Last Thursday, a panel of the US Court of Appeals for the 11th Circuit (which handles appeals from District Courts in Florida, Georgia, and Alabama) released an opinion in the case of U.S. v. Alfaro-Moncada upholding the admission into evidence of child pornography found by a US Customs and Border Protection (CBP) Agricultural Enforcement Team during an agricultural reboarding of a foreign ship that had arrived in Miami, FL from overseas. Alfaro-Moncada had appealed his conviction, arguing (among other things) that the CBP search of his cabin, which led to finding DVDs containing child pornography in a desk drawer, had violated the Fourth Amendment.
Following precedent, the Court applied a two-step process in analyzing this border search: Was there a statute authorizing the particular search and, if so was the search reasonable under the Fourth Amendment? Quickly finding that 19 US Code 1581(a), which provides that any “officer of the customs” may “at any time go on board any vessel . . . and search the vessel . . . and any part thereof,” authorized this search, the Court turned to the reasonableness of the search.
First, the Court noted that the relative interest of the individual and the government tilt toward the government in a border search, since, at an international border, the individual has a lesser expectation of privacy than elsewhere and the government has a greater interest in conducting searches. Nonetheless the Court paused to consider whether the higher threshold of “reasonable suspicion” that is required for highly intrusive searches of a person’s body (strip search or X-ray) should apply to a crew member’s cabin, as that is the sailor’s home and homes are particularly protected by the Fourth Amendment. At this point, the Court veered off into a discussion of the possible terrorist WMD threat posed by vessels from abroad, quoting from The National Strategy for Maritime Security and various GAO and Congressional Research Service reports dealing with this threat. Returning to the actual agricultural inspection before it, the Court opined that important national interests were still involved, as evidenced by the damage resulting from the introduction of foreign pests in the past, as well as GAO reports about threats from other agricultural pests and about the threat of bio-terrorism.
The Court summed it all up with the conclusion that the national interest in searching for agricultural contraband at the border is strong and the crew member’s expectation of privacy in his living quarters is weakened when those quarters are brought to the border. “There are no inspection-free zones on a foreign cargo vessel at the border, just as there are none in an airplane or a motor vehicle. Someone who travels to the border in a recreational vehicle that also serves as his home could not reasonably expect that it would not be subject to search. The same is true of a crewman whose cabin, along with the rest of his ship, travels three miles up the Miami River to dock.”
Although, as an aficionado of maritime transportation security, I’m normally happy to see The National Strategy for Maritime Security and some of the more thoughtful GAO reports on maritime security get some publicity, their use here verged on almost hysterical. It tends to reinforce the post 9-11 emphasis on vessels as threat at the expense of the poor seafarer, whose safety and security is now a lesser priority. The case could have been decided without all the drama by simply saying that it was a border search, the entire vessel was subject to inspection with living quarters searches not rising to the sensitivity level of intrusive body searches (just like the RV at the border), and a desk drawer in a cabin could have held agricultural contraband.
NOTE: This post may be copied, distributed, and displayed and derivative works may be based on it, provided it is attributed to Maritime Transportation Security News and Views by John C. W. Bennett, http://mpsint.com
