Warren E. Burger: We will hear arguments next in the United States against Villamonte-Marquez. Mr. Alito, you may proceed whenever you are ready.
Samuel A. Alito, Jr.: Mr. Chief Justice, and may it please the Court, since before the adoption of the Fourth Amendment, Customs officers have been authorized by federal statute to conduct suspicionless boardings of vessels for the purpose of checking their documents. The issue in this case is whether such boardings in inland waters constitute unreasonable searches or seizures. The facts of this case may be briefly summarized. At about 11:30 in the morning, in March, 1980, a patrolling Customs officer spotted a 40-foot sailboat equipped with a diesel engine, anchored about 18 miles inland, in the Calcasieu River Ship Channel, which is a waterway connecting the Gulf of Mexico to the Customs port of entry at Lake Charles, Louisiana. The officer and those on board his boat had never before seen a sailboat in that waterway, which is traveled by large commercial vessels. On the stern of the sailboat was the name of the vessel, the Henry Morgan II, and its hailing port, "Basilea", which it turns out is the Latin translation for Basel, Switzerland. Although the officer did not recognize the name "Basilea", he correctly believed that it denoted a foreign port. At this time, a large freighter was heading up the ship channel, and it created a huge wake that caused the sailboat to rock so violently back and forth that it appeared it was about to capsize. In fact, at one point the sailboat's mast actually touched the water, and its keel emerged from the water. The Customs officer called out to Respondent Hamparian, who was the only person visible on deck, and asked if he was all right, but Hamparian merely shrugged his shoulders, which suggested to the officer that he was unable to speak English. The officer then decided to board the vessel for the purpose of checking the documents. He did so, and while examining the documents, he detected the odor of burning marijuana. He also saw through an open hatch burlap-wrapped bales of what he believed was marijuana. The Respondents were then arrested. The boat was searched. Fifty-eight hundred pounds of marijuana, with a street value of about $7 million, was seized. Respondents were convicted of drug offenses, but their convictions were reversed by the Court of Appeals on the ground that there was no reasonable suspicion of criminal activity, and therefore the officer was prohibited from boarding the vessel in inland waters for the purpose of checking the documents. With these facts in mind, it bears emphasis that the only authority at issue in this case is the authority to board the vessel and check the documents, and not the authority to search any other portion of the craft. It also bears emphasis that the Henry Morgan II was not a small American boat on an inland lake. It was a seagoing foreign vessel on a ship channel connecting the open sea with the Customs port of entry, and it was located just a relatively short distance from the open sea. Our position, of course, is that suspicionless boardings and inspections, whether on inland or Customs waters, are reasonable, and therefore do not violate the Fourth Amendment. It is strong evidence of their reasonableness that they were authorized by the First Congress, which of course proposed the Bill of Rights to the States, and they have been continuously authorized by statute ever since. Why is this so? First, because there is simply no other adequate alternative way of enforcing the documentation laws, and the documentation laws serve many vital functions. They are the primary method of identifying vessels. They serve to regulate the entry and departure of persons and goods traveling by water. They are used in collecting import and tonnage duties, in conserving natural resources, and promoting safe shipping and boating.
William J. Brennan, Jr.: Mr. Alito, you have been addressing the merits from the beginning. What about mootness?
Samuel A. Alito, Jr.: Your Honor, this case is certainly not moot. Both sides retain legally cognizable interests in the outcome of this case. If the decision below is reversed, and Respondent's convictions are reinstated, the government will be able to seek their extradition. They may be arrested and imprisoned if they are ever found in the United States, and at a minimum, reversal of the decision below will provide grounds for their exclusion--
William J. Brennan, Jr.: Wasn't it the government that got the dismissal of the indictment?
Samuel A. Alito, Jr.: --The government had the indictment dismissed merely for the purpose of complying with the Court of Appeals mandate, but I think this Court's decisions establish that ministerial acts of that sort, which--
William J. Brennan, Jr.: Instead of a dismissal, couldn't you have sought a stay of mandate?
Samuel A. Alito, Jr.: --We could have, Your Honor, and that might have been a preferable procedure, but it is merely a technical matter.
William J. Brennan, Jr.: Didn't you waive reinstatement by the course you took, dismissing instead of getting a stay?
Samuel A. Alito, Jr.: I don't think so, Your Honor. I believe that a reversal of the decision below would permit the reinstatement of the indictment and the convictions, and therefore--
Byron R. White: Would you have to reinstate the indictment?
Samuel A. Alito, Jr.: --I think you just reinstate the convictions.
Byron R. White: And then the sentence, yes.
Samuel A. Alito, Jr.: And the sentence. And then if they are ever again found--
Byron R. White: That is what your brief says.
Samuel A. Alito, Jr.: --That's correct, and I think that's what would happen. The dismissal of the indictment was purely a technical matter, and it would certainly--
John Paul Stevens: Are you aware of any cases in which a conviction had been reinstated without the indictment... I mean, a conviction had been reinstated without an indictment being in the case, in the record?
Samuel A. Alito, Jr.: --Justice Stevens, I must confess, I don't know what happens as a technical matter to the indictment when the conviction is reinstated, but I think that when--
John Paul Stevens: I have never heard of it. I have thought about this quite a bit, and I can't think of an analogy. I am not sure it is moot. I think maybe you are right about mootness. But I don't understand how you can have a conviction in a case where there is no underlying pleading. I mean, you couldn't enter a judgment in a case if nobody ever filed a complaint. How can you have a conviction without an indictment?
Samuel A. Alito, Jr.: --Well, I see no reason why the indictment cannot be reinstated. Certainly if an indictment is improperly dismissed, it may be reinstated when that decision is reversed.
John Paul Stevens: Has it ever been done, to your knowledge, under this set of facts? I am just puzzled by this problem.
Samuel A. Alito, Jr.: I don't know whether it has been done on this state of facts.
John Paul Stevens: You can't cite us any case in which it has been done?
Samuel A. Alito, Jr.: I'm afraid I can't.
Byron R. White: Well, he was indicted, and he was convicted while the indictment was outstanding.
Samuel A. Alito, Jr.: Certainly, he was.
Byron R. White: Nobody disputes there was an indictment at one time. And that... And the only requirement for indictment is under... that he be indicted before he is tried, isn't it?
Samuel A. Alito, Jr.: I believe that is correct.
William J. Brennan, Jr.: Well, I still don't understand. Why did the government seek a dismissal of the indictment.
Samuel A. Alito, Jr.: I believe it was done... it was--
William J. Brennan, Jr.: Why not a stay of the mandate?
Samuel A. Alito, Jr.: --I won't dispute the fact that that's probably the preferable alternative, but I don't think that--
William J. Brennan, Jr.: Well, why was it... why was dismissal sought?
Samuel A. Alito, Jr.: --As a fact, I don't know, Justice Brennan. I think it was done to comply with the Court of Appeals mandate, at a time before the final decision to seek review in this Court was made.
Warren E. Burger: Did the Court of Appeals mandate address itself to the indictment or merely set aside the judgments?
Samuel A. Alito, Jr.: I believe it reversed and remanded with instructions to take proceedings consistent with the decision, and since the principal evidence at trial was the evidence that had been suppressed, I believe that--
Warren E. Burger: Is it your position that if you were complying with the mandate of the Court of Appeals, you can't be charged with any waiver?
Samuel A. Alito, Jr.: --I think that's correct. Otherwise, we would have to seek a stay in every case, and if the stay was denied, every stay case in which it was denied would have to go up to this Court, and if the stay was not granted, the case would become moot.
Byron R. White: When the mandate went back down, it went back down to the District Court, right?
Samuel A. Alito, Jr.: Yes, it did.
Byron R. White: Well, who dismissed the indictment?
Samuel A. Alito, Jr.: The District Court dismissed the indictment.
Byron R. White: On whose motion?
Samuel A. Alito, Jr.: I don't know on whose motion. I know that we did not object to it.
William J. Brennan, Jr.: I had the impression it was on the government's motion. Me, too. Am I wrong? The government can't dismiss the indictment, can it?
Samuel A. Alito, Jr.: No, it certainly can't. It can only move or not object to a defense motion.
Byron R. White: Well, do we know what the record is, or not?
Samuel A. Alito, Jr.: Well, we know what the record is. I don't know--
Harry A. Blackmun: Certainly there is nothing in the judgment of the Court of Appeals that in so many words said that the indictment should be dismissed.
Samuel A. Alito, Jr.: --That is certainly correct, but when... in a case of this sort, when the convictions are founded upon the discovery of contraband, the suppression of that contraband necessarily means that there will no longer have been--
Byron R. White: Was there some transcript made at that time of what happened in court?
Samuel A. Alito, Jr.: --I assume there was, Justice White. I have not reviewed it. And looking here at the docket sheets, it is not clear which party moved for dismissal of the indictment. Respondent's argument on mootness is not based on dismissal of the indictment. It is based on the fact that the... that Respondents had been deported, and it is for that reason--
Harry A. Blackmun: Let me put it another way. I suppose you feel that the indictment is merged in the judgment in any event. That's what your brief says.
Samuel A. Alito, Jr.: --I believe the dismissal--
Harry A. Blackmun: I think that's a good way of describing it.
Samuel A. Alito, Jr.: --I don't think I can say more than that the dismissal of the indictment was merely a technical matter, done to comply with the Court of Appeals mandate.
John Paul Stevens: All the Court of Appeals mandate required was that you set aside the conviction and suppress the evidence, which normally would lead to a new trial. I don't see why there was any requirement of dismissing the indictment.
Samuel A. Alito, Jr.: There was not a requirement of dismissing the indictment in a legal sense.
John Paul Stevens: You could have complied with the mandate of the Court of Appeals without dismissing the indictment.
Samuel A. Alito, Jr.: It would have meant an outstanding indictment--
John Paul Stevens: Right.
Samuel A. Alito, Jr.: --which would have called for a trial within a certain amount of time under the Speedy Trial Act, and if there could be no retrial, which in fact there could not be, unless the decision suppressing the evidence was reversed--
John Paul Stevens: Or stayed.
Samuel A. Alito, Jr.: --or stayed, then compliance with the Court of Appeals mandate as a practical matter would have necessitated dismissal of the indictment.
John Paul Stevens: No, it would have necessitated a motion for a stay.
Samuel A. Alito, Jr.: Well, that's right, Justice Stevens, but our position is that making such a stay motion is not necessary to preserve a live controversy.
John Paul Stevens: Well, but you don't have any authority for that proposition.
Samuel A. Alito, Jr.: Well, we don't have authority for that proposition because it was not Respondent's contention at any point that dismissal of the indictment was what mooted this case. Their argument was that deportation is what mooted the case.
Byron R. White: Well, you hope to make some authority for that.
Samuel A. Alito, Jr.: Well, at the minimum, we hope to make authority for that, Justice White.
Warren E. Burger: It wouldn't necessarily follow that there would be a new trial, if the only evidence the government had was the evidence that was suppressed. The government routinely dismisses indictments, or just doesn't pursue an outstanding indictment.
Samuel A. Alito, Jr.: That is certainly correct, Mr. Chief Justice. As a practical matter, suppression of the evidence meant dismissal of the indictment. If the Court is interested--
Thurgood Marshall: Well, they don't dismiss the indictment. They just don't prosecute it.
Samuel A. Alito, Jr.: --Well, I believe at a certain point there is a motion to dismiss the indictment.
Thurgood Marshall: Well, I thought you told Justice Stevens that you couldn't name a single case where the indictment was dismissed.
Samuel A. Alito, Jr.: I can't name one offhand. We would be happy to brief the issue.
Thurgood Marshall: How can you say it if you can't name one?
Samuel A. Alito, Jr.: Well, what I am saying is that when critical evidence is suppressed and a case is remanded to the District Court, the indictment is dismissed because a new trial is impractical, and that was what happened here, and I am sure that is what the Court of Appeals understood was going to happen when they decided this case.
Warren E. Burger: And that was consistent with the... if not ordered, it was certainly consistent with the mandate of the Court of Appeals? Well, supposing you had a civil case where plaintiff got a judgment in a negligence case, and the appellate court set it aside and sent it back for a new trial, and the plaintiff went in and moved to dismiss his complaint. Could you reinstate the judgment after the complaint was dismissed?
Samuel A. Alito, Jr.: I believe there are cases that would permit reinstatement of the complaint after... after that.
John Paul Stevens: After the prevailing party moved to dismiss his own complaint?
Samuel A. Alito, Jr.: I believe if that was done truly to comply with the mandate of an appellate court reversing--
John Paul Stevens: But it wasn't necessary to comply with the mandate. It clearly wasn't necessary. If it sent it back for a new trial, you don't have to go in and dismiss the complaint.
Samuel A. Alito, Jr.: --Well, if the practical effect of the appellate ruling is to make any further proceedings in the trial court impossible, I think--
Warren E. Burger: Counsel, let's get on with the merits of the case now.
Samuel A. Alito, Jr.: --Thank you. As I was saying, there are two reasons why suspicionless boardings and document inspections are necessary. First--
William J. Brennan, Jr.: Excuse me, Mr. Alito. May I ask you, in that respect, did the government argue in the Fifth Circuit that no reasonable suspicion was required or only that the officers in fact had reasonable suspicion? Which was it?
Samuel A. Alito, Jr.: --We certainly raised the question of whether reasonable suspicion was required.
William J. Brennan, Jr.: Well, what did you argue? Did you argue one or both?
Samuel A. Alito, Jr.: We argued... in our petition for rehearing, we argued both points.
William J. Brennan, Jr.: By that, the original argument?
Samuel A. Alito, Jr.: Initially before the trial we merely argued that reasonable suspicion was present, but we did that for two good reasons. First, the District Court had found that there was reasonable suspicion. We believed he was correct. We still believe he was correct. Second, and more important, there were prior binding Fifth Circuit cases holding that reasonable suspicion was needed for boarding in inland waters, and therefore we saw no need to urge affirmance of the District Court decision on the ground that prior decisions binding on the panel ought to be reversed, but after the panel rendered its decision, then we raised the issue of whether reasonable suspicion was needed in our petition for rehearing. There are no other adequate means of enforcing the documentation laws besides suspicionless boardings. In addition, because of the long history of pervasive federal regulation of most aspects of maritime activity, persons aboard vessels within the jurisdiction of the United States have a greatly reduced expectation of privacy, especially with respect to the vessel's documents. Let me first--
Sandra Day O'Connor: Does this case fit within the border exception?
Samuel A. Alito, Jr.: --It does not fit within the classic border exception, but we believe it is necessary to effectively police the sea border. The sea border is nothing but an imaginary line three miles from the coast. Now, if a suspicionless boarding and document check is allowed only when there is reasonable suspicion to believe that a vessel has crossed the border, that is an impossible standard. Unless the Customs officer actually observes the vessel crossing the border, he will usually have no way of detecting whether a border crossing has taken place.
Sandra Day O'Connor: You think that the foreign registration of the vessel would not be sufficient, I mean, the obvious markings from the outside of the vessel showing it's a foreign vessel?
Samuel A. Alito, Jr.: Well, we believe that any foreign... persons on any foreign vessel within United States waters have no legitimate expectation of privacy, at least with respect to their documents.
Sandra Day O'Connor: Would that fit within a traditional border search exception as cause to believe that the vessel had had foreign contacts?
Samuel A. Alito, Jr.: Your Honor, I hesitate to analogize this too closely to border searches on land, because the sea is simply not like the land.
William H. Rehnquist: Well, how about border searches of airplanes? You can make a border search of an airplane at an airfield in Chicago, can't you?
Samuel A. Alito, Jr.: Well, that's correct, and with an airplane you can usually detect on radar whether it has in fact crossed the border, and with scheduled airlines, you know in advance where they are coming from. There is no way of gathering analogous information concerning a vessel. And that is one of the reasons why suspicionless boardings and inspections are necessary. When a vessel enters U.S. waters, there is really no way of knowing where it is coming from, what it is carrying, and whether it has complied with any of the--
Byron R. White: Mr. Alito, what particular document or documents did this particular sailing vessel need, even though it was from... even if you believed it was from a foreign country?
Samuel A. Alito, Jr.: --Well, if it was a foreign vessel, of course, it would have foreign... it would have foreign documents. Now, this was a vessel--
Byron R. White: What documents?
Samuel A. Alito, Jr.: --Each country has its own documentation system. This was a French-registered vessel bearing Swiss markings. I don't know what--
Byron R. White: All right. What documents... Did that vessel need any document required by United States law?
Samuel A. Alito, Jr.: --As soon as it entered Customs waters, it was required to report its arrival promptly to Customs, and if it was to go any further, it would need a cruising license, or else it would have to make entry again--
Byron R. White: Well, of course, it hadn't entered the United States yet.
Samuel A. Alito, Jr.: --It had entered Customs waters and--
Byron R. White: I am just asking you again, at the point where the vessel was boarded, what document were you looking for?
Samuel A. Alito, Jr.: --We were looking for its basic foreign registry documents, where was it registered, what sort of vessel was it.
Byron R. White: And that is permitted under the federal statute?
Samuel A. Alito, Jr.: That's correct. The federal statute authorizes an inspection of any documents.
Byron R. White: And are documents like that sort of mobile, or are they attached to a vessel somewhere, or are they... can you hand them around, or what?
Samuel A. Alito, Jr.: I think this may vary from country to country. For federally documented vessels, they are pieces of paper that are usually kept in the bridge. On a numbered American boat, there is a small certificate of number which is sometimes--
Byron R. White: What if this gentleman had said, yes, he understands English, and you want some documents, I shall hand you the document, and don't board my boat?
Samuel A. Alito, Jr.: --Well, I think it is often if not usually impractical to do that without boarding the boat.
Byron R. White: Why is that?
Samuel A. Alito, Jr.: Because boats rock back and forth and hit each other.
Byron R. White: Well, how about the captain boarding your boat?
Samuel A. Alito, Jr.: Well, he may do that, perhaps.
Byron R. White: Despite the rocking back and forth?
Samuel A. Alito, Jr.: He may do that perhaps, but part of--
Byron R. White: What if he said to you, I will board your boat and bring my documents?
Samuel A. Alito, Jr.: --Well, I don't know what their response would be in a specific case, but part of--
Byron R. White: I know, but what would be your response for the United States if he said that and he said, stay off my boat, but I'll bring you my document?
Samuel A. Alito, Jr.: --Well, I think that it would be reasonable first to inspect the documents, and then after doing so--
Byron R. White: Right, and if they complied, you wouldn't board his boat, would you?
Samuel A. Alito, Jr.: --Well, part of a documentation inspection is examining the main beam number, which necessitates a visit to a portion of the hold.
Byron R. White: Now, is that for a foreign vessel at 18 miles from the coast? Is that required, that you look at the beam number?
Samuel A. Alito, Jr.: It is required to make a satisfactory identification of the vessel. I believe it is part of the standard procedure in checking the documentation of a foreign vessel. Otherwise, there is no reliable way of knowing what sort of vessel this is.
Byron R. White: So there is a statute or some regulation that says, please look at the beam numbers?
Samuel A. Alito, Jr.: There is a statute, 19 USC 1581(A), that authorizes Customs officers to board any vessel in any part of the United States to check its documents and to examine the vessel. That would entail the authority to examine the documents and check the main beam number.
Byron R. White: Where did you get that latter authority, to check the beam number? You don't need--
Samuel A. Alito, Jr.: It authorizes--
Byron R. White: --It is done in a regulation?
Samuel A. Alito, Jr.: --It is in a statute, and in the regulations, but it is--
Byron R. White: To examine the beam number?
Samuel A. Alito, Jr.: --It says, to search the vessel.
Byron R. White: To examine... search the vessel for a beam number, or what?
Samuel A. Alito, Jr.: It says, it conveys the broad power to--
William J. Brennan, Jr.: Where is the statute?
Samuel A. Alito, Jr.: --The statute is reproduced in the appendix to our brief.
William J. Brennan, Jr.: What page?
Samuel A. Alito, Jr.: Page 1-A.
Warren E. Burger: Let me pursue this, not on a little sailing vessel down there, but a British or a Swedish or a Norwegian or a Dutch vessel comes into the New York harbor. Before they can open a hatch or discharge a passenger or do anything, our people board it and look at the papers, do they not, and they are permitted by statute to do it, and they can inspect the ship from stem to stern and top to bottom. Is that not so?
Samuel A. Alito, Jr.: That is absolutely correct. That is true with any foreign vessel entering a port.
Warren E. Burger: It doesn't make any difference whether it is a 40-foot sailboat or a 300-foot cruise vessel?
Samuel A. Alito, Jr.: No, I would suppose that someone attempting to set the record for the smallest vessel to make a trans-Atlantic crossing would be subject to those entry requirements.
Warren E. Burger: And this includes the health officers, and the Customs officers, and a whole range of people, does it not?
Samuel A. Alito, Jr.: That is correct, and that is why a vessel like the Henry Morgan II cannot have any legitimate expectation of privacy in U.S. waters. On a vessel like that, Customs is expressly authorized by statute to put someone on board and leave him there as long as the vessel is in U.S. waters. Now, as I was saying, inspection of the vessel's documents is vitally important in performing all of these important national functions, and this is so because there is simply no other way of effectively enforcing the documentation laws. The markings on vessels, as we have attempted to show in the brief, are simply not satisfactory. They can be easily falsified. They are not very revealing, especially in the case of a foreign vessel, and even in the case of an American vessel, they do not disclose very much. Respondents have suggested a number of alternatives, but I want to stress that none of these would be satisfactory. Certainly hailing a vessel, as they suggest, is no substitute for looking at the documents, because it requires the Customs officers to take the word of the persons on board. Checking the documents only in the case where there is reasonable suspicion of a border crossing, as I have tried to show, is also not acceptable, nor is it satisfactory to check with the documentation office by radio, for a number of reasons, including the fact that the information available from that office is severely limited.
Byron R. White: Your argument then certainly isn't limited to vessels who you see on the stern may come from a foreign port. It is just any vessel anchored 18 miles from--
Samuel A. Alito, Jr.: Well, that's correct, but what is at issue--
Byron R. White: --Isn't that right?
Samuel A. Alito, Jr.: --what is at issue here is the search... is the boarding and document check in this particular case, which involved such a large sea-going foreign vessel. It wouldn't be necessary to address other applications, but certainly--
William J. Brennan, Jr.: Are you suggesting, Mr. Alito, that your asserted power to board without reasonable suspicion would not apply in the case of boats not capable of going to sea, for example, like river barges and such?
Samuel A. Alito, Jr.: --I am not asserting that that authority would not apply in those instances, because Customs has enforcement responsibilities--
William J. Brennan, Jr.: Even if it is a barge incapable of going to sea?
Samuel A. Alito, Jr.: --I think that--
William J. Brennan, Jr.: You say they could board those under this statute?
Samuel A. Alito, Jr.: --Yes, they could. Customs has the responsibility for--
William J. Brennan, Jr.: And would it make any difference, for example, if it is on waters that don't empty into the seas, a lake or something like that? They can still do all this?
Samuel A. Alito, Jr.: --It would... I believe the authority would extend to any navigable waters of the United States, because Customs has the... has enforcement authority that goes beyond policing the entry of goods coming from abroad, although that is perhaps their most highly visible responsibility. They also have the duty to enforce all the shipping and navigation laws, and this would justify boarding many miles further inland than the one in this case. But I want to stress that, of course, it is only the situation here that is at issue. Let me now explain very briefly why suspicionless boardings and inspections of vessels entail a much lesser intrusion upon protected privacy interests than land inspections to which they are sometimes compared. First of all, when a documentation check is made, a vessel is detained only briefly, if at all. The inspecting... the boarding officer does not search the whole vessel. He only searches the documents and makes a visit to the hold to look at the main beam number if that is appropriate based on the type of vessel. He doesn't search the cargo or the cabins or the passenger compartments.
Sandra Day O'Connor: Is the underlying basis for this authority the authority of the United States to govern entry into this country from beyond our borders of foreign goods and vessels?
Samuel A. Alito, Jr.: That is one of... That is one of the bases for this authority, but--
Sandra Day O'Connor: Is that the primary thrust?
Samuel A. Alito, Jr.: --It is the primary, but not the exclusive basis. As I was saying--
Sandra Day O'Connor: It is just hard for me to understand how it should extend, for instance, to a full right to board and search a small pleasure boat on an inland lake.
Samuel A. Alito, Jr.: --Well, we are specifically not making that argument, but I think it is also important to recognize that any rule that would draw a distinction between commercial and non-commercial vessels would be extremely unworkable.
Sandra Day O'Connor: How about a rule that is limited to the open seas or adjacent waterways and Customs--
Samuel A. Alito, Jr.: That isn't what is involved in this case. And that--
Sandra Day O'Connor: --Yes, but you are arguing for a much broader rule, if I understood you correctly. You certainly did in answer to my question.
Samuel A. Alito, Jr.: --We are arguing for a much broader rule, but in this case all that is involved is a vessel located, as I said, a relatively short distance from the coast. We think that the necessity for suspicionless boardings and document checks is most important in that area, but the statute authorizes boardings and inspections in other areas, and I am not prepared to say that to the extent it goes further than what was necessary here, the statute is unconstitutional.
Warren E. Burger: In any event, we haven't got a lake case here today, have we?
Samuel A. Alito, Jr.: That's right. We have a 40-foot foreign vessel, I want to stress, located not very far from the coast, and although it is masquerading as a pleasure vessel, in fact, it is engaged in a very lucrative, although illegal, trade. It is carrying a $7 million cargo. This is not a pleasure vessel, and a rule that tried to draw a distinction between pleasure vessels and commercial vessels would be subject to just this sort of abuse. People engaged in violations of the documentation laws would use the sort of vessels that are commonly employed for recreational purposes, and would document them for recreational use. The invasion of privacy involved in stopping a vessel and conducting a document check is significantly different from what is involved in conducting a discretionary vehicle stop on land. First, and probably most important, vessels simply do not play the same central role in the lives of the average person as a passenger car does. I suspect that most of the people in Court today used a passenger car this morning, and they will use one tonight. I doubt that many people here used a vessel or will use one later in the day. Land vessels have not historically been subject to the same close regulation as... excuse me. Land vehicles have not been subject to the same close supervision as vessels. In fact, the early statutes from which Customs authority derives specifically required probable cause or reasonable suspicion for searches on land. In sum, the important interests served by the documentation laws in our judgment far outweigh their minimal intrusion upon privacy interests, and for that reason Customs' long-standing authority to conduct suspicionless boardings and inspections should be sustained. Thank you.
Warren E. Burger: Mr. Ieyoub.
Richard I. Ieyoub: Mr. Chief Justice, and may it please the Court, Your Honors, the boarding of the Henry Morgan II was pursuant to 19 USC 1581. This statute grants government agents broader powers of search and seizure than any statute which has previously come before the Court for constitutional consideration. It is even broader than the statute that was before the Court in Brignoni-Ponce, because in that particular situation there was at least a geographic limitation on the powers of border controls to conduct roving and random patrols and stops of vehicles near the border with Mexico. There are absolutely no limitations within the statute on the powers of Customs agents to seize or search vessels and vehicles. The agents may stop, board, and search any vessel, any time, any place in the United States. Therefore, the time, place, manner, and scope of the boarding and search of the vessel is left to the unbridled discretion of the agent in the field, which this Court has always considered as an evil in this type of case. The holding of the Fifth Circuit Court of Appeal was that the reasonableness standard of the Fourth Amendment required that Customs agents possess a reasonable suspicion of a law violation before boarding a vessel in inland waters pursuant to 19 USC 1581. There was a limitation on these broad powers that were placed... that Customs agents enjoyed placed on it by the Fifth Circuit. I think very definitely that the true nature of this particular patrol is important in this case. First of all, insofar as the facts are concerned, this patrol was instigated and executed because of information which a Customs agent had received on the prior day, on March 5th, 1980, that there were two vessels in the Hackberry, Louisiana, area laden with marijuana. Pursuant to that information, this patrol was formed, which included not only U.S. Customs agents, but included Louisiana State Police narcotics agents. In fact, this was not a mere administrative search for documents. This was clearly an investigatory, a criminal investigatory search that was made in order to obtain evidence to substantiate a criminal prosecution.
William H. Rehnquist: If the government is right, and I realize you argue they are not, that suspicionless boardings are permissible under the statute and don't violate the Constitution, what difference does it make what motive the investigators had?
Richard I. Ieyoub: Your Honor, I think it is very significant, because if the search was primarily one to obtain criminal evidence to support a criminal prosecution, the competing interests of the government and the individual are changed.
William H. Rehnquist: Well, do you have any finding from either the District Court or the Court of Appeals that the search was primarily to obtain incriminating evidence?
Richard I. Ieyoub: Only... only the facts that were adduced at the trial, Your Honor, indicates that. As I stated, the patrol was formed basically--
William H. Rehnquist: But, I mean, I asked you, did either of the lower courts make a finding such as you are now saying apparently should have been made?
Richard I. Ieyoub: --No. I don't think that either of the lower courts did that, Your Honor.
Warren E. Burger: Were they asked, requested to? Do you know?
Richard I. Ieyoub: I don't think they were requested to do so, Your Honor, but the testimony that was taken at trial clearly reflected that--
Byron R. White: If you have to win based on having us accept a fact like that, you may be in trouble. Your real case is that whatever the reason, this boarding was improper. Whether it was an administrative or any other kind of a boarding, it was improper.
Richard I. Ieyoub: --That's correct, Your Honor.
Byron R. White: Isn't that what you really have to say?
Richard I. Ieyoub: That is really what I am emphasizing here. Well, in that respect, I wanted to bring out, however, the true nature of it, because this Court on many other occasions--
Byron R. White: Well, how do we know? How do we know whether it is the true nature of it? We don't have any findings about that.
Richard I. Ieyoub: --I think the objective facts of this particular case indicate that it was a criminal search. First of all, the presence of the Louisiana narcotics agents in the patrol, his presence can only be explained by the very fact that it was a criminal search seeking to obtain evidence for a criminal prosecution. There is no other explanation for his presence there except that fact. And as I stated before, they were looking for marijuana. That was the reason why the patrol was ever formed, and why the boarding was executed.
Warren E. Burger: Do you suggest that the state police of the border states haven't any right to cooperate with federal Customs people and the FBI and whatnot in keeping drugs out of the country?
Richard I. Ieyoub: They certainly, Your Honor, do not have the right to board under 19 USC 1581. There is a federal statute which was cited by the government, I think 19 USC 507. However, this particular statute, the very nature of it indicates that Congress intended that any assistance given by a person to Customs agents in that particular respect was for the furtherance of a criminal search, or a search in criminal cases. So, at least under the federal regulations or federal statutes, state narcotics agents do not have the right to board a vessel.
Thurgood Marshall: Did the narcotics agent testify?
Richard I. Ieyoub: Yes, he did, Your Honor.
Thurgood Marshall: Did you ask him that question?
Richard I. Ieyoub: I did not specifically ask him that question.
Thurgood Marshall: Well, if you did, you could have found out, couldn't you?
Richard I. Ieyoub: Yes, I could have, Your Honor.
Thurgood Marshall: So you didn't ask, and you ask us to draw a conclusion.
Richard I. Ieyoub: Well, Your Honor, he--
Thurgood Marshall: Which you could have brought out of the witness.
Richard I. Ieyoub: --Correct. His testimony did indicate, however, that they were looking for marijuana. His testimony did indicate that. But--
Thurgood Marshall: Indicate is enough?
Richard I. Ieyoub: --I am sorry, Your Honor?
Thurgood Marshall: Indicate is enough?
Richard I. Ieyoub: I think in this case if you take all of the facts as they are presented, and as the testimony indicated, that it should lead to a conclusion, Your Honors, that it was in fact a criminal investigatory search.
Warren E. Burger: Do you say that when these officers stood on the deck of this craft, they were there illegally?
Richard I. Ieyoub: Absolutely, Your Honor.
Warren E. Burger: And when they detected the odor of burning marijuana, they could not legally do anything about it?
Richard I. Ieyoub: Well, that--
Warren E. Burger: Or could they take the vessel in tow, and take them to a United States magistrate and get a warrant?
Richard I. Ieyoub: --I think they could have done that, Your Honor. The question, I think, in this case was whether or not the boarding was legal, and not whether or not... although I did contest that the search that took place after the boarding was illegal. The Fifth Circuit did not decide that particular question. The Fifth Circuit only held that the boarding itself was unreasonable under the Fourth Amendment.
Byron R. White: Because of the lack of some kind of reasonable suspicion.
Richard I. Ieyoub: That's correct. That's correct, Your Honor. The situation... even if we assume that the government, as the government contends, that the boarding in this case was purely an administrative documentation check, only in very unique and limited circumstances may even an administrative inspection or search of private premises be accomplished with an administrative warrant... without an administrative warrant or without a valid substitute therefore. I think the government tried to argue that this particular inspection fell under the Colonnade-Biswell exception. But this particular exception was a very narrow exception to the general rule, which requires a warrant for administrative inspections of residential and commercial premises. The exception allowed warrantless regulatory searches of a pervasively regulated business to further an urgent federal interest, by statute. However, the statute is very limiting in these particular types of cases. The statute limits the time, scope, and place of these types of searches, and unless you have a valid statute which carefully and narrowly limits these particular inspections, then you need either an administrative warrant or some substitution for an administrative warrant, which we suggest in this case would be a reasonable suspicion of a law violation.
Sandra Day O'Connor: Are there different factors that play, though, when you are dealing with vessels on open waters which just don't lend themselves to staying put long enough to go get your administrative warrant?
Richard I. Ieyoub: Your Honor, I think insofar as that is concerned, that vessels, with respect to your particular answer, vessels are not that much different in mobility certainly than automobiles are.
Sandra Day O'Connor: Well, but, of course, with vessels we don't have roads. They go anyplace that there is open water, and it makes it... you can't put up a roadblock, like you could for automobiles, to check registrations and licenses.
Richard I. Ieyoub: Well, in--
Sandra Day O'Connor: So how do you deal with that?
Richard I. Ieyoub: --Well, in United States versus Demanett, which was a lower court case, they were faced with that particular proposition. In fact, the same proposition has been cited by the government here. And that particular court held, there has to be some way other than complete unbridled discretion in the hands of the agent in the field. They did not rule out some type of border or some type of check point search. They did not rule that out. And certainly in the Calcasieu Ship Channel, which is not a very wide body of water at all, there certainly could have been that type of thing in the Calcasieu Ship Channel, where this particular vessel was sited. There could have been a check point type situation. Besides that, insofar as the documentation checks go, and insofar as the documentation laws and other regulatory objectives of this particular statute go, the minimal or the minimum... it certainly would not benefit that much, random, suspicionless, warrantless boardings of vessels would not necessarily benefit the documentation laws to such an extent that it would outweigh the tremendous possibility of abuse and threat to the privacy of the individual that this statute allows. I think in Biswell, the Court stated that if the statute offers a great possibility of abuse, and there is a tremendous threat to the privacy of the individual, then you cannot fall within the Colonnade-Biswell exception.
Warren E. Burger: How would a check point be less of an intrusion on privacy? And you have just conceded that a check point could have been set up along this waterway.
Richard I. Ieyoub: Yes, Your Honor. I am using the rationale that the Court used in--
Warren E. Burger: How would there be less intrusion of the privacy if the Customs boat had pulled alongside and said, 200 yards north there is a check point, pull your craft in for inspection?
Richard I. Ieyoub: --Well, first of all, the check point can be seen by all the vessels. There is less of a subjective intrusion. There is less fear that might be engendered when you see a check point where other vessels are being stopped. There is a regular pattern that is followed in stopping all of the vessels that may be coming into a particular point. And in that respect, it follows the Martinez-Fuerte rationale, that permanent check points are not as much an intrusion into the privacy of the individual as a roving patrol that makes random suspicionless searches. And that is the difference between the check point and any of... the random searches.
Warren E. Burger: But for the check point, they could have the stop and the search without suspicion?
Richard I. Ieyoub: I think so. Yes, Your Honor. I think if you had a regular, a set check point, that that might be all right under the Martinez-Fuerte rationale.
Thurgood Marshall: A check point in the canal?
Richard I. Ieyoub: Yes, Your Honor. At least they could have in this--
Thurgood Marshall: Have you ever seen one?
Richard I. Ieyoub: --No, I have never seen one, Your Honor. That is an alternative that would be available. But certainly there has to be some alternative other than subjecting every person that is in inland waters lawfully, either for recreational purposes or vacational purposes, to random, suspicionless, dragnet-type searches.
Sandra Day O'Connor: Well, now, this isn't really the inland water situation, though, here, is it? It is the extension of the open sea, and in Customs waters, as I understand it.
Richard I. Ieyoub: Well, Your Honor, this--
Sandra Day O'Connor: Isn't that right?
Richard I. Ieyoub: --Well, yes, that's correct, but--
Sandra Day O'Connor: And you would also agree that there is no real right of privacy, is there, for anyone entering our borders from abroad?
Richard I. Ieyoub: --Insofar as the border search is concerned, Your Honor, there is no right to privacy, and that has been historically true, and the decisions of this Court have so held for many years, but this was not a border search, and insofar as this particular body of water was concerned, it covers an area of 35 statute miles from Lake Charles, Louisiana, to the coast of Louisiana. This vessel was 18 miles inland, and there are many pleasure vessels that ply that particular waterway. There definitely is, but--
Warren E. Burger: And as someone pointed out, Chicago or Minneapolis-St. Paul are thousands of miles away from the Mexican border, but a plane from Acapulco has got to stop and be boarded and inspected completely when it makes its first landing in the United States.
Richard I. Ieyoub: --Well, I think, Your Honor, in that particular case, though, you have a set point of Customs or border inspections. I think in this particular case the border rationale would be applicable. In that case, if they flew from a foreign country and landed at a particular point in the United States, where there were regular inspections and regular searches, I think the border search rationale would apply, as it did in Ramsey. In Ramsey--
William H. Rehnquist: What if a plane was sited by Customs officials on the Arizona-Mexican border as coming in from Mexico, and they were able to trace it by radar, say, to simply a small landing field in northern Arizona, northern New Mexico. Do you think those Customs officials, if they were able to wire their compatriots wherever it landed, would have to have some sort of a warrant or reasonable suspicion before inspecting that plane?
Richard I. Ieyoub: --Well, in that particular case, Your Honor, it would, first of all, seem very unusual for a very small plane to be flying in from Mexico and flying at a very--
William H. Rehnquist: Let's accept my factual hypothesis, if you will. And it isn't unusual. It isn't unusual at all.
Richard I. Ieyoub: --Well, it may not be unusual, however, I think, but those particular facts might give rise to a reasonable suspicion of a law violation, and--
William H. Rehnquist: Well, I don't know why that would be, but supposing the government didn't argue any law violation, they just said, we can make a suspicionless inspection in the nature of a border search here, even though you are 400 miles from the border.
Richard I. Ieyoub: --Well, I think in a particular situation where there is a plane, and a plane is different than, I think, a vessel in this particular case. If a plane flies in from Mexico into the United States, and even if it is 400 miles from the border, I think the border rationale, the border search rationale could apply.
William H. Rehnquist: So if Customs officials had seen your client's boat crossing the three-mile limit or 12 miles, whatever it is in Louisiana, they could have stopped it there?
Richard I. Ieyoub: Yes, I think so, Your Honor, because the Fifth Circuit has held that way. In fact, I think it was in United States versus Whittaker in the Fifth Circuit, the Customs agent sited the vessel off the coast, and kept it under surveillance, and during the course of the surveillance there were certain articulable facts which were generated because of the nature of the boat, the type of the spray that it was throwing, the sluggish nature of its movement. They followed her inland and then boarded her, and the Fifth Circuit said, that's fine. You can do that, because you saw the border crossing. The Fifth Circuit in this case just held that there was absolutely no evidence to establish a border crossing here.
William H. Rehnquist: Even though in fact it turned out that the boat had crossed the border.
Richard I. Ieyoub: That's correct. There was absolutely no facts. When the boat was initially sited, Your Honor, it was anchored. It was anchored 18 miles inland in the Calcasieu Ship Channel. The sails were furled. There were no persons on board. There was absolutely no activity whatsoever.
William H. Rehnquist: Is that what shows as Lake Calcasieu on the roadmap?
Richard I. Ieyoub: I am sorry, Your Honor?
William H. Rehnquist: Is what you call the Calcasieu Ship Channel what shows as Lake Calcasieu on the roadmap, or is that further up? It is--
Richard I. Ieyoub: It is very close by, Your Honor. It is not the Calcasieu Ship Channel, but it is very close by, and Officer Wilkins, incidentally, testified that there are hundreds of pleasure vessels in Calcasieu Lake which would have access to the Calcasieu Ship Channel.
William H. Rehnquist: --I suppose they are two... The ship channel and the lake are two separate things?
Richard I. Ieyoub: That's correct, Your Honor.
Warren E. Burger: What papers in fact were found on this craft when they boarded? What kind of papers?
Richard I. Ieyoub: I think it was just a registration, Your Honor, I think, that... showing where the vessel was purchased, where the vessel was made and where the vessel was purchased. There is something, I think, that is very interesting here. One of the officers testified at trial that the decision was made before they even started the patrol that every vessel in the Calcasieu Ship Channel was going to be boarded. They didn't care whether or not--
Byron R. White: Well, how does that help you? 0 [Generallaughter.]
Richard I. Ieyoub: --Your Honor, it helps me, I think, Your Honor, in showing that there is a tremendous amount of possibility of abuse.
Byron R. White: It is just like a roadblock.
Richard I. Ieyoub: Well, no, Your Honor--
Byron R. White: We're not going to pick and choose. We're going to... everybody in sight is going to have a document check.
Richard I. Ieyoub: --Well, in a random--
William H. Rehnquist: I thought you said that would be all right.
Richard I. Ieyoub: --A random search, Your Honor, is what it was. A random patrol.
Byron R. White: Random? It isn't random at all if you're going to stop every vessel you see in that lake. Nothing random about that.
Richard I. Ieyoub: Well--
Byron R. White: It's like setting up a roadblock and saying, everybody who goes through this roadblock is going to have to show his registration certificate.
Richard I. Ieyoub: --Well, but there is not the regularity that a roadblock would have. People would not be able to see that other vessels were being stopped necessarily. They were roaming the entire area of the Calcasieu Ship Channel, 35 miles.
Byron R. White: Stopping everybody in sight?
Richard I. Ieyoub: Well, that was their purpose. The record doesn't reflect whether or not they actually did. But they did site this particular vessel. But the broadness of this particular statute is very important, because the Court has always held that whenever there is unbridled discretion in the hands of the officer in the field, then you have a problem here, and this particular statute does not make any provision whatsoever concerning the procedures that are to be used when these boardings take place. Now, the government has said, well, this boarding only deals with the weather decks or the places that you can see. The statute doesn't say that. The statute simply says that you can board and examine the documents and the manifest. You can board and inspect and search the vessel.
William H. Rehnquist: But what you are challenging is the application of the statute to your particular case, isn't it? I mean, you can't call up a bunch of hypotheses that might occur under the statute that didn't happen in this case to urge a court to conclude that what happened in this case was wrong.
Richard I. Ieyoub: No, Your Honor, I am challenging it as it was--
Byron R. White: You would have to show to win that the boarding was unconstitutional.
Richard I. Ieyoub: --It was unreasonable under the Constitution, Your Honor.
Byron R. White: You have to show that, don't you?
Richard I. Ieyoub: I'm sorry, Your Honor?
Byron R. White: You have to show that the boarding was unconstitutional.
Richard I. Ieyoub: That's correct. The basis... What was the basis of the particular... what was the constitutional basis of the search? The government is saying that--
Byron R. White: Of the search? Of the boarding.
Richard I. Ieyoub: --Of the boarding. I'm sorry, Your Honor. Of the boarding. That's correct. They're saying, well, this was an administrative documentation check. But the rule is that unless it falls under a very narrow exception, a search of private property must be conducted either with an administrative warrant or a substitution, or--
Byron R. White: Congress has said that that doesn't... that... here is what we think is reasonable under the Fourth Amendment. You should be able to board any vessel for a documentation search.
Richard I. Ieyoub: --Well, but Congress cannot authorize the violation of the Constitution.
Thurgood Marshall: I agree with that, but at least-- --They didn't board to search. They did not board to search. They didn't search until they saw in plain view the contraband, did they?
Richard I. Ieyoub: Well--
Thurgood Marshall: Is that what the record shows?
Richard I. Ieyoub: --The record shows that they boarded... I contend that they boarded in order to conduct a search.
Thurgood Marshall: I'm talking about... not you. I'm talking about the record.
Richard I. Ieyoub: Well, the record would show that, too, Your Honor, but they did board, and then supposedly they saw... they smelled marijuana, looked toward the hold, and there were some burlap sacks.
Thurgood Marshall: Have you anything to dispute that they did that?
Richard I. Ieyoub: No, I don't have anything to--
Thurgood Marshall: Well, why do you say supposed?
Richard I. Ieyoub: --I'm sorry, I didn't hear Your Honor.
Thurgood Marshall: Why do you say supposed?
Richard I. Ieyoub: No, that is what... that's what the testimony, that's what the testimony reflected.
Thurgood Marshall: That's what they did.
Richard I. Ieyoub: Yes, Your Honor.
Thurgood Marshall: So they didn't board to search. They searched after they saw.
Richard I. Ieyoub: That's correct.
Thurgood Marshall: And what is wrong with that?
Richard I. Ieyoub: Well, the boarding itself. The boarding itself.
Thurgood Marshall: Well, if they'd passed by the boat and had smelled it, could they have boarded it then?
Richard I. Ieyoub: Very possibly they could have boarded, yes.
Thurgood Marshall: Well, couldn't they very possibly have done it here?
Richard I. Ieyoub: Well, the record absolutely doesn't reflect that they smelled it before they boarded the vessel, Your Honor.
Thurgood Marshall: You know, I am with you on one point. I don't understand these crooks that always leave everything out in plain view. 0 [Generallaughter.] But the record shows it was in plain view. That's what the record shows.
Richard I. Ieyoub: The record does show that--
Thurgood Marshall: And I don't see how you can get away from that. They had a right to look for the papers of that boat. They had that right.
Richard I. Ieyoub: --That's correct.
Thurgood Marshall: And while they were looking for the papers of the boat, they saw marijuana on every place except nailed to the mast.
Richard I. Ieyoub: I am saying, Your Honor-- 0 [Generallaughter.] I am saying, Your Honor, they didn't have the right to board the vessel in the first place. They didn't have the right to board the vessel--
Thurgood Marshall: To look to see whether it was papered or not?
Richard I. Ieyoub: --Even an administrative search.
Thurgood Marshall: Do you have a right to stop a car to see if it is registered?
Richard I. Ieyoub: Not at random. Not roving patrols, of border patrols. In Brignoni-Ponce the Court made that very clear. Because you are subjecting numerous people who are lawfully on the highways to interruption of their freedom of passage, and that's what happens when you have this random border patrol.
Thurgood Marshall: Or right to travel.
Richard I. Ieyoub: Or right to travel. Absolutely, Your Honor. Right to travel. Right to be free from arbitrary governmental interference in your passage.
Thurgood Marshall: This man... there's only one man on the boat. He couldn't speak English. He had the right to travel?
Richard I. Ieyoub: Well, that's correct. He's covered under the Fourth Amendment.
Thurgood Marshall: Where did he come from?
Richard I. Ieyoub: I think he came from Colombia.
Thurgood Marshall: You don't even know.
Richard I. Ieyoub: Colombia, Your Honor. Colombia. He did come from Colombia. But just because the government says, well, we have a right to inspect documentation, doesn't mean that that is going to be constitutional. It doesn't mean that they have carte blanche just to stop either any vessel or either... or vehicle just to check the documentation.
Thurgood Marshall: Could he stop by, take his bullhorn, and say, have you got papers?
Richard I. Ieyoub: Well, if it entailed--
Thurgood Marshall: Could he say that?
Richard I. Ieyoub: --It depends on whether it was a stop.
Thurgood Marshall: Is that interfering with him?
Richard I. Ieyoub: It is interfering. It depends--
Thurgood Marshall: Could he?
Richard I. Ieyoub: --Not unless he had a reasonable suspicion initially to make the stop. The issue is, can the stop be made?
Thurgood Marshall: Well, here he had already stopped.
Richard I. Ieyoub: He had already stopped.
Thurgood Marshall: Is that right?
Richard I. Ieyoub: Yes, he was anchored.
Thurgood Marshall: Well, could he have asked him, do you have papers?
Richard I. Ieyoub: I think that would be a minimal intrusion.
Thurgood Marshall: Over the bullhorn, could he do that?
Richard I. Ieyoub: I think that would definitely be a minimal intrusion.
Thurgood Marshall: Thank you for agreeing to one point.
Richard I. Ieyoub: Yes. Yes, Your Honor. What I think that the government is trying to do in this particular case is convert 19 USC 1581 into a writ of assistance that gives Customs agents total power to do anything they want insofar as vessel checks are concerned without any Fourth Amendment or constitutional constraints, and that's what they're trying to do in this particular case. And the possibility that this will lead to abuse is very real. They don't have the right to conduct random, suspicionless, warrantless stops, whether it be for a documentation check, or for a safety check, or what have you. The Fourth Amendment does apply here. The standard of reasonableness applies. And I think this Court has recognized in numerous cases, in Brignoni-Ponce, in Almeida-Sanchez, and other cases, that the random... this discretion, the unbridled, unconstrained discretion in the hands of the officer in the field is what is very important insofar as the application of the reasonableness standard to the Fourth--
Byron R. White: Do you think this is the same rule whether it was three miles from the... two miles from the coast, three miles from the coast, 18 miles from the coast, or 100 miles? A million?
Richard I. Ieyoub: --Well, I think insofar as three miles from the coast is concerned, Your Honor, that there could have possibly been a border type... a border search rationale applied.
Byron R. White: Why?
Richard I. Ieyoub: Well, I think if it is that close to--
Byron R. White: Well, it is close. It is close.
Richard I. Ieyoub: --I think it can be a matter of degree. If you are right at the coast, if you are one mile--
Byron R. White: You mean, you have already crossed the border.
Richard I. Ieyoub: --That's correct.
Byron R. White: Any time you cross the border, you can search? You can not only board, you can search the entire vessel?
Richard I. Ieyoub: Not any time you cross the border, Your Honor, no. If there--
Byron R. White: Why not? Within three miles, say.
Richard I. Ieyoub: --Well, I'm just... I'm just saying that there's a possibility the Court of Appeal might have found that this... if it had been three miles, or closer to the border, there may have been a border search rationale applied, because--
Byron R. White: Let's suppose it wasn't Customs. The state, the state says, any time you cross our border, you have to be searched.
Richard I. Ieyoub: --No, that would be unreasonable, Your Honor. That would be unreasonable under the Fourth Amendment.
William H. Rehnquist: Do you think it is unreasonable for a state to put up an inspection station at its border and search for citrus that may cause plant disease in that state?
Richard I. Ieyoub: No, Your Honor. Not a permanent check point or an inspection station. No, I do not think that would be unreasonable.
Byron R. White: I know, but a vessel, it can unload anywhere along the beach, and here is a... here is the state's border, three miles out in the ocean, or nine miles, some places in the Gulf, and the vessel has crossed the border of the state. You don't know where it's going to tie up.
Richard I. Ieyoub: Well, Your Honor--
Byron R. White: It may go into some... it may just unload. It just may anchor 50 yards off the coast and unload.
Richard I. Ieyoub: --That's correct.
Byron R. White: Don't you think the state could stop that and insist on a search to see if it is carrying something that is contrary to state law?
Richard I. Ieyoub: Well, I think... Your Honor, I think that might be unreasonable under the Fourth Amendment. Certainly, they--
Byron R. White: Assume it isn't. Assume for the minute it isn't. What is the border of the United States?
Richard I. Ieyoub: --I would say the border of the United States, the coast of the United States, is three miles... there's a--
Byron R. White: What's the border? What is the outer boundaries of the United States?
Richard I. Ieyoub: --I think it's three miles off the coast, Your Honor, if I'm not mistaken.
Byron R. White: Of the United States?
Richard I. Ieyoub: I think so.
Byron R. White: And what--
Richard I. Ieyoub: It's Customs waters. I think that's referred to Customs waters, if I'm not mistaken.
Byron R. White: --Well, that's... you mean the Customs waters is three miles?
Richard I. Ieyoub: If I... I think so. I'm not sure about that point, Your Honor. It may be 12 miles off the coast.
Thurgood Marshall: A few minutes ago you said it's all right to stop and search for bugs and things.
Richard I. Ieyoub: At a permanent type check point, Your Honor.
Thurgood Marshall: Well, suppose while they are looking for it they find marijuana.
Richard I. Ieyoub: I'm sorry, Your Honor. I didn't hear you.
Thurgood Marshall: Suppose they find marijuana.
Richard I. Ieyoub: If they find--
Thurgood Marshall: While they were searching the lettuce.
Richard I. Ieyoub: --If they find marijuana, then the person is subject to being arrested and prosecuted.
Thurgood Marshall: What's the difference between that case and this one?
Richard I. Ieyoub: This is a roving patrol, random type search that leaves--
Thurgood Marshall: That's the only difference?
Richard I. Ieyoub: --Well, the only difference, too, Your Honor, is that it is... it was made pursuant--
Thurgood Marshall: The only difference, too?
Richard I. Ieyoub: --No, Your Honor. There is also a difference in that it was made pursuant to a federal statute which grants broad powers of search and seizure which are unreasonable under the Fourth Amendment. This was a random search by a roving patrol, and I think this Court in prior decisions has held that this is unreasonable under the Fourth Amendment. Thank you.
Warren E. Burger: --Do you have anything further, Mr. Alito?
Samuel A. Alito, Jr.: Two very brief points, Mr. Chief Justice. First, if the Court wishes, we will submit a supplemental brief on the issue of whether dismissal of the indictment mooted this case. Second, I want to emphasize--
Thurgood Marshall: Well, on that, will you please put in a copy of your order which the U.S. Attorney filed, the motion to dismiss the indictment?
Samuel A. Alito, Jr.: --Yes, Your Honor, we will look into that.
Thurgood Marshall: It is right here in the record.
Samuel A. Alito, Jr.: Well, Your Honor, as I said, that was done not because they had no further interest in pursuing this case.
Thurgood Marshall: Well, it doesn't say... it just says he's the one. If it hadn't been for him, it wouldn't have been done.
Samuel A. Alito, Jr.: It was done because he wanted to comply with the mandate of the Court of Appeals. The only other... Thank you.
Warren E. Burger: Do you have anything... Your time is not up.
Samuel A. Alito, Jr.: I am sorry. The only other point I would like to add, Mr. Chief Justice, was that the crux of this case is that until a documentation inspection is conducted, it is not possible to know what sort of vessel Customs is dealing with, and that is why it's necessary, and that is illustrated graphically by this particular case. Here, if the Henry Morgan II had been a documented boat from Basilea, Louisiana, or Mississippi, or Alaska, it would have had exactly the same markings, and here, a Customs patrol in a Louisiana ship channel came across a boat that bore the outward markings of a landlocked country 5,000 miles away. The hailing port was written in Latin, and although the vessel bore Swiss markings, it was actually of French registry. Because situations like this come up all the time, it is necessary to conduct a documentation check to determine whether any further procedures, including a full-scale border search, is appropriate.
Byron R. White: Well, in your submission, it sounds like, your most recent one, anyway, is that on the facts of this case, this boarding was all right, but that you aren't pushing for any kind of a rule that you can search any... you can board any vessel that you find anchored 18 miles off the coast.
Samuel A. Alito, Jr.: No, I believe it is necessary to do that, because until you inspect the documents, you cannot--
Byron R. White: So you are saying any vessel you find anchored or under way 18 miles off the coast or any distance off the coast, for that matter, you can stop and make a document check?
Samuel A. Alito, Jr.: --We believe the statute is constitutional, and that is what it provides. I think this case is--
Byron R. White: Well, you are not arguing about the search, I don't suppose.
Samuel A. Alito, Jr.: --Pardon me?
Byron R. White: Are you arguing that the search provision, part of the... is constitutional?
Samuel A. Alito, Jr.: That is not the issue here. All that was conducted here was a document check.
Warren E. Burger: But I take your argument to be, as applied here, it meets constitutional standards.
Samuel A. Alito, Jr.: That's correct. A document check was conducted here, and those are reasonable because they are necessary for enforcing many important national laws. Thank you.
Lewis F. Powell, Jr.: Is the statute limited to Customs waters?
Samuel A. Alito, Jr.: No, it is in any part of the United States or in Customs waters.
Lewis F. Powell, Jr.: I was thinking about the request or suggestion as to whether or not a search could be made 100 miles off the coast.
Samuel A. Alito, Jr.: A search could be made 100 miles off the coast by the Coast Guard pursuant to a different statute which authorizes boardings on the high seas of any vessel subject to U.S. jurisdiction for the purpose--
Thurgood Marshall: There are some cases pending on that, isn't that correct, down in Florida?
Samuel A. Alito, Jr.: --There are many cases pending on that issue, and that authority has generally been upheld by Courts of Appeals based upon reasoning analogous to the arguments we have advanced in this case.
Warren E. Burger: Do you have in mind how many times we have denied certiorari on boardings off the Florida coast and-- --Both ways.
Samuel A. Alito, Jr.: Quite a few. There have been a number of them.
Warren E. Burger: Both ways.
Samuel A. Alito, Jr.: That authority has been sustained by at least three or four circuits, and cert has been denied on numerous occasions.
John Paul Stevens: May I ask one question? I know it has been asked. I am a little... not entirely clear on your answer. Justice Brennan, I believe, asked you, in the Court of Appeals, did you argue that reasonable suspicion was not necessary?
Samuel A. Alito, Jr.: We did in our petition for rehearing.
John Paul Stevens: In your petition for rehearing.
Samuel A. Alito, Jr.: We did not do it initially because of settled Fifth Circuit authority, and because we had won on alternative grounds in the District Court.
John Paul Stevens: Right.
Samuel A. Alito, Jr.: But we raised it in the petition for rehearing.
Warren E. Burger: Thank you, gentlemen. The case is submitted.