Opinion
Case Number: 03-20895-CR-MARTINEZ-KLEIN.
April 30, 2004
REPORT AND RECOMMENDATION DENYING DEFENDANTS' MOTION TO SUPPRESS
THIS CAUSE came before the Court on April 26, 2004, for a hearing on Defendant Julio Cesar Diaz's Motion to Suppress and supporting memorandum of law (D.E. Nos. 31, 32). Co-Defendant Gregario Rafael Suarez joined in the motion to suppress. (D.E. Nos. 38, 42.) The government filed a Response opposing the motion (D.E. No. 44), and Defendant filed a Reply (D.E. No. 53). At the hearing, two law enforcement officers testified; neither Defendant elected to take the stand Having carefully considered the motion and the arguments of counsel, the testimony of the witnesses, and being otherwise fully advised in the premises, the undersigned Magistrate Judge reports and recommends that the motion to suppress be denied, for the following reasons: FINDINGS OF FACT I. Background
This motion was referred to the undersigned for submission of proposed findings of fact and recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1) and the Magistrate Rules of the Local Rules of the Southern District of Florida. (D.E. No. 52.)
This case arises out of the stop and search of a 50-foot motor boat called the "Happy Lady" on October 22, 2003, in inland waters near Miami Beach, Florida, and the subsequent seizure of approximately 151 pounds of cocaine from a secret "dead space" area not designed for storage or otherwise, inside the salon area of the vessel. Defendants have moved to suppress the evidence seized during the search. The government challenges the standing of both Defendants to contest the search and further argues the stop was valid and the search the product of valid consent.
On October 22, 2003, U.S. Immigration and Customs Enforcement Marine Enforcement Officer Brandon Snader was advised of an anonymous tip specifying that a large Sea Ray vessel named the "Happy Lady" would be coming into port in Miami Beach that day with an unknown quantity and type of narcotics. At approximately five p.m. that evening, Officer Snader and his partner were at the Miami Beach Marina when Snader spotted a large off-white boat traveling west at a high rate of speed, from the open ocean toward the intercoastal waterway. Using binoculars, he verified the name on the boat was the "Happy Lady." Officer Snader called another unit to advise he had sighted the vessel. Shortly thereafter, U.S. Marine Enforcement Officer Thomas Molloy and two other officers stopped the boat near Hibiscus Island, approximately one mile west of the Miami Beach Marina.
Officer Snader arrived on the scene and saw two men on deck: behind the wheel was Defendant Julio Cesar Diaz, whom he had observed operating the vessel, with Defendant Gregorio Rafael Suarez in close proximity. Officers Snader and Molloy boarded the vessel to conduct a documents check although they also suspected the vessel might be carrying narcotics. Officer Snader requested documentation relating to the vessel as well as personal identification from the men. The men appeared visibly nervous, and their hands shook when they presented the requested documentation to the officer. All the paperwork appeared to be in order. Neither Defendant was the owner of the boat, but Diaz told Molloy he had permission from a friend to take the boat from Port Everglades in Ft. Lauderdale. Officer Snader learned that the men said they had been running the boat along the coast, which did not make sense to him as he had observed a large amount of seaspray on the windshield and hull of the boat, indicative of boating in heaving seas. Based on his experience earlier that day of being eleven miles out in the Atlantic Ocean, he knew the seas were heavy farther out but calmer closer to shore.
Officer Snader was concerned there might be other people on board, so he asked for consent to search the boat. Diaz replied "go ahead," Suarez did not respond, and the officer went below deck to conduct a search. There was no one else on board, and nothing seemed out of the ordinary, so he went back up on deck.
Officer Snader asked a second time for consent to search, and Diaz said, "Look anywhere you want, man." Suarez again did not respond. In a closet in one of the below-deck staterooms, the officer found a backpack with Suarez's passport and $1,000 cash inside. Next to the backpack was an unzipped duffel bag; inside the bag was a towel onto which was imprinted a brick-type shape. Officer Snader thought it could be the outline of a kilogram-sized package of contraband At that point, the officer stopped his search because Suarez, from his vantage point on deck, could see down into the main salon area of the cabin, and Officer Snader did not want to escalate the situation if he found contraband
Officer Molloy testified that the boat had been drifting toward shallow water and he thought it would be more secure to search the "Happy Lady" at the Coast Guard station, where it could be accomplished without putting anyone or the boat in danger. Then, without objection, Diaz drove the boat to the Coast Guard station.
A K-9 unit was taken aboard and the dog alerted to three areas inside the main salon, including an area underneath the stairs. Officer Snader looked in the storage bins underneath the stairs and, through a 2-2½ inch crack in one corner of the top bin, he saw a black plastic trash bag with the aid of a flashlight. The bag was in a dead space area behind the seating area in the salon. He stuck his hand through the opening and felt a brick-type package.
After removing panels screwed into the walls of the main salon which were situated behind storage compartments underneath the seating area, officers discovered 60 packages of cocaine weighing approximately 151 pounds. As packaged, the cocaine could be reached only by removing the wall panels; it was not accessible through the small crack in the top storage bin underneath the stair. After the contraband was discovered, Defendants were placed under arrest.
II. Analysis Standing
The Fourth Amendment protects individuals from unreasonable searches and seizures by government agents. Only persons who actually enjoy a reasonable expectation of privacy have standing to challenge the validity of a government search. Rakas v. Illinois, 439 U.S. 128, 143 (1978). To have standing to challenge a search, a person "must manifest a subjective expectation of privacy in the invaded area that `society is prepared to recognize as reasonable.'" United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998) (quoting Rakas, 439 U.S. at 143 n. 12). The person who challenges a search bears the burden of proving standing. Id.
The Court has no difficulty concluding that Suarez lacks standing to object to the search of the "Happy Lady." There is no evidence in the record that he had any connection to the vessel other than as a passenger. "It is clear that `mere presence' aboard a vessel is insufficient to confer standing." United States v. Sarda-Villa, 760 F.2d 1232, 1236 (11th Cir. 1985) (citation omitted). See also Cooper, 133 F.3d at 1398 (a passenger usually lacks a privacy interest in a vehicle that the passenger neither owns nor rents, regardless of whether the driver owns or rents it). As Suarez has failed to establish any connection with the "Happy Lady" other than his presence on the vessel when it was stopped, he lacks a privacy interest in it and cannot challenge its search.
Turning to Diaz, the Court finds under the particular facts of this case that he has standing to object to the search of some parts of the "Happy Lady." Diaz was the driver of the boat when it was stopped. He advised Officer Molloy he had permission from the owner of the boat to operate it, and the government failed to present any evidence to the contrary. This evidence is sufficient to demonstrate that Diaz had a reasonable expectation of privacy in some parts of the "Happy Lady" and to confer on him standing to challenge the search the general areas of the vessel, i.e., those areas where personal effects might be kept. United States v. Baker, 221 F.3d 438, 442-43 (10th Cir. 2000) (although the defendant did not own car, he had substantial control over it as he had borrowed it from a friend and had been driving it for several weeks, he carried the keys with him into the probation office, and there was no evidence to show the car was stolen or that the defendant knowingly possessed a stolen car); United States v. Angulo-Fernandez, 53 F.3d 1177, 1179 (10th Cir. 1995) (though the defendant's claim that he had borrowed car from the rightful owner and his production of a registration with its owner's rightful name on it may not have been dispositive of his right to possess the car, it was sufficient to demonstrate Fourth Amendment standing); Cooper, 133 F.3d at 1398-1402 (driver of a rental car whose rental contract expired four days earlier retained a sufficient amount of control and possession over the rental car so as to be able to contest its search and seizure).
However, merely because Diaz is entitled to contest the search of the general areas of the vessel does not mean he also has standing to challenge the search of the dead space area in which the cocaine was discovered. Diaz had to show his actual or subjective expectation of privacy in the dead space area was one that society is prepared to recognize as reasonable. Sarda-Villa, 760 F.2d at 1236. Determining whether a person's expectation of privacy is one that society will accept as reasonable is a "fact-bound question dependent on the strength of his interest" in the premises "and the nature of his control over it." Baker, 221 F.3d at 442 (citing Cooper, 133 F.3d at 1398-99).
Here, as was clearly demonstrated by Officer Snader's testimony and the photographs admitted into evidence, the cocaine on the "Happy Lady" was secreted inside a compartment that was not designed for ordinary storage and was not accessible by ordinary means. It was located in a "dead" space built into the wall of the vessel and was accessible only by unscrewing panels which were situated behind the regular storage compartments underneath the seating area in the salon. Although counsel for Diaz attempted to argue the cocaine was also accessible through a small crack in the top storage bin underneath the stairs (and thus it was not really hidden in a secret compartment), Officer Snader testified his hand fit into that space only up to his wrist, but no farther. More important was his testimony that the cocaine as packaged was too large to fit through the small crack, meaning it was impossible to gain access to the cocaine from that area.
The Court finds the cocaine was secreted away and was not in an area of the vessel which society would recognize as a legitimate storage area for personal items. This Court agrees with the conclusion in Sarda-Villa, that society is not likely to recognize a justifiable expectation of privacy on the basis of a defendant's efforts to secret contraband 760 F.2d at 1236. As the Sarda-Villa court explained:
A secret compartment constructed within the confines of the hull of a ship is totally unlike a personal dufflebag or footlocker in terms of the uses to which it may be put, and the expectations of exclusive control to which it gives rise. We cannot imagine that society would recognize as reasonable the use of "dead space" in the hull of a ship, sealed with permanent material and disguised in appearance, for the legitimate storage of personal items.Id. at 1237.
This case is distinguishable from United States v. Massell, 823 F.2d 1503 (11th Cir. 1987), a case decided after Sarda-Villa was issued. In Massell, the Eleventh Circuit found that the defendant had standing to object to a search of the swing keel area of a 52-foot sailing yacht, where contraband was discovered after the vessel had been removed from the water. Id. at 1507. Critical to the court's determination was the fact that the defendant, unlike Diaz in the instant case, demonstrated he had "an unrestricted right of occupancy or custody and control of the premises as distinguished from occasional presence." Id. Although the yacht was not owned by the defendant, he testified at the suppression hearing that he had unrestricted custody and control of the yacht, including being in charge of chartering the boat for the owner-corporation. Id. Noting the government's failure to introduce contrary evidence, the court found the defendant had Fourth Amendment standing due to his unrestricted right of custody and control of the yacht. Id.
Even as the Massell court noted that Sarda-Villa does "not stand for the proposition that there is never an expectation of privacy when a secret compartment is used," 823 F.3d at 1507, it applied the well-established rule that determining whether a person has a reasonable expectation of privacy necessary to show Fourth Amendment standing requires a fact-specific analysis. Looking at the specific facts in the instant case, it is evident that Diaz is situated differently from the defendant in Massell. Diaz did not testify at the suppression hearing, so the only evidence before the Court of his custody and control of the "Happy Lady" is his operation of the vessel and his statement to Officer Molloy that he had permission from a friend to take the boat from Port Everglades in Ft. Lauderdale. Neither of these facts establishes his "unrestricted right of occupancy or custody and control . . . as distinguished from occasional presence on the boat." Id.
Based on the evidence adduced at the suppression hearing, the Court concludes that Diaz failed to show he had a reasonable expectation of privacy in the secret compartment where the cocaine was discovered. He therefore lacks standing to challenge the search of that compartment. Because the Court finds that neither Diaz nor Suarez has Fourth Amendment standing to object to the search of the secret compartment where the cocaine was discovered, the Court recommends the motion to suppress be denied.
Boarding of the "Happy Lady"
Even if Defendants had established standing, the Court finds the officers did not violate the Fourth Amendment when they stopped and boarded the "Happy Lady" to conduct a documentation check. 19 U.S.C. § 1581(a) authorizes customs officials to board any vessel at any time and at any place in the United States to examine the vessel's documentation. This is so even if the officer's true motive is to satisfy his suspicion that the vessel is carrying contraband In United States v. Albano, 722 F.2d 690, 695 (11th Cir. 1984), the Eleventh Circuit held that "Customs officers may board a vessel in Customs waters to check its documents even if the boarding serves merely as a pretext for the officers' desire to look for signs of contraband" See also United States v. Villamonte-Marquez, 462 U.S. 579, 584 n. 3 (1983). Officers Snader and Molloy were acting within their lawful authority to stop and board the "Happy Lady" to conduct a documents check, even if it was merely a pretext to confirm the anonymous tip regarding narcotics.
Valid Consent
Once on board the "Happy Lady," Officer Snader obtained valid consent to search the entire vessel from Diaz, the person who appeared to have custody and control of the vessel. Diaz responded promptly and affirmatively both times Officer Snader asked if he could search. There is no evidence that this consent was coerced or otherwise involuntary: Defendants were not under arrest or restrained, and the officers did not have their weapons drawn. Diaz did not limit his consent to any particular area of the boat; indeed, the second time he authorized a search he said Officer Snader could search "anywhere." Suarez for his part never voiced any objection whatsoever to a search. Under the totality of the circumstances, Massell, 823 F.2d at 1507, the Court finds the consent obtained from Diaz was given freely and voluntarily.
Furthermore, Diaz never withdrew his consent to search. The "Happy Lady" was moved to the Coast Guard station for the safety of the vessel and individuals involved, as the boat was drifting toward shallow water. Diaz then docked the boat at the station without objection. The officers were entitled to move the boat to avoid a dangerous situation, and Diaz did not equivocally or even impliedly withdraw his consent. See e.g., United States v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991) ("unequivocal act or statement of withdrawal" is required to show a person withdraws his consent to search); United States v. Martel-Martines, 988 F.2d 855, 858 (8th Cir. 1993) (consent to search may be withdrawn, but passive conduct falls far short of "unequivocal act or statement of withdrawal" required); United States v. Ross, 263 F.3d 844, 846 (8th Cir. 2001) (expressions of impatience did not amount to "unequivocal act or statement of withdrawal" indicating an intent to revoke consent to search).
In addition, the officers had reasonable suspicion that the "Happy Lady" was carrying narcotics based on the following factors: an anonymous tip advising that the "Happy Lady," a large Sea Ray, would be coming into port in Miami Beach that day carrying narcotics; the extreme nervousness of both Defendants when officers boarded the vessel and asked routine questions; the existence of saltspray all over the boat, indicative of boating in heavy seas, even though the officers were advised the boat had been running along the coast where the seas were calm; and the imprint of a brick-shaped item which Officer Snader suspected could be the outline of a kilogram-sized package of contraband Given the hazardous situation as the boat drifted toward shallow water, the officers were justified in directing the "Happy Lady" to the Coast Guard station for continued searching in a more secure environment. See e.g., United States v. Merritt, 736 F.2d 223, 230 (5th Cir. 1984).
Because the Court concludes the stop and boarding of the boat were lawful, and the search was the product of valid consent, this Court finds no Fourth Amendment violation and therefore recommends that the motion to suppress be denied.
III. Conclusion
Based upon a review of the record as a whole, the undersigned Magistrate Judge hereby RECOMMENDS that
Defendants' Motion to Suppress (D.E. Nos. 31, 32, 38) be DENIED.
DONE AND ORDERED.