'12 check on hunter ruled illegal search

Game & Fish violated rights, court finds

The Arkansas Court of Appeals ruled Wednesday that a routine inspection by state game wardens violated the man's constitutional rights and ordered the man's case retried in circuit court.

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In a 6-3 split, the court found that the arrest and eventual conviction of Jimmy Pickle on a charge of being a felon in possession of firearms, as well as drug charges, were triggered by a no-warrant and indiscriminate search by Game and Fish Commission agents while Pickle was duck hunting in Craighead County in late 2012.

The Fourth Amendment to the U.S. Constitution prohibits "unreasonable searches and seizures" and says search warrants can't be issued without "probable cause."

Pickle had tried to have evidence obtained by the agents suppressed in his Craighead County Circuit Court trial, arguing that agents illegally invaded his privacy, but upon losing that motion, pleaded guilty to the crimes and was sentenced to 60 months of probation and fines.

On Wednesday, appellate Judge Larry Vaught, joined by four others, sided with Pickle and wrote that the broad powers used by Game and Fish Commission agents must adhere to the same scrutiny applied to other law enforcement officials.

"This case involves a seizure implicating the protections of the [U.S.] Fourth Amendment ... and there is no legal authority exempting identity from the protections [of the amendment]," Vaught wrote. "In the absence of reasonable suspicion, law enforcement activity must be governed by a plan of explicit, neutral limitations that prevent game wardens from unbridled discretion."

Joined by judges Bill Walmsley and David Glover in his dissent, Chief Judge Robert Gladwin wrote that state game wardens asking for a hunter's license, even without suspicion, is not only constitutional but also expected, given that hunting activities are privileges and subject to state and federal regulation.

"The highly dangerous and regulated nature of hunting and fishing demands compliance checks, including questioning and checking of hunting and fishing equipment and licenses, even though similar actions might not be reasonable outside [that context]," Gladwin wrote. "[The Game and Fish Commission] has a special governmental need outside the ordinary law-enforcement context to have its wildlife officers stop hunters and fishers. ... [Officers] act not only as law enforcers but as public trustees."

Game and Fish Commission Director Mike Knoedl has been a game warden for 25 years and said the ruling will hurt enforcement of state laws and regulations by barring his agency's customary practice of "field checks."

"This is huge," Knoedl said. "What they're saying is: We need a written plan before we can actually check someone, or see that person commit a violation, before we even approach them. That renders our wildlife officers ineffective."

Knoedl described the ruling as "problematic" and said he will ask the attorney general's office to petition the Supreme Court for an appeal.

The case began when Pickle, joined by a friend and the friend's son, was duck hunting in November 2012 in woods near the Cache River in Craighead County.

Two Game and Fish Commission officers spotted them and observed them for two hours, and though they saw nothing illegal or suspicious, they approached the men's camp while they were making breakfast.

The officers asked for proof of hunting licenses, inspected the hunters' weapons and cited the friend and the friend's son for weapon and ammunition violations.

Pickle told the men he had left his license in his truck but gave them his name. They ran his name through the state database and found he was licensed. They then ran his name through a warrant check and discovered that Pickle, who had been carrying a shotgun, was a convicted felon.

He was arrested on-site, and officers found methamphetamine and drug paraphernalia in his possession, according to court records.

Pickle argued that both the state and the federal constitutions protect him from no-warrant searches and that commission wardens were held to the same standards as police or sheriff's office deputies.

Pickle's attorneys pointed to a U.S. Supreme Court case from 1979, which found that police could not randomly pull over a car at their own discretion and that they needed proper suspicion or cause to do so.

They disputed the argument that hunters should be subject to searches because of the "highly regulated activity" they are involved in, stating that the operation of a motor vehicle is even more regulated, yet officers cannot indiscriminately pull over cars to check for driver's licenses.

The attorneys argued that there is no law that gives the Game and Fish Commission more rights than other law enforcement.

"Officers did not have even an imaginary or conjectural belief that a crime was afoot. They merely believed they could stop and detain [Pickle] ... search him, because he was hunting ducks and duck hunting was under the control of their agency," they argued in their brief. "The Fourth Amendment protects all of us from that type of mind set."

State attorneys argued that past federal and state rulings have held that hunters are entitled to less privacy than an average citizen in public.

They also pointed to well-documented rules distributed in state hunting guidebooks that tell hunters it is illegal to "refuse" an officer's request to inspect a license or equipment.

They also point to high court rulings in Louisiana, Minnesota and Montana that upheld game wardens' rights to routinely "conduct warrantless, suspicion-less hunting-compliance checks without violating the Fourth Amendment."

On Wednesday, the court majority rejected arguments by state attorneys, saying the contact with Pickle constituted a seizure and one without a warrant.

The court wrote that the officers needed a "sufficient plan of explicit, neutral limitations" to govern their searches. Absent that, they wrote, the routine searches by game wardens was an exercise in "unbridled discretion" and such a search violated Pickle's rights.

In his dissent, Gladwin argued that the practice of spot-checking hunters was "neutral" in its criteria and that the stop, search and subsequent arrest were legal.

Knoedl, the Game and Fish Commission director, said the the court's ruling wrongfully leaned on an older Arkansas Supreme Court case involving the voided DWI arrest of a boater by commission officers during a safety check on Lake Hamilton.

In that case, a game warden stopped a boat for a no-warrant, safety-compliance check, and though he saw no violations, he found that the boat operator had been drinking and arrested him.

That arrest was struck down by the Supreme Court, but Knoedl argued the circumstances were not parallel.

State attorneys argued that in the Lake Hamilton case, the warden involved in the inspection was using only his discretion and not the "neutral standard" used by wardens when approaching hunters.

"We don't profile and we don't discriminate. ... That's how we've always worked and hopefully always will work," Knoedl said. "Not throwing darts at anybody, but people make decisions based on what they believe or what they think they know. ... These [judges] sitting up there, they may have heard a story, but I venture to say that those folks who voted against [us] don't know a lot about the outdoors."

A section on 12/18/2014

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