approving government inspection of fishing vessels for violations of the Marine Mammal Protection Act, but noting that the regulation does not authorize searches of the persons, personal effects, or living quarters of the Captains and their crews, and that such searches would have to be justified independently under the fourth amendment
How later courts described this case
- approving government inspection of fishing vessels for violations of the Marine Mammal Protection Act, but noting that the regulation does not authorize searches of the persons, personal effects, or living quarters of the Captains and their crews, and that such searches would have to be justified independently under the fourth amendment
- referring to a similar argument as a “novel constitutional proposition” and determining that “[t]he law is to the contrary”
Written by the judges who cited it.
The opinion
PREGERSON, Circuit Judge,
concurring:
I concur in the majority’s opinion but write separately to say that the observer program does not constitute a “search” within the meaning of the fourth amendment.
Fourth amendment protection operates when two conditions are met. First, a person must have exhibited an expectation of privacy in the place where the Government has allegedly intruded. Second, this expectation must be one that a free society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361 , 88 S.Ct. 507, 516-17 , 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).
The tuna boat captains have failed to meet either condition. They conduct fishing operations at sea on decks covered only by the sky and open to view by other crew members, nearby vessels, and overflying aircraft.
Moreover, our society is not prepared to recognize an expectation of privacy on open tuna boat decks, which are really no different from work areas in any industry the Government regulates to safeguard the public health and welfare. Federal inspectors, without impinging on any reasonable expectation of privacy, routinely monitor work areas in the coal mining, Donovan v. Dewey, 452 U.S. 594 , 101 S.Ct. 2534 , 69 L.Ed.2d 262 (1981) (Federal Mine Safety and Health Act of 1977), firearms, United States v. Biswell, 406 U.S. 311 , 92 S.Ct. 1593 , 32 L.Ed.2d 87 (1972) (Gun Control Act of 1968), and salmon fishing, United States v. Raub, 637 F.2d 1205 (9th Cir.1980) (Sockeye Salmon Fishing Act of 1947), industries, to name just a few.
In the final analysis, I think the question whether a governmental intrusion into a private area constitutes a reasonable search under the fourth amendment depends on the kind and degree of intrusion that a free society is willing to tolerate. United States v. Solis, 393 F.Supp. 325, 328 (C.D.Cal.1975) (Pregerson, J.), aff’d in relevant part, 536 F.2d 880 (9th Cir.1976). With few exceptions, our society does not tolerate warrant-less intrusions into private dwellings and offices. E.g., Camara v. Municipal Court, 387 U.S. 523, 528-29 , 87 S.Ct. 1727, 1730-31 , 18 L.Ed.2d 930 (1967). But the presence on open decks of government scientists monitoring commercial fishing operations to save the porpoise from extinction is the kind and degree of intrusion that our society should tolerate.