Warden search authority?

He did it.. The case is if he would have cited you for a plug issue, then you could have taken the issue to court as a violation of the 4th ammendment.

As the example of from AZ shows that Fish and Game has the right to search.. Well just cause it's the law doesn't make it legal.

If he asked.. I would show him, maybe, I am not affraid of saying no, and am prepared for the reaction because they don't like hearing no.
I am all about making it legal to record any and all interaction with law enforcement, and challenge these laws that take away your rights. The guns were in the vehicle and they should get permission, or a warrent based on p cause to search.

I have run into game wardens while driving, and they have asked me for a hunting lic. I wasn't hunting at that moment, so i told them i have a drivers lic and registration if they would like. He didn't like it, but moved on. I had no animals and AZ is an open carry and no concealed permitt required state, i don't need a hunting lic to be out and about and have a gun. I know it's being difficult, or a thorn, but the government should be a minor part of society, and if i don't have any animals or I am not activly hunting, i dont need a lic, depending on the land where i am at, and don't need an access permitt.
 

I didn't mean the constitution said that about vehicles, I was trying to make 2 points, #1 that vehicles are treated as an extension of your house here, and #2 that we have a right to privacy in our constitution.

And that search doesn't meet consent, search warrant, or probable cause that a crime has been committed to apply for a search warrant , so here they could not search your vehicle for that. Not to mention the only ammo capacity restriction we have is for waterfowl.
 
Originally Posted By: bigsky_songdogs
Not to mention the only ammo capacity restriction we have is for waterfowl.


You sure about that?

Page 3 of the 2013 Montana Migratory Bird regs:

No persons shall take migratory game birds –
• With a trap, snare, net, rifle, pistol, swivel gun, shotgun larger than 10 gauge, punt gun, battery gun, machine gun, fish hook, poison, drug, explosive, or stupefying substance. • With a shotgun of any description capable of holding more than three shells, unless it is plugged with a one-piece filler, incapable of removal without disassembling the
gun, so its total capacity does not exceed three shells.

I can't find an exemption for doves.
Did I miss it somewhere?
 
Originally Posted By: fw707Originally Posted By: bigsky_songdogs
Not to mention the only ammo capacity restriction we have is for waterfowl.


You sure about that?

Page 3 of the 2013 Montana Migratory Bird regs:

No persons shall take migratory game birds –
• With a trap, snare, net, rifle, pistol, swivel gun, shotgun larger than 10 gauge, punt gun, battery gun, machine gun, fish hook, poison, drug, explosive, or stupefying substance. • With a shotgun of any description capable of holding more than three shells, unless it is plugged with a one-piece filler, incapable of removal without disassembling the
gun, so its total capacity does not exceed three shells.

I can't find an exemption for doves.
Did I miss it somewhere?

Sorry, migratory birds is correct, when most people here say waterfowl regs etc that encompasses all migratory birds, but I should have said it correctly. Upland birds have no restriction, migratory and waterfowl limit is 3
 
Although I believe the Eurasian collared dove is an exception because they are an unprotected and unregulated invasive species in MT, but that is irrelevant to what we are talking about
 
Quote:#1 that vehicles are treated as an extension of your house here, and #2 that we have a right to privacy in our constitution. ....Search and Seizure court case rulings may have changed over the years, but all the training and Constitutional Law courses that I've taken have ruled that if an item is within a locked/secure article, where the owner has the explicit expectation of privacy, a warrant is needed before any search or seizure...However, if it is not in a "Secure" area, it may be seized if it is in Plain View, the vehicle is being towed to an impound facility and the officer needs to inventory the contents for documentation and safe keeping, or the owner (or person immediately having custody) gives permission...

I know that under the "Castle Doctrine" in some states, the vehicle specifically is considered an extension of your home or domicile for the purposes of self protection on the public roadways, but if you come under a the jurisdiction of a special and restricted function, the search and seizure would come under a judicial ruling...Could really be interesting to "make some case law"...
 
Originally Posted By: OldTurtleQuote:#1 that vehicles are treated as an extension of your house here, and #2 that we have a right to privacy in our constitution. ....Search and Seizure court case rulings may have changed over the years, but all the training and Constitutional Law courses that I've taken have ruled that if an item is within a locked/secure article, where the owner has the explicit expectation of privacy, a warrant is needed before any search or seizure...However, if it is not in a "Secure" area, it may be seized if it is in Plain View, the vehicle is being towed to an impound facility and the officer needs to inventory the contents for documentation and safe keeping, or the owner (or person immediately having custody) gives permission...

I know that under the "Castle Doctrine" in some states, the vehicle specifically is considered an extension of your home or domicile for the purposes of self protection on the public roadways, but if you come under a the jurisdiction of a special and restricted function, the search and seizure would come under a judicial ruling...Could really be interesting to "make some case law"...

MT is unlike most if not all other states in that aspect in that we don't have an in plain sight exception "except" incident to an arrest the officer is in arms reach of a weapon that is in plain view and Obviously if there is a weapon within reach that would be an exigent circumstance and the officer can secure it.
 
Well, y'all can go ahead and beat on this one as long as you want to, but Rocky already summed up the entire situation.

Originally Posted By: Rocky1Otherwise, by your statement above the warden asked to check licenses, game, and guns, and you had already consented to 2 out of 3 in offering your licenses and showing the game. Since all three were requested in the same stroke, it could be construed legally, that you consented to all of the above, in providing any one.


Raspack made no mention of refusing the officer permission to check the guns.
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.

If Raspack feels that his feelings were hurt to the point that he needs some sort of restitution or apology, he should file a written complaint with the officer's supervisor.
In my old agency, written complaints were always investigated and a reply was always sent to the complainant.
I'm sure all agencies have similar policies.
 
Originally Posted By: fw707Well, y'all can go ahead and beat on this one as long as you want to, but Rocky already summed up the entire situation.

Originally Posted By: Rocky1Otherwise, by your statement above the warden asked to check licenses, game, and guns, and you had already consented to 2 out of 3 in offering your licenses and showing the game. Since all three were requested in the same stroke, it could be construed legally, that you consented to all of the above, in providing any one.


Raspack made no mention of refusing the officer permission to check the guns.
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.

If Raspack feels that his feelings were hurt to the point that he needs some sort of restitution or apology, he should file a written complaint with the officer's supervisor.
In my old agency, written complaints were always investigated and a reply was always sent to the complainant.
I'm sure all agencies have similar policies.

I think you are probably right, depending on exactly what was said or asked etc, consent was probably implied when the Warden asked to check all of the above and Raspack not refusing the request or actually consenting by saying he can check the guns
 
I think once the game warden discovered (or you told him) you were hunting and checked your license, or saw game that give them plenty of authority...I think all they need is reasonable suspicion that your hunting/fishing to check your vehicle and stop and check your hunting license.

Most game wardens have more authority than state/local police.


I also believe they can check the vehicle for bullets too...so thats almost anywhere in the vehicle.


 
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Originally Posted By: fw707Raspack 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: fw707The 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.
 
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"
 
Originally Posted By: FursniperThe 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.
 
Originally Posted By: YellowhammerIn 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."
 
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.
 
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.
 
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.
 
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.
 
Originally Posted By: bigsky_songdogsOriginally Posted By: RadioOriginally Posted By: fw707Originally Posted By: RaspackMy 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.gif


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
 
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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