U.S. v. Guillen-Linares

• Decision Date: 27 April 1981
• Docket Number: GUILLEN-LINARE,No. 78-5630,S,78-5630
• Citation: 643 F.2d 1054
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roldanergio Delrio-Buentes, Tomas Gonzalez, Felix Valle, Raul Delrio-Boquet and Raul Peralta, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1054

643 F.2d 1054

UNITED STATES of America, Plaintiff-Appellee, v. Roldan GUILLEN-LINARES, Sergio Delrio-Buentes, Tomas

Gonzalez, Felix Valle, Raul Delrio-Boquet and Raul

Peralta, Defendants-Appellants.

No. 78-5630.

United States Court of Appeals,

Fifth Circuit.

April 27, 1981.

George L. Cardet, Miami, Fla., for Guillen-Linares.

Anthony F. Gonzalez, Bennie Lazzara, Jr., Richard Lazzara, Tampa, Fla., for Delrio-Buentes, Gonzalez & Valle & Delrio-Boquet.

Stephen Cowen, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

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

Before COLEMAN, TJOFLAT and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

This case is before us again following the district court's compliance with our remand order. Based upon the additional findings that the district court has submitted, we reverse appellants' convictions.

I

Appellants, all crew members of the shrimping vessel Miss Port Canaveral, were tried and convicted of conspiracy to possess marijuana with intent to distribute, 21 U.S.C. § 846 (1976), and of possession of marijuana with intent to distribute, 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (1976). The evidence used to convict appellants was obtained through a Coast Guard boarding of their vessel while it was anchored on the inland waters of Tampa Bay.

Briefly ¹, the pertinent facts of this case are as follows. On April 27, 1978, the U.S. Customs Service in Tampa, Florida, contacted the U.S. Coast Guard's St. Petersburg group. At that time, Customs arranged for Coast Guard assistance in surveying a particular vessel anchored in upper Tampa Bay. Customs specifically alerted the Coast Guard that it might call upon the Coast Guard to board this vessel, subsequently identified as the Miss Port Canaveral.

Later that day, Customs requested the Coast Guard to proceed to the vessel's vicinity to maintain surveillance and to advise Customs of any observations. After an uneventful period of observation, during which the Coast Guard and Customs maintained communication, Customs advised the Coast Guard to board the Miss Port Canaveral. This boarding resulted in the discovery of marijuana, and led to the subsequent conviction of the crew.

It is undisputed that, during the course of this operation, Customs never informed the Coast Guard of any facts underlying its desire to observe and board the Miss Port Canaveral. Furthermore, the district court found that the Coast Guard's surveillance revealed "nothing inherently suspicious about the configuration or presence of the vessel (the Miss Port Canaveral) at the time in question ...." Record Excerpts at 46. Indeed, the record is devoid of any information about the movements of, or activities aboard, the Miss Port Canaveral; the record merely shows that at all relevant times the ship was anchored on the inland waters of Tampa Bay, two miles outside the nearest shipping lane.

Appellants base their appeal on this lack of suspicious circumstances. Because the boarding was initiated in the absence of articulable cause, they assert that it was accomplished in violation of their fourth amendment right to be free of unreasonable searches and seizures. It follows, they assert, that all evidence obtained as a result of this unwarranted intrusion must be suppressed.

In the proceedings below, the appellants moved to suppress the evidence resulting from the search. The district court found that

The Coast Guard was there, according to the testimony of all of the witnesses, at the request and suggestion or direction, if you will, of Customs officers, who by inference, presumably, had some suspicion with regard to the activities of the PORT CANAVERAL, but that has never been demonstrated or articulated on the record ....

Record Excerpts at 44-45. Despite finding a lack of articulated suspicion, however, the court held that the boarding was valid under 14 U.S.C. § 89(a) (1976) ², the statute authorizing the Coast Guard to board and inspect all vessels "subject to the jurisdiction, or to the operation of any law, of the United States." Therefore, the court denied the motion to suppress.

Appellants have contended consistently that the boarding in question should be viewed, pursuant to 14 U.S.C. § 89(b) (1976), as one accomplished by Customs through the agency of the Coast Guard ³, and that its legality should therefore be measured by reference to 19 U.S.C. § 1581(a) (1976), the Customs Service boarding authorization statute. ⁴ Because of the potential for differing approaches to the legality of this boarding, we remanded the case to the district court for a finding of whether the Coast Guard boarded as Coast Guardsmen or as officers of the Customs. The district court has found "that the individuals in the boarding party acted under the direction of the Customs Service and, in the circumstances of this case, were acting in the capacity of Customs agents rather than Coast Guardsmen." Order of January 28, 1981. The case is, therefore, in a posture suitable for resolution.

II

The district court has found that it was, in effect, the Customs Service that boarded the Miss Port Canaveral. Accordingly, we must judge the legality of that boarding pursuant to the constitutional standards this circuit has engrafted onto the broad authorization of section 1581(a). ⁵

In United States v. Serrano, 607 F.2d 1145, 1148 (5th Cir. 1979), cert. denied, 445 U.S. 965, 100 S.Ct. 1655, 64 L.Ed.2d 241 (1980), we held that "Customs officers may make an investigatory stop of a vessel on inland waters adjacent to the open Gulf of Mexico under 19 U.S.C.A. § 1581(a) on facts which justify a reasonable suspicion of illegal activity." See also United States v. Williams, 617 F.2d 1063, 1072 n. 3 (5th Cir. 1980) (en banc). In United States v. D'Antignac, 628 F.2d 428 (5th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. ----, 67 L.Ed.2d --- (1981) (No. 80-1265), we formulated this holding into a test, ruling that the constitutionality of a section 1581(a) boarding in inland waters turns "on one of the following two principles: (1) a border search; or (2) a limited investigatory stop based upon a reasonable suspicion of law violation." Id. at 433. See United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2582, 48 L.Ed.2d 607 (1975); United States v. Whitaker, 592 F.2d 826, 829 (5th Cir.), cert. denied, 444 U.S. 950, 100 S.Ct. 422, 62 L.Ed.2d 320 (1979). See also United States v. Stanley, 545 F.2d 661 (9th Cir. 1976), cert. denied, 436 U.S. 917, 98 S.Ct. 2261, 56 L.Ed.2d 757 (1978).

It is clear from the record before us that the boarding of the Miss Port Canaveral did not constitute a border search. Thus, the issue is whether, absent any articulated facts or circumstances which might have aroused in the customs officers a reasonable suspicion of illicit activity, the seizure of the Miss Port Canaveral was reasonable under the fourth amendment. We find that it was not, and therefore we must reverse the district court's denial of appellants' motion to suppress. ⁶

The decision of the district court is

REVERSED.

COLEMAN, Circuit Judge, concurring specially.

With misgivings about the wisdom and correctness of this decision, I concur. I do so because the result appears to be mandated by our prior decisions, which a panel has no power to change. I confess my antipathy to barriers raised by the judiciary to the effective enforcement of laws designed to curb illegal drug traffic which, without doubt, is one of the most deadly menaces confronting this Country today.

Under the terms of Section 89(a) the Coast Guard is statutorily empowered to board any vessel lying in United States waters to inspect documentation. Such a boarding is not a traditional search or seizure. Furthermore, there could hardly be much expectation of privacy in what is left in plain view of sight or senses before such a boarding takes place.

There is no real difference here between the boarding of the vessel and a search of one's person and effects when boarding a commercial airplane, except that all intended airplane passengers are searched whereas all vessels are not. Yet, the illicit drug menace threatens thousands, perhaps millions...