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Thread: 4th amendment

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    Default 4th amendment

    With all due respect to wardens and other law enforcement and in the name of preservation:

    Why is it legal for Game Wardens to perform unconstitutional search and seizures without warrant or probable cause? What would the ramifications be if a hunter refused / didn't consent to the search?

    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
    - 4th amendment

    My concern is that the 4th amendment doesn't have exemptions. However, Wardens and US Coast Guards can board and search any vessel at any time. Wardens can search vehicles, ice chests, guns, homes and person if they are in the act of hunting or fishing (or right before or after hunting or fishing).

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    We do not have a constitutional right to hunt. The state says it will allow us to hunt, but only if we give up rights.
    Society in any state is a blessing, but government even in its best state is but a necessary evil. T. Paine


    I am old enough to remember when this really was the land of the free. CS

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    When I signed my license I didn't see anything agreeing to waive my 4th amendment right... However I would agree to a search... I just don't think it's right

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    Quote Originally Posted by 805brian View Post
    When I signed my license I didn't see anything agreeing to waive my 4th amendment right... However I would agree to a search... I just don't think it's right
    I agree with you. It just ain't right.


    I must tell you I have had few inter-actions with game wardens, but have never been mistreated by any of them. Most of the time they could have cited me for something if they wanted too, and I would have had no defense. But with me, they have always looked at the spirit of the law instead of the letter of the law.

    This doesn't mean that ALL game wardens are ALWAYS friendly to hunters --- but in my experience they have always treated me fair. But they are government, and any time you trust government to do the right thing...
    Society in any state is a blessing, but government even in its best state is but a necessary evil. T. Paine


    I am old enough to remember when this really was the land of the free. CS

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    First and foremost, you should realize and accept that the searches are not unconstitutional. The courts have determined that in most person on person crime, there is a witness, victim...someone that can speak out about the crime. In wildlife crimes, there is seldom anyone to speak out about the crime, and animals can not speak out about it, as that are not capable of speaking. That is the basic logic utilized by the courts in coming to this conclusion. Frankly, I agree, our wildlife, the wildlife that I value so highly, should have such protections against unscrupulous people as poachers, and people that would exploit our wildlife. IMNSHO, this protection is a minor inconvenience. But, I do wish that all F&W Wardens go about this in as respectful a manner as possible, unless of course guilt has been firmly established.

    Second, Wardens do not have the right to search without probable cause. However, they do have the right to search (no warrant needed) if you are, or have been engaged in hunting or fishing, or if you appear to have been, i.e., have hunting or fishing gear with you. Simply hunting, fishing, or having been hunting or fishing, even appearing as if you were or are, is probable cause for a Warden to search you, your vehicle... So, refusing is pointless, because they do not need your permission, nor approval to search you, your possessions, or vehicle.

    Please keep in mind that I did not say that you had to like it, but it is something we hunters and fishermen do not have a choice about, thus the: accept it.
    Last edited by Bubblehide; 01-22-2015 at 08:32 PM.

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    Quote Originally Posted by Bubblehide View Post
    First and foremost, you should realize and accept that the searches are not unconstitutional. The courts have determined that in most person on person crime, there is a witness, victim...someone that can speak out about the crime. In wildlife crimes, there is seldom anyone to speak out about the crime, and animals can not speak out about it, as that are not capable of speaking.

    You are not implying that animals have the same constitutional rights as I have are you??????????

    Did our forefathers say all creatures were made equal?


    The victim in wildlife crime is not the dumb animal; but is you and I and people who want to preserve the opportunity to hunt.
    Society in any state is a blessing, but government even in its best state is but a necessary evil. T. Paine


    I am old enough to remember when this really was the land of the free. CS

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    why do you think they have the right to search you or your vehicle without consent or warrant???

    just to let you know... they don't!!!

    they can ask you to open your backpack and take a look in, or make visible a place you maybe hiding game but to think they can or have the right to trump your 4th is completely false.

    a warden has no authority to violate your rights period. and if he or she does they have no ground to stand on for any violation.

    just try and explain how I'm wrong... it will never happen.

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    Quote Originally Posted by Common Sense View Post
    You are not implying that animals have the same constitutional rights as I have are you??????????

    Did our forefathers say all creatures were made equal?


    The victim in wildlife crime is not the dumb animal; but is you and I and people who want to preserve the opportunity to hunt.
    Well, the animal is actually the victim. Since their the ones that usually die from poaching and what not haha We just suffer the repercussions.

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    Quote Originally Posted by Montaj629 View Post
    Well, the animal is actually the victim. Since their the ones that usually die from poaching and what not haha We just suffer the repercussions.
    ''


    If someone burns down my house, is my house the victim? Animals are property. Wildlife belongs to the state.
    Society in any state is a blessing, but government even in its best state is but a necessary evil. T. Paine


    I am old enough to remember when this really was the land of the free. CS

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    Quote Originally Posted by markt800 View Post
    why do you think they have the right to search you or your vehicle without consent or warrant???

    just to let you know... they don't!!!

    they can ask you to open your backpack and take a look in, or make visible a place you maybe hiding game but to think they can or have the right to trump your 4th is completely false.

    a warden has no authority to violate your rights period. and if he or she does they have no ground to stand on for any violation.

    just try and explain how I'm wrong... it will never happen.

    Why, because it's the law, established by case law, nation wide. So they do, they do!!!

    So, your trying to tell all of us that the IRS can not seize your property without obtaining a court order. Your trying to say that the IRS cannot seize your money without going through due-process.

    you can pretend that the 4th amendment applies in every single case all you want, but it will never change reality.

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    Quote Originally Posted by Common Sense View Post
    ''


    If someone burns down my house, is my house the victim? Animals are property. Wildlife belongs to the state.
    Houses aren't alive... So no. Agreed that wildlife is managed by the state.

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    Trees are alive, are they victims or property? Animals should have no rights. I am the victim If you steal or kill my animal.
    Society in any state is a blessing, but government even in its best state is but a necessary evil. T. Paine


    I am old enough to remember when this really was the land of the free. CS

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    I know from law enforcement friends that if you are even traveling through an area that has game, in season or not game cops can stop and search you and your vehicle , they tell of calling in F&G to search a vehicle that wasn't hunting but was in a game area so that hopefully F&G would discover drugs and it would become their bust. And let's remember that a great motivator is the fact that local Leo's receive up to 65% of monies received from confiscated property that is sold because it was used in the commission of a crime. A lot about these laws infuriates me but, basically we're screwed, we talk the talk sometimes but when push comes to shove most of us are unwilling to challenge current laws, ie, time off, court costs and possible criminal record, I wonder sometimes if the government could confiscate my car for a traffic infraction or why don't they confiscate a hotel that has someone busted for drugs like they do houses even though the actual owner wasn't aware of the problem,

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    i don't know where to start. First off, I'm not a lawyer but I did stay at a Holiday Inn Express last week.

    Probable Cause is always needed. You can't be detained for absolutely "no reason". The whim or curiosity of the officer is not a reason. There are exceptions to 4th amendment seizures based on case law supported exceptions. For instance, officers need permission, exigency or a search warrant to search you. A well known exception is if you are in a vehicle. The logic goes like this...Officer stops you for running a red light. He wants to search your car. He has no emergency reason, he then asks your permission and you say "No", he has no PC. You get your ticket and drive away.

    Same stop but now the officer has PC but not an exigency. PC does not usually allow an instantaneous search but does allow the officer to check with a judge, and if the judge agrees, search. BUT, because this is a car there is a "vehicle exception" that allows the officer to articulate his PC in his report and search the vehicle with out first checking with the judge. This is because the courts have ruled that vehicles "are inherently mobile" and it is "unreasonable" to require the officer to write a search warrant, meet with a judge, get it signed and then conduct the search. Similar exceptions exist for fish and game laws. Being on a boat with fishing gear displayed gives the officers PC to exercise the "search warrant exception". In a way this allows you, the detainee, to be less inconvenienced if you are innocent (the contact will be over quickly). If you are guilty then asta la vista baby. If this didn't exist then the officer would have the right to detain you for the many hours it would take him to write the warrant, meet a judge and then return for the search. Some officers are lazy and just want the contact over. Most are not and would make you sit there for hour upon hour as they sought their warrant.

    As far as the 65% of monies being confiscated going to police departments that is candidly crazy talk and so rare as to be not worthy of serious conversation. The officers get nothing, the money goes into a special fund that can only be spent on a narrow list of things involving narcotics reduction. Seizure requires long term investment in time and significant proof of wrong doing. The item seized must have been purchased with illegal money made by engaging in illegal activity. Tough to prove, usually reserved for large scale drug dealers, not the guy who catches one fish over limit.

    The exception may be on Indian Reservations because they are sovereign nations. I have no experience and have only heard rumors.

    Hope that explains it, not trying to stick my thumb in anyones eye, just wanted accurate information out there.

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    Quote Originally Posted by bsandls View Post
    There are exceptions to 4th amendment seizures.
    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Fourth Amendment, U.S. Constitution

    There are no exceptions I see.

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    Quote Originally Posted by 805brian View Post
    ...

    There are no exceptions I see.

    You can stick your head in the sand if you like, after all, you do have the right to do that. I for one, will not object to you exercising that right.

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    Quote Originally Posted by 805brian View Post
    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Fourth Amendment, U.S. Constitution

    There are no exceptions I see.
    Please refer to the key words in this topic, "...unreasonable searches...". The courts determine and define reasonable vs. unreasonable. I am a huge fan of the 4th amendment, please don't think for a second I would argue it away, I'm just pointing out what current case law says. Anyone 18 years of age or older can change case law by voting the current bums out of office and putting some new ones in. Please vote, it's how you get to personally influence the legislature that makes these laws and that ultimately defines them.
    Last edited by bsandls; 01-24-2015 at 08:22 AM.

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    This is going to be a long post so get a cup of coffee (a large cup) and we will explore a few things together. I'm not a lawyer but I was a cop (4 years) and a game warden (30+ years). I swore to uphold the U.S. Constitution and the California Constitution. I did not take this oath lightly.

    First, there are exceptions to every right (and there's even an exception to the first seven words of this sentence). You cannot yell, "FIRE!" in a movie theater if there isn't a fire or utter "fighting words" (per U.S. Supreme Court decisions) that cause an immediate violent reaction. These are exceptions to the First Amendment of free speech. I cannot behead someone or stone them to death in the name of practicing my religion even though I have the freedom to choose what ever religion I wish. "Exigent circumstances" (someone screaming "Help!" behind a closed door; sounds of evidence (drugs) possibly being flushed down a toilet; the sound of a person running away from the door after police announce their presence, etc.) are an exceptions to the Fourth Amendment. All of these exceptions are not seen in any of the Amendments.

    Second, as to the Fourth Amendment (see text above from 805brian) and the DFW. Section 1006 of the Fish and Game Code states,
    "The department may inspect the following a) All boats, markets, stores and other buildings, except dwellings, and all receptacles, except the clothing actually worn by a person at the time of inspection, where birds, mammals, fish, reptiles, or amphibia may be stored, placed, or held for sale or storage.
    (b) All boxes and packages containing birds, mammals, fish, reptiles, or amphibia which are held for transportation by any common carrier."

    This section includes receptacles that may house birds, mammals, fish, reptiles or amphibia or parts thereof. This includes feathers, scales, blood, hair, etc.
    "Dwellings" means hard-sided structures such as homes, apartments, sheds, garages, trailers and RVs (need a warrant or consent). Tents and pop-up tents/trailers are not exempt from game warden searches (no warrant needed).

    Existing law as well as case law allows any peace officer to pat down (frisk) a person being questioned by the police "for the officer's safety as well as the public's safety". This search is to make sure the person does not have any weapons on them that may harm the officer. Anything found incidental to this frisk can be used as evidence in court.

    This law (section 1006) was upheld by by the California Supreme Court in a 1986 (maybe 1983?) decision against Hof's Hut restaurant. The court stated that 1006 was indeed a violation of the Fourth Amendment but the court said it would allow this "minor intrusion" because, A) Only "the department" (DFW) was allowed these inspection powers (not the SO or PD) and B) the law limited the inspection to specified areas and/or items. The court reasoned that since these inspections were so narrowly defined, it was a minor intrusion and the law would stand.

    Just recently (2012), the California Supreme Court has unanimously decided that California Game Wardens can lawfully search the vehicles of fishermen leaving fishing grounds without a warrant in the name of "conservation." (People v. Maikhio, 51 Cal, 4th 1074 (Cal. 2011)). The U.S. Supreme Court has refused to hear the case so the California court's decision stands. The California Supreme Court held that such a warrantless stop was reasonable under the Fourth Amendment of the U.S. Constitution, because it was in the category of administrative searches and seizures that were permissible absent reasonable suspicion when: (1) the state had a special need distinct from enforcing the criminal law; (2) conducting an inspection only upon reasonable suspicion would not effectively meet that need; and (3) intrusion upon the reasonable expectation of privacy was minimal. Covert observation was a reasonable means of enforcing the fish and game laws.

    Third, so what happens if I refuse to let a warden search the areas he/she is legally allowed to search? Section 2012 of the F&G Code comes into play. It states, "All licenses, tags, and the birds, mammals, fish, reptiles, or amphibians taken or otherwise dealt with under this code, and any device or apparatus designed to be, and capable of being, used to take birds, mammals, fish, reptiles, or amphibians shall be exhibited upon demand to any person authorized by the department to enforce this code or any law relating to the protection and conservation of birds, mammals, fish, reptiles, or amphibians."

    Here again, the law is very limiting on who (DFW only) and what must be shown to wardens. Failure to comply is a misdemeanor and the person is subject to arrest. Upon arrest, the warden may search without the consent of the arrestee. Here is an exemption to the Fifth Amendment (the right against self incrimination). Under this law I must show not only my legal limit but I must also show the warden any overlimit I might be hiding. Failure to show my overlimit would be an additional charge.

    Wardens generally "walk softly and carry a big stick". Wardens should be able to explain the reason, justification and legal authority to conduct their search and/or arrest. It is much easier (on the officer and the person being questioned) to talk a person into complying rather than force the issue. It takes more time but is saves a lot of needless hassles. Wardens have a lot of power at their discretion without violating their oath to support and defend the Constitution.
    Last edited by #1Predator; 01-24-2015 at 01:30 PM. Reason: Grammar
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    Game wardens have the highest authority of L.e.o.'s if there is any suspicion of anything to do with breaking the laws of obtaining a game animal they can search anything they want and cross any borders in the state they need too to investigate.
    they can search anything they want to try an find any evidence of wrong doing.
    Game wardens are great to have as freinds as far as I am concerned especially if u have Huntable property.
    And yes I would always offer them the opportunity to hunt our farm property in new York and if i ever had a problem with tresspessers all i had to do is make a call to handle it for me, Well worth it.
    Game wardens have a great passion for the outdoors and hunting too just like we all do so I highly respect the job they have to do it ain't easy......tra
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    #1, not nearly a long read, but well done; thank you!

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    Quote Originally Posted by Bubblehide View Post
    #1, not nearly a long read, but well done; thank you!
    You're very welcome. I hope this cleared up any misconceptions regarding warden search powers. I forgot to mention that I've been teaching Wildlife Law at the local college for 17 years now. It's a blast!
    "We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm." George Orwell, English novelist

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    #1, thanks for your service. May I ask you a question?
    I bump into DFG on a "hello how are you" spontaneous meeting. I don't have a license showing a fishing rod or shotgun in hand, just hiking. If we talk and they determine by our chat I had fished or hunted while camping in the boonies, do I give up my or our groups 4A rights and a search is now allowed? I believe so???

    I am no lawbreaker, just want to know my rights. There are good and bad LE/wardens out there.
    Also good to know if a friend brings someone you don't know on a trip and they look a little sketchy. A felony stop for drugs or other contraband sucks for everyone in a group even if you are innocent.
    "There is something about those bleating chickens that makes a man want to grab his shotgun." - Edward Abbey

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    #1 predator, thanks for the knowledgeable response. I've wondered about this myself before.

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    Quote Originally Posted by quaildeath View Post
    #1, thanks for your service. May I ask you a question?
    I bump into DFG on a "hello how are you" spontaneous meeting. I don't have a license showing a fishing rod or shotgun in hand, just hiking. If we talk and they determine by our chat I had fished or hunted while camping in the boonies, do I give up my or our groups 4A rights and a search is now allowed? I believe so???

    I am no lawbreaker, just want to know my rights. There are good and bad LE/wardens out there.
    Also good to know if a friend brings someone you don't know on a trip and they look a little sketchy. A felony stop for drugs or other contraband sucks for everyone in a group even if you are innocent.
    The part of your scenario that would allow a search is in bold type above. Probable cause (PC) can be found in your statement to the officer. The officer's personal observations (he/she may have observed you fishing from a distance with a spotting scope or binoculars; fish scales, blood or slime on clothing or equipment; smell of fish on clothing; etc.) can also lead to a search as well. I agree that there are good and bad people in every line of work, not just LEOs. Probably not a good idea to poke the tiger in the cage.
    "We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm." George Orwell, English novelist

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    Quote Originally Posted by Bubblehide View Post
    Why, because it's the law, established by case law, nation wide. So they do, they do!!!

    So, your trying to tell all of us that the IRS can not seize your property without obtaining a court order. Your trying to say that the IRS cannot seize your money without going through due-process.

    you can pretend that the 4th amendment applies in every single case all you want, but it will never change reality.
    the irs has the the court order "warrant" if your up for an audit.

    case law??? please refer to the code # that lets any leo bypass your 4th without probable cause or warrant? hunting is not probable cause.

    if you are illegally searched without warrant all evidence will be thrown out in the court of law if it turned out you were hiding something.

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    Quote Originally Posted by #1Predator View Post
    The part of your scenario that would allow a search is in bold type above. Probable cause (PC) can be found in your statement to the officer. The officer's personal observations (he/she may have observed you fishing from a distance with a spotting scope or binoculars; fish scales, blood or slime on clothing or equipment; smell of fish on clothing; etc.) can also lead to a search as well. I agree that there are good and bad people in every line of work, not just LEOs. Probably not a good idea to poke the tiger in the cage.
    That is what I figured, mainly, "giving" them their PC where there is none otherwise.
    Any happy go lucky chit chat with LE, is always fishing. It is what it is.
    Last edited by quaildeath; 01-24-2015 at 10:51 PM.
    "There is something about those bleating chickens that makes a man want to grab his shotgun." - Edward Abbey

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    Quote Originally Posted by markt800 View Post
    the irs has the the court order "warrant" if your up for an audit.

    case law??? please refer to the code # that lets any leo bypass your 4th without probable cause or warrant? hunting is not probable cause.

    if you are illegally searched without warrant all evidence will be thrown out in the court of law if it turned out you were hiding something.

    Please, read the entire thread, and then restate any questions.

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