U.S. v. Smith, 01-30100

• Citation: 273 F.3d 629
• Decision Date: 14 November 2001
• Docket Number: No. 01-30100,01-30100
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellant v. JESSE JAMES SMITH; KEISHA L. SMITH, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 629

273 F.3d 629 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellant v. JESSE JAMES SMITH; KEISHA L. SMITH, Defendants-Appellees

No. 01-30100

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

November 14, 2001

[Copyrighted Material Omitted]

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

Before KING, Chief Judge, and DUHE and BENAVIDES, Circuit Judges.

KING, Chief Judge:

Plaintiff-Appellant, the United States of America, appeals the district court's suppression of evidence supporting drug charges brought against Defendants-Appellees Jesse James Smith and Keisha L. Smith. For the following reasons, we REVERSE the district court's ruling granting Defendants' motion to suppress and REMAND for further proceedings.¹

I. Factual and Procedural History

Defendants-Appellees Jesse James Smith and Keisha L. Smith ("the Smiths") took a one-week cruise aboard the M/S Celebration from the Port of New Orleans to several Caribbean destinations, including Jamaica. This cruise, conducted by Carnival Cruise Lines, began on September 17, 2000 and continued until September 24, 2000. In order to expedite the off-loading of hundreds of passengers when cruise ships return to port, Carnival Cruise Lines regularly makes passenger manifests available to the United States Customs Service ("U.S. Customs") once a ship is underway. U.S. Customs searches the manifests for any indication that narcotics smugglers are aboard.

In this case, U.S. Customs Inspector Mike Powell ("Inspector Powell") reviewed the passenger manifest for the M/S Celebration and noticed that the Smiths had profiles typical of narcotics smugglers. Jesse Smith had a prior conviction and was on parole at the time.² Keisha Smith had traveled by plane to Jamaica just four months before the cruise. The Smiths paid cash for their cruise tickets shortly before departing. Additionally, the ship's Caribbean destinations, particularly Jamaica, are known source and transit countries for narcotics.³ After discovering these facts, Inspector Powell pre-selected the Smiths for further investigation.

In the early hours of September 24, 2000, the final day of the cruise, the M/S Celebration returned to New Orleans. Its passengers had been instructed to leave their luggage outside their rooms the night before and to vacate their rooms by 8:00 a.m. Inspector Powell and other inspectors boarded the ship at 6:00 a.m. The inspectors requested the records for the Smiths' cabin from the ship's purser's office. The inspectors learned that although Jesse Smith's "sign and sail" account⁴ showed frequent use until the ship left Jamaica, the account remained inactive after that time, indicating to inspectors that the Smiths remained in their room.⁵ Moreover, the Smiths placed a call or calls costing $142.50 to a single number in Jamaica on the day the ship arrived in Montego Bay.

After obtaining this additional information from cruise records, the inspectors located the Smiths' cabin to conduct a search. They knocked on the door and asked the Smiths to dress and exit the cabin in order to allow a trained canine to search the room for drugs.⁶ The dog first indicated the presence of drugs on the bed and then in a locker, where inspectors found four woven baskets. Coils containing 6.8 kilograms of cocaine were woven into the baskets. The search took approximately two or three minutes.

On October 19, 2000, the Smiths were charged with conspiracy to import at least five kilograms of cocaine on board a vessel in violation of 21 U.S.C. §§a952(a), 960(a)(1), and 963 and with possession with the intent to distribute at least five kilograms of cocaine in violation of 21 U.S.C. §a841(a)(1) and 18 U.S.C. §a2. Jesse Smith pled not guilty to the charges. On November 13, 2000, Jesse Smith made a motion, joined by Keisha Smith, to suppress all the evidence seized from the Smiths' cruise cabin. The Government argued only that reasonable suspicion existed to support the search. After a hearing on the motion, the district court found that the inspectors did not have reasonable suspicion to support the search and granted the motion to suppress. United States v. Smith, No. CRIM.A.00-339, 2000 WL 1838708, at *3 (E.D. La. Dec. 13, 2000). The Government timely filed notice of interlocutory appeal of the district court's ruling.⁷

II. Standard of Review

In an appeal of a ruling on a motion to suppress, this court reviews a district court's factual findings for clear error and its legal conclusions de novo. United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). Whether there was reasonable suspicion for a search, a legal conclusion, is reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). At all times during this analysis, we view the evidence in a light most favorable to the prevailing party, i.e., the Defendants-Appellees. Jacquinot, 258 F.3d at 427. This court reviews any arguments not raised before a district court at a suppression hearing for plain error only. United States v. Kelly, 961 F.2d 524, 528 (5th Cir. 1992).

III. The District Court's Analysis

Generally, routine searches at U.S. borders, or the functional equivalent of a border,⁸ are reasonable under the Fourth Amendment and do not require a search warrant, probable cause, or even an articulable suspicion. Cardenas, 9 F.3d at 1148; United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). This court has held, however, that some extremely intrusive border searches are not "routine" and must be predicated upon reasonable suspicion of criminal activity. See, e.g., United States v. Sandler, 644 F.2d 1163, 1166 (5th Cir. 1981) (noting that border strip searches are not "routine" and require reasonable suspicion"). Citing a case from the Ninth Circuit⁹ and a case from the Eastern District of Louisiana,¹⁰ the district court found that "a search of a passenger's cabin aboard a ship is not routine given the intrusive nature of the search." Smith, 2000 WL 1838708, at *1. "Accordingly, even in the context of a border search, the search of private living quarters on a ship must at least be supported by reasonable suspicion of criminal activity." Id. The district court found that the U.S. Customs inspectors lacked reasonable suspicion to support the search of the Smiths' cabin. Id. at *3.

On appeal, the Government has changed its tune and now argues that because this is a routine border search, reasonable suspicion is unnecessary. The Government failed to present this argument to the district court. Under these circumstances, the district court's application of the reasonable suspicion standard is subject to plain error review. Kelly, 961 F.2d at 528 (adopting the plain error standard when considering "an argument that the Government failed to raise at a suppression hearing"). This deferential standard of review dictates that before this court can correct an error not raised at trial, there must be (1) an "error," (2) that is "plain," (3) that "affect[s] substantial rights," and (4) that "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 732 (1993) (internal citations and quotations omitted). While it may well be the case that applying a reasonable suspicion standard to the search of the Smiths' cabin at the functional equivalent of a border is plain error, we need not decide the issue. Our determination that reasonable suspicion existed in this case assures that the district court's error did not affect the Government's substantial rights or the fairness, integrity, or public reputation of judicial proceedings. Thus, the search of the Smiths' cabin was valid, and the district court erred in suppressing the evidence seized pursuant to that search.

IV. Reasonable Suspicion

Reasonable suspicion entails "some minimal level of objective justification" that consists of "more than inchoate or unparticularized suspicion or 'hunch,'" but less than the level of suspicion required for probable cause. United States v. Sokolow, 490 U.S. 1, 7 (1989)(internal citations and quotations omitted). Reasonable suspicion must be based upon "specific facts which, taken together with rational inferences therefrom, reasonably warrant an intrusion." Cardenas, 9 F.3d at 1153. We consider the totality of the circumstances in determining whether reasonable suspicion existed at the time of the search. Id. at 1148.

In this case, U.S. Customs inspectors uncovered numerous facts raising the suspicion that the Smiths were involved in narcotics smuggling. First, the Smiths took a cruise bound for Jamaica. At the suppression hearing, Inspector Powell testified that Jamaica is a transit point for Colombian cocaine and heroin bound for the United States. Inspector Powell also indicated that Jamaica is a source country for "quite a bit" of marijuana that comes into the United States. Second, Keisha Smith traveled by air to Jamaica just four months before she took the cruise that stopped in Jamaica. Inspector Powell noted that frequent trips to the same source or transit country within a short period of time are unusual. Third, although an "overwhelming majority" of cruise passengers buy their tickets with some type of credit instrument, the Smiths purchased their cruise tickets with cash. Inspector Powell testified that such behavior is typical of narcotics smugglers attempting to "hide a financial trail."

Fourth, the Smiths bought their tickets just over two weeks before the date of departure. Most cruise passengers purchase tickets well in advance to allow for sufficient planning. According to Inspector Powell, the Smiths' "late or last-minute booking" is consistent with narcotics smuggling because the narcotics business "is a very fluid business - business plans aren't set firm." Fifth, Jesse Smith had an "extensive criminal history" that included "arrests and convictions" and was on parole at the time of the cruise. Because...