Petition — Watson v. United States

82-555 TED

SEP 27 1962

ALEXANDER L. STEVAS.

IN THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1982

JACK OSBORN WATSON,

JEFFREY CRAIG EVENSON

and

DALE STANLEY BROWNING,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MICHAEL PANCER FRANK RAGEN

520 "E" St., Suite 1100 108 Ivy St.

San Diego, Ca. 92101 San Diego, Ca. 92101

(714) 236-1826 (714) 231-4330

Attorney for Petitioner WATSON Attorney for Petitioner EVENSON

GERSHON D. GREENBLATT

2404 Broadway

San Diego, Ca. 92101

(714) 233-8733

Attorney for Petitioner BROWNING

Dean-Standefer - (714) 734-0811

QUESTIONS PRESENTED

1. Did the nighttime stop and boarding of the peti-

tioner’s vessel on the high seas by the United States Coast

Guard, without any suspicion of non-compliance with docu-

ment and safety regulations or any founded suspicion that

criminal activity was afoot, violate the Fourth Amendment

protection against unreasonable searches and seizures?

2. What effect should the fact that the Coast Guard

used its document and safety inspection authority as a pre-

text or subterfuge to search for marijuana and other contra-

band have on the Fourth Amendment determination?

I oe elena den hae ani

Reasons Why The Writ Should Be Granted ......

A. The nighttime stop and boarding of the

GLOBE TROTTER, without any suspicion

of non-compliance with document and

safety regulations or any founded suspicion

that criminal activity was afoot, violated

the Fourth Amendment protection against

unreasonable searches and seizures ........

(1) The Coast Guard plan was arbitrary

OG I. co wcadecccccvicede

(2) Less intrusive alternatives ..........

(3) Intrusion on privacy interests versus

governmental interest in securing

compliance with document and safety

GD: cho. wk ndede Bb bwe's p odes’

B. The use by the Coast Guard of its document

and safety inspection authority as a pretext

to search for marijuana and other contraband

required a finding that the stop and boarding

of the GLOBE TROTTER was illegal ......

i a =

TABLE OF AUTHORITIES CITED

Cases Page

A tl v. United States, 362 U.S. 217, 80 S. Ct.

SE Xo sks nad atate cc’ Joe ccencs s 31

Almeida-Sanchez v. United States, 413 U.S. 266,

93 S. Ct. 2535 (1973) .......... 8, 19, 23, 24, 26

Amador-Gonzalez v. United States,

391 F.2d 308 (Sth Cir. 1968) ............ 33

Camara v. Municipal Court, 387 U.S. 528,

DE CPP EREED 1s cbaewedcescoteve’s 30, 31

Colonnade Catering Corp. v. United States,

397 U.S. 72, 90 S. Ct. 774 (1970) ........ 23

v. New Hampshire, 403 U.S. 443,

Se ee I IE dado wea edboensese 7,8

Delaware v. Prouse, 440 U.S. 648, 99 S. Ct.

PEE .acbe0cwtnéswieuer 8, 9, 10, 11, 12,

14, 15, 16, 20, 21, 26, 31, 33

Donovan v. Dewey, ..... U.S. ..... June 17, 1981). . 24

Gonzalez v. Oklahoma, 507 P.2d 1277 (1973).... 34

lowa v. Cooley, 229 N.W.2d 755 (1975) ........ 33

Klutz v. Beam, 374 F. Supp. 1129

+ RNS EES, SS 24, 25

Marshall v. Barlow's Inc., 436 U.S. 307,

96 S.Ct. 1816(1978) =... . eee 14, 15, 23

v. Tyler, 436 U.S. 499,

er ee Peer 29, 30

Morgan v. Town of Heidelberg, 150 So. 2d 512

SEE a a he's Bowed dco ba'h'6 doa 34

iv

TABLE OF AUTHORITIES CITED

Cases (cont'd) Page

Nebraska v. Holmberg, 231 N.W.2d 672 ........ 34

Palmore v. United States, 290 A.2d 573

Be geese get cate) KO A 33

People v. Harr, 235 N.E.2d | (Ill. 1968) ........ 34

People v. McPherson, 550 P.2d 311(1986) ...... 33

South Dakota v. Opperman, 428 U.S. 364,

96 S. Ct. 3092 (1976) .............0000: 34

State v. Gwinn, 301 A.2d 291 (Del. 1973) ...... 34

Taglavore v. United States, 291 F.2d 626 (1961) .. 32, 33

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868

SEE Se GhdS woah bs KO CODNNYS dove os 8, 10, 26

United States v. Biswell, 406 U.S. 311,

PEP DOEREEE Odes coneddecccecese 23

United States v. Brignoni-Ponce, 422 U.S. 873,

rey Ges ERED) Sith acoso ces 3, 10, 26

United States vy. Cadena, 558 F.2d 100

i Pn. 7 CiN sew eES bies o 000 0'> 6 . 22

United States y. Carri... .a-Gaxiola,

$23 F.2d/239 (9th Cir. 1975) ............ 33

United States v. Clark, 664 F.2d 1174

(11th Cir. 1981) (per curiam) ............ 19

United States y. Cupps, 503 F.2d 277

SE SOE bcd ae CRSee ERC hee CRU ee 33

United States v. Davis, 482 F.2d 983 (1973) .... 32

em,

TABLE OF AUTHORITIES CITED

Cases Page

United States v. Harper, 617 F.2d 35 (4th Cir.),

cert. denied, 449 U.S. 887,

EGE B. CR, PED CIFSR) csc wcccccccwccees 19

United States v. Hellman, 556 F.2d 442(1977) .. 34

United States v. Hilton, 619 F.2d 127

CEOS Cae, BIG i sic pec bwev seve eieuscoes 19, 21

United States v. Martinez-Fuerte, 428 U.S. 543,

96 S. Ct. 1374 (1976) 2.0... cece eee 8, 10, 26

United States v. Miller, 589 F.2d 1117

(Ist Cir. 1978), cert. denied, 440 U.S.

958, 99 S. Ct. 1499 (1979) ...... 6. cee ee 19

United States v. Odneal, 565 F.2d 598 (9th Cir.

1977), cert. denied, 435 U.S. 952,

SO S/CE TIGL CITE) oi. eis eesdc reece: 19

United States v. Ortiz, 422 U.S. 891,

95 S. Ct. 2581 (1975) ..........00005. 8, 10, 26

United States v. Piner, 608 F.2d 358

(9th Cir. 1979)... 00... 8,9, 11, 12, 13, 16, 34

United States v. Piner, 452 F. Supp. 1335

TS Re eee 18

United States ¥. Raub, 637 F.2d 1205

(9th Cir. 1980) ..... eee Dae + crs «Oe

United States ¥. Streifel, 665 F.24414(1981) .. 25,26

United States v. Warren, 578 F.2d 1058

(Sth Cir. 1978)(en banc) ..........-... 19

United States v. Williams, 617 F.2d 1063

(Sth Cir. 1980) (en banc) ............., 19

vi

TABLE OF AUTHORITIES CITED

United States Constitution Page

Fourth Amendment ..... i, 2, 4, 8, 9, 11, 12, 13, 19,

21, 24, 26, 27, 29, 33

Fourteenth Amendment ....... 6... 66660005 9

United States Code

site a a ee 2, 4, 5, 19, 25

nave otis od he bedeVeweseooscéos 3

DTD «Woops beecececpug dey oc s+. 2

DE TR OEED cccccccccceceds Me veto beoet 2

dalains dso i'W'bc oVabebbdo0eeeee 3

Si VLMn bwavecdadoddesepeteescéseces 3

DD che éecetseedeWasevedec<< 3

SS DEED | ocbe coded eed cncecsevcccs 17

Rules

Fed. R. Crim. P.

DD. “os coa6 00 ands ¢eceoee » ae ou 17

DPE dvcocwotsveccedbdcceoess 17

Text

Boston Globe, September 17, 1978 (Parade Mag.) . 28

Bel Sins Os See FS + Mine Biter

the Subcomm. on Coast Guard and Navigation

of the House Comm. on Merchant Marine and ©

Fisheries, 95th Cong., Ist Sess. 13(1975) .. ° 28

Harvard Law Review, Vol. 93, pp. 725, 741, 742

th Citi ae aah Gls bd dabGdes a0 00 < 22,23

vii

TABLE OF AUTHORITIES CITED

Text (cont'd)

U. S. Coast Guard, U. S. Dept. of T .

Boarding Manual, § IIJ-IV, at 3-4(1977) ....

21

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

JACK OSBORN WATSON,

JEFFREY CRAIG EVENSON

and

DALE STANLEY BROWNING,

Petitioners,

Vs.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

7*

This is a petition for JACK OSBORN WATSON, JEF-

FREY CRAIG EVENSON and DALE STANLEY BROWN-

ING for a Writ of Certiorari to review the Order made by the

United States Court of Appeals for the Ninth Circuit on June 2,

1982, reversing the decision of the District Court which had

The parties shown above are the only parties to this proceeding.

x

granted petitioners’ motion to suppress evidence The United

States Court of Appeals for the Ninth Circuit ruled that a Coast

Guard document and safety inspection of a 40-foot sailing

vessel on the high seas after dark pursuant to an administrative

plan, but without even a founded suspicion of non-compliance,

was reasonable and did not violate the Fourth Amendment. The

Court reached this decision even though the admitted purpose

of the “admunistrative plan” was to enable the Coast Guard to

board vessels and search for controlled substances. In other

words, the Court found that the stop and search of petitioner’s

vessel was reasonable under the Fourth Amendment despite

the concession by the Government that the strategy of the

Coast Guard was to use its broad authority to conduct docu-

ment and safety inspections under 14 U.S.C. § 89(a) as a subter-

fuge and pretext to conduct searches for contraband

To the petitioners’ knowledge, the Opinion in the United

States Court of Appeals for the Ninth Circuit, reversing the

District Court’s decision, has been officially reported but has

not as yet been published. (A copy of the Opinion is attached

hereto as Appendix “A”’.)

1. On December 17, 1981, the Federal Grand Jury for

the Southern District of California returned a Three-Count

indictment against petitioners. Count One charged a conspiracy

under Title 21, United States Code Sections 955(a) and 955(c),

to possess marijuana on the high seas with intent to distribute

ws

Count Two charged the substantive offense of possession

of marijuana on the high seas with intent to distribute, in —

violation of Title 21, United States Code Section 95 5(a).

Count Three charged a conspiracy under Title 21, United

States Code Sections 952, 960 and 963, to import marijuana.

2. On February 24, 1981, an evidentiary hearing on

the motions to suppress evidence filed by the petitioners was

held before the Honorable Leland C. Nielsen, United States

District Court Judge for the Southern District of California.

After the taking of limited testimony, Judge Nielsen granted

petitioners’ motions to suppress, concluding that a Customs’

safety search by the United States Coast Guard nearly a

thousand miles from United States waters could not be justi-

fied under Title 14, United States Code Section 8%a). On

March 16, 1981, the Government filed a Motion for Recon-

sideration of Order Suppressing Evidence. At a hearing held

on April 6, 1981, Judge Nielsen granted reconsideration, but

re-affirmed the previous Order granting the motions to suppress.

The Government thereafter filed a timely Notice of Appeal.

3. On June 2, 1982, the United States Court of Appeals

for the Ninth Circuit reversed the decision of the District Court.

Petitioners sought further review of the Panel’s Opinion from

the entire Court by filing a Petition for Rehearing En Banc,

but the suggestion for an en banc rehearing was rejected on

August 19, 1982.

4. The jurisdiction of this Court is invoked under

28 U.S.C. § 12541).

-~4—

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

Fourth Amendment to the United States Con-

stitution:

“The right of the people to be secure in their

persons, houses, papers and effects against

unreasonable searches and seizures, shall not be

violated, and no warrant shall issue but upon

probable cause supported by oath or affirmation

and particularly describing the place to be searched

and the persons or things to be seized.”

Title 14, U.S.C. § 8M%a):

“(a) The Coast Guard may make inquiries, examin-

ations, inspections, searches, seizures, and arrests

upon the high seas and waters over which the United

States has jurisdiction, for the prevention, detection

and suppression of violations of laws of the United

States. For such purposes, commissioned, warrant,

and petty officers may at any time go on board of

any vessels subject to the jurisdiction, or to the oper-

ation of any law, of the United States, address

inquiries to those on board, examine the ship's

documents and papers, and examine, inspect, and

search the vessel and use all necessary force to compel

compliance. When from such inquiry, examination,

inspection, or search it appears that a breach of the

laws of the United States rendering a person liable to

vite

arrest is being, or has been committed, by any

person, such person shall be arrested, or if

escaping to shore, shall be immediately pursued

and arrested on shore, or other lawful and appro-

priate action shall be taken; or, if it shall appear

that a breach of the laws of the United States has

been committed so as to render such vessel, or the

merchandise, or any part thereof, on boar‘ of, or

brought into the United States by, such vessel,

liable to a fine or penalty and if necessary to

secure such fine or penalty, such vessel or such

merchandise, or both, shall be seized.”

STATEMENT OF FACTS

On December 7, 1980, at approximately 3:30 p.m., a

helicopter attached to the United States Coast Guard Cutter

VENTUROUS, sighted the vessel] GLOBE TROTTER, a 40-

foot sail boat bearing California registration CF 1201 ET,

in international waters on the high seas proceeding in a west-

northwesterly direction, approximately 120 miles southwest

of the tip of Baja California, Mexico.' The sighting was

reported to Commander Richard B. Chapman, Commanding

Officer of the VENTUROUS, who ordered a course change

IThe VENTUROUS, with a Coast Guard helicopter and aviation

detachment on board, left Terminal Island, California, on November

28, 1980, for a two-week law enforcement patrol. The area of patrol

was approximately 100 miles west of the mouth of the gulf of Calif-

ornia via specified weigh points and return.

— =

to intercept the GLOBE TROTTER.*

The GLOBE TROTTER was sighted shortly after

6:00 p.m. Because it was dark, the VENTUROUS’ “stripe-

lights” were energized when it was 4,000 yards away, which

illuminated the vessel’s large orange stripes and Coast Guard

insignia on the hull. At 6:39 p.m., the VENTUROUS radioed

the GLOBE TROTTER, identified itself as the United States

Coast Guard, and ordered the GLOBE TROTTER to douse

sail, heave to, and stand by to receive a small boarding party.

The GLOBE TROTTER’s position at this time was approximately

105 miles south-southwest of Cabo San Lucas, almost 1,000

miles from United States waters.

Three persons were dispatched in the boarding vessel.

Commander Chapman instructed them to make a standard

Coast Guard document and safety inspection, filling out

Coast Guard form 4100, which covered safety equipment, --

floatation devices, pollution control, marine toilet inspection,

document inspection and the like. Commander Chapman did

not instruct them to search for marijuana, nor did he have

reason to suspect that any contraband was on board the

GLOBE TROTTER.

The boarding party arrived at the GLOBE TROTTER

2 As part of a "general administrative plan," Commander Chapman

was ordered to board and inspect all United States vessels less than

200 feet in length found in specific windows or corridors located

at established points in the Pacific. The purpose of the plan was to

“attempt to interdict vessels of American registry which were involved

in drug trafficking which vessels carry controlled suhstances destined

for the United States." During the patrol five vessels besides the

GLOBE TROTTER were boarded.

a.

at approximately 7:02 p.m. The crewmen identified them-

selves to the three occupants of the GLOBE TROTTER, peti-

tioners WATSON, EVENSON and BROWNING. and stated

that they were going to make “a standard Coast Guard document

and safety check.” Petitioner WATSON identified himself as the

owner and operator of the boat, and stated that petitioners

EVENSON and BROWNING were the only other persons on

board. As the boarding party entered the cabin to inspect the

vessel’s registration papers, one of the crewmen immediately

noticed a heavy odor of marijuana. Almost simultaneously, a

radip transmission from the VENTUR.OUS was heard ordering

the boarding party to muster the crew of the GLOBE TROTTER

on the fantail of the vessel, to conduct a pat-down search for

weapons, and to search the vessel.

The radio transmission had been prompted by Commander

Chapman’s observation of 40 to 50 boxes floating in the water

at positions consistent with their having come from the GLOBE

TROTTER. These boxes in fact had been jettisoned from

the GLOBE TROTTER in response to the Coast Guard’s

announcement that they intended to board and inspect the

GLOBE TROTTER.

The search of the vessel led to the discovery of a cardboard

box containing marijuana in the forward sail locker. This box

was similar to the boxes found floating in the water. Eighteen

such boxes were recovered, while the remaining sank. Each box

contained roughly 24 pounds of marijuana.

REASONS WHY THE WRIT

SHOULD BE GRANTED

In Coolidge v, New Hampshire, 403 U.S. 443, 461, 91 S. Ct.

2022, 2035 (1971), Justice Steward included within his

opinion the oft-quoted statement that, “{t} he word ‘auto-

mobile’ is not a talisman in whose presence the Fourth

Amendment fades away and disappears.”’ In agreeing with

the First, Fourth, Fifth and Eleventh Circuits that the Coast

Guard has carte blanche authority to stop and board Ameri-

can vessels on the high seas to conduct document and safety

inspections, the Courts have, in effect, emasculated the very

constitutional principles which these famous words were based

upon in relation to American citizens who step on board a

United States registered vessel. Besides violating the pginciples

recently established by this Court in Delaware v. Prouse, 440

U.S. 648, 99 S. Ct. 1391 (1979), followed by the Ninth Circuit

in United States v. Piner, 608 F.2d 358 (1979), the uncon-

scionable result reached by these Courts totally ignores the

great body of Fourth Amendment law formulated by the

Court in such noteworthy decisions as Terry v. Ohio, 392

U.S. 1, 88 S. Ct. 1868 (1968); Almeida-Sanchez v. United

States, 413 U.S. 266, 93 S. Ct. 2535 (1973); United States

v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574 (1975);

United States v. Ortiz, 422 U.S. 891, 95 S. Ct. 2581 (1975);

and United States v Martinez-Fuerte, 428 U.S. 543, 96 S. Ct.

1374 (1976).

If the Court continues to refuse to grant certiorari to

review this important issue, the Court will be condoning

conduct which offends the very spirit of the Fourth Amend-

ment. It is hard to believe that the Founding Fathers en-

visioned an exception to the Fourth Amendment which

authorized midnight, warrantless administrative searches

designed to produce evidence of a crime, but based on no

suspicion of wrongdoing. However, such is the current state

~9—

of the law, in which an illegal alien has more protection

on land than does an American citizen at sea. To allow

this absurd situation to remain a viable concept in Ameri-

can jurisprudence is to make a mockery of the Fourth

Amendment protections guaranteed every American citizen.

Due, therefore, to the conflict of the decisions of the

various Circuits and this Court’s decision in Prouse, which

has resulted in the sanctioning of the type of conduct which

is reminiscent of the practices employed by the English

which helped lead to the Revolutionary War, there can thus

no longer be any doubt that the granting of certiorari is

absolutely necessary in order to maintain the integrity of

the criminal justice system.

ARGUMENT

A. The Nighttime Stop And Boarding Of The GLOBE

TROTTER, Without Any Suspicion Of Non-com-

pliance With Document And Safety Regulations

Or Any Founded Suspicion That Criminal Activity

Was Afoot, Violated The Fourth Amendment Pro-

tection Against Unreasonable Searches And Seizures.

While United States v. Piner, supra, was pending before

the Ninth Circuit Court of Appeals, this Court decided Dela-

ware v. Prouse, supra. Prouse dealt with the random stop of

automobiles by state police for a check of driver’s license and

registration. Holding that such a stop of an automobile and

detention of its occupants constituted a “seizure” within the

meaning of the Fourth and Fourteenth Amendments, even

though the purpose of the stop was limited and the resulting

~10-

detention quite brief,? the Court concluded that a “stand-

ard of reasonableness” needed to be imposed “upon the

exercise of discretion by government officials . . . “to

safeguard the privacy and security of individuals against

arbitrary invasions . . . ° (See citations omitted.)” (440

U.S. at 453-454, 99 S. Ct. at 1396.) As to the appropriate

test, the Court stated:

” . , . [T]he permissibility of a particular law

enforcement practice is judged by balancing its

intrusion on the individual’s Fourth Amendment

interest against its promotion of legitimate

governmental interests.”” (/d. at 654, 99 S. Ct.

at 1396.)

Utilizing this test, the Court rejected Delaware's conten-

tion that the “stat>’s interest in discretionary spot checks

as a means of ensuring the safety of its roadways outweighs

the resulting intrusion on the privacy and security of the

person detained.” (/d. at 659, 99 S. Ct. at 1399.) Noting

that checkpoint stops were available as an alternative (citing

United States v. Martinez-Fuerte, supra, and United States v.

Ortiz, supra, the Court held:

“Given the alternative mechanisms available,

both those in use and those that might be

adopted, we are unconvinced that the incre-

mental contribution to highway safety of the

3$ee United States v. Martinez-Fuerte, 428 U.S. 43, 556-

558, 96 S. Ct. 3074, 3082-3083, 49 L. Ed. 2d 1116 (1976); United

States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574,

2578, 45 L. Ed. 2a £97 (1975); cf. Terry v. Ohio, 392 US. 1, 16,

88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889 (1968).

olka

random spot checks justifies the practice under

the Fourth Amendment.” (440 U.S. at 659, 99

S. Ct. at 1399.)

The Prouse decision no doubt allayed any doubts the

Ninth Circuit may have had in holding the actions of the

Coast Guard unreasonable under the Fourth Amendment.*

As stated by the appellate court:

“ . . . [We note that a concept of subjective

intrusion was introduced by the court in Mar-

tinez-Fuerte and elaborated on in Prouse. The

Court acknowledged in those*vases and in Ortiz

that a police stop of an individual automobile

may have a particularly unsettling effect upon

the ordinary person. And we believe that under

Prouse it is the weight of this subjective intrusion

that must be balanced against the governmental

need. If the stop of an automobile upon a public

highway by an identifiable police car is felt to

create such-subjective intrusion as to require the

use of potentially less intrusive alternatives, surely

the stop of an isolated boat after dark, followed

by a physical intrusion upon the boat itself, would

4in Piner, a Coast Guard cutter was cruising the waters of San

Francisco Bay on a routine patrol. At approximately 6:30 p.m.,

the running lights of the “Delphene,"' a 43-foot sailboat, were

spotted and the decision to board was made. It was stipulated

that the only purpose for stopping and boarding was for ''a routine

safety inspection,” that it was done "on a random basis," and that

“there were no suspicious circumstances." Once the "Delphene" was

boarded and the crew advised that the boarding was for a routine safety

inspection, bags of marijuana were observed through an open door. A

thorough search of the boat resulted in the seizure of over two tons of

marijuana.

a

have an unsettling effect immeasurably greater,

placing a far greater demand upon the govern-

ment to come forward with balancing factors.”

(608 F.2d at 361.)

The Court then concluded:

“ . . . That the random stop and boarding of

a vessel after dark for safety and registration

inspection without cause to suspect non-compliance

is not justified by a governmental need to enforce

compliance with safety regulations and constitutes

a violation of the Fourth Amendment.” (/d. at 361.)

Petitioners recognize that both Piner and Prouse did

acknowledge certain situations in which the practices involved

in each case would have satisfied Fourth Amendment require-

ments. This Court stated that its holding:

“ . . . does not preclude the State of Delaware

or other States from developing methods for spot

checks that involve less intrusion or that do not

involve the unconstrained exercise of discretion.

Questioning of all on-coming traffic at roadblack-

type stops is one possible alternative.” (440 U.S. at

663, 99 S. Ct. at 1401; see also note 26 on same page.)

The Piner Court similarly held that a stop and boarding after

dark would be justified if based on reasonable cause, such as an

articulable suspicion of non-compliance with safety regulations,

“or . . . conducted under administrative standards so drafted

that the decisign to search is not leit to the sole discretion of

the Coast Guard officer.” (608 F.2d at 358.)

Seizing upon this language, the appellate court in the

instant case found that Piner was not controlling on the

grounds that: (1) the stop here did not involve an exercise of

~13-

discretion by an officer in the field, but, instead, was con-

ducted pursuant to an “administrative plan,” (2) no other

feasible, less intrusive means for policing compliance with

safety and documentary regulations were shown, and (3)

the over-all intrusion here was less than in Piner, while the

governmental interests were greater. It is submitted that

each of the above conclusions were neither supported by

the facts legitimately before the trial court or simple logic

and basic common sense, and that the Court simply engaged

in a number of legal fictions in order to avoid ruling on the

obvious Fourth Amendment violations inherent in the

actions authorized by the Coast Guard Command.

(1) The Coast Guard Plan Was Arbitrary And

Discretionary.

While the appellate court was correct in con-

cluding that the Coast Guard plan did somewhat limit

the discretion of the officer in the field, the Court never-

theless ignored the arbitrary and discretionary aspects of

the plan itself. While the decision as to which vessels to

stop is supposedly no longer vested in the individual

Commanders, the specific aspects of the plan concerning

the cut-off point for the length of the vessels to be stopped

and inspected, the area to be patroled for such vessels, and

even the true purpose behind ordering the stops and inspec-

tions, were all arbitamry and discretionary decisions made by

Coast Guard personnel What the Coast Guard did, in reality,

was, rather than leaving the decision on which vessels to

stop to the officer in the field based upon objective Fourth

Amendment criteria, the Guard implemented a plan where

—14—

all vessels were stopp2d, no matter where, no matter when

and no matter why. Besides the suspect rason beaind

implementation of the plan in the first place, it is submitted

that this is clearly not the type of response the Prouse and

Piner Courts were looking to authorize.

In addition, each Coast Guard Commander still

exercised a certain amount of discretion in enforcing the

plan. Within the approximate 2- million square miles

of the Eleventh Coast Guard District, the Commander of

the VENTUROUS had to choose what specific “corridors”

and “windows” to patrol in order to intercept any vessels.

In the event the Commander chose a particularly heavily

traveled route and sighted more than one vessel, he would

then have had to choose which of the vessels to stop and

inspect.

Nor did the plan contain “specific neutral criteria”

which limited where the random searches could occur. (See,

e.g., Marshall v. Barlow's Inc., 436 U.S. 307, 313, 98 S. Ct.

1816, 1820 (1978). In fact, there really was only one

criterion—where in the Eleventh District would the cutters

most likely find ships laden with marijuana bound for the

United States? In other words, the area to be patrolled was

where the sole purpose of the mission could best be carried

out.

Even the decision to search vessels only under

200 feet in length was simply one of convenience. The

Guard attempted to justify this cut-off point on the ground

that, generally, larger commercial vessels are already subject

to inspection. Yet, many boats of less than 200 feet—those

that carry for hire, people or cargo—are already inspected

at regular intervals. Not all boats over 200 feet are engaged

afin

in the merchant marine trade.

Drawing a line at 200 feet also did not mean that

the Guard had the capability or intention of conducting

safety and document inspections of all vessels under 200

feet. It still remained a random and arbitrary determ .nation

by the individual Commanders as to what vessel w’ uld be

boarded. It was as if the Department of Labor } i respond-

ed to the Court's decision in Marshall v. Barlow s Inc., supra,

which required a warrant for OSHA inspections, by “‘limit-

ing’ OSHA inspectors to warrantless inspections of small,

medium cr fairly large businesses, and even certain large

businesses that fit some kind of nefarious “profile.”’ In

reality, the line drawn by the Coast Guard in its plan was to

give the Commanders the wides possible latitude to stop,

board and search those vessels believed to be most likely

to be carrying multi-ton quantities of marijuana. Any other

interpretation of the “administrative plan” or the intention

of the Cc ~ “Guard for its implementation is absulutely

ndiculous.

Finally, the belief by the officer in the field that

he had no discretion as to which vessels to stop certainly did

not lessen the “subjective intrusion” vis-a-vis the crew. If

Prouse is read in a common sense manner, it is clear that the

random and discretionary aspects of the stops were found

objectionable because such practices increased the “subjective

intrusion” occasioned by the stops. The discretion, in itselt,

was not what was objectionable, but, rather, that there were

no guidelines that attempted to min‘mize the “subjective

intrusion’’ which resulted from the exercise of that discretion.

Applying such an analysis to the case at bar, the

intrusiveness of the official conduct once on board is not

aftin

the issue. On the contrary, it is the boarding itself that con-

stitutes the intrusion. And, the Coast Guard's plan did

nothing to lessen such an intrusion, but, in fact, commanded

it.

It is thus submitted that the “administrative plan”

formulated by the Coast Guard apparently in response to the

Ninth Circuit's decision in Piner simply did not address the

concerns expressed by the Court in Piner or this Court in

Prouse. The plan provided the Commanders with a standard

so overbroad that it was, in fact, no standard at all.

(2) Less Intrusive Alternatives

. While petitioners recognize that the efforts of the

Coast Guard to enforce compliance with document and

safety regulations would be more difficult without the

authority to stop and board a vessel at any time, it certain-

ly would not be impossible as the appellate court so concludes.

One puch means would be harbor inspections. In

Prouse, this Court suggested checkpoint stops as a possible

alternative to the State of Delaware's plan, since the “sub-

jective intrusion” would be lessened due to the motorist

being apprised beforehand of the stop. It is submitted that

a harbor can just as easily and effectively be blocked as a

highway, For, in a harbor, which is, in reality, a sheltered

by, access is only possible through one entrance. Harbors

are, in fact, chosen for this reason as being secure from the

battering of ocean storms. Most boats have their home port

in such a harbor. To set up a checkpoint at the entrance to

a harbor, therefore, would be a far more efficient, sefe, and

economical method of checking boats for safety and document

=| =

violations. By virtue of the large number of contacts that

would be made, such a practice would be a far more effective

means to ensure the safety of American citizens than the

somewhat remote possibility of encountering a Coast Guard

cutter somewhere in that four-fifths of the earth's surface

which constitutes the high seas.

Annual dockside inspections, which were noted

to be impracticable by the appellate court, are also a possi-

bility. In the first place, if there is someone in the boat,

and the boat is in the water, two requisites for dockside

inspection, then the boat is “in use,” and compliance with

regulations is required. (46 U.S.C. 8 1461(c).) In the

second place, there is no reason why pleasure craft should

not be subject to annual safety and document inspections

similar to those in force in many states (e.g., Pennsylvania)

with respect to motor vehicles. That proper documentation

is a “genuine” concern to the Coast Guard can certainly

be inferred from the “administrative plan.” Acquisition

of proper documentation could be made dependent upon

inspection. This very obvious method of ensuring that all

vessels comply with the necessary regulations would be a

much less wasteful use of police resources than the type of

operation now in use.

Lastly, there has been no showing that the obtain-

ing of a search warrant, based upon probable cuase, would

not be an acceptable alternative. Warrants are clearly avail-

able by radio to Coast Guard personnel acting in a law

enforcement capacity (Rule 41(a) and 41(c)(2), F.R. Cr.P.),

and, unless this Court is prepared to rule that a different

standard applies to searches and seizures on the high seas,

no reason exists why the Coast Guard should not be bound

by the same standard. As stated by Judge Schwarzer, United

States District Court Judge for the Northern District of Calif-

ornia, in originally striking down the search in Piner:

“The Court is not convinced that a procedure

under which the Coast Guard must obtain a

warrant or which otherwise circumscribes the

discretion of its personnel at sea to board vessels

will seriously burden or diminish the effectiveness

of the regulatory system. Marshall v. Barlow's Inc.,

98 S. Ct. 1816. The public interest in the enforce-

ment of boat safety regulations has not been shown

to be a matter of such urgency as to justify the board-

ing by Coast Guard personnel at all hours and places

of boats selected by them in their unrestrained dis-

cretion. The enforcement problem confronting the

Coast Guard is no more serious than that confront-

ing the Border Patrol whose roving discretionary

patrol stops and searches have been held to infringe

Fourth Amendment interests. (See citations omitted. )”

(452 F. Supp. 1335, 1340 (N.D. Cal. 1978].)

(3) Intrusion On Privacy Interests Versus Govern-

mental Interest In Securing Compliance With

Document And Safety Regulations.

Petitioners do not quarrel with the proposition

that due to the numerous functions the Coast Guard is

empowered and relied upon to perform, the Guard shouid

be granted very broad authority in its efforts to enforce and

assist in the enforcement of all applicable federal laws upon

the high seas and waters subject to the jurisdiction of the

1 9—

United States. Specifically, in connection with its law

enforcement activities, the Coast Guard is given statutory

authority to board vessels and to make “‘searches, seizures,

and arrests upon the high seas and waters ovet which the

United States has jurisdiction, for the prevention, detection,

and suppression of violation of laws of the United States.”

(14 U.S.C. § 89%a).) This statute has been held to be con-

stitutional, and some Courts, as previously indicated, have

even held that the Fourth Amendment does not place any

limits on the Guard’s authority to board vessels and «duct

registration or safety inspections. See, eg., United States v.

Williams, 617 F.2d 1063 (Sth Cir. 1980) (en banc); United

States v. Warren, 578 F.2d 1058 (Sth Cir. 1978) (en banc);

United Sta: xs v. Hilton, 619 F.2d 127 (ist Cir. 1980);

United States v. Miller, 589 F.2d 1117 (ist Cir. 1978),

cert. den., 440 U.S. 958, 99 S. Ct. 1499 (1979); United

States v. Harper, 617 F.2d 35 (4th Cir.), cert. den., 449 U.S.

887, 101 S. Ct. 243 (1980); United States v. Clark, 664 F.2d

1174 (11th Cir. 1981) (per curiam). It is submitted that not

only do these decisions, as well as the decision in the instant

case, ignore what an intrusion upon Fourth Amendment

interests are entailed by such vessel inspections, but that

these Courts are simply incorrect, as “the Coast Guard’s

authority must be subject to the limitations imposed by

the Fourth Amendment, because no act of Congress can

authorize a violation of the Constitution.” United States

v. Odneal, 565 F.2d 598, 601 (9th Cir. 1977), cert. den.,

435 U.S. 952, 98 S. Ct. 1581 (1978), relying upon Almeida-

Sanchez v. United States, supra; see also United Sautes v.

Raub, 637 F.2d 1205, 1208 (9th Cir. 1980).

Within the excellent Fourth Amendment discussion

~20-

contained in the Prouse opinion, this Court dealt with the

evil inherent in a plan which authorized the routine stopping

and inspecting of any vehicle traveling on a State’s highway.

To such a plan, which is precisely what the plan in this case

involved, the Court had the following to say:

“The marginal contribution to roadway safety

possibly resulting from a system of spot checks

cannot justify subjecting every occupant of every

vehicle on the roads to a seizure—limited in mag-

nitude compared to other intrusions but nonethe-

less constitutionally cognizable—at the unbndled

discretion of law enforcement officials. To insist

upon neither an appropmiate factual basis for

suspicion directed at a particular automobile nor

upon some other substantial and objective standard

or rule to govern the exercise of discretion ‘would

invite intrusions upon constitutionally guaranteed

rights based on nothing more substantial than

inarticulate hunches . . . ° Terry v. Ohio, supra,

392 U.S. at 22, 88 S. Ct. at 1880. By hypothesis,

stopping apparently safe drivers is necessary only

because the danger presented by some drivers is not

observable at the time of the stop. When there is

not probable cause to believe that a driver is

violating any one of the multitude of applicable

traffic and equipment regulations—nor other arti-

culable basis amounting to reasonable suspicion

that the driver is unlicensed or his vehicle unregis-

tered—we cannot conceive of any legitimate basis

upon which a patrolman could decide that stopping

a particular driver for a spot check would be more

niet.

productive than stopping any other driver.” (440

U.S. at 661, 99 S. Ct. at 1440; emphasis added and

footnote omitted.)

The same concerns relating to the privacy interests

of motorists which caused the Prouse Court to impose Fourth

Amendment limitations on the stops involved in that case are

also present in the instant case. Merely causing a vessel to

alter its course or speed involves an interference with the

individual’s right of free movement and is thus closely analo-

gous to the investigatory stops of individuals and automobiles

recognized by the Prouse decision as constituting “seizures”

of the person. Safety inspections also involve a boarding and

a comprehensive search, which creates significant intrusions

upon the distinct individual inierest in privacy. The boarding

alone provides a close view of areas of the vessel which the

individual may justifiably seek to reserve as private. Further-

more, the safety search may entail a thorough examination

of virtually ail areas of the vessel. For example, it is standard

procedure for the Coast Guard to compare the vessel’s main

beam number with the number on its registration papers,

which may take the inspector into the hull of a commercial

or semi-commercial craft or into the main living area of the

pleasure vessel. Other areas of the vessel, including the engine

room or compartment in the marine toilet, are also routinely

subject to inspection.>'

SSee United States Coast Guard, U. S. Dept. of Transp., Boarding Manual

S IIL-IV, at 3 - 4 (1977); see also United States v. Hilton, 469 F. Supp.

94, 98, note 4 (D. Ma. 1979) (describing check of main beam number in

engine room and noting that normal safety inspection includes check of

engine room, in any event).

==

The Court should also consider the fact that

vessels are oftentimes used by sailors at sea as their actual

home, and that vessels should thus be accorded a much

greater expectation of privacy than automobiles. As stated

by the Fifth Circuit in United States v. Cadena, 558 F.2d

100 (1979):

“ . . . there are differences [in the use of

vessels as compared with automobiles]. 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 expecta-

tion of privacy even in the curtained limousine

or the stereo-equipped van that every mariner

or yachtsman expects aboard his vessel. . . .

We . . . conclude that the increased measure

of privacy that may be expected by those aboard

a vessel mandates careful scrutiny both of the

circumstances excusing the-failure to secure a

warrant... .”

While the statistics on boating safety relied upon

by the appellate court were enlightening, they still did not

support random, warrantless, nighttime safety inspections.

While tragic, these numbers were extremely small when

compared to the annual 50,000 deaths on the nation’s

highways. As recently observed in a 1980 Harvard Law

Review article:

“While the government surely has a legitimate

interest in promoting safety at sea, the over-all

importance of equipment inspection to the

—23—

promotion of safety is limited by the fact that

only a relatively small number of accidents and

fatalities are caused by equipmeuit deficiencies

of the type which are presently checked for by

the Coast Guard.” High on the Seas: Drug

Smuggling, the Fourth Amendment and

‘Warrantless Searches at Sea, HARVARD LAW

REVIEW, Vol. 93, pp. 725, 741-742 (1980).

Nor can it seriously be argued that “pleasure

boating” is the type of commercial enterprise that has

been so pervasively regulated as to fall within the admin-

istrative search exception. See United States v. Biswell,

406 U.S. 311, 92 S. Ct. 1593 (1972) [federal regulation

of firearms] Colonnade Catering Corp. v. United States,

397 U.S. 72, 90 S. Ct. 774 (1970) [federal regulation of

liquor]. In Marshall v. Barlow's Inc., supra, the Supreme

Court clarified this administrative search exception. The

distinguishing element giving rise to the exception in

pervasively regulated Biswell businesses or traditionally

regulated Colonnade industries, said the Court, is the

awareness and expectation by a person entering such a

business that he is subjecting himself to Government

supervision and regulation. Under these conditions, no

reasonable expectation of privacy can exist for the proprietor

of the enterprise. As had been previously stated by this Court

in Almeida-Sanchez v. United States, supra:

“Citizens engaged in such federally licensed and

regulated enterprises [must] accept the burdens

as well as the benefits of their trade . . . . The

businessman in a regulated industry in effect

~24—

consents to the restrictions placed upon him.”

(413 U.S. at 271, 93 S. Ct. at 2538.)

In the recent Supreme Court decision of Dono-

van v. Dewey, ..... US. ..... June 17, 1981), Justice Marshal,

writing for the majority, reaffirmed the principle that

legislative schemes authorizing warrantless administrative

searches of commercial property do not necessarily violate

the Fourth Amendment “when Congress has reasonably

determined that warrantless searches are necessary to further

a regulatory scheme and the Federal regulatory presence is

sufficiently comprehensive and defined that the owner of

commercial property cannot help but be aware that his

property will be subject to periodic inspections undertaken

for specific purposes.”” Concluding that anyone involved

in the mining industry could not help but be aware that he

“will be subject to effective inspection,”’ the Court upheld

the warrantless inspections of mines and quarries under the

Mine Safety and Health Act.

Judged against these criteria, it would be unrea-

sonable to suggest that a person engaged in recreational

activity such as “pleasure boating” would have no real ex-

pectation that his vessel might be subject to inspection, at

any time and at any place, by Coast Guard personnel.

Without the “relatively unique circumstances” to indicate

to an individual that his activity is subject to a regulatory

scheme authorizing warrantless inspections, traditional

Fourth Amendment criteria should govern such regulatory

inspections.

In Klutz v. Beam, 374 F. Supp. 1129 (W.D.N.C.

1973), a three-judge district court reached such a conclusion,

=25..

finding random safety inspections unconstitutional. Al-

though that case involved a lake and not the high seas,

it involved a statute similar to 14 U.S.C. § 89(a) in that it

authorized officers to board and inspect any boat to ensure

that its equipment met all statutory safety requirements.

The statute made no mention of a warrant. In finding that

a warrantless boarding without probable cause violated the

Constitution, the Court commented at p. 1133:

“Even without warrants, the state could reason-

ably establish a procedure similar to that involv-

ing motor vehicles, requiring periodic inspection

of safety and sanitation features with the posting

of a sticker showing compliance with such inspec-

tion at a recorded time, and the state could make

it unlawful to operate a boat without such a duly

issued and current sticker appropriately displayed.

Huwever, possible emergencies aside, warrantless

searches against the owner’s will of a boat on a

landlocked lake, which can be repeated, willy-

nilly, by that inspector or any other inspector

who chooses to board the boat, is an oppressive

and unreasonable —and unconstitutional—burden

not justified by the consideration of sanitation

and safety advanced by the state.”

In the recent case of United States v. Streifel,

665 F.2d 414 (1981), the Second Circuit, while approving

the Coast Guard’s warrantless boarding of a foreign vessel

200 miles off the New England coast, held that there was

“no compelling reason to fashion a different set of principles

for treatment of searches and seizures on the high seas than

~26~

have been developed by Jerry and its progeny.” (/d.

at 423.) The Court thus concluded that any land-sea

difference in governmental need or in intrusiveness

effects cnly how Fourth Amendment priiiciples are

applied, not their applicability.

In summary, it is contended that the standard

of articulable and reasonable suspicion applied by this

Court in Terry v. Ohio, supra; Almeida-Sanchez v. United

States, supra; United States v. Brignoni-Ponce, supra;

United States v. Ortiz, supra; United States v. Martinez-

Fuerte, supra; and Delaware v. Prouse, supra, is the appro-

priate standard to judge the constitutionality of the Coast —

Guard’s plan to board all United States vessels whenever

and wherever encountered on the high seas. The stop in

the instant case—involving the hailing of a vessel at sea,

during the nighttime, by a roving patrol, and then a board-

ing of that vessel, after which the vessel’s occupants were

ordered to stand aside while an indiscriminate search of

any area of the vessel is conducted—certainly created a

greater objective and subjective intrusion than involved

in a roving patrol stop of an automobile. While certain

steps were taken to minimize the concerns or fright the

crew of the GLOBE TROTTER might have had, such

precautions, in the balancing equation, still did not out-

weigh the constitutional right to be free from govérn-

mental interference in the absence of specific and arti-

culable facts justifying the particular intrusion.

Based upon a “reasonable” interpretation of

the protections afforded United States citizens under the

Fourth Amendment, therefore, it is respectfully submitted

that the actions of the Coast Guard, committed pursuant

ed

<=

to the “administrative plan,” should have been struck

down as grossly violative of the Fourth Amendment.

B. The Use By The Coast Guard Of Its Document

And Safety Inspection Authority As A Pretext

To Search For Marijuana And Other Contraband

Required A Finding That The Stop and Boarding

Of The GLOBE TROTTER Was Illegal.

In the court below, the Government stipulated that

if called and sworn as a witness, Commander Chapman

would have testified that,

“ My written orders, instructed me to proceed

south to an area approximately 100 miles west

of the mouth of the Guif of California via

specified way points and return. During the

patrol, as part of a general administrative pian,

I was to board and inspect all! United’ States

vessels less than 200 feet in length by patrolling

specific windows or corridors located at estab-

lished points in the Pacific. | was thereby to

attempt to interdict vessels of American registry

which were involved in drug trafficking which

vessels carried controlled substances destined

for the United States.”

Indeed, the Government conceded in its Opening “rief

that “‘one of the purposes of the administrative plan was

to attempt to interdict the flow of marijuana into [the

United States]. The appellate court implied from this

concession that the corridors and windows of the

VENTUROUS’ patrol were chosen because they were

~28-

areas of suspected drug trafficking ®

Even with this recognition of the true and only pur-

pose behind the implementation of the “administrative

plan,” the appellate court still refused to consider any

criminal enforcement interest the Coast Guard may have

© An indication of what practices are used in the Coast Guard can

be found in the Boston Globe, September 17, 1978 (Parade Maga-

zine), at p. 7:

?:

"If we suspect a ship of carrying narcotics and it

doesn't stop . . . [w]arning shots usually stop

them. Then we board, usually with five men in a

smaller boat, well armed. We say we are operating

under the law . . . It isa subterfuge. We say we are

running a check for ‘compliance with U. S. law.’ Or

we say: ‘We are authorized under umpty umpty umpt

o” the government something,’ and we board.

"If it is empty, we do a routine safety inspection

(Statement of Commander John Streeper, U.S.C.G., Head of General Law

Enforcement Section.) See also Drug Smuggling (San Juan, P.R. ):

Hearings Before the Subcomm. on Coast Guard and Navigation

of the House Comm. on Merchant Marine and Fisheries, 94th

Cong., Ist Sess. 13 (1975):

"By the placement of a Customs Patrol Officer on board

a Coast Guard vessel, thus utilizing the Coast Guard auth-

ority to hail American vessels . . . for the purpose of

performing safety and documentation checks . . ., the

first waive of the attack is launched . . . . The Coast

Guard provides the entree and the Customs officer pro-

vides the expertise and experience in concealment tech-

niques, drug identification and interdiction."

(Statement of Albert Bazemore, Regional Comm'r. of Customs, at

23 - 24.)

-29~

had, relying instead on the “independent administration

justification” for the plan. If the words “document and

safety inspection” had been mentioned anywhere in the

orders received by Commander Chapman, then counsel

might have been able to understand how the appellate

court concluded that there was an administrative purpose

behind the plan. Such, though, was not the case. The

only common sense conclusion that could have been drawn

from the stipulation and other facts was that the Coast

Guard, pursuant to its authority to conduct document

and safety inspections, was authorizing its Commanders

to board United States flagged vessels for the exclusive

purpose of looking around in the hope of finding contraband.

Any other interpretation of the Coast Guard’s intention

would be ludicrous.

This Court has previously recognized in a number

_ Of.cages that where » earch or seizure *¢ conducted with the

purpose of discovering evidence that may be used in a crim-

inal prosecution, the reasonableness of the seizure is judged

by standards applicable to criminal investigations, that is,

probable cause.’ In Michigan v. Tyler, 436 U.S. 499, 98 S.

Ct. 1942 (1978), a case that involved several entries into

a premises made during, immediately after, and sometime

after a fire, the Court held the initial entries valid under

the administrative inspection standard. A later entry,

7 As the alleged administrative inspection conducted in the instant

case was just a pretext for discovering evidence that could be used

in a criminal prosecution, the Fourth Amendment's probable

cause standard was the appropriate standard by which to judge

the conduct of the Coast Guard.

~30-

however, made for the purpose of investigating a possible

crime (arson) was held invalid. In so holding, the Court

adopted the language of the Michigan Supreme Court and

stated:

“ ‘Where the cause [of the fire] is undetermined,

and the purpose of the investigation is.to determine

the cause and to prevent such fires from occurring

or recurring,a . . . search may be conducted

pursuant to a warrant issued in accordance with

reasonable legislative or administrative standards

or, absent their promulgation, judicially prescribed

standards; if evidence of wrongdoing is discovered,

it may, of course, be used to establish probable

cause for the issuance of a criminal investigative

search warrant or in prosecution.’ But, if the

authorities are seeking evidence to be used ina

criminal prosecution, the usual standard [of

probable cause] will apply.’ 399 Mich., at 584,

250 N.W.2d, at 477.” (436 U.S. at 508, 98 S. Ct.

at 1949; emphasis added.)

Again, in Camara v. Municipal Court, 387 U.S. 523,

87 S. Ct. 1727 (1967), the Court pointed out that:

“[I}n a criminal investigation, the police may

undertake to recover specific stolen or contra-

band goods. But that public interest would

hardly justify a sweeping search of an entire

city in the hope that these goods might be found.

Consequently, a search for these goods, even with

a warrant, is ‘reasonable’ only when there is ‘prob-

able cause’ to believe they will be uncovered in a

particular [place] .” (387 U.S. at 535, 87 S. Ct. at

ites

1734.)

Finally, as Justice Blackmun stated in his concurring

opinion in Delaware v. Prouse, supra:

“[A] random license check on a motorist oper-

ating a vehicie on highways owned and maintain-

ed by the State is quite different from a random

stop to uncover violations of laws that have

nothing to do [with license violations] .” (440

U.S. at 664, 99 S. Ct. at 1401.)

Thus, where an administrative seizure or search is

made with the objective of uncovering evidence to be

used in a criminal prosecution, standards governing ad-

ministrative seizures and searches will not be enough. The

Government will have to justify the intrusion based on

- traditional concepts of probable cause. As stated by the

Court in Abel v. United States, 36? U.S. 217, 80 S. Ct.

683 (1960):

“We emphasize again that our view of the

matter would be totally different had the

evidence established, or where the courts

below were not justified in finding, that the

administrative warrant was here employed

as an instrument of criminal law enforcement

to circumvent the latter's legal restrictions,

rather than as a bona fide preliminary step

in a deportation proceeding. The test is whether

the decision to proceed administratively toward

deportation was influenced by, and was carried

out for, a purpose of amassing evidence in the

prosecution for crime.” (362 U.S. at 230,

80 S. Ct. at 692.)

one ine

The various Circuit Courts of Appeals have also discussed

this issue. In United States v. Davis, 482 F.2d 983 (1973), the

Ninth Circuit ruled on the constitutionality of airport searches

of deporting passengers in the wake of a rash of airline hijack-

ings. Upholding the search because of “the essentially admin-

istrative nature of the screening process,” the Court warned

that:

“There is an obvious danger, nonetheless, that

the screening of passengers and their carry-

on luggage for weapons and explosive will be

subverted into a general search for evidence oj

crime. If this occurs, the courts will exclude

the evidence obtained.” (/d. at 909, footnote

omitted; emphasis added.)

In Taglavore v. United States, 291 F.2d 626 (1961),

the Ninth Circuit strongly condemned the practice of using

a valid arrest for a traffic misdemeanor as a pretext or subter-

fuge to search for marijuana. In language that addressed the

formidable taks of the Coast Guard today, the Court stated

that “in no field of law enforcement and detection is the

work of the law officers more difficult [than in narcotics

cases] ; yet, difficult as detection may be, the arm of the

law extends constitutional safeguards which must be respect-

ed.” (/d. at 264.) The facts of Taglavore were that an inspect-

or of police thought the defendant was carrying marijuana on

his person. He ordered two of his officers to arrest Taglavore

on a warrant for two traffic violations. The inspector speci-

fically advised the officers to be alert for marijuana. The

arrest was admittedly valid. Nevertheless, the Court struck

down the search, stating:

“Where the arrest is only a sham or a front being

~33-

used as an excuse for making a search, the arrest

itself and the ensuing search are iliegal . . . .

Were the use of misdemeanor arrest warrants as

a pretext for searching people suspected of felonies

to be permitted, a mockery could be made of the

Fourth Amendment and its guarantees.” (/d. at

266.)

In an analogous situation, pretext stops of automobiles

to check licenses and registration, the Courts have not hesi-

tated to strike down the abuse of legitimate authority. In

United States v. Carrizoza-Gaxiola, $23 F.2d 239 (9th Cir.

1975), the Government, on appeal, sought to justify a car

stop as a valid check of license and registration, when in fact

the officers had stopped the car because they were suspicious

of car theft based on a stolen car profile. The granting of the

metion to suppress was upheld. Likewise, in Amador-Gonzelez

v. United States, 391 F.2d 308 (Sth Cir. 1968), the Court

struck down a search for narcotics following a traffic arrest,

stating that “([t] he arrest must not be a mere pretext foran —

otherwise illegitimate search.” (/d. at 313.)

Prior to this Court’s ruling in Prouse, numerous courts

had held that if a valid stop for a license check were used as

& pretext, the subsequent search violated the Fourth Amend-

ment.

8see United States v. Cupps, 503 F.24 277 (6th Cir. 1974); People

v. McPherson, 550 P.2d 311, 314 (1976) (safety check permissible if

"not merely a ruse or a guise to conduct searches of cars"] ; Jowa v.

Cooley, 229 N.W.2d 755 (1975); Palmore v. United States, 290 A.

24 573, 582 (D.C. 1972) ["spot check is not to be used as a substitute

for a search for evidence of some possible crime unrelated to possession

~34~-

The Ninth Circuit decision in United States v. Hellman,

556 F.2d 442 (1977), also disapproved of pretext seizures in

another vehicle situation. The Court held that if impounding

and inventorying of a car was a pretext for “an investig>tory

police motive,” that the warrantless sarc: ot the car was un-

reasonable and the evidence seized should have been suppress-

cu. fhe Court noted that the Supreme Court in upholding

routine car inventory searches in South Dakota v. Opperman,

428 U.S. 364, 96 S. Ct. 3092 (1976), had made it clear that:

“*(T] here is no suggestion whatever that his

standard procedure, essentially like that follow-

ed throughout the country, was a pretext con-

cealing an investigatory police notice. 428 U.S.

at 376, 96 S. Ct. at 3100.” (Footnote omitted.)?

of a driver's permit"]; People v. Harr, 235 N.E.2d | (Ill. 1968)

[police cannot use license check ''as a mere subterfuge to obtain

information or evidence not related to the requirement} ;

Nebraska v. Holmberg, 231 N.W.24 672, 678 hasten to state,

specifically and emphatically, that a spot check is not to be used as a

pretext to search for evidence of sonie [unrelated] crime") ; Morgan

v. Town of Heidelberg, 150 So. 2d 512, 515 (Miss. 1963) [""When

the officer's primary purpose in stopping the motorist is not to inspect

his license, but to examine the contents of the vehicle, the detention

is . . . amere subterfuge . . . fora failure to procure a warrant"’}.

See State v. Gwinn, 301 A.2d 291 (Del. 1973) [automobile

inventory is permissible if ''not under pretext to gather evidence

without a warrant"] ;Gonzalez v. Oklahoma, 507 P.24 1277

(1973) [where police inventory is a subterfuge, based on suspicion

that contraband might be stored in the vehicle, the discovery of such

contraband is inadmissible and the police inventory void ab initio).

While certain Courts, that have dealt with this issue in

the very same factual setting as that in the instant case, have

rejected the pretext claim, those cases did not involve allega-

tions of a distric-wide plan to use safety searches to look for

marijuana. In other words, there was not evidence to the

effect that the primary, motivating force behind the stop and

boarding was to search for drugs.

In a memorandum to Admiral Parker, then head of the

Eleventh District, Commander James Meade, legal counsel

for the District and a 24-year veteran of the Coast Guard,

wrote about options in light of the Ninth Circuit’s ruling in

Piner. Commander Meade wrote that:

“[I}n recent years; the Coast Guard has become

involved in the enforcement of criminal law, as

opposed to regulatory/safety law. If we are

honest, we would probably admit that as many

boardings are conducted to look for drugs as for

PFDs, i.e., we are now really into ‘searches’ as

opposed to ‘inspections.’ ”

When Commander Meade revealed the modus operandi of

the Coast Guard, he obviously never believed his warnings

would be revealed. But, a more apt statement of the currer.t

practices of the Guard could not be written.

One of the principles that is unique to our constitution-

al system is that “fairness” to the defendant should be of

overriding concern in, the execution of law enforcement.

Principles such as the “exclusionary rule” and “entrapment”

indicate that even the “guilt” of a defendant does not out-

weigh the mandate for law enforcement to maintain propriety.

That the “ends do not justify the means” is really a truism in

the criminal area. Thus, to permit the type of blatant misuse

of authority that the Coast Guard has been engaging in

is to sanction hypocrisy and deceit in American Jurispru-

dence.

CONCLUSION

For the above-mentioned reasons, petitioners JACK

OSBORN WATSON, JEFFREY CRAIG EVENSON and

DALE STANLEY BROWNING respectfully request that

this Honorable Court grant the instant Petition for Writ

of Certiorari.

Respectfully submitted,

MICHAEL PANCER

Attorney for Petitioner Watson

FRANK RAGEN

Attorney for Petitioner Evenson

GERSHON D. GREENBLATT

Attorney for Petitioner Browning

Annexed:

“ Opinion of the Court Below - filed June 2, 1982

“B” Denial of Petition for Rehearing En Banc - filed

August 19, 1982.