United States v. Burke, Crim. No. 82-0063 (TR).

• Decision Date: 10 June 1982
• Docket Number: Crim. No. 82-0063 (TR).
• Parties: UNITED STATES of America, (Plaintiff), v. Charles F. BURKE, Jr., and Alan Peter Quin, (Defendants).
• Court: U.S. District Court — District of Puerto Rico

540 F. Supp. 1282

UNITED STATES of America, (Plaintiff), v. Charles F. BURKE, Jr., and Alan Peter Quin, (Defendants).

Crim. No. 82-0063 (TR).

United States District Court, D. Puerto Rico.

June 10, 1982.

E. M. DeJesús, Hato Rey, P. R., for plaintiff.

Carlos García Gutiérrez, Santurce, P. R., for defendants.

DECISION AND FINDINGS

TORRUELLA, District Judge.

The following constitutes the opinion of the Court on Defendants' "Motion to Suppress Evidence" as well as the findings pursuant to Rule 23(c) of the Federal Rules of Criminal Procedure.

Defendants are charged in a one count indictment in which it is alleged that "on or about March 28, 1982, on the high seas and within the special maritime and territorial jurisdiction of the United States, that is, on board a vessel of the United States, the `IRENE B.II'", they aided and abetted each other in unlawfully, knowingly and intentionally possessing approximately 41,000 pounds of marijuana in violation of Sections 2, 7 and 9 of Title 18, and Section 955a of Title 21.¹

The facts are as follows:

Some time during the day of March 27, 1982, a United States Coast Guard patrol airplane spotted a black and white shrimper-type vessel in the Caribbean Sea south of St. Thomas, United States Virgin Islands. The vessel was in international waters in a course heading of 055°T, in the general direction of the Island of Anguilla. The vessel was identified by the aircraft as the "JEANIE B." It was not flying a national flag nor could a home port be observed on its stern. Because of various intelligence reports, including monitored vessel radio communications, the Coast Guard concluded that the subject vessel was heading for a "rendezvous with something or someone near the area of Dog Island northwest of Anguilla to conduct possible illegal activity."² Late on March 27 the Coast Guard cutter WHITEHORN was dispatched from St. Thomas to intercept and board this vessel. Throughout the daylight hours of March 28 the WHITEHORN searched, without success, the Anegada Passage, which separates the Virgin Islands from the Leeward Islands, of which Anguilla is part.

At 2330 hours (11:30 P.M.) of March 28 the WHITEHORN was still patrolling in the Anegada Passage, approximately 30 miles west of Anguilla, in international waters. The executive officer, Edward Krejci, was in command at the bridge. A radar contact was made with a vessel³ about 4 miles away, which could not be visually seen because it showed no lights. Krejci called the Captain to the bridge, Lt. J. E. DeJung, who proceeded to bring the WHITEHORN within 100 yards of the blacked-out vessel, at which point the WHITEHORN's searchlight revealed a black and white shrimper-type vessel, which DeJung first thought was named "JEANIE B.", but upon inspection by binoculars turned out to be the "IRENE B.II" (IRENE). In addition to no lights, this vessel showed no flag nor could a home port to be observed on its stern.⁴ It appeared low in the water, as if with a full cargo. DeJung attempted to contact the IRENE's crew through the VHF FM radio, on both channels 16 and 26 without success. He then used a loud hailer, identifying the WHITEHORN as a United States Coast Guard vessel. The WHITEHORN is 82 feet in overall length and is painted white, except for diagonal red and blue stripes on both sides of the bow, where the black letters "C G" are also painted in black, 15 inches in height. At this point the vessels were within 50 yards from each other with the WHITEHORN astern of the IRENE, both vessels in approximately East-North-East headings, at about the same speed (10 knots). A 6 foot chop was running and the wind was at 15 knots from the East. Upon the IRENE's failure to make any response, the WHITEHORN energized its blue flashing light and siren, and ran up International Code Flags "Sierra" and "Papa" ("S P") on its signal mast,⁵ and proceeded to illuminate those signals as well as the United States and Coast Guard ensigns, which were already flying. The spotlight was also intermittently flashed on the Coast Guard personnel on deck, who were uniformed and wore head gear.

The IRENE finally responded by proceeding to take evasive action. The WHITEHORN continued the actions previously described to no avail. This encounter lasted throughout the next 5 hours but was not entirely passive on either side. In addition to the evasive actions previously described, which consisted mostly of circular courses and abrupt changes in direction, the IRENE's crew attempted on two occasions to ram the WHITEHORN. The WHITEHORN in turn fired more than 90 rounds from a 50 caliber machine gun across the IRENE's bow in an attempt to get her to stop, to no avail. The WHITEHORN finally stopped her by towing a cable across her bow and fouling her screws.

The IRENE stopped dead in the water and started what eventually became a 10° list to port. They were still in international waters at Latitude 18° 11' North, Longitude 63° 29.5' West. Lt. De Jung eased the WHITEHORN's bow up to IRENE's stern and put a three-man boarding party on her, led by Krejci. While this was being done, one of the IRENE's crew stepped out of the pilot house and dumped overboard some plastic bags containing a white substance. The boarding party was in uniform (duck pants, light blue shirt and head gear) which clearly identified them as members of the Coast Guard, and were armed with one shot gun and side arms.

Krejci, who was the first aboard the IRENE and who had considerable experience in high seas boardings and drug-related seizures, smelled marijuana as he landed on the IRENE's deck. Two crew members who appeared were placed faced down on the deck of the IRENE's fantail, under armed observation by one of the coast-guardsmen. Krejci and the other coast-guardsman proceeded to search the IRENE for other crew and weapons, and to attempt to determine the cause of the IRENE's now pronounced list. They did a sweep of the forward hold and discovered it filled with burlap bales atop of which was scattered marijuana residue. The main hold was similarly occupied all the way up to the deck level. An incursion into the engine room revealed that one of the intake pipes had been shattered in an attempt to scuttle the IRENE, and that a considerable amount of water was coming into the hull. In the wheel house were observed a frequency scanner, a radar set, and a VHF radio set at Channel 26. The search of the IRENE produced no other crew members or weapons.

The crew of the IRENE turned out to be Defendants Charles F. Burke, Jr. and Alan Peter Quin. They produced ship's papers which revealed that the IRENE was an American flag vessel. A testing of the IRENE's cargo by Krejci, using a kit which is standard equipment for boarding parties, gave a positive reaction to marijuana, and he proceeded to place both Defendants under arrest. It was now 0615 (6:15 A.M.) of March 29th.

The IRENE was then towed to San Juan, Puerto Rico where it was determined that it carried 41,000 pounds of marijuana.

Defendants moved for the suppression of the evidence seized because of violation of their Fourth Amendment rights "when the Coast Guard boarded their ship and commenced search pursuant to ... 14 U.S.C. Section 89, there being no reasonable or articulable suspicion of any safety hazards or navel (sic) regulatory infractions", also claiming that there was no probable cause to believe that any crime had been or was being committed. At the hearing Defendants also seemed to put at issue the validity of the extraterritorial application of 21 U.S.C. 955a.

In the light of the undisputed facts and the unanimous case law on these matters, Defendants' stance on these issues brings to mind what was stated by the Court in United States v. Cordero, 668 F.2d 32, 43 (CA 1, 1981): "While forceful advocacy is desirable, overstatement, by engendering mistrust, can work to the ultimate disadvantage of a client."

Even the courts have recognized what has been obvious from time immemorial to seafares: that ships are not the same as houses. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); cf. United States v. Ross, ___ U.S. ___, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In Ross, 102 S.Ct. at 2162, the Court "noted that historically warrantless searches of vessels ...—as opposed to fixed premises such as a home or other building—had been considered reasonable by Congress." (Emphasis supplied). It is, of course, the word "reasonable" that is the key to Fourth Amendment issues in that it is only an un reasonable search that is proscribed by that Constitutional provision. Along this vein the Court in Ross, 102 S.Ct. at 2162-63, in quoting from Carroll v. United States says that:

... "The guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship or motorboat ... where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought."

The bottom line is, that those who go down to the sea in ships have "a lesser expectation of privacy in their ships than in their homes, obviating the usual fourth amendment requirements of a warrant." United States v. Green, 671 F.2d 46, 53 (C.A. 1, 1982); United States v. Hilton, 619 F.2d 127, 131 (C.A. 1, 1980), cert. den. 449 U.S. 887, 101 S.Ct. 243, 66 L.Ed.2d 113 (1980); United States v. Arra, 630 F.2d 836 (C.A. 1, 1980); United States v. Williams, 617 F.2d 1063 (C.A. 5, 1980) (en banc); United States v. Hayes, 479 F.Supp. 901, 907 (DCPR, 1979) rev. in part 653 F.2d 8 (C.A. 1, 1981).

The authority to stop and board American flag vessels on the high seas and to carry about searches and arrests incident...