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Jason Flare · 29-03-2016, 13:20

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?

GoingWalkabout · 29-03-2016, 13:56

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

Stumble · 29-03-2016, 14:13

Quote:

Originally Posted by denverd0n

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.

Ever heard of drug smuggling? Or human trafficking. The largest drug bust in UK history legally started as a safety search.

GoingWalkabout · 29-03-2016, 14:26

Quote:

Originally Posted by Stumble

Ever heard of drug smuggling? Or human trafficking. The largest drug bust in UK history legally started as a safety search.

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

SURV69 · 29-03-2016, 14:28

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

Stumble · 29-03-2016, 14:31

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.

Stumble · 29-03-2016, 14:33

Quote:

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

Well the drug bust was in Briton not the US so I have no idea the terminology. But in the US it would have started as a safety inspection since they didn't have enough evidence to get a warrant. Basically the went on board to check for life jackets.

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.

GoingWalkabout · 29-03-2016, 14:41

Quote:

Originally Posted by Stumble

Well the drug bust was in Briton not the US so I have no idea the terminology. But in the US it would have started as a safety inspection since they didn't have enough evidence to get a warrant. Basically the went on board to check for life jackets.

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.

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

Dsanduril · 29-03-2016, 14:43

Quote:

Originally Posted by GoingWalkabout

I have been searching and have not been able to find any law authorizing random searching of cars or boats. ...

This has been asked and answered right in this thread. 14USC89:

Quote:

The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested or, if escaping to shore, shall be immediately pursued and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel liable to a fine or penalty and if necessary to secure such fine or penalty, such vessel or such merchandise, or both, shall be seized.

There can be lots of arguments about 4th Amendment, civil liberties, etc. etc., but the courts have held (ad nauseam) that Congress was pretty clear with the language above.

GoingWalkabout · 29-03-2016, 15:24

Quote:

Originally Posted by Dsanduril

This has been asked and answered right in this thread. 14USC89:

There can be lots of arguments about 4th Amendment, civil liberties, etc. etc., but the courts have held (ad nauseam) that Congress was pretty clear with the language above.

The issue is not wether or not the legislation is clear and readily understood. The issue is, is it constitutional. I care not if a Local Court, State Court or even a District Court has ruled and upheld this law. What matters is what the United States Supreme Court has to say about it.

It is up to the US Supreme Court to make final judgement on wether or not this law is or is not constitutional. That is what is in doubt. Even if the law was signed by George Washington himself what matters is, is it in conflict with the United States Constitution and if so ipso facto an invalid law.

What I have asked is if this has been tested and answered by the US Supreme Court?

This by the way would not be the first constitutional issue that is yet to be ruled on by the Supreme Court. One other example is what is meant by a "natural born citizen". But lets not go off into that swamp.

Regards,
Chaya

Stumble · 29-03-2016, 15:43

Quote:

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

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.

Dsanduril · 29-03-2016, 15:51

Quote:

Originally Posted by GoingWalkabout

What I have asked is if this has been tested and answered by the US Supreme Court?

In addition to Stumble's information, United States v. Villamonte-Marquez (~1981) is considered the modern watershed case.

Quote:

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.

GoingWalkabout · 29-03-2016, 15:53

Quote:

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.

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

uncle stinkybob · 29-03-2016, 16:23

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.