California Court of Appeal Smacks Down Fish and Game Warden Over OB Pier Lobster Catch
theNewspaper.com/ January 8, 2010
The California Court of Appeal for the Fourth District on Tuesday ruled that a state agency may not pull over and search a motorist on a mere hunch that a lobster might be hidden in the vehicle. The court considered the case of Bounh Maikhio, a motorist stopped by Department of Fish and Game Warden Erik Fleet on August 19, 2007 at 11pm. That evening, Fleet had been spying through a telescope on the Ocean Beach pier in San Diego when he saw Maikhio put something into his bag.
Fleet testified that he did not “necessarily” suspect Maikhio of a crime because he had no way of knowing whether the man had been fishing legitimately or not. Regardless, Fleet waited until Maikhio had driven away from the pier to stop him. While searching through his car. Fleet found Maikhio’s bag, which contained a spiny lobster. Maikhio was handcuffed and cited for lobster possession during closed season.
The case is of particular interest because California Attorney General Jerry Brown argued that a state warden has the right to stop any driver “without reasonable suspicion that he committed any crime.” Maikhio, in contrast, could not afford to hire an attorney and was represented by the public defender’s office which argued no such authority existed. The appeals court agreed, citing a 1944 attorney general’s ruling. The court argued that wardens could enforce the law without harassing motorists.
“It may be fairly implied from sections 1006 and 2012 that a DFG warden generally has the implied power 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,” Justice Alex C. McDonald wrote for the majority. “However, contrary to the people’s conclusory assertion, it cannot be fairly implied from the DFG’s express statutory powers that its wardens have the power to stop a specific vehicle on a public street and detain its occupants to make a section 2012 demand and conduct a section 1006 inspection.”
The court went on to explain that because the warden had no individualized suspicion that Maikhio had been involved in criminal activity, the stop was just as unconstitutional as setting up a roadblock to search every passing vehicle for lobsters.
“Although the people argue Fleet’s method of using a spotting scope to observe fishing activity and then stop vehicles on public streets to check compliance with fishing laws and regulations is the most effective means of promoting the government’s interest in protecting fish, the fact that a certain method of promoting a government interest is the most effective does not necessarily make it reasonable under Fourth Amendment, particularly if a less intrusive method exists,” McDonald explained.
Justice Patricia D. Benke disagreed, arguing that Constitutional protections do not apply to motorists who may also be hunters or fishermen.
“Because of the highly regulated nature of hunting and fishing and the consequent diminished expectation of privacy of hunters and fisherman, there is no requirement in our statutes or under the Constitution that a game warden believe that any crimes have been committed or that any game regulations have been violated before exercising his or her powers of inspection,” Benke wrote in her dissent.
A copy of the decision is available in a 90k PDF file at the source link below.
Source: 
California v. Maikhio (Court of Appeal, State of California, 1/5/2010)
{ 4 comments… read them below or add one }
Court of Appeal Justice Patricia Benke is one of the most conservative, right-wing people on our local court of appeal. She never saw a traffic stop by police that she didn’t like.
Just a note: American citizens are guaranteed Fourth Amendment protections against unreasonable searches and seizures. Even a motorist has them to a certain extent – there must be probable cause to allow a traffic stop. However, these protections have been whittled away by judges over the decades, judges appointed by right-wing Presidents like Nixon, Reagan, the Bushes – more argument why we need more liberal presidents and a well-informed electorate.
Agreeing to Anon Attorney – I also have witnessed our rights being washed down the toilet by conservative judges and justices. People who are not directly involved or have not had their rights squashed in court, on the road, or in their home, don’t realize the differences between liberal and conservative judges and the power they have, and hence the power that those who appoint them (Presidents) have. It’s not liberal to believe in the Bill of Rights or the Constitution. This is one very significant difference between a McCain/ Bush / Reagan types and more liberal libertarian or Democrat types of head executives.
If you take a short bug and get caught you deserve the fine. If you take a short bug and dont get caught you are still wrong and a jackass and have no respect for the ocean or what it gives us. I dislike people who do that…….they ruin what we have….and its wrong.
fish guy – it’s true that the alleged lobster poacher may have been guilty of poaching “a short bug”, but the warden broke the law in enforcing the law. Motorists still have some rights – whether they’re hunters or fishers or vegetarians – despite what justice Benke says – and it’s illegal for any type of law enforcement (wardens included) to stop a motorist without probable cause that a crime is being or has been committed and the suspect is involved in it. Here, the warden only had a hunch – a hunch does not rise to the level of “probable cause.”
Police cannot illegally and un-Constitutionally search and seize people, and the courts punish them once in awhile for doing that by suppressing the evidence that was seized in the illegal action. Here, the “short bug” was the evidence.
I agree with the lawyers above who chimed in – the Fourth Amendment has been stripped and torn enough.
A famous jurist once said that it was better for 10 guilty suspects to get away than for one not-guilty person to go be found guilty and punished with jail or prison.
Oh, BTW, thanks a lot AG Jerry Brown (if I read the article right) – I thought a liberal like you would at least stand up for the Fourth Amendment.