I get a lot of questions about Fish & Game wardens. If you've ever dealt with officers from the California Department of Fish & Wildlife, you probably know that these guys can be nosy. They like to board boats and search coolers. Maybe they've knocked on your door and asked to examine the carcass or antlers of a deer you recently shot. Sometimes, these compliance checks feel a little intrusive and intimidating. Today's post is specifically about the special rules that apply in "administrative searches" conducted by Fish & Game wardens.
First, though, I should acknowledge that the California Department of Fish & Game recently changed their official name to the "Department of Fish & Wildlife". The change reflects the fact that their agency is responsible for enforcing regulations regarding a variety of wildlife, including animals that are classified as "non-game" species. "Fish & Wildlife" just makes more sense. Some of us are still stuck in the habit of using the old name, though. I understand that the agency is called the "DFW", but old habits are hard to break.
The 4th Amendment to the US Constitution assures the right to be free from unreasonable searches and seizures. It does not define the word, "unreasonable", though. Courts have ruled that the reasonableness of a search depends on the specific circumstances. To determine whether or not a search is unduly intrusive, judges balance the interests of the government on one hand, against the individual's interest in privacy on the other. That includes taking into consideration the place searched and the individual's expectation of privacy in that place.
For example, individuals have a high expectation of privacy in their own homes. Consequently, police cannot (usually) barge into a private house and demand to search the place unless they have a warrant, signed by a judge. People have a lower expectation of privacy in their cars, though. Since cars are already subject to heavy state regulations, courts are more likely to approve of warrantless vehicle searches, because the state vs. privacy balance often tips in favor of the police.
When someone voluntarily engages in any activity that is highly regulated by the state (like driving a car, fishing or hunting), they also voluntarily agree to comply with all the relevant laws and regulations. Courts have consistently found that fishers and hunters have a lower expectation of privacy because they choose to participate in a sport that comes with a lot of rules. At the same time, the state has a high interest in performing inspections of anyone who fishes or hunts. Of course, all this means that DFW wardens generally have wide latitude to conduct "administrative searches" of anyone who fishes or hunts in the state.
If there was still any question, section 1006 of the California Fish & Game Code explicitly states that the department may inspect "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," as well as, "All boxes and packages containing birds, mammals, fish, reptiles, or amphibia which are held for transportation by any common carrier." Section 2012 of the code also specifically says that any hunting or fishing gear must be presented for inspection upon demand of any DFW warden.
Those laws give Fish & Game wardens virtually unlimited power to search or inspect anything used to hunt, fish, or to store meat. The only exceptions are "dwellings" and the clothing actually worn by the subject at the time of the search. Wardens can knock on your door and demand to search your truck and any outbuildings on your property (detached garages, sheds, barns, etc.). They can demand to inspect your rifles and anything else that they're curious about, but you do not have to let them into your house.
Even though wardens may generally conduct administrative searches without any warrant or probable cause, courts have also ruled that searches must be conducted in a "reasonable" manner. Again, that word isn't clearly defined, but judges have thrown out cases when wardens used excessive force, for example.
If you or a loved one has questions about dealing with the California Department of Fish & Wildlife, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
