U.S. v. Alfonso
| Decision Date | 01 May 1985 |
| Docket Number | Nos. 83-5164,s. 83-5164 |
| Parties | 18 Fed. R. Evid. Serv. 1398 UNITED STATES of America, Plaintiff-Appellee, v. Serafin ALFONSO, Humberto Rayo, Fabian Mora, Primo Antonio Serrano-Tellez, Defendants-Appellants. to 83-5167. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jeffrey L. Russell, Los Angeles, Cal., for plaintiff-appellee.
Richard G. Sherman, Los Angeles, Cal., for Alfonso.
David E. Moch, Los Angeles, Cal., for Rayo.
Michael D. Abzug, Los Angeles, Cal., for Mora.
Yolanda Bsrrera Gomez, Dep. Federal Public Defender, Los Angeles, Cal., for Serrano-Tellez.
Appeal from the United States District Court for the Central District of California.
Before TUTTLE, Senior Circuit Judge, * and HUG and POOLE, Circuit Judges.
Appellants Serafin Alfonso, Humberto Rayo, Fabian Mora and Primo Antonio Serrano-Tellez appeal their convictions of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846, and possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). Serrano-Tellez also appeals his conviction of importation of cocaine, in violation of 21 U.S.C. Sec. 952(a). The district court denied motions to suppress evidence by Rayo, Mora, and Serrano-Tellez. Alfonso objects to the admission of a Drug Enforcement Administration Agent's testimony concerning a conversation between the agent and Alfonso in 1978.
For reasons set forth below, we affirm the convictions of Rayo, Mora and Serrano-Tellez. We reverse Alfonso's conviction.
In late January, 1983, a confidential informant told Los Angeles Police Department detectives that the vessel Ciudad de Santa Marta ["Santa Marta"] of the Gran Colombian Shipping Lines would soon arrive in Los Angeles Harbor carrying a large quantity of cocaine, which would be offloaded by Colombian nationals. The informant added that an organization which had smuggled cocaine from a Gran Colombian freighter in San Francisco earlier in January was involved in the Santa Marta operation. A federal wiretap in San Francisco also indicated a connection between the San Francisco and Los Angeles Gran Colombian smuggling operations.
As a result of this information, a task force was formed, consisting of the Los Angeles City Police and County Sheriff's Departments, the Federal Bureau of Investigation, the Drug Enforcement Administration, the Customs Service, the Coast Guard, and the Los Angeles Port Warden's Office. When the Santa Marta docked in Los Angeles Harbor at about 1:30 p.m. on January 28, 1983, the task force began surveillance of the ship. At approximately the same time, Customs Inspector Michael Craig conducted a cursory customs search of the Santa Marta, limited to inspection of the ship's documents. Five inspectors accompanied Inspector Craig, one of whom conducted an immigration inspection, while another performed an agricultural inspection.
In the early evening hours of January 28, 1983, Serrano-Tellez and another man left the Santa Marta and walked to a nearby restaurant. Shortly thereafter, Alfonso arrived by car with Rayo and Mora. Serrano-Tellez and his companion entered the car and drove to the Queen City Motel. All defendants entered room 60. Two hours later, Rayo went to room 66, and Mora went to one of two other rooms rented by Alfonso.
On January 29, Mora drove Serrano-Tellez from the motel back to the Santa Marta. Mora returned to the Queen City Motel and to room 60. That afternoon, he placed scuba tanks and a wet suit in an automobile and drove to the Santa Marta. After picking up Serrano-Tellez at the ship, Mora drove to the Cabrillo Beach public boat ramp, where he and Serrano-Tellez were observed making gestures toward the Santa Marta. Mora then drove Serrano-Tellez back to the ship and returned to room 60 of the motel. He later left room 60, removed a package from Alfonso's car and placed it in another automobile, looking around guardedly as if to detect surveillance. Mora and two companions later stopped at the Surf Motel en route to a sporting goods store, where they purchased fishing poles. They then drove to the Cabrillo Beach boat ramp. At the boat ramp, Mora put on the scuba gear, entered the water, and swam out toward the Santa Marta until he was beyond surveillance. Surveilling agents did not witness his return.
Meanwhile, on January 29, cargo was loaded aboard the Santa Marta, and several vendors boarded the ship to sell merchandise. That afternoon, two men boarded the Santa Marta and left the ship a short time later carrying a box. Law enforcement officials stopped them. A search of their vehicle unearthed forty pounds of cocaine. About 6:00 p.m., two women who departed the ship carrying duffel bags were searched. Seventeen pounds of cocaine were seized. Later in the evening, customs agents stopped and seized cocaine from yet another individual who had boarded the Santa Marta, left it shortly, and had driven away.
Near midnight on January 29 under Customs direction, law enforcement officers from several agencies boarded the Santa Marta to conduct a thorough search of the ship. Two customs agents and an FBI agent went to cabin 642, occupied by Serrano-Tellez. Search of his cabin unearthed a duffel bag and a zipper bag tied together with a long rope under a set of bunk beds. Inside the bags were packages of cocaine wrapped in plastic.
About 6:30 a.m. on January 30, Los Angeles police officers went to room 60 of the Queen City Motel. Alfonso opened the door. The officers searched a piece of luggage in the room and found $58,720.00 in currency, identification cards in Alfonso's name, and a wallet with identification papers of Mora. In Alfonso's wallet officers found $2,200.00, a paper bearing the name "Antonio Tellez S.," and a business card identical to the one found in Mora's wallet. Alfonso's explanation of the funds was that he was a gambler. Surveillance had observed Alfonso attending a professional boxing match the day before. No contraband was found in Alfonso's room.
With drawn guns the officers then knocked on the door of room 66. When Rayo answered, they identified themselves as police, arrested him, and searched the room for weapons or other persons. After holstering their guns, they asked Rayo for permission to search his luggage. Rayo agreed, stating that he "had nothing to hide" and "had come here to gamble." The officers found more than $42,000.00 in currency in a suitcase, $1,200.00 in his pants and a paper which they identified as a "pay/owe" sheet used in narcotics trafficking.
Later on the morning of January 30, the Los Angeles Police Department received a telephone call from the manager of the Surf Motel stating that someone wearing a wetsuit had come to the motel and requested another key to room 3. Police officers promptly went to room 3 and knocked on the door. It partially opened, revealing Mora and two other men. The officers told Mora that he was under arrest. After hearing a noise coming from the bathroom, the police ordered the unknown occupant out of the bathroom, and Alicia Garcia emerged. The officers then conducted a warrantless sweep of the room, during which they discovered scuba gear, a wetsuit, a rental receipt for that equipment, and a drawing of a ship.
We now consider the appellants' several claims of error.
Serrano-Tellez asserts that the district court should have granted his motion to suppress the evidence discovered in his cabin aboard the ship. He insists that the search of the ship beginning near midnight on January 29, approximately 36 hours after it had docked, cannot be considered a border search for two reasons: conditions aboard the Santa Marta had changed between the time the ship docked and the time of the search, and law enforcement agents other than Customs agents participated in the search. Serrano-Tellez also argues that even if the search is deemed a proper border search, the search of his private living quarters on the ship was unreasonable under the Fourth Amendment.
Border searches are unique in the law of search and seizure. The mere entry into the United States from a foreign country provides sufficient justification for a border search. Klein v. United States, 472 F.2d 847, 849 (9th Cir.1973). As the Supreme Court has observed,
a port of entry is not a traveler's home. His right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search.
United States v. Thirty Seven Photographs, 402 U.S. 363, 376, 91 S.Ct. 1400, 1408, 28 L.Ed.2d 822 (1971). Consistent with the right of a sovereign to protect itself, United States v. Ramsey, 431 U.S. 606, 616, 97 S.Ct. 1972, 1978, 52 L.Ed.2d 617 (1977), travelers entering the country may be required to identify themselves, show their entitlement to come in, and identify their belongings as lawfully admissible. Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925).
The Constitution empowers Congress "[t]o regulate commerce with foreign nations," U.S. Const. art. I, Sec. 8, cl. 3; border searches thus raise different considerations and call into play rules of law distinct from other searches. United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 125, 93 S.Ct. 2665, 2667, 37 L.Ed.2d 500 (1973). The primary purpose of a border search is to seize contraband property sought to be brought into the country. Alexander v. United States, 362 F.2d 379, 382 (9th Cir.), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439 (1966). To this end Congress has given Customs agents broad authority to search upon entry into the United States vehicles and persons, as well as personal effects, where they suspect the presence of merchandise subject to...
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