An examination of state statutes authorizing warrantless searches during the course of fish and wildlife enforcement reveals a varying degree of search power in both the scope of search authority and the allocation of search authority to law enforcement. An examination of the history of conservation law enforcement along with case law studies provides an overview of the necessity of fish and wildlife regulation as well as the warrantless search exceptions that are generally deemed appropriate.
Further, a comprehensive study of fish and wildlife enforcement statutes from all fifty states reveals patterns regarding the allocation of search authority for conservation law enforcement. By applying the most effectively constructed statutes to the issue of warrantless searches for fish and wildlife violations, this piece offers solutions to states on how to maintain effective conservation law enforcement without running afoul of the Fourth Amendment.
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Brignoni—Ponce U. Texas U. Ohio U.
Warrants - AST - Alaska Department of Public Safety
Texas, supra, at pp. Lidster U.
Camara v. Municipal Court U. To date, the United States Supreme Court has not directly addressed the question of the constitutional validity of a brief stop of an angler or hunter by a game warden to demand the display of any fish or game in the angler's or hunter's possession, either when the angler or hunter is on foot or is in a vehicle. Both defendant and the People maintain, however, that decisions of the United States Supreme Court arising in other contexts provide guidance as to the controlling Fourth Amendment principles and each party argues that the prior decisions support its own position regarding the asserted invalidity or validity of the vehicle stop at issue here.
Compare Michigan Dept. Sitz U. Martinez—Fuerte U. Defendant argues that because the only prior California decision upholding the constitutional validity of a suspicionless fish and game stop of a vehicle involved a fixed highway checkpoint see Perez, supra, 51 Cal. In response, the People point out that in Prouse, supra, U. See Prouse, supra, at p. The People note that Justice Blackmun's comment in Prouse is the only statement relating to fish and game stops to appear in a Supreme Court decision to date.
They contend that in the fish and game context the factors upon which the high court relied in Prouse — particularly the practical need for and likely efficacy of suspicionless vehicle stops to serve the state interest at issue — support the conclusion that stopping anglers or hunters in vehicles to demand that they display any fish or game they have caught or taken, even without reasonable suspicion of illegal activity, is reasonable under the Fourth Amendment.
The People further contend that the constitutional validity of a suspicionless stop of an angler's or hunter's vehicle by a game warden to demand the display of any fish or game that has been caught or taken is supported by a separate line of Supreme Court cases that, in a variety of contexts, have upheld regulatory or administrative searches or seizures conducted without reasonable suspicion that the individual or business subjected to the procedure has violated a statute or regulation.
Biswell U. Dewey U. Burger U. Railway Labor Executives' Assn. Von Raab U. Acton U. Edmond U. Wisconsin U. In our view, the aforementioned factors to which the high court has looked in its special needs and administrative inspection cases are the appropriate factors to be considered in determining the reasonableness, for purposes of the Fourth Amendment, of the fish and game procedure at issue here.
- BETCHART v. DEPARTMENT OF FISH & GAME.
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As we explain below, the state interest underlying a stop and demand pursuant to section is quite distinct from the state's ordinary interest in the enforcement of its criminal law, and the limited category of persons affected by the procedure — anglers and hunters — are individuals who have chosen to engage in a heavily regulated activity that reduces their reasonable expectation of privacy with regard to the type of intrusion at issue.
Furthermore, in evaluating the factors considered in the special needs and administrative inspection cases, we believe it is useful to begin by considering whether, under the Fourth Amendment, it is reasonable for a game warden to stop an angler or hunter who is not in a vehicle — that is, an angler or hunter who is on a pier, in a boat, or in the field — to demand that he or she display any fish or game taken, without reasonable suspicion that the angler or hunter has violated a fish and game statute or regulation.
Thereafter, we consider whether even if such a stop of an angler or hunter who is not in a vehicle is constitutionally permissible, a suspicionless stop of a vehicle occupied by an angler or hunter who is or has recently been fishing or hunting is or is not constitutionally permissible. As noted above, the relevant cases have first considered the nature and strength of the state interest or need that is sought to be served by the procedure at issue, and whether that interest is distinct from the state's ordinary interest in enforcing its criminal law. Here, the state interest at issue is the state's interest in protecting and preserving the fish and game resources of the state for the benefit of all of the public and for future generations.
The legitimacy and importance of this state interest are reflected in a number of provisions embodied in the California Constitution Cal. Past cases have described the state interest in preserving and managing its natural resources, including its wildlife, as great and compelling see, e. Harbor Hut Restaurant Cal.
Witsell U. Seacoast Products, Inc. Oklahoma U. People v. Brady Cal. This state interest is quite distinct from the state's ordinary interest in crime control, and in this respect is comparable to the types of state interests involved in the high court's special needs cases. Second, many of the regulations that are required to further the state's interest in preserving species of fish and game for the current and future generations concern, for example, the specific species, number and size of fish or animals that may be caught or taken.
Violations of these types of regulations are not readily apparent from an angler's or 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. Prouse, supra, U. In reaching this conclusion, the United States Supreme Court relied heavily upon its determination that 1 the state interest in ensuring that those persons driving on its roads and highways have a valid driver's license was adequately and much more effectively served by stopping vehicles that commit traffic violations and checking the stopped drivers for valid licenses and registration than by choosing randomly to stop vehicles from the entire universe of drivers to check for driver's licenses, and 2 that an unlicensed driver would be as readily deterred by the likelihood of being involved in an accident or stopped for a traffic violation as by the chance of being randomly stopped for a spot check.
Prouse, supra, at pp. Volker 2d Cir. Third, for a number of reasons, we conclude that the intrusion upon privacy engendered by a game warden's stop of an angler or hunter to demand the display of his or her catch or take is relatively minor.
To begin with, the stops are limited to persons who a game warden reasonably believes are or have recently been fishing or hunting — persons who have voluntarily chosen to engage in an activity that is heavily regulated in order to assure the continued existence of the wildlife of this state for the benefit not only of future generations but for the benefit of current anglers and hunters themselves.
Volker, supra, F. In addition, the intrusion upon privacy occasioned by such a stop and demand is further diminished because the required display is limited to items directly related to the person's fishing or hunting activity and does not require the disclosure of unrelated possessions in which the angler or hunter reasonably retains a substantial privacy interest.
Finally, because section strictly limits the items that a game warden may demand be displayed, the statute significantly constrains a game warden's discretion in a manner that closely comports with the state interest in question. Balancing the importance and strength of the state's interest and need for the suspicionless stop and demand procedure against the limited impingement upon privacy resulting from that procedure, we conclude that the Fourth Amendment does not preclude a state from authorizing a game warden to briefly stop a person the warden encounters on a pier, in a boat, or in the field, who the warden reasonably believes has recently been fishing or hunting, to demand that the person display all fish or game that he or she has caught or taken, even in the absence of reasonable suspicion that the person has violated a fish and game statute or regulation.
Indeed, both the Court of Appeal and defendant appear to concede this point, because both acknowledge that, even in the absence of reasonable suspicion, in this case Fleet could have stopped defendant and demanded display of any fish or lobsters in his possession had Fleet confronted defendant while defendant was on the pier or in the pier parking lot, rather than in his car. Defendant argues and the Court of Appeal concluded, however, that a different constitutional result is compelled here because Fleet stopped defendant to demand the display of his catch while defendant was in a car rather than on the pier or in the pier parking lot.
Even if we assume that the stop of a car on a public street or highway involves a greater intrusion on privacy than the stop of an individual when the individual is on foot, when the vehicle stop is made by a game warden reasonably close in time and location to an individual's fishing or hunting activity, the impingement upon the individual's reasonable expectation of privacy is quite modest, and no more intrusive than the actions of game wardens that have been upheld in prior California decisions.
In light of the importance of the state interest served by such a stop, and the practical need to be able to make such a stop and demand even when there is not reasonable suspicion that an angler or hunter has violated a statute or regulation, we conclude that when a game warden reasonably believes that an occupant of a vehicle has recently been fishing or hunting, the warden does not violate the Fourth Amendment by stopping the vehicle to demand the display of all fish or game that have been taken.
We note that the great majority of out-of-state decisions that have addressed the question of the validity of suspicionless stops of anglers and hunters by game wardens have found such stops constitutionally permissible. Although many of the cases have involved fixed highway checkpoints see, e. Fraire 9th Cir.
Sherburne Me. State, supra, So. Albaugh N. Tourtillott Or. Halverson S. State Ga. Layton Ill.
Rethinking Closely Regulated Industries
Keehner, supra, N. Colosimo Minn. Boyer Mont. Most of the out-of-state decisions that have found roving suspicionless fish and game stops unconstitutional have involved instances in which the stops were not confined to persons the game warden had reason to believe had recently been fishing or hunting see, e.
Munoz 9th Cir. Coca Colo.