Busted in Bermuda - Customs Officials Extort Money From Cruise Passengers By Unconstitutional Drug Searches

This year we have been reporting on the high number of arrests by the Bermuda customs officials of cruise ship passengers for small amounts of marijuana. 

A Pattern of Invading Cruise Cabins and Shaking U.S. Passengers Down for Money 

Bermuda Flag - Drug BustsAll of the cases fit into a pattern. 

After the cruise ship arrives in port, the passenger leave their cabins and go ashore for sightseeing or to purchase souvenirs from the local vendors in port.  While the passengers are ashore, the Bermuda customs officers will board the cruise ship with sniffer dogs and sneak into the passengers' cabins with the drug dogs.  If they find pot, usually in an amount for 6-8 cigarettes or so, they will wait for the passenger to return to the cruise ship and arrest them.  They will then haul the passengers ashore and jail them. 

When the case is finally called, the Magistrate will lecture them and give them the option of 30 to 50 days in jail or paying a fine of $1,000 to $3,000 and leave the country.  The passengers always pay the money and then fly back to the U.S rather than spend a month or two in jail.

In none of the cases we have reported on has there been a search warrant to enter the cabin.  Nor has there there been any indication that the customs officers had probable cause to invade the private cabins of the passengers.    

You can read about the individual cases in our articles:  Are You a Stoner? Don't Cruise to Bermuda!, Cruise Ships & Drug Smuggling and High Times on the High Seas - Cruise Industry Struggles with "Reefer Madness"   The press in Bermuda loves to cover these cases and identify the U.S.passengers and even photograph them, as you can read about here.   

I have always scratched my head reading about these shake downs.  Why don't the defense lawyers move to dismiss the charges because the pot was seized after an illegal entry where there was no probable cause to enter the private cabins nor did the authorities bother to obtain a search warrant?  In the U.S., a case like this would be thrown out in a New York second and the prosecution chastised.

Does Bermuda's Constitution Prohibit Illegal Search and Seizures? 

Cruise Ship Drugs - BermudaWhen I was 15 years old and taking my first constitutional law course (yes, my parents sent me to a great prep school), I read for the first time something called the Fourth Amendment to the U.S. Constitution:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Does Bermuda have a similar provision in a constitution to protect its people from random searches and seizures by the police?

This morning, I seem to have found my answer while reading an article in the BDA Sun last Friday entitled "Cruise Passengers Fined for Cannabis After 'Unconstitutional' Search."

The article covers the story of two women in their fifties from New York who went ashore to visit the sights in Bermuda after the Norwegian Jade cruise arrived in port.  The customs officers entered the cabin the women shared without their knowledge or permission, and without a search warrant or good reason.  They found eight grams of cannabis.  That's about enough weed for ten cigarettes.   

The customs officers arrested the two women and took them to jail.  They were booked for importing the weed into Bermuda, even though they went ashore without the pot and had no intention of taking it ashore and even though the customs officers had to go onto the ship, trespass the ladies' private cabin and root around to find it.

Senior Magistrate Archibald Warner - Bermuda - Cruise Pot"It's Only A Matter of Time Before You All Get Sued"

The newspaper reports that Senior Magistrate Archibald Warner (photo left) fined the two ladies $1,000 each but he did not appear to be particularly happy about doing so.  Here is the exchange between the Magistrate and the prosecution taken verbatim from the local newspaper:

“I see on all these summaries of evidence that customs officers are carrying out random searches on people’s rooms."

“Who told customs officers they can carry out random searches?”

Crown counsel Tawana Tannock told Mr. Warner she wasn’t instructed on that question.

Mr. Warner then said: “Can the police or customs just go in anybody’s room whether hotel or ship and search them?”

Ms. Tannock said: “I can’t speak to that.”

The magistrate replied: “Like a hotel room or somebody’s house, people pay good money for the cruise room."

“So you all may be looking to get sued."

“I mean, if they’re guilty, they’re guilty by the fine for the simple possession is $1,000.”

The Magistrate told Ms. Tannock customs officers should consider or reconsider the search method.

Mr. Warner continued: “I can tell you that there is no such provision giving anybody such authority."

NCL Cruise Ship - Drug Bust - Bermuda“It’s unconstitutional, it would be unconstitutional."

“It’s only a matter of time before you all get sued.”

Bermuda has probably netted $100,000 playing this monkey game with cruise passengers over the past several years.  Are there any competent criminal defense lawyers who can take a hint from Senior Magistrate Warner and raise a peremptory challenge to these type of illegal search and seizures?  

Are there any independent advocates on the island willing to sue the customs officials and prosecutors for what is patently an ongoing unlawful scheme to threaten cruise passengers with jail time in order to reach into their pockets for money?  

August 19, 2011 Update:

The Bermuda Sun reports that a 48 year old US tourist after Customs officers from Bermuda entered his cabin.  The cruise passenger was present and admitted having six grams of cannabis in the cruise ship safe. Customs officers claim that they searched the cabin on the Celebrity Summit in Dockyard on August 17 after receiving an unidentified "tip-off."

Magistrate Archibald Warner, who we reported on above questioning the legality of warrantless random searches, fined the passenger $1,000.

 

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Comments (12) Read through and enter the discussion with the form at the end
Guy Murray - August 15, 2011 12:10 PM

This is an amazing story, yet another on CLN that rarely sees air time in the U.S. press.

Minimally, cruise lines should warn passengers of this risk prior to docking in Bermuda.

We inspect our cabin upon arrival, and regularly find stuff left behind by previous cabin occupants, missed by housekeeping in the turnaround day crunch. Most likely locations are under beds or in cabinet space under drawers.


If a previous guest's contraband should be left behind, then found by a Bermuda sniffer dog, what is the credibility of an "It's not mine" defense? :-(

Ken - August 15, 2011 12:16 PM

Seeing that the magistrate questioned the method employed by Customs Agents and stated that "there is no provision giving anybody such authority" that he stated about the method of the searches & seizures: "Its unconstituational, it would be unconstituational", couldn't he have thrown out this particular case?

Jason - August 15, 2011 5:08 PM

Jim, I am a bit confused that you are not aware that U.S. CBP utilizes that same tactic when a ship comes back into a U.S. port. In my thirty something cruises, on more than one occasion I have seen the CBP folks let into cabins by the cruise line personnel and taken the dog in with them. They come out a few minutes later and move to the next cabin. Search authority is derived from federal statutes and regulations, including 19 C.F.R. 162.6, which states that, “All persons, baggage and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection by a CBP officer." I would assume Bermuda has something similar - would they not?

Jim Walker - August 15, 2011 5:42 PM

Jason: The CFR you mentioned pertains to search of "persons, baggage and merchandise."

I understand that the customs agents have the right to search persons and look into their bags and other items when are coming into the customs area of the U.S. The customs agents in the U.S. rountinely seize laptops with child porn, drugs from baggage (like Big Boi last week), drugs in baloons swalloed by drug mules, and more power to them.

But I don't see how this CFR pertaining to "persons, baggage and merchandise" applies to cabins.

I also don't see how the CFR for border inspections (19 U.S.C. 1467) provides a basis to go into a private cabin on a cruise ship either.These cases seem to support my opinion, commentary below:
http://obtainingforeignevidence.blogspot.com/2008/09/search-of-cabin-on-cruise-ship-required.html

https://www.judicialview.com/Court-Cases/Civil-Rights/Grounds-for-Customs-Search-of-Cruise-Ship-Cabin-Determined/Issue-of-Whether-Search-Requires-Reasonable-Suspicion/12/4951

http://www.philadelphiacriminaldefenselawyerblog.com/2008/12/unlike_routine_border_inspecti.html

But this case went the other way:

https://www.lexisnexis.com/community/emergingissues/blogs/mealeys/archive/2010/02/19/warrantless-search-of-cruise-passenger-s-cabin-deemed-routine-border-activity.aspx

Thanks for your comment. Jim Walker

Jim Walker - August 16, 2011 4:34 PM

Consider this information from an on line Bermuda information site:

http://www.bermuda-online.org/illegalimports.htm

There is a total zero tolerance policy and crews of cruise ships and drug couriers are known as major importers. Bermuda Police and Customs work very closely with their drug enforcement counterparts in the USA and elsewhere. Despite warnings, arrests and convictions happen every day. Detection systems are now very sophisticated and include drug-sniffing dogs employed for the task at the airport and on cruise ships. Penalties for not complying are very harsh in Bermuda for even the smallest amount, with separate criminal charges for importation, possession, intent to supply and more - and with substantial repercussions elsewhere as well, as their names, passport numbers, social security numbers, and more are circulated to overseas authorities.

Cruise ship passengers are strongly recommended to read, learn, inwardly digest and pay strict heed. It applies to those who arrive by any means - air or cruise ship or yacht. The full list of the hundreds of banned narcotics are in the Bermuda Government's Misuse of Drugs Amendment Act 2005. It is not an excuse if you fail to make yourself familiar with the contents of the full list. Police and Customs officers routinely search and often act, either for no specific reason or on tips from passengers and crew. They work closely with staff on all the cruise ship lines serving Bermuda and when necessary call on the services of their Cruise Ship Enforcement Team. Penalties are very severe for those who ignore this warning. Locals, tourists and visitors are not given any breaks. UK European, USA and Canadian laws don't apply in Bermuda. Excuses that the drugs are needed for medical reasons are spurious and not accepted. Claims they invariably offer that they do not have the money to pay the fines are routinely ignored. They are remanded in custody or are put on bail with their transportation tickets impounded until they do. One reason officials in Bermuda are so tough is because fines are revenue to the Bermuda Government and the Customs Department is the source of the biggest of all revenue departments of the Government. So, unlike many other countries where Customs procedures appear to be relaxed and tolerant, the Bermuda system is neither. The discovery rate is over 70%. Cruise ships, their crews and passengers are automatically suspected now, especially since a huge stash of over 15 kilos of cocaine - valued locally at over US$4 million - were seized from a cruise ship recently.

There have been many cruise ship and other visitors, crew members and others caught with drugs. They are caught via drug-sniffing dogs when ships are on the high seas in international waters, by Bermuda Customs and related officials, with the full knowledge and cooperation of American authorities, or on arrival by air. They are empowered by the cruise ship owners concerned to search visitors' accommodation on the ships, with their dogs - and do it very efficiently. Those arrested are charged, remanded in custody and possibly face several serious charges including importation with intent to supply. When visitors are caught and convicted of having illegal narcotics, they may lose their scheduled airline or cruise ship departure dates because they will have to remain in Bermuda until their court cases are scheduled, 5 days or more later; will not be able to apply for refunds; will be officially deported; and will have files on them given to police forces in other countries. Some complain, thinking their constitutional or other rights have been ignored, which is complete rubbish. They are expected to obey the laws of the land or pay the price.

Foxtrot Oscar - August 18, 2011 9:53 AM

As a Bermudian I take great offense to this article, especially the title, "Customs Officials extort money from cruise passengers by unconstitutional drug searches".
For starters, CBP agents do the exact same thing when ships enter U.S. Ports, and a person's Forth Amendment Rights do not cover these type of searches. The article pasted below clearly states this....
Grounds for Customs Search of Cruise Ship Cabin Determined
Issue of Whether Search Requires Reasonable Suspicion
United States v. Whitted, 541 F.3d 480 (C.A. 3, Sept. 4, 2008)
In 2004, the cruise ship Adventures of the Seas arrived at port in St. Thomas, U.S. Virgin Islands, from the foreign port of St. Maarten. A U.S. Customs and Border Protection officer searched the ship manifest via the Treasury Enforcement Communications System (“TECS”) and discovered that passenger James Edward Whitted had a criminal record, had purchased a last minute ticket on the ship, and had traveled to several drug source countries. Based upon that and other information, the official selected Whitted’s cabin, among 9 others, for inspection.

Custom officials searched Whitted’s cabin with a drug-sniffing dog and discovered heroin. Before Whitted’s conviction for possession and importation of a controlled substance, the U.S. District Court (D.V.I.) denied his motion to suppress the drugs seized from his cruise ship cabin on the grounds that the search violated his Fourth Amendment rights. Whitted raised that issue in appealing his conviction.

The Third Circuit noted that the Fourth Amendment requires that searches of one’s “persons, houses, papers, and effects” be reasonable, which generally mandates issuance of a warrant. However, there is a well-established exception for searches conducted at the first port where a ship docks upon its arrival into the United States. Such border searches that are classified as “routine” do not require that officials have reasonable suspicion.

The Court of Appeals stated that whether a border search qualifies as routine requires review of “the degree to which it intrudes on a traveler’s privacy.” Whitted argued that the search of his cabin was tantamount to a search of one’s home and was therefore highly intrusive. The government, on the other hand, likened search of a cruise ship cabin to that of a vehicle, searches of which are considered unobtrusive and therefore subject to minimal Fourth Amendment safeguards.

The Court of Appeals determined that one’s expectation of privacy regarding living quarters on a cruise ship is more closely aligned with one’s privacy expectations regarding a home rather than an automobile. The Court held that the search of private living quarters aboard a ship is essentially equivalent to a non-routine border search, and thus must be supported by reasonable suspicion of criminal conduct.

Having announced that standard, the Court held that for Customs officials to have the requisite reasonable suspicion, they must be able to articulate a “particularized and objective basis” for their search. Because Whitted had taken a cruise to drug source countries, had traveled to several other such countries, had purchased his ticket at the last minute, and may have paid in cash, the Court held that the officials did have “reasonable suspicion” sufficient for their search.

The Court of Appeals accordingly affirmed Whitted’s conviction.

Bermuda Customs Officers have legal authority to board ANY ship or aircraft arriving in the Island of Bermuda, and can search ANY part of said ship or aircraft. The minute the ship enters Bermuda waters, regardless on whether the passenger intended to take drugs off or not, that passenger has imported drugs into Bermuda. Under Bermuda laws, that passenger has broken the law, and is punishable by a fine or jail time. Furthermore, most cruise ships state that ANY type of drugs are not permitted inboard the ship, and that passengers caught will drugs will be dealt with by the Authorities in that Port of Entry.

Please follow up on the laws of Bermuda as well as Bermuda Customs Search procedures before making comments such as these.

Jim Walker - August 18, 2011 11:02 AM

Mr. Oscar:

The U.S. case you cite in your comment is one of the cases I referred to in my comment above as well. It stands for the proposition that customs agents must have a "reasonable basis" to enter a cabin on a cruise ship. This requires a “particularized and objective basis” by the customs personnel to conduct a search. Otherwise the search is in violation of the Fourth Amendment.

I would be very interested in reading a case from Bermuda addressing this issue, particuarly after a Senior Magistrate raises a concern that the searches are unconstitutional.

I suspect that there are no cases in Bermuda because the cruise passengers decide it is ultimately cheaper to pay the fine than pay a defense lawyer, and no one wants to sit in jail for 30-60 over a few marijuana cigarettes.

M S - August 22, 2011 2:02 PM

Customs Department Act 1952 section 5 - Powers and immunities of members of Customs Department.

The Act states:
Every member of the department may make, while acting in the execution of his duties, such searches of ships, aircraft and goods as are reasonably required for the due performance of his duties as such a member by or under any provision of law, and for that purpose may enter (using reasonable force if necessary) any warehouse or other place of deposit inside a Customs Area within the meaning of the Revenue Act 1898 and any dock, wharf or warehouse wherever situated.

Plainly put, if you enter Bermuda via ANY mode of transport you are liable for search by Customs.

An American in Bermuda - August 22, 2011 6:51 PM

These boneheaded cruise passengers should be happy that the Magistrate sees their cases the next day and gives them a quick discharge with a nominal fine rather than letting them sit in jail and/or confiscating their passport and making them pay for a hotel until the case is resolved. I doubt that many jurisdictions are this lenient. And do people really need to be told not to smuggle illegal drugs into foreign countries? Are cruise ship passengers really that stupid?

What's so hard to understand? Basic common sense says that if you bring illegal drugs into another country, you should expect that you, your belongings, and your vessel will be searched. End of story.

The funny thing is you only hear about this sort of thing from the low-end lines like Carnival and RCL. Silversea, Regent, and Oceania don't seem to have any potheads.

You're wrong that this is a revenue grab. While customs duty is the #1 source of revenue to government, that's because EVERYTHING that enters this island is dutied at 25%. With over a hundred cruise ships a year, and only raising $100K, that's not a profit-making enterprise, given how much officer and court time goes into keeping drugs off the island.

What you observe is an attempt by Customs to stanch the flow of illegal drugs and guns onto this island, which are fueling gang warfare, robberies, and antisocial behaviour. Keep up the good work, Bermuda Customs.

Bermudian in Bermuda - August 22, 2011 8:15 PM

As was Foxtrot Oscar I too am offended by your headline. An American in Bermuda says it all. What on earth is on the mind of anyone travelling to a foreign country with drugs? Arrogance or stupidity? At least they travelled to a country with Due Process. Don't try this in the Far East.

Bob Pedersen - August 26, 2011 4:05 PM

Jim, quit your whining. Customs doesn't need a warrant or "probable cause" (an American legal term) to search a ship or its cabins, cargo and/or crew while in its territory. Whether or not they take it ashore is irrelevant. Bermudan waters constitutes Bermudan territory just as much as Bermudan soil.

Anyone stupid enough to take drugs to a foreign country deserves whatever justice is meted out in that country. They should be glad they weren't caught in Singapore or Malaysia.

Stir Fry - February 20, 2014 11:50 PM

"found after a tip-off".

Hmmm...wondered who they offended and quite possibly if it was planted there?

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