Coast Guard/DEA boardings

[Boatswain2PA]

Originally Posted by dannc

There have been numerous conversations about USCG boardings over the last few years that have links to articles describing Federal authority to board and search vessels.

The following was not what I was searching to find but it is saying what numerous articles have stated. The Fourth Amendment Rights vs. Boarding Power of the United States Coast Guard |


None of this says that local laws do not apply and it should be self evident that the USCG cannot board a US vessel in a foreign jurisdiction unless said country allows said boardings.

The statutes and case laws on this subject have been in reference to commercial vessels and it is only in relatively recent times that US citizens started to live in decent numbers on boats. The recent trend for people to live on a boat, which makes their boat a home, has not been tested by the courts regarding the 4th amendment from what I have read.

Some day there is going to be a case where the USCG or local law enforcement boards a boat, which is someones home, finds contraband during a search made without probable cause and an arrest is made as a result of the search and the person arrested question's the legality of the search. Or seizes said boat home for a long length of time and/or damages the boat looking for contraband and finds none. Having the search done, say on the Mississippi river in the central part of the US on a non ocean going vessel would make the case very interesting.

Later,
Dan

Searches can only be done after establishing probable cause (plus exigent circumstance), probable cause as established by a judge (via a warrant), or by consent (ie: agreeing to board an aircraft, or agreeing to cross a border)
Any search done without these factors will have the results of such search tossed out.

Originally Posted by Stumble

It's already been done ad naueum. So long as the search was legal, in this case with a USCG officer on board, and he found the contraband while performing a safety inspection, then the search stands. Heck this ability is almost the foundation of the entire drug interdiction policy of the USGovernment.

The law is simple, since the founding of our country the Coast Guard has had the legal right to inspect any US vessel for contraband. If they find it then the owner is subject to fines and jail time.

Quite simply the 4th ammendment doesn't apply, or it applies very weekly, to vessels. The courts have recognized that maritime shipping is somewhat different than your house, and no court has as of yet limited this authority based on the fact that your house is also a vessel. The argument to the contrary has no basis in US law.

I'm not sure if "The Coast Guard has had the legal right to inspect any US vessel for contraband" is accurate unless we are talking about crossing borders. If a vessel comes in from outside of 3 miles then the CG (along with CBP, and therefore homeland security) has authority to inspect for contraband. This is the same inspection (although on a larger level) that travelers coming into the US can expect when flying in and going through customs.

Originally Posted by Travis McGee

I've been boarded a few times, once when leaving GUAM! (The CG sent a cutter there during a period of Chinese refugee/migrant landings from fishing boats.)

Last summer on the ChesBay I was boarded outside Kilmarnock, VA, coming in from the bay at night. Totally professional bunch of young men, hell, we "fit the profile" coming in after dark I suppose. After a complete inspection they gave me a "Golden Ticket," my gold copy of their inspection. No faults! Whew! They said just show it to the next boarding party and I'd be good to go.

My biggest problem that night was finding my flares, dated that year, while I dumped out a few MOB and emergency bags and kits on bunks. (My new flares were in the cockpit, it turns out.) After showing them about 30+ "outdated" flares from 12guage to 25mm, they said, "Never mind, we believe you." (I've never had an old flare fail to fire during a test).

Very professional, courteous, came along and boarded like pros. Two thumbs up, USCG! When I see the CG helos and cutters and boats out on the ocean, it always makes me feel great. So often we hear their calm voices on the radio, talking to folks in trouble. I'm glad they are out there, and in any coasty town, I buy them beers if I see them in the pubs.

Thank you for your feedback, glad to hear! I have had an old flare blow up in my hand while I was doing a demonstration for a fishing fleet in Bandon, Oregon.

Originally Posted by SURV69

.......

I think that all citizens enjoy all the rights of the Constitution ... or, at the least ... they should.

I'm sure that the waters which surround our United States, realistically, must be considered a "special" situation, and I think that's what we see when the Supreme Court extends that authority to the Coast Guard.

But, just for the sake of Argument, what happens if a car, whose inhabitants are not appearing to be breaking any laws, chooses not to allow an officer the "privledge"(sp) of an unlawful search while dispensing a canoe into the water of say ... the Atlantic Ocean, but in the process of having legally denied the officer the search, pops the clutch on his little "water-car"(the kind that actually has a boat license), and slips down the ramp ... into the water to the point the front wheels are now in the water ... like a "beached boat".

Can the Coast Guard officer next to the police officer now conduct the illegal search that was denied to the police officer?

Accordingly, I would have to say yes ... but I'm not an attorney and personally I believe the same violation of the 4th Amendment that existed on the dry part of the ramp, still exists on the wet part of the ramp ... with or without the approval of the Supreme Court.

The CG (should) operate within the Constitution, including the 4th amendment. However, with oceangoing vessels there is almost always "exigent circumstances" that allows officers to perform searches when they find probable cause. These exigent circumstances to search your house (ie: boat) after the officer finds probable cause exists because, unlike houses on land, your boat can be difficult to find after we get a search warrant (ie: a declaration of probable cause from a judge).

As for your (difficult to follow) example - yes, as soon as your boat is underway then the Coast Guard can board the vessel to ensure compliance with boating regulations. However they cannot "search" the boat.

But the converse applies. If the CG sees your boat underway, and then later sees you tied to a dock or on the trailer, they can still ensure compliance with boating regulations.

Originally Posted by denverd0n

I think that's a rather tortured analogy, but I would generally agree with you.

The thing is, I'm pretty sure that no one here has said that they LIKE the fact that the Coast Guard is not constrained by the Fourth Amendment, or that they think it is GOOD. What has been said is simply that this is the way it is. Like it or not, until it is changed, we have to live with it. It has also been pointed out that multiple challenges have worked their way through the U.S. court system, and all have come down on the side of the Coast Guard being mostly exempt from Fourth Amendment constraints.

I can't think of any good reason for this in today's world. I wish it were different. But it is what it is. And, perhaps more importantly, making an ass of yourself, by arguing Fourth Amendment issues with the poor CG sailor who is only doing what he has been told to do, is NEVER going to work out well for you. If you want to argue the point, the only effective way to do it is through a lawyer, in a courtroom, after the fact.

The CG is absolutely constrained by the 4th amendment.

If you don't understand that, then say it over and over in your head.

The CG is absolutely constrained by the 4th amendment.

The CG is absolutely constrained by the 4th amendment.

The Constitution (including the 4th amendment) is the highest law of the land, and the CG cannot operate outside of it.

Clear enough??

Originally Posted by GoingWalkabout

It is a Marxist saying that "power comes through the barrel of the gun" In other words all Governmental power starts out with niceties and civility but as each escalation occurs more and more force is applied until the ultimate force of government is used at the barrel of a gun.

The term law enforcement says what it is. Enforcement. And the word enforcement has the word force in it. USCG are serving and protecting and also using force when and where needed. I respect that and would never choose to offer any kind of resistance. Resistance to even the slightest amount of force (boarding your boat while armed) will result in counter force to the resistance. Keep escalating your resistance and those with the ultimate power will escalate in retaliation. You can quote the niceties of law and what should be based on the constitution and your reading of the constitution. But for every general rule of the constitution there exist exclusions where the government can do far more than anyone would be normally happy with.

A number of years ago many would have screamed and yelled if stopped and searched inside an airport. Many would yell this is unconstitutional. Well now look today. No change in the constitution but with a well crafted piece of legislation and compliance by the courts you now have no protection against search and seizure the moment you enter an airport in the USA.

I have no knowledge of any new law extending this search capability to vessels but I would not be surprised if such was passed. If not then they are acting on the cover given to airports to extend this to vessels. It should be noted that people in Florida are now being stopped, boarded and searched by Homeland Security as well as now Boarder Patrol. Homeland and Border Patrol are also doing such stops and searches many miles inland of the border in Texas etc.

It is the nature of those who have power to keep pressing for more power. And it is the nature of citizenry who feel threatened by dangers to accept the extension of powers by government in order to feel safer.

Now having finished with the philosophy if a Government Official from any country armed and on a boat with a radio that could call in overwhelming force I would be greeting such a person with a smile, an offer of tea or coffee and would follow their instructions without any verbal or other form of resistance.

I know what it is to be taken at gun point by unfriendly's. Respect of those with the guns is the first rule of survival. Second rule depends on your circumstances.

Just my simple thoughts on this touchy subject.

regards all,
Chaya

Wise and reasoned thoughts. However I would like to throw out that "homeland security" and "border patrol" stops SHOULD be limited to that which is reasonably within a customs/border patrol inspection. If you're coming from over-the-border (whether that is overland from MX or over the territorial sea boundary from Europe) then you can be searched for contraband...same thing as when you're flying into the states from overseas.

Originally Posted by Jason Flare

If the coast guard only has the authority to board to inspect for safety issues and marine toilets and cannot search the boat without probable cause, what were they doing swabbing down natraps16 and his crew searching for drug residue?


ETA: If I remember correctly, natraps16 said the call came in from Virginia to swab them. How did VA come up with probable cause?

I do not have the answer for that, sorry. I do remember this technology coming out before I retired, but I thought it was going to be considered a search (ie: required probable cause + exigent circumstances, a warrant, or consent).

Originally Posted by GoingWalkabout

I have been searching and have not been able to find any law authorizing random searching of cars or boats. From what I can see the law of probable cause is still operational. You may unwittingly give consent to a search by saying yes to an officer if he asks can he look inside your car. This kind of consent to a search may take place if you consent to a boarding of your vessel.

Having thought about the legal situation I would do the following.

1. Coast Guard pulls alongside and asks if it can come aboard - say yes but only to check for safety equipment and toilets

2. Record if you can the boarding and your limited and qualified consent on your phone video

3. Be polite and offer no resistance

4. If told not to be present when a CG goes bellow then ask why and by what law/regulation? Keep your phone video rolling.

The best defense against official overreach is your smartphone. If I were traveling in areas where such boardings are now common I would consider having above and bellow cameras with recording. Dash cam recorders used in trucks and cars would probably work well.

Now having said all that. You can thank the scum bag low lives who peddle death drugs to kids for the problems. Not our great men and women of the CG. And yes I am somewhat schizophrenic on this issue as I am a believer in laws are the laws and all have to follow them.

Thanks,
Chaya

Again, very wise. The 4th amendment does not allow for "random searches" unless you are crossing the border. You can also "consent" to random searches by performing certain acts, such as boarding an airplane.

Originally Posted by GoingWalkabout

Hi Ruben. You said your a lawyer. Perhaps you can explain what is a legal "safety search"? I understand what a safety inspection is. An inspection is not a search by its very definition. I also understand that during a safety inspection something is showing such as a line of cocaine on the galley table this would give probable cause for a search but if nothing showing obviously then no probable cause exists. The search without probable cause would be illegal and any evidence would be deemed poison fruit. I don't mean to be rude but where did you graduate law?

Thanks,
Chaya

That is the same understanding I had during my 20 year career in the Coast Guard.

However, toward the end of my career the CG bureaucrats (ie: lawyers - sorry Ruben, lawyers aren't my favorite critters) came up with a new term called the "safety sweep", which consisted of "walking through" all of the "open spaces" on the boat/ship looking for "hazards" to the boarding team. Such "hazards" could be things like the boat is sinking, toxic fumes, or unaccounted for people (ie: a bilge full of Haitians). Again, this was deemed to be an "inspection" to make sure the boat was safe for the CG boarding team to be there. It would NOT include "searches" of private areas....however I never got a good answer on whether a private cabin (which could harbor illegal immigrants) would be a private area.

My personal opinion, and one that I taught my crews, was that it would because a "private area" (and therefore one that would require probable cause to search) is one that "one would reasonably have an expectation of privacy). This would certainly include my bedroom or private cabin.

Originally Posted by SURV69

Well, thankfully, this is a system that seems to work(the Coast Guard), but still, when there's no cause whatsoever, by any means of the definition, I don't see the harm in protecting the general populace from "fishing", expeditions.

Some issues are biggies with me ... as much as I'm almost embarrassed to say (cause I like my rights and I generally don't trust authority), I think I understand the more latitude the Coast Guard has ...

Besides, there are enough legal reasons, even in compliance to the 4th Amendment to effect almost any stop and search the police or Coast Guard would want(or more importantly need), to do. Stopped by a cop and roll your window all the way ... that might be construed as an invite to looksee .... open your door, absolutely worth a looksee ... there are already so many ways a search can occur ... legally.

Maybe ... harking back to a day when most boat traffic was for pirating, war or profit(or maybe even a little Kennedy hooskie) ... when virtually no one went boating on the big waters "for fun", maybe ... the "revenue", aspect of the old guard should be interpreted as a reason to leave the average citizen ... who is not involved in revenue", alone ... unless there's some sort of cause

The CG officer should be able to explain why he/she has probable cause to perform a search. There should ALWAYS be a cause for a search.

Originally Posted by Stumble

http://scholarship.law.wm.edu/cgi/vi...9&context=wmlr

When you get done reading it as well as all the included case law and follow up articles let me know.

Spin it however you want but take any stance but allowing the USCG to search your vessel until they say they are done and be prepared to go to jail and face a major fine.

The USCG has the legal authority to search anywhere on your vessel that may contain illegal drugs without a warrant. Since they can be stored anywhere, that effectively means they can search anywhere they want. The fourth ammendment provides no protection when it comes to USCG inspections, and if they find anything it won't result in a dismissal of charges.


Frankly this is why I hate the conversations. People who have no idea what they are talking about argue very well settled law based on ignorance not information. This has been the law of the US litterly since the first Congress, the law was signed into law before the passing of the Bill of Rights by President Washington. In the entire history of the country no court case has ever held that the fourth ammendment applies to Coast Guard inspections, and absent a Constatutional Ammendment they never will.

I disagree. The CG does NOT have the legal authority to search anywhere that drugs can be found. This would mean that I could search your body cavities on every boarding.

The CG can access ALL spaces necessary to INSPECT the vessel for compliance with boating regulations.

The CG (along with CBP/DHS) can search your vessel to ensure compliance with customs/border patrol regulations (similar to having your baggage searched by CPB at the airport).

Anything else requires probable cause that a crime has been committed.

Originally Posted by Stumble

Under US law the USCG also has the authority to search anywhere that contraband could be hidden. It used to be smuggled cargo avoiding the duties, theses days this authority is primarily used for drug interdiction. Since drugs can be hidden anywhere, this authority gives them the right to search anywhere on board.

Again, disagree. The USCG only has the authority to search "anywhere the contraband could be hidden" if they have probable cause (PC), or if the vessel was engaged in international transit (and therefore under customs)

Originally Posted by GoingWalkabout

Thanks Stumble. I get the picture. Sounds like the USCG has special search authority that land based officers don't. I would be very interested to find out if this special authority has ever been tested or upheld by the USSC?

Again thanks Stumble.

regards,
Chaya

The CG does have special authority that land based officers generally don't have, but that's only because of the operating environment. If the CG had to establish probable cause (PC), and then take it to a judge for a warrant, the subject vessel would be GONE before they could get back due to the dynamic environment.

Originally Posted by Stumble

Yes it has been tested, yes the USSC has weighed in, and yes it is legal. I think the first case on point dates back to around 1790, and there has been a steady stream of cases through the years holding the same thing. USCG inspections without a warrant are legal.

Keep in mind that the 4th ammendment only makes unreasonable searches illegal. The court has been clear that it is reasonable in maritime trade because of the movable of ships, and the specific nature of tarrif enforcement to allow warrant less searches. This will never be overturned without a Constatutional ammendment, the principles are too well settled in law.

Again, INSPECTIONS without a warrant (or PC) are legal. SEARCHES must have a warrant, or PC + exigent circumstances (or consent, or crossing an international boundary)

Originally Posted by GoingWalkabout

Thanks again Stumble. Now clear as daylight. I'm glad that the law is settled and that the USCG is acting totally within the law as determined by the US Supreme Court. As I have said before I respect the law and and happy that the US is a country of law. I would now be even more welcoming of the Coast Guard and thank them for doing their duty and really mean it.

Now everyone should understand that there is no issue with the constitution and realize that these guys and gals are doing us all a great service. Bless them all.

Regards,
Chaya

The "great service" isn't realized until you're knee deep in water, at night, during a storm, your electrical system is shorted out, and you hear the diesel engines of the motor life boat approaching.

Originally Posted by uncle stinkybob

Sum it all with the Patriot Act. Ive been boarded by C.G. maybe 6 or 7 times and Alaska Fish cops maybe 4 or 5 times, never had one problem. They have always been respectful and professional. I may not agree with current policy but I will not argue with the guys out doing the job. I agree with recording these events but it is best done with a hidden camera along with a cell phone, many L.E.O.s get rather upset about being recorded, despite my "rights" to do so.

I was videotaped several times during boardings and never complained. I represented the CG, the US, and the constitution during these boardings.

[markpierce]

If I had illegal drugs on board, I'd be worried about USCG boardings too.

[svmariane]

Originally Posted by markpierce

If I had illegal drugs on board, I'd be worried about USCG boardings too.

Oh, YAY!! A Coast Guard Cutter thread!