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

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

  1. Shawn Hall says:

    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 before hand, 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 your 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?

  2. Andrew says:

    “We can’t just look through pockets, lockers, bed sheets, etc. We need probable cause to do so.” But if they did and found something you were prosecuted for, what are your chances in court (assuming lack of videotape evidence)? Cop perjury without videotape counter evidence always wins in court.

  3. ME2 says:

    Clark,

    You need to do more research before publishing an article like this. No, we can’t just look through pockets, lockers, bed sheets, etc. We need probable cause to do so. We board to ensure that vessels are in compliance with all federal rules and regulations. We are proactive in making sure that vessels are seaworthy. Why don’t you ask to shadow a boarding to see what it is really like, do some research man.

  4. JoeCoastie says:

    U.S. Code › Title 18 › Part I › Chapter 109 › § 2237
    18 U.S. Code § 2237 – Criminal sanctions for failure to heave to, obstruction of boarding, or providing false information

    (1) It shall be unlawful for the master, operator, or person in charge of a vessel of the United States, or a vessel subject to the jurisdiction of the United States, to knowingly fail to obey an order by an authorized Federal law enforcement officer to heave to that vessel.
    (2) It shall be unlawful for any person on board a vessel of the United States, or a vessel subject to the jurisdiction of the United States, to—
    (A) forcibly resist, oppose, prevent, impede, intimidate, or interfere with a boarding or other law enforcement action authorized by any Federal law or to resist a lawful arrest; or
    (B) provide materially false information to a Federal law enforcement officer during a boarding of a vessel regarding the vessel’s destination, origin, ownership, registration, nationality, cargo, or crew.
    (b)
    (1) Except as otherwise provided in this subsection, whoever knowingly violates subsection (a) shall be fined under this title or imprisoned for not more than 5 years, or both.

  5. Taylor says:

    It’s to ensure the safety of dumb f*#%s that call for help in the middle of the night, if your going to sail have the proper gear. They aren’t boarding to “find” illegal articles, they are boarding to see if you adhere to the safety laws put in place to prevent the loss of life. If you can call them for help why not let them help you before a bad situation arises and let them board you to make sure you are sailing safley. It’s free to you and pays off to listen to the coast guard and make sure your cruise doesn’t end in a loss of someone you know. If you have nothing to hide then don’t worry, take an hour or two out of your day and enjoy the company of the ones who would GIVE their lives for someone in distress, OUR number one goal is to protect and save lives not to ruin you day.

    Respectfully, me

  6. James J. Pond says:

    I’m thinking about probable cause, articulate suspicion, open view find, and proof beyond a reasonable doubt.

    14USC89 isn’t the only authority either. The U.S. Coast Guard can enforce U.S. Customs to enforce (FISC)… Fiscal, Immigration, Sanitation, and Customs.

    Hope that helps!

  7. Nunya says:

    Like it or not, law is law. As U.S. citizens, you are to obey the laws. The Coast Guard is there to enforce our laws upon the high seas, rivers and any other federal bodies of water. The Coast Guard doesn’t just board its citizens, either: they board oil tankers, international freight ships, recreational boaters from other countries, etc. Your rights aren’t being infringed upon, and if you think they are, maybe it’s possibly because you have something to hide. If you don’t have anything to hide, and you comply with the recreational safety inspection, you’re free to go on your way. The only things they typically look for are safety hazards (exposed wires, leaking fuel tanks, gas tanks too close to an engine, etc.), safety equipment, and life jackets. That’s really about it. If all that is in compliance as per whatever federal laws apply to your vessel, you’re good to go. End of story.

  8. Jay says:

    Im a 7 yr USCG vet and I completely agree with this article. We have a Bill of Rights for a reason. I dont care how many supreme court rulings there are saying 14USC89 is legally fine, its not, it is a major violation of basic civil rights. Im shocked so many Coasties are pro breaking their oaths to the constitution as they are.

  9. Chris says:

    I sail. I’m an avid defender of the constitution and individual rights afforded by it. I am also an 11 year veteran of the USCG. This article is misinformed and full of fallacies. Perhaps the author should look up US Code and educate himself on what we can and cannot due during a maritime safety or post-search and rescue boarding.

    And Mike, I challenge you to do some research as well and keep from sounding so uneducated in the future.

  10. Me says:

    We board your vessel not to violate your constitutional rights, but for your safety and the safety of the boating public as well as to educate and inform. As stated above, we cannot enter a space where there is a reasonable expectation of privacy without probable cause, and cannot perform searches unless there is a reasonable suspicion. How the author thought he could write this article and not be instantly met with an outcry from qualified Coast Guard Boarding Officers and Boarding Team
    Members is appalling. Boarding Officers go through rigorous and in depth training to achieve their qualification to ensure that they are aware of the constitutional rights of civilians and the limits of their own authority. And I assure you, if an Officer misinterprets or oversteps the limits of his authority, he is held responsible for his actions. We’re the Coast Guard, not the Gestapo, we’re there to help.

  11. scott says:

    Mike,
    14 USC 89 has been upheld by the courts, and found constitutional numerous times. You may disagree with this, but fight a boarding and you will be arrested, fined, and maybe imprisoned.

    Former USCG Boarding officer, and attorney.

  12. Justin says:

    This article is not entirely true. With 20 years experience in the CG I can tell you that the CG does not have the right to search whenever and where ever they want. It is true that the CG has the authority to board your vessel at a time. However, if there is a space onboard where you have a reasonable expectation of privacy, they cannot search that space without probable cause ie, stateroom, personal belongings, etc. the purpose of a routine recreational vessel boarding is to check for required safety equipment and educating the public on safe boating practices. Most states don’t require a boating license or a knowledge of any sort in how to safely operate a vessel. Without this CG authority the number of search and rescue cases would increase significantly. The increased weaponry is a sign if the times. Post 9/11 has heighten our country’s awareness of foreign threats. This show of force is a deferent to those who want to do us harm.
    If you believe you were unreasonably searched please report it. We are here to protect our citizens safe from terrorists, smuggling activity, and from the everyday dangers on the water.

  13. Abeille says:

    To those that say the article is wrong or that they don’t have the right to search, here it is.

    14 U.S. Code § 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.

  14. The dude says:

    I am currently a USCG boarding officer. This article is good but dosnt explain why we so what we do. But it’s hard to see the other side of what we do when you don’t fully experience it. Please ask me any big you want. I ll try to offer any answers to questions you guys have. Btw I have over 8 years LE Experience.

  15. Brandon says:

    This article is wrong they have the right to come on any boat at anytime to check your boat for safety but are not allowed to “search” anything without probable cause that is a violation of the Constitution. BUT they can come on and conduct an inspection as written in 140 SC a and that is not a violation of anyone’s rights. They come on check for safety and safety equipment, the only time they are forceful about the boarding is if you give them an attitude. Whether you like it or not they will come on board and if you try to sue the judge will have the US CG back 100%.

  16. Scott says:

    I don’t understand why the constitution does not apply when one is boating. I assume this is an old federal law that needs to be changed. In the United States no one should be subject to interrogation without probable cause.

  17. Mike says:

    At no point can they legally board a US citizens boat especially in US waters without permission or a warrant or probable cause. I understand you think its law because a law has been written but it is a clear violation of the Constitution. It makes me sick when I hear, “I have nothing to hide” or “they were really nice”. That sounds like a slave to me. It is your duty as an American to resist tyranny in any form. The constitution is the supreme law of the land. What that means as determined by the supreme court…

    The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.

    An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed.

    Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

    Since an unconstitutional law is void, the general principals follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it . . .

    A void act cannot be legally consistent with a valid one.

    An unconstitutional law cannot operate to supersede any existing valid law.

    Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.

    No one is bound to obey an unconstitutional law and no courts are bound to enforce it.

  18. Lauri says:

    It’s not the USCG that I object to, no I have the greatest respect for what these men and women are about. No, it’s the trampling of my rights that I object to. If they could come into your land home like they can come into my water home, you would indeed think twice about this blatent stomping of our 4th amendment rights. The boat doesn’t have to be coming into the harbor or trolling around off shore, they have the right to enter, seach, and sieze forever just because it is on the water. Doesn’t anyone else see how dangerous this precedent is?

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