Balelo v. Baldrige

FERGUSON, Circuit Judge,

dissenting:

Today the majority installs a federal agent in the temporary home of 14 to 18 fishermen for a two- to three-month period without requiring a warrant or a showing of probable cause to believe that the law has been broken. The fourth amendment, assuring that the people are to be secure in their homes, mandates that warrantless government intrusion into even a temporary home is per se unreasonable. This protection is not lost because the place called home is also used for commercial purposes, i.e. as a fishing vessel, for both commercial premises and seafaring vessels are covered by the fourth amendment.

The National Oceanic and Atmospheric Administration (NOAA), an agency of the federal government, has by regulation placed federal agents on board tuna fishing vessels for two- to three-month fishing trips by conditioning the license to fish for tuna upon the vessel owner’s consent to the presence of federal observers. 50 C.F.R. § 216.-24(f) (1982). The federal “observers” are authorized to conduct research and collect information “which may be used in civil or criminal penalty proceedings, forfeiture actions, or permit or certificate sanctions,” id. § 216.24(f)(1), while they live for the extended fishing trip on a 150- to -250-foot boat with the crew of 14-18 men. M.K. Orbach, Hunters, Seamen, and Entrepreneurs (1977) (hereinafter “Orbach”). It has been stipulated by the parties that the observers take their meals with the fishermen, are not confined to any particular areas of the vessel, and are expected to “maintain open communication” with and question vessel operators and other personnel while recording data pertaining to the enforcement of the Marine Mammal Protection Act, 16 U.S.C. §§ 1361-1407.

Any possibility of separating the business aspects of a fishing vessel from the home aspects is belied by the realities of life on such a vessel:

[I]t is impossible to get more than about 50 feet from any of the other 15 men with whom you are going to spend the next two months. You can draw curtains or close doors and remain out of sight a good part of the time, but you can never get away from them, and the fishing process forces you into regular interaction with them.

Orbach at 25 (emphasis in original). Both Congress and the Supreme Court have acted to specially protect the rights and comforts of seamen due to this unusual characteristic of their work. See Aguilar v. Standard Oil Co., 318 U.S. 724, 732, 63 S.Ct. 930, 934-35, 87 L.Ed. 1107 (1943) (“Of necessity, during the voyage [the seaman] must eat, drink, lodge and divert himself within the confines of the ship. In short, during the period of his tenure the vessel is not merely his place of employment; it is the framework of his existence.”); Isbrandtsen Co. v. Johnson, 343 U.S. 779, 782, 72 S.Ct. 1011, 1014, 96 L.Ed. 1294 (1952); Warner v. Goltra, 293 U.S. 155, 162, 55 S.Ct. 46, 49, 79 L.Ed. 254 (1934), (“[T]he maritime law by inveterate tradition has made the ordinary seaman a member of a favored class.”).

The NOAA’s effort to install a federal agent on board a fishing vessel without securing a warrant based on probable cause *774is reminiscent of the “indiscriminate searches and seizures conducted under the authority of ‘general warrants’ [which] were the immediate evils that motivated the framing and adoption of the Fourth Amendment.” Payton v. New York, 445 U.S. 573, 583, 100 S.Ct. 1371, 1378, 63 L.Ed.2d 639 (1980); Marshall v. Barlow’s, Inc., 436 U.S. 307, 311, 98 S.Ct. 1816, 1819-20, 56 L.Ed.2d 305 (1978). The fourth amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects.... ” The Supreme Court has defined the scope of the fourth amendment to include a person’s “reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Such a definition extends fourth amendment protections beyond the literal meaning of “houses” to temporary residences, such as a hotel, Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964), a rooming house, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), and even a mobile home, People v. Carney, 34 Cal.3d 597, 194 Cal.Rptr. 500, 668 P.2d 807 (1983) and to commercial premises, Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 99 S.Ct. 2319, 2326, 60 L.Ed.2d 920 (1979) (adult bookstore); Mancusi v. DeForte, 392 U.S. 364, 367, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968) (office); See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967) (warehouse), as well as to seafaring vessels, United States v. Villa-monte-Marquez, - U.S. -, 103 S.Ct. 2573, 2581, 77 L.Ed.2d 22 (1983), and automobiles, Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S.Ct. 1391, 1400-01, 59 L.Ed.2d 660 (1979). More important, the “Fourth Amendment protects people, not places,” Katz v. United States, 389 U.S. at 351, 88 S.Ct. at 511, and thus prohibits warrantless surveillance of a person’s ordinarily private actions and words. Id; United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134-35, 32 L.Ed.2d 752 (1972). As the Court stated over twenty years ago:

At the very core [of the fourth amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. This Court has never held that a federal officer may without warrant and without consent physically entrench into a man’s office or home, there secretly observe or listen, and relate at the man’s subsequent criminal trial what was seen or heard.

Silverman v. United States, 365 U.S. 505, 511-12, 81 S.Ct. 679, 683, 5 L.Ed.2d 734 (1961) (citations omitted). It is precisely this “right to be let alone,” Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandéis, J., dissenting), that is trampled when tuna fishermen are required to live, eat, sleep, lodge and relax in the presence of a federal agent within the confines of a 150- to 250-foot boat in the middle of the ocean for two to three months at a time.

The fourth amendment 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 ... particularly describing the place to be searched, and the persons or things to be seized.” A warrantless search is presumptively unreasonable. Payton v. New York, 445 U.S. at 586 n. 25, 100 S.Ct. at 1380 n. 25; Marshall v. Barlow’s, Inc., 436 U.S. at 312, 98 S.Ct. at 1820; United States v. United States District Court, supra. If the reasonableness of a search could be based “on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considerations relevant to Fourth Amendment interests . .. Fourth Amendment protection in this area would approach the evaporation point.” Chimel v. California, 395 U.S. 752, 764-65, 89 S.Ct. 2034, 2041, 23 L.Ed.2d 685 (1969). Rather, “a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant” or falls within one of carefully defined exceptions to the warrant requirement. Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1730-31, 18 L.Ed.2d 930 (1967). *775This rule must be strictly enforced as “[t]he right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” Id. at 529, 87 S.Ct. at 1731 (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948)). As shown by Judge Tang in his dissent, the regulation at issue here cannot be justified under any of the recognized exceptions to the warrant requirement, particularly the “pervasively regulated industry” exception.

Tuna fishermen do not waive their right to be free from unreasonable search or surveillance by temporarily living onboard a fishing vessel. The fishing boat is not just their place of employment, but for two to three months it is “the framework of [their] existence,” Aguilar v. Standard Oil Co., 318 U.S. at 732, 63 S.Ct. at 934, and their home. This home cannot be entered by law enforcement officers absent a warrant based on probable cause to believe that a crime has been or is being committed. It is well established that an administrative regulation which by its terms violates the fourth amendment is unconstitutional and should not be enforced. Marshall v. Barlow’s, Inc., supra.

The majority states that it is necessary to place federal observers aboard tuna fishing vessels to protect the lives of porpoises. Maj.op., at 760, 761. However, it fails to address the question whether a warrant authorizing the placement of such observers on a case-by-case basis would undercut the objectives of the Marine Mammal Protection Act. Clearly, if a warrant is required under the Marine Mammal Protection Act, those on the fishing vessel upon which an observer may be stationed could conceal no more than they could conceal with the federal agent forced aboard without the pro-phylatic protections of a warrant issued by a neutral officer. See Marshall v. Barlow’s, Inc., 436 U.S. at 323, 98 S.Ct. at 1826. Moreover, the regulation by its own terms undermines the argument that notice would frustrate the objectives of the observer program as it provides that the fishing vessel owner receive notice of the placement of an “observer” five days prior to the voyage. 50 C.F.R. § 216.24(f)(4). Contrary to the majority position (maj.op., at 765), mere knowledge of the existence of a regulatory purpose cannot eliminate one’s expectation of privacy, for that would consume the rule against warrantless searches in the exception. Cf. Michigan v. Tyler, 436 U.S. 499, 508, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978).

The majority states that the warrantless quartering of a federal agent on a 30-60 day fishing trip is so clearly limited by regulation that the regulation is the substantial equivalent of a warrant. Maj.op. at 765-766. However, it has been recognized that when law enforcement officers are lawfully on the premises for limited purposes, the restrictions placed on the scope of their search or duties “may be more theoretical than real.” Payton v. New York, 445 U.S. at 589, 100 S.Ct. at 1381. Moreover, the majority’s position that the observer may legitimately gather evidence in “plain view” on the ship belies the weight of the limitations placed on the observer by the regulations. Maj.op., at 763. The fishermen are placed in the position of hiding their everyday acts and comments from the federal agent in order to establish and protect their fundamental right to be let alone. See Illinois v. Andreas, - U.S. -, 103 S.Ct. 3319, 3327, 77 L.Ed.2d 1003 (1983) (Brennan, J., dissenting). The NOAA has made the price of being a tuna fisherman include the “dread of subjection to an unchecked surveillance power.” United States v. United States District Court, 407 U.S. at 314, 92 S.Ct. at 2135.

The fourth amendment was a response to the general warrant whereby an officer was authorized to search private premises without evidence of unlawful activity. Marshall v. Barlow’s, Inc., 436 U.S. at 311, 98 S.Ct. at 1819-20. Today the majority holds that a *776federal agent cannot only search a private vessel, but collect data, question fishermen, and live on the vessel for months at a time without the need to secure a warrant based on a legitimate suspicion of unlawful activity. The regulation at issue here can subject “even the most law-abiding citizen” to unprecedented and unjustified government intrusion and surveillance. See Camara v. Municipal Court, 387 U.S. at 530, 87 S.Ct. at 1731. Surely the lives of porpoises cannot be more sacred to us than the right to privacy and freedom from government intrusion protected by the fourth amendment.