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 The motion also challenges the boarding and search of the defendants' vessel, but these claims were withdrawn by counsel for the defendant at the conclusion of the evidentiary hearing, which was conducted on December 12, 2011.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 observed a sailboat with its running lights on. The Customs vessel also had its running lights on.
As the Customs vessel approached the catamaran, Agent Rodriguez identified the agents as United States Customs Officers, and asked the men on deck where they were coming from, where they were going and how many people were on board. Defendant King responded that they were coming from Key West, were headed for Gilbert's Marina in Key Largo and there were two people on board. Agents Rodriguez and Babcock then boarded the vessel. Defendant King produced his driver's license and the catamaran's registration.
Agent Babcock then asked King for permission to look in the two cabins, which King granted. The agent first went into the port cabin, where he found a nautical chart of the Bahamas. When he came back on deck, he asked King if there was anything else on the boat that he should know about, and King stated there was not. Agent Babcock then asked permission to look inside the starboard cabin, which King granted. When the agent entered the starboard cabin, he observed some human hair. He moved a blanket aside and found a woman who had been partially concealed by the blanket.
Agent Babcock then drew his firearm and asked the woman to show her hands. After she did so, the agent took her topside, patted her down for weapons and seated her on the deck. Agent Babcock then holstered his weapon, and asked King why he had not told him about the woman and inquired where she had come from. King replied that they had picked the woman up in Marathon and stated that he had not mentioned her because he was scared. Agent Babcock then re-drew his firearm and went back into the starboard cabin. There he found another individual, this one a male. The agent brought the man on deck as well. He did not converse with either of the two people who had been found in the starboard cabin because they did not appear to speak English. Both of them had passports from the country of Georgia.
King and Holz were then brought aboard the Customs vessel. They were placed in handcuffs and given life jackets. Subsequently the agents discovered that they needed King's help with the catamaran. Agent Babcock instructed King to sit in front of him so the agent could keep an eye on him. At one point, King asked permission to move his position because he was getting splashed. He was allowed to move, after which King voiced no other complaints. King was handcuffed at all times except when he started the catamaran's engine.
On cross examination, Agent Babcock testified that there had been nothing suspicious about the catamaran at the time he first observed it. The agent stated that he had made drug arrests in Angelfish Creek in the past. Agent Babcock also stated that he had not ...