Category Archives: Boardings by Law Enforcement

Boardings by Law Enforcement

2/2/2016: Original Post
12/12/2020: Added material on limits of USCG authority and Consent

Background:

In the United States of America, the supreme law of land is our Federal Constitution. God blessed our founding fathers with great intelligence and insight as they developed and adopted that wonderful document. The first 10 amendments, collectively known as the “Bill of Rights,” give individual citizens specific protections. Among them, the Fourth Amendment states: “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 probably cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Probable cause is “the level of suspicion that would cause a reasonable and prudent person, given the overall circumstances, to believe a crime has been committed.” A warrant is a “court order authorizing police to arrest a person, search his or her private property, or take his or her belongings.” All boaters should note, in these United States, this Constitutional protection DOES NOT extend to boats and boaters while engaged in the lawful use of the waters of this great country.

United States Coast Guard:

References for this section:

  1. http://www.uscg.mil/d1/prevention/NavInfo/navinfo/documents/Enforcement.PDF
  2. https://www.law.cornell.edu/uscode/text/14/89
  3. http://navwaters.com/2012/11/12/the-fourth-amendment-rights-vs-boarding-power-of-the-united-states-coast-guard/
  4. http://boatswainsmate.net/BM/BOStudyGuide.pdf
  5. http://www.dtic.mil/get-tr-doc/pdf?AD=ADA329162
  6. http://military.wikia.com/wiki/Posse_Comitatus_Act
  7. https://law.justia.com/cases/federal/appellate-courts/F2/608/358/249307/    “Piner
  8. https://law.justia.com/cases/federal/appellate-courts/F2/678/765/329936/    “Watson

The United States Coast Guard mission is to “enforce or assist in the enforcement of all applicable federal laws, on, under and over the high seas and waters subject to the jurisdiction of the United States.” This mission is conveyed by Congress under 14 USC 2 (1). The Coast Guard has the authority to board any US flag vessel anywhere in the world, and any vessel, regardless of Flag or stateless status, in US waters. The Coast Guard has four fundamental sources of authority:

  1. 14 USC 89 for Maritime Law Enforcement;
  2. 14 USC 143 for Customs and Border Protection;
  3. 50 USC 191 for protection and security of vessels, harbor, and waterline facilities including law enforcement ashore, and
  4. The history and traditions of the sea for Mariner Assistance

The Coast Guard’s authority under 14 USC 89 is to “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.”  In United States of America, Plaintiff-appellant, v. John Walter Piner and Salvatore Joseph Gallina, Defendants-appellees, 608 F.2d 358 (9th Cir. 1979) (reference 7, above) by affidavit of a Coast Guard commander, safety inspections of a pleasure boat under applicable regulations consists of the following:

    1. Stopping and boarding of the boat.
    2. Checking boat registration papers and personal identification of the boat owner.
    3. Inspecting the boat for number, condition and storage of life jackets and fire extinguishers.
    4. Inspecting the engine for backfire flame arrestor, closed compartments for proper ventilation ducts, and bilges for spilled oil or fuel to prevent explosion and fire.

The word, “inspecting” can be used pretextually to justify much more intrusive searches. For example, the Coast Guard can “inspect” your engine room for “adequate ventilation,” but in the process, take note of anything that happens to be there that some 18 y/o Petty Offices decides to be curious about. Not that cruisers have anything to hide, but there is no analogy to this warrantless and intrusive police authority in your home on land.

However, at least in some regards relating to pleasure craft, even the authority of the USCG may be limited.  In the cases of United States of America, Plaintiff-appellant, v. John Walter Piner and Salvatore Joseph Gallina, Defendants-appellees, 608 F.2d 358 (9th Cir. 1979), and United States of America, Plaintiff-appellant, v. Jack Osborn Watson, Jeffrey Craig Evenson, and Dale Stanleybrowning, Defendants-appellees, 678 F.2d 765 (9th Cir. 1982), the 9th Circuit Court of Appeals wrote the following:

We conclude that the random stop and boarding of a vessel after dark for safety and registration inspection without cause to suspect noncompliance is not justified by the governmental need to enforce compliance with safety regulations and constitutes a violation of the Fourth Amendment. A stop and boarding after dark must be for cause, requiring at least a reasonable and articulable suspicion of noncompliance, or must be conducted under administrative standards so drafted that the decision to search is not left to the sole discretion of the Coast Guard officer.

The US Coast Guard also has Customs authority under 14 USC 143, which states “commissioned, warrant, and petty officers of the Coast Guard are deemed to be officers of the customs and when so acting shall, insofar as performance of the duties relating to customs laws are concerned, be subject to regulations issued by the Secretary of the Treasury governing officers of the customs.” Who knew?!

The Posse Comitatus Act (18 USC 1385) prohibits United States Department Of Defense personnel from assisting civilian law enforcement in keeping the peace, arresting felons, or enforcing civil law in general. The US Coast Guard is exempt from the Posse Comitatus Act because it operates under the Department of Homeland Security, not the Department of Defense. (The National Guard is also exempt from Posse Comitatus, because the National Guard is a state agency under civil control of the Governors of the respective states.)

Firearms:

For those that carry weapons aboard, certain weapons are always prohibited:

  1. Short Barreled Shotgun:
    1. Barrel Length is less then 18”
    2. Overall Length is less then 26“
  2. Short Barreled Rifle:
    1. Barrel Length is less then 16”
    2. Overall Length is less then 26”
  3. Machine Guns:
    1. Any weapon that is designed to shoot, or does shoot, more then one shot automatically, without manually reloading, by a single function of the trigger
    2. Includes the Frame and Receiver or any combination of parts designed and intended for use in the converting into a Machine Gun
  4. Smooth Bore Pistol:
    1. Any pistol whose barrel does not have spiraled grooves inside the barrel as does other pistols
  5. Muffler or Silencer:
    1. Any device that attaches to a pistol that might lessen the sound of a round being discharged

Furthermore, under 18 USC 922 (d), certain persons are always prohibited from carrying firearms, including:

  1. Convicted felons
  2. Dishonorably discharged persons of the military
  3. Adjudicated mentally incompetent
  4. Renounced US citizenship
  5. Illegal alien
  6. User/Addict of a controlled substance
  7. Fugitive from justice
  8. Has a court order restraining the person from harassing, stalking, or the threatening of an intimate partner or child of such partner
  9. Convicted of a misdemeanor crime of domestic violence

Boardings:

Coast Guard boardings are usually for enforcement of “Substantive Law.”  Substantive Laws prohibit certain actions or require certain affirmative conduct.  Categories of substantive law enforced by the US Coast Guard include:

  1. Drug enforcement (46 USC Appendix 1903);
  2. Smuggling and immigration (8 USC 1324);
  3. Fisheries laws;
  4. Protected areas and species;
  5. Environmental and pollution;
  6. Port and waterway;
  7. Coastal security;
  8. Vessel safety and “manifestly unsafe voyage” (46 USC 4302 and 4308); and
  9. General criminal law.

The Coast Guard does have a category of boardings called “Consensual Boardings.”  Consensual boardings usually involve non-US Flag vessels, and have three criteria:

    1. Done with the permission of the vessel’s master;
    2. Can only look in spaces that the master permits; and
    3. Ends when masters say so.

State and Local Law Enforcement Officers:

References for this section:

  1. http://blog.tradeonlytoday.com/dealer_outlook/?p=1543%22
  2. http://opinions.aoc.arkansas.gov/WebLink8/0/doc/310905/Page1.aspx
  3. http://www.outdoorhub.com/news/2012/04/30/michigan-public-act-62-revises-random-boat-stops-for-safety-inspections/
  4. http://www.ohiohouse.gov/republicans/press/ohio-house-passes-boater-freedom-act
  5. http://www.nytimes.com/2011/06/11/nyregion/stepped-up-security-checks-on-hudson-anger-boaters.html?_r=0
  6. https://boatingonthehudson.wordpress.com/2012/07/28/schumer-demands-reduction-in-unnecessary-boat-stops-and-universal-inspection-sticker-system/

Keep in mind that the United States Coast Guard is an agent of the United States Federal Government. The US Coast Guard has sweeping authority granted by Congress. That authority actually originated with the Revenue Act of 1790, and has been handed down to today’s Coast Guard. I would note that in the 1790s, there were very few pleasure boats, and even fewer full-time cruisers and liveaboards. Do I, personally, have an “expectation of privacy” on my boat? You bet I do. My boat is my home; my “castle.” I live there; I eat there; I sleep there; our boat is definitely our “castle.”  But not at law!

The fact is that state, county and local marine police agencies do not have the same sweeping authority that the Coast Guard has. In fact, even other Federal agencies do not have those sweeping powers, including Customs and Border Protection. Only the US Coast Guard has those authorities. However, certain state officers do have the right to board a boat which is performing activities under a license.  So if you’re fishing, you can be boarded by state Fish and Wildlife officers FOR THE PURPOSE OF ascertaining compliance with licensed fishing activity.  LEOs of these lesser agencies will not hesitate to assert that they do have boarding authority, and may act bullishly to abuse a boat operator’s confusion, innocence and anxiety at having been confronted by a uniformed police agency. So, what is the truth?

As of the date of this writing, February, 2016:

Arkansas: On Feb. 7, 2013, the Arkansas Supreme Court (case: Arkansas v. Robert M. Allen) handed down a ruling that the random stopping of Allen’s boat was unreasonable and violated Allen’s constitutional rights under the Fourth Amendment.

Michigan: On February 23, 2012, the Michigan legislature adopted Public Law 62, prohibiting random stops of recreational boats for safety inspections.

Ohio: On June 4, 2013, the Ohio legislature adopted House Bill 29, entitled “Boater’s Freedom Act,” which specifies that the state’s law enforcement personnel may only stop a vessel if they have reasonable suspicion that the vessel or vessel’s operator are in violation of marine law or otherwise engaged in criminal activity. The bill had broad support from Ohio’s boaters, the marine industry and the Ohio Division of Watercraft.

Florida: As of the 2016 session of the Florida legislature (the time of this writing), there is a bill pending that would stop gratuitous boardings without probable cause.

New York, New Jersey and Connecticut state, county and local LEOs conduct many gratuitous “boat safety” boardings. Boaters in the tri-state region are outraged. I am not personally knowledgeable of conditions on the US West Coast, but given the nature and philosophies of this state’s with regard to state authority, if I boated there, I would be suspicious..

None of these new state laws give boaters the same protections they would have in their land-based residences under the Fourth Amendment, but states are beginning to respond to boater angst about repetitive, abusive and inappropriate behaviors by some – clearly not all – LEOs.

Consent:

References for this section:

  1. https://www.fletc.gov/sites/default/files/imported_files/training/programs/legal-division/downloads-articles-and-faqs/research-by-subject/4th-amendment/searchingavehicle-consent.pdf
  2. https://www.fletc.gov/sites/default/files/imported_files/training/programs/legal-division/downloads-articles-and-faqs/research-by-subject/4th-amendment/ConsenttoEnterorSearchbyDeception.pdf
  3. https://www.fletc.gov/fourth-amendment

It is up to all individuals to understand their rights.  If you can take the time to learn the rules of your favorite sport(s), you should take at least as much time to learn the rules of dealing with the police.  Consent is at the heart of most issues that occur in the legal realm; specifically, consent to “search.”  There are different types of consent, and it behooves all citizens to understand the differences.  When a Law Enforcement Officer obtains valid consent to search a boat, neither probable cause nor reasonable suspicion are required.  If the boater gives explicit, informed consent, the boater has waived such 4th Amendment protections as may otherwise apply.

  1. Implied Consent: your agreement to hold a driver’s license means you have given your consent to DWI screenings; your agreement to hold a fishing license means you have given your consent for compliance checks.  By doing one thing, you have implicitly consented to other things.  Limited in scope to the privileges granted by the license.
  2. Actual Consent/Explicit Consent/Informed Consent: not all identical, but all have at their core that you have had your rights and responsibilities explained to you and you have consented to allow activities that would not otherwise be allowable for the purpose of gathering evidence of some infraction.  The consenting party must have the actual right to give consent.  If police officers act in good faith and get consent from someone who did not have the right to consent, evidence gathered will still be admissible.  Explicit consent can be limited; if the LEOs are looking for stolen pianos, consent can be limited to interior spaces sufficiently large to contain a piano.

This topic is too broad for simple explanations from a non-lawyer.  Keep in mind that the police are allowed to “lie;” that is, they are allowed to use “deception.” But, there are areas where police must be truthful, so there are “unlawful deceptions.”  Lying about having a warrant is an “unlawful deception.”  We citizens, on the other hand, are obliged to tell the truth in responding to police questions.  When dealing with police authorities in any important way, citizens have the right to withhold consent.  So in the case of a safety and registration inspection without cause to suspect noncompliance, the LEO may ask in an indirect way if it OK to look at something else.  You have the right to consent or to withhold consent.  Consent must be voluntarily given.  If you’re withhold consent, and the officer then says he’ll go off and get a warrant, and you then consent because of the officer’s threat, that consent does not constitute a voluntarily given explicit consent.

Conclusion:

What individual boaters choose to do with this information is a personal choice. I consider boarding without consent, and in the case of law enforcement officers, without probable cause, to be an act of “piracy.”  Piracy is, “an act of robbery or criminal violence at sea.” For myself, I have learned to ask, “am I obligated by law to allow you to board?” Officers know that I am not so obligated, and usually will not press the point. If they do, I do not affirmatively grant permission to non-Coast Guard agencies to board. That said, I certainly cooperate if law enforcement officers choose to board. Non-cooperation would only make things worse. Much worse.

Sanctuary has, in the past, been boarded to check our Marine Sanitation Device for overboard discharge. The procedure is that the LEO puts dye flakes in the head, and then flushes about 30 doggoned gallons of water. Presumably, non-complying boats would leave a dye trail in the water. Of course, that is a “destructive test,” wherein it is the usable capacity of the holding tank, for which the boater has paid, that is “destroyed.” So if/when faced with that again, I plan to refuse the test unless I am provided with $25 cash or a chit for a pumpout at the LE agency’s expense. We’ll see how that plays. Wish me luck…