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June 27, 1932

COPPOLO et al.

The opinion of the court was delivered by: AVIS

AVIS, District Judge.

The defendants have been indicted for possession, transportation, and importation of intoxicating liquors. They were arrested while aboard the fishing boat Antonina. Defendants move to suppress the evidence seized, alleging illegality under the Fourth and Fifth Amendments to the Constitution.

It appears from the testimony, taken on the motion, that Chief Boatswain Mate Karl Schmidt, an officer of the Coast Guard, was patrolling the entrance to Ambrose Channel on July 24, 1931, in a government vessel; that he sighted the above-mentioned fishing vessel entering the harbor; hailed the vessel, and went aboard. He asked for, and inspected, the vessel's documents, including the manifest. The captain stated that the vessel was loaded with scallops. The boatswain, claiming a right to investigate the cargo, then opened the hatches and discovered that the vessel carried a large quantity of intoxicating liquor. There was not testimony tending to show that, prior to boarding, the government officer had any cause to believe that the vessel was smuggling or carrying contraband.

  The government claims that under the revenue laws a search and seizure, made by proper officers, does not require that they shall have reasonable cause to believe that the law is being violated, but that the right to search and seize without probable cause is justified under the provisions of 19 USCA § 241, section 2806 of the Revised Statutes, and section 581 of the Tariff Act of 1922 (19 USCA § 481; 46 USCA § 6). All of these statutes have been repealed, and the law embodying the provisions of the repealed acts is now found in 19 USCA §§ 1431 and 1581, being the 1930 re-enactment of the tariff laws.

 Section 1431 refers to the requirement of manifest, and what it shall contain, and section 1581 authorizes the officers of the customs or the Coast Guard, etc., to go on board of any vessel "to examine the manifest and to inspect, search, and examine the vessel or vehicle, and every part thereof. * * *" This section further provides that the officers may board the vessel and use such force as may be necessary, and, in case of breach or violation of the law, may seize the vessel and arrest the persons found on board.

 The protection afforded by the Fourth and Fifth Amendments extends to boats, and, unless the revenue laws aforesaid give the right, a search and seizure could not be made without a search warrant, unless the officer had reasonable cause to believe the law was being violated.

 There is no suggestion in the evidence that the Coast Guard officer had any reason to believe that the boat was carrying liquor until the hatches were opened. It appears that at the time in question all vessels of this character were being boarded.

 The proof shows that the manifest was produced, and was, on its face, in conformity with the provisions of the statute.

 The case of Maul v. United States, 274 U.S. 501, 47 S. Ct. 735, 71 L. Ed. 1171, cited by counsel for the United States, does not seem to be in point, as it decided only the question of the right to seize a vessel beyond the twelve-mile limit, and did not involve the question of lawful or unlawful seizure under the Constitution.

 In United States v. Lee, 274 U.S. 599, 47 S. Ct. 746, 74 L. Ed. 1202, the same question as to place of seizure was involved, but, in addition, the right of seizure without probable cause was also raised. The court held the seizure to be valid, but it is apparent that this result was reached only because of the facts in that case. The court, through the whole opinion, rests the decision upon the fact that there was "probable cause to believe." Pages 562, 563 of 274 U.S., 47 S. Ct. 746, 748.

 It is not a case where the manifest was not produced, as in Gillam v. United States (C.C.A. 4) 27 F.2d 296, 301.

 In the case of United States v. Hayes (D.C., E.D.N.Y.) 52 F.2d 977, 979, the court, in a statement which appears to be dictum, says that "'Probable cause' was not a prerequisite for authority of the Coast Guard patrol to board the vessel to inspect for any violation of the navigation, tariff, or other laws of the United States," but that case was disposed of upon the conclusion that probable cause had been shown. No cases were cited to sustain the statement made.

 The case of Arch v. United States (C.C.A. 5) 13 F.2d 382, 384, I believe shows the actual legal distinction, as to the necessity for reasonable cause, and circumstances under which a search incident to a seizure may be made. The court in that case said: "When the Coast Guard observed her at anchor they had the authority to board her for the purpose of making inquiry as to her cargo and destination, and, finding no manifest, had the right to search without the necessity of procuring a search warrant. Tariff Act of Sept. 21, 1922, § 581 (Comp. St. Ann. Supp. 1923, § 5841h [ 19 USCA § 481, 4l USCA § 6]); Carroll v. U.S., 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A.L.R. 790. Finding probable cause therefor, the seizure was justified. It follows that the evidence thus obtained was admissible."

 A government officer has the right to board a vessel to inspect the manifest and observe the cargo, and if, from this investigation, it is apparent that a crime is being committed in his presence, by reason of what he can see, or by reason of the failure of the master to produce a manifest, or an incomplete or improper manifest, or other apparent violation of the navigation or revenue laws, he would have the right to arrest the offender and seize and search the vessel.

 In the instant case no such violation was proven, for, as the proof goes, there was nothing in the appearance of the vessel, or the surrounding circumstances, to indicate that it was violating any United States law. The violation was discovered only upon the opening of the hatches and the making of an exploratory search.

 I agree with the general conclusions of Judge Knox in the case of Fish v. Brophy (D.C., S.D.N.Y.) 52 F.2d 198, as to the necessity of probable cause, but do not agree with his suggestion that the provisions of the Tariff Act apply only to vessels carrying cargo from a foreign port.

 The instant case is submitted by the government solely upon the claim that the Coast Guard under the revenue act provisions have authority, without probable cause, to search any vessel in American waters. With this contention I cannot agree, and, as no probable cause to seize or search was shown, an order will be made to suppress the evidence so seized.


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