U.S. v. Watson, No. 81-1306

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before CHOY, GOODWIN and FARRIS; FARRIS
• Citation: 678 F.2d 765
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jack Osborn WATSON, Jeffrey Craig Evenson, and Dale Stanley Browning, Defendants-Appellees.
• Docket Number: No. 81-1306
• Decision Date: 02 June 1982

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678 F.2d 765 UNITED STATES of America, Plaintiff-Appellant,
v.
Jack Osborn WATSON, Jeffrey Craig Evenson, and Dale Stanley
Browning, Defendants-Appellees. No. 81-1306. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Jan. 7, 1982.
Decided June 2, 1982.

Roger W. Haines, Jr., Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellant.

Sheldon Sherman, San Diego, Cal., argued, for defendants-appellees; Michael Pancer, Gershon D. Greenblatt, Frank J. Ragen, San Diego, Cal., on brief.

Appeal from the District Court for the Southern District of California.

Before CHOY, GOODWIN and FARRIS, Circuit Judges.

FARRIS, Circuit Judge:

We consider whether a Coast Guard document and safety inspection of a 40-foot sailing vessel on the high seas after dark violated the Fourth Amendment. The stop and search was made without a founded suspicion that any maritime laws relating to safety or documentation were being violated. Citing our decision in United States v. Piner, 608 F.2d 358 (9th Cir. 1979), the district court granted defendants' motion to suppress evidence seized as a result of the stop. We reverse.

FACTS ¹

The search and seizure occurred during a two week law enforcement patrol of the Coast Guard Cutter VENTUROUS. Commander Chapman was ordered to proceed south from Terminal Island, California to an area approximately 100 miles west of the mouth of the Gulf of California via specified way points and return. During the

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patrol, as part of a general administrative plan, Commander Chapman was to board and inspect all United States vessels less than 200 feet in length found in specific windows or corridors located at established points in the Pacific. The vessel at issue in this case, the GLOBE TROTTER, was the third of six American vessels boarded during this law enforcement patrol.

The GLOBE TROTTER was first sighted, by a helicopter dispatched from the VENTUROUS, at 3:30 p. m., December 7, 1980, approximately 120 miles south-southwest of Cabo San Lucas on the southern tip of the Baja Peninsula. The GLOBE TROTTER radioed the helicopter crew and inquired whether they were looking for someone. Lt. Cdr. Searle asked where the GLOBE TROTTER was headed, and someone on the GLOBE TROTTER responded that they were just getting ready to turn into Cabo San Lucas. Lt. Cdr. Searle reported this information to Commander Chapman aboard the VENTUROUS.

Commander Chapman ordered a course change to intercept. Visual contact was made shortly after 6:00 p. m. It was dark, so when still 4,000 yards away, Commander Chapman ordered the VENTUROUS' stripe-lights energized. ² Radio contact was made at 6:39 p. m. The VENTUROUS identified itself, and ordered the GLOBE TROTTER to douse sail, heave to, and stand by to receive a small boarding party. The VENTUROUS and GLOBE TROTTER at this time were approximately 105 miles south-southwest of Cabo San Lucas, almost 1,000 miles from United States waters.

Commander Chapman dispatched three persons in the boarding vessel. He instructed them to make a standard Coast Guard document and safety inspection, filling out Coast Guard form 4100, which covers safety equipment, floatation devices, pollution control, marine toilet inspection, document inspection, and the like. Commander Chapman did not instruct them to search for marijuana, nor did he have reason to suspect that any contraband was on board the GLOBE TROTTER. He did not take certain precautions normally taken when contraband is suspected, such as sending a larger boarding party, ordering the crew of the suspected vessel on deck, and training the VENTUROUS' 50 caliber machine gun on the suspected vessel.

The boarding party arrived at the GLOBE TROTTER at approximately 7:02. They identified themselves, and stated that they were going to make "a standard Coast Guard document and safety check." Defendant Watson identified himself as the owner and operator of the boat. Defendants Evenson and Browning were the only other persons on board. As the boarding party entered the cabin to inspect the vessel's registration papers, one of them immediately noticed a heavy odor of marijuana. He then almost immediately heard a radio transmission from the VENTUROUS ordering the boarding party to muster the GLOBE TROTTER crew on the fantail of the vessel, to pat them down and place them under armed guard, and to search the vessel.

The radio transmission had been prompted by Commander Chapman's observation of 40 to 50 boxes floating in the water at positions consistent with their having come from the GLOBE TROTTER. These boxes in fact had been jettisoned from the GLOBE TROTTER in response to the Coast Guard's announcement that they intended to board and inspect the GLOBE TROTTER.

The search of the vessel led to the discovery of a cardboard box containing marijuana in the forward sail locker. This box was similar to the boxes found floating in the water, eighteen of which were recovered while the rest sank. Each box contained roughly 24 pounds of marijuana.

All three defendants subsequently were charged with conspiracy to possess marijuana on the high seas with the intent to

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distribute, in violation of 21 U.S.C. §§ 955a(a) & (c), and conspiracy to import marijuana, in violation of 21 U.S.C. § 963. The defendants moved to suppress evidence obtained as a result of the stop and search. The motion to suppress was granted, and the government appeals. ANALYSIS

I. PINER

Defendants argue, and the district court assumed, that our decision in United States v. Piner, 608 F.2d 358 (9th Cir. 1979), controls and requires suppression of the evidence seized from the GLOBE TROTTER. We disagree.

Piner involved a random stop of a 43-foot sailboat during a routine Coast Guard patrol of San Francisco Bay. As here, the commander acted without a warrant and without probable cause to believe or a founded suspicion that a violation of the law had occurred. Also as in this case, the stop occurred after dark, at approximately 6:30 p. m. But unlike this case, the decision to board in Piner was made solely by the commander on board the Coast Guard cutter, was not pursuant to an administrative plan, and was for the sole purpose of inspecting for compliance with safety regulations. The sailboat was hailed, the Coast Guard cutter identified itself, and the sailboat was ordered to prepare to be boarded. Once on board, one member of the boarding party immediately noticed through an open door bags of marijuana in plain view in a lighted cabin below.

We concluded that the search and seizure in Piner constituted a violation of the Fourth Amendment.

If the purpose of the random stop is to ascertain and discourage noncompliance with safety regulations, we see no reason why this purpose cannot sufficiently be accomplished during the daylight hours. Thus, reliance on this less intrusive means eliminates the need for stops and boardings after dark where no cause to suspect noncompliance exists.

We conclude that the random stop and boarding of a vessel after dark for safety and registration inspection without cause to suspect noncompliance is not justified by the governmental need to enforce compliance with safety regulations and constitutes a violation of the Fourth Amendment. A stop and boarding after dark must be for cause, requiring at least a reasonable and articulable suspicion of noncompliance, or must be conducted under administrative standards so drafted that the decision to search is not left to the sole discretion of the Coast Guard officer.

Id. at 361.

In deciding Piner, we relied heavily on the Supreme Court's then very recent decision in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Prouse involved a random stop of an automobile for a routine check of driver's license and registration. The Court held that such a random stop "at the unbridled discretion of police officers," without even a reasonable suspicion that any laws were being violated, was an unreasonable seizure under the Fourth Amendment.

At the outset, the Court in Prouse stated that the Fourth Amendment imposes a standard of reasonableness upon the exercise of police discretion. Reasonableness implies a balancing of the competing individual and governmental interests.

Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.

Id. at 654, 99 S.Ct. at 1396 (quoted in Piner, 608 F.2d at 360).

The intrusion must be measured in terms of both " '(the) objective intrusion-the stop itself, the questioning, and the visual inspection-.... (and) the subjective intrusion-the generating of concern or even fright on the part of lawful travelers-....' " Prouse, 440 U.S. at 656, 99 S.Ct. at 1397 (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 558, 96 S.Ct. 3074, 3083, 49 L.Ed.2d 1116 (1976)).

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The governmental interests, on the other hand, must be evaluated in light of "alternate mechanisms available, both those in use and those that might be adopted," to accomplish the legitimate government objectives. Prouse, 440 U.S. at 659, 99 S.Ct. at 1399.

Comparing the facts here with those of Piner, particularly in light of the analysis set forth in Prouse, we find that Piner does not help us determine whether the stop of the GLOBE TROTTER was reasonable under the Fourth Amendment. The overall intrusion was less here than in Piner, and the governmental interests were greater.

On the intrusion side of the balance, the objective intrusion here was essentially the same as that in Piner, but the subjective intrusion was less. The Coast Guard took several specific steps to minimize concern or fright on the part of the GLOBE TROTTER crew. The stripe-lights were energized early, so that defendants would have less reason to be fearful. Radio contact was made almost a half hour before boarding. ³...