Supreme Court of California Justia
Citation 51 Cal. 4th 1074, 253 P.3d 247, 126 Cal. Rptr. 3d 74

People v. Maikhio

Filed 6/20/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Appellant,
S180289
v.
Ct.App. 4/1 D055068
BOUHN MAIKHIO,
San Diego County
Defendant and Respondent.
Super. Ct. No. M031897

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.
1



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
2
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
3
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
4
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
A.
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
5
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.”1
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

1
An amicus curiae brief filed by the California Department of Fish and
Game explains that “[u]sing hooks to catch lobsters is illegal because they damage
the lobsters before they can be brought to the surface and measured to determine
whether they meet the minimum size requirements. Lobsters that are undersized,
and that have not had an opportunity to reproduce and help maintain a healthy
fishery, must be immediately returned to the ocean.” Under the applicable
regulations, noncommercial anglers may lawfully catch lobsters only by hand or
with hoop nets. (Cal. Code Regs., tit. 14, § 29.80, subds. (a), (b).)
6


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.)2
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

2
Under the applicable regulations, although a person fishing from a public
pier is not required to obtain a fishing license, he or she must comply with
applicable report card and tagging requirements and with all other applicable
fishing regulations. (See, e.g., Cal. Code Regs., tit. 14, §§ 1.74, subd. (c)(2)(B),
29.90-29.91.)
7


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 thrown,”
Fleet stated: “[Y]ou can throw evidence off the pier all the time . . . fish, lobsters
. . . .” In addition, Fleet noted that another reason for waiting until a person
departs from the pier is that “it solidifies possession for me that that person has no
intention of releasing whatever they have in their possession, fish or lobsters.”
8
B.
As a result of the foregoing incident, defendant was charged with two
misdemeanors: (1) possessing a spiny lobster during closed season (Cal. Code
Regs., tit. 14, § 29.90, subd. (a)), and (2) failing to exhibit his catch upon demand.
(Fish & G. Code, § 2012.) The potential penalty for each charge is a fine of not
more than $1,000, imprisonment in county jail for not more than six months, or
both such a fine and imprisonment. (Fish & G. Code, § 12002.)
Defendant moved to suppress the evidence obtained as a result of Fleet‟s
stop of his vehicle, asserting that such a vehicle stop was impermissible under the
Fourth Amendment of the United States Constitution in the absence of evidence
giving rise to reasonable suspicion that defendant had committed a criminal
offense, and that such evidence was not present here. The prosecution maintained
that prior California cases indicated that such a stop by a game warden could be
conducted in the absence of reasonable suspicion and that, in any event, the facts
here were sufficient to satisfy the reasonable suspicion standard. The trial court
disagreed with the prosecution‟s position on both points, ruling that such a vehicle
stop — like ordinary vehicle stops by police officers investigating suspected
criminal conduct — could be made only upon reasonable suspicion, and further
that the facts at issue here did not support the reasonable suspicion standard.
Accordingly, the trial court granted defendant‟s motion to suppress and
subsequently dismissed the charges.
The People appealed the dismissal to the appellate division of the superior
court. After briefing and argument, the appellate division reversed the trial court‟s
decision, concluding that the relevant provisions of the Fish and Game Code —
sections 1006 and 2012 — authorize a game warden to “stop and detain a person if
it is objectively reasonable for the warden to conclude that the person is involved
in fishing. The stop must be for the purpose of exercising the authority to conduct
9
an administrative inspection to determine whether the person is in compliance
with Fish and Game regulations, that is, to conduct a search of areas listed in
Section 1006 and to demand the person . . . exhibit the items listed in Section
2012.” The appellate division additionally concluded, as an alternative
justification for the stop, that Fleet‟s observation of defendant‟s conduct on the
pier “provided a basis for an objectively reasonable suspicion that [defendant] had
illegally harvested a lobster out of season . . . .”
Thereafter, upon defendant‟s request, the appellate division certified the
appeal for transfer to the Court of Appeal to permit that court to address the
important general question whether a California game warden is statutorily
authorized to stop a vehicle occupied by a person who the game warden
reasonably believes has recently been fishing or hunting but without reasonable
suspicion that the person has violated a fish and game statute or regulation, and, if
so, whether such a suspicionless stop is unconstitutional under the Fourth
Amendment. In response, the Court of Appeal transferred the appeal to itself for
hearing and decision, requesting briefing on “(1) whether Fish and Game Code
sections 1006 and 2012 authorize vehicle stops without reasonable suspicion of
criminal conduct, and (2) whether the warden in this case had reasonable suspicion
to believe [defendant] was engaged in illegal lobster fishing.”
After briefing and argument, the Court of Appeal, in a two-to-one decision,
concluded that Fleet‟s stop of defendant‟s vehicle was impermissible. In reaching
this conclusion, the majority opinion in the Court of Appeal initially determined
that although the relevant provisions of the Fish and Game Code authorize a game
warden “to stop people who are fishing on a pier to demand they exhibit their
catch and to inspect their receptacles (e.g., tackle boxes, pails, etc.) in which fish
may be stored,” those provisions do not authorize a game warden to stop a vehicle
in which a person who has recently been fishing is riding in order to make a
10
similar demand for the display of any fish that have been caught. The Court of
Appeal additionally concluded that, in any event, Fleet‟s stop of defendant‟s
vehicle would be permissible under the Fourth Amendment only if the facts
known to Fleet provided reasonable suspicion that defendant was involved in
criminal activity and that the facts disclosed by the record in this case did not rise
to the level of reasonable suspicion. Accordingly, the Court of Appeal concluded
that the trial court properly granted defendant‟s motion to suppress the evidence
obtained by Fleet and it affirmed the trial court‟s dismissal of the charges against
defendant.
One Court of Appeal justice dissented, concluding that “where a game
warden has good reason to believe that the occupants of a vehicle have been
recently engaged in regulated hunting or fishing,” the applicable statutory
provisions of the Fish and Game Code authorize the warden to stop the vehicle to
inquire if any game has been taken and to demand the display of such game, and
further that such a stop of a vehicle for these purposes does not violate the Fourth
Amendment whether or not the warden is aware of facts that provide reasonable
suspicion that the occupants have violated a fish and game statute or regulation.
On petition by the People, we granted review to consider the validity of the
conclusion by the Court of Appeal that a game warden is authorized to stop a
vehicle occupied by a person who has been recently fishing or hunting to demand
the display of all fish or game that have been caught or taken only if there is
reasonable suspicion that the occupant has violated a fish and game statute or
regulation.3

3
In its petition for review, the People sought review limited to the Court of
Appeal‟s conclusion that a vehicle stop by a game warden is permissible only if
there is reasonable suspicion that the occupant has committed a violation, and did

(footnote continued on next page)
11


II. Are California Fish and Game Wardens Statutorily Authorized to
Stop a Car Occupied by an Angler or Hunter, Without Reasonable Suspicion
That the Angler or Hunter Has Violated the Law, to Demand the Display of
Any Catch or Game in the Angler’s or Hunter’s Possession?

We begin by considering whether the applicable provisions of the Fish and
Game Code provided statutory authority for Warden Fleet to stop defendant‟s
vehicle under the circumstances presented in this case. As noted, the Court of
Appeal concluded that although the applicable statutes authorized Fleet to stop and
demand the display of any fish possessed by defendant when defendant was on the
pier or in the pier parking lot, the statutes did not authorize Fleet to stop
defendant‟s vehicle a few blocks from the pier to make a similar demand.
Two sections of the Fish and Game Code — sections 1006 and 2012 — are
potentially relevant to the issue of statutory authorization.
Fish and Game Code section 1006 provides in pertinent part: “The [Fish
and Game] department may inspect the following: [¶] (a) 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.”
Fish and Game Code section 2012 provides: “All licenses, tags, and the
birds, mammals, fish, reptiles, or amphibians taken or otherwise dealt with under

(footnote continued from previous page)

not seek review of the appellate court‟s determination that the facts known to the
warden in this case were insufficient to meet the reasonable suspicion standard.
Because the People did not seek review of this case-specific issue, we have no
occasion to determine whether the Court of Appeal correctly concluded that Fleet
lacked reasonable suspicion to stop defendant‟s vehicle. For purposes of this
opinion‟s discussion, we will simply assume, without deciding, that the facts
known to Fleet did not satisfy the reasonable suspicion standard.
12


this code, and any device or apparatus designed to be, and capable of being, used
to take birds, mammals, fish, reptiles, or amphibians shall be exhibited upon
demand to any person authorized by the department to enforce this code or any
law relating to the protection and conservation of birds, mammals, fish, reptiles, or
amphibians.”4
In analyzing whether Fleet‟s conduct was statutorily authorized, the Court
of Appeal placed primary emphasis on the provisions of section 1006. Because
that section lists “boats, markets, and stores” but does not list cars or other similar
vehicles among the places that the statute specifically authorizes the department to
inspect, the Court of Appeal reasoned that the statute did not authorize a game
warden to stop or search a vehicle, even if the vehicle was occupied by a person
who the warden reasonably believed had recently been fishing. In support of its
conclusion, the Court of Appeal relied in part on a 1944 opinion of the California
Attorney General concluding that the word “receptacles,” as used in the statutory
predecessor to section 1006, “cannot be extended to connote motor vehicles” (4
Ops.Cal.Atty.Gen. 405, 407 (1944)), and that the statutory provision in question
“confers no authority on the Commission or its officers to inspect or search
automobiles.” (Ibid.)
As we explain, however, we believe the Court of Appeal erred in placing
primary reliance upon section 1006 in evaluating the validity of the game
warden‟s action in this case. As the language and history of section 1006
demonstrate, that section is concerned with the authority of game wardens to
inspect or to search places, premises, or receptacles in which fish or game are
stored or placed. Section 1006 is not directed at the distinct question of the

4
Unless otherwise indicated, all further statutory references are to the Fish
and Game Code.
13


authority of game wardens to briefly stop or detain an angler or hunter in order to
demand the display of all fish or game he or she may have caught or taken.5 In
this case, the initial and key question concerns the authority of Fleet to stop
defendant‟s car in order to demand the display of any fish or lobsters he had
caught, and as to that issue it is the provisions of section 2012, rather than the
provisions of section 1006, that are most directly on point.6
Under the provisions of section 2012, any person who fishes or hunts in this
state is required to exhibit, upon demand of any game warden (1) any required
fishing or hunting license, (2) all fish or game that have been caught or taken, and
(3) any equipment that has been used to take such fish or game.7 Although the

5
Section 1006 is derived from former section 23 of the original Fish and
Game Code as enacted in 1933 (Stats. 1933, ch. 73, § 23, p. 396). Former section
23 provided in relevant part: “The commission shall inspect regularly (1) 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, mollusks, or crustaceans may be stored, placed, or held for
sale or storage . . . .” (Italics added.) In providing for the regular inspection of the
specified locations, former section 23 was evidently intended to authorize game
wardens to conduct repeated inspections of places where fish and game were
likely to be kept for sale or storage, and was not primarily directed at more ad hoc,
in-the-field stops of noncommercial anglers and hunters by game wardens seeking
the display of required licenses or any fish or game that have been caught or taken.

6
As we explain below (post, at pp. 36-37 & fn. 18), if Fleet‟s stop of
defendant‟s car and demand for display of any fish or lobsters caught was
statutorily authorized and constitutionally permissible, Fleet‟s subsequent search
of defendant‟s car and the black bag in the car were permissible under the ordinary
probable cause standard. Accordingly, we have no occasion in this case to
determine under what circumstances, if any, section 1006 would authorize a game
warden to search a “receptacle” that is located within an automobile on less than
probable cause.
7
Like section 1006, section 2012 is derived from a provision of the original
Fish and Game Code as enacted in 1933. Former section 403 provided: “All

(footnote continued on next page)
14


statutory language does not explicitly so provide, it appears clear that section 2012
implicitly authorizes a game warden to demand that a person who is or has
recently been fishing or hunting display to the warden the items to which the
statute refers. (See, e.g., Dickey v. Raisin Proration Zone No. 1 (1944) 24 Cal.2d
796, 810 [“It is well settled in this state that governmental officials may exercise
such . . . powers as are necessary for the due and efficient administration of
powers expressly granted by statute, or as may fairly be implied from the statute
granting the powers”]; Betchart v. Department of Fish & Game (1984) 158
Cal.App.3d 1104, 1109-1110 (Betchart) [applying foregoing principle in finding
game wardens have implied authority to enter private property on which hunting
occurs, despite property owner‟s objection, to enforce hunting regulations].)
Nothing in the language or purpose of section 2012 suggests that such a demand
may be made by a game warden only to an angler or hunter who the warden
reasonably suspects has violated a fish and game statute or regulation, or may be
made only when the angler or hunter is on foot or in a boat and not in a vehicle.
Given the great expanse of the areas within California in which fishing and
hunting take place and the necessarily limited number of game wardens available
to enforce the fish and game laws, in our view it is simply not reasonable to
interpret the statute as authorizing a game warden to stop an angler or hunter when
the angler or hunter is on foot or in a boat but not also to stop an angler or hunter

(footnote continued from previous page)

licenses and the birds, mammals, fish, mollusks, or crustaceans taken or otherwise
dealt with under the provisions thereof must be exhibited upon demand to any
peace officer of this State or to any person authorized to enforce the provisions of
this code or any law relating to the protection and conservation of birds, mammals,
fish, mollusks, or crustaceans.” (Stats. 1933, ch. 73, § 403, p. 435.)
15


who is travelling in a car during or recently after the fishing or hunting activity, to
demand that he or she display the statutorily designated items.
Prior California authority clearly supports an interpretation of section 2012
that authorizes a game warden to stop a vehicle occupied by an angler or hunter to
demand the display of the items specified in the statute. The 1944 opinion of the
California Attorney General relied upon by the Court of Appeal, for example,
drew a clear distinction between the authority of a game warden to search an
automobile and the authority of a game warden to stop an automobile to demand
the display of any game taken. The opinion concluded that whereas a game
warden was not authorized to search a vehicle without probable cause, the warden
could stop a vehicle occupied by persons who the warden reasonably believed to
have been hunting and demand that the occupants display any game that had been
taken. (4 Ops.Cal.Atty.Gen., supra, at p. 409.) Similarly, in People v. Perez
(1996) 51 Cal.App.4th 1168 (Perez), the Court of Appeal upheld the authority of
game wardens to stop and briefly detain vehicles occupied by hunters at a fixed
highway fish and game checkpoint to demand the display of licenses, game, and
hunting equipment. (Perez, supra, at p. 1178.) Defendant has not questioned the
validity of the decision in Perez or the general authority of game wardens to
establish fixed fish and game checkpoints on roads or highways, a practice that
would be impermissible if game wardens lacked statutory authority to stop a
vehicle in which an angler or hunter is riding to demand the display of the items
specified in section 2012. (See also State v. Keehner (Iowa 1988) 425 N.W.2d 41,
44-45 [interpreting comparable Iowa statute as authorizing a game warden to stop
a vehicle to demand the required display when the warden reasonably believes the
occupant is engaged in hunting]; Drane v. State (Miss. 1986) 493 So.2d 294, 297-
298 [interpreting Miss. law as authorizing game wardens to routinely stop vehicles
occupied by anglers or hunters to demand display of license or game].)
16
Accordingly, contrary to the determination of the Court of Appeal, we
conclude that, reasonably interpreted, section 2012 authorizes a game warden to
stop a vehicle whose occupant is or has recently been fishing or hunting to demand
the occupant display all fish or game he or she has caught or taken. Thus, Fleet‟s
stop of defendant‟s vehicle cannot be faulted on the ground that Fleet lacked
statutory authority to undertake such action.

III. Does a Fish and Game Warden’s Stop of an Angler’s Car to
Demand the Display of the Angler’s Catch, Without Reasonable Suspicion
that the Angler Has Violated a Fish and Game Statute or Regulation, Violate
the Fourth Amendment?

Defendant next contends that even if, as we have concluded, a California
game warden is statutorily authorized to effect a suspicionless stop of a vehicle
occupied by an angler or hunter to demand the display of all fish or game that the
occupant has caught or taken, such a stop constitutes an unconstitutional search
and seizure because it is made without reasonable suspicion of illegal activity. For
the reasons discussed below, we conclude that the vehicle stop was
constitutionally permissible.
Under the current provisions of the California Constitution, evidence
sought to be introduced at a criminal trial is subject to suppression as the fruit of
an unconstitutional search and seizure “only if exclusion is . . . mandated by the
federal exclusionary rule applicable to evidence seized in violation of the Fourth
Amendment [of the United States Constitution].” (In re Lance W. (1985) 37
Cal.3d 873, 896.) Accordingly, we must determine whether the vehicle stop at
issue violated the Fourth Amendment of the federal Constitution.
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons, houses, papers and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probable
17


cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” Although it is well established
that a brief stop of a vehicle to pose a question to an occupant or to demand the
display of a document or other item, like a similar brief stop and inquiry of a
pedestrian, constitutes a “seizure” for purposes of the Fourth Amendment (see,
e.g., Delaware v. Prouse (1979) 440 U.S. 648, 653 (Prouse) [vehicle stop]; United
States v. Brignoni-Ponce (1975) 422 U.S. 873, 878 (Brignoni-Ponce) [vehicle
stop]; Brown v. Texas (1979) 443 U.S. 47, 52 [pedestrian stop]; Terry v. Ohio
(1968) 392 U.S. 1, 16 [pedestrian stop]), it is equally well settled that because the
intrusion upon privacy occasioned by such a brief stop is much less significant
than the intrusion resulting from an arrest or other extended detention of an
individual, the ordinary probable cause and warrant requirements of the Fourth
Amendment applicable to arrests or similar full-scale seizures of a person do not
apply to such brief vehicle or pedestrian stops or detentions. (See, e.g., Brignoni-
Ponce, supra, at pp. 881-884; Brown v. Texas, supra, at pp. 50-51.) Instead, the
constitutional validity of such a stop turns upon the reasonableness of the
procedure, taking into account “ „the gravity of the public concerns served by the
seizure, the degree to which the seizure advances the public interest, and the
severity of the interference with individual liberty.‟ ” (Illinois v. Lidster (2004)
540 U.S. 419, 427; cf. Camara v. Municipal Court (1967) 387 U.S. 523, 536-537
[“[T]here can be no ready test for determining reasonableness other than by
balancing the need to search against the invasion which the search entails”].)
To date, the United States Supreme Court has not directly addressed the
question of the constitutional validity of a brief stop of an angler or hunter by a
game warden to demand the display of any fish or game in the angler‟s or hunter‟s
possession, either when the angler or hunter is on foot or is in a vehicle. Both
defendant and the People maintain, however, that decisions of the United States
18
Supreme Court arising in other contexts provide guidance as to the controlling
Fourth Amendment principles and each party argues that the prior decisions
support its own position regarding the asserted invalidity or validity of the vehicle
stop at issue here.
Defendant contends that the most relevant Supreme Court decisions are
those that, in other contexts, have upheld the constitutional validity of
suspicionless stops of cars at fixed highway checkpoints but at the same time have
concluded that suspicionless “roving” stops of cars are constitutionally
impermissible and that such roving stops may be made only upon reasonable
suspicion. (Compare Michigan Dept. of State Police v. Sitz (1990) 496 U.S. 444
(Sitz) [upholding suspicionless stop of vehicles at a fixed sobriety checkpoint] and
United States v. Martinez-Fuerte (1976) 428 U.S. 543 [upholding suspicionless
stop of vehicles at fixed border patrol checkpoint] with Prouse, supra, 440 U.S.
648 [invalidating suspicionless roving stop of vehicle to check for driver‟s license]
and Brignoni-Ponce, supra, 422 U.S. 873 [holding that roving stop of vehicle by
border patrol to check for undocumented aliens requires reasonable suspicion].)
Defendant argues that because the only prior California decision upholding the
constitutional validity of a suspicionless fish and game stop of a vehicle involved a
fixed highway checkpoint (see Perez, supra, 51 Cal.App.4th 1168) and because a
roving stop involves a greater intrusion on privacy and less constraint upon a game
warden‟s discretion than a fixed checkpoint (see, e.g., Prouse, supra, at p. 657),
the Perez decision does not support the validity of the game warden‟s roving stop
of his car in the present case.
In response, the People point out that in Prouse, supra, 440 U.S. 648
one of the seminal high court decisions finding roving suspicionless automobile
stops impermissible — Justice Blackmun authored a concurring opinion (joined by
Justice Powell) expressly cautioning that the rationale of the majority opinion in
19
Prouse would not necessarily apply to suspicionless vehicle stops by game
wardens. (See Prouse, supra, at p. 664 (conc. opn. of Blackmun, J.) [“I would not
regard the present case as a precedent that throws any constitutional shadow upon
the necessarily somewhat individualized and perhaps largely random examinations
by game wardens in the performance of their duties. In a situation of that type, it
seems to me, the Court‟s balancing process, and the value factors under
consideration, would be quite different”].) The People note that Justice
Blackmun‟s comment in Prouse is the only statement relating to fish and game
stops to appear in a Supreme Court decision to date. They contend that in the fish
and game context the factors upon which the high court relied in Prouse
particularly the practical need for and likely efficacy of suspicionless vehicle stops
to serve the state interest at issue — support the conclusion that stopping anglers
or hunters in vehicles to demand that they display any fish or game they have
caught or taken, even without reasonable suspicion of illegal activity, is reasonable
under the Fourth Amendment.
The People further contend that the constitutional validity of a suspicionless
stop of an angler‟s or hunter‟s vehicle by a game warden to demand the display of
any fish or game that has been caught or taken is supported by a separate line of
Supreme Court cases that, in a variety of contexts, have upheld regulatory or
administrative searches or seizures conducted without reasonable suspicion that
the individual or business subjected to the procedure has violated a statute or
regulation. (See, e.g., United States v. Biswell (1972) 406 U.S. 311 (Biswell)
[upholding suspicionless inspection of documents and records of licensed firearm
dealer]; Donovan v. Dewey (1981) 452 U.S. 594 (Donovan) [upholding
suspicionless inspection of underground and surface mines]; New York v. Burger
(1987) 482 U.S. 691 (Burger) [upholding suspicionless inspection of auto
junkyard]; Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602
20
(Skinner) [upholding suspicionless blood and urine testing of railroad employees
involved in major railroad accidents]; Treasury Employees v. Von Raab (1989)
489 U.S. 656 (Von Raab) [upholding suspicionless drug testing of customs service
employees seeking positions involving the interdiction of drugs or requiring the
carrying of firearms]; Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646
(Vernonia) [upholding suspicionless drug testing of school athletes]; see also City
of Indianapolis v. Edmond (2000) 531 U.S. 32, 37-38 (Edmond) [describing
instances in which suspicionless searches or seizures have been found
constitutionally permissible].)
The foregoing cases have generally involved circumstances in which (1) the
state has “special needs,” beyond its ordinary interest in the enforcement of
criminal statutes, to conduct inspections (see, e.g., Vernonia, supra, 515 U.S. at
pp. 652-653; Griffin v. Wisconsin (1987) 483 U.S. 868, 873; New Jersey v. T.L.O.
(1985) 469 U.S. 325, 351 (conc. opn. of Blackmun, J.)); (2) the regulations in the
particular area could not be effectively enforced if public officials could conduct
inspections only when the officials have a reasonable suspicion that a violation has
occurred (see, e.g., Donovan, supra, 452 U.S. at pp. 602-603; Burger, supra, 482
U.S. at p. 710); and (3) the persons or businesses subjected to the inspection are
engaged in a particular category of activity that reduces the reasonable expectation
of privacy of those engaged in such activities in relation to the searches or seizures
at issue, and the discretion of inspecting officials is reasonably constrained by the
authorizing statute or regulation (see, e.g., Vernonia, supra, at p. 657; Skinner,
supra, 489 U.S. at p. 627; Biswell, supra, 406 U.S. at p. 316).
In our view, the aforementioned factors to which the high court has looked
in its special needs and administrative inspection cases are the appropriate factors
to be considered in determining the reasonableness, for purposes of the Fourth
Amendment, of the fish and game procedure at issue here. As we explain below,
21
the state interest underlying a stop and demand pursuant to section 2012 is quite
distinct from the state‟s ordinary interest in the enforcement of its criminal law,
and the limited category of persons affected by the procedure — anglers and
hunters — are individuals who have chosen to engage in a heavily regulated
activity that reduces their reasonable expectation of privacy with regard to the type
of intrusion at issue.8 Accordingly, we conclude that the analysis undertaken by
the United States Supreme Court in the above line of cases is warranted in this
case as well.
Furthermore, in evaluating the factors considered in the special needs and
administrative inspection cases, we believe it is useful to begin by considering
whether, under the Fourth Amendment, it is reasonable for a game warden to stop
an angler or hunter who is not in a vehicle — that is, an angler or hunter who is on

8
In defending the stop in this case, the People — in addition to relying upon
the special needs and administrative inspection cases — argue that, in light of the
heavily regulated nature of fishing and hunting, persons who choose to fish or hunt
in this state have impliedly consented to be stopped by game wardens and to
display their catch or take upon demand, and thus may not properly challenge the
stop and demand procedure. Although the United States Supreme Court has at
times relied upon the “implied consent” theory (see, e.g., Almeida-Sanchez v.
United States
(1973) 413 U.S. 266, 271 [describing basis of administrative
inspection decisions]; Marshall v. Barlow’s, Inc. (1978) 436 U.S. 307, 313-314
[same]), that theory has drawn substantial scholarly criticism (see, e.g., 4 LaFave,
Search and Seizure (4th ed. 2004) § 8.2(l), pp. 122-124; 5 LaFave, Search and
Seizure, supra, § 10.2(c), pp. 48-53). The high court‟s more recent decisions have
usually described the effect of heavy or close regulation of a business or activity
(or the special nature of the activity engaged in by the person subjected to the
challenged procedure) as diminishing an individual‟s or business‟s reasonable
expectation of privacy (see, e.g., Donovan, supra, 452 U.S. at pp. 598-599, 603-
604; Burger, supra, 482 U.S. at pp. 701-702; Skinner, supra, 489 U.S. at pp. 627-
628; Von Raab, supra, 489 U.S. at p. 672; Vernonia, supra, 515 U.S. at pp. 654-
657) rather than by reference to implied consent. Following the Supreme Court‟s
current approach, we consider the effect of the state‟s close regulation of fishing
and hunting upon an angler‟s or hunter‟s reasonable expectation of privacy.
22


a pier, in a boat, or in the field — to demand that he or she display any fish or
game taken, without reasonable suspicion that the angler or hunter has violated a
fish and game statute or regulation. Thereafter, we consider whether even if such
a stop of an angler or hunter who is not in a vehicle is constitutionally permissible,
a suspicionless stop of a vehicle occupied by an angler or hunter who is or has
recently been fishing or hunting is or is not constitutionally permissible.
As noted above, the relevant cases have first considered the nature and
strength of the state interest or need that is sought to be served by the procedure at
issue, and whether that interest is distinct from the state‟s ordinary interest in
enforcing its criminal law. Here, the state interest at issue is the state‟s interest in
protecting and preserving the fish and game resources of the state for the benefit of
all of the public and for future generations. The legitimacy and importance of this
state interest are reflected in a number of provisions embodied in the California
Constitution (Cal. Const., art. I, § 25; id., art. IV, § 20; id., art. X B, §§ 1-16),9 in

9
Article I, section 25, was adopted in 1910 “ „to preserve to the people the
right to fish upon the public lands of the state, and to require that grants of land by
the state should not be made “without reserving to the people the absolute right to
fish thereon.” ‟ ” (Paladini v. Superior Court (1918) 178 Cal. 369, 372, quoting
Cal. Const., art. I, § 25.) At the same time, the section explicitly recognizes the
Legislature‟s authority to regulate “the season when and the conditions under
which the different species of fish may be taken” (Cal. Const., art. I, § 25),
reaffirming the broad legislative discretion, set forth in prior judicial decisions, to
protect the fish of the state for the public generally and for future generations.
(Paladini v. Superior Court, supra, at pp. 371-372.)

Article IV, section 20, authorizes the Legislature to divide the state into
“fish and game districts” and to “protect fish and game” in such districts, and
additionally establishes the Fish and Game Commission.

Article X B embodies the Marine Resources Protection Act of 1990,
limiting the use of gill and trammel nets.

23


numerous statutory provisions (e.g., Fish & G. Code, §§ 1700, 1801),10 and in
many judicial decisions rendered throughout our state‟s history. (See, e.g., Ex
parte Maier (1894) 103 Cal. 476, 479-484; Ex parte Kenneke (1902) 136 Cal. 527,
528-530; In re Phoedovius (1918) 177 Cal. 238, 241-244.) Past cases have
described the state interest in preserving and managing its natural resources,
including its wildlife, as great and compelling (see, e.g., Perez, supra, 51
Cal.App.4th at p. 1175; Betchart, supra, 158 Cal.App.3d at p. 1110), and have
stressed that the state has an obligation and duty to exercise supervision over such
resources for the benefit of the public generally. (See, e.g., People v. Harbor Hut
Restaurant (1983) 147 Cal.App.3d 1151, 1154 (Harbor Hut).) Although many of
the prior California decisions, drawing upon the common law, speak of the state‟s
“title” or “ownership” of the wild fish and animals within its borders (see, e.g., Ex
parte Maier, supra, at p. 483; Perez, supra, at p. 1175) — a characterization that a
number of United States Supreme Court decisions have described as a legal fiction
(see, e.g., Toomer v. Witsell (1948) 334 U.S. 385, 402; Douglas v. Seacoast

10
Section 1700 provides in relevant part: “It is hereby declared to be the
policy of the state to encourage the conservation, maintenance, and utilization of
the living resources of the ocean and other waters under the jurisdiction and
influence of the state for the benefit of all citizens of the state . . . . This policy
shall include . . . : [¶] (a) The maintenance of sufficient populations of all species
of aquatic organisms to insure their continued existence. . . .”

Section 1801 provides in relevant part: “It is hereby declared to be the
policy of the state to encourage the preservation, conservation, and maintenance of
wildlife resources under the jurisdiction and influence of the state. This policy
shall include the following objectives: [¶] (a) To maintain sufficient populations
of all species of wildlife and habitat necessary to achieve the objectives stated in
subdivisions (b), (c), and (d). [¶] (b) To provide for the beneficial use and
enjoyment of wildlife by all citizens of the state. [¶] (c) To perpetuate all species
of wildlife for their intrinsic and ecological values, as well as for their direct
benefits to all persons. [¶] (d) To provide for aesthetic, educational, and
nonappropriative uses of the various wildlife species.”
24


Products, Inc. (1977) 431 U.S. 265, 284; Hughes v. Oklahoma (1979) 441 U.S.
322, 331-336; cf. People v. Brady (1991) 234 Cal.App.3d 954, 961) — all of the
pertinent decisions, including all of the federal decisions that have addressed the
state ownership of wildlife language, confirm the legitimate and, indeed, vital
nature of a state‟s interest in protecting its natural resources, including the wildlife
within the state, from depletion and potential unavailability for future generations.
(See, e.g., Toomer, supra, at p. 402; Douglas, supra, at p. 284; Hughes, supra, at
pp. 335-336; Baldwin v. Montana Fish & Game Comm’n (1978) 436 U.S. 371,
386-387, 389-391; Brady, supra, at p. 961.) This state interest is quite distinct
from the state‟s ordinary interest in crime control, and in this respect is
comparable to the types of state interests involved in the high court‟s special needs
cases.
Second, many of the regulations that are required to further the state‟s
interest in preserving species of fish and game for the current and future
generations concern, for example, the specific species, number and size of fish or
animals that may be caught or taken.11 A rule permitting a game warden to stop
and to demand display of only those anglers or hunters who the warden reasonably
suspects have violated a statute or regulation would seriously compromise, if not
completely undermine, the state‟s ability to accomplish its objective. Violations
of these types of regulations are not readily apparent from an angler‟s or hunter‟s
outward appearance or conduct, and realistically can be detected only if a game

11
During the suppression hearing, Fleet explained: “All of the size
regulations are geared around the reproductive cycles of these fish and . . . it gives
the fish enough time to produce and spawn several seasons prior to being taken
from the wild. That‟s what the regulations are for, it‟s to keep the resource
stocked.”
25


warden is able to stop and demand the required disclosure of any person who the
warden reasonably believes is or has recently been fishing or hunting.
Prouse, supra, 440 U.S. 648, held that a roving suspicionless stop of a
vehicle to check if the driver possessed a valid driver‟s license was not a
reasonable seizure for purposes of the Fourth Amendment. In reaching this
conclusion, the United States Supreme Court relied heavily upon its determination
that (1) the state interest in ensuring that those persons driving on its roads and
highways have a valid driver‟s license was adequately and much more effectively
served by stopping vehicles that commit traffic violations and checking the
stopped drivers for valid licenses and registration than by choosing randomly to
stop vehicles from the entire universe of drivers to check for driver‟s licenses, and
(2) that an unlicensed driver would be as readily deterred by the likelihood of
being involved in an accident or stopped for a traffic violation as by the chance of
being randomly stopped for a spot check. (Prouse, supra, at pp. 659-660.)12 In

12
In Prouse, supra, 440 U.S. 648, the court stated in this regard: “The
foremost method of enforcing traffic and vehicle safety regulations, it must be
recalled, is acting upon observed violations. Vehicle stops for traffic violations
occur countless times each day; and on these occasions, licenses and registration
papers are subject to inspection and drivers without them will be ascertained.
Furthermore, drivers without licenses are presumably the less safe drivers whose
propensities may well exhibit themselves. Absent some empirical data to the
contrary, it must be assumed that finding an unlicensed driver among those who
commit traffic violations is a much more likely event than finding an unlicensed
driver by choosing randomly from the entire universe of drivers. If this were not
so, licensing of drivers would hardly be an effective means of promoting roadway
safety. It seems common sense that the percentage of all drivers on the road who
are driving without a license is very small and that the number of licensed drivers
who will be stopped in order to find one unlicensed operator will be large indeed.
The contribution to highway safety made by discretionary stops selected from
among drivers generally will therefore be marginal at best. Furthermore, and
again absent something more than mere assertion to the contrary, we find it
difficult to believe that the unlicensed driver would not be deterred by the

(footnote continued on next page)
26


the fish and game context, by contrast, there is no comparable alternative that
provides an effective means of enforcing the fish and game regulations, and
anglers and hunters are not likely to be deterred from complying with the
numerous, difficult-to-detect regulations in the absence of a requirement that they
display all fish or game caught or taken upon demand of any game warden. (See,
e.g., Mollica v. Volker (2d Cir. 2000) 229 F.3d 366, 372 [“ „It would be impossible
for environmental conservation officers to perform their regulatory functions
without stopping hunters as they leave known public hunting areas. . . . [I]t is
impossible to determine whether game is properly tagged until after the hunter
ha[s] secured the game and ha[s] departed the area.‟ [The conservation officer],
furthermore, could not have proceeded by attempting to spot drivers whose
particular characteristics gave rise to a reasonable suspicion. Unlike driving under
the influence of alcohol, the possession of improperly tagged deer cannot be
readily identified by the manner of driving, or other features ascertainable without
stopping a motor vehicle”].)

(footnote continued from previous page)

possibility of being involved in a traffic violation or having some other experience
calling for proof of his entitlement to drive but that he would be deterred by the
possibility that he would be one of those chosen for a spot check. In terms of
actually discovering unlicensed drivers or deterring them from driving, the spot
check does not appear sufficiently productive to qualify as a reasonable law
enforcement practice under the Fourth Amendment.” (Id. at pp. 659-660,
fn. omitted; see also Brignoni-Ponce, supra, 422 U.S. at p. 883 [“[t]he nature of
illegal alien traffic and the characteristics of smuggling operations tend to generate
articulable grounds for identifying violators. Consequently, a requirement of
reasonable suspicion for stops allows the Government adequate means of guarding
the public interest and also protects residents of the border areas from
indiscriminate official interference”].)
27


Third, for a number of reasons, we conclude that the intrusion upon privacy
engendered by a game warden‟s stop of an angler or hunter to demand the display
of his or her catch or take is relatively minor. To begin with, the stops are limited
to persons who a game warden reasonably believes are or have recently been
fishing or hunting — persons who have voluntarily chosen to engage in an activity
that is heavily regulated in order to assure the continued existence of the wildlife
of this state for the benefit not only of future generations but for the benefit of
current anglers and hunters themselves. In light of the number and nature of the
regulations that apply to fishing and hunting13 and the type of enforcement
procedures that are necessary to enforce such regulations, anglers and hunters have
a reduced reasonable expectation of privacy when engaged in such activity.14
(See, e.g., Perez, supra, 51 Cal.App.4th at p. 1178; Mollica v. Volker, supra, 229
F.3d at p. 372.) In addition, the intrusion upon privacy occasioned by such a stop
and demand is further diminished because the required display is limited to items
directly related to the person‟s fishing or hunting activity and does not require the
disclosure of unrelated possessions in which the angler or hunter reasonably
retains a substantial privacy interest. Finally, because section 2012 strictly limits
the items that a game warden may demand be displayed, the statute significantly
constrains a game warden‟s discretion in a manner that closely comports with the

13
The Department of Fish and Game has published an 88-page booklet
setting forth the regulations applicable to ocean sport fishing in California. (Cal.
Dept. Fish & Game, Cal. Ocean Sport Fishing Regulations (2010-2011).)

14
Contrary to defendant‟s contention, numerous cases establish that the
existence of pervasive regulation can diminish the reasonable expectation of
individuals as well as businesses. (See, e.g., Skinner, supra, 489 U.S. 602, 627-
628 [railroad workers]; Von Raab, supra, 489 U.S. at p. 672 [customs service
employees]; Vernonia, supra, 515 U.S. at p. 657 [school athletes]; Shoemaker v.
Handel
(3d Cir. 1986) 795 F.2d 1136 [racehorse jockeys].)
28


state interest in question. (Cf., e.g., Brignoni-Ponce, supra, 422 U.S. at pp. 881-
882 [“The officer may question the driver and passengers about their citizenship
and immigration status, and he may ask them to explain any suspicious
circumstances, but any further detention or search must be based on consent or
probable cause”]; Burger, supra, 482 U.S. at pp. 711-712 [“the permissible scope
of these searches is narrowly defined: the inspectors may examine the records, as
well as „any vehicles or parts of vehicles which are subject to the record keeping
requirements of this section and which are on the premises‟ ”].)
Balancing the importance and strength of the state‟s interest and need for
the suspicionless stop and demand procedure against the limited impingement
upon privacy resulting from that procedure, we conclude that the Fourth
Amendment does not preclude a state from authorizing a game warden to briefly
stop a person the warden encounters on a pier, in a boat, or in the field, who the
warden reasonably believes has recently been fishing or hunting, to demand that
the person display all fish or game that he or she has caught or taken, even in the
absence of reasonable suspicion that the person has violated a fish and game
statute or regulation. Indeed, both the Court of Appeal and defendant appear to
concede this point, because both acknowledge that, even in the absence of
reasonable suspicion, in this case Fleet could have stopped defendant and
demanded display of any fish or lobsters in his possession had Fleet confronted
defendant while defendant was on the pier or in the pier parking lot, rather than in
his car.
Defendant argues and the Court of Appeal concluded, however, that a
different constitutional result is compelled here because Fleet stopped defendant to
demand the display of his catch while defendant was in a car rather than on the
pier or in the pier parking lot. Even if we assume that the stop of a car on a public
street or highway involves a greater intrusion on privacy than the stop of an
29
individual when the individual is on foot, when the vehicle stop is made by a game
warden reasonably close in time and location to an individual‟s fishing or hunting
activity, the impingement upon the individual‟s reasonable expectation of privacy
is quite modest, and no more intrusive than the actions of game wardens that have
been upheld in prior California decisions. (See, e.g., Betchart, supra, 158
Cal.App.3d 1104 [game warden‟s entry onto private property, over owner‟s
objection, to enforce hunting regulations]; Harbor Hut, supra, 147 Cal.App.3d
1151 [game warden‟s inspection of wholesale fish market‟s records and stock].)
In light of the importance of the state interest served by such a stop, and the
practical need to be able to make such a stop and demand even when there is not
reasonable suspicion that an angler or hunter has violated a statute or regulation,
we conclude that when a game warden reasonably believes that an occupant of a
vehicle has recently been fishing or hunting, the warden does not violate the
Fourth Amendment by stopping the vehicle to demand the display of all fish or
game that have been taken.
We note that the great majority of out-of-state decisions that have addressed
the question of the validity of suspicionless stops of anglers and hunters by game
wardens have found such stops constitutionally permissible. Although many of
the cases have involved fixed highway checkpoints (see, e.g., U.S. v. Fraire (9th
Cir. 2009) 575 F.3d 929; State v. Sherburne (Me. 1990) 571 A.2d 1181; Drane v.
State, supra, 493 So.2d 294 [Miss.]; State v. Albaugh (N.D. 1997) 571 N.W.2d
345; State v. Tourtillott (Or. 1980) 618 P.2d 423; State v. Halverson (S.D. 1979)
277 N.W.2d 723), a substantial number have upheld roving suspicionless stops of
persons a game warden reasonably believes have been fishing or hunting. (See,
e.g., Elzey v. State (Ga.Ct.App. 1999) 519 S.E.2d 751; People v. Layton (Ill. App.
Ct. 1990) 552 N.E.2d 1280; State v. Keehner, supra, 425 N.W.2d 41 [Iowa]; State
30
v. Colosimo (Minn. 2003) 669 N.W.2d 1; State v. Boyer (Mont. 2002) 42 P.3d
771.)
Most of the out-of-state decisions that have found roving suspicionless fish
and game stops unconstitutional have involved instances in which the stops were
not confined to persons the game warden had reason to believe had recently been
fishing or hunting (see, e.g., United States v. Munoz (9th Cir. 1983) 701 F.2d
1293, 1295-1301; People v. Coca (Colo. 1992) 829 P.2d 385, 387; State v. Creech
(N.M.Ct.App. 1991) 806 P.2d 1080, 1084; State v. Legg (W.Va. 2000) 536 S.E.2d
110, 112) or went beyond the bounds of a reasonable fish and game inspection
(see, e.g., State v. Medley (Idaho 1995) 898 P.2d 1093; State v. Baldwin (N.H.
1984) 475 A.2d 522, 526-527). We are aware of one out-of-state case in which an
appellate court stated in dictum that although a game warden may conduct a
roving stop of an angler or hunter who is not in a vehicle without reasonable
suspicion, a roving stop of a vehicle occupied by an angler or hunter may be
conducted only upon reasonable suspicion. (People v. Levens (Ill. App. Ct. 1999)
713 N.E.2d 1275, 1277.) (The statement in question was dictum because in
Levens itself the court upheld the validity of the stop at issue in that case, finding
that the game warden who made the stop reasonably believed the defendant was
engaged in illegal hunting from his car.) In stating that reasonable suspicion was
required for such a vehicle stop, however, the court in Levens did not analyze the
various factors discussed in the special needs and administrative inspection cases,
and in particular failed to consider the practical effect of a reasonable suspicion
requirement upon the state‟s general ability to enforce its fish and game
regulations. For this reason, we do not find the dictum in Levens persuasive.
31
IV. Even If Suspicionless Fish and Game Vehicle Stops of Anglers or
Hunters Are Generally Constitutional, Did the Particular Circumstances of
the Vehicle Stop in This Case Render the Stop Unconstitutional?

Defendant further contends that even if the Fourth Amendment does not, as
a general matter, prohibit a roving suspicionless stop of a vehicle occupied by an
angler or hunter to demand the display of all fish or game that have been caught or
taken, the stop of defendant‟s car was nonetheless unlawful for a variety of
reasons arising from the particular facts of the present case. For the reasons
discussed below, we conclude that this additional claim lacks merit.
Defendant first asserts that although the stop in this case was conducted by
a game warden rather than an ordinary police officer, the technique utilized by the
warden — stopping vehicles leaving the pier only when the warden subjectively
believed that an occupant might have violated the law — demonstrates that the
warden‟s primary motivation for the stop was crime detection, rather than the
protection of the state‟s fish and game, and for that reason the stop was
unconstitutional. (Cf., e.g., Edmond, supra, 531 U.S. 32 [fixed highway
checkpoint established to detect and interdict illegal drugs was unconstitutional
because its purpose was ordinary crime control]; Ferguson v. Charleston (2001)
532 U.S. 67 [hospital‟s special procedure of drug testing pregnant patients was
unconstitutional because the police department‟s involvement in the procedure‟s
drafting and administration demonstrated that the procedure‟s objective was to
obtain evidence to facilitate the threat of criminal prosecution].) Although the
Court of Appeal agreed with this assertion, in our view it is not well founded. The
controlling United States Supreme Court decisions explain that in determining
whether the purpose of a challenged procedure is ordinary crime detection or some
other objective, the appropriate focus is upon the programmatic purpose of the
procedure, not the motivations of the individual officer. (See, e.g., Edmond,
supra, at pp. 45-47; Ferguson, supra, at p. 81.) As the high court‟s administrative
32
inspection cases establish, the circumstance that a violation of an administrative
regulation may be prosecuted as a crime does not mean that an administrative stop
or inspection procedure is primarily intended as an ordinary crime control
measure, rather than to serve a distinct interest other than the enforcement of the
criminal law. (See, e.g., Burger, supra, 482 U.S. at pp. 712-713; Biswell, supra,
406 U.S. at pp. 314-316.) In our view, it is clear that the primary programmatic
purpose of section 2012‟s requirement that anglers and hunters display all fish or
game that have been caught or taken upon demand of any game warden is to
protect and preserve the wildlife of the state, rather than to further the state‟s
interest in ordinary crime control. (See, e.g., U.S. v. Fraire, supra, 575 F.3d at
pp. 932-933 [game checkpoint was not a general crime control device even though
hunting violations could subject violator to criminal prosecution].) Moreover,
even if it were appropriate to consider the individual motivation of Warden Fleet,
it appears clear that his actions were directed at protecting the state‟s wildlife. As
we have seen, the record establishes that Fleet not only cited defendant for
violating the fish and game statutes and regulations, but also that he returned the
improperly taken lobster to the ocean, an action that clearly furthered the state‟s
interest in protecting and preserving the state‟s wildlife.15
Defendant next contends that in order to establish that the particular seizure
was reasonable for purposes of the Fourth Amendment, the prosecution was
required to establish that the specific investigative method employed here — that
is, the surreptitious observation of persons fishing on the pier and the subsequent

15
As noted above (ante, at p. 8), in this case the hearing on defendant‟s
motion to suppress evidence was conducted at the same time as suppression
hearings in two other cases in which Fleet made similar vehicle stops of anglers on
two other occasions. In each instance, in addition to citing the anglers, Fleet
returned all unlawfully caught fish or lobsters to the ocean.
33


stopping of individuals to demand the display of their catch only after they entered
their vehicles and left the pier parking lot — was necessary and more effective
than alternative enforcement procedures, such as establishing a fixed checkpoint at
the exit of the pier parking lot or having a fish and game officer demand such
display from anglers while they are still on the pier. Past cases, however, do not
support the suggestion that a state is obligated to utilize the least restrictive
alternative in establishing such administrative procedures in order to satisfy the
Fourth Amendment reasonableness standard, but rather explain that a state has
considerable leeway in choosing between alternative enforcement methods. (See,
e.g., Sitz, supra, 496 U.S. at pp. 453-454 [“[F]or purposes of Fourth Amendment
analysis, the choice among . . . reasonable alternatives remains with the
governmental officials who have a unique understanding of, and a responsibility
for, limited public resources, including a finite number of police officers”]; United
States v. Sokolow (1989) 490 U.S. 1, 11 [“The reasonableness of the officer‟s
decision to stop a suspect does not turn on the availability of less intrusive
investigatory techniques”].)
Here, although the game warden‟s observation of defendant was
surreptitious, the activity of defendant that was observed occurred in a public
place and was not of an intimate or private nature. Past California decisions have
upheld a game warden‟s use of a spotting telescope in this fashion to enforce the
applicable fish and game regulations. (See, e.g., People v. Tatman (1993) 20
Cal.App.4th 1, 6; People v. Nguyen (1984) 161 Cal.App.3d 687, 690-691.) In
view of the great geographic expanse and the significant number of locations at
which fishing and hunting occur in California and the limited number of game
34
wardens available to enforce the fish and game laws throughout the state,16 we
conclude that the administrative practice of utilizing covert observation — a
practice that promotes self-policing by anglers and hunters — constitutes a
reasonable means of enforcing the applicable fish and game statutes and
regulations. (Cf. Harbor Hut, supra, 147 Cal.App.3d at p. 1156 [“[A] wholesale
fish dealer‟s knowledge that his records and stock can, without warning, be
examined is an effective means of ensuring compliance with the applicable laws
and regulations”].)
Finally, defendant argues that the intrusion on privacy resulting from the
vehicle stop in this case was greater than the intrusions incurred in fish and game
stops in other cases because the stop here occurred at night in an urban area, a
setting in which a vehicle driver or occupant might well be apprehensive about
being stopped and directed to pull over by someone who might turn out not to be
an actual law enforcement officer. But it was defendant, of course, who chose to
fish at night on the pier in question, and because the vehicle stop was made in
close proximity to the pier by a uniformed game warden, we conclude that the
intrusion upon defendant‟s privacy resulting from the stop was not so significant
as to outweigh the justification for the stop.
Accordingly, we conclude that Fleet did not violate the Fourth Amendment
in stopping defendant‟s vehicle and demanding defendant display any fish or
lobsters he had caught.

16
According to the most recent state publication on state employment, the
Fish and Game Department employs approximately 300 game wardens in its law
enforcement division. (See Cal. Dept. of Fin., Salaries & Wages (2010-2011)
Natural Resources, pp. RES 69-70.)
35


V. If the Stop of Defendant’s Vehicle Was Lawful, Did the Fish and
Game Warden Nonetheless Violate the Fourth Amendment in Searching
Defendant’s Vehicle and Seizing the Lobster Found Therein?

Finally, defendant contends that even if the stop of his vehicle was lawful,
the evidence obtained by Fleet should still be suppressed because Fleet‟s
subsequent search of his vehicle and the black bag contained therein — which led
to the discovery of the evidence in question — was unconstitutional. We disagree.
As noted above, after stopping defendant‟s vehicle Fleet asked defendant
whether he had any fish or lobsters in his car and defendant responded that he did
not.17 Because Fleet had personally observed defendant catch either a fish or a
lobster on the pier, place the item in a black bag, take the bag to his vehicle in the
pier parking lot, and drive out of the lot, Fleet reasonably believed that defendant
was lying to him when he denied having any fish or lobsters in his vehicle. Under
these circumstances, Fleet had probable cause to believe (1) that defendant was in
violation of section 2012 requiring a person to exhibit his catch upon demand,
(2) that evidence of that violation was reasonably likely to be present in the black
bag into which the game warden had seen defendant place his catch, and (3) that
the black bag was reasonably likely to be in the vehicle defendant was driving
away from the pier. Accordingly, Fleet‟s ensuing search of defendant‟s vehicle
for the black bag, his search of the black bag itself, and his discovery and seizure
of the unlawfully taken lobster from inside the bag all were supported by probable

17
Although Fleet‟s question to defendant did not expressly “demand” the
display of any fish or lobsters in the vehicle, we believe it is clear that in context
the game warden‟s question to defendant, who had just left the pier after fishing,
reasonably would have been so understood, and neither defendant nor the Court of
Appeal suggests otherwise. (See, e.g., People v. Maxwell (1969) 275 Cal.App.2d
Supp. 1026, 1028 [construing game warden‟s statement to anglers as impliedly
demanding display of catch].) By denying that he had any fish or lobsters in his
vehicle when he had a lobster, defendant failed to display his catch upon demand.
36


cause and thus did not violate the Fourth Amendment. (See, e.g., United States v.
Ross (1982) 456 U.S. 798, 817-824.)18
VI. Conclusion
For the reasons discussed above, the Court of Appeal judgment, upholding
the trial court‟s suppression of evidence obtained by the game warden and its
subsequent dismissal of the charges against defendant, is reversed.
CANTIL-SAKAUYE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
COFFEE, J.P.T.*

18
Because defendant‟s conduct after being lawfully stopped provided Fleet
with probable cause to search defendant‟s vehicle and the black bag within the
vehicle, we have no occasion in this case to determine (1) whether section 1006
authorizes a game warden to search a vehicle occupied by an angler or hunter (or a
receptacle within such a vehicle) without probable cause or reasonable suspicion,
or (2) if section 1006 authorizes such a search, whether such a search would be
permissible under the Fourth Amendment. (See, e.g., People v. Maxwell, supra,
275 Cal.App.2d Supp. at pp. 1027-1029 [upholding game warden‟s suspicionless
search of sack carried by anglers disembarking from fishing boat when warden
reasonably believed sack contained fish]; People v. Johnson (1980) 108
Cal.App.3d 175, 179 [upholding game warden‟s search of sack in a vehicle
occupied by a hunter when warden reasonably believed sack contained
pheasants].)
*
Associate Justice of the Court of Appeal, Second Appellate District,
Division Six, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
37


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Maikhio
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 180 Cal.App.4th 1178
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S180289
Date Filed: June 20, 2011
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: David B. Oberholtzer

__________________________________________________________________________________

Counsel:

Jan I. Goldsmith, City Attorney, David P. Greenberg and Andrew Jones,, Assistant City Attorneys, Monica
A. Tiana and Jonathan I. Lapin, Deputy City Attorneys, for Plaintiff and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Matthew Rodriquez, Chief Assistant
Attorney General, Mary E. Hackenbracht, Assistant Attorney General, Carol A. Squire, Deborah Fletcher
and Nicholas Stern, Deputy Attorneys General, for California Department of Fish and Game as Amicus
Curiae on behalf of Plaintiff and Appellant.

Steven J. Carroll, Public Defender, Randy Mize, Chief Deputy Public Defender, Gary R. Nichols, Matthew
Braner and Jessica Marshall, Deputy Public Defenders, for Defendant and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Jonathan I. Lapin
Deputy City Attorney
1200 Third Avenue, Suite 700
San Diego, CA 92101-4103
(619) 533-5500

Nicholas Stern
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 323-3840

Matthew Braner
Deputy Public Defender
450 B Street, Suite 900
San Diego, CA 92101
(619) 338-4705


Petition for review after the Court of Appeal affirmed an order granting a motion to suppress evidence. This case includes the following issues: (1) Do Fish and Game Code sections 1006 and 2012 authorize a warden to make a traffic stop when there is reasonable suspicion to believe the driver has been fishing? (2) Must the warden suspect illegal activity in order to make such a stop? (3) Are hunting and fishing inspections without suspicion of illegal activity justified as "special needs" searches or authorized by implied consent?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 06/20/201151 Cal. 4th 1074, 253 P.3d 247, 126 Cal. Rptr. 3d 74S180289Review - Criminal Appealsubmitted/opinion due

Parties
1The People (Plaintiff and Appellant)
Represented by Jonathan Irving Lapin
Office of the City Attorney
1200 Third Avenue, Suite 700
San Diego, CA

2The People (Plaintiff and Appellant)
Represented by Monica Ann Tiana
Office of the City Attorney
1200 Third Avenue, Suite 700
San Diego, CA

3Maikhio, Bouhn (Defendant and Respondent)
3662 Altadena Ave. #3
San Diego, CA 92103

Represented by Matthew Curt Braner
Office of the San Diego County Public Defender
450 "B" Street, Suite 1100
San Diego, CA

4Maikhio, Bouhn (Defendant and Respondent)
3662 Altadena Ave. #3
San Diego, CA 92103

Represented by Gary R. Nichols
Office of the San Diego County Public Defender
233 "A" Street, Suite 1010
San Diego, CA

5Department of Fish & Game (Amicus curiae)
Represented by Nicholas Clark Stern
Office of the Attorney General
P.O. Box 944255
Sacramento, CA


Opinion Authors
OpinionChief Justice Tani Cantil-Sakauye

Dockets
Feb 18 2010Petition for review filed
Plaintiff and Appellant: The PeopleAttorney: Monica Ann Tiana  
Feb 18 2010Record requested
 
Feb 19 2010Received Court of Appeal record
  one doghouse
Mar 11 2010Answer to petition for review filed
Defendant and Respondent: Maikhio, BouhnAttorney: Gary R. Nichols   8.25b
Mar 23 2010Reply to answer to petition filed
Plaintiff and Appellant: The PeopleAttorney: Monica Ann Tiana   crc.8.25(b)
Apr 16 2010Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including May 18, 2010, or the date upon which review is either granted or denied.
Apr 28 2010Petition for review granted
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Apr 29 2010Record sent to Calendar Coordination Office
  2, 3, 4, 7, 8, 9, two file folders, amicus brief, respondent's rely to amicus brief
May 21 2010Request for extension of time filed
  appellant request extension until June 28, 2010 to file opening brief on the merits. by Monica A. Tiana, counsel
May 24 2010Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including June 28, 2010.
Jun 23 2010Request for extension of time filed
  appellant requesting extension until July 28, 2010 to file opening brief on the merits. by Monica A. Tiana, counsel
Jun 25 2010Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including July 28, 2010.
Jul 29 2010Opening brief on the merits filed
Plaintiff and Appellant: The PeopleAttorney: Monica Ann Tiana   crc.8.25(b)
Aug 25 2010Request for extension of time filed
  respondent requesting extension until September 29, 2010 to file answer brief on the merits. by Matthew Braner, counsel
Aug 27 2010Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 29, 2010.
Sep 14 2010Request for extension of time filed
  Respondent requesting second extension until October 12, 2010 to file answer brief on the merits. by Matthew Braner, counsel
Sep 16 2010Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 12, 2010.
Sep 29 2010Request for extension of time filed
  Respondent is asking to Oct. 18, 2010 to file the answer brief on the merits.
Oct 1 2010Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 18, 2010.
Oct 19 2010Answer brief on the merits filed
Defendant and Respondent: Maikhio, BouhnAttorney: Matthew Curt Braner   CRC 8.25(b)
Nov 4 2010Request for extension of time filed
  Appellant is asking to December 8, 2010 to file the reply brief on the merits.
Nov 8 2010Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including December 8, 2010.
Dec 9 2010Reply brief filed (case fully briefed)
Plaintiff and Appellant: The PeopleAttorney: Jonathan Irving Lapin   crc.8.25(b)
Dec 30 2010Application to file amicus curiae brief filed
  California Department of Fish and Game. by Nicholas Stern, counsel
Jan 5 2011Permission to file amicus curiae brief granted
  The application of California Department of Fish and Game for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Jan 5 2011Amicus curiae brief filed
Amicus curiae: Department of Fish & GameAttorney: Nicholas Clark Stern   California Department of Fish and Game in support of appellant.
Jan 12 2011Request for extension of time filed
  Respondent requesting extension until February 20, 2011 to file answer to amicus curiae. by Matthew Braner, counsel
Jan 18 2011Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer to amicus curiae is extended to and including February 20, 2011. No further extensions are contemplated.
Feb 23 2011Response to amicus curiae brief filed
Defendant and Respondent: Maikhio, BouhnAttorney: Matthew Curt Braner   crc.8.25(b)
Mar 29 2011Justice pro tempore assigned
  Hon. Paul H. Coffee Second Appellate District, Division Six
Apr 6 2011Case ordered on calendar
  to be argued Tuesday, May 3, 2011, at 1:30 p.m., in San Francisco
Apr 11 2011Received:
  Letter from Nicholas Stern, counsel for amicus curiae Deparment of Fish & Game, requesting to share appellant's argument time.
Apr 15 2011Filed:
  Letter from Janoathan Lapin, counsel for appellant The People, requesting to share 10 minutes of oral argument with amicus curiae California Department of Fish & Game.
Apr 26 2011Order filed
  The request of appellant to allocate to amicus curiae California Department of Fish and Game 10 minutes of appellant's 30-minute allotted time for oral argument is granted.
May 3 2011Cause argued and submitted
 
Jun 17 2011Notice of forthcoming opinion posted
  To be filed Monday, June 20, 2011 @ 10 a.m.

Briefs
Jul 29 2010Opening brief on the merits filed
Plaintiff and Appellant: The PeopleAttorney: Monica Ann Tiana  
Oct 19 2010Answer brief on the merits filed
Defendant and Respondent: Maikhio, BouhnAttorney: Matthew Curt Braner  
Dec 9 2010Reply brief filed (case fully briefed)
Plaintiff and Appellant: The PeopleAttorney: Jonathan Irving Lapin  
Jan 5 2011Amicus curiae brief filed
Amicus curiae: Department of Fish & GameAttorney: Nicholas Clark Stern  
Feb 23 2011Response to amicus curiae brief filed
Defendant and Respondent: Maikhio, BouhnAttorney: Matthew Curt Braner  
Brief Downloads
application/pdf icon
s180289-1-appellants-petition-for-review.pdf (698954 bytes) - Appellant's Petition for Review
application/pdf icon
s180289-2-respondents-answer-to-petition-for-review.pdf (128105 bytes) - Respondent's Answer to Petition for Review
application/pdf icon
s180289-3-appellants-reply-to-answer-to-petition-for-review.pdf (220192 bytes) - Appellant's Reply to Answer to Petition for Review
application/pdf icon
s180289-4-appellants-opening-brief-on-the-merits.pdf (542861 bytes) - Appellant's Opening Brief on the Merit
application/pdf icon
s180289-5-respondents-answer-brief-on-the-merits.pdf (714895 bytes) - Respondent's Answer Brief on the Merits
application/pdf icon
s180289-6-appellants-reply-brief-on-the-merits.pdf (266617 bytes) - Appellant's Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jun 7, 2012
Annotated by Joel Fyke

FACTS

During mid-August 2007, a California Department of Fish and Game warden named Erik Fleet observed Bouhn Maikhio fishing from a pier around 11:00 p.m. Using a spotting scope mounted to his truck, Warden Fleet ascertained that Maikhio was “handlining,” a fishing method whereby a person holds a line attached to a baited hook in order to feel pressure on the bait. California allows handlining to catch fish but does not allow the method for catching lobsters because the hooks damage the lobsters before they are brought to the surface and measured to determine if they meet minimum size requirements. Fleet observed Maikhio catch something and place it in a black plastic bag, but the warden, 200 yards from the pier, was unable to discern what the fisherman caught.

Maikhio, along with a woman and an infant who had accompanied him, left the pier and exited the parking lot in a vehicle. Fleet proceeded to stop Maikhio’s car three blocks from the pier. The warden asked Maikhio if he had any fish or lobsters in the vehicle, to which Maikhio responded, “No.” Fleet then searched the vehicle and found a spiny lobster in a black bag under the woman’s feet in the rear passenger area. Maikhio then admitted that he had caught the lobster, and Fleet cited him for (1) possessing a spiny lobster out of season and (2) failing to exhibit his catch upon demand.

Maikhio moved to suppress the evidence obtained by Fleet as a result of the search of his vehicle as impermissible under the Fourth Amendment because the warden lacked reasonable suspicion that Maikhio had violated the law.

PROCEDURAL HISTORY

The trial court granted the motion to suppress and dismissed the charges, holding that a vehicle stop could only be made upon reasonable suspicion and that the facts of the case did not support the reasonable suspicion standard.

The People appealed the ruling to the appellate division of the superior court, which reversed the decision, holding that §§ 1006 and 2012 of the California Fish and Game Code permits a warden to stop and detain if (1) the warden can objectively conclude that the person is involved in fishing and (2) the stop is to conduct an “administrative inspection” to verify compliance with Fish and Game regulations. As an alternative, the appellate division concluded that Fleet’s observation amounted to “objectively reasonable suspicion” that Maikhio had “harvested” the lobster out of season.

The appellate division certified the appeal for transfer to the Court of Appeal on the issue of “whether a California game warden is statutorily authorized to stop a vehicle occupied by a person who the game warden reasonably believes has recently been fishing or hunting but without reasonable suspicion that the person has violated a fish and game statute or regulation, and if so, whether such a suspicionless stop is unconstitutional under the Fourth Amendment.” The Court of Appeal upheld the ruling of the trial court and held in a two-to-one decision that Fleet’s stop was in violation of the Fourth Amendment. Specifically, the Court of Appeal held that, while the applicable sections of the Fish and Game Code authorize a game warden to stop a person, demand that she exhibit her catch, and inspect receptacles in which fish may be stored, that authorization does not extend to stopping a vehicle in which such a person is riding. Additionally, the Court of Appeal held that the facts of the case did not rise to the level of reasonable suspicion and that reasonable suspicion would be required to allow the stop under the Fourth Amendment.

ISSUES

Is a game warden authorized to stop a vehicle occupied by a person who has been recently fishing or hunting to demand the display of all fish or game that have been caught or taken only if there is reasonable suspicion that the occupant has violated a fish and game statute or regulation?

HOLDING

The California Fish and Game Code authorizes, and the Fourth Amendment permits, a game warden to stop a vehicle occupied by a person who has been recently fishing or hunting to demand the display of all fish or game that have been caught or taken even without a reasonable suspicion that the occupant has violated a fish and game statute or regulation.

ANALYSIS

-Statutory Authorization to Stop-

The Court first held that the California Fish & Game Code authorizes a game warden to stop a vehicle occupied by a person who has been recently fishing or hunting to demand the display of all fish or game that have been caught or taken even without a reasonable suspicion that the occupant has violated a fish and game statute or regulation.

In reaching this conclusion, the Court looked to the relevant language of §§ 1006 and 2012 of the Fish & Game Code. Section 1006 authorizes wardens to inspect “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 amphibian may be stored, placed, or held for sale or storage.”

While the Court noted that a 1944 opinion by the state attorney general stated that §1006 did not extend authority to motor vehicles, it declared that §2012 was more directly on point. Section 2012 requires a person to exhibit three items upon demand of any game warden: (1) any required fishing or hunting license; (2) all fish or game that have been caught or taken; and (3) any equipment used to take such fish or game. Under that section, the Court stated the warden was “implicitly authorize[d] to demand that a person who is or has recently been fishing or hunting display to the warden the items to which the statute refers.”

-Fourth Amendment-

The Court then looked to whether a statutorily permissible stop nevertheless violates the Fourth Amendment and held that the Fourth Amendment was not violated by the statute allowing such a stop without reasonable suspicion.

After summarizing the state of Fourth Amendment law as it relates to the relative intrusion of a stop in comparison with that caused by an arrest or extended detention, the Court employed the balancing test from Illinois v. Lidster (see case citations below): “ ‘the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.’ ”

Before turning to the three factors, the Court stated that it would analyze the situation first without considering the motor vehicle.

Considering the three issues in turn, the Court first declared that the state’s interest in protecting and preserving fish and game resources was high, pointing to a litany of cases characterizing the interest as “great,” “compelling,” “legitimate,” and “vital.”

Second, the Court characterized the measures taken to advance the public interest (stopping and demanding) as having “no comparable alternative” in terms of effectively enforcing the regulations.

Third, the Court noted that the intrusion upon privacy was “relatively minor” based on four factors.

- The stops are limited to persons who a game warden reasonably believes are or have recently been fishing or hunting

- Fishing and gaming are heavily regulated activities, and the manner of enforcing those regulations leads to a reduced reasonable expectation of privacy when engaged in the activity.

- The required display is limited to items directly related to the person’s fishing or hunting activity

- Section 2012 provides significant constraints on a game warden’s discretion
The Court then turned to the question of the motor vehicle, concluding that “the impingement upon the individual’s reasonable expectation of privacy is quite modest, and no more intrusive than the actions of game wardens that have been upheld in prior California decisions.”

The Court finally concluded that “when a game warden reasonably believes that an occupant of a vehicle has recently been fishing or hunting, the warden does not violate the Fourth Amendment by stopping the vehicle to demand the display of all fish or game that have been taken.”

-Application to this case-

Having established that the state’s need to regulate fish and game populations is an important one, the Court applied the second and third prongs of the balancing test.

In analyzing the degree to which this stop advanced the public interest, the Court looked to U.S. Supreme Court precedent concerning administrative inspection and special needs cases (see in particular Von Raab, Skinner, Edmond, and T.L.O. in the case listing below). The Court held that the programmatic purpose of the stop fell within acceptable grounds of advancing a state interest other than crime control, and that the State was not obligated to use the least restrictive alternative in order to enforce the regulations.

On the third prong, the Court concluded that the intrusion on the privacy of Maikhio (the stop occurred at night in an urban area) was not so significant as to outweigh the justification for the stop.

Taking into account the state’s interest in enforcing the regulations, the efficacy of the means of enforcement, and the intrusions on privacy, the Court concluded that the warden did not violate the Fourth Amendment in stopping Maikhio’s vehicle and demanding that he display any fish or lobsters he had caught.

-Probable Cause-

Lastly, the Court decided that, because Warden Fleet had personally observed Maikhio catch and place something in the black bag, take the bag to a vehicle, and drive away, he had probable cause to believe that the defendant was in violation of §2012, that the evidence of the violation was in the bag, and that the bag was reasonably likely to be in the vehicle. Therefore, the search and seizure were supported by probable cause and did not violate the Fourth Amendment.

-Tags-

fourth amendment, reasonable suspicion, suspicionless search, administrative inspection, special needs, fish and game, game warden, search and seizure, Warrantless Search, Cal. FISH & GAME Code §1006, Cal. FISH & GAME Code §2012

-Cited Statutes and Regulations-

Cal. FISH & GAME Code §1006
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fgc&group=00001-01...

Cal. FISH & GAME Code §2012
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fgc&group=01001-02...

-Cited Cases (listed in order of appearance in the opinion)-

Dickey v. Raisin Proration Zone No. 1, 24 Cal.2d 796. (1944)
http://scholar.google.com/scholar_case?case=10540643900788623633&q=24+Ca...

Betchart v. Department of Fish & Game 158 Cal.App.3d 1104 (1984).
http://scholar.google.com/scholar_case?case=1057304549832940542&q=158+Ca...

People v. Perez 51 Cal.App.4th 1168 (1996)
http://scholar.google.com/scholar_case?case=4741648232235265261&q=51+Cal...

State v. Keehner 425 N.W.2d 41 (Iowa 1988).
http://scholar.google.com/scholar_case?case=18413822056756495335&q=425+N...

Drane v. State 493 So.2d 294 (Miss. 1986).
http://scholar.google.com/scholar_case?case=11199083800152977982&q=493+S...

Delaware v. Prouse 440 U.S. 648 (1979).
http://scholar.google.com/scholar_case?case=671964346320770416&q=440+U.S...

United States v. Brignoni-Ponce 422 U.S. 873 (1975)
http://scholar.google.com/scholar_case?case=17010248136028194244&q=422+U...

Brown v. Texas 443 U.S. 47 (1979)
http://scholar.google.com/scholar_case?case=17131345014686603365&q=443+U...

Terry v. Ohio 392 U.S. 1 (1968).
http://scholar.google.com/scholar_case?case=17773604035873288886&q=392+U...

Illinois v. Lidster 540 U.S. 419 (2004).
http://scholar.google.com/scholar_case?case=15933852860274574817&q=540+U...

Camara v. Municipal Court 387 U.S. 523 (1967).
http://scholar.google.com/scholar_case?case=2317094957132474824&q=387+U....

Michigan Dept. of State Police v. Sitz 496 U.S. 444 (1990).
http://scholar.google.com/scholar_case?case=11348246873623439918&q=496+U...

United States v. Martinez-Fuerte 428 U.S. 543 (1976).
http://scholar.google.com/scholar_case?case=12168013009786458670&q=428+U...

United States v. Biswell 406 U.S. 311 (1972).
http://scholar.google.com/scholar_case?case=15699283872300841766&q=406+U...

Donovan v. Dewey 452 U.S. 594 (1981).
http://scholar.google.com/scholar_case?case=13160281078217041331&q=452+U...

New York v. Burger 482 U.S. 691 (1987).
http://scholar.google.com/scholar_case?case=3817641230844325043&q=482+U....

Skinner v. Railway Labor Executives’ Assn. 489 U.S. 602 (1989).
http://scholar.google.com/scholar_case?case=6102826977251195448&q=489+U....

Treasury Employees v. Von Raab 489 U.S. 656 (1989).
http://scholar.google.com/scholar_case?case=9123832187759361431&q=489+U....

Vernonia School Dist. 47J v. Acton 515 U.S. 646 (1995).
http://scholar.google.com/scholar_case?case=5294601874680736546&q=515+U....

City of Indianapolis v. Edmond 531 U.S. 32 (2000).
http://scholar.google.com/scholar_case?case=605414745192665577&q=531+U.S...

Griffin v. Wisconsin 483 U.S. 868 (1987).
http://scholar.google.com/scholar?q=483+U.S.+868+&btnG=&hl=en&as_sdt=2%2C5

New Jersey v. T.L.O. 469 U.S. 325 (1985).
http://scholar.google.com/scholar_case?case=4170966027434691269&q=469+U....

Almeida-Sanchez v. United States 413 U.S. 266 (1973).
http://scholar.google.com/scholar_case?case=6933260753627774699&q=413+U....

Marshall v. Barlow’s, Inc. 436 U.S. 307 (1978).
http://scholar.google.com/scholar_case?case=11785638731606285522&q=436+U...

Paladini v. Superior Court 178 Cal. 369 (1918).

Ex parte Maier 103 Cal. 476 (1894).

Ex parte Kenneke 136 Cal. 527 (1902).

In re Phoedovius 177 Cal. 238 (1918).

People v. Harbor Hut Restaurant 147 Cal.App.3d 1151 (1983).
http://scholar.google.com/scholar_case?case=15701711427859041866&q=147+C...

Toomer v. Witsell 334 U.S. 385 (1948).
http://scholar.google.com/scholar_case?case=12099447828869639557&q=334+U...

Douglas v. Seacoast Products, Inc. 431 U.S. 265 (1977).
http://scholar.google.com/scholar_case?case=3270273161181195837&q=431+U....

Hughes v. Oklahoma 441 U.S. 322 (1979).
http://scholar.google.com/scholar_case?case=1462415598497051705&q=441+U....

People v. Brady 234 Cal.App.3d 954 (1991).
http://scholar.google.com/scholar_case?case=8657844444409355742&q=234+Ca...

Baldwin v. Montana Fish & Game Comm’n 436 U.S. 371 (1978).
http://scholar.google.com/scholar_case?case=10129499138166717934&q=436+U...

Mollica v. Volker 229 F.3d 366 (2d Cir. 2000).
http://scholar.google.com/scholar_case?case=2788412610749548965&q=229+F....

Shoemaker v. Handel 795 F.2d 1136 (3d Cir. 1986).
http://scholar.google.com/scholar_case?case=3126286593065939818&q=795+F....

U.S. v. Fraire 575 F.3d 929 (9th Cir. 2009).
http://scholar.google.com/scholar_case?case=13412363073494981161&q=575+F...

State v. Sherburne 571 A.2d 1181 (Me. 1990).
http://scholar.google.com/scholar_case?case=5812961012467275028&q=571+A....

State v. Albaugh 571 N.W.2d 345 (N.D. 1997).
http://scholar.google.com/scholar_case?case=12449162298501245104&q=571+N...

State v. Tourtillott 618 P.2d 423 (Or. 1980).
http://scholar.google.com/scholar_case?case=1101461680062838206&q=618+P....

State v. Halverson 277 N.W.2d 723 (S.D. 1979).
http://scholar.google.com/scholar_case?case=17363070623595906864&q=277+N...

Elzey v. State 519 S.E.2d 751 (Ga.Ct.App. 1999).
http://scholar.google.com/scholar_case?case=3970994555458909605&q=519+S....

People v. Layton 552 N.E.2d 1280 (Ill. App. Ct. 1990).
http://scholar.google.com/scholar_case?case=2687319148016950722&q=552+N....

State v. Colosimo 669 N.W.2d 1 (Minn. 2003).
http://scholar.google.com/scholar_case?case=8875682914365304075&q=669+N....

State v. Boyer 42 P.3d 771 (Mont. 2002).
http://scholar.google.com/scholar_case?case=18130206182352572278&q=42+P....

United States v. Munoz 701 F.2d 1293 (9th Cir. 1983).
http://scholar.google.com/scholar_case?case=18086630584882756725&q=701+F...

People v. Coca 829 P.2d 385 (Colo. 1992).
http://scholar.google.com/scholar_case?case=9798025252658818042&q=829+P....

State v. Creech 806 P.2d 1080 (N.M.Ct.App. 1991).
http://scholar.google.com/scholar_case?case=15162870389249930000&q=806+P...

State v. Legg 536 S.E.2d 110 (W.Va. 2000).
http://scholar.google.com/scholar_case?case=3413077514433445591&q=536+S....

State v. Medley 898 P.2d 1093 (Idaho 1995).
http://scholar.google.com/scholar_case?case=13104268740046874355&q=898+P...

State v. Baldwin 475 A.2d 522 (N.H. 1984).
http://scholar.google.com/scholar_case?case=9629495770969163802&q=475+A....

People v. Levens 713 N.E.2d 1275 (Ill. App. Ct. 1999).
http://scholar.google.com/scholar_case?case=10461540194729007908&q=713+N...

Ferguson v. Charleston 532 U.S. 67 (2001).
http://scholar.google.com/scholar_case?case=12447804856380641716&q=532+U...

United States v. Sokolow 490 U.S. 1 (1989).
http://scholar.google.com/scholar_case?case=1799203374017461902&q=490+U....

People v. Tatman 20 Cal.App.4th 1 (1993).
http://scholar.google.com/scholar_case?case=13081697736276182888&q=20+Ca...

People v. Nguyen 161 Cal.App.3d 687 (1984).
http://scholar.google.com/scholar_case?case=14508296541460341886&q=161+C...

People v. Maxwell 275 Cal.App.2d Supp. 1026 (1969).
http://scholar.google.com/scholar_case?case=4973147616461031643&q=275+Ca...

United States v. Ross 456 U.S. 798 (1982).
http://scholar.google.com/scholar_case?case=16486997063826411961&q=456+U...