United States v. Smith ( 2001 )

REVISED DECEMBER 14, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-30100
_____________________
UNITED STATES OF AMERICA
Plaintiff–Appellant
v.
JESSE JAMES SMITH; KEISHA L. SMITH
Defendants-Appellees
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
November 14, 2001
Before KING, Chief Judge, and DUHÉ and BENAVIDES, Circuit Judges.
KING, Chief Judge:
Plaintiff–Appellant, the United States of America,
appeals the district court’s suppression of evidence supporting
drug charges brought against Defendants–Appellees Jesse James
Smith and Keisha L. Smith. For the following reasons, we REVERSE
the district court’s ruling granting Defendants’ motion to
suppress and REMAND for further proceedings.1
1
Although the motion to suppress was originally filed
only by Defendant–Appellee Jesse Smith, counsel for
Defendant–Appellee Keisha Smith advised the district court at the
I. Factual and Procedural History
Defendants–Appellees Jesse James Smith and Keisha L. Smith
(“the Smiths”) took a one-week cruise aboard the M/S Celebration
from the Port of New Orleans to several Caribbean destinations,
including Jamaica. This cruise, conducted by Carnival Cruise
Lines, began on September 17, 2000 and continued until September
24, 2000. In order to expedite the off-loading of hundreds of
passengers when cruise ships return to port, Carnival Cruise
Lines regularly makes passenger manifests available to the United
States Customs Service (“U.S. Customs”) once a ship is underway.
U.S. Customs searches the manifests for any indication that
narcotics smugglers are aboard.
In this case, U.S. Customs Inspector Mike Powell (“Inspector
Powell”) reviewed the passenger manifest for the M/S Celebration
and noticed that the Smiths had profiles typical of narcotics
smugglers. Jesse Smith had a prior conviction and was on parole
at the time.2 Keisha Smith had traveled by plane to Jamaica just
four months before the cruise. The Smiths paid cash for their
cruise tickets shortly before departing. Additionally, the
ship’s Caribbean destinations, particularly Jamaica, are known
start of the evidentiary hearing of her intention to join in the
motion.
2
When viewing the passenger manifest, the inspectors
surmised that Jesse Smith left the country in violation of his
parole but did not confirm this until later.
2
source and transit countries for narcotics.3 After discovering
these facts, Inspector Powell pre-selected the Smiths for further
investigation.
In the early hours of September 24, 2000, the final day of
the cruise, the M/S Celebration returned to New Orleans. Its
passengers had been instructed to leave their luggage outside
their rooms the night before and to vacate their rooms by 8:00
a.m. Inspector Powell and other inspectors boarded the ship at
6:00 a.m. The inspectors requested the records for the Smiths’
cabin from the ship’s purser’s office. The inspectors learned
that although Jesse Smith’s “sign and sail” account4 showed
frequent use until the ship left Jamaica, the account remained
inactive after that time, indicating to inspectors that the
Smiths remained in their room.5 Moreover, the Smiths placed a
call or calls costing $142.50 to a single number in Jamaica on
the day the ship arrived in Montego Bay.
3
The M/S Celebration also stopped in Grand Cayman and
Cozumel, Mexico.
4
Cruise companies commonly employ “sign and sail”
accounts to simplify the process by which passengers pay for
their drinks, souvenirs, and special activities during the
cruise. At the beginning of the cruise, passengers fund the
accounts with a cash deposit or a credit card and then charge
beverages and other expenses to the account during the voyage.
5
The record of Keisha Smith’s “sign and sail” account, if
it existed, was never viewed by the inspectors and is not in the
court record.
3
After obtaining this additional information from cruise
records, the inspectors located the Smiths’ cabin to conduct a
search. They knocked on the door and asked the Smiths to dress
and exit the cabin in order to allow a trained canine to search
the room for drugs.6 The dog first indicated the presence of
drugs on the bed and then in a locker, where inspectors found
four woven baskets. Coils containing 6.8 kilograms of cocaine
were woven into the baskets. The search took approximately two
or three minutes.
On October 19, 2000, the Smiths were charged with conspiracy
to import at least five kilograms of cocaine on board a vessel in
violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 963 and with
possession with the intent to distribute at least five kilograms
of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2. Jesse Smith pled not guilty to the charges. On November
13, 2000, Jesse Smith made a motion, joined by Keisha Smith, to
suppress all the evidence seized from the Smiths’ cruise cabin.
The Government argued only that reasonable suspicion existed to
support the search. After a hearing on the motion, the district
court found that the inspectors did not have reasonable suspicion
to support the search and granted the motion to suppress. United
States v. Smith, No. CRIM.A.00-339, 2000 WL 1838708, at *3 (E.D.
6
Neither party asserts that the Smiths consented to the
search of their cabin. Thus, we do not consider the issue.
4
La. Dec. 13, 2000). The Government timely filed notice of
interlocutory appeal of the district court’s ruling.7
II. Standard of Review
In an appeal of a ruling on a motion to suppress, this court
reviews a district court’s factual findings for clear error and
its legal conclusions de novo. United States v. Jacquinot, 258
F.3d 423, 427 (5th Cir. 2001). Whether there was reasonable
suspicion for a search, a legal conclusion, is reviewed de novo.
Ornelas v. United States, 517 U.S. 690, 699 (1996). At all times
during this analysis, we view the evidence in a light most
favorable to the prevailing party, i.e., the
Defendants–Appellees. Jacquinot, 258 F.3d at 427. This court
reviews any arguments not raised before a district court at a
suppression hearing for plain error only. United States v.
Kelly, 961 F.2d 524, 528 (5th Cir. 1992).
7
Defendant–Appellee Keisha Smith has adopted on appeal
the arguments submitted by co-defendant and co–appellee Jesse
Smith.
5
III. The District Court’s Analysis
Generally, routine searches at U.S. borders, or the
functional equivalent of a border,8 are reasonable under the
Fourth Amendment and do not require a search warrant, probable
cause, or even an articulable suspicion. Cardenas, 9 F.3d at
1148; United States v. Montoya de Hernandez, 473 U.S. 531, 537
(1985). This court has held, however, that some extremely
intrusive border searches are not “routine” and must be
predicated upon reasonable suspicion of criminal activity. See,
e.g., United States v. Sandler, 644 F.2d 1163, 1166 (5th Cir.
1981) (noting that border strip searches are not “routine” and
require reasonable suspicion”). Citing a case from the Ninth
Circuit9 and a case from the Eastern District of Louisiana,10 the
district court found that “a search of a passenger’s cabin aboard
a ship is not routine given the intrusive nature of the search.”
Smith, 2000 WL 1838708, at *1. “Accordingly, even in the context
of a border search, the search of private living quarters on a
8
The first port where a ship docks after arriving from a
foreign country is the “functional equivalent” of the border.
United States v. Cardenas, 9 F.3d 1139, 1147-48 (5th Cir. 1993).
The parties do not dispute that the search of the Smiths’ cabin
was a border search.
9
United States v. Alfonso, 759 F.2d 728, 738 (9th Cir.
1985) (stating that “the search of private living quarters on a
ship should require something more than naked suspicion”).
10
United States v. Cunningham, Crim. A. No. 96-265, 1996
WL 665747, at *3 (E.D. La. Nov. 15, 1996) (concluding that the
proper standard to apply to a search of a cruise cabin at a
border is reasonable suspicion).
6
ship must at least be supported by reasonable suspicion of
criminal activity.” Id. The district court found that the U.S.
Customs inspectors lacked reasonable suspicion to support the
search of the Smiths’ cabin. Id. at *3.
On appeal, the Government has changed its tune and now
argues that because this is a routine border search, reasonable
suspicion is unnecessary. The Government failed to present this
argument to the district court. Under these circumstances, the
district court’s application of the reasonable suspicion standard
is subject to plain error review. Kelly, 961 F.2d at 528
(adopting the plain error standard when considering “an argument
that the Government failed to raise at a suppression hearing”).
This deferential standard of review dictates that before this
court can correct an error not raised at trial, there must be (1)
an “error,” (2) that is “plain,” (3) that “affect[s] substantial
rights,” and (4) that “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 732 (1993) (internal citations and
quotations omitted). While it may well be the case that applying
a reasonable suspicion standard to the search of the Smiths’
cabin at the functional equivalent of a border is plain error, we
need not decide the issue. Our determination that reasonable
suspicion existed in this case assures that the district court’s
error did not affect the Government’s substantial rights or the
fairness, integrity, or public reputation of judicial
7
proceedings. Thus, the search of the Smiths’ cabin was valid,
and the district court erred in suppressing the evidence seized
pursuant to that search.
IV. Reasonable Suspicion
Reasonable suspicion entails “some minimal level of
objective justification” that consists of “more than inchoate or
unparticularized suspicion or ‘hunch,’” but less than the level
of suspicion required for probable cause. United States v.
Sokolow, 490 U.S. 1, 7 (1989)(internal citations and quotations
omitted). Reasonable suspicion must be based upon “specific
facts which, taken together with rational inferences therefrom,
reasonably warrant an intrusion.” Cardenas, 9 F.3d at 1153. We
consider the totality of the circumstances in determining whether
reasonable suspicion existed at the time of the search. Id. at
1148.
In this case, U.S. Customs inspectors uncovered numerous
facts raising the suspicion that the Smiths were involved in
narcotics smuggling. First, the Smiths took a cruise bound for
Jamaica. At the suppression hearing, Inspector Powell testified
that Jamaica is a transit point for Colombian cocaine and heroin
bound for the United States. Inspector Powell also indicated
that Jamaica is a source country for “quite a bit” of marijuana
that comes into the United States. Second, Keisha Smith traveled
8
by air to Jamaica just four months before she took the cruise
that stopped in Jamaica. Inspector Powell noted that frequent
trips to the same source or transit country within a short period
of time are unusual. Third, although an “overwhelming majority”
of cruise passengers buy their tickets with some type of credit
instrument, the Smiths purchased their cruise tickets with cash.
Inspector Powell testified that such behavior is typical of
narcotics smugglers attempting to “hide a financial trail.”
Fourth, the Smiths bought their tickets just over two weeks
before the date of departure. Most cruise passengers purchase
tickets well in advance to allow for sufficient planning.
According to Inspector Powell, the Smiths’ “late or last-minute
booking” is consistent with narcotics smuggling because the
narcotics business “is a very fluid business – business plans
aren’t set firm.” Fifth, Jesse Smith had an “extensive criminal
history” that included “arrests and convictions” and was on
parole at the time of the cruise. Because foreign travel is
generally a violation of parole, Inspector Powell surmised that
Jesse Smith’s purpose in taking the cruise “must have been pretty
significant, which could have been narcotics smuggling.” Sixth,
just before docking in Montego Bay, the Smiths placed an unusual
“shoreside” call or calls costing $142.50 to a single number in
Jamaica. Inspector Powell felt the call was “very significant”
9
and was possibly “a contact with a provider of narcotics
shoreside.”11
Finally, Inspector Powell argues that the Smiths’ “sign and
sail” account raises suspicion. Before docking in Montego Bay,
Jamaica, the account “showed a consistent pattern of behavior”
similar to that of most cruise passengers. The “sign and sail”
account documented that the Smiths purchased drinks from various
bars throughout the ship at regular intervals. After leaving
Montego Bay, the Smiths’ “sign and sail” account showed no
further activity, suggesting to inspectors that the Smiths
remained in their room for the duration of the cruise. In cross-
examination, Inspector Powell admitted that after leaving Montego
Bay, the balance in the Smiths’ “sign and sail” account had
dropped to zero. The district court states that this fact is
“devastating to the Government’s position” because “the most
likely inference [is] that all activity ceased on the account
after September 20th because the deposited funds were exhausted.”
Smith, 2000 WL 1838708, *3. We must draw all reasonable
inferences in favor of the Smiths, and the zero balance on the
account reasonably explains the lack of further activity on that
account. Thus, the fact that account activity ceased after
leaving Jamaica does not raise any suspicion and does not support
our conclusion of reasonable suspicion. However, because the
11
The U.S. Customs inspectors never attempted to ascertain
to whom the call or calls were made.
10
inspectors would have had reasonable suspicion even if the Smiths
had continued normal use of the “sign and sail” account for the
duration of the cruise, we do not find the zero balance
“devastating to the Government’s position.”
In United States v. Sokolow, 490 U.S. 1 (1989), the Supreme
Court confronted facts similar to those in the instant case. In
Sokolow, the defendant and his accomplice made a round-trip
flight to Miami from Honolulu with tickets purchased the same day
of the flight. Id. at 4. After the defendant paid $2100 for the
two tickets from a roll of $20 bills, the airline ticket agent
notified the Honolulu Police Department of the suspicious
transaction. Id. Further investigation revealed that the
defendant traveled under a name that did not match the name under
which his telephone number was listed, that he stayed in Miami
for only forty-eight hours, that he appeared nervous during his
trip, and that he and his companion did not check any of their
luggage. Id. at 3. These facts, coupled with the knowledge that
Miami is a source city for illicit drugs, led Drug Enforcement
Administration agents to search the defendant’s luggage when he
returned to Honolulu. Id. The search yielded 1063 grams of
cocaine. Id. Reversing the Ninth Circuit, the Supreme Court
found that although “[a]ny one of these factors is not by itself
proof of any illegal conduct and is quite consistent with
innocent travel[,] . . . taken together they amount to reasonable
suspicion.” Id. at 9.
11
Several of the suspicious facts in this case mirror those
involved in Sokolow, including the Smiths’ last-minute purchase
of cruise tickets with cash and the notoriety of their Jamaican
destination as a narcotics source. Although each action taken by
the Smiths, standing alone, could be consistent with innocent
behavior, all of the actions taken together justified Inspector
Powell’s “very strong suspicion” that the Smiths were involved in
narcotics smuggling. Inspector Powell also based his conclusions
upon nine months of similar work. The Supreme Court has noted
that a trained investigator may be “able to perceive and
articulate meaning in given conduct which would be wholly
innocent to the untrained observer.” Brown v. Texas, 443 U.S.
47, 52 n.2 (1979). Thus, Inspector Powell’s experience with
locating narcotics on cruise ships further substantiates his
suspicions.
For these reasons, we find that the totality of the
circumstances in this case creates a reasonable suspicion of
criminal activity. Thus, assuming arguendo that reasonable
suspicion was required, the search of the Smiths’ cabin was
valid. The district court’s suppression of all evidence seized
pursuant to the search was erroneous.
12
V. Conclusion
13
We REVERSE the district court’s ruling granting the Smiths’
motion to suppress the evidence and REMAND for further
proceedings.
Benavides, Circuit Judge, concurs in the judgment only.
14