U.S. v. Thompson

• Decision Date: 01 August 1983
• Docket Number: No. 81-5952,81-5952
• Citation: 710 F.2d 1500
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. John THOMPSON, Steven Barfield, and Kim Williams, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1500

710 F.2d 1500

UNITED STATES of America, Plaintiff-Appellant, v. John THOMPSON, Steven Barfield, and Kim Williams,

Defendants-Appellees.

No. 81-5952.

United States Court of Appeals, Eleventh Circuit.

Aug. 1, 1983.

Stanley Marcus, U.S. Atty., Robert J. Bondi, Asst. U.S. Atty., Miami, Fla., Frank J. Marine, Atty., Appellate Section, Crim. Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Robyn J. Hermann, Asst. Federal Public Defender, Thomas G. Sherman, Miami, Fla., Peter Kahn, David Povich, Robert N. Chatigny, Washington, D.C., for defendants-appellees.

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

Before VANCE and ANDERSON, Circuit Judges, and SCOTT, ^* District Judge.

VANCE, Circuit Judge:

The government appeals an order of the district court for the Southern District of Florida suppressing evidence, approximately 2,000 pounds of marijuana, which the Coast Guard seized from defendants' United States registered vessel in international waters. We have jurisdiction under 18 U.S.C. Sec. 3731.

I. FACTS

On the afternoon of October 24, 1980, the defendants were aboard a 27 foot single cabin sailboat, ¹ a noncommercial American flag vessel bearing a Florida registration number on her side, in international waters in the Straits of Yucatan. At that time the United States Coast Guard cutter STEADFAST was engaged in a three week law enforcement patrol of those waters aimed at interdicting drug smuggling into the United States. The STEADFAST was under an administrative directive to board every American vessel under 400 feet in length. At approximately 2:30 p.m. the STEADFAST sighted the defendants' vessel. While approaching to verify its name and flag, Coast Guard officials noticed that the vessel was riding "extremely low" in the water. Shortly thereafter, an armed party from the STEADFAST, led by Ensign Michael S. Black, boarded the defendants' sailboat under instructions to determine the ownership of the boat, to check its watertight integrity, and to perform a routine document and safety inspection.

Upon questioning, defendant John Thompson identified himself as the master of the vessel. Ensign Black told Thompson his vessel was being boarded pursuant to 14 U.S.C. Sec. 89(a) ² to ensure compliance with applicable federal laws. Black then asked Thompson to produce the vessel's registration papers ³ and to unlock the cabin door, which was secured by a combination lock. Thompson refused to produce any documentation for the boat or to unlock the cabin door, asserting that the Coast Guard had no jurisdiction over his vessel while it was on the high seas. Black then explained that he had statutory authority to examine the registration papers and to search the boat pursuant to routine procedures established for such boardings. Black repeated his request that Thompson produce the registration and unlock the cabin door, but again Thompson flatly refused, arguing that it would be an invasion of his privacy. At some point defendant Kim Williams asked Thompson to allow Williams to enter the cabin alone and retrieve the registration papers. Thompson did not respond to Williams' request and Black renewed his demand that Thompson unlock the cabin door and produce the registration.

Following Thompson's refusal to comply, Ensign Black sought and received permission from his superior officer to place all three defendants under arrest for impeding a Coast Guard boarding, in violation of 18 U.S.C. Sec. 111 and/or 46 U.S.C. Sec. 1483. During transfer of the defendants from the sailboat to the Coast Guard cutter, Thompson jumped into the water. Williams and Barfield were then handcuffed and seated in the rear of the boat. All three were subsequently transferred to the STEADFAST.

Ensign Black was then directed to open the cabin door and check the watertight integrity of the vessel. Black cut open the combination lock with a bolt cutter. Upon removing the first of the interlocking boards covering the cabin door Black detected the "strong aroma of marijuana." After entering the cabin, Black noticed, stacked in the center and through the forward berth, several bales of what later proved to be marijuana wrapped in green plastic and partially covered by a blanket. The boarding party then conducted a thorough search of the cabin as well as the engine compartment.

The defendants were subsequently indicted on the charge of possession with intent to distribute marijuana while on board a United States registered vessel, in violation of 21 U.S.C. Sec. 955a. Prior to trial, the defendants joined in a motion to suppress the seized marijuana.

Following an evidentiary hearing, the district court granted the defendants' motion. The district court saw no impropriety in the Coast Guard's stopping and boarding the defendants' vessel, but concluded that the subsequent forced entry and search of the cabin where the marijuana was located were unreasonable within the meaning of the fourth amendment to the United States Constitution.

II. UNTIMELY ISSUES

At the suppression hearing, the government relied exclusively on the position that the entry of the cabin was permissible as part of an authorized document and safety inspection. On appeal, the government also argues: that there existed probable cause or reasonable suspicion of the presence of contraband prior to entry of the cabin; that entry of the cabin was permissible as part of an inventory search or a search incident to an arrest; and that even if the entry of the cabin violated the defendants' fourth amendment rights, the suppression order nonetheless should be reversed under the "good faith" exception to the exclusionary rule established in United States v. Williams, 622 F.2d 830 (5th Cir.1980) (en banc), cert. denied, 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1981).

Of these alternative theories of admissibility, all but one--the "reasonable suspicion" rationale--are raised for the first time on this appeal, and as such are not properly before this court. See Steagald v. United States, 451 U.S. 204, 208-11, 101 S.Ct. 1642, 1646-47, 68 L.Ed.2d 38 (1981), on remand, 664 F.2d 1242, 1243 (5th Cir.1981); United States v. Richards, 646 F.2d 962, 963 (5th Cir.), cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981); United States v. Hicks, 624 F.2d 32, 34 (5th Cir.1981).

The claim of "reasonable suspicion" was first advanced by the government in a petition for reconsideration filed seventeen days after the district court entered its suppression order and more than five months after the evidentiary hearing was held. ⁴ The record of the suppression hearing reveals that government counsel not only failed to argue the existence of reasonable suspicion, but expressly conceded the issue. ⁵ On that basis, the district court declined to consider the "reasonable suspicion" issue when ruling on the suppression motion.

The government has offered no justification for its failure to raise and develop the issue at the suppression hearing. In denying the government's postorder motion, the district court ruled, in effect, that the government waived its right to raise the reasonable suspicion issue. We agree that by failing to raise the issue at the suppression hearing without offering any justification therefor, the government waived its right to assert it in subsequent proceedings. See Steagald v. United States, 451 U.S. at 209, 101 S.Ct. at 1646 ("The Government ... may lose its right to raise factual issues of this sort before this Court when it has made contrary assertions in the courts below, when it has acquiesced to contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation"); Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1030 (5th Cir.1982) (Unit B), quoting Excavators & Erectors, Inc. v. Bullard Engineers, Inc., 489 F.2d 318, 320 (5th Cir.1973) ("[A]n argument first raised in a post-judgment motion 'is simply too late' and need not be addressed on appeal"); United States v. Greely, 425 F.2d 592, 593 (D.C.Cir.1970) ("The government cannot relitigate the issues resolved by a suppression order without advancing some justification for its failure to develop those issues fully at the initial hearing").

III. THE SEARCH WAS PERMISSIBLE AS A DOCUMENT AND SAFETY INSPECTION

Accordingly, we consider only whether the search was justified as a document and safety inspection. Neither probable cause nor reasonable suspicion is necessary for the Coast Guard to stop and board American vessels on the high seas and to inspect them for safety, documentation, and obvious customs and narcotics violations under the authority of 14 U.S.C. Sec. 89(a). United States v. Bent, 707 F.2d 1190, 1193 (11th Cir.1983); United States v. Ceballos, 706 F.2d 1198, 1200 (11th Cir.1983); United States v. Stuart-Caballero, 686 F.2d 890, 892 (11th Cir.1982); United States v. Clark, 664 F.2d 1174, 1175 (11th Cir.1981); United States v. Freeman, 660 F.2d 1030, 1033-34 (5th Cir.1981) (Unit B), cert. denied, --- U.S. ----, 103 S.Ct. 54, 74 L.Ed.2d 59 (1982); United States v. Mazyak, 650 F.2d 788, 790 (5th Cir.1980), cert. denied, 455 U.S. 922, 102 S.Ct. 1281, 71 L.Ed.2d 464 (1982); United States v. Warren, 578 F.2d 1058, 1064-65 (5th Cir.1978) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). The government argues that, under the circumstances of this case, it was necessary to enter or look into the cabin to conduct a proper inspection and when the defendants refused to grant permission to do so, the Coast Guard was justified in removing the lock from the cabin door. Appellees maintain that the locked cabin was a private sleeping quarters in which they had a legitimate expectation of privacy, and that, as the government concedes absence of reasonable suspicion, the search violated their fourth amendment rights.

The district court characterized the single cabin on the...