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#2542670 - 09/11/13 02:01 AM Re: Warden search authority? [Re: Raspack]
Rocky1 Offline
PM Junkie

Registered: 11/24/10
Posts: 11518
Loc: ND/FL - USA
Originally Posted By: fw707
Raspack made no mention of refusing the officer permission to check the guns.


One can logically assume from the fact that he simply opened the truck up and inspected them, that no refusal was implied.

Originally Posted By: fw707
The officer simply reached into the truck and only removed guns he had been given consent to inspect. If he made any further "search" of the vehicle it wasn't mentioned in the original post, and I think Raspack would certainly have mentioned it.

I'm not certain that the term "search" even applies to this situation. If it does, it it was definitely a consent search going by the info in the original post.



A very good point made there as well Jeff. If in fact consent was granted on 2 of the 3 items in his request, no explicit refusal to inspect the guns was implied, and if the guns were in plain sight through the truck window, then he had every right to reach in, remove them, and inspect them. If he looked no further, there truly wasn't a "search" of the vehicle, by any means or definition. All he did was inspect the guns he had been granted premission to check.

Again, he may not have approached this situation in the most courteous and professional manner. That point, I will not dispute! He could have/should have asked permission to remove the guns from the vehicle.

And, while you could write them a letter down at headquarters, that probably wouldn't be a good idea. Then they have your name and address to mail you the ticket for the shotgun that holds too many shells, if he didn't write it down, or call anything in.

Were I going to complain, I'd find one of his bosses at a county fair, public meeting, country store, or something, strike up a conversation and casually mention that it kinda rubbed you the wrong way, that you would have appreciated being asked if he could remove the guns. That your dog could have been laying in the floorboard unbeknownst to the officer and it could have created seriously ugly problems for all. That you think it might be worth mentioning to his officers, as a safety precaution more than anything, and a matter of common courtesy, that they might ask in the future.

His boss is going to be more into handling PR, and think the safety issue through. A casual mention of it, OFF THE RECORD, is much easier to swallow than a letter, which is formal. Furthermore, as we are all aware hanging out on these boards, the written word can often be taken out of context, and things can be read into what you wrote, that you truly didn't mean to say. And, any calls to that office might be monitored for customer assurance, covering their @ss, or by the NSA, FBI, or other government agencies. Off the record, 1 on 1, and politely is usually best.
_________________________
Think about how stupid the average person is, then stop and realize... Half of them are stupider than that! -- George Carlin

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#2542780 - 09/11/13 10:03 AM Re: Warden search authority? [Re: Rocky1]
Yellowhammer Offline
Retired Moderator

Registered: 02/07/02
Posts: 16605
Loc: Huntington, Texas
In Texas it states:

Inspection Authority: A game warden who observes a person engaged in an activity governed by the Texas Parks and Wildlife Code or resonably believes the person is or has been engaged in such an activity may insprect:

(1) any license, permit, tag, or other document issued by the department and required by the Texas Parks and Wildlife Code of a person hunting or catching wildlife resources;

(2) any device that may be used to hunt or catch a wildlife resource;

(3) Any wildlife resource in the persons possession; and
(4)the contents of any container or receptacle that is commonly used to store or conceal a wildlife resource.


I think in most cases, a boat or vehicle would be considered a "container or receptacle that is commonly used to store or conceal a wildlife resource"
_________________________
"The recreational value of a head of game is inverse to the artificiality of its origin"

"No prize is greater than the effort taken to acheive it"

- Aldo Leopold, The Father of Wildlife Management



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#2543120 - 09/11/13 11:20 PM Re: Warden search authority? [Re: Fursniper]
erict Offline
Seasoned Member

Registered: 02/23/06
Posts: 420
Loc: near Albany, NY
Originally Posted By: Fursniper
The officers had justification to inspect the firearms to make sure the birds they were shown were taken by lawful methods. In this case, the firearms in the vehicle could be searched for without a warrant. A motor vehicle is also mobile which creates an exigent circumstance to search without a warrant.

I believe the search was lawful, but the officers did a poor job in how they handled their hunter contact in the field.

In AZ for example, there is actually a state statute that enables wildlife officers to search without a warrant. This statute only applies to wildlife officers, not for all AZ state peace officers.

ARS 17-211(E3) states in part,
E. Game rangers and wildlife managers may, in addition to other duties:

1. Execute all warrants issued for a violation of this title.

2. Execute subpoenas issued in any matter arising under this title.

3. Search without warrant any aircraft, boat, vehicle, box, game bag or other package where there is sufficient cause to believe that wildlife or parts of wildlife are possessed in violation of law.



Assuming there was no consent/implied consent:

I respectfully disagree with several of your assertions. The officer cannot justify checking firearms NOT VISIBLE FROM THE OUTSIDE, IN A GUN SOCK, IN A CLOSED VEHICLE to determine if the birds were taken by lawful methods. He first has to have "sufficient cause" that the birds were NOT lawfully possessed (see your text in bold above). Maybe he hears 4 shots, rounds the bend and sees one hunter - now there is sufficent cause to believe violations may have been committed. THEN he is one step closer to getting in a vehicle to inspect a firearm. Based on the description, it doesn't sound like he had any sufficient cause at all.

Let's suppose the warden wrote the ticket - unless he observed the guns being used, he merely has stowed, unloaded, under-plugged gun in a vehicle and likely no violation of anything. If the hunters told him to go pound salt he would be hard pressed to prove that the specific gun was used during the hunt, who used it, and an even harder time proving that it was used to illegally take birds.

Outside of the vehicle it's another story. Hunting is recognized as a "pervasively regulated activity" that carries with it certain changes to the search rules. Hunters AFIELD whose guns are checked for compliance will have little luck arguing that the gun check was an illegal search.

There appear to be no exigent circumstances in this case. If the officer had PROBABLE CAUSE, meaning he some evidence to suggest a violation, then he would be within his authority to secure the vehicle until a search warrant was obtained. He could possibly claim exigency if he was out of cell or radio contact and leaving the scene could lead to alteration of evidence - but he still needs PROBABLE CAUSE to get in the vehicle.

Consent is always best even though nonconsenual searches probably happen thousands of times a year without being questioned. I suspect this is mainly because most people have nothing to hide. Crafty wardens have ways to get consent without having to violate rights, build a case if they can't get consent, or walk away if they don't have enough for a good case.

I will agree that from the sounds of it the officer could have handled the situation much better.

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#2543127 - 09/11/13 11:38 PM Re: Warden search authority? [Re: Yellowhammer]
erict Offline
Seasoned Member

Registered: 02/23/06
Posts: 420
Loc: near Albany, NY
Originally Posted By: Yellowhammer
In Texas it states:

Inspection Authority: A game warden who observes a person engaged in an activity governed by the Texas Parks and Wildlife Code or resonably believes the person is or has been engaged in such an activity may insprect:

(1) any license, permit, tag, or other document issued by the department and required by the Texas Parks and Wildlife Code of a person hunting or catching wildlife resources;

(2) any device that may be used to hunt or tacth a wildlife resource;

(3) Any wildlife resource in hte persons possession; and

(4)the contents of any container or receptacle that is commonly used to store or conceal a wildlife resource.


I think in most cases, a boat or vehicle would be considered a "container or receptacle that is commonly used to store or conceal a wildlife resource"


It says "inspect", not "search without warrant". I do not believe a vehicle is considered a "container or receptacle" in this case. Coolers and fish creels are more like it. Quoted below in the codes it refers to vehicle searches, but again the officer must have "a reasonable, articulable suspicion" - and it's clear that he can't search for firearms using this section.

"Sec. 12.104. RIGHT TO SEARCH AND INSPECT. (a) A game warden or other peace officer commissioned by the department may search a game bag, vehicle, vessel, or other receptacle if the game warden or peace officer has a reasonable, articulable suspicion that the game bag, vehicle, vessel, or receptacle contains a wildlife resource that has been unlawfully killed or taken."

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#2543290 - 09/12/13 02:12 PM Re: Warden search authority? [Re: Raspack]
Cookie125 Offline
Seasoned Member

Registered: 04/30/13
Posts: 130
Loc: KS
In high school we had a question answer day with an officer and searching of a vehicle that was asked and he told us that they have to ask for consent but if their is reason to suspect illegal activity that they can search your car after being refused due to it being a mobile crime scene.

sounds like he asked to see everything and you showed him the first 2 of 3 giving him reason to search for the guns even if you had refused them, or at least in Kansas I believe that's how it would have worked. Yeah he should have asked for the guns but I think he would have been safe.

Sucks when an officer comes across as rude, you could write a complaint but not sure what good it will do but maybe his superior would bring up the lack of people skills, but who really knows.

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#2543307 - 09/12/13 03:21 PM Re: Warden search authority? [Re: Cookie125]
Yellowhammer Offline
Retired Moderator

Registered: 02/07/02
Posts: 16605
Loc: Huntington, Texas
Well, most people if they are over their limit or have killed something not in season or illegal, they are going to hide it in their vehicle or boat.

In a boat there is not much difference in a live well and a rod locker. Both can hide fish, ducks or whatever. There has been a lot of deer and other game packed into the trunk of a car, tool box of a truck or behind the seat of a truck. I would go so far as to say these are "commonly used to store or conceal a wildlife resource"

Probably cause it not that hard to arrive at in most cases.
_________________________
"The recreational value of a head of game is inverse to the artificiality of its origin"

"No prize is greater than the effort taken to acheive it"

- Aldo Leopold, The Father of Wildlife Management



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#2543873 - 09/13/13 11:08 PM Re: Warden search authority? [Re: Raspack]
TripleDeuce660 Offline
Die Hard Member III

Registered: 11/10/08
Posts: 2918
Loc: Las Vegas Nevada
Doesn't seem like a big deal. Cut a new plug 1/2" longer and make certain you can't force the third shell in there.

Now if he tore your truck apart looking for cystal meth without a search warrant you might have something to cry about.

Every time you get stopped with a shotgun and you are huntings its capacity is going to be checked. I think he was nice not to give you a ticket.

Those wardens on wild justice annoy me because they always say there is no night hunting in CA. That is not true. You can hunt at night in almost the entire state. You can't hunt GAME at night or in any area that a big game season is open. You can hunt predators, coons, and so on. This leads people to call the police when they see lights from the highway at night.
_________________________
People who hug trees shouldn't live in wooden houses!


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#2567710 - 11/06/13 06:27 PM Re: Warden search authority? [Re: Raspack]
bolski Offline
Seasoned Member

Registered: 06/29/12
Posts: 257
Loc: Glen Rock PA
Prove to him that it was the gun you shot the doves with. Its not illegal to have a shotgun without a plug is it? I would have had disagreed with him on checking it. I could see him checking it in the field. What if your gun had broke and you had to take the plug out and spring? For example it got dirty and needed cleaning and you were taking it home. He s got no grounds to site you thats why he didn't.

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#2567730 - 11/06/13 07:26 PM Re: Warden search authority? [Re: bigsky_songdogs]
bignasty Offline
Seasoned Member

Registered: 08/17/12
Posts: 493
Loc: Tucson Arizona
Originally Posted By: bigsky_songdogs
Originally Posted By: Radio
Originally Posted By: fw707
Originally Posted By: Raspack
My question is, does he have the authority to open a closed vehicle and start pulling weapons out, that were NOT visible from the outside, and inspecting them?


In my opinion, the answer is yes.
And here is the reason he did:

Originally Posted By: Raspack
As the warden drove up and got out of his vehicle he said he would like to check licenses, any game we had taken and wanted to check guns. We both showed the requested paperwork and pulled the few dove from the ice chest. He then proceeded to open the back door of the truck and start pulling guns from the vehicle.


Your paperwork and doves were evidence you and your friend were hunting, so he had a legal right to check the guns used to take the doves.

In my opinion, he should have shown a little common courtesy and requested your consent first.


Agree with the above. Also the weapons were in plain sight if looking in the vehicle from outside, so it was not an illegal search by any stretch of the imagination. Pretty rude of him, but he was within his powers. You sure he wasn't one of the "Full of myself" agents on the TV show? whistle


This is a state by state issue. That crap might fly in the communist republic of CA but not in MT. Checking licenses , animals, etc is fine but here atleast a Warden has no authority to check a vehicle without permission, a search warrant, or exigent circumstances that would have to be articulated well to constitute a lawful search.



look up terry v. ohio

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#2568496 - 11/08/13 12:34 AM Re: Warden search authority? [Re: Raspack]
steve154 Offline
Die Hard Member

Registered: 11/28/08
Posts: 601
Loc: Western NY
There are several exceptions to the general requirement for a search warrant, one being the vehicle exception, which is also known as the Carroll doctrine. Carroll was a Supreme Court case from the 20's. In a nut shell Carroll states that a vehicle can be searched without a warrant when probable cause to believe that evidence of a crime exists with in the vehicle. The scope of the search is the same as what a judge would authorize if a warrant were issued. It includes all containers, locked, or not, that could contain the object of the search. It includes the trunk and locked glove box.

Lacking probable cause to believe that evidence of a crime is contained in the vehicle, any search is unlawful. Consent is never implied for searches. This is not a state by state issue. The states can restrict searches further, but they can never go the other way.

Game wardens have no more authority than any other law enforcement officer. The constitution is not suspended for them. Because they act like they can search whatever they want does not make it so.

The opening of the car and inspecting the guns was a blatantly bad search. What crime was suspected? The answer is none. Licenses were produced and there was no problem with the birds possessed. Can I see your guns? No? Have a nice day.

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#2568762 - 11/08/13 06:27 PM Re: Warden search authority? [Re: Raspack]
6724 Offline
Die Hard Member III

Registered: 01/19/11
Posts: 3072
Loc: colorado
i agree with the previous post.

all too often it seems that law enforcement tries to bully people into believing they have a right to search. i personally am very tired of constitutional rights being abuse in the name of "public safety".

i got stopped at a game check the other day, first time ever. i had my rifle (ar15 with a 20 round mag) in the passenger seat with the ejection port down toward the seat. i was asked for my hunting license, i was asked if they could look in the back of the car. i laughed at the request as they were peeking in the windows anyway. i said ok, but didnt unlock the doors. the fiddled around trying to open the door but did not say anything. they entered my name in a little book and gave my license back. they never asked to check my gun, never asked for id to prove i was actually the same person as the license said. it bothers me that my name is now listed in someones little book.

these roadblocks to find violators really dont sit well with me. where is the probably cause to stop EVERY car on the highway? i have heard that the roadblocks have been declared constitutional, but i do not agree.

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#2573988 - 11/19/13 04:11 PM Re: Warden search authority? [Re: Raspack]
yotyfox Offline
Seasoned Member

Registered: 11/12/13
Posts: 127
Loc: Utah
To answer your question, no he did not have a right to open your door and check your weapons. You have a reasonable expectation of privacy which includes your vehicle. He probably informed you "I could cite if I wanted" to make you feel like he was doing you a favor, when in fact he knew or should have known that what he done was not legal. If he was concerned about your weapons, he could of kindly asked to look at them. If you told him no and he was still concerned, he should have made an attempt to get a search warrant. It also does not appear from your story that there was any exigent circumstance which would have allowed him to enter the vehicle without a warrant.

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#2584062 - 12/07/13 10:23 AM Re: Warden search authority? [Re: Raspack]
liliysdad Offline
Die Hard Member II

Registered: 12/29/06
Posts: 1204
Loc: Oklahoma
Quote:
Game wardens have no more authority than any other law enforcement officer. The constitution is not suspended for them. Because they act like they can search whatever they want does not make it so.



As a peace officer, this is fact. A cop is a cop is a cop. Search and Seizure laws and case law extend to every peace officer in the same manner, notwithstanding local and state laws differing. Even at such, State and Local law cannot be less restrictive than Constitutional standards, i.e, State law cannot strip ones rights as assured by the 4th Ammendment.

One has the Constitutionally assured right to be secure in their person, property, and papers, and unless there is an exigency as outlined in various Case Law, it makes no difference if they are a local cop, Trooper, Deputy, Game Warden, or FBI Agent. We are all bound by the same laws, in the same manner.

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#2638187 - 02/15/14 08:08 PM Re: Warden search authority? [Re: fw707]
oregonhunt Offline
New Member

Registered: 02/06/14
Posts: 10
Loc: Oregon
In my home State of Oregon the officer must request permission to enter or search your vehicle unless he has probable cause to think that you are breaking the law. That is to prevent this sort of thing. You may want to check your regs and rules about this. You can turn in an officer for going over the line. I have done this once and was told it was the right thing to do by fish and game . Likewise you can also put in a positive report when those happen too. Which I have also done. I have found that now days with email and the internet there are ways to bring pressure to bear on wardens and police officers. Asking for badge numbers after everything has been settled and the officer is about to leave can really be a reality check for these guys.

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#2638484 - 02/16/14 11:16 AM Re: Warden search authority? [Re: liliysdad]
jumprightinit Offline
PM senior

Registered: 12/29/07
Posts: 7031
Loc: Ione, Washistan
Originally Posted By: liliysdad
Quote:
Game wardens have no more authority than any other law enforcement officer. The constitution is not suspended for them. Because they act like they can search whatever they want does not make it so.



As a peace officer, this is fact. A cop is a cop is a cop. Search and Seizure laws and case law extend to every peace officer in the same manner, notwithstanding local and state laws differing. Even at such, State and Local law cannot be less restrictive than Constitutional standards, i.e, State law cannot strip ones rights as assured by the 4th Ammendment.

One has the Constitutionally assured right to be secure in their person, property, and papers, and unless there is an exigency as outlined in various Case Law, it makes no difference if they are a local cop, Trooper, Deputy, Game Warden, or FBI Agent. We are all bound by the same laws, in the same manner.


In most cases I agree with that, but for instance a Customs Officer can search any vehicle coming into the State from offshore, that being a boat coming into port from 3 miles offshore. I would expect the same for aircraft. Also a vehicle can be searched incident to an arrest here in WA. That's up to a point for officer safety. That wouldn't include the trunk of a car without a search warrant.
_________________________
A fear of weapons is a sign of retarded sexual and emotional maturity.


LIBERALS.
Be careful. Sometimes they look like regular people.



No matter how you look at it at the end of the day BO still stinks.


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