Escolar Documentos
Profissional Documentos
Cultura Documentos
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
_____________________
__________________
appellee.
____________________
September 29, 1993
____________________
AMENDED OPINION
____________________
TORRUELLA,
validity
Circuit Judge.
_____________
of a search of
a vessel.
This
appeal involves
the
For the
government.
Rojano-Rangel
forty-three
"FL
Appellants
and
foot
Cardona-Sandoval
G mez-Olarte (the
crew),1
sports-fisherman, Florida
(the
were
captain),
on board
registration Number
St. Maarten.
On
1990,
they were
destroyer.
of the
intercepted by
officials aboard
the U.S.S.
BIDDLE were
the
was charged
hundred feet
program.
Coast
to conduct
the
standard
procedure,
the
U.S.S.
BIDDLE
EM in
____________________
1
2
The parties stipulated that the vessel was
jurisdiction of the United States.
subject to
the
3
Pursuant to 10 U.S.C.
379(a) (Supp. 1992), Coast Guard
officials may be assigned to duty aboard Navy vessels to perform
drug interdiction. See United States v. Sandoval, 770 F. Supp.
___ _____________
________
762, 767 (D.P.R. 1991).
-3-
both
U.S.S.
BIDDLE then
conduct
dispatched
document and
a six-member
responded.
The
boarding party
safety inspection.
The crew
to
did not
Two members of the boarding party guarded the captain and crew at
the
stern of
compliance
the
vessel
while
four
others
checked
They also
it
for
conducted a so-
not
smuggling.
compartmentalized
secretly
for
During
the
Armas owned the vessel and that appellants were employed to bring
the
boat
from
Colombia
to
St.
Maarten.
The
registration
completion,
leading the
certain
areas
that
appeared suspicious.
The
areas
thicker than
necessary, according
to the petty
officer's prior
experience; and a
large water
tank.
Spake
indicated that
the
then
cited
vessel
master
Cardona-Sandoval
discovered.
with
minor
rather
than
the original
aboard
the U.S.S.
--
BIDDLE,
and conferred
Lieutenant George
with
his superior
Boyle.
The
two
debriefing.
recent
The team
reconstruction had
appellants
sleeping cabins
done on
the
vessel; (2)
were in disarray,
(1) that
that
which suggested to
the Coast
Guard that the crew slept on the deck; (4) that the boat had been
painted recently and
United States
the paint
(5) that
the
In
addition,
one
member of
the party
had
determined
that
adequately
the
the
boarding
space
become ill
behind
continue the
party
the
during the
had
failed
medicine
Lt. Boyle
to
cabinet
search
and
the
EM to
____________________
4
learned:
(1) that
indicated
that
the
the
captain
marijuana in
1984; (2)
"Wicho"
was on
hidden
and
compartments
El Paso
for
had been
that FL
the EPIC
Intelligence
convicted
8304 EM was
lookout
smuggling;
of
smuggling
also known
list as
and
Center ("EPIC")
(3)
as the
possibly having
that
EPIC
had
Because
of February 26,
1990, a Navy
aircraft
before.
at sea had
change in course
was
FL
required by
search,
the
initially
the need
search actually
purposed.
to
In
complete the
conducted
fact,
the
was
space accountability
much broader
second
search
than
lasted
Coast Guard
the seas
take the vessel and its crew to the Roosevelt Roads Naval Base at
Ceiba,
Appellants
were
transferred
safety,
Puerto
and Coast
Rico.
to
the
U.S.S. BIDDLE,
Guard personnel
The district
piloted FL
February
allegedly
27,
while
for
8304 EM
their
back to
Id. at 766.
___
in transit
to
Puerto
Rico,
as the
the vessel
water tank
to shore
(which was
because certain
welded to
spaces,
the ribs
of the
February 28,
the
vessel arrived
in Puerto
Rico.
Navy divers and a narcotics search dog were brought to search the
vessel,
were
the
the gasoline
emptied.
Notwithstanding
transferred
custody of
the FL
8304
EM to
Lt. J.G.
Coast Guard to
of narcotics.
raised to
in earnest.
The poor
suggested that it
spaces, prompted
the water.
the
pulled
discovered a
-7-
grinder
which
could
be used
fiberglass
to
cut
fiberglass,
as well
as
Nevertheless, by the
end of
work
had
been
the day no
done
recently.
illicit substances
had
That
give up.
The search
continued
into two
beams that ran the length of the vessel and upon which the engine
was mounted.
team
even more
time to
could be accessed.
there.
find the
Yet it
the cocaine
the
U.S.S. BIDDLE
Roads Naval
Station on
and
FL 8304
February 28,
EM
arrived at
appellants were
detained at the base for six hours under guard, during which time
they received no
food.
Subsequently,
the airport
in San Juan
to
hours
in a
locked room.
Thereafter
they were
handcuffed and
in San Juan, where they were placed in a large locked room, which
resembled a cage.
P.M. on March
were
formally arrested.
After
explained to
their
arrest,
appellant
Cardona-Sandoval
-8-
that
he
had been
hired by
Roberto
de Armas
in Barranquilla,
Similarly,
hired by
During
Cardona-Sandoval
the
incorrectly
trial,
stated
the
the
as a
crew member
prosecution
and
compensation
in
for 60,000
several
dollars,
pesos.
witnesses
when
they
stipulated
reference to
at
a later
United States
point
dollars was
in
the
trial that
incorrect and
any
that the
at trial that the exchange rate for Colombian pesos was very low,
but did
not
American
dollars.
testimony
their
testify as
on
to
the value
Appellants attempted
the exchange
proffer,
of the
finding
rate but
the
to
compensation
introduce
the district
witness
they
in
expert
court denied
attempted
to
use
challenge
their motion
to suppress
insufficient
contend
their
that the
convictions
several
evidence seized
Alternatively,
to support
on
the
district court
of
their Fourth
the evidence
guilty verdicts.
They also
committed reversible
error by
-9-
newspaper
deliberations, and
by
articles
refusing
to
published
admit the
of two
during
testimony
the
of
defense expert
witness
as
to the
exchange
rate
between
the
court denied
the vessel,
the motion to
holding that
suppress the
(1) the
cocaine
seized was not the fruit of an illegal arrest; (2) the appellants
did not have standing to challenge the search and seizure because
they
in the structural
hull of the vessel; and (3) the Coast Guard had probable cause to
bring
the ship
to
Roosevelt Roads
for
a destructive
with the
district court's
at 766-67.
search.
Although we
conclusion
that appellants
the
fruit
that
illegal
arrest.
cannot be
We
focus,
to
Fourth Amendment
be secure
in
guarantees "[t]he
their
persons,
right
of the
houses,
papers,
and seizures
. .
and
. ."5
____________________
5
An
individual's
unreasonable
"manifested
Fourth
searches
Amendment
is implicated
a subjective
right
when
expectation of
v.
Greenwood,
_________
v. Ortega,
______
486
U.S.
480 U.S.
to
he
be
free
or she
privacy" in
(1)
from
has
the place
objectively reasonable."
35,
709, 715
39 (1988);
see also
_________
(1980); Katz
____
v. United
______
demonstrate a "subjective
expectation of privacy,"
garbage in
"subjective expectation
publicly
v. Ciraolo,
_______
486 U.S. at
"clearly" manifests
discarded); California
__________
activities
476 U.S.
207, 211
of
privacy"
from
side
walk traffic).
But
___
cf.
___
is "no
talisman
that determines
in all
O'Connor, 480
________
U.S. at 715.
vary
according to
context.
v.
Illinois, 439
________
The
accept as
reasonableness of
cases
for a search
While "arcane
distinctions
the inquiry,
U.S. 128,
143
(1978), we
do consider
-11-
ownership,
premises,
possession,
or
control,
legitimate
ability to
presence
on
exclude
the
from
premises
the
when
Melucci, 888
_______
F.2d 200,
Cir. 1989);
addition,
because of
the "circumstances
maritime
setting," we
have recognized
diminished
202 (1st
In
and exigencies
of the
that individuals
have a
rights are
(1969).
U.S. 1135
personal rights
vicariously asserted."
174
which .
. .
may
not be
of
privacy:
must be
measuring the
the
has a
into two
legitimacy
captain and
Cardona-Sandoval,
divided
the
of
crew
his
associated
unauthorized
legal
entry
to
The
cognizable expectation of
the
of
captain,
privacy from
This
to
particular
their expectation
members.
groups for
exclude
places
on
interlopers
from
board,
the
and
-12-
as the
See, e.g.,
___ ____
Petty
_____
Ray Geophysical, 783 F.2d 577, 582 (5th Cir. 1986); United States
_______________
_____________
v. Aikens, 685 F. Supp. 732, 736 (D. Hawaii 1988), rev'd on other
______
______________
grounds,
_______
25:1 et
__
broad powers of
search,
expectation
of
conclude
and
Cardona-
the vessel.
his
It is
for a
subjective
appropriate to
his vessel
master of vessel).
therefore
privacy in
(three
of which
on
and
government destroyed
the
vessel, Cardona-Sandoval
challenge
Marrero,
_______
the searches
in
cage while
and
reasonable.
a barred
constituted
destructive search),
to recognize as
detained in
land
a Fourth
this case.
the
as master of
Amendment right
to
v.
the crew
members' expectation
of
privacy is
v.
possess
Arra,
____
areas of a
(questioning, without
an expectation
630
F.2d
A number of
836,
of
841
privacy.
n.6
(1st
members
See
___
United
______
Cir.
1980)
-13-
no privacy
928 F.2d
interest in cargo
private areas
112
observes
perception)
within
v. Thompson,
________
United
______
privacy in a
in the course of a
view
(or
detects
by
sensory
in
which crew
members
privacy interest.
could have
Thompson,
________
reasonable or
legitimate
This, of course,
and freighters,
case at
hand.
major vessel,
a court
must be
distinguished from
the
areas, treating
crew member.
For example,
possess
objectionable
the short
hand designation
of a
reasonable
expectation
of
privacy,
is
not
the size of the vessel and the de facto limitation of space which
the crew member can claim as private.
But
our
case
involves
entirely
different
factual
-14-
circumstances.
fishing.
The
to
of the vessel.
and
crew
each
apartment, the
individually,
possessed
respect to all individuals not living within the unit and sharing
the
vessel there
are no "common
areas" in
the
same sense that the cargo hold or dining room on a large boat are
public
or common.
The
the
We cannot
that are
public or
common.
In sum,
we think
that the
crewmen in this case, like the captain, are entitled to raise the
question whether the search of the ship was unreasonable.6
be
read
decline
F.2d
to dictate
a different
to follow them.
632,
approach
636
that
according to
result
See, e.g.,
___ ____
for small
vessels, we
(11th
Cir.
1985)
(suggesting
confers
or
rejects
right
methodological
to
contest
search
within a vessel,
F.2d 1267,
1271
(5th Cir.
1980)
(ice hold
common
area;
course,
is
subject to
the
the
still retains
footlocker.
reasonable
crew's
Coast Guard'
expectations
authority
intrusively upon
inconsistent with
captain and
reasonable
privacy
Rather,
behavior
it
by
means
But this
interests that
that
officials,
go beyond
in
to conduct
power to search
suspicion.
recognizing that
is not
the captain,
the wallet
determining
there is
of
what
latitude
or
is
that
of sea
But that
Guard's authority
under 14 U.S.C.
89(a)7
____________________
7
14 U.S.C.
to
broad.
We
inspections
have held
are
that administrative
permissible
suspicion of wrongdoing."
533-34
935,
even "without
particularized
prohibits
unreasonable
any
document
Amendment
1,
safety and
(1968),
conducted "was
and
searches.
on "whether the . . .
second,
on
whether
The
the
search
392 U.S.
actually
to the circumstances
Id.; see
___ ___
8 The "high seas" are those waters "beyond the territorial seas
of the U.S. and beyond the territorial seas of any foreign
nation." 21 U.S.C.
955b(b).
-17-
Because
of the
special
circumstances
implicated
by
diminished expectation
of privacy.
Green,
_____
671 F.2d
at 53;
______
Guard possess "reasonable and articulable grounds for
that
the vessel
or
those on
board
are engaging
in
criminal
checking
(citing
Williams,
________
"reasonable
obtained
at 534.
areas
Both the
pursuant to
reasonably
Therefore,
be
safety
area to
1084).
formed
on
the basis
and document
the
the
purpose
suspicion
of
facts
search
Elkins,
______
774
and a
be confined
of the
only
once
may drill
safety inspection,
suspicion, must
incident to
necessary
inspection, and
inspecting officers
document and
reasonable
F.2d at 53
The
reasonable
limited intrusion.
Green, 671
_____
at 1076,
suspicion exists
into a suspicious
search
F.2d
suspicion" may
during the
reasonable
F.2d
617
suspecting
to
inspection.
authorizes
Neither
See
___
authority
Hilton, 619
______
provides carte
F.2d
at
132
blanche
to destroy
(discussing scope
of
relative intrusiveness of
officials.
Cf.
___
We recognize that
basis for
inspection
probable
a more
Villamonte M rquez,
__________________
by allowing each
intrusive search
462 U.S.
at
inspection to provide
-- document
and safety
determination
--
we
risk
manipulation
by
intrusive searches.
justifies the
respect to standing.
contraband can
justify
We think
deterrent supplied by
our holding
a full,
that this
destructive search.
Thus,
if a
document and
yields
justified.
Cf. Mincey
___ ______
("warrantless
exigencies
nothing, then
search
a destructive
v. Arizona,
_______
must
which justify
areas, and a
be
437
'strictly
its initiation'")
search of those
search might
U.S. 385,
not be
393 (1978)
circumscribed by
the
(citation omitted).
probable cause.
636-37; United States v. Andreu, 715 F.2d 1497 (11th Cir. 1983).
_____________
______
The
illustration
facts
of
the
of
the
present
principles
case
stated
provide
above.
graphic
The
initial
14 U.S.C.
89(a).
Petty Officer
-19-
Spake
original
he
his
received
alleged
been
He felt that
owners.
58).
debriefing.
regarding the
spaces.
(Suppression Hearing
Matters changed,
Apparently,
vessel,
EPIC information
the captain,
and
accounted for
adequate
the two
document and
safety inspection.
however,
answers
to
these questions
casts
The absence
doubt
on
the
rationalizing
is precisely
what makes
If we
presently is.
But in
Guard, and on what basis the Coast Guard justified their actions.
The government's brief suffers
For
example,
fiberglass
which added
vessel
to
indicated
it suggests
that
the
boarding party
on the deck
the second
But
Lt. Gatlin's
our
boarding
discovered
of the vessel,
and bringing
investigation of
on-land
_______
problem.
inspection
the
the record
team did
not
-20-
March 1.
We cannot
stress enough
when facts are discovered and when the inferences and conclusions
are
drawn therefrom.
finding of guilt
becomes irrelevant if
the
a constitutional manner.
(1963).
Notwithstanding the abuse, we
boarding
and
five-hour
search
was
justified
by
reasonable
inspection
of many structural
suspicious
shower area
and water
evidence
held.
any legally
At that
a probable cause
point, all
country.
tank), dissolved
Such
the boat
evidence fails to
In the absence
of probable
a result
of that
excessively intrusive
Wong
____
Because
we
find
that
all
the
appellants
had
search
of
the
vessel, and
violated
appellants'
Fourth Amendment
must
reversed.
We
be
need
because
rights,
not consider
the
search
the convictions
appellants'
other
arguments.
Appellants' convictions are reversed.
________
Dissent Follows
in part).
in part).
Although the
reasonable
inspection,
limits
believe
the
inhere
in a
safety
defendant crew
and
members
document
failed
to
"a 'search'
reasonable
is
infringed."
Soldal
______
v.
Cook County,
_____________
United States v.
_____________
Jacobsen,
________
Bouffard,
________
Soule,
_____
908 F.2d
1032, 1034
(1st
the individual
United States v.
_____________
Cir. 1990).
The burden
of
Rawlings
________
v. Kentucky,
________
448 U.S. 98, 104 (1980); Bouffard, 917 F.2d at 675 (quoting Rakas
________
_____
v. Illinois, 439
________
U.S. 128,
Accordingly,
for
"the capacity to
-22-
the
person who
claims [its]
protection
. . . upon
. .
has a
Rakas,
_____
v. Green______
U.S. at 104-105
93 (1980); see
___
threshold
_________
. . .
requirement,
___________
and
___
analysis cannot
________ ______
proceed
_______
(footnote
omitted).9nn
In the
possessory or
proprietary interest
no crew
member asserts
in the vessel
itself,10 the
social custom"
expectation
Minnesota
_________
First, we
of privacy
v.
on
Olson, 495
_____
the part
U.S.
91,
is any
"long-
substantiate a
reasonable
of the
See, e.g.,
___ ____
crew.
98-99 (1990)
(houseguest's
I do
court's "probable
cause"
social custom," we inquire whether the crew members had the right
to exclude intruders from
be had
to the
access
could
States
______
property
through crew's
______
Lopez,
_____
761 F.2d
Compare United
_______ ______
seized.
which on-board
private
_______
632, 635-36
access to hidden
quarters), with
________
____
(11th Cir.
v.
1985) (recognizing
no
gained
"common area"
States v.
______
(recognizing
no
Fourth Amendment
on deck
authorities
of ship);
compart-
United States
_____________
hidden
United
______
Cir. 1985)
in hidden
compartment
the vessel in
the present
had
been hidden
structural
seized from
in
a hollowed-out
compartment
within a
Unbeknownst to
the
ble
through
the engine
room.11
See,
e.g., United
States v.
___
Marsh, 747 F.2d
_____
7, 11 (1st
____
______________
room as
"common
Of
____________________
11
The secret compartment seems to have been situated so as to
be accessible by means of a concealed "entrance way." Once the
"entrance way" was unblocked, the packages of cocaine could be
pulled from the hollowed-out beam by means of a string.
-24-
inspection,
the crew
("areas subject
to a safety
of a
privacy"); see
___
46, 53 (1st
vessel would
have little
if any
expectation of
Cir.), cert.
_____
1135 (1982)
(noting
diminished
expectation of privacy
on maritime vessels).
recognition
authority"),
1990); see
___
25:1 et
__
of a
have an
It is
in
736
rev'd on
_____ __
expectation which
other
_____
grounds, 946
_______
generally 1 Martin
_________
J. Norris,
emerges from
F.2d
608 (9th
such
Cir.
supp.) (discussing
scope of
asserted
"reasonable
expectation of
captain,
its
contents may
have
privacy"
on
that of
the
been entirely
compatible
with the
captain's interests.12
____________________
12
As the Court has stated time and again, the Fourth Amendment
protects individual rights only, and no defendant may piggyback
__________
on a codefendant's expectation of privacy. See United States v.
___ _____________
Padilla, 113 S. Ct. ___, 61 U.S.L.W. 4458, 4458 (May 3, 1993)
_______
(rejecting Ninth Circuit view that "a co-conspirator obtains a
-25-
Turning to
ralty
structural beam.
fiduciary representative
of the
supra,
_____
crew's authority
master's
at
from common
14:8.
The
authority, and
vessel owner.
exercisable
See 1
___
Norris,
is derivative
__________
pursuant
to the
of the
master's
14:8, 25:16.
As
crew must
obey.
See
___
Southern
________
cannot be
divided.
to the
of privacy"
majority's suggestion,
on
the part
of
the crew
a "reasonable
is
neither
____________________
at 675-76 & n.6 (tracing the successive demise of various theories of Fourth Amendment "standing," including "automatic,"
"derivative," and "target theory" standing).
13
An automo-
passengers,
privacy"
even in the
no "reasonable
readily accessible
expectation of
contents of
the glove
e.g.,
____
at 148-49;
Rakas, 439
_____
U.S.
see
___
See,
___
v.
on
but not
least
importantly, these
the size
governing law,
and intimate
therefore, the
expectation of privacy
nature of
the vessel.
record is wholly
Under
insufficient to
U.S. at
can be said is
143.
defendant
on a "legiti-
Rakas, 439
_____
same right to
redress the
____________________
14 Since the government directly challenged defendants' "standing" below, a remand to permit the district court to consider the
matter further would seem to be precluded.
Compare Combs v.
_______ _____
United States, 408 U.S. 224, 227-28 (1972) (Per Curiam) (direct_____________
ing remand where prosecutor had not challenged defendant's
"standing"), with Rakas, 439 U.S. at 130-31 n.1 (refusing to
____ _____
remand where prosecutor had challenged "standing" at suppression
hearing). See also Bouffard, 917 F.2d at 677-78.
___ ____ ________
-27-
are superficially
compelling.
captain, but
blush.
not the
appropriate Fourth
crew member
knowl-
unfair at
Thus,
Amendment inquiry:
whether
first
context of the
each individual
of privacy in
evidence seized.
is not
designed to
ensure "equitable"
safeguard
expectations of
recognize
as reasonable.15
the
"the
of the
the
court says,
As the
exclusionary rule
privacy that
To
that end,
is restricted
society is
prepared to
the right
to individuals
to
to invoke
who demon-
See
___
the suppres-
crime
or trial
'windfall
to which
they are
group is
not justly
to bestow
upon them a
entitled.'") (citation
omitted).
-29-