October 27th

Continued from Part 1:

Why can the Coast Guard search our boats without a warrant or probable cause, when the police can’t search our homes, cars, offices, motorhomes etc.?

It’s always been this way. The same congress that passed the Bill of Rights passed the Revenue Service Act of 1790, which gave revenue cutters the right to search any vessel anywhere in US waters, and any US-flagged vessel anywhere in the world.

Our fledgling nation was strapped for cash, and tariffs were the way to solvency. This was controversial even back in 1790, since many of our gripes against the British, as stated in our Declaration of Independence, had to do with tariffs (see Boston Tea Party). The crews of revenue cutters were allowed to board vessels to make sure they’d paid the tariffs on their cargoes.

An early revenue cutter. All photos courtesy of US Coast Guard

Since 1790 the Coast Guard has been shaken up, mishmashed, and passed around like a red-headed stepchild, but the Revenue Service Act of 1790 has only gone through minor changes.

The modern Coast Guard is an amalgamation of five federal agencies: the Revenue Cutter Service, the Lighthouse Service, the Steamboat Inspection Service, the Bureau of Navigation, and the Lifesaving Service. The Coast Guard, as a named entity, wasn’t created until 1915 under Woodrow Wilson. For much of its history it was part of the Treasury Department. In times of war it sometimes falls under the Navy’s command and sometimes acts on its own, but Coast Guardsmen and their predecessors have fought in every war in our nation’s history.

Now the Coast Guard is part of the Department of Homeland Security, with added counter-terrorism and intelligence responsibilities.

The Coast Guard is not represented on the Joint Chiefs of Staff, yet carries out military and quasi-military operations. The top brass constantly complains that the Coast Guard is ignored and underfunded. “Support on Capitol Hill is about five miles wide and one inch deep,” said a retired Coast Guard vice commandant. Ignored and underfunded, yet it has the most sweeping search and seizure powers ever thrust on US citizens.

Why do they board us and search us, and what are they looking for?

If you ever ask why you, in particular, got singled out from all the boats on the water that day, the boarding officer will say these exact words: “I’m not a liberty to say.” Since there is no requirement for probable cause, they don't need a reason. It’s just bad luck, or maybe they didn’t like the cut of your jib.

Most of what they’re doing is training. Boarding strange vessels on the high seas is a big part of their job, and our boats are good practice. Many coasties don’t come from a boating background—or certainly haven’t been on a sailboat—and they’ve got to learn the ropes.

They’re checking our documentation, safety gear, seeing if we’re drunk, and checking for environmental violations. Are we dumping oil/fuel/sewage into our precious waterways? It’s common to check bilges for oily water, and if there’s an automatic bilge pump in that oily water, we’re so busted.

They’re also checking for fisheries violations, people smuggling, arms smuggling, and drug smuggling. Twenty-six percent of Coast Guard activities are related to drug interdiction, and they are looking for illegal narcotics on every vessel during every boarding.

Considering what we’ve come to expect of our Fourth Amendment rights on land–No, officer, you can’t come in my house and have a look around–suspicionless searches of our boats don’t feel right to most of us. I lived aboard for ten years, and I consider my boat to be my private home. The salons, staterooms, and bunks on our boats are just like our living rooms, bedrooms, and beds at home: Ours, personal, private, and not open for random tours or training missions by strangers.

Some argue that because boats don’t have license plates like cars, the Coast Guard has to board us to check our documentation, but boats either have numbers, a name and hailing port, or both, and these can be seen easily. Any confusion with a boat’s identity can be sorted out by radio or by coming within hailing distance. By the way, the average Coast Guard vessel has advanced optical equipment and digital cameras: When you can barely make out individuals aboard their cutter, they’re reading the numbers off your iPhone.

They’re checking our safety gear (for our own safety, of course) but the police can’t randomly inspect our cars for seat belts, air bags, good brakes, or child seats, nor can they enter our homes to check the gas shut-off, the backflow preventer, or the tags on our mattresses.

Most of us have the right safety gear to protect ourselves and our crew, and most sailors have more safety gear than required: The Coast Guard doesn’t require EPIRBs, radios, LifeSlings, harnesses, jacklines, or any number of items that most sailors consider standard equipment.

They’re protecting the environment, but the police can’t perform random smog checks on cars, or enter our homes to make sure we’re not pouring used motor oil down the bath tub drain.

In short, the justifications for suspicionless searches at sea would never stand up on land, where they would seem downright un-American.

The Coast Guard has terrorists to catch, drugs to interdict, people smugglers to stop, and environmental hazards to avert, but none of these aims are met by suspicionless boardings of recreational craft. They’d have the same odds going door to door in residential neighborhoods, or randomly pulling cars over on the road to search them for bombs, drugs, human traffic, or leaking plutonium. They might get lucky every once and a while, but the way almost all real busts take shape is through probable cause, tips, or old fashioned police work.

What are some alternatives to suspicionless searches of our boats, how could they come to pass, and why hasn’t the Revenue Service Act of 1790 been overturned or revised?

Stay tuned for part 3.


25 comments on “Coast Guard Boardings and Your Fourth Amendment Rights, Part 2

  1. Whitfield Athey

    I believe that we as a people either have rights or not and what part of our country in which we currently take up space. I have several problems with this. The boating community will not come together as a whole group and drive this to the supreme court for resolution; if the state subsidy recently decided on health care was decided by the POTUS b/c Congress ‘meant somtheing different than they wrote’ then it should be easy to win that congress in the 18th century did not mean all boats just commercial. My secondl problem is that all law enforcement on the water thinks they share the coastie’s free pass on the constitution. We have been boarded twice in one day in Jacksonville FL by both Sheriff’s office and Coasties both boarding with little regard to cause. The third issue I have is these ‘mariners’ wear black combat boots. They should atleast be provisioned with deck shoes. The day we were stopped twice for no reason I pointed out to the coasties the Sheriff’s office had already been aboard earlier in the day. the officer in the rib stated he did not care but had no way of knowing that. I pointed to the hundreds of boot prints all over the boat, he laughed but still came aboard, for “my safety”

  2. Rolf

    Great informational series, looking forward to the next. As a recovering lawyer I can only guess at the many cases brought in attempts to overturn previous decisions on this law. I would suspect that a very full set of cases upholding the laws were each carefully and narrowly crafted. Too bad. So: those living in their homes on the water give up their rights. On the other hand, the original point, sea traffic of taxed goods, has provided our government the ability to protect our coasts and therfore our land, from all kinds of “bad” things: drug traffic, illegal immigration, toxic dumping, waste discharge, tax evasion (haha), other stuff…. Being a recovering lawyer, I’m always torn by arguements both ways. I can also imagine Grisham writing a thriller about the use of this law to institute a take-over of the US by martial law (lol). Or has someone done this already and i missed it?

  3. Norris Larson

    We were boarded during what was certainly a training exercise is a bay off Lake Ontario. Why do I think it was a training exercise? The CG man who inspected our engine compartment asked where the spark suppressor was on our Westerbeke 58 diesel. I patiently explained to him that diesels have no spark plugs, coils, etc. He nodded and made no further comments.

  4. Jim Butler

    The Coasties authority for warrantless searches needs to be restricted to at least a probable cause test, especially when the boat is in inland waters. There’s no difference between my boat on a lake and a car on a city street when it comes to privacy.

  5. allen perone

    Taken from Wikipedia searching for Martial Law:

    “At least two American lawmakers have stated on the record that, in their opinion, Section 1031 of the National Defense Authorization Act for Fiscal Year 2012 legalizes or authorizes martial law in the United States. Senator Mark Udall stated “These provisions raise serious questions as to who we are as a society and what our Constitution seeks to protect…Section 1031 essentially repeals the Posse Comitatus Act of 1878 by authorizing the U.S. military to perform law enforcement functions on American soil.”[21]”

    Think this means gov. officials can now warrant-less search your home and office on any whim or “tip” by a disgruntled employee or “frienemy”.

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