U.S. v. Lopez

• Decision Date: 28 May 1985
• Docket Number: No. 84-5362,84-5362
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ramon Antonio LOPEZ and Carlos Abraham Gomez, Defendants-Appellees.

Page 632

761 F.2d 632

UNITED STATES of America, Plaintiff-Appellant, v. Ramon Antonio LOPEZ and Carlos Abraham Gomez, Defendants-Appellees.

No. 84-5362.

United States Court of Appeals, Eleventh Circuit.

May 28, 1985.

Stanley Marcus, U.S. Atty., Linda Collins-Hertz and David O. Leiwant, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellant.

Mark King Leban, Miami, Fla., for defendants-appellees.

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

Before FAY and JOHNSON, Circuit Judges, and DYER, Senior Circuit Judge.

PER CURIAM:

I. STATEMENT OF THE CASE

A. The Facts

On May 3, 1983, a Coast Guard vessel sighted the C & E, the ship on which appellees were travelling, heading toward the Florida Coast. Approaching the C & E to make a document and safety search, Coast Guard Officer Garza noticed that the vessel was riding low in the water, as if it were carrying heavy cargo. When he boarded the C & E, Garza discovered there were only two persons aboard: Lopez, the master, who spoke no English; and Gomez, the crew, who had some facility with the language and served as interpreter. Garza requested the registration of the vessel, which was provided, and personal identification from appellees. Lopez provided an expired Florida driver's license. Gomez identified himself as Carlos Gonzales, but was unable to spell the surname when asked. Appellees stated that they were resident aliens, but neither was able to produce a green card. The vessel registration showed that the ship was owned by Antonio Perez, who was not aboard. Lopez stated that Perez was a friend who had given him verbal permission to use the boat, but he was unable to provide a phone number for Perez. While he was conducting a safety-type sweep of the vessel, Garza noticed approximately three feet of unaccounted-for space between the ice hold and the engine room. Though there were ventilation pipes leading from this space, there was no visible access to it, and Garza suspected it contained a hidden compartment. When he tapped on the wall of the space, Garza heard a solid, "dead thud," as if something might be in there.

Garza notified his commanding officer that he had strong suspicions that the C & E contained a hidden compartment, that the owner was not on board and that the master and crew were resident aliens without green cards. Garza was instructed to ask Lopez whether he would follow the Coast Guard vessel to the Islamorada Coast Guard base and whether they would permit two members of the boarding party to remain on board during the three-hour trip. Lopez agreed and took the C & E to Islamorada. At Islamorada, the vessel was examined by Customs Patrol Officer Arnold, a veteran of over 200 searches for secret compartments. Garza told him that the configuration of the vessel resembled that of a previously-seized vessel containing a secret compartment which Garza had viewed during a training seminar. Arnold observed that the ship had a raised deck with a larger-than-normal fuel tank and a false water line, painted to make the vessel look as though it was riding higher in the water than it actually was. Examining the interior of the main cabin, Arnold noticed fresh fiberglass work under the stove above the three feet of unaccounted-for space earlier noted by Garza. He then removed the stove and used an axe to crack the fiberglass. He found a wooden panel underneath and lifted it to reveal bales of marijuana.

Garza then read Gomez his constitutional rights in English and Arnold gave Lopez his rights in Spanish; each signed waiver forms. Lopez stated that on their return from Orange Cay, to take some diesel fuel to a generator, they had seen the bales of marijuana floating in the water. They had placed them in the hidden compartment, fiberglassed over the board and painted it. Gomez signed a written statement prepared by Arnold.

B. Course of Proceedings

A federal grand jury in the Southern District of Florida returned an indictment charging appellees with conspiring to possess marijuana with the intent to distribute it, in violation of 21 U.S.C.A. Secs. 955a(a) and 955c (Count I), and possessing marijuana with intent to distribute it, in violation of 21 U.S.C.A. Sec. 955a(a) and 18 U.S.C.A. Sec. 2 (Count II).

Appellees filed a motion to suppress the evidence seized in the search of the C & E, and statements they had made following their formal arrests. The court held an evidentiary hearing on the motion to suppress and subsequently granted it. From this decision the government appeals.

II. THE SUPPRESSION ORDER

A. Fourth Amendment Standing

As the Supreme Court has recently noted, "the Fourth Amendment does not protect subjective expectations of privacy that are unreasonable or otherwise 'illegitimate'." New Jersey v. T.L.O., --- U.S. ----, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985). "To receive the protection of the Fourth Amendment, an expectation of privacy must be one that society is 'prepared to recognize as legitimate.' " Id. (quoting Hudson v. Palmer, --- U.S. ----, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984)). The requirement for a justifiable expectation of privacy is two-fold. The defendant must show an actual or subjective expectation of privacy in the area searched and the expectation must be one that "society is prepared to recognize as 'reasonable.' " Hudson v. Palmer, 104 S.Ct. at 3199 (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)).

In New Jersey v. T.L.O., 105 S.Ct. 733, the Supreme Court found that a student had a reasonable expectation of privacy in her purse, despite the state's argument that the need for maintenance of discipline overrode any expectation of privacy by the student. The Court contrasted this situation with that of the need to maintain order in a prison such that prisoners may not retain a legitimate expectation of privacy in their prison cells. Id. at 742. See Hudson v. Palmer, supra. The Court thus balanced the defendant's claim of privacy in light of "the government's need for effective methods to deal with breaches of public order." New Jersey v. T.L.O., 105 S.Ct. at 741. Our courts have frequently recognized the need for effective methods to deal with the critical and pervasive problem of the importation of drugs. See United States v. Williams, 617 F.2d 1063, 1087 (5th Cir.1980) (en banc). This case is more analogous to the situation the Court faced in Hudson v. Palmer (the prison cell search) than that faced in New Jersey v. T.L.O. (the student purse search) in terms of the needs of the government in preventing breaches of the public order as balanced against the defendant's subjective expectations of privacy.

Moreover, the standards which define privacy interests at sea may be more restrictive than those applicable on land: " 'the heavy overlay of maritime law and the long practice of regulatory stops, inspections and searches' by Customs officers further diminish the privacy interests of sailors." United States v. Herrera, 711 F.2d 1546, 1553 (11th Cir.1983). It is not sufficient, for example, that a sailor have the right to exclude others from a ship in order to have a legitimate expectation of privacy, because a Coast Guard officer may board without permission to conduct a safety and document search and gain access to all common areas of a boat. United States v. Herrera, supra, 711 F.2d at 553 and n. 12. Courts have therefore held that "neither captain nor crew has a legitimate expectation of privacy ... in an area which is subject to the common access of those legitimately aboard the vessel." United States v. Freeman, 660 F.2d 1030, 1034 (5th Cir. Unit B 1981). Such common areas have been held to include cargo holds, United States v. Williams, 617 F.2d 1063 (5th Cir.1980); ice holds, United States v. DeWeese, 632 F.2d 1267 (5th Cir.1980); and engine rooms, United States v. Stuart-Caballero, 686 F.2d 890 (11th Cir.1982), cert. denied, 459 U.S. 1209, 103 S.Ct. 1202, 75 L.Ed.2d 444 (1983). This does not mean, however, that a sailor lacks an expectation of privacy in any area of a ship; living and sleeping quarters of the crew, United States v. Whitmire, 595 F.2d 1303, 1312 (5th Cir.1979), and private spaces such as dufflebags and footlockers, United States v. DeWeese, supra, 632 F.2d at 1271, have been held to be sufficiently private as to confer Fourth Amendment standing upon those with dominion over them when they are subjected to search.

However, the instant case does not involve the search of such private spaces as the sailors' sleeping quarters or personal belongings; rather, this was a search of a secret compartment beneath the deck of the boat. Obviously, appellants had an actual, subjective expectation of privacy in the area searched: they did not want the drugs found. We are not, however, prepared to say that such an expectation is "one that society is prepared to recognize as 'reasonable'." Hudson v. Palmer, 104 S.Ct. at 3199 (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). A secret compartment constructed within the confines of the hull of the ship is totally unlike a personal dufflebag or footlocker in terms of the uses to which it may be put, and the expectations of exclusive control to which it gives rise. We cannot imagine that society would recognize a reasonable expectation of privacy in the use of "dead space" in the hull of a ship, sealed with permanent fiberglass and painted to match the surrounding surfaces, for the legitimate storage of personal items. Appellants have not met the second requirement in asserting standing, which the Supreme Court has noted is of "controlling importance." Hudson v. Palmer, 104 S.Ct. at 3199 n. 7. They therefore have no standing to challenge the Coast Guard's search in this case.

B. The Validity of the Search

Even if the foregoing analysis were incorrect, and appellants...