Blair v. U.S.
| Decision Date | 30 November 1981 |
| Docket Number | Nos. 80-5207,s. 80-5207 |
| Citation | 665 F.2d 500 |
| Parties | Robert D. BLAIR, Appellant, v. UNITED STATES of America, Appellee. Charles L. MOORE, Appellant, v. UNITED STATES of America, Appellee. William G. DODDS, Jr., Appellant, v. UNITED STATES of America, Appellee. to 80-5209. |
| Court | U.S. Court of Appeals — Fourth Circuit |
J. Flowers Mark, Alexandria, Va. (William B. Moffitt, Barry Wolf, Mark & Moffitt, P.C., John Kenneth Zwerling, Jonathan Shapiro, Zwerling & Shapiro, Alexandria, Va., Robert G. Fierer, Atlanta, Ga., Myron L. Wolfson, Towson, Md., on brief), for appellants.
Paul R. Kramer, Deputy U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., on brief), for appellee.
Before PHILLIPS, MURNAGHAN and ERVIN, Circuit Judges.
Robert D. Blair, Charles L. Moore, Jr., and William G. Dodds, Jr. were convicted of traveling in interstate commerce with the intent to further unlawful activity, possessing and conspiring to possess marijuana with the intent to distribute, importing and conspiring to import marijuana, and aiding and abetting, in violation of 18 U.S.C. § 1952, 21 U.S.C. §§ 841(a)(1), 846, 952, and 963, and 18 U.S.C. § 2. The district court sentenced all three defendants to five years on each count, the sentences to run concurrently. The defendants assign as error the district court's denial of their motion to suppress evidence of the marijuana. Additionally, Blair charges that the district court abused its discretion and denied him due process in sentencing him. We affirm the defendants' convictions and the sentence imposed upon Blair.
In the early morning hours of April 29, 1979, Sergeant Hutchinson and another officer of the Charles County, Maryland, sheriff's department arrived at Smith Point on the Potomac River, an area previously used as a drop-off for smuggled drugs, to check into a report that suspicious looking vehicles had been spotted there. They discovered a parked truck, a van, what appeared to be marijuana residue in the van, CB equipment, diesel fuel, a generator, a vacuum cleaner, a tarp, a handtruck, an extension cord, a lamp, a locked trunk, wire, and indentations in the sand apparently made by people running, all of which led them to initiate a drug investigation.
As it grew light, the officers noticed a thirty-one foot sailboat off shore, and, after observing a crew member tossing something overboard, they had the sheriff's department instruct the Maryland marine police to board the vessel in connection with the drug investigation underway. The seizure and search of that vessel-not challenged here-turned up no contraband.
Customs officer Bass, who had been advised to contact the sheriff's department about the investigation and was therefore present at the boat, along with customs officer Jungerfeld, then received a call from a previously reliable informant regarding another suspect vessel. The informant, who knew of the suspicious vehicles found earlier that day at Smith Point, claimed to have seen a three masted, fifty to sixty foot sailboat with five persons on board and riding low in the water, in the area near Smith Point. The customs officers, accompanied by Maryland marine police officers Sciukas and Furey and by Sergeant Hutchinson, set out on the Potomac in a Boston Whaler owned by the marine police to intercept the vessel.
Although aided by a state police helicopter, the officers did not discover any three masted boats. The helicopter patrol, however, had spotted two two masted sailboats, one thirty to forty feet long and the other a fifty foot Morgan. After receiving word that the informant upon reconsideration thought that the boat he saw might have only been two masted and that it was white with a black stripe and had a dinghy in tow, the officers decided to "check out" both vessels.
The officers first motored over to the smaller boat, only to learn that a family known to one of them was aboard. They then headed for the fifty foot Morgan, and, after observing that it appeared to be heavily loaded and after checking the area for other boats of similar description and finding none, they approached it. Their observations were that the boat, named the CENTAURUS, was riding low in the water, that it was white and had two masts and three sails and was towing a dinghy, that the vessel's letters were not properly displayed, and that there appeared to be three men on board.
As the officers' Whaler closed in upon the sailboat, Sergeant Hutchinson stood in the front, holding a shotgun, and, when the Whaler pulled alongside the CENTAURUS, one of the individuals on board raised his hands and exclaimed, "Don't shoot; we are unarmed; we don't have any guns; you have got us."
Sergeant Sciukas immediately started to climb onto the CENTAURUS, and, as he stood on the edge of the Whaler in preparation for boarding with his head and shoulders above the cockpit of the CENTAURUS, he smelled "a very heavy odor of marijuana." When he stepped into the CENTAURUS' cockpit, he could see what he described as bales inside two open hatches. Customs officer Jungerfeld then boarded it, and he too smelled the aroma of marijuana and saw burlap covered bales. Customs officer Bass upon boarding spotted marijuana residue scattered on top of some of the bales and also saw what appeared to be marijuana in a small open container in the galley area. Sergeant Hutchinson then arrested the crew of three, Blair, Moore, and Dodds; customs officer Bass requested the boat's documentation in order to determine if the boat was involved in smuggling; and the boat was searched for other individuals.
The CENTAURUS was taken to the Naval Ordinance Station at Indian Head, Maryland, where it was kept until the next day, when the marijuana was unloaded. The marijuana had been packaged in cardboard boxes, some of which had also been wrapped in burlap and secured by tape. Either prior to or during the unloading, however, some of the packages had split and broken open, revealing their contents. After the unloading had been completed, Drug Enforcement Administration (DEA) agents, without having secured a warrant, opened some of the packages for sampling purposes.
Subsequent to their indictment, the defendants moved to suppress the evidence of the marijuana as well as film found aboard the CENTAURUS. After conducting an evidentiary hearing, the magistrate recommended denial of the motion to suppress the evidence except for the film. Upon review of the magistrate's findings and conclusions, the district court denied the motion in total, and the defendants were subsequently convicted and sentenced.
On appeal the defendants strenuously argue that the marijuana 1 should have been suppressed on two grounds: (1) that the seizure and search of the CENTAURUS was unlawful, and (2) that the opening of the boxes of marijuana after the CENTAURUS had been unloaded constituted an illegal search. We explore in turn each of these grounds for suppression.
The government contends that the seizure and boarding of the CENTAURUS were lawful upon a theory either that the customs officers and marine police had statutory authority to stop and board a vessel, or that the seizure and boarding were reasonable, and hence constitutional, under the fourth amendment. The subsequent search of the CENTAURUS was legal, it asserts, because Sergeant Sciukas' recognition of the pungent odor of marijuana while climbing on board the CENTAURUS supplied probable cause for the search and because the mobility of the vessel created exigent circumstances excusing the acquisition of a warrant. We find lawful the initial stop of the CENTAURUS and agree that the warrantless search was legal because the officers had probable cause and faced exigent circumstances at the time it occurred.
The justification for the seizure and search of the CENTAURUS lies in both the statutory powers of the customs officers and state marine police and the reasonableness of the seizure and search under the fourth amendment. These sources of authority are not separate, however, as the government would seem to suggest, but are instead interrelated. The applicable statutes vested the officers with the authority to stop and search the boat. The fourth amendment's requirement of reasonableness, however, limited their statutory authority in these circumstances to that of making a brief investigatory stop upon a reasonable suspicion of illegal activity and searching the boat only upon probable cause.
The statutory authority of customs officers to stop, board, and search a vessel is found in 19 U.S.C. § 1581(a), which reads in pertinent part:
Any officer of the customs may at any time go on board of any vessel ... at any place in the United States or within the customs waters ... and examine the manifest and other documents and papers and examine, inspect, and search the vessel ... and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel ... and use all necessary force to compel compliance.
Maryland marine police officers' statutory authority to stop, board, and search a vessel is similarly broad; Md.Nat.Res.Code Ann. § 8-727 (1974) reads:
A natural resources police officer or any law enforcement officer enforcing the provisions of this subtitle (the State Boat Act) may stop, board, or inspect any vessel subject to this subtitle. 2 By their terms, these statutes appear to grant customs officers and the Maryland marine police and other state law enforcement officers unfettered authority to stop and search a vessel. The statutory language must be read, however, in light of the fourth amendment's requirement that seizures and searches be reasonable, 3 for no statute can authorize a violation of the Constitution. See Almeida-Sanchez v. United States, 413 U.S. 266, 272,...
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