Posted by Eugene Volokh:
Hunting Violation Checkpoints:
http://volokh.com/archives/archive_2009_09_06-2009_09_12.shtml#1252620396
The [1]Sacramento Bee reports:
The California Department of Fish and Game will stage three
roadside checkpoints in Placer County on Sunday in an effort to
catch hunting violations....
"The checkpoint is there to find violations of the Fish and Game
Code," said Placer County Game Warden Brian Moore. "It could be
anything -- out of season hunting or animals that are fully
protected -- that could come through." ...
Wardens will stop vehicles to inquire about hunting and fishing
activity and check licenses.
That's pretty clearly a Fourth Amendment violation, under the Supreme
Court's decision in [2]City of Indianapolis v. Edmond (2000), which
held that similar checkpoints aimed at uncovering drug couriers were
unconstitutional. Here's a relevant excerpt from Edmond:
The Fourth Amendment requires that searches and seizures be
reasonable. A search or seizure is ordinarily unreasonable in the
absence of individualized suspicion of wrongdoing. Chandler v.
Miller, 520 U.S. 305, 308 (1997). While such suspicion is not an
"irreducible" component of reasonableness, we have recognized only
limited circumstances in which the usual rule does not apply.
For example, we have upheld certain regimes of suspicionless
searches where the program was designed to serve "special needs,
beyond the normal need for law enforcement." ... We have also
upheld brief, suspicionless seizures of motorists ... at a sobriety
checkpoint aimed at removing drunk drivers from the road, Michigan
Dept. of State Police v. Sitz, 496 U.S. 444 (1990). In addition, in
Delaware v. Prouse, 440 U.S. 648, 663 (1979), we suggested that a
similar type of roadblock with the purpose of verifying drivers'
licenses and vehicle registrations would be permissible. In none of
these cases, however, did we indicate approval of a checkpoint
program whose primary purpose was to detect evidence of ordinary
criminal wrongdoing....
In Sitz, we evaluated the constitutionality of a Michigan highway
sobriety checkpoint program. The Sitz checkpoint involved brief
suspicionless stops of motorists so that police officers could
detect signs of intoxication and remove impaired drivers from the
road. Motorists who exhibited signs of intoxication were diverted
for a license and registration check and, if warranted, further
sobriety tests. This checkpoint program was clearly aimed at
reducing the immediate hazard posed by the presence of drunk
drivers on the highways, and there was an obvious connection
between the imperative of highway safety and the law enforcement
practice at issue. The gravity of the drunk driving problem and the
magnitude of the State's interest in getting drunk drivers off the
road weighed heavily in our determination that the program was
constitutional....
We further indicated in Prouse that we considered the purposes of
... a hypothetical [license and registration verification]
roadblock to be distinct from a general purpose of investigating
crime. The State proffered the additional interests of "the
apprehension of stolen motor vehicles and of drivers under the
influence of alcohol or narcotics" in its effort to justify the
discretionary spot check. We attributed the entirety of the latter
interest to the State's interest in roadway safety. We also noted
that the interest in apprehending stolen vehicles may be partly
subsumed by the interest in roadway safety. We observed, however,
that "[t]he remaining governmental interest in controlling
automobile thefts is not distinguishable from the general interest
in crime control." Not only does the common thread of highway
safety thus run through Sitz and Prouse, but Prouse itself reveals
a difference in the Fourth Amendment significance of highway safety
interests and the general interest in crime control....
So highway checkpoints aimed at interdicting threats to highway
traffic themselves are generally constitutional (which may also help
explain airport searches). But suspicionless highway checkpoints aimed
at catching people who commit other crimes, whether drug trafficking
or illegal hunting, are generally not constitutional (unless some
other exception kicks in, and none of those would apply here).
Thanks to Gregory Broderick for the pointer.
References
1.
http://www.sacbee.com/static/weblogs/crime/archives/2009/09/checkpoints-due.html
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-1030
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