Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-4-2008

USA v. Whitted
Precedential or Non-Precedential: Precedential

Docket No. 06-3271




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                                    PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


                 No. 06-3271


      UNITED STATES OF AMERICA

                      v.

             JAMES WHITTED,
                                  Appellant


          Appeal from the District Court
               of the Virgin Islands
        (USVI Criminal No.04-cr-00176)
  District Judge: Honorable Raymond L. Finch


             Argued May 5, 2008

Before: RENDELL, FUENTES and CHAGARES,
              Circuit Judges.


          (Filed: September 4, 2008)
David J. Cattie, Esq. (ARGUED)
Ogletree, Deakins, Nash, Smoak & Stewart
1336 Beltjen Road, Suite 201
Charlotte Amalie, St Thomas
USVI, 00802
  Counsel for Appellant
   James Whitted

Kim L. Chisholm, Esq. (ARGUED)
Office of United States Attorney
U.S. Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas
USVI, 00802-6924
  Counsel for Appellant
   United States of America




                OPINION OF THE COURT




RENDELL, Circuit Judge.

       James Edward Whitted appeals his conviction by jury for
possession with intent to distribute a controlled substance in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and

                              2
importation of a controlled substance into the United States in
violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(A). He claims
that the District Court’s failure to suppress evidence found by
customs officers during a border search of his cruise ship cabin
was error and merits reversal of his conviction.

       In order to resolve this appeal, we must answer a
question of first impression: whether the Fourth Amendment
requires any level of suspicion to justify a border search of a
passenger cabin aboard a cruise liner arriving in the United
States from a foreign port. For the reasons that follow, we
believe that it does and that reasonable suspicion is the
appropriate standard. In the present case, we conclude the
reasonable suspicion standard is satisfied and, accordingly, will
affirm Whitted’s conviction.

              I. Facts and Procedural History

       On the morning of September 25, 2004, the Adventure of
the Seas cruise ship, which can carry up to 3,838 passengers and
1,185 crew, arrived from the foreign port of St. Maarten and
docked in St. Thomas, United States Virgin Islands. Prior to the
ship’s arrival, United States Customs and Border Protection
officers gathered to prepare to board the ship and conduct
enforcement actions. Canine Enforcement Officer Ralph Dasant
was on duty that morning, and, after retrieving his drug-sniffing
dog from its kennel, he used the Treasury Enforcement
Communications System (“TECS”), a computerized database,

                               3
to access the list of vessels arriving from a foreign port. He then
used the database to access the manifest of crew and passengers
aboard the Adventure of the Seas. Based on TECS information
generated through this search, he selected approximately ten of
the ship’s staterooms (out of a total of 1,557) to be looked at
upon boarding the ship.

        As is relevant here, TECS showed a “one-day lookout”
for James Edward Whitted. App. 45. Dasant explained that a
“lookout” was “a message that comes down in reference to
either a crew member or a passenger on board a vessel, where
we may have to take a look at that individual, being that it could
be for drugs, it could be for a warrant or something of that
nature.” App. 45-46. Based on the one-day lookout, Dasant
conducted further inquiries in TECS and discovered that
Whitted’s ticket had been purchased at the last minute. The
system also indicated that Whitted had traveled to other drug
source countries in the Caribbean and South America, including
Colombia, Venezuela, and St. Maarten, and had a criminal
record. Based on this information from the TECS database,
Whitted’s cabin was chosen for inspection.

       A team of customs officers, including Dasant and the
drug-sniffing dog, boarded the ship and proceeded directly to
the chief of security of the ship. Together, they went to the deck
of the ship where Whitted’s cabin was located. After the
officers knocked on the door to the cabin and ascertained that
Whitted was not there, the chief of security unlocked the door

                                4
and the officers began to prepare the room for canine screening.1
The dog did not alert in the hallway or at the door to the cabin.
However, immediately after the cabin was prepped, the dog
bolted into the room without being given a command and alerted
to a bag. Dasant called him off and indicated the bag to the
other officers. Customs officers Gail Fraser and Norman
Ramirez then entered the room and searched through the bag,
where they found “ladies’ shoes, men’s sandals, perfume bottles
and a shaving cream container.” App. 91. After ascertaining
from the chief of security that no woman was assigned to the
room and noting that the shaving cream container seemed
strange, they set aside those items found in the bag for further
examination. The chief of security offered them the use of the
ship’s x-ray machine. While x-raying the items, officers Fraser
and Gloria Lambert noticed what appeared to be “pebbles”
inside.

       In the interim, Whitted returned to the cabin. Officer
Ramirez took an oral declaration from Whitted, asking if he
stayed in that cabin, whether the bags in the cabin belonged to
him, and if any other passenger shared the cabin; Whitted
acknowledged that it was his cabin and bag and that he was


    1
     These preparations consisted of ensuring that no sharp
objects, food, or anything else that might harm or distract the
dog were in the cabin, moving bags from under the bed into the
center of the room, and pressing the surface of the bags to expel
any air inside. No bags were opened at this time.

                               5
traveling alone. After Fraser and Lambert returned from the
x-ray machine, the officers entered the cabin with Whitted.
Special Agent Louis Penn, Jr. subsequently arrived, and he and
the customs officers probed the “pebbles” and discovered a
white, powdery substance, which field-tested positive for heroin.
Whitted was arrested and later charged with possession with
intent to distribute a controlled substance and importation of a
controlled substance into the United States.

        Before trial, Whitted moved to suppress the drugs seized
from his cruise ship cabin. Dasant, Lambert, and Penn testified
at the suppression hearing before the District Court. In addition
to the facts recounted above, Penn testified that, following
Whitted’s arrest, he had confirmed that Whitted had two prior
convictions in North Carolina for heroin possession and sale.
He also stated that he had verified the reason for the TECS
lookout with San Juan officials and they had placed the lookout
on TECS based on an outbound survey of Whitted in San Juan
and his last-minute purchase of the ticket for cruise ship travel.

        At the hearing, the parties made substantially the same
arguments they do now. Whitted argued that he had a high
expectation of privacy in the ship cabin, as his dwelling, such
that the customs officers were required to have reasonable
suspicion in order to search it. Here, he claimed, the facts
available were insufficient to create reasonable suspicion that he
was involved in criminal activity. The government contended
that the search was a “routine” border search, focusing on the

                                6
fact that it was performed regularly by customs officers rather
than on its intrusiveness or the privacy interest at stake. In the
alternative, it urged, the TECS information established
reasonable suspicion.

        On October 17, 2005, assuming, without deciding, that
reasonable suspicion was required for the search of Whitted’s
cabin, the District Court found the facts as a whole provided
reasonable suspicion and, therefore, denied Whitted’s motion to
suppress. The case then proceeded to trial and conviction on
both counts. Whitted now appeals his conviction on the grounds
that the District Court improperly denied his motion to suppress.

       We have jurisdiction over Whitted’s appeal pursuant to
28 U.S.C. § 1291. We review the denial of a motion to suppress
for clear error as to the factual findings and exercise plenary
review over the application of law to those facts. United States
v. Perez, 

, 336 (3d Cir. 2002).



                         II. Discussion

       The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const.
amend. IV. Whether a search is reasonable will depend upon its
nature and all of the circumstances surrounding it, United States
v. Montoya de Hernandez, 

, 537 (1985), but, as a

                                7
general matter, warrantless searches are unreasonable. See Cady
v. Dombrowski, 

, 439 (1973).

       Searches conducted at the nation’s borders, however,
represent a well-established and long-standing exception to the
warrant requirement. United States v. Ramsey, 

,
619 (1977); see also United States v. Flores-Montano, 

, 152-53 (2004). The exception applies not only at the
physical boundaries of the United States, but also at the “the
functional equivalent” of a border, Almeida-Sanchez v. United
States, 

, 272-73 (1973), including the first port
where a ship docks after arriving from a foreign country, United
States v. Smith, 

, 633 n.8 (5th Cir. 2001). The
search here, conducted as the Adventure of the Seas arrived in
St. Thomas from St. Maarten, was therefore a border search.



        Provided that a border search is routine, it may be
conducted, not just without a warrant, but without probable
cause, reasonable suspicion, or any suspicion of wrongdoing.
Montoya de 

; see also United States
v. Glasser, 

, 1201 (3d Cir. 1985). This is because
the expectation of privacy is “less at the border than in the
interior” and “the Fourth Amendment balance between the
interests of the Government and the privacy right of the
individual is . . . struck much more favorably to the
Government.” United States v. Hyde, 

, 119-20
(3d Cir. 1994). Even at the border, however, an individual is

                               8
entitled to be free from unreasonable search and seizure and his
or her privacy interests must be balanced against the sovereign’s
interests. 

searches, classified as
“nonroutine,” require reasonable suspicion of wrongdoing to
pass constitutional muster. Montoya de 

. Border searches thus fall into two categories: “routine
searches that require no suspicion and nonroutine searches that
require reasonable suspicion.” United States v. Bradley, 

, 204 n.4 (3d Cir. 2002).

       The question here, therefore, is not whether the customs
officers were required to have a warrant or probable cause in
order to search Whitted’s private cabin, but, rather, whether
reasonable suspicion was necessary. The parties agree that no
suspicion is required in order for a customs officer to board and
search the cruise ship as part of a routine border search. They
disagree, however, as to whether any Fourth Amendment
protection applies to a search of a private sleeping cabin aboard
a cruise ship.

        To answer this question, we must first decide whether the
border search at issue was routine or non-routine and, so doing,
set forth the correct standard required under the Fourth
Amendment. We will then turn to a determination of whether
this search was conducted in accordance with it.




                               9
A. Reasonable Suspicion and the Search of a Passenger
Cabin of a Cruise Ship

        To ascertain whether a border search can be classified as
routine, we must examine the degree to which it intrudes on a
traveler’s privacy. 

. As the Supreme
Court has held, “highly intrusive searches of the person” that
implicate the “dignity and privacy interests of the person being
searched” require reasonable suspicion. 

. Courts have focused on the privacy interest and the
intrusiveness and indignity of the search to distinguish between
routine and nonroutine searches. See United State v. Cardenas,

, 1148 n.3 (5th Cir. 1993) (observing that “lower
courts have generally classified routine searches as those which
do not seriously invade a traveler’s privacy”); United State v.
Vega-Barvo, 

, 1344-46 (11th Cir. 1984)
(evaluating intrusiveness and indignity of the search).
Accordingly, patdowns, frisks, luggage searches, and
automobile searches, involving neither a high expectation of
privacy nor a seriously invasive search, are routine,2 whereas
body cavity searches, strip searches, and x-ray examinations are
considered nonroutine by virtue of their significant intrusion on



  2
    See 

(patdowns); United States v.
Gonzalez-Rincon, 

, 864 (9th Cir. 1994) (luggage
searches and patdowns); 

(vehicle).

                               10
an individual’s privacy.3

        In the present case, Whitted argues that the search of a
cruise ship cabin is not a routine border search because the
Fourth Amendment’s primary purpose is the protection of
privacy in one’s home and the search of one’s home, by its
nature, is highly intrusive. He makes a compelling argument
that an individual’s expectation of privacy in a cabin of a ship is
no different from any other temporary place of abode. Because
the search of his living quarters aboard the cruise ship intruded
upon that most private of places–his home–he says it should be
considered non-routine. In response to Whitted’s arguments, the
government contends that the search of the cabin was a routine
border search and “submits that the border search of . . .
Whitted’s cabin should be analyzed in the same way as that of
a vehicle, as opposed to a person.” Appellee’s Br. 10 (citing
United States v. Martinez-Fuerte, 

, 561 (1976)).

       Neither this Court nor the Supreme Court has addressed
the issue of whether the search of a cabin of a cruise ship
sufficiently intrudes upon an individual’s privacy to render it
non-routine, so that reasonable suspicion of criminal activity is
required. Indeed, there is a surprising dearth of authority on the


   3
     See Montoya de 

(alimentary
canal search); 

x-rays); United
States v. Adekunle, 

, 987-88 (5th Cir. 1992) (strip
search).

                                11
matter.

       The only authority which the government cites for the
proposition that the search of a passenger’s cruise ship cabin
amounts to a routine border search is readily distinguishable
from the present case. See United States v. Brown, 

1317 (S.D. Fla. 2004). In Brown, the “routine” aspect of the
search was the use of “trained canines to detect narcotic odor
from the hallways of newly-arrived cruise ships in Key West.”

at 1320. The search of Brown’s cabin occurred
only after the drug-sniffing dog had alerted to the presence of
drugs in the cabin while still in the hallway.4 While the court
stated that the search was not distinguishable from a routine
border search, clearly it was referring to the use of the dogs to
“search” the ship’s hallways, not the search of the cabin once
there was reasonable suspicion. 

& n.2.

      Existing caselaw counsels in favor of the approach urged
by Whitted. In the case most clearly on point, the United States
Court of Appeals for the Ninth Circuit concluded that “the


  4
    Here, by contrast, the dog did not alert until after the cabin
was opened and prepared for inspection. The dog’s alerting in
Whitted’s case, therefore, cannot establish reasonable suspicion
for the search. The routine search in Brown, done without
reasonable suspicion, was of the ship’s hallways–public space;
the search of Brown’s cabin was done only after there was
reasonable suspicion (or even probable cause) to search.

                               12
search of private living quarters on a ship should require
something more than naked suspicion.” United States v.
Alfonso, 

, 738 (9th Cir. 1985). There, the customs
officers had searched a cabin on a ship which had arrived from
Colombia. The defendant argued that “even if the search [were]
deemed a proper border search, the search of his private living
quarters on the ship was unreasonable under the Fourth
Amendment.” 

Although the court found no cases
that were directly on point,5 it reasoned that “[o]bviously, a
search of the private living quarters of a ship is more intrusive
than a search of other areas. . . . The private living quarters are
at least analogous to a private dwelling.” 

It then
went on to conclude that the information known to the officers
provided reasonable suspicion to justify the search. 

       Other courts have reached similar conclusions. See State
v. Logo, 

(La. App. 4 Cir. 2001) (holding that
customs officers need reasonable suspicion to conduct a border
search of the cabin of a passenger on a cruise ship). At least one
United States district court has also required reasonable
suspicion. United States v. Cunningham, No. 98-265, 

(E.D. La. Nov. 15, 1996). In that case, as here, a
customs agent searched a passenger’s cabin without consent, a


  

(citing United States v. Williams, 

(5th Cir. 1980) (en banc), and United States v. Piner, 

, 361-64 (9th Cir. 1979) (Kennedy, J., dissenting)).

                                13
warrant, or probable cause. A drug dog alerted to the presence
of drugs in the cabin and items in the room were subsequently
found to contain drugs. The court stated that “with respect to
searches of private areas of the vessel’s holds conducted for the
purpose of discovering contraband, the Fourth Amendment
requires reasonable suspicion, rather than probable cause as the
appropriate standard by which to judge the search’s lawfulness.”

(citing 

).

       Those courts to consider searches at sea 6 have also
uniformly recognized a greater expectation of privacy in private
dwelling areas of a ship than that in public areas.7 These cases


  6
    Although the authority to inspect at sea is more limited than
that of customs officers at the border, the reasoning in the cases
is helpful to an analysis of an individual’s expectation of privacy
in sleeping quarters aboard a ship. See United States v. Irving,

, 123 (2d Cir. 2006) (noting that searches of vessels
by customs officials are most analogous to border searches).
      7
    United States v. Eagon, 

, 366 (9th Cir. 1982)
(Boochever, J., concurring) (reasoning that when evaluating a
Coast Guard investigatory stop, “[w]e should . . . look to the
scope of the boarding activity under the particular circumstances
involved. Those living on their boats have a greater expectation
of privacy at night. . . . The boarding in this case, however,
involved no invasion of sleeping quarters.”); United States v.
Streifel, 

, 423 (2d Cir. 1981) (stating that, in the
context of the scope of searches of a ship, “one has a more has

                                14
routinely differentiate between those areas of a ship in which
little or no privacy can be expected and an individual’s living
and sleeping quarters.8 We similarly have suggested that a


a more legitimate expectation of privacy in one’s living quarters
than in other areas”); 

(Roney, J.,
concurring) (observing that constitutional protection against
unreasonable search and seizure “extends only to the areas in
which he has a legitimate expectation of privacy, including his
person, his cabin and his personal effects”); 

(Kennedy, J., dissenting) (saying “search of certain portions
of a vessel, such as the crew’s quarters on an ocean-going tanker
or a locked compartment on the bridge, may constitute
substantial invasions of privacy”); see also Warrantless
Searches and Seizures, 37 G EO. L.J. A NN. R EV. C RIM. P ROC. 39,
115 (2008) (“Because there is a reasonable expectation of
privacy in nonpublic areas of the vessel to which common
access is limited, warrantless searches that extend beyond the
scope of document and safety inspections require either
reasonable suspicion of criminal activity or probable cause,
depending on the intrusiveness of the search.”).
   8
    United States v. Cardona-Sandoval, 

, 21-23 (1st
Cir. 1993) (noting that, on a cruise vessel, “an individual’s
private space can meaningfully be distinguished from areas that
are public or common” and courts “should distinguish among
areas, treating some as not susceptible to a reasonable
expectation of privacy by a crew member”); United States v.
Lopez, 

, 635-36 (11th Cir. 1985) (gathering cases
and noting ship crew’s expectation of privacy in living and

                               15
sleeper compartment in a train might give rise to a higher
expectation of privacy than can be expected in more public or
common areas of the train. United States v. Kim, 

,
953 (3d Cir. 1994).

        We believe that these courts correctly recognize that the
search of private living quarters aboard a ship at the functional
equivalent of a border is a nonroutine border search and must be
supported by reasonable suspicion of criminal conduct. The
cruise ship cabin is both living quarters and located at the
national border. As a result, one principle underlying the
caselaw on border searches–namely, that “a port of entry is not
a traveler’s home,” United States v. Thirty-Seven Photographs,

(1971)–runs headlong into the “overriding respect
for the sanctity of the home that has been embedded in our
traditions since the origins of the Republic,” foremost in our
nation’s Fourth Amendment jurisprudence, Payton v. New York,

, 601 (1980) (quoting United States v. Watson, 

, 429 (1976) (Powell, J., concurring)). We find that
requiring reasonable suspicion strikes the proper balance



sleeping quarters); see also Comment, The Preservation of
Privacy Interests at Sea: The Need for Meaningful Scope Limits
on Custom Official and the Coast Guard’s Sweeping Authority
to Search Vessels, 29 T UL. M AR. L.J. 105, 113-117 (2004)
(observing that courts distinguish between public and private
areas of a ship in evaluating the expectation of privacy and the
permissibility of a search).

                               16
between the interests of the government and the privacy rights
of the individual. It also best comports with the case law, which
treats border searches permissively but gives special protection
to an individual’s dwelling place, however temporary. We,
therefore, join those courts that require reasonable suspicion to
search of a passenger cabin aboard a ship.

        As an initial matter, we have little trouble concluding that
a passenger cabin is more like an individual’s home than an
automobile. Whereas the “dignity and privacy interests of the
person” do not carry over to border searches of an automobile,

, the privacy interests of an
individual in his or her living quarters are significantly greater
and compel more rigorous Fourth Amendment protection. The
sanctity of private dwellings, whether temporary or permanent,
ordinarily gives rise to “the most stringent Fourth Amendment
protection.” United States v. Martinez-Fuerte, 

, 561
(1976); see also Minnesota v. Carter, 

, 89 (1998)
(acknowledging that “in some circumstances a person may have
a legitimate expectation of privacy in the house of someone
else”); Minnesota v. Olson, 

, 98-99 (1990) (holding
that overnight guests in the house of someone else have a
reasonable expectation of privacy); Stoner v. California, 

, 490 (1964) (hotel room); McDonald v. United States,

(1946) (living quarters in rooming house). We
believe that “one’s expectation of privacy in an automobile and
of freedom in its operation are significantly different from the
traditional expectation of privacy and freedom in one’s

                                17
residence,” 

, even where one’s
residence is aboard a ship.

        Individuals have a reasonable and high expectation of
privacy in their living and sleeping quarters aboard ships, even
at national borders, which merits Fourth Amendment protection.
As a passenger of a cruise liner, Whitted had a reasonable
expectation of privacy in his cabin: he excluded others from it,
used it as his home, and slept and conducted his daily life
therein. This expectation was eminently reasonable from an
objective standpoint. As the Supreme Court has recognized,

       [w]e are at our most vulnerable when we are
       asleep because we cannot monitor our own safety
       or the security of our belongings. It is for this
       reason that, although we may spend all day in
       public places, when we cannot sleep in our own
       home we seek out another private place to sleep,
       whether it be a hotel room, or the home of a
       friend.

. Just as individuals seek privacy in
hotel rooms or another’s home to sleep, cruise ship passengers
seek out privacy in their sleeping cabins and expect that they
will not be opened or intruded upon without consent.

       Mindful of the “centuries-old principle of respect for the
privacy of the home,” we, therefore, consider a search of a

                               18
individual’s living quarters among the most intrusive of
searches–invading as it does a place where the individual
expects not to be disturbed. Wilson v. Layne, 

, 610
(1999); see also Georgia v. Randolph, 

, 115
(2006); United States v. United States Dist. Court for Eastern
Dist. of Mich., 

, 313 (1972) (“[P]hysical entry of
the home is the chief evil against which the wording of the
Fourth Amendment is directed.”). Here, the search was highly
intrusive on the defendant’s privacy. Uninvited and in
Whitted’s absence, the officers entered his de facto home,
searched through his belongings, and subjected his private space
to inspection by a drug-sniffing dog.

        Because of the high expectation of privacy and level of
intrusiveness, the search cannot be considered “routine” and
must therefore be supported by reasonable suspicion of illegal
activity. Reasonable suspicion is not a high standard that will
prevent customs officers from detecting drug smugglers at our
borders. Rather, it sets a relatively low threshold that will
continue to permit the kind of cabin searches customs officers
currently conduct.9

B. Reasonable Suspicion Existed to Search the Defendant’s
Cabin


   9
     Customs officers can also search the bags and persons of
cruise ship passengers as they pass through customs inspection
at the border.

                              19
       Under the reasonable suspicion standard, customs
officers are required to have a “particularized and objective
basis” to suspect illegal activity in order to conduct a search.
United States v. Arvizu, 

, 273 (2002). The officers
must be able to articulate reasons that led to the search of the
cabin that are indicative of behavior in which most innocent
people do not engage. See Karnes v. Skrutski, 

, 493
(3d Cir. 1995). We consider the totality of the circumstances in
determining whether reasonable suspicion existed at the time of
the search. 

. Accordingly, although each
individual factor alone may be consistent with innocent
behavior, it is sufficient if together they “serve to eliminate a
substantial portion of innocent travelers. 

.

        In this case, numerous facts raised the suspicion that
Whitted was involved in drug smuggling. The vast majority of
these came from information in the TECS database. First,
Whitted took a cruise that traveled to drug source countries.
Second, Whitted had previously traveled to several known
narcotics source countries. Third, Whitted purchased his ticket
just prior to the ship’s date of departure and may have paid for
it in cash.10 As other courts have recognized, most cruise


   10
      We note that the use of cash to purchase the ticket was
asserted in the government’s brief regarding suppression and
seems to have been assumed by both counsel and the Court
during the suppression hearing. The appendix submitted to us,

                               20
passengers purchase tickets well in advance and with a credit
instrument. See United States v. Smith, 

, 634 (5th
Cir. 2001). Fourth, Whitted had a record of felony drug
convictions. Last, TECS indicated that authorities in San Juan,
Puerto Rico had found Whitted’s behavior suspicious and
entered a lookout for him into the TECS database. This was
significant because it could have indicated a warrant for his
arrest or other criminal wrongdoing. It was also the impetus for
querying the TECS database further and discovering other
factors that raised a suspicion of drug smuggling.

        The defendant argues that this information cannot
establish reasonable suspicion because its source was the TECS
computer database, unsubstantiated by other information. We
reject this contention. As a general matter, customs officers
should be able to rely on data provided by computer reports to
create reasonable suspicion for a search. If they cannot, their
hands would be tied until they either independently investigated
the individual or contacted each source for the report to confirm
its validity. Just as a customs officer is entitled to rely on
unconfirmed information relayed to him by his supervisor in
order to look out for and search an individual at the border,
United States v. Love, 

(S.D. Tex. 1976), so
too is a customs officer permitted to rely on TECS information
entered by other customs officials to create reasonable suspicion


however, does not contain further evidence of the method of
purchase.

                               21
for a search.11

        Whitted also argues that the customs officers engaged in
profiling, based on a “drug smuggling profile,” and cannot be
said to have had reasonable suspicion. This last argument is
entirely without merit. Whitted was selected for search not
because of his resemblance to a smuggling profile, but because
a one-day lookout specific to him had been entered into TECS.
There was never any drug smuggling profile in evidence or
relied on by the Court or the customs officers; the level of
suspicion was based on the specific relevant facts known to the
customs officers who searched Whitted’s cabin.12 As the


  11
     Whitted claims that this information should not have been
relied on as it was hearsay. Federal Rule of Evidence 104(a),
however, does not preclude the consideration of hearsay
evidence in a suppression hearing, and Whitted has not
presented any evidence that the TECS report in this case was
unreliable. By contrast to the cases cited by Whitted, this is not
a situation where the report shows only very old information of
dubious reliability. See Velasquez v. United States, No. CIV 00-
0036TUCGEE, 

(D. Ariz. Sept. 26, 2002).
Nor does Whitted seriously challenge most of the information
contained in the report.
  12
    Had a “drug smuggling profile” been in evidence, it would
not change our analysis. As the Supreme Court has stated, “[a]
court sitting to determine the existence of reasonable suspicion
must require the agent to articulate the factors leading to that

                               22
Supreme Court has instructed, “‘the relevant inquiry is not
whether particular conduct is ‘innocent’ or ‘guilty,’ but the
degree of suspicion that attaches to particular types of
noncriminal acts.’” 

(quoting Illinois v.
Gates, 

, 243-244, n.13 (1989)).

       Viewed in their entirety, the facts here support the
conclusion that the customs officers reasonably suspected
Whitted of criminal activity. In the present case, customs officer
Dasant found the information in TECS suspicious and chose to
search Whitted’s cabin based upon it. By drawing on his
particular expertise, he evaluated the information and drew
inferences that created reasonable suspicion of drug smuggling.

(permitting officers “to make inferences
from and deductions about the cumulative information available
to them that ‘might well elude an untrained person’”); see also
Brown v. Texas, 

, 52 n.2 (1979) (observing that a
trained investigator may be “able to perceive and articulate



conclusion, but the fact that these factors may be set forth in a
‘profile’ does not somehow detract from their evidentiary
significance as seen by a trained agent.” United States v.
Sokolow, 

, 10 (1989); see also 

(noting that, although suspects often are initially
approached because they fit a profile, “[i]t is not the profile . .
. but the factors which make up the profile which are crucial to
whether or not there is a reasonable suspicion”).


                                23
meaning in given conduct which would be wholly innocent to
the untrained observer”). His training and three years
experience as a canine enforcement officer doing similar work
allowed him to draw inferences from “objective facts,
meaningless to the untrained,” and substantiate his suspicions.
United States v. Cortez, 

, 419 (1981); see also

(finding reasonable suspicion on
similar facts where passengers had taken a cruise bound for a
drug source country and had traveled there before, had paid in
cash two weeks before the cruise, had placed a call to a
shoreside number, and one had a criminal record). Accordingly,
we conclude that the agents had reasonable suspicion to search
Whitted’s cabin and its contents, and did not run afoul of the
Fourth Amendment in the context of a nonroutine search at the
border.

                         Conclusion

      For the foregoing reasons, we will AFFIRM the denial of
the motion to suppress and uphold the jury’s verdict of
conviction.




                              24
CHAGARES, Circuit Judge, concurring.

       Although I agree with the ultimate result reached by my
colleagues in this case, I write separately because I would take
a different approach to reach this outcome. We all agree that,
even assuming the search of James Whitted’s cabin was non-
routine, reasonable suspicion existed to support the search. I
would affirm the District Court’s refusal to suppress on this
limited basis and thereby avoid the unnecessary resolution of a
constitutional issue of first impression.        I thus concur
respectfully with the judgment of the majority.

       “It is not the habit of the court to decide questions of a
constitutional nature unless absolutely necessary to a decision of
the case.” Burton v. United States, 

, 295 (1905).
Such restraint is well-established and recognized universally.
See, e.g., Mills v. Rogers, 

, 305 (1982) (“It is this
Court’s settled policy to avoid unnecessary decisions of
constitutional issues.”).

      The most often-cited enunciation of this concept comes
from Justice Brandeis’ famous concurrence in Ashwander v.
Tennessee Valley Authority, 

(1936), where he
summarized certain prudential principle that the Supreme Court
“developed . . . for its own governance in the cases confessedly
within its jurisdiction . . . .” 

(Brandeis, J.,
concurring). Under this “series of rules,” the Court “has
avoided passing upon a large part of all the constitutional

                               25
questions pressed upon it for decision.” 

rule was
that “[t]he Court will not anticipate a question of constitutional
law in advance of the necessity of deciding it . . . .” 

omitted). We have recognized that this
“Ashwander principle [] calls for the avoidance of ruling on
federal constitutional matters in advance of the necessity of
deciding them, to postpone judicial review where it would be
premature.” 13 Armstrong World Indus., Inc. v. Adams, 

    This prudential rule of constitutional interpretation is related
– but not identical – to the concept of constitutional avoidance.
The latter applies “[w]here an otherwise acceptable construction
of a statute would raise serious constitutional problems . . . .”
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. &
Const. Trades Council, 

, 575 (1988). In such cases,
“the Court will construe the statute to avoid such problems
unless such construction is plainly contrary to the intent of
Congress.” Id.; see also Arizonans for Official English v.
Arizona, 

, 78 (1997) (“Federal courts, when
confronting a challenge to the constitutionality of a federal
statute, follow a ‘cardinal principle’: They ‘will first ascertain
whether a construction . . . is fairly possible’ that will contain
the statute within constitutional bounds.”) (quoting 

) (Brandeis, J., concurring); United States v.
Grier, 

, 567 n.7 (3d Cir. 2007) (describing
concept); United States v. Ali, 

, 147 (3d Cir. 2007)
(stating that constitutional avoidance “applies to statutory
interpretation only where there is doubt whether an otherwise
acceptable construction of a statute would raise serious

                                26
405, 413 (3d Cir. 1992) (citation omitted).

       Powerful considerations, both theoretical and practical,
underpin this concept. See New Jersey Payphone Assoc. v.
Town of West New York, 

, 249 (3d Cir. 2002)
(Alito, J., concurring) (“The rationales behind the doctrine of
avoiding constitutional questions except as a last resort are
grounded in fundamental constitutional principles – the great
gravity and delicacy of judicial review, separation of powers, the
paramount importance of constitutional adjudication, the case or
controversy requirement, and principles of federalism.”)
(quotation marks omitted). Just a few examples will suffice
here. First, and most simply, the rule avoids wasting scarce
judicial resources. Second, “[t]he concern that unnecessary
decisions be avoided has its most important justification in the
prospect that unnecessary decisions may be wrong decisions.”
13 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 3531.3 (3d ed. 2000). Third, our adversary
system requires litigants to present – as squarely as possible –
the narrow and exact question to be decided. This is because
“specific facts stimulate more comprehensive and accurate
adjudication than the flights of fancy.            The concrete
circumstances presented by a plaintiff who has suffered actual
injury may illuminate the abstract issues, and help establish the
limits of the decision for future cases.” 

“[t]he
simplest theoretical perspective on standing draws directly from


constitutional problems”) (quotation marks omitted).

                               27
our tradition that unnecessary judicial decisions should be
avoided.” Id.; see also Elk Grove Unified Sch. Dist. v.
Newdow, 

, 11-12 (2004) (observing that standing
rules are consistent with the principles that commit courts to
pass on constitutional questions only when necessary).

        The prudential principle set forth by Justice Brandeis
applies here and should control our analysis of this case. The
parties do not dispute that the search of Whitted’s cabin took
place at a border. Therefore, the very best Whitted can hope for
is that the border search here is held to be “non-routine,” in
which case we would examine the Government’s search for
reasonable suspicion. See, e.g., United States v. Montoya de
Hernandez, 

, 541 (1985) (holding that “detention
of a traveler at the border, beyond the scope of a routine customs
search and inspection,” is constitutional only if supported by
reasonable suspicion); United States v. Rivas, 

, 367
(5th Cir. 1998) (holding that drilling into metal frame of trailer
when traveler was stopped at a checkpoint was a non-routine
search requiring reasonable suspicion); United States v. Mejia,

, 1381-82 (5th Cir. 1983) (holding that abdominal
x-ray of suspected drug courier required reasonable suspicion).

       My colleagues and I all agree that the totality of the
circumstances here did create reasonable suspicion that Whitted
was engaged in narcotics smuggling. He was traveling alone on
a cruise ship. That ship traveled to narcotics source countries.
Whitted had purchased his single ticket in cash, shortly before

                               28
the ship departed. He had two prior convictions for drug
trafficking. He had recently visited countries associated with
narcotics production. The authorities in Puerto Rico found his
behavior suspicious. All of this certainly amounts to a
“particularized and objective basis” to believe Whitted might be
smuggling drugs. United States v. Arvizu, 

, 273
(2002) (quotation marks omitted). The District Court analyzed
these facts correctly in denying Whitted’s suppression motion.

       Because we need not resolve a constitutional issue of first
impression to affirm this result, I would not reach the issue.
Instead, I would hold simply that, even assuming the necessity
of reasonable suspicion, Whitted’s appeal would fail
nonetheless.

_____________




                               29