Opposition — Stanley v. United States

No. 77-1126

Iu the Supreme Coot of the United States

OCTOBER TERM, 1977

FRANK D. STANLEY and THE O/S NATIONAL,

PETITIONERS

Uv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

SIDNEY M. GLAZER,

CHRISTIAN F. VISSERS,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

Opinions below _______. 1

Jurisdiction salad 1

REPLIES ESP ae ES Sey od 2

pe a eA eR ee 2

A ee ee 7

RE Ae A LL NI 17

CITATIONS

Cases:

Almeida-Sanchez v. United States, 412

i ee = 10

California Bankers Association v. Schultz,

416 US. 21 12

Carroll v. United States, 267 U.S. 132 __ 9

Chambers v. Maroney, 399 U.S. 42 9

Cook v. United States, 288 U.S. 102 ___. 12

Cunard Steamship Co., Ltd. v. Mellon, 262

U.S. 100 _ a st 10

Maul v. United States, 274 U.S. 501 ___. 12

People v. Esposito, 37 N.Y. 2d 156, 371

N.Y.S. 2d 681, 332 N.E. 2d 863 _.____. 13

Samora v. United States, 406 F.2d 1095. 11, 12

The Atlantic, 68 F.2d 8 15

United States v. Brignoni-Ponce, 422 U.S.

a ; 9

United States v. ‘Christian, 505 F.2d 94. 12

United States v. Glaziou, 402 F.2d 8 cer-

tiorari denied, 393 U.S. 1121 10-11

United States v. Gonzalez-Rodriquez, 513

3 en Bee. FREA ER S 11

II

Cases—Continued

United States v. Hill, 430 U.S. 129 __.

United States v. Ingham, 502 F.2d 1287,

certiorari denied, 421 U.S. 911 _....

United States v. Marti, 321 F. Supp. 59_.

United States v. Nunes, 511 F.2d 871...

United States v. 1,572 Cases of Assorted

Liquors, 4 F. Supp. 1017 _.

United States v. Ramsey, 431 U.S. 606...

United States v. Solmes, 527 F.2d 1370_..

United States v. Tilton, 534 F.2d 1363__.

United States v. Williams, 544 F.2d 807.

United States v. Winter, 509 F.2d 975__.

Umited States v. Wischerth, 68 F.2d 161.

Constitution, treaty, statutes and regulation:

United States Constitution, Fourth

I assis sinecttticitcncchomntnigetaiaiaaantned

Convention on the High Seas [1962],

Art. 5, 18 U.S.T. 2312, 2315 _...._.__..

Act of August 4, 1790, 1 Stat. 145 et seq.:

Section 31, 1 Stat. 164

Section G6, 1 Stat. 176 — $_$___.

Act of August 4, 1790, Section 48, 1 Stat.

DN a at eT Nee Cade =

A coer Ne Re PN ay ETS AEM 2 aR

Act of July 31, 1789, 1 Stat. 29 et seq.:

Section 24, 1 Stat. 43

eG eee

Tariff Act of 1922 (Act of September 21,

1922, Section 581, 42 Stat. 979

Bee III ccsscesctutperensteboianianthdiedakemaltceieaiia

EE TI Accsntencsinceitsbldconinspasnalnnelbaniiiland

Ill

Constitution, treaty, statutes

and regulation—Continued Page

a OR 10

a a cseusisnicenesaniiie 10

I ae 14

LE ARE ae oe 14

I i 14, 15, 16

icici entnciarieiimaantinn 14

Ue eee... aatstdaiinaeaaniis 10

& fe | ) | ee 2

Be WI iti recicitttricecrsenciiniass aes 2

ee I NN occ eitccteeeeinceecntercene 2

Ee 2

SE ee 11

I hl tata 2

| | EC eee 2

ee 2

8 A eee 14

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1126

FRANK D. STANLEY and THE O/S NATIONAL,

PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The memorandum opinion of the court of appeals

(Pet. App. A) is not reported. The prior opinion of

the court of appeals in this case (Pet. App. B) is re-

ported at 545 F.2d 661.

JURISDICTION

The judgment of the court of appeals was entered

on November 15, 1977. A timely petition for re-

(1)

2

hearing was denied on January 11, 1978. The peti-

tion for a writ of certiorari was filed on February 10,

1978. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether, in the circumstances of this case, customs

agents and a Coast Guard official properly boarded

a vessel in customs waters and searched its cargo

hold.

STATEMENT

In a four-count indictment returned in the United

States District Court for the Northern District of

California, petitioner Stanley was charged with im-

porting and possessing with the intent to distribute

approximately 10,600 pounds of marijuana and con-

spiring to commit those offenses, in violation of 21

U.S.C. 952(a), 841(a)(1), 963, and 846. A com-

plaint seeking forfeiture and condemnation of the

O/S NATIONAL was filed pursuant to 21 U.S.C. 881

(a)(4) and 49 U.S.C. 782, alleging that the vessel

had been unlawfully used for the transportation of

the marijuana.

After a pretrial hearing, the district court granted

petitioner’s motion to suppress the marijuana and

other evidence that had been seized in a warrantless

search of the O/S NATIONAL and entered a judgment

of non-forfeiture of the vessel. On the government’s

appeal, the court of appeals reversed and remanded

the case for trial (Pet. App. B).

On remand, petitioner Stanley waived a jury trial

and was convicted as charged. He was sentenced to

concurrent terms of four years’ imprisonment and

three years’ special parole.’ The district court entered

a judgment of forfeiture against the vessel. The

court of appeals affirmed in a brief memorandum

decision relying on its earlier opinion (Pet. App. A).

The evidence showed that early on the morning of

February 6, 1976, Sonoma County Deputy Sheriff

Herman Carr was summoned to the dock area of the

Harbor Fish Company in Bodega, California, where

he came upon an immobilized two-ton rental truck

(H. 44-45). The driver of the truck, co-defendant

Martin Estes, informed Officer Carr that he was

awaiting the arrival of a vessel that was to drop off

some fishing gear for subsequent delivery to another

coastal town (H. 46). The pier manager, who was

also present, reported that tire tracks and broken pier

planking indicated that the truck had previously

backed up to the waterside loading area. Upon being

asked, Estes denied that he had backed the truck

down the pier to the water’s edge (H. 46-47). When

Estes left the area to find a jack with which to free

the vehicle, Officer Carr noticed marijuana debris

1Mario Gonzales-Garcia and Alan Henry Culbert, alias

Martin Estes, were also indicted. The former is a fugitive and

the latter was charged in a superseding indictment with im-

portation, conspiracy to import, and conspiracy to distribute

marijuana. He was convicted and sentenced to five years’

imprisonment, five years’ special parole, and a $45,000 fine.

2 “H.” refers to the transcript of the hearing on petitioner

Stanley’s motion to suppress.

4

near the end of the truck, inside it, and on the pier’s

loading zone by the water (H. 48-49). From that

evidence, and in light of the size of the truck and the

fact that it had broken through the pier, Officer Carr

concluded that a substantial quantity of marijuana

had been unloaded from the truck (H. 50).*

When Officer Carr inquired of local fishermen

whether they were aware of any boats not berthed

at Bodega Bay or unusual vessels that had departed

from the harbor early that morning, he was told that

only three boats were known to have left the bay, but

that all were familiar vessels with well-known oper-

ators (H. 51). A fisherman who lived in a camper

near the entrance to the Harbor Fish Company pier

related that he had been awakened at about 5:30 a.m.

by noise outside his camper and that he saw a rental

truck backed onto the pier, a second truck of approxi-

mately the same size backed up to the front of the

first vehicle, and three or four men milling around

the trucks. Hearing what he thought to be the sound

of crab pots being loaded onto a truck, the fisherman

asked the men what they were doing. In response,

two of the men fled toward a nearby highway. The

fisherman subsequently telephoned the pier manager

to report the incident (H. 51-52).

Another local fisherman and a second deputy sher-

iff who assisted Officer Carr in his investigation com-

municated by radio with various boats in the area

’ Petitioner stipulated to the officer’s ability to recognize

marijuana, its residue and seeds (H. 49-50).

5

to determine whether any unusual vessels had been

seen in the harbor that morning. Two replies to the

inquiry were received. The GOLDEN CHALICE, a fre-

quent visitor to the area, reported that the only non-

local boat it had encountered was the O/S NATIONAL,

an old halibut schooner rigged for albacore and tuna

fishing, which ‘had sailed out of Bodega Bay early

that morning and had then turned northward (H. 52-

53, 57, 79-84). A second boat reported that the Na-

TIONAL had been anchored off-shore the previous day

for no apparent reason, equipped with gear that indi-

cated the vessel had heen fishing in Mexican or

Southern California waters (H. 56). Officer Carr

then asked local Fish and Game Department officials

about seasonal fishing conditions in the area. They

confirmed that there was no albacore or tuna fishing

in Northern California waters at that time of year

(H. 55).

From his investigation, Officer Carr determined

that only four boats had left the harbor that morn-

ing: the NATIONAL; the GOLDEN CHALICE, which had

responded to the radio inquiry and had been seen in

the harbor that morning; and two local vessels, one

a drag boat and the other a party boat, both of which

frequently left the harbor early in the morning (H.

77-79). Recalling that he had not seen the NATIONAL

during his routine check of the harbor area at about

midnight the previous evening, Officer Carr reasoned

that the NATIONAL must have come into the harbor

after that time, even though all service facilities for

fuel and supplies had already been shut down and

6

the seas were calm (H. 56-57). From all this infor-

mation, Officer Carr concluded that the NATIONAL

had been involved in the marijuana transfer. He

telephoned the Coast Guard to request that the vessel

be apprehended (H. 84).

A Coast Guard cutter was dispatched to intercept

the vessel (H. 89). The cutter first spotted the Na-

TIONAL at about 2:00 p.m., approximately seven miles

from shore (H. 90, 92). As the cutter approached,

the NATIONAL appeared to alter its course toward

the open sea (H. 90, 95). The cutter changed its

course accordingly and eventually pulled alongside.

Coast Guard officers on board the cutter noticed that

the NATIONAL did not appear to have been recently

engaged in fishing, as its rigging and equipment were

in a state of disarray and disuse (H. 119-120, 125-

126) and certain gear was missing (H. 126). In

addition, although the vessel was basically outfitted

for tuna and albacore, some of its rigging was of the

type associated with salmon fishing (H. 120-123, 138-

141).

Two customs agents and a Coast Guard representa-

tive boarded the NATIONAL (H. 92, 109). One of the

customs agents identified himself and began to search

the boat. He opened the cargo hatch in the boat’s

fantail where he saw what appeared to be several

bales of marijuana. Petitioner Stanley and his crew-

man were then arrested and the vessel seized (H. 109-

112, 131-132).

7

ARGUMENT

1. Petitioners argue (Pet. 6-9) that the search of

the NATIONAL by customs agents and Coast Guard

officers violated the Fourth Amendment. We submit

that the search was legal, whether viewed as a prob-

able cause search or as a border search.

a. Although two members of the court of appeals

ruled otherwise, we believe that the search in this

case was supported by probable cause. Officer Carr,

an experienced law enforcement officer responding to

reports of suspicious waterfront activity, came upon

an immobilized rental truck that obviously had been

hauling a heavy cargo when it backed onto a dockside

loading area. He discovered marijuana residue in

significant quantities on and within the truck and at

the waterside loading zone. Rejecting an unconvinc-

ing denial by the vehicle’s driver, Carr reasonably

surmised that a land-sea transfer of a large quantity

of marijuana had recently taken place. His suspi-

cions were reinforced by a local fisherman’s report

of early morning truck movement and noise in the

pier area and the subsequent flight of two individuals

involved in the activity when they were confronted

by the fisherman.

Carr’s investigation provided him with sufficient

information to determine that it was the O/S Na-

TIONAL that probably had been involved in the trans-

portation of the marijuana. Only two non-local boats

were known to have left the harbor area that morn-

ing. One, the GOLDEN CHALICE, responded to a radio

8

inquiry and had been docked in the bay the previous

evening. The other, the O/S NATIONAL, had been

anchored offshore the previous day without apparent

reason. The NATIONAL was rigged for fish not then

in season in Northern California waters; it had

entered the harbor sometime after midnight, when

services were unavailable and when there was

no bad weatner from which to seek shelter; and it

departed in the early morning hours shortly before

a local resident was awakened by noise in the pier

area. As the marijuana cargo was no longer in the

rental truck, Carr reasonably concluded that it had

probably been transferred to the NATIONAL and that

the NATIONAL was carrying the contraband to an-

other port.

Further indications of criminal involvement came

to light as the Coast Guard cutter approached the

NATIONAL. The NATIONAL altered its course toward

the open sea when the cutter came within sighting

range, possibly as an evasive action. Moreover, its

rigging was in disarray and had apparently not been

recently used, while certain equipment normally dis-

played by a fishing vessel was not visible. It was

thus evident that although outfitted as a fishing boat,

the NATIONAL had not been used for fishing for some

time, and it was not at sea for the purpose of fishing

on that day.

Taken together, these facts were sufficient to estab-

lish probable cause to search the NATIONAL, as Judge

Kilkenny concluded below (Pet. App. lla). Since

motorized marine vessels are, if anything, even more

<—

mobile and elusive than automobiles, there is no ques-

tion that if there was probable cause for the search by

customs and Coast Guard personnel, the search was

legal. Carroll v. United States, 267 U.S. 132, 152;

Chambers v. Maroney, 399 U.S. 42, 52.

b. Even if the facts known to the officers at the

time of the search did not constitute probable cause

but only provided a strong basis for suspicion, the

cargo search in customs waters can be sustained as

a valid border search. When an individual crosses

an international border, he can be searched even in

the absence of probable cause, particularly in a case

such as this one, where the officers conducting the

search are “aware of specific articulable facts, to-

gether with rational inferences from those facts, that

reasonably warrant suspicion that contraband is be-

ing carried across the border.” See United States v.

Brignoni-Ponce, 422 U.S. 873, 884; cf. United States

v. Ramsey, 431 U.S. 606, 616.

At the time of the search, the NATIONAL was out-

side the three-mile territorial limit, and thus outside

this country’s international maritime border,* but it

‘There is no support for petitioners’ suggestion (Pet. 16-

17) that the three-mile limit is not the established border for

purposes of a customs search at sea. The three-mile terri-

torial limit was established by international custom at the time

of this country’s independence. That custom provides that

the coastal nation possesses plenary jurisdiction within its

waters three miles from shore all along its coastline. As this

Court has observed, the territory subject to the jurisdiction

of the United States includes “the land areas under its dom-

inion and control, the ports, harbors, bays and other enclosed

10

was still inside the twelve-mile limit of the customs

waters,’ within which customs searches are permitted.

19 U.S.C. 1581(a). As the court of appeals noted

(Pet. App. 8a n. 6), there is no doubt that the border

was crossed, for the NATIONAL was seen leaving

Bodega Bay in the morning and was sighted later

some nine miles off the coast. Although the search

of the vessel was not undertaken precisely at the

point it crossed the invisible three-mile line, the court

of appeals correctly observed (Pet. App. lla) that

the customs waters between the three-mile limit and

the twelve-mile limit constitute the functional equiva-

lent of the border for the purpose of conducting

border searches of vessels, at least where it is reason-

ably certain that the territorial border has been

crossed. Almeida-Sanchez v. United States, 413 U.S.

266, 273; United States v. Tilton, 534 F.2d 1363,

1366 (C.A. 9); United States v. Ingham, 502 F.2d

1287, 1290 (C.A. 5), certiorari denied, 421 U.S. 911;

United States v. Glaziou, 402 F.2d 8, 12 (C.A. 2).

arms of the sea along its coast, and a marginal belt of the

sea extending from a coast line outwards a marine league, or

three miles.” Cunard Steamship Co., Ltd. v. Mellon, 262 U.S.

100, 122.

5’ Customs waters are defined in 19 U.S.C. 1401(j) as wa-

ters within four leagues (12 nautical miles) of the United

States coast. 14 U.S.C. 143, 19 U.S.C. 1401(i) and 1709(b)

provide that Coast Guard commissioned officers, warrant of-

ficers, and petty officers are deemed to be officers of the cus-

toms.

11

certiorari denied, 393 U.S. 1121; United States v.

Hill, 480 F.2d 129, 181 (C.A. 5).°

While the border search exception has traditionally

been applied to searches conducted upon entry into

this country, rather than upon departure, there is no

reason to devise different rules to govern exit border

searches. The governmental interest in preventing

illicit international drug trafficking and other forms

of smuggling is not restricted to controlling incoming

contraband. Indeed, the Controlled Substances Act

criminalizes exportation as well as importation of

illegal drugs. 21 U.S.C. 953. While illicit drug traf-

ficking may more commonly involve importation into

rather than exportation from the United States, the

opposite is true with respect to other commonly

smuggled goods, such as firearms. See United States

v. Gonzalez-Rodriguez, 513 F.2d 928 (C.A. 9); Sa-

mora v. United States, 406 F.2d 1095 (C.A. 5). More-

over, the cooperation of foreign nations in controlling

the traffic in illicit drugs is dependent in part on this

country’s efforts to control the export of drugs and

other contraband.’

* The obvious impossibility of funneling marine traffic into

fixed checkpoints accounts for the judicial deference accorded

border searches at sea. The courts have recognized the dif-

ference between administering borders through which land-

locked vehicles pass and those crossed by international ship-

ping. See, e.g., United States v. Ingham, supra, 502 F.2d at

1290.

* The United States has a duty under international law to

establish such an inspection scheme, since it is required to

“effectively exercise its jurisdiction and control in adminis-

12

In discussing the border search exception, neither

this Court nor any court of appeals has distinguished

between incoming and outgoing border traffic. See

California Bankers Association v. Schultz, 416 U.S.

21, 63 (“[T]hose entering and leaving the country

may be examined as to their belongings and effects,

all without violating the Fourth Amendment’) ; Maul

v. United States, 274 U.S. 501 (upholding Coast

Guard authority to seize a vessel heading away from

the United States more than 12 miles from the

coast) ; Cook v. United States, 288 U.S. 102 (approv-

ing the seizure of an outward-bound boat 1114 miles

from shore); United States v. Christian, 505 F.2d

94 (C.A. 5) (interception of vessel heading away

from United States upheld after vessel had previ-

ously entered territorial waters by crossing the three-

mile limit); Samora v. United States, supra, 406

F.2d at 1098 (border search of exiting vehicle up-

held).

Nor is there any sound basis for suggesting that

an individual’s expectation of privacy is greater at

departure than at entry. As the court of appeals

observed (Pet. App. 10a), it is broadly recognized

that a border crossing entails a situation in which

the state has particularly important interests that

can be protected only by permitting reasonable

trative, technical and social matters over ships flying its flag.”

Art. 5, Convention on the High Seas, [1962] 13 U.S.T. 2312,

2315. To ensure reciprocal non-interference with American

vessels by foreign states it is necessary to exercise control

over them.

18

searches of those seeking to cross, whether they are

entering or exiting the country.‘

In any event, the border search in this case was

not a true “exit” searcli, since at the time it was

apprehended, the NATIONAL was apparently not in-

tending to leave customs waters for any substantial

period of time but, as petitioners acknowledge, was

intending to re-enter American territorial waters

farther up the coast. Because of the virtual impossi-

bility of intercepting and searching the vessel at the

moment it re-entered territorial waters on its way

into another port, the search in customs waters was

a legitimate search at a functional equivalent of the

border.®

8 Petitioners concede (Pet. 16) that there is no direct con-

flict among the courts of appeals on the question presented by

this case. The cases cited by petitioners as being inconsistent

with the result reached below are inapplicable here. The cases

of United States v. Nunes, 511 F.2d 871 (C.A. 1); United

States v. Marti, 321 F. Supp. 59 (E.D. N.Y.); and People v.

Esposito, 37 N.Y. 2d 156, 371 N.Y.S. 2d 681, 332 N.E. 2d 863,

were not decided on constitutional grounds, but instead in-

volved the construction of statutes not at issue in this case.

In United States v. Williams, 544 F.2d 807 (C.A. 5), also re-

lied upon by petitioners, the court held that the search of a

moored houseboat could not be upheld as a customs search be-

cause there was no showing that the houseboat had ever pass-

ed into international waters or that it was even capable of

venturing that far from shore. 544 F.2d at 811.

® Petitioners suggest that there is no justification for con-

ducting “border searches” of coastwise traffic that leaves and

returns to territorial waters without visiting a foreign port.

Beyond the difficulty of determining when a vessel is return-

ing from a foreign port and when it is returning from another

14

2. Petitioners alternatively invite the Court to

construe the customs search statute, 19 U.S.C. 1581

(a), to exempt fishing boats from the statute’s cover-

age. There is no authority, either in the language

of the statute or the policies underlying it, for adopt-

ing any such limiting construction. The statute au-

thorizes customs officers to search “any vessel” in

customs waters. Moreover, 19 U.S.C. 1441, which

lists various types of vessels that are exempt from

customs clearing requirements, does not in terms ex-

empt any of the listed vessels from the provisions of

Section 1581(a).” Yet even if petitioners are correct

that Section 1441 implicitly limits the scope of Sec-

tion 1581(a), Section 1441 does not list fishing ves-

sels as among those exempt from entry and clearing

customs. Indeed, the courts have long recognized both

fishing boats and pleasure craft as among those capa-

ble of hauling contraband or cargo subject to duties

and thus clearly within the reach of Section 1581 or

its statutory predecessors.” See, e.g., United States

American port, this analysis ignores the common smuggling

practice of stationing a mother ship—or, a “hovering vessel”

—beyond the twelve-mile limit and shuttling a second boat

back and forth from that vessel. See 19 U.S.C. 1581(g).

10 The regulations of the Customs Service implementing the

statutory authority to board, search, and seize do not con-

template any exceptions for certain types of vessels. 19 C.F.R.

162.

11 Petitioners’ contention that fishing vessels should be

deemed exempt from the application of Section 1581(a) pro-

vides them no comfort in this case for yet another reason: as

the Coast Guard and customs agents could tell when they

15

v. Tilton, supra; United States v. Solmes, 527 F.2d

1370 (C.A. 9); The Atlantic, 68 F.2d 8 (C.A. 2);

United States v. Wischerth, 68 F.2d 161 (C.A. 2);

United States v. Winter, 509 F.2d 975 (C.A. 5);

United States v. 1,572 Cases of Assorted Liquors, 4

F. Supp. 1017 (E.D. N.Y.).

The legislative history of Section 1581(a) does not

support petitioners’ suggestion that the statute was

intended to have a very narrow scope. The authority

to enforce maritime and customs laws by boarding

vessels, accounting for all cargo, and insuring that

proper duties were paid was established by the First

Congress. Act of July 31, 1789, Section 24, 1 Stat.

43. Early customs statutes limited the boarding and

search authority to vessels “bound to the United

States” and apprehended within the twelve-mile limit.

Act of August 4, 1790, Sections 31, 64, 1 Stat. 164,

175. Those statutes also incorporated a requirement

that any intrusion be predicated upon a reasonable

suspicion that customs or other laws of the United

States have been breached. Act of July 31, 1789,

Sections 24, 36, 1 Stat. 48, 47; Act of August 4,

1790, Section 48, 1 Stat. 170. In 1866, Congress

altered this scheme to permit boarding and searching

of vessels without knowledge or suspicion of a viola-

approached the NATIONAL, the NATIONAL was not being used

at that time for fishing. Even if fishing boats are exempt from

Section 1581(a), certainly vessels that are merely outfitted,

in some respects, as fishing boats, cannot enjoy that exemp-

tion if they are plainly not being used for fishing at the time.

16

tion of federal law. Act of July 18, 1866, Section 2,

14 Stat. 178. At the same time, Congress omitted

the requirement that the vessels be “bound to the

United States.” This broader provision was main-

tained in the Tariff Act of 1922 (Act of September

21, 1922, Section 581, 42 Stat. 979), from which the

present wording of Section 1581(a) was taken.”

In sum, both the constitutional and statutory au-

thority for governmental action of the kind taken

against the O/S NATIONAL is founded upon practical

and historical considerations reflecting the difficulties

in controlling maritime smuggling. Consistent with

the universal understanding that customs laws may

be enforced at or near international boundaries, the

application of Coast Guard and customs officials’ stat-

utory responsibilities in the instant case was correctly

held compatible with the Fourth Amendment.

12 Even if Section 1581(a) did not provide the statutory

authority for the search in this case, the search was author-

ized by 14 U.S.C. 89(a), which provides the Coast Guard with

the authority to conduct searches upon the high seas or in ter-

ritorial waters “for the prevention, detection, and suppression

of violations of laws of the United States.” We recognize, of

course, that neither statute can authorize searches that violate

the Constitution. Yet where the search is constitutionally

permissible, as in this case, either Act provides statutory

authority for the search.

17

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. MCCREE, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

SIDNEY M. GLAZER,

CHRISTIAN F. VISSERS,

Attorneys.

May 1978.

W 3G. &. covennment paintine orrice; 1978 264276 4