U.S. v. Victoria-Peguero

• Decision Date: 31 July 1990
• Docket Number: VICTORIA-PEGUER,Nos. 89-2189,D,90-1045,s. 89-2189
• Citation: 920 F.2d 77
• Parties: UNITED STATES of America, Appellee, v. Pedro R.efendant, Appellant. UNITED STATES of America, Appellee, v. Fernando W. ANGLADA ALVAREZ, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 77

920 F.2d 77

1993 A.M.C. 1520

UNITED STATES of America, Appellee, v. Pedro R. VICTORIA-PEGUERO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Fernando W. ANGLADA ALVAREZ, Defendant, Appellant.

Nos. 89-2189, 90-1045.

United States Court of Appeals First Circuit.

Heard July 31, 1990.

Decided Nov. 27, 1990.

Rehearing and Rehearing En Banc

Denied in No. 89-2189 Feb. 15, 1991.

Luis Rafael Rivera, for appellant Pedro R. Victoria-Peguero.

Guillermo Ramos Luina, with whom Harry Anduze Montano, was on brief, for appellant Fernando W. Anglada Alvarez.

Thomas M. Gannon, Atty., U.S. Dept. of Justice, with whom Daniel F. Lopez-Romo, U.S. Atty., and Jorge E. Vega Pacheco, Asst. U.S. Atty., were on brief, for U.S.

Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

When drug runners chance to ask the marine police for weather advisories, it is fairly safe to predict, as these appeals illustrate, that storm clouds will soon gather. The tale follows.

I. BACKGROUND

Appellants Pedro R. Victoria-Peguero (Victoria) and Fernando W. Anglada Alvarez (Anglada) were charged in two counts with violating 46 U.S.C.App. Sec. 1903(a) (1988) and 21 U.S.C. Sec. 952(a) (1988), ¹ and with aiding and abetting, 18 U.S.C. Sec. 2 (1988). The events leading to the indictment began on the evening of November 16, 1988, when a team of law officers led by Alberto Irizarry Carlo (Irizarry) left Cabo Rojo to conduct a routine patrol of Puerto Rican waters. The team, United Forces for Rapid Action, known by its Spanish acronym as "FURA," consisted exclusively of commonwealth police officers: Irizarry, officer Agosto of the Puerto Rico Police Narcotics Division, and four members of the Puerto Rico Police Marine Division (officers Seda, Ronda, Toro, and Torres). The FURA team left shore, heading south, around 7:00 p.m. About half an hour later, they received a radio message from a boat identifying itself as the M/V CATU. The CATU stated that it was traveling from the Dominican Republic to Puerto Rico and wanted to know the weather conditions along the west coast. Irizarry furnished the requested information and, upon inquiry by the CATU, identified himself as a representative of the marine police. He refused, however, to give a specific answer to the CATU's request concerning the FURA boat's location.

In order to avoid the worsening weather, Irizarry changed direction and headed north toward Mayaguez. Around 9:15 p.m., the FURA boat approached the Puerto Real buoy, located about one and a half miles from shore. In the vicinity of this buoy, Irizarry and Agosto observed a vessel heading west to east. They confirmed the sighting by radar and slowed down to watch the vessel's approach. Soon, the ship radioed the FURA launch, identified itself as the CATU, and inquired if it was heading in the right direction for Puerto Real. Irizarry responded affirmatively, identified himself as the police, and expressed his intention of pulling alongside in order to check the CATU's documentation. Using a variable range marker, he also determined that the boats were roughly 1.5 miles from land.

After the document inspection, Agosto, acting on Irizarry's orders, radioed the Narcotics Division of the San German police. He asked an officer on duty, Lopez, to request authorization from the United States Customs Service to allow the FURA team to board the CATU. Lopez telephoned the federal customs office immediately, relaying the request to Pacheco, an agent on duty that night. Pacheco referred the matter to William Jimenez, the supervisor of the Customs Service's air smuggling group and the principal coordinator of FURA activities. After studying the situation, Jimenez granted permission to board. ²

Irizarry and his men then boarded and searched the CATU. During the search, Agosto found approximately 65 kilograms of cocaine secreted behind a load of air-conditioner parts in a hard-to-reach compartment. Anglada, Victoria, and two of their shipmates, Sosa and Lora, were arrested. Upon initial interrogation, Anglada made a series of highly incriminating statements.

Eventually, Sosa and Lora became government witnesses. Appellants stood trial and were convicted on both counts. They now appeal. Finding, as we do, that their myriad arguments are no more fortunate than their quest for meteorological advice, we affirm the judgments below.

II. FOURTH AMENDMENT ISSUES

The defendants contend that the evidence seized during the search, as well as Anglada's subsequent inculpatory statements, should have been suppressed. They posit three grounds for suppression: (1) the evidence did not support a finding that the search took place at a border; (2) as a matter of law, the members of the FURA team could not act as customs agents; and (3) as a matter of fact, the officers were not authorized so to act. We find this asseverational array to be unconvincing in all its aspects.

A. Border Searches.

It is axiomatic that warrantless searches are per se unreasonable unless they fall within a recognized exception to the warrant requirement of the fourth amendment. It is equally well established that border searches constitute such an exception and are reasonable "by the single fact that the person or item in question had entered into our country from outside." United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617 (1977).

The sea boundary of United States territory is a marine league (three geographic miles) from shore, Cunard S.S. Co. v. Mellon, 262 U.S. 100, 122, 43 S.Ct. 504, 507, 67 L.Ed. 894 (1923), and comprises a border for fourth amendment purposes. See United States v. Zurosky, 614 F.2d 779, 787 n. 7 (1st Cir.1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826 (1980); see also United States v. Stanley, 545 F.2d 661, 666 n. 6 (9th Cir.1976), cert. denied, 436 U.S. 917, 98 S.Ct. 2261, 56 L.Ed.2d 757 (1978). Because it is not practical to set up checkpoints at the outer perimeter of a country's territorial waters, courts have consistently recognized the constitutionality of warrantless searches at the functional equivalent of the sea border, see, e.g., United States v. MacPherson, 664 F.2d 69, 72 n. 2 (5th Cir. Unit B Dec. 1981) (three and one half miles from shore is functional equivalent of border); United States v. Tilton, 534 F.2d 1363, 1365-66 (9th Cir.1976) (harbor as functional equivalent of border); see generally Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 2539-40, 37 L.Ed.2d 596 (1973), as long as those searches satisfy the constitutional requirement of reasonableness.

Beyond the three mile limit, Congress has designated the "customs waters" of the United States, 19 U.S.C. Sec. 1401(j) (1988), and authorized federal customs officers to search vessels within those waters, i.e., within twelve miles of shore:

Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs water or, ... at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, truck, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.

19 U.S.C. Sec. 1581(a) (1988). A border search conducted pursuant to section 1581(a) is one of the approved exceptions to the warrant requirement of the fourth amendment. Zurosky, 614 F.2d at 787. While it is uncertain what the geographic limits of a seagoing border search may be, the assumption most favorable to appellants is that the evidence must support a finding that the vessel crossed into territorial waters in order to uphold a governmental incursion as a border search. Id. at 787-88. ³

Here, the trial court determined that the CATU was within territorial waters when it was hailed. We review such a finding under the clearly erroneous rule. See, e.g., United States v. Aguirre, 839 F.2d 854, 857 (1st Cir.1988) (factfinding on suppression motion subject to clear-error review); United States v. Figueroa, 818 F.2d 1020, 1024 (1st Cir.1987) (same). The evidence was in some disarray. Irizarry, for example, testified that the boats were 1.5 miles from shore (well within the territorial limit) and substantiated this statement by reference to his use of the variable range marker. Sosa, on the other hand, testified that the search of the CATU took place 6.5 miles from shore. Such sharp conflicts in the evidence are grist for the trial court's mill. Given the ample evidentiary predicate, we cannot say that the court below erred in finding that the two boats were only 1.5 miles from shore when the boarding occurred or in ruling that the search took place at the functional equivalent of a border.

B. Legality of Designation.

Appellants' second contention is that, as a matter of law, the FURA officers could not be designated as customs officers and, therefore, could not conduct a border search. 19 U.S.C. Sec. 1401(i) (1988) defines "customs officer" in connection with searches conducted pursuant to section 1581(a) as:

[A]ny officer of the United States Customs Service of the Treasury Department ... or any commissioned, warrant, or petty officer of the Coast Guard, or any agent or other person authorized by law or designated by the Secretary of the Treasury to perform any duties of an officer of the Customs Service.

19 U.S.C. Sec. 1401(i) (emphasis supplied). On its face, then, the statute provides that any person may act as a customs officer, subject only to the limitation of proper delegation. What scant case law there is mirrors this commonsense reading of the statute's plain language. See, e.g., United States v. Thompson, 475 F.2d 1359, 1362 (5th Cir.1973) ("By a series of proper delegations, border patrol officers...