Sailfeed
October 31st
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Continued from Part 1 and Part 2.

Various parties have challenged Coast Guard boardings and suspicionless searches in the highest courts, but the courts have consistently upheld the Coast Guard’s right to board vessels under the Revenue Cutter Act of 1790, and its subsequent variations.

Unfortunately, the highest profile cases have been for drug busts. Plaintiffs who really are drug smugglers are less sympathetic to the public.

 

A major drug seizure. All photos courtesy of US Coast Guard

A boater who’s a bit miffed about a Coast Guard search usually gets over it after a few weeks and takes it no further than kvetching to his friends. He doesn’t spend hundreds of thousands of dollars and years of his life trying to overturn a 222-year-old law.

And under this law, the Coast Guard boarding teams continue to do their jobs. We should only gripe about boarding parties if they are rude, threatening, or do something ridiculous or unprofessional.

But one detail might give pause to an conscientious coastie. They all have to take an oath that goes like this:

“I____do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same, that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office I am about to enter. So help me God.”

Maybe they need to change it to:

“I____do solemnly swear (or affirm) that I will support and defend the Constitution of the United States, except the Fourth Amendment part. Except for the Fourth Amendment I will defend the Constitution against all enemies…”

With regard to the Revenue Cutter Act of 1790, things have changed a lot since 1790. Back then there were essentially no recreational vessels. Almost all vessels were merchant vessels or warships. Revenue cutters had to be able to rein them in to collect taxes and control contraband. Today most vessels on most bodies of water in the US are recreational. These recreational boats aren’t carrying taxable cargo – they’re just carrying us.

Perhaps private, recreational vessels should just be exempt from suspicionless searches under 14 U.S.C. § 89 . Sorry, merchant vessels, you’re probably not too crazy about surprise boardings either, but you were the original target of the law.

Several constitutional law scholars bristle over suspicionless searches. I’ve read several law review articles on the subject, and let me tell you, if you’re not a lawyer they make great bedtime reading.

The best was Constitutional Barriers to Smooth Sailing: 14 U.S.C. § 89(a) and the Fourth Amendment, by Megan Jaye Kight. She suggests: “The government certainly has a vital interest in ensuring that vessels on the high seas are safe, seaworthy, and properly documented. However, this interest should not be advanced at the cost of sacrificing the constitutional freedoms of law-abiding seafarers.”

Ms. Kight goes on to suggest that instead of suspicionless searches at the discretion of the boarding officer, our boats get annual, scheduled safety inspections. If, on average, our boats get boarded by the coasties every year or two anyway, a scheduled search wouldn’t take up any more time or man hours. If they could knock a bunch of us off at one time, say by inspecting all the boats in the same marina, this would save time over random boardings.

At first blush this sounds like a costly administrative nightmare, but most of our boats get surveyed every year or two for insurance or marina safety anyway. Perhaps a survey from an accredited marine surveyor could substitute for a Coast Guard inspection? Or a safety inspection, and award of sticker, from the Coast Guard Auxiliary? Any of these options would be preferable to a surprise boarding, but still, our homes and cars aren’t subject to regular safety inspections, planned or unplanned.

If a vessel is entering the US from abroad, it should be open to search, just like a car crossing an international border. But a recreational vessel on a lake or river, where it can’t even have contact with the greater ocean or the countries that border it?

I could even live with searches being allowed on any vessel that ventures offshore. After all, the vessel could have come from who-knows-where, or could have rendezvoused with people smugglers, a drug shipment, or terrorists.

In the Coast Guard’s documentation, and on all charts, inland waters are delineated from offshore and near coastal waters. Inside of this line our Fourth Amendment rights could kick in. For voyages that originate and terminate in inland waters, vessels could not be boarded without a warrant or probable cause.

If you’re waving a bottle of Jack Daniel’s yelling, “Woohoo, I’m the King of England!”, leaving an oil slick behind you, running at night with no lights, or towing a child in your wake, well, there’s their probable cause.

For boaters who live near international borders, like San Diego, the Coast Guard would have reasonable suspicion they’d gone to a foreign country every time they left the harbor. Sorry, San Diegans.

So what does it take to have our constitutional rights extended to the water, an Act of Congress?

Actually yes, I think it would take an Act of Congress. I’m no lawyer, but court cases hinge on case law and precedence, and when we’ve got 222 years of precedence for suspicionless searches, not even the Supreme Court can just have a change of heart. The next time they try a Coast Guard boarding case under the Fourth Amendment, I’m guessing it will go the way it’s gone ever since the Revenue Cutter Act of 1790. For the law to change, it would take a movement in Congress–with pressure from a grass roots movement that starts right here!–to extend privacy rights to the water.

Boaters don’t represent a powerful force in politics, but we should. The latest statistics show 16 million registered boats in this country, and 75 million citizens who have been boating in the last year, and are thus classified as boaters. This is nearly a quarter of the nation, all of whom could be searched, and thus deprived of their Fourth Amendment rights, just by stepping on a boat.

Coast Guard personnel are generally polite, and for the most part treat the public with respect, but they’re human, have bad days, and turn very sour if you question their broad authority. While the average boarding lasts twenty minutes, they often order boats to return to the dock and delay voyages for an hour or two. This ruins an outing, and few boaters would welcome a surprise boarding. And someday the guys with the guns might not be so polite and professional, and then we’ll want the law on our side.

I’ll close with the words of Ms. Megan Jaye Kight, my favorite Constitutional law scholar:

“The inconsistencies and ambiguities in this area of the law require resolution. Until less intrusive alternatives are implemented through legislative action, the courts must ensure that the  guarantees of the Fourth Amendment are not assaulted, for the “shield against unreasonable searches does not rust on exposure to salt air.”‘

And on to Part 4 (added two years later)

37 Responses to “Coast Guard Boardings and Your Fourth Amendment Rights, Part 3”

  1. […] courts have consistently upheld this authority,” but that’s not quite true. (I said it too, inPart 3…oops.) There has been a lot of flip-flopping over the years, and the courts have often found in […]

  2. Dan says:

    Let’s be clear; the foundational law we are discussing here was for commercial purposes. Today, officials can and do enter places of business for inspections of various kinds. As a former OTR CDL driver, I expected and accepted that I could (and was) stopped for various reasons, including while driving solely within the country.

    But here, we are talking about private, leisure craft, and that is a whole different ballgame. This is the difference between “public” and “private”.

    I acknowledge that there are valid reasons why certain inspections/searches are required; fly internationally and you know you must pass through customs and the procedures that go with it.

    I accept that a private vessel similarly must be checked and processed in such circumstances. There is a world of difference, however, between being required to report on arrival for processing, and being boarded in the dead of night. The former is civilized, the latter is the stuff of horror stories.

    I’ve read comments from members and family of the CG, and I sympathize; it is a dangerous job, and most of you say the CG personnel don’t like to do it. Yachties don’t like having it done either. Take one more step now and realize what has just been said… Our common reaction to this activity is what we call a “self-evident truth” that this activity is fundamentally wrong, and has no place in a free society.

    Do not tell me it is for my own safety, for precedence on land clearly shows that our right to privacy is viscerally understood to be greater than allowing full unfettered violation of that privacy in the name of safety. There are civilized means to ensure compliance when necessary and when motivations are true and just.

    Do not tell me, “if you have nothing to hide, you shouldn’t mind”, for that is an attitude of convenience to allow people to take more power over you. Freedom is not easy, nor free. We must stand and resist when we know something is wrong.

    Don’t take it out on the CG though. They are doing their jobs, and they have no ability to change the law. Be polite, be cooperative. Remember that their pulse is up too – they have no idea what is waiting for them on that yacht they’re about to board. I’d go so far as to say turn on a light in the cockpit area so they can see you clearly and easily, and keep your hands in view. It is a small thing, but if you can help them relax, I’m willing to bet your experience with them will go much more smoothly.

  3. Anonomyous boater says:

    Favor, there is no favor here, only training for them at your expense and discomfort for their real job. The War On Drugs.

    Which if you haven’t noticed we have lost.

    The 18 year old with an attitude and a gun isn’t there to “Help Me”.

    The chief petty officer of the local coast guard who took his private boat out drunk and ran into my boat while she was in her slip was there to help me too I imagine….

    Get over the idea that the government is there to help you or that they are protecting your life or liberty. Given an order by a superior, they will shoot you dead regardless of who you are or what you have not done. At the end of the day after you are dead, the investigation will determine that they killed you with due regard to their procedures. Not the law, their procedures.

    This is a police state, and your only answer is to be polite to the man that has his boot on your throat and a gun to your head. Good advice but not because they are wonderful helpful people, but because they can shoot you dead without any accountability or any reason. Always be polite to people with unlimited authority, and no accountability. Also though try and stay away from them and if you have a constitution it should try to keep them away from you.

  4. Ed Duclos says:

    Dean, while it may not be a direct “favor” when the CG boards you, it is a favor in that they are keeping the waterways safer, in many ways. And I doubt seriously that anyone has pointed a gun at you during boarding…unless you opted to act like a jerk, in which case I expect that you’d be treated the same way you’d be treated if you acted like a jerk during a traffic stop. And the “supreme law of the land” is obviously not so clear, otherwise we wouldn’t be having this conversation…not to mention that said “law of the land” has been amended many times, hence, subject to interpretation and modification. BTW, my reference to “God-given” is simply my reaction to people who seem to put the Constitution on a par with the Bible.

  5. Shannon says:

    As a coastie wife I can say without a doubt I haven’t meet a single coastie that enjoys boarding anyone’s boat. They are doing boarding to make sure all your friends and family are sailing safely. My husband has started choosing jobs where he doesn’t have to do boardings (bouy tenders for one) because there are people out there who will shot him just because they don’t want him on their boat. Since there is no regulation on who can own or even run a boat someone needs to be there to make sure everyone is safe. My husband’s had to save 4 children who were left stranded on a boat because the adults both went overboard and died. They are all under the age of 7. He has found multiple dead bodies because those people were not following safety regulations. My husband and friends put their lives on the line every time they go underway to make sure your family and friends are safe. Should they die because of someone elses stupidity, no but they do. Think on that a minute.

  6. PLO says:

    As a former CG Boarding Officer, licensed Merchant Marine and current law school student, I can tell you that the boarding team that boards your boat is NOT operating in a law enforcement capacity. While they might be armed, they are acting as nothing more than safety inspection officials. If during the course of the inspection, the officer observes signs that a crime has been committed and such signs give him reasonable suspicion, then he/she becomes the law enforcement officer.

    When I boarded recreation boats, I always explained what I was doing and why I was doing it. I encouraged every boarding officer/ boarding team member that I trained to do the same. If you’re uncomfortable with anything that is happening, ask questions. The officer is trained to explain 14 USC 89. As with any situation involving law enforcement, I would be polite, monitor their every move and document and report activity that you’re uncertain about.

    Bottom line, they don’t need any probable cause to board you because they’re not acting as law enforcement officers at that time. If you’re involved in any illicit activity, be sure to thoroughly cover your tracks as not to give the boarding party any reasonable suspicion. If charges are brought against you, exercise your fifth amendment right to shut up and lawyer up!

  7. Becky says:

    I think it’s funny that some of those complaining about the boardings are acting like Coast Guard crews get excited to come onto your boat and do the boarding. It is a job for them. And I can almost guarantee they didn’t join the CG just to be able to to boardings. Most of the time the crews who you meet are men and woman who joined so they could help save people. I am the wife of a Coastie who is currently deployed and I know the heart my husband has and I know that there is not 1 person he wouldn’t help. So next time you think of how inconvenienced you feel, you need to be thankful that there are people out there putting their lives on the line to save yours and one of those people is my husband – father of my children.

  8. 41 driver says:

    Alot of points already covered. I’ll add.
    That same boatcrew that comes aboard your vessel for an inspection is the same crew that responds to your call for help. The numbers show, the more boardings the CG does, the less search and rescue cases happen because the people are educated and prepared for the emergencies.

  9. John Hoog says:

    “Just think of all the people we helped who didn’t know they needed our help”. I’ll take my dangerous freedom over your safe slavery anyday.

  10. Dave says:

    I am a CG veteran. We have great respect for citizens and their rights. We are citizens. We are doing our citizens and country a huge favor. When off duty, we also get random checks from our service. It’s a part of life that shouldn’t bother us if we aren’t in violation. The many, many jobs of the CG is a total list of nothing but service to our country and it’s citizens, without regard for it’s own safety at times. Putting their life on the line for our way of life. Give them a break. How many live’s have been saved by a random check. Even one would be worth the inconvenience. Semper Paratus! (Always Ready)

  11. Julia says:

    Today, I went to the beachfront with my kids. I found a sea shell and gave it to
    my 4 year old daughter and said “You can hear the ocean if you put this to your ear.” She put the shell
    to her ear and screamed. There was a hermit
    crab inside and it pinched her ear. She never wants to go back!
    LoL I know this is entirely off topic but I had to tell someone!

    my page: anchor (Julia)

  12. Clark Beek says:

    Sorry, we’ll try to fix that!

  13. this raise to many questions. If your boat is on the hard, do they have the right to search? If your boat is on a lift, do they have the right to search?

  14. dean matcheck says:

    “supposed God-given rights…????” Not from God, and not supposed, my friend, but from the supreme law of the land which is pretty clear even to incipient police-staters, whether you like it or not! I appreciate the other things the Coast Guard does, but when I want the Coast Guard to do this taxpayer and free citizen a personal favor I will contact them. In the meantime, if it’s ok with you Ed, I will still take offense at being accosted at gunpoint for doing nothing, in violation of the US Constitution. (Boarding really seems like a favor to you? Pretty twisted.) Recreational boater/retired Air Force.

  15. Al says:

    I’d take annual inspections over “we will board you whenever we wan’t ’cause we can.”

  16. Stephen says:

    I think the writer put forth several “reasonable alternatives”…recreational vs commercial, coastal vs. international waters, voluntary safety inspections, etc. Nor did he accuse the coast guard of not being courteous, professional or helpful. He also ponders ‘constitutional’ rights, not “god-given'(maybe Ed and I read different articles). I wouldn’t have a problem with a random boarding, though middle of the night or very often would be tiresome, but I wouldn’t be in favor of yearly inspections and stickers. We have plenty of that hassle with our cars.

  17. Ed Duclos says:

    Recreational Boater/Retired Navy. Chris, we live on the ICW near a small CG station in NC, and have developed a good relationship with them in connection with our neighborhood watch, EMS, wildlife/fisheries, fish and game, etc., services At ALL times I have found them to be professional, well-trained and courteous. We are thankful for their MANY services to our community and country, not just “boating safety” inspections. While you (and others) rail against the underpinning 220-year-old law’s exceptions to the 4th Amendment (without providing a reasonable and workable alternative) as “out-of-date” and “un-Constitutional,” you fail to take into account the changes in today’s world that require the CG to continue exactly as they have been doing. My advice: Get over yourselves and your supposed God-given rights, be polite, and cooperate as if the CG is doing you a favor…because they are!

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