U.S. v. Helms

• Decision Date: 22 March 1983
• Docket Number: No. 81-5297,81-5297
• Citation: 703 F.2d 759
• Parties: UNITED STATES of America, Appellee, v. James R. HELMS, Robert F. Ihle, Robert C. Mason, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 759

703 F.2d 759

UNITED STATES of America, Appellee, v. James R. HELMS, Robert F. Ihle, Robert C. Mason, Appellants.

No. 81-5297.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 12, 1982.

Decided March 22, 1983.

G. Dan Bowling, Charleston, S.C. (Goodstein & Bowling, Charleston, S.C., on brief), for appellants.

Lionel Lofton, Asst. U.S. Atty., Charleston, S.C. (Henry Dargan McMaster, U.S. Atty., Wells Dickson, Asst. U.S. Atty., Columbia, S.C., Frances Lee Cain, Third Year Law Student on brief), for appellee.

Before RUSSELL and ERVIN, Circuit Judges, and EUGENE A. GORDON, Senior United States District Judge for Middle District of North Carolina, sitting by designation.

DONALD RUSSELL, Circuit Judge:

The appellants--the captain and two crew members of a sailboat--were convicted of violating the Federal Drug laws as a result of a search of the vessel apprehended traveling inland from "outside" through the Five Fathom Creek Channel off the coast of McClellanville, South Carolina. The validity of such search is the sole issue on appeal. The District Court found the search valid and it is that decision from which this appeal is taken. We affirm.

In proceeding from the docks at McClellanville to the ocean, ships pass through Jeremy Creek, across the Intracoastal Waterway (identified as ICW in the record) into Five Fathom Creek which provides the channel leading out to the ocean. A detail of United States Customs Officers, consisting of Captain Bell and Officers Williams and Southern, were on patrol in a Customs boat off the coast of McClellanville in Five Fathom Creek on the night of January 21-22, 1981. The officers had received information that there was a mother ship at sea off the coast with a load of marijuana. They stationed themselves in the channel of Five Fathom Creek, a mile or so seaward beyond the juncture of such Creek and the ICW, in order to permit them to observe any boat moving down the channel from "outside."

Between two and two-thirty in the morning, one of the officers "observed a light headed in [his] direction through Five Fathom Creek from the ocean .... At this time [his] fellow officers didn't see it. [He] alerted them because there was a light out in the direction of the ocean ...." When first seen, this light appeared to the officer to be about "three to five miles" from his location. Captain Bell, after he was alerted to the situation, testified also that the light indicated a vessel which "appeared to be coming in from outside." At first, Captain Bell assumed the vessel was a shrimp boat returning from the sea but, as he and the other officers continued to observe the approaching vessel, he "realized that the lights that were being displayed were too high in relative position to the water for [the vessel] to be a shrimp boat." Both of the lights he saw were on the vessel's mast, one on top of the mast and the other about fifteen feet lower. The top light was the "red-green running light" and the lower one was white. As the vessel drew nearer a light in its cabin was also seen.

While the vessel, using a spotlight to "mark [its] way", continued down the channel from "outside," the officers moved their boat "into a smaller creek to the side" of Five Fathom Creek and tied up to a piling or dolphin. When the vessel was about a mile away, Captain Bell recognized that the vessel was a sailboat and realized that it was coming toward the location of his boat. He ordered the engine of his boat started and moved into the channel. As he did so, he noted that "the specific shape of the vessel" indicated that "it was a potentially form built [foreign] vessel." At that time he "decided to go over and at least identify the vessel." When the Customs boat approached the stern of the vessel, Captain Bell observed "no name or hailing port on the vessel," which caused him to believe there was "something unusual" about the vessel. He also saw two men on the vessel "dressed like they had foul weather gear on, looked like they had come from outside." He hailed the vessel and identified himself and his accompanying officers as "U.S. Customs", inquiring at the time of the captain of the vessel "where he was coming from." The reply of the vessel's captain was that he was coming from "Wilmington," which Captain Bell took to mean Wilmington, North Carolina.

Captain Bell testified that, in order for the vessel to have come from Wilmington to the point where it had been sighted by the officers "would require that [it come] in from outside through territorial waters of the United States, if not even further out." ¹ After receiving this information that the vessel had come from Wilmington and thus "through territorial waters," Captain Bell told the vessel's captain, the defendant Helms, that he was sending aboard a party to inspect the vessel's papers.

At Bell's instructions, Officers Williams and Southern boarded the vessel in order to "check [its] papers." To the request of the boarding officers for the vessel's papers, the vessel's captain responded that the vessel was leased. The officers inquired whether they could see the lease. The captain agreed but said the lease was below. The officers, with Captain Helms' consent, accompanied the captain "below." The captain presented the officers with the lease, which gave the name of the owner of the vessel as Howard Incator of Monroe County, Florida, was dated December 15, 1980, and was to run for three months. When the officers went below, they noted what they identified both by sight and smell as marijuana bales stacked openly on the beds and elsewhere in the vessel. They instructed the captain to return to the deck and to gather his crew. The officers reported to Captain Bell that they had discovered what they took to be contraband aboard. Captain Bell instructed them to bring the boat into the docks at McClellanville where the defendants were arrested. When they searched the boat it was found loaded with marijuana. This prosecution followed.

The defendants initially moved to suppress the fruits of the search and the District Court denied the motion, predicating its denial on the fact "that the Customs people under 1581(a) ... do not violate the Fourth Amendment when they stop any vessel of this type to seek its papers, its documentation." Later the Court added: "They [the Customs officers] don't even contend there was any reasonable suspicion. They stopped it under the authority of 1581(a) which I think they had authority to do. And once they got on board, I found as a fact, the only testimony before me is that the captain, Mr. Helms said that he didn't have any manifest; but he had leased the boat. The lease was down below. I think it was entirely appropriate for the officers to go down below with him. I think for security reasons that was proper from them to do and I so find as a fact; and once down there they saw the marijuana in plain view. They didn't snoop around. It was right there. There wasn't any question once they got below and saw the marijuana they had every reason in the world to arrest the occupants and every reason and right to take them." The defendants challenge the validity of these rulings.

As the District Court noted, Customs officers are, by express statute, authorized to stop and board for a documentary examination any vessel within the "customs waters," statutorily defined as "waters within four leagues [12 nautical miles] of the coast of the United States," with or without any suspicion of criminal activity and such stops are traditionally within the reasonableness standard of the Fourth Amendment, Secs. 1581(a) and 1401(j), 19 U.S.C.; United States v. Ramsey, 431 U.S. 606, 610, 97 S.Ct. 1972, 1975, 52 L.Ed.2d 617 (1972). ² The authority to stop, however, does not ordinarily extend to "inland waters," but even "in territorial waters running from the coast to the three mile border at sea," [i.e., in "inland waters"] such authority to stop a vessel for a documentary check may constitutionally be exercised by both the Coast Guard and by Customs Officers, ³ as the "functional equivalent" of a valid border stop, without suspicion of any criminal action, provided there is evidence indicating "some degree of probability that the vessel [had] crossed a border; i.e., the officials must possess some articulable facts tending to show that the vessel had recently crossed an international border," United States v. Laughman, 618 F.2d 1067, 1072, n. 2 (4th Cir.1980), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117, or there is "a reasonable suspicion that the [vessel] had crossed the border," United States v. Fogelman, 586 F.2d 337, 343 (5th Cir.1978), or that the vessel had come "from international waters and crossed the territorial border," Blair v. United States, 665 F.2d 500, 505 (4th Cir.1981). ⁴

Evidence of "a degree of reasonable probability" that a vessel sighted in "inland waters" has "recently crossed a border will ordinarily be wholly circumstantial," United States v. Bilir, 592 F.2d 735, 740 (4th Cir.1979), but "[n]o rigid formula" may be prescribed for what may qualify as adequate circumstantial evidence in establishing such "reasonable cause," United States v. McGlone, 394 F.2d 75, 78 (4th Cir.1969). Certainly, the circumstantial evidence need not reach the level of a showing that the Customs officers had observed the vessel in the act of actually crossing the territorial border as a basis for stopping the vessel and we have so held in United States v. McGlone, 394 F.2d at 78, declaring in that case that the constitutionality of the stop "is not dependent upon showing that ... the [vessel] that is searched actually crossed the border." ⁵

Moreover, whether there has been a border crossing or its "functional equivalent" is a question of fact which, like any other fact at a suppression hearing, need be established only by a preponderance of the evidence, United States v. Matlock, 415 U.S. 164,...