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From: John Wallner (xylan.com!jwallner)
Date: Wed May 15 1996 - 20:28:06 EDT
I have been following with some interest the "Liveaboard Rights"
thread. As luck would have it, while in law school I did my
law review comment on this very issue, which I entitled "My Boat
Is My Castle: The Fourth Amendment at Sea".
Extremely briefly:
Ever since 1946, the Coast Guard has enjoyed wide search powers on
"all navigable waters" under U.S. jurisdiction.
The current text of 14 USCA s 89(a), states:
The Coast Guard may make inquiries, examinations, inspections,
searches, seizures, and arrests upon the high seas and waters over
which the United States has jurisdiction, for the prevention,
detection, and suppression of violations of laws of the United
States. For such purposes, commissioned, warrant, and petty officers
may at any time go on board of any vessel subject to the
jurisdiction, or to the operation of any law, of the United States,
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. When from such inquiries,
examination, inspection, or search it appears that a breach of the
laws of the United States rendering a person liable to arrest is
being, or has been committed, by any person, such person shall be
arrested or, if escaping to shore, shall be immediately pursued and
arrested on shore, or other lawful and appropriate action shall be
taken; or, if it shall appear that a breach of the laws of the United
States has been committed so as to render such vessel, or the
merchandise, or any part thereof, on board of, or brought into the
United States by, such vessel, liable to forfeiture, or so as to
render such vessel liable to a fine or penalty and if necessary to
secure such fine or penalty, such vessel or such merchandise, or
both, shall be seized.
Along with similar Customs powers, Section 89 Coast Guard police authority
has been called the "most sweeping grants of police authority ever to
be written into U.S. law." [see for instance: La Fave s. 10.5(i).]
Read literally, s. 89 gives the Coast Guard plenary search and seizure
power over every vessel under U.S.
This statute, currently broadly due to our war on drugs, gives the Coast
Guard search powers over vessels that are much broader than similar search
powers over cars, houses, or RV's. For instance, for a peace officer to
search an RV, the PO usually does not need a warrant, but must have "probable
cause" to search the vehicle. The Coast Guard, on the other hand, has
statutory power to stop and search a vessel *even in the absence of probable
cause that a crime is being committed*, so long as the stop was for the
purpose of a "safety and document inspection."
Once the CG is properly aboard a vessel, CG officers are given
considerable opportunity to detect illegal activity. They may visit
public areas of the vessel, and observe anything in plain view. They may
enter the hold to search for themain-beam identification, and observe
anything in plain view there. They may legally break open the door to the
main hold if locked. They may enter the private areas of the vessel if
they adjudge it necessary to carry out a document and safety inspection,
and observe anything in plain view. Once aboard a vessel in waters under
U.S. jurisdiction, an individual is subject the the sweeping search and
seizure powers of the Coast Guard.
I remember during the America's Cup in San Diego, my slip was surrounded
by Coast Guard vessels, which were called in to help with crowd control
during the race. They were the nicest, most considerate neighbors one
could hope for, but it didn't escape my notice that they had legal
authority to enter my home, at any time, without my permission, even
while I was in the slip. That is, the basic right to be free from
arbitrary searches in the home was not accorded to me, simply because
I live on a boat.
Interestingly enough, it was exactly the boarding of vessels prior
to the Revolutionary War, along with shops and businesses, that led
to the adoption of the Fourth Amendment in the first place. And now,
the Fourth Amendment is being held not to bar the random boarding of
vessels, anytime they are in the water.
This should not be taken as a criticism of the Coast Guard; as I pointed
out, every CG Officer I have met has been polite, courteous, and helpful.
All I want is the same protection on the water that drivers have on
the road: stop me if you must, but only do so if you think I'm doing
something wrong. This requires a new way of viewing the Fourth Amendment,
rather than general Coast Guard bashing.
Cheers,
John Wallner
Catalina 36, "Lady Liberty"
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