Busted by the DFG

[DivePartner1]

Thanks for the replies. Does anyone want to join me on the court date? It will be in Laguna Hills next month.

Some of the previous statements above make me a bit uneasy. Speaking to the searching of my boat. Does anyone know what would truly happen if I refuse to let the DFG search my boat/bc's/coolers? I have allways allowed them to do their job. We are going out tonight, maybe I will try it.

Kyle

Kyle,

As on land, my sense is that once you've consented you've waived your right to object. My experience is that powers to search are broader--law enforcement will board and inspect at will.

I don't know the parameters of their legal power but if you'd like I'll run the concept by an LA prosector to get her views. I do know from diving with her that she claims LA is ruthless in pursuing poachers in the protected zones near the Channel Islands (but I appreciate that's more serious that what you're accused of).

From your comments I think you've probably guessed that the courts have already thought of ways to deal with those who ignore citations. It's called the bench warrant. It allows you to be snatched off the street at the County's convenience, probably when it's least convenient to you--maybe they'll look for you, maybe they'll pick this up on some traffic stop at the worst possible time.

 

[FredT]

Kyle,

As on land, my sense is that once you've consented you've waived your right to object. My experience is that powers to search are broader--law enforcement will board and inspect at will.

This is a bit of a red herring. With minor variations state to state the ONLY LEO with more power than a state game warden is a Texas Ranger. The Warden can conduct searches for game anywhere it it likely to be found without a warrant, including in your freezer at home or in a vehicle with muddy tires. They also can arrest for anything ELSE they incidentally find as part of the game search. The TR's exceed this by being able to do anything ordered by the Governor of Texas anywhere in the US, or world, provided they get back into Texas before being challenged.

If CA is anything like the Gulf of Mexico states the ONLY judgment call that can go in your favor on an "illegal game possession" incident is the one where the warden decides to warn you without issuing a ticket if it's obvious the incident is accidental or unintended. whalerkyle missed this option, although the incident description indicates he probably would have recieved a warning instead of a ticket over in this neck of the woods. Almost all game laws are written in relation to "possession" of the "illegal" critter, with all on the boat liable to be issued tickets for the possession. Once the DA is involved you're pretty much hosed around here unless the judge knows the warden to be a VERY unreasonable prick. I expect with the financial "crisis" in CA your odds of "beating" this at this stage are somewhere between slim and none, with Slim on a flight to Singapore.

FT

 

[IndigoBlue]

This is a bit of a red herring. With minor variations state to state the ONLY LEO with more power than a state game warden is a Texas Ranger. The Warden can conduct searches for game anywhere it it likely to be found without a warrant, including in your freezer at home or in a vehicle with muddy tires. They also can arrest for anything ELSE they incidentally find as part of the game search. The TR's exceed this by being able to do anything ordered by the Governor of Texas anywhere in the US, or world, provided they get back into Texas before being challenged.

If CA is anything like the Gulf of Mexico states the ONLY judgment call that can go in your favor on an "illegal game possession" incident is the one where the warden decides to warn you without issuing a ticket if it's obvious the incident is accidental or unintended. whalerkyle missed this option, although the incident description indicates he probably would have recieved a warning instead of a ticket over in this neck of the woods. Almost all game laws are written in relation to "possession" of the "illegal" critter, with all on the boat liable to be issued tickets for the possession. Once the DA is involved you're pretty much hosed around here unless the judge knows the warden to be a VERY unreasonable prick. I expect with the financial "crisis" in CA your odds of "beating" this at this stage are somewhere between slim and none, with Slim on a flight to Singapore.

FT

Actually, you forgot the IRS. They are in fact the most powerful, with the game wardens and the state police in 2nd place.

 

[DivePartner1]

This is a bit of a red herring. . . . . The Warden can conduct searches for game anywhere it it likely to be found without a warrant, including in your freezer at home or in a vehicle with muddy tires. They also can arrest for anything ELSE they incidentally find as part of the game search.

Well, of course the reality is that law enforcement 'can' always do want they feel like and in some circumstances that's what occurs. Lyle's issue might be whether the local courts uphold such a search or not. If Texas courts view muddy tires as probable cause to suspect poaching, they'd probably think the same of scuba gear. Probable cause trumps lack of consent, so a Texan would be SOL. I'm not sure a California would take the same approach, particularly if the stakes justified hiring a lawyer to challenge it.

 

[scubasean]

The Warden can conduct searches for game anywhere it it likely to be found without a warrant, including in your freezer at home or in a vehicle with muddy tires.

huh? You are telling us that a game warden can come into my house and search my freezer without a warrant?

As someone said, a person with a gun can go most anywhere they please, but I can tell you that the search will not be consensual, and I can't think of any reason a court would uphold the search as valid, absent probable cause.

 

[Marebythesea]

I am not writing this to offend anyone, but I feel like I'm in the twilight zone reading some of these posts. Perhaps it’s because I'm not in the legal profession. Regardless, the California Fish and Game regulations pertaining to spinney lobster are clear:

· All lobster must be measured in the water and released unharmed if undersized. You can bring them to the surface to measure, but you cannot bring it aboard the craft.
· All recreationally taken lobster must remain in whole condition while at sea, they cannot be tailed.
· It is an offense to spear California Spiny Lobster and unlike Florida, you cannot use a snare. You also cannot use a trap/lobster pot unless you hold a commercial license.
· I’m not sure if it is an offense in California, but it is certainly frowned upon to take an egg carrying female.
· All lobsters must have a carapace larger than three and one-quarter inches. The length is measured in a straight line from the rear edge of the eye socket to the rear edge of the body shell midline of the back.
· You must have a fixed measure gauge while in the water.
· There is a bag limit of 7 Spiny lobster per person per day (regardless of how taken).

California is diligent in enforcing these regulations and for a good reason. It is my understanding that it takes 5 to 6 years for a lobster to reach legal size. During that time she produces hundreds of thousands of eggs. Granted, there is a high mortality rate, but from what I have read a female will produce close to 3,000 legal sized lobsters during that time.

The person who was doing the job he is paid to do, in ticketing/citing Kyle, could have been a real jerk, but that does not negate the fact that an undersized lobster was taken. That lobster should never have left the water, let alone brought on board without measuring it. Ultimately, it was Kyle's boat and therefore it was his responsibility to make sure that everyone on his craft was in compliance with the regulations. Do you know how many times Fish and Game hear “I didn’t know it was there officer!” “It was a mistake officer!” I don’t know how it got there officer!” That’s not to say he (Kyle) isn’t telling the truth, but it doesn’t matter, the lobster was undersized.

Simply put, IMHO you play you pay -- Get the money from the person who brought the lobster on board and pay the fine…

 

[FredT]

huh? You are telling us that a game warden can come into my house and search my freezer without a warrant?

There is little chance of a "probable cause" issue either.

Do you own ANY piece of fishing or hunting gear, including hands?

Bingo for probable cause if you've ticked off a warden.

Admittedly MOST wardens I've met in the 6 states I've hunted or fished as a resident are good and reasonable folks. All it takes is "interacting" with one 250 pound walking/talking rectum to pretty much screw up their reputation with a sportsman though.

I've met some sterling game wardens, but be aware they they are really close to the "big three" for causing you pain without even having to try if you piss one off for some reason. The big three are your Dentist, Accountant, and Proctologist.

IndigoBlue, I didn't forget them. I just don't consider honoring them with the title of LEO. Even the Mafia refuses to use some of the tactics the IRS commonly uses in their "business" of extortion in the name of "colecting taxes". The real culprits of the tax system are the congress critters and special "tax courts" controlled by the IRS, but IRS middle and upper mangement carries a heavy load of responsibility for unconstitutional actions too.

FT

 

[ChrisM]

I am not writing this to offend anyone, but I feel like I'm in the twilight zone reading some of these posts. Perhaps it’s because I'm not in the legal profession. Regardless, the California Fish and Game regulations pertaining to spinney lobster are clear:

Disclaimer, only referring to you kyle cuz it's your post, not to pile on......

Christ, I agree.... and I am in the legal profession. THis isn't a case where Kyle had a legla lobster and somehow is getting busted for it. This is a case where the lobster is 100% illegal in kyle's possession. So, the advice is "scr*** the Calif. DFG" and their rules, I can do what "I WANT" because I won't take responsibility for my mistake (again kyle, directed at others, not you, and don't really care if I offend anyone). C'mon people, measuring and counting lobsters ain't rocket science.

People are always crying about our litigious society, that no one takes responsibility for our own actions, blah blah blah..... Perhaps some people should look in their own backyards...
Rant off
Chris

 

[scubasean]

There is little chance of a "probable cause" issue either.

Do you own ANY piece of fishing or hunting gear, including hands?

Bingo for probable cause if you've ticked off a warden.

Again, the guy with the gun may get in, but I'll bet that it won't be enforced by the court that hears your case.

Ticking off the warden doesn't generate probable cause. And, I was talking about my freezer...I still don't see where you create the probable cause from my possessing hands, and the using it to get into my house, and all the way to my freezer.

Its cool, and I really don't need answers...This is food for thought.

 

[ChrisM]

DFG requires a search warrant or consent (or contraband in plain view if the agency is there for some other reason) to enter your home, just like any other government agency. The SW requires a showing of probable cause.

Probable cause does not give rise to a search without a warrant or consent. Searc for some guy named sosnowski or something like that - guy had hundreds of tailed lobsters in his possession, they still needed a warrant for the house

Doesn't mean there have never been searches without them, question is whether it will hold up in court. Absent any of the above, I'll bet it gets excluded every time.

Now, where are those black helicopters?