The Journal of The DuPage County Bar Association

Back Issues > Vol. 23 (2010-11)

The Validity of Warrantless Administrative Searches During Fishing Regulation Enforcement
by Jamie Esser

Recreational fishing is not as regulation free as it used to be.[1] As with many sports, over time, more regulations are passed to ensure the quality and safety of the sport. Fishing is no exception. But along with regulation comes public disapproval, [2] usually because it is believed to be an invasion upon a fisherman’s privacy. At times fishing regulation enforcement seems invasive to a fisherman’s privacy. The root of this disapproval begins with a misunderstanding of the text and meaning of the Fourth Amendment, due in large part to the fact that it was ratified over 200 years ago, and because of the ever-evolving concept of the Fourth Amendment.[3] Over the years, the Fourth Amendment has been interpreted to include so many exceptions to the warrant requirement that requiring a warrant often seems to be the exception.[4] The Fourth Amendment is applied differently to administrative searches during fishing regulation enforcement than in traditional Fourth Amendment searches.[5]

State administrative agencies regulate and determine which officers have the authority to enforce fishing regulations within their state.[6] Often times, conservation officers are given the authority to enforce fishing regulations,[7] and every fisherman has likely encountered such an officer at least once. Conservation officers stop fishermen to check for a valid fishing license but can investigate much more.[8] These investigations, usually without a warrant, are authorized through state statutes and are generally upheld as being consistent with the Fourth Amendment and equivalent state law requirements.[9] Administrative investigations of a fishing boat, without a warrant, are generally constitutional under federal and state regulations due to a lower expectation of privacy and a lower reasonableness standard set out for administrative searches.[10] For administrative searches, “[a]lthough the Fourth Amendment ordinarily requires the degree of probability embodied in the term ‘probable cause,’ a lesser degree satisfies the Constitution when the balance of governmental and private interests make such a standard reasonable.”[11]

The governmental interest in protecting the fish population of each state is extremely important.[12] Most anglers understand the importance of catch-and-release for the continued existence of fish populations, and other state regulations of fish size and bag limits.[13] If state agencies did not implement fishing regulations and plans to restore fish populations, recreational fishing would have been gone years ago.[14] States such as Minnesota and Montana are known for their wildlife, especially their fishing, and continue to enforce proper fishing regulation and restoration of many of the state’s fish populations.[15] Protecting fish populations is a basis for why an administrative search of a fishing boat, without a warrant, is generally valid due to a lesser privacy interest that a fisherman has in a boat on a public waterway.

Searches by Administrative Agencies. While the Fourth Amendment protects the right of people to be free from unreasonable searches and seizures by requiring warrants and probable cause, probable cause is not the same in administrative and criminal situations.[16] The administrative agency at issue here for most fishing regulation enforcement is the Department of Natural Resources (DNR), or some equivalent state administrative agency, that delegates which officers enforce state fishing regulations and how to enforce them.[17] Two states directly on point here are Minnesota and Montana, because both states have very similar policies relating to DNR responsibility and inspections of boats, and both states are known for their recreational fishing.[18] The DNR has statewide responsibilities for managing the state’s natural resources, specifically fish and wildlife.[19] The DNR is also charged with enforcing fish and game regulations.[20]

The DNR delegates enforcement of administrative regulations, in which officers must abide by federal and state Fourth Amendment requirements.[21] However, the Fourth Amendment requirement of reasonable searches and seizures is interpreted differently in administrative investigations because they are not criminal investigations.[22] The Court in Marshall v. Barlow’s Inc. recognized Congress’s role in administrative searches and finding a balance between the public interest in regulatory statutes and in protecting individuals against unreasonable searches and seizures.[23] In administrative searches, “a search unsupported by probable cause may be reasonable when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’”[24] This concept can be applied to fishing regulations due to the importance of protecting fish populations throughout the state.

Validity of Searches During Fishing Regulation Enforcement.  The Fourth Amendment protects against unreasonable searches and seizures, but what is reasonable?[25] The Fourth Amendment does not indicate that the clause prohibiting unreasonable searches and seizures is connected to the clause about warrants or probable cause.[26] In light of the vagueness of the Fourth Amendment, the Court in Camara v. Municipal Court of San Francisco  determined reasonableness of a search by “balancing the need to search against the invasion which the search entails.”[27] When a DNR game warden is inspecting a boat pursuant to its statutory mandate to protect wildlife, the Fourth Amendment is applicable towards the search, but applied much differently than if the search was for a criminal purpose.[28] For many administrative searches, reasonableness does not always require probable cause. The central requirement of the Fourth Amendment is not whether there was a valid warrant, but one of reasonableness.[29] Reasonableness may be based on evidence of an existing violation or a showing that the administrative guidelines set out for conducting an administrative stop are based on neutral criteria.[30] The Supreme Court has interpreted reasonableness in the Fourth Amendment as the tool to control enforcement officers that may intrude upon an individual’s privacy rights, which sometimes requires a warrant.[31] But there are many exceptions to the warrant requirement, such as special needs of law enforcement officers, diminished expectations of privacy, and minimal intrusions— all of which apply to fishing boat inspections.[32]

Administrative investigations are not intended to produce evidence that could be used in criminal prosecutions or impose criminal sanctions such as jail time.[33] Due to the very nature of administrative investigations, courts have given administrative officers a more relaxed interpretation of probable cause to aid in the efficiency and enforcement of agency regulations.[34] From this relaxed view of probable cause in administrative regulations, the DNR is able to successfully enforce its regulations that are designed to protect fish and wildlife. Although probable cause is relaxed and often non-existent due to the nature of a fisherman’s diminished expectation of privacy in a fishing boat,[35] the Fourth Amendment and equivalent state laws are still being complied with by state administrative agencies.[36] To determine the validity of such fishing regulation enforcement, expectation of privacy and reasonableness of the search must be evaluated in each case.

Expectation of privacy. Only a reasonable expectation of privacy is one that justifies protection by the Fourth Amendment.[37] The expectation of privacy in DNR investigations and criminal investigations are much different because criminal investigations tend to be more intrusive due to possible criminal punishment.[38] Fishing regulation violations usually result in fines or loss of a fishing license.

Also, a warrant is usually not required when searching a fishing boat due to the limited privacy one has in a fishing boat. Due to the design of a fishing boat and because of the plain view doctrine, the Fourth Amendment does not protect objects in plain view.[39] Unfortunately for fisherman, most objects are in plain view. An impermissible search and seizure under the Fourth Amendment[40] and equivalent state laws only occurs when a reasonable expectation of privacy has first been invaded.[41] From this reduced expectation of privacy, the standard for reasonableness under the Fourth Amendment is somewhat relaxed and takes the form of a balancing test between an individual’s privacy interest and society’s interest in the administrative search being performed without a warrant.[42]

A reduced expectation of privacy is evident in State v. Colosimo where a conservation officer approached a fishing boat that was about to be launched onto a public lake in Minnesota.[43] The court stated that a conservation officer has the right to inspect a fishing boat without probable cause, because a fisherman has such a diminished expectation of privacy in his fishing boat.[44] Colosimo shows the importance Minnesotan’s put on fishing violations.[45] Reinforcing how Minnesota feels about fishing is a 1998 amendment to Minnesota’s Constitution stating, “[h]unting and fishing and the taking of game and fish are a valued part of our heritage that shall be forever preserved for the people and shall be managed by law and regulation for the public good."[46] The court clearly reinforces this goal by holding that a fisherman has no reasonable expectation of privacy anywhere in his boat where fish can be transported.[47]

The court in State v. Larsen held that a warrant was required for a conservation officer to enter a fish house.[48] The court compared the expectations of privacy in a fish house to a regular house because they both provide shelter, and a place to eat and sleep.[49] And because the court found that Larsen had a reasonable expectation of privacy in his fish house, the court required conservation officers to obtain a warrant before entering a fish house.[50] So while some courts could have found a lesser expectation of privacy in a fish house, much of what courts find reasonable depends on each state’s specific statutes and priorities.[51] For example, Minnesota states that it is their policy to protect fish populations,[52] but not all states are such advocates for recreational fishing.

Reasonableness of the Search.  One definition of reasonable is “whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.”[53] For example, Minnesota’s Constitution directly advocated their policy to protect fish populations for the public good.[54] But most courts have taken somewhat of a balancing approach to determine reasonableness of a search by balancing governmental and private interests at stake.”[55] Specifically, New York v. Burger set up a standard to determine the reasonableness of an administrative search, without a warrant, with respect to automobile junkyards.[56] This standard includes whether: (1) there is a substantial government interest behind the regulatory scheme pursuant to the administrative inspection; (2) the warrantless inspection must be necessary to further the regulatory scheme; and (3) the inspection program set out by statute must provide an adequate substitute for a warrant in limiting officer discretion for inspections.[57]

The factors in Burger take into account individual privacy and government interests and goals of enforcing such administrative regulations.[58] But because fishing regulation enforcement is administrative, and not criminal, more leeway is given to reasonableness requirements because administrative investigations typically are not personal in nature nor are they aimed to discover evidence of a crime.[59] Due to this fact, administrative searches involve a limited invasion of a fisherman’s privacy rights.[60] Burger also states that the inspection program must be a valid substitute for a warrant.[61] In order to do this, the inspection plan for the DNR to check fishing licenses must be somewhat equivalent to a neutral magistrate issuing a warrant, which would be impartial and have the same effect of randomly checking fishermen for licenses.[62] So even under the broad scope administrative searches tend to have, it is still unreasonable for a conservation officer to always pull over the same boat to check for a fishing license.

Conclusion. In evaluating the expectation of privacy a fisherman has in a fishing boat and the reasonableness of a search by a conservation officer, fisherman may have less privacy than they thought but it is still reasonable under Fourth Amendment requirements. The courts in many of the stated cases are balancing the needs of the individual against the governmental interest.[63] Therefore, it is easier to find a search reasonable and effectuate the government’s interest in preserving fish populations when a state has written policies to protect fish populations. Such administrative searches are also found reasonable because the invasion of privacy is minimal when compared to a person’s home.[64]

So at first glance, a conservation officer’s investigation of fishing boats seems unlawful and invasive to fisherman.[65] But now, from understanding the comprehensive reasonableness test used to determine if a search is reasonable, the fishing boat cases discussed validly adhere to Fourth Amendment requirements.[66]

Having a more relaxed reasonableness requirement for administrative investigations is justified when one understands a state’s interest in protecting fish populations throughout the state. By allowing a lower standard of probable cause when enforcing fishing regulations, conservation officers are allowed to effectively prosecute fishing violations. If these exceptions did not exist, fish populations all over the United States may slowly diminish.[67] Courts in Minnesota and Montana tend to find that a fishermen’s privacy rights are not sacrificed when they are only giving up a small amount of such privacy to further the goals of the DNR to protect fish and wildlife throughout the states.[68] All of the principles discussed above should be considered next time you pack your fishing pole to take a relaxing trip out on the lake. Even though the lake does not have traditional law enforcement officers, your privacy may still be challenged to better enforce fishing regulations.

[1] See Minnesota Fishing Regulations 09, Minnesota Department of Natural Resources, http://files.dnr.state.mn.us/rlp/regulations/fishing/fishing2009.pdf (last visited Feb. 13, 2010) (showing that states have booklets filled with fishing regulations).

[2] See Kim Russell, Fighting Over Fish: Should Commercial Walleye Fishing be Banned?, Mid Mich. News, Dec. 11, 2009, http://www.connectmidmichigan.com/news/story.aspx?id=389345 (stating that commercial and recreational fisherman are arguing whether the regulations the Department of Natural Resources has passed are a good idea).

[3] See Almeida-Sanchez v. United States, 413 U.S. 266, 277 (1973) (Powell, J., concurring); Camara v. Mun. Court of S.F., 387 U.S. 523, 533 (1967); Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring).

[4] See Brigham City, Utah v. Stuart, 547 U.S. 398, 406 (2006) (holding police may enter a home without a warrant to protect persons from harm); Arizona v. Hicks, 480 U.S. 321, 326-27 (1987) (stating the plain view exception to the warrant requirement); Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973) (stating a consent exception to the warrant requirement); Carroll v. United States, 267 U.S. 132, 156 (1925) (stating an automobile exception to the warrant requirement).

[5] See Marshall v. Barlow’s Inc., 436 U.S. 307, 334-35 (1978). Compare Minn. Stat. § 97A.205 (2009) and Minn. Stat. § 97A.215 (2009), with Mont. Code Ann. § 87-1-502 (2009) and Mont. Code Ann. § 87-1-506 (2009) (showing that Minnesota and Montana have similar fishing regulations).

[6] See Minn. Stat. § 15.01 (2009).

[7] See Minn. Stat. § 97A.205 (2009); Mont. Code Ann. § 87-1-502 (2009).

[8] See, e.g., Minn. Stat. § 97A.215 (2009); Mont. Code Ann. § 87-1-502 (2009).

[9] See, e.g., U.S. Const. Amend. IV; Minn. Const. Art. I, § 10; Mont. Const., art. II § 11; Minn. Stat. §§ 97A.205, 97A.215 (2009); Mont. Code Ann. §§ 87-1-502, 87-1-506 (2009).

[10] See State v. Colosimo, 669 N.W.2d 1, 17-22 (Minn. 2003); State v. Larsen, 650 N.W.2d 144, 154 (Minn. 2002); State v. Boyer, 42 P.3d 771, 778-79 (Mont. 2002); Terry v. Ohio, 392 U.S. 1, 20 (1968) (holding that a lesser degree of probable cause is valid for a pat down search after an officer has already arrested the defendant because it is considered an administrative search).

[11] Terry, 392 U.S. at  20.

[12] See Minn. Const. Art. XIII, § 12 (stating that Minnesota directly advocates for protecting fish populations).

[13] See Vince Meyer, Where Have All the Big Pike Gone? New Management Strategy Aims to Restore Glory Days of Minnesota Pike Fishing, Fish & Wildlife Today, Nov.-Dec. 2000, http://www.dnr.state.mn.us/fwt/back_issues/november00/article5.html [hereinafter Meyer, Management Strategy Aims].

[14] Id.

[15] Id; Montana’s Official State Website, Big Year in Big Hole for Future Fisheries Restoration, http://fwp.mt.gov/habitat/futurefisheries/bigHole.html (last visited Jan. 5, 2010) (outlining Montana’s plan that restored the endangered species of Arctic grayling fish).

[16] Marshall v. Barlow’s Inc., 436 U.S. 307, 334-35 (1978).

[17] See, e.g., Minn. Stat. § 15.01 (2009).

[18] Compare Minn. Stat. § 97A.205 (2009) and Minn. Stat. § 97A.215 (2009), with Mont. Code Ann. § 87-1-502 (2009) and Mont. Code Ann. § 87-1-506 (2009) (showing that Minnesota and Montana have similar fishing regulations).

[19] Minnesota Department of Natural Resources, http://www.dnr.state.mn.us/fishwildlife/index.html (last visited Jan. 5, 2010); Montana’s Official State Website, http://dnrc.mt.gov/About_Us/about.asp (last visited Jan. 5, 2010).

[20] See, e.g., Minn. Stat. § 97A.201 (2009) (“The commissioner shall execute and enforce the laws relating to wild animals. The commissioner may delegate execution and enforcement of the wild animal laws to the director and enforcement officers.”).

[21] See Duncan v. Louisiana, 391 U.S. 145, 148 (1968) (holding that the Fourth Amendment protecting against unreasonable searches and seizures is applicable to the states through the Due Process Clause of the Fourteenth Amendment).

[22] Marshall v. Barlow’s Inc., 436 U.S. 307, 334-35 (1978).

[23] Id. at 335.

[24] Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 829 (2002) (holding that a school was allowed to drug test students without probable cause because it was not related in any way to criminal investigations).

[25]See U.S. Const. Amend. IV.

[26] Id.

[27] 387 U.S. 523, 536-37 (1967) (holding that a warrant and a lesser degree of probable cause would be needed for a building inspector to inspect an apartment).

[28] Marshall v. Barlow’s Inc., 436 U.S. 307, 320 (1978).

[29] See Illinois v. McArthur, 531 U.S. 326, 330 (2001), citing Texas v. Brown, 460 U.S. 730, 739 (1983).

[30] Marshall, 436 U.S. at 320-21.

[31] McArthur, 531 U.S. at 330, citing Texas v. Brown, 460 U.S. at 739 (holding that an officer was allowed to seize a balloon that was filled with heroin after looking into the vehicle at a driver’s license checkpoint because it was in plain view from outside the window).

[32] Id. at 330-31.

[33] Wyman v. James, 400 U.S. 309, 317-18 (1971).

[34] See State v. Colosimo, 669 N.W.2d 1, 6 (Minn. 2003).

[35] Id.

[36] Compare Brigham City, Utah v. Stuart, 547 U.S. 398, 398 (2006) (holding police may enter a home without a warrant to protect persons from harm), with United States v. Villamonte-Marquez, 462 U.S. 579, 587-88 (1983) (discussing the exigency that comes with searching a vessel on open water).

[37] See Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring).

[38] Camara v. Mun. Court of S.F., 387 U.S. 523, 530 (1967).

[39] See Arizona v. Hicks, 480 U.S. 321, 323-27 (1987).

[40] See, e.g., U.S. Const. amend. IV; Minn. Const., art. I, § 10; Mont. Const., art. II § 11.

[41] See State v. Boyer, 42 P.3d 771, 775 (Mont. 2002).

[42] See Camara, 387 U.S. at 533.

[43] See State v. Colosimo, 669 N.W.2d 1, 2-3 (2003).

[44] Id. at 13-14.

[45] Id.

[46] Minn. Const. art. XIII, § 12.

[47] Colosimo, 669 N.W.2d at 8.

[48] State v. Larsen, 650 N.W.2d 144, 153-54 (Minn. 2002);

[49] Id.

[50] Id.

[51] See, e.g., Minn. Const. art. XIII, § 12 (stating that Minnesota considers it public policy to protect fish populations); See United States v. Chadwick, 433 U.S. 1, 12-13 (1977) (evaluating the expectations of privacy based on factors such as mobility of the vehicle and exposure to the public’s eye).

[52] See Minn. Const. art. XIII, § 12 (stating that Minnesota considers it public policy to protect fish populations).

[53] See Camara v. Mun. Court of S.F., 387 U.S. 523, 533 (1967).

[54] See Minn. Const. art. XIII, § 12.

[55] Terry v. Ohio, 392 U.S. 1, 20 (1968) (holding that a lesser degree of probable cause is valid for a pat down search after an officer has already arrested the defendant because it is considered an administrative search).

[56] 482 U.S. 691, 702-03 (1987).

[57] Id.

[58] See Burger, 482 U.S. at 702-03; Camara v. Mun. Court of S.F., 387 U.S. 523, 534-37 (1967).

[59] Camara, 387 U.S. at 535-37.

[60] Id.

[61] See Burger, 482 U.S. at 702-03.

[62] See Muehler v. Mena, 544 U.S. 93, 98 (2005) (stating that the presence of a warrant ensure that a neutral magistrate has determined probable cause exists to search).

[63] See Burger, 482 U.S. at 702-03; Camara, 387 U.S. at 534-37.

[64] Compare State v. Boyer, 42 P.3d 771, 773 (Mont. 2002) (stating that society does not recognize a legitimate expectation of privacy in a fishing boat), with Camara, 387 U.S. at 534-37 (stating that society does recognize a legitimate expectation of privacy in one’s home).

[65] See State v. Colosimo, 669 N.W.2d 1, 2-4 (2003); State v. Boyer, 42 P.3d 771, 773 (Mont. 2002).

[66]See Camara, 387 U.S. at 533.

[67] See Scott Witty, Comment, It’s a Keeper: Preserving Minnesota’s Recreational Fishing by Allowing Effective Regulatory Enforcement, 26 Hamline J. Pub. L. & Pol’y 151, 192-94 (2004); Take Me Fishing, http://www.takemefishing.org/fishing/fishopedia/fishing-and-conservation/the-importance-of-fishing-laws (last visited Jan. 5, 2010).

[68] E.g., Minn. Stat. § 97A.201 (2009).

Jamie Esser is a third year student at the Northern Illinois University College of Law, expected to graduate in May 2011, where she serves as Assistant Editor of the Law Review.  She received her Bachelors in Psychology and Art History in 2004 from the University of Wisconsin-Milwaukee.

 
 
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