United States v. Taylor

Decision Date22 April 1980
Docket NumberNo. CR-80-21.,CR-80-21.
PartiesUNITED STATES of America, Plaintiff, v. Henry Nathan TAYLOR and Rodney Dean Mullins, Defendants.
CourtU.S. District Court — District of Oregon

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 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 exercised beyond the twelve-mile limit. No particularized suspicion was required. In Warren, the boarding of the "Stormy Seas" occurred approximately 700 miles from the United States to conduct documentation and safety inspections. During the inspections, probable cause for search became apparent. In United States v. Odom, 526 F.2d 339 (5th Cir. 1976), the Court sustained a search by the Coast Guard 200 miles at sea, where the initial boarding was to conduct a routine safety and documentation inspection of the "Mar-J-May". Upon inspection and while searching for the main beam identification number, it was necessary to open the hold and marijuana was discovered. In United States v. One (1) 43 Foot Sailing Vessel, 538 F.2d 694 (5th Cir. 1976), the Coast Guard boarded the "Winds Will" at night, approximately 15 miles west of Cuba for a safety inspection. She was running without lights in the Yucatan Channel. After boarding, smell and plain view observations led to the discovery of 2,000 pounds of marijuana. The Court sustained forfeiture of the vessel.

The Ninth Circuit recently construed the Coast Guard statute in United States v. Piner, 608 F.2d 358 (9th Cir. 1979). The Coast Guard boarded the 43-foot sailboat, the "Delphene," for a routine safety inspection on a random basis. There were no suspicious circumstances. The boarding occurred after dark at approximately 6:30 p. m. The "Delphene" was hailed, the cutter identified as Coast Guard and the "Delphene" was instructed to prepare to be boarded. As the boarding officer was displaying his credentials and advising that the boarding was for routine safety check, he observed through an open door what appeared to be bags of marijuana in plain view in a lighted cabin below the deck. The boat was seized and over two tons of marijuana were recovered. The Court, after evaluating the Fifth Circuit decisions and the decision in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), concluded that the random stop and boarding of a vessel after dark, for safety and registration inspection, without cause to suspect non-compliance, was not justified by the governmental need to enforce compliance with safety regulations and constituted a violation of the Fourth Amendment. The Court further held that a stop and boarding after dark must be for cause with at least a reasonable and articulable suspicion of noncompliance, or, in the...

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4 cases
  • Tallman v. Department of Natural Resources
    • United States
    • Michigan Supreme Court
    • February 11, 1985
    ...772d(a), unconstitutional for its failure to provide sufficient safeguards to the privacy interests of individuals. United States v. Taylor, 488 F.Supp. 475 (D Or, 1980). Special agents of the National Oceanic and Atmospheric Administration saw a box being thrown into the back of a truck fr......
  • Balelo v. Klutznick
    • United States
    • U.S. District Court — Southern District of California
    • July 24, 1981
    ...Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); United States v. Piner, 608 F.2d 358 (9th Cir. 1979); United States v. Taylor, 488 F.Supp. 475 (D.Or.1980), on the whole, deference has been shown to the congressional determination of the standard of reasonableness. Colonnade Cateri......
  • People v. Barnes
    • United States
    • Court of Appeal of Michigan — District of US
    • January 22, 1986
    ...interpreted, the Michigan statute avoids the overbroad legislative grant of discretion to officers found invalid in United States v. Taylor, 488 F.Supp. 475 (D. Or., 1980). The administrative search authorized by the legislation involved in that case permitted a search at any time, of any v......
  • Powe v. GEORGIA PAC. CO., INC., K 77-539.
    • United States
    • U.S. District Court — Western District of Michigan
    • April 22, 1980
    ... ... GEORGIA PACIFIC COMPANY, INC., Defendant ... No. K 77-539 ... United" States District Court, W. D. Michigan, S. D ... April 22, 1980. 488 F. Supp. 468        \xC2" ... ...

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