What are the Allowances for Search and Seizure for Game Wardens and Conservation Officers? What do They Need to Lawfully Search an Individual or Their Properties? Do They Always Need a Warrant?
In California, fishing and game wardens are generally allowed to come onto private property pursuant to the Open Fields Doctrine. The Open Fields Doctrine allows wardens to enter onto private property without a warrant. They can do this for the purpose of regulating and managing the “State-owned resource”, which is fish, game, and/or wildlife. The justification for the Open Fields Doctrine is that in the course of a warden’s patrols and administrative management, they often pass onto private property. If a warden needed a warrant every time they had to manage fish or wildlife on a private property, they would not be able to be effective in doing their jobs. They would lose the element of surprise and would also waste valuable resources pursuing warrants rather than just conducting standard administrative patrol.
However, entry into a residence is something that would typically require a warrant, absent some exception to the warrant requirement. So, fishing and game wardens can enter onto open lands, but they can’t necessarily enter into a residence without a warrant.
Can You Represent Yourself When Facing a Fish and Wildlife Violation?
Many people assume that if they are only charged with an infraction or even a misdemeanor by a fish and game warden, they can represent themselves against those charges without adverse consequences. The problem with that is that these charges often come with collateral consequences, especially if there is an admission of guilt. An experienced attorney can avoid these consequences altogether.
For example, let’s say a commercial fisherman is charged by a fish and game warden and pleads guilty without realizing the implications of doing so. A guilty plea, even for a relatively minor infraction, may result in the loss of fishing permits and/or commercial licenses. This could ultimately lead to a devastating blow to the fisherman’s business and livelihood.
A guilty plea to a misdemeanor or infraction may also result in substantial fines. I have consulted with individuals who learned that pleading guilty to taking a particular species of wildlife could result in a fine of up to $60,000. There are significant fines that many people are unaware of and may unwittingly incur if they plead guilty without representation.
Further, a guilty plea to a misdemeanor or an infraction could have immigration consequences for non-citizens, and could result in a loss or inability to retain a professional license.
As a rule, it is always best to consult with a qualified attorney before opting to represent yourself on a Fish and Wildlife charge.
Can a Game Warden Come on to Private Property in California?
Typically, a warden can come on to private property in terms of privately own lands. As I indicated above, this is pursuant to the Open Fields Doctrine, which enables wardens to do standard patrols.
Pursuant to the Open Fields Doctrine, a game warden may search the area outside of a home or property of the owner’s curtilage without violating the Fourth Amendment (no illegal search or seizure). However, barring very specific circumstances, the entry into a residence does require a warrant.
If Any Other Type of Law Enforcement Officer Comes onto the Property or Initiates the Investigation, is That Grounds for Having a Case Thrown Out?
This all depends on whether or not they enter a privately owned residence or building. If law enforcement officers come onto a private property without entering a residence or a building, there are no grounds for having an arrest thrown out. This is because there is statutory and constitutional precedent that allows Fish and Wildlife to regulate the state-owned resource (fish, game, and wildlife) which does not preclude them from entering onto private lands.
However, if any officers enter into a residence without obtaining a warrant, there is the possibility that you can have the case thrown out if it is based on an invalid search and seizure.
What Does the Lacey Act Prohibit?
The Lacey Act bans the trafficking in illegal wildlife, including plants. The Lacey Act makes it illegal to import, export, transport, sell, receive, acquire or purchase in interstate or foreign commerce any wildlife that was taken, possessed, transported or sold in violation of law. The Lacey Act pertains to wildlife whether alive or dead, as well as any egg or offspring thereof.
Who Enforces the Lacey Act?
The federal government enforces the Lacey Act through the US Fish and Wildlife Service. The Lacey Act applies to both state and federal lands, and is enforced by the federal government no matter where the violation took place. So, while the initial taking of fish, game or plants on state property may have only been a violation of a state law, once the wildlife is transported over state lines or into the country, it becomes a violation of the federal Lacey Act, which subjects you to higher fines and potential prison time.
There is also an international companion law to the Lacey Act known as CITES, which has been adopted by several countries. It helps ensure that the international trade in specimens, wild animals and plants does not threaten the survival of the species.
What are the Potential Penalties if Someone is Found Guilty Under the Lacey Act?
The Lacey Act involves both civil and criminal penalties. Civil penalties for breaking or violating the Lacey Act can result in fine of up to $10,000 per offense. Criminal penalties may result in up to $20,000 fine and 5 years in the prison. Any property used to illegally take the game or wildlife, including firearms and vehicles, may also be seized, and your hunting or fishing privileges may be suspended or revoked.