Drug interdiction: The 'search authority' of maritime cops

Multiple courts, in various jurisdictions, have repeatedly decided in favor of random stops to determine compliance with boating safety requirements


The other day I was surfing the web, looking for ideas for my next article when I came across a series of online chat groups which all dealt with the same topic — When can an officer stop and board my boat? Because I often find the opinions of online “legal authorities” amusing, I decided to take a moment to browse the comments.

At first I encountered the expected comments from those who had obviously been on the wrong end of a bad police contact — people complaining about their rights being trampled for no reason, often followed by claims that they would never let another officer check their equipment without a warrant. Next came the advice from well-meaning citizens who agreed that they did not like being “stopped for no reason” but felt that officers where just doing their job and suggested quiet compliance so the officers could finish quickly and be on their way. Finally, there were the “former law enforcement officers” who were quick to inform other readers that the boating officers had “more authority than street cops” and could board your boat whenever they wished.

Was I surprised? No, not really. Like I said earlier, I find these chat boards amusing and generally read them as a momentary escape — not because I expect to learn what a Supreme Court Justice has to say on the topic. But in this instance, I found myself thinking back to a recent case involving a stop made by one of my officers which lead to an arrest for boating under the influence.

The Problem
The case in question involved an operator found to be under the influence after his boat was stopped for a safety inspection. For many officers involved in boating enforcement, this is an example of a standard practice of stopping vessels not because of an observed violation or suspected violation, but because their jurisdiction’s boating regulations allow such stops for the purpose of ensuring compliance with registration and safety equipment requirements.

While the case appeared routine to the officer involved, the prosecutor saw it differently. After reviewing the report, his first question was, “What was your probable cause for the stop?”

My fellow officer was quick to recite his statutory authority to make such a stop, but the prosecutor was not convinced until our office was able to provide some case law to back up that authority. When I thought about it, I agreed that it was not surprising that a young prosecutor — one who was more accustomed to dealing with traffic cases — would be confused by the claim that maritime officers could somehow be granted an authority so drastically different than that of the average officer.

Case Law
So what does this mean? Do we all need to become lawyers? Must we now be prepared to try all our own cases? Of course not, we have a place in the system and so do prosecutors — I do not want to do their job any more than I want them doing mine. But that does not mean we should not be familiar with relevant court rulings. Doing so will help ensure that our cases are as strong as possible, and allow us to offer a little helpful advice when needed.

Here are some court cases to consider — if not necessarily commit to memory — so you have the information someplace in the back of your mind when you need it.

State of Delaware v. Arnold — Superior Court (Sussex) ruled that random inspections of vessels at a public boat ramp, conducted for the purpose of insuring compliance with registration and safety requirements, did not violate the Fourth Amendment. In doing so the court found that these inspections did constitute a search, but lacking a viable alternative the minor intrusion was outweighed by the state’s compelling interest in insuring public safety. Therefore, such a search was reasonable.

U.S. v. Villamonte-Marquez — The Supreme Court held that a statute authorizing custom officials to board any vessel at any time and place — for the purpose of inspecting manifests and other documents — did not violate the Fourth Amendment. The court concluded that the significant differences between boating and motor vehicle operation made alternative methods unlikely. Furthermore, the court found that the lack of outwardly visible signs of compliance made brief stops necessary and reasonable.

Schenekl v. State (Texas) — The Texas Court of Appeals determined that a state law allowing officers to make random stops to insure compliance without probable cause or suspicion was constitutional. In reaching this decision the court found that the State’s high interest in promoting recreational water safety could only be promoted to random checks and that the level of intrusion was minimal and therefore reasonable.

State v. Pike (N.C.) — Court ruled that the stop of a vessel to conduct a safety inspection, without any reasonable suspicion or articulable suspicion of criminal activity, was reasonable and did not violate the defendant’s Fourth Amendment rights. Again, the court pointed to the brief nature of the stop and the state’s overwhelming need to insure public safety.

State v. Casal (Fla.) — Florida Supreme Court found that brief stop to check boat’s registration was not a violation of the Fourth Amendment. Again, the court found that the state’s interests outweighed the defendant’s diminished expectation of privacy.

The Takeaway
Although multiple courts, in various jurisdictions, have repeatedly decided in favor of random stops to determine compliance with boating safety requirements this does not mean that the matter is settled. As we all know, every case is different and every case is subject to review.

Therefore, I would offer the following suggestions to assist you in making sure your case does not become the one that changes the court’s opinion.

1.) Although random stops may be authorized, try to establish probable cause whenever possible. Do not think of this as relinquishing your authority or bowing to outside pressure. Think of it as making the strongest case possible from the beginning.
2.) If a stop is made based upon authorization to inspect safety equipment make sure you finish the inspection even if other violations are discovered. Obviously, there are times when this is not possible but doing so will help avoid claims that such inspections were only being done as a pretext to finding bigger violations otherwise undetectable.
3.) Keep the inspection brief and only to the extent necessary to ensure compliance. One factor the various courts have repeatedly focused on is the minimal level of intrusion, doing other wish may change their perception of what is reasonable.
4.) If your department or jurisdiction has specific guidelines for conducting these checks, such as only at established checkpoints or during daylight hours, do not rely on these cases as an excuse to ignore those agency procedures.

Sources
State v. Arnold, 2001 Del. Super., LEXIS 332
United States v. Villamonte-Marquez, 462 U.S. 579, 77 L. Ed. 2d 22, 103 S. Ct. 2573 (1983)
Schenekl v. State, Tex. Crim. App., 30 S.W.3d 412 (2000)
State v. Pike, 139 N.C. App. 96, 532 S.E.2d 543 (2000)
State v. Casal, Fla. Supr., 410 So. 2d 152 (1982)

About the author

Tom Burrell began his career in maritime enforcement in 1992 when he enlisted in the U.S. Coast Guard, following his service in the USMC Reserves during Desert Storm. He would see service in Key West, (Fla.) Norfolk, Va., and New York City, both afloat and ashore with duties which ranged from drug and alien interdiction to recreational boating safety. During this time he would serve in a variety of positions including boarding team member, boarding officer, boat crew, coxswain, and master helmsman. Achievements include Coxswain “C” School Honor Graduate, numerous Humanitarian Service awards and involvement in several high profile joint operations — including the security for JFK International Airport during the United Nations 50th Anniversary.

In 1997 he left the USCG to pursue a position with the Pennsylvania Fish & Boat Commission as a Waterways Conservation Officer, a position which would include posting in both the rural north central region, and later in suburban Philadelphia. In 2002 he was promoted to patrol supervisor for the South Central Region and received the PA DUI Association “Top Gun” Award for his efforts in apprehending boaters who were under the influence of alcohol or controlled substance. Tom is currently a Captain assigned to Headquarters. He is also an instructor in the areas of firearms, hand gun retention, handcuffing, OC spray, First Aid & CPR, and Boating Under the Influence Detection/Apprehension.

In 2006 Tom received his Associate’s Degree in Criminal Justice from Harrisburg Community College and in 2010 a Bachelor’s Degree from Penn State University. In 2007 and 2008 he was granted the opportunity to address the Northeast Association of Criminal Justice Sciences, during their annual conference at Roger William’s University in Bristol (R.I.), concerning the unique search and seizure authority of conservation officers. When not working or going to school Tom enjoys hunting and fishing near his home in south central Pennsylvania and spending time with his wife Amy, daughters Paige and Johanna, and son Ben.

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  3. Airborne / Maritime

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