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Coast Guard Boardings and Your Fourth Amendment Rights

http://sailfeed.com/sites/default/files/field/image/Boarding%20Sailboat.jpgSail Feed – by Clark Beek

Sorry, but when it comes to Coast Guard boardings, you don’t have any rights.

I’m surprised how many boaters don’t know this. The US Coast Guard can board your boat any time they want, and look anywhere they want, without probable cause or a warrant. They can do this on the open sea, or while you’re asleep aboard in your marina at midnight. They can look through your bedsheets, in your lockers, in your bilges, in your jewelry box, or in your pockets. They can do it carrying just their sidearms, or they can do it carrying assault rifles. They can be polite about it or they can be rude, but mostly they’re polite.  

If you’re an avid boater you can expect to be boarded every year or two.

I explain this to my guests aboard Condesa, some of whom are lawyers, and I’m met with disbelief: “But that’s a blatant violation of your constitutional rights! They need probable cause, or a warrant from a judge!”

“Not on a boat, my friend, not on a boat.”

All photos courtesy of US Coast Guard

The U.S. Coast Guard Boarding Policy:

Title 14 section 89 of the United States Code authorizes the U.S. Coast Guard to board vessels subject to the jurisdiction of the United States, anytime, any place upon the high seas and upon any waterway over which the United States has jurisdiction, to make inquires, examinations, inspections, searches, seizures, and arrests. The U.S. Coast Guard does not require a warrant to conduct search, seizures, arrests over any United States Waterway or high seas. The U.S. Coast Guard also have full legal law enforcement power on any land under the control of the United States, as needed to complete any mission.

Sweeping powers. In a paper in the William and Mary Law Review, law scholar Greg Shelton says, “In terms of enforcement power, Coast Guard boarding officers are clearly America’s “supercops.””  Another law scholar, Megan Jaye Kight, says, “As such, these provisions comprise what has been accurately characterized as ‘one of the most sweeping grants of police authority ever to be written into U.S.  law.'”

If you’d like to know a little more detail about the boarding policy, here’s a longer document, meant for the public, in the Coast Guard’s own words.

And here’s an article by a retired Coast Guard captain and Coast Guard legal counsel. The pull quote kind of says it all: “There are two main ways to board a vessel—either with permission, or without.”

I’ve been boarded by the Coast Guard five times. They’ve always been very polite, and I’ve never resisted, thus incurring the penalty of ten years in prison and a $10,000 fine. They asked permission to board, but since they were going to board anyway no matter what I said, I said yes.

Once, offshore, the captain of a Coast Guard cutter told me by radio to prepare for a boarding, and ordered me to maintain my course and speed. It was pretty rough, and I was under full sail and solo, so I replied, “How about if I drop my sails and lie ahull? It’s going to be pretty hard for your guys to get aboard right now.”

“Skipper, maintain your course and speed.”

When their inflatable came alongside, it was indeed bouncing all over the place, and they had a tough time just coming alongside, much less getting someone aboard. When the first boarding officer finally made it over the lifelines he slipped on my aft deck—one of those slips where his feet were actually higher than his head before he crashed down—and he landed right on his sidearm. (Did I mention that deck was wet?) I could see tears in his eyes as he suffered through the inspection protocol.

Nobody could have many criticisms for the Coast Guard’s Search and Rescue operations. Dedicated Coast Guard personnel rescue us when we’re in trouble and yes, guard our coasts. As I’ll explain in Part 3, the boarding policy isn’t their doing. They might not like these boardings either. Entering some strange boat with strange people aboard is fraught with uncertainty and risk, and they’d probably rather be out doing real Coast Guard stuff instead of checking the bilges on a Tayana 37.

A Coast Guard boarding isn’t the end of the world, but guests who don’t know the routine think the boat is being raided, and it certainly shuts down the party. Again, boardings are usually routine and polite.

But sometimes they’re not so polite, as in an episode in Moss Landing a few years ago. The Coast Guard boarded and searched boats in a marina at 10:30 p.m., with assault rifles in hand. Some of the marina tenants were asleep and awakened to boots on their decks. During boardings, many boaters feel threatened or harassed.

Often when the Coast Guard boards a vessel at night, they approach with their running lights extinguished, and they seldom answer radio calls. This is scary to most boaters, because who else might be approaching in the middle of the night with no lights? If the Coast Guard is operating in foreign waters where piracy is common, everyone aboard will be terrified for their lives by the time the coasties finally identify themselves. A friend of mine was tailed in this manner for eight hours off the Baja coast before, surprise!, it’s us, the US Coast Guard! In legal terms this is called–seriously–the “fright factor.”

In the post-9/11 world the Coast Guard has added duties, and added weaponry. Instead of a couple of sailors in a rubber boat with big Mae West life jackets and sidearms, a common sight is coasties with assault rifles in high speed inflatables with M-240 machine guns mounted bow and stern. Just the presence of all this weaponry makes many nervous or afraid.

I’m not someone who sleeps with a copy of the US Constitution under his pillow, but as “the supreme law of the United States of America,” I take it to be the governing document of my relationship with my government. The first ten amendments to the constitution are called the Bill of Rights, and many have died defending them. Here’s what the Fourth Amendment says:

Amendment IV 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.

Over the years and many Supreme Court cases, the Fourth Amendment has been interpreted to mean that without a warrant or probable cause law enforcement can’t search your car, your office, your mountain cabin, your pocket, or your wood shed. According to the Constitution, law enforcement personnel can’t search anywhere in your private universe without probable cause or a warrant issued by a judge.

Except your boat: They can board your boat any time they please and look anywhere they want without warning, warrant, or cause, and they do so every day. This is called a “suspicionless search.”

Why can the Coast Guard search our boats without a warrant or probable cause when law enforcement is prohibited by the Fourth Amendment from searching our homes, cars, offices, or motorhomes?

Why can the Coast Guard search our boats without a warrant or probable cause, when the police can’t search our homes, cars, offices, motorhomes etc.?

It’s always been this way. The same congress that passed the Bill of Rights passed the Revenue Service Act of 1790, which gave revenue cutters the right to search any vessel anywhere in US waters, and any US-flagged vessel anywhere in the world.

Our fledgling nation was strapped for cash, and tariffs were the way to solvency. This was controversial even back in 1790, since many of our gripes against the British, as stated in our Declaration of Independence, had to do with tariffs (see Boston Tea Party). The crews of revenue cutters were allowed to board vessels to make sure they’d paid the tariffs on their cargoes.

An early revenue cutter. All photos courtesy of US Coast Guard

Since 1790 the Coast Guard has been shaken up, mishmashed, and passed around like a red-headed stepchild, but the Revenue Service Act of 1790 has only gone through minor changes.

The modern Coast Guard is an amalgamation of five federal agencies: the Revenue Cutter Service, the Lighthouse Service, the Steamboat Inspection Service, the Bureau of Navigation, and the Lifesaving Service. The Coast Guard, as a named entity, wasn’t created until 1915 under Woodrow Wilson. For much of its history it was part of the Treasury Department. In times of war it sometimes falls under the Navy’s command and sometimes acts on its own, but Coast Guardsmen and their predecessors have fought in every war in our nation’s history.

Now the Coast Guard is part of the Department of Homeland Security, with added counter-terrorism and intelligence responsibilities.

The Coast Guard is not represented on the Joint Chiefs of Staff, yet carries out military and quasi-military operations. The top brass constantly complains that the Coast Guard is ignored and underfunded. “Support on Capitol Hill is about five miles wide and one inch deep,” said a retired Coast Guard vice commandant. Ignored and underfunded, yet it has the most sweeping search and seizure powers ever thrust on US citizens.

Why do they board us and search us, and what are they looking for?

If you ever ask why you, in particular, got singled out from all the boats on the water that day, the boarding officer will say these exact words: “I’m not a liberty to say.” Since there is no requirement for probable cause, they don’t need a reason. It’s just bad luck, or maybe they didn’t like the cut of your jib.

Most of what they’re doing is training. Boarding strange vessels on the high seas is a big part of their job, and our boats are good practice. Many coasties don’t come from a boating background—or certainly haven’t been on a sailboat—and they’ve got to learn the ropes.

They’re checking our documentation, safety gear, seeing if we’re drunk, and checking for environmental violations. Are we dumping oil/fuel/sewage into our precious waterways? It’s common to check bilges for oily water, and if there’s an automatic bilge pump in that oily water, we’re so busted.

They’re also checking for fisheries violations, people smuggling, arms smuggling, and drug smuggling. Twenty-six percent of Coast Guard activities are related to drug interdiction, and they are looking for illegal narcotics on every vessel during every boarding.

Considering what we’ve come to expect of our Fourth Amendment rights on land–No, officer, you can’t come in my house and have a look around–suspicionless searches of our boats don’t feel right to most of us. I lived aboard for ten years, and I consider my boat to be my private home. The salons, staterooms, and bunks on our boats are just like our living rooms, bedrooms, and beds at home: Ours, personal, private, and not open for random tours or training missions by strangers.

Some argue that because boats don’t have license plates like cars, the Coast Guard has to board us to check our documentation, but boats either have numbers, a name and hailing port, or both, and these can be seen easily. Any confusion with a boat’s identity can be sorted out by radio or by coming within hailing distance. By the way, the average Coast Guard vessel has advanced optical equipment and digital cameras: When you can barely make out individuals aboard their cutter, they’re reading the numbers off your iPhone.

They’re checking our safety gear (for our own safety, of course) but the police can’t randomly inspect our cars for seat belts, air bags, good brakes, or child seats, nor can they enter our homes to check the gas shut-off, the backflow preventer, or the tags on our mattresses.

Most of us have the right safety gear to protect ourselves and our crew, and most sailors have more safety gear than required: The Coast Guard doesn’t require EPIRBs, radios, LifeSlings, harnesses, jacklines, or any number of items that most sailors consider standard equipment.

They’re protecting the environment, but the police can’t perform random smog checks on cars, or enter our homes to make sure we’re not pouring used motor oil down the bath tub drain.

In short, the justifications for suspicionless searches at sea would never stand up on land, where they would seem downright un-American.

The Coast Guard has terrorists to catch, drugs to interdict, people smugglers to stop, and environmental hazards to avert, but none of these aims are met by suspicionless boardings of recreational craft. They’d have the same odds going door to door in residential neighborhoods, or randomly pulling cars over on the road to search them for bombs, drugs, human traffic, or leaking plutonium. They might get lucky every once and a while, but the way almost all real busts take shape is through probable cause, tips, or old fashioned police work.

What are some alternatives to suspicionless searches of our boats, how could they come to pass, and why hasn’t the Revenue Service Act of 1790 been overturned or revised?

Various parties have challenged Coast Guard boardings and suspicionless searches in the highest courts, but the courts have consistently upheld the Coast Guard’s right to board vessels under the Revenue Cutter Act of 1790, and its subsequent variations.

Unfortunately, the highest profile cases have been for drug busts. Plaintiffs who really are drug smugglers are less sympathetic to the public.

A major drug seizure. All photos courtesy of US Coast Guard

A boater who’s a bit miffed about a Coast Guard search usually gets over it after a few weeks and takes it no further than kvetching to his friends. He doesn’t spend hundreds of thousands of dollars and years of his life trying to overturn a 222-year-old law.

And under this law, the Coast Guard boarding teams continue to do their jobs. We should only gripe about boarding parties if they are rude, threatening, or do something ridiculous or unprofessional.

But one detail might give pause to an conscientious coastie. They all have to take an oath that goes like this:

“I____do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same, that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office I am about to enter. So help me God.”

Maybe they need to change it to:

“I____do solemnly swear (or affirm) that I will support and defend the Constitution of the United States, except the Fourth Amendment part. Except for the Fourth Amendment I will defend the Constitution against all enemies…”

With regard to the Revenue Cutter Act of 1790, things have changed a lot since 1790. Back then there were essentially no recreational vessels. Almost all vessels were merchant vessels or warships. Revenue cutters had to be able to rein them in to collect taxes and control contraband. Today most vessels on most bodies of water in the US are recreational. These recreational boats aren’t carrying taxable cargo – they’re just carrying us.

Perhaps private, recreational vessels should just be exempt from suspicionless searches under 14 U.S.C. § 89 . Sorry, merchant vessels, you’re probably not too crazy about surprise boardings either, but you were the original target of the law.

Several constitutional law scholars bristle over suspicionless searches. I’ve read several law review articles on the subject, and let me tell you, if you’re not a lawyer they make great bedtime reading.

The best was Constitutional Barriers to Smooth Sailing: 14 U.S.C. § 89(a) and the Fourth Amendment, by Megan Jaye Kight. She suggests: “The government certainly has a vital interest in ensuring that vessels on the high seas are safe, seaworthy, and properly documented. However, this interest should not be advanced at the cost of sacrificing the constitutional freedoms of law-abiding seafarers.”

Ms. Kight goes on to suggest that instead of suspicionless searches at the discretion of the boarding officer, our boats get annual, scheduled safety inspections. If, on average, our boats get boarded by the coasties every year or two anyway, a scheduled search wouldn’t take up any more time or man hours. If they could knock a bunch of us off at one time, say by inspecting all the boats in the same marina, this would save time over random boardings.

At first blush this sounds like a costly administrative nightmare, but most of our boats get surveyed every year or two for insurance or marina safety anyway. Perhaps a survey from an accredited marine surveyor could substitute for a Coast Guard inspection? Or a safety inspection, and award of sticker, from the Coast Guard Auxiliary? Any of these options would be preferable to a surprise boarding, but still, our homes and cars aren’t subject to regular safety inspections, planned or unplanned.

If a vessel is entering the US from abroad, it should be open to search, just like a car crossing an international border. But a recreational vessel on a lake or river, where it can’t even have contact with the greater ocean or the countries that border it?

I could even live with searches being allowed on any vessel that ventures offshore. After all, the vessel could have come from who-knows-where, or could have rendezvoused with people smugglers, a drug shipment, or terrorists.

In the Coast Guard’s documentation, and on all charts, inland waters are delineated from offshore and near coastal waters. Inside of this line our Fourth Amendment rights could kick in. For voyages that originate and terminate in inland waters, vessels could not be boarded without a warrant or probable cause.

If you’re waving a bottle of Jack Daniel’s yelling, “Woohoo, I’m the King of England!”, leaving an oil slick behind you, running at night with no lights, or towing a child in your wake, well, there’s their probable cause.

For boaters who live near international borders, like San Diego, the Coast Guard would have reasonable suspicion they’d gone to a foreign country every time they left the harbor. Sorry, San Diegans.

So what does it take to have our constitutional rights extended to the water, an Act of Congress?

Actually yes, I think it would take an Act of Congress. I’m no lawyer, but court cases hinge on case law and precedence, and when we’ve got 222 years of precedence for suspicionless searches, not even the Supreme Court can just have a change of heart. The next time they try a Coast Guard boarding case under the Fourth Amendment, I’m guessing it will go the way it’s gone ever since the Revenue Cutter Act of 1790. For the law to change, it would take a movement in Congress–with pressure from a grass roots movement that starts right here!–to extend privacy rights to the water.

Boaters don’t represent a powerful force in politics, but we should. The latest statistics show 16 million registered boats in this country, and 75 million citizens who have been boating in the last year, and are thus classified as boaters. This is nearly a quarter of the nation, all of whom could be searched, and thus deprived of their Fourth Amendment rights, just by stepping on a boat.

Coast Guard personnel are generally polite, and for the most part treat the public with respect, but they’re human, have bad days, and turn very sour if you question their broad authority. While the average boarding lasts twenty minutes, they often order boats to return to the dock and delay voyages for an hour or two. This ruins an outing, and few boaters would welcome a surprise boarding. And someday the guys with the guns might not be so polite and professional, and then we’ll want the law on our side.

I’ll close with the words of Ms. Megan Jaye Kight, my favorite Constitutional law scholar:

“The inconsistencies and ambiguities in this area of the law require resolution. Until less intrusive alternatives are implemented through legislative action, the courts must ensure that the  guarantees of the Fourth Amendment are not assaulted, for the “shield against unreasonable searches does not rust on exposure to salt air.”‘

The Coast Guard Boardings and Your 4th Amendment Rights posts have been spawning some lively discussion ever since I wrote them, nearly two years ago. Most recently I hear a Coast Guard Facebook page linked to the posts, so there’s been a renewed boost of comments from the Coast Guard side of things. Thanks to all who commented. I’ve been largely silent because I already had my say, but of course I’ve read what all of you had to say, most of which was constructive, and I investigated where I could.

Here I’ll revisit the topic, make some corrections and clarifications, and add what I’ve learned through relentless research of case law and law review articles, which contained many words I had to look up.

First of all, the point of the posts was not to criticize the Coast Guard, but to inform boaters and to question Title 14 section 89 of the United States Code (and associated laws, more on this later). Many boaters, at least many I’ve spoken with, simply aren’t aware that they can be boarded at any time. It’s safer for all involved if we’re informed and on the same sheet of music.

It’s hard to separate the message from the messengers, and I realize that my posts, from the title on, are guilty of this. The message is the law and the messengers are the US Coast Guard boarding parties. Don’t shoot the messengers! It’s not their doing, and as I’ll point out later, it appears that the Coast Guard’s policy is actually to be less intrusive than the law allows. Many commenters – former Coasties, Coast Guard wives, et al – pointed out the dedication and good intentions of Coast Guard personnel, which certainly isn’t in doubt. “We’re not the Gestapo, man,” was one comment. We know you’re not the Gestapo! The worry is that these laws give the authorities the right to behave like the Gestapo if they want to, and they might want to someday, and certain bad apples might want to behave that way right now, on my boat of all places.

IMG_0835

Department of Corrections

I said, “By the way, the average Coast Guard vessel has advanced optical equipment and digital cameras: When you can barely make out individuals aboard their cutter, they’re reading the numbers off your iPhone.”

This was obviously an exaggeration, and perhaps a bad choice of words. I know they can’t actually read the numbers off your iPhone, but I also know that powerful optical equipment, digital cameras with extreme telephoto lenses and image stabilization, and night vision scopes have become fairly cheap, and are common equipment for all law enforcement these days. Every day I look at a photo of a certain vessel that was taken from a Coast Guard cutter on the open sea, at a distance of one mile. You can’t read numbers off an iPhone, but you can see the expressions on people’s faces (worried).

I also said, “They can look through your bedsheets, in your lockers, in your bilges, in your jewelry box, or in your pockets,” and many took issue with this, saying the Coast Guard boarding parties can’t or don’t do this.

The short answer is that under the law they can, but most of the time they don’t…but there are exceptions.

Coast Guard officers are also Customs officers, so in addition to the grant of authority they have under Title 14 Section 89, they also have full powers under Title 19 Section 1581:

“Any officer of the customs may at any time go on board of any vessel of vehicle at any place in the United States or within the customs water of, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act, or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.”

Did you get that part?: “…examine, inspect and search the vessel or vehicle and every part therof and any person, trunk , package, or cargo on board…” (My italics added).

They also have the full authority of Fisheries officers, Immigration officers, et al, but I think we’ve clearly established that Coast Guarding boarding parties have “one of the most sweeping grants of police authority ever written into US law,” and we don’t need to belabor the point further.

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Coast Guard commenters (by which I mean mostly former Coast Guard officers) said that spaces with a “reasonable expectation of privacy” are not searched without probable cause or a warrant, and they said this is the directive from the Commandant. I haven’t seen the directive, which is an internal Coast Guard document and not public, and I probably won’t see it unless somebody wants to be Edward Snowden (ha ha). But I’ve heard about it enough times that I believe it exists, and I applaud the Commandant for respecting our privacy and scaling back from what the law might allow.

Also, several said, essentially, please don’t give us any reason to go beyond a routine search (Hide the weed, people!) because we don’t want to get into your personal spaces. I also applaud this attitude, but unfortunately it’s not the attitude or the Coast Guard policy in question here, but the boundless search and seizure powers they have under current laws, which contradict our Fourth Amendment protections and subject law abiding seafarers to unreasonable searches.

And this reasonable expectation of privacy is sort of moot on a small boat. On a big freighter the boarding team might search the bridge, decks, etc., and check documents and safety gear, but treat staterooms and offices as private. On a small boat like mine everything’s in plain view right from the get-go: The moment the boarding party steps into the cockpit they’ve got a clear view to where we sleep, where we eat and prepare our meals, my wife’s clothes, and our kid’s dirty diapers. If they check the Y-valve on our toilet, then they’re in our bathroom, the holiest of holies. I suppose I could close the hatches and companionway doors before my next boarding, but I’m guessing this would look suspicious and be grounds for further investigation.

As to the exceptions to respecting personal spaces within the context of Coast Guard policy, my guess is that the main exception is if they’ve received a tip. Once on our family boat we were boarded a mile or two off the backside of Catalina Island. It was just my dad, a friend, and me, and we certainly weren’t doing anything suspicious, but the boarding party looked in drawers and searched our bags, definitely places with a reasonable expectation of privacy. My guess is that they’d received a tip that there was going to be a drug rendezvous on the backside of Catalina, and were shaking down the vessels in the area. If the police received a tip about such activity on land they’d have to convince a judge that the tip was valid enough to issue a search warrant. We’ll never know what happened on the backside of Catalina, and we got the ubiquitous “I’m not at liberty to say,” when we asked.

Coast Guard commenters said that boardings are limited to safety inspections – that’s it – and they won’t do anything but check for safety gear unless indicated otherwise. This is probably the case much of the time, but in the Coast Guard’s own words, “Of particular interest are laws dealing with the 200-mile Fishery Conservation Zone, drug smuggling, illegal immigration, and safety and water pollution.” My boarding a few months ago was strictly an anti-terrorist sweep, and they didn’t do any safety check whatsoever. And of course they’re always interested in your level of sobriety.

Several pointed out that the Coasties don’t like these boardings either, that most of them dread boarding private boats because it’s uncomfortable to intrude on people’s day, and boarding strange vessels is fraught with uncertainty and risk. They don’t like it. We don’t like it. Nobody likes it. We can all agree on that, but what good comes from it?

I still maintain that 90% of what is accomplished through surprise boardings could be accomplished without trammeling our 4th Amendment rights. The other 10%, the surprise safety inspection part, would have to be covered somewhere else, like a scheduled inspection, or my preference, personal responsibility. There is no doubt that these surprise inspections, or the potential for these inspections, keep boaters safer, and reduce the number of distress calls to some extent. To what extent, we don’t know. Some boaters have never been boarded their entire lives, while I’ve been boarded seven or eight times over the years. It’s hard to say what the effects of such random, willy-nilly searches are on the public, much of whom isn’t even aware they can be boarded in the first place.

What is the most dangerous place in America, the place where you are most likely to die from an accidental death? Okay, it’s your car, but second to your car it’s your home, and within your home it’s your bathroom. Many thousands of deaths could be averted by surprise inspections of our homes for proper and up-to-date smoke alarms, fire extinguishers, carbon monoxide detectors, safe wiring, adequate railings, grab bars in showers, tripping hazards, etc., but we place a value on privacy in our homes, especially in our bathrooms.

This is something that we’ll never all agree on. Some people believe in safety at all costs; others, like one of the commenters, say “I’ll take my dangerous freedom over your safe slavery any day.”

balance

Now, on to the case law that has brought us to this state of affairs. If, from our courts, you’re hoping for a careful analysis of constitutional law and an even-handed balancing of our freedoms versus the public good, get ready to be disappointed. Some of the comments on these posts could be swapped for the courts’ opinions and nobody would know the difference. The legal opinions are just that, opinions, and don’t seem to be anchored in any cost-benefit analysis. And to establish case law you must have a case, and to have a case you must be a drug smuggler or rum runner (for the case law established during Prohibition).

Rumrunner_cargo

The law review papers all have pithy titles like “Smugglers Blues or Boater’s Nightmare?,” “Constitutional Barriers to Smooth Sailing,” “Reasonableness Gone Overboard,” and “At Sea with the Fourth Amendment” and they all seem to love the quote about the shield against unreasonable searches not rusting on exposure to salt air, which is attributable to Judge Alvin Benjamin Rubin in his concurring opinion on United States v. Williams (1980). There doesn’t seem to be a single law scholar who supports suspicionless searches. My favorite law scholar, Megan Jaye Kight, even adds in a footnote, “I wish to express my appreciation to the United States Coast Guard for stopping me and my family in the middle of the night in order to search our vessel and sparking my interest in the subject of this Note.”

The Coast Guard says, “The courts have consistently upheld this authority,” but that’s not quite true. (I said it too, inPart 3…oops.) There has been a lot of flip-flopping over the years, and the courts have often found in favor of a defendant on constitutional grounds (the Fourth Amendment litmus test of reasonableness) but again, we’re just dealing with drug smugglers and not the rest of us.

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Image Courtesy of US Coast Guard

It troubles me that the constitutional freedoms of 75 million American boaters, and the day-to-day job requirements of innumerable Coasties, are being decided by a small handful of criminals and judges, most of whom probably aren’t seafarers of any flavor. Whether the boardings are a good idea in general has never been the question: The question is always limited to whether the evidence is admissible in a particular bust. Why and how this translates into nationwide policy seems strange and a bit, well, crazy. And supposedly “no act of Congress can authorize a violation of the Constitution,” but here these laws are, in the Federal Code.

In United States v. Villamonte-Marquez a Coast Guard search uncovered 5800 pounds of marijuana on the 40-foot sailboat Henry Morgan II. The defendants’ motion to suppress evidence under the Fourth Amendment was denied at trial. The decision was reversed by the 5th Circuit Court of Appeals, which allowed the motion to suppress, but then the Supreme Court overturned this and the defendants were convicted of too many crimes to list. This happened in Louisiana in 1981.

In United States v. Piner a Coast Guard boarding party found 4000 pounds of marijuana aboard the 43-foot sailboat Delphine. The 9th Circuit Court upheld the defendants’ motion to suppress the evidence under the 4th Amendment, as did district court before that, and the defendants went free. This happened on San Francisco Bay in 1978.

First lesson, if you’re going to get caught with thousands of pounds of pot on your sailboat, do it in San Francisco where you fall under those free-wheeling hippies on the 9th Circuit Court of Appeals. Those 5th Circuit Court of Appeals guys are hangin’ judges! The Circuit Courts of Appeals are regional (The 9th Circuit covers the nine Western states) and they are the second-highest courts in the land, second only to the United States Supreme Court. Usually the buck stops at the Circuit Courts of Appeals, as the US Supreme Court selects only about 100 cases per year to review.

The Piner decision mainly dealt with whether a boarding was more intrusive at night than in the day, which seems like a red herring. Later decisions reversed this, and nighttime boardings are now treated just the same as daytime boardings. But the Piner court opined (per Greg Shelton) that “the law enforcement stop is a “subjective intrusion” that results in a “particularly unsettling effect upon the ordinary person.”

Much of the legal discussion hinges on Delaware v. Prouse, which held that the random stop of an automobile by state police for a driver’s license and registration check was an unreasonable intrusion on the automobile traveler, and therefore violated the Fourth Amendment. Prouse established that police may only stop a motorist if they have “an articulable and reasonable suspicion” that the motorist is in violation of the law.

Comparing Piner to Prouse, the Piner court reasoned: “If the stop of an automobile upon a public highway by an identifiable police car is felt to create such subjective intrusion as to require the use of potentially less intrusive alternatives, surely the stop of an isolated boat after dark, followed by a physical intrusion upon the boat itself, would have an unsettling effect immeasurably greater, placing a far greater demand upon the government to come forward with balancing factors.”

At least somebody’s taking into consideration the “particularly unsettling effects” of surprise searches by armed men.

Back to United States v. Villamonte-Marquez, an often-cited watershed case. In his excellent paper in the St. Johns Law Review, Searching the Parameters of the Fourth Amendment Requirement-Reasonableness Gone Overboard: United States v. Villamonte-Marquez, Lawrence A. Levy provides a complete analysis. Keep in mind that throughout these analyses the terms Coast Guard officer and Customs officer are interchangeable:

“The circuit courts have upheld warrantless boardings that fell within two categories: (1) a border search at the functional equivalent of the border if the officers are reasonably certain that the vessel crossed the border; and (2) an investigatory stop if the customs officers have a reasonable suspicion that there is unlawful activity aboard the vessel. These criteria are not mutually exclusive and the Court could have adopted both, thus affording the necessary protection to fourth amendment rights. Instead, the Court held that the exercise of unlimited authority pursuant to the plain language of the statute was acceptable under the fourth amendment. Creating an exception to the warrant requirement permits customs officers unlimited discretion to stop and board any vessel they choose. The Court may have overlooked the dangers of improper use of such authority as a device to circumvent the protections of the Constitution. Under the facade of a section1581(a) documentation check, overzealous customs officers may board vessels indiscriminately with vague hopes of obtaining evidence of such serious violations as smuggling. Never before has the Court permitted law enforcement officials such unlimited discretion to conduct “fishing expeditions.” Indeed, Villamonte-Marquez represents yet another extension of the recent trend of Burger Court decisions weakening the fourth amendment.”

Levy goes on to say, “As the dissent (in Villamonte-Marquez) observed, a vessel commonly serves as a dwelling for its occupants. Therefore, if a distinction is to be made between automobiles and vessels, it should be recognized that the occupants of a vessel have a greater expectation of privacy than those of an automobile. Although this expectation of privacy must be balanced against the Federal Government’s interest in enforcing the smuggling and vessel documentation laws, it is suggested that the Government’s interest in recreational vessels is less compelling than its interest in commercial vessels. It is further suggested that the correct balancing of interests mandate that the standards employed for the stopping and boarding of pleasure vessels at least be set at the level of those governing automobile stops.”

Judge Anthony Kennedy dissented in Piner: “Vessels are not entitled to the same Fourth Amendment protections as their landlocked counterparts.” It was a dissenting opinion (he lost) but there it is in black and white from a current Supreme Court Justice.

Another watershed case was United States v. Williams, about which Levy says:

United States v. Williams (5th Cir. 1977) involved the boarding of houseboat by customs agents pursuant to section 1581(a). The court held that customs enforcement applied only to vessels which normally carried cargo or persons subject to the customs laws. Indeed, the customs laws maintain a distinction between recreational and commercial vessels. For example, American vessels arriving from a foreign port or place and all foreign vessels are required to make entry at the appropriate customhouse. However, “licensed yachts or un-documented American pleasure vessels not engaged in trade nor in any way violating the customs or navigation laws of the United States” are not required to make entry at the customhouse. Nevertheless, though not required to make entry at the customhouse, pleasure boats now are subject to random boardings by customs officers. With respect to the Federal Government’s interest in assuring compliance with the federal documentation laws, it should be noted that the federal documentation law for pleasure vessels is optional.”

Levy, continued:

“Today, recreational vessels are the predominant type of boat on the water. When the Legislature enacted section 31 (the predecessor to 14, 89) it could not have envisioned the nature and extent of recreational boating as it is engaged in today; nor would the random search of pleasure crafts have been consistent with the commercial orientation of the statute. Therefore, the historical pedigree of section 1581(a) should extend, at most, only to commercial vessels.”

I pointed this out in Part 3, that the original intent of the Revenue Service Act of 1790 was to collect tariffs from cargo ships, but this argument hasn’t seen the light of day in court since Prohibition. Fish v. Brophy (1931) was illustrative:

Per Levy, “Fish involved the boarding of the plaintiff’s pleasure boat in New York Bay, and a subsequent warrantless search of the vessel. The court held that section 581 of the Tariff Act of 1922 (current version at 19 U.S.C. § 1581(a) (1982) did not apply to pleasure boats. The district court reasoned that manifests were required only in the case of vessels carrying cargo from foreign ports. In addition, the court believed that the Legislature could not have intended to place pleasure boats in the same category as commercial vessels. Two years later, in Olsen v. United States, (2d Cir.1933), the Second Circuit held that the statute applied to pleasure boats as well as to commercial vessels. Although the court acknowledged that pleasure boats were treated as a distinct class under federal law, it held that federal regulation of such vessels mandated that they be subject to examination under section 581. It should be noted, however, that the court’s holding did not address the intent of Congress in enacting the statute.”

Levy concludes, “By subjecting the fundamental rights of boaters to the unlimited discretion of customs officers, the Court has eviscerated the fourth amendment, not only as it applies in the maritime setting, but with respect to inland waters as well.”

It’s hard to say, historically, how this has played out. Most of it was before my time, but several of the law scholars cite increased intensity during Prohibition, and from the start of the War on Drugs:

“The Coast Guard’s emphasis on law enforcement changed dramatically after the end of Prohibition. The onset of World War II, the postwar emergence of the United States as an economic power with increased marine commerce, and the wars in Korea and Vietnam all forced the Coast Guard to focus on missions other than law enforcement until well into the 1970s.”

“The struggle to keep drugs from our streets and homes has fostered a judicial tolerance for the exercise of Coast Guard authority that hardly qualifies as Fourth Amendment analysis. Indeed, the trend in court cases analyzing Coast Guard boardings demonstrates that deference has increased over time. This trend stands in stark contrast to the increase in restrictions upon land-based enforcement methods in this century.” (Greg Shelton, 1993)

I have no personal sense for this, as the War On Drugs has been hot my entire life.

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Again, those issues, the case law, and national policy comes from the legal wranglings of a few smugglers. As for the rest of us law-abiding seafarers, I think Shawn Hall’s story, posted as a comment, is representative of the intrusion, inconvenience, and even danger we face with these boardings, no mater how polite and routine they may be:

“Actually, from what I have seen they are boarding to see if someone is drunk or check for drugs. Honestly they endangered my whole family recently. They did it respectfully but it was a waste of time.

They pulled us over nearing dusk, I had 4 miles to go, easy 2 foot waves and sunlight. My father was driving and had had 2 glasses of wine approximately 4 hours beforehand, he is over 60 and not an often drinker.

They were very polite, asked us for all of our paperwork, checked our toilet Y valve? and everything else on the check list of safety. While of course they made a point to look in our bathroom, in our cabin, and in the engine compartment (Checking that Y Valve, or looking for drugs more likely). They then gave my father a sobriety test that took forever, then breathalyzed him, he was well under the legal limit. They also gave me the sobriety test ( I literally asked for one out of curiousity, I could not do tip to tip finger to nose perfectly, that is harder than it looks) They breathalyzed me 0.000.

It was a respectful event but it took over an hour long. The problem being that by this time dusk was to full dark and the cooling of the evening started kicking up the sea (Lake Erie goes from calm to dangerous in a blink) We can of course navigate at night but it is always easier and safer to enter harbor and dock with the sun.

The reality is that they were looking for drugs, looking for someone over the legal limit, looking for anything they could arrest someone for.

So yes, nothing bad happened to us, but I was severely inconvenienced, my family put in danger, and for what purpose? We were on a motor boat, under way, 4 miles from shore in calm waters, lights were on and visible.

Engine runs good and clean. Numbers on side of the boat are professionally done, registration is up to date.

So, how is this helping us? How is this about safety? It is true that if you haven’t done anything wrong, being stopped won’t get you arrested, but what does that matter, why is that any better? What if I just came into your home, asked you questions (you have to answer) very politely of course, but you have to answer me, you have to be polite to me, you have to let me look through all your things.

I walk upstairs in your home go through your wife’s underwear drawer. You pay taxes, you haven’t done anything wrong, you just came home from work and were getting ready for dinner.

I now politely ask you some more questions, I rummage through your bathroom, your dinner is getting cold.

An hour later I say you’re good to go and I politely leave.

Are you okay with this? Why are you more okay if it is a police officer, a DNR agent, or the Coast Guard?”

Since we recreational boaters use our boats in our leisure time, delays like Shawn’s aren’t often the focus of complaints. If we were were using our boats to get to work or go to appointments these twenty minute to one hour delays would wreak havoc with our schedules and cost us money.

For the foreseeable future, Coast Guard boarding parties will remain “America’s supercops.” It is a great power, and a great responsibility. They say absolute power corrupts absolutely, but incidents of abuse of this power are rare but present. Coast Guard personnel are well-trained, and I’m pleasantly surprised at how little abuse there is. If what’s been said is true, I encourage the Coast Guard to continue to undershoot the scope of what they can do under Title 14 section 89 and associated laws, and respect citizens’ privacy wherever possible. Meanwhile, we’ll hope the law is overturned on constitutional grounds, or by an Act of Congress.

This article was syndicated from The Adventures of the Vessel Condesa

http://www.sailfeed.com/2012/10/coast-guard-boardings-and-your-fourth-amendment-rights-part-1/#.U_32GNEmm1I.gmail

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4 Responses to Coast Guard Boardings and Your Fourth Amendment Rights

  1. VRF says:

    private pleasure boats were not the original target of the law. nuff said ..UNCONSTITUTIONAL

    wonder how hard it is to tread water in full assault /riot gear…just wondering

  2. frank says:

    I was unaware that the Coast Guard was given these extra-legal powers. Sucks! Remind me not to live on a boat.

  3. shay says:

    Sounds like legal piracy to me. Nice informative article though. Thanks for posting.

  4. Martist says:

    Hope these guys are proud of themselves. They just made the list for those I will not listen to any excuses from when shtf. If you are cg and reading this, I hope you remember your families are at home and they will be afforded the same level of Constitutional consideration as you have given us. The karmic wheel spins and sometimes a little nudge doesn’t hurt either. Scumbags

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