REPORT AND RECOMMENDATION
THIS CAUSE is before the Court on the defendant's Motion to Suppress (DE 28), which was referred to United States Magistrate Judge, Lurana S. Snow, for report and recommendation. The defendant is charged by indictment with attempted re-entry into the United States after deportation, in violation of 8 U.S.C. § 1326 (a) and (b)(2). He seeks to suppress statements made without Miranda warnings during the United States Coast Guard (USCG) boarding of a vessel he was operating, and to suppress evidence seized from the vessel. The Government responded to the motion (DE 38), and an evidentiary hearing was conducted on January 3, 2012.
USCG Officer Roberto Narvaez testified that he is a Marine Officer Specialist, Second Class, with duties including training officers of the Coast Guard and other agencies, and serving as a boarding officer and Spanish interpreter. He has been with the USCG for fifteen years, has been stationed in Florida for the past seven years and has participated in 1,742 boardings.
Officer Narvaez recited the standard questions which are posed to the captain or master of a vessel on all boardings: (1) Do you have any weapons on board? (2)What was your last port of call? (3) What is your next port of call? (4) Of what country are you a citizen? (5) How many people are on board? (6) What was the purpose of your voyage? (7) Was the voyage successful or did you experience problems? After obtaining answers to these questions, the boarding officer then checks the vessel documents, including registration, so that it can be determined whether the vessel has been stolen. Next, an Initial Safety Inspection is conducted, where the boarding team checks for fire, flooding and electrical or structural hazards. Finally, the team ascertains whether the required safety equipment is on board.
On October 1, 2011, Officer Narvaez was on temporary assignment to the USCG Cutter Seneca, with a home port of Boston, Massachusetts, on routine patrol in international waters between Key West, Florida and Cuba. He was part of a specialized "non-compliant" boarding team, consisting of USCG officers with advanced training and experience in boarding vessels involved in drug smuggling, human trafficking and other criminal violations. At approximately 11:50 a.m, a boarding team was assembled to intercept a vessel that had been observed entering Cuban seas and had been moving erratically. The only information about the vessel was that it was a low-profile fast boat, and nothing was known about the persons on board. The captain of the Seneca instructed the boarding team to head out to the vessel's location (without entering Cuban waters), intercept the vessel and ascertain the nationality of the vessel and the identity of any persons on board.
Officer Narvaez and the members of the team boarded a small boat called an "over the horizon" or "OTH." The OTH was clearly identified as belonging to the USCG, as was the clothing worn by members of the five-person boarding party. Traveling at approximately 40 knots, it took them about two hours to reach the vessel, which was close to the coast of Cuba and in sight of Cuban land. When Officer Narvaez first sighted the vessel, he could see that it was white, but could not tell for sure how many people were on board. As the OTH got within 200 yards of the vessel, Officer Narvaez determined that there were two people on board and they had seen the OTH. Based on the intercept course that had been taken, the USCG markings on the OTH would have been visible to the persons on the vessel.
As the OTH approached, Officer Narvaez used a loud hailer to call, "U.S. Coast Guard, stop your vessel," twice in English. When nothing happened, he called out the same words in Spanish. After the second time in Spanish, the vessel began to slow down. It was being operated by the defendant. Prior to boarding, Officer Narvaez instructed the two men on board to put their hands up and asked if they had any weapons on board. Both men complied and stated that they had no weapons. Officer Narvaez told them to move to the port side of the vessel, and then he and Officer Dennis Ordyna boarded. Both officers were armed, but neither had drawn his weapon.
Once on board, Officer Narvaez addressed both men in Spanish. He asked to see their identification, which they produced. He then asked for their last port of call, and the defendant responded that it was the Miami/Homestead area. The officer asked for the next port of call, and the defendant responded Key West. Officer Narvaez then asked the purpose of the trip, and the defendant replied that they had been fishing. The officer observed that the only fishing equipment on board were some old fishing poles which appeared to have been unused for a few months. In response to a question about when they left Key West, the defendant stated that it was two days prior. When asked where he had been for the past two days, the defendant also stated that he had come from "back there," indicating the land behind him. Officer Narvaez verified that the defendant was pointing to Cuba. At that time, the defendant also stated that he had been arrested in the past for smuggling aliens.
Officer Narvaez observed a number of items in plain view on the vessel, including a large number of fuel barrels; night vision goggles, which were not normally used by civilians; a global positioning system device (GPS); outboard engines, and a transom area that appeared to have been altered. After asking the standard "pre-boarding" questions, Officers Narvaez and Ordyna first went to the cuddy cabin area to check for flooding. The doorway was obstructed by 50-gallon fuel drums, which was a safety violation. Also in that area was a "hook and climb" ladder, a type not usually found on vessels, which is used for hasty boarding.
Officer Narvaez next checked the engine area. Upon lifting the transom, he found six to eight fuel drums, all completely full. The officer asked the defendant why he needed so much fuel. The defendant responded that the boat used a lot of gas, but Officer Narvaez knew that the fuel on board was far more than was needed for the engines' size. In the center console, there were three more 15-gallon fuel drums. Fuel drums also were found in the compartment on the port side of the vessel where the two subjects were standing, with more on the other side. Based on the total quantity of fuel, Officer Narvaez believed the vessel was a "floating bomb."
The officer also noticed wires hanging off the engine plate, and asked the defendant if he had been having mechanical problems. The defendant replied that he had. When asked who owned the vessel, the defendant stated that it belonged to a friend whom he had known for about seven years, but he did not know the man's name. However, the officer found the owner's name on the vessel's registration.
Officer Narvaez testified that he and Officer Ordyna stayed on the vessel for about three hours because they had to wait for the arrival of the Seneca, which traveled at a much slower rate of speed than the OTH. He explained that they needed better communication capability, boarding forms and a camera to photograph the safety violations. Ultimately, the defendant was not cited for any safety violation, but was issued a warning for entering Cuban territorial waters. Officer Narvaez stated that he never intended to arrest the defendant for entering Cuban waters. The defendant was neither placed under arrest nor told he was under arrest, and was not restrained in any way. He was able to move about the vessel and had access to food and water. Officer Narvaez' weapon was never drawn. Although Officer Narvaez eventually learned that Customs and Border Protection (CBP) was interested in the defendant's vessel, but he did not believe that the defendant was going to be arrested. However, the officer did believe that the vessel had been outfitted for smuggling, based on the extra fuel, the night vision goggles, the hook and climb ladder, the defendant's statement that he had been in Cuban waters and the defendant's prior arrest for smuggling Cubans.
On cross examination by counsel for the defendant, Officer Narvaez testified that he is a native of El Paso, Texas and speaks Spanish fluently. He did not know whether the defendant's vessel had been under law enforcement surveillance prior to sighting by the Coast Guard. The decision to intercept the vessel was based on its entry into Cuban waters, and the Coast Guard also wanted to ascertain how many vessels were in the area. Once the vessel was intercepted, it was necessary to find out the vessel's home port and the nationality of those on board.
Officer Narvaez stated that as the radio operator, he was the only member of the boarding team who was in direct communication with the Seneca. He radioed to the cutter the information contained in the vessel's documents, and the name of the vessel, which was the Gatina Maria. Fifteen or twenty minutes later, the officer was instructed to ascertain if the operator was the vessel owner or if the owner was on board.
Officer Narvaez acknowledged that the defendant was never told that he was free to go. The defendant was advised that the officers would remain on board because of the fuel hazard. Also, the vessel did not appear to be operational. Officer Narvaez was not planning to seize the vessel; it was towed by another cutter because they were headed back to port.
Officer Narvaez explained that the Gatina Maria had been running on only one of the twin engines. The area around the key had been popped off, which prompted him to ask if there had been engine trouble. The officer stated that after he provided the names of the two men to the Seneca, he received no further instructions. He did not know who made the decision to bring the vessel and its occupants to Key West. Officer Narvaez believed that the defendant could have gone on his own, but Coast Guard personnel were obliged to stay on board because of the hazard posed by the extra fuel, which converted the vessel into something akin to a loaded gun. Officer Narvaez added that he would have brought the vessel into port based solely on the amount of fuel on board.
Eventually Officer Narvaez learned that the vessel would be towed by another cutter, the Sawfish. A small boat from the Sawfish arrived with another boarding party. For safety reasons, they decided to take the defendant off the Gatina Maria. Officer Narvaez was informed that the vessel would be taken to Key West. The defendant asked the officer when he would be allowed to continue his voyage, and Officer Narvaez responded that he could do so as soon as the fuel was removed. The defendant wanted to know if he could continue ...