US v. Hilton

• Decision Date: 22 January 1979
• Docket Number: Crim. No. 78-12-ND.
• Citation: 469 F. Supp. 94
• Parties: UNITED STATES of America v. Terry Wayne HILTON, a/k/a Wayne Milton, et al.
• Court: U.S. District Court — District of Maine

469 F. Supp. 94

UNITED STATES of America v. Terry Wayne HILTON, a/k/a Wayne Milton, et al.

Crim. No. 78-12-ND.

United States District Court, D. Maine, N. D.

January 22, 1979.

COPYRIGHT MATERIAL OMITTED

George J. Mitchell, U. S. Atty., Portland, Me., for plaintiff.

Martin K. Leppo, Anthony M. Traini, Boston, Mass., for defendants.

MEMORANDUM OF OPINION AND ORDER ON DEFENDANTS' MOTIONS TO SUPPRESS

GIGNOUX, Chief Judge.

Sixteen defendants are charged in a one-count indictment with conspiracy to possess with intent to distribute approximately nine tons of marijuana in violation of 21 U.S.C. § 846. Presently before the Court are defendants' motions to suppress pursuant to Fed.R.Crim.P. 12(b)(3) and 41. An evidentiary hearing has been held, the issues have been comprehensively briefed and argued by counsel, and the following memorandum opinion contains the Court's findings of fact and conclusions of law as required by Fed. R.Crim.P. 12(e).

I THE FACTS

A. The Boarding and Search of the SOUTHERN BELLE—Arrests of Defendants Hilton, Baggett and Stover

On May 23, 1978, the 327-foot United States Coast Guard cutter DUANE, under the command of Commander Leo N. Schowengerdt, was in the Gulf of Maine on a routine offshore law enforcement patrol. The DUANE's duties included identifying vessels, ascertaining their activities, performing documentation and safety inspections, and enforcing applicable federal law. The DUANE was on a routine patrol with no special assignment toward the interdiction of drugs. Prior to May 23 adverse weather conditions had precluded any boardings by the DUANE on its patrol. On May 23, however, the weather was clear, the visibility was excellent, and around 8:00 a. m. the DUANE began an active day. During the morning, it sighted three fishing vessels, the VITA MARIA, the SEA FLEA, and the JUDITH ANN. Boarding parties conducted documentation, safety, and fishery inspections on all three.

Shortly after 1:00 p. m., the DUANE made radar contact with another vessel, subsequently identified as the SOUTHERN BELLE. Based on the course of the vessel, as determined by radar, it was ascertained that the SOUTHERN BELLE was destined for Mount Desert Island, Maine, and for no foreign point. Schowengerdt decided to close and make visual contact with the sighted vessel. Upon arriving at the point of intercept, approximately one hour after the initial contact, the DUANE observed the name and home port on the stern of the vessel: "SOUTHERN BELLE, Wilmington, North Carolina." While cruising on a parallel course about a half mile from the SOUTHERN BELLE, Schowengerdt contacted the El Paso Intelligence Center ("EPIC"). EPIC responded that it had no information whatsoever on the SOUTHERN BELLE.¹

Schowengerdt spoke to the SOUTHERN BELLE by radio and exchanged pleasantries. He noted that there were no registration numbers on either side of the bow of the SOUTHERN BELLE.² Schowengerdt determined to board the SOUTHERN BELLE for a documentation and safety inspection. His decision was based on a combination of factors, including its lack of shown numbers; its geographical position in view of the recent foul weather; the abnormality of a North Carolina vessel being in Maine waters at that time of year; the appearance of the persons on deck, who were clothed in foul weather gear despite the fine day; and the ship's course toward the coast of Maine.

Schowengerdt assigned Lieutenant Paul Howard, the DUANE's senior boarding officer, and Ensign Robert Watson, the DUANE's intelligence and law enforcement officer, to conduct the inspection. The boarding party was instructed to conduct a documentation and safety inspection, but if the vessel had been boarded recently to "just turn around and come back."

The DUANE made a full circle to take up a position to the rear of the SOUTHERN BELLE for the safe launching of the boarding craft, the DUANE I, a 26-foot motor lifeboat. While doing this, the DUANE announced its intention to board by international flag hoist. When the DUANE I was in the water, the SOUTHERN BELLE contacted the DUANE by radio, asking if they were going to be boarded. Schowengerdt told them that they were. The SOUTHERN BELLE shortened sail to facilitate the boarding.

Howard and Watson took with them the customary boarding kit, which included a briefcase with various documents and checklists. In addition, Howard placed the DUANE's drug test kit in the boarding case. Although he had not been instructed by Schowengerdt to take the drug test kit, Howard felt that the kit should be taken because of the SOUTHERN BELLE's appearance as a pleasure yacht. Howard and Watson were in uniform and unarmed. The DUANE I had a three-man crew and contained two .45 caliber pistols.

The SOUTHERN BELLE was boarded at approximately 3:30 p. m. The boarding took place approximately 20 miles from the coast. Watson was the first to board. He identified himself and asked which of the three crew members — later identified as defendants Terry Wayne Hilton a/k/a Wayne Milton, William J. Baggett and Andrew N. Stover — was the master. Baggett identified himself as the master, and Watson asked Baggett for the vessel's documentation. Baggett handed Watson two folders of papers, about four or five inches thick, including various bills of sales, letters, registration papers and the like.³ Watson, with Howard overlooking, sat down in the cockpit area and examined these papers. Baggett said the vessel had been boarded in February in Chesapeake Bay. Among the papers was a CG-4100 form which showed that a satisfactory inspection had been conducted at that time, but that the vessel was then named the HURLEVENTS and was owned by Wrightsville Sound Sailing, Inc. Baggett explained that the three of them had been hired by the owner, one Wayne Milton, to bring the vessel to Bar Harbor, and inquired how long it would take to reach Bar Harbor. Howard told him it would take five to six hours and that they should be there around 8:30 or 9:00 p. m. Baggett stated that he figured they would arrive around sunset.

After approximately ten minutes reviewing the sheaf of papers presented by Baggett, Howard and Watson were unable to determine the status of the vessel. Although there was a North Carolina state registration form, it was not in the current owner's name. There were no state registration numbers on the bow, and Baggett had said that these numbers had washed off in a storm. Nor did the papers include any valid federal documentation. Howard felt that the vessel might be stolen. He had noted a number in the upper right-hand corner of various bills of sale or license and enrollment documents where the official registration number would appear on valid enrollment documents. Aware that, if the vessel was federally documented, this same official registration number should also be affixed to the vessel's main beam, the officers felt that checking for the main beam number might be a possible means of identifying the vessel as the same vessel described in the various papers presented by Baggett. Howard asked Baggett where the main beam number was located. Baggett stated that he did not know. Howard indicated that it most likely was in the engine room, and inquired where the engine room was. Baggett showed Howard to the compartment just forward and below the cockpit level, and Howard stepped through the hatch and into the engine room.⁴

While Howard was entering the engine room, Watson stooped in the cockpit at the entrance way to the living compartment while Baggett lifted a deck plate, apparently looking for the main beam number. From his crouched position, Watson looked forward and saw burlap bags in the living compartment partially covered by clothing and blankets. Watson suspected that they were bales of marijuana. He proceeded to the after part of the cockpit and radioed the captain to send an armed boarding party, since he felt unsafe in not being armed.

After about a minute and a half, Howard came out of the engine room. He had been unable to find the main beam number, but had made a safety inspection. As he was on his way to the cockpit to rejoin Watson, he too saw what appeared to be bales of marijuana in the living area. When Howard reached the deck, he and Watson conferred and decided to continue the safety inspection so as not to arouse suspicion of the crew. At this time, Howard noticed the odor of marijuana.

An armed boarding party was dispatched by the DUANE in DUANE II, the other 26-foot motor boat carried by the DUANE. Upon arrival of the armed boarding party, Howard asked the three SOUTHERN BELLE crewmen about the bales below deck. They refused to answer. Howard took a sample from one of the bales, and a field test proved positive for marijuana. He communicated the results of the test to Schowengerdt aboard the DUANE. Schowengerdt instructed Howard to arrest the three crew members and seize the vessel. Howard asked Baggett if he were in charge. Baggett said, "No," and Hilton said, "I am in charge," giving his name as "Wayne Milton." At this point, Howard arrested the three crew members, advised them of their Miranda rights, and seized the SOUTHERN BELLE. The arrested suspects were transported to the DUANE about 6:00 p. m.

The SOUTHERN BELLE was secured for sea and prepared for towing by a prize crew under Howard's command. It was taken in tow at approximately 7:33 p. m. Schowengerdt told Howard to search the vessel for any papers or documents that might indicate exactly where it was going.⁵

The SOUTHERN BELLE was searched by the prize crew under Howard's supervision. During the course of the search, at about 8:00 p. m., Radarman Bradley Schmitt, a member of the prize crew, discovered a locked briefcase under a metal hatch in the living compartment. Shortly thereafter, Schmitt discovered six rolls of film in separate containers and a camera with a partially exposed roll of film in it. Schmitt brought these items to Howard.

Schmitt and...