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Smith nodded. “Absolutely. Fact is, I’ve seen boats all the way from Miami.”
“Do they always have licenses?”
“No.” He cast a disapproving glance toward Morales. “’Specially the ones out at night. And you can’t hardly see ’em if they have their lights off and there’s no moon. Almost ran into ’em a couple of times.”
“Is it fair to say that unlicensed night fishing is a problem?”
“Yep. Parasites. Worse than ticks on a hound dog.”
“How deep is the water there?”
Smith shrugged one shoulder. “Varies depending on the tides and where you are, but not more than thirty feet.”
“Are the currents strong or unpredictable?”
“Not particularly.”
“Have you ever gone diving there?”
“Sure, ’specially when I was younger. There’s shipwrecks going all the way back to the Civil War. Sometimes we’d go spearfishing too.”
“How’s the visibility?”
“Good enough for spearfishing. Lot better than Mobile Bay.”
“Is it easy to see objects on the bottom?”
Smith nodded. “Sandy bottom, not a lot of weeds.”
“Would it be hard to find an object dropped from a boat in that area?”
“Nope. Fact is, a lady tourist once lost her sunglasses in there and paid me twenty dollars to find ’em. Said they were ‘designer glasses’ and was all frantic.” He chuckled. “She sure had her knickers in a knot.”
“Did it take you two weeks?”
“More like twenty minutes. It was easy money.”
“Impressive. Would you consider working for the U.S. government?”
Smith laughed and the judge smiled. Hale sat stone-faced.
“Pass the witness.”
Hale replaced Hez at the lectern. “Mr. Smith, do you have any experience with drug smuggling?”
“No, sir.”
“Pass the witness.”
Hez stood. “No redirect, Your Honor. The defense rests.”
“All right,” the judge said. “I’ll hear closing arguments now. Mr. Hale?”
Hale drew himself up to his full height, looming over the courtroom. “Thank you, Your Honor. As the court is well aware, the government need only show that there is a substantial chance that Mr. Morales committed criminal acts. That is enough to establish probable cause for his arrest and detention. The evidence presented today clearly meets that standard.” He held up a thick forefinger. “First, the drug interdiction task force got a tip indicating that a smuggler would make a delivery at a particular time and place.” Another finger. “Second, Mr. Morales’s appearance at the time and place from the tip.” And another finger. “Third, Mr. Morales’s behavior was entirely consistent with smuggling. He had no lights on his boat, he fled when he saw the Coast Guard, and he threw something overboard. That is more than enough. Further, we don’t need to rule out other possibilities. The defense’s evidence establishes, at most, that it’s also possible that the defendant might have been fishing. But that’s irrelevant. The question before the court is whether there’s a substantial chance that the defendant was smuggling drugs. It does not matter that there may also be a substantial chance he was doing something else.”
Judge Montpelier nodded. “Thank you, Mr. Hale. Mr. Webster?”
“Thank you, Your Honor.” Hez stepped to the lectern. “This is a drug case with a fatal flaw: no drugs. No drugs in the government’s tip—that just mentioned a ‘delivery.’ No drugs on Mr. Morales or in his boat. No drugs on the bottom of the ocean. The Bureau of Prisons isn’t even treating Mr. Morales like a drug smuggler. They’re housing him with the general noncartel population—presumably because both he and the cartels said he’s not one of their members. In fact, I’d wager that the lack of drugs is why we’re all here today. If the government had evidence that Mr. Morales was smuggling drugs, they would have presented it to a grand jury and gotten an indictment. They didn’t. They’ve been looking for that evidence, trying to find it before the clock ran out on them, but they failed. All they can prove is that Mr. Morales may have violated Alabama’s fishing and boating rules. The law does not allow them to lock him in a federal cell for that. They do not have probable cause to hold him for any of the crimes alleged in the complaint, and he must be released.”
