Is It Legal to Refuse a Search?

January 14, 2010

Question: Over the years I’ve been asked by DFG officials to produce my hunting license, show my game, show my gun and show my shells. However, this past weekend my brother and I, as well as other hunters, were asked at the refuge parking lot to voluntarily submit to a pat down search and to have our gear thoroughly examined for extra shells beyond the 25 shell limit. I really felt like the pat down search was a bit much. We were only a few hundred feet from the parking lot, we arrived well before shoot time and we fully complied without any form of resistance. I’m assuming that since we were asked, we were not required to submit to a pat down search. The only related regulation I can find is this:

“The department may inspect the following: (a) All boats, markets, stores and other buildings, except dwellings, and all receptacles, except the clothing actually worn by a person at the time of inspection, where birds, mammals, fish, reptiles, or amphibia may be stored, placed, or held for sale or storage.”

Given this, I have three questions: Could I have refused to a pat down search? What would have been the repercussions of refusing a pat down search? What are the repercussions of having more than 25 shells in the field while in places where there is a shell limit? Thanks for your response. (Jim I.)

Answer: According to Northern California District Chief Mike Carion, non-negotiable search of the clothing a person is wearing is limited to situations when an officer believes the person may have a weapon. Outside of that, a clothing search can only be conducted with permission or in conjunction with an arrest.

That being said, hunting equipment and all “containers” are subject to inspection by wardens (Fish and Game Code, sections 1006 and 2012). Failure to allow a search is grounds for arrest.

Many types of hunting gear are designed to hold shotgun shells, game, etc. These items are not technically “clothing” as defined by the law, but are more like hunting equipment, and thus would not be exempt from a search inspection. If the purpose of the search is merely to locate hunting equipment, the officer may ask the person to remove this type of hunting gear so it may be searched. For example, a hunter could be asked to remove a hunting jacket, game bag or maybe even waders if they were designed to hold equipment.

A person may deny consent to an officer who wants to search their clothing. But consenting is a smart choice. If an officer believes that a person may have a firearm or other dangerous weapon and there could be a potential officer safety issue, the individual can still be searched.

So, to answer your questions:

1.   Can you refuse a pat down?  Yes

2.   What are the repercussions for refusal? Although this could raise a “red flag,” which may cause the officer to think you are hiding something and may lead to a poor contact, it is legal to refuse to a consent search.

3.   What are the repercussions to having more than 25 shells in the field? You could be cited or possibly ejected from the area.

Since running an answer to a question posed recently regarding game wardens’ rights for search and seizure of hunters, we received requests for clarification.

February 11, 2010

Our game wardens do not have any additional authority to search someone when making regular law enforcement contacts. Absent valid officer safety concerns, there is no search without consent. That being said, any time an officer asks for a consent search, there is a concern for safety or suspicion of a violation or hiding of evidence, etc. The “red flag” reference in the answer was relative to this situation – an increase in an officer’s awareness and alertness would be a normal response to a refusal of such a request.

In the hunting and fishing context, the search authority is much broader. Hunting and fishing are privileges, not rights. The fish and wildlife belong to the people of the state and not to any individual.  Many states, including California, recognize this and have provided a much broader search authority to game wardens when interacting with those who are engaged in hunting and fishing activities.

Searches of containers, equipment and even businesses may be conducted without a search warrant as long as the person involved was clearly associated with hunting or fishing and the search is for equipment used for the take or for fish and wildlife. This search authority is unique and does not apply to any other law enforcement officer in the state.

The difference here is consent vs resistance. Don't consent to search but don't try to stop the warden from searching you either.

"May I search you?"

"No"

"I have reasonable suspicion I'm going to search you anyway"

"Ok"

Refusal to consent to a search does not constitute reasonable suspicion.

If they fear for their safety, they can pat you down to check for a weapon.

"Am I free to go?"
    You have to ask if you're "free to go," otherwise you're voluntarily staying to talk with him. If the officer says you're being detained or arrested tell the officer "I'm going to remain silent."

"I don't consent to a search."
    If an officer didn't need your permission to search, he wouldn't be asking you.


"I'm going to remain silent."
    If the officer has reason to write you a ticket.  He doesn't have need to ask you anything. 

Those three things if you remember nothing else. 

Just pisses me off when the refuges are used by the wardens as 'easy pickin's' for a guy who inadvertantly forgot a shell in a jacket pocket when there are rings of poachers out there.  Disgusts me and I don't know how an LEO can sleep at night when they do that sort of thing. 

Refusal to consent to a search does not constitute reasonable suspicion.

If they fear for their safety, they can pat you down to check for a weapon.

The heat of the moment is not the time to argue about that. Save it for the complaint to his superiors or for a judge if you are cited for something found as a result of the search.

The warrantless search authority of DFW is extremely broad. Just refuse consent, ask if you are free to leave,  and comply. Even if (especially if) you actually have something to hide.

The heat of the moment is a different story.  If he approaches with his hand on his piece he's beyond asking permission.

If he's asks, politely decline.

Dfg- Can i search you?

"No habla"

Dfg-Oh, pero, yo habla espanol....

"You pickin me out, because I speak spanish? Racist bastard! I see the Republicans own the DFG like Dems have the IRS!"

Try it, see how it works!

Will you come bail me out?

Yep