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Response to Captain Tim's questions regarding the DFG search





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Posted by John Refkin on November 03, 2005 at 08:02:53:

Tim,

DFGs search was legal. Again, I respect Dave’s zeal for the constitution, but case law backed by the age old public trust doctrine clearly states that if you are taking a PUBLIC resource and placing them inside your personal property- you are subject to a search without a search warrant unless the search is of your actual clothing being worn, or if the search is at your home.

A rebuttal to Dave’s points.....
“The boat was boarded without probable cause to believe a crime had occurred”
Wrong, the boat was boarded with probable cause. Being a dive boat and observing that there are divers in the water is probable cause to conduct a search under Fish and Game Code section 1006 and Fish and Game Code section 7702. As long that there is reasonable believe that a person has engage in collecting/ taking a public resource, these searches are legal. I would hate to see you get into trouble because of Dave’s personal hate crusade against the government. The wardens asked permission to board your boat out of courtesy. If you refused, they would have told you that they were coming aboard. If you interfered, you would then be arrested for 148. If Dave is on your boat, let him be the lab rat in this domestic terrorist movement of his. And if Dave is on your boat diving, be sure to let Fish and Game know so he has a chance to prove his points. Back to the other points..

“2. There was no evidence of exigent circumstances negating the need for a search warrant.”
Wrong. Based upon the officers observations and the known activities of your boat, there was reasonable believe that fish/ lobsters were being taken on your boat. Pursuant to Fish and Game code 1006, 2012, and 7702, no search warrant is needed.

“3. Personal effects where the owners had a reasonable expectation of privacy were searched without probable cause.”
Wrong- the probable cause exists in the officer’s observations that diving was taking place and therefore the likelihood that fish (a PUBLIC resource) was being taken.

“4. Personal effects where the owners had a reasonable expectation of privacy were searched without consent.”
A reasonable expectation of privacy is not afforded to any owned receptacle that can contain any fish or game or invertebrate (ie a PUBLIC resource) or any parts of the fish thereof (ie a lobster tail hidden in a empty dive tank) while on a boat at sea or in a vehicle that is used to transport taken game. Again, this is pursuant to the above mentioned Fish and Game Code sections.

Now I am sure Dave will curse and slander me for this so sorry in advance to take away the fun from this website. Dave, like others have said, go F*@k with the Wardens and see what happens to your big court case. Then, I am sure the entire world of DFG will be turned upside down with your wonderful and compelling arguments.

John



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