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Search and Seizure For The Oklahoma Game Warden

By Brian Surber, Deputy General Counsel, OBN

Oklahoma State Game WardenSearch 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 tips.

Probable Cause:
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?).

Reasonable Suspicion:
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 why (i.e., more than a hunch). The application of reasonable suspicion to 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, you do 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! !

Game Bags:
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.

Duck Blinds:
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 Miranda.

Closing Thoughts:
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.

Brian Surber
Deputy General Counsel
Oklahoma Bureau of Narcotics
4545 N. Lincoln, Ste 11
Oklahoma City, Oklahoma 73105



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