U.S. v. Humphrey

• Citation: 759 F.2d 743
• Decision Date: 02 May 1985
• Docket Number: Nos. 83-3023,83-3025 and 83-3026,s. 83-3023
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John C. HUMPHREY, W.C. Garbez, and Robert D. Smith, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 743

759 F.2d 743

UNITED STATES of America, Plaintiff-Appellee, v. John C. HUMPHREY, W.C. Garbez, and Robert D. Smith,

Defendants-Appellants.

Nos. 83-3023, 83-3025 and 83-3026.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 17, 1983.

Decided May 2, 1985.

Michael Spaan, Anchorage, Alaska, for plaintiff-appellee.

Walter Share, Anchorage, Alaska, for defendants-appellants.

Appeal from the United States District Court for the District of Alaska.

Before CANBY, BOOCHEVER, and NORRIS, Circuit Judges.

NORRIS, Circuit Judge:

This appeal presents the question whether Coast Guard officers violated the Fourth Amendment when they made a warrantless, suspicionless and discretionary daytime boarding of a sailboat on the high seas, entered the below-deck cabin after learning that weapons were stowed there, and then conducted a safety inspection in the cabin.

I

On June 20, 1982, defendants Humphrey, Garbez and Smith were sailing in the north Pacific Ocean aboard the Orca, a thirty-nine foot sailboat. ¹ After the Coast Guard cutter Boutwell made visual contact with the Orca, the Boutwell received a radio message from the Orca. The Orca inquired whether a boarding would take place, and asked that the boarding party bring beer with them. The Boutwell responded by radio, inquiring as to the destination of the Orca and informing the Orca that she would be boarded. The Orca reported that she was headed for her home port, San Francisco. The commander of the Boutwell decided to board the Orca for the stated purpose of conducting a routine document and safety inspection. The commander had been alerted to watch for pleasure craft carrying drugs from Asia via the North Pacific and observed that the Orca was riding slightly low in the water. The Orca was boarded without probable cause or even reasonable suspicion that the Orca was either carrying contraband or was in violation of safety or document regulations.

Upon boarding the Orca, Coast Guard Lt. Rutz asked whether any weapons were on board. When Humphrey answered affirmatively, Lt. Rutz asked, "May I see them?" Humphrey led Lt. Rutz below deck, where he took possession of the weapons and unloaded them. Humphrey then invited Lt. Rutz to inspect the fire extinguishers, and after doing so, Lt. Rutz asked to examine the marine sanitation device, which is the bathroom facility in nautical terms. Humphrey told Lt. Rutz that he would have to move some loose sails in order to reach the device. Upon moving the sails, Lt. Rutz discovered some fifty aluminum foil packages with a few scattered seeds and green particles sticking to the outside of the packages. The officer opened the packages and discovered what he believed and a subsequent test proved to be marijuana. At that point, the defendants were arrested. A further search of the Orca led to the discovery of approximately 3100 pounds of marijuana valued at over $3,000,000.

Defendants were indicted under 21 U.S.C. Sec. 955a (1982) for possessing narcotics on a vessel of American registry with the intent to distribute and for conspiracy to do so under 21 U.S.C. Sec. 955c (1982). After the district court denied their motion to suppress the marijuana evidence on the ground that the search of the Orca violated the Fourth Amendment, they were convicted on both the substantive and conspiracy counts following a court trial. All three defendants were convicted on both counts; defendant Smith received thirty months incarceration, defendant Garbez was sentenced to two years, and defendant Humphrey was sentenced to four years.

II

A

The first question we address is whether the Coast Guard's daytime boarding of the Orca for the purpose of conducting a document and safety inspection--as distinguished from the subsequent inspection of the below-deck cabin--violated the Fourth Amendment. We hold, principally on the authority of United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983), that the boarding did not violate the Constitution, notwithstanding that the boarding was conducted without a warrant, without probable cause and without an administrative plan limiting the discretion of the Coast Guard officers.

In Villamonte-Marquez, the Supreme Court considered a suspicionless and warrantless boarding of a sailboat located in a ship channel connecting a designated customs port of entry with the open sea. The boarding was conducted by customs officials for the purpose of a document inspection. Because a simple boarding--limited to the publicly exposed deck area--involves only a minimal intrusion on protected Fourth Amendment interests, the Court said such boardings are to be "judged by balancing [the] intrusion on the individual's Fourth Amendment interests against [the] promotion of legitimate governmental interests." Id. at 588, 103 S.Ct. at 2579 (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979)). ²

Thus, Villamonte-Marquez establishes the balancing test as the standard by which the boarding of the Orca must be judged. When we apply the balancing test to the facts of this case, we reach the same result as did the Supreme Court in Villamonte-Marquez. ³ Initially, the privacy interest invaded by the boarding of the Orca is not materially different from the privacy interest evaluated in Villamonte-Marquez; both cases involved law enforcement officers entering the publicly exposed deck area of a sailing vessel. The governmental interests in the two cases are factually distinguishable, but in both cases the governmental interest is sufficiently substantial to outweigh the minimal intrusion on protected privacy. Two important governmental interests supported the boarding of the Orca. First, there is a substantial governmental interest in enforcing documentation laws on the high seas because the United States is obligated by treaty to enforce documentation laws for United States vessels in international waters. See United States v. Watson, 678 F.2d 765, 768 (9th Cir.), cert. denied, 459 U.S. 1038, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982). Second, the governmental interest in safety was particularly strong in this case because of the course and location of the Orca in the North Pacific. The Magistrate's finding that the commander of the Boutwell decided to board the Orca to determine whether she was capable of making the journey home is supported by the testimony of the commander of the Boutwell that he would have been remiss in his duty to insure the safety of United States citizens at sea if he had not made a safety inspection of the Orca under the circumstances. ⁴ More generally, an unsafe vessel is not only a hazard to its occupants, but can pose dangers to international commerce by sea. See United States v. Hilton, 619 F.2d 127, 131-32 (1st Cir.), cert. denied, 449 U.S. 887, 101 S.Ct. 243, 66 L.Ed.2d 113 (1980).

When we compare the minimal intrusion on protected interests with the strong governmental interest that supported the boarding of the Orca, we conclude, as the Supreme Court did in Villamonte-Marquez, that the boarding itself was "reasonable" and hence did not violate the Fourth Amendment. Our conclusion is highly fact specific. We do not establish a general rule that approves all warrantless, suspicionless, and discretionary boardings of noncommercial vessels on the high seas. Rather, we hold that a daytime boarding for the purpose of conducting a safety inspection that is conducted in a minimally intrusive manner, when the vessel is in a location that poses a substantial risk to its occupants, is reasonable under the Fourth Amendment balancing test. No broader conclusion is required to decide this case.

Our conclusion is consistent with this court's precedent. Before Villamonte-Marquez, it would have been an open question whether the boarding of the Orca violated the Fourth Amendment. Our court had approved a brief detention in territorial waters when there was cause in the form of a visible safety hazard, United States v. Odneal, 565 F.2d 598 (9th Cir.1977), cert. denied, 435 U.S. 952, 98 S.Ct. 1581, 55 L.Ed.2d 803 (1978), but we disapproved a warrantless and suspicionless boarding at night, reasoning that a nighttime boarding constituted a substantial subjective intrusion on privacy interests protected by the Fourth Amendment. United States v. Piner, 608 F.2d 358 (9th Cir.1979). In two subsequent cases, however, United States v. Watson, 678 F.2d 765, United States v. Eagon, 707 F.2d 362 (9th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 483, 78 L.Ed.2d 680 (1983), we approved suspicionless nighttime boardings pursuant to an administrative plan that limited the discretion of the Coast Guard officers. Thus, the constitutionality of the boarding of the Orca, which was conducted during the day but without an administrative plan, was not clearly settled by our cases.

Our holding today--that under some circumstances the Coast Guard may conduct warrantless and suspicionless boardings for the purpose of conducting document and safety inspections on the high seas--is supported by the decisions of our sister circuits. The First, ⁵ Fifth ⁶ and Eleventh ⁷ Circuits have all held that warrantless and suspicionless boardings for the purpose of conducting document and safety inspections do not violate the Fourth Amendment even in the absence of an administrative plan. Although the Second, ⁸ Third ⁹ and Fourth ¹⁰ Circuits have required an administrative plan or reasonable suspicion in the cases in which boardings of noncommercial vessels have been approved, most of these cases fail to differentiate document and safety inspections from other boardings, and none of the cases requiring cause or an administrative plan for safety and document inspections was decided with the benefit of the Supreme Court's decision in Villamonte-Marquez.

B

Our decision that the boarding itself did not violate the Fourth Amendment does not extend to the search...