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."'