When you don an orange hat or slip on a pair of waders, do you automatically assume you’re giving up some of your civil rights?
More importantly, should you have to surrender any of your rights just because you’re hunting or fishing?
According to the California Supreme Court, the answer is “Yes.”
A June 2011 ruling by California’s highest court—which was allowed to stand after the U.S. Supreme Court declined to review the case on March 5—held that a game warden can stop a vehicle driven by a hunter or angler and then question or search that hunter, even without a warrant or probable cause that a fish or game law has been broken.
All a warden needs to initiate such a stop is knowledge that the person or persons in the vehicle have been hunting or fishing. As long as the wardens’ demands are limited to items directly related to fishing and hunting, then the stop and any subsequent search is permissible, the court said.
In its decision, the court said the inconvenience of such stops, when compared to the state’s need to protect wildlife for future enjoyment, is minor. The court also said hunters and anglers give up some measure of their Fourth Amendment protections against unreasonable search and seizure because hunting and fishing regulations would be “impossible to adequately enforce if a game warden could stop…only those anglers and hunters who the warden reasonably suspected had violated the fish and game law.”
In short, the court is saying that hunters and anglers have a different set of rights than everyone else.
“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,” the court wrote.
“In light of the number and nature of the regulations that apply to fishing and hunting and the type of enforcement procedures that are necessary to enforce such regulations, anglers and hunters have a reduced reasonable expectation of privacy when engaged in such activity.” [Emphasis ours.]
The court’s ruling stems from a 2007 case in which a game warden stopped an angler three blocks from a San Diego public fishing pier and discovered the illegal take of a spiny lobster. The warden had been observing the pier through a telescope from a distance of 200 yards (so as not to be detected) when he saw Bouhn Maikhio pull something out of the water with a hand line and put it in a black bag.
Although the warden could not tell what Maikhio had caught and later admitted he did not have reason, at that point, to suspect a law had been broken, he pursued Maikhio after watching him leave the pier, get in his car, and exit the parking lot. As the warden put it, he wanted to “make sure that [Maikhio] was in compliance with the California fishing law and regulations.”
After pulling Maikhio over, the warden asked him if he had any fish or lobsters in his possession. Maikhio said he did not. Believing that to be a lie, the warden initiated a search of the vehicle and located the lobster in a black bag in the back passenger area of the car. Upon finding the lobster, he detained Maikhio and performed a more detailed search of the vehicle, finding nothing.
Maikhio was prosecuted for possessing an out-of-season lobster and refusing to allow his vehicle to be inspected. He moved to have the evidence suppressed because he claimed that it was obtained through a warrentless search and seizure. The trial court granted his motion, saying the state Fish and Game Code allowed the warden to walk up and look in Maikhio’s car, but a vehicle stop still requires a reasonable suspicion of illegal activity under the Fourth Amendment—the same standard that applies to all other traffic stops.
The appellate division of the state superior court reversed the trial court’s decision, but the Court of Appeal reversed the appellate division and ruled the warden’s stop to be unlawful. The seesaw debate over whether the stop was permissible ended with the California Supreme Court holding that a game warden can stop a vehicle without a warrant or suspicion of lawbreaking as long as he or she has knowledge that the person in question has been hunting or fishing.
While the facts of this particular case unfortunately involve illegal activity—and the actions of poachers and game thieves are repugnant—the reach of the California Supreme Court’s decision impacts all ethical, law-abiding hunters and anglers. The National Rifle Association joined in the petition to have the U.S. Supreme Court consider the Maikhio ruling for the express purpose of preventing this infringement of hunters’ rights from becoming a permanent part of California case law.
Keep in mind that we’re not talking about a warden checking a hunter’s license or bag limit in the field. The issue at hand is whether or not a game warden should have the power to initiate a traffic stop and then question or search a hunter or angler without probable cause that a crime has been committed.
No one questions that enforcing game laws can be a difficult and even dangerous job. And while allowing game wardens to pull hunters over at random, without evidence of wrongdoing, might make enforcement easier, treating innocent sportsmen as criminals—while also subverting their Fourth Amendment rights—is not the answer. No single element of any civil right should be infringed just because someone has a hunting or fishing license.
It is not unusual for game wardens, in California or otherwise, to park near a public hunting area and stop vehicles with gun racks or occupants wearing blaze orange. While wearing a blaze orange hat might indicate that you’re a hunter, it certainly is not an indicator that you’ve committed a crime.
It is exactly this type of heavy-handed behavior that is driving people away from hunting.
The courts have long held that other law enforcement personnel like highway patrolmen and sheriff’s deputies cannot pull someone over without probable cause of lawbreaking. Why should game wardens be held to a lower standard?
There is no doubt that state game and fish agencies have an important obligation to protect our wildlife resources, but as this country’s primary wildlife stewards, hunters should not be treated as criminals or have their civil rights violated in the process.
