                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-15-2004

USA v. Aleman-Figuereo
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4506




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                                                    NOT PRECEDENTIAL


           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT




                          No. 03-4506




               UNITED STATES OF AMERICA

                               v.

                 JOSE ALEMAN-FIGUEREO,
                                  Appellant




     On Appeal from the District Court of the Virgin Islands
                 (D.C. Crim. No. 03-cr-00016)
         District Judge: Honorable Thomas K. Moore




          Submitted Under Third Circuit LAR 34.1(a)
                     December 13, 2004

Before: SLOVITER, FUENTES and GREENBERG, Circuit Judges.

                   (Filed: December 15, 2004




                  OPINION OF THE COURT
SLOVITER, Circuit Judge.

       Appellant Jose Aleman-Figuereo appeals the decision of the District Court of the

Virgin Islands denying his motion to suppress the evidence of approximately 1.4

kilograms of heroin obtained by United States Customs Officers in their search of the safe

located in Aleman-Figuereo’s cruise ship cabin. Aleman-Figuereo pled guilty to one

count of possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(i), but reserved the suppression issue for this appeal. We have jurisdiction

of his timely appeal pursuant to 28 U.S.C. §§ 1291, 1294(3). We will affirm.

                                             I.

       We need to recite the relevant facts more fully than we do in other non-

precedential opinions because of the highly factual nature of Aleman-Figuereo’s Fourth

Amendment challenge. In January of 2003, Aleman-Figuereo was a passenger onboard

the Adventures of the Sea cruise ship. The cruise itinerary included stops in Puerto Rico

and St. Thomas, as well as several foreign locations, including Aruba, Curacao, and St.

Maarten, all three of which are known drug source countries. Jose Figueroa, who had

been a customs inspector for seven years and who works out of the United States

Immigration and Customs Enforcement Office in San Juan, Puerto Rico, learned from the

advanced cruise ship passenger manifest that three to four weeks prior, Aleman-Figuereo

had traveled on the same vessel, with the same seven-day itinerary. Inspector Figueroa

also learned that Aleman-Figuereo had purchased the tickets for his second cruise within



                                             2
two to three days of its departure.

       Inspector Figueroa and other customs inspectors from the San Juan office traveled

to St. Thomas to assist in the search of the Adventures of the Sea cruise ship on January

18, 2003. Once the customs inspectors were onboard the vessel in the Virgin Islands,

ship security personnel informed them that Aleman-Figuereo and his companion acted

“strange, not normal” as “they didn’t come out a lot from the cabin.” App. at 34.

       Accompanied by customs officers and national guardsmen, ship security personnel

entered Aleman-Figuereo’s locked cabin and announced Inspector Figueroa and his

colleagues. In response to Inspector Figueroa’s requests, Aleman-Figuereo congenially

answered questions and permitted a search of the cabin. Because the cabin safe was

closed and locked, Inspector Figueroa directed Aleman-Figuereo to open the safe with his

combination. At first, Aleman-Figuereo denied using the safe or knowing the

combination. After Inspector Figueroa informed him that a closed safe necessarily

indicated that it was locked by a personal combination, Aleman-Figuereo tried several

times to open the safe to no avail. Inspector Figueroa then directed the security

personnel to find a crew member to open the safe. Aleman-Figuereo asserts that a crew

member unlocked the safe, while Inspector Figueroa insists that Aleman-Figuereo opened

the safe after his female companion gave him a combination. The difference is

insignificant. The safe contained a wallet, a birth certificate, and, significantly, a pair of

spandex shorts with packages of heroin sewn into the seams. Aleman-Figuereo was



                                               3
    subsequently read his rights and taken to another part of the vessel for further

    questioning.

           By information dated January 27, 2003, Aleman-Figuereo was charged with one

    count of possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1),

    841(b)(1)(A)(i), and another count of importation of heroin in violation of 21 U.S.C. §

    952(a). Aleman-Figuereo filed a motion to suppress the contraband obtained from the

    search. At the suppression hearing on April 16, 2003, the District Court denied Aleman-

    Figuereo’s motion on the grounds that the customs officers executed a routine border

    search. The Court also made the alternative finding that the officers had reasonable

    suspicion to search Aleman-Figuereo’s cabin and the locked safe therein.1

           Aleman-Figuereo pled guilty to the first drug trafficking count in a conditional

    plea agreement, dated May 14, 2003, which also permitted him to appeal the District

    Court’s suppression ruling. On October 31, 2003, Aleman-Figuereo was sentenced to the

    statutory minimum of 120 months incarceration with five years of supervised release.

    This timely appeal followed.2


       1
1         During the April 16, 2003 suppression hearing, the parties rigorously disputed the
2   scope of Aleman-Figuereo consent to search the cabin premises. Because the District
3   Court decided the motion on other grounds, it did not make a finding as to whether
4   Aleman-Figuereo consented to the search of his cabin or cabin safe therein.
       2
1           Aleman-Figuereo submitted additional papers pro se, challenging the District
2   Court’s decision on grounds comparable to those articulated by his current counsel.
3   Aleman-Figuereo also asserts a Sixth Amendment challenge to the performance of his
4   pretrial counsel during the plea negotiations. As it is well established in this circuit that
5   ineffective assistance of counsel claims are not entertained on a direct appeal, United

                                                   4
                                                  II.

             We review the District Court's denial of the motion to suppress for clear error as to

    the underlying factual findings and exercise plenary review of the District Court's

    application of the law to those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir.

    2002).

             There is no dispute that the search of Aleman-Figuereo’s cabin occurred at the

    “functional equivalent” of an international border. In United States v. Hyde, 37 F.3d 116

    (3d Cir. 1994), this court recognized the United States Virgin Islands as a longstanding

    customs border. We follow the approach taken by the Court of Appeals for the Fifth

    Circuit which construed the first port where a vessel docks upon its arrival from a foreign

    country as the “functional equivalent” of a customs border. United States v. Cardenas, 9

    F.3d 1139, 1147-1148 (5th Cir. 1993) (citing Almeida-Sanchez v. United States, 413 U.S.

    266, 272 (1973)). When Aleman-Figuereo’s cabin was searched, the Adventure of the

    Sea cruise ship was docked at St. Thomas en route from the foreign nations of Curacao

    and St. Maarten. Therefore, the search qualifies as a border search for the purpose of the

    Fourth Amendment.

             The Supreme Court has repeatedly held that “‘searches made at the border,

    pursuant to the longstanding right of the sovereign to protect itself by stopping and



6   States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991), we will dismiss Aleman-
7   Figuereo’s Sixth Amendment challenge without prejudice to his right to raise the issue in
8   an appropriate collateral proceeding.

                                                   5
examining persons and property crossing into this country, are reasonable simply by

virtue of the fact that they occur at the border.’” United States v. Flores-Montano,

U.S.     , 124 S.Ct. 1582, 1585 (2004) (quoting United States v. Ramsey, 431 U.S. 606,

616 (1977)); see also United States v. Glasser, 750 F.2d 1197, 1200 (3d Cir. 1984) (“One

of the inherent powers of a sovereign is the power to restrict or regulate the entry of

persons and property across the border.”). Accordingly, customs officials, among others,

have the authority to perform routine border searches without warrant, probable cause, or

reasonable suspicion. See United States v. Montoya de Hernandez, 473 U.S. 531, 538

(1985); see also United States v. Martinez-Fuerte, 428 U.S. 543, 562-64 (1976) (holding

that border searches conducted at roadway checkpoints, even those made primarily on

basis of race, are constitutional even in absence of individualized suspicion).

       Our decisions have followed the Supreme Court’s precedent. See, e.g., Bradley v.

United States, 299 F.3d 197, 201-05 (3d Cir. 2002) (finding that pat down by customs

inspectors which entailed both prodding of external genitalia and breasts was part of

routine search of air passenger arriving at U.S. airport from Jamaica); United States v.

Ezeiruaku, 936 F.2d 136, 140-41 (3d Cir. 1991) (holding that search of outbound luggage

to Germany at U.S. airport is routine).

       In contrast, non-routine border searches require reasonable suspicion. Montoya de

Hernandez, 473 U.S. at 541; Ezeiruaku, 936 F.2d at 140. This category of search stands

as a narrow exception to customs officials’ broad authority and is reserved for searches



                                              6
that are highly intrusive and pose serious threats to the dignity and privacy interests of the

person being searched. Flores-Montano, 124 S.Ct. at 1585; Montoya de Hernandez, 473

U.S. at 541 (holding that detention of border crosser so that bowel movements could be

monitored for evidence of drug smuggling was not routine); see also Bradley, 299 F.3d at

203-04 (“[W]e do not foreclose the possibility that a patdown gone awry could become so

intrusive as to become a nonroutine search requiring application of the reasonable

suspicion standard.”).

       Aleman-Figuereo contends that the search of his cabin and the safe therein was

intrusive and non-routine because the customs officers deliberately flew from Puerto Rico

to St. Thomas to conduct the search. Aleman-Figuereo further contends that the search

was unlawful because the officers had neither the requisite reasonable suspicion nor his

consent.

       Aleman-Figuereo’s position ignores the weight of binding judicial authority.

Whether or not a border search is routine does not turn on the efforts of customs officials

to arrive at a particular customs border. Rather, it depends on the quality of the search,

i.e., whether it was intrusive to such an extent that it genuinely affected the privacy

interests of the person searched. See Flores-Montano, 124 S.Ct. at 1585; Montoya de

Hernandez, 473 U.S. at 541; Bradley, 299 F.3d at 203-04.

       Neither the Supreme Court nor this court has addressed whether the search of a

cabin of a cruise ship at a customs border is sufficiently intrusive to require reasonable



                                              7
    suspicion. Other courts presented with the issue have declined to adopt a generally

    applicable rule, instead relying on the facts of the particular case to decide whether there

    was reasonable suspicion, thereby obviating the need to address the issue of routine

    search vel non. See, e.g., United States v. Smith, 273 F.3d 629, 634 (5th Cir. 2001)

    (holding customs officials had reasonable suspicion because occupants of cabin fit drug

    smuggler profiles); United States v. Brown, 298 F. Supp. 2d 1317, 1320 n.2 (S.D. Fla.

    2004) (denying motion to suppress after finding reasonable suspicion). But see United

    States v. Alfonso, 759 F.2d 728, 738 (9th Cir. 1985) (holding reasonable suspicion

    required when search involved cabin on large shipping vessel that constituted living

    quarters of occupant).3

           Because the customs officials here clearly possessed reasonable suspicion, the case

    before us is not the occasion to announce a general rule applicable to the search of a

    cruise ship cabin. Thus, we need not address whether the search of Aleman-Figuereo’s

    cabin was a routine or non-routine border search. If routine, the search would have been

    lawful without any showing of reasonable suspicion by customs officers or consent by

    Aleman-Figuereo. If non-routine, the search would also be lawful, as the totality of the



       3
1           We have alluded to the public nature of a roomette aboard an interstate train in
2   considering whether a passenger’s consent to a search was given freely. See United
3   States v. Kim, 27 F.3d 947 (3d Cir. 1994). In dictum, we suggested approval of the
4   district court’s finding that the roomette was public, where the roomette occupant left its
5   door open despite its proximity to heavily populated areas of the train. Id. at 952 n.2; see
6   also United States v. Whitehead, 849 F.2d 849, 854-55 (4th Cir. 1988) (holding that
7   passengers have reduced expectation of privacy in railway sleeping compartments).

                                                  8
circumstances in this case created a reasonable suspicion that Aleman-Figuereo was

engaged in narcotics smuggling thereby justifying the officers’ search of his cabin and the

cabin safe.

       Under the reasonable suspicion standard, customs officials must have a

“particularized and objective basis” to suspect legal wrongdoing. United States v.

Arvizu, 534 U.S. 266, 273 (2002) (internal quotation and citation omitted). We must

review the totality of the circumstances of each case. Id. at 274. It is not sufficient under

this standard that the inspectors can articulate reasons why they searched Aleman-

Figuereo’s cabin if those reasons are not indicative of behavior in which few innocent

people engage. See Karnes v. Skrutski, 62 F.3d 485, 493 (3d Cir. 1995). “[T]he factors

together must serve to eliminate a substantial portion of innocent travelers before the

requirement of reasonable suspicion would be satisfied.” Id.

       In this case, customs inspectors uncovered numerous factors prior to approaching

Aleman-Figuereo’s cabin that raised the suspicion that Aleman-Figuereo was involved in

drug smuggling. First, Aleman-Figuereo took a cruise bound for several known drug

source countries. Second, he had traveled on the very same cruise with the same exact

itinerary only three to four weeks prior. Third, Aleman-Figuereo purchased his passage

on the second voyage only a few days prior to departure. Lastly, cruise ship personnel

observed that Aleman-Figuereo and his companion barely left their cabin. Although each

factor standing alone could be consistent with innocent behavior, all of these factors,



                                              9
taken as a whole, support the District Court’s finding that the customs inspectors had

reasonable suspicion to search the contents of Aleman-Figuereo’s cruise ship cabin for

contraband. Furthermore, the Supreme Court has acknowledged that reasonable

suspicion analysis permits “officers to draw on their own experience and specialized

training to make inferences from and deductions about the cumulative informative

available to them that might well elude an untrained person.” Arvizu, 534 U.S. at 273

(internal citations and quotations omitted). Hence, Inspector Figueroa’s seven years

experience as a customs inspector in Puerto Rico and his expertise with contraband

smuggling further serve to substantiate the District Court’s finding of reasonable

suspicion.

         Because there was reasonable suspicion, we need not consider Aleman-Figuereo’s

argument that he did not consent to the search of the cabin generally, or to the locked

cabin safe in particular. Our determination that the customs officers had reasonable

suspicion to search Aleman-Figuereo’s cabin and the safe therein assures that the search

was lawful under the Fourth Amendment and that the District Court properly denied the

motion to suppress the contraband uncovered during the search of Aleman-Figuereo’s

cabin.

                                             III.

         For the foregoing reasons, we will affirm the judgment of conviction.




                                             10
