U.S. v. Cadena

• Decision Date: 16 January 1979
• Docket Number: No. 77-5395,77-5395
• Citation: 588 F.2d 100
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nino Rinsi CADENA, Pedro A. Ballesteros Esquebel, Gilberto Yepes Borjas, Cesar Dela Rosa, Narciso Barba Cadena, Daniel Garcia Gomez, Efrain Carreazo Cardales, Pedro Ruiz Arrieta, Jorge Lopez Wagner, Nicanor Rivera Diaz, Alajandro Valle Mantaress, Andres Gomez Ortega, and Francisco M. Ceba Bruno, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 100

588 F.2d 100

UNITED STATES of America, Plaintiff-Appellee, v. Nino Rinsi CADENA, Pedro A. Ballesteros Esquebel, Gilberto Yepes Borjas, Cesar Dela Rosa, Narciso Barba Cadena, Daniel Garcia Gomez, Efrain Carreazo Cardales, Pedro Ruiz Arrieta Jorge Lopez Wagner, Nicanor Rivera Diaz, Alajandro Valle Mantaress, Andres Gomez Ortega, and Francisco M. Ceba Bruno Defendants-Appellants.

No. 77-5395.

United States Court of Appeals Fifth Circuit.

Jan. 16, 1979.

Philip Carlton, Jr., Miami, Fla., Thomas A. Wills, for defendants-appellants.

Jack V. Eskenazi, U. S. Atty., Michael P. Sullivan, Asst. U. S. Atty., Miami, Fla., Mervyn Hamburg, Atty., Appellate Sect., Criminal Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

ON PETITION FOR REHEARING

Before SKELTON ^*, Senior Judge, FAY and RUBIN, Circuit Judges.

PER CURIAM:

On petition for rehearing petitioners have given us the opportunity to amplify and explain our holding regarding the warrantless search of the Labrador when probable cause existed several days prior to the search and there was obviously, in this interval, ample time to obtain a warrant. ¹

Although in this case the attempted flight of the vessel created exigent circumstances, which, coupled with the prior probable cause, justified the subsequent warrantless search, we are not unmindful that in most cases a vessel carrying an illegal cargo will endeavor to evade capture, thus creating exigent circumstances. Except for the type of boarding and search authorized by our en banc opinion in United States v. Warren, 5 Cir. en banc 1978, 578 F.2d 1058, ² the Coast Guard does not have plenary authority to search vessels on the high seas. When it has prior probable cause for the search sufficient to support a warrant, a warrant should be obtained; law enforcement officers should not rely on the possibility that the vessel will create, or that their attempt to apprehend it will provoke, exigent circumstances.

When dealing with automobiles we have said that the test for warrant-necessity must be applied when the search is made; granted probable cause and urgency at that moment, the prior ability to obtain a warrant is immaterial. See United States v. Mitchell, 5 Cir. en banc 1976, 538 F.2d 1230. This conclusion is supported by dicta in the majority opinion in Cardwell v. Lewis, 1974, 417 U.S. 538, 595, 94 S.Ct. 2464, 2472, 41 L.Ed.2d 325.

However, just as there are similarities in the mobility of automobiles and vessels, there are differences in their uses. Save for the ever-increasing number of vacation vehicles and mobile homes, motor vehicles are not designed to be used as residences. The ship is the sailor's home. There is hardly the expectation of privacy even in the curtained limousine or the stereo-equipped van that every mariner or yachtsman expects aboard his vessel.

Even as there is a greater expectation of privacy aboard a vessel,...