Opinion
Def. I.D. No. 0007004667
Date Submitted: May 1, 2001
Date Decided: August 22, 2001
Appeal from decision of Court of Common Pleas. Reversed and Remanded.
David Hume, IV, Esquire, 114 E. Market Street, Georgetown, DE 19947, attorney for the State of Delaware.
Edward C. Gill, Esquire, P.O. Box 824, Georgetown, DE 19947, attorney for Defendant Scott A. Arnold.
This is an appeal which the State of Delaware ("the State") has filed pursuant to 10 Del. C. § 9902(b) and (c) seeking a review of a decision of the Court of Common Pleas ("CCP") suppressing evidence the State sought to introduce against defendant Scott A. Arnold ("defendant"). This is the Court's decision on the State's appeal.
FACTS
The facts are taken from the testimony at the suppression hearing before CCP.
On July 7, 2000, Officers Clifford Dempsey and Brian Kaczmarczyk of the Delaware Department of Natural Resources and Environmental Control ("DNREC") were conducting safety inspections of boats and checking for fish size violations from the Indian River Marina floatation dock and boat ramp. The officers attempted to stop every boat; however, they were unable to do so. If they were dealing with a stopped boat, then the other boats coming in the area would go around them and not stop.
The officers stopped the boat in which defendant was riding. Although there was an issue regarding a child's failure to have on a life jacket, the State conceded, and CCP found, that the life jacket violation was not the reason for the stop. Instead, the boat was stopped pursuant to the boat and fish checks. This stop led to the discovery by the officers of marijuana, in a baggie, and a pipe.
Ultimately, defendant was charged with possession of drug paraphernalia and possession of marijuana.
At the suppression hearing, defendant argued that the initial stop was illegal because it was random and subject to the officer's discretion in violation of Delaware v. Prouse, 440 U.S. 648 (1979) (" Prouse")
CCP issued an oral and written decision on the matter. In its decision, it held that the checkpoint stopping procedure allowed some boats to go by and consequently, was random and, to some extent, left whom to stop to the officers' discretion in violation of Prouse. The Court also concluded that the cases of New York v. Burger, 482 U.S. 691 (1987) (" Burger") and State v. Faircloth, Del. Super., Cr. A. No. 94-01-0670, Terry, R.J. (July 6, 1995). which addressed administrative warrantless inspections, applied. In Burger, the Supreme Court held that for an administrative warrantless inspection to be valid, the following three criteria must be met: 1) there be a substantial governmental interest behind the regulatory scheme pursuant to which the administrative inspection is made; 2) the inspection conducted without a warrant must be necessary to further the regulatory scheme; and 3) the regulatory scheme must provide a constitutionally adequate substitute for a warrant, and in order for there to be such, the regulations must advise the class of persons affected that they would be subject to a search, define the scope of that search, and limit the discretion of the inspecting officers. Since the State failed to present evidence regarding this last prong, the Court granted the motion to suppress. The Court further found and held:
I find that the initial stop of the boat on this occasion violated the Fourth Amendment of the Constitution of the United States. The alleged contraband was discovered as a result of and pursuant to the initial stop. Thus, the evidence must be suppressed.
On appeal, the State argues that CCP employed the wrong law regarding warrantless seizures. It argues that CCP employed a probable cause standard when the appropriate standard is reasonable articulable suspicion. It also argues that CCP should have allowed in the evidence pursuant to the plain view doctrine.
DISCUSSION
The standard of review is summarized as follows in State v. Karg, Del. Super., Def. ID# 9911000194, Babiarz, J. (May 31, 2001):
On an appeal from the Court of Common Pleas to the Superior Court, the standard of review pursuant to 10 Del. C. § 9902(b) (c) is de novo for legal determinations, and "clearly erroneous" for findings of fact. [Footnote and citations omitted.] When the factual findings of the court below are sufficiently supported by the record and are the product of an orderly and logical deductive process, they must be accepted notwithstanding the fact that the Superior Court may have reached opposite conclusions. [Footnote and citations omitted.]
I hold that CCP committed legal error in reaching its determination regarding the stop's legality. Burner dealt with an administrative search of property. In this case, the Court is examining whether the initial stop of a vessel was valid. Thus, the criteria set forth in Burger do not apply.
The Court could not locate any law in Delaware addressing what test to apply to determine the reasonableness of the stopping of a boat. Consequently, it looked to law outside the jurisdiction. At least three state courts and the United States Supreme Court treat the stopping of a boat differently from the stopping of a motor vehicle. I review that law below.
In United States v. Villamonte-Marpuez, 462 U.S. 579 (1983), the Supreme Court held that customs officials acting pursuant to a statute which authorized customs officers to board any vessel at any time and place in the United States to examine the vessel's manifest and other documents, and acting without any suspicion of wrongdoing, did not violate the Fourth Amendment by boarding a vessel that was located in waters providing ready access to the open sea in order to inspect documents. In deciding whether the boarding was valid, the Court stated as follows:
Our focus in this area of Fourth Amendment law has been on the question of the "reasonableness" of the type of governmental intrusion involved. "Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interest." Delaware v. Prouse, 440 U.S., at 654, 99 S.Ct., at 1396. [Citations omitted.] . . . But under the overarching principle of "reasonableness" embodied in the Fourth Amendment, we think that the important factual differences between vessels located in waters offering ready access to the open sea and automobiles on principal thoroughfares in the border area are sufficient to require a different result here.
* * *
The nature of waterborne commerce in waters providing ready access to the open sea is sufficiently different from the nature of vehicular traffic on highways as to make possible alternatives to the sort of "stop" made in this case less likely to accomplish the obviously essential governmental purposes involved. The system of prescribed outward markings used by States for vehicle registration is also significantly different than the system of external markings on vessels, and the extent and type of documentation required by federal law is a good deal more variable and more complex than are the state vehicle registration laws. The nature of the governmental interest in assuring compliance with documentation requirements, particularly in waters where the need to deter or apprehend smugglers is great, are substantial; the type of intrusion made in this case, while not minimal, is limited.
Based on these factors, the Supreme Court held the stopping and boarding of the vessel was "reasonable" and did not violate the Fourth Amendment.
In Schenekl v. State, Tex.Crim. App., 30 S.W.3d 412 (2000), the Texas Court of Criminal Appeals was faced with a factual scenario similar to the one currently before this Court. A Game Warden stopped the defendant's boat in order to perform a water safety check pursuant to a state law allowing an officer to stop and board a boat without probable cause or suspicion. The Court determined that it should apply a two-pronged test; it would weigh the State's interest against the level of intrusion. As did the Supreme Court in United States v. Villamonte-Marauez, the Texas court found that fixed checkpoints are impractical on water. The Court concluded that the State's high interest in promoting recreational water safety could be promoted only through random water safety checks and the level of intrusion was minimal. Thus, the Court concluded the statute was constitutional.
In State v. Pike, N.C. Ct. App., 532 S.E.2d 543 (2000), the Court ruled that Wildlife Resources Commission officers' stop of a vessel to conduct a safety inspection in the waters of North Carolina without having any reasonable, articulable suspicion of criminal activity to justify the stop was reasonable and therefore, did not violate the defendant's Fourth Amendment rights. The of Ucers merely stopped the boat; they did not board it. The Court found that there was no alternative to inspecting for boat safety since the waters were open; the defendant had a diminished expectation of privacy; the State's interest in boating safety is great; and the officers' interference with defendant's movement was minimal; thus, the stop was reasonable and did not violate the Fourth Amendment.
Finally, in State v. Casal, Fla. Supr., 410 So.2d 152 (1982), the Florida Supreme Court found that the stopping and boarding of a vessel by Florida Marine Patrol officers in order to check for the boat's registration certificate was reasonable. The Court found that the State had substantial interests in promoting maritime safety, in regulating fishing within the State's waters, and in conserving Florida's marine life. These interests outweighed the defendant's diminished expectation of privacy. Where there was no less restrictive alternative to accomplish the state's goals, spot checks of motor boats are not unreasonable under the Fourth Amendment.
The State of Delaware has substantial interests in promoting maritime safety, regulating fishing, and conserving marine life. See Parts I and II of Title 7 of the Delaware Code 23 Del. C., chs. 21, 22 and 23. The DNREC Fish and Wildlife Agents have the authority to enforce the laws which protect these interests. 7 Del. C. § 102(c), 111, 1913(a); 23 Del. C. § 2126. Since the waters are open to the ocean, the officers cannot have fixed or permanent checkpoints and check all boats travelling Delaware's waters. There is no practical alternative to enforcing the applicable laws and regulations. The officers must make random stops of boats in order to determine that the boating and fishing laws and regulations are not being violated. The defendant had a minimal expectation of privacy in the boat. The intrusion in this case was minimal. The stopping of the boat in this case was reasonable and did not violate the Fourth Amendment.
Since the ruling of the Court below was based upon its conclusion that the initial stop was illegal and since this Court rules that the stop was legal, the matter should be remanded for reconsideration by the Court below. Consequently, the matter is reversed and remanded.
IT IS SO ORDERED.