Search and Seizure--motor vessel--reasonable articulable
suspicion
The trial court erred by finding that the stop of
defendant's motor vessel violated the Fourth Amendment, requiring
the evidence obtained from that stop to be suppressed and the
charges of operating a motor vessel while impaired in violation
of N.C.G.S. § 75A-10(b1)(2) to be dismissed, because a Wildlife
Resource Commission officer could stop the motor vessel pursuant
to N.C.G.S. § 75A-17(a) in order to conduct a safety inspection
on the waters of North Carolina without having any reasonable,
articulable suspicion of criminal activity to justify the stop
based on the facts that: (1) it is necessary to stop vessels in
order to do safety checks to insure compliance with statutory
safety regulations; (2) defendant did not contend he lived on his
boat in order to raise his expectation of privacy, nor did the
officers ever board defendant's boat; (3) evidence of defendant's
intoxication obtained by the officers was within plain view; and
(4) the government's interest in maintaining water safety on its
lakes and rivers substantially outweighed defendant's expectation
of privacy in his boat.
Attorney General Michael F. Easley, by Assistant Attorney
General C. Norman Young, Jr., for the State.
Tucker, Slaughter & Singletary, P.A., by Robert L. Slaughter,
for defendant-appellee.
HUNTER, Judge.
This case presents a question of first impression for North
Carolina, that is, whether a Wildlife Resources Commission officer
may stop to conduct a safety inspection of a motor vessel on the
waters of North Carolina without having any reasonable, articulablesuspicion of criminal activity to justify the stop. Although we
refuse to expand the ruling in this case to other factual
situations, we hold that under these circumstances the stop was
reasonable and therefore did not violate defendant's Fourth
Amendment rights. Therefore, we reverse and remand.
The facts in this case are undisputed. On 23 May 1998, North
Carolina Wildlife Resources Commission Officer James Pope (“Officer
Pope”) and Sergeant Howell were patrolling Badin Lake in Stanly
County. Officer Pope testified that he and Sergeant Howell were
checking every vessel within that vicinity on that night. At about
11:45 p.m., the two men observed a pontoon boat in the area, being
operated by Glenn Edward Pike (“defendant”). Neither officer
observed any illegal activity at the time of the stop, nor did they
observe any activity which would violate any rules or regulations
of the Wildlife Resources Commission. Nevertheless, as they neared
the pontoon vessel, Officer Pope activated a blue strobe light --
signaling the pontoon operator to stop, which defendant did
immediately. Officer Pope then switched on a “bright white light,
which is a take down light which illuminates the whole interior of
a vessel.” The purpose of activating the “take down light” is so
the officer can see anything, everything and everybody on the
vessel. The officers announced their presence, informed defendantthat they were going to conduct a safety check of the vessel, and
then did so. The officers never boarded the vessel. However,
after the safety inspection, defendant was arrested and charged
with the criminal offense of operating a motor vessel while
impaired (OWI) in violation of N.C. Gen. Stat. § 75A-10(b1)(2).
At trial, defendant entered a plea of not guilty, was tried
and found guilty. Upon giving notice of appeal to the superior
court, defendant “filed a written Motion to Suppress seeking to
suppress evidence of the stop of his pontoon boat and attached
thereto his Affidavit dated the same date.” Following the 16
September 1998 hearing on defendant's motion, the trial court
concluded that the stop of defendant's vessel was not based uponany reasonable suspicion of illegal activity and thus, violated
defendant's Fourth Amendment right to freedom from unreasonable
search and seizure. Therefore, the trial court suppressed the
evidence of the stop which resulted in the dismissal of the charges
against defendant. The State appeals.
The State brings forward only one question for this Court's
review: whether the trial court committed prejudicial error by
finding that the stop of defendant's vessel violated the Fourth
Amendment to the United States Constitution, thus requiring the
evidence obtained from that stop to be suppressed and the charges
against defendant dismissed.
It is well established that the Fourth Amendment to the
Constitution of the United States provides that:
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.
U.S. Const. amendment IV. Our courts therefore, have ruled that
“[w]hether a [stop,] search or seizure is reasonable is to be
determined on the facts of each individual case.” State v. Boone,
293 N.C. 702, 709, 239 S.E.2d 459, 463 (1977). Furthermore,although not specifically listed in the Amendment, the United
States Supreme Court has held that there can be some expectancy of
privacy with regard to motor vehicles and vessels; however, “under
the overarching principle of 'reasonableness' embodied in theFourth Amendment, . . . the important factual differences between
vessels located in waters offering ready access to the open sea and
automobiles on principal thoroughfares . . . are sufficient to
require a different result . . . .” United States v. Villamonte-
Marquez, 462 U.S. 579, 588, 77 L. Ed. 2d 22, 31 (1983) (emphasis
added). Nevertheless, whether the facts involve the stop of a
vessel or that of a motor vehicle, to be allowable under the Fourth
Amendment the stop must be reasonable, and reasonableness is a
matter of balance. See Delaware v. Prouse, 440 U.S. 648, 59 L. Ed.
2d 660 (1979). “Though slightly different tests have been applied,
all suspicionless [stop,] search and seizure cases balance
governmental interest against individual intrusion in some
fashion.” Schenekl v. State, 996 S.W.2d 305, 309, n.3 (Tex. Ct.
App. 1999).
[T]he permissibility of a particular law
enforcement practice is judged by balancing
its intrusion on the individual's Fourth
Amendment interests against its promotion of
legitimate governmental interests.
Implemented in this manner, the reasonableness
standard usually requires, at a minimum, that
the facts upon which an intrusion is based be
capable of measurement against “an objective
standard,” whether this be probable cause or a
less stringent test. In those situations in
which the balance of interests precludes
insistence upon “some quantum of
individualized suspicion,” other safeguards
are generally relied upon to assure that the
individual's reasonable expectation of privacy
is not “subject to the discretion of the
official in the field.” Camara v. Municipal
Court, 387 U.S.[] at 532, 18 L. Ed. 2d 930, 87
S. Ct. 1727. . . .
Prouse, 440 U.S. at 654-55, 59 L. Ed. 2d 667-68 (footnotes
omitted). The State's interest in the case at bar is the same as
articulated in Klutz v. Beam, 374 F. Supp. 1129 (W.D.N.C. 1973),
to ensure boating and waterway safety for all North Carolinians.
Likewise, the State relies on the Boating Safety Act, N.C. Gen.
Stat. § 75A et seq., to grant it the authority exercised by Officer
Pope and Sergeant Howell. The pertinent section reads:
Every wildlife protector and every other law-
enforcement officer of this State and its
subdivisions shall have the authority to
enforce the provisions of this Chapter and in
the exercise thereof shall have authority to
stop any vessel subject to this Chapter; and,
after having identified himself in his
official capacity, shall have authority to
board and inspect any vessel subject to this
Chapter.
N.C. Gen. Stat. § 75A-17(a) (1999) (emphasis added). Furthermore,
(a) Inspectors and protectors are
granted the powers of peace officers anywhere
in this State, and beyond its boundaries to
the extent provided by law, in enforcing all
matters within their respective subject-matter
jurisdiction . . . .
. . .
(c) The jurisdiction of protectors
extends to all matters within the jurisdiction
of the Wildlife Resources Commission, whether
set out in this Chapter, Chapter 75A, Chapter
143, Chapter 143B, or elsewhere. The WildlifeResources Commission is specifically granted
jurisdiction over all aspects of:
(1) Boating and water safety;
. . .
(d)(1) In addition to law enforcement
authority granted elsewhere, a protector has
the authority to enforce criminal laws under
the following circumstances:
(1) When the protector has probable
cause to believe that a person
committed a criminal offense in his
presence and at the time of the
violation the protector is engaged
in the enforcement of laws otherwise
within his jurisdiction . . . .
N.C. Gen. Stat. § 113-136(a), (c), (d)(1) (1999) (emphasis added).
By reason of the foregoing statutory authority, it is
undisputed that Officer Pope and Sergeant Howell, at some point,
would have had the authority to inspect vessels on Badin Lake,
where defendant was boating. Furthermore, our statute clearly
requires no articulable suspicion or probable cause to stop a
vessel for a safety check. N.C. Gen. Stat. § 75A-17(a). However,
because it is also undisputed that the wildlife officers had no
articulable suspicion or probable cause, we must then determine
what “other safeguards are [to be] relied upon to assure that the
[defendant's] reasonable expectation of privacy is not 'subject to
the discretion of the official in the field.'” Prouse, 440 U.S.
at 655, 59 L. Ed. 2d at 668 (quoting Camara v. Municipal Court, 387
U.S. 523, 532, 18 L. Ed. 2d 930, 937 (1967)). Since this case is
one of first impression for North Carolina, we look to other
jurisdictions for guidance. Just recently, the State of Texas dealt with the very issue at
hand. We briefly recite the facts. At about midnight, a Texas
game warden was patrolling Lake Lewisville in his marked patrol
boat when he noticed the defendant's boat pulling out of the
marina. Soon thereafter, by authority of Texas' Parks and Wildlife
Code, the warden, without reasonable suspicion or probable cause,
stopped and boarded defendant's boat for a water safety check.
Finding defendant “having trouble answering [the warden's]
questions, . . . fumbling with his fingers, and . . . smell[ing] of
alcohol,” the warden “performed a horizontal gaze nystagmus test on
[defendant] and detected positive indications of intoxication.”
Schenekl v. State, 996 S.W.2d at 308. Consequently, the warden
arrested defendant for boating while intoxicated. Id.
At trial, defendant filed a motion to suppress the evidence of
intoxication resulting from the stop, arguing that his Fourth
Amendment right to be free from unreasonable search and seizure had
been violated. The trial court denied the motion. Upholding the
trial court's denial of defendant's motion to suppress, the Texas
Court of Appeals opined that:
The Fourth Amendment does not prohibit
all searches and seizures, only those that are
deemed unreasonable. . . . However, under
certain limited circumstances, searches and
seizures conducted without individualized
suspicion may be reasonable under the Fourth
Amendment. . . .
Id. at 309 (citations omitted).
[Furthermore,] [i]n weighing the level of
intrusion, we consider the individual's
expectation of privacy, the length and scope
of the detention, the alternative meansavailable in light of the statute's
contribution to the state interest, and the
discretion given law enforcement officials.
Id. at 310. The Court's analysis began with whether defendant had
any expectation of privacy in his boat, granted by the Fourth
Amendment. The Court decided that defendant, having a possessory
interest and being legitimately in the boat, having control of the
boat and having the right to exclude all others, “had an
expectation of privacy in his boat. . . . [However, in comparison
to a home] it is a diminished one.” Id. See Carroll v. United
States, 267 U.S. 132, 69 L. Ed. 543 (1924) (Fourth Amendment must
recognize the difference between a search of a store, house or
other structure and a search of a ship, motor boat, wagon, or
automobile); United States v. Albers, 136 F.3d 670, 673 (9th Cir.
1998) (government's traditional power to board a vessel is far
greater than its power to enter a motor-home or car); United States
v. Cadena, 588 F.2d 100, 101 (5th Cir. 1979) (there is a greater
expectation of privacy aboard a vessel [when] “[t]he ship is the
sailor's home”); also recognized in Klutz v. Beam, 374 F. Supp.
1129.
The scope and length of the detention
here were not intrusive. The enforcement
provision authorizes detention only for the
purpose of ensuring compliance with the
registration and safety requirements. The
intrusion is minimal in scope because the
search may only be directed at the safety
items listed in the statute. Further, while
the boat must carry several safety and
registration items, only a brief visual
inspection is necessary to determine
compliance. . . .
Schenekl, 996 S.W.2d at 310 (citation omitted). The Court then compared the alternative mechanisms available
to the State in enforcing its safety statutes to those mechanisms
available in Prouse, and found that policemen engaged in highway or
roadway safety enforcement have many more options to stopping a
motor vehicle than do boat patrolmen. For example, in checking
safety registration items,
[s]ome of the required safety equipment [of a
boat] is not capable of outward observation.
For example, life jackets and fire
extinguishers may be secreted and are also
readily detachable. It may well be impossible
to observe from a distance that a boater is
not carrying the proper number of life jackets
or a fire extinguisher. Additionally, though
required numbering on the boat is evidence of
proper registration, there is no safety
inspection on which registration is
contingent. Thus, unlike license plates [and
inspection tags] on a car, the numbers on a
boat do not indicate compliance with safety
requirements.
Further, fixed checkpoints [available to
highway patrolmen] are not a viable
alternative. As the Supreme Court noted in
Villamonte-Marquez, “vessels can move in any
direction at any time and need not follow
established 'avenues' as automobiles must do.”
462 U.S. at 589, 103 S. Ct. at 2580. Boats
are thus not susceptible to fixed checkpoints
on the water. Also, because safety items such
as life jackets and fire extinguishers are
readily detachable, a checkpoint at a dock or
boat ramp would be ineffective in determining
whether a boater complied with safety
requirements while actually on the water.
[Thus,] [t]here appear to be no other means as
effective as the seizures authorized by the
Act [the state's statutes].
Id. at 311 (emphasis added). The Texas court went on to consider
the issue of whether there were sufficient safeguards in place to
ensure that defendant's expectation of privacy was not “'subject[solely] to the discretion of the official in the field.'” Pr
ouse,
440 U.S. at 655, 59 L. Ed. 2d at 668 (quoting Camara v. Municipal
Court, 387 U.S. at 532, 18 L. Ed. 2d at 937).
Finally, we consider the discretion given
law enforcement. The Act's enforcement
provision applies to “all vessels on public
water,” and a stop may be made at any time.
Tex. Parks & Wild. Code Ann. § 31.004 (Vernon
Supp. 1999). Under the statute, there are no
restrictions on a law enforcement officer's
discretion. This unfettered discretion
conflicts with the Supreme Court's repeated
insistence, when construing the Fourth
Amendment, that “the discretion of the
official in the field be circumscribed, at
least to some extent.” See Prouse, 440 U.S.
at 661, 99 S. Ct. at 1400 (and cases cited
therein). Thus, the level of intrusion,
otherwise minimal, is heightened by the lack
of restraint on a law enforcement officer's
discretion.
This does not, however, render the
intrusion unreasonable under the Fourth
Amendment. Although the level of intrusion is
escalated by the lack of restraint on the
discretion of individual law enforcement
officials, it does not rise to an unreasonable
level. The reduced expectation of privacy in
a boat, the brevity of the encounter, and the
lack of alternative means render the level of
intrusion reasonable under the circumstances.
Balancing the State's substantial
interest in recreational water safety against
the intrusion involved, the enforcement
provision of the Act does not authorize
searches and seizures that violate the Fourth
Amendment. . . .
Schenekl, 996 S.W.2d at 311.
Although Schenekl is not mandatory authority upon this Court,
we find that Court's reasoning there extremely persuasive. We
first agree that it is impractical as well as perhaps, impossible
to check that a vessel is complying with statutory safetyregulations if the State is unable to verify that the requirements
are being met while the vessel is at sea. Thus, we find it
necessary that vessels be stopped in order to do safety checks (for
fire extinguishers, life jackets and the like). In comparing
Schenekl to the facts of the case at bar, the officers here never
boarded defendant's vessel to inspect it. Thus, their interference
with defendant's right to privacy was even less intrusive than in
Schenekl. The question then becomes whether, in conducting their
inspection of defendant's vessel, the officers impermissibly
detained defendant. We think not.
Our Supreme Court has held that the
“capacity to claim the protection of the
[Fourth] Amendment depends not upon a property
right in the invaded place but upon whether
the area was one in which there was a
reasonable expectation of freedom from
governmental intrusion. . . .” Mancusi v.
DeForte, 392 U.S. 364, 20 L. Ed. 2d 1154, 88
S. Ct. 2120 (1968). Thus, what a person
knowingly exposes to the public, even in his
own home or office, is not a subject of Fourth
Amendment protection, but what he seeks to
preserve as private, even in an area
accessible to the public, may be
constitutionally protected. Katz v. United
States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S.
Ct. 507 (1967).
State v. Boone, 293 N.C. at 708, 239 S.E.2d at 463. As owner and
operator of the vessel, defendant had to have been aware of the
safety regulations which mandatorily are to be followed; and
defendant knew or should have known that with regulations also come
inspections. Furthermore, defendant does not contend that he lived
on his boat or that the officers exceeded their scope of authority
by intruding into the boat's private bedrooms as did the officersin Klutz, 374 F. Supp. 1129. (In fact the officers never even
boarded the present defendant's boat.) Therefore, although
defendant had some expectation of privacy, we hold that “it [was]
a diminished one,” Schenekl, 996 S.W.2d at 310, noting that
evidence of defendant's intoxication was obtained by the officers
because it was “in plain view,” as it were, the defendant having
“knowingly expose[d] [it] to the public.” Boone, 293 N.C. at 708,
239 S.E.2d at 463.
Furthermore we, like the Schenekl Court, recognize that boats
do not display the same safety stickers and licenses as do motor
vehicles, neither are all the regulated safety requirements readily
able to be seen by an officer while the boat is moving.
Additionally, we note that Badin Lake is not a manmade lake,
landlocked from any other source of water; but in fact, Badin Lake
sits on the Yadkin River which runs through more than four counties
of this state. Thus, it cannot be said as in Prouse that
“[q]uestioning of all oncoming traffic at roadblock-type stops is
[a] possible alternative.” Prouse, 440 U.S. at 663, 59 L. Ed. 2d
at 674. We conclude the officers' interference of defendant's
movement was minimal and their detention of him, necessary.
We hold then, that pursuant to N.C. Gen. Stat. § 75A-17(a),
the officers' stopping defendant without probable cause -- for the
purpose of inspecting defendant's vessel -- was reasonable. We
note that defendant's vessel passed its inspection. However, it
was defendant himself who did not pass inspection -- and the
officers needed not even board defendant's vessel to know this. Therefore, we further hold that once the officers stopped defendant
for inspection purposes, they had the right to arrest him pursuant
to N.C. Gen. Stat. § 113-136, having (at that time) reasonable
cause to believe defendant was operating the vessel while impaired.
Again, we find the “plain view” doctrine applicable.
In Coolidge v. New Hampshire, 403 U.S. 443, 29
L. Ed. 2d 564, reh'g denied, 404 U.S. 874, 30
L. Ed. 2d 120 (1971) the U.S. Supreme Court
held that the police may seize without a
warrant the instrumentalities or evidence of a
crime which is within “plain view” if three
requirements are met. First, the initial
intrusion which leads to the plain view
discovery of the evidence must be lawful.
Additionally, the discovery of the evidence
must be inadvertent. Third, it must be
immediately apparent upon discovery that the
items constitute evidence of a crime. Id.
See also State v. Williams, 315 N.C. 310, 338
S.E.2d 75 (1986). . . .
State v. Sapatch, 108 N.C. App. 321, 325, 423 S.E.2d 510, 513
(1992).
We take great pains, however, to note that facts different
from this case may have resulted in a different outcome. However,
under these facts, having found that the government's interest in
maintaining, for its citizens, water safety on its lakes and rivers
substantially outweighed this defendant's expectation of privacy in
his boat, the trial court's order suppressing evidence of the stop
and dismissing the charges against defendant is hereby reversed.
Thus this case is
Reversed and remanded for trial.
Chief Judge EAGLES and Judge TIMMONS-GOODSON concur.
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