or on vessels of non-member nations, let alone on citizens of nonmember nations. Compare Edye v. Robertson, 1884, 112 U.S. 580, 598-99, 5 S.Ct. 247, 254, 28 L.Ed. 798; Restatement (Second) of the Foreign Relations Law of the United States § 139 (a) (1965); See, e.g., The Vienna Convention on The Law of the Treaties, Art. 36 (May 23, 1969).

Appellants contend that, because the treaty merely restates, as it recites, principles of international law, they have standing to assert those underlying doctrines that are part of the corpus juris of nations. But see United States ex rel. Lujan v. Gengler, supra, 510 F.2d at 68; Restatement (Second) of the Foreign Relations Law of the United States, § 1 comment (f), § 175 (1965). Even if we accept these premises, there is no basis for concluding that violation of these international principles must or should be remedied by application of the exclusionary rule or by dismissal of the indictment unless Fourth Amendment interests are violated. Indeed that would be a singular application for none of the other signatory nations appears to have a similar exclusionary rule or to attach such consequences to a violation of the Convention.

The violation of international law, if any, may be redressed by other remedies and does not depend upon the granting of what amounts to an effective immunity from criminal prosecution to safeguard individuals against police or armed forces misconduct. Article 22 of the Convention, for example, specifies the right to compensation for damages suffered as a consequence of its violation; if only this remedy is available to citizens or vessels of member nations, citizens of non-member nations ought not enjoy the benefits of greater prophylaxis, such as exclusion or dismissal of indictments, by virtue of their nation's failure to ratify. In the absence of a foreign state's ratification that would ensure reciprocal respect for these principles of international law, neither comity, domestic law, nor concepts of due process and fundamental fairness, require such a purging. See United States ex rel. Lujan v. Gengler, supra, 510 F.2d at 68 note 9. Indeed, such unilateral enforcement of the terms of the treaty with respect to non-member nations might ultimately undermine its effectiveness by reducing the incentive for ratification. Congress or the Executive might decide that this nation should unilaterally enforce those principles, but, in the absence of such a directive, we find no authority for granting the relief requested.

F. The Fourth Amendment

Finally, appellants contend that the Fourth Amendment was violated by the failure to procure a warrant; alternatively it is suggested that, because international law was violated by the search and seizure, the actions of the Coast Guard were unreasonable and violated the Fourth Amendment.

Although the search and seizure were authorized by 14 U.S.C. 89 (a), this does not establish that the government's conduct, or that law, are not in violation of the Fourth Amendment. Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596. The Fourth Amendment prohibits unreasonable searches and seizures and the issuance of warrants but upon probable cause. Its applicability is not limited to domestic vessels or to our citizens; once

we subject foreign vessels or aliens to criminal prosecution, they are entitled to the equal protection of all our laws, including the Fourth Amendment. United States v. Winter, supra; Noro v. United States, 5 Cir. 1945, 148 F.2d 696, 698, cert. denied, 1945, 326 U.S. 720, 66 S.Ct. 25, 90 L.Ed. 426; See also Reid v. Covert, 1957, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148; Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Williams v. Blount, D.D.C. 1970, 314 F.Supp. 1356.

For purposes of this opinion, we assume that there was jurisdiction over the vessel, as we have decided, and, arguendo, that a warrant might validly have been issued. See Berlin Democratic Club v. Rumsfeld, D.D.C.1976, 410 F.Supp. 144, 160.

In general, warrantless searches are unlawful even if made with probable cause

However, in a variety of exceptional circumstances, a warrant is not prerequisite to a valid search.

Here, the government clearly had probable cause to search.23 Appellants do not contest this, but contend instead that probable cause existed several days before the search; hence there could be no exigent circumstances that would excuse the failure to secure a warrant. See United States v. Robinson, 1976, 174 U.S.App.D.C. 351, 355 n. 9, 533 F.2d 578, 582 n. 9, indicating that with respect to automobiles, probable cause must be accompanied by exigent circumstances or another exception to the warrant requirement.24 Had the Coast Guard vessel been waiting in ambush for the foreign vessel, and seized it only on the basis of information known to it for a considerable length of time without exigent circumstances, its failure to obtain a prior warrant would be of greater significance. But here the validity of the seizure is not dependent upon the facts known to government agents before the Labrador made its rendezvous with the Catchalot II.

The location of the Labrador was uncertain, and it was difficult to determine where it and the Catchalot II would converge. As the facts recited in Rodriguez, supra, show, even the masters of these two vessels had difficulty effecting their tryst. It was impossible for the government agents to know in advance where the vessels would meet. There was no way to await their union without being seen.

Upon encountering the vessel, the Coast Guard conveyed a "heave to" message via international signal flags. It was authorized to stop the vessel by 14 U.S.C. 89, and such a stop was justified by the existence of probable cause.25 The vessel began to flee, and stopped only after cannon and machine gun fire traversed its bow. This attempted flight created exigent circumstances if none existed previously.

We need not consider whether a warrantless search would otherwise have been constitutionally infirm; considering the mobility of vessels, it suffices that, as the facts unfolded, the government's conduct was justified by the circumstances present when it occurred.26 Until the search and seizure were made, the failure to obtain the warrant was but an inchoate error without effect on individual rights; at the time of the search and seizure, there was justification for proceeding without a warrant. As the Supreme Court held in Cardwell v. Lewis, 1974, 417 U.S. 583, 595, 94 S.Ct. 2464, 2472, 41 L.Ed.2d 325:

"Exigent circumstances with respect to vehicles are not limited to situations where probable cause is unforeseeable and arises only at the time of arrest. [Citation omitted.] The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation's necessitating prompt police action."

See also United States v. Mitchell, 5 Cir. en banc, 1976, 538 F.2d 1230, 1233, cert. denied, 1977, 430 U.S. 945, 97 S.Ct. 1578, 51 L.Ed.2d

792.

We assume, arguendo, that principles of international law were violated by the search and seizure of the vessel, cf. Restatement (Second) of the Foreign Relations Law of the United States, § 165 (1965). It does not inexorably follow that the government's actions were unreasonable for Fourth Amendment purposes. The principles, if any, that were violated by the government's actions are not intended to secure the rights of privacy but rather of free navigation of international waters. See Article 2, Convention on the High Seas. Whether the search and seizure were Fourth-Amendment-unreasonable must be established by showing that the interests to be served by the Fourth Amendment were violated, and not merely by establishing the violation of general principles of international law.

Accordingly, we affirm the trial court in denying the appellants' motions to suppress.

See also, United States v. Pizzarusso, 2 Cir. 1968, 388 F.2d 8, cert. denied, 1968, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395; Rocha v. United States, 9 Cir. 1961, 288 F.2d 545, cert. denied, 1961, 366 U.S. 948, 81 S.Ct. 1902, 6 L.Ed.2d 1241; Restatement (Second) of The Foreign Relations Law of the United States § 33 (1965) suggesting that a state may prescribe a rule of law attaching legal consequences to conduct outside its territory that merely threatens its security.

7 The appellants were charged in the same indictment with appellants in the companion case, United States v. Rodriguez, 5 Cir. 1978, 585 F.2d 1234. A number of the overt acts charged and proved concerned meetings among the defendants who were tried separately and that occurred on land. The fact that none of the appellants who were tried in this case is charged with an overt act on land merely results from the fortuity of a bifurcated trial and is not decisive.

8

21 U.S.C. 801-803, 811, 812-829, 841-851, 871-886, 901-904, 951966.

9 A customs enforcement area created under 19 U.S.C. 1701, 1703– 11 may extend up to 62 miles outward from the coast and laterally up to 100 miles in each direction, thus creating a rectangular enforcement zone of 200 miles by 62 miles.

12 We need not consider whether Congress intended to reach a conspiracy involving only persons physically outside the United States and having as its objection only the commission of acts outside its territory. Obviously, we do not touch upon whether the

statute would apply to acts committed by non-resident aliens within their own states, or whether there is authority to arrest citizens or non-resident aliens while they reside in a foreign country.

13 This rule is subject to an exception in cases of outrageous governmental conduct involving emotional and physical brutality, United States v. Toscanino, 2 Cir. 1974, 500 F.2d 267.

14 The preamble to the Convention on the High Seas states:

"The States Parties to this Convention desiring to codify the rules of international law relating to the high seas recognizing that the United Nations Conference on the Law of the Sea, held at Geneva from 24 February to 27 April 1958, adopted the following provisions as generally declaratory of established principles of international law."

15 Nationless ships are not afforded protection under the treaty, see Article 6, C.H.S.; and ships are deemed to have the "nationality of the state whose flag they are entitled to fly." Article 5, C.H.Š. (emphasis added). See Restatement (Second) of The Foreign Relations Law of the United States § 28 and Comment (b) (1965). See also Oppenheim's International Law 546 (7th ed. 1948); Molvan v. Attorney General for Palestine, 1948 Law Reports (A.C.) 351. There was testimony by the Coast Guard operation officer that the law does not require the flying of flags at night (when the ship was arrested). Although the flags of several nations were found on board, the Coast Guard officer testified that it is customary for a ship to fly the flag of a nation as it enters that nation's port. Hence, we may not conclude as a matter of law that the vessel was a nationless

one.

16 The government concedes that for these purposes, the Coast Guard vessel is a warship. See Maul v. United States, 1927, 274 U.S. 501, 512-531, 47 S.Ct. 735, 739-46, 71 L.Ed. 1171 (Brandeis, J., concurring); Carmichael, supra, 32 U. Miami L.Rev. at 52 n. 6.

17 Cook involved the Treaty of May 22, 1924, 43 Stat. 1761, and § 581 of the Tariff Act of 1922, 19 U.S.C. 1581; its reasoning is equally applicable here.

23 Although section 89 (a) provides authority for the search of a foreign vessel, there is no reason for the Coast Guard to conduct safety or documentation inspections of foreign vessels on the high seas. If we assume both that the Fourth Amendment protects nonresident aliens on a foreign vessel and that, if it does, they can invoke the exclusionary rule, the existence of probable cause to believe that a crime subject to the operation of the laws of the United States has been, or is being, committed would justify the search of a foreign vessel on the high seas. This standard is satisfied here. We need not consider whether it is permissible to conduct a safety or documentation search of a foreign vessel in domestic waters, nor need we consider the standards governing safety and documentary inspections of domestic vessels either in domestic waters or upon the high seas.

24 Under Texas v. White, 1975, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed. 2d 209, if a warrantless search of a vehicle is permissible at the time

of detention, it remains permissible notwithstanding an intervening opportunity to procure a warrant. As to the analogy of automobile searches to vessel searches, see Carmichael, supra, 32 U. Miami L. Rev. at 81-83.

25 An arrest without a warrant may be made if the arresting officer had probable cause to believe that the arrestee has or is committing a felony. Draper v. United States, 1959, 358 U.S. 307, 314, 79 S.Ct. 329, 333, 3 L.Ed.2d 327.

26 The full search was too broad in scope to be justified as a search incident to arrest which must be limited to the area from which the arrestee might obtain a weapon or something that could be used as evidence against him. Chimel v. California, 1969, 395 U.S. 752, 768, 89 S.Ct. 2034, 2043, 23 L.Ed.2d 685; see also United States v. Robinson, 1973, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.

Since the occurrence of the events considered in this case, the Dept. of State and other concerned agencies have instituted procedures designed to ensure that all arrests of vessels on the high seas will take place in full accordance with international law.

Stateless Vessels

United States v. Petrulla et al., 457 F. Supp. 1367 (M.D., Fla., 1978), involving prosecution of 31 persons for conspiracy to import marijuana and conspiracy to possess marijuana with intent to distribute, upheld the authority of the United States Coast Guard under both international and domestic law to board and search an apparently stateless vessel in international waters, 350 miles off the Florida coast. The Coast Guard had been alerted through an undercover operation of the Drug Enforcement Administration (DEA) to the description of the vessel Mereghan II (known as the Heidi), which was carrying a cargo of marijuana from Colombia for offloading off the Florida coast, and also to the coordinates of the planned rendezvous. After a United States Customs aircraft had spotted a vessel fitting the description, the Coast Guard dispatched a cutter to keep the suspect vessel under a surveillance that continued for two days. During this period the vessel failed to fly the flag of any nation although showing Williamsted [Willemstad], Netherlands Antilles, as its home port.

Coast Guard attempts to verify the vessel's registration through the Department of State in both the Netherlands Antilles and (from its radio call sign) in the United Kingdom met with failure. An alleged agent at the vessel's alleged last port of call (Colon, Panama) appeared to be nonexistent. From this information the Coast Guard Commandant determined that the vessel was stateless and could be boarded to determine its documentation and registry. The search which ultimately ensued revealed a marijuana cargo in excess of 100 tons.

The Court rejected the defendants' motions to suppress physical evidence, holding that the eight land-based conspirators were without standing to challenge the allegedly illegal search and that, as to the