U.S.A v. Pickett

• Decision Date: 02 March 2010
• Docket Number: No. 09-30142.,09-30142.
• Citation: 598 F.3d 231
• Parties: UNITED STATES of America,Plaintiff-Appellee, V. Antonnio PICKETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

598 F.3d 231

UNITED STATES of America, Plaintiff-Appellee, V. Antonnio PICKETT, Defendant-Appellant.

No. 09-30142.

United States Court of Appeal Fifth Circuit.

Date : March 2, 2010.

Brian Marshall Klebba (argued) and Helen Diane Copes, Asst. U.S. Attys., New Orleans, LA, for U.S.

Robin Elise Schulberg, Asst. Fed. Pub Def. (argued), New Orleans, LA, for Pickett.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLEMENT, PRADO and ELROD, Circuit Judges.

PER CURIAM:

Defendant Antonnio Pickett pleaded guilty to one count of possession of child pornography. He appeals the district court's denial of his motion to suppress physical evidence and custodial statements. Pickett argues that the warrantless search of his belongings by Immigration and Customs Enforcement ("ICE") agents was not justified by the "border search" exception to the Fourth Amendment. We AFFIRM.

FACTS AND PROCEEDINGS

The facts of this case are not in dispute. Pickett worked as a commercial diver on the CM15, a pipelay/bury barge which was stationed at an oil and gasproduction site thirty miles off the coast of Louisiana in international waters. During the time Pickett was stationed on the CM15, ICE learned that Pickett had subscribed to child pornography websites in December 2006 and January 2007. ICE also discovered that Pickett had an outstanding warrant for domestic violence and that he would be returning to shore on July 2, 2007. On July 2, Pickett left the CM15 after ending his shift and boarded an offshore supply vessel. He and five other passengers traveled a distance of approximately thirty miles from Main Pass 296 through international waters to the Martin-Mid-Stream Dock in Venice, Louisiana. When he arrived after the three-hour voyage, a team of two ICE agents, four customs agents, and two Plaquemines Parish Sheriffs deputies encountered Pickett when he docked in Venice. ICE agents detained him and conducted a "secondary customs inspection" of Pickett and the five other crew boat passengers. The agents relied on the border search exception to view the contents of Pickett's thumb drives, portable hard drives, and laptop memory card. No warrant was obtained for the search which revealed several images of child pornography. Following the search, Pickett waived his Miranda rights and admitted to accessing and downloading the illegal pornographic images. Thereafter agents obtained a warrant for a more intrusive search and eventually found several hundred illegal images and videos.

Before the district court, Pickett moved to suppress the child pornography images found during the search at the Venice dock, along with any statements he made to law enforcement officers on that date. He also sought to suppress, as fruits of an "illegal warrantless search, " those materials revealed in the subsequent search which was conducted pursuant to a warrant. Pickett claimed that he was entitled to have these materials suppressed because ICE agents did not obtain a warrant for the July 2 search. He disputed the Government's argument that the warrantless search was justified under the "border search exception, " as articulated in United States v. Stone, 659 F.2d 569 (5th Cir. 1981). He argued that the border search exception to the Fourth Amendment did not apply to the agents' search of his possessions on the theory that his voyage to shore involved "no border crossing, " because it allegedly originated from a "federal enclave." Pickett contends that the CM15 was a "federal enclave" under the Outer Continental Shelf Lands Act ("OCSLA"), which extends adjacent state law as adopted federal law to the "subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon." 43 U.S.C. § 1333(a)(2)(A). Without deciding whether the CM15 was an OCSLA situs, and therefore a federal enclave, the district court denied the motion. The court reasoned that the border search exception applied because Pickett was "outside the country, headed in, " and he crossed the border "from international waters." Preserving his right to appeal the denial of his motion to suppress, Pickett pled guilty to one count of possession of child pornography. He was sentenced to 87 months' imprisonment.

STANDARD OF REVIEW

"In an appeal of a denial of a motion to suppress evidence, 'we review the district court's factual findings for clear error and its legal conclusions, including its ultimate conclusion as to the constitutionality of the law enforcement action, de novo.'" United States v. Harris, 566 F.3d 422, 433 (5th Cir.2009) (quoting United States v. Chavez, 281 F.3d 479, 483 (5th Cir.2002)). We view the evidence presented at the suppression hearing inthe "light most favorable to the prevailing party." Id.

DISCUSSION

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons... and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." U.S. Const, amend. IV. "[W]arrantless searches and seizures are unreasonable per se unless they fall within a few narrowly defined exceptions." United States v. Rivas, 157 F.3d 364, 367 (5th Cir.1998). The border search is one such exception, and it has a "history as old as the fourth amendment itself." United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). The border search exception permits a government officer at an international border to conduct a "routine" search and seizure, "without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country." United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (citation omitted).¹ "A border search need not take place at the actual border." United States v. Stone, 659 F.2d 569, 572 (5th Cir.1981). The search may take place at " 'the functional equivalent of the border, ' such as the port where a ship docks in this country after entering our territorial waters from abroad." Id. (quoting United States v. Prince, 491 F.2d 655 (5th Cir. 1974)).

Pickett argues that because ICE agents knew he was returning to shore from a "federal enclave, " the border search exception was inapplicable to the search of his belongings at the dock. We reject this argument as foreclosed by our decision in Stone. 659 F.2d 569. In Stone, we held that the "critical fact" we must look to in determining whether the border search exception applies is "whether or not a border crossing has occurred, "—not the point of origin of the defendant's journey.² 659 F.2d at 573. Stone involved a border search of a small aircraft, which was intercepted flying low from international airspace toward Florida. When the plane landed at Orlando International Airport, agents conducted a warrantless border search that revealed several hundred pounds of narcotics. Id. at 571. The defendant moved to suppress the evidence on the ground that the border exception did not apply because the Government had failed to "demonstrate not only that a border has been crossed but, additionally, that the entering craft has left foreign land." Id. We rejected the defendant's argument as "tenable neither in law or logic, " recognizing that "in no case has a border search been invalidated because the object's departure from foreign soil was not demonstrated." Id. at 573. In so holding, we affirmed that the applicability of the border search exception "rests on the 'critical fact' of whether or not a border crossing has occurred." Id. at 573 (quoting Ramsey, 431 U.S. at 620, 97 S.Ct. 1972 (emphasis added)).

Pickett has failed to distinguish the instant case from Stone. He argues that Stone does not control because here, unlike in Stone, the Government knew that the defendant was traveling to the United States from a federal enclave. This distinction is immaterial. Stone holds that defendant's point of origin is irrelevant to the constitutionality of a border search so long as a border crossing has occurred. As such, the government's knowledge of that point of origin is equally irrelevant. We likewise reject Pickett's argument that no "border crossing" occurs where a defendant enters the United States after crossing international waters if he departs from a domestic point of origin. Our precedent establishes that a border crossing occurs whenever a vessel crosses from international waters into the United States, regardless of the defendant's departure point.³

Even assuming, arguendo, that the CM15 was an OCSLA situs and Pickett did depart from a federal enclave, ⁴ there is no doubt that the border search was proper because Pickett crossed the border from "international waters" en route to the dock in Louisiana. Pickett suggests we consider his voyage akin to a flight over international waters between known domestic points of origin—a situation which a sister circuit has suggested merits different treatment under the Fourth Amendment due to the substantially diminished likelihood of bringing aboard contraband mid-journey while on an airplane.⁵ This comparison is spurious, as Pickett traveled by boat on his three-hour voyage to shore, and it is not difficult to imagine picking up contraband while crossing open waters. We therefore conclude that the border search of Pickett's belongings was justified where it is undisputed that he entered the United States by boat from international waters.

CONCLUSION

The judgment of the district court is AFFIRMED.

EDITH BROWN CLEMENT, Circuit Judge, concurring in the judgment only:

Pickett's sole argument on appeal is that there was no "border crossing" within the meaning of Stone because he moved to shore from a federal enclave as defined in OCSLA and government agents were aware that he had not made an intervening stop in a foreign country. Confronting this argument requires, as a first step, that we determine whether...