# Opposition — Stanley v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1978
- **Citation:** 436 U.S. 917

## Text

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
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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

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