CDFW Officers Cite Two for Abalone Poaching in Marine Protected Area

[dytis-sm]

Coming from Greece where sea life has been decimated by commercial fishermen as well as amateur hunters, I would say that MPAs and F&G regulations are absolutely necessary. I am a hunter myself as I grew up next to the water and picked up anything that moved regardless of shape and size. If it was considered non-edible or too small when I took it home to my parents, then it was thrown away in the garbage. That was the hunting culture I grew up, non-existent and totally irrational. Fast forward 30-40 years since then and there is nothing to go after in the Greek waters small or large. I do not know if the new generations are respecting laws and regulations passed since I was a kid, but there is not much to hunt anyway...

Going back to the local laws and MPAs, it is important that there are rules and enforcement in hunting. Otherwise the SoCal waters will become like Greece. I also heard stories from people picking up numbers of Abalone at PV for their own consumption, not commercial fishermen. But there are none even to show to someone, nowadays... My favorite game lobsters they also seem to become less (at least legal size) when beach diving and I can see where the "over-reaching" can lead. Being a hunter I can feel for the people that dislike regulations, but being also Greek and seen the effects of non-regulation, I would agree with MPAs, F&G regulations, and confiscations that go with the poaching tickets.


Just last summer I was in Catalina watching some kids fish of the Avalon pier. They reminded me of my childhood when we used to fish off some pier in Greece. What did catch my attention however was that every time they caught something, they rushed to a corner that had a measuring scale for fish catch. What impressed me most was not the "regulations" and "scale" but the hunting culture that those kids have grown in to respect the rules of the "game"... Maybe if I have grown into that culture back when I was their age, Greece may still had some fish to show to my children!

 

[red_instead]

The fact that some feel this is even arguable is rather appalling to me. These "divers" violated so many rules that I still think their vehicles should be confiscated as well.

Their gear was seized as potential evidence pending a trial. It would be pretty hard to argue that the vehicles were necessary evidence for trying the offense given the circumstances. That might have changed if the vehicles were searched and prohibited game/etc was found inside.

Regardless, if they win at trial, they get their stuff back. Law enforcement can't just take stuff without a reason, and they can't permanently deprive you of property without sufficient process.

I don't disagree, just pointing out they don't need probable cause or reasonable suspicion, anywhere. Bags are only catch bags if you've caught something - they have other uses as well. I can't speak to what constitutes PC, I suspect the bar is quite low, and variable based on your wealth.

Sure, catch bags can be used for other things. But the LE saw them go into the water, presumably with empty bags, and probably noticed they had something in them when they came back out. Wardens do just sit and watch people, waiting for them to screw up.

To enforce fish and game misdemeanors, they almost certainly need at least reasonable suspicion to detain them. Plus then they can do essentially a Terry stop on them.

 

[tracydr]

Although I am on your side on this one, 20% would be good if put in the right places. The ones who hunted species to near extinction did it legally under the CA fish and game regs. At that point who is at fault?

The poachers are a different group of people who pay no attention to the law and probably did not when there was a legal harvest. Lets keep those a**wipes separate from law abiding ab divers and speros.

Hope you don't mind some NorCal input.


Thanks
Bob
-------------------------------------
There is no problem that can't be solved with a liberal application of sex, tequila, money, duct tape, or high explosives, not necessarily in that order.

I agree with you, the MPAs in San Diego don't offer much in the way of shore accessibility. It may look like there's a lot of shore access on the map but these areas are not divable from shore.
We ended up taking a boat for lobster fishing this past fall, since there just weren't any spots that I felt comfortable entering from shore. Although, I'm sure there are good spots, we couldn't find them, being from out of town.
I wish they had left one or two areas that are easily dived without a boat.
However, I'm glad that the MPAs are enforced. Otherwise, they wouldn't do any good. Someday they might be able to reopen the shores to hunting, if populations recover.

 

[red_instead]

However, I'm glad that the MPAs are enforced. Otherwise, they wouldn't do any good. Someday they might be able to reopen the shores to hunting, if populations recover.

Kinda wonder what would happen with a rotating MPA system. Like, every 5 years they walked them up the coast, with exceptions for some critical or endangered habitat.

 

[spoolin01]

Regardless, if they win at trial, they get their stuff back. Law enforcement can't just take stuff without a reason, and they can't permanently deprive you of property without sufficient process.

Some comfort, I'd say. Most people wouldn't think that flipping the burden around to having to win in court as a prerequisite for getting your stuff back, is sufficient process. But that's another matter...

To enforce fish and game misdemeanors, they almost certainly need at least reasonable suspicion to detain them. Plus then they can do essentially a Terry stop on them.

You're missing the key point about standard 4th amendment protections in LE encounters: F&W officers are not like other LE - THEY DO NOT REQUIRE RS to initiate a stop and search, only evidence of fishing or hunting activity. The predicates of a Terry stop are not needed. Here's a defense attorney's summation of the law:
A game warden only needs a reasonable belief that a person has recently been fishing or hunting to conduct a search. | Dinan Law
There's a 2001 case cite in that link, but I seem to recall another prominent case in the last year or so, affirming the troubling "papers please" power the courts and laws have bestowed on F&W officers.

I didn't raise this tangential point to criticize the handling of this surveillance and arrest, which seemed pretty mundane in all respects.

 

[fisheater]

Also to correct the "record," the penalties for abalone poaching include fines, imprisonment and/or loss of the dive gear used in the poaching. They will only get their dive back if the judge finds them non-guilty or decides to be lenient.

 

[red_instead]

F&W officers are not like other LE - THEY DO NOT REQUIRE RS to initiate a stop and search, only evidence of fishing or hunting activity. The predicates of a Terry stop are not needed. Here's a defense attorney's summation of the law:
A game warden only needs a reasonable belief that a person has recently been fishing or hunting to conduct a search. | Dinan LawThere's a 2001 case cite in that link, but I seem to recall another prominent case in the last year or so, affirming the troubling "papers please" power the courts and laws have bestowed on F&W officers.

I didn't raise this tangential point to criticize the handling of this surveillance and arrest, which seemed pretty mundane in all respects.

Wasn't aware that F&W searches were considered administrative, but I suppose it makes sense. Just looked up the case, and you're right, F&W code only requires that there be evidence that a person has been fishing or hunting to authorize the administrative search, which puts it outside the 4A.

From a practical perspective, though, the requirement that the F&G officer believe that hunting or fishing has occurred is basically reasonable suspicion - they can't stop just anyone and search them, they'd need articulable facts indicating that the person was taking game. Specifically, that 2001 case, like here, had a game officer observing the suspect fish from a pier, which predicated his search. In fact, the court's analysis of the issue is basically a reasonable suspicion analysis: "

Balancing the importance and strength of the state's interest and need for the suspicionless stop and demand procedure against the limited impingement upon privacy resulting from that procedure, the Fourth Amend., does not preclude a state from authorizing a game warden to briefly stop a person the warden encounters on a pier, in a boat, or in the field, who the warden reasonably believes has recently been fishing or hunting, to demand that the person display all fish or game that he or she has caught or taken, even in the absence of reasonable suspicion that the person has violated a fish and game statute or regulation... Even if the stop of a car on a public street or highway involves a greater intrusion on privacy than the stop of an individual when the individual is on foot, when the vehicle stop is made by a game warden reasonably close in time and location to an individual's fishing or hunting activity, the impingement upon the individual's reasonable expectation of privacy is quite modest."
​

If a F&G officer stopped just a random person without the predicate circumstances indicating that person was taking game, or if the search occurred too far removed from where the game was taken, you'd still run into 4th Amendment issues and would probably have a good argument for suppression.

I'd have to look into it more to be sure, but I think Terry patdowns are still OK and justified by the interest in protecting LEO safety, even when the LEO is performing an administrative search like in this case, especially when the predicate for that search is essentially akin to reasonable suspicion, given that the 4A in Terry v. Ohio was read to protect only against unreasonable searches and searches to protect officer safety were considered presumptively reasonable.

Anyway, play nice with F&W everyone.

 

[spoolin01]

If only all liberty and privacy were subordinated to LE expediency, think how little crime there would be.

 

[red_instead]

If only all liberty and privacy were subordinated to LE expediency, think how little crime there would be.

Only okay troll attempt, 8/10 for execution, 2/10 for effort

 

[spoolin01]

Don't know why you'd think that a troll, it was in keeping with our discussion. First you don't read the posts, repeating your misunderstanding regarding RS requirements in CA for F&W LE (that made the 2/10 effort jab more than a little insulting), then you dismiss the critical 4A requirement that RS is predicated on evidence of criminal activity, substituting your personal insight that simply the *possibility* of criminal activity is, 'from a practical standpoint', equivalent in the important role of RS gating of LE interaction with the citizenry. That utter disregard (ignorance?) - from a principled standpoint - for the 4A prompted my terse sarcasm.