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On another active thread in this forum there is discussion about the 4th Amendment, Search and Seizure, and Probable Cause as it relates to Fish and Game enforcement activities. Some of the discussion revolves around are Fish and Game enforcement activities different or the same from other criminal law enforcement activities. The following five cases are interesting. Some of them involve only fish and game laws some involve other crimes that were discovered as a result of initial fish and game activities. The common theme is the defendant claimed that either the entire enforcement activity or the initial enforcement activity (which would have then "poisoned" the subsequent law enforcement activity) was a violation of their 4th Amendment rights. Without going through all the details and technicalities (as each case and decision is many pages long), there is an underlying theme to the court's rulings in most of these case which is that because hunting and fishing is a highly regulated activity those who participate in said activities have a lower expectation of privacy regarding those activities and since expectation of privacy is the key determining factor for a finding of unreasonable search and seizure, the reasonableness standard of the 4th Amendment is going to be applied differently. The only recommendation that I would make is that you read them carefully and look at not only the actual facts of the case but the opinion rendered by the court and the statements the court makes which then of course are used as case law in subsequent cases. The cases are: People (CA) v. Maikhio 2012 Minnesota v. Colosimo 2003 State (MT) v. Boyer 2002 People (CA) v. Perez 1996 State (SD) v. Halverson 1979 The Maikhio case was appealed to the US Supreme court who declined to hear the case. Happy reading! Mike Legistine actu quod scripsi? Never under estimate the internet community's ability to reply to your post with their personal rant about their tangentially related, single occurrence issue.  What I have learned on AR, since 2001: 1. The proper answer to: Where is the best place in town to get a steak dinner? is…You should go to Mel's Diner and get the fried chicken. 2. Big game animals can tell the difference between .015 of an inch in diameter, 15 grains of bullet weight, and 150 fps. 3. There is a difference in the performance of two identical projectiles launched at the same velocity if they came from different cartridges. 4. While a double rifle is the perfect DGR, every 375HH bolt gun needs to be modified to carry at least 5 down. 5. While a floor plate and detachable box magazine both use a mechanical latch, only the floor plate latch is reliable. Disregard the fact that every modern military rifle uses a detachable box magazine. 6. The Remington 700 is unreliable regardless of the fact it is the basis of the USMC M40 sniper rifle for 40+ years with no changes to the receiver or extractor and is the choice of more military and law enforcement sniper units than any other rifle. 7. PF actions are not suitable for a DGR and it is irrelevant that the M1, M14, M16, & AK47 which were designed for hunting men that can shoot back are all PF actions. 8. 95 deg F in Africa is different than 95 deg F in TX or CA and that is why you must worry about ammunition temperature in Africa (even though most safaris take place in winter) but not in TX or in CA. 9. The size of a ding in a gun's finish doesn't matter, what matters is whether it’s a safe ding or not. 10. 1 in a row is a trend, 2 in a row is statistically significant, and 3 in a row is an irrefutable fact. 11. Never buy a WSM or RCM cartridge for a safari rifle or your go to rifle in the USA because if they lose your ammo you can't find replacement ammo but don't worry 280 Rem, 338-06, 35 Whelen, and all Weatherby cartridges abound in Africa and back country stores. 12. A well hit animal can run 75 yds. in the open and suddenly drop with no initial blood trail, but the one I shot from 200 yds. away that ran 10 yds. and disappeared into a thicket and was not found was lost because the bullet penciled thru. I am 100% certain of this even though I have no physical evidence. 13. A 300 Win Mag is a 500 yard elk cartridge but a 308 Win is not a 300 yard elk cartridge even though the same bullet is travelling at the same velocity at those respective distances. | ||
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Mike Thanks for posting that. I must admit some of the reading is on the dry side but informative, I will put them on my list to read thru as I get time. Thanks again. | |||
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One thing you will notice, is that none of those cases involve Texas Game Wardens or Texas Laws!!! Even the rocks don't last forever. | |||
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For those who may or may not think, the cases do or do not apply in your state because they were in other states, you may want to research the concept called persuasive precedent where one court uses precedent set by another court in another jurisdiction to support its decision. State courts often cite other state's cases in their decisions. Mike Legistine actu quod scripsi? Never under estimate the internet community's ability to reply to your post with their personal rant about their tangentially related, single occurrence issue. What I have learned on AR, since 2001: 1. The proper answer to: Where is the best place in town to get a steak dinner? is…You should go to Mel's Diner and get the fried chicken. 2. Big game animals can tell the difference between .015 of an inch in diameter, 15 grains of bullet weight, and 150 fps. 3. There is a difference in the performance of two identical projectiles launched at the same velocity if they came from different cartridges. 4. While a double rifle is the perfect DGR, every 375HH bolt gun needs to be modified to carry at least 5 down. 5. While a floor plate and detachable box magazine both use a mechanical latch, only the floor plate latch is reliable. Disregard the fact that every modern military rifle uses a detachable box magazine. 6. The Remington 700 is unreliable regardless of the fact it is the basis of the USMC M40 sniper rifle for 40+ years with no changes to the receiver or extractor and is the choice of more military and law enforcement sniper units than any other rifle. 7. PF actions are not suitable for a DGR and it is irrelevant that the M1, M14, M16, & AK47 which were designed for hunting men that can shoot back are all PF actions. 8. 95 deg F in Africa is different than 95 deg F in TX or CA and that is why you must worry about ammunition temperature in Africa (even though most safaris take place in winter) but not in TX or in CA. 9. The size of a ding in a gun's finish doesn't matter, what matters is whether it’s a safe ding or not. 10. 1 in a row is a trend, 2 in a row is statistically significant, and 3 in a row is an irrefutable fact. 11. Never buy a WSM or RCM cartridge for a safari rifle or your go to rifle in the USA because if they lose your ammo you can't find replacement ammo but don't worry 280 Rem, 338-06, 35 Whelen, and all Weatherby cartridges abound in Africa and back country stores. 12. A well hit animal can run 75 yds. in the open and suddenly drop with no initial blood trail, but the one I shot from 200 yds. away that ran 10 yds. and disappeared into a thicket and was not found was lost because the bullet penciled thru. I am 100% certain of this even though I have no physical evidence. 13. A 300 Win Mag is a 500 yard elk cartridge but a 308 Win is not a 300 yard elk cartridge even though the same bullet is travelling at the same velocity at those respective distances. | |||
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Dave, To save you a little time and since the cases focus on different things: People (CA) v. Maikhio 2012 deals with stopping vehicles without probable cause of a violation but proximity to hunting fishing locations and the time element related to the hunting and fishing activities. While the case did involve a probable cause search, the court's summary opinion makes it clear they would have also allowed a no probable cause "inspection" of the vehicle and its contents aka a search. Minnesota v. Colosimo 2003 deals with the lack of expectation of privacy and searches without probable cause of areas within a boat typically used to transport fish. State (MT) v. Boyer 2002 similar to the Minnesota case but specifically discusses searches without probable cause of boats and closed fish wells. People (CA) v. Perez 1996 not a very interesting case but deals with fish and game check points and their consitutuionality. State (SD) v. Halverson 1979 deals with fish and game check points and whether ordering vehicles to stop when there is no probable cause of violation or participation in hunting or fishing activities is constitutional. The Maikhio and Boyer cases were the most interesting to me. Mike Legistine actu quod scripsi? Never under estimate the internet community's ability to reply to your post with their personal rant about their tangentially related, single occurrence issue. What I have learned on AR, since 2001: 1. The proper answer to: Where is the best place in town to get a steak dinner? is…You should go to Mel's Diner and get the fried chicken. 2. Big game animals can tell the difference between .015 of an inch in diameter, 15 grains of bullet weight, and 150 fps. 3. There is a difference in the performance of two identical projectiles launched at the same velocity if they came from different cartridges. 4. While a double rifle is the perfect DGR, every 375HH bolt gun needs to be modified to carry at least 5 down. 5. While a floor plate and detachable box magazine both use a mechanical latch, only the floor plate latch is reliable. Disregard the fact that every modern military rifle uses a detachable box magazine. 6. The Remington 700 is unreliable regardless of the fact it is the basis of the USMC M40 sniper rifle for 40+ years with no changes to the receiver or extractor and is the choice of more military and law enforcement sniper units than any other rifle. 7. PF actions are not suitable for a DGR and it is irrelevant that the M1, M14, M16, & AK47 which were designed for hunting men that can shoot back are all PF actions. 8. 95 deg F in Africa is different than 95 deg F in TX or CA and that is why you must worry about ammunition temperature in Africa (even though most safaris take place in winter) but not in TX or in CA. 9. The size of a ding in a gun's finish doesn't matter, what matters is whether it’s a safe ding or not. 10. 1 in a row is a trend, 2 in a row is statistically significant, and 3 in a row is an irrefutable fact. 11. Never buy a WSM or RCM cartridge for a safari rifle or your go to rifle in the USA because if they lose your ammo you can't find replacement ammo but don't worry 280 Rem, 338-06, 35 Whelen, and all Weatherby cartridges abound in Africa and back country stores. 12. A well hit animal can run 75 yds. in the open and suddenly drop with no initial blood trail, but the one I shot from 200 yds. away that ran 10 yds. and disappeared into a thicket and was not found was lost because the bullet penciled thru. I am 100% certain of this even though I have no physical evidence. 13. A 300 Win Mag is a 500 yard elk cartridge but a 308 Win is not a 300 yard elk cartridge even though the same bullet is travelling at the same velocity at those respective distances. | |||
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I haven't yet read any of them, but the Boyer case would be quite relevant in AZ. We have a law here that makes it illegal to transport ANY live fish other than legal bait minnows. Thus our wildlife managers are legally allowed to examine a trailered boat's livewell(s) for such. When I get some spare time, I plan to look at the other cases. Thanks for the informative posts you added to the other thread and this one, as well. Tony Mandile - Author "How To Hunt Coues Deer" | |||
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one of the first things they teach you in law school is to look for cases setting a precedence on the case. you use that ruling to persuade the judge your client is in the right. rarely is the state the case was held in referenced except to look it up for further study. the ruling itself and the judges comments on the case are what is looked at, and then the laws in the state where the case is being held are compared. | |||
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