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The Illinois Appellate Court upholds the warrantless search and seizure of boater

Background:

In the case of People v. Butorac, 2013 IL App (2d) 110953, an Illinois appellate court examined the rights of a boater who was subject to a warrantless entry and search of his boat while he was boating on it.

The Court held that because of the unique nature of boating, a substantially relaxed Fourth Amendment protection allowed conservation officers to search and seize a boat and its operator, following which the operator was arrested for Boating Under the Influence.

Section 2-2(a) of the Boat Registration and Safety Act (“Act”) (625 ILCS 45/2-2(a) (West 2010)) permits law enforcement officers to “board and inspect any boat at any time” in order to investigate if the occupants are complying with the Act.  Timothy Butorac was boating on a portion of the Fox River located between Elgin and St. Charles, in suburban Chicago Illinois.

Upon making contact with Department of Natural Resources (“DNR”) conservation officers, Butorac was charged with, and eventually convicted of, operating a watercraft while under the influence of alcohol, contrary to 625 ILCS 45/5-16(A)(1)(b) (West 2010).  He appealed, asserting that the Act, as applied to his circumstances, was unconstitutional under the United States and Illinois Constitutions, both of which prohibit “unreasonable searches and seizures”.  In a 2-1 decision, the Illinois Appellate Court, Second District, ruled that it was not and affirmed his conviction.

Facts:

DNR officers stopped the defendant’s boat on the Fox River solely based upon section 2-2(a) of the Act. The defendant was doing nothing suspicious at the time.

At the point where the officers stopped defendant, the river is about 200 yards wide and is surrounded on both ends by two dams, which are approximately 6 ½ miles away from one another. It is one of the more popular boating areas on the Fox River. There are no lane lines or buoy markers. 

At the time the officers were on “routine patrol” in a 14-foot long, unmarked boat. Both officers were in uniform and were wearing a badge located on their hats and on their life jackets.

For approximately five hours prior to stopping defendant’s boat, the officers had stopped every boat (20-25) they saw to check for a valid registration, life jackets, fire extinguishers, and a horn or whistle, all of which the Act requires. They stopped the defendant’s boat the first time they saw it.

When the officers observed defendant’s boat, the officers were stationary. They approached his boat, and not having a siren, they pulled up next to it, identified themselves as conservation officers and asked defendant to put his boat in neutral, which he did.

The officers asked defendant to produce his registration and safety equipment, which he was able to do without leaving his seat. The atmosphere between the police and defendant was friendly and jovial.  At no time did the officers board, attempt to board or ask to board the boat.

In the course of their inspection, the officers noticed numerous alcoholic beverage containers and that the defendant had glassy, bloodshot eyes and slurred speech. They arrested him for operating a watercraft under the influence of alcohol.

Legal analysis:

The general issue in the appeal was whether the officers acted with “unbridled discretion” in such a manner as to violate the United States and Illinois Constitutions’ prohibitions against unreasonable searches and seizures? On a more basic level, the court was asked to address the issue, should a search and seizure of a watercraft that takes place without probable cause be treated the same way as a motor vehicle road block that would apply to a DUI arrest?

The United States Supreme Court has upheld motor vehicle stops absent probable cause (DUI roadblocks) provided certain factors are present. For instance, see Illinois v. Lidster, 540 U.S. 419, 421 (2004).

The Illinois Supreme Court has identified the factors that should be present to justify an otherwise unconstitutional search and seizure in a DUI roadblock situation. People v. Bartley, 109 Ill. 2d 273 (1985) Supervisors should make the decision in advance to set up the roadblock.  Vehicles should be stopped in a pre-established, systematic fashion.

Guidelines should be established for how the roadblocks are actually operated in terms of where personnel will be situated, where vehicles will be funneled and what information should be requested. Courts should also look at whether the roadblock is safe; the degree of advance publicity; and the extent to which the state showed the roadblock was part of official policy

Other factors include the length of the stop, the nature of the questioning and whether the police also conduct a search. Finally, the courts should analyze the subjective factors-how much fright annoyance and intrusion of a psychological nature would the motorist be required to endure? No one factor or lack thereof is dispositive.

The majority opinion declined to apply the same standards to boarding a boat as courts had applied to roadblocks. After analyzing case law from a number of states, as well as United States Supreme Court precedent, the appellate court concluded that a boat on the Fix River was more like a large ship headed to the open seas than it was an automobile.

Factors the court took into account were that the river is wide, it was crowed that day, it was difficult to set up a fixed checkpoint, the officers were in uniform, the boat was not large enough to block passage, all boaters were stopped, the intrusion was brief and the potential harm great.

In essence, the court sanctioned roving stops. The court left open the possibility that the outcome may have been different had the officers physically entered the boat and noted, that “nothing in our holding condones random, nonsystematic, suspicionless seizures of individual boats by officers with unbridled discretion”.

The spirited dissenting opinion felt that the majority had gone out of its way to assume the existence of many facts not supported by the record if those facts favored the state and to ignore those facts favorable to the defendant. The dissent opined that the majority has given carte blanche to any officers to arbitrarily stop any boater.

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