Metropolitan News-Enterprise


Tuesday, June 21, 2011


Page 1


S.C. Upholds Traffic Stop Based on Possible Fishing Violation


By a MetNews Staff Writer


A Department of Fish and Game warden had the right to stop a vehicle based upon mere suspicion the driver had just taken a lobster illegally, the Fourth District Court of Appeal ruled yesterday.

The government’s interest in preserving and protecting “the wildlife of the state for current and future generations,” independent of its interest in crime control, permits a brief stop and demand that the occupant of a vehicle produce recently taken fish and game, Chief Justice Tani Cantil-Sakauye wrote for a unanimous court.

The chief justice, writing for a unanimous court, cited the “administrative search” exception to the general rule that the Fourth Amendment requires reasonable cause for a warrantless stop and search of a vehicle.

The decision reversed last year’s 2-1 ruling by the Fourth District  Court of Appeal’s Div. One, which upheld a San Diego Superior Court judge’s suppression of 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 conducted the search.

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.

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, noting that the statutes made no reference to vehicle searches.

Dissenting Justice Patricia Benke argued that the warden was entitled to stop the car because he actually saw the defendant fishing, and that he was authorized to search the vehicle because he had probable cause to believe Maikhio was lying when he denied having fish or lobsters.

The chief justice, in her opinion yesterday, agreed with Benke. She noted that hunting and fishing are the types of voluntary, heavily regulated activities that the administrative search exception has been applied to, and that courts in many jurisdictions have upheld stops and searches under similar circumstances.

“[T]he 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,” Cantil-Sakauye wrote.

The case is People v. Maikhio, 11 S.O.S. 3280.


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