U.S. v. Monroy, 79-5029
| Decision Date | 19 March 1980 |
| Docket Number | No. 79-5029,79-5029 |
| Citation | 614 F.2d 61 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Miguel Saiz MONROY, Celso Rene Sanchez, a/k/a Raul Brito, Hernan Ahumada, Manuel Ospina, Lorenzo Robledo Garcia and Jairo Longaray, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Curtis Fallgatter, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.
Louis R. Hardin, Jr., Jacksonville, Fla. (Court-appointed), for Monroy.
David R. Fletcher, Jacksonville, Fla. (Court-appointed), for Sanchez.
William F. Kachergus, Jacksonville, Fla. (Court-appointed), for Ahumada.
Wayne E. Flowers, Jacksonville, Fla. (Court-appointed), for Ospina.
William J. Dorsey, Jacksonville, Fla. (Court-appointed), for Garcia.
Edward W. Dawkins, Jacksonville, Fla. (Court-appointed), for Longaray.
Appeals from the United States District Court for the Middle District of Florida.
Before COLEMAN, Chief Judge, KRAVITCH and HENDERSON, Circuit Judges.
On August 8, 1978, the six appellants, Enrique Yabur, and sixteen other crewmembers were arrested on board the Heidi on the high seas, off the East coast of Florida. Along with nine land-based defendants, they were indicted on one count of conspiracy to import marijuana and one count of conspiracy to possess with intent to distribute marijuana. The crewmembers were tried separately from the land-based defendants. In a jury trial the appellants and Yabur were convicted of the importation and acquitted of conspiracy. The remaining crewmembers were acquitted on all counts. 1
The appellants raise numerous issues. Only one merits discussion: the contention that the Coast Guard's warrantless search of the Heidi violated the Fourth Amendment; therefore, the 225,469 pounds of marijuana found aboard should have been suppressed.
In June, 1978, two Drug Enforcement Agency (DEA) undercover agents began discussing with several of the land-based defendants the possibility of importing marijuana from Colombia to Florida. The agents agreed to furnish the boats with which to transport the marijuana from the mothership at sea to the Florida coast.
One of the land-based defendants traveled to Colombia and arranged for a ship named the American Merchant to be loaded with marijuana. Upon his return he furnished a sketch of the vessel and described its appearance in detail. Finally, after a number of changes, the group agreed upon the coordinates for the unloading at sea. The DEA informed the Coast Guard of the vessel description and of the coordinates.
Meanwhile, on May 26, a ship named the Mereghan II arrived at the island of Aruba in the Netherlands Antilles. A Colombian replacement crew, which included the appellants, began boarding on June 7. The ship then sailed to Cartagena, Colombia.
On the afternoon of August 5, a Customs Service pilot observed the Heidi loitering, riding low in the water off the Mantanilla Shoal on the west end of the Little Bahama Banks. The pilot informed the Coast Guard and remained at the scene until the Coast Guard cutter Cape Knox arrived. The Cape Knox noted that the vessel was flying no flag and that it matched the mothership description which one of the land-based defendants had earlier given the DEA undercover agent.
The Cape Knox followed the Heidi as it sailed on various courses and distances. At 6:30 a. m. on August 6, while within half a mile of the Heidi, the Cape Knox retrieved from the water a small bale which proved to be two pounds of marijuana which had been in the water for about seven minutes.
At 7:00 a. m. the Cape Knox contacted the Heidi by radio. The Heidi stated that its home port was Willemstead, Netherlands Antilles; its last port of call was Colon, Panama; its next port of call was Hamilton, Bermuda; its cargo consisted of hi-fi equipment and spices; and its call sign was 2PQE1.
The Cape Knox talked to the Heidi again at 6:30 a. m. on August 7, receiving the same answers although there was some hesitancy in revealing the next port of call. In addition, the Heidi gave the name of its agent in Panama. At 3:00 p. m. the Cape Knox communicated with the Heidi for a third time.
Checking through diplomatic channels, the Coast Guard learned that the Heidi was not registered in the Netherlands Antilles, as it had claimed, or in the United Kingdom, as its call number had indicated. The Coast Guard also discovered that the Heidi's alleged agent in Panama did not exist. With this information the Commandant of the Coast Guard decided that the Heidi was a stateless vessel and could be boarded for a determination of its documentation and registry.
Around sunset, the Cape Knox received the Commandant's permission to board the Heidi, but because of darkness the boarding was delayed until the next morning. At 7:12 a. m. on August 8, having gained permission from a Heidi crewmember who presented himself as the captain, Coast Guard Ensign Gary McGlone boarded the Heidi. The Heidi was within 150 miles of the offload coordinates.
While searching the bridge for registration papers, McGlone noted that the name "Heidi " had been freshly painted. Finding no documents on the bridge, McGlone proceeded to the captain's cabin, located below decks. Upon descending the ladder into the hold, he detected a strong odor of marijuana. McGlone discovered the controlled substance in the aft and forward food storage lockers and in the number one and two cargo holds. In all, 225,469 pounds of marijuana were stowed on the ship. Continuing the search, McGlone found several items, such as life preservers, with the name "Mereghan II " etched on them.
Conceding that the Coast Guard had probable cause to stop and search the Heidi, the appellants contend that the Fourth Amendment required the Coast Guard to obtain a search warrant before boarding the vessel. The argument is that probable cause existed several days before the search and the Coast Guard thus had ample time to obtain a warrant.
The appellants rely heavily upon Dicta in United States v. Conroy, 589 F.2d 1258 (5th Cir., 1979). In that case the Coast Guard cutter Dauntless located the Nahoa, an American vessel which the Coast Guard had probable cause to believe was carrying marijuana. The Nahoa fled and stopped only after the Dauntless threatened to shoot. The Court upheld the warrantless search but added, "(W)e may assume, arguendo, that a warrant would have been necessary had the Nahoa docilely continued on its course, approached the...
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