U.S. v. Kleinschmidt, 78-5427
| Decision Date | 04 June 1979 |
| Docket Number | No. 78-5427,78-5427 |
| Citation | 596 F.2d 133 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Norman KLEINSCHMIDT and Michael Andrew Sorrentino, Defendants-Appellants. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
William L. Rogers, Miami, Fla., for Kleinschmidt.
Steadman S. Stahl, Jr., Hollywood, Fla., for Sorrentino.
Jack V. Eskenazi, U. S. Atty., Caridad P. Matthews, Linda Collins Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before COLEMAN, FAY and RUBIN, Circuit Judges.
In another of the flotilla of cases challenging the actions of customs officials in stopping and searching a vessel off the coast of the United States, the appellants claim that the evidence secured by a search of their ship, BUSINESS STINKS, was obtained in violation of their Fourth Amendment rights and should have been excluded. They also allege that the government adduced insufficient evidence to demonstrate that the substance discovered was marijuana. Appellant Sorrentino claims in addition that his identity was never established during trial. Finding none of these contentions worthy of safe harbor, we affirm.
The vessel BUSINESS STINKS was first sighted approximately one mile offshore by a customs officer watching the coastal waters from a naval observation tower at 11:30 p. m. December 30, 1977. The officer notified customs officers patrolling the waters that he had observed a vessel apparently capable of traveling to and from foreign waters not seen to have left port that evening.
Acting on this information, a customs patrol located the vessel and approached her. Customs Patrol Officer Settles testified that he noticed that the vessel was wallowing, as if she bore a heavy load, and that the waterline mark nevertheless appeared normal, suggesting to him that the ship had a false waterline. The cabin area was completely dark and the front windshield of the vessel was covered with canvas. Two men were on the bridge.
As the vessel passed the customs ship, Settles saw its name. BUSINESS STINKS was on a list of suspect vessels given Settles two weeks earlier by his supervisor who had obtained the information from the Fort Lauderdale Police Department.
As a result of their suspicions, the customs agents turned on their blue light and stopped the BUSINESS STINKS. The men on board refused to identify themselves or provide registration papers. Two customs officers therefore boarded the vessel. While Settles proceeded to the bridge to check for registration, Officer Collins went to the cabin. He smelled the odor of marijuana and, upon opening the cabin door, discovered a large number of bales. Settles testified that he also smelled marijuana from his position on the way to the bridge.
Kleinschmidt and Sorrentino, the men on the bridge, were arrested for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. At the bench trial Settles was the sole witness for the government. He identified both appellants to the court by their descriptions, although not by name. No chemist appeared; prior to trial defense counsel and the government stipulated that the chemist's testimony would be that the suspect bales found on board the vessel were marijuana. Both defendants were convicted after the court rejected their motion to suppress.
The magistrate's report, adopted by the district court, approved the actions of the customs agents either as a border search premised on reasonable suspicion arising from articulable facts that the BUSINESS STINKS had just crossed the border or had had contact with a foreign vessel or as an investigatory stop under the standards of United States v. Brignoni-Ponce, 1975, 422 U.S. 873, 884, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607. Although we cannot agree that, as a matter of law, the customs officials had reason to believe the vessel had a sufficient nexus with the border to justify a border search, we do conclude that there was statutory and constitutional authority for their actions, and the motion to suppress was properly denied.
Customs officials have the power under 19 U.S.C. § 1581(a) to stop and board vessels in customs waters for a routine documents check even in the absence of a modicum of suspicion. United States v. Freeman, 5 Cir. 1978, 579 F.2d 942, 945; United States v. Whitaker, 5 Cir. 1979, 592 F.2d 826 (1979). Even if we were to apply to blue water the standards of Brignoni-Ponce and Delaware v. Prouse, 1979, --- U.S. ----, ----, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, requiring reasonable suspicion of wrongdoing before automobiles may be subjected to a minimally intrusive investigatory stop, See United States v. Williams, 5 Cir. 1979, 589 F.2d 210; United States v. Williams, 5 Cir. 1977, 544 F.2d 807, 811, such reasonable suspicion was present in this case.
The vessel approached the coast late at night, and had not been seen leaving port earlier. It was of a type capable of foreign travel. The customs officials noted that the vessel was wallowing, as if it were heavily loaded, but that the waterline appeared high, suggesting that it had been altered. The cabin was dark, and the windshield covered by canvas. The name of the vessel was on a list of suspect ships furnished customs authorities by the Fort Lauderdale police department. The occupants of the ship refused to respond to questioning when customs officers approached. All these circumstances combined to provide reasonable suspicion of wrongdoing sufficient to justify an investigatory stop and boarding.
Once on board, a further search could be constitutionally validated only by the...
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U.S. v. Zurosky, Nos. 79-1088
...defined as officers of the customs. 19 U.S.C. §§ 1401(i), 1709(b), and 14 U.S.C. § 89(b).10 As recently noted in United States v. Kleinschmidt, 596 F.2d 133, 135 (5th Cir.), cert. denied, --- U.S. ----, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979), under 19 U.S.C. § 1581, customs officials have tra......
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