Suppose You Meet a Game Warden in the Field…
James Swan 02.27.13
In 1967, riots broke out in Detroit when police raided an after-hours drinking club–a “blind pig.” Fires soon broke out everywhere, gunshots continually echoed through the city, and police from around the state, and troops from the National Guard and the 82nd Airborne Division were brought in to regain control of the city. At the conclusion of five days of rioting, 43 people were dead, 1,189 injured and over 7,000 people had been arrested.
As a Graduate Research Assistant at the University of Michigan Institute for Social Research, I was part of a team sponsored by the Kerner Commission on the Causes and Prevention of Violence, which was sent into the city to interview people to determine why the city had erupted into violence and what could be done to avert future riots. One of the common complaints we found was that there was little trust between the people and the police.
Two years later I was invited to work with Detroit Police Commissioner John Spreen on improving police-community relations. One of the recommendations made was getting officers out of their patrol cars and onto the street and interacting with people in ways that built trust. One tactic was to do patrols on bicycles. Police athletic league sports programs were set up. Another strategy was to train officers in environmental pollution control law so they could respond to complaints that otherwise would have been public health complaints, for frankly the public health department was reluctant to go into some areas that had the worst air pollution and trash removal problems.
An issue that was a hot button then, and still is today, is when does a police officer have the right to search someone and seize property? This, I learned, was determined by the Fourth Amendment, which states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
You probably have heard about search warrants and probable cause from watching crime procedurals on TV. Do you know how those laws apply to game wardens?
Twenty years later I was living in California, which incidentally has the best waterfowl hunting in the U.S. Up to three million ducks and almost a million geese winter in the rice fields and wildlife refuges in the Sacramento Valley every year. Most of the land, however, is private. Getting access to a place to hunt in the Sacramento Valley is the challenge, as the refuges are really the only affordable place to go for the average hunter. Access to the refuges is determined by reservations. If you don’t get drawn for one of the refuges, and your chances of doing so may be as great as one in a thousand or more depending on the day, you can always wait patiently in line (called the “sweat line”) at the check station, watching clouds of birds buzz by overhead and listening to the constant staccato of shotguns trying to bring them to earth.
On one December day I had waited in the sweat line until some hunters left the refuge and my number was called. I eagerly drove out into the marsh, parked, loaded up my marsh cart with decoys, pulled on my waders, and began walking as fast as I could for my assigned blind. As I was exiting the parking area, a game warden stepped out of his patrol truck, approached me, and asked to see my license. I had to show my license at the check stand to qualify for the draw, and I did, along with my driver’s license–which meant a check to be sure it really was my license. Then he asked to see my gun to check if there was a plug in my Remington 870 pump that limited me to three shells. Okay, I handed him my gun and I passed that test.
I was about to head out when he said, “I’d like to check your backpack to see if you have only 25 shells,” which if the maximum number you can carry into the field at the refuge. It is supposed to help discourage sky blasting.
Before I could say “yes,” he reached into my backpack was pawing around. Wouldn’t you know it, he found two extra shells from a previous hunt that had somehow got stuck under gear way in the bottom of the pack.
I quickly explained that I was a Hunter Education Instructor (I showed him my card), and certainly was not trying to break the law. He in turn, told me to take them back to my car, and I would not receive a citation, which I promptly did.
The whole search rattled me, and as I walked out into the marsh I began to realize that the search of my backpack and my shotgun had been performed without a search warrant, and come to think of it, I never did give him permission to search my backpack. According to what I had learned in my work with the Detroit Police Department, this had been an illegal search. And, as I had noted his name on his shirt, when I got back in, I called the Department of Fish and Game to lodge a complaint. If that warden had been a Detroit police officer, I knew he would have lost his badge.
I soon learned was a lesson that all hunters and anglers should be aware of. Because of the nature of the work of their work, which involves working alone in wild places far from towns, regularly performing compliance checks, and the difficulty in getting a search warrant in time to deal with every contact they make in the field, game wardens in most states have extended search and seizure powers.
Why do game wardens have more search powers? The reasoning goes like this. Fish and game are public property. Unless you have stocked a lake with your own fish, planted raised game birds, or have a fenced enclosure where you have deer, wild boar, or other game animals that you have raised for hunting, wild animals are governed by the state and federal government. So, if a game warden suspects that you may be hunting or fishing illegally, he or she can come onto your land and conduct an investigation and it’s not trespassing.
Compliance checks in the field also come with special powers. As you have supposedly purchased a license to hunt or fish legally, the warden can ask you to show that license, as well as accompanying identification. If you cannot prove who you are, you could be hunting or fishing with a fake license. And because you are supposed to follow the law, such as carrying no more than the limit of shells, or using barbless hooks and so on, you can legally be searched without a search warrant because of what is called “exigent circumstance.”
That wardens have extended search powers can be source of conflict if you don’t know this. A few years ago in Wisconsin, a Hunter Education Instructor who had been teaching for 14 years was found to be telling his students that wardens had no such special powers of search and seizure, and students should not hand over their firearms to wardens for inspection and they should order them off private property when they do not have a search warrant. When it was discovered what he was teaching, he was asked to stop teaching this and alert all his former students to this error. When he would not follow this directive, his Hunter Education credentials were revoked.
Wisconsin Hunter Education not only dismissed the instructor, but the state Hunter Education Administrator Timothy Lawhern followed up with a letter to all the instructors’ former students that informed them to always follow the commands of a law enforcement officer, no matter the circumstance and even if it meant giving the officer the firearm and not blocking them from entering private property without a search warrant or probable cause.
The incident made the national news as it spotlighted the fact that game wardens have search and seizure powers that no other law enforcement officers have.
I checked in with Timothy Lawhern in Wisconsin, who is not only a game warden, but also the former President of the International Hunter Education Association, and the administrator for Hunter Education for the Wisconsin Department of Natural Resources. I asked Tim if anything had changed in the nearly four years since that incident. His reply was, “No change from how we have done business for many years. The issue in Wisconsin a few years ago came from a disgruntled dismissed Hunter Ed volunteer instructor. Bottom line is he was wrong.”
If you want to know what wardens can and can’t do in your state make sure you check, as unfortunately this is not always taught in Hunter Education classes, and there are no fisherman education classes. The law in Louisiana, for instance, states:
…any commissioned wildlife agent may visit, inspect, and examine, with or without [a] search warrant, records, any cold storage plant, warehouse, boat, store, car, conveyance, automobile or other vehicle, airplane or other aircraft, basket or other receptacle, or any place of deposit for wild birds, wild quadrupeds, fish or other aquatic life or any parts thereof whenever there is probable cause to believe that a violation has occurred. Commissioned wildlife agents are authorized to visit or inspect at frequent intervals without the need of search warrants, records, cold storage plants, bait stands, warehouses, public restaurants, public and private markets, stores, and places where wild birds, game quadrupeds, fish, or other aquatic life or any parts thereof may be kept and offered for sale, for the purpose of ascertaining whether any laws or regulations under the jurisdiction of the department have been violated…
So if you meet a game warden in the woods when you are hunting, what do you do if he asks to see your gun? Don’t start ejecting shells from the gun. It makes you look like you are trying to hide something, and it could even be dangerous. Ask what you should do. The warden should treat you courteously, but he or she has the right to search. Both parties should show each other proper respect and everything will unfold as quickly as possible.
And who knows, because the warden spends more time in the field than you probably do, he or she may have some tips about where you are most likely to be successful.
James A. Swan, Ph.D is the Co-Executive Producer of the hit reality National Geographic Channel TV series "Wild Justice"; Producer of the 66-minute documentary "Endangered Species: CA Fish and Game Wardens", as well as the CEO of Snow Goose Productions, LLC, that produces documentaries, book trailers and commercials. James is the author and/or co-author of 10 award-winning non-fiction books about environmental psychology published world-wide in four languages, including two Book of the Month Club selections and Sustainable Futures Society award-winning Nature As Teacher and Healer; and one novel. James has published over 300 articles in major magazines. Prior to the Outdoor Hub he has been a columnist for ESPNOutdoors.com (10 years), and National Review Online (4 years). He has taught at the Universities of Michigan, W. Washington State, Oregon and Washington; consulted with federal, state and local natural resources and law enforcement agencies and lectured all across North America, and in Japan and the UK. As an actor, he’s appeared in 20 feature films including "Jack", "Murder In The First," and “Star Trek: First Contact”; the dramatic TV series -- "Midnight Caller," "Jesse Hawkes," and "Nash Bridges," and over 30 commercials and industrials. He’s consulted with and appeared on the "NOVA," "Ancient Mysteries," "Sightings," and "Modern Marvels," "ESPNOutdoors" TV series and written over 100 outdoor TV shows for Engel's Outdoor Experience, Sports Afield TV and Bushnell's Secrets of the Wild. More at: www.jamesswan.com.
