*1 pajamas her when who was burned plaintiff pajama fabric Jaftex sold the
caught fire. America, UNITED STATES in the Massa- certain other defendants to Plaintiff-Appellee, purchased Jaftex fab- chusetts action. Mills. Aetna issued an Randolph from ric Randolph Mills that in- policy to insurance WILLIAMS, Frank Gunnar The en- cluded a “vendors endorsement.” Defendant-Appellant. Randolph insured dorsement vendors No. 78-5413. endorsement did not products. Mills’ coverage particular its to by its terms limit Appeals, Court of vendors, pre- but it included a statement Fifth Circuit. percentage of sales mium which was to be by Randolph Montgomery Mills to Ward May only. ruling summary on the motion for
In court considered affi-
judgment the district parties. argues Jaftex
davits filed both unambiguously
that the contract extended vendors, and, therefore, ex-
coverage to all not be considered.
trinsic evidence could
Although may a court not look outside the unambiguous ex-
contract if it contains an intent, Langdon,
pression of Corbin (1974),
N.C.App. external S.E.2d may be considered when the terms
matters ambiguous; are
of the written instrument may
extrinsic evidence be used to make plain
meaning may of the instrument but vary the writ-
not be used contradict agreement.
ten American Potato Co. v. Brothers,
Jenette
172 N.C.
(1916). apply policies The same rules
insurance, and extrinsic evidence ambiguous. policy
considered if the Wil- Co.,
liams v. Greensboro Fire Insurance
N.C. S.E. premium
We term in the believe and, gives ambiguity,
endorsement rise to
therefore, of extrinsic matters consideration produced by
was correct. The affidavits the intent clearly
defendants revealed Randolph parties policy, to the Mills
Aetna, provide coverage with insurance
respect products by Randolph sold Mills Montgomery only. present Ward Jaftex nothing defendants’ show
ed refuted
ing coverage parties intended insurance. Because no contract of existed,
genuine issue of material fact
entry summary judgment for defendant
was correct.
AFFIRMED.
1066 *6 Jacobs, Miami, Fla., de- G.
Warren fendant-appellant. Sims, Ala., Mobile, for amicus H.
Patrick curiae. Kimbrough, Jr., Atty., Mo
Wm. A. U. S. Ala., bile, Mervyn Hamburg, Atty., U. S. Justice, C.,D. Dept. Washington, plaintiff-appellee. COLEMAN, Judge,
Before Chief GODBOLD, BROWN, AINSWORTH, RO FAY, NEY, GEE, TJOFLAT, HILL, RU VANCE, KRAVITCH, BIN, M. FRANK HENDERSON, JOHNSON, Jr., GARZA, REAVLEY, POLITZ, HATCHETT, AN TATE, D. DERSON, RANDALL, SAM JOHNSON, CLARK, A. Cir THOMAS Judges.* cuit TJOFLAT, Judge: Circuit *7 case, marijuana in- smuggling This is a have We volving a search seas. en the taken the case banc to harmonize in the precedent that has evolved discordant original and to set aside the Fifth Circuit application this nautical panel’s improper in standards of fourth amendment context test searches developed that courts analy- seizures that occur ashore. Our uncertain- of the law should diminish the sis charged with that has burdened those ty the Unit- enforcing on the seas the laws of ed States.
* Judge Goldberg participate does not in this decision. was a of the en banc therefore member 46(c) partici- Judge participate in the Charles Clark did not court under 28 U.S.C.A. pated argument banc. or decision of this case. in the oral the case en consideration that time he has senior status Since taken
I tan Peninsula. On board the ACUSHNET suspect was a list of vessels that included charged with Frank Williams was Gunnar description of the vessel he Stevenson’s that import marijuana in violation conspiring to had identified as the PIGH. Since the de- (1976). At time of of 21 the U.S.C. § vessel scription matched the under observa- trial, he Govern- Williams’s bench and the tion, contacted El Commander Peck the that the could stipulated ment Government DEA, him in- gave Paso which information give following call witnesses who would the dicating that the PHGH and the PIGH that led to his account of the circumstances were the same vessel. PHGH, January the a 270- arrest. In cargo registry, foot of Panamanian vessel approached the the When ACUSHNET sulphur cargo PHGH, took on a in Venezuela. the PHGH hoisted a signal distress owner, Karavias, The vessel’s Emanuel By radio, flag. the ACUSHNET asked departed came aboard destination, before origin, cargo to state its PHGH time, ship’s cap- Venezuela. that About displaying flag. and reason for a distress tain members that the crew told crew replied The PHGH that she was enroute ship paid Mobile, would be in full as soon as the had Alabama, from Aruba to she picked up cargo off the load Colombian carrying sulphur, was and that she had coast in and delivered somewhere generator problem requiring no Coast departed ship Gulf of Karavias Although Mexico. Guard assistance. the PHGH Aruba, leaving in special flag country behind radio flew indicating regis- no Aruba, tration, equipment. In two na- on appeared Dominican name “Panama” stern, opera- tionals regis- came aboard and took over and the vessel was in fact in equipment. ship pro- tion of the tered Panama. radio The ceeded to the coast of Colombia and an- The ACUSHNET maintained visual sur- chored As offshore. several smaller vessels veillance of the from the time PHGH PHGH, alongside came all mem- crew sighting. initial 5:00 on At about a. m. Dominicans, bers except cap- the two February crew members of the PHGH tain, and two officers ordered other were clothes, began waving toilet paper, and below cargo while the PHGH took on some flashlights signals. giving hand This defendant, from the vessels. smaller The activity By continued for six hours. 4:30 Williams, American, an came as the aboard stopped that afternoon the had ship dead loading began. When one of the crew time, the water. At with no encour- go members tried to above to see what was Guard, agement from the Coast a PHGH deck, happening he on was turned back dove crewman overboard and swam to the Williams, appeared who to be armed. defecting ACUSHNET. crewman told the Coast Guard that there was “dirty busi- 25, 1978, Stevenson, January On John complained ness” board the PHGH and Drug (DEA) Enforcement Administration working about conditions. pilot, flying spot a mission to vessels might drug trafficking. involved Peck, February On Commander who cargo He observed a vessel anchored about contact continually had been with Coast one and one-half miles off coast of ashore, Guard authorities received a mes- Colombia and several craft smaller sage Department from the State that the *8 were rendezvousing with the vessel. cargo Foreign Panamanian Vice-Minister of Af- suspect He cargo identified the as the vessel fairs had the Coast to authorized Guard PIGH and his to reported observations the board, PHGH, stop, and, the if and search El Paso Intelligence discovered, Center of the DEA. contraband were to take the port vessel to a United and hold 30, 1976, On January the Coast Guard prosecution. on those board for criminal ACUSHNET, Cutter under the command of Peck, sighted bearing CDR A. C. party a vessel armed boarded the An Coast Guard the name on February PHGH international waters 2. One Coast Guards- PHGH about 100 miles Yuca- was check the vessel’s tip east man instructed to
1071
govern-
The
“before the
Failing
panel held that
number.
to
registration
official
stop,
to
foreign vessel
room,
ment
order a
engine
he
the
in the
find
number
suspicion that criminal
. reasonable
cargo hold. When he
to the
proceeded
shown,”
be
id. at
afloat must
activity
hatch,
discovered, atop
[is]
the
the
he
opened
fourth amendment
and found that this
hun-
legitimate cargo
sulphur,
of
several
Next,
amply met.
the
standard had been
packages,
of which
paper
some
dred brown
the search that
panel considered whether
torn, revealing vegetable matter that
were
marijuana
of
discovery
the
the
resulted in
weight
marijuana. The
to
total
proved
the
and held
was unconstitutional
21,680 pounds.
marijuana
the
was
of
any of Wil-
search could not have violated
Guard seized the vessel
The Coast
rights,
liams’s fourth amendment
since
Mobile,
agent
it
where a DEA
as-
took
to
legitimate expectation
no
of
“Williams has
found on
certained that certain documents
privacy
the
of a merchant vessel.”
hold
the
indicated that
PHGH was
the vessel
Id.
although
legitimate
Mobile
the
bound for
As
the “reasonable
Peru.
cargo was destined for
suspicion”
applied
standard that
the
trial,
the court found
bench
After the
(seizure)1
stopping
initial
the
on
of
PHGH
import
conspiring
guilty
Williams
seas,
panel
the
the
on
high
relied
United
appealed his convic-
marijuana. Williams
Brignoni-Ponce, 422 U.S.
95
States v.
tion, contending: (1) that the
court
district
2574, 45
607 (1975), Terry
L.Ed.2d
v.
S.Ct.
person
jurisdiction
Williams’s
lacked
over
Ohio,
U.S.
S.Ct.
L.Ed.2d
illegal; (2) that ven-
his arrest was
because
involving
(1968),
and other cases
the
(3)
improper;
court
in the trial
ue
searching of
stopping
possible wrong
over
jurisdiction
trial
lacked
the
court
doers
land.
that we
on
For reasons
shall
overt
occurred within the
crime since no
act
below,
panel
discuss
think that
we
(4) that
jurisdiction;
court’s territorial
have
these
should not
assumed that
cases
authority to board and
United States lacked
apply automatically to a seizure
seas;
a
search
seas;
panel
attempted
should the
nor
(5)
the search and seizure violated
to define in the abstract
minimal consti
the fourth amendment.
governing such sei
requirements
tutional
however,
acknowledge,
that the
zure. We
panel’s errors were understandable ones be
II
prece
our
state of
cause of
muddled
6,1979, panel
this court
February
On
dent.
arguments
dismissed all Williams’s
conviction, United States v.
affirmed his
For
Fifth Circuit cases
example, some
1979).
Williams,
(5th
Al-
curiam);
Postal,
United
v.
States
589 F.2d
suggestion
that a
vessel is entitled
(5th Cir.),
denied, — U.S. —,
cert.
any greater
protec-
fourth amendment
(1979);
S.Ct.
L.Ed.2d
United
tion than an American vessel.
Warren,
(5th
5. Were we to hold that
courts had
petty
may
officers
and
at
issue warrants for searches on the
to
any
go
any
time
on board of
vessel
seas,
high
problem
remain the
there would
jurisdiction,
operation
any
the
law,
or to the
particular
which district court should issue the
States,
inquiries
address
problem
perplex-
would be
warrant. This
more
board,
ship’s
those on
examine the
docu-
ing
agen-
where the law
a case
enforcement
examine, inspect,
papers,
ments and
and
and
cy wishes to search a vessel at
one of
necessary
search the vessel
use all
and
force
points
equidistant
innumerable
at sea that are
compel compliance.
from two or more districts of
same or
different circuits.
1581(a)provides:
8. Section
Any
6. As
banc court observed
the en
in United
officer of the customs
to in-
[defined
Warren,
The two-part “[W]e structure Su Congress need whether conceived not decide preme Ramsey Court’s analysis implies in necessary precondition as a the statute a that warrantless seizure search in or validity of the search or whether it was complete authority absence of lawless —a viewed, instead, as a limitation on otherwise governmental intrusion—is unconstitutional at existing authority of the Executive.” Id. per se. If it possible were an unauthor im- 1978. This statement ized seizure or search to be reasonable in a plies that if the Court had found no statuto- sense, fourth presence amendment then search, ry authority for the would absence authority merely or be would a considered whether there existed some oth- factor to be considered the court in er of authority, source such as executive assessing reasonableness; instead, Ramsey authority. poses issue of authority as threshold words, determination. In other if the Analysis B. Outline of point Government can to no for a accordance with our Ramsey, In challenged seizure, search or a court must analysis the search and seizure issues conclude, any without further considera first, IV(A) this case focuses in Part
tion, that the search or seizure was uncon opinion, question Coast whether the hand, stitutional. On the other if it can be statutory authority Guard had to seize and established that the seizure search or search the PHGH. We conclude that authorized, the court then determine must might statute have authorized seizure, whether the search or as authoriz 89(a), seizure is section and that section ed, was meaning reasonable within the of 89(a) authorizes Coast Guard to seize fourth amendment. vessel international if the waters reasonableness of warrant- Coast Guard first has a suspicion reasonable less, authorized, but search seizure must engaged those aboard the vessel are through govern assessed weighing a conspiracy smuggle contraband into policies mental served the search or sei- grounds United States. Since for such rea- land, Ramsey permits 10. Since involves a search we tous take into consideration the sub- Ramsey’s holdings do consider automati- stantial differences between seizures cally Rather, applicable present case. in the searches on land and those on seas. analysis, Ramsey’s we follow which mode of hypo- not have violated of Williams’s present in the suspicion existed sonable rights. Implicit case, 89(a) the seizure thetical fourth amendment authorized section 89(a) im- of rea- terms of section in this conclusion that the existence the PHGH. The the search requirements restrictions on satisfied the pose no sonable pursuant seized holding that has been is our of the fourth amendment *12 Therefore, 89(a) also au- section statute. requirement search warrant does that the the PHGH’s hold. search of thorized the the one in this apply to searches like however, con- out, that Panama’s point We question whether case. We reserve the authorization provided sent would have search, to Pana- pursuant conducted such even in the absence seizure the search and consent, alone, consti- would have been ma’s authority. any statutory of tutional. IV(B) address the second Part we In we IV(C) opinion, of the Finally, in Part Ramsey analysis question of the —whether any consent had consider whether Panama’s authorized, search, although the seizure interna- rights on Panama’s under effect con- amendment. We violated the fourth jurisdiction any effect on the tional law or 89(a) the section IV(B)(1)that clude in Part try courts to this federal of United States PHGH, suspi- reasonable of the seizure hold, first, that consent case. We Panama’s constitutional, cion, that reasonable but was any of of Panama’s constituted a waiver may well not be the minimum suspicion challenge to rights international law under constitutionally Congress standard and, in this case the Coast Guard’s actions govern seizures like have enacted to could second, that even if the seizure and search We also raise the the one in this case. flag vessel had violated of the Panamanian have satis- that the seizure would possibility law, would not international the violation amendment if it had been fied fourth jurisdiction or re- deprive federal courts of no authorization other conducted under exclusionary quire application of the than Panama’s consent. rule. IV(B)(2) concerns the constitutional- Part the hold ity the Coast Guard’s search of of IV The discussion indicates that of the PHGH. had no fourth amend- probably Williams Statutory Authority A. privacy anywhere interest hold ment 89(a) authorizes the Coast Section no certainly could have had and that he any stop (seize) and board vessel Guard to the hold interest in those sections of
privacy
seas,
vessel is
high
long
so
as the
on the
plain
be in the
view of one
that would
jurisdiction,
opera
or to the
“subject to the
administrative checks.
conducting certain
law,
United States.”
any
tion of
assume, arguendo, that Williams did
We
statute,
89(a). The
which has been
U.S.C.
cognizable privacy
§
interest in the
have some
(1)
constitutional,
v. One
United States
held
where the
of the hold
Coast Guard
area
Vessel,
Sailing
[T]here
*18
beyond
tween a landlocked vehicle and a nautical
the twelve-mile
American vessels
safety
limit for routine
and documentary tional doctrine of international maritime
g.,
Warren,
is,
checks. E. United States v.
right
approach
law—that
or the
1058;
(1)
F.2d
United
v. One
States
Foot
right of visitation.
See
States v.
694;
Vessel,
Sailing
Postal,
right
Fifth Circuit cases have further indicated Under a well-established rule of interna- the fourth amendment doe's not re- law, tional Right known as the Ap- quire that the Coast authority Guard’s proach, the cutter authority had the seize a vessel on the seas be derived up sail to the unidentified vessel to as- from a statute.21 One alternative source of certain her nationality. . . . authority [The is international law. For exam- justifiable Coast suspicion had ple, Guard] article 22 of the Convention on the that the was attempting to Seas, [seized vessel] High provides, part, as follows: conceal identity its and activities. Under 1. Except where acts of interference circumstances, these boarding powers derive from by treaty, conferred registration vessel to search papers or warship which a foreign encounters mer- other identification was not unreasonable chant ship justi- seas is not for Fourth purposes. Amendment fied in boarding her unless there is rea- Id. at ground sonable 110-11. suspecting: (a) ship engaged That the is piracy; agree We with the panel Cortes or that a boarding pursuant of a vessel (b) That ship engaged in the (c) subsection despite constitutional trade;
slave
or
fact that
the source of the Coast Guard’s
That,
(c)
authority is a
though
non-self-executing
flying
treaty
flag
rather
refusing
is,
than a statute.
flag,
ship
to show its
See United
Postal,
reality,
(c)
'1083 Smuggling Intoxicating Prevention of of the statute or other source of authority that 23, 1924, Liquors, Jan. United States-Great permitted said to have the seizure. Sec- Britain, II, (1): 1761 art. Stat. 89(a), tion source of for the PHGH, Coast Guard’s seizure of Majesty agrees
His Britannic that he re- objection quires boarding will raise no to the of that the Coast Guard have a reasona- private flag vessels under the British out- suspicion ble engaged, vessel is as by side the limits of territorial waters case, drug smuggling in this or some States, authorities of the its terri- activity making subject other oper- possessions tories or enqui- order that ation of the laws of the United States. See may ries be addressed to those on board supra. provision This pp. 1075-1076 of and an ship’s examination be made of the 89(a) section is reasonable within the mean- papers for the purpose ascertaining of ing only of the fourth amendment if the whether the vessel or those on board are governmental interests that the provision endeavoring import imported or have protects outweigh private interests that beverages alcoholic into the United adversely are affected. The identity and States, its or possessions territories in vio- substantiality governmental of the in- lation of the laws there in force. When terests being depend on which advanced enquiries such and examination show a reasonably federal law the Coast Guard sus- ground suspicion, reasonable a search pects subject a vessel to be to when it is of the vessel be instituted. present case, seized. In the the Coast We have no doubt that the suspected seizures au- Guard those aboard the treaty thorized this were constitutional process were in the violating PHGH fed- though treaty even did not have the eral narcotics laws. The United States ob- history right venerable approach. viously has a vital interest in preventing Again, the treaty specifically was drawn smuggling illegal narcotics into the advance a valid interest of the United country apprehending and in those who prevention States —the smuggling of li- may reasonably suspected violating quor; the treaty appeared to be necessary the criminal narcotics laws. laws; prohibition to enforce the the autho- Furthermore, the seizure of a nau limited; rized reasonably intrusion was very tical vessel is a limited and foreseeable the legitimacy provision was admit- Certainly, any intrusion. those aboard ves ted the sovereign whose vessels were to sel in know that the international waters be searched. subject vessel will be to a seizure for a analysis Our indicates that a for any customs check in the absence of kind of eign sovereign’s less formal authorization of under section 1581 time the a minimally intrusive seizure of one of its vessel ventures into American customs vessels on the purpose seas for the pursuant waters.22 a seizure to sec Such permitting protect the United States to its tion 1581 is constitutional for the reasons satisfy interests would the fourth amend Freeman, set out in United ment even in the statutory absence of au F.2d at 946-47. Even those aboard for thority. Had there statutory provi been no eign vessel in waters must international PHGH, sion for the seizure of the Panama’s expect pursuant the vessel to be seized consent, think, may we well have been a High article 22 of the on the Convention constitutionally adequate authorization for ground Seas when there exists a reasonable the seizure. suspect agree certain facts. We with Cortes, 110-11, bearing factors reasona United States v. bleness of the seizure of a vessel on the within the article is reasonable high seas can be light assessed of meaning of the fourth amendment. always it is foreseeable
22. Of course a vessel to a similar customs seizure when it enters nation’s customs waters. 1084- *20 89(a)’s provision permitting Any Congress time foreign
Section
or a
seizure,
waters,
sovereign
in
authorizes a
international
of a
warrantless
seizure
vessel,
courts,
of a
applying
in
foreign
suspected to be
in
the ex
involved
rule,
clusionary
will
upon
be called
to look
federal narcotics laws
the violation of
is at
to the terms
history
and to the
provisions
least as
as the
reasonable
judge
to
its constitutionality.
In
seizures of vessels set out in section 1581
making
judgment
this
a court will use the
and article 22. Under
the facts of the
standard,
“reasonableness”
applies
which
to
case,
present
suspicion
the reasonable
stan
But, contrary
land and sea.
panel’s
89(a) gave
dard of section
those aboard the
suggestion,
the substantial differences be
degree
protection
PHGH the same
vehicle,
tween a vessel and a landlocked
see
gives
subject
article
those aboard vessels
Freeman,
building,
F.2d at
per
or
to
provision.
seizure under that
We think
preclude
son
any assumption that
the cases
governmental
interests that are
defining what
is reasonable on land auto
protected by seizures like the one in the
matically
question
control
of what
present
important
case are as
as the inter
reasonable on
seas.
ests that article 22 seeks
protect,
to
so it
follows that
the seizure of the PHGH is
2. The Search
pursuant
constitutional
if a seizure
to arti
panel
disposed of Williams’s
cle 22
89(a)
would be.
obviously
Section
challenge to the Coast Guard’s search of the
gave greater protection to
personal
in
hold of the PHGH as follows:
terests of those
aboard
PHGH than
We hold that
legitimate
Williams has no
permits
section
which
seizures without
expectation
privacy
in the hold of a
suspicion, gives
modicum of
to the inter
merchant vessel. The cargo of a mer-
ests of those aboard vessels in customs
chant vessel is
to inspection when
time,
waters. At the same
country’s
this
port
leaves a
and when it returns to a
seizing foreign
interest
vessels in inter
port. Certainly, no crew member could
national waters when the vessels are rea
privacy
assert a
cargo
interest
in a
area
sonably suspected to be involved in the vio
subject to these inspections.
lation of federal narcotics
clearly
laws is
as
Williams,
United States v.
just boarding before the Coast Guard’s indi- tiny that would be by modern standards. probably engaged cated that the vessel was however, Presently, the seas teeming are in smuggling might and that contraband vessels, pleasure with ocean liners that still be on logical board. hold was the carry passengers cargo, huge and little place for the Coast Guard to seek contra- merchant vessels with dozens of containers band of quantity they suspect- the sort and cargo multiple holds. ed. We have no doubt that these facts conditions, Despite changed these provide grounds for at least a reasonable recent cases have assumed that the Coast suspicion that the PHGH carried contra- may or day Guard customs officers to this band in its hold. constitutionally conduct a customs search of In our discussion of the Coast a vessel in territorial waters without statutory authority, Guard’s we held that See, suspicion g., of criminal e. conduct. 89(a) provides section for searches of vessels 1287, Ingham, United States v. 502 F.2d complete in the absence of (5th 1974), denied, 1291 Cir. cert. contraband evidence of criminal conduct 911, (1975). 43 777 S.Ct. L.Ed.2d particular place will be found in the to be Extensive customs searches territorial Therefore, 89(a) clearly searched. section universally thought legiti waters are to be authorized search of the PHGH’s hold mate; protect important such searches an reasonably suspect where the Coast Guard prevention smug national interest —the they ed would find contraband. As United gling; smuggling activities almost would be Ramsey, at U.S. S.Ct. searches; impossible to without such detect 1978, teaches, inquiry our next is wheth people crossing into a nation’s territorial search, nevertheless, er violated the searched; they likely waters know are to be fourth amendment. they and vessels are searched because
When the first customs statutes belong morally were en- to a neutral class. See Stanley, acted in 1789 and well have United States v. reasonable, denied, meaning 1976), within the
been
cert.
U.S.
amendment,
Congress
fourth
to have S.Ct.
waters was constitutional because the suspicion.” in article to mean “reasonable exigent probable existence cause and cir- of that a “self-executing” be in the sense treaties, not the Government would of its ty be, legal- would affect the request. treaty might addi- not such a In submit to probably out, constitutionality the or of the Coast Guard’s tion, pointed ity as the court in Cadena not affect the court’s might violated itself and would treaty that has been actions Postal, jurisdiction. United States reparation: for provide U.S. at 884. law, if international The violation of remedies may other any, be redressed sug Finally, we reiterate Cadena’s the of upon granting depend and does not of law gestion that a violation international immunity effective what amounts to an a violation of the Constitu that is not also safeguard to prosecution from criminal exclusionary rule not call for the tion would police or armed forces against individuals suppress any to evidence applied to 22 of the Conven- misconduct. Article of violation. Unit obtained as a result the tion, right to example, specifies for the Cadena, p. see ed F.2d at damages as a compensation for suffered We think the supra. deterrent consequence its violation rule is ade purpose exclusionary at 1261. foreign right quately served object Panama, sovereign any prosecution to to case, present
In the
a search or seizure that violated
country
registration,
the PHGH’s
founded on
Hubbart,
not a
to the Convention on
law. See Church v.
signatory
international
1.
High
1091
stop,
authority
with the
search
The
and seize
can do in connection
search
vessels
vessel, anywhere.2 The
any
and seizure of
registry,
they
of United
wherever
States
authority and the source of
Government’s
are,
foreign
and
vessels within United
upon
flag regis-
authority depend
waters,
subject
territorial
States
at the time
try of the
and its location
vessel
Fourth Amendment
restraints.5
stop.
seas,
foreign
high
As to a
vessel on the
authority
stop,
The
Government’s
however,
the source of the Government’s
board,
inspect, and search a United States
board,
authority
stop,
inquire,
inspect,
vessel,
located,
flag
wherever
is derived
seize,
search and
and the restrictions
governing
from the
vessels
federal
law
authority, are
limitations on that
found in
registry.3
law.6
international
authority
foreign
The source of
over a
Supreme
Court has never held that
flag vessel
in United
territorial
States
the Fourth Amendment
restricts Govern-
waters is the
law concerning
federal
vessels
foreign
ment action as to a
vessel on the
waters,
authority
territorial
as
such
high seas.
I would hold it does not.
might
State-
be modified
law
international
treaties.4
applies
ments that
the Fourth Amendment
(5th
1933);
(The
cause it was seized from
another
violation of
Cir.
Olson v. United States
Atlantic),
(2d
1933);
Fourth Amendment.” Alderman v. United
1092
Therefore
foreign
seizures of
vessels
violation of international
law.8
to searches and
v.
seas in Cadena
we need not determine whether a United
on
exclude
evidence
majority opinion
supported
are not
Court would
and the
States
obtained in violation of international
law.9
by
cited.7
rights
any argu-
consent
forecloses
There is a difference between
Panama’s
vessel,
protect
there was
and those which
by
ment
this defendant
accorded
tackling
majority opinion agrees
7.
the difficult constitutional
8. The
with this
Before
majority perceives
questions
es,
McGowan,
this case rais-
premise
516
1090. Cf. Waits v.
asserts, “Certainly,
203,
(3d
1975) (In
a seizure and search
F.2d
208
n. 9
case of
&
Cir.
foreign
extradition,
of a
is .
protection
[on
seas]
international
available
Majority
to the fourth amendment.”
person
primarily
to extradited
for benefit
exists
opinion
support
at 1078. In
of this statement
nation,
asylum
precluding
person
extradited
Cadena,
majority
cites United States v.
585
raising
rights
by
from
violations of
afforded
(5th
1978).
F.2d 1252
Cir.
Cadena cites the
demanding nation);
Gengler,
United States v.
following cases.
62,
(2d Cir.) (“[A]bduction
510 F.2d
68
from
Winter,
In United States v.
LaFave,
persons
10-8(f)
crossing
Searches of
or vehicles
Search and Seizure §
our
(Supp.1980); Note,
boundary
international
“are reasonable
High
Drug
on the Seas:
Smuggling,
Amendment,
simply by
they
virtue
the fact that
occur
the Fourth
border,”
Sea,
at the
Ramsey,
Warrantless Searches at
93 Harv.L.
United States v.
606, 616,
(1980).
3,987
1972, 1978,
Rev. 725
Most of the nation’s
431 U.S.
97
52
S.Ct.
617,
miles of
unpat
border with Canada are
L.Ed.2d
626
A border search
rolled and unmarked. Our border with need not be conducted at the literal bound-
Conceding
problems
Warren had left doubtful whether
the fourth
law enforcement
beyond
may
land,
greater
privacy
amendment
reached
our coast. Not
on sea than on
Cadena,
opinion
may
until
in United States v.
interests likewise
be more substantial. As
(5th
1978)
observed,
previously
“[tjhe ship
unequivocally
scope.
ap-
hardly
expectation
find that
One of the
sailor’s home. There is
parent purposes
majority opinion,
privacy
see n.
even in the curtained limousine or
10,
every
stereo-equipped
is to disavow Cadena’s statement
van that
mariner or
applies
yachtsman expects
fourth amendment
alike on land and
aboard his vessel.” United
Cadena,
(5th
sea.
States v.
588 F.2d
101
1979).
may
Although
It
be searched.
territory;
be border.
States
ary of United
zone
seaward rather
equiv
contiguous
extends
that is the functional
place
made at a
limit, it
border,
landward
the three-mile
example, at the
than
from
alent of the
equiva-
country
be considered the functional
ship
in this
should
place where a
docks
beyond our bor-
foreign port, United lent of the border. Land
to a
having been
after
(5th
regarded
not been
as the function-
Prince,
Cir. ders has
v.
for this would
country,
equivalent
how
the border
airport in the
al
1974),
domain;
sovereign’s
inland,
flights
on another
international
encroach
far
where
ever
however,
the seas and the
land,
Ivey, 546 F.2d
nature of
United States
denied,
policy
between the
(5th
97 S.Ct. historic
differentiations
Cir.), cert.
431 U.S.
waters
international waters
contiguous
(1977);
53 L.Ed.2d
Cir.), cert. de
of border search
Brown,
warrants
extension
1097
Ohio,
1,
88
Terry
law enforcement officers. See Dela-
activity.
v.
392
vidual
nal
U.S.
Prouse,
1868,
648, 662,
ware v.
(1968). Roving
tioned at fixed
established
Therefore,
vessel, foreign
if a
or domes-
United States
violations,
prevent border
tic,
shores,8
even
approaching
though
our
Martinez-Fuerte,
S.Ct.
U.S.
waters,
it still be on international
(1976),
rou
although
course an of such reasonable sus- warrant the with cer- conclusion reasonable picion smuggling illegal or tainty other activi- that there has been border cross- arises, may “investigate ing, ties the officer may proba- not be searched without provoke suspicion. circumstances . -exigency-or-warrant. ble-cause-cum In waters, may question however, vessel’s occupants] these the government [H]e [the ,. may explain and he them to may ask make the stopping lesser intrusion of suspicious circumstances, any but boarding further the vessel for administrative inspection detention or search must be based con- the principles on on above. discussed probable sent or cause.” United States v. D. HIGH SEAS10 Brignoni-Ponce, 873, 881-82, stop subsequent Unless the action is 2574, 2580, S.Ct. L.Ed.2d justified administratively principles above, C. TERRITORIAL vessel, WATERS set forth no foreign or domes- tic, may be while it is within the territorial or searched is on waters If vessel zone, waters, is, the contiguous beyond and the evidence does not outside inland leagues port to searches in or within four early tions of the coast contained in the new 31. statute 10. The customs and Coast Guard majority appear cited support not to me do ' event, early proposition search In neither of these seas requires ear- the conclusion that first stat- authorizations search is reasonable. The customs suspend ute, 31, 1789, ly July Congresses the fourth c. were wont Act of Stat. Indeed, offi- authorized searches of vessels cers customs in customs matters. amendment limitations they suspect” “reason to when had fit into cur- in both statutes them goods jurisprudence. that vessel. concealed aboard dutiable were au- fourth amendment rent thorization limiting easily I cannot so read upon to sus- of searches “reason language suspect” statute “reason to out may pect” explained either as a border Lasson, majority do. as the History chooses to Cf. N. search, port, search is in as a when vessel Development Fourth exigent plus probable circumstanc- with cause n.17, n.57, (1937) 71-72 Amendment 54 es, waters is in international when general (portraying of assistance use writs permit (assuming Congress even intended to searches as factor con- custom of vessels searches). for searches such The authorization Moreover, Revolution). tributing to American waters, contiguous both in the territorial and Congress intended that it is not certain that the States, to vessels bound for limited port. apply to searches outside statute to analysis fairly search into a border fits treats the Service, the fore- the Revenue Cutter Since contiguous zone and territorial Guard, yet been the Coast had runner of equivalents border. functional waters as authorized, Congress have be- *33 times, pleasure proliferation the of In modern at it would occur lieved the searches places authorized question of of ves- makes the searches vessels landing, ships such were searches where difficult, waters within the territorial more sels easily into a search rationale. would fit boarder may the never have crossed since those vessels analysis Congres- support Lending is the to this border; however, analy- does not alter the that later, authorization, year Rev- of the sional enue Cutter one statutes, merely early the customs it sis of requires 4, Service, 1790, August ch. Act of analysis of that fourth amendment 35, Act, ally 48, 145, 164, (1790). 31, That Stat. 170 1 §§ today more be searches in the territorial waters more effectu- “An Act to Provide entitled carefully congressional statutes defined and by imposed duties for the collection of the narrowly they in were than more formulated imported goods, law on wares and merchandise and 1790. 1789 States, tonnage the of and on into the United foreign from of American vessels Freedom prob- ships was at customs or vessels” directed principle stopping boarding was cardinal Congress’s early of the view lems and clarified the problems. early foreign policy. 1812 war of of our The power United States to combat those of the fought large part it. See in to vindicate was provided for a new authorization It 1, 1812),reprint- (June Message War Madison’s any [port] agents ships “in and search to board Commager, American H. Documents of ed in History States, leagues [the or within four of United contiguous 1963); (7th generally H. see 207 ed. of the zone and territorial waters] Wish, Contemporary Ed. America 192-93 thereof, if bound to the United States.” coast Even 1966). as as well Viewed in historical context possible is not to assume if it terms, major- cited in literal statutes pursuant act to the earlier would searches not, view, my support proposition ity do port, solely the reenactment occurred viewed the framers of the Constitution provisions as 48 of the 1790 of that act search constitutionally per- seas as search suspect” suggests lan- Act “reason Hubbart, g. See e. missible. Church Otherwise, meaning. guage the broader had 187, (some (2 Cranch) (1804) limit- 249 2 L.Ed. completely supercede limita- 48§ would limit, hesitate, too, probable high seas. Yet they twelve-mile without to assert exigent may It is as that a warrantless search be made of cause and circumstances.11 private places, they inquire not government unconstitutional officials to do into be, the source of the warrant to search cabins search such a vessel as it would even proce- and footlockers. I do government, not view the foreign with the consent of a dural provisions of the Federal of Rules intercept mail destined for United limiting Criminal Procedure as the inherent abridge it arrives or to consti- States before powers of United States courts to issue see soil, Raffel, rights foreign tutional 712; Raffel, supra See warrants. Abroad in the Feder- Searches Seizures Co., Telephone v. New York (1979); see also Courts, U.S. al 38 Md.L.Rev. 689 14, 168 n. 370 n. Covert, Reid v. U.S. S.Ct. L.Ed.2d 376 Zuckert, Powell (1957); L.Ed.2d 1148 (D.C.Cir. 1966). F.2d 634 Our Fifth precedents Circuit are erratic carefully because we have not steered the cases, probable In most cause alone would constitutional course. When a case or con- suffice, in fact for the location and nature troversy requires application fourth exi- usually vessel make circumstances principles amendment to vessels off our gent: possibility there is the evident shore, established constitutional rubric that, might jettisoned evidence even way provides makes our clear and the cor- though guns, an at- under Coast Guard fuzzy precedents. rect means to clear our tempt might be made to flee. Absent these warrant, aor the fourth amendment is vio- ANDERSON, R. LANIER Judge, Circuit lated if a vessel is searched on the specially concurring: My seas.12 brethren balk at the mention of Congress a warrant on the basis that has I concur in the result reached of a majority, authorized issuance warrant on the but for different reasons. I find right may be exer- plane registered. right approach, ed cised to search vessels or a however, coast.) up leagues permit to four from The limi- examination of does not an placed persons tations on such searches were too clear- or a search of the aboard ly However, they support defined for that. do vessel. proposition that vessels bound the Unit- majority concerning express opinion 12. The no contiguous ed States which cross the zone or justify required “private what is search of though territorial waters be treated as distinction, areas” in a vessel. If there is a they Historically, had crossed a border. those can be drawn expectation on the basis of reasonable recognized areas of the sea have been as border Therefore, privacy. I do not equivalents. supra See note 7. party understand the reservation. objects If the who hardly necessary point that, It is out expec- to the search has no reasonable protection of the fourth amendment cargo private, largely tation that in the hold is he has person’s limited to a home and the standing suppress cargo curtilage no the use of that as protected and that both the areas expectation scope If he expectation privacy evidence. privacy has a reasonable of reasonable and, therefore, vastly standing have since been disregard to contest the extended. We cannot search, validity all of the then the failure to con- fourth amendment deci- *34 years adopt validity sions of the last 60 sider the of a search of his cabin or interpretation greater offshore waters.the the fourth the basis of a footlocker must expectation might given amendment privacy have been in 1789. there. It does not seem justified ranking to me that we are expectations. these require 11. International law will in some cases right modification of the of law enforcement possibility The other is that the reservation stop, officers to board or search ves- per greater not, however, se of based on the reasonableness scope sels. This does affect the searching If this is a Foreign of subject the hold of a vessel. the fourth amendment. vessels are majori- right proper interpretation part approach, of this that is the right ty opinion, inquiry stop of United States it leads to the whether the vessels to the for- eign merely See, verify flag. necessary g., its warrant can be obtained for e. search areas, Flora, (11 Wheat) 1, 43, private Marianna search more intrusive (1826); Cortes, majority L.Ed. question United States v. that the find answerable (5 1979). required. by assuming This is analo- that a warrant is never gous determining whether a United States I do not think the Constitution is measured registry properly vessel is documented or way an Congress provided whether has a valid properly displaying plates automobile is license comply with it. in this the Coast Guard actions of
that the 89(a) by §
case were authorized Fourth I find no consent.
Panama’s because there was violation
Amendment board, and search stop,
probable cause vessel, the circumstances and' because I, therefore, reach the do not exigent.
were by my brothers. discussed
other issues al., Michael et
Robert DAVIS
Plaintiffs-Appellees, al., et
Lewis WILLIAMS
Defendants-Appellants.
No. 77-1299. Appeals, Court of
Fifth Circuit. May Rorschach, Atty., John W. City J. Don McGrath,
Chandler, City Asst. Robert S. Tex., defendants-appel- Attys., Irving, lants. Dallas, Tex., Baron, M.
Frederick plaintiffs-appellees. C., Washington, D. ami- Wolly,
Michael S. cus curiae. COLEMAN, Judge, and
Before Chief AINSWORTH, GODBOLD, BROWN, RO FAY, NEY, GEE, TJOFLAT, HILL, RU BIN, VANCE, KRAVITCH, M. FRANK GARZA, HENDERSON, JOHNSON, Jr., POLITZ, HATCHETT, REAVLEY, AN DERSON, RANDALL, TATE, D. SAM *35 CLARK, A. Cir and THOMAS JOHNSON Judges.* cuit * participate Judge Goldberg therefore does not in this decision. was a member of the en banc participate 46(c) partici- Judge did not in the Charles Clark court under 28 U.S.C.A. pated argument consideration or decision of this case. in the oral of the case en banc. Since that time he has taken senior status and