U.S. v. Piner

• Decision Date: 05 September 1979
• Docket Number: No. 78-2565,78-2565
• Citation: 608 F.2d 358
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. John Walter PINER and Salvatore Joseph Gallina, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 358

608 F.2d 358

UNITED STATES of America, Plaintiff-Appellant, v. John Walter PINER and Salvatore Joseph Gallina, Defendants-Appellees.

No. 78-2565.

United States Court of Appeals, Ninth Circuit.

Sept. 5, 1979.

Floy E. Dawson, Asst. U. S. Atty., San Francisco, Cal., on brief; Sanford Svetcov, Asst. U. S. Atty., San Francisco, Cal., argued, for plaintiff-appellant.

Joel A. Shawn (argued), Kipperman, Shawn, Kecker & Brockett, San Francisco, Cal., on brief; Kim S. La Valley, San Francisco, Cal., argued, for defendants-appellees.

On Appeal from the United States District Court for the Northern District of California.

Before MERRILL and KENNEDY, Circuit Judges, and KING, ^* District Judge.

MERRILL, Circuit Judge:

The question presented here is whether the boarding by the Coast Guard of a boat in San Francisco Bay for a routine document and safety inspection, without warrant and without probable cause to believe or founded suspicion that a violation of the law had occurred, was a reasonable search under the Fourth Amendment.

On the basis of marijuana seized on board their boat, appellees were indicted for importation of marijuana, possession with intent to distribute and conspiracy to import and distribute, in violation of 21 U.S.C. §§ 952(a), 841(a)(1), 963 and 846. Their motion to suppress as evidence the seized marijuana was granted by the district court and this appeal was taken by the government under 18 U.S.C. § 3731. We affirm.

On the evening of January 12, 1978, a United States Coast Guard cutter was cruising the waters of San Francisco Bay on a routine patrol. At approximately 6:30 p.m. the crew spotted the running lights of appellees' 43-foot sailboat, the "Delphene," and the decision to board was made. It was stipulated that the only purpose for stopping and boarding was for "a routine safety inspection," that it was done "on a random basis," and that "there were no suspicious circumstances." The "Delphene" was hailed; the cutter was identified as Coast Guard and the "Delphene" was instructed to prepare to be boarded. On board the "Delphene" the boarding officer displayed his credentials and advised that his boarding was for a routine safety inspection. At the same moment he observed through an open door what appeared to be bags of marijuana, in plain view in a lighted cabin below the deck. He immediately placed appellees under arrest. The boat was seized and a thorough search was conducted. Over two tons of marijuana were recovered.

Under 46 U.S.C. § 1454 the secretary of the department in which the Coast Guard operates ¹ is assigned the duty of issuing regulations establishing minimum safety standards for boats. Under 14 U.S.C. § 2 the Coast Guard is assigned the duty to "administer laws and promulgate and enforce regulations for the promotion of safety of life and property on the high seas and on all waters subject to the jurisdiction of the United States * * *." The express statutory authority for boarding is 14 U.S.C. § 89(a), which provides in part:

"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."

The record establishes by affidavit of a Coast Guard commander that safety inspection of a pleasure boat under applicable regulations consists of the following:

(1) Stopping and boarding of the boat.

(2) Checking boat registration papers and personal identification of the boat owner.

(3) Inspecting the boat for number, condition and storage of life jackets and fire extinguishers.

(4) Inspecting the engine for backfire flame arrestor, closed compartments for proper ventilation ducts, and bilges for spilled oil or fuel to prevent explosion and fire.

While dockside inspection of commercial craft is feasible, since such craft are subject to rigorous safety regulations with compliance required at all times, in the case of pleasure boats the requirements are less burdensome. The modest equipment requirements apply only when the boat is in use. 33 C.F.R. §§ 175.1 and 177.01. Life jackets and fire extinguishers may be stored at home, relatively safe from theft, when the boat is not in use. Accordingly, it is the Coast Guard practice to inspect such craft only when they are underway.

Random boarding of boats by the Coast Guard under § 89(a) has been upheld by the Fifth Circuit sitting en banc. United States v. Warren, 578 F.2d 1058 (5th Cir. 1978). There it was held that as to American Flag vessels located outside the 12-mile limit the boarding need not be founded on any particularized suspicion, and that once having boarded the Coast Guard may conduct documentation and safety inspections. Id. at 1064-65. The similar authority of customs officers under 19 U.S.C. § 1581 was recognized in United States v. Freeman, 579 F.2d 942, 946 (5th Cir. 1978).

Here, the district court held that the random stop and search violated the Fourth Amendment on the authority of Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); and Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Those cases dealt with the question of whether a search conducted without warrant could be upheld because of the particular need for and nature of an administrative search. The appeal in this case centered on that question, the government contending that lack of warrant was excused under United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) and Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970).

After argument in this case the Supreme Court decided Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Prouse dealt with whether an inspection stop and search, lawful without warrant, is nevertheless unreasonable if there is no probable cause to believe or founded suspicion that a violation is in progress and if choice of the decision to stop and search is left to the sole discretion of the officer in the field. We called for further briefing as to the effect of that decision.

Prouse dealt with the random stop of an automobile by state police for a check of driver's license and registration. In discussing the constitutionality of the stop the court noted that the effect of the Fourth Amendment is "to impose a standard of 'reasonableness' upon the exercise of discretion by government officials." 440 U.S. at 653-54, 99 S.Ct. at 1396. As to the proper test the court stated:

"(T)he permissibility of a particular law-enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Id. at 654, 99 S.Ct. at 1396.

Delaware contended that "the State's interest in discretionary spotchecks as a means of ensuring the safety of its roadways outweighs the resulting intrusion on . . . privacy . . ." Id. at 655, 99 S.Ct. at 1397.

This the Court rejected. On the record before it, the Court could not say that a spot check is "a sufficiently productive mechanism to justify the intrusion . . ." Id. at 659, 99 S.Ct. at 1399. It noted that checkpoint stops were available as an alternative, citing United States v. Martinez-Fuerte, 428 U.S. 543, 558, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), where the Court noted that such stops were less intrusive than the random stop of a single car: " 'the subjective intrusion the generating of concern or even fright on the part of lawful travelers is appreciably less in the case of a checkpoint stop.' " 440 U.S. at 656, 99 S.Ct. at 1397. It quoted United States v. Ortiz, 422 U.S. 891, 894-95, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975) as saying " 'At traffic checkpoints, the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority and he is much less likely to be frightened or annoyed by the intrusion.' " 440 U.S. at 657, 99 S.Ct. at 1398. The Court in Prouse ruled, "Given the alternative mechanisms available, both those in use and those that might be adopted, we are unconvinced that the incremental contribution to highway safety of the random spotcheck justifies the practice under the Fourth Amendment." Id. at 659, 99 S.Ct. at 1399.

The government contends that Prouse is distinguishable on many grounds including the fact that checkpoint stops at sea are not practicable and that data here support the usefulness of random stops. ² It points to the long history of Coast Guard boarding authority and notes that stops without probable cause or suspicion are expressly authorized by Congress and are the subject of Coast Guard regulations. It asserts that random stops are the only practicable means of ascertaining pleasure craft compliance with safety regulations, and that without authority to conduct random stops the congressional purpose of maritime safety will, in the case of pleasure craft, be frustrated.

These contentions are forceful, and they pose difficult questions regarding the reasonableness of random stops by the Coast Guard. However, under the facts of this case we do not find it necessary to answer them. Instead we assume, Arguendo, that the governmental interest in securing compliance with safety regulations outweighs the intrusion on privacy encountered in the ordinary boarding.

However, we note that a concept of subjective intrusion was introduced by the Court in Martinez-Fuerte and...