United States v. James R. Helms, Robert F. Ihle, Robert C. Mason

ERVIN, Circuit Judge,

dissenting:

The government proceeded below on the theory that the search was valid under 19 U.S.C. § 1581 (a). That provision gives customs officers broad powers to search vessels within the customs waters of the United *767 States. 1 Customs waters are those waters within 12 miles of the United States. 19 U.S.C. § 1401 (j). The search here, however, occurred within the inland waters. Nevertheless, the district court held that the vessel properly was stopped under the authority of section 1581(a).

The district court’s holding, affirmed by the majority, is in direct conflict with this court’s decision in Blair v. United States, 665 F.2d 500 (4th Cir.1981). In Blair , we held that the authority to search under section 1581(a) did not extend to searches within inland waters. For a customs search within inland waters to be constitutional, it must either be a border search or based upon reasonable suspicion of illegal activity. Id. at 505 . As indicated by the following colloquy between the district court and the Assistant United States Attorney, the district court did not have the benefit of our decision in Blair , which was decided after the trial:

THE COURT: I don’t see that the Fourth Circuit has passed expressly on this issue .... I don’t see ... any requirement that in order just to stop for an administrative search that you’ve got to have reasonable suspicion that it came across the border .... I may be wrong, but I’m just following the cases. Not to sustain the.boarding in this case, I’d have to chart waters that have never been charted before, because every time this issue had been raised that I can find, the authorities have held in the case that we’ve discussed that the customs people under 1581(a) as the Fifth Circuit says, they do not violate the Fourth Amendment when they stop any vessel of this type to seek its papers, its documentation ... [wjithout any reasonable suspicion. Mr. Dixon, can you tell me any reason they had reasonable suspicion to stop this boat?

MR. DIXON: Not specifically, Your Honor. They said they were just checking boats as they came in under 1581.

THE COURT: I agree. If you go up to the Fourth Circuit and I found because I don’t believe there was any reasonable suspicion the government doesn’t even contend that there was any reasonable suspicion, so you’ve got a clear cut issue if you want it.... They stopped it under the authority of 1581(a) which I think they had authority to do.

On appeal, the government attempts to save its case by arguing that the stop was a valid border search. Because the record is barren of any “articulable facts tending to show that the vessel [had] recently crossed an international border,” United States v. Laughman, 618 F.2d 1067 , 1072 n. 2 (4th Cir.1980), I cannot agree with the majority’s holding that the search was a valid border search.

Customs officials may conduct routine warrantless border searches at international borders or their “functional equivalent” regardless of whether there exists probable cause to believe an illegal activity is occurring. Alm eida-Sanchez v. United States, 413 U.S. 266, 272 , 93 S.Ct. 2535, 2539 , 37 L.Ed.2d 596 (1972). There cannot be a border search, however, “without some degree of probability that the vessel had crossed a border; i.e., the officials must possess some articulable facts tending to show that the vessel has recently crossed an international border.” Laughman, 618 F.2d at 1072 n. 2.

The relevant international border is the three-mile limit, a border line in the ocean that is three miles from shore. “Territorial waters” are those parts of the ocean extending from the shore line to the three-mile limit. Waterways located inside the shore line are “inland waters.”

The majority cites two facts that supposedly show a sufficient probability that the *768 vessel crossed the three-mile limit: (1) the vessel first was observed some three to five miles away from the officers proceeding inland from the direction of the ocean; and (2) the customs officers thought the vessel had sailed from Wilmington, North Carolina, which would have required it to have “been coming in from outside 2 through territorial waters of the United States, if not even further out.” (emphasis added). Those two facts tend to show only that the vessel had sailed in territorial waters, and not beyond the three-mile limit.

Although the vessel was three to five miles away when first sighted, the vessel was at that time within Five Fathom Creek, i.e. inland waters, some five miles inside the three-mile limit. That a vessel in inland waters happens to be sailing further inward away from the ocean may indicate that it recently had been in the territorial waters part of the ocean, but is not very probative that the vessel recently had crossed the three-mile limit.

Furthermore, the testimony that a vessel coming from Wilmington could not have come through the inland waterways and must have been “coming ... through territorial waters” likewise is not probative of a border crossing. It certainly is possible to sail through territorial waters without crossing the three-mile limit. Customs Officer Bell admitted as much when he stated the vessel came through territorial waters, “if not even further out.” The majority unjustifiably equates “coming ... through territorial waters” with “cross [the three-mile limit] into ‘territorial waters.’ ” At 765.

Since the government did not proceed below on the theory that this was a border search, the district court did not make any specific findings in that respect. Nevertheless, the district court’s statement that “there is no evidence that [the vessel] even went outside the three-mile limit” is, based on my reading of the record, an accurate summation of the evidence. Therefore, I must respectfully dissent.

. 19 U.S.C. § 1581 (a) provides, in pertinent 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 the manifest and other documents and papers and 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.

. In his testimony before the district court, Customs Officer Bell repeatedly used the term “outside.” When asked to define the term, he stated that it meant “ocean” and indicated that it included the territorial waters as well as those waters further out; that is, “outside” means outside the shore line and not necessarily outside the three-mile limit.