Metropolitan News-Enterprise


Wednesday, January 6, 2010


Page 3


Appeals Court Rejects Traffic Stop Based on Possible Fishing Violation




A Department of Fish and Game warden had no authority to stop a vehicle based upon mere suspicion the driver had just taken a lobster illegally, the Fourth District Court of Appeal ruled yesterday.

Div. One, in a 2-1 decision, said a San Diego Superior Court judge properly suppressed evidence the warden obtained by searching Bounh Maikhio’s car. Maikhio was charged with possessing a lobster during closed season  and failing to exhibit his catch on demand, both misdemeanors, after Warden Erik Fleet searched his car.

At the suppression hearing, Fleet testified that at about 11 p.m. on Aug. 19, 2007, he was on duty and observed activities on San Diego’s Ocean Beach pier by using a spotting telescope mounted on his truck, which was parked on a nearby street. Fleet saw Maikhio fishing on the pier, using a method called hand-lining.

Fleet said he saw the defendant catch something and place it in a black bag, which he took to his car. The warden acknowledged he could not see what the catch was, but said he followed the defendant’s vehicle and stopped it “to make sure...that he was in compliance with the California fishing laws and regulations.” Fleet testified that he did “[n]ot necessarily” suspect at the time of the stop that Maikhio had broken any law.

The defendant, he said, initially denied having fish or lobsters. Fleet said he searched the vehicle pursuant to Fish and Game Code Sec. 1006 and found the black bag in the rear passenger area, and that it contained a lobster, which Maikhio eventually admitted was his.

Searches by Wardens

The code section permits DFG wardens to search “[a]ll 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.”

Judge David B. Oberholtzer found that the search was not authorized by Sec. 1006 or by Sec. 2012, which requires presentation upon law enforcement demand of “[a]ll licenses, tags, and the birds, mammals, fish, reptiles, or amphibians taken or otherwise dealt with under this code, and any device or apparatus designed to be, and capable of being, used to take birds, mammals, fish, reptiles, or amphibians....”

Nor was the search reasonable under the Fourth Amendment, the judge held.

The San Diego Superior Court Appellate Division affirmed, but transferred the case to the Court of Appeal to resolve the issue of whether the code sections “authorize vehicle stops without reasonable suspicion of criminal conduct.”

Court of Appeal Justice Alex McDonald, joined by Justice Richard Huffman, answered that question in the negative.

McDonald noted that the statute makes no reference to vehicles and that an attorney general’s opinion interpreting a predecessor section concluded that vehicles were not “receptacles” as used in the statute.

“[C]ontrary to the People’s conclusory assertion, it cannot be fairly implied from the DFG’s express statutory powers that its wardens have the power to stop a specific vehicle on a public street and detain its occupants to make a section 2012 demand and conduct a section 1006 inspection,” the justice wrote.

Nor can the search be justified as a regulatory or administrative measure, McDonald said, because the stop “was indisputably made for normal law enforcement needs and to uncover evidence of ordinary criminal wrongdoing (i.e., a misdemeanor fishing offense) by a specific individual (i.e., Maikhio)” and not to meet any “special need” of the government.

Fourth Amendment Exception

As the Fourth Amendment special-needs exception did not apply, McDonald said, the search could only be justified if the officer had a reasonable suspicion of criminal activity. Since Fleet admitted he did not know whether the defendant was taking fish or lobster, and since hand-lining can be used for either, there was no such reasonable suspicion, the justice said.

Dissenting, Justice Patricia Benke took issue with her colleagues’ interpretation of the 1944 attorney general’s opinion. What the attorney general was saying, she explained, was that the statutes did not grant wardens “unfettered” discretion to stop cars, but allowed them to stop and search vehicles when they knew that an occupant had been fishing and might have taken contraband.

That was the situation here, Benke said.

“Fleet not only observed Maikhio leaving a fishing area, he actually saw Maikhio engaged in the act of fishing. Under the Attorney General’s opinion and the presumptive intent of the Legislature, that fact alone gave Fleet the authority to stop Maikhio’s car and inquire about any fish Maikhio had taken. ...Thus, having lawfully stopped Maikhio’s car, Fleet was authorized by section 2012 to inquire of Maikhio whether he had any fish or lobsters in the car. ...When Fleet received a negative response, which he had probable cause to believe was false, Fleet was then authorized to search the car.”

The case is People v. Maikhio, 10 S.O.S. 41.


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