United States v. Thomas A. Warren, John L. Warren, Jr., Des. E. Schick and David Defina

fail, regardless must contention under other might possibly have America, merit UNITED STATES v. United Chatwin Plaintiff-Appellee, circumstances. 90 L.Ed. contrary. In (1946), does not hold WARREN, Warren, Thomas A. John L. showing the victim case, there was Jr., Des. E. SCHICK and David free to leave if She was was restrained. DeFina, Defendants-Appellants. desired, here. contrary to the facts she No. 75-4368. argument, Contrary to defendant’s Appeals, variance between the indictment United States Court of there is no Although contends Fifth defendant Circuit. proof. kidnapping was to dis purpose Aug. supports problems, proof marital cuss held the vic that defendant the indictment involuntarily purpose fright for the

tim abusing, handcuffing, mis

ening, physically assaulting her. The fact that

treating, and purpose get was to her to dis

his ultimate not eliminate their affairs does

cuss marital criminality the unfortunate means

from sought purpose. he to achieve that

which asserts,

Finally, defendant that 18 1201(a) vague applied as'

U.S.C.A. §

overbroad. The “otherwise” in the word.

statutory requirement kidnapping otherwise,”

be “for ransom or reward or he

says, is insufficient and too indefinite to intelligent

warn an man that the statute

proscribes intraspousal “kidnappings.” The a reasonable

statute is sufficient inform taking any person,

person that will, handcuffed, against, her

gunpoint, Carolina, there to

from Florida North her to a bed and remove her

handcuff escape, pro so that she will not

clothes regardless relationship

scribed

parties. The fact that the victim was an wife,

estranged to whom a was to divorce event, granted days a few after the up

should cleared for defendant might

vagueness per have otherwise prohibited by

ceived in the conduct the stat

ute.

AFFIRMED. Pearson, Miami,

Daniel Fla. (Court-Ap- S. pointed), for John L. Warren. Smith, Miami, Sky E. (Court-Ap- Fla. pointed), for David DeFina. Medof, Miami,

Alan M. Fla. (Court-Ap- pointed), for Des. E. Schick. Parsons, Chattahoochee, Stewart E. Fla. (Court-Appointed), for Thomas Warren. Eskenazi, V. Atty., Jack U. S. Jamie L. Whitten, Atty., Miami, Asst. Fla., U. S. Baccus-Lobel, Shirley Washington, C., D. plaintiff-appellee. BROWN, Judge, Before Chief THORN- BERRY, COLEMAN, GOLDBERG, AINS WORTH, GODBOLD, SIMPSON, MOR GAN, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, Judges.* Circuit of the submission of time * Judges court at the and Vance were Rubin not members of banc. en the court case TJOFLAT, Miami and Judge: picked up a Circuit small boat belonging to John Warren. was to have been used the court en comes before banc This case marijuana to unload the from power the substantial issue to review upon return to the United States. A to board search of the Coast Guard days few departure, before Cruse and beyond seas high vessels on American Schick went to the Tallahassee apartment panel A of this court limit. the twelve-mile shared shrimp- DeFina, Warren boarding American held vessel, crew, interrogation and where received from ing (Thomas DeFina vessel present) unconstitutional. Warren was search compactor trash Warren, F.2d 219 United States that was to have been used to compress the 1977). We reverse. marijuana. compactor plastic and 300 bags placed Seas. On A the four defendants jury convicted the eve of departure, DeFina provided a marijuana conspiring import into boat placed small that was also on board violation of 21 U.S.C. and was to have been used the to load (1976), transporting from the and of marijuana ex- in money of in Colombia. United States amount $5,000 re- filing report the cess of without preparations having These made, (1970), in viola- quired by U.S.C. § Cruse and Thomas Warren left Apalachico- de- Each tion of 31 U.S.C. § la, Flоrida, the in Stormy August Seas on eighteen was sentenced to months fendant They 1974. Key sailed to West where conspiracy for imprisonment import the took they on fuel and picked up John War- and marijuana to six months for the mone- ren, who towas serve navigator. as tary violation. The sentences of each de- following day they put sea for Colombia. concurrently. were fendant to run ' In the early evening August of the panel reversed convictions Coast Guard Cutter sighted Steadfast Warren, Warren, John Thomas and David Stormy Seas as she sailed southward be- DeFina. affirmed the conviction Des tween Haiti and Cuba the Windward granted, Schick. En banc review was but Passage. The Steadfast hailed Stormy only as to Thomas and John We Warren. her Seas and told for prepare boarding. panel’s reverse decision the War- point approximately At a 700 miles from panel’s rens. The affirmance of Schick’s Stormy the United Seas received conviction and its reversal of DeFina’s con- including party three Coast offi- viction are left undisturbed. Miller, cers: Lt. who charge was boarding Ryan, party, Ensign and First

I. Facts Quartermaster Accompanying Class Tuck. The substance a conspiracy case is Agent were Special these officers Battell of import from Colombia into the United Drug Agency Enforcement Agent and approximately marijua- ten tons of Wallace of the Customs Service. na. The Government’s chief was witness Cruse, an coconspirator. John unindicted Lt. Miller introduced himself and the oth- Schick, friend, He ap- testified a close boarding party er members of the and him in proached early summer of 1974 asked to see the master of the John vessel. captain and asked him to the shrimping the captain, Cruse identified himself as and Stormy vessel to make the run. Seas Cruse ship’s Miller asked for Lt. enrollment subsequently and agreed, he met with produced papers. papers, Cruse and Lt. (with Warren least Thomas twice Schick they not indicate Miller noted did attending) to the details of discuss the ven- for foreign Seas bound ture. port. Following customary Coast Guard inquired procedure, Agent Battell A few weeks whether departure before Cruse, aboard, Colombia, were any firearms Stormy Seas for Thomas Warren’s residence Warren stated that were. He Schick drove John there led suspect lace “the purpose trip and Bat- of this Agents Wallace Ryan and Ensign going bring .22 to be to back narcotics.” Id. at quarters where a cali- the crew’s tell to money рurchasing 77. He reasoned that pistols produc- were two .38 calibre bre and forth, might be on board. Id. guns brought were the narcotics When the ed. Therefore, Warrens, why Warren he asked Cruse and Battell Thomas Agent asked fantail, board, gathered were on the whether reply and in his he who guns were on Thomas they any money of the cruise was to on board. purpose stated “couple had a America. Rec- Warren answered that he in land in South speculate Agent Wallace asked ord, According to the testimo- thousand dollars.” vol. at 80. answer, Battell, what he meant and Thomas Agent during this conversa- ny of $5,000.” replied, “maybe Agent evinced some confu- Warren Thomas Warren tion asked, whether he had more than “What’s this all Wallace asked Warren sion. that; was, $7,000.” “maybe remarked, reply in this “We are all about?” then asked whether Agent 214. Wallace together.” Id. at been declared. Thomas Warren money had Ensign Ryan testified Agent Wallace and 63-64, 39-40, 48-49, Id. at answered “no.” Agent made a “curso- Battell immediately ry search” of Agent money, Wallace asked to see the guns produced and transfer- after the him, Battell, Id. Warren led to the Steadfast. red for identification 61-62, (Wallace); (Ryan).1 Ensign Ryan quarters. at 44 to the crew’s Id. up of mari- Warren lifted the corner of a During search a small amount mattress envelopes, cabin. Ac- and removed several which he juana was discovered in Cruse’s Wallace, Agent discovery handed to Wallace. While the mat- cording Agent somewhat,” raised, prompt- additional suspicion envelopes tress were my “aroused thorough, though exposed. Agent Wallace the make a more examined en- ing him to velopes cabin. Id. him search of Cruse’s handed and realized that unproductive, $7,000. contained more than He at 61-62.2 advised possible Thomas Warren that there was a that after he had testified Agent Wallace violation, currency point and at this Agent search, questioned he Cruse conducted warnings Battell read Warren the required trip. answer- nature of the Cruse to the Arizona, Miranda v. had chartered the that the Warrens ed 16 L.Ed.2d 694 fishing diving. and Id. at Stormy Seas for pur- envelopes also stated that the John Warren Additional and cash were 62. re- fishing. Id. at 81. moved from Later, of the cruise was under the pose mattress. however, noted, envelopes containing the ab- Agent Wallace cash were discovered ice in the hold that could have in a sence of briefcase. The total recovered was 46,800 $41,500 thе Id. at 62. and preserve pesos. used to catch. Colombian Thom- hold, examining ice see fantail, he did as Warren was led back While to the which, Miller, according gear, to Lt. where John Warren and given scuba Cruse were shape.” Id. at 19. their pretty warnings “was in bad Miranda and arrested. circumstances, along con- Agent with the Wallace that These testified after these events, Cruse, of the Warrens and Cruse as flicting stories and who had volunteered assist, trip, Agent led nature of their Wal- went to the hold conduct testified, however, Agent containing that no Battell a small vial cocaine residue was 1. currency viola- also found. search was conducted until currency and the re- tion had been discovered point possession We must out that the mere Record, vol. at 87. covered. beyond the territorial of a controlled substance (three from limits of United States miles testimony Agent was corroborated Therefore, Wallace’s coast) illegal. although is not Record, Ensign Ryan vol. at 109. Cruse. marijuana small amount “aroused marijuana was found in a somewhat,” testified [Agent suspicion Wallace’s] point galley. at 44. At some in the Id drawer possession did not constitute an offense. hold, panel also Agent in the Wallace concluded that While Thomas search. “very possibly he was advised Cruse Warren’s admission to Battell exporting with mon- trouble serious $7,000 some he had was obtained in violation of asked, you going “Are for a coke ey,” the fifth sixth amendments because they were not responded that run?” Cruse Warren had not been read the Miranda Record, cocaine, “pot.” but for for going warnings prior to this admission. More- vol. at 237.3 over, it was held that because this admis- were transferred to the obtained, The defendants illegally sion had been it could not an extensive in- Subsequently, Steadfast. support subsequent search of by the Coast ventory search was conducted analysis Seas. Our leads us to the Guard, during compactor which the trash conclusion that this statement was not were plastic bags discovered behind obtained in violation of Miranda. More- in the aft hold. Additional evi- paneling over, warnings given found, including a letter dence until after produced Thomas Warren Warren from the Colombian consu- incriminating envelopes is of no constitu- complying giving late instructions tional moment because Miranda does not customs, legal pad of Thomas Colombian apply production physical evi- listing equipment to be used to load Warren denсe in this case. Since the actions of the marijuana referring to package the Agents Coast Guard and of Battell and contacts, Thomas Warren’s Colombian Wallace were within their authority and showing that he had visited Colom- passport because Thomas Warren’s admission that he just two weeks before the bia reporting violated the requirement was not set sail. gained Miranda, in violation of the evidence obtained from the Stormy proper- Seas was Opinion II. The Panel ly admissible at trial. appeal in this case panel hearing warrantless search of the noted, ruled that panel but pass upon, did not violated the fourth amend- Stormy Seas assignment of error the Warrens ruling This was founded on two ment. district court improperly admitted First, panel Agents held that theories. into evidence a statement Thomas Warren Wallace were not authorized to Battell and made at the time of the defendants’ arrest. ques- in the assist the Coast Guard either Warren, Thomas an attorney, had stated Stormy the tioning of those board Seas that he wished to represent his brother panel in the search that ensued. The or Cruse, John and and he advised them to by the any reasoned that evidence adduced remain silent. This statement was related unconstitutionally therefore agents two by Agent at trial Battell on direct examina- Second, panel the ruled that obtained. Record, 2, tion. vol. at 221. The Warrens Guard officers had no au- even testimony impermis- assert that this anwas thority inquiry beyond to extend their sible comment on their right si- remain customary safety and docu- called for a we panel’s lent. Because reverse the deci- mentation check. With all deference to the respect Warrens, sion with to the we reach we think that the Coast Guard had panel, this issue in our discussion below and find authority stop Stormy and board the the admission of the statement not violative question passengers her and to Seas rights. Warrens’ fifth amendment captain participation and that John Warren asserts two additional er- Agents Battell and Wallace did not dimin- First, upon panel rors which the ruled. authority. scope We find the ish this claims that the trial court improperly de- interrogation of the defendants while on nied his motion for severance justified by to be after Thomas board statement, circumstances of this case. Warren’s “We are all in this Record, timing. testified that this conversation took he was not certain as Cruse to the discovered, 2, currency place before the but vol. at 106-108. 1064 during shrimp boat 700 miles

together,” was elicited trial sea with the [at compactor, plastic bags, Battell. The trash and money],” examination of direct an impermissible of this state- was not comment on the that the admission panel held States, right defendants’ to remain silent. v. Id. at Bruton United ment violated n.8, agree 227-28. 1620, We with this deter 20 L.Ed.2d 476 U.S. mination as well. introduction, See United States v. (1968), in a prohibits which Dearden, (5th Cir.), 546 F.2d 625-26 trial, confession joint of a eodefendant’s denied, cert. defendant, S.Ct. when the co- incriminating the (1977); Hill, L.Ed.2d 188 United defendant refuses to take the stand. Since denied, Cir.), 508 F.2d cert. properly admissible we find this statement L.Ed.2d 672 a statement against John Warren as . (1975) Finally, panel dismissed as coconspirator during and in furtherance of merit contention Thomas without War marijuana conspiracy import into the judge ren that the trial imper made certain States, Bruton does not bar its in- missible comments during the voir dire ex Second, John Warren troduction at trial. prospective jurors. amination of 550 F.2d court violated Ped.R. contends that the trial at 226 panel’s n.7. We concur with the by allowing government Evid. 615 witness- resolution of this issue. during es to remain in the courtroom pretrial suppression hearing. panel III. Analysis judge denying ruled that erred in to exclude the defendants’ motion witness- Authority A. Boarding for the Although agree es. we the district Seas, Interrogation, erred, court we do not think this error so and the Search require prejudicial as to the reversal of the Federal law authorizes the Coast Warrens’ convictions. Guard to examinations, inquiries, make inspections, below, analysis In our we shall searches, seizures, and arrests presented. address these issues the order high seas and waters over which the We note here several determinations of the jurisdiction, United States has for the that we be sound. Both panel believe to detection, prevention, and suppression of objected Thomas and John Warren to the violations of laws of the United States. testimony by Agent admission of Battell purposes, commissioned, For such war- “shirts,” the word which ap that defined rant, petty officers may any time peared in the letter from the Colombian go on board subject vessel Warren, Counsel’s office jurisdiction, operation or to the passage containing mean cocaine.. The law, of the United inquir- address is, forget pick up my shirts word “don’t board, ies to those on examine ship’s complained from Ozzie.” The Warrens papers, examine, documents and in- testimony was inadmissible beсause spect, and search the vessel and use all they charged viola not necessary force to compel compliance. concerning panel tion cocaine. The con testimony 89(a) cluded that the admission of the 14 (1976). U.S.C. This law is § consti- light weight tutional, was in of the “harmless United States v. One 43 Foot Sail- evidence,” 226, Vessel, other 550 F.2d at we ing (5th and 538 F.2d 694 1976), Cir. agree. panel The also determined that a pursuant to its authority, the Coast Guard by jury the Government to the may apprehend statement and board any vessel of the during argument, giv rebuttal “no one has flag. American This authority plenary .you en explanation why reasonable when beyond exercised the twelve-mile lim- 4it; Tommy John Warren and Warren were on it need not be any particu- founded on sea, 4. This 12-mile limit includes the territorial three to 12 miles from the coast. The United coast, plenary power which extends to three miles from the States exercises over the territo- zone, sea, contiguous subject requirement and the from which extends rial

1065 Odom, suspicion. United v. and John larized States Warren stated that the Stormy 339, (5th 1976); F.2d 341-42 Cir. 526 United Seas was chartered fishing diving, Vessel, Sailing v. One 43 Foot 405 preserve States but no ice to catch was aboard and 879, (S.D.Fla.1975), aff’d, F.Supp. diving gear was apparently inoperative. (5th 1976). F.2d 694 Cir. The cases have According to the testimony Wal- Guard, lace, recognized power of the Coast these circumstances led him suspect having boarded a vessel of the American the Stormy Seas was on a narcotics flag, safety to conduct documentation and run and motivated him to inquire as to how Hillstrom, inspections. United money States 533 much was on inquiry board. This 209, (5th 1976), denied, F.2d Cir. cert. elicited the admission Thomas Warren 1038, 734, possessed $7,000 L.Ed.2d that he approximately Odom, If, (1977); 526 F.2d at 342. during that he registered had not upon depar- inspection, the course of such an circum ture from the United States. Thomas War- generate probable stances arise that ren’s statement apparent established an vio- to believe that a violation of United law, lation of customs large and a amount occurred, law has the Coast may of money was uncovered after he led mem- searches, evidence, conduct seize and make bers of the boarding party to the crew’s Odom, arrests. 526 F.2d at 342. quarters. The defendants and Cruse were arrested, after which Cruse confessed that boarding, interrogation, The the Stormy Seas was on a “pot” run. The search in this case come within princi these seized, vеssel was and a search uncovered ples. Coast Guard officers and the confirming evidence Cruse’s confession. agents boarded the pursuant Seas authority of section 89 to conduct a Each link in this events, chain of from safety and inspection documentation boarding search, to inventory legally look for obvious customs and narcotics vio sound. The boarding lawful, and the Record, lations. vol. 85-86. In the scope of interrogation was determined inspection, course of this the enrollment suspicion. well-founded The currency examined, papers indicated was revealed after Thomas Warren admit- destined for no ted that he it, had not registered and the foreign port. Warren, however, search that produced the evidence upon professed purpose trip to be land which marijuana conspiracy convictions Later, in investment South America. Cruse were place based took after the arrests and passage foreign may imperative, light vessels background be inter- It is unreasonably. Carmichael, just fered with See given, At precise we have to establish the Amendment, Sea with the Fourth 32 Miami context in which we decide this case. We deal (1977). power L.Rev. 56-57 boarding with the of an American vessel foreign United States over vessels the con- beyond Coast Guard the 12-mile limit. There tiguous preservation zone is fore, limited to the application this case does not involve the interests, specific e.g., the enforcement of cus- of United States law in the territorial zone or in toms and laws. See id. at 58. zone, contiguous where the Coast Guard may rely upon statutory high authority seas lie seaward of the addition territorial particular, encompass contiguous distinguish and thus In § sea we zone. those Although high subject defining authority vessels on the cases seas are of customs officers powers vessels, contiguous pursuant exercised over the to board to 19 U.S.C. safety, navigation, pollution, 1581(a) (1976), See, zones and certain within the 12-mile limit. piracy, regulations, country e.g., Caraballo, and slave-trade United States v. may sovereignty high (5th assert over the 1978); seas. See Stanley, Cir. United States v. id.; Seas, High Sept. Convention denied,-U.S. F.2d 661 cert. 2312, 2314, -, art. 13 U.S.T. T.l.A.S. No. 56 L.Ed.2d 757 seas, high 5200. To maintain order on the therefore, ‍​‌‌‌‌​‌‌‌​‌‌​‌‌​‌​​‌‌‌​​​​​‌‌​‌‌​​‌​​​‌‌​​​‌​​‌‌‍Tilton, (9th United States v. 534 F.2d 1363 Cir. charged duty each nation is with the 1976); Caraway, United States v. 474 F.2d policing its own vessels. Convention on the grounds, (5th vacated on other 483 F.2d 215 Seas, High art. at U.S.T. 2316. It was in 1973). Cir. performance duty, pursuant the of this authority of § that the Coast boarded Stоrmy the Seas some 700 miles at sea. spired the before marijuana confessed that the bales after Cruse were “pot” on a run.5 was “supported examined a finding cause to search the hold of the ‘Mar-J- light, the facts in this we think Seeing ”May.’ F.2d 342. The court noted by holding controlled our that this case is fishing gear the appeared to have been Odom, United States inoperative, that the captain of the Mar-J- case, 1976). the In that Coast Guard May had been open reluctant the hold vessel, Mar-J-May, sighted an American falsely represented the hold to be from the United some 200 miles ice, full of and that an “undetermined Straits, between Cuba and the Yucatan amount of burlap sacks in the prior without Apparently suspi- [were seen] Mexico. rear of the hold.” Id. The law court concluded narcotics or customs had been cion that as follows: violated, the Guard boarded the Mar- J-May to conduct a routine and docu- summarize, To the initial boarding and During inspection. inspec- mentation administrative inspection made tion, a officer noted Coast Guard crew of the permissible “Valiant” was fishing gear “rusty was and unused.” Id. under 14 U.S.C. Further search officer, wishing at 341. The to examine the supported was by probable cause after main-beam identification number located in the facts mentioned above became evi- hold, was told that the hold was full of dent to Chief Fieck. We therefore hold ice and that it difficult to see the marijuana seized from the “Mar- consideration, number. After some the of- J-May” properly admitted in evi- hatch, open ficer decided to and when dence, and that the district court correct- did, only he saw quantity a small of ice. ly denied the motion suppress. He entered the hold and examined the iden- Id. number, tification and at this time he no- Although we think Odom is directly on burlap bags ticed several unmarked in the here, point the defendants contend that the bags aft of the hold. The inspected, facts of this case distinguish it from Odom. 6,000 approximately pounds marijua- First, they argue that participation na were discovered. Agents Battell and Wallace in the events The court held that section 89 authorized place took on the Seas invali- boarding, regardless of whether “rea- dated the boarding, interrogation, suspicion” sonable that the contraband was search because the Coast Guard lacked au- Thus, board existed. Id. at 341-42. thority delegate powers to the agents. court found it unnecessary to determine Second, they urge that a customs regulation whether a boarding beyond Coast Guard required the boarding of the Stormy Seas to the twelve-mile limit analogous to a rov- have been founded upon probable cause. which, ing patrol, border established We find both of these unper- contentions Supreme Court United States v. suasive, and we take up them in order. Brignoni-Ponce, (1975), 45 L.Ed.2d 607 may stop vehicles 1. The Participation Agents when there exists suspicion” a “reasonable that a violation of law has occurred. The The Coast Guard is expressly authorized court determined that the events that tran- statute employ officers of federal currency containing money. 5. The arrests for the Appellant violation were Brief of John Warren, 25-26; valid. See note 17 infra. The defendants do L. Jr. Appellant Brief of question validity inventory Thomas Warren at 14. Since we find the ob- compactor, search that uncovered the trash tention of Thomas Warren’s statement not con- plastic bags, incriminating Miranda, and the trary documents. infra, see Part III. B. They merely claim that absent Thomas War- turning up money supported by search registered ren’s admission that he had not ample probable inventory cause. Since the money, which claim was elicited in viola- questioned, search is not we do not reach the Miranda, tion of cause existed to propriety. issue of its justify produced envelopes the search that carrying participation by in out its duties. The agencies agents in the boarding, statute, 141(b) (1976), provides arrests, U.S.C. interrogation, § and seizures in this Guard, part, “The Coast with pertinent in case does invalidate those actions. agency of the head of the con- the consent 2. The Regulation Customs cerned, may avail itself of such officers and press defendants a more colora employees any agen- ... of Federal argument ble upon us in their assertion that cy may helpful . . be the per- .as in regulation promulgated by the Treasury of its duties.” It is clear formance on the Department required the boarding 141(b) Agents party of section that in face Battell premised case to have Wallace were authorized its apprehension to assist the and boarding in out of carrying legitimate Coast Guard the Stormy upon functions, provided that the “heads” of the existence of regula cause. The Drug Agency tion, Enforcement and Customs 19 C.F.R. (1977), 162.3 provides § given required consent. Service pertinent part, (a) General authority. A Customs offi-

Although the recоrd does not ex cer, for purpose pressly given, examining indicate whether consent was manifest and other we think it a fair inference at documents papers least Moreover, implied examining, consent existed. it is inspecting and searching upon the party moving sup vessel, incumbent may any go time on board: press evidence demonstrate a lack of

authority acquisition. for its The defend (2) Any American vessel on the high contention, ants made no either in the dis seas, when there is cause to appeal, court or on trict consent was believe that such vessel is violating or has lacking.6 Even if the defendants had dem violated the laws of the United States that Agents onstrated Battell and Wallace 141(b) were not authorized section Officers of the Coast Guard are deemed assist the Coast Guard in its actions in this officers, customs and thus apparently sub- case, that these actions were carried out ject regulation, to this provisions two jointly bring agents is sufficient to un title 14 of the United States Code.7 aegis der the of the Coast Guard. See Bates, (5th United States provision first is 14 89(b) U.S.C. § 1976). hold, therefore, (1976), We which provides, compelled dispel appears 6. We feel what denial is insufficient to shift this burden of misapprehension Judge Fay’s proof be a dissent. to the Government. As we said in United “wrong” Fuente, The dissent terms our statement States v. De La 548 F.2d Cir.), denied, the defendants failed to contest the issue cert. 431 U.S. 97 S.Ct. cooperation whether consent (1977), 53 L.Ed.2d 249 the defense carries an given. 578 F.2d at 1086. “initial, Guard was alleging unshiftable burden of clearly The record indicates the de- proving prima some fact sufficient to make a fendants never as much as adumbrated that showing illegality. [Djefen facie . . . lacking. consent was to the con- Quite allege particular dants must least facts trary, in their en banc brief the defendants governmen which would tend to indicate some following: admit “[U]nder U.S.C. impropriety];,] general, tal . . . con 141(b), may the Coast avail § itself of clusory allegations upon suspicions based mere employees agency officers and Federal do not entitle a defendant to have evidence may helpful performance to it in the of its suppressed.” (Emphasis original.) See Nar Supplemental Ap- duties . . . .” Brief for done v. United pellants at 16. (1939). 84 L.Ed. 307 course, indicated, as we Of the defend- provisions 7. Two additional the United initially agents’ pres- ants did contend that States Code define customs officers to include is, however, ence was unauthorized. incum- They officers of the Coast Guard. are 19 bеnt the defense to show that the board- 1401(i) (1976) 1709(b) U.S.C. § and 19 U.S.C. ing illegal authority, for lack of and that provisions subjects Neither of these exist, illegality, if found would call for regulations. Coast Guard officers to customs subsequently the exclusion of evidence accompanying See note 11 infra and text. broad, unspecific obtained. The defendants’ 1068 power restrict of the Coast Guard in Guard of the Coast

(b) officers The case, to engaged, pursuant regulation at least as far as they are as insofar section, in 89(b)(2). in this authority applies by contained virtue of section of the United States enforcing any law Warrens, however, proffer The a second shall: 14, (1976). of title 143 provision U.S.C. § agents of acting as (1) deemed to be be provides, department or executive particular Commissioned, warrant, petty offi- charged establishment independent cers of the Coast Guard are deemed to be law; particular the administration when so act- officers of the customs and shall, performance of the ing insofar as regu- subject to all the rules (2) be relating to laws are duties customs con- department promulgated such lations cerned, subject regulations to issued with re- establishment independent or Secretary Treasury govern- by the of the of that law. the enforcement spect ing officers of customs. face, 89(b) appears subject section itsOn They point out that section 143 contains no 162.3 to 19 C.F.R. § Guard officers Coast 89(c) counterpart to section that would mit- enforcing are customs laws.8 they when igate requirement probable therefore, argue, that 19 defendants The imposed by analysis 162.3. C.F.R. Our § requires 162.3 Coast Guard C.F.R. § legislative of the histories of sections 143 cause to believe that a conclusion, however, and 89 leads us to the had occurred or was oc- violation customs that section 143 should not be read to im- before curring on board the pose upon powers limitations place. have taken boarding legally could Coast Guard when it boards American ves- 89(b) under section fails argument beyond sels the twelve-mile limit.9 states, 89(c), section which because of original version of section 8910 was (c) of this section are in provisions response enacted in direct Supreme .any conferred law powers addition to Court decision in Maul v. United officers, and not in limitation upon such 501, 735, (1927). U.S. 71 L.Ed. 1171 any powers conferred law H.R.Rep.No.2452, Cong., See 74th 2d Sess. officers, any or other officers of the case, In that the Court held that United States. had authority Coast Guard to seize an by enacting thirty-four section American vessel We think it clear miles from 89(c), give subject shore. The vessel had Congress intended Coast become authority available un- forfeiture because she had Guard the broadest undertaken a noted, foreign voyage being law. As we have the Coast without duly regis- der 89(a) empowered under section tered. The Court found that the Coast authority seize and board vessels of the American Guard’s derived from a statute empowering without flag high (and on the seas customs officers Coast particularized suspicion. other they cause or Guard officers because were deemed Therefore, regulation officers) the customs cannot customs to seize vessels that had 89(b) apparently subject subject Although regula- and were therefore § 8. to customs regulations Drug holding the Enforcement Coast Guard tions. Given our § 143 cannot Agency authority when' the Coast Guard diminish Coast Guard over American charged agency’s beyond limit, laws to that admin- enforces vessels the 12-mile the defend- istration, regulation no DEA we have found inconsequential ants’ contention is in this case. comparable to 19 C.F.R. 162.3. § nothing validity We intimate as to the argument might apply. defendants’ where § 143 contend, must under 9. The defendants language that because one of the § 10. The source of 89 is the Act of June § boarding purposes of the was to look avowed for obvious customs Pub.L.No.755, 49 Stat. 1820. As far as violations, Record, vol. concerned, signifi- this case is differs 74, 85-86, Guard officers were respect from § cant 89. “relating performing duties to customs laws” subject to forfeiture virtue of “by become Stat. This is the version cur- revenue, respecting the as well rently law in effect. as within customs without [the officers’] Since section 143 is the direct descendant districts.” 274 respective of the Anti-Smuggling Act of we at 737. The construed the Court stat- S.Ct. think a discussion legislative of the history provide ute to Coast Guard seizures of that Act essential to the construction of designated as beyond districts customs en- the section. This history indicates that the areas, is, beyond twelve forcement predecessors of section 143 were not intend- from the coast. miles ed powers to affect the of the Coast Guard reports, beyond As evidenced the committee e. exercised jurisdiction the primary g., Cong., H.R.Rep.No.2452, 74th 2d Sess. 2 Customs Service. In opinion, our (1936), Congress distinguishes adopted beyond and went section 143 from this case. holding of Maul to provide the Coast The Anti-Smuggling Act was ocсasioned jurisdiction Guard broad over Ameri- by the failure of repeal prohibition reports can vessels. The echoed concern diminish substantially the smuggling of li- expressed by Justice Brandéis in a concur- quor into the United States. Ficken, See ring opinion holding to Maul that the of the The 1935 Anti-Smuggling Applied Act case, upon founded as the construction Hovering Narcotics Smugglers Beyond the statute, might of a revenue enforcement be Contiguous Zone: An Assessment Under require express statutory read to authority Law, International 29 700, Miami L.Rev. for Coast Guard seizures for violations of (1975). 708 significant A part of the smug- relating laws other than those to revenue. gling trade was carried by foreign out ves- 2-4; Maul, 512-31, at Id. 274 47 sels. Under then existing United States (Brandéis, J., at 739-46 concurring). S.Ct. law, foreign vessels were immune from ar- Congress enacted the predecessor of section beyond rest the twelve-mile limit notwith- ratify 89 to power broad of the Coast standing treaties with several nations that beyond Guard to seize American vessels allowed the seizure within one hour’s sailing twelve-mile limit for the violation of any distance from the foreign coast of vessels applicable law of the United As we States. engaged in the smuggling of liquor. The demonstrate, shall section 143 is based treaty provisions were beyond unavailable different considerations. twelve miles because the United rev- States enue law had not been beyond extended Section 143 derives provisions from two that limit. id. at See 707 n. 25. Anti-Smuggling Act of 1935. Both provisions, like the section, current are defi- Congress enacted the 1935 Anti-Smug- Act, nitional. Section 201 of the Act of gling Act to expand the force of internal 5, 1935, Aug. Pub.L.No.238, 201, 49 Stat. § law to provided the limits by the treaties. 521, includes within the term “officers of H.R.Rep.No.868, See Cong., 74th 1st Sess. customs,” “commissioned, warrant, (1935). 4 The Act greatly also enlarged the petty or officer the Coast Guard.” Id. authority of customs officers to board and reiterates, verbatim, merely Section 401 search vessels and to seize contraband with- section 201 of the Act. 49 Stat. 529.11 in the enforcement area established section, however, Neither contains any lan- Act. id. at 12. See To remove ambigu- guage similar to that in 14 U.S.C. § ities as to the authority of Coast Guard subjects Coast Guard officers to customs officers to avail themselves of this broader regulations. language Such arose for the authority, Congress enacted the definitional time in section which first was enacted provisions the Act from which 14 U.S.C. of. 4,1949, Pub.L.No.207, Aug. in 1949. Act of 143 derived. § repetitive H.R.Rep.No.868, 11. Section 401 201 becausе § amend the Tariff Act. See merely provision Cong., (1935). the former amended a 74th 1st Sess. 14 Section 201 is thought, 1401(i) Act of 1930. Section (1976), Tariff 401 was now codified as 19 U.S.C. necessary applicable 1709(b) make definition (1976). § 401 is codified as 19 U.S.C. § provisions Anti-Smuggling supra. Act that did See note 7 randa, 1612; un- history of section 143 indicates U.S. at S.Ct. at de- precursors Carollo, were not equivocally that United States v. authority of the Coast denied, to affect

signed cert. 423 U.S. sailing American vessels regarding (1976). 46 L.Ed.2d 105 S.Ct. foreign vessels were areas in which beyond panel noted several circumstances regulation. juris- subject to customs led it to the conclusion that the de- over American diction of the Coast Guard fendants were custody at the time of the limit flag beyond vessels the twelve-mile questioning. The gathered defendants had holdings had been established under Seas, on the fantail of the Stormy their case, United companion Maul and its guns removed, had been boarding party Lee, L.Ed. armed, and the Steadfast stood with Congress The same that re- three guns machine that could have been sponded by enacting precursor to Maul used to restrain the Stormy Seas. Under passed Anti-Smug- of section 89 also special attending circumstances Congress Act. We think the intent of gling boarding by the Coast Guard of a vessel on Congress clear: meant that section 89 is seas, high we find that the restraint of authority define the of the Coast should the defendants in this case did not reach a beyond over American vessels Guard custody level of that would require Miranda authority limit. That allows twelve-mile warnings at the questions time the concern- boardings suspicion illegality. without of ing money were asked. Subsection c of section 89 interdicts regulations might impinge upon that that It is essential at the outset to rec Therefore, we will authority. not read sec- ognize the nature of the boarding and inter 143, tion which derives from an de- act rogation in this case. Every American flag signed expand jurisdiction Coast Guard high vessel on the seas subject is to Coast vessels, foreign over limit boarding inspection. note 4 See acting pursuant powers Guard when to its supra. Therefore, the coercive atmosphere under section 89 over American vessels be- primal is the indicium aof custodial yond Accord, the twelve-mile limit. see, interrogation, g., e. Hoffa v. United Underwriter, 433, (2d 1926), 13 F.2d 434 Cir. States, 293, 303-04, 408, 385 U.S. 87 S.Ct. aff’d sub nom. Maul v. United 274 414-15, (1966), 17 L.Ed.2d 374 generally 501, 735, (1927). 47 U.S. S.Ct. 71 L.Ed. 1171 because boardings absent are routine. The probable-cause-for-boarding require- This, course, of to say not that such ment of 19 C.F.R. 162.3 does not apply to coercive, intrusions cannot be but rou boarding in this case. tine boarding inspection Coast Guard high an American vessel on the seas does B. Issue The Miranda not create a custodial situation. Cf. United The issue we must determine is 1359, v. Thompson, States 475 F.2d 1364 whether warnings the Miranda that were (5th 1973) (routine Cir. customs search does given Thomas immediately Warren after he require warnings). Miranda See also produced the envelopes, first which con Jones, 1171, v. 543 F.2d 1173 $5,000, money tained in excess of came too (5th 1976), denied, 957, Cir. cert. 430 U.S. 97 late. panel opinion was that the (1977). Indeed, 51 S.Ct. L.Ed.2d 807 warnings should have given before to hold otherwise would the Coast require Warren’s admission to Wal warnings Guard to read Miranda to those lace possessed $5,000. that he than more every on board vessel it boarded. Apparently, the panel believed the defend must, therefore, ants to be in custody at the We ques beyond time the look tions concerning the amount money boarding interrogation each routine on course, had board were asked. Of it is case to determine when warnings the existence of a atmosphere custodial should given. have been This determina invokes the necessity warnings. for the Mi- tion requires case-by-case analysis. E. g., ther Estelle, inquiry, F.2d 1266-67 supported not have v. Alberti denied, 1975), 96 arrest. was cert. not until Thomas Cir. Warren (5th L.Ed.2d 1193 admitted that he report had failed to $7,000 a four-factor test to he claimed to employs possess probable Circuit Fifth interrogation occurred cause to believe a crime whether an had been commit- ascertain Indeed, ted arose.12 context. These factors in defendants agree. custodial in a They argue that cause to arrest (1) whether clude: search the vessel or arisen, subjective in make arrests (2) whether the existed had before Thomas Warren’s admission. conducting interroga Brief the officer tent of Appellant Warren, John L. defendant, Jr. at (3) whether 25-26 to hold the tion 28; Appellant & n. Brief of Thomas Warren of the defendant ‍​‌‌‌‌​‌‌‌​‌‌​‌‌​‌​​‌‌‌​​​​​‌‌​‌‌​​‌​​​‌‌​​​‌​​‌‌‍was subjective belief at 14 n. 9. supra. & See note 5 significantly restrict his freedom investigation ed, (4) whether the Subjective Intent of Officer. It is clear the time of the defendant at focused subjective intent of the boarding Nash, v. interrogation. United States party was to restrict the freedom of the (5th 1977); Alberti v. Cir. F.2d But, noted, Seas. as we have Estelle; Carollo, v. 507 F.2d United States alone does not render the interrogation co- denied, (5th cert. Cir. ercive. The freedom every vessel that is (1976); L.Ed.2d 105 Brown boarded by the Coast Guard is restricted to Betо, 1972); Unit the extent the vessel is not free to Montos, (5th Cir.), ed v. until inspection leave is completed. If denied, 1022, 1262, 25 397 U.S. S.Ct. cert. the intent-of-the-officer criterion is to have (1970). factors, Under these L.Ed.2d any meaning in the context of a Coast custodial situation we think it clear that a boarding, Guard then the officer must in- Agent the time Wallace not exist at did go tend to beyond the imposed restrictions money Thomas how much he asked Warren customary and boarding routine and had. Although Agent search. Wallace testified that he inquiries made the because he sus- Admittedly, Agent Probable Cause. pected purpose that the trip was to suspected testified that he that the Wallace narcotics, procure the record does not re- run. The Stormy Seas was on narcotics flect that he intended to take Thomas War- foreign port had listed no papers enrollment custody ren into point. at that destination, Thomas Warren stated but purpose pur- Subjective that the of the cruise was to Belief of Defendants. The is- land in Colombia. John Warren and sue the effect of a customary chase Coast Stormy boarding upon stated that the had been the minds Cruse Guard of those on fishing employed diving, but no ice board a vessel such as the Stormy Seas is diving equipment essentially was on board and was the obverse of the one just dis- circumstances, disrepair. in obvious These cussed. To the extent that the boarding routine, although clearly inspection sufficient warrant fur- are the defendants run, foreign possession probable 12. We note that the of more narcotics to create cause to be- $5,000 not, itself, conspiracy import a crime. The crime than lieve that a narcotics ex- report money $7,000 possession failure to is the willful isted. The would have departure many legitimate the time of from the United States. pur- been consistent with too Londono, poses See United States Gomez F.2d warrant arrest at the time the Therefore, 805, (2d 1977). Agent questions Moreover, 810 n. 7 Cir. were asked. even if we had to believe Wallace no. cause assume that there was to be- reporting provisions had been violated until going pur- lieve that the Seas was Thomas Warren admitted that he had not re- Colombia, chase narcotics in there was no indi- ported. imported cation that the narcotics were to be States, importation Additionally, into the United we do not think that Thomas is a necessary possessed approxi- charge element of admission that he the substantive Warren’s mately $7,000 sufficient, light upon conspiracy even in which the indictment was Record, generated 952(a) (1970); based. See 21 the circumstances that Wal- U.S.C. § suspicion (Count indictment). lace’s Seas was on a at 1 I of vol. case, coerced. In this it is criterion. not feel “Where the should officers are merely contemplated defendants trying clear to ascertain the facts to see if a they boarding had devised a cover because committed, federal crime has been the accu Record, that event. story used in See to be satory stage yet has not begun.” Wakak Moreover, John Cruse at 290-91. vol. san v. United F.2d 639 just after the Steadfast was testified that denied, cert. 386 U.S. the Warrens that he advised sighted, (1967). 18 L.Ed.2d 341 See generally safety inspection. The stop would be for a Miranda, 384 U.S. at 444 n. 86 S.Ct. at following colloquy: contains record 1612; Illinois, Escobedo v. WHITTEN, prosecutor:] Was [MR. L.Ed.2d 977 More you between there discussion over, the rule in this circuit is that if none Warren or Mr. Tommy either Mr. John of the other factors are present, the Coast cutter Warren after investigation is focused the defendant sighted? is insufficient to render the interrogation Just that there awas CRUSE:] [JOHN Corollo, custodial. United States v. coming, they Guard boat asked F.2d at 52-53. Estelle, See also Alberti v. wanted, they I me what told him 524 F.2d at 1267. they inspection, you checked findings Our under these factors lead us know, jackets, extinguishers. fire life to the conclusion that Thomas Warren was Thus, although Id. at 291. the defendants not due a reading rights of his at the time apparently believed that would not be the questions posited answered by Agent voyage inspec- free to continue their until Wallace. The record indicates no further completed, they tion had no rea- until questioning produced Warren they expected son to feel coerced because the envelopes that money contained in ex- nothing safety inspec- more than a routine $5,000. cess of At that time the warnings tion. given. It cannot be successfully con- inquiry The relevant is whether Thomas production tended that of these en- Warren believed the time of the velopes without prior warnings was viola- questioning, boarding and interrogation Miranda, tive of because Miranda does not gone beyond had so far the customary that apply to production physical evi- imminently subject he was to arrest. We dence. Moffett, See United States v. indicates, however, think that the record (5th F.2d 1975); Cir. that Thomas Warren believed the enter- v. Thompson, 475 F.2d prise to be viable at that time. The trial (5th 1973). Cir. Therefore, the evidence judge found responses that Warren’s derived from Thomas Warren’s admission explanation intended corroborate his that that he reported had not the money was the cruise speculate was undertaken to properly admissible at trial. Therefore, land in America.13 South we supports find that the record a determina- C. The Comment-on-Defendants’-Silence tion that Thomas not Warren did believe his Issue significantly freedom to be infringed at the questioning. time of the Agent Battell testified at trial that Investigation. Focus of Thomas Warren advised Agent Wallace’s John Warren and interrogation merely investigatory un- Cruse remain silent after their arrest. til Thomas Warren admitted that he We must determine whether the reception registered not the money. only testimony It is when of this requires reversal of the investigation shifts to the accusatory convictions in this case. We hold that it that sufficiently it is focused under this does not. judge

13. sup- The trial denied the motion to was that were made in furtherance of the press story because he voyage felt Thomas Warren’s specu- re- cover was for land sponses voluntary. Record, reasoning to be The court’s lation. vol. at 133-34. elicited That it testimony brought in issue was forth at trial during direct examination. the defendants in Government fact “stood mute or following reveals the transcript The trial privilege” distinguishes claimed [their] dialogue: cases that require defendants claim re Battell, did They proffer versal. our decision in Baker WHITTEN:]

[MR. persons when all three States, there come a time (5th v. United 1966). Cir. were read on board STORMY SEAS Baker held that it was reversible error to rights? their agent allow an FBI to testify that the de Yes, sir. requested fendant lawyer BATTELL:] “made [AGENT any con- further statement” when questioned. there first Was WHITTEN:] [MR. w,ith said, persons proven thereafter Id. at 13. As we “to have versation board? made no further statement [the defendant] was, feel, we Yes, sir, objectionable as it there BATTELL:]

[AGENT have been to comment on a was. defendant exer cising right his Constitutional hot to take What was that? WHITTEN:] [MR. the witness stand.” Id. at 13-14. In this John Warren- BATTELL:] [AGENT clearly any proof case there was absent or, correction, Warren, stated, “I the defendants made no further statements. everybody,” and re- represent want distinguish The same considerations we had in quested the other individuals present, other case the defendants Walker custody say anything. not to v. United F.2d 900 Record, 2, at 221. Defense counsel vol. 1968). Walker, In a Government witness . immediately, and there was nо fur- objected defendant, testified that he asked the “Just testimony signifi- on the matter. Most ther you get how did my credit cards?” [stolen] Agent Battell did not relate John cantly, Id. at n. The witness testified that advice. reaction to the Warren’s responded, the defendant “I refuse to an it manifest the admission We think grounds might swer on the incriminate testimony not constitute a com- of this did noted, me.” Id. We “When an accused right ment on the exercise of the Warrens’ responds question, to a or even to an accu where the only to remain silent. ac- sation, with an assertion of a legal claimed having is amerced for exercised his cused right, constitutional the jury or should not rights constitutional that error is commit- to infer permitted from such an asser premise implicit ted. This the funda- guilt tion consciousness of or tacit ad prohibition Supreme set out mental Clearly, mission.” Id. at 902. it was not Court, evident the defendants here asserted impermissible penalize it is an individ- rights, jury their and therefore the could exercising his Fifth Amendment ual for drawn not have inference of “tacit ad police when he is under custodi- privilege mission.” interrogation. prosecution may al not, therefore, use at trial the fact that jury Even if the reasonably could infer privilege mute claimed his in he stood or upon relied their Warrens fifth face of accusation. rights, amendment their silence speaks. have been the silence that 436, 37, They Arizona, n. Miranda v. 384 U.S. 468 had not confronted with accusations or 1602, 1625, (1966). 16 L.Ed.2d 694 86 S.Ct. questions. even Since Warrens did not testimony indicated was that All that trial, at testify they might his brother chosen Thomas Warren advised to remain silent after their could arrest could not say anything. jury not to Cruse impugn exculpatory explanation the advice not have known whether was offered case, jury. therefore, to the This is not testimony imply does not like fact heeded. Ohio, 610, Doyle 2240, v. 426 96 Thomas Warren himself chose exer- U.S. S.Ct. (1976); right; merely Hale, admonished the 48 L.Ed.2d 91 United v. cise his States 171, 2133, speak. not to 422 U.S. 95 S.Ct. 45 others L.Ed.2d 99 1074 1109, (8th States, Cir.), denied, F.2d 1119 547 F.2d cert. 434 v. United Chapman

(1975); 908, 940, 98 432, denied, (1977). 97 431 U.S. U.S. S.Ct. 54 L.Ed.2d 300 Cir.), cert. (5th 1240 (1977); Although recognize or we it 1705, 393 is not true L.Ed.2d 52 S.Ct. (5th all separate F.2d 274 Cir. evidence admissible in a 531 Impson, v. States cases, exceptions hearsay error was found be trial under rule those 1976). In necessarily comports was with sixth which a defense amendment point “the requirements, confrontation constructed, exculpatory testimo see Dutton v. being [the Evans, 74, 86, 210, 218, 400 defendant], arguably dam U.S. 91 S.Ct. 27 ny of (1970), of the defend L.Ed.2d 213 by proof established that impeached aged or statements that are United States admissible under thе when arrested.” ant’s silence coconspirator exception case comes to the hearsay at 276. This rule 531 F.2d Impson, v. not run afoul of we made in United do Bruton. United States within the distinction Archibold-Newball, 101, (1976), 677; 103 v. 554 F.2d at Griffin, F.2d v. 530 States Scholle, v. said, prosecutor 1109, in United States 553 F.2d at we “Unlike where 1119-20; 171, Huff, Hale, 849, 95 Park v. U.S. 506 F.2d 860 States v.] [422 [United banc), (1975)] (5th Cir.) (en denied, 2133, prose 99 cert. 423 L.Ed.2d U.S. S.Ct. 824, 38, prejudicial picture (1975); 96 S.Ct. 46 L.Ed.2d 40 develop the did not cutor States, McGregor 925, in the face v. United remaining silent F.2d accused of an (5th 1970); Evans, at the time of the Cir. see Dutton v. interrogation police 85-88, 91 400 U.S. at S.Ct. at 218-19. arrest.” 801(d)(2)(E) Fed.R.Evid. makes admissi Issue Bruton D. The against party ble “a statement a cocon party here is spirator during the course The issue for determination [that] States, 391 and in furtherance of the conspiracy.”14 Bruton v. United U.S. whether 1620, (1968), 20 L.Ed.2d 476 See Krulewitch v. United 88 S.Ct. John grant court L.Ed. 790 Un required the district questionably, after Thomas Warren’s motion for severance statement Warren’s conspiracy Warren’s made while the trial Thomas was viable. Battell related comment, together.” Arias-Diaz, are all in this As we said in United “We Record, 214. Thomas Warren 497 F.2d vol. cert. de nied, during con his initial made this statement Wallace, (1975), Agents person’s Battell and L.Ed.2d 761 “a

versation role he, Warren, produc conspiracy ends with his just after arrest.” Thomas We hold that the Warren made the comment pistols. shortly ed the three after boarding statement did not violate and long admission of this before arrests had been made and the rule of Bruton. even before there was probable cause to believe that a crime of Bruton established that a codefendant’s any type had been committed. note 12 See ‍​‌‌‌‌​‌‌‌​‌‌​‌‌​‌​​‌‌‌​​​​​‌‌​‌‌​​‌​​​‌‌​​​‌​​‌‌‍the defendant implicates confession that supra Thus, accompanying text. joint in a trial if the codefend inadmissible clearly comment was “during made Implicit take the stand. ant refuses to conspiracy.” course in Bruton is that codefend holding question would have been inadmissi The closer ant’s confession is whether the state- separate in a ment against ble the defendant was made in furtherance of the con- 3, id., n. spiracy. place prop- trial. 391 U.S. at 128 88 S.Ct. To the comment in the See 1623; context, reproduce following v. Archibold-New er we ex- at United States 665, (5th Cir.), ball, cerpt 677 cert. de from the transcript 554 F.2d at trial. It fol- 1000, 644, nied, 54 Agent testimony describing 434 98 S.Ct. L.Ed.2d lows Battell’s Scholle, Seas, (1977); v. 553 the boarding United States immedi- 496 say they Technically, hearsay rule under the Federal Rules state- but because are not 14. Brown, 407, by coconspirators be- are admissible not all. See United States v. 555 F.2d ments (5th 1977). they exceptiоn 422 n. fall within an to the hear- 35 Cir. made which Thomas Warren the statement Agent Wallace which he ately after in issue. Thomas Warren. approached prosecutor:] WHITTEN, [MR. Although transcript is somewhat' am- had with you the conversation was

What biguous as to what Thomas Warren was Warren? TomMr. said, “We are all in referring when he I asked him if BATTELL:] [AGENT together,” interpreta- the most reasonable any aboard. guns he had referring suppos- tion that he was to the he say? did What WHITTEN:] [MR. enterprise, ed land investment which was replied in He BATTELL:] [AGENT story. a cover the testimo- proffered as On myself and Mr. took affirmative and record, other ny any interpretation in where he house to deck Wallace wholly gratui- the statement render pistols. us three showed tous. the statement is taken to refer When you any Did have WHITTEN:] [MR. scheme, it furthers to land investment Mr. Tom War- conversation with further implies conspiracy the narcotics because it anything else? ren about jointly Warrens Cruse were Yes, I did. alternative, BATTELL:] legitimate [AGENT in an participating was What the sub- Indeed, enterprise. might the statement WHITTEN:] [MR. of that conversation? ject matter attempt explain why been an to three have just produced, Mr. Warren which had were pistols, BATTELL:] [AGENT expressed con- might Warren on board. Thomas Warren that —Mr. stated said, this all about? impression guns “What’s give He wished to fusion. and he ex- together,” him, Warren, all in this by are John We were be used — hibited while protection Cruse transacting America the land invest- South 2, Record, point At this vol. at 213-14. event, plan. ment In since the testimo- on the basis of objected counsel defense interpreta- of a ny susceptible reasonable Bruton. judge’s tion is consistent the trial context, in fuller testimony place To grant refusal the motion for severance earlier testimo- Battell’s we refer he when the statement came into that made hearing. Describing suppression at the ny evidence, not record we will construe a cold events, stated as follows: he same these contrary. stated, “Why I BATTELL:] [AGENT aboard?” guns have these you do properly was admissible statement ensued, which stat- Conversation as a made against John Warren statement down to going he was South ed that during in further- coconspirator, Aruba, said America, I believehe See United States conspiracy. [sic] ance a land make transaction. Pate, 1148, 1976). v. (5th 543 F.2d Cir. such, precepts not As it does violate the Record, 2, at This is all tran- vol. in Bruton.15 regarding context established script reveals name, not did mentioned the statement the statement were note that even if 15. We rule, activity. coconspirator think not refer criminal We it is under the admissible hardly incriminating more than would contravene this statement doubtful admission hardly calling proceeds of a one for the division was crucial to Bruton. statement ways” conspirators, case, robbery among government’s bank “four in contrast the con- id., directly inculpa not to in Bruton. a comment we held be that was admitted See fession Hicks, 1623; tory of a in United States v. codefendant 88 S.Ct. at Dutton 391 U.S. Evans, (5th 74, 87, 1002-03 cert. F.2d Cir. 400 U.S. denied, clearly (1970). 47 L.Ed.2d Grillo, John Warren L.Ed.2d 213 testimony. United He See States v. implicated was serv- Cruse’s 1976). navigator F.2d ing Seas and had sum, “of In Warren’s supplied unload mari- statement boat to used to peripheral significance at Dutton v. States. most.” juana return to the Evans, 219. It added 400 U.S. at 91 S.Ct. at Moreover, clearly is not the statement inculpatory directly Warren. He was of John 1076 Since we Fed.R.Evid. 615 Issue construe

E. The violation of the rule not to require the automatic exclusion and the concedes The Government testimony, the of defendants must demon- the trial judge committed found that panel error, of when judge’s Fed.R.Evid. strate the trial in violation error created the Government’s refused to exclude prejudice require sufficient to reversal.16 during courtroom from the witnesses object The defendants did not at trial to the terms, rule, hearing. The suppression calling of the Government’s witnesses. request party mandatory: “At of did not They move for mistrial on the basis witnesses excluded so court shall order that the testimony witnesses’ trial ma- testimony of oth- they cannot hear terially their exposure influenced to . (Emphasis sup- .” er witnesses testimony of other witnesses at the suppres- requested Defense counsel plied.) hearing. sion defendants’ failure beginning at the be invoked rule prejudice denote particularly significant any testimony been re- hearing, before given the unique opportunity afforded them Record, rule vol. at 14. The ceived. transcripts their access to depositions Therefore, only applied at trial. later is whether the violation of the Government’s before us here witnesses that had issue hearing re- suppression rule taken in with a prose- connection state We that it not. reversal. hold does quires arising cution out of the same transaction Record, in issue here. See vol. at 333-35. not a new The defendants do seek pointed defendants have prejudi- no Indeed, hearing. it would be suppression so, judge’s to do cial effects of the trial meaningless given for them failure designed of the rule. The rule is purposes the rule apply suppression at the hearing; testimony of one witness im to avoid the a showing absent of prejudice we not shall influencing that of another and to properly reverse these convictions. of disingenuous aid the detection testi mony. See v. United 425 Geders Currency F. The Convictions 80, 87, 1330, 1335, 96 47 L.Ed.2d (1976); Berger, 3 J. & M. 592 Weinstein recent opinions Several of this circuit 615[01], Weinstein’s at 615-4 Evidence K have invalidated convictions under 31 (1976). such influence, effects (1970) U.S.C. 1058 § or transporting by a suppression would not be erased new causing transported to be monetary instru hearing, opportunity uncover in an $5,000 ments amount exceeding with testimony passed. such has What the filing report required out by 31 U.S.C. seeking (they must be therefore defendants (1970). 1101 United States v. Schnaider request relief) particular is a reversal of man, (5th 568 F.2d 1208 Cir. 1978), and the convictions and a new trial without Granda, (5th United States v. 565 F.2d 922 witnesses. We decline to read Government 1978), Cir. language construed the in section draconian sanction—tantamount requiring 1101 that the failure to report be exclusionary rule—into rule 615. See Whiteside, “knowing,” and that in section F.Supp. calling United States v. 1058 (D.Del.1975). for a “willful” violation of section insignificant, any, weight judge, if Govern- ordinarily of the trial and he not will against strong ment’s case John Warren. exclude witnesses without a demonstration probable prejudice. g.,E. United States v. Phi holding 16. Our a violation of rule does fer, F.Supp. 719, aff’d, (E.D.Pa.1975), not call for the automatic witness exclusion of (3d 1976). Moreover, 532 F.2d 748 Cir. testimony principle es or is consistent with the judge failure of the trial to order a mistrial comply failure of witness to with a sequestra when witnesses who have violated sequestration order does not his alone render testify justify tion orders will nevertheless testimony inadmissible. See States v. appeal showing preju reversal absent a Suarez, (5th cert. de Cir. dice sufficient to constitute an abuse of discre nied, 39 L.Ed.2d Eastwood, tion. United States v. F.2d Whether exclude a witness who 1973). violated left the order is to the sound discretion

1077 tions, them, as I defend- understand empha- that a and to a demonstration necessitate significance our size the of decisions in these statutes indicted under ant Schnaiderman, States v. United 568 F.2d requirement reporting of knowledge (5th 1978), 1208 Cir. and United States v. viola- to commit the intent specific a and Granda, (5th 1978). invalidate, Cir. went further The cases tion. under law, any convictions of as matter a to agree although All seem section of 1101 section 1058 for violation section 89(a), written, empower would the Coast by the are taken steps affirmative “unless vessel Guard board American and requirements laws’ government to make the it, cause, fully search without 1211 Schnaiderman, 568 F.2d at known.” whatsoever, the statutory reason broad Granda, 926). at 565 F.2d (quoting judicially has been in a language construed manner: more restrictive Coast Guard’s silence, these not, impugn by our asSo stop and board is limited to power vessels concur expressly invoke the we holdings, conducting safety and documentation in im doctrine. the court Since rent sentence spections. 1064-1065; Majority opinion at sen concurrent posed upon Warrens dissenting 1079; opinion Judge of Fay at marijua for the eighteen months of tences Hillstrom, see United States v. 533 F.2d cur six months for the conspiracy na and denied, (5th 1976), cert. 210 Cir. violations, on of we affirm the basis rency (1977); 97 50 S.Ct. L.Ed.2d 749 pretermit review convictions and conspiracy Odom, v. 526 341- United States F.2d currency Hiraba convictions.17 See (5th 1976); Cir. United States v. One 43 81, 85, 342 63 320 yashi v. United Vessel, Sailing 405 F.Supp. Foot 882 1375, 1378, (1943); 1774 Unit L.Ed. 87 curiam, (S.D.Fla.1975), per aff’d 538 F.2d (5th F.2d 928 Cir. Kelly, v. 569 ed States 1976). (5th Cir. 694 1978). Likewise, if agree all circumstances IV. Conclusion during course of in- arise above, spection generate probable cause to we AF- the reasons stated For that a violation of and believe United States of John Warren the convictions FIRM then, occurred, then, only has law panel’s dispositions Warren. The may inquiry, Des extend con- DeFina and David of the convictions searches, evidence, seize and make ar- Schick, duct of the former reversing that 1065; dissenting latter, Majority opinion undis- rests. affirming that of the are left 1079; Judge Fay opinion turbed. Odom, supra, v. at 342. F.2d RONEY, Judge, with whom Circuit Although phrasing in some unfortunate SIMPSON, Judge, joins, dissenting: Circuit majority opinion “ple- a indicate cause, nary” power to search without with the result most agree

I interpretation of the reasoning Judge Fay’s opinion careful contained legal majority upon cases therein relied show that dissenting opinion. Because the only “plenary” power stop, supports to have the breadth opinion does seem it, however, agree. I write with which we all Fay principle Judge ascribes majority’s difference statement without reserva- clarify critical separately constitutional, posi- 89(a) read in dissenting tion section majority between present and not case effected time arrest what a court 17. The arrests years may glean holdings prior v. from a statute three and a half in United States to our Schnaiderman, (5th This is well even where later. rule established 568 F.2d Cir. Granda, (5th made is the statute under which arrest was United States F.2d 1978). assuming that the convictions declared Moffett v. Even later unconstitutional. Cir. currency upheld, (5th Wainwright, could not be F.2d 502 n. 6 Cir. violation 1975) (quoting Kilgen, in this are valid. arrests and search case United States v. depends upon 1971)). validity arrest F.2d at the of the officers’ actions reasonableness argument immediately concerning presence and the the cases cited light of Coast agents Guard Customs and DEA to subsequent statement seems me of safety for checks and importance. vessels little I would it may board think makes arises, make further then, probable cause if little if other agents difference board a searches, majority clearly the did indicates along officers, vessel with pro- Coast Guard change the law from that to not mean they vided do no more than the what Coast Odom, supra. v. States in United announced permitted Guard is to do. proviso That intended to authorize the majority Had the the invalidates current search: the Customs complete searches to make Coast Guard agents and DEA conducted an investigation cause, present the probable vessels without beyond the safety inspection, and since upheld without have been search could that, cannot Guard officers do neither majority opin- But the discussion. further agents can accompanying the the Coast stop the initial as a carefully explicates ion long agents Guard. So as the other do no check, agents during which the ac- safety could, more than the Coast Guard I see no to a further conduct quired probable problem of constitutional dimensions. If search. special expertise is thus available for de- majority the and dissent tecting drug It is here customs and violations during differ, agree I with it is here permitted a inspection, so be it. Cf. United search were Fay that the and seizure Judge Hillstrom, supra, v. States 533 F.2d at 211 unconstitutional. (safety inspection, marijuana and seizure of plain during in view inspection, not cases, illegality evidence of prior In our suggested by invalid because agent, DEA during view plain either in or the found suspected who drugs might board). be on safety inspection. course of the United Any deprive other rule could the Coast Hillstrom, supra, v. 533 F.2d at 210- States Guard of the experts aid of other in the view); Odom, (plain v. United States fight crime, against much Inspector as if supra, (burlap F.2d at 341-342 sacks Baynes of Surrey the Constabulary were containing marijuana discovered while look- prevented calling from on Sherlock the Holmes ing for main beam identification num- for assistance. ber); v. Sailing United States One 43 Foot Vessel, supra, F.Supp. (plain at 883-884 Although currency defendant’s convic- “overpowering” view and aroma mari- tions should also be reversed under our juana ship). opinions in Schnaiderman, United cases, agents

In (5th contrast to these the here 1978), F.2d 1208 Cir. and Granda, an engaged from outset affirm- States v. (5th Cir. investigation beyond scope 1978), ative of a unless the en banc court should inspection, they sought reject them, in which out choose to these cases bear even illegality through questioning greater significance evidence a juxtaposed when occupants searching against vessel’s the facts majority which the Although majority boat. partially describes the relies for cause. agents’ search preliminary “cursory,” Schnaiderman and Granda per- hold exception there constitutional for son guilty is not under 31 § U.S.C.A. searches, “cursory” failing even if this search report could to file required by “cursory.” be Regardless considered of U.S.C.A. 1101 when transporting more designates how $5,000 one search that than took out of country, unless the place questioning before the person search knowledge had of the reporting re- thereafter, it is beyond dispute quirements clear and a specific intent to commit agents engaged an affirmative inves- the violation. Unless the Government tigation beyond safety requirement documentation makes the reporting known to inspection, defendant, without cause. we it may indicated that Coast Guard was without constitutional au- impossible prove beyond a reasonable thority investigation. to conduct doubt that defendant acted knowledge American citizens have been severe In the dealt a requirements. reporting case, only by today’s opinion, blow en banc I am agents asked present taking the mon- reported cursory stunned treat- if he had somewhat Warren and filled out the country opinion gives ment certain sérious ey out n had forms, he he replied which proper My constitutional and factual issues. if he asked knew He never not. as to remain thoughts this case the "same as it, agents give him an report nor did expressed opin- those in the Court’s initial appropriate fill out opportunity ion, I 550 F.2d but feel money on once discovered forms further necessary write order See United States the Seas. board thoughts explain point bétter these and to (2d Londono, F.2d 805 Cir. v. Gomez I out what consider to be serious weak- the Juan, v. Sаn 1977), and United States in the position. nesses Court’s (2d 1976). Thus the evidence Cir. F.2d considerably weak- is a committed crime of A. The Fourth Amendment Problems ened, deserve the reliance and does not question No one can that the Coast Guard majority opinion. by the it placed stop and may search an American vessel on to confront these majority refuses high probable seas when it has the cause under the concurrent convictions currency is being believe a crime has been or commit- dissent respectfully I doctrine. sentence Prior cases ted. have indicated that such the concurrent sentence such use of from are not of actions violative the Fourth think, am I Although ready, I doctrine. See, g., United Amendment. e. States en- the sentence doctrine concurrent retire Lee, 47 S.Ct. 71 L.Ed. event applied it not be in tirely, should (1927); Maul v. United entirely of- for different convictions where 71 L.Ed. undoubtedly affect a defend- will fenses original panel opinion, As discussed adversely. future ant’s may stop the Coast Guard also an American Judge I underline One further note. high vessel on the seas for the of purpose suggestion holding that the of a Coast Fay’s a conducting safety documentary inspec- or stop high gunpoint seas at on the Guard previously approved tion. This Court has unsupportable is in real not custodial stoppings, has also as of endorsed the regulations makes “Whoever life. corollary proposition cir- a that if Bolt, All R. A Man for row a boat.” doesn’t during arise the course of a cumstances Seasons, (Random 1962). House inspection generate that violation cause to believe that a of United Judge Fay’s that analysis Agreeing with occurred, has then law the Coast illegal record reflect an facts in this may inquiry, its seize Guard extend search, were the result that the admissions if necessary. evidence and arrests make holding interrogation, and that of custodial Odom, 526 United States v. F.2d 339 See a rever- require and Granda Schnaiderman 1976). baffling What is is how a convictions, currency I would sal our majority of Court can feel reverse. within any facts of case fall GODBOLD, Judge, dissenting: Circuit principles just recited. legal Equally shocking suggestion by majority is Roney’s dissenting Judge concur I legal principles that these do not set opinion except relating to portion opinion, limits searches and out constitutional currency violations. high on the seas. seizures FAY, Judge, with whom GOLD- Circuit proper analysis Amendment Fourth MORGAN, R. Circuit and LEWIS BERG recognition with a begin for this case should jоin, dissenting: Judges, detention Coast Guard anywhere in the world my It is American vessel respectfully, I dissent.

Most used as that term is rights constitutional constitutes “seizure” belief war- In order Amendment.1 While to better the Fourth understand the ration- absent cause are seizures underlying my analysis rantless ale of the Fourth constitutional, may the Coast seldom Guard case, Amendment issues in this bet- and to an American vessel constitutionally seize explain ter the serious misgivings I purpose conducting the limited majori- over the far reaching effects of the safety inspection. is documentary and necessary ty opinion, very is to examine however, critical, recognize the con- closely potential effect of the broad hinges a seizure on the stitutionality of such language Court, used en banc and to limiting scope intru- Coast Guard compare this language other search of the initial seizure. to the purpose sion opin- and seizure The majority situations. proba- Coast Guard absent The moment flatly power ion states of the scope inquiry of its enlarges ble apprehend any vessel safety and beyond documentary of a flag “plenary”. American Majority opin- inspection, longer is no constitu- the seizure p. ion opinion also states tional, inquir- all evidence derived from without 89(a) reservation that con- expanded intrusion is ies as result of stitutional. Id. A close examination of unconstitutionally obtained and inadmissi- 89(a), however, reveals that it would at trial. ble the authorize Coast Guard to seize us, In the case before all evidence of anywhere American vessel in the world wrongdoing criminal was obtained as a re- probable without and cause for no purpose governmental of the efforts of two sult whatsoever other than to conduct a full only purpose on the officers whose board search possible drug scale or other crim- was to Guard cutter look for obvious inal violations. It is difficult to believe that Upon customs narcotics and violations. the en banc Court feels that by such action Seas, boarding the these two offi- the constitutional, Coast Guard be began an and immediately cers extensive but the broad language of its opinion sug- highly intrusive search vessel. This gests that this is so. The majority opinion search, it, inquiries and the related to were is, therefore, seriously flawed not only by way safety no with the and connected attempts its to the reconcile facts of documentary being then conduct- inspection case under legal principles the set forth Indeed, by personnel. ed Lt. Coast Guard Odom, United States v. Miller, leading the Coast Guard officer the but by suggestion also that boarding party, forthrightly testified that principles those set forth in Odom are not Agent Battell the DEA Wal- and the outer limits of the Coast Guard’s lawful gave lace of the him Customs Service no authority stop and search American ves- conducting assistance in safety and doc- the high sels on seas. 2, umentary Record, inspection. Vol. at 24. majority’s refusal establish consti- inquiries At time this search and related tutional limitations on search Wallace, and were made Battell and seizures high on the seas creates an government agent giv- extraordinary had learned of facts ing and anomalous result. The probable majority rise to cause appar- that a crime ently willing to Agents give committed. The efforts of Coast Guard were, therefore, unfettered Battell and Wallace outside discretion to seize American ves- parameters only high sels on seas though constitutional even we must stop basis for the and be aware of the that documenta- fact the Supreme —a result, ry inspection. As a has grant the evidence ‍​‌‌‌‌​‌‌‌​‌‌​‌‌​‌​​‌‌‌​​​​​‌‌​‌‌​​‌​​​‌‌​​​‌​​‌‌‍Court said that such a of discre- derived from the seizure of the tion ato Border officer roving Patrol on a unconstitutionally obtained. patrol would be unconstitutional. In Unit- point person 1. This will be discussed now I infra. For ment officer accosts a and restrains his only principle leave, government need relate the stated in law freedom to officer has Ohio, Terry person. v. 20 S.Ct. “seized” that (1968), govern- L.Ed.2d 889 that whenever a that 873, parts of the vehicle can be seen Brignoni-Ponce, ed States alongside. Because of the (1975), standing anyone L.Ed.2d intrusion, stops of this limited nature of length at discussed Court Supreme be that do not “may justified facts on the au- sort limitations Fourth Amendment required for Border Patrol amount thority of the United States at at Mexi- an arrest.” Id. S.Ct. near the (seize) automobiles stop However, very careful the Court question simply border in order can point out that seizures of this sort could not citizenship immi- their occupants about Border Patrol analysis began be made at the mere whim of The Court’s status. gration officers, “only but rather if "The Fourth recognition [the officers] facts, articulable to- specific aware seizures of are applies to all Amendment from those only gether with rational inferences seizures that involve including person, facts, reasonably ar- warrant suspiсion traditional short of detention a brief of- who be government may the vehicles contain aliens rest,” and whenever country.” “Fourth Amend- at illegally in the Id. person seized a ficer be emphasized ‘reasona- requires that the seizure at 2582. The Court S.Ct. ment 2578. As with reasonably be stop inquiry must Id. ble’”. subject to police action justification for the categories scope related in other constraints, “the rea- “may question Amendment officer Fourth intrusion. The depends on such seizures their citizen- passengers about sonableness driver interest public status, immigration may between ship balance security free personal right suspicious to explain individual’s ask them circumstanc- offi- law arbitrary interference es, from or search but further detention Id. cers.” on consent or must based 881-82, Id. at at 2580. cause.” public the Court identified Supreme The roving by a in a seizure at stake interest Supreme to unwilling Court was prevent need to as the Patrol officer Border roving patrol a border unfettered dis- grant at the Mexican illegal entry of aliens the vehicles, but, to for rea- cretion seize some the recognized that Court border. majority opin- unexplained son left the border was common Mexican-American ion, implies grant our Court that a simi- long that it would be miles over a discretion to a Coast Guard officer on lar police this border. impossible effectively away the patrol thousands of miles from has an influx impossibility resulted This States would be constitutional. United illegal year aliens a million of over one majority the that are Perhaps feels there “significant economic and so- which creates exigencies involved in a confronta- greater Id. problems.” cial the Coast an tion between Guard and high (possibly on the seas American vessel at- valid interest of Against public this away the aliens, of miles from United the thousands flow of regulate the tempting to States), present than are in a confrontation with weighed the interference then Court a and a Border Patrol an offi- between traveler liberty that results when individual so, its near Mexican border. If I questions officer the stops automobile an cer Certainly attempting the laws disagree. that such The Court concluded occupants. just it con- enforced the Border Patrol are as usually modest intrusion is since minute, treaty important obliga- as those laws or than there is no more a sumes occupants, attempting Guard is tions the Coast of the vehicle or search enforce,2 аnd can doubt that the limited to those there be no inspection is the visual majority purpose fact, appears problem alien is thinks that the for the In part Hemisphere problem stops in that of the Western presently than the much more serious safety is for Seas was found insuring vessels have com- where that American documentary inspections. regulations high What the Coast plied so that rightfully large shipping. is is concerned about Guard safe international seas will be imported kidding drugs But, into the if it itself amount I this Court is think generally United States is The fact threat the Supreme Court has the roving patrol more immediate in grant much refused to the government unfettered high it is on the seas. It is situation than discretion to seize persons vehicles or obvious that the interference also rather situations appear which on their face more graver liberty with individual is much critical than a confrontation between an today, case such as that before us than is American vessel and the Coast on Guard interference in the high seas, the “modest” Border grant indicates that such a 89(a) situation. Section would allow authority Patrol to the Coast Guard would like- cause or degree without of wise be unconstitutional since a ship or seizure of indefinite suspicion a duration vessel is some sort of talisman in whose (not complete interrogation mention presence the Fourth Amendment fades occupants of all the well away. search as That however, is not to say, vessel). This sort of interference is seizure the Coast Guard high on the exactly type governmental of serious seas absent cause would be uncon- interference that the Fourth Amendment stitutional. It is merely grant aof attempting protect against, yet the authority blanket to seize high on the seas language majority opinion justified would which cannot be under the Fourth just sanction this without even attempting Amendment. interesting to consider position to rationalize this under the Fourth how limited the situations are in which Amendment. governmental given officers are blanket au- thority to search or seize. The obvious ones roving patrol border situation is not are at an actual crossing border or when a only public instance in which the inter vessel is found within customs waters. exigencies facing est and a particular gov But, exigencies inherent in these situa- ernmental appear officer would as great or tions adequately justify grant such a greater exigencies than the public or inter authority. In situation, the border the Su- est involved with preme Court explained has it within high example, seas. For the circumstances power of the government to exclude facing police officer on the streets when a aliens from country, and, aas conse- crime has recently (and been committed quence of power: immediate public threat as a result of may “Travellers be so stopped in crossing crime) are significantly greater or more an international boundary because of exigent na- facing than those the Coast Guard tional self protection reasonably requir- high Nevertheless, on the seas. the Su ing entering one the country identify to preme power Court has restricted the of the himself as in, entitled to come and his police stop officer to and frisk a citizen for belonging as effects which may be investigatory law- purposes. The Court has re fully brought in.” quired an officer in such a situation to have a reasonable belief that person to whom Almeida-Sanchez v. States, United 413 U.S. speak he wishes to 266, has been or was about to 272, 2535, 93 2539, S.Ct. 37 L.Ed.2d 596 engage in some sort of criminal activity, (1973), quoting Carroll v. 267 Williams, Adams v. 143, 145-146, 132, U.S. 154, 280, U.S. 45 S.Ct. 69 L.Ed. 543 (1972), S.Ct. 32 L.Ed.2d 612 (1925). and The policy same reason exists for before the is officer allowed to frisk that allowing warrantless non probable cause person, he must have reason to believe that searches and seizures of vessels within he is Terry Ohio, dangerous. armed and v. twelve miles of the However, coast. in 1, 30, U.S. 88 S.Ct. 20 L.Ed.2d reason, 889 addition to this the search and sei- zure within customs waters justi- is further by part importer States vessels in that high the world. 1 do on the seas should have fewer think, however, problem rights by is when confronted the Coast Guard high different or more person critical on the sees near than should a on land near the Mexican border, and, Haiti than it is on the Mexican as a border when confronted an officer of the result, why possible drug I no see reason Border Patrol. without a difficulty specifically in effective- warrant where au- admitted by the fied national boundaries. thorized statute. the seaward ly policing 317,3 forth brought has 92 S.Ct. at 1597. majority opinion Id. at justify to attempting circumstances no Assuming on stoppings governmental gives it discretion grant high seas and limited administrative The most obvious high seas. officers constitutional, type searches are such a such circum- for this is explanation cloak of stopping retain its constitu- for inspect need to exist. While the stances only as tionality long as intrusion re- legiti- documentary reasons is safety and in scope. limited mains moment the compelling than mate, is no more it way intrusion is extended in —absent influx to control the roving patrol aof need probable cause to such justify an exten- argued can it be Nor of aliens. the seizure and sion—then search become is drug importations preventing problem Placing unconstitutional. such a condition at high seas than it is on the any greater constitutionality on the of a search and impossible border. Mexican no way seizure is in unusual. As mentioned Fourth Amendment under the rationalize earlier, Supreme did just Court this vessel inde- an for an of American seizure it stated any stop when inquiry in in- time order to amount of terminate Patrol “reasonably the Border must be re- drug How- possible violations. about quire scope” justification lated for ever, say stoppings not to intrusion, and “further detention or search of a intrusive nature cannot less searches based or probable must be on consent sanc- Previously, this Court has justified. Brignoni-Ponce, cause.” United v. States vessels on of American stopping tioned 881-82, A S.Ct. documentary seas high for limitation scope similar on the a Fourth doing, accepted we By so have inspections. po- Amendment intrusion was on a placed country duty that this has a argument in a frisk” “stop lice officer situation. effectively con- rest of the world Ohio, Supreme Terry Court said in v. as to their administra- ships American trol 392 U.S. L.Ed.2d 889 I no real technical matters. tive (1968)that: such position, I think problem justification The sole in the search analogous are and searches stoppings present protection situation is the which searches warrantless administrative police officer and others nearby, and highly regulated business permissible are must therefore be confined in scope to fact, the liquor and firearms. In reasonably designed intrusion to discover in United Court’s statement Supreme knives, clubs, guns, or other in- hidden Biswell, police struments the assault of the (1972), where it autho- 32 L.Ed.2d 87 officer. inspections firearm the warrantless rized dealers, applicable is most our situation: Id. at 88 S.Ct. at 1884. The Supreme scope then Court examined difficulty concluding have little

We where, here, police conducted the in inspec- search officer regulatory that as interest, question and determined the officer urgent federal further tions [an] his “strictly the had confined search possibilities of abuse and to what the and minimally to privacy impressive necessary are not of was learn whether to threat dimensions, inspection may proceed thе men were armed and to the disarm them jurisdiction interesting ef- be to what facilities which fall under the of the consider 3. Supreme opinion Occupational Safety in recent and Health Act of 1970. the Court’s fect - Barlow’s, Inc., -, stop possible that Is it a warrantless limited in Marshall 1816, (1978) scope safety justifiable the is not has on to violations un- L.Ed.2d stopping propriety particular der the Fourth Amendment? This even an administrative dissent, beyond purpose safety point scope the of a docu- of this for limited and the but is something majority mentary opinion invali- nevertheless the check. The Court Marshall employment ought inspections to have discussed. warrantless dated Id. at therance of this weapons.” purpose, the discovered conducted an once he concluded at 1884. The Court extensive search of the Stormy Seas. This “did not con- the officer emphasizing going through search included all areas of for what- general exploratory search a duct boat, closets, cabinets, opening drawers, the activity might he of criminal ever evidence going through personal and even items such Id. find.” as one of the shaving defendant’s kits. case, justifi- the sole constitutional In our Record, Vol. at 74-76. Did the to conduct for the initial seizure was cation government really expect officers to uncov- and, inspection, safety documentary and safety er violations inside the drawer of the facts, appar- it becomes examine the as we or nightstand cupboards— inside of the confine its government the did not ent that inside of shaving Agent much less kit? reasonably necessary to inquiry what was also Wallace admitted purpose the sole any safety or if there were to determine inquiry for his to Thomas Warren about Instead, documentary violations. the was money suspected because he the pur- exploita- government stop treated the trip pose bring narcotics, was to back to look for whatever opportunity ble evi- and, correct, suspicion if this then there be activity might of criminal found. dence might money Record, on board.5 Vol. inquiry by one can doubt that No at 77. The inquiry therefore, about money, government beyond in this case went far nothing to do had with a and safety docu- necessary safety what was to look for and inspection. mentary documentary government violations. The opinion The en bane concedes that no Drug presence admits En- governmental agent who boarded Administration and Customs of- forcement Stormy probable Seas had to believe a nothing safety had ficers do with crime Rather, had committed documentary until Thomas inspections. these of- Warren admitted that he Stormy ficers boarded look for had failed to re Seas violations,4 and, drug in fur- port customs possess.6 $7000.00 claimed to examination, Agent impermissible government agents 4. cross Wallace admit- On until the had looking weapons, drugs, ted that he was money, for cause to believe a crime had been find, “any I violation that could committed. violation, possibly gold violation that Record, would handle.” Vol. Customs 74. opinion’s 6. banc The en treatment of the exist- examining ence of cause is worth Agent Wallace testified that reason he since the Coast Guard’s ultimate search and suspected ship trip bring was on a back Stormy justified seizure Seas is on this gotten was because he narcotics had conflict- theory. analysis opinion of the en banc ing from the of the Cruse about stories purpose Warrens and places boarding, interrogation and search Record, trip. the Thomas Warren Vol. at 77. principle of the set forth 339 Seas within the of law going he was stated that Odom, United States v. 526 F.2d to stated to look Colombia at land while Cruse had 1976). principle This of law is had chartered his boat Warrens may that the Coast Guard conduct searches Record, fishing go diving. Vol. to 62-63. Are these two during and seizures and make arrests if stories conflict? safety inspection course of a circumstances would be What so unusual about Thomas War- generate probable arise that cause to believe wanting go ren purposes for Colombia business that a violation of United States law has oc- yet wanting along dive fish or opinion’s analysis begins curred. The en banc And, way? would it be unusual for John War- with the assertion that the Coast lawful- purpose trip ren to a different than ly stopped and boarded the his likely brother? truth of the matter most documentary inspection. conduct a Agent suspected is that Wallace ship conflicting on board While were and it was the stories purpose trip drugs of was for the minute he given regarding purpose trip, got board, nothing the defendants did result, observed that no ice onwas board him caused to believe As a otherwise. ship diving gear inopera- and that the expand inquiry Wallace continued to his circumstances, Agent tive. Based on Wallace believed the he these until heard and found he wanted. Un- what Stormy fortunately, way this is not Seas was on a to constitution- ally safety documentary stop. narcotics run conduct a A and this motivated him to ask stopping money ship. constitutional would be limited in na- about the amount of on board ture, expansion inquiry responded approx- would of the Thomas Warren that he had the defendants was thus by during to this admission obtained an Consequently, prior Warren, justification whatso seizure, there was unconstitutional and such evidence government’s of the expansion ever for suppressed should have been at trial.8 was needed to ad beyond whatever inquiry There is another serious Fourth Amend- documentary safety conduct a equately problem ment with the search and seizure constitutionality of the sei inspection. Stormy of the Seas and that involves the depended upon the Stormy Seas zure of participation Drug active Enforcement seizing the vessel for limited Guard personnel Administration and Customs in activities on restricting its purpose episode. panel opinion whole stat- accomplishment purp of that board ed that the evidence derived from the Here, admits that government ose.7 search Stormy and seizure of seizing in purpose of its part suppressed should be because the Coast government agents to permit Seas was improperly delegated Guard had its authori- narcotics vio “obvious customs and uncover ty stop 89(a) and search vessels under board, DEA Customs lations.” Once to members of other branches of the Feder- evidence of nothing but seek out agents did against al Government who authority. violations. All of the evidence had no such $7,000 registered imately probable that had not he this case is whether cause to opinion point currency the en banc It is at this arrest for these it. asserts violations can exist probable government had without an initial determination of whether knowledge been com- reporting cause to believe mitted, crime had the defendant had of the 1070-1071, Majority pp. opinion requirements. against see It is not the law to (after shortly point after this and it was agent country. take $5000 more than out of the actually money) that the defend- Consequently, saw person’s knowledge if a of the subse- ants and Cruse were arrested. Cruse quently reporting requirement is an essential element that the Seas was on offense, confessed of the can cause exist when run”, “pot and the vessel was seized and a regarding no evidence this element is known confirming by search uncovered evidence further the law enforcement I officer? am not sure confession. question, Cruse’s of the answer to this I but do seriously questioned enough believe it to be It cannot be serious warrant opinion. was a direct result of his discussion the en banc confession of Cruse arrest quently, and the arrest of the defendants. Conse- only things 7. Probable cause or consent are the defendants and if the arrests of the justify which could the full scale search and invalid, the confession Cruse Cruse inquiry which Wallace conducted. No invalid, and all evidence would likewise be degree suspicion justify lesser ther should a fur- as a result of that confession would be seized inadmissible. inquiry Supreme in this case when the Brignoni-Ponce stated in Court detention further opinion The en banc reasons stop or search after a a Border currency for a cause to arrest the defendants proba- Patrol officer must be based either Warren admit- violation existed after Thomas 873, 881-82, ble or consent. 422 U.S. money registered the ted that he had not S.Ct. 2574. country. taken out of the I am not so sure had currency probable cause to arrest for a that violation existed at interesting point, would be to consider what but I am certain drug prevention opera- effect would be on tions of the had not opinion was remiss in at least that the en banc not Court’s man, light discussing Coast Guard if the en banc court of this determination adopted present position. If the decisions in United States v. Schnaider- 1978) safety (5th Coast Guard were limited to F.2d 1208 Cir. and United and docu- Granda, 1978). mentary inspections, it would still States v. authority principle per- stop any any- cases set forth the that a American These vessel prosecuted failing safety inspec- to file a where in the world to conduct a tion. We would son cannot be report $5,000 transporting if when more than out be naive we did not ac- knowledge inspection country guise unless it can be shown that the under the of a knowledge reporting require- stop person had the Coast Guard could a vessel practically every specific viola- and search While it is true that a not allow the Coast ments and a tion. The cases intent to commit the area boat. go safety inspection even farther in that drawers, open convictions invalidate as a matter law etc., cupboards, inspection certainly steps been taken unless affirmative government requirements enough scope broad to discover if the to make the laws’ vessel Majority opiniоn p. happens cargo See 1075. The to have a of several tons of known. interesting point marijuana. opinions light about these The banc opinion proposes all of the evidence en as an alter- disputed It is not allowing for the participation native reason Stormy the the search of from derived the DEA agents of and Customs the fact DEA of the efforts of the product awas point never the defendants raised this Shockingly, Customs officer. agent and the the appellate either in district court or the court feels it the en banc majority a of en banc Court court.11 The could not be proper delegation a “infer” appropriate to wrong! hearing more At the to suppress willingness authority.9 This Court’s of this Seas, the evidence seized from the the without even least to infer such consent argued John Warren counsel for extensive- propriety of bit a discussion as of ly authority that no for the existed Customs great causes me concern. inference such an agents DEA to participate in this country is ex- drug problem The in Record, 122- search and seizure. Vol. at need the most forceful serious. We tremely point 124. Counsel earlier raised this same However, we cannot prosecutions possible. the his to district court in written memo- rights which have allowed ignore the basic a support randum of law in of motion to years. way of to continue some 200 our life Record, suppress.12 Vol. at 44. Once the justi- say must not “the end We cannot and defendants this point, raised the burden fell our expense fies the means” at the of con- government justify participa- on the to the rights rights. stitutional Few of these are agents, tion of the the and from record protected more treasured than those us, before it is justifi- obvious that no such Amendment.10 cation exists.13 Fourth states, “Although opinion appeal, court on 9. The en banc district or that consent was expressly lacking. indicate whether record does consent was given, a we think it fair inference possible opinion 12. It is to read the en banc implied given.” that at least consent mean that the defendants waived this error opinion referring is consent en banc enough simply because it was not to contest required by 141(b) pro- that vides that the Coast Guard U.S.C. which legality agents. participation of these may “with the con- Rather, argu- the defendants erred not also agency sent of the head of the concerned” avail ing actually given that consent was never from аgencies. of itself officers from other federal agencies. Surely, the heads of the relevant requires The statute the actual consent of the holding defendant, en banc court is not agency implied head of consent. concerned—not challenges constitutionality when he of a governmental activity, has the burden dem- of Bradley’s opin- why every 10. Mr. Justice in his onstrating possible justification admonition for century ago Boyd in activity ion for the court almost a inapplicable, and, if the defend- v. S.Ct. up bring justifications, ant fails to one of these (1885), repeating L.Ed. 746 is worth here: then he has waived his constitutional attack. may thing challenged It be that it is the obnoxious in par- its Counsel for the defendants form; repulsive illegiti- ticipation agents mildest and least but of in these their written mo- get practices mate and first suppress unconstitutional their orally. tion to Nowhere in the way, namely, by footing in silent government’s responses challenges to these at approaches slight legal deviations from the district court level is there mention procedure. only modes ated This can be obvi- 141(b) might justify par- that 14 U.S.C. § their by adhering rule constitution- ticipation. certainly duty It was not the security provisions person al try figure defendants to out how the Coast liberally property should be construed. A justify Guard could officers from other federal deprives and literal close construction them agencies being on board Coast Guard cutter efficacy, gradual of half their and leads to hundreds from the miles United States. right, depreciation of if it consisted more sound than substance. is the opinion’s proposition 13. The en banc final in its duty of courts to be watchful for the consti- struggle justify participation of these citizen, rights against tutional agents agents claims that even if the were not stealthy encroachments thereon. authorized cutter, board the Coast Guard Id. 535. their actions did not invalidate opinion en banc states: search and seizure of the Seas because Moreover, party aegis it is incumbent were carried out “under the moving suppress proposition evidence to demonstrate for Coast Guard.” For this court authority acquisition. Bates, lack cites United Cir. Bates, 1976). defendants made no contention either In a defendant’s automobile to sary trigger Issues the giving of The Fifth Amendment Miranda B. warnings. the to failure opinion held panel The en warnings opinion disagrees banc his Miranda with the Warren give panel’s analysis earlier regarding the about the him extent to questioning prior the violated which defendant’s freedom of money possession in his action of amount been explained opinion We in had restricted. en banc Fifth Amendment. the the factors asserts which normally that: oc- opinion safety in cur Coast Guard and documentary occurs when purposes Miranda Focus for inspections cannot be as indicias used of a by law enforce- is initiated questioning Rather, atmosphere. opinion custodial the person after has been ment officers claims that these since factors constantly custody deprived into or otherwise taken recur and expected are routine thus by any signifi- of actions in his freedom of a crew member on a boarded vessel. v. United way. Beckwith cant Therefore, in order for a situation to arise L.Ed.2d sufficiently that is custodial to warrant the no that all the question There is giving of Miranda warnings, necessary is sufficiently deprived had been defendants beyond to look these routine factors and Miranda warn- of their freedom such that anything determine whether occurred given. have been The de- ings should distinguishes this stopping which and ques- all removed to the been fendants tioning from stoppings. other The en banc were ship, guns, their which fantail of the then the opinion analyzes facts of this case board, lawfully seized as on had been the under four-factor test set forth initially ship, Guard boarded the soon the Coast Montos, in United States v. the ship all officers who boarded that nothing concludes armed, nearby the was Steadfast Stormy occurred on board Seas which on its guns with three machine deck would warrant an earlier of giving the Mi- Stormy did not de- insure that warnings randa defendant. warnings Miranda part unexpectedly. required opinion The en banc effectively when one is de- states: are freedom movement in prived of of Every flag the high American vessel on way especially is true significant this is subject seas boarding Coast Guard questioning designed specifi- when is inspection. . . Therefore, . cally yield incriminating statements. atmosphere coercive primal is the therefore, doubt, these There is no interrogation, indicium of a custodial had been denied their free- generally defendants absent because degree of movement neces- boardings dom are routine. was searched at Mexican border Cus- Id. at 967. inspectors. During inspection

toms a DEA It is difficult to see how above factual agent inspectors way of setting analogous assisted one the Customs to our case. opening one of the removal and of the tires The facts of our case indicate DEA and from the auto. of the tire was Removal Customs officers conducted their own search prompted inspector interrogation the fact that a Customs of Seas and its crew. visually has noticed that left rear tire was dif- totally Their activities were distinct from the ferent the other Inside from tires. the tire was documentary inspection being variety found controlled substances. carried Lieutenant Miller of the Coast argued that evidence defendant should be boarding party. All evidence that was suppressed agent because DEA was not from seized Seas was a direct result specifically empowered by statute to conduct of the activities of the DEA and Customs offi- This refused border searches. Court to reach efforts, But cers. for their no evidence whatso- question scope authority of the of the justify ever discovered to DEA because: subsequent full scale search vessel. Thus, impossible jointly by compare it is situation search “conducted [T]he . with the in Bates wherein the D’Antuono . . and Cus- situation efforts [DEA] ” Inspector inspectors played significant . toms . . and thus of the Customs Nowell aegis discovery “the if not in the search under Cus- critical role of the evi- against toms officer.” dence the defendant. rogation analysis is that these about money One error cause to only boardings are routine arrest had remaining factors, arisen. The being however, for the crew the vessel Guard —not supportive are all giving every it is true that Ameri- boarded. While warnings, Miranda opin- and the en banc subject it is can vessel knows that ion’s treatment those factors is seriously possibility boarding, reality, of such a a flawed. may go periods vessel for extended of time The second factor we are to consider is (or forever) being without boarded on the subjective whether the intent of the officer distinguishes this high seas. This factor conducting interrogation the was to hold interrogation at a situation from border the defendant. The en banc opinion admits crossing since in the latter situation almost that of the intent the boarding party was to every person who crosses the border will be restrict the Seas, freedom of the Stormy On stopped questions. high and asked opinion goes but the say on to that this is seas, however, persons there on could enough not since freedom of ves- every ship board a that have never involved sel boarded the Coast Guard is restrict- before, stop persons in a and these for ed, for any this factor to have meaning stopping way a is in no routine. “the go officer must beyond intend questioning I not do contend that all customary and routine boarding stopped which vessel occurs aboard a for a opinion search.” The then concludes that documentary safety inspection al- is subjective intent of the officer not was Rather, ways simply custodial in nature. I hold defendant since “the record does feel that certain are factors relevant to that not reflect he that intended to take Thomas though determination even these events custody Warren into point.” at that may happen in most Coast stoppings. approach This creates several serious For example, it seems most unrealistic to problems. The first the opinion’s is refusal propose, majority does, as the not we to consider the fact that the Stormy Seas the boarding party consider facts that forcibly stopped. The fact that such and that armed the Coast Guard cutter stoppings are routine for the Coast Guard guns had machine on its deck in order does not make the result such a stopping forcibly stop Stormy Seas had it not intimidating less for voluntarily the crew stopped. While these factors However, seized vessel. even generally present, are so pres- accepting too are the logic guns police requiring ence a behind station. Nonethe- more than what less, are both relevant of a routine stopping creation Coast Guard on the seas, It atmosphere. high custodial is seldom routine the test is met the facts of the wrong the one gun. for end of the case before us. The opinion en banc states that “the officer go must intend to beyond As pointed opinion, out the en bane the customary and boarding routine adopted Court has a four-factor test to search.” seriously cannot be disputed aid in the determination of whether an in- agents Customs and DEA here terrogation sufficiently custodial in na- in any way not involved with conduct- ture to warrant giving Miranda ing the safety documentary inspection warnings. single No factor in this test is board the agents Seas. These decisive, necessarily United States v. Mon- boarded the tos, to look cus- for 421 F.2d and a violations, drug toms and proper analysis and it is admitted involves the consideration by Agent he inquir- of all the Wallace that made the factors. The first factor ies regarding money beсause suspected consideration —whether he cause to the purpose arrest the defendant of the trip procure had arisen the time was to nar- the interrogation only cotics. factor in Wallace was in way con- —is implicates test which of a lack custo- cerned with a violation when he was government dial situation. Both questioning Warren, Thomas and this factor prior the defendant admit coupled the inter- with the serious restriction of the majority’s crystal more ball is better than movement freedom defendant’s only mine and I can assume inquiry. of our element satisfies than stopped by never been aboard a vessel opinion banc fact en is the interest Of any purpose. Coast Guard for It is incredi- intent of the subjective concludes ble to me that this Court can take the be- the defendant to hold was not officer position person reasonable reflect that does not “the record subjectively believe that his freedom of into cus- Thomas Warren take intended movement had been restricted when he is cites no opinion point.” tody at stopped a vessel which is on the on board that this fac- proposition authority for the high by the Coast Guard. Added to seas if there is an only satisfied test is in our tor in our case this is the fact that take presently part officer’s on the intent being questioned by people Warren was custody. The reason into the defendant nothing with the who had to do actual supporting is without proposition that this safety documentary inspection. and As a is not the because it probably is citation result, might whatever have been routine for be made. In order inquiry to relevant stop of the about the Seas lost this take present intent to to have an officer subject- when the vessel characteristic was custody proba- he must have subject into to an extensive search of ed areas where inquiry in arrest. Our initial cause to ble obviously violations could not be probable test was whether four-factor our baffling to me found. It is also that the en makes no sense existed. It to arrest cause that opinion banc can conclude the defend- if in the second factor examine to even did not believe his freedom of move- ant have met the satisfy you it must to order restricted because he was still ment to be factor, especially is so in this and this first cover-up story. The relevance of using his if cause a situation where sort of subjective belief of the defend- this to exists, naturally it follows then to arrest beyond his freedom is me. I regarding ant subject intends to take that the officer however, understand, that the en banc do Obviously,this factor can be custody. into to opinion considers this somehow relevant an officer’s something less than satisfied whether the determination of defendant subject into custo- actually take a to intent subject “imminently considered himself to before the factual situation dy, and I think earlier, pointed the test arrest.” As out this factor. us satisfies previously adopted has is wheth- this Court subjectively er the believed that defendant an examina- inquiry requires third Our signifi- his freedom of movement had been of the subjective belief of whether tion cantly restricted and not whether the de- of move- was that his freedom defendant imminently subject fendant feels that he is The en significantly was restricted. ment completely to arrest. These two tests are that that “to the extent opinion states banc different, and if the en banc proposes Court routine, the boarding inspection are test, change to the relevant then it should coerced,” and not feel should defendants acknowledge exactly what its intentions “whether Thom- inquiry is the relevant that are. the time of the that at Warren believed interrogation boarding questioning, The final factor we are to consider customary that beyond the gone so far determining whether Thomas Warren was subject to arrest.” imminently he was whether warnings entitled to Miranda is that the defendant concludes then had focused on the de- opinion investigation signifi- freedom to be interrogation. believe his the time of the I did not fendant at ques- at the time is cantly supplied restricted think the answer to this questions ques- that his responses his Wallace’s admission tioning because ex- regarding money prompted by corroborate his earlier were intended to tions trip purpose trip his that purpose of his belief for the planation Record, 2, at enterprise bring to be back narcotics. Vol. believed the thus he still questioning, Agent 77. At the time questioning. the time of the viable at possible it believed that the defend- is for certainly investigation Wallace an illegal operations, focused on a ant was involved defendant even though proba- infor- cause designed to elicit ble to arrest questioning his does not exist. In Unit- The en substantiating Carollo, this belief. ed mation F.2d 50 however, it is only states that opinion, banc Court examined a factual situa- investigation shifts to the accusa- tion which it only when an decided that the fourth sufficiently might focused factor tory stage present. is be con- Court criterion, and that officers that a under this where cluded defendant could not be “in custody” a federal trying purposes ascertain if Miranda merely are if “the focus committed, accusatory present.” factor alone is crime has been Id. at 53. The begun. however, of this stage yet support opinion, has not In Carollo acknowledges opinion Eight cites a 1966 the “focus” proposition, the factor could present though probable en banc Unfortunately, Circuit even cause case. does not exist. any insight opinion provide hardly possible fails us with This under the majority’s investigation analysis becomes exactly analysis when since that implies that the accusatory, evidently majority feels focus of an interrogation but is on a defendant only interrogation this line has not been crossed when when the becomes accu- governmental satory, admit be- apparently officers happens only if cer- officer people conducting lieve certain have committed the investigation has questioning (or tain crimes their something close to proba- cause) uncover solely initiated more substantial ble to believe that the suspect has agree crimes. I evidence of those cannot been involved in activity. criminal Such an approach with this conclusion. We are not faced improper determining whether governmental investigation with a situation where a offi- an has focused on a defendant general cer is to conducting questioning only a is not unsupported the authorities Rather, cited, wide variety people. of but would also significantly reduce Wallace admitted that he believed Thomas the number of police situations in which the run, Warren a drug to be on and that his be required give to warn- Miranda questions regarding money designed ings. analysis of en bane opinion to elicit supporting evidence belief. this If makes determination regarding proba- this sort investigation of is not “focused” cause ble critical to the outcome of the defendant, then I do not simply inquiries in three of four to be factors exactly understand what makes a confron- Consequently, considered. since fac- no one tation governmental between a officer and decisive, tor can be once court determines a suspect “accusatory.” It appears probable exist, that cause does not it has majority feеls ques- that answer this to for all intents purposes made deter- tion quantum turns quality on the of warnings mination that Miranda need not evidence government’s within the given. be I do not that is the believe knowledge. does But Circuit, mean an of law this nor do I think such a investigation by an officer who not is arm- position is constitutional. The Supreme (or ed with something close Court said in Beckwith probable cause) to cannot have focused on a (1976), U.S. 341 that focus for Miranda ' Apparently, majori- defendant? this is the purposes questioning occurs when is initiat- ty’s position, trouble this anal- law per- ed enforcement officers after a ysis is that it our finding makes on the has deprived first son of his of freedom (the probable cause inquiry) factor critical significant way. actions The result to our determination the focus analysis opinion factor. en banc is to in the again majority engaged Once has say person deprived that a be cannot his counting. Obviously, double this fourth unless freedom actions a law enforce- something factor must mean different than ment officer has cause to believe a factor, and a first case cited has been is crime committed. This result majority opinion supports this position illogical untenable. right silent, another Fifth remain presents might still and one

This case con- This exactly relates sider problem. privilege what value the Amendment trial regard- Battell at testimony Agent remain silent right and the to an attorney his statement ing Thomas Warren’s we going have if are to allow a jury to to remain silent. and Cruse brother negative draw inferences from the advice reception of the testi- issue whether attorney might give that an ato defendant impermissible com- mony constituted his regarding right to remain silent. Ac- right to si- on Warrens’ remain ment cordingly, I believe the Fifth Amendment recep- holds that opinion The en banc lent. encompasses just more than the actual ex- testimony permissible un- of this tion silent, ercise of the privilege to remain in that Amendment the testi- der Fifth enough preclude is broad comment on an a comment on the mony “did not constitute attorney’s advice to his client to remain right to remain exercise of the Warrens’ silent. Of some interest is whether Thomas argues opinion that all silent.” The en banc attorney Warren —who is an said —could indicated was that testimony acting capacity to have been in that when his brother and advised Warren he made statement to his brother and say anything. Consequently: Cruse not to point Cruse. This is a with which the en known not havе whether jury could opinion preferring banc does in- deal— heeded. The testi- was in fact advice rely language stead to on broad permitting imply that Thomas War- mony does not any type except comment a comment on right; exercise his ren chose to himself right the actual exercise of the remain the others not merely admonished My point predi- silent. dissent to this speak. more on sweep cated the broad of the lan- Majority p. 1073. opinion guage of the rather opinion en banc than to consider the the actual interesting potential It is result in this case. seems opinion’s position on opinion effects of the en banc unfortunate that the en banc did on the exer- point. If comment actual language, not restrict the breadth of remain silent right cise of one’s is all deal instead facts of unique with the Amendment, the Fifth is prohibited by is Possibly, might case. the same result everytime a saying this Court then law been further having reached without re- an attorney officer hears ad- enforcement rights strict the of American citizens. it is permissi- his client to remain silent vise testify to this trial? ble for that officer to C. Conclusion Or, every is saying the court time is Nothing dissent in- contained in this attorney, per- it is requests defendant Guard, of the Coast tended be critical testimony regard- missible at trial to enter or the Drug Agency Enforcement Customs ing that advice of request? The an attor- agents are government in- officials. These ney certainly ought remain silent drugs.” The against in a seri- volved “war protected though testimony even limited and the full problem ousness of this conse- scope just way in no point to this reflects ques- can not be quences their action heeded, ‍​‌‌‌‌​‌‌‌​‌‌​‌‌​‌​​‌‌‌​​​​​‌‌​‌‌​​‌​​​‌‌​​​‌​​‌‌‍actually whether the advice was Their has assisted all tioned. candor and, therefore, way in no comments on the focusing upon the real issues involved. But right actual exercise of remain silent. that if history proved has over and over we doubt, however, one intro- No can are to retain the basic freedoms that make testimony highly prejudi- duction of such unique, sight us we must never lose cial, seriously no one should contend importance preserving our basic constitu- prejudicial this case rights. Today’s greatly tional action under- to the effect one testimony introduce Warren) mines the Fourth and Fifth Amendments. (Thomas had advised codefendant rights (John Warren) tragically Our Court has diluted to re- another codefendant just beyond of American citizens when sail testimony as in- main silent. Such high point on a the twelve mile onto a comment defendant’s seas. I culpatory as reluctantly dis- holding regret such

sent.

Herby and Lucille BERRYHILL Plaintiffs-Appellees,

Berryhill, PENSACOLA, corpo PLAN OF

RICH al.,

ration, Defendants-Appellants. et

No. 76-3046. Appeals, States Court of

Fifth Circuit.

Aug. 1978.

Rehearings Denied Oct.

Case Details

Case Name: United States v. Thomas A. Warren, John L. Warren, Jr., Des. E. Schick and David Defina

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 24, 1978

Citation: 578 F.2d 1058

Docket Number: 75-4368

Court Abbreviation: 5th Cir.