United States of America, Appellee, v. Garret R. Dillon, Defendant, Appellant, 701 F.2d 6 (1st Cir. 1983)

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US Court of Appeals for the First Circuit - 701 F.2d 6 (1st Cir. 1983) Argued Feb. 1, 1983. Decided March 1, 1983

Michael S. Washor, New York City, with whom Joseph J. McCarthy, Jr., and Washor, Greenberg & Washor, New York City, were on brief, for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., Portland, Maine, with whom Richard S. Cohen, U.S. Atty., Portland, Maine, and William H. Browder, Jr., Asst. U.S. Atty., Bangor, Maine, were on brief, for appellee.

Before ALDRICH and BOWNES, Circuit Judges, and WYZANSKI,*  Senior District Judge.

BAILEY ALDRICH, Senior Circuit Judge.

Defendant Dillon seeks to persuade this court to reverse its settled rule that the Coast Guard is permitted to board a vessel, in this case the 46' sloop yacht RELENTLESS, for a safety and document check without cause. We are extraordinarily unlikely to reverse our recent and repeated holding that the boarding statute is constitutional. United States v. Arra, 1 Cir., 1980, 630 F.2d 836, 841; United States v. Hilton, 1 Cir., 1980, 619 F.2d 127, 131, cert. denied, 449 U.S. 887, 101 S. Ct. 243, 66 L. Ed. 2d 113. Cf. United States v. Piner, 9 Cir., 1979, 608 F.2d 358 (2-1) (boarding after dark). Defendant's motivation stems from his conviction under 21 U.S.C. §§ 841(a) (1), (b) (6) & 846, as a result of discovery of a cabin-load of marijuana, which advertised its presence even before the ship's papers could be requested. Allegedly, the court improperly denied his motion to suppress, sub nom. United States v. Whitmore, D. Me., 1982, 536 F. Supp. 1284. We affirm.

Defendant's attempt to analogize a boat with a dwelling because "every sailor considers his ship his home," fails, among other reasons, because a boat is much more than a home; examination of safety equipment and documents may not even involve the living quarters. The slight ultimate invasion in the present case came not only as a result of defendant's failure to produce the paper; it was also the result of following an odor of marijuana noticeable topsides.

Correspondingly, the analogy of random searches of automobiles fails because of the far greater importance of a safety check. Whether a boat has on board registration papers corresponding with her displayed identification may be comparatively insignificant--although much more important than an automobile registration--but safety equipment, approved life preservers, functioning fire extinguishers, fuel storage, etc., is a different matter. Law review writers may be impressed by statistics indicating that relatively few marine accidents are due to lack of required equipment, see Note, High on the Seas: Drug Smuggling, the Fourth Amendment, and Warrantless Searches at Sea, 93 Harv. L. Rev. 725, 742 (1980), but, besides implicitly criticizing the value of the safety requirements, this overlooks the fact that realization of being subject to inspection at any place or time may be the best impetus for compliance. If such an inspection leads to the discovery of unlawful cargo, that is the known risk that contraband carriers take, rather than a reason for their invoking the Fourth Amendment.

The note writers' suggestion, id., at 744, for the establishment of shore facilities at which every vessel would be routinely inspected on advance notice, and thus avoid a selection that would be an "abuse of discretion," viz., a subterfuge, is, if we may stay ashore, to put the cart before the horse. Innocent and guilty vessels being all freely inspectable, there is no reason to adopt special, expensive procedures to avoid alleged "gut" intrusion on the guilty. The writers further overlook the statement in the one case at all favorable to them, United States v. Piner, 608 F.2d, ante, at 360, that under way inspection, without notice, may be the most valuable from the safety standpoint.

Although we rest on this, we note that this defendant is in a peculiarly poor position to object because the yacht was first observed on the high seas bound for the approaches to Penobscot Bay, Maine, and was boarded immediately upon entering inland waters. Cf. United States v. Green, 1 Cir., 1982, 671 F.2d 46; United States v. Zurosky, 1 Cir., 1979, 614 F.2d 779, 787-88, cert. denied, 446 U.S. 967, 100 S. Ct. 2945, 64 L. Ed. 2d 826. It was not improper that the decision to board was made earlier. In addition to this crossing, it was observed, before dispatch of the small boat, that the yacht was sluggish and low in the water. An unaccustomary heavy load of something (in fact, 5 1/2 tons of marijuana), was plainly indicated.

Having written a painstaking and conclusive opinion making apparent the frivolousness of an appeal, the district court should not have continued defendant on bail. United States v. Caron, 1 Cir., 1980, 615 F.2d 920, 922. The judgment is affirmed. An order shall issue forthwith revoking bail without awaiting mandate. First Circuit Rule 16.


Of the District of Massachusetts, sitting by designation