search by federal agencies?

[rwg3]

Having read the thread on consent to search and not wanting to hijack it, I am wondering about options that a person has when the authorities conducting the search are Federal? Once, pre-CHL, I was driving back from Canada and gong through customs I was "randomly" (having Texas plates and going through Michigan) selected for a vehicle search. I thought it would be no problem. My mistake. It turns out my wife had packed a paper grocery bag with caladium bulbs that we bought from a swim team fund raiser as a gift for friends up north. I forgot them in the back of the Suburban and went to visit relatives in Canada. I was sitting in the waiting area when I saw a whole group of customs agents surround the vehicle. One comes in and talks to the lead agent. He calls me over and asks me if I had anything to declare. Nope not me. Are you sure? Why yes I am. Shortly thereafter the paperbag comes out and it is time for more questions. Finally it came down to, can I prove that I bought them in the USA and had them with me all the time? It had been some time since we bought them and I din't have the receipt. I offered to call the swim team and have them verify the purchase but no go with that. They have an agricultural specialist on staff who came out and gloved up to examine the offending flowers. They were confiscated and I was finally allowed to travel on my way after dogs sniffed the truck and my stuff was grossly re-arranged.

When boating on waters patrolled by the Coast Guard they stop boats and board them to conduct "safety inspections" and other searches. They do not ask, but do tell you they are boarding. When the state or local police are on the water and stop they ask if they may board and can be reasonable if they are told no thanks. So if the right to refuse is constitutional, why are the federal authorities allowed to proceed without permission and the state authorities required to ask?

[anygunanywhere]

Good questions.

Those border customs inspections can be tough. I have been through quite a few and never really gave it much thought other than they are mostly a pain and totally arbitrary for the most part.

This will be an interesting thread to follow.

Anygunanywhere

[AEA]

Humm.....Just my opinion......

Your Constitutional Rights mean nothing when you are outside the USA. You are not actually back in the Country until you are cleared in at the border. So, their search is not a violation of your Constitutional Rights since your are not legally in the Country yet.

With regard to Coast Guard "Safety Inspections".......that is exactly what they are. They do not go thru cabinets, luggage, whatever looking for dope. If there is dope or something else illegal in plain sight, laying around, they will act on it. But basically, they are there for the Safety aspect.

With regard to other Federal searches within the US......
They usually come with the Warrant in hand.

I won't comment on Local/State Agency's. Other than to say they do what their Chief tells them to. There are of course some "Rogues" and they do what they want to .......till they get reported enough to get fired.

[anygunanywhere]

Humm.....Just my opinion......

Your Constitutional Rights mean nothing when you are outside the USA. You are not actually back in the Country until you are cleared in at the border. So, their search is not a violation of your Constitutional Rights since your are not legally in the Country yet.

With regard to Coast Guard "Safety Inspections".......that is exactly what they are. They do not go thru cabinets, luggage, whatever looking for dope. If there is dope or something else illegal in plain sight, laying around, they will act on it. But basically, they are there for the Safety aspect.

With regard to other Federal searches within the US......
They usually come with the Warrant in hand.

Me thinks you are mistaken about rights and borders. I have seen instances where certain customs officers were having a bad day and certain citizens grew weary of their intrusion and stood up for themselves. I think a citizen's rights are secure at a border, that there has to be probable cause for a search, and that your 5th amendment right against self incrimination is in place. You do not have to answer all of their intrusive questions.

Anygunanywhere

[AEA]

You may be right.

But, there is the choice.......
You can comply or you can complain/whine.
I guess you could always turn around and go back where you were coming from, maybe not......

There is another choice. Don't leave the Country.

[anygunanywhere]

You may be right.

But, there is the choice.......
You can comply or you can complain/whine.
I guess you could always turn around and go back where you were coming from, maybe not......

There is another choice. Don't leave the Country.

The thought of travel at this point in time sickens me.

I determined that I was traveling too much when I was standing in line at IAH customs coming in from Mexico and knew other travelers by name who worked for other companies. One of the individuals and I had shared a table at a Chili's in Minneapolis-St Paul airport when I was on my way to Canada.

I have to go to Louisiana next week and I dread that.

Anygunanywhere

[Dragonfighter]

You may be right.

But, there is the choice.......
You can comply or you can complain/whine.
I guess you could always turn around and go back where you were coming from, maybe not......

There is another choice. Don't leave the Country.

You don't have to leave the country. On my trip to the left coast we were stopped at at least four check points run by the INS/ICE on the freeway and one Dept of Ag. They (INS) were working dogs and all but three glanced in the car and waved us through. One had us roll down the window and asked if we were citizens ( I wanted to smart off but my wife was already mad that I greeted them with, "What can I do for you gents?"). Definite profiling which makes me ask, why is it not okay in airports? There were people being directed over and their vehicles being searched. They fit the "profile". I wondered what my response would have been if the dog "hit" on our vehicle. I was armed all the way except in Cali where it was locked in the trunk.

[couzin]

...I have to go to Louisiana next week and I dread that...

Definitely out of the country - sometimes it feels like another planet...

[57Coastie]

Having read the thread on consent to search and not wanting to hijack it, I am wondering about options that a person has when the authorities conducting the search are Federal? Once, pre-CHL, I was driving back from Canada and gong through customs I was "randomly" (having Texas plates and going through Michigan) selected for a vehicle search. I thought it would be no problem. My mistake. It turns out my wife had packed a paper grocery bag with caladium bulbs that we bought from a swim team fund raiser as a gift for friends up north. I forgot them in the back of the Suburban and went to visit relatives in Canada. I was sitting in the waiting area when I saw a whole group of customs agents surround the vehicle. One comes in and talks to the lead agent. He calls me over and asks me if I had anything to declare. Nope not me. Are you sure? Why yes I am. Shortly thereafter the paperbag comes out and it is time for more questions. Finally it came down to, can I prove that I bought them in the USA and had them with me all the time? It had been some time since we bought them and I din't have the receipt. I offered to call the swim team and have them verify the purchase but no go with that. They have an agricultural specialist on staff who came out and gloved up to examine the offending flowers. They were confiscated and I was finally allowed to travel on my way after dogs sniffed the truck and my stuff was grossly re-arranged.

When boating on waters patrolled by the Coast Guard they stop boats and board them to conduct "safety inspections" and other searches. They do not ask, but do tell you they are boarding. When the state or local police are on the water and stop they ask if they may board and can be reasonable if they are told no thanks. So if the right to refuse is constitutional, why are the federal authorities allowed to proceed without permission and the state authorities required to ask?

The U. S. Coast Guard needs neither a warrant, probable cause or probable suspicion to board, and search, any vessel subject to its jurisdiction. There is not another federal or state law enforcement officer with the lawful authority held by a Coast Guard officer.

I might suggest that you Google "Border Search," or such, to answer your question about them. It is a fairly long story. In short, they are different. Just where, geographically, they may lawfully be conducted is probably still a little up in the air, but the elements of the border search, and their restraints, are fairly clear now.

Yet the 4th Amendment is alive and well, the question as to searches and seizures remaining that they must be "reasonable under the circumstances."

Jim

[srothstein]

I disagree with 57Coastie about the constitutional authority of the Coast Guard but he is correct about the current state of US law on the situation. Customs is a different situation.

The trick to remember is that the Fourth Amendment is not absolute and does not prohibit searches in general. It does prohibit what is considered an unreasonable search. When the subject of customs searches came up before the SCOTUS, the winning argument was that they were by definition reasonable searches. Customs authority to search is already implicit in the Constitution and was commonly accepted at the time of the writing. By specifying that Congress may regulate international trade, regulate immigration, and collect taxes, customs searches are implied to enable these actions.

The current legal question on customs searches is the location of the actual search. When the Constitution was written, the border was about the only location you could actually enter the country. But, as technology improved, people could enter the country and not be able to be stopped at the border (think trains crossing in and then where planes land). This led to a concept of a flexible border for a search. As some contraband became commonly shipped in, the police realized that if they searched and seized it at the border, it would not have a person there to charge. So, they convinced the court that allowing the package to continue to its destination so they could find the criminal was reasonable, and this extended the border search concept.

Then came the illegal immigrants and now we have border patrol checkpoints conducting searches miles from the border. All of this is under the legal concept of a flexible border and where is the search reasonable.

As for the Coast Guard, I believe the inspections and searches is wrong constitutionally. There are several laws like this, such as even state authority to stop and inspect boats for safety equipment without probable cause. Any officer can stop any motorcyclist wearing a helmet to see if the helmet is DOT approved. So far, these laws have been upheld on the concept of an inspection is not a search. I disagree, but the courts don't really seem to care what I think.

[C-dub]

I don't know which one of you guys is correct, but the USCG is a different animal. They are sorta military and they are sorta LE and they do have a different set of rules for the most part.

[74novaman]

I don't know which one of you guys is correct, but the USCG is a different animal. They are sorta military and they are sorta LE and they do have a different set of rules for the most part.

I agree with srothstein about how the law should be applied, but how things actually work mostly back up 57coastie. Don't think its necessarily right, but it is what it is.

[57Coastie]

I don't know which one of you guys is correct, but the USCG is a different animal. They are sorta military and they are sorta LE and they do have a different set of rules for the most part.

The Coast Guard is not a "sorta" military service. 10 U.S.C. 101. The five uniformed services that make up the Armed Forces are defined in 10 U.S.C. § 101(a)(4). The Coast Guard is a military service now in the Department of Homeland Security, except when operating as a service in the Navy. 14 U.S.C. 1. Back in the days when the U.S. would bother to declare war the Coast Guard served with the Navy. We in the Coast Guard were known to say that we were the hard core of sailors around which the Navy built itself in time of war.

Coast Guard ships and Coasties are deloyed today with the Navy to most of our trouble-spots, including, but not limited to, the Strait of Hormuz and off the coast of Somalia. We also like to say that "our obscurity is our security." The CG seldom blows its own horn, but, being bored this morning, I might take this chance to do so -- just a bit. So please forgive me.

For example, in the earlier days of the Vietnam conflict the CG had the greatest percentage of its forces in-country of all the five armed forces -- bar none. In WWI the CG lost a greater percentage of its forces in combat of all the armed forces -- bar none. The CG is our longest continuous seagoing armed service of the three -- the CG, the Navy and the Marine Corps -- the latter two having been abolished for a while by President Thomas Jefferson after the Revolutionary War, but the CG's predecessor service, formed in 1790, was not. August 4, 1790 -- tomorrow is the Coast Guard's birthday.

In WWII my late father-in-law commanded a CG invasion troopship which was present at almost every amphibious action during the war, from Africa, to D-Day to the Japanese-held Pacific islands. I could never get him to talk about his wartime experiences, except say to me, "Jim, I sent thousands of soldiers and Marines and Coast Guardsmen ashore, knowing that on a good day my LCVPs, marked with red crosses, might bring 1/3 of them back alive and unwounded."

At the same time he was defending his ship against enemy attack, including Kamikazis.

Yours truly, retired Coast Guard himself, served just about half his career overseas. Service stateside usually meant being at sea more than 50% of the time.

The CG is a federal law enforcement agency, ashore and at sea. 14 U.S.C. 2; 14 U.S.C. 89. CG LEOs are permitted by federal law to board and search vessels subject to their jurisdiction without warrant, probable cause or probable suspicion. 14 U.S.C 89. CG commissioned officers, warrant officers and petty officers are federal LEOs, authorized by federal law to carry firearms both on and off base. 14 U.S.C. 2; 19 U.S.C.1401; 19 U.S.C. 1589. It is not subject to the limitations of the posse comitatus act applicable to the other four military services. 18 U.S.C.1385.

When one's little pleasure boat is boarded by the party from the little CG boat, you may be assured that it is likely that one or more personnel are on board the CG boat watching the back of the boarding party, usually discretely armed with something like a modern SF M1911, a shotgun, or, in some cases, a .50 cal. These boarding parties are trained to be "nice," but they are also trained and aware of the vulnerability of an armed LEO up close and personal to a BG. They are capable of being "non-nice" in a blink of the eye, depending on such things as the inspected boat's operator's attitude or even his nervousness. Many opt to carry the SF M1911 for the same reason the original M1911 was used by the Army in the Philippines -- an innocent-looking drug smuggler may be high from sampling his cargo, and it may be necessary to terminate a threat without time for a second round.

I have before expressed my respect for what Steve Rothstein offers our forum, and that respect continues. He and I have a difference of opinion here, and that happens. I will take the liberty of suggesting that a person board an innocent-looking boat "counting life jackets," if you will, a duty assigned to the CG by the Congress, knowing well how many times such boats have been crammed to the gills with drugs, with the operator being armed, desperate and dangerous. The 4th amendment only prohibits "unreasonable" searches and seizures. It nowhere requires any LEO to get a warrrant; nor does it require probable cause except when a warrant is sought.

Reasonableness is in the eye of the beholder, and it is a question, ultimately, for a judge. The Coast Guard is happy to have its actions looked at by both the public and judges, as it has been since 1790, when the first Congress of the new United States of America created the Revenue Cutter Service, the predecessor-service of the Coast Guard, and enacted the predecessor of 14 U.S.C. 89, one of the very first statutes enacted by that new Congress:

“It shall be lawful for all collectors, and the officers of the revenue cutters herein after mentioned, to go on board of ships or vessels in any part of the United States, or within four leagues of the coast thereof, if bound to the United States, whether in or out of their respective districts, for the purposes of demanding the manifests aforesaid, and of examining and searching the said ships or vessels; and the said officers respectively shall have free access to the cabin, and every other part of a ship or vessel....”

The courts have looked at this statute for 222 years -- a long time. And the Coast Guard has passed muster.

"Semper Paratus," and Happy Birthday, Coast Guard.

Jim

[rwg3]

[When one's little pleasure boat is boarded by the party from the little CG boat, you may be assured that it is likely that one or more personnel are on board the CG boat watching the back of the boarding party, usually discretely armed with something like a modern SF M1911, a shotgun, or, in some cases, a .50 cal. These boarding parties are trained to be "nice," but they are also trained and aware of the vulnerability of an armed LEO up close and personal to a BG. They are capable of being "non-nice" in a blink of the eye, depending on such things as the inspected boat's operator's attitude or even his nervousness. Many opt to carry the SF M1911 for the same reason the original M1911 was used by the Army in the Philippines -- an innocent-looking drug smuggler may be high from sampling his cargo, and it may be necessary to terminate a threat without time for a second round.

I have watched the responses to my post with great interest and I think I might need to refine my question just a bit. I am glad both srothstein and 57Coastie put forth their input and it helps me refine the issue in my mind. For me it isn't the fact that both customs agents and CG personnel conduct inspections or searches of my vehicles, but rather the maner in which they do them in contrast to to method that state and local police must use. It makes me wonder why one branch of public service must ask and accept a no, unless probable cause is found, and the other branches just search as if the implication is that probable cause is not required. Now I am willing to split the customs role from the CG role in this issue as one is asked to declare if they have any illegal (or not permitted) items upon re-entry into the US by the customs officer. Not everyone gets searched but now I am sure that all luggage gets screened and scanned.

The issue that gives me smallest tinge of uncomfortable feeling is the concept above that 57Coastie expresses. I know rationally that all law enforcement personnel must be careful when conducting their business so I dont mind that there is backup available to the boarding party. The portrayal above suggests that in all stopping an inspecting situations it presuppose a BG. I know that on many waters where the CG is present that the little pleasure boats are in fact simply that, and also that some may be in fact BG's. I suspect it far fewer than a majority of cases, unless BG boats fit a certain set of traits that predisposes them to being stopped. This is also true in motor vehicles. If I am out in my boat with my wife and kids and the CG is out doing inspections, and I get selected, I just wonder how we got to the point that my boat can be searched without even being asked.

I am not going to lose sleep over this. The authorities have a tough enough job to do as it is and I try to follow the rules as best I understand them. It just opens the door to many what ifs. For instance, one of the arguements about not allowing the search of your car is you dont always know who was in it, and with what. If you keep your boat at a marina then the same holds true, yet if the CG stops you you dont have a choice to decline a search. I believe that as an everyday risk this is pretty small one, but the question just of kind nags at me.

[57Coastie]

Your attitude is both noteworthy and praiseworthy, rwg3. You will never have a problem with the Coast Guard.

In my earlier post I neglected to mention something I think pertinent to your original questions, and which may to an extent merge those questions and help in understanding both border searches and Coast Guard "nonborder" searches.

Officers of the Coast Guard are, by federal law, "officers of the Customs," having the authority of officers of the Customs. To a very great extent border searches and searches of vessels by the Coast Guard differ only by where they are conducted and possibly where the "searchee" has been or is perhaps enroute. This, granted, is to an extent an oversimplification, but the underlying rationale behind making such searches presumptively "reasonable, under the circumstances" is much the same.

That is, the circumstances under which a search is held may cause the search to be reasonable, although under other circumstances such a search could be unreasonable and unconstitutional.

Jim