United States v. Cardona-Sandoval

No. 92-1385, No. 92-1386, No. 92-1387

1993 | Cited 0 times | First Circuit | July 1, 1993

TORRUELLA, Circuit Judge. This appeal involves the validity of a search of a vessel. Appellants Joaquin Cardona-Sandoval, Alejandro Rojano-Rangel, and Jorge Gomez-Olarte appeal their convictions of possessing cocaine with intent to distribute in violation of 46 U.S.C. § 1903(a), (b)(1), and (f). For the reasons that follow, we reverse the convictions.

I

The facts are set forth in the light most favorable to the government. Appellants Cardona-Sandoval (the captain), Rojano-Rangel and Gomez-Olarte (the crew),1 were on board a forty-three foot sports-fisherman, Florida registration Number "FL 8304 EM"2 allegedly on route from Colombia, South America to St. Maarten. All appellants are Colombian nationals.

On February 25, 1990, they were intercepted by the U.S.S. BIDDLE, a Navy destroyer. The U.S.S. BIDDLE was charged with boarding northbound vessels of less than four hundred feet as part of the government's drug interdiction program. Coast Guard officials aboard the U.S.S. BIDDLE were to conduct the boardings and investigations.3

Following standard procedure, the U.S.S. BIDDLE attempted radio and loudspeaker communication with FL 8304 EM in both English and Spanish, but the vessel never responded. The U.S.S. BIDDLE then dispatched a six-member boarding party to conduct a document and safety inspection. The crew did not object to this inspection.

This initial boarding lasted approximately two hours. Two members of the boarding party guarded the captain and crew at the stern of the vessel while four others checked it for compliance with safety regulations. They also conducted a so-called space accountability search to ensure that the vessel was not compartmentalized secretly for smuggling. During the inspection, the captain, Cardona-Sandoval, stated that Roberto de Armas owned the vessel and that appellants were employed to bring the boat from Colombia to St. Maarten. The registration document, however, indicated that Luis Rodriguez owned the boat. Cardona-Sandoval claimed not to know Rodriguez.

As the space accountability search neared completion, one of the junior officers asked the senior officer leading the boarding party, Petty Officer William Ronald Spake, to personally inspect certain areas that appeared suspicious. The areas included a newly-constructed shower; several walls that appeared thicker than necessary, according to the petty officer's prior experience; and a large water tank. Spake indicated that the generally "messy" state of the boat made him suspicious, as well, but after two hours of searching, no contraband was discovered. He then cited vessel master Cardona-Sandoval with a minor violation -- for producing a photocopy of the boat's registration rather than the original -- and conferred with his superior aboard the U.S.S. BIDDLE, Lieutenant George Boyle. The two agreed that they had completed the space accountability search to the best of their ability. Lt. Boyle directed the boarding party to report back to the U.S.S. BIDDLE and, thereafter, the Coast Guard allowed appellants to continue their voyage.

That evening the boarding party and Lt. Boyle assembled for debriefing. The team made several observations: (1) that recent reconstruction had been done on the vessel; (2) that appellants were from a known drug source country; (3) that the sleeping cabins were in disarray, which suggested to the Coast Guard that the crew slept on the deck; (4) that the boat had been painted recently and the paint was peeling; and, (5) that the United States flag was not displayed as it should have been. In addition, one member of the party had become ill during the search, and the officer who replaced him failed to continue the search exactly where the other officer had left off. Lt. Boyle determined that the boarding party had failed to search adequately the space behind the medicine cabinet and the reconstructed shower area, and decided to reboard FL 8304 EM to complete the space accountability search. The record indicates a controversy regarding the real impetus for the second search.4

In addition, sometime on February 25, 1990, Lt. Boyle learned: (1) that the El Paso Intelligence Center ("EPIC") indicated that the captain had been convicted of smuggling marijuana in 1984; (2) that FL 8304 EM was also known as the "Wicho" and was on the EPIC lookout list as possibly having hidden compartments for smuggling; and (3) that EPIC had information on both Roberto de Armas and Luis Rodriguez. Because Lt. Boyle failed to note or was unable to recall the exact time that he received the EPIC information, we do not know whether the Coast Guard possessed this information during the initial search.

On the morning of February 26, 1990, a Navy aircraft located the FL 8304 EM on a course 100 degrees different from the day before. The Coast Guard testified that although conditions at sea had deteriorated considerably, the change in course was not justified by the weather. The Coast Guard inferred that FL 8304 EM had taken evasive action.

Although the Coast Guard justified the second boarding as required by the need to complete the space accountability search, the search actually conducted was much broader than initially purposed. In fact, the second search lasted approximately five hours. During that time, the boarding party used an axe and a crowbar to further investigate the shower area and space underneath the water tank. No contraband was found.

Ultimately, the Coast Guard determined that the seas were too rough to continue the search at sea and they decided to take the vessel and its crew to the Roosevelt Roads Naval Base at Ceiba, Puerto Rico, in order to continue the search. Appellants were transferred to the U.S.S. BIDDLE, allegedly for their safety, and Coast Guard personnel piloted FL 8304 EM back to Puerto Rico. The district court found that appellants did not consent to be taken to Puerto Rico. Id. at 766.

On February 27, while in transit to Puerto Rico, Lt. Boyle inspected the FL 8304 EM personally, and reaffirmed the decision to bring the vessel to shore because certain spaces, such as the water tank (which was welded to the ribs of the vessel), could not be accessed at sea without the risk of sinking the boat.

On February 28, the vessel arrived in Puerto Rico. Navy divers and a narcotics search dog were brought to search the vessel, but detected nothing. The Coast Guard stated that there were too many things strewn over the deck that interfered with the dog's olfactory sense. The water tank was then removed from the boat, and the gasoline tank was emptied. Notwithstanding this search, at the end of the day no contraband had been found. Lt. Boyle transferred custody of the FL 8304 EM to Lt. J.G. Gatlin of the San Juan Coast Guard Law Enforcement attachment.

On March 1, the FL 8304 EM was removed from the water. At this point a destructive search began in earnest. The poor condition of the deck and other factors that suggested that it might have been raised to create hidden spaces, prompted the Coast Guard to use a chainsaw to cut through the deck in search of narcotics. The ceilings and walls of the cabins were pulled down and thoroughly searched. Gatlin and his team discovered a grinder which could be used to cut fiberglass, as well as cushions on the deck filled with fiberglass shavings, suggesting that fiberglass molding work had been done recently. Nevertheless, by the end of the day no illicit substances had been found on the FL 8304 EM.

The government did not give up. The search continued on March 2nd. That afternoon, the search team drilled into two beams that ran the length of the vessel and upon which the engine was mounted. Cocaine was found there. Yet it took the search team even more time to find the place from which the cocaine could be accessed. Using an axe and crowbar, the officers worked for several minutes to open an access point.

After the U.S.S. BIDDLE and FL 8304 EM arrived at Roosevelt Roads Naval Station on February 28, appellants were detained at the base for six hours under guard, during which time they received no food. Subsequently, they were transferred to Immigration and Naturalization Service ("INS") custody and moved to the airport in San Juan where they were detained for three hours in a locked room. Thereafter they were handcuffed and transported to the INS detention facilities at the Salvation Army in San Juan, where they were placed in a large locked room, which resembled a cage. There, they were detained during the three-day on-land search until 5:00 P.M. on March 2, 1990 when they were formally arrested.

After their arrest, appellant Cardona-Sandoval explained to United States Customs Special Agent Roberto Jusino that he had been hired by Roberto de Armas in Barranquilla, Colombia to pick up FL 8304 EM at Rio Hacha, Colombia and take it to St. Maarten. He was to be paid 80,000 Colombian pesos for the job. Similarly, appellant Rojano-Rangel stated that he had been hired by Cardona-Sandoval as a crew member for 60,000 pesos. During the trial, the prosecution and several witnesses incorrectly stated the compensation in dollars, when they actually meant pesos. Because the words peso and dollar are used interchangeably in Puerto Rico to mean United States dollars, the parties stipulated at a later point in the trial that any reference to United States dollars was incorrect and that the correct reference was to Colombian pesos. Agent Jusino testified at trial that the exchange rate for Colombian pesos was very low, but did not testify as to the value of the compensation in American dollars. Appellants attempted to introduce expert testimony on the exchange rate but the district court denied their proffer, finding the witness they attempted to use unqualified to testify on such matters.

II

Appellants challenge their convictions on several grounds. They allege that the district court improperly denied their motion to suppress evidence seized during the search of their vessel, which they claim was in violation of their Fourth Amendment rights. Alternatively, they argue that the evidence was insufficient to support the guilty verdicts. They also contend that the district court committed reversible error by refusing to voir dire the jury regarding their knowledge of two prejudicial newspaper articles published during the deliberations, and by refusing to admit the testimony of a defense expert witness as to the exchange rate between the Colombian peso and the United States dollar.

The district court denied the motion to suppress the evidence seized from the vessel, holding that (1) the cocaine seized was not the fruit of an illegal arrest; (2) the appellants did not have standing to challenge the search and seizure because they had no privacy interest in the structural beams along the hull of the vessel; and (3) the Coast Guard had probable cause to bring the ship to Roosevelt Roads for a destructive search. United States v. Sandoval, 770 F. Supp. at 766-67. Although we disagree with the district court's Conclusion that appellants were not under arrest once they were brought to Puerto Rico and placed in a holding cell for approximately three days while their vessel was searched, we agree that the cocaine seized cannot be considered the fruit of that illegal arrest. We focus, therefore, on the issues related to the search and seizure of the vessel.

III

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ."5 The Amendment protects

two types of expectations, one involving "searches," the other "seizures." A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A "seizure" of property occurs when there is some meaningful interference with an individuals's possessory interests in that property.

United States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984) (footnotes omitted). In Soldal v. Cook County, 121 L. Ed. 2d 450, 113 S. Ct. 538, 543 (1992), the Court reemphasized that the Fourth Amendment protects both possessory and privacy interests when it rejected the Seventh Circuit's narrow reading of the Amendment that restricted its protection only to privacy and liberty interests while leaving unprotected possessory interests where neither privacy nor liberty were at stake. This case implicates breaches of the prohibition on both unreasonable searches and seizures. We begin by discussing the legality of the search.

IV

An individual's Fourth Amendment right to be free from unreasonable searches is implicated when he or she (1) has "manifested a subjective expectation of privacy" in the place searched, which (2) "society accepts as objectively reasonable." California v. Greenwood, 486 U.S. 35, 39, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988); see also O'Connor v. Ortega, 480 U.S. 709, 715, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1980); Katz v. United States, 389 U.S. 347, 361, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967) (Harlan, J., Concurring).

To demonstrate a "subjective expectation of privacy," the Court has required little more than evidence that defendants made some minimal effort to protect their property or activities from warrantless intrusions. See, e.g., Greenwood, 486 U.S. at 39 (placing garbage in opaque plastic bags "clearly" manifests "subjective expectation of privacy," even though bags are later publicly discarded); California v. Ciraolo, 476 U.S. 207, 211, 90 L. Ed. 2d 210, 106 S. Ct. 1809 (1986) (building ten-foot fence around yard manifests "subjective expectation of privacy" from side walk traffic). But cf. Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980) (placing contraband in acquaintance's purse does not manifest "subjective expectation of privacy").

There is "no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable." O'Connor, 480 U.S. at 715. The reasonableness of an expectation of privacy and the proper standard for a search vary according to context. Id. While "arcane distinctions developed in property and tort law" do not control the inquiry, Rakas v. Illinois, 439 U.S. 128, 143, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978), we do consider ownership, possession, control, ability to exclude from the premises, or a legitimate presence on the premises when determining the existence of a legitimate expectation of privacy. United States v. Melucci, 888 F.2d 200, 202 (1st Cir. 1989); United States v. Aguirre, 839 F.2d 854, 856 (1st Cir. 1988). In addition, because of the "circumstances and exigencies of the maritime setting," we have recognized that individuals have a diminished expectation of privacy on a vessel as opposed to that which can be claimed in their homes. See, e.g., United States v. Green, 671 F.2d 46, 53 (1st Cir.), cert. denied, 457 U.S. 1135, 73 L. Ed. 2d 1352, 102 S. Ct. 2962 (1982); United States v. Hilton, 619 F.2d 127, 131 (1st Cir.), cert. denied, 449 U.S. 887, 66 L. Ed. 2d 113, 101 S. Ct. 243 (1980). Finally, we note that "Fourth Amendment rights are personal rights which . . . may not be vicariously asserted." Alderman v. United States, 394 U.S. 165, 174, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969). With these principles as background, we turn to the facts of the present case. Appellants must be divided into two groups for the purpose of measuring the legitimacy of their expectation of privacy: the captain and the crew members. The captain, Cardona-Sandoval, has a cognizable expectation of privacy from unauthorized police intrusions everywhere aboard his ship. This interest derives from his custodial responsibility for the ship, his associated legal power to exclude interlopers from unauthorized entry to particular places on board, and the doctrines of admiralty, which grant the captain (as well as the owner) a legal identity of interest with the vessel. See, e.g., The Styria, 186 U.S. 1, 46 L. Ed. 1027, 22 S. Ct. 731 (1902); Coastal Iron Works, Inc. v. Petty Ray Geophysical, 783 F.2d 577, 582 (5th Cir. 1986); United States v. Aikens, 685 F. Supp. 732, 736 (D. Hawaii 1988), rev'd on other grounds, 946 F.2d 608 (9th Cir. 1990); see generally 1 Martin J. Norris, The Law of Seamen §§ 25:1 et seq. (4th ed. 1985 & supp. 1993) (describing broad powers of master of vessel). Cardona-Sandoval objected to having his boat taken to Puerto Rico for a destructive search, and therefore manifested his subjective expectation of privacy in the vessel. It is appropriate to conclude that Cardona-Sandoval's subjective expectation that he, his vessel and crew, not be taken from the high seas, brought to a country which he did not care to enter, subjected to a six-day search (three of which occurred on land and constituted a destructive search), and detained in a barred cage while the government destroyed the vessel, is one that society is prepared to recognize as reasonable. Thus, in his capacity as master of the vessel, Cardona-Sandoval has a Fourth Amendment right to challenge the searches in this case. See United States v. Marrero, F. Supp. 570, 574 (S.D. Fla. 1986) (defendant who was owner and captain has Fourth Amendment right to contest search).

Whether the crew members' expectation of privacy is objectively reasonable is a more difficult question. To begin with, we are troubled by the inequity that would result, were we to conclude that the captain has Fourth Amendment rights to challenge the search, but that the crew does not. Logically the captain is the person most likely to be trusted with the knowledge of the presence of contraband, and is also the most likely leader of the criminal enterprise. Therefore in equity, at least, the captain least deserves the protection.

Nevertheless, a number of cases have limited the areas of a vessel in which crew members legitimately possess an expectation of privacy. See United States v. Arra, 630 F.2d 836, 841 n.6 (1st Cir. 1980) (questioning, without deciding, whether crew members have right to challenge search in areas other than living quarters); United States v. Peterson, 812 F.2d 486, 494 (9th Cir. 1987) (crew has no privacy interest in cargo hold); United States v. Thompson, 928 F.2d 1060, 1065 (11th Cir.) (recognizing difference between private areas or footlockers versus cargo holds), cert. denied, 116 L. Ed. 2d 222, 112 S. Ct. 270 (1991). The underlying principle of these cases is that a crew member cannot have an expectation of privacy in a space that the Coast Guard is free to inspect in the course of a document and safety check. Obviously, contraband that the Coast Guard observes within plain view (or detects by sensory perception) while searching the cargo hold is not within an area in which crew members could have a reasonable or legitimate privacy interest. Thompson, 928 F.2d at 1064. This, of course, would apply to the captain as well. We think the distinction between private areas, such as footlockers or duffel bags, United States v. De Weese, 632 F.2d 1267, 1271 (5th Cir. 1980), cert. denied, 454 U.S. 878 (1981), or living quarters, United States v. Whitmire, 595 F.2d 1303, 1312 (5th Cir. 1979), cert. denied, 448 U.S. 906, 65 L. Ed. 2d 1136, 100 S. Ct. 3048 (1980), and areas of common access, such as cargo holds or engine rooms, United States v. Stuart-Caballero, 686 F.2d 890 (11th Cir. 1982), cert. denied, 459 U.S. 1209, 75 L. Ed. 2d 444, 103 S. Ct. 1202 (1983), is a useful one to approach particularized standing inquiries. This distinction does not, however, constitute a workable bright-line rule to resolve whether a crew member possesses an objectively reasonable expectation of privacy.

Indeed, the private area-public area dichotomy fails to provide a workable paradigm in this case because a hidden compartment cannot easily be categorized as one or the other. In United States v. Lopez, 761 F.2d 632, 636 (11th Cir. 1985), the Eleventh Circuit considered whether the master and crew member of a vessel had a legitimate expectation of privacy in a hidden compartment. The court made no distinction between the captain and the crew, holding that the two obviously had a subjective expectation of privacy, but that it was not one which "society is prepared to recognize as 'reasonable'." Lopez, 761 F.2d at 636 (quoting Hudson v. Palmer, 468 U.S. 517, 525, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984)). The court offered no reasoning to support this Conclusion, but merely stated that "we cannot imagine that society would recognize a reasonable expectation of privacy in the use of 'dead space' in the hull of a ship, sealed with permanent fiberglass and painted to match the surrounding surfaces, for the legitimate storage of personal items." Id. We assume that the notion underlying this proposition is that secret compartments on vessels are used for smuggling, and society does not condone such activity. See also United States v. Sarda-Villa, 760 F.2d 1232, 1236-37 (11th Cir. 1985) (suggesting that potential uses of hidden compartment distinguish it from dufflebags or footlockers).

We find the circularity of this proposition troubling. In effect, the court eliminates the right to challenge a search and seizure by denying the legitimacy of the privacy interest, and does so because one of the conceivable uses of space is prohibited by law. Therefore it seems that the court would condition the right to challenge a search on the nature of the space, or rather the manner in which a court chose to characterize the space. Standing is denied because the activity is illegal. This reasoning is flawed because the Fourth Amendment protects against governmental invasions of privacy, irrespective of the legality of the object of the intrusion, by deterring police misconduct. Furthermore, it is obvious that a hidden compartment can be used just as well for legitimate purposes, such as to store valuable ships' papers, or money, or for any valid reason that the captain or crew choose. In any event, the amendment protects "people -- and not simply 'areas.'" Katz v. United States, 389 U.S. 347, 353, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967).

An individual's right to challenge a search and seizure cannot hinge on how he places an item on his vessel (unless the object is in plain view), even if he has hidden the object within the structure of the boat. Such a rule would lead to anomalous results: the Coast Guard would need reasonable suspicion or probable cause to search a personal footlocker, which is visible but locked, but could search with abandon secret compartments made by the same individual for legal purposes because the secret nature of the compartment would destroy the legitimacy of his expectation of privacy.

It is not our intention to adopt a "hiding place" exception to the "public areas" doctrine. We do not find a reasonable expectation of privacy because the contraband is well concealed. Rather, we contend that the inferred intent to smuggle contraband, garnered from the indisputably secret nature of the compartment on the vessel, does not negate the legitimacy of the privacy expectation. "The test of legitimacy is not whether the individual chooses to conceal assertedly 'private' activity. Rather, the correct inquiry is whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment." Oliver v. United States, 466 U.S. 170, 182-83, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984).

Nor do we see a great distinction between a secret compartment in a house and a secret compartment on a vessel, when Judged with respect to its secret nature and the expectation of privacy it generates. Courts have recognized that an individual's expectation of privacy at sea is lower because of a variety of factors including the mobility of vessels, the impossibility of controlling the entire coastline, and historical treatment of the government's authority to search vessels, see United States v. Villamonte-Marquez, 462 U.S. 579, 77 L. Ed. 2d 22, 103 S. Ct. 2573 (1983); United States v. Williams, 617 F.2d 1063, 1084-86 (5th Cir. 1980) (en banc), not because of the nature of the compartments on vessels. The reduced expectation of privacy at sea has given the government greater freedom to stop vessels and conduct limited warrantless searches at sea based on less than probable cause. Green, 671 F.2d at 53; Hilton, 619 F.2d at 132; Lopez, 761 F.2d at 635 ("heavy overlay of maritime law and the long practice of regulatory stops, inspections and searches by Customs officers further diminishes the privacy interests of sailors") (citation omitted). It has not been read as a basis for eliminating the right to object to a search and seizure entirely, particularly when the vessel is securely under government control tied to a dock (and even less sitting on dry land), and an impartial judicial officer is readily available to pass upon the existence of probable cause to continue the search for contraband. On the contrary, the expanded power of the government to search at sea must at some point operate to legitimize the expectation of the captain and crew that the government will search no further without probable cause or a warrant. Thus, once the government has conducted an extensive document and safety inspection that is as intrusive as that which occurred in this case, society must be prepared to recognize a reasonable expectation that the government will not tear the vessel apart, destroying its structural integrity, and deprive the crew of possession and access to the same, based on less than probable cause.

Most assuredly, the rationale supporting limited searches based upon less than probable cause would seem to have limited force when the vessel is under arrest, hauled out on dry land, and under guard inside a United States Naval Base, as compared to a traditional high seas search. With the vessel safely immobilized, "it was unreasonable to undertake the additional and greater intrusion of a search without a warrant." United States v. Chadwick, 433 U.S. 1, 13, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977).

We now return directly to the legitimacy of the crews' expectation of privacy. We hold that the members of the crew possessed a legitimate expectation of privacy with respect to all the compartments of this vessel. We base our holding on (1) each crew member's independent duty to maintain the security of the vessel and prevent its destruction; (2) the small size and intimate nature of this sports-fisherman vessel, which does not lend itself to exclusivity of internal spaces; and (3) the crew members' mutual authority to exclude individuals not members of the crew from boarding. This holding does not suggest that all crew members will always have standing to contest a search and seizure of their vessel. Rather, a court must weigh the totality of the circumstances to determine whether an expectation of privacy is objectively reasonable.6

The Dissent seizes upon the broad power of the master under admiralty law to command his crew to refute the legitimacy of the crew's expectation of privacy. On the contrary, we think admiralty law strongly supports our Conclusion that the crew possesses an objectively reasonable expectation of privacy. The authority to delimit the responsibilities of crew members and areas in which the crew may work does not, by its mere existence, destroy a crew member's reasonable expectation of privacy. In both Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960), and Minnesota v. Olson, 495 U.S. 91, 97-100, 109 L. Ed. 2d 85, 110 S. Ct. 1684 (1990), the Supreme Court recognized the privacy interests of guests in another's home despite the host's ultimate control of the house. The Court specifically rejected the notion that "untrammeled power to admit and exclude" was "essential to Fourth Amendment protection." Id. at 99; see also Rakas, 439 U.S. at 149. Similarly, in Mancusi v. DeForte, 392 U.S. 364, 367-70, 20 L. Ed. 2d 1154, 88 S. Ct. 2120 (1968), the Court considered whether a union official has a reasonable expectation of privacy in union records (not personal records) taken from a union office that was not "reserved for his exclusive personal use." The Court held that the official "could reasonably have expected that only [other union officials] and their personal or business guests would enter the office, and that records would not be touched except with their permission or that of union higher-ups." Id. at 369. The Court found the power of more senior officials to consent to the search irrelevant absent such consent. Id. at 370. The inquiry, therefore, is whether the crew has "a reasonable expectation of freedom from governmental intrusion," not whether the captain could limit their expectations. Id. at 368; see also Ortega, 480 U.S. at 716.

If the evidence showed that Cardona-Sandoval had exercised his authority to deny the crew access to portions of the vessel, this would be a different case. Without such a showing, however, we must assume that the crew had a continuing duty to safeguard the vessel until discharged by the captain or the voyage was completed. The C.P. Minch, 73 F. 859, 867 (2d Cir. 1896); The Condor, 196 F. 71, 72 (S.D.N.Y. 1912) (L. Hand, J.); Norris, The Law of Seamen § 25:16. A crew member's duty is to the master, the ship, and the owner of the vessel. See, e.g., The C.P. Minch, supra ; The Condor, supra ; cf. The Hope, 35 U.S. (10 Pet.) 108, 122, 9 L. Ed. 363 (1836) (Story, J.) (crew or pilot may not be awarded salvage unless their duty to or "connection" with the ship is dissolved by discharge, or they respond to extraordinary events beyond the call of their duty to master and vessel); The Blaireau, 6 U.S. (2 Cranch) 240, 2 L. Ed. 266 (1804) (Marshall, C.J.) (same). This duty, subject to the master's orders, creates an obligation to exclude noncrew members, with the exception of law enforcement officials who possess proper authority to inspect the vessel.7

In addition, the size of the vessel heightens this duty. We do not confront the case of a large ocean freighter, but rather a forty-three (43) foot sports-fisherman. This small pleasure craft possesses limited and cramped cabin and deck space, in which the crew members could probably see or hear each other at all times. Thus, the members would quickly detect and exclude interlopers, which supports the reasonableness of their expectation of privacy as to noncrew individuals.

The crew also has a duty to ensure that the vessel not be destroyed and that it reach its destination. See, e.g., The C.P. Minch, supra ; The Condor, supra ; The Hope, supra. Government intrusion or destruction of the vessel, when excessive and unauthorized by law, is no different from private disruption of the vessel's journey. In the case of private interference, the crew would be charged with defending the vessel and saving it from destruction. Because we cannot approve or encourage resistance even to wrongful government inspection, however, there must be a meaningful avenue to redress the government's frustration of the crew's obligations.

The Dissent likens the status of crew members to that of passengers in an automobile and would find no expectation of privacy based on the Supreme Court's decision in Rakas, 439 U.S. at 148-49. Given the obligations imposed by admiralty law, the comparison is untenable. Passengers, qua passengers, are invitees of the owner or the individual who controls the vehicle. Crew members, in contrast, are duty bound to stay with the vessel and maintain its security. In a small, sport-fisherman such as here, in which the master and three crew members live for several days, eating, sleeping, and working in close quarters, each possesses a reasonable expectation to be free from illegal governmental intrusion that society is prepared to recognize as legitimate.

We turn to whether the search complied with the Fourth Amendment.

V

The Coast Guard's authority under 14 U.S.C. § 89(a)8 to stop and board an American vessel on the high seas9 is quite broad. We have held that administrative safety and document inspections are permissible even "without any particularized suspicion of wrongdoing." United States v. Elkins, 774 F.2d 530, 533-34 (1st Cir. 1985) (quoting United States v. Burke, 716 F.2d 935, 937 (1st Cir. 1983)). Despite this empowerment, the Fourth Amendment still prohibits unreasonable searches. The reasonableness of any search depends first on "whether the . . . action was justified at its inception," Terry v. Ohio, 392 U.S. 1, 20, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and second, on whether the search actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place." Id. ; see also New Jersey v. T.L.O., 469 U.S. 325, 341, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985).

Because of the special circumstances implicated by searches and seizures of vessels while at sea, we have recognized a diminished expectation of privacy. Green, 671 F.2d at 53; Hilton, 619 F.2d at 131. Nevertheless, we require that the Coast Guard possess "reasonable and articulable grounds for suspecting that the vessel or those on board are engaging in criminal activities" before conducting a thorough search beyond checking for compliance with safety regulations. Green, 671 F.2d at 53 (citing Williams, 617 F.2d at 1076, 1084). The necessary "reasonable suspicion" may be formed on the basis of facts obtained during the safety and document inspection, and once reasonable suspicion exists the inspecting officers may drill into a suspicious area to search for contraband. Elkins, 774 F.2d at 534. Both the document and safety inspection, and a search pursuant to reasonable suspicion, must be confined to areas reasonably incident to the purpose of the inspection. Therefore, a reasonable suspicion search only authorizes a limited intrusion. For example, if a particular area of a vessel raises a reasonable suspicion, then that area may be investigated further. Id. (suspicious fuel tank); see also Lopez, 761 F.2d at 636. Neither authority provides carte blanche to destroy a vessel. See Hilton, 619 F.2d at 132 (discussing scope of document and safety inspection).

In the maritime context, the relative intrusiveness of a search must be justified by a corresponding level of suspicion supported by specific facts gathered by investigating officials. Cf. New Jersey v. T.L.O., 469 U.S. at 343-44, 347 (contemplating expanding scope of search where justified by facts giving rise to further reasonable suspicion); Villamonte Marquez, 462 U.S. at 592. We recognize that by allowing each inspection to provide the basis for a more intrusive search -- document and safety inspection supplying reasonable suspicion which later supports a probable cause determination -- we risk manipulation by government officials of the factual progression that provided the authority for ever more intrusive searches. We think that this danger further justifies the deterrent supplied by our holding with respect to standing. More intrusive searches that yield no contraband can halt the forward progression evidence that would justify a full, destructive search. Thus, if a document and safety inspection causes a Coast Guard officer to have reasonable suspicion with respect to certain areas, and a search of those areas yields nothing, then a destructive search might not be justified. Cf. Mincey v. Arizona, 437 U.S. 385, 393, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978) ("warrantless search must be 'strictly circumscribed by the exigencies which justify its initiation'") (citation omitted). Ultimately, a full, "stem to stern," destructive search may only be conducted on the basis of probable cause. Lopez, 761 F.2d at 636-37; United States v. Andreu, 715 F.2d 1497 (11th Cir. 1983).

The facts of the present case provide a graphic illustration of the principles stated above. The initial boarding of the FL 8304 EM was for a perfectly legal document and safety inspection pursuant to 14 U.S.C. § 89(a). Petty Officer Spake issued a minor violation notice for failing to present the original copy of the vessel's registration papers. He felt that he was not authorized to proceed further with the search despite his "suspicion" regarding certain spaces. (Suppression Hearing Transcript, October 1, 1990, at 58). Matters changed, however, during the subsequent debriefing. Apparently, EPIC information was received regarding the vessel, the captain, and the two alleged owners. In addition, certain spaces purportedly had not been accounted for during the document and safety inspection. The sequence of these developments raises questions. The absence of adequate answers to these questions casts doubt on the validity of subsequent events.

After-the-fact rationalizing is precisely what makes the relaxed warrant and cause procedures such a dangerous tool in the hands of over-zealous officials. If we had a clear record establishing reasonable suspicion to reboard the FL 8304 EM based on specific factors, this action would be less troubling than it presently is. But in this case the record is unclear as to when specific pieces of information came to the attention of the Coast Guard, and on what basis the Coast Guard justified their actions.

The government's brief suffers from the same problem. For example, it suggests that the boarding party discovered fiberglass shavings in the cushions on the deck of the vessel, which added support for the second boarding and bringing the vessel to Puerto Rico. But our investigation of the record indicated that Lt. Gatlin's on-land inspection team did not discover the fiberglass until March 1. We cannot stress enough the importance of compiling a coherent and detailed record as to when facts are discovered and when the inferences and Conclusions are drawn therefrom. A finding of guilt becomes irrelevant if the evidence upon which conviction is secured is not procured in a constitutional manner.

Notwithstanding the abuse, we conclude that the second boarding and five-hour search was justified by reasonable suspicion rather than by the necessity of completing the document and safety inspection. In section VI, infra, we consider the implications of the Coast Guard's decision to impound the vessel. To assess the validity of the search, it is enough to focus on the activity that occurred on land since it clearly violated the Fourth Amendment.

Once the FL 8304 EM arrived in Puerto Rico, and the decision to turn the captain and crew over to INS had been made, there was no justification for not securing a warrant from a judicial officer. Moreover, the search by Navy divers and a narcotics detection dog, and the thorough and destructive inspection of many structural areas of the boat (including the suspicious shower area and water tank), should have dissolved any suspicion once reasonably held. At that point, all the government had to support a probable cause finding was the EPIC information, the course change, and the fact that the boat originated from a drug source country. This was not sufficient to support a finding of probable cause. To this we must add the failure to get a warrant once the maritime exigency was removed by arrival at Roosevelt Roads. The continued search of the vessel without judicial approval by way of a warrant was illegal, and any evidence discovered thereafter should have been suppressed by the district court.

Despite our finding that the appellants could challenge the search and that the search was unreasonable, we consider next the legality of seizure because law enforcement at sea often involves a seizure and because limited stops are customary in the maritime context.

VI

The Fourth Amendment secures possessory interests through its prohibition of unreasonable seizures. "A 'seizure' of property occurs when there is some meaningful interference with an individual's possessory interest in that property." Jacobsen, 466 U.S. at 113. "In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized." United States v. Place, 462 U.S. 696, 708, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983). When law enforcement has probable cause to believe the container holds contraband or evidence of a crime and the exigencies of the situation require seizure, or some other exception to the warrant requirement exists, the Court has permitted seizures of property pending issuance of a warrant to examine its contents. See, e.g., Jacobsen, 466 U.S. at 121-22; Arkansas v. Sanders, 442 U.S. 753, 761, 61 L. Ed. 2d 235, 99 S. Ct. 2586 (1979); United States v. Chadwick, 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977). Place applied the principles of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), which made an exception to the probable-cause requirement for limited seizures of persons, to seizures of property. Place explained that the Terry exception "rests on a balancing of the competing interests to determine the reasonableness of the type of governmental intrusion involved within the meaning of 'the Fourth Amendment's general proscription against unreasonable searches and seizures.'" 362 U.S. at 703 (quoting Terry, 392 U.S. at 20). For example, in focusing on the "reasonableness" of the "type of governmental intrusion involved," the Court has held that customs officials may board vessels located in waters with ready access to the sea, without any suspicion of wrongdoing, to inspect documents. Villamonte-Marquez, 462 U.S. 579, 77 L. Ed. 2d 22, 103 S. Ct. 2573. This case requires that we apply these same principles and "balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion," Place, 462 U.S. at 703, to determine when the Coast Guard's stop of the vessel constituted a seizure and assess whether the seizure was unreasonable under the Fourth Amendment.10

We begin by noting that the possessory interest implicated by a seizure is different from the privacy interest involved in a search. Thus, in Place, the Court found that the detention of an individual's luggage was an unlawful seizure because it unreasonably infringed "the suspect's possessory interest in his luggage." Id. at 708. Similarly, in Jacobsen the Court considered whether the destruction of some powder, which had leaked from a package seized by the government, was reasonable under the Fourth Amendment. The Court concluded that while the destruction of the small amount of powder for chemical testing interfered with the owner's "possessory interests," it was not unreasonable under those particular circumstances. Id. at 124-25. In neither case did the individual challenging the governmental intrusion enjoy an expectation of privacy that society was prepared to recognize. Place, 462 U.S. at 708 (dog sniff did not compromise privacy interest); Jacobsen, 466 U.S. at 119-20 (since contents of package were revealed by private party to government, no legitimate expectation of privacy existed); see also Soldal 113 S. Ct. at 544. Consequently, any objection to finding a privacy interest for the crew in areas not strictly confined to living quarters and footlockers has no bearing on whether the crew has a cognizable possessory interest in the vessel to challenge the seizure of the boat.

We think the captain and the crew have a recognizable possessory interest in the vessel. The captain and crew are entrusted with the management and safeguard of the boat. They are hired to navigate a vessel between two locations within a certain specified period and deliver designated cargo. The captain and crew have an interdependent relationship, as neither can operate and navigate the vessel without the other's aid and cooperation. The completion of the mission cannot occur without possession of the vessel and without unreasonable interference from law enforcement officials. Moreover, the crew members must remain with the ship and obey the master's orders until the voyage is completed or the master discharges them. See Norris, The Law of Seamen at § 25:16.11 Particularly in a vessel of this size and configuration, the entire crew has a possessory interest in the vessel.

Given the broad authority of law enforcement officials to stop vessels and conduct document and safety inspections on less than probable cause and without a warrant, see, e.g., Villamonte-Marquez, supra ; Elkins, supra, we must determine when the seizure occurred. The Coast Guard claims that it was necessary to bring the vessel to Roosevelt Roads in Puerto Rico because the seas had become too turbulent to safely complete the inspection at sea. We can accept that bad weather may justify taking a boat to a safe haven to conclude a safety inspection, particularly when reasonable suspicion is present. The inquiry into whether poor conditions at sea justify impounding a ship speaks to the "reasonableness" of the seizure, however, not to whether a "seizure" has occurred. We believe that the decision to bring the vessel to Puerto Rico manifested the government's "assertion of dominion and control" over the vessel which meaningfully interfered with appellants' possessory interests, and therefore, constituted a "seizure," see, e.g., Jacobsen, 466 U.S. at 120-21, although not necessarily an unreasonable one at that point.

As stated above, in assessing the reasonableness of a seizure, we balance the nature and quality of the government interference with possessory interests against the importance of the governmental interest justifying the interference. See id. at 125; Place, 462 U.S. at 703.

We examine first the governmental interest justifying impounding the vessel for the purpose of completing the inspection. Of course, the government has a substantial interest in ensuring that the documentation and safety regulation pertaining to seamen are enforced, see Villamonte-Marquez, supra, and in stemming the flow of drugs into the country. See Place, 462 U.S. at 703; United States v. Mendenhall, 446 U.S. 544, 561-62, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980) (opinion of Powell, J.). These compelling, albeit generalized, interests lose much of their force, however, in circumstances like those presented in this case. For example, in Place, the Supreme Court explained that "the context of a particular law enforcement practice, of course, may affect the determination whether a brief intrusion on Fourth Amendment interests on less than probable cause is essential to effective criminal investigation." Id. at 704. The Court concluded that the transient nature of drug smuggling at airports justified brief detention of luggage because that investigative procedure substantially increased the effectiveness of drug interdiction efforts. Id. Similarly, in Jacobsen, the law enforcement interests were found to be substantial because "the suspicious nature of the material made it virtually certain that the substance tested was in fact contraband." 466 U.S. at 125. In this case, the initial stop and investigation, and perhaps the second inspection, like the procedure in Place, substantially enhanced the enforcement of compelling government interests. But after two days of searching the vessel in an intrusive and thorough manner, the practice can longer be said to advance those interests. This is especially true when government intrusion did not produce probable cause to believe the law had been broken, much less virtual certainty that the officials had found contraband. See Jacobsen, supra.12

The impropriety of the government action is palpable when one considers the nature and quality of the interference with appellants' Fourth Amendment interests and contrasts this case with others in which the intrusion has been deemed permissible. The keystone of warrantless seizures based on less than probable cause has been that the seizures be brief and for "the purpose of pursuing a limited course of investigation." See Jacobsen, supra ; Place, supra ; Villamonte-Marquez, 462 U.S. at 592 (intrusion of document check limited); Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983) (plurality opinion) ("The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect"); Michigan v. Summers, 452 U.S. 692, 698, 69 L. Ed. 2d 340, 101 S. Ct. 2587 (1981) (limited detention of occupants of premises while authorities execute valid search warrant permissible); United States v. Cortez, 449 U.S. 411, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981) (intrusion of privacy associated with stop near border to check citizenship and immigration status was limited and related to scope of initiation); United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975) (authorizing brief stop for limited inquiry regarding citizenship near border); Terry, supra. In this case, the government interference with appellants' possessory interests was substantial. After two days of inspection at sea, during which they were in effect under arrest under armed guard at the stern of the vessel, appellants were dispossessed of their vessel, transported to a country which they did not wish to enter, and prevented from continuing with their journey. There was absolutely nothing brief, limited or minimal about the seizure of the vessel here.

In sum, after balancing the governmental interest against the substantial interference with appellants' Fourth Amendment possessory interest, the warrantless seizure based on less than probable cause was unreasonable. After the seizure of the vessel and its arrival to a safe haven, the government was required to ask judicial approval before further action by seeking a warrant. The law enforcement officials obviously failed to request a warrant because they lacked probable cause. The evidence found pursuant to the seizure of the vessel should have been suppressed.

VII

Conclusion

Because we find that all the appellants had a reasonable expectation of privacy sufficient to confer a right to challenge the search and seizure, and because the search violated appellants' Fourth Amendment rights, the convictions must be reversed. In addition, we find that the seizure of the vessel was unreasonable, which warranted suppression of the contraband later found and reversal of appellants' convictions. We need not consider appellants' other arguments.

Appellants' convictions are reversed.

"Dissent Follows"

CYR, Circuit Judge (dissenting in part). Although the stem-to-stern destructive search of the drydocked vessel exceeded whatever reasonable limits inhere in a safety and document inspection, I believe the defendant crew members failed to establish an intrusion on their Fourth Amendment rights, either under the tripartite theory relied on by the majority, see slip op. at 19, or any other theory.

As the Supreme Court recently reiterated, "a 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." Soldal v. Cook County, Illinois, 121 L. Ed. 2d 450, 113 S. Ct. 538, 544 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984)); see also United States v. Bouffard, 917 F.2d 673, 675-76 (1st Cir. 1990); United States v. Soule, 908 F.2d 1032, 1034 (1st Cir. 1990). The burden of establishing a protected Fourth Amendment privacy interest rests squarely with the individual defendant. Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980); Bouffard, 917 F.2d at 675 (quoting Rakas v. Illinois, 439 U.S. 128, 131 n.1, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978)). Accordingly, for more than a decade, the Court has insisted that "the capacity to claim the protection of the Fourth Amendment depends . . . upon whether the person who claims [its] protection . . . has a legitimate expectation of privacy in the invaded place." Rakas, 439 U.S. at 143 (emphasis added); see also California v. Greenwood, 486 U.S. 35, 39-40, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988); Rawlings, 448 U.S. at 104-105 (1980); United States v. Salvucci, 448 U.S. 83, 93, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (1980); see generally United States v. Cruz Jimenez, 894 F.2d 1, 5 (1st Cir. 1990) ("Demonstration of a [legitimate expectation of privacy] is a threshold . . . requirement, and analysis cannot proceed further without its establishment.") (footnote omitted).

In the present case, where no crew member asserts a possessory or proprietary interest in the vessel itself,13 the establishment of a "legitimate expectation of privacy" turns upon two inquiries. First, we inquire whether there is any "longstanding social custom" which would substantiate a reasonable expectation of privacy on the part of the crew. See, e.g., Minnesota v. Olson, 495 U.S. 91, 98-99, 109 L. Ed. 2d 85, 110 S. Ct. 1684 (1990) (houseguest's expectation of privacy); O'Connor v. Ortega, 480 U.S. 709, 717-18, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1986) (public employees). Second, absent any such "longstanding social custom," we inquire whether the crew members had the right to exclude intruders from the area in or through which on-board access could be had to the property seized. Compare United States v. Morales, 847 F.2d 671, 672 (11th Cir. 1988) (recognizing crew's Fourth Amendment right to challenge search of hidden compartment, since authorities gained access to hidden compartment through crew's private quarters), with United States v. Lopez, 761 F.2d 632, 635-36 (11th Cir. 1985) (recognizing no Fourth Amendment right in hidden compartment, where authorities gained access through "common area" on deck of ship); United States v. Sarda-Villa, 760 F.2d 1232, 1236-37 (11th Cir. 1985) (recognizing no Fourth Amendment right in hidden compartment underneath seats in main cabin of vessel).

The contraband seized from the vessel in the present case had been hidden in a hollowed-out compartment within a structural beam running beneath the engine room. Unbeknownst to the Coast Guard, the secret compartment in the beam was accessible through the engine room.14 See, e.g., United States v. Marsh, 747 F.2d 7, 11 (1st Cir. 1984) (engine room as "common area"); United States v. Stuart-Caballero, 686 F.2d 890, 891-92 (11th Cir. 1982) (same), cert. denied, 459 U.S. 1209, 75 L. Ed. 2d 444, 103 S. Ct. 1202 (1983). Of course, it is clear that no "longstanding social custom" confers on crew members an "expectation of privacy" in the engine room or other "common areas" of a vessel. See United States v. Arra, 630 F.2d 836, 841 n.6 (1st Cir. 1980) ("areas subject to a safety inspection, such as the engine room . . . are places where . . . the crew of a vessel would have little if any expectation of privacy"); see generally, e.g., United States v. Green, 671 F.2d 46, 53 (1st Cir.), cert. denied, 457 U.S. 1135, 73 L. Ed. 2d 1352, 102 S. Ct. 2962 (1982) (noting diminished expectation of privacy on maritime vessels). It is possible, as the majority suggests, that the master may have an expectation of privacy from unauthorized official intrusions in the engine room, or elsewhere aboard the vessel. See slip op. at 13-14; see also United States v. Aikens, 685 F. Supp. 732, 736 (D. Hawaii 1988) (master's "total control is consistent with the recognition of a privacy expectation which emerges from such authority"), rev'd on other grounds, 946 F.2d 608 (9th Cir. 1990); see generally 1 Martin J. Norris, The Law of Seamen §§ 25:1 et seq. (4th ed. 1985 & 1993 supp.) (discussing scope of master's authority aboard ship). But crew members cannot base an asserted "reasonable expectation of privacy" on that of the captain, even though, as coconspirators, their subjective interests in preventing governmental access to the hidden compartment and its contents may have been entirely compatible with the captain's interests.15

Turning to the second inquiry, it is clear that admiralty law confers no right whatever upon crew members to exclude either the master, the Coast Guard, or one another, from common areas such as the engine room, let alone from the interior of a structural beam. The master alone possesses such a right, as the fiduciary representative of the vessel owner. See 1 Norris, supra, at § 14:8. Although the majority invokes traditional admiralty doctrines, such as the crew's "duty to maintain the security of the vessel," and the "authority to exclude individuals" therefrom, this "authority" is not "mutual," as the majority suggests, slip op. at 19. Rather, the crew's authority is derivative of the master's authority, and is exercised pursuant to his command, or the command of his delegate or lawful successor. See 1 Norris, supra, at §§ 14:8, 25:16. As the Supreme Court stated in Southern S.S. Co. v. N.L.R.B., 316 U.S. 31, 38, 86 L. Ed. 1246, 62 S. Ct. 886 (1942), "[the master] must command and the crew must obey. Authority cannot be divided. These are actualities which the law has always recognized."16

Contrary to the majority's suggestion, a "reasonable expectation of privacy" is not automatically inferable simply from the "small size and intimate nature" of the vessel or from the fact that the vessel "does not lend itself to exclusivity of internal spaces." See slip op. at 19. An automobile is much smaller than a 43-foot fishing boat, and lends itself even less to "exclusivity of internal spaces." Nevertheless, automobile passengers, qua passengers, have no "reasonable expectation of privacy" in the contents of the glove compartment, or the area beneath their seats. See, e.g., Rakas, 439 U.S. at 148-49; see also United States v. Lochan, 674 F.2d 960, 965 (1st Cir. 1982). The attempt to distinguish Rakas, on the basis of "obligations imposed by admiralty law," slip op. at 23, is unavailing. Crew members are aboard the vessel by arrangement with the master, as representative of the owner, see Norris, supra, at § 25:1, and the performance of their "obligations" is subject to the master's command. Indeed, crew members may be discharged by the master, or relieved of their "obligations" at any time, for disobedience to "lawful authority." See Norris, supra, at §§ 14:8, 23:1 et seq.

Finally, but not least important, the defendant crew members have never asserted a reasonable expectation of privacy based on an "independent duty to maintain the security of the vessel," or on "the small size and intimate nature of this sports-fisherman vessel," or on an amorphous "mutual authority to exclude individuals not members of the crew" from the vessel, the engine room, or the hidden compartment within. See slip op. at 19. Under governing law, therefore, the record is wholly insufficient to suggest, let alone establish, that the warrantless search of the secret compartment intruded on a "legitimate expectation of privacy" of either crew member. Rakas, 439 U.S. at 143. The best that can be said is that the tripartite theory of Fourth Amendment "standing" relied on by the court today, see slip op. at 19, is not implicated on the present record, even assuming its validity.17

The egalitarian concerns underlying the court's ruling that captain and crew must be accorded the same right to redress the challenged governmental intrusion are superficially compelling. As the court says, "logically the captain is the person most likely to be trusted with the knowledge of the presence of contraband, and is also the most likely leader of the criminal enterprise." Slip op. at 14. Thus, for the challenged evidence to be ruled excludable at the behest of the captain, but not the crew, appears unfair at first blush. But these concerns are illusory in the context of the appropriate Fourth Amendment inquiry: whether the individual crew members demonstrated a legitimate expectation of privacy in the invaded place or a proprietary or possessory interest in the evidence seized. The Fourth Amendment exclusionary rule simply is not designed to ensure "equitable" outcomes, but to safeguard expectations of privacy society is prepared to recognize as reasonable.18 To that end, the right to invoke the exclusionary rule is restricted to individuals who demonstrate an unlawful governmental intrusion upon an actual expectation of privacy which society is prepared to recognize as reasonable. See Rakas, supra ; Alderman, supra ; see also 4 Wayne R. LaFave, Search & Seizure, § 11.3(i) at 361 (2d ed. 1987) ("guilty persons, of course, are sometimes acquitted as a consequence of the suppression [of unlawfully seized evidence], but to conclude that still other guilty persons must likewise be acquitted because joined in crime or trial with the first group is to bestow upon them a 'windfall to which they are not justly entitled.'") (citation omitted).

I respectfully Dissent from the holding that the Fourth Amendment rights of the defendant crew members were violated.

1. The third crew member, Alfonso Molina, was acquitted at trial.

2. The parties stipulated that the vessel was subject to the jurisdiction of the United States.

3. Pursuant to 10 U.S.C. § 379(a) (Supp. 1992), Coast Guard officials may be assigned to duty aboard Navy vessels to perform drug interdiction. See United States v. Sandoval, 770 F. Supp. 762, 767 (D.P.R. 1991).

4. See United States v. Sandoval, 770 F. Supp. at 766 (stating Boarding Report of February 25, 1990 cited medicine cabinet on bulkhead as reason for reboarding; and rejecting the magistrate's finding that the water tank was a specific reason for the second boarding).

5. United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 108 L. Ed. 2d 222, 110 S. Ct. 1056 (1990), has no application because the vessel was a United States flag ship and the violation occurred within United States territory. Cf. United States v. Aikens, 947 F.2d 608, 613 (9th Cir. 1990).

6. Our holding does not rely on the "coconspirator exception" developed in the Ninth Circuit and recently denounced by the Supreme Court in United States v. Padilla, 123 L. Ed. 2d 635, 61 U.S.L.W. 4458, 113 S. Ct. 1936 (1993). The Court objected to the Ninth Circuit's reliance on aspects of the conspiratorial relationship to confer standing upon members of a conspiracy to challenge a stop and search of a vehicle. The Court emphasized that the fact that one coconspirator was a "communications link" among the members of the conspiracy and that other members "were in charge of the transportation of the drugs" were not relevant to the proper Fourth Amendment inquiry. As the Court has instructed, however, we look for a reasonable expectation of privacy since "the conspiracy itself neither adds nor detracts" from the interests necessary to challenge the legality of a search. Id. at 4459; see also United States v. Soule, 908 F.2d 1032, 1036-37 (1st Cir. 1990).

7. Of course, maritime law demands the utmost fidelity of seamen to the master and empowers the master to enforce his command by sanction. See Norris, supra, at § 14:8. The law bestows this authority because "the lives of passengers and crew, as well as the safety of ship and cargo, are entrusted to the master's care. Every one and every thing depends on him." Southern S.S. Co. v. NLRB, 316 U.S. 31, 38, 86 L. Ed. 1246, 62 S. Ct. 886 (1942). The master's authority serves to protect the vessel. See The Styria, 186 U.S. 1, 46 L. Ed. 1027, 22 S. Ct. 731 ; Norris, supra, at §§ 25:1 et seq. The duty to obey the master ensures that crews fulfill their obligation to safeguard the vessel. See, e.g., The C.P. Minch, supra ; The Condor, supra ; Norris, supra, at § 25:16.

8. 14 U.S.C. § 89(a) provides, in relevant part: The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or the operation of any law, of the United States, address inquiries to those on board, examine the ships documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be immediately pursued and arrested on shore, or other lawful appropriate action shall be taken . . . .

9. The "high seas" are those waters "beyond the territorial seas of the U.S. and beyond the territorial seas of any foreign nation." 21 U.S.C. § 955b(b).

10. The district court held that defendants had standing to object to the seizure of the boat, but that the seizure was justified by probable cause. 770 F. Supp. at 767. "We will uphold [a district court's] denial of the suppression motion if a 'reasonable' view of the record supports it." Soule, 908 F.2d at 1036 n.7.

11. As in Place, this possessory interest is accompanied by a "liberty interest in proceeding with [one's] itinerary." 462 U.S. at 708-710.

12. The government's interest in impounding a vessel for the purpose of a safety and document inspection when rough seas prohibit investigation at sea would be substantially higher than in this case. The contrast highlights the weakness of the government's interest here.

13. As the crew members presented no claim or evidence that their proprietary or possessory rights were violated by the seizure, we need not address separately their right to challenge the "seizure" of the vessel. See slip op. at 26-32. Though the right to contest a "seizure" does not invariably require that the moving party demonstrate a "reasonable expectation of privacy" in the place where the seizure occurred, see Soldal, 113 S. Ct. at 545-46, at the very least the moving party must demonstrate a "possessory interest" in the property seized. See id. at 543 (quoting Jacobsen, 466 U.S. at 113).

14. The secret compartment seems to have been situated so as to be accessible by means of a concealed "entrance way." Once the "entrance way" was unblocked, the packages of cocaine could be pulled from the hollowed-out beam by means of a string.

15. As the Court has stated time and again, the Fourth Amendment protects individual rights only, and no defendant may piggyback on a codefendant's expectation of privacy. See United States v. Padilla, 113 S. Ct. ___, 61 U.S.L.W. 4458, 4458 (May 3, 1993) (rejecting Ninth Circuit view that "a co-conspirator obtains a legitimate expectation of privacy for Fourth Amendment purposes if he has either a supervisory role in the conspiracy or joint control over the place or property involved in the search or seizure"); Alderman v. United States, 394 U.S. 165, 171-72, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969) (rejecting "derivative standing" for coconspirators under Fourth Amendment); United States v. Soule, 908 F.2d 1032, 1036-37 (1st Cir. 1990) (same); United States v. Bouffard, 917 F.2d 673, 675-76 & n.6 (1st Cir. 1990) (tracing the successive demise of various theories of Fourth Amendment "standing," including "automatic," "derivative," and "target theory" standing).

16. The mere fact that the master may not have exercised his authority to control access to a particular area aboard the vessel, see slip op. at 21-22, does not mean that the crew possesses an "objectively reasonable expectation" that the master cannot or will not do so in the future. In any case, the burden of proof remains squarely on the crew to assert that the master has renounced such authority. Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980); Bouffard, 917 F.2d at 675 (quoting Rakas v. Illinois, 439 U.S. 128, 131 n.1, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978)). The record contains neither argument nor evidence suggesting an actual renunciation or delegation of the master's shipboard authority in this case.

17. Since the government directly challenged defendants' "standing" below, a remand to permit the district court to consider the matter further would seem to be precluded. Compare Combs v. United States, 408 U.S. 224, 227-28, 33 L. Ed. 2d 308, 92 S. Ct. 2284 (1972) (Per Curiam) (directing remand where prosecutor had not challenged defendant's "standing"), with Rakas, 439 U.S. at 130-31 n.1 (refusing to remand where prosecutor had challenged "standing" at suppression hearing). See also Bouffard, 917 F.2d at 677-78.

18. On the other hand, of course, we recognize that the limited role and authority of crew members may at times be relevant to a "sufficiency of the evidence" challenge. See, e.g. United States v. Steuben, 850 F.2d 859, 869 (1st Cir. 1988); United States v. Bland, 653 F.2d 989, 996-97 (5th Cir. 1981), cert. denied, 454 U.S. 1055, 70 L. Ed. 2d 592, 102 S. Ct. 602 (1981).

TORRUELLA, Circuit Judge. This appeal involves the validity of a search of a vessel. Appellants Joaquin Cardona-Sandoval, Alejandro Rojano-Rangel, and Jorge Gomez-Olarte appeal their convictions of possessing cocaine with intent to distribute in violation of 46 U.S.C. § 1903(a), (b)(1), and (f). For the reasons that follow, we reverse the convictions.

I

The facts are set forth in the light most favorable to the government. Appellants Cardona-Sandoval (the captain), Rojano-Rangel and Gomez-Olarte (the crew),1 were on board a forty-three foot sports-fisherman, Florida registration Number "FL 8304 EM"2 allegedly on route from Colombia, South America to St. Maarten. All appellants are Colombian nationals.

On February 25, 1990, they were intercepted by the U.S.S. BIDDLE, a Navy destroyer. The U.S.S. BIDDLE was charged with boarding northbound vessels of less than four hundred feet as part of the government's drug interdiction program. Coast Guard officials aboard the U.S.S. BIDDLE were to conduct the boardings and investigations.3

Following standard procedure, the U.S.S. BIDDLE attempted radio and loudspeaker communication with FL 8304 EM in both English and Spanish, but the vessel never responded. The U.S.S. BIDDLE then dispatched a six-member boarding party to conduct a document and safety inspection. The crew did not object to this inspection.

This initial boarding lasted approximately two hours. Two members of the boarding party guarded the captain and crew at the stern of the vessel while four others checked it for compliance with safety regulations. They also conducted a so-called space accountability search to ensure that the vessel was not compartmentalized secretly for smuggling. During the inspection, the captain, Cardona-Sandoval, stated that Roberto de Armas owned the vessel and that appellants were employed to bring the boat from Colombia to St. Maarten. The registration document, however, indicated that Luis Rodriguez owned the boat. Cardona-Sandoval claimed not to know Rodriguez.

As the space accountability search neared completion, one of the junior officers asked the senior officer leading the boarding party, Petty Officer William Ronald Spake, to personally inspect certain areas that appeared suspicious. The areas included a newly-constructed shower; several walls that appeared thicker than necessary, according to the petty officer's prior experience; and a large water tank. Spake indicated that the generally "messy" state of the boat made him suspicious, as well, but after two hours of searching, no contraband was discovered. He then cited vessel master Cardona-Sandoval with a minor violation -- for producing a photocopy of the boat's registration rather than the original -- and conferred with his superior aboard the U.S.S. BIDDLE, Lieutenant George Boyle. The two agreed that they had completed the space accountability search to the best of their ability. Lt. Boyle directed the boarding party to report back to the U.S.S. BIDDLE and, thereafter, the Coast Guard allowed appellants to continue their voyage.

That evening the boarding party and Lt. Boyle assembled for debriefing. The team made several observations: (1) that recent reconstruction had been done on the vessel; (2) that appellants were from a known drug source country; (3) that the sleeping cabins were in disarray, which suggested to the Coast Guard that the crew slept on the deck; (4) that the boat had been painted recently and the paint was peeling; and, (5) that the United States flag was not displayed as it should have been. In addition, one member of the party had become ill during the search, and the officer who replaced him failed to continue the search exactly where the other officer had left off. Lt. Boyle determined that the boarding party had failed to search adequately the space behind the medicine cabinet and the reconstructed shower area, and decided to reboard FL 8304 EM to complete the space accountability search. The record indicates a controversy regarding the real impetus for the second search.4

In addition, sometime on February 25, 1990, Lt. Boyle learned: (1) that the El Paso Intelligence Center ("EPIC") indicated that the captain had been convicted of smuggling marijuana in 1984; (2) that FL 8304 EM was also known as the "Wicho" and was on the EPIC lookout list as possibly having hidden compartments for smuggling; and (3) that EPIC had information on both Roberto de Armas and Luis Rodriguez. Because Lt. Boyle failed to note or was unable to recall the exact time that he received the EPIC information, we do not know whether the Coast Guard possessed this information during the initial search.

On the morning of February 26, 1990, a Navy aircraft located the FL 8304 EM on a course 100 degrees different from the day before. The Coast Guard testified that although conditions at sea had deteriorated considerably, the change in course was not justified by the weather. The Coast Guard inferred that FL 8304 EM had taken evasive action.

Although the Coast Guard justified the second boarding as required by the need to complete the space accountability search, the search actually conducted was much broader than initially purposed. In fact, the second search lasted approximately five hours. During that time, the boarding party used an axe and a crowbar to further investigate the shower area and space underneath the water tank. No contraband was found.

Ultimately, the Coast Guard determined that the seas were too rough to continue the search at sea and they decided to take the vessel and its crew to the Roosevelt Roads Naval Base at Ceiba, Puerto Rico, in order to continue the search. Appellants were transferred to the U.S.S. BIDDLE, allegedly for their safety, and Coast Guard personnel piloted FL 8304 EM back to Puerto Rico. The district court found that appellants did not consent to be taken to Puerto Rico. Id. at 766.

On February 27, while in transit to Puerto Rico, Lt. Boyle inspected the FL 8304 EM personally, and reaffirmed the decision to bring the vessel to shore because certain spaces, such as the water tank (which was welded to the ribs of the vessel), could not be accessed at sea without the risk of sinking the boat.

On February 28, the vessel arrived in Puerto Rico. Navy divers and a narcotics search dog were brought to search the vessel, but detected nothing. The Coast Guard stated that there were too many things strewn over the deck that interfered with the dog's olfactory sense. The water tank was then removed from the boat, and the gasoline tank was emptied. Notwithstanding this search, at the end of the day no contraband had been found. Lt. Boyle transferred custody of the FL 8304 EM to Lt. J.G. Gatlin of the San Juan Coast Guard Law Enforcement attachment.

On March 1, the FL 8304 EM was removed from the water. At this point a destructive search began in earnest. The poor condition of the deck and other factors that suggested that it might have been raised to create hidden spaces, prompted the Coast Guard to use a chainsaw to cut through the deck in search of narcotics. The ceilings and walls of the cabins were pulled down and thoroughly searched. Gatlin and his team discovered a grinder which could be used to cut fiberglass, as well as cushions on the deck filled with fiberglass shavings, suggesting that fiberglass molding work had been done recently. Nevertheless, by the end of the day no illicit substances had been found on the FL 8304 EM.

The government did not give up. The search continued on March 2nd. That afternoon, the search team drilled into two beams that ran the length of the vessel and upon which the engine was mounted. Cocaine was found there. Yet it took the search team even more time to find the place from which the cocaine could be accessed. Using an axe and crowbar, the officers worked for several minutes to open an access point.

After the U.S.S. BIDDLE and FL 8304 EM arrived at Roosevelt Roads Naval Station on February 28, appellants were detained at the base for six hours under guard, during which time they received no food. Subsequently, they were transferred to Immigration and Naturalization Service ("INS") custody and moved to the airport in San Juan where they were detained for three hours in a locked room. Thereafter they were handcuffed and transported to the INS detention facilities at the Salvation Army in San Juan, where they were placed in a large locked room, which resembled a cage. There, they were detained during the three-day on-land search until 5:00 P.M. on March 2, 1990 when they were formally arrested.

After their arrest, appellant Cardona-Sandoval explained to United States Customs Special Agent Roberto Jusino that he had been hired by Roberto de Armas in Barranquilla, Colombia to pick up FL 8304 EM at Rio Hacha, Colombia and take it to St. Maarten. He was to be paid 80,000 Colombian pesos for the job. Similarly, appellant Rojano-Rangel stated that he had been hired by Cardona-Sandoval as a crew member for 60,000 pesos. During the trial, the prosecution and several witnesses incorrectly stated the compensation in dollars, when they actually meant pesos. Because the words peso and dollar are used interchangeably in Puerto Rico to mean United States dollars, the parties stipulated at a later point in the trial that any reference to United States dollars was incorrect and that the correct reference was to Colombian pesos. Agent Jusino testified at trial that the exchange rate for Colombian pesos was very low, but did not testify as to the value of the compensation in American dollars. Appellants attempted to introduce expert testimony on the exchange rate but the district court denied their proffer, finding the witness they attempted to use unqualified to testify on such matters.

II

Appellants challenge their convictions on several grounds. They allege that the district court improperly denied their motion to suppress evidence seized during the search of their vessel, which they claim was in violation of their Fourth Amendment rights. Alternatively, they argue that the evidence was insufficient to support the guilty verdicts. They also contend that the district court committed reversible error by refusing to voir dire the jury regarding their knowledge of two prejudicial newspaper articles published during the deliberations, and by refusing to admit the testimony of a defense expert witness as to the exchange rate between the Colombian peso and the United States dollar.

The district court denied the motion to suppress the evidence seized from the vessel, holding that (1) the cocaine seized was not the fruit of an illegal arrest; (2) the appellants did not have standing to challenge the search and seizure because they had no privacy interest in the structural beams along the hull of the vessel; and (3) the Coast Guard had probable cause to bring the ship to Roosevelt Roads for a destructive search. United States v. Sandoval, 770 F. Supp. at 766-67. Although we disagree with the district court's Conclusion that appellants were not under arrest once they were brought to Puerto Rico and placed in a holding cell for approximately three days while their vessel was searched, we agree that the cocaine seized cannot be considered the fruit of that illegal arrest. We focus, therefore, on the issues related to the search and seizure of the vessel.

III

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ."5 The Amendment protects

two types of expectations, one involving "searches," the other "seizures." A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A "seizure" of property occurs when there is some meaningful interference with an individuals's possessory interests in that property.

United States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984) (footnotes omitted). In Soldal v. Cook County, 121 L. Ed. 2d 450, 113 S. Ct. 538, 543 (1992), the Court reemphasized that the Fourth Amendment protects both possessory and privacy interests when it rejected the Seventh Circuit's narrow reading of the Amendment that restricted its protection only to privacy and liberty interests while leaving unprotected possessory interests where neither privacy nor liberty were at stake. This case implicates breaches of the prohibition on both unreasonable searches and seizures. We begin by discussing the legality of the search.

IV

An individual's Fourth Amendment right to be free from unreasonable searches is implicated when he or she (1) has "manifested a subjective expectation of privacy" in the place searched, which (2) "society accepts as objectively reasonable." California v. Greenwood, 486 U.S. 35, 39, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988); see also O'Connor v. Ortega, 480 U.S. 709, 715, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1980); Katz v. United States, 389 U.S. 347, 361, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967) (Harlan, J., Concurring).

To demonstrate a "subjective expectation of privacy," the Court has required little more than evidence that defendants made some minimal effort to protect their property or activities from warrantless intrusions. See, e.g., Greenwood, 486 U.S. at 39 (placing garbage in opaque plastic bags "clearly" manifests "subjective expectation of privacy," even though bags are later publicly discarded); California v. Ciraolo, 476 U.S. 207, 211, 90 L. Ed. 2d 210, 106 S. Ct. 1809 (1986) (building ten-foot fence around yard manifests "subjective expectation of privacy" from side walk traffic). But cf. Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980) (placing contraband in acquaintance's purse does not manifest "subjective expectation of privacy").

There is "no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable." O'Connor, 480 U.S. at 715. The reasonableness of an expectation of privacy and the proper standard for a search vary according to context. Id. While "arcane distinctions developed in property and tort law" do not control the inquiry, Rakas v. Illinois, 439 U.S. 128, 143, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978), we do consider ownership, possession, control, ability to exclude from the premises, or a legitimate presence on the premises when determining the existence of a legitimate expectation of privacy. United States v. Melucci, 888 F.2d 200, 202 (1st Cir. 1989); United States v. Aguirre, 839 F.2d 854, 856 (1st Cir. 1988). In addition, because of the "circumstances and exigencies of the maritime setting," we have recognized that individuals have a diminished expectation of privacy on a vessel as opposed to that which can be claimed in their homes. See, e.g., United States v. Green, 671 F.2d 46, 53 (1st Cir.), cert. denied, 457 U.S. 1135, 73 L. Ed. 2d 1352, 102 S. Ct. 2962 (1982); United States v. Hilton, 619 F.2d 127, 131 (1st Cir.), cert. denied, 449 U.S. 887, 66 L. Ed. 2d 113, 101 S. Ct. 243 (1980). Finally, we note that "Fourth Amendment rights are personal rights which . . . may not be vicariously asserted." Alderman v. United States, 394 U.S. 165, 174, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969). With these principles as background, we turn to the facts of the present case. Appellants must be divided into two groups for the purpose of measuring the legitimacy of their expectation of privacy: the captain and the crew members. The captain, Cardona-Sandoval, has a cognizable expectation of privacy from unauthorized police intrusions everywhere aboard his ship. This interest derives from his custodial responsibility for the ship, his associated legal power to exclude interlopers from unauthorized entry to particular places on board, and the doctrines of admiralty, which grant the captain (as well as the owner) a legal identity of interest with the vessel. See, e.g., The Styria, 186 U.S. 1, 46 L. Ed. 1027, 22 S. Ct. 731 (1902); Coastal Iron Works, Inc. v. Petty Ray Geophysical, 783 F.2d 577, 582 (5th Cir. 1986); United States v. Aikens, 685 F. Supp. 732, 736 (D. Hawaii 1988), rev'd on other grounds, 946 F.2d 608 (9th Cir. 1990); see generally 1 Martin J. Norris, The Law of Seamen §§ 25:1 et seq. (4th ed. 1985 & supp. 1993) (describing broad powers of master of vessel). Cardona-Sandoval objected to having his boat taken to Puerto Rico for a destructive search, and therefore manifested his subjective expectation of privacy in the vessel. It is appropriate to conclude that Cardona-Sandoval's subjective expectation that he, his vessel and crew, not be taken from the high seas, brought to a country which he did not care to enter, subjected to a six-day search (three of which occurred on land and constituted a destructive search), and detained in a barred cage while the government destroyed the vessel, is one that society is prepared to recognize as reasonable. Thus, in his capacity as master of the vessel, Cardona-Sandoval has a Fourth Amendment right to challenge the searches in this case. See United States v. Marrero, F. Supp. 570, 574 (S.D. Fla. 1986) (defendant who was owner and captain has Fourth Amendment right to contest search).

Whether the crew members' expectation of privacy is objectively reasonable is a more difficult question. To begin with, we are troubled by the inequity that would result, were we to conclude that the captain has Fourth Amendment rights to challenge the search, but that the crew does not. Logically the captain is the person most likely to be trusted with the knowledge of the presence of contraband, and is also the most likely leader of the criminal enterprise. Therefore in equity, at least, the captain least deserves the protection.

Nevertheless, a number of cases have limited the areas of a vessel in which crew members legitimately possess an expectation of privacy. See United States v. Arra, 630 F.2d 836, 841 n.6 (1st Cir. 1980) (questioning, without deciding, whether crew members have right to challenge search in areas other than living quarters); United States v. Peterson, 812 F.2d 486, 494 (9th Cir. 1987) (crew has no privacy interest in cargo hold); United States v. Thompson, 928 F.2d 1060, 1065 (11th Cir.) (recognizing difference between private areas or footlockers versus cargo holds), cert. denied, 116 L. Ed. 2d 222, 112 S. Ct. 270 (1991). The underlying principle of these cases is that a crew member cannot have an expectation of privacy in a space that the Coast Guard is free to inspect in the course of a document and safety check. Obviously, contraband that the Coast Guard observes within plain view (or detects by sensory perception) while searching the cargo hold is not within an area in which crew members could have a reasonable or legitimate privacy interest. Thompson, 928 F.2d at 1064. This, of course, would apply to the captain as well. We think the distinction between private areas, such as footlockers or duffel bags, United States v. De Weese, 632 F.2d 1267, 1271 (5th Cir. 1980), cert. denied, 454 U.S. 878 (1981), or living quarters, United States v. Whitmire, 595 F.2d 1303, 1312 (5th Cir. 1979), cert. denied, 448 U.S. 906, 65 L. Ed. 2d 1136, 100 S. Ct. 3048 (1980), and areas of common access, such as cargo holds or engine rooms, United States v. Stuart-Caballero, 686 F.2d 890 (11th Cir. 1982), cert. denied, 459 U.S. 1209, 75 L. Ed. 2d 444, 103 S. Ct. 1202 (1983), is a useful one to approach particularized standing inquiries. This distinction does not, however, constitute a workable bright-line rule to resolve whether a crew member possesses an objectively reasonable expectation of privacy.

Indeed, the private area-public area dichotomy fails to provide a workable paradigm in this case because a hidden compartment cannot easily be categorized as one or the other. In United States v. Lopez, 761 F.2d 632, 636 (11th Cir. 1985), the Eleventh Circuit considered whether the master and crew member of a vessel had a legitimate expectation of privacy in a hidden compartment. The court made no distinction between the captain and the crew, holding that the two obviously had a subjective expectation of privacy, but that it was not one which "society is prepared to recognize as 'reasonable'." Lopez, 761 F.2d at 636 (quoting Hudson v. Palmer, 468 U.S. 517, 525, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984)). The court offered no reasoning to support this Conclusion, but merely stated that "we cannot imagine that society would recognize a reasonable expectation of privacy in the use of 'dead space' in the hull of a ship, sealed with permanent fiberglass and painted to match the surrounding surfaces, for the legitimate storage of personal items." Id. We assume that the notion underlying this proposition is that secret compartments on vessels are used for smuggling, and society does not condone such activity. See also United States v. Sarda-Villa, 760 F.2d 1232, 1236-37 (11th Cir. 1985) (suggesting that potential uses of hidden compartment distinguish it from dufflebags or footlockers).

We find the circularity of this proposition troubling. In effect, the court eliminates the right to challenge a search and seizure by denying the legitimacy of the privacy interest, and does so because one of the conceivable uses of space is prohibited by law. Therefore it seems that the court would condition the right to challenge a search on the nature of the space, or rather the manner in which a court chose to characterize the space. Standing is denied because the activity is illegal. This reasoning is flawed because the Fourth Amendment protects against governmental invasions of privacy, irrespective of the legality of the object of the intrusion, by deterring police misconduct. Furthermore, it is obvious that a hidden compartment can be used just as well for legitimate purposes, such as to store valuable ships' papers, or money, or for any valid reason that the captain or crew choose. In any event, the amendment protects "people -- and not simply 'areas.'" Katz v. United States, 389 U.S. 347, 353, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967).

An individual's right to challenge a search and seizure cannot hinge on how he places an item on his vessel (unless the object is in plain view), even if he has hidden the object within the structure of the boat. Such a rule would lead to anomalous results: the Coast Guard would need reasonable suspicion or probable cause to search a personal footlocker, which is visible but locked, but could search with abandon secret compartments made by the same individual for legal purposes because the secret nature of the compartment would destroy the legitimacy of his expectation of privacy.

It is not our intention to adopt a "hiding place" exception to the "public areas" doctrine. We do not find a reasonable expectation of privacy because the contraband is well concealed. Rather, we contend that the inferred intent to smuggle contraband, garnered from the indisputably secret nature of the compartment on the vessel, does not negate the legitimacy of the privacy expectation. "The test of legitimacy is not whether the individual chooses to conceal assertedly 'private' activity. Rather, the correct inquiry is whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment." Oliver v. United States, 466 U.S. 170, 182-83, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984).

Nor do we see a great distinction between a secret compartment in a house and a secret compartment on a vessel, when Judged with respect to its secret nature and the expectation of privacy it generates. Courts have recognized that an individual's expectation of privacy at sea is lower because of a variety of factors including the mobility of vessels, the impossibility of controlling the entire coastline, and historical treatment of the government's authority to search vessels, see United States v. Villamonte-Marquez, 462 U.S. 579, 77 L. Ed. 2d 22, 103 S. Ct. 2573 (1983); United States v. Williams, 617 F.2d 1063, 1084-86 (5th Cir. 1980) (en banc), not because of the nature of the compartments on vessels. The reduced expectation of privacy at sea has given the government greater freedom to stop vessels and conduct limited warrantless searches at sea based on less than probable cause. Green, 671 F.2d at 53; Hilton, 619 F.2d at 132; Lopez, 761 F.2d at 635 ("heavy overlay of maritime law and the long practice of regulatory stops, inspections and searches by Customs officers further diminishes the privacy interests of sailors") (citation omitted). It has not been read as a basis for eliminating the right to object to a search and seizure entirely, particularly when the vessel is securely under government control tied to a dock (and even less sitting on dry land), and an impartial judicial officer is readily available to pass upon the existence of probable cause to continue the search for contraband. On the contrary, the expanded power of the government to search at sea must at some point operate to legitimize the expectation of the captain and crew that the government will search no further without probable cause or a warrant. Thus, once the government has conducted an extensive document and safety inspection that is as intrusive as that which occurred in this case, society must be prepared to recognize a reasonable expectation that the government will not tear the vessel apart, destroying its structural integrity, and deprive the crew of possession and access to the same, based on less than probable cause.

Most assuredly, the rationale supporting limited searches based upon less than probable cause would seem to have limited force when the vessel is under arrest, hauled out on dry land, and under guard inside a United States Naval Base, as compared to a traditional high seas search. With the vessel safely immobilized, "it was unreasonable to undertake the additional and greater intrusion of a search without a warrant." United States v. Chadwick, 433 U.S. 1, 13, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977).

We now return directly to the legitimacy of the crews' expectation of privacy. We hold that the members of the crew possessed a legitimate expectation of privacy with respect to all the compartments of this vessel. We base our holding on (1) each crew member's independent duty to maintain the security of the vessel and prevent its destruction; (2) the small size and intimate nature of this sports-fisherman vessel, which does not lend itself to exclusivity of internal spaces; and (3) the crew members' mutual authority to exclude individuals not members of the crew from boarding. This holding does not suggest that all crew members will always have standing to contest a search and seizure of their vessel. Rather, a court must weigh the totality of the circumstances to determine whether an expectation of privacy is objectively reasonable.6

The Dissent seizes upon the broad power of the master under admiralty law to command his crew to refute the legitimacy of the crew's expectation of privacy. On the contrary, we think admiralty law strongly supports our Conclusion that the crew possesses an objectively reasonable expectation of privacy. The authority to delimit the responsibilities of crew members and areas in which the crew may work does not, by its mere existence, destroy a crew member's reasonable expectation of privacy. In both Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960), and Minnesota v. Olson, 495 U.S. 91, 97-100, 109 L. Ed. 2d 85, 110 S. Ct. 1684 (1990), the Supreme Court recognized the privacy interests of guests in another's home despite the host's ultimate control of the house. The Court specifically rejected the notion that "untrammeled power to admit and exclude" was "essential to Fourth Amendment protection." Id. at 99; see also Rakas, 439 U.S. at 149. Similarly, in Mancusi v. DeForte, 392 U.S. 364, 367-70, 20 L. Ed. 2d 1154, 88 S. Ct. 2120 (1968), the Court considered whether a union official has a reasonable expectation of privacy in union records (not personal records) taken from a union office that was not "reserved for his exclusive personal use." The Court held that the official "could reasonably have expected that only [other union officials] and their personal or business guests would enter the office, and that records would not be touched except with their permission or that of union higher-ups." Id. at 369. The Court found the power of more senior officials to consent to the search irrelevant absent such consent. Id. at 370. The inquiry, therefore, is whether the crew has "a reasonable expectation of freedom from governmental intrusion," not whether the captain could limit their expectations. Id. at 368; see also Ortega, 480 U.S. at 716.

If the evidence showed that Cardona-Sandoval had exercised his authority to deny the crew access to portions of the vessel, this would be a different case. Without such a showing, however, we must assume that the crew had a continuing duty to safeguard the vessel until discharged by the captain or the voyage was completed. The C.P. Minch, 73 F. 859, 867 (2d Cir. 1896); The Condor, 196 F. 71, 72 (S.D.N.Y. 1912) (L. Hand, J.); Norris, The Law of Seamen § 25:16. A crew member's duty is to the master, the ship, and the owner of the vessel. See, e.g., The C.P. Minch, supra ; The Condor, supra ; cf. The Hope, 35 U.S. (10 Pet.) 108, 122, 9 L. Ed. 363 (1836) (Story, J.) (crew or pilot may not be awarded salvage unless their duty to or "connection" with the ship is dissolved by discharge, or they respond to extraordinary events beyond the call of their duty to master and vessel); The Blaireau, 6 U.S. (2 Cranch) 240, 2 L. Ed. 266 (1804) (Marshall, C.J.) (same). This duty, subject to the master's orders, creates an obligation to exclude noncrew members, with the exception of law enforcement officials who possess proper authority to inspect the vessel.7

In addition, the size of the vessel heightens this duty. We do not confront the case of a large ocean freighter, but rather a forty-three (43) foot sports-fisherman. This small pleasure craft possesses limited and cramped cabin and deck space, in which the crew members could probably see or hear each other at all times. Thus, the members would quickly detect and exclude interlopers, which supports the reasonableness of their expectation of privacy as to noncrew individuals.

The crew also has a duty to ensure that the vessel not be destroyed and that it reach its destination. See, e.g., The C.P. Minch, supra ; The Condor, supra ; The Hope, supra. Government intrusion or destruction of the vessel, when excessive and unauthorized by law, is no different from private disruption of the vessel's journey. In the case of private interference, the crew would be charged with defending the vessel and saving it from destruction. Because we cannot approve or encourage resistance even to wrongful government inspection, however, there must be a meaningful avenue to redress the government's frustration of the crew's obligations.

The Dissent likens the status of crew members to that of passengers in an automobile and would find no expectation of privacy based on the Supreme Court's decision in Rakas, 439 U.S. at 148-49. Given the obligations imposed by admiralty law, the comparison is untenable. Passengers, qua passengers, are invitees of the owner or the individual who controls the vehicle. Crew members, in contrast, are duty bound to stay with the vessel and maintain its security. In a small, sport-fisherman such as here, in which the master and three crew members live for several days, eating, sleeping, and working in close quarters, each possesses a reasonable expectation to be free from illegal governmental intrusion that society is prepared to recognize as legitimate.

We turn to whether the search complied with the Fourth Amendment.

V

The Coast Guard's authority under 14 U.S.C. § 89(a)8 to stop and board an American vessel on the high seas9 is quite broad. We have held that administrative safety and document inspections are permissible even "without any particularized suspicion of wrongdoing." United States v. Elkins, 774 F.2d 530, 533-34 (1st Cir. 1985) (quoting United States v. Burke, 716 F.2d 935, 937 (1st Cir. 1983)). Despite this empowerment, the Fourth Amendment still prohibits unreasonable searches. The reasonableness of any search depends first on "whether the . . . action was justified at its inception," Terry v. Ohio, 392 U.S. 1, 20, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and second, on whether the search actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place." Id. ; see also New Jersey v. T.L.O., 469 U.S. 325, 341, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985).

Because of the special circumstances implicated by searches and seizures of vessels while at sea, we have recognized a diminished expectation of privacy. Green, 671 F.2d at 53; Hilton, 619 F.2d at 131. Nevertheless, we require that the Coast Guard possess "reasonable and articulable grounds for suspecting that the vessel or those on board are engaging in criminal activities" before conducting a thorough search beyond checking for compliance with safety regulations. Green, 671 F.2d at 53 (citing Williams, 617 F.2d at 1076, 1084). The necessary "reasonable suspicion" may be formed on the basis of facts obtained during the safety and document inspection, and once reasonable suspicion exists the inspecting officers may drill into a suspicious area to search for contraband. Elkins, 774 F.2d at 534. Both the document and safety inspection, and a search pursuant to reasonable suspicion, must be confined to areas reasonably incident to the purpose of the inspection. Therefore, a reasonable suspicion search only authorizes a limited intrusion. For example, if a particular area of a vessel raises a reasonable suspicion, then that area may be investigated further. Id. (suspicious fuel tank); see also Lopez, 761 F.2d at 636. Neither authority provides carte blanche to destroy a vessel. See Hilton, 619 F.2d at 132 (discussing scope of document and safety inspection).

In the maritime context, the relative intrusiveness of a search must be justified by a corresponding level of suspicion supported by specific facts gathered by investigating officials. Cf. New Jersey v. T.L.O., 469 U.S. at 343-44, 347 (contemplating expanding scope of search where justified by facts giving rise to further reasonable suspicion); Villamonte Marquez, 462 U.S. at 592. We recognize that by allowing each inspection to provide the basis for a more intrusive search -- document and safety inspection supplying reasonable suspicion which later supports a probable cause determination -- we risk manipulation by government officials of the factual progression that provided the authority for ever more intrusive searches. We think that this danger further justifies the deterrent supplied by our holding with respect to standing. More intrusive searches that yield no contraband can halt the forward progression evidence that would justify a full, destructive search. Thus, if a document and safety inspection causes a Coast Guard officer to have reasonable suspicion with respect to certain areas, and a search of those areas yields nothing, then a destructive search might not be justified. Cf. Mincey v. Arizona, 437 U.S. 385, 393, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978) ("warrantless search must be 'strictly circumscribed by the exigencies which justify its initiation'") (citation omitted). Ultimately, a full, "stem to stern," destructive search may only be conducted on the basis of probable cause. Lopez, 761 F.2d at 636-37; United States v. Andreu, 715 F.2d 1497 (11th Cir. 1983).

The facts of the present case provide a graphic illustration of the principles stated above. The initial boarding of the FL 8304 EM was for a perfectly legal document and safety inspection pursuant to 14 U.S.C. § 89(a). Petty Officer Spake issued a minor violation notice for failing to present the original copy of the vessel's registration papers. He felt that he was not authorized to proceed further with the search despite his "suspicion" regarding certain spaces. (Suppression Hearing Transcript, October 1, 1990, at 58). Matters changed, however, during the subsequent debriefing. Apparently, EPIC information was received regarding the vessel, the captain, and the two alleged owners. In addition, certain spaces purportedly had not been accounted for during the document and safety inspection. The sequence of these developments raises questions. The absence of adequate answers to these questions casts doubt on the validity of subsequent events.

After-the-fact rationalizing is precisely what makes the relaxed warrant and cause procedures such a dangerous tool in the hands of over-zealous officials. If we had a clear record establishing reasonable suspicion to reboard the FL 8304 EM based on specific factors, this action would be less troubling than it presently is. But in this case the record is unclear as to when specific pieces of information came to the attention of the Coast Guard, and on what basis the Coast Guard justified their actions.

The government's brief suffers from the same problem. For example, it suggests that the boarding party discovered fiberglass shavings in the cushions on the deck of the vessel, which added support for the second boarding and bringing the vessel to Puerto Rico. But our investigation of the record indicated that Lt. Gatlin's on-land inspection team did not discover the fiberglass until March 1. We cannot stress enough the importance of compiling a coherent and detailed record as to when facts are discovered and when the inferences and Conclusions are drawn therefrom. A finding of guilt becomes irrelevant if the evidence upon which conviction is secured is not procured in a constitutional manner.

Notwithstanding the abuse, we conclude that the second boarding and five-hour search was justified by reasonable suspicion rather than by the necessity of completing the document and safety inspection. In section VI, infra, we consider the implications of the Coast Guard's decision to impound the vessel. To assess the validity of the search, it is enough to focus on the activity that occurred on land since it clearly violated the Fourth Amendment.

Once the FL 8304 EM arrived in Puerto Rico, and the decision to turn the captain and crew over to INS had been made, there was no justification for not securing a warrant from a judicial officer. Moreover, the search by Navy divers and a narcotics detection dog, and the thorough and destructive inspection of many structural areas of the boat (including the suspicious shower area and water tank), should have dissolved any suspicion once reasonably held. At that point, all the government had to support a probable cause finding was the EPIC information, the course change, and the fact that the boat originated from a drug source country. This was not sufficient to support a finding of probable cause. To this we must add the failure to get a warrant once the maritime exigency was removed by arrival at Roosevelt Roads. The continued search of the vessel without judicial approval by way of a warrant was illegal, and any evidence discovered thereafter should have been suppressed by the district court.

Despite our finding that the appellants could challenge the search and that the search was unreasonable, we consider next the legality of seizure because law enforcement at sea often involves a seizure and because limited stops are customary in the maritime context.

VI

The Fourth Amendment secures possessory interests through its prohibition of unreasonable seizures. "A 'seizure' of property occurs when there is some meaningful interference with an individual's possessory interest in that property." Jacobsen, 466 U.S. at 113. "In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized." United States v. Place, 462 U.S. 696, 708, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983). When law enforcement has probable cause to believe the container holds contraband or evidence of a crime and the exigencies of the situation require seizure, or some other exception to the warrant requirement exists, the Court has permitted seizures of property pending issuance of a warrant to examine its contents. See, e.g., Jacobsen, 466 U.S. at 121-22; Arkansas v. Sanders, 442 U.S. 753, 761, 61 L. Ed. 2d 235, 99 S. Ct. 2586 (1979); United States v. Chadwick, 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977). Place applied the principles of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), which made an exception to the probable-cause requirement for limited seizures of persons, to seizures of property. Place explained that the Terry exception "rests on a balancing of the competing interests to determine the reasonableness of the type of governmental intrusion involved within the meaning of 'the Fourth Amendment's general proscription against unreasonable searches and seizures.'" 362 U.S. at 703 (quoting Terry, 392 U.S. at 20). For example, in focusing on the "reasonableness" of the "type of governmental intrusion involved," the Court has held that customs officials may board vessels located in waters with ready access to the sea, without any suspicion of wrongdoing, to inspect documents. Villamonte-Marquez, 462 U.S. 579, 77 L. Ed. 2d 22, 103 S. Ct. 2573. This case requires that we apply these same principles and "balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion," Place, 462 U.S. at 703, to determine when the Coast Guard's stop of the vessel constituted a seizure and assess whether the seizure was unreasonable under the Fourth Amendment.10

We begin by noting that the possessory interest implicated by a seizure is different from the privacy interest involved in a search. Thus, in Place, the Court found that the detention of an individual's luggage was an unlawful seizure because it unreasonably infringed "the suspect's possessory interest in his luggage." Id. at 708. Similarly, in Jacobsen the Court considered whether the destruction of some powder, which had leaked from a package seized by the government, was reasonable under the Fourth Amendment. The Court concluded that while the destruction of the small amount of powder for chemical testing interfered with the owner's "possessory interests," it was not unreasonable under those particular circumstances. Id. at 124-25. In neither case did the individual challenging the governmental intrusion enjoy an expectation of privacy that society was prepared to recognize. Place, 462 U.S. at 708 (dog sniff did not compromise privacy interest); Jacobsen, 466 U.S. at 119-20 (since contents of package were revealed by private party to government, no legitimate expectation of privacy existed); see also Soldal 113 S. Ct. at 544. Consequently, any objection to finding a privacy interest for the crew in areas not strictly confined to living quarters and footlockers has no bearing on whether the crew has a cognizable possessory interest in the vessel to challenge the seizure of the boat.

We think the captain and the crew have a recognizable possessory interest in the vessel. The captain and crew are entrusted with the management and safeguard of the boat. They are hired to navigate a vessel between two locations within a certain specified period and deliver designated cargo. The captain and crew have an interdependent relationship, as neither can operate and navigate the vessel without the other's aid and cooperation. The completion of the mission cannot occur without possession of the vessel and without unreasonable interference from law enforcement officials. Moreover, the crew members must remain with the ship and obey the master's orders until the voyage is completed or the master discharges them. See Norris, The Law of Seamen at § 25:16.11 Particularly in a vessel of this size and configuration, the entire crew has a possessory interest in the vessel.

Given the broad authority of law enforcement officials to stop vessels and conduct document and safety inspections on less than probable cause and without a warrant, see, e.g., Villamonte-Marquez, supra ; Elkins, supra, we must determine when the seizure occurred. The Coast Guard claims that it was necessary to bring the vessel to Roosevelt Roads in Puerto Rico because the seas had become too turbulent to safely complete the inspection at sea. We can accept that bad weather may justify taking a boat to a safe haven to conclude a safety inspection, particularly when reasonable suspicion is present. The inquiry into whether poor conditions at sea justify impounding a ship speaks to the "reasonableness" of the seizure, however, not to whether a "seizure" has occurred. We believe that the decision to bring the vessel to Puerto Rico manifested the government's "assertion of dominion and control" over the vessel which meaningfully interfered with appellants' possessory interests, and therefore, constituted a "seizure," see, e.g., Jacobsen, 466 U.S. at 120-21, although not necessarily an unreasonable one at that point.

As stated above, in assessing the reasonableness of a seizure, we balance the nature and quality of the government interference with possessory interests against the importance of the governmental interest justifying the interference. See id. at 125; Place, 462 U.S. at 703.

We examine first the governmental interest justifying impounding the vessel for the purpose of completing the inspection. Of course, the government has a substantial interest in ensuring that the documentation and safety regulation pertaining to seamen are enforced, see Villamonte-Marquez, supra, and in stemming the flow of drugs into the country. See Place, 462 U.S. at 703; United States v. Mendenhall, 446 U.S. 544, 561-62, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980) (opinion of Powell, J.). These compelling, albeit generalized, interests lose much of their force, however, in circumstances like those presented in this case. For example, in Place, the Supreme Court explained that "the context of a particular law enforcement practice, of course, may affect the determination whether a brief intrusion on Fourth Amendment interests on less than probable cause is essential to effective criminal investigation." Id. at 704. The Court concluded that the transient nature of drug smuggling at airports justified brief detention of luggage because that investigative procedure substantially increased the effectiveness of drug interdiction efforts. Id. Similarly, in Jacobsen, the law enforcement interests were found to be substantial because "the suspicious nature of the material made it virtually certain that the substance tested was in fact contraband." 466 U.S. at 125. In this case, the initial stop and investigation, and perhaps the second inspection, like the procedure in Place, substantially enhanced the enforcement of compelling government interests. But after two days of searching the vessel in an intrusive and thorough manner, the practice can longer be said to advance those interests. This is especially true when government intrusion did not produce probable cause to believe the law had been broken, much less virtual certainty that the officials had found contraband. See Jacobsen, supra.12

The impropriety of the government action is palpable when one considers the nature and quality of the interference with appellants' Fourth Amendment interests and contrasts this case with others in which the intrusion has been deemed permissible. The keystone of warrantless seizures based on less than probable cause has been that the seizures be brief and for "the purpose of pursuing a limited course of investigation." See Jacobsen, supra ; Place, supra ; Villamonte-Marquez, 462 U.S. at 592 (intrusion of document check limited); Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983) (plurality opinion) ("The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect"); Michigan v. Summers, 452 U.S. 692, 698, 69 L. Ed. 2d 340, 101 S. Ct. 2587 (1981) (limited detention of occupants of premises while authorities execute valid search warrant permissible); United States v. Cortez, 449 U.S. 411, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981) (intrusion of privacy associated with stop near border to check citizenship and immigration status was limited and related to scope of initiation); United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975) (authorizing brief stop for limited inquiry regarding citizenship near border); Terry, supra. In this case, the government interference with appellants' possessory interests was substantial. After two days of inspection at sea, during which they were in effect under arrest under armed guard at the stern of the vessel, appellants were dispossessed of their vessel, transported to a country which they did not wish to enter, and prevented from continuing with their journey. There was absolutely nothing brief, limited or minimal about the seizure of the vessel here.

In sum, after balancing the governmental interest against the substantial interference with appellants' Fourth Amendment possessory interest, the warrantless seizure based on less than probable cause was unreasonable. After the seizure of the vessel and its arrival to a safe haven, the government was required to ask judicial approval before further action by seeking a warrant. The law enforcement officials obviously failed to request a warrant because they lacked probable cause. The evidence found pursuant to the seizure of the vessel should have been suppressed.

VII

Conclusion

Because we find that all the appellants had a reasonable expectation of privacy sufficient to confer a right to challenge the search and seizure, and because the search violated appellants' Fourth Amendment rights, the convictions must be reversed. In addition, we find that the seizure of the vessel was unreasonable, which warranted suppression of the contraband later found and reversal of appellants' convictions. We need not consider appellants' other arguments.

Appellants' convictions are reversed.

"Dissent Follows"

CYR, Circuit Judge (dissenting in part). Although the stem-to-stern destructive search of the drydocked vessel exceeded whatever reasonable limits inhere in a safety and document inspection, I believe the defendant crew members failed to establish an intrusion on their Fourth Amendment rights, either under the tripartite theory relied on by the majority, see slip op. at 19, or any other theory.

As the Supreme Court recently reiterated, "a 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." Soldal v. Cook County, Illinois, 121 L. Ed. 2d 450, 113 S. Ct. 538, 544 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984)); see also United States v. Bouffard, 917 F.2d 673, 675-76 (1st Cir. 1990); United States v. Soule, 908 F.2d 1032, 1034 (1st Cir. 1990). The burden of establishing a protected Fourth Amendment privacy interest rests squarely with the individual defendant. Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980); Bouffard, 917 F.2d at 675 (quoting Rakas v. Illinois, 439 U.S. 128, 131 n.1, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978)). Accordingly, for more than a decade, the Court has insisted that "the capacity to claim the protection of the Fourth Amendment depends . . . upon whether the person who claims [its] protection . . . has a legitimate expectation of privacy in the invaded place." Rakas, 439 U.S. at 143 (emphasis added); see also California v. Greenwood, 486 U.S. 35, 39-40, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988); Rawlings, 448 U.S. at 104-105 (1980); United States v. Salvucci, 448 U.S. 83, 93, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (1980); see generally United States v. Cruz Jimenez, 894 F.2d 1, 5 (1st Cir. 1990) ("Demonstration of a [legitimate expectation of privacy] is a threshold . . . requirement, and analysis cannot proceed further without its establishment.") (footnote omitted).

In the present case, where no crew member asserts a possessory or proprietary interest in the vessel itself,13 the establishment of a "legitimate expectation of privacy" turns upon two inquiries. First, we inquire whether there is any "longstanding social custom" which would substantiate a reasonable expectation of privacy on the part of the crew. See, e.g., Minnesota v. Olson, 495 U.S. 91, 98-99, 109 L. Ed. 2d 85, 110 S. Ct. 1684 (1990) (houseguest's expectation of privacy); O'Connor v. Ortega, 480 U.S. 709, 717-18, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1986) (public employees). Second, absent any such "longstanding social custom," we inquire whether the crew members had the right to exclude intruders from the area in or through which on-board access could be had to the property seized. Compare United States v. Morales, 847 F.2d 671, 672 (11th Cir. 1988) (recognizing crew's Fourth Amendment right to challenge search of hidden compartment, since authorities gained access to hidden compartment through crew's private quarters), with United States v. Lopez, 761 F.2d 632, 635-36 (11th Cir. 1985) (recognizing no Fourth Amendment right in hidden compartment, where authorities gained access through "common area" on deck of ship); United States v. Sarda-Villa, 760 F.2d 1232, 1236-37 (11th Cir. 1985) (recognizing no Fourth Amendment right in hidden compartment underneath seats in main cabin of vessel).

The contraband seized from the vessel in the present case had been hidden in a hollowed-out compartment within a structural beam running beneath the engine room. Unbeknownst to the Coast Guard, the secret compartment in the beam was accessible through the engine room.14 See, e.g., United States v. Marsh, 747 F.2d 7, 11 (1st Cir. 1984) (engine room as "common area"); United States v. Stuart-Caballero, 686 F.2d 890, 891-92 (11th Cir. 1982) (same), cert. denied, 459 U.S. 1209, 75 L. Ed. 2d 444, 103 S. Ct. 1202 (1983). Of course, it is clear that no "longstanding social custom" confers on crew members an "expectation of privacy" in the engine room or other "common areas" of a vessel. See United States v. Arra, 630 F.2d 836, 841 n.6 (1st Cir. 1980) ("areas subject to a safety inspection, such as the engine room . . . are places where . . . the crew of a vessel would have little if any expectation of privacy"); see generally, e.g., United States v. Green, 671 F.2d 46, 53 (1st Cir.), cert. denied, 457 U.S. 1135, 73 L. Ed. 2d 1352, 102 S. Ct. 2962 (1982) (noting diminished expectation of privacy on maritime vessels). It is possible, as the majority suggests, that the master may have an expectation of privacy from unauthorized official intrusions in the engine room, or elsewhere aboard the vessel. See slip op. at 13-14; see also United States v. Aikens, 685 F. Supp. 732, 736 (D. Hawaii 1988) (master's "total control is consistent with the recognition of a privacy expectation which emerges from such authority"), rev'd on other grounds, 946 F.2d 608 (9th Cir. 1990); see generally 1 Martin J. Norris, The Law of Seamen §§ 25:1 et seq. (4th ed. 1985 & 1993 supp.) (discussing scope of master's authority aboard ship). But crew members cannot base an asserted "reasonable expectation of privacy" on that of the captain, even though, as coconspirators, their subjective interests in preventing governmental access to the hidden compartment and its contents may have been entirely compatible with the captain's interests.15

Turning to the second inquiry, it is clear that admiralty law confers no right whatever upon crew members to exclude either the master, the Coast Guard, or one another, from common areas such as the engine room, let alone from the interior of a structural beam. The master alone possesses such a right, as the fiduciary representative of the vessel owner. See 1 Norris, supra, at § 14:8. Although the majority invokes traditional admiralty doctrines, such as the crew's "duty to maintain the security of the vessel," and the "authority to exclude individuals" therefrom, this "authority" is not "mutual," as the majority suggests, slip op. at 19. Rather, the crew's authority is derivative of the master's authority, and is exercised pursuant to his command, or the command of his delegate or lawful successor. See 1 Norris, supra, at §§ 14:8, 25:16. As the Supreme Court stated in Southern S.S. Co. v. N.L.R.B., 316 U.S. 31, 38, 86 L. Ed. 1246, 62 S. Ct. 886 (1942), "[the master] must command and the crew must obey. Authority cannot be divided. These are actualities which the law has always recognized."16

Contrary to the majority's suggestion, a "reasonable expectation of privacy" is not automatically inferable simply from the "small size and intimate nature" of the vessel or from the fact that the vessel "does not lend itself to exclusivity of internal spaces." See slip op. at 19. An automobile is much smaller than a 43-foot fishing boat, and lends itself even less to "exclusivity of internal spaces." Nevertheless, automobile passengers, qua passengers, have no "reasonable expectation of privacy" in the contents of the glove compartment, or the area beneath their seats. See, e.g., Rakas, 439 U.S. at 148-49; see also United States v. Lochan, 674 F.2d 960, 965 (1st Cir. 1982). The attempt to distinguish Rakas, on the basis of "obligations imposed by admiralty law," slip op. at 23, is unavailing. Crew members are aboard the vessel by arrangement with the master, as representative of the owner, see Norris, supra, at § 25:1, and the performance of their "obligations" is subject to the master's command. Indeed, crew members may be discharged by the master, or relieved of their "obligations" at any time, for disobedience to "lawful authority." See Norris, supra, at §§ 14:8, 23:1 et seq.

Finally, but not least important, the defendant crew members have never asserted a reasonable expectation of privacy based on an "independent duty to maintain the security of the vessel," or on "the small size and intimate nature of this sports-fisherman vessel," or on an amorphous "mutual authority to exclude individuals not members of the crew" from the vessel, the engine room, or the hidden compartment within. See slip op. at 19. Under governing law, therefore, the record is wholly insufficient to suggest, let alone establish, that the warrantless search of the secret compartment intruded on a "legitimate expectation of privacy" of either crew member. Rakas, 439 U.S. at 143. The best that can be said is that the tripartite theory of Fourth Amendment "standing" relied on by the court today, see slip op. at 19, is not implicated on the present record, even assuming its validity.17

The egalitarian concerns underlying the court's ruling that captain and crew must be accorded the same right to redress the challenged governmental intrusion are superficially compelling. As the court says, "logically the captain is the person most likely to be trusted with the knowledge of the presence of contraband, and is also the most likely leader of the criminal enterprise." Slip op. at 14. Thus, for the challenged evidence to be ruled excludable at the behest of the captain, but not the crew, appears unfair at first blush. But these concerns are illusory in the context of the appropriate Fourth Amendment inquiry: whether the individual crew members demonstrated a legitimate expectation of privacy in the invaded place or a proprietary or possessory interest in the evidence seized. The Fourth Amendment exclusionary rule simply is not designed to ensure "equitable" outcomes, but to safeguard expectations of privacy society is prepared to recognize as reasonable.18 To that end, the right to invoke the exclusionary rule is restricted to individuals who demonstrate an unlawful governmental intrusion upon an actual expectation of privacy which society is prepared to recognize as reasonable. See Rakas, supra ; Alderman, supra ; see also 4 Wayne R. LaFave, Search & Seizure, § 11.3(i) at 361 (2d ed. 1987) ("guilty persons, of course, are sometimes acquitted as a consequence of the suppression [of unlawfully seized evidence], but to conclude that still other guilty persons must likewise be acquitted because joined in crime or trial with the first group is to bestow upon them a 'windfall to which they are not justly entitled.'") (citation omitted).

I respectfully Dissent from the holding that the Fourth Amendment rights of the defendant crew members were violated.

1. The third crew member, Alfonso Molina, was acquitted at trial.

2. The parties stipulated that the vessel was subject to the jurisdiction of the United States.

3. Pursuant to 10 U.S.C. § 379(a) (Supp. 1992), Coast Guard officials may be assigned to duty aboard Navy vessels to perform drug interdiction. See United States v. Sandoval, 770 F. Supp. 762, 767 (D.P.R. 1991).

4. See United States v. Sandoval, 770 F. Supp. at 766 (stating Boarding Report of February 25, 1990 cited medicine cabinet on bulkhead as reason for reboarding; and rejecting the magistrate's finding that the water tank was a specific reason for the second boarding).

5. United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 108 L. Ed. 2d 222, 110 S. Ct. 1056 (1990), has no application because the vessel was a United States flag ship and the violation occurred within United States territory. Cf. United States v. Aikens, 947 F.2d 608, 613 (9th Cir. 1990).

6. Our holding does not rely on the "coconspirator exception" developed in the Ninth Circuit and recently denounced by the Supreme Court in United States v. Padilla, 123 L. Ed. 2d 635, 61 U.S.L.W. 4458, 113 S. Ct. 1936 (1993). The Court objected to the Ninth Circuit's reliance on aspects of the conspiratorial relationship to confer standing upon members of a conspiracy to challenge a stop and search of a vehicle. The Court emphasized that the fact that one coconspirator was a "communications link" among the members of the conspiracy and that other members "were in charge of the transportation of the drugs" were not relevant to the proper Fourth Amendment inquiry. As the Court has instructed, however, we look for a reasonable expectation of privacy since "the conspiracy itself neither adds nor detracts" from the interests necessary to challenge the legality of a search. Id. at 4459; see also United States v. Soule, 908 F.2d 1032, 1036-37 (1st Cir. 1990).

7. Of course, maritime law demands the utmost fidelity of seamen to the master and empowers the master to enforce his command by sanction. See Norris, supra, at § 14:8. The law bestows this authority because "the lives of passengers and crew, as well as the safety of ship and cargo, are entrusted to the master's care. Every one and every thing depends on him." Southern S.S. Co. v. NLRB, 316 U.S. 31, 38, 86 L. Ed. 1246, 62 S. Ct. 886 (1942). The master's authority serves to protect the vessel. See The Styria, 186 U.S. 1, 46 L. Ed. 1027, 22 S. Ct. 731 ; Norris, supra, at §§ 25:1 et seq. The duty to obey the master ensures that crews fulfill their obligation to safeguard the vessel. See, e.g., The C.P. Minch, supra ; The Condor, supra ; Norris, supra, at § 25:16.

8. 14 U.S.C. § 89(a) provides, in relevant part: The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or the operation of any law, of the United States, address inquiries to those on board, examine the ships documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be immediately pursued and arrested on shore, or other lawful appropriate action shall be taken . . . .

9. The "high seas" are those waters "beyond the territorial seas of the U.S. and beyond the territorial seas of any foreign nation." 21 U.S.C. § 955b(b).

10. The district court held that defendants had standing to object to the seizure of the boat, but that the seizure was justified by probable cause. 770 F. Supp. at 767. "We will uphold [a district court's] denial of the suppression motion if a 'reasonable' view of the record supports it." Soule, 908 F.2d at 1036 n.7.

11. As in Place, this possessory interest is accompanied by a "liberty interest in proceeding with [one's] itinerary." 462 U.S. at 708-710.

12. The government's interest in impounding a vessel for the purpose of a safety and document inspection when rough seas prohibit investigation at sea would be substantially higher than in this case. The contrast highlights the weakness of the government's interest here.

13. As the crew members presented no claim or evidence that their proprietary or possessory rights were violated by the seizure, we need not address separately their right to challenge the "seizure" of the vessel. See slip op. at 26-32. Though the right to contest a "seizure" does not invariably require that the moving party demonstrate a "reasonable expectation of privacy" in the place where the seizure occurred, see Soldal, 113 S. Ct. at 545-46, at the very least the moving party must demonstrate a "possessory interest" in the property seized. See id. at 543 (quoting Jacobsen, 466 U.S. at 113).

14. The secret compartment seems to have been situated so as to be accessible by means of a concealed "entrance way." Once the "entrance way" was unblocked, the packages of cocaine could be pulled from the hollowed-out beam by means of a string.

15. As the Court has stated time and again, the Fourth Amendment protects individual rights only, and no defendant may piggyback on a codefendant's expectation of privacy. See United States v. Padilla, 113 S. Ct. ___, 61 U.S.L.W. 4458, 4458 (May 3, 1993) (rejecting Ninth Circuit view that "a co-conspirator obtains a legitimate expectation of privacy for Fourth Amendment purposes if he has either a supervisory role in the conspiracy or joint control over the place or property involved in the search or seizure"); Alderman v. United States, 394 U.S. 165, 171-72, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969) (rejecting "derivative standing" for coconspirators under Fourth Amendment); United States v. Soule, 908 F.2d 1032, 1036-37 (1st Cir. 1990) (same); United States v. Bouffard, 917 F.2d 673, 675-76 & n.6 (1st Cir. 1990) (tracing the successive demise of various theories of Fourth Amendment "standing," including "automatic," "derivative," and "target theory" standing).

16. The mere fact that the master may not have exercised his authority to control access to a particular area aboard the vessel, see slip op. at 21-22, does not mean that the crew possesses an "objectively reasonable expectation" that the master cannot or will not do so in the future. In any case, the burden of proof remains squarely on the crew to assert that the master has renounced such authority. Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980); Bouffard, 917 F.2d at 675 (quoting Rakas v. Illinois, 439 U.S. 128, 131 n.1, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978)). The record contains neither argument nor evidence suggesting an actual renunciation or delegation of the master's shipboard authority in this case.

17. Since the government directly challenged defendants' "standing" below, a remand to permit the district court to consider the matter further would seem to be precluded. Compare Combs v. United States, 408 U.S. 224, 227-28, 33 L. Ed. 2d 308, 92 S. Ct. 2284 (1972) (Per Curiam) (directing remand where prosecutor had not challenged defendant's "standing"), with Rakas, 439 U.S. at 130-31 n.1 (refusing to remand where prosecutor had challenged "standing" at suppression hearing). See also Bouffard, 917 F.2d at 677-78.

18. On the other hand, of course, we recognize that the limited role and authority of crew members may at times be relevant to a "sufficiency of the evidence" challenge. See, e.g. United States v. Steuben, 850 F.2d 859, 869 (1st Cir. 1988); United States v. Bland, 653 F.2d 989, 996-97 (5th Cir. 1981), cert. denied, 454 U.S. 1055, 70 L. Ed. 2d 592, 102 S. Ct. 602 (1981).

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