United States v. John Walter Piner and Salvatore Joseph Gallina

608 F.2d 358 UNITED STATES of America, Plaintiff-Appellant, v. John Walter PINER and Salvatore Joseph Gallina, Defendants-Appellees. No. 78-2565. United States Court of Appeals, Ninth Circuit. Sept. 5, 1979. Floy E. Dawson, Asst. U. S. Atty., San Francisco, Cal., on brief; Sanford Svetcov, Asst. U. S. Atty., San Francisco, Cal., argued, for plaintiff-appellant. Joel A. Shawn (argued), Kipperman, Shawn, Kecker & Brockett, San Francisco, Cal., on brief; Kim S. La Valley, San Francisco, Cal., argued, for defendants-appellees. On Appeal from the United States District Court for the Northern District of California. Before MERRILL and KENNEDY, Circuit Judges, and KING, * District Judge. MERRILL, Circuit Judge: 1 The question presented here is whether the boarding by the Coast Guard of a boat in San Francisco Bay for a routine document and safety inspection, without warrant and without probable cause to believe or founded suspicion that a violation of the law had occurred, was a reasonable search under the Fourth Amendment. 2 On the basis of marijuana seized on board their boat, appellees were indicted for importation of marijuana, possession with intent to distribute and conspiracy…

The question presented here is whether the boarding by the Coast Guard of a boat in San Francisco Bay for a routine document and safety inspection, without warrant and without probable cause to believe or founded suspicion that a violation of the law had occurred, was a reasonable search under the Fourth Amendment.

On the basis of marijuana seized on board their boat, appellees were indicted for importation of marijuana, possession with intent to distribute and conspiracy to import and distribute, in violation of 21 U.S.C. §§ 952 (a), 841(a)(1), 963 and 846. Their motion to suppress as evidence the seized marijuana was granted by the district court and this appeal was taken by the government under 18 U.S.C. § 3731 . We affirm.

On the evening of January 12, 1978, a United States Coast Guard cutter was cruising the waters of San Francisco Bay on a routine patrol. At approximately 6:30 p.m. the crew spotted the running lights of ap-pellees’ 43-foot sailboat, the “Delphene,” and the decision to board was made. It was stipulated that the only purpose for stopping and boarding was for “a routine safety inspection,” that it was done “on a random basis,” and that “there were no…

dissenting:

I respectfully dissent from this holding, which invalidates authority that has been exercised, and accepted as correct, for almost two hundred years. In addition, this case puts the Ninth Circuit directly at odds with the Fifth Circuit. See United States v. Postal, 589 F.2d 862, 889 (5th Cir. 1979), petition for cert. filed, 47 U.S.L.W. 3829 (U.S. Apr. 14, 1979) (No. 78-1714); United States v. Freeman, 579 F.2d 942, 946-47 (5th Cir. 1978); United States v. Warren, 578 F.2d 1058, 1064-65 (5th Cir. 1978) (en banc). The facts are not in dispute, and this case presents the single issue of the constitutionality of random safety checks by the Coast Guard of pleasure craft being operated within United States territorial waters.

*362 Delaware v. Prouse, 440 U.S. 648 , 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979) is not dispositive of the issue here. Prouse does not establish a rule against all random stops; it concerns automobiles only. In reaching its conclusion in Prouse , the Court “balanc[ed] the public interest against the individual’s Fourth Amendment interests.” Id. at 657 , 99 S.Ct. at 1397-98 . Random safety checks of vessels by the Coast Guard present considerations very…