Opinion
No. 85-2050.
December 9, 1986.
Appeal from the Circuit Court, Dade County, Michael Salmon, J.
Jim Smith, Atty. Gen. and Jack B. Ludin and Steven Scott, Asst. Attys. Gen., for appellant.
William H. Thomas, Miami, for appellee.
Before SCHWARTZ, C.J., and HUBBART and JORGENSON, JJ.
The appellee Torres was the operator of a speedboat which was seen entering United States waters from near Bimini by Florida marine patrolmen. They boarded and inspected the vessel, later gave Torres a "ticket" for a minor equipment violation, and, with his consent, escorted the boat to a gas dock at Haulover Beach in Dade County. While still at sea, the Florida officers "called customs" but, because of the press of other business, a customs agent did not arrive for some time after the vessel had been tied up at Haulover. Although the border search of the vessel which was thereafter conducted by the customs agent was concededly valid, 19 U.S.C. §§ 1581(a), 1582 (1985); Morales v. State, 407 So.2d 321, 327-28 (Fla. 3d DCA 1981), the trial court suppressed the 300 lbs. of marijuana it yielded on the ground that the Florida police had improperly "detained" the vessel for an unreasonably long period awaiting customs.
Our disposition makes it unnecessary to determine if we agree with the decisions that, since Torres operated but did not own the boat, he had no legitimate expectation of privacy in the concealed compartment where the cannabis was found and thus could not challenge even an unlawful search of that area. See United States v. Lopez, 761 F.2d 632 (11th Cir. 1985); United States v. Sarda Villa, 760 F.2d 1232 (11th Cir. 1985).
The appellee's primary reliance, which is on United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) and its progeny, is totally misplaced. Place concerns only an unauthorizedly lengthy restriction upon the freedom of movement of the individual defendant either personally or by retention of his personal effects. In this case, whether or not Torres himself was improperly held at the scene — which we do not decide — is totally irrelevant to the only issue before us, the propriety of the search of the vessel. See Zukor v. State, 488 So.2d 601, 606 n. 9 (Fla. 3d DCA 1986) (citing United States v. Martell, 654 F.2d 1356 (9th Cir. 1981), cert. denied, 463 U.S. 1213, 103 S.Ct. 3551, 77 L.Ed.2d 1397 (1983), holding that too lengthy detention of defendant irrelevant to propriety of search of luggage based on probable cause).
We reverse. It is clear that Torres, as the operator of a vessel which entered the United States after crossing an international border, was statutorily obliged himself not merely to report his arrival to the customs service, 19 U.S.C. § 1459 (1985), but to present the cargo for the agent's inspection, 19 U.S.C. § 1460 (1985); moreover, the vessel could not be unloaded without the agent's express permission, 19 U.S.C. § 1461 (1985). Obviously, neither of the latter events can occur until the agent is present, however long it takes him to get there. Thus, neither Torres nor anyone else could legally do anything with respect to the boat which was in any way different from what actually occurred; the vessel could not be moved nor its contents disposed of until customs reached the scene. Since no protectable "rights" as to the subject of the search were therefore infringed upon or deprived by the Florida officers (and it is admitted that the search itself was appropriate), the cannabis should not have been suppressed.
§ 1459. Contiguous countries; report and manifest
§ 1460. Penalties for failure to report or file manifest
§ 1461. Inspection of merchandise and baggage
Even if, contrary to this analysis, there were some restriction of a constitutionally protected right or interest in the movement or contents of the vessel, we would likely not hold that the delay allegedly caused by the state officers was "unreasonable" and therefore constitutionally impermissible. Thus, it has been expressly held that border stops of one hour or more even of individuals effected by local police to await the arrival of customs officers are valid. United States v. Lavado, 750 F.2d 1527 (11th Cir. 1985), cert. denied, ___ U.S. ___, 106 S.Ct. 789, 88 L.Ed.2d 768 (1986); see United States v. Moore, 638 F.2d 1171 (9th Cir. 1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); see also United States v. Mosquera-Ramirez, 729 F.2d 1352 (11th Cir. 1984) (twelve hour detention of internal drug smuggler until nature revealed what an x-ray would have shown not unreasonable); United States v. Montoya De Hernandez 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (almost sixteen hour detention of traveler at the border awaiting defecation not unreasonably long); United States v. Henao-Castano, 729 F.2d 1364 (11th Cir. 1984) (four hour detention of internal contraband carrier awaiting excretion not unreasonable), cert. denied, ___ U.S. ___, 105 S.Ct. 3552, 87 L.Ed.2d 674 (1985).
As to the present case — which concerns a boat, not a person — we find thoroughly analogous the recognized authority of police to maintain surveillance over or restrict the movement of an automobile, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), or to "freeze" a dwelling or other structure, Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984); State v. Riley, 462 So.2d 800 (Fla. 1984), awaiting the arrival of a warrant which permits the search of the vehicle or premises in question. Under our law, a customs agent at the border is the functional equivalent of a search warrant.
Reversed.