CA1: Reduced expectation of privacy in hidden compartments of a ship hauling contraband

Defendant crewmember of a Honduran ship boarded five days out of San Juan lacked standing to contest the search of the vessel at the Port of San Juan. There is a reduced expectation of privacy in hidden compartments of a ship hauling contraband. United States v. Vilches-Navarrete, 523 F.3d 1 (1st Cir. 2008), district court’s holding posted here:

But even if Verdugo-Urquidez does not apply, Vilches lacks standing to challenge the search. It is “well settled that a defendant who fails to demonstrate a legitimate expectation of privacy in the area searched or the item seized will not have ‘standing’ to claim that an illegal search or seizure occurred.” United States v. Mancini, 8 F.3d 104, 107 (1st Cir. 1993) (citing Rakas v. Illinois, 439 U.S. 128, 138-48, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978)). In order to make such a showing, Vilches must show that he had both a subjective expectation of privacy and that society accepts that expectation as objectively reasonable. California v. Greenwood, 486 U.S. 35, 39, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988); cf. United States v. Scott, 975 F.2d 927, 928 (1st Cir. 1992). The burden of proving a reasonable expectation of privacy lies with Vilches. United States v. Sanchez, 943 F.2d 110, 113 (1st Cir. 1991). Vilches must demonstrate an expectation of privacy in both the item seized and the place searched. United States v. Salvucci, 448 U.S. 83, 93, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). Vilches cannot make that showing here.

“[T]he circumstances and exigencies of the maritime setting afford people on a vessel a lesser expectation of privacy than in their homes, obviating the usual fourth amendment requirements of a warrant.” United States v. Green, 671 F.2d 46, 53 (1st Cir. 1982). As the Government argues, Vilches had no reasonable expectation of privacy in the secret compartment in which the drugs were found. Cf. United States v. Cardona-Sandoval, 6 F.3d 15, 22 (1st Cir. 1993) (distinguishing “substantial vessels such as cargo ships and freighters” from “a small pleasure craft used for fishing” where captain had reasonable expectation of privacy).

Even if Vilches had a subjective expectation of privacy, it was not an objectively reasonable expectation. The district court rightly noted that “society would not recognize a justifiable expectation of privacy in a hidden compartment created for the express purpose of hiding illicit contraband. To hold otherwise would grant smugglers standing under the Fourth Amendment solely because they were careful in hiding their illicit merchandise.” Vilches-Navarrete, 413 F. Supp. 2d at 73-74; see also United States v. Sarda-Villa, 760 F.2d 1232, 1235 (11th Cir. 1985) (“[W]e are not willing to say that society is prepared to recognize a justifiable expectation of privacy solely on the basis of appellants’ efforts to secret the contraband. Drug smugglers cannot assert standing solely on the basis that they hid the drugs well and hoped no one would find them.”). As the Supreme Court said in Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001), “a Fourth Amendment search does not occur … unless ‘the individual manifested a subjective expectation of privacy in the object of the challenged search,’ and ‘society [is] willing to recognize that expectation as reasonable.'” Id. at 33 (quoting California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986)).

The search was valid in any event because the USCG’s “authority under 14 U.S.C. § 89(a) to stop and board a vessel on the high seas is quite broad.” Cardona-Sandoval, 6 F.3d at 23 (internal footnotes omitted). In the instant case, the USCG had consent from Honduras, the vessel’s flag country, to board the Babouth and to take it to a U.S. port to complete the search. The USCG also possessed the requisite “reasonable and articulable grounds for suspecting that the vessel or those on board [we]re engaging in criminal activity.” Green, 671 F.2d at 53.