U.S. v. Whitted, 06-3271.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation541 F.3d 480
Docket NumberNo. 06-3271.,06-3271.
PartiesUNITED STATES of America v. James WHITTED, Appellant.
Decision Date04 September 2008
541 F.3d 480
James WHITTED, Appellant.
No. 06-3271.
United States Court of Appeals, Third Circuit.
Argued May 5, 2008.
Filed: September 4, 2008.

[541 F.3d 482]

David J. Cattie, Esq. (Argued), Ogletree, Deakins, Nash, Smoak & Stewart, St. Thomas, USVI, for Appellant, James Whitted.

Kim L. Chisholm, Esq. (Argued), Office of United States Attorney, St. Thomas, USVI, for Appellant, United States of America.

Before: RENDELL, FUENTES and CHAGARES, Circuit Judges.


RENDELL, Circuit Judge.

James Edward Whitted appeals his conviction by jury for possession with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and importation of a controlled substance into the United States in violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(A). He claims that the District Court's failure to suppress evidence found by customs officers during a border search of his cruise ship cabin was error and merits reversal of his conviction.

In order to resolve this appeal, we must answer a question of first impression: whether the Fourth Amendment requires any level of suspicion to justify a border search of a passenger cabin aboard a cruise liner arriving in the United States from a foreign port. For the reasons that follow, we believe that it does and that reasonable suspicion is the appropriate standard. In the present case, we conclude the reasonable suspicion standard is satisfied and, accordingly, will affirm Whitted's conviction.

I. Facts and Procedural History

On the morning of September 25, 2004, the Adventure of the Seas cruise ship,

541 F.3d 483

which can carry up to 3,838 passengers and 1,185 crew, arrived from the foreign port of St. Maarten and docked in St. Thomas, United States Virgin Islands. Prior to the ship's arrival, United States Customs and Border Protection officers gathered to prepare to board the ship and conduct enforcement actions. Canine Enforcement Officer Ralph Dasant was on duty that morning, and, after retrieving his drug-sniffing dog from its kennel, he used the Treasury Enforcement Communications System ("TECS"), a computerized database, to access the list of vessels arriving from a foreign port. He then used the database to access the manifest of crew and passengers aboard the Adventure of the Seas. Based on TECS information generated through this search, he selected approximately ten of the ship's staterooms (out of a total of 1,557) to be looked at upon boarding the ship.

As is relevant here, TECS showed a "one-day lookout" for James Edward Whitted. App. 45. Dasant explained that a "lookout" was "a message that comes down in reference to either a crew member or a passenger on board a vessel, where we may have to take a look at that individual, being that it could be for drugs, it could be for a warrant or something of that nature." App. 45-46. Based on the one-day lookout, Dasant conducted further inquiries in TECS and discovered that Whitted's ticket had been purchased at the last minute. The system also indicated that Whitted had traveled to other drug source countries in the Caribbean and South America, including Colombia, Venezuela, and St. Maarten, and had a criminal record. Based on this information from the TECS database, Whitted's cabin was chosen for inspection.

A team of customs officers, including Dasant and the drug-sniffing dog, boarded the ship and proceeded directly to the chief of security of the ship. Together, they went to the deck of the ship where Whitted's cabin was located. After the officers knocked on the door to the cabin and ascertained that Whitted was not there, the chief of security unlocked the door and the officers began to prepare the room for canine screening.1 The dog did not alert in the hallway or at the door to the cabin. However, immediately after the cabin was prepped, the dog bolted into the room without being given a command and alerted to a bag. Dasant called him off and indicated the bag to the other officers. Customs officers Gail Fraser and Norman Ramirez then entered the room and searched through the bag, where they found "ladies' shoes, men's sandals, perfume bottles and a shaving cream container." App. 91. After ascertaining from the chief of security that no woman was assigned to the room and noting that the shaving cream container seemed strange, they set aside those items found in the bag for further examination. The chief of security offered them the use of the ship's x-ray machine. While x-raying the items, officers Fraser and Gloria Lambert noticed what appeared to be "pebbles" inside.

In the interim, Whitted returned to the cabin. Officer Ramirez took an oral declaration from Whitted, asking if he stayed in that cabin, whether the bags in the cabin belonged to him, and if any other passenger shared the cabin; Whitted acknowledged that it was his cabin and bag and that he was traveling alone. After Fraser

541 F.3d 484

and Lambert returned from the x-ray machine, the officers entered the cabin with Whitted. Special Agent Louis Penn, Jr. subsequently arrived, and he and the customs officers probed the "pebbles" and discovered a white, powdery substance, which field-tested positive for heroin. Whitted was arrested and later charged with possession with intent to distribute a controlled substance and importation of a controlled substance into the United States.

Before trial, Whitted moved to suppress the drugs seized from his cruise ship cabin. Dasant, Lambert, and Penn testified at the suppression hearing before the District Court. In addition to the facts recounted above, Penn testified that, following Whitted's arrest, he had confirmed that Whitted had two prior convictions in North Carolina for heroin possession and sale. He also stated that he had verified the reason for the TECS lookout with San Juan officials and they had placed the lookout on TECS based on an outbound survey of Whitted in San Juan and his last-minute purchase of the ticket for cruise ship travel.

At the hearing, the parties made substantially the same arguments they do now. Whitted argued that he had a high expectation of privacy in the ship cabin, as his dwelling, such that the customs officers were required to have reasonable suspicion in order to search it. Here, he claimed, the facts available were insufficient to create reasonable suspicion that he was involved in criminal activity. The government contended that the search was a "routine" border search, focusing on the fact that it was performed regularly by customs officers rather than on its intrusiveness or the privacy interest at stake. In the alternative, it urged, the TECS information established reasonable suspicion.

On October 17, 2005, assuming, without deciding, that reasonable suspicion was required for the search of Whitted's cabin, the District Court found the facts as a whole provided reasonable suspicion and, therefore, denied Whitted's motion to suppress. The case then proceeded to trial and conviction on both counts. Whitted now appeals his conviction on the grounds that the District Court improperly denied his motion to suppress.

We have jurisdiction over Whitted's appeal pursuant to 28 U.S.C. § 1291. We review the denial of a motion to suppress for clear error as to the factual findings and exercise plenary review over the application of law to those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir.2002).

II. Discussion

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Whether a search is reasonable will depend upon its nature and all of the circumstances surrounding it, United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985), but, as a general matter, warrantless searches are unreasonable. See Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

Searches conducted at the nation's borders, however, represent a well-established and long-standing exception to the warrant requirement. United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977); see also United States v. Flores-Montano, 541 U.S. 149, 152-53, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004). The exception applies not only at the physical boundaries of the United States, but also at the "the functional

541 F.3d 485

equivalent" of a border, Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), including the first port where a ship docks after arriving from a foreign country, United States v. Smith, 273 F.3d 629, 633 n. 8 (5th Cir.2001). The search here, conducted as the Adventure of the Seas arrived in St. Thomas from St. Maarten, was therefore a border search.

Provided that a border search is routine, it may be conducted, not just without a warrant, but without probable cause, reasonable suspicion, or any suspicion of wrongdoing. Montoya de Hernandez, 473 U.S. at 538, 105 S.Ct. 3304; see also United States v. Glasser, 750 F.2d 1197, 1201 (3d Cir.1985). This is because the expectation of privacy is "less at the border than in the interior" and "the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is ... struck much more favorably to the Government." United States v. Hyde, 37 F.3d 116, 119-20 (3d Cir.1994). Even at the border, however, an individual is entitled to be free from unreasonable search and seizure and his or her privacy interests must be balanced against the sovereign's interests. Id. Consequently, certain searches, classified as "nonroutine," require reasonable suspicion of wrongdoing to pass constitutional muster. Montoya de Hernandez, 473 U.S. at 541, 105 S.Ct. 3304. Border searches thus fall into two categories: "routine searches that require no suspicion and nonroutine searches that require reasonable...

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