[alanw]

Originally Posted by jorluivil

Why would you want to put yourself in a position where they will say they have probable cause? Before you know it the local police show up and start doing a field sobriety check. Is that really worth it?


When I owned a boat I was boarded by the USCG and DFG several times, not once did I refuse a search or did I even think to refuse. As a matter of fact, I always encouraged it and asked them to check whatever they wanted to check. Why? It's quite simple....................I had nothing to hide.

I had nothing to hide either but that's not the point.. refusing to consent does not give them probable cause, and I should not have waived my rights. What if he decided to question the empty beer cans in my cooler, or if he found a kilo of weed that the last guy who owned my yak hid in there..

Originally Posted by bubblehide

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.

Agree with most of what you said, even though CA FGC 856 says that they need probable cause that you committed an offense in order to search without consent. The fact that you've obviously been fishing doesn't mean that you have done something illegal.That said, I just read about the Maikhio vs. California case which says they can stop and question you if you are leaving a hunting/fishing area. It's bad for everyone because the warden had probable cause to stop the vehicle in that case (he witnessed the poaching), but the court decision lets them stop any vehicle now, probable cause or not? It's yet another clear violation of civil liberties, in the name of a "higher cause" (conservation).

I guess we should accept that participating in a highly regulated activity like fishing or hunting comes with heightened scrutiny, regardless of the 4th.