Did Game Warden Have the Right to Search My Car?

November 21, 2013

Question: I was out fishing at Lake McSwain. A man was there before me but didn't catch anything. I got lucky and caught two trout right away, then decided to go try out a different spot. I was planning on doing a whole day of fishing and didn't want the two fishes to spoil, so I gave them to the man that had not caught any. As I was leaving, a game warden showed up. I told him I caught two but gave them away because I'm heading to a different spot. He wanted to search my car and I let him because I didn’t have anything to hide. After not finding anything, he then told me those two fish count towards my bag limit so I can only catch three more, even if I move to a different spot. Now my question is, does he really have the right to search my car just like that, and is it correct that I can only catch three more fish after I gave those two away? What happened to the five fish in possession regulation? (Anonymous)
 
Answer: Good question, but the game warden was correct. No more than one daily bag limit may be taken or possessed by any one person (California Code of Regulations Title 14, Section 1.17). There is a difference between the bag limit (the number you can take per day) and the possession limit (the maximum number you can have in your possession). Just because you gave two fish away, this did not set the slate back to zero so that you could take five additional fish that day. In addition, the man you gave your fish to could then keep only three additional fish that day because he had your two fish in his possession, and he would be limited to a total of five fish in possession.
 
As far as the request to search your vehicle, any officer can ask for your consent to inspect a vehicle. Your question indicates you “let him” inspect your car because you had nothing to hide. This was perfectly legal.
 
Whether an officer has the authority to conduct an inspection when consent is not given depends upon the specific circumstances of the contact. Wildlife officers have extensive inspection authorities that are unique to their jobs. For example, it is a crime to refuse to show an wildlife officer “… all licenses, tags, and the birds, mammals, fish, reptiles or amphibians taken or otherwise dealt with under this code, and any device or apparatus designed to be, and capable of being, used to take birds, mammals, fish, reptiles, or amphibians” (Fish and Game Code, Section 2012). Also, wildlife officers are authorized to inspect all receptacles, except the clothing actually worn by a person at the time of inspection, where birds, mammals, fish, reptiles, or amphibians may be stored or placed (FGC, Section 1006).

The DFW power to search is very broad.  If they reasonably believe that you have been fishing/hunting, but does not have any reasonable suspicion that you have violated any fish and game laws, they can search your car.  I think it was a bad ruling, but bad cases make bad law.

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

In the present case, a fish and game warden (hereafter game warden), surveilling a public fishing pier from a distance with a spotting telescope, observed defendant Bouhn Maikhio fishing with a handline from the pier and catching either a lobster or fish that defendant placed in a small black bag by his side.   Although from his position the game warden could not identify the item defendant had caught and placed in the bag, the warden was aware that, although it was unlawful to do so, such handlines were often utilized in that location to catch spiny lobsters, which were out of season at that time.   After the game warden saw defendant leave the pier with the black bag, enter a car in the pier parking lot, and drive away, the warden stopped defendant's car a few blocks from the pier, introduced himself as a game warden, and asked defendant if he had any fish or lobsters in his car.   When defendant denied having any, the game warden looked in the car, saw the black bag on the floor of the rear passenger area, opened the bag and discovered a spiny lobster.   Upon questioning, defendant admitted taking the lobster and said he had been “stupid” to do so.   The game warden issued a citation to defendant and thereafter returned the lobster to the ocean.

When misdemeanor charges were subsequently brought against defendant based upon this incident, defendant filed a motion to suppress the evidence obtained by the game warden on the ground that the warden had engaged in an unconstitutional search and seizure in stopping defendant's car under the circumstances described above.   The trial court agreed with defendant's contention, suppressed the evidence, and dismissed the charges.   The appellate division of the superior court reversed the trial court's ruling, but the Court of Appeal, after accepting transfer of the appeal, affirmed the trial court's dismissal of the charges in a divided decision.   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.

...

Weighing (1) the special need of the state to stop persons who choose to fish or hunt in this state and to demand such persons display all fish or game that have been taken against (2) the intrusion upon such persons' reasonable expectation of privacy entailed by such a stop and demand, we conclude that the vehicle stop and demand at issue here constitutes a reasonable procedure under the Fourth Amendment.   Accordingly, we reverse the Court of Appeal judgment upholding the suppression of evidence obtained by the game warden and subsequent dismissal of the charges against defendant.

From my understanding dfg/ game warden does not have to have a search warrant to search your vehicle or home. But if they search your home they are only allowed to search your refrigerator/ freezer.

From my understanding dfg/ game warden does not have to have a search warrant to search your vehicle or home. But if they search your home they are only allowed to search your refrigerator/ freezer.

Don't know where you heard that. 

"Applying these principles in the present context, we conclude that (1) the state's interest in protecting and preserving the wildlife of this state for the benefit of current and future generations of California residents and visitors constitutes a special and important state interest and need that is distinct from the state's ordinary interest in crime control, (2) the administrative regulations that are required to serve this interest — involving, for example, limits on the number, size, and species of fish or game that may be taken at different times and in different locations — are of such a nature that they would be impossible to adequately enforce if a game warden could stop, and could demand to be shown all fish or game that have been caught by, only those anglers and hunters who the warden reasonably suspected had violated the fish and game laws, and (3) the impingement upon privacy engendered by such a stop and demand procedure is minimal because (i) the stops are limited to those persons who have voluntarily chosen to engage in the heavily regulated activity of fishing or hunting and as a consequence have a diminished reasonable expectation of privacy with regard to items directly related to such activity, and (ii) the required demands are limited to items directly related to fishing and hunting and do not require disclosure of intimate or confidential matters as to which such persons retain a substantial privacy interest. - See more at: http://caselaw.findlaw.com/ca-supreme-court/1571450.html#sthash.05KMVw92.dpuf"

Personally, I think the courts got the case right.  Hunting and Fishing is, in my opinion, a privilege and not a right.  I know quite a few people disagree with me on that, but that's where I stand.

Hunting and Fishing is, in my opinion, a privilege and not a right.  I know quite a few people disagree with me on that, but that's where I stand.

While I understand the spirit of your comment, I believe the right to fish is in the CA constitution. 

Nate

You are most certainly correct Nate

CALIFORNIA CONSTITUTION
ARTICLE 1  DECLARATION OF RIGHTS


Section 25.  The people shall have the right to fish upon and from
the public lands of the State and in the waters thereof, excepting
upon lands set aside for fish hatcheries, and no land owned by the
State shall ever be sold or transferred without reserving in the
people the absolute right to fish thereupon; and no law shall ever be
passed making it a crime for the people to enter upon the public
lands within this State for the purpose of fishing in any water
containing fish that have been planted therein by the State;
provided, that the legislature may by statute, provide for the season
when and the conditions under which the different species of fish
may be taken.


That doesn't mean I have to feel any different about it

Hunting and Fishing is, in my opinion, a privilege and not a right.  I know quite a few people disagree with me on that, but that's where I stand.

While I understand the spirit of your comment, I believe the right to fish is in the CA constitution. 

Nate

Agree with Nate on this one.  But even if it is a privilege, should one give up other rights for that privilege?

-Allen

I'm still with the court on this one.  The person chose to hunt or fish. 

Fishing is a right given by the constitution, but it also essentially states that you're required to follow the rules and regs set by statute/FGC.  So if you have exercised your right to fish under the constitution, you have also exercised the requirement to follow the FGC rules.  By doing so, you're giving up the right to privacy specifically surrounding those rules.

I've definitely shifted my position on this in the last 5 years as I've become more of a supporter of native fauna species.  They're a treasure to our state and belong equally to everyone to enjoy.  So I say that if people choose to take public resources then they're giving up their right to privacy as it surrounds those resources.

Does I carry the same stance for other things that relate to public resources?  Like people stealing from the state? probably.  But that's just my opinion on it.

As long as you are dealing with DFG is an area that is not a Constitution free zone....

I'm still with the court on this one.  The person chose to hunt or fish. 

Fishing is a right given by the constitution, but it also essentially states that you're required to follow the rules and regs set by statute/FGC.  So if you have exercised your right to fish under the constitution, you have also exercised the requirement to follow the FGC rules.  By doing so, you're giving up the right to privacy specifically surrounding those rules.

I've definitely shifted my position on this in the last 5 years as I've become more of a supporter of native fauna species.  They're a treasure to our state and belong equally to everyone to enjoy.  So I say that if people choose to take public resources then they're giving up their right to privacy as it surrounds those resources.

Does I carry the same stance for other things that relate to public resources?  Like people stealing from the state? probably.  But that's just my opinion on it.

I happen to think that bird watchers infringe on the native fauna, and should be licensed to do so.  They should also be subjected to searches of their computers for pictures that are evidence of overly disturbing the native fauna.  Imagine how that would go over!

-Allen

I happen to think that bird watchers infringe on the native fauna, and should be licensed to do so.  They should also be subjected to searches of their computers for pictures that are evidence of overly disturbing the native fauna.  Imagine how that would go over!

-Allen

You're free to think what you want on that one, just sue them!  Of course, keeping those evil birders away is exactly what the Land Trusts are for!

I happen to think that bird watchers infringe on the native fauna, and should be licensed to do so.  They should also be subjected to searches of their computers for pictures that are evidence of overly disturbing the native fauna.  Imagine how that would go over!

-Allen

You're free to think what you want on that one, just sue them!  Of course, keeping those evil birders away is exactly what the Land Trusts are for!

Yes certainly.  But how do you think that would go over?

-Allen

Yes certainly.  But how do you think that would go over?

-Allen

I think it would go over as well as you would imagine.  I don't think they're taking a public resource through pictures so I can't support that unfortunately.  However if they are not careful and trampling on public grounds irresponsibly, fine the sh*t out of them!

Why should we tolerate a new incursion into freedom from unreasonable searches?  The police don't have a reasonable suspicion of a crime, yet may search anyway.  That is unreasonable.  Historically, such searches could only occur at entry points into the country and on the seas.  This is an incursion.  We should not stand for it.

Sorry guys, and don't get me wrong; I'm all for preventing poachers and the preservation of our natural resources. And I respect the mission of the DFW and that is why I pay for my licenses, and comply with all of their extensive requirements. However, many of my ancestors have died in battle to defend the supreme law of our land. I don't give up my 4th amendment rights of Search and Seizure because the California Courts decided it was okay to illegally violate the constitution and set legal precedent. The fact is that it's totally illegal and if the case were to go to the US Supreme Court it would be shot down as unconstitutional.  As long as federal law applies to me and I can be charged and convicted, then it applies to public servants as well. Fortunately I haven't been approached, because I'm certain I'd probably get myself thrown in jail. Warrantless searches and illegal detainment are simply not okay, regardless of the mission, in the United States. Just my opinion.