U.S. v. Albers

• Decision Date: 16 September 1997
• Docket Number: No. 96-10561,96-10561
• Citation: 136 F.3d 670
• Parties: , 98 Cal. Daily Op. Serv. 1125 UNITED STATES of America, Plaintiff-Appellant, v. Mark ALBERS; Jim T. Freegard; David Moran; Erin Moran; David Pierce; Carmel Presse; Lyle Presse J.; Jeff Schabs; Mark Sheehan; Kirk Smith; David M. Strobel; Steve Van Horn, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 670

136 F.3d 670

1998 A.M.C. 1017, 98 Cal. Daily Op. Serv. 1125

UNITED STATES of America, Plaintiff-Appellant, v. Mark ALBERS; Jim T. Freegard; David Moran; Erin Moran;

David Pierce; Carmel Presse; Lyle Presse J.; Jeff Schabs;

Mark Sheehan; Kirk Smith; David M. Strobel; Steve Van

Horn, Defendants-Appellees.

No. 96-10561.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 16, 1997. ^*

Decided Feb. 17, 1998.

As Amended on Denial of Rehearing March 20, 1998.

Scott Bales, Assistant United States Attorney, Phoenix, AZ, for plaintiff-appellant.

Fred M. Morelli, Jr., Aurora, IL, for defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Roger G. Strand, District Judge, Presiding. D.C. No. CR-95-00448-RGS.

Before KOZINSKI, MAYER ^** and FERNANDEZ, Circuit Judges.

KOZINSKI, Circuit Judge:

National Park Service rangers discovered Mark Albers and his friends (collectively, "Albers") in a rented houseboat floating on Lake Powell, Arizona. Suspecting Albers was BASE jumping ¹ in a national recreation area, a federal crime, the rangers searched the houseboat. During the search they seized videotapes and undeveloped film as well as parachutes, helmets and other equipment. Albers was arrested and charged with violating 36 C.F.R. §§ 2.17(a)(3) and 2.34(a)(4). He moved to suppress the evidence seized by the rangers; the district court granted the motion as to the videotapes and film, reasoning that the rangers should have examined them at the time and place of the search, rather than taking them away and viewing them several days later. In this interlocutory appeal, the government argues that the film and videotapes fall within the closed container rule of United States v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985). Because we may affirm on any basis supported by the record, Rosenbaum v. Hartford Fire Ins. Co., 104 F.3d 258, 261 (9th Cir.1996), Albers challenges the search and seizure on other grounds as well. ²

Albers claims that the entire houseboat search was illegal because the rangers did not first obtain a search warrant. The law is well settled that "absent exigent circumstances, a warrantless entry to search for ... contraband is unconstitutional even when ... there is probable cause to believe that incriminating evidence will be found within." Payton v. New York, 445 U.S. 573, 587-88, 100 S.Ct. 1371, 1381, 63 L.Ed.2d 639 (1980). But there are exceptions. The government asserts-and the district court held-that the lack of a warrant did not render the search illegal because houseboats are covered by the vehicle exception to the warrant requirement.

Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), held that warrantless searches of automobiles were justified "where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Id. at 153, 45 S.Ct. at 285. Later Supreme Court cases found a second rationale: "Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office." South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976). This is so because "[a]utomobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements." Id. at 368, 96 S.Ct. at 3096.

No Supreme Court case directly extends the vehicle exception to houseboats, but in California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), the Court came close when it held that a readily mobile motor home could be searched without a warrant because both justifications for the vehicle exception applied:

While it is true that respondent's vehicle possessed some, if not many of the attributes of a home, it is equally clear that the vehicle falls clearly within the scope of the exception laid down in Carroll and applied in succeeding cases. Like the automobile in Carroll, respondent's motor home was readily mobile. Absent the prompt search and seizure, it could readily have been moved beyond the reach of the police. Furthermore, the vehicle was licensed to operate on public streets; was serviced in public places; ... and was subject to extensive regulation and inspection.

Carney, 471 U.S. at 393, 105 S.Ct. at 2070 (internal citations and quotation marks omitted). Though a motor home has the characteristics of both a home and a motor vehicle, it is the latter characteristics that govern in applying the Fourth Amendment's warrant requirement.

Whether Albers' houseboat falls within the vehicle exception depends on whether, for purposes of Carney, houseboats are the same as motor homes. This is a question of first impression in our circuit but one the Tenth Circuit has resolved without much difficulty. See United States v. Hill, 855 F.2d 664, 668 (10th Cir.1988). In Hill, defendants sought to suppress evidence obtained during the warrantless search of their houseboat. Id. at 666. Noting that no case dealt with houseboat searches, Hill looked to cases involving motor vehicle searches, focusing particularly on Carney. Id. at 667. Because houseboats, like motor homes, are readily capable of functioning as both vehicles and homes, and the Supreme Court considered and resolved the tension created by this dual nature, Hill concluded that Carney controls. Id. at 668. We agree with the Tenth Circuit and hold that the vehicle exception applies to houseboats so long as Carney 's requirements are met.

Carney first asks whether the vehicle was "obviously readily mobile by the turn of an ignition key, if not actually moving." Carney, 471 U.S. at 393, 105 S.Ct. at 2070. Albers' houseboat was found in open public waters, obviously mobile. Carney also asks whether there was "a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling[.]" Id. Albers had such a reduced expectation of privacy because at any time an authorized person could have stopped and boarded his boat "to determine compliance with regulations pertaining to safety equipment and operation." See 36 C.F.R. § 3.5(a). Indeed, the government's traditional power to board a vessel is far greater than its power to enter a motor home or a car, see United States v. Villamonte-Marquez, 462 U.S. 579, 592, 103 S.Ct. 2573, 2581-82, 77 L.Ed.2d 22 (1983) (suspicionless boarding of ships for inspection of documents not contrary to Fourth Amendment). Finally, Carney asks whether "the vehicle was so situated that an objective observer would conclude that it was being used not as a residence, but as a vehicle." 471 U.S. at 393. We recognize that in many situations it will be objectively apparent that a houseboat is being used as a home and not a vehicle. ³ However, in Hill, the Tenth Circuit noted that "an objective observer would conclude that a moving boat navigating the waters of a large lake on a cold winter night was not being used as a residence." 855 F.2d at 668. Similarly, since Albers had moved his houseboat to open waters on a large lake, an objective observer would conclude that he was using the houseboat as a vehicle. Carney 's requirements were satisfied and Albers' houseboat could be searched without a warrant.

Albers argues that even if the rangers could search the boat without a warrant, this particular search and seizure was...