Penn State LEO Boarding Case

[Group9]

I found the statement about annual revenues for the Fish and Game from such stops would stop and this was also a big concern to the LEO department. Seems like it all comes down to money in the end.

A lot of jurisdictions have converted their law enforcement officers to revenue collection agents.


And, that's unfortunate.

 

[Donsan]

A lot of jurisdictions have converted their law enforcement officers to revenue collection agents.


And, that's unfortunate.

Well said. It is kind of like biting the hand that feeds you (the tax payer). It is actually a double whammy when consider the impact this kind of thing has on auto insurance rates. The insurance companies love it.

Still remember the operation they used to run in Waldo FL which I understand has since been cleaned up.

 

[Delfin]

A few things. We're talking state, not federal, laws here. I think it'll be a long time before you see the feds reverse their right to board and inspect.

And what was that crap about the LEO's not accepting a type 2 PFD? It's hard to believe they're that poorly trained. If true, that would be the easier case to fight. What was the motivation to go after the legality of the boarding? There may be more to the story.

Depends on whether it was an inflatable type II that must be worn to count, or a non inflatable, which doesn't.

If I understand the case, whether he had the right pfds on board, or had his fishing license taped to his forehead is irrelevant. The issue is whether the LEOs need probable cause to do a general safety check. My guess is that the state will argue they did in this case, the higher court will have a "he said, she said" dispute and will find for the state without ruling on whether such probable cause is needed or not, just to maintain the status quo.

The courts have already found that you can be stopped by the police for something that isn't against the law but the police thought it was, then convicted on the basis that they found something that was illegal after during the bogus stop. The Wisconsin Supreme court upheld a drug bust that stemmed from a vehicle being stopped because it had an air freshener hanging from the rear view mirror that the cop thought had to be illegal, but wasn't.

I'm not too hopeful this case will result in any meaningful change.

 

[SoWhat]

Massachusetts MGL Chap 90B Section 12;
"The provisions of this chapter and all rules and regulations made under the authority thereof shall be enforced ...For the purpose of such enforcement such officers may board any motorboat and may conduct an inspection thereof, including an examination of the certificate of number, and may require the operator of such motorboat to give his true and correct name and address..."

Getting a court to overturn public safety regulations seems like an uphill battle.

 

[Ski in NC]

I think it boils down to this: Since this country's founding, the USCG has had authority to board any vessel at any time. This was for customs and import duty enforcement. As in "revenue cutters". The courts have upheld this through numerous challenges as protection against smuggling is one of the CG's primary duties, and ships can come from anywhere carrying anything.

What is less clear is whether state and local law enforcement agencies have the same latitude. In automobiles, searches can only be made by consent, probable cause, or by warrant.

It will be interesting to watch this as it progresses through the courts. I doubt anything will change regarding the broad authority given to the USCG. But it is a bit of a stretch that the same exception to the protections of the 4th given to the USCG for border and customs enforcement applies to a fishing skiff in a lake. For the purposes of checking life jackets?? Really??

We shall see...

 

[dannc]

Depends on whether it was an inflatable type II that must be worn to count, or a non inflatable, which doesn't.

...

Yep, and the PFD also has to be accessible, which it seems to have been, but it cannot be in packaging. Many boaters will keep PFDs in their packaging to keep the PFD clean and dry, which makes sense except that it is then deemed inaccessible.

The article has left out a few details that are important.

Later,
Dan

 

[OldDan1943]

Why the 'castle rule' is not extended to an obviously live aboard trawler is beyond me.
I will leave that challenge to those with more money and time plus perhaps political influence than I have.

IF the USCG wishes to board my boat, I welcome it provided, I have room to safely maneuver the boat. If I run aground, I will not be happy.
The same goes for the LEO. I am afraid the LEO maybe less sensitive to needs for safe maneuver room than the USCG.

Alas, times have changed witness, the drug running small and larger boats.

I find it refreshing to see the professionalism of the USCG. Think of how it could be if the USCG officers behaved as some of land bound LEO.

 

[Benthic2]

I agree that the USCG's authority to board at will will probably not go away anytime soon, and I don't see that as a problem. I think their professionalism is so far above local LEO's that while it may be inconvenient, it would never become harrassment for personal reasons. Plus, the trend is for personal freedoms to be infringed upon for terrorism/drugs/immigration prevention, all of which a federal agency is charged with preventing.

Local LEO's should need a warrant, and I really hope this case goes as far as it needs to , to ensure that becomes the legal standard. I think a boat should be considered a private and personal space, just like a car is, and a live aboard should be afforded the same protections granted to a dirt dwelling home owner. In fact, I would assume if you had a cabin on a lake somewhere, that wasn't your primary residence, it would still be afforded the protection of the 4th Ammd. so any boat with berths should be given the same.

 

[Benthic2]

Alas, times have changed witness, the drug running small and larger boats.

Anyone who tries to "run" drugs in an 8 knot trawler isn't smart enough to earn the trust of a supplier of very expensive merchandise. I know its considered profiling, but I'd like to think the authorities are boarding 10 cigarette boats for every trawler....and are doing it more in South Florida/California than the more norther states.

 

[OldDan1943]

Anyone who tries to "run" drugs in an 8 knot trawler ....

OR a 'fast trawler'.

 

[psneeld]

Lots of drugs and aliens have been smuggled with trawlers, slow fishing boats and sailboats.... maybe a higher percentage in those type vessels have been caught due to longer exposure periods..

But they still are used.

High cost, large shipments are often smuggled in high tech boats.

The lower tech vessels give the shippers the options of "blending in" but also can always be used as sacrificial lambs if a distraction is needed away from a larger shipment.

Based on reports, seems like most busts recently have been the high priced, high tech operations..... so without all the enforcement data...just guessing is all most of us can do. But I personally was involved with the low tech stuff quite often till 20 years ago.

 

[kchace]

A few inflatables dont have to be worn to count...its on the tag.

Type IIs should be acceptable for passengers, but are not for certain watercraft or watersport activity.

Yes some LEOs are pretty poorly trained, as even some Coasties and USCGAUX dont know the intricacies of MSDs regulations, types of placards, other requirements for vessels above 12M.

Very true. You can still find all kinds of "official" literature that states inflatable PFDs must be worn to be counted - which is of course not true. It depends on the rating of that particular PFD. Haven't been stopped yet but know it will happen. It will be interesting for us because we are ex coasties and do everything by the book.

Ken

 

[siestakey]

Lots of drugs and aliens have been smuggled with trawlers, slow fishing boats and sailboats.... maybe a higher percentage in those type vessels have been caught due to longer exposure periods..

But they still are used.

High cost, large shipments are often smuggled in high tech boats.

The lower tech vessels give the shippers the options of "blending in" but also can always be used as sacrificial lambs if a distraction is needed away from a larger shipment.

Based on reports, seems like most busts recently have been the high priced, high tech operations..... so without all the enforcement data...just guessing is all most of us can do. But I personally was involved with the low tech stuff quite often till 20 years ago.

I said in an earlier thread my last 2 boardings the firs the first thing they asked was about undocumented aliens I can not remember the exact wording before they boarded

 

[BandB]

Humans and drugs come in all possible ways, from the grandmother swallowing them and entering through the airport to the slow trawler going up the coast. A lot of stops are based on tracking a boat for a while and having some degree of suspicion based on route traveled. Generally, if they feel sure you're carrying, they'll wait and greet you at the marina. Might even offer to assist you unloading it. They also base it on your travel pattern, not just the one trip. I've only personally witnessed one arrest in my life and it was a relatively young woman with a child in a stroller. I got phoned quickly with people talking about a charter yacht in West Palm that was met at the dock. That one was all based on pattern and they'd followed it on it's entire trip home.

 

[Delfin]

Very true. You can still find all kinds of "official" literature that states inflatable PFDs must be worn to be counted - which is of course not true. It depends on the rating of that particular PFD. Haven't been stopped yet but know it will happen. It will be interesting for us because we are ex coasties and do everything by the book.

Ken

Seems to be a fair amount of confusion on this topic. The Coast Guard stops us annually because we boat in the winter and they get bored and they have consistently told me that unless an inflatable type II is worn, it doesn't count.

Confirmed by this:. https://www.thoughtco.com/legal-requirements-for-inflatable-pfds-2915456

And this: https://www.boatsmartexam.com/knowledge-base/article/usa-life-jacket-and-pfds/

Perhaps all these sources are wrong though.

 

[OldDan1943]

Do you wish to be detained until the LEO get a warrant or just let them board your boat and inspect it for whatever reason and then, be on your way?

 

[BandB]

Do you wish to be detained until the LEO get a warrant or just let them board your boat and inspect it for whatever reason and then, be on your way?

Ah, and you point our what so often happens on a car. If they ask to search your car and you decline, then they're very likely to bring a dog to sniff. All that happens is delay and most times the LEO is going to say the dog indicated even if they end up finding nothing. I don't know what the odds are but I've never seen cops on any of the live shows or seen them in person where they asked to search a car, the driver say "no" and it didn't turn into a long drawn out process. I'm not saying it's right, just that's what normally happens.

 

[BruceK]

Do you wish to be detained until the LEO get a warrant or just let them board your boat and inspect it for whatever reason and then, be on your way?

That might be the next case if the person being prosecuted is right and wins, and the law gets tightened as a consequence. But for now,(s)he`s apparently contesting the charge on the basis the evidence was illegally obtained in an illegal search. If you are charged with something it`s open to take whatever legal points you can find.
Whether the person charged is right or wrong I`ve no idea, but surprising things can happen when the prosecution is put to prove the offence.

 

[psneeld]

Almost all inflatables do meet the "need to be worn" criteria. But if they meet the type 2 label, inflator type and amount of gas..... then not.

Straight from Westt marine advisor....

Inflatables with harnesses are, by default, Type V life jackets with instructions that you should be familiar with when wearing a harness. Their performance type is generally Type III or Type II.Belt pack inflatables are Type V life jackets with Type III performance because you have to slip the inflated chamber over your head.High buoyancy inflatables (150 N or 33 lbs of buoyancy) have a Type III performance rating if they are manually-activated with a ripcord, and a Type II performance rating if they are water-activated. Both products perform exactly alike once they’re inflated, since the bladder and the rest of the life jacket are identical except for the inflator.The Coast Guard requires that water-activated “automatic” inflatables with non-1F inflators have to be worn to be counted in the vessel’s inventory of life jackets. The most recent models with 1F inflators, so-called “stowables”, don’t have to be worn to be counted as inventory. However, this misses the point of inflatable PFDs, which are so comfortable that you’ll wear them while on the water.Finally, the inshore Coastal Series inflatables use a 25gr. cylinder, and provide 26lb. of flotation. They are only legal when worn.

https://www.westmarine.com/WestAdvisor/Selecting-a-Life-Vest

 

[Group9]

That might be the next case if the person being prosecuted is right and wins, and the law gets tightened as a consequence. But for now,(s)he`s apparently contesting the charge on the basis the evidence was illegally obtained in an illegal search. If you are charged with something it`s open to take whatever legal points you can find.
Whether the person charged is right or wrong I`ve no idea, but surprising things can happen when the prosecution is put to prove the offence.

I mostly worked on the prosecution side of things, but during my extremely short career as a criminal defense attorney, I was assigned to assist a public defender on a murder case where the defendant had been held without bail for eighteen months while the public defender and prosecutor negotiated over an appropriate sentence.

After reading the file for a few days, and seeing nothing in it that made me even slightly think the defendant was guilty (and, who had steadfastly maintained that he was not anywhere around the scene of the murder, but rather was thirty miles away with an alibi of a very neutral party), I convinced the defendant to go to trial.

The prosecutor continued to tell us what a huge mistake we were making. Right up until the point the jury we had selected was seated and he was about to call his first witness. At that point, the prosecutor asked for a conference with the judge, in which he informed everyone that he wished to drop all the charges.

That anecdote about how great I am aside, our criminal justice system, while still one of the best in the world on paper, is at this point in our actual usage, completely overwhelmed, and broken operationally. People blame the police, for enforcing laws that should have never passed any type of serious constitutional debate in the first place.

The blame is with our court system, where it has become cheaper to plead gulity, and pay a fine for something you didn't do, or that constitutes, or is the result of, an improper action by the state, than to fight it through the court system, and win.

It hasn't always been that way. The case law books of prior court opinions are filled with incidents of normal people fighting improper government overreach and winning in years past. Not any more. It simply costs too much today and that check and balance is pretty much gone.

Look at the anchoring rights case in Marco Island as a good example of accused citizen empowerment through challenge and appeal, that used to happen a lot, but rarely does now.

 

[Alaskan Sea-Duction]

Massachusetts MGL Chap 90B Section 12;
"The provisions of this chapter and all rules and regulations made under the authority thereof shall be enforced ...For the purpose of such enforcement such officers may board any motorboat and may conduct an inspection thereof, including an examination of the certificate of number, and may require the operator of such motorboat to give his true and correct name and address..."

Getting a court to overturn public safety regulations seems like an uphill battle.

Contesting this in Court may change or eliminate the law/regulation.

What is less clear is whether state and local law enforcement agencies have the same latitude. In automobiles, searches can only be made by consent, probable cause, or by warrant.

It will be interesting to watch this as it progresses through the courts. I doubt anything will change regarding the broad authority given to the USCG. But it is a bit of a stretch that the same exception to the protections of the 4th given to the USCG for border and customs enforcement applies to a fishing skiff in a lake. For the purposes of checking life jackets?? Really??

We shall see...

I agree it will be interesting to see how this case ends up.

Do you wish to be detained until the LEO get a warrant or just let them board your boat and inspect it for whatever reason and then, be on your way?

And that is how a bad law stays a bad law.

 

[GFC]

Do you wish to be detained until the LEO get a warrant or just let them board your boat and inspect it for whatever reason and then, be on your way?

Dan, if a person really has his panties in a knot and wants to argue with the cops and refuses them the search they want to do, hoping they will not decide to get a warrant, may be taking the right course.

For a LEO to get a warrant under the circumstances of being on the water he must get a telegraphic/telephonic warrant from a judge. To do that he must call the judge by phone. This usually happens outside of the judge's normal office hours so the LEO is interrupting him at home on a weekend or evening.

So now you have a cranky judge who is going to do everything by the book because he knows whatever he does (issue the warrant or not) is going to be reviewed and likely challenged.

So he's going to make sure the LEO has all his T's crossed and the I's dotted before he issues the warrant.

It's not as easy to get a telephonic search warrant as TV makes it look.

 

[OldDan1943]

(GFC) "It's not as easy to get a telephonic search warrant as TV makes it look."

Let's hope it is not that easy.

But meanwhile they are detained while the LEO gets a warrant.

 

[DLP]

(GFC) "It's not as easy to get a telephonic search warrant as TV makes it look."

Let's hope it is not that easy.

But meanwhile they are detained while the LEO gets a warrant.

I read somewhere that they can only detain you long enough to write a ticket
But this may only be for autos as the Leo was making the person wait for the drug dog to show up. If the drug dog doesn't show up during a normal time of writing a ticket they can not be detained after that unless probable cause in which they would search anyway. I think it was SCOTUS that overturned a search due to detaining them to long

But what do I know.. I play on YouTube

 

[The Other Gary]

And getting a warrant means the LEO has to come up with a reasonable suspicion of wrongdoing. No Judge will sign a warrant based on a groundless random stop.

 

[Benthic2]

But the LEO can tell the judge whatever he wants...suspicious behavior....erratic opperation, wandered outside the channel...came close to a kayaker.....wake was too big.... There are lots of things that could be suspicious that can't be documented, and for the kind of LEO that wants to be creative, you can be sure he'll know just what to say.

 

[GFC]

There are lots of things that could be suspicious that can't be documented, and for the kind of LEO that wants to be creative, you can be sure he'll know just what to say.

A crooked LEO might get away with that once, or maybe even twice, but remember there are other LEO's on the boat with him and they're not likely to stand up in court and swear that what the crooked one is saying is the truth.

None of the cops I worked with would have lied in court to save the arse of an officer who they knew was lying. They only have one integrity and it wasn't for sale to protect some bozo cop. The misdemeanor ticket he wrote is just not worth it.


DLP: "I read somewhere that they can only detain you long enough to write a ticket"


Did you read that in a comic book? Totally not true.

 

[BruceK]

..None of the cops I worked with would have lied in court to save the arse of an officer who they knew was lying..

Clearly you had the benefit of working with honest men.
In my experience,LEO colleagues backing up an officer they know is lying is exactly what they do. Unless they don`t like him,then they throw him under the bus.

 

[FF]

A crooked LEO might get away with that once, or maybe even twice, but remember there are other LEO's on the boat with him and they're not likely to stand up in court and swear that what the crooked one is saying is the truth.

The cops call it" TESTALYING"

 

[OldDan1943]

Group9, "The prosecutor continued to tell us what a huge mistake we were making. Right up until the point the jury we had selected was seated and he was about to call his first witness. At that point, the prosecutor asked for a conference with the judge, in which he informed everyone that he wished to drop all the charges."

Crap like that is a total waste of the court's time, plugging up the system. The prosecutor should have known he had a very weak case and not wasted the courts time.
I do hope they expunged the defendant's record of this charge.