Saunders v. State, 2D99-2156.

Decision Date10 May 2000
Docket NumberNo. 2D99-2156.,2D99-2156.
PartiesLivingston K. SAUNDERS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Larry D. Justham of Law Office of Peter D. Ringsmuth, Fort Myers, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee and Richard M. Fishkind and Angela D. McCravy, Assistant Attorneys General, Tampa, for Appellee.

CAMPBELL, Acting Chief Judge.

Appellant, Livingston K. Saunders, challenges the trial court's denial of his motion to suppress. After the denial, appellant pleaded no contest to the charge of operating a vessel on the waters of the state while under the influence (section 327.35, Florida Statutes (1997)), and reserved his right to appeal the denial of his dispositive motion to suppress. We affirm.

On October 2, 1998, Petty Officer Battle of the United States Coast Guard, together with a marine unit of the Fort Myers Police Department, was patrolling the waters of the Caloosahatchee River in the vicinity of the Edison Bridge in Fort Myers. Appellant conceded at oral argument that the United States has jurisdiction over those waters. Petty Officer Battle, operating a twenty-one-foot Coast Guard vessel, was in the process of randomly boarding vessels on the Caloosahatchee River to insure compliance with federal laws and regulations when, at approximately 9:20 p.m., he stopped and boarded a twenty-one-foot Mako open fisherman pleasure craft occupied and operated solely by appellant.

During the time that Petty Officer Battle was on board appellant's vessel conducting his inspection, he was accompanied by a Fort Myers police officer. Petty Officer Battle described his activities as a "4100 Administrative Boarding," which he explained as follows: "4100 is a form that the Coast Guard uses to conduct basically an administrative boarding to check and make sure that the vessel is in compliance with all federal and applicable laws."

As a result of the "4100 Inspection," appellant was cited for three violations for failure to have required personal flotation devices on board his vessel. Appellant also appeared to be under the influence of intoxicants. Prior to stopping appellant and boarding his vessel, Petty Officer Battle had seen appellant leaving Shooters, a local drinking establishment. After observing appellant's apparently intoxicated condition on board his vessel, Petty Officer Battle conducted various field sobriety tests and determined that appellant was unable to safely operate his vessel. Consequently, Petty Officer Battle turned appellant over to the Fort Myers police officer, who arrested appellant for the offense for which he was ultimately convicted.

Even though appellant argues that Coast Guard Petty Officer Battle had no plenary authority to stop and board his vessel unless the vessel was in international waters or was capable of venturing into international waters, he conceded at oral argument that the United States has jurisdiction over the waters at issue here. He argues, therefore, that Petty Officer Battle, under the circumstances in this case, had no authority to board his vessel in the absence of a reasonable suspicion of unlawful activity. In support of his position, appellant relies on United States v. Gollwitzer, 697 F.2d 1357 (11th Cir.1983), Blair v. United States, 665 F.2d 500 (4th Cir.1981), United States v. Williams, 544 F.2d 807 (5th Cir.1977), and Chi v. State, 421 So.2d 670 (Fla. 3d DCA 1982).

The fallacy of appellant's argument is that all of the cases he relies upon interpreted the rights of customs officers (and Coast Guard officers acting as agents of the U.S. Customs Service) in enforcing the customs laws of the United States and were decided prior to the Supreme Court's decision in United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983). In Villamonte-Marquez, the Supreme Court made a clear distinction between a boarding that is initiated as a document check and a boarding by customs or Coast Guard officers that is initiated for other reasons. A boarding that is initiated as a document check for the purpose of ensuring compliance with customs and maritime laws and regulations does not require the officer to possess a reasonable suspicion of unlawful activity while a boarding that is initiated for other reasons requires that the boarding officer possess a reasonable suspicion of unlawful activity. Specifically, Villamonte-Marquez held that customs officers could board vessels under the customs statute, 19 U.S.C. § 1581, to perform the functions authorized by that statute without a reasonable suspicion of unlawful activity. Customs officers' authority is provided in 19 U.S.C. § 1581 as follows:

§ 1581. Boarding vessels

(a) Customs officers
Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act [19 U.S.C.A. 1701 et seq.], or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.

Similarly, the scope of a Coast Guard officer's authority to board a vessel in waters over which the United States has jurisdiction in order to carry out inspections mandated by law is contained in 14 U.S.C. § 89, which provides:

§ 89. Law enforcement

(a) 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.
(b) The officers of the Coast Guard insofar as they are engaged, pursuant to the authority contained in this section, in enforcing any law of the United States shall:
(1) be deemed to be acting as agents of the particular executive department or independent establishment charged with the administration of the particular law; and
(2) be subject to all the rules and regulations promulgated by such department or independent establishment with respect to the enforcement of that law.
(c) The provisions of this section are in addition to any powers conferred by law upon such officers, and not in limitation of any powers conferred by law upon such officers, or any other officers of the United States.

The primary issue in enforcing these enactments is whether the actions authorized by statutes such as 14 U.S.C. § 89 and 19 U.S.C. § 1581 are overly intrusive of Fourth Amendment rights. The Supreme Court in Villamonte-Marquez holds that they are not. Perhaps Justice Brennan in his dissent capsules the holding of the court best when he states:

The Court today holds ... that police on a roving, random patrol may stop and board any vessel, at any time, on any navigable waters accessible to the open sea, with no probable cause or reasonable suspicion to believe that there has been a crime or a border crossing, and without any limits whatever on their discretion to impose this invasion of privacy.

In Villamonte-Marquez, customs officers, accompanied by Louisiana State policemen, were patrolling the Calcasieu River Ship Channel, some eighteen miles inland from the Gulf coast when they sighted a forty-foot sailboat anchored on the west side of the channel. A customs officer and an officer of the Louisiana State Police, admittedly without a reasonable suspicion of unlawful activity, boarded the vessel and asked to see the vessel's documents. While examining the documents offered for examination, the customs officers smelled burning marijuana and, looking through an open hatch, observed what subsequently proved to be 5800 pounds of baled marijuana. The two individuals on the sailboat were arrested and subsequently convicted in United States District Court of conspiracy to import marijuana. The Fifth Circuit Court of Appeals reversed the convictions, finding that the boarding of the sailboat was not reasonable under the Fourth Amendment in the absence of a reasonable suspicion of a law violation. The Supreme Court granted certiorari because of a conflict among the circuits and because of "the importance of the question ... as it affects the enforcement of Customs laws." Id. at 584, 103 S.Ct. 2573.

The Supreme Court reversed the holding of the Fifth Circuit and held that the boarding of the sailboat, even in the absence of a reasonable suspicion of unlawful activity, was a proper exercise of authority granted customs officers under the authority of 19 U.S.C. § 1581(a), and...

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