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Case Summary — United States v. Terry Wayne Hilton a/k/a Wayne Milton, William J. Baggett and Andrew N. Stover

Factual and Procedural Background

On May 23, 1978 the United States Coast Guard cutter Duane, cruising on regular patrol in the Gulf of Maine, made radar contact and later visual contact with the 327-foot sailing vessel Southern Belle approximately 20 miles from the U.S. coast on the high seas. The Duane's commander dispatched a five-man boarding party to conduct a safety and documentation inspection. Three men aboard the Southern Belle — later identified as defendants Terry Wayne Hilton, William J. Baggett and Andrew N. Stover — assisted the boarding and presented a packet of documents asserting to be registration papers. The boarding officers could not determine the vessel's valid registration from the papers and entered the enclosed portion (engine room and living compartment) to inspect the main beam number and conduct a safety check.

While below and from the deck, officers observed burlap bags partially concealed by clothing and blankets which they suspected contained marijuana; they also detected the odor of marijuana. A field test of a sample was positive for marijuana. The Coast Guard arrested the three men, seized the vessel and ultimately found 234 bales weighing 6 1/4 tons aboard. The Duane, under direction from the Coast Guard Atlantic Regional Office, conducted a subsequent full search for documents, discovered a locked briefcase and a camera with six film canisters. The briefcase was opened aboard the Duane; the film was developed and items were admitted into evidence.

The land-based DEA investigation resulted in 13 other arrests; all 16 were charged with conspiracy to possess marijuana with intent to distribute. The three defendants were tried by a jury, convicted, and sentenced. They moved to suppress evidence and later for judgment of acquittal; both motions were denied. The defendants appealed challenging the constitutionality of the boarding/search, the admission of seized evidence (including items from the briefcase and film), and the sufficiency of evidence without that material. This opinion resolves that appeal.

Legal Issues Presented

  1. Whether the warrantless boarding and subsequent search of an American-flag vessel on the high seas by Coast Guard officers — conducted under 14 U.S.C. § 89(a) as a safety and documentation inspection — was constitutional in the absence of individualized suspicion or probable cause.
  2. Whether the evidence seized during the boarding and the evidence removed from a locked briefcase and film containers found aboard the vessel were properly admitted at trial.
  3. Whether, absent the challenged seized material, the remaining evidence was sufficient to sustain the defendants' convictions for conspiracy to possess marijuana with intent to distribute.

Arguments of the Parties

Appellants' (Defendants') Arguments

  • They challenged the constitutionality of random, warrantless Coast Guard boardings, arguing such stops cannot be justified under the administrative inspection exception in light of Marshall v. Barlow's, Inc., which held administrative inspections of businesses required an administrative warrant.
  • They argued that the authority to board and inspect under 14 U.S.C. § 89(a) conflicts with Delaware v. Prouse, which held random, warrantless automobile stops to check licenses and registration are impermissible, asserting that unfettered discretion likewise exists in random Coast Guard boardings.
  • They sought suppression of the evidence seized during the boarding, including materials taken from the locked briefcase and developed film, and argued that without that material the evidence was insufficient to support conviction.

Appellee's (Government's) Arguments

  • The Coast Guard acted pursuant to its statutory authority under 14 U.S.C. § 89(a) to make inquiries, examinations, inspections and searches on the high seas for prevention, detection and suppression of violations of U.S. law, and such safety and document inspections may be conducted without a warrant or individualized suspicion.
  • The officers, while conducting a lawful safety and document inspection, observed facts (burlap bales, odor of marijuana) providing probable cause to search for and seize contraband and to arrest those aboard.
  • With respect to the briefcase, camera and film canisters, the government contended (as noted by the district court) that their opening and use were justified (the opinion notes the government's position that the opening was justified under exigent circumstances), but the appellate court resolved the case without deciding that justification because it found defendants lacked standing to contest those particular items.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court in This Opinion
United States v. Warren, 578 F.2d 1058 (5th Cir. 1978) Construal that 14 U.S.C. § 89(a) permits stops and boardings for safety/document inspections without a warrant but limits such stops (absent probable cause) to inspections; and that upon probable cause seizure and arrest are authorized. The court relied on Warren as authority construing § 89(a) to permit safety/document inspections without particularized suspicion and as support that upon probable cause the Coast Guard may seize vessel and contents and arrest those aboard.
United States v. Hillstrom, 533 F.2d 209 (5th Cir. 1976) (per curiam) Support for the view that § 89(a) permits safety/document inspections. Cited as additional authority construing the statute to allow such inspections without a warrant.
United States v. Odom, 526 F.2d 339 (5th Cir. 1976) Support for limited authority to stop and board vessels for safety/document inspection. Used as another circuit backing for the limited inspection authority under § 89(a).
United States v. Zurosky, 614 F.2d 779 (1st Cir. 1979) Constructions of a similar customs search statute (19 U.S.C. § 1581) and the concept that ordinary vessels carry a reduced expectation of privacy. Cited to support the proposition that vessels have a lesser expectation of privacy and to analogize customs authority to Coast Guard inspections on high seas.
United States v. Freeman, 579 F.2d 942 (5th Cir. 1978) Analogous treatment of customs/inspection authority and its historical scope. Referenced as further authority consistent with the limited-inspection construction of § 89(a).
United States v. Miller, 589 F.2d 1117 (1st Cir. 1978) Statement (dictum) that the statute, as construed, is constitutional; also cited for reduced expectation of privacy on vessels. The court relied on Miller's dictum to support constitutionality of the limited inspection practice and the reduced privacy expectation for vessels.
United States v. One (1) 43 Foot Sailing Vessel, 538 F.2d 694 (5th Cir. 1976); aff'g 405 F. Supp. 879 (S.D.Fla. 1975) Fifth Circuit decision taking the position that the statutory practice is constitutional; district court discussion of safety/operation regulation of flag vessels. Used as circuit-level support for the constitutionality of stopping American-flag vessels for inspection and for international-law/regulatory context.
United States v. Odneal, 565 F.2d 598 (9th Cir. 1977) Upheld stopping of a vessel for a safety and document inspection where a safety hazard was observed; also cited for probable cause from observations and odor. Cited both to support the lawfulness of safety/document stops and to justify that, given the officers' observations here, probable cause existed to search the burlap bales for contraband.
United States v. Piner, 608 F.2d 358 (9th Cir. 1979) Discussion limiting nighttime safety inspections (analogous limits on safety inspections). Noted as a related limitation in a different context; used to show the courts recognize contextual limits on safety inspections.
Coolidge v. New Hampshire, 403 U.S. 443 (1971) Fourth Amendment principles and exceptions to warrant requirement; cited for comparison. Used in comparison to illustrate that the Coast Guard boarding exception is an exception to the usual rule that warrantless searches are unreasonable, analogous to other exceptions discussed in Coolidge.
Katz v. United States, 389 U.S. 347 (1967) Expectation of privacy analysis under the Fourth Amendment. Cited to support the court's point that vessels carry a lesser expectation of privacy than homes or offices.
Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970) Administrative-inspection exception (industries long subject to close supervision and inspection). Referenced to analogize ocean-going vessels (subject to pervasive regulation) to industries where administrative inspection exceptions have been recognized.
United States v. Biswell, 406 U.S. 311 (1972) Administrative inspection of heavily regulated activities (firearms). Cited to show analogy between traditionally regulated industries and regulation of vessels.
Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) Administrative inspections of businesses required an administrative warrant (although a warrant could be issued without traditional probable cause). Discussed by defendants as limiting administrative inspection exception; court explained Barlow's does not control Coast Guard boardings on the high seas because the contexts differ.
Delaware v. Prouse, 440 U.S. 648 (1979) Random, warrantless stops of automobiles to check licenses and registration are impermissible; limits on unconstrained discretion in stops. Defendants relied on Prouse; the court distinguished Prouse as inapplicable because high seas boardings have different context and fewer alternatives, and quoted Justice Blackmun's concurrence to emphasize limits of Prouse's reach.
United States v. Whitmire, 595 F.2d 1303 (5th Cir. 1979) Discussion of exceptions and comparisons; cited in relation to categorizing the boarding exception. Used as support for viewing the Coast Guard boarding exception as comparably grounded in a confluence of established exceptions.
United States v. Ramsey, 431 U.S. 606 Historical support for broad customs authority and its longstanding pedigree. Cited to support the historical roots of broad authority to stop and board in customs contexts and to provide historical context for vessel inspections.
Boyd v. United States, 116 U.S. 616 (1886) Historic treatment of search and seizure principles; cited in historical discussion of customs authority. Referenced to provide historical background for broad inspection authority historically exercised in customs contexts.
Rakas v. Illinois, 439 U.S. 128 (1978) Standing to contest searches: requires assertion of a proprietary or possessory interest in the items or area searched. The court applied Rakas to conclude the defendants lacked standing to challenge the search/opening of the briefcase, camera and film because they did not assert any proprietary or possessory interest in those items at the time of seizure or at the suppression hearing.
United States v. Chadwick, 433 U.S. 1 (1977) Principles relating to searches of luggage and the exigent-circumstances doctrine (used for comparison). The court noted the government's argument invoking exigent circumstances but explicitly declined to decide whether exigent circumstances justified opening the briefcase because the defendants lacked standing under Rakas.

Court's Reasoning and Analysis

The following recounts the court's step-by-step legal analysis as stated in the opinion.

  1. The court began with the governing statute, 14 U.S.C. § 89(a), which authorizes the Coast Guard to perform inquiries, examinations, inspections, searches, seizures and arrests on the high seas for enforcement of U.S. laws, including going aboard vessels to examine documents and to inspect vessels for safety and compliance.
  2. The court recognized that while § 89(a)'s language is broad, prior authorities construe the statute as limiting stops — absent probable cause — to the necessary task of safety and document inspections. A more extensive search requires either consent or probable cause.
  3. On Fourth Amendment analysis the court held that limited safety and document inspections of American-flag vessels on the high seas — even without a warrant or individualized suspicion — are reasonable. The court supported this by noting (as provided in the opinion):
    • Vessels carry a lesser expectation of privacy than homes or offices;
    • Vessels are inherently mobile and operate on international waters, making identification and safety regulation of flag vessels an important governmental interest;
    • International and maritime law and the longstanding historical practice of customs/inspection authority support regulatory stops and inspections of vessels.
    The court analogized the boarding exception to a confluence of recognized exceptions (border search, administrative inspection of regulated industries, automobile exception), while emphasizing that the exception only permits searches reasonably incident to safety and document inspections and does not authorize general exploratory searches of private books, papers, or unrelated areas.
  4. The court addressed and rejected the defendants' analogies to administrative inspection cases (Marshall v. Barlow's) and automobile-stop cases (Delaware v. Prouse). It explained that procedures reasonable for domestic commercial establishments are not necessarily reasonable for Coast Guard boardings on the high seas and that the practical inability to use less intrusive alternatives (e.g., roadblocks) in the maritime environment makes discretionary selection of vessels virtually unavoidable.
  5. Applying these principles to the facts, the court concluded the initial boarding and the officers' entry into enclosed portions of the vessel to check the main beam number and perform an engine-room safety inspection were lawful as safety/document inspections. While below, the officers observed burlap bags partially concealed and, from the deck, observed the same. Howard also noticed the odor of marijuana. The court found that these observations provided probable cause to search the contents of the bags for contraband being imported into the United States, thereby justifying the seizure of the contraband and the arrests under § 89(a).
  6. Regarding the locked briefcase, camera and film canisters seized aboard and later opened aboard the Duane, the court concluded that the defendants lacked "standing" to contest those searches because they did not assert any proprietary or possessory interest in the items at the time of seizure or at the suppression hearing. Because of this lack of standing (citing Rakas), the court explicitly declined to decide whether the opening of the briefcase and film was justified by exigent circumstances and therefore did not rule on that substantive question.
  7. Finally, because the court found no basis to hold any of the seized material inadmissible (and because the officers had probable cause to seize the marijuana), the court held that the defendants' claim that, absent the challenged materials, the evidence would be insufficient failed. Accordingly, the district court did not err in denying motions for judgment of acquittal.

Holding and Implications

AFFIRMED.

Holding (core ruling): The First Circuit affirmed the convictions. It held that (1) the Coast Guard's practice of stopping American-flag vessels on the high seas for safety and document inspections, without a warrant or individualized suspicion, is constitutionally permissible as a limited exception to the usual warrant requirement; (2) once officers aboard observed facts giving rise to probable cause (visible burlap bales and the odor of marijuana), they were justified in searching and seizing contraband and arresting those aboard under 14 U.S.C. § 89(a); and (3) the three defendants lacked standing to contest the search of a briefcase, camera and film canisters because they did not assert any proprietary or possessory interest in those items.

Implications (direct effects on the parties and doctrinal notes drawn from the opinion): The defendants' convictions for conspiracy to possess marijuana with intent to distribute were affirmed and their motions for acquittal and suppression were denied. Doctrinally, the opinion articulates that safety and document inspections of American vessels on the high seas are a reasonable Fourth Amendment exception in the special maritime context, but that such an exception is limited in scope and does not authorize exploratory searches unrelated to inspection purposes; broader searches require consent or probable cause. The court also applied the standing rule of Rakas to bar the defendants from challenging searches of property in which they did not claim an ownership or possessory interest. The court expressly declined to decide whether exigent circumstances justified opening the briefcase because of the standing ruling.

This summary is based exclusively on the language and holdings contained in the provided opinion.

UNITED STATES OF AMERICA, APPELLEE, v. TERRY WAYNE HILTON A/K/A WAYNE MILTON, WILLIAM J. BAGGETT AND ANDREW N. STOVER, DEFENDANTS, APPELLANTS.

LEVIN H. CAMPBELL, Circuit Judge.

Defendants appeal their convictions in the district court on one count of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846. The principal issue raised on this appeal is the constitutionality of the boarding and subsequent search of the sailing vessel Southern Belle on the high seas by officers of the United States Coast Guard. Defendants challenge the introduction at their trial of evidence seized during this search and of evidence removed from a locked briefcase and film containers found aboard; they also claim that without such material there was insufficient evidence to sustain their convictions.

The Facts

The circumstances of the boarding and search of the Southern Belle are detailed in full in the opinion of the district court on defendants' motion to suppress, 469 F. Supp. 94 (D.Me. 1979). For present purposes, we need only state the following. On May 23, 1978, a clear, calm day, the 327-foot Coast Guard cutter Duane was cruising on regular patrol in the Gulf of Maine. At about 1:00 p.m., having boarded three fishing vessels earlier in the day for routine inspections, the Duane made radar contact with a fourth vessel later identified as the Southern Belle. This contact occurred on the high seas, approximately 20 miles from the coast of the United States. While the Duane moved closer for a visual sighting, the crew plotted that the Southern Belle was proceeding on a steady course of 20 ° north, indicating an expected landfall in the vicinity of Mt. Desert Island, Maine.

About one hour after initial radar contact, the Duane sighted the vessel, the stern of which bore the inscription: " Southern Belle, Wilmington, North Carolina." After further observation, the commander of the Duane decided to send a boarding party to conduct a safety and documentation inspection of the Southern Belle. At the suppression hearing, Cmdr. Leo N. Schowengerdt testified that the factors he considered in making this decision included: the absence of state registration numbers on the bow of the vessel, its geographical position, the distance of the ship from its home port at that time of year, the appearance of the persons on deck who were wearing foul whether gear on a clear day, and the ship's course toward the coast of Maine.

A five-man boarding party consisting of two officers and a three-man crew were dispatched in a motor launch to board the Southern Belle. The boarding took place at about 3:30 p.m. approximately 20 miles from the coast. The three men on board the Southern Belle — later identified as defendants Terry Wayne Hilton, William J. Baggett and Andrew N. Stover — assisted the boarding party by shortening sail and taking on lines from the launch. Upon inquiry, Baggett identified himself as the ship's master and produced a large packet of documents purporting to be the ship's registration papers. Lieutenant Paul Howard and Ensign Robert Watson were unable to determine from these papers whether the vessel was properly registered. Baggett explained that the three men aboard had been hired by one Wayne Milton, the vessel's owner, to sail the vessel to Bar Harbor, Maine, and inquired how long it would take the vessel to reach Bar Harbor.

Howard and Watson could find neither a valid, current state registration (which would also have required the vessel to show an identification number on the bow) or a valid federal registration. Suspecting that the vessel might be stolen, they decided to check the vessel's main beam number to see if the number engraved on the beam corresponded to the official registration number on the documents Baggett had presented. Lieutenant Howard asked where the engine room was, whereupon Baggett escorted him through a hatch below the cockpit area and forward into the engine room. Ensign Watson remained in the cockpit area looking through the hatch toward the living compartment in the direction Howard had gone. From this position Watson observed burlap bags partially covered by clothing and blankets which he suspected were bales of marijuana. Watson then radioed the Duane requesting an armed boarding party as reinforcements.

While in the engine room, Howard was unable to find the main beam number, but he did conduct a brief safety inspection. On the way back to the cockpit, Howard also observed the burlap bags in the living compartment. Once on deck, Howard noticed the odor of marijuana. When the armed boarding party arrived, Howard asked the three Southern Belle crewmen about the bales, but they refused to answer. A field test of a sample from one of the bales registered positive for marijuana. Eventually, 234 bales weighing 6 1/4 tons were found aboard. Cmdr. Schowengerdt then ordered Howard by radio to arrest the three men and seize the vessel. At this point, Baggett disclaimed his earlier contention that he was master of the vessel; Hilton, who gave his name as Wayne Milton, then stated "I am in charge." The arrested suspects were transported to the Duane about 6:00 p.m.

At approximately 7:30 p.m., the Southern Belle was taken in tow by the Duane with a prize crew aboard under Lieutenant Howard's command. At the direction of the Coast Guard Atlantic Regional Office in New York, Howard then conducted a full search of the vessel for documents or papers that might reflect the vessel's course at the time of the seizure. This search turned up a locked briefcase, which was found under a metal hatch in the living compartment, and a 35 mm camera with six rolls of film in separate canisters. Taken aboard the Duane, the briefcase was opened by the ship's executive officer under Cmdr. Schowengerdt's supervision. Schowengerdt testified he had been informed by this time that the Drug Enforcement Agency (DEA) was conducting an investigation of suspected drug smuggling activities on Mt. Desert Island, Maine, where a large shipment of marijuana was imminently expected. He stated that he ordered the briefcase to be opened because he believed it might contain additional contraband or evidence tying the Southern Belle to the Mt. Desert Island activities. The briefcase in fact contained a passport, notebooks, a writing pad, a calculator, booklets, and other items. The six rolls of exposed film were later developed and together with items from the briefcase admitted into evidence.

The land-based DEA investigation led to the arrests of 13 other persons at various points near the Maine coast. All 16 were charged with conspiracy to possess marijuana with intent to distribute. Subsequent to the district court's ruling on the motion to suppress, the 13 land-based conspirators pleaded guilty. Defendants Hilton, Baggett and Stover were tried by a jury and found guilty. After trial, defendants filed motions in the district court seeking reconsideration of the denial of their motion to suppress and a judgment of acquittal notwithstanding the verdict. On April 26, 1979, these motions were denied, and defendants were sentenced. This appeal followed.

I.

The Coast Guard boarding of the Southern Belle was conducted pursuant to the authority of 14 U.S.C. § 89(a), which provides:

"The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. 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 the ship's documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. When 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 or, if escaping to shore, shall be immediately pursued and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel liable to a fine or penalty and if necessary to secure such fine or penalty, such vessel or such merchandise, or both, shall be seized."

Under this statute, the Coast Guard may stop and board any American flag vessel on the high seas without a warrant and without any particularized suspicion of wrongdoing. Although the statutory language is quite broad, the statute has been consistently construed as limiting such stops — in the absence of probable cause — to the necessary task of conducting safety and document inspections. See, e. g., United States v. Warren, 578 F.2d 1058, 1064-65 (5th Cir. 1978) (en banc); id. at 1077 (Roney, J., dissenting); United States v. Hillstrom, 533 F.2d 209, 210 (5th Cir. 1976) (per curiam), cert. denied, 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (1977); United States v. Odom, 526 F.2d 339, 342 (5th Cir. 1976); cf. United States v. Zurosky, 614 F.2d 779, 787-789 (1st Cir. 1979) (construing similar customs search statute, 19 U.S.C. § 1581); United States v. Freeman, 579 F.2d 942 (5th Cir. 1978) (same). A more extensive search is permissible only if there is consent or probable cause to believe a crime has been or is being committed. Id. Upon probable cause, the Coast Guard is authorized to seize the vessel and its contents, and to arrest those aboard. 14 U.S.C. § 89(a); see United States v. Warren, supra, 578 F.2d at 1065.

The high seas lie seaward of the territorial waters, which extend three miles from the coast. The high seas encompass the contiguous zone (also known as the customs waters) extending three to twelve miles from the coast. We deal here with the boarding of an American vessel by the Coast Guard beyond the 12-mile customs limit. See United States v. Warren, 578 F.2d 1058, 1064 n. 4 (5th Cir. 1978) (en banc); compare 19 U.S.C. § 1581(a).

We have previously stated that the statute, as so construed, is undoubtedly constitutional. United States v. Miller, 589 F.2d 1117, 1125 n. 3 (1st Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979) (dictum). The Fifth Circuit has also taken this position, see United States v. One (1) 43 Foot Sailing Vessel, 538 F.2d 694, 694 (5th Cir. 1976) (per curiam). The Ninth Circuit has upheld the stopping of a vessel for safety and document inspection at least where a safety hazard was observed. United States v. Odneal, 565 F.2d 598, 601 (9th Cir. 1977), cert. denied, 435 U.S. 952, 98 S.Ct. 1581, 55 L.Ed.2d 803 (1978). Cf. United States v. Piner, 608 F.2d 358 (9th Cir. 1979) (limiting nighttime safety inspections).

We believe the limited intrusion represented by a document and safety inspection on the high seas, even in the absence of a warrant or suspicion of wrongdoing, is reasonable under the fourth amendment. While not devoid of protection under the fourth amendment, the ordinary vessel, like an automobile, carries with it a lesser expectation of privacy than a home or office. United States v. Zurosky, 614 F.2d 779, 790 (1st Cir. 1979); United States v. Miller, 589 F.2d 1117, 1125 (1st Cir. 1978). But see Note, High on the Seas: Drug Smuggling, The Fourth Amendment, and Warrantless Searches at Sea, 93 Harv.L. Rev. 725, 728 (1980). And even more than cars, vessels are inherently mobile. The oceans are the highways of the world. Vessels off our coasts may be from anywhere on any mission. They may easily lose themselves on the trackless waters. The government's interests in being able to identify craft off the coasts are of major importance; to secure those interests the government must have a limited right to detain and inspect. The government's interests in being able to conduct discretionary safety inspections of its flag vessels have a similar degree of importance. The Coast Guard is vested with broad authority to promote the safety of American vessels on the high seas, 14 U.S.C. § 2. Under international law, the United States is expected to regulate the safety and lawful operation of its flag vessels on the high seas. See Convention of the High Seas, Sept. 30, 1962, arts. 5, 10, 13 U.S.T. 2312, 2315, 2316, T.I.A.S. No. 5200; United States v. Warren, 578 F.2d 1058, 1064 n. 4 (5th Cir. 1978); United States v. One (1) 43 Foot Sailing Vessel, 405 F. Supp. 879, 882 (S.D.Fla. 1975), aff'd, 538 F.2d 694 (5th Cir. 1976) (per curiam). Improperly registered or unsafe American vessels may constitute an international hazard. Inspection schemes limited to inspecting vessels in American ports would decrease the Coast Guard's ability to police all American flag vessels, particularly since such vessels may operate far from the shores of the United States, seldom calling on American ports.

We observe that in the analogous area of customs searches within 12 miles of the coast, broad authority to stop and board without probable cause or a warrant historically bears the imprint of approval. The authority presently embodied in 19 U.S.C. § 1581 can be traced to the First Congress. Act of August 4, 1790, c. 35, § 31, 1 Stat. 145, 164; see United States v. Freeman, 579 F.2d 942, 946-47 (5th Cir. 1978); cf. United States v. Ramsey, 431 U.S. 606, 616-17, 97 S.Ct. 1972, 1978-79, 52 L.Ed.2d 617 (1977); Boyd v. United States, 116 U.S. 616, 623, 6 S.Ct. 524, 528, 29 L.Ed. 746 (1886).

Because of the unique circumstances existing on the high seas, the long history of regulatory stops and inspections of ocean-going vessels, the heavy overlay of maritime and international law, the concern of the nation for policing its ocean borders, even beyond the 12-mile customs zone, and the strong interest in regulating the conduct of vessels protected by our flag, we believe the Coast Guard's practice of stopping American vessels on the high seas for safety and document inspections, with or without suspicion of wrongdoing, constitutes an exception to the usual rule that warrantless searches are per se unreasonable. Compare, e. g., Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-2032, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). This exception is comparable to others explicitly recognized by the Supreme Court, and is based on a unique confluence of the policies behind such traditionally distinct exceptions as the border search doctrine, the administrative inspection of highly regulated industries exception, and the automobile exception. See United States v. Whitmire, 595 F.2d 1303, 1315 n. 36 (5th Cir. 1979), petition for cert. filed, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283. The exception does not authorize Coast Guard officers to explore a vessel beyond the search reasonably incident to a safety and document inspection, and it assuredly does not give carte blanche to search private books, papers, or other effects or areas of a vessel not related to the purposes of such an inspection.

Defendants argue that random, warrantless Coast Guard stops cannot be justified under the administrative inspection exception in light of Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). In Barlow's, the Court held that inspections of businesses subject to the Occupational Safety and Health Act could not be conducted without an administrative warrant, although such a warrant could be issued without probable cause in the traditional sense. The short answer to defendant's contention is that the constitutionality of the Coast Guard's boarding practices does not stand or fall on meeting the requirements of the administrative inspection exception. What would be reasonable in procedures for searches of domestic commercial establishments would not necessarily be reasonable in procedures for Coast Guard boardings on the high seas. See Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1395-1396, 59 L.Ed.2d 660 (1979) (reasonableness standard governs). Indeed, even were we to apply the Barlow's standard to Coast Guard boardings, the traditionally pervasive regulation of ocean-going traffic, both commercial and recreational, makes this case more analogous to the exception recognized for industries "long subject to close supervision and inspection." Colonnade Catering Corp. v. United States, 397 U.S. 72, 77, 90 S.Ct. 774, 777, 25 L.Ed.2d 60 (1970) (liquor); see also United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (firearms).

Defendants contend that the authority to board and inspect pursuant to section 89(a) runs afoul of the holding in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), that random warrantless stops of automobiles to check licenses and registration are impermissible. Defendants urge that the same "[s]tandardless and unconstrained discretion" that troubled the Court in Prouse operates in the case of random Coast Guard boardings as well. Again, we disagree. Justice Blackmun, concurring in Prouse, highlighted the limits of the holding in that case:

"I would not regard the present case as a precedent that throws any constitutional shadow upon the necessarily somewhat individualized and perhaps largely random examinations by game wardens in the performance of their duties. In a situation of that type, it seems to me, the Court's balancing process, and the value factors under consideration, would be quite different."

440 U.S. at 664, 99 S.Ct. at 1401. Not only is the context of automobile stops significantly different from that of boardings on the high seas, but the limited alternatives available to the government in pursuing its objectives of safety, identification and proper registration of vessels flying our flag are substantially less attractive. There can be no possibility of setting up roadblocks in the North Atlantic as a less intrusive alternative. Id. While the Coast Guard is thus left with considerable discretion in deciding which vessels to stop, we believe such discretion is virtually unavoidable in a scheme of regulation that depends on stops conducted at sea, far from courts and magistrates.

II.

We therefore conclude that the commander of the Coast Guard cutter Duane was not barred by the Constitution from stopping and boarding the Southern Belle, whether or not he had reasonable suspicion or probable cause to believe a violation existed. Once officers Howard and Watson were aboard the vessel, they had authority to conduct a reasonable safety and document inspection. Particularly in light of the confused state of the Southern Belle's registration papers, the officers were justified in entering the enclosed portion of the vessel to examine the main beam number, as well as to conduct a safety inspection of the engine room. While below, Lieutenant Howard observed burlap bags partially concealed with clothing and blankets. Ensign Watson also saw these bags from the deck of the vessel. While conferring on the deck about their suspicions that these bags might contain marijuana, Howard noticed the odor of marijuana. We have no difficulty concluding on the basis of these facts that the officers had probable cause to search the contents of the bags for contraband which was in the process of being imported into the United States. See United States v. Odneal, 565 F.2d 598, 600 (9th Cir. 1977), cert. denied, 435 U.S. 952, 98 S.Ct. 1581, 55 L.Ed.2d 803 (1978); cf. Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S.Ct. 2022, 2037-2039, 29 L.Ed.2d 564 (1971) (plain view). Discovery of the marijuana, together with the other facts known to the officers, amply justified arrest of the defendants and seizure of their vessel. 14 U.S.C. § 89(a).

Defendants' other two arguments are insubstantial. We agree with the district court that these defendants have no "standing" to contest the search of the briefcase, the camera, and the film canisters seized aboard the Southern Belle since none of the defendants, either at the time of the seizure or at the suppression hearing, asserted any proprietary or possessory interest in the items seized. See Rakas v. Illinois, 439 U.S. 128, 130-31 n. 1, 99 S.Ct. 421, 423-24 n. 1, 58 L.Ed.2d 387 (1978). We thus do not consider whether the opening of the briefcase, the camera, and the film canisters was, as the government contends, justified under the exigent circumstances doctrine. Compare United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Finally, as we find no basis for holding any of the seized material inadmissible, defendants' contention that absent such material there was insufficient evidence to support a conviction fails. The district court did not err in denying defendants' motions for judgment of acquittal.

Affirmed.

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UNITED STATES v. HILTON
(Apr 11, 1980)