BO,
I checked your profile, but it doesn't really matter, I wasn't labeling you as anti anything. I too was offering an opinion. This is what I do. As you likely well know even officers in the same unit will have disagreements as to what you can or should do in any given situation. I encourage such intelligent discourse.
In regard to your question about getting a warrant, I'll go one step further. I would have questioned the stop of the vehicle. However, it appears and the court reasoned that a California statute authorizes such a stop. There is very little detail as to what transpired in the search for the bag. I really can't comment, but it was a question in my mind as well. This decision was in the 9th circuit so it really has very little effect on me. Keeping in mind that my statutes are very similar, but with slight differences, here is how I would have handled a similar situation in Colorado.
Observation from afar is how we do it as well. We'll sometimes use plainclothes or hides to observe the activity. This and animal counts is where the Swarovski binos and spotting scope earn their worth. Clearly the person was fishing. The officer should have been able to see something leave the water, be hauled up by the line and taken off the hook and placed in the bag. Articulating some signs of life exhibited by the critter would really help. This is sufficient to believe some wildlife is in possession. If I could identify what was caught or not, doesn't matter. The reason to believe a person was involved in hunting, fishing or trapping and in possession of wildlife authorizes an inspection of licenses, firearms, equipment and wildlife. I would have made a plainclothes contact or had another officer do the same before the person got to their vehicle. Ask what is in the bag. Typical answer, "nothing". Ask to inspect it; the answer is in the negative. My statute would allow me to arrest the person for failure to allow inspection. A search incident to arrest would reveal what was in the bag. If that theory wouldn't work then a warrant would be in order.
Again, in this case the search and how it was conducted was somewhat vague, but in either case the failure to allow inspection is an arrestable crime that allows other theories for the search to come into play. In this case, the automobile exception was also involved.
I don't understand your attack about me doing some soul searching and finding another line of work. My job is to provide for future generations to enjoy the wildlife of this state whether they hunt, fish or just want to know those critters are there. I make it my business to know and apply all laws to the best of my abilities. No soul searching needed; did that many moons ago and am prepared to do what I must to the best of my ability.
I'm happy to continue if you wish, but I have to get to work now. Typing this while answering phone calls hurts my head.
Take care,
RB
Quote:
Originally Posted by Brush Okie
Everyone opinion was asked for I gave mine. Hint, look at my profile before you make me out to be anti LE.
Long story short the ends and intend do not justify the means. The few tricks up your sleeve you need to make sure you are not violating peoples rights unintentally. If he had such good probable cause why did he not call on his radio and get a warrent like he is supposed to? BTW what PC did he have? The guy was fishing. So what specific action gave him PC? Remember "furtive movements" are NOT enough for PC. Long story short the warden cut corners and was wrong IMHO. His job is to uphold ALL the laws of the land not just catch poachers, there is a differance there. If you can not see the differance perhaps you need to do a little soul searching or get into a diffrent line of work.
BTW this little case law could be used against YOU in the future to justify someting you are legally doing but someone decied to cut a corner and you get screwed in the process.
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