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Old 06-21-2011, 18:41   #1
Roguish Lawyer
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CA Supreme Court says Game Wardens don't need a Warrant

http://www.courtinfo.ca.gov/opinions...ts/S180289.PDF

What do y'all think?
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Old 06-21-2011, 19:19   #2
Ambush Master
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In Texas, the Game Wardens are THE MOST POWERFUL LEOs!! They catch you hunting, fishing, etc without a license or with illegal catches and they can confiscate everything!!! The Car/Truck, Boat/Trailer/ all equipment!! If they raid your residence and find illegal game guess what!!!

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Old 06-21-2011, 19:55   #3
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Yes, folks I did read it

Yes, folks I did read it.

I think it boils down to page four. The fact that the warden could not ID what was put in the bag did not give him cause to search - but because CA has a warm and fuzzy for game it was OK.
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Old 06-21-2011, 20:11   #4
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I read it, too, and - based on the history of the on-going problems in the area and the observed actions of the fisherman - would think the game warden did have cause to check the contents of the bag to ensure it was not an illegal catch.

Richard
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Old 06-21-2011, 21:13   #5
Tress
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Quote:
Originally posted by Ambush Master:

In Texas, the Game Wardens are THE MOST POWERFUL LEOs!! They catch you hunting, fishing, etc without a license or with illegal catches and they can confiscate everything!!! The Car/Truck, Boat/Trailer/ all equipment!! If they raid your residence and find illegal game guess what!!!


If I remember correctly it is pretty much the same in Pennsylvania. The PA game wardens and fish and boat officers have sweeping powers and pretty much can do almost anything that they wanted. They can go on your land any time they feel it is necessary without your knowledge nor with any prior notification/warrant.

I have actually seen them in action a few times, but only because I was the one that called them. There was a bunch of yahoos that lived up the road a bit that hunted for whatever crossed by their back door, whenever they felt like it, baited the deer, bear & turkeys (all illegal in PA), etc. They were actually driving down the road on opening day during rifle season, saw a doe crossing in front of them, stopped the vehicle and shot the doe in the middle of the road.

Every year the game wardens would nail them for something. And the beauty of the whole situation is that in PA. everything that you own that was used during an illegal hunt can be confiscated immediately. So if you transport an illegally taken animal they can confiscate your vehicle and you do not get it back if your are convicted.

Personally, I never minded the game wardens' broad powers since I never hunted or fished illegally. I never understood why one needed to bait deer, bear and turkeys when you could not swing a dead cat without hitting at least one in northeast PA.

Tress
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Old 06-21-2011, 21:58   #6
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Originally Posted by Tress View Post
If I remember correctly it is pretty much the same in Pennsylvania. The PA game wardens and fish and boat officers have sweeping powers and pretty much can do almost anything that they wanted. They can go on your land any time they feel it is necessary without your knowledge nor with any prior notification/warrant.

I have actually seen them in action a few times, but only because I was the one that called them. There was a bunch of yahoos that lived up the road a bit that hunted for whatever crossed by their back door, whenever they felt like it, baited the deer, bear & turkeys (all illegal in PA), etc. They were actually driving down the road on opening day during rifle season, saw a doe crossing in front of them, stopped the vehicle and shot the doe in the middle of the road.

Every year the game wardens would nail them for something. And the beauty of the whole situation is that in PA. everything that you own that was used during an illegal hunt can be confiscated immediately. So if you transport an illegally taken animal they can confiscate your vehicle and you do not get it back if your are convicted.

Personally, I never minded the game wardens' broad powers since I never hunted or fished illegally. I never understood why one needed to bait deer, bear and turkeys when you could not swing a dead cat without hitting at least one in northeast PA.

Tress
Tress,

As someone who lived in NEPA the better portion of my early life, I concur 100% with your post. Saw many poachers spotting deer at night in my area; not too many fishing violations. However, spoke with many wardens (not because I was in the wrong, just in passing) over the years and they expressed the same things as you have about their authority in such cases.
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Old 06-22-2011, 00:41   #7
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Quote:
Originally Posted by Pete View Post
I think it boils down to page four. The fact that the warden could not ID what was put in the bag did not give him cause to search - but because CA has a warm and fuzzy for game it was OK.
The Game Warden knew that something had been placed into the bag, what it was is what was in question. The Warden pulled the vehicle over, questioned the driver, and knew that the driver was lying when he said he did not catch anything. That right there should have been probable cause.

I do not see the difference for example if a police officer pulls some over for speeding, walks up on the car and sees a "tobacco" pipe on the front seat. The drivers eyes are blood shot, that right there is probable cause to search the car for the illegal substance.

Game Warden saw the catch, requested to see the catch, saw the black bag which the unknown catch had been place into on the pier, and commenced his search.
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Old 06-22-2011, 07:29   #8
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As a lifelong fisherman I personally don't have a problem with Game Wardens, by and large they're pretty professional in NC when I've come into contact with them...and they've also been handy sources of information about where the fish have been biting.

Theirs is a pretty thankless job of ensuring that the game management plan is being followed to provide quality fishing and hunting for the next generation of outdoorsmen.
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Old 06-23-2011, 06:14   #9
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Quote:
Originally Posted by Ambush Master View Post
In Texas, the Game Wardens are THE MOST POWERFUL LEOs!! They catch you hunting, fishing, etc without a license or with illegal catches and they can confiscate everything!!! The Car/Truck, Boat/Trailer/ all equipment!! If they raid your residence and find illegal game guess what!!!

Later
Martin
This is pretty much the same in Florida.

Here in the Conch Republic,, it is a very large problem. The Game Wardens now have sniffer dogs specifically for lobster. Catches of "out of season" or Shorts can run in the hundreds,, not just one or two..

They also have air support, spotting divers using "lobster hotels", relaying to chase teams on the water.

The same for other species. To many think that a two week vacation allows them to catch a years worth of seafood. They are like frik'n vacuum cleaners..

If this CA "no probably cause" were to go nation wide,, Bad Ju-Ju..
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Old 06-23-2011, 22:23   #10
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What Rights?

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Sounds pretty slim to me. IMHO it was a bad call by the court and could be another chipping away of our rights.
Hunting and fishing are privileges that can be taken away. There is no right there.

On the other hand, if you are referring to the right to be free from unreasonable searches and seizures, I can tell you there is a lot of gray area. As you can see, if you read the document that the court was weighing several needs.

I work in Colorado and can tell you that our laws are somewhat similar, but the intent of the 4th Amendment is adhered to very rigorously. I am not going to armchair quarterback what this warden did because I was not there with him and didn't see what he saw. Even the documentation given doesn't really paint the entire picture of what actually occurred. For many reasons cited in this document officers in my profession are given additional latitude due the nature of the environment in which we work. However, just because you might be able to do something does not necessarily mean that you ought to. It is all a balance and ties should go to your civil rights as a citizen of this country.

Poaching is no grand accomplishment. Wildlife crime is very easy to perpetrate and evidence is also easily destroyed. Also, I can tell you that wildlife laws are rarely seen as being as "important" as other laws. The dumb ones usually get caught relatively quickly. The smart ones just take a little more time. I have seen my share of grown men cry with snot half way down to their belt line. No class is immune (i.e. everyday criminals, really bad guys, regular guys, cops, soldiers (I was almost shot by one on 9/12/01), judges, clergy); we've caught them all. Having a few tricks up your sleeve that are santioned by the courts are necessary to be able to make a case on individuals who are having a major impact on your resources.

Whomever stated that this is a thankless job is correct. That's ok. We didn't get into it because of the fame or the money. We do it because we care about wildlife. Remember, cops sometimes die protecting other people. Some of us die protecting animals.

FWIW

RB
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Old 06-24-2011, 08:48   #11
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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 View Post
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.

Last edited by SLVGW360; 06-24-2011 at 09:15.
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Old 06-24-2011, 13:48   #12
mark46th
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I live, fish and hunt in California. IMHO I don't see anything wrong with this. The warden observed a suspicious acivity and followed up appropriately.
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Old 09-14-2011, 19:45   #13
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Game Wardens are given broad powers here in NC. They can pretty much search your land, car, house, boat, whatever they want if they feel a suspision. I meet the often on the water and have never had an issue. My encounters have been with professional officers just doing their job. My experiences have shown that if you're not doing anything illegal and you're respectful, you're back to hunting or fishing in no time. Now can they make your day miserable, you bet!
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Old 09-14-2011, 21:01   #14
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The Game warden in Hoke County NC was always threatening me. He was ex SF. He knew because I told him. That hunted on my own land when I wanted. He use to say he could enter my property whenever he wanted. He never did thou. My property my rules. Nothing angered me more. Then someone telling me what I could and couldn't do on my own land.
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Old 09-14-2011, 21:47   #15
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I don't know the laws in NC, but I doubt they're much different than they are where I am. The American ideal in regard to wildlife is just the opposite of what used to occur, and still might, in Europe. There the deer belonged to the King and game keepers were charged with protecting them for the King's use.

Here the wildlife belong to everyone and the States are the keepers of that wildlife in the public trust. Most of us are granted powers by state statute to enter upon any lands and waters, public or private, when we have reason to believe someone is exercising the benefits conferred by a license issued by the State. Yes, that is a broader power than traditional law enforcement. I always hesitate when I say "traditional" because where I grew up the only law enforcement you saw was the local game warden. My agency has been in existence enforcing wildlife law for 104 years.

However, most of us are trained to do things slightly differently than what many would term as "usual" for traditional LE. We tend to work huge areas by ourselves (up to and sometimes greater than 1000 sq. miles). Back up is hours away and everyone we contact has guns and knives. We are something like 9 times more likely to be assaulted than other officers. Most officers are known in their areas as good old boys. Most are college educated and well trained. Most grew up as county boys who like to hunt, fish, shoot guns and poach from time to time. I like to call it Retired Undefeated. Having had that background and then being converted can make one somewhat of a zealot, but most grow out of it and acquire a tempered approach.

Fortunately, the vast majority of the people we deal with are good, law abiding citizens. We have ruined the day of many of judge, police officer, minister, what-have-you. I have contacted several guys who claimed to be ex-SF. I friend of mine is a State Trooper and is ex-SF who loves to write our tickets. Even good people make mistakes.

Just a few thoughts.

RB
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