Tuesday, September 9, 2008

How Private Is Your Cabin? A New U.S. Court of Appeals Decision

So you board the ship for your cruise, unpack your personal belongings, place your valuable items in the safe and then begin loading up on souvenirs and other purchases as you travel along.  You know security screens your bags (presumably for guns, knives and, at least on some cruise lines, liquor) and that your steward(ess) comes into clean.  But aside from those accepted intrusions are you entitled to keep your cabin "private".

On September 4, 2008, the United States Court of Appeals (the court immediately below the United States Supreme Court) for the Third Circuit ruled you are entitled to that privacy...sort of.  A preface:  in U.S. v. Whitted (http://www.ca3.uscourts.gov/opinarch/063271p.pdf ) the Court found that suprisingly there really aren't many cases involving a person's rights to privacy on cruise ships and, more specifically, private cabins.  But we now have "The Case".

Now, before you all start shouting, "I have my Fourth Amendment rights to privacy and unlawful searches!  You must have a search warrant to enter my cabin!", let me just say:  "Wrong!". The laws of the United States are such that a person has far greater rights to privacy "inside" the country than at its borders.  [How do I get from you are on a ship and I am at the U.S. border:  Say, as here, the ship cruises from St. Maarten to St. Thomas.  St. Thomas is a U.S. territory and, as such, the ship is at the U.S. border.]

At its borders "routine" searches can be done by U.S. government agents without even a suspicion of wrongdoing (ex. Customs...or Department of Homeland Security...inspecting your bags at the cruise terminal or airport) or "non-routine" searches upon "reasonable suspicion".  This is a far lower standard than the infamous "probable cause" standards you have heard of that is necessary for a judge to issue a search warrant.  I will explain...just follow me.

The courts have, however, found that you are entitled to a significantly higher expectation of privacy in your cabin - where you sleep...akin to your home away from home- than you are in the public areas of the ship or even an automobile, essentially because they are living quarters where you asleep rather than areas primarily for socialization or transportation.  Thus, you have a legitimately high expectation of privacy from those other than to whom you give consent to enter (like your stewardess).  This makes any search of your cabin by a U.S. government agent  "non-routine".

After all of that, what is necessary to reach the "reasonable suspicion" standard?  Not much.  All that is necessary is there be a "particularized and objective basis" for that suspicion.  In Whitted the man was a legitimate cruise passenger and did absolutely nothing wrong while onboard the ship.  In fact, when the drug-sniffing dog walked down the ship's hallway he didn't even react when passing Whitted's cabin door! There were not even any reports of him hanging around known drug-dealers (like many of you have seen near the docks in Jamaica).

But he fit a profile of a drug dealer:  (1) He purchased a cruise ticket only shortly before the cruise...in cash; (2) He was previously convicted of drug possession on more than one occasion; (3) He was traveling on a ship that cruised to known drug source countries (and for all of you that didn't know it St. Maaten is a hotbed for such things...as any yachtie...so don't think Jamaica is the only place!); and, (4) Agents in San Juan noted Whitted's behavior seemed suspicious and entered the info into the TECS (Treasury Enforcement Communications System), a computer database.

So with this "reasonable suspicion" the agents and ship's security entered Whitted's cabin, took all of his luggage out from under his bed, pressed all the air out of the closed bags...and then let the dog sniff around.  That is when the dog reacted...to a fake can of shaving cream.  Then the cruise line made it's x-ray machine available and, low and behold, small pebbles were seen inside the shaving cream can.  It then was field tested positive for heroin.

So they caught the "bad guy", but it should be fair warning to everyone that just acting a bit strange may just be enough to create "reasonable suspicion" to have the U.S. government search your cabin while on a cruise when entering U.S. waters. 

Also, remember this relates to what the U.S. government can do; not what the cruise lines can do.  The cruise lines operate under different rules based upon the terms of your cruise contract, the laws of its flag state and The Law of the Seas. In other words, you probably have even less expectations and rights to privacy than those discussed above.  (Remember that broken lamp that was miraculously fixed when you were ashore?  Who gave permission for the crew to enter your cabin and take down the headliner?)

For most of us, it really will never make a difference and we probably don't really care.  But imagine if you come back from your wonderful tour and find all your luggage out and the all the drawers open.  You most definitely would feel your privacy was improperly violated...But was it?