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. e du/thir dc ir c uit_1998/154Filed July 9, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-7489

UNITED STATES OF AMERICA Appellant

v.

VARLACK VENTURES, INC;

HUBERT FREDERICKS

On Appeal from the District Court of the Virgin Islands (D.C. No. 96-cr-00229)

Argued April 2, 1998

BEFORE: STAPLETON, COWEN and ALITO, Circuit Judges

(Filed July 9, 1998)

Howard P. Stewart, Esq. (Argued) Senior Litigation Counsel Stanley DeJongh, Esq.
Environmental Crimes Section
P.O. Box 23985 Washington, D.C. 20026-3985

Counsel for Appellant
United States of AmericaAlan D. Smith, Esq. (Argued)

Hodge & Francois 1340 Taarnederg Road Charlotte Amalie, St. Thomas USVI, 00802

Counsel for Appellee Varlack Ventures, Inc.

Charles B. Herndon, Esq. (Argued)
Suite 115
3303 Louisiana Houston, TX 77006

Counsel for Appellee
Hubert Fredericks

OPINION OF THE COURT

COWEN, Circuit Judge.

The government appeals the August 19, 1997, order o f the District Court for the District of the Virgin I slands suppressing evidence seized during a warrantless se arch of the M/V Venture Pride. We conclude that the search of the Venture Pride at issue in this appeal was authorize d by 14 U.S.C. S 89(a) (1994) since the Venture Pride was s ituated in U.S. territorial waters while undergoing repair. Section 89(a) permits warrantless searches of vessels in U. S. territorial waters based solely upon a reasonable s uspicion of criminal activity, and the government possessed the requisite reasonable suspicion that a search would produce
further evidence that Venture Pride had violated U. S.
environmental laws. We will reverse the order of th e district court and remand for further proceedings.

I.

On March 26, 1995, the U.S. Coast Guard Marine Safe ty Detachment Office in St. Thomas received a telephon e call reporting an oil spill in Red Hook harbor, to which the Coast Guard dispatched Lt. Keith Janssen. Janssen interviewed an employee of the marina, who pointed out a

2sheen where the oil spill had occurred, and Janssen took a

sample of the sheen.

Janssen subsequently spoke with a witness to the sp ill, who identified the Venture Pride as the offending v essel. The Venture Pride is owned by Varlack Ventures, Inc ., and operates as a commercial ferry under a Coast Guard certificate of inspection. When the Venture Pride r eturned to Red Hook harbor, Janssen located the specific op ening on the vessel through which the oil had flowed beca use a witness identified the location on a diagram of the vessel
that Janssen sketched.

Janssen then boarded the Venture Pride without a warrant and asked for the captain, who was not on b oard. He instructed the crew to arrange for the captain's return. Janssen received permission from a member of the cr ew to inspect the engine room, where he noted oil in the bilge. He also observed a hose leading from the bilge to an o verboard fitting as well as an illegally-wired bilge pump. J anssen took a sample of the oil in the bilge and, after disembarking, of the oil from the overboard dischar ge fitting.

Janssen then boarded the Venture Pride a second tim e and gave a federal letter of interest to the now-pr esent captain, Hubert Fredericks, who was then on board. Fredericks gave Janssen a statement about the spill and acknowledged that he had not reported the spill in Red Hook harbor nor a possible spill in Cruz Bay, St. J ohn. Janssen thereupon revoked the Venture Pride's certi ficate of inspection.

On March 27, 1995, Janssen spoke with Antonio Thomas, who supervised maintenance for Varlack
Ventures. Thomas informed him that the Venture Prid e was in the north branch of Cruz Bay. Janssen instructed Thomas not to repair the Venture Pride since Coast Guard officers planned to photograph her the following da y. On March 28, 1995, Janssen and another Coast Guard off icer boarded the Venture Pride without a warrant. They videotaped and photographed the interior and exteri or of the ship. Janssen noticed that a large amount of oi l had been removed from the bilge.

3Fredericks and Varlack Ventures were indicted for

knowingly discharging oil into U.S. waters in viola tion of 33 U.S.C. SS 1319(c)(2)(A), 1321(b)(3) (1994), failing to report an oil spill in violation of 33 U.S.C. S 1321(b)(5) (1994), and aiding and abetting such activities in violation of 18 U.S.C. S 2 (1994). Varlack Ventures also was indicted for violating 33 U.S.C. S 1319(c)(1) by negligently discharging o il into U.S. waters. Fredericks subsequently filed a motion to suppress his and the crew's statements to Janssen a s well as evidence obtained during the two warrantless sea rches, March 26 and 28, 1995. Following an evidentiary hea ring,
the district court ruled that Fredericks's and the crew's statements, as well as the evidence obtained during the search on March 26, were admissible. The district c ourt suppressed evidence obtained during the March 28 se arch. The government appeals from that portion of the dis trict court order which suppresses evidence from the sear ch on March 28. Varlack Ventures did not join the suppres sion motion in the district court and does not take any position in this appeal.

II.

Our jurisdiction over this appeal arises under 18 U .S.C. S 3731 (1994). We will exercise plenary review of t he district court's legal determinations and applications of la w to
facts. We will review the district court's factualf indings for clear error. See Universal Minerals, Inc. v. C.A. H ughes & Co., 669 F.2d 98, 103 (3d Cir. 1981).

III.

Usually, our point of departure for a Fourth Amendm ent inquiry would be whether Fredericks has a reasonabl e expectation of privacy in the areas of his vessel s earched by the Coast Guard; however, we have no need to decide this issue in the instant case. Even assuming Fredericks has standing, the Coast Guard officers had the requisit e level of suspicion required for searching vessels in U.S. te rritorial waters, and no warrant was needed for the search.

4A.

Determining whether a plaintiff has standing to cha llenge a search equates to determining whether the plainti ff has a reasonable expectation of privacy in the property s earched. See Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430 (1978).1 Since Varlack Ventures rather than Frederi cks owns the Venture Pride, Fredericks cannot base a reasonable expectation of privacy on a proprietary interest in the boat. Instead, Fredericks's reasonable expec tation of privacy can only arise from his position as captain of the
vessel.2

Third Circuit precedent is inconclusive regarding w hether the captain of a ship can have a reasonable expecta tion of privacy in the public areas of his vessel such as t he engine room,3 and an analysis of explicit positions taken by our sister courts of appeals on this issue fails to rev eal any consistent doctrine. In United States v. Lopez, 761 F.2d 632, 635 (11th Cir. 1985), the Eleventh Circuit not ed that a captain does not have a reasonable expectation of privacy in the public areas of the vessel such as the engin e room since the Coast Guard is authorized under section 8 9(a)4 to

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1. The Fourth Amendment also requires that the indi vidual manifest a subjective expectation of privacy in the property s earched. See California v. Greenwood, 486 U.S. 35, 39, 108 S. Ct. 1625, 162 8 (1988). Fredericks's assumption of command as captain and h is exercise of authority over the crew manifests this subjective e xpectation.

2. On this appeal, we will assume that Fredericks c ould still assert the prerogatives and authority as captain of the Ventur e Pride even though he was not on board from the vessel during the sear ch on March 28.

3. In United States v. Demanett, 629 F.2d 862 (3d C ir. 1980), we noted that "the government [made] no contention that any of the defendants arrested on board the vessel lack standing to claim that the search and seizure violated the fourth amendment [sic]." Id. a t 866. In United States v. Wright-Barker, 784 F.2d 161 (3d Cir. 1986), the captain consented to
the search of the vessel. See id. at 176.

4. Section 89(a) reads as follows:

(a) The Coast Guard may make inquiries, exam inations, inspections, searches, seizures, and arrests upon the hig h seas and waters over which the United States has jurisdiction, fo r the prevention, detection, and suppression of violations of laws of the United

States.

5conduct administrative inspections of the public ar eas of

vessels without a warrant and without any suspicion of wrongdoing. Lopez, 761 F.2d at 635; see United Stat es v. Freeman, 660 F.2d 1030, 1034 (5th Cir. Unit B 1981) .5 In contrast, the First Circuit in United States v. Car donaSandoval, 6 F.3d 15 (1st Cir. 1993), held that a ca ptain does have a reasonable expectation of privacy in th e public areas of the ship such as the engine room. As the F irst Circuit stated, "This interest derives from [the ca ptain's] custodial responsibility for the ship, his associat ed legal power to exclude interlopers from unauthorized entr y to particular places on board, and the doctrines of ad miralty, which grant the captain (as well as the owner) a le gal identity of interest with the vessel." Id. at 21. I n contrast to this dispute, courts of appeals agree that captains and crew-members have a reasonable expectation of priva cy in

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For such purposes, commissioned, warrant, an d petty officers may at any time go on board of any vessel subjec t to the jurisdiction,

or to the operation of any law, of the United S tates, address inquiries to those on board, examine the ship's docume nts and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. When from such inquiri es, examination, inspection, or search it appears that a brea ch of the laws of the United States rendering a person liable to a rrest is being, or has been committed, by any person, such person s hall be arrested or, if escaping to shore, shall be immediately purs ued and arrested on shore, or other lawful and appropriate actio n shall be taken; or,
if it shall appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought in to the United States by, such vessel, liable to forfeiture, or so as to render such vessel
liable to a fine or penalty and if necessary to sec ure such fine or penalty, such vessel or such merchandise, or both, sh all be seized.

14 U.S.C. S 89(a).

5. The Fourth Circuit has expressed in dicta its ag reement with the conclusion articulated in Lopez. See United States v. Manbeck, 744 F.2d 360, 384 n.37 (4th Cir. 1984) (stating its agreemen t with Freeman (which reiterated the Lopez doctrine) but noting that the issue of the captain's reasonable expectation of privacy was not raised at the appellate level and, given the existence of probable cause, was not considered necessary for the decision reached).6the non-public areas of the ship such as personal l ockers.

See id. at 21-22; Lopez, 761 F.2d at 635; United St ates v. DeWeese, 632 F.2d 1267, 1270-71 (5th Cir. 1980).

However, as our analysis infra explicates, we have no need to decide whether Fredericks enjoyed a reasona ble expectation of privacy in the public areas of his v essel since, even if he did, the Coast Guard officers ful filled the requirements for conducting a warrantless search of his

vessel.

B.

Before examining the justification for the Coast Gu ard's search, we must first ascertain the Venture Pride's location since the standard might differ depending upon whet her the ship was on land or in the water. The district court found that the Venture Pride was in drydock at the time of the March 28 search. However, the government claims that the ship was actually in the water, and the governm ent cites Janssen's testimony that the ship "was in the north branch of Cruz bay, also referred to as the Creek." App. at 77. Fredericks does not point to any countervailing testimony that supports the district court's conclu sion that the Venture Pride was in drydock. The testimony bef ore the district court was uncontested that, although the v essel may have been undergoing repairs, it was not in dry dock
but in the water. The district court's factual find ing was clearly erroneous since "we are left with a definit e and firm
conviction that a mistake has been committed." Unit ed States v. Roy, 869 F.2d 1427, 1429 (11th Cir. 1989) . We find that the Venture Pride was not in drydock but rather in the water during the search on March 28.

C.

We have previously joined our sister courts of appe als in interpreting section 89(a) to allow searches of ves sels for criminal activities based upon reasonable suspicion of criminal activity. See Wright-Barker, 784 F.2d at 1 76. Since the Venture Pride was in the water while undergoing repair, it is covered by section 89(a), which authorizes se arches "upon the high seas and waters over which the Unite d

7States has jurisdiction[.]" 14 U.S.C. S 89(a). Ther efore, the

Coast Guard only needed reasonable suspicion of cri minal activity in order to search the Venture Pride. See WrightBarker, 784 F.2d at 176.

The Coast Guard undoubtedly possessed reasonable suspicion of criminal activity in this case. We hav e not previously defined reasonable suspicion for the pur poses of section 89(a), but the Eleventh Circuit defines rea sonable suspicion in the section 89(a) context as follows:

Although we examine the totality of the circ umstances to determine reasonable suspicion, reasonabl e suspicion must be more than a mere generaliz ed suspicion or hunch. United States v. Pearson , 791 F.2d 867, 870 (11th Cir.), cert. denied, 479 U.S. 991, 107 S. Ct. 590, 93 L. Ed.2d 591 (1986); United Stat es v. Reeh, 780 F.2d 1541, 1544 (11th Cir. 1986). Reason able suspicion must be based on specific articula ble facts, together with rational inferences drawn from those facts, which reasonably warrant suspicion of criminal activity. United States v. Brignoni-Ponce, 4 22 U.S. 873, 884, 95 S. Ct. 2574, 2581, 45 L. Ed.2d 607 ( 1975). Law enforcement officers may subjectively as sess those facts in light of their expertise.

Roy, 869 F.2d at 1430. On March 26, a witness ident ified the Venture Pride as the source of the oil spill. L ater that day, Janssen conducted his first search of the Vent ure Pride and found oil in the bilge, a hose leading fr om the bilge to an overboard fitting, and a bilge pump wir ed illegally. Finally, Fredericks gave a statement abo ut the spill and admitted that he had not reported the spill in Red Hook harbor nor a possible spill in Cruz Bay, St. J ohn. Accordingly, the Coast Guard possessed reasonable suspicion that it would find further evidence of cr iminal activity, meaning that the search was justified und er section 89(a).

Concerning the applicability of the Fourth Amendmen t's warrant requirement, section 89(a) contains no prov ision requiring a warrant, nor have any courts of appeals required a warrant for searches based upon a reason able suspicion of criminal activity that are conducted p ursuant

8to section 89(a). See, e.g., Williams, 617 F.2d at 1074.

Indeed, no warrant would be required even if the se arch had taken place outside the context of section 89(a ). The mobility of the Venture Pride gave it access to the open seas even though undergoing repair. This possibility of flight created an exigent circumstance to justify a warran tless
search under the Fourth Amendment. See Carroll v. U nited States, 267 U.S. 132, 153, 45 S. Ct. 280, 285 (1925 ) ("practically since the beginning of the government ," no warrant has been required for searches of ships "be cause the [ship] can be quickly moved out of the locality or jurisdiction in which the warrant must be sought"); United States v. Bain, 736 F.2d 1480, 1488 (11th Cir. 1984 ) ("mobility of the [docked] vessel was an exigent circumstance justifying an immediate search"); Unit ed States v. Lingenfelter, 997 F.2d 632, 640-41 (9th C ir. 1993) (a boat in drydock could be seized by virtue of the automobile exception since the boat could be return ed to the water and then flee); United States v. Weinrich , 586 F.2d 481, 492-93 (5th Cir. 1978) (the "automobile exception" is justification for not requiring a war rant for searches of ships).6

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6. We note that, given that a boat's mobility creat es exigent circumstances, the March 28 search would have been justified even if section 89(a) was inapplicable since the Coast Guar d possessed probable
cause to search the Venture Pride. Searches not aut horized under section 89(a) fall under regular Fourth Amendment j urisprudence, in which probable cause is required. We have previousl y defined probable
cause "in terms of facts and circumstances sufficie nt to warrant a prudent man in believing that the [suspect] had com mitted or was committing an offense." Sharrar v. Felsing, 128 F.3 d 810, 817-18 (3d Cir. 1997) (citing Gerstein v. Pugh, 420 U.S. 103, 111, 95 S. Ct. 854, 862 (1975)) (internal quotation marks omitted). The Coa st Guard possessed probable cause given the witness who identified the Venture Pride as the source of the spill and given what Janssen observed during his first search of the Venture Pride. The existence of proba ble cause, combined with exigent circumstance arising from the boat's m obility, justified the March 28 warrantless search under regular Fourth Am endment jurisprudence.

9IV.

For the above reasons, we will reverse the August 1 9, 1997, order of the district court suppressing evide nce seized during the March 28, 1995, warrantless searc h of
the Venture Pride. We will remand the case for furt her proceedings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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