ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before Gibbons, Weis and Sloviter, Circuit Judges.
Ronald S. Demanett, Pennell L. O'Dell, Jr., Charles P. Gombrewicz, Ernesto Bolivar Guerrero-Chaguay, and Clemente Castillo-Yepes appeal from judgments of sentence for violations of various statutes prohibiting the importation of marijuana. They contend that the judgments of sentence must be reversed because all the evidence used against them resulted from an unlawful search and seizure, and should have been suppressed.*fn1 We affirm.
On March 21, 1979, the Coast Guard Cutter POINT FRANKLIN, commanded by Lt. John H. Olthuis, was the Duty Patrol Boat for the Southern New Jersey Coast, the Delaware Coast, and Delaware Bay. At 4:30 p. m. while the POINT FRANKLIN was proceeding east at a point five miles outside Delaware Bay, Olthuis observed to the north a 72 foot white commercial fishing boat, headed westerly into Delaware Bay at a speed of 2 to 3 knots. Approaching to within 150 yards, Olthuis discerned the name KRISTEN JANE and the home port "Charleston, South Carolina" on the boat's stern. He noted that it was rigged for net trawling for fish, which was uncharacteristic of fishing boats operating in that area, most of which trawled for shellfish with different gear. He also observed that the trawl doors were lashed in place on the deck, that the deck was clean, and that the trawling gear appeared not to have been used for a long time. From his experience Olthuis thought the 2 to 3 knot speed was uncharacteristicly slow for a fishing vessel heading to port with a catch of fish at that time of day.
Olthuis reported his observations to the Coast Guard station at Cape May, New Jersey, and redirected the POINT FRANKLIN to its original easterly heading away from the KRISTEN JANE. He reconsidered, however, and radioed a request to the Cape May station for an EPIC check on the KRISTEN JANE. An EPIC check is an inquiry to the El Paso Intelligence Center, at which federal law enforcement agencies operate a computer data bank containing information on known and suspected drug smugglers. While awaiting a response to this request Olthuis ordered the POINT FRANKLIN to reverse course and follow the KRISTEN JANE. Shortly thereafter the Cape May station informed him that the EPIC check on the KRISTEN JANE was negative. The radio conversation between the Cape May station and the POINT FRANKLIN follows.
Cape May Coast Guard Cutter Point Franklin, this is the Group Cape May, over.
Pt. Franklin Group Cape May, Cutter Point Franklin.
Cape May Roger, we've checked all our (lists) we come up negative, EPIC comes up negative also.
Pt. Franklin Roger, chief, I've just got a feeling about this guy, he's out of South Carolina, I've never seen him down in this area before. Uh, he's a real slow ______ into Delaware Bay; uh, I don't know. I just don't know where he would be going . . .
Cape May Uh, Pt. Franklin, this is Group Cape May. If you have any doubts, why don't you go ahead and board them and see maybe you got a problem because you're proceeding so slowly.
Pt. Franklin Roger. I'll follow them into Delaware Bay. My zodiac, I can't use it yet because I don't have a lifting ______ that's on the old ______ which we're hopefully getting tomorrow, so I'm going to have to pull up along side of him and I'm going to follow him into where it's a little calmer.
Cape May Uh, Roger. Keep us advised. We'll stay on 381, ______, and, uh, keep us ...