The US Coast Guard and Border Patrol can and do board any vessel in the slip or out sailing without any probable cause. There are been numerous reports in Houma, LA of the Border Patrol and US Coast Guard boarding recreational vessels (sailboats and power) in the ICW. As a former student of Constitutional Law these meritless boardings give me great pause, and I recall the Fourth Amendment of the US Constitution.
Sail Magazine did a great article about the very topic in October 2012 which I will reprint here. Definitely worth the read. In fact lets take it a step further and contact your Congressman and Senator about changing The law of 1790 Revenue Cutter to now exempt recreational vessels from suspicionless searches.
Personal Handwritten Letters seems to have a heavier weight to the Congressmen (when I worked for a special interest group)
The Honorable (Contact Your US Representative)
U.S. House of Representatives
Washington, DC 20515
The Honorable (Contact Your US Senator)
US Senate
Washington, D.C. 20510
Coast Guard Boardings and Your Fourth Amendment, Part 1
Coast Guard Boardings and Your Fourth Amendment, Part 2
Coast Guard Boardings and Your Fourth Amendment, Part 3
"Sorry, but when it comes to Coast Guard boardings, you don’t have any rights.
I’m surprised how many boaters don’t know this. The US Coast Guard can board your boat any time they want, and look anywhere they want, without probable cause or a warrant. They can do this on the open sea, or while you’re asleep aboard in your marina at midnight. They can look through your bedsheets, in your lockers, in your bilges, in your jewelry box, or in your pockets. They can do it carrying just their sidearms, or they can do it carrying assault rifles. They can be polite about it or they can be rude, but mostly they’re polite.
If you’re an avid boater you can expect to be boarded every year or two.
I explain this to my guests aboard Condesa, some of whom are lawyers, and I’m met with disbelief: “But that’s a blatant violation of your constitutional rights! They need probable cause, or a warrant from a judge!”
The U.S. Coast Guard Boarding Policy:
Title 14 section 89 of the United States Code authorizes the U.S. Coast Guard to board vessels subject to the jurisdiction of the United States, anytime, any place upon the high seas and upon any waterway over which the United States has jurisdiction, to make inquires, examinations, inspections, searches, seizures, and arrests. The U.S. Coast Guard does not require a warrant to conduct search, seizures, arrests over any United States Waterway or high seas. The U.S. Coast Guard also have full legal law enforcement power on any land under the control of the United States, as needed to complete any mission.
Sweeping powers. In a paper in the William and Mary Law Review, law scholar Greg Shelton says, “In terms of enforcement power, Coast Guard boarding officers are clearly America's "supercops."” Another law scholar, Megan Jaye Kight, says, "As such, these provisions comprise what has been accurately characterized as 'one of the most sweeping grants of police authority ever to be written into U.S. law.'"
If you’d like to know a little more detail about the boarding policy, here’s a longer document, meant for the public, in the Coast Guard’s own words.
And here’s an article by a retired Coast Guard captain and Coast Guard legal counsel. The pull quote kind of says it all: “There are two main ways to board a vessel—either with permission, or without.”
I’ve been boarded by the Coast Guard five times. They’ve always been very polite, and I’ve never resisted, thus incurring the penalty of ten years in prison and a $10,000 fine. They asked permission to board, but since they were going to board anyway no matter what I said, I said yes.
Once, offshore, the captain of a Coast Guard cutter told me by radio to prepare for a boarding, and ordered me to maintain my course and speed. It was pretty rough, and I was under full sail and solo, so I replied, “How about if I drop my sails and lie ahull? It’s going to be pretty hard for your guys to get aboard right now.”
“Skipper, maintain your course and speed.”
When their inflatable came alongside, it was indeed bouncing all over the place, and they had a tough time just coming alongside, much less getting someone aboard. When the first boarding officer finally made it over the lifelines he slipped on my aft deck—one of those slips where his feet were actually higher than his head before he crashed down—and he landed right on his sidearm. (Did I mention that deck was wet?) I could see tears in his eyes as he suffered through the inspection protocol.
Nobody could have many criticisms for the Coast Guard’s Search and Rescue operations. Dedicated Coast Guard personnel rescue us when we’re in trouble and yes, guard our coasts. As I’ll explain in Part 3, the boarding policy isn't their doing. They might not like these boardings either. Entering some strange boat with strange people aboard is fraught with uncertainty and risk, and they’d probably rather be out doing real Coast Guard stuff instead of checking the bilges on a Tayana 37.
Sorry, but when it comes to Coast Guard boardings, you don’t have any rights.
I’m surprised how many boaters don’t know this. The US Coast Guard can board your boat any time they want, and look anywhere they want, without probable cause or a warrant. They can do this on the open sea, or while you’re asleep aboard in your marina at midnight. They can look through your bedsheets, in your lockers, in your bilges, in your jewelry box, or in your pockets. They can do it carrying just their sidearms, or they can do it carrying assault rifles. They can be polite about it or they can be rude, but mostly they’re polite.
If you’re an avid boater you can expect to be boarded every year or two.
I explain this to my guests aboard Condesa, some of whom are lawyers, and I’m met with disbelief: “But that’s a blatant violation of your constitutional rights! They need probable cause, or a warrant from a judge!”
“Not on a boat, my friend, not on a boat.”
The U.S. Coast Guard Boarding Policy:
Title 14 section 89 of the United States Code authorizes the U.S. Coast Guard to board vessels subject to the jurisdiction of the United States, anytime, any place upon the high seas and upon any waterway over which the United States has jurisdiction, to make inquires, examinations, inspections, searches, seizures, and arrests. The U.S. Coast Guard does not require a warrant to conduct search, seizures, arrests over any United States Waterway or high seas. The U.S. Coast Guard also have full legal law enforcement power on any land under the control of the United States, as needed to complete any mission.
Sweeping powers. In a paper in the William and Mary Law Review, law scholar Greg Shelton says, “In terms of enforcement power, Coast Guard boarding officers are clearly America's "supercops."” Another law scholar, Megan Jaye Kight, says, "As such, these provisions comprise what has been accurately characterized as 'one of the most sweeping grants of police authority ever to be written into U.S. law.'"
If you’d like to know a little more detail about the boarding policy, here’s a longer document, meant for the public, in the Coast Guard’s own words.
And here’s an article by a retired Coast Guard captain and Coast Guard legal counsel. The pull quote kind of says it all: “There are two main ways to board a vessel—either with permission, or without.”
I’ve been boarded by the Coast Guard five times. They’ve always been very polite, and I’ve never resisted, thus incurring the penalty of ten years in prison and a $10,000 fine. They asked permission to board, but since they were going to board anyway no matter what I said, I said yes.
Once, offshore, the captain of a Coast Guard cutter told me by radio to prepare for a boarding, and ordered me to maintain my course and speed. It was pretty rough, and I was under full sail and solo, so I replied, “How about if I drop my sails and lie ahull? It’s going to be pretty hard for your guys to get aboard right now.”
“Skipper, maintain your course and speed.”
When their inflatable came alongside, it was indeed bouncing all over the place, and they had a tough time just coming alongside, much less getting someone aboard. When the first boarding officer finally made it over the lifelines he slipped on my aft deck—one of those slips where his feet were actually higher than his head before he crashed down—and he landed right on his sidearm. (Did I mention that deck was wet?) I could see tears in his eyes as he suffered through the inspection protocol.
Nobody could have many criticisms for the Coast Guard’s Search and Rescue operations. Dedicated Coast Guard personnel rescue us when we’re in trouble and yes, guard our coasts. As I’ll explain in Part 3, the boarding policy isn't their doing. They might not like these boardings either. Entering some strange boat with strange people aboard is fraught with uncertainty and risk, and they’d probably rather be out doing real Coast Guard stuff instead of checking the bilges on a Tayana 37.
A Coast Guard boarding isn’t the end of the world, but guests who don’t know the routine think the boat is being raided, and it certainly shuts down the party. Again, boardings are usually routine and polite.
But sometimes they’re not so polite, as in an episode in Moss Landing a few years ago. The Coast Guard boarded and searched boats in a marina at 10:30 p.m., with assault rifles in hand. Some of the marina tenants were asleep and awakened to boots on their decks. During boardings, many boaters feel threatened or harassed.
Often when the Coast Guard boards a vessel at night, they approach with their running lights extinguished, and they seldom answer radio calls. This is scary to most boaters, because who else might be approaching in the middle of the night with no lights? If the Coast Guard is operating in foreign waters where piracy is common, everyone aboard will be terrified for their lives by the time the coasties finally identify themselves. A friend of mine was tailed in this manner for eight hours off the Baja coast before, surprise!, it's us, the US Coast Guard! In legal terms this is called--seriously--the "fright factor."
In the post-9/11 world the Coast Guard has added duties, and added weaponry. Instead of a couple of sailors in a rubber boat with big Mae West life jackets and sidearms, a common sight is coasties with assault rifles in high speed inflatables with M-240 machine guns mounted bow and stern. Just the presence of all this weaponry makes many nervous or afraid.
I’m not someone who sleeps with a copy of the US Constitution under his pillow, but as “the supreme law of the United States of America,” I take it to be the governing document of my relationship with my government. The first ten amendments to the constitution are called the Bill of Rights, and many have died defending them. Here’s what the Fourth Amendment says:
Amendment IV 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.
Over the years and many Supreme Court cases, the Fourth Amendment has been interpreted to mean that without a warrant or probable cause law enforcement can’t search your car, your office, your mountain cabin, your pocket, or your wood shed. According to the Constitution, law enforcement personnel can’t search anywhere in your private universe without probable cause or a warrant issued by a judge.
Except your boat: They can board your boat any time they please and look anywhere they want without warning, warrant, or cause, and they do so every day. This is called a “suspicionless search.Why can the Coast Guard search our boats without a warrant or probable cause, when the police can’t search our homes, cars, offices, motorhomes etc.?
It’s always been this way. The same congress that passed the Bill of Rights passed the Revenue Service Act of 1790, which gave revenue cutters the right to search any vessel anywhere in US waters, and any US-flagged vessel anywhere in the world.
Our fledgling nation was strapped for cash, and tariffs were the way to solvency. This was controversial even back in 1790, since many of our gripes against the British, as stated in our Declaration of Independence, had to do with tariffs (see Boston Tea Party). The crews of revenue cutters were allowed to board vessels to make sure they’d paid the tariffs on their cargoes.
Since 1790 the Coast Guard has been shaken up, mishmashed, and passed around like a red-headed stepchild, but the Revenue Service Act of 1790 has only gone through minor changes.
The modern Coast Guard is an amalgamation of five federal agencies: the Revenue Cutter Service, the Lighthouse Service, the Steamboat Inspection Service, the Bureau of Navigation, and the Lifesaving Service. The Coast Guard, as a named entity, wasn’t created until 1915 under Woodrow Wilson. For much of its history it was part of the Treasury Department. In times of war it sometimes falls under the Navy’s command and sometimes acts on its own, but Coast Guardsmen and their predecessors have fought in every war in our nation’s history.
Now the Coast Guard is part of the Department of Homeland Security, with added counter-terrorism and intelligence responsibilities.
The Coast Guard is not represented on the Joint Chiefs of Staff, yet carries out military and quasi-military operations. The top brass constantly complains that the Coast Guard is ignored and underfunded. “Support on Capitol Hill is about five miles wide and one inch deep,” said a retired Coast Guard vice commandant. Ignored and underfunded, yet it has the most sweeping search and seizure powers ever thrust on US citizens.
Why do they board us and search us, and what are they looking for?
If you ever ask why you, in particular, got singled out from all the boats on the water that day, the boarding officer will say these exact words: “I’m not a liberty to say.” Since there is no requirement for probable cause, they don't need a reason. It’s just bad luck, or maybe they didn’t like the cut of your jib.
Most of what they’re doing is training. Boarding strange vessels on the high seas is a big part of their job, and our boats are good practice. Many coasties don’t come from a boating background—or certainly haven’t been on a sailboat—and they’ve got learn the ropes.
They’re checking our documentation, safety gear, seeing if we’re drunk, and checking for environmental violations. Are we dumping oil/fuel/sewage into our precious waterways? It’s common to check bilges for oily water, and if there’s an automatic bilge pump in that oily water, we’re so busted.
They’re also checking for fisheries violations, people smuggling, arms smuggling, and drug smuggling. Twenty-six percent of Coast Guard activities are related to drug interdiction, and they are looking for illegal narcotics on every vessel during every boarding.
Considering what we’ve come to expect of our Fourth Amendment rights on land--No, officer, you can’t come in my house and have a look around--suspicionless searches of our boats don’t feel right to most of us. I lived aboard for ten years, and I consider my boat to be my private home. The salons, staterooms, and bunks on our boats are just like our living rooms, bedrooms, and beds at home: Ours, personal, private, and not open for random tours or training missions by strangers.
Some argue that because boats don’t have license plates like cars, the Coast Guard has to board us to check our documentation, but boats either have numbers, a name and hailing port, or both, and these can be seen easily. Any confusion with a boat’s identity can be sorted out by radio or by coming within hailing distance. By the way, the average Coast Guard vessel has advanced optical equipment and digital cameras: When you can barely make out individuals aboard their cutter, they’re reading the numbers off your iPhone.
They’re checking our safety gear (for our own safety, of course) but the police can’t randomly inspect our cars for seat belts, air bags, good brakes, or child seats, nor can they enter our homes to check the gas shut-off, the backflow preventer, or the tags on our mattresses.
Most of us have the right safety gear to protect ourselves and our crew, and most sailors have more safety gear than required: The Coast Guard doesn’t require EPIRBs, radios, LifeSlings, harnesses, jacklines, or any number of items that most sailors consider standard equipment.
They’re protecting the environment, but the police can’t perform random smog checks on cars, or enter our homes to make sure we’re not pouring used motor oil down the bath tub drain.
In short, the justifications for suspicionless searches at sea would never stand up on land, where they would seem downright un-American.
The Coast Guard has terrorists to catch, drugs to interdict, people smugglers to stop, and environmental hazards to avert, but none of these aims are met by suspicionless boardings of recreational craft. They’d have the same odds going door to door in residential neighborhoods, or randomly pulling cars over on the road to search them for bombs, drugs, human traffic, or leaking plutonium. They might get lucky every once and a while, but the way almost all real busts take shape is through probable cause, tips, or old fashioned police work.
What are some alternatives to suspicionless searches of our boats, how could they come to pass, and why hasn’t the Revenue Service Act of 1790 been overturned or revised?
Various parties have challenged Coast Guard boardings and suspicionless searches in the highest courts, but the courts have consistently upheld the Coast Guard’s right to board vessels under the Revenue Cutter Act of 1790, and its subsequent variations.
Unfortunately, the highest profile cases have been for drug busts. Plaintiffs who really are drug smugglers are less sympathetic to the public.
A boater who’s a bit miffed about a Coast Guard search usually gets over it after a few weeks and takes it no further than kvetching to his friends. He doesn’t spend hundreds of thousands of dollars and years of his life trying to overturn a 222-year-old law.
And under this law, the Coast Guard boarding teams continue to do their jobs. We should only gripe about boarding parties if they are rude, threatening, or do something ridiculous or unprofessional.
But one detail might give pause to an conscientious coastie. They all have to take an oath that goes like this:
“I____do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same, that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office I am about to enter. So help me God.”
Maybe they need to change it to:
“I____do solemnly swear (or affirm) that I will support and defend the Constitution of the United States, except the Fourth Amendment part. Except for the Fourth Amendment I will defend the Constitution against all enemies..."
With regard to the Revenue Cutter Act of 1790, things have changed a lot since 1790. Back then there were essentially no recreational vessels. Almost all vessels were merchant vessels or warships. Revenue cutters had to be able to rein them in to collect taxes and control contraband. Today most vessels on most bodies of water in the US are recreational. These recreational boats aren’t carrying taxable cargo - they’re just carrying us.
Perhaps private, recreational vessels should just be exempt from suspicionless searches under 14 U.S.C. § 89 . Sorry, merchant vessels, you’re probably not too crazy about surprise boardings either, but you were the original target of the law.
Several constitutional law scholars bristle over suspicionless searches. I’ve read several law review articles on the subject, and let me tell you, if you’re not a lawyer they make great bedtime reading.
The best was Constitutional Barriers to Smooth Sailing: 14 U.S.C. § 89(a) and the Fourth Amendment, by Megan Jaye Kight. She suggests: “The government certainly has a vital interest in ensuring that vessels on the high seas are safe, seaworthy, and properly documented. However, this interest should not be advanced at the cost of sacrificing the constitutional freedoms of law-abiding seafarers.”
Ms. Kight goes on to suggest that instead of suspicionless searches at the discretion of the boarding officer, our boats get annual, scheduled safety inspections. If, on average, our boats get boarded by the coasties every year or two anyway, a scheduled search wouldn’t take up any more time or man hours. If they could knock a bunch of us off at one time, say by inspecting all the boats in the same marina, this would save time over random boardings.
At first blush this sounds like a costly administrative nightmare, but most of our boats get surveyed every year or two for insurance or marina safety anyway. Perhaps a survey from an accredited marine surveyor could substitute for a Coast Guard inspection? Or a safety inspection, and award of sticker, from the Coast Guard Auxiliary? Any of these options would be preferable to a surprise boarding, but still, our homes and cars aren’t subject to regular safety inspections, planned or unplanned.
If a vessel is entering the US from abroad, it should be open to search, just like a car crossing an international border. But a recreational vessel on a lake or river, where it can’t even have contact with the greater ocean or the countries that border it?
I could even live with searches being allowed on any vessel that ventures offshore. After all, the vessel could have come from who-knows-where, or could have rendezvoused with people smugglers, a drug shipment, or terrorists.
In the Coast Guard's documentation, and on all charts, inland waters are delineated from offshore and near coastal waters. Inside of this line our Fourth Amendment rights could kick in. For voyages that originate and terminate in inland waters, vessels could not be boarded without a warrant or probable cause.
If you’re waving a bottle of Jack Daniel’s yelling, “Woohoo, I’m the King of England!”, leaving an oil slick behind you, running at night with no lights, or towing a child in your wake, well, there's their probable cause.
For boaters who live near international borders, like San Diego, the Coast Guard would have reasonable suspicion they’d gone to a foreign country every time they left the harbor. Sorry, San Diegans.
So what does it take to have our constitutional rights extended to the water, an Act of Congress?
Actually yes, I think it would take an Act of Congress. I’m no lawyer, but court cases hinge on case law and precedence, and when we’ve got 222 years of precedence for suspicionless searches, not even the Supreme Court can just have a change of heart. The next time they try a Coast Guard boarding case under the Fourth Amendment, I’m guessing it will go the way it’s gone ever since the Revenue Cutter Act of 1790. For the law to change, it would take a movement in Congress--with pressure from a grass roots movement that starts right here!--to extend privacy rights to the water.
Boaters don’t represent a powerful force in politics, but we should. The latest statistics show 16 million registered boats in this country, and 75 million citizens who have been boating in the last year, and are thus classified as boaters. This is nearly a quarter of the nation, all of whom could be searched, and thus deprived of their Fourth Amendment rights, just by stepping on a boat.
Coast Guard personnel are generally polite, and for the most part treat the public with respect, but they’re human, have bad days, and turn very sour if you question their broad authority. While the average boarding lasts twenty minutes, they often order boats to return to the dock and delay voyages for an hour or two. This ruins an outing, and few boaters would welcome a surprise boarding. And someday the guys with the guns might not be so polite and professional, and then we’ll want the law on our side.
I’ll close with the words of Ms. Megan Jaye Kight, my favorite Constitutional law scholar:
“The inconsistencies and ambiguities in this area of the law require resolution. Until less intrusive alternatives are implemented through legislative action, the courts must ensure that the guarantees of the Fourth Amendment are not assaulted, for the "shield against unreasonable searches does not rust on exposure to salt air.""
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