U.S. v. Peterson

• Decision Date: 09 March 1987
• Docket Number: 85-5173 and 85-5174,85-5168,Nos. 85-5167,s. 85-5167
• Citation: 812 F.2d 486
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Nicholas PETERSON, Darryl Ray Hood, Stephen Allen Falk, and Paul Jules Goudeau, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 486

812 F.2d 486

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Nicholas PETERSON, Darryl Ray Hood, Stephen Allen Falk, and Paul Jules Goudeau, Defendants-Appellants.

Nos. 85-5167, 85-5168, 85-5173 and 85-5174.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 9, 1986.

Submission Vacated Aug. 12, 1986.

Resubmitted Sept. 30, 1986.

Decided March 9, 1987.

Ephraim Margolin, San Francisco, Cal., Victor Sherman, Santa Monica, Cal., and Juanita R. Brooks, San Diego, Cal., for appellants.

Roger W. Haines, Jr., Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Robert E. May, Roger W. Haines, Jr., Asst. U.S. Attys., San Diego, Cal., for appellee.

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

Before BROWNING, KENNEDY and BEEZER, Circuit Judges.

KENNEDY, Circuit Judge:

Appellants appeal their convictions for possession of a controlled substance (marijuana) in United States customs waters with the intent to distribute and for conspiracy to destroy goods to prevent seizure, in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 955a(c), and 18 U.S.C. Secs. 371, 2232. Following denial of their motions to suppress evidence, appellants entered conditional guilty pleas on the possession charge. The parties submitted the conspiracy charge to the district court on a set of stipulated facts, and the trial court convicted.

In early 1984, the Bangkok office of the Drug Enforcement Agency (DEA) learned from a confidential informant of a plan to smuggle thirty-two tons of marijuana from Thailand. The DEA identified appellant Falk as a participant and notified Thai authorities of his presence in that country. In Bangkok, Thai narcotics authorities wiretapped telephones in Falk's rented apartment, and at a government post office where appellant Peterson made calls. The Thai officials provided information from the wiretaps to the DEA, and, since the tapes were in English, the DEA translated some of them.

The DEA and Thai authorities learned that a ship, the Allyson, was leaving Thailand for the West Coast of the United States. The Allyson stopped in Manila for repairs and then departed, though the Manila office of the DEA and Philippine authorities had been notified of the investigation. Later, the DEA seized the ship in Alaska and found approximately twelve tons of marijuana on board.

The DEA learned that the same persons who arranged for the Allyson shipment would use another vessel, the Pacific Star, for a second marijuana shipment from Thailand. The DEA found that the Pacific Star was en route to the Philippines and notified Philippine authorities. The Philippine Narcotics Command (NARCOM) commenced surveillance on an associate of Falk who resided at an apartment in Manila. NARCOM discovered a tri-band radio transmitter was operating illegally from the apartment and began monitoring and taping the radio transmissions between the apartment and the Pacific Star. The frequencies had been obtained from the DEA, and, as many of the transmissions were in code, the DEA deciphered them. Between November 29, 1984, and December 10, 1984, Philippine authorities tapped the telephone in the apartment and provided the DEA with tapes of those interceptions as well. In one of the calls intercepted by the telephone tap, someone talking from the United States referred to "100 south of Cabo."

The United States Coast Guard cutter Citrus was engaged to intercept the Pacific Star and found it as it headed to a position one hundred miles south of Cabo San Lucas. Lieutenant Commander Giraitis contacted the Pacific Star by radio and requested the ship's registration, identification, and travel itinerary. The radio operator on board the Pacific Star responded that the ship was Panamanian, had departed the Philippines nonstop for Panama, and was experiencing mechanical difficulties. Giraitis noted that it was unusual for a ship as small as the Pacific Star to travel such a long distance nonstop.

Giraitis informed the radio operator on board the Pacific Star that he was going to verify the ship's registration with Panamanian authorities and seek permission to come on board, unless the Pacific Star would consent to his boarding. Consent was refused. A DEA special agent contacted a Panamanian official concerned with narcotics enforcement and obtained authority for the Coast Guard to search the Pacific Star in the name of the Panamanian government; no formal written authorization was obtained at that time. The next morning Giraitis informed the Pacific Star that a party would board the ship. The ship did not stop, and its crew set it on fire. As the Coast Guard boarded the Pacific Star, that ship rammed the Citrus. The Pacific Star sank, and the Coast Guard recovered the marijuana. The Pacific Star crew jettisoned some marijuana and the Coast Guard recovered it as well.

The principal contention, here and in the district court, has been that the marijuana is inadmissible because unlawfully seized. The bases for appellants' evidentiary challenge are: that discovery of the ship and its contraband is tainted by unlawful wiretaps participated in by United States officials; that the boarding was without statutory authority in any event, among other reasons because the consent of Panama was required and not obtained; and that the search was unlawful because no warrant was obtained. These contentions are unavailing, in part because the factual premises are incorrect and in part because the legal premises are wrong. We explain in further detail.

While neither the Supreme Court nor this court has stated definitively the extent to which fourth amendment protections apply upon the high seas, it has been assumed to apply in our major decisions. See, e.g., United States v. Troise, 796 F.2d 310 (9th Cir.1986); United States v. Cilley, 785 F.2d 651 (9th Cir.1985); United States v. Watson, 678 F.2d 765 (9th Cir.), cert. denied, 459 U.S. 1038, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982). The government makes the same assumption here, so the case is presented as one in which the fourth amendment is applicable. Because there are multiple, and abundant, grounds for sustaining the actions of the Coast Guard, this is not an appropriate decision to delineate the outer limits of the Coast Guard's authority to stop and board on the high seas and then to search below decks.

We begin by considering whether the Philippine wiretap tainted the stop of the vessel and the subsequent discovery of the contraband. The government does not argue that the suspicious behavior of the Pacific Star and its crew, the crew's actions in setting it on fire, the ramming of the Citrus, or jettisoning of the cargo were independent criminal acts so attenuated from the wiretap that the taint is broken; and as the record is somewhat unclear respecting the sequence of these events, we treat the case as one in which suppression of this evidence would be required if evidence from the wiretap itself is inadmissible. We conclude that evidence from the wiretap is not subject to the exclusionary rule under the circumstances of this case.

The appellants invite us to consider the possibility that the evidence is the fruit of illegal wiretaps not only in the Philippines, but also in Thailand. We disagree. The wiretaps in Thailand led the DEA to the seizure of the Allyson, not the Pacific Star. A confidential informant, not the wiretaps, alerted the DEA that the Pacific Star would be in the Philippines. The chain of any taint from the Thai wiretaps was broken. Cf. Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963).

Appellants suggest that the interception of radio transmissions between the apartment in Manila and the Pacific Star was an illegal search. This conclusion is untenable. The broadcasts took place on channels in open use, most often by fishermen. The appellants had no legitimate expectation of privacy in the radio communications. United States v. Rose, 669 F.2d 23, 25 (1st Cir.) (no privacy expectations in radio transmission because not "objectively reasonable"), cert. denied, 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982). The evidence derived from the radio transmissions was not obtained illegally.

These contentions aside, the point reduces to whether the Philippine wiretap, which allowed authorities to locate the Pacific Star, was an illegal search. The government maintains the appellants lack standing to assert that wiretap was illegal, and the district court so held. We conclude, however, that at least one of four appellants has standing to contest its legality.

Appellant Falk declared that he "resided in" the Manila apartment from September 1984 to December 31, 1984. He said also he was a sublessee of the apartment. Although the government had a chance to cross-examine Falk on these matters, it chose not to do so. Falk's assertions in the affidavit are uncontradicted and establish a possessory interest in the apartment sufficient to confer standing. Alderman v. United States, 394 U.S. 165, 176, 89 S.Ct. 961, 968, 22 L.Ed.2d 176 (1969). Our conclusion that Falk had standing requires us to reach the substance of appellants' various claims. In light of our ultimate resolution of these claims, we need not decide whether any of the other appellants had standing.

We must address whether agents of the United States had sufficient participation in the wiretaps to invoke exclusionary rule analysis. With certain exceptions not applicable here, fourth amendment principles do not apply to searches by foreign authorities in their own countries, even if the targets of the search are American. United States v. Rose, 570 F.2d 1358, 1361 (9th Cir.1978). If, however, United States agents' participation in the investigation is so substantial that the action is a joint venture between United States and foreign officials, the law of the foreign country must be consulted at the outset as part of...