In Erie boater's case, Pa. appeals court affirms constitutionality of safety inspections

A Pennsylvania appeals court has weighed in with yet another precedent-setting decision in a Lake Erie boating case that has been floating around in the justice system for more than seven years.

In a 7-0 decision issued Tuesday, the state Commonwealth Court ruled that a state waterways conservation officer did not violate the constitutional rights of an Erie boater when the officer stopped the boater's 22-foot Sea Ray cabin cruiser near Gull Point, off Presque Isle State Park, in May 2016.

The officer stopped the boat for a random check of fishing licenses and to perform a safety inspection, according to court records. He charged the boater, Frederick W. Karash, with the summary offense of failing to have enough personal flotation devices.

Five people were on the boat, but only four flotation devices were on board, according to the charge. The stop occurred at 7:30 p.m. on May 20, 2016.

Karash ended up getting fined $75. He appealed, representing himself in a case that was the first of its kind in Pennsylvania.

"While we agree Defendant had an expectation of privacy in his boat," the Commonwealth Court said in its 24-page decision, "we determine that, consistent with Pennsylvania vehicle laws generally, Defendant's expectation of privacy on his boat was a diminished one."

Boater decries ruling, says he is reviewing it

Karash, 43, who now lives in Colorado, said by telephone that he is considering whether to appeal to the state Supreme Court.

Karash said the Commonwealth Court ruling shows that "obviously the people of Pennsylvania enjoy living under the boot of tyranny. They deserve what they get."

Karash said he left Pennsylvania because of the injustice. In a filing in his appeal, Karash referred to the commonwealth as "dirtbag usurpers."

Also in his appeal, Karash claimed that the waterways conservation officer, with the Pennsylvania Fish and Boat Commission, erred by stopping his boat without suspicion of wrongdoing and without a warrant. Karash said the officer, James Smolko, violated his rights against unlawful searches and seizures under the Pennsylvania Constitution and the Fourth Amendment of the U.S. Constitution.

Boater won on appeal, but then case took a turn

At one point, Karash appeared to have won an appellate decision that would have upended boating regulations statewide. A three-judge panel of the state Superior Court ruled in a split decision in 2017 that Karash's rights had been violated.

The panel ruled that random safety checks of boats are unconstitutional, and that the Fish and Boat Commission should perform such checks in a manner similar to how police conduct random DUI checkpoints on roads. The Superior Court set aside Karash's $75 fine in that precedent-setting ruling.

The Erie County District Attorney's Office asked a larger panel of the state Superior Court to reconsider the case. The panel decided in May 2018 that it lacked key information to rule, and it sent the case back to Erie County Judge John J. Mead for further review.

Mead first heard Karash's case after Karash was found guilty of the summary offense at a trial before Erie 1st Ward District Judge Sue Mack in June 2016. Karas appealed, and Mead in September 2016 convicted him and fined him $75. Mead refused to throw out the evidence against Karash based on his constitutional claims.

Mead made the same rulings against Karash when he got the case back from the Superior Court. Mead reimposed the $75 fine in May 2019.

Karash appealed again to the Superior Court, which hears appeals of criminal cases. The Superior Court in April 2020 transferred the appeal to Commonwealth Court, which hears appeals involving state agencies, such as the Fish and Boat Commission.

Commonwealth Court, DA say stop was 'reasonable'

The Commonwealth Court ruling, designated as precedent, affirmed Mead's refusal to suppress the evidence against Karash. The ruling also upheld Mead's conviction of Karash and the $75 fine.

The ruling, by Judge Stacy Wallace, Wallace said the inspection of Karash's boat was proper under the circumstances, especially given the Fish and Boat Commission's authority under state law to perform checks of fishing licenses and safety equipment.

The ruling noted that the Smolko, the waterways conservation officer, did not board Karash's boat, though he could have, and that he performed the inspection from his boat in less than 40 minutes.

"A WCO must necessarily detain a boat on the water in order to conduct fishing license checks and safety equipment inspections," according to the ruling. "In balancing the Commonwealth's legitimate interests in the safety of its citizens, including those enjoying Pennsylvania's waterways, against the minimal intrusion of Defendant's brief detention, Officer Smolko's stop and detention of defendant's boat while he conducted the fishing license check and safety equipment inspection was reasonable."

The prosecutor who handled the appeal, Michael Burns, said he is pleased with what he called the Commonwealth Court's "thorough and comprehensive analysis."

"In this case, the boater's expectations of privacy are diminished and a limited search and seizure without suspicion is reasonable under limited circumstances," said Burns, an assistant Erie County district attorney.

Contact Ed Palattella at epalattella@timesnews.com. Follow him on X @ETNpalattella.

This article originally appeared on Erie Times-News: Erie boater loses case over constitutionality of PA safety inspections