Suspicionless Vehicle Stop of Angler Recently Seen Fishing by Game Warden to Check for Catch Is Valid

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In People v. Maikhio (2011) 51 C.4th 1074, 126 C.R.3d 74, 253 P.3d 247, a game warden, using a spotting scope, saw defendant handlining, a fishing method frequently used to catch lobsters (but illegal for that purpose), from a pier. The warden saw defendant catch something (but could not determine what it was) and put it in a black bag. Defendant then left the pier in his car. About three blocks from the pier, the warden stopped defendant and asked him whether he had caught anything. When defendant replied that he had not, the warden searched the car, found the black bag, opened it, and found a California spiny lobster, which was out of season. Defendant admitted that the lobster was his and was issued a citation. The warden returned the lobster to the water.

Defendant was charged with two misdemeanors: possessing a spiny lobster during a closed season (14 Cal. Code Reg. §29.90(a)) and failing to exhibit his catch on demand (Fish & Game C. 2012). He moved to suppress the evidence on the ground that the warden lacked a reasonable suspicion that he had committed a crime and the vehicle stop therefore violated the Fourth Amendment. The trial court granted defendant's motion to suppress and dismissed the charges. The prosecution appealed the dismissal and the appellate department of the superior court reversed, concluding that the stop and search were justified as an administrative inspection under the Fish and Game Code and that the warden had a reasonable suspicion that defendant had illegally harvested a lobster out of season. Defendant then appealed to the Court of Appeal, which reversed, concluding that the vehicle stop was not authorized under the relevant provisions of the Fish and Game Code and that the stop was unconstitutional because the warden lacked a reasonable suspicion that defendant had committed a crime. Held, reversed.

(a) Statutory authorization for stop. Under Fish & Game C. 2012, a person who fishes or hunts in California must, on demand, exhibit to a game warden (1) any required license; (2) all fish or game that have been caught or taken, and (3) any equipment used to take the fish or game. It appears clear that the statute implicitly authorizes a warden to demand that a person who is or has recently been fishing display these items to the warden. Nothing in the statutory language suggests that such a demand may only be made where the warden reasonably suspects a violation of the law or that the demand may not be made when the suspect is in a vehicle. (51 C.4th 1087.)

(b) Constitutionality of stop.

(1) United States Supreme Court precedents. Under the California Constitution, evidence sought to be introduced at a criminal trial may be suppressed only if exclusion is mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment. (51 C.4th 1089, p. 9, citing In re Lance W. (1985) 37 C.3d 873, 210 C.R. 631, 694 P.2d 744, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §13.) While the United States Supreme Court has not directly addressed the constitutional validity of a brief stop of an angler to demand the display of a license or any fish in the angler's possession, either when the angler is on foot or in a vehicle, such a stop is justified under the reasoning employed in a line of United States Supreme Court cases that have upheld regulatory or administrative searches or seizures conducted without reasonable suspicion that an individual or business has violated a statute or regulation. (51 C.4th 1090, p. 9; citing, e.g., United States v. Biswell (1972) 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §302; Donovan v. Dewey (1981) 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §303; New York v. Burger (1987) 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §303; Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §321; National Treasury Employees Union v. Von Raab (1989) 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §322; and Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §324.)

(2) Special Needs Analysis. These cases have generally involved circumstances in which (a) the state has special needs to conduct inspections beyond its ordinary interest in law enforcement, (b) regulations in the area could not be effectively enforced if they were limited to circumstances where there was a reasonable suspicion of a violation; and (c) those participating in the undertaking have a reduced expectation of privacy due to its nature, and the discretion of the inspecting officer is constrained by the authorizing statute or regulation. (51 C.4th 1092.)

(3) Application to nonvehicle search. (a) The state has a vital interest in protecting and preserving its natural resources, including wildlife, for the benefit of the public and future generations. (51 C.4th 1093.) (b) A rule requiring a reasonable suspicion that there has been a violation of a statute or regulation before a game warden could stop an angler and demand display of his or her catch would compromise the state's ability to achieve this objective. Violations of this type are seldom detectable from the angler's appearance or conduct, and depend on the warden's ability to stop and demand the required disclosure of any person he or she believes is or has recently been fishing. (51 C.4th 1095.) (c) The intrusion on privacy resulting from this type of stop is relatively minor. The angler is voluntarily engaging in a heavily regulated enterprise. The required display relates directly to this enterprise and does not require disclosure of any unrelated possessions. Because Fish & Game C. 2012 limits the items a warden may demand be displayed, it constrains the warden's discretion in a manner that closely comports with the important state interest in resource preservation. (51 C.4th 1096.)

(4) Application to vehicle search. Even assuming that a vehicle stop is more intrusive than a stop of a person on foot, a vehicle stop by a game warden made reasonably close in time and location to a person's fishing activity impinges only modestly on the person's reasonable expectation of privacy, and is not more intrusive than actions of wardens that have been upheld in other California cases. (51 C.4th 1098, p. 14, citing Betchart v. Department of Fish & Game (1984) 158 C.A.3d 1104, 205 C.R. 135, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §307; People v. Harbor Hut Restaurant (1983) 147 C.A.3d 1151, 196 C.R. 7, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §307.) “In light of the importance of the state interest served by such a stop, and the practical need to be able to make such a stop and demand even when there is not reasonable suspicion that an angler or hunter has violated a statute or regulation, we conclude that when a game warden reasonably believes that an occupant of a vehicle has recently been fishing or hunting, the warden does not violate the Fourth Amendment by stopping the vehicle to demand the display of all fish or game that have been taken.” (51 C.4th 1098.)

(5) Programmatic purpose of stop. Defendant argues that because the warden stopped vehicles leaving the pier only when he believed the occupant might have violated the law, his primary motive for the stop was crime detection, rather than protection of the state’s fish. However, that a violation of an administrative regulation may be prosecuted as a crime does not mean that an administrative stop or inspection procedure is primarily intended as an ordinary crime control measure. The proper focus is on the programmatic purpose of the stop and demand, which, under Fish & Game C. 2012 is to protect and preserve the state’s wildlife. That the officer returned the lobster to the ocean indicates that this was the purpose of the warden’s actions. (51 C.4th 1099.)

(6) Reasonable means of enforcement. Defendant contends that the prosecution was required to establish that the warden’s investigative method was necessary and more effective than alternative enforcement procedures. This is not the case. The state has “considerable leeway in choosing between alternative enforcement methods.” Here, although the warden’s method was surreptitious, the activity being observed occurred in a public place and was not of a private nature. The administrative practice of using covert observation, which encourages self-policing by anglers and hunters, is a reasonable means of enforcing the applicable fish and game statutes and regulations. (51 C.4th 1100.)

(7) Time and location of stop. Defendant argues that the stop made here is particularly intrusive because it occurred at night in an urban area. But defendant chose to fish at night on an urban pier, and he was pulled over close to the pier by a uniformed warden. This intrusion on defendant’s privacy was not so severe as to outweigh the justification for the stop. (51 C.4th 1101.)

(b) Constitutionality of search. Because the warden reasonably believed that defendant was lying when he told him that he did not have any fish or lobsters in his vehicle, the officer then had probable cause to believe that defendant was in violation of Fish & Game C. 2012, and that evidence of this violation was reasonably likely to be in the black bag, which was reasonably likely to be in the vehicle. Thus, the warden’s search was supported by probable cause and did not violate the Fourth Amendment. (51 C.4th 1102.)

Witkin References

On inspections by game wardens, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §307.

On governmental interest in regulated businesses, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §293 et seq.

On special needs searches generally, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §292.

On vehicle searches, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §217 et seq.

On reasonable expectation of privacy, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §194 et seq.