U.S. v. Thompson, 00-30382.

• Decision Date: 04 March 2002
• Docket Number: No. 00-30382.,00-30382.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James Joshua THOMPSON, aka James Deas, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

282 F.3d 673

UNITED STATES of America, Plaintiff-Appellant, v. James Joshua THOMPSON, aka James Deas, Defendant-Appellee.

No. 00-30382.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 9, 2001.

Filed March 4, 2002.

Sangita K. Rao, Department of Justice, Criminal Appellate Section, Washington, DC, for the plaintiff-appellant.

Robert M. Leen, Seattle, WA, for the defendant-appellee.

Appeal from the United States District Court for the Western District of Washington, Thomas S. Zilly, District Judge, Presiding.

Before: B. FLETCHER, McKEOWN, and TALLMAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge.

The United States appeals the district court's order suppressing drug evidence seized by the Coast Guard from a vessel off the coast of Washington State. James Joshua Thompson, the skipper of the boat, was charged with one count of conspiring to distribute 50 kilograms or more of marijuana under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846, and one count of possession of marijuana with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 18 U.S.C. § 2. We have jurisdiction under 28 U.S.C. § 1291. We reverse the district court's suppression order and remand for further proceedings.

I

On August 30, 2000, shortly after 8:00 p.m.,¹ a Coast Guard 27 foot patrol boat encountered and stopped the M/V IKEA, a 19-to-22-foot pleasure craft, near the San Juan Islands.² The IKEA was traveling southbound when the Coast Guard intercepted it. Thompson was operating the IKEA, and Kanwanjit Bassi was the only other person on board. Coast Guard Boatswain's Mate Terry Reed and Petty Officer Bruce Karakashian boarded the vessel to conduct a safety inspection.

During the inspection, Reed asked Thompson for the boat's registration. Thompson was unable to provide it. He pointed to the inside window of the boat and stated that the registration had been taped there and may have blown off. Although it appeared that something had been taped to the window, Reed later testified that he found Thompson's explanation suspicious because in his six years' experience with the Coast Guard, he had never encountered a vessel with its registration taped to the window where it would be exposed to the weather and could get wet or lost.

Reed observed a sticker on the front of the boat which indicated it had previously been registered in Idaho, but that the registration had expired. When Reed asked Thompson to identify the vessel's registered owner, Thompson responded, "a friend," but could not provide the friend's name. He also claimed that the IKEA had traveled from the south and was on the return leg of the voyage. Despite this explanation, the officers' suspicions were aroused because they had found the boat heading south on a known smuggling route between Canada and the United States.

As part of the safety inspection, the boarding officers checked that the IKEA's life jackets, fire extinguisher, horn, and life ring were aboard and operational, the boat was not leaking fuel or taking on water, and the bilges were clear of oil or gasoline vapors.

When asked to produce a life jacket for each person on board, Thompson entered the vessel's cabin to retrieve them and exposed the vessel's interior to the officers' view. Reed observed in plain view at least one large hockey-style duffel bag lying in the cabin. At some point during the encounter, a second duffel bag was observed by the officers. From personal experience, recent drug seizures, the accounts of their colleagues, field intelligence reports, and a recent training program on local narcotics trafficking modus operandi, the officers knew that similar duffel bags commonly were being used to smuggle marijuana into the United States from Canada.

At Reed's request, Thompson and Bassi each provided their name and date of birth, but Thompson refused to provide his Social Security number. Reed also asked them to produce some form of identification. At approximately 8:20 p.m., halfway through the safety inspection, Reed initiated a warrants and criminal history records check on the two men.³ Reed testified that it was his practice to request a law enforcement computer records search as part of a vessel safety inspection. He continued the inspection while awaiting the results of the computer check.⁴

When asked about the purpose of his trip, Thompson responded that he and Bassi had replaced the vessel's battery and repaired the throttle, and were taking the vessel out for a test cruise. The boarding party observed that both Thompson and Bassi were cleanly dressed with no visible grease or dirt on them, and that there were a number of tools strewn across the deck of the IKEA, but most looked new and unused. In particular, a closed Craftsman 100 piece tool box still bore the manufacturer's decal that identifies the contents of the tool box.

The officers completed their safety inspection in approximately 15 minutes. Except for the missing vessel registration, there were no other violations observed. The officers continued to detain the vessel, however, to await the results of the warrants check. The computer check involved passing the passengers' identification information to the Coast Guard boat tied alongside the IKEA, which then radioed the information to the station in Bellingham, which in turn called the Border Patrol office in Blaine, Washington, to actually run the records search. The response was relayed back and indicated that Thompson had a prior drug smuggling conviction, used an alias of James Joshua Deas, and was affiliated with the Hell's Angels motorcycle gang in Canada.

Believing they then had sufficient evidence establishing probable cause to conduct a search of the duffel bags, the officers detained the vessel another 30 minutes while awaiting administrative authorization from their shore-based superiors (including Coast Guard legal officers). Permission was obtained and the subsequent search revealed over 100 pounds of marijuana. Thompson and Bassi were arrested and taken to port.⁵

The district court conducted a lengthy evidentiary hearing on Thompson's motion to suppress the marijuana, and then made oral findings of fact on the record. In a subsequent order, the district court granted the motion to suppress on the ground that the continued detention of the M/V IKEA after the completion of the safety inspection and before the results of the computer check were known, constituted a seizure of the vessel and crew without probable cause.

II

Whether the continued detention of the IKEA after completion of the safety inspection was permissible as an investigatory detention based on reasonable suspicion or whether it constituted a seizure and arrest requiring probable cause is a question we review de novo. United States v. Michael R., 90 F.3d 340, 345 (9th Cir.1996). We review the district court's factual findings for clear error. United States v. Gonzalez-Rincon, 36 F.3d 859, 863 (9th Cir.1994).

The Coast Guard has broad authority to board and search vessels in and near United States waters. Under 14 U.S.C. § 89(a) Coast Guard officers may "make inquiries, examinations, inspections, searches, seizures and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States." See also 19 U.S.C. § 1581(a) (2001) (stating that Customs officers "may at any time go on board of any vessel ... within the customs waters ... and examine the manifest and other documents and papers and examine, inspect, and search the vessel...") Thus, the initial detention and boarding of the IKEA for purposes of a suspicionless safety inspection was lawful under the Coast Guard's broad statutory mandate and is not at issue in this case. Thompson does not challenge the initial boarding.

The district court found that once the results of the warrants check became known to the Coast Guard officers, and they knew that Thompson had a prior drug smuggling conviction and used an alias, there was probable cause to detain, search the vessel, and arrest him. Thompson does not challenge this finding on appeal. Therefore, it remains only for us to decide the legality of the 15-20 minute delay between the end of the safety inspection and the officers' receipt of the results of the warrants check. As to this period of time, the district court ruled that the Coast Guard's actions "constituted a seizure without probable cause." We disagree.

"[R]estrictions on a person's freedom of movement may be imposed to maintain the status quo while making an initial inquiry provided the force displayed is not excessive under the circumstances." United States v. Maybusher, 735 F.2d 366, 372 (9th Cir.1984) (upholding search and seizure of vessel). The restrictions imposed on Thompson during the 15-20-minute delay include the fact that the Coast Guard vessel was tied to the IKEA, Thompson was not told that he was free to leave after the completion of the safety inspection, and the officers remained on board the IKEA until they received the results of the records check.

In determining whether an arrest has occurred, "a court must evaluate all the surrounding circumstances, including the extent to which liberty of movement is curtailed and type of force or authority employed."⁶ United States v. Torres-Sanchez, 83 F.3d 1123, 1127 (9th Cir.1996) (internal quotations omitted). Torres-Sanchez involved an individual who, during a 29-minute investigative...