ORDER RE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
On May 18, 2010, the court held an evidentiary hearing on the motion to suppress evidence filed in the above-entitled action on behalf of defendant Jacob Azevedo. Bob Sweeten, Certified Law Student, appeared on behalf of the United States, Jared Stephenson, Certified Law Student, of the Federal Defender's Office appeared on behalf of the defendant.
Following the evidentiary hearing, the court requested supplemental briefing with respect to the government's argument that the defendant had given implied consent to the search of his belongings by entering onto a National Wildlife Refuge to hunt. On June 22, 2010, the court heard further oral argument with respect to the motion. For the reasons set forth below, defendant Azevedo's motion to suppress evidence will be granted.
Defendant Jacob Azevedo is charged in this misdemeanor action with possession of marijuana on a national wildlife refuge in violation of 50 C.F.R. § 27.82(b). The charge stems from the November 22, 2009, search of the defendant's belongings by Refuge Officer Gregory Burgess at the Colusa Wildlife Refuge. The facts surrounding the incident are as follows.
On the day in question Officer Burgess and California Game Warden Nate Stebbins were carrying out "hunter compliance checks*fn2 " from 4:30 a.m. to 2:00 p.m. to ensure that hunters entering the field at the Colusa Wildlife Refuge were in compliance with the law. Just before 6:00 a.m. defendant Azevedo and his hunting companion, Nigel Smith, were on their way to the pond where they were assigned to hunt that day when they encountered Game Warden Stebbins. Stebbins advised the two that they were on a county road which was not the proper route by which to access the field. Shortly thereafter Refuge Officer Burgess joined and requested Azevedo's hunting license. Azevedo complied. Officer Burgess kept the license and stated that the officers were conducting hunter compliance checks and would need to pat down Azevedo.*fn3 Azevedo responded by putting his backpack and several items from his pockets, including a hard-pack of cigarettes, on the ground in front of him. After patting down Azevedo, Burgess then opened the cigarette pack and discovered a half-burned marijuana cigarette about which he questioned Azevedo. Burgess then searched Azevedo's backpack and discovered an extra shell.*fn4 Burgess warned Azevedo about possessing more shells then legally allowed, cited him for the violation of 50 C.F.R. § 27.82(b)(2), returned his hunting license and ejected Azevedo and Smith from the refuge.
The defendant moves to suppress all evidence seized, including any statements made, on the grounds that the warrantless search of his belongings was an unreasonable, non-consensual search.
In opposing the motion to suppress, the government initially took the positions that Azevedo had consented to each aspect of the search, including that of the pack of cigarettes. In supplemental briefing, submitted after the court indicated that it would find a lack of affirmative consent on the part of the defendant, the government argues that defendant Azevedo's consent to the search should be implied from: (1) his failure to object to Officer Burgess's actions; or (2) from his entry on to the National Wildlife Refuge to engage in the heavily regulated activity of hunting.
For the reasons set forth below, the court concludes that the government has not established implied consent justifying the warrantless search under the facts of this case.
Of course, it is the prosecution that bears the burden of justifying a warrantless search. United States v. Davis, 332 F.3d 1163, 1168, n.3 (9th Cir. 2003); United States v. Johnson, 936 F.2d 1082, 1084 (9th Cir. 1991). Moreover, "[t]he existence of consent to search is not lightly to be inferred, and is a question of fact to be determined from the totality of the circumstances." United States v. Patacchia, 602 F.2d 218, 219 (9th Cir. 1979) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973)).
At the outset, the court rejects the governments argument that Azevedo's failure to object to the pat-down and search of his belongings somehow inferred his consent to the search. Under the Fourth Amendment, "the government may not show consent . . . from a defendant's failure to object[.]" Lopez v. Mukasey, 536 F.3d 1012, 1017 (9th Cir. 2008)(quoting United States v. Shaibu, 920 F.2d 1423, 1427 (9th Cir. 1990)); United States v. Albrektsen, 151 F.3d 951, 955 (9th Cir. 1998) (evidence that a suspect moved aside to avoid contact with entering officers insufficient to establish implied consent); see also Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (voluntary consent requires more than the mere acquiescence to lawful authority). Here, the testimony establishes that Azevedo did no more than to acquiescence to a display of authority by a law enforcement officer. He did not consent to the search of his belongings either affirmatively nor by his actions in response to the direction of Officer Burgess.
Resolution of this motion therefore turns on whether by his entry onto the National Wildlife Refuge to hunt, Azevedo thereby gave his implied consent to a search for purposes of enforcing all applicable laws and regulations. The government argues that hunting in general is a heavily regulated activity and that all hunters are aware of compliance checks. The government also argues that various provisions of Title 50 C.F.R., state law, brochures, training booklets, and the "Harvest Record" permit issued to those hunting at the Colusa National Wildlife Refuge advise hunters of what they may and may not do (including that they ay not possess controlled substances) and that they may be subject to ejection if they violate those provisions. Thus, the government concludes, just like an airline passenger who elects to fly thereby subject himself to search upon entering the security checkpoint outside the gate area, defendant AZEVEDO had two options: enter the refuge and subject himself to possible search or not hunt. The government's argument misses the mark and is unpersuasive.
Cases such as those relied upon by the government all involve instances where individuals are warned or put on notice in some way that if they elect to proceed, they will be subject to search.*fn5 See United States v. Aukai, 440 F.3d 1168, 1180 (9th Cir. 2006)(implied consent to secondary search by walking through magnetometer at airport security checkpoint in part because "[t]here is no doubt that Aukai was on notice that his person could be searched"); Morgan v. United States, 323 F.3d 776, 778 (9th Cir. 2003)(noting that military bases warn of the possibility of search as a condition of entry which may result in implied consent to search by those seeking entry and remanding for a determination of whether implied consent was present); United States v. Miner, 484 F.2d 1075, 1076 (9th Cir. 1973)(implied consent to search by one boarding a plane who admitted he had seen signs warning that all passengers and their baggage were subject to search and that he knew what the signs meant); see also United States v. Ellis, 547 F.2d 863, 866 (5th Cir. 1977) (consent to search found because defendant's entry ...