1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-9-1998

United States v. Varlack Ventures Inc

Precedential or Non-Precedential:

Docket 97-7489

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Recommended Citation

"United States v. Varlack Ventures Inc" (1998). 1998 Decisions. Paper 154.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/154
Filed 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 America 
 Alan 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 of 

the District Court for the District of the Virgin Islands 

suppressing evidence seized during a warrantless search of 

the M/V Venture Pride. We conclude that the search of the 

Venture Pride at issue in this appeal was authorized by 14 

U.S.C. S 89(a) (1994) since the Venture Pride was situated 

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 suspicion 

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 the district 

court and remand for further proceedings. 

I. 

On March 26, 1995, the U.S. Coast Guard Marine Safety 

Detachment Office in St. Thomas received a telephone 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 

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

sample of the sheen. 

Janssen subsequently spoke with a witness to the spill, 

who identified the Venture Pride as the offending vessel. 

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 returned 

to Red Hook harbor, Janssen located the specific opening 

on the vessel through which the oil had flowed because 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 board. 

He instructed the crew to arrange for the captain's return. 

Janssen received permission from a member of the crew to 

inspect the engine room, where he noted oil in the bilge. He 

also observed a hose leading from the bilge to an overboard 

fitting as well as an illegally-wired bilge pump. Janssen 

took a sample of the oil in the bilge and, after 

disembarking, of the oil from the overboard discharge 

fitting. 

Janssen then boarded the Venture Pride a second time 

and gave a federal letter of interest to the now-present 

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. John. 

Janssen thereupon revoked the Venture Pride's certificate 

of inspection. 

On March 27, 1995, Janssen spoke with Antonio 

Thomas, who supervised maintenance for Varlack 

Ventures. Thomas informed him that the Venture Pride 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 day. On 

March 28, 1995, Janssen and another Coast Guard officer 

boarded the Venture Pride without a warrant. They 

videotaped and photographed the interior and exterior of 

the ship. Janssen noticed that a large amount of oil had 

been removed from the bilge. 

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Fredericks and Varlack Ventures were indicted for 

knowingly discharging oil into U.S. waters in violation 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 oil into 

U.S. waters. Fredericks subsequently filed a motion to 

suppress his and the crew's statements to Janssen as well 

as evidence obtained during the two warrantless searches, 

March 26 and 28, 1995. Following an evidentiary hearing, 

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 court 

suppressed evidence obtained during the March 28 search. 

The government appeals from that portion of the district 

court order which suppresses evidence from the search on 

March 28. Varlack Ventures did not join the suppression 

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 the district 

court's legal determinations and applications of law to 

facts. We will review the district court's factualfindings for 

clear error. See Universal Minerals, Inc. v. C.A. Hughes & 

Co., 669 F.2d 98, 103 (3d Cir. 1981). 

III. 

Usually, our point of departure for a Fourth Amendment 

inquiry would be whether Fredericks has a reasonable 

expectation of privacy in the areas of his vessel searched 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 requisite level of 

suspicion required for searching vessels in U.S. territorial 

waters, and no warrant was needed for the search. 

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A. 

Determining whether a plaintiff has standing to challenge 

a search equates to determining whether the plaintiff has a 

reasonable expectation of privacy in the property searched. 

See Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430 

(1978).1 Since Varlack Ventures rather than Fredericks 

owns the Venture Pride, Fredericks cannot base a 

reasonable expectation of privacy on a proprietary interest 

in the boat. Instead, Fredericks's reasonable expectation of 

privacy can only arise from his position as captain of the 

vessel.2 

Third Circuit precedent is inconclusive regarding whether 

the captain of a ship can have a reasonable expectation of 

privacy in the public areas of his vessel such as the engine 

room,3 and an analysis of explicit positions taken by our 

sister courts of appeals on this issue fails to reveal any 

consistent doctrine. In United States v. Lopez, 761 F.2d 

632, 635 (11th Cir. 1985), the Eleventh Circuit noted that 

a captain does not have a reasonable expectation of privacy 

in the public areas of the vessel such as the engine room 

since the Coast Guard is authorized under section 89(a)4 to 

_________________________________________________________________ 

1. The Fourth Amendment also requires that the individual manifest a 

subjective expectation of privacy in the property searched. See California 

v. Greenwood, 486 U.S. 35, 39, 108 S. Ct. 1625, 1628 (1988). 

Fredericks's assumption of command as captain and his exercise of 

authority over the crew manifests this subjective expectation. 

2. On this appeal, we will assume that Fredericks could still assert the 

prerogatives and authority as captain of the Venture Pride even though 

he was not on board from the vessel during the search on March 28. 

3. In United States v. Demanett, 629 F.2d 862 (3d Cir. 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. at 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, examinations, inspections, 

 searches, seizures, and arrests upon the high seas and waters over 

 which the United States has jurisdiction, for the prevention, 

 detection, and suppression of violations of laws of the United 

States. 

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conduct administrative inspections of the public areas of 

vessels without a warrant and without any suspicion of 

wrongdoing. Lopez, 761 F.2d at 635; see United States v. 

Freeman, 660 F.2d 1030, 1034 (5th Cir. Unit B 1981).5 In 

contrast, the First Circuit in United States v. CardonaSandoval, 6 F.3d 15 (1st Cir. 1993), held that a captain 

does have a reasonable expectation of privacy in the public 

areas of the ship such as the engine room. As the First 

Circuit stated, "This interest derives from [the captain's] 

custodial responsibility for the ship, his associated legal 

power to exclude interlopers from unauthorized entry to 

particular places on board, and the doctrines of admiralty, 

which grant the captain (as well as the owner) a legal 

identity of interest with the vessel." Id. at 21. In contrast to 

this dispute, courts of appeals agree that captains and 

crew-members have a reasonable expectation of privacy in 

_________________________________________________________________ 

 For such purposes, commissioned, warrant, and petty officers may 

 at any time go on board of any vessel subject to the jurisdiction, 

or 

 to the operation of any law, of the United States, address 

inquiries 

 to those on board, examine the ship's documents and papers, and 

 examine, inspect, and search the vessel and use all necessary force 

 to compel compliance. When from such inquiries, examination, 

 inspection, or search it appears that a breach of the laws of the 

 United States rendering a person liable to arrest is being, or has 

 been committed, by any person, such person shall be arrested or, if 

 escaping to shore, shall be immediately pursued and arrested on 

 shore, or other lawful and appropriate action 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 into 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 secure such fine or 

penalty, 

 such vessel or such merchandise, or both, shall be seized. 

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

5. The Fourth Circuit has expressed in dicta its agreement with the 

conclusion articulated in Lopez. See United States v. Manbeck, 744 F.2d 

360, 384 n.37 (4th Cir. 1984) (stating its agreement 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). 
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the non-public areas of the ship such as personal lockers. 

See id. at 21-22; Lopez, 761 F.2d at 635; United States 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 reasonable 

expectation of privacy in the public areas of his vessel 

since, even if he did, the Coast Guard officers fulfilled the 

requirements for conducting a warrantless search of his 

vessel. 

B. 

Before examining the justification for the Coast Guard's 

search, we must first ascertain the Venture Pride's location 

since the standard might differ depending upon whether 

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 government 

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 conclusion that 

the Venture Pride was in drydock. The testimony before the 

district court was uncontested that, although the vessel 

may have been undergoing repairs, it was not in drydock 

but in the water. The district court's factual finding was 

clearly erroneous since "we are left with a definite and firm 

conviction that a mistake has been committed." United 

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 appeals in 

interpreting section 89(a) to allow searches of vessels for 

criminal activities based upon reasonable suspicion of 

criminal activity. See Wright-Barker, 784 F.2d at 176. Since 

the Venture Pride was in the water while undergoing repair, 

it is covered by section 89(a), which authorizes searches 

"upon the high seas and waters over which the United 

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

Coast Guard only needed reasonable suspicion of criminal 

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 have not 

previously defined reasonable suspicion for the purposes of 

section 89(a), but the Eleventh Circuit defines reasonable 

suspicion in the section 89(a) context as follows: 

 Although we examine the totality of the circumstances 

 to determine reasonable suspicion, reasonable 

 suspicion must be more than a mere generalized 

 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 States v. Reeh, 

 780 F.2d 1541, 1544 (11th Cir. 1986). Reasonable 

 suspicion must be based on specific articulable facts, 

 together with rational inferences drawn from those 

 facts, which reasonably warrant suspicion of criminal 

 activity. United States v. Brignoni-Ponce, 422 U.S. 873, 

 884, 95 S. Ct. 2574, 2581, 45 L. Ed.2d 607 (1975). 

 Law enforcement officers may subjectively assess those 

 facts in light of their expertise. 

Roy, 869 F.2d at 1430. On March 26, a witness identified 

the Venture Pride as the source of the oil spill. Later that 

day, Janssen conducted his first search of the Venture 

Pride and found oil in the bilge, a hose leading from the 

bilge to an overboard fitting, and a bilge pump wired 

illegally. Finally, Fredericks gave a statement about the spill 

and admitted that he had not reported the spill in Red 

Hook harbor nor a possible spill in Cruz Bay, St. John. 

Accordingly, the Coast Guard possessed reasonable 

suspicion that it would find further evidence of criminal 

activity, meaning that the search was justified under 

section 89(a). 

Concerning the applicability of the Fourth Amendment's 

warrant requirement, section 89(a) contains no provision 

requiring a warrant, nor have any courts of appeals

required a warrant for searches based upon a reasonable 

suspicion of criminal activity that are conducted pursuant 

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

Indeed, no warrant would be required even if the search 

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 warrantless 

search under the Fourth Amendment. See Carroll v. United 

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 "because 

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"); United 

States v. Lingenfelter, 997 F.2d 632, 640-41 (9th Cir. 1993) 

(a boat in drydock could be seized by virtue of the

automobile exception since the boat could be returned 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 warrant for 

searches of ships).6 

_________________________________________________________________ 

6. We note that, given that a boat's mobility creates exigent 

circumstances, the March 28 search would have been justified even if 

section 89(a) was inapplicable since the Coast Guard possessed probable 

cause to search the Venture Pride. Searches not authorized under 

section 89(a) fall under regular Fourth Amendment jurisprudence, in 

which probable cause is required. We have previously defined probable 

cause "in terms of facts and circumstances sufficient to warrant a 

prudent man in believing that the [suspect] had committed or was 

committing an offense." Sharrar v. Felsing, 128 F.3d 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 Coast 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 probable cause, combined 

with exigent circumstance arising from the boat's mobility, justified the 

March 28 warrantless search under regular Fourth Amendment 

jurisprudence. 

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IV. 

For the above reasons, we will reverse the August 19, 

1997, order of the district court suppressing evidence 

seized during the March 28, 1995, warrantless search of 

the Venture Pride. We will remand the case for further 

proceedings. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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