Reasonable Suspicion Not Required for Boating Stops

Last week, we talked about boating while impaired in North Carolina.  We compared the statutes relevant to driving while impaired (DWI) and boating while impaired (BWI) and noted their similarities.  I also mentioned that one of the differences between the two offenses is that there is no requirement that an officer have reasonable suspicion to stop a boat, while an officer may not stop a car without reasonable suspicion that the driver has committed a crime or infraction.  Let’s look more closely at the Court of Appeals reasoning in arriving at this distinction.

The 2000 North Carolina Court of Appeals case State v. Pike presented “a question of first impression for North Carolina, that is, whether a Wildlife Resources Commission officer may stop to conduct a safety inspection of a motor vessel on the waters of North Carolina without having any reasonable, articulable suspicion of criminal activity to justify the stop.”

In Pike, two North Carolina Wildlife Resources Commission officers were patrolling Badin Lake in Stanly County and checking all boats within that vicinity.  At 11:45 pm, they saw defendant’s boat.  They did not observe any illegal activity or any activity that would violate any Wildlife Resources Commission rules or regulations.  The officers stopped the boat and announced that they were going to conduct a safety inspection.  After the safety inspection, the defendant was charged with BWI.  The officers never boarded defendant’s boat.

At trial, the defendant argued that the stop of his boat violated his Fourth Amendment rights, and the trial court agreed.  The Fourth Amendment states 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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Court of Appeals began its reasoning with an acknowledgement that the US Supreme Court has recognized an expectation of privacy with regard to boats.  However, “under the overarching principle of `reasonableness' embodied in the Fourth Amendment, ... the important factual differences between vessels located in waters offering ready access to the open sea and automobiles on principal thoroughfares ... are sufficient to require a different result.”  The key in Fourth Amendment cases is to balance “government interest” against “individual intrusion.”

The Court of Appeals then went on to note that there are two relevant statute provisions in North Carolina.  First G.S. 75A-17 states that

Every wildlife protector and every other law-enforcement officer of this State and its subdivisions shall have the authority to enforce the provisions of this Chapter and in the exercise thereof shall have authority to stop any vessel subject to this Chapter; and, after having identified himself in his official capacity, shall have authority to board and inspect any vessel subject to this Chapter.

Also, G.S. 113-136 states in part that

(a) Inspectors and protectors are granted the powers of peace officers anywhere in this State, and beyond its boundaries to the extent provided by law, in enforcing all matters within their respective subject-matter jurisdiction....

...

(c) The jurisdiction of protectors extends to all matters within the jurisdiction of the Wildlife Resources Commission, whether set out in this Chapter, Chapter 75A, Chapter 143, Chapter 143B, or elsewhere. The Wildlife Resources Commission is specifically granted jurisdiction over all aspects of:

(1) Boating and water safety;

...

(d)(1) In addition to law enforcement authority granted elsewhere, a protector has the authority to enforce criminal laws under the following circumstances:

(1) When the protector has probable cause to believe that a person committed a criminal offense in his presence and at the time of the violation the protector is engaged in the enforcement of laws otherwise within his jurisdiction....

The court went on to conclude that “our statute [G.S. 75A-17] clearly requires no articulable suspicion or probable cause to stop a vessel for a safety check.”

However, the court acknowledged that there had to be some balance against the government interest and went to try to determine what "other safeguards are [to be] relied upon to assure that the [defendant's] reasonable expectation of privacy is not `subject to the discretion of the official in the field.'"  In doing so, it looked at a 1999 case from Texas, Schenekl v. State, which dealt with a similar set of facts, except in Schenekl, the officers boarded the defendant’s boat for a safety check.

The Texas court relied on US Supreme Court Fourth Amendment cases and held that a driver of a boat has an expectation of privacy, but it is a “diminished one.”  It reasoned that

[i]n weighing the level of intrusion, we consider the individual's expectation of privacy, the length and scope of the detention, the alternative means available in light of the statute's contribution to the state interest, and the discretion given law enforcement officials.

The court went on to compare the means available to the State to enforce its laws and noted that road safety policeman have more options available than do water safety officers.  A car’s license plate and inspection tags can be observed without stopping a car, but the outwardly observed “numbers on a boat do not indicate compliance with safety requirements.”  In addition, much of the required safety equipment on a boat (like life jackets and fire extinguishers) cannot be outwardly observed.

The Texas court then considered fixed checkpoints, which is another option available to road safety policemen.  The court recognized that fixed checkpoints would not work in the context of boating safety enforcement because "vessels can move in any direction at any time and need not follow established `avenues' as automobiles must do."  If a checkpoint was set up at a dock or boat ramp, this would not determine “whether a boater complied with safety requirements while actually on the water.”  The court concluded that there “appear to be no other means as effective as the seizures authorized by the Act [the state's statutes].”

The North Carolina Court of Appeals agreed with the Texas court’s analysis of the viable options for checking compliance with boating safety regulations and held that it was “necessary that vessels be stopped in order to do safety checks.”  The court also recognized an important distinction between Pike and Schenekl; in Pike the officers “never boarded defendant's vessel to inspect it. Thus, their interference with defendant's right to privacy was even less intrusive than in Schenekl.”

The court held that “the officers' stopping defendant without probable cause—for the purpose of inspecting defendant's vessel—was reasonable.”  They further held that “once the officers stopped defendant for inspection purposes, they had the right to arrest him pursuant to N.C. Gen.Stat. § 113-136, having (at that time) reasonable cause to believe defendant was operating the vessel while impaired.”

The court was careful to acknowledge that the balance involved in Fourth Amendment cases is fact specific and that “facts different from this case may have resulted in a different outcome.”

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