UNITED STATES v. CONROY
589 F.2d 1258 (5th Cir. 1979)
If the Coast Guard cutter DAUNTLESS is not otherwise recorded in history, her forays to protect coasts of the United States from illicit imports will be commemorated in decisions of the Fifth Circuit. The defendants, convicted of either conspiracy or both conspiracy and attempting to import marijuana, charge that the zeal of her commanding officer exceeded his statutory authority and led him to violate their constitutional rights by boarding their American vessel in Haitian waters. Having recently attempted to chart the rules concerning coast guard authority with respect to domestic vessels in coastal waters as well as on the high seas, we now explore the same questions in the uncharted foreign domain.
I.
Once upon a time there was an informer, most of these tales begin. In this instance he was Flemming Larson Budal, a Danish citizen who was residing in the United States, had been an informer for several months, had worked on a number of other cases, and had been paid $ 200 a week by the Drug Enforcement Administration.
In December, 1975, Budal began a series of conversations with two of the defendants, Schubert and Conroy, in New England, and together they formulated a plan to smuggle a boatload of marijuana from Jamaica. During this time Budal was in constant communication with a special agent of the DEA.
Schubert obtained a 53-foot Gulfstar sailboat in Ft. Lauderdale. Soon afterwards Budal flew to Ft. Lauderdale where he was met by Dahl and Schubert, and another indictee who was separately tried. They were later joined by a fourth defendant, Jacobs, and together lived on the vessel, the NAHOA, until September 3, 1976, when they weighed anchor for Jamaica. Conroy remained in New England, allegedly to await the return of the other defendants with their cargo.
The DEA agent had furnished Budal two electronic detection devices of the kind known as beepers, one of which was to be turned on when the vessel was loaded. This device emits a signal by means of which its location can be determined by other electronic equipment. Rather than keep either on his person, Budal concealed one in the engine room and the other in an air vent on the NAHOA.
When the NAHOA was about 40 miles from Jamaica, the crew met the fifth defendant, Walker, who came out from the island on a small motorboat. Walker made four trips to the NAHOA ferrying marijuana.
The DAUNTLESS, under the command of Lieutenant Robert Council, was on border patrol in the Windward Passage between Haiti and Cuba, on guard for the NAHOA. When a DEA plane flying over nearby waters received an electronic signal from one of Budal’s beepers, the DAUNTLESS attempted to establish a barrier patrol in the Windward Passage.
A day later the commanding officer of the DAUNTLESS recognized a radar beep on his scope as a vessel located about nine miles southwest of Haiti. He set his course for the vessel, and soon sighted her; it was, as anticipated, the NAHOA. He attempted to communicate with the vessel by radio, flag, and flashing lights, all signaling her to heave to. Nevertheless, those aboard the vessel set course straight for Haiti, and entered that nation’s territorial waters.
Oral approval, later confirmed in writing, to enter Haitian waters and search the NAHOA was obtained from the Haitian Chief-of-Staff, and the DAUNTLESS continued in pursuit. When on further signals, the NAHOA did not halt, the flag Sierra Quebec III was raised: this signifies “stop or we’ll shoot.” The NAHOA then hove to, and Lieutenant Council pulled alongside her in a small boat. He smelled marijuana, and asked permission to board. Schubert denied his request, but Lieutenant Council went on the vessel and requested the ship’s papers. Schubert prevented him from entering the ship’s cabin; the lieutenant ordered a search, and found 7000 pounds of marijuana.
Defendants Conroy, Schubert, Dahl and Jacobs contend that in this dramatic encounter the Coast Guard were little better, legally, than pirates. The installation of the beeper was an illegal search; the boarding of the vessel in Haitian waters exceeded the statutory authority of the Coast Guard and violated their constitutional rights because it was unreasonable and warrantless. In addition, defendant Walker, who was separately tried, alleges that there was insufficient evidence to convict him of conspiracy, and that procedural errors denied him a fair trial.
II. INSTALLATION OF THE BEEPER
A panel of this court has held that the installation of a beeper on an automobile is a search within the meaning of the Fourth Amendment because it defeats the expectation of privacy of the automobile’s occupant; it is, therefore, prohibited unless a warrant is obtained or there is sufficient basis for the failure to obtain a warrant to render the act reasonable. United States v. Holmes, 5 Cir. 1975, 521 F.2d 859. En banc, the court again affirmed the district court on the issue, but only by an evenly divided vote, 5 Cir. 1976, 537 F.2d 227. For present purposes, we assume that the Holmes panel establishes the law of the circuit. Compare United States v. Abel, 5 Cir. 1977, 548 F.2d 591, Cert. denied, 431 U.S. 956, 97 S. Ct. 2678, 53 L. Ed. 2d 273; United States v. Emery, 1 Cir. 1977, 541 F.2d 887; United States v. Hufford, 9 Cir. 1976, 539 F.2d 32, Cert. denied, 429 U.S. 1002, 97 S. Ct. 533, 50 L. Ed. 2d 614; United States v. Frazier, 8 Cir. 1976, 538 F.2d 1322, Cert. denied, 1977, 429 U.S. 1046, 97 S. Ct. 751, 50 L. Ed. 2d 759.
Nonetheless we note that here, unlike Holmes, there was no trespass when the beeper was installed for Budal had the right to be on board the vessel; moreover, there was probable cause to believe that the NAHOA would be used to transport contraband. However, validity of the installation of the electronic device does not rest only on these distinctions; the transmission of the signals was not, under the circumstances, an invasion of the privacy of others, for Budal was under no legal obligation to conceal his whereabouts. Thus the case is controlled by the decision in United States v. White, 1971, 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453, in which a plurality of the court held that there is no privacy invasion when a confidential informant wears a recording device and surreptitiously transmits his own conversations with unknowing lawbreakers. That decision was based on the premise that a participant in a conversation has no legal right to protect his erroneous belief that those in whom he confides will safeguard the secrets he divulges. See also Lopez v. United States, 1963, 373 U.S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462. If the informant may reveal the conversation at a later time, he may contemporaneously transmit it to third persons. Accordingly, in Abel, supra, we upheld, on the basis of the owner’s consent, the warrantless installation of an electronic device on an airplane.
Here, Budal was not the vessel owner, but he had a right to go aboard, and his placement of the devices on the vessel rather than on his person does not render its introduction invalid. See also United States v. Cheshire, 5 Cir. 1978, 569 F.2d 887, Cert. denied, 437 U.S. 907, 98 S. Ct. 3097, 57 L. Ed. 2d 1138 (consent by owner to installation on a plane he had rented to the defendant).
Appellants suggest that the beepers may have been installed without prior written authorization as required by the Internal Regulations of the DEA. Although the issue was fleetingly discussed during the trial court’s hearing on the motion to suppress, there is no evidence in the record of noncompliance with the regulations. The regulations upon which the claim is based are not cited; in the absence of evidence establishing the existence of such a requirement and its breach, we do not reach the issue whether noncompliance, if shown, would require suppression of evidence obtained as a result of the improper installation. See United States v. Caceres, 9 Cir. 1976, 545 F.2d 1182, 1187, Cert. granted, 1978, 436 U.S. 943, 98 S. Ct. 2843, 56 L. Ed. 2d 784; United States v. Leahey, 1 Cir. 1970, 434 F.2d 7, 11.
III. THE SEIZURE IN FOREIGN WATERS
The Fourth Amendment not only protects all within our bounds; it also shelters our citizens wherever they may be in the world from unreasonable searches by our own government. Reid v. Covert, 1957, 354 U.S. 1, 5-6, 77 S. Ct. 1222, 1225, 1 L. Ed. 2d 1148, 1157. See Note, The Applicability of the Exclusionary Rule in Federal Court to Evidence Seized and Confessions Obtained in Foreign Countries, 16 Colum. J. Transnat’l L. 495 (1977). The mere consent of foreign authorities to a seizure that would be unconstitutional in the United States does not dissipate its illegality even though the search would be valid under local law. Indeed the United States does not here contend that those aboard the NAHOA were beyond the shield of the Fourth Amendment. The issue is whether the search was invalid because it was made without a warrant and by a federal agency, the Coast Guard, that lacked express statutory authority to conduct it.
A. Statutory Authority
In United States v. Warren, 5 Cir. en banc 1978, 578 F.2d 1058, we held that the Coast Guard has authority under 14 U.S.C. § 89(a) to board American vessels on the high seas beyond the twelve-mile limit not only to inspect for safety and documentation but also to “look for obvious customs and narcotics violations.” 578 F.2d at 1065. In United States v. Cadena, 5 Cir. 1978, 585 F.2d 1252, we gave the same statutory provision, Section 89(a), a reading broad enough to cover the stop on the high seas of foreign vessels subject to extra-territorial application of domestic law. That statute in terms, however, would not reach the territorial waters of another nation for it relates only to “the high seas and waters over which the United States has jurisdiction.”
Conceding that the statute per se would not authorize the Haitian search, the government urges that the phrase, “upon the high seas and waters over which the United States has jurisdiction,” was not intended to be restrictive, and that the Coast Guard has implicit power to search an American vessel in foreign waters even in the absence of express statutory authority. We agree.
The legislative history of the present form of the statute leads to the conclusion that the high-seas phrase was not intended to be restrictive. Before it was amended to incorporate that phrase, the statutory authority of the Coast Guard was examined in Maul v. United States, 1927, 274 U.S. 501, 47 S. Ct. 735, 71 L. Ed. 1171. The majority opinion searched specific statutes to find express statutory authorization for the Coast Guard to seize domestic vessels on the high seas in enforcing the revenue laws. Mr. Justice Brandeis, with whom Mr. Justice Holmes joined, concurring, would not have rested on an interpretation of specific statutory authority because of his apprehension that “the construction adopted by the court may have in other cases far-reaching and regrettable results.” 274 U.S. as 512, 47 S. Ct. at 739, 71 L. Ed. at 1176. He added that, notwithstanding what he perceived as lack of express statutory language, “authority (to seize American vessels beyond the territorial waters) exists because it is to be implied as an incident of the police duties of ocean patrol which Congress has imposed upon the Coast Guard.” Id.
Thereafter, Congress amended Section 89(a) to incorporate the high-seas phrase in the hope of avoiding the problem foreseen by Mr. Justice Brandeis. The act was designed to overturn the Maul majority’s strict interpretation of the laws governing the conduct of the Coast Guard, and the House Committee report quoted Mr. Justice Brandeis at length. H.R. Rep. No. 2452, 74th Cong., 2d Sess. 3-4 (1936). It cited with approval his view that “the Coast Guard is authorized to arrest American vessels subject to forfeiture under our law, no matter what the place of seizure and no matter what the law violated.” Id. at 3. In supporting the new legislation governing the Coast Guard, the Committee observed, “In the future it is possible that, based upon some expressions in the majority opinion (in Maul ), the contention will be made that express authority of law is necessary to secure enforcement by the Coast Guard of some laws and also to give jurisdiction to enforce those laws beyond the 12-mile limit.” Id. at 2-3. The proposed legislation was intended “to prevent those possible “far-reaching and regrettable results.’ ” Id. at 3.
The language adopted by Congress in enacting what is now Section 89(a) was adequate to deal with the precise situation presented in Maul, a search of an American vessel on the high seas. However, while affirmatively empowering the Coast Guard to engage in law enforcement activities on the high seas and in American territorial waters, the resultant statute was silent as to the role of the Coast Guard elsewhere. The reason for the omission is apparent: the authority of the Coast Guard to proceed in foreign territorial waters simply was not a matter entertained by Congress while deliberating upon the statute.
Here, once again, as Chief Judge Brown has observed, we are asked “to determine what Congress would have thought about a subject about which it never thought . . . and one about which we have never thought nor any other Court has thought.” Wirth Ltd. v. S/S Acadia Forest, 5 Cir. 1976, 537 F.2d 1272, 1276. Congress’s silence on a subject about which no one had suggested a need to speak should not be interpreted as reflecting an intent either to grant or to deprive the Coast Guard of authority to proceed in foreign territorial waters to enforce American law.
Because neither mandate nor prohibition of search can be divined from Section 89(a), the Coast Guard’s authority, if it exists, must be, as Mr. Justice Brandeis said, an incident of its other powers. The powers that Congress gives agencies in the executive branch are better when as is usually the case they are explicit. The statute that is express and unequivocal is least likely to be misunderstood or violated either by neglect or zealous overuse. Yet authority may be granted by inference as well; in its relationship with the executive branch, Congress is not bound by the strictures that apply to the criminal law, and require such statutes to be explicit. The pattern of legislation from 1790 to 1927 traced by Mr. Justice Brandeis and the subsequent congressional action we have here discussed, make it clear that, in the absence of objection by the sovereign power involved, Congress intended the Coast Guard to have authority to stop and search American vessels on foreign waters as well as on the high seas and in territorial waters even though it never said so with unequivocal didacticism.
B. International Law
Our statutory interpretation of Coast Guard authority, premised on the concurring opinion of Mr. Justice Brandeis in Maul, is implicitly supported by principles of international law that justify law enforcement activities by the Coast Guard in foreign waters. International law is part of our domestic law. The Paquete Habana, 1900, 175 U.S. 677, 700, 20 S. Ct. 290, 299, 44 L. Ed. 320, 328. The possible application of the law of nations to supplement the statute is consistent with the statement in the House of Representatives report, “The powers conferred by this act are not to be construed to affect any other powers conferred by existing law.” H.R.Rep. No. 2452, at 4.
The law of nations classifies Coast Guard vessels as warships. Such vessels belong to the State, are under the direction of a military commander and manned by a military crew, and legally bear the ensign of the national navy. See II C. Hyde, International Law 395 (1922): Convention on the High Seas, 450 U.N.T.S. 82, 13 U.S.T. 2312, T.I.A.S. No. 5200, art. 8.
Early interpretations of the law of nations denied the right of innocent passage to warships; it was thought that armed vessels did not “enjoy an absolute legal right to pass through a state’s territorial waters any more than an army may cross the land territory,” P. Jessup, The Law of Territorial Waters and Maritime Jurisdiction 120 (1927), and prior permission had to be obtained. Until 1959, a regulation issued by the United States Office of the Chief of Naval Operations provided, “Naval vessels should not be navigated in or near such claimed territorial waters without having obtained prior authorization from higher authority.” 4 Whiteman, Digest of International Law 417 (1965).
The United-Nations-sponsored Convention on the Territorial Sea and the Contiguous Zone entered into force in 1964; the United States Senate had previously ratified the Convention in 1960, and the President had signed it in 1961. 15 U.S.T. 1606, T.I.A.S. No. 5639 (1958). Haiti is also a party to the Convention. Thus the Convention represents existing U. S. policy, at least with respect to other party nations.
After much debate, the draftsmen of the multilateral treaty rejected any requirement of previous authorization by a coastal state for the entry of a foreign warship into its territorial waters. See 4 Whiteman, Supra, at 415-16. Article 14(1) of the Convention on the Territorial Sea and the Contiguous Zone states simply, “Subject to the provisions of these articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.” 15 U.S.T. at 1610. Article 16(1) provides that the coastal state may take “the necessary steps in its territorial sea to prevent passage which is not innocent.” No distinction is made between warships and other vessels.
At least between parties to the Convention, such as the United States and Haiti, a warship of one nation may enter the territorial waters of the other without first giving notification and receiving authorization. Ratification of the convention by the United States manifests implicit authorization for its warships to do what the warships of other nations might do. The DAUNTLESS was not, of course, on a hostile mission. Indeed, it bears emphasis again that, despite the fact that presumably no consent by Haitian authority was required under the terms of the treaty, permission was in fact obtained. Therefore, in the ensuing search, there was a conjunction of implicit recognition by the United States Government of the power of its warship to make the search, and explicit approval of the search by the Haitian government.
Even had we been provided no guidance by the implicit authorization granted warships under the treaty, we would still be compelled to conclude that the defendants cannot assail the legality of the seizure of their vessel in Haitian waters. Since 1815 it has been established that redress for improper seizure in foreign waters is not due to the owner or crew of the vessel involved, but to the foreign government whose territoriality has been infringed by the action. In The Richmond, 1815, 13 U.S. (9 Cranch) 102, 3 L. Ed. 670, the Court rejected a challenge similar to the one we face here to the seizure of an American registered vessel in the territorial waters of Spain. Chief Justice Marshall explained, “The seizure of an American vessel, within the territorial jurisdiction of a foreign power, is certainly an offense against that power, which must be adjusted between the two governments. This court can take no cognisance of it.” 13 U.S. at 103, 3 L. Ed. at 671. Here, where not even the foreign government complains of the American assertion of sovereignty over its own vessel, defendants have no basis for complaint unless the seizure was improper on some other grounds.
C. Absence of a Warrant
We have dealt with other issues before reaching the constitutional question. Having concluded that the search was not invalidated by lack of authority to make it, we must consider whether the Coast Guard was required by the Fourth Amendment to obtain a warrant before proceeding. It is almost too obvious to require reiteration that the mere existence of statutory authority to make a search does not obviate the need for Fourth Amendment compliance. This constitutional issue was involved both in Warren, supra, and in Cadena, supra. In each of these cases there was a warrantless search by the Coast Guard. The Warren majority, whom we have already quoted, recognized in Section 89(a) a grant of plenary authority to stop and board United States vessels on the high seas for either a safety-and-document inspection or to check for obvious customs and narcotics violations. Once aboard, if probable cause arises to suspect the presence of narcotics, a search can then be made of the vessel. Judge Fay dissented from the suggestion he found in the opinion that the statute gives plenary authority to search; nevertheless he began:
Neither opinion speaks directly to the question whether probable cause alone justifies the warrantless search of an entire vessel as compared to boarding for purposes of a safety-and-document inspection and a check for obvious customs and narcotics violations.
In Cadena a foreign vessel was intercepted on the high seas pursuant to Section 89(a) authority. The vessel’s subsequent flight created probable cause to search without regard to any prior knowledge of the Coast Guard of the vessel’s activities.
We find Cadena persuasive precedent. Here, as in Warren and Cadena, the Coast Guard had plenary authority to stop and board the ship. The DAUNTLESS was indeed lying in wait for the NAHOA. There was previously existing probable cause to believe the vessel was engaged in smuggling; we may assume arguendo that a warrant would have been necessary had the NAHOA docilely continued on its course, approached the DAUNTLESS and, upon being hailed, submitted to a search. However, the NAHOA’s flight of itself created exigent circumstances that, coupled with the antecedent probable cause, justified the subsequent warrantless search of the vessel.
…
For these reasons, the convictions of Conroy, Schubert, Dahl, and Jacobs are AFFIRMED. …
