The opinion of the court was delivered by: POLLACK
On September 25, 1980 in the Atlantic Ocean about 200 miles east of Cape Cod the Coast Guard boarded a coastal freighter of Panamanian registry, named the "ROONDIEP", and found 30 tons of marijuana in the cargo hold. The Coast Guard seized the ship and its cargo on behalf of and on authorization from the Government of Panama, which had authorized the boarding, (the United States had also authorized the boarding), and arrested the seven persons it found aboard four United States citizens and three Britons.
Two of the arrested Americans, Scott Jube and his brother Steven, told the Coast Guard officers that they had obtained the marijuana in Colombia a few weeks earlier and had come north to deliver it. Each crew member on the ROONDIEP was to get $ 100,000 for the venture.
The four defendants herein were charged in a three count indictment with possession of a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 812, 955; attempted importation thereof into the United States in violation of 21 U.S.C. §§ 812, 952, 960(b)(2) and 963; and conspiracy to commit those substantive offenses. They challenged the boarding and seizure of the vessel by the Coast Guard on the grounds: (i) that it violated the rights of defendants under the Fourth Amendment and consequently the fruits of the seizure should therefore be suppressed; (ii), that it violated the scope of the authority of the Coast Guard under 22 U.S.C. § 2291(c)(1); and (iii) that the consent of the Panamanian government was ineffective. All other challenges to the indictment and the proceedings thereunder were expressly waived by the defendants.
A stipulation of the facts was agreed to and submitted to the Court in lieu of a scheduled hearing on these contentions and on the basis thereof after hearing argument of counsel, the Court denied the challenge by the defendants to the boarding and seizure of the vessel. The Court announced that an opinion would follow. The defendants thereupon pleaded guilty to the conspiracy and one substantive count in the indictment reserving for appeal their contentions with respect to the boarding and the seizure of the vessel. A date was fixed for sentence.
The circumstances involved
Briefly stated, on September 24, 1980 the ROONDIEP was 50 miles east of Cape Cod in the Gulf of Maine, drifting, dead in the water, with its engines off. A Coast Guard aircraft flying on routine patrol spotted the freighter, the bow of which was pointed south southeast at approximately 150 degrees. The aircraft circled the ship in order to learn the ship's name and home port and saw the names "ROONDIEP" and "PANAMA" painted on the ship's stern. The aircraft spent approximately 15 minutes circling the ship and concluded that the freighter's behavior was suspicious. As the aircraft was circling, the ship's engine was started up and the vessel got under way, heading south. After leaving the proximity of the vessel, the Coast Guard aircraft changed course and came upon the freighter again now proceeding south southeast. The aircraft was directed to maintain surveillance of the ship until arrival of a Coast Guard ship in the area. A Coast Guard cutter was ordered to intercept the ROONDIEP and keep it under surveillance which it did. The freighter acted and continued to act thereafter as if fleeing starting and speeding up and dodging from one to another course out of normal shipping lanes, and headed into shoals. During the same day and night the Coast Guard vessel kept pace with the ROONDIEP and the latter's actions were evasive and inexplicable on any reasonable basis and evasive responses to inquiries from the Coast Guard officers were given on ship to ship radio by the freighter to the Coast Guard vessel. The Coast Guard had meanwhile learned that the freighter was away from its home base and 2,000 miles away from its last known port of call, proceeding outside of normal shipping lanes and avowedly with no current destination which it knew of it was in the Atlantic Ocean, avowedly awaiting orders which would tell it where to go. It told the Coast Guard that it did not want the government vessel to come alongside or to come aboard and said it was leaving those waters and saw no need for the government to board the freighter. A check of American ports by the Coast Guard had failed to reveal any notice to any port such as that required of a foreign vessel of an intention to come into port. Further information obtained showed that the vessel had been anchored off Aruba two months earlier and had left without going into port. Ultimately, the Coast Guard decided to make an investigation of the vessel's papers, and although so advised, the ship gave no indication of consent thereto, whereupon the government vessel fired two bursts of three rounds each of 50 calibre fire over the bow of the freighter to cause it to heave to and compel it to permit the Coast Guard to come aboard for normal inspection of its papers. The freighter's captain did this under protest.
The Operational Intelligence Officer for the Coast Guard's Atlantic Area Command, Commander D. R. Herlihy, who supervised the actions of the Coast Guard cutter from his base on Governors Island in New York, had a background of knowledge that for several years numerous drug smugglers and would-be smugglers have used a technique known as the "mother ship" technique. That involves a ship loaded with large quantities of Marijuana hovering off the United States coast to which small boats come out to get the Marijuana and take it ashore. Commander Herlihy informed the Coast Guard authorities in Washington that based on the ROONDIEP's appearance, locations, actions and statements to the Coast Guard cutter following the freighter, the ROONDIEP appeared to be involved in "mother ship" drug smuggling.
The facts and circumstances gave every justification for an investigatory stop of the freighter. The Coast Guard had a reasonable suspicion that those aboard the vessel were engaged in a conspiracy to smuggle contraband into the United States and were subject to the operation of United States laws. During the surveillance of the vessel, the government had concluded arrangements with the Panamanian authorities for their consent and authority to board the freighter on behalf of the government of Panama.
After the boarding, the Coast Guard officer in charge asked to be shown the freighter's registry papers and on inquiry was told that the freighter was not carrying any cargo. The Coast Guard officer went to the ROONDIEP's cargo hold and smelled Marijuana and saw in open view hundreds of bales filled with Marijuana. When asked thereafter what was in the hold, the freighter's captain replied that the Coast Guard officer knew what was there. The arrest of all seven people found aboard the ROONDIEP followed.
The Coast Guard had a reasonable suspicion that the ROONDIEP personnel were engaged in extraterritorial criminal plans to violate the federal narcotic laws.
14 U.S.C. § 89(a) expressly authorized the Coast Guard to inquire, examine, inspect, search, seize and arrest on the high seas to prevent, detect and suppress violations of United States laws. "For such purposes, commissioned, warrant and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine ship's documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance". (Emphasis added).
The statute further provides "(w)hen from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested...."
This statute together with Panama's consent plainly authorized the Coast Guard to board the ROONDIEP and search its hold.
Section 89(a) has been interpreted by the Courts to permit the Coast Guard to stop and board any American flag vessel anywhere on the high seas, in the complete absence of suspicion of criminal activity. United States v. Warren, 578 F.2d 1058, 1064-65 (5th Cir. 1978) (en banc ); United States v. Odom, 526 F.2d 339, 341-42 (5th Cir. 1976).
The statute also allows boarding of a foreign flag vessel. United States v. Williams, 617 F.2d 1063, 1076 (5th Cir. 1978) (en banc); United States v. Dominguez, 604 F.2d 304, 308 (4th Cir.), cert. denied, 444 U.S. 1014, 100 S. Ct. 664, 62 L. Ed. 2d 644 (1979). It is well settled that an offense that occurs outside the United States, but that has an effect within the United States' sovereign territory, is subject to United States jurisdiction. United States v. Bowman, 260 U.S. 94, 98-99, 43 S. Ct. 39, 41, 67 L. Ed. 149 (1922). Thus, extraterritorial conspiracies to violate the federal narcotics laws have consistently been held to be offenses subject to the jurisdiction of the United States. United States v. Williams, 617 F.2d 1063 (5th Cir. 1980) (en banc ); United States v. Mann, 615 F.2d 668 (5th Cir. 1980); United States v. Perez-Herrera, 610 F.2d 289 (5th Cir. 1980); United States v. Postal, 589 F.2d 862 (5th Cir. 1979), cert. denied, 444 U.S. 832, 100 S. Ct. 61, 62 L. Ed. 2d 40 (1979); United States v. Egan, 501 F. Supp. 1252 (S.D.N.Y.1980).
Accordingly, "a foreign vessel on the high seas becomes subject to the operation of the laws of the United States within the meaning of § 89(a) when those aboard are engaged in a conspiracy to violate federal narcotics statutes." United States v. Williams, supra, at 1076, citing United States v. Postal, supra.
Section 89(a) authorizes the Coast Guard to board a foreign flag vessel on the high seas when it has a "reasonable suspicion" that the vessel is involved in smuggling contraband into the United States:
Thus, if the Coast Guard has a reasonable suspicion that a foreign vessel in international waters is engaged in smuggling, the Coast Guard must necessarily have reasonable grounds for suspecting the vessel is subject to the operation of American laws; section 89(a) would, therefore, permit the seizure of the vessel.
Williams, supra. 617 F.2d at 1076.
In view of the Coast Guard's reasonable suspicions, its boarding of the ROONDIEP was a constitutionally permissible investigatory stop. In an unbroken line of authority in land cases since Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), law enforcement officers are given "the power, indeed the obligation, to detain a person temporarily for the purpose of interrogating him if the officer reasonably suspects that the detainee has ...