In the United States, 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 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.
United States Coast Guard:
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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:
- 14 USC 89 for Maritime Law Enforcement;
- 14 USC 143 for Customs and Border Protection;
- 50 USC 191 for protection and security of vessels, harbor, and waterline facilities including law enforcement ashore, and
- 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.” The word, “inspect,” can be used 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.
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.)
For those that carry weapons aboard, certain weapons are always prohibited:
- Short Barreled Shotgun:
- Barrel Length is less then 18”
- Overall Length is less then 26“
- Short Barreled Rifle:
- Barrel Length is less then 16”
- Overall Length is less then 26”
- Machine Guns:
- 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
- Includes the Frame and Receiver or any combination of parts designed and intended for use in the converting into a Machine Gun
- Smooth Bore Pistol:
- Any pistol whose barrel does not have spiraled grooves inside the barrel as does other pistols
- Muffler or Silencer:
- 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:
- Convicted felons
- Dishonorably discharged persons of the military
- Adjudicated mentally incompetent
- Renounced US citizenship
- Illegal alien
- User/Addict of a controlled substance
- Fugitive from justice
- Has a court order restraining the person from harassing, stalking, or the threatening of an intimate partner or child of such partner
- Convicted of a misdemeanor crime of domestic violence
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:
- Drug enforcement (46 USC Appendix 1903);
- Smuggling and immigration (8 USC 1324);
- Fisheries laws;
- Protected areas and species;
- Environmental and pollution;
- Port and waterway;
- Coastal security;
- Vessel safety and “manifestly unsafe voyage (46 USC 4302 and 4308); and
- 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:
- Done with the permission of the vessel’s master;
- Can only look in spaces that the master permit; and
- Ends when masters say so.
State and Local Law Enforcement Officers:
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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 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 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, LEOs of these lesser agencies will not hesitate to assert that they do, and act bullishly to abuse a boat operator’s confusion, innocence and anxiety. So, what is the truth?
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 West Coast.
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.
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…