CA11: Protective sweep applied to boat cabin in illegal fishing investigation

Officers had reasonable suspicion that the occupants of a boat were involved, at the minimum, in lobster smuggling. They got to the boat as it was being removed from the water, and the persons on the boat were excessively nervous. The defendant conceded probable cause for the stop, and the mobility of the boat made it subject to search. The officer looked in the cabin of the boat as a protective sweep, and 13 illegal aliens were found. United States v. Caraballo, 595 F.3d 1214 (11th Cir. 2010):

When taken in concert, these circumstances yielded a reasonable ground to believe that the defendant and others had unlawfully obtained lobsters and violated the Florida fisheries laws. We add that the exigency of the situation — Caraballo was about to leave with the boat and any poached lobsters or fish would be easy to dispose of — made it impossible to seek a warrant in due course. See Carroll v. United States, 267 U.S. 132, 153, 45 S. Ct. 280, 69 L. Ed. 543, T.D. 3686 (1925) (stating that in conducting “a search of a ship, motor boat, wagon, or automobile … it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought”); see also California v. Acevedo, 500 U.S. 565, 569, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991) (citing Carroll and explaining “[c]ontemporaneously with the adoption of the Fourth Amendment, the First Congress, and, later, the Second and Fourth Congresses, distinguished between the need for a warrant to search for contraband concealed in a dwelling house or similar place and the need for a warrant to search for contraband concealed in a movable vessel.”) (internal quotation marks and citation omitted); United States v. Bain, 736 F.2d 1480, 1488 (11th Cir. 1984) (“[T]he mobility of the vessel was an exigent circumstance justifying an immediate search.”).

Third, and finally, once on board the vessel, Officer Andollo lawfully conducted a protective sweep that included opening the cabin door to ensure that there were no additional persons on board who could cause him harm. In Maryland v. Buie, the Supreme Court held that a protective sweep may be undertaken lawfully pursuant to an in-house arrest where the officer “possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” 494 U.S. 325, 337, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). “A ‘protective sweep’ is a quick and limited search of premises …. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” Id. at 327; see also United States v. Miller, 430 F.3d 93, 99 (2d Cir. 2005) (agreeing with the First, Seventh, Fifth, Sixth, one panel of the Ninth, and D.C. Circuits that protective searches may be undertaken even without an arrest warrant); see also United States v. Martins, 413 F.3d 139, 150 (1st Cir. 2005) (“We hold … that police who have lawfully entered a residence possess the same right to conduct a protective sweep whether an arrest warrant, a search warrant, or the existence of exigent circumstances prompts their entry.”); Leaf v. Shelnutt, 400 F.3d 1070, 1087-88 (7th Cir. 2005) (“[I]t was not necessary for the officers to have made an arrest in order for their search of the apartment to be justified; the only question is whether the search was objectively reasonable.”); United States v. Gould, 364 F.3d 578, 584 (5th Cir. 2004) (en banc); United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001) (“[T]he principle enunciated in Buie with regard to officers making an arrest — that the police may conduct a limited protective sweep to ensure the safety of those officers — applies with equal force to an officer left behind to secure the premises while a warrant to search those premises is obtained.”); United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993); United States v. Patrick, 959 F.2d 991, 996-97, 294 U.S. App. D.C. 393 (D.C. Cir. 1992) abrogated on other grounds by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); but see United States v. Torres-Castro, 470 F.3d 992, 997 (10th Cir. 2006) (recognizing that, unlike the Tenth Circuit, “a majority of circuits have extended the protective sweep doctrine to cases where officers possess a reasonable suspicion that their safety is at risk, even in the absence of an arrest”).