US v. Aikens

• Decision Date: 12 May 1988
• Docket Number: No. CR 88-359-01 to CR 88-359-08.,CR 88-359-01 to CR 88-359-08.
• Parties: UNITED STATES of America, Plaintiff, v. George Gordon AIKENS, (01) Manuel Arcencio Angulo-Castillo, (02) Roberto Daniel Cayasso-Schellett, (03) Lay Chai Hai, (04) Anastacio Henry-Barnard, (05) Roosevelt Augustus Rodney, (06) Eusebio Samudio-Jimenez, (07) and William Graham Synder, (08), Defendants.
• Court: U.S. District Court — District of Hawaii

685 F. Supp. 732

UNITED STATES of America, Plaintiff, v. George Gordon AIKENS, (01) Manuel Arcencio Angulo-Castillo, (02) Roberto Daniel Cayasso-Schellett, (03) Lay Chai Hai, (04) Anastacio Henry-Barnard, (05) Roosevelt Augustus Rodney, (06) Eusebio Samudio-Jimenez, (07) and William Graham Synder, (08), Defendants.

Nos. CR 88-359-01 to CR 88-359-08.

United States District Court, D. Hawaii.

May 12, 1988.

COPYRIGHT MATERIAL OMITTED

Daniel Bent, U.S. Atty., Hawaii, Louis A. Bracco, Asst. U.S. Atty., Honolulu, Hawaii, for the U.S.

John Ashford Thompson, Honolulu, Hawaii, for Aikens.

Samuel P. King, Jr., Honolulu, Hawaii, for Angulo-Castillo.

Benjamin B. Cassiday, III, Honolulu, Hawaii, for Cayasso-Schellett.

Richard T. Pafundi, Honolulu, Hawaii, for Hai.

William A. Harrison, Honolulu, Hawaii, for Henry-Barnard.

Michael Levine, Federal Public Defender, Honolulu, Hawaii, for Rodney.

R. Steven Geshell, Honolulu, Hawaii, for Samudio-Jimenez.

Richard A. Kawana, Honolulu, Hawaii, for Snyder.

AMENDED MEMORANDUM AND ORDER RE MOTION TO SUPPRESS

TAKASUGI, District Judge.

INTRODUCTION

Defendants Roosevelt Augustus Rodney ("Rodney"), Lay Chai Hai ("Lay"), and George Gordon Aikens ("Aikens") seek an order to suppress all marihuana and other evidence seized during a search of the Christina M on the basis that such search and seizure was in violation of the defendants' fourth amendment rights. Defendants William Snyder ("Snyder"), Ensebio Samudio-Jimenez ("Samudio-Jimenez") and Manuel Angulo-Castillo ("Angulo-Castillo") have joined in one or more of such motions to suppress.

Generally, defendants claim that the search of the Christina M on the high seas was improper in that such search was conducted without a warrant. Defendant Aikens further challenges the stop and boarding of the Christina M by the U.S. Coast Guard preceding the search.

The government responds by contending that (1) the defendants do not have standing to challenge the legality of the search and, (2) a warrant is not required under the circumstances of this case, because (a) the U.S. Coast Guard has plenary statutory authority to search, without a warrant, any vessels on the high seas subject to the jurisdiction of the United States, (b) the search of the vessel on the high seas was under exigent circumstances, or (c) a consent to search was given by the flag nation.

It appears that defendants Roberto Daniel Cayasso-Schellett ("Cayasso-Schellett") and Anastacio Henry-Barnard ("Henry-Barnard") are not participating in this motion to suppress.

STATEMENT OF FACTS¹

During an ongoing undercover investigation of marihuana trafficking/importation, approximately two weeks preceding the seizure in this case, an undercover U.S. Customs agent was solicited by a marihuana trafficker to off-load a large quantity of marihuana from a mother ship located on the high seas southeast of the Hawaiian Islands. The undercover agent agreed to provide a vessel to off-load marihuana from the mother ship and transport the substance to the Bay Area of Northern California as directed by the trafficker.

A plan was developed among members of U.S. Customs, Drug Enforcement Administration and the U.S. Coast Guard whereby a crew of federal agents, posing as marihuana traffickers, would rendezvous with the mother ship and off-load the marihuana. The plan included the U.S. Coast Guard Cutter Mallow ("Mallow") to follow the undercover off-load vessel at a safe distance and remain in radio contact with the off-load vessel.

On February 16 and 17, 1988, the undercover vessel rendezvoused with the mother ship approximately 600-800 miles southeast of the Hawaiian Islands. The mother ship was identified as the Christina M, a Panamanian coastal freighter bearing a Panamanian flag. After off-loading to a capacity of approximately 14,000 pounds of marihuana from the Christina M, the undercover agents were able to ascertain that the Panamanian freighter still had a large quantity of marihuana remaining aboard. All identification, registry and description of the Christina M were relayed by radio from the undercover crew to the Mallow.

Thereafter, the government contends that on February 18, 1988, U.S. Coast Guard officials on the Mallow sought and received permission from Panamanian officials "to the enforcement of United States law by the United States against the individuals found aboard the M/V Christina M." Christina M was not then proceeding toward the United States.

On February 19, 1988, some 48 hours after the previous off-loading operation by the undercover vessel, the Mallow closed within visual distance of the Christina M. Lt. Commander Christian Bohner ("Bohner"), Commanding Officer of the Mallow, identified the Mallow as a U.S. Coast Guard vessel and requested permission to board the Christina M. Defendant Roosevelt Augustus Rodney ("Rodney"), Captain of Christina M, initially refused Bohner's request. Bohner than indicated to Rodney that the Coast Guard had permission of the Panamanian authorities to board and search the Christina M and that he, Bohner, had "other means" to stop the Christina M. Rodney relented and the Christina M made no effort to flee.

Shortly thereafter, without a search or arrest warrant or any efforts to secure same, the Coast Guard personnel from Mallow boarded the Christina M for the express purpose of searching the freighter for marihuana. A strong odor of marihuana was immediately apparent to all members of the boarding party. They found in excess of 21,000 pounds of marihuana in the aft hold. Although no other cargo was found, other than the bales of marihuana, documents and other personal effects were found and seized from the living quarters assigned to the crew. Rodney and his crew of seven (7) men were arrested. The Mallow possessed radio equipment capable of communicating with a magistrate in Hawaii or the mainland.

The court will discuss the areas of dispute in the following sequence:

I. Applicability of the fourth amendment to searches and seizures of a foreign vessel on the high seas.

II. Standing to challenge the constitutionality of the search ("Standing").

III. Probable cause to search.

A. Statutory authority given to the Coast Guard.

1. Limitation on statutes.

B. Warrant requirement.

C. Exigent circumstances on the high seas.

D. Consent by the flag nation.

DISCUSSION

I. APPLICABILITY OF THE FOURTH AMENDMENT

Before any analysis of standing can be undertaken under U.S. v. Rakas, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), a determination must be made as to whether the fourth amendment applies to seizures and searches of foreign vessels on the high seas. Thereafter, the inquiry becomes whether the claimant is legally entitled to claim an infringement of that constitutional right. The Fifth Circuit in U.S. v. Cadena, 585 F.2d 1252, 1262 (5th Cir.1978), noted that "Once we subject foreign vessels or aliens to criminal prosecution, they are entitled to the protection of all our laws, including the Fourth Amendment." The Ninth Circuit, in U.S. v. Peterson, 812 F.2d 486, 489, 494 (1987) assumed that the fourth amendment applies to the search of ships or crew on the high seas. This assumption is shared by the government and adopted by this court.

II. STANDING

We now delve into the concept of standing required to challenge the search as we apply the Rakas standard to the defendants' legitimate expectations of privacy. Defendants bear the burden of proof in establishing this privacy expectation. U.S. v. Sarda-Villa, 760 F.2d 1232, 1235 (11th Cir.1985). The privacy interest to support standing is an interest in the place searched, not an interest in the items found. Rawlings v. Kentucky, 448 U.S. 98, 104-106, 100 S.Ct. 2556, 2561-2562, 65 L.Ed.2d 633 (1980).

As it relates to the marihuana seized, U.S. v. Peterson, supra, at 494, by dictum, noted that crew members have no expectation of privacy in the vessel's cargo hold. U.S. v. Pinto-Mejia, 720 F.2d 248, 255 (2d Cir.1983), U.S. v. Ricardo, 619 F.2d 1124, 1130 (5th Cir.) cert. denied, 449 U.S. 1063, 101 S.Ct. 789, 66 L.Ed.2d 607 (1980) and U.S. v. Bent, 707 F.2d 1190, 1192-1193 (11th Cir.1983), cert. denied, 466 U.S. 960, 104 S.Ct. 2174, 80 L.Ed.2d 557 (1984), appear to firmly support the Peterson dictum. This court holds that crew members do not have standing to contest the seizure of marihuana taken from the cargo hold. However, they most certainly possess the requisite expectation of privacy as to any items, documents, or personal effects seized from their living quarters in the Christina M. See U.S. v. Ricardo, supra.

In this analysis, Rodney's privacy expectation as Captain of the Christina M should be separately viewed. When detached from the harbor and on the waters, the captain is the focal point of leadership, control, regulation and discipline. In this regard, he is the final and ultimate authority for direction, guidance and responsibility. He remains the pulsebeat of all activities undertaken by the crew and vessel. This concept of total control is consistent with the recognition of a privacy expectation which emerges from such authority. This court, in viewing U.S. v. Pollock, 726 F.2d 1456, 1465 (9th Cir.1984); U.S. v. Massell, 823 F.2d 1503, 1507 (11th Cir.1987); U.S. v. Garcia, 598 F.Supp. 533, 536 (S.D. Fla.1984) and U.S. v. Bachner, 706 F.2d 1121 (11th Cir.1983) recognizes the interplay of exclusive control and certain privacy expectations. The so-called property entrustment theory with the defendant as bailee suggested in U.S. v. Manbeck, 744 F.2d 360 (4th Cir.1984) is supportive, but not as persuasive in finding the requisite expectation of privacy.

The government cites U.S. v. Bent, supra at 1192-1193, for the proposition that a vessel captain as well as crew members have no standing to contest a search of the hold. Although there is some dispute as to whether U.S. v. Bent correctly interpreted existing Fifth Circuit law in light of the en banc ...