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The People v. Bouhn Maikhio

June 20, 2011


Ct.App. 4/1 D055068 San Diego County Super. Ct. No. M031897

The opinion of the court was delivered by: Cantil-sakauye, C. J.

To protect and preserve the wildlife of the state for current and future generations, California -- like other states -- has adopted numerous statutes and regulations governing the conduct of persons who fish or hunt in this state, prescribing, for example, the places where fishing or hunting may occur, the seasons in which particular species may be taken, the number and size of different types of fish or animals that may be caught or shot, the means by which particular types of wildlife may be taken, and the licenses, permits, and records required for different fishing and hunting activities. To make possible the effective enforcement of these regulations, California law has long required anyone who chooses to fish or hunt in this state to exhibit or display, upon demand of any official authorized by California law to enforce the fish and game statutes and regulations (1) any required fishing or hunting license, (2) all fish or game the angler or hunter has caught or taken, and (3) any equipment capable of being used to take such fish or game.

In the present case, a fish and game warden (hereafter game warden), surveilling a public fishing pier from a distance with a spotting telescope, observed defendant Bouhn Maikhio fishing with a handline from the pier and catching either a lobster or fish that defendant placed in a small black bag by his side. Although from his position the game warden could not identify the item defendant had caught and placed in the bag, the warden was aware that, although it was unlawful to do so, such handlines were often utilized in that location to catch spiny lobsters, which were out of season at that time. After the game warden saw defendant leave the pier with the black bag, enter a car in the pier parking lot, and drive away, the warden stopped defendant's car a few blocks from the pier, introduced himself as a game warden, and asked defendant if he had any fish or lobsters in his car. When defendant denied having any, the game warden looked in the car, saw the black bag on the floor of the rear passenger area, opened the bag and discovered a spiny lobster. Upon questioning, defendant admitted taking the lobster and said he had been "stupid" to do so. The game warden issued a citation to defendant and thereafter returned the lobster to the ocean.

When misdemeanor charges were subsequently brought against defendant based upon this incident, defendant filed a motion to suppress the evidence obtained by the game warden on the ground that the warden had engaged in an unconstitutional search and seizure in stopping defendant's car under the circumstances described above. The trial court agreed with defendant's contention, suppressed the evidence, and dismissed the charges. The appellate division of the superior court reversed the trial court's ruling, but the Court of Appeal, after accepting transfer of the appeal, affirmed the trial court's dismissal of the charges in a divided decision. The majority opinion in the Court of Appeal concluded (1) that the game warden was permitted to stop defendant's car only if the warden was aware of facts that provided reasonable suspicion that defendant had violated an applicable statute or regulation, and (2) that the facts in this case did not provide such reasonable suspicion because the game warden was not able to see what item defendant had caught with the handline and defendant could lawfully have used a handline to catch some species of fish other than spiny lobster. The dissenting Court of Appeal justice concluded that the game warden's stop of defendant's vehicle was lawful and was fully supported by California precedent.

On the People's petition, we granted review to determine whether a game warden who reasonably believes that a person has recently been fishing or hunting, but lacks reasonable suspicion that the person has violated an applicable fish or game statute or regulation, may stop a vehicle in which the person is riding to demand the person display all fish or game the person has caught or taken.

For the reasons discussed below, we conclude that the Court of Appeal erred in determining that, under the applicable California statutes and the Fourth Amendment of the United States Constitution, a game warden may make such a vehicle stop only if the warden is aware of facts that give rise to a reasonable suspicion that the angler or hunter has violated a fish and game statute or regulation. As we shall explain, California authority has interpreted the relevant statute as authorizing a stop of a vehicle occupied by an angler or hunter for such purposes, and the United States Supreme Court has held in a number of decisions that an administrative search or seizure may be conducted, consistent with the Fourth Amendment, in the absence of reasonable suspicion that a violation of a statute or administrative regulation has occurred. Such administrative searches and seizures are permissible when (1) the governmental action serves a special and important state need and interest distinct from the state's ordinary interest in enforcing the criminal law, (2) the administrative rules or regulations that are required to achieve the state's interest are of such a nature that limiting inspection only to those persons reasonably suspected of committing a violation would seriously undermine the state's ability to meet its special need, and (3) the impingement upon the reasonable expectation of privacy of those subjected to the procedure is sufficiently limited such that the state's need to utilize the procedure outweighs the invasion which the search entails, thus rendering the procedure reasonable for purposes of the Fourth Amendment.

Applying these principles in the present context, we conclude that (1) the state's interest in protecting and preserving the wildlife of this state for the benefit of current and future generations of California residents and visitors constitutes a special and important state interest and need that is distinct from the state's ordinary interest in crime control, (2) the administrative regulations that are required to serve this interest -- involving, for example, limits on the number, size, and species of fish or game that may be taken at different times and in different locations -- are of such a nature that they would be impossible to adequately enforce if a game warden could stop, and could demand to be shown all fish or game that have been caught by, only those anglers and hunters who the warden reasonably suspected had violated the fish and game laws, and (3) the impingement upon privacy engendered by such a stop and demand procedure is minimal because (i) the stops are limited to those persons who have voluntarily chosen to engage in the heavily regulated activity of fishing or hunting and as a consequence have a diminished reasonable expectation of privacy with regard to items directly related to such activity, and (ii) the required demands are limited to items directly related to fishing and hunting and do not require disclosure of intimate or confidential matters as to which such persons retain a substantial privacy interest.

Even if we assume that a game warden's stop of a car in which an angler or hunter is riding entails a greater intrusion on privacy than a stop of an angler or hunter who is on foot, we conclude that when, as in this case, the vehicle stop is made reasonably close in time and location to the fishing or hunting activity, the encroachment upon an angler's or hunter's reasonable expectation of privacy resulting from a brief vehicle stop and demand is nonetheless rather modest, and no more intrusive than other actions by game wardens that have been upheld in past California cases.

Weighing (1) the special need of the state to stop persons who choose to fish or hunt in this state and to demand such persons display all fish or game that have been taken against (2) the intrusion upon such persons' reasonable expectation of privacy entailed by such a stop and demand, we conclude that the vehicle stop and demand at issue here constitutes a reasonable procedure under the Fourth Amendment. Accordingly, we reverse the Court of Appeal judgment upholding the suppression of evidence obtained by the game warden and subsequent dismissal of the charges against defendant.

I. Factual and Procedural Background


The relevant facts in this case, as disclosed by the evidence introduced at the trial court hearing on defendant's motion to suppress evidence, are undisputed.

Around 11:00 p.m. on a mid-August night in 2007, Erik Fleet, a Department of Fish and Game warden who had been employed by the department for 10 years, was on duty observing fishing activity occurring on the Ocean Beach public pier in San Diego. Warden Fleet was observing surreptitiously, using a spotting telescope mounted on the window of his truck, parked approximately 200 yards from the pier.

Fleet testified that his attention was drawn to defendant because defendant was "fishing on the pier in a method we call handlining, which is commonly used to catch lobsters. It's an illegal method of catching lobsters, but it's very productive and . . . basically a person holds a fishing line in their hand, either the fishing line goes back to their fishing rod and reel or . . . they hold it in their hand and they jerk the fishing line which generally has a treble hook on the bottom of it with the weight on it and squid is usually used for bait. And it gives them a better feel of the bottom because a lobster doesn't strike the bait, it will actually climb onto the bait and they lift the line up when they feel weight on it, they jerk it which causes the hook to penetrate the lobster and they bring it up. It is very common and that's what drew my attention to Defendant."*fn1

Fleet testified that defendant was accompanied on the pier by a woman and an infant, and had a black bag next to him. Fleet saw defendant catch something using the handlining method and place the catch into the black bag, but Fleet stated that he was not able to see what had been caught and placed in the bag. (Fleet explained that the spotting telescope generally was powerful enough to distinguish a fish from a lobster, but that the "geographics" of the pier sometimes prevented him from determining what was caught.)

Fleet then observed the two adults and the infant leave the pier, enter the Ocean Beach pier parking lot, and leave the parking lot in their vehicle. Fleet thereafter stopped defendant's vehicle approximately three blocks from the pier. He explained at the hearing that he stopped the vehicle "[b]ecause I had seen him fishing on the pier and I had seen him catch something and . . . put it into that black bag and therefore I wanted to make sure that . . . he was in compliance with the California fishing law and regulations." When asked whether at that point he suspected that defendant had broken the law, Fleet responded: "Not necessarily, no."

Fleet further testified that after stopping the vehicle, he approached the vehicle in full uniform, introduced himself as a state game warden, and asked defendant if he had any fish or lobsters in his vehicle. Defendant said "[N]o." In light of what he had observed, Fleet believed that defendant was lying, and Fleet then conducted a search of the interior of the vehicle, "discovered the black bag under the female's feet in the left rear passenger [area]," looked in the bag and found a California spiny lobster. Fleet took possession of the lobster. Spiny lobster was out of season at that time and could not lawfully be taken by any method. (Cal. Code Regs., tit. 14, § 29.90.)*fn2

Fleet testified that after finding the lobster, because "I was working by myself that evening and since he had the propensity to lie to me, I placed the Defendant in handcuffs for my safety and I sat him on the curb and continued a more detailed search of the vehicle." The further search did not turn up any other fish or lobsters.

Fleet testified that defendant eventually admitted "the lobster was his" and apologized, stating "he was being stupid for doing what he did." Fleet then issued defendant a citation and removed the handcuffs. Defendant signed the citation and Fleet released him. Fleet further testified that, after releasing defendant, he (Fleet) returned the spiny lobster to the water.

On cross-examination, Fleet acknowledged that "people can use handlining for . . . regular old fishing," that it was not illegal to catch fish by that method at the pier, and that when he saw defendant handlining he did not necessarily think that any law had been broken.

The hearing on the motion to suppress in the present case was conducted at the same time as similar suppression hearings in two other matters, involving different defendants, in which Fleet had obtained evidence of fishing violations utilizing the same basic investigative technique that he used with respect to defendant. At the hearing Fleet testified that his practice of viewing fishing activities from a hidden location using a spotting telescope and thereafter stopping persons who were to be checked after they had departed from their fishing locations in their cars was a general practice and technique that he had been taught in job training at the academy. He explained that the practice was utilized because "if I contact people either in the parking lot while people are entering the pier, new people entering the pier, or if I contact people on the pier, then my . . . 'cover' . . . becomes useless to me. . . . I can't blow my cover on the pier when I'm working the pier. If I go out there, then everybody on the pier knows that Fish and Game is present." He continued: "When I'm working the pier, I work more than one group of people. I can see multiple groups of people violating the law. So, if I go check one group, then the other groups, all the evidence gets thrown, or my cover gets blown." When asked to explain what he meant by "evidence gets ...

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