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Search and Seizure on Watercraft and Boats in Georgia Waters, Generally

by merlin on May 18th, 2017
  • Sumo

The statute that governs search of watercraft under State law is Section 52-7-25 of the Official Code of Georgia.  In its entirety, it reads as follows (but pay especially close attention to subsection 4, which I have placed in bold letters and underlined for your benefit):

“(a) Any person empowered to enforce this article and any rule or regulation adopted pursuant hereto shall have the authority to stop and board any vessel subject to this article or any such regulation for the purpose of inspection or determining compliance with this article and is empowered to issue a summons for appearance in court or before a magistrate for all violations of this article or of the rules and regulations prescribed hereunder. Vessels of law enforcement personnel shall be marked to identify them as designated enforcement vessels.

(b) An officer empowered to enforce this article shall have the power:

(1) To arrest on view for any violation relating to boating and all rules and regulations prescribed by the board under this article;

(2) To execute all warrants and search warrants for violations of the boat laws and regulations;

(3) To serve subpoenas issued for the examination, investigation, and trial of all offenses against the laws and regulations relating to boats;

(4) To board vessels in use, for purposes of examining any documents and safety equipment, and to search without warrant any vessel which is not at its regular mooring or berth when he believes that any law of this state or any rule or regulation of the Board of Natural Resources relating to boating has been violated;

(4.1) To board vessels in use or floating, whether moored or not, for purposes of examining any marine toilets, holding tanks, and documents related to them, including records of pump-out and certificates of compliance, and to search without warrant any such vessel to determine compliance with the provisions of this article related to marine toilets when the officer believes that any of said provisions of this article relating to marine toilets have been violated;

(5) To detain the vessel and arrest the operator of a suspected stolen vessel;

(6) To enter upon any land or water in the performance of his duty;

(7) To demand and secure proper assistance in case of emergency;

(8) To exercise the powers and duties of peace officers; and

(9) To investigate any boating accident which occurs on the waters of this state.

(c) Every vessel subject to this article if underway and upon being hailed by a designated law enforcement officer shall stop immediately and lay to or shall maneuver in such a way as to permit the officer to come aboard.

(d) Any person employed or elected by this state or a political subdivision thereof, whose duty it is to preserve the peace or to make arrests or to enforce the law, including, but not limited to, members of the sheriffs’ departments, state patrolmen, and conservation rangers, are empowered to enforce this article. The Department of Natural Resources shall be primarily responsible for enforcement of this article and the rules and regulations issued under this chapter.

(e) It shall be unlawful for any person to resist or interfere by force, menace, threat, or in any other manner with any arrest for violation of this article. It shall also be unlawful for any person to refuse to go with any law enforcement officer of this state after an arrest has been made or to interfere with the officer in the performance of his duty.

(f) The department is authorized and empowered to identify by appropriate signs and markers those public waters in which certain activities may be prohibited or restricted.”

Several treatises have addressed this phenomenon, also.  Specifically, Daniels’ Georgia Criminal Trial Practice, by Jack Goger, in the December 2016 update, states the following information regarding the Georgia watercraft statute:

“In Jackson v. State,8 the Georgia Court of Appeals held that O.C.G.A. § 52-7-25(b)(4) clearly authorized an enforcement officer of the Georgia Department of Natural Resources to stop a boat on Lake Lanier. The court declined to consider the stop under Terry standards and pointed out that the officer need not suspect wrongdoing. Such an officer is authorized “to make investigatory stops of watercraft for the sole purpose of verifying that the operator has the proper documentation and safety equipment. . . . [T]he boating public does not necessarily have the same expectation of privacy on regulated waterways as does the motoring public.” In Peruzzi v. State,9 the Supreme Court turned back a constitutional challenge to the statute noting that Georgia now “joins a growing list of states that recognize the legitimacy of suspicionless boat safety inspections and their minimal impact on the privacy of boaters.””

One year after the Jackson case, described above, was decided, the Court of Appeals heard the case of Dalton v. State, 216 Ga.App. 411, 454 S.E.2d 554 (Ga. Ct. App. 1995), which was notable because the Court specifically described the statute as Constitutional (this issue was discussed very briefly in the Jackson case):

        “Winship E. Rees, Lawrenceville, for appellant.

        Jerry Rylee, Sol., Inez G. D’Entremont, Asst. Sol., Gainesville, for appellee.

        Michael J. Bowers, Atty. Gen., Robert S. Bomar, Isaac Byrd, Sr. Asst. Attys. Gen., Atlanta, amici curiae.

       BIRDSONG, Presiding Judge.

        Jerry Wayne Dalton appeals his conviction for boating under the influence of alcohol. He contends his boat was unlawfully stopped on Lake Lanier because the evidence showed the Department of Natural Resources’ rangers randomly stopped his boat without probable cause or reasonable suspicion that he had committed an offense. Held:

        The record shows that the rangers stopped the boat to conduct a safety inspection and only thereafter suspected that Dalton was under the influence. Dalton was then administered a breath test and two hours after he was stopped his blood alcohol content was .11 grams percent.

        Dalton asserts that the rangers stopped his boat without probable cause to conduct an inspection under OCGA § 52-7-25(a): “Any person empowered to enforce this article and any rule or regulation adopted pursuant hereto shall have the authority to stop and board any vessel subject to this article or any such regulation for the purpose of inspection or determining compliance with this article.” Dalton contends that randomly stopping boats under this article was unconstitutional because police cannot randomly stop and inspect automobiles under Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660.

        As Dalton challenged the constitutionality of OCGA § 52-7-25(a), this court transferred the appeal to the Supreme Court. The Supreme Court, however, returned the appeal to this court. As the Supreme Court returned this case to this court, there is no constitutional issue for resolution. “The transfer of the case by the Supreme Court to this court is a final determination that no constitutional question was in fact properly raised or, if so raised, that it was not meritorious.” Krause v. Vance, 207 Ga.App. 615, 622, 428 S.E.2d 595.

        Therefore, the only issue for resolution by this court is whether the stop was lawful. As the evidence shows the stop of Dalton’s boat was authorized by OCGA § 52-7-25(a), the trial court correctly denied Dalton’s motion to suppress.

        Judgment affirmed.

        BLACKBURN and RUFFIN, JJ., concur.”

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