c32:No. 78-5630

COLEMAN, Circuit Judge,
concurring specially.
With misgivings about the wisdom and correctness of this decision, I concur. I do so because the result appears to be mandated by our prior decisions, which a panel has no power to change. I confess my antipathy to barriers raised by the judiciary to the effective enforcement of laws designed to curb illegal drug traffic which, without doubt, is one of the most deadly menaces confronting this Country today.
Under the terms of Section 89(a) the Coast Guard is statutorily empowered to board any vessel lying in United States waters to inspect documentation. Such a boarding is not a traditional search or seizure. Furthermore, there could hardly be much expectation of privacy in what is left in plain view of sight or senses before such a boarding takes place.
There is no real difference here between the boarding of the vessel and a search of one’s person and effects when boarding a commercial airplane, except that all intended airplane passengers are searched whereas all vessels are not. Yet, the illicit drug menace threatens thousands, perhaps millions who will never board a commercial plane.
Canaveral had no documents. The marijuana was in plain view of one looking for the registration number, a procedure which everyone knows is sure to follow the absence of documents. If I were deciding on my own, I would hold that as to the Canaveral there was no transgression of the Fourth Amendment. With or without a request, the Coast Guard could board and inspect. Anything thereafter found in plain view was not a search.
Moreover, the exclusionary rule, itself the product of judicial legislation, should be abolished. It is no longer a fortress for the protection of Fourth Amendment rights. Instead, it has been converted into a machine gun in the hands of outlaws, whose conduct makes a Fourth Amendment irregularity look like a Sunday School picnic. Law enforcement officials, Congressmen, Senators, and prosecutors are publicly announcing that the importation of illegal drugs simply cannot be stopped. Of course not, when a direct apprehension such as occurred here can be overturned on such small pebbles. The drug traffickers are happy. Why shouldn’t they be? The odds are all tilted in their favor while the law abiding citizen, the mothers and fathers of children in need of protection from the drug menace, stand helpless — all because of a judge-made rule. If this were going on in any other civilized nation we would pronounce it ridiculous, or worse.
If a judge of an inferior court may be so presumptuous as to say so, I think the Supreme Court should be given an opportunity to clarify this clouded field. What does the Fourth Amendment really require in cases like this one?

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