Fish v. Brophy

• Decision Date: 15 May 1931
• Parties: FISH v. BROPHY.
• Court: U.S. District Court — Southern District of New York

52 F.2d 198 (1931)

FISH v. BROPHY.

District Court, S. D. New York.

May 15, 1931.

Caruthers Ewing, of New York City, for plaintiff.

George Z. Medalie, U. S. Atty., of New York City (George B. Schoonmaker, Asst. U. S. Atty., of New York City, of counsel), for defendant.

KNOX, District Judge.

This is a motion to strike out affirmative defenses for failure to state facts constituting a defense to this action.

The gist of the action is that defendant stopped plaintiff's pleasure boat in New York Bay, boarding and searching it without a search warrant, and in the absence of probable cause to believe that the boat was being used in violation of the law. The complaint sets forth causes of action for false imprisonment, assault, and unlawful search. Defendant admits he stopped, boarded, and searched the boat, but seeks to justify his action on the ground that he was a Customs Guard acting "solely in the performance of his official duties." He avers he had not theretofore seen plaintiff's boat, and that it was a vessel which never before had appeared in the waters of New York Harbor; that it had failed to stop when ordered and signaled so to do; that at the time he stopped the boat he was under orders to stop and search all motor vessels traveling in the direction in which plaintiff's boat was headed; and that he used no more force than was necessary to stop the vessel, and to compel plaintiff to permit the search.

Defendant contends that the foregoing facts, if established, constitute "probable cause," and that, in any event, the existence of "probable cause" was not necessary to justify the search.

As stated in Dumbra v. United States, 268 U. S. 435, 441, 45 S. Ct. 546, 548, 69 L. Ed. 1032: "`Probable cause' has been defined by this court as `reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged.' Stacey v. Emery, 97 U. S. 642, 645, 24 L. Ed. 1035. Under the foregoing definition, it is apparent that the affirmative allegations on which defendant relies cannot be properly said to have warranted a belief that plaintiff was engaged in an unlawful enterprise.

The basis of defendant's further contention that statutes of the United States authorized his action is to be found under section 581 of the Tariff Act of 1922, 42 Stat. 979 (19 USCA § 481). That section provides that such an officer "may at any time go on board of any vessel or vehicle at any place in the United States or within four leagues of the coast of the United States * * * to examine the manifest and to inspect, search, and examine the vessel or vehicle, and every part thereof, and any person, trunk, or package on board, and to this end to hail and stop such vessel or vehicle, if under way, and use all necessary force to compel compliance. * * *"

This section of the Tariff Act was before the court in Awalt v. United States, 47 F.(2d) 477, 478 (C. C. A. 3d), and it was there said: "Section 581 of the Act of September 21, 1922 (42 Stat. 858 19 USCA § 481) relating to `Boarding Vessels,' authorizes officers of the Coast Guard to go on board of any vessel at any place within the United States or within four leagues of the coast thereof `to examine the manifest and to inspect, search, and examine the vessel * * * and every part thereof, and any person, trunk, or package on board,' etc., without the necessity of establishing probable cause or procuring a search warrant. Arch et al. v. United States (C. C. A.) 13 F.(2d) 382; Maul v. United States, 274 U. S. 501, 529, 530, 47 S. Ct. 735, 71 L. Ed. 1171." The actual holding of the case, however, was that the admission of the vessel's captain to a coast guard that his vessel was loaded with liquor constituted "probable cause" justifying search of the vessel without a warrant.

In Arch v. United States, 13 F.(2d) 382 (C. C. A. 5th), it was held that a Coast Guard had authority to search a vessel without a warrant after finding no manifest when boarding her for inquiry as to cargo and destination, when the vessel was anchored within the twelve-mile limit, even though it was beyond the three-mile limit. The court said, at page 383 of 13 F.(2d): "Some of the material facts conclusively shown by the record are these: The Island Home had been engaged in rum running for about one year and a half before her seizure, coming directly to the coast of the United States from some point in the British West Indies, and there unloading her cargo into small boats, keeping without the three-mile limit. On November 23, 1923, she was observed sailing off the coast of Texas not far from Galveston, presumably looking for a convenient anchorage. She came within the three-mile limit on this trip, but subsequently anchored outside of it, although well within twelve miles of the coast. The day after she anchored two small boats were sighted coming from her direction and about half way between the vessel and the shore. A Coast Guard cutter went out to her, and the officer in command discovered that she was loaded with liquor and did not have a manifest. Apparently part of the cargo had been discharged. Thereupon she was seized and brought into Galveston." At page 384 of 13 F.(2d), the court said: "When the Coast Guard observed her at anchor they had the authority to board her for the purpose of making inquiry as to her cargo and destination, and, finding no manifest, had the right to search without the necessity of procuring a search warrant. Tariff Act of Sept. 21, 1922, § 581 (Comp. St. Ann. Supp. 1923, § 5841h 19 USCA § 481); Carroll v. U. S., 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790. Finding probable cause therefor, the seizure was justified."

It thus appears that the previous history of the vessel in the last-mentioned case gave reasonable grounds for suspecting a violation of law and the court expressly stated there was probable cause justifying the seizure.

In Maul v. United States, 274 U. S. 501, 47 S. Ct. 735, 71 L. Ed. 1171, it was held that officers of the Coast Guard were authorized to seize an American vessel subject to forfeiture...