2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-4-2008

USA v. Whitted

Precedential or Non-Precedential: Precedential

Docket No. 06-3271

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-3271

 

UNITED STATES OF AMERICA

v.

JAMES WHITTED,

 Appellant

 

Appeal from the District Court

of the Virgin Islands

(USVI Criminal No.04-cr-00176)

District Judge: Honorable Raymond L. Finch

 

Argued May 5, 2008

Before: RENDELL, FUENTES and CHAGARES, 

Circuit Judges.

(Filed: September 4, 2008)

 
2

David J. Cattie, Esq. (ARGUED)

Ogletree, Deakins, Nash, Smoak & Stewart

1336 Beltjen Road, Suite 201

Charlotte Amalie, St Thomas

USVI, 00802

 Counsel for Appellant

 James Whitted

Kim L. Chisholm, Esq. (ARGUED)

Office of United States Attorney

U.S. Courthouse

5500 Veterans Building, Suite 260

Charlotte Amalie, St. Thomas

USVI, 00802-6924

 Counsel for Appellant

 United States of America

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

James Edward Whitted appeals his conviction by jury for

possession with intent to distribute a controlled substance in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and
3

importation of a controlled substance into the United States in

violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(A). He claims

that the District Court’s failure to suppress evidence found by

customs officers during a border search of his cruise ship cabin

was error and merits reversal of his conviction. 

In order to resolve this appeal, we must answer a

question of first impression: whether the Fourth Amendment

requires any level of suspicion to justify a border search of a

passenger cabin aboard a cruise liner arriving in the United

States from a foreign port. For the reasons that follow, we

believe that it does and that reasonable suspicion is the

appropriate standard. In the present case, we conclude the

reasonable suspicion standard is satisfied and, accordingly, will

affirm Whitted’s conviction. 

I. Facts and Procedural History

On the morning of September 25, 2004, the Adventure of

the Seas cruise ship, which can carry up to 3,838 passengers and

1,185 crew, arrived from the foreign port of St. Maarten and

docked in St. Thomas, United States Virgin Islands. Prior to the

ship’s arrival, United States Customs and Border Protection

officers gathered to prepare to board the ship and conduct

enforcement actions. Canine Enforcement Officer Ralph Dasant

was on duty that morning, and, after retrieving his drug-sniffing

dog from its kennel, he used the Treasury Enforcement

Communications System (“TECS”), a computerized database,
4

to access the list of vessels arriving from a foreign port. He then

used the database to access the manifest of crew and passengers

aboard the Adventure of the Seas. Based on TECS information

generated through this search, he selected approximately ten of

the ship’s staterooms (out of a total of 1,557) to be looked at

upon boarding the ship. 

As is relevant here, TECS showed a “one-day lookout”

for James Edward Whitted. App. 45. Dasant explained that a

“lookout” was “a message that comes down in reference to

either a crew member or a passenger on board a vessel, where

we may have to take a look at that individual, being that it could

be for drugs, it could be for a warrant or something of that

nature.” App. 45-46. Based on the one-day lookout, Dasant

conducted further inquiries in TECS and discovered that

Whitted’s ticket had been purchased at the last minute. The

system also indicated that Whitted had traveled to other drug

source countries in the Caribbean and South America, including

Colombia, Venezuela, and St. Maarten, and had a criminal

record. Based on this information from the TECS database,

Whitted’s cabin was chosen for inspection.

A team of customs officers, including Dasant and the

drug-sniffing dog, boarded the ship and proceeded directly to

the chief of security of the ship. Together, they went to the deck

of the ship where Whitted’s cabin was located. After the

officers knocked on the door to the cabin and ascertained that

Whitted was not there, the chief of security unlocked the door
 These preparations consisted of ensuring that no sharp 1

objects, food, or anything else that might harm or distract the

dog were in the cabin, moving bags from under the bed into the

center of the room, and pressing the surface of the bags to expel

any air inside. No bags were opened at this time.

5

and the officers began to prepare the room for canine screening.1

The dog did not alert in the hallway or at the door to the cabin.

However, immediately after the cabin was prepped, the dog

bolted into the room without being given a command and alerted

to a bag. Dasant called him off and indicated the bag to the

other officers. Customs officers Gail Fraser and Norman

Ramirez then entered the room and searched through the bag,

where they found “ladies’ shoes, men’s sandals, perfume bottles

and a shaving cream container.” App. 91. After ascertaining

from the chief of security that no woman was assigned to the

room and noting that the shaving cream container seemed

strange, they set aside those items found in the bag for further

examination. The chief of security offered them the use of the

ship’s x-ray machine. While x-raying the items, officers Fraser

and Gloria Lambert noticed what appeared to be “pebbles”

inside.

In the interim, Whitted returned to the cabin. Officer

Ramirez took an oral declaration from Whitted, asking if he

stayed in that cabin, whether the bags in the cabin belonged to

him, and if any other passenger shared the cabin; Whitted

acknowledged that it was his cabin and bag and that he was
6

traveling alone. After Fraser and Lambert returned from the

x-ray machine, the officers entered the cabin with Whitted.

Special Agent Louis Penn, Jr. subsequently arrived, and he and

the customs officers probed the “pebbles” and discovered a

white, powdery substance, which field-tested positive for heroin.

Whitted was arrested and later charged with possession with

intent to distribute a controlled substance and importation of a

controlled substance into the United States.

Before trial, Whitted moved to suppress the drugs seized

from his cruise ship cabin. Dasant, Lambert, and Penn testified

at the suppression hearing before the District Court. In addition

to the facts recounted above, Penn testified that, following

Whitted’s arrest, he had confirmed that Whitted had two prior

convictions in North Carolina for heroin possession and sale.

He also stated that he had verified the reason for the TECS

lookout with San Juan officials and they had placed the lookout

on TECS based on an outbound survey of Whitted in San Juan

and his last-minute purchase of the ticket for cruise ship travel.

At the hearing, the parties made substantially the same

arguments they do now. Whitted argued that he had a high

expectation of privacy in the ship cabin, as his dwelling, such

that the customs officers were required to have reasonable

suspicion in order to search it. Here, he claimed, the facts

available were insufficient to create reasonable suspicion that he

was involved in criminal activity. The government contended

that the search was a “routine” border search, focusing on the
7

fact that it was performed regularly by customs officers rather

than on its intrusiveness or the privacy interest at stake. In the

alternative, it urged, the TECS information established

reasonable suspicion.

 On October 17, 2005, assuming, without deciding, that

reasonable suspicion was required for the search of Whitted’s

cabin, the District Court found the facts as a whole provided

reasonable suspicion and, therefore, denied Whitted’s motion to

suppress. The case then proceeded to trial and conviction on

both counts. Whitted now appeals his conviction on the grounds

that the District Court improperly denied his motion to suppress.

We have jurisdiction over Whitted’s appeal pursuant to

28 U.S.C. § 1291. We review the denial of a motion to suppress

for clear error as to the factual findings and exercise plenary

review over the application of law to those facts. United States

v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).

II. Discussion

The Fourth Amendment protects “[t]he right of the

people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” U.S. Const.

amend. IV. Whether a search is reasonable will depend upon its

nature and all of the circumstances surrounding it, United States

v. Montoya de Hernandez, 473 U.S. 531, 537 (1985), but, as a
8

general matter, warrantless searches are unreasonable. See Cady

v. Dombrowski, 413 U.S. 433, 439 (1973). 

Searches conducted at the nation’s borders, however,

represent a well-established and long-standing exception to the

warrant requirement. United States v. Ramsey, 431 U.S. 606,

619 (1977); see also United States v. Flores-Montano, 541 U.S.

149, 152-53 (2004). The exception applies not only at the

physical boundaries of the United States, but also at the “the

functional equivalent” of a border, Almeida-Sanchez v. United

States, 413 U.S. 266, 272-73 (1973), including the first port

where a ship docks after arriving from a foreign country, United

States v. Smith, 273 F.3d 629, 633 n.8 (5th Cir. 2001). The

search here, conducted as the Adventure of the Seas arrived in

St. Thomas from St. Maarten, was therefore a border search. 

Provided that a border search is routine, it may be

conducted, not just without a warrant, but without probable

cause, reasonable suspicion, or any suspicion of wrongdoing.

Montoya de Hernandez, 473 U.S. at 538; see also United States

v. Glasser, 750 F.2d 1197, 1201 (3d Cir. 1985). This is because

the expectation of privacy is “less at the border than in the

interior” and “the Fourth Amendment balance between the

interests of the Government and the privacy right of the

individual is . . . struck much more favorably to the

Government.” United States v. Hyde, 37 F.3d 116, 119-20

(3d Cir. 1994). Even at the border, however, an individual is
9

entitled to be free from unreasonable search and seizure and his

or her privacy interests must be balanced against the sovereign’s

interests. Id. Consequently, certain searches, classified as

“nonroutine,” require reasonable suspicion of wrongdoing to

pass constitutional muster. Montoya de Hernandez, 473 U.S. at

541. Border searches thus fall into two categories: “routine

searches that require no suspicion and nonroutine searches that

require reasonable suspicion.” United States v. Bradley, 299

F.3d 197, 204 n.4 (3d Cir. 2002). 

The question here, therefore, is not whether the customs

officers were required to have a warrant or probable cause in

order to search Whitted’s private cabin, but, rather, whether

reasonable suspicion was necessary. The parties agree that no

suspicion is required in order for a customs officer to board and

search the cruise ship as part of a routine border search. They

disagree, however, as to whether any Fourth Amendment

protection applies to a search of a private sleeping cabin aboard

a cruise ship. 

To answer this question, we must first decide whether the

border search at issue was routine or non-routine and, so doing,

set forth the correct standard required under the Fourth

Amendment. We will then turn to a determination of whether

this search was conducted in accordance with it.
 See Bradley, 299 F.3d at 203 (patdowns); United States v. 2

Gonzalez-Rincon, 36 F.3d 859, 864 (9th Cir. 1994) (luggage

searches and patdowns); Flores-Montano, 541 U.S. at 155

(vehicle).

10

A. Reasonable Suspicion and the Search of a Passenger

Cabin of a Cruise Ship

To ascertain whether a border search can be classified as

routine, we must examine the degree to which it intrudes on a

traveler’s privacy. Bradley, 299 F.3d at 204. As the Supreme

Court has held, “highly intrusive searches of the person” that

implicate the “dignity and privacy interests of the person being

searched” require reasonable suspicion. Flores-Montano, 541

U.S. at 152. Courts have focused on the privacy interest and the

intrusiveness and indignity of the search to distinguish between

routine and nonroutine searches. See United State v. Cardenas,

9 F.3d 1139, 1148 n.3 (5th Cir. 1993) (observing that “lower

courts have generally classified routine searches as those which

do not seriously invade a traveler’s privacy”); United State v.

Vega-Barvo, 729 F.2d 1341, 1344-46 (11th Cir. 1984)

(evaluating intrusiveness and indignity of the search).

Accordingly, patdowns, frisks, luggage searches, and

automobile searches, involving neither a high expectation of

privacy nor a seriously invasive search, are routine, whereas 2

body cavity searches, strip searches, and x-ray examinations are

considered nonroutine by virtue of their significant intrusion on
 See Montoya de Hernandez, 473 U.S. at 541 (alimentary 3

canal search); Vega-Barvo, 729 F.2d at 1349 x-rays); United

States v. Adekunle, 980 F.2d 985, 987-88 (5th Cir. 1992) (strip

search).

11

an individual’s privacy. 

3

In the present case, Whitted argues that the search of a

cruise ship cabin is not a routine border search because the

Fourth Amendment’s primary purpose is the protection of

privacy in one’s home and the search of one’s home, by its

nature, is highly intrusive. He makes a compelling argument

that an individual’s expectation of privacy in a cabin of a ship is

no different from any other temporary place of abode. Because

the search of his living quarters aboard the cruise ship intruded

upon that most private of places–his home–he says it should be

considered non-routine. In response to Whitted’s arguments, the

government contends that the search of the cabin was a routine

border search and “submits that the border search of . . .

Whitted’s cabin should be analyzed in the same way as that of

a vehicle, as opposed to a person.” Appellee’s Br. 10 (citing

United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976)). 

Neither this Court nor the Supreme Court has addressed

the issue of whether the search of a cabin of a cruise ship

sufficiently intrudes upon an individual’s privacy to render it

non-routine, so that reasonable suspicion of criminal activity is

required. Indeed, there is a surprising dearth of authority on the
 Here, by contrast, the dog did not alert until after the cabin 4

was opened and prepared for inspection. The dog’s alerting in

Whitted’s case, therefore, cannot establish reasonable suspicion

for the search. The routine search in Brown, done without

reasonable suspicion, was of the ship’s hallways–public space;

the search of Brown’s cabin was done only after there was

reasonable suspicion (or even probable cause) to search.

12

matter.

The only authority which the government cites for the

proposition that the search of a passenger’s cruise ship cabin

amounts to a routine border search is readily distinguishable

from the present case. See United States v. Brown, 298 F. Supp.

2d 1317 (S.D. Fla. 2004). In Brown, the “routine” aspect of the

search was the use of “trained canines to detect narcotic odor

from the hallways of newly-arrived cruise ships in Key West.”

298 F. Supp. 2d at 1320. The search of Brown’s cabin occurred

only after the drug-sniffing dog had alerted to the presence of

drugs in the cabin while still in the hallway. While the court 4

stated that the search was not distinguishable from a routine

border search, clearly it was referring to the use of the dogs to

“search” the ship’s hallways, not the search of the cabin once

there was reasonable suspicion. Id. at 1320 & n.2.

Existing caselaw counsels in favor of the approach urged

by Whitted. In the case most clearly on point, the United States

Court of Appeals for the Ninth Circuit concluded that “the
 759 F.2d at 737 (citing United States v. Williams, 617 F.2d 5

1063 (5th Cir. 1980) (en banc), and United States v. Piner, 608

F.2d 358, 361-64 (9th Cir. 1979) (Kennedy, J., dissenting)).

13

search of private living quarters on a ship should require

something more than naked suspicion.” United States v.

Alfonso, 759 F.2d 728, 738 (9th Cir. 1985). There, the customs

officers had searched a cabin on a ship which had arrived from

Colombia. The defendant argued that “even if the search [were]

deemed a proper border search, the search of his private living

quarters on the ship was unreasonable under the Fourth

Amendment.” Id. at 733. Although the court found no cases

that were directly on point, it reasoned that “[o]bviously, a 5

search of the private living quarters of a ship is more intrusive

than a search of other areas. . . . The private living quarters are

at least analogous to a private dwelling.” Id. at 737-38. It then

went on to conclude that the information known to the officers

provided reasonable suspicion to justify the search. Id. at 738.

Other courts have reached similar conclusions. See State

v. Logo, 798 So.2d 1182 (La. App. 4 Cir. 2001) (holding that

customs officers need reasonable suspicion to conduct a border

search of the cabin of a passenger on a cruise ship). At least one

United States district court has also required reasonable

suspicion. United States v. Cunningham, No. 98-265, 1996 WL

665747 (E.D. La. Nov. 15, 1996). In that case, as here, a

customs agent searched a passenger’s cabin without consent, a
 Although the authority to inspect at sea is more limited than 6

that of customs officers at the border, the reasoning in the cases

is helpful to an analysis of an individual’s expectation of privacy

in sleeping quarters aboard a ship. See United States v. Irving,

452 F.3d 110, 123 (2d Cir. 2006) (noting that searches of vessels

by customs officials are most analogous to border searches). 

 United States v. Eagon, 707 F.2d 362, 366 (9th Cir. 1982) 7

(Boochever, J., concurring) (reasoning that when evaluating a

Coast Guard investigatory stop, “[w]e should . . . look to the

scope of the boarding activity under the particular circumstances

involved. Those living on their boats have a greater expectation

of privacy at night. . . . The boarding in this case, however,

involved no invasion of sleeping quarters.”); United States v.

Streifel, 665 F.2d 414, 423 (2d Cir. 1981) (stating that, in the

context of the scope of searches of a ship, “one has a more has

14

warrant, or probable cause. A drug dog alerted to the presence

of drugs in the cabin and items in the room were subsequently

found to contain drugs. The court stated that “with respect to

searches of private areas of the vessel’s holds conducted for the

purpose of discovering contraband, the Fourth Amendment

requires reasonable suspicion, rather than probable cause as the

appropriate standard by which to judge the search’s lawfulness.”

Id. at *3 (citing Williams, 617 F.2d at 1087-88). 

Those courts to consider searches at sea have also 6

uniformly recognized a greater expectation of privacy in private

dwelling areas of a ship than that in public areas. These cases 7
a more legitimate expectation of privacy in one’s living quarters

than in other areas”); Williams, 617 F.2d at 1092-93 (Roney, J.,

concurring) (observing that constitutional protection against

unreasonable search and seizure “extends only to the areas in

which he has a legitimate expectation of privacy, including his

person, his cabin and his personal effects”); Piner, 608 F.2d at

364 (Kennedy, J., dissenting) (saying “search of certain portions

of a vessel, such as the crew’s quarters on an ocean-going tanker

or a locked compartment on the bridge, may constitute

substantial invasions of privacy”); see also Warrantless

Searches and Seizures, 37 GEO. L.J. ANN.REV.CRIM. PROC. 39,

115 (2008) (“Because there is a reasonable expectation of

privacy in nonpublic areas of the vessel to which common

access is limited, warrantless searches that extend beyond the

scope of document and safety inspections require either

reasonable suspicion of criminal activity or probable cause,

depending on the intrusiveness of the search.”).

 United States v. Cardona-Sandoval, 6 F.3d 15, 21-23 (1st 8

Cir. 1993) (noting that, on a cruise vessel, “an individual’s

private space can meaningfully be distinguished from areas that

are public or common” and courts “should distinguish among

areas, treating some as not susceptible to a reasonable

expectation of privacy by a crew member”); United States v.

Lopez, 761 F.2d 632, 635-36 (11th Cir. 1985) (gathering cases

and noting ship crew’s expectation of privacy in living and

15

routinely differentiate between those areas of a ship in which

little or no privacy can be expected and an individual’s living

and sleeping quarters. We similarly have suggested that a 8
sleeping quarters); see also Comment, The Preservation of

Privacy Interests at Sea: The Need for Meaningful Scope Limits

on Custom Official and the Coast Guard’s Sweeping Authority

to Search Vessels, 29 TUL. MAR. L.J. 105, 113-117 (2004)

(observing that courts distinguish between public and private

areas of a ship in evaluating the expectation of privacy and the

permissibility of a search).

16

sleeper compartment in a train might give rise to a higher

expectation of privacy than can be expected in more public or

common areas of the train. United States v. Kim, 27 F.3d 947,

953 (3d Cir. 1994).

We believe that these courts correctly recognize that the

search of private living quarters aboard a ship at the functional

equivalent of a border is a nonroutine border search and must be

supported by reasonable suspicion of criminal conduct. The

cruise ship cabin is both living quarters and located at the

national border. As a result, one principle underlying the

caselaw on border searches–namely, that “a port of entry is not

a traveler’s home,” United States v. Thirty-Seven Photographs,

402 U.S. 363 (1971)–runs headlong into the “overriding respect

for the sanctity of the home that has been embedded in our

traditions since the origins of the Republic,” foremost in our

nation’s Fourth Amendment jurisprudence, Payton v. New York,

445 U.S. 573, 601 (1980) (quoting United States v. Watson, 423

U.S. 411, 429 (1976) (Powell, J., concurring)). We find that

requiring reasonable suspicion strikes the proper balance
17

between the interests of the government and the privacy rights

of the individual. It also best comports with the case law, which

treats border searches permissively but gives special protection

to an individual’s dwelling place, however temporary. We,

therefore, join those courts that require reasonable suspicion to

search of a passenger cabin aboard a ship. 

As an initial matter, we have little trouble concluding that

a passenger cabin is more like an individual’s home than an

automobile. Whereas the “dignity and privacy interests of the

person” do not carry over to border searches of an automobile,

Flores-Montano, 541 U.S. at 152, the privacy interests of an

individual in his or her living quarters are significantly greater

and compel more rigorous Fourth Amendment protection. The

sanctity of private dwellings, whether temporary or permanent,

ordinarily gives rise to “the most stringent Fourth Amendment

protection.” United States v. Martinez-Fuerte, 428 U.S. 543, 561

(1976); see also Minnesota v. Carter, 525 U.S. 83, 89 (1998)

(acknowledging that “in some circumstances a person may have

a legitimate expectation of privacy in the house of someone

else”); Minnesota v. Olson, 495 U.S. 91, 98-99 (1990) (holding

that overnight guests in the house of someone else have a

reasonable expectation of privacy); Stoner v. California, 376

U.S. 483, 490 (1964) (hotel room); McDonald v. United States,

335 U.S. 451 (1946) (living quarters in rooming house). We

believe that “one’s expectation of privacy in an automobile and

of freedom in its operation are significantly different from the

traditional expectation of privacy and freedom in one’s
18

residence,” Martinez-Fuerte, 428 U.S. at 561, even where one’s

residence is aboard a ship. 

Individuals have a reasonable and high expectation of

privacy in their living and sleeping quarters aboard ships, even

at national borders, which merits Fourth Amendment protection.

As a passenger of a cruise liner, Whitted had a reasonable

expectation of privacy in his cabin: he excluded others from it,

used it as his home, and slept and conducted his daily life

therein. This expectation was eminently reasonable from an

objective standpoint. As the Supreme Court has recognized,

[w]e are at our most vulnerable when we are

asleep because we cannot monitor our own safety

or the security of our belongings. It is for this

reason that, although we may spend all day in

public places, when we cannot sleep in our own

home we seek out another private place to sleep,

whether it be a hotel room, or the home of a

friend.

Olson, 495 U.S. at 98-99. Just as individuals seek privacy in

hotel rooms or another’s home to sleep, cruise ship passengers

seek out privacy in their sleeping cabins and expect that they

will not be opened or intruded upon without consent.

Mindful of the “centuries-old principle of respect for the

privacy of the home,” we, therefore, consider a search of a
 Customs officers can also search the bags and persons of 9

cruise ship passengers as they pass through customs inspection

at the border.

19

individual’s living quarters among the most intrusive of

searches–invading as it does a place where the individual

expects not to be disturbed. Wilson v. Layne, 526 U.S. 603, 610

(1999); see also Georgia v. Randolph, 547 U.S. 103, 115

(2006); United States v. United States Dist. Court for Eastern

Dist. of Mich., 407 U.S. 297, 313 (1972) (“[P]hysical entry of

the home is the chief evil against which the wording of the

Fourth Amendment is directed.”). Here, the search was highly

intrusive on the defendant’s privacy. Uninvited and in

Whitted’s absence, the officers entered his de facto home,

searched through his belongings, and subjected his private space

to inspection by a drug-sniffing dog. 

Because of the high expectation of privacy and level of

intrusiveness, the search cannot be considered “routine” and

must therefore be supported by reasonable suspicion of illegal

activity. Reasonable suspicion is not a high standard that will

prevent customs officers from detecting drug smugglers at our

borders. Rather, it sets a relatively low threshold that will

continue to permit the kind of cabin searches customs officers

currently conduct.9

B. Reasonable Suspicion Existed to Search the Defendant’s

Cabin
 We note that the use of cash to purchase the ticket was 10

asserted in the government’s brief regarding suppression and

seems to have been assumed by both counsel and the Court

during the suppression hearing. The appendix submitted to us,

20

Under the reasonable suspicion standard, customs

officers are required to have a “particularized and objective

basis” to suspect illegal activity in order to conduct a search.

United States v. Arvizu, 534 U.S. 266, 273 (2002). The officers

must be able to articulate reasons that led to the search of the

cabin that are indicative of behavior in which most innocent

people do not engage. See Karnes v. Skrutski, 62 F.3d 485, 493

(3d Cir. 1995). We consider the totality of the circumstances in

determining whether reasonable suspicion existed at the time of

the search. Arvizu, 534 U.S. at 274. Accordingly, although each

individual factor alone may be consistent with innocent

behavior, it is sufficient if together they “serve to eliminate a

substantial portion of innocent travelers. Karnes, 62 F.3d at

493.

In this case, numerous facts raised the suspicion that

Whitted was involved in drug smuggling. The vast majority of

these came from information in the TECS database. First,

Whitted took a cruise that traveled to drug source countries.

Second, Whitted had previously traveled to several known

narcotics source countries. Third, Whitted purchased his ticket

just prior to the ship’s date of departure and may have paid for

it in cash. As other courts have recognized, most cruise 10
however, does not contain further evidence of the method of

purchase.

21

passengers purchase tickets well in advance and with a credit

instrument. See United States v. Smith, 273 F.3d 629, 634 (5th

Cir. 2001). Fourth, Whitted had a record of felony drug

convictions. Last, TECS indicated that authorities in San Juan,

Puerto Rico had found Whitted’s behavior suspicious and

entered a lookout for him into the TECS database. This was

significant because it could have indicated a warrant for his

arrest or other criminal wrongdoing. It was also the impetus for

querying the TECS database further and discovering other

factors that raised a suspicion of drug smuggling.

The defendant argues that this information cannot

establish reasonable suspicion because its source was the TECS

computer database, unsubstantiated by other information. We

reject this contention. As a general matter, customs officers

should be able to rely on data provided by computer reports to

create reasonable suspicion for a search. If they cannot, their

hands would be tied until they either independently investigated

the individual or contacted each source for the report to confirm

its validity. Just as a customs officer is entitled to rely on

unconfirmed information relayed to him by his supervisor in

order to look out for and search an individual at the border,

United States v. Love, 413 F. Supp. 1122 (S.D. Tex. 1976), so

too is a customs officer permitted to rely on TECS information

entered by other customs officials to create reasonable suspicion
 Whitted claims that this information should not have been 11

relied on as it was hearsay. Federal Rule of Evidence 104(a),

however, does not preclude the consideration of hearsay

evidence in a suppression hearing, and Whitted has not

presented any evidence that the TECS report in this case was

unreliable. By contrast to the cases cited by Whitted, this is not

a situation where the report shows only very old information of

dubious reliability. See Velasquez v. United States, No. CIV 00-

0036TUCGEE, 2002 WL 32818333 (D. Ariz. Sept. 26, 2002).

Nor does Whitted seriously challenge most of the information

contained in the report.

 Had a “drug smuggling profile” been in evidence, it would 12

not change our analysis. As the Supreme Court has stated, “[a]

court sitting to determine the existence of reasonable suspicion

must require the agent to articulate the factors leading to that

22

for a search.11

Whitted also argues that the customs officers engaged in

profiling, based on a “drug smuggling profile,” and cannot be

said to have had reasonable suspicion. This last argument is

entirely without merit. Whitted was selected for search not

because of his resemblance to a smuggling profile, but because

a one-day lookout specific to him had been entered into TECS.

There was never any drug smuggling profile in evidence or

relied on by the Court or the customs officers; the level of

suspicion was based on the specific relevant facts known to the

customs officers who searched Whitted’s cabin. As the 12
conclusion, but the fact that these factors may be set forth in a

‘profile’ does not somehow detract from their evidentiary

significance as seen by a trained agent.” United States v.

Sokolow, 490 U.S. 1, 10 (1989); see also Vega-Barvo, 729 F.2d

at 1349 (noting that, although suspects often are initially

approached because they fit a profile, “[i]t is not the profile . .

. but the factors which make up the profile which are crucial to

whether or not there is a reasonable suspicion”). 

23

Supreme Court has instructed, “‘the relevant inquiry is not

whether particular conduct is ‘innocent’ or ‘guilty,’ but the

degree of suspicion that attaches to particular types of

noncriminal acts.’” Sokolow, 490 U.S. at 10 (quoting Illinois v.

Gates, 462 U.S. 213, 243-244, n.13 (1989)). 

Viewed in their entirety, the facts here support the

conclusion that the customs officers reasonably suspected

Whitted of criminal activity. In the present case, customs officer

Dasant found the information in TECS suspicious and chose to

search Whitted’s cabin based upon it. By drawing on his

particular expertise, he evaluated the information and drew

inferences that created reasonable suspicion of drug smuggling.

Arvizu, 534 U.S. at 273 (permitting officers “to make inferences

from and deductions about the cumulative information available

to them that ‘might well elude an untrained person’”); see also

Brown v. Texas, 443 U.S. 47, 52 n.2 (1979) (observing that a

trained investigator may be “able to perceive and articulate
24

meaning in given conduct which would be wholly innocent to

the untrained observer”). His training and three years

experience as a canine enforcement officer doing similar work

allowed him to draw inferences from “objective facts,

meaningless to the untrained,” and substantiate his suspicions.

United States v. Cortez, 449 U.S. 411, 419 (1981); see also

Smith, 273 F.3d at 634-35 (finding reasonable suspicion on

similar facts where passengers had taken a cruise bound for a

drug source country and had traveled there before, had paid in

cash two weeks before the cruise, had placed a call to a

shoreside number, and one had a criminal record). Accordingly,

we conclude that the agents had reasonable suspicion to search

Whitted’s cabin and its contents, and did not run afoul of the

Fourth Amendment in the context of a nonroutine search at the

border.

Conclusion

For the foregoing reasons, we will AFFIRM the denial of

the motion to suppress and uphold the jury’s verdict of

conviction.
25

CHAGARES, Circuit Judge, concurring.

Although I agree with the ultimate result reached by my

colleagues in this case, I write separately because I would take

a different approach to reach this outcome. We all agree that,

even assuming the search of James Whitted’s cabin was nonroutine, reasonable suspicion existed to support the search. I

would affirm the District Court’s refusal to suppress on this

limited basis and thereby avoid the unnecessary resolution of a

constitutional issue of first impression. I thus concur

respectfully with the judgment of the majority. 

“It is not the habit of the court to decide questions of a

constitutional nature unless absolutely necessary to a decision of

the case.” Burton v. United States, 196 U.S. 283, 295 (1905).

Such restraint is well-established and recognized universally.

See, e.g., Mills v. Rogers, 457 U.S. 291, 305 (1982) (“It is this

Court’s settled policy to avoid unnecessary decisions of

constitutional issues.”).

The most often-cited enunciation of this concept comes

from Justice Brandeis’ famous concurrence in Ashwander v.

Tennessee Valley Authority, 297 U.S. 288 (1936), where he

summarized certain prudential principle that the Supreme Court

“developed . . . for its own governance in the cases confessedly

within its jurisdiction . . . .” Id. at 346 (Brandeis, J.,

concurring). Under this “series of rules,” the Court “has

avoided passing upon a large part of all the constitutional
 This prudential rule of constitutional interpretation is related 13

– but not identical – to the concept of constitutional avoidance.

The latter applies “[w]here an otherwise acceptable construction

of a statute would raise serious constitutional problems . . . .”

Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. &

Const. Trades Council, 485 U.S. 568, 575 (1988). In such cases,

“the Court will construe the statute to avoid such problems

unless such construction is plainly contrary to the intent of

Congress.” Id.; see also Arizonans for Official English v.

Arizona, 520 U.S. 43, 78 (1997) (“Federal courts, when

confronting a challenge to the constitutionality of a federal

statute, follow a ‘cardinal principle’: They ‘will first ascertain

whether a construction . . . is fairly possible’ that will contain

the statute within constitutional bounds.”) (quoting Ashwander,

297 U.S. at 348) (Brandeis, J., concurring); United States v.

Grier, 475 F.3d 556, 567 n.7 (3d Cir. 2007) (describing

concept); United States v. Ali, 508 F.3d 136, 147 (3d Cir. 2007)

(stating that constitutional avoidance “applies to statutory

interpretation only where there is doubt whether an otherwise

acceptable construction of a statute would raise serious

26

questions pressed upon it for decision.” Id. One such rule was

that “[t]he Court will not anticipate a question of constitutional

law in advance of the necessity of deciding it . . . .” Id.

(quotation marks omitted). We have recognized that this

“Ashwander principle [] calls for the avoidance of ruling on

federal constitutional matters in advance of the necessity of

deciding them, to postpone judicial review where it would be

premature.” Armstrong World Indus., Inc. v. Adams, 961 F.2d 13
constitutional problems”) (quotation marks omitted).

27

405, 413 (3d Cir. 1992) (citation omitted). 

Powerful considerations, both theoretical and practical,

underpin this concept. See New Jersey Payphone Assoc. v.

Town of West New York, 299 F.3d 235, 249 (3d Cir. 2002)

(Alito, J., concurring) (“The rationales behind the doctrine of

avoiding constitutional questions except as a last resort are

grounded in fundamental constitutional principles – the great

gravity and delicacy of judicial review, separation of powers, the

paramount importance of constitutional adjudication, the case or

controversy requirement, and principles of federalism.”)

(quotation marks omitted). Just a few examples will suffice

here. First, and most simply, the rule avoids wasting scarce

judicial resources. Second, “[t]he concern that unnecessary

decisions be avoided has its most important justification in the

prospect that unnecessary decisions may be wrong decisions.”

13 Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 3531.3 (3d ed. 2000). Third, our adversary

system requires litigants to present – as squarely as possible –

the narrow and exact question to be decided. This is because

“specific facts stimulate more comprehensive and accurate

adjudication than the flights of fancy. The concrete

circumstances presented by a plaintiff who has suffered actual

injury may illuminate the abstract issues, and help establish the

limits of the decision for future cases.” Id. In fact, “[t]he

simplest theoretical perspective on standing draws directly from
28

our tradition that unnecessary judicial decisions should be

avoided.” Id.; see also Elk Grove Unified Sch. Dist. v.

Newdow, 542 U.S. 1, 11-12 (2004) (observing that standing

rules are consistent with the principles that commit courts to

pass on constitutional questions only when necessary).

The prudential principle set forth by Justice Brandeis

applies here and should control our analysis of this case. The

parties do not dispute that the search of Whitted’s cabin took

place at a border. Therefore, the very best Whitted can hope for

is that the border search here is held to be “non-routine,” in

which case we would examine the Government’s search for

reasonable suspicion. See, e.g., United States v. Montoya de

Hernandez, 473 U.S. 531, 541 (1985) (holding that “detention

of a traveler at the border, beyond the scope of a routine customs

search and inspection,” is constitutional only if supported by

reasonable suspicion); United States v. Rivas, 157 F.3d 364, 367

(5th Cir. 1998) (holding that drilling into metal frame of trailer

when traveler was stopped at a checkpoint was a non-routine

search requiring reasonable suspicion); United States v. Mejia,

720 F.2d 1378, 1381-82 (5th Cir. 1983) (holding that abdominal

x-ray of suspected drug courier required reasonable suspicion).

My colleagues and I all agree that the totality of the

circumstances here did create reasonable suspicion that Whitted

was engaged in narcotics smuggling. He was traveling alone on

a cruise ship. That ship traveled to narcotics source countries.

Whitted had purchased his single ticket in cash, shortly before
29

the ship departed. He had two prior convictions for drug

trafficking. He had recently visited countries associated with

narcotics production. The authorities in Puerto Rico found his

behavior suspicious. All of this certainly amounts to a

“particularized and objective basis” to believe Whitted might be

smuggling drugs. United States v. Arvizu, 534 U.S. 266, 273

(2002) (quotation marks omitted). The District Court analyzed

these facts correctly in denying Whitted’s suppression motion.

Because we need not resolve a constitutional issue of first

impression to affirm this result, I would not reach the issue.

Instead, I would hold simply that, even assuming the necessity

of reasonable suspicion, Whitted’s appeal would fail

nonetheless.

_____________