U.S. v. Burke, s. 82-1550

• Decision Date: 14 September 1983
• Docket Number: 82-1551,Nos. 82-1550,s. 82-1550
• Parties: UNITED STATES of America, Appellee, v. Charles F. BURKE, Jr., Defendant, Appellant. UNITED STATES of America, Appellee, v. Alan Peter QUIN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 935

716 F.2d 935

UNITED STATES of America, Appellee, v. Charles F. BURKE, Jr., Defendant, Appellant.

UNITED STATES of America, Appellee, v. Alan Peter QUIN, Defendant, Appellant.

Nos. 82-1550, 82-1551.

United States Court of Appeals First Circuit.

Submitted May 6, 1983.

Decided Sept. 14, 1983.

Robert Kalina, Michael S. Washor, Joseph J. McCarthy, Jr., and Washor, Greenberg & Washor, New York City, on brief, for defendant, appellant.

Daniel Lopez Romo, U.S. Atty. and E.M. De Jesus, Asst. U.S. Atty., Hato Rey, P.R., on brief, for appellee.

Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Defendants appeal from a conviction of aiding and abetting each other in unlawfully, knowingly, and intentionally possessing approximately 41,000 pounds of marijuana in violation of 18 U.S.C. Secs. 2, 7(1) and 9, and 21 U.S.C. Sec. 955a(a). ¹ A judgment of guilty was rendered against defendants in accord with a stipulation of the parties after the district court denied their motions to suppress.

This is another addition to the rather long line of cases in this circuit involving searches and seizures on the high seas. The facts, which are set forth in detail in the district court opinion, 540 F.Supp. 1282, can be summarized as follows.

On March 28, 1982, the Coast Guard ship Pointe Whitehorn was patrolling in the Anegada Passage which separates the Virgin Islands from the Leeward Islands. It was on the lookout for a boat which had been identified by a Coast Guard plane as a black and white "shrimper" (a shrimp fishing boat) with the name of Jeanie B. The captain of the Pointe Whitehorn had been informed that the Jeanie B was suspected of smuggling and that there might be ten armed men on board. The captain knew that the Anegada Passage was not a shrimping area.

At about 11:30 p.m. radar contact was made with a vessel about four miles away which was not visible because its running lights were not lit. The Pointe Whitehorn closed to within one hundred yards of this vessel. Its search light showed the vessel to be a black and white shrimper which the captain of the Pointe Whitehorn first thought carried the name Jeanie B. Inspection by binoculars, however, showed the name to be Irene B II. The vessel was riding low in the water (down to its waterline), showed no flag and the name of its home port, Cape May, New Jersey, was obscured by nets.

Attempts were made to contact the Irene B's crew by radio and a hailer. The Pointe Whitehorn which is eighty-two feet long and is painted white except for diagonal red and blue stripes on either side of the bow came within fifty yards of the Irene B. When the crew of the Irene B failed to respond to either the radio or hailer, a blue flashing light and siren on the Pointe Whitehorn were activated. International Code Flags S and P were run up the signal mast of the Pointe Whitehorn. A spotlight was turned on these signals as well as the Coast Guard ensigns and the light was also played intermittently on the crew of the Pointe Whitehorn standing on her deck in uniform.

The result was that the Irene B tried to get away. A chase that took between five and six hours then ensued. During the chase the Irene B tried twice to ram the Pointe Whitehorn which fired more than ninety rounds from a .50 caliber machine gun across the bow of the Irene B in an attempt to get her to stop. The Irene B was eventually stopped by towing a cable across her bow which entangled her screws. At the time she stopped, the Irene B was listing about ten degrees to port.

A three-man armed boarding party was put on board. The officer in charge, who had prior experience in apprehending marijuana smugglers, smelled marijuana as soon as he reached the deck of the Irene B. The two defendants were held prisoners while the rest of the boarding party proceeded to search the vessel for other crew members and weapons. No other crew members were found, but the search disclosed that the forward and main holds were fully loaded with marijuana. The port list was due to the fact that one of the intake pipes in the engine room had been broken, presumably in an attempt to scuttle the ship. Both defendants were arrested and the Irene B was towed to San Juan, Puerto Rico.

Two issues are raised by appellants: (1) that their fourth amendment rights were violated when the ship was seized pursuant to 14 U.S.C. Sec. 89(a); and (2) that the stop and seizure were unconstitutional because there was no basis to reasonably suspect that the Irene B was engaged in criminal activity.

The first issue is foreclosed by United States v. Hilton, 619 F.2d 127, 131 (1st Cir.1980), cert. denied, 449 U.S. 887, 101 S.Ct. 243, 66 L.Ed.2d 113 (1980), in which we held that under 14 U.S.C. Sec. 89(a) ² "the Coast Guard may stop and board any American flag vessel on the high seas without a warrant and without any particularized suspicion of wrongdoing." (footnote omitted). We have consistently adhered to this position. United States v. Dillon, 701 F.2d 6 (1st Cir.1983); United States v. Green, 671 F.2d 46, 53 (1st Cir.1982), cert. denied, 457 U.S. 1135, 102 S.Ct. 2962, 73 L.Ed.2d 1352 (1982); United States v. Hayes, 653 F.2d 8, 11-12 (1st Cir.1981); United States v. Arra, 630 F.2d 836, 840-46 (1st Cir.1980). This holding is based in part on our finding that automobile stops are significantly different from those of boarding vessels on the high seas and that the holding of Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), that random warrantless stops of automobiles to check licenses and registrations are unconstitutional, does not extend beyond dry land. United States v. Hilton, 619 F.2d at 132-133. The recent Supreme Court decision in United States v. Reynaldo Villamonte-Marquez, --- U.S. ----, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983), confirms our position that for fourth amendment purposes seagoing vessels and automobiles must be treated differently and effectively sinks appellants' contention to the contrary. In Villamonte-Marquez the Court upheld a documentation boarding under 19 U.S.C. Sec. 1581(a) ³ which gives custom officials the same sort of boarding authority within waters of the United States as 14 U.S.C. Sec. 89(a) gives the Coast Guard on the high seas. We quote extensively from the Supreme Court opinion because of appellants' contention that our reasoning in Hilton was erroneous and that Delaware v. Prouse controls.

Our focus in this area of Fourth Amendment law has been on the question of the "reasonableness" of the type of governmental intrusion involved. "Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v. Prouse, 440 U.S., at 654 . See also Camara v. Municipal Court, 387 U.S. 523 [87 S.Ct. 1727, 18 L.Ed.2d 930] (1967); Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968); Cady v. Dombrowski, 413 U.S. 433 [93 S.Ct. 2523, 37 L.Ed.2d 706] (1973); United States v. Brignoni-Ponce, 422 U.S. 873 [95 S.Ct. 2574, 45 L.Ed.2d 607] (1975); United States v. Martinez-Fuerte, 428 U.S. 543 [96 S.Ct. 3074, 49 L.Ed.2d 1116] (1976). It seems clear that if the Customs officers in this case had stopped an automobile on a public highway near the border, rather than a vessel in a ship channel, the stop would have run afoul of the Fourth Amendment because of the absence of articulable suspicion. See United States v. Brignoni-Ponce, supra. But under the overarching principle of "reasonableness" embodied in the Fourth Amendment, we think that the important factual differences between vessels located in waters offering ready access to the open sea and automobiles on principal thoroughfares in the border area are sufficient to require a different result here.

The difference in outcome between the roving patrol stop in Brignoni-Ponce, supra, and the fixed checkpoint stop in Martinez-Fuerte, supra, was due in part to what the Court deemed the less intrusive and less awesome nature of fixed checkpoint stops when compared to roving patrol stops. And the preference for roadblocks as opposed to random spot checks expressed in Delaware v. Prouse, supra, reflects a like concern. But no reasonable claim can be made that permanent checkpoints would be practical on waters such as these where vessels can move in any direction at any time and need not follow established "avenues" as automobiles must do. Customs officials do not have as a practical alternative the option of spotting all vessels which might have come from the open sea and herding them into one or more canals or straits in order to make fixed checkpoint stops. Smuggling and illegal importation of aliens by land may, and undoubtedly usually does, take place away from...