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July 8, 1980


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, *fn1" 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. *fn3" 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, ...

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