Is random boarding of vessels unconstitutional?

[AnchorageGuy]

I know this topic has been discussed several times on the board, but I found this article in Soundings Trade Only to be interesting. Perhaps we have turned a corner. Dealer Outlook » Blog Archive » Is random boarding of vessels unconstitutional?
This may never apply to the coast guard but it will start precedent for other state law enforcement. Chuck

[David M]

It's been ruled constitutional for the USCG to board. It is not covered by illegal search and seizure. You are not protected under the Fourth Amendment. It has been challenged and the courts ruled that it does not violate the Fourth.

States can write all the laws that they want but federal law still supersedes state law when there is a conflict.

14 USC § 89 - Law enforcement
(a) 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.
(b) The officers of the Coast Guard insofar as they are engaged, pursuant to the authority contained in this section, in enforcing any law of the United States shall:
(1) be deemed to be acting as agents of the particular executive department or independent establishment charged with the administration of the particular law; and
(2) be subject to all the rules and regulations promulgated by such department or independent establishment with respect to the enforcement of that law.
(c) The provisions of this section are in addition to any powers conferred by law upon such officers, and not in limitation of any powers conferred by law upon such officers, or any other officers of the United States.

What is interesting is what it does not say. It does not say that other law enforcement may search your vessel. The local water cops cannot search your boat...not constitutionally.

[AnchorageGuy]

David, You might want to read the article, which states that is has been challenged in state courts and has been found unconstitutional. The Coast Guard has a totally different standard given broad powers by Congress. This article discusses local law enforcement and the changes in a few states that might have ramifications in others. Chuck

[rebel heart]

Wasn't that houseboat in the Supreme Court ruled as being "not a vessel", thereby removing the USCG's purview?

[s/v 'Faith']

Wow,

That is encouraging. Sure hope this trend continues.

[AnchorageGuy]

Originally Posted by rebel heart

Wasn't that houseboat in the Supreme Court ruled as being "not a vessel", thereby removing the USCG's purview?

That was a completely different case where the state took the houseboat and destroyed it claiming it was a derelict vessel, if memory serves me correctly. Chuck

[David M]

Houseboats permanently tied to shore are generally not self-propelled. Was that the difference?

I doubt you are going to get Fourth Amendment protections with a self-propelled houseboat. You then would need to come up with a legal definition between a houseboat and a regular boat. We have all seen hybrids between the two.

[Rakuflames]

Originally Posted by Waterwayguy

I know this topic has been discussed several times on the board, but I found this article in Soundings Trade Only to be interesting. Perhaps we have turned a corner. Dealer Outlook » Blog Archive » Is random boarding of vessels unconstitutional?
This may never apply to the coast guard but it will start precedent for other state law enforcement. Chuck

It's an interesting question. Residences in my area are required to have smoke alarms, but the fire department (nor anyone else) can insist on coming in to check them, even though people die when they don't work.

My boat is my home. If it were on land, the police couldn't just knock on the door because they felt like looking around.

[Rakuflames]

Originally Posted by David M

It's been ruled constitutional for the USCG to board. It is not covered by illegal search and seizure. You are not protected under the Fourth Amendment. It has been challenged and the courts ruled that it does not violate the Fourth.

States can write all the laws that they want but federal law still supersedes state law when there is a conflict.

14 USC § 89 - Law enforcement
(a) 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.
(b) The officers of the Coast Guard insofar as they are engaged, pursuant to the authority contained in this section, in enforcing any law of the United States shall:
(1) be deemed to be acting as agents of the particular executive department or independent establishment charged with the administration of the particular law; and
(2) be subject to all the rules and regulations promulgated by such department or independent establishment with respect to the enforcement of that law.
(c) The provisions of this section are in addition to any powers conferred by law upon such officers, and not in limitation of any powers conferred by law upon such officers, or any other officers of the United States.

What is interesting is what it does not say. It does not say that other law enforcement may search your vessel. The local water cops cannot search your boat...not constitutionally.

But the question is not whether or not that law exists, but whether or not it's constitutional.

[CarlF]

As the blog suggests, this Arkansas ruling is sure to be cited in future cases. It could (and should) impact state boardings which really are out of control now that the water cops have so many fancy 9/11 funded boats that need to be justified.

But I think a good case can be made that the Coast Guard's interpretation of 18 USC 89 (the 1949 Federal law) is too broad and sometimes unreasonable. Federal laws - even the ones with past constitutionality tests - get challenged all the time.

I'm going to forward the link to the BoatUS Government Affairs Group. They always claim that part of my BoatUS membership is going things like this. Maybe if they get enough pressure from members they'll get involved.

[LakeSuperior]

Finally some sanity out there!!!! BTW, with modern communications the CC no longer needs to operate without probable cause and warrants. It's not the 1800's anymore. They can still have the right to board without cause but only if your vessel has been observed to cross an international border. We now have the technology to preserve the 4th amendment.

[denverd0n]

Originally Posted by Rakuflames

But the question is not whether or not that law exists, but whether or not it's constitutional.

It is. The Supreme Court of the United States has said that it is. Unless it gets challenged, and the current Supreme Court decides to reverse the decision of the earlier Court, it will remain constitutional.

The article linked above is about state laws, state constitutions, and state supreme courts. Several states have decided, in essence, that their state-level and below law-enforcement agencies cannot board a vessel without probable cause or a warrant. I think that is a very nice step forward.

But the U.S.C.G can still board your vessel anytime, anywhere, for any reason, without any need of a warrant. I don't like it. But that's the way it is.

[Kettlewell]

In my experience the Coast Guard at least knows what it is doing, and has established protocols for boardings and inspections. Not to say that I like to be boarded, but they do it with some intelligence generally. It is encouraging that some states are going to limit local law enforcement routine boardings. They have become a serious problem in certain places, like the Hudson River and in parts of Florida. People on the Hudson report being boarded multiple times in one day by different law enforcement agencies.

[Rakuflames]

Originally Posted by denverd0n

It is. The Supreme Court of the United States has said that it is. Unless it gets challenged, and the current Supreme Court decides to reverse the decision of the earlier Court, it will remain constitutional.

The article linked above is about state laws, state constitutions, and state supreme courts. Several states have decided, in essence, that their state-level and below law-enforcement agencies cannot board a vessel without probable cause or a warrant. I think that is a very nice step forward.

But the U.S.C.G can still board your vessel anytime, anywhere, for any reason, without any need of a warrant. I don't like it. But that's the way it is.

The Supreme Court has reversed itself any number of times, and it will be interesting to see how this plays out over time.

[jeremiason]

This is one of the reasons the US is going to implode one day...

Everyone wants to feel safe... Unless it interferes with there own individual freedoms