U.S. v. Cardona-Sandoval

Decision Date04 January 1993
Docket NumberCARDONA-SANDOVA,GOMEZ-OLART,D,ROJANO-RANGE,Nos. 92-1385,s. 92-1385
Citation6 F.3d 15
PartiesUNITED STATES of America, Appellee, v. Joaquinefendant, Appellant. UNITED STATES of America, Appellee, v. Alejandroefendant, Appellant. UNITED STATES of America, Appellee, v. Jorgeefendant, Appellant. to 92-1387. . Heard
CourtU.S. Court of Appeals — First Circuit

David W. Roman, San Juan, PR, by appointment of the Court, for appellant Joaquin Cardona-Sandoval.

Juan R. Acevedo-Cruz, Carolina, PR, by appointment of the Court, with whom Charles A. Rodriguez, Hato Rey, PR, was on brief, for appellants Jorge Gomez-Olarte and Alejandro Rojano-Rangel.

Jeanette Mercado-Rios, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., and Jose A. Quiles-Espinosa, Sr. Litigation Counsel, Hato Rey, PR, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

AMENDED OPINION

TORRUELLA, Circuit Judge.

This appeal involves the validity of a search of a vessel. Appellants Joaquin Cardona-Sandoval, Alejandro Rojano-Rangel, and Jorge Gomez-Olarte appeal their convictions of possessing cocaine with intent to distribute it in violation of 46 U.S.C.App. Sec. 1903(a), (b)(1), and (f). For the reasons that follow, we reverse the convictions.

I

The facts are set forth in the light most favorable to the government. Appellants Cardona-Sandoval (the captain), Rojano- Rangel and Gomez-Olarte (the crew), 1 were on board a forty-three foot sports-fisherman, Florida registration Number "FL 8304 EM" 2 allegedly on route from Colombia, South America to St. Maarten. All appellants are Colombian nationals.

On February 25, 1990, they were intercepted by the U.S.S. BIDDLE, a Navy destroyer. The U.S.S. BIDDLE was charged with boarding northbound vessels of less than four hundred feet as part of the government's drug interdiction program. Coast Guard officials aboard the U.S.S. BIDDLE were to conduct the boardings and investigations. 3

Following standard procedure, the U.S.S. BIDDLE attempted radio and loudspeaker communication with FL 8304 EM in both English and Spanish, but the vessel never responded. The U.S.S. BIDDLE then dispatched a six-member boarding party to conduct a document and safety inspection. The crew did not object to this inspection.

This initial boarding lasted approximately two hours. Two members of the boarding party guarded the captain and crew at the stern of the vessel while four others checked it for compliance with safety regulations. They also conducted a so-called space accountability search to ensure that the vessel was not compartmentalized secretly for smuggling. During the inspection, the captain, Cardona-Sandoval, stated that Roberto de Armas owned the vessel and that appellants were employed to bring the boat from Colombia to St. Maarten. The registration document, however, indicated that Luis Rodriguez owned the boat. Cardona-Sandoval claimed not to know Rodriguez.

As the space accountability search neared completion, one of the junior officers asked the senior officer leading the boarding party, Petty Officer William Ronald Spake, to personally inspect certain areas that appeared suspicious. The areas included a newly-constructed shower; several walls that appeared thicker than necessary, according to the petty officer's prior experience; and a large water tank. Spake indicated that the generally "messy" state of the boat made him suspicious, as well, but after two hours of searching, no contraband was discovered. He then cited vessel master Cardona-Sandoval with a minor violation--for producing a photocopy of the boat's registration rather than the original--and conferred with his superior aboard the U.S.S. BIDDLE, Lieutenant George Boyle. The two agreed that they had completed the space accountability search to the best of their ability. Lt. Boyle directed the boarding party to report back to the U.S.S. BIDDLE and, thereafter, the Coast Guard allowed appellants to continue their voyage.

That evening the boarding party and Lt. Boyle assembled for debriefing. The team made several observations: (1) that recent reconstruction had been done on the vessel; (2) that appellants were from a known drug source country; (3) that the sleeping cabins were in disarray, which suggested to the Coast Guard that the crew slept on the deck; (4) that the boat had been painted recently and the paint was peeling; and, (5) that the United States flag was not displayed as it should have been. In addition, one member of the party had become ill during the search, and the officer who replaced him failed to continue the search exactly where the other officer had left off. Lt. Boyle determined that the boarding party had failed to search adequately the space behind the medicine cabinet and the reconstructed shower area, and decided to reboard FL 8304 EM to complete the space accountability search. The record indicates a controversy regarding the real impetus for the second search. 4

In addition, sometime on February 25, 1990, Lt. Boyle learned: (1) that the El Paso Intelligence Center ("EPIC") indicated that the captain had been convicted of smuggling marijuana in 1984; (2) that FL 8304 EM was also known as the "Wicho" and was on the EPIC lookout list as possibly having hidden compartments for smuggling; and (3) that EPIC had information on both Roberto de Armas and Luis Rodriguez. Because Lt. Boyle failed to note or was unable to recall the exact time that he received the EPIC information, we do not know whether the Coast Guard possessed this information during the initial search.

On the morning of February 26, 1990, a Navy aircraft located the FL 8304 EM on a course 100 degrees different from the day before. The Coast Guard testified that although conditions at sea had deteriorated considerably, the change in course was not justified by the weather. The Coast Guard inferred that FL 8304 EM had taken evasive action.

Although the Coast Guard justified the second boarding as required by the need to complete the space accountability search, the search actually conducted was much broader than initially proposed. In fact, the second search lasted approximately five hours. During that time, the boarding party used an axe and a crowbar to further investigate the shower area and space underneath the water tank. No contraband was found.

Ultimately, the Coast Guard determined that the seas were too rough to continue the search at sea and they decided to take the vessel and its crew to the Roosevelt Roads Naval Base at Ceiba, Puerto Rico, in order to continue the search. Appellants were transferred to the U.S.S. BIDDLE, allegedly for their safety, and Coast Guard personnel piloted FL 8304 EM back to Puerto Rico. The district court found that appellants did not consent to be taken to Puerto Rico. Id. at 766.

On February 27, while in transit to Puerto Rico, Lt. Boyle inspected the FL 8304 EM personally, and reaffirmed the decision to bring the vessel to shore because certain spaces, such as the water tank (which was welded to the ribs of the vessel), could not be accessed at sea without the risk of sinking the boat.

On February 28, the vessel arrived in Puerto Rico. Navy divers and a narcotics search dog were brought to search the vessel, but detected nothing. The Coast Guard stated that there were too many things strewn over the deck that interfered with the dog's olfactory sense. The water tank was then removed from the boat, and the gasoline tank was emptied. Notwithstanding this search, at the end of the day no contraband had been found. Lt. Boyle transferred custody of the FL 8304 EM to Lt. J.G. Gatlin of the San Juan Coast Guard Law Enforcement attachment.

On March 1, the FL 8304 EM was removed from the water. At this point a destructive search began in earnest. The poor condition of the deck and other factors that suggested that it might have been raised to create hidden spaces, prompted the Coast Guard to use a chainsaw to cut through the deck in search of narcotics. The ceilings and walls of the cabins were pulled down and thoroughly searched. Gatlin and his team discovered a grinder which could be used to cut fiberglass, as well as cushions on the deck filled with fiberglass shavings, suggesting that fiberglass molding work had been done recently. Nevertheless, by the end of the day no illicit substances had been found on the FL 8304 EM.

The government did not give up. The search continued on March 2nd. That afternoon, the search team drilled into two beams that ran the length of the vessel and upon which the engine was mounted. Cocaine was found there. Yet it took the search team even more time to find the place from which the cocaine could be accessed. Using an axe and crowbar, the officers worked for several minutes to open an access point.

After the U.S.S. BIDDLE and FL 8304 EM arrived at Roosevelt Roads Naval Station on February 28, appellants were detained at the base for six hours under guard, during which time they received no food. Subsequently, they were transferred to Immigration and Naturalization Service ("INS") custody and moved to the airport in San Juan where they were detained for three hours in a locked room. Thereafter they were handcuffed and transported to the INS detention facilities at the Salvation Army in San Juan, where they were placed in a large locked room, which resembled a cage. There, they were detained during the three-day on-land search until 5:00 P.M. on March 2, 1990 when they were formally arrested.

After their arrest, appellant Cardona-Sandoval explained to United States Customs Special Agent Roberto Jusino that he had been hired by Roberto de Armas in Barranquilla, Colombia to pick up FL 8304 EM at Rio Hacha, Colombia and take it to St. Maarten. He was to be paid 80,000 Colombian pesos for the job. Similarly, appellant Rojano-Rangel stated that he had been hired by Cardona-Sandoval as a...

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