Wes,

As I pointed out above, just because a state law gives the wardens "authority" to do anything does not make it legal or constitutional. Washington State still has a law on the books that makes it illegal for anyone on the basis of race (read that as "Indian") to not follow the exact same fishing regulations as members of another race (read that as non-Indian). The fact that it's there does not make it legal or enforceable.

To be constitutional, there must be some nexus between the search and the reason for it. Also, I did not intend anything above to state that "pot" (or anything else) would be suppressed because it's not fishing gear. I said it would be supressed if it was found in a film canister when the cop was searching for a fish. If a bag of pot was in the cooler, which is where a fish could be found, then you're busted.

Also, I still think this is a worthwhile topic that hasn't necessarily oustayed its welcome. Thanks for getting it started and keeping it going.

Fish on...

Todd.

P.S. I'm an attorney now, and I used to be an Assistant Attorney General, and represented the WDFW. Enforcement was one of my primary clients, and I wrote legal opinions on this very subject for our enforcement officers.

When your rights are pushed so far as they take advantage my rights to participate equally in a fishery then I expect that our game enforcement will keep the playing field even to provide equal opportunity. I expect that your/my fishing gear,ice chest, boat, and whatever got us there will be "inspected" subject to the circumstances presented to the game cop. If that inspection is met with non-cooperation, attitude or paranoia then I would expect the inspection to deepen to the fullest interpretation of the law. I choose to cooperate fully and get back to fishing. That does not make me un-American or unappreciative of "our" constitutional rights. If you don't want to abide by game regs which include inspection....don't fish or hunt.

DOG FISH, You made the statement "These are all laws we must abide by, {if you don't like it find another hobby"} This is what this topic is about. Which laws, and WHO must abide by them. We, as TAX paying sportsmen must and also the game wardens who work for Us, {we pay their salaries} must also abide by them. The on going subject is about "when do they over step the law and violate your Constitional Rights in searching your boat? TODD, I'm am so glad you are on this forum, you know the law very well and have continued to answer our many questions. Myself, even after going through the academy and 6 years of law enforcement I admit it, I don't know everything about the law, I'm still learning, so how can game wardens know it all? So why would some of you take for granted they do? Remember, there is a polite, but firm way to say no to an "Illegal Search" {If you have nothing to hide, and I hope you all don't} You say, "No, you don't have any probable cause to search my boat because I have nothing suspicious to make you believe I've done anything wrong, so you would only be wasting both of our time." I would not be offended by this statement nor should another human being. He will not "Make UP" any "Probable Cause" It's not worth losing his job over just to look through people's personal things. I have seen fellow officers "Let Go" because of too many complaints about them over stepping the law, by Tax Paying Citizens, which you are. You do what you want but I'm not going to give up my Constitional Rights for no one, not even for a few minutes. I'll give up my hunting and fishing rights before I'll give up my Constitional Rights.

Ok, so I'm new to this site, but not new to fishing or the internet. A friend e-mailed this to me and asked what I thought of this thread. Here is the drill, I USED to be an Oregon State Trooper and as I'm sure most everyone who would be interested in this stuff already knows that OSP is charged with the enforcement of all fish and game laws I do not condone, nor advocate violating any laws. In fact, I will be more than willing to report and go on record and even testify in court if necessary when I observe not only a fish or game violation, but any violation of law. However, I feel very strongly just because one elects to hunt or fish then he (or she) should not give up any rights. After all, didn’t we have a revolution to get away from to much government intrusion?

Let me start off with just being on the water with rod in hand or in the field DOES NOT give the police a right to stop and/or detain you because there is not probable cause (PC) that you did anything illegal, and the police need to have PC in order for them to stop you. (The police can’t arbitraily stop you driving down the road just to check your driver’s license can they?) True, there is a law still on the books that they will cite that says in effect they do have the authority to stop and check your license, catch or kill, but it is unconsitutional. The OSP knows this as well as every district attorney (DA) in the state and this is why it is still on the books. They do not want it challenged, which is why the DA if presented with a “shakey search” on constitutional grounds will in every case I have seen drop the case. However, the Trooper has been trained to get the hunter/fisherman to consent to the check. Absense of consent and/or PC the Trooper is trained to back off and if he believes there is anything worth pursuing then to come at it at another angle.

So, here’s what to do if it’s high slack tide and there are folks around you fighting fish and the police pull up alongside your boat and asks if you’ve done any good. You say (very politely) something to the effect, “Sir, am I doing anything wrong?” When he replies no then you politely say, “Then no you cannot check my license, catch, or boat unless you have articulable probable cause to detain me and conduct a search of my person and/or boat.” And add, “You just said I wasn’t doing anything wrong. So please, with all due respect, leave me alone so I can pursue the legal activities I was engaged in.” That will probably throw him back in his boots and if he doesn’t back off (like he should) and comes back citing the above mentioned law then tell him you will cooperate, however you have not consented to anything and are only doing so under protest as no law can be written that allows any government entity to violate the US Constitution and in this case the forth amendment.

There are different kinds of searches but I will save that for another post (if anyone is interested) because this is a pretty long post about what I think is a very simple subject. Just keep in mind that simply being on the water is not probable cause that you did anything wrong so do not give up your rights!

Kent we 'jus settle 'dis ova a pint?!!!

Hey Kickmeter, I kick 'em too when they eat my quarter and don't give me the clock. And thanks for the printed info - I have printed a copy of it for my wallet. I knew that info, but now I don't have to waist my breath, I can just hand a copy of that one paragraph (without your moniker on it of course).

Hey C&D, let's share a pint while nate fishing in a few weeks up your way! And we can argue about the constitution too - not.

Hi G-man,

Did the LE gig myself for a while, Whatcom SO. Yeah, I know enough of the law to get in trouble. Do you have to consent to a breathalizer or BAC test when pulled over for suspicion of DUI/DWI? No, but when you get your license, you acknowledge that failure to do so has consequences. Basically loss of your license for a specified period of time.

It is exactly the same thing with hunting and fishing. You agree to the inspection of your equipment to make sure you are in compliance. It is called "implied consent". Equipment includes everything you leave home with used in the pursuit of fish or game, everything. People strip eggs from hens and toss the fish, those eggs can fit just about anywhere. "Towel fish" can be stowed any number of places. That is why they can inpect AND search. A third pheasant can be stuffed in anywhere, etc.

There has yet to be a successful challenge as to the constituionality of this RCW, because it is still in place. If you make a stink, they dig further. If you protest and become belligerant, they'll take more of your valuable fishing time.

The basic stop takes the same time as an FIR, you know, detain and stop for "reasonable" period of time. Reasonable can vary depending upon the evasiveness of the subject, furtive movements, lack of cooperativeness, etc.

Again, my suggestion would be to say "hi", stay right there and take care of your gear, get info from them, thank 'em for doing a hard job, and say "bye". I have never had a stop last more than 5 minutes. I have yet to have a bad experience.

I'm not saying that anyone else here "looks like a meth head or a dirt bag", but if you do look like this, you might just draw a little more attention. Folks who don't take care of themselves, their gear, their kids, etc., might not care too much about following all of the rules. It was one constant that we would follow to find someone with an outstanding warrant on a slow night. It worked about 90% of the time.

Andy

Dogfish

There has been a lot of misinformation on this subject about what you are legally responsible to do if a game warden wants to search all your equipment, etc.

Some bb members have said that just because you have signed your fishing license, that it makes it legal for the game warden to check everything. Signing your license does not give them the authority to search your boat, gear, etc. The fact is; the only thing that you have agreed to do is clearly stated. This is what we have "agreed too"; "I certify under penalty of law that the information on this license is true and I meet the requirements for these licenses. I agree to show all licenses, transport tags, and catch card, my driver's license and any fish and game to a Department of Fish and Game employee when requested"

Nowhere does it say that we have agreed to allow a search of your personal property! I just wanted to set the record straight because some others have assumed that by signing your game license, you have also signed away your rights of rejecting an illegal search.

Cowlitzfisherman

Is the taste of the bait worth the sting of the hook????

hey kickmeter do you work for the phone co now?
later
kris
Eugene or

Hi Bob,

I like debating with you.

I agree with most of what you say, but you and a lot of others omit the sections that pertain to exactly what everyone is discussing.

RCW 77.15.080 PLAINLY states that officers have the authority to....
(a) Temporarily stop you to inspect licenses, etc.
(b) Inspect any game in your possession.
(c) INSPECT THE EQUIPMET BEING USED, TO INSURE COMPLIANCE WITH GAME LAWS, etc.

Equipment/gear boils down to anything used to get to or from your chosen activity (car/truck), boat, poles, rods, coolers, etc.

RCW 77.15.470 goes on to state
(c) Produce for inspection upon request by a F&W officer:
(i) Hunting or fishing EQUIPMENT (this includes the boat and truck);
(ii) seaweed, fish, shellfish, or wildlife; or
(iii) licences, permits, tags, stamps, or catch record cards .......

FAILURE TO DO SO IS A GROSS MISDEMEANOR with the max penalty of 1 YEAR IN JAIL AND A $5000 FINE!

It does not give them the right to tear up your floorboards to look for dope, or rip out your fuel tank and cut it open.

The wording on your license give them implied consent for the inspection of tags, licenses, and game. The RCW's go on to include equipment. If they had to put EVERY RCW in the license, then your license would be a 5x9" book 3" thick.

To quote my favorite line from Dragnet, "Ignorance of the law is no excuse."

I am not saying that anyone is ignorant, but people are omitting specific parts of the written RCW's, including you. Just because I don't agree with the speed limt on a given road doesn't mean that I don't have to obey it, or that there aren't penalties if I don't follow it.

These laws are VERY PLAINLY STATED and are available for anyone to read, so before you refuse to submit to an inspection, think VERY CAREFULLY. THERE ARE CONSEQUENCES. THERE IS NO GREY AREA. Unless, of course, you have some spare time and cash.

Say "Hi", move the rods, say "Bye", and you'll have a nice day. Refuse and you will definitely have a bad day. You reap what you sow.

Here endeth the sermon.

Andy

Hey Dogfish,

It would appear the same type of law exists in WA as in OR. I can guarantee that the police up there still need to have probable cause to stop and detain you against your will. That is, even if they observed you land a fish the government is STILL under the burden of showing that more likely than not that fish or methods used to catch that fish are “on their face” (prima facie) illegal and warrants additional investigation. No government entity can act in such a way that waters down or weakens the constitution. But in this case both OR and WA both have these laws on the books that the government knows are illegal.

However, because these laws are “unenforceable“ (that is they wouldn’t stand up to court scrutiny) does not make them worthless. It makes it easier for government to keep the people who don’t know any better in line. It makes them think that if they are merely contacted by law enforcement then that’s the first thing they must show the officer, their license and/or tag and catch. I can’t make it any more clear than to ask the officer what PC he has. If he replies that he has reports of a boat matching your description was seen angling in an illegal manner then he has PC to stop you. Cooperate with the cops but DO NOT consent to a search of anything, tags, license or catch and make that understood by the officer. On the other hand if he says it’s just “routine” then politely tell him you’re not doing anything wrong and to leave you alone. To go even one more step, as I alluded to before I’d be the first to report a violation, and even go on record but I’m still not giving up my rights.

Another thing, (this is for everyone) if you do see what appears to you as a violation, be a good witness and note as much detail as possible and above all do not be afraid to report it nor be afraid to go on record. I actually enjoyed go to court and testifying. I found it quite interesting. But more to the point, an anonymous tip is nearly worthless. Not to say the police won’t act on it, but when there is a NAMED complainant they stand on much more firm legal ground when contacting a suspect. We as citizens (and fisher-people) need to take the responsibility of policing ourselves more than has been my experience.

Andy,

It's been awhile since we had a good debate! It's good that people can openly discuss their different point of views without getting bent out of shape at each other when they don't quite agree.

With that being said, I will reinstate what I believe would be the final line if a person took this issue to court. I also believe this issue specifically applies to the RCW's that you have quoted and may not apply to other situations. The RCW's that have been quoted in this thread apply to our fishing rights. Specifically (and for good reason) they have chosen to use the word "inspect". If our legislators had intended otherwise, they would have used the appropriate word. That word would have been "search". That's why our legal system calls it a "search warrant" and not an "inspection warrant" It's a lot more then just an inspection!

The two words have some similar meaning, but also have specific meanings when used in defining law. I am not one of those people that wave my fourth rights every time an officer wants to check or "inspect" my possessions. I have never taken one illegal drug; don't smoke dope, or any other stuff. I do like my cocktails at home, at night (not in my car). I don't even mind it if an officer pulls me over and gives me a sobriety test.

But that's where I draw the line! If he or any other officer wants to start going through my stuff on their "Easter egg hunt", thinking that if he looks hard enough that he will eventually find something, he better damn well know that he will see me in court! I know that some of them take a lot of crap from people, but a lot of that comes from the way they approach people.

I personally think that if a game warden wants to "inspect" my "equipment" it's OK, but when the "inspections" stops and he starts advancing his "inspection" into what now would clearly become a "search mod" the new rules starts and it becomes an all new game (and game rules). My golden rule is a simple one. No reason, No search! The reason may not even have to be a "good one" that he gives. That means that the officers must first make it perfectly clear and plain why is going past the "inspection" stage into the next stage, which is clearly a "searching" stage.

I will be the first one to agree; don't try to physically resist his action. That will get you no where quick (well maybe in jail). That's what our courts are for! Like you and others have already stated, be polite, but be firm. Ask the officer what is his reason is for the "search". He must give you a reason, and he knows it! The reason, if not valid, will come back and bite him in the court home. Build your case by the facts, and those facts will prevail.

Remember, the only thing that we have agreed to do was to allow the Fish and Game "employee" to check our fish, game and equipment. We did not agree to any "searches". Don't you think that it was a little strange that they used the word "employee" instead of the word "officer"? Does that mean that any WDFW "employee" (fish counter, clerk, etc.) has the right to check your "equipment, car, truck etc?


Andy, it's kind of like what happened on the "Wallace Gravel Pit" issue. When the officer overstepped his bounties, I filed a complaint to his superiors and that officer will not make that same mistake a second time. I didn't argue with him at the time, I just got even through our legal system!


That's my opinion on this issue.

Cowlitzfisherman

Is the taste of the bait worth the sting of the hook????

[ 01-06-2002: Message edited by: cowlitzfisherman ]

Kickmeter, Bob,

There is nothing illegal about it. Remember "reasonable suspicion"? This is similar, but a combo of that and implied consent, but with not so stringent requirements. Basically the laws state that WDFW officers have the authority to temporarily stop/detain you. Just as in reasonable suspicion. They do need to have some articuable (sp?) facts, ie; your are fishing/hunting, you have equipment for such, or you may be on your way from such activity, etc. That is all they need for the stop. Plain and simple. There doesn't have to be the belief of an infraction.

The implied consent comes to the inpection of your equipment (includes cooler, truck, and boat), etc. If you refuse, then you just committed a Gross Misdemeanor, and then because of the commission of a crime, the immediate area and equipment becomes SUBJECT TO A SEARCH FOR FURTHER EVIDENCE OF SUCH AN INFRACTION. You are now not free to leave. A five minute conversation becomes an hour break with your hands clasped behind your back while seated on the back of the game agents truck while he or she searches EVERY inch of your truck, your boat, etc.

The issue about the wording on your license is only the tip of the iceberg. Remember the 5"x9" book?

I double dog dare ( ) anyone to head on down to their local WDFW hotspot where checks are a given and refuse, verbally. Let us know what happens.

Have a good day.

Andy

Andy, round two!


I disagree with your statement: "then you just committed a Gross Misdemeanor, and then because of the commission of a crime, the immediate area and equipment becomes SUBJECT TO A SEARCH FOR FURTHER EVIDENCE OF SUCH AN INFRACTION.

Andy, that sounds to "copy" for most! Bb members!

Does the word "false arrest" come to mind? Before the officer can arrest you, he must first read you your rights, not 2 hours later, after he's done his search and found nothing! What would his charge be? Verbal refusal? Denying verbal permission? Refusing them your permission to do a search is not a crime. Physically "resisting the search" MAY become a crime, IF you attempt to stop the search, then and only then, could they possibly arrest you. It is NEVER a crime to verbally protest any search. If I am wrong, please quote to me the RCW or WAC that says that it is.

Example; lets say your neighbor calls the game warden on you because they believed that you have caught way to many fish because they saw you carrying way to many fish into your home last week. They also think that they (the fish) had too many fins attached to some of them. You have just gotten home today from fishing and you still have your rods in your truck. Today was a bad fishing day, and you didn't even have a bite! You are washing out your boat when the officer(s) pulls up into your driveway and they see that you are you cleaning up the "crime scene". They can see a fishing rod hanging up on your trucks gun racks .They ask you if you have been fishing and you say "yes". They now want to "inspect" your truck and boat to see if you have any fish hidden. You tell them "No". Not finding any hidden fish in your truck or boat, they now want to "search" your house and see if you have any fish hidden there (freezer, refrigerators, storage boxes, or what ever. Does that officer(s) now have the right to "search" your house, your other car, or your garage or whatever, when there has been no crime committed other than what has only been alleged reported against you? I don't think so! Does it require a "search warrant" Most definitely so! What's the difference between that and when a game warden says that someone reported to him that you may have hidden fish in your truck? Is that a crime?

You tell the officer, "No"; you may not search my house, my car, or my garage without a "search warrant". Does that mean that you have now "…just committed a Gross Misdemeanor, and then because of the commission of a crime, the immediate area and equipment becomes SUBJECT TO A SEARCH FOR FURTHER EVIDENCE OF SUCH AN INFRACTION and the officer can now enter your house, car, or garage and perform his search. I don't think so!!

Does this mean that the officer now has "reasonable suspicion" and cause? I don't think so! That kind of "reasonable suspicion" will take a search warrant ordered from a judge, not and officer. Look at what happen in the OJ Simpson case; Hell, their was a blood trail leading right up the driveway to his front door, but they still needed a search warrant to get past that front door! Why would a game officer hand cuff you if you just told him "no" and you did not physically resist the search? He has no more or no less authority then any other law enforcement officer. Like I said, tell him that he does not have your permission to search your car, or what ever, and do no more then that! Do not resist his search, just file your complain to his superiors and let the courts decide who is right. I for one would like to hear what an attorney thinks.

That's just my opinion! Let's hear round 3

(Andy, do you want to bet who would would win in court with a good attorney ?)


Cowlitzfisherman

Is the taste of the bait worth the sting of the hook????

Cowlitzfisherman has hit the nail on the head. I have reasonable cause to believe we all carry our fishing license with us into our homes,if we follow the reasoning of some of the posts on this subject the police can enter our homes and conduct a search without a warrant. An attorney who represented Washington State,an ex OSP trooper,people whose was job was to interpret and enforce the law have explained very clearly we do not have submit to a search of our vehicles or boats. If a search is forced on an individual without consent or a warrant,the courts will follow the precedents of illegaly obtaining evidence. YES I have refused a safety inspection by a deputy in a parking lot at Odell lake,it was not a pleasant experience,but I knew I was right. The deputy backed off and returned later when we both calmed down,I did allow the inspection after I launched, he inspected from the dock and did not try to board. This may sound like splitting hairs but we both knew proper procedures.

Cowlitzfisherman,

You are pretty much right on the money except the officer does not need to read you your rights” to make the arrest valid. The only time Miranda (which is what I believe you are referring to) comes into play is when your are IN CUSTODY, even for an unrelated charge (i.e. handcuffed or in jail) and if the officer wants to ask incriminating questions to use against you in court.

I arrested a lot of people based on my own personal investigation that I did not advise of their Miranda rights. Drunk drivers are the best example that comes to mind, because when the time came for me to handcuff the drunk I already asked all the questions I needed answered (and the poor drunk had more than likely sunk himself) so there were no additional questions to ask. Which leads to implied consent that Dogfish has referred to.

The legislature knows that suspects loose quite a few rights after being ARRESTED and that government needs a tool to work against law breakers so the came up with the implied consent law and implied consent is nothing more than you have implied that you are willing to submit to a breath test after being arrested for drunk driving. And you make this implication simply by driving. The penalties for refusal of the breath test are nothing more than an administrative suspension. A person commits no crime if he/she refuses the breath test. Or any questions of the officer for that matter. But I felt it made the case easier to prove to a jury when I had a refusal rather than an outright failure (having more than 0.08% blood alcohol), but that is a different story for another time. More to the point, I know of no “implied consent” pertaining to angling or hunting laws, at least here in Oregon. Again, it is not a citizens responsibility to prove that he/she is legal. Instead it is the government’s responsibility to prove that he/she isn’t. Remember, innocent until proven guilty.

And Dogfish,

I hope you don’t get pi$$ed at me, but any officer needs to have not probable cause to detain/stop you against your will. There have been numerous court cases (on the state AND federal level) that have said such. Absence of anything else, simply being on the water with rod in hand or in the field with rifle in hand is not enough to effect a stop, because there is no indication that you have done anything wrong.

As for inspection versus search. There is such a thing as an administrative inspection. Boiled down all that is is the government making sure you had what you needed to conduct your business reasonably safe and legal. And the penalties for refusal or failure of the inspection is the government withholding a permit or license or a fine. No jail time or fines for an individual. The business could be fined for not being in compliance, but the individual cannot nor is there a possibility of jail for him/her. I think we all have a handle on what a search is so I won’t touch in it any further.

In closing, it is not my intention to give instruction on how to skirt the law, but I would like to let people know about their rights.

Kickmeter is right, there is a big differance between "Inspection" and "Search" When I "Inspect" your driver's license and smell Pot comming out of your window, then I can move onto the next step the "Search" because I now have "Probable Cause". {and I know what what dope smells like because I smoked alot of it in high school before I worked Narcotics. "Only in America"!! }

Kickmeter, I didn't realize that gammies and regulars were operating out of the same book. That was one of my questions. Thanks for that infomation.

Are you a pothead, focker?

There is no legal term "reasonable cause". There is "reasonable suspicion" ,(RS), which pertains to the belief of an officer of the law that a crime may have been committed, is about to be committed, or some other "articuable facts" giving the officer reason for a detain and stop, example being some guy in a dark alley behind a business at night.

Probable cause, (PC), is where there are facts and circumstances that support an arrest, example; eyewitness testimony, physical evidence, etc.

Implied consent is where you agree to something automatically when you get a license.

Kickmeter,

Officers only need RS for a detain and stop, not PC. State a legal precendent to prove me wrong.

The implied consent as it relates to hunting and fishing comes partly from signing your license, and also from RCW 77.15.470. Basically they say that you will submit to an inpection of your equipment. How do you inpect a cooler? Look inside.

Bob,

Regardless if it sounds to "copy", those are the rules. It opens the door for further scrutiny.
Let them look in you cooler, at your boat, check you gear, etc. You might just be sorry if you don't. I don't hide anything, so I have no worries. If I screw up, I take it like a man and that has gotten me out of more infractions (traffic) than excuses, defiance, or beligerence.

G-man,

WDFW are fully commission officers and can enforce all laws enacted in the state or Washington including Titles 9, 9A, 46 (traffic), etc., along with enforcing dept. of health regs relating to aquaculture.

Andy

P.S. Now if they want to inspect the boat that you use as your residence that opens up a whole other can o' worms.