False Distress Call Results in Serious Criminal Penalties

In March 2012, an aircraft pilot falsely reported observing a fishing boat with four passengers in distress in Lake Erie.  In response to the distress call, the U. S. Coast Guard and the Canadian Armed Forces launched a massive search and rescue mission that lasted over 21 hours.  Substantial costs were incurred by both agencies totaling over a half a million dollars.  During a subsequent investigation, the pilot admitted to the Coast Guard that his report of a boat in distress was fabricated.

The pilot was indicted and later pled guilty to making a false distress call, a felony under 14 USC §88.  In addition to a three month prison term and three years supervised release, the pilot was ordered to pay restitution to the U. S. Coast Guard and the Canadian Armed Forces to the full extent of the expenses they incurred in the search and rescue mission.

Following the formal sentencing, the pilot appealed the assessment of “indirect costs,” such as general overhead that would have been incurred by the Coast Guard irrespective of its response to the false distress report.  He argued that such ordinary expenses were not “losses” contemplated by 14 USC §88(c).  He did not contest his liability for the cost directly attributed to his criminal actions, which included the actual expenses attributable solely to search and rescue efforts.

With little guidance from prior case law on this issue, the U. S. Court of Appeals for the 6th Circuit (based in Cincinnati, Ohio) in United States v. Kumar gave a strict interpretation of the statute and found that it was not limited only to “losses” sustained by the Coast Guard, but rather provided for the recovery of all costs incurred because of the criminal defendant’s actions.  For this reason, the Court of Appeals found that the judgment against the pilot which included the full extent of the costs spent by the Coast Guard, including its indirect overhead expenses, was appropriate.  The appellate court further upheld the judgment requiring the defendant to similarly repay the Canadian Armed Forces.  This aspect of the criminal penalty was not specifically provided for by statute, but was permissible within the trial court’s discretionary sentencing authority.

Note: This article first appeared in WorkBoat magazine, and on WorkBoat’s website.

The Fourth Amendment Rights vs. Boarding Power of the United States Coast Guard

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  Amendment IV, U.S. Constitution, ratified 12/15/1791.

The Fourth Amendment to the U.S. Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause.  It was written in direct response to British general warrants which empowered British law enforcement to search virtually any home, at any time, for any reason, or for no reason at all.

The Coast Guard’s primary law enforcement authority is derived from 14 USC 89 (made law in1949) which states in part, “The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of the laws of the United States for such purposes, commissioned, warrant and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operations of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance . . .”

While the Fourth Amendment may protect the citizen, law abiding or not, from the threat of an “unwarranted” search, that protection ceases once the citizen is on a vessel.  The Coast Guard has sweeping authority to board any vessel (subject to the jurisdiction of the United States) at any time, any place.  It does not require a warrant.  It does not require probable cause.  Boardings need not be based on a suspicion that a violation already exists aboard the vessel.  Their purpose is to prevent violations and the courts have upheld this authority.  Also, the Coast Guard has full legal law enforcement power on any land under the control of the United States, as needed to complete any mission.  14 USC  89 has its roots in the Revenue Service Act of 1790 which provided “all collectors, naval officers, surveyors, inspectors and the officers of the revenue cutters . . . to go on board ships in any part of the United States . . . for the purposes of demanding manifests . . . examining and searching the said ships, and the officers shall have free access to the cabin and every other part of the vessel . . .”  This statute was passed by the first Congress, the same Congress that enacted the Bill of Rights, including the Fourth Amendment with its guarantees for citizens to be secure against unreasonable searches and seizures.  By enacting the Revenue Service Act, the first Congress showed unequivocally that the Coast Guard’s significant law enforcement authorities to board and search a U.S. flag vessel anywhere in the world, as well as vessels intending to call on U.S. ports, were consistent with the Fourth Amendment.

U.S. Courts over the last 200 years have consistently validated the right of the Coast Guard to board and inspect vessels, probable cause or not.

Plainly stated, when it comes to Coast Guard boarding, you don’t have any rights.  As stated by Capt. Rasicott and CDR Cunningham in their article found in Proceedings, Summer 2009;  “There are two main ways to board a vessel – either with permission, or without.”

Vessel operators should know that to refuse permission for Coast Guard personnel to board may subject them to a penalty of $500.   Forcibly resisting is a felony punishable by up to ten years in prison and a $10,000.00 fine.

The unfettered search authority by the Coast Guard has its merits, especially in a world where random acts of terrorism are a constant threat and smuggling of illegal drugs into the U.S. is rampant.  Supporters also point out that “the government certainly has a vital interest in ensuring vessels on the high seas are safe, seaworthy, and properly documented.”  See Constitutional Barriers to Smooth Sailing;  14 U.S.C. 89(a) and the Fourth Amendment by Megan J. Knight.  Indiana Law Journal Vol. 72, Issue 2.  In her article, Ms. Knight recognizes the inherent conflict between the U.S. citizen’s expected right to privacy and 14 U.S.C. 89, and suggests that these vital interests, however “should not be advanced at the cost of sacrificing the constitutional freedoms of law abiding seafarers.”

However, if you are expecting the Courts to reverse decades of decisions finding that 14 U.S.C. 89 searches are not in conflict with the Fourth Amendment, forget about it.  In today’s society where everyone is subject to mandatory searches without probable cause every time you board an airliner, enter a government building, state or federal, or major sporting event, the power of the Coast Guard to search any vessel at any time is not going to be fettered.  It will take an act of Congress and that will never happen.

For excellent in depth analysis of the Fourth Amendment and 14 U.S.C. 89 see also The United States Coast Guard’s Law Enforcement Authority’s under 14 U.S.C 89; Smuggler’s Blues or Boaters’ Nightmare by Greg Shelton, William and Mary Law Review, Vol. 34, Issue 3; and Coast Guard Boardings and Your Fourth Amendment Rights, Part 1 – 3, by Clark Beek 10-12, www.sailfeed.com.