U.S. v. Conroy

• Decision Date: 23 February 1979
• Docket Number: Nos. 77-5436,77-5444,s. 77-5436
• Citation: 589 F.2d 1258
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert CONROY, Raymond Dahl, Frederick Jacobs and Walter K. Schubert, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Leonard A. WALKER, a/k/a "Silver", Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1258

589 F.2d 1258

UNITED STATES of America, Plaintiff-Appellee, v. Robert CONROY, Raymond Dahl, Frederick Jacobs and Walter K.

Schubert, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Leonard A. WALKER, a/k/a "Silver", Defendant-Appellant.

Nos. 77-5436, 77-5444.

United States Court of Appeals Fifth Circuit.

Feb. 23, 1979.

Rehearing and Rehearing En Banc Denied April 12, 1979.

Melvyn Kessler, Miami, Fla., for defendants-appellants in 77-5436.

J. V. Eskenazi, Michael P. Sullivan, Barbara D. Schwartz, Asst. U. S. Attys., Miami, Fla., for U. S. in both cases.

Theodore J. Sakowitz, Federal Public Defender, David K. Kelley, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant in 77-5444.

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

Before RONEY, RUBIN and VANCE, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

If the Coast Guard cutter DAUNTLESS is not otherwise recorded in history, her forays to protect coasts of the United States from illicit imports will be commemorated in decisions of the Fifth Circuit. ¹ The defendants, convicted of either conspiracy or both conspiracy and attempting to import marijuana, ² charge that the zeal of her commanding officer exceeded his statutory authority and led him to violate their constitutional rights by boarding their American vessel in Haitian waters. Having recently attempted to chart the rules concerning coast guard authority with respect to domestic vessels in coastal waters ³ as well as on the high seas, ⁴ we now explore the same questions in the uncharted foreign domain.

I.

Once upon a time there was an informer, most of these tales begin. In this instance he was Flemming Larson Budal, a Danish citizen who was residing in the United States, had been an informer for several months, had worked on a number of other cases, and had been paid $200 a week by the Drug Enforcement Administration.

In December, 1975, Budal began a series of conversations with two of the defendants, Schubert and Conroy, in New England, and together they formulated a plan to smuggle a boatload of marijuana from Jamaica. During this time Budal was in constant communication with a special agent of the DEA.

Schubert obtained a 53-foot Gulfstar sailboat in Ft. Lauderdale. Soon afterwards Budal flew to Ft. Lauderdale where he was met by Dahl and Schubert, and another indictee who was separately tried. They were later joined by a fourth defendant, Jacobs, and together lived on the vessel, the NAHOA, until September 3, 1976, when they weighed anchor for Jamaica. Conroy remained in New England, allegedly to await the return of the other defendants with their cargo.

The DEA agent had furnished Budal two electronic detection devices of the kind known as beepers, one of which was to be turned on when the vessel was loaded. This device emits a signal by means of which its location can be determined by other electronic equipment. Rather then keep either on his person, Budal concealed one in the engine room and the other in an air vent on the NAHOA.

When the NAHOA was about 40 miles from Jamaica, the crew met the fifth defendant, Walker, who came out from the island on a small motorboat. Walker made four trips to the NAHOA ferrying marijuana.

The DAUNTLESS, under the command of Lieutenant Robert Council, was on border patrol in the Windward Passage between Haiti and Cuba, on guard for the NAHOA. When a DEA plane flying over nearby waters received an electronic signal from one of Budal's beepers, the DAUNTLESS attempted to establish a barrier patrol in the Windward Passage.

A day later the commanding officer of the DAUNTLESS recognized a radar beep on his scope as a vessel located about nine miles southwest of Haiti. He set his course for the vessel, and soon sighted her; it was, as anticipated, the NAHOA. He attempted to communicate with the vessel by radio, flag, and flashing lights, all signaling her to heave to. Nevertheless, those aboard the vessel set course straight for Haiti, and entered that nation's territorial waters.

Oral approval, later confirmed in writing, to enter Haitian waters and search the NAHOA was obtained from the Haitian Chief-of-Staff, and the DAUNTLESS continued in pursuit. When on further signals, the NAHOA did not halt, the flag Sierra Quebec III was raised: this signifies "stop or we'll shoot." The NAHOA then hove to, and Lieutenant Council pulled alongside her in a small boat. He smelled marijuana, and asked permission to board. Schubert denied his request, but Lieutenant Council went on the vessel and requested the ship's papers. Schubert prevented him from entering the ship's cabin; the lieutenant ordered a search, and found 7000 pounds of marijuana.

Defendants Conroy, Schubert, Dahl and Jacobs contend that in this dramatic encounter the Coast Guard were little better, legally, than pirates. The installation of the beeper was an illegal search; the boarding of the vessel in Haitian waters exceeded the statutory authority of the Coast Guard and violated their constitutional rights because it was unreasonable and warrantless. In addition, defendant Walker, who was separately tried, alleges that there was insufficient evidence to convict him of conspiracy, and that procedural errors denied him a fair trial.

II. INSTALLATION OF THE BEEPER

A panel of this court has held that the installation of a beeper on an automobile is a search within the meaning of the Fourth Amendment because it defeats the expectation of privacy of the automobile's occupant; it is, therefore, prohibited unless a warrant is obtained or there is sufficient basis for the failure to obtain a warrant to render the act reasonable. United States v. Holmes, 5 Cir. 1975, 521 F.2d 859. En banc, the court again affirmed the district court on the issue, but only by an evenly divided vote, 5 Cir. 1976, 537 F.2d 227. For present purposes, we assume that the Holmes panel establishes the law of the circuit. ⁵ Compare United States v. Abel, 5 Cir. 1977, 548 F.2d 591, Cert. denied, 431 U.S. 956, 97 S.Ct. 2678, 53 L.Ed.2d 273; United States v. Emery, 1 Cir. 1977, 541 F.2d 887; United States v. Hufford, 9 Cir. 1976, 539 F.2d 32, Cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 614; United States v. Frazier, 8 Cir. 1976, 538 F.2d 1322, Cert. denied, 1977, 429 U.S. 1046, 97 S.Ct. 751, 50 L.Ed.2d 759.

Nonetheless we note that here, unlike Holmes, there was no trespass ⁶ when the beeper was installed for Budal had the right to be on board the vessel; moreover, there was probable cause to believe that the NAHOA would be used to transport contraband. ⁷ However, validity of the installation of the electronic device does not rest only on these distinctions; the transmission of the signals was not, under the circumstances, an invasion of the privacy of others, for Budal was under no legal obligation to conceal his whereabouts. Thus the case is controlled by the decision in United States v. White, 1971, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453, in which a plurality of the court held that there is no privacy invasion when a confidential informant wears a recording device and surreptitiously transmits his own conversations with unknowing lawbreakers. That decision was based on the premise that a participant in a conversation has no legal right to protect his erroneous belief that those in whom he confides will safeguard the secrets he divulges. See also Lopez v. United States, 1963, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462. If the informant may reveal the conversation at a later time, he may contemporaneously transmit it to third persons. Accordingly, in Abel, supra, we upheld, on the basis of the owner's consent, the warrantless installation of an electronic device on an airplane.

Here, Budal was not the vessel owner, but he had a right to go aboard, and his placement of the devices on the vessel rather than on his person does not render its introduction invalid. ⁸ See also United States v. Cheshire, 5 Cir. 1978, 569 F.2d 887, Cert. denied, 437 U.S. 907, 98 S.Ct. 3097, 57 L.Ed.2d 1138 (consent by owner to installation on a plane he had rented to the defendant).

Appellants suggest that the beepers may have been installed without prior written authorization as required by the Internal Regulations of the DEA. Although the issue was fleetingly discussed during the trial court's hearing on the motion to suppress, there is no evidence in the record of noncompliance with the regulations. The regulations upon which the claim is based are not cited; in the absence of evidence establishing the existence of such a requirement and its breach, we do not reach the issue whether noncompliance, if shown, would require suppression of evidence obtained as a result of the improper installation. See United States v. Caceres, 9 Cir. 1976, 545 F.2d 1182, 1187, Cert. granted, 1978, 436 U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784; United States v. Leahey, 1 Cir. 1970, 434 F.2d 7, 11.

III. THE SEIZURE IN FOREIGN WATERS

The Fourth Amendment not only protects all within our bounds; it also shelters our citizens wherever they may be in the world from unreasonable searches by our own government. Reid v. Covert, 1957, 354 U.S. 1, 5-6, 77 S.Ct. 1222, 1225, 1 L.Ed.2d 1148, 1157. See Note, The Applicability of the Exclusionary Rule in Federal Court to Evidence Seized and Confessions Obtained in Foreign Countries, 16 Colum. J. Transnat'l L. 495 (1977). The mere consent of foreign authorities to a seizure that would be unconstitutional in the United States does not dissipate its illegality even though the search would be valid under local law. ⁹ Indeed the United States does not here contend that those aboard the NAHOA were beyond the shield of the Fourth Amendment. The issue is whether the search was invalid because it was made without a warrant and by a federal agency, the Coast Guard, that lacked express statutory authority to conduct it.

A. Statutory...