CDFW Officers Cite Two for Abalone Poaching in Marine Protected Area

[MaxBottomtime]

 

[OkByMe]

Witnesses - the most important aspect if the enforcement authorities did not see him doing what he was accused of doing. Only one in dive gear, spear gun and a lobster that did not crawl out of the water with a hole in it's shell... All of this in plain sight without having to question or search. I would say they have probable cause to question, search and if refusing to sign a summons to appear and defend himself, detain. If they can't prove their case, he gets his gear back.

 

[red_instead]

They CAN just stop anyone and conduct a search of any place they think F&W 'contraband' might be, IF they have reason to think the person has been involved in hunting or fishing. What that requires in real life, I can't say for sure, but on the face of it, it's not much of a hurdle.

You're right, it's not much of a hurdle. But it is an important one: it requires a reasonable suspicion that the person has been hunting or fishing.

Analysis in court goes something like this:
1) Nobody is allowed to take fish or game in CA without a license
1A) Having a license implies consent to an administrative search to ensure you're complying with the terms of your license, otherwise licensing laws would be toothless
2) Therefore, they're assuming that if you're taking game, you have a license (hence are following the law), and have given consent to an administrative search

As for the hunting/fishing part, they need:
1) something more than an "inchoate and unparticularized suspicion or 'hunch' ";it must be based on "specific and articulable facts", "taken together with rational inferences from those facts".
-- which is the standard for reasonable suspicion and a Terry stop.

It's also a tremendous break with the spirit of the 4A requirement for probable cause, as the attorneys in that link bemoan. The use of such 'general warrants' is in the public mind quite a bit these days, and is part of the seemingly consistent trend of 4A erosion. That distinction - particularity and specificity of probable cause, vs. 'shake 'em down just in case' - was what my troll was directed at.

I don't happen to think personally that it HAS to be a big risk to offer F&W LE that exception, because without some measure of it, there could be little effective law enforcement of F&W laws. For the most part, F&W crimes are procedural transgressions in a setting with no complainants, and virtually no witnesses or other inculpatory documentary trail. That's quite different from many or most other crimes - which of course could also more efficiently be prosecuted w/o pesky civil liberty protections. But that concession to F&W LE should be on a very short leash.

This isn't really a break to the 4A - it's a permissible exception. See Ohio v. Terry. Court notes there's an intrusion into privacy, but the intrusion is minimal. Plus, you have the presumption that if you're taking game, you're doing it legally, with a license, and thus have given express consent. Kind of how you give express consent to a sobriety test when you get a driver's license- there are consequences if you don't play along.

We should also talk about what a 4A remedy is: basically, the Fourth Amendment keeps you free of unreasonable searches. But it does it by disincentivizing law enforcement from making those searches. That is accomplished by evidence suppression.

So, if what is taken is the fruit of an illegal search, it isn't admitted into evidence at trial. This ties into the reasonable suspicion thing basically this way: if they don't have some articulable facts coupled with circumstances beyond a mere hunch that you were fishing/hunting, and they do a search when you've expressly denied them consent, in an ideal world anything illegal they turn up gets suppressed. Judges can be kind of fickle, but usually it works out, especially if it's clear it's just random harassment or an abuse of law enforcement authority.

The interesting legal question here is, what would the standards for a search be in a marine protected area where take is disallowed? If there's no long a presumption that you have a license to take game, there is no justification for a search on an administrative basis, and because taking game is criminally illegal, there's probably a different analysis to what standards are necessary for a search.

So the F&G exception is, arguably, already on a short leash. It's really tied very closely to observed articulable facts and circumstances that indicate a person is participating in a privileged activity, and isn't blanket applicable to everyone everywhere.

---------- Post added June 12th, 2013 at 10:25 PM ----------

What an ass. Poachers are damned low.

 

[spoolin01]

To be frank, I disagree on each of those points. We just see the principles and law quite differently.

That lobster poacher should have known that schtick only works in Congressional hearings...