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
All 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?
When 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.
"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."
“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.