Beware - long post.
This is one of those topics that really riles some folks. My intention is not to start some sort of debate, but I find the article below very illuminating. It deals with the unique powers granted to the Coast Guard, something most of us are probably somewhat aware of.
The article is by Wm. G. Smith, an Admiralty Lawyer who used to be quite active in the Usenet boating groups (Google Groups Search). In the article below, he lays out many facts regarding the Coast Guard's powers, and puts things in perspective better than other writings I've seen on the subject.
Without futher ado...
The question. If the US Constitution reigns supreme over statutory Federal law, then how does Admiralty law provide the authority for boat boardings, which would otherwise seem to violate the Bill of Rights?
The answer is provided by Wm. G. Smith, Admiralty Lawyer, who writes:
What follows are just random musings, off the top of my head. I believe they will prove a pretty good outline of the general principles involved, and I expect that's good enough for Usenet. If you have a serious problem, you would do well to retain local counsel.
It's not the Admiralty Law, but the Federal Statute, 14 U.S.C. 89 that confers these sweeping powers on Officers, Warrant Officers and Petty Officers of the USCG (which leaves open the question of whether a seaman can board your vessel without permission - since he's probably carrying the riot shotgun for the boarding party, I wouldn't test the issue from the deck of my boat, but it's an interesting intellectual exercise).
In general, here's how it works:
The Fourth Amendment does not bar all searches and seizures, only unreasonable ones. What's reasonable varies according to circumstances. A search of a building must meet a higher standard than a search of a boat, car or airplane because these objects can be quickly removed from the jurisdiction. Such highly mobile items can usually be searched without a warrant but the officer still needs probable cause.
A car for example: The officer cannot stop your car because he wants to search it, but if he has lawfully stopped your car for say, speeding, he can look into the car and inspect, visually, whatever is in plain view. If he spots something in plain view - a bag of dope, an illegal gun - he can arrest.
Also, if he has a suspicion that something illegal is afoot he may, for his own safety, pull the driver and occupants out of the car for a "Terry Frisk" (from Terry v. Ohio). This reasonable suspicion is something considerably less than probable cause but is allowed because the officer's safety is involved. He can also search the areas in the immediate vicinity of the suspect (under the driver's seat or in the glove box) because a weapon could easily be concealed there and the suspect could get at it.
Another exception to the warrant requirement is the Chimel Sweep (from California v. Chimel). Again, the justification is the safety of the officers. If officers are otherwise lawfully in a house or building, they can quickly sweep through the place, checking in closets, under beds and other places where a hidden assailant might be lurking.
Another exception to the warrant requirement is the administrative or regulatory search. (Camarra v. San Francisco, See v. City of Seattle) The regulatory officer (usually not a cop, but a safety inspector or civil servant) can go into a building or other place as part of a scheme of random safety inspections or health inspections or whatever as long as the scheme is truly random. While there, if he sees any contraband in plain view he may or may not report it to the police who may or may not come back with a warrant.
Now here's what happens with the Coast Guard.
The CG has authority to enforce federal boating safety standards, vessel documentation schemes and marine pollution and fisheries regulations (random regulatory search). To accomplish these inspections, they have authority under 14 USC 89 to go onboard any vessel in US waters and any US vessel on the high seas. But under 14 USC 89, Coast Guardsmen are not mere regulatory officials - they are full blown cops with all the authority of the FBI, Secret Service or ATF to make arrests, etc.
So under 14 USC 89, the Coast Guardsman can lawfully board any vessel in US waters since he is not only a cop but a regulatory officer. But once onboard he is also a cop so that if in the course of his regulatory inspection he sees, in plain view, some contraband, he can seize it and arrest the crew. Because the Coast Guard has so many regulatory functions, the Coast Guardsman as regulatory inspector can go almost anywhere in the vessel and inspect almost anything. Once he is lawfully in a place and he spots any contraband in plain view, he becomes a Customs Officer or DEA agent, or Border Patrol Officer and seizes the evidence and starts arresting people. To do a document check, he has to see the main beam number. So he can lawfully go down into the hold. To do a pollution check, he can get down into the bilge or in the head. For fisheries he can look in the fish hold; for a boating safety check, he can open engine compartments. He is trained to do all these things and to OMIT NONE OF THEM IN EVERY BOARDING HE DOES. If the crew starts acting strange, making the officer feel uneasy, he can also do a Chimel sweep, and a Terry frisk.
No other law enforcement officer, federal or state, has such sweeping authority. None. Someone in this email UseNet thread suggested that local cops are sometimes deputized as federal officers and they then get the same power, at least when they are on the water. Not true. ONLY THE COAST GUARD OFFICER, WARRANT OFFICER OR PETTY OFFICER has this authority. All other federal and state officers (except maybe customs) need probable cause to get on board your vessel. And even though Customs might be able to get on board without probable cause, they cannot go anywhere and do anything. Customs has no authority to check Marine Sanitation Devices so they can't inspect the head. They have no safety authority so they cannot check for fire extinguishers, life jackets, flame arresters, VHF-Radio, etc.
In short, the Coast Guardsman's regulatory authority makes it lawful for him to go on board any vessel and while there go into every part of the vessel and minutely inspect it. If in the course of this extremely thorough inspection, the Coast Guardsman spots any contraband "in plain view" he can seize it and arrest the master and crew. Also, if during the course of this extremely intrusive search, the master or crew start acting surly or"suspicious" the Coast Guardsman can do a Chimel Sweep and a Terry Frisk. Each of these exceptions to the warrant or probable cause requirement seem reasonable enough when taken by itself, but because the Coast Guardsman has such wide responsibility under federal environmental, vessel documentation, fisheries, commercial vessel safety, boating safety and marine pollution, the Coast Guardsman is the only officer who is in a position to use all of the exceptions at once. Essentially, what this means is that the Coast Guardsman is the only law enforcement officer in America to whom the Fourth Amendment does not apply, at least when he is on a vessel.
Wm. G. Smith
Admiralty Lawyer
P.O. Box 3017
Framingham, Mass. 01705
(508)877-3119
This is one of those topics that really riles some folks. My intention is not to start some sort of debate, but I find the article below very illuminating. It deals with the unique powers granted to the Coast Guard, something most of us are probably somewhat aware of.
The article is by Wm. G. Smith, an Admiralty Lawyer who used to be quite active in the Usenet boating groups (Google Groups Search). In the article below, he lays out many facts regarding the Coast Guard's powers, and puts things in perspective better than other writings I've seen on the subject.
Without futher ado...
The question. If the US Constitution reigns supreme over statutory Federal law, then how does Admiralty law provide the authority for boat boardings, which would otherwise seem to violate the Bill of Rights?
The answer is provided by Wm. G. Smith, Admiralty Lawyer, who writes:
What follows are just random musings, off the top of my head. I believe they will prove a pretty good outline of the general principles involved, and I expect that's good enough for Usenet. If you have a serious problem, you would do well to retain local counsel.
It's not the Admiralty Law, but the Federal Statute, 14 U.S.C. 89 that confers these sweeping powers on Officers, Warrant Officers and Petty Officers of the USCG (which leaves open the question of whether a seaman can board your vessel without permission - since he's probably carrying the riot shotgun for the boarding party, I wouldn't test the issue from the deck of my boat, but it's an interesting intellectual exercise).
In general, here's how it works:
The Fourth Amendment does not bar all searches and seizures, only unreasonable ones. What's reasonable varies according to circumstances. A search of a building must meet a higher standard than a search of a boat, car or airplane because these objects can be quickly removed from the jurisdiction. Such highly mobile items can usually be searched without a warrant but the officer still needs probable cause.
A car for example: The officer cannot stop your car because he wants to search it, but if he has lawfully stopped your car for say, speeding, he can look into the car and inspect, visually, whatever is in plain view. If he spots something in plain view - a bag of dope, an illegal gun - he can arrest.
Also, if he has a suspicion that something illegal is afoot he may, for his own safety, pull the driver and occupants out of the car for a "Terry Frisk" (from Terry v. Ohio). This reasonable suspicion is something considerably less than probable cause but is allowed because the officer's safety is involved. He can also search the areas in the immediate vicinity of the suspect (under the driver's seat or in the glove box) because a weapon could easily be concealed there and the suspect could get at it.
Another exception to the warrant requirement is the Chimel Sweep (from California v. Chimel). Again, the justification is the safety of the officers. If officers are otherwise lawfully in a house or building, they can quickly sweep through the place, checking in closets, under beds and other places where a hidden assailant might be lurking.
Another exception to the warrant requirement is the administrative or regulatory search. (Camarra v. San Francisco, See v. City of Seattle) The regulatory officer (usually not a cop, but a safety inspector or civil servant) can go into a building or other place as part of a scheme of random safety inspections or health inspections or whatever as long as the scheme is truly random. While there, if he sees any contraband in plain view he may or may not report it to the police who may or may not come back with a warrant.
Now here's what happens with the Coast Guard.
The CG has authority to enforce federal boating safety standards, vessel documentation schemes and marine pollution and fisheries regulations (random regulatory search). To accomplish these inspections, they have authority under 14 USC 89 to go onboard any vessel in US waters and any US vessel on the high seas. But under 14 USC 89, Coast Guardsmen are not mere regulatory officials - they are full blown cops with all the authority of the FBI, Secret Service or ATF to make arrests, etc.
So under 14 USC 89, the Coast Guardsman can lawfully board any vessel in US waters since he is not only a cop but a regulatory officer. But once onboard he is also a cop so that if in the course of his regulatory inspection he sees, in plain view, some contraband, he can seize it and arrest the crew. Because the Coast Guard has so many regulatory functions, the Coast Guardsman as regulatory inspector can go almost anywhere in the vessel and inspect almost anything. Once he is lawfully in a place and he spots any contraband in plain view, he becomes a Customs Officer or DEA agent, or Border Patrol Officer and seizes the evidence and starts arresting people. To do a document check, he has to see the main beam number. So he can lawfully go down into the hold. To do a pollution check, he can get down into the bilge or in the head. For fisheries he can look in the fish hold; for a boating safety check, he can open engine compartments. He is trained to do all these things and to OMIT NONE OF THEM IN EVERY BOARDING HE DOES. If the crew starts acting strange, making the officer feel uneasy, he can also do a Chimel sweep, and a Terry frisk.
No other law enforcement officer, federal or state, has such sweeping authority. None. Someone in this email UseNet thread suggested that local cops are sometimes deputized as federal officers and they then get the same power, at least when they are on the water. Not true. ONLY THE COAST GUARD OFFICER, WARRANT OFFICER OR PETTY OFFICER has this authority. All other federal and state officers (except maybe customs) need probable cause to get on board your vessel. And even though Customs might be able to get on board without probable cause, they cannot go anywhere and do anything. Customs has no authority to check Marine Sanitation Devices so they can't inspect the head. They have no safety authority so they cannot check for fire extinguishers, life jackets, flame arresters, VHF-Radio, etc.
In short, the Coast Guardsman's regulatory authority makes it lawful for him to go on board any vessel and while there go into every part of the vessel and minutely inspect it. If in the course of this extremely thorough inspection, the Coast Guardsman spots any contraband "in plain view" he can seize it and arrest the master and crew. Also, if during the course of this extremely intrusive search, the master or crew start acting surly or"suspicious" the Coast Guardsman can do a Chimel Sweep and a Terry Frisk. Each of these exceptions to the warrant or probable cause requirement seem reasonable enough when taken by itself, but because the Coast Guardsman has such wide responsibility under federal environmental, vessel documentation, fisheries, commercial vessel safety, boating safety and marine pollution, the Coast Guardsman is the only officer who is in a position to use all of the exceptions at once. Essentially, what this means is that the Coast Guardsman is the only law enforcement officer in America to whom the Fourth Amendment does not apply, at least when he is on a vessel.
Wm. G. Smith
Admiralty Lawyer
P.O. Box 3017
Framingham, Mass. 01705
(508)877-3119
