Game Wardens and the Fourth Amendment

game wardens

Underwater Game Warden

Our Fourth Amendment Right To Protection Against Unlawful Search And Seizure Is In Great Peril!!

Please read this recent California Supreme Court case summary (for the full text of the case,
[click here]). Because the U.S. Supreme Court refused to hear it, this decision is the “Law of the Land.” This decision, if wrongly decided, will make our law practice of defending abalone cases more difficult.

The California Supreme Court has unanimously decided that California Game Wardens can lawfully search the vehicles of fishermen leaving fishing grounds without a warrant in the name of “conservation.”

Conservation of fish and wildlife is a very important cause, but not nearly as important as our precious right to be secure from unlawful searches and seizures. There is no cause worthy of degrading the principles upon which this country was founded!!

Our first step onto the slippery slope of government intrusion was in the name of protection from terrorism. They called it the “Patriot Act.” Since “9-11” individual rights in this country have been under constant attack by the right. Now we have lowered the bar to include “conservation” as an excuse for further erosion of our precious Fourth Amendment rights. What will be next?

People v. Maikhio

People v. Maikhio, 51 Cal, 4th 1074 (Cal. 2011)

The California Court of Appeal held on May 1, 2012, that the defendant had been illegally detained. The appellate court found Fish and Game Section 1006 does not authorize, in its text, the inspection of vehicles. The prosecution (people), however, argued that such stops are implied in order to carry out the duties of Section 1006. The Court of Appeal disagreed and ruled for the defendant. The appellate court found that the game warden could not see what the defendant caught and the facts were ambiguous. In such a case, the court held there must be other “specific and articulable facts… to suspect some activity related to crime had taken place.” The appellate court reasoned that the warden acted on a mere hunch or speculation that the defendant had illegally caught a lobster out of season.

The prosecution (people) appealed the judgment from the Court of Appeal, Fourth Appellate District, Division One (California), which affirmed the trial court’s dismissal of misdemeanor charges against the defendant arising from a game warden’s seizure of a spiny lobster taken out of season.

The California Supreme Court reversed the decision of the appellate court, which upheld the suppression of the resultant evidence on the grounds that the search and seizure were unconstitutional. The California Supreme Court held that such a warrantless stop was reasonable under the Fourth Amendment of the U.S. Constitution, because it was in the category of administrative searches and seizures that were permissible absent reasonable suspicion when: (1) the state had a special need distinct from enforcing the criminal law; (2) conducting an inspection only upon reasonable suspicion would not effectively meet that need; and (3) intrusion upon the reasonable expectation of privacy was minimal. Covert observation was a reasonable means of enforcing the fish and game laws.

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