Jim Porter: Game wardens may stop hunters and fishermen
June 30, 2011
TAHOE/TRUCKEE and#8212; Game wardens were given more leeway by the California Supreme Court to stop hunters and fishermen, checking for licenses and fish and game taken.
On a mid-August night in 2007 at around 11 p.m., Fish and Game warden Erik Fleet was monitoring the Ocean Beach public pier in San Diego with a spotting scope. He noticed a man, later identified as Bouhn Maikhio, fishing on the pier and#8220;handlining,and#8221; which is an illegal method of catching lobsters by putting bait on a weighted treble hook and when a lobster crawls on the hook, jerking up the line, penetrating the lobster and up he (or she) comes. Illegal as you can get because it injures or kills the lobster which may be undersized.
Fleet watched Maikhio catch and then put something in a black bag and drive away. Fleet stopped him right away. When asked if he had caught anything on the pier, Maikhio replied and#8220;No.and#8221; Fleet saw the black bag in the car, inspected it, found the illegal lobster and cited Maikhio. He was charged with possessing a spiny lobster out of season and failing to exhibit his catch upon demand. Officer Fleet put the lobster back in the ocean. I like that.
Maikhio challenged the arrest as a violation of his Fourth Amendment freedom from unreasonable searches and seizures. Of course.
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May a game warden, aka and#8220;gamey,and#8221; ask to see a hunter’s game or an angler’s creel and ask for his license? A long standing practice in California. May the warden do so once the fishermen or hunter has left the scene in a vehicle? A more complicated issue.
The trial court agreed with Maikhio’s claim and suppressed the (lobster) evidence, ruling the search illegal. The Court of Appeal affirmed, finding the game warden could not stop the defendant’s car unless there was reasonable suspicion, which was lacking. The case went to the California Supreme Court. The decision was the first Supreme Court opinion written by our new Chief Justice Tani Cantil-Sakauye.
Fish and Game Code
Under Fish and Game Code section 2012, the law being challenged, a warden may demand to see all licenses, tags, and any birds, mammals, fish and reptiles taken by hunters or fishermen.
The California Supreme Court voted unanimously to uphold that law and#8212; and further ruled that a warden may stop a vehicle occupied by an angler or a hunter who has been fishing or hunting, even without a reasonable suspicion that the fisherman or hunter has violated a law.
The basic right to make hunters and fishermen exhibit their catch while on a pier, in a boat or in the field was confirmed and expanded by the Court to when they are in a vehicle in close proximity to where they have been fishing or hunting.
All a warden needs is knowledge that the person is or has been fishing or hunting, then stops by the warden are legal as and#8220;those persons 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,and#8221; wrote the Chief Justice.
Protecting wildlife is and#8220;a special and important state interest and need that is distinct from the state’s ordinary interest in the enforcement of its criminal laws and#8230; violations of these types of regulations are not readily apparent from an angler’s or a hunter’s outward appearance or conduct, and realistically can be detected only if a game warden is able to stop and demand the required disclosure of any person who the warden reasonably believes is or has recently been fishing or hunting.and#8221; In other words, there is no and#8220;probable causeand#8221; requirement as there is for police and sheriffs officers, or and#8220;reasonable suspicionand#8221; requirement and#8212; if the warden knows the person has been fishing or hunting.
I can see how this Opinion will not be well received by some hunters and fishermen, but I think it is appropriate. Otherwise it is practically impossible to catch violators, and these days illegal taking of fish and game is rampant.
I learned something new in this case. A person fishing from a public pier, something I’ve never done, is not required to obtain a fishing license but must comply with all other applicable fishing regulations, like seasons and size of fish.
It will be interesting to see if this case get appealed to the U.S. Supreme Court.
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at email@example.com or at the firm’s website http://www.portersimon.com.