Defendants concede that the Coast Guard may stop a foreign vessel on the high seas without a warrant based upon a reasonable suspicion that the vessel's occupants are in violation of U.S. law. They argue that the stop was improper because the United States may not exercise jurisdiction over them, and any activities of importing hashish into Canada did not violate any U.S. law. The court has already concluded that it has jurisdiction over all of the defendants except Avila. Defendants do not contend that the Coast Guard lacked the reasonable suspicion or probable cause necessary to justify a stop. Therefore, the stop was not unlawful.
The Coast Guard intercepted Malekula at 4:00 a.m. Defendants argue that this violated the Fourth Amendment.
Rules 41(c) and (h) of the Federal Rules of Criminal Procedure require that a search warrant be executed between the hours of 6:00 a.m. and 10:00 p.m., unless the warrant authorizes nighttime execution "for reasonable cause shown." The Ninth Circuit has interpreted this rule to "require both specific authorization for a nighttime search, and that sufficient facts in the affidavit must support the magistrate's authorization." United States v. Stefanson, 648 F.2d 1231, 1236 (9th Cir. 1981).
Defendants acknowledge that the Coast Guard did not need a search warrant to stop and search Malekula; it needed only reasonable suspicion or probable cause, which defendants concede was present. Since no search warrant was required, Rules 41(c) and (h) do not apply. The only question is whether the nighttime interception was "unreasonable" in violation of the Fourth Amendment.
The government argues that there was no nighttime search or attempted boarding because the Coast Guard commander did not intend to board Malekula without the consent of her captain or a country of registry. However, a person has been "seized" within the meaning of the Fourth Amendment when "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." U.S. v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497 , 100 S. Ct. 1870 (1980). The U.S. Customs agent exhorted defendant Juda to have his crew assemble on the transom, and to "come on out" because "it is all over." This was a "seizure" of Malekula and her crew, whatever the commander's subjective intent about boarding. See, United States v. Williams, 617 F.2d 1063, 1071 n.1 (5th Cir. 1980) (en banc) ("Even the mere stopping of a vessel, without a boarding, is a fourth amendment 'seizure' since the governmental action restrain's the vessel's freedom to proceed").
Defendants rely on United States v. Piner, 608 F.2d 358 (9th Cir. 1979), in which the court suppressed evidence seized from a boat stopped at night for a random safety and document check. The court concluded that:
The random stop and boarding of a vessel after dark for safety and registration inspection without cause to suspect noncompliance is not justified by the governmental need to enforce compliance with safety regulations and constitutes a violation of the Fourth Amendment. A stop and boarding after dark must be for cause, requiring at least a reasonable suspicion of noncompliance . . . .
Id. at 361.
However, the facts in this case are different. The Coast Guard possessed reasonable suspicion that Malekula was carrying drugs in violation of U.S. law, satisfying the strictures of Piner. Title 14 U.S.C. § 89(a) authorizes the Coast Guard to board vessels on the high seas "at any time" to enforce U.S. laws. The Coast Guard Commander testified at the hearing that in his experience the potential for violence during maritime drug seizures is less at night, when crew members of the smuggling vessel are likely to be asleep or unprepared. The interception at 4:00 a.m. was reasonable under these circumstances.
For the reasons stated, IT IS ORDERED that:
(1) The indictment against defendant Manuel Avila is dismissed;
(2) The other motions of defendants are denied; and
(3) A trial setting and status conference will be held on July 10, 1992, at 1:30 p.m. If this date poses any difficulties under the Speedy Trial Act, the United States Attorney may advise the court and the date will be advanced.
Dated: June 11, 1992.
CHARLES A. LEGGE
UNITED STATES DISTRICT JUDGE
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