United States v. Gerald Randall Whitaker and Edward Joseph Fitzpatrick

COLEMAN, Before RUBIN, GEE and Judges. Circuit GEE, Judge: Appellants Whitaker Gerald and Edward Fitzpatrick appeal their convictions of mari- juana importation with in- complains tent Each distribute.1 about and warrantless search of their vessel and a reference at trial to their si- lence receipt after аrrest and of Miranda warnings. Fitzpatrick additionally urges co-defendant’s out-of-court declara- defendant, Gaetano, appealed. but has not 1. A third Donald was also convicted used him cation. One of the officers strong smelled a impermissibly tion was odor, he thought and another smelled mari- is insufficient evidence and that there juana. requested When boarded and Reject- importation conviction. sustain his registration, merely shrugged. Whitaker finding it contentions and ing the former After an officer observed residue latter, we affirm. unnecessary to reach the deck, opened, the cabin door was 9,098 revealing pounds marijuana. Stop The and Search. Appellants argue that United States On December suppressed should have been as evidence patrolling the waters officers Customs (1) because there had been neither Miami, Florida, sighted a 42-foot around (2) stop/search, cause to nor sufficient evi- coast, three miles off the yacht two or dence make highly probable to it that toward land. As the ‍​‌​​​​​​‌‌​​​‌​‌‌​‌‌​‌​​​‌‌​​‌‌‌​‌‌​‌‌​​‌‌‌‌‌‌‌‌‍boat heading north foreign vessel had come from waters and Channel, the officers no- Biscayne neared subject was thus to search under the “func- “riding that it was low in the water” ticed equivalent tional of the border” doctrine. big wake. The boat bore making and bow We need not address these contentions in port designation nor home neither name light of our recent in United States registration its numbers on a and carried Freeman, 579 F.2d 942 Cir. Though a window. sign posted inside which ratified an additional basis for this boats, is normal for new it is practice latter stop.2 In Freeman we reviewed the statu- 15-year for a old boat such as abnormal tory authority for and fourth amendment yacht this. The windows of the stop reasonableness of the and search of a closed, suspi- the curtains drawn. Made large sailboat off Miami. The boat was circumstances, by cious these curious sighted first outside the three-mile territo- request computer for a officers radioed intercepted rial limit and was about 2.8 check on the boat’s numbers. In the mean- miles Recоgnizing from Florida coast. time, yacht the customs boat followed the the “substantial distinction between a land- Channel, Biscayne observing into that locked vehicle and a nautical vessel” for handling sluggishly, another appeared to be purposes amendment and the histori- heavy indication оf a load. When the com- cal latitude accorded in involving situations up possible check turned four “hits” puter latter, 1581(a) we held that 19 U.S.C. § Lawson, the officers with the name William provides constitutional authority for cus- They pulled alongside officers, decided to board. toms even in the absence of “a (Whitaker) captain suspicion,” and advised stop modicum of vessels for check would like to board and identifi- document checks in “customs waters.” See, Supreme g., States, 2. We note that the recent Court deci boats. e. Carroll v. United sion, Illinois, - U.S. -, (1924); Rakas v. 69 L.Ed. 543 (1978), away States, 58 L.Ed.2d 387 does Arch v. United 13 F.2d 382 standing 1926). sep “protects as a notion of fourth-amendment Since the fourth amendment analytic inquiry. appellants people, places,” Both arate would Katz v. United standing” 347, 351, challenge have had “automatic superseded precedent. implicit recognition search under the Their in these cases is or, Rakas, standing pre may as transmuted that at least some those aboard vessels liminary reasonably pos expect degree privacy. Special issue of substantive whether each sessed, circumstances, boats, autos, in the an interest which characteristics as of have led dеsigned protect, however, differently, courts to the fourth treat them from unlitigated proce analy- went below. Because of this houses and offices in fourth amendment because, Rakas, ses, Carroll, posture supra; Lewis, dural even under Cardwell v. perhaps captain (1974), though could assert suffi Whitaker as S.Ct. interests, pretermit lately protectable distinguished we cient we have boats from cars inquiry proceed purposes. Rakas to a consideration for certain United States v. Free- man, legality pass 1978); of the search. We note ‍​‌​​​​​​‌‌​​​‌​‌‌​‌‌​‌​​​‌‌​​‌‌‌​‌‌​‌‌​​‌‌‌‌‌‌‌‌‍in however, ing, Ingham, the fourth amendment has Stаtes v. long applicable been considered to those search, difficulty policing ever. The how the ocean facts of the instant ever, frontiers, issue not addressed aspects impracticality stopping raise of an ves- are defined waters” water, Freeman. “Customs designatеd point sels at a in the ves 1401(j), as to American in 19 U.S.C. detention, § brief and routine nature of the leagues sels, waters within four as “the [12 powers historically granted the broad of the United of the coast nautical miles] to customs officials —these factors continue 1581(a), hand, on the other Section States.” finding to counsel a the officers acted authority to “board . grant purports reasonably, constitutionally, and thus in ex- any place vehicle at In the vessel or ercising statutory authority to detain customs or within simple for a document check. added). Because the (emphasis watеrs.” initially It be that had the officers within clearly occurred so Freeman sighted waterways this vessel on inland waters, there was no need to deter frequented by many which are vessels hav- amendment degree to what the fourth mine connections, ing apparent customs no this geographical stоps limitations on may place balance would have been struck different- 1581(a). pursuant to section On the made case, however, of this ly.3 On facts we bar, however, we must facts at determine complex issue. need not address this or a more restrictive rule whether Freeman Instead, that 19 simply we hold U.S.C. stops which occur within the coast governs 1581(a) provides sufficient and constitu- line, § coastwise of “customs waters.” We that, vessels checks of ves- initially authority hold at least as to tional for document waters, within customs the fourth sighted waters. sighted sels in customs prohibit does not document аmendment Having determined that the officers suspicion,

stops in the absence reasonable right yacht to board the and thus had probable or cause. suspicion, position “plain to be in a to have a right analysis by noting our that begin We deck, marijuana residue on the view” have under Freeman the officers could they probable we find that had cause for yacht when it stopped Whitaker’s was first was occur believing illegal smuggling that waters, sighted out in customs even absent req be ring. exigent If circumstances reasonably the indicia that aroused their here as well. We uired,4 they present are suspicions. The officers chose instead to the automobile line think the better view of in a more re- exercise discretion a conclusion of cases is that rest on fashion, investigating strained further expectation privacy” a “diminished computer check. time By these fea Many the use of cars. attends them, passed results reached v. in United States Chad tures identified waterways, technically beyond into inland wick, 1, 12-13, 53 433 the “customs waters” dealt with in Free- contributing (1977), as to that L.Ed.2d 538 dictating All of the man. considerations to boats. expectation apply equally lessened finding that thе Freeman was rea- small, vessels, are big and Large and areas of prohibited by sonable thus not anyone passing plain amendment how- view of present, remained within denied, instance, Williams, (9th 1976), 3. For United States v. 667 Cir. cert. that, (1978). See Cir. we ruled Tilton, cause, probable apparent- F.2d absent warrаnt or also United States v. 534 unseaworthy ly houseboat in a moored marina open four miles from the seas was insufficient- ly legiti- with connected customs concerns for a Fogelman, F.2d 4. See United States v. boarding 1581(a). mate 1978) (both probable search under § 1171-72 ap- ‍​‌​​​​​​‌‌​​​‌​‌‌​‌‌​‌​​​‌‌​​‌‌‌​‌‌​‌‌​​‌‌‌‌‌‌‌‌‍in addition that required note the Ninth has exigent for cause and circumstances plied car); Almeida-Sanchez v. United valid warrantless search of Weinrich, 491-94 1581(a) restrict 1978) finding occasions vessel (upholding § a boat search Stanley, circumstances). searches. States v. cause and by; regis- only are was a required close boats be boat hitchhiker tered, regulatory and various other involved. After direct examination was concluded, obeyed. Boats safety requested restrictions must be defense counsel a mis- trial, sub- claiming testimony that venture into waters are violated ject boarding for a check and documеnt defendants’ fifth privilege safety inspection,5 while vessel reason- judge self-incrimination. The trial thought ably foreign to have come from ordered testimony stricken from the gave jury waters must submit full customs record and a cautionary in- cars, however, search. As with persons struction. There was no othеr reference to heightened might expectation pri- during have a cross-examination, silence trial. On as vacy to certain areas of a boat. The the customs officer even testified about ad- living quarters of the on oceango- crew ditional statements: Whitaker had said thе tanker, ing a locked compartment belonged boat to him and not the Larson boat, bridge possible are examples up whose name turned in the computer check; come to mind. It persons be that have Whitaker had also claimed he found heightened expectation such a person- as to on an island in the Bahamas. placed al effects the cabin of a sizeable Though process due forbids the yacht. Because record has not been prosecution to use evidence of a defendant’s developed analytic lines, along thesе how- post-arrest, post-Miranda warning silence, ever, we cannot sure whether partic- this either for impeachment substantive or pur ular cabin properly should be analogized to 610, poses, Doyle Ohio, v. 426 76 U.S. S.Ct. living quarters closed the public or to 2240, 49 L.Ed.2d 91 we have found passenger areas а car. The undoubted some violations of principle this to be only presence of exigent circumstances which at See, g., harmless error. e. United States v. times render valid even searches of areas of Sklaroff, 552 1977), F.2d 1156 cert. relatively great privacy6 allows to up- us denied, 1009, 434 U.S. 98 S.Ct. 54 regard to a this search without hold L.Ed.2d (1978); 751 United v. Davis, States analysis. thoroughgoing Chadwick (5th Cir.), denied, 583 cert. 431 U.S. II. Testimony about Following Silence Mi- (1977). Sklaroff, instance, In the wit Warning. randa ness spontaneously blurted out that the de In questioning one arresting cus- fendant had declined to make a statement trial, toms officers at prosеcutor the in- after the warnings. Cautionary instruc quired whether the defendants made had tions were given, no further reference to any statements following Miranda warn- made, was silence and the evidence of ings. that, The officer first responded “For guilt was overwhelming. Our is case simi all practical рurposes made state- no lar. Though the witness’ reference to si ments,” but testify then went on to about lence was in response to a prosecutorial certain statements question, defendants prosecutor may well have ex made after receiving rights. They pected respond witness to by recounting each had person that a stated actually statements made. The witness’ Freeman, 5. United v. during States 579 F.2d 942 pursuit robbery circumstances sus Odom, pect); Under United v. 526 Carter, States United States v. may F.2d 339 a document check Cir.), denied, cert. validly entry cargo hold of include (1978) 57 (exigent L.Ed.2d 1121 circum verify vessel to carved in the main the numbers may justify entry stances of a house beam. officer given with warrant before he has occu pants opportunity respond to his notice of See, g., Hayden, e. v. 87 Warden authority purpose). (1967) (warrantless S.Ct. justified search house because open four milеs from ‍​‌​​​​​​‌‌​​​‌​‌‌​‌‌​‌​​​‌‌​​‌‌‌​‌‌​‌‌​​‌‌‌‌‌‌‌‌‍seas.” The court a misstatement —as was to silence reference boarding of a vessel testimony. there held his further clear became apparent there is no given, were “about which Cautionary instructions law “highlight” suspicion on” or concern or violation” must not “focus did prosеcutor warrant, See way. or premised on a to silence the reference Davis, supra. In view of “Suspicious v. cause. circumstances” proper- justify was finding that the document found insufficient on at admitted, guilt evidence of ly check. overwhelm- count was

least Freeman, v. in United States thеrefore, hold, this isolated ing. 942, dealing 5 Cir. beyond a reasona- was harmless statement officials to board a authority of customs ble doubt. waters, categor- is equally vessel in customs in its assertion that not even “a modi- ical finally com Fitzpatrick Appellant required justify is suspicion” cum of de- testimоny the customs officer’s about plains boarding tention and of United States marijua they found the Whitaker said Williams 1581(a). under 19 vessel U.S.C. § that, as to argues He on the Bahamas. na opinion. is not mentioned in the later him, hearsay this evidence is inadmissible language of these cases is Because also, did nоt take the since Whitaker inconsistent, although their actual results stand, right of his to confront a violation against him under Bruton by pointing be rationalized to factual the witness 1620, differences, directly we should confront the (1968). objection relationship was of their when it question No be- 20 L.Ed.2d trial, however, and we nеed not unavoidable. review is made at comes Such unnec- appeal essary assuming stringent the issue on because here. Even address of Williams Fitzpatrick’s importation convic apply, boarding relevant to standards is to only. justified by tion His sentence on that count of the defendants’ сoncurrently coupled with his sentence on cause with cir- run count, for which is pulled his conviction cumstances once the customs officers challenged except alongside marijuana. as to the fourth and smelled Doyle facts, issues addressed same added to the residue discretiоn, Exercising view, above. we de in plain found validated the ‍​‌​​​​​​‌‌​​​‌​‌‌​‌‌​‌​​​‌‌​​‌‌‌​‌‌​‌‌​​‌‌‌‌‌‌‌‌‍subse- challenge cline to reach the merits quent search. It is on that basis that I importation count. stop, boarding, would hold the and search constitutionally permissible, the vessel AFFIRMED. affirm the denial of the would defendants’ suppress. motion to RUBIN, Judge, ALVIN B. con- curring part in II and in the result reached part

in I: part opinion.

I concur in II of the How-

ever, language part I find the I unneces-

sarily expansive I reach the same result channel.

by navigating a straitened language

The broad Williams, 1977, 544 5 Cir. not, suggested by the as is apparently to “an un-

majority, restricted a marina houseboat moored in

seaworthy

Case Details

Case Name: United States v. Gerald Randall Whitaker and Edward Joseph Fitzpatrick

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 4, 1979

Citation: 592 F.2d 826

Docket Number: 77-5526

Court Abbreviation: 5th Cir.