                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             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Precedential or Non-Precedential: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


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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.

                                3
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.

                               4
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.

                               5
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. Cardona-
Sandoval, 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).
6
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

                                7
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 Wright-
Barker, 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.

                               9
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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