Search and Seizure For
The Oklahoma Game Warden
By Brian Surber, Deputy General Counsel, OBN
Search and Seizure under the Fourth Amendment can be quite complicated
and the challenges faced by game wardens in this area of criminal
law can be frustrating at times. However, here are a few simple
A game warden needs probable cause to arrest and probable cause
to search. Forget all of the hoopla surrounding the definition
of probable cause. It is simply a FAIR PROBABILITY. Just ask
yourself, With the facts I know, is there a fair probability
that: (1) I'll find some evidence, (2) the suspect committed
the crime (i.e., if you hear a high powered rifle shot in late
November, forty-five minutes later the suspect walks out of the
woods with blood on
his hands and pants, is there a FAIR
PROBABILITY that he shot a deer?).
You need a reasonable suspicion to detain a suspect or stop his
vehicle. The courts have defined this as "much
less demanding than probable cause and
considerably less than a preponderance."
That means that your suspicion could be
flat out wrong a considerable majority of the
time. That is not much guidance
and this is a tricky area of law. You
should be okay if (1) you are suspicious, and (2) you can articulate
(i.e., more than a hunch). The application of reasonable suspicion
weapons searches will be addressed it a future article.
Tips for Articulating Probable Cause
and Reasonable Suspicion:
Expert Testimony: Rather than a judge or prosecutor telling you
whether you have probable cause or a reasonable suspicion, you
are more equipped to tell them. Not one class in law school, training
I have attended, or treatise I have read ever told me anything
about what was or was not probable cause over and above what I
outlined above. What I know about probable cause relating to wildlife
violations I learned from the wardens when I was a prosecutor. Great
deference is given to the training and experience of the officer
in the field. More so than many other areas of law enforcement,
game wardens have particularized training and experience. Here
is the trick: You must be able to describe to your prosecutor or
judge why you thought this activity was suspicious. For instance,
if you are set up on surveillance, don't just say that I observed
the defendant's vehicle traveling at a suspicious speed. Rather,
say that you have observed dozens of vehicles traveling down this
road, farmers and local residents travel at approximately X speed,
this vehicle was in an area known for road hunting, the vehicle
traveled at a speed consistent with deer poaching and the occupants
appeared to be scanning the clearings, etc.
Vehicles & Boats:
If you have probable cause to
search a mobile vehicle or boat you do not need a warrant. Because
vehicles and boats are mobile and heavily regulated by society,
not need a warrant to conduct a probable cause search of a vehicle.
The Supreme Court has even held that an officer does not need a
search warrant to conduct a search of a parked motor home if that
officer has probable cause.
Tents and Campsites:
Many times you may come across tents and campsites during your
investigations. The federal and state courts that have addressed
tents have held that a tent cannot be searched without a warrant
even if the officer has probable cause unless there is an exigent
circumstance (some indication that the evidence will disappear
if the officer takes the time to get a warrant). This leaves
an interesting scenario: Two campsites sit next to one another.
One holds a tent, one holds a motorhome and you have probable
cause for both. You probably need a warrant to search the tent,
but no warrant needed for the motorhome. What about a pop-up
trailer? Call your prosecutor! !
There is little question that if a game warden has probable cause,
he or she can search the game bag without a warrant. The courts
allow this because if you took the time to get a warrant, the
evidence would likely go away The more interesting question is
whether the bag can be searched if the person is merely hunting.
It would depend whether you could articulate probable cause to
believe a crime had been or was about to be committed.
Would you believe that there is not a single published state or
federal case involving a probable cause search of a duck blind?
That absence notwithstanding, I feel quite comfortable telling
you all that you may search a duck blind without a warrant if
you have probable cause. The reasoning behind requiring a warrant
for a tent is that an erected tent is a temporary home and a
person's home is the most sacred and protected place under Fourth
Amendment law. I do not believe that a duck blind would be afforded
the protections of a residence.
Let's suppose you don't have probable cause or reasonable suspicion,
but you still think something is awry. You can always simply carry
on a consensual conversation or you can always request consent
to search. Don't worry about justifying WHY you asked consent -
you don't need a reason. The U.S. Supreme Court has specifically
endorsed officers walking up to people with no suspicion whatsoever
and asking potentially incriminating questions. Just remember that
the consent must be voluntary. So, be able to articulate in your
report that the defendant was not promised anything or succumbing
to coercion when he granted you consent to search.
Search Incident to Arrest:
Generally, an officer may search the entire passenger compartment
of a vehicle incident to the arrest of an occupant of the vehicle.
However, "arrest" in this context means the taking
the person into custody, not the issuing of a citation. However,
in most instances when you have probable cause to arrest or issue
a citation for a wildlife violation, would there not be a fair
probability some evidence of that violation would be located
in the vehicle he is or was occupying (e.g., mobile vehicle search)?
Although it should be a simple concept, criminal justice professionals
have struggled with the application of Miranda. You must have two
things for Miranda to be applicable and YOU MUST HAVE BOTH:
1. Custody: The suspect must be in custody. If not, then there
is no need to administer Miranda. Custody for Miranda purposes
is either formal arrest or the restraints associated with formal
arrest (i.e., handcuffed, placed in a cell, etc). Even if the suspect
is not free to leave (detained), Miranda is not applicable unless
there is custody as described above. Finally, custody is not the
administering of a citation for a violation.
2. Interrogation: If you do not ask questions, Miranda is totally
inapplicable. A suspect is free to talk to you without Miranda,
so long as his talking is not in response to your questioning.
Remember, you must have both or there is no requirement to administer
Inevitably, many of you will face some search and seizure question
without a clear answer. Feel free to call or email me at OBN Headquarters
anytime you have a question. If it is after hours, then you can
still call our dispatcher and they can page me 24 hours a day.
Do not worry about bothering me. The one aspect of working in a
district attorneys office that I miss is working with my game wardens.
You'd be doing me a favor by asking me to help you out. Thanks
for taking the time to read this and Happy Hunting.
Deputy General Counsel
Oklahoma Bureau of Narcotics
4545 N. Lincoln, Ste 11
Oklahoma City, Oklahoma 73105