JOHN J. O'SULLIVAN, Chief Magistrate Judge.
THIS MATTER came before the Court on the Joint Motion to Suppress Evidence (DE# 33, 9/6/19) filed by defendants Ruel Ellis and Jhenelle Lewis (collectively, "defendants"). This motion was referred to United States Magistrate Judge John J. O'Sullivan by the Honorable Ursula Ungaro, United States District Court Judge for the Southern District of Florida.
The defendants are charged by indictment in the Southern District of Florida with conspiracy to import cocaine in violation of Title 21, United States Code, Section 963 (Count I), importation of cocaine in violation of Title 21, United States Code, Section 952(a) (Count II), conspiracy to possess with the intent to distribute cocaine in violation of Title 21, United States Code, Section 846 (Count III) and possession with the intent to distribute cocaine in violation of Title 21, United States Code, Section 841(a)(1) (Count IV).
On September 6, 2019, the defendants filed a Joint Motion to Suppress Evidence (DE# 33, 9/6/19) (hereinafter "Motion"). The government filed its response on September 20, 2019.
On October 8, 2019, the undersigned held an evidentiary hearing on the instant motion. The undersigned admitted into evidence the Government's Exhibits 1 through 8 and the Defendants' Exhibits A and B. The government presented the testimony of United States Customs and Border Protection (hereinafter "CBP") Officer Fredy Hidalgo. The defendants did not call any witnesses.
This matter is ripe for adjudication.
CBP Officer Fredy Hidalgo has worked for the Department of Homeland Security for approximately 12 years. During the past, approximately four years, Officer Hidalgo has worked in the Passenger Analytical Unit. As part of his job, Officer Hidalgo has received specialized training in the field of narcotics trafficking. Officer Hidalgo has also been trained in systems access, vetting, targeting and interviewing techniques.
Officer Hidalgo's job duties include conducting routine cabin searches of suspected violators. Officer Hidalgo identifies suspected violators by reviewing ship manifests of crew members and passengers to identify individuals who may pose threats to the United States, including narcotics threats. He reviews information from various sources including intelligence analysis, trends and news articles to identify patterns used by suspected narcotics violators.
On June 15, 2019, the MSC Seaside cruise ship docked at the Port of Miami following a multi-day cruise. The MSC Seaside was coming from Nassau, Bahamas. Prior to that, the ship had docked in ports in Puerto Rico, St. Thomas and St. Martin. Each one of these places are countries or territories known for narcotics trafficking.
The defendants had booked cabin 14204 on the MSC Seaside. Officer Hidalgo selected cabin 14204 for a routine cabin search for a number of reasons.
Officer Hidalgo also noted that the defendants did not fit the profile of the average MSC passenger. The average MSC passenger was a European, approximately 55 years or older. The defendants were United States citizens who were approximately thirty-years old.
Additionally, the defendants both had criminal histories. Ms. Lewis had a 2017 arrest for marijuana possession. She had also been arrested four times in 2010, including one arrest for possession with intent to distribute a controlled substance. Mr. Ellis had a prior arrest for marijuana possession and simple assault in 2015 and a controlled substance arrest in 2009.
Officer Hidalgo also took into account the defendants' travel history. Mr. Ellis had traveled to Jamaica four times in 2018. Jamaica is a source country known for narcotics trafficking. Officer Hidalgo also noted that other than a prior, attempted trip to Jamaica,
Officer Hidalgo also considered the defendants' residences. Officer Hidalgo believed the fact that the defendants did not live together was a relevant factor. According to Officer Hidalgo, it was unusual for unmarried persons who did not live together to have late cruise bookings. Moreover, Officer Hidalgo determined that Paterson, New Jersey, where Ms. Lewis was residing, was a high crime area.
Officer Hidalgo took into account all of these factors in selecting cabin 14204 for inspection.
On the morning of June 15, 2019, Officer Hidalgo emailed the MSC security team and asked that any luggage pertaining to cabin 14204 be isolated.
An officer knocked on the door of the cabin. Ms. Lewis opened the door. The officers introduced themselves as CBP officers conducting routine inspections. None of the officers had their guns drawn. At that point, the officers detected the smell of marijuana emanating from the cabin.
Law enforcement officers asked Ms. Lewis how many people were in the cabin. Ms. Lewis responded that there were two people in the cabin. She opened the door further and law enforcement officers saw Mr. Ellis. Law enforcement officers instructed Ms. Lewis and Mr. Ellis to gather their travel documents and step outside of the cabin. Ms. Lewis and Mr. Ellis complied with these instructions. Law enforcement officers allowed Ms. Lewis and Mr. Ellis to return to the cabin to retrieve their money.
Once Ms. Lewis and Mr. Ellis were outside the cabin, law enforcement officers used a K-9 dog to search the cabin. The dog alerted to two backpacks and a purse as containing possible narcotics. After obtaining a positive alert, law enforcement officers searched the entire cabin.
A part of the key fob pad was snapped off. The officers did not intentionally remove a portion of the key fob pad. As the officers were leaving the cabin to take the defendants to secondary inspection, one of the officers' guns may have hit the key fob pad on the door, knocking part of the key fob pad off the door.
The government has no surveillance videos of the CBP officers' interactions with the defendants on the morning of June 15, 2019. Officer Hidalgo did not ask MSC security personnel for video outside cabin 14204 because he was not aware that there was a camera in the hallway across from cabin 14204.
The search in the instant case took place at the functional equivalent of the border.
Border searches are not subject to normal warrant requirements and probable cause standards.
Courts employ a two-step process in analyzing border searches. "The first step is to determine if the search was authorized by statute ... and, if so, the second step is to decide if the search was reasonable under the Fourth Amendment."
The government notes that "[g]eneral border searches, including secondary Customs searches, do not require any suspicion of illegal activity." Response at 4. The government therefore argues that no reasonable suspicion was required to search the defendants' cabin.
The government relies on
The defendants argue that
This Court should find that no reasonable suspicion was required to search a cruise ship passenger's cabin. The instant case is analogous to the Eleventh Circuit's decision in
The government's interest in protecting the public from smuggled narcotics is just as strong in the instant case as in
607 F.3d at 730. A passenger's cabin on a cruise ship can similarly be used as a means to transport into the United States narcotics or other contraband which pose a threat to national self-protection.
The defendants' privacy interest is the same or less compelling than a crew member's privacy interest in his or her cabin. The undersigned finds little distinction between a crew members' cabin and the cabin assigned to a passenger on a cruise ship for purposes of engaging in a Fourth Amendment balancing test. Arguably, a crew member would have a greater expectation of privacy in his or her cabin because that crew member resides in that cabin for a period of months, sometimes in excess of a year. Whereas a cruise ship passenger, generally uses his or her cabin temporarily for a period of days or weeks. Here, on the day of the search, the defendants were in the process of vacating their cabin because the cruise had ended.
In
For these reasons, the Court should conclude that a suspicionless search of a cruise passenger's cabin at the functional equivalent of the border does not violate the Fourth Amendment.
Alternatively, the government argues that CBP officers had reasonable suspicion to search the defendants' cabin.
A person may be briefly detained by law enforcement for investigative purposes only if the officer "has a reasonable suspicion supported by articulable facts" that the person has engaged in or is about to engage in criminal activity. The investigator must "be able to point to specific and articulate facts which, if taken together with rational inferences from these facts, reasonably warrant the intrusion."
The government has the burden of proving reasonable suspicion by a preponderance of the evidence.
In the instant case, the government has shown that the CBP officers had reasonable suspicion to search the defendants' cabin. At the outset, the undersigned notes that the CBP officers were not required to have reasonable suspicion in order to knock on the cabin door and initiate a conversation with Ms. Lewis. "A consensual encounter —a police-citizen exchange involving no coercion or detention—does not implicate the Fourth Amendment."
After Ms. Lewis opened the cabin door and the officers detected the scent of marijuana, the officers had reasonable suspicion (and/or probable cause) to search the cabin for drugs.
Even without the smell of marijuana, CBP officers had reasonable suspicion to search the defendants' cabin at the functional equivalent of the border. Prior to the search, CBP officers knew that the defendants had booked their cruise late, had visited numerous source countries on their cruise, Mr. Ellis had gone to Jamaica (a source country) four times in one year, both defendants had prior arrests for marijuana possession and Ms. Lewis had a prior arrest for possession with intent to distribute a controlled substance. Based on a totality of the circumstances, CBP officers had reasonable suspicion to search the defendants' cabin at the functional equivalent of the border.
Because CBP officers had reasonable suspicion in the instant case, their search of the defendants' cabin at the functional equivalent of the border did not violate the Fourth Amendment.
For the foregoing reasons, the undersigned respectfully RECOMMENDS that the Joint Motion to Suppress Evidence (DE# 33, 9/6/19) be
The parties shall have fourteen (14) days from the date of being served with a copy of this Report and Recommendation within which to file written objections, if any, with the Honorable Ursula Ungaro, United States District Judge. Any objections to this Report and Recommendation must be filed with a copy of the suppression hearing transcript. Failure to file objections timely shall bar the parties from a
RESPECTFULLY SUBMITTED.
To the extent the defendants are relying on the MSC security incident report to impeach Officer Hidalgo's credibility, the undersigned notes that the MSC security incident report is a summary of what MSC security personnel believed was communicated to them by CPB. The security incident report does not specifically reference Officer Hidalgo and does not identify the CPB officer(s) who provided this instruction. No emails or other communications between Officer Hidalgo and MSC security personnel have been introduced into evidence. The undersigned had an opportunity to observe Officer Hidalgo at the evidentiary hearing and finds him to be a credible witness.
The undersigned does not find this argument persuasive. In essence, the defendants are arguing that CBP officers could have used less intrusive means to conduct their investigation. The balancing test under the second step of the two-step test weighs the government's security interest against an individual's right to privacy. It does not ask the Court to consider whether the government could have conducted the search in a less intrusive manner. The Supreme "Court has repeatedly stated that reasonableness under the Fourth Amendment does not require employing the least intrusive means, because `[t]he logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers.'"
