|Re: Re: Reply to Tim|
Posted by Dave on November 02, 2005 at 21:09:37:|
In Reply to: Re: Reply to Tim posted by Captain Tim on November 02, 2005 at 15:24:07:
I remember someone posted that as it all occured you sat back and observed in your inimitable analytical style to process it all. That is probably quite prudent.
The agency and the task is not what defines peoples rights, it is the Constitution. The Constitution draws no distinction based upon the enforcing entity. I would not be surprised to learn some lower court has ruled the DFG can do this sort of thing as the average person is not going to spend $50K and retain an apellate law firm and get it into a circuit court of appeals. The ACLU does have this type of $ but they go after the big picture, the run of the mill penal code criminals. Setting up two different classes of citizens with different rights to privacy based upon chosen past time violates the 14th amendment's Equal Protection Clause. The 4th and 5th Amendments do not offer unequal protection.
The seemingly polite request to board your boat typically is sugar coating on an illegal demand. It is how cops are taught to lull people into givin gup their rights. The litmus test is when you do exercise your civil rights and see if they actually respect them. For the same reason a diver cannot give consent to having your personal captain's cabin searched, your consent would not transfer to any area of the boat that has "joint use and control". As an example, I was a passenger in a van with some ammo in the glove compartment, my buddy was speeding, CHP pulled us over, he like a spineless wuss consents to a search, I chimed right in and said I have some personal effects in the glove compartment and therefore have joint use and control over, and I do not consent to a search of that particular area. The CHP guy went haywire....at least he was semi-awake during his search and seizure section of his academy training and eventualyl recognized he was outmatched. He tried to threaten me with arrest if I didn't consent to a search, to which I replied that if I then did consent, it wouldn't be freely given, and even if contraband was in that area, a motion to supress under the fruit of the poison tree doctrine would prevail as a matter of routine. Then he tried to further violate my rights by rethreatening to arrest me then he would do a post arrest inventory search which the kangaroo conservative non-libertarian courts have held post arrest inventory searches to be valid absent consent. I then told him that I am explicitly and expressly waiving any and all liability by him and his agency for failing to perform and inventory search, then told him categorically that I have just lawfully removed his right to do an inventory search. He knew he had met his match and gave up, as he met someone who did not fear his criminal BS.
Had you not consented to being boarded, I have no doubt they would have utterly ignored your rights. We use to call it "Contempt of Cop" for people that refused to give up their rights. But they are expecting people to bend over like sheep, and that is why they get away with it. But how can they really treat you harsher for refusing to give up your rights if you are not doing anythign wrong in teh first place?! LE types size up their opposition.....it is human nature for thugs to prey upon the weak and pass over the strong. LE is no different. DFG really has no jurisdiction over much....The Coasties can be all up in your nut.....but I don't think the DFG types are going to check the expiration dates and proper placards on your life preservers.....the DFG already steam rollered over people on the boat, so what worse could have happened.
I really haven't seen much illegal poaching on commercial charter dive boats. We would ostracize anyone who did. Our method works far better then laws. My LAPD aquaintences have winched up others' lobster traps onto their decks and taken lobster of all sizes out to my utter amazement...small fast private dive boats have been known to rape and pillage, but is divers tend to be the more responsible group.
One thing all cops are taught is if you act like there may be no citation issued, people will readily incriminate themselves and/or give up theri civil rights if they think it will result in no citation or to be not harassed....99% of the time it works anyway, and people just walked right off the gangplank. Most LE types have already made up their mind on whether they are going to cite anyone the second they get out of their car or off their boat, but they will try to fool everyone about that.
The problem with all this is you're in the business to provide a service, and considering the measley $ large boats charge, boat owners and captains are lucky if they break even. You simply cannot afford under the current scenario to champion any cause. Divers are usually too busy having a good time to let some DFG type spoil them...we tend to be a group in a good mood even joying an incredible past time, so people's guards are down.....I wonder if a discreet telephone call to senior DFG management out of Long Beach along with some photos of what transpired can maybe get them to revert to just violating peoples civil rights at the dock instead of on your boat. I think divers would have a far easier time complying with peer pressure and rigid insistance by a boat captain upon compliance in return for not having their personal effects illegally rampaged through by goverment goons.
I for one don't want to be on a charter where DFG's are going to blitzkrieg the boat and search my private, personal effects that I have an expectation of privacy with...I will not stand for it but I do not want to let my insistence on privacy cause a delay in the boat movement to the consternation of my fellow divers......it is not their deal, it is mine and I don't want to interfere with my friends enjoyment if they do not have convictions the same as me.
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