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#2638627 - 02/16/14 03:33 PM Re: Warden search authority? [Re: Raspack]
OldTurtle Offline
Moderator

Registered: 12/20/05
Posts: 19624
Loc: East Central FL
Most of what I've read here about all officers being bound by the Constitution is correct, however, when it comes to game laws, since the evidence of illegal activity is so easy to quickly dispose or disperse, there have been some states that statutorily give more latitude after probability of cause is established...

The ability of the Game Warden is not relieved of the responsibility, any more than any other officer, to be able to articulate that probably cause to the court, if challenged in that arena..They, in some cases, are just not required to obtain a warrant in all cases...A plain view or consent search still holds true in almost all cases, but non curtilage areas can be open season..
_________________________
Nature shares her secrets not to those that hurry by, but to those that walk with a happy heart and a seeing eye...


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#2638811 - 02/16/14 08:13 PM Re: Warden search authority? [Re: Raspack]
Orneryolfart357 Offline
PM senior

Registered: 10/06/07
Posts: 9053
Loc: Nevada
So if a person were to keep their firearms in a locked container as the warden approached, then without a search warrant he would have no power? But if in the Wardens own mind he felt that he had probable cause, then he could search "said" vehicle? How would this work? Couldn't any Warden say that they had probable cause and get around the issue? What is probable cause? Wouldn't this have to be proven prior to a search?
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#2638838 - 02/16/14 08:38 PM Re: Warden search authority? [Re: Orneryolfart357]
bignasty Offline
Seasoned Member

Registered: 08/17/12
Posts: 493
Loc: Tucson Arizona
Originally Posted By: Orneryolfart357
So if a person were to keep their firearms in a locked container as the warden approached, then without a search warrant he would have no power?


correct


But if in the Wardens own mind he felt that he had probable cause, then he could search "said" vehicle? How would this work? Couldn't any Warden say that they had probable cause and get around the issue? What is probable cause? Wouldn't this have to be proven prior to a search?

he could search a vehicle for weapons only called a "Terry Frisk " as per Terry v. Ohio but if there's a locked container in the vehicle he must have a search warrant to open the container.

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#2638861 - 02/16/14 08:58 PM Re: Warden search authority? [Re: Raspack]
Orneryolfart357 Offline
PM senior

Registered: 10/06/07
Posts: 9053
Loc: Nevada
Thanks for the info bignasty... Not that I have any worries, it's nice to know the legalities. If nore have info, please chime in.
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#2639049 - 02/17/14 04:41 AM Re: Warden search authority? [Re: Raspack]
OldTurtle Offline
Moderator

Registered: 12/20/05
Posts: 19624
Loc: East Central FL
Any locked container requires a proper judicial search warrant...The owner has the specific right to feel that whatever is in a container is totally private...That has been upheld in several Federal level courts numerous times...Normally, the same applies to the locked trunk of a vehicle, unless the driver/owner is being the subject of a custodial arrest and the vehicle is about to be towed to an impound facility. Then the officer has the right to do an "Inventory" search for his own protection, as well as the protection of the subject's property...If contraband is found incidental to that search, normally it is admissible in court for additional charges...
_________________________
Nature shares her secrets not to those that hurry by, but to those that walk with a happy heart and a seeing eye...


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#2639058 - 02/17/14 06:23 AM Re: Warden search authority? [Re: OldTurtle]
4949shooter Offline
Die Hard Member II

Registered: 11/17/08
Posts: 1605
Loc: New Jersey Republik
Originally Posted By: OldTurtle
Quote:
a CA state run hunt for dove, rabbit and pig on one of the ecological preserves in the central valley. It was a special hunt that you had to apply for and be drawn to participate.

When you applied for permission take part in the said hunt, did you sign any paperwork as part of the application???

Since it was a State sponsored event on what sounds like a potential State controlled area, I'm betting there was some fine print, as well as a liability release, involved in the application forms that gave full authority for necessary inspections as deemed necessary by the agent...Maybe not worded exactly that way but similar...

A lot of applicants to similar events are so involved in the application being totally correct that they gloss over the fine print as to personal rights...


I agree if this were the case the search would have been legal.

If not, the officer was probably under the impression consent was implied when the OP didn't refuse the request to check licenses and guns. A grey area for sure..

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#2640148 - 02/18/14 03:12 PM Re: Warden search authority? [Re: 4949shooter]
Yellowhammer Offline
Retired Moderator

Registered: 02/07/02
Posts: 16605
Loc: Huntington, Texas
This is from the Wyoming regulations

Quote:
RIGHT TO SEARCH. Any person authorized to enforce the Game
and Fish Act may seize and take into custody any wildlife that has
been unlawfully taken or that is unlawfully in possession. Any
person authorized to enforce the provisions of the Game and Fish
Act may search, without warrant, any camp, camp outfit, pack, pack
outfit, pack animal, motor vehicle, boat, wagon or trailer
for any
wildlife that the officer has probable cause to believe was taken or
is possessed unlawfully. Any person authorized to enforce the
provisions of the Game and Fish Act may search with a search
warrant any place or property for any wildlife that the officer may
have probable cause to believe was taken or is possessed
unlawfully.
_________________________
"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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#2640174 - 02/18/14 03:42 PM Re: Warden search authority? [Re: Yellowhammer]
4949shooter Offline
Die Hard Member II

Registered: 11/17/08
Posts: 1605
Loc: New Jersey Republik
You might have bolded this portion as well, because it is extremely important:

"...for any wildlife that the officer has probable cause to believe was taken or is possessed unlawfully."

The key words being "probable cause."

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#2640283 - 02/18/14 06:35 PM Re: Warden search authority? [Re: 4949shooter]
Coyotejunki Offline
PM senior

Registered: 04/03/04
Posts: 5196
Loc: MO
Quote:
The key words being "probable cause."


So what would constitute probable cause, other than seeing someone shooting an animal or seeing part of an animal in a vehicle?
_________________________
futuaris nisi irrisus ridebis



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#2640313 - 02/18/14 07:19 PM Re: Warden search authority? [Re: Raspack]
OldTurtle Offline
Moderator

Registered: 12/20/05
Posts: 19624
Loc: East Central FL
Coyotejunki,,,Just as an example, since if you change a word, you can change the law, stick with just what I write...

You are in an area where poaching is normal, there are shots heard in the area, you are driving down a back road and are stopped, upon approaching your vehicle, the Game Warden observes what appears to be unknown blood in the bed of your truck, or bumper of your car...That is probable cause to investigate farther..

At that point, you can choose to cooperate and allow a search of the vehicle, or deny a search and the Game Warden can 1) Force the issue on shaky grounds, or 2) Call for a back up area LEO to stand by to prevent movement of the vehicle or destruction of possible evidence and go to the nearest judge and apply for a search warrant, or 3) in some states, arrest/detain you physically for Investigation and tow the vehicle, as which time he will legally search for the purposes if Inventory to prevent loss of your personal property and protection of his own integrity...

Some states may also give statutory authority for a forced search, holding the officer non-liable based on probably cause that turns up nothing, but that is an area that you would need to research for yourself..

An arrest/detention for the purposes of Investigation usually applies to Felony crimes and you can be held for 24-48 hours, depending on the state statutes and local case law..If the Warden is unsuccessful in obtaining a warrant, he has to let you go about your business...I have no doubt that there are officers that will push with #1, betting that the subject will not get an attorney and file a law suit...There is a Federal Statute that applies to Violation of Civil Rights Under Color of Law, but it is seldom used in minor cases...
_________________________
Nature shares her secrets not to those that hurry by, but to those that walk with a happy heart and a seeing eye...


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#2640564 - 02/19/14 07:03 AM Re: Warden search authority? [Re: OldTurtle]
Yellowhammer Offline
Retired Moderator

Registered: 02/07/02
Posts: 16605
Loc: Huntington, Texas
Quote:
So what would constitute probable cause, other than seeing someone shooting an animal or seeing part of an animal in a vehicle?


Game warden is sitting on the side of the road, and hears a shot. A few minutes later you come driving by. Probable cause to check and see it you just shot something from the road.

Another: Game warden hears duck hunters roosting ducks after shooting hours. He gets to the hunters at their truck. He is going to search them, their truck, and anything else they have like a boat, trailer or other wise. He heard you shooting after hours and has probable cause to believe you have illegally taken game.

You are dove hunting. Game warden hears enough shooting in your direction to constitute several limits (you suck and shoot 5 boxes of shells to kill your limit of 12 birds). So he searches your game bag, truck and whatever else to see if you stashed more than your limit. He figures nobody shoots that bad.
_________________________
"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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#2640850 - 02/19/14 03:40 PM Re: Warden search authority? [Re: Fursniper]
bonecollector777 Offline
Seasoned Member

Registered: 10/09/12
Posts: 136
Loc: AZ
Originally Posted By: Fursniper


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:

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.

4. Inspect all wildlife taken or transported and seize all wildlife taken or possessed in violation of law, or showing evidence of illegal taking..


I never knew this law but it still doesn't give a warden any right to search your truck because he feels like it. In the original post according to the story the warden had absolutely no evidence that anything was illegally taken. The law states he has to have reasonable evidence that game was taken illegally. Which he did not. Just because you are hunting doesn't give them the right to search your stuff unless they have some evidence of something illegal taking place.

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#2640853 - 02/19/14 03:56 PM Re: Warden search authority? [Re: Raspack]
bonecollector777 Offline
Seasoned Member

Registered: 10/09/12
Posts: 136
Loc: AZ
All you people that keep Bolding these laws about wardens being able to search without a warrant kill me. It doesn't say they can search you just for the heck of it! Even if you are hunting! They have to of seen or had some sort of evidence that something illegal happened. PROBABLY CAUSE OF SOMETHING ILLEGAL HAPPENING IN ORDER TO SEARCH YOUR VEHICLE.

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#2641225 - 02/19/14 11:43 PM Re: Warden search authority? [Re: Raspack]
Fursniper Offline
Retired PM Staff

Registered: 09/14/09
Posts: 1967
Loc: AZ
Originally Posted By: bonecollector777
Originally Posted By: Fursniper


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:

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.

4. Inspect all wildlife taken or transported and seize all wildlife taken or possessed in violation of law, or showing evidence of illegal taking..


I never knew this law but it still doesn't give a warden any right to search your truck because he feels like it. In the original post according to the story the warden had absolutely no evidence that anything was illegally taken. The law states he has to have reasonable evidence that game was taken illegally. Which he did not. Just because you are hunting doesn't give them the right to search your stuff unless they have some evidence of something illegal taking place.


Originally Posted By: bonecollector777
All you people that keep Bolding these laws about wardens being able to search without a warrant kill me. It doesn't say they can search you just for the heck of it! Even if you are hunting! They have to of seen or had some sort of evidence that something illegal happened. PROBABLY CAUSE OF SOMETHING ILLEGAL HAPPENING IN ORDER TO SEARCH YOUR VEHICLE.


If an officer knows a person is hunting, the officer can inspect their hunting license and all wildlife taken or transported. Wildlife in a hunters possession can be inspected whether there is a suspected violation or not. Read #4 above, "Inspect all wildlife taken or transported....."

Inspecting the firearms after they were done hunting and put away in the vehicle was explained very well by "erict" which I agree changed the situation and would not have been a justified search.
_________________________
Introducing a new person to hunting and watching them be successful is more rewarding than being successful yourself.

Make time to create a conservationist.

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#2678301 - 04/29/14 06:38 PM Re: Warden search authority? [Re: Raspack]
Theshedhunter Offline
Die Hard Member II

Registered: 04/22/14
Posts: 1180
Loc: MT
Montana Law..

"87-1-506. Enforcement powers of wardens. (1) A warden may:

(a) serve a subpoena issued by a court for the trial of a violator of the fish and game laws;

(b) search, without a warrant, any tent not used as a residence, any boat, vehicle, box, locker, basket, creel, crate, game bag, or package, or their contents upon probable cause to believe that any fish and game law or department rule for the protection, conservation, or propagation of game, fish, birds, or fur-bearing animals has been violated;

(c) search, only with a search warrant and only when accompanied by a county sheriff or deputy sheriff, any dwelling house or other building;

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