UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1385
UNITED STATES OF AMERICA,
Appellee,
v.
JOAQUIN CARDONA-SANDOVAL,
Defendant, Appellant.
No. 92-1386
UNITED STATES OF AMERICA,
Appellee,
v.
ALEJANDRO ROJANO-RANGEL,
Defendant, Appellant.
No. 92-1387
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE GOMEZ-OLARTE,
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.
David W. Rom n, by appointment of the Court, for appellant
Joaqu n Cardona-Sandoval.
Juan R. Acevedo-Cruz, by appointment of the Court, with whom
Charles A. Rodr guez, was on brief for appellants Jorge G mez-
Olarte and Alejandro Rojano-Rangel.
Jeanette Mercado-R os, Assistant United States Attorney,
with whom Daniel F. L pez-Romo, United States Attorney, and Jos
A. Quiles-Espinosa, Senior Litigation Counsel, were on brief for
appellee.
September 29, 1993
AMENDED OPINION
TORRUELLA, Circuit Judge. This appeal involves the
validity of a search of a vessel. Appellants Joaqu n Cardona-
Sandoval, Alejandro Rojano-Rangel, and Jorge G mez-Olarte appeal
their convictions of possessing cocaine with intent to distribute
it in violation of 46 U.S.C. 1903(a), (b)(1), and (f). For the
reasons that follow, we reverse the convictions.
I
The facts are set forth in the light most favorable to
the government. Appellants Cardona-Sandoval (the captain),
Rojano-Rangel and G mez-Olarte (the crew),1 were on board a
forty-three foot sports-fisherman, Florida registration Number
"FL 8304 EM"2 allegedly on route from Colombia, South America to
St. Maarten. All appellants are Colombian nationals.
On February 25, 1990, they were intercepted by the
U.S.S. BIDDLE, a Navy destroyer. The U.S.S. BIDDLE was charged
with boarding northbound vessels of less than four hundred feet
as part of the government's drug interdiction program. Coast
Guard officials aboard the U.S.S. BIDDLE were to conduct the
boardings and investigations.3
Following standard procedure, the U.S.S. BIDDLE
attempted radio and loudspeaker communication with FL 8304 EM in
1 The third crew member, Alfonso Molina, was acquitted at trial.
2 The parties stipulated that the vessel was subject to the
jurisdiction of the United States.
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 English and Spanish, but the vessel never responded. The
U.S.S. BIDDLE then dispatched a six-member boarding party to
conduct a document and safety inspection. The crew did not
object to this inspection.
This initial boarding lasted approximately two hours.
Two members of the boarding party guarded the captain and crew at
the stern of the vessel while four others checked it for
compliance with safety regulations. They also conducted a so-
called space accountability search to ensure that the vessel was
not compartmentalized secretly for smuggling. During the
inspection, the captain, Cardona-Sandoval, stated that Roberto de
Armas owned the vessel and that appellants were employed to bring
the boat from Colombia to St. Maarten. The registration
document, however, indicated that Luis Rodr guez owned the boat.
Cardona-Sandoval claimed not to know Rodr guez.
As the space accountability search neared completion,
one of the junior officers asked the senior officer leading the
boarding party, Petty Officer William Ronald Spake, to personally
inspect certain areas that appeared suspicious. The areas
included a newly-constructed shower; several walls that appeared
thicker than necessary, according to the petty officer's prior
experience; and a large water tank. Spake indicated that the
generally "messy" state of the boat made him suspicious, as well,
but after two hours of searching, no contraband was discovered.
He then cited vessel master Cardona-Sandoval with a minor
violation -- for producing a photocopy of the boat's registration
-4-
rather than the original -- and conferred with his superior
aboard the U.S.S. BIDDLE, Lieutenant George Boyle. The two
agreed that they had completed the space accountability search to
the best of their ability. Lt. Boyle directed the boarding party
to report back to the U.S.S. BIDDLE and, thereafter, the Coast
Guard allowed appellants to continue their voyage.
That evening the boarding party and Lt. Boyle assembled
for debriefing. The team made several observations: (1) that
recent reconstruction had been done on the vessel; (2) that
appellants were from a known drug source country; (3) that the
sleeping cabins were in disarray, which suggested to the Coast
Guard that the crew slept on the deck; (4) that the boat had been
painted recently and the paint was peeling; and, (5) that the
United States flag was not displayed as it should have been. In
addition, one member of the party had become ill during the
search, and the officer who replaced him failed to continue the
search exactly where the other officer had left off. Lt. Boyle
determined that the boarding party had failed to search
adequately the space behind the medicine cabinet and the
reconstructed shower area, and decided to reboard FL 8304 EM to
complete the space accountability search. The record indicates a
controversy regarding the real impetus for the second search.4
In addition, sometime on February 25, 1990, Lt. Boyle
4 See United States v. Sandoval, 770 F. Supp. at 766 (stating
Boarding Report of February 25, 1990 cited medicine cabinet on
bulkhead as reason for reboarding; and rejecting the magistrate's
finding that the water tank was a specific reason for the second
boarding).
-5-
learned: (1) that the El Paso Intelligence Center ("EPIC")
indicated that the captain had been convicted of smuggling
marijuana in 1984; (2) that FL 8304 EM was also known as the
"Wicho" and was on the EPIC lookout list as possibly having
hidden compartments for smuggling; and (3) that EPIC had
information on both Roberto de Armas and Luis Rodr guez. Because
Lt. Boyle failed to note or was unable to recall the exact time
that he received the EPIC information, we do not know whether the
Coast Guard possessed this information during the initial search.
On the morning of February 26, 1990, a Navy aircraft
located the FL 8304 EM on a course 100 degrees different from the
day before. The Coast Guard testified that although conditions
at sea had deteriorated considerably, the change in course was
not justified by the weather. The Coast Guard inferred that FL
8304 EM had taken evasive action.
Although the Coast Guard justified the second boarding
as required by the need to complete the space accountability
search, the search actually conducted was much broader than
initially purposed. In fact, the second search lasted
approximately five hours. During that time, the boarding party
used an axe and a crowbar to further investigate the shower area
and space underneath the water tank. No contraband was found.
Ultimately, the Coast Guard determined that the seas
were too rough to continue the search at sea and they decided to
take the vessel and its crew to the Roosevelt Roads Naval Base at
Ceiba, Puerto Rico, in order to continue the search. Appellants
-6-
were transferred to the U.S.S. BIDDLE, allegedly for their
safety, and Coast Guard personnel piloted FL 8304 EM back to
Puerto Rico. The district court found that appellants did not
consent to be taken to Puerto Rico. Id. at 766.
On February 27, while in transit to Puerto Rico,
Lt. Boyle inspected the FL 8304 EM personally, and reaffirmed the
decision to bring the vessel to shore because certain spaces,
such as the water tank (which was welded to the ribs of the
vessel), could not be accessed at sea without the risk of sinking
the boat.
On February 28, the vessel arrived in Puerto Rico.
Navy divers and a narcotics search dog were brought to search the
vessel, but detected nothing. The Coast Guard stated that there
were too many things strewn over the deck that interfered with
the dog's olfactory sense. The water tank was then removed from
the boat, and the gasoline tank was emptied. Notwithstanding
this search, at the end of the day no contraband had been found.
Lt. Boyle transferred custody of the FL 8304 EM to Lt. J.G.
Gatlin of the San Juan Coast Guard Law Enforcement attachment.
On March 1, the FL 8304 EM was removed from the water.
At this point a destructive search began in earnest. The poor
condition of the deck and other factors that suggested that it
might have been raised to create hidden spaces, prompted the
Coast Guard to use a chainsaw to cut through the deck in search
of narcotics. The ceilings and walls of the cabins were pulled
down and thoroughly searched. Gatlin and his team discovered a
-7-
grinder which could be used to cut fiberglass, as well as
cushions on the deck filled with fiberglass shavings, suggesting
that fiberglass molding work had been done recently.
Nevertheless, by the end of the day no illicit substances had
been found on the FL 8304 EM.
The government did not give up. The search continued
on March 2nd. That afternoon, the search team drilled into two
beams that ran the length of the vessel and upon which the engine
was mounted. Cocaine was found there. Yet it took the search
team even more time to find the place from which the cocaine
could be accessed. Using an axe and crowbar, the officers worked
for several minutes to open an access point.
After the U.S.S. BIDDLE and FL 8304 EM arrived at
Roosevelt Roads Naval Station on February 28, appellants were
detained at the base for six hours under guard, during which time
they received no food. Subsequently, they were transferred to
Immigration and Naturalization Service ("INS") custody and moved
to the airport in San Juan where they were detained for three
hours in a locked room. Thereafter they were handcuffed and
transported to the INS detention facilities at the Salvation Army
in San Juan, where they were placed in a large locked room, which
resembled a cage. There, they were detained during the three-day
on-land search until 5:00 P.M. on March 2, 1990 when they were
formally arrested.
After their arrest, appellant Cardona-Sandoval
explained to United States Customs Special Agent Roberto Jusino
-8-
that he had been hired by Roberto de Armas in Barranquilla,
Colombia to pick up FL 8304 EM at R o Hacha, Colombia and take it
to St. Maarten. He was to be paid 80,000 Colombian pesos for the
job. Similarly, appellant Rojano-Rangel stated that he had been
hired by Cardona-Sandoval as a crew member for 60,000 pesos.
During the trial, the prosecution and several witnesses
incorrectly stated the compensation in dollars, when they
actually meant pesos. Because the words peso and dollar are used
interchangeably in Puerto Rico to mean United States dollars, the
parties stipulated at a later point in the trial that any
reference to United States dollars was incorrect and that the
correct reference was to Colombian pesos. Agent Jusino testified
at trial that the exchange rate for Colombian pesos was very low,
but did not testify as to the value of the compensation in
American dollars. Appellants attempted to introduce expert
testimony on the exchange rate but the district court denied
their proffer, finding the witness they attempted to use
unqualified to testify on such matters.
II
Appellants challenge their convictions on several
grounds. They allege that the district court improperly denied
their motion to suppress evidence seized during the search of
their vessel, which they claim was in violation of their Fourth
Amendment rights. Alternatively, they argue that the evidence
was insufficient to support the guilty verdicts. They also
contend that the district court committed reversible error by
-9-
refusing to voir dire the jury regarding their knowledge of two
prejudicial newspaper articles published during the
deliberations, and by refusing to admit the testimony of a
defense expert witness as to the exchange rate between the
Colombian peso and the United States dollar.
The district court denied the motion to suppress the
evidence seized from the vessel, holding that (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 had no privacy interest in the structural beams along the
hull of the vessel; and (3) the Coast Guard had probable cause to
bring the ship to Roosevelt Roads for a destructive search.
United States v. Sandoval, 770 F. Supp. at 766-67. Although we
disagree with the district court's conclusion that appellants
were not under arrest once they were brought to Puerto Rico and
placed in a holding cell for approximately three days while their
vessel was searched, we agree that the cocaine seized cannot be
considered the fruit of that illegal arrest. We focus,
therefore, on the issues related to the search of the vessel.
III
The Fourth Amendment guarantees "[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures . . . ."5
5 United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990),
has no application because the vessel was a United States flag
ship and the violation occurred within United States territory.
Cf. United States v. Aikens, 947 F.2d 608, 613 (9th Cir. 1990).
-10-
An individual's Fourth Amendment right to be free from
unreasonable searches is implicated when he or she (1) has
"manifested a subjective expectation of privacy" in the place
searched, which (2) "society accepts as objectively reasonable."
California v. Greenwood, 486 U.S. 35, 39 (1988); see also
O'Connor v. Ortega, 480 U.S. 709, 715 (1980); Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
To demonstrate a "subjective expectation of privacy,"
the Court has required little more than evidence that defendants
made some minimal effort to protect their property or activities
from warrantless intrusions. See, e.g., Greenwood, 486 U.S. at
39 (placing garbage in opaque plastic bags "clearly" manifests
"subjective expectation of privacy," even though bags are later
publicly discarded); California v. Ciraolo, 476 U.S. 207, 211
(1986) (building ten-foot fence around yard manifests "subjective
expectation of privacy" from side walk traffic). But cf.
Rawlings v. Kentucky, 448 U.S. 98, 104 (1980) (placing contraband
in acquaintance's purse does not manifest "subjective expectation
of privacy").
There is "no talisman that determines in all cases
those privacy expectations that society is prepared to accept as
reasonable." O'Connor, 480 U.S. at 715. The reasonableness of
an expectation of privacy and the proper standard for a search
vary according to context. Id. While "arcane distinctions
developed in property and tort law" do not control the inquiry,
Rakas v. Illinois, 439 U.S. 128, 143 (1978), we do consider
-11-
ownership, possession, control, ability to exclude from the
premises, or a legitimate presence on the premises when
determining the existence of a legitimate expectation of privacy.
United States v. Melucci, 888 F.2d 200, 202 (1st Cir. 1989);
United States v. Aguirre, 839 F.2d 854, 856 (1st Cir. 1988). In
addition, because of the "circumstances and exigencies of the
maritime setting," we have recognized that individuals have a
diminished expectation of privacy on a vessel as opposed to that
which can be claimed in their homes. See, e.g., United States v.
Green, 671 F.2d 46, 53 (1st Cir.), cert. denied, 457 U.S. 1135
(1982); United States v. Hilton, 619 F.2d 127, 131 (1st Cir.),
cert. denied, 449 U.S. 887 (1980). Finally, we note that "Fourth
Amendment rights are personal rights which . . . may not be
vicariously asserted." Alderman v. United States, 394 U.S. 165,
174 (1969). With these principles as background, we turn to the
facts of the present case.
Appellants must be divided into two groups for the
purpose of measuring the legitimacy of their expectation of
privacy: the captain and the crew members. The captain,
Cardona-Sandoval, has a cognizable expectation of privacy from
unauthorized police intrusions everywhere aboard his ship. This
interest derives from his custodial responsibility for the ship,
his associated legal power to exclude interlopers from
unauthorized entry to particular places on board, and the
doctrines of admiralty, which grant the captain (as well as the
owner) a legal identity of interest with the vessel. See, e.g.,
-12-
The Styria, 186 U.S. 1 (1902); Coastal Iron Works, Inc. v. 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, 946 F.2d 608 (9th Cir. 1990); see generally 1 Martin J.
Norris, The Law of Seamen 25:1 et seq. (4th ed. 1985 & supp.
1993) (describing broad powers of master of vessel). Cardona-
Sandoval objected to having his boat taken to Puerto Rico for a
destructive search, and therefore manifested his subjective
expectation of privacy in the vessel. It is appropriate to
conclude that Cardona-Sandoval's subjective expectation that he,
his vessel and crew, not be taken from the high seas, brought to
a country which he did not care to enter, subjected to a six-day
search (three of which occurred on land and constituted a
destructive search), and detained in a barred cage while the
government destroyed the vessel, is one that society is prepared
to recognize as reasonable. Thus, in his capacity as master of
the vessel, Cardona-Sandoval has a Fourth Amendment right to
challenge the searches in this case. See United States v.
Marrero, F. Supp. 570, 574 (S.D. Fla. 1986) (defendant who was
owner and captain has Fourth Amendment right to contest search).
Whether the crew members' expectation of privacy is
objectively reasonable is a more difficult question. A number of
cases have limited the areas of a vessel in which crew members
legitimately possess an expectation of privacy. See United
States v. Arra, 630 F.2d 836, 841 n.6 (1st Cir. 1980)
(questioning, without deciding, whether crew members have right
-13-
to challenge search in areas other than living quarters); United
States v. Peterson, 812 F.2d 486, 494 (9th Cir. 1987) (crew has
no privacy interest in cargo hold); United States v. Thompson,
928 F.2d 1060, 1065 (11th Cir.) (recognizing difference between
private areas or footlockers versus cargo holds), cert. denied,
112 S. Ct. 270 (1991). The underlying principle of these cases
is that a crew member cannot have an expectation of privacy in a
space that the Coast Guard is free to inspect in the course of a
document and safety check. Obviously, contraband that the Coast
Guard observes within plain view (or detects by sensory
perception) while searching the cargo hold is not within an area
in which crew members could have a reasonable or legitimate
privacy interest. Thompson, 928 F.2d at 1064. This, of course,
would apply to the captain as well.
We think that cases involving substantial vessels, such
as cargo ships and freighters, must be distinguished from the
case at hand. It is quite understandable that in dealing with a
major vessel, a court should distinguish among areas, treating
some as not susceptible to a reasonable expectation of privacy by
a crew member. For example, the short hand designation of a
freighter's cargo hold as a common area, in which no crew member
could possess a reasonable expectation of privacy, is not
objectionable in the factual context of those cases by reason of
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. Here, we confront a small pleasure craft used for
fishing. The vessel's compartments were small and cramped, and
the crew numbered only four. There was no practicable means to
exclude members of the crew from specific areas of the vessel.
Like hosts and their overnight guests in a small apartment, the
captain and crew members, each individually, possessed a
reasonable expectation of privacy in all areas of the vessel with
respect to all individuals not living within the unit and sharing
the space. This sharing of limited space and lack of demarcation
is the reality of life upon a small boat.
In such a 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 fact that several individuals may share
the limited space no more makes the space public than would the
fact that a family may share a house or a hotel room. We cannot
lay down a yardstick for every case, but we think that this case
is at the other pole from the freighter or cruise vessel where an
individual's private space can meaningfully be distinguished from
areas 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
To the extent that Fifth and Eleventh Circuit cases may
6 In equity, one might argue that the crew deserves at least as
much protection as the captain, for the captain is the person
most likely to be trusted with the knowledge of the presence of
contraband, and is also the most likely leader of the criminal
enterprise. But standing rules do sometimes produce odd outcomes
and we note this point without relying upon it for our holding.
-15-
be read to dictate a different result for small vessels, we
decline to follow them. See, e.g., United States v. L pez, 761
F.2d 632, 636 (11th Cir. 1985) (suggesting methodological
approach that confers or rejects right to contest search
according to function of specific compartments within a vessel,
such as cargo hold or living quarters); United States v. DeWeese,
632 F.2d 1267, 1271 (5th Cir. 1980) (ice hold common area;
dufflebags and footlockers private areas).
Of course, the captain and crew's expectations of
privacy is subject to the Coast Guard' authority to conduct
document and safety inspections and its limited power to search
more intrusively upon reasonable suspicion. But this is not
inconsistent with recognizing that the crew, like the captain,
still retains privacy interests that go beyond the wallet or
footlocker. Rather, it means that in determining what is
reasonable behavior by officials, there is a latitude that
reflects the mobility of the vessel, the special dangers of sea
travel and other considerations peculiar to sea travel. But that
latitude is not unlimited and we turn now to the question whether
in this case the government overstepped the bounds.
IV
The Coast Guard's authority under 14 U.S.C. 89(a)7
7 14 U.S.C. 89(a) provides, in relevant part:
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,
-16-
to stop and board an American vessel on the high seas8 is quite
broad. We have held that administrative safety and document
inspections are permissible even "without any particularized
suspicion of wrongdoing." United States v. Elkins, 774 F.2d 530,
533-34 (1st Cir. 1985) (quoting United States v. Burke, 716 F.2d
935, 937 (1st Cir. 1983)). Despite this empowerment, the Fourth
Amendment still prohibits unreasonable searches. The
reasonableness of any search depends first on "whether the . . .
action was justified at its inception," Terry v. Ohio, 392 U.S.
1, 20 (1968), and second, on whether the search actually
conducted "was reasonably related in scope to the circumstances
which justified the interference in the first place." Id.; see
also New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).
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 the operation of any
law, of the United States, address
inquiries to those on board, examine the
ships 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 immediately
pursued and arrested on shore, or other
lawful appropriate action shall be taken
. . . .
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
searches and seizures of vessels while at sea, we have recognized
a diminished expectation of privacy. Green, 671 F.2d at 53;
Hilton, 619 F.2d at 131. Nevertheless, we require that the Coast
Guard possess "reasonable and articulable grounds for suspecting
that the vessel or those on board are engaging in criminal
activities" before conducting a thorough search beyond checking
for compliance with safety regulations. Green, 671 F.2d at 53
(citing Williams, 617 F.2d at 1076, 1084). The necessary
"reasonable suspicion" may be formed on the basis of facts
obtained during the safety and document inspection, and once
reasonable suspicion exists the inspecting officers may drill
into a suspicious area to search for contraband. Elkins, 774
F.2d at 534. Both the document and safety inspection, and a
search pursuant to reasonable suspicion, must be confined to
areas reasonably incident to the purpose of the inspection.
Therefore, a reasonable suspicion search only authorizes a
limited intrusion. For example, if a particular area of a vessel
raises a reasonable suspicion, then that area may be investigated
further. Id. (suspicious fuel tank); see also L pez, 761 F.2d at
636. Neither authority provides carte blanche to destroy a
vessel. See Hilton, 619 F.2d at 132 (discussing scope of
document and safety inspection).
In the maritime context, the relative intrusiveness of
a search must be justified by a corresponding level of suspicion
supported by specific facts gathered by investigating officials.
-18-
Cf. New Jersey v. T.L.O., 469 U.S. at 343-44, 347 (contemplating
expanding scope of search where justified by facts giving rise to
further reasonable suspicion); Villamonte M rquez, 462 U.S. at
592. We recognize that by allowing each inspection to provide
the basis for a more intrusive search -- document and safety
inspection supplying reasonable suspicion which later supports a
probable cause determination -- we risk manipulation by
government officials of the factual progression that provided the
authority for ever more intrusive searches. We think that this
danger further justifies the deterrent supplied by our holding
with respect to standing. More intrusive searches that yield no
contraband can halt the forward progression evidence that would
justify a full, destructive search. Thus, if a document and
safety inspection causes a Coast Guard officer to have reasonable
suspicion with respect to certain areas, and a search of those
areas yields nothing, then a destructive search might not be
justified. Cf. Mincey v. Arizona, 437 U.S. 385, 393 (1978)
("warrantless search must be 'strictly circumscribed by the
exigencies which justify its initiation'") (citation omitted).
Ultimately, a full, "stem to stern," destructive search may only
be conducted on the basis of probable cause. L pez, 761 F.2d at
636-37; United States v. Andreu, 715 F.2d 1497 (11th Cir. 1983).
The facts of the present case provide a graphic
illustration of the principles stated above. The initial
boarding of the FL 8304 EM was for a perfectly legal document and
safety inspection pursuant to 14 U.S.C. 89(a). Petty Officer
-19-
Spake issued a minor violation notice for failing to present the
original copy of the vessel's registration papers. He felt that
he was not authorized to proceed further with the search despite
his "suspicion" regarding certain spaces. (Suppression Hearing
Transcript, October 1, 1990, at 58). Matters changed, however,
during the subsequent debriefing. Apparently, EPIC information
was received regarding the vessel, the captain, and the two
alleged owners. In addition, certain spaces purportedly had not
been accounted for during the document and safety inspection.
The sequence of these developments raises questions. The absence
of adequate answers to these questions casts doubt on the
validity of subsequent events.
After-the-fact rationalizing is precisely what makes
the relaxed warrant and cause procedures such a dangerous tool in
the hands of over-zealous officials. If we had a clear record
establishing reasonable suspicion to reboard the FL 8304 EM based
on specific factors, this action would be less troubling than it
presently is. But in this case the record is unclear as to when
specific pieces of information came to the attention of the Coast
Guard, and on what basis the Coast Guard justified their actions.
The government's brief suffers from the same problem.
For example, it suggests that the boarding party discovered
fiberglass shavings in the cushions on the deck of the vessel,
which added support for the second boarding and bringing the
vessel to Puerto Rico. But our investigation of the record
indicated that Lt. Gatlin's on-land inspection team did not
-20-
discover the fiberglass until March 1. We cannot stress enough
the importance of compiling a coherent and detailed record as to
when facts are discovered and when the inferences and conclusions
are drawn therefrom. A finding of guilt becomes irrelevant if
the evidence upon which conviction is secured is not procured in
a constitutional manner. Wong Sun v. United States, 371 U.S. 471
(1963).
Notwithstanding the abuse, we conclude that the second
boarding and five-hour search was justified by reasonable
suspicion rather than by the necessity of completing the document
and safety inspection. The circumstances changed, however, once
the FL 8304 EM arrived in Puerto Rico. The search by Navy divers
and a narcotics detection dog, and the thorough and destructive
inspection of many structural areas of the boat (including the
suspicious shower area and water tank), dissolved any legally
sustainable suspicion once reasonably held. At that point, all
the government had to support a probable cause finding was the
EPIC information, the course change, and the fact that the boat
originated from a drug source country. Such evidence fails to
support a finding of probable cause. In the absence of probable
cause, the destructive stem to stern search was illegal, and any
evidence discovered as a result of that excessively intrusive
search should have been suppressed by the district court. Wong
Sun, 371 U.S. at 488.
V
Conclusion
-21-
Because we find that all the appellants had a
reasonable expectation of privacy sufficient to confer a right to
challenge the search of the vessel, and because the search
violated appellants' Fourth Amendment rights, the convictions
must be reversed. We need not consider appellants' other
arguments.
Appellants' convictions are reversed.
Dissent Follows
CYR, Circuit Judge (dissenting in part). Although the
CYR, Circuit Judge (dissenting in part).
stem-to-stern destructive search of the drydocked vessel exceeded
whatever reasonable limits inhere in a safety and document
inspection, I believe the defendant crew members failed to
establish an intrusion on their Fourth Amendment rights.
As the Supreme Court recently reiterated, "a 'search'
occurs when an expectation of privacy that society is prepared to
consider reasonable is infringed." Soldal v. Cook County,
Illinois, 113 S. Ct. 538, 544 (1992) (quoting United States v.
Jacobsen, 466 U.S. 109, 113 (1984)); see also United States v.
Bouffard, 917 F.2d 673, 675-76 (1st Cir. 1990); United States v.
Soule, 908 F.2d 1032, 1034 (1st Cir. 1990). The burden of
establishing a protected Fourth Amendment privacy interest rests
squarely with the individual defendant. Rawlings v. Kentucky,
448 U.S. 98, 104 (1980); Bouffard, 917 F.2d at 675 (quoting Rakas
v. Illinois, 439 U.S. 128, 131 n.1 (1978)). Accordingly, for
more than a decade the Court has insisted that "the capacity to
-22-
claim the protection of the Fourth Amendment depends . . . upon
whether the person who claims [its] protection . . . has a
legitimate expectation of privacy in the invaded place." Rakas,
439 U.S. at 143 (emphasis added); see also California v. Green-
wood, 486 U.S. 35, 39-40 (1988); Rawlings, 448 U.S. at 104-105
(1980); United States v. Salvucci, 448 U.S. 83, 93 (1980); see
generally United States v. Cruz Jimenez, 894 F.2d 1, 5 (1st Cir.
1990) ("Demonstration of a [legitimate expectation of privacy] is
a threshold . . . requirement, and analysis cannot proceed
further without its establishment.") (emphasis added) (footnote
omitted).9nn
In the present case, where no crew member asserts a
possessory or proprietary interest in the vessel itself,10 the
establishment of a "legitimate expectation of privacy" turns upon
two inquiries. First, we inquire whether there is any "long-
standing social custom" which would substantiate a reasonable
expectation of privacy on the part of the crew. See, e.g.,
Minnesota v. Olson, 495 U.S. 91, 98-99 (1990) (houseguest's
expectation of privacy); O'Connor v. Ortega, 480 U.S. 709, 717-18
9 Accordingly, I do not discuss the court's "probable cause"
determination.
10 As the crew members presented no claim or evidence that their
proprietary or possessory rights were violated by the seizure, we
need not address separately their right to challenge the "sei-
zure" of the vessel. Though the right to contest a "seizure"
does not invariably require that the moving party demonstrate a
"reasonable expectation of privacy" in the place where the
seizure occurred, see Soldal, 113 S. Ct. at 545-46, at the very
least the moving party must demonstrate a "possessory interest"
in the property seized. See id. at 543 (quoting Jacobsen, 466
U.S. at 113).
-23-
(1986) (public employees). Second, absent any such "longstanding
social custom," we inquire whether the crew members had the right
to exclude intruders from the area in or through which on-board
access could be had to the property seized. Compare United
States v. Morales, 847 F.2d 671, 672 (11th Cir. 1988) (recogniz-
ing crew's Fourth Amendment right to challenge search of hidden
compartment, since authorities gained access to hidden compart-
ment through crew's private quarters), with United States v.
Lopez, 761 F.2d 632, 635-36 (11th Cir. 1985) (recognizing no
Fourth Amendment right in hidden compartment, where authorities
gained access through "common area" on deck of ship); United
States v. Sarda-Villa, 760 F.2d 1232, 1236-37 (11th Cir. 1985)
(recognizing no Fourth Amendment right in hidden compartment
underneath seats in main cabin of vessel).
The contraband seized from the vessel in the present
case had been hidden in a hollowed-out compartment within a
structural beam running beneath the engine room. Unbeknownst to
the Coast Guard, the secret compartment in the beam was accessi-
ble through the engine room.11 See, e.g., United States v.
Marsh, 747 F.2d 7, 11 (1st Cir. 1984) (engine room as "common
area"); United States v. Stuart-Caballero, 686 F.2d 890, 891-92
(11th Cir. 1982) (same), cert. denied, 459 U.S. 1209 (1983). Of
course, it is clear that no "longstanding social custom" confers
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-
on crew members an "expectation of privacy" in the engine room or
other "common areas" of a vessel. See United States v. Arra, 630
F.2d 836, 841 n.6 (1st Cir. 1980) ("areas subject to a safety
inspection, such as the engine room . . . are places where . . .
the crew of a vessel would have little if any expectation of
privacy"); see generally, e.g., United States v. Green, 671 F.2d
46, 53 (1st Cir.), cert. denied, 457 U.S. 1135 (1982) (noting
diminished expectation of privacy on maritime vessels). It is
possible, as the majority suggests, that the master may have an
expectation of privacy from unauthorized official intrusions in
the engine room, or elsewhere aboard the vessel. See slip op. at
13-14; see also United States v. Aikens, 685 F. Supp. 732, 736
(D. Hawaii 1988) (master's "total control is consistent with the
recognition of a privacy expectation which emerges from such
authority"), rev'd on other grounds, 946 F.2d 608 (9th Cir.
1990); see generally 1 Martin J. Norris, The Law of Seamen
25:1 et seq. (4th ed. 1985 & 1993 supp.) (discussing scope of
master's authority aboard ship). But crew members cannot base an
asserted "reasonable expectation of privacy" on that of the
captain, even though, as coconspirators, their subjective inter-
ests in preventing governmental access to the hidden compartment
and its contents may have 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 the second inquiry, it is clear that admi-
ralty law confers no right whatever upon crew members to exclude
either the master, the Coast Guard, or one another, from common
areas such as the engine room, let alone from the interior of a
structural beam. The master alone possesses such a right, as the
fiduciary representative of the vessel owner. See 1 Norris,
supra, at 14:8. The crew's authority is derivative of the
master's authority, and exercisable pursuant to the master's
command or the command of his delegate or lawful successor. See
id. at 14:8, 25:16. As the Supreme Court stated in Southern
S.S. Co. v. N.L.R.B., 316 U.S. 31, 38 (1942), "[the master] must
command and the crew must obey. Authority cannot be divided.
These are actualities which the law has always recognized."13
Contrary to the majority's suggestion, a "reasonable
expectation of privacy" on the part of the crew is neither
legitimate expectation of privacy for Fourth Amendment purposes
if he has either a supervisory role in the conspiracy or joint
control over the place or property involved in the search or
seizure"); Alderman v. United States, 394 U.S. 165, 171-72 (1969)
(rejecting "derivative standing" for coconspirators under Fourth
Amendment); Soule, 908 F.2d at 1036-37 (same); Bouffard, 917 F.2d
at 675-76 & n.6 (tracing the successive demise of various theo-
ries of Fourth Amendment "standing," including "automatic,"
"derivative," and "target theory" standing).
13 Nor would the mere fact that the master may not have exer-
cised his authority to control access to a particular area of the
vessel mean that the crew possessed an "objectively reasonable
expectation" that the master would not do so in the future. In
any case, the burden of proof remains squarely on the crew to
assert that the master has renounced such authority. Rawlings v.
Kentucky, 448 U.S. 98, 104 (1980); Bouffard, 917 F.2d at 675
(quoting Rakas v. Illinois, 439 U.S. 128, 131 n.1 (1978)). The
record contains neither argument nor evidence suggesting an
actual renunciation or delegation of the master's shipboard
authority in this case.
-26-
reasonably inferable nor automatically enlarged simply by virtue
of the small size and intimate nature of the vessel. An automo-
bile is much smaller than a 43-foot fishing boat, yet automobile
passengers, qua passengers, have no "reasonable expectation of
privacy" even in the readily accessible contents of the glove
compartment or the open area beneath the passenger seats. See,
e.g., Rakas, 439 U.S. at 148-49; see also United States v.
Lochan, 674 F.2d 960, 965 (1st Cir. 1982).
Finally, but not least importantly, these defendant
crew members never asserted a reasonable expectation of privacy
based on the size and intimate nature of the vessel. Under
governing law, therefore, the record is wholly insufficient to
suggest, let alone establish, that the warrantless search of the
secret compartment in the structural beam intruded on a "legiti-
mate expectation of privacy" of either crew member. Rakas, 439
U.S. at 143. The best that can be said is that, even assuming
its validity, the theory of Fourth Amendment "standing" relied on
by the court today is not implicated by the present record nor by
the district court's ruling.14
The egalitarian concerns animating the court's ruling
that captain and crew deserve the same right to redress the
14 Since the government directly challenged defendants' "stand-
ing" 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-
challenged governmental intrusion though foreclosed by prece-
dent, are superficially compelling. As the court says, "the
captain is the person most likely to be trusted with the knowl-
edge of the presence of contraband, and is also the most likely
leader of the criminal enterprise." Slip op. at 15 n.6. Thus,
for the challenged evidence to be ruled excludable at the behest
of the captain, but not the crew, may appear unfair at first
blush. But these concerns are illusory in the context of the
appropriate Fourth Amendment inquiry: whether each individual
crew member demonstrated a legitimate expectation of privacy in
the invaded place or a proprietary or possessory interest in the
evidence seized. The Fourth Amendment exclusionary rule simply
is not designed to ensure "equitable" outcomes, but rather to
safeguard expectations of privacy that society is prepared to
recognize as reasonable.15 To that end, the right to invoke
the exclusionary rule is restricted to individuals who demon-
strate an unlawful governmental intrusion upon an expectation of
privacy that society is prepared to recognize as reasonable. See
Rakas, supra; Alderman, supra; see also 4 Wayne R. LaFave, Search
& Seizure, 11.3(i) at 361 (2d ed. 1987) ("[g]uilty persons, of
course, are sometimes acquitted as a consequence of the suppres-
sion [of unlawfully seized evidence], but to conclude that still
other guilty persons must likewise be acquitted because joined in
15 Of course, the limited role and authority of crew members may
at times be relevant to a "sufficiency of the evidence" chal-
lenge. See, e.g.. United States v. Steuben, 850 F.2d 859, 869
(1st Cir. 1988); United States v. Bland, 653 F.2d 989, 996-97
(5th Cir. 1981), cert. denied, 454 U.S. 1055 (1981).
-28-
crime or trial with the first group is to bestow upon them a
'windfall to which they are not justly entitled.'") (citation
omitted).
I respectfully dissent from the holding that the Fourth
Amendment rights of the defendant crew members were violated.
-29-