Clark July 30th, 2014
…continued from Part 1, Part 2, and Part 3.
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.
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.
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.”
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).
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, in Part 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.
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.”
“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.
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.