United States v. James Arthur Streifel, Theodore Scott Jube, Steven Jube and Darlene Brennan

OAKES, Circuit Judge

(dissenting):

I am required to dissent. I agree with both points made in footnote 8 of the majority opinion: the Fourth Amendment does apply to the high seas; United States v. Williams, 617 F.2d 1063, 1094-95 (5th Cir. 1980) (en banc) (Rubin, J., concurring), and the consent of the Panamanian government cannot provide a basis for the boarding, cf. United States v. Conroy, 589 F.2d 1258, 1265 (5th Cir.) (consent of foreign authorities to a seizure unconstitutional in the United States does not dissipate its illegality), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979).1 Nothing I say here, moreover, relates to United States vessels, to searches of either foreign or United States vessels within territorial waters (the three-mile limit) or contiguous waters (the twelve-mile limit), see Note, High On the Seas: Drug Smuggling, the Fourth Amendment, and Warrantless Searches at Sea, 93 Harv.L.Rev. 725, 731-38 (1980), or to administrative vessel-safety inspections, see id. at 738-50. And I readily agree with Judges Rubin, Kravitch, Johnson, and Randall of the Fifth Circuit that with probable cause and the usual exigencies involved in the case of vessels, a warrantless search may be conducted. United States v. Williams, 617 F.2d at 1098-99 (Rubin, J., concurring); Note, supra, 93 Harv.L.Rev. at 727-31.

The case at hand, however, involves the stop and boarding of a foreign vessel on the high seas without probable cause. Unless the ultimately responsible agency promulgates neutral, reviewable rules, I cannot see extending the Terry exception, Terry v. *426Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (law of “stop and frisk”), beyond situations involving an officer on the beat to situations involving “a course of organized police conduct,” United States v. Vasquez, 612 F.2d 1338, 1349 (2d Cir. 1979) (Oakes, J., dissenting) (airport searches by agents of the Drug Enforcement Administration) (emphasis in original), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980). Such rulemaking would both regulate the discretion of law enforcement officers and for the most part eliminate the need, on review, for ad hoc, case-by-case examinations of whether those officers’ suspicions, falling short of probable cause, are reasonable in light of their experience.

The Supreme Court has indicated that Terry should be interpreted narrowly, see Dunaway v. New York, 442 U.S. 200, 210, 99 S.Ct. 2248, 2255, 60 L.Ed.2d 824 (1979) (“Because Terry involved an exception to the general rule requiring probable cause, this Court has been careful to maintain its narrow scope. Terry itself involved a limited, on-the-street frisk for weapons”); Si-bron v. New York, 392 U.S. 40, 60-61 n.20, 65, 88 S.Ct. 1889, 1901-1903 n.20, 1904, 20 L.Ed.2d 917 (1968) (companion case to Terry). See also Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640-2641, 61 L.Ed.2d 357 (1979); Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1922-1923, 32 L.Ed.2d 612 (1972).

A narrow reading of Terry is appropriate because each successive extension of the rule that officers on the beat may make investigatory stops based on reasonable suspicion subjects expectations of privacy to arbitrary invasions at the discretion of individual law enforcement agents. This concern, discussed by the court in United States v. Barbera, 514 F.2d 294 (2d Cir. 1975) (border searches), gives rise to the “regulatory” view of the Fourth Amendment that I have previously endorsed, see United States v. Martino, 664 F.2d 860, 878 (2d Cir. 1981) (Oakes, J., concurring); United States v. Vasquez, 612 F.2d at 1348, 1352 (Oakes, J., dissenting), and that I continue to support here. I fear that a continuously widened Terry exception will eventually swallow the Fourth Amendment; that the “stop and frisk,” already permissible by officers on the beat, Terry, Sibron, Adams, Dunaway, at the border, United States v. Ramsey, 431 U.S. 606, 621-22, 97 S.Ct. 1972, 1981-1982, 52 L.Ed.2d 617 (1977); and at the border’s “functional equivalent,” Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 2539-2540, 37 L.Ed.2d 596 (1973), will become a general search warrant putting, in the words of James Otis, “the liberty of every man in the hands of every petty officer.” See Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 438 (1974).

This regulatory approach, applicable where organized police conduct makes practicable the codification of procedures, would not render the law enforcement agencies of the United States powerless to interdict drug traffic and more particularly to stop “mother ships.” There is no reason that the United States Coast Guard, the Drug Enforcement Administration, and the Customs Service cannot devise “a plan embodying explicit, neutral limitations on the conduct of individual officers,” Brown v. Texas, 443 U.S. at 51, 99 S.Ct. at 2640-2641. See also Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 558, 562, 96 S.Ct. 3074, 3083, 3085, 49 L.Ed.2d 1116 (1976). Evidently there are already Coast Guard boarding manuals, see Note, supra, 93 Harv.L.Rev. at 725 n.5, and both the Coast Guard and the Customs Service have printed formal profiles of smuggling vessels, id. at 730 n.28. The EPIC computer system may also be taken into account though not, perhaps, given conclusive effect. Cf. United States v. Sanders, 663 F.2d 1, 4 (2d Cir. 1981) (border search relying in part on Treasury Enforcement Computer Systems printout held reasonable); United States v. Asbury, 586 F.2d 973, 976 (2d Cir. 1978).

As I read 14 U.S.C. § 89, the statute under which the Coast Guard made the search and seizure in the instant case, Congress contemplated the adoption of rules and regulations by which the officers of the Coast Guard would act. Under subpara-graph (b) of section 89, printed in full in the *427margin,2 Coast Guard officers enforcing the narcotics laws are agents of the particular executive department charged with the administration of those laws and are “subject to all the rules and regulations promulgated by such department . . . with respect to the enforcement of that law.” Just as Congress contemplated rules and regulations “prescribed by the Attorney General” relating to border searches conducted by the Immigration and Naturalization Service, 8 U.S.C. § 1357(a)(3); United States v. Barbera, 514 F.2d at 296-97, so too are regulations contemplated in the case of high-seas stops pursuant to section 89. Absent either a warrant, probable cause coupled with the usual exigencies, or conformity to reviewable rules and regulations, I do not believe that the Fourth Amendment permits the search of foreign vessels on the high seas. Accordingly, it being conceded that none of these was present here, I am compelled to dissent.

. Under Article 22 of the Convention on the High Seas, 450 U.N.T.S. 82, 13 U.S.T. 2313, T.l.A.S. No. 5200 (1958), to which the United States and Panama are signatories, a foreign merchant ship on the high seas may not be boarded unless there is reasonable ground for suspecting that the ship is engaged in piracy or slave trade, or, though flying a foreign flag, is actually of the same nationality as the boarding ship.

. (b) The officers of the Coast Guard insofar as they are engaged, pursuant to the authority contained in this section, in enforcing any law of the United States shall:

(1) be deemed to be acting as agents of the particular executive department or independent establishment charged with the administration of the particular law; and
(2) be subject to all the rules and regulations promulgated by such department or independent establishment with respect to the enforcement of that law.

14 U.S.C. § 89(b).