United States v. SmithUnited States v. Smith
Plaintiff-Appellant, the United States of America, appeals the district court‘s suppression of evidence supporting drug charges brought against Defendants-Appellees Jesse James Smith and Keisha L. Smith. For the following reasons, we REVERSE the district court‘s ruling granting Defendаnts’ motion to suppress and REMAND for further proceedings.1
Defendants-Appellees Jesse James Smith and Keisha L. Smith (“the Smiths“) took a one-week cruise aboard the M/S Celebration from the Port of New Orleans to several Caribbean destinations, including Jamaica. This cruise, conducted by Carnival Cruise Lines, began on September 17, 2000 and continued until September 24, 2000. In order to expedite the off-loading of hundreds of passengers when cruise ships return to port, Carnival Cruise Lines regularly makes passenger manifests available to the United States Customs Service (“U.S. Customs“) once a ship is underway. U.S. Customs searches the manifests for any indication that narcotics smugglers are aboard.
In this case, U.S. Customs Inspector Mike Powell (“Inspector Powell“) reviewed the passenger manifest for the M/S Celebration and noticed that the Smiths had profiles typical of narcotics smugglers. Jesse Smith had a prior conviction and was on parole at the time.2 Keisha Smith had traveled by plane to Jamaica just four months before the cruise. The Smiths paid cash for their cruise tickets shortly before departing. Additionally, the ship‘s Caribbean destinations, particularly Jamaica, are known
In the early hours of September 24, 2000, the final day of the cruise, the M/S Celebration returned to New Orleans. Its passengers had been instructed to leave their luggage outside their rooms the night before and to vacate their rooms by 8:00 a.m. Inspector Powell and other inspectors boarded the ship at 6:00 a.m. The inspectors requested the records for the Smiths’ cabin from the ship‘s purser‘s office. The inspectors learned that although Jesse Smith‘s “sign and sail” account4 showed frequent use until the ship left Jamaica, the account remained inactive after that time, indicating to inspectors that the Smiths remained in their room.5 Moreover, the Smiths placed a call or calls costing $142.50 to a single number in Jamaica on the day the ship arrived in Montego Bay.
On October 19, 2000, the Smiths were charged with conspiracy to import at least five kilograms of cocaine on board a vessel in violation of
II. Standard of Review
In an appeаl of a ruling on a motion to suppress, this court reviews a district court‘s factual findings for clear error and its legal conclusions de novo. United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). Whether there was reasonable suspicion for a search, a legal conclusion, is reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). At all times during this analysis, we view the evidence in a light most favorable to the prevailing party, i.e., the Defendants-Appellees. Jacquinot, 258 F.3d at 427. This court reviews any arguments not raised before a district court at a suppression hearing for plain error only. United States v. Kelly, 961 F.2d 524, 528 (5th Cir. 1992).
Generally, routine searches at U.S. borders, or the functional equivalent of a border,8 аre reasonable under the Fourth Amendment and do not require a search warrant, probable cause, or even an articulable suspicion. Cardenas, 9 F.3d at 1148; United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). This court has held, however, that some extremely intrusive border searches are not “routine” and must be predicated upon reasonable suspicion of criminal activity. See, e.g., United States v. Sandler, 644 F.2d 1163, 1166 (5th Cir. 1981) (noting that border strip searches are not “routine” and require reasonable suspicion“). Citing a case from the Ninth Circuit9 and a case from the Eastern District of Louisiana,10 the district court found that “a search of a passenger‘s cabin aboard a ship is not routine given the intrusive nature of the search.” Smith, 2000 WL 1838708, at *1. “Accordingly, even in the context of a border search, the search of private living quarters on a
On appeal, the Government has changed its tune and now argues that because this is a routine border search, reasonable suspicion is unnecessary. The Government failed to present this argument to the district court. Under these circumstances, the district court‘s application of the reasonable suspicion standard is subject to plain error review. Kelly, 961 F.2d at 528 (adopting the plain error standard when considering “an argument that the Government failed to raise at a suppression hearing“). This deferential standard of review dictates that before this cоurt can correct an error not raised at trial, there must be (1) an “error,” (2) that is “plain,” (3) that “affect[s] substantial rights,” and (4) that “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993) (internal citations and quotations omitted). While it may well be the case that applying a reasonable suspicion standard to the search of the Smiths’ cabin at the functional equivalent of a border is plain error, we need not decide the issue. Our determination that reasonable suspicion existed in this case assures that the district court‘s error did not affect the Government‘s substantial rights or the fairnеss, integrity, or public reputation of judicial
IV. Reasonable Suspicion
Reasonable suspicion entails “some minimal level of objective justification” that consists of “more than inchоate or unparticularized suspicion or ‘hunch,‘” but less than the level of suspicion required for probable cause. United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal citations and quotations omitted). Reasonable suspicion must be based upon “specific facts which, taken together with rational inferences therefrom, reasonаbly warrant an intrusion.” Cardenas, 9 F.3d at 1153. We consider the totality of the circumstances in determining whether reasonable suspicion existed at the time of the search. Id. at 1148.
In this case, U.S. Customs inspectors uncovered numerous facts raising the suspicion that the Smiths were involved in narcotics smuggling. First, the Smiths took a cruise bound for Jamaiсa. At the suppression hearing, Inspector Powell testified that Jamaica is a transit point for Colombian cocaine and heroin bound for the United States. Inspector Powell also indicated that Jamaica is a source country for “quite a bit” of marijuana that comes into the United States. Second, Keisha Smith traveled
Finally, Inspector Powell argues that the Smiths’ “sign and sail” account raises suspicion. Before docking in Montego Bay, Jamaica, the account “showed a consistent pattern of behavior” similar to that of most cruise passengers. The “sign and sail” account documented that the Smiths purchased drinks from various bars throughout the ship at regular intervals. After leaving Montego Bay, the Smiths’ “sign and sail” account showed no further activity, suggesting to inspectors that the Smiths remained in their room for the duration of the cruise. In cross-examination, Inspector Powell admitted that after leaving Montego Bay, the balance in the Smiths’ “sign and sail” account had dropped to zero. The district court states that this fact is “devastating to the Government‘s position” because “the most likely inference [is] that all activity ceased on the account after September 20th because the deposited funds were exhausted.” Smith, 2000 WL 1838708, *3. We must draw all reasonable inferences in favor of the Smiths, and the zero balancе on the account reasonably explains the lack of further activity on that account. Thus, the fact that account activity ceased after leaving Jamaica does not raise any suspicion and does not support our conclusion of reasonable suspicion. However, bеcause the
In United States v. Sokolow, 490 U.S. 1 (1989), the Supreme Court confronted facts similar to thosе in the instant case. In Sokolow, the defendant and his accomplice made a round-trip flight to Miami from Honolulu with tickets purchased the same day of the flight. Id. at 4. After the defendant paid $2100 for the two tickets from a roll of $20 bills, the airline ticket agent notified the Honolulu Police Department of the suspicious transaction. Id. Further investigation revealed that the defendant traveled under a name that did not match the name under which his telephone number was listed, that he stayed in Miami for only forty-eight hours, that he appeared nervous during his trip, and that he and his companion did not check any of their luggage. Id. at 3. These facts, сoupled with the knowledge that Miami is a source city for illicit drugs, led Drug Enforcement Administration agents to search the defendant‘s luggage when he returned to Honolulu. Id. The search yielded 1063 grams of cocaine. Id. Reversing the Ninth Circuit, the Supreme Court found that although “[a]ny one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel[,] . . . taken together they amount to reasonable suspicion.” Id. at 9.
For these reasons, we find that thе totality of the circumstances in this case creates a reasonable suspicion of criminal activity. Thus, assuming arguendo that reasonable suspicion was required, the search of the Smiths’ cabin was valid. The district court‘s suppression of all evidence seized pursuant to the search was errоneous.
Benavides, Circuit Judge, concurs in the judgment only.