U.S. v. Serrano

• Decision Date: 07 December 1979
• Docket Number: No. 78-5600,78-5600
• Citation: 607 F.2d 1145
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Venerando German SERRANO, Pedro Ricardo Gutierrez, Jesus Hernandez, Juan Raymond Herrera and Raul Hernandez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1145

607 F.2d 1145

UNITED STATES of America, Plaintiff-Appellee, v. Venerando German SERRANO, Pedro Ricardo Gutierrez, Jesus Hernandez, Juan Raymond Herrera and Raul Hernandez, Defendants-Appellants.

No. 78-5600.

United States Court of Appeals, Fifth Circuit.

Dec. 7, 1979.

Douglas J. Titus, Jr., Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.

Joseph Ficarrotta, Tampa, Fla., for J. Hernandez.

Anthony F. Gonzalez, Tampa, Fla., for Herrera and Hernandez.

Richard A. Lazzara, Tampa, Fla., for Herrera.

Bennie Lazzara, Jr., Tampa, Fla., for Gutierrez and R. Hernandez.

William R. Tunkey, Weiner, Robbins & Tunkey, P. A., Jeffrey S. Weiner, Miami, Fla., for Serrano.

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

Before WISDOM, AINSWORTH and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Five defendants apprehended in Tampa Bay, Florida, on a boat carrying 50,000 pounds of marijuana appeal convictions for conspiracy to possess with intent to distribute and possession with intent to distribute marijuana. 21 U.S.C.A. §§ 841(a)(1), 846. They challenge three aspects of their trial: denial of their motion to suppress evidence obtained on an alleged illegal search of the boat; denial of their motion for disqualification of the trial judge because of certain statements he had made previously about narcotics cases; and references by the Government in the course of its case-in-chief and rebuttal closing argument to defendants' silence at the time of arrest. We affirm.

During a routine patrol of Tampa Bay around midnight on June 8, 1978, Customs officers spotted a shrimping vessel approximately sixty-five feet in length traveling up the shipping channel towards Tampa without required red and green navigational lights on the bow or white light on the stern. The Customs boat pulled off to the side of the channel and then followed the vessel at a distance of a half-mile to a mile. Officers utilized night vision devices to assist surveillance. The shrimping vessel left the channel and proceeded into shallow waters as it neared Apollo Beach, a residential area with a public launching facility and marina. Its range and deck lights were extinguished, and it went dead in the water. Lights were flashed between the shrimper and a smaller vessel and the two vessels approached or closed with each other. Approximately forty-five minutes later, the shrimper returned to the shipping channel without lights. In the channel all required lights, including navigational lights, were turned on. As the vessel headed down the bay towards the open waters of the Gulf of Mexico, several small boats were sighted in her immediate vicinity. Customs officers identified the vessel as the BONNIE LASS, identified themselves and boarded the vessel. A Customs officer was handed the ship's documents and questioned one of five men aboard as to whether he was the captain or the owner or master named in the documents and whether the vessel was carrying any cargo, shrimp or fish. During the conversation the officer smelled marijuana. The search which followed revealed 1,312 bales of marijuana on board.

I. Denial of Motion to Suppress Evidence

Defendants argue an unconstitutional search of the BONNIE LASS. The case was presented to the district court, and argued before this Court on appeal, as if probable cause was required in order for the boarding of the vessel to be legal. The district court found probable cause to be a close question, but held that probable cause existed for the boarding.

Based on recent decisions by this Court, we conclude that only reasonable suspicion of illegal activity was necessary to justify the boarding. The evidence clearly meets this standard, even though the evidence might also support the denial of the motion to suppress based on the probable cause standard.

Customs officers are authorized by 19 U.S.C.A. § 1581(a) to

go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under sections 1701 and 1703-1711 of this title, or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.

Searches and seizures made pursuant to the statute must, of course, meet the general standard of reasonableness imposed by the Fourth Amendment. United States v. Freeman, 579 F.2d 942, 945 (5th Cir. 1978).

This Court has considered several Fourth Amendment attacks on Customs boardings or searches conducted in inland or internal waters, the ports, harbors, bays, river mouths and adjacent parts of the sea inside the coastline. The cases have indicated that these bodies of water adjacent to the sea are not part of "customs waters" but have not decided whether random Customs boarding and document checks would be constitutionally permissible in these waters. See United States v. Whitmire, 595 F.2d 1303, 1315-1316 (5th Cir. 1979), Petition for cert. filed, 48 U.S.L.W. 3262 (Sept. 5, 1979, No. 79-375); United States v. Castro, 596 F.2d 674, 676 (5th Cir. 1979), Petition for cert. filed, 48 U.S.L.W. 3177 (Aug. 13, 1979, No. 79-229).

Customs boardings have been approved in inland waters where Customs officials had reasonable suspicion of a Customs violation. In United States v. Whitmire, supra, the Court assessed the constitutionality of a boarding of a boat initially sighted traveling in the intracoastal waterway but boarded only after it had reached the dock and its occupants had gone ashore. The Court held the boarding constitutional where the officers had reasonable suspicion of a Customs violation, and the boarding followed an unsatisfactory document check on shore. 595 F.2d at 1316. The Court noted that but for the fact that the boat had reached shore and defendants had disembarked, the boarding would have been justified as an "investigatory stop" under United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); United States v. Whitmire, 595 F.2d at 1308.

A search of a vessel moored in a marina four miles from the Gulf of Mexico was declared unconstitutional in United States v. Williams, 544 F.2d 807 (5th Cir. 1977). The Court concluded that at the time of boarding the "probably unseaworthy private craft," Customs officers had

no knowledge of articulable facts which, taken together with logical inferences from those facts, would cause them reasonably to believe that this vessel fell into customs' area of concern, or that a violation of the law was being committed on board.

544 F.2d at 811.

The Supreme Court, considering entry of illegal aliens by automobile, concluded in Brignoni-Ponce that Border Patrol Officers conducting roving patrols in the border area could stop vehicles where they are aware of "specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that the stopped vehicle contains illegal aliens. 422 U.S. at 884, 95 S.Ct. at 2582.

Most recently, this Court considered an inland waters Customs boarding under conditions very similar to those before us. The boarding in United States v. Castro, supra, occurred after Customs observed the boat in the intracoastal waterway heading towards open waters 20 miles away. The boarding, which occurred before the boat reached the coastline, was held constitutional based on "sufficient articulable facts to support an inference" that the vessel was involved in smuggling contraband.

We therefore conclude that Customs officers may make an investigatory stop of a vessel on inland waters adjacent to the open Gulf of Mexico under19 U.S.C.A. § 1581(a) on facts which justify a reasonable suspicion of illegal activity. The evidence need not support suspicion of a border crossing, but only of the presence of contraband. See United States v. Rivera, 595 F.2d 1095, 1098 n.4 (5th Cir. 1979).

We are concerned here only with the officers' justification for stopping and boarding the vessel. Defendants do not contest the existence of probable cause to search the vessel once officers had boarded and smelled marijuana. See United States v. Freeman, 579 F.2d 942, 948 (5th Cir. 1978).

Brignoni-Ponce includes as factors to be considered in assessing reasonable suspicion proximity to the border, usual traffic patterns in the area, recent illegal traffic, the driver's behavior and aspects of the vehicle's appearance. 422 U.S. at 884-885, 95 S.Ct. 2574.

The BONNIE LASS was in inland waters adjacent to the open seas throughout her Customs surveillance and at the time of boarding. The Customs officers who boarded the BONNIE LASS had observed the boat traveling at midnight up the main shipping channel without navigation lights. They saw the boat turn out of the channel, extinguish all lights and proceed into a shallow area near a residential area not normally frequented by shrimping vessels. The BONNIE LASS was observed to rendezvous with another darkened vessel after an exchange of lights. One of the officers testified that in five years of patrolling Tampa Bay he had seen only one other vessel of this kind leave the channel and behave in a similar manner. During the course of this night's patrol the officers saw no vessels at all other than the ones involved in these incidents. When the vessel was stopped, though apparently still five or six miles from the "border" three miles offshore, it was nearing the mouth of the bay and was apparently going out into the Gulf of Mexico. These observations and the rational inferences they engender reasonably warranted the Customs officers' suspicion that the BONNIE LASS was engaged in illegal smuggling activities. The stop and...