                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-9-1998

United States v. Boynes
Precedential or Non-Precedential:

Docket 97-7490




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Recommended Citation
"United States v. Boynes" (1998). 1998 Decisions. Paper 155.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/155


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Filed July 9, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-7490

UNITED STATES OF AMERICA
       Appellant

v.

CLIFTON ASHLEY BOYNES, SR.;
INTER ISLAND BOAT SERVICES, INC.

On Appeal from the District Court
of the Virgin Islands
(D.C. Crim. No. 96-cr-00230)

Argued April 2, 1998

BEFORE: STAPLETON, COWEN and ALITO,
Circuit Judges

(Filed July 9, 1998)

       Howard P. Stewart, Esq. (Argued)
       Senior Litigation Counsel
       Environmental Crimes Section
       P.O. Box 23985
       Washington, D.C. 20026-3985

       Kim L. Chisholm
       Office of United States Attorney
       United States Courthouse
       5500 Veterans Building, Suite 260
       Charlotte Amalie, St. Thomas
       USVI, 00802-6924

        Counsel for Appellant
       United States of America
       Samuel H. Hall, Jr., Esq. (Argued)
       Birch, DeJongh & Hindels
       P.O. Box 1197
       Charlotte Amalie, St. Thomas
       USVI, 00804

        Counsel for Appellees
        Clifton A. Boynes, Sr.
        Inter Island Boat Services, Inc.

OPINION OF THE COURT

COWEN, Circuit Judge.

This appeal arises from the order of the District Court for
the District of the Virgin Islands granting the defendants'
motion to suppress evidence resulting from the Coast
Guard's warrantless search of the M/V Mona Queen in the
British Virgin Islands. The government contends that the
district court erred in suppressing the evidence obtained
from the warrantless search because, inter alia, a
warrantless search in a foreign country does not violate the
Fourth Amendment.

We conclude that the Coast Guard possessed probable
cause to search the Mona Queen and that no warrant was
required since searches of ships in general fall within the
exigent circumstances exception to the Fourth
Amendment's warrant requirement. As a result of the Coast
Guard satisfying the probable cause standard, we have no
need to ascertain whether the Fourth Amendment actually
applies to searches by U.S. law enforcement agents of U.S.
citizens' property in foreign countries, whether a lower
standard is required for such searches, and whether such
searches require a warrant. Accordingly, the evidence
obtained by the Coast Guard's warrantless search is
admissible. We will reverse the order of the district court
and remand for further proceedings.

I.

At the time of the events giving rise to this appeal, Clifton
Ashley Boynes, Sr. (Boynes), was captain of the M/V Mona

                               2
Queen and sole owner of Interisland Boat Services
(Interisland), which operates a ferry service within the U.S.
Virgin Islands under a U.S. Coast Guard certificate of
inspection. On the morning of February 1, 1995, Boynes
was at the Red Hook ferry dock preparing the Mona Queen
for its 6:30 a.m. run to Caneel Bay, St. John.

At approximately 6:30 a.m., two Coast Guard officers
patrolling Red Hook Harbor, Lt. Keith Janssen and BMC
Salvatore Piazza, observed a dark brown substanceflowing
from the Mona Queen's starboard-side overboard bilge
discharge fitting. Janssen took samples of the substance
from the discharge fitting and from the sheen of the Mona
Queen's wake, but the officers could not complete their
investigation at that time because their craft developed
engine trouble.

Later in the morning, Piazza sent a fax to Boynes stating
that the Coast Guard was investigating a pollution incident
involving the Mona Queen, and the fax included a federal
letter of interest. The fax instructed Boynes to bring the
Mona Queen to the Marine Safety Detachment Office in St.
Thomas at 1:00 p.m. that day. Three hours before the
scheduled inspection, Janssen and Piazza encountered the
Mona Queen at the Red Hook ferry dock and approached
Boynes, who acknowledged receiving the fax. The officers
requested permission from Boynes to board the Mona
Queen and inspect the engine room, and Boynes consented.
While inspecting the engine room, Janssen and Piazza
found approximately fifty gallons of oil on thefloor in the
front of the engine room measuring seven inches deep. The
officers also found a diesel oil leak on a fuel line. However,
they did not take a sample of the various leaking
substances since they lacked a sample jar. As a result of
the consensual search, Janssen revoked the Mona Queen's
certificate of inspection and ordered repair of the leaks and
removal of the fuel and oil. The officers also reminded
Boynes to bring his vessel to the Marine Safety Detachment
Office in St. Thomas at 1:00 p.m. that day.

Boynes arrived at the Marine Safety Detachment Office at
1:20 p.m. without the Mona Queen, which he said was in
Nanny Cay, a shipyard in the British Virgin Islands. Piazza
read Boynes his Miranda rights, and, subsequently, Boynes

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signed a form waiving his Miranda rights. Boynes then gave
a voluntary statement regarding the pollution incident.
Boynes speculated that someone in the vessel wheelhouse
accidentally flipped the switch controlling the bilge pump.
Upon hearing that the Mona Queen was under repair in the
British Virgin Islands, the officers were concerned that
repairs on the boat would be accomplished before they had
the opportunity to take samples of the leaking substances.
The officers instructed Boynes to discontinue further repair
of the Mona Queen and to meet them at the boat the
following morning so that they could gather evidence and
photograph the vessel.

On the morning of February 2, 1995, Piazza and his
supervisor, Lt. Scruggs, arrived at the location of the Mona
Queen at drydock in the Nanny Cay shipyard in the British
Virgin Islands. Boynes, however, was not at the appointed
meeting-place, nor was a representative of Interisland. The
officers boarded the Mona Queen and proceeded to gather
evidence from the vessel. They did not have a search
warrant. Scruggs videotaped and Piazza photographed the
interior and exterior of the Mona Queen including the bilge
system, and they tried to simulate a passenger accidentally
flipping the bilge control switch as Boynes had described.
The officers also observed oil around the starboard
discharge hose, and they gathered a sample of the oily
residue in the bilge.

Boynes and Interisland were indicted in the District
Court for the District of the Virgin Islands for knowingly
discharging oil into U.S. waters in violation of 33 U.S.C.
SS 1319(c)(2)(A), 1321(b)(3) (1994). Theyfiled a joint motion
to suppress Boynes's statements at the Marine Safety
Detachment Office and the evidence collected by the officers
during their warrantless search of the Mona Queen.
Following an evidentiary hearing, the district court entered
an order admitting Boynes's statements but suppressing
the evidence collected during the warrantless search in the
British Virgin Islands. This appeal followed.

II.

Our jurisdiction arises pursuant to 18 U.S.C. S 3731
(1994). We will affirm the district court's factual

                               4
determinations unless clearly erroneous. We exercise
plenary review over the district court's interpretation of
legal principles and its application of those legal principles
to the facts of the case. See Universal Minerals, Inc. v. C.A.
Hughes & Co., 669 F.2d 98, 103 (3d Cir. 1981).

III.

While the search of the Mona Queen occurred in the
British Virgin Islands, the government does not contest the
applicability of the Fourth Amendment but rather assumes
that the Fourth Amendment is applicable to searches by
U.S. law enforcement officials of U.S. citizens in foreign
countries. However, we have no need to address the
applicability of the Fourth Amendment since we determine
that the Coast Guard possessed probable cause to search
the Mona Queen and thus would satisfy the Fourth
Amendment if it applies. Furthermore, even if the Fourth
Amendment applies, the Coast Guard would not have
needed a warrant due to exigent circumstances arising from
the ship's mobility.1

A.

The government does not argue that the Fourth
Amendment2 is inapplicable to searches of U.S. citizens in
foreign countries by U.S. law enforcement officials.3
_________________________________________________________________

1. Since the Coast Guard possessed probable cause prior to searching
the Mona Queen in the British Virgin Islands, we have no need to
ascertain the applicability of 14 U.S.C. S 89(a) (1994), which permits a
warrantless search of vessels based upon the less stringent standard of
reasonable suspicion.

2. The Fourth Amendment reads:

        The right of the people to be secure in their persons, houses,
       papers, and effects, against unreasonable searches and seizures,
       shall not be violated, and no Warrants shall issue, but upon
       probable cause, supported by Oath or affirmation, and particularly
       describing the place to be searched, and the persons or things to
be
       seized.

U.S. Const. amend. IV.

3. In Reid v. Covert, 354 U.S. 1, 77 S. Ct. 1222 (1957), a plurality
announced the principle that the Bill of Rights applies to U.S. citizens
in

                                 5
Assuming arguendo that the Fourth Amendment does apply
and that the Fourth Amendment requires probable cause
for such searches, the Coast Guard officers certainly
possessed probable cause to search the Mona Queen while
it underwent repair in the British Virgin Islands. We have
defined probable cause as follows:

       Probable cause is "defined in terms of facts and
       circumstances `sufficient to warrant a prudent man in
       believing that the [suspect] had committed or was
       committing an offense.' " Gerstein v. Pugh, 420 U.S.
       103, 111, 95 S. Ct. 854, 862, 43 L. Ed.2d 54 (1975)
       (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223,
       225-26, 13 L. Ed.2d 142 (1964)). This standard is
       meant to " `safeguard citizens from rash and
       unreasonable interferences with privacy' " and to
       provide "leeway for enforcing the law in the
       community's protection." Id. at 112, 95 S. Ct. at 862
_________________________________________________________________

foreign countries. Id. at 5-6, 77 S. Ct. at 1225. Two other justices
"resolved the case on much narrower grounds than the plurality and
declined even to hold that United States citizens were entitled to the
full
range of constitutional protections in all overseas criminal
prosecutions."
United States v. Verdugo-Urquidez, 494 U.S. 259, 270, 110 S. Ct. 1056,
1063 (1990). Verdugo dealt with the search of a Mexican citizen's
residence in Mexico, and the Supreme Court, in the course of its
analysis, noted that Reid's holding only recognizes the Fifth and Sixth
Amendments, not the Fourth, as applying to U.S. citizens in foreign
countries. However, two of the six justices in the Verdugo majority
coalition did not join the other four justices' reasoning completely.
Justice Stevens authored a concurrence in which he stated that he did
not agree with the "sweeping" nature of the opinion. Verdugo, 494 U.S.
at 279, 110 S. Ct. at 1068 (Stevens, J., concurring) ("I do not believe
the
Warrant Clause has any application to searches of noncitizens' homes in
foreign jurisdictions" (emphasis added)). Justice Kennedy joined the
majority but also authored a concurrence to clarify his views, and in that
concurrence he stated, "The rights of a citizen, as to whom the United
States has continuing obligations, are not presented by this case." Id. at
278, 110 S. Ct. at 1068 (Kennedy, J., concurring). As a result, the
Supreme Court's Verdugo decision cannot be interpreted to suspend the
warrant requirement nor to enunciate a standard lower than probable
cause for searches by U.S. law enforcement officials of U.S. citizens'
property abroad.

                                6
       (quoting Brinegar v. United States, 338 U.S. 160, 176,
       69 S. Ct. 1302, 1311, 93 L. Ed. 1879 (1949)).

Sharrar v. Felsing, 128 F.3d 810, 817-18 (3d. Cir. 1997).
Here, the Coast Guard officers witnessed the discharge of a
dark substance from the Mona Queen, and a subsequent
consensual search of the engine room revealed an overflow
of oil and a leak in a fuel line. Accordingly, the Coast Guard
officers reasonably believed that another search of the
Mona Queen would result in the collection of further
evidence that the Mona Queen's bilge discharge violated
American environmental statutes. In sum, the Coast Guard
officers had probable cause to search the Mona Queen in
the British Virgin Islands. The existence of probable cause
makes unnecessary our need to ascertain whether the
Fourth Amendment applies to searches of U.S. citizen's
property in foreign countries by U.S. law enforcement
officials and whether the probable cause standard, or some
lower standard, governs such cases. Cf. United States v.
Wright-Barker, 784 F.2d 161, 176 n.14 (3d Cir. 1986) (the
court "need not decide whether any lesser standard is
constitutionally permissible" because law enforcement
officials satisfied a more stringent standard when justifying
their search of a ship).

B.

Assuming arguendo that the Fourth Amendment does
govern searches of U.S. citizens in foreign countries by U.S.
law enforcement officials, we have no need to ascertain
whether a warrant is required in such circumstances 4
since, in general Fourth Amendment jurisprudence,
searches of vessels fall within the exigent circumstances
exception to the warrant requirement. In Carroll v. United
States, 267 U.S. 132, 45 S. Ct. 280 (1925), the Supreme
_________________________________________________________________

4. The government argues that considerations of practicality should lead
us to conclude that the warrant requirement is inapplicable to searches
of U.S. citizens' property in foreign countries by U.S. law enforcement
officials. Specifically, the government argues that Federal Rule of
Criminal Procedure 41(a), which governs the issuance of warrants, does
not provide for searches in foreign countries. We do not rule on the
merits of this argument.

                               7
Court held that, "practically since the beginning of the
government," a warrant has not been required for searches
of ships and automobiles "because the vehicle can be
quickly moved out of the locality or jurisdiction in which
the warrant must be sought." Id. at 153, 45 S. Ct. at 285;
see Chambers v. Maroney, 399 U.S. 42, 46-52, 90 S. Ct.
1975, 1978-81 (1970) (explicating the automobile exception
and collecting cases). The seaworthiness of the Mona
Queen gave rise to the risk of flight, meaning that the Coast
Guard officers were justified by exigent circumstances in
conducting a warrantless search of the vessel. See 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. Weinrich, 586 F.2d 481, 492-93 (5th Cir. 1978)
(the "automobile exception" justifies not requiring a warrant
for searches of ships); 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).

IV.

For the foregoing reasons, we will reverse the August 20,
1997, order of the district court suppressing evidence from
the Coast Guard's search of the Mona Queen in the British
Virgin Islands. 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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