Re: DF&G search

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Posted by CalDiver on November 29, 2000 at 17:05:38:

In Reply to: Re: DF&G search posted by Ken Kurtis on November 29, 2000 at 11:50:50:

Interesting question by non-hunter Ken. Easier question as it relates to hunter JRM.

A few thoughts:

If you are a hunter, you are choosing to engage in a highly regulated activity. Thus, there is a fundamental premise that there is an implied consent to effective supervision and inspection as directed by statute. Here’s what may be inspected under Fish & Game Code § 1006 (section titled “Inspection of boats, buildings and receptacles”)

“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.

(b) All boxes and packages containing birds, mammals, fish, reptiles, or amphibia which are held for transportation by any common carrier.” (emphasis added).

So, Game wardens may inspect receptacles, except the hunter's clothing, where wildlife may be stored. But the caselaw requires that the search must be reasonable.

What is reasonable is the question. What’s reasonable for a game warden ain’t the same as what’s reasonable for a Drug Enforcement Agent; it’s broader for the warden. Wardens may, WITHOUT a warrant, enter and patrol private open lands where hunting occurs to enforce fish and game laws (Betchart v. Department of Fish & Game, supra, 158 Cal. App. 3d 1104); search a restaurant to inspect commercially caught fish (People v. Harbor Hut Restaurant, supra, 147 Cal. App. 3d 1151); board a vessel to inspect the fishing haul (People v. Di Bernardo (1978) 79 Cal. App. 3d Supp. 5); and inspect containers known to be used to hold game (People v. Johnson, supra, 108 Cal. App. 3d 175). The reason for permitting a search to occur without a warrant in the hunting context is that a getting a warrant takes time, and if the search of a hunter cannot be made immediately, it will usually be totally impossible to make it. People v Maxwell (1969) 275 CA2d Supp 1026. (If you’re searching a meth lab, by contrast, chances are it’ll still be there when you go get a warrant, thus not as much urgency).

But … is it reasonable to shake down Ken, a non-hunter? Probably not, unless the warden could reasonably infer from Ken’s appearance that he’s taken game (coming off the Redondo Breakwall with a huge grin and a thrashing, opaque bag at 11:30 p.m. at the opening night of lobster season? Enough.)

However, I betcha Fish & Game reads this part of the statute :“fish … may be stored” to say that Ken COULD have a fish in his picnic basket and therefore it’s searchable, even if he denies he’s hunting. The Court would likely look at the totality of the circumstances -- is Ken dressed for diving, carrying a spear, trailing blood (hmm, this may lead to other questions) ? -- in determining whether the search was proper. But see, in Maxwell above, that a search of sacks carried by passengers disembarking from a sport fishing boat (§§ 1006, 2012) was not unreasonable within the meaning of US Const 4th and 14th Amends., or Cal Const Art I § 19[§ 13] because the warden reasonably believed the sacks contained fish. Same logic could be applied to a diver. As long as the warden reasonably believes there’s game, then the search will likely be upheld.

Of course, the Court also looks at expectation of privacy. You may have a reasonable expectation of privacy in the contents of your car, not so much the contents of your ice chest which is sitting outside the car. This caselaw is always developing, though; keep an eye out as these cases tend to get reported in the news.

Personally, I think those F&G guys work mighty hard trying to make sure the rules we’ve agreed on are followed, in hopes of preserving the fish population. Nothing makes me more nuts than somebody getting a seafood dinner by breaking the rules I carefully observe. Therefore, I am more than happy to let them search everything I have. Of course, if there were anything I were worried about a peace officer seeing, I would very clearly state my objection to the search. Also, there are a lot of people who, justifiably, are simply offended by government instrusion. I think they are well within their rights to refuse the warden's seach of, say, their car.

As always, none of this is legal advice and is only an illustration of what some California cases have said. Happy hunting. Or not. Whatever. ( ;

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