Ocean Beach Pier in 2007.
U.S. Supreme Court move backs game warden power over OB Pier fisherman
By Denny Walsh / Sacramento Bee / March 6, 2012
The claim of an unconstitutional search by a San Diego fisherman who got caught with an out-of-season lobster was rebuffed Monday by the U.S. Supreme Court.
In denying review, the high court let stand a California Supreme Court opinion in June that people who hunt and fish have fewer of the privacy rights guaranteed by the U.S. Constitution’s Fourth Amendment.
The state high court granted game wardens the authority to stop, question and search citizens without a warrant or even without probable cause to believe a law has been broken.
All the warden needs, the California court ruled, is knowledge that a person is or has been fishing or hunting.
The need to protect wildlife for future generations outweighs the comparatively minor intrusion on a citizen’s Fourth Amendment protection against unreasonable search and seizure, wrote state Supreme Court Chief Justice Tani Cantil-Saka
Unidentified fisherman on OB Pier, 2007.
The opinion overturned rulings by two lower courts.
On a mid-August night in 2007, Warden Erik Fleet, using a telescope from 200 yards away, was watching people, including Bouhn Maikhio, fishing off the Ocean Beach pier in San Diego. When Maikhio left, Fleet stopped his vehicle about three blocks from the pier.
Maikhio denied having a catch, but Fleet found a California spiny lobster in a bag in the back seat.
Fleet later testified he had no reason to suspect a violation of the law when he made the stop.
Maikhio was charged with possessing the lobster out of season and failing to exhibit it upon demand, both misdemeanors.
Represented by public defenders, he moved to suppress evidence. The National Rifle Association joined his lawyers in seeking review at the highest court in the land.
The revived prosecution will now return to San Diego Superior Court for further proceedings.
{ 5 comments… read them below or add one }
I’ve you go out on that pier or any other often enough, you’ll see poaching and very little CFG enforcement.
Just like a broken watch is correct twice a day, The Roberts Court made the right choice this time.
real fishermen have no sympathy for guys like this …
No, I have no sympathy for a guy like this, but I do wonder if the California court or SCOTUS has any sympathy for the Constitution. I see nowhere in the 4th Amendment that says “except for fishing”. This sets a very dangerous precedent. What next? No protection for people driving, for using the mails? for walking on the sidewalk? This is just so wrong.
Lee this happens OFTEN on the water and waterways…When you are in a boat on the bay with fishing lines in the water it is a good assumption you are fishing….and sometimes you get checked for fish (DFG) and safety ( harbor police or coast guard) on your boat…..
Something’s missing from this story, like how did the warden even know the guy driving the truck had been fishing? does he randomly stop vehicles that merely fish?
Why didn’t this person throw back the illegal catch?