United States v. Petrulla, 78-141 Cr. J-C.
| Decision Date | 13 October 1978 |
| Docket Number | No. 78-141 Cr. J-C.,78-141 Cr. J-C. |
| Parties | UNITED STATES of America v. Edward Frederick PETRULLA et al. |
| Court | U.S. District Court — Middle District of Florida |
Curtis S. Fallgatter, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff.
Michael Doddo, Miami, Fla., for Edward Frederick Petrulla.
Jack R. Blumenfeld, Miami, Fla., for Geoffery Bain Tannhauser.
John Steven Berk, Fort Lauderdale, Fla., for Charles Thomas Purcell.
Carlton P. Maddox, Jacksonville, Fla., for Carl Billy Knowles.
Patrick A. Podsaid, Miami, Fla., for Arthur John Loye.
Alan S. Ross, Miami, Fla., for Robert Ernest Allen.
Joseph H. Kelinson and Joel R. Magazine, Miami, Fla., for Marvin Paul Leask, John Doe, aka Bradley.
Reese A. Waters, Jr., Orange Park, Fla., for Ralph Pool.
Wayne E. Flowers, Jacksonville, Fla., for Manuel Ospina.
Louis R. Hardin, Jr., Jacksonville, Fla., for Miguel Saiz Monroy.
William J. Dorsey, Jacksonville, Fla., for Lorenzo Robledo Garcia.
William F. Kachergus, Jacksonville, Fla., for Hernan Ahumada.
Steven R. Heller, Jacksonville, Fla., for Jose Ayola.
William T. Lassiter, Jr., Jacksonville, Fla., for Rafael Barrio.
Daniel D. Richardson, Jacksonville, Fla., for Victor Bolano.
David R. Fletcher, Jacksonville, Fla., for Celso Rene Sanchez, a/k/a Raul Brito.
H. Randolph Fallin, Jacksonville, Fla., for Damis Caicedo.
Robert W. Elrod, Jacksonville, Fla., for Marciliano Caicedo.
Stephen H. Donohoe, Jacksonville, Fla., for Egidio Cordoba.
Edward W. Dawkins, Jacksonville, Fla., for Jairo Longaray.
Peter J. Fryefield, Jacksonville, Fla., for Eduardo Deluque.
Archibald J. Thomas, III, Federal Public Defender, for Ramon Midena.
Raymond E. Makowski, Jacksonville, Fla., for Jairo Nagupe.
Earl M. Johnson, Jacksonville, Fla., for Carlos Ortiz.
Christopher W. Gardner, Jacksonville, Fla., for Jorge Salas de la Osso.
Jeffry A. Mulrain, Jacksonville, Fla., for Libio Peralta.
Donald W. Matthews, Jacksonville, Fla., for Alejandro Pineda.
Gregory W. Johnson, Jacksonville, Fla., for Enrique Salas.
Moses Meide, Jr., Jacksonville, Fla., for Luis Vergaro.
Reese Marshall, Jacksonville, Fla., for Enrique Yabur.
Lester Makofka, Jacksonville, Fla., for Manuel Yabur.
The Court has for consideration the motions to suppress physical evidence related to the boarding and seizure of the MEREGHAN II (hereinafter referred to as the HEIDI). The motions to suppress have been filed by the following Defendants: PURCELL, KNOWLES, POOL, AHUMADA, SANCHEZ, E. CAIDEDO, CORDOBA, MEDINA, NAGUPE, SALAS, and M. YABUR. The motions have also been adopted by certain other defendants.
All thirty-one of the Defendants have been charged with both conspiracy to import marijuana and with conspiracy to possess marijuana with intent to distribute. Eight of the Defendants were allegedly involved in the conspiracy as it developed in the United States. The remaining twenty-three Defendants were allegedly involved in the conspiracy in Colombia and aboard the HEIDI at sea. The eight alleged conspirators who were in the United States will hereinafter be referred to collectively as the land-based conspirators (PETRULLA, TANNHAUSER, PURCELL, KNOWLES, LOYE, ALLEN, LEASK, and POOL) and the remaining twenty-three Defendants aboard the HEIDI will hereinafter be referred to collectively as the ocean-based conspirators. John Doe, a/k/a: BRADLEY, is not presently a party at trial.
On October 3, 5, and 6, 1978, the Court held a hearing on the Defendants' motions to suppress physical evidence. The Court is of the opinion this Order should be considered as findings of fact for the purpose of Rule 12(e), F.R.Cr.P.
The issues presented by the Defendants' motions and the government's opposition to it can be separated into three distinct groups: 1) the Defendants' standing to challenge the alleged illegal search and seizure; 2) the legality of boarding and seizure of the HEIDI if considered as administrative boarding by the United States Coast Guard; 3) the legality of the boarding and seizure of the HEIDI if considered from a probable cause perspective.
The basic facts surrounding the motions involve the seizure of the HEIDI in international waters approximately three hundred and fifty miles off the coast of Florida. Commencing in July and continuing through the early part of August, 1978, the Drug Enforcement Administration (hereinafter referred to as DEA) had participated in an undercover capacity with the planning and assisting of certain of the Defendants with a planned off-loading of marijuana from a mothership off the coast of St. Augustine, Florida. DEA agents Weed and Story had the responsibility of finding and retaining off-loading vessels to bring the marijuana back to the United States. The alleged land-based conspirators had furnished the DEA agents with information regarding the description of the vessel which would be bringing the marijuana from Colombia and the planned coordinates of the rendezvous.
The United States Coast Guard was alerted by the DEA as to the description of the vessel and the point of rendezvous. On August 5, 1978, a United States Customs aircraft spotted a vessel fitting the description supplied by DEA to the Coast Guard. The Coast Guard was informed of the sighting and dispatched the cutter Cape Knox to surveil the suspect vessel. The surveillance continued for two days and the Cape Knox with the assistance of bouy tender Sagebrush boarded the vessel which was named the HEIDI on August 8, 1978.
It is well settled that a defendant must have standing to assert a challenge to an alleged illegal search.
Generally, a defendant will satisfy standing requirements (1) if he has a proprietary or possessory interest in the place searched or the object seized adequate to give rise to a reasonable expectation of privacy, (2) if he was on the premises at the time of the contested search and seizure, or (3) if he is charged with an offense that includes as an essential element, possession of seized evidence. United States v. Dyar, 574 F.2d 1385, 1390 (5th Cir. 1978).
In the instant case, the Defendants seek to suppress the vessel HEIDI, the marijuana found aboard the HEIDI, and all charts, documents, radios, and other physical items found aboard the HEIDI.
The alleged ocean-based conspirators aboard the HEIDI quite obviously have standing to contest the search and seizure by the Coast Guard in light of the fact that they were on the premises at the time of the search and seizure. On the other hand, none of the alleged land-based conspirators was aboard the HEIDI, or has asserted a possessory or proprietory interest in the items seized. Finally, it is evident from a reading of the indictment that possession of the items sought to be suppressed is not an essential element of the offenses charged (i. e., conspiracy to possess and conspiracy to import marijuana). Even though the alleged land-based conspirators do not come within the ambit of the elements set forth in Dyar, those eight defendants argue constructive standing based on the fact that they are charged in the same conspiracy with certain of the possessing parties. After a thorough review of the law of standing in this area, the Court has found no authority for such a proposition. Accordingly, the Court is of the opinion that the alleged land-based conspirators identified previously are without standing to challenge the alleged illegal search of the HEIDI. The remaining twenty-three defendants aboard the HEIDI have standing to challenge the alleged illegal seizure.
The evidence adduced at the hearing showed that the United States Coast Guard Officers who surveilled the HEIDI for more than two days never saw the vessel flying a flag of any nation. The HEIDI had the home port of Williamsted, Netherland Antilles written on the vessel. On August 6, 1978, the Commander of the cutter, Cape Knox, (Lieutenant Centonzi) radioed the vessel HEIDI and inquired about certain matters. The Commander asked the name of the vessel, the home port, the cargo, the radio call sign, the number of people on board, the last port of call, the next port of call. An individual who spoke in English replied that the name of the vessel was the HEIDI, the home port was Williamsted, Netherland Antilles, that the cargo was hi-fi equipment and spices, that the call sign was 2PQE1, that there were 12 people on board, that the last port of call was Colon, Panama, and the next port of call was Hamilton, Bermuda. The next day, August 7, 1978, Lieutenant Centonzi radioed the HEIDI again and requested the same information and, additionally, the name of the HEIDI's agent. The HEIDI responded with the name of an agent in Panama and gave the same response to the questions of the previous day with the exception that the next port of call was unknown. The cutter Cape Knox relayed this information to the Coast Guard's operation center in Miami. The Coast Guard then requested the United States State Department to confirm whether the vessel was of Netherland Antilles registry as indicated by the HEIDI or was of United Kingdom registry because of the call sign. The Coast Guard also requested confirmation of whether the agent in Panama could verify the information given by the HEIDI. The information which the Coast Guard received was that the HEIDI was neither registered in the United Kingdom nor in the Netherland Antilles, and that there was not an agent in Colon, Panama of the same name as that given by the HEIDI. From this information, the Commandant of the Coast Guard determined that the vessel HEIDI was a stateless vessel and could be boarded for determination of its documentation and registry.
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