Somethin a little different

[jimlongley]

Still seems like a warrantless search to me, just as everybody gripes about TSA doing.

Pretty much, accept it's already accepted as the norm in the maritime industry. Maybe this is an example of how TSA will be in a decade?

I've scared people by just wearing coveralls that looked like the USCG's coveralls/uniform from a distance.

So an unconstitutional search should be accepted just because that's the way it's always been done?

At least the TSA can argue that the airlines are a private entity and so on, but this is an invasion of private property without a warrant just because they can.

Rent/buy a boat and go out for an afternoon on an area lake or other body of water and when the game warden/lake patrol/water patrol/Coast Guard, etc. comes up and boards, well, tell them to go away, lemme know how it works out for you. I do NOT agree with them being able to board/search without consent/probably cause, my vessel is my 2nd home (it really is). Things have definitely gone awry. Just because you are on the water it should NOT make a difference, just my nickel (inflation, ya know).

I meant EXCEPT!!!!!!!

I would never in my right mind tell some one to "accept" that. Sorry

Understand, sometimes two different words with the same sound are just two too many to choose from.

[GIJoe]

Title 14, U.S. Code, Section 89 makes it perfectly legal to do a search, quit thinking of state and local LEO rules. These are DHS/DOD rules.

[srothstein]

The question is not which statute applies, but if the statute meets the requirements of the 4th Amendment. That applies to ALL governmental actions and forbids unreasonable searches.

And that is the real key to this debate. Are the current searches, as performed by the Coast Guard reasonable or not? On the face of it, this law (14 USC 89) would appear to violate the Constitution by allowing a search for evidence of a crime with no need to show any reasonable suspicion or probable cause. If this were ever questioned in a court and appealed all the way up, the SCOTUS might as easily rule either way on the law. Much of it would depend on the contact type and details, especially if it was in waters where the boat could have crossed the international border (or met someone who did).

But, we do get to discuss these things and debate them as any citizen might. And we get to render our opinions on the law. As long as everyone recognizes that this is an academic discussion and not something anyone can base actions or legal arguments on, everything is OK.

[GIJoe]

There are exceptions to the 4th amendment, In United States v. Martinez-Fuerte 428 U.S. 543 (1976), the Supreme Court allowed discretionless immigration checkpoints. That and Title 19 of the USC gives the Coast Guard officers e4 and above the power of a Customs agent. As far as being in international waters and then coming back and getting stopped, totally legal. Its the same as going to Mexico and coming across the border. When you hit International waters, you are leaving the USA, and upon return, are subject to search without warrant. This (Warrant-less Customs Searches)is actually written in the 4th amendment as an exception and has been that way for years

[jimlongley]

This (Warrant-less Customs Searches)is actually written in the 4th amendment as an exception and has been that way for years

"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 probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Could you show me where that clause is?

What the Coast Guard is doing is conducting unreasonable warrantless searches, and just because they are getting away with it doesn't justify it. I also don't see any exception for crossing international boundries. Maybe this is where the TSA gets their justification.

[suthdj]

This (Warrant-less Customs Searches)is actually written in the 4th amendment as an exception and has been that way for years

"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 probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Could you show me where that clause is?

What the Coast Guard is doing is conducting unreasonable warrantless searches, and just because they are getting away with it doesn't justify it. I also don't see any exception for crossing international boundries. Maybe this is where the TSA gets their justification.

I would have to agree with you with 1 exception or is it acception were does US law end and maritime law begin?

[jimlongley]

This (Warrant-less Customs Searches)is actually written in the 4th amendment as an exception and has been that way for years

"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 probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Could you show me where that clause is?

What the Coast Guard is doing is conducting unreasonable warrantless searches, and just because they are getting away with it doesn't justify it. I also don't see any exception for crossing international boundries. Maybe this is where the TSA gets their justification.

I would have to agree with you with 1 exception or is it acception were does US law end and maritime law begin?

I could be wrong, but my belief is that maritime law corresponds with international waters. And maybe the 4th would not apply for such a search conducted in international waters, but I don't see any justification

And another corollary: The Coast Guard gets to "inspect" your vessel without a warrant because you may have crossed a border, so, by extension, the FBI can inspect your vehicle because you crossed a state line; and the state police can inspect because you crossed a county line; and the county sheriffs; and the city police; and the town cop.

Nope, not buying that logic. At least the TSA has the reasoning that you are using a private carrier and forsaking some rights to do that (the "don't like to be inspected at the airport checkpoint, then take the bus" attitude.)

And a previous poster said the Coasties get to do a safety inspection of ANY vessel, but a "safety" inspection, just like a trooper stopping your car to do a "safety" inspection and finding something illegal but not safety related, inadmissable as evidence because the search was not warranted. The Coasties touching and unloading a gun, a legally possessed gun, and possibly recording its serial number for criminal investigation, is a warrantless search in violation of the 4th amendment. And how do they know it was legally possessed? They must assume it is, or get a warrant on suspicion that it isn't, but the warrant can't be based on their observing it while conducting a "safety" inspection, which would be . . .

Sorry, that whole Coast guard crew needs to be arrested.

[bayouhazard]

And another corollary: The Coast Guard gets to "inspect" your vessel without a warrant because you may have crossed a border, so, by extension, the FBI can inspect your vehicle because you crossed a state line;

The "border patrol" conducts checkpoints far inside the US border.

[GIJoe]

Research through the WHole law not just the Elementary school version

http://www.gpoaccess.gov/constitution/html/amdt4.html" onclick="window.open(this.href);return false;

Page 1241 of the US Constitution reads

" Vessel Searches.--Not only is the warrant requirement
inapplicable to brief stops of vessels, but also none of the safeguards
applicable to stops of automobiles on less than probable cause are
necessary predicates to stops of vessels. In United States v.
Villamonte-Marquez,\74\ the Court upheld a random stop and boarding of a
vessel by customs agents, lacking any suspicion of wrongdoing, for
purpose of inspecting documentation. The boarding was authorized by
statute derived from an act of the First Congress,\75\ and hence had
``an impressive historical pedigree'' carrying with it a presumption of
constitutionality. Moreover, ``important factual differences between
vessels located in waters offering ready access to the open sea and
automobiles on principal thoroughfares in the border area'' justify
application of a less restrictive rule for vessel searches. The reason
why random stops of vehicles have been held impermissible under the
Fourth Amendment, the Court explained, is that stops at fixed
checkpoints or roadblocks are both feasible and less subject to abuse of
discretion by authorities. ``But no reasonable claim can be made that
permanent checkpoints would be practical on waters such as these where
vessels can move in any direction at any time and need not follow
established `avenues' as automobiles must do.''\76\ Because there is a
``substantial'' governmental interest in enforcing documentation laws,
``especially in waters where the need to deter or apprehend smugglers is
great,'' the Court found the ``limited'' but not ``minimal'' intrusion
occasioned by boarding for documentation inspection to be
reasonable.\77\ Dissenting Justice Brennan argued that the Court for the first time was
approving ``a completely random seizure and detention of persons and an
entry onto private, noncommercial premises by police officers, without
any limitations whatever on the officers' discretion or any safeguards
against abuse.''\78\

[Lambda Force]

Research through the WHole law not just the Elementary school version

I'll stick with the real US Constitution not the watered down version corrupted by its enemies.

[jimlongley]

Research through the WHole law not just the Elementary school version

http://www.gpoaccess.gov/constitution/html/amdt4.html" onclick="window.open(this.href);return false;

Page 1241 of the US Constitution reads

" Vessel Searches.--Not only is the warrant requirement
inapplicable to brief stops of vessels, but also none of the safeguards
applicable to stops of automobiles on less than probable cause are
necessary predicates to stops of vessels. In United States v.
Villamonte-Marquez,\74\ the Court upheld a random stop and boarding of a
vessel by customs agents, lacking any suspicion of wrongdoing, for
purpose of inspecting documentation. The boarding was authorized by
statute derived from an act of the First Congress,\75\ and hence had
``an impressive historical pedigree'' carrying with it a presumption of
constitutionality. Moreover, ``important factual differences between
vessels located in waters offering ready access to the open sea and
automobiles on principal thoroughfares in the border area'' justify
application of a less restrictive rule for vessel searches. The reason
why random stops of vehicles have been held impermissible under the
Fourth Amendment, the Court explained, is that stops at fixed
checkpoints or roadblocks are both feasible and less subject to abuse of
discretion by authorities. ``But no reasonable claim can be made that
permanent checkpoints would be practical on waters such as these where
vessels can move in any direction at any time and need not follow
established `avenues' as automobiles must do.''\76\ Because there is a
``substantial'' governmental interest in enforcing documentation laws,
``especially in waters where the need to deter or apprehend smugglers is
great,'' the Court found the ``limited'' but not ``minimal'' intrusion
occasioned by boarding for documentation inspection to be
reasonable.\77\ Dissenting Justice Brennan argued that the Court for the first time was
approving ``a completely random seizure and detention of persons and an
entry onto private, noncommercial premises by police officers, without
any limitations whatever on the officers' discretion or any safeguards
against abuse.''\78\

Doesn't appear to be part of the 4th Amendment to me.

And the OP's vessel does not appear to have been boarded for documentation inspection, particularly since they went below decks without the owner and touched items which are patently not related to documentation.

Since the Coast Guard and the TSA both are part of DHS, I have to wonder about the obvious relationship of 4th Amendment abuses.

[GIJoe]

well, it's already been taken to the supreme court before, and the US SCOTUS has deemed that this type of search is legal, it has been challenged many times, and is still upheld. Me being an MP in the Army, if i was on this type of search, I would not let the patrons of the vessel to come along with the search for safety reasons, because I do not know the people on board and could be, until doubt has left my mind that they are not breaking any federal laws, ie bringing more illegals across by sea, bringing drugs, or illegal weapons into our country. Many people have different views on this type of search. but it's exactly the same as going through customs at an airport or on the road at the border. If they do not conduct these searches, then that opens the sea to illegals, drug and weapons traffickers and others that we don't need. The OP didn't do anything wrong, he was allowed to go on without incident. No harm, no foul. Now whether you agree or disagree with what the law states, just remember that this has been brought before SCOTUS before and was found as a LEGAL search. I, personally, agree with it. You are entitled to your opinion on the law, if it happens to you, please spend your life savings and report back to us on your legal loss.

PS if you cant find that part of the 4th, look at the link i gave in my last post, it gives the SCOTUS cases and the wording

[srothstein]

GIJoe,

You are making a few mistakes in your argument that need to be cleared up. The first and most important is what the Foruth Amendment says. The whole Constitution, with all of its amendments, is only a couple pages long. The page you quoted is neither the constitution nor the law. It is instead a textbook explanation of several viewpoints on the Constitution and the related cases. Many times, this is called an annotated version. It is important to realize the difference between the limited wording of the actual law and the annotations explaining court cases.

The second point to be cleared up is exactly what we are discussing. You are correct about the current state of the law and what it allows in the way of Coast Guard searches. You are somewhat correct about the case you are referring to and what it ruled. What people are discussing here, as I understand it, is not what the current state of the law is but what it should be. We are generally discussing the reasonability of the Coast Guard search. As I was saying earlier, this is much more of an academic discussion of how we feel than what we think anyone should or could do.

With that cleared up, let me state that the current law, as you referred to it, is on the face of it unconstitutional, IMO. The case you referred to does not contradict me fully, but allows for a limited stop of vehicles for "documentation" checks. Much of this is deeply rooted in history and is probably always going to be reasonable in the eyes of the court. For example, no one here is disagreeing about a border check. I even agreed that if I had crossed the border, a customs type check would be reasonable. I went further and stipulated that if I had gone near enough to international waters to meet with someone who had crossed the border, a stop of my boat might be very reasonable for a customs inspection.

But the law allows for much more than a border check or a documentation check. It specifically allows any boat to be stopped for any search at any time and in any location. This is a violation of the Fourth Amendment as far as I can determine it by being too broad. For example, if I have a small 17' canoe that I am using in the summer on the Missouri river near Leavenworth Kansas, the law would allow the Coast guard to stop me and search my vessel at random, with no probable cause nor suspicion. This is not just a documentation check. This is not a border check. This is just a random search of my personal property for no reason. BTW, I chose this location because there is a Coast Guard unit stationed there. The same would be true if I were in Canyon Lake outside of San Antonio with a 21' ski boat.

I think that this is an area that is just waiting for the right circumstances to be challenged to the SCOTUS. And, as a former MP and a retired Texas Peace Officer, I know that many court cases are based on the very specific circumstances of the case and can overturn a previous case. It would appear that the previous case was based on a documentation check (or the report was written that way). In the OP's case, if we assume that running the serial number had found the weapon to be stolen, there is a good chance that the search would have been ruled unconstitutional as having exceeded the reasonableness of the documentation check.

[jimlongley]

well, it's already been taken to the supreme court before, and the US SCOTUS has deemed that this type of search is legal, it has been challenged many times, and is still upheld.

No, each of those cases was different and the decision was specific to that case,

Me being an MP in the Army,

Would normally know that MPs operate under different rules dealing with military personnel.

PS if you cant find that part of the 4th, look at the link i gave in my last post, it gives the SCOTUS cases and the wording

And as an MP, you should also know that those decisions you cited do not amend the original amendment in any way, they are in no way "part" of the amendment, and all it would take is the concurrence of 5 people to wipe out any or ALL of those decisions. There has never been any change to the wording of the 4th Amendment.

And far from being "no harm, no foul" the very fact that they handled his firearm while being on board his vessel is harm and foul, and the possibility that the serial number and other characteristics have been recorded and now reside in a federal database is a violation of current law and SCOTUS decisions.

[bilgerat57]

Actually, what occured was a 'safety inspection' of the vessel. The coast guard is charged with insuring that any vessels operating inside the territorial waters of the USA are in compliance with US laws. The safety inspection can be as little as verifying the paperwork, or as complete as opening every nook and cranny to confirm the absence of foreign insects...... More often than not, if they are met with courtesy and respect you will be on your way with minimal intrusion. The safety of any people aboard the vessel is the prime consideration, but the sfety of the Cast Guard personnel is equally important. We can argue constitutionality all day long, but as a LEO, would you feel comfortable leaving a functional, loaded firearm readily available to an individual you didn't know? Especially while you are in a vulnerable position with your attention focused on re-boarding your vessel? How far can you go to ensure your safety and the safety of your fellow agents/officers before falling foul of the sometimes variable limits of constitutional interpretation? I'm not picking a side here, I'm just pointing out the complexities involved. We need to balance the needs of both sides of the coin. The Coast Guard does a magnificent job of saving lives and keeping vessels in a safe condition, but they are not comprehensively trained or funded as a LEA. The only inconvenience in this instance was the few seconds required to re-load and store the weapon. I'm gratified that they informed the owner of their action as they departed. All things considered, I would have been content with the experience.