Warden search authority?

[utah400elk]

BOHNTR

The most recent case info I could find is dated 2010. Is there a newer decision?

A quick recap for everybody. A Warden sees a guy hand lining on a pier. The warden watches the guy catch something. The warden does a traffic stop after the guy leaves the peir. The warden asks the guy if he caught anything. The guy says no. The warden searches the vehicle and finds a lobster that is out of season. The guy says it is an illegal stop and search. The court says...

The appeals court

On these facts there can be no serious question Fleet was entitled to stop Maikhio's car under the authority provided to him by Fish and Game Code[1] sections 1006 and 2012. It is true section 1006 does not permit game wardens to make random stops for the purpose of determining whether citizens have 1197*1197 engaged in regulated hunting or fishing activity. (See 4 Ops.Cal.Atty.Gen. 405, 407-409 (1944).) However, in interpreting the predecessor to section 1006, the Attorney General was careful to distinguish the unfettered right to stop any vehicle, which the Attorney General rejected, from the situation which arises here, where a game warden has good reason to believe that the occupants of a vehicle have been recently engaged in regulated hunting or fishing. Under the Attorney General's interpretation of the statute, a warden's observation of a vehicle emerging from a duck club during the open season would give the warden the "right to stop the car and inquire if any game had been taken. If possession of game was denied, the warden would not have the right to search the car in the absence of probable cause.

it also says...

" Under the Attorney General's interpretation of the statute, a warden's observation of a vehicle emerging ,from a duck club during the open season would give the warden the "right to stop the car and inquire if any game had been taken. If possession of game was denied, the warden would not have the right to search the car in the absence of probable cause for believing that such a denial was untrue. If possession was admitted, he would have the right to demand an exhibition of the game under Section 403 of the Fish and Game Code. A refusal to exhibit the game would give rise to probable cause for searching the car without a warrant [citation]." (4 Ops.Cal.Atty.Gen., supra, at p.

the Calfornia Supreme court says...

Because defendant‟s conduct after being lawfully stopped provided Fleet
with probable cause to search defendant‟s vehicle and the black bag within the
vehicle, we have no occasion in this case to determine (1) whether section 1006
authorizes a game warden to search a vehicle occupied by an angler or hunter (or a
receptacle within such a vehicle) without probable cause or reasonable suspicion,
or (2) if section 1006 authorizes such a search, whether such a search would be
permissible under the Fourth Amendment.
*
Associate Justice of the Court of Appeal, Second Appellate District,


The Supreme court says the Warden had probable cause so they could search. They then specifically say the have not looked at wheather the search is lawful if there is no PC. but the appellate court specifically answered that question.

I stand behind my accertion that no PC= No Search. I also stand behind my accertion that officer safety dose not trump the 4th amendment.

Is there any case you can point me to that says a game warden can search your vehicle without PC? To say that a warden can search your vehicle just because you are hunting or fishing is nonsense. I have taught search and seizure for more years than I care to remember. If you trully are a 26 year vetran then you know I am right. You should actually review the case law before you spewing your rhetoric. Review the entire decision oldman357 posted...might be benificial to you.

 

[sbhooper]

I have never had a problem with game wardens and have been friends with many over the years as fellow law enforcement. I do, however, know that they get out of control with their searches etc., just because nobody ever challenges the search in court. I have seen narcotics cases built using the guise of a game warden doing a freezer search.

New Mexico had it broken off in them years back when a warden stopped a truck load of Texas hunters just because they were obviously hunting. Due to the fact that a couple of the people looked like gang bangers, criminal history checks were run on the individuals. One was found to be a felon in possession of a firearm. The court basically said that just because they were out hunting, there was no reason to have stopped them without pc and thus the check of the individual was wrong also. The case was dismissed.

Unless I was already stopped, I never had a warden stop me while out hunting after that ruling. That was many years ago and I don't know if it is different now or not.

A stretch of authority can eventually lead to losing that authority. If happened to the Border Patrol years ago when they abused searches and lost a lot of authority away from the border.

 

[schmalts]

So what would happen if you said "no I am not hunting I am eating lunch and no longer participating in hunting. I was hunting earlier but emptied my firearm and am done for the day and we are getting ready to go shoot some trap" at what point are you not hunting? We all drive with guns while not hunting at some point.

 

[RobG]

The latitude at which a game warden can do a full body cavity search is what attracts many to that line of work. So it seems.

Remember when they'd give away those free latex gloves with the Brucellosis kits?

 

[spook12]

So what would happen if you said "no I am not hunting I am eating lunch and no longer participating in hunting. I was hunting earlier but emptied my firearm and am done for the day" at what point are you not hunting? We all drive with guns while not hunting at some point.

Personally I wouldn't have a problem handing over my Firearms for inspection,or opening my ice chest. I think It's a similar situation to roadside Wildlife check stations.
However, absent any evidence of a crime LEO'S need to keep their Butt out of my Truck,my House,my camper and tent.

Ask yourself this question. Do you think a judge would have given the officer in the OP a search warrant for the truck with the information that was provided to us. I know that the officer may have seen the encounter differently,but lets just assume that the interaction went down exactly as was told. I don't see any way in the world that a search warrant would be issued.

 

[rhomas]

Damn, game wardens and game laws certainly are different out West. Down here, unless you are entering or leaving a WMA, they can't check your gun if it's in a case inside the vehicle; and especially not if the vehicle is closed and the hunter is outside it. Now, when we are running deer with dogs and standing with a gun, they can stop and check our license, but since we don't have restrictions on the number of shells, or the type of ammo, there isn't any reason for them to check the shotgun.....in a dove field or on a duck hunt, then it's different. Federal game wardens have been known to issue a citation to both dove and duck hunters when they are hunting within 10 miles of a baited field, even if the baited field is in an area unknown to the hunters. There have been instances where the Feds have baited fields just for the purpose of writing tickets to hunters who had no idea the areas were anywhere around.

 

[Sytes]

My big problem with the whole incident is that he opened the truck and started pulling guns out without saying a damn thing. Does he have the authority to search a vehicle without consent?

This is the position of California Supreme Court re: Game Warden authority:

To protect and preserve the wildlife of the state for current and future generations, California — like other states — has adopted numerous statutes and regulations governing the conduct of persons who fish or hunt in this state, prescribing, for example, the places where fishing or hunting may occur, the seasons in which particular species may be taken, the number and size of different types of fish or animals that may be caught or shot, the means by which particular types of wildlife may be taken, and the licenses, permits, and records required for different fishing and hunting activities.   To make possible the effective enforcement of these regulations, California law has long required anyone who chooses to fish or hunt in this state to exhibit or display, upon demand of any official authorized by California law to enforce the fish and game statutes and regulations (1) any required fishing or hunting license, (2) all fish or game the angler or hunter has caught or taken, and (3) any equipment capable of being used to take such fish or game.

http://caselaw.findlaw.com/ca-supreme-court/1571450

Simply offering information on California Supreme Court's decision related to the question you pose.

 

[KRasmussen]

This is the position of California Supreme Court re: Game Warden authority:


http://caselaw.findlaw.com/ca-supreme-court/1571450

Simply offering information on California Supreme Court's decision related to the question you pose.

While I agree with the above Supreme Court ruling, I do not agree that a warden has the right to open a closed door and start pulling guns out without asking to see them first. I would hate to think what would have happened if I had taken my concealed pistol with me and had it strapped on.

 

[utah400elk]

There is a huge difference in a LE demanding that you produce your license and reaching into you back pocket to search your wallet for a license. They can and should be allowed to demand your license, to check your catch/kill and to check your equipment. They simply can't search without PC. If the situation happened how you described (I have no reason to doubt you) then I believe they conducted an illegal search of your vehicle. The Warden had the right demand that you show him your license, firearm and doves. If you refused, then he might have been able to search your vehicle (see my previous post with the decision from the CA appellate court). However, just because you were hunting does not give him the authority to search.

 

[Sytes]

While I agree with the above Supreme Court ruling, I do not agree that a warden has the right to open a closed door and start pulling guns out without asking to see them first. I would hate to think what would have happened if I had taken my concealed pistol with me and had it strapped on.

Ya, I hear you. The case presented goes into the Warden's search of the vehicle, retrieving a black bag on floor of the back seat area containing out of season lobster(s). This was done w/o consent.

Is this a concern over the officer enforcing in a manner you feel was illegal or the California law he is charged with enforcing?

I'm not playing the California Warden side please do not take my question wrong. It is an answer responding to the specific question quoted. Apparently California believes it is not "unreasonable" (4th US Amendment reference) for your Warden to search your vehicle and examine your firearm(s) w/o consent within the scope of his duties.

 

[RobG]

Not sure what is up in Montana... they don't even check your license or the tags at the game station anymore (Seems like I remember that they used to do this).

 

[spook12]

Sytes in the case you referenced the Officer had witnessed the person doing something that could have been illegal and was looking for evidence to support or disprove his observations. ( He had PC to suspect that a crime had been commited),and more than likely had time allowed could have secured a Search Warrant based on his observations.
In the OP we have read nothing that suggests that KRassmusan was a suspect of any crime...........Unless we want to consider Hunting a crime and forfeit our right to unreasonable searches.

 

[elk_hunter]

I'm willing to bet that Roy would have treated this situation differently than KRasmussen's warden did...though, I would like to hear what his thoughts are (specifically with regard to the topic of whether a warden has the right to inspect without first asking)

 

[utah400elk]

Inspect and search are two different things in the Law.

 

[Sytes]

Sytes in the case you referenced the Officer had witnessed the person doing something that could have been illegal and was looking for evidence to support or disprove his observations. ( He had PC to suspect that a crime had been commited),and more than likely had time allowed could have secured a Search Warrant based on his observations.
In the OP we have read nothing that suggests that KRassmusan was a suspect of any crime...........Unless we want to consider Hunting a crime and forfeit our right to unreasonable searches.

This was the court of appeals thoughts.

1. Handline use is not illegal.
2. Warden did not see an illegal act.
3. Warden stopped the vehicle and conducted a search.

The majority opinion in the Court of Appeal concluded (1) that the game warden was permitted to stop defendant's car only if the warden was aware of facts that provided reasonable suspicion that defendant had violated an applicable statute or regulation, and (2) that the facts in this case did not provide such reasonable suspicion because the game warden was not able to see what item defendant had caught with the handline and defendant could lawfully have used a handline to catch some species of fish other than spiny lobster.

With this information in mind, the California Supreme court overturned the Appeals court ruling, stating:

On the People's petition, we granted review to determine whether a game warden who reasonably believes that a person has recently been fishing or hunting, but lacks reasonable suspicion that the person has violated an applicable fish or game statute or regulation, may stop a vehicle in which the person is riding to demand the person display all fish or game the person has caught or taken.

...
Such administrative searches and seizures are permissible when (1) the governmental action serves a special and important state need and interest distinct from the state's ordinary interest in enforcing the criminal law, (2) the administrative rules or regulations that are required to achieve the state's interest are of such a nature that limiting inspection only to those persons reasonably suspected of committing a violation would seriously undermine the state's ability to meet its special need, and (3) the impingement upon the reasonable expectation of privacy of those subjected to the procedure is sufficiently limited such that the state's need to utilize the procedure outweighs the invasion which the search entails, thus rendering the procedure reasonable for purposes of the Fourth Amendment.

That, is not probable cause.

Edit: my initial post link to the case law quoted seems broken. Here is the link again for any interested in review.
http://caselaw.findlaw.com/ca-supreme-court/1571450.html

 

[spook12]

Sytes,Read that last paragraph that you quoted.

If I'm understanding it,it states that you can be stopped at any time that an officer believes you have been hunting.(you don't have to be suspected of a crime.) The Officer can then demand that you display your Fish and Game. Where does it say that the officer has the right to then enter your property without ,PC or a Warrant?
If the OP had admitted to hunting and had shown his birds upon demand(as I believe he stated) but had refused to produce his Firearm for inspection(to see if it's capacity made it legal) then the Officer would have had PC to enter his Truck.

 

[Sytes]

Sytes,Read that last paragraph that you quoted.

If I'm understanding it,it states that you can be stopped at any time that an officer believes you have been hunting.(you don't have to be suspected of a crime.) The Officer can then demand that you display your Fish and Game. Where does it say that the officer has the right to then enter your property without ,PC or a Warrant?
If the OP had admitted to hunting and had shown his birds upon demand(as I believe he stated) but had refused to produce his Firearm for inspection(to see if it's capacity made it legal) then the Officer would have had PC to enter his Truck.

Spook, the whole reason why this case brought to the California Supreme Court is due to the dismissal of evidence found ~ typically considered "fruit the poisonous tree".
The appeals ruled in favor of the defendant - that the Warden did not hold the authority to search the vehicle. The California Supreme Court overturned that ruling stating there is an exception due to the special interests of the state.

This is the first line of the last paragraph:

Such administrative searches and seizures are permissible

Like I stated, I am not taking the Warden's side, simply sharing what California law and those charged to enforce the law(s) hold...

 

[spook12]

Sytes I'm done after this one,maybe those smarter than me can better explain it, but here goes.

What the Appeals Court ruled in favor of the Defendant that was later overturned by the California Supreme Court was not the search but rather the stop.
The higher Court ruled that You don't have to be suspected of a crime to be stopped and inspected.That does not however give them the Right to just walk into your home and start poking around just because you have been hunting.What it does give them the right to do is stop and detain you and demand an inspection of your Game and Fish,Weapons,License...........Hunting related items.

 

[Sytes]

Sytes I'm done after this one,maybe those smarter than me can better explain it, but here goes.

What the Appeals Court ruled in favor of the Defendant that was later overturned by the California Supreme Court was not the search but rather the stop.
The higher Court ruled that You don't have to be suspected of a crime to be stopped and inspected.That does not however give them the Right to just walk into your home and start poking around just because you have been hunting.What it does give them the right to do is stop and detain you and demand an inspection of your Game and Fish,Weapons,License...........Hunting related items.

Well, I think you and I are both baffled over California laws. One reason I do not live there. More power to those who do. The issue is and was, the fact the Court of Appeals stated the Warden had no right to stop the vehicle. He had no right to search the vehicle. The evidence the Warden discovered in his search should not have been admissible. Thus the case was overturned in the defendant's favor.

Then California Supreme Court overturned the Appeals Court stating the specifics as quoted below. In a nutshell, the Warden acted in accordance to the special interests of the state.

It is looking at this from what is stated. I have not shared a personal opinion on the matter other then I can understand the frustration though from what has been ruled in California, the officer did not illegally conduct a search as the OP inquired.

Edit added specific to the OP inquiry:

As we shall explain, California authority has interpreted the relevant statute as authorizing a stop of a vehicle occupied by an angler or hunter for such purposes, and the United States Supreme Court has held in a number of decisions that an administrative search or seizure may be conducted, consistent with the Fourth Amendment, in the absence of reasonable suspicion that a violation of a statute or administrative regulation has occurred.   Such administrative searches and seizures are permissible when (1) the governmental action serves a special and important state need and interest distinct from the state's ordinary interest in enforcing the criminal law, (2) the administrative rules or regulations that are required to achieve the state's interest are of such a nature that limiting inspection only to those persons reasonably suspected of committing a violation would seriously undermine the state's ability to meet its special need, and (3) the impingement upon the reasonable expectation of privacy of those subjected to the procedure is sufficiently limited such that the state's need to utilize the procedure outweighs the invasion which the search entails, thus rendering the procedure reasonable for purposes of the Fourth Amendment.

 

[utah400elk]

Sytes,

The last paragraph of the CA Supreme Court Case in question states:

"Because defendant‟s conduct after being lawfully stopped provided Fleet
with probable cause to search defendant‟s vehicle and the black bag within the
vehicle, we have no occasion in this case to determine (1) whether section 1006
authorizes a game warden to search a vehicle occupied by an angler or hunter (or a
receptacle within such a vehicle) without probable cause or reasonable suspicion,
or (2) if section 1006 authorizes such a search, whether such a search would be
permissible under the Fourth Amendment."

In the section you highlight I think you missed a few key points:

As we shall explain, California authority has interpreted the relevant statute as authorizing a stop of a vehicle occupied by an angler or hunter for such purposes, and the United States Supreme Court has held in a number of decisions that an administrative search or seizure may be conducted, consistent with the Fourth Amendment, in the absence of reasonable suspicion that a violation of a statute or administrative regulation has occurred. Such administrative searches and seizures are permissible when (1) the governmental action serves a special and important state need and interest distinct from the state's ordinary interest in enforcing the criminal law, (2) the administrative rules or regulations that are required to achieve the state's interest are of such a nature that limiting inspection only to those persons reasonably suspected of committing a violation would seriously undermine the state's ability to meet its special need, and (3) the impingement upon the reasonable expectation of privacy of those subjected to the procedure is sufficiently limited such that the state's need to utilize the procedure outweighs the invasion which the search entails, thus rendering the procedure reasonable for purposes of the Fourth Amendment.

That is directly from the CA Supreme Court.

In short this case clearly states Wardens/LE can conduct limited inspections in and around hunting. It clearly does not address searches.

Like You I don't live in CA, but it is very important to me that people have a complete understanding of the Constitutional Rights.