The opinion of the court was delivered by: PARKER
MEMORANDUM ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND TO DISMISS INDICTMENT
Defendant Luis Enrique Gonzalez is charged in a two-count indictment with violation of federal narcotics laws: Count One -- possession of cocaine with intent to distribute while on board a United States vessel, 46 U.S.C. App. § 1903(a); Count Two -- conspiracy to possess cocaine with intent to distribute while on board a United States vessel, 46 U.S.C. App. § 1903(j). The seizure of nearly 350 pounds of cocaine from Gonzalez and his arrest were made by United States Customs officials in international waters, off the coast of the Bahamian Islands. The incident occurred in an area noted for narcotics trafficking by air drops and for vessels carrying narcotics bound for the United States.
Section 1903(h) of the statute under which defendant was charged was "intended to reach acts of possession . . . or distribution committed outside the territorial jurisdiction of the United States." 46 U.S.C. App. § 1903(h). Customs officials are authorized under 19 U.S.C. § 1589a to make arrests for Title 46 § 1903 violations.
Gonzalez's counsel has moved to dismiss the indictment, contending that the Customs agents lacked authority to stop a vessel in international waters. He has also moved to suppress any statements obtained and narcotics seized on grounds that the warrantless search of the vessel was unsupported by probable cause, and that the statements given by the defendant were not voluntary.
This Memorandum Order will first address the circumstances surrounding and present factual findings and legal conclusions relating to the defendant's motion to suppress evidence. It will then address defendant's motion to dismiss the indictment.
MOTION TO SUPPRESS EVIDENCE
Two witnesses testified at the suppression hearing: Warren Parks, a Customs agent, and William Reed, a Drug Enforcement Administration ("DEA") Special Agent. After consideration of their testimony, which was credible, together with the legal memoranda of counsel, the Court finds that the Customs agent had proper authority to stop and search the vessel and to seize the narcotics found aboard. The Court also finds that Gonzalez's statements were not secured in violation of his constitutional rights. Accordingly, defendant's motion to suppress is denied.
The reasons in support of the Court's findings and conclusions are set forth infra, slip op. at pp. 3-10.
In the late afternoon of August 15, 1987, Warren Parks and two other Customs officers, Carlos Velez and Meryl Throop, were patrolling in international waters off the coast of the Bahamian Islands. With the aid of binoculars, Parks noticed a Florida styled lobster vessel, with a cabin and flying bridge attached plowing slowly through international waters. Because of his years of experience with boats and fishing off of the Florida coast, as well as off of the New Jersey and New York coast, Parks was particularly suspicious of several things: the vessel's structure, its course, and its very slow speed. Indeed, the presence of 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 ...