U.S. v. Kent

• Citation: 691 F.2d 1376
• Decision Date: 22 November 1982
• Docket Number: No. 81-5776,81-5776
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark J. KENT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1376

691 F.2d 1376

UNITED STATES of America, Plaintiff-Appellee, v. Mark J. KENT, Defendant-Appellant.

No. 81-5776.

United States Court of Appeals, Eleventh Circuit.

Nov. 22, 1982.

Richard A. Gargiulo, Constance L. Rudnick, Boston, Mass., Michael A. Lipsky, Mandina & Lipsky, Philip J. Mandina, Miami, Fla., for defendant-appellant.

Robert J. Bondi, James S. McAdams, III, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, and ANDERSON, Circuit Judge, and HOFFMAN ^*, District Judge.

R. LANIER ANDERSON, III, Circuit Judge:

Appellant was charged with possession of marijuana with intent to distribute in violation of 21 U.S.C.A. Sec. 841(a)(1) (West 1981). Appellant was convicted in a bench trial and appeals the denial of his motion to suppress evidence. We affirm.

I. FACTS

At approximately 4:30 P.M. on March 7, 1980, an informant notified the Customs Patrol office in Miami that a 50-foot, white, yacht-type vessel with three persons on board would be coming into the area of the Coral Gables Waterway within an hour carrying a load of marijuana. The Customs Patrol promptly launched a Customs vessel which proceeded to the Coral Gables Waterway area. At approximately 5:15 P.M., Customs Patrol Officer Joseph Brookins observed a vessel which matched the description provided by the informant. The vessel, which was subsequently identified as the SUNDANCER, was entering the first waterway south of the Coral Gables Waterway and was the only vessel observed in the area at that time.

After maintaining visual contact with the SUNDANCER for approximately thirty minutes, the Customs vessel drew alongside and asked the captain, later identified as appellant Kent, where the SUNDANCER was coming from. Kent responded that he was coming from the West Palm Beach area. Officer Brookins believed that this was an "unusual response" because the SUNDANCER had been heading in a northwesterly direction when originally sighted. ¹ Brookins also asked Kent where the SUNDANCER was going to dock, but Kent did not give an answer to this inquiry. Officer Brookins then decided to board the SUNDANCER, and Kent apparently agreed to permit the boarding. ²

After boarding the SUNDANCER, Brookins asked Kent for the ship's documents. While Brookins accompanied Kent to look for the documents, ³ the other Customs Patrol officer who boarded the ship, James Carlin, began to look around the vessel. When he examined the pilot house, Carlin discovered an open doorway leading from the pilot house to the interior of the vessel. Carlin stepped into the doorway, bent over slightly due to a partially closed partition above the doorway, and took one or two steps down the stairwell leading into the lounge area. From that position, Carlin observed several large bales wrapped in burlap through a half-open door at the opposite end of the lounge which led to the forward stateroom. Recognizing that the bales were characteristic of marijuana, Carlin proceeded forward through the lounge and the galley to the forward stateroom. Carlin then confirmed that the bales contained marijuana and learned that both the forward and rear staterooms were filled with marijuana bales. Carlin informed Officer Brookins about his discoveries, and the Customs Patrol officers arrested Kent and the two other individuals on board the SUNDANCER.

II. THE STOP AND BOARDING OF THE SUNDANCER

The first issue presented on this appeal is the constitutionality of the stop and boarding of the SUNDANCER. Our cases hold that Customs officers may make investigatory stops of vessels on inland waters "on facts which justify a reasonable suspicion of illegal activity." United States v. Ruano, 647 F.2d 577, 579 (5th Cir. 1981); ⁴ United States v. D'Antignac, 628 F.2d 428, 434 (5th Cir.1980), cert. denied, 450 U.S. 967 101 S.Ct. 1485, 67 L.Ed.2d 617 (1981); 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 and 446 U.S. 910, 100 S.Ct. 1838, 64 L.Ed.2d 263 (1980). The crucial question, therefore, is whether the Customs Patrol officers who stopped and boarded the SUNDANCER had knowledge of facts which justified a reasonable suspicion of illegal activity.

We agree with the district court that the information contained in the informant's tip coupled with the subsequent verification of that information gave the Customs Patrol officers a reasonable suspicion that the SUNDANCER was engaged in illegal activity. The tip indicated that a 50-foot, white, yacht-type vessel with three people on board would enter the area of the Coral Gables Waterway within an hour carrying a large load of marijuana. When the officers investigated this information, they found a vessel which matched the description given by the informant, which had three people on board, and which was entering the Coral Gables Waterway area at the time designated by the informant. Further, the Customs Patrol officers sighted no other vessels in the Coral Gables Waterway area at that time. These facts corroborated the information contained in the informant's tip.

Appellant argues, however, that the corroborated tip could not properly provide the basis for a reasonable suspicion of illegal activity. Appellant contends that the tip was unsupported by any indicia of the informant's reliability because the government did not present evidence which established the reliability of the informant or disclosed the source of the informant's information. Consequently, appellant argues, the Customs Patrol officers did not have a reasonable suspicion of illegal activity when they stopped and boarded the SUNDANCER. We disagree.

Admittedly, the record does not establish the informant's past reliability or disclose the manner in which the informant obtained his information. The Customs Patrol officer who received the tip testified only that he knew the informant and had talked to him in the past. A tip from an informant of unknown reliability ordinarily will not create a reasonable suspicion of criminality. See United States v. McLeroy, 584 F.2d 746 (5th Cir. 1978). Cf. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). However, the tip was not so completely lacking in indicia of reliability that the Customs Patrol officer had to "shrug his shoulders and allow a crime to occur or a criminal to escape." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).

We believe that the tip the Customs Patrol officer received was similar to the tip in Adams v. Williams, supra. In that case, an informant of unproven reliability advised a police officer that "an individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist." Id. at 145, 92 S.Ct. at 1923. The Court found that the tip carried enough indicia of reliability to justify the officer's forcible stop of the defendant. The Court based its decision on the fact that "[t]he informant was known to [the officer] personally and had provided him with information in the past." Id. at 146, 92 S.Ct. at 1923. Thus, the Court found that the tip had more indicia of reliability than "in the case of an anonymous telephone tip," id., and, therefore, the officer had reasonable cause to act on it. The Court's description of the tip in Adams v. Williams also applies to the tip the Customs Patrol received in this case. Consequently, we believe the tip must be given considerable weight when determining whether the officers had a reasonable suspicion of criminality sufficient to justify the stop and boarding of the SUNDANCER. ⁵

After the Customs Patrol officers received the tip, they conducted an independent investigation of the information provided by the informant. This court has held that "[w]here insufficient information about the tip and the tipster is available to justify reliance on it alone, investigating officers may supplement the tip by surveillance of the subject or corroboration of key elements of the tip from relatively objective sources." United States v. Brennan, 538 F.2d 711, 720 (5th Cir. 1976), cert. denied, 429 U.S. 1092, 97 S.Ct. 1104, 51 L.Ed.2d 538 (1977). This court also has stated that "corroboration of innocent details might change an otherwise insubstantial tip into a proper basis for a reasonable suspicion of criminality." United States v. McLeroy, 584 F.2d at 748. ⁶ In this case, the informant gave relatively detailed information regarding the description and location of a vessel carrying marijuana. This information was not "readily available to many persons," United States v. McLeroy, 584 F.2d at 748, and could not "easily have been obtained from an offhand remark heard at a neighborhood bar." Spinelli v. United States, 393 U.S. at 417, 89 S.Ct. at 589. Rather, the information provided by the informant, particularly the vessel's location at a particular place and time, inferred "that the informant had gained his information in a reliable way." Spinelli v. United States, 393 U.S. at 417, 89 S.Ct. at 589. See also Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Only a person with personal knowledge of a vessel's activities would have been able to accurately predict the vessel's location in the future. ⁷ The Customs Patrol officers' subsequent verification of the informant's tip provided the corroboration necessary to justify a reasonable suspicion that the SUNDANCER was engaged in illegal activity.

Several previous decisions by this court support our conclusion that a tip from a known, albeit unproven, informant coupled with subsequent corroboration of the tip's details can justify a reasonable suspicion of criminality. In United States v. Afanador, 567 F.2d 1325 (5th Cir. 1978), for example, this court upheld the strip search of an airline...