U.S. v. Reeh, 84-5724

• Decision Date: 27 January 1986
• Docket Number: No. 84-5724,84-5724
• Citation: 780 F.2d 1541
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Harry REEH, Arlington Douglas Sprecher, Theodore Duaine Jorden and Gary Michael Ryan, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1541

780 F.2d 1541

UNITED STATES of America, Plaintiff-Appellee, v. Richard Harry REEH, Arlington Douglas Sprecher, Theodore Duaine Jorden and Gary Michael Ryan, Defendants-Appellants.

No. 84-5724.

United States Court of Appeals Eleventh Circuit.

Jan. 27, 1986.

Carlton & Carlton, Philip Carlton, Jr., Miami, Fla., for defendants-appellants.

Joseph Buchanan, Linda Collins-Hertz, David Leiwant, Thomas Fitzgerald, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before VANCE and HATCHETT, Circuit Judges, and ATKINS, ^* District Judge.

VANCE, Circuit Judge:

The defendants in this case were convicted on drug trafficking charges after the United States Coast Guard stopped and boarded their vessel in international waters and found it to contain a large amount of marijuana. Concluding that the Coast Guard's boarding of the vessel was reasonable under the fourth amendment, we affirm the convictions.

I.

On January 13, 1982, the Coast Guard cutter TAMAROA sighted a vessel in international waters near the southeastern tip of Cuba. The vessel was traveling northeast through an area known as the "Windward Passage," a route often used by drug smugglers attempting to transport their cargoes to the United States.

As the TAMAROA approached the vessel, Coast Guard Commander Pettit tentatively identified the craft as the JIM HAWKINS. Commander Pettit was familiar with the JIM HAWKINS, a high-quality motor sailer of unusual design, from a magazine article and from having examined the craft personally several years earlier in the United States. The ship's identity was confirmed when Commander Pettit observed the name JIM HAWKINS on the vessel's stern.

The TAMAROA initiated radio contact with the JIM HAWKINS and was told that the vessel's home port was Georgetown, Grand Cayman, that the vessel was of United Kingdom registry, that those aboard were Canadian citizens, and that the vessel was headed for the Bahamas. Commander Pettit remembered that the JIM HAWKINS had been an American vessel when he had last seen it, but was told by an unidentified spokesman aboard the boat that it had been sold. Commander Pettit requested permission to board the JIM HAWKINS for a document and identification check. The spokesman denied the request, pointing out that the JIM HAWKINS was a U.K. flag vessel on the high seas and hence not subject to the jurisdiction of the U.S. Coast Guard.

The denial of permission to board worried Commander Pettit; it sounded unusually defensive and legalistic. Other factors also aroused Commander Pettit's suspicions. Although he believed the voyage would have been more economical by sail, the JIM HAWKINS was proceeding under engine power. The vessel was riding low in the water and appeared to be heavily laden. The waterline was dirty, something Commander Pettit considered unusual for a prize vessel such as the JIM HAWKINS.

As a result of his suspicions, Commander Pettit requested and received authority from his Coast Guard superiors to board the vessel. Permission was not obtained from British authorities, although Britain withdrew its right to object to the boarding several days after the incident. Upon boarding, a party from the TAMAROA discovered four crew members--the defendants--and, eventually, ¹ a large quantity of marijuana.

The crew members, who turned out to be Americans, not Canadians, were arrested and taken to Miami. Each was charged with violating 21 U.S.C. Sec. 955a(b), which prohibits possession of controlled substances with intent to distribute by a U.S. citizen on any vessel, and 21 U.S.C. Sec. 955c, which outlaws conspiracy to violate section 955a. After a somewhat complicated procedural history which included a previous appeal to this court, United States v. Reeh, 725 F.2d 633 (11th Cir.1984), all four defendants were convicted on both the substantive and conspiracy counts. On appeal, the defendants contend that the Coast Guard's stopping and boarding of the JIM HAWKINS constituted an unreasonable seizure of the vessel in violation of the fourth amendment. ² Consequently, they argue, the district court erred in refusing to suppress the evidence as a result of the illegal seizure.

II.

A.

Our consideration of this case must begin with the former fifth circuit's en banc decision in United States v. Williams, 617 F.2d 1063 (5th Cir.1980). In Williams, the court held that the Coast Guard may properly stop and board a foreign vessel in international waters under 14 U.S.C. Sec. 89(a) if it has a reasonable suspicion that the vessel is engaged in smuggling contraband into the United States. Id. at 1076. Existence of such "reasonable suspicion," the court concluded, satisfies both section 89(a)'s requirement that the vessel be "subject to the jurisdiction, or to the operation of any law, of the United States," and the fourth amendment's requirement that the seizure be reasonable. Under Williams, therefore, the seizure of the JIM HAWKINS was proper, and the evidence in question admissible, if the Coast Guard reasonably suspected that the vessel was being used to smuggle drugs or other contraband into this country. ³

B.

As with probable cause, there is no litmus test for reasonable suspicion; "[e]ach case must turn on the totality of the particular circumstances." United States v. Brignoni-Ponce, 422 U.S. 873, 885 n. 10, 95 S.Ct. 2574, 2582 n. 10, 45 L.Ed.2d 607 (1975). Nevertheless, our precedents circumscribe our inquiry into the existence of reasonable suspicion to some extent. It is settled, for example, that a mere generalized suspicion or hunch does not constitute reasonable suspicion. United States v. Villamonte-Marquez, 652 F.2d 481, 488 (5th Cir. Aug. 3, 1981), reversed on other grounds, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed. 22 (1983). Instead, reasonable suspicion must be based on "specific articulable facts, together with rational inferences from those facts." Brignoni-Ponce, 422 U.S. at 884, 95 S.Ct. at 2582. On the other hand, it is also well established that circumstances completely consistent with legal conduct may still amount to reasonable suspicion. In United States v. Ruano, 647 F.2d 577 (5th Cir. Unit B 1981), for instance, Customs Service agents observed two boats traveling at an unusually high speed at 8:15 a.m. The agents saw only one person on each boat, too few for fishing, and noted that the boats did not observe the usual custom of slowing down at a particular point. There could have been any number of entirely innocent explanations for the circumstances observed by the Customs Service. Nevertheless, we held that the circumstances justified reasonable suspicion. See also United States v. Andreu, 715 F.2d 1497 (11th Cir.1983); United States v. Gollwitzer, 697 F.2d 1357 (11th Cir.1983). Indeed, because an officer "is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling," Brignoni-Ponce, 422 U.S. at 885, 95 S.Ct. at 2582, circumstances which would not seem the least bit suspicious to the casual observer may, to an officer, constitute grounds for reasonable suspicion. Similarly, since reasonable suspicion depends upon the "totality of the circumstances," Brignoni-Ponce, 422 U.S. at 885 n. 10, 95 S.Ct. at 2582 n. 10, circumstances which, considered individually, would not seem particularly suspicious even to an officer may justify reasonable suspicion when considered together. See, e.g., Andreu, 715 F.2d at 1499-1500 (circumstances included time of day, amount of teakwood on deck, and fact that deck was wet).

We also note that what constitutes reasonable suspicion varies to some extent with the intrusiveness of the search or seizure in question. " '[T]he greater the intrusion, the greater must be the reason for conducting a search that results in such invasion.' ... Thus, what constitutes 'reasonable suspicion' to justify a particular search may not suffice to justify a more intrusive or demeaning search." United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir.1978) (citation omitted).

With these principles in mind, we turn to consideration of the particular circumstances surrounding the stopping and boarding of the JIM HAWKINS.

C.

The government points to several "articulable facts" which, it argues, taken together gave the Coast Guard reasonable grounds to suspect that the vessel was being used for smuggling. Permission to board was denied in a defensive manner. The ship was riding low in the water and appeared to be heavily laden. The waterline was dirty. Although the weather was suitable for sailing, the vessel was proceeding on auxiliary power. ⁴

The defendants do not dispute the existence of the circumstances relied upon by the Coast Guard, but rather contend that they do not justify reasonable suspicion. They argue that the circumstances were entirely consistent with innocent conduct. We agree that any of the circumstances, taken individually, might not seem particularly suspicious. Even considered as a group, such circumstances could very well be present in the absence of criminal activity. As noted above, however, that particular circumstances do not necessarily indicate illegal conduct does not mean that the circumstances do not support a reasonable suspicion of illegal conduct. A holding that circumstances must be completely inconsistent with innocent activity before they may support reasonable suspicion would prohibit law enforcement officers from stopping and boarding a foreign vessel on the high seas unless the officers could, before boarding, already prove the existence of criminal activity. Such a holding would wreak havoc with the concept of reasonable suspicion and would render the Coast Guard virtually powerless against drug smugglers outside U.S. territorial waters.

The defendants also contend that reasonable suspicion could not properly be based, even in part, on their denial of permission to board. Th...