concurring in part II and in the result reached in part I:
I concur in part II of the opinion. However, I find the language in part I unnecessarily expansive and I reach the same result by navigating a straitened channel.
The broad language of the opinion in United States v. Williams, 5 Cir. 1977, 544 F.2d 807, is not, as is suggested by the majority, restricted to “an apparently unseaworthy houseboat moored in a marina four miles from the open seas.” The court there held that the boarding of a vessel “about which there is no apparent customs concern or suspicion of law violation” must be premised on a warrant, or probable cause. “Suspicious circumstances” were found insufficient to justify a document check.
The opinion in United States v. Freeman, 5 Cir. 1978, 579 F.2d 942, dealing with the authority of customs officials to board a vessel in customs waters, is equally categorical in its assertion that not even “a modicum of suspicion” is required to justify detention and boarding of a United States vessel under 19 U.S.C. § 1581(a). Williams is not mentioned in the later opinion.
Because the language of these cases is inconsistent, although their actual results may be rationalized by pointing to factual differences, we should directly confront the question of their relationship when it becomes unavoidable. Such review is unnecessary here. Even assuming the stringent standards of Williams apply, the boarding of the defendants’ yacht was justified by probable cause coupled with exigent circumstances once the customs officers pulled alongside and smelled marijuana. The same facts, added to the marijuana residue found in plain view, validated the subsequent search. It is on that basis that I would hold the stop, boarding, and search of the vessel constitutionally permissible, and would affirm the denial of the defendants’ motion to suppress.