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With possible exception of searches conducted at an international border, the Fourth Amendment’s protections are probably nowhere else weaker than under warrantless, suspicion-less, stops of seagoing vessels.

Recently, the Supreme Court considered the validity of the incredibly broad search authority conferred upon customs authorities by 19 U.S.C. § 1581(a) which provides, in part:

“Any officer of the customs may at any time go on board of any vessel…at any place in the United States or within the customs waters…and examine, inspect, and search the vessel… and every part thereof…” 19 U.S.C. § 1581(a).

In U.S. v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983), a majority of the Supreme Court upheld a Customs Agent’s “suspicionless” boarding of a sailboat in a channel leading to open sea for the purpose of examining the vessel’s documentation pursuant to 19 U.S.C. 1581(a). The Court held that while such boarding was no less “random” than highway stops condemned in earlier cases, e.g. United States v. Brignoni- Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607; Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660, such was, nonetheless, “reasonable” under the Fourth Amendment in light of the First Congress’ clearly expressed understanding that such stops are valid [the First Congress having promulgated both 19 U.S.C. 1581(a)’s predecessor or “lineal ancestor” and the Fourth Amendment] the water borne setting that precludes the use of fixed checkpoints or roadblocks, the complexity of the system of registering seagoing vessels as compared to the motor vehicle registration system, the strength of the government’s interest in assuring compliance with the registration requirements, and the limited nature of the intrusion. Villamante-Marquez, 462 U.S. at 584.

“It seems clear that if the customs officer in this case had stopped an automobile on a public highway near the border, rather than a vessel in a ship channel, the stop would have run afoul of the Fourth Amendment because of the absence of articulable suspicion… But under the overreaching principle of ‘reasonableness’ …we think that the important factual differences between vessels located in waters offering ready access to the open sea and automobiles on principal thoroughfares in the border area are sufficient to require a different result here.”  Villamonte-Marquez, 462 U.S. at 588.

Although the language of 19 U.S.C. § 1581(a) would seem to authorize a thorough search, the Court in Villamonte-Marquez stressed the limited nature of the intrusion in the case before it [“the type of intrusion made in this case while not minimal, is limited.”]. The officers there were in the process of checking the boat’s paperwork when they detected the odor of marijuana, thus giving them probable cause. The Court’s emphasis on the intrusion’s limited nature at least suggests that at some point an intrusion, while apparently authorized by 19

U.S.C. § 1581(a), might be so intrusive as to be unreasonable under the Fourth Amendment.

Relying on U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572, the Court held that:

“Even the courts have recognized what has been obvious from time immemorial to seafarers: that ships are not the same as houses      In Ross, 102 S.Ct. at 2162, the Court noted that historically warrantless searches of vessels   as opposed to fixed premises such as a home or other building -had been considered reasonable by Congress. ‘[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship (or) motorboat    where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality of jurisdiction in which ‘the warrant must be sought’. The bottom line is, that those who go down to the sea in ships have ‘a lesser expectation of privacy (in their ships) than in their homes, obviating the usual Fourth Amendment requirements of a warrant.’”  U.S. v. Burke, 540 F. Supp. 1282, 1286 (D.P.R. 1982).


 In U.S. v. Cilley, 785 F.2d 651 (9th Cir. 1985), the court held that the Coast Guard’s high seas boarding of American vessel for multiple purposes of detecting drug smuggling, and document and safety check promotes sufficient government interests to outweigh intrusion. The Villamonte-Marquez balancing test extends beyond domestic waters.

See also U.S. v. Luis-Gonzalez, 719 F.2d 1539 (11th Cir. 1983) [the statute empowers Coast Guard to stop and board American vessels on high seas even in complete absence of suspicion of criminal activity]; U.S. v. Bent, 707 F.2d 1190 (11th Cir. 1983), cert. denied, 104 S.Ct. 2174 (1984) [the Coast Guard, by statute, may stop U.S. vessel in international waters for safety and inspection absent suspicion].


 See U.S. v. Reeh, 780 F.2d 1541 (11th Cir. 1986) [the Coast Guard search of foreign vessel held reasonable under totality of circumstances]; U.S. v. Alfonso, 759 F.2d 728 (9th Cir. 1978) [reasonable suspicion that contraband was aboard Colombian ship sufficiently supported search of private living quarters aboard ship during valid extended border search]; U.S. v. Gonzalez, 776 F.2d 931 (11th Cir. 1985) [U.S. may obtain foreign nation’s consent informally at time of the offense in order to extend “customs waters” to specific boats].


 Applying the Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), “reasonable expectation of privacy” rationale some courts have looked to the specialized nature and purpose of different vehicles and vessels in determining whether they fall within the Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925), “automobile exception” to the Fourth Amendment’s warrant requirement. See U.S. v. Cadena, 588 F.2d 100, 101 (5th Cir. 1979) [just as a “ship is a sailor’s home”, the court recognized the “ever increasing number of vacation vehicles and mobile homes …designed to be used as residences”].

“[J]ust as there are similarities in the mobility of automobiles and vessels, there are differences in their uses. Save for the ever increasing number of vacation vehicles, and mobile homes, motor vehicles are not designed to be used as residences. The ship is the sailor’s home. There is hardly the expectation of privacy even in the curtained limousine or the stereo equipped van that every mariner or yachtsman expects aboard his vessel.”  U.S. v. Cadena, 588 F.2d at 101.

In California v. Carney, 471 U.S. 386 (1985), the majority refused to distinguish motor homes from ordinary automobiles simply because the former are capable of functioning as dwellings. For Fourth Amendment purposes, motor homes are automobiles unless “situated in a way or place that objectively indicates that it is being used as a residence.” Courts have looked to the “use” to which the “mobile home” is put in deciding whether same should fit within the automobile exception to the warrant requirement. U.S. v. Holland, 740 F.2d 878, 880 (11th Cir. 1984) [In rejecting defendant’s argument that his motor home deserves the same privacy expectation as at home, the Court noted that the motor home was being used at the time for transportation].

“The use of the vehicle, not its shape, should control the standard that applies.” U.S. v. Holland, 740 F.2d at 880.

Courts have also looked to the purpose to which particular areas of the vehicle or vessel are put.

U.S. v. Whitmire, 595 F.2d 1303 (5th Cir. 1979); U.S. v. Williams, 589 F.2d 210, 214 (5th Cir. 1979).

“Relatively high levels of privacy must be accorded …a houseboat …or to the crews living quarters …at sea …whereas it is difficult to see that a crew member might legitimately claim privacy on the open deck of a fishing shack or in the hold of a cargo vessel available for hire A harder case to assess, reserved for another day, is the enclosed area of a yacht or large sailboat which might be in use as a living area during an extended cruise or might also serve as a mere cargo container for an illicit drug run.” U.S. v. Whitmire, 595 F.2d at 1312.

The courts have also acknowledged that passenger cabins on a cruise ship are more like an individual’s home than an automobile finding that “[j]ust as individuals seek privacy in hotel rooms or another’s home to sleep, cruise ship passengers seek out privacy in their sleeping cabins and expect that they will not be opened or intruded upon without consent.” U.S. v. Whitted, 541 F.3d 480 (3rd Cir. 2008).


 In U.S. v. Amuny, 767 F.2d 1113 (5th Cir. 1985), the Fifth Circuit distinguished an airplane from an automobile:

“Although an automobile and an airplane are similar in that they both are mobile, they share few other attributes with respect to the relative privacy interests the owners of each possesses… Although an airplane, like a car, technically travels in the public space, the public space in which each vehicle travels is quite different. A car is driven upon frequently traveled highways and roads where passengers in adjacent cars may have a view of the interior of the car. A plane, by contrast, is flown in relatively sparsely traveled air space where other airplanes do not have a view of the interior of the vehicle.” U.S. v. Amuny, 767 F.2d at 1128.

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