
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1385                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              JOAQUIN CARDONA-SANDOVAL,                                Defendant, Appellant.                                 ____________________          No. 92-1386                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               ALEJANDRO ROJANO-RANGEL,                                Defendant, Appellant.                                 ____________________          No. 92-1387                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 JORGE GOMEZ-OLARTE,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                _____________________               David W. Rom n, by  appointment of the Court,  for appellant               ______________          Joaqu n Cardona-Sandoval.               Juan R. Acevedo-Cruz, by appointment of the Court, with whom               ____________________          Charles A. Rodr guez,  was on brief  for appellants Jorge  G mez-          ____________________          Olarte and Alejandro Rojano-Rangel.               Jeanette  Mercado-R os,  Assistant  United States  Attorney,               ______________________          with whom Daniel F. L pez-Romo, United States Attorney, and  Jos                     ____________________                               ____          A. Quiles-Espinosa, Senior Litigation  Counsel, were on brief for          __________________          appellee.                                 ____________________                                  September 29, 1993                                 ____________________                                   AMENDED OPINION                                 ____________________                    TORRUELLA,  Circuit Judge.   This  appeal involves  the                                _____________          validity  of a search of  a vessel.   Appellants Joaqu n Cardona-          Sandoval, Alejandro Rojano-Rangel,  and Jorge G mez-Olarte appeal          their convictions of possessing cocaine with intent to distribute          it in violation of 46 U.S.C.   1903(a), (b)(1), and (f).  For the          reasons that follow, we reverse the convictions.                                          I                                          I                    The  facts are set forth in the light most favorable to          the  government.    Appellants  Cardona-Sandoval  (the  captain),          Rojano-Rangel  and  G mez-Olarte (the  crew),1  were  on board  a          forty-three  foot  sports-fisherman, Florida  registration Number          "FL  8304 EM"2 allegedly on route from Colombia, South America to          St. Maarten.  All appellants are Colombian nationals.                      On  February 25,  1990,  they were  intercepted by  the          U.S.S. BIDDLE, a Navy  destroyer.  The U.S.S. BIDDLE  was charged          with boarding northbound vessels  of less than four  hundred feet          as part  of the  government's drug interdiction  program.   Coast          Guard  officials aboard  the U.S.S.  BIDDLE were  to conduct  the          boardings and investigations.3                     Following   standard   procedure,  the   U.S.S.  BIDDLE          attempted radio and loudspeaker communication with FL 8304  EM in                                        ____________________          1  The third crew member, Alfonso Molina, was acquitted at trial.          2   The parties  stipulated that  the vessel was  subject to  the          jurisdiction of the United States.          3   Pursuant  to 10  U.S.C.    379(a) (Supp.  1992), Coast  Guard          officials  may be assigned to duty aboard Navy vessels to perform          drug interdiction.  See  United States v. Sandoval, 770  F. Supp.                              ___  _____________    ________          762, 767 (D.P.R. 1991).                                         -3-          both  English and Spanish, but  the vessel never  responded.  The          U.S.S.  BIDDLE then  dispatched  a six-member  boarding party  to          conduct  a  document and  safety inspection.    The crew  did not          object to this inspection.                    This  initial boarding lasted  approximately two hours.          Two members of the boarding party guarded the captain and crew at          the  stern of  the  vessel  while  four  others  checked  it  for          compliance  with safety regulations.   They also  conducted a so-          called space accountability search to  ensure that the vessel was          not  compartmentalized  secretly  for  smuggling.     During  the          inspection, the captain, Cardona-Sandoval, stated that Roberto de          Armas owned the vessel and that appellants were employed to bring          the  boat  from  Colombia  to  St.  Maarten.    The  registration          document, however, indicated that  Luis Rodr guez owned the boat.          Cardona-Sandoval claimed not to know Rodr guez.                      As the space  accountability search neared  completion,          one of the junior  officers asked the senior officer  leading the          boarding party, Petty Officer William Ronald Spake, to personally          inspect  certain  areas  that  appeared suspicious.    The  areas          included  a newly-constructed shower; several walls that appeared          thicker than  necessary, according  to the petty  officer's prior          experience; and a  large water  tank.  Spake  indicated that  the          generally "messy" state of the boat made him suspicious, as well,          but after two hours  of searching, no contraband was  discovered.          He  then  cited  vessel  master  Cardona-Sandoval  with  a  minor          violation -- for producing a photocopy of the boat's registration                                         -4-          rather  than  the original  --  and conferred  with  his superior          aboard  the U.S.S.  BIDDLE,  Lieutenant George  Boyle.   The  two          agreed that they had completed the space accountability search to          the best of their ability.  Lt. Boyle directed the boarding party          to  report back to the  U.S.S. BIDDLE and,  thereafter, the Coast          Guard allowed appellants to continue their voyage.                    That evening the boarding party and Lt. Boyle assembled          for  debriefing.  The team  made several observations:   (1) that          recent  reconstruction had  been  done on  the  vessel; (2)  that          appellants  were from a known  drug source country;  (3) that the          sleeping cabins  were in disarray,  which suggested to  the Coast          Guard that the crew slept on the deck; (4) that the boat had been          painted recently and  the paint  was peeling; and,  (5) that  the          United States  flag was not displayed as it should have been.  In          addition,  one  member of  the party  had  become ill  during the          search, and the officer  who replaced him failed to  continue the          search  exactly where the other officer  had left off.  Lt. Boyle          determined  that   the  boarding  party  had   failed  to  search          adequately  the  space  behind   the  medicine  cabinet  and  the          reconstructed shower area, and  decided to reboard FL 8304  EM to          complete the space accountability search.  The record indicates a          controversy regarding the real impetus for the second search.4                      In addition,  sometime on February 25,  1990, Lt. Boyle                                        ____________________          4   See United States v.  Sandoval, 770 F. Supp.  at 766 (stating              ___ _____________     ________          Boarding Report of  February 25, 1990  cited medicine cabinet  on          bulkhead as reason for reboarding; and rejecting the magistrate's          finding  that the water tank was a specific reason for the second                                             ________          boarding).                                         -5-          learned:    (1) that  the  El Paso  Intelligence  Center ("EPIC")          indicated  that  the  captain  had been  convicted  of  smuggling          marijuana in  1984; (2)  that FL  8304 EM was  also known  as the          "Wicho"  and  was on  the EPIC  lookout  list as  possibly having          hidden  compartments  for  smuggling;   and  (3)  that  EPIC  had          information on both Roberto de Armas and Luis Rodr guez.  Because          Lt.  Boyle failed to note or was  unable to recall the exact time          that he received the EPIC information, we do not know whether the          Coast Guard possessed this information during the initial search.                    On the morning  of February 26,  1990, a Navy  aircraft          located the FL 8304 EM on a course 100 degrees different from the          day  before.  The Coast Guard  testified that although conditions          at sea had  deteriorated considerably, the  change in course  was          not justified by the weather.   The Coast Guard inferred that  FL          8304 EM had taken evasive action.                    Although the Coast Guard  justified the second boarding          as  required by  the need  to  complete the  space accountability          search,  the  search actually  conducted  was  much broader  than          initially  purposed.     In   fact,  the  second   search  lasted          approximately five hours.   During that time,  the boarding party          used an axe  and a crowbar to further investigate the shower area          and space underneath the water tank.  No contraband was found.                      Ultimately, the  Coast Guard  determined that  the seas          were too rough to continue the  search at sea and they decided to          take the vessel and its crew to the Roosevelt Roads Naval Base at          Ceiba,  Puerto Rico, in order to continue the search.  Appellants                                         -6-          were  transferred  to  the  U.S.S. BIDDLE,  allegedly  for  their          safety,  and Coast  Guard personnel  piloted FL  8304 EM  back to          Puerto  Rico.  The district  court found that  appellants did not          consent to be taken to Puerto Rico.  Id. at 766.                                                 ___                    On  February  27,  while  in transit  to  Puerto  Rico,          Lt. Boyle inspected the FL 8304 EM personally, and reaffirmed the          decision to bring  the vessel  to shore  because certain  spaces,          such  as the  water tank  (which was  welded to  the ribs  of the          vessel), could not be accessed at sea without the risk of sinking          the boat.                    On  February 28,  the  vessel arrived  in Puerto  Rico.          Navy divers and a narcotics search dog were brought to search the          vessel,  but detected nothing.  The Coast Guard stated that there          were  too many things strewn  over the deck  that interfered with          the  dog's olfactory sense.  The water tank was then removed from          the boat, and  the gasoline  tank was  emptied.   Notwithstanding          this search,  at the end of the day no contraband had been found.          Lt. Boyle  transferred  custody of  the FL  8304  EM to  Lt. J.G.          Gatlin of the San Juan Coast Guard Law Enforcement attachment.                    On March 1, the FL 8304 EM was removed from  the water.          At this point  a destructive search began  in earnest.   The poor          condition  of the deck and  other factors that  suggested that it          might have  been  raised to  create hidden  spaces, prompted  the          Coast Guard to  use a chainsaw to cut through  the deck in search          of narcotics.  The ceilings  and walls of the cabins were  pulled          down and thoroughly searched.   Gatlin and his team  discovered a                                         -7-          grinder  which  could  be used  to  cut  fiberglass,  as well  as          cushions on the deck  filled with fiberglass shavings, suggesting          that   fiberglass   molding   work   had  been   done   recently.          Nevertheless, by the  end of  the day no  illicit substances  had          been found on the FL 8304 EM.                    The government did not  give up.  The search  continued          on March 2nd.  That  afternoon, the search team drilled  into two          beams that ran the length of the vessel and upon which the engine          was mounted.   Cocaine was found  there.  Yet it  took the search          team  even more  time to  find the  place from which  the cocaine          could be accessed.  Using an axe and crowbar, the officers worked          for several minutes to open an access point.                      After  the  U.S.S. BIDDLE  and  FL 8304  EM  arrived at          Roosevelt  Roads Naval  Station on  February 28,  appellants were          detained at the base for six hours under guard, during which time          they received no  food.  Subsequently,  they were transferred  to          Immigration and Naturalization Service ("INS")  custody and moved          to  the airport  in San Juan  where they were  detained for three          hours  in a  locked room.   Thereafter  they were  handcuffed and          transported to the INS detention facilities at the Salvation Army          in San Juan, where they were placed in a large locked room, which          resembled a cage.  There, they were detained during the three-day          on-land search until 5:00  P.M. on March  2, 1990 when they  were          formally arrested.                    After   their    arrest,   appellant   Cardona-Sandoval          explained to  United States Customs Special  Agent Roberto Jusino                                         -8-          that  he  had been  hired by  Roberto  de Armas  in Barranquilla,          Colombia to pick up FL 8304 EM at R o Hacha, Colombia and take it          to St. Maarten.  He was to be paid 80,000 Colombian pesos for the          job.  Similarly,  appellant Rojano-Rangel stated that he had been          hired by  Cardona-Sandoval  as a  crew member  for 60,000  pesos.          During   the  trial,   the  prosecution  and   several  witnesses          incorrectly  stated   the  compensation  in  dollars,  when  they          actually meant pesos.  Because the words peso and dollar are used          interchangeably in Puerto Rico to mean United States dollars, the          parties  stipulated  at  a later  point  in  the  trial that  any          reference to  United States  dollars was  incorrect and  that the          correct reference was to Colombian pesos.  Agent Jusino testified          at trial that the exchange rate for Colombian pesos was very low,          but did  not  testify as  to  the value  of the  compensation  in          American  dollars.    Appellants attempted  to  introduce  expert          testimony  on  the exchange  rate but  the district  court denied          their  proffer,  finding  the   witness  they  attempted  to  use          unqualified to testify on such matters.                                          II                                          II                    Appellants  challenge  their  convictions   on  several          grounds.   They allege that the  district court improperly denied          their motion  to suppress  evidence seized  during the search  of          their vessel, which they  claim was in violation of  their Fourth          Amendment rights.   Alternatively,  they argue that  the evidence          was  insufficient  to support  the  guilty verdicts.    They also          contend  that the  district court  committed reversible  error by                                         -9-          refusing to voir dire  the jury regarding their knowledge  of two          prejudicial    newspaper    articles    published   during    the          deliberations, and  by  refusing  to  admit the  testimony  of  a          defense expert  witness  as  to the  exchange  rate  between  the          Colombian peso and the United States dollar.                    The district  court denied  the motion to  suppress the          evidence seized from  the vessel,  holding that  (1) the  cocaine          seized was not the fruit of an illegal arrest; (2) the appellants          did not have standing to challenge the search and seizure because          they  had no privacy interest  in the structural  beams along the          hull of the vessel; and (3) the Coast Guard had probable cause to          bring  the ship  to  Roosevelt Roads  for  a destructive  search.          United  States v. Sandoval, 770 F. Supp.  at 766-67.  Although we          ______________    ________          disagree  with the  district court's  conclusion  that appellants          were not under arrest  once they were brought to  Puerto Rico and          placed in a holding cell for approximately three days while their          vessel was searched, we  agree that the cocaine seized  cannot be          considered  the  fruit  of  that   illegal  arrest.    We  focus,          therefore, on the issues related to the search of the vessel.                                         III                                         III                    The  Fourth Amendment  guarantees "[t]he  right  of the          people  to  be secure  in  their  persons,  houses,  papers,  and          effects,  against unreasonable searches  and seizures  . .  . ."5                                        ____________________          5  United States  v. Verdugo-Urquidez, 494 U.S. 259,  264 (1990),             _____________     ________________          has  no application because the  vessel was a  United States flag          ship and  the violation occurred within  United States territory.          Cf. United States v. Aikens, 947 F.2d 608, 613 (9th Cir. 1990).          ___ _____________    ______                                         -10-          An  individual's   Fourth  Amendment   right  to  be   free  from          unreasonable  searches  is implicated  when  he  or she  (1)  has          "manifested  a subjective  expectation of  privacy" in  the place          searched, which (2) "society accepts as  objectively reasonable."          California  v.  Greenwood,  486  U.S.  35,  39 (1988);  see  also          __________      _________                               _________          O'Connor  v. Ortega,  480 U.S.  709, 715  (1980); Katz  v. United          ________     ______                               ____     ______          States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).          ______                    To  demonstrate a "subjective  expectation of privacy,"          the Court has required little  more than evidence that defendants          made some minimal effort to protect their property or  activities          from warrantless intrusions.   See, e.g., Greenwood,  486 U.S. at                                         ___  ____  _________          39 (placing  garbage in  opaque plastic bags  "clearly" manifests          "subjective expectation  of privacy," even though  bags are later          publicly  discarded); California  v. Ciraolo,  476 U.S.  207, 211                                __________     _______          (1986) (building ten-foot fence around yard manifests "subjective          expectation  of  privacy"  from  side  walk traffic).    But  cf.                                                                   ___  ___          Rawlings v. Kentucky, 448 U.S. 98, 104 (1980) (placing contraband          ________    ________          in acquaintance's purse does not manifest "subjective expectation          of privacy").                    There  is "no  talisman  that determines  in all  cases          those privacy expectations that society is prepared to  accept as          reasonable."  O'Connor, 480  U.S. at 715.  The  reasonableness of                        ________          an  expectation of privacy and  the proper standard  for a search          vary  according to  context.   Id.    While "arcane  distinctions                                         ___          developed in property and  tort law" do not control  the inquiry,          Rakas  v.  Illinois, 439  U.S. 128,  143  (1978), we  do consider          _____      ________                                         -11-          ownership,  possession,  control,  ability to  exclude  from  the          premises,  or   a  legitimate  presence  on   the  premises  when          determining the existence of a legitimate expectation of privacy.          United  States v.  Melucci, 888  F.2d 200,  202 (1st  Cir. 1989);          ______________     _______          United States  v. Aguirre, 839 F.2d 854, 856 (1st Cir. 1988).  In          _____________     _______          addition,  because of  the "circumstances  and exigencies  of the          maritime  setting," we  have recognized  that individuals  have a          diminished  expectation of privacy on a vessel as opposed to that          which can be claimed in their homes.  See, e.g., United States v.                                                ___  ____  _____________          Green, 671 F.2d  46, 53 (1st Cir.),  cert. denied, 457  U.S. 1135          _____                                ____________          (1982);  United States v. Hilton,  619 F.2d 127,  131 (1st Cir.),                   _____________    ______          cert. denied, 449 U.S. 887 (1980).  Finally, we note that "Fourth          ____________          Amendment  rights are  personal rights  which .  . .  may  not be          vicariously asserted."  Alderman v. United States,  394 U.S. 165,                                  ________    _____________          174  (1969).  With these principles as background, we turn to the          facts of the present case.                    Appellants  must be  divided  into two  groups for  the          purpose  of  measuring the  legitimacy  of  their expectation  of          privacy:    the  captain and  the  crew  members.   The  captain,          Cardona-Sandoval,  has a  cognizable expectation of  privacy from          unauthorized police intrusions everywhere  aboard his ship.  This          interest derives from his  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.  See, e.g.,                                                                 ___  ____                                         -12-          The Styria, 186 U.S. 1 (1902); Coastal Iron Works, Inc. v.  Petty          __________                     ________________________     _____          Ray Geophysical, 783 F.2d 577, 582 (5th Cir. 1986); United States          _______________                                     _____________          v. Aikens, 685 F. Supp. 732, 736 (D. Hawaii 1988), rev'd on other             ______                                          ______________          grounds,  946 F.2d 608 (9th Cir. 1990); see generally 1 Martin J.          _______                                 ___ _________          Norris, The  Law of Seamen    25:1 et  seq. (4th ed. 1985 & supp.                  __________________         __  ____          1993) (describing  broad powers of  master of vessel).   Cardona-          Sandoval objected to having his  boat taken to Puerto Rico  for a          destructive  search,  and  therefore  manifested  his  subjective          expectation  of  privacy in  the vessel.    It is  appropriate to          conclude  that Cardona-Sandoval's subjective expectation that he,          his vessel  and crew, not be taken from the high seas, brought to          a country which he did not  care to enter, subjected to a six-day          search  (three  of which  occurred  on  land  and  constituted  a          destructive search),  and  detained in  a barred  cage while  the          government destroyed  the vessel, is one that society is prepared          to recognize as  reasonable.  Thus, in his capacity  as master of          the  vessel, Cardona-Sandoval  has  a Fourth  Amendment right  to          challenge  the searches  in  this case.    See United  States  v.                                                     ___ ______________          Marrero,  F. Supp. 570, 574  (S.D. Fla. 1986)  (defendant who was          _______          owner and captain has Fourth Amendment right to contest search).                    Whether  the crew  members' expectation  of  privacy is          objectively reasonable is a more difficult question.  A number of          cases have limited the  areas of a  vessel in which crew  members          legitimately  possess  an expectation  of  privacy.   See  United                                                                ___  ______          States  v.  Arra,  630   F.2d  836,  841  n.6  (1st   Cir.  1980)          ______      ____          (questioning, without  deciding, whether crew  members have right                                         -13-          to challenge search in areas other than living quarters);  United                                                                     ______          States  v. Peterson, 812 F.2d 486, 494  (9th Cir. 1987) (crew has          ______     ________          no privacy  interest in cargo  hold); United States  v. Thompson,                                                _____________     ________          928 F.2d  1060, 1065 (11th Cir.)  (recognizing difference between          private areas  or footlockers versus cargo  holds), cert. denied,                                                              ____________          112  S. Ct. 270 (1991).   The underlying principle of these cases          is that a crew member cannot have an expectation of  privacy in a          space that the Coast Guard is free to inspect  in the course of a          document and safety check.   Obviously, contraband that the Coast          Guard  observes   within  plain  view  (or   detects  by  sensory          perception)  while searching the cargo hold is not within an area          in  which crew  members  could have  a  reasonable or  legitimate          privacy interest.  Thompson,  928 F.2d at 1064.  This, of course,                             ________          would apply to the captain as well.                    We think that cases involving substantial vessels, such          as cargo ships  and freighters,  must be  distinguished from  the          case at  hand.  It is quite understandable that in dealing with a          major vessel,  a court  should distinguish among  areas, treating          some as not susceptible to a reasonable expectation of privacy by          a  crew member.   For example,  the short  hand designation  of a          freighter's cargo hold  as a common area, in which no crew member          could  possess  a  reasonable  expectation  of  privacy,  is  not          objectionable  in the factual context of those cases by reason of          the size of the vessel and the de facto limitation of space which          the crew member can claim as private.                    But  our  case  involves  entirely   different  factual                                         -14-          circumstances.  Here, we confront a small pleasure craft used for          fishing.  The  vessel's compartments were small  and cramped, and          the crew numbered only four.   There was no practicable means  to          exclude  members of the crew  from specific areas  of the vessel.          Like hosts and their  overnight guests in a small  apartment, the          captain  and  crew   members,  each  individually,   possessed  a          reasonable expectation of privacy in all areas of the vessel with          respect to all individuals not living within the unit and sharing          the  space. This sharing of limited space and lack of demarcation          is the reality of life upon a small boat.                    In such a  vessel there  are no "common  areas" in  the          same sense that the cargo hold or dining room on a large boat are          public  or common.  The  fact that several  individuals may share          the limited space no more  makes the space public than would  the          fact that a family may share a house or a hotel room.   We cannot          lay down a yardstick for every case, but we think  that this case          is at the other pole from the freighter or cruise vessel where an          individual's private space can meaningfully be distinguished from          areas  that are  public or  common.   In sum,  we think  that the          crewmen in this case, like the captain, are entitled to raise the          question whether the search of the ship was unreasonable.6                    To the extent that Fifth and Eleventh Circuit cases may                                        ____________________          6  In equity, one might argue that the crew deserves at least  as          much protection as  the captain,  for the captain  is the  person          most likely to be trusted  with the knowledge of the presence  of          contraband,  and is also the  most likely leader  of the criminal          enterprise.  But standing rules do sometimes produce odd outcomes          and we note this point without relying upon it for our holding.                                         -15-          be  read  to dictate  a different  result  for small  vessels, we          decline  to follow them.  See, e.g.,  United States v. L pez, 761                                    ___  ____   _____________    _____          F.2d  632,  636  (11th  Cir.   1985)  (suggesting  methodological          approach  that  confers  or   rejects  right  to  contest  search          according to  function of specific compartments  within a vessel,          such as cargo hold or living quarters); United States v. DeWeese,                                                  _____________    _______          632  F.2d 1267,  1271  (5th Cir.  1980)  (ice hold  common  area;          dufflebags and footlockers private areas).                     Of  course,  the  captain and  crew's  expectations  of          privacy  is  subject to  the  Coast Guard'  authority  to conduct          document and safety  inspections and its limited  power to search          more  intrusively upon  reasonable  suspicion.   But this  is not          inconsistent with  recognizing that  the crew, like  the captain,          still retains  privacy  interests that  go beyond  the wallet  or          footlocker.   Rather,  it  means  that  in  determining  what  is          reasonable  behavior  by  officials,  there is  a  latitude  that          reflects the mobility of  the vessel, the special dangers  of sea          travel and other considerations peculiar to sea travel.  But that          latitude is not unlimited and we turn now to the question whether          in this case the government overstepped the bounds.                                          IV                                          IV                    The Coast  Guard's authority  under 14 U.S.C.    89(a)7                                        ____________________          7  14 U.S.C.   89(a) provides, in relevant part:                      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,                                         -16-          to  stop and board an American vessel  on the high seas8 is quite          broad.   We  have held  that administrative  safety and  document          inspections  are  permissible  even "without  any  particularized          suspicion of wrongdoing."  United States v. Elkins, 774 F.2d 530,                                     _____________    ______          533-34  (1st Cir. 1985) (quoting United States v. Burke, 716 F.2d                                           _____________    _____          935,  937 (1st Cir. 1983)).  Despite this empowerment, the Fourth          Amendment   still   prohibits   unreasonable   searches.      The          reasonableness of any search depends first  on "whether the . . .          action was justified at  its inception," Terry v. Ohio,  392 U.S.                                                   _____    ____          1,  20  (1968),  and  second,  on  whether  the  search  actually          conducted "was  reasonably related in scope  to the circumstances          which justified the interference  in the first place."   Id.; see                                                                   ___  ___          also New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).            ____ __________    ______                                        ____________________                      detection, and  suppression of violations                      of laws  of the United States.   For such                      purposes,   commissioned,   warrant,  and                      petty  officers  may at  any  time go  on                      board  of  any  vessel  subject   to  the                      jurisdiction,  or  the  operation of  any                      law,  of  the   United  States,   address                      inquiries to those on board,  examine the                      ships 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 immediately                      pursued and arrested  on shore, or  other                      lawful appropriate action shall  be taken                      . . . .          8  The "high seas" are those waters "beyond the  territorial seas          of  the U.S.  and  beyond the  territorial  seas of  any  foreign          nation." 21 U.S.C.   955b(b).                                           -17-                    Because  of the  special  circumstances  implicated  by          searches and seizures of vessels while at sea, we have recognized          a  diminished expectation  of privacy.   Green,  671 F.2d  at 53;                                                   _____          Hilton, 619 F.2d at 131.  Nevertheless, we require that the Coast          ______          Guard possess "reasonable and articulable grounds for  suspecting          that  the vessel  or  those on  board  are engaging  in  criminal          activities" before conducting a  thorough search beyond  checking          for  compliance with safety regulations.   Green, 671  F.2d at 53                                                     _____          (citing  Williams,  617  F.2d  at 1076,  1084).    The  necessary                   ________          "reasonable  suspicion" may  be  formed  on  the basis  of  facts          obtained  during the  safety  and document  inspection, and  once          reasonable  suspicion exists  the  inspecting officers  may drill          into a suspicious  area to  search for contraband.   Elkins,  774                                                               ______          F.2d  at 534.   Both the  document and  safety inspection,  and a          search  pursuant to  reasonable  suspicion, must  be confined  to          areas  reasonably  incident to  the  purpose  of the  inspection.          Therefore,  a  reasonable  suspicion  search  only  authorizes  a          limited intrusion.  For example, if a particular area of a vessel          raises a reasonable suspicion, then that area may be investigated          further.  Id. (suspicious fuel tank); see also L pez, 761 F.2d at                    ___                         ________ _____          636.   Neither  authority  provides carte  blanche  to destroy  a          vessel.    See  Hilton, 619  F.2d  at  132  (discussing scope  of                     ___  ______          document and safety inspection).                        In the maritime context, the  relative intrusiveness of          a  search must be justified by a corresponding level of suspicion          supported by specific facts gathered by investigating  officials.                                         -18-          Cf.  New Jersey v. T.L.O., 469 U.S. at 343-44, 347 (contemplating          ___  __________    ______          expanding scope of search where justified by facts giving rise to          further reasonable suspicion);  Villamonte M rquez,  462 U.S.  at                                          __________________          592.   We recognize that  by allowing each  inspection to provide          the  basis for  a more  intrusive search  -- document  and safety          inspection  supplying reasonable suspicion which later supports a          probable  cause   determination  --   we  risk  manipulation   by          government officials of the factual progression that provided the          authority for ever more  intrusive searches.  We think  that this          danger further  justifies the  deterrent supplied by  our holding          with  respect to standing.  More intrusive searches that yield no          contraband can  halt the forward progression  evidence that would          justify  a full,  destructive search.   Thus,  if a  document and          safety inspection causes a Coast Guard officer to have reasonable          suspicion  with respect to certain  areas, and a  search of those          areas  yields  nothing, then  a destructive  search might  not be          justified.    Cf. Mincey  v. Arizona,  437  U.S. 385,  393 (1978)                        ___ ______     _______          ("warrantless  search  must  be  'strictly  circumscribed by  the          exigencies  which justify  its initiation'")  (citation omitted).          Ultimately, a full, "stem to  stern," destructive search may only          be conducted on the basis of  probable cause.  L pez, 761 F.2d at                                                         _____          636-37; United States v. Andreu, 715 F.2d 1497 (11th Cir. 1983).                  _____________    ______                    The  facts  of  the  present  case  provide  a  graphic          illustration  of  the  principles  stated  above.    The  initial          boarding of the FL 8304 EM was for a perfectly legal document and          safety inspection pursuant to  14 U.S.C.   89(a).   Petty Officer                                         -19-          Spake  issued a minor violation notice for failing to present the          original  copy of the vessel's registration papers.  He felt that          he  was not authorized to proceed further with the search despite          his  "suspicion" regarding certain  spaces.  (Suppression Hearing          Transcript, October 1, 1990, at  58).  Matters changed,  however,          during the subsequent  debriefing.  Apparently,  EPIC information          was  received  regarding the  vessel,  the captain,  and  the two          alleged  owners.  In addition, certain spaces purportedly had not          been  accounted for  during the  document and  safety inspection.          The sequence of these developments raises questions.  The absence          of  adequate  answers  to  these questions  casts  doubt  on  the          validity of subsequent events.                    After-the-fact  rationalizing  is precisely  what makes          the relaxed warrant and cause procedures such a dangerous tool in          the  hands of over-zealous officials.   If we  had a clear record          establishing reasonable suspicion to reboard the FL 8304 EM based          on  specific factors, this action would be less troubling than it          presently is.  But in  this case the record is unclear as to when          specific pieces of information came to the attention of the Coast          Guard, and on what basis the Coast Guard justified their actions.                    The government's brief suffers  from the same  problem.          For  example,  it suggests  that  the  boarding party  discovered          fiberglass  shavings in the cushions  on the deck  of the vessel,          which added  support for  the second  boarding  and bringing  the          vessel  to  Puerto Rico.   But  our  investigation of  the record          indicated  that  Lt. Gatlin's  on-land  inspection  team did  not                                         _______                                         -20-          discover the fiberglass until  March 1.  We cannot  stress enough          the  importance of compiling a coherent and detailed record as to          when facts are discovered and when the inferences and conclusions          are  drawn therefrom.  A  finding of guilt  becomes irrelevant if          the  evidence upon which conviction is secured is not procured in          a constitutional manner.  Wong Sun v. United States, 371 U.S. 471                                    ________    _____________          (1963).                    Notwithstanding the abuse, we  conclude that the second          boarding  and  five-hour  search   was  justified  by  reasonable          suspicion rather than by the necessity of completing the document          and safety inspection.   The circumstances changed, however, once          the FL 8304 EM arrived in Puerto Rico.  The search by Navy divers          and  a narcotics detection dog,  and the thorough and destructive          inspection  of many structural  areas of the  boat (including the          suspicious  shower area  and water  tank), dissolved  any legally          sustainable suspicion once reasonably  held.  At that  point, all          the  government had to support  a probable cause  finding was the          EPIC information, the course  change, and the fact that  the boat          originated  from a drug source  country.  Such  evidence fails to          support a finding of probable cause.  In the absence  of probable          cause,  the destructive stem to stern search was illegal, and any          evidence  discovered as  a result  of that  excessively intrusive          search should have been  suppressed by the district court.   Wong                                                                       ____          Sun, 371 U.S. at 488.          ___                                          V                                          V                                      Conclusion                                      Conclusion                                      __________                                         -21-                    Because  we   find  that  all  the   appellants  had  a          reasonable expectation of privacy sufficient to confer a right to          challenge the  search  of  the  vessel, and  because  the  search          violated  appellants'  Fourth Amendment  rights,  the convictions          must  be  reversed.    We  need  not consider  appellants'  other          arguments.                    Appellants' convictions are reversed.                                                ________                                                            Dissent Follows                    CYR, Circuit Judge (dissenting  in part).  Although the                    CYR, Circuit Judge (dissenting  in part).                         _____________          stem-to-stern destructive search of the drydocked vessel exceeded          whatever  reasonable  limits  inhere  in a  safety  and  document          inspection,  I  believe  the  defendant crew  members  failed  to          establish an intrusion on their Fourth Amendment rights.                    As the  Supreme Court recently reiterated,  "a 'search'          occurs when an expectation of privacy that society is prepared to          consider  reasonable  is  infringed."   Soldal  v.  Cook  County,                                                  ______      _____________          Illinois,  113 S. Ct. 538,  544 (1992) (quoting  United States v.          ________                                         _____________          Jacobsen,  466 U.S. 109, 113  (1984)); see also  United States v.          ________                               ___ ____  _____________          Bouffard,  917 F.2d 673, 675-76 (1st Cir. 1990); United States v.          ________                                         _____________          Soule,  908 F.2d  1032, 1034  (1st  Cir. 1990).    The burden  of          _____          establishing a protected Fourth  Amendment privacy interest rests          squarely with  the individual  defendant.  Rawlings  v. Kentucky,                                                     ________     ________          448 U.S. 98, 104 (1980); Bouffard, 917 F.2d at 675 (quoting Rakas                                   ________                           _____          v. Illinois, 439  U.S. 128,  131 n.1 (1978)).   Accordingly,  for             ________          more than a decade  the Court has insisted that  "the capacity to                                         -22-          claim the protection  of the Fourth Amendment depends  . . . upon          whether  the  person who  claims [its]  protection  . .  .  has a          legitimate expectation of privacy in the invaded place."   Rakas,                                            __ ___ _______ _____     _____          439 U.S. at 143  (emphasis added); see also California  v. Green-                                             ___ ____ __________     ______          wood,  486 U.S. 35, 39-40  (1988); Rawlings, 448  U.S. at 104-105          ____                               ________          (1980);  United States v. Salvucci,  448 U.S. 83,  93 (1980); see                   _____________    ________                            ___          generally United  States v. Cruz Jimenez, 894 F.2d 1, 5 (1st Cir.          _________ ______________    ____________          1990) ("Demonstration of a [legitimate expectation of privacy] is          a  threshold   . . .  requirement,  and  analysis cannot  proceed             _________          ___________   ___  ________ ______  _______          further without its  establishment.") (emphasis added)  (footnote          _______ _______ ___  _____________          omitted).9nn                    In the  present case, where  no crew  member asserts  a          possessory or  proprietary interest  in the vessel  itself,10 the          establishment of a "legitimate expectation of privacy" turns upon          two inquiries.   First, we  inquire whether there  is any  "long-          standing  social custom"  which would  substantiate a  reasonable          expectation  of privacy  on  the part  of the  crew.   See, e.g.,                                                                 ___  ____          Minnesota  v.  Olson, 495  U.S.  91,  98-99 (1990)  (houseguest's          _________      _____          expectation of privacy); O'Connor v. Ortega, 480 U.S. 709, 717-18                                   ________    ______                                        ____________________          9  Accordingly,  I do  not discuss the  court's "probable  cause"          determination.          10  As the crew members presented no claim or evidence that their          proprietary or possessory rights were violated by the seizure, we          need  not address separately  their right to  challenge the "sei-          zure"  of the  vessel.  Though  the right to  contest a "seizure"          does not invariably require  that the moving party demonstrate  a          "reasonable  expectation  of  privacy"  in the  place  where  the          seizure occurred, see Soldal, 113  S. Ct. at 545-46, at the  very                            ___ ______          least the  moving party must demonstrate  a "possessory interest"          in  the property seized.   See id. at  543 (quoting Jacobsen, 466                                     ___ ___                  ________          U.S. at 113).                                         -23-          (1986) (public employees).  Second, absent any such "longstanding          social custom," we inquire whether the crew members had the right          to exclude intruders from  the area in or through  which on-board          access  could  be had  to the  property  seized.   Compare United                                                             _______ ______          States  v. Morales, 847 F.2d 671, 672 (11th Cir. 1988) (recogniz-          ______     _______          ing crew's Fourth Amendment  right to challenge search of  hidden          compartment, since authorities gained  access to hidden  compart-          ment  through crew's  private  quarters), with  United States  v.                        ______  _______  ________   ____  _____________          Lopez,  761 F.2d  632, 635-36  (11th Cir.  1985) (recognizing  no          _____          Fourth Amendment right  in hidden compartment, where  authorities          gained  access through  "common area"  on deck  of ship);  United                                                                     ______          States v.  Sarda-Villa, 760 F.2d  1232, 1236-37 (11th  Cir. 1985)          ______     ___________          (recognizing  no  Fourth Amendment  right  in hidden  compartment          underneath seats in main cabin of vessel).                    The contraband  seized from  the vessel in  the present          case  had  been hidden  in  a hollowed-out  compartment  within a          structural  beam running beneath the engine room.  Unbeknownst to          the  Coast Guard, the secret compartment in the beam was accessi-          ble  through  the engine  room.11   See,  e.g., United  States v.                                              ___   ____  ______________          Marsh, 747 F.2d  7, 11 (1st  Cir. 1984) (engine  room as  "common          _____          area"); United  States v. Stuart-Caballero, 686  F.2d 890, 891-92                  ______________    ________________          (11th Cir. 1982) (same), cert. denied, 459  U.S. 1209 (1983).  Of                                   _____ ______          course, it is clear that no "longstanding  social custom" confers                                        ____________________          11   The secret compartment seems to  have been situated so as to          be  accessible by means of  a concealed "entrance  way." Once the          "entrance  way" was unblocked,  the packages of  cocaine could be          pulled from the hollowed-out beam by means of a string.                                         -24-          on crew members an "expectation of privacy" in the engine room or             ____ _______          other "common areas" of a vessel.  See United States v. Arra, 630                                             ___ _____________    ____          F.2d  836, 841 n.6  (1st Cir. 1980)  ("areas subject  to a safety          inspection,  such as the engine room . . . are places where . . .          the crew  of a  vessel would  have little  if any  expectation of          privacy"); see  generally, e.g., United States v. Green, 671 F.2d                     ___  _________  ____  _____________    _____          46, 53 (1st  Cir.), cert.  denied, 457 U.S.  1135 (1982)  (noting                              _____  ______          diminished  expectation of privacy  on maritime vessels).   It is          possible, as the majority  suggests, that the master may  have an          expectation of privacy  from unauthorized official intrusions  in          the engine room, or elsewhere aboard the vessel.  See slip op. at                                                            ___          13-14; see also United  States v. Aikens,  685 F. Supp. 732,  736                 ___ ____ ______________    ______          (D. Hawaii 1988)  (master's "total control is consistent with the          recognition  of a  privacy  expectation which  emerges from  such          authority"),  rev'd on  other  grounds, 946  F.2d  608 (9th  Cir.                        _____ __  _____  _______          1990); see  generally 1 Martin  J. Norris,  The Law of  Seamen                    ___  _________                       __________________          25:1 et  seq. (4th ed.  1985 & 1993  supp.) (discussing  scope of               __  ____          master's authority aboard ship).  But crew members cannot base an          asserted  "reasonable  expectation of  privacy"  on  that of  the          captain,  even though, as coconspirators, their subjective inter-          ests in preventing governmental  access to the hidden compartment          and  its  contents may  have  been entirely  compatible  with the          captain's interests.12                                          ____________________          12   As the Court has stated time and again, the Fourth Amendment          protects individual  rights only, and no  defendant may piggyback                   __________          on  a codefendant's expectation of privacy.  See United States v.                                                       ___ _____________          Padilla, 113  S. Ct. ___,  61 U.S.L.W. 4458,  4458 (May 3,  1993)          _______          (rejecting Ninth  Circuit view  that "a co-conspirator  obtains a                                         -25-                    Turning to  the second inquiry, it is  clear that admi-          ralty  law confers no right whatever upon crew members to exclude          either the master, the  Coast Guard, or one another,  from common          areas  such as the engine room, let  alone from the interior of a          structural beam.  The master alone possesses such a right, as the          fiduciary representative  of the  vessel owner.    See 1  Norris,                                                             ___          supra,  at   14:8.   The  crew's authority  is derivative  of the          _____                                          __________          master's  authority, and  exercisable  pursuant  to the  master's          command or the command of his delegate or lawful successor.   See                                                                        ___          id. at    14:8, 25:16.  As  the Supreme Court stated in  Southern          ___                                                      ________          S.S. Co. v. N.L.R.B., 316 U.S. 31,  38 (1942), "[the master] must          ________    ________          command and the  crew must  obey.  Authority  cannot be  divided.          These are actualities which the law has always recognized."13                    Contrary  to the  majority's suggestion,  a "reasonable          expectation  of privacy"  on  the part  of  the crew  is  neither                                        ____________________          legitimate expectation of  privacy for Fourth  Amendment purposes          if he  has either a  supervisory role in the  conspiracy or joint          control  over the  place or  property involved  in the  search or          seizure"); Alderman v. United States, 394 U.S. 165, 171-72 (1969)                     ________    ______ ______          (rejecting "derivative standing" for coconspirators  under Fourth          Amendment); Soule, 908 F.2d at 1036-37 (same); Bouffard, 917 F.2d                      _____                              ________          at 675-76 & n.6  (tracing the successive demise of  various theo-          ries  of  Fourth  Amendment  "standing,"  including  "automatic,"          "derivative," and "target theory" standing).          13   Nor would the  mere fact that the master  may not have exer-                                                                      _____          cised his authority to control access to a particular area of the          _____          vessel mean  that the  crew possessed an  "objectively reasonable          expectation" that the master would  not do so in the future.   In          any  case, the  burden of proof  remains squarely on  the crew to                                                            __  ___ ____          assert that the master has renounced such authority.  Rawlings v.                                                                ________          Kentucky,  448 U.S.  98, 104  (1980); Bouffard,  917 F.2d  at 675          ________                              ________          (quoting Rakas v. Illinois, 439  U.S. 128, 131 n.1 (1978)).   The                   _____    ________          record  contains  neither  argument nor  evidence  suggesting  an          actual  renunciation  or  delegation  of  the  master's shipboard          authority in this case.                                         -26-          reasonably inferable nor automatically  enlarged simply by virtue          of the  small size and intimate nature of the vessel.  An automo-          bile  is much smaller than a 43-foot fishing boat, yet automobile          passengers,  qua passengers, have  no "reasonable  expectation of                       ___          privacy"  even in the  readily accessible  contents of  the glove          compartment or the open  area beneath the passenger seats.   See,                                                                       ___          e.g.,  Rakas, 439  U.S.  at 148-49;  see  also United  States  v.          ____   _____                         ___  ____ ______________          Lochan, 674 F.2d 960, 965 (1st Cir. 1982).          ______                    Finally,  but not  least  importantly, these  defendant          crew members  never asserted a reasonable  expectation of privacy                        _____ ________          based  on  the size  and intimate  nature of  the vessel.   Under          governing law,  therefore, the  record is wholly  insufficient to          suggest, let alone  establish, that the warrantless search of the          secret compartment in the structural beam intruded  on a "legiti-          mate expectation of privacy"  of either crew member.   Rakas, 439                                                                 _____          U.S. at  143.  The best that  can be said is  that, even assuming          its validity, the theory of Fourth Amendment "standing" relied on          by the court today is not implicated by the present record nor by          the district court's ruling.14                    The  egalitarian concerns animating  the court's ruling             that captain  and crew deserve the  same right to  redress the                                        ____________________          14  Since the  government directly challenged defendants' "stand-          ing" below, a remand to permit the district court to consider the          matter  further would  seem to  be precluded.   Compare  Combs v.                                                          _______  _____          United States, 408 U.S. 224,  227-28 (1972) (Per Curiam) (direct-          _____________          ing  remand  where  prosecutor  had  not  challenged  defendant's          "standing"),  with Rakas,  439  U.S. at  130-31 n.1  (refusing to                        ____ _____          remand where prosecutor had challenged "standing" at  suppression          hearing).  See also Bouffard, 917 F.2d at 677-78.                     ___ ____ ________                                         -27-          challenged governmental intrusion     though foreclosed by prece-          dent,  are superficially  compelling.   As the  court says,  "the          captain is the person most  likely to be trusted with the  knowl-          edge of the presence  of contraband, and is also  the most likely          leader of the criminal enterprise."   Slip op. at 15 n.6.   Thus,          for  the challenged evidence to be ruled excludable at the behest          of the  captain, but  not the  crew, may appear  unfair at  first          blush.    But these concerns  are illusory in the  context of the          appropriate Fourth  Amendment inquiry:   whether  each individual          crew member  demonstrated a legitimate expectation  of privacy in          the  invaded place or a proprietary or possessory interest in the          evidence seized.   The Fourth Amendment  exclusionary rule simply          is not  designed to  ensure "equitable"  outcomes, but rather  to          safeguard  expectations of  privacy that  society is  prepared to          recognize  as reasonable.15   To  that end,  the right  to invoke          the  exclusionary rule  is restricted  to individuals  who demon-          strate an unlawful governmental  intrusion upon an expectation of          privacy that society is prepared to recognize as reasonable.  See                                                                        ___          Rakas, supra; Alderman, supra; see also 4 Wayne R. LaFave, Search          _____  _____  ________  _____  ___ ____                    ______          &  Seizure,   11.3(i) at 361 (2d ed. 1987) ("[g]uilty persons, of          __________          course, are sometimes acquitted as a consequence of  the suppres-          sion [of unlawfully  seized evidence], but to conclude that still          other guilty persons must likewise be acquitted because joined in                                        ____________________          15  Of course, the limited role and authority of crew members may          at  times be relevant  to a "sufficiency of  the evidence"  chal-          lenge.  See,  e.g.. United States  v. Steuben, 850 F.2d  859, 869                  ___   ____  _____________     _______          (1st Cir. 1988);  United States  v. Bland, 653  F.2d 989,  996-97                            _____________     _____          (5th Cir. 1981), cert. denied, 454 U.S. 1055 (1981).                           _____ ______                                         -28-          crime  or trial  with the first  group is  to bestow  upon them a          'windfall  to which  they are  not justly  entitled.'") (citation          omitted).                    I respectfully dissent from the holding that the Fourth          Amendment rights of the defendant crew members were violated.                                         -29-
