REVISED DECEMBER 14, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA
JESSE JAMES SMITH; KEISHA L. SMITH
Appeals from the United States District Court
for the Eastern District of Louisiana
November 14, 2001
Before KING, Chief Judge, and DUHÉ
and BENAVIDES, Circuit Judges.
KING, Chief Judge:
Plaintiff-Appellant, the United States of
America, appeals the district court's suppression of evidence supporting
drug charges brought against Defendants-Appellees Jesse James Smith and
Keisha L. Smith. For the following reasons, we REVERSE the district court's
ruling granting Defendants' motion to suppress and REMAND for further proceedings.(1)
I. Factual and Procedural History
Defendants-Appellees Jesse James Smith and
Keisha L. Smith ("the Smiths") took a one-week cruise aboard the M/S Celebration
from the Port of New Orleans to several Caribbean destinations, including
Jamaica. This cruise, conducted by Carnival Cruise Lines, began on September
17, 2000 and continued until September 24, 2000. In order to expedite the
off-loading of hundreds of passengers when cruise ships return to port,
Carnival Cruise Lines regularly makes passenger manifests available to
the United States Customs Service ("U.S. Customs") once a ship is underway.
U.S. Customs searches the manifests for any indication that narcotics smugglers
In this case, U.S. Customs Inspector Mike
Powell ("Inspector Powell") reviewed the passenger manifest for the M/S
Celebration and noticed that the Smiths had profiles typical of narcotics
smugglers. Jesse Smith had a prior conviction and was on parole at the
time.(2) Keisha Smith had traveled by plane
to Jamaica just four months before the cruise. The Smiths paid cash for
their cruise tickets shortly before departing. Additionally, the ship's
Caribbean destinations, particularly Jamaica, are known source and transit
countries for narcotics.(3) After discovering
these facts, Inspector Powell pre-selected the Smiths for further investigation.
In the early hours of September 24, 2000,
the final day of the cruise, the M/S Celebration returned to New Orleans.
Its passengers had been instructed to leave their luggage outside their
rooms the night before and to vacate their rooms by 8:00 a.m. Inspector
Powell and other inspectors boarded the ship at 6:00 a.m. The inspectors
requested the records for the Smiths' cabin from the ship's purser's office.
The inspectors learned that although Jesse Smith's "sign and sail" account(4)
showed frequent use until the ship left Jamaica, the account remained inactive
after that time, indicating to inspectors that the Smiths remained in their
room.(5) Moreover, the Smiths placed a call
or calls costing $142.50 to a single number in Jamaica on the day the ship
arrived in Montego Bay.
After obtaining this additional information
from cruise records, the inspectors located the Smiths' cabin to conduct
a search. They knocked on the door and asked the Smiths to dress and exit
the cabin in order to allow a trained canine to search the room for drugs.(6)
The dog first indicated the presence of drugs on the bed and then in a
locker, where inspectors found four woven baskets. Coils containing 6.8
kilograms of cocaine were woven into the baskets. The search took approximately
two or three minutes.
On October 19, 2000, the Smiths were charged
with conspiracy to import at least five kilograms of cocaine on board a
vessel in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 963
and with possession with the intent to distribute at least five kilograms
of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §
2. Jesse Smith pled not guilty to the charges. On November 13, 2000, Jesse
Smith made a motion, joined by Keisha Smith, to suppress all the evidence
seized from the Smiths' cruise cabin. The Government argued only that reasonable
suspicion existed to support the search. After a hearing on the motion,
the district court found that the inspectors did not have reasonable suspicion
to support the search and granted the motion to suppress. United States
v. Smith, No. CRIM.A.00-339, 2000 WL 1838708, at *3 (E.D. La. Dec.
13, 2000). The Government timely filed notice of interlocutory appeal of
the district court's ruling.(7)
II. Standard of Review
In an appeal of a ruling on a motion to suppress,
this court reviews a district court's factual findings for clear error
and its legal conclusions de novo. United States v. Jacquinot, 258
F.3d 423, 427 (5th Cir. 2001). Whether there was reasonable suspicion for
a search, a legal conclusion, is reviewed de novo. Ornelas v. United
States, 517 U.S. 690, 699 (1996). At all times during this analysis,
we view the evidence in a light most favorable to the prevailing party,
i.e., the Defendants-Appellees. Jacquinot, 258 F.3d at 427. This
court reviews any arguments not raised before a district court at a suppression
hearing for plain error only. United States v. Kelly, 961 F.2d 524,
528 (5th Cir. 1992).
III. The District Court's Analysis
Generally, routine searches at U.S. borders,
or the functional equivalent of a border,(8)
are reasonable under the Fourth Amendment and do not require a search warrant,
probable cause, or even an articulable suspicion. Cardenas, 9 F.3d
at 1148; United States v. Montoya de Hernandez, 473 U.S. 531, 537
(1985). This court has held, however, that some extremely intrusive border
searches are not "routine" and must be predicated upon reasonable suspicion
of criminal activity. See, e.g., United States v. Sandler,
644 F.2d 1163, 1166 (5th Cir. 1981) (noting that border strip searches
are not "routine" and require reasonable suspicion"). Citing a case from
the Ninth Circuit(9) and a case from the
Eastern District of Louisiana,(10) the
district court found that "a search of a passenger's cabin aboard a ship
is not routine given the intrusive nature of the search." Smith,
2000 WL 1838708, at *1. "Accordingly, even in the context of a border search,
the search of private living quarters on a ship must at least be supported
by reasonable suspicion of criminal activity." Id. The district
court found that the U.S. Customs inspectors lacked reasonable suspicion
to support the search of the Smiths' cabin. Id. at *3.
On appeal, the Government has changed its
tune and now argues that because this is a routine border search, reasonable
suspicion is unnecessary. The Government failed to present this argument
to the district court. Under these circumstances, the district court's
application of the reasonable suspicion standard is subject to plain error
review. Kelly, 961 F.2d at 528 (adopting the plain error standard
when considering "an argument that the Government failed to raise at a
suppression hearing"). This deferential standard of review dictates that
before this court can correct an error not raised at trial, there must
be (1) an "error," (2) that is "plain," (3) that "affect[s] substantial
rights," and (4) that "seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings." United States v. Olano,
507 U.S. 725, 732 (1993) (internal citations and quotations omitted). While
it may well be the case that applying a reasonable suspicion standard to
the search of the Smiths' cabin at the functional equivalent of a border
is plain error, we need not decide the issue. Our determination that reasonable
suspicion existed in this case assures that the district court's error
did not affect the Government's substantial rights or the fairness, integrity,
or public reputation of judicial proceedings. Thus, the search of the Smiths'
cabin was valid, and the district court erred in suppressing the evidence
seized pursuant to that search.
IV. Reasonable Suspicion
Reasonable suspicion entails "some minimal
level of objective justification" that consists of "more than inchoate
or unparticularized suspicion or 'hunch,'" but less than the level of suspicion
required for probable cause. United States v. Sokolow, 490 U.S.
1, 7 (1989)(internal citations and quotations omitted). Reasonable suspicion
must be based upon "specific facts which, taken together with rational
inferences therefrom, reasonably warrant an intrusion." Cardenas,
9 F.3d at 1153. We consider the totality of the circumstances in determining
whether reasonable suspicion existed at the time of the search. Id.
In this case, U.S. Customs inspectors uncovered
numerous facts raising the suspicion that the Smiths were involved in narcotics
smuggling. First, the Smiths took a cruise bound for Jamaica. At the suppression
hearing, Inspector Powell testified that Jamaica is a transit point for
Colombian cocaine and heroin bound for the United States. Inspector Powell
also indicated that Jamaica is a source country for "quite a bit" of marijuana
that comes into the United States. Second, Keisha Smith traveled by air
to Jamaica just four months before she took the cruise that stopped in
Jamaica. Inspector Powell noted that frequent trips to the same source
or transit country within a short period of time are unusual. Third, although
an "overwhelming majority" of cruise passengers buy their tickets with
some type of credit instrument, the Smiths purchased their cruise tickets
with cash. Inspector Powell testified that such behavior is typical of
narcotics smugglers attempting to "hide a financial trail."
Fourth, the Smiths bought their tickets just
over two weeks before the date of departure. Most cruise passengers purchase
tickets well in advance to allow for sufficient planning. According to
Inspector Powell, the Smiths' "late or last-minute booking" is consistent
with narcotics smuggling because the narcotics business "is a very fluid
business - business plans aren't set firm." Fifth, Jesse Smith had an "extensive
criminal history" that included "arrests and convictions" and was on parole
at the time of the cruise. Because foreign travel is generally a violation
of parole, Inspector Powell surmised that Jesse Smith's purpose in taking
the cruise "must have been pretty significant, which could have been narcotics
smuggling." Sixth, just before docking in Montego Bay, the Smiths placed
an unusual "shoreside" call or calls costing $142.50 to a single number
in Jamaica. Inspector Powell felt the call was "very significant" and was
possibly "a contact with a provider of narcotics shoreside."(11)
Finally, Inspector Powell argues that the
Smiths' "sign and sail" account raises suspicion. Before docking in Montego
Bay, Jamaica, the account "showed a consistent pattern of behavior" similar
to that of most cruise passengers. The "sign and sail" account documented
that the Smiths purchased drinks from various bars throughout the ship
at regular intervals. After leaving Montego Bay, the Smiths' "sign and
sail" account showed no further activity, suggesting to inspectors that
the Smiths remained in their room for the duration of the cruise. In cross-examination,
Inspector Powell admitted that after leaving Montego Bay, the balance in
the Smiths' "sign and sail" account had dropped to zero. The district court
states that this fact is "devastating to the Government's position" because
"the most likely inference [is] that all activity ceased on the account
after September 20th because the deposited funds were exhausted." Smith,
2000 WL 1838708, *3. We must draw all reasonable inferences in favor of
the Smiths, and the zero balance on the account reasonably explains the
lack of further activity on that account. Thus, the fact that account activity
ceased after leaving Jamaica does not raise any suspicion and does not
support our conclusion of reasonable suspicion. However, because the inspectors
would have had reasonable suspicion even if the Smiths had continued normal
use of the "sign and sail" account for the duration of the cruise, we do
not find the zero balance "devastating to the Government's position."
In United States v. Sokolow, 490 U.S.
1 (1989), the Supreme Court confronted facts similar to those in the instant
case. In Sokolow, the defendant and his accomplice made a round-trip
flight to Miami from Honolulu with tickets purchased the same day of the
flight. Id. at 4. After the defendant paid $2100 for the two tickets
from a roll of $20 bills, the airline ticket agent notified the Honolulu
Police Department of the suspicious transaction. Id. Further investigation
revealed that the defendant traveled under a name that did not match the
name under which his telephone number was listed, that he stayed in Miami
for only forty-eight hours, that he appeared nervous during his trip, and
that he and his companion did not check any of their luggage. Id.
at 3. These facts, coupled with the knowledge that Miami is a source city
for illicit drugs, led Drug Enforcement Administration agents to search
the defendant's luggage when he returned to Honolulu. Id. The search
yielded 1063 grams of cocaine. Id. Reversing the Ninth Circuit,
the Supreme Court found that although "[a]ny one of these factors is not
by itself proof of any illegal conduct and is quite consistent with innocent
travel[,] . . . taken together they amount to reasonable suspicion." Id.
Several of the suspicious facts in this case
mirror those involved in Sokolow, including the Smiths' last-minute
purchase of cruise tickets with cash and the notoriety of their Jamaican
destination as a narcotics source. Although each action taken by the Smiths,
standing alone, could be consistent with innocent behavior, all of the
actions taken together justified Inspector Powell's "very strong suspicion"
that the Smiths were involved in narcotics smuggling. Inspector Powell
also based his conclusions upon nine months of similar work. The Supreme
Court has noted that a trained investigator may be "able to perceive and
articulate meaning in given conduct which would be wholly innocent to the
untrained observer." Brown v. Texas, 443 U.S. 47, 52 n.2 (1979).
Thus, Inspector Powell's experience with locating narcotics on cruise ships
further substantiates his suspicions.
For these reasons, we find that the totality
of the circumstances in this case creates a reasonable suspicion of criminal
activity. Thus, assuming arguendo that reasonable suspicion was required,
the search of the Smiths' cabin was valid. The district court's suppression
of all evidence seized pursuant to the search was erroneous.
We REVERSE the district court's ruling granting
the Smiths' motion to suppress the evidence and REMAND for further proceedings.
Benavides, Circuit Judge, concurs in the judgment
1. Although the motion
to suppress was originally filed only by Defendant-Appellee Jesse Smith,
counsel for Defendant-Appellee Keisha Smith advised the district court
at the start of the evidentiary hearing of her intention to join in the
2. When viewing the passenger
manifest, the inspectors surmised that Jesse Smith left the country in
violation of his parole but did not confirm this until later.
3. The M/S Celebration
also stopped in Grand Cayman and Cozumel, Mexico.
4. Cruise companies commonly
employ "sign and sail" accounts to simplify the process by which passengers
pay for their drinks, souvenirs, and special activities during the cruise.
At the beginning of the cruise, passengers fund the accounts with a cash
deposit or a credit card and then charge beverages and other expenses to
the account during the voyage.
5. The record of Keisha
Smith's "sign and sail" account, if it existed, was never viewed by the
inspectors and is not in the court record.
6. Neither party asserts
that the Smiths consented to the search of their cabin. Thus, we do not
consider the issue.
7. Defendant-Appellee Keisha
Smith has adopted on appeal the arguments submitted by co-defendant and
co-appellee Jesse Smith.
8. The first port where
a ship docks after arriving from a foreign country is the "functional equivalent"
of the border. United States v. Cardenas, 9 F.3d 1139, 1147-48 (5th
Cir. 1993). The parties do not dispute that the search of the Smiths' cabin
was a border search.
9. United States v.
Alfonso, 759 F.2d 728, 738 (9th Cir. 1985) (stating that "the search
of private living quarters on a ship should require something more than
10. United States v.
Cunningham, Crim. A. No. 96-265, 1996 WL 665747, at *3 (E.D. La. Nov.
15, 1996) (concluding that the proper standard to apply to a search of
a cruise cabin at a border is reasonable suspicion).
11. The U.S. Customs inspectors
never attempted to ascertain to whom the call or calls were made.