Court ruling makes MN DNR's job more difficult

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Court ruling makes DNR's job more difficult

Dennis Anderson, Minneapolis Star Tribune

Jul 28, 2002  

Last week, the state Appeals Court ruled that Minnesota anglers (and, by extension, presumably, hunters) don't have to allow conservation officers to arbitrarily check their boats and catch.

In the case of a northern Minnesota angler who was cited for refusing a conservation officer's request to display fish he had caught, the court said boaters are entitled to the same protection from searches as drivers. A conservation officer must have probable cause to believe a crime has been committed in order to search a boat without a warrant or the owner's consent, the court ruled.

Vehicle owners have a reasonable expectation of privacy under the Fourth Amendment, the court ruled.

The decision follows closely a similar ruling earlier this year that said conservation officers don't have the right to enter ice-fishing houses, absent probable cause or permission from the owner. That decision has been appealed.

In the interview below, Department of Natural Resources enforcement division director Bill Bernhjelm argues that the most recent decision is misguided, in that it will make enforcement of the state's fish and game laws more difficult and perhaps less effective.

Q: Were you surprised by the Appeals Court decision?

A: Yes. Once we looked at it, we understood how the court arrived at its decision. Still, we don't agree with it. And we don't agree with the court decision earlier this year regarding fish houses and privacy, either. The two are connected in that they both give priority to hunters' and anglers' presumptions of privacy in cases where our conservation officers have believed, according to a state statute, that they had authority to check those people and any game they might possess.

Q: In the most recent case, a conservation officer asked an angler, who happened to be a lawyer, to show him any fish he might possess. The angler was located at Kettle Falls, between Rainy Lake and Namakan Lake, so he was essentially "stopped," meaning the officer did not have to stop the boat to check the angler. Still, why should a conservation officer have the right to check someone when the officer has no suspicion of illegal activity?

A: When I was police chief in Edina, our officers worked under the traffic code and the general criminal code. But in the regulation of licensed activities such as hunting and fishing, we have long believed we have some greater authority to approach people who are participating in those activities.

Someone can walk down a public street and generally be free of interference from the government. But they don't need a license to walk down the street. Many, many years ago it was recognized that to manage the state's natural resources properly, the harvest of fish and game in particular must be limited.

In the 1800s, there were no hunting and fishing regulations, and market hunting flourished. But when various species were depleted, it was widely understood that a system of controls were needed.

Thus, a person today needs a license to fish and hunt and we believe people who purchase those licenses do so voluntarily and subject themselves to greater scrutiny in the interest of conservation. The Minnesota Legislature gave us this authority. They placed specifically in statute the requirement that hunters and anglers, if asked by a conservation officer, must display any game they have. That's what the angler in this most recent decision refused to do, and he prevailed when the court said, essentially, that the statute was unconstitutional.

Q: Don't police officers enforcing the traffic code need probable cause to believe a law is being broken, or at least reasonable suspicion that a law is being broken, to pull over a vehicle and driver? Why shouldn't conservation officers, at least philosophically, be subjected to the same standards when pulling over a boat?

A: Reasonable suspicion of a violation is needed to stop a car or boat in Minnesota -- it's been that way for quite a while.

Consider for a moment the DWI area of the law. To stop a driver suspected of being under the influence, an officer doesn't necessarily have to see a vehicle cross a centerline. Perhaps instead the vehicle is going too slow, or maybe it's weaving within a lane. Maybe a window is down and the radio is turned way up. In some instances these could be used as reasonable suspicion or probable cause to make a stop.

In reading this most recent decision, the standard the court seems to want to apply in the area of making stops of hunters and anglers is probable cause, which is higher than reasonable suspicion. Absent the presence of probable cause, the court said there is an expectation of privacy, even among licensed hunters and anglers.

But again, we disagree, and we point to examples such as drivers licenses. When you are granted a license, you are consenting to supplying a sample of your breath or your blood to an officer if he or she asks for it. If you refuse, you can be jailed and your license revoked.

Q: Historically in Minnesota, the practice by conservation officers of stopping hunters and anglers to see "what they've got" is widely practiced, right?

A: It's the core of our work. To expect our officers to have to observe a violation before we can check would be, and will be, a real burden. We have 1.6 million licensed anglers in the state and 15,000 lakes -- and only 137 field officers. So it's a function of time. Can we afford the time to sit in a blind observing duck hunters or anglers to establish a suspicion of a crime before we check their bags? Or are we more efficient in the use of our time to enforce the state's fish and game laws by being allowed to make our traditional checks?

Q: Tell us about road checks the State Patrol has conducted in the past, say on New Year's Eve, to check for drunk drivers.

A: The DWI "road blocks" are no longer permitted in Minnesota, due to court decisions. Some other states permit them. Minnesota no longer does.

Q: How is it, then, that DNR conservation officers regularly establish similar road blocks to check bags of suspected hunters and anglers?

A: Frankly, since the fish house case was decided earlier this year, we haven't done them. In the past, we used them carefully. If you had a hot bite on Lake of the Woods, for example, we'd use them on a road leading from the lake. What we'd do is stop traffic, or slow it, and pull out people who looked as if they had been fishing. Perhaps they were pulling a boat. The stops were fairly effective. We'd find between an 18 and 25 percent violation rate.

This and similar tools help keep people honest. Just seeing us out there, working, is enough for most people.

Q: Isn't the DNR also conducting stops of boaters to check for milfoil and other exotics on their trailers or in their boats?

A: There's a distinction here. Most of those checks are done at boat launches, where vehicles and boats already are stopped. So we're not "stopping" someone to conduct a check. But in those instances where we did conduct road checks for milfoil by stopping people, we probably won't be doing those any longer.

A unique part of this most recent decision pointed us to a case in the traffic area. That case is called Gray Eagle, and it involved what cops generally refer to as "Whiskey" plates. There's a special coding on Minnesota license plates that starts with a "W." It's not noticeable to the general public, but, when the plates were first developed, there was a construct of opinion that anyone driving a vehicle with them could be stopped at any time.

One time an officer made such a stop, and the driver in fact had had his license revoked. From the outset, the officer acknowledged he made the stop based on nothing other than the license plate. The case was appealed up, and the driver prevailed. Subsequently, the Legislature changed the law and made it very explicit what rights a driver gives up when taking that plate. Now officers can stop vehicles bearing those plates knowing they won't ultimately lose a case based on the stop alone.

In the most recent case involving the angler, the court pointed us in that direction, which might mean we will seek a legislative change to the current law regarding people holding hunting and fishing licenses.

Keep in mind, however, that the "fish house" case, which was ruled on by the same court of appeals, has been appealed to the state Supreme Court, and a decision is expected in the near future. We're waiting for that. If we get a favorable decision, perhaps we won't tinker with the current law. If we don't get it, we'll go to the Legislature and seek a revision of the law probably along the lines of implied consent -- as in the case of Gray Eagle, and also in the case of drivers who, by taking a driver's license, consent to having their blood alcohol checked in certain instances.

Our point to hunters and anglers is that they're paying the state for a license, and by doing that, they are consenting to random stops and bag checks. The same should be true, we believe, of fish-house checks. Anglers who purchase fish-house licenses, under provisions of a revised law, would be consenting to allowing us to enter their fish houses to check bags, licenses and so forth.

Q: Meantime, what is your plan?

A: We're going to do our best. And we'll be asking hunters and anglers to grant us voluntary inspection of their bags.

Q: But can you stop them in the first place to do that, if your officers don't have reasonable suspicion or probable cause?

A: In the "traffic" context, there is fundamental difference in a boat or car responding to an order to stop, and a boat or car already being stopped.

We don't stop people unless we have probable cause or reasonable suspicion. If a boat is trolling, we'll pull up next to it. If a guy is jigging in a boat, and he's already stopped, that's a different case.

Q: You're saying you have to have probable cause to stop a moving boat, even if an officer's only intent is to check a license?

A: Yes. We can approach, and we can ask them to stop.

Q: But they don't have to stop.

A: No. They can decline. But it all depends on the situation. If an officer sees that life jackets are not readily available, they're going to ask the boat to stop. But unless we have reasonable suspicion of something wrong in a boat, we're not going to tell them to stop. Now if the boat is already stopped, we can engage in conversation with them all day. We can ask to see the fishing licenses, the life jackets, whatever, assuming the boat is previously stopped.

I know this is complicated. But if someone is involved in a licensed activity, we're going to approach, and we're going to ask to see the licenses and the bag. If they choose not to stop their boat to show us and we don't have probable cause or reasonable suspicion, we're not going -- giving the recent court decision -- to be able to charge them with refusing to show us. At least not on the bag part of it. They still have to show us their licenses. If they want to hold them up while the boat continues to move, they can do that. But if we see anything about the license that causes suspicion, we can ask -- tell -- the anglers to stop the boat.

It's important to remember that the only reason we need to approach someone is that we have reasonable grounds to believe they're involved in a specific activity, in this case hunting and fishing.

Q: What about U.S. Fish and Wildlife Service agents, officers from the National Park Service and others. Are they affected by this court's decision?

A: They're applying federal code. So they're not really affected by this. At least not yet. That's not to say they won't be challenged in federal court by someone using the same argument.

Let me be clear: Some folks want to characterize this as cops against law-abiding citizens. That's not what it is. Minnesota covers 88,000 square miles and the DNR has 137 field officers.

For some people, to be motivated to obey, there needs to be a credible threat to being caught. That's what we hope to represent.

It's also important to remember that, in particular, we're concerned about the ability of the DNR fisheries division to manage the state's fisheries. Especially in the area of experimental regulations, where specific regulations are put in place to manage the harvest in a certain way, if that harvest isn't managed that way -- if there isn't compliance -- the management of that resource isn't effective.

Mille Lacs is one such case. But there are many others. If our officers aren't able to enforce regulations that are in place, that creates other inefficiences in the system and the resource could suffer.
 

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