REPORT AND RECOMMENDATION
THIS CAUSE is before the Court on defendant Jonathan Wesley King's Motion to Suppress Evidence and Statements (DE 40), which was referred to United States Magistrate Judge, Lurana S. Snow, for report and recommendation.
The defendants are charged with conspiracy to smuggle aliens into the United States and two substantive counts of alien smuggling. Defendant King seeks to suppress statements made on the ground that federal agents questioned him after he had requested an attorney. The motion also challenges the boarding and search of the defendants' vessel, but these claims were withdrawn by counsel for the defendant at the conclusion of the evidentiary hearing, which was conducted on December 12, 2011.
United States Customs Agent Antonio Giammillaro testified that he has been imposed by the United States Customs Service since 1998, prior to which he served in the United States Coast Guard for seven years. Currently Agent Giammillaro supervises the Key Largo Marine Unit, which patrols Customs waters and interdicts individuals who are engaged in smuggling contraband or human trafficking. The agent explained that Customs waters extend twelve miles from the United States coast.
During the early morning hours of September 9, 2011, Agent Giammillaro was operating a Customs vessel which was patrolling Angelfish Creek near Key Largo, Florida. He had with him a two-man crew: Customs Border Protection (CBP) Agents Babcock and Rodriguez.
The patrol vessel was equipped with lights on both sides and displayed the words "US Customs" on each side of the hull. It was moving at a speed of 35 to 40 knots.
Agent Giammillaro and his crew observed a catamaran moving at low speed in the creek. There were no other boats in the creek and Agent Giammillaro decided to turn his vessel around and investigate the catamaran. He made a U turn and approached the catamaran on its port side, matching the catamaran's speed. The Customs vessel's spot light and blue lights were turned on, and Agent Giammillaro observed two people on the deck of the catamaran.
Agent Giammillaro did not converse with the two individuals, but heard one of the crew members ask where the two men were coming from, where they were headed and how many people were on board the catamaran. These are routine questions which are asked when a vessel is stopped. Agent Giammillaro did not hear the answers, but his crew relayed to him that the two men were coming from Key West, that they were headed to a marina in Key Largo and that there were only two people on board. The two crew members then boarded the catamaran. None of the agents had his weapon drawn.
On cross examination, Agent Giammillaro testified that the area of Angelfish Creek was quite dark at the time, which was approximately 2:30 a.m.. He stated that the Customs boat was displaying the United States and Customs flags, but the flags were not independently lighted. When the Customs vessel first went past the catamaran, it is possible that the people on deck did not know that it was a government boat.
Agent Giammillaro related that at the time the catamaran first was spotted, it was traveling by motor power at approximately 7 miles per hour, with no appreciable wake. The agent did not observe anything illegal at that time, but was suspicious because this was the only boat in the area. The catamaran's running lights were on, and Agent Giammillaro believed that the sails were down. After the Customs vessel turned on its lights, the catamaran continued to move, but no one had requested that its engine be turned off.
Agent Giammillaro did not board the catamaran. Ten to fifteen minutes after the crew members boarded the vessel, the two persons on deck were taken into custody and placed on board the Customs boat. Defendant King was put back on the catamaran because the Customs agents were unable to start its engine. Agent Giammillaro decided to take the detainees and the catamaran to Bayfront Park in Homestead, Florida, a two to three hour journey. During that time, defendant King remained handcuffed on the catamaran. Insect spray was administered to him.
Although defendant King was not formally placed under arrest, Agent Giammillaro acknowledged that he was in custody and not free to leave from the time he was brought on board the Customs vessel. The defendant was advised that he was being detained for suspicion of alien smuggling. Since the defendant was to be turned over to agents from Homeland Security.
Agent Giammillaro related that the sun did not rise that morning until approximately one and one-half hours after they arrived in Homestead. Upon arrival, the defendant was placed on a bench under a canopy. The agent was certain that King's companion, whose name was Holz, had invoked his right to counsel, but he did not recall the defendant saying that he wanted a lawyer. Nevertheless, Agent Giammillaro did not hear any questions posed to the defendant.
CBP Agent Babcock testified that he has been employed as a Customs marine interdiction agent for the past three years. Prior to that he was employed for three years as an officer with Florida Fish and Wildlife. During the early morning of September 9, 2011, Agent Babcock was on routine patrol in Angelfish Creek. At that time, the creek itself was dark. The agent ...