Sailfeed
October 25th
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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?

Continue to Part 2

14 Responses to “Coast Guard Boardings and Your Fourth Amendment Rights, Part 1”

  1. […] and I think I remember it being this way back in 1989 due to the "War on Drugs". So, read this: Coast Guard Boardings and Your Fourth Amendment Rights, Part 1 | Sailfeed My question is: Can the CG board my Bahamian flagged sailboat? In US waters? In Bahamian waters? […]

  2. Mike says:

    Let me see if I can clear this up:
    1. 14 USA 89 grants the USCG the authority to do those things.
    2. Boardings are conducted primarily to ensure compliance with federal boating safety laws and regulations. They are also conducted to ensure compliance with federal fisheries regulations.
    3. the legal definition of a search is an intrusion by a government agent on a quest for evidence in an area with a reasonable expectation of privacy. Probable cause is needed to conduct a search.
    4. When the USCG boards a vessel, it is to conduct an inspection of the required safety gear.

    Hope this helps!

  3. David Moore says:

    As a skipper of a vessel you have the right to stop unsafe things from. Going on. If you feel danger of the act of a boarding is unsafe to you/crew/vessel you have the right to stop it from happing. I have seen it done. A capt if a vessel told USCG he was not going let the boarding go on bevause of safty. And added you are more then welcome to see me to the dock but this will not be happen here…he is a 100 ton capt. And.was not boarded there on the water or at dock. This was in texas salt waters.

  4. Clark Beek says:

    Hi Jon,

    This is one of several such comments to these posts. Title 14 section 89 says only the Coast Guard can perform suspicionless searches. It doesn’t say anything about Customs (Paul Calder’s incident) or Homeland Security. Since the CG is now part of Homeland Security, maybe they are assigning their powers to others? How far can this go? I wouldn’t hesitate to refuse a search from a local harbor patrol, because they’re not CG? Could the CG assign their powers to local law enforcement, in this same manner?

    I’m not sure if you were in inland waters or offshore, but these are the kinds of searches that are going too far, in my book, and if we’re in inland waters I think we should have our 4th Amendment rights.

    -Clark

  5. JoN says:

    To Zuppy I think you are correct, you can refuse boarding, but you need to head out of the territorial waters that extend to 200 NM from the coast line and not come back. I think you will be monitored with radar or escorted. (that is what I have heard) I have been boarded and even had weapons aimed at me(years ago when I thought I had rights) these guys are deadly serious! Don’t play with them.

  6. JoN says:

    What info. can you offer on other law enforcement? I was boarded by Home Land Security, they had 4 heavily armed officers, a $500,000 high speed boat, military weapons and protection. Two officers went below on my (smallish 30ft) sailboat. They barely squeezed through the companion way with all that gear. Every bag and tool box emptied. They were looking for terrorists! These tiny terrorists are difficult to find and hide in the strangest places!!!

    I also agree we need to protect our boarders. Can it be done without violating citizens rights? HLS was looking for drugs, I’m not stupid. A middle age dad with his kids out for an afternoon sail near Marathon Key Fl. We dont fit the modle for terrorist, drug transport, smuggling (who would smuggle leaving Fl and returning to Fl?

  7. […] guard board you, you need, at minimum, three day/night flares. Interesting fact, the USCG is the only enforcement entity that can enter your “home” and search for any reason. You have no rights to privacy or […]

  8. Jim says:

    Parker Reinhardt. I am ashamed to be an American if you are too. What a humiliating and bovine comment you made.

  9. Joe Smith says:

    Negative. A canadian flagged vessel in us territorial seas can not refuse a standard safety boarding from the Coast Guard. And this guys info isn’t correct about the boardings. If you truly want to know what the coast guard is all about their website explains their job and authority very clearly. Not this third party info

  10. Zuppy says:

    Correct me if I’m wrong, but UN Treaty prohibits nations from interfering with innocent passage of foreign-flagged boats.

    So a Canadian boat traveling through US waters could refuse boarding, yes?

  11. Jake Lakota says:

    I have a question nobody seems to directly answer. It all begins in the 1980′s with Miami Vice. When I was a lot younger I went to a Coast Guard yard to see what life was like. The SPs were very courteous and showed me around the yard. In conversation it was mentioned that CPOs were the only people who could board a boat. Even the captain of the CG vessel could not. My Dad taught me a story about how the Detroit police came to his Marina he working at to seize the car builder Tucker’s yacht. The captain of the yacht cast off, let the boat drift and pulled out a huge handgun and said “the first SOB who tries to board will be shot.” The cops left. Now I see Miami Vice board boats and I’ve seen the Miami police board boats in lobster raids. One on TV the other for real. Now, can a cop other than the CG legally board a boat that is not attached to land? In the opening scene in the movie Clear and Present Danger it is stated that only certain CG personnel can board a boat. I understand this but a regular policeman? Could somebody PLEASE explain this and give me a reference? Thanks

  12. Clark Beek says:

    Who are you, Innate Thought? I’ve tried to email you, but it bounces. Very interested in your take and all you added (after I read it three times and my head stopped hurting).

  13. Innate Thought says:

    Perhaps you should consider the council of the Lawyers….
    Consider the explanations offered by the US Federal Supreme Court in the Lozeman v. Rivera Beach Fla. jan. 2013.

    I submitt that the formula offered in the Lozeman Case which defines a “vessel”
    is evidence of commerece and is supported by numerous Federal and State documents:

    [-* ] = my explaination of the justices intention for applying the opinion as a guide line.

    Citations of the Justices Opinion follow

    The term “contrivance” refers to something “employed in contriving to effect a purpose”; “craft”
    explains that purpose as “water carriage and transport”; the addition of “water” to “craft” emphasizes
    the point; and the words, “used, or capable of being used, as a means of transportation on water,”
    drive the point home.
    [-* this I see as evidencing the aspect of a transporting service. ie.; a Commercial venture, key word "employed". ]

    The Court reasoned that, despite the annual movement under tow, the wharfboat
    “was not used to CARRY FREIGHT FROM ONE PLACE TO ANOTHER,”
    [-* this suggests the lack of support that a Commercial action was occurring.]

    And we pointed to cases holding that dredges ordinarily “served a waterborne transportation function,”
    namely that “IN PERFORMING THEIR WORK they carried machinery, equipment, and crew over water.”
    [-* This is refering to a business in operation. key words: "performing" and "Work"]

    We did not take these statements, however, as implying a universal set of sufficient conditions for application of the definition
    Rather, they say, and they mean, that the statutory definition may (or may not) apply — not that it automatically must apply —
    [-* This is straight forward in relaying that not every thing folating on the water is a vessel.]

    where a structure has some other primary purpose, where it is stationary at relevant times, and where it is attached
    — but not permanently attached — to land.
    [-* The statement "Where a structure has some other primary function" meaning the primary function of as "vessel" is evidence of a business operating.]

    our examination of the purposes of major federal maritime statutes reveals little reason to classify floating homes as “vessels.”
    Admiralty law, for example, provides special attachment procedures lest a vessel avoid liability by sailing away. Liability statutes
    such as the Jones Act recognize that sailors face the special ‘perils of the sea.’ Certain admiralty tort doctrines can encourage
    shipowners to engage in port-related commerce. And maritime safety statutes subject vessels to U. S. Coast Guard inspections.
    [-*This I inturpret as some of the reasons why not every thing floating on the water should be considered a vessel.]

    It is conceivable that an owner might actually use a floating structure not designed to any practical degree for transportation as, say,
    a ferry boat, REGULARLY TRANSPORTING GOODS AND PERSONS OVER WATER.
    [-* This is referring to a business which might use craft built of any design in performing the operation of transporting. Canoting anything CAN be a Vessel
    when used for commerecial ventures.]

    But even so, the City cannot show the actual use for which it argues.
    [-* This is referring to a business operation ie.: evidence of its voyages/manifests/logs/port fees/UCC1 or SAM filings, et., al.]

    Lozman’s floating home moved only under tow. Before its arrest, it moved significant distances only twice in seven years.
    And when it moved, it carried, not PASSANGERS AND CARGO, but at the very most (giving the benefit of any factual ambiguity to the City)
    only its own furnishings, its owner’s personal effects, and personnel present to assure the home’s safety. This is far too little actual
    “use” to bring the floating home within the terms of the statute.
    [-* There is no evidence of the provisioning of transportation of "Persons" or "Things" so no commerece is evidenced as applied.]

    —–END OF OPINION CITATIONS——

    The following relevant citings of the amicus breif support this aspect of the exposure of the element required to
    qualify as a vessel under 1 USC 3 is the commercial element.

    Relevant Citations of the Amici follow

    Maritime Law is, and at the time of the enactment of section 3 was, a special field of jurisprudence, created for special reasons. Fundementally, the special
    grant of admiralty jurisdiction to the Federal Courts seeks to provide uniform rules of law for the BUSINESS OF SHIPPING, to facilitate MARITIME COMMERECE,
    and to apply uniform remedies for PERSONS TRAVELING OR WORKING ON NAVIGABLE WATERS IN CONNECTION WITH THESE MARITIME ACTIVITIES

    The application of admiralty law and jurisdiction entails a special set of substantive rules. These rules are speciffically designed to facilitate the movement of maritime commerece across state and national boundaries.

    Although the lines are not always easy to draw, it would likely lead to more satisfactory results if courts recognize that the purpose of having jurisdiction over maritime affairs is to provide a forum for developing a uniform body of law for those aspects of maritime commerce for which there is a substantial federal interest.

    The Admiralty and Maritime jurisdiction of the U.S. has historically not been limited by the restraining statutes in English admiralty practice, and “is to be interpreted by an original view of its essential nature and objects and with reference to analogous jurisdictions in other countries constituting the maritime commercial world as well as the jurisdiction in England.”

    These proceedures provide powerful tools which inherently also contain the potential for abuse when applied to persons or things not appropriately within
    maritime jurisdiction.

    Schoenbaum ” the business or employement of a water craft is determinitive..”
    and Friedell “… But the purpose and business of the craft as an instrument of maritime transportation.”

    Other than providing an economic stimulus for hundreds of maritime lawyers, this intrusive extension of federal power and regulation is not calculated to serve any significant federal interest in facilitating maritime commerece.

    In reflecting the general maritime law codified in 1 USC 3, therefore, amici respectfully urge that the definition of “Vessel” reflect these principal
    considerations: [1] the functional reasons for applying admiralty law to particular subjects of interstate and international commerece.

    —–END OF AMICI CITATIONS——-

    Additional support that a “Vessel” is a directly related to commerce and when related to mammerce “vessels” are subject to Admiralty/Maritime Rule…

    The National Vessel Documentation Centers Mission Statement.

    NVDC Mission Statement.
    The National Vessel Documentation Center facilitates “MARITIME COMMERECE AND THE AVAILABILITY OF FINANCING”
    while protecting economic privileges of United States citizens through the enforcement of regulations,
    and provides a register of vessels available in time of war or emergency to defend and protect the United States of America.

    US Department of Transportation/Navigation.

    Passenger Carrier Regulations

    49 CFR 374.101

    TITLE 49–TRANSPORTATION

    DEPARTMENT OF TRANSPORTATION

    PART 374–PASSENGER CARRIER REGULATIONS–Table of Contents

    Subpart A–Discrimination in Operations of Interstate Motor Common Carriers of Passengers

    Source: 36 FR 1338, Jan. 28, 1971, unless otherwise noted.
    Redesignated at 61 FR 54709, Oct. 21, 1996.

    Sec. 374.101 Discrimination prohibited.

    No motor common carrier of passengers subject to 49 U.S.C. subtitle
    IV, part B shall operate a motor vehicle in interstate or foreign
    commerce on which the seating of passengers is based upon race, color,
    creed, or national origin.

    [36 FR 1338, Jan. 28, 1971. Redesignated at 61 FR 54709, Oct. 21, 1996,
    as amended at 62 FR 15423, Apr. 1, 1997]

    Sec. 374.103 Notice to be printed on tickets.

    Every motor common carrier of passengers subject to 49 U.S.C.
    subtitle IV, part B shall cause to be printed on every ticket sold by it
    for transportation on any vehicle operated in interstate or foreign
    commerce a plainly legible notice as follows: “Seating aboard vehicles
    operated in interstate or foreign commerce is without regard to race,
    color, creed, or national origin.”

    Sec. 374.107 Notice to be posted at terminal facilities.

    No motor common carrier of passengers subject to 49 U.S.C. subtitle
    IV, part B shall in the operation of vehicles in interstate or foreign
    commerce utilize any terminal facility in which there is not
    conspicuously displayed and maintained so as to be readily visible to
    the public a plainly legible sign or placard containing the full text of
    these regulations. Such sign or placard shall be captioned: “Public
    Notice: Regulations Applicable to Vehicles and Terminal Facilities of
    Interstate Motor Common Carriers of Passengers, by order of the

    Secretary, U.S. Department of Transportation.”

    49 USC § 31136 – United States Government regulations

    Current through Pub. L. 113-9. (See Public Laws for the current Congress.)

    (a) Minimum Safety Standards.— Subject to section 30103 (a) of this title, the Secretary of Transportation shall prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles. At a minimum, the regulations shall ensure that—
    (1) commercial motor vehicles are maintained, equipped, loaded, and operated safely;
    (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely

    49 USC § 31704 – Vehicle registration

    After September 30, 1996, a State that is not participating in the International Registration Plan may not establish, maintain, or enforce a commercial motor vehicle registration law, regulation, or agreement that limits the operation in that State of a commercial motor vehicle that is not registered under the laws of the State, if the vehicle is registered under the laws of a State participating in the Plan.

    International Registration Plan IRP

    Introduction

    The International Registration Plan (IRP) is a federally encouraged program to facilitate commercial vehicle registration and operation among states and Canadian provinces. IRP member jurisdictions collect registration fees from their ‘home based’ interstate trucking companies on behalf of each member jurisdiction in which the companies operate and must register.

    DMV
    V C Section 9850 Numbering of Undocumented Vessels

    Numbering of Undocumented Vessels

    9850. Every undocumented vessel using the waters or on the waters of this state shall be currently numbered. No person shall operate nor shall any county, city, or political subdivision give permission for the operation of any undocumented vessel on those waters unless the undocumented vessel is numbered in accordance with this chapter, or in accordance with applicable federal law, or in accordance with a federally approved numbering system of another state, and unless (1) the certificate of number issued to such undocumented vessel is in full force and effect, and (2) the identifying number set forth in the certificate of number is displayed on each side of the bow of the undocumented vessel for which the identifying number was issued.

    The only consistent aspect maintained throughout: the opinion and Amicus Brief or the citations of the NVDC, US Department of Transportation and the California DMV
    seems to identify the act of a business functioning is required in order to qualify as a vessel.

    At every turn it is in the evidence of the application of Commercial Affairs when Maritime Law or vessel status apply.

    Consistantly these afore mentioned referrances illuminate my point; that subsequently in the absence of commerece the Maritime rule is moot.

  14. Parker Reinhardt says:

    I’m in agreement with USCG boarding vessels regardless of origin, especially since their call to duty is protection of our waterways. The USCG offers us sailors security in home waters. We owe them a huge debt of gratitude and allegience as they attempt to protect our safety. After all it is dangerous world. They are an essential service and all sailors even foreign flagged should respect USCG enforcement.

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