UNITED STATES of America, Plaintiff-Appellee, v. Michael Gary WHITMIRE and Donald John Williams, Defendants-Appellants.
No. 77-5359.
United States Court of Appeals, Fifth Circuit.
June 4, 1979.
Jack V. Eskenazi, U. S. Atty., David F. Geneson, Jamie L. Whitten, Asst. U. S. At-tys., Miami, Fla., for plaintiff-appellee.
GEE, Circuit Judge:
A district court, sitting without a jury, convicted appellants Michael Whitmire and Donald Williams of possession of marijuana with intent to distribute, a violation of
The Ninth Circuit has held that a district court may not enter an order contrary to a magistrate‘s recommendation on a referred evidentiary matter without itself holding an evidentiary hearing. United States v. Bergera, 512 F.2d 391 (9th Cir. 1975). Appellants would have us not only espouse that position but extend it to hold that a district court cannot even adopt a magistrate‘s recommendation without holding a duplicate hearing. They argue that due process of law requires the trier of fact actually to hear the relevant testimony and assess witness credibility. Whatever the merits of such a rule in instances where a district court chooses to ignore a magistrate‘s recommendations, a question we need not reach, it is not applicable here. The motion to suppress was referred initially to a magistrate, who recommended that it be denied. After giving counsel an opportunity to object to the magistrate‘s conclusions and reviewing the record, the district judge adopted those findings and recommendations. The magistrate had a firsthand look at the witnesses and appraised their credibility. The trial judge retained the power to hear additional testimony or the same testimony all over again if he decided that would be beneficial in determining the motion. As the Supreme Court has said in a related but nonconstitutional context:
The magistrate may do no more than propose a recommendation, and neither § 636(b) [of the
United States Magistrates Act, 28 U.S.C. §§ 631 -639 ] nor the General Order gives such recommendation presumptive weight. The district judge is free to follow it or wholly to ignore it, or, if he is not satisfied, he may conduct the review in whole or in part anew. The authority—and the responsibility—to make an informed, final determination, we emphasize, remains with the judge.
Mathews v. Weber, 423 U.S. 261, 270–71, 96 S.Ct. 549, 554, 46 L.Ed.2d 483 (1976).
In the 1976 amendments of the Magistrates Act, Congress enumerated some additional duties that may be assigned to magistrates and clarified, along the lines suggested in Weber, the weight a district court may give to a magistrate‘s various findings and determinations. Subsections
Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.
These procedures provide sufficient safeguards both to ensure the integrity of the factfinding process and retention by the judge of final responsibility for ruling on the motion. Indeed, the factfinding process may be improved by the referral practice. In making a final determination, the district court has the benefit of a carefully developed record, a magistrate‘s thoughtful consideration of the issues, and argument of counsel regarding specifics not agreeable to the parties. See Weber, 423 U.S. at 271, 96 S.Ct. 549. We conclude that appellants’ rights to procedural due process have not been violated.1
Around 8:00 a. m. on December 23, 1976, two customs officers were on marine patrol in a Dade County, Florida, intercoastal waterway. They observed a 25-foot Nova boat speeding at an estimated 40-45 miles per hour through Baker‘s Haulover Cut, an inlet connecting the ocean to the inland waterway. The boat was coming from the ocean side but was already inside the shoreline when the officers first sighted it. The day was unpleasant for boating: it was overcast, cold, windy, and the water in the cut was choppy. The speeding boat was producing a heavy wake. Each time it came down it threw up a large bow spray, higher than the boat top. To these experienced officers this indicated that there was something heavy in the boat‘s bow. They later testified that in the past year there had been about 25 similar cases of boats that size, “riding heavy in the bow, throwing excessive bow wake,” found loaded with marijuana. They observed two males aboard, and no fishing gear was visible. Considering all these facts in the cloudy light of the inclement day, the officers decided to stop the boat to investigate further.
Their boat, however, was too slow to catch the Nova, which turned north into the inland waterway and continued on at high speeds past a customs inspection station and through two “no wake” areas, a most egregious nautical sin. The officers followed and finally closed with the boat as it was being docked on a canal behind Whitmire‘s house. At this closer range the officers saw that the boat was encrusted with salt crystals such as might have formed during an extended ocean voyage. They also noticed that both Whitmire and Williams were wearing brand new orange sweatshirts with “BIMINI” printed across the chest.
Appellants had left their boat and were walking toward Whitmire‘s back door when the officers called to them, requesting to see their identification and registration papers. Whitmire helped the officers dock and then produced his identification and an unsigned boat registration made out to the Excellent Car Company; Williams could produce no identification. Thinking the boat perhaps stolen and still suspecting that contraband was aboard, one officer boarded the Nova to investigate further while the other watched the two men. As soon as the officer stepped down into the cockpit area in the center of the boat he smelled the odor characteristically referred to in these prosecutions, the “overpowering aroma of marijuana.” Opening the hatch, he saw over a thousand pounds of baled marijuana, the evidence appellants seek to suppress on fourth amendment grounds. The officers arrested the men and thereafter found an American Express receipt in Whitmire‘s wallet indicating that he had bought a large quantity of fuel in Bimini the previous day.
Several exceptions to the fourth amendment‘s warrant requirement are potentially applicable here: (1) border search, with its extended-border and functional-equivalent-of-the-border glosses; (2) a limited investigatory stop upon presence of reasonable suspicion of law violation under United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); (3) pure statutory authority—
The instant facts do not fit a border search analysis neatly, since we have consistently required some degree of probability that the vehicle/vessel has crossed the border.2 In water cases, the true border is an imaginary line three miles offshore. Though we have not required the coast guard or customs officers to observe the vessel as it crosses this imaginary line,3 our precedent generally has required that the officials have articulable facts from which they may reasonably infer that the boat has come from international waters.4 On our facts, the boat first was sighted inside the coastline and, for all the customs people actually knew, might have been on an early morning cruise up and down the intercoas-
There are also problems with justifying all the officers’ conduct on Brignoni-Ponce grounds. There the Supreme Court was faced with a simple investigatory stop of a vehicle and not a vehicle search such as had been condemned, absent probable cause or warrant, in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). The officers’ observations of the boat produced articulable facts and inferences amounting to reasonable suspicion that a load of contraband, carried over seas, was aboard. Under the Brignoni-Ponce test, therefore, they had sufficient grounds for a limited investigatory intrusion but not for a search or further detention. The officers were thus well within Brignoni-Ponce authority in pursuing the vessel and in approaching Whitmire and Williams for identification and registration documents. Their suspicions justifiably increased when the two were unable to produce proper documents, but, suspicious as these facts may have been, they did not amount to probable cause necessary to justify a search of the vessel. Probable cause did not accrue until after the officer boarded to search and smelled the marijuana. If the boarding for purposes of inspection or search is to be upheld, then, it must be on some other ground, despite the unfortunate circumstance that, had their boat been fast enough to have overhauled the Nova before it reached home and appellants had disembarked, the officers could have boarded the vessel—and thus smelled the marijuana—in the proper course of their Brignoni-Ponce investigation.
We must therefore explore the fourth amendment principles applicable when customs officers’ right to board and inspect or search a vessel rests solely on
Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters . . . and examine the manifest or other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.
We held in United States v. Freeman, supra, that section 1581 provided authority, reasonable under fourth amendment standards, for discretionary customs boardings for routine safety and document checks of any vessel within customs waters, a term defined by
A. Early Doctrine Regarding Boat Searches.
The earliest Supreme Court boat cases did not deal with fourth amendment issues explicitly. The Court seemed to assume that United States agents might approach, stop and board American flag and other vessels on the high seas. The debate, often in a context of who got the spoils, focused instead on whether there had been probable cause to seize the vessel and force it into an American port. See, e. g., Murray v. Schooner Charming Betsy, 2 Cranch 64, 6 U.S. 64, 2 L.Ed. 208 (1804); The Apollon, 9 Wheat. 362, 22 U.S. 362, 6 L.Ed. 111 (1824).6 Perhaps the explanation for this approach lies in the Court‘s early focus on property rights as a principle of fourth amendment exegesis. In Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), for instance, the Court enforced the fourth amendment by disapproving a court order directing a man to produce his books and papers to be used as evidence against him. The majority considered that order the equivalent of an unreasonable search for those personal effects. Contrasting such personal items with other objects of search, the Court stated:
The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man‘s private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo. In the one case, the government is entitled to the possession of the property; in the other it is not. The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government.
The first statute passed by congress to regulate the collection of duties, the act of July 31, 1789, (1 St. 43), contains provisions to this effect. As this act was passed by the same congress which proposed for adoption the original amendments to the constitution, it is clear that the members of that body did not regard searches and seizures of this kind as “unreasonable,” and they are not embraced within the prohibition of the amendment. So, also, the supervision authorized to be exercised by officers of the revenue over the manufacture or custody of excisable articles, and the entries thereof in books required by law to be kept for their inspection, are necessarily excepted out of the category of unreasonable searches and seizures. . . . But, when examined with care, it is manifest that there is a total unlikeness of these official acts and proceedings to that which is now under consideration. In the case of stolen goods, the owner from whom they were stolen is entitled to their possession, and in the case of excisable or dutiable articles, the government has an interest in them for the payment of the duties thereon, and until such duties are paid has a right to keep them under observation, or to pursue and drag them from concealment; and in the case of goods seized on attachment or execution, the creditor is entitled to their seizure in satisfaction of his debt; and the examination of a defendant under oath to obtain a discovery of concealed property or credits is a proceeding merely civil to effect the ends of justice, and is no more than what the court of chancery would direct on a bill for discovery. Whereas, by the proceeding now under consideration, the court attempts to extort from the party his private books and papers to make him liable for a penalty or to forfeit his property.
116 U.S. at 623-24, 6 S.Ct. at 528-529.7
In 1924 in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924), the Supreme Court reviewed these statutes, noting that none had ever been attacked as unconstitutional and stating that the Court had treated a subsequent version as operative in an earlier decision. Boat searches were not before the Court in Carroll, however. Nodding in the direction of the property concepts expressed in Boyd, the Court there validated the warrantless search of a car for contraband liquor that was subject to forfeiture or destruction. The customs statutes were cited to support the longstanding distinction drawn for fourth amendment purposes between dwellings and movable vehicles, since the latter might flee the jurisdiction before a warrant could be obtained. Though there was support for an additional distinction between boats and cars in the various statutes, the Court did not allude to one. Instead, the distinction between searches of those crossing an international boundary, where no probable cause was required, and searches of those “lawfully within the country, entitled to use the public highways” where interruption or search was forbidden absent probable cause, was seemingly extended to vessels as well. Because, however, the pronouncement as to boats was not necessary to the decision and because the facts that were deemed to constitute probable cause in that case would probably not support today‘s more lenient reasonable suspicion standard,10 Carroll
B. Toward a Balancing of Interests to Determine Reasonableness in the Boat Search Context.
Those who challenge customs or coast guard searches of boats regularly raise the
We commence by sounding the varying degrees of privacy one may reasonably expect aboard vessels.14 It is true that certain boats may be “home” to certain sailors,15 but that is not uniformly or invariably the case. The type of vessel and, as suggested in Rakas v. Illinois, 435 U.S. 922, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the particular area of it that is searched may be crucial in determining whether a sailor‘s expectations are reasonable. Relatively high levels of privacy might be accorded, for instance, to those aboard a houseboat17 or to the crew‘s living quarters on a tanker that travels for months at sea.18 By contrast it is difficult to see that a crew member might legitimately claim privacy on the open deck of a fishing smack or in the hold of a cargo vessel available for hire.19 A harder case to assess, reserved for another day, is the enclosed area of a yacht or large sailboat which might be in use as a living area during an extended cruise or might also serve as a mere cargo container on an illicit drug run.
The next factor to be examined is the degree of intrusion on protected privacy that is caused by the challenged governmental action. Pursuant to the generous section-1581 authority Congress has attempted to accord customs officers, the intrusion might range from a completely random stop routinely to check documents or safety equipment, through a limited inspection of potentially cargo-bearing cavities to
As a final observation in assessing the private interests to be balanced against the public interests discussed below, we note that though sailors on occasion live on their boats, no one lives in a fixed location out in the water. In contrast to the situation involved in extended border searches on land, recognizing relatively generous customs powers over boats does not create a permanent class of citizens who, solely because of where they live, are subject to greater intrusions than are other citizens. While those who venture out into customs waters and interconnecting waterways for business or pleasure may certainly lay claim to the right to proceed unhindered by unreasonable government intrusions, their claims are perhaps less weighty in gauging reasonableness than are those of citizens living near our land borders, with no choice but to use roads in making their daily rounds. In this connection, however, the locale of the detention and thus the frequency with which purely domestic traffic is halted may well bear on the scope of intrusion that is reasonable or on the degree of suspicion, if any, required to validate certain intrusions.
Turning to the governmental interests implicated in intrusions on vessels, it is evident that the major interest lies in executing congressional determinations under its “plenary powers” to regulate commerce with foreign nations.25 But the revenue and regulatory concerns of Congress in this area are not exhausted by application to vessels known for a certainty to have come directly from foreign ports. There is a valid governmental interest in determining whether a boat has come from abroad or whether it contains secreted dutiable goods.26 Moreover, the interest in monitoring exports also may necessitate inspections of vessels in the absence of border crossing facts.27
In addition to customs concerns, some interference with boats is also warranted by the national interests in regulating vessels that fly the American flag28 and in ensuring orderly travel under the navigation laws. Unlike border patrol agents, customs officers in patrolling our intercoastal and
spection or search because of the sea‘s vastness and the difficulty of locating objects traveling on it. Moreover, there are no roads in customs waters to channel the flow of incoming persons. Thus, customs agents have fewer opportunities than their land-based counterparts to establish “traffic checkpoints” and thus monitor entrants who fail to stop voluntarily at a customhouse.32
We have already judged it reasonable under the fourth amendment for customs officials to stop any vessel found in customs waters and board it for a document check and safety inspection.33 We have also found that, pursuant to their virtually identical statutory authority, coast guard officers may board American vessels on the high seas to do a document and safety check and look for obvious customs violations.34 On the other hand, we have re-
ure craft, sighted initially in intercoastal waters, as to which officers have a reasonable suspicion of a customs violation—a boarding that occurred after an unsatisfactory document check on shore. Applying the mode of analysis suggested above, we note that the area initially invaded—the cockpit of a 25-foot pleasure craft—is generally visible to those passing nearby. The privacy expected in such an area would be minimal. In addition, the two appellants were no longer aboard; thus the boarding infringed their privacy interests, as contrasted to their property interests, even less severely. The government interests being vindicated, on the other hand, were extremely important. The officers observed appellants flout traffic rules and possessed other facts leading them reasonably to suspect a customs violation and perhaps a theft. Though there was a chance, especially given the place of initial sighting in intercoastal waters, that appellants’ outing would turn out to be only a domestic journey, it was reasonable in light of those strong suspicions to detain the men pending a further brief inspection aboard, even absent known border crossing facts. We need not speculate whether their suspicion would also have justified a brief inspection of the closed hull cavity since, as soon as the boat was boarded, probable cause arose, fully justifying the more detailed search. If exigent circumstances be required, they were present as well. As the search was within statutory authority and was constitutional, its fruits were admissible in evidence.
III. Sufficiency of Evidence on Williams’ Possession Charge.
Having been acquitted on the importation charge, Williams argues that there is insufficient evidence to sustain his conviction of possession with intent to distribute. The evidence against him is not overwhelming, but we believe it sufficient when assessed under the relevant standard of review. We must view the evidence and all reasonable inferences arising therefrom in the light most favorable to the government, the prevailing party. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). We may not substitute our view of the evidence for that taken by the trier of fact since the test on appeal is whether the trier of fact might reasonably conclude that the circumstantial evidence relied on excluded every reasonable hypothesis of innocence. United States v. Sidan-Azzam, 457 F.2d 1309 (5th Cir. 1972).
The evidence indicates that Williams was observed in a 25-foot Nova, speeding into an inland waterway from the “ocean side” of a cut at 8 a. m. on a cold, wet day. He was positioned in the cockpit of the boat, a point at which the odor of the 1500 pounds of marijuana aboard was “overpowering.” He was wearing a soaking wet “Bimini” sweatshirt identical to that of Whitmire whose presence in Bimini just the day before was confirmed by a fuel receipt. He argues that his conviction should be overturned because “mere presence” or merely being a passenger in proximity to contraband is not enough to constitute constructive possession. See United States v. Ferg, 504 F.2d 914, 916-17 (5th Cir. 1974); Williams v. United States, 361 F.2d 280, 281 (5th Cir. 1966). We have also held, however, that where other circumstantial evidence, such as one‘s attitude, conduct or relationship to the driver, is sufficiently probative, proximity to contraband coupled with inferred knowledge of its presence will support a finding of guilt on such charges. United States v. Christian, 505 F.2d 94, 96 (5th Cir. 1974). In United States v. Canada, 459 F.2d 687 (5th Cir. 1972), we sustained the conviction of a passenger in a car found to have four large sacks of marijuana in its trunk during a border search. In addition to this proximity to the contraband and the defendant‘s “relationship” to the person driving the car, the sole additional evidence supporting an inference of conspiracy and marijuana transportation was the testimony of a border patrol agent, inconsistent with his own earlier testimony, that both defendants had told him that the marijuana had been crossed upriver from the port of entry. In United States v. Christian, supra, we concluded that the evidence that a woman was freely present on a boat for an eight-day sailing trip, during which time bags of
In the case at bar the trial judge could reasonably have concluded that the presence of such a large amount of marijuana in a boat the size of the Nova can hardly have escaped the attention of Williams. Moreover, the hour of their apprehension, their probable point of departure, their great speed to reach home port, and their flouting of boating regulations all contribute to the inference that Williams must have realized and shared the furtive object of Whitmire‘s enterprise. We find the evidence of his guilt sufficient.
AFFIRMED.
ALVIN B. RUBIN, Circuit Judge, concurring:
I concur in parts I and III of the opinion and in the result reached in part II. I agree with my brethren when they say, near the end of their opinion, “We need only decide whether the fourth amendment allows the boarding of a pleasure craft, sighted initially in intercoastal waters, as to which officers have a reasonable suspicion of a customs violation—a boarding that occurred only after an unsatisfactory document check on shore” (my emphasis). And I agree with their answer: The boarding and what ensued did not violate the defendant‘s constitutional rights. But I disagree respectfully with the necessity of the tacking and hauling by which they arrive at that point and many of the sightings they take along the way. Because these passages have potentially dangerous impact on fourth amendment rights, I think it necessary to set forth my own views on how the fourth amendment applies to official action on navigable waters lest its bulwarks be imperilled by the hazards of the sea.
My brethren assume at the outset that the fourth amendment protects seafarers as well as those who fly planes or operate vehicles or live on land. I would again emphasize what they only suggest before they turn to search the horizon for exceptions: those aboard vessels are protected by the fourth amendment, and no vessel may be stopped or boarded or searched except in compliance with its requirements. Without a warrant, law enforcement officers may not even stop, and, a fortiori, may not board or search a vessel unless the action is reasonable by fourth amendment standards.
With the fourth amendment as their lodestar, the majority then appropriately sail on to explore whether exceptions to the requirement of a warrant justify the actions customs officials took with respect to Whitmire‘s Nova. They correctly note that the border search doctrine, in limited or extended form, allows official searches without warrant and without reasonable suspicion. Subject only to scrutiny of the manner in which it is conducted, the search of people or things that cross our borders is “reasonable” for fourth amendment purposes even in the absence of probable cause or a warrant merely by virtue of the fact of border crossing. Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596, 602; United States v. Soria, 5 Cir. 1975, 519 F.2d 1060, 1063. Therefore, if an American vessel is known or reasonably suspected to have come directly from seas beyond the three-mile limit,1 the border search doctrine validates a complete search of the vessel even without a modicum of suspicion of wrongdoing. See, e. g., United States v. Ingham, 5 Cir. 1974, 502 F.2d 1287, cert. denied, 1975, 421 U.S. 911, 95 S.Ct. 1566, 43 L.Ed.2d 777; United States v. Lonabaugh, 5 Cir. 1973, 494 F.2d 1257. Here, however, as my brethren state, the customs officials could not
At locations other than the border and its functional equivalents, both stops and searches are subject to strict limitations. In Almeida-Sanchez, supra, the Supreme Court held that searches by border patrols roving on land must be premised on probable cause, and in United States v. Ortiz, 1975, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623, the Court struck down a border patrol search without a warrant or probable cause at a fixed checkpoint that was not the functional equivalent of the border. We have held the Almeida-Sanchez precepts applicable to customs authorities. United States v. Brennan, supra, 538 F.2d at 719. When we reach this point on our charts, we have reached the limit of permissible warrantless searches, absent the combination of probable cause and exigent circumstances. See, e. g., United States v. Cadena, 5 Cir. 1979, 588 F.2d 100 (on petition for rehearing); United States v. Weinrich, 5 Cir. 1978, 586 F.2d 481, 492-93. I emphasize the word “searches,” for government agents do have authority to take action less intrusive than a search without violating the fourth amendment.
Limited investigatory stops for routine document and safety checks without a warrant, or probable cause and exigency, have been held permissible.2 In United States v. Brignoni-Ponce, 1975, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607, the Court held that officers on roving land patrol may stop vehicles “if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion [of illegal activity].” 422 U.S. at 884, 95 S.Ct. at 2582, 45 L.Ed.2d at 618. We applied this principle to vessels in United States v. Williams, 5 Cir. 1977, 544 F.2d 807, where, however, we concluded that customs authorities had no power to board and search a houseboat moored at a marina four miles from open waters if there was neither any likelihood of a border crossing nor reasonable suspicion of any violation of law.
Finding no safe harbor in the border search doctrine, the majority abandon that tack and sail all too briefly with the Brignoni-Ponce doctrine. They conclude that the stop and interrogation of Whitmire and Williams were safely within the investigatory channel, but then retreat, finding no basis for boarding the docked vessel because the officers did not have “probable cause.” I do not see that probable cause to board is necessary if the officers had reasonable suspicion of wrongdoing, not allayed by initial questioning. An “investigatory stop” as applied to a vessel embraces both stopping and boarding it for a routine document and safety check, cf. United States v. Williams, 5 Cir. 1979, 589 F.2d 210, 214; the majority agree that, had the customs agents overtaken defendants’ vessel before it moored, a boarding would have been permissible. I cannot place the same significance as apparently do they in the vessel‘s newly assumed docked condition.
Here, within sight of shore, the majority turn back to sea and rely on the existence of “pure statutory authority” which, they assert, has been found “independently reasonable” for fourth amendment purposes as to “some searches on water” (emphasis supplied). I respectfully differ with them in this legal conclusion. The existence of a statutory provision such as
United States v. Freeman, 5 Cir. 1978, 579 F.2d 942, on which my brethren rely, did not uphold a search on the basis of
The different case is now before us, and I would conclude that, when a vessel is seen only on inland waters, and there is nothing to connect it with the border, customs authorities must have reasonable suspicion of wrongdoing to justify their intrusion on those enjoying this nation‘s waterways just as is required before land or air travellers are stopped and questioned. I do not think the craft‘s watery location of itself distinguishes a vessel from a land vehicle or a
My brethren attempt to minimize the intrusiveness of searches on the water by observing that “smugglers form the main class of sailors in whom the approach of . . . officers provokes anxiety.” The notion that only law-breakers need fear unlimited police action is at the root of all police state rationalization. The essence of the Bill of Rights is the protection even of wrongdoers. And those of us who have nothing to hide are guaranteed safety from the annoyance of intrusive police conduct even if it provokes only irritation and not anxiety.
Here, as in all the prior vessel search cases that have come before us, the search was successful; contraband was discovered. We have no way to know in how many cases vessels are stopped, the privacy of citizens is invaded, and nothing is found to be amiss. I would, therefore, strike the balance between individual privacy interests and governmental concerns differently from my brethren, at least when customs authorities have no reason to believe a vessel is returning from a venture beyond American waters.
The principles that I deduce can, therefore, insofar as they are applicable here, be simply stated: when a vessel is seen only on inland waters, the customs officials may search it without probable cause only if they demonstrate reasonable grounds to believe a border crossing has taken place; they may make a limited investigatory stop and boarding if they can articulate specific facts that, together with logical inferences drawn therefrom, reasonably warrant their suspicion of illegal activity.6 The search here was not a valid border search, but it was justified as an investigatory stop prompted by reasonable suspicion of law violation under Brignoni-Ponce.
This is where my brethren began. At this point I would have ended.