U.S. v. Streifel

• Decision Date: 23 November 1981
• Docket Number: D,No. 1456,1456
• Citation: 665 F.2d 414
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Arthur STREIFEL, Theodore Scott Jube, Steven Jube and Darlene Brennan, Defendants-Appellants. ocket 81-1091.
• Court: U.S. Court of Appeals — Second Circuit

Page 414

665 F.2d 414

UNITED STATES of America, Plaintiff-Appellee, v. James Arthur STREIFEL, Theodore Scott Jube, Steven Jube and Darlene Brennan, Defendants-Appellants.

No. 1456, Docket 81-1091.

United States Court of Appeals, Second Circuit.

Argued June 10, 1981.

Decided Nov. 23, 1981.

Andrew M. Lawler, New York City, for defendant-appellant Theodore scott jube.

Oteri & Weinberg, Boston, Mass. (Martin G. Weinberg, Boston, Mass., and Ivan Fisher, New York City, on the brief), for defendant-appellant Steven Jube.

Gerald B. Lefcourt, New York City, for defendant-appellant Brennan.

Lesley Oelsner, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty. for the Southern District of New York, and Mark F. Pomerantz, Asst. U. S. Atty., New York City, on the brief), for plaintiff-appellee.

Before OAKES and KEARSE, Circuit Judges, and RE, Chief Judge. ^*

KEARSE, Circuit Judge:

This is an appeal by defendants Theodore Scott Jube, Steven Jube, and Darlene Brennan, ¹ from judgments in the United States

District Court for the Southern District of New York, Milton Pollack, Judge, convicting them of possession of marijuana with intent to distribute it in violation of 21 U.S.C. §§ 812, 955a (1976), and of conspiracy to possess, import into the United States, and distribute marijuana in violation of 21 U.S.C. §§ 846, 955c, and 963 (1976). The judgments of conviction were entered following court-approved agreements between defendants and the government pursuant to which the defendants pleaded guilty to the possession and conspiracy charges, charges of attempting to import marijuana into the United States were dismissed, and the defendants preserved their rights to appeal the denial of certain suppression motions. ² On appeal, defendants contend that the warrantless entry onto a ship on the high seas by agents of the United States Coast Guard violated their rights under the Fourth Amendment to the Constitution, and that their motion to suppress certain seized items, including thirty tons of marijuana, should therefore have been granted. For the reasons below, we conclude that the entry was lawful and we therefore affirm the convictions.

BACKGROUND

The material facts, which have been stipulated by the parties, concern the sighting of a ship by the Coast Guard in the northern Atlantic Ocean approximately 50 miles east of Cape Cod and the boarding of that vessel by Coast Guard agents on the following day. Shortly before 10:00 a. m. on September 24, 1980, a Coast Guard airplane flying a routine patrol off the New England coast sighted a freighter drifting with its engine off and its bow pointed south-southeast. The plane circled over the ship for about fifteen minutes, and determined that "Panama" and the name "ROONDIEP" appeared on the stern of the freighter. While the aircraft was circling, the ship started its engines and began heading due south; the starting of the engines was visible from the Coast Guard plane.

The Coast Guard plane soon resumed in its original northeastern direction, but a number of factors caused the pilot and co-pilot to be suspicious of the ROONDIEP. In their training programs the officers had learned that a typical type of boat on which contraband drugs were carried was a coastal freighter 150-200 feet in length, flying a foreign flag. The pilot and co-pilot had two years' and one and one-half years' experience, respectively, in flying patrols out of Cape Cod. In their previous missions the officers had seen many freighters; generally the freighters had been under way and many had been laden with cargo visible from the air. In their experience a freighter did not drift "dead in the water" unless something was wrong. Because the ROONDIEP was a 210-foot freighter of apparent foreign registry, drifting dead in the water, with no visible cargo, and had started its engines as the aircraft was circling it, the officers contacted the Coast Guard communications center in Boston and asked that the name "ROONDIEP" and the description of the freighter be checked with the El Paso Intelligence Center ("EPIC"). EPIC is a computerized information center of the United States Drug Enforcement Administration which regularly supplies law enforcement agencies with information about vessels suspected of engaging in smuggling. Within the hour, ³ the station in Boston reported that EPIC's reply was "positive" and The actions of Lieutenant Spencer, as well as those of the cutter TAMAROA, were supervised by Comlantarea's Operational Intelligence Officer, Commander D. R. Herlihy, who had been extensively involved in the investigation of drug smuggling. Herlihy knew that for several years drug smugglers had used a technique known as the "mother ship" technique, in which a ship loaded with large quantities of marijuana hovers off the United States coast while smaller boats come to the ship, get the marijuana, and take it into shore. Herlihy knew that the "mother ships" often flew foreign flags and that a number of such ships seized by the Coast Guard over the years had flown the Panamanian flag.

included information that the ROONDIEP had aliases, including the "ROERDOMP" and the "BITTERN," that most recently the ROONDIEP had been sighted anchored off Aruba and had left Aruba without going into port, and that there was reason to suspect that the vessel might be used to smuggle marijuana into the United States. (Later that day, EPIC informed the Coast Guard that the ROONDIEP was not in fact the same ship as the ROERDOMP, alias the BITTERN, which was suspected of smuggling. None of the other information provided by EPIC was retracted.) After receiving the first EPIC message, the aircraft officers contacted Lieutenant Steven Spencer in the Coast Guard's Atlantic Area Command ("Comlantarea") and reported their sighting of the ROONDIEP and EPIC's positive identification. The lieutenant, who had eight years' Coast Guard experience, instructed the plane to relocate the ROONDIEP and maintain surveillance of it until a Coast Guard ship could arrive; he then directed the Coast Guard cutter TAMAROA to intercept the ROONDIEP. Spencer also made official inquiries of the five major United States ports within a day's steaming distance from the ROONDIEP's location, and contacted the Canadian Maritime Command in Halifax; he was informed that none of those ports had seen or heard from the ROONDIEP. ⁴

At approximately 2:20 p. m., the TAMAROA, captained by Commander Anthony Pettit and having been advised of the ROONDIEP's location by the aircraft pilots, approached the ROONDIEP, and established ship-to-ship radio communication. Conversation between the two ships ensued intermittently for 30 to 40 minutes. During the course of these conversations, the ROONDIEP informed the TAMAROA that its last port of call was Martinique; that its next port of call was as yet unknown because its original orders to go to "Maine or Canada" to pick up lumber had been cancelled; and that it was awaiting new orders, perhaps to go to Europe. The officers asked for permission to board the ROONDIEP; the master of the ROONDIEP refused, saying that he was leaving United States waters and that he saw no need for the Coast Guard to board. Later the ROONDIEP master said he felt the weather was not conducive to bringing the TAMAROA and the ROONDIEP together. When the TAMAROA advised the ROONDIEP that the latter was headed toward a shallow area not part of the standard ship lanes for international traffic, the ROONDIEP master replied that he was not concerned because the ship was in light condition and did not draw much water. On the basis of the circumstances and in particular the ROONDIEP's responses over the radio, Pettit, a fifteen-year veteran of Coast Guard service, suspected that the ROONDIEP might be involved in smuggling. Pettit relayed his information to Herlihy.

All of the circumstances, including the ROONDIEP's appearance, location, actions, and radioed statements to the TAMAROA, led Herlihy to conclude that the ROONDIEP appeared to be a "mother ship" carrying drugs that it wanted to smuggle into the United States. At Herlihy's suggestion, appropriate government officials contacted Panamanian officials to obtain confirmation that the ROONDIEP was of Panamanian registry, to report the suspicion that it was carrying drugs, and to request permission to board it. Panamanian By the morning of September 25 the ROONDIEP was approximately 200 miles from the coast of the United States. At 6:10 a. m. the TAMAROA called the ROONDIEP on bridge-to-bridge radio. During the twenty-minute conversation that ensued the TAMAROA twice ordered the ROONDIEP to "heave to"; the ROONDIEP responded that it was in international waters, that it did not wish to be boarded, and that it did not recognize the Coast Guard's right to board it. Finally, the ROONDIEP asked whether the TAMAROA intended to use force and the latter responded in the affirmative, stating that it was authorized to do so by the Panamanian government. At 6:30 a. m., when the ROONDIEP still refused to stop, the TAMAROA fired six bullets from a .50 caliber machine gun into the water in front of the ROONDIEP's bow. At 6:34 a. m., under protest, the ROONDIEP stopped and put a ladder over its side. At 6:38 a. m., six Coast Guard agents, led by Ensign John Andrezjewski, boarded the ROONDIEP. After asking to see the ship's registry papers, Andrezjewski asked the ROONDIEP's captain, Colin Gregory, what cargo the ship was carrying and was told that it carried none. At 6:58 a. m. Andrezjewski went to the cargo hold, where he smelled marijuana and saw hundreds of bales of marijuana. When he returned to Gregory and asked what was in the hold, Gregory responded that Andrezjewski knew what was in the hold. Andrezjewski thereupon arrested Gregory and the six other persons found aboard the ROONDIEP, who included the defendants here. Following the arrests, the Jube brothers told the Coast Guard officers that they...