It is an item of faith in some circles that game wardens have special privileges regarding search and seizure that other LEOs don’t have. I can’t see how this would be true. Is there anything to this?
Thanks,
Rob
It would depend on the state laws in your jurisdiction. I am not a hunter but I can see there being some sort of implied consent law. Want to hunt? Then you consent to being searched by the game warden while doing it. Hunting is not a guaranteed right. I would think that the scope of the search would be limited by law. Sort of like the implied consent laws regarding DWI and operating a motor vehicle. I’m sure these things vary greatly from state to state.
To what extent can consent be implied?
Rob
Everything that a game warden does is done on behalf of the government, and thus the Constitution applies to them the same way that it does to any other LEO (in my home state of Vermont, game wardens are state police officers with additional specialized training for fish/wildlife issues, however there is also some overlap with local animal control officers in municipal areas). It might be that hunting, fishing, etc., privileges are not “rights” that would trigger 4th Amendment issues, but this does not mean that game wardens actually have powers that transcend the Constitution.
There’s a doctrine somewhere (IANAL) that police have special powers of search for vehicles, because unlike a house or office, it can drive off with evidence if not searched in a short time. So all LEO have search powers slightly more permissive for cars.
Vehicle searches were quite severely restricted a couple years ago, though. I don’t remember the case, but it used to be than an officer could search the entire vehicle bumper-to-bumper incident to arrest. I think now the rule is that they can only search the proximity of the arrested person.
Someone who knows better can correct me.
I can only explain using what I know. Which is motor vehicle law. I believe it is the same in all 50 states although the wording is different. The act of driving itself implies consent to give samples of your breath (or blood in some states) for the purposes of testing for intoxicants. Invoking your rights will do no good. It would only bring an additional charge of refusing to submit a sample which is usually the same or greater penalty than the DWI.
I can see how the act of hunting could lead to implied consent with regards to the Warden having the power to check licenses, your catch, which weapons you are using, etc.
I used to be more up on the subject than I am now. Its hard enough keeping track of my own jurisdiction. New Jersey courts have done away with search incident to arrest almost completely. Our rules are much more restrictive than SCOTUS has ruled.
In Austin, Texas where I live, we have, right now, a no-refusal Breathalyzer/blood test for suspects detained for DUI because a warrant is issued in these cases. Here, anyway, without that you could refuse to blow (but you will be arrested and your driver’s license suspended until the matter is adjudicated).
Rob
One issue is that with a quick search during a Terry stop, the officer is ostensibly only searching for weapons, and so a normal cop has to think up some sort of vaguely-plausible reason why he might think someone would have a weapon if he wants to search their car or person. Game wardens are pretty much always dealing with potentially armed people, so that particular hurtle is very rarely an issue.
It might also be that there’s fine print on your hunting license or its supporting documentation. It would be rather trivially easy to just add a few sentences saying “Acceptance of this license grants an officer of the State of Vermont the right to search the bearer and/or his/her vehicle for animals or animals products blah blah blah when hunting blah.” Boom, now it’s overt consent.
It’s more than just a car. A sportsman is subject to both a bag limit and a possession limit. The bag limit is the amount of game that can be taken in one day, and the possession limit is what the hunter can be in possession of, including the freezer in his basement. That is typically the equivalent several times the daily bag limit. Historically, game wardens had a right to enter the home of a hunter or fisherman, and search for fish and game that had been bagged on previous days.
That was a long time ago, and I haven’t kept up with recent court rulings, but my point is that the warden’s search power is not limited to cars.
What is the definition of “hunter” for this purpose? How does a game warden determine whose home he can and cannot enter?
What is the definition of “hunting” for this purpose? How does a game warden determine who is hunting, and therefore from whom he can demand a license and/or special access for searches?
If I’m hiking through the woods during hunting season wearing blaze-orange (because I don’t want to get shot at!), does a game warden have the authority to stop me and subject me to various searches, e.g. for a license and/or weapon?
Good point, although I don’t have a hunting license handy right now to verify this (I usually only go deer hunting, so I buy a license every year in early November and toss it a few weeks later when the season ends). Another thing worth pointing out is that, at least in VT, most hunters do not own the land they hunt on, instead it is usually U.S. National forest, “unposted” (“posted” = displaying signs produced by the state and made available to landowners stating that hunting is prohibited w/o permission), posted but w/ the landowners permission (very common, most landowners just want to meet you and set forth a few ground rules, they aren’t necessarily anti hunting), or flat out trespassing, so it might be that in most instances there is no right to privacy for hunters because if they encounter LE it’s almost always on someone else’s land.
IC is only applicable if a person is under investigation for DUI, not blanket authority to take/demand one when a person is detained! Right?
State specific, but as stated, they are constrained by the 4th AM.
A PEACE OFFICER in Ohio, is a person of one of many agencies, including
a Wildife officer.
Now the power of ARREST/S&S is still spelled out in law. As an example, in Ohio, oddly, the Highway Patrol, while they have traffic jurisdiction staewide, thier “Criminal Law/Arrest” jurisdiction is limited to crimes on state property, etc., is is not as broad as others have.
As a defense? Yes. If an officer is determined to not have proper PC for the stop to begin with the rest should get thrown out. But it is not something I recommend drunkenly arguing at the time.
ETA: The way I wrote that isn’t quite right. First there is a determination of PC towards the stop. There is also a determination of PC as to the intoxication. Both will be broght up during a suppression hearing.
From Florida, of which I used to have some familiarity (these sections deal with Wildlife Officers specifically):
and