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View Full Version : Conservation Officers/Game Wardens and the 4th Amendment


M1Garand2371
August 13, 2010, 06:53 PM
Hello,

I was curious if anyone could answer a question for me. I enjoy Constitutional debate and the thought occurred to me about the rights a Game Warden or Conservation Officer has. I know a Police officer without suspicion or a warrant needs permission to enter my home. If I have private property, can a Game Warden enter without my permission or reasonable suspicion?

For example, when fishing, I'm understanding of them checking licenses but if I'm hunting, (I bowhunt mainly so scent control is a strict discipliine with me) and the game warden wanders in to ask for my license or what not without complete scent concealment, he can destroy the entire day's hunting for that spot...but at the same time, how would he or she enforce rules around baiting(I know some states where baiting is illegal, even on your own Private Property) and I was curious where the line in the sand is. If they come on your property and find evidence without a warrant of baiting or some other law, wouldn't it be inadmissable in court? I'm not looking to break the law but the question is making me curious about property rights and the 4th Amendment... I have the utmost respect for the game wardens as they keep the deer and game out there for us to hunt for generations to come...

Thanks for any info that's available! If there is a CO out there, I'd love to hear your feedback.

Thank you!!!

shortwave
August 13, 2010, 07:57 PM
In the State of Ohio a game warden can come on your private property without permission due to the fact the animals you are hunting belong to the state.
I'm also a very fanatical scent free, well camo'ed bowhunter that has had a few hunts blown by not only one warden coming across my property but several spread out almost in a 'deer drive' formation. Not only coming across my property but the 170 acre's of private property adjoining my property:rolleyes:. They're never camo'ed(wear florescent yellow/orange vest)and never quite.

As far as entering your home, probable cause(I use that term loosely) ,a warrant or permission is in order for he/she to enter.

Art Eatman
August 13, 2010, 10:02 PM
Just guessing: Since the states own the wildlife in them, the rationale is that a game warden is checking on actions involving state property, wherever it might be located.

SFAIK, to enter a home requires a search warrant.

taylorce1
August 13, 2010, 10:07 PM
Most GW/CO will not enter private property unless they can see you doing something questionable here in Colorado or have a good witness to illegal activities. They will however pull you over on public roads and check your tags and game if you have any to make sure you cross yor T's and dot the I's. There is so much public land here in Colordo that they don't have time to just enter private property to check you out.

hogdogs
August 13, 2010, 10:43 PM
Unless changed in the last few years, Florida G-Dubs can enter without a warrant on game related reasons... They used to be utilized to infiltrate the homes of the smarter dope guys. If the coppers couldn't get the required evidence, they would send in a G-Dub or 2 and they would do a quick "look around" Due to "suspicion of game related violations" and while in the house, they were lookin' for that "already visible" evidence to help the cops get what they need to enter with warrant.

They have even had sheriff teams "accompany" the G-Dub "for his safety" and enter while "assisting" him.

Brent

bamaranger
August 14, 2010, 05:54 AM
Not a lawyer, but have some working knowledge of 4th amendment issues.

The issue of officers entering onto pvt. property (as in lands) to conduct a search (as for bait) is dealt w/ in what is known as the "exceptions" to the 4th amendment. One of the exceptions is the issue of "open fields". What is in play is the matter of expectation of privacy. An individual cannot reasonably expect to have privacy in woods lands or fields that are generally accessible to anybody that might wander along. The courts have decided that woods, fields streams do not constitute the equivalent of a dwelling, their person, or possessions (as perhaps a bag or purse). That goes pretty far back, to the 1920's, and a fence, sign or barricade will not likely change the interpretation. A civilian might be guilty of trespassing, which is a criminal offense in the right circumstances on your pvt property, but an officer is not committing a criminal offense by performing his duties, nor a constitutional offense, due to the open fields exception to the 4th amendment.

This is for lands, not carport, shed, barn, etc. That is another lesson, called curtilage.


There are other exceptions to the 4th. One you mentioned yourself, ... consent. Others are motor vehicles, , "plain sight", exigent circumstances and border/admin searches. In all these instances, searches may be conducted w/o a warrant, though sometimes limited in extent and nature.
Again, another time.

Since a WCO is not in violation of the 4th due to the "open fields" exception, the illegal bait he finds (or photos, sketches of same) will likely be admissible in court as evidence against the accused.

Finally, "G-dub" and "copper", now there are two complimentary/ positive terms.

hogdogs
August 14, 2010, 10:03 AM
I am not using them in a disrespectful context. But just how I chose to write...
Sorry if'n it offended anyone.

Brent

Glenn Bartley
August 14, 2010, 09:26 PM
What in the world is a G-Dubs?

hooligan1
August 14, 2010, 09:37 PM
Make no mistakes, in Missouri, they have the right to come in your house and check your freezer or freezers, refridgerators, for illegal game and such. They also have the power to arrest and detain until county officials arrive or state troopers, like in the case of alcohol and controlled substances. Hats off BTW, for all of Missouri's Law Inforcement Personel.;) G-Dubs is slang for Game Wardens!!:p

publius
August 14, 2010, 09:44 PM
They typically do not need a warrant. Some Sheriffs and police depts. used to abuse this fact by getting a game warden to come along when they wanted to search a residence w/o a warrant. This practice has stopped.

hogdogs
August 15, 2010, 09:40 AM
G-Dub= G-Dubya= G.W.= Game Warden
A redneck version of 5-0= PO-PO= Police.:o
Brent

Glenn Bartley
August 15, 2010, 09:56 AM
Make no mistakes, in Missouri, they have the right to come in your house and check your freezer or freezers, refridgerators, for illegal game and such. In no state in the USA does law enforcement have the right to search your home, for evidence of a criminal offense or to make an arrest, without a warrant unless there are very specific exceptions in place such as valid consent of the homeowner or resident, exigent circumstances, hot pursuit and so forth (note plain view of an offense that is not also an exigent circumstance does not allow for entry as some may think). They may be able to come into the home of a licensed hunter, if by virtue of the hunter having purchased a license he agrees to such searches, but the government does not have the right to search your home without warrant, unless they have consent or other circumstances as mentioned above. Bear in mind consent to search can be withdrawn at any time even if it means loss of hunting or other privileges (such as parole). If you still think they do have the right to enter your home to conduct such a search for evidence of a crime or to effect an arrest without certain exceptions in place (of which looking for evidence of hunting crimes is not one), please supply the legal references that state such is the right of the government in any state.

Now, this does not mean they cannot enter onto private property to conduct a search of the land. As per the open fields doctrine they most certainly can search private property without a warrant even if they enter by trespass though the trespass may later be held as an offense committed by the officers. Open fields though are not a person’s home or a person's curtilage. Private property in such instances can include 'open fields', garages off of the curtilage, barns, out buildings and so forth. However, the property immediately around your home, which is used frequently by the homeowner or residents, are almost always considered curtilage. In such cases we are usually back at the warrant requirement.

Here is an example of one state's regulations on this: http://www.dec.ny.gov/regulations/58846.html. I am sure you can finmd them for your state. I would be very interested to see any state that considers it a legal right for their officers to enter a home with the intention of searching for evidence of a crime or for effecting an arrest absent a warrant or other special circumstances. Note I said for evidence of a crime, and did not say to conduct an inspection, in which case the officers alomst certainly need a warrant or consent and again I stress any consent given can be revoked at any time.

As for the explanation of the meaning of G-Dub, I suppose if I was a Game Warden and a Democrat, I might be offended what with the hatred of former president G. 'Dubya' Bush among many Democrats. The term seems rather harmless on its own but I imagine things would be much easier to understand in English for an old guy like me.


All the best,
Glenn B

hooligan1
August 15, 2010, 12:45 PM
Glenn nice reply, Please read this one 3CSR10-4.125 page # 7 Wildlife code Missouri.:rolleyes: I'm no lawyer, but it's really easy to understand.:)

Maligator
August 15, 2010, 01:26 PM
Hooligan, I can see why one might "read" the game laws that way. However, you must then look up the link which describes the way in which the law may be used. I have provided the link here.

http://www.house.mo.gov/content.aspx?info=/bills98/biltxt98/intro98/HB1407I.htm

It clearly articulates that no officer of the law may search your residence without a warrent.

beaver
August 15, 2010, 01:29 PM
The animals belonging to the state poses some interesting questions for example if the state owns the animals is not the state then responsible and negligent if they allow the animals to run free and damage private property. also does this ownership of the animals apply to a private pond where the landowner has purchased fish and stocked his own pond. I am not trying to troll or stir the pot just curious.

Glenn Bartley
August 15, 2010, 01:38 PM
Okay, I read the proposed amendment to the MO law. It still does not give a conservation officer the right to enter your home to carry out a search for evidence of a criminal offfense. Be very careful how you read it and how you interpret that law and then how it stands up or falls against constitutional law. I guarantee a constitutional challenge to a law allowing them to enter your home without a warrant, unless you consent, will be found unconstitutional if it reached the Supreme Court of the United States.

Think about it this way - it very specifically states that:

"Every person, business concern or organization possessing, taking,
transporting or using the wildlife or forestry resources of this
state in any manner shall permit any agent of the department or any
peace officer to inspect his/her permit(s), or temporary permit
authorization number(s), and picture identification; to inspect
and count any wildlife in his/her possession; and to inspect any
devices or facilities used in taking, attempting to take, possessing
or transporting wildlife, subject to the provisions of section
252.100, RSMo in order that such officer may ascertain whether
this Code or the statutes pertaining to wildlife or forestry are being
violated. No person, business concern or organization shall refuse
to permit such inspection, or interfere with any officer in such
inspection."

So what is a conservation officer comes into your home to make such an inspection and you have never taken game, never stored it, never had anything to do with it. A clear violation of this proposed law and also a clear violation of the 4th Amendment. This proposed law will not stand muster as written if it goes to the Supreme Court - note it says nothing about reasonable suspicion, or probable cause - it in essence says a person who has done X, Y or Z must allow this to happen. Good luck with this one in court MO.

Now, I realize the proposed law was back in 1999, so maybe you have some more recent court decisions up your sleeve, if you do then please feel free to amaze me that this country is allowing such less than constitutional behavior on the part of the state of MO.

All the best,
GB

hooligan1
August 15, 2010, 01:57 PM
Thanks fellas, I not only stand corrected, but EDUCATED also. I tried to find the law Maligator found and could not, sometimes I say what i'm thinking, and I should think about what I'm saying!!:eek: For one reason or another I thought it had been changed Only for Game Officers.

Smokey Joe
August 16, 2010, 01:05 PM
I must quibble here. The phrase animals belonging to the statehas been used. When I took Conservation Law in college (granted it was a while ago) I was taught in no uncertain terms that in America, the wildlife belongs to "we the people," for whom the state holds it in trust. This is in direct opposition to the situation in Europe, where all the game belonged to the King, and could be taken only at the King's sufferance. Even today in Europe, traditionally anyhow, if you legally hunt and kill a game animal, it then belongs to the landowner on whose land the game was taken, not to the hunter. (I plead complete ignorance of current European game laws.)

It gets awkward because the wildlife has this habit of crossing local, state, and national boundaries, let alone on & off my own acreage, but the state manages it--or tries to, with varying degrees of success--for all of us.

IT ISN'T THE STATE'S DEER. The state sets up rules under which I can "reduce it to possession," but until I do that (when the deer becomes my personal property) it's OUR deer, not the state's. Same goes for mice, woodchucks, warblers, largemouth bass, salamanders, and bald eagles.

hooligan1
August 16, 2010, 02:44 PM
Hey, M1garand 2371, before I got carried away with Search and Siezure laws, I failed to respond to your question regarding a GW walking up to your stand. I can't say that it has never happened although it's highly unlikely that they would walk up to you unless under emergency situation. They will meet up with you at your vehicle, and I know one that would wait for two days if he took a notion to talk to you. If there is bait in the woods, public property, they will know about it and be watching it. You can't worry about GW's walking into your stand site, (they don't want to get shot for one) but part of their job is actually to make you more successful:D Call and get to know your local Conservation Officers, hell you might really like them. PS they know good spots to hunt!!!:p I can ONLY speak for Missouri Game officers,In fact the best warden Missouri ever had was John Hoskins, and he retired this year as Director of Department of Conservation...Missouri will miss him.:)

bamaranger
August 17, 2010, 04:57 AM
AL has an "open for inspection clause" and it has always been applied to vehicles, game vests, live wells, coolers etc. I have never heard or seen it applied as a circumvent to the 4th amendment at a residence in this state.

One of the conditions is that the subject must be involved in the act of hunting, or minimally, it must be sufficiently articulated that the individual was enroute to or from a hunt.

Art Eatman
August 17, 2010, 08:50 AM
SmokeyJoe, "we the people" created government and delegated certain powers to it. One of those powers is the management of wildlife. In the sense of authority to manage, the practical result is "state ownership". Don't get hung up on semantics; it only leads to frustration and ulcers.

It is that management power from which game warden authority derives.

d94jonca
August 17, 2010, 11:13 AM
this is an interesting subject. without reasonable suspicion, a police officer cannot search a person walking down a public road. in most jurisdiction he cannot even frisk him or verify identity without consent.

so, just how is the law different if the person is walking in a public forest and the officer belongs to the DNR? is there a legal difference at all? or is the pivot point the fact that the person appears to be hunting?

it'd be interesting to refuse a check of bag/shotgun/shot just to find out. problem is i never run into the warden. plus, i kinda like the guy, would hate to ruin the relationship :)

jhgreasemonkey
August 17, 2010, 12:10 PM
I've wondered why it is legal for game wardens to randomly stop vehicles and demand to see your rifles to check if they are loaded. If your rifle is in your vehicle shouldn't they need a search warrant? Don't get me wrong I'm all for keeping your rifle unloaded while in your vehicle. But I don't like to get hassled by game wardens every time I hunt or fish. Game wardens seem to operate without any boundaries. Maby someone can explain it to me.

shortwave
August 17, 2010, 01:09 PM
I've wondered why it is legal for game wardens to randomly stop vehicles and demand to see rifles to check if they are loaded.

Simply put: Cause of poaching out of vehicle's caused a need for this.

teeroux
August 17, 2010, 01:39 PM
In the State of Ohio a game warden can come on your private property without permission due to the fact the animals you are hunting belong to the state.

Is that so. So I guess it would be well within reason one could bill the state for storage and maintainace of its property. They sure don't come around an feed the animals. They are fed and stored on/and with personaly owend property.

No sir GW I'm not hunting I'm evicting your property.:p

Art Eatman
August 17, 2010, 02:22 PM
Send the bill, but I don't recommend trying to hold your breath until the check arrives.

Regardless of how anybody interprets whatever, the whole Game Warden deal is a case of "This is the way it is; live with it." Or go to court and fight it and try for some change which suits your opinion--and good luck with that. :D

Enough...