U.S. v. Sarda-Villa, SARDA-VILL

• Decision Date: 21 May 1985
• Docket Number: No. 84-5231,SARDA-VILL,M,84-5231
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Evelioario Leonardo Paret-Casola, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1232

760 F.2d 1232

UNITED STATES of America, Plaintiff-Appellee, v. Evelio SARDA-VILLA, Mario Leonardo Paret-Casola Defendants-Appellants.

No. 84-5231.

United States Court of Appeals Eleventh Circuit.

May 21, 1985.

Humberto J. Aguilar, Miami, Fla., for Sarda-Villa.

Mark King Leban, Miami, Fla., for Paret-Casola.

Isaac Mitrani, Lee E. Stapleton, Nancy L. Worthington, Asst. U.S. Attys., Linda Collins Hertz, Sonia O'Donnell, Chief Appellate Section, Miami, Fla., for plaintiff-appellee.

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

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

FAY, Circuit Judge:

This is a search and seizure on the high seas case. Appellants Sarda-Villa and Paret-Casola challenge their convictions for possession with the intent to distribute marijuana, in violation of 21 U.S.C. Secs. 955a and 18 U.S.C. Sec. 2, and Sarda-Villa challenges his additional conviction for conspiracy to possess with the intent to distribute marijuana, in violation of 21 U.S.C. Secs. 955a(c) and 955c. The most important issue in this appeal is whether the district court erred in denying appellants' motion to suppress the marijuana found on the boat seized by United States Customs agents. Appellants also claim that their convictions are based on insufficient evidence. ¹ We affirm.

I. FACTUAL BACKGROUND

On May 25, 1983, at about 5:00 a.m., United States Customs officers who were patrolling the waters six miles offshore of the Miami area, spotted the running lights of a vessel which was coming over the horizon. The vessel, which was heading towards Miami, was coming from the direction of the Bahamas. Customs officers watched the vessel for approximately forty minutes, and waited until it was nearer to the Customs boat to stop it. The officers boarded the boat approximately six miles offshore, well within United States Customs twelve-mile jurisdictional waters.

Upon boarding the vessel, a Customs officer told the three crew members to gather at the "aft" of the boat. One of the officers asked for the captain and Sarda-Villa stepped forward. When asked where he was coming from, Sarda-Villa replied, "Miami". He said he had been out testing the engines and had only been out a short while. When asked if there were any weapons on board the vessel, Sarda-Villa said "yes" and showed the Customs officers a bag which contained a gun.

Both Customs officers noticed several "unusual" things about the MARIA CONSTANCIA. One of the officers testified that the floor of the vessel was covered with a linoleum tile type of material, which is very slick and hazardous to walk on while wet. The officer also noted that the ice in the ice chest was melted, indicating that the crew had been away from the source of the ice for a long period of time.

In addition, the MARIA CONSTANCIA had oversized fuel tanks for a vessel of that size. The boat, a 45-foot trawler, had two tanks, each capable of carrying 800 to 900 gallons of fuel. Each tank was surrounded by new wood and new foam. One of the Customs officers noticed five large fuel containers inside the cabin area. When asked about the purpose of the extra fuel, the captain did not reply. At that point, the Customs officers informed the crew that they were taking the vessel to Miami for further inspection.

The MARIA CONSTANCIA was brought to the Customs dock located on the Miami River, where it was searched by a Customs Patrol Officer.

While examining the seating area above the deck, the officer lifted the cushions on the seating area and saw a removable board which, when removed, revealed a storage compartment. The bottom compartment, which was covered and sealed, did not seem to be part of the deck because it was higher than the rest of the deck. Because this appeared unusual to the officers, they decided to investigate further. By prying through the layers with an ax and crowbar, the officer gained access to the false fuel tanks filled with 82 bales of marijuana, weighing 1,600 pounds. After finding the marijuana, Officer Halley told the three men in Spanish that they were being placed under arrest. Appellant Sarda-Villa then said, "I already knew that the moment we were boarded at sea, outside".

At the suppression hearing, appellant Paret-Casola testified that he could keep strangers from boarding the vessel, he had a financial interest in the marijuana and would profit from its sale, and he personally sealed the marijuana in the false fuel compartments and took steps to close it up so that no smell could be detected. He felt that the false compartments on the MARIA were the "most secret place[s] on the boat." Appellant Sarda-Villa did not testify.

The district court denied the appellants' motion to suppress the marijuana found on the boat. The court ruled that appellants did not have a sufficient expectation of privacy to confer standing. Alternatively, the court ruled that even if the appellants did have standing to challenge the search, the Customs officers had reasonable suspicion such as to warrant a further search of the boat, pursuant to the border search exception, and the search undertaken was reasonable.

II. THE LAW

A. Did appellants have a reasonable expectation of privacy in the hidden fuel tanks?

The district court ruled that appellants did not have standing to challenge the search of the hidden fuel tanks. We agree.

The defendant bears the burden of proving a legitimate expectation of privacy in the areas searched. See Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387 (1978). On appeal, we review the evidence adduced at the suppression hearing in the light most favorable to the government. United States v. Torres, 720 F.2d 1506, 1510 (11th Cir.1983). The legitimacy of the appellants' privacy claim is determined by an examination of the totality of the circumstances. Rakas, 439 U.S. at 152, 99 S.Ct. at 435 (Powell, J., concurring); United States v. Baron-Mantilla, 743 F.2d 868, 870 (11th Cir.1984). Appellants based their privacy claim on three circumstances: the fact that strangers could be excluded from the boat, ² the appellants had a financial interest in the drugs seized, ³ and appellants took elaborate pains to ensure that the hidden compartment containing the drugs would be the most secret place on the boat. Appellants particularly relied on the latter circumstance in support of their claim of standing.

It is clear that "mere presence" aboard a vessel is insufficient to confer standing. United States v. Hensel, 672 F.2d 578, 579 (6th Cir.) (defendant had no legitimate expectation of privacy in stolen truck or its contents), cert. denied, 457 U.S. 1107, 102 S.Ct. 2907, 73 L.Ed.2d 1316 (1982). If the appellant does not own or rent the premises searched, however, he may establish standing by demonstrating "an unrestricted right of occupancy or custody and control of the premises as distinguished from occasional presence." United States v. Bachner, 706 F.2d 1121, 1126 n. 6 (11th Cir.) (quoting State v. Leveson, 151 So.2d 283, 285 (Fla.1963)), cert. denied, --- U.S. ----, 104 S.Ct. 247, 78 L.Ed.2d 235 (1983). In United States v. Baron-Mantilla, 743 F.2d at 870, this court held that the appellant failed to establish a reasonable expectation of privacy based solely on the possession of a key to an apartment. Analogously, we believe that appellant Paret-Casola's bare assertion that he could exclude strangers from the boat, ⁴ particularly in light of the fact that the captain of the boat--Sarda-Villa--did not testify at the suppression hearing and Paret-Casola was only a crew member, was not sufficient to confer standing.

Similarly, appellants' financial interest in the contraband was insufficient evidence to establish standing. We note that appellant Paret-Casola testified on cross-examination that he did not own the marijuana and he did not have the money to buy it: he was simply a crew member on the boat. (R. Vol. 3 at 57-58). Under these circumstances, appellants' "financial" interest is insubstantial support to confer standing. The fact that they might gain financially from a successful smuggling venture is not sufficient.

We turn now to appellants' main argument that their efforts to ensure that the hidden compartments remain hidden establish a reasonable expectation of privacy. Two recent Supreme Court cases have addressed the question of what constitutes a reasonable expectation. In New Jersey v. T.L.O., --- U.S. ----, ----, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985), the Supreme Court stated that "the Fourth Amendment does not protect subjective expectations of privacy that are unreasonable or otherwise 'illegitimate' ". The expectation of privacy is reasonable or justifiable if it meets two requirements: (1) an actual or subjective expectation by the defendant; and (2) the expectation is one that "society is prepared to recognize as 'reasonable' ". Hudson v. Palmer, --- U.S. ----, ----, 104 S.Ct. 3194, 3199, 82 L.Ed.2d 393 (1984) (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967), (Harlan, J., concurring)). The Court has emphasized this second requirement. Hudson v. Palmer, --- U.S. at ---- n. 7, 104 S.Ct. at 3199 n. 7.

Certainly, appellants have alleged an actual expectation of privacy in the hidden compartments. However, we are not willing to say that society is prepared to recognize a justifiable expectation of privacy solely on the basis of appellants' efforts to secret the contraband. Drug smugglers can not assert standing solely on the basis that they hid the drugs well and hoped no one would find them. "[W]e should not, as judges, merely recite the expectations and risks [of privacy] without examining the desirability of saddling them upon society." Id. --- U.S. at ---- n. 7, 104 S.Ct. at 3199 n. 7 (quoting United States v. White, 401 U.S. 745, 786, 91 S.Ct. 1122, 1143, 28 L.Ed.2d 453 (1971) (Harlan,...