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Good News for California Sportsmen

The courts have ruled that you’re allowed to have some rights. But just a few, so don’t get uppity. (One judge apparently says you have no protection from full searches just because you do hunt and fish.)

The California Court of Appeal for the Fourth District on Tuesday ruled that a state agency may not pull over and search a motorist on a mere hunch that a lobster might be hidden in the vehicle. The court considered the case of Bounh Maikhio, a motorist stopped by Department of Fish and Game Warden Erik Fleet on August 19, 2007 at 11pm. That evening, Fleet had been spying through a telescope on the Ocean Beach pier in San Diego when he saw Maikhio put something into his bag.

Fleet testified that he did not “necessarily” suspect Maikhio of a crime because he had no way of knowing whether the man had been fishing legitimately or not. Regardless, Fleet waited until Maikhio had driven away from the pier to stop him. While searching through his car. Fleet found Maikhio’s bag, which contained a spiny lobster. Maikhio was handcuffed and cited for lobster possession during closed season.

The case is of particular interest because California Attorney General Jerry Brown argued that a state warden has the right to stop any driver “without reasonable suspicion that he committed any crime.” Maikhio, in contrast, could not afford to hire an attorney and was represented by the public defender’s office which argued no such authority existed. The appeals court agreed, citing a 1944 attorney general’s ruling. The court argued that wardens could enforce the law without harassing motorists. …

The court went on to explain that because the warden had no individualized suspicion that Maikhio had been involved in criminal activity, the stop was just as unconstitutional as setting up a roadblock to search every passing vehicle for lobsters. …

Justice Patricia D. Benke disagreed, arguing that Constitutional protections do not apply to motorists who may also be hunters or fishermen.

“Because of the highly regulated nature of hunting and fishing and the consequent diminished expectation of privacy of hunters and fisherman, there is no requirement in our statutes or under the Constitution that a game warden believe that any crimes have been committed or that any game regulations have been violated before exercising his or her powers of inspection,” Benke wrote in her dissent.

Does that mean a game warden can go search Benke’s house without any suspicion she actually committed a crime? Well, they can’t thanks to the decision of her fellow judges, but by her own logic, that would seemingly be allowed.

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