UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
July 8, 1980
UNITED STATES OF AMERICA against BARTHOLOMEW EGAN, RICHARD HART, ANGEL DANIEL PACHECO, and JOSE PEDRO VASQUEZ-CASTRO, Defendants.
The opinion of the court was delivered by: SWEET
The defendants have moved to suppress thirty tons of marijuana seized from the JOSE GREGORIO, evidence concerning "baggies" of marijuana viewed aboard the JOSE GREGORIO, statements made by defendants Egan and Hart following their arrest on board the JOSE GREGORIO and the VIGOROUS, and statements made by defendants Pached and Vasquez-Castro following their arrest. Pacheco and Vasquez-Castro have also moved to exclude similar act evidence and witness depositions of material witnesses. Pacheco, Hart and Egan have renewed their motions for a severance.
These motions present the difficulties of enforcement of the laws of the United States by the United States Coast Guard ("Coast Guard") on the high seas, while seeking to observe the punctilio of constitutional guarantees whose contours have proved elusive to this and other courts. Observance of the somewhat intricate doctrines of the Fourth Amendment can be complicated by sixty-five mile per hour gusts and twelve foot swells one hundred fifty miles into the Atlantic Ocean. Nevertheless, if the arm of the Government can reach out over the Atlantic to seize the JOSE GREGORIO, a stateless vessel manned by seven Colombian crew members and two United States citizens, as this court has recently held, so also do the rights assured by the Constitution extend to possible law enforcement abuses on the high seas.
In addition to the testimony adduced during a four day suppression hearing, copies of the logs of the Coast Guard cutters VIGOROUS and CAPE STRAIT and copies of communications by Coast Guard officials were submitted as evidence. This opinion constitutes findings of fact and conclusions of law as required by Fed.R.Cr.P. 12(e).
According to its radio traffic initiated on March 21, 1980, the Coast Guard received on March 20, 1980 uncorroborated information that on March 19, a ship was offering vessels $10,000 to transport marijuana to the Massachusetts coast and that on March 20, three vessels were offered from $1,000 to $20,000 to transport a man ashore from a Venezuelan vessel named JOSE GREGORIO, described as a 75 to 80 foot yacht/steel-hulled freighter, at a location 48 miles off Shinnecock Inlet on Long Island. The Coast Guard checked the name of the vessel with the El Paso Intelligence Center ("EPIC"), a central computer maintained by the Drug Enforcement Administration containing a correlation of information concerning drug enforcement activities. The response from EPIC was that in July, 1978, a Venezuelan vessel named JOSE GREGORIO, a 75 foot freighter with white hull and blue superstructure, had been seized in conjunction with drug smuggling. The Coast Guard cutter VIGOROUS, 210 feet in length, of 1,000 displacement, was notified of this information.
The Coast Guard patrol boat CAPE STRAIT, 95 feet in length, was on routine patrol off Sandy Hook on March 20, 1980. In accordance with instructions from the Coast Guard's Group Rockaway Station to be on the alert for a vessel, the JOSE GREGORIO, suspected of smuggling, CAPE STRAIT began a "high suspect effectiveness period." On the morning of March 21, the CAPE STRAIT sighted a vessel named the JOSE GREGORIO, home port Los Piedras, Venezuela. The CAPE STRAIT commenced surveillance, having sought unsuccessfully to communicate with the JOSE GREGORIO by loud hailer, radio and flaghoist. The JOSE GREGORIO, after taking various courses and speeds, settled on a course of 130 degree at 4 to 5 knots, followed at a distance of 500 to 700 yards by the CAPE STRAIT. The VIGOROUS was notified of the sighting and proceeded to the scene at 14 knots.
By early afternoon the visibility had dropped to 500 yards, and at 19:00,
the commanding officer of the CAPE STRAIT observed bales of marijuana in the water alongside his vessel. Because of the sea conditions and the visibility, it was not possible to recover the bales of marijuana, recognized by the commanding officer to be such as a result of prior experience loading and unloading bales similar in appearance in the course of duty.
Communication was established between the VIGOROUS and the CAPE STRAIT, and searchlight sightings were exchanged at a distance of eight miles, at which time the CAPE STRAIT was on the starboard beam of the VIGOROUS, which was proceeding on a course of 200 degree. CAPE STRAIT and JOSE GREGORIO were on a course of 130 degree and proceeding at less than half the speed of VIGOROUS, which was closing rapidly. As the courses converged, VIGOROUS altered course to the left, and at the time of sighting was on a course within 30 degree of parallel course. All observers of the scene who testified as to the relative positions, Coast Guard officers Kerski, Powers and McCann, stated that the VIGOROUS approached the CAPE STRAIT from the latter's port quarter and that the CAPE STRAIT was astern of and off the starboard quarter of the JOSE GREGORIO.The VIGOROUS proceeded to close on the JOSE GREGORIO until she was between 200 and 500 yards off the port beam of the JOSE GREGORIO, her bridge even with the stern of the JOSE GREGORIO and on a parallel course at approximately the same speed.
The VIGOROUS swept the JOSE GREGORIO with her 24 inch searchlight, addressed the JOSE GREGORIO by loud hailer, identifying herself as a Coast Guard vessel, and requested the JOSE GREGORIO to communicate by radio. Commander Powers, Captain of the VIGOROUS, saw faces at the portholes of the JOSE GREGORIO as she rolled in the sea. No commands or requests were given to stop, or to alter course. The JOSE GREGORIO stopped, maintaining only enough speed to retain steerage way, and failed to make any response or acknowledgement of the request to communicate.
After a short interval the JOSE GREGORIO resumed its southeasterly course, the VIGOROUS dropped back on the port quarter of the JOSE GREGORIO, and the CAPE STRAIT maintained its position on the starboard quarter, all proceeding on a course and at a speed selected by the JOSE GREGORIO. On occasion the VIGOROUS illuminated the JOSE GREGORIO with its searchlight and sought to make radio contact.
At 23.06 a radio communication was received on board the VIGOROUS, and the sender requested medical assistance.When the Coast Guard inquired if the sender was the vessel being escorted, the sender responded affirmatively. Commander Powers, the commending officer of the VIGOROUS, stated that the boarding would take place the following morning and sought to obtain the identification of the ship and its home port, which information was not forthcoming.
During the early morning of March 22, the CAPE STRAIT was detached and departed the scene.
After dawn, at 06:50, the JOSE GREGORIO inquired if the Coast Guard was going to come aboard with a corpsman and was told that the boarding would depend on the weather. During this period the wind was about 35 miles per hour, gusting to 65 miles per hour, and the waves and swells were up to 12 feet or more. The JOSE GREGORIO gave no information about its identity.
At 10:45 the VIGOROUS notified the JOSE GREGORIO that if it desired to have a small boat sent over, it should alter its course 180 degree. The JOSE GREGORIO altered course and headed in a northwesterly direction toward Long Island. She radioed that another crew member was urinating blood and needed medical attention. Shortly after noon the JOSE GREGORIO stated that its crew consisted of seven Colombians and two Americans, who were doing the navigating. Both Americans were sick. The JOSE GREGORIO was running out of food and water. The Colombians were scared and did not know their destinations.
At 13:00 and thereafter, the JOSE GREGORIO transmitted a description of the sick crew member's symptoms as heart pains and then at 13:26 posed three questions: "Are we free to go where we want?," "Can we go to Bermuda?," "Are we in international waters?." Commander Powers testified that he answered each question affirmatively and added that the VIGOROUS would follow. The radio log indicates a response by VIGOROUS at 13:36 to the effect that Bermuda was 700 miles away and it was the understanding on VIGOROUS that the JOSE GREGORIO had no food and water and had an injured or sick man aboard. The JOSE GREGORIO responded with a statement that an instruction had been given to ask the questions.
At 15:12, the VIGOROUS observed bundles going over the side of the JOSE GREGORIO, some of which were recovered, tested and found to contain marijuana.
At 18:58, the JOSE GREGORIO again requested to know when medical help would be sent and was told that the weather would determine the time of boarding. A similar exchange occurred on the morning of March 23 with the vessels in a similar position. At noon, the VIGOROUS announced its intention to board. At 15:04 the JOSE GREGORIO again inquired as to the boarding and was told that it would occur in about an hour. At 17:04 the JOSE GREGORIO was requested to have all personnel on deck other than its helmsman, and the boarding was commenced. It was during these radio communications that Commander Powell noted that the speaker on the JOSE GREGORIO had a distinctive New England accent.
Ensign McCann was in command of the boarding party of seven, two of whom carried shotguns, the remainder armed with.45 caliber pistols. As soon as the boarding party came on board, Ensign McCann smelled the odor of marijuana. The Colombians were placed in handcuffs and were given Miranda warnings. Ensign McCann questioned Hart and Egan as to the registry, destination and cargo of the JOSE GREGORIO and received no information in response.Egan stated, "Go take a look," and gestured toward a hatch apparently leading to the engine room. In response to McCann's question, one or both indicated that the cargo was in that direction. Each refused to accompany McCann. Egan stated, "It's pot, man."
McCann left the Americans in the company of other members of the boarding party and proceeded alone down to the engine room in an effort to locate the main beam number.
The effort was unsuccessful, but he observed the contents of the forward hold through a hatch which was jammed partly open. The cargo was recognized by McCann to consist of bales of marijuana, later determined to weigh approximately thirty tons.
Ensign McCann returned to the pilot house and was told by one or both of the Americans in response to his question that the afterhold of the JOSE GREGORIO contained the same cargo. As he came from the engine room Ensign McCann testified that he saw marijuana sprinkled on the deck.Ensign McCann placed Hart and Egan under arrest, stated that he was seizing the ship and advised them that they were suspected of conspiracy to smuggle marijuana into the United States, that they had a right to remain silent, the right to an attorney when they reached port and that they did not have to answer any questions or volunteer anything. Hart stated something to the effect: "Don't do the crime if you can't do the time," a remark which was omitted from Ensign McCann's initial report.
Later, Ensign McCann observed two plastic bags containing marijuana, one in the cupboard in the gallery, the other in the pilot house. He neither seized nor tested the contents of the bags.
Hart, Egan and the rest of the crew were taken to the VIGOROUS, received food and showers. All except Hart remained handcuffed in the mess hall. Hart was in leg irons attached to a stanchion since he wished to lie down. Both Hart and Egan were given an advice of rights form which both signed and on which Egan indicated a request for an attorney.
Chief Warrant Officer Ripley was in charge of the prisoners. He was not instructed to interrogate the prisoners, nor did he put any questions to them concerning the JOSE GREGORIO or the matters for which they had been arrested.
In the course of the evening, Ripley and Egan had an exchange in the curse of "idle conversation" during which Egan stated that he had been restoring a house and working in a trucking business, and that he lived in Massachusetts. He said that his parents would be ashamed of him.
Under similar circumstances during the same period, Hart conversed with Ripley. Hart was reading a Bible. Ripley remarked that anyone reading the Bible can't be all bad. Hart stated that reading the Bible had prevented him from jumping over the side that he felt that sick. They established that Ripley knew Hart's father and that Hart had sailed out of Woods Hole. Ripley commented in sarcasm that his father would be proud of him. Hart responded by repeating the comment made to Ensign McCann: "Well, if you are going to do the crime, you got to be willing to do the time."
The preliminary issue is whether the defendants have standing to assert a violation of Fourth Amendment rights with regard to the seizure of marijuana from the hold of the JOSE GREGORIO.The defendants do have standing to raise any Fourth Amendment violation which may have occurred due to their arrests and the search of their persons. However, in this case, the discovery of marijuana did not result from the arrest of the defendants. At the point the arrests occurred on the afternoon of March 23, 1980, the Coast Guard was already aware of the presence of marijuana on board the JOSE GREGORIO. Bales of marijuana had been thrown overboard on March 22, and the crew of the VIGOROUS had recovered and tested two of the bales. Furthermore, Ensign McCann testified that as soon as he stepped aboard the JOSE GREGORIO he perceived a strong scent of marijuana. As a result, even assuming that the arrests and searches of the defendants were illegal, the discovery of the marijuana was not the fruit of any such illegility, but resulted from prior circumstances. See Rawlings v. Kentucky, 48 U.S.L.W. 4885, 4887-88 (U.S. June 25, 1980); Dunaway v. New York, 442 U.S. 200, 218 (1979).
The defendants argue that JOSE GREGORIO was seized on the afternoon of March 21, 1980, upon the arrival of the VIGOROUS and that the seizure resulted in an arrest of their persons. I disagree. Even assuming that a seizure of the JOSE GREGORIO occurred on March 21, that seizure did not constitute an arrest of the defendants. The Coast Guard officers did not restrain them physically, curtail their liberty aboard the JOSE GREGORIO, or conduct a search of their persons. No arrest of the defendants occurred on March 21.
The Supreme Court has repeatedly emphasized that "a court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendnant's own constitutional rights." United States v. Payner, 48 U.S.L.W. 4829, 4830 (U.S. June 23, 1980). See Rakas v. Illinois, 439 U.S. 128, 133-140 (1978). The Court in United States v. Payner, supra at 4830, stated that
the defendant's Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party.
In United States v. Salvucci, 48 U.S.L.W. 4881 (U.S. June 25, 1980), the Supreme Court abandoned the rule of automatic standing, which permitted a defendant charged with a possessory offense to challenge the legality of a search without claiming possession of evidence illegally seized. In order to determine whether a defendant has standing, a court must assess
not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.
Id. at 4883. In Salvucci, the Court held that a defendant did not have standing to challenge the legality of the seizure of stolen property from his mother's apartment.
In Rawlings v. Kentucky, supra, 48 U.S.L.W. 4885 (June 25, 1980), the police seized illegal drugs belonging to the defendant from a woman's handbag. Nevertheless the Court held that the defendant's own Fourth Amendment rights had not been violated since he had no legitimate expectation of privacy in the purse.
The defendants do not satisfy either branch of the Rakas test for assertion of a Fourth Amendment right. First, they have claimed no property interest in the seized marijuana and thus cannot claim to be aggrieved by its seizure. United States v. Salvucci, supra.
Second, the defendants have not demonstrated a reasonable expectation of privacy in the hold of the JOSE GREGORIO. The factors relevant to determination of a legitimate expectation of privacy include the right to exclude others from the place searched, the manner in which a person has used the location and the extent to which the person has taken precautions to assure the privacy of the place.See Rawlings v. Kentucky, supra at 4887; id. at 4889 (Blackmun, J., concurring); Rakas v. Illinois, supra, 439 U.S. at 143-44 n. 12; id. at 152-53 (Powell, J., concurring); United States v. Arboleda, No. 79-1278, slip op. at 3409 (2d Cir. June 9, 1980).
A vessel, like an automobile, carries with it a lesser expectation of privacy than a home or office. Cardwell v. Lewis, 417 U.S. 583, 590 (1974); Chambers v. Maroney, 399 U.S. 42, 49 (1970); United States v. Hilton, No. 79-1209, slip op. at 11 (1st Cir. April 11, 1980); United States v. Miller, 589 F.2d 1117, 1125 (1st Cir. 1978), cert. denied, 440 U.S. 958 (1979); United States v. Ingham, 502 F.2d 1287 (5th Cir. 1974), cert. denied, 421 U.S. 911 (1975). As the Supreme Court stated in Carroll v. United States, 267 U.S. 132, 153-54 (1925):
[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, motor boat, wagon or automobile, for contraband goods, 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.
A fishing-type vessel such as the JOSE GREGORIO within the 200 mile Fishery Conservation Zone is subject to administrative Coast Guard searches to determine whether the vessel is properly registered. Such a search could include an examination of the main beam number in the vessel's hold. See United States v. Hilton, supra, slip op. at 11. Moreover, like all ships in international waters, the JOSE GREGORIO would have been subject to a customs search upon entering the territorial waters of the United States, or of any other nation to which it may have repaired.
The JOSE GREGORIO was not a pleasure vessel, but rather a commercial ship. The hold of the vessel is not a place in which personal effects would ordinarily be kept. Compare Arkansas v. Sanders, 99 S. Ct. 2586 (1979) (personal luggage) with United States v. Williams, 617 F.2d 1063, 1084 (5th Cir. 1970) (ship hold) (en banc). In any event, though Hart and Egan were apparently in control of the ship, see United States v. Ochs, 595 F.2d 1247 (2d Cir.), cert. denied, 100 S. Ct. 435 (1979), there is no evidence that they either owned the boat or held any property interest in the cargo itself.
The defendants also took no precautions to guard the privacy of the forward hold.When the Coast Guard boarded, the hatch from the engine room to the forward hold was jammed ajar. Prior to the boarding, the defendants had jettisoned bales of marijuana into the Atlantic, thereby rendering the contents of the hold apparent.
Considering all the factors set forth in Rakas and its progeny, the defendnats had no legitimate expectation of privacy in the hold of the JOSE GREGORIO. Accordingly, the search of the hold by the Coast Guard did not infringe any Fourth Amendment rights of the defendants themselves.
The defendants also contend that the Salvucci decision in effect abrogates substantive rights previously enjoyed by the defendants, particularly since the Supreme Court has collapsed the issue of standing into the substantive inquiry as to whether a defendant possesses a Fourth Amendment right. Rakas v. Illinois, supra at 143. They urge that Salvucci should not be applied retroactively. I disagree.First, the refusal to recognize automatic standing in this case does not involve a retroactive application of Salvucci, since that case was decided prior to the suppression hearing. Salvucci did not alter the substantive rights held by the defendants under the Fourth Amendment, but merely changed the showing which they must make in order to establish that their rights have been infringed in cases involving possessory offenses. The defendants had a full opportunity at the suppression hearing to establish that their own Fourth Amendments rights were violated. They feailed to do so.
Second, even if this were a case of retroactive application, I would apply Salvucci retroactively. The familiar factors used to determine retroactivity of a court decision--the effect of a decision on the truth-seeking function of the trial, the good faith reliance on the prior rule by law enforcement officials and the effect of retroactivity on the administration of justice, Hankerson v. North Carolina, 432 U.S. 233, 421-42 (1977); Michigan v. Tucker, 417 U.S. 433 (1974)--have limited relevance in assessing the retroactivity of a decision such as Salvucci which limits rather than expands the capacity of the defendants to challenge law enforcement conduct. To the extent these factors apply, they support retroactivity. The rule announced in Salvucci is designed to enhance the truth-seeking goal of the trial.See Salvucci, supra, 48 U.S.L.W. at 4884. Moreover, defendants have submitted no evidence that they relied on the automatic standing doctrine in transporting marijuana on the high seas. Accordingly, Salvucci does apply to this case.
Although the defendants have not shown that seizure of the marijuana from the hold of the JOSE GREGORIO violated their own Fourth Amendment rights, it is appropriate to consider their claims as if they had made a proper showing.
The defendants contend that the JOSE GREGORIO was "seized" for Fourth Amendment purposes when the CAPE STRAIT began its surveillance of the JOSE GREGORIO on the morning of March 21, or if not at that point, then on the evening of March 21, when the VIGOROUS closed on the JOSE GREGORIO, came abeam of it, shone its light on the vessel and attempted to communicate by radio and loud hailer. I disagree.
A "seizure" occurs
within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.
United States v. Mendenhall, 48 U.S.L.W. 4575, 4578 (U.S. May 27, 1980) (plurality opinion) (footnote omitted); id. at 4580 n.1 (Powell J., concurring); Brown v. Texas, 443 U.S. 47, 50 (1979).
The following of the JOSE GREGORIO by the CAPE STRAIT did not constitute a seizure of the vessel. Terry v. Ohio, 392 U.S. 1 (1968); Henry v. United States, 361 U.S. 98 (1959). The CAPE STRAIT approached no closer than 500 yards from the stern of the JOSE GREGORIO. The fact that the CAPE STRAIT sought to communicate with the JOSE GREGORIO by flag signals, loud hailer and radio also does not constitute a seizure.Such requests for communication are customary at sea and were perfectly reasonable given the weather coinditions, the random course steered by the JOSE GREGORIO, the small size of the vessel and the absence of a flag.
Further, no seizure occurred when the VIGOROUS arrived on the scene and commenced surveillance. The JOSE GREGORIO was not "surrounded" by the Coast Guard. The CAPE STRAIT remained off the starboard quarter of the JOSE GREGORIO while the VIGOROUS maneuvered off the port beam of the vessel. It is true that the VIGOROUS made repeated efforts to communicate with the JOSE GREGORIO, and shone its powerful light on the vessel. However, the VIGOROUS did not cut off the JOSE GREGORIO or impede its progress. It did not order the JOSE GREGORIO to heave to for boarding. It issued no command or direction to the JOSE GREGORIO to stop or to change course. The only direction issued was a request to communicate. The JOSE GREGORIO did not comply with that request.
Although the JOSE GREGORIO slowed briefly to a speed sufficient only to maintain steerage way, that alone does not establish that a seizure occurred.The stopping was not in response to a command by the VIGOROUS. The JOSE GREGORIO halted its progress only momentarily, then proceeded on a southeasterly course of its own choosing. The JOSE GREGORIO refused to communicate with the VIGOROUS. The objective facts do not demonstrate that the JOSE GREGORIO reasonably would have thought that it was not free to depart at that time.
United States v. Nicholas, 448 F.2d 622 (8th Cir. 1971), the case principally relied on by the defendants, is distinguishable. There, two police officers approached either side of a parked car. One officer flashed his badge, knocked on the car window and ordered the defendant to roll down the window. This display of authority was held to constitute a seizure.
The show of authority was less significant here than in Nicholas. The Coast Guard vessels came no closer than 200 yards to the JOSE GREGORIO. The VIGOROUS did not issue any orders to the JOSE GREGORIO, but merely requested communication as it came alongside the vessel. Unlike the defendant in Nicholas, the defendants did not feel compelled to comply with any show of authority on the part of the Coast Guard.
The defendants also cite the Fifth Circuit's statement in United States v. Williams, supra, 617 F.2d at 1071 n.1, for the proposition that
Even the mere stopping of a vessel, without a boarding, is a fourth amendment "seizure" since the governmental action restrains the vessel's freedom to proceed.
As concluded above, however, the Coast Guard vessels did not restrain the JOSE GREGORIO's freedom to proceed. No "stoping" occurred as discussed in Williams, and therefore no seizure took place.
Even if it were to be concluded that a seizure occurred contrary to the conclusion just stated, there was no violation of Fourth Amendment rights. At the time of the alleged seizure in the early evening of March 21, the Coast Guard had sufficient evidence to warrant a seizure. The factors constituting probable cause at that time included the EPIC "hit," the unevaluated tip concerning mother ship operations, the hearsay statements of fishing vessels indicating that the JOSE GREGORIO was unwilling to enter a United States port, the size and type of the JOSE GREGORIO, which offered no functional explanation of its presence, its location in March, its apparent home port, the absence of a flag, the refusal to communicate and the presence of what appeared to be marijuana floating in its wake. Although the Government concedes that the boat reported by EPIC turned out to be a different JOSE GREGORIO, there has been no showing that this error was the result of gross negligence on the part of the Government. Accordingly, the EPIC "hit" supported the Coast Guard's reasonable belief at the time that the JOSE GREGORIO was involved in illegal drug smuggling activities. See Franks v. Delaware, 438 U.S. 154 (1978); United States v. Barnes, 604 F.2d 121, 152 (2d Cir. 1979), cert. denied, 48 U.S.L.W. 3678 (1980).
For these reasons, even assuming that a seizure occurred at 19:00 on March 21, that seizure was justified under either the "reasonable suspicion" standard applicable to an investigative stop, United States v. Brignoni-Ponce, 422 U.S. 873 (1975); Terry v. Ohio, supra, or the probable cause standard required for a warrantless seizure under exigent circumstances. See Cardwell v. Lewis, 417 U.S. 583 (1974).
I also conclude that no seizure occurred prior to the boarding on March 23. The evidence concerning the surveillance of the vessel, the communications concering medical assistance and the courses maintained until the afternoon of March 23 demonstrate voluntary action by the JOSE GREGORIO. No seizure occurred during these maneuvers, but only a lgeal surveillance.
The boarding on March 23 was consensual In order for a consent to a Fourth Amendment search to be valid, the Government must
demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.
Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973). Accord United States v. Watson, 423 U.S. 411, 424 (1976); United States v. Busic, 592 F.2d 13 (2d Cir. 1978); United States v. Isom, 588 F.2d 858, 861 (2d Cir. 1978).
The communications between the JOSE GREGORIO to the VIGOROUS on the subject of medical assistance for a crew member and course changes demonstrate consent, including the communications concerning freedom to leave or to travel to Bermuda. The crew members of the JOSE GREGORIO were not in Government custody or under interrogation, which would have been inherently coercive. They faced difficult choices because of the medical problems of Hart and Egan, the lack of food, the weather conditions, and apparent fear of the Colombian crew members. Yet these circumstances were not created by the Coast Guard, but by the defendants themselves.
Considering all the circumstances, I conclude that the defendants made an "essentially free and unconstrained choice" to permit the boarding and that their wills were not overborne, nor their "capacity for self-determination critially impaired." Schneckloth v. Bustamonte, supra at 225.
The defendants focus on testimony by Commander Powers that he intended to board the JOSE GREGORIO and would have done so regardless of consent. Yet, Commander Power's unexpressed intentions are immaterial to the issue of the defendants' consent. See Scott v. United States 436 U.S. 128, 138 (1978). Although the VIGOROUS notified the JOSE GREGORIO that it intended to follow, the intention to board was expressed in response to the request of the JOSE GREGORIO.
Even without consent, the boarding would not have violated the Fourth Amendment. At the time of boarding, there was probable cause to believe that the crew members of the JOSE GREGORIO were violating United States drug laws for the reasons already enumerated. In addition, since the evening of March 21 the VIGOROUS had recovered and tested bales of marijuana observed to be thrown from the JOSE GREGORIO. Captain Powers had heard the accents of Hart and Egan over the radio which he perceived to be New England accents, which tended to confirm the unevaluated mother ship tip. The consent of the Venezuelan government to boarding had been obtained, which tended to validate the EPIC hit. Considered together, these factors strongly indicated that the crew members aboard the JOSE GREGORIO were engaged in smuggling marijuana into the United States.
Due to the existence of probable cause, the Coast Guard had authority to board the JOSE GREGORIO to arrest the defendants even in the absence of consent. Beck v. Ohio, 379 U.S. 89, 96-97 (1964). No warrant was required in order to effect this arrest. Gerstein v. Pugh, 420 U.S. 103, 113 (1975).
Once on board, the Coast Guard would have been entitled to conduct a cursory search for any crew members in order to secure the ship. See United States v. Agapito, No. 79-1257 slip op. at 1704-1706 (2d Cir. March 12, 1980).However, the testimony demonstrates that this was not done. Rather, Ensign McCann waited for approximately thirty minutes after the boarding before going down to the engine room.
The defendants argue that a warrant was required in order to search the vessel and that under Fed.R.Cr.P. 41(c)(2), a warrant could have been obtained by radio. The Government counters that Fed.R.Cr.P. 41(a) only permits the issuance of a warranty by a judicial officer "within the district wherein the property or person sought is located," so that the Coast Guard could not have obtained a warrant for a search on the high seas. However, as noted in a similar context, "Rule 41(a) cannot limit or restrict the dictates of the Constitution to [sic] the United States." Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 160 (D.D.C. 1976). In the court's view, a judicial Officer has inherent authority to issue a warrant for a search on the high seas.
The limited warrantless search of the vessel conducted here was valid for two reasons. First, a cursory sweep of the ship was justified by analogy to the "automobile exception" to the warrant requirement. In Chambers v. Maroney, 399 U.S. 42, 51 (1970), the Supreme Court held that the warrantless search of an automobile stopped on the highway was permissible, because
there was no constitutional difference between the intrusion of seizing and holding the automobile until a warrant could be obtained, on the one hand, and searching the vehicle on the other.
Arkansas v. Sanders, 99 S. Ct. 2586, 2594 n.14 (1979). See also United States v. Ochs, supra at 1253-54. Like an automobile, a boat is "inherently mobile." The potential for destruction of evidence on the trackless seas is at least as great as that upon the highways.Thus the exception recognized in Maroney for the search of a car applies with equal force to a vessel seized at sea. The cursory investigation by Ensign McCann was reasonable and did not contravene the Fourth Amendment.
Second, under 14 U.S.C. § 89(a),
McCann was justified in descending into the engine room to check for the main beam number. The language of section 89(a) refutes the defendants' position that it is a purely administrative statute and can not be used for criminal investigations.
Ensign McCann had authority under that provision to check the main beam number to identify the vessel. The defendants refused to specify the registry or destination of the vessel, which gave rise to a reasonable suspicion that the vessel was stolen. Since grounds existed to place the crew members under arrest, it was apparent that the Coast Guard would be required to bring the JOSE GREGORIO into port and it was appropriate to determine the origin of the boat. While lawfully in the engine room, the bales of marijuana were in plain view through the hatch of the forward hold, See Coolidge v. New Hampshire, 403 U.S. 443, 465-473 (1971); United States v. Ochs, supra at 1257, and thus were subject to seizure without a warrant.
For the foregoing reasons, I hold that the marijuana seized from the JOSE GREGORIO on May 23, 1980 will not be suppressed.
Hart and Egan have moved to suppress certain statements which they made while on board the JOSE GREGORIO and the VIGOROUS. With respect to these motions, I conclude that the arrests of Hart and Egan occurred when the Coast Guard boarded the JOSE GREGORIO even though Ensign McCann did not formally announce that they were under arrest. Both Hart and Egan were placed under guard. They did not receive Miranda warnings at that point, but made several statements to McCann, which must be excluded on the Government's direct case. Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). However, because there is no evidence that the statements were involuntary or inherently suspect, these statements can be used to impeach the testimony of Hart and Egan. See Harris v. New Uork, 401 U.S. 222 (1971).
Ensign McCann testified that he later gave Miranda warnings to Hart and Egan that did not include a warning that any statement they made could be used against them. See Miranda, supra at 444. Therefore, Hart's statement while on board the JOSE GREGORIO, "Don't do the crime if you can't do the time," was taken in violation of his Miranda rights and may not be used on the Government's direct case. It is admissible to impeach Hart's credibility if he testifies.
The statements by Egan to Chief Warrant Officer Ripley on board the VIGOROUS, however, are admissible. Egan's Sixth Amendment rights had not attached at the time of Egan's detention on board the VIGOROUS.See United States v. Mohabir, No. 79-1423, slip op. at 3767-68 (2d Cir. June 23, 1980). However, once Egan had requested an attorney, he could not be interrogated until he had consulted an attorney. Miranda v. Arizona, supra at 474. The principal issue, therefore, is whether Ripley's conversation with Egan constituted "interrogation."
In Rhode Island v. Innis, 48 U.S.L.W. 4506 (U.S. May 12, 1980), the Supreme Court held that statements volunteered by a defendant who had requested counsel did not infringe the defendant's Miranda rights since the defendant was not "subjected to either express questioning or its functional equivalent." Id. at 4509. The Court stated,
A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or action,
the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.
Id. at 4509-10 (footnote omitted).
Under the definition set forth in Innis, the conversation between Ripley and Egan, which was not designed to elicit an incriminating response, and did not represent a Coast Guard attempt to utilize "subtle compulsion," did not constitute interrogation or its functional equivalent. The admissions by Egan to Ripley accordingly were not received in violation of Miranda and will not be suppressed.
The Hart statements while on board the VIGOROUS also were not taken in violation of Hart's Miranda rights. Hart, unlike Egan, did not request an attorney. His Sixth Amendment rights had not attached. Under Miranda, the police were not prohibited from questioning Hart. In view of the types of questions asked by Ripley, the Ripley conversation might well constitute interrogation. Even if it was interrogation, however, it did not constitute illegal interrogation. Therefore, Hart's statements will not be suppressed.
Vasquez-Castro has moved to suppress the testimony of DEA agent Lopez.Lopez interviewed Vasquez-Castro and the six other Colombian defendants on board the VIGOROUS on March 24, 1980. On the previous day, Vasquez-Castro had signed a Coast Guard form on which he requested an attorney. The express interrogation of Vasquez-Castro by Lopez violated Vasquez-Castro's Miranda rights. Accordingly, Lopez will not be permitted to testify to any statements taken from Vasquez-Castro on the Government's direct case, though his testimony will be permitted for impeachment purposes.
The defendants have moved to exclude the evidence concerning plastic baggies found in the galley and the head by Ensign McCann. The bags were neither seized nor tested. There is no evidence linking the bags to any of the defendants in particular or to the cargo of the ship. Because of the highly prejudicial nature of the baggies and the lack of probative value of the evidence in showing any illegal activity by the defendants, the evidence will not be admitted.
Vasquez-Castro alleges that the Government violated 18 U.S.C. § 3500, the Jencks Act, by failing to turn over notes made by DEA Agent Garcia prior to the taking of depositions of material witnesses and therefore that the depositions should be suppressed.
The notes of Garcia should have been disclosed prior to the deposition of the material witnesses. However, the effect of a failure to disclose is set forth in United States v. Agurs, 427 U.S. 97 (1976). In a case such as this in which the non-disclosure was inadvertent, the defendants must show that the non-disclosure was material to the cross-examination of the material witnesses. However, the notes of Garcia are consistent with the testimony of the material witnesses and thus would not have assisted the defendants in cross-examining those witnesses. The motion to suppress the depositions is denied.
Vasquez-Castro also moves to dismiss the indictment or to exclude the testimony of Agent Lopez due to his destruction of a hand written draft of a DEA 6 report. United States v. Paoli, 603 F.2d 1029 (2d Cir.), cert. denied, 100 S. Ct. 264 (1979). In Paoli, the court stated that where original notes made by a Government witness in the course of an investigation were destroyed prior to trial, the Government would bear a heavy burden of showing that the destruction did not prejudice the defendants. See United States v. Bufalino, 576 F.2d 446, 449 (2d Cir.), cert. denied, 439 U.S. 928 (1978).
No sanctions are required in this case. The information gained during the Lopez interview does not appear to be central to the Government's case, as was the evidence in Bufalino and Paoli. Moreover, Lopez's testimony concerning his interview with Vasquez-Castro and Pacheco has already been suppressed on the Government's direct case. The destruction of the rough handwritten notes has not prejudiced the defendants,and no sanctions will be imposed.
Pacheco and Vasquez-Castro seek to exclude evidence of other crimes, as discussed in a prior opinion. The Government represents that Vasquez-Castro was seized on board a vessel named the MEIRY in May 1978 approximately 100 miles east of Miami, Florida. The ship is alleged to have had bales of marijuana all over its deck and in its holds which were plainly visible and perceptible by smell. If eatablished, these facts would support an inference of knowledge and intent of Vasquez-Castro, issues that he has not conceded.
Pacheco pled guilty to illegal importation of marijuana after he was arrested off the coast of North Carolina in December, 1977 on board a vessel carrying eleven tons of marijuana. This conviction also supports an inference of knowledge and intent on the part of Pacheco.
Pacheco and Vasquez-Castro argue that they are entitled to a pre-trial ruling on the issue of admissibility of these prior acts. However, under United States v. Figueroa, No. 79-1188, slip op. at 1457 (2d Cir. February 26, 1980), it would be error to make a final ruling until after the defendants have rested. However, under the facts currently before the court, the probative value of these prior acts in demonstrating the knowledge and intent of Pacheco and Vasquez-Castro appears to outweigh their prejudicial value as to all defendants. Accordingly, if at the end of the defendants' case, knowledge and intent remain at issue as to Pacheco and Vasquez-Castro, these prior crimes will be admitted with an appropriate limiting instruction.
I adhere to my prior decision that none of the defendants is entitled to a severance.
IT IS SO ORDERED: