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.


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

  1. tc1uscg

    Lots of good points here. If you akin boarding’s to floating checkpoints, why do police still get away with putting up sobriety check points? Why do we have agricultural checkpoints going into California, for example. What business is it of Officer Green Tree if I have a rubber plant in my car or a ferret? It’s in my car and I should have the right to carry such items w/o being stopped, questioned or detained, right? Most boarding officer actions comes with experience. The more they do, the better they get. I can assure you that some have reservations carrying out standard boarding’s. I remember in 1980 after I attended boarding officer school that the majority of us didn’t like the idea of strapping 45’s to our hip and turning what use to be a standard safety boarding after towing you in and having to come onboard armed.

  2. 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”

  3. 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?

  4. 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.

  5. 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.

  6. 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”.

  7. John S

    What about all these houses floating on the waters of Sausalito CA or Seattle WA? Are these boats or land homes?

  8. David Nelson

    As a Coast Guard auxillary member I have some interesting input regarding potential violations of our 2nd amendment rights. The policy during the boarding when firearms are found on the vessel is to record serial numbers name of persons in possession of the firearms as well as latitude and longitude of boarding.

  9. Chip Lawson

    Regardless of whether you agree or disagree with the powers of the Coast Guard (I have my opinion but it is not relevant) I want to thank Clark Beek and Sail Magazine for a very informative and detailed article. The information presented here is extremely valuable to every boater. Very good job!

  10. Larry MacDonald

    We lived aboard our boat and cruised for 15 years. We were boarded once by the U.S. Coast Guard – this was shortly after the incident in the Charleston inlet when a child called in a Mayday and it was ignored. A boat and lives were lost as a result. The Coast Guard, trying to improve its image, I guess,was trying to assert its authority by boarding many boats. Ours was one on the ICW just south of the Cape Fear River. It looked like that had a young kid in training and he was asking the questions. His first questions was, “Do you have any weapons on board?” We assumed he meant guns. We did not and told him so. Next question was where we kept our life jackets (PFD’s) and we showed him. The top tow in the life jacket bag had whistles, a waterproof flashlight and a sheathed knife attached. The kid was immediately in my face, his hand on his weapon, screaming at me, “You told me you had no weapons on board.” These were knives with three inch blades. I told the kid that if these were weapons, he needed to take a look at the butcher knives in our galley. The older guys calmed him down, and on going through our paperwork, discovered that we were U.S. Power Squadron members. After that, it was like a ‘good old boys’ club. He asked no more questions, just filled out the questionnaire and said, “Sign here.” He asked why we weren’t flying our Power Squadron Ensign and we told them we had only recently returned from the Bahamas and hadn’t remembered to put it back up. He informed us that if we had been displaying it they probably wouldn’t have boarded in the first place. Lesson learned.
    Another comment – we spent a number of weeks at anchor near the Coast Guard Station on the Fort Pierce inlet (replenishing the cruising kitty). On weekends there were many boats out and about. I would point out to guests on board our boat which boats that the Coast Guard would board. I was usually right. When asked how I knew, I merely pointed out the brevity of the bikinis on board. These Coasties were young. And we’re all people. :)

  11. Clark Beek

    Hello Liam, Constitutional freedoms upheld by naked showering! It may take some getting used to, but it could be our victory.

  12. Mike

    He who sacrifices freedom for security deserves neither. Anyone here who thinks it’s ok to be randomly boarded and interrogated needs to think about the quote from Ben Franklin.

  13. Liam Knuj

    My Uncle was a commercial fisherman in San Diego. He was stopped every day for an inspection. This was a bit over the top. So on his way in to port, he would look straight ahead and not look back. When people waved at him and pointed behind him, he would not look back and just wave back. When the finally caught up to him as he was tying up, he would say, “I didn’t see you”. After a while they stopped harassing him as it took up too much time.

    I personally have never been boarded. My understanding is you can limit the number of people boarding if the boat is small. I would also heave to if sailing, no matter what they say to me. I would not want these guy people to get injured trying to scramble on a heaving boat.

    Finally, I have heard that if you are naked showering on deck they leave you alone, particularly if you have middle aged bodies.

  14. Sam

    I do not mind the USCG boardings and inspections and they are always courteous. They (USCG) are a great bunch of guys and gals __ who willing risk their own lives to help us when we are in need.
    I understand that it is not ‘practical’ to require a search warrant on the water since there are no judges out there.
    However, What I do object to is a ‘TAKING’ without ‘Just Compensation’. Our Constitution calls for Just Compensation when the government takes our property from us. My ‘time’ has value and my time is my property. When a USCG inspection takes 30 minutes of my life away from me (my property) I should be compensated. Many Government agencies “Charge” by the hour or a flat fee for services they provide to me. So it is only fair and equal treatment that I should be paid ‘Just Compensation’ for my time when they take it away from me.

  15. Anonomyous boater

    The Nazi’s smiled a lot too.

    18 year old children with guns and egos wouldn’t invite them aboard as guests, don’t want them aboard as invaders.

    I would like to randomly board their houses to make sure that their bathrooms are safe, after all a lot more people die in the bathroom every year than have ever died on recreational boats.

  16. Dave

    BM is full of BS. Politeness doesn’t make it palatable. Having someone with a high school education, and based on the post, barely that in BM’s case, being given that much power is quite scary. Considering the requirements of passing HS, that is scary enough to make me want to register my boat in another country.

  17. Steve

    Ha! “they’re reading the numbers off your iPhone”. Bullcrap. I’m in the CG. We are using old fashion binoculars.

  18. BM

    Interesting that you all cry foul and scream of tyranny and police state and rights being taken away, but ever single one of you that has had a boarding team actually on board your boat conducting a vessel safety inspection say that the Coast Guard was courteous, polite and didn’t give you any trouble. Fantasy versus reality right before you, yet you still believe the fantasy.

    If any of you were real boaters and then actually been boarded by the Coast Guard then they would have giving you a slip that they were filling out showing you exactly what they were checking. What they’re doing on board a random recreational boat like yours is not a quest for drugs unless your vessel matches the description of a known criminal boat, in which case they are collecting your documents to rule you out as a suspect – they’re proving you innocent. The standard boarding is a vessel safety inspection to ensure that you are compliant with all of the highly regulated requirements boats have.

  19. george cole

    as a sailor and owner I really “enjoy” them as with police, I have a good time with them all !!!! I try[key word] to keep my boat “current” with all the required stuff,and always ask them to clarify what they are inspecting and how I can make their job easier and more pleasant[believe me ]a lil honey goes a LONG WAY to better relations[not just for in-laws & lawyers anymore], and o NOT THINK that all that they do does NOT go into a ships log the good as well as the BAD !!!! ENJOY boating and DO NOT FEAR THE COAST GUARD !!!! however as my grandma used to regularly tell me “be sure your sins will find you out” ENJOY

  20. Gena

    I think this is just a way to get harassed and they don’t ask for your permission they tie you boat up to theirs and then when you boat gets damaged from it you have to drive to Gulfport to get a form to fill out! What a bunch of crap!

  21. Erkme73

    If it is so easy for Congress to pass a law that allows its agents to kick aside our unalienable rights, what keeps them from passing similar laws that gives ALL government employees that right?

    Imagine how many drug dealers (and uaers), pedophiles, tax cheats, wife beaters, and other criminals they could catch if that pesky 4th Amendment didn’t apply to all cops! They could randomly enter any house at any hour. All they’d have to say is “it’s for our protection” and there’s a “law” that makes warrants unnecessary.

    I call BS. Either our rights are unalienable {natural or God-given, if you prefer) or they’re not. If they are, then they are not dependent on government permission.

    This is so nuts. Has anyone ever resisted, been charged and appealed?

  22. Clark Beek

    Hi John, Yep, they can board and search you while at anchor or in port. They regularly board vessels tied up in marinas. Title 14 Section 89 says “any place upon the high seas and upon any waterway over which the United States has jurisdiction.”

  23. John Broadbent

    What are boat operator/owner rights against search and seizure by USCG and police while tied up to a dock or mooring or at anchor. The USCG website specifically states their powers to stop and search vessels UNDERWAY but how about while stationary in port ?
    Any legal knowledge on this point out there ?

  24. John Broadbent

    What the legal boat owner rights against against search and seizure by USCG and police while tied up to a dock, at anchor or tied to a mooring?
    I’m not sure but the USCG can board US flagged vessel anytime while UNDERWAY but what are the regs when in port or at anchor ?
    Any legal information out there, guys ?

  25. Robert J. Schulke

    We live on our boat, and regard it as our home. It is “our castle”. The Fourth Amendment clearly and specifically applies to it in multiple ways. The Revenue Act of 1790 is no longer relevant. Searching for terrorists on a boat tied up in a marina which hasn’t left the bay in years is absurd. Searching for drugs in such a situation can surely be done with a warrant, and based on reasonable suspicion.

    All this said, they have all the guns, and they WILL do exactly what they say. Your best move is to keep your boat up to standards, and cooperate fully with them. If you don’t like it, complain to your elected representatives, file lawsuits, or just make yourself heard, but don’t mess with them while they’re doing their jobs because it won’t end well.

    btw – We’ve been boarded, and the boarding personnel were courteous and professional, in spite of the rather comical level of our incompetence. Smiling and being courteous goes a long way…

  26. someone

    Because the U.s govt. is not interested in protecting your freedomes enny more. they are only interested in ways to sneak by your rights eny place they can.

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