Saturday, May 21, 2016

The Coast Guard Doesn't Need A Warrant.

May 21-27, 2016 is National Safe Boating Week. Coming one year after a record number of injuries and fatalities on the Chesapeake Bay, the United States Coast Guard has been actively boarding and inspecting small boats early in this boating season. Social media contains a steady stream of questions about Coast Guard authority to board and inspect small boats without probable cause or a warrant. The concept of probable cause and the Fourth Amendment to the United States Constitution are familiar to us from daily news reports about searches conducted of cars, homes and “suspects.” But every discussion thread includes some very bad information. The Coast Guard’s authority to search every nook and cranny of your boat is not the result of the misperceived government expansion in to our daily lives. The Coast Guard has simply never been restricted by the U.S. Constitution. It has operated as America’s most powerful police force for more than 200 years.
The Revolutionary war ended in 1783. The revolt had cost $400 Million in soldier’s wages, alone, and with no taxing authority the new country was deeply in debt to foreign nations. Six years later, in 1789, the first Congress imposed duties and tariffs on goods brought to the United States to retire the debt. However, the new nation had no means to enforce payment. The lack of domestic policing permitted smugglers to land goods easily along the American coast.
In 1790, the first Congress created the Revenue Cutter Service specifically to collect tariffs and duties on all imported goods. The authority of the RCS was broadly stated:
[I]t shall be lawful for all collectors, and the officers of the revenue cutters herein after mentioned, to go on board of ships or vessels in any part of the United States, or within four leagues [about 12 miles] of the coast thereof, if bound to the United States, whether in or out of their respective districts, for the purposes of demanding the manifests aforesaid, and of examining and searching the said ships or vessels; and the said officers respectively shall have free access to the cabin, and every other part of a ship or vessel 
Under this law, the RCS could board, search, seize and forfeit vessels. When you consider that the Fourth Amendment to the U.S. Constitution was written one year before creation of the RCS, on September 25, 1789, this is a remarkable grant of policing authority. Even after the Fourth Amendment was ratified on December 15, 1791, the RCS authority to board, search and seize remained unchanged for the next seventy five years. 
In 1866, a new law was passed, but only to further strengthen RCS authority to prevent smuggling. It made the powers to board, search and seize even broader by eliminating the “four leagues” geographic limitation. It also gave the RCS broader authority to address "any breach or violation of the laws of the United States." And it authorized, for the first time, the arrest of persons who violated the laws of the United States. The Fourth Amendment was not seen as a limitation on this incredibly broad grant of enforcement power. 
In 1915, the RCS was combined with another agency to form the modern Coast Guard. The new law declared that "[a]ll duties now performed by the Revenue-Cutter Service and Life-Saving Service shall continue to be performed by the Coast Guard.” This included the rights to board, search, seize vessels, and arrest persons found in violation. 
In 1936, Congress adopted what has become the modern grant of authority for Coast Guard searches of your boat. 14 USC 89 (a) now reads: 
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.
 Your boat’s size, or its dedication to recreational use are not factors in whether the Coast Guard will board and search your boat. And more importantly, the Coasties do not require probable cause. 
In 2008, the Department of Homeland Security published its “Small Vessel Security Strategy,” which describes the joint efforts of many enforcement agencies, including the Coast Guard, to identify and limit the threat to maritime infrastructure and military vessels posed by terrorists in small boats. Small vessels are considered high risk delivery systems for contraband, including explosives, because they move so freely among our waterways, and close to sensitive infrastructure. It is no wonder we are at greater risk for unwanted, and unwarranted boarding and inspection. Of course, nobody complains when the Coast Guard renders aid in an emergency.
Author and Chesapeake Bay sailor Carolyn Sienkiewicz wrote a piece that appeared on Cruising World’s website in 2011 describing how her boat was boarded by the Coast Guard. She was sailing the Chesapeake Bay with her husband on their 42 foot sailboat when hailed by the Coast Guard for a safety inspection. She was understandably unnerved by the 25’ Defender Class boat, with machine gun mounted on the foredeck. She later interviewed an Officer from the Coast Guard station: 
A boarding usually sends two officers onto the other vessel. The rest of the crew remains on the response boat, which moves off to a safe distance. Once aboard, the boarding officers quickly assess the situation (number, size, and strength of people; weapons aboard), then proceed with the safety inspection while the other two officers aboard the Coast Guard vessel assure the overall security of the scene. 
Boardings typically fall into one of three categories,” says [Petty Oficer 2nd Class David] Carrier. “A response to a marine incident, such as a tanker grounding or a boating accident. A boat operating in an unsafe fashion. And preventive, in which we check for safety equipment and compliance with U.S. Coast Guard rules and regulations.”… The boardings can be of any type of vessel, whether recreational, commercial (say, a passenger-carrying vessel or workboat), and yes, even dinghies and kayaks. The Coast Guard won’t hesitate to stop or board a sailboat that’s under full sail.
 The Coasties Are Coming, Carolyn Sienkiewicz, posted March 21, 2011 ( checked 5/19/2016) 
Your boat may feel like home, and it may feel like a very private oasis. But in reality, you have far less Constitutional protection against government intrusion on your boat than you do walking along a sidewalk in downtown Baltimore. The government has long reserved to itself absolute entitlement to board and inspect every nook and cranny of your boat, without reasonable suspicion of a crime, and without a warrant.
So stay sober, wear your life jacket, and keep your other safety gear up to date, and happy boating!