the cabin and flying bridge caused him to doubt that it was being used for commercial fishing purposes. As he proceeded closer, he determined that the vessel's name was "Michel" and that its home port was Miami, Florida. Both identifications were painted on the stern of the boat.
The government's vessel had appropriate identification, including a flashing blue strobe light and a United States Customs flag. As it approached and was maneuvered alongside the Michel, Parks immediately identified himself and his crew as Customs officials. All wore official uniforms of the agency.
As the two boats idled side by side, Parks asked Gonzalez the origin, destination, and nature of his trip. Gonzalez readily supplied those details, indicating that the purpose of the trip was for fishing and gambling. However, he did not know the owner, could not remember the name of the person from whom he borrowed the vessel, nor whether the vessel's registration papers were on board. The absence of this highly relevant and important information also raised questions in Parks' mind.
When Parks asked permission to board, Gonzalez responded "that is no problem, come on aboard." Indeed, he assisted Parks and a second customs official in boarding the vessel.
Tr. Feb. 12, 1988 at 47. Once on board, Parks asked the defendant when he left Florida, when he cleared Bahamian Customs, and what kind of fishing he had been doing. Gonzalez's responses in large part were vague and uncertain. Parks also noted that the fishing tackle aboard had not been used and that it was inappropriate for fishing in that area. When Parks asked permission to look through the vessel, Gonzalez readily agreed. Tr. Feb. 12, 1988, at 50.
When Parks asked how he could gain access to the engine compartment area, Gonzalez responded by showing and assisting in removing the engine hatch cover. After gaining access to the engine compartment area, Parks immediately noticed there was no light coming through the fiberglass hull as would be normal under usual circumstances. After further search and effort, without seeing any light, Parks discovered that there was a significant difference in space between the outer hull and the engine compartment hatch on top of the deck and the area underneath the deck. Suspecting a hidden compartment, Parks then secured a portable drill from his Custom vessel's equipment so as to probe further. As he used the drill, he observed small pieces of white crystalline powder. Suspecting that the substance was cocaine, he informed his fellow officer Throop of his discovery, and immediately placed Gonzalez and the other occupant of the vessel, Luis Enrique Manzo, under arrest.
Immediately after this discovery, Gonzalez volunteered and blurted out, "Look, you are only doing your job . . . I was doing mine . . . I was just trying to make a little money." Id. at 57. Officer Throop then read the defendant his rights from a Miranda warning card. The two occupants of the vessel were handcuffed and the party proceeded to shore. During that portion of the trip Gonzalez, without encouragement, stated that he appreciated that the Customs officers were not "hard-nosed guys" and reiterated that "this was his first time and he was trying to make some money." Id. at 59. In response to a particular inquiry Gonzalez responded that he had a cargo of 300 to 600 pounds of cocaine aboard the Michel.
After reaching the Bahamas, Gonzalez and Manzo were transported to the United States Customs House in Miami, Florida, where Gonzalez was questioned by DEA Special Agent William Reed. As the agent began to explain the Miranda rights form, Gonzalez said ". . . I know you are doing your job, and I am doing mine." Tr. Feb. 18, 1988, at 11. At that point, Reed read the defendant his rights and Gonzalez wrote his initials after every statement of the rights. When Reed reached the end of the Miranda rights, he began reading a paragraph regarding waiver of those rights. Gonzalez told Reed that he refused to sign anything, leading Reed to ask Gonzalez whether he understood his rights, and if he was willing to talk to the DEA agent without an attorney. Gonzalez answered "yes" to each question. Reed crossed out the standardized waiver paragraph, wrote out "I understand my rights," and told Gonzalez he did not have to sign it if he did not wish to and he could stop at any point. Id. Gonzalez signed his name after the statement, "I understand my rights." G. Ex. #1.
Under questioning, Gonzalez told Reed that he was to be paid between 20 and 25 thousand dollars for the cocaine shipment he had on board. Reed told Gonzalez that he was in a great deal of trouble and that information would be explained to the United States Attorney. He also asked defendant if he would be interested in trying to "take the case further," in other words, give the DEA the identity of the true owner of the cocaine Gonzalez was transporting. Id. at 15. At that point, Gonzalez asked for an attorney, and Reed immediately concluded the interview.
1. The Stop of the Michel was Justified
The controlling federal statute relied upon by the government to support the stop of the Michel is found in the enforcement provisions of the Customs duties entitled "Boarding vessels." The section entitled "Customs officers" provides:
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 or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act, or at any other authorized place without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof 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.
19 U.S.C. § 1581(a). Under the explicit language of that section, Customs officers need not have even a modicum of suspicion to either stop or search vessels. United States v. One 1972 44' Striker, Bonanza, 753 F.2d 867 (11th Cir. 1985) (Customs officers, lacking suspicion, may board any vessel located in waters that offer ready access to open sea in order to perform document or safety checks); United States v. Albano, 722 F.2d 690 (11th Cir. 1984) (Customs officials, acting pursuant to 19 U.S.C. § 1581 and without any suspicion of wrongdoing, may board for inspection of a vessel's documents). It is clear that 19 U.S.C. § 1581 plainly authorizes the stop of the Michel. The detention of the vessel under the authority granted was permissible unless violative of minimum federal constitutional standards.
The fourth amendment imposes a general reasonableness standard upon all searches and seizures. United States v. Caraballo, 571 F.2d 975 (5th Cir. 1978); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Under this amendment, exercise of the authority to check for safety, documentation, and obvious Customs and narcotics violations is reasonable even in the absence of any suspicion of criminal activity, let alone probable cause.
Moreover, there is a substantial distinction between a landlocked vehicle and a nautical vessel for fourth amendment purposes. The national frontiers of the ocean are more difficult to police than the territorial boundaries of the land. Brief and routine Customs detention prompted by the legitimate concerns of government for the safe and lawful operation of vessels does not intrude upon the privacy of seafarers. See generally, United States v. Stanley, 545 F.2d 661, 667 (9th Cir. 1976), cert. denied 436 U.S. 917, 56 L. Ed. 2d 757, 98 S. Ct. 2261 (1978); United States v. Hill, 430 F.2d 129, 131 (5th Cir. 1970).
2. The Search of the Michel was Constitutional
Even before boarding the Michel, Customs Officer Parks had reasonable suspicion because Gonzalez was unable to identify the boat's owner or even the person who allowed him its use. Such a situation "by itself would provide reasonable suspicion of illegal activity." United States v. Gollwitzer, 697 F.2d 1357, 1362 (11th Cir. 1983). Once aboard, Parks also noticed other things which triggered his suspicion such as the inappropriateness of the fishing gear for defendant's declared purposes.
Also after boarding and before proceeding further, Parks asked for and received permission to look around. A search under those conditions, conducted pursuant to a valid consent is constitutionally permissible. Vale v. Louisiana, 399 U.S. 30, 35, 26 L. Ed. 2d 409, 90 S. Ct. 1969 (1970); Katz v. United States, 389 U.S. 347, 358 n. 22, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967) (both citing Zap v. United States, 328 U.S. 624, 90 L. Ed. 1477, 66 S. Ct. 1277 (1946)). Law enforcement agents may conduct a valid warrantless search if they have voluntary and intelligent consent to do so. However, "when a prosecutor seeks to rely upon [such] consent . . ., he has the burden of proving that the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968). The testimony was well within the ruling in Bumper.
As with confessions, the requirement of "voluntary" consent reflects a fair accommodation of the constitutional requirements involved. The Court must examine all surrounding circumstances to determine whether the defendant was in a possibly vulnerable subjective state or in any way coerced. Schneckloth v. Bustamonte, 412 U.S. 218, 229, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Here, there is no evidence of any inherently coercive tactics. And even if the defendant could have reasonably believed himself to be in custody or under arrest, his consent was voluntary and valid.
A defendant under arrest or in custody may voluntarily consent to a search, and a finding of its voluntariness will not be disturbed unless it appears that the consent was physically or mentally coerced by actions of the arresting officers which went beyond the normal duress inherent in any arrest.