United States of America, Plaintiff-appellant, v. Eduardo Herrera, Defendant-appellee, 711 F.2d 1546 (11th Cir. 1983)

The government appeals the district court's order suppressing physical evidence found during a search of appellee's vessel, the Sea Wind, and certain statements the appellee made prior to and during the search of the vessel.¹  The government also appeals the exclusion of statements the appellee made during a post-arrest interrogation. We reverse the suppression of the physical evidence and the statements made prior to and during the search. We affirm the suppression of the statements made during the post-arrest interrogation.

This case grows out of FBI anti-terrorist activities in the Miami area. Near the time of the search in question agents had been closely monitoring a Cuban exile group, Alpha 66. The group's stated purpose was to overthrow the Castro regime in Cuba. It had been conducting an extensive propaganda campaign about a "Plan Maximo Gomez," under which group members would enter Cuba to carry out a program of sabotage.

On January 14, 1981, FBI special agent Diaz received a telephone call that a 14-foot red and white boat would be used to take several men to Cuba the next day. The tipster, speaking in Spanish, said the boat was somewhere in Miami and that a group of men armed with rifles, handguns, and possibly explosives would transport the boat by land to the Key Largo-Marathon area the next morning, where it would be launched. A larger boat would be used to tow the smaller boat at least part of the way to Cuba. Agent Diaz personally interviewed the informant that same evening for an hour and a half, during which time the informant repeated his prior statements. The informant had not previously provided information to law enforcement authorities.

Acting pursuant to this tip, the next day FBI agents maintained surveillance of U.S. 1--the only access road from Miami to the Florida Keys--and in Key Largo spotted a camper-type pickup truck containing seven male passengers heading south and towing a 14-foot red and white boat. The agents followed the truck to the Knight's Key Camp Grounds in Marathon, Florida, where they observed a larger 28-foot boat, the Sea Wind, moored at the Knight's Key marina, about 10 to 15 yards south of where the truck had parked. Both boats and the truck remained stationary throughout the afternoon.

Observing with a night vision scope, two agents saw an individual transfer a package two or three feet in length from the smaller boat to the larger boat at about 7:00 p.m. that evening. Another such transfer occurred at 8:15 p.m. The agents observed seven individuals on the Sea Wind and saw some of them walk to the smaller boat and back to the Sea Wind at intervals. An agent testified that he saw persons aboard the Sea Wind reading what appeared to be charts or maps, but conceded that from his observation point 1/2 to 3/4 miles from the boat, they could as well have been reading newspapers.

Around 11:00 p.m., the agents saw the lights go out on the Sea Wind, and then at 12:15 a.m. they saw the lights go back on. Activities aboard the boat increased at this time and individuals were seen moving about and talking. A supervising agent called an assistant U.S. Attorney to determine the agents' authority for a search. Concluding there were possible customs violations involving firearms, the FBI agents decided to call for the assistance of Customs officers. Two Customs officers arrived shortly thereafter, and conferred with the FBI agents about authority to conduct a search. After the conference with FBI agents, Customs officer Hoversen concluded that Customs authority permitted a search.

An armed group of FBI agents and Customs officers approached the Sea Wind, with the Customs officers in the lead. The appellee shouted out "we see you, we see you" as the officers approached, as if to indicate that those on the boat intended no resistance. The Customs officers identified themselves as such, and asked who was in charge; appellee replied "I'm in charge of the boat." The Customs officers next stated that they were going to search the boat, and the rest of the search party began removing the men from the boat.²  FBI agents placed the men against a fence at the marina and frisked them for weapons.

Two Customs officers and an FBI explosives expert then boarded the boat. Officer Hoversen immediately noticed partially covered rifles next to the cabin door. As the search began, appellee--now off the boat--volunteered the statement that there were weapons on board that would be found anyway. The search produced three rifles, two handguns, and smoke grenades.

The officers next proceeded to the smaller boat, which had remained attached to the pickup truck throughout. Appellee immediately warned the agents guarding him that there were explosives on that boat, adding that he did not want anyone to get hurt. He stated further that the explosives were inside plastic bags. An agent gave this information to Customs officers who found a .50 caliber recoilless rifle, six plastic bags containing pipe-bombs, and a package with handguns and ammunition.

The grand jury returned an indictment against appellee and the six others present charging them with receiving and possessing 12 illegal pipe-bombs; receiving and possessing 12 fragmentation grenades without serial numbers; and receiving and possessing an unregistered pipe-bomb. The indictment also charged appellee with receiving, possessing, and transporting in commerce as an illegal alien in the United States a number of other weapons.³ 

Appellee moved to suppress the weapons found on the two boats and the statements he had made to the officers on the scene. The district court granted the motion with regard to the weapons found on the Sea Wind. It ruled first that probable cause for a search of the Sea Wind did not exist at the time of the initial boarding. The court also ruled that the initial seizure and subsequent search of the Sea Wind could not stand on the authority of 19 U.S.C. § 1581(a) (1976). It reasoned that section 1581(a) constitutionally authorizes the boarding of a vessel without suspicion of illegal activity for purposes of making document and safety inspections, but not for the purpose of making weapons searches, the sole purpose of the boarding here. Finally, it concluded that, although section 1581(a) might constitutionally authorize a weapons search premised upon a reasonable suspicion of illegal activity based upon articulable facts, section 1581(a) did not authorize the search in question because there was no evidence of a border crossing, which the court apparently believed was an additional constitutional requirement.

Having ruled the search of the Sea Wind illegal, the district court also suppressed appellee's statement "we see you, we see you" upon the approach of the search party; the statement that he was in charge of the Sea Wind; and the statement that there were firearms aboard the Sea Wind that would be found anyway. The court implicitly ruled all three statements to be fruits of the illegal search of the Sea Wind.⁴  The court also suppressed any statements the appellee made at the Coast Guard station where he and the others were taken after their arrest. The court found a "blatant disregard" of appellee's request to stop the interrogation in the absence of his lawyer, and ruled that any statements made were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The district court erred in taking an unduly restrictive view of the authority of Customs officers to search vessels in customs waters in the absence of a border crossing.⁵  We hold today that where Customs officers have a reasonable suspicion that Customs violations exist, they may board a vessel to conduct a limited "search" of the non-private areas of the vessel.⁶  This authority is constitutionally reasonable without a prior border crossing. Applying this standard to the present case, we find that Customs officers had ample facts upon which to base a reasonable suspicion that Customs violations existed. The resulting boarding of the Sea Wind was thus reasonable under the fourth amendment. Suspicion ripened into probable cause the moment the officers boarded the vessel because they discovered weapons in plain view on the deck of the Sea Wind. The combination of probable cause and exigent circumstances present here would have authorized a full search of all areas of the Sea Wind at that point. See text 1555-1556 infra.

Appellee's statements prior to and during the search are thus not tainted with illegality, and may be used against him. We affirm, however, the district court's ruling that Miranda violations occurred during appellee's post-arrest interrogation at Coast Guard headquarters.

Our analysis of the seizure and search of the Sea Wind follows the structure set out by the Supreme Court in United States v. Ramsey, 431 U.S. 606, 97 S. Ct. 1972, 52 L. Ed. 2d 617 (1977). Under Ramsey, we must first determine if the warrantless seizure or search is authorized by statute. If statutory authorization exists, then we must determine if the seizure or search, as authorized, was reasonable under the fourth amendment.⁷  See United States v. Williams, 617 F.2d 1063, 1074 (5th Cir. 1980) (en banc).⁸ 

The government asserts that 19 U.S.C. § 1581(a) authorized the search of the Sea Wind. That statute provides in pertinent part:

Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters ... and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and ... any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.

The plain language of section 1581(a) endows Customs officers with very broad authority to seize and search any vessel and every part thereof at any time without any cause or suspicion whatsoever; this clearly sufficed to authorize the search in question here. We thus proceed to the second part of the Ramsey inquiry: whether the search was reasonable under the fourth amendment.

The failure of the case law to distinguish among maritime, land, and airplane searches for purposes of determining the reasonableness of those searches has resulted in much confusion in the law of Customs searches. It is of paramount importance to maintain these distinctions, for what is reasonable in a fourth amendment context depends upon the specific facts and circumstances of each case. Chimel v. California, 395 U.S. 752, 765, 89 S. Ct. 2034, 2041, 23 L. Ed. 2d 685 (1969) (quoting United States v. Rabinowitz, 339 U.S. 56, 63, 70 S. Ct. 430, 434, 94 L. Ed. 653 (1950)). We have stated "the principles from automobile, aircraft and boat cases do not necessarily translate literally from their discrete factual settings to the others ...." United States v. Whitmire, 595 F.2d 1303, 1307 n. 2 (5th Cir. 1979), cert. denied, 448 U.S. 906, 100 S. Ct. 3048, 65 L. Ed. 2d 1136 (1980). Indeed, we have explicitly cautioned that "since a section 1581 [maritime] seizure does not require any suspicion of criminal activity, it is clear that land-based 'stop and frisk' law does not necessarily apply to stops of vessels on the seas." United States v. Williams, 617 F.2d at 1081.⁹ 

The distinction between border searches and other Customs searches has also become muddled, as the district court's ruling evinces. In United States v. Ramsey, the Supreme Court pointed out that " [b]order searches ... have been considered to be 'reasonable' by the single fact that the person or item in question had entered into our country from outside." 431 U.S. at 619, 97 S. Ct. at 1980. Therefore, if a crossing of the border is established, a routine search is reasonable without a showing of probable cause. The difficulty in this case arises from the district court's erroneous assumption that a boarding and limited search pursuant to 19 U.S.C. § 1581(a) requires proof of a border crossing to be constitutionally reasonable. Our cases have clearly distinguished between border searches which are reasonable because they occur at the border and limited Customs searches in the maritime context which are reasonable if based on a reasonable suspicion of Customs violations. Limited Customs searches are reasonable under the fourth amendment without a showing of probable cause, although a border crossing has not been proved, because of the diminished expectation of privacy inherent in the maritime setting. Thus such searches do not require proof of a border crossing to establish their fourth amendment reasonableness. We now discuss those cases which establish the constitutional reasonableness of limited Customs searches in the maritime context.¹⁰ 

In United States v. Freeman, 579 F.2d 942 (5th Cir. 1978), this court analyzed the authority of Customs officers to detain and board vessels for the limited purposes of making document and safety checks. Drawing upon " [p]recedent, the unique circumstances and problems of the maritime context, and the historical origin of § 1581," id. at 946, the court concluded that the seizure and boarding of a vessel to make document and safety inspections in Customs waters is constitutionally reasonable even without reasonable suspicion of Customs violations. Id. at 945-47. Accord United States v. Postal, 589 F.2d 862, 889 (5th Cir.), cert. denied, 444 U.S. 832, 100 S. Ct. 61, 62 L. Ed. 2d 40 (1979). In United States v. Whitaker, 592 F.2d 826, 829 (5th Cir.), cert. denied, 444 U.S. 950, 100 S. Ct. 422, 62 L. Ed. 2d 320 (1979), the court extended the Freeman-Postal rule to govern stops that occur within the coast, coastwise of Customs waters, at least concerning vessels initially sighted within Customs waters. The court reasoned:

The difficulty of policing the ocean frontiers, the impracticality of stopping vessels at a designated point in the water, the brief and routine nature of the detention, and the broad powers historically granted to customs officials--these factors continue to counsel a finding that the officers acted reasonably, and thus constitutionally, in exercising their statutory authority to detain the yacht for a simple document check.

Id.¹¹ 

In United States v. Whitmire, 595 F.2d 1303, 1313 (5th Cir. 1979), the court had to determine the reasonableness of detention and boarding of vessels when the purposes of Customs officers were more intrusive than mere document and safety inspections. In that case, Customs officers initially sighted a boat inside the shoreline, speeding from an inlet toward an inland waterway. The boat rode heavily in the water, producing an excessive bow wake. The officers testified that during the past year, about 25 similar boats that size producing such a wake had been stopped and found loaded with marijuana. Considering this and other suspicious circumstances, the officers decided to stop the boat to investigate further. However, they were unable to overtake the boat until it was docked on a canal behind the house of one of the appellants. The officers asked the two appellants, then on shore, for their identification and registration papers. One appellant could produce no identification, and the boat registration they had was unsigned and made out to a car company. Still suspicious, one officer boarded the boat while the other watched the two men. The boarding officer instantly smelled a strong odor of marijuana, opened the hatch, and saw large quantities of baled marijuana.

In these circumstances, neither border crossing authority nor section 1581(a) document and safety check authority was available to render the boarding and search reasonable under the fourth amendment. The court undertook a detailed balancing of the interests implicated by boat searches, resisting "the urge to impose uncritically on boat searches the set of standards governing auto searches on our internal highways." Whitmire, 595 F.2d at 1312. The court focused on three factors in determining the reasonableness of a governmental intrusion in the maritime context: (1) the degree of privacy one may reasonably expect, according to the type of vessel and the particular area of it to be searched; (2) the degree of intrusion on protected privacy caused by the specific governmental action; and (3) the governmental interests vindicated by the particular intrusion. Id. at 1312-15. It noted that there can hardly be a legitimate expectation of privacy on the open deck of a fishing vessel or in the hold of a hired cargo vessel, id. at 1312,¹²  and that " [t]he heavy overlay of maritime law and the long practice of regulatory stops, inspections and searches" by Customs officers further diminish the privacy interests of sailors. Id. at 1313. It concluded "the fourth amendment allows the boarding of a pleasure craft, sighted initially in intercoastal waters, as to which officers have a reasonable suspicion of a Customs violation--a boarding that occurred after an unsatisfactory document check on shore." Id. at 1315-16.

After Whitmire, it is clear that " [a] recent nexus to the border is not a prerequisite for an investigatory stop based on reasonable suspicion." United States v. Castro, 596 F.2d 674, 676 (5th Cir.), cert. denied, 444 U.S. 963, 100 S. Ct. 448, 62 L. Ed. 2d 375 (1979) (citation omitted). Although Castro dealt with a vessel observed by Customs officers only in inland waters, its holding applies a fortiori to boardings carried out in Customs waters where the right of Customs officers to board a vessel without a modicum of suspicion in order to conduct document and safety checks further diminishes a sailor's expectation of privacy. Thus, after Whitmire, we have sanctioned investigatory stops of vessels observed in Customs waters based on reasonable suspicion even though the evidence precluded a finding that the intent of the Customs officers was to make a document and safety check. United States v. Ruano, 647 F.2d 577, 579 & n. 5 (5th Cir. Unit B 1981).¹³ 

Applying these principles to the present case, we conclude that the Customs officers had ample grounds to suspect Customs violations aboard the Sea Wind at the time they boarded the vessel. The district court was correct in ruling that the informant's tip was insufficient to create probable cause under Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969),¹⁴  but erred in neglecting the value of the tip--as corroborated under the circumstances--in giving the Customs officers reasonable suspicion of Customs violations. The standards governing probable cause for a full search must not be confused with those governing investigative boardings and limited searches: " [n]either the tests of reliability demanded for a showing of probable cause nor, indeed, a showing of probable cause is required to justify an investigative stop." United States v. Rollerson, 491 F.2d 1209, 1211 (5th Cir. 1974). The Supreme Court's analysis in upholding an investigatory stop-and-frisk based on a tip incapable of meeting the Aguilar-Spinelli requirements is instructive:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.... The informant here came forward personally to give information that was immediately verifiable at the scene. Indeed, under Connecticut law, the informant might have been subject to immediate arrest for making a false complaint had [subsequent] investigation proved the tip incorrect. Thus, while the Court's decisions indicate that this informant's unverified tip may have been insufficient for a narcotics arrest or search warrant, [citing Aguilar and Spinelli ], the information carried enough indicia of reliability to justify the officer's forcible stop of Williams.

Adams v. Williams, 407 U.S. 143, 145-47, 92 S. Ct. 1921, 1923-24, 32 L. Ed. 2d 612 (1972) (footnote omitted).

As in Adams, in this case the informant came forward and met with FBI agents personally to provide information. He thus exposed himself to prosecution under 18 U.S.C. § 1001 (1976),¹⁵  for making false statements in a matter within the jurisdiction of a United States agency. Moreover, the agents' independent observations partially corroborated the informant's tip. They observed a boat matching the description given them being towed to a location in the Florida Keys and being placed near a larger boat moored in the water. They also observed a group of men moving back and forth between the towed boat and the larger boat, and saw two individuals transport long, light-colored packages of a size that might have contained weapons from the smaller boat to the larger boat. Finally, Customs officer Hoversen testified that his observation that seven people had constricted themselves on a small, 28-foot vessel late at night aroused his suspicions. He believed that they must have been ready to "depart for someplace."¹⁶  Viewing this case from the perspective of the "totality of the particular circumstances" known to the officers, United States v. Brignoni-Ponce, 422 U.S. 873, 885 n. 10, 95 S. Ct. 2574, 2582 n. 10, 45 L. Ed. 2d 607 (1975), including the propaganda about Plan Maximo Gomez circulating at the time, we have no doubt that the officers possessed sufficient articulable facts, taken together with reasonable inferences from those facts, to support a reasonable suspicion of Customs violations, i.e., the illegal exportation of firearms.¹⁷ 

Possessing reasonable suspicion of a Customs violation, the Customs officers, accompanied by FBI agents, were entitled to board the vessel to investigate their suspicions. We need not address here the permissible scope of the search authorized by section 1581(a), for there is no claim that Customs officials intruded upon any private area of the vessel. There can be no reasonable expectation of privacy concerning the open deck of a vessel subject to a valid investigatory boarding under section 1581(a). See note 12 supra and accompanying text.

Once aboard the vessel, Customs officer Hoversen "immediately saw the barrels of rifles or rifle-type weapons ... by the cabin door of the boat." At that point, reasonable suspicion of Customs violations became probable cause to believe crime was being committed. Every detail of the informant's tip had been corroborated except one: that the vessel would leave for Cuba in order to use the weapons. Agents observed a 14 foot, red and white vessel move into the predicted area; saw weapons-sized packages being moved from that vessel to a larger vessel moored in the water, as predicted; observed seven individuals crowded into the 28 foot vessel late at night; and confirmed that rifles had been moved aboard that vessel.

Having verified every facet of the information given them by their informant except for the fact that the vessel would leave for Cuba, the Customs officers and FBI agents "had 'reasonable grounds' to believe that the remaining unverified bit of [the informant's] information ... was likewise true." Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 333, 3 L. Ed. 2d 327 (1959). The informant's tip, inadequate to establish probable cause standing alone, had been buttressed by both types of corroboration permitted in this circuit: "independent observation substantiating the details of the tip" and "independent observations of activity reasonably arousing suspicion itself." United States v. Brand, 556 F.2d 1312, 1318 (5th Cir. 1977), cert. denied, 434 U.S. 1063, 98 S. Ct. 1237, 55 L. Ed. 2d 763 (1978). The Customs officers thus possessed probable cause for the subsequent stem-to-stern search of the Sea Wind.¹⁸  Furthermore, because "exigence is to be determined as of the time of seizure," United States v. Mitchell, 538 F.2d 1230, 1232 (5th Cir. 1976) (en banc), cert. denied, 430 U.S. 945, 97 S. Ct. 1578, 51 L. Ed. 2d 792 (1977), exigent circumstances, if such were required, existed in the form of a vessel laden with arms and possibly explosives.

Having determined that the seizure and search of the Sea Wind was permissible under the fourth amendment, it follows that the district court's suppression of various statements the appellee made prior to and during the search cannot be supported on the ground that the statements were the fruits of an illegal search. Nor do the strictures of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) apply to any of these statements. Concerning appellee's response to the inquiry of Customs officers that he was "in charge" of the Sea Wind, we have held: "Miranda warnings are unnecessary during routine questioning and searches by customs agents and during a routine boarding and inspection of an American vessel on the high seas by the Coast Guard." United States v. Henry, 604 F.2d 908, 915 (5th Cir. 1979) (citations omitted). Concerning his statement that "there are guns aboard [the Sea Wind ]; they'll eventually be found," there is no evidence in the record that this statement was the product of coercive, custodial interrogation; the record on this point, although sparse, indicates only that appellee volunteered this statement after being removed from the vessel. Indeed, FBI agent Briones testified that no questions had been directed to appellee prior to his being transported to a Coast Guard station and advised of his rights. Absent custodial interrogation at the time the statement was volunteered, Miranda furnishes no grounds for the suppression of this statement. See Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. Thus, the district court erred in excluding these statements.

The court also suppressed any statements by appellee "given at the Coast Guard station subsequent to the time of his Miranda warnings." The court held that questioning continued after appellee requested an attorney, and that the blatant disregard of this request violated the strictures of Miranda. Although the court explicitly stated that "the testimony is basically not in conflict between the FBI witness and the defendant," the government argues on appeal that there was a conflict in the testimony concerning when appellee requested an attorney, which conflict the district court erroneously failed to resolve.

Under Miranda, when an accused subject to custodial interrogation asks for the assistance of counsel "the interrogation must cease until an attorney is present." Miranda v. Arizona, 384 U.S. at 474, 86 S. Ct. at 1628. This is a "rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease." Fare v. Michael C., 442 U.S. 707, 719, 99 S. Ct. 2560, 2569, 61 L. Ed. 2d 197 (1979). In Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), the Supreme Court held that

when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [A]n accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.

451 U.S. at 484-85, 101 S. Ct. at 1884-85 (footnote omitted).

The record in this case fully supports the district court's conclusion that custodial interrogation continued after appellee's request for counsel, and that there was no valid waiver of that right. The appellee stated that he had asked for a lawyer twice, once at the beginning of the questioning and a second time about half-way through the questioning. Agent Briones conceded on cross-examination that the appellee did ask for a lawyer several times, and that he continued his questioning because a lawyer was not available. There was no conflict in the testimony on that point. Thus, the district court correctly suppressed these statements.

In sum, we reverse the district court's suppression of the physical evidence seized from the Sea Wind and appellee's statements made prior to and during the search. We affirm the suppression of appellee's responses to inquiries at the Coast Guard station pursued in violation of his Miranda rights.

AFFIRMED in part; REVERSED in part and REMANDED.

HATCHETT, Circuit Judge, concurring specially.

I join in the judgment in this case because the teachings of Illinois v. Gates, --- U.S. ----, 103 S. Ct. 2317, 76 L. Ed. 2d 527, requires reversal of the trial court's suppression of the physical evidence seized from the Sea Wind and the statements made during the search.