghan, identified himself to the defendants and requested the ship's papers and documentation. Bryant identified himself as the captain, and offered to lead Lt. Monaghan to the pilothouse where the papers were kept. Monaghan followed Bryant to the pilothouse, noticing along the way that several bales of a tightly-wrapped substance, partially covered by a tarp, were on board the ship. Indeed, on arriving at the pilothouse, the two men had to crawl over several of the bales to reach the ship's papers. Once inside the pilothouse, Monaghan saw more bales below decks.

During this time, Monaghan also noticed a strong smell of marijuana aboard the ship. This smell, in addition to the packaging of the bales and other observations previously made by the Coast Guard cutter, led the officer to conclude that probable cause existed to arrest Bryant and his crew and to seize the vessel. After placing the defendants under arrest and securing the ship, Monaghan directed another coast guardsman to test the substance in the bales. That test showed that the bales contained marijuana, and they were seized on that basis. A search warrant for the bales was never obtained.

The defendants moved to suppress the bales prior to trial. Based on Lt. Monaghan's testimony outlining the above facts, the trial judge refused to suppress the bales. Later, at trial, testimony of the coast guardsman who tested the bales was introduced. He testified to finding a one to two inch hole at the top of one of the bales from which he could see a leafy substance, and through which he pulled a sample to test. The trial judge found that, given the smell of marijuana, the packaging of the bales, and the hole in the bale, the marijuana was in plain view, and thus no warrant was required prior to a search and seizure of the bales.

II

The starting point for any examination of a warrantless search is the principle that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Against this principle stand several specific exceptions. Of these, the exception for evidence discovered in "plain view" is particularly applicable to this case. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The defendants argue against the application of the plain view doctrine on the ground that there was no plain view at all. That is, the defendants contend that the marijuana, packaged and baled, was not exposed to the plain view of the Coast Guard officers. Because it was not openly visible, they argue that there could have been no plain view of the marijuana. Moreover, given the various kinds of goods capable of being packaged and shipped in bales, they say that the simple presence of the bales aboard the ship could not have led to the conclusion that they contained marijuana. Consequently, the defendants assert that no conclusion could have been drawn prior to the inspection of the contents of the bales.

This court has held that plain view encompasses more than simply seeing contraband. Rather, for an object to be in plain view, it must only be "obvious to the senses." United States v. Sifuentes, 504 F.2d 845, 848 (4th Cir.1974). To be obvious to the senses, contraband need only reveal itself in a characteristic way to one of the senses. Thus, in Sifuentes and United States v. Haley, 669 F.2d 201 (4th Cir.1982), it was held that odor alone is sufficient to place marijuana into plain view. In Sifuentes, the police opened a truck after impoundment and discovered several cardboard boxes. The boxes were searched and found to contain marijuana. The court held that the odor of the marijuana in the truck was sufficient to place the contraband into plain view. 504 F.2d at 848. Similarly, in Haley, the court upheld the warrantless search of garbage bags found to contain marijuana. While it did so on the basis of both the packages' distinctive configuration and the smell of marijuana, the court made clear that the odor alone was sufficient. "We do not imply that both distinctive configuration and odor are necessary to justify the search of the containers," wrote the court, for "odor alone is sufficient cause to search such containers as cardboard boxes." 669 F.2d at 204 n. 3. See also United States v. Haynie, 637 F.2d 227, 233, 236 (4th Cir.1980).

It is uncontroverted that a strong smell of marijuana permeated the Paradise Too. Lt. Monaghan was well acquainted with this smell through his official duties, and recognized it immediately. Moreover, Lt. Monaghan also testified that marijuana was often baled for importation in a manner similar to the bales aboard the Paradise Too. In fact, he testified as to Spanish markings on the bales, markings typical of those he had seen in other instances of marijuana importation. His opportunity to see, smell, and even feel the bales while going to the pilothouse, coupled with his knowledge of marijuana importation, was sufficient to place the marijuana into his plain view. Thus, no warrant was required for a search of these containers, and they were properly admitted into evidence.

III

It is important to note that in holding that the marijuana aboard the Paradise Too was in plain view, we do not authorize a general search of every vessel stopped for a documentation check. Rather, we are simply applying the plain view doctrine. The evidence seized was in plain view and did not present the issue of a generalized search of a vessel following an arrest, nor did it present any issue of a search incident to arrest. ^*

Finding no error in the admission of the evidence, we affirm the defendants' convictions.

AFFIRMED.

MURNAGHAN, Circuit Judge, concurring:

Concurrence this must be simply because of the precedential force exerted by Blair v. United States, 665 F.2d 500 (4th Cir.1981). It is an unwilling concurrence, however, for my concern about distortion of the concept of "plain view" expressed in the dissent in Blair is in no way diminished.

As a preliminary point, I might draw attention to the fact that there is a possible contention not asserted by the Government and consequently not before us as to whether the inspection rights of the Coast Guard and customs authorities were so great that they dispensed altogether with the need for a warrant. Arguably, the statute governing law enforcement by the Coast Guard, 14 U.S.C. Sec. 89(a), by its terminology intends, with respect to the high seas and waters over which the United States has jurisdiction, to authorize warrantless searches of opaque containers:

(a) 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.

However, a statute does not rise as high as, much less exceed the dignity of, the Constitution and particularly here of the Fourth Amendment. Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973) ("It is clear, of course, that no Act of Congress can authorize a violation of the Constitution. But under familiar principles of constitutional adjudication, our duty is to construe the statute, if possible, in a manner...