United States v. Taylor, CR-80-21.

• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)
• Writing for the Court: PANNER
• Citation: 488 F. Supp. 475
• Parties: UNITED STATES of America, Plaintiff, v. Henry Nathan TAYLOR and Rodney Dean Mullins, Defendants.
• Docket Number: No. CR-80-21.,CR-80-21.
• Decision Date: 22 April 1980

488 F. Supp. 475

UNITED STATES of America, Plaintiff,
v.
Henry Nathan TAYLOR and Rodney Dean Mullins, Defendants.

No. CR-80-21.

United States District Court, D. Oregon.

April 22, 1980.

488 F. Supp. 476

Sidney I. Lezak, U. S. Atty., William W. Youngman, Asst. U. S. Atty., Portland, Or., for plaintiff.

Ted M. Miller, McCormick & Reynolds, Portland, Or., for defendants.

OPINION

PANNER, Judge:

Defendants by motion to suppress have challenged the constitutionality of a search of the fishing vessel "Marian F." while the vessel was docked in Astoria, Oregon. The United States contends that the particular search was authorized by 16 U.S.C. § 772d(a), which provides as follows:

The provisions of the Convention and of this subchapter and any regulations issued under this subchapter shall be enforced by the Coast Guard, the Customs Service, and the National Oceanic and Atmospheric Administration. For such purposes any officer of the Coast Guard, Customs, or National Oceanic and Atmospheric Administration may at any time go on board of any vessel in territorial waters of the United States, or any vessel of the United States or Canada in Convention waters, except in the territorial waters of Canada, to address inquiries to those on board and to examine, inspect, and search the vessel and every part thereof and any person, trunk, package or cargo on board, and to this end may hail and stop such vessel, and use all necessary force to compel compliance.

There is no substantial dispute about the facts. Special agents of the National Oceanic and Atmospheric Administration were suspicious that halibut were being caught illegally by the commercial fishing boat "Piky". During the surveillance of the "Piky," they saw a box being thrown into a pickup from another vessel, the "Marian F.". The pickup then moved off at a high rate of speed. One of the officers, with an Oregon State Policeman, followed, stopped the pickup, and asked the driver, Mullins, as to the contents of the box. Mullins told them the box contained his laundry. Inspection confirmed the accuracy of his statement. They then advised Mullins they were going to search the "Marian F." and requested that he accompany them. He declined, advising that he was tired and was going home to bed. The officers told him that unless he returned with them and unlocked the vessel they would search it anyway. Mullins then agreed to return and unlock the vessel. On the search, the officers found four illegal halibut among some 10-12,000 pounds of fish. Possession was taken of the halibut and this challenge results.

Prior to the search, the officers involved had no reasonable or articulable suspicion to believe that the crew of the "Marian F." had violated any laws or that the "Marian F." contained any evidence of any violation. When the officers stopped the pickup, they had already made the decision to search the "Marian F." that evening with or without permission.

At the time the pickup was stopped and thereafter, Mullins did not feel he was free to leave and felt compelled to accompany the officers back to the "Marian F." to unlock the vessel. There was no implied or actual consent by Mullins or any party to authorize the search of the "Marian F.".

Mullins, along with the other members of the crew of the "Marian F.," had a possessory interest in the catch of roughly 12,000 pounds of fish by reason of the fact that they each owned a share.

The United States contends that under 16 U.S.C. § 772d(a) no warrant is necessary, no reasonable cause for search is required and that the officers can search any vessel at any time of the day or night at their individual discretion.

This section of the Northern Pacific Halibut Act has not been subject to judicial interpretation. The United States relies primarily upon Fifth Circuit interpretations of 14 U.S.C. § 89(a) (Coast Guard Statute). It allows Coast Guard officers to board any vessel at any time to address inquiries to

488 F. Supp. 477

those on board, examine the ship's documents, inspect and search the vessel and to use all necessary force to compel compliance. The two statutes are very similar. Both permit boarding to occur at any time. Both permit the boarding of any vessel. The Halibut Act permits the search for the purpose of enforcing the Northern Pacific Halibut Act. The Coast Guard statute permits the search for the prevention, detection and suppression of violations that involve the United States generally. Neither explicitly requires reasonable cause or a warrant

The Fifth Circuit, in United States v. Warren, 578 F.2d 1058 (5th Cir. 1978) (en banc), rehearing en banc denied in part, 586 F.2d 608, 609 (5th Cir.), granted in part, 589 F.2d 254 (5th Cir. 1979), found the Coast Guard statute constitutional and held that authority to apprehend and board a vessel is plenary when...