Quote:
Originally Posted by alanw
... I should have refused the search now that I think of it. L...  |
Clearly some here do not understand how F&W laws work. But before I get into that, allow me to say this: In grade school we are taught that we are innocent until proven guilty. Although this is true when it comes to most crimes, it is not always true. It is true for crimes against people, traffic laws and such. However, try tell the IRS that THEY must prove that you are guilty, and see how far you get.
So Back to F&G (F&W) regulations/laws. They are Prima Facie laws. Prima facie means the burden of proof falls on the defendant (me or you) to prove that you are not guilty - the State's case is proven by the circumstances. In this case,
I am guilty until I can prove my innocence.) So in short if you are or have been fishing, or even look like you have been fishing, i.e., have fishing equipment, then probable cause is not needed to conduct a search. The Warden (not a cop) has the legal right to search you, and your yak, car, equipment... WITHOUT your permission.
Further more, the warden has no obligation to question the fisherman. There is a huge difference here, when a cop questions you, he is attempting to establish guilt. When a Warden questions you, he is trying to eliminate guilt, because the F&W laws already ASSUMES your guilty. So if the Warden happens upon you, out on the water, or loading up, driving down the road going home... the fisherman is guilty until he proves himself innocent. No apparent crime need be suspect, the fact that you appear to have engaged in fishing is enough, under the law. A diligent Warden will take the time to attempt to establish innocence or guilt; however he/she is not obligated to do so; so when they do, it could be viewed as doing the legal hunter/fisherman a favor, of sorts. As such, anyone hunting or fishing assumes the risk, and responsibility of proving themselves innocent.
I am going to repeat myself a bit here:
Prima Facie is why, when a person is, has, or appears to have engaged in hunting or fishing, while out in the field or not, a Warden is not required to obtain a warrant to search. The act of hunting or fishing or appearance of, is sufficient, under the law, and guilt is ASSUMED until no evidence of guilt is obtained. When a Warden asks a hunter of fisherman if they mind him/her searching.... when it is obvious they were hunting or fishing, it is a simply a courtesy. The reason for this is that wildlife has no voice. There are no family or bystanders to file a complaint, unless observed by a person willing to report the crime. These crimes (poaching) are often conducted in out of the way locations, remote locations, or under the cover of night, making reporting unlikely. Thus, our F&W regulations, Prima Facie regulations are prima facie regulations/laws to protect our wildlife from unscrupulous people, and we legal hunters and fisherman have the responsibility to accept the fact that we are guilty until proven innocent.
I get that it's counter intuitive, sine we all have been taught as children, that in the U.S. we are innocent until proven guilty. And, with most of our laws, that is true; but not all.
We do however have the right to remain silent. But this is one area where remaining silent may not be to your benefit when you are presumed guilty to begin with. And, yes, like cops, Wardens ask entrapment questions; just like the last time I got pulled over. The cop asked me, who were you talking to on your cell phone. My response, a suicidal client officer. his next question, do you have a business card. I produced a business card, told him to keep it in case he ever needed it. he laughed and said, have nice day.