dissenting:
I concur in Judge Roney’s dissenting opinion, except the portion relating to the currency violations.
FAY, Circuit Judge, with whom GOLDBERG and LEWIS R. MORGAN, Circuit Judges, join, dissenting:
Most respectfully, I dissent. It is my belief that the constitutional rights of American citizens have been dealt a severe blow by today’s en banc opinion, and I am somewhat stunned by the cursory treatment this opinion gives to certain sérious constitutional and factual issues. ■ My thoughts as to this case remain the "same as those expressed in the Court’s initial opinion, 550 F.2d 219 (5th Cir. 1977), but I feel it is necessary to write further in order to bétter explain these thoughts and to point out what I consider to be the serious weaknesses in the Court’s position.
A. The Fourth Amendment Problems
No one can question that the Coast Guard may stop and search an American vessel on the high seas when it has probable cause to believe a crime has been or is being committed. Prior cases have indicated that such actions are not violative of the Fourth Amendment. See, e. g., United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Maul v. United States, 274 U.S. 501, 47 S.Ct. 735, 71 L.Ed. 1171 (1927). As discussed in the original panel opinion, the Coast Guard may also stop an American vessel on the high seas for the purpose of conducting a safety or documentary inspection. This Court has previously approved of such stoppings, and has also endorsed as a corollary to this proposition that if circumstances arise during the course of a safety inspection that generate probable cause to believe that a violation of United States law has occurred, then the Coast Guard may extend its inquiry, and seize evidence and make arrests if necessary. See United States v. Odom, 526 F.2d 339 (5th Cir. 1976). What is baffling is how a majority of our Court can feel that the facts of this case fall within any of the legal principles just recited. Equally as shocking is the suggestion by the majority opinion that these legal principles do not set out the constitutional limits on searches and seizures on the high seas.
The proper Fourth Amendment analysis for this case should begin with a recognition that any detention by the Coast Guard of an American vessel anywhere in the world constitutes a “seizure” as that term is used *1080in the Fourth Amendment.1 While war-rantless seizures absent probable cause are seldom constitutional, the Coast Guard may constitutionally seize an American vessel for the limited purpose of conducting a documentary and safety inspection. It is critical, however, to recognize that the constitutionality of such a seizure hinges on the Coast Guard limiting the scope of its intrusion to the purpose of the initial seizure. The moment the Coast Guard absent probable cause enlarges the scope of its inquiry beyond that of a safety and documentary inspection, the seizure is no longer constitutional, and all evidence derived from inquiries as a result of the expanded intrusion is unconstitutionally obtained and inadmissible at trial.
In the case before us, all evidence of criminal wrongdoing was obtained as a result of the efforts of two governmental officers whose only purpose on board the Coast Guard cutter was to look for obvious customs and narcotics violations. Upon boarding the Stormy Seas, these two officers immediately began an extensive and highly intrusive search of the vessel. This search, and the inquiries related to it, were in no way connected with the safety and documentary inspection then being conducted by Coast Guard personnel. Indeed, Lt. Miller, the Coast Guard officer leading the boarding party, testified forthrightly that Agent Battell of the DEA and Agent Wallace of the Customs Service gave him no assistance in conducting the safety and documentary inspection. Record, Vol. 2, at 24. At the time this search and related inquiries were made by Battell and Wallace, no government agent had learned of facts giving rise to probable cause that a crime had been committed. The efforts of Agents Battell and Wallace were, therefore, outside of the parameters of the only constitutional basis for the stop — a safety and documentary inspection. As a result, the evidence derived from the seizure of the Stormy Seas was unconstitutionally obtained.
In order to better understand the rationale underlying my analysis of the Fourth Amendment issues in this case, and to better explain the serious misgivings I have over the far reaching effects of the majority opinion, it is necessary to examine very closely the potential effect of the broad language used by the en banc Court, and to compare this language with other search and seizure situations. The majority opinion states flatly that the power of the Coast Guard to apprehend any vessel of the American flag is “plenary”. Majority opinion p. 1064. The opinion also states without reservation that § 89(a) is constitutional. Id. A close examination of § 89(a), however, reveals that it would authorize the Coast Guard to seize any American vessel anywhere in the world without probable cause and for no purpose whatsoever other than to conduct a full scale search for possible drug or other criminal violations. It is difficult to believe that the en banc Court feels that such action by the Coast Guard would be constitutional, but the broad language of its opinion suggests that this is so. The majority opinion is, therefore, seriously flawed not only by its attempts to reconcile the facts of this case under the legal principles set forth in United States v. Odom, 526 F.2d 339 (5th Cir. 1976), but also by its suggestion that those principles set forth in Odom are not the outer limits of the Coast Guard’s lawful authority to stop and search American vessels on the high seas.
The majority’s refusal to establish constitutional limitations on search and seizures on the high seas creates an extraordinary and anomalous result. The majority apparently is willing to give the Coast Guard unfettered discretion to seize American vessels on the high seas even though we must be aware of the fact that the Supreme Court has said that such a grant of discretion to a Border Patrol officer on a roving patrol would be unconstitutional. In Unit*1081ed States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Supreme Court discussed at length the Fourth Amendment limitations on the authority of the United States Border Patrol to stop (seize) automobiles near the Mexican border in order simply to question the occupants about their citizenship and immigration status. The Court’s analysis began with the recognition that "The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest,” and that whenever a government officer seized a person the “Fourth Amendment requires that the seizure be ‘reasonable’”. Id. at 878, 95 S.Ct. at 2578. As with other categories of police action subject to Fourth Amendment constraints, “the reasonableness of such seizures depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Id.
The Supreme Court identified the public interest at stake in a seizure by a roving Border Patrol officer as the need to prevent the illegal entry of aliens at the Mexican border. The Court recognized that the common Mexican-American border was over 2000 miles long and that it would be impossible to effectively police this border. This impossibility has resulted in an influx of over one million illegal aliens a year which creates “significant economic and social problems.” Id.
Against this valid public interest of attempting to regulate the flow of aliens, the Court then weighed the interference with individual liberty that results when an officer stops an automobile and questions its occupants. The Court concluded that such an intrusion is modest since it usually consumes no more than a minute, there is no search of the vehicle or its occupants, and the visual inspection is limited to those parts of the vehicle that can be seen by anyone standing alongside. Because of the limited nature of the intrusion, stops of this sort “may be justified on facts that do not amount to the probable cause required for an arrest.” Id. at 880, 95 S.Ct. at 2580. However, the Court was very careful to point out that seizures of this sort could not be made at the mere whim of Border Patrol officers, but rather “only if [the officers] are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” Id. at 884, 95 S.Ct. at 2582. The Court emphasized that the stop and inquiry must be reasonably related in scope to the justification for the intrusion. The officer “may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.” Id. at 881-82, 95 S.Ct. at 2580.
The Supreme Court was unwilling to grant a roving border patrol unfettered discretion to seize vehicles, but, for some reason left unexplained by the majority opinion, our Court implies that a grant of similar discretion to a Coast Guard officer on a patrol thousands of miles away from the United States would be constitutional. Perhaps the majority feels that there are greater exigencies involved in a confrontation between the Coast Guard and an American vessel on the high seas (possibly thousands of miles away from the United States), than are present in a confrontation between a traveler and a Border Patrol officer near the Mexican border. If so, I disagree. Certainly the laws attempting to be enforced by the Border Patrol are just as important as those laws or treaty obligations that the Coast Guard is attempting to enforce,2 and there can be no doubt that the *1082threat to the United States generally is much more immediate in the roving patrol situation than it is on the high seas. It is also rather obvious that the interference with individual liberty is much graver in a case such as that before us today, than is the “modest” interference in the Border Patrol situation. Section 89(a) would allow without probable cause or any degree of suspicion a seizure of indefinite duration (not to mention a complete interrogation and search of all the occupants as well as the vessel). This sort of interference is exactly the type of serious governmental interference that the Fourth Amendment was attempting to protect against, yet the language of the majority opinion would sanction just this without even attempting to rationalize this position under the Fourth Amendment.
The roving border patrol situation is not the only instance in which the public interest and exigencies facing a particular governmental officer would appear as great or greater than the exigencies or public interest involved with the Coast Guard on the high seas. For example, the circumstances facing a police officer on the streets when a crime has recently been committed (and the immediate threat to the public as a result of the crime) are significantly greater or more exigent than those facing the Coast Guard on the high seas. Nevertheless, the Supreme Court has restricted the power of the police officer to stop and frisk a citizen for investigatory purposes. The Court has required an officer in such a situation to have a reasonable belief that the person to whom he wishes to speak has been or was about to engage in some sort of criminal activity, Adams v. Williams, 407 U.S. 143, 145-146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), and before the officer is allowed to frisk that person, he must have reason to believe that he is armed and dangerous. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The fact that the Supreme Court has refused to grant the government unfettered discretion to seize vehicles or persons in situations which appear on their face more critical than a confrontation between an American vessel and the Coast Guard on the high seas, indicates that such a grant of authority to the Coast Guard would likewise be unconstitutional since a ship or vessel is not some sort of talisman in whose presence the Fourth Amendment fades away. That is not to say, however, that any seizure by the Coast Guard on the high seas absent probable cause would be unconstitutional. It is merely the grant of a blanket authority to seize on the high seas which cannot be justified under the Fourth Amendment. It is interesting to consider how limited the situations are in which governmental officers are given blanket authority to search or seize. The obvious ones are at an actual border crossing or when a vessel is found within customs waters. But, the exigencies inherent in these situations adequately justify such a grant of authority. In the border situation, the Supreme Court has explained that it is within the power of the government to exclude aliens from this country, and, as a consequence of this power:
“Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belonging as effects which may be lawfully brought in.”
Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973), quoting Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The same policy reason exists for allowing warrantless non probable cause searches and seizures of vessels within twelve miles of the coast. However, in addition to this reason, the search and seizure within customs waters is further justi*1083fied by the admitted difficulty in effectively policing the seaward national boundaries.
The majority opinion has brought forth no circumstances attempting to justify the grant of discretion it gives to governmental officers on the high seas. The most obvious explanation for this is that no such circumstances exist. While the need to inspect for safety and documentary reasons is legitimate, it is no more compelling than the need of a roving patrol to control the influx of aliens. Nor can it be argued that the problem of preventing drug importations is any greater on the high seas than it is at the Mexican border. It is impossible to rationalize under the Fourth Amendment a seizure of an American vessel for an indeterminate amount of time in order to inquire about possible drug violations. However, this is not to say that stoppings and searches of a less intrusive nature cannot be justified. Previously, this Court has sanctioned the stopping of American vessels on the high seas for safety and documentary inspections. By so doing, we have accepted the argument that this country has a duty to the rest of the world to effectively control American ships as to their administrative and technical matters. I have no real problem with this position, and I think such stoppings and searches are analogous to the warrantless administrative searches which are permissible in highly regulated business such as liquor and firearms. In fact, the Supreme Court’s statement in United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), where it authorized the warrantless inspections of firearm dealers, is most applicable to our situation:
We have little difficulty in concluding that where, as here, regulatory inspections further [an] urgent federal interest, and the possibilities of abuse and the threat to privacy are not of impressive dimensions, the inspection may proceed without a warrant where specifically authorized by statute.
Id. at 317,3 92 S.Ct. at 1597.
Assuming that Coast Guard stoppings on the high seas and limited administrative type searches are constitutional, such a stopping would retain its cloak of constitutionality only as long as the intrusion remains limited in scope. The moment the intrusion is extended in any way — absent probable cause to justify such an extension — then the seizure and search become unconstitutional. Placing such a condition on the constitutionality of a search and seizure is in no way unusual. As mentioned earlier, the Supreme Court did just this when it stated that any stop and inquiry by the Border Patrol must be “reasonably related in scope” to the justification for the intrusion, and “further detention or search must be based on consent or probable cause.” United States v. Brignoni-Ponce, 422 U.S. at 881-82, 95 S.Ct. at 2580. A similar limitation on the scope of a Fourth Amendment intrusion was placed on a police officer in a “stop and frisk” situation. The Supreme Court said in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) that:
The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.
Id. at 29, 88 S.Ct. at 1884. The Supreme Court then examined the scope of the search conducted by the police officer in question and determined that the officer had confined his search “strictly to what was minimally necessary to learn whether the men were armed and to disarm them *1084once he discovered the weapons.” Id. at 30, 88 S.Ct. at 1884. The Court concluded by emphasizing that the officer “did not conduct a general exploratory search for whatever evidence of criminal activity he might find.” Id.
In our case, the sole constitutional justification for the initial seizure was to conduct a safety and documentary inspection, and, as we examine the facts, it becomes apparent that the government did not confine its inquiry to what was reasonably necessary to determine if there were any safety or documentary violations. Instead, the government treated the stop as an exploitable opportunity to look for whatever evidence of criminal activity might be found.
No one can doubt that the inquiry by the government in this case went far beyond what was necessary to look for safety and documentary violations. The government admits that the presence of the Drug Enforcement Administration and Customs officers had nothing to do with safety and documentary inspections. Rather, these officers boarded the Stormy Seas to look for customs and drug violations,4 and, in furtherance of this purpose, they conducted an extensive search of the Stormy Seas. This search included going through all areas of the boat, opening closets, cabinets, drawers, and even going through personal items such as one of the defendant’s shaving kits. Record, Vol. 2, at 62, 74-76. Did the government officers really expect to uncover safety violations inside the drawer of the nightstand or inside any of the cupboards— much less inside of a shaving kit? Agent Wallace also admitted that the sole purpose for his inquiry to Thomas Warren about money was because he suspected the purpose of the trip was to bring back narcotics, and, if this suspicion was correct, then there might be money on board.5 Record, Vol. 2, at 77. The inquiry about money, therefore, had nothing to do with a safety and documentary inspection.
The en bane opinion concedes that no governmental agent who boarded the Stormy Seas had probable cause to believe a crime had been committed until Thomas Warren admitted that he had failed to report the $7000.00 he claimed to possess.6 *1085Consequently, prior to this admission by Warren, there was no justification whatsoever for an expansion of the government’s inquiry beyond whatever was needed to adequately conduct a safety and documentary inspection. The constitutionality of the seizure of the Stormy Seas depended upon the Coast Guard seizing the vessel for a limited purpose and restricting its activities on board to the accomplishment of that purpose.7 Here, the government admits that part of its purpose in seizing the Stormy Seas was to permit government agents to uncover “obvious customs and narcotics violations.” Once on board, DEA and Customs agents did nothing but seek out evidence of such violations. All of the evidence against the defendants was thus obtained during an unconstitutional seizure, and such evidence should have been suppressed at trial.8
There is another serious Fourth Amendment problem with the search and seizure of the Stormy Seas and that involves the active participation of Drug Enforcement Administration and Customs personnel in the whole episode. The panel opinion stated that the evidence derived from the search and seizure of the Stormy Seas should be suppressed because the Coast Guard had improperly delegated its authority to stop and search vessels under § 89(a) to members of other branches of the Federal Government who had no such authority. *1086It is not disputed that all of the evidence derived from the search of the Stormy Seas was a product of the efforts of the DEA agent and the Customs officer. Shockingly, a majority of the en banc court feels it appropriate to “infer” a proper delegation of this authority.9 This Court’s willingness to infer such consent without even the least bit of a discussion as to the propriety of such an inference causes me great concern. The drug problem in this country is extremely serious. We need the most forceful prosecutions possible. However, we cannot ignore the basic rights which have allowed our way of life to continue some 200 years. We cannot and must not say “the end justifies the means” at the expense of our constitutional rights. Few of these rights are more treasured than those protected by the Fourth Amendment.10
The en banc opinion proposes as an alternative reason for allowing the participation of the DEA and Customs agents the fact that the defendants never raised this point either in the district court or the appellate court.11 The en banc Court could not be more wrong! At the hearing to suppress the evidence seized from the Stormy Seas, counsel for John Warren argued extensively that no authority existed for the Customs and DEA agents to participate in this search and seizure. Record, Vol. 2, at 122-124. Counsel earlier raised this same point to the district court in his written memorandum of law in support of a motion to suppress.12 Record, Vol. 1, at 44. Once the defendants raised this point, the burden fell on the government to justify the participation of the agents, and from the record before us, it is obvious that no such justification exists.13
*1087B. The Fifth Amendment Issues
The panel opinion held that the failure to give Thomas Warren his Miranda warnings prior to questioning him regarding the amount of money in his possession violated the Fifth Amendment. We explained in that opinion that:
Focus for Miranda purposes occurs when questioning is initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of actions in any significant way. Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976). There is no question that all the defendants had been sufficiently deprived of their freedom such that Miranda warnings should have been given. The defendants had all been removed to the fantail of the ship, their guns, which were lawfully on board, had been seized as soon as the Coast Guard boarded the ship, all officers who boarded the ship were armed, and the Steadfast was nearby with three machine guns on its deck to insure that the Stormy Seas did not depart unexpectedly. Miranda warnings are required when one is effectively deprived of freedom of movement in any significant way and this is especially true when the questioning is designed specifically to yield incriminating statements. There is no doubt, therefore, that these defendants had been denied their freedom of movement to the degree necessary to trigger the giving of Miranda warnings.
The en banc opinion disagrees with the panel’s earlier analysis about the extent to which the defendant’s freedom of action had been restricted. The en banc opinion asserts that the factors which normally occur in Coast Guard safety and documentary inspections cannot be used as indicias of a custodial atmosphere. Rather, the opinion claims that since these factors constantly recur they are routine and thus expected by a crew member on a boarded vessel. Therefore, in order for a situation to arise that is sufficiently custodial to warrant the giving of Miranda warnings, it is necessary to look beyond these routine factors and determine whether anything occurred which distinguishes this stopping and questioning from other stoppings. The en banc opinion then analyzes the facts of this case under the four-factor test set forth initially in United States v. Montos, 421 F.2d 215 (5th Cir. 1970), and concludes that nothing occurred on board the Stormy Seas which would warrant an earlier giving of the Miranda warnings to the defendant.
The en banc opinion states:
Every American flag vessel on the high seas is subject to Coast Guard boarding and inspection. . . . Therefore, the coercive atmosphere that is the primal indicium of a custodial interrogation, is generally absent because such boardings are routine.
*1088One error in this analysis is that these boardings are routine only for the Coast Guard — not for the crew of the vessel being boarded. While it is true that every American vessel knows that it is subject to the possibility of such a boarding, in reality, a vessel may go for extended periods of time (or forever) without being boarded on the high seas. This factor distinguishes this situation from an interrogation at a border crossing since in the latter situation almost every person who crosses the border will be stopped and asked questions. On the high seas, however, there could be persons on board a ship that have never been involved in a stop before, and for these persons such a stopping is in no way routine.
I do not contend that all questioning which occurs aboard a vessel stopped for a safety and documentary inspection is always custodial in nature. Rather, I simply feel that certain factors are relevant to that determination even though these events may happen in most Coast Guard stoppings. For example, it seems most unrealistic to propose, as the majority does, that we not consider the facts that the boarding party was armed and that the Coast Guard cutter had machine guns on its deck in order to forcibly stop the Stormy Seas had it not voluntarily stopped. While these factors are generally present, so too are the presence of guns in a police station. Nonetheless, both are relevant to the creation of a custodial atmosphere. It is seldom routine for the one at the wrong end of the gun.
As pointed out by the en bane opinion, this Court has adopted a four-factor test to aid in the determination of whether an interrogation is sufficiently custodial in nature to warrant the giving of Miranda warnings. No single factor in this test is necessarily decisive, United States v. Mon-tos, 421 F.2d 215, 222 (5th Cir. 1970), and a proper analysis involves the consideration of all the factors. The first factor for consideration — whether probable cause to arrest the defendant had arisen at the time of the interrogation — is the only factor in the test which implicates a lack of a custodial situation. Both the government and the defendant admit that prior to the interrogation about money no probable cause to arrest had arisen. The remaining factors, however, are all supportive of the giving of Miranda warnings, and the en banc opinion’s treatment of those factors is seriously flawed.
The second factor we are to consider is whether the subjective intent of the officer conducting the interrogation was to hold the defendant. The en banc opinion admits that the intent of the boarding party was to restrict the freedom of the Stormy Seas, but the opinion goes on to say that this is not enough since the freedom of every vessel boarded by the Coast Guard is restricted, and for this factor to have any meaning “the officer must intend to go beyond the customary and routine boarding and search.” The opinion then concludes that the subjective intent of the officer was not to hold the defendant since “the record does not reflect that he intended to take Thomas Warren into custody at that point.”
This approach creates several serious problems. The first is the opinion’s refusal to consider the fact that the Stormy Seas was forcibly stopped. The fact that such stoppings are routine for the Coast Guard does not make the result of such a stopping any less intimidating for the crew of the seized vessel. However, even accepting the logic behind requiring more than what is routine in a Coast Guard stopping on the high seas, the test is met by the facts of the case before us. The en banc opinion states that “the officer must intend to go beyond the customary and routine boarding and search.” It cannot be seriously disputed that the Customs and DEA agents here were not in any way involved with conducting the safety and documentary inspection on board the Stormy Seas. These agents boarded the Stormy Seas to look for customs and drug violations, and it is admitted by Agent Wallace that he made the inquiries regarding money because he suspected the purpose of the trip was to procure narcotics. Agent Wallace was in no way concerned with a safety violation when he was questioning Thomas Warren, and this factor coupled with the serious restriction of the *1089defendant’s freedom of movement more than satisfies this element of our inquiry. Of interest is the fact the en banc opinion concludes that the subjective intent of the officer was not to hold the defendant because “the record does not reflect that he intended to take Thomas Warren into custody at that point.” The opinion cites no authority for the proposition that this factor in our test is satisfied only if there is an intent on the officer’s part to presently take the defendant into custody. The reason that this proposition is without a supporting citation is probably because it is not the relevant inquiry to be made. In order for an officer to have the present intent to take a subject into custody he must have probable cause to arrest. Our initial inquiry in our four-factor test was whether probable cause to arrest existed. It makes no sense to even examine the second factor if in order to satisfy it you must have met the first factor, and this is especially so in this sort of a situation where if probable cause to arrest exists, then it naturally follows that the officer intends to take the subject into custody. Obviously, this factor can be satisfied by something less than an officer’s intent to actually take a subject into custody, and I think the factual situation before us satisfies this factor.
Our third inquiry requires an examination of whether the subjective belief of the defendant was that his freedom of movement was significantly restricted. The en banc opinion states that “to the extent that the boarding and inspection are routine, the defendants should not feel coerced,” and that the relevant inquiry is “whether Thomas Warren believed that at the time of the questioning, the boarding and interrogation had gone so far beyond the customary that he was imminently subject to arrest.” The opinion then concludes that the defendant did not believe his freedom to be significantly restricted at the time of the questioning because his responses to questions were intended to corroborate his earlier explanation for the purpose of his trip and thus he still believed the enterprise to be viable at the time of the questioning.
The majority’s crystal ball is better than mine and I can only assume they have never been aboard a vessel stopped by the Coast Guard for any purpose. It is incredible to me that this Court can take the position that any reasonable person would not subjectively believe that his freedom of movement had been restricted when he is on board a vessel which is stopped on the high seas by the Coast Guard. Added to this is the fact that in our case Thomas Warren was being questioned by people who had nothing to do with the actual safety and documentary inspection. As a result, whatever might have been routine about the stop of the Stormy Seas lost this characteristic when the vessel was subjected to an extensive search of areas where safety violations obviously could not be found. It is also baffling to me that the en banc opinion can conclude that the defendant did not believe his freedom of movement to be restricted because he was still using his cover-up story. The relevance of this to the subjective belief of the defendant regarding his freedom is beyond me. I do understand, however, that the en banc opinion considers this somehow relevant to a determination of whether the defendant considered himself “imminently subject to arrest.” As pointed out earlier, the test this Court has previously adopted is whether the defendant subjectively believed that his freedom of movement had been significantly restricted and not whether the defendant feels that he is imminently subject to arrest. These two tests are completely different, and if the en banc Court proposes to change the relevant test, then it should acknowledge exactly what its intentions are.
The final factor we are to consider in determining whether Thomas Warren was entitled to Miranda warnings is whether the investigation had focused on the defendant at the time of the interrogation. I think the answer to this is supplied by Agent Wallace’s admission that his questions regarding money were prompted by his belief that the purpose of the trip was to bring back narcotics. Record, Vol. 2, at 77. At the time of the questioning, Agent *1090Wallace certainly believed that the defendant was involved in illegal operations, and his questioning was designed to elicit information substantiating this belief. The en banc opinion, however, states that it is only when an investigation shifts to the accusatory stage that it is sufficiently focused under this criterion, and that where officers are merely trying to ascertain if a federal crime has been committed, the accusatory stage has not yet begun. In support of this proposition, the opinion cites a 1966 Eight Circuit case. Unfortunately, the en banc opinion fails to provide us with any insight on exactly when an investigation becomes accusatory, but evidently the majority feels that this line has not been crossed when governmental officers admit that they believe certain people to have committed certain crimes and that their questioning is initiated solely to uncover more substantial evidence of those crimes. I cannot agree with this conclusion. We are not faced with a situation where a governmental officer is conducting general questioning to a wide variety of people. Rather, Agent Wallace admitted that he believed Thomas Warren to be on a drug run, and that his questions regarding money were designed to elicit evidence supporting this belief. If this sort of investigation is not “focused” upon a defendant, then I simply do not understand exactly what makes a confrontation between a governmental officer and a suspect “accusatory.” It appears that the majority feels that the answer to this question turns on the quantum and quality of the evidence within the government’s knowledge. But does that mean that an investigation by an officer who is not armed with probable cause (or something close to probable cause) cannot have focused on a defendant? ' Apparently, this is the majority’s position, and the trouble with this analysis is that it makes our finding on the first factor (the probable cause inquiry) critical to our determination of the focus factor. Once again the majority has engaged in double counting. Obviously, this fourth factor must mean something different than the first factor, and a case cited by the majority opinion supports this position that it is possible for an investigation to have focused on a defendant even though probable cause to arrest does not exist. In United States v. Carollo, 507 F.2d 50 (5th Cir. 1975), this Court examined a factual situation in which it decided that only the fourth factor might be present. The Court concluded that a defendant could not be “in custody” for Miranda purposes if “the focus factor alone is present.” Id. at 53. The Carollo opinion, however, acknowledges that the “focus” factor could be present even though probable cause does not exist. This is hardly possible under the majority’s analysis since that analysis implies that the focus of an interrogation is on a defendant only when the interrogation becomes accusatory, and this apparently happens only if the officer conducting the investigation has probable cause (or something close to probable cause) to believe that the suspect has been involved in criminal activity. Such an improper approach for determining whether an investigation has focused on a defendant is not only unsupported by the authorities cited, but would also significantly reduce the number of situations in which the police would be required to give Miranda warnings. The analysis of the en bane opinion makes the determination regarding probable cause critical to the outcome of the inquiries in three of the four factors to be considered. Consequently, since no one factor can be decisive, once a court determines that probable cause does not exist, it has for all intents and purposes made a determination that Miranda warnings need not be given. I do not believe that such is the law of this Circuit, nor do I think such a position is constitutional. The Supreme Court said in Beckwith v. United States, 425 U.S. 341 (1976), that focus for Miranda purposes occurs when questioning is initiated by law enforcement officers after a person has been deprived of his freedom of actions in any significant way. The result of the analysis in the en banc opinion is to say that a person cannot be deprived of his freedom of actions unless a law enforcement officer has probable cause to believe a crime has been committed. This result is illogical and untenable.
*1091This case presents still another Fifth Amendment problem. This relates to the testimony of Agent Battell at trial regarding Thomas Warren’s statement to his brother and Cruse to remain silent. The issue is whether the reception of the testimony constituted an impermissible comment on the Warrens’ right to remain silent. The en banc opinion holds that reception of this testimony was permissible under the Fifth Amendment in that the testimony “did not constitute a comment on the exercise of the Warrens’ right to remain silent.” The en banc opinion argues that all that the testimony indicated was that Thomas Warren advised his brother and Cruse not to say anything. Consequently:
The jury could not have known whether the advice was in fact heeded. The testimony does not imply that Thomas Warren himself chose to exercise his right; he merely admonished the others not to speak.
Majority opinion p. 1073.
It is interesting to consider the potential effects of the en banc opinion’s position on this point. If comment on the actual exercise of one’s right to remain silent is all that is prohibited by the Fifth Amendment, is this Court then saying that everytime a law enforcement officer hears an attorney advise his client to remain silent it is permissible for that officer to testify to this at trial? Or, is the court saying that every time a defendant requests an attorney, it is permissible to enter testimony at trial regarding that request? The advice of an attorney to remain silent certainly ought to be protected even though testimony limited in scope just to this point in no way reflects whether the advice was actually heeded, and, therefore, in no way comments on the actual exercise of the right to remain silent. No one can doubt, however, that the introduction of such testimony is highly prejudicial, and no one should seriously contend that it was not prejudicial in this case to introduce testimony to the effect that one codefendant (Thomas Warren) had advised another codefendant (John Warren) to remain silent. Such testimony is just as in-culpatory as a comment on a defendant’s right to remain silent, and one might consider exactly what value the privilege to remain silent and the right to an attorney have if we are going to allow a jury to draw negative inferences from the advice that an attorney might give to a defendant regarding his right to remain silent. Accordingly, I believe the Fifth Amendment encompasses more than just the actual exercise of the privilege to remain silent, and is broad enough to preclude comment on an attorney’s advice to his client to remain silent. Of some interest is whether Thomas Warren — who is an attorney — could be said to have been acting in that capacity when he made the statement to his brother and Cruse. This is a point with which the en banc opinion does not deal — preferring instead to rely on broad language permitting any type of comment except a comment on the actual exercise of the right to remain silent. My dissent as to this point is predicated more on the broad sweep of the language of the en banc opinion rather than the actual result in this case. It seems unfortunate that the en banc opinion did not restrict the breadth of its language, and deal instead with the unique facts of this case. Possibly, the same result might have been reached without having to further restrict the rights of American citizens.
C. Conclusion
Nothing contained in this dissent is intended to be critical of the Coast Guard, Drug Enforcement Agency or the Customs officials. These government agents are involved in a “war against drugs.” The seriousness of this problem and the full consequences of their action can not be questioned. Their candor has assisted all in focusing upon the real issues involved. But history has proved over and over that if we are to retain the basic freedoms that make us unique, we must never lose sight of the importance of preserving our basic constitutional rights. Today’s action greatly undermines the Fourth and Fifth Amendments. Our Court has tragically diluted the rights of American citizens when they sail beyond the twelve mile point onto the high seas. I *1092regret such a holding and reluctantly dissent.
. This point will be discussed infra. For now I need only relate the principle of law stated in Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that whenever a government officer accosts a person and restrains his freedom to leave, the government officer has “seized” that person.
. In fact, it appears that the alien problem is presently much more serious than the problem of insuring that American vessels have complied with safety regulations so that the high seas will be safe for international shipping. But, I think this Court is kidding itself if it thinks that the purpose for the majority of the stops in that part of the Western Hemisphere where the Stormy Seas was found is for safety and documentary inspections. What the Coast Guard is rightfully concerned about is the large amount of drugs imported into the United *1082States by vessels in that part of the world. 1 do not think, however, that the problem is any different or more critical on the high sees near Haiti than it is on the Mexican border, and, as a result, I see no reason why a possible drug importer on the high seas should have fewer rights when confronted by the Coast Guard than should a person on land near the Mexican border when confronted by an officer of the Border Patrol.
. It would be interesting to consider what effect the Supreme Court’s recent opinion in Marshall v. Barlow’s, Inc., - U.S. -, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) has on the propriety of even an administrative stopping for the limited purpose of a safety and documentary check. The Court in Marshall invalidated warrantless inspections of employment facilities which fall under the jurisdiction of the Occupational Safety and Health Act of 1970. Is it possible that a warrantless stop limited in scope to safety violations is not justifiable under the Fourth Amendment? This particular point is beyond the scope of this dissent, but is nevertheless something the majority opinion ought to have discussed.
. On cross examination, Agent Wallace admitted that he was looking for weapons, drugs, money, and “any violation that I could find, possibly a gold violation, any violation that Customs would handle.” Record, Vol. 2, at 74.
. Agent Wallace testified that the reason he suspected the ship was on a trip to bring back narcotics was because he had gotten conflicting stories from the Warrens and Cruse about the purpose of the trip. Record, Vol. 2, at 77. Thomas Warren had stated that he was going to Colombia to look at land while Cruse had stated that the Warrens had chartered his boat to go fishing and diving. Record, Vol. 2, at 62-63. Are these two stories in conflict? What would be so unusual about Thomas Warren wanting to go to Colombia for business purposes yet wanting to fish or dive along the way? And, would it be unusual for John Warren to have a different purpose for the trip than his brother? The truth of the matter most likely is that Agent Wallace suspected that the purpose of the trip was for drugs the minute he got on board, and nothing the defendants did caused him to believe otherwise. As a result, Agent Wallace continued to expand his inquiry until he heard and found what he wanted. Unfortunately, this is not the way to constitutionally conduct a safety and documentary stop. A constitutional stopping would be limited in nature, and expansion of the inquiry would be impermissible until the government agents had probable cause to believe a crime had been committed.
. The en banc opinion’s treatment of the existence of probable cause is worth examining since the Coast Guard’s ultimate search and seizure of the Stormy Seas is justified on this theory. The analysis of the en banc opinion places the boarding, interrogation and search of the Stormy Seas within the principle of law set forth in United States v. Odom, 526 F.2d 339 (5th Cir. 1976). This principle of law is that the Coast Guard may conduct searches and seizures and make arrests if during the course of a safety inspection circumstances arise that generate probable cause to believe that a violation of United States law has occurred. The en banc opinion’s analysis begins with the assertion that the Coast Guard lawfully stopped and boarded the Stormy Seas to conduct a safety and documentary inspection. While on board the ship conflicting stories were given regarding the purpose of the trip, and it was observed that no ice was on board the ship and that the diving gear was inoperative. Based on these circumstances, Agent Wallace believed the Stormy Seas was on a narcotics run and this motivated him to ask about the amount of money on board the ship. Thomas Warren responded that he had approx*1085imately $7,000 and that he had not registered it. It is at this point that the en banc opinion asserts that the government had probable cause to believe a crime had been committed, see Majority opinion pp. 1070-1071, and it was shortly after this point (after the agent actually saw the money) that the defendants and Cruse were arrested. Cruse subsequently confessed that the Stormy Seas was on a “pot run”, and the vessel was seized and a further search uncovered evidence confirming Cruse’s confession.
It cannot be seriously questioned that the confession of Cruse was a direct result of his arrest and the arrest of the defendants. Consequently, if the arrests of the defendants and Cruse were invalid, the confession of Cruse would likewise be invalid, and all evidence seized as a result of that confession would be inadmissible.
The en banc opinion reasons that probable cause to arrest the defendants for a currency violation existed after Thomas Warren admitted that he had not registered the money he had taken out of the country. I am not so sure that probable cause to arrest for a currency violation existed at this point, but I am certain that the en banc opinion was remiss in at least not discussing this determination in light of this Court’s decisions in United States v. Schnaider-man, 568 F.2d 1208 (5th Cir. 1978) and United States v. Granda, 565 F.2d 922 (5th Cir. 1978). These cases set forth the principle that a person cannot be prosecuted for failing to file a report when transporting more than $5,000 out of the country unless it can be shown that the person had knowledge of the reporting requirements and a specific intent to commit the violation. The cases go even farther in that they invalidate as a matter of law any convictions unless affirmative steps had been taken by the government to make the laws’ requirements known. See Majority opinion p. 1075. The interesting point about these opinions in light of this case is whether probable cause to arrest for these currency violations can exist without an initial determination of whether the defendant had knowledge of the reporting requirements. It is not against the law to take more than $5000 out of the country. Consequently, if a person’s knowledge of the reporting requirement is an essential element of the offense, can probable cause exist when no evidence regarding this element is known by the law enforcement officer? I am not sure of the answer to this question, but I do believe it to be serious enough to warrant discussion by the en banc opinion.
. Probable cause or consent are the only things which could justify the full scale search and inquiry which Agent Wallace conducted. No lesser degree of suspicion should justify a further inquiry in this case when the Supreme Court stated in Brignoni-Ponce that any further detention or search after a stop by a Border Patrol officer must be based upon either probable cause or consent. 422 U.S. 873, 881-82, 95 S.Ct. 2574.
. It would be interesting to consider what the effect would be on the drug prevention operations of the Coast Guard if the en banc court had not adopted its present position. If the Coast Guard were limited to safety and documentary inspections, it would still have the authority to stop any American vessel anywhere in the world to conduct a safety inspection. We would be naive if we did not acknowledge that under the guise of a safety inspection the Coast Guard could stop a vessel and search practically every area of the boat. While it is true that a safety inspection would not allow the Coast Guard to open drawers, cupboards, etc., the inspection is certainly broad enough in scope to discover if the vessel happens to have a cargo of several tons of marijuana.
. The en banc opinion states, “Although the record does not expressly indicate whether consent was given, we think it a fair inference that at least implied consent was given.” The consent the en banc opinion is referring to is that required by 14 U.S.C. § 141(b) which provides that the Coast Guard may “with the consent of the head of the agency concerned” avail itself of officers from other federal agencies. The statute requires the actual consent of the head of agency concerned — not the implied consent.
. Mr. Justice Bradley’s admonition in his opinion for the court almost a century ago in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1885), is worth repeating here:
It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.
Id. at 635, 6 S.Ct. at 535.
. The en banc opinion states:
Moreover, it is incumbent upon the party moving to suppress evidence to demonstrate a lack of authority for its acquisition. The defendants made no contention either in the district court or on appeal, that consent was lacking.
. It is possible to read the en banc opinion to mean that the defendants waived this error because it was not enough simply to contest the legality of the participation of these agents. Rather, the defendants erred by not also arguing that consent was never actually given from the heads of the relevant agencies. Surely, the en banc court is not holding that a defendant, when he challenges the constitutionality of a governmental activity, has the burden of demonstrating why every possible justification for this activity is inapplicable, and, if the defendant fails to bring up one of these justifications, then he has waived his constitutional attack. Counsel for the defendants challenged the participation of these agents in their written motion to suppress and orally. Nowhere in the government’s responses to these challenges at the district court level is there any mention that 14 U.S.C. § 141(b) might justify their participation. It certainly was not the duty of the defendants to try to figure out how the Coast Guard could justify officers from other federal agencies being on board a Coast Guard cutter hundreds of miles from the United States.
. The en banc opinion’s final proposition in its struggle to justify the participation of these agents claims that even if the agents were not authorized to be on board the Coast Guard cutter, their actions did not invalidate the search and seizure of the Stormy Seas because they were carried out “under the aegis of the Coast Guard.” For this proposition the court cites United States v. Bates, 526 F.2d 966 (5th Cir. 1976). In Bates, a defendant’s automobile *1087was searched at the Mexican border by Customs inspectors. During the inspection a DEA agent assisted one of the Customs inspectors in the removal and opening of one of the tires from the auto. Removal of the tire was prompted by the fact that a Customs inspector has noticed that left rear tire was visually different from the other tires. Inside the tire was found a variety of controlled substances. The defendant argued that the evidence should be suppressed because the DEA agent was not specifically empowered by statute to conduct border searches. This Court refused to reach the question of the scope of the authority of the DEA because:
[T]he search was “conducted jointly by [DEA] Agent D’Antuono . . . and Customs Inspector Nowell . . . ” and thus the search was under “the aegis of the Customs officer.”
Id. at 967.
It is difficult to see how the above factual setting is analogous in any way to our case. The facts of our case indicate that the DEA and Customs officers conducted their own search and interrogation of Stormy Seas and its crew. Their activities were totally distinct from the safety and documentary inspection being carried on by Lieutenant Miller of the Coast Guard boarding party. All evidence that was seized from the Stormy Seas was a direct result of the activities of the DEA and Customs officers. But for their efforts, no evidence whatsoever would have been discovered to justify the subsequent full scale search of the vessel. Thus, it is impossible to compare this situation with the situation in Bates wherein the efforts of the Customs inspectors played a significant if not critical role in the discovery of the evidence against the defendant.