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Hunting Violation Checkpoints:

[UPDATE: Analysis, and, in some measure the bottom line, substantially revised.] The Sacramento Bee reports:

The California Department of Fish and Game will stage three roadside checkpoints in Placer County on Sunday in an effort to catch hunting violations....

"The checkpoint is there to find violations of the Fish and Game Code," said Placer County Game Warden Brian Moore. "It could be anything — out of season hunting or animals that are fully protected — that could come through." ...

Wardens will stop vehicles to inquire about hunting and fishing activity and check licenses.

That's pretty clearly a Fourth Amendment violation, under the Supreme Court's decision in City of Indianapolis v. Edmond (2000), which held that similar checkpoints aimed at uncovering drug couriers were unconstitutional. Here's a relevant excerpt from Edmond:

The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Chandler v. Miller, 520 U.S. 305, 308 (1997). While such suspicion is not an "irreducible" component of reasonableness, we have recognized only limited circumstances in which the usual rule does not apply.

For example, we have upheld certain regimes of suspicionless searches where the program was designed to serve "special needs, beyond the normal need for law enforcement." ... We have also upheld brief, suspicionless seizures of motorists ... at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). In addition, in Delaware v. Prouse, 440 U.S. 648, 663 (1979), we suggested that a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing....

In Sitz, we evaluated the constitutionality of a Michigan highway sobriety checkpoint program. The Sitz checkpoint involved brief suspicionless stops of motorists so that police officers could detect signs of intoxication and remove impaired drivers from the road. Motorists who exhibited signs of intoxication were diverted for a license and registration check and, if warranted, further sobriety tests. This checkpoint program was clearly aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue. The gravity of the drunk driving problem and the magnitude of the State's interest in getting drunk drivers off the road weighed heavily in our determination that the program was constitutional....

We further indicated in Prouse that we considered the purposes of ... a hypothetical [license and registration verification] roadblock to be distinct from a general purpose of investigating crime. The State proffered the additional interests of "the apprehension of stolen motor vehicles and of drivers under the influence of alcohol or narcotics" in its effort to justify the discretionary spot check. We attributed the entirety of the latter interest to the State's interest in roadway safety. We also noted that the interest in apprehending stolen vehicles may be partly subsumed by the interest in roadway safety. We observed, however, that "[t]he remaining governmental interest in controlling automobile thefts is not distinguishable from the general interest in crime control." Not only does the common thread of highway safety thus run through Sitz and Prouse, but Prouse itself reveals a difference in the Fourth Amendment significance of highway safety interests and the general interest in crime control....

So highway checkpoints aimed at interdicting threats to highway traffic themselves are generally constitutional (which may also help explain airport searches). But suspicionless highway checkpoints aimed at catching people who commit other crimes, whether drug trafficking or illegal hunting, are generally not constitutional (unless some other exception kicks in, and none of those would apply here).

UPDATE: But while that is still my view of the best reading of Edmond, Orin pointed out to me that other cases have generally upheld hunting checkpoints. Some of these (State v. Sherburne, 571 A.2d 1181 (Me. 1990), and People v. Layton, 552 N.E.2d 1280 (Ill. App. Ct. 1990)) are pre-Edmond, and strike me as inconsistent with Edmond's reasoning. But the Ninth Circuit's decision last month in United States v. Fraire likewise upheld a hunting checkpoint at the entrance to a national park:

We first address whether the checkpoint was unconstitutional as a general crime control device. In Edmond, the city of Indianapolis operated vehicle checkpoints on city streets in an effort to discover and interdict illegal drugs. The Court held that the checkpoint program violated the Fourth Amendment because the "primary purpose" was to "uncover evidence of ordinary criminal wrongdoing." The Court distinguished two prior cases permitting checkpoints, Martinez-Fuerte and Sitz, on the grounds that the checkpoints in those cases served purposes other than ordinary crime control. In Martinez-Fuerte, the Court upheld the constitutionality of an immigration checkpoint near the U.S.-Mexico border. In Sitz, the Court upheld the constitutionality of a sobriety checkpoint that examined all drivers passing through for signs of intoxication. In Edmond, the Court explained why the primary purpose of the checkpoints in Martinez-Fuerte and Sitz were not the detection of ordinary criminal wrongdoing. The Court acknowledged that "[s]ecuring the border and apprehending drunk drivers are, of course, law enforcement activities, and law enforcement officers employ arrests and criminal prosecutions in pursuit of these goals." However, the checkpoint program in Sitz "was clearly aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue." As for Martinez-Fuerte, the objective there was to "intercept illegal aliens" and "to serve purposes closely related to the problems of policing the border[.]"

We must now determine whether the checkpoint in this case is a general crime control device, as in Edmond, or whether it serves a different purpose, as in Sitz or Martinez- Fuerte. The district court found that the checkpoint's purposes included "catching violators, ... deterrence, education and in turn wildlife protection." This finding is supported by Ranger Schifsky's testimony at the evidentiary hearing, who testified that the checkpoint was aimed at mitigating the effects of the illegal taking of animals in the park. That the checkpoint accomplished this goal through the use of law enforcement techniques does not automatically transform it into a crime control device for Fourth Amendment purposes.

The checkpoint in this case is analogous to the checkpoint upheld in Sitz and is distinguishable from the checkpoint in Edmond. A critical factor in Sitz was the close connection between the checkpoint and the harm it was seeking to prevent. Sitz (describing the "obvious connection between the imperative of highway safety and the law enforcement practice at issue" in Sitz); id. (emphasizing the "close connection to roadway safety"). Likewise, here, the checkpoint was situated at an entrance to the park and sought to counter illegal hunting within that park. Unlike the drug crimes addressed by the Edmond checkpoint, which occur throughout the nation, the wildlife offenses here are specific to national parks. Further, just as the Sitz checkpoint prevented an immediate harm to motorists, the checkpoint here prevents hunters from destroying a precious natural resource. It does so by catching poachers before they can kill additional animals, by deterring would-be poachers, and by educating the park-going public about the hunting prohibition. The goal was prevention, not arrests.

I confess that I do not find this argument persuasive, even taking into account Martinez-Fuerte (which Edmond treated as being closely linked to the special "border context"). Among other things, the goal of much criminal law is "prevention" via "deterr[ence]" and not just "arrests" when deterrence fails; and one could equally well say that the checkpoint in Edmond was aimed at preventing the "destr[uction of] a precious natural resource," which is to say the health of Americans.

At the same time, this might just reflect how unclear the administrative search/law enforcement search line is; perhaps there is no crisp line to be drawn here, and the Ninth Circuit's and California's position is as well-founded -- or as ill-founded -- as mine. And certainly in light of the Ninth Circuit decision, California is entitled to treat the checkpoint as constitutional, at least if it is "situated at an entrance to the park," as opposed to far enough away from the entrance (query how relevant this should be, but the Ninth Circuit seems to suggest that it is relevant enough to be worth mentioning).

Thanks to Gregory Broderick for the pointer, and to Orin for pointing me to the lower court caselaw on this.

Related Posts (on one page):

  1. Hunting Violation Checkpoints:
  2. Hunting Violation Checkpoints:
Curt Fischer:

Wardens will stop vehicles to inquire about hunting and fishing activity and check licenses.


Is the key word "inquire about", i.e., not "demand to see"? Is it a search when the police stop your car for no other reason than they are stopping all cars? I would assume it is a search if police demand that you show them your hunting license, but what if they just ask to see it?
9.10.2009 6:11pm
Mark Creatura:
It is a seizure.
9.10.2009 6:16pm
Oren:
Curt, forcing your car to stop is a seizure within the meaning of the 4A.
9.10.2009 6:18pm
ArthurKirkland:
If blacks carried fishing rods and rifles, would more people be bothered by driving-while-black stops?
9.10.2009 6:25pm
glangston (mail):
ArthurKirkland:
If blacks carried fishing rods and rifles, would more people be bothered by driving-while-black stops?



A troll that actually has something to do with fishing. Excellent.
9.10.2009 6:31pm
Melancton Smith:
ArthurKirkland trolled:

If blacks carried fishing rods and rifles, would more people be bothered by driving-while-black stops?


Of course not, we racists! Besides, blacks don't fish and hunt, that is for crackers!
9.10.2009 6:33pm
arbitraryaardvark (mail) (www):
I don't think it's open and shut. What does Orin think?
Are these locations where there is a lot of illegal hunting going on? Is the search directly related to some game management purpose beyond a general interest in law enforcement? Edmond is a great case, one I followed closely.
Joell Palmer, the other plaintiff in Edmond, has been a client and roommate of mine. I first met him just after I'd been illegally searched at a drug roadblock at a hempfest where we were registering voters. But it's a case that's not too hard to distinguish.If the cops pretend they are checking for impaired driving, e.g., they can probably get away with a roadblock. Our Indiana state constitutional cases have also affected the use of roadblocks here. Does California use a lockstep approach or does it have its own search and seizure precedents? I would guess that the California program is probably unco., but not so clearly so that qualified immunity wouldn't be a factor.
9.10.2009 6:34pm
einhverfr (mail) (www):
I think the 4th Amendment though would only be implemented when they actually try to enforce a violation found at a roadblock.

I don't think merely stopping folk and asking them question in the absence of legal enforcement would be illegal but it would probably be more effective if done pre-emptively.

"We're just stopping you to remind you to hunt legally...."
9.10.2009 6:35pm
tdsj:
pre-dates Edmond, but see People v. Perez, 51 Cal.App.4th 1168, 1177 (Cal. Ct. App. 1996). Doesn't seem to be any subsequent case law noting that Perez has been overruled.
9.10.2009 6:37pm
ShelbyC:
Fools!! Don't the know they have to say it's a DUI checkpoint??? What are they teaching these guys??
9.10.2009 6:38pm
ShelbyC:
Whoops! Missed arbitraryaardvark's comment saying the same thing.
9.10.2009 6:39pm
Splunge:
This being California, the governments of which, large and small, are having extreme fiscal pain right now, I would file this under "Creative Revenue Enhancement Programs."
9.10.2009 6:46pm
OrinKerr:
I think I disagree with Eugene on this one.

There are cases on the use of roadblocks to enforce hunting and fishing laws, and courts have (as far as I can tell) upheld them. They generally reason that enforcing these laws is about protecting our natural resources, not just enforcing criminal law per se. These distinctions are subtle, to be sure, but Edmond is only one case among several; Illinois v. Lidster suggests that a strong law enforcement purpose doesn't necessarily trigger Edmond.
9.10.2009 6:51pm
ArthurKirkland:
I don't assume that people who refrain from objecting to driving-while-black stops are racist. It is far more likely they are ignorant and/or disinterested.

Between stopping blacks and stopping hunters, I am more concerned about the former.

Regarding the trolling charge, I was not aware that conservatives objected to criticism of driving-while-black policing. Seems odd, but good to know.
9.10.2009 6:54pm
GV:
To the extent that this post is intended to be a prediction regarding whether a court will hold that this roadblock "clearly" violates the Fourth Amendment, it's wrong. The problem with the professor's analysis is that he's questioning the legality of this roadblock in the abstract, trying to faithfully apply Supreme Court precedent. If you're a court, you're likely thinking about this in the context of a criminal case, where the road block has caught a criminal red handed. In that case, you just bend Supreme Court precedent to say the criminal does not go free. Thus, there shouldn't be much doubt that a court will hold that this roadblock is constitutional.

Indeed, less than a month ago, the Ninth Circuit already did just that. In United States v. Fraire, the court upheld a roadblock in front of a national park that was setup so that park officials could determine whether people were illegally hunting. The court held, in relevant part:

We hold today that a momentary checkpoint stop of all vehicles at the entrance of a national park, aimed at preventing illegal hunting — which is minimally intrusive, justified by a legitimate concern for the preservation of park wildlife and the prevention of irreparable harm, directly related to the operation of the park, and confined to the park gate where visitors would expect to briefly stop — is reasonable under the Fourth Amendment.

Obviously, the facts of that case are slightly different. But once this case appears in court with a criminal defendant, those facts will magically become immaterial!
9.10.2009 6:55pm
ShelbyC:

If blacks carried fishing rods and rifles...


Uh, am I missing something? I'm pretty sure they do...
9.10.2009 7:00pm
Soronel Haetir (mail):
Does it make a difference that this sort of activity has been going on forever?

Certainly where I lived in Idaho such things were routine, in fact one was usually set up just at the end of my driveway where the road Yd off into different paths up the mountain. It was a natural point for hunters to stop and compare their kills, and the Fish and Wildlife folks took full advantage of that. Completely voluntary, but also gathered info on how many animals were seen, where, etc.

You get far more information of that sort by asking people who are out there on a regular basis rather than have a couple people go out occasionally and try a more systematic survey.
9.10.2009 7:17pm
Mark N. (www):
It doesn't control in this jurisdiction, but in Oregon v. Tourtillott (1980), the Oregon Supreme Court held, 4-3, that game-law-compliance roadblocks don't violate either the 4th amendment or a similar provision of the Oregon Constitution (the U.S. Supreme Court denied cert).

The other existing caselaw seems to deal with cases where it's much more obvious that the people being randomly stopped to check for compliance are, in fact, likely to be hunters. For example, the Louisiana Supreme Court upheld (State v. McHugh, 1994) random stops of watercraft in hunting areas to check for compliance with waterfowl-hunting regulations.
9.10.2009 7:22pm
ArthurKirkland:

If blacks carried fishing rods and rifles...

Uh, am I missing something? I'm pretty sure they do...


Yeah, I noticed that as I hit "post." Should have been if all blacks carried fishing rods and rifles . . .
9.10.2009 7:32pm
ShelbyC:

Yeah, I noticed that as I hit "post." Should have been if all blacks carried fishing rods and rifles . . .


Believe me, I understand those types of errors :-).
9.10.2009 7:48pm
karrde (mail) (www):
I can only speak as a non-lawyer, and a resident of another state...

It is my understanding that game wardens can work under very relaxed rules of evidence that appear, on their face, to be violations of the 4th Amendment. I.E., if a game warden suspects a hunting violation occurring on private property, he is justified to enter the private property to investigate.

I do not know how well it is justified, Constitutionally.

I do know that in the Great Lakes State, the law stipulates the relaxed rules for game wardens; such laws are likely supported by court cases in the State's court system.
9.10.2009 8:20pm
Bruce Hayden (mail):
Does it make a difference that this sort of activity has been going on forever?
I agree. For years, the Wildlife people in CO would set up a checkpoint on I-70 east of Idaho Springs, and all hunters with game would have to exit and show they had the licenses to match the animals they had in (or often on) their vehicles.

I actually have less problem with this than with drunk driving checkpoints. Yes, they check licenses to game, but that is typically straight forward. Contrast this with the cops at the DUI checkpoints who are trolling for suspicious behavior. The hunters need a license in most states to have possession of dead game animals. No fishing there, and very straight forward.
9.10.2009 8:31pm
Mark N. (www):

Does it make a difference that this sort of activity has been going on forever?

To Thomas, at least, it seems to: his concurring opinion in Bennis v. Michigan (1996) suggested that forfeitures which might otherwise be unconstitutional were constitutional in large part because of "the history of forfeiture laws and 200 years of this Court's precedent regarding such laws" and "the historical prevalence and acceptance of similar laws". Perhaps his view on that subject is very narrow and wouldn't extend to any other areas, but it seems to be a component of his brand of originalism.
9.10.2009 8:41pm
arbitraryaardvark (mail) (www):
Does it make a difference that this sort of activity has been going on forever?
Dissenting in McInytre v Ohio, J. Scalia argued for a living evolving constitution, one in which rights expire if they aren't used in 50 or 100 years. He was saying (footnote 2)that disclaimer rules are ok cuz all 50 states had them. Actually 1/3 of those had only been passed recently, after they had already been ruled unconstitutional in Talley v CA.
Generally, that a practice has long standing carries some weight in deciding its constitutionality, and even more as to qualified immunity.
9.10.2009 9:33pm
pintler:

Does it make a difference that this sort of activity has been going on forever?


IMHE, those check stations don't stop all vehicles - they have a sign up that IFF you are a hunter who bagged a deer, you must stop for inspection. If you weren't a hunter, you didn't even slow down. I'm also not sure that law enforcement
was always the prime motivation, justification - I recall them wanting pheasant wings or deer teeth for population studies (although having a cow w/ an attached deer tag was frowned on). I'm not a hunter, so I'll defer to the hunters for those details, but we non-hunters weren't affected at all.
9.10.2009 9:47pm
Tim Nuccio (mail) (www):

I think the 4th Amendment though would only be implemented when they actually try to enforce a violation found at a roadblock.


Wrong. Stopping you is a seizure of your person. The 4th Amendment applies immediately.

I personally believe that all stops without reasonable suspicion are per se unconstitutional. If the case law demonstrates something different, we have a lot of work to do.
9.10.2009 10:15pm
Regolith:
Slavery had a pretty good run, too. That doesn't mean it was justified.

Using the length of time a law has been on the books is a specious argument, IMO. It's either justified or it isn't, regardless of how long it's been around.
9.10.2009 10:33pm
Dennis Nicholls (mail):
This topic raised a flag for me.

I was driving my Miata along in southern Canyon County, Idaho, two years back. Around a curve in the road there was a roadblock set up, and I had to stop. Turns out it was Idaho Fish &Game checking all vehicles for evidence of poaching. Well being a smart-alec I told the ranger, "well you caught me red-handed: I shot an elk and he's in the trunk". Those who know the Miata will realize the insanity of the claim. The ranger laughed and told me to move along.

Idaho is a 9th Circuit state. I wonder how this will pan out for the poaching roadblocks.
9.10.2009 11:09pm
Steve:
Prof. Volokh's argument that "the health of Americans" is a natural resource would be weak even for the comment section.
9.10.2009 11:57pm
Fub:
Steve wrote at 9.10.2009 11:57pm:
Prof. Volokh's argument that "the health of Americans" is a natural resource would be weak even for the comment section.
Which is what he meant, more or less.
9.11.2009 1:40am
DNJ:
GV: it really depends on what judges you get. In Fraire the defendant, unfortunately for him, got Judges Silverman, Clifton and Milan B. Smith - a pretty conservative and pro-prosecution/law enforcement panel. But I wouldn't mind betting that the result would have been different if he had got, say, Judges Pregerson, Reinhardt and Paez.
9.11.2009 2:54am
Gabriel McCall (mail):
perhaps there is no crisp line to be drawn here

Sure there is: no suspicionless searches or seizures. The problem is that once you stray beyond that line, there's no clear place to draw another one.
9.11.2009 9:27am
mj_az:
Are there any requirements for them to bring in dogs to conduct searches? I was stopped at a rural Border Patrol checkpoint in Southern Califonia in my jeep. After asking me where I was going and coming from which annoyed me they asked if they could search my backpack and duffle bag to which I said no. They then started calling in to have dogs brought in, so I asked how long that would take and they said over an hour. So, because they were threatening to ruin my morning I let them search but did give them a hard time (they were walking around with submachine guns and causing massive traffic delays). How is it not an unreasonable search and seizure? They were going to detain me with absolutely no probable cause, what are the tests for this? Also, having a man holding a submachine gun 'asking' you questions about where you are coming to and going from seems somewhat unreasonable in my book as well.
9.11.2009 12:30pm
pintler:

Are there any requirements for them to bring in dogs to conduct searches? I was stopped at a rural Border Patrol checkpoint in Southern Califonia in my jeep. After asking me where I was going and coming from which annoyed me they asked if they could search my backpack and duffle bag to which I said no. They then started calling in to have dogs brought in, so I asked how long that would take and they said over an hour. So, because they were threatening to ruin my morning I let them search


I have a relative in school in Missoula, MT. He is the outdoorsy type, and so is frequently traveling thru Yellowstone in a car full of like minded types. He reports that cars full of four college students in Yellowstone are routinely stopped and searched, using the 'you don't have to agree, but we'll detain you for hours until the dogs get here' line. I find it sad that he saw this as normal.

FWIW, I have heard of people saying 'no problem, I'll wait' and being immediately released, because the officer is bluffing - he doesn't want to set there for hours, either. If you say you're happy to wait forever, you can always change your mind whenever you get tired of waiting...
9.11.2009 2:57pm
ShelbyC:

FWIW, I have heard of people saying 'no problem, I'll wait' and being immediately released, because the officer is bluffing - he doesn't want to set there for hours, either.


I'd like to think such coerced consent would be problematic.
9.11.2009 4:02pm
mj_az:
Well, I frankly found the whole ordeal to be somewhat problematic.

They were openly very heavily armed, I have never been too fond of being questioned about where I'm going, and the dog thing. When I did consent after waiting about 5 minutes I began opening my bags and they clearly weren't that interested as by then I had politely but firmly let them know that I was frustrated from a civil rights position.

Once I was submitting they were confident nothing was in my bag and just wanted to have me go through the process for them.

When I told them I thought it wasn't right that they were trying to intimidate citizens by walking around carrying a submachine gun, the guy backed off and another guy with a sidearm started to deal with me so at least that's something I suppose.

Oh and I am college age - I'm 26 year old grad student so I don't know what to tell you about that.
9.11.2009 8:41pm

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