U.S. v. Bennett

• Decision Date: 09 April 2004
• Docket Number: No. 02-50442.,02-50442.
• Citation: 363 F.3d 947
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vincent Franklin BENNETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 947

363 F.3d 947

UNITED STATES of America, Plaintiff-Appellee, v. Vincent Franklin BENNETT, Defendant-Appellant.

No. 02-50442.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 10, 2003.

Filed April 9, 2004.

COPYRIGHT MATERIAL OMITTED

Martha M. Hall, DiIorio & Hall, San Diego, CA, for the defendant-appellant.

Carol C. Lam, United States Attorney, Michael F. Kaplan, United States Attorney's Office, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Manuel L. Real, District Judge, Presiding. D.C. No. CR-00-00655-MR.

Before: FISHER and BYBEE, Circuit Judges, and MAHAN, District Judge.^*

FISHER, Circuit Judge:

This case arises from the boarding and search of defendant-appellant Vincent Franklin Bennett's boat by members of a joint task force targeting smuggling activity from Mexico into Southern California. Coronado Police Officer Keith James initially spotted Bennett's boat near the U.S.-Mexico border on January 27, 2000, as the boat traveled north along the California coastline. Officer Sandy Joseph Sena, another task force member, boarded Bennett's boat at the entrance to San Diego Bay and eventually directed Bennett to dock his boat.

After the docking, members of the task force made multiple efforts over many hours to find drugs on Bennett's boat. When drilling three or four holes in the boat proved unproductive, they stored the boat overnight, hauled it to a Coast Guard facility the next day and x-rayed it. The x-ray revealed what turned out to be 1,541.5 pounds of marijuana.

Bennett was convicted on one count of importation of marijuana under 21 U.S.C. §§ 952 and 960, and one count of possession with intent to distribute marijuana under 21 U.S.C. § 841(a)(1). He was sentenced to 121 months of imprisonment for each count, to be served concurrently. At a pretrial hearing before District Judge Enright, the court denied Bennett's motions to suppress the fruits of the search of his boat and statements Bennett claimed were taken in violation of Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Bennett appeals those determinations, as well as evidentiary rulings and sentencing determinations that occurred during trial and sentencing, which were presided over by District Judge Real. We conclude that the marijuana on Bennett's boat was seized pursuant to a valid border search, and therefore affirm his possession conviction. However, we conclude that improperly admitted testimony at trial requires reversal of Bennett's importation conviction. We also remand for resentencing.

I.

Officer James was the first task force member to see Bennett's boat. James was positioned on Point Loma, which is on the far west end of Coronado, a peninsula that juts out into the Pacific Ocean from the San Diego area. From Point Loma, James trained his high grade binoculars toward the U.S.-Mexico border. He never actually saw Bennett's boat cross the border. Rather, James first spotted the boat south of the Imperial Beach pier, north of the border. The boat was heading north, traveling quickly and hugging the coastline. James notified other members of the task force when the boat reached the entrance to San Diego Bay, in accordance with the task force's regular procedure for boats spotted near the border.

Officer Sena of the U.S. Coast Guard received James' call about Bennett's boat and led a team aboard at the entrance to San Diego Bay. Sena intended to ensure compliance with federal regulations for the vessel's size and type. Once on board, Sena encountered two peculiarities. First, the boat registration number on the paperwork Bennett provided did not match the number on his boat. When told of this discrepancy, Bennett stated that he owned two very similar boats and had mixed up the paperwork. Second, Sena learned of an outstanding state warrant for Bennett's arrest. Sena then directed Bennett to take his vessel to the police dock where, he told Bennett, boarding would continue.

While en route to the police dock, Sena encountered additional peculiarities on Bennett's boat. The boat was riding low in the water, so much so that its swim platform was submerged. It also had a new, high performance engine and some space for which Sena could not account. Upon arrival at the police dock, Sena confirmed the warrant for Bennett's arrest and then turned him over to a harbor police officer. As Bennett was taken away for further questioning, officers began a thorough search of his boat that would eventually culminate in the discovery of the marijuana stashed aboard.

Bennett filed a pretrial motion to suppress the marijuana, arguing that various aspects of the search violated his Fourth Amendment rights. After an evidentiary hearing, Judge Enright denied Bennett's motions, finding that the search was justified as a border search because of the peculiarities Sena observed. We review de novo a district court's determination of the legality of a search. See United States v. Tarazon, 989 F.2d 1045, 1048 (9th Cir. 1993).¹

A.

We first consider whether the border search doctrine applies to this case. The government has broad authority to conduct searches of vessels at the functional equivalent of the border, but only if its agents are reasonably certain that a vessel and its contraband contents have crossed the border. See United States v. Dobson, 781 F.2d 1374, 1376 (9th Cir.1986); United States v. Espericueta Reyes, 631 F.2d 616, 619 (9th Cir.1980). The "reasonably certain" standard is higher than a probable cause standard, see United States v. Kessler, 497 F.2d 277, 279 (9th Cir.1974), but agents need not have observed a vessel cross the border in order to be reasonably certain that it did, see Dobson, 781 F.2d at 1376.

The initial stop of Bennett's boat occurred at the entrance to San Diego Bay. We have previously held that if law enforcement officials are reasonably certain that a vessel sailed from outside U.S. territorial waters, then a search of that vessel at a U.S. dock or in U.S. waters is considered to be at the functional equivalent of the border.² Dobson, 781 F.2d at 1377 & n. 4. That is the circumstance here. Although no agent was actually certain that Bennett crossed the border, spotting a boat heading north from the direction of Mexico, hugging the coastline, supports finding a reasonable certainty of a border crossing. See United States v. Potter, 552 F.2d 901, 907 (9th Cir.1977) (holding absolute certainty is not required). Therefore, because the entrance to San Diego Bay is in U.S. territorial waters, the search of Bennett's boat occurred at the functional equivalent of the border. A contrary conclusion would hinder sensible border patrol efforts, because vessels travel quickly and in paths not delineated by roads or visible borders. See United States v. Tilton, 534 F.2d 1363, 1365 (9th Cir.1976) ("[I]t is not practical to set up checkpoints at the outer perimeters of the territorial waters."). Here, although James could not see Bennett's boat cross the imaginary demarcation line between the United States and Mexico, his vantage point on the western-most tip of Coronado enabled him to be reasonably certain that the boat he saw came from Mexican waters. Because "the stop occurred at the functional equivalent of a border[] and was supported by a firm belief that [Bennett's boat] had come from [Mexican] waters," the border search doctrine applies. Dobson, 781 F.2d at 1377.

B.

We next consider whether the border search doctrine justifies the search the officers conducted. Recently, the Supreme Court held that the government may conduct a suspicionless border search of a car's gas tank, explaining that most border searches involving vehicles do not require any articulable level of suspicion. United States v. Flores-Montano, ___ U.S. ___, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004). "[T]he reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person — dignity and privacy interests of the person being searched — simply do not carry over to vehicles." Id. at ___, 124 S.Ct. 1582. Especially destructive searches of property, however, may require reasonable suspicion. See id. at ___, 124 S.Ct. 1582 ("While it may be true that some searches of property are so destructive as to require a different result, [the search of the gas tank in Flores-Montano's car] was not one of them."). Extended border searches, which occur well after an actual entry and therefore intrude more on an individual's normal expectation of privacy, do require reasonable suspicion. See United States v. Alfonso, 759 F.2d 728, 734 (9th Cir.1985) (upholding under extended border search analysis the search of a boat some 36 hours after it crossed the border).

Even assuming that the search of Bennett's boat was especially destructive or extended — and therefore arguably unconstitutional absent reasonable suspicion — it was permissible under the Fourth Amendment.³ In reaching the same conclusion at the pretrial hearing, Judge Enright relied on the officers' observations of:

the disparity and the spacial confirmation and configuration of the vessel, the defendant's inconsistent story, the fact that the [boat's] identification numbers did not correspond with the papers that were presented to the officials and the fact that the boat did show that it was riding low in the water under various circumstances which were specifically described by the witnesses.

The record supports these findings, which constitute reasonable suspicion. See, e.g. Bravo, 295 F.3d at 1008. Therefore, the district court properly denied Bennett's motion to suppress the evidence found in his boat.⁴

II.

Although the legality of the border search justifies Bennett's conviction for possession under 21 U.S.C. § 841, it does not dispose of Bennett's challenge to his illegal importation conviction under 21...