People v. Nissen

• Citation: 97 Misc.2d 1000,412 N.Y.S.2d 999
• Parties: The PEOPLE of the State of New York v. Paul NISSEN and Alan Van Horn, Defendants.
• Decision Date: 31 January 1979
• Court: United States State Supreme Court (New York)

Page 999

412 N.Y.S.2d 999

97 Misc.2d 1000

The PEOPLE of the State of New York v. Paul NISSEN and Alan Van Horn, Defendants.

Supreme Court, Criminal Term, Suffolk County, Part II.

Jan. 31, 1979.

Patrick Henry, Dist. Atty. of Suffolk County, Riverhead, for People; John E. Holownia, Hauppauge, of counsel.

Charles L. Weintraub, New York City, for defendant Nissen.

Gerald B. Lefcourt, New York City, for defendant Van Horn.

JOSEPH JASPAN, Judge.

The defendants are charged with criminal possession of approximately 14,000 pounds of marijuana (P.L. 221.30) which was found aboard a large sailboat of foreign registry manned by them and was at the time moving in a westerly direction just north of Gardiners Island within the territorial waters of the United States.

They seek to dismiss the one count indictment on the ground that their vessel was in distress and only seeking a safe harbor at the time it was boarded and seized and was therefore immune from such action and consequential prosecution.

In the alternative, the defendants urge that, in any event, the boarding and search without a warrant constituted a violation of their Fourth Amendment rights and that 14 U.S.C. § 89(a) under which the Coast Guard presumed to act is unconstitutional.

Facts

The following is a summary of the events surrounding the search and seizure of the Scott Bader on October 2, 1978 based upon the testimony given before the Grand Jury by a number of witnesses including the defendant Nissen and upon the moving papers of the defendants.

At approximately 6:00 p. m. on October 2, 1978 the Coast Guard cutter Point Wells left on a law enforcement patrol from Montauk Point, Long Island. At approximately 7:25 p. m. Executive Petty Officer Keller saw the silhouette and red (port, leftside) running light of a large sailboat heading in a westerly direction. Thereafter, the cutter moved closer and by observation determined that it was the "Scott Bader" from Cayman Islands, British Bahamas. At this time it was also noted that the vessel was riding heavy in the water although a blue water line was spotted periodically through the waves. The Point Wells then moved off to the Scott Bader's starboard quarter from which point it appeared that neither the green starboard or the masthead lights were visible and that the stern light was extremely dim.

Keller testified that these running lights are important to navigation so that approaching vessels may determine which side they are looking at and what action to take or direction to travel. Keller also testified that without lights emanating from starboard you cannot, without artificial light, determine the identity of the boat.

A determination was then made to board the Scott Bader, which was under both power and small sail. The Point Wells identified itself and told the occupants to prepare to be boarded.

At that time, the Scott Bader was .6 miles from the Gardiners Island ruins and approximately 1.8 miles north of Gardiners Island Point itself.

Gardiners Island is located within Suffolk County in the waters between Montauk and Orient Point astride the entrance to Gardiners Bay and Peconic Bay.

After hailing the Scott Bader, the cutter throttled back and got into position for the boarding. Nissen was on deck at this time. Keller identified himself and said that he was coming aboard to see if he complied with the federal law. Nissen asked, "Is this a safety inspection?" and Keller answered, "Well, I want to see if you have complied with all of the federal law pertaining to equipment and paper".

At the time of the boarding, the Scott Bader was 1.1 miles southwest of the ruins and 1.6 miles northwest of Gardiners Island Point. The testimony indicates that it was headed to Cherry Harbor (apparently Cherry Hill Point) located on the west side of Gardiners Island.

Upon boarding, Nissen identified himself as the skipper and was asked for his documents. Nissen went forward to the cabin and Keller remained at the cabin entrance. While standing near the cabin entrance, Keller noticed the strong aroma of what he believed to be marijuana. (Keller also testified to his expertise in the field of narcotics.) Nissen got the documentation, and as it was dark outside suggested that Keller come below and use the light on the chart table. Thereafter, as Nissen went to get identification papers, Keller observed 12 to 15 rectangular burlap bales. When Nissen returned he was given his Miranda warnings by Keller who then cut open a burlap sack and the underlying plastic and found marijuana. Nissen was arrested. Subsequently, Van Horn, who was also aboard, was arrested and given his Miranda warnings. The Scott Bader was taken to Montauk Station where 304 bales of marijuana were unloaded and delivered to the Drug Enforcement Agency who subsequently turned them over to the Suffolk police.

Defendants contend, however, that this safety stop was nothing more than a pretext and that the evidence in this case was obtained by law enforcement officials whose only purpose in boarding defendants' vessel was to look for narcotics violations. Defendants' position is that the Coast Guard did not immediately board but kept defendant's vessel under continuous surveillance for a period of approximately twenty-five minutes until they communicated with the Drug Enforcement Agency and learned that at some time in the past defendants' vessel had appeared on a "Hot" list of vessels suspected of being used to transport contraband. It is alleged that upon boarding defendants' vessel, these officers began an extensive and highly intrusive search of the vessel and that the search and the inquiries directed to the defendants were in no way connected with a safety and document inspection.

The Safe Harbor Theory

A foreign vessel has the right to enter the territory of a state when such entry is necessary for the safety of the vessel or persons aboard and to leave the territory once the conditions that made the entry necessary have ceased to exist (Restatement of the Law 2d Foreign Relations Law of the United States, Section 48).

This right of entry for reasons of Force majeure entitles the foreign vessel to claim, as of right, an entire immunity from the local jurisdiction (The Law of Territorial Waters and Maritime Law as published by Jennings Co., Inc., New York, 1927; republished by Kraus Reprint Co., New York, 1970).

No importation occurs within the meaning of the duty statutes "where goods are brought by superior force or by inevitable necessity into the United States". The Brig Concord, 9 Cr. 387, 388, (13 U.S.) 3 L.Ed. 768 (1815).

The necessity must be urgent and not merely a matter of convenience and the entry must be bona fide and made without intent to evade the laws of the host state (The New York, 3 Wheat. 59 (16 U.S. 59) 4 L.Ed. 333 (1818); Latham v. United States, 2 F.2d 208 (4th Cir., 1924)).

A factual issue is presented by the claim of the defendants that they required a safe harbor. The parties agree that this threshold question of jurisdiction should be presented to the trial jury for resolution within the framework of the rules set forth above.

However, before reaching that area of dispute, there must be a determination of the search and seizure questions raised by this motion.

For the purpose of setting forth the applicable principles, the Court has adopted the fact pattern evident in the Grand Jury minutes and defendants' papers. These are not formal findings of fact because no hearing has been held and to the extent they are contested, the parties will be given the opportunity to present evidence and argue the legal consequences of that presentation.

The Search and Seizure

The defendants urge that 14 U.S.C. § 89(a) is unconstitutional since it permits the Coast Guard, without a warrant, to "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".

A State Court of general jurisdiction may rule upon the constitutionality of a Federal statute. Larkin v. G. P. Putnam's Sons, 14 N.Y.2d 399, 252 N.Y.S.2d 71, 200 L.Ed.2d 760; Central Savings Bank in City of New York v. City of New York, 280 N.Y. 9, 19 N.E.2d 659, cert. den.306 U.S. 661, 59 S.Ct. 790, 83 L.Ed. 1058; Lewis v. American Federation of Television and Radio Artists, 71 Misc.2d 253, 336 N.Y.S. 256, mod. on other grounds, 34 N.Y.2d 265, 357 N.Y.S.2d 419, 313 N.E.2d 735, cert. denied 419 U.S. 1093, 95 S.Ct. 688, 42 L.Ed.2d 687.

They contend that the recent decision in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305, precluding a warrantless administrative search of a non-public work area of an employment facility (OSHA) sets a new standard and is controlling under the operative facts in this case.

But the very language of the Supreme Court opinion indicates that the rule in Marshall is not universal in its application to administrative searches. The opinion includes this telling language:

"The reasonableness of a warrantless search, however, will depend upon the specific enforcement needs and privacy guarantees of each statute."

The Fourth Amendment protects people, not places (Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576) and the expectation of privacy must be reasonable and justifiable. (Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325.)

The interaction of many variables determines the reasonableness of the search, United States v. Ivey, 546 F.2d 139, cert. denied Sub nom. Taglione v. United States, 431 U.S. 943, 97 S.Ct. 2662, 53 L.Ed.2d 263. Thus the nature and limit of the intrusion, Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, the extent of the public interest, United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607, the exigencies of the situation, Katz v. United...