United States v. James Eagon, George Ennis, Thomas Herrmann

Following a stipulated facts trial, appellants were found guilty of four counts of drug offenses in violation of 21 U.S.C. §§ 841 (a)(1), 846, 952(a) and 963. On this appeal they challenge an order denying their motion to suppress marijuana and certain documents seized as a result of a warrantless search and the introduction of those items into evidence. At issue is the right of the Coast Guard without warrant to board a vessel at night for safety and document inspection, pursuant to an administrative plan, without founded suspicion of a violation of regulations.

I.

On December 5, 1980 an operations order was issued by the Coast Guard Commander of the Twelfth Coast Guard District which set up a schedule of harbor blockades designating the dates, locations and officers to be involved. The order noted that “smuggling activity increases during the holiday season” and required that enforcement patrols be conducted looking to enforcement of document and safety regulations, apparently, pursuant to the Coast Guard regulation on marine document production, 46 C.F.R. § 67.73-1 (1980). The operation’s code name was “Merry Jane”, a slang term for marijuana.

The Monterey Group was directed…

concurring:

I believe that Judge Merrill’s opinion is in accord with our decisions in United States *366 v. Piner, 608 F.2d 358 (1979), and United States v. Watson, 678 F.2d 765 (9th Cir.), cert. denied, -U.S.-, 103 S.Ct. 451 , 74 L.Ed.2d 605 (1982). In Piner , we concluded that a stop after dark must be for cause and added the dictum that the boarding “must be conducted under administrative standards so drafted that the decision to search is not left to the sole discretion of the Coast Guard officer.” 608 F.2d at 361 . Here, we are confronted with an administrative order removing discretion.

It is contended that the document inspection might be considered a pretext, as one of the purposes of the administrative order as indicated by its code name of “Merry Jane” was an attempt to interdict the traffic of marijuana into the United States. That contention has been answered by Watson , which holds that even if a purpose of the boarding is to stop smuggling it is permissible if the stop and search had an “independent administrative justification, and did not exceed in scope what was permissible under that administrative justification.” 678 F.2d at 761 .

We should therefor look to…

707 F.2d 362 UNITED STATES of America, Plaintiff-Appellee, v. James EAGON, George Ennis, Thomas Herrmann, Defendants-Appellants. Nos. 82-1030, 82-1031 and 82-1083. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 12, 1982. Decided Nov. 22, 1982. Rehearing Denied June 3, 1983. George A. Sherinian, Santa Cruz, Cal., for Eagon. Daniel F. Cook, Asst. Federal Public Defender, San Jose, Cal., for Enis. Barney Elders, Santa Cruz, Cal., for Herrmann. Ledia Schoggen, Asst. U.S. Atty., San Jose, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before MERRILL and BOOCHEVER, Circuit Judges and SMITH * , District Judge. MERRILL, Circuit Judge: 1 Following a stipulated facts trial, appellants were found guilty of four counts of drug offenses in violation of 21 U.S.C. Secs. 841 (a)(1), 846, 952(a) and 963. On this appeal they challenge an order denying their motion to suppress marijuana and certain documents seized as a result of a warrantless search and the introduction of those items into evidence. At issue is the right of the Coast Guard without warrant to board a vessel at night for safety and document…