United States v. Whitmore

• Decision Date: 09 April 1982
• Docket Number: Crim. No. 81-00012-B.
• Citation: 536 F. Supp. 1284
• Parties: UNITED STATES of America v. Thomas George WHITMORE, James Crain Bradley, Garret Dillon, Defendants.
• Court: U.S. District Court — District of Maine

536 F. Supp. 1284

UNITED STATES of America v. Thomas George WHITMORE, James Crain Bradley, Garret Dillon, Defendants.

Crim. No. 81-00012-B.

United States District Court, D. Maine.

April 9, 1982.

COPYRIGHT MATERIAL OMITTED

William H. Browder, Jr., Asst. U. S. Atty., Bangor, Maine, for the U. S.

Michael Washor, Washor & Washor, New York City, for Dillon.

Robert I. Kalina, New York City, for Bradley.

Marshall A. Stern, Bangor, Maine, for Whitmore.

MEMORANDUM OPINION ON MOTIONS TO SUPPRESS

CYR, District Judge.

On September 10, 1981, defendants Thomas George Whitmore, James Crain Bradley and Garret Robert Dillon were charged in a three-count indictment with: (1) conspiracy to possess, with intent to distribute, approximately five and one-half tons of marijuana in violation of 21 U.S.C. §§ 841 & 841(b)(6); (2) possession of, with intent to distribute, approximately five and one-half tons of marijuana in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(6), and 18 U.S.C. § 2; and (3) knowingly permitting a vessel within the territorial waters of the United States to be used as a place of resort for persons conspiring and preparing to commit an offense against the United States in violation of 18 U.S.C. § 2274.

Presently before the court are (1) the motion to suppress filed October 22, 1981 by defendants Bradley and Dillon, joined by defendant Whitmore on November 13, 1981, and (2) the motion to suppress filed by defendant Whitmore on November 13, 1981. These motions seek the suppression of all evidence obtained from the vessel Relentless on or about July 12, 1981 allegedly in violation of the Fourth Amendment to the Constitution of the United States. An evidentiary hearing has been held, the issues have been comprehensively briefed and argued by counsel, and the following memorandum opinion contains the findings of facts and conclusions of law required by Federal Rule of Criminal Procedure 12(e).

I THE FACTS

On Sunday, July 12, 1981, the Coast Guard cutter Point Hannon was on routine law-enforcement and search-and-rescue patrol in East Penobscot Bay about one-half mile south of Seal Island, Maine. As the cutter sat drifting off the coast at about 3:50 p. m., Master Chief Petty Officer Leslie C. Parritt, Jr., while fishing with 6 of his 10 crewmen, spotted a sail on the horizon, between 5 and 10 (perhaps 12) miles away, outside U. S. territorial waters. Considering it unusual for a sailing vessel to be approaching the coast of Maine from the open sea, Commander Parritt instructed the navigator of the Point Hannon, Petty Officer William G. Smith, to keep an eye on the sailboat. At this point in time Commander Parritt determined that he would stop and board the sailboat.¹

Smith watched the sailboat for about two hours and determined that it was heading downwind almost directly north-northeasterly toward the coast of Maine and the Point Hannon.

The sailboat closed to within 2 or 3 miles of the Point Hannon by approximately 5:00 to 5:30 p. m., at which time Commander Parritt ordered the Point Hannon underway to investigate and board the sailboat.

By the time the vessels had closed to within about 1 mile, Smith could read through his binoculars — "Relentless", "Delaware", and "DL4264K" on the sailing vessel, which was flying an American flag. The Relentless appeared to be a 46-foot, sloop-rigged, fiberglass racing boat painted three shades of blue, with the darkest shade (almost black) at the bottom, a lighter shade extending upward from the normal water line, and the lightest (almost sky) blue shade topmost.

As the Point Hannon closed to within about three-quarters of a mile, the Relentless turned 180 degrees to the south or a few degrees west of south, away from the Point Hannon, from its original heading directly downwind to directly upwind.² Parritt and Smith interpreted the change of heading as an effort to flee. Defendants argue that the reversal in direction was due to the fact that the Relentless was approaching an area marked "danger" on the nautical chart carried aboard the Relentless.

Commander Parritt ordered full power applied to the Point Hannon.

Within from three to five minutes, as the Point Hannon approached to within one-half mile or 1,000 yards, the Relentless again reversed its heading, turning back toward the Point Hannon, dropping its sails and continuing underway in its original north-northeasterly direction under auxiliary power. At the time the Relentless dropped sail it was between one and one-half and two and one-half miles off Seal Island and there was a five to ten-knot breeze.

After the Relentless turned the second time, through his binoculars Smith saw the defendants James C. Bradley and Garret Dillon in the cockpit of the Relentless. As the Point Hannon came closer, Smith considered it unusual, in light of his prior experience, that the two men aboard the Relentless did not wave or call the cutter on their radio to inquire if there was anything the coastguardsmen wanted. On the other hand, the coastguardsmen did not wave or attempt to contact the Relentless at the time.

As the Point Hannon approached to within about 200 yards of the Relentless, Smith and Parritt noticed that it was sitting fairly low in the water, even for a racing boat designed to ride low in the water,³ and that it was not bobbing around much, despite the fact that a small, fiberglass sailboat is likely to bob considerably even in the light two-foot swells running that day. Smith concluded that the Relentless was probably carrying a lot of ballast.

As the Point Hannon closed to within about 100 or 200 yards of the Relentless, Commander Parritt mustered a boarding party. The Point Hannon made a port turn around the Relentless, pulled astern of it at a distance of from 50 to 150 yards, and lowered the 14-foot rubber boarding launch from the port side. The blue light on the Point Hannon had been activated by the time the boarding party, consisting of Petty Officer Smith and First Class Petty Officer Vernon Shay, pulled along the starboard side of the Relentless, which was continuing underway at five or six knots. Shay testified that as the boarding launch approached to within about eight or ten feet of the Relentless he could smell what he believed from his prior experience and training to be marijuana. Smith called to the men on the Relentless: "We're Coast Guard law enforcement officers and we intend to board your boat." (Tr. 75, 137). Defendant Bradley, who was in the cockpit on the starboard side of the Relentless leaning over the rail facing the boarding launch, responded: "Is this a safety boarding?" Holding up life jackets and other safety equipment, Bradley continued: "I have all my safety equipment; here are my life preservers. I've got my flares." (Tr. 23, 76, 138). Either Smith or Shay responded: "We are coming aboard to enforce all U. S. law." Bradley then asked whether the men were making a customs boarding. Smith and Shay repeated that they were boarding to inspect for compliance with all U. S. laws. Bradley continued to ask questions regarding the reasons for the boarding and insisted that there was no need for any type of boarding.

During these verbal exchanges between the coastguardsmen and defendant Bradley, the Relentless continued underway at 5 or 6 knots. When it became apparent to Smith that the Relentless was not going to stop without a show of force, he picked up a shotgun from inside the boarding launch and displayed it in front of him at a 45-degree angle with the muzzle over his left shoulder, stating: "Heave to, we're coming aboard." (Tr. 79).⁴ At this point Bradley said: "The automatic pilot's on; I don't have control of the boat." Smith responded: "Shut down your engines; we're coming aboard!" Bradley shut down the engines and the Relentless came to a stop.

As Shay climbed aboard the Relentless, Smith handed him the shotgun and the boarding kit containing drug-testing equipment.⁵ Smith climbed aboard and immediately detected a very strong odor of what he believed was unburned marijuana.⁶ Smith testified that he had "a strong suspicion that there was marijuana on board that vessel once he had boarded it." (Tr. 84).

Introducing himself and Shay as federal law enforcement officers, Smith again stated that the boarding was for the purpose of examining the vessel for compliance with all U. S. laws and regulations. Smith asked to speak with the skipper. Receiving no response, he repeated the question and again got no response. Smith asked: "Then neither one of you admits to being the operator of the boat;" to which both responded: "No".

Smith next asked to see a certificate of number.⁷ Bradley said: "I don't think we have one on board." (Tr. 84). Smith asked Bradley whether he was sure he didn't have a certificate. Bradley answered: "Well, maybe. I'll go below and have a look." (Tr. 29, 86). Bradley proceeded belowdecks by climbing down a ladder at the front of the cockpit. From on deck, Smith could see a purple curtain hanging belowdecks, just beyond the ladder. Smith saw Bradley look behind the curtain briefly, then walk off to his left toward an area in which was located, Smith later learned, a chart table.

Both Smith and Shay were wearing hipholstered sidearms in open view. Throughout the boarding, Shay held the shotgun at port arms. While Bradley was belowdecks, Smith loaded and reholstered his sidearm.

Within about two or three minutes after the boarding of the Relentless, Commander Parritt called from the Point Hannon to inquire whether Smith and Shay were having problems. Shay responded that they were not getting any cooperation and that he had detected the odor of marijuana. Having observed the difficulties encountered by his men in boarding the Relentless, Parritt had already dispatched a third coastguardsman, Machinery Technician Pate, to the Relentless. Pate was on his way to the Relentless while the radio communications between Parritt and Shay took place....