U.S. v. Hernandez, 80-5051

• Decision Date: 26 February 1982
• Docket Number: No. 80-5051,80-5051
• Parties: 9 Fed. R. Evid. Serv. 1679 UNITED STATES of America, Plaintiff-Appellee, v. Carlos HERNANDEZ and Pedro Luis Pena, Defendants-Appellants. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 824

668 F.2d 824

9 Fed. R. Evid. Serv. 1679

UNITED STATES of America, Plaintiff-Appellee, v. Carlos HERNANDEZ and Pedro Luis Pena, Defendants-Appellants.

No. 80-5051.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Feb. 26, 1982.

Carhart & McQuirk, Coral Gables, Fla., for Hernandez.

Kirk W. Munroe, Coral Gables, Fla., for Pena.

Samuel J. Smargon, Asst. U. S. Atty., Miami, Fla., for the U. S.

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

Before MILLER, ^** Judge, and FRANK M. JOHNSON, Jr. and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

Appellants Pedro Pena and Carlos Hernandez were convicted of conspiracy to possess with intent to distribute methaqualone in violation of 21 U.S.C. § 846; possession with intent to distribute methaqualone in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846; possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871. After consideration of the appellants' contentions, we affirm.

Facts

On August 20, 1979, at approximately 7:00 p. m., United States Customs Patrol Officers Gary Grimm and Allan Westerman while routinely patrolling a marina observed a Wellcraft powerboat with five persons aboard enter Crandon Park Boat Ramp, Key Biscayne, Florida. Grimm noticed that the vessel was riding low in the water and that there was a fishing rod in the hull of the boat. It was the agent's experience that fishermen normally remove rods after they have finished fishing. After the boat docked, three men walked to an auto and departed. A fourth, Hernandez, went to a station wagon equipped with a trailer and brought it back to the vessel. One man, subsequently determined to be Pena, remained on board. Hernandez and Pena then loaded the boat onto the trailer and drove it about 25 feet from the ramp. Agent Grimm testified the two men had difficulty pulling the vessel onto the trailer and that the "bow was a little too heavy to lift."

The agents walked up to the appellants, identified themselves as customs officers and asked where the boat had come from. After conversation in Spanish with Pena, Hernandez answered that they were coming from Cat Cay in the Bahamas. The agents then asked to whom the vessel belonged. Hernandez, again after conversation with Pena in Spanish, said he did not know, that it belonged to a friend of theirs. The agents asked "Could we board your boat? We would like to board your boat and look in your boat." Hernandez, again after consultation with Pena, told the agents to "go right ahead."

Agent Grimm boarded the vessel but found the cabin door padlocked; he then asked Hernandez for a key. Hernandez first talked with Pena in Spanish and then told the agent, "I'll see if I can find it." Hernandez then walked to the front of the car, pulled out some keys, and handed Grimm a key with a key ring. Grimm then placed the key in the lock and opened the lock.

Upon opening the locked cabin doors, a machine gun fell onto Agent Grimm's feet. Inside the cabin was a machine gun pistol, thirteen bales of marijuana and five boxes of methaqualone tablets. A total of four weapons were found on the boat. Both defendants were then arrested.

Issues Raised on Appeal

Both appellants argue that the stop was illegal and the consent to search was an illegal fruit thereof. Appellant Hernandez also argues that the evidence against him was insufficient to convict on the possession and conspiracy to possess drug charges. Pena argues that hearsay evidence was admitted and that the government failed to prove a weapon admitted into evidence was a machine gun.

Standing to Assert Fourth Amendment Rights

The government argues that appellants may not assert a fourth amendment claim in this case under the rationale of Rakas v. Illinois, 439 U.S. 128, 138, 99 S.Ct. 421, 427-428, 58 L.Ed.2d 387 (1978). Under Rakas a defendant's fourth amendment rights are violated only when the conduct of the search invades an expectation of privacy personal to the defendant. The rationale of Rakas was recently reaffirmed by the Supreme Court in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980).

The government's argument on this point must fail for several reasons. At the suppression hearings, the government stipulated to the standing of both defendants. Therefore, appellants never presented evidence as to their expectation of privacy in the boat's cabin. It seems likely that appellants may have been able to demonstrate such a legitimate expectation. They had both been on the boat together and were in lawful possession of it. Pena's wife owned the vessel. Additionally, it should be noted that a change of law involving procedural application of the exclusionary rule under the fourth amendment has not been traditionally accorded retroactive application. United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975). Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1966); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Finally, because we hold that the district court was correct when it held that appellants could not prevail on their fourth amendment claim, the standing issue is less crucial. For these reasons, we proceed to the substance of appellants' claim.

The Stop: Encounter or Seizure

The essence of appellants' argument is that the customs officers could not, consistent with the fourth amendment, ask from where the boat was coming. In short, appellants argue that they were seized when the question was asked. We disagree. The critical facts before us are indistinguishable from those in other cases in which no seizure was found. Although the surrounding circumstances here differ from those in previous stop cases, we believe the factual context before us demands the result we reach even more than in cases previously decided. Particularly significant are the proximity of the incident to the border and to foreign shores and the nature and size of the craft.

The threshold task in these cases must be the characterization of the contact between the officer and the citizen. Contacts are distinguished by the amount of restraint imposed on the citizen. In an arrest maximum restraint is imposed and probable cause is required before such contact is permitted. The fourth amendment may be implicated when less than a full arrest occurs. As in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a lesser imposition may require only reasonable suspicion on behalf of the officers. Finally, in a mere contact between officers and citizens in which no restraint occurs the fourth amendment is not implicated and the officer need possess no quantum of suspicion to initiate the contact. United States v. Elmore, 595 F.2d 1036, 1041-42 (5th Cir. 1979), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980).

The contact in Elmore, the classic airport stop case, was similar to that here. The agents approached Elmore, identified themselves as law enforcement officers and asked to see Elmore's ticket. The court in Elmore held that the fourth amendment was not implicated by that contact. The government insists that the contact here is similar enough to that which occurred in Elmore to end the fourth amendment inquiry and eliminate the need for measuring the quantum of suspicion which might exist in this case. Although we recognize differences between these facts and those in Elmore, we believe those differences support rather than weaken the conclusion that appellants were not seized.

The Supreme Court's opinion in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), provides the analytical approach for these cases. A court must balance the "intrusion on the individual's fourth amendment interests against its promotion of legitimate governmental interests." 440 U.S. at 654, 99 S.Ct. at 1396. We note that the intrusion in this case, the asking of a question, is certainly less than occurred in Elmore in which the court held that the production of an airline ticket was not sufficient intrusion to trigger the fourth amendment. Here only a question was asked. Appellants were not required to produce any documents or accompany the officers to a different location. The officers requested the key to the cabin but only after appellants had consented to the search of the vessel. This action therefore is not relevant in characterizing the nature of the initial stop.

An airport is different from the shore of a bay. The differences, however, do not support appellants' position. An officer-citizen contact is much less of an intrusion in the recreational outdoor setting before us here than in the hustle of an airport where citizens often race to keep important appointments. Further, traffic in airports is routed to designated areas for customs checks. On a bay opening to international waters, the need for random roving officer activity is increased as is citizen recognition of the need for such activity and the potential for an officer-citizen contact.

The level of anxiety raised in the citizen can be a gauge of the intrusion. In Delaware v. Prouse, the Supreme Court condemned the arbitrary random selection of a vehicle for a license check. The Court was concerned by the intrusion often involved when a vehicle is stopped. The contact is accompanied by a flashing light and siren. A citizen's trip, which may in some cases be an emergency one, is delayed. Anxiety is created in a citizen on the small possibility that some license or insurance infraction has occurred. The instant case presents a different circumstance. Biscayne Bay is about 100 miles from the Bahamas. When a vessel is observed at a point proximate to the border and...